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.
I think the point the court was trying to make was that “boneless wings” is a compound noun specifying the item to be served, and that boneless does not stand alone as an adjective describing the “wings” that aren’t even wings.
This decision is remarkable in that it concluded, as a matter of law, that no one could reasonably expect that “boneless wings” would not contain bones. In other words, only an unreasonable person could expect that. This was the basis on which a jury was not permitted to hear the case to reach its own conclusion about reasonable expectations. Maybe the jury would have come out the same way as the court, or maybe it would have come out the other way. But to say that it is unreasonable as a matter of law to have that expectation is extraordinary.
“The Law is a ass” – Somebody Famous
And those with law degrees seem to have difficulty figuring out why some people despise lawyers. I would submit this kind of “reasoning” as Exhibit A. I’m guessing that Tyson, or whoever the supplier was, has quite a large presence in Ohio, and contributes a great deal of money to charitable organizations favored by the legal profession, and, possibly, to individual judges’ retirement funds on the sly. It would be more understandable (if not conceded as justified) if the restaurant advertised the wings as “deboned”, they might have a legitimate argument that “deboned” could indicate the removal of bones, without a guarantee that none remained, but the decision of the majority is ridiculous and linguistically false, regardless of any precedent. Slice and dice the language until it is completely unintelligible, then the wannabe despots and abusers can get their way with impunity.
Boneless chicken wings is a lie. No quibbling about a distinction between bs and lies. Ads saying boneless is then fraud and unless it is clearly stated there may be bones as a caution the consumer reads and expects boneless.
Lies are unacceptable. Chicken wings cannot be advertised as boneless. They become chicken wings with bones and some without.
Prunes are pitted with a caution some may have pits. Does not contain peanuts, kosher foods, 16 oz is not 15 ounces.
Boneless chicken wings sort of or mostly Boneless chicken wings. The United States has a very high standard regarding foods and quality including weights and measures. Another descent into immorality and lies and another 🍌 for the boat.
PS: beef may or may not be from cows infected with mad cow disease and other various diseases including cancer. Enjoy your meal, America.
In short: boneless chicken wings is now a lie. Lies are unacceptable in the USA civilization and that includes everyone within its borders. This is true within commerce.
You’re free to lie any time you want as long as you don’t sell them nor mislead others for gain to yourself or another. That means simply- lying not permitted as a cultural standard.
I have an MD license sort of.
“Boneless Chicken(s)” … The Court was refering to:
Adam Schiff | Alexander Downer | Andrew McCabe
Andrew Weissmann | Andrew Whitney | Azra Turk
Barack Obama | Bill Taylor | Bruce Ohr
Charles H. Dolan | Christopher Steele | Christopher Wray
Cody Shear | Dana Remus | Don Berlin
Donna Brazile | E. W. Priestap | Eirc Holder
Emmet Sullivan | Eric Ciaramella | Evelyn Farkas
Fiona Hill | Gen. Milley | George Soros
Gina Haspel | Glenn Simpson | Hillary Clinton
Huma Abedin | Hunter Biden | Igor Danchenko
Jake Sullivan | James Baker | James Clapper
James Comey | James E. Boasberg | Jeff Sessions
Jerry Nadler | Joe Biden | John Brennan
John Kerry | John Podesta | Joseph Mifsud
Kadzic | Kathy Ruemmler | Kevin Clinesmith
Kurt Campbell | L. Jean Camp | Laycock
Lisa Page | Lois Lerner | Loretta Lynch
Marc Elias | Merrick Garland | Michael Cohen
Michael Kortan | Michael Sussmann | Mills
Nancy Pelosi | Nellie Ohr | Paul Vixie
Perkins Coie et.al. | Peter Fritsch | Peter Strzok
Raymod Epps | Richard Dearlove | Richard Schiff
Robby Mook | Rod Rosenstein | Rodney Joffe
Ron Klain | Sally Yates | Simpson
Stefan Halper | Strobe Talbot | Susan E. Rice
The Mueller-Team | Valerie Jarrett | Victoria Nuland
Etc. Etc. … | D.C. Uni-Chickens et.al. …
The Payoff Severance Packages are rolling out, now that Trumps moving back in.
Windfall: FBI Pays $2M to Strzok, Ex-Lover for Released Anti-Trump Texts
The FBI will pay disgraced former FBI official Peter Strzok and his former lover Lisa Page millions in a settlement over the release of their anti-Trump text messages, CNN reported on Friday.
By: Luis Cornelio ~ July 26, 2024
https://headlineusa.com/windfall-fbi-pays-2m-to-strzok-ex-lover-for-released-anti-trump-texts/
Think about this:
If Everyone on the list above receives a Payoff (Judgment) to keep their mouth’s shut (censorship through payoffs),
that’s a pretty penny to levy on the pockets of the U.S. People, and Hillary & Bill, Micheal & Barack, Jill & Joe, and all the Others, walk away collecting even more in retirement.
