The Supreme Court rejected the lawsuit of a restaurant patron who swallowed a bone that was in his boneless chicken wings.

The Supreme Court rejected the lawsuit of a restaurant patron who swallowed a bone that was in his boneless chicken wings.

The Supreme Court of Ohio ruled today that a restaurant patron who ordered boneless chicken wings could have reasonably expected to find a piece of bone in his meal and guarded against swallowing it.

In a 4-3 decision, the Supreme Court ruled that Michael Berkheimer’s 2017 lawsuit against Wings on Brookwood and its chicken suppliers was properly dismissed by the lower courts at the summary judgment phase. The majority found the Twelfth District Court of Appeals correctly concluded that the sellers were not liable for the injuries Berkheimer suffered after swallowing a 1 3/8-inch sliver of bone found in a 1-inch boneless wing.

Writing for the Court majority, Justice Joseph T. Deters explained that “boneless wings” are a cooking style and not a guarantee that fragments of bones would not be present in the dish. He explained that a food seller is not liable when a customer could reasonably expect and guard against a hazardous substance in food. A customer’s “reasonable expectation” is formed in part by whether the “injurious substance in the food is foreign to or natural to the food,” he noted.

Chief Justice Sharon L. Kennedy and Justices Patrick F. Fischer and R. Patrick DeWine joined Justice Deters’ opinion.

In a dissenting opinion, Justice Michael P. Donnelly maintained that a jury should determine the facts of the case. To the contrary, the majority concluded, not merely that the defendants were not negligent, but that there is no possible way that any reasonable person could conclude that the defendants had been negligent, he wrote. He stated that the better approach would be to let a jury determine what a customer should reasonably expect when ordering a dish advertised as boneless, instead the majority oddly declares that “boneless” means “you should expect bones.” In the dissent, Justice Donnelly did give the majority credit for realizing, as they stated, that boneless wings are not actually wings and that chicken fingers are not actually fingers. 

Justices Melody Stewart and Jennifer Brunner joined Justice Donnelly’s dissent.

Diner Injured by His Usual Order
In 2016, Berkheimer, his wife, and a few friends went to Wings on Brookwood in Butler County. REKM LLC owns the restaurant. Berkheimer ordered his usual – boneless wings with parmesan garlic sauce. Berkheimer followed his normal practice of cutting each boneless wing into two or three pieces. He was eating the third piece of a wing when he felt “a piece of meat [go] down the wrong pipe.”

He went to the restroom to try to clear his throat but was unsuccessful. Over the next three days, he spiked a fever and had trouble eating. During a visit to the emergency room, a doctor discovered a thin chicken bone lodged in his esophagus. His medical records indicated it was a “5cm-long chicken bone,” which is about 1-3/8 inches.

According to Berkheimer’s lawsuit, the bone tore his esophagus, causing a bacterial infection, which resulted in ongoing medical issues. A Wings on Brookwood chef explained that the restaurant bought pre-cut boneless, skinless chicken breasts from Gordon Food Service (GFS) and cut the chicken breasts into one-inch chunks to make boneless wings. GFS purchased the boneless wings from Wayne Farms LLC.  Berkheimer sued REKM, GFS, and Wayne Farms in the Butler County Common Pleas Court, claiming the food sellers’ negligence led to his injuries.

The trial court agreed with the sellers, finding that “common sense dictated the presence of bone fragments in meat dishes” and that consumers should reasonably expect and guard against it.

Berkheimer appealed to the Twelfth District, which affirmed the trial court’s decision. Berkheimer appealed to the Supreme Court, which agreed to hear the case.

Supreme Court Analyzed Food Injury Case Rules
Justice Deters explained that courts around the nation use two tests to determine whether a food seller is liable for injuries caused by objects in food. Ohio applies a “blended analysis” of the two tests.

One test is the “foreign-natural” test, which determines whether the harmful substance was foreign to the food, like a piece of glass, or natural to the food, such as a bone. Under this test, a seller is negligent for supplying food with a foreign substance, the opinion explained.

The “reasonable expectation” test determines whether a consumer would customarily expect and guard against a harmful substance whether it was natural or not, the Court noted.

In its 1960 Allen v. Grafton decision, the Court declined to adopt one test to the exclusion of the other. Instead, it blended the foreign-natural and reasonable expectations test, the opinion stated.

To determine whether a food supplier is liable for failing to eliminate a harmful substance from the food, a court looks at whether the substance was something the consumer could have reasonably expected and guarded against.

“Whether the substance was foreign to or natural to the food is relevant to determining what the consumer could have reasonably expected,” Justice Deters explained.

The Twelfth District applied the Allen test by first considering whether the bone was foreign or natural to the food and concluded it was natural. Berkheimer did not dispute that conclusion.  Instead, he argued that the Twelfth District should have considered how boneless wings were prepared when determining if it was reasonable for him to expect the bone, the opinion noted.

The Twelfth District considered the size of the bone and the description of the wing’s size. It concluded that a reasonable person could have anticipated and guarded against a relatively large bone in a bite-size piece of chicken.

“The Twelfth District properly considered whether Berkheimer could have reasonably expected a bone in the boneless wing and thus could have guarded against it,” the Court concluded.

Jury Should Apply Test, Not Judges, Dissent Asserted
In his dissent, Justice Donnelly disputed the majority’s conclusion that no reasonable person could find from the facts of the case that the food suppliers were negligent. The dissent noted a chicken bone could be slender, like a needle, and “could remain in something that is not easily picked apart.”  The dissent maintained that a person ordering a “boneless” item on the menu would believe the restaurant guarantees an absence of bones. The dissent noted that all of the dictionaries consulted define “boneless,” not surprisingly, as “without bones.” 

Justice Donnelly stated, “The question must be asked: Does anyone really believe that the parents in this country who feed their young children boneless wings or chicken tenders or chicken nuggets or chicken fingers expect bones to be in the chicken? Of course they don’t. When they read the word ‘boneless,’ they think it means ‘without bones,’ as do all sensible people.”

2023-0293. Berkheimer v. REKM LLC, Slip Opinion No. 2024-Ohio-0293.

View oral argument video of this case.

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