Right now, the California Supreme Court is considering the answer to the question of whether businesses have a duty to have defibrillators on hand. On August 31, 2008, Mary Ann Verdugo and her family were shopping in a Target store in Pico Rivera when the 49-year-old suffered cardiac arrest and died. In a wrongful death lawsuit filed by her family against Target, they allege that while paramedics at the Los Angeles Fire Department were called, it took them several minutes to arrive at the store, locate Ms. Verdugo, and begin treating her. The Verdugos claim that Target was indifferent to the fact that cardiac arrest victims only have about five minutes in which to receive lifesaving first aid with an automated external defibrillator (AED). They blame Ms. Verdugo's death on Target and claim the department store breached its duties to its employees and customers by not having the life saving device on hand that they say would have saved Mary Ann's life. The Verdugos' lawsuit notes that Target sold AEDs on the internet for about $1,200.
The question before the California Supreme Court is whether, as the Verdugos claim, there is a common law duty that required Target to have an AED available. California has legislation requiring AEDs in government buildings and gyms, however, there is no statutory requirement applicable to Target or most other businesses to supply AEDs. California has enacted statutes providing immunity from civil liability for good Samaritans who use an AED on someone in distress and for those who provide AEDs in their establishment as long as they comply with certain maintenance, testing, and notice requirements. A federal judge rejected the Verdugos' claim that there was a common law duty, so they appealed that decision to the Ninth Circuit Court of Appeals, which sent the question to the California Supreme Court. One Ninth Circuit Judge dissented and sided with the Verdugos, noting the foreseeability of a customer experiencing sudden cardiac arrest in the store, the insignificant burden of acquiring an AED and providing training regarding its use, and the certainty of death if an AED is not readily available. Some studies indicate that as many as 90% of sudden cardiac arrest victims who receive a defibrillating shock treatment within two minutes survive, while most of those untreated by 10 minutes will die.
Many in the business community are concerned that if the California court finds there is a duty, it will create a slippery slope and open the door to a new wave of lawsuits. While the burden on a major retailer to purchase the AEDs may not be significant, it may be a burden for smaller businesses if the duty is found to apply to them. There is also concern that a finding that there is a duty could open the door to businesses being required to provide other lifesaving equipment and supplies. In addition, businesses worry that a decision could impose a duty on them that goes beyond customers and applies to employees and others on the premises of a business.
Business owners should carefully review the California Supreme Court decision when it is issued to determine what impact it may have on their operations. Businesses should also review their insurance program to determine if they have adequate coverage to protect themselves against this and other types of liabilities.
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