¶1 Clark County Deputy Sheriff Edward Bylsma seeks to proceed to trial and recover damages from Burger Kang Corporation under the Washington product liability act (WPLA), chapter 7.72 RCW, for his claim that he suffers ongoing emotional distress from discovering that he was served a burger with phlegm inside the bun. In a certified question, the Ninth Circuit Court of Appeals asks us to determine whether 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. We answer that the WPLA permits relief in such circumstances, but only if the emotional distress is a reasonable reaction and manifest by objective symptomatology.
I. Facts and Procedural History
¶2 On March 29, 2009, Clark County Deputy Sheriff Edward J. Bylsma drove his marked police cruiser through the drive-through of a Burger King that is operated by Kaizen Restaurants in Vancouver, Washington. Bylsma ordered a Whopper with cheese and drove away with an uneasy feeling after receiving his burger. He pulled into another parking lot down the street, lifted the top bun, and observed what appeared to be a glob of spit on the meat patty. He inserted his finger into the glob to confirm it was not fat. Later DNA (deoxyribonucleic acid) testing revealed the saliva belonged to one of the employees working at the time.
¶3 Bylsma brought suit against Burger King and Kaizen Restaurants in the United States District Court for the
¶4 Burger King moved for judgment on the pleadings. Magistrate Judge Papak issued findings and recommendations and recommended Burger King’s motion be granted. The magistrate judge found that Washington law applies, the WPLA preempts all other causes of action, and the WPLA does not allow for recovery of emotional distress damages caused to a purchaser in the absence of physical injury. District Court Judge Marsh adopted the magistrate judge’s findings and recommendations and dismissed the case.
¶5 Bylsma appealed to the Ninth Circuit. Bylsma does not dispute that Washington law applies or that the WPLA preempts other potential causes of action but argues that emotional distress damages absent physical injury are recoverable under the WPLA. Opening Br. at 1. Because this issue is central to the outcome of the case and its resolution may have far-reaching effects in Washington, the Ninth Circuit seeks our guidance. Order Certifying Question at 129-30.
II. Standard of Review
¶6 Certified questions from federal courts are pure questions of law that we review de novo. Bradburn v. N. Cent. Reg’l Library Dist., 168 Wn.2d 789, 799, 231 P.3d 166 (2010). This certified question involves interpreting the WPLA. In interpreting a statute, our primary aim is to ascertain and carry out the legislature’s intent. Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002).
¶7 The WPLA, enacted in 1981, created a single cause of action to provide relief 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.” RCW 7.72.010(4); Wash. Water Power Co. v. Graybar Elec. Co., 112 Wn.2d 847, 853-56, 860, 774 P.2d 1199, 779 P.2d 697 (1989). A “product liability claim” under the WPLA preempts any claim or action that previously would have been based on any “substantive legal theory except fraud, intentionally caused harm or a claim or action brought under the consumer protection act, chapter 19.86 RCW.” RCW 7.72.010(4); see Graybar, 112 Wn.2d at 860; Wash. State Physicians Ins. Exch. & Ass’n v. Fisons Corp., 122 Wn.2d 299, 323, 858 P.2d 1054 (1993); La.-Pac. Corp. v. ASARCO Inc., 24 F.3d 1565, 1584 (9th Cir. 1994). Under the WPLA, if “the claimant’s harm was proximately caused by the fact that [a] product was not reasonably safe in construction,” then the product manufacturer is strictly liable. RCW 7.72.030(2). A product is not reasonably safe in construction only if “when the product left the control of the manufacturer, the product deviated in some material way from the design specifications or performance standards [or] from otherwise identical units of the same product line,” with the trier of fact “consider [ing] whether the product was unsafe to an extent beyond that which would be contemplated by the ordinary customer.” RCW 7.72.030(2)(a), (3). The WPLA establishes separate standards for claims based on defective design or inadequate warnings or instructions, which are not at issue here. RCW 7.72.030(1).
¶8 Although much of the WPLA was taken from the Model Uniform Product Liability Act (UPLA), 44 Fed. Reg. 62, 713 (Oct. 31, 1979), the legislature chose not to use the UPLA’s definition of “harm.” Senate Journal, 47th Leg., Reg. Sess., at 630 (Wash. 1981); Fisons, 122 Wn.2d at 319-20. The
¶9 Under the WPLA’s definition of “harm,” we look to Washington case law to determine whether the damages in question are “recognized by the courts of this state.” RCW 7.72.010(6). Because the WPLA does not require proof of intent and does not preempt claims based on intentional conduct, we will focus on strict liability and negligence cases for guidance. See Fisons, 122 Wn.2d at 321.
¶10 In deciding whether to allow damages for emotional distress in the absence of physical injury, Washington courts have balanced the right to compensation for emotional distress against competing interests in preventing fraudulent claims and ensuring that tortfeasers are held responsible only insofar as is commensurate with their degree of culpability. We have not addressed emotional distress damages absent physical injury in the context of a strict liability claim. In negligence cases, however, we allow claims for emotional distress in the absence of physical injury only where emotional distress is (1) within the scope of foreseeable harm of the negligent conduct, (2) a reasonable reaction given the circumstances, and (3) manifest by objective symptomatology. Hunsley v. Giard, 87 Wn.2d 424, 433, 436, 553 P.2d 1096 (1976). These requirements were developed to address past concerns that feigned claims of emotional distress would lead to “ ‘intolerable and intermix nable litigation.’” Corcoran v. Postal Tel.-Cable Co., 80
IV. Conclusion
¶11 We answer the certified question in the affirmative. The WPLA permits relief for emotional distress damages, in