Berkheimer v. REKM, L.L.C. , 2018 Ohio 2668 ( 2018 )


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  • [Cite as Berkheimer v. REKM, L.L.C., 2018-Ohio-2668.]
    IN THE COURT OF APPEALS
    TWELFTH APPELLATE DISTRICT OF OHIO
    BUTLER COUNTY
    MICHAEL BERKHEIMER,                                    :
    Plaintiff-Appellant,                             :   CASE NO. CA2017-12-165
    :        OPINION
    - vs -                                                       7/9/2018
    :
    REKM, LLC, et al.,                                     :
    Defendants-Appellees.                            :
    CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
    Case No. CV2017-03-0490
    Minnillo & Jenkins Co., LPA, Christian A. Jenkins, David M. Gast, Robb S. Stokar, 2712
    Observatory Avenue, Cincinnati, Ohio 45208, for plaintiff-appellant
    Raymond H. Decker, Jr., 600 Vine Street, Suite 412, Cincinnati, Ohio 45202, for defendant-
    appellee, REKM, LLC d.b.a. Wings on Brookwood
    Locke Lord LLP, Ashlee M. Knuckey, 111 South Wacker Drive, Chicago, Illinois 60606, for
    defendants-appellees, Gordon Food Service, Inc. and Wayne Farms, LLC
    Green & Green, Jared A. Wagner, 800 Performance Place, 109 N. Main St., Dayton, Ohio
    45202, for defendant-appellee, Gordon Food Services, Inc.
    S. POWELL, P.J.
    {¶ 1} Plaintiff-appellant, Michael Berkheimer, appeals the decision of the Butler
    County Court of Common Pleas, which granted judgment on the pleadings to defendants-
    Butler CA2017-12-165
    appellees REKM, LLC, Gordon Food Service (GFS), and Wayne Farms, LLC. For the
    reasons discussed below we reverse the decision of the lower court.
    {¶ 2} Berkheimer allegedly ingested a bone in a "boneless wing," a chicken product
    that he ordered at "Wings on Brookwood," a restaurant owned by REKM. The bone lodged
    in his throat, causing infection and injury. Berkheimer filed a complaint against REKM, its
    food supplier GFS, and Wayne Farms, the manufacturer of the chicken product. In pertinent
    part, Berkheimer's complaint alleged:
    13. On April 1, 2016, Plaintiff was a patron at Wings on
    Brookwood, having dinner with seven (7) other patrons.
    14. Plaintiff ordered "Boneless Wings" as his dinner entrée at
    Wings on Brookwood.
    15. On April 1, 2016, Wings on Brookwood advertised boneless
    wings and the menu did not contain any warnings, notifications or
    disclaimers that the Boneless Wing products may contain bones.
    (Exhibit A).
    16. Plaintiff ordered [Boneless] Wings, as described on Wings on
    Brookwood's menu.
    17. Plaintiff was served what he believed to be boneless wings as
    advertised by Wings on Brookwood.
    18. While Plaintiff was consuming a boneless wing, he suddenly
    felt a foreign object in his throat.
    ***
    20. Plaintiff immediately stopped eating his meal and went to the
    bathroom in an attempt to clear his throat. Plaintiff regurgitated,
    but was unsuccessful in clearing the object.
    ***
    22. In the days that followed, Plaintiff was able only to consume
    small amounts of liquids and minimal food. At no time did Plaintiff
    attempt to consume any other chicken products following his meal
    at Wings on Brookwood.
    23. On April 4, 2016, Plaintiff reported to the emergency room due
    to a high fever and feeling the foreign object in his throat.
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    24. Upon examination, physicians discovered a chicken bone
    lodged in Plaintiff's throat.
    ***
    28. Plaintiff has been permanently injured as a result of ingesting
    the bone including, but not limited to, decreased cardiac function
    and paralysis of the [phrenic] nerve.
    29. Based on representations from counsel for Wings on
    Brookwood, the restaurant procures its boneless wing products
    from GFS.
    30. On information and belief, GFS distributed the chicken product
    (Boneless Skinless Chicken Tenderloins Clipped, Supplier 14411,
    Item Code 251925) to REKM, LLC that was the proximate cause
    of Plaintiff's injury.
    31. GFS obtained Boneless Skinless Chicken Tenderloins Clipped
    from supplier Wayne Farms.
    32. Wayne Farms is a chicken processor that provides various
    fresh and frozen chicken products for sale to GFS and other
    restaurant suppliers. As a result, it was foreseeable to Wayne
    Farms and GFS that the Boneless Skinless Chicken Tenderloins
    Clipped (Called Jumbo Clipped Chicken Tenderloins by Wayne
    Farms) would eventually be sold to retail customers such as
    Plaintiff.
    33. Wayne Farms advertises that its products are "hand cut" and
    that the boneless products are sold without bones. (Exhibit B).1
    {¶ 3} Berkheimer asserted claims against REKM for negligence, breach of
    warranty, adulterated food, misbranded food, and Ohio Deceptive Trade Practices Act.
    Against GFS, Berkheimer alleged negligence, breach of warranty, strict liability, and Ohio
    Deceptive Trade Practices Act.            And against Wayne Farms, Berkheimer pleaded
    negligence, breach of warranty, strict liability, adulterated food, misbranded food, and Ohio
    Deceptive Trade Practices Act.2
    1. Exhibit B is a flyer for Wayne Farm's chicken products. It states that Wayne Farm's "boneless chicken
