by JT DeGrinney, Associate Member, University of Cincinnati Law Review Vol. 93
I. Introduction
“Ohio is currently the only state in the union where ‘boneless’ doesn’t mean ‘without bones’ . . .”[1] These were among the less inflammatory of Senator William DeMora’s choice words for the Supreme Court of Ohio as he introduced and explained Senate Bill 38 (“SB 38”) to the Ohio Senate Judiciary Committee.[2] Indeed, in the polarizing case of Berkheimer v. REKM, L.L.C.,[3] the court held, as a matter of law, that a restaurant breaches no duty of care when it serves a customer “boneless wings” containing a bone.[4] SB 38 is designed to reverse that decision, which in DeMora’s view, makes Ohio “a laughingstock” to the rest of the nation.[5]
SB 38 clearly has good intentions. In an ode to common sense, it seeks to direct a misguided court towards an intuitive theory of liability and to protect the right to a jury trial in cases where “most people would naturally side with the little guy.”[6] However, SB 38’s sponsors should be careful about how they cut Berkheimer down to size. Although the proposed bill text unambiguously protects the jury’s role in food-product tort cases, it leaves enough room for courts to interpret the substantive law in the same unsatisfying way that the Supreme Court of Ohio did in Berkheimer.
This article offers suggestions to add to SB 38, based on other courts’ treatment of the relevant standard, to help Ohio’s “boneless” doctrine get back to common legal sense. Accordingly, Section II discusses the “reasonable expectation” test underlying the bill’s non-jury related text, the competing doctrine that the Berkheimer dissent thought the majority adopted, and how courts have applied the two in Ohio and elsewhere. Section III suggests ways SB 38 could learn from the various “boneless” traditions. Finally, Section IV briefly concludes by noting how other courts have reached reasonable conclusions by putting negligence beyond the dichotomy discussed in Berkheimer.
II. Background
A. Senate Bill 38
SB 38 proposes that the Ohio legislature enact a new section of the Ohio Revised Code that would provide “a reasonable expectation test” for courts to use when determining “liability for injury caused by consumption of food containing a substance injurious to health.”[7] The bill divides the new code section into three parts: section 2307.56(A) defines relevant terms,[8] section 2307.56(B) imposes the “reasonable expectation” test,[9] and section 2307.56(C) requires that the “trier of fact” apply the reasonable expectation test to the facts of each case.[10]
In the part most relevant to this article, SB 38’s new section 2307.56(B) would enact the following language:
In a civil action for damages . . . the liability of the operator of the food service operation or the liability of the supplier is determined by whether the injured person, in consuming such food, had a reasonable expectation that the food did not contain a substance that is injurious to human health.[11]
Senator DeMora described section 2307.56(B)’s “reasonable expectation” test as “the reasonable expectations test used by most states.”[12] Senator DeMora also noted, in his testimony introducing the bill, that the Berkheimer majority itself characterized the “reasonable expectation” test as the “better” test for determining one’s liability for serving legally defective food.[13]
B. Ohio’s Tradition: Berkheimer and Allen
In Berkheimer, a wing aficionado ordered his usual boneless wings for dinner.[14] He received his order and began eating, cutting each wing into two or three smaller pieces to chew individually.[15] On the third piece of the second wing, he felt something go “down the wrong pipe.”[16] It turned out to be a one-and-three-eighths-inch bone that got stuck in his esophagus and caused significant medical issues.[17] After both the trial court and the court of appeals granted summary judgment in favor of the defendant, the wing aficionado appealed to the Supreme Court of Ohio.[18]
The court affirmed the appellate court’s decision, adopting a test it described as “blended” because it included aspects of two competing doctrines for determining liability arising out of a restaurant or food supplier’s breach of a duty of care to provide reasonably safe food.[19] First, the court laid out the traditional four elements underlying any negligence claim: duty, breach, cause, and harm.[20] The court noted that, in Ohio, food sellers generally owe a duty of care to provide food that is fit to eat.[21] Accordingly, the court found, under Ohio precedent, a breach of that duty—where a food seller provides food unfit to eat—occurs when a food seller provides food containing an injurious substance that a consumer could not have reasonably expected or guarded against.[22] The court also noted that a factor relevant to a consumer’s “reasonable expectation” is whether the substance is “foreign” to the food or naturally occurring within the food.[23] Since the bone that ended up in the wing aficionado’s throat was “natural” to the piece of chicken he ate, the court reasoned, analogizing to precedent, he likely could have reasonably expected the bone.[24] The court also reasoned that since he was cutting the wings into pieces that were small relative to the bone, the court reasoned, he probably could have guarded against it.[25]
