BK Product Liability Product liability is a complicated and expansive sect of law and society. The role of the consumer is very important in the economic processes and political organization of our environment. As a result of this influence, product liability laws are continually evolving and reaching out into new areas of commerce.

The purpose of this essay is to examine the product liability law case of Byslma v. Burger King Corporation. This essay will document and describe the background and company history and its relation to the product safety issue. The essay will also discuss the legal theories and strategies that the plaintiff used and is using in its current appeal. I will also explore the very complex map of regulatory agencies that are designed to oversee and eventually protect citizens of its subscribers. Lastly this essay will argue for certain recommendations to the company to avoid future problems of a similar nature.

Case Background

On March 29, 2009, the plaintiff, Edward Byslma, a Vancouver, Washington Deputy Sherriff officer, while on duty, drove his marked patrol car through the drive-through of a Burger King restaurant owned by one defendant he was suing and franchised by Burger King Corp., the other defendant of the case. Byslma decided to order lunch and bought a Whopper with cheese and drove away. Something strange and peculiar happened next. Byslma was suspicious of his lunch and for some reason he had, per the complaint, "an uneasy feeling." Byslma before eating his sandwich, pulled into a parking lot down the street, opened the wrapping, lifted the bun, and saw the notorious spit.

There have been many of lawsuits claiming that food was purposely tainted by spit and by sometimes other bodily fluids other than saliva. This case is unique. There are two distinct differences between Officer Bylsma's case and most of the others that are related to food product liability cases. The first distinction is that he had the spit found on the cheeseburger tested for DNA and then had the DNA traced to a specific employee at the restaurant. The second difference is that Officer Bylsma did not taste the burger, so he could not claim any form of physical harm from ingesting it.

Bylsma's claimed that the product is liable for his "emotional distress, including vomiting, nausea, food aversion, and sleeplessness." The question is whether this is sufficient to give him a settlement in his favor. Washington's Product Liability Act which was in enacted in 1981 serves to alter this case in a major way. This state law proclaims "Any manufacturer, packer, distributor, carrier, holder, marketer, or seller of a food or nonalcoholic beverage intended for human consumption, or an association of one or more such entities, shall not be subject to civil liability in an action brought by a private party based on an individual's purchase or consumption of food or nonalcoholic beverages in cases where liability is premised upon the individual's weight gain, obesity, or a health condition associated with the individual's weight gain or obesity and resulting from the individual's long-term purchase or consumption of a food or nonalcoholic beverage.

This law was enacted in 1981 to "provide a single cause of action for 'harm caused by the manufacture, production, making, construction, fabrication, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging, storage or labeling of a product.'" It provides for liability on a negligence basis for some defects and provides for strict liability "if the claimant's harm was proximately caused by the fact that the product was not reasonably safe in construction or not reasonably safe because it did not conform to the manufacturer's express warranty or to the implied warranties under" Article 2 of the Uniform Commercial Code.

Analysis

The Revised Code of Washington (RCW), which document their state laws helps put this argument in perspective. Under RCW 7.72.030(2)(a): "A product is not reasonably safe in construction if, when the product left the control of the manufacturer, the product deviated in some material way from the design specifications or performance standards of the manufacturer, or deviated in some material way from otherwise identical units of the same product line. In this case Byslma's Whopper was tampered with and deviated from a normal Whopper that would have been served.

There is still more to this case than just awarding the plaintiff by serving him a defective burger. As mentioned before some sort of damage must have occurred to make Burger King liable in for something. Baker (2013) explained how this case is still alive, "The 9th U.S. Circuit Court of Appeals...

Rev. Code chapter 7.72, without showing physical injury. The appeals court said plaintiff Edward Bylsma can file an amended product liability complaint stating his emotional-distress claim against Burger King and franchisee Kaizen Restaurants in line with the WPLA."
This case has many implications that transcend some of the more disgusting and childish aspects of this case. First, the introduction of emotional stress and its linkage to food and food service. This certainly raises the bar of expectation for any businesses in the food service industry adding new pressures to not only to succeed but to avoid damaging their business by unintentionally causing emotional distraught. Payne (2013) expounded on that idea when she reported on the judgment: " The Washington Supreme Court recently held that the state's strict liability statute, the Washington Product Liability Act, "permits relief for 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, if the emotional distress is a reasonable response and manifest by objective symptomatology." Bylsma v. Burger King Corp., No. 86912-0, *6 (Wash. Jan. 31, 2013)."

The conclusion on the appeal reads: "We answer the certified question in the affirmative.

The WPLA permits relief for 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, if the emotional distress is a reasonable response and manifest by objective symptomatology " (p.7). It appears that regulatory agencies in the State of Washington are clearly ruling over any other more general or federal laws that may pertain this unique case of product liability.

Recommendations For The Defendant

This case has not been settled yet but has gone forward in appeal making some changes preliminary for Burger King. The dissenting opinion on the appeal suggested that that the Washington Product Liability Act does not allow for emotional-distress damages, in the absence of physical injury because a contaminated cheeseburger is not a reasonable cause for such a reaction. This case will be decided at a later date but there are still some ways Burger King can address this situation.

Stearns (2009) introduced some new ideas in his article about product liability. He revealed that there are many misconceptions about product liability in the food service industry and companies would be wise to become familiar with some of the truths regarding this information. The idea of strict liability and all of its implications need to be understood. Stearns argued that "Under the new rule of strict liability, to hold a manufacturer liable, a person injured while using a product need only show that: (1) the product was defective; (2) it was used as intended; and (3) the defect caused the injury. The care used in the manufacture of the product is irrelevant to the determination of liability. The only issue in a product liability case is the effectiveness of the product, not the manufacturer's conduct in somehow allowing the defect to arise. As a result, proof of negligence is not required to recover damages. "

Under strict liability interpretations of product liability laws it appears that Burger King does not have much ground to stand on. The emotional distress caused by the spitting Burger King workers being equivocated to serious harm presents some inescapable problems that require these companies to hire "risky" people.

It appears that Burger King has failed by hiring workers not responsible enough to treat one another with a minimum amount of respect. This is a problem that may not be solved by any legislative methods, at least not directly. Fast food companies may need to hire more responsible people to man their counters but human nature will always produce "bad seeds" and incidents like this are very rarely identified or they may not occur very much at all. Burger King must expect certain types of these incidents on occasion and be able to sacrifice some of their profits towards settling these cases when they arise.

Conclusions

This case is slightly embarrassing to discuss because of the need for our law system to govern such childish behavior. Product liability law requires a common sense approach by all who are involved in these processes. Frivolity and greed seem to be wed in a unholy marriage in this particular case, however it still lives and breathes. What is inherently dangerous and generally…