Charleston Station v. Stephens

 Stephens sued Charleston Station for negligence. After a jury
trial, Stephens and his wife were awarded $1,605,000. Charleston Station
then unsuccessfully moved for a new trial, remittitur, or judgment as a
matter of law, and the district court entered judgment in accordance with
the jury's verdict. This appeal followed.
Charleston Station is not entitled to a judgment as a matter of law or a
new trial
Charleston Station argues that it is entitled to either a
judgment as a matter of law or a new trial based upon (1) our holding in
Lee v. GNLV Corp., 117 Nev. 291, 22 P.3d 209 (2001), and (2) NRS 41.500,
the so-called "good samaritan statute." We review a district court's denial
of a judgment as a matter of law motion de novo, and a district court's
denial of a new trial motion for an abuse of discretion. Nelson v. Heer, 123
Nev. 217, 223, 163 P.3d 420, 425 (2007).
Charleston Station is not entitled to a judgment as a matter of law or
a new trial based upon our holding in Lee
To succeed with a claim of negligence, a plaintiff must satisfy
four independent elements: "(1) an existing duty of care, (2) breach, (3)
legal causation, and (4) damages." Turner v. Mandalay Sports Entmit,
LLC, 124 Nev. 213, 217, 180 P.3d 1172, 1175 (2008). The first element,
duty, is a question of law which is "solely to be determined by the court."
Lee, 117 Nev. at 295, 22 P.3d at 212. The second element, breach, requires
deciding "[w]hether a defendant's conduct was 'reasonable' under a given
set of facts." Id. at 296, 22 P.3d at 212. Breach is a question of fact which
is "usually an issue for the jury to decide." Id.; see also K-Mart Corp. v.
Washington, 109 Nev. 1180, 1189, 866 P.2d 274, 280-81 (1993) ("The
reasonableness of [a defendant's] actions [is] a factual determination that
the jurors could make based upon all the evidence presented at trial."),
receded from on other grounds by Pope v. Motel 6, 121 Nev. 307, 114 P.3d
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jury to decide, "in some clear cases," the reasonableness of the defendant's
actions can be "properly decided by the court." Lee, 117 Nev. at 296, 22
P.3d at 212.
In Lee, an intoxicated patron was eating a meal at a
restaurant owned by GNLV. Id. at 293, 22 P.3d at 210. During the meal,
the patron vomited in his lap, slumped over in his chair, and closed his
eyes. Id. Security officers arrived within 60 seconds and took the patron's
pulse. Id. At first, the patron's pulse was "strong." Id. However, his
pulse began to fade, and security officers requested that paramedics be
summoned. Id. at 293, 22 P.3d at 211. While waiting for paramedics, the
security officers obtained supplemental oxygen and began CPR
procedures. Id. The patron was subsequently taken to the hospital where
he was pronounced dead. Id. at 293-94, 22 P.3d at 211. An autopsy
revealed that the patron had choked to death when food became lodged in
his airway. Id. at 294, 22 P.3d at 211. The doctor who performed the
autopsy later testified that he was doubtful that even an immediate
Heimlich maneuver would have saved the patron's life. Id. Following the
patron's death, his wife filed a negligence lawsuit against GNLV. Id.
GNLV moved for summary judgment arguing that its employees had acted
reasonably under the circumstances. Id. The district court granted
GNLV's motion. Id.
On appeal, this court first considered whether GNLV owed the
patron a duty of care. We concluded that a special relationship existed
between GNLV and the patron; and thus, "GNLV's employees were under
a legal duty to come to the aid of [the patron]." Id. at 296, 22 P.3d at 212.
We explained that this duty required GNLVs employees to "take
reasonable affirmative steps to aid the party in peril." Id. at 297, 22 P.3d
at 213 (internal quotation omitted). Thus, we concluded that GNLV did
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not have a specific duty to do the Heimlich maneuver; instead, it had a
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general duty of reasonable care. Id. at 298-99, 22 P.3d 214. We next
considered whether GNLV breached its duty by acting unreasonably
under the circumstances. We concluded that by quickly responding to the
situation, continually monitoring the patron's condition, and summoning
professional medical assistance, GNLV's employees "acted reasonably as a
matter of law." Id. at 298-99, 22 P.3d at 214. Thus, because GNLV did
not breach its duty of care, i.e. to act reasonably, we concluded that the
district court did not err in granting summary judgment. Id.
