Lead Opinion
Opinion
INTRODUCTION
In this wrоngful death action, the parents of a teenager who died as a result of sudden cardiac arrest while participating in an ice hockey game sued the operators of the ice hockey facility. They alleged that defendants had a duty to notify users of the facility of the existence and location of an automatic external defibrillator (AED) at the facility. They claimed that the timely use of such a device would have greatly increased the teenager’s chances of survival.
The trial court sustained defendants’ demurrer to plaintiffs’ third amended complaint. The trial court noted that the Legislature had set forth a detailed statutory scheme concerning the acquisition and use of AED’s, which “did not include any requirement to notify business invitees of the existence or location of AED’s on a premises.” The court further found no common law duty under the facts of this case, beyond a duty to timely summon emergency services, which defendants fulfilled. The court found that plaintiffs could not state a cause of action under the facts as pleaded, and denied leave to amend. Judgment was entered in favor of defendants, and plaintiffs appeal.
On appeal, appellants contend the court erred in finding that respondents did not have a legal duty to develop an emergency plan that included
First, the Legislature has occupied the field by enacting a number of detailed and comprehensive statutes governing the acquisition and use of AED’s. (Civ. Code, § 1714.21; Health & Saf. Code, § 1797.196; Gov. Code, § 8455.) These statutes reflect legislative policy to encourage the availability of AED’s by providing immunity from liability for those who acquire the devices, when they are used in an attempt to save a life. As we discuss further below, the Legislature has made clear that building owners and managers have no duty in the first instance to acquire and install an AED. (Health & Saf. Code, § 1797.196, subd. (f).) Those who do install AED’s in their buildings will not be liable for damages resulting from the rendering of emergency care with an AED, so long as certain requirements are met, including maintenance, testing, posting and notice. (Health & Saf. Code, § 1797.196, subd. (b)(2)(A), (B), (3) & (4).) The notice that is required is specifically limited to tenants of the building where the AED is located. (Health & Saf. Code, § 1797.196, subd. (b)(3).) The only other notice requirement set ,forth in these statutes is that the person or entity that supplies an AED must notify thé local emergency services agency of its location. (Health & Saf. Code, § 1797.196, subd. (c)(1).) Nothing in these statutes requires that a building owner or manager give notice to particular members of the public expected to use the building. Furthermore, we believe the imposition of such 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.
Second, under the common law of this state, the duty of care of a landlord, based on the special relationship to tenants and invitees, has never been extended to impose an affirmative duty such as appellants seek to impose here, to give notice to prospective invitees of the existence and location of'a medical device. As we shall explain, a landlord has a duty to maintain the premises in a reasonably safe condition and may have a duty to prevent foreseeable harm, such as a criminal attack by a third party, from occurring to those using the premises, or to take certain steps to come to the aid of an
Appellants contend that operators of sports facilities in particular should be duty bound to take affirmative steps to avoid foreseeable injury to participants using the facilities. As we shall discuss, special rules have developed in the law in this area. In the context of sports facilities, those who choose to participate in the sport assume the primary risk of injury inherent in the sport. As to the owner or manager of the facility, courts have found a limited duty to use due care “not to increase the risks to a participant over and above those inherent in the sport.” (Knight v. Jewett (1992)
Appellants also argue that a duty arises in this case because respondents voluntarily acquired an AED; thus, they were duty bound to make the device available for use in an emergency by invitees using the property. But this theory, which is akin to a doctrine known as the “negligent undertaking” doctrine, does not apply in the circumstances here because the two elements underlying the doctrine are not present: respondents’ acquisition of an AED did not increase the risk of harm to those using the facility, and the users of the property did not rely to their detriment on respondents’ undertaking. (Delgado v. Trax Bar & Grill (2005)
Finally, we have carefully considered the various factors that contribute to the policy decision whether a duty should be imposed in particular circumstances, and what the scope of that duty should be. Appellants emphasize that the duty they seek to impose is a minimal one and would contribute greatly to preventing the harm that occurred here by making it more likely that the AED would be used in an appropriate case. We agree that it would be advisable and helpful for operators of sports facilities to develop an emergency plan that includes notice to users of the facility of the availability of lifesaving devices on the premises. However, it would be a significant departure from settled law to create a legal duty that is nowhere defined in the statutes or in common law, and to impose such a duty on countless owners and managers of sports facilities throughout this state. And the goal of encouraging the acquisition and use of AED’s would not necessarily be furthered if those who
For all of these reasons we decline to impose a legal duty where the Legislature has not imposed a duty and where the duty appellants propose is not supported by controlling precedent in the body of common law. Because of the importance of the issues raised by this case, we encourage appellants to seek redress in the Legislature. Our review, however, is limited by doctrines governing our role as an intermediate appellate court. We may not sit as a superlegislature, particularly where our lawmakers have indicated an intent to occupy the field as to the use and regulation of AED’s. And, under the principles of stare decisis, we must defer to California Supreme Court authority defining the limits of duty imposed upon landowners or business operators. (Auto Equity Sales, Inc. v. Superior Court (1962)
BACKGROUND
Appellants are the mother and father of the decedent, Nicholas Rotolo. Respondents are three business entities: San Jose Sports and Entеrtainment, LLC; Silicon Valley Sports and Entertainment, LLC; and San Jose Arena Management, LLC. Respondents operate and control a facility known as Logitech Ice at San Jose (Logitech Ice), which is an ice hockey facility open to the general public and youth hockey clubs as well as professional teams.
