BILL ANALYSIS Ó
SB 287
Page 1
Date of Hearing: July 14, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
SB
287 (Hueso) - As Amended July 8, 2015
As Proposed to be Amended
SENATE VOTE: 28-3
SUBJECT: Automated external defibrillators (AEDs)
KEY ISSUES:
1)SHOULD BUILDINGS constructed after january 1, 2017 WITH
OCCUPANCY of 200 or more be required to Have An automated
external defibrillator, or AED, installed on the premises?
2)Should a person who acquires an AED for installation in such a
building be given qualified immunity for acquiring the AED?
SYNOPSIS
An automated external defibrillator, or AED, is a medical device
that is used to administer an electric shock to the heart of a
person who has suffered cardiac arrest through the person's
chest wall. Built-in computers in an AED assess the patient's
heart rhythm, determine whether the person is in cardiac arrest,
and signal whether to administer the shock. Audible cues guide
SB 287
Page 2
the user through the process of using the AED. In 1999, in an
effort to encourage the installation and use of AEDs in
commercial buildings, the Legislature provided qualified
immunity to commercial property owners who installed AEDs in
their buildings. That legislation (SB 911 (Figueroa), Ch. 163,
Stats. of 1999) put in place a number of requirements for
property owners who installed AEDs and Good Samaritans who use
them in order to obtain qualified immunity for civil liability
associated with the installation or use of the AED. This bill
seeks to impose similar requirements on newly constructed
private and public buildings with occupancy of 200 or more.
Although state law provides extensive regulation of the
installation of AEDs in business properties, the California
Supreme Court has held that it was appropriate under these
circumstances to leave to the legislature the policy decision
whether a business should be required to acquire and make
available an AED for the protection of its patrons. By
requiring the installation of AEDs on newly constructed
buildings with an occupancy of 200 or more, and providing
qualified immunity for the person who acquires an AED for
installation on the premises, this bill seeks to increase the
supply and availability of AEDs. This bill, which recently
passed the Assembly Business and Professions Committee by a vote
of 14-0, is supported by emergency medical care providers and,
because of recent amendments, the California Business Property
Owners Association. It has no opposition.
SUMMARY: Requires certain structures, whether owned or operated
by the state or any local government entity, that are
constructed on or after January 1, 2017 to have an AED on the
premises and exempts a person or entity acquiring the AED from
liability for civil damages resulting from certain use,
attempted use, or nonuse of an AED. Specifically, this bill:
1)Requires various structures with an occupancy of 200 or more
to have an automated external defibrillator (AED) on the
premises, specifically the following:
SB 287
Page 3
a) Assembly Group A buildings (those used for the gathering
of persons for purposes such as civic, social, or religious
functions with an occupancy of greater than 300, such as
banquet halls, auditoriums and theaters).
b) Business Group B buildings (those used for office,
professional, or service-type transactions, including
storage of records and accounts with an occupancy of 200 or
more, such as banks, salons, professional services offices,
some colleges).
c) Educational Group E buildings (schools) with an
occupancy of 200 or more;
d) Factory Industrial Group F buildings (used for
assembling, disassembling, fabricating, finishing,
manufacturing, packaging, repair or processing) with an
occupancy of 200 or more, including a building or
structure, or portion thereof that are not classified as a
Group H hazardous or Group S storage occupancy.
e) High-hazard Group H buildings with an occupancy of 200
or more, including a building or structure, or portion
thereof, that involves the manufacturing processing,
generation or storage of materials that constitute a
physical or health hazard in quantities in excess of those
allowed in control areas, as further defined.
f) Institutional Group I buildings with an occupancy of 200
or more, including a building or structure, or portion
thereof, in which care or supervision is provided to
persons who are or are not capable of self-preservation
without physical assistance or in which persons are
detained for penal or correctional purposes or in which the
liberty of the occupants is restricted (e.g. custodial care
facilities, hospitals, jails, prisons, nursing homes).
g) Mercantile Group M buildings with an occupancy of 200 or
more, including a building or structure, or portion
SB 287
Page 4
thereof, used for the display and sale of merchandise and
involving stocks of goods, wares or merchandise incidental
to such purposes and accessible to the public (e.g.
department stores, markets, retail stores).
h) Residential Group R buildings with an occupancy of 200
or more, including a building or structure, or portion
thereof, used for sleeping purposes when not classified as
Group I occupancy or when not regulated by the California
Residential Code (e.g. boarding houses, hotels, assisted
living facilities, social rehabilitation facilities, group
homes).
i) Storage Group S buildings with an occupancy of 200 or
more, including a building or structure, or portion
thereof, used for storage that is not classified as a
hazardous occupancy. The bill specifically exempts parking
garages.
