Opinion
No. CV 03-0477014 S
March 29, 2006
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
The plaintiffs, Mary Ann Pacello, Genevieve DeCola and Audrey DeCola, are the daughters and granddaughter, respectively, of the decedent, Ermelinda Mazzaro. Pacello is also the executrix of Mazzaro's estate. This case arises out of an incident that occurred while the plaintiffs and the decedent were guests at a United States Virgin Islands hotel that is owned and operated by the defendant, Wyndham International Incorporated. The plaintiffs allege that while in her hotel room, Mazzaro suffered a heart attack. One of the plaintiffs called the front desk for help, and approximately one-half hour later, two security guards arrived with an oxygen tank. The oxygen tank was either empty or the guards did not know how to use it. One guard left and returned ten minutes later with a second oxygen tank. Meanwhile, one of the plaintiffs attempted to administer cardiopulmonary resuscitation (CPR) to Mazzaro herself. The plaintiffs allege that the security guards were not trained as emergency responders and that they were unable to administer CPR. After another ten minutes, an ambulance arrived and transported Mazzaro to the hospital, where she was later pronounced dead.
The plaintiffs make claims of negligence with respect to the estate and negligent infliction of emotional distress with respect to Pacello and the two DeColas. The defendant has moved for summary judgment, arguing that there is no genuine issue of material fact that it discharged its duty to the plaintiffs "by immediately calling 911 in order to place the decedent in the hands of competent medical professionals." The defendant also argues that it "went beyond the scope of any duty [it] owed to the plaintiffs by taking reasonable action to give the decedent life giving aid after it learned that she was having a heart attack." The plaintiffs oppose the motion for summary judgment motion on the ground that material issues of fact exist as to whether the defendant's employees were negligent in the care they provided to Mazzaro; whether the defendant breached its duty to use reasonable care once its employees voluntarily began care for Mazzaro; and whether the defendant's negligence caused Pacello and the two DeColas to suffer emotional distress.
Specifically, the plaintiffs allege that the defendant was negligent in that it failed to: develop a plan for medical emergencies; properly train its security guards to respond to such emergencies; arrange prompt transportation to take Mazzaro to a medical facility; offer to obtain a local physician to care for Mazzaro; employ an advanced medical provider on its staff; provide its staff with access to advanced life saving equipment and, maintain its life saving equipment adequately.
The parties agree that the law of the Virgin Islands applies to the action. "In the Virgin Islands, courts follow the Restatement of Law. 1 V.I.C. § 4 (`The rules of the common law, as expressed in the restatements of the law approved by the American Law Institute . . . shall be the rules of decision in the courts of the Virgin Islands in cases to which they apply.'). In the absence of local law and guidance from the Restatement of Law, the rules of common law `as generally understood and applied in the United States' are the rules of decision in the Virgin Islands. Id.; see Pourzal v. Marriott Int'l., Inc., 305 F.Sup.2d 544, 547 (D.V.I. 2004). Precedents from Virgin Island court opinions constitute local law." (Internal quotation marks omitted.) Clayman v. Starwood Hotels Resorts Worldwide, Inc., United States District Court, Docket No. 02-2597-JWL (D.Kan. November 3, 2004).
"The elements of a negligence suit are well established: `duty, breach of duty, causation and damages.' Gass v. V.I. Tel Corp., 149 F.Sup.2d 205, 209 (D.V.I. 2001) (quoting Logan v. Abramson Enters., Inc., 30 V.I. 72, 73 (D.V.I. 1994); Restatement (Second) of Torts § 281 (1965))." (Internal quotation marks omitted.) Clayman v. Starwood Hotels Resorts Worldwide, Inc., supra, United States District Court, Docket No. 02-2597-JWL. "The nature of the legal duty owed by a defendant is generally a question of law. See Restatement [(Second) of Torts] § 328B(b)." Turbe v. Government of Virgin Islands, 938 F.2d 427, 429 (3d Cir. 1991). "The commentators to the Restatement note that `[o]nce the existence of a legal duty is found, it is the further function of the court to determine and formulate the standard of conduct to which the duty requires the defendant to conform.' Restatement (Second) of Torts § 328B comment f (1965)." Imperial Distribution Services, Inc. v. Forrest, 741 P.2d 1251, 1254 (Colo. 1987). "[I]n any case in which different conclusions may be reached on the issue . . . whether the defendant has conformed to the standard of conduct required by the law is a matter for the jury. Restatement (Second) of Torts § 328C(b) (1965)." (Internal quotation marks omitted.) Kleinknecht v. Gettysburg College, 989 F.2d 1360, 1373 (3d Cir. 1993).
