The Ohio Supreme Court ruled that “boneless” chicken wings are a cooking style and that customers cannot expect every one of those wings to be bone-free.

The 4-3 decision upheld earlier rulings by lower courts that dismissed a suit filed by Michael Berkheimer.



Mr. Berkheimer ate a boneless wing at a Hamilton, Ohio, restaurant, felt something go down wrong and developed a fever three days later. A doctor discovered that he had swallowed a bone, which got lodged and tore his esophagus, leading him to become infected, according to court documents.

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Mr. Berkheimer sued the restaurant, its supplier and the farm that provided the chicken, accusing all three parties of negligence.

The majority opinion written by Justice Joseph Deters contended that, since it is common knowledge that chickens have bones, customers should expect to possibly find bones in chicken products.

Determining whether a food provider is negligent depends on whether the product that injured a customer is natural or foreign to the food product, the majority said. The wings were prepared by cutting up a chicken breast much like a fish filet, and existing precedent held that customers should reasonably expect the possibility of bone in fish filets.

As such, the majority argued, Mr. Berkheimer should have expected a bone even in his boneless chicken wings.

“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,” Justice Deters wrote.

Justice Michael Donnelly wrote the dissent with Justices Melody Stewart and Jennifer Brunner joining him.

“The absurdity of this result is accentuated by some of the majority’s explanation,” Justice Donnelly wrote, calling the idea that “boneless” only describes cooking style “jabberwocky” and adding that “there is, of course, no authority for this assertion, because no sensible person has ever written such a thing.”

They argued that the Ohio Supreme Court and the court of appeals before it should have let the case go before a jury.

“Jurors likely have eaten boneless wings, some will have fed boneless wings to their children, and jurors have common sense. They will be able to determine, better than any court, what a consumer reasonably expects when ordering boneless wings,” Justice Donnelly wrote.

Mr. Berkheimer’s attorneys agree that a jury trial is warranted.

“Mr. Berkheimer 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,” attorney Robb Stokar told the Dayton Daily News.