Silence is golden

The best defense against the Verdugo v. Target ruling on a business’s duty to patrons who suffer a medical emergency on its premises

2015 March

After almost two years of briefing, including amicus support from Consumer Attorneys of California, among others, in June, 2014, the California Supreme Court issued its decision in Verdugo v. Target Corp. (2014) 59 Cal.4th 312. A blow to the plaintiffs’ bar, the Court held that Target’s common-law duty of care to its customers did not include a duty to acquire and make available an automated (or automatic) external defibrillator (AED) for use in a medical emergency. Although, at first glance, the Court’s opinion was extremely narrow, trial lawyers need to be armed against the inevitable onslaught of defense arguments that will attempt to expand Verdugo’s reach to limit the common-law duty of business entities to provide aid to patrons who are injured or become ill on their premises.

After providing the factual and legal landscape upon which Verdugo was decided, this article offers some suggestions for limiting Verdugo’s reach.

Factual and procedural background

Mary Ann Verdugo was shopping at a large Target department store when she suffered a sudden cardiac arrest and collapsed. In response to a 911 call, paramedics were dispatched from a nearby fire station. It took them several minutes to reach the store, and additional time once they arrived, to reach Verdugo. By then, although paramedics attempted to revive Verdugo, they were unsuccessful. Target did not have an AED. Verdugo was only 49 years old when she died.

Verdugo’s mother and brother brought a wrongful death action against Target. The United States District Court for the Central District of California granted Target’s motion to dismiss, and on appeal, the Ninth Circuit certified the question to the California Supreme Court. The California Supreme Court first analyzed and concluded that an existing statute governing eligibility for immunity from civil liability for acts or omissions in the rending of emergency care by use of an AED did not preempt the courts from recognizing a common-law duty to provide an AED. The Court then engaged in the analysis that is the subject of this article.

A business entity’s duty to its patrons who are injured or fall ill on its premises

As a general rule, in California, an individual or entity does not have a common-law duty to come to the aid of another person whom the individual or entity had not injured. (See Rest.2d Torts, § 314, p. 116.) However, California law distinguishes business entities from this general rule.

Because of the so-called “special relationship” a business entity has with its patrons, California courts have recognized that a business may have a common-law duty to take reasonable action to protect or aid patrons who sustain an injury or suffer an illness while on the business’s premises. For example, a business may have such a duty when “undertak[ing] relatively simple measures such as providing ‘assistance [to] their customers who become ill or need medical attention....’” (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 241; see Breaux v. Gino’s, Inc. (1984) 153 Cal.App.3d 379, 382.)

Certain “special relationships” are discussed in Section 314A of the Restatement Second of Torts, entitled “Special Relations Giving Rise to Duty to Aid or Protect.” Among the “special relationships” that justify the duty, is a common carrier’s duty to its passengers to take reasonable action to protect them against unreasonable risk of physical harm, and to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others. An innkeeper owes a similar duty to its guests. A “special relationship” is also recognized where one who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection.

The “special relationship” at issue in Verdugo, arises from a fourth scenario, where a possessor of land holds it open to the public. That land-possessor is under a similar duty to the members of the public who enter in response to his invitation. Verdugo observed that cases have interpreted this relationship to encompass a business entity, like Target, whose business premises are open to the public, and more broadly to reflect the duty owed by business entities to patrons who are injured or fall ill while on the business’s premises. (Verdugo, supra, 59 Cal.4th at 335, fn. 17.)

Verdugo’s analysis relies on third-party criminal conduct cases.

The Supreme Court distilled the question before it as: “whether, under California law, the common law duty of reasonable care that [Target] owes to its business customers includes an obligation to obtain and make available on its business premises an [AED] for use in a medical emergency.” (Verdugo, supra, 59 Cal.4th at 316.)

Target acknowledged its duty to provide assistance to Verdugo, but argued that it had satisfied its common-law duty of reasonable care by having immediately summoned emergency medical personnel upon learning of Verdugo’s collapse. It also argued, at most, it might be required to provide simple first-aid measures, but it had no duty to acquire an AED in advance for potential use in the event of such a medical emergency.

