Large Retailers Need Not Have Defibrillators on Hand

Tuesday, June 24, 2014

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Large Retailers Need Not Have Defibrillators on Hand—S.C.

From Staff and Wire Service Reports

The California Supreme Court yesterday unanimously ruled that large retailers aren’t required to have defibrillators on hand to help treat customers who suffer sudden cardiac arrest.

Chief Justice Tani Cantil-Sakauye, writing for the court, acknowledged that automated external defibrillators, or AEDs, can save numerous lives at a relatively small cost. But “generally applicable principles and limitations regarding the existence of a common law duty that are embodied in past California decisions do not support recognition of such a common law duty,” she wrote, so any requirement that businesses have them available must come from the Legislature.

Lawmakers, she said, are “generally in the best position to examine, evaluate and resolve the public policy considerations relevant to the duty question.”

Certified Question

The court reached that conclusion in response to a certified question from the Ninth U.S. Circuit Court of Appeals, which asked for the state court’s assistance in resolving an appeal from the dismissal of a suit by the family of a woman who collapsed and died at Target in Pico Rivera.

Mary Ann Verdugo’s mother and brother, who were with her when the 49-year-old was stricken in 2008, alleged that the death was reasonably foreseeable given that more than 300,000 Americans suffer sudden cardiac arrest each year, and Target has so many customers it should have realized the likelihood that some of those would occur in its stores.

In fact, they noted, Target itself offered AEDs for sale on its website at a price of $1,200.

Sudden cardiac arrest is caused by a problem with the heart’s electrical impulses, causing it to stop pumping blood. Unlike a myocardial infarction, more commonly referred to as a heart attack, sudden cardiac arrest often strikes with no prior symptoms and can strike a heart that is otherwise healthy. The American Heart Association says the quick use of a defibrillator, which is designed to be used by a layperson if necessary and delivers an electric impulse that can restart the pumping of blood, can increase survival rates from 8 percent to 30 percent.

For two decades, an increasing number of public places in the U.S. have been required to have automated external defibrillators on hand, including government buildings, airports and many other public places. In that time, defibrillators have become cheaper to buy and easier to use.

All 50 states and the federal government have laws requiring various entities to have the devices in place, beginning with a Florida law passed in 1997.

Oregon is the only state that requires large retailers to have defibrillators, and courts in at least four states have previously declined to extend such a requirement as a matter of common law. California offers a qualified statutory immunity to laypersons who use the devices in good faith, and to business owners and landlords who keep them on hand, but the only non-medical facilities where a defibrillator must be available are health studios.

Third Party Cases

Cantil-Sakauye analogized to a line of cases limiting the duty of business owners to protect their patrons from third-party criminal attacks, including Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666.

The court there held that the owner of a shopping plaza had no duty to provide security guards who might have prevented the rape of an employee of one of the stores.

The costly burden of providing such guards, measured against the very low foreseeability of the rape—there had been some burglaries and purse snatchings at the center, but no prior sexual assaults—was held to require a conclusion that no such duty existed.

Requiring large retailers to carry AEDs “would impose considerably more than a minor or minimal burden,” the chief justice wrote, well beyond the purchase price. The devices would have to be installed, employees would have to be trained in their use, decisions would have to be made as to how many to have in a particular store and where to put them, they would have to be maintained, and store management would have to keep track of which employees had been trained and figure that into its staffing decisions, Cantil-Sakauye noted.

There was no showing, she added, that a person was any more likely to suffer sudden cardiac arrest at a “big-box store” than anywhere else, or that a person stricken at such a store has smaller odds of survival than if they were to be afflicted elsewhere.

Justices Marvin Baxter, Carol Corrigan, Ming Chin, and Goodwin Liu, and Third District Court of Appeal Justice George Nicholson, sitting on assignment, joined in the opinion.

Justice Kathryn Werdegar wrote separately, concurring in the result but rejecting the analogy to Ann M. and similar cases on liability for third party attacks.

The proper basis for ruling in favor of the defendants, she argued, is Rowland v. Christian (1968) 69 Cal.2d 108. That case elucidated the factors that must be looked at to determine whether a duty will be imposed as a matter of public policy—foreseeability of harm, degree of certainty of injury, closeness of causal connection between the injury and the breach of alleged duty, the moral blameworthiness of the conduct, the extent to which imposition of duty would prevent future harm, the burden on the defendant and the community if the duty is imposed, and the cost and availability of insurance.

The case is Verdugo v. Target Corporation, 14 S.O.S. 3131.