Following a recent Ohio Supreme Court ruling that a bone in a "boneless" chicken wing was not unreasonable, a state lawmaker introduced a bill aiming to define "reasonable expectation" in food injury cases. S.B. No. 38, introduced by Democratic Senator William Demora, would establish a "reasonable expectation test" for determining liability when someone is injured by consuming food containing a harmful substance.

The bill's introduction comes after the Ohio Supreme Court, in a 4-3 decision, upheld the dismissal of a lawsuit filed by Michael Berkheimer, who swallowed a bone in a "boneless" wing. The court's majority opinion stated that "boneless wings" refer to a cooking style, not a guarantee of a bone-free product, and that sellers are not liable when a customer could reasonably expect and guard against a hazardous substance in food.

S.B. 38 seeks to codify the "reasonable expectation" standard, stating that liability hinges on whether the injured person, in consuming the food, "had a reasonable expectation that the food did not contain a substance that is injurious to human health." The bill specifies that "the trier of fact" – typically a jury – would make this determination.

The Supreme Court ruling that prompted the bill involved Berkheimer's 2017 lawsuit against a restaurant and its chicken suppliers. He sued after a 1 3/8-inch bone fragment was found in his 1-inch "boneless" wing. The court’s decision sparked debate, with the dissenting justices arguing that a jury should decide what a customer reasonably expects when ordering such a dish.

Justice Michael P. Donnelly, in his dissent, wrote that the majority "oddly declares that 'boneless' means 'you should expect bones.'" Justices Melody Stewart and Jennifer Brunner joined Donnelly's dissent. The new bill could shift the balance of such cases by placing the "reasonable expectation" determination in the hands of a jury.