VERDUGO v. TARGET CORPORATIONUnited States Court of Appeals Ninth Circuit’s Request to Answer Question of State LawCal.December 12, 20125 [207219 FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MICHAEL VERDUGO,brother of No. 10-57008 Decedent; ROSEMARY VERDUGO, mother, successor and heir of Mary D.C. No. Ann Verdugo, Decedent, 2:10-cv-06930- Plaintiffs-Appellants, ODW-AJW Central District Vv. of California, Los Angeles TARGET CORPORATION,a Minnesota corporation, Defendant-Appellee. ORDER Filed December 1 1, 2012 Before: Harry Pregerson, Susan P. Graber, and MarshaS. Berzon, Circuit Judges. Order; SUPREME COURT Concurrence by Judge Graber; E | L E Dp Dissent by Judge Pregerson DEC 12 2012 Frank A. McGuire Clerk Deputy 2 VERDUGO V. TARGET CORPORATION SUMMARY Certification to CA Supreme Court The panel certified a question of California law to the California Supreme Court, withdrew the case from further consideration, and stayed further proceedings pending final action by the California Supreme Court. The panelcertified the following question: 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 Automatic External Defibrillator “AED”) for cases of sudden cardiac arrest? Judge Graber concurred fully in the order, and wrote separately to note that in the absence of the California Supreme Court’s guidance, she would disagree with Judge Pregerson’s dissenting view. Judge Pregerson dissented from the order certifying a question to the California Supreme Court. Judge Pregerson would reverse the district court’s dismissal of the complaint and remandfor further proceedings because he would hold in the circumstancesofthis case that the California common law duty for a business to provide emergency first aid to its * This summary constitutes no part of the opinion of the cour t. It has been prepared by court staff for the convenienceof the read er. VERDUGO V. TARGET CORPORATION 3 invitees requires the availability of an AED for cases of sudden cardiac arrest. COUNSEL Robert A. Roth, Tarkington, O’Neill, Barrack & Chong, Berkeley, California; David G. Eisenstein, Law Offices of David G.Eisenstein, P.C., Carlsbad, California for Plaintiffs- Appellants. Benjamin R. Trachtman and Ryan M. Craig, Trachtman & Trachtman, Mission Viejo, California for Defendant- Appellee. ORDER Pursuant to Rule 8.548 of the California Rules of Court, we request the California Supreme Court to decide the question of California law set forth in Part II of thisorder. This case is withdrawn from submissionuntil further order of this court, andall further proceedings in this court are stayed pendingfinal action by the California Supreme Court. Thereis no controlling precedent resolving the question weset forth below. The answer will determine the outcome of the present appeal. Our phrasing of the question below is not meant to restrict the California Supreme Court’s consideration of the issue involved. Weagree to follow the answer provided by the California Supreme Court. 4 VERDUGO V. TARGET CORPORATION I CAPTION AND COUNSEL Michael and Rosemary Verdugo are considered the petitioners in this request because they appeal from the district court’s adverse ruling on the specified issue. The caption ofthis caseis: MICHAELVERDUGO,brother ofDecedent; ROSEMARYVERDUGO,mother, successor and heir of Mary Ann Verdugo, Decedent, Plaintiffs-Appellants, V. TARGET CORPORATION, a Minnesota corporation, Defendant-Appellee. The names and addresses of counselare: For the Verdugos: Robert A. Roth, Tarkington, O’Neill, Barrack & Chong, Berkeley, CA; David Griffith Eisenstein , Law Offices of David G. Eisenstein, P.C., Carlsbad, CA. For Target Corporation: Benjamin R. Trachtman, Ryan M.Craig, Trachtman & Trachtman, Mission Viejo, CA. VERDUGO V. TARGET CORPORATION 5 I a QUESTION OF LAW The question of law we wish to be answeredis: In what circumstances,ifever, does the common law duty of a commercial property owner to provide emergencyfirst aid to invitees require the availability of an Automatic External Defibrillator (“AED”) for cases of sudden cardiac arrest? ill STATEMENT OF FACTS Mary Ann Verdugo, age 49, was shopping at a Target store in Pico Rivera, California, with her mother and brother on August 31, 2008, when she suffered sudden cardiac arrest and collapsed. In response to a 911 call, paramedics were dispatched from a Los Angeles County Fire Department station nearby. It took the paramedics several minutes to reachthe store, and several more minutes to