This section contains the nature of the case and procedural background.

Eddie Drew and Ted Gonzales drove 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 D's restaurant about 1:30 a.m., July 5, where they continued to drink while waiting for a table and after they were seated. Eddie started choking after only a few bites of his meal. Gonzales' testimony about his reaction to the 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 simply asked three or four times for a cloth to wipe Eddie'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 the choking, a threat was made to Gonzales that the police would be called, and Gonzales said to call them. Gonzales talked to waitresses, the cashier, and the cook. It is not clear how many times Gonzales asked these employees for help, or in what order, but he did ask more than once. Gonzales eventually asked customers 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. It is not clear from the record how long the wait was for an ambulance to be called or who made the call. 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 Eddie. 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, Eddie was pronounced dead at 5:51 p.m. P filed a wrongful death action against D alleging that her thirty-seven year old son, Eddie, died on July 5, 1986, because of D's negligence in failing to render first aid and summon emergency help after restaurant employees knew or had reason to know that Eddie was in imminent need of medical attention. D moved for summary judgment, contending that as a matter of law it 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 D partial summary judgment, holding that it did not owe its customer a duty to render first aid until emergency medical help arrived. The trial court instructed the jury that the D owed its customer a duty to summon medical assistance within a reasonable 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 for D. P appealed. P argues that the Restatement (Second) of Torts § 314A is the appropriate rule of law. She claims that a customer who becomes ill or injured inside a business establishment is virtually in the custodial care of those persons operating the business. She asserts that the business invitor-invitee relationship is a special relationship that gives rise to a duty on the invitor's part to render first aid to the invitee.

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