On February 5, 2004, 17-year-old Nicholas Rotolo was participating in a hockey tournament game on the south rink at Logitech Ice. During the game, he experienced sudden cardiac arrest and collapsed on the ice. Two event bystanders, both of whom were mothers of other participants in the event, left the stands and responded to the medical emergency. Nancy DePalma held a nursing degree and was licensed in California. Linda Albrecht had completed a “First Responder” course and a “Nurse’s Aid” course. Albrecht assisted DePalma in administering cardiopulmonary resuscitation (CPR) to Nicholas Rotolo.
Someone named “ ‘Amy’ from Logitech Ice” called 911 to report the incident to the appropriate emergency responders. In addition, Kevin Wardlow, a visiting coach for one of the hockey teams, called 911 on his cellular telephone. Both of these calls were made at approximately the same time, shortly after Nicholas Rotolo collapsed.
Respondents had not informed the tournament participants, the coaches, the officials, or the spectators of the existence and location of the AED’s. No one was aware that an AED was installed and available for use close to the south rink. Neither one of the referees officiating the game was aware of the AED. Both Albrecht and DePalma had been trained and certified in the use of AED’s. However, no one informed them that there was an AED nearby. Kevin Wardlow, who placed one of the 911 calls, was asked by the dispatcher whether there was “one of those ‘heart shock boxes’ ” on the premises. Unaware that there was one nearby, Wardlow responded that there was no such device available.
Albrecht and DePalma performed CPR until the arrival of emergency medical personnel, but despite these efforts Nicholas Rotolo did not survive.
The operative pleading here, the third amended complaint, contains one cause of action against respondents for negligence. Appellants' alleged that, based on the special relationship between respondents and invitees on their premises, respondents had a duty to provide information and notice to “invitees, including the participants, officials, coaches and members of organizations that defendants regularly invited to participate in athletic events organized and sponsored by defendants on their premises, as to the existence, availability, location and purpose of all medical emergency response equipment, including the AED units, and to effectively establish, disseminate and set into action a medical emergency response plan in the event of an emergency.” Appellants alleged that the breach of this duty was a proximate cause of Nicholas Rotolo’s death.
We acknowledge, however, that the statutes that have been enacted regarding AED’s reflect a legislative recognition that AED’s can be lifesaving devices, аnd when used properly and in a timely manner can significantly increase the survival rate of victims of cardiac arrest. (See, e.g., Civ. Code, § 1714.21; Health & Saf. Code, § 1797.196; Gov. Code, § 8455.) These statutes, and the legislative history accompanying them, further reflect legislative policy to encourage greater availability of these devices. It is proper in reviewing a demurrer to consider “matters which may be judicially noticed.” (Serrano v. Priest, supra, 5 Cal.3d at p. 591.) Such matters may include the legislative history of pertinent statutes. (Quelimane Co. v. Stewart Title Guaranty Co. (1998)
Civil Code section 1714.21 and Health and Safety Code section 1797.196 were both enacted in 1999. As initially enacted, Civil Code section 1714.21 provided a qualified immunity for any person who in good faith rendered emergency care by the use of an AED at the scene of an emergency, so long as the person had completed a certified basic CPR and AED use course. Health and Safety Code section 1797.196 provided immunity from liability for persons or entities that acquired AED’s, where emergency care was rendered with the AED in accordance with Civil Code section 1714.21, and where “expected AED users” had completed a certified CPR and AED training course. (Health & Saf. Code, former § 1797.196, subd. (b)(3)(A).) In the preamble to Health and Safety Code section 1797.196, the Legislature stated; “It is the intent of the Legislature that an automated external defibrillator may be used for the purpose of saving the life of another person in cardiac arrest when used in accordance with Section 1714.21 of the Civil Code.” (Stats. 1999, ch. 163, § 1.)
In 2002 the Legislature amended both statutes because of public response indicating that conditioning the immunity on “expected AED users” having completed a training course actually discouraged the acquisition and use of AED’s. The synopsis of Assembly Bill No. 2041 (2001-2002 Reg. Sess.), which amended the statutes, explained that the amendment would “encourage greater availability of these apparently ‘fail safe’ life-saving devices in public and private buildings across the state by broadening the scope of the current immunity provided. The bill would grant immunity, regardless of prior training, to all ‘Good Samaritans’ who voluntarily use AED’s at the scene of an emergency who help to try to save someone’s life, and it would also grant immunity to building owners or others who voluntarily acquire such safety devices to potentially save the lives of building tenants and members of the public, if specified safety standards are met.” (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 2041 (2001-2002 Reg. Sess.) as amended Apr. 16, 2002.)
