Reference no: EM13468612

Pamela Smart-Davenport choked on an olive while drinking a martini at a restaurant called "Olives." An investigation shows that Pamela Smart-Davenport had taken a large dosage of pain killers before she arrived at the restaurant and was slurring her words when she demanded a second drink with extra olives. After taking a few sips of the new martini, Pamela Smart-Davenport gasped and slumped over in her chair. A customer screamed, and the manager ran over to the fallen customer. The manager checked her vital signs and noted that she was not breathing and was blue in the face. The manager did not know what to do since he had no medical training. At no time, did the manager check to see if anything was lodged in the poor woman's throat. Instead, the manager called-out for help among the patrons in the restaurant. He yelled over and over again that a woman in the restaurant was not breathing and needed help. He asked if anyone was a doctor but no one responded. No one stepped forward, and Ms. Smart-Davenport was deprived of a significant loss of oxygen to her brain and is now in a coma.

You will not believe this, but an investigation has revealed that Dr. Moses, the brother of Pamela Smart-Davenport, was actually eating in the restaurant at the time. When questioned by the police as to why the physician did not help his sister, Dr. Moses stated that he was preoccupied with other matters and never bothered to look over to see that the choking victim was his sister. After all, he asserts he was not in his office and had no obligation to intervene. He feels badly for his sister and would have helped if he realized that his sister was the victim.

The children of Pamela Smart-Davenport are upset over the incident and have sued the restaurant, claiming that the manager was negligent and did not use reasonable care to save the customer. It is asserted that the manager should have done more than just yell for help. For instance, he could have checked the lady's mouth to make sure that nothing was lodged in the customer's throat such as an olive. Dr. Moses was also sued for negligence on the theory that the doctor owed a duty to help his sister especially because of the emergency that was presented.

Please discuss the issues and defenses on behalf of all parties. Will the family of Pamela Smart-Davenport be successful in recovering money from the restaurant and her brother?