A Clark County Deputy Sheriff drove his marked police cruiser through the drive-thru of a Burger King in Vancouver, Washington. The deputy ordered a Whopper with cheese and drove away with an uneasy feeling after receiving his burger.

He pulled into another parking lot down the street, lifted the top bun, and observed what appeared to be a glob of spit on the meat patty. He inserted his finger into the glob to confirm it was not fat.

Later DNA testing revealed the saliva belonged to one of the employees working at the time. The employee was charged and pleaded guilty to felony assault and was sentenced to 90 days in jail.

The Deputy sued Burger King, claiming he suffers from ongoing emotional distress, including vomiting, nausea, food aversion, and sleeplessness.

In a 6-3 decision the Washington State Supreme Court held the deputy could pursue a claim for emotional distress.[1]

Under Washington’s Product Liability Act a manufacturer of a product is strictly liable for harm proximately caused by the fact that [a] product was not reasonably safe in construction. The majority noted that Washington courts had  not previously addressed emotional distress damages absent physical injury in the context of a strict liability claim.

The majority looked by analogy to negligence cases. In negligence cases Washington law allows claims for emotional distress in the absence of physical injury only where emotional distress is (1) within the scope of foreseeable harm of the negligent conduct, (2) a reasonable reaction given the circumstances, and (3) manifested by objective symptoms. These requirements were developed to avoid “intolerable and interminable litigation.”

The majority held that these requirements were met.

The dissent concluded that the majority’s reliance on negligence cases is misplaced. The dissent pointed out that the statute is rooted in strict liability. Under prior Washington case law emotional distress damages are available for a statutory cause of action only if the statute so provides or if the statute requires intentional conduct to impose liability. The Washington Products Liability Act does neither.

Overturning an established case law rule in Washington requires a clear showing that an established rule is incorrect and harmful. According to the dissent, ensuring the financial compensation of people claiming emotional distress because they saw spit on their uneaten hamburgers is not a public policy priority.

Nevertheless, the majority 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 symptomatology.

Or, in plainer non-legalese – the deputy may pursue a lawsuit against Burger King because its employee spit in his burger – even though he never ate any of it.

Our law firm took no part in this litigation.  


[1] Bylsma v. Burger King, unpublished (No. 86912-0, filed January 31, 2013).