MICHAEL VERDUGO et al., Plaintiffs and Appellants, v. TARGET CORPORATION, Defendant and Respondent.
No. S207313.
Supreme Court of California
June 23, 2014.
312
Tarkington, O‘Neill, Barrack & Chong, Robert A. Roth; Law Offices of David G. Eisenstein and David G. Eisenstein for Plaintiffs and Appellants.
Greene Broillet & Wheeler, Bruce A. Broillet, Alan Van Gelder; Heimberg Barr and Marsha Barr-Fernandez for Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiffs and Appellants.
Mary M. Newman for Sudden Cardiac Arrest Foundation as Amicus Curiae on behalf of Plaintiffs and Appellants.
Mayer Brown, Richard Caldarone, Donald M. Falk and Foster C. Johnson for Defendant and Respondent.
Luke Wake and Deborah J. La Fetra for National Federation of Independent Business, Small Business Legal Center and Pacific Legal Foundation as Amici Curiae on behalf of Defendant and Respondent.
Jackson Lewis, Dylan B. Carp and Sherry L. Swieca for Retail Litigation Center, Inc., and California Retailers Association as Amici Curiae on behalf of Defendant and Respondent.
Erika C. Frank and Fred J. Hiestand for the California Chamber of Commerce and the Civil Justice Association of California as Amici Curiae on behalf of Defendant and Respondent.
Munger Tolles & Olson, Fred A. Rowley, Jr., and John P. Mittelbach for the Chamber of Commerce of the United States of America and the American Tort Reform Association as Amici Curiae on behalf of Defendant and Respondent.
OPINION
CANTIL-SAKAUYE, C. J.—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. (
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.
I. Summary of Facts and Federal Court Proceedings
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. (
II. Brief Overview of Sudden Cardiac Arrest and AEDs
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 eleсtrical 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‘s 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].)
A. General California AED statutes—Civil Code section 1714.21 and Health and Safety Code section 1797.196
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—
In addition to setting forth the requirements that an acquirer of an AED must satisfy in order to obtain immunity from liability under
B. AEDs and health studios—Health and Safety Code section 104113
In addition to the provisions of
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.
“(3) When an AED is placed in a building, building owners shall ensure that tenants annually receive a brochure, approved as to content and style by the American Heart Association or American Red Crоss, which describes the proper use of an AED, and also ensure that similar information is posted next to any installed AED.
“(4) When an AED is placed in a building, no less than once a year, building owners shall notify their tenants as to the location of AED units in the building.
“(5) When an AED is placed in a public or private K-12 school, the principal shall ensure that the school administrators and staff annually receive a brochure, approved as to content and style by the American Heart Association or the American Red Cross, that describes the proper use of an AED. The principal shall also ensure that similar information is posted next to every AED. The principal shall, at least annually, notify school employees as to the location of all AED units on the campus. The principal shall designate the trained employees who shall be available to respond to an emergency that may involve the use of an AED during normal operating hours. As used in this paragraph, ‘normal operating hours’ means during the hours of classroom instruction and any school-sponsored activity occurring on school grounds.”
Health studios are currently the only nonmedical setting in which California statutes or regulations require that AEDs be provided.10
C. AEDs in state buildings—Government Code section 8455
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.
IV. Do the Current California Statutes Relating to AEDs Preclude Courts from Determining Whether Target‘s Common Law Duty of Care to Its Business Patrons Includes an Obligation to Provide an AED for Use in an Emergency?
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 рreclude such a common law requirement. We discuss each of these separate theories in turn.
A. Does Health and Safety Code section 1797.196, subdivision (f), explicitly preclude recognition of a common law requirement to provide an AED?
