ABSTRACT
This article examines defective food laws after a recent case where the Ohio Supreme Court held that ‘boneless’ chicken wings can contain bones. The result in that case is a man with permanent and significant injuries is precluded from recovering for his harm after eating a ‘boneless wing’ with a bone hidden inside.
The article begins by discussing the case, Berkheimer v REKM, and the rationale used by the court for allowing summary judgment against the plaintiff. Next, the article examines legal history, beginning with the first statutes in the 13th century regulating unwholesome food. This section demonstrates that the law for unwholesome food, until the 20th century, was based on absolute liability. These post-industrial laws revolve around two tests: the foreign/natural test and the reasonable expectation test, with the article delving into cases from around the country discussing both tests.
There is then a discussion of the various causes of action potentially available, which include strict liability, warranty, negligence, misrepresentation, and consumer protection statutes – all are discussed in the context of injurious food. The final section examines whether these cases should be decided by a judge or jury – the Berkheimer case was decided by judges, who determined no reasonable jury could find for the plaintiff. This section promotes the unremarkable proposition that juries should decide questions on reasonableness and then provides a rationale as to why some judges might disagree based on the legal mindset. The article concludes by recommending a move back absolute liability for several reasons, including the availability of insurance and improved food processing technology.
Baez, Beau, Unfit For Human Consumption: A Bone to Pick with Boneless Wings (August 19, 2025).
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