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.
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, “felt like something went down, a piece of meat went down the wrong pipe.” 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.
Berkheimer filed a lawsuit against the restaurant, its food supplier, and a chicken farm. The trial court determined “that common sense dictated that the presence of bone fragments in meat dishes – even dishes advertised as ‘boneless’ – is a natural enough occurrence that a consumer should reasonably expect it and guard against it.” Berkheimer appealed the ruling and the appellate court affirmed the trial court’s judgment. The appellate court found that the bone was natural to the boneless wing and the size “could have encompassed nearly the entire third bite of the boneless wing.”
Berkheimer argued to the Supreme Court of Ohio that the restaurant was negligent in selling the boneless wing in question since the restaurant “should have known that [the food] was unfit to eat.” Berkheimer further argued that the appellate court applied the “foreign-natural” test incorrectly. The Court ultimately ruled that lower courts in Ohio should use a blend of the “foreign-natural” test and the “reasonable expectation” test,” and that the appellate court properly applied the blended analysis.
“[T]he foreign-natural test looks to whether the injurious substance found in the food was foreign to or natural to the food” to determine a seller’s negligence. The Court in an earlier case adopted this test with the caveat that “if the substance is within a consumer’s reasonable expectation of what might be present in the food. . . the supplier could not be said to have violated its duty of care.” The Court clarified in Berkheimer’s case that the the foreign-natural test is relevant to determine what a consumer could have reasonably expected.
Berkheimer did not argue that the chicken bone was a foreign substance, however. Instead, Berkheimer challenged the appellate court’s conclusion that he could have reasonably expected a bone to be in the boneless wing. Specifically, Berkheimer alleged that the item “was advertised as a ‘boneless wing’ and that there was no warning given that a bone might be in the boneless wing.” The court ruled that the food item’s label on the menu described the cooking style and was not a guarantee. “A 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 ‘chicken fingers’ would know that he had not been served fingers.”
The Court affirmed the judgment of the appellate court. The dissenting judges did not take issue with the law posited by the majority – that the foreign-natural test is a relevant inquiry to the reasonable expectation test. The dissent argued, rather, that “the majority opinion makes a factual determination to ensure that a jury does not have a chance to apply something the majority opinion lacks – common sense. . . Berkheimer should be able to present evidence of [the processor, the wholesaler, and the server’s] negligence to a jury.” The dissent continued on to state that a jury “will be able to determine, better than any court, what a consumer reasonably expects when ordering boneless wings.”
Additional Reading
Chicken wings advertised as ‘boneless’ can have bones, Ohio Supreme Court decides, The Associated Press (July 25, 2024)
Opinion in Berkheimer v. REKM, L.L.C.
Photo Credit: Brent Hofacker / Shutterstock.com
