PER CURIAM:
Mary Ann Verdugo was shopping with her mother and brother in a Pico Rivera, California, Target when she experienced sudden cardiac arrest. There was no Automatic External Defibrillator ("AED") in the store, and by the time paramedics arrived, Verdugo had died. Verdugo's family sued Target, alleging that as a commercial property owner, Target had a common law duty to maintain an AED onsite. Ruling that Target had no such duty, the district court dismissed the Verdugos' claim. The Verdugos appealed to this court.
We determined that California law did not clearly answer the question whether Target was required to have AEDs in its stores and viewed "the California Supreme Court [as] better positioned to address [this] major question[] of California tort law than this court." Verdugo v. Target Corp., 704 F.3d 1044, 1046 (9th Cir.2012). Accordingly, we certified a question to the California Supreme Court pursuant to Rule 8.548 of the California Rules of Court. Id. at 1045. That court construed the certified question as follows: "[W]hether, under California law, the common law duty of reasonable care that defendant Target Corporation (Target) owes to its business customers includes an obligation to obtain and make available on its business premises an automated (or automatic) external defribrillator (AED) for use in a medical emergency." Verdugo v. Target Corp., 59 Cal.4th 312, 316, 173 Cal.Rptr.3d 662, 327 P.3d 774 (2014).
The California Supreme Court has answered the restated certified question as follows: "[U]nder California law, Target's 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." Id. at 317, 173 Cal.Rptr.3d 662,
PREGERSON, Circuit Judge, writing separately:
The California Supreme Court has spoken. This decision holds that "under California law, Target's 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." Verdugo v. Target Corp., 59 Cal.4th 312, 317, 173 Cal.Rptr.3d 662, 327 P.3d 774 (2014). And so, in this diversity case, that holding controls. But that decision troubles me. Therefore, I write separately hoping that big box stores like Target will, at the very least, recognize their moral obligation to make AEDs available for use in a medical emergency. Should that not come to pass, I hope that our California Legislature takes a hard look at this issue and considers a statutory standard of care that will protect consumers by requiring big box stores to make life-saving AEDs available.
Stores like Target have a "special relationship" with their business invitees. This special relationship creates an affirmative duty that requires a business to provide first aid to invitees who become ill or injured on the premises, and "to care for them until they can be cared for by others." Restatement (Second) of Torts § 314A. I believe that AEDs should be considered first aid. 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.
About 360,000 Americans are treated by emergency medical services for sudden cardiac arrest before reaching a hospital. See Verdugo, 59 Cal.4th at 319, 173 Cal.Rptr.3d 662, 327 P.3d 774. "Less than 10 percent of those victims survive." Id. Victims of sudden cardiac arrest collapse and quickly lose consciousness — often without warning. Sudden cardiac arrest is treatable, but time is of the essence when the life of a sudden cardiac arrest victim is in the balance: "every minute that passes before returning the heart to a normal rhythm decreases the chance of survival by 10 percent." See Cardiac Arrest Survival Act of 2000, Pub.L. No. 106-505, § 402(5), 114 Stat. 2314 (2000).
There is good reason for big box stores like Target to be equipped with AEDs: they save lives. The high percentage of death due to sudden cardiac arrest can be reduced by the quick use of a defibrillator. When "CPR and AEDs are used within three to five minutes from the onset of collapse, the survival rate of a sudden cardiac arrest victim is as high as 50 to 70 percent." Automatic External Defibrillators: Hearing on S.B. 1436 Before the S. Comm. on Health, 2011-2012 Reg. Sess. 1-2 (Cal.2012). Yet, big box stores like Target are currently not required by the State of California to have available these life-saving devices for their patrons. But big box stores are not prevented from making a voluntary choice to do so.
Not only is the use of an AED the most effective way to reduce death due to sudden
Moreover, modern AEDs are nearly foolproof even without training. One study in Circulation, the American Heart Association journal, showed that untrained sixth graders safely and properly used AEDs and took only slightly longer than emergency-trained personnel to deliver the defibrillator shock. See John W. Gundry et al., Comparison of Naive Sixth-Grade Children with Trained Professionals in the Use of an Automated External Defibrillator, 100 Circulation 1703 (1999). Because little training is involved, and many of the devices provide audio step-by-step instructions, it would not be difficult for big box stores to provide the minimum training required to qualify for immunity from liability under California law. See Cal. Health & Safety Code § 1797.196.
Big box stores in particular should be required to equip their stores with AEDs. The sheer size of these stores increases the time for paramedics to reach a sudden cardiac arrest victim, making quick access to an AED of paramount importance. Mary Ann Verdugo died in the Pico Rivera Target store in part because the paramedics could not get to her inside the store in time to administer an AED. It is obvious why paramedics would have a hard time getting to the Target location and navigating inside the store within the five minute time window — the average size of a Target store is 135,000 square feet. See Press Release, Target Corporation, Target to Open TargetExpress Small-Format Store in San Diego (Sept. 18, 2014), available at http://pressroom.target.com/news/target-to-open-targetexpress-small-format-store-in-san-diego (last visited Oct. 16, 2014). Thus, if another customer suffers sudden cardiac arrest in a big box store like Target, the probability of her survival falls significantly if there is no access to a defibrillator in the store.
Many states, including California, have examined this issue and developed public policies promoting AED use, including expanding civil immunity to businesses that have installed AEDs and meet certain statutory requirements. See Kevin M. Rodkey, Medical Technology Meets the Maryland General Assembly: A Case Study in Handling Advances in Automated External Defibrillator Technology, 12 J. Health Care L. & Pol'y 81 (2009). However, California's immunity statute does not require businesses to install and maintain AEDs, despite all the reasons why AEDs are crucial first aid equipment for sudden cardiac arrest victims.
