March 2018 - Parks & Recreation - 32

L AW R E V I E W

from purchasing AED devices in the first
place to avoid increased liability exposure.
The appeals court, therefore, found
" no common-law duty owed to the plaintiff " to place, maintain and use an available AED device.
Restatement Duty of Care
On appeal, plaintiff had further argued
that " section 314A Restatement (Second)
of Torts, creates a common-law duty on
defendant to render aid by administering an AED device to the plaintiff decedent. " (A Restatement is an authoritative
treatise, issued by the American Law
Institute, which summarizes the general common-law principles of traditional
tort law in the United States. A Restatement does not have the force of law in
and of itself, but it obtains legal authority
when adopted by the courts.)
As described by the appeals court, section 314A Restatement (Second) of Torts
provided the following:
The defendant is not required to take any
action until he knows or has reason to know
that the plaintiff is endangered, or is ill or
injured. He is not required to take any action
beyond that which is reasonable under the
circumstances. In the case of an ill or injured
person, he will seldom be required to do more
than give such first aid as he reasonably can,
and take reasonable steps to turn the sick man
over to a physician, or to those who will look
after him and see that medical assistance is obtained. Restatement (Second) of Torts § 314A,
Comment f, at 120 (1965).
Similarly, the appeals court noted that
" a possessor of land who holds it open to
the public is under a duty to members of
the public to protect them against unreasonable risk of physical harm, and give
them first aid after it knows or has reason
to know that they are ill or injured. "
However, in the opinion of the appeals
court, " [t]he use of a defibrillator requires
specific training, and we believe that its
use is far beyond the type of 'first aid' con30

Parks & Recreation

templated by Restatement section 314A. "
As a result, the appeals court concluded defendant country club " owed plaintiff no common-law duty to use an AED
device on plaintiff decedent. "
[W]e cannot say that defendant in the present case had a common-law duty to use the
AED device on plaintiff decedent as the use
of such a device is not the type of first aid contemplated by the Restatement section 314A,
even though plaintiff assures us that such a
device is quite 'foolproof.'
The appeals court, therefore, affirmed the judgment of the trial court
dismissing Wing's claim against the
defendant country club.

According to the appeals
court, CPR would be
considered more than
mere " first aid " because it
requires training...
No Skilled Treatment Required
In the case of L.A. Fitness International,
LLC. v. Mayer, 980 So.2d 550 (Fla.App.
4/23/2008), plaintiff Julianna Mayer alleged defendant fitness center had negligently failed to render aid during a medical emergency. Mayer's father, Alessio
Tringali, died because of a cardiac arrest
he suffered while using a stepping machine at L.A. Fitness in Oakland Park,
Florida. In response, L.A. Fitness argued
that it had satisfied its duty to render assistance to the deceased as a matter of
law when it promptly summoned professional medical assistance for him. A jury
returned a verdict in favor of Mayer as
the representative of her father's estate.
L.A. Fitness appealed.

| M A R C H 2 0 1 8 | W W W. PA R K S A N D R E C R E AT I O N . O R G

Robert Strayer, an L.A. Fitness sales representative, testified that he was sitting at
his desk at the Oakland Park L.A. Fitness
around 9 p.m. on April 3, 2003, when he
heard someone call for help. Strayer got up
from his desk, told the receptionist to call
911 and ran to the back of the gym. Strayer
observed Alessio Tringali lying on his back
surrounded by L.A. Fitness patrons.
According to Strayer, Tringali was bleeding from a cut on his head and shaking from
small convulsions. Strayer, who was certified in CPR, believed Tringali was having a
seizure or a stroke. Because Strayer believed
Tringali had fallen off a nearby stepping
machine and may have sustained a concussion to his head or hurt his neck or back,
he did not perform a " chin tilt " to open
his airway, which is one of the first steps in
CPR. Based on his observations and belief
that Tringali was having a seizure or stroke,
Strayer decided not to attempt CPR and
possibly make matters worse.
An EMT for the City of Oakland Park
Fire Rescue testified she responded to
L.A. Fitness with two other EMTs. The
EMT testified that Fire Rescue received a
call from L.A. Fitness at 9:18 p.m., and
arrived at L.A. Fitness at 9:21 p.m. EMTs
shocked the defendant with an AED at
9:21 p.m. and then again at 9:24 p.m. but
were unable to re-establish a pulse.
Medical experts testified that, more likely
than not, Tringali would have been revived
by paramedics if he had been given CPR by
L.A, Fitness employees. On the other hand,
these medical experts also testified that a
layperson could easily confuse gasping with
breathing and shaking of the head, as observed by Strayer, with seizures.
To resolve this case, the appeals court
would determine the nature and scope of
the duty a health club or gym owes to a
patron who is injured while exercising on
its premises. In so doing, the appeals court
found a " special relationship " existed between L.A. Fitness and its members. As
a result, as with any business owner, L.A.

March 2018 - Parks & Recreation

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