The first issue the court must determine, therefore, is what, if any, duty an innkeeper owes to its guests under Virgin Islands law. As a general rule, "[t]here . . . is no duty that obligates one party to aid or to protect another party. See 2 Restatement (Second), Torts § 314, P. 116 (1965)." (Internal quotation marks omitted.) Murdock v. Croughwell, supra, 268 Conn. 559, 566, 848 A.2d 363 (2004). Section 314 of the Restatement provides: "The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action." 2 Restatement (Second), Torts § 314, p. 116 (1965). "The general rule stated in this Section [however] should be read together with other sections which follow. Special relations may exist between the actor and the other, as stated in § 314A [between an innkeeper and guest], which impose upon the actor the duty to take affirmative precautions for the aid or protection of the other . . . [Additionally] [t]he actor may have committed himself to the performance of undertaking, gratuitously or under contract, and so may have assumed a duty of reasonable care for the protection of the other, or even of a third person, as stated in §§ 323, 324, and 324 A." Id., comment (a).
Section 314A of the Restatement of Torts (Second) contains one important exception to the general rule. Under § 314A "[a]n innkeeper is under a duty to its guests to take reasonable action to protect them against unreasonable risk of physical harm." Clayman v. Starwood Hotels Resorts Worldwide, Inc., supra, United States District Court, Docket No. 02-2597-JWL. Section 314A which is entitled, "Special Relations Giving Rise to Duty to Aid or Protect," states:
"(1) A common carrier is under a duty to its passengers to take reasonable action (a) to protect them against unreasonable risk of physical harm, and (2) 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.
"(2) An innkeeper is under a similar duty to his guests.
"(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.
"(4) 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 is under a similar duty to the other." (Emphasis Added.) 2 Restatement (Second), supra, § 314A.
"The duty [in § 314A] to give aid to one who is ill or injured extends to cases where the illness or injury is due to natural causes, to pure accident, to the acts of third persons, or to the negligence of the plaintiff himself, as where a passenger has injured himself by clumsily bumping his head against a door." Id., comment (d), p. 120. "In the case of an ill or injured person, [a defendant] will seldom be required to do more than give such first aid as he reasonably can, and take reasonable steps to turn the sick man over to a physician, or to those who will look after him and see that medical assistance is obtained. [A defendant] is not required to give any aid to one who is in the hands of apparently competent persons who have taken charge of him, or whose friends are present and apparently in a position to give him all necessary assistance." (Emphasis added.) Id., comment (f).
In this case, the decedent was a guest in the defendant's hotel, squarely within the type of special relationship with the defendant that is described by § 314A. The defendant therefore had a duty to provide Mazzaro with such first aid as it reasonably could, and to take reasonable steps to turn her over to a physician or to others who would look after her and see that medical assistance was obtained.
The second issue before the court is the standard of care required by § 314A. See Imperial Distribution Services, Inc. v. Forrest, supra, 741 P.2d 1254. The standard of care required by the duty imposed pursuant to § 314A requires only that the defendant engage in minimal affirmative action. Because § 314A does not define the phrase "first aid," the illustrations included in the Restatement may be used for guidance to determine the scope of the defendant's duty. See Gomes v. Commercial Union Ins. Co., 258 Conn. 603, 609, 783 A.2d 462 (2001). The illustration most germane to the facts of this case is the following: "A, a patron attending a play in B's theatre, suffers a heart attack during the performance, and is disabled and unable to move. He asks that a doctor be called. B's employees do nothing to obtain medical assistance, or to remove A to a place where it can be obtained. As a result, A's illness is aggravated in a manner which reasonably prompt medical attention would have avoided. B is subject to liability to A for the aggravation of his illness." 2 Restatement (Second), supra, § 314A, illustration (5), p. 121. This illustration indicates the limited scope of the defendant's duty, requiring the defendant merely to call for help and move the patron to a place where assistance could be provided.
