by Richard W. Millar, Jr.

When I was a very young lad, we had a chicken coop at our house. It was, I am sure, my mother’s doing, as I cannot imagine my father would have come up with the idea on his own and suspect he had to be firmly lobbied before he acquiesced. We had a number of hens and one rooster and regularly ate their eggs. We did not live on a farm or even a rural area. We lived in Pasadena where chicken coops were unusual. And, perhaps, not fully appreciated, at least as far as roosters were concerned.

I have no idea what the local ordinances were in those days, if indeed there were any, but the neighbors preferred alarm clocks to roosters and one day my mother announced that, due to the neighbors, the chickens would be no more.

As a result, the otherwise empty chicken coop became my clubhouse which, and I am really stretching my memory here, I called the “Tiger Club.” I have no idea where that name came from, but it certainly had a stronger ring than the “Chicken Club.”

In any event, I have not given a lot of thought to chickens over the years, either as pets, egg producers or food, until I ran across a recent case from Ohio.

A fellow named Michael Berheimer went to a restaurant called “Wings on Brookwood” and ordered his “usual” which was “boneless wings with parmesan.”

It turned out that a “boneless wing” was not boneless and he suffered serious injuries from ingesting a chicken bone.

He sued. And lost. By summary judgment.

His argument on appeal was that the restaurant menu did not have any warning that there may be bones in what it touted as “boneless wings” and therefore it was a jury question as to whether the restaurant was negligent.

He not only lost in the trial court, he also lost in the court of appeals and the Ohio Supreme Court.

The trial court determined that bones or bone fragments in meat dishes, including those advertised as “boneless,” were a common occurrence and a customer should have been on guard against it.

It probably didn’t help that chicken wings do not come from a chicken’s wing, but are chunks of chicken breasts. This, to me, is a little different than the fact that “chicken fingers” do not come from a chicken’s non-existing fingers as “boneless chicken fingers” seems self-contradicting.

Be that as it may, the court of appeal (with approval from the Supreme Court) found that “regarding the food item’s being call a ‘boneless wing,’ it is common sense that the label was merely a description of the cooking style.” To paraphrase an old saying, “I am not sure I can get there from here.”

The Ohio Supreme Court’s decision was 4-3. The dissent ironically noted:

Today, the majority declares as a matter of law that no reasonable person could consider the facts of this case and reach a conclusion contrary to the one it reaches. This is, of course, patently untrue given that I and two other justices of this court dissent from the majority’s judgment.

The dissent calls the majority’s statement that “boneless” was just a description of the cooking style “Jabberwocky,” and says that “[T]here is, of course, no authority for this assertion, because no sensible person has ever written such a thing.”

The dissent also takes the majority to task for saying “that no reasonable person would conclude that a restaurant’s use of the word ‘boneless’ on the menu was the equivalent . . . of warranting the absence of bones. Actually, that’s exactly what people think . . . and also what dictionaries say.”

The dissent further argues that the issue should go to a jury “which could appropriately determine what an Ohioan should reasonably expect when ordering boneless chicken wings.”

Far be it for me to know what a reasonable Ohioan would think, but it would be fair to say that I have a bone to pick with this decision.

Richard W. Millar, Jr. is tired and retired. He can be reached at dickmillar9@gmail.com.