Charleston Station argues that based on our holding in Lee, it
was under no duty to do anything other than summon paramedics after
Stephens collapsed. Charleston Station's argument, however, confuses the
independent negligence elements of duty and breach.
Duty of care
In Lee, we held that GNLV's employees had a duty to "take
reasonable affirmative steps to aid the party in peril." Id. at 297, 22 P.3d
at 213 (internal quotation omitted). Just as we explicitly did not impose a
specific, bright-line duty to perform the Heimlich maneuver, Id. at 299, 22
P.3d 214, we also did not state that GNLV merely had a duty to call
paramedics. Instead, we simply held that GNLV had an affirmative duty
to act reasonably under the circumstances. Id. See also Restatement
(Third) of Torts: Liab. for Physical & Emotional Harm § 40 Reporter's note
to cmt. d (2012) (citing Lee with evident approval and describing it as
"characterizing the duty owed by a restaurant to a patron who was
choking on food as one of reasonable care under the circumstances)
(emphasis added).
Our discussion in Lee regarding duty is consistent with the
most recent Restatement. See Restatement (Third) of Torts: Liab. for
Physical & Emotional Harm § 40(a) (2012) ("An actor in a special
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regard to risks that arise within the scope of the relationship.") (Emphasis
added). Comment d to this section recognizes that under the 1965 version
of the Restatement, an affirmative duty "was limited to providing first aid
and temporary care to ill or injured persons until appropriate medical care
could be obtained." Id. However, comment d goes on to explain that the
2012 version of the Restatement "adopts a more general duty of
reasonable care, thereby recognizing both the variety of situations in
which the duty may arise and advancements in medical technology that
may enable an actor to provide more than just first aid." Id. (emphasis
added). In other words, "the duty imposed requires only reasonable care"
in light of all of the circumstances presented. 2 Id. (emphasis omitted). In
'The crux of the dissent's argument—that Charleston Station's only
duty was to administer basic first aid and summon paramedics—stems
from a 50 year-old version of the Restatement. Restatement (Second) of
Torts § 314A (1965). As the 2012 version of the Restatement points out,
applying a general duty of reasonable care, instead of a specific duty to
administer basic first aid and call paramedics, is more appropriate given
advances in medical technology and the variety of factual scenarios
negligence cases present. Restatement (Third) of Torts: Liab. for Physical
& Emotional Harm § 40 cmt. d (2012).
2 The dissent contends that we have no case law to support our
conclusion that Charleston Station owed Stephens a normal duty of
reasonable care. However, this conclusion comes from the explicit
language of our holding in Lee. See 117 Nev. at 297, 22 P.3d at 213
(concluding that GNLV's duty was to "take reasonable affirmative steps to
aid the party in peril") (emphasis added) (internal quotations omitted).
Like Charleston Station, the dissent confuses the independent negligence
elements of duty and breach. Nowhere in Lee did we discuss a "limited-
duty rule," nor did we hold that GNLV's only duty was to call paramedics.
Instead, we held that GNLV had an affirmative duty of normal reasonable
care, and given the unique facts presented in Lee, GNLV did not breach its
duty of normal reasonable care. Id. at 297-99, 22 P.3d at 213-14.
continued on next page . . .
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. . continued
The dissent cites cases from other jurisdictions, in which
courts rejected arguments that defendants like Charleston Station have a
specific duty to have and use AEDs. Indeed, these courts are correct in
rejecting a specific, bright-line duty to have and use AEDs Adopting such
a specific duty would mean that defendants are automatically negligent if
they fail to have and use AED's. A rule of this nature would eviscerate the
fact-finders' ability to evaluate the unique facts of each case to determine
whether the defendant acted reasonably under the circumstances.
However, contrary to the dissent's assertions, our holding in the present
case is consistent with this principle—that courts should not impose
specific, bright-line duties. We are not adopting a rule that defendants
like Charleston Station have a specific duty to have and use AED's.
