Verdugo v Target Corporation (2014) H&FLR 2014-59

Michael Verdugo and Anor v Target Corporation (2014) H&FLR 2014-59

United States Court of Appeal (Ninth Circuit)

28 October 2014

Coram: Pregerson, Graber and Berzon 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: Ryan Moore Craig and Benjamin R Trachtman (of Trachtman & Trachtman) and Richard Caldarone and Donald Falk (of Mayer Brown).

Catchwords: California – cardiac arrest in store – AED not available – negligence – duty of care – claim dismissed – moral obligation.

Facts:  On 31 August 2008 one Mary Verdugo (the deceased), aged 49 years, 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”.

The Supreme Court of California responded that the defendant’s common law duty of care to its cutomers did not include a duty to acquire and make available an AED for use in a medical emergency: Verdugo v Target Corp., (2014) H&FLR 2014-55; 59 Cal.4th 312 (2014).

Held: Per curiam, dismissing the appeal, that the District Court’s decision that Target did not have a relevant common law duty of care was consistent with the Supreme Court’s statement of Californian law and so the decision was affirmed.

Per Pregerson J, obiter, that stores like Target have a moral obligation to provide AEDs for use in a medical emergency.  If that moral obligation is not recognised by the stores, it would be appropriate for the matter to be considered by the legislature.


The Court’s judgment is available here.

Custodi v Town of Amherst (2012) H&FLR 2014-18

Robin Custodi v Town of Amherst & Ors (2012) H&FLR 2014-18

New York Court of Appeals

30 October 2012

Coram: Lippman CJ, Ciparick, Read, Smith, Pigott, Jones and Graffeo JJ

Appearing for the Appellant: Joel B Schechter (of Bennett, Schechter, Arcuri & Will LLP)

Appearing for the Respondent: Robert J Maranto

Catchwords: New York – rollerblading – residential street – fall – assumption of risk – duty of care – athletic or recreational activities

Facts: In July 2007 Robin Custodi (respondent) was injured while rollerblading in a residential street when she hit a two inch height differential where the driveway belonging to one Muffoletto (appellant) met a drainage culvert, causing her to fall. 

The respondent commenced proceedings in negligence against the defendant.  The appellant sought summary judgment from the Supreme Court which was granted on the basis of the respondent’s voluntary assumption of risk*.  On appeal, the Appellate Division found that the doctrine of primary assumption of risk did not apply and that there was a triable issue of fact with regard to proximate cause**.  The appellants appealed to the Court of Appeals.

Held: Per curiam, dismissing the appeal –

1. The principle of “primary assumption of risk” means that a plaintiff who freely accepts a known risk commensurately negates any duty of a defendant to protect them from that risk.  This principle applies when a consenting participant in a relevant activity is aware of an understand the risks and voluntarily assumes them.  The risks must be known, apparent or reasonably foreseeable to the plaintiff.

Trupia v Lake George Central School District, 14 NY.3d 392 (2010), Bukowski v Clarkson University, 19 NY.3d 353 (2012) and Benitez v New York City Board of Education, 73 NY.2d 650 (1989), followed.

2. Where a plaintiff has made a primary assumption of risk, the defendant’s duty is to make the conditions as safe as they appear to be.

Turcotte v Fell, 68 NY.2d 432 (1986), followed.

3. A plaintiff does not assume risks which are concealed, unreasonable enhanced, or caused by reckless or intentional conduct of other people.

Morgan v State of New York, 90 NY.2d 471 (1997), followed

4. The principle of primary assumption of risk is in general limited to particular athletic and recreational activities on the grounds that while they involve increased risks, they have significant social value and it is appropriate to shield coparticipants, sponsors and venue providers from liability.  The appellants were not providers of a means of a means of athletic or recreational activities and so this case was not appropriate for the application of the principle.  Further, it would be an excessive expansion of the doctrine to treat sidewalk defects or dangerous premises as inherent risks assumed by joggers, runners, cyclists and rollerbladers.

Ashbourne v City of New York, 82 NY.3d 461 (2011), Cotty v Town of Southampton, 64 AD.3d 251 (2009), Trupia v Lake George Central School District, 14 NY.3d 392 (2010), Bukowski v Clarkson University, 19 NY.3d 353 (2012) and Benitez v New York City Board of Education, 73 NY.2d 650 (1989), considered.


The Court’s judgment is available here.


*   Custodi v Town of Amherst (Supreme Court of New York, Feroleto J, 24 February 2010, unreported).

**  Custodi v Town of Amherst, 81 AD.3d 1344 (2011)