Washington Product Liability Act: Washington Supreme Court permits recovery for emotional distress in the absence of physical harm caused by purchaser's use of the product
February 7th, 2013
On January 31, 2013, the Supreme Court decided Bylsma v. Burger King Corp., --- P.3d ---, 2013 WL 3635919 (Wash.). Deputy Sheriff Ed Bylsma ordered lunch at a Burger King drive-in window. He “had an uneasy feeling” as he pulled away, so he carefully inspected his order and found that he had been “served a burger with phlegm inside the bun.” Bylsma’s lips never touched the offending Whopper, but he was not amused – and not about to go gently into that cold, dark night.
Bylsma first had DNA testing done to identify the prankster, who was convicted of felony assault and sentenced to 90 days in jail. He then sued Burger King and the franchise owner in the federal District Court in Oregon, claiming “ongoing emotional distress, manifested by vomiting, nausea, food aversion and sleeplessness” caused by being served and touching -- but not consuming -- a contaminated and defective food product.
The defendants moved for judgment on the pleadings under the Washington Product Liability Act, ch. 7.72 RCW (“WPLA”), arguing that the WPLA preempts all other causes of action arising out of product defects, and that the WPLA does not create a cause of action for a product purchaser’s alleged emotional distress, absent physical injury caused by the product.
After the trial court dismissed his lawsuit, Bylsma appealed to the Ninth Circuit. The Ninth Circuit referred the case to the Washington Supreme Court for guidance on the question whether “emotional distress damages absent physical injury are recoverable under the WPLA.”
In a short decision that seems to open the door to a new universe of product liability claims, six of the Justices answered that question in the affirmative. The majority first noted that, unlike the Model Uniform Product Liability Act from which it is derived, the WPLA does not include a definition of “harm” that prohibits recovery for mental anguish or emotional harm in the absence of “personal physical injuries.” Instead, RCW 7.72.010(6) defines harm as “any damages recognized by the courts of this state…,” with an exception for direct or consequential economic loss that is subject to Washington’s version of the Uniform Commercial Code, Title 62A RCW.
From there, the majority looked to pre-WPLA common law, which allowed recovery of emotional distress damages absent physical harm in non-product, negligence cases. Such damages were and remain recoverable, where emotional distress is within the scope of foreseeable harm caused by the negligent conduct; such distress is a reasonable reaction under the circumstances; and the claimed distress is manifested by “objective symptomatology.” The Bylsma majority held that the same negligence-based standard should apply to emotional distress claims under the WPLA that are asserted in the absence of any physical harm caused by the allegedly defective product.
Justice James Johnson, joined by Justices Madsen and Owens, filed an extensive and well-reasoned dissent. The dissenters first noted that when the WPLA defines recoverable “harm” as “any damages recognized by the courts of this state,” it must mean damages that Washington decisional law allows for statutory causes of action, not for garden-variety negligence claims at common law. Washington courts have consistently held that emotional distress damages are not available for statutory causes of action unless expressly provided in the statute or the cause of action is based on intentional conduct. Since the WPLA does not speak to emotional distress damages, and liability under the Act may be based on strict liability or negligence, emotional distress damages should not be available.
Furthermore, prior to enactment of the WPLA, Washington courts had adopted section 402A of the Restatement (Second) of Torts, which only imposed liability for “physical harm… caused to the ultimate user or consumer.” The WPLA specifically states that “the previous existing applicable law of this state on product liability is modified only to the extent set forth in this chapter.” RCW 7.72.020(1). The Act was passed to establish clear guidelines and to limit product liability exposures – not to expand the universe of potential claims and liability.
Finally, the dissenters reviewed the Washington case law that has permitted recovery of emotional distress in the absence of physical injury to the plaintiff, observing that all such cases required “an especially horrendous event” – not the mere sight of a contaminated food product. The dissent notes the potential future claimants that may follow the majority’s holding, such as a strict vegetarian who is served a dish containing meat; a person who keeps a kosher diet served non-kosher food; or a restaurant customer who finds a strand of hair on his plate.
The Bylsma ruling could certainly open the door to claims not seen in Washington before now. For example, a gun collector might claim that one of his prized rifles fired spontaneously because of a defective trigger mechanism. No one was injured, but he asserts that he suffers from nightmares and can no longer get near his valuable gun collection without suffering a severe panic attack. Can he state a viable claim for severe emotional distress under the Washington Product Liability Act? After Bylsma, that seems quite possible. Going one step further, Bylsma allowed the direct purchaser to recover for emotional distress. In our hypothetical, could Bylsma be logically extended to permit a bystander, who feared being struck by a bullet, to recover emotional distress damages? What about the purchaser of a bottle of champagne, beer or soda that spontaneously explodes under pressure, but does not injure her in any way? Can that purchaser recover emotional distress damages?
The Bar has never lacked for creativity in the past, and it seems likely creative claims relying on Bylsma, and seeking to extend its holding beyond food products and direct product purchasers, will be working their way through the Washington courts in years to come.