Colbert v. Moomba Sports, Inc.

• Decision Date: 16 May 2006
• Docket Number: No. 33283-3-II.,33283-3-II.
• Citation: 132 Wn. App. 916,135 P.3d 485
• Parties: Jay COLBERT, as Personal Representative of the Estate of Denise Colbert; and for himself, Appellant, v. MOOMBA SPORTS, INC., a Tennessee corporation, United Marine Corporation of Tennessee, a Tennessee corporation, American Marine Corporation, a Tennessee corporation, Skier's Choice, Inc., an Oklahoma corporation and Marc Jacobi, Respondents.
• Court: Washington Court of Appeals

135 P.3d 485

132 Wn. App. 916

Jay COLBERT, as Personal Representative of the Estate of Denise Colbert; and for himself, Appellant, v. MOOMBA SPORTS, INC., a Tennessee corporation, United Marine Corporation of Tennessee, a Tennessee corporation, American Marine Corporation, a Tennessee corporation, Skier's Choice, Inc., an Oklahoma corporation and Marc Jacobi, Respondents.

No. 33283-3-II.

Court of Appeals of Washington, Division 2.

May 16, 2006.

William Scherer Bailey, C. Steven Fury, Attorneys at Law, Seattle, WA, Philip Albert Talmadge, Talmadge Law Group PLLC, Tukwila, WA, for Appellants.

Raymond Stillman Weber, Mills Meyers Swartling, William Robert Hickman, Reed McClure, Seattle, WA, for Respondents.

HUNT, J.

¶ 1 Jay Colbert appeals summary judgment dismissal of his action for negligent infliction of emotional distress (NIED) against Skier's Choice Inc. (SC). Colbert's daughter drowned swimming in a lake after inhaling carbon monoxide while hanging onto the rear of a moving motor boat manufactured by SC. Colbert argues that he suffered emotional distress after seeing rescuers in the distance pull his daughter's body from a lake two to three hours after she drowned. Holding that Colbert has failed to state an actionable claim for NIED, we affirm.

FACTS

I. DROWNING

¶ 2 Shortly after 2 a.m. one summer night, 21-year-old Denise Colbert (Denise)¹ and several friends took a motor boat out on Lake Tapps. Denise had been drinking. SC had manufactured the boat.

¶ 3 Denise, Matt Holt, Lindsay Lynam, and Kyle Swanson jumped off the boat and started to swim to shore. When they realized the shore was farther away than they had estimated, Marc Jacobi, the boat's owner and driver, moved the boat along side them and drove slowly toward shore while the swimmers held onto the boat's rear platform.

¶ 4 When the boat neared 200 yards off shore, Denise and Lynam again began swimming to the shore. Sometime between 3:00 and 3:30 a.m., Lynam noticed that Denise had disappeared beneath the water's surface. Lynam, Holt, and Swanson began searching for Denise, and Jacobi called 911. Swanson called Denise's father, Jay Colbert (Colbert), who was in bed at the time; he told him that Denise had fallen off the boat and they could not find her in the lake. Colbert stated that he took his other children to a neighbor's house and then drove to the lake, which was about a five-minute drive from his neighbor's house.

¶ 5 Police and other rescuers began arriving around 3:45 a.m. Colbert and his wife, Kelly Colbert (Denise's stepmother), arrived sometime thereafter. The scene was hectic with ambulances, police officers, and the fire department. Colbert told the rescuers he understood the seriousness of the situation but stated that he had faith in Denise's athletic ability. Colbert and his wife drove to where rescuers were searching with boats, spotlights, and divers. They then left to go to a friend's nearby dock, from where they watched the rescuers search the lake.

¶ 6 Police Chaplain Arthur Sphar traveled back and forth between the rescue site and Colbert's dock vantage point to update him about the search. Later, when Colbert saw the rescue boat begin a search pattern out on the lake, he concluded that the rescuers were looking for Denise in a specific area. Colbert then saw a larger boat and more divers arrive at the scene.

¶ 7 Some time after 6:00 A.M., rescuers found Denise's body, and Sphar relayed this information to Colbert. About 10 minutes later, Colbert saw a buoy emerge from the water 100 yards (a football field) away, saw rescuers pull a body out of the water onto a boat,² and realized that Denise had drowned.

¶ 8 The rescuers quickly wrapped the body with a blanket, took the wrapped body to the property next to where Colbert stood watching, and placed the body in an ambulance. Colbert returned home.

¶ 9 The medical examiner reported the cause of Denise's death as drowning. The examiner also noted two other significant conditions, carbon monoxide and ethanol toxicity, which measured at 52 percent saturation and 0.12g/100 ml, respectively.

II. FATHER'S RESPONSE

¶ 10 Upon learning of Denise's death and seeing her body pulled from the lake Colbert was, of course, emotionally distressed. He later spoke with Dr. Alligra, some pastors, and friends about his daughter's death. He did not see a psychologist or therapist, except once at his attorney's recommendation on October 22, 2004, when he saw psychologist Dr. Erving Severtson.

