2023 Ohio 116
Ohio Ct. App.2023Background
- On April 1, 2016, Michael Berkheimer ingested a chicken bone while eating a menu-item described as "boneless" at REKM d/b/a Wings on Brookwood and suffered serious, permanent injuries requiring surgery.
- Berkheimer sued the restaurant (REKM), supplier Gordon Food Service (GFS), and manufacturer Wayne Farms for negligence and related claims.
- The trial court originally granted judgment on the pleadings for defendants; this court reversed in Berkheimer I and remanded for discovery.
- Discovery showed the "boneless wings" were prepared from boneless, skinless chicken breasts cubed into ~1-inch pieces; the removed bone measured ~1 3/8 inches. The menu said "boneless" but included no warning.
- Defendants moved for summary judgment; the trial court held a chicken bone is natural to chicken and that a consumer should reasonably expect and guard against bone fragments.
- The Twelfth District affirmed: as a matter of law, the bone was natural and foreseeable, so defendants were entitled to summary judgment on negligence and the related claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a bone in a "boneless" chicken product is a "foreign" substance or one a consumer should reasonably anticipate | Berkheimer: advertising "boneless" + processed nature makes a bone foreign and not reasonably anticipated | Defendants: chicken bone is natural to the meat; consumers should anticipate bone fragments | Court: bone is natural and foreseeable as matter of law; summary judgment for defendants |
| Whether advertising an item as "boneless" negates the reasonable-expectation analysis | Berkheimer: "boneless" advertising alters what a reasonable consumer would expect | Defendants: advertising does not overcome the natural-occurence principle | Court: advertising does not change rule; Ohio precedent holds presence of bones can still be reasonably anticipated |
| Whether the size/placement of the bone created a triable issue of fact about discoverability | Berkheimer: bone situated in a bite-sized piece made it unforeseeable | Defendants: bone size was comparable to prior cases where consumers should have guarded against it | Court: bone (~1 3/8") was large enough that a reasonable person could anticipate it; no genuine issue |
| Whether non-negligence claims (breach of warranty, adulterated/misbranded, strict liability) survive if negligence fails | Berkheimer: those claims are independent and should not be disposed with negligence ruling | Defendants: if the product is not adulterated or unfit (consumer could anticipate bone), those claims fail too | Court: because the bone was natural and foreseeable, the other claims fail as a matter of law; summary judgment affirmed |
Key Cases Cited
- Allen v. Grafton, 170 Ohio St. 249 (1960) (Ohio Supreme Court articulating that natural substances in food are an important factor in whether consumers can reasonably anticipate and guard against them)
- Mathews v. Maysville Seafoods, Inc., 76 Ohio App.3d 624 (12th Dist. 1991) (summarizes foreign-natural and reasonable-expectation tests; applies them to fish-bone cases)
- Mix v. Ingersoll Candy Co., 6 Cal.2d 674 (Cal. 1936) (formulation of the foreign-natural test)
- Zabner v. Howard Johnson's Inc., 201 So.2d 824 (Fla. Dist. Ct. App. 1967) (formulation of the reasonable-expectation test)
- Ruvolo v. Hamovich, 149 Ohio App.3d 701 (8th Dist. 2002) (applies Allen to chicken in a sandwich/gordita and affirms summary judgment for defendants)