A review of the case law in various jurisdictions supports the conclusion that the duty recognized in § 314A is limited to the requirement that the defendant provide only the level of care that it is reasonably able to provide in the circumstances. For example, in Salte v. YMCA, 351 Ill.App.3d 524, 814 N.E.2d 610, rehearing denied, (2004), cert. denied, 213 Ill.2d 575, 829 N.E.2d 794 (2005), the court addressed whether the defendant's duty to aid pursuant to § 314A included a duty to have a defibrillator on its premises and to use it on the plaintiff. Id., 527. The court looked to and summarized the relevant case law before holding "that the defendant did not have a duty to have a defibrillator on its premises and that its staff did not have a duty to defibrillate [the plaintiff]." Id., 529. "In so holding, [the majority] disagree[d] with the dissent's conclusion that the reasonableness of the care exercised by defendant under the circumstances was a question of fact that precluded the dismissal of plaintiff's complaint. The dissent assert[ed] that a reasonable jury could find that defendant did not provide reasonable first aid to [the plaintiff] when it failed to use a defibrillator on him. [The majority held that] [a]lthough a jury might so find, the law nonetheless did not require defendant to provide all emergency medical care that its patrons might foreseeably require; nor did the law require defendant to have a paramedic on its staff to provide such medical care. [Furthermore, the majority stated that] [t]he use of a defibrillator requires specific training and [the majority] believe[d] that its use [was] far beyond the type of `first aid' contemplated by Restatement [(Second) of Torts] section 314A." (Emphasis added.) Id., 529-30.
In reaching its conclusion, the Salte court first discussed Parra v. Tarasco, Inc., 230 Ill.App.3d 819, 595 N.E.2d 1186 (1992). Salte v. YMCA, supra, 351 Ill.App.3d 527-28. The court stated: "In Parra, the plaintiff's decedent, a customer at the defendant's restaurant, brought a negligence action based on the defendant's failure to assist him while he was choking. The reviewing court held that the defendant could not be held liable for failing to aid the decedent because the Illinois Choke-Saving Methods Act eliminates liability in such situations. See Ill. Rev. Stat. 1989, ch. 56 1/2, par. 605 (now 410 ILCS 10/5 (West 2000)). The reviewing court next held that, based on the Restatement [(Second) of Torts], the defendant had a duty to call an ambulance. Parra, 230 Ill.App.3d at 829-30. However, the reviewing court held that the dismissal of the plaintiff's complaint was proper because the plaintiff had failed to allege that the defendant's employees knew that the decedent was choking and/or refused to call, or delayed calling, for medical assistance." Id.
The Salte court also discussed Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 812 A.2d 1218 (2002), and Rutnik v. Colonie Center Court Club, Inc., 249 A.D.2d 873, 672 N.Y.S.2d 451, cert. denied, 92 N.Y.2d 808, 700 N.E.2d 1229 (1998). Salte v. YMCA, supra, 351 Ill.App.3d 528. It stated: "In Atcovitz, the plaintiff was a member of a tennis club and had a heart attack while playing tennis at the club. The plaintiff sued the club, alleging that the club had a duty to acquire and maintain a defibrillator on its premises for emergency use. The Supreme Court of Pennsylvania held that the tennis club owed no such duty and affirmed the trial court's entry of summary judgment in favor of the club. Atcovitz, 571 Pa. at 588, 812 A.2d at 1224. A similar conclusion was reached by a New York reviewing court in Rutnik, where the plaintiff sued a racquetball club after suffering a heart attack while playing racquetball. The reviewing court rejected the plaintiff's contention that the club was negligent in failing to have a defibrillator present on premises for immediate emergency use. Rutnick, 249 A.D.2d at 875, 672 N.Y.S.2d at 453." Id.
