[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as 

Berkheimer v. REKM, L.L.C., Slip Opinion No. 2024-Ohio-2787.]

 

NOTICE

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published.

SLIP OPINION NO. 2024-OHIO-2787

BERKHEIMER, APPELLANT, v. REKM, L.L.C., D.B.A. WINGS ON BROOKWOOD

ET AL., APPELLEES.

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as Berkheimer v. REKM, L.L.C., Slip Opinion No. 

2024-Ohio-2787.]

Civil law—Negligence—Suppliers of food—In negligence cases involving an 

injurious substance in food, the correct analysis is that adopted in Allen v. 

Grafton—No breach of duty occurs when consumer could have reasonably 

expected and guarded against presence of injurious substance in food, and 

what consumer could have reasonably expected is informed by whether the 

injurious substance in the food is foreign to or natural to the food—Court 

of appeals’ judgment affirmed.

(No. 2023-0293—Submitted December 12, 2023—Decided July 25, 2024.)

APPEAL from the Court of Appeals for Butler County,

No. CA2022-03-026, 2023-Ohio-116.

__________________
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DETERS, J., authored the opinion of the court, which KENNEDY, C.J., and 

FISCHER and DEWINE, JJ., joined. DONNELLY, J., dissented, with an opinion joined 

by STEWART and BRUNNER, JJ.

DETERS, J.

{¶ 1} Michael Berkheimer sued a restaurant, its food supplier, and a chicken 

farm after he suffered serious medical problems resulting from getting a chicken 

bone lodged in his throat while he was eating a “boneless wing” served by the 

restaurant. The trial court determined that as a matter of law, the defendants were 

not negligent in serving or supplying the boneless wing, and the Twelfth District 

Court of Appeals affirmed that judgment.

{¶ 2} Berkheimer contends that the court of appeals focused on the wrong 

question—whether the bone that injured him was natural to the boneless wing—in 

incorrectly determining that the restaurant did not breach a duty of care in serving 

him the boneless wing. Berkheimer maintains that the relevant question is whether 

he could have reasonably expected to find a bone in a boneless wing. And he argues 

that the resolution of that question should be left to a jury.

{¶ 3} We conclude that the court of appeals got it right. In a negligence 

case involving an injurious substance in food, it is true—as Berkheimer argues—

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. The court of appeals correctly applied this blended analysis in 

determining that there was no material question of fact about whether Berkheimer 

could have reasonably expected a bone to be in the boneless wing and thus could 

have guarded against it. We therefore affirm the judgment of the Twelfth District.
January Term, 2024

3

I. BACKGROUND

{¶ 4} One evening, Berkheimer had dinner with his wife and a small group 

of other people at Wings on Brookwood, a restaurant in Butler County owned by 

REKM, L.L.C. Berkheimer placed his usual order—boneless wings with parmesan 

garlic sauce. According to Berkheimer, there was no warning on the menu 

indicating that the boneless wings could contain bones. He followed his normal 

practice of cutting each boneless wing into two or three pieces before eating it. He 

testified that after he cut the second boneless wing into three pieces and was eating 

the third piece, “[i]t felt like something went down, a piece of meat went down the 

wrong pipe.” He went to the restroom to try to clear whatever was in his throat but 

was unsuccessful.

{¶ 5} In the following days, Berkheimer had a fever and was unable to keep 

food down. Three days after eating the boneless wings, Berkheimer went to an 

emergency room. In response to his wife’s concern that he might have something 

stuck in his throat, a doctor examined Berkheimer’s throat and discovered a thin 

chicken bone lodged in his esophagus. Medical records referred to the object as a 

“5cm-long chicken bone.” According to Berkheimer, the bone tore his esophagus, 

causing a bacterial infection in his thoracic cavity and resulting in ongoing medical 

issues.

