Product Liability Law

Can Cop Get Emotional Distress Damages for Spit on Burger? 9th Circuit Seeks Wash. Opinion


A federal appeals court has asked the Washington Supreme Court for its opinion on whether state product liability law allows a police officer to recover emotional distress damages caused when he found a glob of spit on a Whopper.

Sheriff’s Deputy Edward Bylsma of Clark County claims he checked out the burger after getting an “uneasy feeling” about two employees who served him at a Burger King drive-up window in Vancouver, Wash., report Thomson Reuters News & Insight and SeattlePI.com. He noticed the sandwich was topped with a “slimy, clear and white phlegm glob,” according to Bylsma’s allegations.

A DNA test identified a Burger King employee as the culprit. He pleaded guilty to assault and was sentenced to 90 days in jail.

Bylsma touched the glob on his burger, but he didn’t eat it and didn’t suffer physical injury. He did claim, however, that the emotional trauma caused vomiting, nausea, food anxiety and insomnia.

The San Francisco-based 9th U.S. Circuit Court of Appeals sought clarification of the law in an order (PDF) issued on Wednesday. The case is Bylsma v. Burger King Corp.

Stanford law professor Robert Rabin told Reuters that most states don’t allow plaintiffs to recover damages for emotional distress absent physical injury, unless the plaintiff was in immediate physical danger.

Hat tip to How Appealing.

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