Posted by SCAFoundation on 01/21/2014

In the case of Verdugo v. Target, the California Supreme Court is considering whether there is a common law duty requiring commercial property owners in the state to have automated external defibrillators (AEDs) available for use in situations involving sudden cardiac arrest. A number of outside parties on both sides of the question have now filed additional briefs setting the stage for some very interesting oral arguments (not yet scheduled) before the Supreme Court. This is one of the most important AED cases to come along and has the potential to profoundly affect public access defibrillation in the U.S.

This post provides an update on the case and supplements others I’ve written previously. For an overview of the status of the case in the courts, and an overview of the legal issues raised, take a look at What the Target Case Means for Public Access Defibrillation.  For a summary of legal arguments raised by both sides in the case, see The Briefs Are In: Arguments on both sides in the Target case.  (Turns out I was a bit premature in titling this last one. Since that post, an unexpected flurry of outside briefs have been filed with the court by organizations interested in the important issues raised in this case.) For some thoughts on this case from the perspective of retail chains most directly impacted, see Should Retail Chains Fear AED Programs?

Case Update

Over the last several months, 15 outside individuals and organizations filed amicus curiae briefs with the California Supreme Court. Amicus curiae (“friend of the court”) briefs are filed by those who are not parties to a case and typically offer a court additional perspectives on a broad range of legal impacts a decision might have. Cases raising important legal questions tend to attract these types of briefs. Based on the number of briefs filed, the Target case is certainly one of these.

The following individuals and organizations filed briefs supporting the Verdugo’s view that there is a common law duty in California requiring commercial businesses to have AEDs:

  • Consumers Attorneys of California
  • Sudden Cardiac Arrest Foundation
  • Bobbi Cohen, Ken Anderson, M.D., Anthony Bates Foundation, Ken Heart Foundation, Sarah Friend Heart Foundation (combined brief)

The following organizations filed briefs supporting Target’s view that there is no common law duty requiring commercial business in California to have AEDs:

  • California Chamber of Commerce and the Civil Justice Association of California (combined brief)
  • United States Chamber of Commerce and the American Tort Reform Association
  • Pacific Legal Foundation and the National Federation of Independent Business Small Business Legal Center (combined brief)
  • Retail Litigation Center, Inc., and California Retailers Association (combined brief)

By and large, these outside parties reiterate the arguments summarized in The Briefs Are In post with some additional points and nuance. Here are some selected highlights.

Those parties supporting the Verdugos highlight the benefits of early defibrillation and the ease-of-use of AEDs. They argue that requiring commercial business to have AEDs would not be expensive or burdensome and that Target’s status as a big-box retailer is a factor to be considered because the store is large and inaccessible to emergency medical services personnel and because Target offers pharmacy and health services intended to attract people with medical conditions. They suggest that requiring AEDs would not expose commercial property owners to increased liability because California has AED Good Samaritan immunity laws. (Editorial side comment: California’s AED Good Samaritan immunity laws offer very limited protection to AED owners and users so I don’t think this argument carries much weight.) One of the amicus briefs argues head-on that the question of whether Target has a duty to have AEDs should be decided by a jury as a factual matter rather than by an appellate courts as a legal matter.

Those parties supporting Target argue that imposing on Target a common law duty to have AEDs would be unprecedented. In support, they point to longstanding case law holding that commercial property owners satisfy their obligation to help ill or injured patrons by promptly calling 911 and providing only minimal first aid that doesn’t require the use of AEDs. They also point to a California AED law that expressly says that “nothing in [the AED laws or related statutes] may be construed to require a building owner or a building manager to acquire and have installed an AED in any building.” Based on this statute, they argue that the question of a commercial property owner’s duty to have AEDs is for the legislature to decide rather than the courts. On another point, they argue that if AEDs are required, then business employees will be required to diagnose and treat other specific medical conditions like asthma, food allergies, epilepsy, and diabetes. In effect, businesses would be required to anticipate and treat a wide range of medical emergencies stemming from personal health conditions that are unrelated to the condition of or activity on the property itself.

All-in-all this case touches on many of the fundamental principles of negligence law going way back. And it offers a fascinating exploration of the legal, public health, and public policy issues surrounding public access defibrillation. For those interested in digging deeper into this case, all of the briefs can be found in the AED Law Center section of ReadiSource, our members-only online information portal.

Possible Outcomes

The California Supreme Court could decide this case in any number of ways. That said, it seems to me that the following options are most likely to be considered by the court.

  • The court might decide that commercial property owners have no common law duty to have AEDs. This result would effectively end the case.
  • The court might decide that commercial property owners do have a common law duty to have AEDs. This result would send the case back to the trial court for a jury trial.
  • The court might decide that the question of whether commercial property owners have a common law duty to have AEDs is a fact question to be decided by a jury. This result, too, would send the case back to the trial court for a jury trial.

While predicting how a court will decide a case is generally a fool’s game, I’ll give it a try. In my view, options 1 and 3 are the most likely.  That is, the court will either find no common law duty “as a matter of law” or view the question as best answered by a jury on the facts of the Target case specifically. I don’t believe the court will impose a blanket common law duty on all commercial property owners as I think the justices will agree this is best left to the legislature to decide.

Oral arguments before the court are yet to be scheduled. And there is no way to know when a decision will come. I’ll post further updates as events unfold.

What This Case Doesn't Address

It is important to recognize the limited scope of the Target case.  It is solely focused on the potential legal consequences, if any, imposed on businesses that do not have AEDs.  Whether or not commercial property owners are ultimately required to have AEDs, common law duties are most certainly imposed on businesses that already have AEDs. Under longstanding negligence principles, AED owners have an obligation to set up and operate their AED programs “reasonably.” An avoidable sudden cardiac death resulting from a poorly designed or operated AED program may result in liability. The Target case has no bearing on these types of situations.

By Richard Lazar, Readiness Systems; Member, Sudden Cardiac Arrest Foundation Advisory Council