{¶ 6} During his deposition, Sam Platt, a cook for Wings on Brookwood,

described the process for preparing boneless wings. Platt explained that the 

boneless wings were made from pre-butterflied, boneless, skinless chicken breasts 

that were supplied to REKM by Gordon Food Service, Inc. (“GFS”). When cutting 

a chicken breast into individual “wings,” he made roughly the same cuts every time, 

resulting in approximately 20 boneless, one-inch chunks. Platt estimated that he 

physically touched about 90 percent of the boneless wings before they were served

to customers.
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{¶ 7} Berkheimer filed a complaint against REKM, GFS, and Wayne 

Farms, L.L.C., the latter of which had sold the chicken to GFS. His complaint 

alleged claims of negligence, breach of warranty, adulterated food, misbranded 

food, and violations of the Ohio Deceptive Trade Practices Act, R.C. 4165.01 et 

seq.

1

{¶ 8} REKM, GFS, and Wayne Farms filed motions for judgment on the 

pleadings, which the trial court granted. The Twelfth District reversed the trial 

court’s judgment, concluding that “[t]he trial court [had] lacked the facts necessary 

to determine beyond doubt that Berkheimer could prove no set of facts that may 

entitle him to relief.” Berkheimer v. REKM, L.L.C., 2018-Ohio-2668, ¶ 17 (12th 

Dist.). The case was remanded to the trial court. Id. at ¶ 28.

{¶ 9} After the parties conducted further discovery, REKM, GFS, and 

Wayne Farms filed motions for summary judgment. The trial court granted the 

motions, determining that common sense dictated that the presence of bone 

fragments in meat dishes—even dishes advertised as “boneless”—is a natural 

enough occurrence that a consumer should reasonably expect it and guard against 

it.

{¶ 10} Berkheimer appealed the trial court’s grant of summary judgment to 

the Twelfth District, which affirmed the trial court’s judgment. Finding that the 

bone was natural to the boneless wing and “would have encompassed nearly the 

entire third bite of the boneless wing,” 2023-Ohio-116, ¶ 29 (12th Dist.), the court

of appeals held that under Ohio law, “a reasonable consumer could have reasonably 

anticipated and guarded against the bone at issue in this case,” id. at ¶ 30.

{¶ 11} We accepted jurisdiction over Berkheimer’s appeal to consider two 

propositions of law:

1. Berkheimer also alleged a subrogation claim against United Healthcare Services, Inc. That claim 

was dismissed.
January Term, 2024

5

1. As a matter of law, whether a consumer should reasonably 

expect, anticipate, and guard against an injurious substance that has 

specifically been disclaimed by the seller is [a] jury question.

2. This Court should bring Ohio in line with the rest of the 

country.

See 2023-Ohio-1769.

II. ANALYSIS

{¶ 12} Berkheimer contends that Wayne Farms, GFS, and REKM were 

negligent in producing, distributing, or serving a boneless wing with a bone in it. 

“[I]n order to establish actionable negligence, one must show the existence of a 

duty, a breach of the duty, and an injury resulting proximately therefrom.” Menifee 

v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77 (1984), citing Di Gildo v. 

Caponi, 18 Ohio St.2d 125 (1969), and Feldman v. Howard, 10 Ohio St.2d 189 

(1967). With respect to a sale of food, this court has framed the question of 

negligence as whether the seller, “in the exercise of ordinary care, should have 

known that [the food] was unfit to eat.” Allen v. Grafton, 170 Ohio St. 249, 251

(1960).

{¶ 13} Berkheimer urges this court to “bring Ohio in line with the rest of 

the country” and adopt what the Twelfth District referred to as the “reasonable

expectation” test, 2023-Ohio-116 at ¶ 19 (12th Dist.), for determining whether a 

food supplier breached a duty of care. While acknowledging that this court already

adopted the reasonable-expectation test in Allen, Berkheimer maintains that the 

Twelfth District erred when it applied what that court referred to as the “foreignnatural” test,

2

2023-Ohio-116 at ¶ 19. As we discuss below, we decline to adopt 

one test to the exclusion of the other. Instead, we reaffirm that Ohio courts should 

2. For ease of discussion in this opinion, we use the labels given to the tests by the Twelfth District.
SUPREME COURT OF OHIO

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use the analysis that we adopted in Allen, which is a blend of the two tests. And 

we conclude that the Twelfth District properly applied the blended analysis.

