OLYMPIA, Wash. (Legal Newsline) - The Washington State Supreme Court says a deputy sheriff who alleges he was served a burger with phlegm inside the bun can proceed in his lawsuit against a Burger King even though he did not consume the burger and did not have physical injury.

The Court voted 6-3 on how to answer the certified question submitted by the United States Court of Appeals for the Ninth Circuit. The opinion was filed Jan. 31.

The majority opinion was written by Justice Steven C. Gonzalez and a dissent was written by Justice James M. Johnson. Gonzalez was joined by Justices Charles W. Johnson, Mary E. Fairhurst, Debra L. Stephens, Charles K. Wiggins, and Tom Chambers. Justice James Johnson was joined by Chief Justice Barbara A. Madsen and Justice Susan Owens in the dissent.

"On March 29, 2009, Clark County Deputy Sheriff Edward J. Bylsma drove his marked police cruiser through the drive-thru of a Burger King that is operated by Kaizen Restaurants in Vancouver, Washington. Bylsma ordered a Whopper with cheese and drove away with an uneasy feeling after receiving his burger," the opinion states.

"He pulled into another parking lot down the street, lifted the top bun, and observed what appeared to be a glob of spit on the meat patty. He inserted his finger into the glob to confirm it was not fat. Later DNA (deoxyribonucleic) testing revealed the saliva belonged to one of the employees working at the time."

Bylsma filed suit against Burger King and Kaizen in the U.S. District Court for the District of Oregon claiming that he suffers "ongoing emotional distress, including vomiting, nausea, food aversion, and sleeplessness. He has sought treatment from a mental health professional.

He raised claims under Oregon law for product liability, negligence, and vicarious liability. Burger King moved for judgment on the pleadings and the magistrate recommended the motion be granted.

The magistrate found that Washington law applies and the Washington Product Liability Act preempts all other causes of action. Additionally, the Magistrate found that the WPLA does not allow for recovery of emotional distress damages caused to a purchaser in the absence of physical injury. The district judge adopted the magistrate's findings and dismissed the case.

Bylsma appealed to the Ninth Circuit arguing that emotional distress damages absent physical injury are recoverable under the WPLA.

"Because this issue is central to the outcome of the case and its resolution may have far-reaching effect in Washington, the Ninth Circuit seeks our guidance," Gonzalez wrote.

"In a certified question, the Ninth Circuit Court of Appeals asks us to determine whether the WPLA permits relief for emotional distress damages, in the absence of physical injury, caused to the direct purchaser by being served and touching, but not consuming, a contaminated food product.

"Although much of the WPLA was taken from the Model Uniform Product Liability Act (UPLA), the legislature chose not to use the UPLA's definition of 'harm' ... The legislature intended to allow for the 'continuing development of the term through case law.'

"We have not addressed emotional distress damages absent physical injury in the context of a strict liability claim. In negligence cases, however, we allow 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.

"Common 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 well within the scope of foreseeable harmful consequences that the individual served will suffer emotional distress.

"The courts of this state recognize damages for such emotional distress, and thus, such damages, if proved, are recoverable under the WPLA. We answer the question in the affirmative.

"The WPLA permits relief for emotional distress damages, in the absence of physical injury, caused to the direct purchaser by being served and touching, but not consuming, a contaminated food product, if the emotional distress is a reasonable response and manifest by objective symptomatology," concludes Gonzalez.

"Deputy Sheriff Edward J. Bylsma was served a burger contaminated with spittle. Fortunately, Deputy Bylsma discovered the spittle before consuming the burger. For this, the responsible Burger King employee was charged and pleaded guilty to felony assault and was sentenced to 90 days in jail," write J.M. Johnson in the dissent.

"Now, Deputy Bylsma claims he was so traumatized by the spittle (which he did not consume) that he suffers from ongoing emotional distress, manifested by vomiting, nausea, food aversion, and sleeplessness. Deputy Bylsma sued Burger King and the restaurant operator, Kaisen Restaurants, to compensate him for this alleged distress.

"Because Washington law proscribes relief for emotional distress damages in the absence of physical injury when a claimant brings a products liability claim, I dissent.

"The answer to the Ninth Circuit Court of Appeals' certified question should be "no"; the WPLA does not permit relief for emotional distress damages, in the absence of physical injury, caused to a purchaser who is served but does not consume a contaminated food product.

Under Hiltbruner, emotional distress damages are available for a statutory cause of action only if the statute so provides or if the statute requires intentional conduct to impose liability.

"The WPLA's definition of "harm" references case law. The only case on point, Fisons, instructs emotional distress damages are not recoverable under the WPLA. But, even if the WPLA were silent, emotional distress damages are not available under Hiltbruner because the WPLA imposes liability without fault.

"Furthermore, looking to NIED (Negligent Infliction of Emotional Distress) cases is inappropriate because a WPLA claim does not require proof of negligence. Yet, even if we were to do so, the analysis would not instruct that emotional damages are available here.

"NIED is a judicially created and carefully limited cause of action that allows recovery for a plaintiff who experiences conditions that are comparable to witnessing a love one's accidental death or serious injury.

"The sight of a contaminated burger comes nowhere near this threshold. Emotional distress damages are not recognized by Washington law under these circumstances. I respectfully dissent."

The case will now go back to the district court for proceedings consistent with this opinion.

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