On January 31, the Washington Supreme Court issued an opinion that allows a consumer to go to trial after he was allegedly served a hamburger with phlegm inside the bun. The court was asked the following question: Does the Washington Product Liability Act permit a person to file a lawsuit to recover emotional distress damages for being served contaminated food, even in the absence of physical injury? The court’s reply: Yes, if the emotional distress was a reasonable reaction and if the consumer exhibits objective symptoms of the emotional distress.

The consumer was a deputy sheriff who drove his marked police cruiser through the drive-thru of a Burger King in Vancouver, Washington. After ordering a Whopper with cheese, he left the drive-thru with an “uneasy feeling” and pulled his cruiser into a parking lot down the street. When he lifted the top bun of the Whopper, he found what appeared to be a glob of spit on the meat patty. DNA testing later confirmed that the saliva belonged to an employee at the Burger King. The officer filed a lawsuit, asserting product liability and negligence claims against Burger King’s corporate entity and the franchisee, and claimed to suffer ongoing emotional distress including vomiting, nausea, food aversion and sleeplessness. The judge initially dismissed the lawsuit, finding that Washington’s product liability law did not allow for recovery of emotional distress damages only. But the consumer appealed, leading to the certified question answered by the Washington Supreme Court.

This decision has a far reaching effect for restaurateurs and food manufacturers in the state of Washington, and perhaps beyond. By answering the question in the affirmative, a whole new class of potential plaintiffs has been provided with the opportunity to assert emotional distress claims against food providers and producers, even in the absence of physical injuries, reflecting a change in the uniform products liability laws used in many states. As the court wrote, “[c]ommon sense tells us that food consumption is a personal matter and contaminated food is closely associated with disgust and other kinds of emotional turmoil. Thus, when a food manufacturer serves a contaminated food product, [it is foreseeable] that the individual will suffer emotional distress.”

The case is Bylsma v. Burger King Co., et al. and the Washington Supreme Court’s opinion can be found at www.courts.wa.gov/opinions/pdf/869120.opn.pdf.