Instead, we are reaffirming our holding in Lee in concluding that
Charleston Station's duty was one of general reasonable care. Whether
Charleston Station acted reasonably is a question of breach, and is for the
jury to decide after considering all of the evidence presented at trial.
It appears that the dissent would have this court depart from Lee's
duty of reasonable care standard, and adopt a rule that defendants like
Charleston Station never have a duty to do anything other than
administer basic first aid and call paramedics when a patron is in peril.
However, the specific, bright-line duty urged by the dissent is equally as
dangerous as the one the dissent incorrectly accuses us of adopting.
Holding that defendants like Charleston Station never have a duty to do
anything other than administer basic first aid and call paramedics would
eviscerate the fact-finders' ability to evaluate the unique facts of each case
to determine whether the defendant acted reasonably under the
circumstances. See Verdugo v. Target Corp., 327 P.3d 774, 789 (Cal. 2014)
(cited by the dissent and concluding that while it was rejecting the
argument that a retailer had a specific, bright-line duty to have AEDs, the
court was not addressing whether the retailer could breach its duty of
reasonably care by failing to do more than summon paramedics).
Accordingly, we conclude that Charleston Station owed Stephens a general
duty of reasonable care, and whether Charleston Station breached that
duty is a question of fact for the jury to decide.
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the present case, the jury was properly instructed that Charleston Station
owed the same general duty of care to Stephens. 3
Breach of duty
Our discussion in Lee regarding the security personnel's
actions after responding to the choking patron involved the breach
element of negligence, not duty. In other words, we considered whether
GNLV's employees acted reasonably under the circumstances. We
ultimately held that under the unique facts in Lee, it was clear that GNLV
did not breach its duty to the choking patron because its employees acted
reasonably under the circumstances. However, our holding was limited to
the facts of that case. Id. at 299, 22 P.3d at 214 ("under the circumstances
presented in this case, GNLV's employees acted reasonably as a matter of
law" (emphasis added)). We did not create a rule that defendants in all
cases act reasonably, as a matter of law, when they summon paramedics.
The facts of the current case are different than those in Lee.
For example, in the almost twenty years since the incident in Lee
occurred, there have been advances in medical technology which could
affect the reasonableness analysis. Evidence was presented at trial that
Charleston Station trains its employees on how to use modern AED
devices that can minimize the damage caused by a heart attack. Further,
unlike in Lee, where security personnel acted reasonably by performing
3 Jury Instruction No. 24 stated:
A special relationship exists between the Red Rock
and its patrons. When a special relationship
exists, a party who is in control of the premises is
required to take reasonable affirmative steps to
aid a party in peril, such as a party who has
become ill or is• otherwise in need of medical
attention.
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CPR on the choking patron, Charleston Station security did nothing of
significance to aid Stephens other than calling paramedics.
Except in rare cases where the reasonableness of the
defendant's actions is clear, determining whether a defendant acted
reasonably is a question of fact for the jury to decide. Id. at 296, 22 P.3d
at 212. We conclude that the facts of this case are not clear enough to
decide the issue of reasonableness as a matter of law. See Restatement
(Third) of Torts: Liab. for Physical & Emotional Harm § 8(b) (2010)
("When, in light of all the facts relating to the actor's conduct, reasonable
minds can differ as to whether the conduct lacks reasonable care, it is the
function of the jury to make that determination."). This case was
submitted to a competent jury which, after hearing all of the evidence
presented at trial, found that Charleston Station acted unreasonably
under the circumstances. We must give significant deference to the jury's
findings. 4 A.D. v. Cal. Highway Patrol, 712 F.3d 446, 453 (9th Cir. 2013)
4As to duty, we are not creating a rule that all defendants like
Charleston Station have a duty to perform CPR or use an AED if one is
available. Instead, we are simply holding that Charleston Station had an
affirmative duty to act reasonably under the circumstances. As to breach,
we are not creating a rule that defendants in all cases act unreasonably if
they fail to perform CPR or use an AED in an emergency Instead, we are
simply reaffirming the basic principle of tort law that "[t]he
reasonableness of [a defendant's] actions [is] a factual determination that
the jurors could make based upon all the evidence presented at trial,"
including the fact that Charleston Station's employees were trained in
CPR and had an AED at their disposal. K-Mart, 109 Nev. at 1189, 866
P.2d at 280-81. Hypothetically, there could still be situations in which a
business does not perform CPR or use an AED in an emergency, but is still
found by a jury to have acted reasonably based upon the unique
circumstances presented in that case.
