As Foghorn Leghorn warned “This is going to cause more confusion than a mouse in a burlesque show.”
The Ohio Supreme Court just ruled that selling a boneless chicken dish does not mean that it is boneless because it is referring to a “cooking style not a guarantee.”
In my torts class, I teach food contamination and liability cases. One of the rules that we discuss is the reasonable consumer expectation test on finding objects or contaminants in food.
Some states apply a foreign-natural test in addition to the test based on reasonable consumer expectations. Under the “foreign-natural test,” a consumer can recover if the contaminating element is a foreign as opposed to a natural substance. Thus, bones are commonly known to be present in chickens. Under the expectations test, the consumer must show that she did not reasonably expect such contaminants.
The Ohio Supreme Court just issued a ruling amplifying that rule in Berkheimer v. REKM L.L.C. It affirmed a lower court judgment against a customer who sued a restaurant for negligence over an injury allegedly sustained by a chicken bone found in an order of “boneless wings.”
Justice Joseph T. Deters wrote for a four-justice majority and explained the facts and holding:
Michael Berkheimer sued a restaurant, its food supplier, and a chicken farm after he suffered serious medical problems resulting from getting a chicken bone lodged in his throat while he was eating a “boneless wing” served by the restaurant. The trial court determined that as a matter of law, the defendants were not negligent in serving or supplying the boneless wing, and the Twelfth District Court of Appeals affirmed that judgment.
Berkheimer contends that the court of appeals focused on the wrong question—whether the bone that injured him was natural to the boneless wing—in incorrectly determining that the restaurant did not breach a duty of care in serving him the boneless wing. Berkheimer maintains that the relevant question is whether he could have reasonably expected to find a bone in a boneless wing. And he argues that the resolution of that question should be left to a jury.
We conclude that the court of appeals got it right. In a negligence case involving an injurious substance in food, it is true—as Berkheimer argues—that 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. The court of appeals correctly applied this blended analysis in determining that there was no material question of fact about whether Berkheimer could have reasonably expected a bone to be in the boneless wing and thus could have guarded against it. We therefore affirm the judgment of the Twelfth District.
The key to the decision is that “boneless” does not actually mean boneless, but in the style of boneless chicken:
Berkheimer protests that the court of appeals did not give due consideration to the fact that the food item was advertised as a “boneless wing” and that there was no warning given that a bone might be in the boneless wing. Regarding the latter argument, 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.
The dissent wonders what would happen in cases involving food that was advertised as lactose-free or gluten-free. Obviously, such cases are not before us. But unlike the presence of the bone in this case, the presence of lactose or gluten in a food that was advertised as lactose-free or gluten-free is not something a consumer would customarily expect and be able to guard against.
In dissent, Justice Michael Donnelly wrote with two joining colleagues that this not only undermines the jury system, but the holding was all for the birds:
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.” Majority opinion at ¶ 23. Jabberwocky. There is, of course, no authority for this assertion, because no sensible person has ever written such a thing. The majority opinion also states that “[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.” Id. at ¶ 23. More utter jabberwocky. Still, you have to give the majority its due; it realizes that boneless wings are not actually wings and that chicken fingers are not actually fingers.
The majority’s burst of common sense was short-lived, however, because its opinion also says that no person would conclude that a restaurant’s use of the word “boneless” on a menu was the equivalent of the restaurant’s “warranting the absence of bones.” Id. Actually, that is exactly what people think. It is, not surprisingly, also what dictionaries say. “Boneless” means “without a bone.” . . .
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. . . . Instead of applying the reasonable expectation test to a simple word—”boneless”—that needs no explanation, the majority has chosen to squint at that word until the majority’s “sense of the colloquial use of language is sufficiently dulled,” In re Ohio Edison Co., 2019-Ohio-2401, ¶ 67 (DeWine, J., concurring), concluding instead that “boneless” means “you should expect bones.”
In other words, as Foghorn would say, “You’re way off, I say you’re way off this time son!”
The fact is that the majority decision is in line with many other courts which have long rejected liability for bones in food. Thus, In Mix v. Ingersoll Candy Co., 6 Cal.2d 674, 676 (1936), a customer was injured when he swallowed a chicken-bone fragment that was in a chicken pie. The court distinguished between “the presence in food of bones which are natural to the type of meat served” and “the presence of a foreign substance, or an impure and noxious condition of the food itself, such as for example, glass, stones, wires or nails in the food served, or tainted, decayed, diseased, or infected meats or vegetables.”
However, in Mexicali Rose v. Sup. Ct.(1993), the court partially overturned Mix and ruled that there can be a negligence action against a restaurant for the failure to exercise due care in food preparation.
It barred strict liability on the basis that restaurants “owe no duty to provide a perfect enchilada.”
Confused? That is why Foghorn warned you: “Now that, I say that’s no way for a kid to be wastin’ his time, readin’ that long-haired gobbledegook”
Indeed, there are no bones about it.
In Other News, “Ohio Supreme Court issues Clarification that Hot Dogs and Hush Puppies need not contain Puppies.”
