Boneless chicken wings do not have to be bone-free, Ohio’s top court ruled, ending a lawsuit filed by a man who fell ill after swallowing a piece of bone from his order.
Michael Berkheimer sued Wings on Brookwood in 2016, saying the restaurant failed to warn him that the boneless wings could in fact contain bones, a piece of which became lodged in his throat and caused an infection.
The court on Thursday ruled that “boneless wing” refers to “cooking style” and is not to be taken literally.
The 4-3 ruling was peppered with dissent, with one judge calling the majority opinion “utter jabberwocky”.
But a majority of the judges considered being cautious of bones in a boneless wing to be common sense.
Writing for the majority, Justice Joseph T Deters said: “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 chicken wing controversy began in 2016, when Michael Berkheimer was dining with his wife and friends at a restaurant in Hamilton, Ohio.
He ordered what has been described as his “usual” – boneless wings with parmesan garlic sauce – when he noticed a piece go down uncomfortably.
Three days later, he began to feel feverish and went to the emergency room. Doctors discovered a long, thin bone that caused a tear in his oesophagus and a subsequent infection.
Mr Berkheimer later sued the restaurant, accusing them of failing to warn him that the “boneless wings” might contain bones.
In the lawsuit, he also accused the supplier and the farm that produced the chicken of negligence.
Lower courts had dismissed Mr Berkheimer’s suit, which then landed in the state’s supreme court.
A majority of the justices considered it common knowledge that chickens have bones, and sided with the lower courts against him.
“The food item’s label on the menu described a cooking style; it was not a guarantee,” Justice Deters wrote.
However, the dissenting justices felt like the decision should have sat with a jury and not with the court’s justices.
Justice Michael P Donnelly wrote in dissent: “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.
“When they read the word ‘boneless,’ they think that it means ‘without bones,’ as do all sensible people.”
