Tainted Food Does Not Have to be Eaten to Cause Emotional Distress

Just because a customer notices food is tainted before taking a bite does not mean a lawsuit has been averted. According to a recent ruling from the Washington Supreme Court, the state’s product liability act allows a person to sue and claim emotional distress damages even if he or she never actually took a bite of the contaminated food.

The case is Bylsma v. Burger King Corp., No. 86912-0 (Wash., decided January 31, 2013), and involved a 2009 incident in which Edward Bylsma was served a contaminated Whopper while visiting a Burger King drive-thru. Bylsma reported getting an “uneasy feeling” after seeing his burger. He inspected the burger and saw what he thought to be a “glob of spit” on the patty. After additional inspection, he submitted the burger for DNA testing and it was eventually determined the saliva on his burger came from one of the employees who was working at Burger King when Bylsma placed his order. By the way, Bylsma is a Clark County deputy sheriff which likely enabled him to take a “CSI” approach to this case.

Although Bylsma never actually consumed the Whopper, he reported emotional distress and complained of numerous symptoms, including “vomiting, nausea, aversion to food, and sleeplessness.” Bylsma filed suit against Burger King for product liability, negligence and vicarious liability, claiming his symptoms “led him to seek treatment from a mental health professional.”

Because Bylsma never actually ingested the contaminated food, the federal district court dismissed his lawsuit. Bylsma appealed to the United States Court of Appeals for the Ninth Circuit.     The Ninth Circuit court found the law to be vague and certified (punted) to the Washington Supreme Court to answer the question of whether the Washington Product Liability Act (“WPLA”) allows recovery for emotional distress damages even when there has been no physical injury. In its ruling, the Washington Supreme Court determined that Bylsma does indeed have grounds to pursue his lawsuit, ruling that it is foreseeable that when a food manufacturer serves a contaminated food product, the customer may suffer emotional distress:

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.

Now, Bylsma is free to proceed with his lawsuit at the federal district court level.