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Knoell v. Cerkvenik-Anderson Travel Inc.6/30/1994
5, 258, 619 P.2d 1032, 1035 (1980). It is the duty of the court to determine whether the acts complained of can be considered the type of extreme and outrageous conduct needed to state a claim for relief. Davis v. First National Bank of Arizona, 124 Ariz. 458, 462, 605 P.2d 37, 41 (App. 1979). The conduct must "go beyond all bounds of decency, and be regarded as atrocious and utterly intolerable in civilized community." Restatement (Second) of Torts ยง 46 cmt. d; Patton v. First Federal Sav. and Loan Ass'n of Phoenix, 118 Ariz. 473, 476, 578 P.2d 152, 155 (1978).
Here, the conduct at issue is Cerkvenik's alleged misrepresentations to Knoells about the amount of supervision on the trip, and its concealment of the alcohol abuse which tended to occur on the trips. Arizona case law makes clear that much more egregious conduct is needed to support such a claim. See, e.g., Patton, 118 Ariz. 473, 578 P.2d 152 (beneficiary's attempt to force trustor into default did not constitute intentional infliction of emotional distress); Midas Muffler Shop v. Ellison, 133 Ariz. 194, 650 P.2d 496 (App. 1982) (collection agency's phone calls to debtor and use of abusive language did not constitute outrageous conduct needed to establish such a claim); Cluff v. Farmers Insurance Exchange, 10 Ariz. App. 560, 460 P.2d 666 (App. 1969) (insurance adjustor's threatening phone calls cajoling plaintiff to settle did not constitute type of behavior needed to support emotional distress claim). Because the misrepresentations alleged do not constitute the type of outrageous conduct required for such a claim, Knoells have failed to state a claim for intentional infliction of emotional distress; therefore this count was properly dismissed by the trial court.
Conclusion
Counts II (dram shop), part of III (negligence regarding dram shop liability), and IV (outrage) were properly dismissed by the trial court. Counts I (misrepresentation) and part of III (negligence regarding unsafe facilities) are remanded for further proceedings consistent with this decision.
EDWARD C. VOSS, Judge
CONCURRING:
SARAH D. GRANT,
Presiding Judge, Department A
SUSAN A. EHRLICH, Judge
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