2018 Ohio 2668
Ohio Ct. App.2018Background
- Plaintiff Michael Berkheimer ate a restaurant "boneless wing" at Wings on Brookwood and later discovered a chicken bone lodged in his throat, causing infection and alleged permanent injuries.
- Berkheimer sued the restaurant owner (REKM, LLC), distributor (Gordon Food Service), and processor (Wayne Farms) asserting negligence, breach of warranty, strict liability, adulterated/misbranded food, and Ohio Deceptive Trade Practices Act claims.
- Defendants moved for judgment on the pleadings under Civ.R. 12(C), arguing bones are natural to chicken and a consumer should anticipate them even in "boneless" products; court granted dismissal of all claims.
- The appellate court reviewed de novo, construing the complaint in plaintiff's favor and noted the trial court lacked sufficient factual record (e.g., product identity, processing details, bone size) to apply the "oyster/fish bone" precedent at the pleading stage.
- The appellate court reversed dismissal as to REKM, GFS, and Wayne Farms (finding plaintiff adequately pleaded claims and that resolution of the negligence issue typically requires more factual development) and affirmed dismissal as to United Healthcare Service, Inc.; case remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether bones in a meat product can be judged as a matter of law to be reasonably anticipated by a consumer (foreign-natural vs. reasonable-expectation tests) | Berkheimer argued the question requires factual development (product processing, bone size) and is not resolvable on the pleadings | Defendants argued bones are natural to chicken; plaintiff should anticipate bones even in "boneless" items, so dismissal is proper | Reversed: Court held dismissal on pleadings was improper because material facts remained unresolved and the Allen analysis requires a developed record |
| Whether the complaint stated a plausible negligence claim | Berkheimer asserted he was served an advertised "boneless" product containing a bone causing injury | Defendants contended no duty to warn and plaintiff should have guarded against bones in chicken | Reversed: Complaint sufficiently pleaded negligence; factual issues preclude judgment on pleadings |
| Whether non‑negligence claims (breach of warranty, strict liability, adulterated/misbranded food, ODTPA) survive when negligence is dismissed | Berkheimer argued these claims are independent and properly pleaded | Defendants argued they were derivative and fell with negligence dismissal | Reversed: Court found these claims properly pleaded and erred in dismissing them based solely on negligence ruling |
| Proper procedural standard for Civ.R. 12(C) motions | Plaintiff urged that 12(C) is rarely appropriate and facts must be construed in plaintiff's favor | Defendants relied on precedent treating certain food‑foreign object cases as appropriate for summary judgment or dismissal | Held: 12(C) dismissal was inappropriate here; courts should not resolve Allen‑type inquiries without sufficient factual development |
Key Cases Cited
- Allen v. Grafton, 170 Ohio St. 249 (1960) (establishes that the naturalness of an injurious object is an important factor in whether a consumer can reasonably anticipate it)
- Mathews v. Maysville Seafoods, 76 Ohio App.3d 624 (1991) (summarizes "foreign‑natural" and "reasonable expectation" tests and applies Allen to fish‑bone context)
- Whaley v. Franklin Cty. Bd. of Commrs., 92 Ohio St.3d 574 (2001) (standard of review and nature of Civ.R. 12(C) as resolving questions of law)
- State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565 (1996) (standard for dismissal when plaintiff can prove no set of facts entitling relief)