Gregory C. Miglino, Jr.,, Respondent,v.Bally Total Fitness of Greater New York, Inc., Appellant, et al., Defendant.BriefN.Y.January 3, 2013To be Argued by: BRIAN P. HEERMANCE (Time Requested: 30 Minutes) Suffolk County Clerk’s Index No. 07729/08 Appellate Division, Second Department Docket No. 2010-06556 Court of Appeals of the State of New York GREGORY C. MIGLINO, JR., Executor of the Estate of Gregory C. Miglino, Sr., deceased, Plaintiff-Respondent, – against – BALLY TOTAL FITNESS OF GREATER NEW YORK INC., Defendant-Appellant, – and – BALLY TOTAL FITNESS CORPORATION, Defendant. REPLY BRIEF FOR DEFENDANT-APPELLANT MORRISON MAHONEY LLP 17 State Street, Suite 1110 New York, New York 10004 Tel.: (212) 825-1212 Fax: (212) 825-1313 Attorneys for Defendant-Appellant and Defendant Dated: July 19, 2012 TABLE OF CONTENTS Page PRELIMINARY STATEMENT.................................................................. 1 I. Defendant's Argument that Plaintiff Assumed the Risk of Cardiac Arrest When He Engaged in Strenuous Physical Activity at the Defendant's Health Club Was Preserved and as such Exempts Defendant from Liability .... ..... .. .. .. .. .. .. . .. ....... ... .. .... .. .. ... .. ... .. .. .. .. .. .. .. . 1 II. Defendant is Immune from Liability Under New York's Good Samaritan Statute............................................................................... 4 III. Defendant had No Legal Duty to Use an AED and, Therefore, Plaintiff's Complaint Fails to State a Viable Cause of Action.......... 9 CONCLUSION............................................................................................ 13 TABLE OF AUTHORITIES Page(s) Cases: Morgan v. State, 90 NY2d 662, 662 NYS2d 41 (1997) .............................. 2 Rutnik v. Colonie Center Court Club, Inc., 249 AD2d 873, 672 NY2d 451 (3rd Dept 1998)................................................................. 2, 3, 11 Chappill v. Bally Total Fitness Com., 2011 NY Slip Op 30146(u) (2011)........................................................................................................ 2, 3, 11 Putrino v. Buffalo Athletic Club, 193 AD2d 1127,598 NYS2d 648 (4th Dept 1993).......................................................................................... 3, 7, 11 Salvia v. Long Island Railroad, 207 AD2d 534 (2nd Dept 1994)................. 5, 6 Rodriguez v. New York City Health & Hospitals Com., 132 Misc2d 705, 505 NYS2d 345 (Sup Ct, Kings Co 1986) ................... 6 McDaniel v. Keck, 53 AD3d 869, 861 NYS2d 516 (3rd Dept 2008)........... 7 Vucetovic v. Epsom Downs, Inc., 10 NY 3d 517, 860 NYS2d 429 (2008)........................................................................................................ 9 Tedla v. Ellman, 280 NY 124, 19 NE2d 987 (1939) ................................... 9 Digiulio v. Gran, Incl, et al., 74 AD3d 450; 903 NYS2d 359 (1st Dept 2010), aff'd 17 NY3d 765, 952 NE2d 1064 (2011) .................. 12, 13 Statutes: G.B.L. §627-a .............................................................................. 2, 3, 8, 9, 10, 11, 13 Public Health Law §3000-a.......................................................................... 4, 9 Public Health Law §3001............................................................................. 6 G.B.L.§627-a(1).......................................................................................... 12,13 11 Other Authority: Merriam-Webster Dictionary....................................................................... 6 McKinney's Cons Laws of NY, Book 1, Statutes §94 ................................ 10 NY Assembly Memorandum in Support, Bill Jacket, L.2004, ch. 186....................................................................................................... 10 111 PRELIMINARY STATEMENT This Reply Brief is submitted on behalf of the Defendant, Bally Total Fitness of Greater New York, Inc. Defendant appeals from the Order of the Appellate Division, Second Department, dated December 27, 2011. (R. 162). As detailed in this Reply Brief, the arguments raised by Plaintiffs in their brief do not rebut the arguments set forth in Defendant's Brief. I. Defendant's Argument that Plaintiff Assumed the Risk of Cardiac Arrest When He Engaged in Strenuous Physical Activity at the Defendant's Health Club Was Preserved and as such Exempts Defendant from Liability Plaintiff argues in opposition to defendant's appeal that defendant never raised the defense that plaintiff assumed