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* A.P.…
Consumers cannot expect boneless chicken wings to actually be free of bones, a divided Ohio Supreme Court ruled Thursday, rejecting claims by a restaurant patron who suffered serious medical complications from getting a bone stuck in his throat.
Michael Berkheimer was dining with his wife and friends at a wing joint in Hamilton, Ohio, and had ordered the usual — boneless wings with parmesan garlic sauce — when he felt a bite-size piece of meat go down the wrong way. Three days later, feverish and unable to keep food down, Berkeimer went to the emergency room, where a doctor discovered a long, thin bone that had torn his esophagus and caused an infection.
Berkheimer sued the restaurant, Wings on Brookwood, saying the restaurant failed to warn him that so-called “boneless wings” — which are, of course, nuggets of boneless, skinless breast meat — could contain bones. The suit also named the supplier and the farm that produced the chicken, claiming all were negligent.
In a 4-3 ruling, the Supreme Court said Thursday that “boneless wings” refers to a cooking style, and that Berkheimer should’ve been on guard against bones since it’s common knowledge that chickens have bones. The high court sided with lower courts that had dismissed Berkheimer’s suit.
* Justice Michael P. Donnelly wrote in dissent…
The question must be asked: Does anyone really believe that the parents in this country who feed their young children boneless wings or chicken tenders or chicken nuggets or chicken fingers expect bones to be in the chicken? Of course they don’t. When they read the word “boneless,” they think that it means “without bones,” as do all sensible people. That is among the reasons why they feed such items to young children. The reasonable expectation that a person has when someone sells or serves him or her boneless chicken wings is that the chicken does not have bones in it. […]
But I am convinced that Berkheimer should be able to present evidence of their negligence to a jury. Jurors likely have eaten boneless wings, some will have fed boneless wings to their children, and jurors have common sense. They will be able to determine, better than any court, what a consumer reasonably expects when ordering boneless wings.
* Ohio Dems response…
Against all logic, Republicans on the Ohio Supreme Court ruled boneless wings can apparently have bones in them.
We can’t have a high court that molds the law to fit their political agenda. We deserve justices who stand for working Ohioans and our rights. pic.twitter.com/04woJJumBd
— Ohio Dems (@OHDems) July 25, 2024
* Ohio State Rep. Elliot Forhan emailed colleagues with this co-sponsor request this morning…
Colleagues,
I will soon introduce a bill to remedy a grave injustice coming out of our state Supreme Court. Justice Joe Deters says if your boneless chicken wings have bones and you suffer horrific life-altering injuries as a result, too bad.[1] You should have expected bones in your “boneless” chicken wings.
This has far greater negative consequences to Ohioans than simply putting a damper on snacking while we watch football. What does this tell Ohio’s moms and dads? If a kid gets hurt by a bone in a McNugget, Ohio law says that’s just fine. This cannot be the law. We cannot close the courtroom doors to those who are harmed by others.
Kids don’t expect McNuggets to have bones in them. Moms and dads don’t expect chicken fingers to have bones in them. Grown men don’t expect boneless wings to have bones in them. It’s right in the name. Boneless.
The gentleman in this case was horrifically injured. He had to have surgeries and suffered infections that changed his life forever. I can’t believe we need to put this in the statutory code of Ohio, but the bill will simply state that boneless means boneless. And companies that harm their customers will be liable.
If you would like to serve as a co-sponsor of the legislation, then please notify me by the close of business on Tuesday, July 30, 2024.
Thoughts?
posted by Isabel Miller
Friday, Jul 26, 24 @ 10:54 am
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This is the type of (court ruling) life conservatives have wanted for everyone else
Only going to get worse before it gets better
Conservative judiciary for the next 20 years 😅
Comment by halving_fun Friday, Jul 26, 24 @ 10:59 am
Goodness sounds life and death! Like everything in politics these days. We can’t even eat wings without mortal danger now. Guess they need to grind that meat more (yikes) and put a giant disclaimer on the menu.
Comment by 44 Friday, Jul 26, 24 @ 11:00 am
This wouldn’t happen if JB Pritzker was still governor of Ohio.
Comment by Michelle Flaherty Friday, Jul 26, 24 @ 11:01 am
This man in Lincoln Nebraska was ahead of his time
https://m.youtube.com/watch?v=cAV8bdsnDDc
Comment by that’s bettor Friday, Jul 26, 24 @ 11:04 am
Mark your calendars, we have officially reached the point in this country where everything is partisan issue.
