Emotional Distress Claim for Tainted but Uneaten Food Allowed by Court

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file2341245785293.jpgThe Ninth Circuit Court of Appeals recently certified a question to the Washington Supreme Court, asking whether the state’s product liability statute would allow a claim for emotional distress for “contaminated” food that the plaintiff did not eat. In re Bylsma v. Burger King Corp., No. 86912-0, slip op. at 2 (Wash., Jan. 31, 2013). The state court held that the statute allows such a claim, provided the distress is a reasonable reaction and has some physical manifestation. It is not clear if Connecticut courts have addressed this particular question, but they have addressed the question of emotional distress damages in the absence of physical harm, and have generally not allowed them.

The plaintiff, a deputy sheriff in Clark County, Washington, ordered a Whopper with cheese at a Burger King drive-thru on March 29, 2009. He alleged feeling “uneasy” after receiving the burger. Id. He inspected it, and found what appeared to be a “glob of spit” on the patty. Id. He touched it to make sure that it was not fat, and then submitted it for DNA testing. The test linked the spit to an employee who was working at the time the plaintiff placed his order.

His lawsuit, filed in federal court, asserted causes of action for negligence, products liability, and vicarious liability. Although he did not eat the tainted burger, he claimed emotional distress with symptoms including “vomiting, nausea, aversion to food, and sleeplessness,” id., requiring mental health treatment. A magistrate judge found that Washington law applied to the lawsuit, and that state law does not allow recovery for emotional distress without physical injury. The district judge agreed, and the plaintiff appealed to the Ninth Circuit.