reach Verdugo inside. By the time the paramedics arrived, Verdugo was dead and could not be resuscitated. Target did not have an AEDinits store. Nearly 300,000 Americans suffer from sudden cardiac arrest every year, and only eight percent survive. Sudden cardiac arrest is caused by a problem with the heart’s electrical impulses, causing it to stop pumping blood. Unlike a myocardial infarction (a heart attack), sudden cardiacarrest often strikes with no prior symptomsand canstrike a heart 6 VERDUGO V. TARGET CORPORATION that is otherwise healthy. A shock from an AED canrestart a heart by correcting the misfiring ofits electrical impulses. To be effective, the AED must be used immediately. The chance of surviving sudden cardiac arrest decreases by 10 percentfor every minute that passes beforethe heart’s rhythm is restored. Cardiac Arrest Survival Act of2000, Pub. L. No. 106-505, § 402(5), 114 Stat. 2314. It is estimated that 30 percentofthose who experience cardiac arrest could be saved if an AED were used immediately. Id. § 402(4). Target sells AEDs on its website for approximately $1,200. AEDscan be used bythe untrained, as the devices provide oral instructions to users and “are designed not to allow a user to administer a shock until after the device has analyzed a victim’s heart rhythm and determined that an electric shock is required.” Id. § 402(8). Verdugo’s mother and brother filed a wrongful death action against Targetin California Superior Court, and Target removed to federal court. Target then filed a motion to dismiss pursuantto Federal Rule ofCivil Procedure 12(b)(6), which the district court granted, holding that Target had no duty to acquire and install an AED. The Verdugosappealed, arguing that a duty does exist under California common law and,in the alternative, asking that the question be certified to the California Supreme Court. Target opposed certification. IV STATEMENT OF REASONS FOR THE REQUEST The resolution of the question presented by this case implicates strongstate interests and could have wide-reaching VERDUGO V. TARGET CORPORATION 7 effects in the state of California. The Verdugos seek the announcement of a common-law rule that would require manyretail establishmentsacross the state to acquire AEDs. Target suggests that such a rule would burden it and many companies like it, that California common law does not support such a rule, and that the California AED statutes preclude the imposition of such a commonlaw rule. More broadly, Target maintains that California common law does not support any requirement that property owners provide first aid to invitees beyond calling 911 to summonassistance. As a matter of comity, we consider the California Supreme Court better positioned to address these major questions of California tort law than this court. See Klein v. United States, 537 F.3d 1027, 1030 (9th Cir. 2008) (order). A Both parties agree that there is no statutory duty in California requiring a business like Target to obtain a defibrillator. The California legislature has enacted a series of statutes governing AEDs that are acquired by building owners and managers. See Cal. Health & Safety Code § 1797.196 (West 2012); Cal. Civ. Code § 1714.21(d) (West 2012) (providing immunity from civil liability for those who acquire AEDs as long as they comply with specified maintenance, testing, and notice requirements). These statutes “reflect legislative policy to encourage the availability ofAEDsbyproviding immunity from liability for those who acquire the devices.” Rotolo v. San Jose Sports & Entm't, LLC, 151 Cal. App. 4th 307, 314 (Ct. App. 2007). At the same time, the legislature has declared that “(njothing in this section . . : may be construed to require a 8 VERDUGO V. TARGET CORPORATION building owneror a building manager to acquire and have installed an AED in any building.” Cal. Health & Safety Code § 1797.196(f). Whether the AEDstatutes as a whole, including § 1797.196(f), preclude the existence of a common law duty to acquire an AEDis oneofthe issuesin this case. See Rotolo, 151 Cal. App. 4th at 325. Target argues, and the district court held, that the statutory scheme has“occupiedthefield,” and that imposing a common law duty here would “defeat the underlying legislative purpose.” Id. at 314. For this proposition, Target relies largely on Rotolo, which held that where a hockey rink had acquired an AED butfailed to notify invitees of its existence and location, and a hockeyplayer