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Special relationship:

Plaintiff asserts her circumstances with the Defendant were consistent with these examples, case law
references, and precedent citations; and validate and qualify her relationship with the Defendant as a
special relationship as a determining element for the basis of the Civil suit. (bolding by Plaintiff for
emphasis of relevance)

10
th
Circuit Court of Appeals: Derkevorkian, v Lionbridge- Colorado law recognizes that some
special relationships by their nature automatically trigger an independent duty of care that
supports a tort action even when the parties have entered into a contractual relationship. Id. at
1263.

In denying Lionbridges request for a new trial, the district court found that there was sufficient
evidence presented to establish a special relationship that would give rise to a fiduciary duty not
recognized in the usual employment relationship, as well as a breach of that duty. Order at 10,
Appellants App. at 453.

The district court characterized that special relationship as a confidential fiduciary relationship
which Lionbridge had with DerKevorkian.

A confidential relationship exists when one party justifiably reposes confidence in another such
that the parties drop their guard and assume that each side is acting fairly. Lewis v. Lewis, 189 P.3d
1134, 1143 (Colo. 2008).

However, a confidential relationship may serve as an indication of fiduciary status. Lewis, 189 P.3d
at 1143. Furthermore, [t]he confidential relationship . . . must be established prior to the date of the
transaction that gives rise to the claim. Vikell Investors Pac., Inc. v. Kip Hamden, Ltd., 946 P.2d 589,
597 (Colo. Ct. App. 1997). In order to establish, under Colorado law, a breach of a fiduciary duty
arising from a confidential relationship between two parties: there must be proof, among other
things, that (1) either the reposing of trust and confidence in the other party was justified, or the
party in whom such confidence was reposed either invited, ostensibly accepted, or acquiesced in
such trust; (2) the alleged trustee assumed a primary duty to represent the other partys interest in
the subject of the transaction; (3) the nature and scope of the duty that arose by reason of the
confidential relationship extended to the subject mater of the suit; and (4) that duty was violated,
resulting in damage to the party reposing such confidence.

In re Estate of Blacher, 857 P.2d 566, 568 Colo. App. 1993 A duty of reasonable care may arise when
there is a foreseeable risk of injury to others from a defendants failure to take protective action to
prevent the injury.

Detrimental reliance upon oral promises. The principle embodied in section 139 of the restatement
(second) of contracts that detrimental action performed in justifiable reliance upon oral promises
may be sufficient to compel full or partial performance of the promise in spite of the applicability of a
statute of frauds defense was applicable in a case involving an oral agreement to sell securities. Kiely
v. St. Germain, 670 P.2d 764 (Colo. 1983).


ETHICAL ISSUES REALTED TO COLORADO RULE OF CIVIL PROCEDURE 16.2

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Judge Edward C. Moss - District Court, 17
th
Judicial District

1. Some special relationships are fiduciary. Logixx Automation, Inc. v. Lawrence Michels Family
Trust, 56 P3d 1224 (Colo. App. 2002)
2. Some special relationships are quasi-fiduciary. American Family Mut. Ins. Co. v. Allen, 102 P3d
333, 342 (Colo.2004); Farmers Group, Inc. v. Trimble, 691 P2d 1138 (Colo. 1984)
3. Special relationships typically give rise to tort liability. Grynberg v. AgriTech, Inc., 10 P3d 1267,
1271 (Colo. 2000).

In the context of tort law generally, and the law of negligence specifically, Justice Ratliff of the Court of
Appeals of Indiana opined, in Lucas v Dorsay: "A duty of care exists when one party assumes such a
duty, either gratuitously or voluntarily. The assumption of a duty creates a special relationship
between the parties and a corresponding duty to act as a reasonably prudent person."
The special relationship is construed, as a matter of law, to impose on the breaching party obligations of
good faith and fair dealing in the performance of its commitments arising out of the relationship. The
closest analogy is that of the quasi-contract, in which a contractual relationship is presumed in order to
achieve and just relationship between the parties. Committee on Childrens T.V. v. General Foods Corp.
(Cal 1983)

Revered former U.S. Supreme Court Justice Benjamin Cardozo, while he was a Justice on New Yorks
highest court, once wrote: "Many forms of conduct permissible in a workaday world for those acting at
arms length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter
than the morals of the marketplace. Not honesty alone, but the punctilio of an honor the most
sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending
and inveterate. Uncompromising rigidity has been the attitude of the courts of equity when petitioned
to undermine the rule of undivided loyalty by the disintegrating erosion of particular exceptions. Only
thus has the level of conduct for fiduciaries been kept at a higher level than that trodden by the
crowd."
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Meinhard v. Salmon


A fiduciary, by definition, is a person or group who holds assets for another party, often with the legal
authority and duty to make decisions for the other party. Given this important accountability, a
fiduciary is a person in whom someone has placed the utmost trust and confidence. (Plaintiff attests
these were the precise factors involved in the alleged facts.)