the risk of cardiac arrest while performing a strenuous exercise in either the lower court or the appellate division and as such this argument is unpreserved. To the contrary, defendant has asserted that plaintiff assumed the risk of cardiac arrest from the infancy of this action. Defendant originally interposed affirmative defense number one, asserting that plaintiffs claims were the result of risks assumed by the plaintiff (R. 32). Defendant has never waived this defense and has simply chosen to more forcefully argue it on appeal. Plaintiff goes on to argue that even if the assumption of the risk argument is considered, it is meritless based on the conclusory and unsupported declaration that 1 993184vl exempting a health club from liability because the individual assumed the risk of cardiac arrest would render G.B.L. § 627-a meaningless. Plaintiff argues that G.B.L. § 627-a was enacted in order to address the circumstances in this matter. It is well-established law that a participant of a sporting or recreational activity assumes the risks of those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation. Morgan v. State, 90 NY2d 662, 662 NYS2d 41 (1997). Courts have applied the Morgan rationale to cases involving cardiac arrests at health clubs. See, Rutnik v. Colonie Center Court Club, Inc., 249 AD2d 873, 672 NY2d 451 (3rd Dept 1998) (Plaintiff who suffered cardiac arrest while playing racquetball assumed the inherent risk by engaging in the sport.); Chappill v. Bally Total Fitness Corp., 2011 NY Slip Op 3 0 146( u )(20 11 )(Plaintiff assumed the health-related risks of the strenuous exercises he performed.) The Chappill court held that Defendant health club could not be liable for failure to use an AED since health clubs have no common law duty to use an AED.) Plaintiffs argument relies on the erroneous assumption that G.B.L. § 627-a imposes a duty on the defendant health club to use an AED. G.B.L. § 627-a imposes no such duty and it has long been held in New York at common law that health clubs owe only a minimal duty of care to patrons who suffer cardiac arrest. This minimal duty does not require the use of an AED when an individual is in 2 993184vl cardiac arrest. See, Rutnik v. Colonie Center Court Club, Inc., 249 AD2d 873, 672 NY2d 451 (3rd Dept 1998) (Using a defibrillator was not deemed necessary to meet the standard of care for treating heart attack victims in a health club); Putrino v. Buffalo Athletic Club, 193 AD2d 1127, 598 NYS2d 648 (4th Dept 1993) (Defendant's response to the cardiac arrest suffered by plaintiff while participating in an aerobics class by calling 911 immediately and deferring to the superior medical training and experience of a Nurse who was present was proper and reasonable); Chappill v. Bally Total Fitness Corp., 2011 NY Slip Op 30146(u)(2011)(Defendant health club could not be liable for failure to use an AED since health clubs have no common law duty to use an AED.) It is clear that the Courts have held that where an athletic club patron has assumed the risk of rigorous activity, the club will have only a minimal duty to a victim of cardiac arrest. GBL §627-a statutorily creates a duty for Defendant to keep an AED on premises, as well as a person certified to use the AED. However, neither the statute nor at common law, as it exists in New York, imposes a duty upon health clubs to use the AED. Accordingly, applying the doctrine that plaintiff assumed the risk of cardiac arrest by engaging in strenuous physical activity is not inconsistent with or render meaningless GBL §627-a. As such, the Defendant is exempt from liability. 3 993184vl II. Defendant is Immune from Liability Under New York's Good Samaritan Statute Plaintiff argues in opposition that Public Health Law §3000-a, the Good Samaritan Statute, does not apply to Bally in this instance for three reasons. First, plaintiff contends that the acts of Bally employees do not constitute the rendering of emergency treatment. Second, plaintiff contends that since the Bally club possessed an AED device, it is a "place having proper and necessary medical equipment," and therefore the statute does not apply. Finally, plaintiff contends that Bally is not entitled to the protection under the Good Samaritan statute because it is not a Public Access Defibrillation Provider ("P ADP"), and is therefore not entitled to the statute's protection. Plaintiffs three arguments are baseless and without legal support. As an initial