Sometimes, seemingly small and unrelated events intertwine to have an outsized impact and drive successive change in unexpected ways.
S.B. 658 amends section 1714.21 of the CA Civil Code and section 1797.196 of the CA Health and Safety Code to substantially reduce the requirements placed upon AED owners to qualify for Good Samaritan protection in the state. Most notably, the new law removes AED/CPR Training requirements and eliminates the need for a physician to oversee a company’s AED program. In addition, the new law reduces the frequency with which AED owners need to check their devices and pares back documentation rules.
S.B. 287 installs mandates across a sweeping array of building types (assembly, business, educational, factory, institutional, mercantile, and residential) that, effective 1/1/17, will require AEDs in all new construction, generally subject to an occupancy threshold of 200 people.
On the surface, both items appear to be only minor components of the massive collection of code that comprises California statutory law. Digging a bit deeper however, these acts in tandem may have wide-reaching implications for California and the rest of the country.
Those who follow developments in the AED sector will recall the case brought against Target Corporation by the estate of Rose Mary Verdugo. In this case, the plaintiffs argued that Target had a common law duty to have an AED available on-site to assist someone in cardiac arrest. In June of last year, the California Supreme Court ruled in favor of Target. What is interesting in light of the above legislative changes is the manner in which the court reached its decision.
First, the judiciary was clear in its view that California statutes do not “occupy the field” with respect to AEDs and that the courts are free to determine whether “California common law imposes on a business establishment a duty to acquire or make available an AED for the use of its customers in a medical emergency”.
Second, in reaching its ultimate conclusion that Target did not have a duty to make an AED available, the court heavily weighed the requirements placed upon AED owners in order to qualify for immunity under California’s AED Good Samaritan law. The court concluded that the then-prevailing statutes imposed “numerous obligations” on AED owners, including duties for training, administration and maintenance, making AED ownership “more than a minimal or minor burden”.
With the passage of SB 658, an interesting question arises – what would the court decide today? Appreciating that the training obligations have been removed, inspection duties have been reduced by 2/3, physician oversight is no longer required, and other administrative duties have been pared back, would the court view the new statute as imposing “more than a minimal or minor burden”?
While the new law appears to significantly limit the responsibilities upon AED owners, I can only speculate as to the answer the court might provide the next time this question arises. What I am confident in stating is that this question will be tested again soon. Here’s why:
In providing its ruling, the court left the door open with its opinion that the statutes do not occupy the field. So, it is clear the bench believes that the “duty of care” question can be resolved via common law mechanisms. With the passage of S.B. 658, I would expect that an informed plaintiff attorney will be able to lodge a very credible argument that the onus placed upon AED owners to qualify for Good Samaritan protection is no longer significant. Equally importantly, protests of altruism aside, most plaintiff attorneys are in the business of trying cases to realize an economic return. As S.B. 658 reduces the obligations on AED owners, it also improves the risk / reward calculation for the plaintiff bar with the higher expected value creating greater incentive to file suits.
In reaching its prior decision, the court also looked at statutory mandates for AEDs in certain types of locations. At the time, the court noted that California’s requirements were confined to Health Clubs, explicitly stating that “the Legislature has not imposed such a requirement on other types of business establishments”. The passage of S.B. 287 obviously significantly expands the duty of coverage to include a wide range of establishments.
While S.B. 287 is focused on new construction, it will quickly impact numerous businesses, generating “comparatives” that have been considered favorably for plaintiffs in other case law (e.g. Fowler v. Bally Total Fitness Corp. where the court found that Bally could be tried for gross negligence for not having an AED – despite the lack of a state mandate – with a key part of the reasoning focused upon Bally’s decision to adopt AEDs elsewhere). Thus, businesses need to decide whether covering some locations but not others will subject them to litigation exposure. While some (or even many) may initially decide that they are content to run this risk, it seems safe to assume that others will not.
Viewed through the lens of a company operating on a national basis, this decision becomes even more interesting. Historically, many companies have chosen to put AEDs in select locations but not all – say their headquarters or a handful of sites where local ordinance requires them to do so. It is one thing to support this approach in court when only confronted with requirements from a few small municipalities. A new rationale will be needed when sites are covered across an entire state. How does one argue a logical “stopping point” in court? Is it dictated by state boundaries? Will historical arguments regarding foreseeability continue to hold in the face of new data from the likes of the Institute of Medicine and other sources indicating higher incident rates? How does the argument shift if a company’s competitors take a broad approach to adoption? Accounting for this, we believe that there is meaningful potential for the impact of these changes to resound beyond California, as national operators may feel compelled to proactively reduce their risk and exposure.
From our view, these new laws pose an interesting conundrum. As a company, we staunchly back reform that provides better protection for AED owners and users. Conversely, we are a free market enterprise and do not support mandates that dictate the terms of trade for businesses while arming the plaintiff bar. Historically, California has served as a bell weather on many topics, and like it or not, our sense is that it is playing this role once again.