# Rotolo v. San Jose Sports & Entertainment, LLC > California Court of Appeal · May 24, 2007 · 59 Cal. Rptr. 3d 770 URL: https://www.frixlaw.com/law-library/cases/9746165 ## Case - **Full name:** CHRISTINE ROTOLO Et Al., Plaintiffs and Appellants, v. SAN JOSE SPORTS AND ENTERTAINMENT, LLC, Et Al., Defendants and Respondents - **Court:** California Court of Appeal - **Decided:** May 24, 2007 - **Citations:** 59 Cal. Rptr. 3d 770; 151 Cal. App. 4th 307; 2007 Cal. Daily Op. Serv. 5929; 2007 Cal. App. LEXIS 843 - **Precedential status:** Published - **Opinion:** Dissent by McADAMS - **Judges:** Bamattre-Manoukian, McAdams - **Cited by:** 41 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Disapproved on other grounds by Verdugo v. Target Corp., 59 Cal. 4th 312 (2014). - Negative treatments: 2 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9746165 ## How later opinions describe it (automated extraction) - stating that courts “have no power to rewrite a statute by implying additional provi *486 sions we believe would further legislative purpose” and “[t]his rule of judicial restraint is particularly appropriate where the statutes, as here, are detailed and comprehensive” - stating that courts "have no power to rewrite a statute by implying additional provisions we believe would further legislative purpose" and "[t]his rule of judicial restraint is particularly appropriate where the statutes, as here, are detailed and comprehensive" - holding that special relationship between operators of sports facility and hockey players did not create a duty to notify users of the facility of the existence and location of AEDs at the facility - stating that courts “have no power to rewrite a statute by implying additional provi sions we believe would further legislative purpose” and “[t]his rule of judicial restraint is particularly appropriate where the statutes, as here, are detailed and comprehensive” - rejecting application of undertaker’s doctrine to create a duty to make an AED available and/or use it on a teenage hockey player based on a hockey arena’s installation of an AED therein ## Opinion text McADAMS, J., Dissenting. I respectfully dissent. This is not a case about the immunity statutes related to the acquisition and use of an automatic external defibrillator (AED). This is not a case about assumption of risk inherent in sports activities. This is not a case ábout a third party criminal attack or an ill restaurant customer. This case involves a business entity that invites patrons to use its facilities for an activity known to have a high risk of injury—ice hockey—yet fails to have an emergency response plan in place in the event of injury and fails to inform those engaged in or supervising such high-risk activity of an emergency plan or the availability of emergency equipment in the event of injury. “A possessor of land who holds it open to the public” is under a duty to “members of the public who enter in response to [the possessor’s] invitation” to “protect them against unreasonable risk of physical harm, and . . . to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.” (Rest.2d Torts, § 314A.) Our Supreme Court has recognized the “special relationship” that exists between business proprietors and their patrons and invitees! (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 237 [ 30 Cal.Rptr.3d 145 , 113 P.3d 1159 ].) This relationship creates a duty to maintain the premises in their possession and control “in a reasonably safe condition.” (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 [ 25 Cal.Rptr.2d 137 , 863 P.2d 207 ].) This general maintenance duty includes the obligation to protect patrons and invitees by taking reasonable steps to prevent foreseeable harm to them (Delgado v. Trax Bar & Grill, at p. 237) and by assisting, in some appropriate and reasonable manner, when those using the commercial premises face imminent danger or harm. (Morris v. De La Torre (2005) 36 Cal.4th 260 [ 30 Cal.Rptr.3d 173 , 113 P.3d 1182 ].) The operative pleadings here (plaintiffs’ third amended complaint and various judicially noticed discovery responses) 1 alleged that when the teenage *341 hockey player suffered cardiac arrest and collapsed on the ice, bystanders called 911 and immediately responded to him, including two adults who were trained and certified in the use of an AED. Plaintiffs alleged that no one was aware of or informed about the existence and placement of an AED acquired by defendants (located just 20 feet away from the fallen boy). Plaintiffs also asserted that defendants “did not respond to the medical emergency or set in motion any medical emergency response.” However, there was a call placed to 911 by someone connected to the facility. The complaint further alleged that defendants “engaged in the management and provision of space to be used in athletic events involving a high amount of exertion as well as possible collision and injury,” yet they failed to have an emergency plan or provide any information, notice or warning to invitees, participants, officials, et cetera, of such a plan. Recognizing a duty on the part of the ice hockey rink under the circumstances alleged here is consistent with the principles expressed by the California Supreme Court. On balance, the factors to be considered in analyzing the existence and scope of a duty, as set forth in the landmark case of Rowland v. Christian (1968) 69 Cal.2d 108, 113 [ 70 Cal.Rptr. 97 , 443 P.2d 561 ], weigh heavily in favor of finding a duty under the circumstances here: the high foreseeability of harm and the degree of certainty of injury, the fact that the risk arises from the very activity for which patrons are invited and from which defendants derive a direct commercial benefit (as compared to third party criminal conduct or other extraneous or remote causes), and the minimal burden to such a commercial enterprise in imposing a duty to do nothing more than create and disseminate an emergency plan. The fact that the injury arises during participation in a sports activity should not affect this duty. The sports injury/assumption of risk cases may absolve business proprietors from liability for the occurrence of an injury inherent in the