concurring in part and dissenting in part.
I concur in that part of the majority's decision reversing the trial court's summary judgment on Lee's defamation claim.
I dissent, however, from that part of the majority's decision holding that the trial court also erred in dismissing Lee's outrageous conduct claim. As more fully explained below, unlike the majority, I would (1) consider the timing and content of defendants' retraction in determining whether their conduct was outrageous, and (2) under the totality of the cireumstances, conclude that defendants' conduct was not sufficiently outrageous to support a claim for outrageous conduct.
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; (8) causing the plaintiff to suffer *967severe emotional distress. Pearson v. Kancilia, 70 P.3d 594, 597 (Colo.App.2003).
The only element at issue here is the first. More specifically, the issues in this case concern which cireumstances may be considered in analyzing that element and whether the proffered evidence in this case is sufficient to support a finding of the existence of that element.
Turning to the first issue, our case law recognizes that, in determining whether a defendant's conduct qualifies as extreme and outrageous, the totality of the defendant's conduct must be evaluated. Green v. Qwest Services Corp., 155 P.3d 383, 385 (Colo.App.2006); see also Zalnis v. Thoroughbred Datsun Car Co., 645 P.2d 292, 294 (Colo.App.1982) ("it is the totality of conduct that must be evaluated to determine whether outrageous conduct has occurred"); Harrison v. Lause, 760 F.Supp. 1394, 1401 (D.Colo.) ("it is the totality of the cireumstances that must be evaluated to determine whether outrageous conduct has occurred"), aff'd, 951 F.2d 1259 (10th Cir.1991) (unpublished table decision).
If, in assessing this element, the totality of the defendants' conduct must be considered, I am at a loss to understand why a particular type of conduct-namely, a retraction or repudiation of earlier offensive conduct-would not be taken into consideration. Indeed, in one of our reported cases, a retraction of a sort was considered in assessing the outra-geousness of the defendant's actions.
In Bob Blake Builders, Inc. v. Gramling, 18 P.3d 859, 866-67 (Colo.App.2001), an officer of a construction company threatened to "rip the [homeowners'] house down" if they did not pay an outstanding bill. The division held:
[The] evidence, viewed in the light most favorable to [the homeowners], shows merely that the officer threatened them in contemplation of litigation. The threat was momentary in nature and was soon retracted. Hence, it cannot be considered as so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.
Id. at 867.
Consistent with the totality of cireum-stances test, and with the rationale of Bob Blake Builders, Inc., I would hold that defendants' retraction and apology, made two weeks after the incident of offensive conduct, should be taken into account in determining whether their overall conduct was sufficiently outrageous to meet the threshold requirement for a claim of outrageous conduct.
I would also hold that, under the totality of the circumstances, the proffered evidence of defendants' conduct was insufficient to support a claim for outrageous conduct.
"The tort of outrageous conduct was designed to create liability for a very narrow type of conduct." Green, 155 P.3d at 385. Consequently,
the level of outrageousness required to create liability is extremely high. Mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities are insufficient. Only conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community, will suffice.
Pearson, 70 P.3d at 597, see Churchey v. Adolph Coors Co., 59 P.2d 1336, 1350 (Colo.1988) (facts must so arouse resentment against the defendant in average members of the community as to lead them to exclaim, "Outrageous!"); Sawabini v. Desenberg, 143 Mich.App. 373, 383, 372 NW.2d 559, 565 (1985) (facts must so arouse resentment against the defendant in an average member of the community as to "lead him to seream, 'Outrageous" ") (emphasis added); Bennett v. Jones, Waldo, Holbrook & McDonough, 740 P.3d 17, 32 (Utah 2003) ("To be considered outrageous, 'the conduct must evoke outrage or revulsion; it must be more than unreasonable, unkind, or unfair? " (quoting Franco v. Church of Jesus Christ of Latter-day Saints, 21 P.3d 198, 207 (Utah 2001) (quoting 86 C.J.S8. Torts § 40, at 722))).
The rationale behind limiting the type of actionable conduct for this tort is that "[pler-sons must necessarily be hardened to a certain amount of rough language and to occasional acts that are definitely inconsiderate *968and unkind." Bob Blake Builders, Inc., 18 P.3d at 866.
An outrageous conduct claim may be submitted to the jury only if reasonable persons could differ on whether the defendant's conduct was sufficiently outrageous. Coors Brewing Co. v. Floyd, 978 P.2d 663, 665 (Colo.1999). Whether reasonable persons could differ on the outrageousness issue is a question of law subject to de novo review by this court. Pearson, 70 P.3d at 597.
