| Digiulio v Gran, Inc. |
| 2010 NY Slip Op 04704 [74 AD3d 450] |
| June 3, 2010 |
| Appellate Division, First Department |
| Louise Digiulio, Individually and as Executrix of Albert Digiulio,Deceased, Appellant, v Gran, Inc., Doing Business as New York Health & RacquetClub, et al., Respondents. (And a Third-Party Action.) |
—[*1] Morgan Melhuish Abrutyn, New York (Douglas S. Langholz of counsel), forrespondents.
Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered October 19,2009, which denied plaintiff's motion for partial summary judgment on the issue of liability andgranted defendants' cross motion for summary judgment dismissing the complaint, unanimouslyaffirmed, without costs.
This appeal concerns the duty of a health club when faced with a stricken patron. Therelevant facts in this personal injury action are largely undisputed. At about 6:22 a.m. on themorning of February 21, 2006, plaintiff's decedent, Albert Digiulio, suffered a heart attack whilerunning on a treadmill at a health club that defendants owned and operated. Digiulio, age 52, wasa longtime club member who frequently exercised on its treadmills. After Digiulio fell off thetreadmill and collapsed on the floor, another patron ran down a flight of stairs to the lobby andalerted the club's assistant manager, Terrance James, who immediately called 911 and ranupstairs. Another club employee, Bernard Ang, came to Digiulio's aid at the same time andimmediately began performing cardiopulmonary resuscitation (CPR) on him.
While Ang was performing CPR, James, who was trained to operate automated externaldefibrillators (AEDs),[FN*]went to an AED stored in a glass cabinet hung on a nearby wall. The cabinet had a visible keylock mechanism, but was unlocked. Instead of trying to open the cabinet, James, who admittedlywas panicked, assumed it was locked and, not knowing where the key was, ran back downstairsto the club offices and searched for it in various places. He abandoned his search whenemergency medical services (EMS) personnel arrived at the scene.
An EMS pre-hospital care report of the incident stated that EMS personnel arrived at [*2]6:29 a.m. and found Digiulio "in full cardiac arrest." While EMSpersonnel were administering CPR, more personnel arrived, placed Digiulio on a monitor, anddelivered shocks with their own AED starting at 6:31 a.m. Digiulio's heartbeat was restored andhe was taken to a hospital. Digiulio, who had suffered anoxic brain damage while stricken,remained hospitalized from February 21 until his death on June 14, 2006.
In April 2006, Digiulio and his wife commenced this action alleging claims for negligenceand loss of consortium. Following discovery, plaintiff moved for partial summary judgment onthe issue of defendants' liability under theories of common-law negligence and negligence per sefor violation of General Business Law § 627-a, which required the club to keep an AEDon premises along with a person trained to use it. Plaintiff claimed that the decedent should havebeen treated with the club's AED in the minutes before the EMS personnel arrived, and if Jameshad used the AED when he first intended, her husband "almost certainly" would have survivedhis heart attack and "most likely" would have suffered no more than minor brain damage.
With respect to negligence, plaintiff claimed that since the club had an AED on the premises,it was "unreasonable" not to use it on the decedent. Plaintiff further claimed that the club wasgrossly negligent in failing to inform its employees that the wall cabinet was unlocked, and itwas negligent for the club's employees to treat the stricken client with CPR instead of the AED.Plaintiff further contended that James was negligent in not trying to open the unlocked casebefore searching for a key, and the club was liable for its employee's negligence under a theoryof respondeat superior.
Plaintiff also claimed that defendants violated General Business Law § 627-a (1),which, in relevant part, provides that every health club with 500 or more members (as is the casehere) "shall have on the premises at least one [AED] and shall have in attendance, at all timesduring business hours, at least one individual performing employment or individual acting as anauthorized volunteer who holds a valid certification of completion of a course in the study of theoperation of AEDs and a valid certification of the completion of a course in the training of [CPR]provided by a nationally recognized organization or association." Plaintiff acknowledged that theclub "literally" complied with the statute by having the AED and a certified employee onpremises, but argued that the statute imposed a duty to make the AED available and to use itwhen necessary.
