Adam J. Mintz

On the eve of her wedding day, Tiffany Fauvel visited the defendant sushi restaurant, Pacific East, with her soon-to-be husband, Alexander Cohen. While dining there, Fauvel was injured after ingesting several one-inch-long bones contained in the sushi she purchased. Fauvel and Cohen subsequently brought suit against the restaurant, alleging negligence and loss of consortium.

The trial court initially stayed discovery pending the Ohio Supreme Court’s decision in Berkheimer v. REKM L.L.C., 2024-Ohio-2787, recognizing that Berkheimer would establish the applicable standard of care for Fauvel’s food-based negligence claim. After Berkheimer was released, Pacific East moved for judgment on the pleadings, which the trial court granted; the plaintiffs appealed.

In Berkheimer, the Ohio Supreme Court clarified that, when confronted with food-based negligence claims, courts must apply a blended analysis incorporating both the “reasonable expectation test” and the “foreign-natural test” to determine whether a supplier breached its duty of care. Under this blended framework, a court must assess: (1) whether a reasonable consumer would expect to encounter and, thus, would guard against the injurious substance; and (2) whether the injurious substance found in the food was foreign to or natural to the food.

Upon review, the Eighth District Court of Appeals held that the trial court erred by granting Pacific East’s judgment on the pleadings because the complaint and answer did not contain sufficient factual detail to conduct the blended analysis contemplated in Berkheimer. The court explained that Berkheimer requires consideration of case-specific evidence, such as the type of food consumed, the preparation methods and how the substance relates to a consumer’s reasonable expectations, before determining whether a supplier breached its duty. Because the complaint and answer in Fauvel lacked that key factual context, a proper blended inquiry could not be performed, and it was inappropriate to resolve the case by judgment on the pleadings. Accordingly, the Eighth District reversed and remanded the case for further proceedings consistent with Berkheimer.

In so holding, the Eighth District emphasized that, in light of Berkheimer’s fact sensitive inquiry, food-based negligence is not an issue that is typically appropriate for judgment on the pleadings. However, the Eighth District also noted that nearly every Ohio case that applied the rules from Berkheimer in favor of the defendant resolved in summary judgment. Thus, Fauvel highlights that, while early dismissal is rarely available in food-based negligence cases, defendants now have a clear, fact-specific framework to guide defense strategy and challenge claims at later stages.