Rosemary Verdugo v. Target Corporation , 704 F.3d 1044 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL VERDUGO , brother of No. 10-57008
Decedent; ROSEMARY VERDUGO ,
mother, successor and heir of Mary D.C. No.
Ann Verdugo, Decedent, 2:10-cv-06930-
Plaintiffs-Appellants, ODW-AJW
Central District
v. of California,
Los Angeles
TARGET CORPORATION , a Minnesota
corporation,
Defendant-Appellee. ORDER
Filed December 11, 2012
Before: Harry Pregerson, Susan P. Graber,
and Marsha S. Berzon, Circuit Judges.
Order;
Concurrence by Judge Graber;
Dissent by Judge Pregerson
2 VERDUGO V . TARGET CORPORATION
SUMMARY*
Certification to CA Supreme Court
The panel certified a question of California law to the
California Supreme Court, withdrew the case from further
consideration, and stayed further proceedings pending final
action by the California Supreme Court.
The panel certified the following question:
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 arrest?
Judge Graber concurred fully in the order, and wrote
separately to note that in the absence of the California
Supreme Court’s guidance, she would disagree with Judge
Pregerson’s dissenting view.
Judge Pregerson dissented from the order certifying a
question to the California Supreme Court. Judge Pregerson
would reverse the district court’s dismissal of the complaint
and remand for further proceedings because he would hold in
the circumstances of this case that the California common law
duty for a business to provide emergency first aid to its
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
VERDUGO V . TARGET CORPORATION 3
invitees requires the availability of an AED for cases of
sudden cardiac arrest.
COUNSEL
Robert A. Roth, Tarkington, O’Neill, Barrack & Chong,
Berkeley, California; David G. Eisenstein, Law Offices of
David G. Eisenstein, P.C., Carlsbad, California for Plaintiffs-
Appellants.
Benjamin R. Trachtman and Ryan M. Craig, Trachtman &
Trachtman, Mission Viejo, California for Defendant-
Appellee.
ORDER
Pursuant to Rule 8.548 of the California Rules of Court,
we request the California Supreme Court to decide the
question of California law set forth in Part II of this order.
This case is withdrawn from submission until further order of
this court, and all further proceedings in this court are stayed
pending final action by the California Supreme Court.
There is no controlling precedent resolving the question
we set forth below. The answer will determine the outcome
of the present appeal. Our phrasing of the question below is
not meant to restrict the California Supreme Court’s
consideration of the issue involved. We agree to follow the
answer provided by the California Supreme Court.
4 VERDUGO V . TARGET CORPORATION
I
CAPTION AND COUNSEL
Michael and Rosemary Verdugo are considered the
petitioners in this request because they appeal from the
district court’s adverse ruling on the specified issue. The
caption of this case is:
MICHAEL VERDUGO, brother of Decedent;
ROSEMARY VERDUGO, mother, successor
and heir of Mary Ann Verdugo, Decedent,
Plaintiffs-Appellants,
v.
TARGET CORPORATION, a Minnesota
corporation, Defendant-Appellee.
The names and addresses of counsel are:
For the Verdugos: Robert A. Roth, Tarkington, O’Neill,
Barrack & Chong, Berkeley, CA; David Griffith Eisenstein,
Law Offices of David G. Eisenstein, P.C., Carlsbad, CA.
For Target Corporation: Benjamin R. Trachtman, Ryan
M. Craig, Trachtman & Trachtman, Mission Viejo, CA.
VERDUGO V . TARGET CORPORATION 5
II
QUESTION OF LAW
The question of law we wish to be answered is:
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
arrest?
III
STATEMENT OF FACTS
Mary Ann Verdugo, age 49, was shopping at a Target
store in Pico Rivera, California, with her mother and brother
on August 31, 2008, when she suffered sudden cardiac arrest
and collapsed. In response to a 911 call, paramedics were
dispatched from a Los Angeles County Fire Department
station nearby. It took the paramedics several minutes to
reach the store, and several more minutes to reach Verdugo
inside. By the time the paramedics arrived, Verdugo was
dead and could not be resuscitated. Target did not have an
AED in its store.
