Man burned by fajitas while praying can't sue Applebee's

Jim Walsh | (Cherry Hill, N.J.) Courier-Post

WESTAMPTON, N.J. — A man who leaned over a plate of sizzling fajitas to pray can't sue a Westampton restaurant because the dish burned him, an appellate court ruled Wednesday.

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."

Jimenez appealed, but a two-judge panel came to the same conclusion.

It noted business owners are required to "discover and eliminate dangerous conditions, to maintain the premises in safe condition and to avoid creating conditions that would render the premises unsafe."

But it said the risk posed by the hot platter was "self-evident." Applebee's, the ruling said, "had no duty to warn (Jimenez) that the food was sizzling hot and should be approached with due care."

An attorney for Jimenez, Richard Wiener of Conshohocken, declined to comment. A lawyer for Applebee's could not be reached.