WA Court Finds Spit-Covered Burger Could Produce “Emotional Distress”

By Amy Radil

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 on Thursday said the answer is possibly “yes.”

Clark County Deputy Sheriff Edward Bylsma sued Burger King 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. A majority 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 forseeable someone could suffer emotional distress after being served contaminated food.

Bylsma claims to suffer from nausea, vomiting, food aversion and sleeplessness.

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 burger he saw, but didn’t even eat. They say extending the rights of plaintiffs in these situations could lead to endless litigation.

But the majority opinion revives Bylsma’s chances of returning to U.S. District Court to pursue his claims.

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