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Colbert v. Moomba Sports Inc., et al., Civ. No. 78833-2, in the Supreme Court of the State of Washington (February 14, 2008).

In the early morning of August 3, 2003, plaintiff Colbert’s daughter, Denise, drowned after she inhaled a lethal dose of carbon monoxide while hanging onto the rear platform of a boat at Lake Tapps in Pierce County. Denise and her friends had been in the water holding onto the platform when they decided to swim towards the shore. Almost as soon as she let go, Denise disappeared below the water. Colbert was not with his daughter but was notified shortly after her disappearance. He immediately went to the scene and observed approximately 3 hours of rescue efforts before Denise’s body was located in the lake. Colbert observed rescuers pull her body from the water onto a boat, and later onto a stretcher before being loaded into an ambulance.

Colbert sued the manufacturer of the boat under several causes of actions, including negligent infliction of emotional distress. On this claim, the trial court found Colbert had failed as a matter of law to state an actionable claim because he did not witness his daughter’s drowning nor the immediate aftermath of the drowning.

Negligent infliction of emotional distress is a limited tort theory of recovery that permits a family member to recover for emotional distress caused by witnessing a relative’s traumatic injuries during an accident or in the immediate aftermath. Recovery is limited to the “foreseeable intangible injuries” produced by viewing an injured family member during this short window of time. In the past the Washington courts have declined to state a “bright line” rule as to how soon after an accident a family member must witness the relative’s injuries, however, it must be immediate enough to observe the injured relative’s injuries such as “the crushed body, the bleeding, the cries of pain, and, in some cases, the dying words.” The observation must be at the scene of the accident before there is any material change to the relative’s location or condition. Furthermore, the family member claiming emotional distress must arrive on the scene “unwittingly”, that is, without prior knowledge of the family member’s traumatic injuries or condition.

The Court of Appeals affirmed the trial court’s decision based on Colbert arriving on the scene with the knowledge that his daughter had possibly drowned and that he did not observe her drowning or the immediate aftermath of her drowning. The appeals court further held that Colbert’s claim failed because he arrived on the scene after emergency personnel. On appeal, the Washington Supreme Court affirmed the lower courts, however, it disavowed the Court of Appeals requirement that a family member must arrive before emergency personnel.

The Washington Supreme Court held that Colbert observed the scene after conditions had significantly changed from those that existed at the time his daughter drowned. The Court held that Colbert’s emotional distress did not arise from observing his daughter’s “suffering” as the tort requires, but rather the emotional distress he experienced was related to the expected emotions related to the unanticipated death of a family member.

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Smith Freed & Eberhard, P.C.

Contact: Jeffrey Eberhard