Customer should have known boneless chicken wings can contain bones, top state court says in tossing suit
A restaurant customer can’t sue for negligence after a chicken bone became lodged in his throat while eating boneless chicken wings, the Ohio Supreme Court has ruled. (Image from Shutterstock)
A restaurant customer can’t sue for negligence after a chicken bone became lodged in his throat while eating boneless chicken wings, the Ohio Supreme Court has ruled in a 4-3 decision affirming summary judgment for the defendants.
The customer, Michael Berkheimer, can’t take his case to a jury because he could have reasonably expected a bone to be in the boneless wing and could have guarded against it, the state supreme court said in a July 25 opinion.
Berkheimer contracted a bacterial infection from the bone, leading to ongoing medical issues. He had sued the restaurant, Wings on Brookwood in Butler County, Ohio, as well as its food supplier and a chicken farm that sold the chicken to the supplier.
The chicken bone that Berkheimer swallowed was 1 ⅜ inches long. The “wings” were actually made from skinless chicken breasts that were cut into chunks and fried.
Whether a consumer can reasonably expect an injurious substance in food depends on whether the substance is foreign or natural, the state supreme court said. Because the bone is natural and it was so large that Berkheimer could have reasonably guarded against it, there is no material question of fact and the case should be tossed, according to the Ohio Supreme Court.
Berkheimer had argued that courts should have considered that the food was advertised as a “boneless wing,” and there was no warning that it might have included a bone. But the label was “merely a description of the cooking style,” the Ohio Supreme Court said. “A supplier of food is not its insurer.”
Berkheimer had also argued that his case should be evaluated under a “reasonable expectation” test, rather than a “foreign-natural test.” The Ohio Supreme Court said it declined “to adopt one test to the exclusion of the other,” and courts in the state should use “a blend of the two tests.”
“There is no breach of a duty when the consumer could have reasonably expected and guarded against the presence of the injurious substance in the food,” the state supreme court said. “And what the consumer could have reasonably expected is informed by the determination whether the injurious substance in the food is foreign to or natural to the food.”
The dissenters agreed with the majority’s statement of law but disagreed with its conclusion. Berkheimer should have been allowed to present his case to a jury, the dissenters argued. The case is “another nail in the coffin of the American jury system,” the dissent said.
The chicken bone was “about the size of many needles, which are famously good at hiding,” the dissent said. “Imagine how well a slender chicken bone can remain hidden in something that is not easily picked apart, especially when the person that might encounter the bone does not expect it to be there.”
News 5 Cleveland WEWS published a statement from Robb Stokar, Berkheimer’s attorney.
Berkheimer “suffered catastrophic injuries from a bone contained in a menu item unambiguously advertised as ‘boneless’ at every level of commerce,” Stokar said. “All we asked is that a jury be able to make a commonsense determination as to whether he should be able to recover for his injuries. But the court’s majority ruled otherwise, simultaneously denying him that opportunity, and rendering the word ‘boneless’ completely meaningless.”
Other publications that covered the opinion include Court News Ohio and the Associated Press. How Appealing links to additional coverage.
