Boneless chicken wings can have bones: Ohio Supreme Court
July 26, 2024 12:18 AM Subscribe
The high court in the Buckeye State ruled 4-3 that bones are not a foreign substance and that the customer should have assumed a boneless chicken wing may still have bones.
Justice Joseph Deters:
Justice Joseph Deters:
"A diner reading 'boneless wings' on a menu would no more believe that the restaurant was warranting the absence of bones in the items than believe that the items were made from chicken wings, just as a person eating 'chicken fingers' would know that he had not been served fingers. The food item’s label on the menu described a cooking style; it was not a guarantee."Writing the dissent, Justice Michael Donnelly:
"The majority’s opinion... says that no person would conclude that a restaurant’s use of the word 'boneless' on a menu was the equivalent of the restaurant’s 'warranting the absence of bones.'"
"Actually, that is exactly what people think. It is, not surprisingly, also what dictionaries say. 'Boneless' means 'without a bone.'"
Chief Justice Sharon Kennedy as well as Justices Patrick Fischer and R. Patrick DeWine (yes, Governor DeWine's kid) joined in Justice Joseph Deters majority opinion. I assume they will not be celebrating their decision with an after-work party at the local Buffalo Wild Wings.
posted by Avelwood at 1:14 AM on July 26 [4 favorites]
posted by Avelwood at 1:14 AM on July 26 [4 favorites]
Republican judges abandoning common sense and twisting logic to let a corporation off the hook from having to pay for the harm it has done? What a surprise!
posted by pracowity at 1:39 AM on July 26 [44 favorites]
posted by pracowity at 1:39 AM on July 26 [44 favorites]
Makes for a funny headline but I think the key is whether the restaurant was guaranteeing (“warranting”) that the meat was completely boneless by putting “boneless chicken” on the menu, and whether a reasonable person would believe that’s what they were doing. Given the automated processes involved, I don’t think anyone could guarantee that with 100% certainty and I don’t think it’s reasonable for a diner to assume that.
posted by tubedogg at 1:56 AM on July 26 [9 favorites]
posted by tubedogg at 1:56 AM on July 26 [9 favorites]
Here's the actual ruling (PDF, wayback machine).
posted by Klipspringer at 2:07 AM on July 26 [3 favorites]
posted by Klipspringer at 2:07 AM on July 26 [3 favorites]
Apologies in advance for the twitter link but do not let the funny headline distract you (from the actual details)
posted by revmitcz at 2:15 AM on July 26 [12 favorites]
posted by revmitcz at 2:15 AM on July 26 [12 favorites]
I would in fact assume that chicken fingers would be pieces of chicken roughly in the shape of fingers (strips, not patties or nuggets), and equally I would assume that 'boneless' means, well, boneless.
That said, I don't think focusing on the restaurant is the right lens -- I note that the article says that the chicken farm and food supplier were also sued, and I think the food supplier is the right focus. I strongly doubt the restaurant was hand-preparing boneless wings themselves; it was probably a Sysco or other major-supplier joint, and pouring bags of frozen pre-prepped whatever into a fryer. Holding them responsible for what's in the wings is like me getting mad at my local convenience store because a bag of Skittles had a weird Skittle in it.
I'd be inclined, were I the restaurant, to join in the suit -- if my food supplier's boneless product is tearing people up with bones, that's really bad for me as a restaurant.
posted by Shepherd at 2:44 AM on July 26 [31 favorites]
That said, I don't think focusing on the restaurant is the right lens -- I note that the article says that the chicken farm and food supplier were also sued, and I think the food supplier is the right focus. I strongly doubt the restaurant was hand-preparing boneless wings themselves; it was probably a Sysco or other major-supplier joint, and pouring bags of frozen pre-prepped whatever into a fryer. Holding them responsible for what's in the wings is like me getting mad at my local convenience store because a bag of Skittles had a weird Skittle in it.
I'd be inclined, were I the restaurant, to join in the suit -- if my food supplier's boneless product is tearing people up with bones, that's really bad for me as a restaurant.
posted by Shepherd at 2:44 AM on July 26 [31 favorites]
Why would anybody order boneless chicken wings. It's preposterous. Just order nuggets... I may be a teeny weeny prejudiced coming from the city that invented chicken wings. I'll give you that. Pro tip...never order breaded wings or "large" wings. Stick with nice medium size. Oh and ask the cook to throw them on the grill (charcoal preferably) for a minute or two, after they have been sauced with a mixture of hot sauce and melted butter.
posted by Czjewel at 3:13 AM on July 26 [2 favorites]
posted by Czjewel at 3:13 AM on July 26 [2 favorites]
The Far Side
FELIX: What's the matter?posted by mikelieman at 3:25 AM on July 26 [6 favorites]
OSCAR: I'm choking on a bone.
FELIX: No, no, that's impossible.
OSCAR: What's impossible? Choking to death!