To reach its decision in Berkheimer, the court relied upon and reasoned by analogy to one of its earlier cases, Allen v. Grafton.[26] In Allen, the court considered whether a customer served a plate of fried oysters containing a three-by-two-centimeter piece of oyster shell could state a negligence claim against the restaurant that served them.[27] The court held that the customer could not state a claim because, as a matter of law, “one who eats oysters can reasonably anticipate and guard against eating such a piece of shell, especially where it is as big a piece as the one described.”[28] In reaching its conclusion, the court discussed Mix v. Ingersoll Candy Co.,[29] which was then a leading case on the subject.[30] The court noted that Mix imposed a per se rule against a restaurant’s liability when a restaurant serves food containing an injurious substance “natural” to the food; under Mix, the Allen court noted, customers should always reasonably expect and guard against injurious naturally-occurring substances.[31]
Ultimately, however, the court preferred what it thought a more forgiving position.[32] Citing a treatise that criticized Mix’s rule, now called the “foreign-natural” rule,[33] the Allen court concluded that the better test was one that allowed liability at least sometimes for “natural” injurious substances—for those substances that the consumer would not “customarily expect and guard against.”[34] The court in Allen thus adopted the “reasonable expectation” test, while relying on the “foreign-natural” considerations from Mix as a factor to inform a consumer’s reasonable expectations.[35] Since a piece of oyster shell was “natural” to a fried oyster dish, and since the piece of oyster at issue was relatively large, the court concluded, “one who eats oysters can reasonably anticipate and guard against such a piece of shell.” [36] The restaurant was therefore not liable for serving a customer a plate of oysters containing “as big a piece” of shell.[37]
C. Alternatives: Betehia and Morrison’s Cafeteria
Read in context with Berkheimer and Allen, Senator DeMora’s sponsor testimony for SB 38 suggests more than merely that the “reasonable expectation” test is the majority rule in the food-negligence space.[38] Since Berkheimer affirms that Allen adopted a version of the “reasonable expectation” test,[39] Senator DeMora’s remarks imply that SB 38’s “reasonable expectation” test should differ from the one affirmed in Berkheimer. Accordingly, this Article next explores how courts elsewhere have applied the “reasonable expectation” test differently.
In Betehia v. Cape Cod Corp., a restaurant patron ate a chicken sandwich with a bone in it and was injured.[40] The patron sued the restaurant under implied warranty and negligence theories.[41] The court disposed of both theories following the same principles discussed in Allen and Berkheimer, as flowing from and in tension with Mix.[42] The court criticized Mix’s rule as “fallacious,” noting that while an object’s natural occurrence in a given food product might inform whether the average consumer expects or guards against that object, it does not necessarily determine whether they in fact expect or guard against it.[43] The court also recognized that unexpected natural objects are likely just as harmful as unexpected foreign ones.[44]
Accordingly, the Betehia court adopted the “reasonable expectation” test as outlined in the same source that the Allen court had cited only a few months earlier in Ohio.[45] The Betehia court, however, emphasized that, in the negligence context, the “reasonable expectation” test determines the defendant’s duty; that is, the defendant has a duty of ordinary care to remove objects that a consumer would not ordinarily anticipate and guard against, natural or not.[46] Therefore, the court reasoned, finding a bone in a chicken sandwich was like finding a bone in chicken soup or a shard of shell in oyster stew—though “natural,” bones and shell shards are not ordinarily expected to appear in the dishes as served, and consumers may not ordinarily expect or guard against them.[47] The fact that a consumer might be more likely to discover a bone in a sandwich, which requires chewing, than a soup, which often does not, did not matter to the Betehia court.[48] Rather, the court reasoned, that distinction, and the consumer’s actual conduct informed the issue of the plaintiff’s possible contributory negligence rather than the defendant’s duty.[49]
Similarly, in Ex parte Morrison’s Cafeteria of Montgomery, Inc., a mother and her young son ate at a cafeteria, where the young son choked on a fishbone in his fish fillet.[50] The mother had cut the fish into “very small pieces” for her son to eat.[51] No advertisement or cafeteria employee had represented to the mother that the fish was boneless.[52] The Alabama Supreme Court discussed the “foreign-natural” and “reasonable expectation” tests as it addressed the mother’s claims under implied warranty and Alabama products liability theories.[53]
