concurring in part and dissenting in part.
I concur in that portion of the majority opinion that reverses the summary judgment granted by the trial court in favor of defendant Samaritan Health Service.
I dissent from that portion of the majority opinion that affirms the partial summary judgment granted in favor of Dr. Stimmell on the appellant’s claim for intentional or reckless infliction of emotional distress. I believe that reasonable persons could differ as to whether Dr. Stimmell’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.
Arizona accepted the tort of intentional or reckless infliction of emotional distress as part of its jurisprudence in the case of Savage v. Boies, 77 Ariz. 355, 272 P.2d 349 (1954). Subsequent decisions such as Cluff v. Farmers Insurance Exchange, 10 Ariz. App. 560, 460 P.2d 666 (1969), and Benda-lin v. Valley National Bank, 24 Ariz.App. 575, 540 P.2d 194 (1975) have acknowledged that this legal theory is of continuing validity and may arise out of varied circumstances. For example this tort has been found to exist within the insurance context, and in commercial transactions. It may also exist in the medical negligence framework. Grimsby v. Samson, 85 Wash.2d 52, 530 P.2d 291 (1975); Rockhill v. Pollard, 259 Or. 54, 485 P.2d 28 (1971).
The majority bases its affirmance on its statement that “The record is devoid of any evidence that Dr. Stimmell intended to inflict emotional distress on Mrs. Lucchesi.” Ante at 1027. However there can be no question that Dr. Stimmell intended his actions in not being present at the delivery. The majority goes on to say: “Nor was his failure to attend the delivery and failure to disclose information reckless.” Ante at 1027. The majority talks about Dr. Stim-mell’s unrebutted testimony that the normal practice of obstetricians is to await a report of the condition of the patient upon her admission to the hospital before leaving home for the delivery. The majority seems to hold that because, when Mrs. Lucchesi reached Good Samaritan Hospital, Dr. Stimmell did not have enough time to arrive from his home before the delivery, he is absolved. This ignores other unrefuted facts of the case which are that this was not a normal delivery and that Dr. Stimmell was aware of the unusual circumstances of this delivery. Dr. Stimmell was first called by Mrs. Lucchesi’s regular obstetrician, Dr. Wilson Shill, at approximately 5:36 a.m. on the morning of November 22, 1979, Thanksgiving Day. At the time that he was contacted by Dr. Shill, Dr. Stimmell was apprised that, in Dr. Shill’s opinion, the delivery was imminent. Both agreed that the minimal chance of' saving the baby would be maximized by transporting the mother by ambulance to the perinatal, high-risk program at Good Samaritan Hospital. Dr. Stimmell acknowledged responsibility for the Arizona Perinatal Project on that date. He told Dr. Shill he was in charge of the program and would assume responsibility for the care of Mrs. Lucchesi as he was the physician on call. Mrs. Luc-chesi testified that she was told by Dr. Shill that Dr. Stimmel would be waiting for her at Good Samaritan Hospital when she arrived. Mrs. Lucchesi was transported by ambulance to Good Samaritan Hospital where the baby was delivered at 6:30 a.m. on that date. Had Dr. Stimmell left for the hospital upon receiving Dr. Shill’s call he would have been present for the delivery, however, he was neither present at the hospital at the time of the delivery nor enroute to the hospital. Dr. Stimmell testified that it was his active and intentional decision not to be present at the hospital although nothing prevented him from being there. In my opinion this evidence was sufficient to establish a claim of intentional or reckless infliction of emotional distress and the case should have been submitted to the jury.
As the majority points out Arizona has followed the Restatement (Second) of Torts § 46 (1965) regarding the elements of this tort. Arizona cases have referred to Comment (d) of that section which states as follows:
*92The cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. 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!”
See Bendalin v. Valley National Bank, 24 Ariz.App. at 577, 540 P.2d at 196.
The majority claims a special standard of review for the tort of intentional or reckless infliction of emotional distress: “In Arizona, the court in the first instance has the duty to determine whether the acts complained of can be considered extreme and outrageous conduct so as to state a claim for relief.” Ante at 1027. That statement which has evolved into an erroneous standard of review first appears in Cluff v. Farmers Insurance Exchange, 10 Ariz.App. at 562, 460 P.2d at 668, which stated:
Even if the defendant’s acts are done “wilfully, intentionally and maliciously” with “intent to inflict mental suffering and emotional distress,” it becomes the duty of the court in the first instance, as society’s conscience, to determine whether the acts complained of can be considered as extreme and outrageous conduct in order to state a claim for relief. Restatement (Second) Torts Sec. 46, Comment (h) (1965).
This expression omits a critical portion of the comment. Comment (h) in the Restatement, actually reads:
h. Court and jury. It is for the court to determine, in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, or whether it is necessarily so. Where reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.
(emphasis added)
Thus Cluff fails to provide any authority for imposing a different standard of review on this tort than on any other tort. Rather, Comment (h) is merely a specific application to this tort of the general rule that matters of law are for the court whereas matters of fact are for the jury. The relevant standard of review in any tort action is as stated in the first section of the majority opinion, “we must weigh the evidence and consider all of the matters presented in the light most favorable to the party opposing the motion for summary judgment. Hall v. Motorist Insurance Corp., 109 Ariz. 334, 509 P.2d 604 (1973).”
With that standard of review in mind, I believe a jury could find the likelihood that the plaintiff would suffer emotional distress upon realizing Dr. Stimmell was not present at the delivery was substantially certain and therefore the defendant either intended this result or was reckless in his conduct knowing that this result was a strong possibility. A jury could find that Dr. StimmeH’s deliberate act of not attending the delivery of the plaintiff, who was being sent to him specifically for his needed expertise in view of her complications, was an act which was callous and “utterly intolerable in a civilized community.” Because of the unique physician-patient relationship the following statement by Professors Prosser and Keeton is particularly applicable:
The extreme and outrageous nature of the conduct may arise not so much from what is done as from abuse by the defendant of some relation or position *93which gives the defendant actual or apparent power to damage the plaintiffs interests.
