Atcovitz v. Gulph Mills Tennis Club, Inc.

• Decision Date: 20 December 2002
• Parties: Jerry ATCOVITZ and Roslyn Atcovitz, H/W, v. GULPH MILLS TENNIS CLUB, INC, JKST, Inc. and Gulph Mills/JKST Tennis Club, Inc., Lafayette Ambulance Rescue Squad I. Appeal of Gulph Mills Tennis Club, Inc., JKST, Inc. and Gulph Mills/JKST Tennis Club.
• Court: Pennsylvania Supreme Court

812 A.2d 1218

571 Pa. 580

Jerry ATCOVITZ and Roslyn Atcovitz, H/W, v. GULPH MILLS TENNIS CLUB, INC, JKST, Inc. and Gulph Mills/JKST Tennis Club, Inc., Lafayette Ambulance Rescue Squad I.

Appeal of Gulph Mills Tennis Club, Inc., JKST, Inc. and Gulph Mills/JKST Tennis Club.

Supreme Court of Pennsylvania.

Argued April 8, 2002.

Decided December 20, 2002.

Lucien R. Tharaud, Philadelphia, for Gulph Mills Tennis Club, Inc. Charles W. Craven, Philadelphia, for Gulph Mills/JKST Tennis Club, Inc.

Alfred Anthony Brown, J. Craig Currie, Philadelphia, for Roslyn Atcovitz, H/W Jerry Atcovitz.

Before ZAPPALA, C.J., and CAPPY, CASTILLE, NIGRO, NEWMAN, SAYLOR and EAKIN, JJ.

OPINION

Chief Justice ZAPPALA.

We granted allowance of appeal in this case to determine whether a tennis club owes a duty of care to its members to acquire and maintain an automated external defibrillator, hereinafter "AED," on its premises for emergency use.¹ For the reasons that follow, we hold that such clubs do not owe a duty to have an AED available on their premises.

On January 16, 1996, Jerry Atcovitz suffered a stroke, secondary to a heart attack, while playing tennis at the Gulph Mills Tennis Club.² Within a minute of his collapse, two tennis club members administered cardiopulmonary resuscitation and called for an ambulance. Approximately ten minutes later, emergency medical technicians arrived and administered a series of defibrillation shocks with an AED and transported Atcovitz to a hospital.³ Although he survived the incident, Atcovitz "sustained severe and permanent injuries, including anoxic encephalopathy with multiple permanent central nervous system disorders. He is no longer able to think or concentrate, is no longer able to walk or get out of bed unassisted, and requires assistance in virtually every aspect of his life." R. 42a-43a.

Appellees, Jerry Atcovitz and his wife, Roslyn, sued Gulph Mills for negligence in the Court of Common Pleas of Philadelphia County.⁴ Specifically, they claimed that, "had [Gulph Mills] possessed an AED device and used it on [Atcovitz] promptly, his injuries would have been significantly less and, therefore, that [Gulph Mills] is liable to him for damages." Trial Ct. Op. at 2. In its defense, Gulph Mills asserted that, at the time of Atcovitz's injury, its employees would not have been permitted by law to use an AED.

In an attempt to preclude Gulph Mills from asserting its defense, Appellees moved for partial summary judgment, which the trial court denied. Immediately prior to trial, however, Appellees orally moved for reconsideration of their motion. At the same time, Gulph Mills cross-moved for summary judgment.⁵ The trial court granted Gulph Mills's cross-motion for summary judgment and dismissed the case. The court based its grant of summary judgment on the Emergency Medical Services Act,⁶ hereinafter the "EMS Act," and the regulations issued pursuant thereto. The court concluded that, at the time of Atcovitz's injury, Gulph Mills's employees were legally prohibited from using an AED. Thus, the court held that Gulph Mills "cannot be held negligent for failure to use the device." Trial Ct. Op. at 4.

Appellees filed a timely appeal to the Superior Court, which reversed the trial court's order granting summary judgment. See Atcovitz v. Gulph Mills Tennis Club, Inc., 766 A.2d 1280, 1281 n. 2 (Pa.Super.2001). The court opined that the trial court's reliance on the EMS Act was inappropriate because it was designed for and aimed at the administration of emergency services by trained and licensed professionals. As the EMS Act did not contain any provision addressing emergency actions by untrained lay persons, i.e., Gulph Mills's employees, the court concluded that the trial court's grant of summary judgment could not be supported by reference to the EMS Act or its implementing regulations.

