Plan B Forum

Score one for commonsense

Man burned by fajitas while praying can't sue Applebee's

WESTAMPTON, N.J. — A man who leaned over a plate of sizzling fajitas to pray can't sue a Westampton restaurant because the dish burned him, an appellate court ruled Wednesday.

Hiram Jimenez sought damages from Applebee's Neighborhood Grill and Bar after a March 2010 incident at the chain's restaurant on Burlington-Mount Holly Road. But an appellate panel said Applebee's can't be held responsible because the hot food posed an "open and obvious" danger.

According to the ruling, Jimenez ordered fajitas that were placed in front of him in a "sizzling skillet." When he bowed his head "close to the table," the ruling says, Jimenez heard "a loud sizzling noise, followed by 'a pop noise' and then felt a burning sensation in his left eye and on his face."

In an incident report prepared for Appelebee's, Jimenez said he was burned on his face, neck and arms after "grease popped" on the fajitas.

http://www.usatoday.com/story/news/nati ... /24403053/

The "sizzling skillet" thing should have been a dead giveaway...

This was a case that apparently nobody believed was going anywhere. The final order for dismissal was entered in the trial court on January 27, the appeal was submitted to the appeals court on February 10 (usually a process that takes 6 months) and the decision was issued March 4 (by a two-judge panel), without even any oral argument.

The basis of the case seems to have been that the meal as served was presented in a dangerous condition. While that may be true, if it's a dangerous condition that's open and obvious to the customer, it simply doesn't require any additional warning, leaving not much of a case to pursue. The plaintiff certainly didn't help himself with the deposition testimony that is quoted in the decision.

I'll probably run into the attorney at the trial lawyers' convention next month, and if I do I'll ask him what the hell he was thinking.

Ok, holding one's face over hot food is a stupid idea, granted.

But if the grease in the dish "popped" so explosively as to hit not only his face, but on his arms as well, it would seem that the spatters would have hit him even if he were seated normally, albeit he would not have been burned as severely.

I have ordered my share of sizzling meals, but having boiling grease jump out of the pan and hit me is not something I would have ever thought to be an "open and obvious" danger.

But if the grease in the dish "popped" so explosively as to hit not only his face, but on his arms as well, it would seem that the spatters would have hit him even if he were seated normally, albeit he would not have been burned as severely.

Not if he were sitting with his hands folded near his face, bowed head, as many do when privately praying.

Ok, fair enough, I can see that.

So what if he had simply dug a fork into the pan to lift out stuff to build his fajita. Should grease popping and covering his hand in that case be considered an "open and obvious" danger?

Maybe I'm unusual, but I've had my share of fajitas on a sizzling skillet over the years, and I've always waited for the skillet to stop sizzling before attempting to consume the food on the skillet...

This guy's lucky that he didn't order Cherries Jubilee....



Probably would have set his nose on fire, and taken his eyebrows clean off...

Any time I had a "sizzling" plate of anything, the waiter tells me to be careful as the plate and food are hot and still sizzling. Don't know if the waiter gave this guy the same warning.

oldr_n_wsr wrote:Any time I had a "sizzling" plate of anything, the waiter tells me to be careful as the plate and food are hot and still sizzling.

That's been my experience, too, oldr. If anything, the waitstaff usually seem to be overly cautious in issuing such warnings.

i've even gotten a warning that the steak knife is sharp. (when it really wasn't)

oldr_n_wsr wrote:Any time I had a "sizzling" plate of anything, the waiter tells me to be careful as the plate and food are hot and still sizzling. Don't know if the waiter gave this guy the same warning.

They allegation in the complaint was that the server did not give that "watch out, hon, it's hot" warning. That's why the case was about whether serving a "sizzling" fajita in and of itself was an "open and obvious danger" that simply did not require a warning. If you think about it, there's really no way to tell just how hot your food/plate/pan is when it's just placed in front of you. How many times have you gotten a meal that's gone cold? But if it's actually sizzling, that might be sufficient indication that you should use caution.

But if it's actually sizzling, that might be sufficient indication that you should use caution.

One would think so.

How many times have you gotten a meal that's gone cold?

A cold meal won't harm you.

It's the "sizzling" that's the key here...

Because if it wasn't sizzling the grease wouldn't have been popping, which is what supposedly caused the injuries.

oldr_n_wsr wrote:i've even gotten a warning that the steak knife is sharp. (when it really wasn't)

That's because they saw you arrive in a small yellow bus...

How did you know?

Marmite, anyone?

No thanks
I'll have a stalagmite instead.