A. This court has adopted a blend of the “foreign-natural” and “reasonableexpectation” tests

{¶ 14} In Allen, this court considered whether a restaurant owner had 

exercised ordinary care when it served to a patron an order of six fried oysters when 

one of the oysters had a piece of a shell in it. Allen at 251-252. In concluding that 

the oysters were not unfit to eat, this court considered two tests used by courts in 

other states—the foreign-natural test and the reasonable-expectation test. Id. at 

252-259.

{¶ 15} Like its name suggests, the foreign-natural test looks to whether the 

injurious substance found in the food was foreign to or natural to the food. See

Allen, 170 Ohio St. at 252-254. If there was an injurious foreign substance in a

food, the food was not reasonably fit to eat and the supplier breached its duty of 

care. See id. at 253. In Allen, this court considered a case from California in 

discussing the foreign-natural test. Id. at 252. In Mix v. Ingersoll Candy Co., 6 

Cal.2d 674, 676 (1936), a patron of a restaurant was injured when the patron 

swallowed a chicken-bone fragment that was in a chicken pie. In determining 

whether the restaurant owner had been negligent, the court distinguished between 

“the presence in food of bones which are natural to the type of meat served” and 

“the presence of a foreign substance, or an impure and noxious condition of the 

food itself, such as for example, glass, stones, wires or nails in the food served, or 

tainted, decayed, diseased, or infected meats or vegetables.” Mix at 681. In 

concluding that the restaurant owner was not negligent, the court explained that the 

question was 

whether or not a restaurant keeper in the exercise of due care is 

required to serve in every instance a perfect chicken pie, in that all 
January Term, 2024

7

bones are entirely eliminated. If the customer has no right to expect 

such a perfect product, and we think he is not so entitled, then it 

cannot be said that it was negligence on the part of the restaurant 

keeper to fail to furnish an entirely boneless chicken pie.

Id. at 683; see also Brown v. Nebiker, 229 Iowa 1223, 1234 (1941) (“certainly small 

bones in a pork chop are not a foreign substance to the pork chop”); Norris v. Pig’n 

Whistle Sandwich Shop, Inc., 79 Ga.App. 369, 375-377 (1949) (same regarding 

bone fragment in barbecued-pork sandwich); Courter v. Dilbert Bros., Inc., 186 

N.Y.S.2d 334, 338, 344 (1958) (same regarding prune pit in prune butter).

{¶ 16} While other states adopted the foreign-natural test, this court was 

hesitant to embrace it completely. In Allen, this court said it was “inclined to agree” 

with a criticism of the foreign-natural test that stated: “‘Insofar as these cases rest 

on the notion of “naturalness” in the sense that nothing that is an inherent part of 

the raw product itself can be a legal defect, they do not hold water. . . . The better 

test of what is legally defective appears to be what consumers customarily expect 

and guard against.’ ” (Ellipsis added in Allen.) Allen at 258, quoting Dickerson, 

Products Liability and the Food Consumer, § 4.2 and 4.3, at 185 (1951). This court 

determined that if a reasonable consumer would expect to encounter and thus would 

guard against the injurious substance—that is, if the substance is within a

consumer’s reasonable expectation of what might be present in the food—the 

supplier could not be said to have violated its duty of care. See id.

{¶ 17} However, this court did not cast aside the foreign-natural test. The 

test remained relevant to determining whether a supplier of food was negligent: 

“[T]he fact, that something that is served with food and that will cause harm if eaten 

is natural to that food and so not a ‘foreign substance,’ will usually be an important 

factor in determining whether a consumer can reasonably anticipate and guard 

against it.” Id. at 258-259. Thus, “the possible presence of a piece of oyster shell 
SUPREME COURT OF OHIO

8

in or attached to an oyster is so well known to anyone who eats oysters that we can 

say as a matter of law that one who eats oysters can reasonably anticipate and guard 

against eating such a piece of shell, especially where it is as big a piece as the one 

described in plaintiff’s petition.” Id. at 259. This court concluded that the 

restaurant owner was not negligent. Id.