Additionally, the Salte court found instructive Lundy v. Adamar of New Jersey, Inc., 34 F.3d 1173 (3d Cir. 1994) and Baker v. Fenneman Brown Props., L.L.C., 793 N.E.2d 1203 (2003). Salte v. YMCA, supra, 351 Ill.App.3d 528-29. The court said:
In Lundy v. Adamar of New Jersey, Inc., 34 F.3d 1173 (3d Cir. 1994), the plaintiff, a patron at the defendant's casino, suffered a cardiac arrest. Shortly thereafter, a nurse employed by the casino arrived, bringing with her an `ambu-bag,' oxygen, and an airway. She did not bring an intubation kit. Although some of the equipment normally found in an intubation kit was on the premises, the nurse did not bring it because she was not qualified to use it. The nurse proceeded to assist the plaintiff, using the ambu-bag and the oxygen. The plaintiff filed a negligence action, and the trial court granted summary judgment in favor of the defendant. On appeal, the plaintiff argued that the defendant breached its duty to provide medical care because it did not have an intubation kit on the premises or the personnel necessary to perform an intubation . . .
The reviewing court affirmed. Relying on comment f to section 314A of the Restatement [(Second) of Torts], the court held: `Clearly, the duty recognized in § 314A does not extend to providing all medical care that the carrier or innkeeper could reasonably foresee might be needed by a patron. Certainly, maintaining on a full-time basis the capability of performing an intubation goes far beyond any `first aid' contemplated by § 314A.' Lundy, 34 F.3d at 1179. The court further rejected the plaintiff's claims that, by having medical personnel on staff, the casino had voluntarily assumed a duty that it would not otherwise have had. Lundy, 34 F.3d at 1180. The court relied upon the New Jersey's Good Samaritan Act, which immunized from civil damages the negligent acts or omissions of any person who in good faith rendered emergency aid to a victim at the scene of an emergency. Lundy, 34 F.3d at 1180 . . .
In Baker v. Fenneman Brown Properties, LLC, 793 N.E.2d 1203 (Ind.App. 2003), the plaintiff fainted in the defendant's restaurant, sustaining injuries to his face and neck. He brought a negligence action, arguing that the defendant's employees failed to assist him. On appeal, the defendant argued that placing on businesses a duty to aid patrons was unreasonable because a business would be required to hire employees who were trained to diagnose and provide medical services. Baker, 793 N.E.2d at 1209. The reviewing court disagreed. Relying on comment f to section 314A of the Restatement [(Second) of Torts], the court held that the duty is only to exercise reasonable care under the circumstances. Baker, 793 N.E.2d at 1209. As an example, the court reasoned that a high school student would not be expected to provide the type of first aid an emergency room doctor would provide, as such an expectation would not be reasonable. Baker, 793 N.E.2d at 1209-10. (Emphasis added; internal quotation marks omitted.) Salte v. YMCA, supra, 351 Ill.App.3d 528-29.
Although most of these cases do not address the duty of innkeepers, they did involve defendants whose duty of care to the plaintiffs also arose under § 314A.
In addition to the case law, the dictionary also illustrates the narrow scope of the defendant's duty to provide first aid. See R.T. Vanderbilt Co. v. Continental Casualty Co., 273 Conn. 448, 463, 870 A.2d 1048 (2005) (reference to dictionary appropriate). The term "first aid" has been defined as "[i]mmediate assistance given in the case of injury or sudden illness by a bystander or other lay person, before the arrival of the physician." (Emphasis added.) T. Stedman, Medical Dictionary (22nd Ed. 1972). First aid has also been defined as "[e]mergency treatment administered to injured or sick persons before professional medical care is available." The American Heritage Dictionary (Second College Ed. 1985) Moreover, the "National First Aid Science Advisory Board define[s] first aid as assessments and interventions that can be performed by a bystander (or by the victim) with minimal or no medical equipment." American Red Cross American Heart Association, Guidelines for First Aid (December 13, 2005), pp. IV-196. In common parlance, therefore, first aid requires no more assistance than that which can be provided by an untrained person.
Available at: http://www.redcross.org/static/file_cont4913_lang0_1727pdf.
