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.

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.

Six-year limitation bars claims against subcontractor

By Timothy D. Shea

The six-year statute of repose applies to bar to a general contractor's untimely breach-of-contract claims against its subcontractor, the Washington Court of Appeals recently held.

In Harmony at Madrona Park Owners Assn. v. Madison Harmony Dev., Inc., a condominium homeowners’ association sued the condominium developer, Madison Harmony Development, alleging construction defects. Madison brought a third-party complaint against the Ledcor Industries, the general contractor, in 2002. Ledcor brought a fourth-party complaint against several subcontractors. Ledcor then settled with the developer. On November 30, 2004, Ledcor amended its fourth-party complaint to add more subcontractors to the suit, including Serock Construction. Ledcor alleged that Serock breached its subcontract and failed to meet indemnification obligations that it owed to Ledcor.

Serock had subcontracted to complete exterior trim on 13 condominium buildings. The subcontract required that Serock’s work be done in a workmanlike manner and obligated Serock to defend and indemnify Ledcor from claims arising from work under Serock’s subcontract.

All other subcontractors settled with Ledcor before trial. After a bench trial, the trial court held that although Serock had breached its subcontract as to 11 buildings, the statute of limitations barred Ledcor’s claims as to four of the buildings. Nevertheless, the trial court held that Serock's indemnity obligation applied to those four buildings. The trial court awarded indemnification damages as to those four buildings and breach-of-contract damages to the other seven.

Serock appealed. It contended that the six-year statute of limitations barred all of Ledcor’s breach-of-contract claims, because the statute should have begun running on the date that Serock performed the defective work, or alternatively, when Serock stopped performance, rather than on the date of substantial completion of each building.

The Court of Appeals agreed with Serock. The court considered two separate statutory limitations. First, the statute of limitations for written contracts, RCW 4.16.040, requires that a breach-of-contract action be brought within six years after the claim has accrued, which typically is when the breach has occurred. Second, the statute of repose regarding construction-related claims, RCW 4.16.300-.320, requires that an action be brought within six years after substantial completion of construction, or completion of services, whichever is later.

Ledcor argued that the discovery rule applied to its breach-of-contract claims against Serock. That rule tolls the limitation period until the claimant discovered or reasonably should have discovered its claim.

The Court of Appeals considered that argument in light of RCW 4.16.326(1)(g), a statute that sought to eliminate the discovery rule in construction cases by providing that the six-year contract statute of limitations began to run upon termination of services or substantial completion. The Court of Appeals noted that the Washington Supreme Court recently had held that RCW 4.16.326(1)(g) applied only where a defendant pleaded it as an affirmative defense in its answer. In that case, the Supreme Court held that RCW 4.16.326 did not lengthen the six-year statute of limitations.

Here, however, Ledcor never alleged latent defects that would suggest that it did not immediately discover its claims against Serock. The Court of Appeals held that the discovery rule did not apply and that Serock had no reason to plead RCW 4.16.326 as an affirmative defense. And in any event, that statute did not alter in any way the six-year period during which Ledcor was required to bring its breach-of-contract claim against Serock.

Around The Firm

Lee Smart is growing again. The firm has hired several new associates in the past few months: Mark A. Horey, Allison L Micheli, Stefanie L. Peppard, Timothy D. Shea, and Wayne Vavrichek.

Sam B. Franklin and William R. Kiendl won summary judgment of dismissal in Stephenson v. America One Finance, et al. Sam and Bill’s client, a Puyallup attorney, was sued by a bankruptcy debtor. The debtor alleged emotional distress and Consumer Protection Act theories relating to a mortgage-refinancing transaction. Sam and Bill showed that the debtor’s allegations were conclusory and assumed the existence of fraud, when the debtor had no admissible evidentiary facts supporting any of her theories.

Jeffrey P. Downer and Timothy D. Shea won summary judgment in Miller v. Costco, a premises-liability action. Plaintiff tripped on river rock in the asphalt parking lot of the Wenatchee Costco warehouse. He suffered a shoulder injury that required surgery and incurred about $75,000 in medical bills. The rocks had spilled from landscaping in a parking island. Plaintiff had seen and complained about the rocks on other occasions. The court agreed with Jeff and Tim that since plaintiff actually knew of the allegedly dangerous condition, he could have protected himself against it, and Costco therefore was not liable for the injury.

Jeff Downer and Carrie M. Bixel successfully defended Alford v. Telford, a real estate malpractice claim. Plaintiffs bought a house that had standing water in the crawlspace of an addition. They claimed that they did not receive the legally required disclosure statement from the seller and that their real estate agent wrongly told them that no disclosure statement was necessary. After moving into the house, they discovered that the standing water could not be remedied with just a sump pump; the water caused settling of the structure and mold throughout the addition, which would have to be torn down and replaced for about $115,000. But at their depositions, plaintiffs conceded that they had purchased the property subject to an inspection, that they looked to the inspector rather than to the real estate agents to determine the home’s condition, and that they agreed in the purchase and sale agreement that they were not relying on any representations by the real estate agents. The day after plaintiffs’ depositions, Jeff persuaded plaintiffs’ counsel to drop the case.

Washington Law & Politics magazine has recognized several Lee Smart attorneys as “Superlawyers” again this year for their high degree of excellence in the profession. Based on the magazine’s independent research and surveys of the attorneys’ professional peers, the magazine named David L. Martin, Joel E. Wright, Jeffrey P. Downer, and Sam B. Franklin as Superlawyers for 2008. Washington Law & Politics also continues to recognize Lee Smart’s up-and-coming younger lawyers. The magazine’s “Rising Stars” Lawyers are asked to nominate the best attorneys who are 40 or under, or who have been practicing for 10 years or less. Washington lawyers are asked to nominate lawyers they have personally observed in action, as opposing counsel or co-counsel, or through other firsthand courtroom observation. Only 2.5 percent of practicing attorneys can earn the distinction. The magazine’s Rising Stars for 2008 include Lee Smart lawyers Ketia B. Wick and Janine E. Leary.