Plaintiff Hiram Jimenez ordered a steak fajita at Applebee’s. His food was brought to him in a sizzling skillet. After the waitress walked away, he bowed his head close to the table over his food to pray and grease from the food popped up and burned his face, neck, and arms. In Jimenez v. Applebee’s Neighborhood Grill & Bar, 2015 N.J. Super. Unpub. LEXIS 430 (App. Div. March 4, 2015), the plaintiff sued Applebee’s, claiming that he was injured as a result of the defendant ‘s negligence when he came into contact with a dangerous and hazardous condition, specifically “a plate of hot food.”
The defendant Applebee’s filed a motion for summary judgment, arguing that even if the plaintiff established the existence of a dangerous or hazardous condition, it was entitled to a dismissal because the condition was open and obvious. The trial court judge ruled that while the defendant did have a duty to provide its patron with a reasonably safe premises, it had no duty to warn against a danger that is open and obvious. Hence, the court found that the defendant breached no duty to plaintiff and dismissed the case.
The plaintiff appealed and argued that the trial judge was wrong in deciding that the defendant had no duty to warn the defendant of the danger posed by the sizzling plate of food that had been served to him. Here, the Appellate Division noted that the plaintiff was not arguing that there was any dangerous condition of the premises. Plaintiff only argued a duty to warn.
The appeals court stated that once the platter was served to the plaintiff, Applebee’s lost control over it and the plaintiff had the opportunity to protect himself from any danger that it posed, since the danger was open and obvious. The Appellate Division found that the imposition of a duty to warn plaintiff of this obvious danger was not required as a matter of fairness and sound policy. Thus, it affirmed the dismissal of the lawsuit.
