Can I Buy That at Target?

The California Supreme Court has ruled, on a question certified by the 9th Circuit Court of Appeals, under California law, that "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."  Forty nine year old Mary Ann Verdugo died of sudden cardiac arrest while shopping in a Pico Rivera, California Target in 2009 and her family is persuaded timely access to an AED by store employess or bystanders might well have saved her life.

Interestingly, this is not a ruling on a statutory requirement for big box retailers to acquire and make use of  an AED but a claim that failure to do so is a breach of common law duty of reasonable care owed to business invitees. California state case law contemplates that a business owner owes some duty of aid to a customer who suffers sudden cardiac arrest on the business property but the Court was not willing to expand this to include the acquisition and use of an AED.  In fact, the Court declined to address whether that business owner duty required anything at all beyond summoning the authorities. The part of the opinion addressing the bad fit between the argued-for duty and the big box retailers targeted is interesting in and of itself. Presumably, California's statutory requirement that health clubs have such equipment on site is on the other side of this good fit requirement although I do wonder about the data behind that.

Of course, a legislative approach is possible — indeed  identified by the  California Supreme Court as one potential route to law reform on this issue. Oregon, for example, has taken this statutory approach which targets "places of public assembly" and not only big box retailers, though the latter may be some of the most significant places of public assembly in modern American life.

The opinion also contains  a considerable discussion of liability concerns, given that California does include the use of AEDs in its Good Samaritan statute, provided there are trained users and the AED equipment is regularly maintained, among other things, that indicate the mere presence of an AED on site would not be sufficient to garner this protection.

A few articles discussing this case make much of the fact that, at least at the time of Mary Ann Verdugo's death, it was reportedly possible to buy an AED from Target online for a $1200. This tells us only that Target Corporation knows what an AED is and what its retail price may be and not that an AED was even present in the Pico Rivera Target on that day in 2009. Indeed, one was not, Target having presumably completed the kind of cost-benefit analysis the Court declined to preclude.

The Verdugo family has suffered a terrible loss but the remarkable opinion would have been if this case had gone the other way. AEDs, interestingly, are still considered too expensive, too unusual, too difficult to operate, and too unpredictable in their performance to be considered standard rescue equipment  on the list to be owned and maintained by a business owner. But, then again — if you read the Verdugo case carefully — there may be nothing on that list.

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