On October 6, 2014, the Florida Supreme Court heard oral argument in a case involving whether a public school owes a duty to maintain, make available, and use an automated external defibrillator (AED) on a student athlete who collapses during a school-sanctioned athletic competition. See Limones v. School Board of Lee County, No. SC13-932. The Second District Court of Appeal held that the school board’s common law duty to prevent aggravation of a student’s injury did not include making an AED available and that the school board did not have a statutory duty to make an AED available to the student. To view the Second District’s opinion, click here.
This case arises from the collapse of a high school athlete, Abel Limones, on the field during a soccer game. When Abel stopped breathing and had no pulse, his coach and a nurse bystander performed CPR, but Abel was not resuscitated until emergency personnel arrived and used a defibrillator. Abel suffered severe and permanent brain damage and his parents sued the school board, alleging that it was negligent in failing to maintain an AED on or near the soccer field, failing to make it available for use, or in failing to actually use an AED on Abel. The trial court determined the school board did not have a duty to make available, diagnose the need for, or use an AED and that, even if it did, the school board was statutorily immune from the action.
On appeal, the Second District acknowledged that Florida courts generally recognize a school’s duty to adequately supervise its students, and this duty extends to athletic events and includes utilizing appropriate post-injury efforts to protect the injury against aggravation. The issue in this case, however, was whether reasonably prudent post-injury efforts for Abel would have required making available, diagnosing the need for, or using an AED. The Second District noted that while Florida courts have not addressed a school district’s duties in this context, the Fourth District in L.A. Fitness v. Mayer has concluded that a business owner does not have a common law duty to provide CPR or maintain or use an AED when a business invitee collapses while exercising at the owner’s facility.
In L.A. Fitness, a health club patron suffered cardiac arrest and collapsed during a workout. An employee of the health club, who was certified in CPR, called 911, but did not perform CPR. The health club did not have an AED on the premises. The Fourth District noted that courts from other jurisdictions have uniformly refused to extend a business owner’s duty from calling for medical assistance within a reasonable amount of time to providing “medical care or medical rescue services,” which includes using an AED. The Fourth District also looked for further guidance to a Connecticut case in which the court examined the American Red Cross and the American Heart Association’s Guidelines for First Aid. See Pacello v. Wyndam Int’l., 41 Conn. L. Rptr. 193 (Conn. Super. Ct. 2006). Based on the absence of CPR from those guidelines, the court concluded that CPR is something more than first aid – it requires training and re-certification. Thus, while CPR is routine for emergency medical responders, “non-medical employees certified in CPR remain laymen and should have discretion in deciding when to utilize the procedure.” The court applied this rationale to the maintenance and use of an AED as well.
The Second District found that L.A. Fitness and the cases cited by it did not support the finding of a common law duty on behalf of the school board to make available, diagnose the need for, or use an AED on Abel.
Abel’s parents argued that the school board undertook a duty to safeguard Abel by acquiring an AED and training personnel in its use and that it failed to safeguard Abel by not using the AED. The court held, however, that Abel’s parents failed to establish that the school board’s action in acquiring the AED and training personnel in its use compelled the school board to ensure that the AED would be used under these circumstances.
Abel’s parents also argued that the school board’s duty stemmed from Florida Statutes Section 1006.165, which provides that a public school that is a member of the Florida High School Athletic Association must have an operational AED on school grounds. This statute also provides that each school must ensure that all employees and volunteers who are reasonably expected to use the device obtain appropriate training. The Second District noted that there were no reported cases citing Section 1006.165, but that its terms are very succinct and there is no question that the school board complied with the requirements.
The court also looked to see whether a duty existed under Florida Statutes Sections 768.13 and 768.1325. Section 768.13, known as the “Good Samaritan Act,” provides immunity from civil liability to any person “who gratuitously and in good faith renders emergency care or treatment” under certain circumstances in emergency situations outside a hospital or doctor’s office. While this statute requires a person who undertakes a duty to render aid to do so reasonably, it does not set forth a duty to render aid.
Section 768.1325, known as the “Cardiac Arrest Survival Act,” provides immunity from civil liability for those who use or attempt to use an AED or for “any person who acquired the device and makes it available for use.” Like Section 768.13, Section 768.1325 does not create a legal duty to render aid through the use of an AED. Furthermore, because neither statute clearly set forth an intent to create a private cause of action, neither statute can be construed as establishing civil liability.
Finally, the Second District rejected the arguments of Abel’s parents that the school board is not entitled to immunity under 768.1325 because it is not a “person” as contemplated by the Cardiac Arrest Survival Act.
This article will be updated once the Florida Supreme Court decides the case.