The Ohio Supreme Court ruled Thursday that a customer who ordered boneless chicken wings at a Cincinnati area restaurant could have reasonably expected to find a piece of bone anyway and guarded against swallowing it. Some Democrats are calling that ruling foul.
Sen. Bill DeMora (D-Columbus) said he has a bone to pick with the four Republican members of the Ohio Supreme Court, who ruled boneless wings could have bones in them.
"I don’t know how any person with commonsense or common knowledge or any kind of logic can determine something that says boneless can have a bone in it," DeMora said.
DeMora said the ruling prevents the injured party from having a jury trial. The Democratic lawmaker said if the court is redefining boneless wings, it signals potential problems for other issues Ohioans face.
“If they can say boneless wings can have bones in them, then what can they say about any other thing that matters to the citizens of Ohio?" DeMora said.
DeMora said he and other Democrats will be talking about this case because he thinks it will resonate with voters when they are considering who to elect to the bench.
Republican justices have a 4-3 majority on the Ohio Supreme Court and hope to increase their hold on the panel, with two seats occupied by Democrats in this fall’s ballot. The Democratic candidates for the state's highest court say they will fight to win all three races on the ballot.
There is one open seat on the Ohio Supreme Court; the seat currently occupied by Republican Justice Joe Deters. He was appointed earlier this year to fill the rest of Chief Justice Sharon Kennedy's term after she won the highest spot on the court last year.
Deters wants a full six-year term. So he is running to unseat Democratic Justice Melody Stewart. Judge Lisa Forbes, who sits on the 8th District Court of Appeals, is running for the seat Deters now holds.
Democratic Justice Michael Donnelly is up for re-election. He will face Republican Hamilton County Judge Megan Shanahan.
More on the court's ruling
In its conclusion, the majority Republican members of the court said, "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."
The court was considering an appeal of a decision by the Twelfth District Court of Appeals that had arrived at the same conclusion.
Michael Berkheimer had sued a Butler County restaurant, Wings on Brookwood, and its suppliers. He said 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 upheld that decision.
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.
But because of this ruling, Berkheimer won't get his day in front of a jury of his peers.
