Justices of the Washington Supreme Court released an opinion Jan. 31 on the “phlegm burger” case. It’s about a deputy sheriff in Clark County who bought a Whopper at the drive-in window, felt funny about it, and before he could bite into it, peeked under the bun and discovered a glob of spit. A DNA test pinpointed the spitter, who confessed and was sentenced to 90 days in jail for felony assault.
The deputy sheriff says he is so grossed out that he has suffered from vomiting, nausea, food aversion and sleeplessness. The question before the court is whether Washington law allows him to sue Burger King for mental anguish and collect money damages.
The court split 6-3, with Justices Steven Gonzalez, Charles Johnson, Mary Fairhurst, Debra Stephens, Charles Wiggins and Tom Chambers ruling that he could, and Jim Johnson, Barbara Madsen and Susan Owens arguing that he could not.
A key fact in the case is that the man didn’t eat the hamburger. Granted that he was grossed out. But was he injured?
The judges’ arguments turned on the wording in state law and rulings in previous cases—and their opinions in this case don’t make exciting reading. But the situation calls for opinions. Mine is a strictly non-legal one — a commentator’s opinion.
I don’t think the sheriff should be able to demand a monetary award from Burger King because there is no measurable injury. The award is 100 percent punishment, and I don’t see that Burger King did anything wrong. It was never their policy for employees to spit in customers’ food–just the opposite—and he wasn’t even their employee. He worked for Kaizen Restaurants, the local operator.
A lot of people like to fix responsibility to institutions, particularly large ones with lots of money. I agree in cases in which there has been an institutional decision, like the classic decision in the 1970s Ford Motor Co. to put the gas tank on the Pinto where it created a hazard to life. But the “phlegm burger” was the decision of a rogue individual. He can’t claim he didn’t know it was wrong. He knew. Punishing him makes the world better because justice is done and maybe he learns a lesson. Punishing Burger King is wasted effort. Most likely it creates a liability claim at an insurance company. The loss will be rolled into insurance rates and socialized, making the world worse.