By Carla Varriale
New York’s Supreme Court recently dismissed a personal injury action arising out of the cardiac arrest and subsequent death of a patron of a health club which that provided an external defibrillator, as required by law, but whose employees failed to use the defibrillator because they erroneously believed the cabinet in which it was housed was locked.
In DiGiulio v. Gran, Inc. (Supreme Court, New York County, Index Number 105441/06, October 13, 2009), plaintiff’s decedent suffered a heart attack and collapsed while working out on a treadmill owned and operated by defendants’ health club. The assistant manager was notified of the collapse by another club member and promptly called 911. Another club employee began administering cardiopulmonary resuscitation (“CPR”) within two to three minutes. After approximately five minutes, paramedics arrived and used a defibrillator on plaintiff’s decedent. He was revived, hospitalized, and subsequently died. Although a defibrillator was provided at the health club approximately twenty yards away from where plaintiff’s decedent collapsed, the assistant manager admitted that he did not try to use the defibrillator because he believed that the cabinet that it was kept in was locked and he did not have a key. The defibrillator cabinet, however, was not locked.
Plaintiff’s negligence action attacked the defendant health club’s alleged failure to use the available defibrillator. An automated external defibrillator (“AED”) is a battery-driven device used to administer an electric shock through the chest wall of a person who has gone into cardiac arrest. The shock, called defibrillation, may help the heart establish an effective rhythm of its own. Trained non-medical personnel can use an AED to treat a person in cardiac arrest.
In DiGiulio, plaintiff argued that that the defendants’ employees failure to use the available defibrillator was a breach of the reasonable duty of care owed to members such as plaintiff’s decedent and that this breach proximately caused his death. Furthermore, plaintiff contended that the health club’s assistant manager was negligent in failing to attempt to open the cabinet and that the assistant manager’s negligence should be imputed to the health club. In addition to the common law negligence claims, plaintiffs also asserted claims that the defendant heath club violated New York General Business Law (“GBL”) Section 627-a-(1), which requires every health club of 500 or more member to maintain at least one defibrillator on its premises as well as personnel who are trained and certified in its proper use.
The defendants argued, among other things, that they had no duty to use the defibrillator because, by voluntarily participating in the activity of exercising on a treadmill, the plaintiff’s decedent assumed the risk of cardiac arrest.
The court agreed. Noting evidence that the plaintiff’s decedent regularly exercised on the treadmill, the court determined that he assumed the inherent risk of suffering cardiac arrest while doing so. The court cited to cases that held that the risk of cardiac failure is inherent in participating in exercise or sporting activity or exercise. See Rutnik v. Colonie Center Club, 249 A.D.2d 873, 672 N.Y.S.2d 451 (3rd Dep’t 1998) (Wrongful death action involving experienced racquetball player who suffered cardiac arrest while playing racquetball dismissed because decedent assumed the risk of playing racquetball and there was no requirement to have a defibrillator during the tournament); Colon v. Chelsea Piers Management, 50 A.D.3d 616, 855 N.YS.2d 201 (2nd Dep’t 2008) (Wrongful death action involving basketball player who suffered cardiac arrest while playing basketball dismissed because defendants had no statutory duty to provide an AED or personnel trained in CPR. Even assuming defendants’ premises fell within the definition of a health cub, GBL Section 627-a did not become effective until July 20, 2005).
The argument that the assistant manager who assumed a duty to obtain and to use the defibrillator assumed a duty of reasonable care was likewise unavailing. The court rationalized that an actor can only be held liable in New York if discontinuing his aid or protection leaves the other person in a worse position. Here, the court held, neither the health club nor the assistant manager placed plaintiff’s decedent in a more vulnerable position.
With regard to plaintiff’s claims regarding the defendants’ purported violation of GBL Section 627-a(1)’s requirement that the health club have at least one external defibrillator, the court determined that the health club was in compliance with GBL Section 627-a (1). Noting that the club, which has approximately 3,000 members, was subject to GBL Section 627-a(1), the Supreme Court held that the health club complied because it had such a defibrillator on the premises at the time of plaintiff’s decedent’s collapse. The Supreme Court declined to impose liability on a health club which, in compliance with the statute, had an accessible defibrillator on the premises, but due to the “poor judgment” of an employee, did not utilize it. The court determined that there is “nothing in the statute” which suggested that principles under the common law should be extended so as to make the health club liable for an employee’s negligence in using, or attempting to use, an available defibrillator.
Although it is not known if this decision will be appealed, the DiGiulio case highlights some the practical difficulties and potential liabilities facing health club owners and operators and their employees. It also underscores some potential litigation issues presented by GBL 627-a(1). For example, determining whether a facility is a “health club” within the meaning of the statute is an obvious issue. Moreover, requiring health clubs to have a defibrillator may present challenges if club staff is not trained and prepared to use the defibrillator. In the meantime, prudent recreation and sports fscilities should consult their state and local laws and determine the scope of their requirements in order to avoid liability. Given the salutary purpose of Section 627-a and similar laws, unnecessary deaths and potential liability of “Good Samaritans” are both undesirable outcomes.
Carla Varriale is a partner at Havkins, Rosenfeld, Ritzert and Varriale, LLP in New York. Her practice is focused on the representation of sports teams and venues. She is also on the faculty at Columbia University’s School of Continuing Education, where she teaches “Sports Law and Ethics.” Carla can be reached at firstname.lastname@example.org