Ninth Circuit Considers Whether There Can Be Emotional Distress Damages From Touching a Contaminated Food Product that Caused No Physical Injury

Thompson Reuters reports  a strange recent case where the Ninth Circuit asked the Washington Supreme Court to clarify whether, under Washington product liability laws, a police officer could recover damages for emotional harm when he only touched, but did not eat, a contaminated hamburger.

In Bylsma v. Burger King Corp, Sheriff Deputy Edward Bylsma drove his police vehicle through a Burger King drive-thru in Vancouver, Washington when he had an “uneasy feeling” about the two employees who had just served him. Bylsma later examined the burger and noticed a large glob of spit on the meat patty. He touched the spit-covered burger, but did not eat it.DNA testing later revealed that the spit originated from one of the Burger King employees. That employee later pleaded guilty to assault and was sentenced to 90 days in jail.

Bylsma subsequently sued Burger King and restaurant operator Kaizen Restaurants in Oregon federal court raising products liability and negligence claims. The District Court determined that Washington law applied. Bylsma alleged that he suffered continuing mental distress from the hamburger incident, which caused vomiting, nausea, food anxiety and insomnia. He further claimed that his mental distress required professional help.

Burger King moved to dismiss Bylsma’s claims on the grounds that under the Washington Product Liability Act (WPLA), a plaintiff cannot be granted emotional distress damages in the absence of physical injury caused by the product. The trial court agreed and Bylsma appealed. He agreed that both Washington law applied and the WPLA preempted all other causes of action, but disagreed with the assertion that the WPLA does not allow for recovery for emotional distress damages in the absence of physical injury.

The Ninth Circuit panel noted that there was Washington case law that held that a plaintiff could sue for emotional harm caused by a defendant’s negligence even when no physical injury occurred. For instance, in one case, a Washington court found that a woman could sue for emotional harm after a funeral home sent her son’s cremated remains to her in a plastic bag – rather than an agreed upon urn – and the woman touched the bones and ashes. However, the panel noted that there was no product liability case law allowing damages for emotional harm alone.

As a result, the Ninth Circuit decided to certify the question to the Washington Supreme Court of whether the WLPA permits relief for emotional distress damages in the absence of physical injury caused by touching contaminated food. In the meantime, the panel stayed further proceedings in the case until the Washington Supreme Court decided whether it would accept review.