*1 protect property within its action boundaries, although outside the bound- ELLIS, Plaintiff-Appellee, Tammie R. District, may the Water then it aries of duty to the fire district to have assumed hydrant. at the water available BUCKLEY, employee David M. an Associates, Inc., circumstances, the Dis
In such
Water
John E. Reid &
subject
liability
plain
may
trict
be
to the
Associates, Inc.,
E.
&
John
Reid
an
(Second)
pursuant
tiffs
to Restatement
corporation, Defendants-Appel-
Illinois
(1965)
adopted in
Torts
324A
first
De
§
lants.
402,
Co., 173 Colo.
Caire v. Public Service
No. 87CA1322.
(1971). That
(a) failure to exercise reasonable his harm, the risk of such
care increases
(b) perform a he has undertaken to
duty per- third owed other
son, or
(c) the harm is suffered because person
reliance of the other or third
upon undertaking. duty plaintiffs
The defendant’s is
question depends upon the reso of law by plaintiffs factual raised
lution of issues response to defendant’s motion for sum
mary judgment. Metropolitan Gas Service, Kulik,
Repair
mary judgment sought is entitled to the may all inferences that
benefit of favorable Churchey from the facts.
be drawn (Colo.
Adolph Coors
1988). ultimately factual must The issues by the trier of fact.
be determined judg
disposition by summary the action improper.
ment was summary judgment is reversed and trial court for
the cause is remanded to the proceedings.
further HUME, JJ., concur.
CRISWELL
876 Buckley fifteen minutes. in-
lasted about terpreted indicating the test as that results being in plaintiff deceptive was her re- sponses. a informed that As result he her test, polygraph she “failed” the and he had proceeded interrogate to her for over two post-test hours in a interview. During interrogation, according to that plaintiff, Buckley spoke in a harsh manner and asked her she had not money goods employer. her stolen from Buckley that did apparently She testified responses, not her denials or as he believe badgered throughout her interview. Buckley reported plaintiff’s em- then ployer analysis polygraph that his plaintiff deceptive test that was indicated result, plaintiff’s in her answers. As As employment terminated. a conse- losing quence job, plaintiff experi- her signs and enced insomnia other emotion- period al for a of time. distress action, alleging Plaintiff commenced this engaged that the defendants had in “out- rageous during post- conduct” the test and interview, negli- test and that were gent improperly reporting in the results of polygraph plaintiff examination. damages. sought exemplary also From a judgment jury’s in upon entered verdict Salmon, P.C., Law of John Offices G. claims, plaintiff favor of the on all this Anders, L. Den- John G. and Mark Salmon appeal followed. ver, for plaintiff-appellee. Colantuno, Morrato, Bieging, Burrus & I. P.C., Stephen and B. James J. Morrato F. Shapiro, Englewood, and Charles Mari- the trial Defendants contend no, Ill., defendants-appellants. Chicago, court erred their motion for plaintiff’s verdict on claim for Opinion by Judge PLANK. disagree. outrageous conduct. We employer, David his M. John prevail on claim of To Associates, Inc., appeal the E. Reid and conduct, plaintiff must establish that jury on verdicts favor entered defendants, by extreme and plaintiff, Ellis. We affirm. Tammie R. conduct, intentionally recklessly caused Associates, Inc., E. Reid and John distress. severe emotional conducting internal theft the business of 170, 476 753 173 Colo. P.2d McCarty, by investigations. It was hired (1970). Outrageous is that which investigate some employer tiff’s cash go “outrageous is so and extreme as to shortages had been discovered at the decency beyond possible all bounds plaintiff store where worked. utterly regarded to be atrocious community.” in a civilized request employer, At of her intolerable Hansen, examination, Colo.App. 608 polygraph Hansen v. submitted to Buckley and conducted which which was ages plaintiff.
The trial in the court is to determine Palmer v. A.H. persons 684 P.2d first instance whether reasonable Robins outrageousness issue. could differ legal duty A care use reasonable Colo.App. Cavanaugh, Meiter v. response risk of arises a foreseeable *3 If in the answered harm to others. Robins Palmer v. A.H. affirmative, question the of whether con Co., supra. standard of care owed sufficiently outrageous duct is to warrant providing in the person business of jury. award of for the damages an is one unique submitting services to to his those duty ordinary to services is the exercise the Here, the that evidence showed competence persons in skill and of other 20-year-old plaintiff escorted the providing of similar services. the business interrogation ques- he small room where Service, Metropolitan Repair Gas Inc. See for without tell- tioned her over two hours Kulik, ing Although her she could leave. background exemplary and no evi- Here, we conclude that the evidence (besides test) the polygraph dence indicated care. presented established the standard of wrong doing, accused any he witnesses, expert busi- Numerous the denials, despite theft her of her constant tests, conducting polygraph testi- ness of interrogation, even and continued the the standard of care that is adhered fied to attempt though crying, she was in an Furthermore, par- in the business. both obtain a confession from her. experts ties’ testified that would plaintiff’s that the results concluded test denying the for In defendant’s motion were inconclusive. there was evi- outrageous verdict on conduct the care, indicating both dence a standard of claim, the trial court that: stated standard, of and the and a breach that light plain- the “In the most favorable to jury one for the to resolve. matter became duty my I have with tiff ... no trouble judge say of that the
as
this court
III.
conduct would fit
the extreme
within
Lastly,
the
that
defendants contend
outrageous conduct.”
support
in the
the evidence
record does not
with
rea-
agree
We
the trial court that
exemplary damages.
