The Retail Litigation Center (RLC), in conjunction with the California Retailers Association (CRA), filed an amicus brief in the Supreme Court of the State of California requesting the court to recognize the intent of actions previously taken by the State Legislature and Executive branches promoting voluntary acquisition of automatic external defibrillator (AED) devices and preclude courts from imposing a mandatory obligation on retail businesses.
The case in questions, Rosemary Verdugo v Target Stores, is currently pending before the Federal Court of Appeals for the Ninth Circuit. At issue is whether under California common law, large retailers, have an obligation to proactively acquire and make available AEDs in anticipation of potential cases of sudden cardiac arrest occurring on their premises. The federal district court had dismissed the Plaintiffs’ claim based on a determination that there was no duty under California common law requiring businesses to purchase and make AEDs available at public facilities. Plaintiffs appealed the lower court’s decision to the Court of Appeals for the Ninth Circuit. As the issue at the heart of the case is a unique question of California common law, the Court of Appeals for the Ninth Circuit certified the question to the California Supreme Court for its guidance.
The brief filed with the California Supreme Court highlights that the issue of whether businesses have an obligation to acquire AEDs has been addressed by the California State Legislature when it enacted a narrow statutory requirement applicable only to a limited number of businesses. Further, by providing immunity to businesses who voluntarily acquire AED devices—the Legislature further indicated its preference to maintain the obligation as a voluntary one, not a statutory or common law obligation.
“The public policy issue has been addressed by the California State Legislature in a sound manner rendering any attempted expansion of obligation inconsistent with the Legislature’s demonstrated intent,” said Deborah White, RLC President. “The Legislature’s careful and thorough consideration of the public policy implications of a narrow statutory requirement demonstrated its intent to preempt the field and preclude any common law obligations related to AEDs. To attempt to impose a common law obligation in the face of clear legislative intent is concerning as it could create precedent requiring businesses to take on a whole host of burdensome obligations to deal with other potential unforeseen medical emergencies and circumstances outside their control; simply put, the burdens outweigh the foreseeability of harm.”
The brief argues that a business’s common law duty of care toward its patron is only expanded when the risk of harm is foreseeable and arises from the business or property and the actions to be imposed on the business are minimally burdensome. The brief further argues that the requirements for imposing an expanded common law duty of care to require retailers to acquire and maintain AEDs have not been met. The brief cites the random and unforeseen nature of incidents of cardiac arrest, a business’s lack of knowledge and inability to control the risk, and the significant AED-related costs and burdens (purchase cost, maintenance, and training of employees).
From the brief filed with the Supreme Court in the State of California:
“In regulating this area, the Legislature has explicitly addressed and resolved the complicated and difficult policy questions surrounding this issue, including whether the increased expenses…outweigh the…benefits. Further, the legislature made clear its understanding that the common law does not regulate this area”
“By contending that businesses have a duty to…be prepared to treat medical conditions which occur randomly, Petitioners ask this court to create a duty in a manner that does not comport with the common law. This should be left to the Legislature, which already has spoken on the issue.”
The complete brief can be found HERE. The brief was drafted by Jackson Lewis LLP attorneys Dylan B. Carp and Sherry L. Swieca.
The Retail Litigation Center is a public policy organization that identifies and engages in legal proceedings which affect the retail industry. The RLC, whose members include some of the country’s largest retailers, was formed to provide courts with retail industry perspectives on significant legal issues, and highlight the potential industry-wide consequences of legal principles that may be determined in pending cases.