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Can You Suffer Emotional Harm From Burger with Spit if You Don't Eat?

By Andrew Chow, Esq. on January 12, 2012 | Last updated on March 21, 2019

A Washington sheriff's deputy's Whopper of a spit-burger lawsuit is on hold, as the Ninth Circuit Court of Appeals seeks clarification about a Washington state law.

Clark County Sheriff's Deputy Edward Bylsma's beef with Burger King began at a drive-thru window, Reuters reports. Bylsma's spit-burger suit claims he ordered a Whopper -- but he didn't have it his way, as Burger King's slogan promises.

Instead, Bylsma pulled back the Whopper's bun and found a "slimy, clear and white phlegm glob" -- a topping he most certainly didn't order.

Bylsma touched the phlegm glob, but he didn't eat the spit burger, his Burger King lawsuit claims. DNA testing linked the spit to a Burger King employee, who served 90 days in jail for assault, Reuters reports.

Deputy Bylsma then sued Burger King and its franchisee under Washington's product liability laws, claiming he suffered "ongoing emotional trauma ... including vomiting, nausea, food anxiety and sleeplessness."

A lower court threw out the spit-burger suit, finding Washington's laws don't allow for mental distress awards if a product didn't cause physical harm, Reuters reports.

But Bylsma appealed to the Ninth Circuit, which said the issue was not so clear. The Ninth Circuit's order asks the Washington Supreme Court for a definitive ruling on the law.

The Ninth Circuit's request is not uncommon, because a state's Supreme Court gets the final word in interpreting state laws. You may recall the Ninth Circuit issued a similar order in considering California's same-sex marriage cases, asking California's Supreme Court to clarify a state law about who has standing to bring a lawsuit.

Washington's Supreme Court now gets to decide if it will answer the Ninth Circuit's question in Deputy Bylsma's spit-burger case. It's not clear when the Washington Supreme Court will issue its decision.

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