The California Supreme Court recently heard arguments in the case of Verdugo v. Target Corporation on an important issue that could open the floodgates to litigation for retailers and other businesses throughout California. The key question that the Supreme Court was asked to determine in Verdugo is under what circumstances, if any, a commercial property owner must make Automatic External Defibrillators (AEDs) available to customers and other business visitors for use in cases of sudden cardiac arrest. (AEDs are medical devices that can be used to treat the victims of sudden cardiac arrest. They analyze the heart rhythm of heart attack victims, determine if an electric shock is required to restore the heart to its normal rhythm and, if necessary, allow the user to administer the required electric shock.)
Verdugo is a wrongful death suit brought by the relatives of Mary Ann Verdugo, who was shopping at a Target store in Pico Rivera, California, with her mother and brother when she suffered a sudden heart attack and collapsed. Although Target did call 911 and paramedics did respond to the call within several minutes, Verdugo had died by the time that they arrived. Although Target sold AEDs to others, there were no AEDs available for use on members of the public in its store.
Verdugo’s mother and brother filed a wrongful death action against Target in California Superior Court, alleging that Target had a duty to provide AEDs in its stores. Target argued that as a commercial property owner, its only duty to provide first aid to business visitors was to call 911 to request medical assistance, and had the case removed to a federal court. The federal court dismissed the case because it agreed with Target that it did not have any legal obligation to provide AEDs. Verdugo’s mother and brother appealed to the U.S. Court of Appeals for the Ninth Circuit, which asked the California Supreme Court to determine what duty Target had, if any, in light of the lack of any clear California legal precedent.
Significantly, California has several statutes regulating the use of AEDs. Those statutes limit the liability of persons who install AEDs on their property and who use them to provide first aid to business visitors so long as they follow certain guidelines and do not engage in willful, wanton or grossly negligent conduct. However, none of those statutes requires commercial property owners (other than health clubs) to provide AEDs or persons trained to use AEDs on their properties.
Accordingly, the key issues are: (1) whether the Legislature has intended to preclude courts from imposing any liability for failing to provide AEDs through adopting AED statutes which generally do not require the provision or use of AEDs; and (2) if not, to what extent does a commercial property owner have to act to protect its business visitors, including (but not limited to) its customers.
Although the question before the California Supreme Court is technically linked to a commercial property owner’s obligation to make AEDs available to business visitors, a decision to recognize such a duty could open the floodgates to numerous other lawsuits. This is because recognizing a duty to provide AEDs based on knowledge that a visitor might have a heart attack on one’s property would raise the issue of whether commercial property owners also have to anticipate and provide medical equipment or medications for other common medical conditions. For example, a large retailer with heavy foot traffic can certainly anticipate that it will have visitors at any given time who are diabetic, highly allergic to peanuts or bee stings, or have osteoporosis or other conditions resulting in brittle bones. If the commercial property owner must focus on responding to the potential medical conditions of each guest rather than reasonably foreseeable dangers inherent to the property itself, the situations for which liability could be imposed could be virtually limitless.
On the other hand, even if retailers (and other commercial property owners) are held not to have a duty to provide AEDs, they may wish to consider doing so on a voluntary basis, taking advantage of California (and other state) laws which limit their potential liability for providing and using AEDs. Regardless, commercial property owners should pay close attention to the Verdugo case and should be ready to respond, if necessary, when the California Supreme Court renders its decision.