In contrast, plaintiffs (Verdugo’s mother and brother) asserted that because of the important potentially life-saving role that an AED may play in the event of sudden cardiac arrest, the size of the Target store in question, the number of customers who patronize the store, and the relatively low cost of an AED device, Target’s common law duty of reasonable care to its patrons included an obligation to obtain an AED. Additionally, plaintiffs asserted that a jury could properly find that Target acted unreasonably and negligently in failing to do so, and that such negligence was a substantial cause of the sudden-cardiac-arrest victim’s death.

The Court recognized a few Court of Appeal cases directly involving the question of a business’s common-law duty to provide first aid or medical assistance to a patron who is injured or becomes ill on the business’s premises. However, the Court found more analogous (and persuasive) cases involving the distinct but related question whether a business has a common-law duty to take steps to protect its patrons from the criminal activity of third persons that endangers such patrons on its premises.

In considering the scope of a business’s common-law duty to take reasonable steps to protect the health of its patrons while the patrons are on the business’s premises, the Court found persuasive the distinction courts have made in the third-party criminal-conduct cases, between the business’s duty to provide precautionary protections against future criminal conduct toward patrons, versus the business’s duty to respond to such conduct. Verdugo drew a similar distinction between precautionary steps a business must take against future illness and injury of its patrons, versus its duty to respond after-the-fact. However, because plaintiffs only challenged Target’s failure to take the precautionary step of acquiring and making available an AED in advance of a medical emergency, the Court limited its focus to that question. (Verdugo, supra, 59 Cal.4th at 337-338.)

Acknowledging analytical differences between the criminal cases and the question before the Court, the Court nevertheless analyzed how past California cases have evaluated a business’s duty to provide precautionary measures to protect patrons against potential third-party criminal conduct. The Court focused on two factors in those third-party criminal conduct cases: (1) the degree of foreseeability that the danger will arise on the business’s premises, and (2) the relative burden that providing a particular precautionary measure will place upon the business. (Verdugo, supra, 59 Cal.4th at 338.) The Court found the more “onerous” a particular precautionary safety or security measure, the more courts required a “heightened” or “high degree” of foreseeability of the danger in question. The Court found the decisions “implicitly recognize” that absent such foreseeability, “determination of whether a business… should be required to provide a costly or burdensome precautionary safety measure to protect against potential future third-party criminal conduct should more appropriately be made by the Legislature than by a jury applying a general reasonableness standard in a particular case.” (Id. at p. 338-339.)

The Court then applied this analysis to the facts of the case; namely, how onerous a burden it would be for a business to acquire and make available an AED, versus how foreseeable the risk was of its patrons suffering cardiac arrests on its premises. The Court found the burden to be “considerably more than a minor or minimal burden,” due to the initial cost of the AEDs, significant obligations with regard to the number, the placement, and 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. (Verdugo, supra, 59 Cal.4th at 340.)

In contrast, the Court found, under the evidence before it, the risk of cardiac arrest at Target did not appear to be any greater risk than at any other location open to the public.

Preventing Verdugo’s negative expansion and distortion

Prior to the Court’s decision, the defense bar considered the potential implications of Verdugo to be a “Pandora’s box,” exposing not just retailers – but even commercial landlords – to lawsuits for not having a host of potential medical devices available on site, such as EpiPens, or asthma inhalers. (See e.g., http://www.nixonpeabody.com/files/169498_Retail_Alert_4JUNE2014.pdf (last accessed January 4, 2015); http://www.sedgwicklaw.com/california-supreme-court-to-determine-whether-retailers-must-provide-defibrillators-to-treat-their-business-visitors-05-30-2014/ (last accessed January 4, 2015).

Emboldened by their victory, the defense bar will undoubtedly attempt to expand Verdugo’s holding beyond AEDs, and perhaps more generally, to limit the common-law duty of a business entity to its injured patrons.

However, rarely does an opinion expend such painstaking efforts to limit its holding. Those limitations – what issues the Court explicitly declined addressing – hold the very roadmap for fending off expansion of Verdugo’s holding.

