Circuit Court for Howard County
Case No. 13-C-15-103324

                                                 REPORTED

                                    IN THE COURT OF SPECIAL APPEALS

                                              OF MARYLAND

                                                   No. 494

                                            September Term, 2016

                                  ______________________________________

                                            VALERIE TRIM, et al.

                                                      v.

                                    YMCA OF CENTRAL MARYLAND, INC.
                                  ______________________________________

                                       Eyler, Deborah S.,
                                       Arthur,
                                       Wilner, Alan M.
                                          (Senior Judge, Specially Assigned),

                                                    JJ.
                                  ______________________________________

                                            Opinion by Arthur, J.
                                  ______________________________________

                                       Filed: July 25, 2017
       “An automated external defibrillator (AED) is a portable device that checks the

heart rhythm and can send an electric shock to the heart to try to restore a normal

rhythm.” What is an Automated External Defibrillator?, NATIONAL HEART, LUNG, AND

BLOOD INSTITUTE, https://www.nhlbi.nih.gov/health/health-topics/topics/aed (last viewed

July 25, 2017). 1

       “AEDs are used to treat sudden cardiac arrest,” which is “a condition in which the

heart suddenly and unexpectedly stops beating.” Id. When a person suffers sudden

cardiac arrest, “blood stops flowing to the brain and other vital organs.” Id.

       Sudden cardiac arrest “usually causes death if it’s not treated within minutes.” Id.


       1
        Maryland Code (1978, 2014 Repl. Vol.), § 13-517(a)(2) of the Education Article
contains the following definition:

              (2) “Automated external defibrillator (AED)” means a medical
       heart monitor and defibrillator device that:

                   (i) Is cleared for market by the federal Food and Drug
              Administration;

                      (ii) Recognizes the presence or absence of ventricular
              fibrillation or rapid ventricular tachycardia;

                    (iii) Determines, without intervention by an operator,
              whether defibrillation should be performed;

                    (iv) On determining that defibrillation should be performed,
              automatically charges; and

                      (v) 1. Requires operator intervention to deliver the
              electrical impulse; or

                           2. Automatically continues with delivery of electrical
              impulse.
Consequently, “[u]sing an AED on a person who is having [sudden cardiac arrest] may

save the person’s life.” Id.

       Maryland Code (1978, 2014 Repl. Vol.), § 13-517 of the Education Article

establishes a public access program for AEDs in this State. In brief summary, the statute

is designed to encourage the installation of AEDs in places of business and public

accommodation, but to ensure that the devices are operable and are to be used by people

who are properly trained to use them.

       This case principally concerns whether § 13-517 of the Education Article or its

accompanying regulations prescribe a duty of care that requires a business to use an AED

to provide cardiac defibrillation to someone who has suffered or reasonably appears to

have suffered sudden cardiac arrest. We hold that they do not.

                     FACTUAL AND PROCEDURAL HISTORY 2

       A. The Incident at the YMCA

       On November 12, 2014, Vincent Trim, age 53, suddenly collapsed while he was

playing basketball at a YMCA in Ellicott City. Julie Heard, a YMCA fitness instructor,

was near the doors to the basketball court at the time. Ms. Heard had 20 years of training

and experience in administering life support and resuscitation measures, including the use

of an AED.

       According to Ms. Heard, several people ran out of the court, asking someone to


       2
        In recounting the factual background in this case, we rely on the allegations of
the complaint, as well as the undisputed factual assertions in connection with a motion to
dismiss or, in the alternative, for summary judgment.


                                         -2-
call 911. Ms. Heard heard that someone had fainted. Another YMCA employee heard

that a person was having a seizure. Yet another employee ran to the front desk to call

911.

       Ms. Heard ran onto the court. She saw Mr. Trim lying unconscious on the floor.

He had no pulse and was gasping (exhibiting “agonal breathing”), which is a potential

sign of cardiac arrest. Ms. Heard began to administer cardiopulmonary resuscitation

(“CPR”), and she directed a bystander to go to the front desk to call 911. While she was

administering CPR, another member told her that she was already calling 911. Although

the YMCA had an AED that was just outside the doors of the basketball court, Ms. Heard

did not retrieve it or ask anyone to retrieve it for her.