We dis
an award
community
members
could
sonable
of the
agree.
Buckley’s
that
conduct
conclude
defendant
damages,
the
exemplary
award
To
outrageous.
here was
v. McCar-
accompanied
wrongful act must have been
trial
did
ty, supra. Accordingly, the
court
dis-
by wrongful
or a reckless
motive
not err in
the defendants’ motion
plaintiff’s rights.
Mari
regard for a directed verdict.
Equipment
721 P.2d
Wagner
damages
An
(Colo.App.1986).
award of
II.
unless it is
appeal
be disturbed on
will not
unsupported by the record.
completely
that
Defendants next contend
Here, we
Cavanaugh, supra.
Meiter
negligence
not have been
claim
should
in the record
the evidence
conclude
the jury
submitted to
because
thus,
award,
we
jury’s
supports
care. We
failed to establish a
standard
damage
exemplary
not disturb
will
disagree.
appeal.
award
Here,
prevail
negligence,
on a claim of
Accordingly, the
is affirmed.
plaintiff must
that the defen-
establish
conducting
duty
dant
of care
breached
PIERCE, J., concurs.
analyzing and
polygraph
test and
*, J.,
results, thereby causing dam-
dissents.
reporting the
HODGES
*
10B).
24-51-1105,
(1988 Repl.Vol.
assignment
Sitting by
C.R.S.
the Chief Justice under
and §
VI,
Const.,
5(3),
provisions of the
art.
Sec.
Colo.
damages only.
I
dissenting.
exemplary
believe
Justice HODGES
$125,000
not
here for
award is
sustainable
respectfully
I
dissent.
reasons.
two
part
judg-
I would
of the
reverse
First,
significant ques-
there
real and
is a
$48,000
jury
ment and
award of
for
concerning
law
whether this
tion of
outrageous
claim.
plaintiff on her
conduct
$48,000
damages
may be
tiff
awarded
perceive nothing
plaintiffs
I
from the
testi-
outrageous conduct and also be award-
approaches
mony and other evidence which
$125,000
exemplary
part
damages
on the
of defen-
for out-
ed
Buckley during
polygraph
negligence. Exempla-
test and rageous
dant
conduct and
subsequent
plaintiff.
with
interview
damages
damages
ry
*4
are
deter-
conduct
both
toward
Viewing
light
evidence in a
most
all the
punishment
or
and as
for intentional
rence
I
plaintiff,
favorable to the
cannot conclude
Therefore,
reckless misconduct.
it would
Buckley’s questions, com-
that defendant
part
exemplary
appear that
of the
ments,
during
and
the interview
conduct
damages
applicable
outrageous
award
plaintiff
egregious
so
as to be
with
were
of the
for
duplicative
award
is, my view, they
in
were
actionable. That
basis,
this
de-
outrageous conduct. On
the
in character and so ex-
outrageous
not so
doubly punished.
being
in
that a
member
fendant is
degree
treme
reasonable
them as
community
regard
the
would
of
specifically
This issue
not been
re
has
atrocious,
possible
going beyond all
bounds
in
In Vogel
Colorado.
solved
Carolina
utterly
decency,
of
and
intolerable
International,
Inc.,
(Colo.
jury. exemplary punitive damages
Since
must bear some relation to the actual dam- Abell,
ages, Frick v. 198 Colo. (1979), exemplary amount of
damages applicable negli- to defendant’s
gence be for this rea- should reconsidered agree I also the defendant’s
son also. with complete
contention that there lack
of sufficient evidence the economic sta- any support
tus of the defendants to sub- damages. exemplary award of
stantial
Court,
v. District
Higgs *5 INC.,
AMAX, Plaintiff-Appellant, QUALITY WATER
COLORADO CON- COMMISSION; City of West-
TROL
minster; Arvada; City of the Boulder Unlimited,
Flycasters Chapter of Trout
Defendants-Appellees. City
ADOLPH COORS COMPANY Golden, Plaintiffs-Appellants, QUALITY WATER CON-
COLORADO and Colorado
TROL COMMISSION Division; City Quality
Water Control Westminster; City Northglenn; Arvada; Thornton; City
City Flycasters Chapter of Trout
Boulder
Unlimited, Defendants-Appellees. 86CA1008,
Nos. 86CA1012. Appeals,
Colorado Court of
Div. II.
Dec. 1989. Rehearing
As Modified Denial of
March