New York Business Litigation Lawyer Blog
Gregory Miglino, Sr., passed out at a gym one morning. While 911 was summoned, a gym employee that had been trained on an automated external defibrillator (“AED”) went to assist Miglino. For some reason, perhaps because a doctor and medical student were on the scene, the employee did not attempt to use the AED. Miglino died upon his arrival at the hospital. His Estate sued the gym claiming that it was negligent in not using the AED. The gym sought dismissal arguing that while it was obligated to have an AED on site and someone on staff trained to use it, it had no obligation to use the AED, and because the Good Samaritan law insulates one from liability where medical assistance is voluntarily made, the gym could not be liable.
In an apparent split from the Appellate Division, First Department, the Second Department found the gym to have an affirmative obligation to not just have an AED on site and someone trained to use it, but to actually use it. The Second Department found it inconsistent that a law that would require the on site presence of an AED and someone to use it to assist club members, would not also require its use. Because the law was specifically designed to assist club members, the court found it “illogical to conclude that no duty exists” to use the AED, and refusing to recognize that principal, would “eviscerate the very purpose for which the legislation was enacted.” Rhetorically, the court asked “why statutorily mandate a health club facility to provide the device if there is no concomitant requirement to use it?”