You’ve heard about this case.  It’s the story of the cop whose burger was spat on in Vancouver, Washington. 

The Washington Supreme Court’s decision in Bylsma v. Burger King Corp., which covers a tiny but critical part of the policeman’s lawsuit, has gotten a lot of publicity.  Let me give you three quick points that most of the reporting misses:

  • The guy who spat on the burger pled guilty to assault and was sentenced to 90 days in jail, was fired, and is not a defendant in the lawsuit.
  • The lawsuit, as it currently stands, has nothing to do with respondeat superior or whether the restaurant was negligent in hiring the guy who spat.
  • The case was decided under Washington law, and the real impact will be under Washington’s Products Liability Act, which gives restaurants like the Burger King franchise here, and Burger King itself, few defenses to this action. 

Much more after the jump. 

A quick review of the facts.  On March 29, 2009, the plaintiff, a Vancouver, Washington unifomed officer, took his marked patrol car through the drive-through of the Burger King owned by one defendant and franchised by Burger King Corp., the other defendant.  He bought a Whopper with cheese and drove away, but for some reason he had, per the complaint, "an uneasy feeling."  He pulled into a parking lot down the street, opened the wrapping, lifted the bun, and saw the notorious spit.

There are plenty of lawsuits claiming that food was intentionally tainted by spit and sometimes worse.  But there are two differences between Officer Bylsma’s case and most of the others.  First, he had the spit tested for DNA and then traced the DNA to a specific employee at the restaurant.  I don’t think most individuals have either access to a DNA lab nor will law enforcement ordinarily issue the kind of warrant needed to obtain DNA samples for a simple alleged misdemeanor.  And, second, Officer Bylsma did not taste the burger, so he cannot claim any form of physical harm from ingesting it. 

All he alleges is "emotional distress, including vomiting, nausea, food aversion, and sleeplessness".  The question is whether this is sufficient to give him a remedy at law.  And it’s here where the peculiarity of Washington’s Product Liability Act takes over.  This law was enacted in 1981 to "provide a single cause of action for ‘harm caused by the manufacture, production, making, construction, fabrication, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging, storage or labeling of [a] product.’"  It provides for liability on a negligence basis for some defects and provides for strict liability "if the claimant’s harm was proximately caused by the fact that the product was not reasonably safe in construction or not reasonably safe because it did not conform to the manufacturer’s express warranty or to the implied warranties under" Article 2 of the Uniform Commercial Code.

RCW 7.72.030(2)(a) is the key to plaintiff’s case:

A product is not reasonably safe in construction if, when the product left the control of the manufacturer, the product deviated in some material way from the design specifications or performance standards of the manufacturer, or deviated in some material way from otherwise identical units of the same product line.

Here, the restaurant itself is the "manufacturer."  So, to follow the language applied to this case, when the burger left the restaurant, it deviated in a material way from the design specifications or performance standards of the restaurant, because it included a glob of spit.

How does Burger King get sued?  Under the Products Liability Act, a product seller who is not the manufacturer is liable in a number of different cases, one of which is "The product was marketed under a trade name or brand name of the product seller."  So Burger King is is in the same boat as its franchisee.

Is there any defense?  The federal magistrate in Oregon, applying Washington law, believed that there was a complete defense.  Three dissenting justices of the Washngton Supreme Court agreed. The defense hinged on the definition of the word "harm" in the Products Liability Act.  The definition, as the court recognized, is circular:  " ‘Harm’ includes any damages recognized by the courts of this state."  In other words, the Legislature expressly allowed for the creation of judge-made law here. 

Note that this definition differs from the Model Uniform Product Liability Act, upon which most of the Product Liability Act was based.  Its definition of "harm" is "The UPLA defines  "mental anguish or emotional harm" only if "attendant to . . . personal physical injuries" or "caused by . . . being placed in direct personal physical danger and manifested by a substantial objective symptom."  Under the model act, Officer Bylsma would have lost his case.  But the Washington Legislature wanted its courts to define harm over time.  And this they did.

Also note that this case came to the Washington Supreme Court on a certified question from the Ninth Circuit Court of Appeals, which was reviewing the magistrate’s dismissal of the case, which had been agreed to by the district court judge in Oregon.  So the Washington court was answering a hypothetical question on a federal case in another state, but the implications, because of Washington’s peculiar statute, apply, other than to Officer Byslma’s case, initially only in Washington. 

The question asked was whether the Products Liability Law "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."  What the court held was that the Products Liability Law "permits relief in such circumstances, but only if the emotional distress is a reasonable reaction and manifest by objective symptomatology."  But the court answers the first question itself, apparently as a matter of law:  "Thus, when a food manufacturer serves a contaminated food product, it is well within the scope of foreseeable harmful consequences that the individual served will suffer emotional distress."  So the only real defense left to the restaurant and franchisor is "objective symptomology."  A good trial lawyer will consider that a speed bump, and not a large one.

The court engaged in the fiction that it was just finding the law, not making it.  It did not–and was probably not briefed to–consider the implications of applying strict liability in this context to the food industry.  But those implications can be large.  When there is a need for a recall, ordinarily retailers are happy when customers return the potentially contaminated food unused and unopen for a refund.  Suddenly, in Washington, those customers are potential plaintiffs ready to complain of how their lives are ruined because they can’t walk down the produce aisle or past the meat counter without getting the heebie-jeebies over the food they returned.  Every hair found on a salad may need to be handled not by an adjustment to the bill and a free drink coupon, but also a release.  It is hard to see how the cost-benefit analysis really favors this tort.   Short of the Washington legislature acting, however, the Washington Supreme Court has had the final word on this issue.