Can a restaurant customer sue if they find bones in their order of “boneless chicken wings”? What if the bone caused their injury?
Today, at Burkheimer v. reckham gmbhThe Ohio Supreme Court has upheld a lower court decision that concluded customers cannot sue restaurants for negligence for injuries allegedly caused by chicken bones found in orders of “boneless chicken wings.”
Here is Judge Deters’ opinion for the four-judge majority:
Michael Berkheimer is suing a restaurant, its food supplier and a chicken farm after a chicken bone got stuck in his throat while eating “boneless wings” and caused serious health problems . The trial court found that the defendants were not negligent as a matter of law in serving or supplying the boneless chicken wings, and the Twelfth District Court of Appeal affirmed that decision.
Burkheimer argued that the appeals court focused on the wrong issue — whether the bone that caused his injury was a natural bone from a boneless chicken wing — and erred in determining that the restaurant did not breach its duty of care when it served him boneless chicken wings. The relevant question, Burkheimer insists, is whether he could reasonably have expected to find bones in the boneless wings. He believed the resolution of the issue should be left to the jury.
We conclude that the Court of Appeal’s decision was correct. In negligence cases involving hazardous substances in food, as Burkheimer argued, whether a food supplier breached its duty of care depends on whether consumers could reasonably have anticipated the presence of the hazardous substance. But this consideration depends on whether the harmful substance is foreign or natural in the food. The Court of Appeals correctly applied this mixed analysis and determined that there was no material factual issue in determining whether Burkheimer could have reasonably anticipated the presence of bone in the boneless wing and thereby guarded against it. Therefore, we affirm the judgment of the Twelfth District.
Part of the opinion discussing what people should expect from an order of “boneless wings”:
Burkheimer protested that the appeals court did not adequately consider the fact that the food was advertised as “boneless wings” and failed to warn that boneless wings may contain bones. Regarding the latter argument, food suppliers are not their insurance companies. As for the item being called “boneless wings,” common sense is that the label is simply a description of the cooking style. When diners see “boneless chicken wings” on a menu, they won’t believe the restaurant’s guarantee that the dishes contain no bones, nor that the dishes are made with chicken wings, just like someone who eats “chicken fingers” will know he The dish is made of chicken wings. Food labels on menus describe cooking styles; this is not a guarantee.
Dissenters wonder what happens when it comes to foods advertised as lactose-free or gluten-free. Obviously, such a case has not appeared before us. But unlike the presence of bones in this case, the presence of lactose or gluten in foods advertised as lactose-free or gluten-free is not something consumers typically expect and can guard against.
Judge Donnelly wrote the three-judge dissent. It starts with:
The result of this case is another nail in the coffin of the American jury system. The majority determined the facts of the case for itself and determined that there were no facts that would enable the appellant, Michael Berkheimer, the plaintiff in the underlying negligence action, to prove negligence on the part of the defendants. Today, the majority declared that, as a matter of law, no reasonable person could consider the facts of this case and come to a conclusion contrary to this case. Of course, this is patently untrue, given that I and two other justices of this court disagree with the majority’s decision.
From the objections regarding the meaning of “boneless” in “boneless wings”:
The absurdity of this result is exacerbated by some of the explanations most people give for this result, which read like a Lewis Carroll novel. The majority opinion is that “it’s common sense [the label ‘boneless wing’] Just a description of the cooking style.[a] When diners see “boneless chicken wings” on a menu, they won’t believe the restaurant’s guarantee that the dishes contain no bones, nor that the dishes are made with chicken wings, just as someone who eats “chicken fingers” would know Did he ever eat his fingers.
The majority’s burst of common sense was short-lived, however, as their opinion also stated that no one would conclude that a restaurant’s use of the term “boneless” on a menu is equivalent to the restaurant’s “guaranteed bonelessness.” ID. In fact, that’s exactly what people think. Not surprisingly, the dictionary says so too. “Boneless” means “without bones.” . . .
The question that must be asked is: Does anyone really believe that parents in this country feed their children boneless chicken wings, tenders, nuggets or chicken fingers expecting there to be bones in the chicken? Of course they don’t know. When they read the word “boneless,” they think it means “without bones,” and so do all wise people. This is one of the reasons why they feed such items to young children. When someone sells or serves boneless chicken wings to him or her, a person’s reasonable expectation is that there are no bones in the chicken. . . . In the Ohio Edison case, rather than applying the reasonable expectations test to a simple word “boneless” that required no explanation, the majority chose to squint at the word until the majority’s “conventional understanding of the language’s spoken use” It feels dull enough.” Co., 2019-Ohio-2401, ¶ 67 (DeWine, J., concurring), concluding that “boneless” means “you should expect bones.”
