Edward Bylsma v. Burger King Corporation

Plaintiff-Appellant Edward J. Bylsma appealed from a final judgment on the pleadings dismissing his diversity action against Defendants-Appellees Burger King Corp. and Kaizen Restaurants, Inc. (together, “Burger King”). Bylsma’s complaint stemmed from a March 24, 2009, encounter during which two employees of a Burger King restaurant in Vancouver, Washington, served Bylsma a hamburger tainted with a glob of saliva later traced by DNA back to one of them. Bylsma asserted claims for product liability, negligence, and vicarious liability.

The district court dismissed, holding that the Washington Product Liability Act (“WPLA”) does not permit relief for emotional distress damages, in the absence of physical injury to the plaintiff purchaser, caused by being served and touching, but not consuming, a contaminated food product. On appeal, we certified to the Washington Supreme Court this dispositive and unsettled question of Washington state law. The Washington Supreme Court has now held that the WPLA permits relief in such circumstances, therefore we REVERSE and REMAND to permit Bylsma to amend his Complaint to conform to Washington law.

I

The facts as alleged by Bylsma are…