Verdugo v. Target Corp.

• Decision Date: 11 December 2012
• Docket Number: No. 10–57008.,10–57008.
• Citation: 704 F.3d 1044
• Parties: Michael VERDUGO, brother of Decedent; Rosemary Verdugo, mother, successor and heir of Mary Ann Verdugo, Decedent, Plaintiffs–Appellants, v. TARGET CORPORATION, a Minnesota corporation, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

704 F.3d 1044

Michael VERDUGO, brother of Decedent; Rosemary Verdugo, mother, successor and heir of Mary Ann Verdugo, Decedent, Plaintiffs–Appellants,

v.TARGET CORPORATION, a Minnesota corporation, Defendant–Appellee.

No. 10–57008.

United States Court of Appeals,Ninth Circuit.

Dec. 11, 2012.

Robert A. Roth, Tarkington, O'Neill, Barrack & Chong, Berkeley, CA; David G. Eisenstein, Law Offices of David G. Eisenstein, P.C., Carlsbad, CA for Plaintiffs–Appellants.

Benjamin R. Trachtman and Ryan M. Craig, Trachtman & Trachtman, Mission Viejo, CA for Defendant–Appellee.

D.C. No. 2:10–cv–06930–ODW–AJW, Central District of California, Los Angeles.

Before: HARRY PREGERSON, SUSAN P. GRABER, and MARSHA S. BERZON, Circuit Judges.

Order; Concurrence by Judge GRABER; Dissent by Judge PREGERSON.

ORDER

Pursuant to Rule 8.548 of the California Rules of Court, we request the California Supreme Court to decide the question of California law set forth in Part II of this order. This case is withdrawn from submission until further order of this court, and all further proceedings in this court are stayed pending final action by the California Supreme Court.

There is no controlling precedent resolving the question we set forth below. The answer will determine the outcome of the present appeal. Our phrasing of the question below is not meant to restrict the California Supreme Court's consideration of the issue involved. We agree to follow the answer provided by the California Supreme Court.

ICAPTION AND COUNSEL

Michael and Rosemary Verdugo are considered the petitioners in this request because they appeal from the district court's adverse ruling on the specified issue. The caption of this case is:

MICHAEL VERDUGO, brother of Decedent; ROSEMARY VERDUGO, mother, successor and heir of Mary Ann Verdugo, Decedent, Plaintiffs–Appellants,

v.

TARGET CORPORATION, a Minnesota corporation, Defendant–Appellee.

The names and addresses of counsel are:

For the Verdugos: Robert A. Roth, Tarkington, O'Neill, Barrack & Chong, Berkeley, CA; David Griffith Eisenstein, Law Offices of David G. Eisenstein, P.C., Carlsbad, CA.

For Target Corporation: Benjamin R. Trachtman, Ryan M. Craig, Trachtman & Trachtman, Mission Viejo, CA.

IIQUESTION OF LAW

The question of law we wish to be answered is:

In what circumstances, if ever, does the common law duty of a commercial property owner to provide emergency first aid to invitees require the availability of an Automatic External Defibrillator (“AED”) for cases of sudden cardiac arrest?

IIISTATEMENT OF FACTS

Mary Ann Verdugo, age 49, was shopping at a Target store in Pico Rivera, California, with her mother and brother on August 31, 2008, when she suffered sudden cardiac arrest and collapsed. In response to a 911 call, paramedics were dispatched from a Los Angeles County Fire Department station nearby. It took the paramedics several minutes to reach the store, and several more minutes to reach Verdugo inside. By the time the paramedics arrived, Verdugo was dead and could not be resuscitated. Target did not have an AED in its store.

Nearly 300,000 Americans suffer from sudden cardiac arrest every year, and only eight percent survive. Sudden cardiac arrest is caused by a problem with the heart's electrical impulses, causing it to stop pumping blood. Unlike a myocardial infarction (a heart attack), sudden cardiac arrest often strikes with no prior symptoms and can strike a heart that is otherwise healthy. A shock from an AED can restart a heart by correcting the misfiring of its electrical impulses. To be effective, the AED must be used immediately. The chance of surviving sudden cardiac arrest decreases by 10 percent for every minute that passes before the heart's rhythm is restored. Cardiac Arrest Survival Act of 2000, Pub.L. No. 106–505, § 402(5), 114 Stat. 2314. It is estimated that 30 percent of those who experience cardiac arrest could be saved if an AED were used immediately. Id. § 402(4).

Target sells AEDs on its website for approximately $1,200. AEDs can be used by the untrained, as the devices provide oral instructions to users and “are designed not to allow a user to administer a shock until after the device has analyzed a victim's heart rhythm and determined that an electric shock is required.” Id. § 402(8).