The amended version of Civil Code section 1714.21, which was the relevant version at the time of the incident in this case, thus grants immunity to anyone using an AED in an attempt to save a life, regardless of any prior training. It provides: “Any person who, in good faith and not for compensation, renders emergency care or treatment by the use of an AED at the scene of an emergency is not liable for any civil damages resulting from any acts or omissions in rendering the emergency care.” (Civ. Code, § 1714.21, subd. (b).) As to a person acquiring an AED; the amended statute further provides: “A person or entity that acquires an AED for emergency use pursuant to this section is not liable for any civil damages resulting from any
Health and Safety Code section 1797.196, as amended in 2002, similarly provides that building owners and those who acquirе and install AED’s are not liable for damages resulting from the rendering of emergency care with an AED, without regard to whether the individual using the device has undergone specified training. (Health & Saf. Code, § 1797.196, subd. (b).) Persons or entities acquiring AED’s benefit from the statutory immunity only if certain requirements are met, including the following: complying with regulations governing the placement of the AED (id., subd. (b)(1)); ensuring that the AED is regularly maintained, tested, and checked for readiness (id., subd. (b)(2)(A) & (B)); ensuring that anyone using the AED reports its use and activates emergency medical services (id., subd. (b)(2)(C)); ensuring that at least one employee per AED completes a training course (id., subd. (b)(2)(D)); ensuring that there is a written plan describing procedures to be followed in the event of an emergency that may involve use of an AED (id. subd. (b)(2)(E)); and ensuring that tenants of a building where an AED is placed are notified of its location and receive a brochure describing its use, and that similar information is posted next to an installed AED (id., subd. (b)(3) & (4)). .
Although the statutes provide immunity to those who acquire and install an AED in their buildings in the event the device is used in an emergency situation, the Legislature made clear that it did not intend to impose any duty on building owners and managers to acquire AED’s in the first place. Subdivision (f) of Health and Safety Code section 1797.196 provides: “[n]othing in this section or Section 1714.21 may be construed to require a building owner or a building manager to acquire and have installed an AED in any building.”
For reference, we include the full text of the two statutes in the appendix, post.
ARGUMENT
I. Standard of Review
On appeal from a judgment of dismissal after a demurrer is sustained without leave to amend, the reviewing court assumes the truth of all facts properly pleaded by the plaintiff. (Evans v. City of Berkeley (2006)
“As a general rale, if there is a reasonable possibility the defect in the complaint could be cured by amendment, it is an abuse of discretion to sustain a demurrer without leave to amend.” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998)
Furthermore, “[t]he question of the existence of a legal duty of care in a given factual situation presents a question of law which is to be determined by the courts alone.” (Nichols v. Keller (1993)
II. Statutory Duty—Legislative Intent
Appellants concede that Civil Code section 1714.21 and Health and Safety Code section 1797.196, the two statutes summarized above, do not expressly impose a duty on the part of building owners and operators of businesses who
As appellants point out, Health and Safety Code section 1797.196 provides that, in order to benefit from the statutory immunity, a building owner acquiring an AED must satisfy specified maintenance and reporting requirements, must notify tenants of the location and proper use of the AED, must ensure that at least one employee for every AED completes an appropriate training course, and must develop a written plan describing procedures to be followed in the event of an emergency that may involve the use of an AED. (Health & Saf. Code, § 1797.196, subds. (b) & (c).) These provisions, appellants argue, indicate an intent on the part of the Legislature to ensure that immediate and effective assistance can be made readily available to persons who might suffer from cardiac arrest. It follows, in appellants’ view, that imposing a duty in this case on the operators of an ice hockey rink to notify league officials and coaches of the existence and location of the AED’s on the premises would directly further this legislative intent.
Respondents, on the other hand, argue that this court should not insert into the immunity statutes an additional requirement that is not contained, or even implied, therein. In respondents’ view, the statutes were intended to encourage the installation аnd use of AED’s by providing immunity from liability for damages resulting from the use of an AED in an emergency situation. If the statutes were read to impose additional duties of notice on those who voluntarily acquire and install AED’s, respondents argue, this would tend to discourage building owners from acquiring AED’s, and thus would not further the purpose of encouraging the proliferation of these lifesaving devices. The Legislature expressly declined to create a duty on the part of building owners to acquire or install AED’s. Subdivision (f) of section 1797.196 provides that “[n]othing in this section or Section 1714.21 may be construed to require a building owner or a building manager to acquire and have installed an AED in any building.” Respondents argue that since the Legislature provided that building owners and managers have no duty to acquire and install an AED in their buildings, the Legislature cannot have intended that those who do acquire, install and maintain such devices in accordance with the statutory requirements could be vulnerable to liability if the device is not used.
