California
A cause of action for intentional infliction of emotional distress exists when there is “`”`(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.'”‘” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001 [25 Cal.Rptr.2d 550, 863 P.2d 795]; see Christensen v. Superior Court (1991) 54 Cal.3d 868, 903 [2 Cal.Rptr.2d 79, 820 P.2d 181].) A defendant’s conduct is “outrageous” when 1051*1051 it is so “`”extreme as to exceed all bounds of that usually tolerated in a civilized community.”‘” (Potter, at p. 1001.) And the defendant’s conduct must be “`”intended to inflict injury or engaged in with the realization that injury will result.”‘” (Ibid.)
Liability for intentional infliction of emotional distress “`does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.’ (Rest.2d Torts, § 46, com. d.)” (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1122 [252 Cal.Rptr. 122, 762 P.2d 46], overruled on another ground in Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th 826, 853, fn. 19; see Intel. Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1347 [1 Cal.Rptr.3d 32, 71 P.3d 296] [harassing e-mails might constitute intentional infliction of emotional distress]; Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 809 [52 Cal.Rptr.3d 376] [anonymous e-mails graphically threatening physical harm insufficient]; see Kiseskey v. Carpenters’ Trust for So. California (1983) 144 Cal.App.3d 222, 229-230 [192 Cal.Rptr. 492] [threats of harm or death to plaintiff and his family for failure to sign new union agreement sufficiently “outrageous”].) If properly pled, a claim of sexual harassment can establish “the outrageous behavior element of a cause of action for intentional infliction of emotional distress.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 618 [262 Cal.Rptr. 842].)
With respect to the requirement that a plaintiff show severe emotional distress, this court has set a high bar. “Severe emotional distress means `”emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.”‘” (Potter v. Firestone Tire & Rubber Co., supra, 6 Cal.4th at p. 1004.)
Colorado
46 of the Restatement (Second) of Torts (1965):
§ 46. 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 elements of liability for the tort of extreme and outrageous conduct are that:
1. [t]he defendant engaged in extreme and outrageous conduct;
2. [t]he defendant engaged in the conduct recklessly or with the intent of causing the plaintiff severe emotional distress[;] and
3. [t]he plaintiff incurred severe emotional distress which was caused by the defendant’s conduct.
CJI-Civ.3d 23:1. Proof of accompanying physical injury is not required. Rugg v. McCarty, 173 Colo. 170, 476 P.2d 753.
“Outrageous conduct” is defined as conduct that is “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.” Destefano v. Grabrian, 763 P.2d 275, 286 (Colo.1988); see also Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo.1988).
A person acts with intent to cause severe emotional distress when he engages in conduct with the purpose of causing severe emotional distress to another person, or he knows that his conduct is certain or substantially certain to have that result. A person 883*883 acts recklessly in causing severe emotional distress in another if, at the time of the conduct, he knew or reasonably should have known that there was a substantial probability that his conduct would cause severe emotional distress to the other person. See CJI-Civ.3d 23:3.
To withstand the defendants’ motion for summary judgment, the Culpeppers had the burden to show that a triable issue of fact existed. Continental Air Lines, Inc. v. Keenan, 731 P.2d 708 (Colo.1987). A triable issue of fact would exist if there were evidence that the defendants engaged in outrageous conduct with the specific intent of causing severe emotional distress or that the defendants acted recklessly with the knowledge that there was a substantial probability that their conduct would cause severe emotional distress. Although the question of whether conduct is outrageous is generally one of fact to be determined by a jury, it is first the responsibility of a court to determine whether reasonable persons could differ on the question. Restatement (Second) of Torts § 46 cmt. h (1965); Price v. Federal Express Corp., 660 F.Supp. 1388 (D.Colo. 1987); Meiter v. Cavanaugh, 40 Colo.App. 454, 580 P.2d 399 (1978).