The Case of the Spit Burger

Because the Washington Product Liability Act does not provide for damages for emotional distress in the absence of physical injury, a federal judge dismissed a case against Burger King for negligence, product liability and vicarious liability that had been filed by a Clark County deputy sheriff, Edward Bylsma. In March 2009, the sheriff drove his marked police car through a Burger King drive-through and had an uneasy feeling after he received his burger. He stopped in a parking lot to remove the top bun and found “slimy, clear and white phlegm glob” on the meat patty. DNA testing later confirmed that the saliva matched that of one of the Burger King employees. Although he did not eat the burger, the incident caused Bylsma sleeplessness, vomiting and food aversion.

Bylsma appealed to the 9th Circuit, which asked the Washington Supreme Court for guidance. In an opinion issued February 7, 2013 the state’s highest court concluded Thursday that Bylsma could take his case to trial. “Common sense tells us that food consumption is a personal matter, and contaminated food is closely associated with disgust and other kinds of emotional turmoil,” Justice Steven Gonzalez wrote for the court. “Thus, when a food manufacturer served a contaminated food product, it is well within the scope of foreseeable harm consequences that the individual will suffer emotional damages.” The Supreme Court held that at trial, Bylsma may be successful “if the emotional distress is a reasonable response and manifest by objective symptomatology”.

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