Drew v. LeJay's Sportmen's Cafe, Inc.

• Decision Date: 04 March 1991
• Docket Number: No. 90-38,90-38
• Citation: 806 P.2d 301,2 A.L.R.4th 1172
• Parties: Wauneta DREW, Personal Representative of the Estate of Eddie Drew, Deceased, Appellant (Plaintiff), v. LeJAY'S SPORTSMEN'S CAFE, INC., a Wyoming Corporation, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 301

806 P.2d 301

2 A.L.R.5th 1172

Wauneta DREW, Personal Representative of the Estate of Eddie Drew, Deceased, Appellant (Plaintiff), v. LeJAY'S SPORTSMEN'S CAFE, INC., a Wyoming Corporation, Appellee (Defendant).

No. 90-38.

Supreme Court of Wyoming.

March 4, 1991.

Bernard Q. Phelan, Cheyenne, for appellant.

G.G. Greenlee and Kathleen B. Simon of Murane & Bostwick, Casper, for appellee.

Before URBIGKIT, C.J., and THOMAS, CARDINE, MACY and GOLDEN, JJ.

GOLDEN, Justice.

In this appeal we determine the nature and scope of the duty of care which a restaurant owner owes to a customer who chokes on food and is in imminent need of medical attention. Appellant Wauneta Drew filed a wrongful death action against LeJay's Sportsmen's Cafe, Inc. (LeJay's) of Jackson, Wyoming, alleging that her thirty-seven year old son, Eddie Drew, died on July 5, 1986, because of the restaurant's negligence in failing to render first aid and summon emergency help after restaurant employees knew or had reason to know that Eddie, a customer, was in imminent need of medical attention.

Following discovery and before trial, the restaurant moved for summary judgment contending that as a matter of law the restaurant owed its customer neither a duty to summon emergency medical help nor a duty to render first aid until emergency medical help arrived. The trial court granted the restaurant partial summary judgment, holding that the restaurant did not owe its customer a duty to render first aid until emergency medical help arrived. At trial, over Mrs. Drew's objection, the trial court instructed the jury that the restaurant owed its customer a duty to summon medical assistance within a reasonable Mrs. Drew appeals both the trial court's grant of partial summary judgment and the judgment entered on the jury's verdict based on the trial court's jury instruction on the duty owed by the restaurant to its customer.

time, but that it did not owe a duty to provide medical training to its food service personnel or medical rescue services to its customers. The jury returned a verdict in favor of the restaurant.

We affirm in all respects.

Mrs. Drew states the issues in this way:

1. Whether the court erred in granting Partial Summary Judgment wherein the court determined, as a matter of law, what specific conduct would be reasonable under the circumstances.

2. Whether the court erred in rejecting the general duty of care owed to invitees set forth in Section 314A of the Restatement of Torts, Second.

The restaurant restates the issues as follows:

I. What is the duty of a restaurant owner or his employee to a patron who becomes ill or incapacitated while an invitee at the restaurant?

II. Did the trial court properly define and instruct the jury on the defendant's legal duty?

The record from which we work consists only of the summary judgment materials since no trial transcript was submitted. In support of its motion for summary judgment, the restaurant submitted the transcript of the deposition of Ted Gonzales, the deceased's friend who was with him at the restaurant; the transcript of the deposition of Howard Hutchings, director of the environmental health program in the Division of Health and Medical Services, State of Wyoming; and a portion of the transcript of the deposition of Gretchen Zuber, executive director of the Wyoming Heart Association. In opposition to the restaurant's motion, Mrs. Drew submitted excerpted portions of the transcripts of the depositions of Leland Walter, the restaurant's owner; Claudette Schlauger, the restaurant's waitress that served the deceased; Kathy Collet, another of the restaurant's waitresses; Howard Hutchings and Gretchen Zuber.

Because the trial court's holding as to the nature and scope of the restaurant's duty of care was the same for the purposes of both the summary judgment motion and the jury instruction, our task is to determine whether that holding was correct as a matter of law. We shall summarize the facts framing the presentation of this legal question in the light most favorable to Mrs. Drew. The evidence describing the events of the incident in which Mrs. Drew's son choked on his food comes, in large measure, from the transcript of the deposition of Ted Gonzales, the son's companion during the incident. The parties do not dispute the essential facts.