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("[A]lthough under de novo review we do not defer to the district court's
decision to deny [a motion for a judgment as a matter of law], we give
significant deference to the jury's verdict and to the nonmoving parties ...
when deciding whether that decision was correct."). Accordingly, we
conclude that Charleston Station was not entitled to a judgment as a
matter of law or a new trial based upon our holding in Lee. 5
Charleston Station is not entitled to a judgment as a matter of law or
a new trial based upon NRS 41.500
As an initial matter, Stephens argues that Red Rock waived
its immunity arguments because it did not assert NRS 41.500 as an
affirmative defense in its answer or pre-trial memorandum. Although
Stephens is correct that "Mil affirmative defense not pleaded in the
answer is waived," State, Univ. & Cmty. Coll. Sys. v. Sutton, 120 Nev. 972,
987, 103 P.3d 8, 18 (2004), an affirmative defense can nevertheless be
5 Charleston Station argues that affirming the judgment in this case
will be detrimental to public policy, because it will discourage businesses
from training their employees in the use of CPR and AEDs. Charleston
Station further argues that businesses will be discouraged from having
AEDs at all. We disagree. There are advances in medical technology
every year. Employees trained in the use of CPR and AEDs can utilize
these life saving techniques and devices in emergencies. The fact that
Charleston Station's employees were trained in CPR and had an AED at
their disposal was a material fact for the jury to consider along with all of
the other facts presented at trial. See Restatement (Third) of Torts: Liab.
for Physical & Emotional Harm § 40(a) cmt. d (2012) (finders of fact can
consider that "advancements in medical technology . . . may enable an
actor to provide more than just first aid."). We conclude that if anything,
this case will have the effect of encouraging businesses to use these life
saving techniques and devices in emergencies. Indeed, businesses should
not be discouraged from having and using AEDs, because if they actually
use these devices in emergencies, they will be shielded from liability under
Nevada's good samaritan statutes. NRS 41.500(8)-(9).
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considered "if fairness so dictates and prejudice will not follow." Whealon
u. Sterling, 121 Nev. 662, 666, 119 P.3d 1241, 1244 (2005) (internal
quotation omitted); see also Kleinknecht v. Gettysburg Coll., 989 F.2d 1360,
1373 (3d Cir. 1993) (holding that the defendant did not waive the good
samaritan defense where it asserted immunity in its motion for summary
judgment). We conclude that Charleston Station did not waive the
defense because it argued NRS 41.500 immunity in numerous motions and
hearings, thereby giving Stephens notice and the opportunity to respond.
Whealon, 121 Nev. at 666, 119 P.3d at 1244. Moreover, in light of the fact
that Stephens waited until the last day of trial to object to Charleston
Station's good samaritan defense, Stephens cannot demonstrate that he
was prejudiced by Charleston Station's failure to assert NRS 41.500 as an
affirmative defense.
Although Charleston Station did not waive its NRS 41.500
defense, we conclude that its NRS 41.500 arguments still fail on the
merits. NRS 41.500(1) reads, in relevant part:
"any person . . . who renders emergency care or
assistance in an emergency, gratuitously and in
good faith, . . is not liable for any civil damages
as a result of any act or omission, not amounting
to gross negligence, by that person in rendering
the emergency care or assistance or as a result of
any act or failure to act, not amounting to gross
negligence, to provide or arrange for further
medical treatment for the injured person.
(Emphasis added). In Sims u. Gen. Tel. & Electronics, this court concluded
that "gratuitously and in good faith" means "situations in which the
rescuer was not already under a duty to act." 107 Nev. 516, 526, 815 P.2d
151, 157 (1991), overruled on other grounds by Tucker v. Action Equip. &
Scaffold Co., 113 Nev. 1349, 951 P.2d 1027 (1997), overruled on other
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grounds by Richards v. Republic Silver State Disposal, Inc., 122 Nev. 1213,
148 P.3d 684 (2006). After our decision in Sims, NRS 41.500 was
amended to define "gratuitously" to mean "that the person receiving care
or assistance is not required or expected to pay any compensation or other
remuneration for receiving the care or assistance." 1999 Nev. Stats. 936,
S.B. 453, 70th Leg., at 936 (Nev. 1999).
