Abstract
On July 25, 2024, the Ohio Supreme Court issued one of its most controversial decisions since its founding in 1802. It ruffled many feathers when it appeared to defy common sense by ruling, in Berkheimer v. REKM, L.L.C., that boneless wings may contain bones. However, hidden beneath all the public backlash for this seemingly illogical ruling, one will find an opinion that made significant strides in the field of food negligence. How does this ruling advance food negligence law, you ask? Well, the court finally provided a satisfying answer to a long-standing question in food negligence: What test should states apply in food negligence cases?
Within the context of Berkheimer, this Note will explore the history of food negligence jurisprudence. More specifically, it examines the two prominent food negligence tests: the foreign-natural test and the reasonable expectations test. This overview of the two food negligence tests will lay the groundwork for explaining why modern tort law has largely abandoned the foreign-natural test in favor of the reasonable expectations test. Additionally, this Note discusses the unique history of Ohio food negligence precedent that culminated in the Berkheimer decision.
Next, this Note will examine Berkheimer in its entirety. Berkheimer was a classic food negligence case where the plaintiff was injured by a bone in his boneless chicken wings. There, the court adopted the “mixed” test—which combines elements of both the foreign-natural test and reasonable expectations test—as the official food negligence test of the State of Ohio.
This Note ultimately advocates for the universal adoption of the mixed test within the area of food negligence. A more nuanced approach would balance the objective nature of the foreign-natural test with the subjective nature of the reasonable expectations test, ensuring neither test is entirely ignored. By strictly applying the foreign-natural test while disregarding the reasonable expectations test, courts cloak restaurants in immunity by requiring the injury-causing substance to be foreign to the food. Likewise, by strictly applying the reasonable expectations test while disregarding the foreign-natural test, courts promote judicial inefficiency by requiring juries to resolve cases where the facts are not in dispute.
Overall, the Ohio Supreme Court made the correct decision in Berkheimer. Berkheimer is a significant case because it represents a pivotal development in the evolving field of food negligence law. By adopting the mixed test, courts can transition away from a plaintiff- or defendant-friendly standard to one that treats plaintiffs and defendants equally. Instead of facing backlash, the Berkheimer decision should be praised.
Recommended Citation
Morrison, Malachi I.
(2026)
"No Bones About It: Ohio’s Food Negligence Standard Should Be the Model for the Rest of the Country,"
Liberty University Law Review: Vol. 20:
Iss.
4, Article 4.
Available at:
https://digitalcommons.liberty.edu/lu_law_review/vol20/iss4/4
