Day on Torts
It takes a particular type of jerk to project a loogie onto a hamburger that is being served to another person. (I guess you would never do that to a hamburger you intended to eat yourself.) And there is a relatively small subset of jerks who would do this to a police officer who ordered the burger for a late-night meal.
Now, what are the odds that the police officer would sense that something was amiss before eating that burger? Deputy Bylsma from Clark County, Washington did, and when he pulled the top of the bun off his burger he observed a “slimy, clear and white phlegm glob” on the meat patty.
Now, the good deputy had one course of action that comes immediately to mind. He could go into Burger King, identify which of the only two people on the job committed this act, and then proceed to resolve the situation with a good ol’ fashioned ass whipping. But Bylsma was smarter than that.
He called for back-up (what is the 10-code for a loogie on a burger?) and got DNA tests both on the glob and the two employees at the restaurant who were on duty that night.
Later DNA testing revealed that the glob on the meat patty was Burger King employee Gary Herb’s saliva. Herb pled guilty to felony assault and was sentenced to 90 days in jail. Bylsma filed suit against the restaurant, and claims that he suffers ongoing emotional trauma from the incident, including vomiting, nausea, food anxiety, and sleeplessness, and has sought treatment by a mental health professional.
The federal district court dismissed the case, saying that the Washington Products Liability Act (WPLA) did not allow for recovery of mental distress damages caused to a purchaser by a contaminated product in the absence of physical injury.
The Ninth Circuit Court of Appeals looked at Washington law and concluded that it was unsure whether the Supreme Court of Washington would recognize a cause of action for Bylsma. Thus, it certified this question to Washington’s highest court: "whether the WPLA permits relief for emotional distress caused to a direct purchaser by a contaminated product in the absence of physical injury." The Ninth Circuit panel properly concluded that "the answer to the unsettled question of law presented by Bylsma’s appeal will have far-reaching effects on those involved in the manufacture and sale of products in Washington. We are reluctant to create uncertainty in this area of the law by answering this question ourselves in the first instance."
Of course, the urban legend is that this conduct happens in our restaurants. We know one incident where this happened to another police officer – a Michigan teenager supplied his own version of special sauce to the turkey wrap of a state trooper. One experienced server tells us in this video that such conduct doesn’t occur in "nice" restaurants – I did not find particularly his words particularly comforting.
So, we will see how the Washington Supreme Court handles this issue. I must confess I know nothing about the WPLA and therefore cannot predict how the Court will rule on this issue.
One last thought for the loogie-man, just in case he decides to Google his name: Mr. Herb, I hope you enjoyed your little joke. Big laugh. Ha ha. I am sure that you had plenty of time to think about what you did while you were sitting in jail. Let me ask you this, Mr. Herb. As you were sitting in jail, did you think about your fellow prisoners who worked in the kitchen? Did you ever wonder whether any of those fine citizens might have returned the favor to you? Or did you just think the scrambled eggs were a little under-cooked that Saturday morning?
Hat tip to Torts Prof .