If you’ve ever seen the movie Super Troopers, the tale behind this case will sound very familiar to you. Clark County Deputy Sheriff Edward J. Bylsma ordered a burger from Burger King, drove off, and feeling suspicious, he checked the burger before chowing down. He found a nice fat wad of spit, which DNA testing linked back to a fast food worker.
The worker got 90 days in jail. The officer got emotional distress, nausea, food aversion, and sleeplessness. The restaurant, meanwhile, got a lawsuit. Apparently, spitting on a cop’s burger is a no-win situation. Who would’ve thought?
The District Court dismissed the case after finding that the Washington Products Liability Act applied and that the WPLA does not allow damages for emotional distress absent physical injury. Bylsma appealed to the Ninth Circuit, who certified a question on Washington law to the state Supreme Court.
Washington Allows Emotional Distress Recovery Absent Physical Injury
The WPLA was adopted from the Uniform Products Liability Act except for one key provision: damages. Whereas the UPLA requires a physical symptom in order to recover for emotional distress resulting from a defective product, the WPLA instead defines it as "any damages recognized by the courts of this state ... [except for] direct or consequential economic loss under Title 62A RCW." The point of the vague definition was to allow case law to develop the definition of the term.
In the context of negligence cases, 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."
Examples of past cases where recovery sans physical injury was allowed include improper burial of an infant child, a misprinted phone number that led to harassing calls, and where a funeral home failed to provide ashes in a burial urn and the decedent's mother hand-sifted through the ashes, mistaking them for packing material.
Though those examples are far more extreme than spit on a burger, the court still felt that emotional turmoil and severe disgust could result from contaminated food and such damages are foreseeable. Recovery, therefore, is possible if the damages are proven.
The Ninth Circuit, taking into consideration the Washington Supreme Court's answer to the state law question, remanded the case to allow Bylsma to amend his complaint to plead facts sufficient for a claim under the WPLA.
That doesn't guarantee victory, however. We're still talking about spit on a burger. A police officer, who handles life and death situations, is still going to have to prove that he suffered severe emotional distress, nausea, and sleeplessness from a dirty Whopper.