The State Supreme Court has ruled that ‘boneless’ wings can contain bones, causing confusion among consumers and restaurants.
State Supreme Court Rules that ‘Boneless’ Wings Can’t Contain Bones
In this video, the focus is on UCC 2-313 and UCC 2-314, which are sections of the Uniform Commercial Code. UCC 2-313 deals with express warranties in the sale of goods, outlining the seller’s assurances about the quality and characteristics of the product. On the other hand, UCC 2-314 concerns implied warranties, which are automatically created by law and do not need to be explicitly stated by the seller.
Understanding these legal concepts is essential for both buyers and sellers in commercial transactions, as they dictate the rights and responsibilities of each party. By delving into the specifics of UCC 2-313 and UCC 2-314, viewers can gain valuable insights into the legal framework surrounding warranties in the sale of goods.
Judicial Mix-Up: Court Rules ‘Boneless’ Wings Can Still Have Bones
Welcome once again to Leo’s law here’s Steve leato my inbox has been inundated with emails regarding an opinion recently issued by the Ohio Supreme Court and is one of the most absurd things any of us have ever seen referring to myself and all the people who contact me Steve did you see this this is insanity yes it is the news is.
Responding as if it is in fact insanity and it is because the Ohio Supreme Court completely missed something that is so painfully obvious that I used to teach law school I taught law school for 10 years and if a student had handed this in as their quote unquote answer to a question I had written I would flunk them I would flunk.
Them and that’s because they just ruled that boneless chicken can contain bones so long as you can’t prove that the person who sold the boneless chicken had been negligent in doing so and they said as a matter of law you can’t even find that they were negligent in doing so and so negligence or lack thereof became a defense in a case which was actually a.
UCC case it has nothing to do with negligence and so this is kind of complicated but I think most people understand it at least they’ll understand it on the level that boneless chicken can’t contain bones without something being wrong the question is what is wrong with it so the case is called Burkheimer versus R km and it has.
To do with bones in chicken so Michael Burkheimer sued a restaurant its food supplier and the chicken farm after he suffered serious medical problems resulting from getting a chicken bone lodged in his throat while he’s eating a boneless wing there’s no question that the restaurant called it a boneless wing the trial court determined that as a.
Matter of law defendants were not negligent oh okay um is a lack of negligence of Defense to everything uh do you know I pulled you over why you ran a stop sign can you prove I was negligent no you ran the stop sign doesn’t matter whether you’re negligent or not so if they sell something that harms.
Somebody is a lack of negligence an absolute bar to every possible lawsuit no it’s not we’ll get there we’ll get there Burkheimer the plaintiff contends that the court of appeals focused on the wrong question cuz keep in mind the court of appeals agrees with us whether the bone that injured him was a natural thing for the boneless wing in.
Incorrectly determining the restaurant did not breach a duty of care in serving him the bonal swing and so here they’re talking about this all being a negligence claim keep in mind negligence is where I owe you a duty I breach that Duty and you are harmed and so you might say but Steve serving somebody bad food sounds like it could be negligent oh it.
Could be it can also be other things things so keep in mind that when I file a lemon law lawsuit it’s often a seven count complaint and one of those counts might be negligence but that’s not the only thing we’re suing under and quite frankly it’s a throwaway if someone said Steve your case will get dismissed unless you remove that negligence claim.
Oh You Yank it I don’t care uh there’s better things to go under trust me so to give you some background here Burkheimer had dinner with his wife and a small group of people at Wings on Brookwood a restaurant in Butler County owned by re k m LLC he placed his usual order which was boneless wings uh there was no warning in the menu indicating the.
Boneless Wings could contain bones now here’s the thing that’s irrelevant they were called boneless wings if they’re going to contain bones why is the word boneless there why not just call them chicken wings or buffalo wings or something but to call them boneless the word boneless must mean something are you saying boneless just simply.
Like a nickname or something in the following days uh he he had something lodged in his throat in the following days he had a fever and was unable to keep food down 3 days after eating them he went to an emergency room in response to his wife’s concern he might have something stuck in his throat and a doctor uh discovered a.
Thin chicken bone lodged in his esophagus it was 5 cm long according to the plaintiff the bone tore his esophagus causing a bacterial infection so they go on and on about all of this stuff that has to do with what happened now here’s the key Burkheimer filed a complaint which is a lawsuit against these parties his complaint alleged.
Claims of negligence adulterated food misbranded food violations of the Ohio deceptive Trade Practices Act and breach of warranty that is the best count here it’s the easiest one to prove and on these facts it has been proven breach of warranty in instead the court focuses entirely on negligence and says because.
There’s no negligence all the other counts go away and then they kind of gloss over the warrant they talk about whether the food is adulterated and adulterated of course means that there’s something in the food that shouldn’t be there and they say of course well chicken bones come from chicken wings so therefore it’s not adulterated they.
Claim it’s not misbranded because the restaurant wasn’t negligent and they say it’s not deceptive therefore all this goes out the window what about that breach of warranty claim oh well we’ll get there because the court spends 14 pages tap dancing around a lack of negligence so the defendants filed motions for judgment on the pleadings.