2)Provides qualified immunity from any civil damages to a person
or entity that supplies an AED pursuant to this section.
3)Excludes single-family and multi-family dwelling units,
parking garages, and structures owned or operated by the state
or any local government entity from the above requirements.
4)Has delayed implementation, taking effect as of January 1,
2017.
EXISTING LAW:
1)Provides that a person or entity that acquires an AED for
emergency use is not liable for any civil damages resulting
from any acts or omissions when the AED is used to render
emergency care, provided that the person or entity has
SB 287
Page 5
complied with specified maintenance, training, and notice
requirements of Health and Safety Code Section 1797.196. All
statutory references are to the California Health and Safety
Code, unless otherwise indicated. (Civil Code Sec.
1714.21(d).)
2)Provides that any person or entity responsible for the site
where the AED is located, is not liable for any civil damages
resulting from any acts or omissions by the person who uses
the AED to render emergency care provided that the physician,
person, or entity has complied with applicable requirements of
Section 1797.196. (Civil Code Section 1714.21(e).)
3)Provides that the qualified immunities described above do not
apply in the case of personal injury or wrongful death which
results from the gross negligence or willful or wanton
misconduct of the person who uses the AED to render emergency
care. (Civil Code Section 1714.21(f).)
4)Provides that any person or entity that acquires an AED is not
liable for any civil damages resulting from any acts or
omissions in the rendering of the emergency care if that
person or entity complies with all regulations governing the
placement of an AED and ensures each of the following:
a) The AED is maintained and regularly tested according to
the operation and maintenance guidelines set forth by the
manufacturer, the American Heart Association, and the
American Red Cross, and according to any applicable rules
and regulations set forth by the governmental authority
under the federal Food and Drug Administration and any
other applicable state and federal authority;
b) The AED is checked for readiness after each use and at
least once every 30 days if it has not been used in the
preceding 30 days, and records of these checks are
maintained;
SB 287
Page 6
c) Any person who renders emergency care using the AED
activates the emergency medical services (EMS) system as
soon as possible, and reports any use of the AED to the
local EMS agency;
d) For every AED unit acquired up to five units, at least
one employee per unit must complete a training course in
cardiopulmonary resuscitation (CPR) and AED use and after
the first five AED units are acquired, for each additional
five units acquired, one employee is trained beginning with
the first unit acquired. Acquirers of AEDs shall have
trained employees who should be available to respond to an
emergency that may involve the use of an AED during normal
operating hours; and
e) There is a written plan describing the procedures to be
followed in the event of an emergency that may involve
using an AED. (Section 1797.196(b).)
5)Requires the following, where applicable:
a) If the AED is placed in a building, building owners must
annually provide tenants with a brochure describing the
proper use of an AED, and also ensure that similar
information is posted next to any installed AED;
b) If the AED is placed in a building, building owners must
notify tenants as to the location of AED units in the
building at least once a year; and
c) If an AED is placed in a public or private K-12 school,
the principal must annually provide school administrators
and staff with a brochure describing the proper use of an
AED, post similar information next to the AED, and
designate trained employees to be available to respond to
an emergency that may involve the use of an AED during
normal operating hours. (Section 1797.196(b).)
SB 287
Page 7
1)Provides that the qualified immunities do not apply in the
case of personal injury or wrongful death which results from
the gross negligence or willful or wanton misconduct of the
person who uses the AED to render emergency care. (Section
1797.196(e).)
2)Requires that the person or entity supplying an AED must: (a)
notify an agent of the local EMS agency of the existence,
location, and type of AED acquired; and (b) provide the AED
acquirer with information regarding the AED's use,
installation, operation, training, and maintenance. (Section
1797.196(c).)
