Shortly after $2$:$00$ AM one summer night, $21-$year$-$old Denise Colbert $($Denise$)$ and several friends took a motor$-$boat out on Lake Tapps, in Washington state. Denise had been drinking. Skier$$s Choice, Inc had manufactured the boat. Denise and several of her friends jumped off the boat and held onto the boat$$s rear platform as the boat drove slowly toward shore. When the boat neared $200$ yards offshore, Denise and Lindsey Lynam began swimming to shore. Sometime between $3$:$00$ and $3$:$30$ AM$,$ Lynam 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 in the lake.

Police and other rescuers began arriving around $3$:$45$ AM and Mr$.$ Colbert arrived sometime thereafter. Mr$.$ Colbert went to a friend$$s dock, where he could watch the rescuers search for Denise. The rescuers searched with boats, spotlights, and divers. Sometime after $6$:$00$ AM$,$ the rescuers found Denise's body. About $10$ minutes later, Mr$.$ Colbert saw the rescuers, about $100$ yards away, pull a body out of the water onto a boat. The rescuers wrapped the body with a blanket and placed the body in an ambulance while Mr$.$ Colbert looked on$.$ The medical examiner reported the cause of Denise's death as drowning. The examiner noted two other significant conditions, high levels of carbon monoxide and ethanol toxicity that would come from a boat$$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.

Questions:

$1.$ Is the defendant liable to Mr$.$ Colbert under the legal theory of negligent infliction of emotional distress in this case?

$2.$ Did the defendant act ethically by saying they were not liable in this case?