Ohio Supreme Court Majority Ruling That Boneless Wings Can Have Bones Is an Embarrassment

What a bonehead decision. “Utter jabberwocky,” or meaningless nonsense, is what dissenting justices on the Ohio Supreme Court called the Republican majority’s recent ruling that lovers of boneless chicken wings should reasonably expect bones in their food. If you order boneless wings but a bone in one of them chokes you, the GOP majority decreed, it’s not the fault of the restaurant that advertised bone-free wings or its suppliers of bone-free chicken; it’s yours.

You ought to have “guarded against the injurious substance in the food,” argued Justice Joe Deters, who authored the majority opinion and is seeking reelection in November. It was your negligence that caused your injury. You assumed the boneless wings on the menu were without bones. But bones are a natural part of chicken, Deters wrote, so you should bank on them in wings sold as boneless.

The head-scratching lunacy of that opinion made national and international news. Another proud moment for the state. The case Deters destroyed involved a southwest Ohio man who ordered his favorite boneless wings with Parmesan garlic sauce at a local diner and suffered serious medical complications from getting a bone stuck in his throat.

It tore his esophagus and caused infection. He endured two surgeries after swallowing a 1 3/8-inch sliver of bone in a 1-inch boneless wing. Not surprisingly, the injured Michael Berkheimer sued the restaurant that prepared his boneless wings (which, of course, are nuggets of boneless, skinless breast meat breaded, fried and slathered in sauce) and its suppliers for his pain and suffering and medical expenses.

He maintained the relevant question was whether he could have reasonably expected to find a bone in boneless wings and sought resolution of that question from a jury of his peers. But the high court nixed a jury trial for Berkheimer by ruling that none of the defendants he sued did anything wrong.

The trial court got it right in throwing out the case, as did the appellate court in affirming that judgment, Deters said. His rationale to let the business interests and corporate insurers off the hook was strikingly devoid of logic. But it was in lockstep with the state Republican agenda favoring business interests and corporate insurers.

Deters argued the restaurant and its sellers bore no responsibility for the product put on the plate of a boneless chicken wings customer that sent him to the hospital. The Republican justice even suggested the majority’s opinion was on such solid legal ground — in assigning blame to the restaurant patron for not being guarded about bones in boneless wings — that no reasonable person could possibly concluded otherwise.

But a searing dissent to the 4-3 decision, written by Democratic Justice Michael Donnelly, begged to differ. “The absurdity of this result…reads like a Lewis Carrol piece of fiction. The majority opinion states that ‘it is common sense that [the label ‘boneless wing’] was merely a description of the cooking style.’ Jabberwocky. There is, of course, no authority for this assertion, because no sensible person has ever written such a thing.” Ouch.

Donnelly, also up for reelection in November, ripped the stupidity of Deters’ argument that “no person would conclude that a restaurant’s use of the word ‘boneless’ on a menu was the equivalent of the restaurant’s ‘warranting the absence of bones.'” Um, what? “Actually,” the dissenting justice disagreed, “that is exactly what people think. It is, not surprisingly, also what dictionaries say. ‘Boneless’ means ‘without a bone.’”

Donnelly stated the obvious: “The reasonable expectation that a person has when someone sells or serves him or her boneless chicken wings is that the chicken does not have bones in it.” The case, he added, “is incredibly straightforward. The issue is whether Berkheimer, who swallowed a bone while eating a boneless chicken wing, should be able to present to a jury his negligence claim against those who supplied or who prepared and served the wing or whether a judge may decide, as a matter of law, that Berkheimer cannot, under any circumstances, establish the defendants’ negligence.”

Deters denied Berkheimer the ability to have a jury hear his case. The majority opinion he crafted inferred guilt on the plaintiff for presuming boneless meant boneless. End of story.

Except it isn’t. The high court’s majority is in flux this November with ramifications beyond boneless chicken wings that aren’t. “The next Ohio Supreme Court will determine the meaning of Ohioans’ new right to reproductive freedom and could very well consider what districts are ‘fair’ and legal,” said former Ohio Democratic Party chair David Pepper.

“A 4-person majority willing to declare ‘boneless’ actually means ‘with bones’ should scare the hell out of everyone. Because that means they are willing to make Swiss cheese out of any language, no matter how clear, if it serves certain interests.”

Republicans hope to clinch a larger majority on the court in the fall, which is why Deters is running not in his current appointed seat on the bench — where he’d have to run for re-election in 2026 — but instead challenging Democratic colleague Justice Melody Stewart, the first Black woman elected to the court, for a six-year term.

Still, one could reasonably expect the bonehead decision Deters rolled out — that garnered worldwide attention as nonsensical jabberwocky — to haunt his judicial aspirations.