Michael Verdugo v Target Corporation (2014) H&FLR 2014-55

Supreme Court of California

23 June 2014

Coram: Cantil-Sakauye CJ, Baxter, Chin, Corrigan, Liu, Nicholson and Werdegar JJ.

Appearing for the Plaintiff: Robert A Roth (of Tarkington, O’Neill, Barrack & Chong) and David G Eisenstein (of Law Offices of David G Eisenstein)
Appearing for the Defendant: Richard Caldarone, Donald Falk and Foster Johnson (of Mayer Brown).

Catchwords: California – premises liability – Automated External Defibrillator – cardiac arrest – negligence

Facts:  On 31 August 2008 one Mary Verdugo, aged 49 years, (the deceased) suffered a cardiac arrest at the Target store in Pico Rivera.  There was no automated external defibrillator (AED) in the store.  Paramedics were called and attended within minutes.  They were unable to revive the deceased.

The deceased’s mother and brother issued proceedings in the Los Angeles County Superior Court against the defendant on the basis that it been negligent in not having an AED available for use in an emergency.  On the defendant’s application the matter was transferred to the Federal District Court, which then granted the defendant’s application to dismiss the matter on the basis that Target was not obliged to make an AED available for use by customers.  The plaintiff appealed to the Court of Appeals for the Ninth Circuit, which referred a question of law to the Supreme Court of California: Verdugo v Target Corp., 704 F.3d 1044 (9th Cir., 2012).  The referred question was expressed as follows –

“Whether, under California law, the common law duty of reasonable care that defendant Target Corporation … owes to its business customers includes an obligation to obtain and make available on its business premises an … AED … for use in a medical emergency”.

Held: Per Cantil-Sakauye CJ (Baxter, Chin, Corrigan, Liu and Nicholson JJ concurring) –

1.  California Civil Code §1714.21 and Health & Safety Code §1797.196 were not intended to supplant the common law on whether business establishments must acquire or use an AED.  In general, statutes should not be construed to alter or conflict with the common law.  A statute will not supplant the common law entirely in an area unless the legislature has shown an intention to “cover the field”.  General and comprehensive legislation, minutely describing courses of conduct, parties, things affected, limitations and exceptions, will suggest such an intention.

I.E. Associates v Safeco Title Insurance Co., 39 Cal.3d 281 (1985); California Association of Health Facilities v Dept of Health Services, 16 Cal.4th 284 (1997), followed

Rotolo v San Jose Sports & Entertainment LLC, 151 Cal.App.4th 307 (2007), distinguished.

Breaux v Gino’s, Inc., 153 Cal.App.3d 379 (1984), doubted.

2.  At common law, a business entity’s duty of reasonable care to its business patrons does not include an obligation to acquire an make available an AED for use in a medical emergency.  When the precautionary medical safety measures that a plaintiff argues a business ought to have provided are costly or burdensome (and not minimal), the business is not required to provide them unless there was a heightened or high degree of foreseeability of the medical danger in issue.

Ann M. v Pacific Plaza Shopping Centre, 6 Cal.4th 666; Delgado v Trax Bar & Grill, 36 Cal.4th 224 (2005); Castaneda v Olsher, 41 Cal.4th 1205 (2007), approved*.

Per Werdegar J –

3.  Target’s common law duty of care to patrons does not include an obligation to acquire and make available and AED for use in a medical emergency.  Relevant to this conclusion was that it was no more likely the deceased would suffer a cardiac arrest in the store than in any other place, and that the connection between her death and the defendant’s failure to provide an AED was uncertain.  In addition, the defendant was not morally blameworthy, and the practical and insurance consequences of imposing a duty were problematic.

Rowland v Christian, 69 Cal.2d 108 (1968), applied.

Ann M. v Pacific Plaza Shopping Centre, 6 Cal.4th 666, doubted.


The Court’s judgment is available here.
* This is consistent with more general common law principles: see Stephen Tuck, ‘To the Rescue: Liability in Negligence for Third Party Criminal Acts in the United States and Australia’, 23 Ind. Int’l & Comp. L. Rev 183 at 195-199 (2013)

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