3)Provides that nothing in the above sections (Health and Safety
Code Section 1797.196 or Civil Code Section 1714.21) may be
construed to require a building owner or a building manager to
acquire and install an AED in any building. (Section
1797.196(f).)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: An automated external defibrillator, or AED, is a
medical device that is used to administer an electric shock to
the heart of a person who has suffered cardiac arrest through
the person's chest wall. Built-in computers in an AED assess
the patient's heart rhythm, determine whether the person is in
cardiac arrest, and signal whether to administer the shock.
Audible cues guide the user through the process of using the
AED.
In 1999, in an effort to encourage the installation and use of
AEDs in commercial buildings, the Legislature provided qualified
immunity to commercial property owners who installed AEDs in
their buildings. That legislation (SB 911 (Figueroa), Ch. 163,
Stats. of 1999) put in place a number of requirements for
property owners who installed AEDs and Good Samaritans who use
them in order to obtain qualified immunity for civil liability
SB 287
Page 8
associated with the installation or use of the AED. This
Committee's analysis of SB 911 summarized the "training and
maintenance requirements for qualified immunity," as follows:
For AED operators: For the qualified immunity to apply, SB
911 would require the good samaritan operator to have
completed a basic CPR and AED use course within the preceding
12 months that complies with regulations adopted by the
Emergency Medical Services Authority (EMSA) and the standards
adopted by the American Heart Association or the American Red
Cross for CPR and AED use. Current EMSA regulations call for
a training class of not less than four hours covering, among
other topics: (1) the proper use, maintenance, and periodic
inspection of the AED; (2) the importance of CPR and
defibrillation; (3) assessment of an unconscious patient to
determine if cardiac arrest has occurred and the
appropriateness of using the AED; and (4) information as to
defibrillator safety precautions and training in determining
if further usage is necessary.
For businesses having AEDs on site: In order to qualify for
the bill's immunity protections, a business acquiring an AED
must satisfy all of the following conditions: (1) comply
with all regulations governing the training, use, and
placement of an AED; (2) notify the local EMS agency of the
existence, location and type of AED acquired; (3) ensure all
of the following: (i) that expected AED users annually
complete the required training for AED operators to qualify
for the immunity; (ii) that the defibrillator is maintained
and tested according to the manufacturer's operational
guidelines; (iii) that the owner conduct a readiness check
after each usage, and at least once every 30 days if the AED
has not been used in the preceding 30 days, and to keep
records of such checks; (iv) that the emergency medical
services system is activated as soon as possible when an
operator uses an AED, and that usage is reported to the local
EMS agency and the authorizing medical authority; and, (v)
SB 287
Page 9
that a licensed physician is involved in developing a program
to ensure compliance with the regulations and the
requirements for training, notification and maintenance.
Case Law Regarding the Duty of Businesses to Their Customers -
AED Installation. In Rotolo v. San Jose Sports and
Entertainment (2007) 151 Cal.App.4th 307, a lawsuit was brought
by the parents of a 17-year-old who experienced sudden cardiac
arrest and collapsed on the ice while participating in a hockey
tournament game on the south rink at Logitech Ice. Two event
bystanders, mothers of other participants in the event,
responded to the medical emergency. While they provided CPR to
the teen, 911 was called to report the incident to the
appropriate emergency responders. Sometime prior to this
incident one or more AED's had been acquired and installed at
the Logitech Ice facility. "Respondents had placed one AED on
the wall in the area near the penalty box of the south rink
where the teenager had collapsed. No one was aware that an AED
was installed and available for use close to the south rink.
Neither one of the referees officiating the game was aware of
the AED. Both [the mothers who performed CPR on Rotolo] had
been trained and certified in the use of AED's. However, no one
informed them that there was an AED nearby." The teenager did
not survive. (Id. at pp. 316-317.)
In that case, the Superior Court ruled in favor of the
defendants, holding that the Legislature had occupied the field
by enacting a number of detailed and comprehensive statutes
governing the acquisition and use of AEDs, which reflected
legislative policy to encourage the availability of AEDs by
providing immunity from liability for those who acquired the
devices, when they were used in an attempt to save a life.
