Background

• Bylsma, a Clark County deputy, was served a Burger King burger contaminated with saliva.
• DNA testing identified the saliva as from an employee working at the time.
• Bylsma sued Burger King and Kaizen Restaurants under Washington's product liability act (WPLA) for emotional distress without asserting physical injury.
• The district court held Washington law applies and that WPLA does not allow emotional distress damages absent physical injury.
• The Ninth Circuit certified whether WPLA permits emotional distress damages to a direct purchaser who touched but did not consume a contaminated product.
• The Washington Supreme Court answers affirmatively, allowing such damages if reasonably caused and manifested by objective symptoms.

Issues

Key Cases Cited

• Fisons Corp., 122 Wn.2d 299 (Wash. 1993) (emotional distress not recoverable under WPLA in absence of physical injury)
• Hiltbruner, 134 Wn.2d 761 (Wash. 1998) (emotional distress damages limited to statutory context or intentional conduct)
• Gain v. Carroll Mill Co., 114 Wn.2d 254 (Wash. 1990) (limits on NIED to prevent unlimited liability)
• Hunsley v. Giard, 87 Wn.2d 424 (Wash. 1976) (emotional distress recovery requires foreseeability, reasonable reaction, and objective symptoms)
• Colbert v. Moomba Sports, Inc., 163 Wn.2d 43 (Wash. 2008) (limits on NIED recovery for bystander scenarios; need for direct sensory experience)
• Corrigal v. Ball & Dodd Funeral Home, Inc., 89 Wn.2d 959 (Wash. 1978) (early NIED recognition in certain contexts; later narrowed)
• Wright v. Beardsley, 46 Wash. 16 (Wash. 1907) (early emotional distress recovery without physical injury in specific contexts)
• Brillhardt v. Ben Tipp, Inc., 48 Wn.2d 722 (Wash. 1956) (recovery for annoyance/inconvenience prior to NIED limits)