However, two years after NRS 41.500 was amended, this court
considered the applicability of the amended version to cases where the defendant
had a preexisting duty to act. See Lee, 117 Nev. at 298 n.3, 22 P.3d at 213
n.3. In Lee, we concluded in dictum that despite NRS 41.500's new
definition of "gratuitously," the Sims' preexisting duty rule still applied to
NRS 41.500(1). Id. In reaching this conclusion, we stated the following:
Notably, the Nevada Legislature has also enacted
a statute that encourages rendering first aid.
Thus, in Nevada, one "who renders emergency
care or assistance in an emergency, gratuitously
and in good faith, is not liable for any civil
damages as a result of any act or omission, not
amounting to gross negligence." NRS 41.500(1).
However, this statute does not apply to this case.
See Sims, 107 Nev. at 526, 815 P.2d at 157.
117 Nev. at 298 n.3, 22 P.3d at 213 n.3.
Like in Lee, which was decided after NRS 41.500 was
amended, we again conclude that the protections in NRS 41.500(1) do not
apply when the defendant had a preexisting duty to help the plaintiff.
Accordingly, because Charleston Station was under a duty to "take
reasonable affirmative steps to aid" Stephens, Lee, 117 Nev. at 297, 22
P.3d at 213 (internal quotation omitted), NRS 41.500 is not applicable to
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this case.° Accordingly, we 7
ORDER the judgment of the district court AFFIRMED.°
J.
cc: Hon. Jerry A. Wiese, District Judge
Ara H Shirinian, Settlement Judge
Pyatt Silvestri & Hanlon
Lemons, Grundy & Eisenberg
Law Office of Daniel Marks
Goldberg & Osborne
Eighth District Court Clerk
°Because NRS 41.500 is inapplicable to this case, we conclude that
the district court did not err in rejecting Charleston Station's proposed
jury instructions relating to NRS 41.500.
7 We have considered the parties' remaining arguments and conclude
that they are without merit.
°Oral argument in this case took place before a three-member panel.
The case was subsequently transferred to the En Banc Court.
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PICKERING, J., with whom HARDESTY, C.J., and DOUGLAS, J., agree,
dissenting:
The majority upholds the $1.6 million judgment against the
Red Rock Resort and Casino, deeming the reasonableness of its response
to Stephens's medical emergency a fact question for the jury, not a legal
question for the court. I respectfully disagree. The Nevada Legislature
and this court have previously addressed the liability of business owners
to customers who, through no fault of the business owner, suffer a medical
emergency on premises. While the business owner cannot ignore the
emergency and must provide basic aid and summon professional medical
help, this duty does not require the business to have its non-medical, lay
employees administer CPR or attempt to use an AED, assuming one is
available. A contrary rule—holding a business liable for having AEDs on
site and training employees in CPR—would discourage businesses from
voluntarily adopting these prophylactic, potentially life-saving measures,
since it would penalize them with the risk of unwanted liability for the
acts and omissions of their lay employees in responding to medical crises.
On the uncontested facts, the district court could and should have granted
judgment as a matter of law in favor of Red Rock. In not correcting the
district court's legal error, the majority deviates from Nevada statutory
and case law and announces a rule that no other court in the United
States has endorsed.
I.