consideration, the purpose behind the Good Samaritan statute is to encourage laymen to assist in responding to emergency situations without the fear of civil liability for acts or omissions associated with the emergency response. Plaintiff asserts that defendant's acts during the incident do not constitute the "rendering of medical treatment" as provided in the Good Samaritan statute. However, the evidence on record clearly shows and plaintiffs Complaint does not refute that Bally personnel responded to the collapse of plaintiffs decedent by engaging in numerous efforts to care for the defendant, including: 4 993184vl A) Immediately contacting 911 to arrange for an ambulance and paramedics; B) Following Bally protocols by requesting that anyone present with medical training report to Bally personnel to assist; C) Responding promptly to the scene; D) Assessing the decedent, noting breathing, normal color and a faint pulse; E) Retrieving the club's AED for use; and F) Confirming that a doctor and medical student had responded to the request for assistance and had continued to care for the decedent by administering CPR. Instead, plaintiff conveniently acknowledges in opposition only that defendant called 911, checked decedent's pulse, and retrieved an AED and argues that these actions were insufficient to constitute medical treatment, but that the use of an AED, without more, would have constituted "medical treatment." Plaintiff cites Salvia v. Long Island Railroad, 207 AD2d 534 (2nd Dept 1994) to support this position. However, in Salvia. the Second Department held that only placing the plaintiff in a truck, taking him home, and later calling an ambulance was neither first aid nor emergency treatment. 5 993184vl This matter is wholly distinguishable from Salvia. Here, the defendant did not wait, but immediately called 911, checked plaintiffs pulse and color, brought the AED and saw to it that the decedent was monitored by a medical doctor and a medical student until paramedics arrived. The Meriam-Webster Dictionary defines "first aid" as "emergency care or treatment given to an ill person before regular medical treatment can be obtained. The Dictionary defines the verb "treat" as "to care for or deal with, medically or surgically." Section 3001 of the Public Health Law defines "emergency medical service" as "initial emergency medical assistance including, but not limited to, the treatment of trauma, burns, respiratory, circulatory and obstetrical emergencies." Defendant's acts certainly fall within both the dictionary definition of "first aid" as well as the statutory definition of "emergency medical services" as they constitute initial medical assistance to the plaintiffs decedent. Additionally, in Rodriguez v. New York City Health & Hospitals Corp., 132 Misc2d 705, 505 NYS2d 345 (Sup Ct, Kings Co 1986), the Supreme Court, Kings County determined that an emergency response consisting solely of checking a pulse and heart rate and calling police was sufficient to trigger protection under the Good Samaritan statute. The Rodriguez court specifically held that the defendant "treated the decedent in an apparent emergency situation." Moreover, the Appellate Division, Fourth Department, in 1993, held that a health 6 993184vl club's deferral to the "superior medical training" of a nurse and contacting 911 immediately was a "proper and reasonable" response to the sudden collapse of a member. Putrino v. Buffalo Athletic Club, 193 AD2d 1127, 598 NYS2d 648 (4th Dept 1993). Given that the checking of a decedent's pulse and heart rate and calling to arrange for an ambulance has been held to constitute "treatment" for the purposes of the Good Samaritan statute, and have been held by the Fourth Department to be "proper and reasonable," the acts of the Bally employees plainly fall within the definition of "treatment" and, as such, Bally is entitled to the protection of the Good Samaritan statute. Plaintiff also argues that the Good Samaritan statute is inapplicable to defendant because defendant was equipped with an AED. Accordingly, the plaintiff argues that the club possessed "proper and necessary medical equipment" akin to a hospital or doctor's office, and is thus not entitled to protection under the statute. Plaintiff cites only to McDaniel v. Keck, 53 AD3d 869, 861 NYS2d 516 (3rd Dept 2008), which merely stands for the proposition that treatment rendered in a farmhouse is protected by the Good Samaritan statute. The McDaniel