The court rejected the “foreign-natural” test in favor of the “reasonable expectation” test.[54] According to the court, the ordinary consumer’s reasonable expectations, as informed by ordinary knowledge common to the community, guide the test.[55] Thus construing the test, the court still held, as a matter of law, that the one-centimeter bone on which the young son choked did not render his fish unreasonably dangerous.[56] The court reasoned through various factors to balance between honoring the ordinary consumer’s “rather high expectations” and protecting food sellers from becoming “insurers” of their many products.[57] Looking to “common knowledge that fish have many bones,” government regulations permitting bones in fish fillets, and the commercial impracticality of removing all bones from the dish as served, the court found that an ordinary consumer would reasonably have expected the bone.[58] Notably, in affirming the lower court, the court pointed out that a representation that the dish was boneless might have substantially affected the analysis.[59]
III. Discussion
SB 38’s proponents should improve its language if they intend to impose a test that would reach different results than the one in Berkheimer. If Senate Bill 38 were to pass, Ohio courts would have to interpret its language in cases similar to Berkheimer and all other sorts of food-tort cases. Courts would likely look to the bill’s proponents’ comments surrounding the bill’s path through the legislature as well as the Berkheimer discussion, which it was explicitly introduced to correct, to illuminate its text according to the legislature’s intent.[60] As SB 38 is currently written, and as relevant to this article, its principal function is to adopt the “reasonable expectation” test for determining a food supplier’s liability.[61] However, the Berkheimer court already adopted that test, in its own way, at least.[62] Accordingly, if SB 38 is intended to make a substantive difference, its proponents should consider the following suggestions.[63]
A. S.B. 38 Should Contemplate What an Ordinary Consumer Would Reasonably Anticipate
Betehia and Morrison’s Cafeteria both emphasize an essential aspect of the “reasonable expectation” test that the Berkheimer majority treated differently: the test considers the “reasonable expectations” that an ordinary consumer would bring to a given food article, based on their ordinary knowledge of that food article.[64] The Berkheimer court drew from Allen to cite the same source as Betehia and construct the “reasonable expectation” test the same way, noting, “[t]his court determined that if a reasonable consumer would expect to encounter and thus would guard against the injurious substance.”[65] Yet, the court ultimately concluded, “[A] reasonable person could have anticipated and guarded against a similarly large-sized bone concealed in a bite-size piece of chicken.”[66]
The Betehia court’s discussion of the “reasonable expectation” test in the negligence context illuminates the meaningful difference between “would” anticipate and “could” anticipate. As the Betehia court noted, what an ordinary consumer would reasonably expect informs what types of harm a food supplier should reasonably foresee befalling their customers; if consumers ordinarily anticipate finding bones in their chicken sandwiches, food suppliers owe no duty to remove them.[67] Asking whether a given customer could have anticipated or guarded against such a bone is a different question. As the Betehia court noted, that question informs the contributory—or, in Ohio, the comparative[68]—negligence question, rather than the “duty” question keyed to the defendant food supplier.[69]
SB 38 should thus emphasize that the “reasonable expectations” of its “person who suffered injury . . . allegedly caused by . . . consumption of food” are informed by what the ordinary consumer would customarily anticipate or guard against when eating the food that injured them. Moreover, SB 38 should direct the inquiry, if any, into what that person “could have” anticipated or guarded against towards the question of that person’s “contributory fault” under Ohio’s comparative negligence statute. The balance between expressly recognizing both the ordinary consumer’s “reasonable expectation” and the actual customer’s potential lack of due care should alleviate some of the issues associated with Berkheimer. To illustrate: Berkheimer held that a restaurant owes no duty to remove a relatively large bone from the wing of an extra-careful customer who chops up his wings before eating them—because he could have, but did not, find the bone.[70] Yet, the Berkheimer court might treat a ravenous, less careful customer differently when they hurt themself biting into a wing without thinking because the bone may not have been “so large relative to the size of the food item he was eating that . . . [they] reasonably could have guarded against it.”[71]
Under Betehia’s approach, which SB 38 should emulate, the answer should at least ensure greater clarity and consistency. The static concept of an “ordinary” consumer’s “reasonable expectation” concerning a given food item does not change from case to case, so neither would a food supplier defendant’s duty of care. Only plaintiffs’ ultimate recoveries would depend on individual plaintiffs’ idiosyncrasies.
