Boneless chicken wings can have bones, Ohio Supreme Court rules

The Ohio Supreme Court decided Thursday that “‘boneless’” chicken wings do not have to be bone-free, ending a lawsuit filed after a man suffered medical issues after consuming a chicken bone while eating a boneless wing.

According to the court’s opinion, “Michael Berkheimer sued a restaurant, its food supplier, and a chicken farm after he suffered serious medical problems resulting from getting a chicken bone lodged in his throat while he was eating a ‘boneless wing’ served by the restaurant.”

“There is no breach of a duty when the consumer could have reasonably expected and guarded against the presence of the injurious substance in the food,” the court said in its decision. “And what the consumer could have reasonably expected is informed by the determination whether the injurious substance in the food is foreign to or natural to the food.”

The Ohio high court also said in its decision that when it comes to “the food item’s being called a ‘boneless wing,’ it is common sense that that label was merely a description of the cooking style.”

“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,” the court’s decision reads. “The food item’s label on the menu described a cooking style; it was not a guarantee.”

However, three out of the seven justices in the case dissented, stating, “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,” the justices stated. “When they read the word ‘boneless,’ they think that it means ‘without bones,’ as do all sensible people.”

Robb Stokar, who represented Berkheimer in the case, told The Hill in an emailed statement that the plaintiff “suffered catastrophic injuries from a bone contained in a menu item unambiguously advertised as ‘boneless’ at every level of commerce.”

“All we asked is that a jury be able to make a commonsense determination as to whether he should be able to recover for his injuries,” Stokar continued. “But the Court’s majority ruled otherwise, simultaneously denying him that opportunity, and rendering the word ‘boneless’ completely meaningless.”

Emmett Robinson, who also represented Berkheimer, said in an email to The Hill that “Needless to say, we are very disappointed in the ruling.”

“The majority said it was ‘common sense’ that the term ‘boneless wing’ doesn’t actually mean without bones. But that flies in the face of the ordinary meaning of the word boneless and, if you were to ask 100 people on the street, I bet at least 99 would disagree with the majority’s so-called ‘common sense’ proposition,” Robinson said.

The Hill has also reached out to REKM, L.L.C., Wayne Farms, L.L.C., and Gordon Food Service, Inc., for comment.