Breaux v. Gino's, Inc.

[381]

Opinion

BARRY-DEAL, J.

McNeal Breaux, Sr., appeals from a summary judgment for respondent Gino’s, Inc., in his action for the wrongful death of his wife.

1

We affirm.

The undisputed facts are that the decedent choked while eating at a restaurant owned and operated by respondent. An assistant manager of the restaurant called for an ambulance as soon as he became aware that decedent was in distress. No one attempted to give first aid to decedent, who was alive when the ambulance arrived.

It is also undisputed that respondent complied with the provisions of Health and Safety Code section 28689

2

by posting in an appropriate place the state-approved first aid instructions for removal of food which may become stuck in a person’s throat.

Appellant contends that summary judgment was improperly granted because the case presented a triable issue of fact as to whether the damage he suffered was the foreseeable result of respondent’s negligence. Respondent concedes that it had a legal duty to render assistance to decedent, but argues that it met its duty, as a matter of law, when it promptly summoned an ambulance. We conclude that respondent’s contention is correct.

[382]

It is well established that restaurants have a legal duty to come to the assistance of their customers who become ill or need medical attention and that they are liable if they fail to act. Thus, in the traditional language of the law of torts, they are liable for nonfeasance as well as misfeasance.

(People

v.