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Lay Down the Law: Tell the Staff Not to Spit in the Food

By Robyn Hagan Cain on February 15, 2013 | Last updated on March 21, 2019

The idea of the disgruntled waiter spitting in a cranky customer's food seems to be much more than urban lore: Try searching online for "waiters spitting in food." You'll be horrified by the results. Especially if you're counsel for a restaurant chain.

A customer who discovers that she consumed another person's saliva with her sweet tea has every right to flip out about it. This week, the Ninth Circuit Court of Appeals expanded the possibilities for spit-suits to include fluid-tainted food items that the plaintiff had not yet consumed.

In the case, Bylsma v. Burger King Corp, Deputy Sheriff Edward J. Bylsma ordered a burger from Burger King, drove away, and -- suspecting that something was amiss -- checked the burger before breaking out the chomp. He found a wad of spit, which DNA testing linked back to a fast food worker.

The worker got 90 days in jail. The restaurant, meanwhile, got a lawsuit after the officer claimed that he suffered from emotion distress, nausea, food aversion, and sleeplessness.

The district court dismissed the case after finding that the Washington Products Liability Act applied, and that the WPLA does not allow damages for emotional distress absent physical injury. (Bylsma never bit the burger, so there was no injury, according to the lower court.)

The Ninth Circuit reversed that decision.

In the context of negligence cases, Washington allows claims for emotional distress in the absence of physical injury only where "emotional distress is (1) within the scope of foreseeable harm of the negligent conduct, (2) a reasonable reaction given the circumstances, and (3) manifest by objective symptomatology."

Because the Ninth Circuit felt that emotional turmoil and severe disgust were foreseeable harms from contaminated food, the court found that recovery would be possible if Bylsma could prove damages. The appellate court remanded the case to let Bylsma amend his complaint to plead facts sufficient for a claim under the WPLA.

Granted, this case provides a Washington-specific fact set, but it also shows that the Ninth Circuit -- the largest of the federal appellate circuits -- is thoroughly grossed out by spit. And it's willing to find ways to hold restaurants liable for such behavior.

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