Suit For Alleged Failure to Use AED in Health Club

by David L. Herbert,, Esq., Senior Partner, David L. Herbert & Associates, LLC., Canton, Ohio.

This article by David Herbert was originally published in The Exercise Standards and Malpractice Reporter in January, 2010.  He examines a case in which the health club had an AED and personnel trained to use it, but failed to do so.

3703453975_75b5d50828In a recent and interesting case from New York, Digiulio v. New York Health & Racquet Club, et al., No. 2009-29454, Supreme Court, New York County, October 13, 2009, the court reported the following facts: “On the early morning of February 21, 2006, Mr. DiGiulio was working out on a treadmill at a branch of the New York Health and Racquet Club located on Whitehall Street in Manhattan when he suddenly fell off the machine and collapsed to the floor. Another member of the club ran down a flight of steps to the lobby and notified the club’s assistant manager, Terrance James. Mr. James immediately called 911 and ran up to assist Mr. DiGiulio. Another employee of the club, Bernard Ang, arrived and immediately began performing CPR. According to a report prepared by the defendants, Mr. Ang started performing CPR within two to three minutes after Mr. DiGiulio was stricken. Approximately five minutes later, paramedics arrived and began using their defibrillator on Mr. DiGiulio, whose pulse was eventually restored. He was then removed to New York Downtown Hospital where he was admitted from February 21, 2006 to April 3, 2006. He was later transferred to a hospital in New Jersey where he remained until his death on June 14, 2006.

Although Mr. James was trained in the use of a defibrillator, he failed to utilize the defibrillator which the club kept inside a glass enclosed cabinet that was mounted on the wall about twenty yards from where Mr. DiGiulio was stricken. At his deposition, Mr. James testified that he did not attempt to access the defibrillator because the cabinet had a lock on it and he did not have the key. Mr. James admitted that he never tried to open the cabinet or break the glass in order to access the defibrillator. Instead, he went downstairs and searched unsuccessfully for a key to the cabinet. In fact, unbeknownst to Mr. James, the defibrillator cabinet was never actually locked.”

Based upon these facts, suit was filed against the health and fitness facility. The plaintiff argued the
following in support of its allegations:

1)      The defendant violated New York Statutory Law (General Business Law §627-a(1), which required every health club with 500 or more members to maintain at least one defibrillator on the premises and an employee trained and certified in its use; and,
2)      The facility’s employee was negligent in not attempting to access the defibrillator by whatever means was necessary and his failure to do so was attributable to the club;
3)      The defendant was negligent in failing to make the AED easily accessible for use; and
4)      The facility was negligent in that it breached its common law duty toward the plaintiff’s decedent, all of which the plaintiff contended, proximately caused the decedent’s subsequent pain, suffering and death.

In addressing these issues the court noted: In addressing these issues the court noted: “In her motion papers, the plaintiff argues that the club had a common law duty to act reasonably towards the decedent and that it breached that duty by failing to properly utilize the defibrillator that was on the premises. Specifically, the plaintiff faults the club for (1) failing to properly train or provide information to its employees about the use of the defibrillator, (2) the negligent response of its employees to Mr. DiGiulio’s cardiac arrest and (3) its failure to notify its employees that the defibrillator could be accessed without the use of a key. The defendant, however, argues that it had no duty under the common law to utilize a defibrillator because, by voluntarily engaging in the activity of exercising on a treadmill, Mr. DiGiulio assumed the risk that he might suffer cardiac arrest.”

