EMAIL TO A FRIEND COMMENT

 

Relief for Emotional Distress Caused by Being Served and Touching, But Not Consuming, Hamburger Contaminated With Restaurant Employee's Bodily Fluid


A sheriff's deputy, while on a break, drove his marked police cruiser to a Burger King restaurant drive-thru in Vancouver, Washington. Two employees who have criminal records were working that shift but there was no supervisor on duty. The deputy ordered a Whopper with cheese.

 

After receiving his food, he had an uneasy feeling and pulled into another parking lot down the street. Before consuming the hamburger, he lifted the top bun and observed a slimy, clear and white phlegm glob on the meat patty. He inserted his finger into the glob and then called for back-up.

 

Later DNA testing revealed that the glob on the meat patty was one of the employee's saliva. The employee pled guilty to felony assault and was sentenced to 90 days in jail. The deputy sued Burger King in the United States District Court for the District of Oregon raising claims under Oregon law for product liability, negligence, and vicarious liability. The suit alleged that the deputy suffers ongoing emotional trauma from the incident, including vomiting, nausea, food anxiety, and sleeplessness, and has sought treatment by a mental health professional. Burger King moved for judgment on the pleadings.

 

The United States District Court for the District of Oregon dismissed the deputy’s claims, holding that the Washington Product Liability Act (“WPLA”) does not permit relief for emotional distress damages, in the absence of physical injury to the plaintiff purchaser, caused by being served and touching, but not consuming, a contaminated food product.

 

The United States Court of Appeals for the Ninth Circuit certified the following question to the Supreme Court for the State of Washington. Does the Washington Product Liability Act permit relief for emotional distress damages, in the absence of physical injury, caused to the direct purchaser by being served and touching, but not consuming, a contaminated food product?

 

The Supreme Court for the State of Washington answered in the affirmative, holding that the WPLA permits relief in such circumstances, but only if the emotional distress is a reasonable reaction and manifest by objective symptomatology. The state court reasoned that Washington allows claims for emotional distress in the absence of physical injury only where emotional distress is (1) within the scope of foreseeable harm of the negligent conduct, (2) a reasonable reaction given the circumstances, and (3) manifest by objective symptomatology. When a food manufacturer serves a contaminated food product, it is well within the scope of foreseeable harmful consequences that the individual served will suffer emotional distress.

 

The United States Court of Appeals for the Ninth Circuit reversed and remanded to permit the deputy to amend his complaint to conform to Washington law.

 

See: Bylsma v. Burger King Corp., 293 P.3d 1168 (Wash., January 31, 2013), answer to certified question conformed to Bylsma v. Burger King Corp., 2013 WL 501651 (C.A.9 (Or.), February 12, 2013) (not selected for publication in the Federal Reporter).

 

 

REPRINTS & PERMISSIONS COMMENT