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

v.

OPINION

TARGET CORPORATION, a Minnesota corporation, Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Otis D. Wright II, District Judge, Presiding

Argued May 7, 2012 Submitted October 28, 2014 Pasadena, California

Filed October 28, 2014

Before: Harry Pregerson, Susan P. Graber, and Marsha S. Berzon, Circuit Judges.

Per Curiam Opinion; Separate Opinion by Judge Pregerson SUMMARY*

California Law

After the California Supreme Court answered a question that was certified by the panel, the panel affirmed the district court’s dismissal of a case, and held that Target Corporation, a commercial property owner, had no common law duty to provide an Automatic External Defibrillator in its stores for use in a medical emergency.

Judge Pregerson wrote separately to express his hope that Target will recognize its moral obligation to make Automatic External Defibrillators available for use in a medical emergency, and that the California legislature will take a hard look at the issue.

COUNSEL

David Griffith Eisenstein, David G. Eisenstein Law Offices, Carlsbad, California; Robert A. Roth, Tarkington, O’Neill, Barrack & Chong, Berkeley, California, for Plaintiffs- Appellants.

Ryan Moore Craig and Benjamin R. Trachtman, Trachtman & Trachtman, Mission Viejo, California; Donald Manwell Falk and Richard Caldarone, Mayer Brown LLP, Palo Alto, California, for Defendant-Appellee.

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

VERDUGO V. TARGET CORP. 3

OPINION

PER CURIAM:

Mary Ann Verdugo was shopping with her mother and brother in a Pico Rivera, California, Target when she experienced sudden cardiac arrest. There was no Automatic External Defibrillator (“AED”) in the store, and by the time paramedics arrived, Verdugo had died. Verdugo’s family sued Target, alleging that as a commercial property owner, Target had a common law duty to maintain an AED onsite. Ruling that Target had no such duty, the district court dismissed the Verdugos’ claim. The Verdugos appealed to this court.

We determined that California law did not clearly answer the question whether Target was required to have AEDs in its stores and viewed “the California Supreme Court [as] better positioned to address [this] major question[] of California tort law than this court.” Verdugo v. Target Corp., 704 F.3d 1044, 1046 (9th Cir. 2012). Accordingly, we certified a question to the California Supreme Court pursuant to Rule 8.548 of the California Rules of Court. Id. at 1045. That court construed the certified question as follows: “[W]hether, under California law, the common law duty of reasonable care that defendant Target Corporation (Target) owes to its business customers includes an obligation to obtain and make available on its business premises an automated (or automatic) external defribrillator (AED) for use in a medical emergency.” Verdugo v. Target Corp., 59 Cal. 4th 312, 316 (2014).

The California Supreme Court has answered the restated certified question as follows: “[U]nder California law, Target’s common law duty of care to its customers does not include a duty to acquire and make available an AED for use in a medical emergency.” Id. at 317. A copy of the California Supreme Court’s opinion is attached as an appendix to this opinion. We said that we would follow the California Supreme Court’s guidance, 704 F.3d at 1050, and we do. The district court’s ruling that Target had no common law duty to provide an AED in its store is consistent with the California Supreme Court’s answer to the certified question, and so we AFFIRM.

PREGERSON, Circuit Judge, writing separately:

The California Supreme Court has spoken. This decision holds that “under California law, Target’s common law duty of care to its customers does not include a duty to acquire and make available an AED for use in a medical emergency.” Verdugo v. Target Corp., 59 Cal. 4th 312, 317 (2014). And so, in this diversity case, that holding controls. But that decision troubles me. Therefore, I write separately hoping that big box stores like Target will, at the very least, recognize their moral obligation to make AEDs available for use in a medical emergency. Should that not come to pass, I hope that our California Legislature takes a hard look at this issue and considers a statutory standard of care that will protect consumers by requiring big box stores to make life- saving AEDs available.

Stores like Target have a “special relationship” with their business invitees. This special relationship creates an affirmative duty that requires a business to provide first aid to invitees who become ill or injured on the premises, and “to

VERDUGO V. TARGET CORP. 5

care for them until they can be cared for by others.” Restatement (Second) of Torts § 314A. I believe that AEDs should be considered first aid. They are crucial to the survival of sudden cardiac arrest victims. They are inexpensive, nearly foolproof, and are necessary when, as happened here, paramedics cannot reach a victim in time to save the person’s life. I believe that AEDs should be as common as first aid kits, and that big box stores like Target should be required to make them available to their customers who suffer sudden cardiac arrest.