{¶ 18} Today we reaffirm the rule that we adopted in Allen: To determine 

whether a supplier of food breached its duty of care by failing to eliminate an 

injurious substance from the food, we look to whether the presence of the substance 

was something that the consumer could have reasonably expected and thus could 

have guarded against. And whether the substance was foreign to or natural to the 

food is relevant to determining what the consumer could have reasonably expected.

B. The court of appeals got the analysis correct

{¶ 19} In addition to seemingly arguing that we should adopt the 

reasonable-expectation test to the exclusion of the foreign-natural test—a

conclusion we reject—Berkheimer contends that “whether a consumer should 

reasonably expect to encounter an injurious substance that the seller specifically 

avers has been removed should, at a minimum (and assuming the averment is bona 

fide) always be a jury question.” We decline to paint such a broad line. Berkheimer 

has demonstrated no reason why a negligence case involving an injurious substance 

in food should be treated differently from any other negligence case for purposes 

of summary judgment. Thus, we reiterate that summary judgment is appropriate 

“when an examination of all relevant materials filed in the action reveals that ‘there 

is no genuine issue as to any material fact and that the moving party is entitled to 

judgment as a matter of law.’ ” Smith v. McBride, 2011-Ohio-4674, ¶ 12, quoting 

Civ.R. 56(C).

{¶ 20} Contrary to Berkheimer’s assertion, the Twelfth District properly 

conducted its review of the trial court’s summary-judgment decision, using the 

blended analysis that this court described in Allen, 170 Ohio St. at 258-259. The 
January Term, 2024

9

court of appeals considered whether the bone that was in the “boneless wing” was 

foreign to or natural to the food: “[B]ecause the chicken bone at issue here was 

natural to the chicken meat used to produce the boneless wings, we conclude it 

cannot legitimately be considered an unnatural or ‘foreign substance.’ ” 2023-

Ohio-116 at ¶ 26 (12th Dist.). Berkheimer does not challenge this conclusion. 

Instead, he takes issue with the court of appeals’ conclusion as to whether he could 

have “reasonably expected” a bone to be in the boneless wing.

{¶ 21} In considering whether Berkheimer could have reasonably expected 

the bone to be in the boneless wing, the court of appeals took into account that the 

boneless wings were prepared by cutting a chicken breast into one-inch pieces that 

were then fried. Id. at ¶ 27. The court noted that the chicken had not been “ground 

or further manipulated prior to serving.” Id. In this way, the boneless wings were

analogous to a fish fillet—and “‘everyone . . . knows that tiny bones may remain in 

even the best fillets of fish,’ ” Mathews v. Maysville Seafoods, Inc., 76 Ohio App.3d 

624, 627 (12th Dist. 1991) (holding as a matter of law that a consumer should 

reasonably expect the presence of a fish bone in a fish fillet), quoting Yong Cha 

Hong v. Marriott Corp., 656 F.Supp. 445, 449 (D.Md. 1987).

{¶ 22} The court of appeals also considered the size of the bone swallowed 

by Berkheimer, which it noted was approximately 13/8 inches long: “Such a bone 

is rather large given the description of the boneless wing’s size in the record, as 

well as Berkheimer’s decision to cut the wing into three bite sized pieces.” 2023-

Ohio-116 at ¶ 29. Like the oyster shell at issue in Allen, 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. And 

that is precisely what the court of appeals concluded: “[A] reasonable person could 

have anticipated and guarded against a similarly large-sized bone concealed in a 

bite size piece of chicken.” 2023-Ohio-116 at ¶ 29.
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{¶ 23} Berkheimer protests that the court of appeals did not give due 

consideration to the fact that the food item was advertised as a “boneless wing” and 

that there was no warning given that a bone might be in the boneless wing. 

