Retailers in California Not Required to Provide Automatic External Defibrillators

June 2014

In 2008, 49-year-old Mary Ann Verdugo suffered a sudden cardiac arrest while shopping in a Southern California Target store.  Target’s employees called 911, but the paramedics were unable to revive Mary Ann.  Mary Ann’s family subsequently filed a lawsuit against Target for wrongful death, alleging that Target should have had an Automatic External Defibrillator, or AED, on hand in case of medical emergencies like Mary Ann’s.  Last week, the California Supreme Court unanimously ruled that Target does not have a duty to keep AEDs in its stores.

The Court noted that while the state legislature has mandated that AEDs be available in certain locations (for example, in health clubs and certain medical facilities), Health and Safety Code section 1797.196(f) establishes that the applicable state statutes should not be interpreted to require building owners or managers to acquire and make available AEDs in their buildings (and although neither the statutory language nor the Court specifically addresses whether this provision is extended to retailers (as opposed to just building owners and managers) such an extension seems to be implicit).  If a business does provide AEDs, Civil Code section 1714.21 grants immunity from civil liability for damages resulting from the use of the AED, but only if the business complies with Health and Safety Code section 1797.196, which contains a substantial number of requirements including checking the AED for readiness after every use and at least every 30 days, providing training for at least one employee for every AED unit on hand, and having a trained employee available during operating hours to respond to an emergency.

Despite the lack of any statute requiring Target to provide AEDs, the Verdugo family claimed that AEDs should be part of Target’s common law obligation to provide reasonable medical care to its customers in the event of an emergency.  They stated that given the large number of cardiac arrests in the United States every year (over 300,000), and the large number of Target customers, it was reasonably foreseeable that someone would suffer a cardiac arrest in one of Target’s stores.  They also noted that because AEDs are relatively inexpensive and easy to use, obtaining and using them would not place a large burden on Target.  Target agreed that it does have an obligation to provide some assistance to a customer who suffers cardiac arrest in one of its stores, but claimed that it fulfilled its obligation in this situation by immediately summoning emergency medical personnel and that it was not required to have an AED available.

The court agreed that Target’s common law duty of care owed to its customers does not include the acquisition and use of an AED.  In coming to this conclusion, the court looked primarily at two factors: (1) the foreseeability of a cardiac arrest occurring in a Target store; and (2) the burden that providing an AED would place on Target.  They noted that the risk of a cardiac arrest occurring in a Target store is no greater than in any other public location, and that the burden placed on businesses providing AEDs is “more than a minor or minimal burden” based on the numerous obligations imposed by statute.  The court noted that having an AED available is not as simple as it seems—it requires proper maintenance of the unit and training of employees on the unit’s use.

Currently, only one state—Oregon—has singled out large retailers (50,000+ square feet) as businesses required to provide AEDs, and the Verdugo court invited the California legislature to take up this issue, as the legislature is in the best position to examine the public policy considerations connected to imposing such a duty on retailers.  If the California legislature decides to craft legislation to address this issue, they would need to consider how to define the types of businesses that would fall under such a statute—would it be based on square footage of the store?  The number of customers?  The company’s ability to afford compliance with the statute?  There are other considerations in determining whether this should be included in a store’s duty to its customers as well.  Some reports have noted that an AED must be used along with CPR in order to achieve the best results, which could require additional training of employees on proper CPR procedures.  Plus, even if AEDs are available and intuitive to use, a store’s employees would have to recognize that the device should be used in a given situation, and, like any device, they could fail or malfunction.  In addition, if a statute like this was passed, it could change the expectations that customers have when shopping in retail stores—could it lead to a requirement that stores provide EpiPens to counteract allergic reactions or inhalers to ease an asthma attack?  Requiring retailers to anticipate all of the potential medical conditions of their customers, rather than focusing on the physical condition of the store, could lead to a massive increase in liability.  To the retail industry’s relief, based on current state law, the California Supreme Court has shielded businesses from having to address these concerns.