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?