LEO DAWKINS, Individually and as Next Friend of DOLLETT SMITH DAWKINS, a Disabled Person, Plaintiff-Appellant, v. FITNESS INTERNATIONAL, LLC, L.A. FITNESS and L.A. FITNESS OSWEGO, Defendants-Appellees.
Appeal No. 3-17-0702
APPELLATE COURT OF ILLINOIS THIRD DISTRICT
December 7, 2020
Modified Upon Denial of Rehearing filed July 14, 2021
2020 IL App (3d) 170702-U
Honorable Raymond E. Rossi, Judge, Presiding.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Justices O‘Brien and Daugherity concurred in the judgment.1
ORDER
¶ 1 Held: In a personal injury action, the circuit court erred by dismissing the plaintiff‘s complaint under section 2-619(a)(9) of the Code, where the plaintiff could show that the defendant violated a duty of care under applicable statutes and the common law, and where an applicable statute created an implied private right of action.
¶ 3 Dawkins filed four successive complaints. The last three complaints alleged causes of action for both negligence and willful and wanton misconduct as a result of Fitness employees’ alleged failure and refusal to use the AED as was required by statute, even though there was an employee trained to use the AED on the premises at the time of the incident. The circuit court of Will County dismissed all counts of the complaints with prejudice. Plaintiff brings this appeal from the dismissal of his willful and wanton counts (counts I and II) of the third amended complaint.
¶ 4 FACTS
¶ 5 The following factual recitation is taken from the operative complaint (i.e., Dawkins‘s third amended complaint). Because this appeal is from the circuit court‘s dismissal with prejudice of the plaintiff‘s third amended complaint, the well-pled facts of the complaint are taken as true for purposes of the appeal.
¶ 6 On November 18, 2012, Dollett was exercising at a Fitness facility in Oswego, Illinois, when she collapsed, stopped breathing, and lost her pulse and circulation. This happened in an open and public area of the facility. Fitness staff members were aware of Dollett‘s medical
¶ 7 An AED is able to diagnose ventricular fibrillation and treat it through defibrillation by electrical therapy. While at the Fitness facility, Dollett was experiencing a ventricular fibrillation. It takes less than one minute to apply AED treatment. Uncorrected ventricular fibrillation leads to cardiac arrest, which leads to anoxic brain injury due to lack of an oxygenated blood supply.
¶ 8 The parties agree that the Fitness facility where Dollett‘s injuries occurred was covered by the Illinois Physical Fitness Facility Medical Emergency Preparedness Act (
¶ 9 Dawkins further alleged that the PFFMEPA also required Fitness staff members to: (1) assess unconscious patrons for signs of breathing, pulse, and circulation pursuant to the training of the AED operators and Fitness‘s medical emergency plan; (2) assess unconscious patrons for
¶ 10 Dawkins alleged that, with full knowledge of Dollett‘s medical event and of the requirements to assess and treat her with an AED, Fitness violated the PFFMEPA and acted “willfully, wantonly, and in utter disregard for [Dollett‘s] safety” by: (1) failing to have a functioning AED dеvice on the premises in violation of its medical emergency plan and the PFFMEPA; (2) failing to have properly and adequately trained staff on the premises in violation of its medical emergency plan and the PFFMEPA; (3) refusing to assess Dollett for breathing in violation of AED operator training, the medical emergency plan, and the PFFMEPA; (4) refusing to assess Dollett for signs of pulse or circulation in violation of AED operator training, the medical emergency plan, and the PFFMEPA; (5) refusing to apply the AED to Dollett and follow the voice and visual prompts in violation of AED operator training, the medical emergency plan, and the PFFMEPA; аnd (6) refusing to apply the AED electrical therapy to Dollett in violation of AED operator training, the medical emergency plan, and the PFFMEPA.
¶ 11 Dawkins further alleged that Fitness‘s failure to apply the AED to Dollett caused her permanent brain damage. He claimant that, had a Fitness employee connected the AED devise to Dollett in a timely fashion “as required” and followed the AED‘s prompts, the AED would have restored cardiac function and oxygenated blood to Dollett‘s brain, thereby avoiding or lessening her brain injury.
¶ 12 Dollett is a disabled adult. She is, and continues to be, entirely without understanding or capacity to make or communicate decisions regarding her person and is totally unable to manage her estate or financial affairs.