FELIX: No... it's boneless chicken.
OSCAR: No bones?
FELIX: No bones.
OSCAR: How did it walk?
I've always objected to the term "boneless wings" because they're not wings; I only like dark meat generally so when you label white meat "wings" I end up confused and unhappy. Call them something else!
posted by an octopus IRL at 3:38 AM on July 26 [4 favorites]
posted by an octopus IRL at 3:38 AM on July 26 [4 favorites]
> Here's the actual ruling
Sam Platt, a cook for Wings on Brookwood [...] explained that the boneless wings were made from pre-butterflied, boneless, skinless chicken breasts [...] When cutting a chicken breast into individual “wings,” he made roughly the same cuts every time, resulting in approximately 20 boneless, one-inch chunks. Platt estimated that he physically touched about 90 percent of the boneless wings before they were served to customers.
That does kinda seem like it's partially on the restaurant.
Medical records referred to the object as a “5cm-long chicken bone.”
Brother CHEW YOUR FOOD.
posted by lucidium at 3:38 AM on July 26 [14 favorites]
Sam Platt, a cook for Wings on Brookwood [...] explained that the boneless wings were made from pre-butterflied, boneless, skinless chicken breasts [...] When cutting a chicken breast into individual “wings,” he made roughly the same cuts every time, resulting in approximately 20 boneless, one-inch chunks. Platt estimated that he physically touched about 90 percent of the boneless wings before they were served to customers.
That does kinda seem like it's partially on the restaurant.
Medical records referred to the object as a “5cm-long chicken bone.”
Brother CHEW YOUR FOOD.
posted by lucidium at 3:38 AM on July 26 [14 favorites]
Call them something else!
"Boneless Wing" is just a bougie name for "Chicken Nugget"
posted by mrjohnmuller at 3:40 AM on July 26 [14 favorites]
"Boneless Wing" is just a bougie name for "Chicken Nugget"
posted by mrjohnmuller at 3:40 AM on July 26 [14 favorites]
> Republican judges abandoning common sense and twisting logic to let a corporation off the hook
administrator, pleasehope tag me: #USPolitics . #USPoultryTricks ?
posted by are-coral-made at 3:51 AM on July 26 [1 favorite]
administrator, please
posted by are-coral-made at 3:51 AM on July 26 [1 favorite]
This ruling would lend a new, expansive meaning to such phrases as "chinless wonder", "spineless lackey" and "shameless sellout", were it not complete bullshit.
posted by hat_eater at 3:54 AM on July 26 [2 favorites]
posted by hat_eater at 3:54 AM on July 26 [2 favorites]
I may be a teeny weeny prejudiced coming from the city that invented chicken wings.
This is rank human arrogance. The ancestors of chickens had wings long before human civilization.
posted by GenjiandProust at 4:04 AM on July 26 [13 favorites]
This is rank human arrogance. The ancestors of chickens had wings long before human civilization.
posted by GenjiandProust at 4:04 AM on July 26 [13 favorites]
The relevant part of revmitcz's link above, from the AP story:
...a restaurant patron who suffered serious medical complications from getting a bone stuck in his throat.
Michael Berkheimer was dining with his wife and friends at a wing joint in Hamilton, Ohio, and had ordered the usual — boneless wings with parmesan garlic sauce — when he felt a bite-size piece of meat go down the wrong way. Three days later, feverish and unable to keep food down, Berkeimer went to the emergency room, where a doctor discovered a long, thin bone that had torn his esophagus and caused an infection.
posted by mediareport at 4:24 AM on July 26 [1 favorite]
...a restaurant patron who suffered serious medical complications from getting a bone stuck in his throat.
Michael Berkheimer was dining with his wife and friends at a wing joint in Hamilton, Ohio, and had ordered the usual — boneless wings with parmesan garlic sauce — when he felt a bite-size piece of meat go down the wrong way. Three days later, feverish and unable to keep food down, Berkeimer went to the emergency room, where a doctor discovered a long, thin bone that had torn his esophagus and caused an infection.
posted by mediareport at 4:24 AM on July 26 [1 favorite]
(It was a 4-3 decision with the 3 Democrat members of the court in dissent from the Republican majority.)
posted by mediareport at 4:29 AM on July 26 [4 favorites]
posted by mediareport at 4:29 AM on July 26 [4 favorites]
That does kinda seem like it's partially on the restaurant.
