¶45
(dissenting) — While the majority does not overrule or undermine any of our prior cases, it misapplies to the facts of this case the principles those cases established. In doing so, the majority errs in concluding that the plaintiff in this case was unforeseeable as a matter of law. The majority further misinterprets prior cases by emphasizing actual sensory experience of the victim’s injuries and adopting an “unwitting” arrival requirement. While the majority correctly rejects a requirement that the plaintiff arrive before emergency personnel, on whether Jay Colbert arrived “shortly thereafter,” the majority has erroneously interpreted and applied case law.
C. Johnson, J.*64¶46 Contrary to the majority’s finding, by explaining in Hegel v. McMahon, 136 Wn.2d 122, 960 P.2d 424 (1998), what it meant to arrive shortly thereafter, we did not dispose of ordinary tort principles respecting foreseeability. In Hunsley v. Giard, 87 Wn.2d 424, 553 P.2d 1096 (1976), the first case in our jurisdiction to allow a claim for negligent infliction of emotional distress (NIED), we based requirements on general tort principles of duty, breach, proximate cause, and damages. As a restriction on liability, we required objective symptomatology, and through subsequent case law, we stated a specific limitation on foreseeability by requiring the bystander NIED plaintiff be physically present when the accident occurs or arrive shortly thereafter.
¶47 Who is foreseeably endangered by defendant’s conduct, however, has remained a question for the jury to determine, unless the court can conclude the plaintiff neither was present at the time of the accident nor arrived at the accident scene shortly thereafter. Based on this jurisprudence, after meeting the threshold requirement of presence at the accident scene shortly thereafter, like the plaintiffs in Hegel, Mr. Colbert should be afforded the right to have the issue of foreseeability go before the jury.
f 48 In concluding that Mr. Colbert did not arrive shortly thereafter, the majority ignores the purpose underlying our adoption of the tort — that the injury complained of must be a result of the trauma of visiting the accident scene, not ordinary grief for the loss of a loved one. In Hegel, we adopted an approach that focuses on the circumstances under which the observation is made: a family member who is not present when the accident occurs may nonetheless recover for emotional distress caused by observing an injured relative at the scene of the accident after its occurrence and before there is substantial change in the relative’s condition or location. We identified, in Hegel, the class of claimants as those who are present at the scene before the horror of the accident has abated.
*65¶49 The majority errs in concluding that Mr. Colbert does not fall within this identified class of claimants. Mr. Colbert, like the plaintiffs in Hegel, arrived at the accident scene to observe the substantially unchanged accident circumstances. While the majority recognizes that Mr. Colbert arrived at the scene of the accident “within a chronologically short time of [his daughter’s] death,” it erroneously concludes, “at no time did [Mr. Colbert] personally experience conditions that can be said to be a continuation of ‘ “an especially horrendous event.” ’ ” Majority at 57 (emphasis omitted) (quoting Hegel, 136 Wn.2d at 130 (quoting Gates v. Richardson, 719 P.2d 193, 199 (Wyo. 1986))). The majority’s own description of the cause of Mr. Colbert’s emotional distress refutes this point: “the emotional distress he experienced was related to viewing the rescue efforts, the stress of waiting and watching and then having his worst fears confirmed.” Majority at 62. The majority draws an artificial distinction in stating the hours spent viewing ultimately futile rescue efforts did not qualify as horrendous attendant circumstances.
|50 The majority equates the Hegel language of “witness” or “observe” in this case to seeing the victim’s suffering and repeatedly emphasizes “actual sensory experience of the pain and suffering of the victim.” Majority at 55-56. According to the majority, actual sensory experience of the victim’s suffering may be seeing bleeding or other symptoms of injury, or hearing the victim’s cries of pain, and, in some cases, the victim’s dying words. Majority at 55. While actual sensory experience is one of the rationales for allowing those who arrive at an accident scene to claim NIED, it has never been a determinative factor under our cases.
¶51 The majority farther misapplies case law by considering the distance from which a plaintiff sees the victim’s suffering and quotes the Court of Appeals opinion, finding “ ‘the distance must be close enough for the plaintiff to experience traumatic shock from a close-up view of the loved one’s agonizing injuries.’ ” Majority at 58 (emphasis *66added) (quoting Colbert v. Moomba Sports, Inc., 132 Wn. App. 916, 934 n.12, 135 P.3d 485 (2006)). By so limiting bystander NIED, the majority effectively precludes analogous situations where the plaintiff meets all Hegel requirements, including “ ‘observing an injured relative.’ ” Majority at 58 (emphasis omitted) (quoting Hegel, 136 Wn.2d at 132).
