Eight years ago, a Butler County diner at Wings on Brookwood restaurant in Hamilton, Michael Berkheimer, ordered boneless wings.
Berkheimer, the plaintiff in the case, said one of the pieces had a bone, which tore his esophagus, causing a bacterial infection — and changing his life.
He and his Cincinnati attorney contended in court documents that as a result of his esophageal injury, Berkheimer required surgeries, a pair of medically-induced comas and suffered heart and lung damage.
Berkheimer sued the restaurant, its food supplier, and a chicken farm. A trial court decided that the defendants were not negligent in serving or supplying the wing, and the Twelfth District Court of Appeals affirmed that judgment, the Supreme Court noted.
“We conclude that the court of appeals got it right,” Justice Joseph Deters wrote for the majority in the case. “In a negligence case involving an injurious substance in food, it is true ... that whether there was a breach of a duty of care by a supplier of the food depends on whether the consumer could have reasonably expected the presence of the injurious substance in the food and thus could have guarded against it.
“But that consideration is informed by whether the injurious substance is foreign to or natural to the food,” Deters added.
And because the chicken bone was natural to the chicken meat used to produce the “boneless” wings, the Supreme Court majority agreed that it cannot be considered an unnatural or foreign substance.
The court ruling was 4-3.
Justice Michael P. Donnelly, dissenting with justices Melody Stewart and Jennifer Brunner, found the majority ruling distasteful.
“The result in this case is another nail in the coffin of the American jury system,” Donnelly wrote. “The majority has taken it upon itself to decide the facts of this case and has determined that there is no set of facts under which appellant, Michael Berkheimer, the plaintiff in the underlying negligence action, can establish the defendants’ negligence.
“Today, the majority declares as a matter of law that no reasonable person could consider the facts of this case and reach a conclusion contrary to the one it reaches. This is, of course, patently untrue given that I and two other justices of this court dissent from the majority’s judgment,” he added.
Cincinnati attorney Robb Stokar, who represented Berkheimer, said in an email that he believes the dissent was correct.
“Mr. Berkheimer suffered catastrophic injuries from a bone contained in a menu item unambiguously advertised as ‘boneless’ at every level of commerce. All we asked is that a jury be able to make a commonsense determination as to whether he should be able to recover for his injuries,” Stokar wrote. “But the court’s majority ruled otherwise, simultaneously denying him that opportunity, and rendering the word ‘boneless’ completely meaningless.”
In a ruling filed Monday, Dec. 9, the Ohio Supreme Court ruled 4-3 against Berkehimer’s request for the court to reconsider the case.
Justice Patrick Fischer, who voted against hearing the case, said the Supreme Court is a court of law and not a court of public opinion.
“Given the concerns noted above, I wish to emphasize that decisions on motions for reconsideration like this one are not, and should never be, based on newspaper articles and writings by nonlawyers who have not reviewed the entire judicial case file and applicable case,” Fischer said.
Justice Melody Stewart, who dissented, said a jury should be deciding the case, not four justices.
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