Yet at least one state — Oregon — has enacted a statute that requires big box stores to have an AED. The Oregon statute provides that a "place of public assembly," meaning "a single building that has 50,000 square feet or more of indoor floor space and where ... [t]he public congregates for purposes such as ... shopping, ... [and a]t least 50 individuals congregate on a normal business day" is required to "have on the premises at least one [AED]." ORS § 431.690. Upon enacting the law, one Oregon State Senator called AEDs "the fire extinguishers of the 21st century — the sooner more are available in public places, the more lives we can save." News Release, Senate Majority Office, Expanded
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. I implore the California Legislature to consider this issue. I also hope that Target and other big box retailers will uphold their moral obligation to ensure the health and safety of their customers by voluntarily installing AEDs in their stores.
MICHAEL VERDUGO et al., Plaintiffs and Appellants,
v.
TARGET CORPORATION, Defendant and Respondent.
S207313
Ninth Cir. U.S. Ct. App. No. 10-57008
U.S. Dist. Ct. No. 2:10-cv-06930-ODW-AJW
At the request of a three-judge panel of the United States Court of Appeals for the Ninth Circuit, we agreed to address a question of state law that is potentially determinative of an appeal now pending before that federal appellate court. (Cal. Rules of Court, rule 8.548.) The question, as reformulated and narrowed to conform to the facts of the pending appeal, is whether, under California law, the common law duty of reasonable care that defendant Target Corporation (Target) owes to its business customers includes an obligation to obtain and make available on its business premises an automated (or automatic) external defibrillator (AED) for use in a medical emergency.
Target maintains that recognition of a common law duty on its part to acquire and make available an AED for the use of its customers is inappropriate for two reasons. First, Target asserts that existing California statutes relating to the acquisition and use of AEDs preclude recognition of such a common law duty, either because one of the statutory provisions explicitly bars such a requirement or because the AED statutes as a whole "occupy the field" of AED regulation and thus implicitly foreclose California courts from recognizing such a common law duty. Second, Target argues that even if existing California AED statutes do not prohibit recognition of such a common law duty, generally applicable principles relating to the scope of a business's common law duty to its customers, set forth in governing California
For the reasons discussed hereafter, we conclude that existing California statutes relating to the acquisition and use of AEDs do not preclude this court from determining whether such a duty should be recognized under California common law, but that 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. Accordingly, we conclude that, under California law, Target's 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.
On August 31, 2008, Mary Ann Verdugo was shopping at a large Target department store in Pico Rivera, California, with her mother and brother when she suffered a sudden cardiac arrest and collapsed. In response to a 911 call, paramedics were dispatched from a nearby fire station. It took the paramedics several minutes to reach the store and a few additional minutes to reach Verdugo inside the store. The paramedics attempted to revive Verdugo but were unable to do so; Verdugo was 49 years of age at the time of her death. Target did not have an AED in its store.
After the incident, Verdugo's mother and brother (hereafter plaintiffs) filed the underlying lawsuit against Target, maintaining that Target breached the duty of care that it owed to Verdugo, a business customer, by failing to have on hand within its department store an AED for use in a medical emergency. Plaintiffs' first amended complaint alleged that an AED was an essential element of the life-saving first aid that Target was assertedly obligated to provide to its patrons. The complaint contended 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 that because of the size of the store Target should have known that it would take emergency medical personnel many minutes to reach a sudden cardiac arrest victim, making an onsite AED a medical necessity. Further, the complaint noted that AEDs are relatively inexpensive and that, in fact, Target itself sold AEDs over the Internet for approximately $1,200. The complaint maintained that "[t]he inexpensive availability of AEDs and their ease of use with even minimal or no advance training have led to on-site CPR [cardiopulmonary resuscitation] and AED assistance to now be an expected part of first aid response." Asserting that Target's failure to provide an AED was a substantial cause of Verdugo's death, plaintiffs sought to recover damages from Target.
Plaintiffs filed their initial complaint in the Los Angeles County Superior Court, but Target removed the proceeding to federal district court. Thereafter, Target filed a motion to dismiss the matter on the ground that the complaint failed to state a cause of action. (Fed. Rules Civ. Proc., rule 12(b)(6), 28 U.S.C.) After briefing, the federal district court granted Target's motion, concluding that Target had no duty to acquire and make available an AED for the use of its customers. Plaintiffs appealed to the Ninth Circuit Court of Appeals, arguing that the federal appellate court should recognize that a duty to provide an
In response to the Ninth Circuit's request, we agreed to address the state law issue presented by the pending appeal. We have received extensive briefing in this matter, both by the parties and by numerous amici curiae, some supporting plaintiffs and others supporting defendant Target.
To place the issue before us in perspective, it is useful at the outset to briefly describe the nature and scope of the health problem posed by sudden cardiac arrest and the development of AEDs as one important tool for addressing this problem. Thereafter, we describe the current California statutes relating to AEDs. (Post, pt. III.)
In a 2013 publication, the American Heart Association stated that "Cardiac arrest is a leading cause of death in the United States. Each year, emergency medical services (EMS) treats about 360,000 victims of cardiac arrest before they reach the hospital. Less than 10 percent of those victims survive. Cardiac arrest can happen to anyone at any time...." (Amer. Heart Assn., Implementing an AED Program (July 2013) p. 3 [corporate training] <http://www.heart.org/cpr> [as of OPN FILE DATE].) The publication explained: "Cardiac arrest is the abrupt loss of heart function in a person who may or may not have heart disease. The time and mode of death are unexpected. Cardiac arrest occurs instantly or shortly after symptoms appear. [¶] Most cardiac arrests are due to abnormal heart rhythms called arrhythmias. A common arrhythmia is ventricular fibrillation, in which the heart's electrical impulses suddenly become chaotic and ineffective. Blood flow to the brain stops abruptly; the victim then collapses and quickly loses consciousness. Death usually follows unless a normal heart rhythm is restored within minutes." (Ibid.)
