California Rule of Court 8.548 permits the Ninth Circuit to certify questions of California state law to the California Supreme Court. On average, this happens a handful of times per year. Over the past five years, the California Supreme Court has agreed to answer a majority of the questions certified to it by the Ninth Circuit.
This article addresses two recently certified questions that are particularly important to California businesses.
Do California Businesses Have a Common Law Duty to Maintain Defibrillators On-Site?
In Verdugo v. Target Corp., Target was sued after Mary Ann Verdugo collapsed from sudden cardiac arrest on August 31, 2008, and died at Target’s Pico Rivera location. Ms. Verdugo’s family argued that, under California law, Target had a duty to have an Automatic External Defibrillator (AED) on-site in case one of its customers had an episode of sudden cardiac arrest and needed emergency aid. Under California Health and Safety Code § 1797.196 and California Civil Code § 1714.21(d), businesses that maintain an AED on their premises, are provided immunity under specified circumstances from civil liability for acts or omissions committed in the rendering of emergency care by use of a defibrillator. On December 11, 2012, the Ninth Circuit certified to the California Supreme Court the question of whether Target had a common law duty to maintain an on-site defibrillator to treat victims of sudden cardiac arrest.
On June 23, 2014, the California Supreme Court said no. See Verdugo v. Target Corp., 59 Cal. 4th 312, 327 (2014). The Court based its decision on the fact that in evaluating whether a business is under a duty to provide precautionary measures to protect patrons against third-party criminal conduct, California cases look at (1) the degree of foreseeability that the danger will arise on the business’s premises and (2) the relative burden that providing a particular precautionary measure will have on the business. Id. at 337-38. The Court concluded that acquiring and maintaining AEDs imposed significant obligations with respect to the number, the placement, ongoing maintenance, and training of personnel, and posed more than a minor burden, while there was no showing of heightened foreseeability of sudden cardiac arrest or of an increased risk of death. Id. at 337-41. The Court also cited the fact that every state appellate court that confronted the legal question of whether a business’s common law duty to assist patrons who suffer from sudden cardiac arrest requires the acquisition and
maintenance of AEDs, have concluded that no such obligation exists. Id. at 337.
Although the Verdugo court did not conclude that California common law required Target to acquire and maintain AEDs on their premises, courts in the future may force businesses to take on precautionary measures in other situations to prevent injury to their patrons where the obligations are minimal and there is a high degree of foreseeability with respect to the particular medical risk at issue.
Do Statutes That Prohibit Discrimination Against the Disabled Also Apply to Business Websites?
Update: On October 10, 2014, the Ninth Circuit withdrew its request for certification in Greater Los Angeles Agency on Deafness, Inc. v. Cable News Network, Inc., after CNN filed a motion to voluntarily dismiss its appeal. Consequently, the question of whether business websites need to be accessible to persons with disabilities will not likely be decided by the California Supreme Court.
Title III of the Americans with Disabilities Act (ADA) along with California’s Disabled Persons Act and the Unruh Act have been the basis of lawsuits alleging that businesses need to make changes to their physical premises to provide greater access to the disabled. In Greater Los Angeles Agency on Deafness, Inc. v. Cable News Network, Inc., 742 F.3d 414 (9th Cir. 2014), the Ninth Circuit grappled with the question of whether the Disabled Persons Act applies to non-physical spaces such as websites. This question arose because the Greater Los Angeles Agency on Deafness, Inc. (GLAD), a nonprofit organization advocating for persons who are deaf and hard of hearing, sued CNN for not captioning some of the videos that appeared on its website.
At the district court, CNN failed to dismiss the complaint on anti-SLAPP grounds. Id. at 421. CNN then appealed the denial of its motion to dismiss to the Ninth Circuit, arguing that the Disabled Persons Act only applied to websites that were associated with brick and mortar stores. Id. at 433-34. Unsurprisingly, GLAD disagreed with this interpretation of the statute. On February 5, 2014, the Ninth Circuit certified to the California Supreme Court the question of whether the Disabled Persons Act applies to non-physical places such as websites. Greater Los Angeles Agency on Deafness, Inc. v. Cable News Network, Inc., 742 F.3d 871 (9th Cir. 2014). And on March 26, 2014, the California Supreme Court granted that request. The application of disability access laws to websites has been at issue for quite some time. The U.S. Department of Justice has long taken the position that the ADA applies to websites. For example, in Rendon v. Valleycrest Productions, Inc., 294 F.3d 1279 (11th Cir. 2002), the Department argued against the requirement that a nexus must exist between the discriminatory conduct and a brick and mortar facility for liability to be imposed under Title III of the ADA. In 2010, the Department published an Advanced Notice of Proposed Rulemaking (ANPR) to revise the regulations implementing Title III “in order to establish requirements for making the goods, services, facilities, privileges, accommodations, or advantages offered by public accommodations via the Internet, specifically at sites on the World Wide Web (Web), accessible to individuals with disabilities.” Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations, 75 Fed. Reg. 43,460 (July 26, 2010).
Those proposed regulations have not yet seen the light of day, which makes the California Supreme Court’s decision in Greater Los Angeles Agency on Deafness Inc. all the more significant. If the California Supreme Court rules in favor of GLAD, even businesses that do not have a brick and mortar presence may face statutory damages and the prospect of paying plaintiffs’ attorneys’ fees if they do not revamp their websites to make them accessible to the hearing impaired and other persons with disabilities. The California Supreme Court’s decision in Greater Los Angeles Agency on Deafness Inc. is expected by 2015.
Both Target and Greater Los Angeles Agency on Deafness show the potential significance of the process of certifying questions. These cases in particular also show that companies doing business with the general public in California may be subject to court-mandated requirements and duties not imposed in other states.
Michael Chung is a business and real estate litigator based in Los Angeles.
His practice focuses on commercial real estate disputes, business torts and disability access litigation.
He can be reached at (213) 700-0198 or mchung@lo-mc.com.