Courts are generally unlikely to find that a single instance of offensive behavior constitutes outrageous conduct. "A single act may be regarded as outrageous if it is so extreme in degree that it would be considered intolerable by an average member of the community," but "courts are more likely to find outrageous conduct in a series of incidents or a course of conduct than in a single incident." John W. Grund, K. Kent Miller & Graden P. Jackson, 7 Colo. Prac., Personal Injury Torts and Insurance § 28.8 (2d ed.2009) (noting, also, a case in which "a supervisor's response to a customers' question, although highly inappropriate, was the type of single insult or unkind act that is normally not considered sufficient to constitute outrageous conduct").
In the present case, we have but one offensive act, that is, defendants' publication of an article in a newspaper. In that article, defendants criticized Lee (without specifically naming her) for not testifying at the trial of the accomplice of her husband's murderer. The article purported to be based on facts previously reported by another newspaper. However, the article's basic premises-that another newspaper had published these facts, and that Lee had not testified and was responsible for the acquittal of the accomplice in her husband's murder-were demonstrably false.
Two weeks later, defendants published a second article in which they admitted that the contents of the earlier article were not true. In that article, they recounted how, upon Lee's complaint, they went back and checked their story and determined that, as Lee insisted, it was not true. They admitted that, although their earlier article appeared to quote another newspaper, it was in reality based solely "on a rumor [they] heard from one local Korean saying that he saw the [other paper's] article," and that they had failed to check the validity of the rumor. Defendants publicly apologized in the article for the emotional pain they had inflicted on Lee.1
Although defendants' first article was defamatory, defamation does not, in and of itself, constitute extreme and outrageous conduct. See Gordon v. Boyles, 99 P.3d 75, 82 (Colo.App.2004); see also Holtzscheiter v. Thomson Newspapers, Inc., 306 S.C. 297, 411 S.E.2d 664 (1991) (libel fell short of the standard required for extreme and outrageous conduct), overruled on other grounds in later appeal, Holtzscheiter v. Thomson Newspapers, Inc., 332 S.C. 502, 506 S.E.2d 497 (1998); Zoumadakis v. Uintah Basin Med. Ctr., Inc., 122 P.3d 891, 894 (Utah Ct.App. 2005) ("Even if the statements made about her were false, derogatory statements alone do not give rise to a claim of intentional infliction of emotional distress.").
Nor does the spreading of rumors or the making of false accusations qualify, without more, as extreme and outrageous conduct. See, e.g., Bodett v. CoxCom, Inc., 366 F.3d 736, 747-48 (9th Cir.2004) ("Arizona courts have typically found false accusations alone not enough to constitute an intentional infliction of emotional distress."); Peterson v. Eder, 2001 WL 1868822, *2-3 (Mass.Super.Ct. No. BACV20000759, Dec. 27, 2001) ("Gossiping and spreading stories are petty human commonplaces neither so outrageous in character nor so extreme in degree 'as to go beyond all possible bounds of decency, to be regarded as atrocious and utterly intoler*969able in a civilized community.'") (quoting Foley v. Polaroid Corp., 400 Mass. 82, 508 N.E.2d 72, 82 (1987)), aff'd on other grounds, 860 N.E.2d 49 (Mass.App.Ct.2006).
Instead, it is the nature of the defamation, the rumor, or the false accusation, that could make the conduct actionable as outrageous conduct. Compare Carraway v. Cracker Barrel Old Country Store, Inc., No. 02-2237, 2003 WL 21685909, at *14 (D.Kan. July 16, 2003) (deciding that spreading of false rumors to former coworkers and customers that "plaintiff stole money, used drugs, had a drinking and/or gambling problem and was [a] lesbian" was not "extreme and outrageous" conduct establishing intentional infliction of emotional distress); Batson v. Shiflett, 325 Md. 684, 602 A.2d 1191 (1992) (even though accusations of conspiracy, perjury, and falsification of records in labor dispute were defamatory, they did not satisfy exacting standard for extreme and outrageous conduct); and Hanssen v. Our Redeemer Lutheran Church, 938 S.W.2d 85 (Tex.App.1996) (accusing employee of misappropriating church funds was not deemed extreme and outrageous conduct), with Ogle v. Hocker, 279 Fed.Appx. 391, 400 (6th Cir.2008) (bishop's alleged conduct of deliberately spreading false rumors of another bishop's homosexual inclinations on multiple occasions to large audiences may amount to "extreme and outrageous conduct" under Michigan law); McConnell v. State Form Mut. Ins. Co., 61 F.Supp.2d 356, 363 (D.N.J.1999) (listing, as an example of actionable outrageous conduct, "spreading a false rumor that plaintiff's son had hung himself").
In Gordon v. Boyles, 99 P.3d at 79, 82, a division of this court held that a radio talk show host's defamatory statements, made in several separate broadcasts, accusing a police officer of a criminal offense (stabbing another police officer) and of serious sexual misconduct (engaging in an extramarital affair) were not actionable as outrageous conduct.