¶ 11 Over the course of four hours, Dr. Severtson interviewed Colbert, gathered information about Colbert's family and history, and administered the Minnesota Multiphasic Personality Inventory 2, a psychological assessment instrument. Dr. Severtson opined that Denise's death caused Colbert's anxiety and depression, which he classified as "reactive." Dr. Severtson believed that (1) Colbert's anxiety was significantly "more marked because he was" at the scene of Denise's drowning; but (2) Colbert's emotional distress would have been the same, regardless of whether Colbert had actually seen Denise's body being pulled onto the rescue boat.³

III. PROCEDURE

¶ 12 Representing his daughter's estate, Colbert filed an action against Moomba Sports Inc., United Marine Corp. of Tennessee, and American Marine Skier's Choice Corp. (collectively, "SC" for "Skier's Choice") for negligently failing to warn about carbon monoxide exposure and for negligently designing, manufacturing, developing, assembling, testing, inspecting, selling, supplying, marketing, and promoting the boat on which Denise had been riding on the lake. Colbert claimed the defendants were strictly liable under RCW 7.72.030(2) and for breach of expressed and implied warranty. On October 4, 2004, he amended the complaint, adding his personal claim of negligent infliction of emotional distress (NIED) against SC.⁴

¶ 13 The trial court (1) denied Colbert's motion for summary judgment on behalf of Denise's estate; (2) granted SC's motion for partial summary judgment; and (3) dismissed Colbert's claims for breach of warranty, damages for Denise's pre-death suffering, and negligent infliction of emotional distress (NIED). The estate's product liability claim against SC remained.

¶ 14 The trial court then (1) denied Colbert's request to certify SC's partial summary judgment for appeal, and (2) granted Colbert's motion to dismiss the estate's claims without prejudice. Following voluntary dismissal of the other claims, the only claim remaining in Colbert's lawsuit was his personal NIED claim against SC, which the trial court had previously dismissed on summary judgment.

¶ 15 Colbert now appeals only the trial court's dismissal his NIED claim.

ANALYSIS

I. STANDARD OF REVIEW

¶ 16 Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact and if the moving party is entitled to judgment as a matter of law. Sheehan v. Cent. Puget Sound Transit Auth., 155 Wash.2d 790, 797-98, 123 P.3d 88 (2005). The court must consider all facts submitted and all reasonable inferences from them in the light most favorable to the nonmoving party. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982).

¶ 17 We perform the same inquiry as the trial court. The standard of review is de novo. Berrocal v. Fernandez, 155 Wash.2d 585, 590, 121 P.3d 82 (2005).

II. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

¶ 18 Colbert argues that is he is a "foreseeable" plaintiff, entitled to bring a claim for NIED against the boat manufacturer and distributors, SC, because he arrived shortly after the drowning accident, observed rescuers searching for his daughter, and saw her body being pulled from the lake two to three hours after she drowned. SC counters that Colbert does not qualify as a "foreseeable" NIED plaintiff because (1) he did not witness his daughter suffer or drown; (2) he had been watching fruitless search efforts for two to three hours before he learned that his daughter had drowned and then, ten minutes later, saw rescuers pull a body from the lake; and (3) his daughter had been dead for some time when he saw finally saw her body, from a distance, only momentarily.

¶ 19 The tort of NIED is a limited, judicially-created cause of action that allows bystander family members to obtain damages for "foreseeable" intangible injuries caused by viewing a physically-injured loved one shortly after a traumatic accident. Hegel v. McMahon, 136 Wash.2d 122, 125-26, 960 P.2d 424 (1998); Gain v. Carroll Mill Co., 114 Wash.2d 254, 261, 787 P.2d 553 (1990).

¶ 20 The parties have raised issues that Washington courts have not yet addressed: (1) whether seeing an injured relative three hours after an accident constitutes "shortly thereafter" under Gain and Hegel; and (2) whether there can be a claim for NIED where the victim dies before the family member arrives at the scene. The critical facts are not in dispute. Rather, the parties dispute (1) whether these undisputed facts are sufficient, as a matter of law, to establish a necessary legal element of a NIED cause of action, namely whether Colbert arrived at the accident scene "shortly after" his daughter's drowning; and (2) whether the trial court correctly answered that question "no" as a matter of law.

¶ 21 We agree with the trial court and hold that the following undisputed facts here do not, as a matter of law, meet the "shortly thereafter" requirement for establishing a bystander relative's cause of action for NIED: First, unlike the usual NIED case, where a family member either witnesses a loved one in an accident or comes upon the scene minutes later and observes the loved one's agonized state, Colbert was not at the scene either to witness Denise's drowning or soon enough thereafter to witness the final seconds of her disappearance under the lake's surface. Instead, he arrived at the accident scene at least 10 to...