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By Recreation Law Rec-law@recreation-law.com James H. Moss

Limones, Sr., et al., v. School District of Lee County et al., 161 So. 3d 384; 2015 Fla. LEXIS 625; 40 Fla. L. Weekly S 182

Posted: December 18, 2016 | Author: Recreation Law | Filed under: First Aid, Florida, Medical, Sports | Tags: #Soccer, AED, Automatic External Defibrillator, High School Team | Leave a comment

Limones, Sr., et al., v. School District of Lee County et al., 161 So. 3d 384; 2015 Fla. LEXIS 625; 40 Fla. L. Weekly S 182

Abel Limones, Sr., et al., Petitioners, vs. School District of Lee County et al., Respondents.

No. SC13-932

SUPREME COURT OF FLORIDA

161 So. 3d 384; 2015 Fla. LEXIS 625; 40 Fla. L. Weekly S 182

April 2, 2015, Decided

PRIOR HISTORY: [**1] Application for Review of the Decision of the District Court of Appeal – Direct Conflict of Decisions. Second District – Case No. 2D11-5191. (Lee County).

Limones v. Sch. Dist. of Lee County, 111 So. 3d 901, 2013 Fla. App. LEXIS 1821 (Fla. Dist. Ct. App. 2d Dist., 2013)

COUNSEL: David Charles Rash of David C. Rash, P.A., Weston, Florida, and Elizabeth Koebel Russo of Russo Appellate Firm, P.A., Miami, Florida, for Petitioners.

Traci McKee of Henderson, Franklin, Starnes & Holt, P.A., Fort Myers, Florida, and Scott Andrew Beatty of Henderson, Franklin, Starnes & Holt, P.A., Bonita Springs, Florida, for Respondents.

Jennifer Suzanne Blohm and Ronald Gustav Meyer of Meyer, Brooks, Demma and Blohm, P.A., Tallahassee, Florida, for Amicus Curiae Florida School Boards Association, Inc.

Leonard E. Ireland, Jr., Gainesville, Florida, for Amicus Curiae Florida High School Athletic Association, Inc.

Mark Miller and Christina Marie Martin, Pacific Legal Foundation, Palm Beach Gardens, Florida, for Amicus Curiae Pacific Legal Foundation.

JUDGES: LABARGA, C.J., and PARIENTE, QUINCE, and PERRY, JJ., concur. CANADY, J., dissents with an opinion, in which POLSTON, J., concurs.

OPINION BY: LEWIS

OPINION

[*387] LEWIS, J.

Petitioners Abel Limones, Sr., and Sanjuana Castillo seek review of the decision of the Second District Court of Appeal in Limones v. School District of Lee County, 111 So. 3d 901 (Fla. 2d DCA 2013), asserting that it expressly [**2] and directly conflicts with the decision of this Court in McCain v. Florida Power Corp., 593 So. 2d 500 (Fla. 1992), and several other Florida decisions.

BACKGROUND

At approximately 7:40 p.m. on November 13, 2008, fifteen-year-old Abel Limones, Jr., suddenly collapsed during a high school soccer game. There is no evidence in the record to suggest that Abel collapsed due to a collision with another player. The event involved a soccer game between East Lee County High School, Abel’s school, and Riverdale High School, the host school. Both schools belong to the School District of Lee County. When Abel was unable to rise, Thomas Busatta, the coach for East Lee County High School, immediately ran onto the field to check his player. Abel tried to speak to Busatta, but within three minutes of the collapse, he appeared to stop breathing and lost consciousness. Busatta was unable to detect a pulse. An administrator from Riverdale High School who called 911, and two parents in the stands who were nurses, joined Busatta on the field. Busatta and one nurse began to perform cardiopulmonary resuscitation (CPR) on Abel. Busatta, who was certified in the use of an automated external defibrillator (AED), testified that he yelled for an AED. The AED in the [**3] possession of Riverdale High School was actually at the game facility located at the end of the soccer field, but it was never brought on the field to Busatta to assist in reviving Abel.

Emergency responders from the fire department arrived at approximately 7:50 p.m. and applied their semi-automatic AED to revive Abel, but that was unsuccessful. Next, responders from the Emergency Medical Service (EMS) arrived and utilized a fully automatic AED on Abel and also administered several drugs in an attempt to restore his heartbeat. After application of shocks and drugs, emergency responders revived Abel, but not until approximately 8:06 p.m., which was twenty-six minutes after his initial collapse. Although Abel survived, he suffered a severe brain injury due to a lack of oxygen over the time delay involved. As a result, he now remains in a nearly persistent vegetative state that will require full-time care for the remainder of his life.

Petitioners, Abel’s parents, retained an expert, Dr. David Systrom, M.D., who determined that Abel suffered from a previously undetected underlying heart condition. Dr. Systrom further opined that if shocks from an AED had been administered earlier, oxygen [**4] would have been restored [*388] to Abel’s brain sooner and he would not have suffered the brain injury that left him in the current permanent vegetative state. Petitioners then filed an action against Respondent, the School Board of Lee County.¹ They alleged that Respondent breached both a common law duty and a statutory duty as imposed by section 1006.165, Florida Statutes (2008),² when it failed to apply an AED on Abel after his collapse. The School Board moved for summary judgment, which the trial court granted and entered final judgment.

1 Petitioners initially filed an action against the School District of Lee County and the School Board of Lee County. All parties conceded that the only proper respondent in this case is the School Board of Lee County.

2 [HN1] Section 1006.165, Florida Statutes, requires all public schools that participate in the Florida High School Athletic Association to acquire an AED, train personnel in its use, and register its location with the local EMS.

On appeal, the Second District recognized that Respondent owed a duty to supervise its students, which in the context of student athletes included a duty to prevent aggravation of an injury. Limones, 111 So. 3d at 904-05 (citing Rupp v. Bryant, 417 So. 2d 658 (Fla. 1982); Leahy v. Sch. Bd. of Hernando Cnty., 450 So. 2d 883, 885 (Fla. 5th DCA 1984)). However, the Second District proceeded to expand its consideration of the duty owed and enlarged [**5] its consideration into a factual scope, extent, and performance of that duty analysis. Id. at 905 (citing Cerny v. Cedar Bluffs Junior/Senior Pub. Sch., 262 Neb. 66, 628 N.W.2d 697, 703 (Neb. 2001)). In this analysis, the Second District considered and evaluated whether post-injury efforts in connection with satisfying the duty to Abel should have included making available, diagnosing the need for, or using an AED. Id. The Second District relied on the discussion provided by the Fourth District Court of Appeal in L.A. Fitness International, LLC v. Mayer, 980 So. 2d 550 (Fla. 4th DCA 2008), even though that case did not consider the same “duty” and the health club did not have a duty involving students or any similar relationship.

In L.A. Fitness, the Fourth District considered whether a health club breached its duty of reasonable care owed to a customer who was using training equipment when the health club failed to acquire or use an AED on a customer in cardiac distress. Id. at 556-57. After a review of the common law duties owed by a business owner to its invitees, the Fourth District determined that a health club owed no duty to provide or use an AED on a patron in cardiac distress. Id. at 562. The Second District in Limones found no distinction between L.A. Fitness and the present case, even though the differences are extreme, and concluded that reasonably prudent post-injury [**6] efforts did not require Respondent to provide, diagnose the need for, or use an AED. Limones, 111 So. 3d at 906. The Second District also determined that neither the undertaker’s doctrine³ nor section 1006.165, Florida Statutes, imposed a duty to use an AED on Abel. Id. at 906-07. Finally, after it concluded that Respondent was immune from civil liability under section 768.1325(3), Florida Statutes (2008), the Second District affirmed the decision [*389] of the trial court. Id. at 908-09. This review follows.

3 [HN2] The undertaker’s doctrine imposes a duty of reasonable care upon a party that freely or by contract undertakes to perform a service for another party. See, e.g., Clay Elec. Coop., Inc. v. Johnson, 873 So. 2d 1182, 1186 (Fla. 2003) (citing Restatement (Second) of Torts § 323 (1965)). The undertaker is subject to liability if: (a) he or she fails to exercise reasonable care, which results in increased harm to the beneficiary; or (b) the beneficiary relies upon the undertaker and is harmed as a result. See id.

ANALYSIS

Jurisdiction

We first consider whether jurisdiction exists to review this matter. Petitioners assert that the decision below expressly and directly conflicts with the decision of this Court in McCain and other Florida decisions. See art. V, § 3(b)(3), Fla. Const. Specifically, Petitioners claim that the Second District defined the duty in a manner that conflicts with the approach delineated in McCain. We agree.

We have long [**7] held that [HN3] to succeed on a claim of negligence, a plaintiff must establish the four elements of duty, breach, proximate causation, and damages. See, e.g., U.S. v. Stevens, 994 So. 2d 1062, 1065-66 (Fla. 2008). Of these elements, only the existence of a duty is a legal question because duty is the standard to which the jury compares the conduct of the defendant. McCain, 593 So. 2d at 503. Florida law recognizes the following four sources of duty: (1) statutes or regulations; (2) common law interpretations of those statutes or regulations; (3) other sources in the common law; and (4) the general facts of the case. Id. at 503 n.2. As in this case, when the source of the duty falls within the first three sources, the factual inquiry necessary to establish a duty is limited.⁴ The court must simply determine whether a statute, regulation, or the common law imposes a duty of care upon the defendant. The judicial determination of the existence of a duty is a minimal threshold that merely opens the courthouse doors. Id. at 502. Once a court has concluded that a duty exists, Florida law neither requires nor allows the court to further expand its consideration into how a reasonably prudent person would or should act under the circumstances as a matter of law.⁵ We have clearly stated that the [**8] remaining elements of negligence–breach, proximate causation, and damages–are to be resolved by the fact-finder. See Dorsey v. Reider, 139 So. 3d 860, 866 (Fla. 2014); Williams v. Davis, 974 So. 2d 1052, 1056 n.2 (Fla. 2007) (citing McCain, 593 So. 2d at 504); see also Orlando Exec. Park, Inc. v. Robbins, 433 So. 2d 491, 493 (Fla. 1983) (“[I]t is peculiarly a jury function to determine what precautions are reasonably required in the exercise of a particular duty of due care.” (citation omitted)), receded from on other grounds by Mobil Oil Corp. v. Bransford, 648 So. 2d 119, 121 (Fla. 1995).

