OHIO (WTRF) – A divided Ohio Supreme Court ruled 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 state’s highest court ruled that the lower courts properly dismissed Michael Berkheimer’s 2017 lawsuit against a restaurant and its chicken suppliers at the summary judgment phase.
In 2016, Berkheimer, his wife and a few friends dined at Wings on Brookwood in Hamilton, Ohio, where he ordered boneless wings with parmesan garlic sauce. He said he had eaten his third 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, measuring about 5 centimeters.
Berkheimer sued Wings on Brookwood in 2017, though the case was dismissed by lower courts.
In Thursday’s ruling, the majority of the Ohio Supreme Court ultimately concluded that “boneless wings” refers to a cooking style and is not a guarantee that fragments of bones would not be present.
“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 justices called Deters’ reasoning “utter jabberwocky” and said a jury should’ve been allowed to decide whether the restaurant was negligent in serving Berkheimer a piece of chicken that was advertised as boneless.
“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,” Justice Michael P. Donnelly wrote in dissent. “When they read the word ‘boneless,’ they think that it means ‘without bones,’ as do all sensible people.”
The Associated Press contributed to this report.