Readers with a keen memory of their law school torts class (or bar-exam review course) may have a recollection of rules applicable to personal injury claims arising from foreign or unexpected substances in food. Depending on the reader's age and jurisdiction, cases distinguishing between genuinely "foreign" matter (shards of glass) and naturally occurring but unexpected matter (pits in cherry pie) may come to mind. And indeed, many of the older cases draw such a distinction.
As does the case that headlines this blog post, many of the cases involve chicken. For example, the plaintiff in the oft-cited case of Mix v. Ingersoll Candy Co., 59 P.2d 144 (Cal. 1936), alleged injuries from a "sharp and pointed fragment and/or sliver of chicken bone" contained in a chicken pie served at the defendant's restaurant. His complaint alleged causes of action for breach of implied warranty and negligence. The California Supreme Court affirmed judgment in the defendant's favor, recognizing that while warranty and negligence claims might be viable in other circumstances, they failed on the facts alleged by the plaintiff.
As to the warranty claim, the court held that the presence in food of bones that were "natural to the type of meat served" did not breach the terms of the implied warranty that food be reasonably fit for human consumption:
[W]e are of the opinion that despite the fact that a chicken bone may occasionally be encountered in a chicken pie, such chicken pie, in the absence of some further defect, is reasonably fit for human consumption. Bones which are natural to the type of meat served cannot legitimately be called a foreign substance, and a consumer who eats meat dishes ought to anticipate and be on his guard against the presence of such bones. At least he cannot hold the restaurant keeper whose representation implied by law is that the meat dish is reasonably fit for human consumption, liable for any injury occurring as a result of the presence of a chicken bone in such chicken pie.
Id. at 148. The court held that "the same logic and reasoning" doomed the plaintiff's negligence claim:
We do not believe it is a question of contributory negligence on the part of the customer, but a question of whether or not a restaurant keeper in the exercise of due care is required to serve in every instance a perfect chicken pie, in that all bones are entirely eliminated. If the customer has no right to expect such a perfect product, and we think he is not so entitled, then it cannot be said that it was negligence on the part of the restaurant keeper to fail to furnish an entirely boneless chicken pie.
Id.
The Mix distinction between natural and foreign substances met its partial demise in California in another case involving chicken bones, this time a one-inch bone in a chicken enchilada. In Mexicali Rose v. Superior Court, 822 P.2d 1292 (Cal. 1992), the court overruled Mix as it applied to claims for negligence in preparation of the food at issue but found that the natural/foreign distinction was still valid with respect to warranty claims. Id. at 1302 (explaining that "a reasonable plaintiff cannot expect a chicken enchilada to always be free of bones, and defendants owe no duty to provide a perfect enchilada"). With respect to claims for negligence in preparation of the food, the rule of Mix that would have also barred that claim was overruled:
[W]e believe a patron can reasonably expect that a restaurateur will exercise reasonable care in preparing chicken enchiladas so that any natural substances contained in the food will not be either of such size, shape or quantity to cause injury when consumed. It is reasonably foreseeable that a sizable bone could cause the unsuspecting patron substantial injury if swallowed. Under these principles, we believe it is a question for the trier of fact to determine whether the presence of the injury-producing substance was caused by the failure of the defendants to exercise reasonable care in the preparation of the food, and whether the breach of the duty to exercise such care caused the consumer's injury.
Id. at 1303.
Having discussed chicken pie and chicken enchiladas, we turn to chicken wings, or more specifically, "boneless" chicken wings. Contrary to what aficionados of "The Far Side" might imagine, boneless chicken wings do not come from a ranch that raises boneless chickens. In at least at one restaurant in Ohio, they are made from boneless, skinless chicken breasts that arrive at the restaurant already having been butterflied by the supplier. Berkheimer v. REKM, LLC, 2024 WL 3528175 (Ohio July 25, 2024). From there, a cook at the restaurant cuts each breast into about 20 one-inch chunks to prepare as "wings."
The plaintiff in this case seems to have been a regular at the defendant restaurant, because the court's opinion states that he placed his "usual order" of boneless wings with parmesan garlic sauce, and followed his "normal practice" of cutting each boneless wing into two or three pieces before eating it. He testified that one piece "felt like it went down the wrong pipe." Several days later, unable to keep food down and exhibiting a fever, he was treated at an emergency room where a "5cm-long chicken bone" was found lodged in his esophagus. The case reached the Ohio Supreme Court from the intermediate appellate court's affirmance of the trial court's grant of summary judgment to all defendants.
