In the cult comedy Super Troopers, a policeman orders a hamburger at a fast-food restaurant. The teenager taking his order calls back to the grill, “Double bacon cheeseburger. It’s for a cop.” The policeman asks why he said that, to which the teenager defensively replies, “I just said that so they’d make it good.” A beat passes, and the teenager yells back, “Don’t spit in that cop’s burger.”
The Juicy Facts
Life imitated art for police deputy Edward Bylsma, who ordered a Whopper at a Burger King drive-thru in Vancouver, WA. For whatever reason, Bylsma became suspicious when he received his food. He pulled over, lifted the top bun, and saw a glob of spit. So incensed was Bylsma that he ordered DNA testing performed on the spit, which matched a Burger King employee. Bylsma then sued Burger King in federal court. According to his complaint, he now vomits, can’t stomach food, and has a hard time sleeping. He has seen a therapist for his problems.
The federal court dismissed the complaint. When Bylsma appealed, the 9th Circuit Court of Appeals asked the Washington State Supreme Court this question: Does the Washington Product Liability Act (WPLA) — a statute that provides the sole remedy for product-based claims in Washington — allow plaintiffs to recover emotional distress damages absent a physical injury?
Yes, answered the Supreme Court, in a decision written by Justice Gonzalez and joined by five others. (The case is Bylsma v. Burger King Corp., No. 86912-0.) WPLA allows recovery for “harm,” which it defines as “any damages recognized by the courts of this state[.]” Washington courts in other contexts have allowed emotional distress claims without physical injury when the distress is foreseeable, reasonable, and accompanied by “objective symptomology.” Under that standard, plaintiffs have been allowed to recover emotional damages when an infant child was improperly buried, when a phone was flooded with calls after a company accidentally printed the wrong number on its advertisements, and when a mother sifted through her child’s cremated ashes (which were not placed in an urn), mistaking them for packing material. “Although none of these cases involved contaminated food,” wrote Justice Gonzalez, “each concerned emotionally laden personal interests, and emotional distress was an expected result. Common sense tells us that food consumption is a personal matter and contaminated food is closely associated with disgust[.]” As a result, the Court held, Officer Bylsma was allowed to proceed with his claim.
Justice James Johnson dissented, joined by Justices Madsen and Owens. The dissenters relied principally on a 1993 case (Physicians Ins. Exch. v. Fisons Corp., 122 Wn.2d 299) that denied emotional damages to a doctor who sued a pharmaceutical company for making dangerous medicine, which the doctor then prescribed. That case contained a general statement that emotional damages without physical injury are only recoverable if the defendant acted intentionally. WPLA does not require intent — it does not even require negligence in some instances. Consequently, the dissenters argued, emotional damages are unavailable under the current case law. The dissenting justices also predicted a parade of frivolous lawsuits. What if a vegetarian is accidentally served meat? Or a diner comes across a stray hair in her soup? Or a kosher adherent unwittingly eats a dish with pork in it? According to the dissent, those situations are just facts of life, not anything to make a federal case out of.
Only time will tell if this decision will open the floodgates. In the meantime, fast-food employees are advised to practice restraint when considering whether to expectorate in a customer’s lunch.