The Supreme Court of Ohio has dismissed a lawsuit filed by a restaurant patron who swallowed a bone in his boneless chicken wings, ruling that the presence of bones in such dishes can be reasonably expected.
In a 4-3 decision, the court upheld the dismissal of Michael Berkheimer’s 2017 lawsuit against Wings on Brookwood and its chicken suppliers. The Twelfth District Court of Appeals had previously concluded that the sellers were not liable for Berkheimer's injuries from swallowing a 1 3/8-inch bone fragment found in a 1-inch boneless wing.
Justice Joseph T. Deters, writing for the majority, clarified that "boneless wings" refer to a cooking style rather than an assurance of being completely free from bone fragments. He stated that food sellers are not liable when customers could reasonably expect and guard against hazardous substances naturally occurring 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,’” Justice Deters noted.
Chief Justice Sharon L. Kennedy and Justices Patrick F. Fischer and R. Patrick DeWine concurred with Justice Deters' opinion.
In dissent, Justice Michael P. Donnelly argued that determining what constitutes reasonable expectations should be left to a jury rather than judges. He contended that it was inappropriate for the majority to conclude there was no possible way any reasonable person could find negligence on the part of the defendants. “The better approach would be to let a jury determine what a customer should reasonably expect when ordering a dish advertised as boneless,” he wrote.
Justices Melody Stewart and Jennifer Brunner joined Justice Donnelly’s dissenting opinion.
Berkheimer's case dates back to 2016 when he visited Wings on Brookwood in Butler County with his wife and friends, ordering his usual boneless wings with parmesan garlic sauce. After swallowing what he initially thought was meat, he experienced severe symptoms over several days before doctors discovered a thin chicken bone lodged in his esophagus.
Berkheimer sued REKM LLC (the restaurant owner), Gordon Food Service (GFS), and Wayne Farms LLC (the suppliers) claiming their negligence led to his injuries. The trial court sided with the sellers, stating consumers should reasonably expect potential bone fragments in meat dishes—a decision affirmed by both the Twelfth District Court of Appeals and now by the Supreme Court.
Justice Deters explained that Ohio courts use a "blended analysis" combining two tests: whether an injurious substance is foreign or natural to food, and whether consumers could reasonably expect such substances regardless of their nature.
Applying this blended test from its 1960 Allen v. Grafton decision, which considers both aspects without favoring one over another, Justice Deters concluded Berkheimer could have anticipated and guarded against finding bones even in boneless wings based on their preparation method and size description provided by Wings on Brookwood.
However, Justice Donnelly's dissent emphasized that ordinary consumers do not anticipate bones when ordering items labeled as "boneless," suggesting parents feeding young children such items do so under this assumption—an expectation supported by dictionary definitions describing "boneless" as "without bones."
2023-0293: Berkheimer v. REKM LLC