*1
Charles Mills/JKST Club, Inc. Tennis Brown, Currie, for Anthony Craig Philadelphia, J.
Alfred Atcovitz, Jerry Atcovitz. Roslyn H/W C.J., CASTILLE, NIGRO, ZAPPALA, CAPPY, and Before EAKIN, NEWMAN, SAYLOR and JJ.
OPINION ZAPPALA. Chief Justice granted appeal
We allowance of in this case to determine whether a tennis club a of care to its owes members defibrillator, acquire and maintain an automated external “AED,” premises on For emergency hereinafter its use.1 follow, the reasons that hold that clubs do owe a we such not duty to an AED premises. have available their stroke, January 1996, Jerry
On Atcovitz suffered a attack, a secondary to heart tennis at playing while a collapse, Club.2Within of his tennis Tennis minute two club cardiopulmonary members administered and resuscitation later, called for an Approximately ambulance. ten minutes emergency medical technicians and a arrived administered series of shocks with transported defibrillation an AED and hospital.3 incident, Atcovitz to a Although he survived the Atcovitz permanent injuries, “sustained including severe anoxic encephalopathy multiple permanent with ner- central system vous He is longer disorders. no able to think or concentrate, is longer get no able or to walk out bed unassisted, requires virtually every assistance in aspect his life.” R. 42a-43a. portable
1. An AED "[a] device that uses electric shock to restore a rhythm stable heart to an individual in cardiac arrest.” 42 Pa.C.S. 8331.2(f). years sixty-four Atcovitz was then twenty-year history old a and had heart, problems, including previous surgery. bypass heart attack Appellees knowledge not history. do assert that Mills had of such *4 any respond Atcovitz did not by to of the AED shocks administered technicians, emergency subsequently the medical respond but to a did this, pacemaker. Gulph transcutaneous From Mills remarks that At- fibrillation,” suffering covitz opposed was from “atrial as to “ventricu- Thus, that, lar Gulph implies fibrillation.” Mills even if would Atcovitz immediately have received electrical collapsed, defibrillation after he it 6; any would Appellant’s not have had beneficial effect. Br. at see also 30a, Court, however, R. 147a-149a. This view in must the record the light nonmoving party reviewing grant most favorable to the a of Thus, summary judgment. operate assumption we must under the that mitigated injuries. earlier use of an AED would have Atcovitz’s wife, Gulph Roslyn, Atcovitz and his sued Appellees, Jerry of Common Pleas Philadel- negligence Mills for the Court that, [Gulph County.4 they “had phia Specifically, claimed it on an AED device used possessed [Atcovitz] Mills] and, injuries significantly his would have been less promptly, therefore, for [Gulph damages.” is liable to him that Mills] that, defense, at Gulph Trial at its Mills Op. 2. In asserted Ct. not have injury, employees the of Atcovitz’s its would time to AED. by been law use an permitted its attempt preclude Gulph asserting In to Mills from defense, summary partial judgment, moved for Appellees trial, Immediately prior which trial court the denied. however, orally moved for of their Appellees reconsideration time, Gulph for motion. At the same Mills cross-moved Gulph The trial court Mills’s summary judgment.5 granted summary for case. judgment cross-motion and dismissed the grant summary judgment on the The court based its Act,6 Act,” Medical Services hereinafter the “EMS Emergency issued The court con- regulations pursuant thereto. that, injury, at Atcovitz’s Mills’s Gulph cluded the time of Thus, prohibited using from an AED. employees legally were Gulph negligent that Mills “cannot be held court held Op. Trial Ct. at 4. failure to use device.” Court, timely Appellees appeal Superior filed a which summary granting judgment. reversed the trial court’s order Club, Inc., Mills 1280, Atcovitz v. Tennis Gulph See 766 A.2d Lafayette Squad, parties 4. Atcovitz also sued Ambulance Rescue but the eventually agreed squad prejudice. R. to dismissal of the rescue with 11la-112a. Court, citing Pennsylvania Superior 5. The Rule of Civil Procedure 1035.2, summary reproved considering the trial court for a motion for Club, Inc., judgment Gulph day trial. Mills Tennis Atcovitz admonition, 2 (Pa.Super.2001). n. The court’s however, parties agreed seemed to overlook that the had to reconsider- Appellees' ation motion and Mills’s cross- consideration Indeed, presented pure question motion. R. 8a-14a. the motions expense law would the time and of trial if avoid which, ultimately, prevailed, it did. 3, 1985, amended, July P.L. P.S. 6. Act of No. as §§ 6921-6938. *5 1281 n. 2 (Pa.Super.2001). opined The court that the trial court’s reliance on the EMS Act inappropriate was it because designed was for and aimed at emergen- the administration of cy by services professionals. trained licensed As the Act any provision EMS did not contain addressing emergency ie., by lay persons, actions untrained Gulph Mills’s employees, court concluded that the trial grant summary court’s judgment supported by could not be reference to the EMS Act or implementing regulations. its
The court also addressed the
of 42
effect
Pa.C.S.