diedas a result, the statutory scheme precluded commonlaw liability where there had been compliancewiththe statutory requirements for immunity. /d. at 322-23. The Verdugos maintain, to the contrary, that the thrust of California’s legislative scheme regarding AEDs is to encourage their availability by providing immunity for those who acquire them and comply with training and maintenance requirements. Jd. at 319-20. Accordingto the Verdugos,the statutes deal with situations in which business owners do acquire AEDs and do not apply to the situation presented here, where a business owner has not acquired an AED. Imposing a common law duty to acquire an AEDin these circumstances, the Verdugos maintain, wouldnotfrustrate the legislature’s desire to promote the acquisition of AEDs by providing a safe harbor from liability for those whoinstall and maintain them properly, as any business required to install an AED under a commonlaw tort theory would be entitled to statutory immunity. Onthis analysis, the existence VERDUGO V. TARGET CORPORATION 9 of California’s statutory scheme is not determinative as to whether a commonlaw duty exists. B If the court were to accept the Verdugos’ view of the relationship between the AED statutes and California common law, then the pertinent question would become whether Target Stores had a duty under California common law to have an AEDavailable. There is under California law a “special relationship” between business owners and their invitees, which creates a duty to provide “‘assistance [to]... customers who become ill or need medical attention.’” Delgado v. Trax Bar & Grill, 36 Cal. 4th 224, 241 (2005) (alteration in original) (quoting Breaux v. Gino’s, Inc., 153 Cal. App. 3d 379, 382 (Ct. App. 1984)). Beyondthis basic principle, California’s invitee precedents are in some tension as they pertain to the issue in this case. Target suggests, first, that the duty to provide medical assistance to invitees is uniformly discharged simply by calling 911, relying for this proposition on Breaux. In Breaux, the Court of Appeal held that a restaurant had fulfilled its duty to a choking patron by summoning emergency services and was not required to provide further assistance. 153 Cal. App. 3d at 381-82. The Verdugos point out, however, that Breaux relied in its reasoning on a statutory scheme similar to the one implicated in Rotolo: California law required the posting in restaurants offirst aid instructions for choking victims and created a safe harbor from liability for restaurants that did so. Jd. at 381 & n.2. Gino’s, the defendant in Breaux, had postedtheinstructions required for the safe harbor. Under those circumstances, 10 VERDUGO V. TARGET C ORPORATION imposing a common law duty beyond cal ling 911 would, as in Rotolo, have contradicted the legisla tive scheme. Here, in contrast, Target did not have an AED available on the premises, and so had not taken the steps ne cessary underthe statute to trigger immunity from liability. Just as Target relies on Breaux, so the Ver dugosrely on Delgado, maintaining that it refutes any ca tegorical rule that summoning emergencyservices is alwayss ufficientto fulfill a business’s duty ofcareto its patrons. In D elgado, the court held that a bar had a duty to do more th an simply call the police when a fight broke out betwee n several of its customers. 36 Cal. 4th at 245-46. In dete rmining the scope ofthe duty owedto invitees, Delgado obse rved, foreseeability of injury is a “‘crucial factor.” Id. at 237 (quoting Ann M. v. Pac. Plaza Shopping Ctr., 6 Cal. 4th 666 , 676 (1993)). The foreseeability of the harm must be bala nced “against the burden ofthe duty to be imposed.” Ann M. , 6 Cal. 4th at 678. Where the burden of preventing the har m is great, a higher degree offoreseeability is required, and wh ere “the harm can be prevented by simple means, a lesser ‘degree of foreseeability may be required.” Id. at 679 (internal quotation marks omitted). Applyingthis analysis, t he court in Delgado reasoned thatthe bar’s bouncers could for esee that a fight was aboutto erupt and,in that situation, ther e were “reasonable, relatively simple, and minimally burde nsome steps” they could have taken to prevent it. Delgado, 36 Cal. 4th at 246. In so holding, the court distinguished A nn M., in which the plaintiffwas raped in the shopping cente r where she worked. Ann M., 6 Cal. 4th at 671. Noting that h iring security guards would be relatively burdensome, the