B. S.B. 38 Should Incorporate Factors Flowing from Other “Reasonable Expectation” Cases
Emphasizing that the “reasonable expectation” test operates on what an ordinary consumer would “reasonably expect” should help SB 38 reach its goal, but the SB 38’s drafters should also consider adding other factors to its text that inform what exactly the ordinary consumer “reasonably expects.” Such a step would address one of Berkheimer’s other key problems: it lets the “foreign-natural” test from Mix swallow the “reasonable expectation” test, chicken bones and all.[72]
The Betehia and Morrison’s Cafeteria courts recognized that the “foreign-natural” test indeed operates usefully as a factor in the “reasonable expectation” analysis,[73] but both courts’ discussions suggest other factors that SB 38’s drafters should consider adopting alongside the “foreign-natural” test.[74] A key factor the bill should include that both Betehia and Morrison’s Cafeteria contemplate is the “type of dish or style of food served.”[75] The Berkheimer majority controversially noted that the restaurant’s description of the aficionado’s dish as “boneless wings” merely denoted a “cooking style” and did not guarantee the wings to be boneless.[76] The court was probably right to call the term “boneless wings” a “cooking style,”[77] but it should also have considered whether consumers would reasonably expect or guard against bones in dishes served that way.
Another factor the drafters should consider is whether any representation was made regarding the food.[78] Material representations regarding the food would likely influence whether the ordinary consumer would reasonably anticipate or guard against potential food-related dangers. Of course, the representation would be taken in the proper context, viewed under the totality of the circumstances;[79] a representation that wings are “boneless” under certain circumstances might change an ordinary consumer’s reasonable expectations more or less than would a representation that a fish fillet is “boneless” under others.
Finally,[80] SB 38’s drafters should consider commercial impracticality as a factor that informs an ordinary consumer’s “reasonable expectations.”[81] The ordinary consumer likely—if circumstantially—takes commercial practicality into account when considering what to reasonably expect. A mom and pop’s “boneless wing” might connote something different to the ordinary consumer than does Buffalo Wild Wings’ “boneless wing.” Courts might reasonably consider how consumers’ knowledge of what happens behind the scenes at different types of restaurants in preparing different types of dishes might inform the way consumers ordinarily approach their food in each instance.
IV. Conclusion
SB 38’s proponents are on the right track. Plenty of good reasons militate against the Berkheimer majority’s position;[82] however, to ensure future courts properly treat “boneless” as meaning whatever ordinary consumers think it means, SB 38 should guide its proposed “reasonable expectation” test according to other state courts’ shared wisdom. SB 38 should emphasize that an ordinary consumer’s “reasonable expectation” is that which they would ordinarily anticipate or guard against, not what they could have anticipated or guarded against. SB 38 should understand an ordinary consumer’s “reasonable expectation” as informed by several factors beyond merely whether something is “foreign” or “natural” to the food served.
Alternatively, as the number of factors to consider under the “reasonable expectation” test grows, SB 38’s drafters could choose to leave both “foreign-natural” and “reasonable expectation” behind in the negligence context. California adopted a basic negligence formula for food-negligence cases when it finally overruled Mix in Mexicali Rose v. Superior Court.[83] Rather than defining the defendant’s negligence duty circuitously by tying it to the ordinary consumer’s reasonable expectations, the Mexicali Rose court simply defined the duty as one of “due care in food preparation.”[84] California’s approach is at least worth considering because it would arguably avoid the hazy distinction in Berkheimer between what the customer in fact could have guarded against and what the ordinary consumer would customarily expect. The Ohio legislature has much to consider if it so chooses, but, for now, the question remains: who knows what’s boneless in Ohio?