Larry Stephens suffered a heart attack minutes after he and
his wife and their friends entered the Red Rock Resort and Casino. A Red
Rock dispatcher immediately summoned an ambulance. Thanks to Red
Rock's direct line to the local ambulance services, and its staff who
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directed the ambulance to the proper entrance, trained paramedics arrived
at Stephens's side within six minutes of his •collapse. A 27-year-old Red
Rock security guard, Franco, attended to Stephens until the paramedics
arrived, while Stephens's wife and friends looked on. Franco first tried to
obtain a response from Stephens, then placed a hand on his chest to
determine if Stephens was breathing, and finally rolled Stephens onto his
side so as to reduce the risk of airway obstruction or choking. Believing
Stephens was breathing, Franco did not attempt CPR; nor did he call for
one of five automated external defibrillators (AED) on premises to be
brought and used. The first paramedic to arrive did not perform CPR or
use an AED on Stephens either. The second paramedic to arrive started
CPR. Stephens lived, but suffered anoxic brain injuries, for which he sued
RedS Rock, recovering a $1.6 million judgment for Red Rock's negligence.
Stephens concedes that Red Rock did not cause his heart attack and that
its prompt response to his medical crisis saved his life. His theory was
and is that Red Rock acted negligently because its employees did not
attempt CPR or use an AED on Stephens before the paramedics arrived.
A.
"In Nevada, as under the common law, strangers are generally
under no duty to aid those in peril." Lee v. GNLV Corp., 117 Nev. 291,
295, 22 P.3d 209, 212 (2001). The relationship between a business
proprietor and its patrons justifies an exception to this general no-duty
rule, but the exception is limited to providing basic first aid and
summoning expert medical assistance to a patron in need. Id. at 298-99,
22 P.3d at 213-14; see Restatement (Second) of Torts § 314A (1965). Thus,
in Lee, this court affirmed the district court's grant of summary judgment
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in favor of the Golden Nugget in a case in which an inebriated restaurant
patron choked on food and died. 117 Nev. at 299, 22 P.3d at 214. In Lee,
as here, the resort attended to its patron, Sturms, and immediately
summoned an ambulance; it did not perform the Heimlich maneuver to
clear Sturms's airway, however, an omission his widow alleged amounted
to negligence. Id. at 293-94, 22 P.3d at 210-11. While recognizing that
reasonableness' is usually an issue for the jury," we held that, "in some
clear cases, the nature and extent of the defendant's duty is properly
decided by the court," id. at 296, 22 P.3d at 212, and that "GNLV's
employees acted reasonably as a matter of law by rendering medical
assistance to Sturms 1 and summoning professional medical aid within a
reasonable time." Id. at 299, 22 P.3d at 214 (emphasis added). In so
holding, we rejected the argument that Golden Nugget's duty required it
to do more than provide basic aid and summon professional medical help:
"In this case, GNLV's employees were under no legal duty to administer
the Heimlich maneuver to Sturms." Id.
Our 2001 holding in Lee is not, as the majority suggests,
outdated or unusually fact-specific. It is mainstream law. See, e.g.,
Restatement (Third) of Torts: Liability for Physical & Emotional Harm §
40 cmt. d (2012) (noting that, "an individual with an incipient heart attack
'The majority would distinguish Lee on the basis that the Golden
Nugget's employees attempted CPR on Sturms while the Red Rock's
Franco did not attempt CPR on Stephens. This distinction is legally
meaningless: Sturms was not having a cardiac episode; he was choking on
food. The attempt at CPR for Sturms was irrelevant to him as the
Heimlich maneuver would have been to Stephens. The relevant first aid
was checking Sturms's pulse and laying him on the floor, similar to the aid
Franco provided Stephens.
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does not impose the burden of paying for necessary medical care on a hotel
by checking into the hotel. In the case of illnesses, actors will frequently
satisfy their duty by ascertaining that no emergency requiring immediate
attention exists and by summoning appropriate medical care."); id.
Reporter's Note to cmt. d (citing Lee with evident approval and describing
it as "characterizing the duty owed by a restaurant to a patron who was
choking on food as one of reasonable care under the circumstances, but
holding that restaurant was not negligent as a matter of law for not
employing Heimlich maneuver").