       As a result of Ms. Heard’s efforts, Mr. Trim began to breathe on his own, but his

breathing stopped again after a few seconds. With the assistance of another employee,

Ms. Heard continued to administer CPR until the Howard County paramedics arrived,

about five minutes after they were first called.

       When the paramedics entered the court, a YMCA employee heard one of them say

that he needed to go back to the ambulance to retrieve his AED. The employee told the

paramedic that the YMCA’s AED was just outside the doors of the basketball court. The

paramedic instructed the employee to retrieve the AED, which he did.

       The paramedics used the AED, but were unsuccessful in resuscitating Mr. Trim.

He died a few days later as a result of a cardiac arrest and the consequent cessation of

blood flow to his brain and other vital organs.




                                             -3-
       B. Wrongful Death Action

       On April 27, 2015, Mr. Trim’s widow, appellant Valerie Trim, filed a wrongful

death and survival action against the YMCA. Citing the COMAR regulations that were

propounded to implement § 13-517 of the Education Article, appellant principally alleged

that the YMCA “had a statutory and/or regulatory duty to utilize the AED on its premises

. . . after [Mr. Trim’s] collapse in the gymnasium.” Because it did not comply with that

alleged duty, appellant alleged that the YMCA was negligent per se. 3

       The YMCA moved to dismiss the complaint, or alternatively, for summary

judgment. It advanced three grounds: (1) that § 13-517 does not impose an affirmative

duty to use an AED; (2) that the statute contains an immunity provision, which shields it

from liability “for any act or omission in the provision of automated external

defibrillation”; and (3) that an exculpatory clause within YMCA’s membership

agreement, which was signed by Mr. Trim, released it from liability.

       After a hearing on April 28, 2016, the Circuit Court for Howard County granted

the YMCA’s motion. Appellant noted a timely appeal.

                              QUESTIONS PRESENTED

       Appellant presents three issues, which we have rephrased as follows:

       1. Did the circuit court err in determining that § 13-517 of the Education Article
          or its implementing regulations do not establish a statutory duty of care by the
          YMCA and its employees?

       3
         Contrary to that allegation, the violation of a statutory duty may afford evidence
of negligence under Maryland law, but it does not establish negligence per se. See, e.g.,
Blackburn Ltd. P’ship v. Paul, 438 Md. 100, 126 (2014); Absolon v. Dollahite, 376 Md.
547, 557 (2003).


                                          -4-
       2. Did the circuit court err in determining that the YMCA and its employees were
          immune from civil liability under § 13-517 of the Education Article?

       3. Did the circuit court err in determining that the YMCA membership agreement
          exculpated the YMCA and its employees from civil liability? 4

       In response to the first question, we hold that the statute and regulations do not

establish a statutory duty of care that required the administration of automated external

defibrillation in the circumstances of this case. In view of our answer to the first

question, it is unnecessary to address the second and third questions. We shall affirm the

circuit court’s judgment.

                                STANDARD OF REVIEW

       In its dispositive motion, the YMCA included materials outside of the pleading.

The circuit court did not exclude those materials. Hence, the court was required to treat



       4
           Appellant presented the questions as follows:

            1. Whether the circuit court erred in determining that the Maryland Public
               Access Automated External Defibrillator Program Does Not Establish a
               Statutory Duty of Care Requiring Registered Facilities and Their
               Employees to Affirmatively Utilize the Onsite Automated External
               Defibrillator Device and Render Defibrillation to Individuals Suffering a
               Sudden Cardiac Arrest?

            2. Whether the Circuit Court Erred in Determining that the YMCA and its
               Employees Were Immune from Civil Liability for Alleged Acts and/or
               Omissions of Negligence in Failing to Provide Automated External
               Defibrillation to Vince Trim Following His Sudden Cardiac Arrest?

