Reversed and Remanded, and Memorandum Opinion filed August 16, 2018.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-17-00308-CV

               GINNY BOGGUS OBO JOHN CASEY, Appellant
                                          V.
TEXAS RACQUET & SPA, INC., D/B/A WESTSIDE TENNIS & FITNESS,
                          Appellee

                    On Appeal from the 190th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2014-56796

                  MEMORANDUM OPINION

      In this appeal, we hold that a fitness club failed to meet its summary judgment
burden to conclusively negate at least one essential element of the plaintiff’s
negligence claim relating to the club’s failure to train its employees on the use of an
automated external defibrillator (AED), as required by the Texas Health and Safety
Code.1 Thus, we reverse the trial court’s summary judgment and remand for further
proceedings.

                                     I.     BACKGROUND

       John Casey was participating in a cycling class at a fitness club (Texas
Racquet & Spa, Inc., d/b/a Westside Tennis & Fitness, hereafter “Club”). He
suffered a cardiac event and fell to the floor. A Club employee immediately called
911. About five minutes later, after Casey started turning blue, another Club
employee began cardiopulmonary resuscitation (CPR). Although an AED was
located nearby, no one used it. Ultimately, emergency medical services personnel
arrived and defibrillated Casey. He survived but suffered brain damage and is in a
vegetative state.

       Ginny Boggus, Casey’s wife, sued the Club on behalf of Casey for negligence
and gross negligence. In her live pleading, Boggus alleged among other things that
the Club failed to (1) administer CPR within an adequate time period; (2) use the
AED; (3) properly train employees on the use of the AED; (4) properly train,
supervise, or manage the employees at the facility; and (5) comply with Chapter 779
of the Texas Health and Safety Code.

       The Club moved for a traditional summary judgment, challenging the
elements of duty, breach, and causation for the negligence claim; the Club argued
that Boggus could not recover for gross negligence because the Club was entitled to
summary judgment on the negligence claim. Boggus filed a response and attached


       1
          Under the Code, an AED is defined as a heart monitor and defibrillator that “is capable
of recognizing the presence or absence of ventricular fibrillation or rapid ventricular tachycardia
and is capable of determining, without interpretation of cardiac rhythm by an operator, whether
defibrillation should be performed,” and “on determining that defibrillation should be performed,
automatically charges and requests delivery of an electrical impulse to an individual’s heart.” Tex.
Health & Safety Code § 779.001.

                                                 2
evidence, some of which the trial court determined to be inadmissible. The trial court
granted the motion and signed a take-nothing judgment. Boggus appeals.

                            II.   SUMMARY JUDGMENT

      In her first issue, Boggus contends that the trial court erred by granting
summary judgment to the Club.

A.    Standard of Review

      The party moving for a traditional summary judgment has the initial burden
to submit sufficient evidence to establish that (1) there is no genuine issue as to any
material fact and (2) the movant is entitled to judgment as a matter of law. Amedisys,
Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex. 2014). The
movant can satisfy this burden by conclusively negating at least one essential
element of the plaintiff’s claim. See Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494,
508 (Tex. 2010). If the movant satisfies this burden, then the burden shifts to the
nonmovant to raise a genuine issue of material fact precluding summary judgment.
Lujan v. Navistar, No. 16-0588, 2018 WL 1974473, at *3 (Tex. Apr. 27, 2018). On
the other hand, if the movant fails to satisfy its initial burden, then the burden does
not shift, and the nonmovant need not present any evidence to avoid summary
judgment. Amedisys, 437 S.W.3d at 511.

      We review issues of statutory construction and summary judgments de novo.
Carreras v. Marroquin, 339 S.W.3d 68, 71 (Tex. 2011). We must credit evidence
favorable to the nonmovant, indulging every reasonable inference and resolving all
doubts in the nonmovant’s favor. Lujan, 2018 WL 1974473, at *3. The purpose of
summary judgment is not to deprive a litigant of the right to a jury trial, but to
eliminate patently unmeritorious claims. City of Houston v. Clear Creek Basin Auth.,
589 S.W.2d 671, 678 n.5 (Tex. 1979).


                                          3
B.    Waiver

      As an initial matter, the Club contends that the summary judgment on
negligence and gross negligence can be affirmed on unappealed grounds. We
disagree with the Club.

