Ohio court rules restaurant not responsible for injury from bone in boneless wing

OHIO ( WTRF ) – The Ohio Supreme Court ruled on Thursday that a customer who ordered boneless chicken wings could have reasonably expected to find a piece of bone in his meal and guarded against swallowing it.

In a 4-3 decision, the Supreme Court ruled that Michael Berkheimer’s 2017 lawsuit against Wings on Brookwood and its chicken suppliers was properly dismissed by the lower courts at the summary judgment phase.

The majority found the Twelfth District Court of Appeals correctly concluded that the restaurant was not liable for the injuries Berkheimer suffered after swallowing a 1 3/8-inch sliver of bone found in a 1-inch boneless wing.

Justice Joseph T. Deters explained that “boneless wings” are a cooking style and not a guarantee that fragments of bones would not be present in the dish. He explained that a food seller is not liable when a customer could reasonably expect and guard against a hazardous substance in food. A customer’s “reasonable expectation” is formed in part by whether the “injurious substance in the food is foreign to or natural to the food,” he noted.

In 2016, Berkheimer, his wife, and a few friends went to Wings on Brookwood in Butler County where he ordered boneless wings with parmesan garlic sauce.  He was eating the third piece of a wing when he felt “a piece of meat [go] down the wrong pipe.”

He went to the restroom to try to clear his throat but was unsuccessful. Over the next three days, he spiked a fever and had trouble eating. During a visit to the emergency room, a doctor discovered a thin chicken bone lodged in his esophagus. His medical records indicated it was a “5cm-long chicken bone,” which is about 1-3/8 inches.

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