Verdugo v. Target Corp.

• Decision Date: 23 June 2014
• Docket Number: No. S207313.,S207313.
• Parties: Michael VERDUGO et al., Plaintiffs and Appellants, v. TARGET CORPORATION, Defendant and Respondent.
• Court: California Supreme Court

59 Cal.4th 312

327 P.3d 774

173 Cal.Rptr.3d 662

Michael VERDUGO et al., Plaintiffs and Appellants,

v.TARGET CORPORATION, Defendant and Respondent.

No. S207313.

Supreme Court of California

June 23, 2014.

Tarkington, O'Neill, Barrack & Chong, Robert A. Roth, San Francisco; Law Offices of David G. Eisenstein and David G. Eisenstein, San Diego, for Plaintiffs and Appellants.

Greene Broillet & Wheeler, Santa Monica, Bruce A. Broillet, Alan Van Gelder ; Heimberg Barr and Marsha Barr–Fernandez, Los Angeles, for Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiffs and Appellants.

Mary M. Newman for Sudden Cardiac Arrest Foundation as Amicus Curiae on behalf of Plaintiffs and Appellants.

Law Offices of Charles S. Roseman & Associates, San Diego, Charles S. Roseman and Richard D. Prager for Bobbi Cohen, Ken Anderson, Anthony Bates Foundation, KEN Heart Foundation and Sarah Friend Heart Foundation as Amici Curiae on behalf of Plaintiffs and Appellants.

Mayer Brown, Palo Alto, Richard Caldarone, Donald M. Falk and Foster C. Johnson for Defendant and Respondent.

Luke Wake and Deborah J. La Fetra, Sacramento, for National Federation of Independent Business, Small Business Legal Center and Pacific Legal Foundation as Amici Curiae on behalf of Defendant and Respondent.

Jackson Lewis, Dylan B. Carp, San Francisco, and Sherry L. Swieca, Los Angeles, for Retail Litigation Center, Inc., and California Retailers Association as Amici Curiae on behalf of Defendant and Respondent.

Erika C. Frank; and Fred J. Hiestand, Sacramento, for The California Chamber of Commerce and The Civil Justice Association of California as Amici Curiae on behalf of Defendant and Respondent.

Munger Tolles & Olson, Los Angeles, Fred A. Rowley, Jr., and John P. Mittelbach for The Chamber of Commerce of the United States of American and The American Tort Reform Association as Amici Curiae on behalf of Defendant and Respondent.

CANTIL–SAKAUYE, C.J.

At the request of a three-judge panel of the United States Court of Appeals for the Ninth Circuit, we agreed to address a question of state law that is potentially determinative of an appeal now pending before that federal appellate court. ( Cal. Rules of Court, rule 8.548.) The question, as reformulated and narrowed to conform to the facts of the pending appeal, is whether, under California law, the common law duty of reasonable care that defendant Target Corporation (Target) owes to its business customers includes an obligation to obtain and make available on its business premises an automated (or automatic) external defibrillator

(AED) for use in a medical emergency.¹

Target maintains that recognition of a common law duty on its part to acquire and make available an AED for the use of its customers is inappropriate for two reasons. First, Target asserts that existing California statutes relating to the acquisition and use of AEDs preclude recognition of such a common law duty, either because one of the statutory provisions explicitly bars such a requirement or because the AED statutes as a whole " occupy the field" of AED regulation and thus implicitly foreclose California courts from recognizing such a common law duty. Second, Target argues that even if existing California AED statutes do not prohibit recognition of such a common law duty, generally applicable principles relating to the scope of a business's common law duty to its customers, set forth in governing California decisions, do not support recognition of such a duty.

For the reasons discussed hereafter, we conclude that existing California statutes relating to the acquisition and use of AEDs do not preclude this court from determining whether such a duty should be recognized under California common law, but that generally applicable principles and limitations regarding the existence of a common law duty that are embodied in past California decisions do not support recognition of such a common law duty. Accordingly, we conclude that, under California law, Target's common law duty of care to its customers does not include a duty to acquire and make available an AED for use in a medical emergency.

I. Summary of Facts and Federal Court Proceedings

On August 31, 2008, Mary Ann Verdugo was shopping at a large Target department store in Pico Rivera, California, with her mother and brother when she suffered a sudden cardiac arrest

and collapsed. In response to a 911 call, paramedics were dispatched from a nearby fire station. It took the paramedics several minutes to reach the store and a few additional minutes to reach Verdugo inside the store. The paramedics attempted to revive Verdugo but were unable to do so; Verdugo was 49 years of age at the time of her death. Target did not have an AED in its store.