¶52 The dictionary defines “observe” as “to see or sense ... to come to realize or know.” Webster’s Third New International Dictionary 2345 (1986) (emphasis added). “Witness” is defined as “to see or know by reason of personal presence : have direct cognizance of: observe with one’s own eyes or ears : be present as an observer at: experience by personal observation — used esp. of something ... of more than ordinary significance.” Webster’s, supra, at 2627 (emphasis added).
¶53 The majority’s narrow application of “witness” or “observe” in this case to mean only a “closeup” view of injuries, disregards instances where a plaintiff’s view is obscured by a veil of water or fire, yet the plaintiff has come to realize or know, or to have direct cognizance of their loved one’s serious injuries or suffering. Analogous cases from other jurisdictions recognize this factor as being broader than the majority’s approach. See, e.g., Landreth v. Reed, 570 S.W.2d 486, 490 (Tex. Civ. App. 1978) (upholding plaintiff’s NIED award though she did not observe her infant sister’s drowning, but the resuscitative attempts, reasoning that actual observance of the accident is not required if there is instead an “experiential perception of it”); see also Ruttley v. Lee, 99-1130 (La. App. 5 Cir. 5/17/00), 761 So. 2d 777 (upholding bystander damage award for mother who arrived at traffic accident scene before her daughter’s body was removed from the car, but who never saw her daughter’s body as the car was covered with a canvas and police did not allow the mother to go to the car), writ denied, 2000-1781 (La. 9/22/00), 768 So. 2d 1287; In re Air Crash Disaster, 967 F.2d 1421 (9th Cir. 1992) (upholding recovery for NIED where plaintiff’s husband *67and two children perished when an airplane crashed into her home engulfing it in flames; plaintiff did not witness the plane crash, but returned several minutes after, was present at the scene of the fire, and was aware the fire was injuring her family); Wilks v. Hom, 2 Cal. App. 4th 1264, 3 Cal. Rptr. 2d 803 (1992) (upholding recovery for NIED where mother of children was contemporaneously aware that an explosion caused injuries to her children, though she did not actually see or hear them being injured); Zuniga v. Hous. Auth., 41 Cal. App. 4th 82, 48 Cal. Rptr. 2d 353 (1995) (permitting plaintiff’s NIED claim based on his seeing emergency personnel futilely attempt to rescue his family members from a burning building and the body of his daughter carried out of the building). The approach from these cases should be applied here.
¶54 The majority unnecessarily and arbitrarily extends our case law by adding an “unwitting” arrival requirement to the Hegel definition of arriving shortly thereafter. Though the plaintiffs in Hegel all happened upon the scene of the accident, there we did not recognize an unwitting arrival requirement, nor should we here.
¶55 The majority’s reliance on out-of-state case law is misplaced. Principally, the majority cites to Mazzagatti v. Everingham, 512 Pa. 266, 516 A.2d 672 (1986), to support adoption of an unwitting arrival requirement. In Mazzagatti, the plaintiff arrived at the scene minutes after being informed her daughter was in an accident. The court noted in dictum that prior knowledge of injury to the victim served as a buffer against the full impact of observing the accident scene. Mazzagatti, 512 Pa. at 279. But essential to the holding and in accord with prior case law was the requirement that the bystander NIED plaintiff contemporaneously observe the accident. Indeed, the Mazzagatti court rejected the NIED claim based on arriving at the scene shortly after the accident’s occurrence. In contrast, our recognition of bystander NIED is based on the trauma from observing the accident scene in all its alarming detail, whether the plaintiff was present to observe the injury-causing event or arrived shortly thereafter.
*68f 56 In Hegel, we determined that allowing recovery only to those who were present at the time of the injury-causing event created an arbitrary distinction; likewise, it is an arbitrary distinction to constrict the class of claimants only to those who unwittingly arrive upon the scene of the accident.5
¶57 Mr. Colbert witnessed the aftermath of the accident in all its alarming detail. He arrived within minutes of a 911 call to an accident scene complete with police cars, ambulances, and the fire department. He hoped his daughter would be found alive. He watched for hours and finally saw his daughter’s body being pulled over the side of a boat by her arm. On these facts, the shock Mr. Colbert experienced was not “the shock that is always attendant to a vital, healthy loved one’s sudden, unexpected death.” Majority at 62 (emphasis added).
¶58 Because Mr. Colbert was present at the accident scene, and may have come to realize or know of his daughter’s suffering before there was a substantial change in her condition or location, his mental distress should not be unforeseeable as a matter of law. Whether his mental distress was indeed foreseeable is a question of fact for the jury to decide. For these reasons, I dissent.
Alexander, C.J., and Chambers, J., concur with C. Johnson, J.
Other jurisdictions have not recognized an unwitting arrival requirement. See, e.g., Ruttley, 761 So. 2d at 782 (upholding bystander NIED damage award where mother arrived at the scene of the accident after receiving a call that her daughter had been in an accident).