Plaintiff's father collapsed while playing racquet-ball at a gym owned and operated by Bally. In addition to calling 911, a personal trainer employed by Bally, certified in using an automated external defibrillator [AED], ran to the scene to observe the individual. Another employee brought the AED to the person's side. Also on the scene were a medical doctor and a medical student. The AED was never used before the arrival of the EMS technicians, approximately eight minutes after the call was received. EMS rushed the unconscious and unresponsive individual to a nearby hospital where he was pronounced DOA.

Decedent's son commenced a wrongful death action based on the ground of negligence for failure to utilize the AED. The defendant sought dismissal of the proceeding for failure to state a cause of action.

The Supreme Court denied the motion and the Appellate Division, Second Department, affirmed.

The "heart" of this case was whether the employees of the gym who were trained and certified in using the AED which the gym was required to have on location pursuant to General Business Law §627-a had a legal duty to use it.

The defendant argued that it had no affirmative duty to use the AED on the decedent after he collapsed and that it was immune from liability under the Good Samaritan Law.

The Appellate Division disagreed with the defendant finding that "the issue at bar was not whether Bally was negligent in the course of its use of the AED" but whether the General Business Law [GBL] §627-a gives rise to a statutory cause of action in negligence based upon the failure to use the device".

As clearly stated, "...as there is no dispute that General Business Law §627-a requires certain health club facilities to provide an AED on the premises, as well as a person trained to use such device, it is anomalous to conclude that there is no duty to use the device should the need arise. Stated differently, why statutorily mandate a health club facility to provide the device if there is no concomitant requirement to use it?"

Miglino v. Bally Total Fitness of Greater New York, NYLJ, 1/3/12, 18:1