Really.
So says the Ohio Supreme Court in a dumb cluck of a ruling in which the majority opinion was written by someone who shouldn’t be a judge.
Michael Berkheimer, in a lawsuit, said he went to a restaurant and ordered boneless wings. He took a bite and felt something go down his throat. He tried to throw it up but couldn’t. He ended up in the emergency room, where doctors found a two-inch piece of bone had torn his esophagus and caused other injuries. He sued the restaurant, food supplier and a chicken farm.
Lower courts ruled, in essence, that Berkheimer didn’t have a case, and the Supreme Court agreed with the twisted logic that’s nothing to crow about.
The court affirmed a ruling — are you ready for this? — that the phrase “boneless wings” doesn’t mean there aren’t any bones in the chicken.
Making matters worse, the Supreme Court ruled the defendants were entitled to summary judgment, which means the court rules for one party, and the case ends without a jury trial.
And making matters even worse, Justice Joseph Deters wrote the majority opinion. In a controversial move, Gov. Mike DeWine appointed Deters, the former Hamilton County prosecutor, to the bench even though he has no judicial experience. None. Not with Judge Harry Stone on Night Court, not with Judge Judy, not even with Judge Dredd.
Justice Pat DeWine, the governor’s son, asked during a December hearing, “Most people know that chickens, there aren’t such things as chickens without bones out there, right?” He also asked whether the same boneless logic would apply to “fish fillets.”
Huh?
Boneless means, “without a bone,” according to the Cambridge Dictionary. Other dictionaries say, “without bones; specif., with the bones removed,” and “being without a bone or bones.”
Any reasonable person who sees an item advertised as “boneless” expects there to be “no bones” within. Please find me someone — anyone — who takes time to analyze the bone structure and possible bone-to-meat permutations of an advertised boneless product. Boneless means boneless, not might, could, or possibly maybe have bones.
By this logic, it would be fine if a boneless pork chop order comes with a portion of hairy pig snout because pigs have noses. If a boneless ribeye contains a piece of cow ear, no problem because, well, cows have ears. How else can they hear?
The ruling throws into chaos what labeling does and doesn’t mean. What about products marked non-alcohol beer, lactose or gluten-free? Are those now off the hook? Do consumers have to call the manufacturers and find out precisely how much of a specific substance is in each item?
Sen. Bill DeMora (D-Columbus), wants to mandate, through legislation, that Ohio courts use a “common sense test” to determine whether cases can proceed. That’s a nice idea that won’t fly since one person’s “common sense” is another person’s “stupid.”
But the biggest issue involves refusing to allow the case to go before a jury. That blame rests with all the courts that heard the case, but especially the Supremes, who could have righted a wrong but instead laid an egg.
How do you think jurors would have responded to this simple question: When you order boneless wings, do you expect them to be bone-free?
The answer, for most, would be a resounding yes.
That doesn’t mean that Berkheimer would have won his case — he never got a chance to try to prove his position. He should have because this isn’t some frivolous issue. He told the Cincinnati Enquirer he’s suffering from life-long health issues as a result of swallowing that bone.
The Ohio Supreme Court’s 4-3 decision raises more questions than it answers. It tells the people of the state labels mean nothing for reasons as confounding as the ruling.
The court didn’t issue a boneless ruling. It issued a boneheaded one.
Ray Marcano’s column appears on these pages each Sunday.
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