Posted on February 27, 2008 »
Recent Case Law
On February 14, 2008, the Washington State Supreme Court affirmed a Court of Appeals ruling that continues a trend favorable to defendants by placing further limits on the tort cause of action for negligent infliction of emotional distress (NIED). In Colbert v. Moomba Sports, Inc., the court held that the class of persons who can bring a bystander cause of action for NIED is limited as a matter of law to relatives of accident victims who meet 3 requirements:
(1) the bystander was present at the scene of an accident when it happened, or arrived “shortly thereafter” before there is a material change in the victim’s condition or location (i.e., the relative must have “actual sensory experience of the pain and suffering of the victim – - personal experience of the horror”);
(2) the bystander arrived at the scene “unwittingly” (i.e., had not already been alerted to the accident and injuries before arrival at the scene); and
(3) the bystander can prove “objective symptoms” of emotional injury through medical evidence.
This ruling reaffirmed, and added to, prior cases placing limitations on the tort of NIED by clarifying the “shortly thereafter” requirement, and adding the “unwitting arrival” requirement. In so ruling, however, the Supreme Court rejected an additional element suggested by the Court of Appeals. The Court of Appeals had held that a bystander NIED plaintiff also must arrive at the scene before emergency personnel get there to meet the “shortly thereafter” requirement. The Supreme Court disagreed, reasoning that an NIED claim may be proved so long as there has been no substantial change in the victim’s condition or location when the relative arrives shortly after the accident, even if emergency personnel get to the scene just before the relative does.
In Colbert, the Supreme Court applied this law to a case where a father was called to the scene of his daughter’s drowning. The father went to a neighborhood lake after his daughter’s boyfriend called the father around 3 a.m. to tell him police and fire fighters were searching for his daughter who had disappeared after swimming behind a friend’s boat. The father observed the search efforts for about 3 hours and watched as his daughter’s body was brought to the surface and taken away by ambulance.
The Court reasoned that when the father arrived, the accident had already occurred and he did not see his daughter’s suffering or her condition while she was drowning. In other words, there had been a material change in her condition or location by the time he got to the scene so, as a matter of law, he did not arrive “shortly after” the accident. Additionally, he did not arrive “unwittingly” because he was alerted to the accident by his daughter’s boyfriend before he arrived at the scene. Consequently, the Supreme Court affirmed the trial court and the Court of Appeals’ rulings dismissing the father’s NIED claim. Given the rulings on these issues, the Court did not address whether the father had presented sufficient objective evidence of emotional distress.
Three justices dissented from the majority’s ruling. See http://www.courts.wa.gov/opinions/pdf/788332.no1.pdf. The dissent argued that actual sensory experience of a loved one’s suffering should not be required to prove an NIED claim. According to the dissenting justices, the distress of watching the unsuccessful rescue efforts should have been sufficient to meet the “shortly thereafter” requirement. The dissent also disagreed with adding the “unwitting arrival” requirement, arguing that it’s an unnecessary and arbitrary hurdle to impose on NIED plaintiffs.
The majority’s ruling shows the Supreme Court remains committed to narrowing the circumstances under which a defendant may be found liable to bystanders for NIED. This is a retrenchment from the broad parameters the court originally placed on the tort when it was judicially created in Washington in 1976. See Hunsley v. Giard, 87 Wn.2d 424, 553 P.2d 1096 (1976). Under Hunsley, defendants were subject to potentially unlimited liability to virtually anyone who became upset upon hearing of the injury or death of a loved one. That broad liability created by the Hunsley court was narrowed in Gain v. Carroll Mill Co., 114 Wn.2d 254, 787 P.2d 553 (1990), and later narrowed further in Hegel v. McMahon, 136 Wn.2d 122, 960 P.2d 424 (1998). The Colbert decision continues the trend of restricting this judicially-created bystander liability to a very limited class of potential plaintiffs, effectively overruling Hunsley.