Colbert v. Moomba Sports, Inc.

• Decision Date: 14 February 2008
• Docket Number: No. 78833-2.,78833-2.
• Citation: 163 Wn.2d 43,176 P.3d 497
• Parties: Jay COLBERT, as personal representative of the estate of Denise Colbert; and for himself, Petitioner, v. MOOMBA SPORTS, INC., a Tennessee corporation; United Marine Corporation of Tennessee, a Tennessee corporation; American Marine Corporation, a Tennessee corporation; and Skier's Choice, Inc., an Oklahoma corporation, Respondents.
• Court: Washington Supreme Court

176 P.3d 497

163 Wn.2d 43

Jay COLBERT, as personal representative of the estate of Denise Colbert; and for himself, Petitioner, v. MOOMBA SPORTS, INC., a Tennessee corporation; United Marine Corporation of Tennessee, a Tennessee corporation; American Marine Corporation, a Tennessee corporation; and Skier's Choice, Inc., an Oklahoma corporation, Respondents.

No. 78833-2.

Supreme Court of Washington, En Banc.

Argued May 15, 2007.

Decided February 14, 2008.

C. Steven Fury, William Scherer Bailey, Seattle, Philip Albert Talmadge, Talmadge Law Group PLLC, Tukwila, for Petitioner.

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

Bryan Patrick Harnetiaux, Spokane, for Amicus Curiae on behalf of Washington State Trial Lawyers Association.

MADSEN, J.

¶ 1 Jay Colbert's daughter, Denise Colbert, drowned after inhaling carbon monoxide fumes while hanging onto a motorboat as it was moving. He sued the boat manufacturer and others on several theories, including failure to warn of the danger of carbon monoxide exposure and negligent infliction of emotional distress. The trial court granted summary judgment in favor of the defendants and the Court of Appeals affirmed. Mr. Colbert maintains that the Court of Appeals improperly imposed additional requirements for bringing a claim of negligent infliction of emotional distress beyond those established by this court and that the Court of Appeals erred in holding that he failed to present sufficient evidence of emotional distress. We agree that the Court of Appeals improperly adopted a requirement that would alter Washington law, but we nevertheless affirm because summary judgment was properly granted in favor of the defendants.

FACTS

¶ 2 According to Mr. Colbert, at about 3:00 a.m. on August 3, 2003, he and his wife Kelly were awakened by a telephone call from Kyle Swanson, the boyfriend of Mr. Colbert's daughter, Denise. Mr. Swanson was quite upset. He told them that Denise had disappeared from the back of a boat at Lake Tapps and a search was taking place for her. At about 1:30 a.m. Denise Colbert and others had gone for a boat ride aboard Marc Jacobi's boat. Ms. Colbert and a friend were in the water holding on to the swimmers platform at the rear of the boat as it headed toward shore.¹ After an hour and a half in the water, they decided to go swimming, and, as her friend stated, "[a]ll of a sudden she was gone. We were just swimming, and then she went under. There wasn't a struggle or anything." Clerk's Papers at 265 (Dep. of Lindsay Lynam at. 39). Mr. Swanson and others searched for Denise and Mr. Jacobi called 911; the call was received at 2:58 a.m ¶ 3 A short time later Kyle Swanson called Mr. Colbert who took his other children to a neighbor's house and then drove to the lake, about five minutes from their home. When he arrived, police cars, ambulances, and the fire department were at the scene. Mr. Colbert saw lights flashing from' a boat on the water and knew the search for his daughter was underway. He drove to a friend's house on the lake and watched the rescue operation from the friend's dock. He hoped Denise would be found alive because Denise was an outstanding athlete with stamina and endurance, and she was a strong swimmer. Police Chaplain Arthur Sphar traveled back and forth between the rescue site and the dock to update Mr. Colbert about the search.

¶ 4 At some point after 6:00 a.m. rescuers found Denise's body. Sphar relayed this to Mr. Colbert. About 10 minutes later Mr. Colbert saw a buoy pop to the lake's surface. Because he could hear the dialogue from rescue workers on the lake he knew what this meant—it was tied to Denise's body. Mr. Colbert watched rescue boats move alongside the buoy. He saw Denise's body pulled over the side of a boat by her arm. He averred that he could see rescue workers move Denise's body once it was on the boat from about 100 yards away on the dock from which he watched. Mr. Colbert explains it was light enough that he could see this activity. Mr. Colbert saw an ambulance by the water, watched the police bring a stretcher, put a sheet over Denise's body, and take her away. He testified at a deposition that he was able to recognize the body as Denise's. Chaplain Sphar said they could see a body being pulled from the lake, but added it was not possible to see identifying detail from the dock. Denise had died about three hours before her body was recovered from the water. The cause of Ms. Colbert's death was "drowning" with "ethanol toxicity" and "carbon monoxide" noted as significant. Her blood alcohol level was 0.12 g/100 ml.

