The “Boneless” Chicken Case

Borrowing a line from Oliver Twist, Justice Brennan once wrote that “[t]o say that ‘the law is an ass, a idiot’ is not to impugn the character of those who must administer it.”[1] Imperfections in the law, he wrote, do not reflect on the judges, but on a system judges are powerless to change when they adhere faithfully to what is required of them. Still, there are times when a fair reading of the law and a judicial decision seem so at odds with each other that one must wonder whether the judges in such a case occupy a universe of their own making. An opinion issued in July by the Ohio Supreme Court seems likely to evoke that type of response. The case has come to be known as the “‘boneless’ chicken” case.

The dispute originally arose when the plaintiff ate his usual order of “boneless” wings at a restaurant he frequented. He suffered serious medical problems when a chicken bone lodged in his throat while eating that meal. Doctors at the emergency room found 5-cm long chicken bone had torn his esophagus and created a bacterial infection along with other medical issues.

A deposition of the restaurant’s cook explained that the wings were made from pre-butterflied, boneless and skinless chicken breasts, which were cut into one-inch chunks before being served to customers. In suing, the plaintiff claimed that the restaurant and its supplier were negligent by serving a boneless wing with a hidden bone in it and no warning of any kind that it may contain a bone.

The trial court initially granted judgment on the pleadings to the defendants, but an intermediate appellate court reversed and remanded the case as plausibly stating a cause of action for negligence. The defendants moved for summary judgment, which the court granted because “common sense dictated that the presence of bone fragments in meat dishes—even dishes advertised as “boneless”—is a natural enough occurrence that a consumer should reasonably expect it and guard against it.”[2] The intermediate appellate court affirmed, holding that “the bone was natural to the boneless wing.”[3]

The Ohio Supreme Court considered the case in light of another it had decided in 1960, where it had applied a reasonable-expectation test to ingesting a foreign substance. Under that test, a court considers what a reasonable consumer would expect to encounter in the food and thus guard against, so that its presence does not impose a duty of care on the supplier when the substance should not be a surprise. That determination, the Court held, is reflected in a companion “foreign-natural” test, which assesses whether the substance in the food was natural to it and thus not a foreign substance. In the 1960 decision, the Court ruled that a piece of oyster shell in or attached to any oyster should be anticipated and not impose a duty on the restaurant.[4]

The Court then found no error in the appellate court’s determination that a chicken bone was natural to chicken meat and thus not an “unnatural or ‘foreign substance.’”[5] That the meal was sold as “boneless” did not change the Court’s conclusion, given that “’everyone … knows that tiny bones may remain in even the best fillets of fish.’”[6] The Court also held that the bone was large enough that, “as a matter of law, he reasonably could have guarded against it.”[7]

Further dismissing the argument that the food was advertised as a “boneless wing,” the Court characterized that representation as “merely a description of  the cooking style.”[8] The Court then adopted a strange analogy, saying that 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 food item’s label on the menu described a cooking style; it was not a     guarantee.[9]

The majority also defended against a criticism in the dissent about food advertised as lactose- or gluten-free: the  presence of lactose or gluten in a food that was advertised as lactose-free or gluten-free is not something a consumer would customarily expect and be able to guard against.[10]

As the dissent pointed out, the decision allowing a court to determine as a matter of law what the reasonable diner might expect appears to put “another nail in the coffin of the American jury system.”[11] It further argues that the existence of three dissenting justices demonstrates that a reasonable person could reach a conclusion contrary to the majority’s.[12]

The dissent’s points about the determination falling within the jury’s constitutionally guaranteed prerogative are well taken. The Ohio Constitution guarantees the right to a jury trial as “inviolate.”[13] Even so, one finds it difficult to understand how the sale of  “boneless chicken” does not create an expectation that it is bone-free because it is being sold as devoid of bones. Nor can it be justified as a mere “cooking style,” a terminology that I would associate with Southern, French, Basque, or Chinese cooking as examples. Boneless is not a cooking style. In an era in which public respect for the courts is perilously low, the decision will confound the public and suggest that words do not mean what they say – at least as a matter of law, which is why most commentators have had a bone to pick with the Ohio Supreme Court.

 

[1] In re Sawyer, 360 U.S. 622, 634 (1959).

[2] Berkheimer v. REKM, L.L.C., 2024-Ohio-2787, ¶ 9 (characterizing ruling).

[3] Id. at ¶ 10.

[4] Id. at ¶ 17 (characterizing Allen v. Grafton, 170 Ohio St. 249, 251, 164 N.E.2d 167 (1960)).

[5] Id. at 20 (quoting 2023-Ohio-116, 206 N.E.3d 90, at ¶ 26 (12th Dist.)).

[6] Id. at ¶ 21 (quoting Mathews v. Maysville Seafoods, Inc., 602 N.E.2d 764 (12t Dist. 1991)).

[7] Id. at ¶ 22.

[8] Id. at ¶ 23.

[9] Id.

[10] Id. at ¶ 24.

e[11] Id. at ¶ 27 (Donnelly, J., dissenting).

[12] Id.

[13] Ohio Const. art. I, § 5.