Deputy Sheriff Edward Bylsma bought a Whopper with cheese from a Burger King drive-through in Vancouver, Washington. After driving away, he opened the burger and saw what appeared to be a glob of spit on the meat patty, touched it with his finger, and later DNA testing showed the saliva belonged to an employee working at the time. Bylsma did not consume the burger. He alleged ongoing emotional distress, including vomiting, nausea, food aversion, sleeplessness, and treatment by a mental health professional.
Issue
Does the Washington Product Liability Act permit a direct purchaser to recover emotional distress damages, absent physical injury, when he is served and touches, but does not consume, a contaminated food product?
Rule
Under the WPLA, damages are recoverable if they are "recognized by the courts of this state." Emotional distress damages, absent physical injury, are recoverable by the direct purchaser of a contaminated food product who was served and touched but did not consume it, if the emotional distress is within the scope of foreseeable harm, is a reasonable reaction under the circumstances, and is manifested by objective symptomatology.
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In Spokane, Nora Kim bought a boxed salad from Cascade Square Market, a grocery operated by Pine Arch Foods. Before eating it, she opened the lid, saw a used adhesive bandage mixed into the greens, and pulled it out with her fingers. She did not eat the salad, but over the next two weeks she experienced repeated vomiting and insomnia documented in urgent-care records.
If Nora sues the manufacturer under Washington's product liability statute for emotional distress damages only, what is the strongest argument that her claim may proceed?
Explanation. The majority held that under the WPLA, a direct purchaser may recover emotional distress damages without physical injury when the purchaser is served and touches, but does not consume, contaminated food, so long as the distress is foreseeable, a reasonable reaction, and manifested by objective symptomatology. Nora fits that framework because she purchased the food, touched the contamination, did not consume it, and has objective symptoms documented by medical records.