It is unlikely that despite the company’s slogan, Applebee’s will be seeing Hiram Jimenez tomorrow. An appellate court in New Jersey ruled that Jimenez cannot sue after he was burned by a sizzling plate of fajitas.
The court ruled that the risk of hot food is an “open and obvious” danger. Jimenez no doubt argued that he understood that the plate was hot but that he was burned by a splattering dish. He said that he heard a popping noise and was burned. He said that the restaurant failed to warn him that he could be burned by simply being in close proximity with the dish. However, the court said that there is no duty to warn of things that are open and obvious. The panel distinguished such dangers with hidden dangers that may make the premises unsafe and must be made safe by the owner.
One could quibble with the assumption that a splattering (as opposed to a hot) dish is “self-evident” since it is likely to become evident when a customer is splattered. Yet, most people (and likely jurors) would probably come to the same conclusion.
Kudos: Professor Professor Roger E. Schechter
Me and my wife took a train from Southern CA to NY around1999 and a lady, while the train was not moving, spilled cup of noodles on herself. She made such a scene they gave her a free Cabin room.
As for Mexican food, I can’t stand it. When I moved to CA for about ten years I would tell people who would ask if I like Mexican food, “Sure, I love Doritos”. It used to piss off the locals.
Jim22 – oh, yea of little taste. 😉
There is a DVD about the McDonald’s hot coffee case. In fact, that’s the title of the DVD, “Hot Coffee”. It’s an interesting DVD, one that people should watch. There are a lot of stories about the lawsuit and about the recovery the woman received. It’s less than what most people usually state.
About the fajitas……even at our local mexican restaurant (I live in a very small town), when they bring the fajitas to your table, they are still sizzling and the waiter/waitress will always say, “hot plate”, although I already KNOW that if it’s still sizzling, then it’s hot and I should not touch it.
Tracie – I think it is a law of Mexican food that the plate is hot. Except tacos.
Important note: if you are not a seasoned traveler and wind up in Louisville, KY, stay at and eat at “The Brown” … and have the “Hot Brown” sandwich at least once. It won’t taste like wall board, I promise.
Nick wins the thread on the first comment. Tex-Mex food at Applebee’s? Please. That’s like going to Morton’s for Kimchi.
It does remind me of my experience at various Applebee’s a while back, when my daughter liked the place…so I ate there with her now and then. Everything was crud…if any meat was involved it was tiny tasteless bits on top of a huge pile of greens. Last time, before I swore off the place, I ordered Chicken Quesadilla …. figuring that they just could not wreck such a simple dish. Wrong! Tasted like dry wall…I mean, just how do you do that? I figured that they also got about 500 Quesadillas from each chicken and used process cheese to boot. Don’t know that for sure, since Velveeta would have improved the dish. 🙁
As someone who traveled a lot before retirement I ate where the group wanted to eat many times…always a big chain place, with uniformly unremarkable food … one exception was a single Ruby Tuesdays that actually had a great burger…with meat in it…how dare they 🙂 From then on I usually looked for local diners or if in the south, Waffle House…hard to mess up eggs, sausage (?), and grits….albeit “corporate” fur sure, and uniformly over seasoned…which I liked.
Aridog – we are lucky enough to live in an area where we have to select what type of Mexican food we want (Baja, Sonoran, New Mexico, etc.). It is a wonderland of Mexican foods. However, there is a shortage of tamales. They take a long time to make (labor intensive) and usually now are only available in large quantities around Xmas from private parties. 😉
Paul, I read and saw, many times.
Bad things happen when you defy physics.
So I disagree.
Were it me or you, the judge would have laughed at us.
It’s scalding because it sucks? Stop buying it.
I don’t believe it was her first cup.
It was a foolish act. I don’t do it with non-scalding coffee I made myself.
My point is that the Applebee’s suit is no different.
So why the differing outcome?
Better victim.
Pogo – the pictures of the damages to that woman’s legs are available on the Internet. McDonald’s is lucky they got away that cheap. McDonald’s was cheaping it out using cheap beans so they could make a better profit margin on their coffee. It had to be kept at scalding.