The publication further explained: "Defibrillation is a process in which an electronic device gives an electrical shock to the heart. Defibrillation stops ventricular fibrillation by using an electrical shock and allows the return of a normal heart rhythm. A victim's chance of survival decreases by 7 to 10 percent for every minute
Beginning in the 1990s, small portable defibrillators, called automated or automatic external defibrillators, became commercially available. As described in another American Heart Association publication, "AEDs are highly accurate, user-friendly computerized devices with voice and audio prompts that guide the user through the critical steps of operation. AEDs were designed for use by lay rescuers and first responders to reduce time to defibrillation for victims of [ventricular fibrillation] sudden cardiac arrest. The rescuer turns the AED on and attaches it to the victim with adhesive electrodes or pads. The AED records and analyzes the victim's cardiac rhythm. If a shock is indicated, the AED charges to the appropriate energy level and prompts the rescuer to deliver a shock. If the device is fully automated and a shock is indicated, the AED can deliver a shock without further action by the rescuer." (Amer. Heart Assn., Community Lay Rescuer Automated External Defibrillation Programs (2006) 113 Circulation 1260, 1261, fn. omitted (Community AED Programs) <http://circ.ahajournals.org/content/113/9/1260.full> [as of OPN FILE DATE].)
In the mid-1990s, the American Heart Association began a national public health initiative to educate the public and lawmakers regarding the significant problem posed by sudden cardiac arrest and to promote increased acquisition and use of AEDs by nonmedical entities. The initiative included the drafting of model so-called Good Samaritan AED legislation that would grant legal immunity under specified circumstances to nonmedical entities and individuals who acquired, made available, or used AEDs for emergency care. The American Heart Association AED initiative proved very successful. Between 1995 and 2000, all 50 states passed laws and regulations related to lay rescuer AED programs. (Community AED Programs, supra, 113 Circulation at p. 1261.) Since 2000, most states have revisited their initial AED statutes and regulations, seeking to continue to reduce legal impediments to the voluntary acquisition and use of AEDs and, in some instances, mandating the provision of AEDs in specified settings. (See Nat. Conf. of State Legislatures, State Laws on Cardiac
The initial California statutory provisions relating specifically to the use of AEDs in nonmedical settings were enacted in 1999, in apparent response to the American Heart Association's nationwide campaign. The 1999 legislation added two statutory provisions relating to AEDs — Civil Code section 1714.21 and Health and Safety Code section 1797.196. (Stats.1999, ch. 163, §§ 1-3, pp.2069-2070.) These two statutes have been amended several times since 1999 and continue to constitute the primary, generally applicable California statutes relating to AEDs.
Civil Code section 1714.21 is one of a number of California Good Samaritan statutes that, in order to encourage individuals or entities to gratuitously undertake conduct or activities for the benefit of others, grant immunity from potential civil liability under specified circumstances.
In addition to setting forth the requirements that an acquirer of an AED must satisfy in order to obtain immunity from liability under Civil Code section 1714.21, Health and Safety Code section 1797.196 contains a separate subdivision — subdivision (f) — upon which defendant Target heavily relies in this case in maintaining that courts are precluded from determining whether California common law imposes upon Target a duty to acquire and make available an AED for use in a medical emergency. Section 1797.196, subdivision (f), provides in full: "Nothing in this section or Section 1714.21 of the Civil Code may be construed to require a building owner or a building manager to acquire and have installed an AED in any building." We discuss Target's legal argument relating to section 1797.196, subdivision (f), below. (See pt. IV.A., post.)
In addition to the provisions of Civil Code section 1714.21 and Health and Safety Code section 1797.196 relating generally to the circumstances in which a nonmedical user or acquirer of an AED is immune from civil liability for any damage resulting from the use of an AED, California has enacted a specific statute relating to the particular obligations of health (or fitness) studios regarding AEDs.
Health and Safety Code section 104113, initially enacted in 2005 (Stats.2005, ch. 431, § 1, pp. 3552-3554), requires every "health studio" to acquire and maintain an AED and to train personnel on the use of AEDs.
Health studios are currently the only nonmedical setting in which California statutes or regulations require that AEDs be provided.
In addition to the foregoing statutes, California has enacted a statutory provision relating to the placement of AEDs in state-owned and state-leased buildings.
Government Code section 8455, enacted in 2004, directs the California Department of General Services to "apply for federal funds ... for the purchase of automated external defibrillators to be located within state-owned and leased buildings" (§ 8455, subd. (a))
Pursuant to this provision, AEDs have been installed in many state-owned and leased buildings throughout California.
As already noted, Target argues that current California statutes preclude recognition of a common law duty to provide an AED on two separate theories: first, that the statutes explicitly preclude recognition of a common law requirement to provide an AED, or, alternatively, that the current California statutes should be viewed as entirely "occupying the field" of AED regulation and thus implicitly preclude such a common law requirement. We discuss each of these separate theories in turn.
Target initially contends that the Legislature's enactment of Health and Safety Code section 1797.196, subdivision (f), explicitly precludes recognition of a common law requirement to provide an AED. As explained, we conclude that the provision does not support this contention.
Section 1797.196, subdivision (f) currently reads in full: "Nothing in this section or Section 1714.21 of the Civil Code may be construed to require a building owner or a building manager to acquire and have installed an AED in any building."
Although this provision makes it clear that the legislative enactment of Health and Safety Code section 1797.196 and Civil Code section 1714.21 was not intended, and may not be construed by California courts, to require a building owner or manager to acquire and install an AED in any building, the subdivision in question does not purport to address the separate and distinct question whether, and if so under what circumstances, California common law may embody a duty to acquire and make available an AED as part of the general common law duty of care owed by a business establishment to its patrons or customers. 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. (See, e.g., City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1147, 77 Cal.Rptr.2d 445, 959 P.2d 752; Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal.4th 814, 822-824, 59 Cal.Rptr.2d 756, 927 P.2d 1260; Coulter v. Superior Court (1978) 21 Cal.3d 144, 152-154, 145 Cal.Rptr. 534, 577 P.2d 669.) Under the common law, the existence and scope of an individual's or entity's common law duty of reasonable care is dependent upon a variety of circumstances. (See, e.g., Rowland v. Christian (1968) 69 Cal.2d 108, 113, 70 Cal.Rptr. 97, 443 P.2d 561.)