Nearly 300,000 Americans suffer from sudden cardiac
arrest every year, and only eight percent survive. Sudden
cardiac arrest is caused by a problem with the heart’s
electrical impulses, causing it to stop pumping blood. Unlike
a myocardial infarction (a heart attack), sudden cardiac arrest
often strikes with no prior symptoms and can strike a heart
6 VERDUGO V . TARGET CORPORATION
that is otherwise healthy. A shock from an AED can restart
a heart by correcting the misfiring of its electrical impulses.
To be effective, the AED must be used immediately. 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).
Target sells AEDs on its website for approximately
$1,200. AEDs can be used by the untrained, as the devices
provide oral instructions to users and “are designed not to
allow a user to administer a shock until after the device has
analyzed a victim’s heart rhythm and determined that an
electric shock is required.” Id. § 402(8).
Verdugo’s mother and brother filed a wrongful death
action against Target in California Superior Court, and Target
removed to federal court. Target then filed a motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6),
which the district court granted, holding that Target had no
duty to acquire and install an AED. The Verdugos appealed,
arguing that a duty does exist under California common law
and, in the alternative, asking that the question be certified to
the California Supreme Court. Target opposed certification.
IV
STATEMENT OF REASONS FOR THE REQUEST
The resolution of the question presented by this case
implicates strong state interests and could have wide-reaching
VERDUGO V . TARGET CORPORATION 7
effects in the state of California. The Verdugos seek the
announcement of a common-law rule that would require
many retail establishments across the state to acquire AEDs.
Target suggests that such a rule would burden it and many
companies like it, that California common law does not
support such a rule, and that the California AED statutes
preclude the imposition of such a common law rule. More
broadly, Target maintains that California common law does
not support any requirement that property owners provide
first aid to invitees beyond calling 911 to summon assistance.
As a matter of comity, we consider the California Supreme
Court better positioned to address these major questions of
California tort law than this court. See Klein v. United States,
537 F.3d 1027, 1030 (9th Cir. 2008) (order).
A
Both parties agree that there is no statutory duty in
California requiring a business like Target to obtain a
defibrillator. The California legislature has enacted a series
of statutes governing AEDs that are acquired by building
owners and managers. See Cal. Health & Safety Code
§ 1797.196 (West 2012); Cal. Civ. Code § 1714.21(d) (West
2012) (providing immunity from civil liability for those who
acquire AEDs as long as they comply with specified
maintenance, testing, and notice requirements). These
statutes “reflect legislative policy to encourage the
availability of AEDs by providing immunity from liability for
those who acquire the devices.” Rotolo v. San Jose Sports &
Entm’t, LLC, 151 Cal. App. 4th 307, 314 (Ct. App. 2007).
At the same time, the legislature has declared that
“[n]othing in this section . . . may be construed to require a
8 VERDUGO V . TARGET CORPORATION
building owner or a building manager to acquire and have
installed an AED in any building.” Cal. Health & Safety
Code § 1797.196(f). Whether the AED statutes as a whole,
including § 1797.196(f), preclude the existence of a common
law duty to acquire an AED is one of the issues in this case.
See Rotolo, 151 Cal. App. 4th at 325.
Target argues, and the district court held, that the
statutory scheme has “occupied the field,” and that imposing
a common law duty here would “defeat the underlying
legislative purpose.” Id. at 314. For this proposition, Target
relies largely on Rotolo, which held that where a hockey rink
had acquired an AED but failed to notify invitees of its
existence and location, and a hockey player died as a result,
the statutory scheme precluded common law liability where
there had been compliance with the statutory requirements for
immunity. Id. at 322–23.
The Verdugos maintain, to the contrary, that the thrust of
California’s legislative scheme regarding AEDs is to
encourage their availability by providing immunity for those
who acquire them and comply with training and maintenance
requirements. Id. at 319–20. According to the Verdugos, the
statutes deal with situations in which business owners do
acquire AEDs and do not apply to the situation presented
here, where a business owner has not acquired an AED.
