AED Devices in Commercial Properties

Robert Thorn, Esq. and Jamie Sternberg, Esq., and Christine Relph, Esq.

 

Revised November, 2018

 

AEDs are portable emergency medical care devices that can help save the lives of sudden cardiac arrest victims whose hearts suddenly and unexpectedly stop beating.  An AED checks heart rhythm, and if needed, can deliver an electric shock to try to restore the heart’s normal rhythm.

Recent developments in AED law may interest California commercial property owners and managers.

  • A 2014 California Supreme Court case ruled that installation of AEDs was not required in most businesses.
  • In September 2015, SB 658 amended Health and Safety Code §1797.196(b), changing requirements for both the AED acquirer and the owner of a building in which an AED is installed.
  • In October 2015, SB 287 added new Health & Safety Code §19300 requiring certain new construction on or after January 1, 2017 to include installation of AEDs.
  • In September 2018, SB 1397 modified California Health and Safety Code §19300, to require certain properties built before January 1, 2017 but modified, renovated or tenant improved after January 1, 2020, to have AEDs on the premises.

As of 2014, Installation of AEDs Was Not Required in Most California Businesses

In Michael Verdugo v. Target Corporation (2014) 59 Cal.4th 312, 173 Cal.Rptr.3d 662, and 327 P.3d 774, the California Supreme Court ruled that Target was not required to provide AEDs in Target stores.

A store customer died after suffering a sudden cardiac arrest in a Target store. Her heirs brought an action against Target, claiming that Target breached its duty of care by failing to install AEDs at its stores “because of the important potentially life-saving role that an AED may play in the event of sudden cardiac arrest, the size of the Target store in question, the number of customers who patronize the store, and the relatively low cost of an AED device.” The heirs argued that “Target’s common law duty of reasonable care to its patrons included an obligation to obtain an AED”. They claimed that the common law requires imposition of this duty “for proprietors who have the manpower and the resources to fulfill the requirements of the AED immunity statutes without undue burden.”

Target disagreed, asserting that existing California statutes regarding acquisition and use of AEDs precluded a finding of a common law duty regarding AEDs, either because the AED statutes explicitly bar the finding, or because the AED statutes “occupy the field” of AED regulation, implicitly barring California courts from finding a common law duty regarding AEDs. It argued that the California legislature had already enacted statutes regarding the acquisition and use of AED obligation, and the only nonmedical business that are required to install AEDs under California law are fitness (“health”) studios (required under California Health and Safety Code §104113). [1] Target cited California Civil Code §1797.196(f) that reads: “Nothing in this section or Section 1714.21 of the Civil Code may be construed to require a building owner or a building manager to acquire and have installed an AED in any building.”

[1] Laws in California have also been enacted regarding placement of AEDs in state-owned and state-leased buildings.  Government Code §8455 directs California’s Department of General Services to “apply for federal funds … for the purchase of automated external defibrillators to be located within state-owned and leased buildings” (§ 8455, subd. (a)) and also requires the Department of General Services to “develop and adopt policies and procedures relative to the placement and use of automated external defibrillators in state-owned and leased buildings and ensure that training is consistent with Section 1797.196 of the Health and Safety Code and the regulations adopted pursuant to that section” (Gov. Code, § 8455(b)).

Target maintained that its employees satisfied its common law duty of reasonable care by summoning emergency medical personnel immediately after learning of the patron’s collapse, and that at most it might be required to provide simple first aid measures, but that it had no duty to provide AEDs.

The Supreme Court ruled that the California AED statutes did not eliminate the possibility of a common law duty to acquire and use AEDs. However the court found in favor of Target, ruling that Target’s common law duty of care to its customers does not include a duty to acquire and make available AEDs. The court noted that there are extensive requirements involving AED operator training, concurrent use of cardio pulmonary resuscitation, AED placement, tenant notification, and AED maintenance. The court reasoned, “In light of the extent of the burden that would be imposed by a requirement to acquire and make available an AED and in the absence of any showing of heightened foreseeability of sudden cardiac arrest or of an increased risk of death, (as might occur in a fitness studio) we conclude that under California law, Target owes no common law duty to its customers to acquire and make available an AED. Under these circumstances, it is appropriate to leave to the Legislature the policy decision whether a business entity should be required to acquire and make available an AED for the protection of its patrons.”

New Health & Safety Code §19300 Requiring AEDS

In October 2015, SB 287 added new Health & Safety Code §19300 requiring new construction on or after January 1, 2017 to include installation of AED if the new construction was for:

(1) Group A assembly buildings with an occupancy of greater than 300.

