Restaurants Not Liable When a Customer Can Reasonably Expect and Guard Against Hazardous Substance in Food

by Carrie Starts, Esq.

The Ohio Supreme Court recently issued a favorable ruling for Ohio restaurants in the case of Berkheimer v. REKM, L.L.C., Slip Opinion No. 2024-Ohio-2787, which determined that an Ohio restaurant was not responsible for an injury to its customer caused by a bone found in a boneless chicken wing. This 4-3 decision, decided on July 25, 2024, demonstrates that Ohio restaurants will not be held responsible for a hazardous substance in food that a customer can reasonably expect to encounter and guard against.

The facts of the case indicated that in 2016, a customer at Wings on Brookwood ordered his usual, boneless wings and parmesan garlic sauce. In the middle of eating his meal, he suddenly felt discomfort, which lasted three days before he was taken to the emergency room. It was found that he had a “5cm-long chicken bone” that tore his esophagus and caused a bacterial infection.

The case was dismissed at the summary judgment stage in the lower court, which decision was affirmed by the Twelfth District Court of Appeals. The case eventually found its way to the Ohio Supreme Court, where the customer alleged that the lower courts wrongfully dismissed his negligence claim, focusing on the wrong question of whether the bone that injured him was natural to the boneless wing, rather than the reasonableness behind him finding a bone in a boneless wing. Justice Joseph T. Deters, writing for the Ohio Supreme Court majority explained that “’ boneless wings’ are a cooking style and not a guarantee that fragments of bones would not be present in the dish.”

Following the method used in the Supreme Court decision of Allen v. Grafton, the Court combined the “foreign-natural” test and the “reasonable expectation test,” establishing that a food seller is not liable when a customer could reasonably expect and guard against a hazardous substance in food. In applying its holding to the fact of the case, the Court stated, “whether the substance was foreign to or natural to the food is relevant to determining what the consumer could have reasonably expected.” Ultimately, the Court found that where there shall be a reasonable expectation that a chicken bone may be found in a boneless wing, then the consumer shall be cautious of such a possibility. The decision clearly establishes that customers have a duty to guard against hazardous substances that can be reasonably expected in the food being consumed.

If you have any questions about this decision by the Ohio Supreme Court or how it affects you or those around you, please contact one of Reminger’s Retail, Hospitality, and Entertainment attorneys.