(CN) - The California Supreme Court should provide guidance on demands that all retailers there need defibrillators for customer emergencies, the 9th Circuit said Tuesday.
Mary Ann Verdugo experienced sudden cardiac arrest in 2008 while shopping at a Target in Pico Rivera, Calif. It took paramedics several minutes to arrive, and the 49-year-old died at the scene.
The tragedy is not uncommon, according to the 9th Circuit, which noted that 300,000 people go into sudden cardiac arrest every year in America. Only 8 percent survive, and those who do generally have their heart restarted by an Automatic External Defibrillator (AED) within five minutes. While Target sells AEDs on its website, it does not require their installation in its stores.
Verdugo's mother and brother sued the retailer for wrongful death, but Target disputes that it has a duty to install AEDs in its stores.
After a Los Angeles federal judge ruled for Target, the Verdugos insisted in their appeal that California common law does create this duty. They said the three-judge 9th Circuit panel should certify the question to the California Supreme Court if it found otherwise.
Noting that existing California precedent does "not provide a clear answer to the question of whether Target had a duty under California law to purchase AEDs," the panel did just that Tuesday.
"The resolution of the question presented by this case implicates strong state interests and could have wide-reaching effects in the state of California," the order states. "The Verdugos seek the announcement of a common-law rule that would require many retail establishments across the state to acquire AEDs."
The panel certified the following question to the California Supreme Court:
"In what circumstances, if ever, does the common law duty of a commercial property owner to provide emergency first aid to invitees require the availability of an AED for cases of sudden cardiac arrest?"
Writing in dissent, Judge Harry Pregerson argued that the question was not so difficult as to prompt certification. Pregerson said he would have revived the Verdugos' complaint.
"Because of the reasonable foreseeability that a Pico Rivera Target customer could suffer sudden cardiac arrest, the insignificant burden of acquiring an AED and training employees on how to use the simple device, and the virtual certainty of death if an AED is not used within minutes of the onset of sudden cardiac arrest, the Pico Rivera Target had a duty to have available an AED in its store," he wrote.
"The majority refers the question to the California Supreme Court. I believe that in the circumstances of this case, the California common law duty for a business to provide emergency first aid to its invitees requires the availability of an AED for cases of sudden cardiac arrest. Thus, I would reverse the district court's dismissal of the complaint against Target and remand for further proceedings."