Ohio Supreme Court: Customer can't sue because boneless chicken wings could have bones

Just because you order boneless chicken wings at a restaurant does not mean you shouldn't expect to find bones, the Ohio Supreme Court said in a 4-3 ruling issued Thursday.

In a divided decision, Republicans on the Ohio Supreme Court ruled that bones are a natural part of chicken so a consumer should be on guard for them − even in boneless wings.

“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,” Republican Justice Joe Deters wrote for the majority.

But Democrats on the court called that reasoning absurd. They contended that a jury, not appeals court judges, should decide whether customers should expect to find bones in boneless wings.

Ohio Supreme Court: An Ohio diner sued over a bone in his boneless wing. The state's top court heard the case

"The result in this case is another nail in the coffin of the American jury system,” wrote Justice Michael Donnelly, a Democrat. "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."

In April 2016, Michael Berkheimer ordered boneless wings with parmesan garlic sauce at Wings on Brookwood in Hamilton. On the third piece, he felt "something go down the wrong pipe." He unsuccessfully tried clearing his throat and later that night, started to run a fever. The next day, a doctor removed the chicken bone but Berkheimer ended up with an infection and endured two surgeries.

In 2017, Berkheimer sued the restaurant owners as well as the chicken suppliers and processors. The Butler County Common Pleas Court trial judge decided that consumers should be on guard against the possibility of bones in boneless chicken. The 12th District Court of Appeals agreed. The Ohio Supreme Court heard the case in December 2023.

Berkheimer argued that boneless means boneless. The defendants argued that bones are natural to meat, so consumers should expect them.

Deters wrote that boneless wings are a cooking method, not a promise 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," Deters wrote. "The food item’s label on the menu described a cooking style; it was not a guarantee."

But Donnelly called that "utter jabberwocky." "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," he wrote.

The ruling provides legal protection to food businesses. But Donnelly wrote that it could have more serious consequences: Could someone allergic to nuts or gluten sue if they were served something dangerous to them?

"People can die under some of those circumstances, and this court would point to the decision in this case and say that lactose and gluten and nuts are natural to foods," he wrote.

Deters pushed back against that slippery slope.

"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," Deters wrote.

Laura A. Bischoff and Jessie Balmert are reporters for the USA TODAY Network Ohio Bureau, which serves the Columbus Dispatch, Cincinnati Enquirer, Akron Beacon Journal and 18 other affiliated news organizations across Ohio.

Boneless wings case by Jessie Balmert on Scribd

This article originally appeared on The Columbus Dispatch: Ohio Supreme Court: Customer can't sue over bones in boneless wings