Remember the “boneless chicken wings” decision last summer by the Republican majority on the Ohio Supreme Court?
Do you remember all the laughter and derision from legal scholars and media pundits who found it oh-so amusing that the highest court in the state would find that a restaurant could advertise “boneless chicken wings” that in fact included bones?
Well, nobody’s laughing now.
That July 2024 decision is now the legal precedent for a 6-1 decision of the Ohio Supreme Court last week telling the widow of a TimkenSteel employee killed nine years ago by a nitrogen gas leak that she has no right to pursue compensatory damages in a court of law.
What nearly everyone missed at the time of the chicken wings decision was that it provided cover for every Ohio corporation from being found liable for harming any individual citizen with their products or in their workplaces.
A free pass for corporations. Even those whose actions cause harm to others.
Here’s how the “boneless chicken wings” case played out:
In July 2024, Republicans on the court — who had a four-member majority on the seven member court at the time — ruled that chicken wings advertised by a restaurant as “boneless” can indeed have bones.
This came after a man named Michael Berkheimer sued a Butler County restaurant after a 1-and-3/8-inch bone lodged in his throat, tearing open his esophagus and sending him to the hospital.
The four Republicans decided he had no right to seek damages.
It was Berkheimer’s fault, they said, that he did not inspect the wings advertised as "boneless" for bones.
The three Democrats on the court wanted to reconsider the court’s 4-3 July decision before the end of last year but the Republican majority said no.
And it likely never will be reconsidered because in last fall’s election, the Republican majority increased to six members, with Jennifer Brunner as the lone Democrat on the court.
Now, we fast-forward to May 2025:
The case before the Ohio Supreme Court involved the 2016 death of Ken Ray, a 32-year-old weekend security guard at a TimkenSteel plant near Canton.
Ray died of asphyxiation within seconds of walking into an industrial elevator control room at the plant.
It was discovered later that nitrogen gas had been leaking into the room, slowly replacing the oxygen in the air.
For years, Ray’s widow, Sharmel Culver, had been pursuing a lawsuit and workers compensation claims to seek punitive damages from TimkenSteel, now known as Metallus. In a wrongful death lawsuit, the damages could easily have been in the millions of dollars.
Culver had a state appeals court decision that was in her favor. But last week, the six Republicans on the Ohio Supreme Court ruled against her, saying that because nitrogen is a primary component of the air we breathe, it is not “toxic.”
The decision blocks Culver from seeking punitive damages from the company.
This decision by the six Republicans was done per curiam, meaning that it had no one author. That was not the case in the chicken bone case, which was written by Justice Joseph T. Deters.
“There is evidence in the record that nitrogen is not ‘toxic’ and not a ‘poison’ as those terms are commonly understood,” the Republican justices said in their ruling.
The argument from the widow’s side is that while nitrogen is a part of the air we breathe, elevated levels of nitrogen gas can very quickly turn it from harmless to lethal.
Brunner, the lone Democrat on the court, filed a very strongly worded dissent.
She said her GOP colleagues used “sleight of hand” in finding a way to side with corporations over workers.
“We can and should recognize that the term ‘hazardous concentration’ and the plain meaning of ‘toxic gases’ provide relief for fatally injured workers such as Ray,” Brunner wrote. “These regulatory terms are not and should not be used to perform ‘gotcha’ jurisprudence.”
Culver’s lawyer said he believes the result for his client is rooted in the “boneless chicken wing” decision of last year.
That July 2024 decision laid the groundwork for other cases involving the liability of corporations, including the death of Ken Ray.
It’s easy to see now that there is nothing at all funny about a court ruling saying boneless chicken wings can have bones. It’s serious business.
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