[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-
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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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        {¶ 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.
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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,

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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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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.




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