¶ 5 On December 2, 2003, acting as the personal representative of Denise's estate, Mr. Colbert sued Moomba Sports, Inc., United Marine, American Marine, and Skier's Choice, Inc. (collectively Skier's Choice), alleging negligence in failing to warn about carbon monoxide exposure and in designing, manufacturing, developing, assembling, testing, inspecting, selling, supplying, marketing, and promoting the boat Denise had been hanging on to; strict product liability under Washington's product liability act, chapter 7.72 RCW; and breach of expressed and implied warranty.² On October 4, 2004, plaintiff filed a first amended complaint adding a claim on his own behalf of negligent infliction of emotional distress: In brief, Mr. Colbert contends that Skier's Choice is at fault in his daughter's death because of the design and manufacture of the boat and Skier's Choice's failure to warn boat owners and users of the risk of carbon monoxide. He argues that Denise received a lethal dose of carbon monoxide from the boat, causing her to drown.

¶ 6 On November 1, 2004, Mr. Colbert filed a motion for partial summary judgment, seeking a ruling that the boat was not reasonably safe due to lack of adequate warnings. The trial court denied the motion. Skier's Choice then moved for partial summary judgment, arguing, among other things, that as a matter of law Colbert failed to state an actionable claim for negligent infliction of emotional distress. The trial court granted Skier's Choice's motion.

¶ 7 The trial court reasoned:

[T]he crux of the emotional distress is that you have to be present within a short period of time to view the victim's suffering. That doesn't apply here. If I were to deny the motion I would be extending this out to any parent who is called and told their child has been in an automobile accident and has been taken to a hospital. The child might have been rescued from a drowning incident but still alive but in a coma, they go to the hospital and you could then say they're having emotional distress because they had to sit and watch their child die within three hours or five hours or what have you.... The way the law is worded right now Mr. Colbert is not covered for emotional distress. He was called, went there, already advised she'd gone off the boat into the water and must have known it was a high probability she would have drowned. Watched the recovery effort for three hours but did not witness any pain, suffering or the like. A parent is going to be devastated any time their child dies before they do ... But this case is outside the parameters of the law as it is now.

Verbatim Report of Proceedings (Apr. 22 and May 20, 2005) at 14-15.

¶ 8 Colbert moved for voluntary dismissal of the estate's claims against Skier's Choice without prejudice; the trial court granted the motion. Mr. Colbert then appealed dismissal of the claim of negligent infliction of emotional distress. The Court of Appeals affirmed.

ANALYSTS

Neither Mr. Colbert nor. Skier's Choice asks the court to change Washington law respecting the judicially created tort of negligent infliction of emotional distress. Each party reasons that current law favors his or her position as to whether summary judgment was proper. Mr. Colbert claims, however, that the Court of Appeals altered Washington standards for what is required and imposed new requirements in reliance on out-of-state authority that permits a claim only if the plaintiff actually witnesses the traumatic event, arrives at the scene before any emergency personnel arrive, and arrives at the scene "unwittingly."

¶ 9 The tort of negligent infliction of emotional distress is a limited, judicially created cause of action that allows a family member to a recovery 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). We have recognized that other courts have applied numerous, widely varying standards for determining whether and when a defendant will be liable for negligent infliction of emotional distress. E.g., Hegel, 136 Wash.2d at 131-32, 960 P.2d 424; Hunsley v. Giard, 87 Wash.2d 424, 434, 553 P.2d 1096 (1976); see generally Dale Joseph Gilsinger, Recovery under State Law for Negligent Infliction of Emotional Distress under Rule of Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968), or Refinements Thereof, 96 A.L.R.5th 107 (2002); Dale Joseph Gilsinger, Recovery under State Law for Negligent Infliction of Emotional Distress Due to Witnessing Injury to Another Where Bystander Plaintiff Must Suffer Physical Impact or Be in Zone of Danger, 89 A.L.R.5th 255 (2001); Michael Jay Gorback, Note, Negligent Infliction of Emotional Distress: Has the Response to Diane Whipple's Death Rendered the Hardline Stance of Elden and Thing Obsolete?, 54 HASTINGS L.J. 273 (2002) (chronicling changes in California law); Jeffrey Hoskins, Comment, Negligent Infliction of Emotional Distress: Recovery is Foreseeable, 39 J. MARSHALL L.REV. 1019 (2006); Paul V. Calandrella, Note, Safe Haven for a Troubled Tort: A Return to the Zone of Danger for the Negligent Infliction of Emotional Distress, 26 SUFFOLK U.L.REV. 79 (1992).

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