Edward J. BYLSMA, Plaintiff-Appellant,
BURGER KING CORPORATION, a Florida corporation; Kaizen Restaurants, Inc., an Oregon corporation, Defendants-Appellees.
Gary M. Bullock, Gary M. Bullock and Associates, P.C., Barry Goehler, Law Office of Barry J. Goehler, Portland, OR, for Defendants-Appellees.
Before: M. MARGARET McKEOWN and RICHARD C. TALLMAN, Circuit Judges, and BARRY T. MOSKOWITZ, District Judge.[*]
TALLMAN, Circuit Judge:
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.
The facts as alleged by Bylsma are summarized in our Order Certifying the Question to the Supreme Court of Washington, 676 F.3d 779, 780-81 (9th Cir.2012), and we need not repeat them here. Bylsma did not challenge the district court’s conclusion that Washington law applied and that his only potential claim arose under the WPLA. Thus, the only question before us on appeal was whether, absent physical injury, the WPLA nonetheless allows for recovery on Bylsma’s emotional damages claim. Believing the issue to be unsettled under state law, we certified the following question: “Does the Washington Product Liability Act permit 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?” On January 31, 2013, the Washington Supreme Court answered in the affirmative, holding that the WPLA permits relief in 932*932 such circumstances, but only if the emotional distress is a reasonable reaction and manifest by objective symptomatology. Bylsma v. Burger King Corp., ___ Wash. ___, 293 P.3d 1168, 2013 WL 363519 (Wash. Jan. 31, 2013).
In light of the Washington Supreme Court’s decision, we conclude that Bylsma must now be given another opportunity to amend his Complaint. Accordingly, we REVERSE and REMAND to allow the district court, in the first instance, to determine whether Bylsma, after amendment, has pled the necessary facts to support his emotional damages claim under the WPLA as now interpreted.
Costs are awarded to Bylsma.
[*] The Honorable Barry T. Moskowitz, United States District Judge for the Southern District of California, sitting by designation.