Day on Torts
In Wallis v. Brainerd Baptist Church, No. E2015-01827-SC-R11-CV (Tenn. Dec. 22, 2016), the Tennessee Supreme Court analyzed claims against the seller of an AED, and though the claims were framed in the context of the decedent being a third-party beneficiary of the contract between the seller and owner of the AED, the Court engaged in quite a bit of analysis surrounding the duties implicated by the sale and/or ownership of an AED.
In 2008, defendant church had purchased four AEDs from defendant ExtendLife, one of which one placed in a fitness facility owned and operated by the church. When the church purchased the machines, they also purchased the Physician Oversight Program Management System, which outlined certain services that ExtendLife would provide to the church. In addition, as part of the purchase, ExtendLife provided four complimentary training sessions for CPR, AED and Emergency Oxygen Administration certifications. The church utilized three of these four sessions, but the final session was cancelled due to low attendance.
More than two years later, in January 2011, plaintiff and her husband joined the church’s fitness facility. In August of that year, the husband took a cycling class and then collapsed. The class instructor attended to the husband, thinking he was suffering from a seizure, and she was eventually assisted by two off-duty police personnel who were at the facility. These men asked the instructor to retrieve the nearest AED, which she did, but the machine was not used on husband. An ambulance arrived shortly thereafter and transported husband to the hospital, where he died.
Plaintiff initially filed suit against the church for negligence and negligence per se (the negligence per se claim was dismissed on summary judgment, as the trial court concluded that “the AED statutes do not afford a private right of action”). The church then filed a third-party complaint against ExtendLife, alleging that its contractual agreement with the company required ExtendLife to “maintain a physician oversight program of the training and facilities and to oversee all compliance with federal, state, and local regulations regarding the use of AEDs.” After this third-party complaint was filed, plaintiff filed an amended complaint naming ExtendLife as a defendant, asserting both a direct negligence and a third-party beneficiary breach of contract claim.
ExtendLife filed a motion for summary judgment as to all claims asserted against it, which the trial court denied, finding that there were genuine issues of material fact. The trial court, though, granted ExtendLife’s motion for interlocutory appeal. The Court of Appeals declined the application for appeal, but the Supreme Court granted permission to appeal under Rule 11 of the Tennessee Rules of Appellate Procedure.
Although plaintiff’s appellate brief appeared to rely on the Restatement (Second) of Torts to support her direct negligence claim against ExtendLife, plaintiff had not made that argument in the lower courts. Thus, the Supreme Court “declined to accept [her] invitation to reframe the issues in this manner,” and focused on plaintiff’s third-party beneficiary claim.
In order for a third-party to recover under a contract, he or she must prove “from the terms of the contract or the circumstances surrounding its execution, that, at the time of contracting, he was an intended third-party beneficiary of the contract.” (internal citation omitted). A person not a party to the contract
may be deemed an intended third-party beneficiary of a contract…if:
(1) The parties to the contract have not otherwise agreed;
(2) Recognition of a right to performance in the third party is appropriate to effectuate the intention of the parties; and
(3) The terms of the contract or the circumstances surrounding performance indicate that either:
(a) the performance of the promise will satisfy an obligation or discharge a duty owed by the promisee to the third party; or
(b) the promise intends to give the third party the benefit of the promised performance.
In the present case, part (1) was “satisfied because the parties did not expressly exclude third parties from the benefits of the contract,” so the Court focused its opinion on part (3), which involved a detailed analysis of the duties involved in this matter.
First, the Court looked at whether any Tennessee statutes created a duty on the part of either the church or ExtendLife, finding that they did not. The Court noted that “Tennessee has adopted statutes intended to increase the availability of AEDs,” and that “Tennessee’s AED statutes only encourage businesses and other entities to acquire and make AEDs available for use in emergency situations. They do not impose any mandatory duty on businesses to do so, nor do they mandate that businesses use AEDs after they are acquired.” Thus, the Court held that “at the time of contracting, the Church had no statutory duty to [husband] to acquire and make an AED available for use, nor did the Church have a statutory duty to use the AED it had already acquired.”
Next, the Court analyzed whether a common law duty existed, finding that it did not. The Court looked at the common law principle that while “the law generally does not impose on individuals an affirmative duty to aid or protect others,” the relationship between business owner and patron is considered a special relationship creating a duty that “requires the business entity to take reasonable action to protect or aid a patron who sustains injury or becomes ill on business premises.” (internal citation omitted). The Court pointed out, however, that “a business entity’s duty to render aid does not extend to providing all medical care that a business could reasonably foresee might be needed by its patrons or to provide the sort of aid that requires special training to administer.”
In looking at the facts of this specific case, the Supreme Court noted that “no Tennessee court has previously considered whether a business entity’s duty to aid and protect its patrons requires it to acquire and make an AED available for use or to use an AED that has already been acquired.” While acknowledging that this was still a developing area of law, the Court stated that most other jurisdictions “have held that even after a business acquires an AED, the business’s common law duty to render aid to patrons does not include use of the AED.” (internal citations omitted). Ultimately, the Court decided to follow this line of cases and held that “the Church had no common law duty to [husband] to acquire an AED or to make it available for use, or to use it.” Because there was no statutory or common law duty at the time the contract was entered into “which the contract was intended to satisfy,” the Court ruled that plaintiff could not prevail on her third-party beneficiary claim. Thus, the Court ruled that ExtendLife was entitled to summary judgment as to plaintiff’s claims against it.
Likewise, the Court ruled that ExtendLife was entitled to summary judgment on the cross-complaint filed by the Church based on the same reasons. The Court disposed of this portion of the case rather summarily, stating that the church had no statutory duty so it could not be held liable for failing to comply with AED statutes, and that even if the church had a duty, ExtendLife would be entitled to summary judgment because the AED was not actually used in the instant matter.
While this case focused largely on third-party beneficiary law, the findings the Supreme Court made regarding businesses not having a duty to obtain or use a previously obtained AED could have great impact on future cases. AEDs are becoming more and more common, and we are likely to see more cases involving either their use or the lack thereof. Under this case, it looks like Tennessee may be hesitant to hold businesses liable for their employees’ decisions regarding when to use AEDs, so it will be interesting to see how this area of law develops.