The state attorney general vows to open an investigation of the dessert maker Hostesss as to “who put the Ram in the ramalama Ding Dongs“
Darren—excellent points, sir. And in my experience, I’ve never found a Ph.D. in my Dr. Pepper (nor have I found a physician, come to think of it)
Except no one expects “puppies” in hot dogs or hush puppies. People do actually expect boneless wings not to have bones in them. The foreign v. natural test has been out of favor since the 90s and has largely been replaced by the consumer expectation test. Ohio seems to have ignored decades of jurisprudence from other states in favor of an older and frankly inferior test.
This non-boneless boneless chicken case illustrates what happens when so-called “lawyers” are trained by so-called “law” schools that are really Leftist Indoctrination Entities (aka “LIEs”). Law becomes not some standard to abide by but a form of mental masturbation in which various conmen, conwomen, and contransers engage in rubbish discourse masquerading as legal analysis to justify their predetermined decisions.
But, in a genuine way, such fake-law has been practiced long before the Marxists came to take over, control, and transform the instititions of higher learning into Leftist Indoctrination Entities that teach students that lies are good, especially when they can be used to justify stealing the property of others and causing grave damages without consequences.
Consider the masterpiece macabre short story, “My Favorite Murder,” by the great American writer Ambrose Bierce. Here is the introduction to it:
My Favourite Murder
Having murdered my mother under circumstances of singular atrocity, I was arrested and put upon trial, which lasted seven years. In summing up, the judge of the Court of Acquittal remarked that it was one of the most ghastly crimes that he had ever been called upon to explain away.
At this my counsel rose and said:
“May it please your honour, crimes are ghastly or agreeable only by comparison. If you were familiar with the details of my client’s previous murder of his uncle, you would discern in his later offence something in the nature of tender forbearance and filial consideration for the feelings of the victim. The appalling ferocity of the former assassination was indeed inconsistent with any hypothesis but that of guilt; and had it not been for the fact that the honourable judge before whom he was tried was the president of a life insurance company which took risks on hanging, and in which my client held a policy, it is impossible to see how he could have been decently acquitted. If your honour would like to hear about it for the instruction and guidance of your honour’s mind, this unfortunate man, my client, will consent to give himself the pain of relating it under oath.”
The district attorney said: “Your honour, I object. Such a statement would be in the nature of evidence, and the testimony in this case is closed. The prisoner’s statement should have been introduced three years ago, in the spring of 1881.”
“In a statutory sense,” said the judge, “you are right, and in the Court of Objections and Technicalities you would get a ruling in your favour. But not in a Court of Acquittal. The objection is overruled.”
“I except,” said the district attorney.
“You cannot do that,” the judge said. “I must remind you that in order to take an exception you must first get this case transferred for a time to the Court of Exceptions upon a formal motion duly supported by affidavits. A motion to that effect by your predecessor in office was denied by me during the first year of this trial.
“Mr. Clerk, swear the prisoner.”
. . .
Congrats, this is probably the dumbest thing I’ll read all summer (your first two paragraphs, not the Bierce story).
Coming from you that’s a compliment. It’s always a please to hear from the Dunceocrat community. We don’t hear nearly enough from you.
See, it’s funny because you said DUNCEocrat instead of DEMocrat…
Kamala “Childless” Harris, through her decade-long amorous intrigue with the married-with-children political benefactor, Willy Brown, constitutes the origin of the ghetto term in Ebonics,
“HO!”
How is that relevant to the article about boneless chicken?
While the Leftist Dunceocrats like to claim that President Donald J. Trump is a “convicted felon,” that phrase has now been rendered meaningless by the lawfare BS tactics of the Dunceocrats. The following case is a typical of Cackles, who is purportedly running for president as the Dunceocrats best possible candidate:
Despite no physical evidence linking him to the crime, Jamal Trulove was convicted and sentenced to 50 years to life by Kamala Harris. This was not only overturned on appeal, but Jamal was awarded $13 Million dollars for Kamala Harris sending an innocent man to prison. Here is his story . . .
Fauxcahontas, Cackles, and Cankles walk into a bar . . .
Yet, Hillary, in 2016 got more votes than Trump, and Kamala, in 2020, beat Trump’s ass and will do so again. Kamala calls him a “convicted criminal”, and he calls her “garbage”, even though she is our sitting Vice President, Trump said that voters aren’t going to “buy” the criticism that he’s a convicted criminal–there’s nothing to “buy”–he IS a convicted criminal. So keep up the hate and misogyny–it helps because most Americans are not ignoramuses like you who, because they have no substantive means of responding to Trump’s overwhelming lack of qualifications and the dangers of Project 2025, so they resort to name-calling.
If Trump were convicted of murder, rape, or kidnapping, Democrats would say that he’s a murderer, rapist, or kidnapper rather than saying that he’s a convicted felon. He say that he’s a convicted felon because it sounds better than saying that he lied on a loan application, obtained and repaid the loan.