            3. Whether the Circuit Court Erred in Determining that the Language
               Contained in the YMCA Membership Agreement Exculpated the YMCA
               and its Employees from Civil Liability Stemming from Allegations of
               Negligence?

                                           -5-
the motion, and did in fact treat it, as a motion for summary judgment. Md. Rule 2-

322(c) (“[i]f, on a motion to dismiss for failure of the pleading to state a claim upon

which relief can be granted, matters outside the pleading are presented to and not

excluded by the court, the motion shall be treated as one for summary judgment”); see

also Hrehorovich v. Harbor Hosp. Ctr., Inc., 93 Md. App. 772, 782 (1992).

       On a motion for summary judgment, the court “shall enter judgment in favor of or

against the moving party if the motion and response show that there is no genuine dispute

as to any material fact and that the party in whose favor judgment is entered is entitled to

judgment as a matter of law.” Md. Rule 2-501(f).

       The propriety of a grant of summary judgment is a question of law. Butler v. S &

S P’ship, 435 Md. 635, 665 (2013) (citation omitted). In an appeal from the grant

of summary judgment, this Court conducts a de novo review to determine whether the

circuit court’s conclusions were legally correct. See D’Aoust v. Diamond, 424 Md. 549,

574 (2012).

       In this case, unlike many summary judgment cases, there was no real dispute of

fact: the dispute involved the purely legal question of whether § 13-517 of the Education

Article or its implementing regulations imposed a duty of care on the YMCA to use an

AED when Mr. Trim exhibited signs of sudden cardiac arrest. We conduct a de novo

review of that exercise in statutory interpretation. See, e.g., Gomez v. Jackson Hewitt,

Inc., 427 Md. 128, 142 (2012); Sail Zambezi, Ltd. v. Md. State Highway Admin., 217 Md.

App. 138, 150 (2014).




                                           -6-
                                           DISCUSSION

       “[I]n some instances, the duty of care in a negligence action may arise from statute

or regulation.” Blackburn Ltd. P’ship v. Paul, 438 Md. 100, 103 (2014). “[W]here there

is an applicable statutory scheme designed to protect a class of persons which includes

the plaintiff,” a “defendant’s duty ordinarily is ‘prescribed by the statute’ or ordinance[,]

and . . . the violation of the statute or ordinance is itself evidence of negligence.” Brooks

v. Lewin III Realty, Inc., 378 Md. 70, 78 (2003) (quoting Brown v. Dermer, 357 Md. 344,

358-59 (2000)); accord Blackburn Ltd. P’ship v. Paul, 438 Md. at 111; Gourdine v.

Crews, 405 Md. 722, 755 (2008); Pendleton v. State, 398 Md. 447, 466 (2007);

Remsburg v. Montgomery, 376 Md. 568, 584 (2003).

       “Under this principle, in order to make out a prima facie case in a negligence

action, all that a plaintiff must show is: (a) the violation of a statute or ordinance designed

to protect a specific class of persons which includes the plaintiff, and (b) that the

violation proximately caused the injury complained of.” Brooks v. Lewin III Realty, Inc.,

378 Md. at 79; accord Blackburn Ltd. P’ship v. Paul, 438 Md. at 112; Kiriakos v.

Phillips, 448 Md. 440, 457 (2016); Wietzke v. Chesapeake Conference Ass’n, 421 Md.

355, 388 (2011); C & M Builders, LLC v. Strub, 420 Md. 268, 281-82 (2011).

       Appellant contends that § 13-517 and its accompanying regulations were designed

to protect a class of persons who, like her late husband, have suffered or reasonably

appear to have suffered sudden cardiac arrest. She contends further that the statute and

the regulations prescribe a duty of care that requires entities such as the YMCA to use an

AED when a person has suffered or reasonably appears to have suffered sudden cardiac


                                           -7-
arrest. Finally, she contends that her husband died as a proximate result of the YMCA’s

breach of that alleged duty.

