Intentional Infliction of Emotional Distress

The tort of “extreme and outrageous conduct” in Colorado.

intentional infliction of emotional distress
Photo: Mateus Souza

Intentional infliction of emotional distress or, as it’s known in Colorado, “extreme and outrageous conduct” is often seen in the context of defamation, sexual assault, and drunk driving injury cases.

To be technically and legally correct, lawyers will use the defined Colorado legal term “extreme and outrageous conduct.” For our purposes, “intentional infliction of emotional distress” and “extreme and outrageous conduct” are interchangeable.

What do you have to prove to win your intentional infliction of emotional distress claim?

As the plaintiff, you have to prove certain elements to win your case.

As a plaintiff, you have to prove, by a preponderance of the evidence, that the defendant you’re suing engaged in a specific set of conduct.  The law breaks that conduct down into what are called “elements.”  In Colorado, to prove intentional infliction of emotional distress, you have to prove the following elements:

  1. The defendant engaged in extreme and outrageous conduct;
  2. The defendant did so recklessly or with the intent of causing you, the plaintiff, severe emotional distress; and
  3. The defendant’s conduct caused you, the plaintiff, severe emotional distress.

It’s important to note that if you do not prove any one of the above elements by a preponderance of the evidence, you lose your claim.

What the heck is “preponderance of the evidence?”

In the law, there are many burdens of proof. In civil law, the normal burden of proof is preponderance of the evidence.

If you look at Black’s Law Dictionary, the definition of preponderance of evidence is: victim of extreme and outrageous conduct

“An evidence presented that provides more convincement than the pre-existing evidence presented in court. As such, the jury makes its verdict in the favor of the party which has a preponderance of evidence.”

Confused yet?  Well, thankfully, Colorado law has simplified things:

“To prove something by a ‘preponderance of the evidence’ means to prove that it is more probably true than not.”

Therefore, in order to prove your intentional infliction of emotional distress claim, you must prove that the three above elements occurred, more likely than not.

What is “extreme and outrageous conduct?”

Not everyone’s definition might be the same.

So, how does the law define “extreme and outrageous conduct?” Well, under Colorado law, extreme and outrageous conduct is:

“Conduct that is so outrageous in character, and so extreme in degree, that a reasonable member of the community would regard the conduct as atrocious, going beyond all possible bounds of decency and utterly intolerable in a civilized community.”

emotional distress
Photo: máximo

Wait, what? “Atrocious?”  “Going beyond all possible bounds of decency . . .”  Are we talking about “Keeping Up with the Kardashians?”  Unfortunately, no.

The law goes on to say:

“Such outrageous conduct occurs when knowledge of all the facts by a reasonable member of the community would arouse that person’s resentment against the defendant, and lead that person to conclude that the conduct was extreme and outrageous.”

It’s a bit circular, I get it.  Examples we often cite to clients is the business owner who spreads a rumor that his competitor is a child molester in order to gain a competitive edge, or a domestic violence survivor who was subjected to a sustained pattern of coercion and control by her abuser.

In the end, it really depends on whether six strangers off the street, also known as jurors, can reach a consensus on whether the behavior you’re accusing the defendant of rises to the level of “outrageous conduct.”  If they don’t, you lose.

Can it be just one act or does it have to be a series of acts?

It depends.

emotional harm
Photo: cotton bro

The question we confront with our clients is whether or not one singular act in time is enough to rise to the level of outrageous conduct.  Again, as lawyers, we do what we always do: read the law:

“A series of acts may constitute outrageous conduct, even though any one of the acts might be considered only an isolated unkindness or insult.  A simple act of unkindness or insult, standing alone, does not constitute outrageous conduct. However, a single incident may constitute outrageous conduct if the incident would be so regarded by a reasonable member of the community.”

So, it’s probably not enough if a co-worker calls you the b-word in a meeting, but it might be enough if he yells out, “I saw you cheating on your wife with Suzy last Thursday night at Chili’s,” in front of your boss.

Again, it depends.  What would a “reasonable member of the community” think?

An unfortunate and all-too-often example of intentional infliction of emotional distress is domestic violence.  And while, yes, one can be criminally prosecuted for domestic violence, there’s no question that a domestic violence survivor can sue his/her abuser for extreme and outrageous conduct.  The risk is that the alleged abuser may countersue for defamation, which we’ve seen in a recent high profile Hollywood case.

