In Miglino v. Bally Total Fitness of Greater New York, New York’s High Court addressed the issue of whether General Business Law §627-a creates an independent duty to use automated external defibrillators (“AEDs”) in the face of a medical emergency. By way of background, GBL §627-a requires health clubs to have AEDs and employees trained and certified in their use. In Miglino, New York’s highest court held that this statute does not create any such duty and exonerated a health club and its certified employee for failing to use the club’s AED in the face of a cardiac event.
The Court of Appeals recognized the statute’s limitation of liability when health clubs and their agents voluntarily provide aid to their members and determined that the legislature did not intend to impose liability on health clubs for failing to use their AEDs. Moreover, the Court noted that to hold otherwise would spawn a whole new field of tort litigation and create increased costs, uncertainty and difficulty for health clubs.
In addition, the Court of Appeals emphasized that the common law imposed only a limited duty on health clubs during a medical emergency. The common law only requires that health clubs call 911 and provide basic CPR or defer to an individual with medical experience.
Thanks to Alison Weintraub for her contribution to this post. If you have any questions or comments, please email Paul Clark at
New Jersey Governor Chris Christie recently signed “Janet’s Law,” which requires New Jersey public and non-public schools to have an automated external defibrillator (AED), to train school officials and coaches on the use of AEDs, and to establish emergency action plans for responding to sudden cardiac events. The law also requires that the mandated AEDs be maintained in accordance with the previously passed law on AED acquisition and maintenance (section 3 of P.L. 1999, C.34 (C.2A:62A-25)). Janet’s Law will take effect on September 1, 2014 and effects schools that include grades kindergarten through 12.
We believe this law sets a new standard for schools, and will lead to additional claims against schools and school districts that are not in compliance with the law. We note that previous versions of the law were more detailed and expansive, and called for AEDs at youth recreational facilities and camps as well as the education of students on various health topics. The new legislation makes clear that the standard for AEDs is now different for youth recreational facilities and camps as opposed to public and non-public schools.
Janet’s Law imposes an additional burden on elementary, middle and high schools. However, AEDs are already required in many large places of public accommodation, such as airports and healh clubs, and have been proven to be effective tool in saving lives during sudden cardiac events. Prudent underwriters should inquire in the application process and pre-risk surveys about the presence of AEDs at schools located in New Jersey that they insure.
Thanks to Alison Weintraub for her contribution to this post. If you have any questions, please email Paul at
Steven Domalewski, age 12, was injured when struck by a batted ball while pitching in a PAL game on June 6, 2006. The line drive struck him and induced a commotio cordis event that sent Domalewski’s heart into ventricular fibrillation. This catastrophic condition is triggered by the confluence of four factors: (1) a blow delivered at a precise moment in the cardiac cycle; (2) within a tight range of speeds; (3) to the chest wall directly over the silhouette of heart; and (4) by a hard object, in this case, a batted baseball.
The Wayne PAL employees and volunteers came to Domalewski’s aid almost immediately, by both calling 911 and initiating CPR until the trained first responders took over young Steven’s care. Though the Wayne PAL owned an automated external defibrillator (“AED”), it was never used on Domalewski while manual CPR efforts continued on the field by a coach, bystander and first responders. However, the trained and certified first responders did not use their AED on Domalewski while initially working on him, and he was later cardioverted only after he was placed inside the ambulance that responded to the scene.
Domalewski survived the accident, which was statistically unlikely, but suffered a severe hypoxic ischemic brain injury. As a result, Steven requires 24 hour care and highly specialized medical treatment. His parents commenced suit against Hillerich and Bradsby Co. d/b/a Louisville Slugger (“H&B”) and Little League Inc. (“LLI”), H&B for manufacturing an allegedly defective baseball bat, and LLI for granting H&B the license to stamp the bat “approved for play in Little League” allegedly without performing any safety tests before such approval was granted. H&B and LLI, in turn, commenced a third party action against the Wayne PAL claiming that it was grossly negligent in failing to use its available AED, failing to have a written safety plan and failing to have proper field dimensions.
After the close of intensive and lengthy discovery, the Wayne PAL moved for summary judgment based New Jersey’s Charitable Immunity Act. The court granted the Wayne PAL’s motion and held that the organization fulfilled its required duty of care when it summoned emergency help and that, even if true, the failure to have a written safety plan and proper field dimensions did not constitute gross negligence or cause the plaintiff’s accident and injuries as a matter of law.
After the Wayne PAL’s dismissal, the plaintiff, H&B and LLI reached a settlement for $14,500,000 that made national headlines and was reported, for example, in the New York Times and ESPN. No appeal of the summary judgment decision in favor of the Wayne PAL is anticipated.
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