Prosser & Keeton, Law of Torts § 12 at 61 (5th ed. 1984). The physician/patient relationship may cause actions to be found as outrageous conduct which would otherwise not be. In Humphers v. First Interstate Bank, 68 Or.App. 573, 576-77, 684 P.2d 581, 584 (Or.App.1984), rev’d on other grounds, 298 Or. 706, 696 P.2d 527 (1985), the court stated:
Plaintiff’s first claim is for outrageous conduct causing severe emotional distress. Outrageous conduct is an intentional tort which requires inflicting actual mental suffering on the plaintiff to be the deliberate purpose of the defendant’s conduct (citations omitted). However, the tortious purpose can be found in the breach of some obligation that attaches to a defendant’s responsibility toward the plaintiff ... The physician-patient relationship is sufficient to create the duty; and defendant may therefore be liable, even if [Dr.] Mackey did not have as his deliberate purpose inflicting actual mental suffering on plaintiff.
Another basis on which extreme outrage can be found is the defendant’s knowledge that the plaintiff is especially sensitive, susceptible and vulnerable to injury through mental distress due to the plaintiff’s condition such as pregnancy and impending premature delivery. Prosser & Keeton, Law of Torts § 12 at 62-63. In such special relationships and circumstances it should be sufficient for a case to reach the jury if the defendant knew that the mental distress was substantially certain to follow from his intentional conduct or when the mental distress was so highly probable that the defendant’s intentional actions in conscious disregard of this probability could be characterized as willful, wanton or reckless. This tort should encompass conduct not only directly intended to cause mental distress but conduct which is willful, wanton and reckless in its deliberate disregard of a known high degree of risk of such distress. See, e.g., Johnson v. Woman’s Hospital, 527 S.W.2d 133 (Tenn.App.1975); Price v. Yellow Pine Paper Mill Co., 240 S.W. 588 (Tex.Civ.App.1922); Boyle v. Chandler, 33 Del. 323, 3 W.W. Harr. 323, 138 A. 273 (1927). In this case reasonable persons could differ as to whether the defendant’s conduct should result in liability.
In a remarkably similar case the Alabama Supreme Court overturned a summary judgment against a plaintiff who claimed her physician’s negligence caused her mental anguish. Taylor v. Baptist Medical Center, Inc., 400 So.2d 369 (Ala.1981). Where there is sufficient evidence for the question to be submitted to the jury then this court must reverse the summary judgment. Linsenmeyer v. Hancock, 23 Ariz.App. 444, 533 P.2d 1181 (1975). As the author of the majority opinion has previously stated the terms “outrageous conduct” and “severe emotional distress” are not capable of precise legal definition, and therefore a case by case analysis is required. Midas Muffler Shop v. Ellison, 133 Ariz. 194, 650 P.2d 496 (App.1982).
I am further troubled by another significant point concerning this tort. A review of Arizona cases shows that Arizona courts surreptitiously have attempted to discourage the cause of action of the tort of intentional or reckless infliction of emotional distress. Very few claims for the intentional or reckless infliction of emotional distress reach Arizona juries. Most of these tort claims are disallowed as a matter of law by the Arizona courts.1 Even in the *94few Arizona cases where this tort is submitted to the jury and the plaintiff prevails, Arizona appellate courts often reverse the jury verdict.2
As previously noted, Arizona recognizes the tort of intentional or reckless infliction of emotional distress as a valid cause of action. Savage v. Boies. The trend of current Arizona case law, in part due to the erroneous standard of review utilized in Cluff, effectively abrogates this cause of action. In Kenyon v. Hammer, 142 Ariz. 69, 688 P.2d 961 (1984) the Arizona Supreme Court held that the right to bring a cause of action to recover damages for injury was a “fundamental right” guaranteed under article 18, § 6 of the Arizona Constitution. That constitutional provision states as follows:
The right of action to recover damages for injury shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation.
Article 18, § 6 prohibits “abrogation.” Barrio v. San Manuel Division Hospital, Magma Copper, 143 Ariz. 101, 692 P.2d 280 (1984). Although previous decisions holding provisions void under article 18, § 6 have involved statutory law rather than case law, literally and logically article 18, § 6 applies to both.
I would reverse the summary judgment granted in favor of Dr. Stimmell and remand for trial.
. Arizona decisions have disallowed jury consideration of this tort in the following ways: (1) dismissal for failure to state a claim; see Hixon v. State Compensation Fund, 115 Ariz. 392, 565 P.2d 898 (App.1977); Cluff v. Farmers Insurance Exchange; (2) summary judgment; see Patton v. First Federal Savings & Loan Association, 118 Ariz. 473, 578 P.2d 152 (1978); Midas Muffler Shop v. Ellison, 133 Ariz. 194, 650 P.2d 496 (App.1982); Davis v. First National Bank of Arizona, 124 Ariz. 458, 605 P.2d 37 (App.1979); Joseph, M.D. v. Markovitz, M.D., 27 Ariz.App. 122, 551 P.2d 571 (1976); Bendalin v. Valley National Bank; (3) directed verdict; see Thompson v. Sun City Community Hospital, Inc., 141 Ariz. 597, 688 P.2d 605 (1984); Watts v. Golden *94Age Nursing Home, 127 Ariz. 255, 619 P.2d 1032 (1980); Aspell v. American Contract Bridge League, Etc., 122 Ariz. 399, 595 P.2d 191 (App.1979).
. See Venerias v. Johnson, 127 Ariz. 496, 622 P.2d 55 (App.1980).