                                                                     FILE
                                                             COURT OF APPE.ALS OW 1
                                                              STATE OF WASE::-1C:101!
                                                                  JE 12 AM



   IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                       DIVISION ONE

TRINA CORTESE, an individual, and     )           No. 76748-8-1
TRINA CORTESE, as personal            )
representative of the ESTATE          )
OF TANNER TROSKO; RICHARD             )
CORTESE and TRINA CORTESE,            )
husband and wife, and their marital   )
community,                            )
                                      )
                   Appellants,        )
                                      )
          v.                          )
                                      )
LUCAS WELLS, CORY WELLS,              )           UNPUBLISHED OPINION
ROCHELLE WELLS, and the marital )
community of Cory and Rochelle Wells, )           FILED: June 12, 2017
CORY AND ROCHELLLE WELLS              )
d/b/a TLC TOWING, an unincorporated )
business, and STATE FARM MUTUAL )
AUTOMOBILE INSURANCE                  )
COMPANY,                              )
                                      )
                   Respondents.       )
                                      )

       VERELLEN, C.J. — Trina Cortese's son, Tanner Trosko, died from mechanical
asphyxiation after a pickup truck he was a passenger in overturned. Trina sued State

Farm Mutual Automobile Insurance Company, her underinsured motorist insurer, and

others on several theories, including negligent infliction of emotional distress. The

trial court dismissed Trina's negligent infliction of emotional distress claim on

summary judgment. Trina appeals, arguing she has a viable negligent infliction of
No. 76748-8-1/2


emotional distress claim even though she learned of her son's accident and that he

died before she drove to the accident scene. But negligent infliction of emotional

distress "is a limited tort theory of recovery."1 The "kind of shock the tort requires is

the result of the immediate aftermath of an accident.' It is not the emotional distress

one experiences at the scene after already learning of the accident before coming to

the scene."2 Accordingly, we affirm.

                                            FACTS

       On September 4, 2013, Lucas Wells lost control of his 1960 Ford pickup truck

while driving around a curve. The truck overturned and slid to a stop. Seventeen-

year-old Tanner Trosko, who was a passenger in the truck, died from mechanical

asphyxiation due to his position in the truck when it came to rest.

       Trosko's parents, Trina and Richard Cortese lived near the accident scene

and were outside doing yard work when the accident occurred.3 Trina discussed the

sequence of events leading up to her arrival at the scene in her deposition:

      And, and then I heard the sirens, you know, and they didn't stop. They
      just kept on going. And I said, oh, my God, you know, somebody really
      got hurt. But, but I knew that my son went the other way. He went 1-5.
      He was going to L.A. Fitness.

                So, you know, phew, he was okay. Because this was like behind
       the house when the sirens just kept going on and on. And, and so a
       little bit later one of[Trosko's] friends comes to the door and the dog's
       barking. And I said, "Tanner's not here."

              And he goes,"No. Have you heard from him?" I said,"He went
       to LA Fitness." You know, I don't, I don't like to call or anything when,

       1 Colbert v. Moomba Sports, Inc., 163 Wn.2d 43, 60, 176 P.3d 497(2008).
       2 Id. (quoting Hegel v. McMahon, 136 Wn.2d 122, 130, 960 P.2d 424 (1998)).

       3 For clarity, the   Corteses are referred to by their first names.
No. 76748-8-1/3


       you know, I know if he's driving. And he told me,"No. Call him.
       There's been an accident." And so I tried to call him and there was no
       answer.



             And pretty soon [Wells's] dad comes with somebody and they
      come in the house and they tell me that[Trosko]'s been in an accident
      and he didn't survive. And I said,"Oh, my God. I just saw him. He was
      just here. Oh, my God, no." And, I had to go to him.



              So my husband drove us to [the accident scene].[41

       When the Corteses arrived roughly 20 minutes after the accident, the accident

scene was surrounded by emergency vehicles and blocked off, denying the Corteses

entry. Trosko had been removed from the truck and was laying on the other side of

the road covered with a sheet. Trina testified she was able to see her son's feet

under the sheet.

      A psychiatrist diagnosed Trina with posttraumatic stress disorder as a result of

her son's accident. Trina has not returned to work as a respiratory therapist since the

accident.

