Rosemary Verdugo v. Target Corporation

Order; Concurrence by Judge GRABER; Dissent by Judge PREGERSON.

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 this order. This case is withdrawn from submission until further order of this court, and all further proceedings in this court are stayed pending final action by the California Supreme Court.

There is no controlling precedent resolving the question we set 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. We agree to follow the answer provided by the California Supreme Court.

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 of this case is:

The names and addresses of counsel are:

II

QUESTION OF LAW

The question of law we wish to be answered is:

In what circumstances, if ever, does the common law duty of a commercial property owner to provide…

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 of that court’s guidance, I would disagree with the dissent’s view, as I understand extant California law.

First, the legislature’s wide-ranging statute concerning the availability and use of AEDs strongly suggests that the legislature occupied the field and displaced any duty that a business may have under California common law 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 or a 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 come to the aid of an invitee who is in physical distress. Third, because the foreseeability of cardiac arrest is universal, the dissent’s view contains no limiting principle; all businesses, of any 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…

dissenting:

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 box store. The paramedics attempted to revive Mary Ann. But it was too late to save her life.

Nearly 300,000 Americans are victims of sudden cardiac arrest every year. Victims of sudden cardiac arrest collapse and quickly lose consciousness—often without warning. Death follows unless normal heart 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 Arrest Survival Act of 2000, Pub.L. No. 106-505, § 402 (3), 114 Stat. 2314 (2000). Although “CPR may help prolong the window of survival,” defibrillation “is the only definitive treatment” for sudden cardiac arrest. The American Red Cross AED Frequently Asked Questions, http://www.redcrosscny.org/pdfiAED_ FAQs.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…

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 reach the 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 AED in its 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 cardiac arrest often strikes with no prior symptoms and can strike a heart VERDUGO V . TARGET CORPORATION

that is otherwise healthy. A shock from an AED can restart a heart by correcting the misfiring of its electrical impulses. To be effective, the AED must be used immediately. The chance of surviving sudden cardiac arrest decreases by 10 percent for…