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general business law 627-a, which requires that a health club have an automated external defibrillator and a person qualified to use it does not impose tort liability on the club for failure to use it.

The Court of Appeals, in a full-fledged opinion by Judge Read, over a partial dissent, determined that General Business Law 627-a, which requires a health club to have an automated external defibrillator (AED) and a person qualified to use it, does not impose tort liability based upon a failure to use the device. Here plaintiff’s decedent collapsed and the health club employee did not use the AED because plaintiff’s decedent was breathing. Subsequently a doctor and a medical student attended to plaintiff’s decedent. When the ambulance personnel used a AED, plaintiff’s decedent could not be revived. A wrongful death action was brought against the club (Bally) and defendant’s moved to dismiss:

… [W]e hold that General Business Law § 627-a does not create a duty running from a health club to its members to use an AED required by that provision to be maintained on site.

The dissent objects that our interpretation renders section 627-a “virtually meaningless” (dissenting op at 352) and “purposeless” … . On the contrary, there is nothing meaningless or purposeless about a statute that seeks to insure the availability of AEDs and individuals trained in their use at locations—i.e., health clubs—where there is a population at higher risk of sudden cardiac arrest. Obviously, though, AEDs are not meant to be employed mindlessly. …

A law that mandates the presence of AEDs and trained individuals at health clubs is easy to obey and enforce. The implied duty envisioned by the dissent is neither; such a duty… would engender a whole new field of tort litigation, saddling health clubs with new costs and generating uncertainty. The legislature is unlikely to have imposed such a new duty absent an express statement, especially given the remedy of treble damages provided by General Business Law § 628. Miglino v Bally Total Fitness of Greater N.Y., Inc., 2013 NY Slip Op 00780 [20 NY3d 342], CtApp 2-7-13

 

 

 

 

 

 

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