Ohio State Senator William DeMora (D-Columbus) speaks at the Statehouse in Columbus, Ohio. (Photo by Graham Stokes for the Ohio Capital Journal. Republish the photo only with the original story.
An Ohio Democratic Senator recently introduced a bill in response to last summer’s Ohio Supreme Court ruling, which stated that a man who ordered boneless wings should have expected bones and denied him a jury trial after suffering serious injuries.
State Sen. Bill DeMora, D-Columbus, was outraged by the Supreme Court decision and introduced Senate Bill 38 last month, which would examine 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 before the Senate Judiciary Committee.
In 2016, Michael Berkheimer ate boneless wings at a Southwest Ohio restaurant and felt as if he had swallowed something wrong.
He developed a fever later that night and was admitted to the hospital a few days later with a temperature of 105 degrees. Doctors discovered a nearly two-inch chicken bone in his throat, which had ripped open the esophageal wall.
Berkheimer contracted an infection, underwent several surgeries, was in two medically induced comas, and spent a week in intensive care.
He sued the restaurants and their chicken suppliers in 2017, claiming “negligence” caused his injuries. The Butler County Court of Common Pleas and the Twelfth District Court of Appeals ruled against Berkheimer, preventing the case from going to trial.
The case went to the Ohio Supreme Court, where the majority ruled that the lower courts had made the correct decision. The decision was 4 Republicans to 3 Democrats.
The restaurant was not liable “when the consumer could have reasonably expected and guarded against the presence of the injurious substance in the food,” according to Ohio Supreme Court Justice Joe Deters’ majority opinion.
This story gained national attention and even aired on “The Late Show with Stephen Colbert.”
“What (Berkheimer) went through was horrific, time-consuming, and costly,” DeMora stated during his testimony.
However, the bill focuses on how judges decided Berkheimer’s case, not on his injuries.
“That’s not just wrong,” DeMora said. “It’s a direct assault on the very foundation of our legal system.”
S.B. 38 aims to change that.
“It will make sure that future cases like Mr. Berkheimer’s are heard by a jury – as our Constitution demands,” DeMora told the audience. “It will also make sure that when determining liability, we use the reasonable expectations test used by most states .”
