A Bone to Pick with the Supreme Court of Ohio?

One of the joys of teaching sales are the “reasonable expectation of the biter” cases such as Webster v. Blue Ship Tea Room, Inc. In addition to presenting a difficult puzzle regarding the scope of liability on implied warranties, the case provides a loving account of what separates chowder, "a hearty dish, originally designed to satisfy the appetites of our seamen and fishermen” from some "insipid broth as is customarily served to convalescents.” The reasonable expectation of the biter cases are on the borderline between tort law and warranty. But what if the thing being bitten is a “boneless” chicken wing. That may taste like chicken, but it sounds like an express warranty, a very different matter.

In Berkheimer v REKM, L.L.C., Mr. Berkheimer swallowed a bone hidden in a “boneless” chicken wing that he paired with a parmesan garlic sauce.  The five-centimeter bone lodged in and tore his esophagus, causing significant injury. Perhaps one day an upstate New York court will write an opinion modeled on Webster bemoaning the hard times on which one of Buffalo’s signature contributions to American cuisine has fallen. But my opposition to boneless "chicken wings” does not leave me bereft of sympathy for Mr. Berkheimer.

Mr. Berkheimer sued the restaurant and its supplier alleging negligence, breach of warranty, adulterated food, misbranded food, and violations of the Ohio Deceptive Trade Practices Act. The trial court granted summary judgment to the defendants, and the appellate court affirmed, finding that "a reasonable consumer could have reasonably anticipated and guarded against the bone at issue in this case.”  The Supreme Court of Ohio accepted jurisdiction to address whether a jury needed to decide "whether a consumer should reasonably expect, anticipate, and guard against an injurious substance that has specifically been disclaimed by the seller."

The court makes much of its “hybrid” foreign-natural test, but it seems like there is really only one test, which is to ask whether a reasonable consumer would have expected the object to be in their food. If the object if foreign, the answer is almost always no. If the object is natural, then the test is more contextual. Should one expect fragments of shell when one eats oysters? Should one be on the lookout for chicken bones in a chicken-pot pie? Those questions are hard to answer and bound by the facts of the case and the context of the dining culture. Webster was attuned to this, noting that a person eating fish chowder in a New England fishing village should come to the experience with different expectations than some land lubber in Des Moines eating fish chowder in a Denny’s. 

By Clotee Pridgen Allochuku CC BY 2.0

I am completely flummoxed by the majority's analysis in this case. The court treats it exclusively as a negligence case, with only a passing reference to warranties. Notwithstanding a dissent, the majority declares that, “regarding the food item’s being called a 'boneless wing,' it is common sense that that label was merely a description of the cooking style.” Given the dissent’s opposing view of the dictates of common sense, why not ask jurors for their view of what “boneless” means? The majority notes that such "boneless chicken wings” likely aren’t actual wings any more than chicken fingers are actual fingers. It’s a good point, but “boneless” is not a “cooking style;” my common sense tells me that “boneless” means that there are no bones. As the dissent points out, that’s what the dictionaries tell us as well. The majority draws an analogy to fish filets, which may contain some bones, but chicken bones are not like fish bones. In any case, what about this is a question of law that judges are uniquely qualified to answer?

At first I had no idea what the Majority meant by calling “boneless” a “cooking style.” The court implied that “boneless” was no more a guarantee than was calling the food item “wings.”  The court does not cite the relevant language from the UCC’s § 2-313, which states:

(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.

To my mind, “boneless” does not describe a cooking style but is a description of the goods and thus a warranty. And “boneless” is a basis of the bargain in a way that “wings” is not, because, I thought, nobody would sue because their boneless chicken wings were actually made of breast meat. The “wings” part was not a basis of the bargain.  Indeed, in the case of “chicken wings” or “Buffalo chicken wings,” the words do describe a cooking style. “Boneless” does not.

A colleague informed me otherwise. A frequent filer has initiated a class action claiming Buffalo Wild Wings engages in a deceptive business practice in calling its product “chicken wings” when it is in fact breast meat. Now that seems like a bone-headed complaint to me.

I have no opinion on whether the case is correctly decided as a matter of tort doctrine, but if the question is whether a reasonable consumer should expect a chicken wing that is warranted as “boneless” to contain a five-centimeter shiv-like chicken bone, that question must be put to a jury. There is no lump of flesh with a hidden legal bone for a court to extract. The jury can be instructed on the reasonable expectations of the biter standard and take it from there. However, this case is distinguishable from Webster and similar cases, because those are about the implied warranty of merchantability. Here we have an express warranty. Am I the only one screaming “What part of ‘boneless’ do you not understand?"

The dissent eloquently makes the obvious case that the question should have been put to the jury. That, at the very least, is the right position, but given that the chicken in question was warranted as boneless, I’m not certain why there is a set of fact on which the supplier at least is not liable for breach of an express warranty. The dissent acknowledges that there was a warranty here and hectors the majority for its proclamations of common-sense conclusions that are so confident that they can be made without any citation to authority. But the dissent too, while talking of warranties, nonetheless treats the issue as one of negligence. Reasonable care does not shield the issuer of an express warranty from liability.

Plaintiff's attorney may not have teed up the issue as clearly as one would wish. It is not clear whether the warranty claim was preserved on appeal. Moreover, as our co-blogger Sid DeLong pointed out, the best cause of action for plaintiff may have sounded in products liability under § 402A of the Restatement of Torts law.  Under that doctrine, the analysis focuses on the appropriate question: Is a food product that one ordinarily eats by popping it into one’s mouth unreasonably dangerous when it contains a hidden sharp bone over one inch long?