In determining legislative intent, which is our primary task in interpreting a law, we look first to the language of the statute. “Where possible, ‘we follow the Legislature’s intent, as exhibited by the plain meaning of the actual words of the law ....’” (Jarrow Formulas, Inc. v. LaMarche (2003)
Appellants argue that such a duty would further the purpose of the statutes, namely to encourage the use of AED’s to save lives. They contend that this court should “fill' a void that the Legislature has failed to fill but that is consistent with policies it has expressed.” However, we have no power to rewrite a statute by implying additional provisions we believe would further legislative purpose. (Jarrow Formulas, Inc. v. LaMarche, supra,
“When one part of a statute contains a term or provision, the omission of that term or provision from another part of the statute indicates the Legislature intended to convey a different meaning.”1 (Cornette v. Department of Transportation (2001)
There is precedent for courts to recognize a duty under common law that is independent of a legislative scheme but consistent with it. (See, e.g., Greenman v. Yuba Power Products, Inc. (1963)
“As a general principle, ‘a defendant owes a duty of care to all persons who are foreseeably endangered by his [or her] conduct, with respect to all risks which make the conduct unreasonably dangerous.’ ” (Tarasoff v. Regents of University of California (1976)
Although the general rule of nonliability is that “no one is required to save another from a danger which is not of his making” (Andrews v. Wells (1988)
A special relationship has been found to exist between a property owner or manager and invitees, such as that between the operator of a bar or restaurant and patrons of the business (Delgado, supra,
We will discuss thеse doctrines as applied to the circumstances of this case, and then respond to appellants’ general policy arguments in support of imposition of a duty in this case.
A. Special Relationship—Premises Liability
Courts have found that a “ ‘special relationship’ ” exists between business proprietors and their patrons or invitees (Ann M., supra,
For example, in Frances T., supra,
Similarly in Ann M., supra, 6 Cal.4th 666, the court found that the proprietors of a shopping center had a “general duty of maintenance, which is
In Sharon P. v. Arman, Ltd., supra,
Appellants reason from the principles expressed in these cases. They point out, and respondents concede, that a “special relationship” existed between respondents, who operated the Logitech Ice facility, and the sports participants playing hockey at the facility. Based on this special relationship, appellants argue that respondents had a duty to undertake affirmative and “relatively simple measures” to prevent foreseeable harm, namely the death of a participating athlete from cardiac arrest. (Delgado, supra,
We disagree, for several reasons. First, knowledge of statements made in various sports journals and other publications cannot be imputed to respondents. As we have noted, in reviewing a judgment entered upon the sustaining of a demurrer, we do not, accept as true “ 1 “contentions, deductions or conclusions of fact or law.” ’ ” (Evans v. City of Berkeley, supra,
Furthermore, even if it can be reasonably inferred from respondents’ acquisition of the AED’s for their facility 1) that they were aware that cardiac arrest can occur among athletes and 2) that they 'were further aware that the timely use of an AED can increase the chances of resuscitating a victim of cardiac arrest, these circumstances do not bring this case within the rules set forth in the premises liability cases discussed above. Those cases involve a proprietor’s duty to take steps to prevent harm from occurring to its patrons as a result of foreseeable criminal conduct by others. As the court, found in Frances T, a defendant’s failure, to provide lighting in common areas, knowing that the lack of lighting was linked to criminal activity, could constitute a breach of duty. Here, however, although cardiac arrest among athletes may be foreseeable, the occurrence of such an injury cannot be prevented or protected against by any precautionary measures taken by the operators of the premises. Rather, an injury of this nature is a risk inherent in
Appellants further contend, however, that respondents’ general duty to maintain a safe facility for the athletes using its facility included taking steps to ensure that in the event an athlete did suffer from cardiac arrest, the AED would be used in a timely manner. Appellants argue that even where a property owner or proprietor has not created the peril or increased the risk of harm to a patron, courts have found a special-relationship-based duty to act in the face of imminent danger or ongoing harm to a patron or invitee on the property. Two recent Supreme Court cases discuss the duty imposed in such circumstances. In Delgado, supra,
In Delgado, the defendant bar owner had hired a security guard, who became aware that hostilities were mounting between the plaintiff and another group of customers in the bar and decided to separate them by asking the plaintiff to leave. However, the guard took no further action when the other customers followed the plaintiff outside. The plaintiff was subsequently attacked and beaten in the parking lot. The court found under these circumstances that because the defendant had actual notice of an impending assault involving a bar patron, “it's special-relationship-based duty included an obligation to take reasonable, relatively simple, and minimally burdensome steps to attempt to avert that danger.” (Delgado, supra,
In the companion case, Morris, supra,
Appellants rely on Delgado and Morris, and on several prior Supreme Court cases where the court reaffirmed the basic principle that proprietors of businesses owe a duty to invitees to protect them from foreseeable harm. (See Lopez v. Southern Cal. Rapid Transit Dist. (1985)
We do not believe the Delgado and Morris cases support imposition of the duty appellants propose here. First, both Delgado and Morris involved patrons of a bar or restaurant being injured by third parties in a fight outside the establishment. A somewhat different duty analysis applies in those cases. In Delgado, the court found certain characteristics of the special relationship are “especially relevant” to the duty determination. For instance, in circumstances where a proprietor serves alcohol on the premises, there is a preexisting affirmative duty to exercise reasonable care to protect its patrons from injury at the hands of fellow guests, who may have become inebriated. (Delgado, supra,
Courts have not required more from the proprietor of a business where a patron becomes ill or has a medical emergency on the premises. As the court stated in Delgado, “it long has been recognized that restaurant proprietors have a special-relationship-based duty to undertake relatively simple measures such as providing ‘assistance [to] their customers who become ill or need medical attention and that they are liable if they fail to act.’ [Citations.] . . . Such measures may include telephoning the police or 911 for assistance.” (Delgado, supra, 36 Cal.3th at p. 241.) The case cited by the court in Delgado for this proposition is Breaux, supra,
Similarly, in the case before us the Legislature has limited the duties of a building owner with respect to providing assistance with an AED. First, there is no duty to acquire an AED or have it available. Second, if there is an AED, and if injury results from its use, the owner is not liable if the owner complies with certain statutory requirements. Here, as in Breaux, respondents are not in violation of any statutory duty. Under Breaux, which was cited with approval by the Supreme Court in Delgado, the sole duty based on the special relationship of the premises owner towards invitees- to provide assistance in the face of a medical emergency was to summon emergency services. The record here indicates that a number of people, including “ ‘Amy’ from Logitech Ice,” called 911 to summon emergency services shortly after Nicholas Rotolo collapsed on the ice. The law does not extend the duty of a business owner any further than this.
