In 2017, Berkheimer initiated legal action against REKM, the owners of Wings on Brookwood, and suppliers Gordon Food Service and Wayne Farms. Berkheimer claimed that an inch-and-a-half-long bone in his boneless wings order caused significant damage to his esophagus, necessitating two surgeries and leading to long-term health issues.
The Ohio Supreme Court, in a 4-3 decision, ruled that Berkheimer could not hold the restaurant or its suppliers liable for the incident. The majority opinion emphasized that the term "boneless" refers to a cooking style rather than an absolute guarantee of no bones. They reasoned that it is common sense for consumers to be cautious about the potential presence of bones in chicken products, even those marketed as boneless.
Justice Sharon L. Kennedy, writing for the majority, stated, "It is common sense that ‘boneless’ doesn’t guarantee bonelessness but rather describes a cooking style." The court highlighted that the presence of bones in chicken, even in boneless products, is a natural occurrence and that consumers should reasonably expect and guard against such eventualities.
The dissenting justices, however, argued that the ruling ignored reasonable consumer expectations and the representations made by sellers. They contended that the term "boneless" should imply an assurance that the product is free of bones. Justice Michael P. Donnelly, writing for the dissent, called the majority’s reasoning "nonsensical" and emphasized that parents, in particular, rely on such labeling to ensure the safety of their children when consuming chicken products.
Berkheimer’s legal battle went through several layers of the judiciary. Initially, the Butler County Common Pleas Court ruled in favor of the defendants, a decision later upheld by the Twelfth District Court of Appeals. Berkheimer's argument hinged on Ohio’s "reasonable expectation test," which assesses whether a consumer should reasonably expect certain substances in food. He maintained that the courts had improperly applied this test, effectively merging it with the older "foreign-natural test," which excuses sellers from liability for natural substances in food.
Despite Berkheimer’s insistence that the reasonable expectation test should have led to a different outcome, the Ohio Supreme Court sided with the lower courts, affirming that consumers must exercise caution even with boneless-labeled products. The ruling underscores the court's stance that naturally occurring substances in food, like bones in chicken, do not constitute a breach of reasonable consumer expectations.
This case highlights ongoing debates about food safety and labeling, and the extent to which consumers can rely on product descriptions. While the ruling may close Berkheimer’s case, it leaves open questions about the responsibilities of food sellers and the protections afforded to consumers under Ohio law.
The decision has sparked discussions among legal experts and consumer rights advocates about the implications for future food-related injury cases. As it stands, the Ohio Supreme Court’s ruling places a significant burden on consumers to guard against naturally occurring hazards in food, even when marketing suggests otherwise.