In July, the Ohio Supreme Court ruled in a case brought by a man who said he suffered serious injury from a bone in his order of boneless wings. The decision earned some national headlines as well as “The Late Show” host Stephen Colbert’s scorn (“It’s times like this I wonder if America is worth saving”), but might have been largely forgotten by now — if this weren’t an election year.
Democratic candidates for the Ohio Supreme Court have been referring to the case for months. Court of Appeals Judge Lisa Forbes alluded to it at a Greater Cleveland Congregations event and again at a recent City Club of Cleveland and Ohio Debate Commission forum.
Current Ohio Supreme Court Justices Melody Stewart and Michael Donnelly, who are seeking re-election, have talked about it in interviews with the Columbus Dispatch and Cleveland.com, respectively. All three candidates use the ruling — which essentially said that boneless wings can legally have bones — to portray the Republican-dominated court as out of touch.
How did this case reach the Ohio Supreme Court?
In 2016, Michael Berkheimer, 57 at the time, joined a friend at a favorite restaurant near his home in Hamilton, Ohio. Berkheimer ordered his usual, boneless wings. He cut the wings into smaller pieces to eat, but after a few bites he started choking.
At first he thought a piece of meat had gone down his windpipe, according to the Cincinnati Enquirer, which interviewed Berkheimer in July. As it turned out, he’d swallowed a piece of bone about 1.3 inches long which tore a hole in his esophagus. This caused an infection that led to “two medically induced comas, a two-month hospital stay and lasting heart and lung damage,” according to the Enquirer.
Berkheimer sued the owners of the restaurant and two companies that had supplied the chicken. But after hearing arguments from both sides, the judge granted the defendants’ request for summary judgment, meaning that the case never went to a jury. Berkheimer appealed that decision, but the appeals court sided with the first judge.
Berkheimer then appealed to the Ohio Supreme Court, which agreed to hear the case. The court is made up of seven judges, called justices. Three of them sided with Berkheimer’s request for a jury trial. But four decided that the other courts had gotten it right.
Did the Ohio Supreme Court really decide that boneless chicken wings can legally have bones?
In a word, yes. Four of the seven justices signed an opinion that called it “common sense,” regardless of the name of the dish. That opinion, written by Justice Joseph Deters, stated:
“[R]egarding the food item’s being called a ‘boneless wing,’ it is common sense that that label was merely a description of the cooking style. A diner reading ‘boneless wings’ on a menu would no more believe that the restaurant was warranting the absence of bones in the items than believe that the items were made from chicken wings, just as a person eating ‘chicken fingers’ would know that he had not been served fingers. The food item’s label on the menu described a cooking style; it was not a guarantee.”
Deters’ opinion was co-signed by Chief Justice Sharon Kennedy and Justices Patrick Fischer and Patrick DeWine. (Supreme Court decisions are called opinions, but they are final. The majority opinion and dissent in the Berkheimer case are available here.)
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How did the justices reach that decision?
All courts consider past decisions, called precedents. In this case, the justices relied heavily on a 1960 Ohio case called Allen v. Grafton. That case involved a customer biting into a piece of shell in a serving of fried oysters. The judges at that time considered two tests used by courts in other states — the foreign-natural test and the reasonable-expectation test.
The foreign-natural test asks whether the potentially harmful object is foreign or natural to the food. A piece of glass or plastic would be considered foreign to an oyster (or any food). But shell is a natural part of an oyster, even if it’s not supposed to be part of a particular oyster dish.
And if an object is natural, then the next question is whether it’s reasonable to expect that it could be in your food and guard against it. If so, then someone who, say, swallows a chicken bone that was in a chicken pie (as in a California case that was cited in the Allen decision), cannot sue the restaurant that served it. The decision in the California case said that no one was “entitled” to “a perfect chicken pie” every time they order one. The Allen case adopted that logic, and in the Berkheimer case, the Ohio Supreme Court reaffirmed it.
The majority also cited the size of the bone that Berkheimer swallowed and decided that “a reasonable person could have anticipated and guarded against” swallowing it. The decision does not define “reasonable” or explain whether “person” would include children.
Responding to another justice who raised a hypothetical — and potentially fatal — example of food that was labeled lactose-, gluten- or nut-free but contained them anyway, the majority wrote: “[U]nlike the presence of the bone in this case, the presence of lactose or gluten in a food that was advertised as lactose-free or gluten-free is not something a consumer would customarily expect and be able to guard against.”
This is not explained either.
What did the other justices say?
The lactose and gluten question was raised in the dissent, the opinion of justices who disagreed with the majority. Justice Donnelly wrote the dissent, and Justices Stewart and Jennifer Brunner (whose term ends in 2027) co-signed it.
Donnelly cited the definition of “boneless” from four different dictionaries, then wrote: “Instead of applying the reasonable expectation test to a simple word — ‘boneless’ — that needs no explanation, the majority … conclud[ed] instead that ‘boneless’ means ‘you should expect bones.’”
The majority opinion also “adopts the foreign-natural test as the factor rather than a factor in determining what amounts to a reasonable expectation,” Donnelly wrote. That makes it impossible to win a case involving a “natural” object in food, “regardless of how negligent the supplier or provider of the product might have been.”
Donnelly stated that he’s not convinced that the restaurant and suppliers in the Berkheimer case were negligent. But a jury should decide, not judges applying their own logic.