Past California decisions recognize that "[a]s a general rule, `[u]nless expressly provided, statutes should not be interpreted to alter the common law, and should be construed to avoid conflict with common law rules.'" (California Assn. of Health Facilities v. Department of Health Services (1997) 16 Cal.4th 284, 297, 65 Cal.Rptr.2d 872, 940 P.2d 323.) "Accordingly, `[t]here is a presumption that a statute does not, by implication, repeal the common law. [Citation.] Repeal by implication is recognized only where there is no rational basis for harmonizing two potentially conflicting laws.'" (Ibid.) Although Health and Safety Code section 1797.196, subdivision (f), by its terms, establishes that Health and Safety Code section 1797.196 and Civil Code section 1714.21 themselves should not be interpreted to require building owners or managers to acquire and make available AEDs in their buildings (and thus should not be construed to render the failure to acquire an AED negligence per se pursuant to Evid. Code, § 669), nothing in subdivision (f) states or suggests that it was intended to preclude courts from applying ordinary common law principles in determining whether, either in general or under particular circumstances, a common law duty to provide an AED ought to be recognized.
In other contexts, the Legislature has used much clearer and more explicit statutory language when it has intended entirely to preclude the imposition of liability upon an individual or entity under common
In support of a contrary conclusion, Target relies upon two Court of Appeal decisions — Rotolo v. San Jose Sports & Entertainment, LLC (2007) 151 Cal.App.4th 307, 59 Cal.Rptr.3d 770 (Rotolo) and Breaux v. Gino's, Inc. (1984) 153 Cal.App.3d 379, 200 Cal.Rptr. 260 (Breaux). Although there is language in Rotolo and Breaux supportive of Target's position, the relevant language was not necessary for the decision in either case and, as explained, the result reached in each of those decisions more soundly rests on grounds unrelated to Health and Safety Code section 1797.196, subdivision (f).
In Rotolo, supra, 151 Cal.App.4th 307, 59 Cal.Rptr.3d 770, the parents of a teenager who died as a result of sudden cardiac arrest while participating in an ice hockey game sued the owners of the ice hockey facility where their son died. The facts in Rotolo were particularly tragic because the ice hockey facility in question had in fact acquired an AED, which was located quite close to the spot where the teenager collapsed, but the coaches and other persons who were present during the game were unaware of the AED's location. Emergency
In reaching its conclusion, the Court of Appeal in Rotolo pointed out that under Civil Code section 1714.21, subdivision (d), an entity that acquires an AED for emergency care is not liable for civil damages resulting from any acts or omissions in the use of the AED so long as the entity has complied with the requirements set forth in Health and Safety Code section 1797.196, subdivision (b), and that section 1797.196, subdivision (b), in turn, requires the acquirer (in addition to other conditions) to notify all tenants of the building as to the existence and location of any AED (§ 1797.196, subd. (b)(4)), but imposes no other notification requirements on an acquirer and, in particular, does not require the acquirer of an AED to notify all users of the property of the existence and location of the AED. Because the defendant in Rotolo had acquired an AED and had complied with all the requirements set forth in Health and Safety Code section 1797.196, subdivision (b), the Court of Appeal in Rotolo concluded, properly in our view, that the defendant ice hockey facility was entitled to the immunity afforded by Civil Code section 1714.21, subdivision (d); "imposition of ... duties that are not clearly outlined in the statutes would tend to discourage, rather than to encourage, the voluntary acquisition of AED's, and would thus defeat the underlying legislative purpose of promoting the widespread use of these devices." (Rotolo, supra, 151 Cal.App.4th at p. 314, 59 Cal.Rptr.3d 770.)
Although the appellate court in Rotolo properly ruled in the defendant's favor because the defendant in that case had acquired an AED and had complied with all the prerequisites for civil immunity that the statutes prescribed for entities who acquire an AED, at one point in the course of its opinion the Court of Appeal in Rotolo included the broad statement that "the Legislature has made clear that building owners and managers have no duty in the first instance to acquire and install an AED," citing Health and Safety Code section 1797.196, subdivision (f). (Rotolo, supra, 151 Cal.App.4th at p. 314, 59 Cal.Rptr.3d 770.) That statement was clearly dictum inasmuch as the defendant in Rotolo had voluntarily acquired and installed an AED. In any event, other references in Rotolo to Health and Safety Code section 1797.196, subdivision (f), properly describe that provision as indicating simply that the Legislature, by its enactment of Civil Code section 1714.21 and Health and Safety Code section 1797.196, did not intend to impose such a duty on building owners and managers. (Rotolo, supra, at pp. 320, 324, 59 Cal.Rptr.3d 770.)
Comparable language contained in the Court of Appeal decision in Breaux, supra, 153 Cal.App.3d 379, 200 Cal.Rptr. 260, upon which Target also relies, similarly overstates the effect of the statutory language that was at issue in that case. Breaux was a wrongful death action, brought by a husband whose wife died after choking on food while dining at a restaurant. At the time of the incident in Breaux, the restaurant had posted in an appropriate place state-approved instructions for the removal of food lodged in a person's throat, but no one in the restaurant
In Breaux, supra, 153 Cal.App.3d 379, 200 Cal.Rptr. 260, the husband brought suit against the restaurant, contending that it was negligent in failing to administer appropriate first aid to his wife. The trial court granted summary judgment in favor of the defendant restaurant and, on appeal, the Court of Appeal affirmed in a brief opinion. In its opinion, the court in Breaux recognized that past California decisions had established "that restaurants have a legal duty to come to the assistance of their customers who become ill or need medical attention and that they are liable if they fail to act." (Breaux, supra, at p. 382, 200 Cal.Rptr. 260.) The court in Breaux further observed, however, that "the nature and extent of their duty, i.e., what physical acts restaurants and their personnel are required to perform, has never been decided by a California court" (ibid.), and it went on to conclude that the Legislature had resolved the question of the nature and extent of a restaurant's duty with respect to patrons who have food lodged in their throats through one aspect of a then existing statutory provision relating to that subject.