Comment by Parlay Player Friday, Jul 26, 24 @ 11:05 am
The real issue is that boneless wings are not wings and are terrible. Just eat regular wings.
Comment by Excitable Boy Friday, Jul 26, 24 @ 11:08 am
Now now peasants, we can’t have you all getting bent out of shape about your leaders not wanting our glorious business owning gentry being inconvenienced by little things like “not harming consumers” or “correctly identifying what their product is”. That sort of anarchy would destroy our entire way of life! -The conservative members of the Ohio Supreme Court (probably).
Comment by VK Friday, Jul 26, 24 @ 11:08 am
Look, I know this is an easy thing to crack jokes about, but the fact of the matter is that this is such an absolutely and blatantly anti-consumer ruling that it is honestly stunning. The court literally said that consumers don’t expect, need, or have a realistic expectation for an item specifically labeled as boneless to not have bones.
This is a massive watering down of basic consumer rights and gives a green light for advertising and basic product packaging to so blatantly lie that there’s no legitimate argument for the ruling other than it makes it easier for business to make money. Not to mention that it absolutely throws any judicial adherence to a concept of common sense or realistic expectations out the window.
Comment by TJ Friday, Jul 26, 24 @ 11:09 am
Dang, maybe I’m turning into a democrat. Another partisan issue I agree with them(bp)
Comment by Lurker Friday, Jul 26, 24 @ 11:10 am
The answer is fake meat. Beyond Meat Chicken doesn’t have bones.
Comment by Formerly Unemployed Friday, Jul 26, 24 @ 11:11 am
What else could be argued as a cooking style?
Nuts? Adding nuts is just a cooking style. Dairy? Adding dairy is just a cooking style. Shellfish? Adding shell fish is just a cooking style. Botulism? Botulism is just a cooking style.
===we have officially reached the point in this country where everything is partisan issue===
The manner in which our country empowers judges is inherently political. How would you like to discuss whatever ideological basis causes a small group of powerful lawyers to suggest that when you order a “boneless wing” you should be expecting to eat bones?
How should we understand this concern if it is not to be political?
Comment by Candy Dogood Friday, Jul 26, 24 @ 11:15 am
Stainless steel still rust it just rust less.
I guess it’s the same with boneless.
Comment by The Dude Friday, Jul 26, 24 @ 11:15 am
Maybe should also be a question of the day, have you ever had a bone in a boneless chicken wing, chicken nugget, or chicken tender. I certainly haven’t and I think I’ve consumed enough for a large enough sample size.
Comment by Blitz Friday, Jul 26, 24 @ 11:16 am
And so ends the saucy nugg craze.
Comment by Politix Friday, Jul 26, 24 @ 11:17 am
They’re both wrong. Boneless wings are nuggets and/or chicken strips. They can’t have bones, and also should not be called wings.
Comment by fs Friday, Jul 26, 24 @ 11:19 am
See also the mouthwatering Massachusetts fish chowder case of Webster v. Blue Ship Tea Room: “[t]his court knows well that we are not talking of some insipid broth as is customarily served to convalescents.” http://masscases.com/cases/sjc/347/347mass421.html
Comment by Barnaby Wilde Friday, Jul 26, 24 @ 11:22 am
@Candy. I don’t see how you can say with any certainty that a court with a different political affiliation would have reached a different conclusion.
Comment by Parlay Player Friday, Jul 26, 24 @ 11:24 am
Interesting case. I remember similar case in the introductory Torts class in law school 30 yrs ago. But was about bone found in a fish stew. Easier case obviously.
This Ohio case is 3 years of law school in a nutshell. What is reasonable? That’s what every case boils down to. That’s really all law school is. Shhhh that’s a secret.
Is it reasonable to expect occasional bone in boneless wings? Courts at all levels there obviously think so.
I guarantee there are many on point cases on this topic in every state going back to beginning of time. Hardly some radical ruling out of thin air. Possibly the advertising made it slightly unique.
Comment by Law office of Dewey, Cheatum & Howe Friday, Jul 26, 24 @ 11:25 am
Further review finds that the spineless Ohio Supreme Court is in fact … spineless.
Comment by Michelle Flaherty Friday, Jul 26, 24 @ 11:33 am
As a parent, the first thing I thought about when I heard this ruling was what the dissent pointed out about parents specifically seeking boneless chicken to feed kids chicken without bones.
Hopefully there is enough backlash to this ruling that their state legislature is forced to act.
As for the notion that there’s no way of knowing if a court with a different political affiliation might have ruled differently, come on.