      When, as here, the trial court does not specify the grounds upon which
summary judgment was granted, the appellant must negate all grounds on appeal;
and if an appellant fails to challenge all grounds on which a summary judgment
could have been granted, the appellate court must affirm the summary judgment. See
Heritage Gulf Coast Props., Ltd. v. Sandalwood Apartments, Inc., 416 S.W.3d 642,
653 (Tex. App.—Houston [14th Dist.] 2013, no pet.); see also Cmty. Mgmt., LLC v.
Cutten Dev., L.P., No. 14–14–00854–CV, 2016 WL 3554704, at *3 (Tex. App.—
Houston [14th Dist.] June 28, 2016, pet. denied) (mem. op.). Although an issue on
appeal generally stating that the trial court erred by granting summary judgment is
sufficient to allow argument as to the grounds upon which the summary judgment
should have been denied, error is waived if the appealing party fails to support the
specific ground with argument. See Cruikshank v. Consumer Direct Mortg., Inc.,
138 S.W.3d 497, 502–03 (Tex. App.—Houston [14th Dist.] 2004, pet. denied)
(citing Tex. R. App. P. 38.1).

      Regarding negligence, the Club contends that Boggus has not challenged on
appeal the grant of summary judgment on the ground that the Club did not breach
the applicable standard of care as a matter of law. In the first issue presented in its
brief, Boggus asks, “After acquiring an AED machine, did [the Club]’s failure to
comply with the requirements of the Health Code and the Admin. Code create civil
liability for damages caused by such negligence?” Within the discussion of her first
issue, Boggus includes a sub-heading “Breach of Duty” with three pages of analysis
supported by citation to authority and the record. We hold that Boggus has

                                          4
challenged the trial court’s grant of summary judgment on the element of breach,
and therefore, has not waived error regarding the propriety of the summary judgment
on the negligence claim. Cf. id.

      The Club sought summary judgment on Boggus’s entitlement to exemplary
damages for gross negligence solely because Boggus could not recover actual
damages on Boggus’s negligence claim. Thus, summary judgment on gross
negligence is dependent on the Club’s entitlement to summary judgment on
negligence. Cf. Nowzaradan v. Ryans, 347 S.W.3d 734, 739 (Tex. App.—Houston
[14th Dist.] 2011, no pet.) (reasoning that “negligence and gross negligence are not
separable causes of action but are inextricably intertwined” (quoting Ford Motor Co.
v. Miles, 967 S.W.2d 377, 390 (Tex. 1998) (Gonzalez, J., concurring))). Because
Boggus challenges the basis for the summary judgment on gross negligence—i.e.,
summary judgment on negligence—and fully briefs the issue, Boggus has not
waived the issue due to inadequate briefing. See Perry v. Cohen, 272 S.W.3d 585,
587–88 (Tex. 2008) (reasoning that appellate courts should reach the merits of an
appeal whenever possible, that appellate briefs should be construed reasonably and
liberally so that the right to review is not lost by waiver, and that issues are liberally
construed to obtain a just, fair, and equitable adjudication).

      Accordingly, we will reach the merits of Boggus’s appeal.

C.    Duty

      In its motion for summary judgment, the Club argued that it owed no common
law duty to perform CPR on Casey, to administer the AED, or to train its employees
to use the AED. The Club argued in the motion that the Club had no special
relationship with Casey that would require the Club to render first aid, but even if it
did, the duty did not include a duty to perform CPR or use an AED, citing Applebaum
v. Nemon, 678 S.W.2d 533 (Tex. App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.),
                                            5
and Potter v. 24 Hour Fitness USA Inc., No. 3:12-CV-453-P, 2014 WL 11633691
(N.D. Tex. June 6, 2014), aff’d, 597 Fed. App’x 796 (5th Cir. 2015). The Club
argued that it owed no duty “to train its employees to immediately use AEDs in all
emergency situations” because the Club owed no duty to possess or use an AED.

       In her response to the motion and on appeal, Boggus does not address any
potential common law duty to administer CPR or use the AED, nor does Boggus
contend that the Legislature has created a duty to administer CPR or use an AED.2
Boggus contends that the Club’s duty to train its employees is imposed by Chapter