          We need not decide whether the General Assembly passed § 13-517 for the

protection of the particular class that appellant has identified, whether Mr. Trim was a

member of that class, or whether the failure to administer automated external

defibrillation was a proximate cause of Mr. Trim’s death. In this case, the decisive

question is whether § 13-517 or the implementing regulations mandate that an entity like

the YMCA use an AED when a person suffers or appears to have suffered sudden cardiac

arrest.

          To answer that question of statutory interpretation, we first examine the ordinary

meaning of the enacted language. Peters v. Early Healthcare Giver, Inc., 439 Md. 646,

665 (2014) (quoting Nichols v. Suiter, 435 Md. 324, 339 (2013)). “If the language of the

statute is clear and unambiguous, we need not look beyond the language[.]” Windesheim

v. Larocca, 443 Md. 312, 341 (2015) (citation and quotation marks omitted). “[A] court

may neither add nor delete language so as to reflect an intent not evidenced in the plain

and unambiguous language of the statute; nor may it construe the statute with forced or

subtle interpretations that limit or extend its application.” Stickley v. State Farm Fire &

Cas. Co., 431 Md. 347, 359 (2013) (citation and quotation marks omitted). Nonetheless,

to understand the meaning of statutory language, we must look beyond individual words

and clauses to the larger context, including other surrounding provisions and the apparent

purpose of the enactment. See, e.g., Williams v. Peninsula Regional Med. Ctr., 440 Md.

573, 580-81 (2014).


                                             -8-
I.     The Language of the Statute

       Section 13-517(b)(1) of the Education Article establishes “a Public Access

Automated External Defibrillator Program” – i.e., a program concerning public access to

AEDs. The program is administered by the Emergency Medical Services (“EMS”)

Board. Id. § 13-517(b)(3).

       The EMS Board has the power to adopt regulations to administer the program; to

issue and renew certificates to “facilities” that meet the statutory requirements; and to

deny, suspend, revoke, or refuse to renew a facility’s certificate if it fails to meet the

statutory requirements. Id. § 13-517(c)(1)-(3). The statute defines the term “facility” to

mean “an agency, association, corporation, firm, partnership, or other entity.” Id. § 13-

517(a)(4). The YMCA is a “facility.”

       Subject to a few exceptions that are inapplicable to this case, “[e]ach facility that

desires to make automated external defibrillation available shall possess a valid

certificate from the EMS Board.” Id. § 13-517(d)(1). To qualify for a certificate, a

facility must:

               (1) Comply with the written protocol approved by the EMS Board
       for the use of an AED which includes notification of the emergency
       medical services system through the use of the 911 universal emergency
       access number as soon as possible on the use of an AED;

              (2) Have established automated external defibrillator maintenance,
       placement, operation, reporting, and quality improvement procedures as
       required by the EMS Board;

              (3) Maintain each AED and all related equipment and supplies in
       accordance with the standards established by the device manufacturer and
       the federal Food and Drug Administration; and



                                            -9-
               (4) Ensure that each individual who is expected to operate an AED
       for the registered facility has successfully completed an educational training
       course and refresher training as required by the EMS Board.

Id. § 13-517(e)(1)-(4).

       A certificate is valid for three years (id. § 13-517(h)(3)), and the EMS Board must

issue a “renewed certificate to a facility that meets” the statutory requirements. Id. § 13-

517(h)(1).

       There is no dispute that, at the time of the events that gave rise to this case, the

YMCA had a valid certificate. In the language of the statute, therefore, the YMCA was a

“registered facility.” Id. § 13-517(a)(10).

II.    Duties Under the Statute

       In her brief, appellant acknowledges that “[t]he AED Statute and related COMAR

regulations are silent as to whether or not a registered facility like the YMCA has an

affirmative duty to provide and render automated external defibrillation in the event of a

sudden cardiac arrest.” In our view, the legislative and regulatory silence establish that §

13-517 imposes no affirmative duty on a registered facility like the YMCA.