Trump never lied about anything on a loan application. Name one lie that Trump committed on a loan application. Just one. You can’t. Even Arthur “the Moron” Engoron couldn’t. He said that Mar a Lago was worth only $18 million, but everyone knows that’s pure, unadulterated BS. Well, actually, it’s more putrid than BS, which at least has value as fertilizer. So, name one lie or shut up.
This illustrates why people, even with vast technical or scientific credentials and a supremely logical opinion, often fear to make a point in public. When you leave the ultimate decision to the legal industry and legal logic crazy happens.
Trump says “That means defeating Kamala Harris in a land slade”
I’m not sure about a “land slade” but I do believe it will be a landslide victory for Kamala against the convicted felon Trump and his mini me JD.
Landslide vistory for Cackles?
On Bizarro World, yes. But not on Planet Earth.
Unless you’re Islamist, transgender, or a DEI fiend you’ll eventually learn the hard, slow way if the Woke crowd prevails. Maybe even if you’re one of those.
I have never heard of a cooking style called ‘BONELESS’.
I’m still looking for that 99 Boneless Recipes cook-book.
I would like to add that the reasonable consumer expectation upon seeing ‘BONELESS’ Chicken on the menu would be to think that BONELESS referred to the
CONTENT of the meal & NOT THE COOKING STYLE.
Also there maybe consumers who have medical issues regarding swallowing & for whom ‘BONELESS’
could be a form of dangerous False Advertising if in fact their meal contains BONES !
Nobody said “boneless” is a cooking style. But “boneless wings”, as a compound phrase, is a term of art, a description of a dish that is not wings, and although it has far fewer bones than wings do, usually none at all, doesn’t guarantee that.
BS
Refer to ‘Boneless’ recipes by cooking experts !
Again, NOBODY SAID “boneless” is a cooking style. Literally nobody. The court did NOT say that. It correctly said that “boneless wings” is a cooking term, a term of art, and does not mean wings that have been deboned. That is very obviously true, you can’t deny it. “Boneless wings” AREN’T WINGS. So why should they be boneless?
I agree with the dissent. Boneless should mean boneless.
Then should wings mean wings?! Why is “boneless” a more important part of the name than “wings”? Everyone knows that “boneless wings” are not wings. Everyone knows that it’s the name of a dish, just like “toad in the hole”, which involves neither toads nor holes.
Not unlike gender identification. Merely a style, but no guarantee. Shop carefully going forward, ya’ll.
Getting a bone stuck in your throat is a very serious matter indeed.
Jabberwocky aka payola
Don’t inhale your food, chew it first.
The ruling is boneheaded!
Only in America:
“Boneless” means boney,
“Boneless wings” means breast meat with bones added,
“Left” means dictatorial.
Left is a direction or orientation to a position.
“Leftists” on the other hand, is totalitarian.
Ahh yes, benson. Idioms from an idiot.
The last one is true world wide.
Trump: You have to get out and vote. You won’t have to do it anymore. Four years, it will be fixed, it will be fine. You won’t have to vote anymore.. In four years, you won’t have to vote again.
He also added “I’m not a Christian “, as if anybody thought he was.
“I’m not a Christian”
The Left, yet again, making stuff up. He never said that.
And, yet again, smearing via the dishonest tactic of dropping the context:
“You won’t have to vote anymore”
The context for that statement is the fact that those Christians have historically been *reluctant* voters. Do it this time, Trump urges. We’ll fix the mess the Left created. And then in the future, we won’t have to pester you to do that which you don’t like doing.
That view may be true or false. But it’s not the dictator quote the Left keeps yearning for.
“Trump says Secret Service to step up protections on outdoor rallies”
https://thehill.com/homenews/campaign/4795972-trump-rallies-secret-service/
“I WILL CONTINUE TO DO OUTDOOR RALLIES, AND SECRET SERVICE HAS AGREED TO SUBSTANTIALLY STEP UP THEIR OPERATION,” Trump said in a Truth Social post. “THEY ARE VERY CAPABLE OF DOING SO. NO ONE CAN EVER BE ALLOWED TO STOP OR IMPEDE FREE SPEECH OR GATHERING!!!”
He’s right, of course, to defend First Amendment rights to free speech and assembly, but at this point, trusting Fake President Joetard’s Secret Service to provide protection is like trusting Hillary to guard the last box of cupcakes — or even the first box of cupcakes.
Otherwise, my being a Trump supporter doesn’t preclude me from noticing and bemoaning the all-caps and multiple exclamation points that make this post by Trump look like the product of one of the less-educated trolls that loiter in this comment section all day every day, proud and boastful of their deficient grammar-school schooling. I don’t know who started this silly trend of multiple exclamation points, but I hope to hell that Trump didn’t pick up this silly habit from reading this comment section, because ignorance is more-contagious than smallpox.
People that use multiple exclamation points might just as well pull out pistols and fire shots to punctuate their remarks:
“People that use multiple exclamation points might just as well pull out pistols and fire shots to punctuate their remarks:“
And people that use juvenile names like “Joetard” are small minded
Well said!!!
(not really)