       2
          Because Boggus does not urge for the application of a common law duty to render aid
under Section 314A of the Restatement (Second) of Torts, we do not dwell on the potential duty
discussed in Applebaum. Compare Restatement (Second) of Torts § 314A (landowner owes invitee
a duty to take reasonable action to give the invitee first aid after the landowner knows or has reason
to know that the invitee is ill or injured), cited in Applebaum, 678 S.W.2d at 535–36, with
Deposition of Linda McIngvale, 1 CR 271, 275 (owner of the Club testifying that she did not
require AED training because she “would never make one of [her] employees have to render aid”;
analogizing an AED to “having a first aid kit that you have band-aids available if somebody needs
them” because “anyone can use an AED” and when “you take it out, it steps you through it step
by step by step and that it’s available in public locations because anybody could take it off the wall
and—and use it”).
         We note that Applebaum held that a childcare center with a special relationship to the
plaintiff—such as landowner and invitee—was not required “to have medically trained employees
who can administer CPR” absent regulations promulgated by the state. 678 S.W.2d at 535–37. But
see 26 Tex. Admin Code § 746.1315 (subsequent regulations require childcare centers to have
caregivers trained in CPR). Applebaum did not address the separate question of whether a
defendant may be required to administer CPR, or other life-saving measures, to a plaintiff owed a
duty of reasonable care under Section 314A if the defendant “reasonably can and knows how to
do it.” See 678 S.W.2d at 536 (holding that a defendant with a landowner–invitee relationship must
“administer whatever initial aid he reasonably can and knows how to do”); see also Deposition of
Stephanie Hirschfield, 1 CR 372, 374–75, 382–83 (Club employee who saw Casey fall off the bike
was trained in CPR and AED, knew that defibrillation should occur as soon as possible if someone
has a cardiac event, knew that Casey’s pulse was going “back and forth,” knew that the AED was
located within a ten-second walk from Casey, and would have gotten the AED if someone had
mentioned it). See generally Verdugo v. Target Corp., 327 P.3d 774, 794 & n.28 (Cal. 2014)
(collecting cases concerning whether fitness clubs had a duty to acquire or administer AED;
holding that a large department store chain had no common law duty to acquire an AED; and
distinguishing cases involving fitness clubs because those cases imposing a duty “relied upon the
heightened foreseeability of sudden cardiac arrest in the fitness studio setting”).

                                                  6
779 of the Texas Health and Safety Code: “Any person or entity that acquires an
automated external defibrillator and negligently fails to comply with the
requirements of this chapter is liable for civil damages caused by such negligence.”
Tex Health & Safety Code § 779.006. The statute also provides that an entity that
acquires an AED and meets the requirements of Chapter 779 is not liable for civil
damages for the acquisition unless the entity’s conduct is willfully or wantonly
negligent. See id.

      Under Chapter 779, as the Club acknowledged in its motion for summary
judgment, entities that acquire an AED are required to ensure that users are trained:

      (a) A person or entity that acquires an automated external defibrillator
      shall ensure that:
          (1) each user of the automated external defibrillator receives training
          given or approved by the Department of State Health Services in:
             (A) cardiopulmonary resuscitation; and
             (B) use of the automated external defibrillator; and
          (2) a licensed physician is involved in the training program to ensure
          compliance with the requirements of this chapter.
      (b) The executive commissioner of the Health and Human Services
      Commission shall adopt rules establishing the minimum requirements
      for the training required by this section. In adopting rules under this
      section, the executive commissioner shall consider the guidelines for
      automated external defibrillator training approved by the American
      Heart Association, the American Red Cross, or another nationally
      recognized association.
Id. § 779.002. The executive commissioner adopted various rules under subsection
(b), including that:

      A person acquiring and/or using an AED shall successfully complete a
      training course in CPR and AED operation in accordance with the
      guidelines established by the device’s manufacturer and as approved by
      the American Heart Association, the American Red Cross, other

                                           7
      nationally recognized associations, or the medical director of the local
      emergency medical services provider.

25 Tex. Admin. Code § 157.41(d)(1). Furthermore, an “entity that acquires the AED
should assure,” among other things, that “a core of trained users is retained.” Id. §
157.41(f)(5).

      For the first time on appeal, the Club contends that Section 779.006 does not
create a private cause of action for an entity’s failure to train users or otherwise
comply with Chapter 779 and the attendant regulations. We cannot affirm the
summary judgment on this ground because it was not expressly set out in the motion.
See Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993). Regardless, the
plain language of the statute evidences the Legislature’s intent to create a private
cause of action. See Brown v. De La Cruz, 156 S.W.3d 560, 563–65 (Tex. 2004)
(noting distinction between Legislature’s use of “penalty” versus “damages” when
creating private cause of action). The statute expressly provides for an entity’s
liability for “damages” if the entity acquires an AED and negligently fails to comply
with Chapter 779, which includes a requirement to ensure that users are trained. See
Tex. Health & Safety Code § 779.006; see also id. § 779.002

      The Club contends that the statute only applies to “users,” so “the statute and
regulations are intended to apply when AEDs are used, not merely acquired.” We
disagree with the Club. The plain language of the liability provision applies to an
“entity that acquires” an AED. See id. § 779.006. The duty to “ensure” training of
users is on the “entity that acquires” the AED. See id. § 779.002(a). Thus, the Club’s
interpretation of the statute—that the duty to ensure training only applies if an AED
is “used”—is unreasonable. See Sw. Royalties, Inc. v. Hegar, 500 S.W.3d 400, 405
(Tex. 2016) (statute is ambiguous only if there is more than one reasonable
interpretation).