sport, but these cases should not immunize facilities or other responsible persons or entities from any responsibility in regards to rendering aid to an injured player in an appropriate and reasonable manner. It should be noted that my analysis places no weight on whether defendant installed an AED or not. I acknowledge there is no duty to acquire and use an AED under Civil Code section 1714.21 and Health and Safety Code section 1797.196. In spite of any argument plaintiffs may have made as to a more limited duty, my analysis focuses on the failure to have an emergency plan or to disseminate information concerning the location and availability of whatever emergency equipment may have been present at the ice rink (whether an AED or any other equipment) in the face of high-risk activity resulting in injury. *342 Having recognized a duty under these circumstances, 2 I find that plaintiffs’ pleadings were sufficient to overcome the demurrer. I would reverse. Appellants’ petition for review by the Supreme. Court was denied August 15, 2007, S153997. Kennard, J., was of the opinion that the petition should be granted. *343 APPENDIX Civil Code section 1714.21 provides: “(a) For purposes of this section, the following definitions shall apply: “(1) ‘AED’ or ‘defibrillator’ means an automated or automatic external defibrillator. “(2) ‘CPR’ means cardiopulmonary resuscitation. “(b) Any person who, in good faith and not for compensation, renders emergency care or treatment by the use of an AED at the scene of an emergency is not liable for any civil damages resulting from any acts or omissions in rendering the emergency care. “(c) A person or entity who provides CPR and AED training to a person who renders emergency care pursuant to subdivision (b) is not liable for any civil damages resulting from any acts or omissions of the person rendering the emergency care. “(d) 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. “(e) A physician who is involved with the placement of an AED and any person or entity responsible for the site where an AED is located is not liable for any civil damages resulting from any acts or omissions of a person who renders emergency care pursuant to subdivision (b), if that physician, person, or entity has complied with all of the requirements of Section 1797.196 of the Health and Safety Code that apply to that physician, person, or entity. “(f) The protections specified in this section do not apply in the case of personal injury or wrongful death that results from the gross negligence or willful or wanton misconduct of the person who renders emergency care or treatment by the use of an AED. “(g) 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.” Health and Safety Code section 1797.196 provided in 2004, at the time of the incident on which this lawsuit is based, as follows: *344 “(a) For purposes of this section, ‘AED’ or ‘defibrillator’ means an automated or automatic external defibrillator. “(b) In order to ensure public safety, 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 under subdivision (b) of Section 1714.21 of the Civil Code, if that person or entity does all of the following: “(1) Complies with all regulations governing the placement of an AED. “(2) Ensures all of the following: “(A) That 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) That the AED is checked for readiness after each use and at least once every 30 days if the AED has not been used in the preceding 30 days. Records of these checks shall be maintained. “(C) That any person who renders emergency care or treatment on a person in cardiac arrest by using an AED activates the emergency medical services system as soon as possible, and reports any use of the AED to the licensed physician and to the local EMS agency. “(D) 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. “(E) That there is a written plan that describes the procedures to be followed in the event of an emergency that may involve the use of an AED, to ensure compliance with the requirements of this section. The written plan shall include, but not be limited to, immediate notification of 911 and trained office personnel at the start of AED procedures. *345 “(3) Building owners ensure that tenants annually receive a brochure, approved as to content and style by the American Heart Association or American Red Cross, which describes the proper use of an AED, and also ensure that similar information is posted next to any installed AED. “(4) No less than once a year, building owners will notify their tenants as to the location of AED units in the building. “(c) Any person or entity that supplies an AED shall do all of the following: “(1) Notify an agent of the local EMS agency of the existence, location, and type of AED . acquired. “(2) Provide to the acquirer of the AED all information governing the use, installation, operation, training, and maintenance of the AED. “(d) A violation of this provision is not subject to penalties pursuant to Section 1798.206. “(e) The protections specified in this section do not apply in the case of personal injury or wrongful death that results from the gross negligence or willful or wanton misconduct of the person who renders emergency care or treatment by the use of an AED. “(f) Nothing in this section or section 1714.21 may be construed to require a building owner or a building manager to acquire and have installed an AED in any building. “(g) This section shall remain in effect only until January 1, 2008, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2008, deletes or extends that date.” Health and Safety Code section 1797.196 was amended in 2005 to add a subdivision specifically regarding AED’s in public or private schools (new subd. (b)(5)), and to make some minor changes in wording. It was again amended in 2006 to extend the sunset date. The trial court granted defendants’ request for" judicial notice of plaintiffs’ prior pleadings and certain discovery responses. This is not an issue on appeal. The issue of any duty of protection and assistance imposed on those sponsoring or officiating this high-risk activity is not before us. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9746165. Public record. Not legal advice.