Target initially contends that the Legislature‘s enactment of
Past California decisions recognize that “[a]s a general rule, ‘[u]nless expressly provided, statutes should not be interpreted to alter the common law, and should be construed to avoid conflict with common law rules.‘” (California Assn. of Health Facilities v. Department of Health Services (1997) 16 Cal.4th 284, 297.) “Accordingly, ‘[t]here is a presumption that a statute does not, by implication, repeal the common law. [Citation.] Repeal by implication is recognized only where there is no rational basis for harmonizing two potentially conflicting laws.‘” (Ibid.) Although
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 (Rotolo) and Breaux v. Gino‘s, Inc. (1984) 153 Cal.App.3d 379 (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
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
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
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—
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 (
For the reasons discussed above, we conclude that the language of
B. Do the current California AED statutes reflect a legislative intent to “occupy the field” with regard to AEDs and thus implicitly preclude recognition of a common law duty to acquire and make available an AED?
As already noted, in addition to relying upon
to acquire or make available an AED for the use of its customers in a medical emergency, either generally or in particular circumstances. As explained, we conclude that current California AED statutes do not support this claim.
As this court observed in I. E. Associates v. Safeco Title Ins. Co. (1985) 39 Cal.3d 281, 285 [216 Cal.Rptr. 438, 702 P.2d 596]: “The general rule is that statutes do not supplant the common law unless it appears that the Legislature intended to cover the entire subject or, in other words, to ‘occupy the field.’ [Citations.] ‘[G]eneral and comprehensive legislation, where course of conduct, parties, things affected, limitations and exceptions are minutely described, indicates a legislative intent that the statute should totally supersede and replace the common law dealing with the subject matter.’ ”
We conclude that the current California AED statutes do not evince any such legislative intent. The principal general AED statutes—
In addition to the statutory provisions affording civil immunity to those who acquire AEDs under specified circumstances, the Legislature has enacted one statutory provision—
Finally, the Legislature‘s enactment of
In addition to relying upon the Legislature‘s enactment of
In sum, we conclude that the current California AED statutes do not constitute the type of ” ‘[g]eneral and comprehensive legislation, where course of conduct, parties, things affected, limitations and exceptions are minutely described’ ” (I. E. Associates v. Safeco Title Ins. Co., supra, 39 Cal.3d at p. 285, italics added) so as to indicate that the Legislature intended the statutes to totally supersede and preclude any operation of general common law tort principles with regard to the acquisition and provision of AEDs. Accordingly, we conclude that the California AED statutes, when viewed as a whole, do not fully “occupy the field” and thereby implicitly preclude California courts from determining whether, under California common law, Target‘s common law duty of reasonable care to its patrons includes an obligation to acquire and make available an AED for use in a medical emergency.15
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 mеan that in considering whether such a common law duty should be recognized, courts should not take into account the existing
V. Under California Law, Does Target Have a Common Law Duty to Acquire and Make Available One or More AEDs to Aid a Patron in a Medical Emergency?
In analyzing the scope of the common law duty of reasonable care that a business entity owes to its patrons or customers to determine whether that duty includes an obligation to acquire and make available an AED, we begin with the well-established principle, set forth in the governing California cases, that whereas, as a general rule, an individual or entity does not have a duty under the common law to come to the aid of another person whom the individual or entity has not injured (the general no-duty-to-rescue rule; see Rest.2d Torts, § 314),16 a different rule is applicable with regard to the common law duty that a business entity owes to its patrons on its business premises. Because of the so-called “special relationship” between a business entity and its patrons, past California cases have recognized that a business may have a duty, under the common law, to take reasonable action to protect or aid patrons who sustain an injury or suffer an illness while on the business‘s premises, including “undertak[ing] relatively simple measures such as providing ‘assistance [to] their customers who become ill or need medical attention.’ ” (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 241 [30 Cal.Rptr.3d 145, 113 P.3d 1159] (Delgado); see Breaux, supra, 153 Cal.App.3d at p. 382; De Vera v. Long Beach Pub. Transportation Co. (1986) 180 Cal.App.3d 782, 793-794 [225 Cal.Rptr. 789]; see generally Rest.2d Torts, § 314A.)17
All the parties in this case agree that, under California law, Target has a common law duty to provide at least some assistance to a patron who suffers a sudden cardiac arrest while shopping at a Target store. The parties sharply disagree, however, as to the scope of that duty. Target maintains that its employees fully satisfied its common law duty of reasonable care by immediately summoning emergency medical personnel upon learning of the patron‘s collapse, and that at most it might be required to provide simple first aid measures but that it had no duty to acquire an AED in advance of the incident for potential use in the event of such a medical emergency. By contrast, plaintiffs assert that because of the important potentially lifesaving role that an AED may play in the event of sudden cardiac arrest, the size of the Target store in question, the number of customers who patronize the store, and the relatively low cost of an AED device, Target‘s common law duty of reasonable care to its patrons included an obligation to obtain an AED, and that a jury could properly find that Target acted unreasonably and negligently in failing to do so and that such negligence was a substantial cause of the sudden cardiac arrest victim‘s death.