cour t concluded that the harm that befell the plaintiff was not suf ficiently foreseeable to justify imposing this duty. Id. at 679-80 . VERDUGO V. TARGET CORPORATION 11 While the court has thus laid out a basic framework for analyzing the scope of the duty to prevent harm to invitees, neither Delgado norAnn M. involvedthe dutyto providefirst aid to invitees, much less decidedthe precise issue presented here, the duty to have AEDsavailable on one’s business premises. Nor does applying the general test articulated in Delgado provide “clear controlling California precedent.” Klein, 537 F.3d at 1030 (internal quotation marks omitted). On one hand, it was not foreseeable to Target that Verdugo herself would suffer cardiac arrest, and so Target wasnot awareofthe specific danger, which the bouncers in Delgado were. On the other hand, California courts considering foreseeability as an aspectofduty often focus on whether the type of harm suffered was foreseeable, not whether “‘a particular plaintiffs injury was reasonably foreseeable in light of a particular defendant’s conduct.’” Carrera v. Maurice J. Sopp & Son, 177 Cal. App. 4th 366, 378 (Cal. Ct. App. 2009) (emphasis in original) (quoting Ballard v. Uribe, 41 Cal. 3d 564, 572 n.6 (1986)). In this sense, it could be foreseeable to Target that one of its customers mightsuffer sudden cardiac arrest while shopping, given the fact that more than 700 people die of sudden cardiacarrest in the United States every day. Cardiac Arrest Survival Act § 402(1). Even so, it is not clear to us under California precedents whetherthe foreseeability inquiry is to be undertaken on a store-by-store or a company-wide basis, or what degree of likely occurrence ofa particularillness is sufficient to make that occurrence foreseeable. Moreover,the parties dispute the degree to which the foreseeability issue should be influencedby the location ofthis particular Target store—in a shopping center—orbyits large size, both factors which increase the likelihood that 911 or other outside AED 12 VERDUGO V. TARGET CORPORATION assistance will not be able to reach patrons suffering sudden cardiac arrest in time to save them. The burden side ofthe analysis is similarly debatable under the existing precedents. Target sells AEDs online for approximately $1,200 each. For a property owner to be eligible for the statutory immunity from liability, an AED, once purchased, must be checked every 30 days, and one employee must be trainedin its use. Cal. Health & Safety Code § 1797.196(b)(2). Requiring Target to purchase and maintain an AED foreachofits California stores would be economically less burdensomethan,for example, requiring it to hire security guards to prevent crime. See Ann M., 6 Cal. Ath at 679; see also Sharon P. v. Arman, 21 Cal. 4th 11 81, 1190 (1999). On the other hand, requiring such preventive purchases appears more burdensome than requiring already- employed bouncersto interveneto stop a fight onceit occurs. See Delgado, 36 Cal. 4th at 246-47. Moreover, as with the foreseeability prong,the California precedents do not provide clear guidance as to whether the burden is to be evaluated on a store-by-store or a company-widebasis. In sum, given the uncertainty in the most applicable California precedentsas appliedto the present circumstances, - weighing the foreseeability of the harm suffered by Verdugo against the burden to be imposed on Target does not provide a clear answerto the question of whether Target had a duty under California law to purchase AEDs. VERDUGOV. TARGET CORPOR ATION 13 C The court in bothAnn M. andDelgado also mentioned the factors listed in Rowlandv. Christian, 69 Cal. 2d 108, 112-13 (1968), as being useful “‘in determi ning the existence and scope of a duty [to invitees] in a parti cular case.” Delgado, 36 Cal. 4th at 237 n.15 (quoting Ann M.,, 6 Cal. 4th at 675 n.5).’ In addition to foreseeability a nd burden,these factors are: [1] the degree of certainty that the plaintiff suffered injury, [2] the closeness of the connection between the defendant’s c onduct and the injury suffered, [3] the mora l blame attached to the defendant’s conduct, [4] the policy of preventing future harm, .. . and [5] the availability, cost, and preval ence of insurance for the risk involved. Rowland, 69 Cal. 2d at 113. Applying these factors also does no t provide a clear answerto the question whether Target had a duty to have an AEDavailable on its premises. With out an AED on-site,it was virtually certain that Verdugo wou ld die. Defibrillation 1 Rowland seemsto haveoriginally a rticulated these factors as helpful in determining whether to make an ex ception to “the generalprinciple that a personis liable for injuries caused b y his failure to exercise reasonable care,” and notfor the purpose of deter mining the precise scope of the duty ofcare thatarises from a special relat ionship. Rowland, 69 Cal. 2d at 112. Nevertheless, the California Suprem e Court has since considered those factors as “useful”for this purpose. S ee Delgado,36 Cal. 4th at 237 n. 15; Ann M., 6 Cal. 4th at 675 1.5. 14 VERDUGO V. TARGET CORPORATION is the only definitive treatment for sudden cardiacarrest, and “every minute that passes before returning the heart to a normal rhythm decreases the chance of survival by 10 percent.” Cardiac Arrest Survival Act § 402(5). On the other hand,it is far from certain that immediate treatment with an AED will revive a particular patient. While the first two factors thus may support the imposition of a duty, they do so only mildly. The third factor weighs againstfinding a duty, as Target’s failure to provide an AED was not morally blameworthy in the sense that term is used by California courts. See Rotolo, 151 Cal. App. 4th at 337-38. The fourth factor strongly supports finding a duty, as doing so would help prevent future harm by increasing the availability of AEDs.Thefinal factor also supports a duty, as California has provided a safe harbor from liability for businesses that acquire AEDs, so no insurance would be required as long as the conditions for invoking the safe harbor were met. Cal. Civ. Code § 1714.21(b). D Pertinent to our request for certification, finally, is that courts in other jurisdictions applying similar balancing or multi-factor approachesto liability have reached divergent conclusions when confronting AED issuessimilar to the one in this case. Some courts to have considered the matter have held that there is no duty on the part of business owners to provide AEDs to be used on their invitees in the event of cardiac arrest. See Boller v. Robert W. WoodruffArts Ctr., Inc., 716 S.E.2d 713, 715 (Ga. Ct. App. 2011); L.A. Fitness Int’l, LLC v. Mayer, 980 So. 2d 550, 561 (Fla. Dist. Ct. App. 2008); Salte v. YMCA ofMetrop. Chi. Found., 814 N.E.2d 610, 615 (Ill. App. Ct. 2004); Atcovitz v. Gulph Mills Tennis VERDUGO V. TARGET CORPORATION 15 Club, Inc., 812 A.2d 1218, 1224 (Pa. 2002); Rutnik v. Colonie Ctr. Court Club, Inc.,672 N.Y.S.2d 451, 453 (N.Y. App. Div. 1998). Other courts, however, have allowed similar AED suits to go to the jury, concluding that the duty question turns on case-specific factual matters. See Aquila v. Ultimate Fitness, 52 Conn. L. Rptr. 81 (Conn. Super. Ct. 2011); Ksypka v. Malden YMCA, 22 Mass. L. Rptr. 122 (Mass. Super. Ct. 2007); Fowler v. Bally Total Fitness Corp., No. 07 L 12258 (ill. Cir. Ct. Oct. 27, 2007). Thus, neither California precedents nor cases from other courts provide us with sufficient guidance to answer the important question of California tort law presented by this case. Wetherefore respectfully ask the California Supreme Court for guidance and will follow that guidance once received. Vv Pursuant to California Rule of Court 8.548(d), the Clerk of this court shall forward an original and 10 copies ofthis order, under official seal, to the California Supreme Court, along with a certificate of service on the parties, and copies of all briefs, excerpts of record, requests for judicial notice, and post-argumentletters that have beenfiled with this court. Theparties shall notify the Clerk of this court within 14 days of any decision by the California Supreme Court to accept or to decline our request. If the California Supreme Court accepts, the parties shall file a joint report six months after the date of acceptance and every six months thereafter advising usofthe status ofthe proceedings. The parties shall 16 VERDUGO V. TARGET CORPORATION also notify the Clerk of this court within 14 days of the issuance of an opinion by the California Supreme Court. IT IS SO ORDERED. GRABER,Circuit Judge, concurring: I concur fully in the Order certifying a question to the California Supreme Court. I write separately only to note that, in the absence ofthat court’s guidance, I would disagree with the dissent’s view,as I understand extant California law. First, the legislature’s wide-ranging statute concerningthe availability and use of