From its initial characterization of the question it posited and answered, the Supreme Court narrowly tailored its decision. The question the Ninth Circuit proposed when it submitted the case to the Court was, “In what circumstances, if ever, does the common law duty of a commercial property owner to provide emergency first aid to invitees require the availability of an [AED] for cases of sudden cardiac arrest?” (Verdugo v. Target Corp. (9th Cir. 2012) 704 F.3d 1044, 1045.) Recognizing the breadth of that question, the Supreme Court reframed the question. (Verdugo, supra, 59 Cal.4th at 316, fn. 1.) In so doing, the Court explained, “we do not resolve abstract questions of law but rather address only issues that ‘are presented on a factual record.’” This language is important because it can help rein-in any defense attempts to apply the holding to other medical devices, or other kinds of businesses, for instance.

Beware of any attempt by your opponent to argue Verdugo held that a business entity satisfies its common-law duty to provide assistance to an injured or ill patron by promptly summoning emergency medical assistance. The Court foresaw that its decision might be broadly interpreted in that way. However, the Court stated, “[w]e have no occasion in this case to determine” that issue. “Plaintiffs’ claim in this case rests solely on Target’s failure to acquire and make available in its department store an AED for use in a medical emergency. Accordingly we limit our consideration to this issue only.” (Verdugo, supra, 59 Cal.4th at 336-337, emphasis added.)

Before leaning too far the other direction, however, take heed. The Court also explicitly declined to rule on the question of whether a business’s common-law duty of reasonable care, in some circumstances, may require it to take “some additional measures beyond summoning emergency medical assistance.” (Ibid.)

Another issue upon which Verdugo chose not to opine is the scope of the common law duty that business entities owe their ill or injured patrons after they suffer from the injury at the business’s premises. If defense counsel attempts to rely on Verdugo to argue that defendant business had no common-law duty to assist a patron from an ongoing threat to the patron’s health and safety after the patron had experienced an injury or illness on the business’s premises, be sure to challenge counsel. Verdugo did not opine on that issue. “In the present case, plaintiffs do not claim that Target failed to take adequate steps to protect its patron after she suffered sudden cardiac arrest. Thus, this second aspect of a business’s common law duty is not implicated in this case.” (Id. at 338, emphasis added.)

The nature of AEDs may also help to distinguish Verdugo and limit its applicability. For instance, the Court noted the duty “to acquire and make available” an AED also must “entail a variety of related obligations, including proper maintenance of the AED, AED and CPR training and practice, and staffing of trained personnel.” (Id. at 336, fn. 18, 340.) A variety of statutes govern obligations concerning the number, placement, ongoing maintenance of, etc., for businesses with AEDs. The Court also cited the current cost of AEDs ($1200, as reflected on Target’s Website). All of these factors influenced the Court’s analysis and conclusion that the imposition of this duty would constitute a significant burden on the business establishment.

However, other medical devices, such as an EpiPen or inhaler, may be entirely distinguishable because they require much less expense, less skill, less training, and less regulation governing their placement and use. In other words, other devices may have a significantly smaller burden or imposition on the employer. Because of the reduced burden, presumably, counsel could argue for a lower threshold of foreseeability. Nothing in Verdugo prevents such an argument.

The power of a narrowly drafted opinion

What a court does not say can be as essential for litigants as what it does say. Here, as detailed above, the court chose to limit the scope of its holding. This section provides some established principles to keep handy for objections in the event that defense counsel improperly attempts to expand Verdugo’s holding.

“‘It is axiomatic that language in a judicial opinion is to be understood in accordance with the facts and issues before the court. An opinion is not authority for propositions not considered.”’ [Citation.] ‘An appellate decision is not authority for everything said in the court’s opinion but only “for the points actually involved and actually decided.”’ [Citation.]” (People v. Knoller (2007) 41 Cal.4th 139, 154-155.) Mere observations by an appellate court are dicta and not precedent, unless a statement of law was “necessary to the decision, and therefore binding precedent [ ].” (Krupnick v. Hartford Accident & Indemnity Co. (1994) 28 Cal.App.4th 185, 199.) “‘The doctrine of precedent, or stare decisis, extends only to the ratio decidendi of a decision, not to supplementary or explanatory comments which might be included in an opinion. To determine the precedential value of a statement in an opinion, the language of that statement must be compared with the facts of the case and the issues raised.’ [Citation.]” (Gogri v. Jack in the Box Inc. (2008) 166 Cal.App.4th 255, 272.) “[W]e generally consider California Supreme Court dicta to be persuasive,” but may reject dicta that “does not, in our opinion, ‘reflect[] compelling logic.’” (Ibid.)

