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William C. Altreuter
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Friday, February 15, 2013

Fridays are Law Days (sometimes) at Outside Counsel, and here, as promised, is an interesting case on tort liability and automatic Defibrillators. Miglino v. Bally Total Fitness of Greater N.Y., Inc. addresses an Appellate Division split on the issue. General Business Law § 627-a requires health clubs to have automated external defibrillators on premises, and to have staff trained in their use present at all times. The statute also provides:
Pursuant to sections three thousand-a and three thousand-b of the public health law, any public access defibrillation provider, or any employee or other agent of the provider who, in accordance with the provisions of this section, voluntarily and without expectation of monetary compensation renders emergency medical or first aid treatment using an AED which has been made available pursuant to this section, to a person who is unconscious, ill or injured, shall be liable only pursuant to section three thousand-a of the public health law.
Public Health Law §3000-a is New York's 'good Samaritan' statute. So, here's the question: If a health club has to have an AED, and somebody who knows how to use it available at all times, and the facility and the trained operator are insulated from liability, is there a duty to use the device, and can liability be imposed for the failure to do so? (Actually, that's two questions.) In Miglino the plaintiff's decedent was lying on the floor, pink, breathing and with a faint pulse. The employee did not use the AED on him because he'd been trained not to ins situations involving a breathing individual with detectable pulse." (There were also a couple of club members who were actual doctors working on the guy.) Nevertheless, the plaintiff's decedent became the plaintiff's decedent, and then the lawsuits started. The health club moved to dismiss for failure to state a cause of action, arguing that Public Health Law §3000-a immunized it. Interestingly, they submitted affidavits establishing that they had the proper equipment and the proper personnel, with the proper training, on the premises. The plaintiff argued that the failure to use the AED is what killed the guy, and submitted an expert affidavit to that effect. In other words, if they'd used the AED and he died, that would be one thing, but they didn't, and they had an affirmative duty to do so.

Supreme Court denied the motion to dismiss, and here's where it gets strange. In it's decision, Supreme Court "commented that Bally's evidentiary affidavits made out a 'strong, but not conclusive showing that the plaintiff does not have a cause of action.' The court added, however, that 'plaintiff [was] not obligated to come forth with evidence as he would on a motion for summary judgment to withstand dismissal'; as a result, the judge, 'being only concerned with the sufficiency of the plaintiff's pleadings, and not evidentiary matters,' determined that the complaint stated cognizable claims." Got that? Supreme Court said, "You made the wrong motion."

The Appellate Division affirmed, holding, that the General Business Law "imposes an affirmative duty of care upon the facility so as to give rise to a cognizable statutory cause of action in negligence and that the complaint stated a cause of action 'based solely upon common law negligence' because "LaGrega assumed a duty by coming to the decedent's assistance".

Leave to appeal to the Court of Appeals  was granted on the certified question, "Was the opinion and order of [the Appellate Division], dated December 27, 2011, properly made with respect to the cause of action asserted against [Bally]?"  The Court of Appeals, with Chief Judge Lippman dissenting, holds that there is no affirmative duty "running from a health club to its members to use an AED required ...onsite," but affirms the Appellate Division's decision any way, because the defendant moved to dismiss instead of moving for summary judgment.
Here, the complaint asserts that Bally did not "employ or properly employ lifesaving measures regarding [Miglino]" after he collapsed. Bally's motion is supported by affidavits that contradict this claim, by purporting to show that the minimal steps adequate to fulfill a health club's limited duty to a patron apparently suffering a coronary incident — i.e., calling 911, administering CPR and/or relying on medical professionals who are voluntarily furnishing emergency care — were, in fact, undertaken. But, as noted before, this matter comes to us on a motion to dismiss, not a motion for summary judgment. As a result, the case is not currently in a posture to be resolved as a matter of law on the basis of the parties' affidavits, and Miglino has at least pleaded a viable cause of action at common law. 
I am looking to the heavens and beseeching Ronald Dworkin.Why, I ask, did no-one think to invoke CPLR §3211(c)? "

  (c)  Evidence  permitted;  immediate  trial; motion treated as one for
  summary judgment. Upon the hearing of a motion  made  under  subdivision
  (a)  or (b), either party may submit any evidence that could properly be
  considered on a motion for summary judgment. Whether or  not  issue  has
  been  joined, the court, after adequate notice to the parties, may treat
  the motion as a  motion  for  summary  judgment.  The  court  may,  when
  appropriate  for  the  expeditious disposition of the controversy, order
  immediate trial of the issues raised on the motion.
 
This thing went all the way to the Court of Appeals, and the Court of Appeals said the defendant was right, but too bad, because you made the wrong motion. Amazing.

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