Sherriff Awarded Right to Sue in ‘Phlegm Burger’ Case

Can damages arise out of contaminated foods that were never consumed?  The Washington Supreme Court split 6-3 over that issue on January 31st, with the majority ruling that the receiver of the food does indeed have a right to sue.

            In the spring of 2009, Sherriff Edward J. Bylsma drove his police cruiser through a Burger King drive-thru.  He drove away after receiving his whopper, but says he had an uneasy feeling that caused him to check under the bun before digging in.  What he found there confirmed his suspicions: an employee had spat onto the patty before handing the burger over to Bylsma.

DNA testing pinpointed the culprit, who has been sentenced to 90 days for felony assault.  The court then had to decide if Bylsma had the right to sue for damages, given that he never actually consumed the burger.  Bylsma’s suit against Burger King claims that he suffers from “ongoing emotional distress, including vomiting, nausea, food aversion, and sleeplessness” and that he has consulted a “mental health professional.”

Bylsma is seeking monetary damages to compensate him for his mental distress.  The court grappled with the issue of awarding the right to seek damages for emotional distress absent physical injury – something tort law has traditionally been slow to recognize.  The majority decision turned on the interpretation of the word ‘harm’ in the Washington Product Liability Act (WLPA).

Justice Gonzalez, for the majority, wrote that “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.”  He went on to conclude that emotional distress has been recognized by Washington courts in the past and should be recognized under the WLPA, as well.

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