People feel strongly about chicken wings.
Purists will inevitably say that bone-in is the way to go, but sometimes you just don’t want to deal with the mess. That’s what’s great about the relatively modern invention of the boneless “wing.” It might be a misnomer, but it chicken scratches the itch without making a sloppy impression on your first date.
It might not be so simple in Ohio, though. Recently, the state’s Supreme Court handed a ruling that's sure to ruffle some feathers.
Chicken Dinner Not a Winner
Ohio resident Michael Berkheimer and his wife decided to go out to dinner with friends one evening in the suburbs north of Cincinnati. Berkheimer was a chicken wing fan, and so they opted to go to a restaurant aptly named Wings. Berkheimer preferred boneless wings and had a particular habit of cutting each boneless wing into smaller pieces before eating. He ordered his usual favorite: boneless wings with parmesan garlic sauce.
As he always did,he cut the wings into smaller bites. But when he bit into the third piece of his second wing, he felt something odd after chewing and swallowing. It seemed to him like a piece of meat had gone down the wrong way. He rushed to the restroom to clear his throat, but didn’t have much luck.
Over the next few days, Berkheimer developed a fever and couldn’t keep food down. Concerned, he went to the emergency room three days later. His wife worried he might have something stuck in his throat. A doctor’s examination confirmed just that: a thin, 5cm-long chicken bone was lodged in his esophagus. The bone had torn his esophagus, causing a bacterial infection and ongoing medical issues.
Berkheimer Has a Bone to Pick
Berkheimer was understandably upset with his terrible turn of luck. He took the company that owned Wings, REKM LLC, to a state trial court over the incident. Since Wings made their boneless wings from chicken breasts supplied by Gordon Food Service, Berkheimer included Gordon as a co-defendant. He also added as a third defendant Wayne Farms, the company that sold the chicken to Gorden.
Berkheimer claimed that these food companies were liable for negligence, breach of warranty, and violations of the Ohio Deceptive Trade Practices Act, among other things. For our purposes, we're focusing on the negligence claim. For that, Berkheimer alleged that the three defendants were each negligent in either producing, distributing, or serving a boneless wing with a bone in it.
Bone-afide Negligence?
At trial, Berkheimer explained that since the menu didn’t mention any possibility of bones in the boneless wings, he didn’t think twice about it. Sam Platt, a cook at Wings on Brookwood, explained how they prepared the boneless wings. Using the pre-butterflied, boneless, skinless chicken breasts supplied by Gordon, Platt would cut the chicken breast into about 20 one-inch chunks for the boneless wings. He said that he physically touched roughly 90% of them before they were served to customers.
In order to establish actionable negligence – in Ohio or anywhere else – you have to show the existence of a duty, a breach of the duty, and an injury resulting “proximately” from the breach. So, Berkheimer had to establish that Wings, Gordon, and Wayne Farms each had some sort of duty of care, that they each breached said duty, and that this breach is ultimately what caused him his injury and illness.
Case Goes Up the Pecking Order
Initially, the Ohio trial court sided with the defendants, granting their motions for summary judgment because the court found that Berkheimer couldn’t possibly prove his case. But the appellate court reversed this decision, stating that the trial court didn’t have enough facts to make this conclusion, and sent the case back.
After more discovery, the defendants filed for summary judgment again. The trial court again agreed with them. The judge ruled that it was common sense to expect that bone fragments might be present in meat dishes, even those labeled as "boneless."
Berkheimer appealed again, but this time, the appellate court upheld the trial court’s decision. The appellate court agreed with the trial judge that the bone was a natural part of the boneless wing and that a reasonable consumer should have anticipated and guarded against it.
But the parmesan garlic-lover wasn’t ready to give up. He appealed the appellate court’s decision to the Supreme Court of Ohio, which agreed to hear his case.
Ohio Supreme Court Says No Fowl Play
The Ohio Supreme Court found that the correct analysis in negligence cases involving an injurious substance in food is whether the consumer in question could have reasonably expected and guarded against the presence of the injurious substance. But should it be up to a jury to answer this, or should it be a question for the judge (meaning that “summary judgment” was appropriate)?
The court found that it should not always be up to a jury to decide the matter. It concluded that summary judgment is appropriate in negligence cases involving injurious substances in food when there is no “genuine issue of material fact” and the moving party is entitled to judgment as a matter of law.
The court also established that determining whether the consumer could have “reasonably expected and guarded against” the harmful thing in the food should be informed by whether the substance that harmed the customer is “foreign to” or “natural to” the food. If it was foreign to the food, then the food was not “reasonably” fit to eat and the supplier breached its duty of care. But in Berkheimer’s case, the court determined the presence of a bone in a piece of chicken breast is something a consumer could reasonably expect and guard against.
As such, the court said that no jury could conclude that defendants were negligent. And therefore, in this case, summary judgment was appropriate. In other words, Wings and the chicken companies are safe for now, and Berkheimer can’t recover for his unfortunate incident.
Takeaways for the Rest of Us
We’ll note that in setting this standard, the Ohio Supreme Court declined to adopt a new standard that would align Ohio's laws with the rest of the country on the issue of whether this kind of question should be up to a jury to decide. For most of the country, we can still expect not to find a bone in our boneless wings for the most part (or we can sue if we do).
But Ohio boneless wing lovers like Berkheimer will need to be more vigilant in the future. Maybe start adopting that piece of advice your mom always told you when you were little: chew your food 40 times before you swallow.
Related Resources:
- Chicken Farmers Cry Fowl ... and Other Legal News You May Have Missed (FindLaw's Courtside)
- Food Poisoning and the Law (FindLaw's Learn About the Law)
- Chicken Companies Probed in Federal Investigation Over Child Labor Claims (FindLaw's Law and Daily Life)