Appellants argue that the duty in this case was not to protect patrons from foreseeable harmful conditions on the premises, or to respond to a medical emergency; rather, the nature of the duty here was to institute reasonable measures that would minimize the effects of the foreseeable harm. One such reasonable measure would be to notify specific persons using the sports facility of the existence and location of AED’s, so that the devices would be more likely to be used in the event an athlete suffers cardiac arrest. We have found no precedent for extending the special relationship doctrine in this fashion. The limits of the special relationship doctrine, as the cases illustrate, are that a person in control, of property must maintain the property in “a reasonably safe condition.” (Sharon P., supra,
B. Duties of the Operator of a Sports Facility
Appellants point out that in the sports context, recent trends in the law recognize legal duties on the part of the operators of sports facilities to ensure participant safety. (See, e.g., Leon v. Family Fitness Center (#107), Inc. (1998)
Although appellants rely on the special relationship doctrine to argue that Logitech Ice had an affirmative duty to provide a safe arena for participating athletes, the cases cited by appellants in support of this argument are not based on the special relationship doctrine. Instead, recognizing that a person who participates in a sport assumes the risk of an injury incurred while playing the sport, these cases analyze the scope of the duty of operators of a sports facility by applying comparative fault principles under a doctrine known as the secondary assumption of risk doptrine. In other words, although a plaintiff primarily assumes the “risks inherent in the sport itself,” defendants also have a “duty to use due care, not to increase the risks to a participant over and above those inherent in the sport.” (Knight v. Jewett, supra, 3 Cal.4th at pp. 315-316; see also Nemarnik v. Los Angeles Kings Hockey Club (2002)
The cases relied upon by appellants illustrate the application of this secondary assumption of risk doctrine. In Morgan v. Fuji Country USA, Inc., supra,
Because participants in a sport assume the risk of injury inherent in the sport, cases discussing the nature of the duty of operators of sports facilities have applied this secondary assumption of risk analysis, rather than general principles of premises liability. (See Capri v. L.A. Fitness International, LLC, supra,
The doctrine of secondary assumption of risk results in apportioning responsibility where it is found that the owner or operator of a sports facility has contributed to the harm by designing or maintaining a facility in such a way as to unreasonably increase the risks inherent in the sport. The doctrine does not apply here, and appellants have not pleaded facts to support it. There is no allegation that respondents maintained their facility in an unsafe manner or unreasonably increased the risk that the athletes using it would succumb to cardiac arrest, as Nicholas Rotolo did. Appellants concede as much. As appellants themselves have emphasized, sudden cardiac arrest is a risk inherent in playing strenuous sports.
Since the primary assumption of risk doctrine bars recovery for injuries arising from risks inherent in the sport, appellants seek to impose liability on respondents here on the basis of a special-relationship-based duty. However, imposition of such a duty would require respondents, who are not responsible for the injury, to take steps to prevent those who do suffer such injury from experiencing the severe consequences of it. Appellants seek to recharacterize the nature of the “injury” here. The injury is not, they argue, the cardiac arrest suffered by the athlete. Rather the risk of injury is that athletes could suffer serious, and perhaps fatal, consequences from an incident of cardiac arrest. Respondents’ failure to give notice of the AED’s thus increased this risk of harm. We have found no authority for the proposition that a sports facility operator has a duty to reduce the effects of an injury that is an inherent risk in the sport, or to increase the chances of full recovery of a participant who has suffered such a sports-related injury, or to give notice
C. Negligent Undertaking
A further exception to the general rule that there is no duty to take affirmative action to assist or protect another is the so-called “negligent undertaking” doctrine. Under this doctrine, courts have found that a duty may be created or assumed where a person who otherwise has no duty to act “undertakes to come to the aid of another.” (Williams, supra,
While not invoking this doctrine by name, appellants’ pleading contains the elements of it. Their third amended complаint alleges that “[b]y acquiring and installing the AED unit, defendants voluntarily assumed a duty to use reasonable care in the method by which they made such equipment available for use by those present at the time of an emergency.” Appellants contend that, like the defendant in Delgado who voluntarily hired security guards to protect bar patrons from harm, respondents here voluntarily took steps to maintain a safe environment for the athletes by acquiring and installing AED’s. Therefore, they were under a duty to make reasonable use of the AED’s in order to save lives, the purpose for which they were intended, just as the defendant in Delgado assumed a duty to use the security guards in a reasonable fashion to protect its patrons from criminal assault.