case does not support the proposition that a health club such as Bally possesses sufficient medical equipment so as to be excluded from protection under the Good Samaritan statute. However, plaintiff appears to be 7 993184vl suggesting that possessing an AED likens a health club to a hospital or doctor's office. It is plainly obvious that this is not the case. Instead, it is clear that the defendant is not a place that possesses proper and necessary medical equipment, such as a doctor's office or hospital. Instead, defendant maintains a first aid kit and AED device; obviously insufficient to bring defendant within the same degree of medical equipment as a hospital or doctor's office. Accordingly, defendant falls within the scope of protection of the Good Samaritan statute. Finally, plaintiff erroneously argues that defendant does not fall within the protection of the Good Samaritan statute because it is not a Public Access Defibrillator Provider ("P ADP"). On the contrary, defendant does qualify for classification as a P ADP. General Business Law §627-a also specifically provides that any health club subject to the terms and conditions of the statute shall be deemed a PADP. As such, plaintiffs argument based upon defendant's inability to establish that it is a PADP must fail as a matter of law. Contrary to the Second Department's finding, defendant is clearly entitled to the protections of the Good Samaritan statute, plaintiffs complaint fails to state a claim upon which relief may be granted. Plaintiffs complaint does not raise an allegation of gross negligence as is required to impose liability on an entity 8 993184vl protected under section 3000-a of the Public Health Law. Plaintiffs complaint must be dismissed. III. Defendant had No Legal Duty to Use an AED and, Therefore, Plaintiff's Complaint Fails to State a Viable Cause of Action Plaintiff argues in opposition that GBL §627-a creates an affirmative duty on the part of defendant to use the club's AED on the decedent. This argument is unsupported by any New York authority, and accordingly lacks merit. GBL §627-a does not obligate defendant to do anything other than maintain an AED on premises as well as a person certified in its use. Here, it is undisputed that at the time of the Plaintiffs collapse, Defendant had an AED on premises as well as an employee present who was trained in its use. Therefore, Defendant complied with the statute and satisfied its duty to Plaintiff. It is well-settled in New York, that a statute which is in derogation of common law, as GBL §627-a is, should be strictly construed. Vucetovic v. Epsom Downs, Inc., 10 NY3d 517, 521, 860 NYS2d 429 (2008). Where a statute creates a specific duty of care, that did not exist previously in common law, the Court must follow that statute to the word and not supplant the duty required by the statute with a different common law duty or lack thereof. Tedla v. Ellman, 280 NY 124, 19 NE2d 987 (1939). Of course, as plaintiff points out, a court shouldn't interpret a statute in a manner that makes it meaningless. 9 993184vl In the instant case, the Second Department incorrectly found Defendant liable by implication. The Second Department mistakenly accepted Plaintiff's argument that Defendant had a duty to use the AED simply because the statute required them to maintain one on the premises. Plaintiff did not offer any legal authority whatsoever for this proposition, because no such legal authority exists. Instead, plaintiff argues that to interpret the statute in a manner other than having it impose a duty on plaintiff to use the AED would produce an "absurd result." Plaintiff's interpretation, however, results in the "absurd result" of ignoring and rendering meaningless the words "volunteer" and "voluntarily" contained in the statute, thus rendering it meaningless. The New York Legislature has provided that "words are not to be rejected as superfluous when it is practicable to give each a distinct and separate meaning." McKinney's Cons Laws ofNY, Book 1, Statutes §94. Instead, each word in a statute is presumed to have meaning. Defendant's interpretation gives purpose and meaning to every word whereas plaintiff's renders moot the terms voluntary, voluntarily, etc. Plaintiff cites to the Legislature's stated purpose in enacting GBL §627-a, which was to "ensure help to the health and safety of patrons of health clubs." NY Assembly Memorandum in Support, Bill Jacket, L.2004, ch. 186, at 4. Plaintiff