I’ve got a bone to pick with the Ohio State Supreme Court. What were they thinking?

Eight years ago, Michael Berkheimer dropped by one of his favorite hangouts, Wings on Brookwood in Hamilton, Ohio, because he had a yen for boneless wings with parmesan garlic sauce.

Berkheimer had eaten the boneless chicken wings many times before at the restaurant. But this time was different.

Berkheimer felt like his wing went down the wrong way. He went to the washroom but couldn’t clear his throat. That was the end of the meal. Over the next several days he didn’t eat much.

Three days later, he went to the emergency room with a high fever where Berkheimer learned that the “boneless” chicken wings he ate, in fact, contained at least one bone that lodged in his esophagus. Doctors removed the needle-like 5-centimeter chicken bone and sent Berkhimer on his way.

But Berkheimer says he suffered multiple medical complications — including an infection of his thoracic cavity leading to decreased cardiac function and paralysis of his phrenic nerve.

Berkheimer sued the owner of the restaurant REKM, the packer Wayne Farms LLC, and food distributor Gordon Food Service. Claims included negligence, breach of warranty, adulterated food, misbranded food, and deceptive trade practices.

Berkheimer’s lawsuit argued if chicken wings are branded as “boneless” there should be an expectation that the wings are, in fact, without bones. Sounds reasonable right?

Brookwood’s menu sells “boneless wings.” And Wayne Farms LLC products advertise “boneless skinless whole chicken breast.”

Boneless. No bones. Isn’t that a case of misbranding and negligence?

Not according to the trial court and the 12th District Court of Appeals. The trial court granted summary judgment to the defendants, rejecting Berkheimer’s argument:

“Even if the Court were to apply the ‘reasonable-expectation’ test, common sense dictates that the presence of bone fragments, even in dishes advertised as ‘boneless’ is a natural enough occurrence that a consumer should reasonably expect and guard against it.”

The 12th District Court of Appeals went even further, applying a “foreign-natural” test in ruling against Berkheimer:

“Relying upon cases from Maryland, New York, Iowa, and California, Berkheimer claims that, because REKM advertised the product as ‘boneless wings,’ a chicken bone is unnatural to that food, and is therefore, a foreign substance if present in the meat dish. However, despite the authority cited by Berkheimer, Ohio courts have not adopted a similar position. Rather, at least one Ohio court has found that simply because a product is advertised as ‘boneless’ does not negate that bone fragments in chicken meat is a natural occurrence. As such, because the chicken bone at issue here was natural to the chicken meat used to produce the boneless wings, we conclude it cannot legitimately be considered an unnatural or ‘foreign substance.’ ”

All of which left the Ohio State Supreme Court the final arbitrator to consider the relationship, if any, between the “foreign substance” and “reasonable-expectation” tests, and whether consideration of negligence cases applying these standards are best left up to a jury and not summary judgment.

Unfortunately, the Ohio State Supreme Court ruled 4-to-3 in late July that Berkheimer had no legal ground to stand on in finding:

“…regarding the food items being called a ‘boneless wing,’ it is common sense that that label was merely a description of the cooking style. A diner reading ‘boneless wings’ on a menu 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 ‘chicken fingers’ would know that he had not been served fingers. The food item’s label on the menu described a cooking style; it was not a guarantee… The Twelfth District properly considered whether Berkheimer could have reasonably expected a bone to be in the boneless wing and thus could have guarded against it. And its consideration was appropriately informed by the fact that a bone is natural to a piece of a chicken breast.”  

Case closed.

That’s just wrong. Not necessarily on the specific merits of the case, but rather that the Ohio State Supreme Court has denied Berkheimer and all future litigants in similar negligence lawsuits the ability to make a case before a jury by giving pre-eminence to the “foreign substance” test. The 4-to-3 divided court has decided no reasonable person could possibly come up with any other verdict, a ruling vehemently opposed by the minority ruling:

“The majority’s decision ossifies one factor as the rule and declares that if a substance is ‘natural’ to a food product, a consumer who is injured while eating the product has no recourse regardless of how negligent the supplier or provider of the product might have been… Instead of applying the reasonable expectation test to a simple word — ‘boneless’ — that needs no explanation, the majority has chosen to squint at that word until the majority’s ‘sense of the colloquial use of language is sufficiently dulled… I certainly am not convinced at this stage of the proceedings that the processor, the wholesaler, or the server of the chicken was careless (or negligent). But I am convinced that Berkheimer should be able to present evidence of their negligence to a jury. Jurors likely have eaten boneless wings, some will have fed boneless wings to their children, and jurors have common sense. They will be able to determine, better than any court, what a consumer reasonably expects when ordering boneless wings.”

It is mind boggling that the Ohio State Supreme Court has given defendants from this day forward in these types of negligence cases what amounts to a free pass. I mean what if it just wasn’t one bone? What if Berkheimer had taken the remains of his meal home and discovered multiple bones? What if a packer was having a bad day and truckloads of what were supposed to be “boneless” chicken flooded the market? 

I don’t know how a jury might view Berkheimer’s case. But alas, we’ll never find out. As for the rest of us, words like “boneless” very well may have no legal meaning depending on where you live.

The post When ‘boneless’ isn’t quite so, is anyone at fault? appeared first on Investigate Midwest.