Even if we were to accept the proposition that respondents’ acquisition of an AED amounted to an undertaking to come to the aid of another, within the meaning of the doctrine, appellants’ analogy to Delgado does not withstand scrutiny. The court in Delgado did not apply the negligent undertaking doctrine in reaching its result. The court in fact rejected the argument that, by undertaking to hire a guard, a proprietor necessarily assumes a duty to ensure that the guard protects its patrons. (Delgado, supra, 36 Cal.4th at pp. 249-250.) The court found instead that the duty arose in that case because the guard was aware of specific facts indicating that a particular patron would
Furthermore, the other components of the negligent undertaking doctrine are lacking here. Although respondents had no duty to acquire and install the AED’s in their facility, and voluntarily undertook to do so, this conduct did not in any way “increase[] the risk of harm” to Nicholas Rotolo or the other participants using the. facility. (Delgado, supra, 36 Cal.4th at p. 250.) And since neither Rotolo nor anyone else participating in or watching the hockey game knew about the AED’s, it cannot be said that they “reasonably relied” on respondents’ conduct. (Ibid.)
Finally, we note that the negligent undertaking doctrine' is not favored in the law, and many cases discussing its principles, including Delgado, have refused to apply it. (See Williams, supra,
D. Rowland v. Christian Factors
The existence and scope of a duty is essentially a policy decision involving the balancing of a number of considerations. (Bily v. Arthur Young & Co. (1992)
Even assuming, however, that respondents possessed a general knowledge that athletes may succumb to sudden cardiac arrest during strenuous activities, they could not have prevented such an occurrence, which is a risk assumed by those playing the sport. There is therefore no close connection between anything respondents did or did not do and the injury suffered by Nicholas Rotolo that led to his death. The fаct that statistically the chances of surviving an incident of cardiac arrest are increased by the timely use of a defibrillator, even if this knowledge is imputed to respondents, does not give rise to a duty on respondents’ part to take affirmative steps to ensure that the device will be used in appropriate circumstances, particularly considering that the Legislature expressly has found no duty to acquire or install an AED in the first place. Furthermore, appellants’ foreseeability argument neglects to take into account either the limitations on the duty imposed on the operator of a sports facility “to use due care not to increase the risks to a participant over and above those inherent in the sport,” (Knight v. Jewett, supra, 3 Cal.4th at pp. 315-316) or the limitations on the duty of a proprietor of a business to provide assistance to a patron experiencing a medical emergency. (Breaux, supra,
Appellants also argue that respondents bear moral blame for failing to implement an emergency response plan to inform league officials and coaches of the availability of the AED, thus making it more likely that the device would have been available for use to resuscitate Nicholas Rotolo. However, this factor in the duty analysis is intended to describe a high degree of moral culpability beyond that associated with ordinary negligence. “ ‘Moral blame has been applied to describe a defendant’s culpability in terms of the defendant’s state of mind and the inherently harmful nature of the defendant’s acts. To avoid redundancy with the other Rowland factors, the moral blame that attends ordinary negligence is generally not sufficiеnt to tip the balance of the Rowland factors in favor of liability. [Citation.] Instead, courts have required a higher degree of moral culpability such as where the
Appellants argue that imposing a minimal duty upon operators of sports facilities to notify specified users of the facility of the availability of AED’s will further the policy of preventing harm, by making it more likely that these lifesaving devices will actually be used to resuscitate victims of cardiac arrest. On the other hand, imposing duties of notice on countless building owners throughout the state, in addition to the requirements expressly set forth in the statutes regulating the use of AED’s, could easily discourage building owners from acquiring the devices in the first place, because of the possibility of incurring liability for failing to take some action that is nowhere defined or described in the statutes or in common law. The Legislature has clearly expressed that owners and managers of property do not have a duty to acquire AED’s. (Health & Saf. Code, § 1797.196.) But it has sought to encourage acquisition of AED’s by delimiting the duties of the building owner and by providing unqualified immunity from liability resulting from the use of an AED, if certain requirements are met. The goal of encouraging building owners to acquire and install AED’s, even though they have no duty to do so, would not be furthered if courts were to impose duties on building owners acquiring AED’s beyond thosе delineated in the statutes, thus creating uncertainty as to the scope of the immunity provided. Imposing the duty appellants propose would create the anomalous result that building owners who do not acquire AED’s would have no potential for liability if a person dies as a result of cardiac arrest in their building, whereas an owner who does acquire an AED, but fails to give notice or gives incomplete or improper notice, could be liable. We do not believe public policy is served by such a result.
