An Ohio Democratic Senator recently introduced a bill in response to last summer’s Ohio Supreme Court ruling saying that a man who ordered boneless wings should have expected bones in them and denied him a jury trial after he sustained significant injuries.
State Sen. Bill DeMora, D-Columbus, was outraged by the Supreme Court ruling and introduced Senate Bill 38 last month which would look at how the state determines liability when someone is injured by “negligently prepared food from a restaurant or food supplier,” DeMora said last week in his sponsor testimony in front of the Senate Judiciary Committee.
In 2016, Michael Berkheimer ate boneless wings at a Southwest Ohio restaurant, but felt like he swallowed something wrong. He developed a fever later that night and ended up going to the hospital a couple days later with a 105-degree fever. The doctors discovered a nearly two inch chicken bone in his throat that ripped open the wall of his esophagus.
Berkheimer developed an infection, had to undergo several surgeries, was in two medically induced comas, and had a week-long stay in intensive care.
He sued the restaurants and their chicken suppliers in 2017, saying “negligence” led to his injuries. The Butler County Court of Common Pleas and the Twelfth District Court of Appeals sided against Berkheimer and didn’t let the case go to trial.
The case went to the Ohio Supreme Court where the majority ruled the lower courts made the right decision. The ruling was four Republicans to three Democrats.
The restaurant wasn’t liable “when the consumer could have reasonably expected and guarded against the presence of the injurious substance in the food,” Ohio Supreme Court Justice Joe Deters wrote in the majority opinion.
This story received national attention and even ended up being a bit on “The Late Show with Stephen Colbert.”
“What (Berkheimer) went through was horrific, timeconsuming, and costly,” DeMora said in his testimony.
But the bill doesn’t focus on Berkheimer’s injuries, but rather how judges were the ones who decided his case.
“That’s not just wrong,” DeMora said. “It’s a direct assault on the very foundation of our legal system.”
S.B. 38 is trying to change that.
“It will make sure that future cases like Mr. Berkheimer’s are heard by a jury – as our Constitution demands,” DeMora said. “It will also make sure that when determining liability, we use the reasonable expectations test used by most states.”
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