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9th Circuit sends Whopper spit burger case to state court

Washington Supreme Court asked to clarify if police officer can recover damages from receiving a hamburger covered in spit

Apparently Sheriff’s Deputy Edward Bylsma doesn’t enjoy the same type of quality service at his local Burger King that Police Chief Clancy Wiggum does at the Springfield Krusty Burger.

The 9th Circuit yesterday asked the Washington Supreme Court to clarify whether state law will allow Bylsma to recover damages for emotional harm when he received a Whopper covered in spit.

The story began in March 2009 when the Clark County officer drove his police cruiser through the Burger King drive-thru in Vancouver, Wash. Bylsma was wary of the employees serving him, suspecting they may have done something to his food. Upon later unwrapping his Whopper, he noticed a wad of spit on the burger patty. But while he touched the spit, he did not consume the burger, which is the crux of the ongoing battle.

DNA testing eventually revealed the spit belonged to one of the Burger King employees. The employee pleaded guilty to assault and was handed a 90-day jail sentence.

Byslma then sued Burger King and restaurant operator Kaizen Restaurants Inc. for product liability and negligence, alleging he suffered emotional trauma from the incident. He claimed the experience caused him to suffer vomiting, nausea, food anxiety and insomnia that required professional treatment.

At trial, the judge ruled in Burger King’s favor on the court filings alone, stating that the state’s product liability law does not allow damages for mental distress from a contaminated product that caused no physical injury.

On appeal, the 9th Circuit, however, ruled that the law wasn’t clear. Because of the uncertainty of the law, a three-judge panel decided to defer the case to the Washington Supreme Court.

“In light of our foregoing discussion, we respectfully certify to the Washington Supreme Court the following question: Does the Washington Product Liability Act permit 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?” the panel wrote.

For more background and analysis, read Reuters.

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