Which the trial court granted a district court reversed the trial Court’s judgment concluding that the facts weren’t in all yet the parties did more Discovery and then the trial court then granted the Motions determining it common sense Common Sense dictates that the presence of bone fragments in meat dish dishes is a natural enough.
Occurrence that a consumer should reasonably expect it and guard against it even dishes advertised as boneless now I’m going to have to ask you again seriously why do you call it boneless when you could simply call them chicken wings Chicken Wings boneless chicken wings so if I ask you what’s the difference between.
Chicken wings and boneless chicken wings the Ohio Supreme Court says no difference there’s no difference why why why why would there be a difference so they then posed two propositions of law one this is what they’re going to determine as a matter of law whether a consumer should reasonably expect anticipate and guard.
Against an injurious substance that has specifically been disclaimed by the seller I don’t remember them disclaiming that but and this court should bring Ohio in line with the rest of the country CU some other states have said that this can in fact be a cause of action but why don’t they address whether or.
Not it’s a breach of warranty oh well yeah no no no no no remember if I can frame the questions I can win the argument and if I can ignore questions I can really win it so the analysis here says this is labeled analysis this is Roman numeral 2 analysis plaintiff contends that defendants were negligent in producing Distributing or serving a.
Boneless wing with a bone in it in order to establish actionable negligence one must show the existence of a Duty breach of the duty and an injury resulting approximately there from yes that is true that is true if we’re just talking about Duty and negligence but um what about warranty well they go through this whole explanation about whether or not.
The parties that sell food are negligent when they have things that are still in the food and they say today we reaffirm the rule that we adopted in the previous case to determine whether a supplier of food breached its duty of care again negligence by failing to eliminate injurious substance from the food we look to whether the presence of the.
Substance was something a consumer could have reasonably expected and thus could have guarded against so it is it is the person at the restaurant it’s their job to make sure the food is safe according to this that’s that’s what the Court’s saying but worse they’re focusing on negligence focusing on negligence paragraph after paragraph and then.
There’s a dissent and The Descent is the other judges on the panel who disagree with the majority it’s a four or3 opinion so three judges think that this guy should have a case but four of them say he doesn’t and The Descent points out the absurdity of paragraph 23 the food items label on the menu describes a cooking style not a.
Guarantee how are these things cooked boneless that’s a cooking style according to the Supreme Court Now The Descent called that absurd I would concur that it is in fact absurd to say say that boneless chicken wings is a description of how they’re cooked it’s a cooking style how do you cook I do the.
Boneless thing so paragraph 24 The Descent wonders what would happen in cases involving food that were advertised as lactose free or gluten-free oh oh and by the way keep in mind that they’re saying that you should be aware of the fact that there could be bones in food containing meat right so there could be lactose or gluten also.
Cuz obviously those things occur food also but the court here says obviously such cases are not before us but unlike the presence of the bone in this case the presence of lactose or gluten in a food that was advertised as lactose free or gluten-free is not something a consumer would customarily expect what explain to me how I should expect.
Bones in boneless chicken but not gluten in gluten-free food again it’s not something a consumer would customarily expect or be able to guard against and so they’re actually saying that if you can expect it you should you should expect it now this is an idiotic ruling but I will.
I will point out the first sentence of The Descent who wrote the result in this case is another nail in the coffin of the American jury system the majority has taken it upon itself to decide the facts of this case and has determined that there is no set of facts under which appellant burine can establish the defendant negligence.
Today the majority declares as a matter of law that no reasonable person could consider the facts and reach that conclusion this of course patently untrue given that I and two other justices descent from the majority’s Judgment so yes the four justices of the Ohio Supreme Court are calling the other three unreasonable however however what.
I need to talk to you about is the fact that everybody appears to have skipped over breach of warranty breach of warranty and breach of warranty comes from a thing called The Uniform Commercial Code the uccc and I used to teach law school and I taught for 10 years a class where we talked about UCC specifically breach of warranty and you.
Have to understand there’s a couple different warranties we talk about one of them is the express warranty 2313 section 2- 313 Express warranties by affirmation promise description or sample Express warranties by the seller are created as follows any descript of the goods which is made part of the basis of the bargain.
Creates an Express warranty that the goods shall conform to the description okay so the question I ask of you then is how did they describe these Goods because the food served for consumption is a good and they said the food was boneless boneless is Boneless something we can measure yes does it have a bone no it’s boneless does it.
Have a bone yes it’s not boneless it’s measurable it’s it’s something we can objectively look at any description of the goods which is made part of the basis of the bargain creates an Express warranty that the goods shall conform to the description by the way it is not necessary to the creation of Express.
Warranty that the seller use formal words such as warrant or guarantee or that he have a specific intention to make a warranty but the fact that he says these things creates a warranty and so it is ored that those chicken wings are boneless that’s what that word means again if you don’t want to stand by it.
Don’t use that word boneless okay and uh you should also be aware that there’s another warranty at issue here the implied warrant of merchant ability 2314 uh a warranty that the goods shall be merchantable is implied in the contract for the sale of the sellers and Merchant with respect to Goods that kind under this section of serving a value of.