The statute relied upon by the court in Breaux — Health and Safety Code former section 28689 — required the state department of health to adopt instructions for use in removing food lodged in a person's throat and to supply such instructions to the proprietor of every restaurant in the state. The statute also required the proprietor of every restaurant to post the instructions in a conspicuous place "in order that the instructions may be consulted by anyone attempting to provide relief to a victim in a choking emergency." The statute further stated: "Nothing in this section shall impose any obligation on any person to remove, assist in removing, or attempt to remove food which has become stuck in another person's throat." (Italics added.)
In reaching this conclusion, the court in Breaux, supra, 153 Cal.App.3d 379, 200 Cal.Rptr. 260, failed to consider explicitly the fact that the statutory language on which it relied stated simply that nothing "in this section" shall impose such an obligation (Health & Saf.Code, former § 28689, italics added). The court did not address whether such language purported to preclude a court from determining whether a restaurant's common law duty of reasonable care might include, either in general or in light of a special risk of choking that might be posed by particular foods or the frequency at which such choking may have occurred at the establishment, an obligation to take reasonable steps to attempt to dislodge an obstructing particle of food from a choking customer. As in Rotolo, the result reached by the court in Breaux — affirming summary judgment in favor of the defendant restaurant — may well have been defensible in light of other aspects of former section 28689 that could reasonably have been interpreted as intended to grant immunity from potential civil liability to any restaurant, like the defendant in Breaux, that properly posted the state-supplied instructions in conformance with the statutory requirements.
For the reasons discussed above, we conclude that the language of Health and Safety Code section 1797.196, subdivision (f), cannot properly be interpreted to preclude a court from determining whether a business's common law duty to exercise
As already noted, in addition to relying upon Health and Safety Code section 1797.196, subdivision (f), Target alternatively contends that current California AED statutes, viewed as a whole, "occupy the field" with regard to the regulation of AEDs, and thus implicitly preclude courts from determining whether California common law imposes on a business establishment a duty to acquire or make available an AED for the use of its customers in a medical emergency, either generally or in particular circumstances. As explained, we conclude that current California AED statutes do not support this claim.
As this court observed in I.E. Associates v. Safeco Title Ins. Co. (1985) 39 Cal.3d 281, 285, 216 Cal.Rptr. 438, 702 P.2d 596: "The general rule is that statutes do not supplant the common law unless it appears that the Legislature intended to cover the entire subject or, in other words, to `occupy the field.' [Citations.] `[G]eneral and comprehensive legislation, where course of conduct, parties, things affected, limitations and exceptions are minutely described, indicates a legislative intent that the statute should totally supersede and replace the common law dealing with the subject matter.'"
We conclude that the current California AED statutes do not evince any such legislative intent. The principal general AED statutes — Civil Code section 1714.21 and Health and Safety Code section 1797.196 — set forth the circumstances in which an individual or entity who acquires or uses an AED will be immune from civil liability for damages relating to the use or nonuse of the AED. Those statutes are not incompatible with a common law rule that requires either a particular type of business establishment, or business establishments in general, to acquire an AED for the use of its customers in a medical emergency, because those immunity statutes would fully apply and would afford statutory immunity from civil liability to such a business so long as it complied with the requirements set forth in the statutory provisions. Although the AED immunity statutes were unquestionably enacted to provide an incentive to individuals and entities to voluntarily acquire and make available AEDs for use in an emergency (see Assem. Com. on Judiciary, Analysis of Assem. Bill No.2041 (2001-2002 Reg. Sess.) as amended Apr. 16, 2002), by their terms the statutes apply fully to individuals or entities who acquire and make available AEDs and comply with all of the prerequisites to immunity set forth in the statutes even if such individuals or entities acquire an AED under compulsion of, or in compliance with, a common law duty. The applicability of the immunity statutes to entities who are under a common law duty to acquire and provide an AED would not in any way reduce or undermine the incentive that the immunity statutes provide to persons or entities that voluntarily obtain and make available AEDs.
In addition to the statutory provisions affording civil immunity to those who acquire AEDs under specified circumstances, the Legislature has enacted one statutory provision — Health and Safety Code section 104113 — that requires one category of business establishments — health studios —
Finally, the Legislature's enactment of Government Code section 8455, to encourage and facilitate the placement of AEDs in state-owned and state-leased buildings, is not inconsistent with, and does not even implicate, the question of the scope of a private business's common law duty of care to its customers, and certainly does not evince a legislative intent to preclude California courts from determining the scope of such duty as it relates to the acquisition and provision of AEDs on business premises.
In addition to relying upon the Legislature's enactment of Civil Code section 1714.21, Health and Safety Code sections 1797.196 and 104113, and Government Code section 8455 to support its claim that the current California AED statutes should be viewed as fully "occupying the field" of AED requirements, Target also points to the fact that in 2009 the Legislature passed a bill that would have additionally required golf courses and amusement parks to acquire and install AEDs, but that the Governor vetoed the bill. (Assem. Bill No. 1312 (2009-2010 Reg. Sess.), § 1, passed Sept. 9, 2009, vetoed Oct. 12, 2009.) This legislative action (or inaction), however, no more than the Legislature's enactment of Health and Safety Code section 104113 relating to health studios, does not indicate a legislative intent to preclude California courts from determining, under generally applicable common law principles, whether a common law duty to acquire an AED should properly be recognized for a particular category of business or more generally.
Although, for the reasons discussed above, we conclude that the current California statutes do not preclude courts from determining whether a common law duty to acquire and make available an AED (either in general or in particular circumstances) should be recognized, it should be emphasized that this does not mean that in considering whether such a common law duty should be recognized, courts should not take into account the existing California AED statutes insofar as such statutes bear on the relevant policy considerations that affect that determination. As explained hereafter, in considering whether Target's common law duty of care to its patrons includes a duty to acquire and make available in its stores an AED, the current California AED statutes are relevant and instructive in a number of respects. (See post, pp. 1226-29.)
