In celebration of Thanksgiving, let us take a look at the unusual occasions where turkey presents itself in legal proceedings. In Arriaga v Smith (70 AD3d 1160), a Supreme Court, Appellate Division, case, the petitioner, Joseph Smith, was an inmate at the Shawangunk Correctional Facility. He was charged with theft of state property and smuggling after shoving over two pounds of turkey and nine slices of bread in a bag and retreating from the facility kitchen. When discovered by a corrections officer, Smith denied that the bag belonged to him. Nonetheless, he was convicted by a hearing officer. The Court upheld the conviction, finding that there was sufficient evidence that Smith engaged in theft of state property and smuggling, in violation of prison disciplinary rules.
In Jacobs v Kent (303 AD2d 1000), a Supreme Court, Appellate Division (Fourth Department), case, the plaintiff, a turkey hunter, brought a negligence action against the defendant, a fellow turkey hunter, alleging that the defendant mistakenly shot the plaintiff while they were both turkey hunting. The Court held that while the turkey hunters assume the risks inherent in the sport of hunting, they do not assume the risks associated with another hunter’s intentional or reckless conduct that unreasonably increases the sport’s inherent risks. As such, the plaintiff was allowed to sue, and a jury was allowed to determine if the defendant failed to abide by the rule that a hunter should wait until he sees a whole turkey and is able to ascertain its gender before he fires a shot.
In Reilly v Watson (9 Misc 3d 1114[A]), the plaintiff was travelling in the left lane on the Palisades Parkway. Suddenly, a wild turkey flew out of the bushes and hit her windshield, causing it to shatter. She put her signal on and slowed down to pull off the road, when she was hit in the rear by the defendant. The defendant testified that shortly before the accident, he saw something moving in the median on the left side of the roadway, and turned his head to see the cause of the movement. He then looked up, and saw the plaintiff’s automobile slowing down. He applied his brakes, but could not stop in time. The jury determined that since the defendant gave a non-negligent explanation as to the reason why he rear-ended the plaintiff’s vehicle, he was not liable for the accident.
In Silva v Woolworth Company (28 Cal App 2d 649), the plaintiff ordered a plate of roast turkey with dressing and vegetables at Woolworth’s. When it was served to her, she removed the one slice of turkey and ate some of the dressing. She choked, or gagged, and with the aid of a bystander emitted a small bone about three-quarters of an inch long. She carefully preserved the bone, and sued the defendant for injuries. The court held that the criteria for determining liability when choking on an object found in food is whether the object is “foreign” to the dish served. It was held that bones that are natural to the type of meat served cannot legitimately be called a foreign substance, and a consumer who eats that type of dish ought to anticipate and be on his guard against the presence of such bones. The direct holding was that a turkey bone is not a foreign substance to a turkey dish, just as a beef bone found in a steak or beef stew, or a fish bone found in a fish dish is not foreign, and does not render the food unfit for human consumption.
Happy Thanksgiving everyone!
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