California Retailers Have No Duty to Provide Defibrillators

A woman was shopping when she experienced sudden cardiac arrest. There was no automatic external defibrillator (AED) in the store. By the time paramedics arrived the woman had died.


The woman’s family sued the store alleging that, as a commercial property owner, the store had a common-law duty to maintain and make available an AED in the store. The United States District Court for the Central District of California dismissed the family’s claim. The trial court held that the store had no such duty.


The Ninth Circuit United States Court of Appeals affirmed. The court held that the store had no common law duty to provide an AED in its store.


The store had no common law duty to provide an AED in its store. In so holding, the court followed the decision of the California Supreme Court answer to the certified question. The California Supreme Court concluded that existing California statutes relating to the acquisition and use of AEDs did not preclude the court from determining whether such a duty should be recognized under California common law, but that generally applicable principles and limitations regarding the existence of a common law duty that were embodied in past California decisions did not support recognition of such a common law duty. A business entity has a common-law duty to its patrons on its business premises to take only reasonable action to protect or aid patrons who sustain an injury or suffer an illness while on the businesses premises. This duty includes undertaking relatively simple measures such as providing assistance to their customers who become ill or need medical attention.


A general common law duty to acquire and make available an AED for the use of its patrons would impose considerably more than a minor or minimal burden on a business establishment. The court reasoned that when the precautionary medical safety measures that a plaintiff contends a business should have provided are costly or burdensome rather than minimal, the common law does not impose a duty on a business to provide such safety measures in the absence of a showing of a heightened or high degree of foreseeability of the medical risk in question. In the absence of at least a showing of heightened foreseeability of the particular medical risk at issue, the policy decision whether a particular type of business (or businesses in general) should be required to provide a costly or burdensome precautionary safety measure for use in the event of a possible medical emergency resulting from a patron's medical condition is appropriately made by the legislature, rather than by a jury on a case-by-case basis guided only by a general, unfocused “reasonable care” standard after a medical emergency has already occurred. The court found that the burden of requiring businesses to provide an AED included not only the initial cost of the AEDs themselves, but also significant obligations with regard to the number, the placement, and the ongoing maintenance of such devices, combined with the need to regularly train personnel to properly utilize and service the AEDs and to administer CPR, as well as to have trained personnel reasonably available on the business premises.


The plaintiffs' complaint failed to point to any aspect of the store's operations or the activities that its patrons engaged in on its premises to indicate a high degree or heightened foreseeability that its patrons will suffer sudden cardiac arrest on its premises. The risk of death from sudden cardiac arrest in a big-box store is not any greater than the risk of death from sudden cardiac arrest that occurs at any other location that is equally or more distant from existing emergency medical services. The California Supreme Court concluded that, under California law, the store's common law duty of care to its customers did not include a duty to acquire and make available an AED for use in a medical emergency.


The Ninth Circuit United States Court of Appeals affirmed the trial court’s dismissal of the families claims.


See: Verdugo v. Target Corp., 2014 WL 5438376 (C.A.9 (Cal.), October 28, 2014) (not designated for publication).


See also Medical Law Perspectives, November 2013 Report: Diagnosis and Treatment of Heart Attacks: Liability Issues


See also Medical Law Perspectives, February 2013 Report: Emergency Medical Services: Liability and Immunity for Medical Rescue