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After boneless wings case, Ohio lawmaker drafts bill on “common sense” standards for court cases

By: Jo Ingles | Statehouse News Bureau
Posted on: Friday, August 2, 2024

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COLUMBUS, Ohio (Statehouse News Bureau) — After a ruling that chicken wings advertised as “boneless” can contain bones, an Ohio state senator plans to introduce a bill to mandate a “common sense” standard be applied when determining whether a jury can hear a case.

Sen. Bill DeMora (D-Columbus) has a bone to pick with that Ohio Supreme Court ruling that said a customer who was injured after eating boneless chicken wings at a Cincinnati area restaurant could have reasonably expected to find a piece of bone anyway.

DeMora said that ruling doesn’t pass the “common sense” test because most people would expect a boneless wing to be free of bones. DeMora is drawing up a bill that would mandate Ohio courts use common sense as a standard for whether a legal case can proceed.

“The common sense test would be that if common sense dictated something, then that person would get their day in court and let a jury decide if someone was negligent or not,” DeMora said.

Why DeMora says he is proposing this bill

Last week, the four Republican members of the Ohio Supreme Court ruled boneless wings could have bones in them. Some Democrats are calling that ruling foul.

“I don’t know how any person with common sense or common knowledge or any kind of logic can determine something that says ‘boneless’ can have a bone in it,” DeMora said.

Because of the high court’s ruling, a Butler County man who said he was seriously and permanently injured by a bone in a chicken wing served by a local restaurant will not be able to take his case in front of a jury of his peers. Michael Berkheimer had sued the restaurant “Wings on Brookwood” after swallowing a chicken bone in a boneless wing. Berkheimer told the court he suffered serious health consequences when the bone tore his esophagus, leading to injuries he said are permanent.

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 upheld that decision. The Ohio Supreme Court agreed.

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

DeMora wrote in a statement after that decision that it was “one of the most obvious cases of legislating from the bench possible; common sense and logic must not matter to the Republican Supreme Court majority. All that seems to matter to them is shielding billion-dollar corporations from lawsuits when their negligence hurts people.”