    items are all deboned by hand, ensuring precision and accuracy."
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    Butler CA2017-12-165
    {¶ 4} After answering the complaint, REKM moved for judgment on the pleadings
    under Civ.R. 12(C). REKM argued that Berkheimer's negligence claim failed because
    REKM had no duty to warn Berkheimer of a bone in a boneless wing and that Berkheimer
    had the responsibility to anticipate and guard against the possibility of a bone in his meal.
    REKM further argued that all of Berkheimer's claims were derivative of the negligence claim.
    GFS and Wayne Foods also moved for judgment on the pleadings and asserted similar
    arguments.
    {¶ 5} The lower court granted judgment in favor of the defendants on all of
    Berkheimer's claims. The court found, as a matter of law, that bones are a natural part of
    chicken and Berkheimer should therefore have been on guard for bone in his boneless
    wing. The court further found that the term "boneless" was an irrelevant consideration as
    common sense dictated that one could find bones in a chicken dish, even if that dish were
    labeled "boneless."
    {¶ 6} Berkheimer appeals, raising three assignments of error.
    {¶ 7} Assignment of Error No. 1:
    {¶ 8} THE TRIAL COURT ERRED IN APPLYING THE FOREIGN-NATURAL TEST
    TO APPELLANT'S CLAIMS AS IT IS NOT THE APPLICABLE LEGAL TEST IN OHIO.
    {¶ 9} Assignment of Error No. 2:
    {¶ 10} THE TRIAL COURT ERRED WHEN IT RULED APPELLANT FAILED TO
    STATE A CLAIM UNDER THE REASONABLE EXPECTATION TEST.
    {¶ 11} Berkheimer's first and second assignments of error argue that the trial court
    erred in dismissing his negligence cause of action and this court will address them together.
    2. Berkheimer also filed a cause of action against United Healthcare Service, Inc. for its subrogation rights to
    medical services or payments made on his behalf. United asserted cross-claims against the remaining
    defendants. In its decision, the court dismissed Berkheimer's claim against United and dismissed United's
    cross-claims against the other defendants. United did not separately appeal the dismissal of its cross-claims
    and has not otherwise participated in this appeal.
    -4-
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    The defendants sought and the court granted dismissal under Civ.R. 12(C), which provides
    "[a]fter the pleadings are closed but within such times as not to delay the trial, any party
    may move for judgment on the pleadings."            Civ.R. 12(C) motions are specifically for
    resolving questions of law. Whaley v. Franklin Cty. Bd. of Commrs., 
    92 Ohio St. 3d 574
    ,
    581 (2001). Therefore, this court's standard of review is de novo. Cyrus v. Home Depot
    USA, 12th Dist. Clermont No. CA2007-09-098, 2008-Ohio-4315, ¶ 18.
    {¶ 12} "When a motion to dismiss comes at the pleading stage, it is viewed with
    disfavor and should rarely be granted." C.E. Greathouse & Son v. City of Middletown, 12th
    Dist. Butler No. CA85-05-047, 1986 Ohio App. LEXIS 7393, *4 (June 30, 1986), citing Kobe
    v. Kobe, 
    61 Ohio App. 2d 67
    , 68 (8th Dist.1978). "When considering a Civ.R. 12(C) motion
    for judgment on the pleadings, the trial court is restricted to consider only the allegations in
    the pleadings and must construe as true all the material allegations in the complaint, and
    all reasonable inferences that can be drawn from the complaint are in favor of the
    nonmoving party. Whaley at 581. Dismissal is appropriate under Civ.R. 12(C) when, after
    construing all material allegations in the complaint in favor of the nonmoving party, the court
    finds beyond doubt that the plaintiff can prove no set of facts in support of its claim that
    would entitle it to relief. State ex rel. Midwest Pride IV, Inc. v. Pontious, 
    75 Ohio St. 3d 565
    ,
    570 (1996).
    {¶ 13} The Ohio Supreme Court held that the possible presence of a piece of oyster
    shell in or attached to a fried oyster was so well known to anyone who eats oysters that, as
    a matter of law, one who eats oysters could reasonably anticipate and guard against eating
    such a shell, especially where the piece of oyster shell was large. Allen v. Grafton, 
    170 Ohio St. 249
    (1960). In finding for the defendant, the court reviewed two tests commonly
    applied by other courts with regard to the subject of injurious bones in meat dishes.
    {¶ 14} This court summarized those two tests in Mathews v. Maysville Seafoods,
    -5-
    Butler CA2017-12-165
    Inc., 
    76 Ohio App. 3d 624
    (12th Dist.1991). First, the "foreign-natural" test provides: "[b]ones
    which are natural to the type of meat served cannot legitimately be called a foreign
    substance, and a consumer who eats meat dishes ought to anticipate and be on his guard
    against the presence of such bones." 
    Id. at 625,
    quoting Mix v. Ingersoll Candy Co., 
    6 Cal. 2d 674
    , 682 (Cal.1936). Second, the "reasonable expectation" test asks what the
    consumer should reasonably expect to find in his or her food, not what might be natural to
    the ingredients of that food prior to preparation. 
    Id., citing Zabner
    v. Howard Johnson's Inc.,
    
