Sheriff’s deputy can sue over uneaten phlegm burger

Customers who receive tainted food can sue for emotional damages even if they do not eat it, Washington Supreme Court rules

Burger King Corp. promises that you can “Have it your way” at its restaurants. But that motto didn’t hold true for one sheriff’s deputy, who received a phlegm-filled burger at one of the chain’s Washington state locations.

Sheriff’s deputy Ed Bylsma was served the tainted burger at a Burger King drive-through in March 2009. Bylsma, who was in his police uniform, says that he became suspicious when the employee handing him the food would not make eye contact. Upon inspection, he found a thick glob of saliva on his meal.

Although Bylsma hadn’t taken a bite of the burger, he sued Burger King for product liability, negligence and vicarious liability. In his suit, Bylsma claimed that he has suffered “ongoing emotional trauma from the incident, including vomiting, nausea, food anxiety and sleeplessness and has sought treatment by a mental health professional.”

A district court initially ruled against the officer, holding that the Washington Product Liability Act (WPLA) does not provide for emotional distress damages unless a customer has actually eaten contaminated food. On appeal, however, the 9th Circuit said that the law was vague, and sent the case to the Washington Supreme Court to consider.

That court sided with the disgusted deputy, stating in its opinion: “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.”

In light of that decision, the 9th Circuit on Tuesday ruled in favor of Bylsma, allowing him to continue his quest for emotional damages at the district court level.

In case you’re wondering, the Burger King spitter was taken off the streets, at least temporarily: DNA testing matched the saliva on the burger to a restaurant employee, who pleaded guilty to third-degree assault against an officer and was sentenced to three months in prison. Another employee was also fired as a result of the incident.

Read more at the Wall Street Journal.

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Alanna Byrne

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