The Ohio Supreme Court ruled 4-3 to reject a lawsuit brought by a restaurant customer who swallowed a bone that was in his order of boneless chicken wings.
The plaintiff in the lawsuit, Michael Berkheimer, sued the restaurant Wings on Brookwood, its food supplier, and a chicken farm in 2017 after he suffered serious medical problems resulting from getting a chicken bone lodged in his throat while he was eating a “boneless wing” served by the restaurant.
The year prior to filing his lawsuit, Berkheimer, while dining at Wings on Brookwood, ordered boneless wings with parmesan garlic sauce – one of which contained a “5cm-long chicken bone,” which is about 1-3/8 inches.
In his lawsuit, Berkheimer said he visited the emergency room days after swallowing the bone where a doctor discovered that the chicken bone was lodged in his esophagus where it caused a bacterial infection and “ongoing medical issues.”
Berkheimer sued the restaurant, the food supplier, and the chicken farm in the Butler County Common Pleas Court, claiming negligence led to his injuries.
In a 19-page ruling released on Thursday, the Ohio Supreme Court agreed with the trial court and the Twelfth District Court of Appeals which both previously determined that as a matter of law, the defendants were not negligent in serving or supplying the boneless wing.
The majority opinion, written by Justice Joseph T. Deters and joined by Chief Justice Sharon L. Kennedy and Justices Patrick F. Fischer and R. Patrick DeWine, reads in part:
We conclude that the court of appeals got it right. In a negligence case involving an injurious substance in food, it is true—as Berkheimer argues— that whether there was a breach of a duty of care by a supplier of the food depends on whether the consumer could have reasonably expected the presence of the injurious substance in the food and thus could have guarded against it. But that consideration is informed by whether the injurious substance is foreign to or natural to the food. The court of appeals correctly applied this blended analysis in determining that there was no material question of fact about whether Berkheimer could have reasonably expected a bone to be in the boneless wing and thus could have guarded against it. We therefore affirm the judgment of the Twelfth District.
In a dissenting opinion written by Justice Michael P. Donnelly and joined by Justices Melody Stewart and Jennifer Brunner, Donnelly sided with the plaintiff that a jury should determine the facts of the case and determine what a customer should reasonably expect when ordering wings advertised as “boneless.”
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Kaitlin Housler is a reporter at The Ohio Star and The Star News Network. Follow Kaitlin on X / Twitter.