That's my bad for assuming without doing the reading -- I rescind the point about this being more a supplier issue. Thanks for the correction.
posted by Shepherd at 4:30 AM on July 26 [3 favorites]
That's my bad for assuming without doing the reading -- I rescind the point about this being more a supplier issue. Thanks for the correction.
posted by Shepherd at 4:30 AM on July 26 [3 favorites]
There's a "how J.D. Vance likes his chicken wings" joke in here somewhere, but I'm too tired to put it together.
posted by JohnFromGR at 4:52 AM on July 26 [1 favorite]
posted by JohnFromGR at 4:52 AM on July 26 [1 favorite]
I gotta admit I was expecting this to be about one of those little flecks of bone where your tooth hits it and you're all EWWW NO but it's basically harmless and not how any reasonable person would surely expect their boneless nuggies to have bones BIGGER THAN MY LITTLE FINGER in them
There's a "how J.D. Vance likes his chicken wings" joke in here somewhere
With ranch. *angry buffalo noises*
(establishments around here in the buffamalo area are generally insistent that blue cheese dressing is the proper condiment, y'see)
posted by GCU Sweet and Full of Grace at 5:08 AM on July 26 [1 favorite]
There's a "how J.D. Vance likes his chicken wings" joke in here somewhere
With ranch. *angry buffalo noises*
(establishments around here in the buffamalo area are generally insistent that blue cheese dressing is the proper condiment, y'see)
posted by GCU Sweet and Full of Grace at 5:08 AM on July 26 [1 favorite]
I don't know if it should apply legally of course, just that I personally would run my fingers over that sort of preprepared chicken breast portion to check for bits of rib or keel. The dissent is kinda funny:
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 label ‘boneless wing’] was merely a description of the cooking style.” Majority opinion at ¶ 23. Jabberwocky.
There is, of course, no authority for this assertion, because no sensible person has ever written such a thing. The majority opinion also states that “[a] diner reading ‘boneless wings’ on a menu would no more believe that the restaurant was warranting the absence of bones in the items than believe that the items were made from chicken wings, just as a person eating ‘chicken fingers’ would know that he had not been served fingers.” Id. at ¶ 23. More utter jabberwocky.
Still, you have to give the majority its due; it realizes that boneless wings are not actually wings and that chicken fingers are not actually fingers. {¶ 37} The majority’s burst of common sense was short-lived, however, [...]
posted by lucidium at 5:09 AM on July 26 [12 favorites]
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 label ‘boneless wing’] was merely a description of the cooking style.” Majority opinion at ¶ 23. Jabberwocky.
There is, of course, no authority for this assertion, because no sensible person has ever written such a thing. The majority opinion also states that “[a] diner reading ‘boneless wings’ on a menu would no more believe that the restaurant was warranting the absence of bones in the items than believe that the items were made from chicken wings, just as a person eating ‘chicken fingers’ would know that he had not been served fingers.” Id. at ¶ 23. More utter jabberwocky.
Still, you have to give the majority its due; it realizes that boneless wings are not actually wings and that chicken fingers are not actually fingers. {¶ 37} The majority’s burst of common sense was short-lived, however, [...]
posted by lucidium at 5:09 AM on July 26 [12 favorites]
I was expecting this to be about one of those little flecks of bone where your tooth hits it and you're all EWWW NO but it's basically harmless and not how any reasonable person would surely expect their boneless nuggies to have bones BIGGER THAN MY LITTLE FINGER in them
Yeah, I was more or less on the whole "OK, nothing is perfect and flecks of bone in processed chicken product is a thing" bandwagon, but five centimeters is a really big bone fragment, far beyond a reasonable expectation of the amount of bone in an ostensibly boneless chicken product.
posted by jackbishop at 5:24 AM on July 26 [9 favorites]
Yeah, I was more or less on the whole "OK, nothing is perfect and flecks of bone in processed chicken product is a thing" bandwagon, but five centimeters is a really big bone fragment, far beyond a reasonable expectation of the amount of bone in an ostensibly boneless chicken product.
posted by jackbishop at 5:24 AM on July 26 [9 favorites]
Don't worry. This was just the Ohio supreme court, which has been stacked by Republican governors appointing two of the four Republican judges on the court. Now the case can safely go to the US supreme court, where... oh, yeah. Boneless justices.
posted by pracowity at 5:41 AM on July 26 [7 favorites]
posted by pracowity at 5:41 AM on July 26 [7 favorites]
If there's any lesson to be learned from Liebeck v. McDonald's (aka the "hot coffee severely burns customer" lawsuit), it's that you should apply extra scrutiny to any personal injury case that sounds like the victim is being ridiculous or over-reacting.
posted by Glegrinof the Pig-Man at 5:52 AM on July 26 [15 favorites]
posted by Glegrinof the Pig-Man at 5:52 AM on July 26 [15 favorites]
boneless wings were made from pre-butterflied, boneless, skinless chicken breasts
So the boneless chicken wings are neither boneless nor wings. At least there's chicken in them…?
posted by adamrice at 6:03 AM on July 26 [2 favorites]
So the boneless chicken wings are neither boneless nor wings. At least there's chicken in them…?
posted by adamrice at 6:03 AM on July 26 [2 favorites]
If I had a genie, I would use up one wish to ensure that the majority justices in this opinion, regardless of what they ordered, were always served a big bowl of bones.
