FIRST AID MANDATE DOES NOT INCLUDE DEFIBRILLATION, DIVIDED PANEL SAYS

September 8, 2004

Steven P. Garmisa
Hoey & Farina Attorney
garmisa@hoeyfarina.com
1-888-425-1212

Businesses owe a duty to provide first aid to injured customers, but in a case of first impression under Illinois law, the question was, Does this include a duty to provide a defibrillator in a health club?

Splitting 2-1, the Illinois Appellate Court ruled that a health club owed no duty to provide a defibrillator that could have been used by a staff paramedic to provide first aid to Terry Alan Salte, a patron who had a heart attack while exercising on a treadmill. Salte v. YMCA of Metropolitan Chicago Foundation, 2004 WL 1752943 (2d Dist., Aug. 2).

The Lake County Circuit Court dismissed the complaint, and the Appellate Court affirmed.

Here are some highlights of Justice Susan F. Hutchinson's majority opinion and Justice Thomas Callum's dissent (both with various omissions not noted in the quoted text):

"Our common law generally imposes no duty to rescue an injured stranger upon one who did not cause the injury in the first instance. A duty to take some affirmative action to aid another may arise, however, where a special relationship exists between the parties. The Restatement (Second) of Torts provides:

" '(1) A common carrier is under a duty to its passengers to take reasonable action
" '(a) to protect them against unreasonable risk of physical harm, and
" '(b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others....
" '(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.' Restatement (Second) of Torts, section 314A, at 118 (1965).

"The special relationship set forth in section 314A(3) of the Restatement includes the relationship of business owner and business invitee. Here, the business owner-business invitee relationship clearly existed between the parties. Accordingly, defendant owed Terry a duty to render first aid and to care for him.
"The question here is whether defendant's duty to aid Terry included a duty to have a defibrillator on its premises and to use such a defibrillator on him. The duty to render aid is a duty to use reasonable care under the circumstances.

"Comment f to section 314A of the Restatement elaborates on this requirement. It provides: 'The defendant is not required to take any action until he knows or has reason to know that the plaintiff is endangered, or is ill or injured. He is not required to take any action beyond that which is reasonable under the circumstances. In the case of an ill or injured person, he will seldom be required to do more than give such first aid as he reasonably can, and take reasonable steps to turn the sick man over to a physician, or to those who will look after him and see that medical assistance is obtained.'

"Our research has uncovered no Illinois case law addressing the question of a landowner's duty to have a defibrillator on its premises for use upon its business invitees in the event of an emergency. Additionally, we have discovered only one Illinois case that discusses a landowner's duty to aid a business invitee in a medical emergency as described in section 314A of the Restatement. See Parra [v. Tarasco, Inc., 230 Ill.App.3d 819 (1992)].

"In Parra, the plaintiff's decedent, a customer at the defendant's restaurant, brought a negligence action based on the defendant's failure to assist him while he was choking. The reviewing court held that the defendant could not be held liable for failing to aid the decedent because the Illinois Choke-Saving Methods Act eliminates liability in such situations.

"The reviewing court next held that, based on the Restatement, the defendant had a duty to call an ambulance. However, the reviewing court held that the dismissal of the plaintiff's complaint was proper because the plaintiff had failed to allege that the defendant's employees knew that the decedent was choking and/or refused to call, or delayed calling, for medical assistance.

"Courts in other jurisdictions have considered the question of a health club's duty to have a defibrillator on premises for emergency use upon its members and have held that no such duty exists. See Rutnik v. Colonie Center Court Club Inc., 249 A.D.2d 873, 672 N.Y.S.2d 451 (1998); Atcovitz v. Gulph Mills Tennis Club Inc., 571 Pa. 580, 812 A.2d 1218 (2002).

"In Atcovitz, the plaintiff was a member of a tennis club and had a heart attack while playing tennis at the club. The plaintiff sued the club, alleging that the club had a duty to acquire and maintain a defibrillator on its premises for emergency use. The Supreme Court of Pennsylvania held that the tennis club owed no such duty and affirmed the trial court's entry of summary judgment in favor of the club.

"A similar conclusion was reached by a New York reviewing court in Rutnik, where the plaintiff sued a racquetball club after suffering a heart attack while playing racquetball. The reviewing court rejected the plaintiff's contention that the club was negligent in failing to have a defibrillator present on premises for immediate emergency use.

"We also find instructive two other out-of-state cases that specifically address the scope of a landowner's duty to render first aid to its business invitees. In Lundy v. Adamar of New Jersey Inc., 34 F.3d 1173 (3d Cir. 1994), the plaintiff, a patron at the defendant's casino, suffered a cardiac arrest. Shortly thereafter, a nurse employed by the casino arrived, bringing with her an 'ambu-bag,' oxygen and an airway. She did not bring an intubation kit. Although some of the equipment normally found in an intubation kit was on the premises, the nurse did not bring it because she was not qualified to use it. The nurse proceeded to assist the plaintiff, using the ambu-bag and the oxygen. The plaintiff filed a negligence action, and the trial court granted summary judgment in favor of the defendant.

"On appeal, the plaintiff argued that the defendant breached its duty to provide medical care because it did not have an intubation kit on the premises or the personnel necessary to perform an intubation.

