Back in 2016, an Ohio consumer went to a family-owned restaurant and ordered his usual — boneless wings. After eating some of them, one bite went down the wrong way and got stuck in his throat. A few days later, still having the problem and now a fever, he went to the emergency room. There, doctors discovered that a 1-3/8th inch chicken bone had pierced his esophogus causing an infection and other medical issues.
So the consumer sued the restaurant, the restaurant supply house, and the farm where the chicken came from.
The lower court and appeals court both ruled against the consumer. And last week, the Ohio Supreme Court did the same thing.
It its decision, the high court applied two tests to help determine fault. One is the foreign-natural test: “whether the injurious substance found in the food was foreign to or natural to the food.” Ohio courts have determined that if a foreign object like a stone or piece of glass is unexpectedly found in food, then the restaurant may be liable. In this case, finding a piece of a bone in a slice of breaded chicken breast is naturally occurring and would not rise to the level of negligence in their view.
The second test that the court applied is the reasonable expectation test. Ohio courts say they use both these tests to determine liability.
*MOUSE PRINT:
To determine whether a supplier of food breached its duty of care by failing to eliminate an injurious substance from the food, we look to whether the presence of the substance was something that the consumer could have reasonably expected and thus could have guarded against. And whether the substance was foreign to or natural to the food is relevant to determining what the consumer could have reasonably expected.
The consumer had claimed that since the restaurant advertised its food as boneless wings, they should have been boneless. The Supreme Court, going a bit off the rails, replied:
… it is common sense that that label [boneless wings] was merely a description of the cooking style. 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.
The majority of the judges ultimately ruled that the consumer could have reasonably expected and guarded against the naturally occurring object (the bone). But the minority was very vocal in their disagreement. They said just because an object is natural doesn’t mean it could be anticipated by the average consumer in the finished product.
The minority categorized the majority’s assertion that “boneless wings” was merely a cooking style as “jabberwocky.” They believed that a jury should have been given the opportunity to determine if this consumer could reasonably have expected there to be bones in his boneless wings, and whether the restaurant and its suppliers were negligent.
What do you think?
He must not chew his food very well!
Just has boneless wings can’t be expected to be boneless, honorable judges can’t he expected to he honorable
The first step in a boneless chicken cooking recipe is to use boneless chicken. It’s that simple.
The court’s majority ruling could be considered ‘boneheaded’.
Wings, legs and thighs are dark meat. “Boneless” wings are white meat, better known as breast meat. But, no matter where it comes from bones hold it all together in the live/raw product, so one should be aware of that fact when eating.
Why did it take “several” days for the customer to realize that something was caught in his throat?
The restaurant probably gets the boneless wings frozen and pours a large quantity into some cooking oil. Unless this was a separate piece and not somehow attached to the main boneless wing, I don’t necessarily see restaurant at fault. They are most likely breaded and frozen which could make it hard to find the ‘extra’ bone.
Most of the processes used in preparing the food product are probably automated, with no human inspection.
I feel for the customer, but he waited some time before seeking medical care. He is partially at fault for the resulting injury. Surely he had to realize that something was caught in his throat.
The restaurant actually buys boneless breasts and cuts them into strips, according to the case. And the consumer actually cuts each “wing” into two or three pieces before eating.
Why include the farm/farmer? Once a product leaves his farm he technically has no responsibility after. I’m pretty sure he doesn’t sell ‘boneless’ chicken, it leaves his farm whole & goes to a processing plant.
Gert… that is not legally accurate. Would you say once a product leaves the manufacturer only the actual seller at retail could be responsible for defects? In this case, if the manufacturer were somehow negligent, he could have responsibility.
I think Gert is commenting just on this one case, and not manufacturer liability in general. Naturally a manufacturer should be on the hook if there’s something wrong with the product they ship. But in this case, if the product is simply a whole chicken, the farmer can’t be responsible if some processor further down the line leaves a bone in a “boneless wing.”
Otherwise … I could sue Ford when an F-150 runs over my dog. Or chicken.
It feels and reads that the Court(s) are taking a stand on the much stated over-judicious society in making this ruling.
The chicken fingers example I agree goes off the rails even though how many foods are manufactured and processed without the full contents on the label? Or content you need a degree in food chemistry to understand, even though layperson terms are available yet not chosen?
Here is an example of something not on the label (a bone) or a disclaimer (may have bones, please chew carefully) the consumer was impacted legitimately (medical records, assuming hospital kept evidence) and the consumer is left to suffer the medical, financial, and legal losses – including not able to finish eating a paid product after the incident since he could not finish the meal after the incident.
This does not seem to be one of those frivolous lawsuits based upon the reporting. And for this to be blocked by not one but three courts is alarming and makes one feel powerless to even bother reporting this problem as a public service. Let alone take it to this level to encourage better processing to get the bones fully out. This complaint demonstrates this particular chicken part made it through a section of either mechanical and/or human processing ineffectively and will continue to do so since the powers in charge fought this lawsuit and the verdict gives no incentive to quality assure this doesn’t happen again.
See something, say something yields and this person could have died simply by having a reasonable expectation he was ordering something boneless without a disclaimer like on products that say don’t put in microwave without first removing cardboard.
Very disturbing.
I do not understand the court’s logic.
If a product is described as “boneless”, it should be exactly that, unless otherwise qualified on the package (or menu). “Meatless” should be free of meat. “Salt-free” should not contain salt. That is not a “cooking style”.
Some people have serious food allergies and should be able to rely on package or menu declarations: “gluten-free”, “dairy-free”, “no added MSG”, “no almonds”, etc.
My “pitted olives” have an accompanying warning: “may contain pits”. I can be on the lookout for them.
I am not rendering an opinion on whom the liability falls in this case, but I do not believe the court’s decision that no liability exists makes sense.
Boneless? For the judges, more like “spineless.”
So you can now sell a house in Ohio that has radon in the basement and say there isn’t any. Radon is a naturally occurring element, right?
Sounds silly, but I can see all sorts of directions you can go with this ruling.
Lesson learned: From this day on I guess I will just have to closely examine my food before taking a bite.
I thought here in Massachusetts that if you ordered something that was natural to a product you could not sue. I bought a chocolate cake and it was filled with egg shells. I was under the impression since eggs were in the manufacture that you could not sue if you were hurt. That was 20 yrs. ago.
Nancy… I am not familiar with our case law here on this subject. Sorry.
There’s always a chance of finding a foreign object in food, whether prepared at home or eaten out. There should be no bones in a piece of filleted fish, but it’s incautious to rely on that and to eat carelessly. That was a large bone to miss while eating.
Imagine a one and three-eighth inch bone in your very own mouth. Would you feel it? Would you notice it when chewing your food? It’s the same with fish bones, which are much smaller than chicken bones, when chewing your food you are responsable for being attentive to the presence of hard objects in your mouth before you swallow.