It’s a cooking style, you see; you can’t take it literally.
posted by gauche at 6:19 AM on July 26 [5 favorites]
It’s a cooking style, you see; you can’t take it literally.
posted by gauche at 6:19 AM on July 26 [5 favorites]
Similarly, on reading “Ohio Supreme Court”, no reasonable person would develop an expectation of quality or supremeness from the word “Supreme”. The term would be interpreted as mere advertising superlative, similar to “super” or “they’re grrrrreeaattt” or “crunchtastic” or “finger-lickin’ good”. Nor would any reasonable person read the word “court” and expect any association with established law.
posted by sillyman at 6:26 AM on July 26 [17 favorites]
posted by sillyman at 6:26 AM on July 26 [17 favorites]
It only takes a single reasonable person thinking boneless means boneless to disprove a nonexistance claim. Or is the Ohio Supreme Court calling all of us unreasonable? Sounds like a pejorative, not an evidential claim. There clearly exist reasonable people who think the opposite.
posted by I-Write-Essays at 6:59 AM on July 26 [3 favorites]
posted by I-Write-Essays at 6:59 AM on July 26 [3 favorites]
Boneless chicken is like internet moderation. If you really want the bones removed properly you have to hire a person to do it, and it's expensive and time-consuming. One suspects that the problem is the people selling the chicken fingers don't just want boneless chicken, they want boneless chicken that they can get their hands on cheap, and they're more particular about the "cheap" than they are about the "boneless".
posted by Sing Or Swim at 7:09 AM on July 26
posted by Sing Or Swim at 7:09 AM on July 26
> At least there's chicken in them…?
The "chicken" implies the method of preparation, cf. chicken fried steak. These are simply breaded unknowables.
posted by lucidium at 7:17 AM on July 26 [9 favorites]
The "chicken" implies the method of preparation, cf. chicken fried steak. These are simply breaded unknowables.
posted by lucidium at 7:17 AM on July 26 [9 favorites]
Supreme court just means it comes with sour cream and diced tomatoes.
posted by Jon_Evil at 7:59 AM on July 26 [9 favorites]
posted by Jon_Evil at 7:59 AM on July 26 [9 favorites]
Found elsewhere: "Spineless court."
posted by k3ninho at 8:00 AM on July 26 [3 favorites]
posted by k3ninho at 8:00 AM on July 26 [3 favorites]
Medical records referred to the object as a “5cm-long chicken bone.”
Brother CHEW YOUR FOOD.
5cm is almost as long as my pinkie! Doubling chew dude. Is your average boneless wing even much bigger than 5-6 cm? Any longer than that, and it's a chicken finger. I think some more evaluation of where this bone came from is warranted.
posted by The_Vegetables at 8:00 AM on July 26
Brother CHEW YOUR FOOD.
5cm is almost as long as my pinkie! Doubling chew dude. Is your average boneless wing even much bigger than 5-6 cm? Any longer than that, and it's a chicken finger. I think some more evaluation of where this bone came from is warranted.
posted by The_Vegetables at 8:00 AM on July 26
Doubling chew dude.
No! Cook, keep bones that big out of yer fuckin' nuggies! It's not the job of the diner to be on the alert for ginormous bones in boneless stuff.
Constable Parrot ate one of those!
posted by GCU Sweet and Full of Grace at 8:11 AM on July 26 [4 favorites]
No! Cook, keep bones that big out of yer fuckin' nuggies! It's not the job of the diner to be on the alert for ginormous bones in boneless stuff.
Constable Parrot ate one of those!
posted by GCU Sweet and Full of Grace at 8:11 AM on July 26 [4 favorites]
In seriousness, though, this is an error resulting from the cooking and prep process missing a spot, not an attempt to knowingly pass off bone-in chicken parts as boneless.
That said, the restaurant and/or poultry packer should still be liable for not having sufficient food safety procedures in place to prevent the outcome that injured this man, and I think the ruling is doing legal and semantic gymnastics in order to avoid addressing who is liable and responsible for food safety.
posted by Jon_Evil at 8:19 AM on July 26 [2 favorites]
That said, the restaurant and/or poultry packer should still be liable for not having sufficient food safety procedures in place to prevent the outcome that injured this man, and I think the ruling is doing legal and semantic gymnastics in order to avoid addressing who is liable and responsible for food safety.
posted by Jon_Evil at 8:19 AM on July 26 [2 favorites]
this is an error resulting from the cooking and prep process missing a spot, not an attempt to knowingly pass off bone-in chicken parts as boneless.
It does look like the malfeasance here falls broadly under the umbrella of "negligence" rather than "fraud", in that the issue is not that it was described in a way inconsistent with what the purveyor was trying to deliver, but that their procedures failed to deliver an adequate specimen of that product.