(2) Group B business buildings with an occupancy of 200 or more.

(3) Group E educational buildings with an occupancy of 200 or more.

(4) Group F factory buildings with an occupancy of 200 or more.

(5) Group I institutional buildings with an occupancy of 200 or more.

(6) Group M mercantile buildings with an occupancy of 200 or more.

(7) Group R residential buildings with an occupancy of 200 or more, excluding single-family and multifamily dwelling units.

For information about nonresidential building types, see California Building Code, Title 24, Section 302

 

In September 2018, SB 1397 modified California Health and Safety Code §19300, to require the properties above, built before January 1, 2017, but modified, renovated or tenant improved after January 1, 2020, to have AEDs on the premises, if the following apply:

(1) One hundred thousand dollars ($100,000) of tenant improvements in one calendar year.

(2) One hundred thousand dollars ($100,000) of building renovations in one calendar year.

(3) Any tenant improvement for places of assembly, including auditoriums and performing arts and movie theaters.

These properties would be required to install an AED even if the structure is vacant or under construction or renovation.

Properties with existing AED appliances in the common areas are not required to install an additional appliance.

Guidance for Landlords and Businesses Who Install AEDS

In California, under Civil Code §1714.21 (b), an uncompensated “good Samaritan”, who uses an AED in an emergency, is immune from liability, unless the good Samaritan is grossly negligent or intentionally acts to cause harm.

In contrast, businesses that purchase and install AEDs, and owners of buildings with AEDs, are immune from liability only if they meet specific requirements. Under Civil Code §1714.21 (d) “[a] person or entity that acquires an AED for emergency use pursuant to this section is not liable for any civil damages resulting from any acts or omissions in the rendering of the emergency care by use of an AED, if that person or entity has complied with subdivision (b) of Section 1797.196 of the Health and Safety Code.”

Health & Safety Code §1797.196 (b) specifies requirements for both the AED acquirer (which may be the property owner or a tenant) and the owner of the building in which the AED is installed. The requirements changed in September 2015 under SB 658. A comparison of the text of the old law and the new law is available at Health & Safety Code §1797.196 Changes. New and changed provisions (since 2015) are in italics below.

The AED acquirer must:

  1. Comply with all regulations governing the placement of an AED
  2. Notify the local emergency medical services (EMS) agency of the existence, location, and type of AED
  3. Ensure that the AED is maintained and regularly tested, as per manufacturer guidelines (previously the AED was required to meet the guidelines of the manufacturer, American Heart Association, and American Red Cross, and governmental rules and regulations) (5)
  4. Ensure the AED is tested at least biannually (previously every 30 days) and after each use, and inspected for blinking lights or obvious defects or tampering every 90 days
  5. Ensure records of required maintenance and testing are maintained

The following requirements were eliminated in September 2015:

  • (Previously, a medical director, physician or surgeon was required to be involved in the acquisition and placement of AEDs. This requirement has been eliminated).
  • (Previously, after an AED was used, the user was required to activate the EMS service and report the use to a licensed physician and the local EMS service. This requirement has been eliminated.)
  • (Previously, employee training was required. This requirement has been eliminated.)
  • (Previously, a written AED plan was required. This requirement has been eliminated.)

Building owners in buildings with AEDs must:

(1) Notify tenants at least once a year of the location of AED units in the building and provide information to tenants as to contact information for voluntary AED or CPR training. (Previously tenants were to be provided a brochure about proper use of an AED)

(2) At least once a year, offer a demonstration to at least one person associated with the building on how to use an AED properly

(3) Post instructions next to the AED, in no less than 14-point type, on how to use the AED

Note that health facilities (defined in Health and Safety Code §1250), buildings containing a health studio, as defined in subdivision (h) of the Health and Safety Code section 104113, or containing a public or private K-12 school have other requirements.

If an AED has been installed in a building, both owners of both the building and the business which acquired the AED should be familiar with and comply with the AED requirements established by law.

Additional Resources:

Kimball, Tirey & St. John LLP is a full service real estate law firm representing residential and commercial property owners and managers. This article is for general information purposes only. While KTS provides clients with information on legislative changes, our courtesy notifications are not meant to be exhaustive and do not take the place of legislative services or membership in trade associations. Our legal alerts are provided on selected topics and should not be relied upon as a complete report of all new changes of local, state, and federal laws affecting property owners and managers. Laws may have changed since this article was published. Before acting, be sure to receive legal advice from our office. For contact information, please visit our website: www.kts-law.com. For past Legal Alerts, Questions & Answers and Legal Articles, please consult the resource section of our website.

 

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