The four justices on the majority taking the side of the big business food company were Republicans and the three justices taking the side of the consumer/plaintiff’s attorney side of things were the Democrats. That’s just typical stuff.
Comment by hisgirlfriday Friday, Jul 26, 24 @ 11:37 am
@The Dude Good point. Reminds me of just how much “other” is allowed in things like hot dogs but carefully overlooked by people with a squeamish stomach.
Comment by Former ILSIP Friday, Jul 26, 24 @ 11:40 am
Considering that members of the GOP no longer have backbones, this ruling starts to make some sense.
Comment by Henry Francis Friday, Jul 26, 24 @ 11:40 am
“When I use a word”, Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”
“The question is”, said Alice, “whether you can make words mean so many different things.”
Comment by TheInvisibleMan Friday, Jul 26, 24 @ 11:40 am
==Goodness sounds life and death! Like everything in politics these days. We can’t even eat wings without mortal danger now. Guess they need to grind that meat more (yikes) and put a giant disclaimer on the menu.==
From the bottom of this post:
==The gentleman in this case was horrifically injured. He had to have surgeries and suffered infections that changed his life forever==
So, yeah, sounds like it approached life-or-death.
By the way, if you’re still of the mind that the McDonald’s hot coffee lawsuit was frivolous and a sign of our overly litigious culture, I recommend digging in on that a bit, too. Lady suffered third-degree burns and spent eight days in the hospital undergoing skin grafts.
Comment by Roadrager Friday, Jul 26, 24 @ 11:48 am
Next thing you know, they’re going to expect chicken in their wings.
Comment by Bruce( no not him) Friday, Jul 26, 24 @ 11:51 am
At first the story reminded me of the Monty Python “crunchy frog” candy sketch. But it quickly veered into Upton Sinclair “The Jungle “ territory. What we are seeing is more and more regulatory capture in consumer products. The big businesses just don’t want to follow health standards any more because it’s costly to make food that meets a standard of purity. The court is taking a pro business, pro conservative view and abandoning public safety in the name of profit, with a very weak excuse.
Today it’s lax quality control on the chicken nuggets , ha ha, very funny. But if it continues, pretty soon it’ll be more and more serious. And food safety is a fundamental function of government services. Ever since Sinclair’s book.
Comment by Give Us Barabbas Friday, Jul 26, 24 @ 11:54 am
I think that I might agree with the court here. The actual argument is much more nuanced than it’s generally being portrayed. Under Ohio tort law, a restaurant has a duty to guard against injurious substances in food. A bone in a meat product is not, in itself, an injurious substance. Chicken bones are not inherently dangerous. People eat wings with bones all the time (some would argue that’s the only proper way to eat wings). There is no general “this-isn’t-what-I-ordered” tort.
Comment by Duck Duck Goose Friday, Jul 26, 24 @ 11:59 am
== I think that I might agree with the court here. The actual argument is much more nuanced than it’s generally being portrayed. Under Ohio tort law, a restaurant has a duty to guard against injurious substances in food. A bone in a meat product is not, in itself, an injurious substance. Chicken bones are not inherently dangerous. People eat wings with bones all the time (some would argue that’s the only proper way to eat wings). There is no general “this-isn’t-what-I-ordered” tort. ==
Only problem is that boneless wings are universally understood to be food items that you can pop into your mouth, crunch down on, and quickly swallow. There absolutely is a reasonable expectation that there would be no choking hazards or anything that you could chip your tooth on contained within, like, say, a bone. In that circumstance for this type of food, a bone is absolutely an injurious substance.
Comment by TJ Friday, Jul 26, 24 @ 12:04 pm
===Chicken bones are not inherently dangerous. People eat wings with bones all the time.===
The plaintiff specifically ordered boneless wings. And the bone inside one of his boneless wings did some major damage. The court ruling prevents a jury from hearing the facts in the case and making a ruling on those facts as instructed by the law.
Comment by 47th Ward Friday, Jul 26, 24 @ 12:10 pm
In Illinois, Jackson v. Nestle-Beich, in 1992, the Illinois Supreme court ruled Plaintiff who allegedly broke tooth on hard pecan shell while biting into chocolate-covered pecan-caramel candy brought suit against candy manufacturer, asserting count based on breach of warranty theory and count based on products liability. The Circuit Court, Madison County, Lola P. Maddox, J., granted defendant’s motion for summary judgment, and plaintiff appealed. The Appellate Court, Fifth District, 212 Ill.App.3d 296, 155 Ill.Dec. 508, 569 N.E.2d 1119, reversed and remanded. Manufacturer appealed. The Supreme Court, Freeman, J., held that the reasonable expectation test, rather than the foreign-natural doctrine, would be used to determine liability of vendor of food product for injuries caused by ingredient in the food.