In accordance with this common understanding of the term, the American Red Cross and the American Heart Association's Guidelines for First Aid (Guidelines) provide a clear picture of what "first aid" may include. Common first aid interventions include: calling for help; positioning a victim; administering medications to an acute asthma or anaphylactic reaction sufferer; ensuring that a seizure victim has an open airway; controlling a victim's bleeding by applying pressure; irrigating and applying antibiotic ointment to wounds and abrasions; cooling thermal burns; covering blisters; assessing victims of electrocution; manually stabilizing the head of a blunt trauma victim so that the head, neck and spine do not move and are kept in line; applying cold packs to soft-tissue injuries such as sprains and muscle contusions; rinsing an avulsed tooth with water and placing it in milk for transport to the dentist; snugly bandaging an elapid snakebite, immobilizing the bitten extremity and immediately getting medical help; warming a victim of hypothermia; removing a drowning victim from the water; calling the poison control center, safely removing chemicals, and irrigating a chemical burn site with water. American Red Cross American Heart Association, Guidelines for First Aid, supra, pp. IV-196-IV-200. Most notably, and relevant to the facts in the present case, the Guidelines state: "There is insufficient evidence to recommend for or against the use of oxygen by a first aid provider . . . and concern exists that oxygen administration may delay other interventions." Id., IV-197. Furthermore, the guidelines define a person using oxygen intervention, as "someone with formal training in first aid, emergency care, or medicine who provides first aid." (Emphasis added.) Id.
Thus, although the defendant owed the decedent a duty to provide her with first aid pursuant to § 314A, it is also apparent that "first aid" only encompasses limited procedures, and the defendant's duty in this case required it to do little if any more than seek prompt medical attention on her behalf. See 2 Restatement (Second), supra, § 314A. This narrow view of the scope of the duty required by § 314A is bolstered by the contrast between this section and the more recent view taken by American Law Institute in the Proposed Final Draft No. 1, Restatement (Third), Torts, Liability for Physical Harm § 40.
Section 40, entitled "Duty Based On Special Relationship With Another," still recognizes a special relationship between an innkeeper and its guest. Proposed Restatement (Third), supra. It states, however, "[a]n actor in a special relationship with another owes the other a duty of reasonable care with regard to risks that arise within the scope of the relationship." (Emphasis added.) Id. Furthermore, a comment to this proposed section states: "The affirmative duty recognized by the Restatement Second of Torts § 314A was limited to providing first aid and temporary care until appropriate medical care could be obtained. This Section adopts a more general duty of reasonable care." Id., § 40, comment (d). Thus, while the more general view taken by the latest proposed version explicitly moves away from the limited nature of the duty view, it helps to substantiate the conclusion that, at present, an innkeeper's duty pursuant to § 314A is narrow in scope and requires only minimal affirmative acts. Thus, according to the Restatement (Second) illustration, the case law in other jurisdictions, the definitions of first aid, the proposed Restatement of Torts (Third), and the undisputed facts in this case, the court concludes that no reasonable jury could conclude that the defendant failed to provide Mazzaro with the first aid assistance required by § 314A when it called 911 and its security guards went to her room.
This, however, is not the end of the inquiry. The court must now move on to consider whether, after extinguishing its § 314A duty but then affirmatively acting by attempting to provide additional aid, the defendant incurred an additional duty to act with reasonable care pursuant to § 323 and § 324 of the Restatement of Torts (Second).
As a preliminary matter, the court notes that the defendant contends that it does not owe a duty to Mazzaro under §§ 323 or 324 because those sections apply only to those who do not otherwise have a duty to the plaintiff. Because the defendant owed Mazzaro a duty under § 314A, it reasons, it cannot be liable to her under §§ 323 and 324. Although there is some authority for the defendant's argument; see Wells v. United States, 655 F.Sup. 715, 719 (D.C. 1987), aff'd, 271 U.S.App.D.C. 244, 851 F.2d 1471 (1988) (enunciating Good Samaritan doctrine applies in the absence of a duty otherwise to act); see also Barnum v. Rural Fire Protection Co., 24 Ariz.App. 233, 237, 537 P.2d 618, (1975) (Section 323 "is, plainly, a rule which comes into play by reason of an affirmative undertaking by one who, under the circumstances, has no duty to act."); it does not shield the defendant here after discharging its duty of care under § 314A, it had no additional duty to act; yet it undertook to provide Mazzaro with more aid by supplying her with oxygen and providing CPR. By affirmatively taking this additional action when it no longer had any duty to do so, the defendant incurred a duty to do whatever it did with reasonable care under § 323 and § 324.