[1] S.B. 38 Sponsor Testimony: 1st Hearing on S.B. 38 Before the S. Judiciary Comm., 136th Gen. Assemb. Ohio 2025 (statement of Sen. William P. Demora), available at: https://search-prod.lis.state.oh.us/api/v2/general_assembly_136/committees/cmte_s_judiciary_1/meetings/cmte_s_judiciary_1_2025-02-12-0945_100/testimony/924/uploaded-doc/ [hereinafter S.B. 38 Sponsor Testimony]; See also Senate Bill 38 Committee Activity, The Ohio Legis.: 136th Gen. Assemb. (Feb. 12, 2025), https://www.legislature.ohio.gov/legislation/136/sb38/committee.
[2] S.B. 38 Sponsor Testimony, supra note 1.
[3] See Howard Wilkinson, Analysis: Did Ohio Supreme Court choke with ‘boneless’ wing decision?, 91.7 WVXU News: NPR Network (Aug. 8, 2024, 3:22 AM EDT), https://www.wvxu.org/politics/2024-08-08/analysis-ohio-supreme-court-decision-boneless-chicken-wings.
[4] Berkheimer v. REKM, L.L.C., 253 N.E.3d 1, 7 (Ohio 2024).
[5] S.B. 38 Sponsor Testimony, supra note 1.
[6] Wilkinson, supra note 3; see also S.B. 38 Sponsor Testimony, supra note 1.
[7] S. 38, 136th Gen. Assemb. (Ohio 2025).
[8] Id.; Section 2307.56(A) would define “food” and “food service operation” by reference to section 3717.01 and “supplier” by reference to section 2307.71. Id.; The new section 2307.56(A) would also define “operator” as a “person, association, corporation, or governmental operation . . . responsible for conducting a food service operation.” Id.
[9] S. 38, 136th Gen. Assemb. (Ohio 2025).
[10] Id. Because this article seeks to critique Berkheimer and S.B. 38’s response with respect to the “reasonable expectation” language, the proposed section 2307.56(C) is largely beyond the scope of this article.
[11] Id.
[12] S.B. 38 Sponsor Testimony, supra note 1.
[13] Id.; In his remarks, Senator DeMora quoted language from the Berkheimer decision that was itself quoted from Allen v. Grafton, 164 N.E.2d 167 (Ohio 1960), an earlier case that the Berkheimer majority discussed and ultimately followed. See Id. (“[Senate Bill 38] will also make sure that . . . we use the reasonable expectations test . . . that was described in Justice Deters [sic] majority opinion as, and I quote, ‘The better test of what is legally defective appears to be what consumers customarily expect and guard against.’”).
[14] Berkheimer v. REKM, L.L.C., 253 N.E.3d 1, 3 (Ohio 2024).
[15] Id.
[16] Id.
[17] Id.
[18] See id. at 4.
[19] Id.
[20] Id.
[21] Id.
[22] Id. at 7.
[23] Id. at 5-6.
[24] Id. at 6-7.
[25] Id. at 7.
[26] See id. (“Like the oyster shell . . . in Allen, it is apparent that the bone ingested by Berkheimer was so large relative to the size of the food item he was eating that, as a matter of law, he reasonably could have guarded against it.”).
[27] Allen v. Grafton, 164 N.E.2d 167 (Ohio 1960).
[28] Id. at 174-75.
[29] Mix v. Ingersoll Candy Co., 59 P.2d 144 (Cal. 1936). Mix has since been overruled in California, a point notably absent from the Berkheimer court’s discussion. See Mexicali Rose v. Superior Court, 822 P.2d 1292 (Cal. 1992).
[30] See Allen, 164 N.E.2d at 170.
[31] Id. at 170-172.
[32] See id. at 174 (“We are inclined to agree with the statement in Dickerson, Products, Liability and the Food Consumer (1951), 185, Sections 4.2 and 4.3 . . . .”)
[33] Berkheimer v. REKM, L.L.C., 253 N.E.3d 1, 5 (Ohio 2024).
[34] Allen, 164 N.E.2d at 174.
[35] Id. at 174-175.
[36] Id.
[37] Id.
[38] S.B. 38 Sponsor Testimony, supra note 1.
[39] Berkheimer v. REKM, L.L.C., 253 N.E.3d 1, 6 (Ohio 2024).
[40] Betehia v. Cape Cod Corp., 103 N.W.2d 64, 65 (Wis. 1960).
