Ninth Circuit requests Supreme Court help on a common law tort question

“In what circumstances, if ever, does the common law duty of a commercial property owner to provide emergency first aid to invitees require the availability of an Automatic External Defibrillator (‘AED’) for cases of sudden cardiac arrest?” That’s the question the majority of a Ninth Circuit panel would like the California Supreme Court to answer.

Verdugo v. Target Corporation involves a wrongful death lawsuit filed by the mother and brother of a woman who died after suffering sudden cardiac arrest in a Target store that did not have an AED. The district court dismissed the action. Two of the Ninth Circuit judges hearing the appeal from the dismissal — Judges Graber and Berzon — state that, because the plaintiffs are “seek[ing] the announcement of a common-law rule that would require many retail establishments across the state to acquire AEDs,” the question the federal appellate court is asking “implicates strong state interests and could have wide-reaching effects in the state of California.”

The third judge on the panel — Judge Pregerson — dissented, stating his view that, “in the circumstances of this case, the California common law duty for a business to provide emergency first aid to its invitees requires the availability of an AED for cases of sudden cardiac arrest.” Judge Graber wrote a concurring opinion, in which she said, absent Supreme Court guidance to the contrary, she would disagree with Judge Pregerson about a common law duty. “[B]ecause reasonable minds differ about the state law that we must apply,” Judge Graber concluded, “certification is particularly appropriate here.”

Look for the Supreme Court to decide by the middle of February whether they will answer the Ninth Circuit’s question.