I think where I went wrong was by living an Honest life. …
Maybe the plaintiff was an avid Far Side Cartoon reader that really believed that the wings came from a boneless chicken ranch
Please remember that your hot coffee is hot. You might suffer burns from your hot coffee while it is still hot. Only drink your hot coffee when it is cool enough to drink.
That is all.
“. . . your hot coffee is hot.”
True.
But my iced coffee better not be.
Be careful as ice can cause burns. Just saying,,,
“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.” (from the majority)
That is a bizarre view of “common sense.”
In decades of being served and cooking both bone-in and boneless wings, I’ve never heard boneless described as a “cooking style.” A “style” of cooking is baking, frying, grilling, et al. You can use the same styles to cook bone-in or boneless.
So what “style”, exactly, is boneless supposed to mean?
“Boneless wing” is a term of art that means pieces of breast meat shaped a bit like wings. They are not wings, so they have not been deboned. And there is no guarantee that there are no bones.
Well, that is just dumb.
I have processed lived stock. If the cut I am doing is going to be “boneless,” it is boneless.
Technically, “boning” say a cornish hen, is de-boning it till only the drumstick bones remain.
Chicken “nuggets” are questionable as to what parts they are.
Commercially processed meat of any kind has to be eaten with care. More than a few times I have found a piece of bone still attached to store bought “boneless” chicken breast.
My favorite food advertising deception is a very large label on sweet item that screams out “NO SUGAR ADDED”. What they dont tell you of course is that the product is already laden with sugar.
Restaurants would be well-advised to post notices in their establishments and on menus that they serve food with the expectation that their customers will chew their food and not bolt gobbets like a famished hyena, choke on them, and then sue for exorbitant damages. Sometimes courts will reward stupidity and greed with a payday. But not this time.
It’s curious that Professor Turley didn’t mention anything about the legal concept of “contributory negligence” and how the entire incident might have been avoided if the plaintiff’s parents had succeeded years earlier in hammering into his non-boneless skull that there are ever-present dangers of choking if one doesn’t bother to CHEW one’s food. Proper chewing would have likely detected a hunk of bone large enough to choke on.
The first time I visited Toronto from sweet-home Cleveland, one of the first things my travel companion/old architecture school buddy and I did was grab a meal at an Italian restauranti — spaghetti, with meat sauce. And in the very first mouthful I found myself chomping down on what turned out to be a hunk of bone — causing me to comment to my friend, “I guess I should’a ordered the boneless spaghetti” — causing my friend to choke with laughter while spitting out a mouthful of half-chewed Canadian spaghetti.
The morals are two: (1) Always chew your food, and (2) always wait until your dinner companion has a mouthful before cracking an unexpected remark. I would have forgotten the entire incident decades ago if my friend Dean hadn’t coughed up that mouthful.
Anonymous 8:36AM-Love it. Very practical if somewhat predatory. Like letting someone else walk point.
I believe you are describing what’s known as a “spit take.”
I expect the father of justice Dewine, governor Dewine, will be getting a nice bump in campaign contributions from the restaurateurs and food processors next cycle. I can see how one justice could attempt to make an incredibly terrible decision based on fealty, a al sotomayor, but four a majority…that decision is noxious. These corrupt repubs have got to go, and the dems can’t seem to rid them, so let’s hope Trump will get on it.
RINO Governor DeWine is spent. There are no more terms in office for him, so likely no more campaign contributions.
He has already been a US Senator from Ohio — and failed at that, which is quite an accomplishment considering the advantage that incumbency brings. And he has already been Ohio Attorney General — and failed at that.
The ONLY reason he was ever elected governor is that democrats foolishly ran even-bigger losers against him.
I’m a lawyer, 40 years in 2 months, and have worked on, including tried, both personal injury plaintiff and defense cases, including a few years working mostly on product liability cases – I have no bias towards one side. I agree with the court.
I also eat boneless chicken. I never once thought, “Son, I say, Son, there’s a guarantee of no bones, here.” One hopes, of course, but that’s on us. I always thought I was getting a type of chicken I had to eat with a fork. There are policy reasons for product liability law, but we shouldn’t let it twist our plain language.
Here’s what people should take from it. Eat chicken and fish carefully and always suspect there could be a bone in there. Watch your kids’ food and teach them that.
Last, I note, I have choked too many times in my life, fortunately without fatality. It has always been my fault because I was eating too fast or not thinking about what I was doing.
By the way, I replied to you, the first on the line, because I could not find a way to reply directly to the article itself. No offense meant.
So how does the fact that the cooking method is boneless allow for bones in the meal?
“So how does the fact . . .”
Damn good question.
According to the majority, boneless is a style with bones.
