Opening the Floodgates: Revisiting Premises Liability Cases Against Retailers

The California Supreme Court is currently re-examining an issue previously touched upon by the Sixth District of the California Court of Appeals ten years before.  Are business owners required to make Automatic External Defibrillators (AEDs) available to customers in cases of sudden cardiac arrest?

Duties of a Commercial Property Owner

Under common law, courts have long held the owner of a business place must exercise ordinary care to keep premises in reasonably safe condition for business visitors or warn them of danger, and such duty extends to conditions which may be found dangerous by exercise of reasonable care.  (Young v. Bank of Am. Nat. Trust & Saving Ass’n, 95 Cal. App. 2d 725, 214 P.2d 106 (Cal. Ct. App. 1950)).

This rule was later broadened and expanded by Delgado v. Trax Bar & Grill, 36 Cal. 4th 224, 113 P.3d 1159 (2005).  Delgado held a bar proprietor owed a duty to undertake reasonable steps to secure common areas against foreseeable criminal acts of third parties that were likely to occur in absence of such precautionary measures and to take such appropriate action as was reasonable under circumstances to protect patrons.

In 2007, the Court of Appeals decided Rotolo v. San Jose Sports & Entm’t, LLC, 151 Cal. App. 4th 307, 313, 59 Cal. Rptr. 3d 770, 774 (2007), a wrongful death action concerning a teenager who died as a result of sudden cardiac arrest while participating in an ice hockey game at an ice hockey facility.  In that case, Plaintiff alleged that the ice hockey facility had a duty to notify users of the facility of the existence and location of an automatic external defibrillator. They claimed the timely use of such a device would have greatly increased the teenager’s chances of survival.  The court refused to impose liability on the ice hockey facility for a number of reasons.

First, the court summarized the legislation governing the acquisition and use of AEDs. (Civ.Code, § 1714.21; Health & Saf.Code, § 1797.196; Gov.Code, § 8455.) These statutes reflect legislative policy to encourage the availability of AEDs by providing immunity from liability for those who acquire the devices, when they are used in an attempt to save a life. Importantly, the court noted the Legislature has made clear that building owners and managers have no duty in the first instance to acquire and install an AED. (Health & Saf.Code, § 1797.196, subd. (f).)

Second, the court reasoned that, under common law, the duty of care of a landlord based on the special relationship to tenants and invitees has never been extended to impose an affirmative duty to give notice to prospective invitees of the existence and location of a medical device. In regard to the extent of the duty of a landlord or business proprietor to come to the aid of a sick or injured invitee, courts have found that sound policy limits the extent of this duty to promptly summoning emergency services.

Third, the court rejected Plaintiff’s argument that operators of sports facilities should be duty bound to take affirmative steps to avoid foreseeable injury to participants using the facilities.  As to the owner or manager of the facility, courts have found a limited duty to use due care “not to increase the risks to a participant over and above those inherent in the sport.” (Knight v. Jewett (1992) 3 Cal.4th 296, 316, 11 Cal.Rptr.2d 2, 834 P.2d 696.) The ice hockey facility in this case did nothing to increase the risk of an injury that is inherent in the sport.

New Case Raising Old Questions

The California Supreme Court recently heard arguments in the case of Verdugo v. Target Corporation, a wrongful death suit brought by the relatives of Mary Ann Verdugo, who was shopping at a Target store in Pico Rivera, California when she suffered a sudden heart attack and collapsed.  Although Target employees did call 911 and paramedics did respond to the call within several minutes, Verdugo had died by the time they arrived.  The key issue for the Supreme Court is under what circumstances, if any, a commercial property owner must make AEDs available to customers and other business visitors for use in cases of sudden cardiac arrest.  Target argued that as a commercial property owner, its only duty was to call 911 to request medical assistance.

Although the specific question before the Court addresses commercial property owner’s obligation to make AEDs available to business visitors, a decision to recognize such a duty could open the floodgates to numerous other lawsuits.  Recognizing a duty to provide AEDs based on knowledge that a visitor might have a heart attack on one’s property would raise the issue of whether commercial property owners also have to anticipate and provide medical equipment or medications for other common medical conditions.  If the commercial property owner must focus on responding to the potential medical conditions of each guest rather than reasonably foreseeable dangers inherent to the property itself, the situations for which liability could be imposed could be virtually limitless.  Close attention should be paid when the California Supreme Court renders its decision.

ABOUT THE AUTHOR: Nicole Lenat is a graduate of Pepperdine University School of Law. She focuses on products liability and business litigation.Contact her at

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