In Inside Courts, retired judge Tom Hodson explains the complexities of the law and legal cases, helping you understand what’s at stake — and how it affects you.
On July 25, the Ohio Supreme Court in a 4-3 party-line decision found that a restaurant patron in southwestern Ohio couldn’t receive damages for swallowing a chicken bone in supposed “boneless wings.”
The customer suffered a laceration of his esophagus and a bacterial infection leading to ongoing medical problems.
He sued the restaurant Wings of Brookwood, the wholesaler of the chicken and its suppliers.
The Republican majority ruled that “boneless wings” is a cooking style and not a guarantee of no bones. The court also concluded that the food seller is not liable for injuries when a customer “could reasonably expect and guard against a hazardous substance in the food.”
The majority further explained that the patron’s “reasonable expectation” should be determined by whether the “injurious substance in the food is foreign to or natural in the food.”
In other words, you should expect bones to be in boneless wings because chickens have bones.
Ohio Democrats quickly condemned the decision, calling for a return to “common sense” on the court.
“Today’s shameful decision is yet another example of Republicans on the Supreme Court throwing common sense out the window to help special interests– at the cost of standing up for Ohioans,” said Ohio Democratic Party spokeswoman Katie Seewer. “If Republicans want a result in a case, they’ll stop at nothing to get it — even if it means contorting the truth so that bones can be expected in boneless chicken. If they are willing to say something that any kindergartener would know is nonsense, what happens when complex matters come to the court? Are Ohioans expected to trust this GOP majority with their reproductive rights and upholding the constitution? “
Why the outrage?
This November three seats on the Ohio Supreme Court are up for grabs. Two Democrats are being challenged and one is an open seat. Since November 2022, Supreme Court justices have their party affiliations listed on the ballot, so party affiliations and control of the court are important. This coming November is no exception.
- Incumbent Democratic Justice Michael P. Donnelly, who wrote the dissent in this case, is being challenged by a Republican Megan E. Shanahan.
- Incumbent Democrat Melody Stewart is being challenged by current Republican Justice Joseph Deters, the author of the “boneless” decision. Deters is giving up his current seat — an unexpired term ending Dec. 31, 2026 — to run against Stewart for a full term.
- Democrat Lisa Forbes is squaring off against Republican Dan Hawkins for Deters’ seat.
If the Democrats win all three seats, they gain a 4-3 majority on the court. If the Republicans sweep, they’ll hold a 6-1 majority. So, the judicial stakes are high, and the Democrats want voters to understand the significance of the “boneless wings” decision.
Let’s break the case down and I’ll help define some terms as we go.
Facts of the case:
Michael Berkheimer was dining with his wife and some friends at the Wings on Brookwood Restaurant in Butler County, Ohio. He ordered his usual fare of boneless wings with garlic parmesan sauce. There was no warning on the menu that the boneless wings could contain bones.
He followed his normal practice of cutting each boneless wing into two or three pieces. When eating the last piece of a wing, he felt a piece of meat lodge in his throat He went to the restroom to try to get it up but was unsuccessful.
Over the next couple of days, Berkheimer became feverish, and he was unable to keep food down. He then went to the emergency room where the doctor found a thin chicken bone “lodged in his esophagus.”
Berkheimer claimed the bone tore his esophagus and caused a bacterial infection in his thoracic cavity causing “ongoing medical issues.” He sued the restaurant, the restaurant’s chicken supplier and the supplier’s source. He sued for negligence, breach of warranty, adulterated food, misbranded food and violations of the Ohio Deceptive Trade Practices Act.
The trial court ultimately granted a summary judgment against Berkheimer and in favor of the restaurant, the supplier and supplier’s source. In a summary judgment, a judge decides a civil case without a trial. To award a summary judgment, the court must find that there are no material issues of fact and that the winning party should win as a matter of law.
Berkheimer appealed the rebuff to the 12th District Court of Appeals and lost. Ultimately, the case worked its way to the Ohio Supreme Court.
Breaking down the case
Majority opinion
To prove negligence against the restaurant, supplier, and original seller, Berkheimer needed to prove that the defendants had a duty to the him, that they breached that duty, and that an injury was proximately caused by that breach. (In legal terms, duty refers to an obligation to take reasonable steps to avoid careless acts that could foreseeably cause harm to others.)
First, the court decided that this case was appropriate for a summary judgment because, in the court’s opinion, there were no unresolved issues of any material fact and the defendants were entitled to win the case as a matter of law. The dissenting Democratic justices disagreed.
To find for the defendants the court made this statement:
To determine whether a supplier of food breached its duty of care by failing to eliminate an injurious substance from the food, we look to whether the presence of the substance was something that the consumer could have reasonably expected and thus could have guarded against. And whether the substance was foreign to or natural to the food is relevant to determining what the consumer could have reasonably expected.
In short, the court said that Berkheimer should have expected bones in boneless chicken wings because chickens have bones. Justice Deter, writing for the majority, concluded that Berkheimer should have guarded against eating a bone regardless of the term “boneless” on the menu.
The court also decided that this was not a question for a jury to decide because it is obvious that “reasonable minds” would conclude that the defendants did not breach a duty of care.
Dissent
The three Democratic justices joined in writing a dissenting opinion, an opinion that disagrees with the majority but has no actual bearing on the law.)
The dissenters claimed that judges should not have determined the case, as a matter of law, but instead that the case should have gone to a jury for determination.
Justice Donnelly wrote in the dissent: “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 — 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.’”
The dissenting justices argued the case should have gone to a jury to determine if it was reasonable for Berkheimer to expect bones in his boneless wings and whether he could have reasonably avoided the one that lodged in his throat.
Justice Donnelly compared the majority opinion to a Lewis Carroll piece of fiction, calling the majority’s language “jabberwocky.”
Conclusion
The harsh language between the majority and the dissent underscores the political divide on the Ohio Supreme Court and the influence of partisan politics on the court and its decision making. With November approaching, the “boneless wings” case could resonate with voters, influencing the upcoming election.
