Food And Feelings
5:25 pm
Thu January 31, 2013

Washington High Court Finds Spit-Covered Burger Could Cause Emotional Distress

“Under Washington law, is a consumer entitled to emotional distress damages when a fast-food employee spits in his or her hamburger even though the consumer did not eat the hamburger?” The Washington Supreme Court said Thursday that the answer may be yes.

Clark County Deputy Sheriff Edward Bylsma sued Burger King Corp. and the owners of a Vancouver, Washington, franchise after he was served a suspicious Whopper in 2009. Bylsma discovered what the court refers to as “a glob of spit” under the bun. The spit was DNA-tested and traced to an employee who pleaded guilty to felony assault and was sentenced to 90 days in jail. The deputy is now suing in federal court for damages related to ongoing emotional distress from the incident.

The federal court asked the Washington Supreme Court to weigh in on whether Washington law compensates people for emotional distress without a physical injury. In its answer to the federal question, a majority on the Washington Supreme Court has determined that state law would provide such damages if Bylsma’s distress is reasonable and manifested by physical symptoms. The justices say it’s foreseeable someone could suffer emotional distress after being served contaminated food. Bylsma claims to suffer from nausea, vomiting, food aversion and sleeplessness.

In their analysis the justices refer to previous cases in which plaintiffs were awarded damages for emotional distress without suffering physical injury. They include a case in which a funeral home failed to provide ashes in a burial urn and the deceased person’s mother sifted through them after mistaking them for packing material. In another case a business paid damages after inadvertently printing a plaintiff’s phone number on its sales slip, causing the plaintiff to be harassed by telephone calls. The court did not cite any prior cases related to contaminated food. 

Three justices dissented, saying Washington law does not allow for damages in these circumstances. They said Bylsma’s case is more like that of a bystander who witnesses something upsetting, since he claims to suffer trauma “from the sight of a contaminated burger he did not even eat.” They said extending the rights of plaintiffs in these situations could lead to endless litigation.

Barry Goehler is an attorney representing Burger King and the franchise owner, Oregon-based Kaizen Restaurants. He plans to file a motion for the Washington Supreme Court to reconsider its findings. Unless that motion is granted, the majority opinion revives Bylsma’s chances of returning to US District Court to pursue his claims.

Washington Supreme Court’s Majority Opinion in Bylsma v. Burger King Corp.

And here's the Court's dissenting opinion.