Because as the court pointed out, “boneless wings” is a term of art. You don’t expect them to be wings, so why do you expect them to be boneless? They’re generally boneless because they’re pieces of breast cut off the bone; but there’s no guarantee.
“You don’t expect them to be wings, so why do you expect them to be boneless?”
Because the package advertises “boneless” — as in: without bones.
There are also precooked wings. Should I not expect them to be precooked, even though the package claims: precooked?
Nice non sequitur, though.
The “package” (what package? we’re talking about a restaurant dish) also advertises “wings”, but you don’t expect them to be wings, do you? So why is one part of this compound phrase more important than the other? The fact is that “boneless wings” is a term of art, not a literal description of the dish.
“. . . you don’t expect them to be wings, do you?”
Nice deflection, yet again.
The issue is “boneless” — as in: without bones.
You keep waving around the expression “term of art,” as if it’s a magic wand allowing a manufacturer to make fanciful claims.
If you make a claim that’s not true, and someone gets injured — you’re liable. It’s not that difficult.
And “wings”, as in: wings. Which everyone knows they are NOT. So why is the word “boneless” more important than the word “wings”? Would you entertain a lawsuit because I expected wings and I didn’t get any?! Terms of art, by definition, IS a “magic wand”, if you want to call it that, that DOES allow a manufacturer to describe a product in a way that is not literally true. Buffalo wings contain no buffalo. Toad in the hole involves neither toads nor holes. Likewise pigs in blankets, which involve neither bedding nor, in this country, necessarily any pig.
To reply to ‘the article’ use the Leave a Reply box all the way at the bottom of the page, after all the other comments.
Sued the chicken farm? reminds me of that Far Side cartoon about the boneless chicken farm
https://i.pinimg.com/originals/47/46/2e/47462e21deb92f18fc19948e712cfe43.jpg
WHAT DO YOU MEAN CHICKEN FINGERS ARENT FINGERS?!? THEN WHAT ARE THEY?
A marketing gimmick.
What’s a “Happy Meal”? A bovine that was self actualized and perfectly content before it was chopped up into hamburger?
That reminds me of a commercial where a mom is wondering “I wonder what part of the fish the sticks come from?”
A humorous case to all but the person with a bone to pick about the bone in his throat. Not the most pleasant thing to deal with as a victim or physician. That is a risk, though, with eating chicken. Just like the occasional bone in the fish.
The final admonition might be “always be careful with what you put in your mouth”
You should give her credit when you quote Stormy Daniels, although Monica Lewinsky might have said it first.
Had the plantif gone to trial and won the case all real damages would have gone to reimburse his medical insurance
All the plantif would have been able to keep was pain and suffering and punitive damages
It would have been better to allow this case to go to trial
But even then
The courts or appellate courts would have reduced pan and suffering and like eliminated punitive
That would have been a more correct outcome
The wings were advertised as boneless
That is on the restaurant
But Mr berkeimer ate the
Chewed them and swallowed them without noticing a bone
The restaurant has a duty
But the plaintiff is expected to excercise some self care
There is negligence on both parties
The plaintiffs insurance should be reimbursed
The plantif shoul receive a small pain and suffering award
And there should be no punative damages
The wings were advertised as boneless
No, they weren’t, because there were no wings. The dish was advertised as “boneless wings” because that is its common name, even though it contains no wings at all, and although it generally contains no bones that is not guaranteed.
Next you’ll complain that “baby chicken” isn’t actually from chicks, as “advertised”.
And who, may I ask, is the Chief Chef of the Ohio Supreme Court? When, may I ask, will this august body rule that moisturizer creams don’t have to moisturize – perhaps because moisture is a part of the manufacturing process?
LOL — Take THREE. I’d love to know what “civility rule” I’m breaking such that this comment wasn’t posted the first two tries:
Thank God. I was hoping that Professor Turley would get to the bottom of this urgent national controversy.
Who’s foolish enough to be interested in SCOTUS rulings about pending election problems, or FBI assassination attempts at political rallies, when we’ve got this urgent chicken issue hanging over our heads like a boneless sword of Damocles?
The last two times I took issues to the Ohio Supreme Court in the mid and late 1990s they involved getting corrupt judges kicked off the bench. I’m glad to see they finally got their priorities in order so as to tackle the really important boneless chicken issues of the 21st Century.
You can agree or disagree with the opinion
But Mr berkenheimer is the one who brought it to court
Trial courts do not get to decide what cases they take
Plaintiffs do
The Ohio supreme court did not have to take this case
Though the outcome would have been the same
“Boneless Wings” aren’t actually wings, either. They are composite chicken.
I need to bone up on my definitions. I never knew that “boneless” referred to a type of cooking. What does “shelled nuts” mean in Ohio? Or seedless grapes?
Speaking of which, have you bought a “seedless” watermelon lately?
America has the best Justice system money can buy.