Large Retailers Need Not Have Defibrillators

Wednesday, October 29, 2014

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Large Retailers Need Not Have Defibrillators—Court

From Staff and Wire Service Reports

Large retailers aren’t required by California law to have defibrillators on hand to help treat customers who suffer sudden cardiac arrest, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The ruling was expected, since the California Supreme Court unanimously reached the same conclusion in June, in Verdugo v. Target Corp. (2014) 59 Cal. 4th 312 after the Ninth Circuit certified the question.

“We said that we would follow the California Supreme Court’s guidance…and we do,” the court said in a per curiam opinion. “The district court’s ruling that Target had no common law duty to provide an AED in its store is consistent with the California Supreme Court’s answer to the certified question….”

Chief Justice Tani Cantil-Sakauye, had acknowledged in the state high court’s opinion 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.”

The Ninth Circuit had 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.

But Oregon is the only state that requires large retailers to have 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.

Cantil-Sakauye analogized to a line of cases limiting the duty of business owners to protect their patrons from third-party criminal attacks.

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 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.

The Ninth Circuit panel consisted of Judges Harry Pregerson, Susan P. Graber, and Marsha S. Berzon. Pregerson wrote separately to say that he hoped “big box stores like Target will, at the very least, recognize their moral obligation to make AEDs available for use in a medical emergency.”

Pregerson also urged the California Legislature to consider taking action on this issue.

“I believe that AEDs should be considered first aid,” Pregerson wrote. “They are crucial to the survival of sudden cardiac arrest victims. They are inexpensive, nearly foolproof, and are necessary when, as happened here, paramedics cannot reach a victim in time to save the person’s life. I believe that AEDs should be as common as first aid kits, and that big box stores like Target should be required to make them available to their customers who suffer sudden cardiac arrest.”

He added:

“If Oregon can require businesses such as big box stores to provide this minimally burdensome, yet life-saving equipment, so too can California, a leader in consumer protection.”

The case is Verdugo v. Target Corporation, 10-57008.