[41] Id.
[42] See id. at 66-69; see also Allen, 164 N.E.2d at 170-175; see also Berkheimer, 253 N.E.3d 1 at 4-6.
[43] Betehia, 103 N.W.2d at 67.
[44] Id.
[45] Id.; see also Allen, 164 N.E.2d at 173 (citing F. Reed Dickerson, Products liability and the food consumer 187 (1951)).
[46] Betehia, 103 N.W.2d at 69.
[47] Id. at 67-68 (citing Wood v. Waldorf Sys., 83 A.2d 90 (R.I. 1951)); Bonenberger v. Pittsburgh Mercantile Co., 28 A.2d 913 (Pa. 1942)).
[48] Id. at 68.
[49] Id.
[50] Ex parte Morrison’s Cafeteria of Montgomery, Inc., 431 So. 2d 975, 976 (Ala. 1983). The young son survived and recovered after a hospital stay. Id.
[51] Id.
[52] Id.
[53] See id. at 977-78.
[54] Id. at 978.
[55] Id.
[56] Id. at 979.
[57] Id. (quoting Paul D. Rheingold, What are the Consumer’s “Reasonable Expectations”?, 22 Bus. Law. 589 (1967).) The court’s “insurers” comment derives from a common concern noted in Mix that perhaps drove the Allen and Berkheimer courts to apply the “reasonable expectation” test so strictly against consumers in those cases. See Berkheimer v. REKM, L.L.C., 253 N.E.3d 1, 7 (Ohio 2024). (“Regarding the latter argument [that the restaurant represented the wings as “boneless wing[s]”], a supplier of food is not its insurer.”); Cf. Berkheimer v. REKM, L.L.C., 253 N.E.3d at 11-12 (Donnelly, J., dissenting) (“The majority may be concerned about the dreaded ‘slippery slope’: What if everyone who chokes on a bone can sue the restaurant that served them the food containing the bone?”).
[58] See Morrison’s Cafeteria, 431 So. 2d at 979.
[59] Id. (quoting Morrison’s Cafeteria of Montgomery, Inc. v. Haddox, 431 So. 2d 969 (Ala. Civ. App. 1982)).
[60] Elec. Classroom of Tomorrow v. Ohio Dep’t of Educ., 118 N.E.3d 907, 909-910 (Ohio 2018) (“When considering the meaning of a statute, our “‘paramount concern is the legislative intent’ of its enactment””) (quoting State ex rel. Steffen v. Ct. of App. Dist., 934 N.E.2d 906 (Ohio 2010).
[61] S. 38, 136th Gen. Assemb. (Ohio 2025) (as introduced). As noted earlier, supra note 9, the proposed section 2307.56(C) regarding the trier of fact in food-tort cases is beyond the scope of this article: to suggest changes to section 2307.56(B).
[62] Berkheimer, 253 N.E.3d at 7.
[63] This article acknowledges that section 2307.56(C) would unambiguously change Berkheimer in its own right. Both Senator DeMora and the Berkheimer dissent expressed serious concern about the majority’s “as a matter of law” decision, which took what they thought a vigorously contested fact issue from the jury. See S.B. Sponsor Testimony, supra note 1 (“But in Mr. Berkheimer’s case, he was denied that right. Judges, not a jury, decided his case based on summary judgment.”); see also Berkheimer, 253 N.E.3d at 8 (Donnelly, J., dissenting) (“The result in this case is another nail in the coffin of the American jury system.”). However, this article instead targets Berkheimer’s substantive discussion and its treatment in Senate Bill 38 because it is possible that a jury could reach the same questionable result the Berkheimer majority reached if it had to apply the law as the Berkheimer court stated it.
[64] See, e.g., Betehia v. Cape Cod Corp., 103 N.W.2d 64, 69 (Wis. 1960) (“[The food supplier] is not an insurer but has the duty of ordinary care to eliminate or remove, in the preparation of the food he serves, such harmful bones as the consumer of the food, as served, would not ordinarily anticipate and guard against.”).
[65] Berkheimer, 253 N.E.3d at 5 (emphasis added).
[66] Id. at 7. (citing Berkheimer v. REKM, L.L.C., N.E.3d 90, 98 (Ohio Ct. of App. 12th Dist.)) (emphasis added).
