When Does Boneless Not Mean Without Bones?
When you are in the land of Ohio and the OSC decides.
About a year and a half ago, in a ruling striking down the Ohio state version of Chevron deference, the conservative majority on the state supreme court noted that “text should be given its contemporaneous and customary meaning.”
Yesterday, in a 4-3 opinion, the conservative justices decided that “boneless wings” can have bones in them.
Welcome to Buffalo Wildly Deadly Wings!
Michael Berkheimer ordered boneless wings from a restaurant and ended up swallowing a roughly 1-3/8-inch chicken bone. It tore his esophagus and caused a bacterial infection in his thoracic cavity. He sued the restaurant, the supplier, and the chicken farm. Rather than allow a jury to sort out liability, the state supreme court ruled that no jury could possibly believe a boneless wing would be free of bones.
AB: The last line in the paragraph above is funny and so true. The state of Ohio supreme court . . .
And regarding the food item’s being called a “boneless wing,” it is common sense that that label was merely a description of the cooking style. A diner reading “boneless wings” on a menu would no more believe that the restaurant was warranting the absence of bones in the items than believe that the items were made from chicken wings, just as a person eating “chicken fingers” would know that he had not been served fingers. The food item’s label on the menu described a cooking style; it was not a guarantee.
The majority is a bit nebulous on the limits of the “boneless” cooking style, but if you’re thinking that one of its hallmarks would be, at a minimum, a lack of bones, you would apparently be wrong in Ohio. Astoundingly, a few pages before this passage, the majority notes that the cook’s deposition testimony “explained that the boneless wings were made from pre-butterflied, boneless, skinless chicken breasts,” an odd description to include for raw chicken meat when you’re defining “boneless” as a cooking style and not a straightforward description of the boniness of meat.
The whole point of this “style” argument is to claim that the plain meaning of “boneless wing” is not that it’s boneless but that it’s made with breast meat. As though diners ordering boneless wings would be right to suspect they might be eating chunks of bone-in breast. That’s why the opinion invokes the humble chicken finger as another anatomically incorrect product. Ad bullsh.t ad astra (“to the stars“).
But kudos to defense counsel. Someone over there said,
“What if we contend that the word ‘boneless’ means ‘bones?’” And rather than say, “It might undermine our credibility with the court to sound like we’re f_cking idiots,” the partner thought, “Hey, you miss 100 percent of the shots you don’t take!”
In dissent, the three Democratic justices deployed a far less tenuous grasp of the English language.
The majority opinion states that “it is common sense that [the label ‘boneless wing’] was merely a description of the cooking style.” Majority opinion at ¶ 23. Jabberwocky. There is, of course, no authority for this assertion, because no sensible person has ever written such a thing.
And sensible people still have not.
You can read the rest of the article here: ‘Boneless’ Wings Can Have Bones, Declare Committed Textualists
Where was Justice Clarence Thomas during all of this nonsensical exchange?
I’m just imagining all those boneless chickens out in the feedlots pecking at their feed.
Not surprised. The requirements for what are enforceable guarantees in contracts are high. Calling it a cooking style sounds stupid; just saying the menu description did not constitute a contract guarantee maybe would have saved them from some ridicule.
It’s pretty common to represent your product or service in certain ways but guarantee far less…operational parameter X will be 15% lower than an accepted reference (lower = better), and guarantee 8%. “Boneless” on the menu is similar to a technical presentation that you’ll be 15% lower: not guarantees. I could go on for a very long time about guarantees and warranties, but I won’t!
Lesson here maybe is remember what mama said and chew that food.
I am not a lawyer but “boneless “ does not seem to be or imply warranty or guarantee, but rather it is a description.
Like a tubeless tire, I should not have to inspect each of my tires just to be certain there no tubes in them.
Turtles
i am having trouble understanding your logic here.
you say i should not have to inspect tubeless tires to make sure there are no tubes in them, but seem to be implying that i should have to inspect boneless chicken wings to make sure there are no bones in them>
Eric
I had not realized you were a lawyer..trained in the art of making the good seem bad and the bad seem good. I buy boneless, skinless chicken breasts to feed my dog because she has fat-intolerance. if she choked on a bone i would be very very angry. you don’t want to see me when i am angry.
i learned a long time ago that Supreme Courts were very happy to twist logic to fit the ruling they wanted to make. in my very brief exposure to law school i learned that upper division law students (who graded papers) were very willing to ignore facts and even their own spelling in order to reach a conclusion they wanted to reach. we are now seeing the culmination of that “little bit of evil” creeping slowly into our court system to where the courts are willing to blatantly ignore common sense, credibility, logic, and decency to rule in favor of the people who support their life style.
Just wait for the first left wing judge to rule that limited liability means only limited in the sense that it can’t be infinite. So much for the modern corporation. Humpty Dumpty had the RIGHT idea about the meaning of words.
would that be a boneless left wing?
cute . . .