But the way they described the product is relevant even if not deliberately deceptive, in that the description affects their responsibilities. "Making it free of dangerously large pieces of bones" is arguably a responsibility established by the description "boneless". If someone shoved an ordinary chicken wing down their maw and choked on it, I wouldn't have sympathy, because that is a reasonable and expected risk, and the avoidance of it is the customer's responsibility, with bone-in chicken. If they claim something is "boneless" without any caveats and a bone presents a health hazard, that seems like an act of negligence.
posted by jackbishop at 8:34 AM on July 26 [2 favorites]
It does look like the malfeasance here falls broadly under the umbrella of "negligence" rather than "fraud", in that the issue is not that it was described in a way inconsistent with what the purveyor was trying to deliver, but that their procedures failed to deliver an adequate specimen of that product.
But the way they described the product is relevant even if not deliberately deceptive, in that the description affects their responsibilities. "Making it free of dangerously large pieces of bones" is arguably a responsibility established by the description "boneless". If someone shoved an ordinary chicken wing down their maw and choked on it, I wouldn't have sympathy, because that is a reasonable and expected risk, and the avoidance of it is the customer's responsibility, with bone-in chicken. If they claim something is "boneless" without any caveats and a bone presents a health hazard, that seems like an act of negligence.
posted by jackbishop at 8:34 AM on July 26 [2 favorites]
Okay Ohio, do shitless hamburgers next
posted by scruss at 8:39 AM on July 26 [4 favorites]
posted by scruss at 8:39 AM on July 26 [4 favorites]
We're in trouble if a case involving shrimp fried rice bubbles up to this court.
posted by credulous at 8:43 AM on July 26 [5 favorites]
posted by credulous at 8:43 AM on July 26 [5 favorites]
edit: Joke already made. Supreme Court adequately disrespected.
posted by GoblinHoney at 9:24 AM on July 26 [1 favorite]
posted by GoblinHoney at 9:24 AM on July 26 [1 favorite]
Sadly, the court pooh poohed both the warranty and negligence claims. I actually have less of a problem with dismissing the negligence claim, as it's not necessarily the obvious slam dunk that the warranty claim is.
There is at least a possibility that a bone could have gotten in there in a way that doesn't rise to the level of negligence or that a restaurant doesn't have a duty of care that extends so far as to include not having, effectively, the wrong kind of food in their food.
What they definitely have is the responsibility to deliver the product they advertise. This is just basic contract law, the thing that even nutball Heritage Foundation approved judges are supposed to be ok with. That's what makes this particularly newsworthy.
posted by wierdo at 9:54 AM on July 26 [2 favorites]
There is at least a possibility that a bone could have gotten in there in a way that doesn't rise to the level of negligence or that a restaurant doesn't have a duty of care that extends so far as to include not having, effectively, the wrong kind of food in their food.
What they definitely have is the responsibility to deliver the product they advertise. This is just basic contract law, the thing that even nutball Heritage Foundation approved judges are supposed to be ok with. That's what makes this particularly newsworthy.
posted by wierdo at 9:54 AM on July 26 [2 favorites]
The law© is like a guilotine painted with a mural of a hair-saloon. Regardless of the PR and the depth of belief from rules-fetishists, laws and police have always ever and only been about powerful people inposing their will onto weaker people. Don't fall for the mural, its not a haircut, its a death trap.
posted by No Climate - No Food, No Food - No Future. at 9:56 AM on July 26 [2 favorites]
posted by No Climate - No Food, No Food - No Future. at 9:56 AM on July 26 [2 favorites]
I guess I'm a moron (who doesn't like, doesn't eat wings) but I absolutely would expect chicken "wings" to have chicken wing in them. Holy moly.
posted by Western Infidels at 9:56 AM on July 26 [1 favorite]
posted by Western Infidels at 9:56 AM on July 26 [1 favorite]
Metafilter: Breaded Unknowables
posted by No Climate - No Food, No Food - No Future. at 9:58 AM on July 26 [2 favorites]
posted by No Climate - No Food, No Food - No Future. at 9:58 AM on July 26 [2 favorites]
Do y'all realize that this ruling also means that Boneless Chicken Wings no longer even have to be made of chicken? It's just a cooking style. Not a guarantee!
posted by srboisvert at 10:01 AM on July 26 [3 favorites]
posted by srboisvert at 10:01 AM on July 26 [3 favorites]
The items in question don’t even need to be countable concrete objects. The menu can only be expected to advertise the abstract experience of boneless chicken wings, the definition of which is clearly unknowable.
posted by sillyman at 10:32 AM on July 26 [1 favorite]
posted by sillyman at 10:32 AM on July 26 [1 favorite]
Skinless, boneless chicken breast - which is what these boneless "wings" were made from - is absolutely not supposed to have any bone in it. I have never encountered a skinless, boneless chicken breast with bone in it, let a lone a 5cm bone. I am a "reasonable person." Those judges are full of shit.
posted by grumpybear69 at 10:46 AM on July 26 [6 favorites]
posted by grumpybear69 at 10:46 AM on July 26 [6 favorites]
But the menu said Shitless Judges….
posted by sillyman at 10:49 AM on July 26 [2 favorites]
posted by sillyman at 10:49 AM on July 26 [2 favorites]
Laws aren't real.
