In Berkheimer v. REKM, L.L.C.,[1] the Ohio Supreme Court determined that the presence of a chicken bone in a boneless wing does not make a food supplier negligent, as a matter of law, for injuries resulting from the chicken bone.[2] After following his usual practice of ordering parmesan garlic boneless chicken wings at a restaurant and cutting them into smaller pieces before eating them, Michael Berkheimer began to suffer a medical emergency.[3] Eventually, an emergency room doctor discovered a “5cm-long chicken bone” lodged in Berkheimer’s esophagus.[4]

Berkheimer sued the restaurant where he purchased the boneless wings and its suppliers, alleging that they “were negligent in producing, distributing, or serving a boneless wing with a bone in it.”[5] The trial court granted the defendants’ motions for summary judgment, “determining that common sense dictated that the presence of bone fragments in meat dishes—even dishes advertised as ‘boneless’—is a natural enough occurrence that a consumer should reasonably expect it and guard against it.”[6] The court of appeals affirmed the grant of summary judgment.

In affirming the trial court’s conclusion that Berkheimer should have reasonably expected and guarded against the chicken bone, “the court of appeals took into account that the boneless wings were prepared by cutting a chicken breast into one-inch pieces that were then fried. The court noted that the chicken had not been ‘ground or further manipulated prior to serving.’”[7] “The court of appeals also considered the size of the bone swallowed by Berkheimer, which it noted was approximately 1⅜ inches long.”[8] The court of appeals concluded that “[s]uch a bone is rather large given the description of the boneless wing’s size in the record, as well as Berkheimer’s decision to cut the wing into three bite sized pieces.”[9]

In his appeal to the Ohio Supreme Court, Berkheimer argued that the court of appeals erred by focusing on whether the bone that injured him was natural to the boneless wing instead of whether he could have reasonably expected to find a bone in a boneless wing.[10] The Ohio Supreme Court, however, affirmed the court of appeals, as its precedent combines the two questions into one test.[11]  In Ohio,

whether there was a breach of a duty of care by a supplier of the food depends on whether the consumer could have reasonably expected the presence of the injurious substance in the food and thus could have guarded against it. But that consideration is informed by whether the injurious substance is foreign to or natural to the food.[12]

The Berkheimer court reaffirmed the use of this combined test.[13]

Reciting the court of appeals’ factual considerations, the court, in a 4-3 decision authored by Justice Joseph Deters, determined that the court of appeals “properly conducted its review of the trial court’s summary-judgment decision, using the blended analysis that” the Ohio Supreme Court has adopted.[14] Additionally, the court rejected Berkheimer’s arguments that the lower court did not give due weight to the fact that the wings were advertised as boneless and that there was no warning given that there might be a bone in boneless wings. Regarding the latter argument, the Ohio Supreme Court noted,

a supplier of food is not its insurer. And regarding the food item’s being called a “boneless wing,” it is common sense that that label was merely a description of the cooking style. 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 food item’s label on the menu described a cooking style; it was not a guarantee.[15]

The Ohio Supreme Court said the lower court had “properly considered whether Berkheimer could have reasonably expected a bone to be in the boneless wing and thus could have guarded against it,” and “its consideration was appropriately informed by the fact that a bone is natural to a piece of a chicken breast.” Therefore, the court determined that “reasonable minds could come to but one conclusion—that [the defendants] did not breach a duty of care” to Berkheimer.[16]

Justice Michael P. Donnelly, joined by Justices Melody J. Stewart and Jennifer Brunner, dissented. The dissent posited that the majority “implicitly adopt[ed] the foreign-natural test as the factor rather than a factor in determining what amounts to a reasonable expectation.”[17] And with that adoption, “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.”[18] Because three justices dissented from the majority’s judgment, the dissent concluded that this determination was “patently untrue.”[19]

The dissent argued that the majority’s ruling “is another nail in the coffin of the American jury system.”[20] The dissent noted that

[t]he virtues of the jury system are often glowingly extolled, even by this court. Article I, Section 5 of the Ohio Constitution states that “[t]he right of trial by jury shall be inviolate.” This court has stated that “[t]he right of trial by jury should be as inviolate in the working of our courts as it is in the wording of our Constitutions.”[21]

To the dissent, “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.”[22] Although the dissent was not convinced at this stage that the defendants were “careless (or even negligent),” the dissent was “convinced that Berkheimer should be able to present evidence of their negligence to a jury.”[23]

[1] Berkheimer v. REKM, L.L.C., 2024-Ohio-2787 (Ohio 2024), available at https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2024/2024-ohio-2787.pdf.

[2] Id. ¶ 3.

[3] Id. ¶ 4.

[4] Id. ¶ 5.

[5] Id. ¶ 12.

[6] Id. ¶ 9.

[7] Id. ¶ 21 (quoting Berkheimer v. REKM, L.L.C., 2023-Ohio-116, 206 N.E.3d 90, at ¶ 27 (Ohio Ct. App. 2023), available at https://www.supremecourt.ohio.gov/rod/docs/pdf/12/2023/2023-Ohio-116.pdf.

[8] Berkheimer, 2024-Ohio-2787 at ¶ 22.

[9] Id. (quoting Berkheimer, 2023-Ohio-116 at ¶ 29).

[10] Id. ¶ 2.

[11] Id. ¶ 3.

[12] Id.

[13] Id. ¶ 18.

[14] Id. ¶ 20.

[15] Id. ¶ 23.

[16] Id. ¶ 25.

[17] Id. ¶ 35.

[18] Id. ¶ 27.

[19] Id.

[20] Id.

[21] Id. ¶ 31 (quoting Gibbs v. Village of Girard, 102 N.E. 299, 303 (Ohio 1913)).

[22] Id. ¶ 32.

[23] Id. ¶ 39.

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