4 [HN4] Even when the duty is rooted in the fourth prong, factual inquiry into the existence of a duty is limited to whether the “defendant’s conduct foreseeably created a broader ‘zone of risk’ that poses a general threat of harm to others.” McCain, 593 So. 2d at 502.

5 Of course, as McCain acknowledges, [HN5] some facts must be established to determine whether a duty exists, such as the identity of the parties, their relationship, and whether that relationship qualifies as a special relationship recognized by tort law and subject to heightened duties. See 593 So. 2d at 503-04. However, further factual inquiry risks invasion of the province of the jury.

The Second District determined that a clearly recognized common law duty existed under both Rupp and Leahy. Rupp established that [HN6] school employees must reasonably supervise students during activities that are subject to the control of the school. 417 So. 2d at 666; see also Leahy, 450 So. 2d at 885 (explaining [**9] that the duty of supervision owed by a school to its students included a duty to prevent aggravation of an injury). [HN7] However, the Second District incorrectly expanded Florida law and invaded the province of the [*390] jury when it further considered whether post-injury efforts required Respondent to make available, diagnose the need for, or use the AED on Abel. Limones, 111 So. 3d at 905. This detailed analysis exceeded the threshold requirement that this Court established in McCain. Therefore, conflict jurisdiction exists to consider the merits of this case and we choose to exercise our discretion to resolve this conflict. [HN8] We review de novo rulings on summary judgment with respect to purely legal questions. See, e.g., Clay Elec. Coop., Inc. v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2003).

Common Law Duty

[HN9] As a general principle, a party does not have a duty to take affirmative action to protect or aid another unless a special relationship exists which creates such a duty. See Restatement (Second) of Torts § 314 cmt. a (1965). When such a relationship exists, the law requires the party to act with reasonable care toward the person in need of protection or aid. See id. § 314A cmt. e. As the Second District acknowledged below, Florida courts have recognized a special relationship between schools and their students based upon the fact that [**10] a school functions at least partially in the place of parents during the school day and school-sponsored activities. See, e.g., Nova Se. Univ., Inc. v. Gross, 758 So. 2d 86, 88-89 (Fla. 2000) (citing Rupp, 417 So. 2d at 666). Mandatory education of children also supports this relationship. Rupp, 417 So. 2d at 666.

[HN10] This special relationship requires a school to reasonably supervise its students during all activities that are subject to the control of the school, even if the activities occur beyond the boundaries of the school or involve adult students. See Nova Se. Univ., 758 So. 2d at 88-89 (applying the in loco parentis doctrine to a relationship between an adult student and a university when the university mandated participation by the student in an off-campus internship); Rupp, 417 So. 2d at 666-67 (concluding that a duty of supervision existed during an unsanctioned off-campus hazing event by a school-sponsored club); cf. Kazanjian v. Sch. Bd. of Palm Beach Cnty., 967 So. 2d 259, 268 (Fla. 4th DCA 2007) (finding that the duty of supervision did not extend to a student who was injured when she left school premises without authorization). This duty to supervise requires teachers and other applicable school employees to act with reasonable care under the circumstances. Wyke v. Polk Cnty. Sch. Bd., 129 F.3d 560, 571 (11th Cir. 1997) (citing Florida law); see also Nova Se. Univ., 758 So. 2d at 90 (noting that the university had a duty to use reasonable care when it assigned students to off-campus internships). Thereafter, it [**11] is for the jury to determine whether, under the relevant circumstances, the school employee has acted unreasonably and, therefore, breached the duty owed. See La Petite Acad., Inc. v. Nassef ex rel. Knippel, 674 So. 2d 181, 182 (Fla. 2d DCA 1996) (citing Benton v. Sch. Bd. of Broward Cnty., 386 So. 2d 831, 834 (Fla. 4th DCA 1980)); see also Zalkin v. Am. Learning Sys., 639 So. 2d 1020, 1021 (Fla. 3d DCA 1994) (concluding that whether alleged negligent supervision by school employees resulted in injury to a student was a jury issue).

[HN11] Lower courts in Florida have recognized that the duty of supervision creates the following specific duties owed to student athletes: (1) schools must adequately instruct student athletes; (2) schools must provide proper equipment; (3) schools must reasonably match participants; (4) schools must adequately supervise athletic events; and (5) schools must take appropriate measures after a student is injured to prevent aggravation of the injury. See [*391] Limones, 111 So. 3d at 904 (citing Leahy, 450 So. 2d at 885); see also Zalkin, 639 So. 2d at 1021. Other jurisdictions have acknowledged similar duties owed to student athletes. See Avila v. Citrus Cmty. Coll. Dist., 38 Cal. 4th 148, 41 Cal. Rptr. 3d 299, 131 P.3d 383, 392 (Cal. 2006) (“[I]n interscholastic and intercollegiate competition, the host school and its agents owe a duty to home and visiting players alike to, at a minimum, not increase the risks inherent in the sport.”); Kleinknecht v. Gettysburg Coll., 989 F.2d 1360, 1370 (3d Cir. 1993) (college owed duty to recruited athlete to take reasonable safety precautions against the risk of death); see also Jarreau v. Orleans Parish School Bd., 600 So. 2d 1389, 1393 (La. Ct. App. 1992) (school board owed duty to [**12] injured high school athlete to provide access to medical treatment); Stineman v. Fontbonne Coll., 664 F.2d 1082, 1086 (8th Cir. 1981) (college owed duty to provide medical assistance to injured student athlete).

In this case, Abel was a student who was injured while he participated in a school-sponsored soccer game under the supervision of school officials. Therefore, we conclude that Respondent owed Abel a duty of supervision and to act with reasonable care under the circumstances; specifically, Respondent owed Abel a duty to take appropriate post-injury efforts to avoid or mitigate further aggravation of his injury. See Rupp, 417 So. 2d at 666; Leahy, 450 So. 2d at 885. “Reasonable care under the circumstances” is a standard that may fluctuate with time, the student’s age and activity, the extent of the injury, the available responder(s), and other facts. Advancements with technology and equipment available today, such as a portable AED, to treat an injury were most probably unavailable twenty years ago, and may be obsolete twenty years from now. We therefore leave it to the jury to determine, under the evidence presented, whether the particular actions of Respondent’s employees satisfied or breached the duty of reasonable care owed.

For several reasons, we reject the decision of the Second [**13] District to narrowly frame the issue as whether Respondent had a specified duty to diagnose the need for or use an AED on Abel. First, as stated above, reasonable care under the circumstances is not and should not be a fixed concept. Such a narrow definition of duty, a purely legal question, slides too easily into breach, a factual matter for the jury. See McCain, 593 So. 2d at 502-04. We reject the attempt below to specifically define each element in the scope of the duty as a matter of law, as this case attempted to remove all factual elements from the law and digitalize every aspect of human conduct. We are also cognizant of the concern raised by Respondent and its amici that if a defined duty could require every high school to provide an AED at every athletic practice and contest, the result could be great expense. Instead, the flexible nature of reasonable care delineated here can be evaluated on a case by case basis. The duty does not change with regard to using reasonable care to supervise and assist students, but the methods and means of fulfilling that duty will depend on the circumstances.

Additionally, we reject the position of the Second District and Respondent that L.A. Fitness governs this case. [**14] The Fourth District in L.A. Fitness determined that the duty owed by a commercial health club to an adult customer only required employees of the club to reasonably summon emergency responders for a patron in cardiac distress. 980 So. 2d at 562; see also De La Flor v. Ritz-Carlton Hotel Co., 930 F. Supp. 2d 1325, 1330 (S.D. Fla. 2013) (citing L.A. Fitness, 980 So. 2d at 562). [*392] The adult customer and the health club stand in a far different relationship than a student involved in school activities with school board officials. Although some courts in other jurisdictions have determined that fitness clubs and other commercial entities do not owe a legal duty to provide AEDs to adult customers,⁶ the commercial context and relationship of parties in these cases is a critical distinction from the case before us. Despite the fact the business proprietor-customer and school district-student relationships are both recognized as relationships, these relationships are markedly different. We initially note that the proprietor-customer relationship most frequently involves two adult parties, whereas the school-student relationship usually involves a minor. Furthermore, the business invitee freely enters into a commercial relationship with the proprietor.

6 See, e.g., Verdugo v. Target Corp., 59 Cal. 4th 312, 173 Cal. Rptr. 3d 662, 327 P.3d 774, 792 (Cal. 2014) (holding that a retailer did not owe a common law duty to [**15] acquire and make available an AED to a patron); Miglino v. Bally Total Fitness of Greater N.Y., Inc., 20 N.Y.3d 342, 985 N.E.2d 128, 132, 961 N.Y.S.2d 364 (N.Y. 2013) (statute that required large health clubs to acquire an AED did not impose duty to use it); Rotolo v. San Jose Sports & Entm’t, LLC, 151 Cal. App. 4th 307, 59 Cal. Rptr. 3d 770, 774-75 (Cal. Ct. App. 2007) (refusing to impose a duty on owners of a sports facility to notify patrons of the existence and location of an AED), modified on other grounds by Verdugo, 327 P.3d at 784; Salte v. YMCA of Metro. Chi. Found., 351 Ill. App. 3d 524, 814 N.E.2d 610, 615, 286 Ill. Dec. 622 (Ill. App. Ct. 2004) (holding that a health club’s duty of reasonable care to its guests did not require it to obtain and use an AED on a guest).

By contrast, [HN12] Florida, along with the rest of the country, has mandated education of our minor children. § 1003.21, Fla. Stat. (2014). Compulsory schooling creates a unique relationship, a fact that has been recognized both by Florida courts and the Florida Legislature. Florida common law recognizes a specific duty of supervision owed to students and a duty to aid students that is not otherwise owed to the business customer. See Rupp, 417 So. 2d at 666-67. Furthermore, the Florida Legislature has specifically mandated that high schools that participate in interscholastic athletics acquire an AED and train appropriate personnel in its use. § 1006.165(1)-(2), Fla. Stat. Notably, the Legislature has not so regulated health clubs or other commercial facilities, even though the foreseeability for the need to use an AED may be similar in both contexts. See [**16] L.A. Fitness, 980 So. 2d at 561. The relationship between a commercial entity and its patron quite simply cannot be compared to that between a school and its students. We therefore conclude that the facts of this case are not comparable to those in L.A. Fitness.