Similarly, pretty young things that have sex with their students get lighter sentences than homely women and men.
It’s just the way of the world here.
We live in a micro-managed world. When I grew up we could play any place on the block and we would spend the day free-playing. Today the kids are all scheduled, they have no free play.
That helicoptering/nanny-state is the same in government. We, as adults, are being allowed to do fewer and fewer things on our own. If Disney didn’t have such a great legal team, CA would have closed down their roller-coasters long ago.
What if he’d leaned down to smell the odor and lost an eye? What if in reaction he had flung the knife he had in his hand into someone’s neck, his own neck? If you’re going to pull a scam, then pull a scam.
A different victim would have prevailed.
A New Jersey man named Jimenez?
Please.
But give them a young pretty female, a very old lady, or a small child, and the court would have ruled in their favor.
Remember McDonald’s coffee. Same deal, different victim (Stella, 79 year old lady).
The “open and obvious” danger there was don’t put hot liquids in a paper cup between your legs while driving.
I know, I know.
“Trial testimony showed that at 180 to 190 degrees, McDonald’s coffee was much hotter than that served by other restaurants or by people in their homes. The fast-food chain had received at least 700 complaints about hot coffee in the previous decade and had paid more than half a million dollars in settlements, according to trial testimony cited by the Wall Street Journal.”
I still think she was a fool, and suggest that if Stella were instead a New Jersey man named Jimenez, we’d never had heard of the case.
Finally a little bit of sanity from the court system. “However, the court said that there is no duty to warn of things that are open and obvious. ” More courts need to apply this standard. Hot coffee at McDonald’s is hot. Duh.
In the link to the USA Today article it read that Mr. Jimenez leaned over the plate to pray and this is when the burning occurred. My interpretation of what the court said was that it was obvious and open that the risk was high in doing this more than just having the plate in front of the person.
On an anecdotal note, years ago I used to dine often at a Bacchus on Capitol Hill in Seattle. They served a cheese appetizer, saganiki. The wait staff brought the order out in a pan then set it alight–making a bright and resounding flame flare-up that was impressive. Quite tasty and the flame was admittedly half the reason I ordered it.
Later I returned and ordered the saganaki hoping for the usual experience but the flaming adventure never happened. When I asked the waitress why this no longer happened she informed me the fire department made them stop. Guess the city believes it must micromanage everything.
It is sad how companies and individuals must curtail so much fun in order to offer an allegedly safe, cookie-cutter, and sterile world.
Why is the restaurant serving dishes that are so hot that they are still splattering and bubbling when they are brought to the customer? How about serving the food hot, but not lava from the volcano scorching hot? Seems like a little common sense, on the part of the restaurant, is in order. Dishes that are still splattering hot grease should not be served to customers because of the chance that a patron could be harmed. Being warned that a dish is hot does not protect one from projectile grease. What is the customer supposed to do? Duck? Was this gentleman negligent by not taking cover or by failing to wear goggles? Lol!
Everyone enjoys fine dining. Be sure to get your reservations early:
” Corporate restaurants must die!”
After the franchise wars they will all be Taco Bells anyway.
Look at the helmets worn by professional football players. They have product liability warnings on them.
The sleeping pill container warns that “this medication may cause drowsiness.” Do we have to be warned that a sleeping pill will make us drowsy?
Whine Whine Whaaaammmmbbbbuuuuulllaaannnncccceeee 😉
Assumed risk needs to applied more often.
Btw, Did you see this Professor? Surprised you havent posted this yet, especially in light of Harris’s comments and her position and political aim.
http://www.usatoday.com/story/opinion/2015/03/08/justice-honesty-government-prosecutor-column/24611623/
Prosecutors protect themselves first: Column
I have noticed waiters emphasizing plates are VERY, VERY HOT” of late. Thanks ambulance chasers for all the warnings we have to endure. I bought a pair of good binoculars. In bold letters, “DO NOT LOOK DIRECTLY INTO SUN.” Ambulance chasers are screwing w/ Darwin.
Why the hell is a guy named Jimenez eating fajitas @ a freakin’ Applebee’s? Why does anyone eat in Applebee’s? Corporate restaurants must die!