In analyzing the scope of the common law duty of reasonable care that a business entity owes to its patrons or customers to determine whether that duty includes an obligation to acquire and make available an AED, we begin with the well-established principle, set forth in the governing California cases, that whereas, as a general rule, an individual or entity does not have a duty under the common law to come to the aid of another person whom the individual or entity has not injured (the general no-duty-to-rescue rule; see Rest.2d Torts, § 314, p. 116),
We have no occasion in this case to determine whether a business entity's common law duty to provide assistance to an injured or ill patron never requires a business to do anything more than to promptly summon emergency medical assistance, as Target suggests, or whether a business's common law duty of reasonable care, in some circumstances, may require it to take some additional measures beyond summoning emergency medical assistance. Plaintiffs' claim in this case rests solely on Target's failure to acquire and make available in its department store an AED for use in a medical emergency.
There have been a few California Court of Appeal cases that directly involved the question of a business's common law duty to provide first aid or medical assistance to a patron who is injured or becomes ill on the business's premises. (See, e.g., Rotolo, supra, 151 Cal.App.4th 307, 59 Cal.Rptr.3d 770; Breaux, supra, 153 Cal.App.3d 379, 200 Cal.Rptr. 260.) However, all of the most analogous California common law cases that have reached this court have involved the distinct but related question whether a business has a common law duty to take steps to protect its patrons from criminal activity of third persons that endangers such patrons on its premises. (See, e.g., Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 52 Cal.Rptr. 561, 416 P.2d 793; Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 211 Cal.Rptr. 356, 695 P.2d 653; Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 25 Cal.Rptr.2d 137, 863 P.2d 207 (Ann M.); Kentucky Fried Chicken of Cal., Inc. v. Superior Court, supra, 14 Cal.4th 814,
With respect to third-party criminal conduct, our past decisions have noted a distinction between (1) a business's duty to take precautionary steps, in advance of any specific criminal activity, to provide protections to its patrons against criminal conduct that may occur in the future, and (2) a business's duty to take immediate action in response to ongoing criminal activity that threatens the safety of its patrons. (See, e.g., Delgado, supra, 36 Cal.4th at pp. 240-242, 30 Cal.Rptr.3d 145, 113 P.3d 1159; Morris v. De La Torre (2005) 36 Cal.4th 260, 271, 30 Cal.Rptr.3d 173, 113 P.3d 1182.)
In considering the scope of a business's common law duty to take reasonable steps to protect the health of its patrons while the patrons are on the business's premises, we draw a comparable distinction between (1) a business's common law duty to take precautionary steps prior to the time such an injury or illness has occurred in light of the foreseeability that such an injury or illness may occur, and (2) a business's common law duty to act to assist a patron from an ongoing threat to the patron's health and safety after the patron has experienced an injury or illness on the business's premises.
In the present case, plaintiffs do not claim that Target failed to take adequate steps to protect its patron after she suffered sudden cardiac arrest. Thus, this second aspect of a business's common law duty is not implicated in this case.
Instead, we consider whether Target had a common law duty to take the precautionary step of acquiring and making available an AED in advance of a medical emergency in light of the possibility that such a medical emergency might occur on the business premises sometime in the future.
In evaluating whether a business is under a duty to provide precautionary measures to protect patrons against potential third-party criminal conduct, past California cases generally have looked primarily to a number of factors, including (1) the degree of foreseeability that the danger will arise on the business's premises and (2) the relative burden that providing a particular precautionary measure will place upon the business. (See, e.g., Ann M., supra, 6 Cal.4th at pp. 678-679, 25 Cal.Rptr.2d 137, 863 P.2d 207; Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1189-1199, 91 Cal.Rptr.2d 35, 989 P.2d 121; Delgado, supra, 36 Cal.4th at pp. 236-240, 30 Cal.Rptr.3d 145, 113 P.3d 1159;
There are, of course, differences between the risk to a business patron posed by potential third-party criminal conduct on the business's premises and the risk that a patron may suffer a medical emergency on a business's premises because of the patron's own medical condition, and those differences, in many circumstances, may reasonably affect the nature and scope of the duty that a business owes to protect a patron from such risk of harm.
We agree with plaintiffs' apparent current concession that 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. The statutory provisions and related regulations establishing the prerequisites to civil immunity for those entities acquiring an AED reflect the numerous related requirements that a jury is likely to view as reasonably necessary to comply with such a duty. Apart from the initial cost of the AEDs themselves, significant obligations with regard to the number, the placement, and the ongoing maintenance of such devices, combined with the need to regularly train personnel to properly utilize and service the AEDs and to administer CPR, as well as to have trained personnel reasonably available on the business premises, illustrate the magnitude of the burden. (See Health & Saf.Code, § 1797.196, subd. (b); Cal.Code Regs., tit. 22, §§ 100031-100056.2.) Compliance with these numerous obligations clearly implicates more than a minor or minimal burden.
With respect to the question of foreseeability, plaintiffs' complaint does not point to any aspect of Target's operations or the activities that Target's patrons engage in on its premises to indicate a high degree or heightened foreseeability that its patrons will suffer sudden cardiac arrest on its premises. Instead, it appears that the risk of such an occurrence is no greater at Target than at any other location open to the public.
In 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, we conclude that under California law, Target owes no common law duty to its customers to acquire and make available an AED. Under these circumstances, it is appropriate to leave to the Legislature the policy decision whether a business entity should be required to acquire and make available an AED for the protection of its patrons. (Cf., e.g., Philadelphia Indemnity Ins. Co. v. Monies-Harris (2006) 40 Cal.4th 151, 163, 51 Cal.Rptr.3d 709, 146 P.3d 1251 ["the Legislature stands in the best position to identify and weigh the competing consumer, business, and public safety considerations"]; accord, California Grocers Assn. v. City of Los Angeles (2011) 52 Cal.4th 177, 210, 127 Cal.Rptr.3d 726, 254 P.3d 1019.)