Appellants contend that the duty of notice they seek to impose here is “minimally burdensome” (Delgado, supra,
IV. Summary
The Legislature, in order to encourage the proliferation of AED’s, has provided that owners and operators of buildings who voluntarily acquire and install AED’s are immune from liability for damages resulting from the use of an AED in an еmergency situation, provided that they meet certain specified requirements. Consistent with the purpose of encouraging building owners to install AED’s, the history of Civil Code section 1714.21 and Health & Safety Code section 1797.196 reflects an intent to provide the broadest possible immunities to them. The statutes are detailed and contain several provisions governing who must give notice and the types of notice required. (Health & Saf. Code, § 1797.196, subds. (b)(3), (4), (c)(1). Nothing in the statutes imposes a duty on building owners to give notice of the existence or location of the installed AED’s, such as that proposed by appellants. We conclude that the Legislature cannot have intended to impose such a duty, and that such a duty does not necessarily further the legislative purpose of promoting the acquisition of these lifesaving devices.
In the common law, a property owner is found to have a special relationship with patrons or invitees using the property, giving rise to a duty to maintain property in a reasonably safe condition, and in some cases to prevent foreseeable harm by others to patrons or invitees. (Frances T., supra,
The judgment is affirmed.
Duffy, J., concurred.
Notes
It is unclear from the record whether these were acquired by the City of San Jose, which was the owner of the property, or by respondents, who were the operators of the facility.
Although the duty alleged by appellants in their third amended complaint was a broad duty to notify various categories of users of the facility of all medical emergency response equipment, including AED’s, appellants subsequently narrowed their argument in opposition to the demurrer and here on appeal. Here they argue for a more limited duty: to notify league officials and coaches of the existence and location of any onsite AED’s.
The trial court granted respondents’ motion to strike these portions of the second amendéd complaint when it sustained the demurrer to that complaint with leave to amend. Respondents renewed their motion with respect to the third amended complaint. However, instead of granting the motion, the court found that it was moot in light of the order sustaining the demurrer without leave to amend.
By order dated July 20, 2006, wе granted appellants’ request that we take judicial notice of a portion of the legislative history of Assembly Bill No. 2041 (2001-2002 Reg. Sess.), amending the pertinent statutes. On November 22, 2006, simultaneously with the filing of their reply brief, appellants submitted a further request for judicial notice of additional items of legislative history. We will grant this request, notwithstanding its untimeliness. However, to the extent that appellants raise new arguments in their reply brief that are based on these additional materials, we will not consider them. Points raised for the first time in a reply brief need not be considered, as this practice deprives respondent of the opportunity to address and counter the arguments. (Feitelberg v. Credit Suisse First Boston, LLC (2005)
It is not alleged that respondents were the suppliers of an AED, subject to subdivision (c)(1) of Health and Safety Code section 1797.196. According to respondents, the AED’s in this case were supplied by the San Jose Fire Department.
Appellants’ out-of-state cases also involve the heightened duties of care of a school in the event of an injury to a student athlete. (Kleinknecht v. Gettysburg College (3d Cir. 1993)
This section is now contained in Health and Safety Code section 114180.
Dissenting Opinion
I respectfully dissent.
This is not a case about the immunity statutes related to the acquisition and use of an automatic external defibrillator (AED). This is not a case about assumption of risk inherent in sports activities. This is not a case ábout a third party criminal attack or an ill restaurant customer.
This case involves a business entity that invites patrons to use its facilities for an activity known to have a high risk of injury—ice hockey—yet fails to have an emergency response plan in place in the event of injury and fails to inform those engaged in or supervising such high-risk activity of an emergency plan or the availability of emergency equipment in the event of injury.
“A possessor of land who holds it open to the public” is under a duty to “members of the public who enter in response to [the possessor’s] invitation” to “protect them against unreasonable risk of physical harm, and . . . to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.” (Rest.2d Torts, § 314A.)
Our Supreme Court has recognized the “special relationship” that exists between business proprietors and their patrons and invitees! (Delgado v. Trax Bar & Grill (2005)
The operative pleadings here (plaintiffs’ third amended complaint and various judicially noticed discovery responses)
Recognizing a duty on the part of the ice hockey rink under the circumstances alleged here is consistent with the principles expressed by the California Supreme Court. On balance, the factors to be considered in analyzing the existence and scope of a duty, as set forth in the landmark case of Rowland v. Christian (1968)
It should be noted that my analysis places no weight on whether defendant installed an AED or not. I acknowledge there is no duty to acquire and use an AED under Civil Code section 1714.21 and Health and Safety Code section 1797.196. In spite of any argument plaintiffs may have made as to a more limited duty, my analysis focuses on the failure to have an emergency plan or to disseminate information concerning the location and availability of whatever emergency equipment may have been present at the ice rink (whether an AED or any other equipment) in the face of high-risk activity resulting in injury.
