2016-00201773-CU-PO

Karen Leighty vs. Royal Philips Healthcare

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Wood, Ted Daniel

CDA Rotunda Partners, LLC’s Motion for Summary Judgment/Summary Adjudication is denied.

Plaintiff’s objection to the Reply is sustained as to the new argument raised in the reply re no causation. Arguments in support of a motion that are not raised in the moving party’s moving papers but are instead raised for the first time in its reply papers are not properly presented to the trial court. Regency Outdoor Advertisement, Inc. v Carolina Lanes, Inc. (1995) 51 Cal.App.4th 1323, 1333; see St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 783; Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362 at fn. 8 [trial court should only permit party moving for summary judgment to include “additional . . . matter[s]” in its reply brief in “exceptional cases”].).

The Complaint alleges that on or about October 15, 2015, Steven Leighty suffered a cardiac arrest at 1201 K Street, Sacramento, California, that required the use of the Philips Heart Start Automated External Defibrillator, Model M5066A (“AED”). Plaintiffs allege that moving party Capitol Rotunda Partners, LLC was the owner of the premises and the owner of the defibrillator that allegedly failed to work properly, allegedly causing a significant and harmful delay in providing necessary emergency services to Steven Leighty, resulting in his death. Plaintiffs allege that moving party so carelessly and negligently owned, operated, managed, controlled, leased, rented said premises and so carelessly and negligently owned, operated, managed, serviced, repaired leased and rented said AED as to cause it to be dangerous and unsafe, causing the delay that result in Steven Leighty’s death from cardiac arrest. (Complaint ¶¶ 4, 6, 7)

The Complaint alleges causes of action for Negligence, Strict Liability and Breach of Warranty. The opposition states that the Strict Liability and Breach of Warranty causes of action have been dismissed. Therefore the only cause of action remaining as to moving party is Negligence.

Under California law, the common law duty of reasonable care to a patron does not include an obligation to acquire and make available an AED for the use of its patrons in a medical emergency. Verdugo v Target Corp (2014) 59 Cal.4th 312, 335. However, if an entity acquires an automated external defibrillator (AED), it is only immune from civil liability arising out of the AED’s use if it complies with the requirements set forth in Health & Saf. Code, § 1797.196. Civ. Code, § 1714.21. Rotolo v San Jose Sports and Entertainment, LLC (2007) 151 Cal.App.4th 307, 314.

Civil Code 1714.21(d) provides: “(1) 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 and Safety Code section 1797.196(b) provides:

(A) In order to ensure public safety, a person or entity that acquires an AED shall do all of the following:

(A) Comply with all regulations governing the placement of an AED.

(B) Notify an agent of the local EMS agency of the existence, location, and type of AED acquired.
(C) Ensure that the AED is maintained and tested according to the operation and maintenance guidelines set forth by the manufacturer.

(D) Ensure that the AED is tested at least biannually and after each use.
(E) Ensure that an inspection is made of all AEDs on the premises at least every 90 days for potential issues related to operability of the device, including a blinking light or other obvious defect that may suggest tampering or that another problem has arisen with the functionality of the AED.
(F) Ensure that records of the maintenance and testing required pursuant to this paragraph are maintained.

(2) When an AED is placed in a building, the building owner shall do all of the following:

(A) At least once a year, notify the tenants as to the location of the AED units and provide information to tenants about who they can contact if they want to voluntarily take AED or CPR training.

(B) At least once a year, offer a demonstration to at least one person associated with the building so that the person can be walked through how to use an AED properly in an emergency. The building owner may arrange for the demonstration or partner with a nonprofit organization to do so.

(C) Next to the AED, post instructions, in no less than 14-point type, on how to use the AED.

(3) A medical director or other physician and surgeon is not required to be involved in the acquisition or placement of an AED.

