Wednesday, February 6, 2013

Washington state Supreme Court recognizes cause of action for emotional distress absent physical injury in a products liability case

A week ago, the Supreme Court of the state of Washington decided for the first time that a plaintiff could recover for pure emotional distress as part of a product liability claim based on strict liability.  The case is called Bylsma v. Burger King Corp..

The claim was brought by a plaintiff who alleged he found a glob of phlegm/spit on a burger he bought at Burger King.  (It was later determined the spit was deposited there by a BK employee.)  The plaintiff discovered the spit on his burger before he bit into it, but claiming to have suffered emotional distress (and physical manifestations) as a result, he sued in federal court.  The trial court dismissed the claim concluding that Washington law did not recognize a cause of action for emotional distress absent a physical injury.  (It would recognize a cause of action for emotional distress suffered as a result of a physical injury, but not a cause of action for emotional distress absent a physical injury.)

The plaintiff appealed to the Court of Appeals and the Court then certified the question to the Washington Supreme Court which disagreed with the interpretation of the law by the federal trial court.

As explained by the court, the Washington Product Liability Act (WPLA) is mostly a copy of the Model Uniform Product Liability Act (UPLA), except that the WPLA did not adopt the UPLA's definition of "harm."  In its definition of harm, the UPLA includes emotional distress only if it is the result of a physical injury.  The common law in the state of Washington, however, recognizes claims for emotional distress absent physical injury as long as there is proof that the emotional distress manifests itself physically.

Given that the plaintiff in the case did allege to be suffering from physical manifestations of the alleged emotional distress, the court found his claim should be allowed to go forward.  As the court puts it in its conclusion:  "The WPLA 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, if the emotional distress is a reasonable response and manifest by objective symptomatology."

This, of course, does not mean that the plaintiff wins the case, though.  It only means that he has a right to seek recovery.  Whether he will get to recover (and how much) will depend on many additional factors.  

For a comment on the case go to Abnormal Use blog.

UPDATE 2/13/13:  In light of the Washington Supreme Court’s decision, the federal court of appeals concluded that the plaintiff must be given another opportunity to amend his complaint, and remanded to the district court to determine whether the plaintiff after amendment has pled the necessary facts to support his emotional damages claim.  Bloomberg news has a report here and the actual opinion is available here.


Anonymous said...

So at this point, would he be arguing that the company's conduct placed him within the zone of danger and that his emotional distress was a reasonably foreseeable consequence of the risk created by that negligent conduct?

Professor Alberto Bernabe said...

Not quite, because the claim is not based on negligence but on strict liability. The key is the condition of the product itself. The plaintiff will argue that the product was "defective" and that emotional distress is a foreseeable consequence of the risk created by the defect.