Other Sources of Duty

Although Petitioners alleged in their pleadings that Respondent owed a statutory duty under section 1006.165, Florida Statutes, Petitioners did not clearly articulate before this Court the basis for such a duty. We therefore do not address it here. See, e.g., Chamberlain v. State, 881 So. 2d 1087, 1103 (Fla. 2004). Moreover, because we decide as a dispositive issue that Respondent’s motion for summary judgment was improperly granted because Respondent owed a common law duty to Abel, we decline to address Petitioners’ claim under the undertaker’s doctrine.

Immunity

Because we conclude that Respondent owed a common law duty to Abel, we must now consider whether Respondent is immune from suit under sections 1006.165 and 768.1325, Florida Statutes. [*393] See Wallace v. Dean, 3 So. 3d 1035, 1044 (Fla. 2009) (emphasizing that the existence of a duty is “conceptually distinct” from the determination of whether a party is entitled to immunity). Respondent claims that these statutory provisions grant it immunity. [HN13] The question of statutory immunity is a legal question that we review de novo. See, e.g., Found. Health v. Westside EKG Assocs., 944 So. 2d 188, 193-94 (Fla. 2006).

[HN14] Section 1006.165 requires all public schools [**17] that are members of the Florida High School Athletic Association to have an operational AED on school property and to train “all employees or volunteers who are reasonably expected to use the device” in its application. § 1006.165(1)-(2), Fla. Stat. Further, “[t]he use of [AEDs] by employees and volunteers is covered under [sections] 768.13 and 768.1325,” which generally regulate immunity under Florida’s Good Samaritan Act and the Cardiac Arrest Survival Act. § 1006.165(4).⁷ Subsection (3) of the Cardiac Arrest Survival Act states:

[HN15] Notwithstanding any other provision of law to the contrary, and except as provided in subsection (4), any person who uses or attempts to use an [AED] on a victim of a perceived medical emergency, without objection of the victim of the perceived medical emergency, is immune from civil liability for any harm resulting from the use or attempted use of such device. In addition, notwithstanding any other provision of law to the contrary, and except as provided in subsection (4), any person who acquired the device and makes it available for use, including, but not limited to, a community organization . . . is immune from such liability . . . .

§ 768.1325(3), Fla. Stat. (emphasis supplied). There is no immunity for criminal misuse, gross negligence, or similarly egregious misuse of an AED. § 768.1325(4)(a).

7 Although section 1006.165 references [**18] both the Good Samaritan Act, section 768.13, and the Cardiac Arrest Survival Act, section 768.1325, Respondent seeks immunity only under the Cardiac Arrest Survival Act. We therefore do not consider whether the Good Samaritan Act provides immunity under these circumstances. See, e.g., Chamberlain, 881 So. 2d at 1103.

[HN16] Under a plain reading of the statute, this subsection creates two classes of parties that may be immune from liability arising from the misuse of AEDs: users (actual or attempted), and acquirers. Users are clearly “immune from civil liability for any harm resulting from the use or attempted use” of an AED. § 768.1325(3), Fla. Stat. Additionally, acquirers are immune from “such liability,” meaning the “liability for any harm resulting from the use or attempted use” referenced in the prior sentence. Id. (emphasis supplied). Thus, acquirers are not immune due to the mere fact that they have purchased and made available an AED which has not been used; rather, they are entitled to immunity from the harm that may result only when an AED is actually used or attempted to be used. It is undisputed that no actual or attempted use of an AED occurred in this case until emergency responders arrived. Therefore, we hold that Respondent is not entitled to immunity under [**19] section 768.1325 and such section has absolutely no application here.

Despite the protests of Respondent and its amici, we do not believe that this straightforward reading of the statute defeats the legislative intent. The passage of section 1006.165 demonstrates that the Legislature was clearly concerned about the risk of cardiac arrest among high school athletes. The Legislature also explicitly [*394] linked this statute to the Cardiac Arrest Survival Act, which grants immunity for the use–actual or attempted–of an AED. The emphasis on the use or attempted use of an AED in the statute underscores the intent of the Legislature to encourage bystanders to use a potentially life-saving AED when appropriate. Without this grant of immunity, bystanders would arguably be more likely to hesitate to use an AED for fear of potential liability. To extend the shield of immunity to those who make no attempt to use an AED would defeat the intended purpose of the statute and discourage the use of AEDs in emergency situations. The argument that immunity applies when an AED is not used is spurious. The immunity is with regard to harm caused by the use of an AED, not a failure to otherwise use reasonable care.

CONCLUSION

We hold that Respondent [**20] owed a common law duty to supervise Abel, and that once injured, Respondent owed a duty to take reasonable measures and come to his aid to prevent aggravation of his injury. It is a matter for the jury to determine under the evidence whether Respondent’s actions breached that duty and resulted in the damage that Abel suffered. We further hold Respondent is not entitled to immunity from suit under section 768.1325, Florida Statutes. We therefore quash the decision below and remand this case for trial.

It is so ordered.

LABARGA, C.J., and PARIENTE, QUINCE, and PERRY, JJ., concur.

CANADY, J., dissents with an opinion, in which POLSTON, J., concurs.

DISSENT BY: CANADY

DISSENT

CANADY, J., dissenting.

Because I conclude that the decision of the district court of appeal, Limones v. School District of Lee County, 111 So. 3d 901 (Fla. 2d DCA 2013), does not expressly and directly conflict with McCain v. Florida Power Corp., 593 So. 2d 500 (Fla. 1992), I would dismiss review of this case for lack of jurisdiction under article V, section 3(b)(3), of the Florida Constitution. I therefore dissent.

In McCain, the plaintiff was injured when the blade of a trencher he was operating made contact with an underground electrical cable owned by Florida Power Corporation. The Court held that because cables transmitting electricity had “unquestioned power to kill or maim,” the defendant had created a “foreseeable zone of risk” and therefore, as a matter [**21] of law, had a duty to take reasonable precautions to prevent injury to others. McCain, 593 So. 2d at 503-04. In Limones, the district court of appeal held as a matter of law that a school district “had no common law duty to make available, diagnose the need for, or use” an automated external defibrillator on a student athlete who “collapsed on the field . . . stopped breathing and had no discernible pulse” during a high school soccer match. Limones, 111 So. 3d at 903, 906. The two decisions are clearly distinguishable based on their totally different facts. Therefore, there is no express and direct conflict and we lack jurisdiction to review the district court’s decision. POLSTON, J., concurs.

Florida AED Statute for Schools

Posted: December 18, 2016 | Author: Recreation Law | Filed under: First Aid, Florida, Medical | Tags: AED, AED Good Samaritan Act, Automatic External Defibrillator, Good Samaritan law | Leave a comment

Fla. Stat. § 1006.165 (2016)

§ 1006.165. Automated external defibrillator; user training.

(1) Each public school that is a member of the Florida High School Athletic Association must have an operational automated external defibrillator on the school grounds. Public and private partnerships are encouraged to cover the cost associated with the purchase and placement of the defibrillator and training in the use of the defibrillator.

(2) Each school must ensure that all employees or volunteers who are reasonably expected to use the device obtain appropriate training, including completion of a course in cardiopulmonary resuscitation or a basic first aid course that includes cardiopulmonary resuscitation training, and demonstrated proficiency in the use of an automated external defibrillator.

(3) The location of each automated external defibrillator must be registered with a local emergency medical services medical director.

(4) The use of automated external defibrillators by employees and volunteers is covered under ss. 768.13 and 768.1325.

Florida AED Good Samaritan Act

Fla. Stat. § 768.1325 (2016)

§ 768.1325. Cardiac Arrest Survival Act; immunity from civil liability.

(1) This section may be cited as the “Cardiac Arrest Survival Act.”

(2) As used in this section:

(a) “Perceived medical emergency” means circumstances in which the behavior of an individual leads a reasonable person to believe that the individual is experiencing a life-threatening medical condition that requires an immediate medical response regarding the heart or other cardiopulmonary functioning of the individual.

(b) “Automated external defibrillator device” means a lifesaving defibrillator device that:

1. Is commercially distributed in accordance with the Federal Food, Drug, and Cosmetic Act.

2. Is capable of recognizing the presence or absence of ventricular fibrillation, and is capable of determining without intervention by the user of the device whether defibrillation should be performed.

3. Upon determining that defibrillation should be performed, is able to deliver an electrical shock to an individual.

(c) “Harm” means damage or loss of any and all types, including, but not limited to, physical, nonphysical, economic, noneconomic, actual, compensatory, consequential, incidental, and punitive damages or losses.

(3) Notwithstanding any other provision of law to the contrary, and except as provided in subsection (4), any person who uses or attempts to use an automated external defibrillator device on a victim of a perceived medical emergency, without objection of the victim of the perceived medical emergency, is immune from civil liability for any harm resulting from the use or attempted use of such device. In addition, notwithstanding any other provision of law to the contrary, and except as provided in subsection (4), any person who acquired the device and makes it available for use, including, but not limited to, a community association organized under chapter 617, chapter 718, chapter 719, chapter 720, chapter 721, or chapter 723, is immune from such liability, if the harm was not due to the failure of such person to:

(a) Properly maintain and test the device; or

(b) Provide appropriate training in the use of the device to an employee or agent of the acquirer when the employee or agent was the person who used the device on the victim, except that such requirement of training does not apply if:

1. The device is equipped with audible, visual, or written instructions on its use, including any such visual or written instructions posted on or adjacent to the device;

2. The employee or agent was not an employee or agent who would have been reasonably expected to use the device; or

3. The period of time elapsing between the engagement of the person as an employee or agent and the occurrence of the harm, or between the acquisition of the device and the occurrence of the harm in any case in which the device was acquired after engagement of the employee or agent, was not a reasonably sufficient period in which to provide the training.

