Saturday, January 21, 2012

Burger King Spit Ball Leads to Emotional Distress Claim

Infliction of emotional distress, as I've written about several times, is a difficult claim to establish in Pennsylvania.  Pittsburgh personal injury attorneys are often confronted with clients shaken from their various ordeals wanting to bring claims for intentional or negligent infliction of emotional distress.  As I noted in my earlier post Intentional Infliction of Emotional Distress in Pennsylvania, Pennsylvania courts do recognize actions for infliction of emotional distress, but only in very egregious cases.

Now a suit has been filed in the state of Washington concerning a hamburger that had been spat upon by an employee of Burger King.  Plaintiff developed an uneasy feeling after receiving a Whopper with cheese.  When he lifted the bun, he saw a "slimy, clear and white phlegm glob" on the burger.  The glob was tested and was a DNA match with one of Burger King's employees, who pled guilty to felony assault.  Plaintiff claims ongoing emotional distress.  The district court granted judgment on the pleadings to Burger King.  On appeal, the Ninth Circuit certified the following question:  “Does the Washington Product Liability Act permit relief for the emotional distress damages, in the absence of physical injury, caused to the direct purchaser by being served and touching, but not consuming, a contaminated food product?”  This resulted in the Ninth Circuit court of appeals certifying a question to the Washington Supreme Court. 

The big question, as if often the case in Pennsylvania, is whether you can recover for emotional distress if you did not suffer any physical injury.  In Pennsylvania, to recover for psychic injuries, you typically have to establish that you entered psychiatric treatment for the condition developed from the emotional incident.  Testimony from a licensed therapist, psychologist or psychiatrist is often the threshold of whether a claim for emotional distress succeeds or fails.  Arguably the individual in the Burger King case could argue that they did suffer physical damage evidenced by the sickness (possibly ongoing) they felt in their stomach.  But the real damages would lie in whether this person can establish that they incurred some type of post traumatic stress disorder.  It will be interesting to see how this case progresses.  You can read more about this case at the ABA Journal's article Can Cop Get Emotional Distress Damages for Spit on Burger? Share this post :
Share on Facebook
Share on Twitter
Share on StumbleUpon
Share on Delicious
Share on Reddit
Share on Digg
Share on simpy
Share on Technorati
furl Share on furl
Feeds RSS Subscribe to Feeds RSS

No comments:

Post a Comment