Regarding the latter argument, a supplier of food is not its insurer. And regarding 

the food item’s being called a “boneless wing,” it is common sense that that label 

was merely a description of the cooking style. A diner reading “boneless wings” 

on a menu would no more believe that the restaurant was warranting the absence of 

bones in the items than believe that the items were made from chicken wings, just 

as a person eating “chicken fingers” would know that he had not been served 

fingers. The food item’s label on the menu described a cooking style; it was not a 

guarantee.

{¶ 24} The dissent wonders what would happen in cases involving food that 

was advertised as lactose-free or gluten-free. Obviously, such cases are not before 

us. But unlike the presence of the bone in this case, the presence of lactose or gluten 

in a food that was advertised as lactose-free or gluten-free is not something a 

consumer would customarily expect and be able to guard against.

{¶ 25} The Twelfth District properly considered whether Berkheimer could 

have reasonably expected a bone to be in the boneless wing and thus could have 

guarded against it. And its consideration was appropriately informed by the fact 

that a bone is natural to a piece of a chicken breast. When determining whether 

summary judgment is appropriate, a court considers whether “reasonable minds 

[could] come to but one conclusion and that conclusion is adverse to the party 

against whom the motion for summary judgment [was] made, that party being 

entitled to have the evidence or stipulation construed most strongly in the party’s 

favor.” Civ.R. 56(C). Here, reasonable minds could come to but one conclusion—

that REKM, GFS, and Wayne Farms did not breach a duty of care.
January Term, 2024

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III. CONCLUSION

{¶ 26} Regarding negligence cases involving an injurious substance in 

food, we reaffirm that the correct analysis is the one we adopted in Allen. There is 

no breach of a duty when the consumer could have reasonably expected and 

guarded against the presence of the injurious substance in the food. And what the 

consumer could have reasonably expected is informed by the determination 

whether the injurious substance in the food is foreign to or natural to the food. 

Because the Twelfth District Court of Appeals properly applied this analysis, we 

affirm its judgment.

Judgment affirmed.

_________________

DONNELLY, J., joined by STEWART and BRUNNER, JJ., dissenting.

{¶ 27} The result in this case is another nail in the coffin of the American 

jury system. 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.

{¶ 28} Despite my vehement disagreement with the majority on the merits 

of this case, I have no problem with the law that the majority opinion posits. The 

majority opinion states:

To determine whether a supplier of food breached its duty of care 

by failing to eliminate an injurious substance from the food, we look 

to whether the presence of the substance was something that the 

consumer could have reasonably expected and thus could have 
SUPREME COURT OF OHIO

12

guarded against. And whether the substance was foreign to or 

natural to the food is relevant to determining what the consumer 

could have reasonably expected.

Majority opinion, ¶ 18.

{¶ 29} This statement of law is the essence of Allen v. Grafton, 170 Ohio 

St. 249, 258 (1960), which embraced the “reasonable-expectation” test and which 

we should reaffirm. In Allen, a restaurant patron suffered injuries after swallowing 

a piece of an oyster shell that was in a serving of fried oysters. Id. at 249-250. After 

discussing the two predominant tests for determining whether a food provider 

breached a duty of care, this court determined that the “‘better test of what is legally 

defective appears to be what consumers customarily expect and guard against,’ ”

id. at 258, quoting Dickerson, Products Liability and the Food Consumer, § 4.2 and 

4.3, at 185 (1951), which is the reasonable-expectation test, and concluded that it 

was unnecessary to determine whether the shell was foreign to or natural to the 

food, id. at 258-259. This court considered—and specifically declined to adopt—

the “foreign-natural” test. Id. Among the reasons that the foreign-natural test has 

been criticized is that “it assumes that all substances which are natural to the food 

in one stage or another of preparation are, in fact, anticipated by the average 

consumer in the final product served.” Betehia v. Cape Cod Corp., 10 Wis.2d 323, 

328 (1960). That concern is relevant here because three different defendants have 

been accused of negligence—the entity that raised and sold the chicken to the 

wholesaler, the wholesaler, and the restaurant that prepared and served the boneless 

wings.