[67] See Betehia, 103 N.W.2d at 69.
[68] See Ohio Rev. Code Ann. § 2315.33; see also Peterson v. Martyn, 2018-Ohio-2905, ¶ 37 (Ohio Ct. of App. 10th Dist.) (discussing section 2315.33 in terms of “comparative” negligence rather than “contributory” negligence).
[69] See Betehia, 103 N.W.2d at 68.
[70] Berkheimer, 253 N.E.3d at 7.
[71] Id.
[72] See id. at 10 (Donnelly, J., dissenting) ([T]his court today implicitly adopts the foreign-natural test as the factor rather than a factor in determining what amounts to a reasonable expectation.”) (emphases in original).
[73] See Betehia, 103 N.W.2d at 67 (“Categorizing a substance as foreign or natural may have some importance in determining the degree of negligence of the processor of food . . . .”); see also Ex parte Morrison’s Cafeteria of Mongtomery, Inc. v. Haddox, 431 So. 2d 975, 978 (Ala. 1983) (“Naturalness of the substance to any ingredients in the food served is important only in determining whether the consumer may reasonably expect to find such substance in the particular type of dish or style of food served.”).
[74] Given that future courts are likely to read the “foreign-natural” test into Senate Bill 38 as a factor of its test under Berkheimer if it remains silent on the issue, Senate Bill 38’s drafters should address the “foreign-natural” test explicitly. Moreover, since other courts have acknowledged the “foreign-natural” test’s usefulness as a factor in the “reasonable expectation” analysis, see supra note 73 and accompanying text, Senate Bill 38’s drafters should consider adopting it explicitly.
[75] Morrison’s Cafeteria, 431 So. 2d at 978. See also Betehia, 103 N.W.2d at 68.
[76] Berkheimer, Berkheimer, 253 N.E.3d AT 7. Cf. id. at 10 (Donnelly, J., dissenting) (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 lable ‘boneless wing’] was merely a description of the cooking style.””). Cf. S.B. 38 Sponsor Testimony, supra note 1 (“According to . . . the majority on the State Supreme Court, boneless means a cooking style, which to me and most thinking adults is utterly ridiculous!”).
[77] Berkheimer, 253 N.E.3d at 7. The semantic bickering is largely beside the point of this article when detached from the “reasonable expectation” analysis. But, for what it is worth, and because this article’s author enjoys a little semantic bickering from time to time, this article’s author humbly thinks Berkheimer got this part right. The author would submit that “boneless wing” in this context means a “style” of wing intentionally distinct from the other “traditional” style that always contains bones. Since, based on this author’s admittedly limited life experience, this author understands that “boneless wings” were invented to serve the same purpose as “classic” or “traditional” wings but without requiring the consumer to messily eat around the bones, “boneless wings” should be understood to contrast from their “bone-in” predecessors. Of course, construed broadly, “boneless” means wholly without bones, but it seems unlikely that that’s what most people actually mean when they talk about “boneless wings” in as opposed to “regular” or “traditional” wings, even though most “boneless wings” ultimately do turn out to be completely boneless.
[78] See Morrison’s Cafeteria, 431 So. 2d at 979 (“For instance, if there had been a representation that the fish was boneless . . . my conclusion might well be different.”).
[79] See Berkheimer, 253 N.E.3d at 7 (“‘[B]oneless wing’ . . . means a ‘style’ of wing . . . distinct from the other ‘traditional’ style that always contains bones.”).
[80] Although readers—and Senate Bill 38’s drafters—should note that Senate Bill 38’s drafters can and should treat the factors informing a consumer’s “reasonable expectations” as non-exhaustive; otherwise, they risk “ossif[ying] . . . factor[s]” into a rule that need not be unnecessarily harsh like Berkheimer’s. Berkheimer, 253 N.E.3d at 10 (Donnelly, J., dissenting).
[81] See Morrison’s Cafeteria, 431 So. 2d at 979 (“Finally, it was undisputed that, in light of the process used to mass produce fillets, it was commercially impractical to remove all bones.”).
[82] See e.g., Berkheimer, 253 N.E.3d at 8-10.
[83] Mexicali Rose v. Superior Ct., 822 P.2d 1292, 1303 (Cal. 1992).
[84] Id.
Cover Photo by Fernando Andrade on Unsplash.
