Abstract
This article examines defective food laws after the Ohio Supreme Court held that “boneless” in boneless chicken wings does not mean “without bones.” The result in this case is a man with permanent injuries was precluded from recovering damages after eating a menu item described as “boneless.”
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 13th century unwholesome food statutes. This section demonstrates that the law for unwholesome food, until the 20th century, was based on absolute liability. The post-industrial revolution era food laws shifted to two tests: the foreign/natural test and the reasonable expectation test—these tests are studied in detail.
There is then a discussion of the various causes of action, 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 injurious food 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, then provides a rationale as to why some judges might disagree based on the legal mindset. The article concludes by recommending a move back to absolute liability for several reasons, including the availability of insurance and improved food processing technology.
Recommended Citation
Baez, H. Beau
(2026)
"Unfit for Human Consumption: A Bone to Pick with Boneless Wings,"
Akron Law Review: Vol. 59:
Iss.
1, Article 3.
Available at:
https://ideaexchange.uakron.edu/akronlawreview/vol59/iss1/3