2024 Ohio 2787
Ohio2024Background
- Michael Berkheimer was injured when he swallowed a chicken bone while eating a "boneless wing" at a restaurant in Ohio.
- The boneless wings were prepared by cutting boneless, skinless chicken breasts into pieces and frying them; the chicken was supplied by Gordon Food Service (GFS) and sourced from Wayne Farms.
- Berkheimer sued the restaurant (REKM), GFS, and Wayne Farms for negligence, breach of warranty, and related claims, alleging he could not have reasonably expected a bone in a boneless wing.
- The trial court granted summary judgment for the defendants, holding that consumers should reasonably expect the possibility of bones in meat dishes, even those labeled "boneless."
- On appeal, the Twelfth District Court of Appeals affirmed, and Berkheimer further appealed to the Ohio Supreme Court.
- The Ohio Supreme Court reviewed whether the proper standard is what consumers reasonably expect ("reasonable expectation" test) or whether the substance is foreign or natural to the food ("foreign-natural" test), and how these standards interplay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Negligence liability for bone in "boneless wing" | Berkheimer could not reasonably expect a bone in item; issue should go to a jury | Bones are natural to chicken; reasonable to expect possibility—even in boneless food | No breach where consumer could have reasonably expected and guarded against bone; held as matter of law for defendants |
| Whether "reasonable expectation" or "foreign-natural" test applies | Only "reasonable expectation" test should apply | The two tests can be blended for analysis | Ohio reaffirms a blended approach from Allen v. Grafton |
| Should summary judgment be granted or case go to jury | Jury should decide what a consumer reasonably expects | No genuine dispute of material fact; summary judgment proper | Summary judgment appropriate; reasonable minds could reach only one conclusion |
| Effect of labeling food as "boneless" on consumer expectation | "Boneless" reasonably means there will be no bones; creates expectation | "Boneless" refers to style, not a guarantee of no bones | "Boneless" does not insure absence of all bones; reasonable consumer could expect occasional bone |
Key Cases Cited
- Allen v. Grafton, 170 Ohio St. 249 (1960) (adopts blended approach using both foreign-natural and reasonable expectation tests for injurious substances in food)
- Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75 (1984) (sets out negligence elements in Ohio law)