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.
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 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 AED does exist under California common law, or, in the alternative, asking that court to certify to this court the question of state law regarding the existence of such a duty under California common law. Target opposed certification, but, after oral argument, the three-judge panel, by a two-to-one vote, determined that California precedents do not provide sufficient guidance to answer the question of California tort law presented by the case and asked this court to address the issue. (Verdugo v. Target Corp., supra, 704 F.3d at p. 1045.)
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...." (American Heart Assn., Implementing an AED Program (July 2013) p. 3 [corporate training] <http://www.heart.org/idc/groups/heart-public/@wcm/ @ecc/documents/downloadable/ucm_455415.pdf> [as of June 23, 2014].) 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 that passes without defibrillation." (American Heart Assn., Implementing an AED Program, supra, at p. 4.)
Beginning in the 1990s, small portable defibrillators, called AEDs, 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
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 National Conf. of State Legs., State Laws on Cardiac Arrest & Defibrillators (Jan. 2013) [listing state laws] <http://www.ncsl.org/research/health/laws-on-cardiac-arrest-and-defibrillators-aeds.aspx> [as of June 23, 2014].)
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.
Health and Safety Code section 1797.196, subdivision (b), in turn, sets forth a substantial number of requirements that a person or entity that acquires an AED must comply with in order to be eligible for the immunity from civil liability afforded by Civil Code section 1714.21. Among other prerequisites, section 1797.196, subdivision (b), requires a person or entity that acquires an AED to (1) comply with all regulations governing the placement of an AED, (2) ensure that the AED is maintained and regularly tested, (3) check the AED for readiness after each use and at least once every 30 days, (4) ensure that any person who uses an AED alerts emergency medical services (EMS) as soon as possible, (5) provide AED training for at least one employee for every AED unit acquired (up to five AED units) and have a trained employee available during normal operating hours to respond to an emergency involving the use of an AED, (6) prepare a written plan of steps to be taken in the event of an emergency involving the use of an AED, (7) ensure that tenants in a building in which an AED is located annually receive a brochure describing the proper use of an AED and post similar information next to any installed AED, and (8) notify tenants at least once a year of the location of AED units in the building.
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
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.
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.
Health and Safety Code 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."
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 law principles for acting or for failing to act in a particular manner. For example, after this court, in Coulter v. Superior Court, supra, 21 Cal.3d 144, concluded that under
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, the parents of a teenager who died as a result of sudden cardiac arrest while participating in an ice hockey game
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.)
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 that acquire AEDs, 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.) That statement was clearly dictum inasmuch as the defendant in Rotolo had voluntarily acquired and installed an AED. In any event, other
Comparable language contained in the Court of Appeal decision in Breaux, supra, 153 Cal.App.3d 379, 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 attempted to remove the food from the wife's throat. Instead, a restaurant employee summoned an ambulance. The wife was alive when the ambulance arrived but died thereafter.
In Breaux, supra, 153 Cal.App.3d 379, 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.) 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
In reaching this conclusion, the court in Breaux, supra, 153 Cal.App.3d 379, 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
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
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 that 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 that 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 that 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.
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
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; Breaux, supra, 153 Cal.App.3d 379.) 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; Delgado, supra, 36 Cal.4th 224; Castaneda v. Olsher, supra, 41 Cal.4th 1205.) As noted above (ante, at p. 335, fn. 17), section 314A of the Restatement Second of Torts groups together both the duty to provide aid to an ill or injured patron and the duty to protect a patron against an unreasonable risk of physical harm, reflecting the fact that in both settings the legal duty to the patron arises from the relationship between the parties and exists even though a business has not itself caused the injury or illness in question. This court's decision in Delgado, supra, 36 Cal.4th 224, which involved the scope of a business's common law duty to protect a patron against a third party criminal assault, recognized the similarity between the two settings, citing and relying upon one of the California Court of Appeal decisions that set forth a business's common law duty to "undertake relatively simple measures" to aid patrons who become ill or need medical attention while on the business's premises. (Id. at p. 241 [citing Breaux, supra, 153 Cal.App.3d 379, 382].)
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; Morris v. De La Torre (2005) 36 Cal.4th 260, 271 [30 Cal.Rptr.3d 173, 113 P.3d 1182].)
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; 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; Castaneda v. Olsher, supra, 41 Cal.4th at pp. 1213-1214.)
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.
In their briefing at earlier stages of this litigation, plaintiffs maintained that requiring a business to acquire and make available an AED would impose only a relatively minor burden on a business establishment, relying primarily upon the fact that Target itself sold AEDs on its Web site for approximately $1,200. In the briefs filed in this court, however, plaintiffs appear to acknowledge that a requirement that a business acquire and make available an AED for use in a medical emergency cannot accurately be described as imposing only a minor burden on a business establishment. In their current briefs, plaintiffs explicitly disclaim any intent to seek a ruling that would recognize a general common law duty to provide an AED that would be applicable to all retail establishments including, for example, "a modest neighborhood dry cleaners or gas station." Instead, plaintiffs ask this court to recognize a
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.
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 Md. Gen. Assem. Regarding the Placement of Automated External Defibrillators (Dec. 2007) <http:// www.miemss.org/home/Policy/LegislativeReports/tabid/134/Default.aspx> [as of June 23, 2014]; Nichol et al., Cost Effectiveness of Defibrillation by Targeted Responders in Public Settings (2003) 108 Circulation 697 <http://circ.ahajournals.org/content/108/6/697.full> [as of June 23, 2014]; 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 National Conf. of State Legs., State Laws on Cardiac Arrest & Defibrillators, supra, <http://www.ncsl.org/ issues-research/health/laws-on-cardiac-arrest-and-defibrillators-aeds.aspx> [as of June 23, 2014].) 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 Internal., 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 [814 N.E.2d 610, 615, 286 Ill.Dec. 622]; Rutnik v. Colonie Center Court Club, Inc. (N.Y.App.Div. 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.
Baxter, J., Chin, J., Corrigan, J., Liu, J., and Nicholson, J.,
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 its patrons in a medical emergency." (Maj. opn., ante, at pp. 343-344.) Unlike the majority, however, I reach that conclusion without analogizing this case to those involving protection from third party criminal activity. (Id., at pp. 337-339.) Nor do I embrace the majority's broad rule, drawn from that analogy, that property owners need not adopt any nonminimal precautionary medical safety measure "in the absence of a showing of a heightened or high degree of foreseeability of the medical risk in question." (Id., at p. 339.) I would instead directly evaluate the specific obligation proposed here, that of installing and maintaining an AED in a large retail business, under the duty factors we outlined in Rowland v. Christian (1968) 69 Cal.2d 108, 113 [70 Cal.Rptr. 97, 443 P.2d 561] (Rowland), and would hold only that the duty of reasonable care does not extend to that particular obligation.
As the majority explains (maj. opn., ante, at p. 335), 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) 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; see, e.g., Cabral, at pp. 774-784 [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];
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. 340), 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 provide sure and certain protection from death is in any event clear.
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.) 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. 340-341.) 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
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. 337), 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 rule we have developed for prevention of criminal acts also applies to preparation for medical emergencies, the majority may leave the unfortunate impression that the rule for prevention of assaults applies to all claims of negligent omission to act within a special relationship. Such a broad conclusion is unlikely to be justified under a properly nuanced Rowland duty analysis.
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. 339.) 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), 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.
"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 nonnegligently 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 nonnegligently 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 `non-feasance.' 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, § 314A, Caveat.)
Past cases have consistently interpreted Restatement Second of Torts, section 314A, subdivision (3) 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.
