Eight years ago, a customer ordered “boneless wings” at a restaurant. He experienced discomfort and later developed a bacterial infection in his thoracic cavity, leading to serious and ongoing medical issues. Doctors discovered a tear in his esophagus caused by a 5 cm-long chicken bone lodged there, likely from one of the “boneless” wings. Claiming that the “boneless” wings were not supposed to have bones, he sued for negligence.
After extensive litigation, the Ohio Supreme Court just ruled that, regardless of a seller’s description, consumers must still guard against substances in food that they might reasonably expect to be present. Many believed that since the wings were marketed as “boneless,” it would be unreasonable for a consumer to expect a bone. However, the state’s highest court held (along party lines) that if a substance is natural to the food purchased, a consumer must still be cautious.
The Court further explained that how a seller markets food is not dispositive because a literal interpretation of marketing can sometimes defy common sense. For example, no one believes that “chicken fingers” are actual fingers of a chicken. The Court noted that it would be unreasonable for lactose to be in a product marketed as “lactose-free.” Given the paradoxical nature of this logic, various news and sports websites have panned the decision.
What Does This Mean?
For our readers in the hospitality industry, the takeaway is that things that would naturally be in a food, but should have been removed, might not create liability.
For all of our readers, the takeaways are:
- Even if a seller disclaims something, consumers still need to guard against it since Ohio courts are unlikely to protect consumers against their own carelessness.
- Ensure that you have good insurance coverage because even a small thing could lead to serious injuries and even if you win, will at least result in years of litigation costs.
If you have questions regarding litigation exposure, please reach out to KJK’s Co-chair of Litigation, Samir Dahman (sbd@KJK.com; 614.427.5750).