In my view, defendants' actions in this case are less egregious than those in Gordon. Inasmuch as they accused Lee of dishonoring her husband by being unconcerned with or indifferent to the fate of a person involved in his murder, defendants' actions were definitely insensitive, inconsiderate, unkind, and irresponsible. But, particularly when viewed in light of defendants' subsequent retraction of, and apology for, the story, I eannot think that a reasonable person could find that the totality of defendants' conduct was so outrageous, so vile, so reprehensible, as to go beyond all possible bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community. See, e.g., White v. Manchester Enter., Inc., 871 F.Supp. 934, 939-40 (E.D.Ky.1994) ("[Vliewing the evidence in the light most favorable to Ms. White, defendants, at most, acted recklessly in publishing false statements that were embarrassing to Ms. White and damaging to her reputation with minimal effort to substantiate their statements. While defendants' alleged actions are not something to be encouraged, their actions do not constitute extreme and outrageous behavior that must be regarded as atrocious and utterly intolerable in the community."); Holtzscheiter, 411 S.E.2d at 665, 667 (although by reporting that "there simply [had been] no family support to encourage [the 17-year-old murder victim] to continue her education," newspaper may have implied that victim had an unfit mother who contributed to her death, "the language of the article here was not so extreme and outrageous as to exceed all possible bounds of decency"). -
In reaching my conclusion, I have considered the cases cited by the majority in support of their decision. I find those cases distinguishable on two grounds, namely, the nature and repetitiveness of the conduct involved.
The authorities have identified some categories of conduct that typically qualify as extreme and outrageous conduct.
For instance, extreme and outrageous conduct "may arise from an abuse by the actor of a position, or a relation with the other, which gives him actual or apparent authority over the other, or power to affect his interests.... In particular police officers, school authorities, landlords, and collecting eredi-tors have been held liable for extreme abuse of their position." Restatement (Second) of Torts § 46 emt. e. (1965); see also, e.g., Todd v. South Carolina Farm Bureau Mut. Ins. *970Co., 283 S.C. 155, 321 S.E.2d 602, 610-11 (Ct.App.1984) (extreme and outrageous conduct has often been found in cases where "a pre-existing legal relationship between the parties has existed, typically a debtor-creditor, insured-insurer, landlord-tenant, physi-clan-patient or employer-employee relationship"), quashed in part on other grounds, 287 8.C. 190, 336 S.€.2d 472 (1985).
Extreme and outrageous conduct may also "arise from the actor's knowledge that the other is peculiarly susceptible to emotional stress, by reason of some physical or mental condition or peculiarity. The conduct may become heartless, flagrant, and outrageous when the actor proceeds in the face of such knowledge, where it would not be so if he did not know." Restatement (Second) of Torts § 46 emt. f; see also, e.g., Todd, 321 S.E.2d at 611 (extreme and outrageous conduct occurs where "the defendant calculatedly inflicted suffering or heedlessly and contemptuously disregarded the plaintiff's present emotional suffering").
The cases cited by the majority fit into these categories; each involved an abuse of a pre-existing legal relationship between the parties. Pearson, Meiter, and Mass each involved an employer-employee relationship; Rugg involved a debtor-creditor relationship; Danyew involved a landlord-tenant relationship; Montgomery Ward & Co. involved a principal-agent relationship; and Roget involved a lessor-lessee relationship.
Moreover, all but two of the cases relied upon by the majority involved conduct of an ongoing nature, including actions taken on multiple occasions. Only two of those cases, Montgomery Ward & Co. and Danyew, involved a single incident, and, as mentioned above, those two cases involved an abuse of a pre-existing legal relationship.
Here, defendants' actions did not fall within typical categories of extreme and outrageous conduct. There was no pre-existing legal relationship between defendants and Lee; nor was there any evidence that defendants knew that Lee was peculiarly susceptible to emotional stress, by reason of some physical or mental condition or peculiarity.
Moreover, defendants acted in an offensive manner on but one occasion. Two weeks later, they apologized for their earlier act. In my view, the facts of this case are readily distinguishable from those in the cases upon which the majority relies.
For these reasons, I would hold that the trial court properly granted summary judgment dismissing Lee's outrageous conduct claim against defendants.
. In this regard, defendants wrote:
We apologize to [Lee] ... and we would like to correct the wrong information....
[Alll of us at our newspaper apologize to [Lee] and the family for using wrong quotes to inflict their emotional pain.
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[We made another mistake in comparing [another woman's] fidelity to [Lee's] unconcern based on [her] improper conduct. Again, we apologize to [Lee] and the family for causing emotional pain by writing the bogus information.