Chicken wings advertised as “boneless” cannot be guaranteed to be completely bone-free, a divided Ohio Supreme Court ruled on Thursday, July 25, in a 4-3 decision.
In 2016, Michael Berkheimer and his wife visited Wings on Brookwood in Butler County, Ohio, according to his 2017 lawsuit against the restaurant and its chicken suppliers, reports Court News Ohio. Berkheimer ordered boneless wings and cut each wing into two to three pieces. While eating his third, he felt a piece of meat “[go] down the wrong pipe.” He unsuccessfully tried to clear his throat in the restroom.
Days later, his fever spiked and he struggled to eat. He went to the emergency room, where a doctor found a thin chicken bone in his esophagus, according to Berkheimer’s lawsuit. He claimed the bone tore his esophagus, leading to a bacterial infection and further medical issues.
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Berkheimer sued Wings on Brookwood, arguing that the restaurant failed to warn him that “boneless wings” could contain bones. He also sued the chicken suppliers, claiming they were all negligent.
A trial court sided with the restaurant and its suppliers. Berkheimer appealed to Ohio’s 12th District Court of Appeals, which also sided with the defendants. He took his case to the Supreme Court, which affirmed the lower court decisions that a consumer should reasonably expect bones in the dishes since chickens have bones.
In its ruling, the Ohio Supreme Court’s majority also wrote that “boneless” referred to a cooking style, not a true guarantee that the food would really be without bones.
“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,” Justice Joseph T. Deters wrote for the majority.
The dissenting judges said a jury should decide if the restaurant and its suppliers were negligent. Justice Michael P. Donnelly called the majority’s reasoning “utter jabberwocky,” adding, “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.”
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“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,” Donnelly wrote. “When they read the word ‘boneless,’ they think that it means ‘without bones,’ as do all sensible people.”