The court affirmed in a 4-3 decision over a sharply worded dissent. The majority and dissent at least nominally agreed on the applicable legal standard. Discussing a 1960 case in which the plaintiff was injured by a shell in his order of fried oysters, the court stated the Ohio rule as blending the "foreign-natural" and "reasonable-expectation" tests, such that the presence of an unintended-but-natural item was more likely to be within the reasonable expectation of a consumer than a truly foreign object. Id. at *4 (explaining that "whether the substance was foreign to or natural to the food is relevant to determining what the consumer could have reasonably expected"). The dissent stated that it had "no problem with the law that the majority opinion posits," but argued that the majority improperly elevated the foreign-natural test from "a factor" to "the factor" in the determination. Id. at *7 ("The majority's decision ossifies one factor as the rule and declares that if a substance is 'natural' to a food product, a consumer who is injured . . . has no recourse regardless of how negligent the supplier or provider might have been.") (Donnelly, J., dissenting).
On one reading, the differences between the majority and dissenting opinions were less about the law governing injuries from unexpected (not but foreign) bones in food and more about the standards for summary judgment. The majority quoted the court's 1960 decision involving oyster shells for the observation that "the possible presence of a piece of oyster shell in or attached to an oyster is so well known to anyone who eats oysters that we can say as a matter of law that one who eats oysters can reasonably anticipate and guard against eating such as piece of shell, especially where it is as big a piece as the one described in plaintiff's petition." Id. at *3 (quoting Allen v. Grafton, 164 N.E.2d 167, 174-75 (Ohio 1960). From this, it held that "[l]ike the oyster shell at issue in Allen, it is apparent that the bone ingested by Berkheimer was so large relative to the size of the food item he was eating that, as a matter of law, he reasonably could have guarded against it." Id. at *4.
The majority made short work of the restaurant's description of the dish as boneless chicken wings:
[R]regarding the food item's being called a "boneless wing," it is common sense that that label 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.
Id. at *5.
Also appealing to common sense, the dissenting opinion criticized this conclusion as ignoring the plain meaning of "boneless" and reasons why people order "boneless" food items:
The absurdity of this result is accentuated by some of the majority's explanation for it, which reads like a Lewis Carroll piece of fiction. The majority opinion states that "it is common sense that [the label 'boneless wing'] was merely a description of the cooking style." Jabberwocky. There is, of course, no authority for this assertion, because no sensible person has ever written such a thing. The majority opinion also states that "[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." More utter jabberwocky. Still, you have to give the majority its due; it realizes that boneless wings are not actually wings and that chicken fingers are not actually fingers.
The majority's burst of common sense was short-lived, however, because its opinion also says that no person would conclude that a restaurant's use of the word "boneless" on a menu was the equivalent of the restaurant's "warranting the absence of bones." Actually, that is exactly what people think. It is, not surprisingly, also what dictionaries say.
* * *
The reasonable expectation that a person has when someone sells or serves him or her boneless chicken wings is that the chicken does not have bones in it. Instead of applying the reasonable-expectation test to a simple word—"boneless"—that needs no explanation, the majority has chosen to squint at that word until . . . "boneless" means "you should expect bones."
Id. at *8 (citations omitted).
Readers who, like this author, are unfamiliar with Ohio politics might conclude that the court's division in this case reflected a mine-run but vehement disagreement on personal injury cases. After all, the 1960 Allen case involving shell in fried oysters also divided the Ohio Supreme Court 4-3. But they would, like this author, be wrong.
On the day the opinion came out, the Ohio Democratic Party issued a press release headlined "The Republican-Controlled Ohio Supreme Court Just Ruled That Boneless Chicken Wings Can Have Bones." The Columbus Dispatch wrote that "Republicans on the Ohio Supreme Court ruled that bones are a natural part of chicken so a consumer should be on guard for them − even in boneless wings. . . . But Democrats on the court called that reasoning absurd." And a state senator said he would look into introducing consumer-protection legislation in an attempt to remedy what he characterized as the majority's lack of care about the "regular Ohioan."
Meanwhile, take care to slice your "boneless chicken wings" before eating them, because they are actually made from chicken breast and may contain sharp fragments of keel bone. And remember that chickens don't have fingers.
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