       On June 20, 2014, Trina, both individually and as personal representative of

her son's estate, sued Wells and his parents on several theories, including negligent

infliction of emotional distress. At the time of the accident, the Corteses had an

automobile insurance policy in effect with State Farm Mutual Automobile Insurance

Company. The policy included underinsured motorist coverage. State Farm




      4 CP   at 67-69.


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No. 76748-8-1/4


intervened in the suit and Trina filed an amended complaint on December 28, 2015,

adding State Farm as a defendant. -

       On June 21, 2016, State Farm moved for summary judgment seeking to

dismiss Trina's claim for negligent infliction of emotional distress—Trina's only

remaining claim against State Farm. State Farm argued Trina had no claim of

negligent infliction of emotional distress because she was informed that her son did

not survive the accident before she arrived at the scene.

       On August 26, 2016, the trial court granted summary judgment dismissing

Trina's claim for negligence infliction of emotional distress. Since there were no

further claims pending against State Farm, the judgment granting State Farm's

motion for summary judgment dismissed State Farm as a party defendant.

      Trina appeals.

                                      ANALYSIS

      Trina contends the trial court erred in dismissing her negligent infliction of

emotional distress claim on summary judgment. We disagree.

       We review a summary judgment order de novo, engaging in the same inquiry

as the trial court.5 We view the facts and all reasonable inferences in the light most

favorable to the nonmoving party.6 Summary judgment is proper if there are no




       5Beaupre v. Pierce County, 161 Wn.2d 568, 571, 166 P.3d 712(2007).
      6 Fulton v. Dep't of Soc. & Health Servs., 169 Wn. App. 137, 147, 279 P.3d
500 (2012).


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No. 76748-8-1/5


genuine issues of material fact.7 "A material fact is one that affects the outcome of

the litigation."8

       "The tort of negligent infliction of emotional distress is a limited, judicially

created cause of action that allows a family member to a recovery for 'foreseeable'

intangible injuries caused by viewing a physically injured loved one shortly after a

traumatic accident."8 In Washington, a cause of action for negligent infliction of

emotional distress is recognized "where a plaintiff witnesses the victim's injuries at

the scene of an accident shortly after it occurs and before there is a material change

in the attendant circumstances.'"10

               A plaintiff cannot recover if he or she did not witness the accident
       and did not arrive shortly thereafter, meaning that he or she did not see
       the accident or the horrendous attendant circumstances such as
       bleeding or other symptoms of injury, the victim's cries of pain, and, in
       some cases, the victim's dying words, all of which would constitute a
       continuation of the event. Emotional distress from such circumstances
       is not the same as the emotional distress that... a person suffers after
       learning of the suffering of the victim from others who were present, but
       does not personally see the injuries or the aftermath of the accident
       before there is a material change. There must be actual sensory
       experience of the pain and suffering of the victim—personal experience
       of the horror.r111

        In Hegel v. McMahon, our Supreme Court reviewed consolidated cases

involving the issue of negligent infliction of emotional distress.12 In the first case,


       7 CR    56(c); Lowman v. Wilbur, 178 Wn.2d 165, 168-69, 309 P.3d 387(2013).
       8 Janaszak     v. State, 173 Wn. App. 703, 711, 297 P.3d 273(2013).
       9 Colbert, 163 Wn.2d at 49 (citing Hegel, 136 Wn.2d 125-26; Gain v. Carroll
Mill Co., 114 Wn.2d 254, 261, 787 P.2d 553(1990)).
        18   Id. at 55 (quoting Hegel, 136 Wn.2d at 132).
        11 Id. at 55-56 (emphasis added).
        12 136 Wn.2d    122, 960 P.2d 424(1998).


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No. 76748-8-1/6


Dale Hegel was struck by a car and knocked into a ditch by the side of the road

severely injured.13 His relatives, the plaintiffs, discovered him when they drove along

the same road shortly after the accident.14 In the second case, the victim was killed

when his motorcycle collided with a school bus.15 His father, the plaintiff, happened

on the scene within 10 minutes, before emergency crews arrived.16 He saw his son

on the ground, still conscious, but with his leg cut off and another severe injury

leading to his death soon afterward.17 The Washington Supreme Court concluded

that it was improper for the lower courts to dismiss the plaintiffs' claims for negligent

infliction of emotional distress.15 The court stated that the plaintiffs in both cases

were present at the scene and may have witnessed their family members'suffering

before there was a substantial change in the victim's condition or location.19

       In Colbert v. Moomba Sports, Inc., Jay Colbert and his wife were awakened by

a 3:00 a.m. telephone phone call from their daughter's boyfriend.20 The boyfriend

told them their daughter had disappeared from the back of a boat at a nearby lake

and a search was taking place for her.21 Colbert drove to the lake, which was about




       13 Id. at 124-25.
       14 id.

       15 Id. at 125.
       16 id.

       17   Id.
       15 Id. at 132:
       19 id.

       20 163 Wn.2d     43, 46, 176 P.3d 497(2008).
       21   Id.