Lee's limited-duty rule applies not only to the use of the
Heimlich maneuver on choking diners, but also to the use of AEDs and
performance of CPR on patrons who suffer heart attacks while visiting a
business. As the California Supreme Court noted just last year in
Verdugo v. Target Corp., 327 P.3d 774, 794 (2014), "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." (Emphases in
original.) To similar effect is L.A. Fitness International, LLC v. Mayer,
980 So. 2d 550, 558-559 (Fla. Dist. Ct. App. 2008), where the Florida
District Court of Appeal held that an athletic club's employees were under
no legal duty to administer CPR to the club's patrons because CPR "is
more than mere first aid." Id. at 559, 561. Further, the court held that
the athletic club did not have a duty to keep an AED on its premises and
use it on the plaintiff patron who died as a result of cardiac arrest. Id. at
561-62. And, in a case factually indistinguishable from this one, the
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Mississippi Court of Appeals affirmed summary judgment in favor of a
casino where there was "no evidence the casino failed to perform the only
relevant duty recognized by [Mississippi's] supreme court—the duty to
render reasonable first aid"—despite that the resort casino employees did
not perform CPR or use a defibrillator on a stricken patron who suffered a
heart attack. O'Gwin v. Isle of Capri–Natchez, Inc., 139 So. 3d 783, 789-90
(Miss. Ct. App. 2014); see also Lundy v. Adarnar of N.J., Inc., 34 F.3d
1173, 1179 (3d Cir. 1994) (holding that a casino's duty to take reasonable
steps to render first aid "does not extend to providing all medical care that
the carrier or innkeeper could reasonably foresee might be needed by a
patron").
With no case law to support its holding, the majority invokes
section 40 of the Restatement (Third) of Torts, specifically, comment .d's
reference to "advancements in medical technology that may enable an
actor to provide more than just first aid." But as the Reporter's Notes to
comment d emphasize, this reference directs readers to the 2004 Federal
Aviation Authority regulation requiring airlines to carry defibrillators
aboard aircraft with flight attendants, 14 C.F.R. § 121.803—a duty
imposed by regulation in an environment where, because planes cannot
land the minute a medical emergency arises, immediate medical
assistance cannot be summoned. See Matthew L. Wald, Saving Lives in
the Sky, N.Y. Times May 2, 2004, § 5, at 2, cited in Restatement (Third) of
Torts, § 40 cmt. d Reporter's Notes. The Restatement's reliance on an
FAA regulation underscores the policy choices involved: If a business is to
be required, on penalty of liability in tort, to provide customers advanced
medical assistance, specific regulations or statutes imposing that
obligation should exist, enacted with notice to those affected and with due
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consideration to cost, benefit, risk, and effectiveness. Here, in Nevada, the
Legislature has required placement of AEDs in only very limited
circumstances, not including ordinary businesses or hotels like the Red
Rock. See NRS 450B.600 (requiring AEDs in certain government
buildings); NRS 450B.620 (authorizing their acquisition in schools,
medical facilities and health clubs). And, in an effort to encourage
voluntary acquisition of AEDs, the Legislature has added a provision to
Nevada's good Samaritan statute, NRS 41.500(9), providing that, "A
business or organization that has placed an automated external
defibrillator for use on its premises is not liable for any civil damages as a
result of any act or omission, not amounting to gross negligence, by the
person rendering such care" provided certain criteria are met) (emphasis
added); see also NRS 41.500(6) (similarly immunizing "acts or omissions"
by persons trained in CPR) (emphasis added).
Neither the common law nor our Nevada statutes support the
proposition that a lay employee, such as the 27-year-old security guard,
Franco, exposes a business to liability in tort where, as here, he promptly
summons emergency medical aid and provides basic first aid while
awaiting their arrival. If liability is to attach in these circumstances,
owing to the business's voluntary acquisition of AEDs and basic CPR
training of certain personnel, that choice is for the Legislature, not this
court.
B.
The majority also fails to come to terms with Nevada's good
Samaritan statute, NRS 41.500, which, at minimum, requires reversal
and remand for a new trial before a properly instructed jury. With certain
exceptions not relevant here, NRS 41.500(1) provides that,
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any person in this State who renders emergency
careS or assistance in an emergency, gratuitously
and in good faith, . . . is not liable for any civil
damages as a result of any act or omission, not
amounting to gross negligence, by that person in
rendering the emergency care or assistance or as a
result of any act or failure to act, not amounting to
gross negligence, to provide or arrange for further
medical treatment for the injured person.