(4) Immunity under subsection (3) does not apply to a person if:

(a) The harm involved was caused by that person’s willful or criminal misconduct, gross negligence, reckless disregard or misconduct, or a conscious, flagrant indifference to the rights or safety of the victim who was harmed;

(b) The person is a licensed or certified health professional who used the automated external defibrillator device while acting within the scope of the license or certification of the professional and within the scope of the employment or agency of the professional;

(c) The person is a hospital, clinic, or other entity whose primary purpose is providing health care directly to patients, and the harm was caused by an employee or agent of the entity who used the device while acting within the scope of the employment or agency of the employee or agent;

(d) The person is an acquirer of the device who leased the device to a health care entity, or who otherwise provided the device to such entity for compensation without selling the device to the entity, and the harm was caused by an employee or agent of the entity who used the device while acting within the scope of the employment or agency of the employee or agent; or

(e) The person is the manufacturer of the device.

(5) This section does not establish any cause of action. This section does not require that an automated external defibrillator device be placed at any building or other location or require an acquirer to make available on its premises one or more employees or agents trained in the use of the device.

(6) An insurer may not require an acquirer of an automated external defibrillator device which is a community association organized under chapter 617, chapter 718, chapter 719, chapter 720, chapter 721, or chapter 723 to purchase medical malpractice liability coverage as a condition of issuing any other coverage carried by the association, and an insurer may not exclude damages resulting from the use of an automated external defibrillator device from coverage under a general liability policy issued to an association.

Sometimes you wish the defendant would lose when a fireman prevents a rescue by someone who probably could have saved the deceased’s life

Posted: September 19, 2016 | Author: Recreation Law | Filed under: California, First Aid, Paddlesports, Search and Rescue (SAR) | Tags: Duty to Rescue, Hazardous Recreational Activity, Immunity, No Duty to Rescue, Surfing | 2 Comments

At the same time, any claim for “negligent rescue” would put thousands of SAR volunteers at risk.

State: California, Court of Appeal of California, Fourth Appellate District, Division One

Plaintiff: Glenn A. Decker

Defendant: City of Imperial Beach

Plaintiff Claims: Failure to properly rescue and failure to allow rescue

Defendant Defenses:

Holding: For the Defendants

Year: 1989

The deceased and a friend went surfing off the city beach. There were no lifeguards on duty because it was not summer. Lifeguards were only at work during the summer season. The defendant city does not provide lifeguards for the beach except in the summer.

The defendant’s leash for his surfboard got caught on a line for a lobster trap and he eventually drowned.

While the deceased was still alive several people attempted to assist the deceased until the fire department showed up. On the scene the Fire Chief ordered no more rescues.

An Imperial Beach firefighter, Olin Golden, who was a water safety instructor and life guard, contacted Hewitt about the situation and borrowed Hewitt’s wet suit and surfboard. Imperial Beach Fire Chief Ronald Johnston ordered Hewitt and Golden and all other would-be rescuers to remain on the beach and not to attempt a rescue.

Eventually, the deceased died without being rescued and his body floated to shore. His mother sued the city for the botched rescue or actually no rescue. The trial court granted the cities motion for summary judgment.

This appeal then occurred.

Analysis: making sense of the law based on these facts.

The court first started looking at the requirements for summary judgment in California.

The aim of the summary judgment procedure is to discover whether the parties possess evidence requiring the fact-weighing procedures of a trial. “[The] trial court in ruling on a motion for summary judgment is merely to determine whether such issues of fact exist, and not to decide the merits of the issues themselves.” In reviewing the propriety of a summary judgment, the appellate court must resolve all doubts in favor of the party opposing the judgment.

A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff’s asserted causes of action can prevail.

The city first argued that it owed no duty because surfing was a hazardous recreational activity and there was a statute that protected it from liability issues of such activities.

Government Code 2 section 831.7 provides a public entity is not “liable to any person who participates in a hazardous recreational activity . . . for any damage or injury to property or persons arising out of that hazardous recreational activity.” Surfing is specifically included as a “hazardous recreational activity.” (§ 831.7, subd. (b)(3).)

In reviewing the statute the court found the legislature had you broad language in creating the statute in order to provide the broadest protection for the municipalities.

Instead, the Legislature used expansive language to describe the scope of the immunity, stating it applied to “any damage or injury to property or persons arising out of that hazardous recreational activity.” (Italics added.) This broad language is reasonably susceptible to an interpretation that it was intended to preclude liability for negligently inflicted injuries while rescuing a person who has been participating in a hazardous recreational activity since it can be said the rescue effort “arises out of” the individual’s participation in the hazardous recreational activity.

The court looked at the issues in the case and found the statute was created to encourage rescue. If any rescue was subject to litigation afterwards, no rescues would occur.

The act did seem to have an exception for gross negligence.

An interpretation of the hazardous recreational activities immunity to immunize public entities and their employees for acts of emergency rescue services unless there is gross negligence furthers the strong public policy encouraging rescues and emergency assistance.

However, no gross negligence claim was pled, and none was found in this case.

The court then looked at the Fire Chief “precluding other assistance.”

The facts show Imperial Beach firefighter Olin Golden borrowed Hewitt’s wet suit and requested permission to attempt a surf rescue of Gary. Decker states Golden “was a water safety instructor and a life guard trained in surf rescue.” While Decker presented evidence showing Golden was a water safety instructor and lifeguard, nothing in the record indicates Golden was experienced in surf rescue. Rather, the record indicates Golden had given swimming lessons at a high school pool and had guarded the pool; this was the information known to the fire chief at the time he told Golden to stay on the beach. Under these circumstances, it cannot be said the fire chief’s refusal to allow Golden to attempt a surf rescue constituted gross negligence.

Here the court found the duty of the fire chief in precluding the rescue was based on protecting the rescuer. As such the acts of preventing a possible rescue were not grossly negligent.

The next argument made by the plaintiff, was, the rescue technique used was antiquated and prevented a proper rescue.

Decker presented testimony by Charles Chase, an experienced lifeguard supervisor. Chase testified about the rescue method used by the Sheriff’s dive team (sending out a diver tethered to a rope) as follows: “A life line type rescue is used in special circumstances, but it would never be used with a strong side current [as was the case here] and it would never be used if you could get there quicker in a better way, and it’s a specialized form of rescue. Years and years ago the life line rescue was quite common, and that was prior to the use or the availability of, say, fins and also the availability of good swimmers. If you go back to the 20’s, they had a limited amount of people that could swim as well as a lot of people can swim now and fins weren’t available.”

The court found the technique was disfavored, but did not rise to the level of gross negligence in this case.

This testimony could support a finding that use of the lifeline rescue method is a disfavored surf rescue method and would not be used by an experienced, trained surf rescuer but it does not support a finding the sheriff’s dive team was grossly negligent for having used this method given their lack of training or experience in surf rescue.

Finding no gross negligence on the part of the fire chief or the fire department the appellate court upheld the trial court’s granting of the motion for summary judgment.

So Now What?

This is one of those cases that frustrated the heck out of me. Yet, overall, in hundreds of other situations, this is the good outcome. It will save a lot more other people because rescuing someone will not be a liability nightmare.

This is how the law is to be applied both as it applies to the individual parties who are in the case and future litigants, searches and victims of the city.

Sad, but true.

What do you think? Leave a comment.

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By Recreation Law Rec-law@recreation-law.com James H. Moss

Decker, v. City of Imperial Beach, 209 Cal. App. 3d 349; 257 Cal. Rptr. 356; 1989 Cal. App. LEXIS 301

Posted: September 18, 2016 | Author: Recreation Law | Filed under: California, First Aid, Legal Case, Medical, Paddlesports | Tags: Duty to Rescue, Hazardous Recreational Activity, Immunity, No Duty to Rescue, Surfing | Leave a comment

Decker, v. City of Imperial Beach, 209 Cal. App. 3d 349; 257 Cal. Rptr. 356; 1989 Cal. App. LEXIS 301

Glenn A. Decker, Plaintiff and Appellant, v. City of Imperial Beach, Defendant and Respondent

No. D007375

Court of Appeal of California, Fourth Appellate District, Division One

209 Cal. App. 3d 349; 257 Cal. Rptr. 356; 1989 Cal. App. LEXIS 301

April 4, 1989

PRIOR HISTORY: [***1]

Superior Court of San Diego County, No. 526147, Andrew G. Wagner, Judge.

DISPOSITION: The judgment is affirmed.

COUNSEL: Schall, Boudreau & Gore, W. Lee Hill and Robert J. Trentacosta for Plaintiff and Appellant.

Hollywood & Neil and Anton C. Gerschler for Defendant and Respondent.

JUDGES: Opinion by Kremer, P. J., with Nares, J., concurring. Separate concurring and dissenting opinion by Wiener, J.

OPINION BY: KREMER

OPINION

[*352] [**357] Glenn A. Decker appeals a summary judgment in favor of the City of Imperial Beach on his complaint for the wrongful death of his son, Gary Decker. On appeal, Decker contends the court erred in finding Imperial Beach was immune from liability because the death arose out of Gary’s participation in a “hazardous recreational activity” and in finding no “special relationship” existed between Gary and Imperial Beach. We conclude the trial court properly granted summary judgment and therefore affirm.

Facts

Around 5:30 p.m. on March 15, 1984, Gary and his friend Victor Hewitt went surfing off the 1600 block of Seacoast Drive in Imperial Beach. There were no lifeguard services provided at this beach during the nonsummer months. Soon after Gary entered the water, Gary’s surfboard leash became [***3] entangled in a nylon rope tether connecting a submerged lobster trap to a small floating surface buoy.

Bystanders noticed Gary appeared to be in trouble. They contacted Hewitt and called the county sheriff’s department. Hewitt twice attempted to paddle out to Gary on his surfboard to render assistance, but was unable to reach him. The sheriff’s department, which provided law enforcement support to Imperial Beach, called the City of Imperial Beach Fire Department to assist at the scene. Both agencies responded to the beach. ¹ An announcement by bullhorn was made to Gary, telling him “help [was] on the way.”

1 Imperial Beach, in its brief, seems to suggest it had no liability because only county employees (i.e., sheriff department deputies) were involved. The record indicates, however, that the Imperial Beach Fire Department responded to the scene and participated in the rescue operation and that Imperial Beach contracted with the sheriff’s department to provide police services to the city. Thus, liability cannot be precluded on this basis.

