In response to a controversial Ohio Supreme Court ruling, State Senator Bill DeMora (D-Columbus) has introduced Senate Bill 38, which aims to put juries – as opposed to judges – in charge of determining liability when a consumer is injured by negligently prepared food. The bill stems from the Supreme Court’s ruling against Michael Berkheimer, who suffered life-threatening injuries after swallowing a large chicken bone in what was labeled as “boneless” wings at a Southwest Ohio restaurant.
The Berkheimer Case
In 2016, Michael Berkheimer experienced severe medical complications, including multiple surgeries, medically induced comas, and an extended hospital stay, after unknowingly ingesting a bone contained in his “boneless” wing. His lawsuit against the restaurant, its food supplier, and a chicken farm alleging negligence and breach of warranty was dismissed on summary judgment by the Butler County Court of Common Pleas, and Berkheimer was resultingly denied the opportunity to present his case to a jury. The Butler County Court’s decision was upheld by the Twelfth District Court of Appeals and, ultimately, the Ohio Supreme Court. The Supreme Court ruled 4-3 that summary judgment was proper, and the restaurant was not liable because Berkheimer could have reasonably expected and guarded against the presence of a bone in his “boneless” wings.
The Ohio Supreme Court based its ruling on the “foreign-natural” and “reasonable expectation” tests established in the 1960 case Allen v. Grafton. The Court’s majority concluded that, because a consumer could reasonably expect that a bone could be present in chicken because it was natural to the food and not foreign, the presence of a bone in Berkheimer’s meal did not constitute negligence, even if the wing was identified as “boneless.”
Senator DeMora’s Criticism Spawning SB 38
Senator DeMora strongly criticized the ruling, calling it “a direct assault on the foundation of our legal system.” He argues that cases like Berkheimer’s should be decided by a jury, not judges, in accordance with Ohio’s Constitution and seeks to guarantee that with the introduction of SB 38. The bill further seeks to ensure that Ohio follows the “reasonable expectations” test widely used in other states. Under this standard, liability is determined by whether a consumer could reasonably anticipate harmful material in their food and take precautions against it. All in all, with the introduction of SB 38, DeMora believes whether that standard was met should be heard by juries, not judges.
Industry Reactions and Implications
Some in the restaurant industry have expressed concerns about the implications of SB 38, arguing that the bill could lead to an increase in frivolous lawsuits and higher operational costs, unfairly burdening restaurants and food suppliers. Industry voices argue that a common-sense approach is needed, considering that the presence of bones in chicken is a natural occurrence, and consumers should therefore exercise caution.
Current Status and Future Prospects
SB 38 is currently in the Ohio Senate Judiciary committee, awaiting further hearings. Senator DeMora remains hopeful that the bill will advance, reinforcing consumer protections and ensuring that cases like Berkheimer’s are governed by the reasonable expectations test and receive a jury trial, as guaranteed by the Constitution.
