by:  Peter J. Gallagher (@pjsgallagher)

In the interest of full disclosure, my family and I are frequent Applebee’s patrons. We have four kids, so casual dining is a staple of our dining out experience and there is an Applebee’s right near our house. We like Applebee’s food a great deal. Although I have never had the fajitas, it is hard to miss them when a waitress walks by with a loud, smoking plate of sizzling meat and vegetables that always inspires my kids to ask “what is that!”

With that confession out of the way, we turn to the recent Appellate Division decision in Jiminez v. Applebee’s Neighborhood Grill & Bar. In that case, plaintiff sued Applebee’s after he was injured while dining. Plaintiff, who was eating with his brother, ordered the fajitas and the waitress placed his plate — which plaintiff described as “sizzling,” “real dark,” “smoking,” and “real hot” — right in front of him. According to plaintiff, the waitress did not warn him that the plate was hot, but instead simply said “enjoy your meal.” Then this happened:

After the waitress walked away, [plaintiff’s brother] “reached over and said let’s have prayer.” Plaintiff bowed his head “[c]lose to the table.” Plaintiff said he heard a loud, sizzling noise, followed by “a pop noise,” and then felt a burning sensation in his left eye and on his face.

Plaintiff panicked, knocked his plate onto his lap and caused his prescription eye glasses to fall from his face. Plaintiff said he tried to push away from the table with his right arm. He used his left arm to brush the food from his lap. He soon felt that he had “pulled” something in his right arm. He stopped applying pressure to the table, “let [his] [right] hand go because [he] felt pain,” and “banged” his elbow on the table.

As a result of this incident, plaintiff sued, alleging that he was “injured as a result of defendants’ negligence when he came into contact with a dangerous and hazardous condition, specifically, ‘a plate of hot food.’” After discovery, defendants moved for summary judgment, arguing that, even if the fajitas were a dangerous or hazardous condition, they were entitled to summary judgment because the condition was open, obvious, and easily understood. The trial court agreed and granted the motion.

The Appellate Division affirmed. It noted that a business owner generally owes its invitees “a duty of reasonable . . . care to provide a safe environment for doing that which is within the scope of the invitation.” This duty requires the business owner to discover and eliminate dangerous conditions, to maintain the premises in safe condition, and to avoid creating unsafe conditions. In Jiminez, unlike most cases, the alleged dangerous condition was a “sizzling fajita platter,” nonetheless the Appellate Division analyzed it under the same general principles.

The Appellate Division held that, notwithstanding the general duty that a business owner owes its invitees, Applebee’s had no duty to warn plaintiff about the dangers associated with the fajitas because the risk was readily foreseeable to plaintiff. Specifically, the Appellate Division held that: the fajitas were “sizzling, smoking and ‘real hot’” when delivered to plaintiff; once delivered, Applebee’s had no control over the fajitas; and plaintiff had the “opportunity and ability to act to protect himself from any danger that it posed, since the danger was open and obvious.” Under these circumstances, the Appellate Division held that “imposition of a duty . . . to warn plaintiff of the danger presented by the sizzling hot platter [was] not required as a matter of fairness and sound policy.”