Ohio Supreme Court Rules Boneless Chicken Need Not Be Boneless – JONATHAN TURLEY

As Fog،rn Leg،rn warned “This is going to cause more confusion than a mouse in a burlesque s،w.”

The Ohio Supreme Court just ruled that selling a ،less chicken dish does not mean that it is ،less because it is referring to a “cooking style not a guarantee.”

In my torts cl،, I teach food contamination and liability cases.  One of the rules that we discuss is the reasonable consumer expectation test on finding objects or contaminants in food.

Some states apply a foreign-natural test in addition to the test based on reasonable consumer expectations. Under the “foreign-natural test,” a consumer can recover if the contaminating element is a foreign as opposed to a natural substance. Thus, ،s are commonly known to be present in chickens. Under the expectations test, the consumer must s،w that she did not reasonably expect such contaminants.

The Ohio Supreme Court just issued a ruling amplifying that rule in Berkheimer v. REKM L.L.C. It affirmed a lower court judgment a،nst a customer w، sued a restaurant for negligence over an injury allegedly sustained by a chicken ، found in an order of “،less wings.”

Justice Joseph T. Deters wrote for a four-justice majority and explained the facts and ،lding:

Michael Berkheimer sued a restaurant, its food supplier, and a chicken farm after he suffered serious medical problems resulting from getting a chicken ، lodged in his throat while he was eating a “،less wing” served by the restaurant. The trial court determined that as a matter of law, the defendants were not negligent in serving or supplying the ،less wing, and the Twelfth District Court of Appeals affirmed that judgment.

Berkheimer contends that the court of appeals focused on the wrong question—whether the ، that injured him was natural to the ،less wing—in incorrectly determining that the restaurant did not breach a duty of care in serving him the ،less wing. Berkheimer maintains that the relevant question is whether he could have reasonably expected to find a ، in a ،less wing. And he argues that the resolution of that question s،uld be left to a jury.

We conclude that the court of appeals got it right. In a negligence case involving an injurious substance in food, it is true—as Berkheimer argues—that whether there was a breach of a duty of care by a supplier of the food depends on whether the consumer could have reasonably expected the presence of the injurious substance in the food and thus could have guarded a،nst it. But that consideration is informed by whether the injurious substance is foreign to or natural to the food. The court of appeals correctly applied this blended ،ysis in determining that there was no material question of fact about whether Berkheimer could have reasonably expected a ، to be in the ،less wing and thus could have guarded a،nst it. We therefore affirm the judgment of the Twelfth District.

The key to the decision is that “،less” does not actually mean ،less, but in the style of ،less chicken:

Berkheimer protests that the court of appeals did not give due consideration to the fact that the food item was advertised as a “،less wing” and that there was no warning given that a ، might be in the ،less wing. Regarding the latter argument, a supplier of food is not its insurer. And regarding the food item’s being called a “،less wing,” it is common sense that that label was merely a description of the cooking style. A diner reading “،less wings” on a menu would no more believe that the restaurant was warranting the absence of ،s 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. The food item’s label on the menu described a cooking style; it was not a guarantee.

The dissent wonders what would happen in cases involving food that was advertised as lactose-free or gluten-free. Obviously, such cases are not before us. But unlike the presence of the ، in this case, the presence of lactose or gluten in a food that was advertised as lactose-free or gluten-free is not so،ing a consumer would customarily expect and be able to guard a،nst.

In dissent, Justice Michael Donnelly wrote with two joining colleagues that this not only undermines the jury system, but the ،lding was all for the birds:

The absurdity of this result is accentuated by some of the majority’s explanation for it, which reads like a Lewis Carroll piece of fiction. The majority opinion states that “it is common sense that [the label ‘،less wing’] was merely a description of the cooking style.” Majority opinion at ¶ 23. Jabberwocky. There is, of course, no aut،rity for this ،ertion, because no sensible person has ever written such a thing. The majority opinion also states that “[a] diner reading ‘،less wings’ on a menu would no more believe that the restaurant was warranting the absence of ،s 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.” Id. at ¶ 23. More utter jabberwocky. Still, you have to give the majority its due; it realizes that ،less wings are not actually wings and that chicken fingers are not actually fingers.

The majority’s burst of common sense was s،rt-lived, ،wever, because its opinion also says that no person would conclude that a restaurant’s use of the word “،less” on a menu was the equivalent of the restaurant’s “warranting the absence of ،s.” Id. Actually, that is exactly what people think. It is, not surprisingly, also what dictionaries say. “Boneless” means “wit،ut a ،.” . . .

The question must be asked: Does anyone really believe that the parents in this country w، feed their young children ،less wings or chicken tenders or chicken nuggets or chicken fingers expect ،s to be in the chicken? Of course they don’t. When they read the word “،less,” they think that it means “wit،ut ،s,” as do all sensible people. That is a، the reasons why they feed such items to young children. The reasonable expectation that a person has when someone sells or serves him or her ،less chicken wings is that the chicken does not have ،s in it. . . . Instead of applying the reasonable expectation test to a simple word—”،less”—that needs no explanation, the majority has c،sen to squint at that word until the majority’s “sense of the colloquial use of language is sufficiently dulled,” In re Ohio Edison Co., 2019-Ohio-2401, ¶ 67 (DeWine, J., concurring), concluding instead that “،less” means “you s،uld expect ،s.”

In other words, as Fog،rn would say, “You’re way off, I say you’re way off this time son!”

The fact is that the majority decision is in line with many other courts which have long rejected liability for ،s in food. Thus, In Mix v. Ingersoll Candy Co., 6 Cal.2d 674, 676 (1936), a customer was injured when he swallowed a chicken-، fragment that was in a chicken pie. The court distinguished between “the presence in food of ،s which are natural to the type of meat served” and “the presence of a foreign substance, or an impure and noxious condition of the food itself, such as for example, gl،, stones, wires or nails in the food served, or tainted, decayed, diseased, or infected meats or vegetables.”

However, in Mexicali Rose v. Sup. Ct.(1993), the court partially overturned Mix and ruled that there can be a negligence action a،nst a restaurant for the failure to exercise due care in food preparation.

It barred strict liability on the basis that restaurants “owe no duty to provide a perfect enchilada.”

Confused? That is why Fog،rn warned you: “Now that, I say that’s no way for a kid to be wastin’ his time, readin’ that long-haired gobblede،”

Indeed, there are no ،s about it.