Ninth Circuit Certified Question to the California Supreme Court: Does a Commercial Property Owner Have a Duty to Have an AED Device On-Site?

Earlier today, in Verdugo v. Target Corp., a panel of the United States Court of Appeals for the Ninth Circuit (consisting of Judges Berzon, Graber, and Pregerson) certified an interesting question to the California Supreme Court:

In what circumstances, if ever, does the common law duty
of a commercial property owner to provide emergency first
aid to invitees require the availability of an Automatic
External Defibrillator (“AED”) for cases of sudden cardiac

The question arises after a 49-year-old man suffered a heart attack at a Target store in California. There was no AED on the premises, and the victim died before paramedics arrived. His next-of-kin sued, alleging that Target was negligent for failing to have an AED device on-site.

The certified question is intriguing, for a number of reasons. For one thing, it presents the issue of whether the plaintiffs’ negligence claim is preempted by a series of state laws that were designed to enhance the availability of AEDs in public venues. The district court held that these statutes occupied the field of AED acquisition and use, and thereby preempted common-law negligence claims such as the plaintiffs’.

But even assuming arguendo that the district court was wrong, and the plaintiffs’ claim isn’t preempted, the case also raises the following, even more interesting issues:

First, if such a common-law duty exists as to at least some “commercial property owners,” which such owners will have such a duty, and which (if any) won’t?

As background, across the country there have been several negligence lawsuits over the past decade in which plaintiffs have attacked the defendants’ lack of an AED device. These suits have produced a range of judicial opinions; some courts have found no duty to possess an AED, while others have spotted a jury question as to whether the lack of an AED, on the facts presented, amounted to a breach of the generic duty of reasonable care. Significantly, most of these cases have involved the absence of these devices in health clubs, a venue where the risk of cardiac arrest would seem to be much higher than in, say, a Bed, Bath & Beyond, Best Buy, or Target. (Insert holiday shopping joke here.)

As the Ninth Circuit’s phrasing (“commercial property owners”) suggests, the Verdugo case can’t be pigeonholed or limited the same way that the health-club cases can. If the California Supreme Court finds a duty owed by Target, it’s also going to be owed by lots and lots of other businesses, as well. Yet over the past couple of decades, the California Supreme Court has been fairly circumspect about extending the duties owed by the class of defendants that the Ninth Circuit describes as “commercial property owners.” Given the court’s recent history, I’d be pretty surprised if it were to grant review and find that any and all retail stores, restaurants, and other commercial establishments–be they a mom-and-pop cafe or a gigantic shopping mall–owe customers, business visitors, and others on the premises a duty to have an AED device present on-site.

But, if the court were inclined to find a duty owed by some establishments, but not others, how to draw the line? By the square footage of the establishment? That’d be way too untethered to the foreseeability of a cardiac arrest, not to mention stupid. Revenues? Ditto. Raw numbers of customers? A little less stupid, but still pretty dumb, and necessitating some rather arbitrary line-drawing to boot. Past experience (or particular business models) that give a specific defendant or class of defendants reason to know that they serve a particularly vulnerable population of clients, customers, or other entrants? Maybe, but outside of settings like hospitals and retirement homes, it’s hard to appreciate how one heart attack at a particular location makes it foreseeable that lightning will strike twice. If the court were to follow the last of these approaches, it might as well say, hey, even assuming a duty of reasonable care, as a general rule, this standard subjects only hospitals, rest homes, and maybe a handful of other distinctive businesses (health clubs? airplanes?) to a viable negligence claim if and when they lack an AED and trained on-site personnel.

Second, if such a duty is found to exist, won’t such a ruling simply kick the can down the road to the inevitable but-for causation issues that would seem to loom large in these cases? Per the Ninth Circuit’s order:

The chance of surviving sudden cardiac arrest decreases by 10
percent for every minute that passes before the heart’s rhythm
is restored. Cardiac Arrest Survival Act of 2000, Pub. L. No.
106–505, § 402(5), 114 Stat. 2314. It is estimated that 30
percent of those who experience cardiac arrest could be saved
if an AED were used immediately. Id. § 402(4).

