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?