¶ 14 Fitness moved to strike or dismiss Dawkins‘s negligence counts because they had already been dismissed by the circuit court. The court granted that motion.3 Fitness also moved to dismiss Dawkins‘s willful and wanton counts under
¶ 15 In affidavits filed in suрport of its motion to dismiss, Fitness acknowledged that PFFMEPA required that physical fitness facilities, such as the one operated by Fitness in Oswego, must comply with certain requirements. Specifically, PFFMEPA required that all physical fitness facilities have a medical emergency plan filed with the Illinois Department of Public Health (“IDPH“), an AED on the premises, and a trained AED on staff during business hours. However, Fitness asserted that it fulfilled each of these requirements, and was therefore immune from liability, because: (1) the IDPH has confirmed that a medical emergency plan was received and approved for the physical fitness facility operated by Fitnеss in Oswego; (2) Fitness had a working AED on the premises on November 18, 2012, when Dollett collapsed; and (3) the front desk employee on the premises at the time of Dollett‘s medical event was a trained AED user. Fitness argued that these facts established that its Oswego facility was in full compliance with the PFFMEPA at the time of Dollett‘s injuries, and therefore, could not be held liable for any acts or omissions relating to her injuries.
¶ 17 After briefing and oral argument, the circuit court granted Fitness‘s motion to dismiss Dawkins‘s willful and wanton counts with prejudice. The court stated:
“All right. I think Counts I and II are to be dismissed because Defendant Fitness was in compliance. I don‘t believe that there is anything that creates the duty to use the AED. And I think the strongest argument is that the mere presence of an AED on the premises, even with the plan that has to be undertaken, does not impose a legal duty to provide medical assistance. So I am going to dismiss the action.”
The written order subsequently issued by the circuit court stated: “After hearing Counts I and II of plaintiff‘s Third Amended Complaint are dismissed with prejudice. Counts III and IV previously dismissed with prejudice. Case dismissed.”
¶ 18 This appeal followed.
¶ 19 ANALYSIS
¶ 20 At issue in this appeal is whether the circuit court properly determined that, as a matter of law, Dawkins could not establish that Fitness‘s staff members had a duty to use its AED on
¶ 21
¶ 22 The circuit court dismissed Dawkins‘s willful and wanton counts because it found that Fitness was in full compliance with the PFFMEPA and that nothing created a duty for Fitness employees to use the AED on Dollett at the time of her medical emergency. By implication, the court ruled that neither the PFFPRA Act, the AED Act, nor the common law recognized or gave rise to any such duty. We disagree.
¶ 23
“Liability. Nothing in this Act shall be construed to either limit or exрand the exemptions from civil liability in connection with the purchase or use of an [AED] that are provided under the [AED] Act or under any other provision of law. A right of action does not exist in connection with the use or non-use of an [AED] at a facility governed by this Act, except for willful or wanton misconduct, provided that the person, unit of state or local government, or school district operating the facility has adopted a medical emergency plan as required under Section 10 of this Act, has an [AED] at the facility as required under Section 15 of this Act, and has maintained the [AED] in accordance with the rules adopted by the Department.” (Emphases added.)
210 ILCS 74/45 (West 2012).
¶ 24 Similarly,
“An AED user is not liable for civil damages as a result of any act or omission involving the use of an [AED] in an emergency situation, except for willful or wanton misconduct, if the requirements of this Act are met.” (Emphases added.)
410 ILCS 4/30(d) (West 2012).
¶ 25 By their plain terms, neither of these statutes immunize a defendant from liability arising from the failure to use an AED on an injured person, provided that such failure was willful and wanton. The italicized phrases in the above quotations from each statute make clear that a defendant covered by the statutes may not be found liable for civil damages for failure to use an AED, except for willful or wanton misconduct. The plain and unambiguous meaning of this phrase is that civil liability may attach to willful and wanton failures to usе an AED.
¶ 27 The PFFMEPA requires that a fitness facility like the one at issue here have a functioning AED on its premises.
¶ 28 These requirements clearly suggest that the legislature intended to impose a duty on properly trained staff to assess unconscious patients and to use the AED when appropriate.
¶ 30 We find Fitness‘s argument unpersuasive. As an initial matter, Fitness‘s interрretation is contrary to the plain words of the relevant statutes.