Defendants, in opposition, argued that the decedent had voluntarily assumed the inherentmedical risks of intense exercise, including the risk of cardiac failure. Defendants furthercontended that their employees had acted reasonably under the circumstances by calling 911 andadministering CPR, and that they had no common-law duty to use an AED on the decedent.Finally, defendants argued that they had fully complied with section 627-a and that the statutedoes not impose a duty on health club employees to use AEDs at any particular time.
In denying the motion and granting the cross motion, the court found that no common-lawduty to the decedent had been breached, and that the club had complied with section 627-a bystoring the AED in an unlocked case in an accessible location on the premises.
We agree with the motion court that plaintiff has not established a common-law negligenceclaim. The decedent, in regularly using the club's treadmills, assumed the inherent risk of a heartattack that attends intense exercise (see Rutnik v Colonie Ctr. Ct. Club, 249 AD2d [*3]873, 875 [1998], lv denied 92 NY2d 808 [1998]; seealso Morgan v State of New York, 90 NY2d 471 [1997]). After the heart attack, the club'semployees more than fulfilled their duty of care by immediately calling 911 and performingCPR, had no common-law duty to use the AED, and could not be held liable for not using it.
Nor was the club vicariously liable for breaching a common-law duty of care that theemployees had assumed by coming to Digiulio's aid as "Good Samaritans." Since the employeeswere providing emergency medical treatment to Digiulio, they could only have been liable forgross negligence (see Public Health Law § 3000-a [1]), which is "conduct thatevinces a reckless disregard for the rights of others or 'smacks' of intentional wrongdoing"(Colnaghi, U.S.A. v Jewelers Protection Servs., 81 NY2d 821, 823-824 [1993]). Thecomplained-of conduct—namely, James's failure during an ongoing crisis to checkwhether the cabinet door was locked before searching for the key, and the treatment of Digiuliowith CPR instead of the AED—does not constitute gross negligence.
Turning to the statutory claim, we reject plaintiff's argument that General Business Law§ 627-a implicitly obligated the club to use its AED to treat Digiulio. While the statuteexplicitly requires health clubs to have AEDs and people trained to operate them on theirpremises, it is silent as to the clubs' duty, if any, to use the devices. As discussed, the commonlaw does not recognize that duty, and to interpret section 627-a as implicitly creating a new dutywould conflict with the rule that legislative enactments in derogation of common law, andespecially those creating liability where none previously existed, must be strictly construed (Vucetovic v Epsom Downs, Inc., 10NY3d 517, 521 [2008]).
The statute's limitation of the liability of health clubs and their agents when "voluntarily"using AEDs to aid stricken persons (see § 627-a [3]) indicates that its use is notobligatory. While the Legislature meant to require health clubs to make AEDs available andencourage their use in medical emergencies, it did not intend to impose liability on clubs forusage failures.
Finally, we agree with the motion court that the club complied with the statutory requirementto have an AED "on the premises" by storing it in an unlocked cabinet on the wall of an exerciseroom. Plaintiff argues that the statute implicitly requires health clubs to make their AEDsaccessible for use, and that under the circumstances the AED in defendants' club wasinaccessible because it was in a cabinet that James mistakenly believed was locked. Thisargument is unavailing. The club's AED was not inaccessible and was unavailable only becauseJames in his agitated state did not think of trying to open the cabinet. As the motion courtpointed out, section 627-a cannot be construed as imposing liability on a health club where onlyits employee's mistake prevented him or her from gaining access to the AED.Concur—Nardelli, J.P., McGuire, Acosta, Freedman and RomÁn, JJ. [PriorCase History: 26 Misc 3d 418.]
Footnote *: An AED delivers a shock to theheart of a cardiac arrest victim that can eliminate an abnormal "ventricular fibrillation" rhythm,which often causes arrest, and allow a normal heart rhythm to resume.