                                          8
      Furthermore, the Legislature conferred upon the Health and Human Services
Commission the power to make rules and regulations concerning the training
requirements. See Tex. Health & Safety Code § 779.002(b); see also Pruett v. Harris
Cty. Bail Bond Bd., 249 S.W.3d 447, 454 (Tex. 2008). One of those rules is for any
person “acquiring” an AED to be trained. See 25 Tex. Admin. Code § 157.41(d)(1).
And, an entity that acquires an AED “should assure . . . that a core of trained users
is retained.” Id. § 157.41(f)(5).

      In sum, the statute and regulations provide for an entity acquiring an AED,
such as the Club, to train users and assure that trained users are retained. Nothing in
the Club’s motion negated this duty as a matter of law in this case. Thus, the Club
failed to meet its summary judgment burden regarding the element of duty.

D.    Breach

      In its motion for summary judgment, the Club argued that, as a matter of law,
the Club “complied with whatever duties it may have owed to Casey after his
medical event began.” The Club did not, and does not on appeal, argue or cite to any
evidence to show that it complied with Chapter 779’s AED training requirement.
Thus, the Club failed to meet its summary judgment burden to negate the breach of
an applicable duty as a matter of law, and we cannot affirm on this basis. See Stiles,
867 S.W.2d at 26.

      Furthermore, Boggus referred the trial court and this court to some evidence
raising a genuine issue of material fact concerning whether the Club met its duty to
train users. One of the Club’s two owners testified that she was not aware of the
training requirement, that she did not require training of any Club employees, and
that she did “nothing” to ensure that employees would use an AED when needed
except “put them on the wall.”


                                          9
E.    Causation

      In its motion for summary judgment, the Club argued that Casey’s injuries or
damages were not proximately caused by a failure to comply with Chapter 779. The
Club did not cite to any evidence, or any legal authority other than a single case
referring to the general requirement of proving causation. The Club referred to no
specific requirement in Chapter 779, and the Club argued that the Club owed no duty
to inform the 911 operator of the availability of the AED. The Club did not refer to
Boggus’s allegation concerning the duty to train employees until the Club filed a
reply to Boggus’s response, in which the Club argued that there was “no evidence”
to show that training in compliance with the AED statute would have resulted in the
Club’s employees using the AED.

      But the Club’s motion was for a traditional summary judgment, not a no-
evidence one. Because Boggus identified the lack of training as a proximate cause
of Casey’s injuries in her live pleading, it was the Club’s burden to negate the
allegation. See Castillo v. Westwood Furniture, Inc., 25 S.W.3d 858, 862 & n.2 (Tex.
App.—Houston [14th Dist.] 2000, no pet.). The Club did not meet this burden
because it did not adduce any evidence or legal authority to show that the lack of
training was not a proximate cause of Casey’s injuries. See id. at 861 (defendant with
burden of conclusively negating causation element of plaintiff’s claim could not
meet its burden on motion for traditional summary judgment by focusing on what
plaintiff failed to prove, even though plaintiff’s deposition testimony would have
been insufficient to raise a fact issue if cited by plaintiff in response to a motion for
no-evidence summary judgment).

      The burden to raise a fact issue did not shift to Boggus because the Club did
not meet its initial burden to show entitlement to a judgment as a matter of law. See
id. at 861–62. Thus, we need not refer to the summary judgment evidence that

                                           10
Boggus submitted to the trial court—concerning alleged training materials—to
determine if Boggus raised a genuine issue of material fact as to whether a lack of
training was a substantial factor in bringing about Casey’s injuries. See id. at 862
(plaintiff did not need to present any evidence of causation when the defendant failed
to meet its initial burden of negating the element of causation).3

       Boggus’s first issue is sustained.

                                    III.    CONCLUSION

       Having sustained Boggus’s first issue, we reverse the trial court’s summary
judgment and remand for further proceedings.




                                            /s/     Ken Wise
                                                    Justice


Panel consists of Justices Boyce, Donovan, and Wise.




       3
          Because we do not refer to the alleged training materials, which the trial court struck
while sustaining the Club’s objections, we do not address the parties’ arguments concerning the
trial court’s rulings on the Club’s objections. See Tex. R. App. P. 47.1.

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