Verdugo's mother and brother filed a wrongful death action against Target in California Superior Court, and Target removed to federal court. Target then filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), which the district court granted, holding that Target had no duty to acquire and install an AED. The Verdugos appealed, arguing that a duty does exist under California common law and, in the alternative, asking that the question be certified to the California Supreme Court. Target opposed certification.

IVSTATEMENT OF REASONS FOR THE REQUEST

The resolution of the question presented by this case implicates strong state interests and could have wide-reaching effects in the state of California. The Verdugos seek the announcement of a common-law rule that would require many retail establishments across the state to acquire AEDs. Target suggests that such a rule would burden it and many companies like it, that California common law does not support such a rule, and that the California AED statutes preclude the imposition of such a common law rule. More broadly, Target maintains that California common law does not support any requirement that property owners provide first aid to invitees beyond calling 911 to summon assistance. As a matter of comity, we consider the California Supreme Court better positioned to address these major questions of California tort law than this court. See Klein v. United States, 537 F.3d 1027, 1030 (9th Cir.2008) (order).

A

Both parties agree that there is no statutory duty in California requiring a business like Target to obtain a defibrillator. The California legislature has enacted a series of statutes governing AEDs that are acquired by building owners and managers. SeeCal. Health & Safety Code § 1797.196 (West 2012); Cal. Civ.Code § 1714.21(d) (West 2012) (providing immunity from civil liability for those who acquire AEDs as long as they comply with specified maintenance, testing, and notice requirements). These statutes “reflect legislative policy to encourage the availability of AEDs by providing immunity from liability for those who acquire the devices.” Rotolo v. San Jose Sports & Entm't, LLC, 151 Cal.App.4th 307, 314, 59 Cal.Rptr.3d 770 (2007).

At the same time, the legislature has declared that “[n]othing in this section ... may be construed to require a building owner or a building manager to acquire and have installed an AED in any building.” Cal. Health & Safety Code § 1797.196(f). Whether the AED statutes as a whole, including § 1797.196(f), preclude the existence of a common law duty to acquire an AED is one of the issues in this case. See Rotolo, 151 Cal.App.4th at 325, 59 Cal.Rptr.3d 770.

Target argues, and the district court held, that the statutory scheme has “occupied the field,” and that imposing a common law duty here would “defeat the underlying legislative purpose.” Id. at 314, 59 Cal.Rptr.3d 770. For this proposition, Target relies largely on Rotolo, which held that where a hockey rink had acquired an AED but failed to notify invitees of its existence and location, and a hockey player died as a result, the statutory scheme precluded common law liability where there had been compliance with the statutory requirements for immunity. Id. at 322–23, 59 Cal.Rptr.3d 770.

The Verdugos maintain, to the contrary, that the thrust of California's legislative scheme regarding AEDs is to encourage their availability by providing immunity for those who acquire them and comply with training and maintenance requirements. Id. at 319–20, 59 Cal.Rptr.3d 770. According to the Verdugos, the statutes deal with situations in which business owners do acquire AEDs and do not apply to the situation presented here, where a business owner has not acquired an AED. Imposing a common law duty to acquire an AED in these circumstances, the Verdugos maintain, would not frustrate the legislature's desire to promote the acquisition of AEDs by providing a safe harbor from liability for those who install and maintain them properly, as any business required to install an AED under a common law tort theory would be entitled to statutory immunity. On this analysis, the existence of California's statutory scheme is not determinative as to whether a common law duty exists.

B

If the court were to accept the Verdugos' view of the relationship between the AED statutes and California common law, then the pertinent question would become whether Target Stores had a duty under California common law to have an AED available. There is under California law a “special relationship” between business owners and their invitees, which creates a duty to provide “ ‘assistance [to] ... customers who become ill or need medical attention.’ ” Delgado v. Trax Bar & Grill, 36 Cal.4th 224, 241, 30 Cal.Rptr.3d 145, 113 P.3d 1159 (2005) (alteration in original) (quoting Breaux v. Gino's, Inc., 153 Cal.App.3d 379, 382, 200 Cal.Rptr. 260 (1984)). Beyond this basic principle, California's invitee precedents are in some tension as they pertain to the issue in this case.

Target suggests, first, that the duty to provide medical assistance to invitees is uniformly discharged simply by calling 911, relying for this proposition on Breaux. In Breaux, the Court of Appeal held that a restaurant had fulfilled its duty to a choking patron by summoning emergency services and was not required to provide further assistance. 153 Cal.App.3d at 381–82, 200 Cal.Rptr. 260. The Verdugos point out, however, that Breaux relied in its reasoning on a statutory scheme similar to the one implicated in Rotolo: California law required the posting in restaurants of first aid instructions for choking victims and...