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Failure to Aid: Is a Restaurant Responsible When Diners Choke?

Posted on behalf of Goldberg Finnegan, LLC on Jan 08, 2015 in Negligence

emergency first aid kitChoking is a leading cause of accidental death, especially among children. When a child or an adult is choking, prompt medical attention can mean the difference between life and death. Permanent brain damage can result in less than 10 minutes, and the people around a choking victim must act fast to prevent permanent injury or death.

When choking occurs at a restaurant, should the employees or management of the establishment be required to provide first aid? The family of one Massachusetts man hopes a jury will think so.

Family Dinner Turns Deadly

John Kocak, a 48-year-old Massachusetts man, began choking while he was dining at an Applebees restaurant in 2011. Kocak began choking and ran to the restroom, where he collapsed on the floor. His father found him unconscious a few minutes later.

Kocak's father found an Applebees assistant manager and asked for help, but the manager only directed an employee to call 911. The family alleges that the employee did not inform the dispatcher that Kocak had no pulse or that he had stopped breathing.

When paramedics finally arrived at the restaurant, they were too late. The paramedics cleared Kocak's airway, but he had suffered massive brain injuries due to a lack of oxygen and died several days later.

Kocak's family filed a lawsuit alleging that Applebees and its management were negligent in failing to save Kocak's life. They believe that had the Applebees manager properly informed the 911 operator of the situation, or had the employees been properly trained in first aid, Mr. Kocak could have been saved.

Why State Law Matters in Negligence Deaths

Massachusetts is one of the only states in the country which has a law requiring restaurants that seat over 25 people to have employees trained to perform obstructed airway relief, and to keep a device in the restaurant which can clear food from the airway. The training costs about $25 per person, and there must be someone on the premises at all times with that training.

Kocak's family is using this law to hold Applebees responsible for his death. In many other states, including Maryland, there is no such law, and it would likely be more difficult to prove that the Applebees was negligent. The Massachusetts law creates a duty for restaurant management to have people and first aid devices on site at all times without this statutory duty, it may be more difficult to prove that the restaurant was negligent.

In general, a restaurants staff has a duty to assist its customers and seek medical attention. This does not mean that the restaurant has a responsibility to provide first aid comparable to what paramedics or a doctor would provide. Usually, a restaurants duty to its customers is satisfied by calling 911.

Many states require some type of first aid training or equipment in restaurants, though few have laws as comprehensive as the one in Massachusetts. For example, Maryland state law requires that food service facilities, or places which prepare food and provide seating for patrons, post a diagram or poster educating workers on basic first aid techniques, including the Heimlich maneuver or other ways to prevent choking. Unlike Massachusetts, there is no requirement that employees be trained in first aid, so these posters may be the only information a restaurant has on hand to help in an emergency.

In general, a restaurants staff has a duty to assist its customers and seek medical attention. This does not mean that the restaurant has a responsibility to provide first aid comparable to what paramedics or a doctor would provide. Usually, a restaurants duty to its customers is satisfied by calling 911.

If an employee does attempt first aid using the techniques on the restaurants poster, he or she is usually protected from personal lawsuits if the attempts to render first aid are ineffective. Unless a restaurants managers or employees are grossly negligent, meaning seriously reckless or careless, then it may be difficult to hold a restaurant legally responsible for a death or injury resulting from a diner choking.  

If the Kocak family can prove that Applebees had a duty to provide first aid to Mr. Kocak, or were negligent in failing to give all of the important information to the 911 dispatcher, and can also show that the restaurants failure to do these things caused his death, then the Kocak family may be able to recover compensation from the restaurant to pay for his medical bills, funeral expenses, and the family's pain and suffering.

Goldberg Finnegan: Holding Negligent Parties Responsible

Holding a company or corporation like a restaurant chain responsible for negligence requires the assistance of a skilled personal injury attorney like those at Goldberg Finnegan. Our injury lawyers understand complex problems in the law, and will work with your family to get justice for the injuries caused by someone else's negligence.

If you or your loved one has been injured, call (888) 213-8140 or use our case evaluation form to set up your free consultation today.

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