An Imperial Beach firefighter, Olin Golden, who was a water safety instructor and life guard, contacted Hewitt about the situation and [*353] borrowed [***4] Hewitt’s wet suit and surfboard. Imperial Beach Fire Chief Ronald Johnston ordered Hewitt and Golden and all other would-be rescuers to remain on the beach and not to attempt a rescue.

At about 6:45 p.m., an ASTREA helicopter arrived and hovered over Gary for 15 to 20 minutes, shining a bright light on him. Eventually, a helicopter rescue was rejected. The sheriff’s dive team attempted to rescue Gary by tying a rope around one diver’s waist and anchoring him to the shore while he waded into the surf. There was evidence that this was an antiquated method of surf rescue that has been abandoned because it is ineffective. Shortly [**358] after this rescue attempt, Gary’s surf leash became disentangled and he floated to shore, unconscious. All attempts to revive him failed. He was pronounced dead at University of California at San Diego Medical Center.

Discussion

Summary Judgment Standard

(1) [HN1] The aim of the summary judgment procedure is to discover whether the parties possess evidence requiring the fact-weighing procedures of a trial. ( Chern v. Bank of America (1976) 15 Cal.3d 866, 873 [127 Cal.Rptr. 110, 544 P.2d 1310]; Corwin v. Los Angeles Newspaper Service Bureau, Inc. (1971) 4 Cal.3d 842, 851 [94 Cal.Rptr. 785, 484 P.2d 953].) [***5] “[The] trial court in ruling on a motion for summary judgment is merely to determine whether such issues of fact exist, and not to decide the merits of the issues themselves.” ( Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107 [252 Cal.Rptr. 122, 762 P.2d 46].) (2) [HN2] In reviewing the propriety of a summary judgment, the appellate court must resolve all doubts in favor of the party opposing the judgment. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 183 [203 Cal.Rptr. 626, 681 P.2d 893].) The reviewing court conducts a de novo examination to see whether there are any genuine issues of material fact or whether the moving party is entitled to summary judgment as a matter of law. ( Lichty v. Sickels (1983) 149 Cal.App.3d 696, 699 [197 Cal.Rptr. 137].) (3) While “[summary] judgment is a drastic procedure, should be used with caution [citation] and should be granted only if there is no issue of triable fact” ( Brose v. Union-Tribune Publishing Co. (1986) 183 Cal.App.3d 1079, 1081 [228 Cal.Rptr. 620]), it is also true “[justice] requires that a defendant be as much entitled to be rid of an unmeritorious lawsuit as a plaintiff is entitled to maintain a good [***6] one.” ( Larsen v. Johannes (1970) 7 Cal.App.3d 491, 507 [86 Cal.Rptr. 744].) “A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff’s asserted causes of action [*354] can prevail. [Citation.]” ( Molko v. Holy Spirit Assn., supra, 46 Cal.3d at p. 1107.)

Hazardous Recreational Activities Immunity

(4a) Imperial Beach argues it has no liability for Gary’s death because it arose out of Gary’s participation in a “hazardous recreational activity.”

[HN3] Government Code ² section 831.7 provides a public entity is not “liable to any person who participates in a hazardous recreational activity . . . for any damage or injury to property or persons arising out of that hazardous recreational activity.” Surfing is specifically included as a “hazardous recreational activity.” (§ 831.7, subd. (b)(3).)

2 All statutory references are to the Government Code unless otherwise specified.

Decker argues section 831.7 does not bar his suit because Gary’s death was not “solely attributable” to surfing but was also due to Imperial Beach’s conduct during the rescue and section 831.7 provides immunity only for injuries caused by the hazardous recreational activity [***7] itself.

(5) ” [HN4] ‘The fundamental rule of statutory construction is that the court should ascertain the intent of the Legislature so as to effectuate the purpose of the law. [Citations.]'” ( T.M. Cobb Co. v. Superior Court (1984) 36 Cal.3d 273, 277 [204 Cal.Rptr. 143, 682 P.2d 338].) “In determining such intent, the court turns first to the words of the statute.” ( Regents of University of California v. Public Employment Relations Bd. (1986) 41 Cal.3d 601, 607 [224 Cal.Rptr. 631, 715 P.2d 590].) The court attempts to give effect to the usual, ordinary import of the language and seeks to avoid making any language mere surplusage. ( Fontana Unified School Dist. v. Burman (1988) 45 Cal.3d 208, 219 [246 Cal.Rptr. 733, 753 P.2d 689].) The words must be construed in context in light of the nature and obvious purpose of the statute where they appear. (Palos Verdes Faculty [**359] Assn. v. Palos Verdes Peninsula Unified Sch. Dist. (1978) 21 Cal.3d 650, 658-659 [147 Cal.Rptr. 359, 580 P.2d 1155].) (6) The various parts of a statutory enactment must be harmonized in context of the statutory framework as a whole. ( Moyer v. Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230-231 [110 Cal.Rptr. 144, 514 P.2d 1224]; [***8] Long Beach Police Officers Assn. v. City of Long Beach (1988) 46 Cal.3d 736, 746 [250 Cal.Rptr. 869, 759 P.2d 504].) (7) The statute “. . . must be given a reasonable and commonsense interpretation consistent with the apparent purpose and intention of the Legislature, practical rather than technical in nature, and which, when [*355] applied, will result in wise policy rather than mischief or absurdity. [Citations.]” ( Beaty v. Imperial Irrigation Dist. (1986) 186 Cal.App.3d 897, 902 [231 Cal.Rptr. 128]; see also Webster v. Superior Court (1988) 46 Cal.3d 338, 344 [250 Cal.Rptr. 268, 758 P.2d 596].)

(4b) In defining the scope of the hazardous recreational activities immunity, the Legislature did not choose narrow language; the Legislature did not limit the immunity to injuries “solely attributable” to the hazardous recreational activity. Instead, the Legislature used expansive language to describe the scope of the immunity, stating it applied to “any damage or injury to property or persons arising out of that hazardous recreational activity.” (Italics added.) This broad language is reasonably susceptible to an interpretation that it was intended to preclude liability for negligently [***9] inflicted injuries while rescuing a person who has been participating in a hazardous recreational activity since it can be said the rescue effort “arises out of” the individual’s participation in the hazardous recreational activity.

Such an interpretation — that the immunity extends to rescue efforts, a foreseeable result of participating in a hazardous recreational activity — is consistent with the statutory scheme. Section 831.7 contains a number of exceptions to the rule of immunity. [HN5] Subdivision (c) of section 831.7 provides: “Notwithstanding the provisions of subdivision (a), this section does not limit liability which would otherwise exist for any of the following:

“(1) Failure of the public entity or employee to guard or warn of a known dangerous condition or of another hazardous recreational activity known to the public entity or employee that is not reasonably assumed by the participant as inherently a part of the hazardous recreational activity out of which the damage or injury arose.

“(2) Damage or injury suffered in any case where permission to participate in the hazardous recreational activity was granted for a specific fee. For the purpose of this paragraph, a ‘specific [***10] fee’ does not include a fee or consideration charged for a general purpose such as a general park admission charge, a vehicle entry or parking fee, or an administrative or group use application or permit fee, as distinguished from a specific fee charged for participation in the specific hazardous recreational activity out of which the damage or injury arose.

“(3) Injury suffered to the extent proximately caused by the negligent failure of the public entity or public employee to properly construct or maintain in good repair any structure, recreational equipment or machinery, or substantial work of improvement utilized in the hazardous recreational activity out of which the damage or injury arose.

[*356] “(4) Damage or injury suffered in any case where the public entity or employee recklessly or with gross negligence promoted the participation in or observance of a hazardous recreational activity. For purposes of this paragraph, promotional literature or a public announcement or advertisement which merely describes the available facilities and services on the property does not in itself constitute a reckless or grossly negligent promotion.

“(5) An act of gross negligence by a public entity or [***11] a public employee which is the proximate cause of the injury.

“Nothing in this subdivision creates a duty of care or basis of liability for personal injury or for damage to personal property.”

[**360] In reading the exceptions to the immunity, it is first apparent that the Legislature did not expressly exempt from the immunity liability for injuries caused by negligent rescue efforts. Liability for negligent conduct is provided for certain conduct by a public entity (failure to guard or warn of a known dangerous condition that is not reasonably assumed by a participant as an inherent part of the activity, sponsorship of a hazardous recreational activity by charging a fee, failure to maintain structures, equipment or improvements used in the activity) but not for a public entity’s conduct during a rescue.

[HN6] The language of subdivision (c)(5) of section 831.7 is sufficiently broad to encompass rescue activity. It states immunity is not limited for “[an] act of gross negligence by a public entity or a public employee which is the proximate cause of the injury.” (Italics added.) Clearly, the “act” delineated in this subdivision is not intended to duplicate those mentioned in the other immunity exemptions, [***12] i.e., a public entity’s promotion or sponsorship of a hazardous recreational activity, provision of improvements or equipment, or failure to warn of known risks which are not inherently a part of the sport. Among the most obvious other “acts” which would involve a public entity with hazardous recreational activity is the act of rescuing a person who has been injured by participation in a hazardous recreational activity.

An interpretation of section 831.7 that it was intended to grant immunity for emergency rescue services unless there is gross negligence is consistent with other statutes providing immunity to persons providing emergency assistance. The Legislature has enacted numerous statutes, both before and after the enactment of section 831.7, which provide immunity to persons providing emergency assistance except when there is gross negligence. (See Bus. & Prof. Code, § 2727.5 [immunity for licensed nurse who in good faith renders emergency care at the scene of an emergency occurring outside the [*357] place and course of nurse’s employment unless the nurse is grossly negligent]; Bus. & Prof. Code, § 2395.5 [immunity for a licensed physician who serves on-call in a hospital emergency [***13] room who in good faith renders emergency obstetrical services unless the physician was grossly negligent, reckless, or committed willful misconduct]; Bus. & Prof. Code, § 2398 [immunity for licensed physician who in good faith and without compensation renders voluntary emergency medical assistance to a participant in a community college or high school athletic event for an injury suffered in the course of that event unless the physician was grossly negligent]; Bus. & Prof. Code, § 3706 [immunity for certified respiratory therapist who in good faith renders emergency care at the scene of an emergency occurring outside the place and course of employment unless the respiratory therapist was grossly negligent]; Bus. & Prof. Code, § 4840.6 [immunity for a registered animal health technician who in good faith renders emergency animal health care at the scene of an emergency unless the animal health technician was grossly negligent]; Civ. Code, § 1714.2 [immunity to a person who has completed a basic cardiopulmonary resuscitation course for cardiopulmonary resuscitation and emergency cardiac care who in good faith renders emergency cardiopulmonary resuscitation at the scene of an emergency [***14] unless the individual was grossly negligent]; Health & Saf. Code, § 1799.105 [immunity for poison control center personnel who in good faith provide emergency information and advice unless they are grossly negligent]; Health & Saf. Code, § 1799.106 [immunity for a firefighter, police officer or other law enforcement officer who in good faith renders emergency medical services at the scene of an emergency unless the officer was grossly negligent]; Health & Saf. Code, § 1799.107 [immunity for public entity and emergency rescue personnel acting in good faith within the scope of their employment unless they were grossly negligent].)