Food processors and manufacturers are subject to “reasonable expectation” test that, regardless whether substance in food product is natural to ingredient thereof, liability will lie for injuries caused by the substance where the consumer of the product would not reasonably have expected to find the substance in the product; “foreign-natural” doctrine is no longer applicable.
Comment by Facts Matter Friday, Jul 26, 24 @ 12:16 pm
Caveat emptor with buffalo sauce on it.
Comment by Norseman Friday, Jul 26, 24 @ 12:23 pm
“But ossifer — shober is shober is shober is jusht a ‘driving shtyle’…”
– MrJM
Comment by @misterjayem Friday, Jul 26, 24 @ 12:28 pm
From now on, red state boneless wings must come with an edible warning label proclaiming:
Comment by Norseman Friday, Jul 26, 24 @ 12:30 pm
Reading a bit of the dissent, it seems it was a small piece (5 cm or just under .2 of an inch), so it wasn’t a large piece and could have easily not been noticed when chewing.
The “wings” were made from cutting up boneless chicken breasts at the restaurant. So it wasn’t a pre-made wing that the restaurant just cooked up.
I get that in these situations, you sue everyone, but I don’t know why the farm should have been in the litigation at any point. I also get that perhaps it should be up to a jury to decide that there is some assumed risk anytime you eat meat that there may be ‘other stuff’ in it.
I also think that a reasonable adult understands that there is always a risk of something (a bit of bone, gristle, etc) being in a bite of processed food. So the expectation is that there isn’t going to be a small ’something’ in it (even if it is a really tough piece of chicken).
Both sides kind of make sense here on the argument, but I don’t see how this is part of some bigger GOP plot.
Comment by OneMan Friday, Jul 26, 24 @ 12:36 pm
I disagree with the court. Something labeled as boneless should not have bones in it. But I think the patron has some sort of responsibility to properly chew their food. How could you not know there was a “long, thin bone” in a bite? And substantiating that the bone removed from the patron actually came from that meal…?
Comment by Ducky LaMoore Friday, Jul 26, 24 @ 12:43 pm
Of course people who eat whole wings, eat wings with bones in them. But they are expecting them to be there. So they take caution. If a fancy shmancy chicken nugget has bones, it could be more dangerous as folks aren’t expecting them to be there. I guess they will expect it now.
I wonder what the wing joint in Hamilton Ohio is called? If the gentleman can’t file suit hopefully he can wreak a little vengeance by publishing that information.
Comment by cermak_rda Friday, Jul 26, 24 @ 12:49 pm
Wings on Brookwood would be the name of the insult to gastronomy.
Comment by cermak_rd Friday, Jul 26, 24 @ 12:50 pm
One Man, your math is off–a 5 cm bone would be almost 2 inches long.
Comment by KSDinCU Friday, Jul 26, 24 @ 1:00 pm
===a 5 cm bone would be almost 2 inches long===
Correct.
Comment by Rich Miller Friday, Jul 26, 24 @ 1:01 pm
I am shocked that conservatives who are so obsessed with the particulars of labels when it comes to other things (like say…gender) are so at ease with an inaccurate label on a food item. Wasn’t it Don jr who was so perplexed about how to define a woman? And now boneless doesn’t mean boneless? Specially given the possible double entendre at play? Color me unsurprised.
Comment by JS Mill Friday, Jul 26, 24 @ 1:03 pm
Unless the recent Chevron ruling throws out all food inspections, it appears that boneless should mean boneless.
See Page 71 (granted that piece is not a wing, but this statement appears frequently in the boneless section) - “There is no tolerance for bone or bone fragments in boneless skinless parts.”
https://www.ams.usda.gov/sites/default/files/media/PoultryPictureSeriesPrintVersion.pdf
And then there the top table on Page 3 stating there is no tolerance for bone or bone-like material in size reduced meat.
https://www.ams.usda.gov/sites/default/files/media/QAD%20645%20-%20Poultry%20Boneless%20Meat%20Defects.pdf
Comment by Anon221 Friday, Jul 26, 24 @ 1:09 pm
Michelle Flaherty at 1101am and JSMill at 103pm for the win.
I almost choked on my boneless chicken when I laughed.
Comment by Jerry Friday, Jul 26, 24 @ 1:15 pm