Shortly after 2: 00 a. m. one summer night, 12 year old Denise Colbert and several friends took a motor boat out on Lake Tapps, in Washington state. Denise had been drinking. Skier’s Choice, Inc. had manufactured the Moomba brand boat they were using. Denise and several of her friends jumped off the boat into the water and held onto the boat’s rear platform as the boat drove slowly toward shore. When the boat neared 200 yards from shore, Denise and Lindsay Lynam began swimming to shore. Sometime between 3: 00 and 3: 30 a. m., Lindsay noticed that Denise had disappeared beneath the water’s surface. The friends called 911 and began searching for Denise. One of the friends called Denise’s father, Jay Colbert, and told him that Denise had fallen off the boat and they could not find her.
Police and other rescuers arrived around 3: 45 a. m., and Mr. Colbert arrived sometime thereafter. Mr. Colbert went to a friend’s dock, where he could watch the rescuers search for Denise. The rescuers searched with boats, spotlights, and divers. Sometime after 6: 00 a. m., the rescuers found Denise’s body. About 10 minutes later, Mr. Colbert saw the rescuers, about 100 yards away, pull a body out of the water and onto a boat. The rescuers wrapped the body in a blanket and placed the body in an ambulance while Mr. Colbert looked on. The medical examiner reported the cause of Denise’s death as drowning. The examiner noted two other significant conditions: high levels of carbon monoxide and ethanol toxicity that would come from a boat’s engine.
Thereafter, Mr. Colbert saw a psychologist, who later testified that Mr. Colbert was suffering from severe emotional distress caused by the death of his daughter. Mr. Colbert sued Skier’s Choice, Inc., the manufacturer of the boat, to recover damages under the doctrine of negligent infliction of emotional distress. The trial court dismissed Mr. Colbert’s claim. Mr. Colbert appealed. Is the defendant liable to Mr. Colbert under the legal theory of negligent infliction of emotional distress in this case? Did the defendant act ethically by denying liability in this case? Colbert v. Moomba Sports, Inc. and Skier’s Choice, Inc., 135 P. 3d 485, 2006 Wash. App. Lexis 975 (Court of Appeals of Washington, 2006)