Earlier this summer, the Ohio Supreme Court issued an opinion in which Justice Joe Deters, writing for a majority of the court, decreed that a restaurant customer should reasonably expect there to be a bone in a boneless wing. In doing so, the Court denied that customer the ability to recover monetary damages for the serious health consequences that the customer sustained from choking on the bone. This has caused a fair amount of head scratching from folks throughout the state, who apparently had been under the misguided impression that "boneless" means "without bones."
Before addressing the merits of the decision, a few caveats. First, for some reason, every time I think about this case, I get an image in my head of Foghorn Leghorn arguing the case. I don't know why. Second, I have long maintained that "boneless wings" is a misnomer. Call them what you like, but they are nuggets. It might sound a little more macho to order a round of boneless wings, but they aren't wings in any sense of the word. Let's be honest.
Having gotten that off my chest, let's talk about the case. First, let's be fair. The Supreme Court affirmed the decision of Ohio's 12th District Court of Appeals, which affirmed the summary judgment in favor of the restaurant issued by a Butler County trial court. That means that two other courts agree with the Supreme Court.
But that doesn't end the discussion. The biggest problem with the opinion isn't that its conclusion that a reasonable consumer might expect to find a bone in a boneless wing, it's the fact that it took that decision away from the jury. The test for cases like this involves two steps – first is the substance natural or foreign to the food? If the substance is a natural part of the food, the second question is whether a reasonable consumer would expect to find the substance and guard against it. In this case, the Ohio Supreme Court concluded that bones are natural to chicken and that a reasonable consumer would expect to find a bone in boneless wing. And the Court further concluded that it this expectation is so eminently reasonable, that the court could make this finding without submitting this question to a jury.
This is where the three dissenting Justices – in an opinion written by Justice Michael Donnelly – parted ways with the majority. As it stated, "[t]oday, the majority declares as a matter of law that no reasonable person could consider the facts of this case and reach a conclusion contrary to the one it reaches. This is, of course, patently untrue given that I and two other justices of this court dissent from the majority's judgment." It went on to note, "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—stating that 'it is apparent that the bone ingested by Berkheimer was so large relative to the size of the food item he was eating that, as a matter of law, he reasonably could have guarded against it.'" In the minority's view, that question should have been left to "the collective wisdom of the jurors."
The minority opinion also raises a valid point – how far does the majority opinion go? For example, is it reasonable to assume that foods labeled "lactose free", "gluten free" or "nut free" actually contain those substances? As the minority opinion notes, "[p]eople 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, so there is no possible way that a defendant who processed or wholesaled or served them could have been negligent." That is indeed a troubling prospect.
