Jan 11 (Reuters) - An appeals court asked a state supreme
court for help in deciding whether to revive a case by a police
officer against Burger King over a Whopper he says a worker
The U.S. Court of Appeals for the 9th Circuit on Wednesday
asked the Washington Supreme Court to clarify whether
Washington law would allow the officer to recover damages for
emotional harm when he only touched, but did not eat, the
Clark County Sheriff's Deputy Edward Bylsma said in the
lawsuit that he drove his police cruiser through a Burger King
drive-thru in Vancouver, Washington, in March 2009. He had
"uneasy feeling" about the two employees that served him, the
complaint said. When Bylsma later examined the burger, he
noticed a large glob of spit on the meat patty. He touched the
substance, but did not eat the burger.
DNA testing revealed the saliva belonged to one of the
Burger King employees, who pled guilty to assault and was
sentenced to 90 days in jail, the court opinion said.
Bylsma sued Burger King and restaurant operator Kaizen
Restaurants Inc under products liability and negligence laws.
He said he suffered ongoing emotional trauma from the incident,
including vomiting, nausea, food anxiety and insomnia that
required professional help.
The trial judge ruled in Burger King's favor on the
parties' court filings alone, concluding that Washington's
product liability law does not allow damages for mental
distress from a contaminated product that caused no physical
injury. But the 9th Circuit found the law wasn't that clear.
The panel cited a negligence case where a Washington court
found a woman could sue for emotional harm after a funeral home
sent her son's cremated remains to her in a plastic bag instead
of the agreed-upon urn. She claimed emotional distress from
touching the bones and ashes she mistook for packaging
But the 9th Circuit panel found no product liability case
allowing damages for emotional harm alone.
"Given the uncertainty of law in this area, we believe it
is appropriate to defer to the Washington Supreme Court on this
important issue of state law," the three-judge panel wrote.
Robert Rabin, a torts professor at Stanford Law School,
said most states do not allow recovery for emotional distress
without any physical injury, unless the person making the claim
was in immediate physical danger.
Kaizen Restaurants Inc did not immediately respond to a
request for comment. Burger King declined to comment on
Lawyers for Bylsma were not immediately available for
The case is Bylsma v. Burger King Corp et al, U.S. Court of
Appeals for the 9th Circuit, No. 10-36125.
For Bylsma: Darrin Bailey, Anne Bremner, James Yand and
Danford Grant of Stafford Frey Cooper.
For Burger King and Kaizen Restaurants: Gary Bullock of
Gary M. Bullock and Associates; Barry Goehler of the Law Office
of Barry J. Goehler.
(Reporting by Terry Baynes)
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