In response to these positions and arguments the court agreed with the defendant and ruled as follows: “It is well settled that by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. See Morgan v. State of New York, 90 N.Y.2d 471, 484 (1997). Generally, an owner or operator of an athletic facility only has a duty to exercise reasonable care to protect participants from unassumed, concealed or unreasonably increased risks. See Rutnik v. Colonie Center Club, 249 A.D.2d 873, 874 (3rd Dept. 1998). In this respect, the courts in this state have held that the risk of cardiac failure is inherent when participating in intense sporting activity or exercise. See Rutnik v. Colonie Center Club, 249 A.D.2d at 875. See also Colon v. Chelsea Piers Management, 50 A.D.3d 616, 617 (2nd Dept. 2008); Putrino v. Buffalo Athletic Club, 193 A.D.2d 1127, 1128 (4th Dept. 1993). Here, it is undisputed that Mr. Digiulio was a patron of the club who regularly exercised on the treadmill. He should thus be held to have assumed the inherent risk of suffering cardiac arrest from that activity.
As the defendant correctly asserts, it and/or its employees could have fulfilled their duty under the common law by simply calling 911. In fact, the club’s employees went beyond that obligation and
performed CPR until the emergency workers arrived. Since the club was not under any duty at common law to use a defibrillator, it cannot be held liable for its failure to do so. See Colon v. Chelsea Piers Management, 50 A.D.3d at 617; Rutnik v. Colonie Center Club, 249 A.D.2d at 874.

The plaintiff nevertheless argues that even if the defendant had no duty to Mr. DiGiulio or any other club member, once Mr. James assumed the duty to obtain and utilize a defibrillator, he was obligated to act in a reasonable manner. This argument is without merit. It is generally true, as the plaintiff suggests, that one who, being under no duty to do so, voluntarily takes charge of a person in a position of peril is subject to liability to that person for any bodily harm caused by the failure of the actor to exercise reasonable care to secure the safety of that person. See Mirza v. Metropolitan Life Ins. Co., 2 A.D. 3d 808, 809 (2nd Dept. 2003); Thrane v. Haney, 264 A.D.2d 808, 809 (3rd Dept. 1999). However, the actor can only be held liable for discontinuing his aid or protection if, by so doing, he leaves the other person in a worse position than when the actor took charge. See Parvi v. City of Kingston, 41 N.Y.3d 553, 559 (1977). Here, neither the club nor Mr. James placed the decedent in any more of a vulnerable position than he would have been in had Mr. James not even attempted to gain access to the defibrillator.

The plaintiff also argues that the club is liable because it violated GBL §627-a(1), which requires health clubs with 500 or more members to have at least one external defibrillator on the premises, as well as at least one person trained to use it. The club, which has 3,000 members, is clearly bound to comply with this requirement. In this respect, the club argues that it did, in fact, comply since a
defibrillator was present on the premises and accessible at the time of the decedent’s collapse. The court agrees.

It is true, as the plaintiff suggests, that the mere fact that a defibrillator is on the premises does not satisfy GBL §627-a(1) if the machine is not otherwise
available to assist a patron who suffers a heart attack. Clearly, if the defibrillator had been inaccessible because it had been placed in a remote location or in a locked cabinet with no key available, the presence of the machine would be meaningless and the statute could reasonably be construed as having been violated. Here, however, the machine was located nearby in an unlocked cabinet. The only
reason the machine was not used was because an employee did not think to even attempt to open the cabinet. The court does not construe GBL §627-a(1) as imposing liability on a health club which, in
compliance with the statute, maintains an accessible defibrillator on the premises, but whose employee exercise poor judgment in attempting to access or use it. Indeed, there is nothing in the statute which suggests that the principles applicable under common law negligence should be extended so as to make a health club liable for an employee’s
negligence in using, or attempting to use, an available defibrillator.”

While New York statutory law required the presence of an AED and a trained/certified member available for its use in every health club with 500 or more members. There is apparently no statutory requirement that such devices actually be used in the event of need for which there could be corresponding liability. WHAT DO YOU THINK?


“Further information on this and other topics of concern for health and fitness facilities and fitness professional is available from The Exercise Standards and Malpractice Reporter, now in its 23rd year of publication, published six times per year by PRC Publishing, Inc. of 3976 Fulton Drive NW, Canton, Ohio 44718, 1-800-336-0083,” David L. Herbert, J.D., is senior partner at Herbert & Benson, Attorneys at Law, Canton, Ohio.

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