    201 So. 2d 824
    , 826-827 (Fla.App.1967).
    {¶ 15} In Allen, the Ohio Supreme Court did not formally adopt either test, but
    seemed to incorporate aspects of both in its analysis. The court explained:
    In the instant case, it is not necessary to hold, as some of the
    above-cited cases do, that, because an oyster shell is natural to an
    oyster and thus not a substance "foreign" to an oyster, no liability
    can be predicated upon the sale of a fried oyster containing a piece
    of oyster shell. However, the fact, that something that is served
    with food and that will cause harm if eaten is natural to that food
    and so not a "foreign substance," will usually be an important factor
    in determining whether a consumer can reasonably anticipate and
    guard against it. * * *
    In our opinion, the possible presence of a piece of oyster shell in
    or attached to an oyster is so well known to anyone who eats
    oysters that we can say as a matter of law that one who eats
    oysters can reasonably anticipate and guard against eating such a
    piece of shell, especially where it is as big a piece as the one
    described in plaintiff's petition.
    Allen at 258-259.
    {¶ 16} In Mathews, this court applied the rule of Allen in a case involving a fish bone
    found in a filet of fish at a fast food restaurant. This court concluded that the trial court
    properly granted summary judgment to the defendants because a consumer could
    reasonably anticipate and guard against the presence of a fish bone in a fish fillet. 
    Mathews, 76 Ohio App. 3d at 627
    . We noted that the fish bone was alleged to have been approximately
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    one and one-half inch long and that other cases involving fish bones had held similarly for
    fish bone lengths of one centimeter and one inch. 
    Id. {¶ 17}
    This court concludes that it is not feasible to undertake the review called for
    by Allen with the record on appeal. The trial court dismissed Berkheimer's case at the
    pleading stage when material facts remained undetermined. The trial court therefore lacked
    the facts necessary to determine beyond doubt that Berkheimer could prove no set of facts
    that may entitle him to relief.
    {¶ 18} The complaint provides minimal detail identifying the chicken product
    allegedly consumed by Berkheimer. The only description consists of phrases such as
    "boneless wings" and "boneless, skinless chicken tenderloins, clipped," the latter of which
    was the identity of the chicken product "upon information and belief" as based on pre-suit
    discussions between counsel. Thus, it appears that Berkheimer was not certain at the time
    of the filing of the complaint as to the chicken product he consumed at Wings on Brookwood.
    {¶ 19} A "boneless" chicken does not exist in nature, so some level of processing
    necessarily was involved in the production of the food product. Yet the pleadings offer
    limited details in this regard. In Thompson v. Lawson Milk Co., 
    48 Ohio App. 2d 143
    (10th
    Dist.1976), which involved a processed meat product, i.e., chopped ham, the court found a
    question of fact with respect to whether a consumer would anticipate and could guard
    against breaking a tooth on hard cartilage while eating the chopped ham. 
    Id. at 147.
    Here,
    the only information regarding processing is contained in the flyer for "boneless skinless
    chicken tenderloins clipped." The flyer states that the product is "deboned by hand" but
    without explaining the hand deboning process. Footnoted text on the same flyer explains
    that the product is "minimally processed," which is similarly vague and unhelpful.
    {¶ 20} The complaint also fails to provide detail concerning the size of the chicken
    bone, other than to assert it was "large." In both Allen and Matthews, the size of the injurious
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    Butler CA2017-12-165