Those who do install AED's in their buildings will not be
liable for damages resulting from the rendering of emergency
care with an AED, so long as certain requirements are met,
SB 287
Page 10
including maintenance, testing, posting and notice.
[Citations omitted.] The notice that is required is
specifically limited to tenants of the building where the AED
is located. [Citations omitted.] The only other notice
requirement set forth in these statutes is that the person or
entity that supplies an AED must notify the local emergency
services agency of its location. [Citations omitted.]
Nothing in these statutes requires that a building owner or
manager give notice to particular members of the public
expected to use the building. Furthermore, we believe the
imposition of such duties that are not clearly outlined in
the statutes would tend to discourage, rather than to
encourage, the voluntary acquisition of AED's, and would thus
defeat the underlying legislative purpose of promoting the
widespread use of these devices. (Rotolo v. San Jose Sports
and Entertainment, supra, at p. 314.)
The court also held that, under the common law, the duty of care
of a landlord (based on the special relationship to tenants and
invitees) had never been extended to impose an affirmative duty
like the parents sought to impose: to give notice to prospective
invitees about the existence and location of a medical device.
(Id. at pp. 314-315.)
Most recently, in 2014, at the request of the Ninth Circuit, the
California Supreme Court addressed the following certified
question: whether, under California law, the common law duty of
reasonable care that the defendant retailer owed to its business
customers included an obligation to obtain and make available on
its business premises an AED for use in a medical emergency.
Notably, that case, Verdugo v. Target Corporation (2014) 59
Cal.4th 312, overruled Rotolo to the extent that the case, in
dicta, stated broadly that the legislature has occupied the
field by enacting a number of detailed and comprehensive
statutes governing the acquisition and use of AEDs. (Id. at p.
334.)
SB 287
Page 11
In Verdugo, the lawsuit arose after a customer at Target
suffered sudden cardiac arrest and collapsed while shopping at a
Target department store in Pico Rivera, California. In response
to a 911 call, paramedics were dispatched from a nearby fire
station. It took the paramedics several minutes to reach the
store and a few additional minutes to reach Verdugo inside the
store and in the meantime, she died. Target did not have an AED
in its store. The deceased's mother and brother filed the
underlying lawsuit against Target, maintaining that Target
breached the duty of care that it owed to Verdugo, a business
customer, by failing to have on hand within its department store
an AED for use in a medical emergency.
There, the California Supreme Court held that the existing state
statutes on AEDs cannot properly be interpreted to preclude a
court from determining whether a business's common law duty to
exercise reasonable care with regard to the health and safety of
its customers includes, either in general or in particular
circumstances, an obligation to acquire and make available an
AED for use in a medical emergency. (Verdugo v. Target
Corporation, supra, at p. 321.) In light of the extent of the
burden that would be imposed by a requirement to acquire and
make available an AED and in the absence of any showing of
heightened foreseeability of sudden cardiac arrest or of an
increased risk of death, the Supreme Court held it was
appropriate under these circumstances to leave to the
legislature the policy decision whether a business should be
required to acquire and make available an AED for the protection
of its patrons. (Id. at p. 341.)
Qualified Immunity for Good Samaritans. In 2009, the
Legislature amended Section 1799.102 to provide that persons who
provide emergency care or assistance, whether medical or
non-medical, shall not be liable for damages caused by their
acts or omissions while rendering emergency care, so long as
their conduct does not constitute "gross negligence" or "willful
SB 287
Page 12
or wanton misconduct." (AB 83 (Feuer), Chap. 77, Stats. 2009.)
AB 83 was the Legislature's response to a decision by the
California Supreme Court, Van Horn v. Watson (2008) 45 Cal.4th
322. In the Van Horn case, Lisa Torti pulled her friend and
co-worker, Alexandra Van Horn, from a crashed vehicle in Los
Angeles, fearing the vehicle was about to catch fire or even
explode. Tragically, in doing so, Torti may have worsened Van
Horn's injuries. Van Horn later sued the driver, who in turn
sued Torti for exacerbating Van Horn's injuries. The Court held
that the state's "Good Samaritan" statute, when read as part of
the overall statutory scheme, only provided immunity to persons
with respect to medical care at the scene of an emergency and
did not apply to "non-medical" emergency assistance, such as
pulling a person from a potentially exploding automobile or a
burning building.