Imposing a common law duty to acquire an AED in these
circumstances, the Verdugos maintain, would not frustrate the
legislature’s desire to promote the acquisition of AEDs by
providing a safe harbor from liability for those who install
and maintain them properly, as any business required to
install an AED under a common law tort theory would be
entitled to statutory immunity. On this analysis, the existence
VERDUGO V . TARGET CORPORATION 9
of California’s statutory scheme is not determinative as to
whether a common law duty exists.
B
If the court were to accept the Verdugos’ view of the
relationship between the AED statutes and California
common law, then the pertinent question would become
whether Target Stores had a duty under California common
law to have an AED available. There is under California law
a “special relationship” between business owners and their
invitees, which creates a duty to provide “‘assistance [to] . . .
customers who become ill or need medical attention.’”
Delgado v. Trax Bar & Grill, 36 Cal. 4th 224, 241 (2005)
(alteration in original) (quoting Breaux v. Gino’s, Inc.,
153 Cal. App. 3d 379, 382 (Ct. App. 1984)). Beyond this
basic principle, California’s invitee precedents are in some
tension as they pertain to the issue in this case.
Target suggests, first, that the duty to provide medical
assistance to invitees is uniformly discharged simply by
calling 911, relying for this proposition on Breaux. In
Breaux, the Court of Appeal held that a restaurant had
fulfilled its duty to a choking patron by summoning
emergency services and was not required to provide further
assistance. 153 Cal. App. 3d at 381–82. The Verdugos point
out, however, that Breaux relied in its reasoning on a
statutory scheme similar to the one implicated in Rotolo:
California law required the posting in restaurants of first aid
instructions for choking victims and created a safe harbor
from liability for restaurants that did so. Id. at 381 & n.2.
Gino’s, the defendant in Breaux, had posted the instructions
required for the safe harbor. Under those circumstances,
10 VERDUGO V . TARGET CORPORATION
imposing a common law duty beyond calling 911 would, as
in Rotolo, have contradicted the legislative scheme. Here, in
contrast, Target did not have an AED available on the
premises, and so had not taken the steps necessary under the
statute to trigger immunity from liability.
Just as Target relies on Breaux, so the Verdugos rely on
Delgado, maintaining that it refutes any categorical rule that
summoning emergency services is always sufficient to fulfill
a business’s duty of care to its patrons. In Delgado, the court
held that a bar had a duty to do more than simply call the
police when a fight broke out between several of its
customers. 36 Cal. 4th at 245–46. In determining the scope
of the duty owed to invitees, Delgado observed, foreseeability
of injury is a “‘crucial factor.’” Id. at 237 (quoting Ann M. v.
Pac. Plaza Shopping Ctr., 6 Cal. 4th 666, 676 (1993)). The
foreseeability of the harm must be balanced “against the
burden of the duty to be imposed.” Ann M., 6 Cal. 4th at 678.
Where the burden of preventing the harm is great, a higher
degree of foreseeability is required, and where “the harm can
be prevented by simple means, a lesser degree of
foreseeability may be required.” Id. at 679 (internal quotation
marks omitted). Applying this analysis, the court in Delgado
reasoned that the bar’s bouncers could foresee that a fight was
about to erupt and, in that situation, there were “reasonable,
relatively simple, and minimally burdensome steps” they
could have taken to prevent it. Delgado, 36 Cal. 4th at 246.
In so holding, the court distinguished Ann M., in which the
plaintiff was raped in the shopping center where she worked.
Ann M., 6 Cal. 4th at 671. Noting that hiring security guards
would be relatively burdensome, the court concluded that the
harm that befell the plaintiff was not sufficiently foreseeable
to justify imposing this duty. Id. at 679–80.
VERDUGO V . TARGET CORPORATION 11
While the court has thus laid out a basic framework for
analyzing the scope of the duty to prevent harm to invitees,
neither Delgado nor Ann M. involved the duty to provide first
aid to invitees, much less decided the precise issue presented
here, the duty to have AEDs available on one’s business
premises. Nor does applying the general test articulated in
Delgado provide “clear controlling California precedent.”