An earlier version of this statute left "gratuitously" undefined, a gap this
court filled in Sims v. General Telephone & Electric, where we defined
"gratuitously" to mean "situations in which the rescuer was not already
under a duty to act." 107 Nev. 516, 526, 815 P.2d 151, 157 (1991),
overruled on other grounds by Tucker v. Action Equip. & Scaffold Co., 113
Nev. 1349, 951 P.2d 1027 (1997). But in 1999, the Nevada Legislature
amended NRS 41.500 to give a legislative definition of "gratuitously" much
narrower than ours in Sims. 1999 Nev. Stat., ch. 194, § 1, at 936. 2 Today,
NRS 41.500(10) declares that, as used in NRS 41.500, "gratuitously"
simply "means that the person receiving care or assistance is not required
or expected to pay any compensation or other remuneration for receiving
the care or assistance."
2Lee cites Sims as a basis for rejecting the application of NRS
41.500. 117 Nev. at 297 n.3, 22 P.3d at 213 n.3. Of note, the events giving
rise to the incident in Lee predated the 1999 amendment that added
subparagraph 10 to NRS 41.500 and, from what appears in Lee, NRS
41.500(10) was neither argued nor addressed.
3 0f
note, the 1999 Legislature not only amended NRS 41.500 to add
a narrower definition of "gratuitously," but also added the provisions
specifically protecting persons who acquire and use AEDs or undertake
CPR training from liability. See 1999 Nev. Stat., ch. 194, § 1, at 936.
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The jury in this case was given special interrogatories asking
whether it "utilized" negligence or gross negligence in arriving at its
verdict. It answered "yes" to negligence and "no" to gross negligence.
These answers do not make clear whether it found no gross negligence, or
that it didn't reach the question of gross negligence, resolving the case on
negligence instead. Compounding the problem were the incomplete
instructions the district court gave on the good Samaritan rule, which
seemingly limited its application to the CPR issues in the case. At
minimum, on this record and given NRS 41.500's plain application, this
case should be reversed and remanded for a new trial with proper
instructions on the good Samaritan rule.
By its terms, NRS 41.500(1) (and arguably its subsections
addressing non-liability for acts or omissions in connection with CPR and
AEDs) applies. Stephens "receiv[ed] care or assistance" from Red Rock for
which "compensation or other remuneration" was not "required or
expected" to be paid, satisfying the requirement that the emergency
services be provided "gratuitously." NRS 41.500(1), (10). Emergency
services were "rendered," in that Franco placed his hands on Stephens's
chest to check for breathing and rolled him onto his side in a "recovery
position" to avoid airway obstruction. While Stephens maintains that
Franco should have performed CPR or called for and used one of the AEDs
on premises, the statute immunizes good Samaritans for "acts or
omissions" and, going further, for injuries suffered "as a result of any act
or failure to act, not amounting to gross negligence, to provide or arrange
for further medical treatment for the injured person." NRS 41.500(1).
Furthermore, since Red Rock's duty did not extend beyond providing basic
first aid and summoning professional medical help, its lay employees did
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not have a preexisting duty to administer CPR or summon and use an
AED in the six-minute window they had. See Abramson v. Ritz Carlton
Hotel Co., 480 Fed. Appx. 158, 163 (3rd Cir. 2012) (holding that New
Jersey's good Samaritan statute immunized the hotel from liability for not
having a functioning AED or oxygen, since "the preexisting duty is a
limited one and the alleged negligence is the failure to provide a level of
assistance beyond that required by the preexisting duty" (internal
quotation omitted)). Thus, by its plain terms, the jury should have been
instructed that, unless they found gross negligence, the good Samaritan
rule in NRS 41.500(1) applies to insulate Red Rock from liability in this
case.
I am sympathetic to the Stephenses. However, neither the
common law nor our statutory law supports the imposition of liability for
negligence in this case. In fact, it is at odds with the Legislature's efforts
to encourage businesses to voluntarily train employees in CPR and
acquire AEDs. Upholding liability in this case is also at odds with the
good Samaritan rule, which supports liability only in cases involving gross
negligence, as to which there was no affirmative finding here.
For these reasons, I respectfully dissent.
J.
We concur:
teLlit-\ C.J.
Hardesty
J.
Douglas
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