[Cite as Smith v. N. Ohio Med. Univ., 2013-Ohio-5919.]




                                                         Court of Claims of Ohio
                                                                          The Ohio Judicial Center
                                                                  65 South Front Street, Third Floor
                                                                             Columbus, OH 43215
                                                                   614.387.9800 or 1.800.824.8263
                                                                              www.cco.state.oh.us



SHAWN SMITH

         Plaintiff

         v.

NORTHEAST OHIO MEDICAL UNIVERSITY

         Defendant

         Case No. 2012-06017-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                         FINDINGS OF FACT
         {¶1}    1)      Plaintiff, Shawn Smith, asserted on June 5, 2012 while attending a
Time Warner Cable luncheon held at defendant, Northeast Ohio Medical University
(“NOMU”), he bit into a “ham wrap sandwich (when) a piece of bone or something broke
a piece of my tooth.” Plaintiff contended as the result of defendant negligently serving a
sandwich which contained a “piece of gristle or bone” he sustained damages to his
tooth.
         {¶2}    2)      Plaintiff filed this complaint seeking damages in the amount of
$2,400.00 for tooth repair and pain and suffering experienced at the time of the incident.
Plaintiff submitted the $25.00 filing fee with the complaint.
         {¶3}    3)      Defendant has denied liability in this matter contending it is not
responsible for the existence of gristle or bone in a ham sandwich. Defendant stated:
         {¶4}    “Gristle and bone are substances that are natural to ham, even when in a
Case No. 2012-08338-AD                    -2-                MEMORANDUM DECISION



wrap-style sandwich.      Further, the University has used this particular brand of
lunchmeat for over five years and has not had any sort of complaints regarding the ham
having dangerous gristle or bone in it.       Simply put, Plaintiff cannot establish that
Defendant breached any duty owed to Plaintiff.”
       {¶5}   4)     Plaintiff submitted a response to defendant’s investigation report.
                                    CONCLUSIONS OF LAW
       {¶6}   1)     For plaintiff to prevail on a claim of negligence, he must prove, by a
preponderance of the evidence, that defendant owed him a duty, that it breached that
duty, and that the breach proximately caused his injuries.        Armstrong v. Best Buy
Company, Inc., 99 Ohio St. 3d 79, 2003-Ohio-2573,788 N.E. 2d 1088, ¶8 citing Menifee
v. Ohio Welding Products, Inc., 15 Ohio St. 3d 75, 77, 472 N.E. 2d 707 (1984). Plaintiff
has the burden of proving, by a preponderance of the evidence, that he suffered a loss
and that this loss was proximately caused by defendant’s negligence. Barnum v. Ohio
State University, 76-0368-AD (1977).
       {¶7}   2)     “In Allen v. Grafton (1960), 170 Ohio St. 249, 164 N.E. 2d 167, the
Supreme Court of Ohio held that a piece of oyster shell present in a fried oyster was
insufficient to justify the legal conclusion that the entire serving was not reasonably fit
for eating. See id. at syllabus. In support of its reasoning, the Supreme Court stated
that ‘[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. *** Certainly no liability would attach to a
restaurant keeper for the serving of T-bone steak, or a beef stew, which contained a
bone natural to a type of meat served, or if a fish dish should contain a fish bone, or if a
cherry pie should contain a cherry stone ***.’ Allen, supra, quoting Mix v. Ingersoll
Candy Co. (1936), 6 Cal. 2d 674, 59 P. 2d 144 (It is a ‘matter of common knowledge
[that] chicken pies occasionally contain chicken bones.’).” Ruvolo v. Homovich, 149
Case No. 2012-08338-AD                    -3-               MEMORANDUM DECISION



Ohio App. 3d 701, 2002-Ohio-5852, 788 N.E. 2d 661 (8th Dist.).
       {¶8}   3)     Bone and gristle are natural occurring substances contained in a
ham sandwich.        Accordingly, a “consumer should reasonably anticipate” the
appearance of bone or gristle in a ham sandwich. Ruvolo at 703. And one who eats a
meat sandwich “must reasonably anticipate and guard against” the presence of bones
therein. See Mitchell v. Fridays, 140 Ohio App. 3d 459, 2000-Ohio-2591, 748 N.E. 2d
89 (7th Dist.); Matthews v Maysville Seafoods, Inc., 76 Ohio App. 3d 624, 602 N.E. 2d
764 (12th Dist. 1991); Patton v. Flying J, Inc., 6th Dist. No. WD-96-056 (June 6, 1997).
       {¶9}   4)     In the case at bar, plaintiff has failed to present any evidence that
he bit into a foreign substance and accordingly, failed to prove, by a preponderance of
the evidence, that defendant breached any duty owed to him. Therefore, plaintiff’s
claim is denied.
[Cite as Smith v. N. Ohio Med. Univ., 2013-Ohio-5919.]



                                                   Court of Claims of Ohio
                                                                               The Ohio Judicial Center
                                                                       65 South Front Street, Third Floor
                                                                                  Columbus, OH 43215
                                                                        614.387.9800 or 1.800.824.8263
                                                                                   www.cco.state.oh.us




SHAWN SMITH

       Plaintiff

       v.

NORTHEAST OHIO MEDICAL UNIVERSITY

       Defendant

Case No. 2012-06017-AD

Deputy Clerk Daniel R. Borchert


ENTRY OF ADMINISTRATIVE DETERMINATION




        Having considered all the evidence in the claim file and, for the reasons set forth
in the memorandum decision filed concurrently herewith, judgment is rendered in favor
of defendant. Court costs are assessed against plaintiff.



                                                         ________________________________
                                                         DANIEL R. BORCHERT
                                                         Deputy Clerk

Entry cc:

Shawn Smith                                              Amy Furey-Ligan
383 W. Wimisila Road                                     Office of the General Counsel
Akron, Ohio 44319                                        Northeast Ohio Medical University
                                                         4209 SR 44, P.O. Box 95
                                                         Rootstown, Ohio 44272
DRB/laa
filed 2/28/13
sent to S.C. Reporter 1/30/14