The special relationship usually arises when the person in whom confidence is reposed (defendant)
acquires control over the affairs of the plaintiff; and the plaintiff now finds herself vulnerable to the
actions of the person in whom confidence is reposed. Coca-Cola Bottling Co. of Elizabethtown Inc. v.
Coca-Cola (D. Dela 1988)

The general hallmark of a fiduciary-like relationship is the presence of a relationship of trust and
confidence, in which one party exercises influence over the other party and thus renders the latter
vulnerable to exploitation by the former. Richelle L., v. Roman Catholic Archbishop of San Francisco
(Cal. App. 2003); Shervin v. Huntleigh Securities Corp., (Mo. App. 2002)

There was a valid relationship between Plaintiff and Defendant for Emotional Distress:

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The relationship between plaintiff and defendant, including whether there was a relationship of trust
or friendship, is an important factor in determining whether a defendants conduct is so outrageous
that it is actionable. See, e.g. Delia S. v. Torres, 184 Cal. Rptr. 787, 794 (Cal. Ct. App. 1982).
In certain limited circumstances, however, the state has been found to have an affirmative duty to
protect citizens from constitutional injury inflicted by a private person. Those circumstances have been
framed as two exceptions to the general rule: (1) the special relationship exception; and (2) the danger
creation exception. Henderson v. Gunther, 931 P.2d 1150, 1154 (Colo. 1997). Colorado Court of Appeals
-- 2003 Peterson v. Arapahoe County Sheriff.
special relationship exists between the parties, a plaintiff may recover for loss of expected
economic advantage through the negligent performance of a contract although the parties were not in
contractual privity. (JAire Corp. v. Gregory (1979) 24 Cal.3d 799, 804 [157 Cal.Rptr. 407, 598 P.2d 60].)
~~~
Plaintiff can provide a large amount of documentation confirming the relationship between herself
and the Defendant was consistent with the intent of these citations, establishing validity of a special
relationship. A few brief examples of this:
There existed a general understanding and acceptance that Defendant had authorized Plaintiff would
have continued access to their (prior-to marriage and post divorce) joint checking account and access
to one of Defendants credit cards for various expenses that were sometimes used for Plaintiffs
individual needs; and for some purchases and expenses in which they both shared an ongoing
financial and personal interest. There are many purchase transactions documenting this.


Defendant continued to request Plaintiffs consulting, advice, counsel and assistance for his business,
post-divorce, because of a shared-interest in the successful outcome of that business, as it was legally
and financially tied (entangled) to both of their welfare, relative to Defendant purchasing Plaintiffs
home. In the spring of 2011, Plaintiff had several conversations with Defendant discussing specific
and detailed advertising strategies and expenses for his business. (Plaintiff only later discovered that
Defendant misled Plaintiff in those conversations, and spent approximately $7000.00 of the money he
was withholding from Plaintiff, to invest in his business. She was not informed of this at the time of
those discussions.)

Of significance, and as explained in the Complaint, Plaintiff had specifically discussed, agreed and
contracted with Defendant, that she would only risk leaving her affordable and financially sustainable
living situation if there were assurances in place that her health and medical needs would be
addressed; and that she would not be put at further risk for increased detrimental impacts to her
existing, or future development of subsequent health and medical conditions, and housing needs by
any reckless, negligent or intentional acts by Defendant. And that this understanding and agreements
were applicable whether or not the personal aspect of their relationship continued, or not. Plaintiff
believes and contends these agreements further exemplify further evidence of a special relationship.

Plaintiff has many emails between herself and Defendant, the content of which indicates and is
consistent with interpretation of a special relationship as stated in the case law and precedent above.

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Plaintiff also pleads that the totality of circumstances, including the unique facts, unusual and
extraordinary circumstances be given weight by the Court: A unique circumstances exception
Blahd v. Richard B. Smith, Inc., 108 P.3d 996, 1001-02 (Idaho 2005) (court recognized existence of a
special relationship exception and a unique circumstances exception)

Plaintiff submits that the challenges and hardships caused by the extraordinary circumstances of the
