IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Philip A. Brimmer

Civil Action No. 11-cv-01734-PAB-BNB

DANIEL LEROY RHODEN,

Plaintiff,

v.

RYAN O’HAYRE, in his individual capacity, and

STUART RUYBAL, in his individual capacity,

Defendants.

ORDER

This matter is before the Court on Defendants [sic] Motion for Clarification of the

Courts [sic] March 8, 2013 Order (ECF No.51) [Docket No. 53] filed by defendants Ryan

O’Hayre and Stuart Ruybal. In its March 8, 2013, Order [Docket No. 51], the Court

denied defendants’ motion to dismiss plaintiff’s constitutional claims and his tort claims

for false imprisonment, assault and battery, and intentional infliction of emotional

distress against Officers O’Hayre and Ruybal. Docket No. 151 at 16. Defendants filed

the instant motion to clarify the Court’s disposition of plaintiff’s claim that Officers

O’Hayre and Ruybal are liable for the tort of extreme and outrageous conduct. Docket

No. 30 at 10, ¶¶ 51-54. 

In Colorado, the tort of extreme and outrageous conduct has three elements: (1)

the defendant engaged in extreme and outrageous conduct; (2) the defendant engaged

in such conduct recklessly or with the intent of causing plaintiff severe emotional

distress; and (3) the defendant’s conduct caused plaintiff to suffer severe emotional

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distress. Culpepper v. Pearl St. Bldg., Inc., 877 P.2d 877, 882 (Colo. 1994) (citing the

Restatement (Second) of Torts § 46 (1965)). The tort of intentional infliction of

emotional distress is defined by the same three elements. Coors Brewing Co. v. Floyd,

978 P.2d 663, 666 (Colo. 1999) (“In Rugg v. McCarty, 476 P.2d 753, 756 (1970), we

approved the definition of this tort as set out in the Restatement (Second) of Torts § 46

(1965): ‘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.’”). 

Thus, Colorado courts treat these torts as a single cause of action. See, e.g.,

Han Ye Lee v. Colo. Times, Inc., 222 P.3d 957, 966-67 (Colo. App. 2009) (“The

elements of the tort of intentional infliction of emotional distress, otherwise known as

‘outrageous conduct,’ are (1) the defendant engaged in extreme and outrageous

conduct; (2) recklessly or with the intent of causing the plaintiff severe emotional

distress; (3) causing the plaintiff to suffer severe emotional distress.”); McKelvy v.

Liberty Mut. Ins. Co., 983 P.2d 42, 44 (Colo. App. 1998) (“Intentional infliction of

emotional distress/outrageous conduct requires proof that the defendant engaged in

extreme and outrageous conduct, recklessly or with the intent of causing the plaintiff

severe emotional distress, and that the plaintiff incurred severe emotional distress as a

result of defendant's conduct.”). Given the substantive identity of the two claims,

plaintiff’s claim for extreme and outrageous conduct necessarily survives against

officers Ruybal and O’Hayre for the same reasons that plaintiff’s claim for intentional

infliction of emotional distress survives. See Docket No. 51 at 12-15. Accordingly, it is

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ORDERED that Defendants Motion for Clarification of the Courts March 8, 2013

Order (ECF No.51) [Docket No. 53] is GRANTED. It is further 

ORDERED that Defendants the City of Lakewood, Colorado, Kevin Paletta,

Ryan O’Hayre and Stuart Ruybal’s Motion to Dismiss Plaintiff’s First Amended

Complaint (ECF No.30) [Docket No. 36] is DENIED with respect to plaintiff’s claim

against Officers O’Hayre and Ruybal for extreme and outrageous conduct.

DATED April 9, 2013.

BY THE COURT:

 s/Philip A. Brimmer 

PHILIP A. BRIMMER

United States District Judge

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