No assistance from restaurant staff when choking?

by Mary
(La Habra, CA)

Sunday morning (May 3, 2015) I was at IHOP with my sister and my niece. When my breakfast had been served, I noticed that the sausage looked odd. I sent the plate back to have them cook it more. Immediately after tasting the sausage, I started to cough and my throat began to close, which made it hard to breathe. I left the table and desperately tried to get help.

I was afraid I help would not get there in time. By this time my niece ran to me, believing I was chocking. The staff stood watching and did nothing. My face had turned red and I felt I was passing out. My niece asked them to bring me a glass of water and along with the water, out of the kitchen, came more staff to watch the whole ordeal.

One of the customers who had being sitting nearby, came to where I was, to see if he could help. The customer performed the Heimlich maneuver on me and my throat opened up. At this point my niece grabbed a nearby waitress and had her call 911. I remember the waitress asking over and over if I was sure that I wanted her to call 911.

I remember after the customer had returned to his seat hearing another waitress say, "You guys have to sit down now." The fire department and the paramedics arrived. My blood pressure had shot up to 138 (normal for me is a low 112-119). I was taken to Torrance Memorial, ER. My niece later told me that when they were waiting to pay the bill that no manger had come out to represent IHOP.

On Monday (May 4th) I spoke with corporate offices of IHOP who apologized and gave me a case number and promised someone would get in touch with me. On Tuesday, May 5th, I spoke with someone from corporate. He apologized for what had taken place in one of his restaurants. He told me that my account of what took place would be their reality. He assured me that a detailed, internal investigation would take place.

I requested a copy of the report but was denied. Instead, he offered me a gift card and assured me that they would do all they could to see that this would never happen to anyone else. That same day, I spoke with Corporate Risk Management, who also apologized and offered to send me a gift card.

Because IHOP failed to act quickly and secure my safety, my ribs were bruised because of the Heimlich maneuver. I have a phobia of eating spicy food. Four days later, it’s still painful to sleep on my side. I find myself checking to make sure I can breath. What can be done about this? Shouldn't IHOP pay for my medical bill and not just give me a gift card? Thank you.

Visitor Question:
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ANSWER for "No assistance from restaurant staff when choking?":

Mary (La Habra, CA):

While the facts you present are inclusive, in them we are unable to find a reason your throat began to close. Moreover, there is no evidence the sausage served by IHOP was tainted, or unfit for eating. You sent the sausage back because you believed it was under cooked. Yet when the sausage was re-served you apparently believed it was fit for your consumption.

The only injuries you sustained were bruised ribs. The bruises were inflicted by a customer, and not an employee from IHOP.

While the IHOP corporate personnel stated they would undertake an investigation, and apologized for what happened at one of their restaurants, the statements weren't an admission of liability resulting from the restaurant or it's employees.

Your phobia of eating spicy food is not actionable. To prove the restaurant's action or inaction was the proximate cause of your phobia will require a medical or psychological narrative verifying the connection. Without one, your phobia will be legally unsupportable.

In short, IHOP should not be made to pay for your medical bills because, from the facts you present, there is no evidence the restaurant or it's employees were negligent.

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from an attorney licensed in your state. Find a local attorney to give you a free case review here, or call (888) 647-2490.

Best of luck,

Judge Calisi

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