8331.2,
§
“AED
Act,”
hereinafter the
Good Samaritan
which
provides
immunity”
“Good Samaritan civil
for use of an AED
in
specifically
certain instances.
It
provides immunity for
who,
faith,
good
untrained individuals
use an AED in an
emergency as an ordinary,
reasonably prudent
individual
would do under
or
the same
similar circumstances.
Id. at
8331.2(e).
Although the AED Good Samaritan Act was
enacted
injuries,
after Atcovitz’s
the court found that
its
passage
Legislature’s
evinced the
desire that
use AEDs not
solely
be
professionals.
restricted
to trained
Accordingly, the
court held that the trial court erred as a matter of
law
granting Gulph Mills’s motion
summary
judgment. See
Ateovitz,
This Court’s of review of an order granting summary judgment is plenary. Block, Inc., Basile v. H & R (2000). 563 Pa. 761 A.2d Our standard of review is clear: the trial court’s order will only be reversed where it is established that the court committed an error of law or clearly its abused discretion. Id. Summary judgment is appropriate only in those cases where the record clearly demonstrates that is genuine there no issue of material fact and that the moving party to judgment entitled as a matter 1035.2; of law. Pa.R.Civ.P. see also Murphy Duquesne Ghost, Holy (2001). Univ. 565 Pa. 777 most light in the must view the record reviewing court The as to resolving all doubts nonmoving party, to the favorable against fact of material genuine issue existence of Basile, facts are at 1118. When the 761 A.2d moving party. *6 differ, may a trial court minds cannot that reasonable so clear v. (citing Id. Cochran summary judgment. enter properly (1995)). 245, 210, 248 666 A.2d 542 Pa. Corp., GAF negli action in necessary plead to an The elements (1) duty obligation recognized or of a the existence gence are: standard of to conform to a certain law, requiring the actor by (2) to conform conduct; of the defendant part a failure on the (3) thereof; a connection causal duty, or a breach to that resulting injury; and and the breach the defendant’s between (4) complainant. Orner by suffered the damage actual loss ór (1987) (citing Mallick, 527 A.2d Pa. 634, 462 A.2d Pa. Sys., Hills Health Morena v. South al, Prosser and (1983)); Page Keeton et see also W. 684 n. 5 (5th ed.1984). Here, at 164 Law of Torts on the Keeton duty.7 of element analysis on the threshold focus our we must of question fundamental may we resolve the Only therein legal protection to interests are entitled plaintiffs the whether conduct. the defendant’s against cases, as an may be defined negligence in duty, “A effect, to give recognition will to which the law obligation, toward another.” of conduct particular to a standard conform Torts, This has embraced § 53 at 356. Court supra, Law of by duty the lower argue was not considered Appellees that the issue of therefore, and, by Appellees’ may this Court. not be addressed courts Instead, 302). Appellees that “[t]he assert (citing Pa.R.A.P. Br. at 4-5 Commonwealth, whether the law of this question under review is sole January it in made Atcovitz’s cardiac arrest at the time of Mr. (emphasis Id. at 4 in [AED].” have and use an illegal Mills to narrowly the issue is too original). Appellees’ characterization subsidiaiy argument of the illegality a Gulph Mills’s defense is focused. i.e., duty carrying duty, no because whether there was broader issue Thus, illegal. properly before this been the issue AED would have an duty a whether Mills owed plenary review remains Court's premises for acquire maintain an AED on its care to Atcovitz emergency use. oft-quoted passage articulating the considerations that duty: of common law concept underlie sands, are and no fit shifting These foundation. There is a law, duty if is says duty; the court there a like the Constitution, Duty only is we make it. a word with what which we our conclusion that is or is not to state there be necessarily begs question. liability; it the essential When duty, damage, everything we find a has breach been purpose directing said. The word serves useful atten- defendant, obligation imposed tion to the be upon events; sequence beyond rather than the causal it serves none. In decision not there is a duty, whether or many history, factors our interplay: The hand of ideas of morals and justice, the convenience of administration of the rule, and our social ideas as to the loss should where fall. In the will end the court decide there is a whether the basis of community, “always keeping the mores *7 mind the fact that we endeavor to a rule in make each case practical that will and in with keeping general be the understanding of mankind.” Prosser, Revisited, (1953) 1,