Further, there are policy reasons supporting an interpretation extending immunity to public entities for negligence occurring during the course of a rescue effort. It is a matter of strong public policy to [**361] encourage emergency assistance and rescue. Just three months after the incident involved here, the Legislature enacted Health and Safety Code section 1799.107 expressly granting immunity to emergency rescue personnel for any action taken within the scope of their employment to provide emergency services unless the personnel acted in bad faith or in a grossly [***15] negligent manner. ( Health & Saf. Code, § 1799.107, subd. (b).) In enacting this statute, the Legislature declared: “The Legislature finds and declares that a threat to the public health and safety exists whenever there is a need for emergency services and that public entities and emergency rescue personnel should be encouraged to provide emergency services.” ( Health & Saf. Code, § 1799.107, subd. (a).)

[*358] An interpretation of the hazardous recreational activities immunity to immunize public entities and their employees for acts of emergency rescue services unless there is gross negligence furthers the strong public policy encouraging rescues and emergency assistance.

We conclude summary judgment was properly granted to Imperial Beach on Decker’s cause of action for negligence.

III

(8a) The question remains whether Decker may recover on a theory of gross negligence pursuant to subdivision (c)(5) of section 831.7.

In Gore v. Board of Medical Quality Assurance (1980) 110 Cal.App.3d 184, 197 [167 Cal.Rptr. 881], the court examined the meaning of the term “gross negligence”: “Prosser on Torts (1941) page 260, also cited by the Van Meter court [ Van Meter v. Bent Construction Co. (1956) 46 Cal.2d 588 [297 P.2d 644]] [***16] for its definition of gross negligence, reads as follows: ‘Gross Negligence. This is very great negligence, or the want of even scant care. It has been described as a failure to exercise even that care which a careless person would use. Many courts, dissatisfied with a term so devoid of all real content, have interpreted it as requiring wilful misconduct, or recklessness, or such utter lack of all care as will be evidence of either — sometimes on the ground that this must have been the purpose of the legislature. But most courts have considered that “gross negligence” falls short of a reckless disregard of consequences, and differs from ordinary negligence only in degree, and not in kind. So far as it has any accepted meaning, it is merely an extreme departure from the ordinary standard of care.’ (Italics added.)”

(9) [HN7] California courts require a showing of “‘the want of even scant care or an extreme departure from the ordinary standard of conduct'” in order to establish gross negligence. ( Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d 124, 138 [181 Cal.Rptr. 732, 642 P.2d 792]; De Vito v. State of California (1988) 202 Cal.App.3d 264, 272 [248 Cal.Rptr. 330].) [***17] (10) Generally it is a triable issue of fact whether there has been such a lack of care as to constitute gross negligence ( Pacific Bell v. Colich (1988) 198 Cal.App.3d 1225, 1240 [244 Cal.Rptr. 714]) but not always. ( De Vito v. State of California, supra, at p. 272.)

(8b) Decker argues Imperial Beach is liable because their rescue personnel responded to the scene within minutes in their official capacity to give aid to Gary; they took both actual and ostensible control of the rescue efforts, they required other would-be rescuers to remain on the beach, including firefighter Golden; and “[the] promise to ‘help’ arrived in the [*359] form of the Sheriff’s Department Dive Team which was not trained in surf rescue techniques” and used a technique which “was abandoned by life guards trained in surf rescue in the 1920’s.” Decker concludes: “Unfortunately, Gary Decker would have been better off if the City of Imperial Beach had not responded. Their presence (by creating the illusion of competent assistance and by preventing other rescue efforts) proved fatal to Gary.”

Precluding Other Assistance

The facts show Imperial Beach firefighter Olin Golden borrowed Hewitt’s wet [**362] suit and requested [***18] permission to attempt a surf rescue of Gary. Decker states Golden “was a water safety instructor and a life guard trained in surf rescue.” While Decker presented evidence showing Golden was a water safety instructor and lifeguard, nothing in the record indicates Golden was experienced in surf rescue. Rather, the record indicates Golden had given swimming lessons at a high school pool and had guarded the pool; this was the information known to the fire chief at the time he told Golden to stay on the beach. Under these circumstances, it cannot be said the fire chief’s refusal to allow Golden to attempt a surf rescue constituted gross negligence. Sending Golden, a person not known to be trained or experienced in surf rescue, into the water could have endangered Golden’s safety and been the basis for finding negligence had Golden been injured. Since the facts suggest negligence could be based on either the act or the omission, a finding of gross negligence by virtue of the omission is not warranted; the case is too closely balanced. In such a case, it cannot be said there is a “‘want of even scant care or an extreme departure from the ordinary standard of conduct.'”

This same reasoning [***19] applies even more strongly to the fire chief’s refusal to allow Hewitt or other bystanders to attempt a surf rescue. Hewitt had already demonstrated his lack of qualifications to rescue Gary; he had tried twice and failed both times. (11) As to other would-be rescuers, their training and experience was unknown and it certainly cannot be said that it is gross negligence to discourage persons with unknown qualifications from attempting a dangerous surf rescue.

Rescue Options

(8c) Decker presented testimony by Charles Chase, an experienced lifeguard supervisor. Chase testified about the rescue method used by the Sheriff’s dive team (sending out a diver tethered to a rope) as follows: “A life line type rescue is used in special circumstances, but it would never be used with a strong side current [as was the case here] and it would never be [*360] used if you could get there quicker in a better way, and it’s a specialized form of rescue. Years and years ago the life line rescue was quite common, and that was prior to the use or the availability of, say, fins and also the availability of good swimmers. If you go back to the 20’s, they had a limited amount of people that could swim as well as [***20] a lot of people can swim now and fins weren’t available.”

When asked why he thought the dive team was unable to reach Gary, Chase explained that “[the] buoyancy of the full dive suit would have made it hard to submerge one’s self and/or dive under the waves while you’re swimming out but also slow you down.” He stated the line tethering the diver to the shore would be pulled down by the side current, a “force which would impede the progress towards the rescue as far as getting to him.” When asked if he had any other opinions about why the attempts to reach Gary were unsuccessful, Chase responded: “Well, it would obviously be the lack of — the dive team’s lack of training in open surf conditions and what would have been a routine rescue for a lifeguard. I’d have to qualify that a little bit. The routine rescue meaning to reach the victim would have not been a difficult task at all. Whether they could have untangled the victim is — that’s hard to judge from a Monday morning quarterback type of situation.”

This testimony could support a finding that use of the lifeline rescue method is a disfavored surf rescue method and would not be used by an experienced, trained surf rescuer but it [***21] does not support a finding the sheriff’s dive team was grossly negligent for having used this method given their lack of training or experience in surf rescue.

Nor did Decker present evidence which would support a finding Imperial Beach was grossly negligent in its selection of rescue techniques, in particular, its failure to call off-duty lifeguards trained in surf rescue for assistance.

[**363] To the extent Decker seeks to impose liability based on Imperial Beach’s failure to adopt a policy requiring the training of firefighters and sheriff’s deputies in surf rescue or the calling of trained lifeguards for assistance, his claim must fail. The Legislature has provided immunity to public entities for such policy decisions. (§ 820.2; Nunn v. State of California (1984) 35 Cal.3d 616, 622 [200 Cal.Rptr. 440, 677 P.2d 846].)

Nor can a finding of gross negligence be premised on the failure of the Imperial Beach rescue personnel at the beach to call for the assistance of the off-duty lifeguards. First, the facts show the rescue personnel diligently pursued attempts to rescue Gary, both by helicopter and by use of the sheriff’s dive team. Decker presented no evidence contesting the validity of [***22] [*361] decision to first attempt a helicopter rescue. He does not claim the Imperial Beach rescue personnel were grossly negligent in calling for the helicopter or attempting to effectuate a rescue by helicopter. Decker appears to treat the helicopter rescue as a valid rescue method. Second, the record shows there were no existing procedures or centralized dispatcher available for contacting off-duty lifeguards. Thus, the rescue personnel cannot be said to have been grossly negligent for having failed to follow established procedures or for having failed to pursue a readily available option (i.e., the record indicates the lifeguards were not readily and easily accessible). (Compare Lowry v. Henry Mayo Newhall Memorial Hospital (1986) 185 Cal.App.3d 188, 196, fn. 7 [229 Cal.Rptr. 620, 64 A.L.R.4th 1191] [affirming summary judgment based on immunity under Health & Saf. Code, § 1317 for a hospital rescue team because there were no facts showing bad faith or gross negligence for deviating from American Heart Association guidelines].)

Decker’s argument would find gross negligence because the rescue personnel elected to try two methods to rescue Gary but failed to try a third method, i.e., [***23] contacting off-duty lifeguards. This failure to pursue this alternative, which may or may not have succeeded in saving Gary’s life, does not constitute gross negligence. (12) [HN8] To avoid a finding of gross negligence, it is not required that a public entity must pursue all possible options. It is required only that they exercise some care, that they pursue a course of conduct which is not “‘an extreme departure from the ordinary standard of conduct.'” ( Franz v. Board of Medical Quality Assurance, supra, 31 Cal.3d 124, 138.)