Appellants’ petition for review by the Supreme. Court was denied August 15, 2007, S153997. Kennard, J., was of the opinion that the petition should be granted.
Civil Code section 1714.21 provides:
“(a) For purposes of this section, the following definitions shall apply:
“(1) ‘AED’ or ‘defibrillator’ means an automated or automatic external defibrillator.
“(2) ‘CPR’ means cardiopulmonary resuscitation.
“(b) Any person who, in good faith and not for compensation, renders emergency care or treatment by the use of an AED at the scene of an emergency is not liable for any civil damages resulting from any acts or omissions in rendering the emergency care.
“(c) A person or entity who provides CPR and AED training to a person who renders emergency care pursuant to subdivision (b) is not liable for any civil damages resulting from any acts or omissions of the person rendering the emergency care.
“(d) A person or entity that acquires an AED for emergency use pursuant to this section is not liable for any civil damages resulting from any acts or omissions in the rendering of the emergency care by use of an AED, if that person or entity has complied with subdivision (b) of Section 1797.196 of the Health and Safety Code.
“(e) A physician who is involved with the placement of an AED and any person or entity responsible for the site where an AED is located is not liable for any civil damages resulting from any acts or omissions of a person who renders emergency care pursuant to subdivision (b), if that physician, person, or entity has complied with all of the requirements of Section 1797.196 of the Health and Safety Code that apply to that physician, person, or entity.
“(f) The protections specified in this section do not apply in the case of personal injury or wrongful death that results from the gross negligence or willful or wanton misconduct of the person who renders emergency care or treatment by the use of an AED.
“(g) Nothing in this section shall relieve a manufacturer, designer, developer, distributor, installer, or supplier of an AED or defibrillator of any liability under any applicable statute or rule of law.”
Health and Safety Code section 1797.196 provided in 2004, at the time of the incident on which this lawsuit is based, as follows:
“(b) In order to ensure public safety, any person or entity that acquires an AED is not liable for any civil damages resulting from any acts or omissions in the rendering of the emergency care under subdivision (b) of Section 1714.21 of the Civil Code, if that person or entity does all of the following:
“(1) Complies with all regulations governing the placement of an AED.
“(2) Ensures all of the following:
“(A) That the AED is maintained and regularly tested according to the operation and maintenance guidelines set forth by the manufacturer, the American Heart Association, and the American Red Cross, and accоrding to any applicable rules and regulations set forth by the governmental authority under the federal Food and Drug Administration and any other applicable state and federal authority.
“(B) That the AED is checked for readiness after each use and at least once every 30 days if the AED has not been used in the preceding 30 days. Records of these checks shall be maintained.
“(C) That any person who renders emergency care or treatment on a person in cardiac arrest by using an AED activates the emergency medical services system as soon as possible, and reports any use of the AED to the licensed physician and to the local EMS agency.
“(D) For every AED unit acquired up to five units, no less than one employee per AED unit shall complete a training course in cardiopulmonary resuscitation and AED use that complies with the regulations adopted by the Emergency Medical Service Authority and the standards of the American Heart Association or the American Red Cross. After the first five AED units are acquired, for each additional five AED units acquired, one employee shall be trained beginning with the first AED unit acquired. Acquirers of AED units shall have trained employees who should be available to respond to an emergency that may involve the use of an AED unit during normal operating hours.
“(E) That there is a written plan that describes the procedures to be followed in the event of an emergency that may involve the use of an AED, to ensure compliance with the requirements of this section. The written plan shall include, but not be limited to, immediate notification of 911 and trained office personnel at the start of AED procedures.
“(4) No less than once a year, building owners will notify their tenants as to the location of AED units in the building.
“(c) Any person or entity that supplies an AED shall do all of the following:
“(1) Notify an agent of the local EMS agency of the existence, location, and type of AED . acquired.
“(2) Provide to the acquirer of the AED all information governing the use, installation, operation, training, and maintenance of the AED.
“(d) A violation of this provision is not subject to penalties pursuant to Section 1798.206.
“(e) The protections specified in this section do not apply in the case of personal injury or wrongful death that results from the gross negligence or willful or wanton misconduct of the person who renders emergency care or treatment by the use of an AED.
“(f) Nothing in this section or section 1714.21 may be construed to require a building owner or a building manager to acquire and have installed an AED in any building.
“(g) This section shall remain in effect only until January 1, 2008, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2008, deletes or extends that date.”
Health and Safety Code section 1797.196 was amended in 2005 to add a subdivision specifically regarding AED’s in public or private schools (new subd. (b)(5)), and to make some minor changes in wording. It was again amended in 2006 to extend the sunset date.
The trial court granted defendants’ request for" judicial notice of plaintiffs’ prior pleadings and certain discovery responses. This is not an issue on appeal.
The issue of any duty of protection and assistance imposed on those sponsoring or officiating this high-risk activity is not before us.