D. 52 Palsgraf Mich.L.Rev. 15 (quoting Long Co., 339, Palsgraf v. Island R.R. 248 N.Y. 162 99, (N.Y.1928) (Andrews, J., dissenting)); N.E. 104 Althaus ex Cohen, 547, rel. Althaus v. (2000); 562 Pa. 756 1169 A.2d Burd, (1979). Thus, 486 404 Sinn Pa. A.2d the legal concept of duty necessarily amorphous in often rooted considerations, public policy which may perception include our Althaus, history, morals, of justice, society. and 756 A.2d at (citing Gardner v. Corp., Consolidated Rail 524 Pa. (1990)). 1016, 1020 Althaus, factors, In this Court enunciated discrete several from principles, derived the aforementioned that our courts to determining balance in duty are whether a common law (1) (2) parties; care exists: relationship the the between the (3) utility conduct; social actor’s the the nature the risk (4) imposed foreseeability incurred; of the harm the actor; (5) consequences duty imposing upon the the Althaus, public proposed overall interest in the solution. construct, whether we must resolve this A.2d at Within maintain acquire to Atcovitz to Mills owed a an AED. factor, fifth Althaus
Here, analysis upon turns the our solution. The i.e., proposed in the public overall interest the regulations reveal ensuing and the enactments Legislature’s AED, maintenance, along with and use of acquisition, that our highly regulated. Where requirements, are training AED appli considered the statewide thoroughly have so lawmakers must refrain subject, of a this Court implications cation and legislation. that requirements upon additional imposing from to Act, Legislature aspired to the EMS Looking first emergency medical readily available and coordinated assure Pennsylvania. quality people to the highest of the services 6922(a). Secretary accomplish purpose, To this § 35 P.S. and coordinate the plan, guide, assist required of Health is systems emergency medical services development of areawide system to coordinate the system and into a unified Statewide 6925(a). 35 P.S. systems neighboring states. with similar adopted reason, of Health has Department For provisions of the regulations implementing the comprehensive Act, establishing qualifications, including regulations EMS pro- duties, for those involved procedures and certification 28 Pa.Code medical services. See viding emergency Act, purpose the stated §§ 1001.1-1015.2. Similar the EMS assist and coordinate the plan, guide, “is to regulations of the systems into a unified Statewide development regional EMS systems in system with similar system and to coordinate the Depart- states, implement and to otherwise neighboring act consistent with the De- under the responsibilities ment’s *8 § Id. at 1001.1. rulemaking authority.” partment’s imple Act and its goals, these the EMS To achieve identify capaci explicitly classify the menting regulations of individuals ties, qualifications training requirements, services. emergency medical who are authorized deliver emergency ser See, (delineating § 6931 medical e.g., 35 P.S. observation Although Superior the Court’s personnel). vices regulations specifically that the Act and its do not refer EMS correct, by to the use of AEDs untrained individuals is we do agree not with the court’s that Act and its conclusion the EMS regulations irrelevant to issue of are the whether Rather, premises. had a an AED they to use on its are maintenance, acquisition, relevant to demonstrate that the AED, an along training use of with AED requirements, are Indeed, highly regulated. Legislature’s of implication the the of Act laypersons exclusion untrained from the and its EMS regulations preclude unqualified is to and untrained individu- administering emergency using als from medical services an that, AED. We must infer the of expressio under doctrine alterius, unius est specific exclusio the inclusion of a matter in implies a statute the exclusion other Pane v. matters. Commonwealth, Dep’t 422 Pa. Highways, A.2d (1966) (citing City Cali Pa. Philadelphia, 406 (1962)). governmen- It would absurd be for the system tal with charged rendering emergency effective medi- cal using care to hinder the of that delivery care AEDs through system, ordinary the while duty- citizens would be maintain, bound to acquire, from any and use AEDs free regulation by Department of Health.