(8d) The essence of Decker’s complaint is not that the Imperial Beach rescue personnel were grossly negligent in failing to try to rescue Gary, but that they were not timely in their rescue of Gary. To the extent Decker’s claim is essentially that Imperial Beach was not timely in providing lifeguard services, his case is similar to County of Santa Cruz v. Superior Court (1988) 198 Cal.App.3d 999 [244 Cal.Rptr. 105]. In the Santa Cruz case, the court found summary judgment was properly granted on a claim for gross negligence for injuries due to diving into shallow water. The court explained: “The only basis for liability that Magana alleged against City . . . [***24] was that City lifeguards failed to provide adequate and safe extrication and first aid to him promptly after he was injured. . . . The allegation here is that the lifeguard assigned to the area where the injury occurred did not respond and offer aid for 20 minutes. This is insufficient to raise a triable issue of gross negligence or bad faith.” ( Id. at p. 1007.)

Here the facts supporting gross negligence are even weaker. In contrast to the Santa Cruz case where no rescue efforts were made for 20 minutes, here [*362] the rescue personnel arrived promptly and they diligently and continuously tried to rescue Gary. The facts in this case do not warrant a finding of gross negligence. Summary judgment was properly granted on Decker’s cause of action for gross negligence.

Special Relationship

Imperial Beach also argues it had no liability for Gary’s death because no special [**364] relationship existed between Imperial Beach and Gary. We need not resolve this issue since we have held Imperial Beach has immunity under section 831.7.

The judgment is affirmed.

CONCUR BY: WIENER (In Part)

DISSENT BY: WIENER (In Part)

DISSENT

WIENER, J., Concurring and Dissenting. I agree that absent gross negligence, Government Code section 831.7 [***25] immunizes the City of Imperial Beach (City) from emergency rescue service. I disagree, however, that there are no triable factual issues as to the City’s gross negligence.

In the interest of brevity I will not belabor what I believe is the misapplication of the standards governing summary judgment to the facts here. (See maj. opn., ante, pp. 353-354.) I prefer to focus on the human aspects of this case.

Understanding the meaning of gross negligence in the context of this case does not require scholarly insight into an arcane legal subject. The simple question before us is whether there are triable factual issues relating to the City’s gross negligence. Significantly we are not asked to decide, as the majority would have us believe, whether Decker successfully established gross negligence. That determination is not required in a summary judgment proceeding. “[The] trial court in ruling on a motion for summary judgment is merely to determine whether such issues of fact exist, and not to decide the merits of the issues themselves.” ( Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107 [252 Cal.Rptr. 122, 762 P.2d 46].)

Here without sufficient factual support the majority say as a [***26] matter of law that the action taken by the fire chief to prevent any rescue effort was perfectly proper. Perhaps they are correct. It may well be that the chief made a prudent judgment call or at worse acted only negligently. But from [*363] the information in the record before us I cannot say that this conduct did not represent a substantial departure from ordinary care. I do not know what objective criteria, if any, the fire chief used to formulate his decision barring everyone on the beach from trying to save Gary. What investigation did the fire chief take before issuing his blanket directive preventing anyone from attempting to rescue this drowning young man? What authority did he have to effectively intimidate those who were willing to be Good Samaritans from acting as such when there is nothing in this record to support a finding that their efforts would not have been successful? I would hate to think that bureaucratic considerations dominated the chief’s decision. We may never know. The summary judgment remedy, characterized as a drastic remedy to be used with caution, has replaced a trial on the merits.

Although the appellate record is purportedly cold I cannot leave this [***27] case without admitting that I will remain haunted by the specter of this young man’s lengthy, unsuccessful struggle against the power of the sea, fighting to stay afloat, emotionally assisted by what can only be described as a callous call from the beach that “help was on the way.” In no way can this case be compared to the drowning described in City of Santa Cruz v. Superior Court (1988) 198 Cal.App.3d 999 [244 Cal.Rptr. 105] where lifeguards came to assist the victim as soon as they were able to do so, about 20 minutes after the accident occurred. All those participating in the rescue efforts were certified emergency technicians. It was also undisputed that the lifeguard assigned to the area was elsewhere properly attending to another problem when the accident happened. (At p. 1002.) I agree the facts in City of Santa Cruz do not present triable factual issues on the question of the City’s gross negligence. I cannot agree here. This case should be decided on the evidence presented in a trial and not on the documents before us.

Providing First Aid in Colorado just got screwy. New law allows voluntary registration, but also places requirements on EMT’S & First Responders.

Posted: June 21, 2016 | Author: Recreation Law | Filed under: Colorado, First Aid, Medical | Tags: Colorado, EMT, First Responder, Registration, Voluntary | Leave a comment

I’m not sure of the reasoning behind this law, it really does not do anything other than track EMT’s and “First Responders.”

House Bill 16-1034 was signed into law by the governor. I’ve attached a copy of the bill if you want to read it.

I’m not sure why the bill was needed. Until things shake out, I would advise my clients not to register. The only benefit to registering is you can say you are a registered EMT or registered first responder rather than saying you are an EMT or first responder?

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By Recreation Law Rec-law@recreation-law.com James H. Moss

Latest Wilderness Medical Society Journal Articles Jun-2016 (Volume 27, Issue 2)

Posted: June 16, 2016 | Author: Recreation Law | Filed under: First Aid, Medical | Tags: First Ai, Wilderness Medical Society, WMS | Leave a comment

New Practice Guidelines for the Prevention and Treatment of Drowning. If you have a pool, beach, swimming area as part of your program you need to know this!!!

You need to be a member to keep up to date with the latest medical and first aid issues.

Viewpoint

VIEW: Is Drinking to Thirst Adequate to Appropriately Maintain Hydration Status During Prolonged Endurance Exercise? Yes

Martin D. Hoffman, James D. Cotter, Éric D. Goulet, Paul B. Laursen

COUNTERVIEW: Is Drinking to Thirst Adequate to Appropriately Maintain Hydration Status During Prolonged Endurance Exercise? No

Lawrence E. Armstrong, Evan C. Johnson, Michael F. Bergeron

REBUTTAL from “Yes”

Martin D. Hoffman, James D. Cotter, Éric D. Goulet, Paul B. Laursen

REBUTTAL from “No”

Lawrence E. Armstrong, Evan C. Johnson, Michael F. Bergeron

Original Research

Risk of Avalanche Involvement in Winter Backcountry Recreation: The Advantage of Small Groups

Benjamin Zweifel, Emily Procter, Frank Techel, Giacomo Strapazzon, Roman Boutellier

Pulley Ruptures in Rock Climbers: Outcome of Conservative Treatment With the Pulley-Protection Splint—A Series of 47 Cases

Micha Schneeberger, Andreas Schweizer

An Analysis of Media-Reported Venomous Snakebites in the United States, 2011–2013

Dennis K. Wasko, Stephan G. Bullard

Outdoor Activity and High Altitude Exposure During Pregnancy: A Survey of 459 Pregnancies

Linda E. Keyes, Peter H. Hackett, Andrew M. Luks

Practice Guidelines

Wilderness Medical Society Practice Guidelines for the Prevention and Treatment of Drowning

Andrew C. Schmidt, Justin R. Sempsrott, Seth C. Hawkins, Ali S. Arastu, Tracy A. Cushing, Paul S. Auerbach

Concepts

Novel Technique for Epinephrine Removal in New Generation Autoinjectors

Patrick E. Robinson, Stephanie A. Lareau

Case Report

Subtle Cognitive Dysfunction in Resolving High Altitude Cerebral Edema Revealed by a Clock Drawing Test

Ian Quigley, Ken Zafren

Twostriped Walkingstick Targets Human Eye With Chemical Defense Spray

Ashley N. Ferrara, John B. Luck, Mark C. Chappell

First Reported Case of Fatal Stinging by the Large Carpenter Bee Xylocopa tranquebarica

Senanayake A.M. Kularatne, Sathasivam Raveendran, Jayanthi Edirisinghe, Inoka Karunaratne, Kosala Weerakoon

Snakebite by the Shore Pit Viper (Trimeresurus purpureomaculatus) Treated With Polyvalent Antivenom

Rupeng Mong, Hock Heng Tan

Fatal Honey Poisoning Caused by Tripterygium wilfordii Hook F in Southwest China: A Case Series

Qiang Zhang, Xinguang Chen, Shunan Chen, Zhitao Liu, Rong Wan, Juanjuan Li

Corneal Opacity in a Participant of a 161-km Mountain Bike Race at High Altitude

Morteza Khodaee, David R. Torres

Traumatic Amputation of Finger From an Alligator Snapping Turtle Bite

Robert D. Johnson, Cynthia L. Nielsen

Avalanche Survival After Rescue With the RECCO Rescue System: A Case Report

Katharina Grasegger, Giacomo Strapazzon, Emily Procter, Hermann Brugger, Inigo Soteras

Lightning Strike in Pregnancy With Fetal Injury

Kellen Galster, Ryan Hodnick, Ross P. Berkeley

Bitten by a Dragon

Stephen D. Ducey, Jeffrey S. Cooper, Michael C. Wadman

Case Series

The “Heel Hook”—A Climbing-Specific Technique to Injure the Leg

Volker Schöffl, Christoph Lutter, Dominik Popp

Brief Report

Acute Interstitial Nephritis Following Snake Envenomation: A Single-Center Experience

P.S. Priyamvada, Vijay Shankar, B.H. Srinivas, N.G. Rajesh, Sreejith Parameswaran

Sildenafil and Exercise Capacity in the Elderly at Moderate Altitude

George W. Rodway, Anne J. Lovelace, Michael J. Lanspa, Scott E. McIntosh, James Bell, Ben Briggs, Lindell K. Weaver, Frank Yanowitz, Colin K. Grissom

Cycling Injuries in Southwest Colorado: A Comparison of Road vs Trail Riding Injury Patterns

Simon Kotlyar

Body Positioning of Buried Avalanche Victims

Daniel K. Kornhall, Spencer Logan, Thomas Dolven

Clinical Images

A Wasp Sting and a Broken Heart

James H. Diaz

Mistaken Mushroom Poisonings

James H. Diaz

A Broken Leg in the Bugs

Alexander J. Martin-Bates

Letter to the Editor

Expanding Wilderness Medicine Fellowship Eligibility Beyond Emergency Medicine

Derek J. Meyer, Megann Young

In Response to ACE I/D Polymorphism and HAPE by Bhagi et al

Gaurav Sikri, Srinivasa A.B., Bikalp Thapa

In Reply to Dr Sikri et al

Swati Srivastava

Pitviper Envenomation Guidelines Should Address Choice Between FDA-approved Treatments for Cases at Risk of Late Coagulopathy

Leslie V. Boyer, Anne-Michelle Ruha

In Reply to Drs Boyer and Ruha

Nicholas C. Kanaan, Jeremiah Ray, Matthew Stewart, Matthew Fuller, E. Martin Caravati, Katie W. Russell, Sean P. Bush, Michael D. Cardwell, Robert L. Norris, Scott A. Weinstein

In response to Epidemiology of Search and Rescue in Baxter State Park: Dangers of Descent and Fatigue

Aaron Brillhart, Scott McIntosh, Jennifer Dow, Colin Grissom

In reply to Brillhart et al.