Klein, 537 F.3d at 1030 (internal quotation marks omitted).
On one hand, it was not foreseeable to Target that
Verdugo herself would suffer cardiac arrest, and so Target
was not aware of the specific danger, which the bouncers in
Delgado were. On the other hand, California courts
considering foreseeability as an aspect of duty often focus on
whether the type of harm suffered was foreseeable, not
whether “‘a particular plaintiff’s injury was reasonably
foreseeable in light of a particular defendant’s conduct.’”
Carrera v. Maurice J. Sopp & Son, 177 Cal. App. 4th 366,
378 (Cal. Ct. App. 2009) (emphasis in original) (quoting
Ballard v. Uribe, 41 Cal. 3d 564, 572 n.6 (1986)). In this
sense, it could be foreseeable to Target that one of its
customers might suffer sudden cardiac arrest while shopping,
given the fact that more than 700 people die of sudden
cardiac arrest in the United States every day. Cardiac Arrest
Survival Act § 402(1). Even so, it is not clear to us under
California precedents whether the foreseeability inquiry is to
be undertaken on a store-by-store or a company-wide basis,
or what degree of likely occurrence of a particular illness is
sufficient to make that occurrence foreseeable. Moreover, the
parties dispute the degree to which the foreseeability issue
should be influenced by the location of this particular Target
store—in a shopping center—or by its large size, both factors
which increase the likelihood that 911 or other outside AED
12 VERDUGO V . TARGET CORPORATION
assistance will not be able to reach patrons suffering sudden
cardiac arrest in time to save them.
The burden side of the analysis is similarly debatable
under the existing precedents. Target sells AEDs online for
approximately $1,200 each. For a property owner to be
eligible for the statutory immunity from liability, an AED,
once purchased, must be checked every 30 days, and one
employee must be trained in its use. Cal. Health & Safety
Code § 1797.196(b)(2). Requiring Target to purchase and
maintain an AED for each of its California stores would be
economically less burdensome than, for example, requiring
it to hire security guards to prevent crime. See Ann M., 6 Cal.
4th at 679; see also Sharon P. v. Arman, 21 Cal. 4th 1181,
1190 (1999). On the other hand, requiring such preventive
purchases appears more burdensome than requiring already-
employed bouncers to intervene to stop a fight once it occurs.
See Delgado, 36 Cal. 4th at 246–47. Moreover, as with the
foreseeability prong, the California precedents do not provide
clear guidance as to whether the burden is to be evaluated on
a store-by-store or a company-wide basis.
In sum, given the uncertainty in the most applicable
California precedents as applied to the present circumstances,
weighing the foreseeability of the harm suffered by Verdugo
against the burden to be imposed on Target does not provide
a clear answer to the question of whether Target had a duty
under California law to purchase AEDs.
VERDUGO V . TARGET CORPORATION 13
C
The court in both Ann M. and Delgado also mentioned the
factors listed in Rowland v. Christian, 69 Cal. 2d 108, 112–13
(1968), as being useful “‘in determining the existence and
scope of a duty [to invitees] in a particular case.’” Delgado,
36 Cal. 4th at 237 n.15 (quoting Ann M., 6 Cal. 4th at 675
n.5).1 In addition to foreseeability and burden, these factors
are:
[1] the degree of certainty that the plaintiff
suffered injury, [2] the closeness of the
connection between the defendant’s conduct
and the injury suffered, [3] the moral blame
attached to the defendant’s conduct, [4] the
policy of preventing future harm, . . . and [5]
the availability, cost, and prevalence of
insurance for the risk involved.
Rowland, 69 Cal. 2d at 113.
Applying these factors also does not provide a clear
answer to the question whether Target had a duty to have an
AED available on its premises. Without an AED on-site, it
was virtually certain that Verdugo would die. Defibrillation
1
Rowland seems to have originally articulated these factors as helpful
in determining whether to make an exception to “the general principle that
a person is liable for injuries caused by his failure to exercise reasonable
care,” and not for the purpose of determining the precise scope of the duty
of care that arises from a special relationship. Rowland, 69 Cal. 2d at 112.
