Consumers must be aware that “boneless chicken” may actually have bones in it, the Ohio Supreme Court has ruled after a man sued a restaurant and poultry processors when a piece of a bone he was not expecting went down his windpipe and caused serious medical problems.
Michael Berkheimer was eating boneless wings with parmesan garlic sauce at Wings on Brookwood in Hamilton in 2016 when he felt “something go down the wrong pipe,” the Columbus Dispatch reported.
After failing to dislodge the morsel, Berkheimer became feverish later that night.
A doctor was able to remove a piece of a chicken bone the next day, but the ordeal had left him with an infection requiring him to undergo multiple surgeries, two medically induced comas, and a debilitating heart condition, according to his attorney.
“As a result of the accident, he can’t work,” Berkheimer’s lawyer, Robb Stokar, told the Enquirer.
Berkheimer, 65, said he is also prevented from playing ice hockey like he did before that fateful meal.
He sued the restaurant owners as well as the chicken suppliers and processors in 2017, but the Butler County Common Pleas Court trial judge decided that consumers are responsible for assuming the risk of bones being in chicken, regardless if it is advertised as “boneless.”
The 12th District Court of Appeals agreed before the case moved on to the state’s Supreme Court in December 2023.
In a 4-3 Tuesday ruling, conservative justices decided that customers should be on guard for bones in boneless chicken.
“There is no breach of a duty when the consumer could have reasonably expected and guarded against the presence of the injurious substance in the food,” Justice Joe Deters (R) wrote for the majority.
Justice Michael Donnelly (D) called the ruling “utter jabberwocky.”
“The result in this case is another nail in the coffin of the American jury system,” he wrote. “In my view, the majority opinion makes a factual determination to ensure that a jury does not have a chance to apply something the majority opinion lacks − common sense.”
However, Deters believes that boneless wings are a method of cooking, not a guarantee of no bones.
“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 conservative justice opined. “The food item’s label on the menu described a cooking style; it was not a guarantee.”
Deters did not apply the same logic to food allergens, writing, “Unlike 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.”
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