       The legislative silence in this statute stands in contrast to the affirmative

obligations that were enunciated in statutes or ordinances that have been found to

prescribe a duty of care towards members of a specific class. In each of those cases, the

statute, ordinance, or regulation employed mandatory language to define what a person

had a duty to do or to refrain from doing. See, e.g., Kiriakos v. Phillips, 448 Md. at 495

(concluding that a social host owes a duty to persons injured as a result of a minor’s

underage drinking, where a statute provided that “an adult may not knowingly and


                                              - 10 -
willfully allow an individual under the age of 21 years actually to possess or consume an

alcoholic beverage at a residence”); Blackburn Ltd. P’ship v. Paul, 438 Md. at 125, 128

(concluding that an apartment complex owes a duty to unsupervised children where a

regulation stated that “an owner shall ensure that a recreational pool . . . is completely

surrounded by a barrier that . . . does not allow the passage of a sphere 4 inches in

diameter,” the size a young child’s head); Wietzke v. Chesapeake Conference Ass’n, 421

Md. at 392-95 (concluding that a landowner owes a duty to its neighbors where an

ordinance stated that “[a] person must not engage in any land-disturbing activity or by

any action cause or permit any soil, earth, sand, gravel, rock, stone, or other material, to

be deposited upon or to roll, flow, or wash upon or over the premises of another in a

manner to cause damage”); Brooks v. Lewin Realty III, Inc., 378 Md. at 83, 89

(concluding that a landlord owed a duty to the occupants of a rental unit where

ordinances stated that “[a]ll walls, ceilings, woodwork, doors and windows shall be kept

clean and free of any flaking, loose, or peeling paint” and that “[a]ll interior loose or

peeling wall covering or paint shall be removed”); Moore v. Myers, 161 Md. App. 349,

364 (2005) (concluding that owners of pit bull terriers owed a duty to persons attacked by

their dogs where an ordinance stated that “[t]he owner shall maintain the dog within a

building or a secure kennel” and that “[w]henever the dog is removed from the building

or kennel it shall be secured by an unbreakable or unseverable leash and maintained

under the control of an adult”); compare Pace v. State, 425 Md. 145, 169-70 (2012)

(concluding that a federal statute did not impose a statutory duty of care on the defendant,

where the petitioner “could not ‘identify . . . specific words and phrases in the [statute]


                                           - 11 -
that . . . obligated the . . . State defendants to take some specific action”) (internal

quotation omitted).

       Nothing in § 13-517 obligated the YMCA to take any specific action when Mr.

Trim exhibited signs of sudden cardiac arrest. The statute, therefore, does not impose an

affirmative obligation on the YMCA to use the AED.

III.   The Implementing Regulations

       In arguing that a registered facility has an affirmative duty to use an AED

whenever a person suffers or reasonably appears to have suffered sudden cardiac arrest,

appellant relies largely on the implementing regulations that the EMS Board adopted, not

on the language of the statute itself. Appellant incorrectly refers to the regulations as “the

words utilized by the Legislature,” which they are not. 5

       Nonetheless, assuming that the EMS Board could prescribe a duty of care on

registered facilities like the YMCA, its regulations do not, in our view, impose an

affirmative duty to use an AED when a person suffers or reasonably appears to have

suffered sudden cardiac arrest.

       Among other things, the regulations require a facility to designate an AED

coordinator who has received CPR and AED training and who must ensure that the AED



       5
         It is true that, insofar as a regulation illustrates an agency’s understanding of the
authority that the legislature has delegated to it, the regulation may supply some indirect
evidence of the meaning of a statute. See Christ by Christ v. Md. Dep’t of Nat. Res., 335
Md. 427, 437 (1994). But to understand what a statute means, we typically look to the
statutory language itself, not to the implementing regulations. Again, it is telling that
appellant does not base an argument on the statutory language itself.


                                            - 12 -
equipment is regularly inspected (presumably to ensure that it works). See COMAR

30.06.02.01(A). They require a facility to inform its employees and volunteers about the

operation, maintenance, and location of its AEDs. See id. 30.06.02.01(B). They require

a facility to place its AEDs in locations that are visible and readily accessible to anyone

who might be willing to operate them in case of an instance of cardiac arrest. See id.