AB 83 clarified the general Good Samaritan statute (Section
1799.102), which provides immunity to all rescuers who render
emergency care at the scene of an emergency, so that immunity
applied as long as the care was rendered "in good faith and not
for compensation," regardless of whether the care is found to be
of a medical or non-medical nature. However, AB 83
appropriately clarified that such broad immunity is unavailable
to rescuers who engage in grossly negligent or willful or wanton
misconduct. The limited or "qualified" immunity adopted by AB
83 is a compromise meant to encourage altruistic behavior, but
still protect the public from grossly negligent or deliberately
harmful behavior.
Immunity Provision in this Bill. In order to encourage the
installation of AEDs on newly constructed business premises,
this bill includes the following immunity provision:
A person or entity that supplies an AED pursuant to this
section shall not be liable for any civil damages pursuant to
Section 1797.196 of this code and Section 1714.21 of the Civil
Code.
SB 287
Page 13
Meanwhile, Civil Code Section 1714.21 provides immunity from
civil liability for persons who "acquire" AEDs for installation
in existing private buildings. It provides that:
A person or entity that acquires an AED for emergency use
pursuant to this section is not liable for any civil damages
resulting from any acts or omissions in the rendering of the
emergency care by use of an AED if that person or entity has
complied with subdivision (b) of Section 1797.196 of the
Health and Safety Code. (Civil Code Section 1714.21 (d)(1).)
The immunity provisions should be identical, or at least very
similar, for newly constructed and existing commercial
buildings. But the immunity provision in this bill is not
similar to the provision regarding existing construction that is
in current law. For example, this bill does not require the
person who acquires the AED, as a condition of obtaining
immunity, to comply with various notice and training
requirements set forth in Health and Safety Code Section
1797.196, including for example, the following:
For every AED unit acquired up to five units, no less than one
employee per AED unit shall complete a training course in
cardiopulmonary resuscitation and AED use that complies with
the regulations adopted by the Emergency Medical Service
Authority and the standards of the American Heart Association
or the American Red Cross. After the first five AED units are
acquired, for each additional five AED units acquired, one
employee shall be trained beginning with the first AED unit
acquired. Acquirers of AED units shall have trained employees
who should be available to respond to an emergency that may
involve the use of an AED unit during normal operating hours.
(Health and Safety Code Section 1797.196(a)(2)(D).)
SB 287
Page 14
Because of the current wording of the immunity provision, none
of the requirements of the Civil Code Section are conditions of
the immunity provided in this bill. Furthermore, as currently
in print, this bill provides immunity to a "supplier" of an AED.
The Legislature does not consider it appropriate to grant
immunity from civil liability to the "supplier" of an AED. As
Civil Code Section 1714.21(g) provides, "Nothing in this section
shall relieve a manufacturer, designer, developer, distributor,
installer, or supplier of an AED or defibrillator of any
liability under any applicable statute or rule of law." The
author indicates that it is his intent to only provide immunity
from liability to persons who "acquire" and AED. Therefore, in
order to clarify that the same standards apply, the author has
agreed to the following clarifying amendment, making the
immunity provision virtually identical to Civil Code Section
1714.21(d)(1):
A person or entity that supplies acquires an AED for emergency
use pursuant to this section shall not be liable for any civil
damages resulting from any acts or omissions in the rendering
of the emergency care by use of an AED if that person or
entity has complied with subdivision (b) of pursuant to
Section 1797.196 of this code and Section 1714.21 of the Civil
Code .
Local Ordinances. Of note, in December 2008, the San Diego City
Council voted unanimously to require defibrillators in all new
buildings with more than three stories or more than 10,000
square feet; in places of assembly with capacity for more than
300 people; and in educational facilities with 200 or more
students. That legislation reportedly "covers practically all
new commercial buildings; medical, dental, and outpatient
clinics; hotels; motels; restaurants; schools; theaters;
churches; and warehouses." The municipal building code requires
new buildings to be prewired during construction for dedicated
wall mounts for AED systems with self-testing alarms, similar to
requirements for installations of sprinkler systems and fire
alarms. Also under that code, building owners are required to
register their AED equipment with the fire rescue department,
SB 287
Page 15
test it annually, and notify the fire department each time the
device is used. (Madaffer, For Safety's Sake, Occupational
Health & Safety (Feb. 2009)
[as of May 6, 2015]; see also San Diego Municipal Code, Chapter
14, Article 5, Division 39: Automated External Defibrillators,
Secs. 145.3901 - 145.3935,
[as of May 6, 2015].)