I’m not a doctor, nor do I play one on this blog. But at least in a jurisdiction that applies a more-likely-than-not standard to ascertain the essential but-for causation element of a plaintiff’s claim, if a plaintiff’s attorney can’t goose the “immediate AED use” survival rate to significantly higher than just 30 percent in a given case, then her client is going to lose on summary judgment, anyway. A 30 percent “saved” rate for AEDs means a 70 percent “not saved” rate, after all.


I don’t know if the California Supreme Court will agree to entertain the certified question, but as someone interested in tort law, I hope that they do.

I also am not very skilled at predicting the outcomes of cases that technically don’t exist yet. As suggested by the text above, however, I believe that if the California Supreme Court grants review, it will reject the position taken by Judge Pregerson in his dissent from the panel’s punt / opinion. Judge Pregerson would find that Target, and many other businesses besides, owe their customers a duty to have AED devices on-site. He reasons:

Purchasing an AED and periodically training an employee on its use is not much of a burden for a large store like the Pico Rivera Target. Providing an AED is an easy and effective way to remedy a grave and foreseeable harm.

Judge Pregerson draws the “foreseeability” portion of his analysis from the observation that 700 people die of cardiac arrest every day. But how many of these people die in commercial establishments like a Target, as opposed to at home, during a jog in the park, in a health club, or in a hospital? And while having an AED on-site might not be a “much of a burden” for a “large store” like a Target, as related above, I doubt that courts or juries can draw a coherent line between “large stores” and “smaller stores” in this context.  Assuming the impossibility of any such line-drawing, I seriously doubt that the California Supreme Court would be inclined to levy a $1,200+ tax on each and every California business–the going rate for AED devices. (This $1,200 figure also doesn’t account for training costs, and the possible need for additional personnel–assuming that the duty that may be recognized by the court entails not only possession of a device, but having employees on duty who are ready and able to use it. The former cost item will probably be pretty low [AED devices are close to idiot-proof], but I’m not so sure that the latter will be.)

Judge Pregerson’s analysis also seems to overstate the utility of AED devices. He writes:

Moreover, if a customer suffers sudden cardiac arrest in the large Pico Rivera Target in an area where paramedics cannot reach her within five minutes, she will likely die unless there is an accessible defibrillator in the store.

(Emphasis added.) The problem with this analysis is that if the statistics quoted earlier in this post (and in the panel opinion) are correct, Pregerson’s hypothetical customer is likely going to die even if there is an accessible defibrillator in the store. To support his causation argument, Pregerson does quote from a legislative report that provides, in pertinent part, when “CPR and AEDs are used within three to five minutes from the onset of collapse, the survival rate of a sudden cardiac arrest victim is as high as 50 to 70 percent.” But even if one treats the phrase “as high as” as giving rise to a jury question, CPR and AED use, combined, is different from AED use, alone. Does there also exist a common-law duty to have all employees trained in, and ready and willing  to use, CPR? For a court that answered this question in the negative, see L.A. Fitness Intern., LLC v. Mayer, 980 So.2d 550 (Fla. App. 2008). (And on this point generally, see the notes following Restatement (Third) of Torts, Liability for Physical and Emotional Harm sec. 40 (2012).) For now, suffice it to say that recognizing an “AED+CPR” duty would represent a nontrivial extension of California negligence law.

In any event, it’s an interesting question that the Ninth Circuit has posed, and one that I doubt we’ve seen the last of in the California case reporters.

 (H/T Michelle Olsen, Appellate Daily)

One thought on “Ninth Circuit Certified Question to the California Supreme Court: Does a Commercial Property Owner Have a Duty to Have an AED Device On-Site?

  1. Pingback: Do commercial property owners have a duty to keep defibrillators on site? - Overlawyered

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