FACTS

Eddie Drew and Ted Gonzales drove from Rock Springs to Jackson on July 3, 1986, to "party" over the Independence Day weekend. After frequenting the bars for several hours on the 4th of July and continuing into the early hours of the 5th, they arrived at LeJay's restaurant about 1:30 a.m., July 5, where they continued to drink while waiting for a table and after they were seated. Drew started choking after only a few bites of his meal.

Gonzales' testimony about his reaction to Drew's choking demonstrates that he was slow to realize the seriousness of the situation. When Drew could no longer talk and did not move, Gonzales finally sought help. Gonzales' testimony is confusing about the sequence of those he spoke to for help and what kind of help he asked for. Initially, he simply asked three or four times for a cloth to wipe Drew's mouth, but he testified that he also said several times, "This man is dying over here." After several efforts to get the attention of restaurant employees regarding Drew's choking, a threat was made to Gonzales that the police would be called and Gonzales said to call them. From the testimony Gonzales talked to waitresses, the cashier, and the cook. It is not clear how many times Gonzales Some time during all of this activity, Gonzales had asked customers near Drew for help, and they placed Drew on the floor and gave him mouth-to-mouth resuscitation. When the police arrived, they continued giving mouth-to-mouth resuscitation to Drew. Although Gonzales told the police Drew was dying and to call an ambulance, this was not done right away. It is not clear from the record how long the wait was for an ambulance to be called or who made the call.

asked these employees for help, or in what order, but he did ask more than once.

By 2:38 a.m. the ambulance was en route to the restaurant; it began its return trip to the hospital by 2:52 a.m., arriving at 2:55 a.m. Efforts during the ambulance ride and at the hospital failed to revive Drew. At the hospital a two-inch by two-inch chunk of meat was removed from Drew's trachea. That chunk had caused Drew to have cardiorespiratory arrest. Despite a flight for life to a Denver hospital and further medical attention there, Drew was pronounced dead at 5:51 p.m.

DISCUSSION

At the jury trial, Mrs. Drew's counsel offered two jury instructions, "C" and "D," purporting to correctly state the law as found in Restatement (Second) of Torts, § 314A (1965). The Restatement section provides:

§ 314A. Special Relations Giving Rise to Duty to Aid or Protect

(1) A common carrier is under a duty to its passengers to take reasonable action

(a) to protect them against unreasonable risk of physical harm, and

(b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.

(2) An innkeeper is under a similar duty to his guests.

(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.

(4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.

The trial court rejected Mrs. Drew's proposed jury instructions "C" and "D."

Instruction C

You are instructed that a possessor of land who holds it open to the public has a duty to the members of the public, who enter the premises in response to its invitation, to take reasonable action to give them first aid after it knows or has reason to know that they are ill or injured and to care for them until they can be cared for by others.

Instruction D

To prevail in its cause of action against the defendant, the plaintiff must prove by a preponderance of the evidence the following:

1. That the defendant was a possessor of land and held it open to the public;

2. That Eddie Drew, deceased, entered defendant's land in response to defendant's invitation;

3. That Eddie Drew, deceased, became ill or injured while he was in the premises of the defendant;

4. That the defendant through its agents or employees was negligent by failing to take reasonable action to give first aid to Eddie Drew after it knew or had reason to know that he was ill or injured, and to care for him until he could be cared for by others.

5. That, as approximate cause of defendant's failure to take reasonable action to give first aid and care for Eddie Drew, he died.

6. That Wauneta Drew, Glenn Drew, Gary Drew, Dennis Drew and Marvena Houke have suffered damages in the form of lost pecuniary support and lost companionship, society and comfort.

In determining whether an issue has been proved by a preponderance of the evidence, you should consider all of the evidence bearing upon that issue regardless of who produced it. The existence of such proposition must be more probable than its nonexistence.

The trial court instructed the jury about the restaurant's duty of care to Drew in this language:

A restaurant whose employees are reasonably on notice that a customer is in distress and in need of emergency medical attention has a legal duty to come to the assistance of that customer. However, a restaurant does not have a duty to provide medical training to its food service personnel, or medical rescue services to its customers who become ill or injured through no act of omission of the restaurant or its employees. A restaurant in these circumstances meets its legal duty to a customer in distress when it summons medical assistance within a reasonable time.

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