Washington Case Law Update: Plaintiff Must Be “Foreseeable” to Bring Negligent Infliction of Emotional Distress Claim

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Washington Case Law Update: Plaintiff Must Be “Foreseeable” to Bring Negligent Infliction of Emotional Distress Claim

From the desk of Kyle Riley: Washington law provides for claims of negligent infliction of emotional distress (“NIED”) for “foreseeable” plaintiffs. But how do courts examine whether a particular plaintiff is “foreseeable?” Read on to find out.

Claims Pointer: In this case arising out of a parent witnessing her child’s death as a result of a car accident, the Washington Court of Appeals held that the parent was not a foreseeable NIED plaintiff because she was told about the accident in advance, arrived on the accident scene after emergency responders, and did not have an “actual sensory experience” of the deceased’s pain and suffering.  The case provides an important discussion of the requirements of an NIED claim, an important consideration when defending bystander claims.

Cortese v. Wells, No. 76748-8-I, Washington Court of Appeals, Div. I (June 12, 2017) (unpublished)

While driving his pickup truck around a curve, Lucas Wells (“Wells”) lost control. The truck overturned and slid to a stop. His passenger, seventeen-year-old Tanner Trosko (“Trosko”), died from mechanical asphyxiation due to his position in the truck. Trosko’s parents, Trina (“Trina”) and Richard Cortese (collectively, the “Corteses”) lived near the accident scene and were doing yard work outside when the accident occurred. They heard the sirens of emergency responders, but at the time they did not realize what had happened or that Trosko was involved. Soon after, Wells’s father went to the Corteses’ house to inform them that Trosko had been involved in an accident and did not survive. The Corteses drove to the scene, arriving about 20 minutes after the accident. The scene was blocked off by the surrounding emergency vehicles, denying them entry. Trosko’s body had been removed from the truck and was lying on the other side of the...

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