Meiter v. Cavanaugh

• Decision Date: 16 March 1978
• Docket Number: No. 77-013,77-013
• Parties: Hazel MEITER, Plaintiff-Appellee, v. Frank M. CAVANAUGH, Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 399

580 P.2d 399

40 Colo.App. 454

Hazel MEITER, Plaintiff-Appellee, v. Frank M. CAVANAUGH, Defendant-Appellant.

No. 77-013.

Colorado Court of Appeals, Div. I.

March 16, 1978.

Rehearing Denied April 6, 1978.

Certiorari Denied July 3, 1978.

Raphael M. Solot, Denver, for plaintiff-appellee.

Myles J. Dolan, Arvada, for defendant-appellant.

PIERCE, Judge.

Defendant appeals from an adverse judgment entered upon a jury verdict, alleging that plaintiff failed to establish a prima facie case of intentional infliction of emotional distress by outrageous conduct. Defendant also argues that the evidence is insufficient to justify the award of $5,500 in actual and $10,000 in exemplary damages. We affirm the judgment in its entirety.

Because we are presented with the question of whether the trial court erred in refusing to grant defendant's motions for a directed verdict and judgment notwithstanding the verdict, we must review the record in a light most favorable to the plaintiff. Celebrities Bowling, Inc. v. Shattuck, 160 Colo. 102, 414 P.2d 657 (1966).

In March of 1973, plaintiff and defendant entered into a specific performance contract, under which plaintiff was to purchase defendant's home. Plaintiff wanted to buy the house for her grandchildren and recently widowed daughter-in-law. The contract provided that defendant would have a right to retain possession of the property on a rental basis for a period not to exceed six weeks after the delivery of the deed. Since the deed was delivered at the closing on April 12, 1973, defendant's rental period ended on May 25, and plaintiff was entitled to exclusive possession on May 26.

Sometime in late May or early June, plaintiff went to the house to inquire about the surrender of possession. Defendant informed her, for the first time, that he would be unable to move until the end of his children's school term, sometime in early June. Plaintiff explained that her daughter-in-law desperately needed a place to stay. Defendant became quite belligerent, and responded, "Well, as far as that's concerned, you can move (her furniture) up in that shanty. When I get out, you can roll it down the hill."

During another early June encounter, defendant told plaintiff, "I'm an attorney. I know my rights. I'll move when I'm damn well ready." He also called plaintiff, who was visibly bandaged after recent cancer surgery, a "sick old woman."

On June 7, 1973, defendant mailed a letter to plaintiff notifying her that he was considering legal action. The letter implied that defendant had some special influence with the court:

"I am sure the local court known personally to me over the years, will appreciate my problem . . .. In fact, he may just break our contract, which would satisfy me and I will repay every cent of your money."

Meanwhile, plaintiff had to find another home for her daughter-in-law, and she purchased one on June 13, 1973. When defendant finally vacated in early July, plaintiff found that the premises had been damaged. Some windows were broken, a few sliding doors were untracked, and the lock on the back door was broken. Several outdoor light fixtures had been removed, and a built-in barbeque had been dismantled. After repairing some of this damage, plaintiff sold the house in December.

I.

The first question we must address is whether this conduct was sufficiently "outrageous" to withstand defendant's motions for a directed verdict and judgment notwithstanding the verdict. We hold that it was.

The tort of intentionally inflicting emotional distress by outrageous conduct was first recognized in this jurisdiction in Rugg v. McCarty, 173 Colo. 170, 476 P.2d 753 (1970). In that case, the Supreme Court adopted Restatement (Second) of Torts § 46 (1965) "Outrageous Conduct Causing Severe Emotional Distress (1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm."

The court went on to quote the Restatement's definition of extreme and outrageous conduct:

"Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!' "

The question of whether certain conduct is sufficiently outrageous is ordinarily a question for the jury. DeCicco v. Trinidad Area Health Ass'n, Colo.App., 573 P.2d 559 (announced September 15, 1977); Enright v. Groves, Colo.App., 560 P.2d 851 (1977). But it is for the court to determine, in the first instance, whether reasonable men could differ on the outrageousness issue. Blackwell v. Del Bosco, 35 Colo.App. 399, 536 P.2d 838 (1975), aff'd, Colo., 558 P.2d 563 (1976); Restatement (Second) of Torts § 46, Comment h. We believe that the conduct here lies so near the bounds of indecency that the question of whether it is actionably outrageous was properly left to the jury.

It is true that "plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind." Prosser, Insult and Outrage, 44 Cal.L.Rev. 40 (1956). But defendant's words and acts were more than rough, inconsiderate, and unkind. In refusing to vacate, defendant acted outside the scope of his legal rights under the lease. He compounded the situation not only by becoming generally belligerent, but also by referring to plaintiff's serious and unfortunate physical condition. Finally, the whole disagreement was inflamed by defendant's suggestion that, as an attorney, he would have some special...