But what if the person is just really sensitive and “can’t take a joke”?

If you know the person is susceptible to emotional distress, you might have a problem.

We all know that person: the person who can’t take a joke and is just so damned serious all the time.

Under Colorado law, the fact that you know that another person is peculiarly susceptible to emotional distress because of some physical or mental condition or peculiarity could elevate your conduct to the status of “extreme and outrageous.”

In the alternative, if you had no idea that the person was “peculiarly susceptible to emotional distress,” your conduct without that knowledge might not be extreme and outrageous.

That said, just because you know that another person will consider your conduct to be insulting or will have his or her feelings hurt does not, by itself, make the conduct “extreme and outrageous.”

But I didn’t do it on purpose.  I was just fooling around.

Reckless behavior is just as punishable under the law as intentional.

When we prosecute these claims, the defense we hear most often is, “I was just playing around,” or “I didn’t mean it.”

domestic violence victim
Photo: Daniel Reche

The law does not care.

Remember the elements of intentional infliction of emotional distress:

  1. The defendant engaged in extreme and outrageous conduct;
  2. The defendant did so recklessly or with the intent of causing you, the plaintiff, severe emotional distress; and
  3. The defendant’s conduct caused you, the plaintiff, severe emotional distress.

As plaintiff’s counsel, we only have to show that the defendant acted “recklessly.”

What does “reckless” mean?

A person has acted recklessly if, at the time, that person knew, or, because of other facts known to him or her, reasonably should have known that there was a substantial probability that his or her conduct would cause severe emotional distress in another person.

So, if we can prove that, more likely than not, the defendant (1) engaged in extreme and outrageous behavior; that (2) he acted recklessly; and (3) that defendant did, in fact, cause our client severe emotional distress, our client wins.  Full stop.

What is “severe emotional distress?”

extreme and outrageous conduct
Photo: Jameson Mallari

In an intentional infliction of emotional distress case, severe emotional distress can mean any number of things.

Under Colorado law, severe emotional distress consists of highly unpleasant mental reactions, such as nervous shock, fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, or worry, AND is so extreme that no person of ordinary sensibilities could be expected to tolerate and endure it.

When the jury is trying to determine the severity of one’s emotional distress, the duration and intensity of emotional distress are factors it will consider.

But, as you can see, it’s really a subjective, fact-specific determination that the jury has to make on its own.  And the jury must be unanimous.   Therefore, it’s critical that you have a good trial attorney that is comfortable working with juries and knows how to present his/her client’s case in a way that normal folks can understand and sympathize with.  It’s not enough to point your finger and say, “he caused me severe emotional distress.”  The jury has to agree with you.

The jury finds the defendant liable? How much money do I get?

Not only do YOU have to prove liability, you have to prove damages.

As in any civil case, you, the Plaintiff, have to prove how much your case is worth.  The same standard applies: by a preponderance of the evidence, or “more likely than not.”

broken heart
Photo: Burak Kostak

There are 3 categories of damages that the jury is going to consider in your intentional infliction of emotional distress case:

  1. Noneconomic injuries: Physical and mental pain and suffering, inconvenience, emotional stress, fear, anxiety, embarrassment, humiliation, public disgrace, indignity, impairment of the quality of life, and any other recoverable noneconomic losses for which there is sufficient evidence.  These are not only damages that have occurred up to the date of trial, but future damages as well.  Your attorney will work with an expert to construct a damages model for the jury that is not only rooted in good science, but one that is easily explainable and credible
  2. Economic losses: Loss of earnings or income; ability to earn money in the future; reasonable and necessary medical, hospital and other expenses; psychiatric care and/or counseling; and any other recoverable economic losses for which there is sufficient evidence.
  3. Physical impairment or disfigurement: And in cases where there was a physical injury, the jury shall consider damages related to your physical impairment or disfigurement.  These damages are considered separately from noneconomic and economic losses.

You need an experienced trial attorney for these cases.

Intentional infliction of emotional distress cases are complicated.  You need an experienced trial attorney.  Call the attorneys at Marathon Law today and schedule your confidential case evaluation. 303-704-1222.

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