notes that the legislature stated that to accomplish this, the statute "would require health clubs to have at least one AED on the premises and at least one employee 10 993184vl trained in the skill necessary for operation of an AED." Id. Like the statute itself, the stated purpose of the legislature does not mention or imply the existence of an affirmative duty to use the AED. Prior to the enactment of GBL §627-a, under the common law, a health club was not required to do much more than call 911 when one of its patrons suffered from cardiac arrest. It is clear that the legislature's purpose in enacting GBL §627-a was to require the availability of an AED to encourage its voluntary use, consistent with New York's Good Samaritan statute, which also uses the word "voluntarily." Plaintiff contradicts and undermines his own position when he acknowledges that the legislature does not have the expertise to determine when the AED is to be used. Clearly then the legislature could not create an affirmative duty to use the AED in any circumstances. Instead, as held at common law, health clubs owe only a minimal duty of care to patrons who suffer cardiac arrest; a duty that does not require the use of an AED when an individual is in cardiac arrest. See, Rutnik 249 A.D.2d 873 (Using a defibrillator was not deemed necessary to meet the standard of care for treating heart attack victims in a health club); Putrino 193 A.D.2d 1127 (Defendant's response to the cardiac arrest suffered by plaintiff while participating in an aerobics class by calling 911 immediately and deferring to the superior medical training and experience of a Nurse who was present was proper and reasonable); Chappill, 2011 NY Slip Op 30146(u)(2011)(Defendant 11 993184vl health club could not be liable for failure to use an AED since health clubs have no common law duty to use an AED.) In Digiulio v. Gran, Incl. et al., 74 AD 3d 450; 903 NYS2d 359 (1st Dept 2010), affd 17 NY3d 765, 952 NE2d 1064 (2011), a case on all fours with the present matter, this Honorable Court upheld the First Department's holding that it "did not construe GBL §627-a(l) as imposing liability on a health club which, in compliance with the statute, maintains an accessible defibrillator on the premises, but whose employee exercises poor judgment in attempting to access or use it. Indeed, there is nothing in the statute which suggests that the principles applicable under common law negligence should be extended so as to make a health club liable for an employee's negligence in using, or attempting to use an available defibrillator". See, Digiulio, supra. This Honorable Court went on to find that even assuming the statute created a duty to use the AED, the defendant health club employee's failure to access the AED was not grossly negligent, and there was no breach of a common law duty to render aid to the plaintiff. Similarly here, the Plaintiff collapsed while engaged in physical activity at the Defendant's health club at or near the racquet ball courts. The Defendant's employees responded by immediately contacting 911. The main differences between the instant case and the Digiulio case are that in the instant case: (1) the Defendant's employee actually retrieved the AED for use; and (2) CPR was 12 993184vl administered by a doctor who was a member and at the gym at the time of the plaintiffs collapse, not a Bally employee. Nevertheless, both the defendant health club in the Digiulio case and the Defendant in the instant case satisfied GBL § 627- a(l) by having an available defibrillator on the premises along with an employee who was certified to use it. Like Digiulio, the fact that the AED was not used by the Defendant's employee on the Plaintiff was irrelevant in determining whether GBL § 627 -a was satisfied. CONCLUSION It is respectfully submitted that, for the reasons set forth above, the decision of the Appellate Division, Second Department dated December 27, 2011, and entered December 30, 2011, should be reversed to the extent that it denied Defendant's motion to dismiss Plaintiffs Complaint filed against Defendant Bally Total Fitness ofGreaterNew York, Inc. 1 Defendant's request to dismiss Plaintiffs entire Complaint should be granted 1 The Second Department's modification dismissing all causes of action asserted against Defendant Bally Total Fitness Corporation should remain in effect. 13 993184vl Dated: 993184vl New York, New York July 19, 2012 Respectfully submitted, 14
