Litigious Dumbass Department
Jim Walsh writes at USA Today that an appellate court ruled that a man who stuck his face right over a plate of sizzling fajitas at Applebees to pray and then -- surprise! -- got some sizzle in his eye, should have known better:
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.
His lawsuit said a waitress did not warn Jimenez that the dish was hot. It argued Jimenez suffered "serious and permanent" injuries "solely as a result of (Applebee's) negligence when he came in contact with a dangerous and hazardous condition, specifically, 'a plate of hot food'."
A trial judge dismissed the suit, finding Applebee's -- a California-based chain with more than 1,900 restaurants -- was not required to warn Jimenez "against a danger that is open and obvious."
As we used to say in junior high, "Duh-hay."
via @TedFrank
Applebee's menu calls the dish "sizzling." Just what did he think that meant?
charles at March 6, 2015 5:08 AM
I think he thought it meant "payday."
Amy Alkon at March 6, 2015 5:56 AM
Yes, yes. But the real question is: was he ordered to pay Applebee's expenses in defending the suit?
I R A Darth Aggie at March 6, 2015 6:52 AM
I agree that any person should know that fajitas are still cooking when they come out, but I do have a small problem with that. I was in Posados and ordered some about 10 years ago. That little tin of Mexican butter they serve with the fajitas came to the table boiling, as always (why???), and the server accidentally tipped it into my lap. Thank goodness I had a napkin in my lap and jeans on. Why on earth does food have to be served so hot that it can burn you that badly? We won't eat it that hot, so why serve it when it's too hot to consume?
gooseegg at March 6, 2015 8:43 AM
His stupidity was in the state he chose. The Restatement of Torts (3d Edition) eliminates the "open and obvious" defense (e.g. there is no legal duty owed to someone when the hazard is open and obvious to a reasonable person). Under the new standard, the issue is changed from one of a legal duty, to a factual question of foreseeability (e.g. is it reasonably foreseeable that someone would do something as stupid as plaintiff did?). And, then you're off to the races of running up discovery costs and mediator fees, to determine whether it is cheaper to settle, or go through a trial and appeal, and pay a judgment, costs and accrued legal interest. Ever wonder how much of the cost of a product or service is litigation expenses?
How stupid was the plaintiff in NJ? That depends on if he was smart enough to pick a lawyer who can convince the NJ Supreme Court to adopt the Restatement of Torts (3d Ed) in his appeal.
Wfjag at March 6, 2015 11:18 AM
so why serve it when it's too hot to consume?
Because suckers are willing to pay extra
lujlp at March 6, 2015 11:57 AM
Yes, yes. But the real question is: was he ordered to pay Applebee's expenses in defending the suit?
Doubt it.
And Wfjag, thanks for the legal info you posted.
Amy Alkon at March 6, 2015 12:14 PM
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