Diners can’t reasonably expect boneless wings to actually be free of bones, the Ohio Supreme Court ruled Thursday, ruling against an Ohio man who tore his esophagus while chowing down on chicken.
In a 4-3 divided decision, the Ohio Supreme Court dismissed the lawsuit brought by Michael Berkheimer in 2017 against a wings restaurant and its chicken suppliers. The suit had already been dismissed twice in lower courts before the matter was escalated to the Ohio Supreme Court.
The event that sparked the lawsuit occurred in 2016, when Berkheimer was dining with his wife and a few friends at an Ohio restaurant called Wings on Brookwood. He ordered his usual — boneless wings with parmesan garlic sauce — when he felt “a piece of meat (go) down the wrong pipe,” according to a court press release.
Berkheimer tried to clear his throat but was unsuccessful. Then, over the course of the next three days, he experienced trouble eating and spiked a fever.
When he went to the emergency room, doctors discovered a five-centimetre-long chicken bone lodged in his esophagus. The bone ended up causing a bacterial infection, according to Berkheimer’s lawsuit, which resulted in ongoing medical issues.
Berkheimer sued Wings on Brookwood, saying the restaurant failed to warn him that so-called “boneless wings” — which are nuggets of boneless, skinless breast meat — could contain bones. The suit also named the supplier and the farm that produced the chicken, claiming all were negligent.
Get daily National news
But according to the majority opinion of the Ohio Supreme Court, “boneless wings” refers to a cooking style, and Berkheimer, and indeed all chicken consumers, should reasonably expect and guard against bones when eating chicken.
“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 Joseph T. Deters wrote.
In March 2023, a Chicago man sued Buffalo Wild Wings for false advertising and “deceptive” business practices because their boneless wings are made of chicken breast instead of deboned chicken wings. The case was dismissed by a judge.
The dissenting judges on the Ohio Supreme Court, however, believe Berkheimer’s case should go to a jury trial, maintaining that people should reasonably expect their boneless wings to be boneless.
“The question must be asked: Does anyone really believe that the parents in this country who feed their young children boneless wings or chicken tenders or chicken nuggets or chicken fingers expect bones to be in the chicken? Of course they don’t,” Justice Michael P. Donnelly wrote.
“When they read the word ‘boneless,’ they think that it means ‘without bones,’ as do all sensible people.”
— With files from The Associated Press