By Pamela C. Maloney, J.D.
The family of a foreign exchange student who was killed when an amphibious tourist vehicle, commonly referred to as a "Duck," collided with the motorcoach in which she was riding could not proceed, under Washington law, with wrongful death and survival claims against the operator of the Duck, a federal district court in Washington ruled, dismissing those claims, but retaining the same claims under Georgia and Missouri law. The parents’ claim for outrage (intentional and/or negligent infliction of emotional distress) under Washington law also was dismissed because they had not witnessed the accident. However, the outrage claims filed under Georgia and Missouri law remained pending against the Duck’s manufacturer and operator (Estate of Kim Ha Ram v. Ride the Ducks of Seattle, LLC, October 17, 2016, Zilly, T.).
The foreign exchange student was seated on the driver’s side of the motorcoach when the Duck, which had been manufactured by Ride the Ducks International, LLC (International Duck) and was being operated by Ride the Ducks of Seattle, LLC (Seattle Duck), crossed the center line and collided with the left side of the motorcoach near the driver’s compartment. The driver of the Duck reported that he had heard a loud bang before losing control of the vehicle. The foreign exchange student died from her injuries three days after the accident.
Underlying complaint. The estate’s complaint stated counts for negligent maintenance or repair and negligent operation against Duck International under Washington law. The student’s parents also set forth a count for emotional distress under Washington, Georgia, and Missouri laws based on allegations that the conduct of both International Duck and Seattle Duck was extreme or outrageous. Finally, the complaint stated causes of action against International Duck for defects in manufacturing, design, and warnings under Georgia products liability law and alleged that under Missouri law, the Duck was in a defective condition unreasonably dangerous when put to a reasonably anticipated use, or as result of inadequate warnings.
Wrongful death and survivor actions. Under Washington’s statutory scheme governing wrongful death and survival actions, second-tier beneficiaries, defined as parents or siblings of a decedent, could recover if no first-tier beneficiaries existed (as was the case in this action), and if the second tier-beneficiaries were dependent on the deceased person for support and were residents within the United States at the time of death. The family argued that the dependence and residence requirements for second-tier beneficiaries were impliedly repealed by Washington’s Law Against Discrimination (WLAD) and violated the Equal Protection Clause of both the state and federal constitutions.
Dismissing the argument based on the WLAD, the court noted that although the wrongful death statute makes a distinction based on marital status and age, it does not require or permit actions that constitute unfair practices under the WLAD. Furthermore, the statutory scheme governing these actions is facially neutral with respect to race, color, creed, national origin, sex, sexual orientation, veteran or military status, and disability. Thus, the wrongful death and survival statute was not repealed by the WLAD.
The wrongful death and survival statute also passes constitutional muster under the state and federal equal protection clauses. The family’s challenge with regard to the dependence requirement has been rejected repeatedly by Washington courts who have observed that parents and siblings who are financially dependent on a decedent are affected differently and more directly by that person’s death than those who are not dependent. The distinction between dependent and non-dependent family members also passes muster under a rational basis review because neither a suspect classification nor a fundamental right was at issue.
Although the residence criteria has received little attention from the Washington courts, it too passed constitutional review because the restriction does not distinguish between citizens and non-citizens; nor does it distinguish on the basis of race, national origin, or other impermissible immutable characteristics. The court emphasized that a resident alien, who qualified as a financially dependent parent or sibling of a decedent, could recover under the statute to the same extent as a similarly-situated American citizen residing in the United States. Thus, in enacting the residency requirement, Washington did not deny equal protection of the laws to any person within its jurisdiction.
The court refused to grant the family leave to amend the complaint because even if the family were able to overcome the financial dependence hurdle, it could not meet the residence requirement. Thus, any attempt to cure the pleadings would be futile. As a result, the court dismissed the wrongful death claim and the prayer for non-pecuniary damages in the survival action against Seattle Duck and International Duck based on Washington law, but those claims based on Georgia and Missouri law remained pending.
Outrage. Under Washington law, a plaintiff could not recover for eitherintentional or negligent infliction of emotional distress if he or she had not witnessed the accident at issue or did not arrive shortly thereafter, meaning if the plaintiff had not seen the accident or the horrendous attendant circumstances. Acknowledging that the student’s parents undoubtedly had suffered distress over the loss of their daughter and during the days spent with her at the hospital before her death, they did not observe her injuries at the scene or the aftermath of the collision. Thus, they could not pursue a claim for intentional or negligent infliction of emotion distress under Washington law. However, the parents’ outrage claims brought under Georgia and Missouri law were not dismissed.
The case is No. C15-1929 TSZ.
Attorneys: Anne Schroeder (Paine Hamblen LLP) for Estate of Kim Ha Ram. Nicholas Carlson (Patterson Buchanan Fobes & Leitch PS) for Ride the Ducks of Seattle, LLC. Angela Hunt (Fallon, McKinley & Wakefield, PLLC) for Ride the Ducks International, LLC.
Companies: Ride the Ducks of Seattle, LLC; Ride the Ducks International, LLC
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