Rotolo v. San Jose Sports, LLC

• Decision Date: 24 May 2007
• Docket Number: No. H029936.,H029936.
• Citation: 59 Cal.Rptr.3d 770,151 Cal.App.4th 307
• Court: California Court of Appeals Court of Appeals
• Parties: Christine ROTOLO et al., Plaintiffs and Appellants, v. SAN JOSE SPORTS AND ENTERTAINMENT, LLC, et al., Defendants and Respondents.

59 Cal.Rptr.3d 770

151 Cal.App.4th 307

Christine ROTOLO et al., Plaintiffs and Appellants, v. SAN JOSE SPORTS AND ENTERTAINMENT, LLC, et al., Defendants and Respondents.

No. H029936.

Court of Appeal, Sixth District.

May 24, 2007.

Paul D. Fogel, Raymond A. Cardozo, Jayne E. Fleming, Reed Smith LLP, Oakland, Peter J. Hinton, Elise R. Sanguinetti, Hinton, Alfert & Sumner, Walnut Creek, for Appellants Christine Rotolo, et al.

Paul E. Stephan, Jennifer J. Capabianco, Selman Breitman LLP, San Francisco, for Respondents San Jose Sports and Entertainment, LLC, et al.

BAMATTRE-MANOUKIAN, Acting P.J.

INTRODUCTION

In this wrongful death action, the parents of a teenager who died as a result of `sudden cardiac arrest while participating in an ice hockey game sued the operators of the ice hockey facility. They alleged that defendants had a duty to notify users of the facility of the existence and location of an automatic external defibrillator (AED) at the facility. They claimed that the timely use of such a device would have greatly increased the teenager's chances of survival.

The trial court sustained defendants' demurrer to plaintiffs' third amended complaint. The trial court noted that the Legislature had set forth a detailed statutory scheme concerning the acquisition and use of AEDs, which "did not include any requirement to notify business invitees of the existence or location of AEDs on a premises." The court further found no common law duty under the facts of this case, beyond a duty to timely summon emergency services, which defendants fulfilled. The court found that plaintiffs could not state a cause of action under the facts as pleaded, and denied leave to amend. Judgment was entered in favor of defendants, and plaintiffs appeal.

On appeal, appellants contend the court erred in finding that respondents did not have a legal duty to develop an emergency plan that included informing league officials and coaches of on-site defibrillators. They contend that the imposition of such a duty is consistent with the statutes governing the acquisition and use of AEDs and is a natural evolution of the common law. The duty of notice is a minimal burden, they argue, considering the weighty consequence that lives could be saved.. Appellants' argument is a particularly compelling one in the circumstances of this case, where the life-saving device was installed nearby throughout the attempted resuscitation of the victim, but no one was aware that it was there and available for use. Our review of the law, however, leads us to the conclusion that the duty appellants seek to impose upon respondents is not supported either by the statutes or by the principles developed in California common law.

First, the Legislature has occupied the field by enacting a number of detailed and comprehensive statutes governing the acquisition and use of AEDs. (Civ.Code, § 1714.21; Health & Saf.Code, § 1797.196; Gov.Code, § 8455.) These statutes reflect legislative policy to encourage the availability of AEDs by providing immunity from liability for those who acquire the devices, when they are used in an attempt to save a life. As we discuss further below, the Legislature has made clear that building owners and managers have no duty in the first instance to acquire and install an AED. (Health & Saf.Code, § 1797.196, subd. (f).) Those who do install AEDs in their buildings will not be liable for damages resulting from the rendering of emergency care with an AED, so long as certain requirements are met, including maintenance, testing, posting and notice. (Health & Saf.Code, § 1797.196, subd. (b)(2)(A), (2)(B), (3) & (4).) The notice that is required is specifically limited to tenants of the building where the AED is located. (Health & Saf.Code, § 1797.196, subd. (b)(3).) The only other notice requirement set forth in these statutes is that the person or entity that supplies an AED must notify the local emergency services agency of its location. (Health & Saf.Code, § 1797.196, subd. (c)(1).) Nothing in these statutes requires that a building owner or manager give notice to particular members of the public expected to use the building. Furthermore, we believe the imposition of such duties that are not clearly outlined in the statutes would tend to discourage, rather than to encourage, the voluntary acquisition of AEDs, and would thus defeat the underlying legislative purpose of promoting the widespread use of these devices.