timing and combination of two very significant events warrant consideration of this exception: This
severe and once-in-a-lifetime economic crisis, which we now commonly call the Great Recession (and
that many in our country are still trying recover from) combined with the extreme damages Defendants
wrongful, injurious and damaging actions caused to Plaintiffs life and affairs, still continuing to impact
her to the present time, these qualify as extraordinary and unique circumstances and their effect was
inextricably related to the special relationship that existed between Plaintiff and Defendant, post
divorce.

Finally, because of the special relationship that existed between Plaintiff and Defendant regarding
Defendants business post divorce in which Plaintiff did act in roles as an associate, collaborator, and
consultant at times; (and the employment law findings below re: special relationship), Plaintiff submits
the following:

From: Hofstra Labor & Employment Law Journal [Vol. 21:1] pg 146

A causal connection is required between the defendants intentional actions and the plaintiffs subsequent
emotional reaction and distress.
276
Actual causation is required,
277
as is proximate causation, where the
typical proximate causation test is the venerable foreseeability doctrine.
278
According to one court,
[f]oreseeability is inherent in the finding that [defendant] intentionally inflicted the emotional distress.
279

Other courts have held that causation can be found where the emotional distress was either the intended or
the primary consequence of the defendants conduct,
280
or where there is a high probability that the
[defendants] conduct would inflict severe emotional distress.
281
Yet, if the plaintiffs emotional distress is the
primary consequence of circumstances or events other than the defendants behavior, regardless of how deliberate
or reprehensible, the defendant should not be liable for the tort of intentional infliction of emotional distress.
282


276. GTE Southwest Inc. v. Bruce, 956 S.W.2d 636, 64243 (Tex. App. 1997), affd, 998
S.W.2d 605 (Tex. 1999); Agarwal v. Johnson, 603 P.2d 58, 71 (Cal. 1979) (approving jury instruction which provides that
damages for the intentional infliction of emotional distress may include Reasonable compensation for any financial loss
suffered by the plaintiff which was proximately caused by [the] emotional distress).
277. Pavilon v. Kaferly, 561 N.E.2d 1245, 1252 (Ill. App. Ct. 1990).
278. Alcorn v. Anbro Engg, Inc., 468 P.2d 216, 218 (Cal. 1970).
279. GTE Southwest Inc., 956 S.W.2d at 64243.
280. GTE Southwest Inc. v. Bruce, 998 S.W.2d 605, 611 (Tex. 1999).
281. Pavilon, 561 N.E.2d at 1251.
282. GTE Southwest, Inc., 998 S.W.2d at 611 (finding no liability where the emotional distress is merely incidental to
the commission of some other tort and is not the intended or primary con- sequence of the defendants conduct).

One commentator has emphasized that in the context of the termination of an at will employee, this susceptibility
factor judicially should be given more emphasis in light of the employers knowledge that the employee
already has sustained the emotional trauma of a discharge.
236
It is important to note, however, that the
Restatement (Second) of Torts adds a knowledge requirement to this susceptibility rule; that is, the defendant
must have possessed knowledge that the plaintiff was peculiarly susceptible to the distress.
237
Yet, even in
those jurisdictions that do not require prior knowledge of susceptibility, if the defendant is aware of the plaintiffs
special vulnerability, then the susceptibility factor should loom even larger in the outrageousness and

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severity analysis.
238
As one court emphasized, [c]onduct which might not ordinarily be actionable may be
considered outrageous if the defendant knows that a plaintiff was particularly susceptible to emotional
distress.
239
However, the Restatement warns that major outrage is essential to the tort; and the mere fact that the
actor knows that the other will regard the conduct as insulting, or will have his feelings hurt, is not enough.
240


236. Bleeke, supra note 17, at 372. 237.RESTATEMENT (SECOND) OF TORTS 46 cmt. f, j (1965).
238. Pavilon v. Kaferly, 561 N.E.2d 1245, 1252 (Ill. App. Ct. 1990) (This [outrageous] characterization of [defendants
harassing] conduct throughout this time period is further supported by the fact that it was directed at a person whom he clearly
knew to be susceptible to emotional dis- tress.).
239. Id. (noting defendant knew that plaintiff was undergoing emotional distress treatment by a psychotherapist).
240. RESTATEMENT (SECOND) OF TORTS 46 cmt. f (1965).
The case law therefore shows that if the employee asserts a particular sensitivity or susceptibility, then the employee
will be required to demonstrate that the distress was reasonably based on that special vulnerability.