COLUMBUS, Ohio (WCMH) – The Ohio Supreme Court’s viral ruling that customers who order boneless chicken wings should expect bones has inspired a lawmaker to introduce a bill that aims to hold food companies accountable.
Sen. Bill DeMora (D-Columbus) introduced Senate Bill 38 in late January, which would set statewide standards in lawsuits regarding an injury caused by food. Dubbed the "boneless wing bill" by DeMora, the legislation would mandate that juries determine the liability of a restaurant or food supplier by deciding whether the injured person had a “reasonable expectation that the food did not contain a substance that is injurious to human health.”
Vivek Ramaswamy will reportedly kick off bid for Ohio governor on Feb. 24“A [reasonable expectation] test means what would the average person think about a certain situation,” DeMora said. “I don't know what normal person in the United States doesn't think boneless means without bones.”
DeMora said the bill is in direct response to a July 2024 Ohio Supreme Court case, in which justices ruled bones are a natural part of chicken, so consumers should be on guard for them – even in wings labeled as “boneless.” The ruling came after a man named Michael Berkheimer got a bone stuck in his throat after eating a “boneless wing” and attempted to sue the restaurant that served it to him.
A Butler County Common Pleas Court granted summary judgment -- meaning the case was decided without a jury trial -- siding with the companies. Judges may take this course of action when they determine the evidence clearly leans a certain way and there are no significantly disputed facts that need to be decided by a jury. Berkheimer fought against this ruling; however, the 12th District Court of Appeals once again ruled against him, before the case went to the Ohio Supreme Court.
The state's highest court also sided with the companies, preventing Berkheimer from receiving a jury trial. Due to this, SB 38 would also mandate that all civil food injury cases go before a jury of one’s peers rather than be decided by a judge.
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DeMora said the justices’ ruling made Ohio the “laughing stock of the nation.” Shortly after the court’s decision, the ruling drew national headlines and online criticism, with Late Show host Stephen Colbert calling the ruling “hot legal garbage.” If the bill were signed into law, it would not undo the Supreme Court’s decision in Berkheimer’s case, but would rather set a new precedent going forward.
The case originated from a 2016 incident when Berkheimer went to the Butler County restaurant Wings on Brookwood and ordered boneless wings. He cut each of his wings into a few pieces before eating them. When he ate a piece of his chicken, he testified it felt like a piece of meat went down the wrong pipe.
In the following days, he experienced a fever and was unable to keep food down. He went to the emergency room, where a doctor discovered a five-centimeter chicken bone lodged in his esophagus. After multiple surgeries, weeks in the hospital and the prolonged use of an oxygen tank, Berkheimer was left with lasting heart and lung damage and a partially paralyzed diaphragm, according to court filings. In 2017, Berkheimer sued the restaurant owners, as well as the chicken suppliers and processors.
After multiple legal failures, Berkheimer brought the case to the Ohio Supreme Court, arguing that lower courts did not consider the fact that the meal was advertised as boneless and gave no warning that a bone might be in the dish. To make its decision, the state’s highest court used a blend of food liability legal principles, including the reasonable expectation test and the foreign natural test, which considers whether the object that caused the injury was a foreign object or a natural part of the food to make.
The Spectrum: House Minority Leader Russo; Jim TresselThe majority opinion stated it is “common sense” that the label was merely a description of the cooking style, not a guarantee of no bones. The justices argued since bones are natural to chicken, such as pieces of shell are natural to oysters, Berkheimer could have reasonably expected and guarded against the bone.
SB 38 was referred to the Senate’s Judiciary Committee, where it awaits proponent and opponent testimony. It currently has one Democrat cosponsor.
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