About 360,000 Americans are treated by emergency medical services for sudden cardiac arrest before reaching a hospital. See Verdugo, 59 Cal. 4th at 319. “Less than 10 percent of those victims survive.” Id. Victims of sudden cardiac arrest collapse and quickly lose consciousness—often without warning. Sudden cardiac arrest is treatable, but time is of the essence when the life of a sudden cardiac arrest victim is in the balance: “every minute that passes before returning the heart to a normal rhythm decreases the chance of survival by 10 percent.” See Cardiac Arrest Survival Act of 2000, Pub. L. No. 106-505, § 402(5), 114 Stat. 2314 (2000).

There is good reason for big box stores like Target to be equipped with AEDs: they save lives. The high percentage of death due to sudden cardiac arrest can be reduced by the quick use of a defibrillator. When “CPR and AEDs are used within three to five minutes from the onset of collapse, the survival rate of a sudden cardiac 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). Yet, big box stores like Target are currently not required by the State of California to have available thse life-saving devices for their patrons. But big box stores are not prevented from making a voluntary choice to do so.

Not only is the use of an AED the most effective way to reduce death due to sudden cardiac arrest, but AEDs are also relatively inexpensive. Target used to sell Phillips HeartStart AEDs on its website for about $1,200. Although Target has removed the product from its website, these devices can still be obtained for similarly inexpensive prices elsewhere. See e.g., http://www.heartsmart.com/philips-heartstart-onsite-aed- package-p/bus-pkg-onsite.htm (selling the Phillips HeartStart AED for $1,199) (last visited Oct. 16, 2014); http://phss.redcross.org/aedoffers/ (offering several different brands of defibrillators) (last visited Oct. 16, 2014).

Moreover, modern AEDs are nearly foolproof even without training. One study in Circulation, the American Heart Association journal, showed that untrained sixth graders safely and properly used AEDs and took only slightly longer than emergency-trained personnel to deliver the defibrillator shock. See John W. Gundry et al., Comparison of Naive Sixth-Grade Children with Trained Professionals in the Use of an Automated External Defibrillator, 100 Circulation 1703 (1999). Because little training is involved, and many of the devices provide audio step-by-step instructions, it would not be difficult for big box stores to provide the minimum training required to qualify for immunity from liability under California law. See Cal. Health & Safety Code § 1797.196.

Big box stores in particular should be required to equip their stores with AEDs. The sheer size of these stores increases the time for paramedics to reach a sudden cardiac

VERDUGO V. TARGET CORP. 7

arrest victim, making quick access to an AED of paramount importance. Mary Ann Verdugo died in the Pico Rivera Target store in part because the paramedics could not get to her inside the store in time to administer an AED. It is obvious why paramedics would have a hard time getting to the Target location and navigating inside the store within the five minute time window—the average size of a Target store is 135,000 square feet. See Press Release, Target Corporation, Target to Open TargetExpress Small- Format Store in San Diego (Sept. 18, 2014), available at http://pressroom.target.com/news/target-to-open- targetexpress-small-format-store-in-san-diego (last visited Oct. 16, 2014). Thus, if another customer suffers sudden cardiac arrest in a big box store like Target, the probability of her survival falls significantly if there is no access to a defibrillator in the store.

Many states, including California, have examined this issue and developed public policies promoting AED use, including expanding civil immunity to businesses that have installed AEDs and meet certain statutory requirements. See Kevin M. Rodkey, Medical Technology Meets the Maryland General Assembly: A Case Study in Handling Advances in Automated External Defibrillator Technology, 12 J. Health Care L. & Pol’y 81 (2009). However, California’s immunity statute does not require businesses to install and maintain AEDs, despite all the reasons why AEDs are crucial first aid equipment for sudden cardiac arrest victims.

Yet at least one state—Oregon—has enacted a statute that requires big box stores to have an AED. The Oregon statute provides that a “place of public assembly,” meaning “a single building that has 50,000 square feet or more of indoor floor space and where . . . [t]he public congregates for purposes such as . . . shopping, . . . [and a]t least 50 individuals congregate on a normal business day” is required to “have on the premises at least one [AED].” ORS § 431.690. Upon enacting the law, one Oregon State Senator called AEDs “the fire extinguishers of the 21st century—the sooner more are available in public places, the more lives we can save.” News Release, Senate Majority Office, Expanded Access to Defibrillators Wins Senate Support, Oregon State Legislature (OR Legis. News Rel., 4/28/2009).

If Oregon can require businesses such as big box stores to provide this minimally burdensome, yet life-saving equipment, so too can California, a leader in consumer protection. I implore the California Legislature to consider this issue. I also hope that Target and other big box retailers will uphold their moral obligation to ensure the health and safety of their customers by voluntarily installing AEDs in their stores.

VERDUGO V. TARGET CORP. 9

APPENDIX

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