COLUMBUS, Ohio (Legal Newsline) - A diner who suffered complications from swallowing a chicken bone that was hiding in a supposed “boneless wing” has no case against the food supplier, the Ohio Supreme Court ruled, because chicken bones aren’t foreign to chicken meat.
Three justices dissented, saying “the result in this case is another nail in the coffin of the American jury system.” Meanwhile, a federal judge is deciding whether a class action lawsuit claiming boneless wings should be de-boned actual wings and not glorified chicken nuggets can continue.
In the Ohio case, Michael Berkheimer sued REKM LLC, owner of the Wings on Brookwood restaurant, and food suppliers Gordon Food Services and Wayne Farms after he ingested a 5-centimeter piece of bone in a piece of meat identified as a “boneless wing.”
Berkheimer argued there was “no warning on the menu indicating that the boneless wings could contain bones.” He said he “followed his normal practice” of cutting each wing into two or three pieces.
One felt like it “went down the wrong pipe” and three days later, Berkheimer went to the emergency room with fever and inability to keep food down. The piece of bone had torn his esophagus and caused infection and complications.
A Wings on Brookwood employee testified the restaurant actually made the “wings” by slicing up a boneless chicken breast into as many as 20 pieces.
A trial court dismissed Berkheimer’s case and an appeals court upheld the judgment, finding a reasonable consumer should expect bone fragments were possible in chicken meat. The Ohio Supreme Court agreed, ruling in a July 25 opinion by Justice Joseph T. Deters that consumers should expect bones in chicken just as “tiny bones may remain in the best fillets of fish.”
The Ohio Supreme Court took the case in order to decide two questions: Whether it’s up to a jury to determine what a consumer must expect when a seller disclaims the presence of an injurious substance in food, and whether Ohio should adopt the “reasonable expectation” test used in the rest of the country.
Ohio uses a test that blends what a reasonable consumer might expect with evidence of whether the injury was caused by a substance foreign or natural to the food. The Supreme Court refused to alter that test.
The plaintiff argued it is always a jury question to decide whether a consumer should have expected something in food that the seller specifically denied was there, like a bone in a “boneless” wing. The Supreme Court disagreed, ruling that summary judgment is appropriate when there’s no evidence to support a plaintiff’s case.
The court cited Allen v. Grafton, a 1960 decision dismissing a lawsuit by a diner who was injured by shell fragments in fried oysters.
“Like the oyster shell at issue in Allen, it is apparent that the bone ingested by Berkheimer was so large relative to the size of the food item he was eating that, as a matter of law, he reasonably could have guarded against it,” the Supreme Court ruled. Were it a foreign substance like glass, nails or tainted meat, the court said, Berkheimer might have had a case, the court concluded.
Justice Michael P. Donnelly dissented, joined by justices Melody J. Stewart and Jennifer Brunner. They criticized the majority for deciding the facts of the case instead of leaving that job to a jury, saying their colleagues engaged in reasoning that “reads like a Lewis Carroll piece of fiction.”
“Given the majority opinion here, it is not a stretch to believe that this court would consider a person who was served lactose after they ordered a food labeled `lactose free,’ or a person who was served gluten after they ordered a food labeled `gluten free,’ or a person who was served nuts after they ordered a food labeled `nut free,’ to be without a remedy,” the dissenters said. “People can die under some of those circumstances.”
Robinson Law Firm represented the plaintiff, while the defendants were represented by Markesbery & Richardson, Locke Lord and Green & Green.
The Ohio Association for Justice, representing trial lawyers, filed a brief urging a ruling for the plaintiff.