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April 22, 2013

Mandate Requiring an Automatic External Defibrillator (AED) and a Trained Operator On Site Does Not Create an Affirmative Duty to Use the Device

The New York Court of Appeals' February 7, 2013, 4-1 decision in Miglino v. Bally Total Fitness of Greater New York, Inc., 20 N.Y.3d 342 (2013) held that despite a statutory requirement that health clubs have an Automatic External Defibrillator (AED) and trained operator on site, there is no affirmative duty requiring the clubs to use the device.

Plaintiff's father collapsed at a health club owned and operated by Bally Total Fitness of Greater New York, Inc. ("Bally"). Bally was required to have an AED and an individual trained to operate it on site. Bally complied, and its AED employee, who was also trained in CPR, responded to the scene with the AED. The AED trained employee found the victim breathing heavily with a faint pulse. He did not start CPR or use the AED because he was instructed not to do so when a victim was breathing and had a detectable pulse. Two club members, a doctor and a medical student, later performed CPR on the victim until EMTs arrived. EMTs used an AED to administer electric shocks to the victim, but were unable to revive him.

Plaintiff, as executor of his father's estate, brought a wrongful death suit against Bally. Plaintiff alleged, among other things, that Bally's employees were negligent in failing to use the available AED. Bally moved to dismiss the Complaint for failure to state a cause of action on the grounds that it was protected from liability under New York's Good Samaritan Law. In opposition, Plaintiff argued that Bally had a statutory and common law duty to use the AED. The lower court denied Bally's motion to dismiss.

The Appellate Division, Second Department, affirmed the denial of Bally's motion to dismiss and modified the lower court's decision by finding that General Business Law ("GBL") §627-a, which required certain health clubs to maintain at least one AED and an individual trained to operate it, also imposed an affirmative duty of care upon the facility, the breach of which would be considered a cognizable statutory cause of action in negligence. The Second Department determined there was a cause of action for common law negligence as well because Bally's employee assumed a duty when aiding the victim. Bally appealed the Second Department's decision.

The Court of Appeals held that GBL §627-a does not impose a duty to use the AED. Rather, the Court of Appeals concluded health clubs are protected by the Good Samaritan Law from the risk of ordinary negligence with respect to the use of an AED, and only subject to liability where there is a showing of gross negligence. However, despite finding Plaintiff had no viable statutory claim, the Court of Appeals affirmed the denial of Bally's motion to dismiss. The Court held there was a viable common law negligence action based upon Bally's alleged failure to employ proper lifesaving measures to the victim after his collapse, as health clubs have a limited common law duty of care towards their members who have heart attacks while participating in club activities.

This case serves as an important reminder that statutory requirements regarding the maintenance and training on certain safety equipment, such as the requirement that health clubs maintain an AED and have trained operators on premises, do not necessarily create statutory causes of action for failure to use the mandated equipment.

If you require further information regarding the information presented in this Legal Alert and its impact on your organization, please contact Matthew J. Larkin, Chair of the Torts & Products Liability Defense Practice Area at (315) 425-2805 or


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