Sounds pretty nutty on its face. And the minority opinion on the Ohio Supreme Court case called it worse than that. But the state’s top judicial panel ruled that ‘boneless’ chicken can’t be assumed to be free of bones…
Your typical ‘boneless’ chicken wings/chunks/nuggets…
The case was brought by one Michael Berkheimer (pictured, top of page) in 2017, over a harrowing experience he suffered due to an unexpected bone in a ‘boneless’ chicken wing. He claimed the defective wing was served to him by Wings on Brookwood in Butler County, Ohio, in 2016.
‘Down the wrong pipe’
Berkheimer said something stuck in his throat while he was eating, and he tried – as it turned out, unsuccessfully – to clear it. He noticed nothing more at the time. But a few days later, he developed a fever and swelling, and experienced difficulty swallowing. An ER doctor subsequently removed a thin chicken bone from his esophagus. But by that time, the wound was infected, and that led to further complications.
Courts disagreed
Berkheimer sued the restaurant, but the court found for the defendants. So did Ohio’s 12th District Court of Appeals. So, Berkheimer took his plaint to the State Supreme Court. And they also turned him down, on a 4-3 split decision.
Writing for the majority, Justice Joseph T. Deters stated: “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 opinion basically upheld the defendants’ claim that the term ‘boneless wings’ referred simply to a cooking style. And it was not a guarantee that there would be no bones in the product.
Minority report
Writing for the minority, Justice Michael P. Donnelly called the majority’s reasoning, “utter jabber-wocky.” And adding: “Still, you have to give the majority its due; it realizes that boneless wings are not actually wings and that chicken fingers are not actually fingers.”
But he continued, in a more serious vein: “The question must be asked: Does anyone really believe that the parents in this country who feed their young children boneless wings or chicken tenders or chicken nuggets or chicken fingers expect bones to be in the chicken? Of course they don’t. When they read the word ‘boneless’, they think that it means ‘without bones’, as do all sensible people.”
Following precedent
The majority on the State Supreme Court may have faced ridicule from some for their ruling. But they were, in fact, following a long trail of legal precedents relating to the food and foodservice industries.
Consumers have, for many decades, challenged food processors and restos which, they claimed, served them products that failed to live up to the makers’ promises.
Nobody’s perfect
The prevailing opinion seems to be, nobody – and no machine on a processing or packaging line – is perfect. Sometimes unwanted objects or substances slip through. How many food recalls have we seen when foreign materials or substances were found in a few packages of a product?
Makers of processed foods now commonly state, on their packages, that their products ‘may con-tain’ certain allergens or non-organic ingredients in small quantities – because the products were made on equipment used to manufacture ‘regular’ products. Likewise, restaurants commonly boast that their vegetarian or vegan menu items are made on dedicated equipment, separate from that used to prepare animal products.
My take
On one hand, I side with the Ohio Supreme Court minority. When I see the term ‘boneless’, I assume that there will be NO BONES in the product. Period. And I believe it’s reasonable for an ‘end-user’ such as Berkheimer to make that assumption.
But I also realize that accidents do happen. What I didn’t know was, there are some tricky ‘tests’ the courts apply in these situations, to determine liability.
Natural or foreign?
The point on which the majority decision apparently relied was the so-called ‘Natural-Foreign’ distinction. Was the ‘contaminant’ something found naturally in the food item? Or something ‘foreign’, such as glass, metal or plastic fragments?
“To determine whether a food supplier is liable for failing to eliminate a harmful substance from the food, a court looks at whether the substance was something the consumer could have reasonably expected and guarded against,” Court News Ohio (CNO) explained. And the Court decided that the bone was a ‘natural’ substance the restaurant, “could not have reasonably expected and guarded against.”
CNO further reported, “Berkheimer did not dispute that conclusion.”
So… What will henceforth be known as the ‘Berkheimer Case’ becomes a clear, solid precedent that will be enshrined in the annals of American Jurisprudence as the standard against which all future such cases will be tested…
~ Maggie J.