Berkheimer v. REKM Decision Says that Customers Should Reasonably Expect Bones in Boneless Wings

The Ohio Supreme Court recently issued a favorable decision for Ohio restaurants, food suppliers, and farmers regarding potentially injurious substances in food products. In Berkheimer v. REKM, L.L.C., slip opinion No. 2024-Ohio-2787, the court weighed in on whether a consumer should have reasonably expected and guarded against a one-inch bone in a “boneless” wing. In a 4-3 decision issued July 25^th, 2024, the court affirmed the trial court’s grant of summary judgment in favor of the defendants, finding that the restaurant patron who swallowed the bone should have reasonably expected such bone in his boneless wings and absolving the defendants of liability.[1]

In 2016, the plaintiff ordered wings labeled “boneless” on the menu at a restaurant owned by defendant REKM, LLC. The restaurant prepared the wings by taking boneless, skinless chicken breasts and cutting the breasts into one-inch chunks before being fried. While eating his boneless wings, the plaintiff felt discomfort in his throat. The plaintiff went to the emergency room three days later, and testing revealed a one-inch long bone that tore through the plaintiff’s esophagus.

The plaintiff filed suit against the restaurant, food supplier, and the chicken farm that the breast originated from, alleging negligence, breach of warranty, adulterated food, misbranded food, and violations of the Ohio Deceptive Trade Practices Act. The trial court granted the defendants’ motions for summary judgment, finding 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.” The Ohio Court of Appeals affirmed.

Reasonable-Expectation vs. Foreign-Natural Test – A Blend

In food-related product liability cases, states differ on the test used to determine negligence. A minority of states[2] follow the “foreign-natural” test, which looks at whether the substance at issue is foreign to the food or natural, such as a chicken bone to chicken.[3] Critics of the test find its harsh line “artificial” and argue that such “natural” objects not reasonably expected can cause as much harm as a foreign substance.[4] Another critique is that the test “assumes that all substances which are natural to the food in one stage or another of preparation are, in fact, anticipated by the average consumer in the final product served.”[5]

A majority of states[6] follow the “reasonable-expectation” test, examining whether a consumer would reasonably expect to find the substance at issue in the product.[7] Over the decades, the reasonable-expectation test has “largely displaced” the previously dominant foreign-natural test.[8] If a consumer could reasonably expect and guard against the substance at issue, then the food product at issue is not defective.[9] Proponents of the test argue that, unlike the foreign-natural test, the reasonable-expectation test “relies upon culturally-defined, widely shared standards that food products ought to meet… judges and triers of fact can sensibly resolve whether liability should be imposed...”[10]

The Ohio Supreme Court declined to follow either test in isolation, instead adopting a “blend” of the two. The test for an Ohio court to consider is whether “a reasonable consumer would expect to encounter and thus would guard against the injurious substance.” Whether the substance is foreign or natural will “usually be an important factor” in analyzing under the reasonable expectations test.

“Bone-headed” Reasoning?

In applying this blended test, the court found that the plaintiff should have reasonably expected and could have guarded against a bone in boneless wings. The court analogized the boneless wings to fish fillets, a product the court previously found a consumer should reasonably expect to find bones in. The court also noted the size of the bone relative to the one-inch boneless wing, which, “as a matter of law, he reasonably could have guarded against.”

Despite the fact that the menu did not warn that its boneless wings could contain bones, the court found that the label “boneless” was not a guarantee. Rather, it was a “common sense” description of the cooking style of the wings. The court concluded, “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 majority’s decision, dubbed “boneheaded” by local media,[11] was sharply critiqued by the dissent. The dissent described the majority opinion as “another nail in the coffin of the American jury system,” arguing that the court made a factual determination that should have been determined by a jury. The dissent accused the majority opinion of lacking common sense, stating, “The absurdity of this result is accentuated by some of the majority's explanation for it, which reads like a Lewis Carroll piece of fiction. The majority opinion states that ‘it is common sense that [the label “boneless wing”] was merely a description of the cooking style.’ Jabberwocky. There is, of course, no authority for this assertion, because no sensible person has ever written such a thing.”

Nevertheless, the Berkheimer decision represents a win for restaurants and food manufacturers. In states such as Ohio that consider the substance’s nature in applying the reasonable-expectations test, restaurants and manufacturers have more recourse to resolve natural-substance cases before they reach the trial stage.