{¶ 30} This case is incredibly straightforward. The issue is whether 

Berkheimer, who swallowed a bone while eating a boneless chicken wing, should 

be able to present to a jury his negligence claim against those who supplied or who 

prepared and served the wing or whether a judge may decide, as a matter of law, 
January Term, 2024

13

that Berkheimer cannot under any circumstances establish the defendants’ 

negligence. The answer to that question should also be straightforward: a jury is 

allowed to hear the case. See Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 

343 (1979) (Rehnquist, J., dissenting) (“The founders of our Nation considered the 

right of trial by jury in civil cases an important bulwark against tyranny and 

corruption, a safeguard too precious to be left to the whim of the sovereign, or, it 

might be added, to that of the judiciary . . . .”).

{¶ 31} The virtues of the jury system are often glowingly extolled, even by 

this court. Article I, Section 5 of the Ohio Constitution states that “[t]he right of 

trial by jury shall be inviolate.” This court has stated that “[t]he right of trial by 

jury should be as inviolate in the working of our courts as it is in the wording of 

our Constitutions.” Gibbs v. Girard, 88 Ohio St. 34, 47 (1913). And the United 

States Supreme Court has stated that “[m]aintenance of the jury as a fact-finding 

body is of such importance and occupies so firm a place in our history and 

jurisprudence that any seeming curtailment of the right to a jury trial should be 

scrutinized with the utmost care.” Dimick v. Schiedt, 293 U.S. 474, 486 (1935). 

Alas, a majority of this court has decided this case on the facts, circumventing the 

right to trial by jury in a way that ignores an “important bulwark against tyranny 

and corruption,” Shore at 343 (Rehnquist, J., dissenting), and instead leaving those 

decisions to the whim of the judiciary. See 4 Blackstone, Commentaries on the 

Laws of England, 342-344 (1769) (the right to trial by jury must be protected “not 

only from all open attacks, . . . but also from all secret machinations, which may 

sap and undermine it”).

{¶ 32} In my view, the majority opinion makes a factual determination to 

ensure that a jury does not have a chance to apply something the majority opinion 

lacks— common sense—stating that “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,” majority opinion at 
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14

¶ 22. Instead of relying on the collective wisdom of the jurors, the majority affirms 

the trial court’s grant of summary judgment to the defendants, determining that 

there is no way that any of them could have been negligent in this case.

{¶ 33} We review decisions granting summary judgment de novo, Caldwell 

v. Whirlpool Corp., 2024-Ohio-1625, ¶ 12, and we affirm such judgments only 

when “reasonable minds c[ould] come to but one conclusion and that conclusion is 

adverse to the party against whom the motion for summary judgment [was] made, 

that party being entitled to have the evidence or stipulation construed most strongly 

in the party’s favor,” Civ.R. 56(C). The majority concludes that there is no way 

that the defendant company that processed the chicken breasts and sold them in 

boxes marked “boneless” could have been negligent. The majority also concludes 

that there is no way that the food wholesaler that repackaged and sold the chicken 

in boxes marked “boneless” could have been negligent. Finally, the majority 

concludes that there is no way that the restaurant that prepared and served the 

chicken based on a menu labeling the chicken “boneless” could have been 

negligent. Did the majority construe the evidence most strongly in favor of 

Berkheimer? If it did, then I suggest that the majority suffers from a serious, 

perhaps disingenuous, lack of perspective in opining that there is only one 

conclusion that can be reached, even as it confronts this dissent, which obviously 

reaches a different conclusion.

{¶ 34} The majority opinion quotes with approval the Twelfth District 

Court of Appeals’ decision, noting that the bone that Berkheimer swallowed 

“‘would have encompassed nearly the entire third bite of the boneless wing.’” 