Food to be consumed on the premises or else is a sale so Goods to be merchantable uh must be fit for the ordinary purpose for which such goods are used so again to eat the food and have it put you in the hospital that’s a breach of the implied warranty so this case where the guy goes into a restaurant and eats a boneless chicken.
Wing there’s a bone in it that puts him in the hospital that is a breach of the implied warranty of merchant ability and it is a breach of the express warranty that the wing was boneless and the notion that the word boneless is simply a style of cooking is idiotic or as The Descent called it absurd so let me give you an example let me give you an.
Example I have right here a block of brass this is a a a a twb block of brass I put on Facebook Marketplace an ad that says hi everybody I got a 2B block of brass I’m willing to sell you I want money for it how much you give me for it somebody contacts me and goes what do you got there I go it’s a 2B 2B block of.
Brass and you say okay I’ll pay you and and you we we strike a bargain and um you send me money and I mail it to you and you open it up and the first thing he goes go wait a second dude this doesn’t weigh two pounds it weighs one pound um that’s wrong I say well you should understand things can weigh more than a.
Pound or less than a pound you should know that so no and you go number two it’s not even brass it’s copper let’s assume that brass matters to you for some reason and I go oh CU means copper well it also says copper right here and also says one pound right here so this instead of being a 2B block of brass is a one PB block of copper and I go yeah.
But you should understand that metal can be copper it can be brass it can be bronze it could be gold it could be silver it could be pot metal could be cast iron so you should know that you should know that case yes yes and I’m not going to talk about whether it’s fraud misrepresentation.
Negligence any of that all it is it’s a straight breach of warranty I made two explicit warranties how much it weighed and what it was did it weigh that no it weighed less so you probably got ripped off was it the correct metal no it’s the wrong medal boom breach of warranty breach of warranty that’s it and so to sit here.
And talk about whether or not somebody who’s negligent is irrelevant when it comes to the warranty and so I don’t know how this got missed because The Descent doesn’t mention it I look they Ed the word warranty once or twice but they did it in passing and I’m assuming that when the attorneys who were representing the plaintiff on this when.
They got the court of Supreme Court of Ohio I’m hoping they argued this but if they didn’t like seriously cuz right now the state of Ohio appears to be saying that you can make statements about stuff War anes and you’re not in breach so long as you weren’t negligent and I remember a couple times running into an argument similar to this.
In court where we’d be suing somebody over a failed repair attempt on a vehicle and saying it was a breach of warranty because it was being repaired under warranty and they failed it’s a breach of warranty and on a couple occasions young attorneys would actually say and go well we tried we tried and I’d say it doesn’t matter if.
They tried they failed they failed see I get to say it twice too your lack of negligence isn’t a defense to a breach of warranty claim and if you think it is I got a twb block of brass to sell you although copper might be worth more I don’t know it’s simply the point that if you make an explicit statement about.
The goods and you sell them to somebody you’ve got to stand by That explicit statement understand that it might it might come back to haunt you and so my question again is if you have a menu that’s got chicken wings on it and you you insert the word boneless in front of it and now you’re saying oh that word means nothing it means nothing and if.
Anything else it lulls the buyer into a full sense of security because they could eat it and get a chicken bone stuck in their throat and I understand what some of you going to say is go well Steve it’s going to drive the cost of chicken up if we actually have to make it all boneless oh maybe you should just stop calling it boneless.
Well then it won’t sell as fast oh this is about money isn’t it so this is the craziest worst decision I’ve seen in about a year or so from a high court I mentioned a couple years ago that Michigan Supreme Court made an idiotic ruling also in the lug nut case uh this is actually worse this is worse because in the lug nut case they.
Managed to gut a law called the motor vehicle service and repair act which I don’t think is is as widely used or as important as the Uniform Commercial Code section and warranties is but that might be a judgment call I don’t know the point is that the Ohio Supreme Court is basically saying that as long as you’re not negligent you can breach all the.
Warranties in the world and by the way it won’t even get to a jury because that’s what they’re fighting about right here this guy said I want to present this to a jury and let a jury decide whether I should get paid or not and let the other side make the argument that oh how it’s cooked is what we mean by boneless that describes the style of.
Cooking explain to me how the word boneless is a style of cooking is it cinjun style what does that mean what does that mean so you might ask Steve what do you think is really going on here oh what’s really going on here is you’ve got a a I’m guessing four members of the Court who are very very Pro business and to.
Them it’s just more of a pro business pro consumer thing but I could be wrong however this is an idiotic insane absurd ruling okay and you know I’m not a member of the Ohio State Bar so I can say these things but when it happened in Michigan I called that out too so again just to let you know that boneless chicken wings in Ohio can.
Contain bones and there ain’t nothing you can do about it if you’re injured by one because you should know that boneless chicken wings of all the things they contain it be bones why why wouldn’t that be the case so says the Ohio Supreme Court questions or comments put them below always talk to you later bye-bye.
Thank you for watching lato law I don’t know I’m making this up as I go
