Diners who order boneless chicken wings can't expect them to really be boneless, court rules

Restaurant patrons who order chicken wings marketed as "boneless" can't expect them to actually be boneless, according to a Thursday ruling from the Ohio Supreme Court. 

The decision comes in the case of Michael Berkheimer, who in 2016 was eating his usual order — boneless wings with parmesan garlic sauce — at an Ohio restaurant called Wings on Brookwood when he felt like some meat went down the wrong pipe, according to legal documents.

Over the next few days, Berkheimer ran a fever and was unable to keep food down, prompting him to visit an emergency room, where a doctor found a 5-centimeter piece of chicken bone lodged in his esophagus. The bone led to a bacterial infection in his thoracic cavity and lingering medical problems, including difficulty breathing.

Berkheimer alleged the restaurant's menu had no warning to indicate that its boneless wings could actually contain bones, and he sued for negligence and breach of warranty, among other claims. 

But in Thursday's 4-3 ruling, the Ohio Supreme Court said "boneless" wings refers to a cooking style, and that Berkheimer should have been on guard against bones since it's common knowledge that chickens have bones. The high court sided with lower courts that had dismissed Berkheimer's suit.

"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," wrote Justice Joseph T. Deters for the majority.

He added, "The food item's label on the menu described a cooking style; it was not a guarantee."

The judges who dissented against the majority derided the reasoning as "utter jabberwocky," referring to Lewis Carroll's nonsensical poem, and said a jury should have decided the issue of whether the restaurant was negligent, rather than the court's justices.

"Jurors likely have eaten boneless wings, some will have fed boneless wings to their children, and jurors have common sense," Justice Michael P. Donnelly wrote in dissent. "They will be able to determine, better than any court, what a consumer reasonably expects when ordering boneless wings."

He added, "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 people read the word "boneless," he pointed out, they think it means the food doesn't have bones, "as do all sensible people," he wrote.

—With reporting by the Associated Press.