Majority opinion at ¶ 10, quoting 2023-Ohio-116, ¶ 29 (12th Dist.). If that 

conclusion is true, it should be determined by an appropriate finder of fact—such 

as a jury—which appellate courts are not. Chicken bones can be very delicate, even 

those that are 13/

8 inches long—the size of the bone that harmed Berkheimer, as 

noted by the court of appeals. See 2023-Ohio-116 at ¶ 29. That is about the size of 
January Term, 2024

15

many needles, which are famously good at hiding. Imagine how well a slender 

chicken bone can remain hidden in something that is not easily picked apart, 

especially when the person that might encounter the bone does not expect it to be 

there. But according to the majority opinion, there is no way that any of the 

defendants could have been negligent. Instead, it concludes that Berkheimer alone 

bore the burden and expense of finding the bone in the boneless wing. I am not 

convinced, based on the record before us, that the defendants were negligent, but I 

am not so confident in their policies and practices as to declare that reasonable 

minds could come only to the conclusion that they were not negligent.

{¶ 35} Instead of making their own factual determinations, the majority and 

the court of appeals should have allowed a jury to apply the reasonable-expectation 

test, which asks what a consumer like Berkheimer could have “reasonably 

anticipate[d] and guard[ed] against,” Allen, 170 Ohio St. at 259, to the facts of this 

case. Even though the Allen court stated that the naturalness or foreignness of a 

substance in food might be an important factor in determining whether a consumer

should have reasonably anticipated and guarded against the substance, id. at 258-

259, this court today implicitly adopts the foreign-natural test as the factor rather 

than a factor in determining what amounts to a reasonable expectation. The 

majority’s decision ossifies one factor as the rule and declares that if a substance is 

“natural” to a food product, a consumer who is injured while eating the product has 

no recourse regardless of how negligent the supplier or provider of the product 

might have been.

{¶ 36} The absurdity of this result is accentuated by some of the majority’s 

explanation for it, which reads like a Lewis Carroll piece of fiction. The majority 

opinion states that “it is common sense that [the label ‘boneless wing’] was merely 

a description of the cooking style.” Majority opinion at ¶ 23. Jabberwocky. There 

is, of course, no authority for this assertion, because no sensible person has ever 

written such a thing. The majority opinion also states that “[a] diner reading 
SUPREME COURT OF OHIO

16

‘boneless wings’ on a menu would no more believe that the restaurant was 

warranting the absence of bones in the items than believe that the items were made 

from chicken wings, just as a person eating ‘chicken fingers’ would know that he 

had not been served fingers.” Id. at ¶ 23. More utter jabberwocky. Still, you have 

to give the majority its due; it realizes that boneless wings are not actually wings 

and that chicken fingers are not actually fingers.

{¶ 37} The majority’s burst of common sense was short-lived, however, 

because its opinion also says that no person would conclude that a restaurant’s use 

of the word “boneless” on a menu was the equivalent of the restaurant’s “warranting 

the absence of bones.” Id. Actually, that is exactly what people think. It is, not 

surprisingly, also what dictionaries say. “Boneless” means “without a bone.” 

Cambridge English Dictionary, https://dictionary.cambridge.org/us/dictionary

/english/boneless#google_vignette (accessed June 6, 2024) 

[https://perma.cc/9C89-EXWC]. It means “without bones.” Collins Dictionary, 

https://www.collinsdictionary.com/us/dictionary/english/boneless (accessed June 

6, 2024) [https://perma.cc/VFT8-RMEY]; YourDictionary, 

https://www.yourdictionary.com/boneless (accessed June 6, 2024) 

[https://perma.cc/5PTY-9K2G]. And it means “(of meat or fish) without any 

bones.” Oxford Learner’s Dictionaries, 

https://www.oxfordlearnersdictionaries.com/us/definition/english/boneless 

(accessed June 6, 2024) [https://perma.cc/5JD8-KTDZ].

{¶ 38} The question must be asked: Does anyone really believe that the 

parents in this country who feed their young children boneless wings or chicken 

tenders or chicken nuggets or chicken fingers expect bones to be in the chicken? 