In support of the motion, moving party’s separate statement sets forth the largely undisputed facts that decedent Steven Leighty suffered a cardiac arrest on October 15, 2015 at 1201 K Street, a building owned by CDA Rotunda. A Phillips Heart Start Defilibrator, Model M5066A (the “AED”) was located on the premises. The on-duty security guard employed by Securitas retrieved the AED from the fire control room and handed it to the person who asked for the AED, which was then unsuccessfully used to attempt to revive Dr. Leighty. (UMFs 1-10)

Although the separate statement also references the Complaint’s allegations that moving party negligently maintained the defilibrator, defendant has offered no evidence that it properly maintained the defilibrator pursuant to the Health and Safety Code § 1797.196, or complied with its other requirements. Defendant merely asks the Court to conclude from the evidence in the separate statement that defendant had no duty as a matter of law to prevent Mr. Leighty’s cardiac arrest or to “save” Mr. Leighty. Defendant contends that as a matter of law, without providing any authority, that CDA Rotunda had no duty to maintain the AED on the Premises.

Defendant contends the case of Rotolo v San Jose Sports and Entertainment, LLC (2007) 151 Cal.App.4th 307 supports their argument that no duty was owed to a person who suffered a sudden cardiac arrest at the facility. In that case, the parents of a teenager who died of cardiac arrest alleged that the operators had a duty to notify users of the facility of the existence and location of an automatic external defibrillator (AED) at the facility. The court held that the duty the parents sought to impose upon the operators was not supported by the statutes or the principles developed in California common law. This case is distinguishable, as this case presents evidence of a duty pursuant to the statute based on the evidence that the AED was not properly maintained as required by Health & Saf. Code, § 1797.196. In Rotolo, the Court stated that “Those who do install AED’s in their buildings will not be liable for damages resulting from the rendering of emergency care with an AED, so long as certain requirements are met, including maintenance, testing, posting and notice. (Health & Saf. Code, § 1797.196, subd. (b)(2)(A),(B), (3) & (4).) Rotolo v San Jose Sports and Entertainment, LLC (2007) 151 Cal. App.4th at 314.

Defendant/Cross-defendant Securitas Security Services USA, Inc., opposes the motion, contending that CDA Rotunda has failed to meet its burden of proof on this motion sufficient to shift the burden to plaintiff because it presented no evidence to show that it complied with Health & Saf. Code, § 1797.196 to be covered by the immunity in Civ. Code, § 1714.21.

In opposition, plaintiffs correctly state that pursuant to Civil Code section 1714.21, cited above, there is immunity from civil damages for an owner of an AED only if the AED is appropriately maintained as set forth in Health and Safety Code section § 1797.196. Plaintiff does not contend that the duty arises from the common law but that the duty to decedent was imposed by statute, rendering the failure to maintain the AED negligence per se. Plaintiff has presented evidence that the AED was not maintained as required by the Health and Safety Code. The pads on the AED were 22 months past due for replacement, rendering them dry and unable to stick to decedent’s chest and therefore allegedly unable to provide the required charge. (See evidence in opp to UMF 11, Decl. of Smith cited in plaintiff’s response to defendant’s separate statement, including Ex. 3, Depo of McKee, pages 74-75

In Reply, defendant merely repeats the argument that it had no duty to “obtain” an AED. Defendant is conflating the duty to obtain with the duty to maintain. The Civil Code imposes a duty to maintain an AED once it is acquired and only if certain conditions are met is the immunity for civil liability available. CCP 1791.196. Defendant’s new argument is that plaintiff has the burden of proof to show that if CDC Rotunda met the requirements of that statute, Decedent would have survived the heart attack. However, this causation argument was not raised in the moving papers and defendant would have the burden of proof of showing absence of causation in the moving papers.

The Court finds that moving party has failed to meet its burden to show it had no duty to the decedent. While it had no duty to obtain an AED in the first place or otherwise prevent the decedent’s cardiac arrest, once an owner of the property maintains an AED on the premises, there is a duty in tort imposed by statute to maintain the AED as required by Health and Safety Code section § 1797.196. As noted above, Plaintiff has presented evidence in the opposition that no maintenance was performed on the AED since it was installed in 2011.

The prevailing party is directed to prepare a formal order complying with C.C.P. §437c (g) and C.R.C. Rule 3.1312.