A “moral obligation” and call to action

After the California Supreme Court issued its answer to the Ninth Circuit, rejecting plaintiffs’ claim that Target owed a common-law duty to provide its patrons an AED, the Ninth Circuit had to affirm the district court’s dismissal of the plaintiffs’ claim. Uncomfortable with the result, however, Circuit Judge Harry Pregerson wrote a passionate and reluctant concurrence because, although the California Supreme Court controls, “that decision troubles me.” (Verdugo v. Target Corp. (9th Cir. 2014) 770 F.3d 1203, 1204.)

He wrote, “separately hoping that big box stores like Target will, at the very least, recognize their moral obligation to make AEDs available for use in a medi-cal emergency.” “Should that not come to pass, I hope that our California Legislature takes a hard look at this issue and considers a statutory standard of care that will protect consumers by requiring big box stores to make life-saving AEDs available.”

Judge Pregerson’s reluctant concurrence makes a compelling plea, grounded in the statistics of AED-related life-saving successes, ease of education and use of the devices, enormity of the big box-stores, and minimal cost of the AEDs. His argument is worth reading in its entirety.

However, one passage seemed particularly relevant to this article’s topic. Judge Pregerson discusses the “special relationship” stores like Target have with their business invitees. (Id. at 1204.) He summarizes that duty as follows: “This special relationship creates an affirmative duty that requires a business to provide first aid to invitees who become ill or injured on the premises, and ‘to care for them until they can be cared for by others.’ Restatement (Second) of Torts § 314A.” (Ibid.) He continues:

I believe that AEDs should be considered first aid. They are crucial to the survival of sudden cardiac arrest victims. They are inexpensive, nearly foolproof, and are necessary when, as happened here, paramedics cannot reach a victim in time to save the person’s life. I believe that AEDs should be as common as first aid kits.

(Ibid.)

If AEDs were to become as common as other first-aid kits (for moral, legislative, and/or consumer-related reasons), then the California Supreme Court’s balancing analysis would require re-examination.

Specifically, the California Supreme Court’s factual discussion concerning the burden of acquiring and implementing AEDs specifically opens the possibility that its analysis may become obsolete and distinguishable with the passage of time. The Legislature has already created statutes designed to encourage and incentivize the voluntary acquisition of AEDs. For instance, the Legislature has afforded immunity from potential civil liability, under specified circumstances, for all businesses that acquire AEDs and make them available to their patrons. (Civ. Code, § 1714.21, Health & Saf. Code, § 1797.196.) As these Legislative efforts succeed and AEDs become increasingly prevalent, necessarily, additional people will become familiar with, trained on, and capable of properly administering its life-saving benefits. The pool of job applicants who have acquired those skills will increase, reducing the burden on businesses to find workers with such qualifications. Furthermore, as AEDs are increasingly used, it is reasonable to assume the price per unit will reduce well below $1200.

Keep in mind that Verdugo only involves a business entity’s common-law duty – not its statutory duties to provide AEDs. The Legislature has required all health studios in California to make an AED available on their premises. (Health & Saf. Code, § 104113.) That statute was enacted in 2005, and although there are no other industry-wide requirements in California for private entities, this might change as more data concerning AED successes is acquired.

Furthermore, the Legislature might be willing to expand its statutory requirements for establishments over a certain size, as Oregon has done. In Oregon, the Legislature requires the owner of a “place of public assembly” (i.e., a single building that has 50,000 square feet or more of indoor floor space, where the public congregates for deliberation, shopping, entertainment, amusement, or awaiting transportation) to have at least one AED on its premises. (Or.Rev.Stat. § 431.690.)

Conclusion

Hopefully, Judge Pregerson’s plea is heeded and AEDs will become as common as first-aid kits. In the meantime, trial lawyers should be skeptical of any defense attempts to expand Verdugo’s reach by analogizing “similar” factual patterns, and instead, should prepare to vehemently oppose such efforts.