A leading treatise on the law of torts acknowledges a trend in the courts to extend liability where a person by his or her conduct, assumes a duty to protect another. W. Prosser W. Keeton, Torts (5th Ed. 1984) § 56. The authors explain that "[i]f there is no duty to go to the assistance of a person in difficulty or peril, there is at least a duty to avoid any affirmative acts which make his situation worse . . . There may be no duty to take care of a man who is ill or intoxicated, and unable to look after himself, but . . . if the defendant does attempt to aid him, and takes charge and control of the situation, he is regarded as entering voluntarily into a relation which is attended with responsibility . . . Such a defendant will then be liable for a failure to use reasonable care for the protection of the plaintiff's interests. And on the same basis one who, without legal obligation to do so, attempts to remove ice from the sidewalk, may find himself liable when he makes the situation worse. The result of all this is that the good Samaritan who tries to help may find himself mulcted in damages, while the priest and the Levite who pass by on the other side go on their cheerful way rejoicing." Id., pp. 378-79.
The doctrine applicable in situations when a person assists another although he or she does not have a duty to act is sometimes referred to as the "Good Samaritan Doctrine," and it is set forth in two sections of the Restatement of Torts (Second), § 323 and § 324. Ocotillo W. Joint Venture v. Superior Court, 173 Ariz. 486, 488-89, 844 P.2d 653 (Ariz.Ct.App. 1992). Section 323 of the Restatement of Torts (Second) provides: "One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other's reliance upon the undertaking." Id., § 323, p. 135. "One who . . . renders gratuitous services [however] . . . is not subject to liability . . . for his failure to have the competence or to exercise the skill normally required of persons doing such acts, if the other who accepts the services is aware, through information given by the actor or otherwise, of his incompetence. [Nevertheless], a contract to render services, or a gratuitous offer to render them, or even merely giving them at the other's request, may carry with it a profession or representation of some skill and competence; and if the actor realizes or should realize that his competence and skill are subnormal, he must exercise reasonable care to inform the other." Id., § 323, comment (b), p. 136. (Emphasis added.)
Section 324 of the Restatement (Second) provides in relevant part that "[o]ne who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by (a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor's charge . . ." Id., § 324, p. 139. "The emphasis in this section is on the fact that `the plaintiff is in a helpless position . . .' Id., § 324, comment (a), p. 140. Comment (b) to § 324 states that `the rule stated in this Section is applicable whenever one takes charge of another who is incapable of taking adequate care of himself. It applies equally where the other is rendered helpless by his own conduct, by the tortious or innocent conduct of the actor, or by other causes, as where the actor takes charge of one who is ill, drunk, or made helpless by the act of a third person or a force of nature.' Id., § 324, comment (b), p. 140." Coville v. Liberty Mutual Ins. Co., supra, 57 Conn.App. 280-81. "The only difference between [§ 323 and § 324] . . . is the particular feature of § 324 that the plaintiff is in a helpless position. Section 323 has no such requirement." Ocotillo W. Joint Venture v. Superior Court, supra, 173 Ariz. 489.
By applying either § 323 or § 324, courts have recognized that a defendant has a duty to exercise reasonable care in different factual settings. For example, in Lloyd v. State Farm Mutual Automobile Ins. Co., 176 Ariz. 247, 860 P.2d 1300 (Ariz.Ct.App. 1992), the court determined that although an insurance company had no duty to defend the plaintiff in court, it incurred a duty pursuant to § 323 once it undertook to do so. Additionally, in Burgess v. Perdue, 239 Kan. 473, 721 P.2d 239 (1986), the court decided that a doctor incurred a duty under § 323 when he voluntarily assumed the responsibility to relay a mother's request for a partial autopsy of her son to the coroner, and breached this duty when he but failed to do so and a full autopsy was performed. In Circle Land Cattle Corp. v. Amoco Oil Co., 232 Kan. 482, 657 P.2d 532 (1983), the court concluded that although a product seller owed no duty to plaintiff buyer to conduct a surveillance program over a product, the seller incurred a duty of reasonable care once it engaged in the surveillance program.