Second, under the common law of this state, the duty of care of a landlord, based on the special relationship to tenants and invitees, has never been extended to impose an affirmative duty such as appellants seek to impose here, to give notice to prospective invitees of the existence and location of a medical device. As we shall explain, a landlord has a duty to maintain the premises in a reasonably safe condition and may have a duty to prevent foreseeable harm, such as a criminal attack by a third party, from occurring to those using the premises, or to take certain steps to come to the aid of an invitee in the face of imminent or ongoing danger. In regard to the extent of the duty of a landlord or business proprietor to come to the aid of a sick or injured invitee, courts have found that sound policy limits the extent of this duty to promptly summoning emergency services. We have found no precedent in the cases discussing the special relationship of a property owner to those using the property that supports the imposition of a duty to provide advance notice to invitees to the property that certain lifesaving equipment is available.

Appellants contend that operators of sports facilities in particular should be duty bound to take affirmative steps to avoid foreseeable injury to participants using the facilities. As we shall discuss, special rules have developed in the law in this area. In the context of sports facilities, those who choose to participate in the sport assume the primary risk of injury inherent in the sport. As to the owner or manager of the facility, courts have found a limited duty to use due care "not to increase the risks to a participant over and above those inherent in the sport." (Knight v. Jewett (1992) 3 Cal.4th 296, 316, 11 Cal.Rptr.2d 2, 834 P.2d 696.) Respondents in this case did nothing to increase the risk of an injury that is inherent in the sport.

Appellants also argue that a duty arises in this case because respondents voluntarily acquired an AED; thus, they were duty bound to make the device available for use in an emergency by invitees using the property. But this theory, which is akin to a doctrine known as the "negligent undertaking" doctrine, does not apply in the circumstances here because the two elements underlying the doctrine are not present: respondents' acquisition of an AED did not increase the risk of harm to those using the facility, and the users of the property did not rely to their detriment on respondents' undertaking. (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 249, fn. 28, 30 Cal.Rptr.3d 145, 113 P.3d 1159 (Delgado).)

Finally, we have carefully considered the various factors that contribute to the policy decision whether a duty should be imposed in particular circumstances, and what the scope of that duty should be. Appellants emphasize that the duty they seek to impose is a minimal one and would contribute greatly to preventing the harm that occurred here by making it more likely that the AED would be used in an appropriate case. We agree that it would be advisable and helpful for operators of sports facilities to develop an emergency plan that includes notice to users of the facility of the availability of life-saving devices on the premises. However, it would be a significant departure from settled law to create a legal duty that is nowhere defined in the statutes or in common law, and to impose such a duty on countless owners and managers of sports facilities throughout this state. And the goal of encouraging the acquisition and use of AEDs would not necessarily be furthered if those who have voluntarily acquired the devices were exposed to liability for breaching duties of care beyond those described in the law. If that is to be the policy of this state, we believe it should be articulated by the Legislature or by the California Supreme Court.

For all of these reasons we decline to impose a legal duty where the Legislature has not imposed a duty and where the duty appellants propose is not supported by controlling precedent in the body of common law. Because of the importance of the issues raised by this case, we encourage appellants to seek redress in the Legislature. Our review, however, is limited by doctrines governing our role as an intermediate appellate court. We may not sit as a super-legislature, particularly where our lawmakers have indicated an intent to occupy the field as to the use and regulation of AEDs. And, under the principles of stare decisis, we must defer to California Supreme Court authority defining the limits of duty imposed upon landowners or business operators. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.) We therefore affirm the judgment.

BACKGROUND

Appellants are the mother and father of the decedent, Nicholas Rotolo. Respondents are three business entities: San Jose Sports and Entertainment, LLC; Silicon Valley Sports and Entertainment, LLC; and San Jose Arena Management, LLC. Respondents operate and control a facility known as Logitech Ice at San Jose (Logitech Ice), which is an ice hockey facility open to the general public and youth hockey clubs as well as professional teams.

On February 5, 2004, 17-year-old Nicholas Rotolo was participating in a hockey tournament game on the south rink at * Logitech Ice. During the game, he experienced sudden cardiac arrest and collapsed on the ice. Two event bystanders, both of whom were mothers of other participants in the...