¶ 31 Fitness‘s reading of the relevant provision of the AED is also unsupportable. In pertinent part,
¶ 32 Moreover, Fitness‘s reading would negate the expressed purpose of the statutes, which is to protect patrons of fitness facilities and to save lives by encouraging the proper use of AEDs, and it would render the statutes absurd and ineffectual. On Fitness‘s reading, a fitness facility could fully comply with the PFFMEPA by having a functioning AED on site, training a staff member in its use, and developing an emergency medical plan, without having any obligation to implement the plan or to have the trained employee use the AED on a stricken patron under any circumstances. This interpretation flouts the plain language of the statutes, their expressed purposes, and common sense. As Dawkins‘s counsel aptly stated before the circuit court, Fitness‘s reading would allow covered facilities to be in full compliance with the statutes even if they used the AED only “as wall art.” We must avoid construing a statute in a manner than would render it absurd, pointless, or ineffectual. Croissant v. Joliet Park District, 141 Ill. 2d 449, 455 (1990) (“Statutes are to be construed in a manner that avoids absurd *** results“);
¶ 33 However, even assuming arguendo the statutes at issue did not create a duty to use an AED in this case, such a duty is recognized under the common law. To state a claim for negligence, a plaintiff must plead a duty owed by a defendant to that plaintiff, a breach of that duty, and injury proximately caused by that breach of duty. Marshall v. Burger King Corp., 222 Ill. 2d 422, 430 (2006). Whether а duty of care exists is a question of law to be decided by the court. Buerkett v. Illinois Power Co., 384 Ill. App. 3d 418, 422 (2008). In deciding whether a defendant owes a plaintiff a duty, the court considers (1) whether the plaintiff‘s injury was reasonably foreseeable, (2) the likelihood of injury, (3) the magnitude of the burden of guarding against injury, and (4) the consequences of placing a burden on the defendant. Id.
¶ 34 Consideration of these factors supports the conclusion that Fitness had a common law duty to use an AED on Dollett under the facts presented in this case. It is certainly foreseeable that patrons could suffer cardiac events while exerting themselves at fitness centers. Indeed, the purpose of the PFFMEPA is to provide AEDs to fitness facilities and to staff those facilities with trained AED operators in order to provide life-saving treatment for such medical emergencies. Cardiac events are more likely to occur at fitness facilities than at other commercial establishments due to the fact that all of the patrons at fitness facilities are exerting themselves.
¶ 35 Moreover, a common law duty arises from section 314A of the Restatement (Second) of Torts, which has been adopted by our supreme court. See Marshall, 222 Ill. 2d at 438. That section provides that the relationship between a business invitor and invitee is a special relationship that may give rise to an affirmative duty on the business invitor‘s part to aid or protect his invitee against unreasonable risk of physical harm. Id. This includes the duty to: (1) give the invitee such first aid as he reasonably can once he knows or hаs reason to know that the invitee is endangered, ill, or injured; and (2) care for the invitee until he can be cared for by others (i.e., to take reasonable steps to turn the sick invitee over to a physician). Restatement (Second) of Torts § 343A cmt. f (1965). Accordingly, irrespective of any duty it may or may not have owed under the PFFMEPA or AED Act, Fitness owed a duty under Illinois common law to provide “reasonable” first aid to Dollett given that it knew of her condition. Because Fitness had
¶ 36 Fitness relies upon Salte v. YMCA of Metropolitan Chicago Foundation, 351 Ill. App. 3d 524 (2004), to establish that no such duty exists. However, Salte is distinguishable. In Salte, our appellate court held that a health club was not required to have an AED on site and to use it on a patron who suffered cardiac arrest while using treadmill at the health club. Id. at 529. However, in Salte, the health club did not have an AED on the premises, much less an employee properly trained in the use of an AED and in the evaluation of unconscious patrons for such use, as here. Id. at 525 (the events in Salte took place before the PFFMEPA was enacted). Accordingly, Salte is of little relevance in determining the scope of Fitness‘s common law duty in this case.