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No. 76748-8-1/7


five minutes away.22 When he arrived, police cars, ambulances, and the fire

department were at the scene.23 A few hours later, rescuers found Colbert's

daughter's body.24 From about 100 yards away, Colbert could see his daughter's

body being pulled onto the rescue boat.25 The Washington Supreme Court affirmed

the Court of Appeals decision in holding that Colbert was not a foreseeable plaintiff

as a matter of law.26 The Supreme Court explained that when Colbert arrived, "the

accident had already occurred—he did not observe his daughter's suffering or her

condition while she was drowning."27 The court also explained that it is appropriate

to consider whether a plaintiff arrives on the scene of an accident unwittingly when

determining whether a plaintiff can bring a negligent infliction of emotional distress

claim.28 The court accepted the reasoning in a Pennsylvania decision, Mazzaqatti v.

Everingham, regarding an unwitting plaintiff:

      "[W]here the close relative is not present at the scene of the accident,
      but instead learns of the accident from a third party, the close relative's
      prior knowledge of the injury to the victim serves as a buffer against the
      full impact of observing the accident scene. By contrast, the relative
      who contemporaneously observes the tortious conduct has no time
      span in which to brace his or her emotional system."[28]



       22 Id.
       23 id.

       24   Id.
       25   Id.
       28   Id. at 58.
       27   Id. at 57.
       28   Id. at 60.
       29Id. at 59-60(emphasis added)(quoting Mazzagatti v. Everinqham, 512 Pa.
266, 279-80, 516 A.2d 672(Pa. 1986)).


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No. 76748-8-1/8


       In this case, Trina was informed of her son's accident by a third party, and she

arrived at the scene of the accident roughly 20 minutes after the accident had

occurred. Emergency responders were already there and had the area blocked off.

The first time Trina saw her son, he was laying on the other side of the road covered

by a sheet. She could see the bottom of one of his feet and noticed his leg was bent

under the sheet. Trina "did not see any blood because they wouldn't let me get close

enough."3° Under these circumstances, there was a "material change" in the scene

because, unlike Heciel where the plaintiffs happened upon the scene of the accident,

Trosko had already been removed from the truck where he died and was laying on

the road when Trina first saw him. Additionally, similar to Colbert, emergency crews

had already responded to the scene and Trina did not witness the "horrendous

attendant circumstances such as bleeding or other symptoms of injury, the victim's

cries of pain,[or] the victim's dying words."31 As difficult as it would be for any parent

to see their deceased child, she did not have an "actual sensory experience of the

pain and suffering of" her son because he died before she arrived.32 Finally, Trina

had prior knowledge that her son did not survive the accident.33 As the Supreme

Court observed in Colbert, "[t]he kind of shock the tort requires is the result of the




       30 CP at 72.
       31   Colbert, 163 Wn.2d at 55.
       32   Id. at 56.
       33 CPat 68("And pretty soon [Wells's] dad comes with somebody and they
come in the house and they tell me that Tanner's been in an accident and he didn't
survive.").


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No. 76748-8-1/9


immediate aftermath of an accident.' It is not the emotional distress one experiences

at the scene after already learning of the accident before coming to the scene."34

       Accordingly, the trial court did not err in concluding that Trina was not a

foreseeable plaintiff as a matter of law.35

       Affirmed.




WE CONCUR:




       34 Colbert, 163 Wn.2d at 60 (quoting Hegel, 136 Wn.2d at 130).
       35 Trina's argument that a genuine issue of material fact exists whether she
arrived "shortly thereafter" the accident fails. As explained above, the arriving
"shortly thereafter" element of negligent infliction of emotional distress is not merely a
temporal limit—it is a limit on the type of emotional trauma that is recoverable. See
Colbert, 163 Wn.2d at 60; Hegel, 136 Wn.2d at 130.


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