Long Winded

GIVING THANKS

LONG WINDED By: Jason H. Long

London Amburn

When I was a child, my favorite holidays were Christmas and Halloween. I don’t think my preferences were unique among the kids my age. Presents, candy, costumes and long winter breaks from school are the recipes for kid-centric celebrations. While I never lost my fondness for those holidays, as I grew older, my perceptions and preferences changed. As a young man, I gained new appreciation for holidays like St. Patrick’s Day and New Year’s Eve. These were opportunities to go out and celebrate with my friends (yes, perhaps there was some alcohol involved at times). Of course, once I found the love of my life, Valentine’s Day became a more meaningful holiday. While I still believe it is an artifice of the greeting card industry, I do appreciate the reminder every February that I haven’t done enough to let Carol Anne know how much she means to me and how I would be totally lost without her. Still, as I enter my fifties, it is a completely different holiday which has begun to take center stage: Thanksgiving.

Thanksgiving used to be the holiday where we would sit around and watch parades and dog shows until mom served up a huge meal (often including items I would never eat . . . yams, ugh) and then everyone would fall asleep while we watched mediocre football games. On its face, Thanksgiving held no real interest for me in my youth. However, as my days of toys, candy and late-night partying have gone by the wayside, I have to say that I have come to truly appreciate the holiday. Food, family and rest are incredibly important priorities in my life now, not necessarily in that order. Thanksgiving is an older person’s game, and I think I am pretty good at playing it.

Sadly, that is not true for everyone. While the holiday should be a time of reflection and thanks, unfortunately, some have still found the need for conflict. Of course, with conflict comes lawyers. With that introduction, I give to you some of my favorite Thanksgiving-themed lawsuits over the years.

Helen Silva v. F.W. Woolworth Co. In 1938, Ms. Silva sat down to her turkey and dressing feast at a local Woolworths. As she dug in, she soon began to panic as she choked on a small turkey bone. Fortunately, another Woolworth’s patron saved the day, and Ms. Silva’s life, by rendering immediate aid. That did not stop Ms. Silva for filing suit against the company for her $38 in medical bills (she had a sore throat), and the embarrassment she claimed to have suffered. While she won judgment at trial, it was reversed on appeal when the Court ruled that negligence would only exist if a foreign object could be found which caused the injury. Because a bone could not be said to be foreign to turkey, it followed that there was no negligence, and Ms. Silva should have been aware of the risk. Ms. Silva’s attorneys made the argument that she had only consumed the dressing and that a bone would be foreign to that dish, but the Court considered turkey and dressing to be a single dish taken together and therefore the presence of bones would not be an anomaly to either portion of the dish. While I don’t like the result for Ms. Silva, I do appreciate that no one needs to eat turkey without dressing. Let’s be honest, turkey on its own is a virtually inedible meat. It requires the dressing to make it a palatable meal.

In 2016, more than three hundred people in Rochester, New York suffered food poisoning when they chose to celebrate Thanksgiving by partaking in the buffet at the Golden Pond Restaurant and Party House. The culprit was the gravy, which had been stored at an unacceptable temperature. Many were hospitalized and some cases were life threatening. Four separate lawsuits were filed, involving hundreds of Plaintiffs, and ultimately the restaurant was closed down and subsequently razed. A couple of thoughts here: I love a good buffet as much as the next man, but it just doesn’t have the Thanksgiving feel when you are picking up a new plate for your second helping of gravy and dressing that you have to ladle out under a protective sneeze-guard glass. Also, should you ever eat a meal at a place with the words “Party House” as part of its name? In 1937, a year before Ms. Silva almost choked to death, Mr. H.S. Nolen sued the Texas New Orleans Railroad when one of its freight trains, without sounding any kind of warning, ran over ten of his turkeys that had wandered upon the train tracks. He won and received a judgment of $18. On appeal the Court found that the turkeys were valued, for the purposes of calculating damages, at their Thanksgiving rates, since they were being raised for that market. However, Texas law required that property be valued at the time of loss. Since the accident occurred in August, the Court found that the turkeys could not be valued upon the Thanksgiving market, but rather the jury should have been instructed based upon the then-existing market rate, which would have resulted in a loss of $6 total for the ten turkeys. The case was remanded for further proceedings and we all learned the valuable lesson that a Thanksgiving dinner is three times more valuable that a turkey sandwich.

In 2003, Neil Jacobs sued James Kent for a turkey hunting accident gone terribly awry. Mr. Kent, while hunting with some friends, heard what he thought was a gobbling noise and saw movement in some bushes. He saw a flash of red and that was enough to take aim and fire. Unfortunately, the only thing he bagged was Mr. Jacobs, who thankfully recovered from the gunshot wound but ended up suing the over zealous Mr. Kent for his injuries. The Court denied Mr. Kent’s motion for summary judgment based upon assumption of the risk when expert testimony was presented to the Court that it was the duty of turkey hunters not to fire until they could see the entire bird and identify its gender. I am not a hunter, and this case occurred in New York where the rules may be a little different, but I would be interested to know if the expert’s opinion is true. If so, I can’t imagine I would ever take up turkey hunting. There is nothing less appealing to me than sitting out in the woods, fearful that someone else may shoot me because they think I “gobbled” while trying to stare at turkey genitalia all day long . . . but maybe that’s just me.

However you choose to spend the holiday, I hope it is relaxing and enjoyable and comes without the threat of litigation. Happy Thanksgiving.