The court also addressed the effect of 42 Pa.C.S. § 8331.2, hereinafter the "AED Good Samaritan Act," which provides "Good Samaritan civil immunity" for use of an AED in certain instances. It specifically provides immunity for untrained individuals who, in good faith, use an AED in an emergency as an ordinary, reasonably prudent individual would do under the same or similar circumstances. Id. at § 8331.2(e). Although the AED Good Samaritan Act was enacted after Atcovitz's injuries, the court found that its passage evinced the Legislature's desire that use of AEDs not be restricted solely to trained professionals. Accordingly, the court held that the trial court erred as a matter of law in granting Gulph Mills's motion for summary judgment. See Atcovitz, 766 A.2d at 1282. Subsequently, Gulph Mills petitioned this Court for allowance of appeal, which we granted. See Atcovitz v. Gulph Mills Tennis Club, Inc., 566 Pa. 656, 782 A.2d 541 (2001) (table).

This Court's scope of review of an order granting summary judgment is plenary. Basile v. H & R Block, Inc., 563 Pa. 359, 761 A.2d 1115, 1118 (2000). Our standard of review is clear: the trial court's order will be reversed only where it is established that the court committed an error of law or clearly abused its discretion. Id. Summary judgment is appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Pa.R.Civ.P. 1035.2; see also Murphy v. Duquesne Univ. of the Holy Ghost, 565 Pa. 571, 777 A.2d 418, 429 (2001). The reviewing court must view the record in the light most favorable to the nonmoving party, resolving all doubts as to the existence of a genuine issue of material fact against the moving party. Basile, 761 A.2d at 1118. When the facts are so clear that reasonable minds cannot differ, a trial court may properly enter summary judgment. Id. (citing Cochran v. GAF Corp., 542 Pa. 210, 666 A.2d 245, 248 (1995)).

The elements necessary to plead an action in negligence are: (1) the existence of a duty or obligation recognized by law, requiring the actor to conform to a certain standard of conduct; (2) a failure on the part of the defendant to conform to that duty, or a breach thereof; (3) a causal connection between the defendant's breach and the resulting injury; and (4) actual loss or damage suffered by the complainant. Orner v. Mallick, 515 Pa. 132, 527 A.2d 521, 523 (1987) (citing Morena v. South Hills Health Sys., 501 Pa. 634, 462 A.2d 680, 684 n. 5 (1983)); see also W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 30 at 164 (5th ed.1984). Here, we must focus our analysis on the threshold element of duty.⁷ Only therein may we resolve the fundamental question of whether the plaintiff's interests are entitled to legal protection against the defendant's conduct.

"A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another." Law of Torts, supra, § 53 at 356. This Court has embraced an oft-quoted passage articulating the considerations that underlie the concept of common law duty:

These are shifting sands, and no fit foundation. There is a duty if the court says there is a duty; the law, like the Constitution, is what we make it. Duty is only a word with which we state our conclusion that there is or is not to be liability; it necessarily begs the essential question. When we find a duty, breach and damage, everything has been said. The word serves a useful purpose in directing attention to the obligation to be imposed upon the defendant, rather than the causal sequence of events; beyond that it serves none. In the decision whether or not there is a duty, many factors interplay: The hand of history, our ideas of morals and justice, the convenience of administration of the rule, and our social ideas as to where the loss should fall. In the end the court will decide whether there is a duty on the basis of the mores of the community, "always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind."

D. Prosser, Palsgraf Revisited, 52 Mich.L.Rev. 1, 15 (1953) (quoting Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99, 104 (N.Y.1928) (Andrews, J., dissenting)); Althaus ex rel. Althaus v. Cohen, 562 Pa. 547, 756 A.2d 1166, 1169 (2000); Sinn v. Burd, 486 Pa. 146, 404 A.2d 672, 681 (1979). Thus, the legal concept of duty is necessarily rooted in often amorphous public policy considerations, which may include our perception of history, morals, justice, and society. Althaus, 756 A.2d at 1169 (citing Gardner v. Consolidated Rail Corp., 524 Pa. 445, 573 A.2d 1016, 1020 (1990)).

In Althaus, this Court enunciated several discrete factors, derived from the aforementioned principles, that our courts are to balance in determining whether a common law duty of care exists: (1) the relationship between the parties; (2) the social utility of the actor's conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution. Althaus, 756 A.2d at 1169. Within this construct, we must resolve whether Gulph Mills owed a duty to Atcovitz to acquire and maintain an AED.

Here, our analysis turns upon the fifth Althaus factor, i.e., the overall public interest in the proposed solution. The Legislature's enactments and the ensuing regulations reveal that acquisition, maintenance, and use of an AED, along with AED training requirements, are highly regulated. Where our lawmakers have so thoroughly considered the statewide application and implications of a subject, this Court must refrain from imposing additional requirements upon that legislation.

Looking first to the EMS Act, the Legislature aspired to assure readily available and coordinated emergency medical services of the highest quality to the...