Applebee’s Has No Duty To Warn You That Your Plate Of Smoking, Sizzling Fajitas Is Hot

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.”

Victory For Commercial Affordable Housing

by:  Katharine A. Muscalino

Private commercial developers have struggled to install affordable housing in New Jersey’s municipalities for decades, facing opposition from communities, local governments, and the municipal zoning boards.  The Appellate Division has just eased the burden of private developers by holding, for the first time explicitly, that affordable housing built by a commercial developer (as opposed to a non-profit or public entity) qualifies as an “inherently beneficial use” in Conifer Realty LLC v. Township of Middle Zoning Board of Adjustment (September 9, 2011).  By being categorized as an inherently beneficial use, commercial affordable housing is subject to a less stringent standard for obtaining use variance relief.  In support of this holding, the Appellate division noted that the courts have previously recognized that affordable housing is an inherently beneficial use in a “variety of circumstances” and that housing needs are “clearly related to the general welfare under the zoning laws.”

The Appellate Division found that the zoning board construed previous opinions holding that affordable housing is an inherently beneficial use too narrowly.  The board had maintained that because all existing caselaw had addressed affordable housing constructed by public of non-profit entities, a commercial developer’s affordable housing could not qualify as an inherently beneficial use.  The Court directed that in analyzing whether a proposed use is inherently beneficial, “the focus of the inquiry is whether the proposal furthers the general welfare, not whether the undertaking is one that is not-for-profit or a commercial enterprise.”

In addition to remanding the application to the Board for consideration under the less stringent inherently beneficial use standard (the Sica test), the Appellate Division found the Board’s concerns regarding the negative criteria to be arbitrary, capricious, and unreasonable.  The Appellate Division noted that the Board’s rejection of the application, base on density and environmental concerns, was contradicted by the Township’s Fair Share plan, which included the project, minimized the environmental impact, and promised to amend the zoning and density for the project.

Planning Board Can’t Deny Variance Based on Anticipated Inability of Applicant to Satisfy Site Plan Criteria

by:  Katharine A. Muscalino

The Bay Head Planning Board initially approved a bulk variance application submitted by a property owner who had inherited an irregular lot with just ten feet of frontage, where fifty feet was required.  Finding that denying a bulk variance for the frontage requirement would result in an undue hardship, and that the Applicant had adequately addressed concerns about emergency access to the Property resulting from the lot frontage variance, the Board approved the application with a 5-4 vote.  Per the approval, the Applicant was required to submit a drainage plan for the Borough Engineer’s approval at the time of site plan application.

Upon an objector’s prerogative writ suit, the parties discovered that a board member had voted on the bulk variance without attending all of the meetings or reviewing all of the transcripts.  The bulk variance application was remanded for a new vote, following a review of the transcripts by all of the board members.  The Board then voted to deny the bulk variance, with a 4-5 vote.  In its resolution, the Board explained that it denied application because the applicant had failed to provide “affirmative testimony… by any competent engineer… on how the applicant would address the well known drainage issues which plagued the proposed lot and more assuredly concerned the adjoining property owners.”

 

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