They're just a bunch of words that can be said to mean anything. It doesn't even have to be a law, you can just make something up by sticking two words together: "qualified immunity", "preexisting condition", "prior authorization", "boneless chicken".
posted by AlSweigart at 11:02 AM on July 26 [4 favorites]
They're just a bunch of words that can be said to mean anything. It doesn't even have to be a law, you can just make something up by sticking two words together: "qualified immunity", "preexisting condition", "prior authorization", "boneless chicken".
posted by AlSweigart at 11:02 AM on July 26 [4 favorites]
I mean there's a product on the shelves that calls itself Just Mayo despite having zero mayo in it. I'm not shocked that food titles are functionally meaningless anymore.
posted by Carillon at 12:23 PM on July 26 [1 favorite]
posted by Carillon at 12:23 PM on July 26 [1 favorite]
No, that's just as opposed to Tyrannical Mayo.
posted by GCU Sweet and Full of Grace at 12:24 PM on July 26 [6 favorites]
posted by GCU Sweet and Full of Grace at 12:24 PM on July 26 [6 favorites]
10/10, no notes
posted by Carillon at 12:36 PM on July 26 [2 favorites]
posted by Carillon at 12:36 PM on July 26 [2 favorites]
Boneless Chicken Wings no longer even have to be made of chicken? It's just a cooking style. Not a guarantee!
Well, "chicken fried steak" doesn't have any chicken in it,
(there it really is a description of a cooking style, though, i.e., "steak prepared the way fried chicken is cooked")
there's a product on the shelves that calls itself Just Mayo despite having zero mayo in it.
FWIW, there's been considerable legal action and controversy around exactly that, although it was nearly a decade ago. In 2014, Unilever (which makes Hellman's Mayonnaise) sued asserting false advertising, and in 2015, there was a class-action suit alleging deceptive trade practices. In among these two allegations, the FDA warned Hampton Creek that the name of their product was misleading.
posted by jackbishop at 12:50 PM on July 26 [1 favorite]
Well, "chicken fried steak" doesn't have any chicken in it,
(there it really is a description of a cooking style, though, i.e., "steak prepared the way fried chicken is cooked")
there's a product on the shelves that calls itself Just Mayo despite having zero mayo in it.
FWIW, there's been considerable legal action and controversy around exactly that, although it was nearly a decade ago. In 2014, Unilever (which makes Hellman's Mayonnaise) sued asserting false advertising, and in 2015, there was a class-action suit alleging deceptive trade practices. In among these two allegations, the FDA warned Hampton Creek that the name of their product was misleading.
posted by jackbishop at 12:50 PM on July 26 [1 favorite]
Per the dissent: Chicken bones can be very delicate, even those that are 1 3/8 inches long—the size of the bone that harmed Berkheimer, as noted by the court of appeals. [...] That is about the size of many needles, which are famously good at hiding. Imagine how well a slender chicken bone can remain hidden in something that is not easily picked apart, especially when the person that might encounter the bone does not expect it to be there.
Needle-thin, sharp-edged, and most recipes call for brining the chicken first -- which would make the bone flexible, too. Now I'm wondering if the cuts Berkheimer made were *around* a folded, cartilage-like piece of bone, which then unfolded in his throat after he'd chewed the meat around surrounding it and swallowed.
Also, the plaintiff had ordered his "usual" boneless-wing dish — he'd dined at "Wings on Brookwood" before, without incident, and I think he had a reasonable expectation that there were no bones in the entree that day.
posted by Iris Gambol at 4:58 PM on July 26 [1 favorite]
Needle-thin, sharp-edged, and most recipes call for brining the chicken first -- which would make the bone flexible, too. Now I'm wondering if the cuts Berkheimer made were *around* a folded, cartilage-like piece of bone, which then unfolded in his throat after he'd chewed the meat around surrounding it and swallowed.
Also, the plaintiff had ordered his "usual" boneless-wing dish — he'd dined at "Wings on Brookwood" before, without incident, and I think he had a reasonable expectation that there were no bones in the entree that day.
posted by Iris Gambol at 4:58 PM on July 26 [1 favorite]
The dissent is scathing: Still, you have to give the majority its due; it realizes that boneless wings are not actually wings and that chicken fingers are not actually fingers.The majority’s burst of common sense was short-lived, however, because its opinion also says that no person would conclude that a restaurant’s use of the word “boneless” on a menu was the equivalent of the restaurant’s “warranting the absence of bones.” Id. Actually, that is exactly what people think. It is, not surprisingly, also what dictionaries say. “Boneless” means “without a bone.”
