Cincinnati, Ohio (October 3, 2024) - Customers are going to need to pay extra attention when eating at Ohio restaurants from now on due to a recent ruling by the Ohio Supreme Court.
In its recent opinion Berkheimer v. REKM, L.L.C., Slip Opinion No, 2024-Ohio-2787, the Court determined that an Ohio restaurant was not responsible for a customer's injury caused by a bone in a boneless chicken wing. This ruling stems from a lawsuit filed by the customer after "he suffered serious medical problems" resulting from a chicken bone becoming lodged in his throat. Id. at ¶ 4.
The customer, his wife, and a small group of friends were dining at Wings on Brookwood in 2016 when the injury allegedly occurred. According to the customer, he placed his usual order – boneless wings with parmesan garlic sauce. After receiving his meal, the customer proceeded to cut each wing into smaller portions before eating. He was able to swallow the pieces of the first wing without issue. However, things went awry when he began eating pieces of the second wing. The customer initially believed that a piece of the wing had just "went down the wrong pipe[]" but after he developed a fever and was unable to keep food down in the days following, he visited the local emergency room. Id. at ¶ 4-5. There it was discovered that the customer had a 5cm-long chicken bone lodged in his esophagus.
Soon after, the customer filed a lawsuit against the restaurant, its food supplier, and the chicken farm that supplied the chickens. The trial court dismissed the case after granting summary judgment in favor of the defendants. The Twelfth District Court of Appeals affirmed the trial court's ruling, finding that "the bone was natural to the boneless wing and would have encompassed nearly the entire third bite of the boneless wing". 2023-Ohio-116, ¶ 29 (12th Dist.). The Court of Appeals further held that under Ohio law, "a reasonable consumer could have reasonably anticipated and guarded against the bone at issues in this case". Id. at ¶ 30.
The case eventually landed in the hands of the Ohio Supreme Court. The customer alleged that his case was wrongfully dismissed by the lower courts because they were focused on the issue of whether or not the bone was natural to the chicken instead of whether he should have found the bone inside of the boneless wing. The customer also alleged that the Court of Appeals failed to give due consideration to the fact that the food was advertised as a 'boneless wing' and there were no warnings that they may contain bones.
The Supreme Court looked to its previous opinion in Allen v. Grafton, 170 Ohio St. 249 (Ohio 1960) for guidance. There it was determined that no breach of duty occurs when a consumer could have reasonably expected and guarded against the presence of injurious substances in food, and what the consumer could have reasonably expected is informed by whether the injurious substance in the food is foreign to or natural of the food. This was Ohio's official adoption of the "reason-expectation test" instead of the "foreign-natural test". Therefore, it is relevant whether or not the object was foreign or natural in determining what a customer can reasonably expect.
In his majority opinion, Justice Deters explained that despite the food item being labeled as "a "boneless wing", it is common sense that that label was merely a description of the "cooking style; it was not a guarantee." Berkheimer, Slip Opinion No, 2024-Ohio-2787 at ¶ 23. As a result, the Court ultimately determined that the customer should have reasonably expected that a chicken bone may have been in his boneless wing since a bone is natural to a piece of chicken breast.
This recent ruling clearly establishes that customers have a duty to protect themselves against potentially hazardous objects that can be reasonably expected in the food they are consuming.
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