June 2016 - Parks & Recreation - 40

L AW R E V I E W

AED Use Immunity?
Having found the school board " owed
a common-law duty to Abel, " the state
supreme court then considered whether statutory immunity would apply
under state law. As cited by the court,
" Section 1006.165 requires all public
schools that are members of the Florida High School Athletic Association
to have an operational AED on school
property and to train all employees or
volunteers who are reasonably expected to use the device in its application. §
1006.165(1)-(2), Fla. Stat. " Moreover,
the court noted that the use of AEDs
by employees and volunteers was also
covered by immunity provisions in the
Florida Cardiac Arrest Survival Act.
Specifically, in pertinent part, this state
law provided as follows:
Any person who uses or attempts
to use an [AED] on a victim of a
perceived medical emergency, without objection of the victim of the
perceived medical emergency, is
immune from civil liability for any
harm resulting from the use or attempted use of such device...any
person who acquired the device and
makes it available for use, including,
but not limited to, a community organization is immune from such liability. § 768.1325(3), Fla. Stat.
Under this law, there is no immunity for criminal misuse, gross negligence or similarly egregious misuse
of an AED. § 768.1325(4)(a).
Under a " plain reading of the statute, " the state supreme court found
" this subsection creates two classes
of parties that may be immune from
liability arising from the misuse of
AEDs: users (actual or attempted)
and acquirers. " Further, as characterized by the court, " users " were
clearly " immune from civil liability for any harm resulting from the
use or attempted use " of an AED.
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§ 768.1325(3), Fla. Stat. Additionally, the state supreme court found
" acquirers are immune from 'such
liability,' " meaning the " liability for
any harm resulting from the use or
attempted use " referenced in the prior

In the opinion of the
state supreme court,
" reasonable care under
the circumstances is
not and should not be a
fixed concept... "
sentence. (Emphasis of court)
As a result, in the opinion of the
state supreme court, " acquirers are not
immune due to the mere fact that they
have purchased and made available
an AED which has not been used. "
Rather, the state supreme court found
an AED acquirer is only " entitled to
immunity from the harm that may
result only when an AED is actually
used or attempted to be used. " (Emphasis
of court) In this particular instance, the
court noted, " no actual or attempted
use of an AED occurred in this case
until emergency responders arrived. "
Accordingly, the state supreme court
held the school board was " not entitled to immunity " under the Florida
Cardiac Arrest Survival Act. As described by the court, " this straightforward reading of the statute " was consistent with the " legislative intent " of
the Cardiac Arrest Survival Act:
The passage of section 1006.165
[requiring AEDs for public school
athletics] demonstrates that the legislature was clearly concerned about
the risk of cardiac arrest among high

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school athletes. The legislature also
explicitly linked this statute to the
Cardiac Arrest Survival Act, which
grants immunity for the use - actual or attempted - of an AED. The
emphasis on the use or attempted use
of an AED in the statute underscores
the intent of the legislature to encourage bystanders to use a potentially
life-saving AED when appropriate.
According to the state supreme
court, extending " the shield of immunity to those who make no attempt to
use an AED would defeat the intended purpose of the statute and discourage the use of AEDs in emergency
situations. " As a result, the court concluded, " immunity is with regard to
harm caused by the use of an AED, not
a failure to otherwise use reasonable
care. " (Emphasis of court)
Conclusion
Having found the school board " owed
a common-law duty to supervise
Abel, " once he was stricken, the state
supreme court concluded the school
board " owed a duty to take reasonable
measures and come to his aid to prevent aggravation of his injury. " As a
result, a jury would determine whether the alleged failure to utilize an available AED had violated the legal duty
of reasonable care and aggravated the
injury sustained by Abel under the
circumstances of this particular case.
The state supreme court, therefore,
voided the " no legal duty " decision of
the appeals court and remanded (i.e.,
sent back) this case to the trial court
for further proceedings before a jury.

James C. Kozlowski, J.D., Ph.D., is an
attorney and Associate Professor in the
School of Recreation, Health and Tourism at
George Mason University (jkozlows@gmu.
edu). Webpage with link to law review
articles archive (1982 to present): http://
mason.gmu.edu/~jkozlows.

June 2016 - Parks & Recreation

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