Sen. William P. DeMora (D-Columbus) introduced Senate Bill 38 in the Ohio Senate, which aims to create guidelines to determine liability when someone digests food containing a substance that may cause injury.
The bill was made in response to Berkheimer v. REKM L.L.C. being dismissed by the Ohio Supreme Court. The suit was filed after Michael Berkheimer consumed a “boneless chicken wing” at Wings on Brookwood and choked on a 5-centimeter-long bone found in it. Three days after eating the bone, Berkheimer was hospitalized with a fever. DeMora said Berkheimer fell into a coma and had to have multiple surgeries.
“The Constitution says our system of justice is based on being tried by a jury of your peers,” DeMora said. “If there's negligence, like having a bone in a boneless wing, there's got to be a remedy for somebody that was injured by that.”
Liability will be determined by whether a person could reasonably expect the food to contain harmful material and could guard against it.
DeMora said it is common sense to not anticipate finding a bone in boneless wings, just like when someone expects a cup of hot coffee to be hot.
“A jury should certainly tell the difference between somebody who orders boneless wings and expects not to have a bone in them and somebody who orders soup or coffee or something that's served hot … and if they spill it on themselves and get burned, well of course spilling hot liquid on yourself is going to burn you,” DeMora said.
During the case, the Ohio Supreme Court ruled it is reasonable for a person to expect to find a bone in boneless chicken because bones are naturally occurring.
“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,” the court case reads.
Berkheimer v. REKM L.L.C. also cited Allen v. Grafton, a previous case from 1960 that established the "foreign-natural" test and "reasonable expectation" test.
Originally, Berkheimer v. REKM L.L.C. was tried in the Court of Appeals for Butler County, which said Berkheimer held no claim by utilizing the tests. The Ohio Supreme Court ruled the tests were applied correctly, and Berkheimer’s appeal held no merit.
“This is ludicrous,” DeMora said. “I don't understand how four people who are supposed to be educated come up with that kind of decision when 99% of Ohioans who have boneless wings expect to have no bones in it.”
DeMora said the bill is intended to hold large corporations accountable for their responsibilities.
“Wednesdays (at Buffalo Wild Wings), they have a special all-you-can-eat boneless wings deal, and I don't expect a bone,” DeMora said. “Ordinary human beings when you go to (Buffalo Wild Wings) on Wednesday night for all you can eat boneless wings, you don't expect to find a bone because you're paying more for boneless wings.”
Hot Box Chicken Fingers & Tots, located at 74 N. Court St., is a restaurant specializing in breaded chicken tenders. Kevin McNamara, the owner of Hot Box, said the restaurant rarely receives a shipment of tenders with bones.
“It's usually a wishbone segment based on that’s where the tenders are on the bird,” McNamara said. “We hand bread all of our chicken, so we're holding and handling every piece of chicken that we serve. We notice if there's a bone there.”
McNamara said he thinks there is some common sense needed among the consumers and business operators.
“If we saw a bone in our chicken, we wouldn't go ahead and bread it and serve it,” McNamara said. “If I did (as a consumer), I would bring it to the restaurant's attention. Generally, as long as I had a satisfying meal, I'd be good with just letting them know, ‘Hey, there was a bone here.’”
McNamara said Berkheimer v. REKM L.L.C. is a frivolous case. Restaurant operators run on a slim margin of 5%, according to the National Restaurant Association.
“Ultimately, the party responsible would be the farmer that’s raising the chickens and then sending them for processing,” McNamara said. “The processor is really the most responsible. (My restaurant) is that last point of contact before it hits the plate.”
Currently, Ohio SB 38 is in the Ohio Senate committee and has not been scheduled for a proponent or opponent testimony. DeMora said he hopes to be able to have another hearing for the bill, but that is out of his control.