Nevertheless, the California Supreme Court has since considered those
factors as “useful” for this purpose. See Delgado, 36 Cal. 4th at 237 n.15;
Ann M., 6 Cal. 4th at 675 n.5.
14 VERDUGO V . TARGET CORPORATION
is the only definitive treatment for sudden cardiac arrest, and
“every minute that passes before returning the heart to a
normal rhythm decreases the chance of survival by 10
percent.” Cardiac Arrest Survival Act § 402(5). On the other
hand, it is far from certain that immediate treatment with an
AED will revive a particular patient. While the first two
factors thus may support the imposition of a duty, they do so
only mildly. The third factor weighs against finding a duty,
as Target’s failure to provide an AED was not morally
blameworthy in the sense that term is used by California
courts. See Rotolo, 151 Cal. App. 4th at 337–38. The fourth
factor strongly supports finding a duty, as doing so would
help prevent future harm by increasing the availability of
AEDs. The final factor also supports a duty, as California has
provided a safe harbor from liability for businesses that
acquire AEDs, so no insurance would be required as long as
the conditions for invoking the safe harbor were met. Cal.
Civ. Code § 1714.21(b).
D
Pertinent to our request for certification, finally, is that
courts in other jurisdictions applying similar balancing or
multi-factor approaches to liability have reached divergent
conclusions when confronting AED issues similar to the one
in this case. Some courts to have considered the matter have
held that there is no duty on the part of business owners to
provide AEDs to be used on their invitees in the event of
cardiac arrest. See Boller v. Robert W. Woodruff Arts Ctr.,
Inc., 716 S.E.2d 713, 715 (Ga. Ct. App. 2011); L.A. Fitness
Int’l, LLC v. Mayer, 980 So. 2d 550, 561 (Fla. Dist. Ct. App.
2008); Salte v. YMCA of Metrop. Chi. Found., 814 N.E.2d
610, 615 (Ill. App. Ct. 2004); Atcovitz v. Gulph Mills Tennis
VERDUGO V . TARGET CORPORATION 15
Club, Inc., 812 A.2d 1218, 1224 (Pa. 2002); Rutnik v. Colonie
Ctr. Court Club, Inc., 672 N.Y.S.2d 451, 453 (N.Y. App. Div.
1998). Other courts, however, have allowed similar AED
suits to go to the jury, concluding that the duty question turns
on case-specific factual matters. See Aquila v. Ultimate
Fitness, 52 Conn. L. Rptr. 81 (Conn. Super. Ct. 2011);
Ksypka v. Malden YMCA, 22 Mass. L. Rptr. 122 (Mass.
Super. Ct. 2007); Fowler v. Bally Total Fitness Corp., No. 07
L 12258 (Ill. Cir. Ct. Oct. 27, 2007).
Thus, neither California precedents nor cases from other
courts provide us with sufficient guidance to answer the
important question of California tort law presented by this
case. We therefore respectfully ask the California Supreme
Court for guidance and will follow that guidance once
received.
V
Pursuant to California Rule of Court 8.548(d), the Clerk
of this court shall forward an original and 10 copies of this
order, under official seal, to the California Supreme Court,
along with a certificate of service on the parties, and copies
of all briefs, excerpts of record, requests for judicial notice,
and post-argument letters that have been filed with this court.
The parties shall notify the Clerk of this court within 14
days of any decision by the California Supreme Court to
accept or to decline our request. If the California Supreme
Court accepts, the parties shall file a joint report six months
after the date of acceptance and every six months thereafter
advising us of the status of the proceedings. The parties shall
16 VERDUGO V . TARGET CORPORATION
also notify the Clerk of this court within 14 days of the
issuance of an opinion by the California Supreme Court.
IT IS SO ORDERED.
