It’s a Whopper of a Case: Washington Supreme Court “Supersizes” Product Liability Statute

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Following Burger King's alleged service of a "spit burger," a plaintiff filed a product liability suit alleging emotional distress damages.  See Certification from the United States Court of Appeals for the Ninth Circuit in Edward J. Bylsma v. Burger King, Supreme Court of Washington No. 86912-0 en banc (January 31, 2013).  In a certified question, the Ninth Circuit Court of Appeals asked the Washington Supreme Court to determine whether the Washington Product Liability Act (WPLA) permits relief for emotional distress damages, in the absence of physical injury.

 

The plaintiff, a sheriff's deputy, filed a product liability suit, alleging that he ordered a Whopper with cheese at a Burger King drive-thru.  After receiving his order but before consuming any food, the plaintiff had an "uneasy feeling."  He lifted up the bun and observed a "slimy, clear and white phlegm glob" on the Whopper.  DNA testing determined that the glob was a Burger King employee's saliva.  The plaintiff alleged that the incident caused ongoing emotional distress, resulting in vomiting, nausea, food anxiety and sleeplessness.

 

The touchstone of any WPLA analysis is whether a product is "reasonably safe."  RCW 7.72.030.  WPLA provides relief "for harm caused by the manufacture, production, making, construction, fabrication, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging, store or labeling of" a product.  RCW 7.72.010(4).  Product liability cases typically involve "injuries caused by the product to the person or property of the claimant."  Washington State Physicians Insurance Exchange & Ass'n v. Fisons Corp., 122 Wash.2d 299, 858 P.2d 1054 (1993).

 

Before Bylsma, no Washington case addressed the efficacy of negligent infliction of emotional distress claims under WPLA. Relying upon cases involving emotional distress damages in negligence cases, the Washington Supreme Court held that “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 manifested by objective symptomology.”

 

In reaching its decision, the court noted that it has permitted emotional distress damages in the absence of physical injury where undertakers improperly buried an infant, where a plaintiff’s phone number was inadvertently printed on sales slips causing the plaintiff to be harassed by phone calls, and where a funeral home failed to place ashes in a burial urn and the decedent’s mother sifted through the ashes believing them to be packing material.  The court reasoned that, although none of the cases involved contaminated food products, they were sufficiently similar to the case at bar because each concerned “emotionally laden personal interests, and emotional distress was an expected result of the objectionable conduct in each case.”  The court concluded that, when a food manufacturer serves contaminated food products, emotional distress damages are foreseeable because “common sense” indicates that food consumption is a personal matter.

 

The court’s language suggests that liability may inure for the manufacturer of any product that offends one’s person.  While the decision refers only to contaminated food products, the Washington Supreme Court may have opened the door to an advent of product liability claims for other products. Following the Byslma decision, the matter will return to the Ninth Circuit.