AEDs strongly suggests that the legislature occupied the field and displaced any duty that a business may have under California commonlaw to acquire or install an AED. See Cal. Health & Safety Code § 1797.196(f) (“Nothing in this section or Section 1714.21 may be construed to require a building owner ora building manager to acquire and have installed an AED in any building.”). Second, I read California law to establish only a limited duty on the part of a business to cometo the aid of an invitee who is in physical distress. Third, because the foreseeability ofcardiac arrest is universal, the dissent’s view contains no limiting principle; all businesses, ofany size, can foresee equally that a customer might suffer sudden cardiac arrest. Thus, in essence, finding a common law duty might well eviscerate California Health & Safety Code section 1797.196(f). In short, because reasonable minds differ aboutthe state law that we must apply, certification is particularly VERDUGO V. TARGET CORPORATION 17 appropriate here. See Klein v. United States, 537 F.3d 1027, 1030 (9th Cir. 2008) (stating that certification is appropriate if “no clear controlling California precedent squarely addresses the question before us” (internal quotation marks omitted)). PREGERSON,Circuit Judge, dissenting: On August 31, 2008, 49-year-old Mary Ann Verdugo went shopping at a Target store in Pico Rivera, California. While inside the store, Mary Ann suffered sudden cardiac arrest. She died within minutes. Paramedics were called promptly. But it took several minutes for them to arrive at Target’s curbside and several minutes more to reach Mary Ann inside the big boxstore. The paramedics attempted to revive Mary Ann. But it was too late to save herlife. Nearly 300,000 Americansare victims of sudden cardiac arrest every year. Victims of sudden cardiac arrest collapse and quickly lose consciousness—often. without warning. Death follows unless normalheart rhythm is restored within a matter of minutes. Sudden cardiac arrest is treatable, but more than 95 percent of cardiac arrest victims die, mainly because of the lack of an available external defibrillator (“AED”). Cardiac Asrest Survival Act of 2000, Pub. L. No. 106-505, § 402(3), 114 Stat. 2314 (2000). Although “CPR mayhelp prolong the window of survival,” defibrillation “is the only definitive treatment” for sudden cardiac arrest. The American Red 18 VERDUGO V. TARGET CORPORATION Cross AED Frequently Asked Questions, http://www.redcrosscny.org/pdf/AEDFAQs.pdf. To be successful, an AED shock generally must be administered within five minutes from the onset of sudden cardiac arrest. Despite the frequency of sudden cardiac arrest and the absolute necessity of using an AED within the first few minutes, the Pico Rivera Target failed to equip its store with a life-saving defibrillator. That is why Mary Ann Verdugo’s life could not be saved. A business has a “special relationship” with its invitees. This special relationship createsan affirmative duty requiring the businessto providefirst aid to its invitees who becomeill or injured on the premises, and “to care for them until they can be cared for by others.” Restatement (Second) of Torts § 314A; see also Delgado v. Trax Bar & Grill, 36 Cal. 4th 224, 241 (2005). The scope of a business’s duty to provide care is “determined in part by balancing the foreseeability of the harm against the burden of the duty to be imposed.” Ann M. v. Pacific Plaza Shopping Ctr., 6 Cal. 4th 666, 678 (1993). “Where the burden of preventing future harm is great, a high degree of foreseeability may be required.” Jd. (citation and quotation marks omitted). Nevertheless, “in cases where there are strong policy reasonsfor preventing the harm,orthe harm can be prevented by simple means, a lesser degree of foreseeability may be required.” Jd. at 678-79 (citation and quotation marks omitted). “Duty in such circumstancesis determined by a balancing of ‘foreseeability’ . . . against the ‘burdensomeness, vagueness, and efficacy’ of the proposed VERDUGO V. TARGET CORPORATION 19 _.. measures.” Id. at 679 (quoting Gomezv. Ticor, 145 Cal. App. 3d 622, 631 (Ct. App. 1983)). Morethan 700 people in the United States die of cardiac arrest every day. Cardiac Arrest Survival Act at § 402(1). Because of the significant number of people who suffer sudden cardiac arrest, it is reasonably foreseeable that a customer, while shopping at the Pico Rivera Target, could suffer sudden cardiac