30.06.02.01(C). They require a facility to have a telephone or “other communication

service” to notify public safety officials in case of an emergency. See id. 30.06.02.01(D).

They require the facility to submit data to the Maryland Institute for Emergency Medical

Services Systems. See id. 30.06.02.01(E). They require the facility to ensure that all

“expected operators,” which are defined as “individual[s] identified by a registered

facility to operate an AED at a registered facility” (see id. 30.06.01.01(B)(3)), have

completed CPR and AED training. See id. 30.06.02.01(F). Finally, in a section titled

“Protocol,” they state that “[a]ll personnel who are expected to operate an AED” must

“utilize the AED in accordance with their training.” See id. 30.06.02.02.

       Nothing in these regulations imposes an affirmative duty to use an AED whenever

a person suffers or reasonably appears to have suffered sudden cardiac arrest. The

regulations simply require a facility to obtain training for the persons who may operate

the device, to take steps to ensure that the device will work if it is needed, to inform

employees and volunteers about where the devices are located and how they work, to

have a means of communicating with the authorities in case of an emergency, and to

make reports to the governing body. Most of the regulations are concerned only with




                                           - 13 -
what a facility must do in order to obtain a certificate. Neither the statute nor the

regulations, therefore, creates the duty that appellant seeks to enforce.

IV.    Legislative History of the Statute

       Appellant goes on to argue that the drafting history of § 13-517 reveals a

legislative intention to require registered facilities to use AEDs whenever a person suffers

or reasonably appears to have suffered sudden cardiac arrest. Although Maryland courts

ordinarily do not look to legislative history if, as in this case, the meaning of a statute is

clear on its face (see W.R. Grace & Co. v. Swedo, 439 Md. 441, 453-55 (2014)), we have

considered appellant’s arguments and found them wanting.

       The General Assembly enacted the original version of § 13-517 in 1999.

Appellant focuses on amendments that occurred in 2008.

       Before the 2008 amendments, the statute contained the following language:

       (c) The EMS board may: . . . (5) Approve educational and training
       programs required under this section that . . . (ii) Include training in
       cardiopulmonary resuscitation . . . .

                             *       *      *        *

       (f) To qualify for a certificate a facility shall: . . . (6) Ensure that each
       individual who operates an automated external defibrillator for the
       authorized facility has successfully completed an education training course
       and refresher training as required by the EMS Board.

                             *       *      *        *

       (j) An individual who is authorized to operate an automated external
       defibrillator at an authorized facility may administer automated external
       defibrillation to an individual who is reasonably believed to be a victim of
       sudden cardiac arrest if physician services or emergency medical services
       are not immediately available.



                                            - 14 -
Md. Code (1978, 2006 Repl. Vol.), § 13-517 of the Education Article.

      In 2008 the General Assembly altered those provisions in the following manner:

      (c) The EMS board may: . . . (5)(4) Approve educational and training
      programs required under this section that . . . (ii) Include training in
      cardiopulmonary resuscitation AND AUTOMATED EXTERNAL
      DEFIBRILLATION . . . .

                            *      *       *        *

      (f)(e) To qualify for a certificate a facility shall: . . . (6) (4) Ensure that
      each individual who operates IS EXPECTED TO OPERATE an
      automated external defibrillator AED for the authorized REGISTERED
      facility has successfully completed an education training course and
      refresher training as required by the EMS Board.

                            *      *       *        *

       (j) An individual who is authorized to operate an automated external
      defibrillator at an authorized facility may administer automated external
      defibrillation to an individual who is reasonably believed to be a victim of
      sudden cardiac arrest if physician services or emergency medical services
      are not immediately available.

2008 Md. Laws, ch. 593, § 1. 6

      Appellant focuses, first, on the removal of former subsection (j), which said that

an “authorized” person at an “authorized facility” “may administer automated external

defibrillation[.]” (Emphasis added.) She argues that by deleting the paragraph that

contained the permissive verb “may,” the legislature “essentially endorsed an implicit

reading and interpretation,” under which a facility “shall” provide automated external




      6
        The 2008 legislation is accessible through the General Assembly’s website,
http://mgaleg.maryland.gov.

                                           - 15 -
defibrillation if a person suffers (or reasonably appears to have suffered) sudden cardiac

distress.

