A common, but rarely successful defense in a premises action is that the hazardous condition the plaintiff alleges was “open and obvious.” An open and obvious condition burdens a plaintiff with the exclusive obligation to avoid or use appropriate caution in the face of the condition and bars recovery for any injuries resulting therefrom.

In Jimenez v. Applebee’s, the plaintiff, a patron of the restaurant, ordered steak fajitas. The meal was presented on a sizzling hot plate, as is the Applebee’s way. Before digging in, the plaintiff bowed his head over the plate to pray. As he was praying, he heard the food “sizzle” and “pop,” the latter noise accompanied by grease which burned his face. The plaintiff filed suit, alleging that Applebee’s failed to warn him of the dangers associated with a plate of hot food.

Applebee’s successfully moved for summary judgment, arguing that even if the plate of hot food could be considered hazardous, the open and obvious nature of sizzling fajitas precluded the plaintiff from recovering for his injuries.

On appeal, the Appellate Division pointed out that as soon as the plate was delivered to the plaintiff, Applebee’s lost control over it. At that time, the plaintiff was burdened with the responsibility to protect himself from any danger the sizzling plate posed, finding that the plate and food it contained was open and obvious. Fairness and sound policy warranted affirmation of summary judgment.

Thanks to Emily Kidder for her contribution to this post, and please write to Mike Bono for more information.