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.18
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 relationshiр 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 considering the scope of a business‘s common law duty to take reasonable steps to protect the health of its patrons while the patrons are on the business‘s premises, we draw a comparable distinction between (1) a business‘s common law duty to take precautionary steps prior to the time such an injury or illness has occurred in light of the foreseeability that such an injury or illness may occur and (2) a business‘s common law duty to act to assist a patron from an ongoing threat to the patron‘s health and safety after the patron has experienced an injury or illness on the business‘s premises.
In the present case, plaintiffs do not claim that Target failed to take adequate steps to protect its patron after she suffered suddеn 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.)19 If the relative burden of providing a particular precautionary safety or security measure is onerous rather than minimal, the governing cases have held that absent a showing of a “heightened” or “high degree” of foreseeability of the danger in question, it is not appropriate for courts to recognize or impose a common law duty to provide the measure. (See, e.g., Ann M., supra, at p. 679; Delgado, supra, at pp. 243–244, fn. 24; Castaneda v. Olsher, supra, at p. 1213.) These decisions implicitly recognize that, in the absence of such heightened foreseeability, the determination whether a business (or businesses
Therе 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.20 For purposes of resolving the issue before us in this case, however, we need go no further than to conclude that, as in the criminal assault cases, when the precautionary medical safety measures that a plaintiff contends a business should have provided are costly or burdensome rather than minimal, the common law does not impose a duty on a business to provide such safety measures in the absence of a showing of a heightened or high degree of foreseeability of the medical risk in question. In the absence of at least a showing of heightened foreseeability of the particular medical risk at issue, the policy decision whether a particular type of business (or businesses in general) should be required to provide a costly or burdensome precautionary safety measure for use in the event of a possible medical emergency resulting from a patron‘s medical condition is appropriately made by the Legislature, rather than by a jury on a case-by-case basis guided only by a general, unfocused “reasonable care” standard after a medical emergency has already occurred.
In their briefing at earlier stages of this litigation, plaintiffs maintained that requiring a business to acquire and make available an AED would imposе 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
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.22 Furthermore, plaintiffs argue in their brief that death is especially likely to result from sudden cardiac arrest that occurs in a big-box store “because it is impossible for emergency crews to reach a stricken invitee in time” in a large, heavily trafficked building. There is nothing, however, to suggest that the risk of death from sudden cardiac arrest in a big-box store is any greater than the risk of death from sudden cardiac arrest that occurs at any other location that is equally or more distant from existing emergency medical services.
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 guidanсe 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.
As we have seen, the California Legislature is well aware of the magnitude and severity of the health risks posed by sudden cardiac arrest and has taken a variety of steps to address this serious problem. To encourage the voluntary acquisition of AEDs, the Legislature has afforded immunity from potential civil liability, under specified circumstances, for all businesses that acquire AEDs and make them available to their patrons. (
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,23 and some jurisdictions have designated other locations—for example, schools,24 public recreational facilities,25 and government
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 Internat., 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.28
VI. Conclusion
Accordingly, in response to the Ninth Circuit‘s request, we conclude that, under California law, Target‘s common law duty of reasonable care to its
Baxter, J., Chin, J., Corrigan, J., Liu, J., and Nicholson, J.,* concurred.
WERDEGAR, J., Concurring.---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];
*Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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 сonnection 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 (
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 Restatemеnt 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.
Notes
“(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 according to any applicаble 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
“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 nоr 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