       Appellant tacitly concedes the case with the equivocal language about “implicit”

readings. To ascertain what a statute means, a court looks at the actual language of the

statute and does not add language that the legislature did not include. Nothing in the

actual language states or even implies that a facility has an affirmative obligation to use

an AED in any circumstance.

       Appellant goes on to cite the amendment to what is now subsection (e)(4). In that

amendment the legislature changed the phrase “an individual who operates an automated

external defibrillator” to “an individual who is expected to operate an AED.” In her

view, the change “establishes an affirmative and ‘expected’ duty on the part of a

registered facility.”

       Appellant’s contention is unpersuasive. In full, subsection (e)(4) states that “[t]o

qualify for a certificate a facility shall: . . . (4) Ensure that each individual who is

expected to operate an AED for the registered facility has successfully completed an

educational training course and refresher training as required by the EMS Board.” In

context, this language means that a facility can obtain a certificate only if the person who

is expected (i.e. anticipated) to use its AED has the proper training to use the AED. This

language does not create a duty to use an AED in any specific set of circumstances; it

simply creates a condition precedent for the acquisition of a certificate. The legislature

did not surreptitiously incorporate an affirmative duty to use an AED when it required an




                                             - 16 -
expected (or anticipated) operator to receive training before a facility could receive a

certificate.

       Appellant concludes with a rhetorical question about why the legislature would

establish a statewide program for public access to AEDs unless it intended that registered

facilities would have an affirmative obligation to use them. The short answer is that the

legislature wanted to encourage businesses, public facilities, and places of public

accommodation to make these life-saving devices available, while ensuring that the

devices would work, that people knew where they were located, and that they would be

used by persons with proper training if they are used at all.

       The Court of Appeals of New York has expressed a similar insight. In Miglino v.

Bally Total Fitness of Greater New York, Inc., 20 N.Y.3d 342 (2013), that court held that

even though a statute required a fitness club to install an AED and to have at least one

employee or volunteer who held a valid certification in the use of the device, the club had

no affirmative duty to use the AED when a member suffered sudden cardiac arrest. Id. at

349. In rejecting the contention that its interpretation rendered the statute meaningless,

the court stated, “[T]here is nothing meaningless or purposeless about a statute that seeks

to insure the availability of AEDs and individuals trained in their use at locations – i.e.,

health clubs – where there is a population at higher risk of sudden cardiac arrest.” Id. “A

law that mandates the presence of AEDs and trained individuals at health clubs is easy to

obey and enforce,” the court added. Id. By contrast, an affirmative duty to employ the

device in specific circumstances “would engender a whole new field of tort litigation,

saddling health clubs with new costs and generating uncertainty.” Id. at 349-50. The


                                           - 17 -
court concluded that “[t]he legislature is unlikely to have imposed such a new duty absent

an express statement.” Id. at 350. We agree.

                                     CONCLUSION

       In summary, we hold that § 13-517 of the Education Article and its implementing

regulations do not impose an affirmative obligation on registered facilities, like the

YMCA, to use an AED when a person suffers, or reasonably appears to have suffered,

sudden cardiac arrest. Consequently, we affirm the grant of the YMCA’s dispositive

motion. 7

                                           JUDGMENT OF THE CIRCUIT COURT
                                           FOR HOWARD COUNTY AFFIRMED.
                                           COSTS TO BE PAID BY APPELLANT.




       7
         In view of our decision, it is unnecessary to decide whether the failure to use the
AED at all amounts to an “omission in the provision of automated external
defibrillation,” which would render the YMCA immune from civil liability under § 13-
517(j)(1) of the Education Article. It is also unnecessary to decide whether the
exculpatory language in the YMCA’s membership agreement operates as a prospective
release of the claims in this case.

                                           - 18 -