Of course they don’t. When they read the word “boneless,” they think that it means 

“without bones,” as do all sensible people. That is among the reasons why they 

feed such items to young children. The reasonable expectation that a person has 

when someone sells or serves him or her boneless chicken wings is that the chicken 
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does not have bones in it. See O’Dell v. DeJean’s Packing Co., Inc., 585 P.2d 399, 

402 (Okla.App. July 18, 1978) (“If one purchases a whole fish to bake surely he or 

she could ‘reasonably expect’ to find bones in it. However, if one purchases fish 

patties or fish sticks, it seems unrealistic to say he would ‘reasonably expect’ to 

find bones in the processed items.”). Instead of applying the reasonableexpectation test to a simple word—“boneless”—that needs no explanation, the 

majority has chosen to squint at that word until the majority’s “sense of the 

colloquial use of language is sufficiently dulled,” In re Ohio Edison Co., 2019-

Ohio-2401, ¶ 67 (DeWine, J., concurring), concluding instead that “boneless” 

means “you should expect bones.”

{¶ 39} As noted above, I certainly am not convinced at this stage of the 

proceedings that the processor, the wholesaler, or the server of the chicken was 

careless (or negligent). But I am convinced that Berkheimer should be able to 

present evidence of their negligence to a jury. Jurors likely have eaten boneless 

wings, some will have fed boneless wings to their children, and jurors have 

common sense. They will be able to determine, better than any court, what a 

consumer reasonably expects when ordering boneless wings. See Parklane Hosiery 

Co., 439 U.S. at 343-344 (Rehnquist, J., dissenting) (“Trial by a jury of laymen 

rather than by the sovereign’s judges was important to the founders because juries 

represent the layman’s common sense . . . and thus keep the administration of law 

in accord with the wishes and feelings of the community.”).

{¶ 40} The majority may be concerned about the dreaded “slippery slope”: 

What if everyone who chokes on a bone can sue the restaurant that served them the 

food containing the bone? The answer is simple: they won’t, because not everyone 

who ingests a bone requires surgery; not everyone who ingests a bone does so after 

ordering food from a menu declaring the food to be boneless; and a warning 

consistent with the majority’s view in this case could be added to menus—

something like: “Dear customer, please be advised that our boneless wings may 
SUPREME COURT OF OHIO

18

include bones”—which would obviously affect the consumer’s reasonable 

expectations. Moreover, the slippery-slope argument undeniably works the other 

way. Given the majority opinion here, it is not a stretch to believe that this court 

would consider a person who was served lactose after they ordered a food labeled 

“lactose free,” or a person who was served gluten after they ordered a food labeled 

“gluten free,” or a person who was served nuts after they ordered a food labeled 

“nut free,” to be without a remedy. People can die under some of those 

circumstances, and this court would point to the decision in this case and say that 

lactose and gluten and nuts are natural to foods, so there is no possible way that a 

defendant who processed or wholesaled or served them could have been negligent. 

“Naturalness” has swallowed the reasonable-expectation test.

{¶ 41} We should reaffirm Allen, 170 Ohio St. 249, which adopted the 

reasonable-expectation test and not the foreign-natural test. We should reverse the 

Twelfth District’s judgment and remand the matter to the trial court with 

instructions for it to allow Berkheimer to present his case to a jury of his peers, 

which could appropriately determine what an Ohioan should reasonably expect 

when ordering boneless chicken wings. Because the majority does otherwise, I 

dissent.

_________________

Robinson Law Firm, L.L.C., and Emmett E. Robinson; Stokar Law, L.L.C.,

and Robb S. Stokar; and Minnillo Law Group Co., L.P.A., and Paul J. Minnillo, for 

appellant.

Markesbery & Richardson Co., L.P.A., and Samuel A. Gradwohl, for 

appellee REKM, L.L.C., d.b.a. Wings on Brookwood.

Locke Lord, L.L.P., T. Patrick Byrnes, and Hugh S. Balsam, for appellees 

Wayne Farms, L.L.C., and Gordon Food Service, Inc.

Green & Green and Jared A. Wagner, for appellee Gordon Food Service, 

Inc.
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19

Murray & Murray Co., L.P.A., and Margaret M. Murray, urging reversal 

for amicus curiae, Ohio Association for Justice.

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