Emotional Distress Claims Allowed for Uneaten Contaminated Food in Washington
Answering a question certified by the Ninth Circuit Court of Appeals, a divided Washington Supreme Court has determined that a deputy sheriff who was served, but did not consume, a Burger King hamburger contaminated with an employee’s spit, may recover under state product liability law for emotional distress, “but only if the emotional distress is a reasonable reaction and manifest by objective symptomatology.” In re Bylsma v. Burger King Corp., No. 86912-0 (Wash., decided January 31, 2013). The deputy had alleged ongoing emotional distress, including vomiting, nausea, food aversion, and sleeplessness, symptoms that purportedly led him to seek treatment from a mental health professional.
So ruling on a matter of first impression, the court majority agreed with the deputy sheriff that the Washington Product Liability Act allows recovery for emotional distress damages absent physical injury. The federal district court which had considered the deputy’s claim, dismissed it on the ground that state law did not allow such recovery. According to Washington’s high court, the legislature did not adopt the Model Uniform Product Liability Act’s definition of “harm,” intending instead for the term to be continually developed through case law. Citing cases decided since 1907 allowing such recovery in the negligence context and noting that none of them involved contaminated food, the court states, “each concerned emotionally laden personal interests, and emotional distress was an expected result of the objectionable conduct in each case. 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.”
Three dissenting justices would have found no right of recovery under the law, asserting that emotional distress damages in the absence of physical injury are not allowed. In this regard, the dissenters state after reviewing analogous case law, “There is simply no logical reason, however, to limit recovery for emotional distress in [negligent infliction of emotional distress] cases where a family member is traumatized by seeing or learning of the death of a loved one, but not in Deputy Bylsma’s case, where he claims trauma from the sight of a contaminated burger he did not even eat.” They contend that this “falls short of ‘“an especially horrendous event” involving conditions analogous to seeing a “crushed body . . . or hearing cries of pain [or] dying words.”’” They also suggest that allowing such recovery would lead to the imposition of increased costs on consumers.