Likewise, Superior Court also the AED misconstrued Good Samaritan Act as evincing Legislature’s intention that the EMS Act should not restrict the use AEDs to professionals. Act, The AED Good trained Samaritan which adopted years was two his injuries, after Atcovitz sustained provides immunity civil of AEDs trained users and re- quires that “expected complete training users shall in the use (c). 8331.2(a), of an AED....” §§ 42 Pa.C.S. exception As an rule, general to that the AED Act Good Samaritan also provides immunity who, civil to untrained individuals in good faith, emergency use AED an as an ordinary, reasonably prudent would do individual under the same or circum- similar 8331.2(e). stances. Significantly, Id. at AED Good “good Samaritan Act including defines faith” as “a reasonable opinion that the immediacy the situation is such use an AED should not be until postponed emergency
590 hospital- or person arrive personnel medical services 8331.2(f). Id. ized.” at
Thus,
merely
Act
creates
the AED Good Samaritan
an
liability on an untrained individual who
exception
imposing
for
situations;
it does not
emergency
an AED in limited
uses
Indeed,
by any
excep-
such individual.
authorize its use
personnel under the
Act are the
expresses
tion
EMS
only
AEDs:
instances
applies
it
to
where
preferred users
In
emergency
personnel
services
are unavailable.
medical
addition,
aimed
Legislature
it
not indicate that the
to
does
regulations governing
training
use
dispense with the
immunity provision
of a civil
Simply,
AEDs.
the existence
emergency
who
an AED in an
Samaritans
use
Good
impose duty
a
on a
to
situation cannot
business establishment
maintain,
premises.8
and use
a device on its
acquire,
such
Act nor the AED Good Samaritan Act
Neither the EMS
maintain,
Gulph
acquire,
imposed duty upon
a
Mills to
use
statute,
case,
any
do not
other
or
Appellees
an AED.
cite
duty
such
imposed
Gulph
that would have
a
regulation
January
injuries
at
of Atcovitz’s
in
Mills
the time
AED,
duty
carry
did
a
an
Gulph
Because
Mills
not owe
a
claim
prima
not have established
Appellees could
facie
Omer,
Thus,
Pa.
Justice opinion I to the extent that it holds that join majority must the factors in Althaus ex rel. Althaus v. we balance imposed duty upon Gulph if Act 8. Even the AED Good Samaritan AED, Legislature carry it control this case. The would not injuries years two Atcovitz his adopt did not it until after sustained (2000). Cohen, Pa. all evaluating After factors, I agree five that no exists here. NIGRO,
Justice dissenting. *10 I do necessarily disagree While not majority’s with the that conclusion a tennis club not a duty does owe to its acquire members to and maintain an automated external (“AED”) defibrillator on its premises use, for emergency that issue is not only before us here. Superior The issue that the Court considered was Emergency below whether the Medical Act, 6921-6938, §§ Services Pa.C.S. Department and the regulations Health promulgated pursuant specifi- to that Act cally prohibited Appellants using from an AED. Concluding not, they Superior did Court the trial reversed court’s entry summary judgment in favor of Appellants on the basis of those authorities. Atcovitz Tennis Club, Inc., (Pa.Super.2001) (“[Ajlthough we make no on finding the ultimate of [plaintiffs’] merits claim, find that we the trial court erred as a matter of law granting motion for summary judgment [defendant’s] on the cited.”) basis of the regulations statutes and As I agree with Superior Court’s conclusion in that I regard, would affirm Superior Court’s order and remand case to the trial court to consider in the first any instance whether there is basis which Appellants conclude that owed a Appellees.
Mr. joins Justice dissenting SAYLOR opinion.