Ohio's 'Boneless Wing' Ruling: What It Means If You're Injured by Something in Your Food

Published September 5, 2024 · Ohio Supreme Court

You order something off a menu, take a bite, and something hard goes down the wrong way. A few days later you are in the emergency room. Most people assume the restaurant is responsible. After a July decision from the Supreme Court of Ohio, the answer depends heavily on what you swallowed.

The case is Berkheimer v. REKM, L.L.C., Slip Opinion No. 2024-Ohio-2787, decided July 25, 2024. It has drawn national attention as the "boneless wing" case. Here is what the Court decided, what it did not decide, and what it means if you are hurt by something in your food in Ohio.

What happened

Michael Berkheimer was a regular at a Butler County wing restaurant and ordered his usual: boneless wings with parmesan garlic sauce. The menu gave no warning that the wings could contain bones. He cut each wing into two or three pieces, as he always did. While eating, he felt something go down the wrong way.

Over the next three days he developed a fever and could not keep food down. In the emergency room, a doctor found a thin chicken bone lodged in his esophagus. According to the court of appeals, he testified that the bone perforated his throat and caused an infection in his chest cavity that required surgery, two medically induced comas and about a month in the hospital, and that he still has reduced breathing capacity in one lung. The courts described the bone as about 1 3/8 inches long.

He sued the restaurant, its food distributor and the farm that supplied the chicken. The trial court granted summary judgment for all three defendants, meaning it ended the case without a trial, and the Twelfth District Court of Appeals affirmed.

What the Supreme Court decided

In a 4-3 decision written by Justice Deters, the Court affirmed.

The Court reaffirmed a test it first adopted in a 1960 case involving a piece of oyster shell in a plate of fried oysters. Under that test, a food supplier does not breach its duty of care if the consumer could reasonably have expected the harmful substance to be in the food and guarded against it. Whether the substance is "natural" to the food, like a bone in chicken or a shell in an oyster, or "foreign" to it, like glass or metal, helps answer what the consumer could reasonably expect.

Applying that blended test, the majority concluded that a bone is natural to chicken, that a bone of this size in a bite-sized piece of chicken breast was something a diner could have guarded against, and that no reasonable juror could conclude otherwise. It also rejected the argument that the word "boneless" changed anything, reasoning that the label described a cooking style, "not a guarantee," just as "chicken fingers" are not made of fingers.

The dissent

Justice Donnelly, joined by Justices Stewart and Brunner, dissented sharply. He agreed with the legal test but argued that whether a diner should expect a bone in a dish sold as "boneless" was a question for a jury, not for judges, and called the decision another blow to the jury system. He also described the majority's reasoning about the menu label as "jabberwocky."

Three of seven justices believed a jury should have heard the case. That shows how close the question was.

What the ruling means for food-injury claims in Ohio

This is a disappointing decision for injured diners, and it is important to be honest about it. If you are hurt by something that is a natural part of the food, such as a bone in meat, a shell in shellfish, a pit in fruit, or a shell fragment in a nut product, Ohio courts are now very likely to rule that you should have anticipated it, even if the menu says otherwise.

But the decision leaves other paths open:

• Foreign objects are different. The test the Court reaffirmed treats whether a substance is foreign to the food as an important factor. Glass, metal, plastic, wire, stones and similar contaminants are not a natural part of any dish, and the reasoning that defeated Mr. Berkheimer's claim does not carry over to them in the same way.
• Contaminated or spoiled food is different. Food poisoning from tainted or improperly handled food is not the same as encountering a bone.
• Specific promises may matter. The majority itself noted that the presence of lactose or gluten in a food advertised as lactose-free or gluten-free is not something a consumer would customarily expect and guard against. A diner with a serious allergy who relies on a specific representation is in a different position than a diner who swallows a bone.
• Size and circumstances still count. The Court relied on the size of this bone relative to the bite. Facts matter in every case.

Food-injury claims can also involve more than one defendant, here the restaurant, distributor and producer. Identifying who handled the food, and how, is part of building the case.

Evidence you need to keep

Food-injury cases are often won or lost on evidence that disappears in hours:

• Keep the object. Put it in a clean, sealed container. Do not throw it away and do not hand it to the restaurant.
• Keep the rest of the food and the packaging if you can.
• Photograph everything: the object next to a coin or ruler for size, the plate, the menu and any description of the item.
• Keep your receipt or credit card record showing the date, time and what you ordered.
• Report it to the manager in writing and ask that the incident be documented.
• Get medical care right away and tell the doctor exactly what happened. Medical records that describe the object are powerful evidence. Our guide chapter on focusing on treatment first explains why consistent care matters.

Our chapter on gathering evidence while it still exists explains how to preserve video, incident reports and other proof held by a business.

What this means for you

If you were seriously hurt by something in your food, do not assume the Berkheimer decision ends your claim, and do not assume it does not. The answer turns on what the object was, where it came from, what you were told about the food, and how badly you were hurt. Those are questions to sort out with a lawyer quickly, while the object, the receipts and the restaurant's records still exist. Our premises liability and personal injury pages explain how we approach injuries that happen at restaurants and stores.