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California Supreme Court Decides Business Owner Does Not Have A Duty To Have External Defibrillator

Verdugo v. Target Corp.

The California Supreme Court issued an opinion in Verdugo v. Target Corp. (June 23, 2014, S207313) ___ Cal.4th ___ , analyzing whether “the common law duty of reasonable care that common law duty of care to its customers does not include a duty to acquire and make available an AED for use in a medical emergency.” (Ibid.)

Mary Ann Verdugo (“Verdugo”) was shopping at a Target department store with her mother and brother when she suffered a heart attack. It took paramedics several minutes to reach the store and additional time to reach Verdugo inside Target. Paramedics were unable to revive her. Verdugo’s mother and brother (“plaintiffs”) sued Target Corporation alleging that Target breached the duty of care it owed Verdugo by failing to have an AED in its department store. Plaintiffs claimed that “in view of the large number of persons (300,000) in this country who suffer an unanticipated sudden cardiac arrest each year, and the large number of customers who shop in Target’s department stores, it was reasonably foreseeable that a patron might suffer such an attack in its store, and because of the size of the store, Target should have known that it would take emergency medical personal many minutes to reach a sudden cardiac arrest victim, making an onsite AED a medical necessity.” (Slip opn., p. 3.) Target removed the proceedings from the Los Angeles County Superior Court to the federal district court, which granted Target’s motion to dismiss. (Id. at p. 4.)

Plaintiffs appealed “arguing the federal appellate court should recognize that duty to provide an AED does exist under California common law.” In the alternative, plaintiffs requested the appellate court to certify the question to the California Supreme Court. The Ninth Circuit Court of Appeals granted plaintiffs’ certification request. (Slip opn., p. 4.) At the request of the Ninth Circuit, the California Supreme Court addressed two issues: (1) whether existing California statutes relating to the acquisition and use of AEDs preclude the court from determining whether such a duty should be recognized under California law; and (2) whether a business owner owes a duty to its customers to acquire and make available an AED for use in a medical emergency. (Id. at pp. 1-2.)

The Supreme Court first determined that California statutes relating to AEDs do not preclude courts from determining whether a business owner’s common law duty of care to its patrons includes an obligation to provide an AED for use in an emergency. “It is well established under California law that a business establishment’s legal obligations to its customers and others may arise not only from the Legislature’s enactment of a statutory provision but also, alternatively, under the common law.” (Slip opn., pp. 14-15.) The Supreme Court concluded that “the current California AED statutes do not constitute the type of ‘so as to indicate that the Legislature intended the statutes to totally supersede and preclude any operation of general common law tort principles with regard to the acquisition and provision of AEDs.” (Id. at p. 25, additional quotations omitted, italics in original.)

Further, the Supreme Court analyzed whether Target breached its duty by failing to take precautionary steps prior to Verdugo’s injury. (Slip opn., p. 31.) In evaluating Target’s duty to provide precautionary measures, the Supreme Court considered two primary factors: (1) the degree of foreseeability that its patrons will suffer a sudden cardiac arrest on its premises, and (2) the relative burden that providing an AED will place upon the business. (Id. at pp. 31-35.) With respect to the question of foreseeability, the Supreme Court determined that no aspect of Target’s operations or activities that Target’s patrons engage in on its premises indicate a high degree of foreseeability that its patrons will suffer sudden cardiac arrest on its premises. (Id. at p. 35.) “Instead, it appears that the risk of such occurrence is no greater at Target than at any other location open to the public.” (Id. at p. 36.) Further, “a general common law duty to acquire and make available an AED for the use of its patrons would impose considerably more than a minor or minimal burden on a business establishment.” (Id. at p. 34.) Without a showing of heightened foreseeability, “the policy decision whether a particular type of business (or businesses in general) should be required to provide a costly or burdensome precautionary safety measure for use in the event of a possible medical emergency resulting from a patron’s medical condition is appropriately made by the Legislature, rather than by a jury on a case-by-case basis guided only by a general, unfocused ‘reasonable care’ standard after a medical emergency has already occurred.” (Id. at p. 33.) Accordingly, the Supreme Court concluded that “light of the extent of the burden that would be imposed by a requirement to acquire and make available an AED and in the absence of any showing of heightened foreseeability of sudden cardiac arrest or of an increased risk of death, . . . under California law, Target owes no common law duty to its customers to acquire and make available an AED.” (Id. at p. 35.)

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