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Wash. court weighs in on spit burger case

Feb. 7, 2013 at 8:55 AM

OLYMPIA, Wash., Feb. 7 (UPI) -- A ruling by the Washington Supreme Court backs a police officer's contention he can sue for distress suffered after finding phlegm on his Burger King hamburger.

Clark County Deputy Sheriff Edward Bylsma said he drove his marked squad car through drive-through of one of the fast-food chain's restaurants in the Vancouver area in March 2009 and ordered a hamburger. He said when he removed the top bun he found a glob of spit, which DNA testing later confirmed matched the saliva of a Burger King employee.

Bylsma sued Burger King in U.S. District Court for negligence, product liability and vicarious liability, claiming the incident led him to become ill and lose sleep.

The judge dismissed the case and Bylsma appealed to the 9th U.S. Circuit Court of Appeals, which asked Washington's highest state court to weigh in on the applicable state law.

The state high court ruled 6-3 Jan. 31 that the Washington Product Liability Act does allow people to seek damages in such cases under certain circumstances, Courthouse News Service reported.

"Common sense tells us that food consumption is a personal matter, and contaminated food is closely associated with disgust and other kinds of emotional turmoil," state Supreme Court Justice Steven Gonzalez said. "Thus, when a food manufacturer served a contaminated food product, it is well within the scope of foreseeable harm consequences that the individual will suffer emotional damages."

The Seattle Post-Intelligencer reported the state high court's opinion doesn't resolve the issue but provides the federal appellate court guidance in its handling of the matter. The supreme court's decision could allow Bylsma's case to go forward, though it made clear a plaintiff must show any emotional distress is a "reasonable reaction" to what happened and can be measured, the online newspaper said.

The Post-Intelligencer said the Burger King employee, Gary Herb, was given a 90-day jail term after pleading guilty to a related assault charge.

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