¶ 37 Fitness argues in the alternativе that the PFFMEPA and AED Act abrogate any common law duty by immunizing the defendants from liability for failing to use an AED on a patient suffering from a cardiac emergency. We disagree. As noted above, the statutes clearly and unambiguously immunize only negligent conduct in connection with the use or non-use of an AED, not willful and wanton conduct. Moreover, “[t]he repeal or preemption of a common-law remedy by implication is not favored [citation], and a statute that appears to be in derogation of the common law will be strictly construed in favor of the person sought to be subjected to the statute‘s operation [citation].” Heider v. Knautz, 396 Ill. App. 3d 553, 561 (2009). “Any legislative intent to abrogate the common law must be clearly and plainly expressed, and [courts] will not presume from ambiguous language an intent to abrogate the common law.” Id. Here, there is no such ambiguous language in the statutes at issue, and no clearly and plainly expressed
¶ 38 Furthermore, even if there were no applicable common-law cause of action, we agree with Dawkins that a privatе right of action can be implied from the PFFMEPA. A court may determine that a private right of action is implied in a statute that lacks explicit language regarding whether a private right of action shall be allowed. Fisher v. Lexington Health Care, Inc., 188 Ill. 2d 455, 460 (1999); Pilotto v. Urban Outfitters West, L.L.C., 2017 IL App (1st) 16084, ¶ 22. In order to find an implied private right of action, a court must find that: (1) the plaintiff is a member of the class for whose benefit the statute was enacted; (2) the plaintiff‘s injury is one the statute was designed to prevent; (3) a private right of action is consistent with the underlying purpose of the statute; and (4) implying a private right of action is necessary to provide an adequate remedy for violations of the statute. Fisher, 188 Ill. 2d at 460; Pilotto, 2017 IL App (1st) 16084, ¶ 22.
¶ 39 Here, Dollett was a patron at a fitness facility, which is exactly the class of persons that the PFFMEPA was enacted to benefit. Dollett‘s injury (cardiac arrest caused by a ventricular fibrillation) is precisely the type of injury that an AED detects and treats, and her brain injury as the result of untreated ventricular fibrillation is exactly the type of injury that the PFFMEPA was designed to prevent. The language and the requirements of the PFFMEPA make clear that a private right of action is consistent with the underlying purpose of the statute, which is to protect patrons of fitness facilities from suffering serious injuries by having trained AED users on site who will use an AED on patients suffering cardiaс events.
” ‘A willful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting reckless disregard for the safety of others, such as a failure, after knowledge of an impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care.’ ” Ziarko v. Soo Line Railroad Co., 161 Ill. 2d 267, 273 (1994) (quoting Schneiderman v. Interstate Transit Lines, Inc., 394 Ill. 569 (1946)).
There is a continuum of conduct within the spectrum of conduct which is “willful and wanton.” Id. at 275. At the lower end of the spectrum, “willful and wanton acts share many similar characteristics with acts of ordinary negligence,” where willful and wanton misconduct “may be only degrees more than ordinary negligence.” Id. At the other end of the spectrum, “willful and wanton acts may be only degrees less than intentional wrongdoing.” Id. at 276.
¶ 42 In this case, Dawkins alleged that Fitness was required by its medical emergency plan and by the training provided to its staff to assess unconscious patrons for the use of an AED, and to attach the AED pads to a patron and follow the voice prompts where the patron was unconscious and had no signs of breathing, circulation, or a pulse. Dawkins further alleged that Fitness failed to do this despite the fact that Fitness knew that Dollett had collapsed, stopped breathing, and lost her pulse in an open and public area of the facility, and despite the fact that
¶ 43 Finally, Fitness argues that it would be bad policy to require non-medical personnel to use AEDs. We are not persuaded by this argument. The legislature chose to eliminate liability for ordinary negligence but not for willful and wanton conduct. The language and purposes of the Act demonstrate that the legislature has imposed a limited duty to use an AED by allowing liability only for a failure to use that would amount to willful and wanton misconduct. The legislature has therefore concluded that such limited liability adequately protects fitness clubs and their staff while allowing injured plaintiffs a limited cause of action against them. We will not second guess the legislature‘s policy determinations on this issue.
¶ 44 As noted above, the question presented on review of the circuit court‘s granting of Fitness‘s
¶ 46 CONCLUSION
¶ 47 For the reasons set forth above, we reverse judgment of the circuit сourt of Will County and remand for further proceedings.
¶ 48 Reversed. Cause remanded.