Recent Amendments Remove Opposition. The bill was recently
amended in the Assembly Business and Professions Committee to
exempt storage, high-hazard buildings, use occupancy
classifications, and licensed healthcare facilities from
requirements of the bill, and to become operative on January 1,
2017. The purpose of exempting those building classifications,
according to the analysis of this bill by the Business and
Professions Committee, was because they "tend to be more
associated with industrial uses, rather than the types of public
places in which the bill seeks to increase the availability of
AEDs" or, in the case of licensed health care facilities which
"already employ the use of AEDs and other similar lifesaving
devices, the author may wish to explicitly exempt these
facilities from the requirements of this bill."
As a result of the recent amendments, the California Business
Properties Association (CBPA), which formerly opposed the bill,
now supports SB 287. According to the CBPA:
SB 287 (Hueso) which would require installation of Automatic
External Defibrillators (AED) in certain new commercial
buildings after January 1, 2017. We appreciate recent
amendments to the bill which have addressed concerns regarding
policy and operational issues.
SB 287
Page 16
Because of the life-saving potential of AEDs and their proven
efficacy, our industry has been working to increase
accessibility of these devices in public places where cardiac
arrest may be a significant risk. Many of our members
currently have them installed in their buildings.
However, SB 287 will require installation of AED's in certain
commercial buildings with max occupancies of 200 or more that
are constructed and occupied on or after January 1, 2017. This
will ensure that more employees, tenants, and guests will have
access to these devices when needed.
Pending Similar Legislation. SB 658 (Hill) expands the immunity
provisions in existing law for use of an AED by removing, as a
condition of immunity, the requirement that a person or entity
acquiring AEDs comply with specified maintenance, training, and
notice requirements and requires that a person or entity
acquiring an AED need only meet certain minimal maintenance and
notice requirements, and would repeal training requirements from
existing law. SB 658 passed this Committee and, as of the date
of this analysis, is pending on the Assembly Floor.
Prior Similar Legislation. SB 911 (Figueroa, Ch. 163, Stats.
1999) created a qualified immunity from civil liability for
trained persons who use AEDs in good faith and without
compensation when rendering emergency care or treatment at the
scene of an emergency. The bill also provided for immunity from
liability for persons or entities that acquire an AED, provided
that the person or entity has complied with specified
maintenance, training, and notice requirements. The immunity
does not apply in cases of personal injury or wrongful death
resulting from gross negligence or willful or wanton misconduct.
AB 2041 (Vargas, Ch. 718, Stats. 2002) expanded this immunity by
relaxing the requirement that building owners must ensure that
expected AED users complete training.
SB 287
Page 17
AB 1507 (Pavley, Ch. 431, Stats. 2005) required health studios
to acquire, maintain, and train personnel in the use of AEDs. AB
1507 specifically applied most of existing law to health studios
but made the acquisition of AEDs mandatory rather than voluntary
until July 1, 2012.
SB 127 (Calderon, Ch. 500, Stats. 2010) extended the health
studios' AED mandate.
SB 1436 (Lowenthal, Ch. 71, Stats. 2012) deleted the sunset,
thereby indefinitely extending the requirement for health
studios to acquire, maintain, and train personnel in the use of
AEDs.
REGISTERED SUPPORT / OPPOSITION:
Support
American Heart Association
American Medical Response
American Stroke Association
California Business Properties Association
California Professional Firefighters
California State Firefighters Association
Paramedics Plus
San Diego Project Heart Beat
San Ysidro Health Center
San Diego City Firefighters Local 145
Opposition
None on file
SB 287
Page 18
Analysis Prepared by:Alison Merrilees / JUD. / (916)
319-2334