Jabo v. Ymca of San Diego Cnty.

Decision Date28 September 2018
Docket NumberD072613
CourtCalifornia Court of Appeals Court of Appeals
Parties Khalda JABO et al., Plaintiffs and Appellants, v. YMCA OF SAN DIEGO COUNTY, Defendant and Respondent.

LiMandri & Jonna, Charles S. LiMandri, Paul M. Jonna and Jeffrey M. Trissell, Rancho Santa Fe, for Plaintiffs and Appellants.

Horvitz & Levy, David M. Axelrad, S. Thomas Todd, Burbank; Parker Straus and Andrew S. Meyers for Defendant and Respondent.


Defendant and respondent YMCA of San Diego County (Respondent or the YMCA) provides a number of automatic external defibrillators

(AEDs) on its premises, for the emergency use of its members, employees and users of the premises. ( Health & Saf. Code,1 § 1797.196, subd. (b) [regulatory scheme when AEDs are provided on premises].) Plaintiffs and appellants are the Jabo family, whose 43-year-old husband and father, Adeal Jabo (Jabo) died of sudden cardiac arrest on July 12, 2016, after playing soccer at an enclosed East County field owned by Respondent and regularly rented to a private organization of which Jabo was a member, the Over 40 Chaldean Soccer League of San Diego (the League).2 We are required to consider whether additional statutory or common law duties were owed by Respondent to ensure that its trained staff members utilize and apply AEDs under circumstances in which an adult is having an onsite medical emergency that appears to be sudden cardiacarrest

, while the adult is a permissive user of the facility whose group rented an outdoor portion of Respondent's sports facilities, a soccer field. (§ 104113 [duty of health studio to provide AED]; Civ. Code, § 1714.21, subd. (d) ["Good Samaritan" defense applicable to rendering of emergency care in use of AED at scene of emergency]; Verdugo v. Target Corp . (2014) 59 Cal.4th 312, 321, 173 Cal.Rptr.3d 662, 327 P.3d 774 ( Verdugo ).)

In Appellants' wrongful death complaint against Respondent, they seek damages on theories of ordinary and gross negligence arising from alleged violations of statutory and common law duties, based on Jabo's status as a League member using the facility's field. Appellants alleged that although one of Respondent's part-time employees was assigned to serve as scorekeeper for the League's games that evening, he was away from the field at the moment that Jabo collapsed and did not bring one of the five AED devices it had acquired to the field.3 Respondent did not dispute that for its own scheduled events, its policy was to have one of its staff members check out and bring an AED to the field. Respondent admits that its failure to schedule the League games on its regular AED checkout list was due to a staff mistake arising from the private rental status of the League.

After extensive litigation that included Respondent's filing of an indemnity cross-complaint based on a release of liability that Jabo had signed, the trial court ultimately granted a defense summary judgment on the complaint, finding that the essential element of duty could not be established by Appellants. ( Code Civ. Proc., § 437c.) The court dismissed Respondent's cross-complaint, finding that the release was unenforceable. As a whole, the ruling tracked the analysis in the leading case of Verdugo, supra, 59 Cal.4th 312, 316-317, 173 Cal.Rptr.3d 662, 327 P.3d 774, in which our Supreme Court held that the existing California statutory scheme for the acquisition and use of AEDs does not preclude the courts from making determinations, under common law, on whether additional duties of care to customers should be imposed on business owners regarding acquisition of AEDs, to be made available for use by trained staff members or others, when such medical emergencies arise. ( Id . at p. 336, fn. 18, 173 Cal.Rptr.3d 662, 327 P.3d 774 [acquisition includes duty to train, etc.].)

In Verdugo , supra , 59 Cal.4th 312, 173 Cal.Rptr.3d 662, 327 P.3d 774, the court engaged in traditional common law duty analysis for whether a retail business owes its patrons a duty of reasonable care to supply AEDs, in which " ‘the specific action or actions the plaintiff claims the defendant had a duty to m undertake,’ " ust be identified. ( Id. at p. 337, 173 Cal.Rptr.3d 662, 327 P.3d 774.) In considering whether such a common law duty should be recognized, "either in general or in particular circumstances," the courts should take into account existing California AED statutes, "insofar as such statutes bear on the relevant policy considerations that affect that determination." ( Id. at pp. 334-335, 173 Cal.Rptr.3d 662, 327 P.3d 774.) In Verdugo the court concluded that Target, as a retailer, did not incur such an obligation pursuant to section 1797.196 or Civil Code section 1714.21 to take precautionary measures, as distinguished from calling for medical assistance, in the absence of a showing of heightened foreseeability of the particular risk at issue. ( Verdugo, supra, at pp. 339, 342, 173 Cal.Rptr.3d 662, 327 P.3d 774.) In the course of its analysis, the court noted that different rules and particular obligations apply to "health (or fitness) studios," in the form of section 104113.4 ( Verdugo , supra , 59 Cal.4th at pp. 323-324 & fn. 10, 173 Cal.Rptr.3d 662, 327 P.3d 774 [medical facilities must be equipped with AEDs under separate regulatory requirements; "[h]ealth studios are currently the only nonmedical setting in which California statutes or regulations require that AEDs be provided"]; see fns. 17 & 18, post, on recent statutory additions in other contexts.)