See O’Dell v. DeJean’s Packing Co., Inc., 585 P.2d 399, 402 (Okla.App. July 18, 1978) (“If one purchases a whole fish to bake surely he or she could ‘reasonably expect’ to find bones in it. However, if one purchases fish patties or fish sticks, it seems unrealistic to say he would ‘reasonably expect’ to find bones in the processed items.”). Instead of applying the reasonable expectation test to a simple word—“boneless”—that needs no explanation, the majority has chosen to squint at that word until the majority’s “sense of the colloquial use of language is sufficiently dulled,” In re Ohio Edison Co., 2019- Ohio-2401, (DeWine, J., concurring), concluding instead that “boneless” means “you should expect bones.”
Donnelly's aiming this at DeWine; Donnelly wrote the majority opinion in the 2019 case and DeWine concurred, writing:
posted by Iris Gambol at 5:25 PM on July 26 [6 favorites]
See O’Dell v. DeJean’s Packing Co., Inc., 585 P.2d 399, 402 (Okla.App. July 18, 1978) (“If one purchases a whole fish to bake surely he or she could ‘reasonably expect’ to find bones in it. However, if one purchases fish patties or fish sticks, it seems unrealistic to say he would ‘reasonably expect’ to find bones in the processed items.”). Instead of applying the reasonable expectation test to a simple word—“boneless”—that needs no explanation, the majority has chosen to squint at that word until the majority’s “sense of the colloquial use of language is sufficiently dulled,” In re Ohio Edison Co., 2019- Ohio-2401, (DeWine, J., concurring), concluding instead that “boneless” means “you should expect bones.”
Donnelly's aiming this at DeWine; Donnelly wrote the majority opinion in the 2019 case and DeWine concurred, writing:
This case turns on the meaning of the word incentive [...] Here, PUCO [Public Utilities Commission of Ohio] appears to be playing the old dictionary definition matching game. According to the rules of that game, one chooses a single definition or part of a definition. Then one squints at the chosen words in isolation until one’s sense of the colloquial use of language is sufficiently dulled, and one concludes that the matter at hand could (just maybe) be covered by that definition. From this, a player of the game leaps to the conclusion that this is what the statute means.Oh, dear. This is going to make their golf outings very tense indeed.
Instead of playing this game, one should stop and take stock of how the word or words are actually used by ordinary speakers of the English language.
posted by Iris Gambol at 5:25 PM on July 26 [6 favorites]
The Federalist Society has suborned the US Justice System.
They owe no loyalty to the words of the law, justice, precident, the intentions of the writers of the law, common sense, or anything but power.
They control the majority of the SCOTUS, so there is no appeal.
The institutions of the USA will not save the people of the USA. The people will either save the institutions, or they will not.
posted by NotAYakk at 6:19 PM on July 26 [1 favorite]
They owe no loyalty to the words of the law, justice, precident, the intentions of the writers of the law, common sense, or anything but power.
They control the majority of the SCOTUS, so there is no appeal.
The institutions of the USA will not save the people of the USA. The people will either save the institutions, or they will not.
posted by NotAYakk at 6:19 PM on July 26 [1 favorite]
It seems like the real debate here isn't boneless vs bone-ful.
Rather it is whether food items sold should include hidden dangerous objects in them.
Let's say the wings had included a 5 cm long needle or steel shard of some kind.
In that case would we be arguing about whether or not the item was advertised as "needle free"?
No, we would just be cracking down on the seller for including something sharp and dangerous in food where it doesn't belong.
It's hard to see how the fact that the long, pointy, dangerous thing happens to be a bone changes the equation.
And when I say "cracking down" I have two things in mind:
- As a society we have an interest in keeping our food supply safe and creating the type of regulations that keep it that way. Including long, pointy, dangerous objects hidden within the food is by no means "safe".
- The customer here had real damage and some pretty serious medical bills. So who should pay them?
It seems quite reasonable that the food seller - who included a long, pointy, dangerous, unexpected object within the food sold - should be responsible for paying the damages.
It's kind of a dumb way to keep the food supply safe, but it's the "American Way" of doing so.
posted by flug at 10:44 PM on July 27 [1 favorite]
Rather it is whether food items sold should include hidden dangerous objects in them.
Let's say the wings had included a 5 cm long needle or steel shard of some kind.
In that case would we be arguing about whether or not the item was advertised as "needle free"?
No, we would just be cracking down on the seller for including something sharp and dangerous in food where it doesn't belong.
It's hard to see how the fact that the long, pointy, dangerous thing happens to be a bone changes the equation.
And when I say "cracking down" I have two things in mind:
- As a society we have an interest in keeping our food supply safe and creating the type of regulations that keep it that way. Including long, pointy, dangerous objects hidden within the food is by no means "safe".
- The customer here had real damage and some pretty serious medical bills. So who should pay them?
It seems quite reasonable that the food seller - who included a long, pointy, dangerous, unexpected object within the food sold - should be responsible for paying the damages.
