When boneless does not equal without bones

Ohio Supreme Court Issues Another Terrible Decision…

Again, Siding with Corporations Over Ohio Citizens

The Ohio Supreme Court recently ruled that a man who ordered “boneless” wings at a restaurant should have expected the wings to have bones in them. Yes, you read that correctly. The Court threw out the man’s personal injury case without even allowing a jury trial, deciding that it is the responsibility of the consumer – not the restaurant or suppliers – to inspect “boneless” wings for the presence of bones. This is just another example of the Supreme Court placing the interests of corporations over the safety of Ohio citizens.  

Back in 2017, Michael Berkheimer ordered “boneless” wings at a restaurant in Southwest Ohio. He cut up his wing into thirds, eating the first two pieces of it normally. On the third one, he felt like something went down the wrong pipe. He ran to the restroom and tried to vomit, unsuccessfully. For the next two days, he couldn’t eat anything without throwing up.

He was rushed to the ER with a 105-degree fever. Doctors found a 1- and 3/8-inch chicken bone in his throat, which tore open the wall of his esophagus and caused a massive infection. This led to several surgeries, two medically induced comas, and a week-long stay in intensive care, followed by three additional weeks in the hospital. The medical issues are still ongoing.

Berkheimer sued the restaurant and their chicken suppliers, arguing that the sellers’ negligence (leaving bones in its boneless wings) led to his injuries. Both the Butler County Court of Common Pleas and the Twelfth District Court of Appeals sided against Berkheimer, the latter court stating, “common sense dictates that the presence of bone fragments [in ‘boneless’ wings] is a natural enough occurrence that a consumer should reasonably expect and guard against it..” Neither court let the case go to trial.

A Boneheaded and political decision

Berkheimer appealed to the Ohio Supreme Court, which ruled that the lower courts made the right decision. All four Republicans on the high court joined the majority decision, and all three Democrats dissented.

The Republican justices decided that no reasonable consumer would think that “boneless” chicken wings would not have bones in them, especially since chickens have bones. Justice Joe Deters (Republican) wrote that the restaurant wasn’t liable “when the consumer could have reasonably expected and guarded against the presence of the injurious substance in the food.” Deters added that “boneless wings” are a “cooking style,” not a representation to consumers that there are no bones in the wings. Yes, he really said that. In writing.

The Democrats emphatically dissented. The idea that the label “boneless wing” is a cooking style is “Jabberwocky,” according to Justice Michael Donnelly, who called the opinion absurd. 

This ridiculous decision could have ripple effects. For people whose diets are nut, dairy, or gluten-free, the Court has decided that if they order allergy-free food, it could still have the allergen because that is “natural” to the food. In other words, the Court has shifted the burden onto the consumer, instead of the restaurant or supplier, to make sure the food is nut, dairy, or gluten-free.

The Eisen Law Firm’s take on this safety issue

The issue before the Court should have been whether Berkheimer was entitled to have a jury of regular people (not political judges with an agenda) decide if the restaurant and its suppliers were negligent. Instead, the Court overstepped its bounds to ensure “that a jury [did] not have a chance to apply something the majority opinion lacks — common sense,” said Justice Donnelly. He went on to explain that the Court didn’t have the full facts, being unable to see what the bone looked like. “If it did, then I suggest that the majority suffers from a serious, perhaps disingenuous, lack of perspective.”

In November, Ohioans will have a chance to make their voices heard at the ballot box. Do we want more Justices on the Supreme Court who lack common sense and twist themselves in knots trying to find ways to rule in favor of corporations/donors, or Justices like Justice Donnelly, who will stand up for what is right and protect Ohio citizens? The choice seems pretty clear.

At The Eisen Law Firm, we have been handling injury cases for decades. We stay on top of the ins and outs of Ohio negligence laws – which are constantly changing – and we treat each case with the unique focus it deserves. If you or someone you know might have a case, please contact us as soon as possible, so that we can determine whether you have a valid claim that isn’t too late to be filed. You can reach us at 216-687-0900 or www.malpracticeohio.com for your free case evaluation.