OLYMPIA — The state Supreme Court has ruled that the father of a woman who drowned after inhaling carbon monoxide fumes from a boat is not entitled to emotional distress damages from the company that manufactured the boat.
In a 5-3 ruling Thursday, the high court said that Jay Colbert of Bonney Lake does not fall within an identified class of claimants who are entitled to such damages for the 2003 death of his 21-year-old daughter, Denise.
“We do not doubt Mr. Colbert’s distress at the loss of his daughter, or that he underwent a terrible trial while waiting for divers to locate and recover his daughter’s body,” the majority, led by Justice Barbara Madsen, wrote. “But he simply did not experience conditions that are comparable to actually witnessing a loved one’s accidental death or serious injuries.”
Madsen was joined by Justices Susan Owens, Mary Fairhurst, James M. Johnson and Justice Pro Tem Bobbe Bridge in the decision.
Denise Colbert and several friends took a boat out in August 2003 on Lake Tapps in Pierce County. She and several of the friends jumped off the boat and started to swim to shore. When they realized the shore was farther away than they had estimated, Marc Jacobi, the boat’s owner and driver, moved the boat alongside them and drove slowly toward shore while the swimmers held onto the boat’s rear platform, according to the ruling.
The practice of hanging onto the platform while a boat is moving is known as “teak surfing” and in 2006, in response to Colbert’s death and that of another woman who died the same way, a measure banning the practice was passed into law.
But Jay Colbert’s attorney, William Scherer, said Denise wasn’t teak surfing, but was alternately swimming and hanging onto the swim platform while the boat drifted in the water, and then while swimming back to shore with friends, slipped under the water.
Colbert sued the boat manufacturer, Moomba Sports, and others on several theories, including failure to warn of the danger of carbon monoxide exposure and negligent infliction of emotional distress.
The claim of negligent infliction of emotional distress allows family members to obtain damages for “foreseeable” intangible injuries caused by viewing a physically injured loved one shortly after a traumatic accident.
A plaintiff cannot recover damages if he or she did not witness the accident or the immediate aftermath, like “the crushed body, the bleeding, the cries of pain, and, in some cases, the dying words,” the ruling said, citing case law set by a prior ruling.
“Basically, what the court is saying is you’ve got to be driving along in your car and come across a family member who just got mangled moments before in a wreck,” Scherer said. “It gets down to timing. How quick is quick enough? Did Mr. Colbert actually have to be there to see her slip beneath the surface of Lake Tapps?”
Scherer said that Colbert was called in the middle of the night to be told his daughter was missing, but upon arriving at the lake held out hope she would be OK because of her athletic ability.
After the search went on for hours, Colbert said he saw a buoy emerge from the water, saw rescuers pull a body out of the water onto a boat, and saw them put his daughter’s body on a stretcher and put it in an ambulance.
“From a humanistic point of view, the majority opinion is an atrocity,” Scherer said. “It doesn’t measure up with common decency.”
“The court is saying we’re going to put a stopwatch on you and if you’re not in the scene in five or 10 minutes, we don’t care about your level of distress, it’s not good enough.”
The dissent agreed.
“The majority draws an artificial distinction in stating the hours spent viewing ultimately futile rescue efforts did not qualify as horrendous attendant circumstances,” Justice Charles Johnson wrote for the dissent, joined by Chief Justice Gerry Alexander and Justice Tom Chambers.
Scherer said a wrongful death claim in the case is still pending.
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