"The reviewing court affirmed. Relying on comment f to section 314A of the Restatement, the court held: 'Clearly, the duty recognized in 314A does not extend to providing all medical care that the carrier or innkeeper could reasonably foresee might be needed by a patron. Certainly, maintaining on a full-time basis the capability of performing an intubation goes far beyond any "first aid" contemplated by 314A.'

"The court further rejected the plaintiff's claims that, by having medical personnel on staff, the casino had voluntarily assumed a duty that it would not otherwise have had. The court relied upon the New Jersey's Good Samaritan Act, which immunized from civil damages the negligent acts or omissions of any person who in good faith rendered emergency aid to a victim at the scene of an emergency.

"In Baker v. Fenneman & Brown Properties LLC, 793 N.E.2d 1203 (Ind. App. 2003), the plaintiff fainted in the defendant's restaurant, sustaining injuries to his face and neck. He brought a negligence action, arguing that the defendant's employees failed to assist him. On appeal, the defendant argued that placing on businesses a duty to aid patrons was unreasonable because 'a business would be required to hire employees who were trained to diagnose and provide medical services.'

"The reviewing court disagreed. Relying on comment f to section 314A of the Restatement, the court held that the duty is only to exercise reasonable care under the circumstances. As an example, the court reasoned that a high school student 'would not be expected to provide the type of first aid an emergency room doctor would provide, as such an expectation would not be "reasonable." '
"Based upon comment f of section 314A of the Restatement and the authorities discussed above," Hutchinson's majority opinion concluded, "we hold that defendant did not have a duty to have a defibrillator on its premises and to use the defibrillator on Terry.
"Defendant's duty was only to provide to its business invitee the level of aid that was reasonable under the circumstances. This simply means that defendant and its staff were required to render whatever first aid that, under the circumstances, they were reasonably capable of providing to Terry.

"This duty, however, did not require defendant to provide, or to be prepared to provide, all medical care that it could reasonably foresee might be needed by a patron. Accordingly, we hold that defendant did not have a duty to have a defibrillator on its premises and that its staff did not have a duty to defibrillate Terry," the majority ruled.

"Because I conclude that, when viewing the allegations in plaintiffs' complaint in the light most favorable to plaintiffs," Callum explained, "a reasonable jury could find that defendant breached its duty to plaintiffs, I respectfully dissent.

"Whether a duty exists is a question of law. However, the reasonableness of the care exercised by the defendant is generally a question of fact and becomes a matter of law only where reasonable people could not disagree as to the conclusions resulting from the facts.

"I disagree with the majority's and defendant's characterization of the issue as solely a legal question of whether defendant had a duty to provide a defibrillator. Defendant's duty, as it acknowledges, was to render reasonable first aid until professional assistance arrived. Whether reasonable assistance encompasses the use of a defibrillator by defendant's staff paramedic is, I believe, a factual question. I further believe that a reasonable jury could find that defendant did not provide reasonable first aid to Terry when it failed to equip its paramedic with a defibrillator to use on Terry.

"The cases relied upon by the majority do not support its conclusion. Although the majority is correct in stating that the court in Atcovitz held that a tennis club owed no duty to its member to acquire and maintain a defibrillator on its premises, the majority fails to point out that the court based its holding on a Pennsylvania statute that regulated the maintenance and use of defibrillators.

"Rutnik is also factually distinguishable, as the plaintiff in that case was injured while participating in a racquetball tournament sponsored by one of the defendants. The court held that the plaintiff assumed the risk of injury inherent when participating in a strenuous sport.

"Finally, I find the majority's reliance on Lundy to also be misplaced. In that case, the court stated that the duty recognized in Restatement section 314A, as the majority here points out, did not extend to providing all medical care that the carrier or innkeeper could reasonably foresee might be needed by a patron. I do not quarrel with this interpretation.

"The majority here fails to explain the Lundy court's reasoning. In that case, the casino's nurse had 15 years of experience, but, as the court pointed out, the uncontradicted evidence was that she was not competent to perform an intubation.

"The court stated: 'It necessarily follows that the duty which the [plaintiffs] insist the New Jersey Supreme Court would recognize in this case would require casinos to provide a full-time on-site staff physician. Certainly, maintaining on a full-time basis the capability of performing an intubation goes far beyond any "first aid" contemplated by section 314A.'

"In Lundy, discovery had been completed when the defendant casino filed its motion for summary judgment. The Lundy court had before it the uncontroverted fact that a nurse with 15 years' experience was not trained to perform an intubation.

"Here, the parties had not commenced discovery. Plaintiffs' complaint alleged that defendant had on its staff a paramedic. Reading this allegation in the light most favorable to plaintiffs, we can infer that defendant had hired its employee to work for it as a paramedic. The key issue here is plaintiffs' allegation that defendant had a duty to equip its paramedic with a defibrillator. Viewing plaintiffs' complaint in the light most favorable to them, I believe that a reasonable jury could find that defendant had a duty to equip its paramedic with a defibrillator.

"It is conceivable that a reasonable jury would find significant the presence of a staff member who was employed as a paramedic, that a defibrillator is necessary equipment for such a professional, and that defendant should have equipped its paramedic with such a device. Indeed, the majority concedes that a jury could find that defendant did not provide reasonable first aid to Terry when it failed to use a defibrillator on him. However, it equates such a finding, without explanation, to a finding that defendant must provide all reasonably foreseeable medical care. In my mind, these findings are not identical.

"For the reasons stated above, I would reverse the trial court's dismissal of plaintiffs' complaint."

Back to Trial Notebook Main page