    object was a factor considered by the court in determining whether a person could
    reasonably anticipate or guard against its consumption.
    {¶ 21} The trial court's decision to dismiss Berkheimer's complaint at the pleading
    stage effectively stands for the proposition that there will never be a set of circumstances
    under which a plaintiff can recover for injuries suffered after ingesting a bone in a meat dish.
    This court does not construe the rule of Allen so broadly. Instead, Allen requires the court
    to consider the specific facts of the case in determining whether a consumer can reasonably
    anticipate and guard against eating an injurious object in a meat dish. That the object was
    a bone natural to the product is an important factor but is only one factor in that analysis.
    Thus, this is not an issue that is typically appropriate for a judgment on the pleadings.
    {¶ 22} Notably, nearly every Ohio case that we have reviewed that has applied the
    rule of Allen in favor of the defendant has resolved the matter in summary judgment. See
    Sharp v. Chipotle Mexican Grill of Colorado, LLC, Franklin C.P. No. 11CV10041, 2013 Ohio
    Misc. LEXIS 3007 (Aug. 15, 2013) (chicken bone in chicken burrito); Parianos v. Bruegger's
    Bagel Bakery, 8th Dist. Cuyahoga No. 84664, 2005-Ohio-113 (pig bone in a sausage patty,
    which was part of a sausage, egg, and cheese bagel sandwich); Lewis v. Handel's
    Homemade Ice Cream & Yogurt, 11th Dist. Trumbull No. 2002-T-0126, 2003-Ohio-3507
    (pistachio shells in a pistachio nut ice cream cone); Ruvolo v. Homovich, 
    149 Ohio App. 3d 701
    , 2002-Ohio-5852 (8th Dist.) (chicken bone in a chicken gordita sandwich); Mitchell v.
    T.G.I. Fridays, 
    140 Ohio App. 3d 459
    (7th Dist.2000) (clam shell in a fried clam strip); Soles
    v. Cheryl & Co. Gourmet Foods & Gifts, 3d Dist. Union No. 14-99-36, 1999 Ohio App. LEXIS
    5529 (Nov. 23, 1999) (pecan shells in a pecan cookie); Patton v. Flying J, Inc., 6th Dist. No.
    WD-96-056, 1997 Ohio App. LEXIS 2402 (June 6, 1997) (chicken bone in a chicken
    sandwich); Krumm v. ITT Continental Baking Co., 5th Dist. Fairfield No. 23-CA-81, 1981
    Ohio App. LEXIS 12451 (Dec. 9, 1981) (cherry pits in a cherry pie); and Schoonover v. Red
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    Lobster, 1st Dist. Hamilton No. C-790547, 1980 Ohio App. LEXIS 10206 (Oct. 15, 1980)
    (fish bone in filet of sole).
    {¶ 23} Accordingly, this court concludes that the lower court erred in granting
    judgment on the pleadings to the defendants. Berkheimer's first and second assignments
    of error are therefore sustained.
    {¶ 24} Assignment of Error No. 3:
    {¶ 25} THE TRIAL COURT ERRED BY EVALUATING ALL OF APPELLANT'S
    CLAIMS UNDER A NEGLIGENCE ANALYSIS.
    {¶ 26} In his third assignment of error, Berkheimer argues that the court erred in
    dismissing his remaining claims against the defendants. Berkheimer argues that the other
    claims were all independent of the negligence cause of action.
    {¶ 27} The defendants do not argue pleading deficiencies in the various additional
    claims in Berkheimer's complaint. Instead, the defendants argue that the court's holding
    with respect to the negligence claim nullifies those claims because of their derivative nature.
    The standard of review of a judgment rendered pursuant to Civ.R. 12(C) requires us to
    accept the material allegations in the complaint as true. Upon review, Berkheimer has
    properly pleaded those additional claims and the court erred in dismissing them.
    {¶ 28} Judgment reversed with respect to the dismissal of Berkheimer's claims
    against REKM, GFS, and Wayne Farms but affirmed as to the dismissal of claims by and
    against United Healthcare Service, Inc., and the matter is remanded for further proceedings.
    RINGLAND and PIPER, JJ., concur.
    -9-
    

Document Info

Docket Number: CA2017-12-165

Citation Numbers: 2018 Ohio 2668

Judges: S. Powell

Filed Date: 7/9/2018

Precedential Status: Precedential

Modified Date: 7/9/2018