Chris R. Welter, J. Matthew Sholl, Tania D. Strout, Ben Woodard

Book Review

Book review

Aaron D. Campbell

Book review

Christopher Van Tilburg

Book review

Christopher Van Tilburg

Wilderness Image

Calotropis gigantea

Tanuj Kanchan, Alok Atreya

Erratum

Erratum

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Atcovitz v. Gulph Mills Tennis Club, Inc, 571 Pa. 580; 812 A.2d 1218; 2002 Pa. LEXIS 2832

Mobile Site: http://m.recreation-law.com

By Recreation Law Rec-law@recreation-law.com James H. Moss

Pennsylvania Supreme Court decision on duty to have and use an AED defines how statutes are to be interpreted and when liability can attach and cannot attach to a statute.

Posted: February 22, 2016 | Author: Recreation Law | Filed under: First Aid, Medical, Pennsylvania | Tags: AED, AED Good Samaritan, Automatic External Defibrillator, Good Samaritan, Immunity, Negligence | Leave a comment

The law that creates a safe harbor from civil liability for being a Good Samaritan does not create a duty to act. There still is no legal requirement to act as a Good Samaritan, however, if you do, you cannot be sued.

State: Pennsylvania, Supreme Court of Pennsylvania

Plaintiff: Jerry Atcovitz and Roslyn Atcovitz

Defendant: Gulph Mills Tennis Club, Inc, Jkst, Inc. and Gulph Mills/Jkst Tennis Club, Inc., Lafayette Ambulance Rescue Squad I

Plaintiff Claims: whether a tennis club owes a duty of care to its members to acquire and maintain an automated external defibrillator, hereinafter “AED,” on its premises for emergency use

Defendant Defenses: No duty

Holding: for the defendant Tennis Club

Year: 2002

The plaintiff was playing tennis at the defendant tennis club. While playing he suffered a stroke which was secondary to a heart attack. Within one minute tennis club, members started CPR on the plaintiff and ten minutes later an ambulance arrived. The ambulance administered defibrillation and transported the plaintiff to the hospital.

The plaintiff had a history of heart problems for twenty years, including a previous heart attack and bypass surgery. The tennis club did not know of the plaintiff’s medical history.

The heart attack and stroke left the defendant unable to concentrate or think, is unable to walk or get out of bed and requires assistance in all aspects of his life.

The plaintiff and his wife sued the defendant tennis club for not having an AED and not using it: “…had [Gulph Mills] possessed an AED device and used it on [Atcovitz] promptly, his injuries would have been significantly less and; therefore, that [Gulph Mills] is liable to him for damages.”

The plaintiff’s moved for summary judgment to prevent the defendant from asserting the defenses. The defendant then cross filed a motion for summary judgment which the trial court granted. The case was appealed and the Pennsylvania Appellate court, called the Superior Court, reversed. The case was then appealed to the Pennsylvania Supreme Court.

Between the incident that plaintiff suffered and the decision by the trial court to dismiss the Pennsylvania legislature passed an AED Good Samaritan Act. The Appellate court based some of the reasoning for its decision on the AED Good Samaritan Act the legislature passed.

Analysis: making sense of the law based on these facts.

The court started out by defining the specific issues it would look at as well as the procedural definitions it must follow. This provides a clear look at how Pennsylvania courts make decisions.

The Supreme Court first reviewed the standard of review the court must use. “Our standard of review is clear: the trial court’s order will be reversed only where it is established that the court committed an error of law or clearly abused its discretion.”

The court then reviewed under Pennsylvania law the requirements for granting a motion for summary judgment.

Summary judgment is appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. The reviewing court must view the record in the light most favorable to the nonmoving party, resolving all doubts as to the existence of a genuine issue of material fact against the moving party. When the facts are so clear that reasonable minds cannot differ, a trial court may properly enter summary judgment.

The court then defined the elements necessary to successfully plead a negligence claim under Pennsylvania.

The elements necessary to plead an action in negligence are: (1) the existence of a duty or obligation recognized by law, requiring the actor to conform to a certain standard of conduct; (2) a failure on the part of the defendant to conform to that duty, or a breach thereof; (3) a causal connection between the defendant’s breach and the resulting injury; and (4) actual loss or damage suffered by the complainant.

The court then further defined the element of duty in a negligence case. “A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.“

This definition was supported by the definition of duty in a legal treatise, Prosser and Keeton on the Law of Torts. This is the book referenced by courts in defining the law.

These are shifting sands, and no fit foundation. There is a duty if the court says there is a duty; the law, like the Constitution, is what we make it. Duty is only a word with which we state our conclusion that there is or is not to be liability; it necessarily begs the essential question. When we find a duty, breach and damage, everything has been said. The word serves a useful purpose in directing attention to the obligation to be imposed upon the defendant, rather than the causal sequence of events; beyond that it serves none. In the decision whether or not there is a duty, many factors interplay: The hand of history, our ideas of morals and justice, the convenience of administration of the rule, and our social ideas as to where the loss should fall. In the end, the court will decide whether there is a duty on the basis of the mores of the community, “always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind.”

The bad news issue the law changes as everything else in the US changes, Public policy and public opinion are just some of the factors that affect the law. The good news is the law attempts to stay current with the changing issues facing the law. Albeit a lot slower than most might wish, but it does change. “Thus, the legal concept of duty is necessarily rooted in often amorphous public policy considerations, which may include our perception of history, morals, justice, and society.”

The care as defined by a legal duty was further broken down by the court.

In Althaus, this Court enunciated several discrete factors, derived from the aforementioned principles, that our courts are to balance [HN6] in determining whether a common law duty of care exists: (1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution.

Thus the court takes in other issues in looking at determining how a case is to be decided, however, the law and prior decisions come first. Making a change requires major commitment by the courts to go down a different path and dismiss the prior cases leading down the old path. Consequently, you rarely see these changes, what you do see is slight modifications of the direction the path is taking.

Major changes are left to the legislature to respond more quickly to the issues facing the public. In this case, the court looked at the legislatures’ intent in creating an AED Good Samaritan Act.

…the overall public interest in the proposed solution. The Legislature’s enactments and the ensuing regulations reveal that acquisition, maintenance, and use of an AED, along with AED training requirements, are highly regulated. Where our lawmakers have so thoroughly considered the statewide application and implications of a subject, this Court must refrain from imposing additional requirements upon that legislation.

The appellate court used the newly enacted AED Good Samaritan Act to hold the defendant liable. The Supreme Court looked at the act differently in relation to this decision. The Supreme Court saw the act as proof that the legislature intended the issues surrounding AEDs was highly regulated. “Rather, they are relevant to demonstrate that the acquisition, maintenance, and use of an AED, along with AED training requirements, are highly regulated.”

When reviewing an act, the information within the law enacted by the legislature is the only information that can be reviewed. Anything not included in the act is therefore excluded from the analysis. “We must infer that, [HN11] under the doctrine of expressio unius est exclusio alterius, the inclusion of a specific matter in a statute implies the exclusion of other matters.”

The AED Act provides immunity for trained AED users and immunity for untrained users who use an AED in good faith.

The AED Good Samaritan Act, which was adopted two years after Atcovitz sustained his injuries, provides civil immunity for trained users of AEDs and requires that [HN12] “expected users shall complete training in the use of an AED. . . .” As an exception to that general rule, the AED Good Samaritan Act also provides civil immunity to untrained individuals who, in good faith, use an AED in an emergency as an ordinary, reasonably prudent individual would do under the same or similar circumstances. Significantly, the AED Good Samaritan Act defines “good faith” as including “a reasonable opinion that the immediacy of the situation is such that the use of an AED should not be postponed until emergency medical services personnel arrive or the person is hospitalized.”

The act, consequently, only creates a safe harbor for using an AED. It does not create liability for someone who does not use an AED.

Thus, the AED Good Samaritan Act merely creates an exception for imposing liability on an untrained individual who uses an AED in limited emergency situations; it does not authorize its use by any such individual.

In addition, it does not indicate that the Legislature aimed to dispense with the regulations governing the training and use of AEDs. Simply, the existence of a civil immunity provision for Good Samaritans who use an AED in an emergency situation cannot impose a duty on a business establishment to ac-quire, maintain, and use such a device on its premises.

The act cannot, then be used to create liability for not using an AED; it only removes liability for someone who does use an AED.

Neither the EMS Act nor the AED Good Samaritan Act imposed a duty upon Gulph Mills to acquire, maintain, and use an AED. Appellees do not cite any other case, statute, or regulation that would have imposed such a duty on Gulph Mills at the time of Atcovitz’s injuries in January 1996. Because Gulph Mills did not owe a duty to carry an AED, Appellees could not have established a prima facie claim of negligence.

There was a dissenting opinion, in this case. The dissent agreed with the majority opinion; it disagreed on how broad the decision was and thought several of the issues should be sent back for review by the trial court.

So Now What?

First understand there is a difference between what is moral, ethical and legal. My job is not to help you decide those issues. My job is to help you understand the law when you are faced with the issues. You can be morally and ethically right and be sued and lose. You can have no morals or ethics and be sued and lose. How you balance those aspects of your life, how you approach the issues you face in your life is not the subject of these articles. How the law applies to the facts set forth in the specific cases may affect your choices is what the article is about.

The good news is the decision prevents lawsuits for not having an AED or using an AED in Pennsylvania.

This case also defines how it would look at the reverse. If the law restricted the use of a device, the application of the law would not only allow for civil liability but possibly criminal liability also.

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