GRABER, Circuit Judge, concurring:
I concur fully in the Order certifying a question to the
California Supreme Court. I write separately only to note
that, in the absence of that court’s guidance, I would disagree
with the dissent’s view, as I understand extant California law.
First, the legislature’s wide-ranging statute concerning the
availability and use of AEDs strongly suggests that the
legislature occupied the field and displaced any duty that a
business may have under California common law to acquire
or install an AED. See Cal. Health & Safety Code
§ 1797.196(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.”). Second, I read California law to establish only a
limited duty on the part of a business to come to the aid of an
invitee who is in physical distress. Third, because the
foreseeability of cardiac arrest is universal, the dissent’s view
contains no limiting principle; all businesses, of any size, can
foresee equally that a customer might suffer sudden cardiac
arrest. Thus, in essence, finding a common law duty might
well eviscerate California Health & Safety Code section
1797.196(f).
In short, because reasonable minds differ about the state
law that we must apply, certification is particularly
VERDUGO V . TARGET CORPORATION 17
appropriate here. See Klein v. United States, 537 F.3d 1027,
1030 (9th Cir. 2008) (stating that certification is appropriate
if “no clear controlling California precedent squarely
addresses the question before us” (internal quotation marks
omitted)).
PREGERSON, Circuit Judge, dissenting:
On August 31, 2008, 49-year-old Mary Ann Verdugo
went shopping at a Target store in Pico Rivera, California.
While inside the store, Mary Ann suffered sudden cardiac
arrest. She died within minutes.
Paramedics were called promptly. But it took several
minutes for them to arrive at Target’s curbside and several
minutes more to reach Mary Ann inside the big box store.
The paramedics attempted to revive Mary Ann. But it was
too late to save her life.
Nearly 300,000 Americans are victims of sudden cardiac
arrest every year. Victims of sudden cardiac arrest collapse
and quickly lose consciousness–often without warning.
Death follows unless normal heart rhythm is restored within
a matter of minutes.
Sudden cardiac arrest is treatable, but more than 95
percent of cardiac arrest victims die, mainly because of the
lack of an available external defibrillator (“AED”). Cardiac
Arrest Survival Act of 2000, Pub. L. No. 106-505, § 402(3),
114 Stat. 2314 (2000). Although “CPR may help prolong the
window of survival,” defibrillation “is the only definitive
treatment” for sudden cardiac arrest. The American Red
18 VERDUGO V . TARGET CORPORATION
Cross AED Frequently Asked Questions,
http://www.redcrosscny.org/pdf/AED_FAQs.pdf. To be
successful, an AED shock generally must be administered
within five minutes from the onset of sudden cardiac arrest.
Despite the frequency of sudden cardiac arrest and the
absolute necessity of using an AED within the first few
minutes, the Pico Rivera Target failed to equip its store with
a life-saving defibrillator. That is why Mary Ann Verdugo’s
life could not be saved.
A business has a “special relationship” with its invitees.
This special relationship creates an affirmative duty requiring
the business to provide first aid to its invitees who become ill
or injured on the premises, and “to care for them until they
can be cared for by others.” Restatement (Second) of Torts
§ 314A; see also Delgado v. Trax Bar & Grill, 36 Cal. 4th
224, 241 (2005).
The scope of a business’s duty to provide care is
“determined in part by balancing the foreseeability of the
harm against the burden of the duty to be imposed.” Ann M.
v. Pacific Plaza Shopping Ctr., 6 Cal. 4th 666, 678 (1993).
“[W]here the burden of preventing future harm is great, a
high degree of foreseeability may be required.” Id. (citation
and quotation marks omitted). Nevertheless, “in cases where
there are strong policy reasons for preventing the harm, or the
harm can be prevented by simple means, a lesser degree of
foreseeability may be required.” Id. at 678–79 (citation and
quotation marks omitted). “Duty in such circumstances is
determined by a balancing of ‘foreseeability’ . . . against the
‘burdensomeness, vagueness, and efficacy’ of the proposed
VERDUGO V . TARGET CORPORATION 19
. . . measures.” Id. at 679 (quoting Gomez v. Ticor, 145 Cal.
