Bylsma v. Burger King Corp.

The plaintiff is entitled to amend his complaint in light of a Washington Supreme Court decision issued in response to the certified question of whether “the Washington Product Liability Act permit[s] 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 product.”

Edward J. Bylsma filed suit against Burger King Corp. and Kaizen Restaurants, Inc. (collectively, “Burger King”) for product liability, negligence, and vicarious liability. The suit arose out of an incident at a Burger King restaurant in Vancouver, Washington, in which two employees served Bylsma a hamburger contaminated by a glob of saliva. The district court dismissed Bylsma’s complaint on the basis that “the Washington Product Liability Act (‘WPLA’) does not permit relief for emotional distress damages, in the absence of physical injury to the plaintiff purchaser, caused by being served and touching, but not consuming, a contaminated food product.” On appeal, the Ninth Circuit considered whether, absent physical injury, the WPLA permits recovery of emotional damages. The Court issued an order certifying the question to the Washington Supreme Court, which concluded that such relief was available so long as “the emotional distress is a reasonable reaction and manifest by objective symptomatology.” In light of that decision, the panel concluded that Bylsma was entitled to an opportunity to amend his complaint. REVERSED and REMANDED.