It's kind of a dumb way to keep the food supply safe, but it's the "American Way" of doing so.
posted by flug at 10:44 PM on July 27 [1 favorite]
It seems like the real debate here isn't boneless vs bone-ful.
Actually, that's the exact debate. The logic by the majority is that chicken bones are not a "foreign substance" as it relates to the chicken, and even though it was advertised as boneless, since bones are not a foreign substance and a reasonable person shouldn't expect perfection in bone removal, there's no negligence.
It's hard to see how the fact that the long, pointy, dangerous thing happens to be a bone changes the equation.
I think it's pretty easy, actually. A needle or steel shard are most certainly "foreign substance[s]" in that context. Nobody's arguing otherwise.
I read the opinion and it does not twist logic to come to a predetermined result. It goes through Ohio cases dating to 1936, 1960, and 1991, which address a bone shard in a chicken pie (particularly on point), oyster shell shard in oysters, and fish bones in fish, respectively, and finds that the prevailing standard means the case was correctly dismissed.
It feels like this case is going to end up being viewed historically as the opposite of the McDonald's hot coffee case -- in which the plaintiff was widely mocked at the time, but history has found she was right. Here, the consensus is that the plaintiff is correct and the court is wrong, but I think that mostly comes down to the headlines and articles that don't actually explain the court's decision, and history will find the actual opinion makes sense.
posted by tubedogg at 4:39 PM on July 28
Actually, that's the exact debate. The logic by the majority is that chicken bones are not a "foreign substance" as it relates to the chicken, and even though it was advertised as boneless, since bones are not a foreign substance and a reasonable person shouldn't expect perfection in bone removal, there's no negligence.
It's hard to see how the fact that the long, pointy, dangerous thing happens to be a bone changes the equation.
I think it's pretty easy, actually. A needle or steel shard are most certainly "foreign substance[s]" in that context. Nobody's arguing otherwise.
I read the opinion and it does not twist logic to come to a predetermined result. It goes through Ohio cases dating to 1936, 1960, and 1991, which address a bone shard in a chicken pie (particularly on point), oyster shell shard in oysters, and fish bones in fish, respectively, and finds that the prevailing standard means the case was correctly dismissed.
Today we reaffirm the rule that we adopted in Allen [1960]: To determine whether a supplier of food breached its duty of care by failing to eliminate an injurious substance from the food, we look to whether the presence of the substance was something that the consumer could have reasonably expected and thus could have guarded against. And whether the substance was foreign to or natural to the food is relevant to determining what the consumer could have reasonably expected.
...
The [lower] court noted that the chicken had not been “ground or further manipulated prior to serving.” Id. In this way, the boneless wings were analogous to a fish fillet—and “‘everyone . . . knows that tiny bones may remain in even the best fillets of fish,’” Mathews v. Maysville Seafoods, Inc., 76 Ohio App.3d 624, 627 (12th Dist. 1991) (holding as a matter of law that a consumer should reasonably expect the presence of a fish bone in a fish fillet), quoting Yong Cha Hong v. Marriott Corp., 656 F.Supp. 445, 449 (D.Md. 1987).
The court of appeals also considered the size of the bone swallowed by Berkheimer, which it noted was approximately 1-3/8 inches long: “Such a bone is rather large given the description of the boneless wing’s size in the record [1-inch pieces], as well as Berkheimer’s decision to cut the wing into three bite sized pieces.”i.e., if he cut the chicken into three pieces and didn't even see the bone or catch it with his knife, what chance did the person preparing the food have at finding it?
It feels like this case is going to end up being viewed historically as the opposite of the McDonald's hot coffee case -- in which the plaintiff was widely mocked at the time, but history has found she was right. Here, the consensus is that the plaintiff is correct and the court is wrong, but I think that mostly comes down to the headlines and articles that don't actually explain the court's decision, and history will find the actual opinion makes sense.
posted by tubedogg at 4:39 PM on July 28
is this why the kids these days use "ohio" as the slang for "crazy"?
posted by numaner at 8:35 AM on July 29
posted by numaner at 8:35 AM on July 29
There may have been no negligence, but there was definitely a breach of warranty under the UCC. If you call something boneless, you are warranting by description that it contains no bones. There's also the warranty of fitness for purpose, where the plaintiff would have a great argument that a foodstuff with a shard of bone small enough to be easily missed but large enough to cause injury is not fit for purpose as food. Liability for breach of warranty is not contingent on negligence.
These claims were in the suit, yet the courts all chose to ignore them and focus entirely on the negligence part and decided if there was no negligence the whole suit had to be tossed. It makes no goddamn sense.
posted by wierdo at 4:11 PM on July 29 [3 favorites]
These claims were in the suit, yet the courts all chose to ignore them and focus entirely on the negligence part and decided if there was no negligence the whole suit had to be tossed. It makes no goddamn sense.
posted by wierdo at 4:11 PM on July 29 [3 favorites]
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