Restaurant not responsible for man’s injury after bone from ‘boneless’ wing got stuck in his throat, Ohio Supreme Court rules

(CNN) — An Ohio restaurant is not responsible for a customer’s injury after a bone was found in an order of boneless wings, a divided Ohio Supreme Court ruled Thursday, affirming an appellate court’s earlier decision.

Michael Berkheimer filed a lawsuit in 2017 after he ordered boneless wings a year earlier from Wings on Brookwood in Hamilton, Ohio, and he got a bone lodged in his throat, leading to medical issues, according to court records.

In a 4-3 ruling, the state Supreme Court said Thursday that a “boneless” label on the menu “described a cooking style; it was not a guarantee.” It also noted a lower court’s earlier ruling that “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.”

“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 state Supreme Court opinion says.

CNN has sought comment from Wings on Brookwood and Berkheimer’s attorneys.

Berkheimer’s lawsuit came after he visited the restaurant in 2016 with his wife and friends and placed his “usual order” of boneless wings with parmesan garlic sauce, according to court documents. While he was eating a boneless wing, Berkheimer says he felt a piece “go down the wrong pipe.”

Over the next couple of days, he had trouble eating and had a fever that led him to eventually visit the emergency room, according to court documents.

Berkheimer’s medical records said that a doctor found a “5cm-long chicken bone” lodged in his esophagus, according to court records. The bone tore part of his esophagus and later became infected, which led to additional ongoing medical issues, the lawsuit says.

Berkheimer sued the restaurant, a food supplier, and a chicken farm in the Butler County Common Pleas Court in 2017. That court – siding with the sellers and dismissing the lawsuit – was the one that said the presence of bone fragments in meat dishes was common enough that a consumer should guard against it, court documents and a release from the Supreme Court say.

Berkheimer then appealed to the Twelfth District Court, which also agreed with the trial court. In 2023, Berkheimer appealed to the Supreme Court, which agreed to hear the case, the release said.

On Thursday, the Ohio Supreme Court affirmed the dismissal of the lawsuit, saying the customer could have guarded against a piece of bone in his meal.

“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,’” Justice Joseph T. Deters said, writing for the majority.

Dissenting justices, however, said a jury should have been able to hear the case and that it would have been “able to determine, better than any court, what a consumer reasonably expects when ordering boneless wings.”

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