Chief Justice Tani Cantil-Sakauye, California Supreme Court (Jason Doiy)
SAN FRANCISCO — Technology exists that can save people from sudden cardiac arrest. So must places of public accommodation such as a big-box retailer keep $1,200 defibrillators on the premises in case a customer needs one?
The question provoked mixed views at the Ninth Circuit, but on Tuesday the California Supreme Court sounded ready to answer with a resounding no.
Not a single justice appeared willing to adopt a common-law rule in California that would allow a cardiac-arrest victim’s survivors to sue Target Corp. for having failed to keep a defibrillator on the premises.
“The Legislature studied this. They looked at it. They made a policy call” and didn’t impose any requirement on retailers, Chief Justice Tani Cantil-Sakauye said.
The Legislature’s failure to act isn’t binding on the court, argued plaintiff cocounsel David Eisenstein of Carlsbad. “That’s one of the functions of the evolving common law,” he said.
He and Robert Roth of San Francisco’s Heath-Newton represent the family of Mary Ann Verdugo, a 49-year-old shopper who went into cardiac arrest at a Southern California Target store. Employees called 911, but by the time paramedics arrived and found Verdugo inside the store, she had died.
The family wants to argue to a jury that Target should have been better prepared, by keeping an automatic external defibrillator on the premises. With 300,000 cases of cardiac arrest each year, it’s entirely foreseeable that some will happen in Target stores, it argues. The U.S. Court of Appeals for the Ninth Circuit sent the case to the California Supreme Court, with Judge Harry Pregerson supporting the plaintiffs’ theory and Judge Susan Graber expressing skepticism.
None of the justices appeared to be on the Verdugos’ side Tuesday. All seemed leery of a rule that could require every California business to own an AED and train employees on its use. Roth argued that AEDs are so simple and automated that a child can apply them. Target, in particular, should have foreseen the critical importance because it has sold the devices, he added.
That didn’t sound like enough of a limiting principle to Justice Goodwin Liu. “Target sells a whole bunch of things—that’s why we go to Target,” he said. “If we adopted your rule, it seems to me they might stop selling the devices.”
Mayer Brown partner Donald Falk argued for Target that the Legislature has required only narrow, specific classes of businesses such as fitness centers to make AEDs available, and left retailers out of it. “The Legislature could do it, but it hasn’t done it, and that’s the way it should stay,” he said.
Tuesday’s session was the court’s first since the retirement of Justice Joyce Kennard in April, leading to a seating shuffle on the bench. The court’s three most senior justices—Marvin Baxter, Kathryn Mickle Werdegar and Ming Chin—moved for the first time in 13 years, with Baxter and Werdegar now seated closest to the chief justice.
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