App. 3d 622, 631 (Ct. App. 1983)).
More than 700 people in the United States die of cardiac
arrest every day. Cardiac Arrest Survival Act at § 402(1).
Because of the significant number of people who suffer
sudden cardiac arrest, it is reasonably foreseeable that a
customer, while shopping at the Pico Rivera Target, could
suffer sudden cardiac arrest. 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. Seconds count when the life of a cardiac arrest
victim is in the balance. “[E]very minute that passes before
returning the heart to a normal rhythm decreases the chance
of survival by 10 percent.” Cardiac Arrest Survival Act at
§ 402(5) (emphasis added). But the harm can be easily
reduced by quick use of a defibrillator. 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.” Automatic External
Defibrillators: Hearing on S.B. 1436 Before the S. Comm. on
Health, 2011–2012 Reg. Sess. 1–2 (Cal. 2012).
Defibrillators are relatively inexpensive and virtually
foolproof. Target sells an AED on its website for $1,199.99.
AEDs are “safe and effective, even when used by lay people.”
Cardiac Arrest Survival Act at § 402(8). AEDs are virtually
fail-safe because they do not “allow a user to administer a
shock until after the device has analyzed a victim’s heart
rhythm and determined that an electric shock is required.” Id.
20 VERDUGO V . TARGET CORPORATION
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.1 Providing an AED is an easy and
effective way to remedy a grave and foreseeable harm. In the
analogous context of preventing criminals from harming
invitees, the California Supreme Court has recognized that, in
certain circumstances, some precautionary measures are
onerous. Some measures found onerous include: employing
security guards, Ann M., 6 Cal. 4th at 679; and providing
bright lights in parking garages, monitoring security cameras,
and requiring existing personnel to make periodic walk-
throughs of the property, Sharon P. v. Arman, Ltd., 21 Cal.
4th 1181, 1196 (1999).
But this case is different. The remedy is not onerous, and
a defibrillator “is the only definitive treatment for [sudden
cardiac arrest].” The American Red Cross AED Frequently
Asked Questions, http://www.redcrosscny.org/pdf
/AED_FAQs.pdf. Acquiring a relatively inexpensive AED
and training one employee to use it is not comparable to
hiring a security guard or requiring an employee to walk
through a garage. A security guard is hired for one purpose:
to guard a premises. Moreover, requiring existing personnel
to make periodic walk-throughs removes that employee from
1
Moreover, in California, any business that acquires an AED is “not
liable for any civil damages resulting from any acts or omissions in the
rendering of the emergency care” if the business, among other things,
regularly maintains the defibrillator, trains one employee per every AED
unit on AED usage, and complies with regulations governing placement
of the AED. Cal. Health & Safety Code § 1797.196(b). California limits
the liability for civil damages of any entity that acquires an AED so long
as the entity complies with the non-onerous requirements of Cal. Health
& Safety Code § 1797.196(b).
VERDUGO V . TARGET CORPORATION 21
their regular duties for a significant amount of time and
training. A Pico Rivera Target employee trained in proper
AED usage, however, is not hired specifically to use the AED
device and is not required to periodically abandon his or her
normal post; the employee is merely trained on how to use
the foolproof defibrillator. Finally, unlike bright lights,
security cameras, and periodic basement walk-throughs,
acquiring an AED would be extremely effective in preventing
death by sudden cardiac arrest.
Because of the reasonable foreseeability that a Pico
Rivera Target customer could suffer sudden cardiac arrest,
the insignificant burden of acquiring an AED and training
employees on how to use the simple device, and the virtual
certainty of death if an AED is not used within minutes of the
onset of sudden cardiac arrest, the Pico Rivera Target had a
duty to have available an AED in its store. The majority
refers the question to the California Supreme Court. I believe
that in the circumstances of this case, the California common
law duty for a business to provide emergency first aid to its
invitees requires the availability of an AED for cases of
sudden cardiac arrest. Thus, I would reverse the district
court’s dismissal of the complaint against Target and remand
for further proceedings.