Furthermore, numerous factors that logically bear on the question whether, as a matter of public policy, an obligation to acquire and make available an AED should be imposed upon a particular type of business provide further support for the conclusion that that determination should be made by the Legislature rather than by a jury on a case-by-case basis. For example, the nature of a business's activities, the relationship of those activities to the risk that a patron may suffer sudden cardiac arrest, the proximity of the business to other emergency medical services, and other potentially relevant factors are considerations that appear especially appropriate for legislative inquiry and determination. (See, e.g., Md. Inst. for Emergency Medical Services Systems, Rep. to the Maryland General Assembly Regarding the Placement of Automated External Defibrillators (Dec.2007) <http://www.miemss.Org/home/Policy/LegislativeReports/tabid/134/Default.aspx> [as of OPN FILE DATE]; Nichol et al., Cost Effectiveness of Defibrillation by Target Responders in Public Settings (2003) 108 Circulation 697 <http://circ.ahajournals.Org/content/108/6/697.full> [as of OPN FILE DATE]; Cram et al., Cost-effectiveness of Automated External Defibrillator Deployment in Selected Public Locations (2003) 18 J. Gen. Internal Med. 745.). Similarly, the relative size of a retail business's premises, the number of patrons the business serves, or the amount of its owner's resources — factors which plaintiffs urge this court to rely on in this case to limit the reach of a decision in their favor — do not lend themselves to the formulation of a workable common law rule that would provide adequate guidance to businesses. Instead these factors are considerations that are much more suitable to legislative evaluation and line-drawing. Leaving such factors to be evaluated by a jury under a reasonableness standard on a case-by-case basis after a fatal heart attack has occurred on the business's premises, as plaintiffs urge, would as a realistic matter effectively require most if not all businesses to take all of the precautionary steps necessary to qualify for civil immunity under the applicable Good Samaritan statutes.
We observe that in the AED realm, other state legislatures have generally taken steps similar to those of the California Legislature. Most states in the country have, by legislative action, adopted some form of immunity from civil liability for nonmedical entities that acquire and make available AEDs for use in a medical emergency. (See Nat. Conf. of State Legislatures, State Laws on Cardiac Arrest and Defibrillators, supra, <http://www.ncsl.org/issues-research/health/laws-on-cardiac-arrest-and-defibrillators-aeds.aspx> [as of OPN FILE DATE].) Moreover, many other states have also, by statute, identified health or fitness studios as places where AEDs are required to be provided,
Furthermore and most significantly, to date every state appellate court that has confronted the legal question that is before us in this case — namely, whether a business's common law duty to assist patrons who become ill on the business's premises includes a duty to acquire and make available an AED — has concluded that the business's common law duty does not impose such an obligation. (See, e.g., L.A. Fitness Int'l, LLC v. Mayer (Fla.Dist.Ct. App.2008) 980 So.2d 550, 561-562; Boller v. Robert W. Woodruff Arts Center, Inc. (2011) 311 Ga.App. 693, 716 S.E.2d 713; Salte v. YMCA of Metropolitan Chicago Foundation (2004) 351 Ill.App.3d 524, 286 Ill.Dec. 622, 814 N.E.2d 610, 615; Rutnik v. Colonie Ctr. Court Club, Inc. (1998) 249 A.D.2d 873, 672 N.Y.S.2d 451, 453.) The uniformity of these sister-state appellate decisions lends support to our conclusion regarding the scope of Target's common law duty under California law.
Accordingly, in response to the Ninth Circuit's request, we conclude that, under California law, Target's common law duty of reasonable care to its patrons does not include an obligation to acquire and make available an AED for the use of its patrons in a medical emergency.
CANTIL-SAKAUYE, C.J.
WE CONCUR: BAXTER, J., CHIN, J., CORRIGAN, J., LIU, J. NICHOLSON, J.
S207313
I agree with the majority's conclusion that "under California law, Target's common law duty of reasonable care to its patrons does not include an obligation to acquire and make available an AED [automated external defibrillator] for the use of
As the majority explains (maj. opn., ante, at pp. 1221-22), because of the special relationship between a business and its patrons, a business's common law duty of due care includes the obligation to take reasonable measures to help patrons who suffer an injury or the effects of illness while on the premises. Courts may recognize exceptions to the duty of reasonable care where clearly supported by public policy (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 771, 122 Cal.Rptr.3d 313, 248 P.3d 1170 (Cabral); Rowland, supra, 69 Cal.2d at p. 112, 70 Cal.Rptr. 97, 443 P.2d 561) and we have identified several factors that, taken together, may justify such a departure from the general duty rule: "the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved." (Rowland, at p. 113, 70 Cal.Rptr. 97, 443 P.2d 561; see, e.g., Cabral, at pp. 774-784, 122 Cal.Rptr.3d 313, 248 P.3d 1170 [rejecting claimed exception to duty of care for stopping alongside a freeway]; Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472-478, 63 Cal.Rptr.2d 291, 936 P.2d 70 [recognizing exception to duty of care for normal operation of garbage truck near bridle path]; Rowland, at pp. 117-119, 70 Cal.Rptr. 97, 443 P.2d 561 [rejecting categorical exception to duty of care for licensees and trespassers on real property].)
That some of the millions of Californians who visit large retail stores each year will suffer cardiac arrests while shopping is, of course, foreseeable, though as the majority observes (maj. opn., ante, at p. 1226), the probability appears to be no greater in a store than in any place open to the public. Nor does it appear that cardiac arrest in a large retail store is particularly likely to lead to death. Plaintiffs assert the size and configuration of such a store makes timely provision of emergency medical services impossible, but they fail to demonstrate the truth of that proposition, nor is it one we can take notice of or assume. Moreover, while the death of a cardiac arrest victim like plaintiffs' decedent leaves no doubt as to fact of injury, the connection between that injury and defendant's choice not to install and maintain an AED is uncertain. The parties provide different estimates as to how often presence of an AED saves a cardiac arrest victim, defendant asserting around 20 to 30 percent of the time, and plaintiffs around 50 to 70 percent, but that an AED does not
Turning to Rowland's public policy factors, I note that no moral blame can be attached to the omission at issue here. "The overall policy of preventing future harm is ordinarily served, in tort law, by imposing the costs of negligent conduct upon those responsible." (Cabral, supra, 51 Cal.4th at p. 781, 122 Cal.Rptr.3d 313, 248 P.3d 1170.) Here, however, there is a substantial question whether recognizing a common law duty of care would best serve that preventive goal in an area already significantly regulated by statute. The Legislature's approach of encouraging voluntary installation of AEDs by providing qualified immunity for ordinary negligence to those acquiring them for emergency use (Civ.Code, § 1714.21, subd. (d)), while seeking to fund their installation in state buildings (Gov.Code, § 8455), and requiring installation of AEDs only in fitness facilities (Health & Saf.Code, § 104113, subd. (a)), may well provide an equivalent level of prevention without the uncertain burdens of a broad tort duty. As the majority observes, those burdens are likely to be more than minimal and, because the limiting factors proposed by plaintiffs are not readily amenable to judicial definition, they are also likely, in practice, to be widely spread. (Maj. opn., ante, at pp. 1226-28.) The final Rowland factor, the availability and cost of insurance for the risk, might appear to favor recognition of a duty, but the serious, sometimes fatal consequences of cardiac arrest and the difficulty of effectively limiting a common law duty to prepare for it create the possibility that insurance costs would be relatively high for smaller businesses.
