Court restricts emotional-distress claims by relatives of accident victims

By Mark A. Horey

A relative of an accident victim may recover for negligent infliction of emotional distress only if he observes the accident or arrives at the scene shortly thereafter, the Washington Supreme Court has held.

In Colbert v. Moomba Sports, Inc., no. 78833-2 (Feb. 14, 2008), Jay Colbert’s daughter, Denise Colbert, drowned after inhaling carbon-monoxide fumes while a motorboat was towing her. Denise and friends had gone on a boat ride after 1 a.m. After an hour and a half, the party decided to go swimming. As the boat then headed toward shore, Denise and others hung onto a swim platform at the stern of the boat. Denise was overcome by the boat’s exhaust, slipped under the water, and was not seen again.

Jay Colbert received a phone call at 3 a.m. from Denise’s boyfriend, who told him of the accident. Colbert immediately went to the lake, which was close to his home. Colbert saw ambulances and fire and police vehicles that were already at the scene. He went to a friend’s lakefront home and watched the rescue operation. A police chaplain traveled back and forth between the rescue site and Colbert to update him on the progress of the search.

After 6 a.m., the chaplain told Colbert that rescuers had found Denise’s body. Standing on a dock, Colbert watched from a distance of about 100 yards as a buoy attached to the body popped to the water’s surface, rescue boats moved alongside the buoy, and the body was pulled aboard. Denise had died about three hours before her body was recovered. An autopsy determined that cause of death was drowning, with carbon-monoxide poisoning a contributing factor.