Last year I blogged about a case (Miglino v. Bally Total Fitness) where one of New York’s intermediate appellate courts (the Second Department) held that health and fitness clubs in New York State must actually use automated external defibrillators (AEDs) when necessary, and not just have them available. If not, they can be held liable to the unattended victim.
In that case, the Court was interpreting a 2005 Statute, General Business Law 627-a, whose literal reading required only that AED’s be “on-site” at New York health clubs, and did not specifically mandate that Club employees use them. Nevertheless, the intermediate appellate Court read between the lines, holding that it was “illogical to conclude that no such duty exists”.
Now the highest Court in the State, the New York Court of Appeals, has reversed that Court’s Decision. The majority disagreed that the law creates an affirmative duty for clubs to use their defibrillators.
Often courts go out of their way to prevent what they perceive as an unwarranted spread of liability. That’s clearly what the Court did here.
In a partial dissent, Chief Judge Jonathan Lippman said “it should go without saying that the presence of an AED will be of no benefit whatsoever to a person in cardiac arrest unless, of course, it is actually used”. He felt that the Statute, as interpreted by the majority, was “essentially purposeless” in that it required health clubs to purchase AEDs and train employees to use them but does not require the devices to be used.
Judge Lippman’s reasoning makes sense. And now the Statute, as interpreted by the Majority, makes no sense. It’s a toothless paper tiger. Might as well wipe it off the books.
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Michael G. Bersani, Esq.
mbk-law.com Central NY Personal Injury Lawyers
Michaels Bersani Kalabanka