14 Jul When Duty Calls, How Should Your Establishment Respond?

The Saturday night crowd in the popular restaurant is larger than usual. Guests are enjoying cocktails and conversations at the bar while waiting for a table. Food preparers are busy, but activity in the back of the house is going smoothly. Suddenly, a diner, in obvious distress, clutches his throat, seemingly unable to breathe. After a few tense moments, another member of the choking victim’s party gives his companion a few sharp blows to the upper back, dislodging the food that had caused the obstruction. Suffering from nothing more than some residual anxiety and a minor case of embarrassment, the diner appears no worse for wear.

The proprietor and staff breathe a collective sigh of relief, thankful that a calm, quick-thinking patron prevented what could have been a tragedy. Nevertheless, the incident raises an important question that all restaurant owners and operators must answer: What duty does a restaurant have to help a choking patron?

Generally speaking, the duty one individual owes to assist is necessarily relational. In other words, determining whether or not a duty is owed typically depends on the relationship between the individuals in question. For example, moral obligations aside, an individual who randomly comes across a stranger in need of assistance is generally under no legal obligation to render assistance to the distressed individual. However, if the law determines that a relationship does exist between the actors, then it may find that there is a legal duty to provide assistance.

In the restaurant context, a legal relationship does exist between the restaurant and its patrons because patrons are specifically invited to enter the restaurant’s premises for a purpose – buying and eating food – that is directly related to the restaurant’s business. Legally, this makes restaurant patrons invitees of the restaurant, as opposed to licensees (e.g., social guests) or trespassers. Once the relationship between the parties has been established, the duty a restaurant owes to its patrons can be determined.

Generally, a proprietor, a restaurant in this instance, is under an ordinary duty of care to render aid to an invitee after the proprietor knows or has reason to know that the invitee is ill or injured. In the context of choking patrons, courts have held that a restaurant must summon medical assistance within a reasonable time upon learning that a patron is choking.

Additionally, in the context of rendering first aid, courts have generally held that a restaurant is not under a duty to provide advanced first-aid, such as the Heimlich maneuver, to a choking patron. However, it is important to note that several states have enacted statutory provisions that may add to, or change, a restaurant’s obligations to choking patrons.

For example, Georgia’s statute requires the state’s Department of Human Resources to print and distribute notices explaining the proper procedure to be taken to assist or aid persons who are choking. Food service establishments are required to post and maintain these notices in conspicuous places on the premises. Like many other such statutes, Georgia’s provides immunity to any person who renders good faith emergency aid, without any charge, to persons who are choking.

Florida’s statute provides that a food service establishment must post a sign illustrating and describing the Heimlich maneuver. Additionally, the statute makes each food service establishment responsible for familiarizing its employees with the method of rendering such assistance. However, the statute expressly states that it does not impose a legal duty to render emergency assistance to a choking individual. Florida’s statute, like Georgia’s, also provides immunity to those who choose to render aid.

Oregon goes one step further by requiring food service employees in restaurants to be trained, within a reasonable time after hire, to administer emergency first aid to relieve any person choking on food particles. The Oregon statute contains an immunity provision similar to that found in the Georgia and Florida statutes.

The importance of being intimately familiar with any and all applicable state statutes or local regulations regarding choking patrons cannot be overstated. Owners and operators of restaurants should consult with a licensed attorney in every jurisdiction where their establishments operate to ensure strict compliance with the law.

Regrettably, the benefits of such compliance may become evident all too soon because, when it comes to choking, a situation can turn tragic in the blink of an eye. However, by making every effort the law demands, you not only decrease the likelihood of legal liability, but you also increase the likelihood that your patrons will enjoy pleasant and safe dining experiences.