Balancing these foreseeability and policy factors together, I join the majority's conclusion that the decision whether and how to expand the legal obligation to install and maintain AEDs is best left to the Legislature. (Maj. opn., pp. 1227-28.) As stated earlier, however, I do not join the majority in all of its reasoning.
The majority's comparison to prevention of criminal acts by third parties is not compelling and, in my view, is somewhat troubling. The negligence claims made in these two factual contexts both rest on omissions — failure to take preventive anticrime measures and failure to prepare for cardiac arrests by installing an AED — rather than on any affirmative action by the property owner, but they seem otherwise to have little in common. In the criminal assault cases the defendant is asked to take measures to control the intentional criminal acts of others, a type of duty that has been regarded as particularly problematic. (See Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 676, 25 Cal.Rptr.2d 137, 863 P.2d 207 [resting analysis on premise that "a duty to take affirmative action to control the wrongful acts of a third party will be imposed only where such conduct can be reasonably anticipated."].) Imposing liability on a business for the consequences of a third person's intentional assault involves a morally questionable shifting of responsibility that is simply not implicated by the claim a business should have installed an AED on its premises.
As the majority observes (maj. opn., ante, at p. 1223), both prevention of criminal assaults and aid in a medical emergency come within the general category of a duty to aid or protect discussed in section 314A of the Restatement Second of Torts. But that is only to say both types of negligence claims rest on the defendant's nonfeasance in the face of a special relationship. By assuming merely from their proximity in the Restatement that the nonminimal burden/heightened foreseeability
Nor do I agree with the majority that the same rule necessarily applies to all nonminimal "precautionary medical safety measures." (Maj. opn., ante, at p. 1225.) To be sure, the Rowland factors are correctly applied to a category of allegedly negligent conduct rather than to the conduct of the particular defendant in the case at bar (Cabral, supra, 51 Cal.4th at pp. 772-774, 122 Cal.Rptr.3d 313, 248 P.3d 1170), but the category should be framed in a manner that allows for meaningful analysis of the factors. The issue in this case is whether large retailers have a duty to install and maintain AEDs, not whether businesses in general have a duty to take precautionary safety measures in general. The latter would be too broad for meaningful analysis.
For these reasons, I concur in the majority's result but not in the entirety of its analysis.
WERDEGAR, J.
"The state department shall supply to the proprietor of every restaurant in this state such adopted and approved instructions. The proprietor of every restaurant shall post the instructions in a conspicuous place or places, which may include an employee notice board, in order that the proprietor and employees may become familiar with them, and in order that the instructions may be consulted by anyone attempting to provide relief to a victim in a choking emergency.
"In the absence of other evidence of noncompliance with this section, the fact that the instructions were not posted as required by this section at the time of a choking emergency shall not in and of itself subject such proprietor or his employees or independent contractors to liability in any civil action for damages for personal injuries or wrongful death arising from such choking emergency.
"Nothing in this section shall impose any obligation on any person to remove, assist in removing, or attempt to remove food which has become stuck in another person's throat. In any action for damages for personal injuries or wrongful death neither the proprietor nor any person who non-negligently under the circumstances removes, assists in removing, or attempts to remove such food in accordance with instructions adopted by the state department, in an emergency in a restaurant, shall be liable for any civil damages as a result of any acts or omissions by such person in rendering such emergency assistance." (Stats.1975, ch. 1142, § 1, pp. 2826-2827.)
In addition, the fourth paragraph of Health and Safety Code former section 28689 stated: "In any action for damages for personal injuries or wrongful death neither the proprietor nor any person who non-negligently under the circumstances removes, assists in removing, or attempts to remove such food in accordance with instructions adopted by the state department, in an emergency in a restaurant, shall be liable for any civil damages as a result of any acts or omissions by such person in rendering such emergency assistance." (Stats.1975, ch. 1142, § 1, p. 2826.)
Comment c to section 314 explains: "The origin of the rule lay in the early common law distinction between action and inaction, or `misfeasance' and `nonfeasance.' In the early law one who injured another by a positive affirmative act was held liable without any great regard even for his fault. But the courts were far too much occupied with the more flagrant forms of misbehavior to be greatly concerned with one who merely did nothing, even though another might suffer serious harm because of his omission to act. Hence liability for non-feasance was slow to receive any recognition in the law. It appeared first in, and is still largely confined to, situations in which there was some special relation between the parties, on the basis of which the defendant was found to have a duty to take action for the aid or protection of the plaintiff." (Rest.2d Torts, § 314, com. c, pp. 116-117.)
A caveat to section 314A states: "The Institute expresses no opinion as to whether there may not be other relations which impose a similar duty." (Rest.2d Torts, supra, at p. 119.)
Past cases have consistently interpreted subdivision (3) of section 314A (Rest.2d Torts) to encompass a business entity, like Target, whose business premises are open to the public, and more broadly to reflect the duty owed by business entities to patrons who are injured or fall ill while on the business's premises. Target does not argue otherwise.
