{"id":2078,"date":"2024-07-31T16:58:10","date_gmt":"2024-07-31T16:58:10","guid":{"rendered":"https:\/\/usatrustedlawyers.com\/blog\/ohio-supreme-court-rules-that-boneless-wings-can-have-bones-justia-news-july-31-2024\/"},"modified":"2024-07-31T16:58:10","modified_gmt":"2024-07-31T16:58:10","slug":"ohio-supreme-court-rules-that-boneless-wings-can-have-bones-justia-news-july-31-2024","status":"publish","type":"post","link":"https:\/\/usatrustedlawyers.com\/blog\/ohio-supreme-court-rules-that-boneless-wings-can-have-bones-justia-news-july-31-2024\/","title":{"rendered":"Ohio Supreme Court Rules That Boneless Wings Can Have Bones \u2014 Justia News \u2014 July 31, 2024"},"content":{"rendered":"\n
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On Thursday, July 25, 2024, the Supreme Court of Ohio ruled that a consumer who suffered serious medical problems after having a bone lodged in his throat while eating a boneless chicken wing could have reasonably expected the boneless wing to have bones.<\/p>\n

Michael Berkheimer dined at Wings on Brookwood, a restaurant in Butler County, Ohio. He placed his usual order of boneless wings with parmesan garlic sauce. Berkheimer claimed that there was no warning on the menu notifying him that the boneless wings might contain bones. He cut a wing into three pieces and, while eating the third piece, \u201cfelt like something went down, a piece of meat went down the wrong pipe.\u201d Berkheimer had a fever and was unable to keep food down the following days. Three days after his meal at Wings on Brookwood, he went to the emergency room. A doctor discovered a 5 centimeter-long chicken bone lodged in his throat. The bone tore his esophagus and caused a bacterial infection in his thoracic cavity, which led to ongoing medical issues.<\/p>\n

Berkheimer filed a lawsuit against the restaurant, its food supplier, and a chicken farm. The trial court determined \u201cthat common sense dictated that the presence of bone fragments in meat dishes \u2013 even dishes advertised as \u2018boneless\u2019 \u2013 is a natural enough occurrence that a consumer should reasonably expect it and guard against it.\u201d Berkheimer appealed the ruling and the appellate court affirmed the trial court\u2019s judgment. The appellate court found that the bone was natural to the boneless wing and the size \u201ccould have encompassed nearly the entire third bite of the boneless wing.\u201d<\/p>\n

Berkheimer argued to the Supreme Court of Ohio that the restaurant was negligent in selling the boneless wing in question since the restaurant \u201cshould have known that [the food] was unfit to eat.\u201d Berkheimer further argued that the appellate court applied the \u201cforeign-natural\u201d test incorrectly. The Court ultimately ruled that lower courts in Ohio should use a blend of the \u201cforeign-natural\u201d test and the \u201creasonable expectation\u201d test,\u201d and that the appellate court properly applied the blended analysis.<\/p>\n

\u201c[T]he foreign-natural test looks to whether the injurious substance found in the food was foreign to or natural to the food\u201d to determine a seller\u2019s negligence. The Court in an earlier case adopted this test with the caveat that \u201cif the substance is within a consumer\u2019s reasonable expectation of what might be present in the food. . . the supplier could not be said to have violated its duty of care.\u201d The Court clarified in Berkheimer\u2019s case that the the foreign-natural test is relevant to determine what a consumer could have reasonably expected.<\/p>\n

Berkheimer did not argue that the chicken bone was a foreign substance, however. Instead, Berkheimer challenged the appellate court\u2019s conclusion that he could have reasonably expected a bone to be in the boneless wing. Specifically, Berkheimer alleged that the item \u201cwas advertised as a \u2018boneless wing\u2019 and that there was no warning given that a bone might be in the boneless wing.\u201d The court ruled that the food item\u2019s label on the menu described the cooking style and was not a guarantee. \u201cA diner. . . would no more believe that the restaurant was warranting the absence of bones in the items than believe that the items were made from chicken wings, just as a person eating \u2018chicken fingers\u2019 would know that he had not been served fingers.\u201d<\/p>\n

The Court affirmed the judgment of the appellate court. The dissenting judges did not take issue with the law posited by the majority \u2013 that the foreign-natural test is a relevant inquiry to the reasonable expectation test. The dissent argued, rather, that \u201cthe majority opinion makes a factual determination to ensure that a jury does not have a chance to apply something the majority opinion lacks \u2013 common sense. . . Berkheimer should be able to present evidence of [the processor, the wholesaler, and the server\u2019s] negligence to a jury.\u201d The dissent continued on to state that a jury \u201cwill be able to determine, better than any court, what a consumer reasonably expects when ordering boneless wings.\u201d<\/p>\n

Additional Reading<\/strong><\/p>\n

Chicken wings advertised as \u2018boneless\u2019 can have bones, Ohio Supreme Court decides<\/a>, The <\/em>Associated Press<\/em> (July 25, 2024)<\/p>\n

Opinion in Berkheimer v. REKM, L.L.C.<\/em><\/a><\/p>\n

Photo Credit<\/strong>: <\/strong>Brent Hofacker \/ Shutterstock.com<\/p>\n<\/div>\n