Beware of the bones in your boneless chicken wings. Wait, what?!?

Apropos of nothing employment-related, I read a recent Ohio Supreme Court decision that compels me to warn you before heading out to your favorite watering hole this weekend and ordering a plate of boneless wings.

Eat them at your own risk of swallowing a chicken bone.

According to the court, you should reasonably expect to find chicken bones in your plate of boneless wings.

But let’s start from the beginning.

One evening, a man had dinner with his wife and a small group of other people at a restaurant in Ohio known for its chicken wings. But this diner, while loyal, was not a traditionalist. According to the court, he placed his usual order—boneless wings with parmesan garlic sauce.

According to the man, the menu did not warn that boneless wings may contain bones. He testified that after he cut the second boneless wing into three pieces and was eating the third piece, “[i]t felt like something went down, a piece of meat went down the wrong pipe.”

In the following days, the man developed a fever, could not keep food down, and eventually visited the ER. The examining doctor discovered a thin 5-centimeter chicken bone, which had torn the man’s esophagus, causing a bacterial infection in his thoracic cavity and resulting in ongoing medical issues.

So, the man sued the restaurant, distributor, and supplier of the wings for negligence. And he lost.

To establish negligence, he had to show a duty owed to him, a breach of that duty, and a resulting injury. The plaintiff’s argument was that he ordered boneless wings, and no reasonable person should expect to be served wings with bones when they are advertised as “boneless.” Yet, he swallowed one anyway and got hurt.

But the court saw things a little differently.

It reasoned that food suppliers don’t breach any duty of care by failing to eliminate a natural “injurious substance” from the food that the consumer could have reasonably expected and thus could have guarded against. It’s like finding a bone in your salmon fillet. Except here, the court noted that the size of the bone the plaintiff swallowed was so large relative to the wing itself that he reasonably could have guarded against it.

According to the court, “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. The food item’s label on the menu described a cooking style; it was not a guarantee.”

But this was not a unanimous Ohio Supreme Court decision. And although you should probably stick with french fries for now to avoid them bones, you’ll get a laugh from this bit from the dissent:

The absurdity of this result is accentuated by some of the majority’s explanation for it, which reads like a Lewis Carroll piece of fiction. The majority opinion states that “it is common sense that [the label ‘boneless wing’] was merely a description of the cooking style.” Jabberwocky. There is, of course, no authority for this assertion, because no sensible person has ever written such a thing. The majority opinion also states that “[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.” More utter jabberwocky. Still, you have to give the majority its due; it realizes that boneless wings are not actually wings and that chicken fingers are not actually fingers.

Have a nice (and safe) weekend.