With regard to § 324, in Filter v. McCabe, 1999 PA Super 143, 733 A.2d 1274 (1999), cert. denied, 563 Pa. 645, 758 A.2d 1200 (2000), the court concluded that a homeowner owed a duty to assist the plaintiff in a reasonable manner because the homeowner took steps to assist plaintiff once he was injured. Furthermore, in Jiron v. Jake's Body Shop, Inc., United States District Court, Docket No. CV-00-2112 (E.D.La. October 9, 2000), the court decided that a tow truck driver assumed a duty pursuant to § 324 when he assented to take the decedent to a place to call for a ride, took him away from a place of relative safety and brought him to a place where he was robbed and murdered. Thus, "[t]he case law is clear that, even when no original duty is owed to the plaintiff to undertake affirmative action, once it is voluntarily undertaken, it must be performed with due care . . ." (Citations omitted.) Parvi v. Kingston, 41 N.Y.2d 553, 559, 362 N.E.2d 960 (1977).
Here, the defendant undertook the task of applying oxygen and rendering CPR to the decedent. As the defendant recognizes in its brief, it was under no duty to apply oxygen or perform CPR because it had already discharged its duty to render first aid pursuant to § 314A. Once it had done so, the defendant had no additional duty to act at all. Nevertheless, the undisputed facts demonstrate that the defendant did in fact act by engaging in rescue measures, such as attempting to administer applying oxygen and rendering CPR. These affirmative acts, which go beyond the requirements imposed on the defendant under § 314A, may be characterized as either gratuitous undertakings or taking charge of another who is helpless. Under either characterization, the defendant still owed a duty to exercise reasonable care in performing these acts. See Coville v. Liberty Mutual Ins. Co., supra, 57 Conn.App. 281-82 ("If one undertakes to perform an act and performs it negligently . . . it makes no difference whether . . . the act was performed gratuitously . . . One who gratuitously undertakes a service that he has no duty to perform must act with reasonable care in completing the task assumed."). Once it undertook the additional obligation of providing oxygen and performing CPR, the defendant in this case had a duty to perform these acts with reasonable care.
The defendant asserts in its memorandum of law in support of summary judgment that "[b]y applying oxygen and administering CPR after failing to detect a pulse or observe signs of breathing, the hotel personnel acted beyond the scope of the [§ 314A] duty owed to the plaintiff." The court considers this assertion of fact to be a judicial admission. See Mercado v. Giesing, Superior Court, judicial district of New London at Norwich, Docket No. CV 04 5100009 (January 30, 2006, Devine, J.) (plaintiff's admission in memorandum of law in support of motion for summary judgment constituted judicial admission). Moreover, the affidavit of Donna Henley, a purchasing manager employed by the defendant, states that the acting supervisor of security, Lawrence Williams, administered oxygen to the decedent and the security manager, Milton Maduro, administered CPR to the decedent. Also, in Maduro's affidavit, he admits to telling one of the plaintiffs, Genevieve DeCola, that he knew how to perform CPR, and that he in fact administered CPR to the decedent.
The issues of whether the defendant's failure to exercise reasonable care increased the risk of harm to the decedent, or whether the decedent's harm was suffered because of her reliance upon the defendant's rendering first aid implicate a proximate cause determination and do not affect a determination by the court as to whether the defendant owed a duty in the first place. Cf. Meck v. Paramedic Services, 296 Ill.App.3d 720, 695 N.E.2d 1321, cert. denied, 179 Ill.2d 587, 705 N.E.2d 439 (1998) (lost chance doctrine is based on the Restatement (Second) of Torts, § 323, and whether delay increased risk of harm to decedent thereby supporting a lost chance argument is a question of proximate cause). Additionally, the defendant has not raised nor briefed these issues.
Finding such a duty prevents an anomalous result in which the defendant has no duty to rescue the decedent on one hand, and on the other hand has no duty to act with reasonable care once it undertook to rescue her. See W. Prosser W. Keaton, Torts (5th Ed. 1984) § 56, pp. 378-79 (if there is no duty to rescue, there should at least be a duty to avoid any affirmative acts which make the situation worse).
For the foregoing reasons, the court concludes that the defendant owed a duty to Mazzaro pursuant to § 314A, that it discharged that duty, and that it then subsequently incurred the additional duty imposed by § 323 and § 324. The materials submitted in connection with the present motion do not resolve disputed facts concerning whether the defendant discharged that latter duty with reasonable care, whether any failure to use reasonable care caused damages to the decedent, and whether any such failure inflicted emotional distress on Pacello and the DeColas. The motion for summary judgment is therefore denied.