Court restricts emotional-distress claims by relatives of accident victims

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Colbert later sued Skier’s Choice and other sellers of the boat, alleging product liability and other legal theories, including negligence in failing to warn about exposure to carbon monoxide. One of Colbert’s claims was for negligent infliction of emotional distress. After Colbert unsuccessfully moved for summary judgment on the sellers’ failure to warn, Skier’s Choice brought its own motion for partial summary judgment, arguing that Colbert had no legal basis for his emotional-distress claim.

The trial court granted Skier’s Choice’s motion. The trial court based its ruling on Washington case law that for a surviving family member to make such a claim, he must have been present within a short period of time after the accident to view the victim’s suffering. Colbert appealed. The Court of Appeals affirmed the dismissal of the emotional-distress claim.

The Supreme Court accepted Colbert's petition for review. The Court considered the history of Washington’s law of negligent infliction of emotional distress. That tort is a limited, judicially created cause of action that allows a family member to recover for foreseeable intangible injuries that result from viewing a physically injured loved one shortly after a traumatic accident. As the Court had noted in Hegel v. McMahon, 136 Wn.2d 122 (1998), the class of such “bystander plaintiffs” is restricted to those who were present at the scene of the accident, and the plaintiff must show objective symptoms of emotional injury.

But what constitutes “presence at the scene of the accident” has evolved under Washington law. Washington appellate courts have tried to avoid creating potentially unlimited liability to anyone who suffered emotional distress caused either by personal peril or by concern for the peril of another. So the courts have restricted the latter class of emotional-distress plaintiffs to those who were present when the victim was imperiled or was suffering.

The Supreme Court therefore held that an emotional-distress claim of a relative who was “not present at the scene of the injury-causing event is unforeseeable as a matter of law. We reach this conclusion after balancing the interest of the injured party to compensation against the view that a negligent act should have some end to its legal consequences.” The Court’s decisions included in that class of plaintiffs those family members who either witnessed the accident or arrive at the scene “shortly thereafter.” The distress from witnessing the victim’s suffering can be as severe, and as foreseeable, as that resulting from witnessing the accident itself. But in either case, “there must be actual sensory experience of the pain and suffering of the victim.”

In this case, the Supreme Court noted that Colbert could not sue for negligent infliction of emotional distress because he did not “witness his daughter’s drowning or see her final minutes before she disappeared.”

Justice Charles Johnson and two other justices dissented. They asserted that whether Colbert was a foreseeable plaintiff was an unresolved question of fact, so that the trial court should have denied Skier's Choice’s summary judgment motion and let the jury decide the question.