After the incident, Verdugo's mother and brother (hereafter plaintiffs) filed the underlying lawsuit against Target, maintaining that Target breached the duty of care that it owed to Verdugo, a business customer, by failing to have on hand within its department store an AED for use in a medical emergency.

Plaintiffs' first amended complaint alleged that an AED was an essential element of the life-saving first aid that Target was assertedly obligated to provide to its patrons. The complaint contended that in view of the large number of persons (300,000) in this country who suffer an unanticipated sudden cardiac arrest

each year, and the large number of customers who shop in Target's department stores, it was reasonably foreseeable that a patron might suffer such an attack in its store, and that because of the size of the store Target should have known that it would take emergency medical personnel many minutes to reach a sudden cardiac arrest victim, making an onsite AED a medical necessity. Further, the complaint noted that AEDs are relatively inexpensive and that, in fact, Target itself sold AEDs over the Internet for approximately $1,200. The complaint maintained that "[t]he inexpensive availability of AEDs and their ease of use with even minimal or no advance training have led to on-site CPR [cardiopulmonary resuscitation ] and AED assistance to now be an expected part of first aid response." Asserting that Target's failure to provide an AED was a substantial cause of Verdugo's death, plaintiffs sought to recover damages from Target.

Plaintiffs filed their initial complaint in the Los Angeles County Superior Court, but Target removed the proceeding to federal district court. Thereafter, Target filed a motion to dismiss the matter on the ground that the complaint failed to state a cause of action. ( Fed. Rules Civ. Proc., rule 12(b)(6), 28 U.S.C.) After briefing, the federal district court granted Target's motion, concluding that Target had no duty to acquire and make available an AED for the use of its customers. Plaintiffs appealed to the Ninth Circuit Court of Appeals, arguing that the federal appellate court should recognize that a duty to provide an AED does exist under California common law, or, in the alternative, asking that court to certify to this court the question of state law regarding the existence of such a duty under California common law. Target opposed certification, but, after oral argument, the three-judge panel, by a two-to-one vote, determined that California precedents do not provide sufficient guidance to answer the question of California tort law presented by the case and asked this court to address the issue. ( Verdugo v. Target Corp., supra, 704 F.3d at p. 1045.)²

In response to the Ninth Circuit's request, we agreed to address the state law issue presented by the pending appeal. We have received extensive briefing in this matter, both by the parties and by numerous amici curiae, some supporting plaintiffs and others supporting defendant Target.

II. Brief Overview of Sudden Cardiac Arrest

and AEDs

To place the issue before us in perspective, it is useful at the outset to briefly describe the nature and scope of the health problem posed by sudden cardiac arrest

and the development of AEDs as one important tool for addressing this problem. Thereafter, we describe the current California statutes relating to AEDs. (Post, pt. III.)

In a 2013 publication, the American Heart Association stated that "Cardiac arrest

is a leading cause of death in the United States. Each year, emergency medical services (EMS) treats about 360,000 victims of cardiac arrest before they reach the hospital. Less than 10 percent of those victims survive. Cardiac arrest can happen to anyone at any time...." (Amer. Heart Assn., Implementing an AED Program (July 2013) p. 3 [corporate training] [as of OPN FILE DATE].) The publication explained: "Cardiac arrest is the abrupt loss of heart function in a person who may or may not have heart disease. The time and mode of death are unexpected. Cardiac arrest occurs instantly or shortly after symptoms appear. [¶] Most cardiac arrests are due to abnormal heart rhythms called arrhythmias. A common arrhythmia is ventricular fibrillation, in which the heart's electrical impulses suddenly become chaotic and ineffective. Blood flow to the brain stops abruptly; the victim then collapses and quickly loses consciousness. Death usually follows unless a normal heart rhythm is restored within minutes." (Ibid. )

The publication further explained: "Defibrillation

is a process in which an electronic device gives an electrical shock to the heart. Defibrillation stops ventricular fibrillation by using an electrical shock and allows the return of a normal heart rhythm. A victim's chance of survival decreases by 7 to 10 percent for every minute that passes without defibrillation." (Amer. Heart Assn., Implementing an AED Program, supra, at p. 4.)

Beginning in the 1990s, small portable defibrillators

, called automated or automatic external defibrillators, became commercially available. As described in another American Heart Association publication, "AEDs are highly accurate, user-friendly computerized devices with voice and audio...