We evaluate Appellants' challenge to the grant of summary judgment to Respondent in light of the analytical guidance provided by Verdugo , supra , 59 Cal.4th 312, 173 Cal.Rptr.3d 662, 327 P.3d 774. " ‘Duty, being a question of law, is particularly amenable to resolution by summary judgment.’ " ( Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618, 230 Cal.Rptr.3d 415, 413 P.3d 656 ( Regents of University of California ).) The issues of law presented here are limited to duty, not causation of injury. Appellants first contend Respondent was operating as a "health studio" in this instance and pursuant to section 104113, it came under specialized statutorily owed duties regarding not only the acquisition, but also the actual supply and application of AEDs. The trial court's ruling included a footnote in which the court accepted, for purposes of analysis, that Respondent "appears to be a ‘health studio’ as defined by section 104113[, subdivision] (h)." To the extent this comment amounts to a legal conclusion about the nature and extent of Respondent's activities with respect to Appellants, we disagree. Certainly, the record supports a conclusion that in some aspects of its activities, Respondent acts in the capacity of a health studio toward its membership, but in this case, it was renting a field to a nonmember league that did not choose to accept its membership and regulatory policies, and it did not bring itself within the statutory definitions applicable to health studios that are required to supply AEDs to ensure the safety of its members. Appellants do not show that as a matter of law, way as to impose a health studio's statutory AED installation and training duties upon it.

Next, for purposes of the more generic statutory requirements applicable to business owners, in this instance operators of sports facilities, we examine the terms of section 1797.196 and Civil Code section 1714.21. We conclude that as a matter of law, they do not impose the form of duty proposed by Appellants, to have a facility operator's employee apply and activate an AED at any location on the premises upon the occurrence of a medical emergency, even if the operator has acquired and made generally available such devices to promote the safety of its members and other patrons. The record does not support a conclusion that other duties exceeding the statutory requirements of section 1797.196 arose for the operator under these circumstances.

We next consider Appellants' alternative common law approaches for establishing specific duties that were owed under these circumstances. First, they argue Respondent undertook a specialized duty of care, applicable to its business patron Jabo, by making " ‘manifestation[s] of responsibility to third parties,’ " e.g. its members, that were sufficient to give rise to its duty to have its personnel bring to the site and then apply an AED, in the event a medical emergency occurred. ( Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612, 76 Cal.Rptr.2d 479, 957 P.2d 1313 ( Artiglio ).) We cannot agree that the manner in which Respondent undertook its duties as an operator of sports facilities served to increase the risks of Jabo's participation in League games. (See Knight v. Jewett (1992) 3 Cal.4th 296, 316-317, 11 Cal.Rptr.2d 2, 834 P.2d 696 ( Knight ) [facility owner has limited duty of due care not to increase a sports participant's risks over and above inherent risks of sport]; Rotolo v. San Jose Sports & Entertainment, LLC (2007) 151 Cal.App.4th 307, 335-336, 59 Cal.Rptr.3d 770 ( Rotolo ) [disapproved. in other part in Verdugo, supra, 59 Cal.4th at p. 334, fn. 15, 173 Cal.Rptr.3d 662, 327 P.3d 774 ].)5

In a further argument, Appellants present well-known common law duty factors concerning foreseeability and public policy considerations ( Rowland v. Christian (1968) 69 Cal.2d 108, 112, 70 Cal.Rptr. 97, 443 P.2d 561 ( Rowland ) ), to argue that Respondent incurred a common law duty of reasonable care to patrons who become ill on its premises, to provide them with first aid assistance that includes its staff members' deployment and appropriate use of an AED.6 In this closely regulated area that provides immunities to encourage the acquisition of AEDs to protect facilities and employees from liability in the event that they are used in an emergency, we cannot extend a common law duty, based on factors of public policy...

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