arrest. Moreover,if a customersuffers sudden cardiac arrest in the large Pico Rivera Target in an area where paramedics cannotreach her within five minutes, she will likely die unless there is an accessible defibrillatorin the store. Seconds count whenthe life of a cardiac arrest victim is in the balance. “[E]very minute that passes before returning the heart to a normal rhythm decreases the chance of survival by 10 percent.” Cardiac Arrest Survival Act at § 402(5) (emphasis added). But the harm can be easily reduced by quick use of a defibrillator. When “CPR and AEDsare used within three to five minutes from the onset of collapse,the survival rate ofa suddencardiac arrest victim is as high as 50 to 70 percent.” Automatic External Defibrillators: Hearing on S.B. 1436 Before the S. Comm. on Health, 2011-2012 Reg. Sess. 1-2 (Cal. 2012). Defibrillators are relatively inexpensive and virtually foolproof. Target sells an AEDonits website for $1,199.99. AEDsare“safe andeffective, even whenused by lay people.” Cardiac Arrest Survival Act at § 402(8). AEDsare virtually fail-safe because they do not “allow a user to administer a shock until after the device has analyzed a victim’s heart rhythm and determinedthatan electric shock is required.” Id. 20 VERDUGO V. TARGET CORPORATION Purchasing an AEDandperiodically training an employee on its use is not much of a burden for a large store like the Pico Rivera Target.’ Providing an AED is an easy and effective way to remedya grave and foreseeable harm.In the analogous context of preventing criminals from harming invitees, the California Supreme Court has recognizedthat, in certain circumstances, some precautionary measures are onerous. Some measures found onerousinclude: employing security guards, Ann M., 6 Cal. 4th at 679; and providing bright lights in parking garages, monitoring security cameras, and requiring existing personnel to make periodic walk- throughs of the property, Sharon P. v. Arman, Ltd., 21 Cal. 4th 1181, 1196 (1999). Butthis case is different. The remedy is not onerous, and a defibrillator “is the only definitive treatment for [sudden cardiac arrest].” The American Red Cross AED Frequently Asked Questions, http://www.redcrosscny.org/pdf /AED_FAQs.pdf. Acquiring a relatively inexpensive AED and training one employee to use it is not comparable to hiring a security guard or requiring an employee to walk through a garage. A security guard is hired for one purpose: to guard a premises. Moreover, requiring existing personnel to make periodic walk-throughs removesthat employee from ' Moreover, in California, any business that acquires an AED is “not liable for any civil damages resulting from any acts or omissions in the rendering of the emergency care” if the business, among other things, regularly maintains the defibrillator, trains one employee per every AED unit on AED usage, and complies with regulations governing placement of the AED. Cal. Health & Safety Code § 1797.196(b). California limits the liability for civil damagesofany entity that acquires an AED so long as the entity complies with the non-onerous requirements of Cal. Health & Safety Code § 1797.196(b). VERDUGO V. TARGET CORPORATION 21 their regular duties for a significant amount of time and training. A Pico Rivera Target employee trained in proper AEDusage, however,is not hired specifically to use the AED device andis not required to periodically abandonhis or her normalpost; the employee is merely trained on how to use the foolproof defibrillator. Finally, unlike bright lights, security cameras, and periodic basement walk-throughs, acquiring anAED would be extremely effective in preventing death by sudden cardiac arrest. Because of the reasonable foreseeability that a Pico Rivera Target customer could suffer sudden cardiac arrest, the insignificant burden of acquiring an AED and training employees on howto use the simple device, and the virtual certainty ofdeath ifan AED is not used within minutes ofthe onset of suddencardiacarrest, the Pico Rivera Target had a duty to have available an AEDin its store. The majority refers the question to the California SupremeCourt. I believe that in the circumstancesofthis case, the California common law duty for a business to provide emergency first aid to its invitees requires the availability of an AED for cases of sudden cardiac arrest. Thus, I would reverse: the district court’s dismissal ofthe complaint against Target and remand for further proceedings.
