                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                    No. 11-2795
                                   _____________

                 Z. MARCIA ABRAMSON, Executrix of the Estate of
                          Martin Abramson Deceased and
                       Z. Marcia Abramson, in her own right,
                                              Appellant

                                          v.

                  THE RITZ CARLTON HOTEL COMPANY, LLC,
            t/a, d/b/a and also known as THE RITZ-CARLTON GOLF &
                       SPA RESORT, ROSE HALL, JAMAICA;
                         MARRIOT INTERNATIONAL, INC.;
                   THE RITZ-CARLTON GOLF & SPA RESORT,
                               ROSE HALL, JAMAICA;
          AMERICAN EXPRESS TRAVEL RELATED SERVICES, INC.;
                            JOHN DOES 3 THROUGH 20;
        THE RITZ CARLTON HOTEL COMPANY OF JAMAICA LIMITED;
                              ROSE HALL RESORT, L.P.
                                   ______________

            APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF NEW JERSEY
                           (D.C. Civil No. 09-cv-03264)
                 District Judge: Honorable Joseph H. Rodriguez
                                  ____________

                     Submitted Under Third Circuit LAR 34.1(a)
                                  April 17, 2012
                                  ____________

             Before: VANASKIE, BARRY and CUDAHY, * Circuit Judges

*
 Honorable Richard D. Cudahy, Senior Circuit Judge for the United States Court of
Appeals for the Seventh Circuit, sitting by designation.
                             (Opinion Filed: May 10, 2012)
                                    ____________

                                       OPINION
                                     ____________

BARRY, Circuit Judge

      Plaintiff Z. Marcia Abramson, as executrix of her husband’s estate and on her own

behalf, brought this suit against the Ritz-Carlton Hotel Company and related parties

(collectively, “Appellees”). Her claims arise from her husband’s fatal heart attack while

dining in a restaurant at the Ritz-Carlton Hotel & Spa (“Hotel”) in Rose Hall, Jamaica.

She asserts that the Hotel breached the duty of care owed to her husband by failing to

properly maintain the medical equipment it provided during this emergency. The District

Court granted Appellees’ motion for summary judgment. We will affirm.

                                  I. BACKGROUND

      On June 9, 2007, Mrs. Abramson and her husband Martin, who had a history of

heart problems, were having dinner with family and friends at the Hotel when, sometime

between 8:00 and 9:00 p.m., he went into cardiac arrest. Mrs. Abramson, a registered

nurse certified in CPR, called out for help and attended to her husband. Nurse Resie

Weaver and Doctor Eric Berkowitz (both of whom were hotel guests with Basic Life

Support training) quickly responded, and the three began to perform CPR. At

approximately 9:00 p.m., Mrs. Abramson asked a restaurant employee to call a doctor.

The employee immediately informed the hostess, who called the Hotel’s emergency


                                            2
hotline. A loss prevention officer (“LPO”) received the call and, at 9:05 p.m., sent a

radio transmission asking on-duty LPOs to report to the restaurant. At 9:07 p.m., the

LPO called MoBay Hope Medical Centre (“MoBay Hope”) for an ambulance.

       Two LPOs and Assistant Director of Loss Prevention Ricardo Daley arrived at the

restaurant. Because Mr. Abramson was having difficulty breathing, one of the LPOs

stayed with him while Mr. Daley left to get an oxygen tank and the other LPO left to get

an automated external defibrillator (“AED”), both returning with the items minutes later.

When the CPR and oxygen failed to help, AED shocks were administered. There is a

dispute as to whether the oxygen tank and AED were functioning properly. According to

Nurse Weaver and Dr. Berkowitz, the AED was functioning; Nurse Weaver testified that

the oxygen tank was functioning as well. On the other hand, Mrs. Abramson and her

cousin testified that the oxygen tank’s gauge was on empty and that, because the AED

was not charged, Mr. Abramson received only a “quiver” of a jolt. (App. 108, 368). For

purposes of this appeal, we view this dispute in Mrs. Abramson’s favor and assume that

the equipment malfunctioned as described.

       The ambulance arrived at the Hotel at 9:19 p.m. and took Mr. Abramson to

MoBay Hope. Mrs. Abramson concedes that from the time of her husband’s collapse

until he was taken away by ambulance, “he had medical care being provided to him” by

“[p]eople that were trained.” (App. 94, 119, 307). Mr. Abramson was moved to another

facility in Jamaica, and was then airlifted to a medical center in Florida, where he died on

June 11, 2007. Mrs. Abramson’s medical expert opined that if emergency personnel or

functioning medical equipment had arrived at the Hotel sooner, Mr. Abramson may have

                                             3
had at least a 50% chance of long-term survival.

       Mrs. Abramson retained a hotel consulting expert who concluded that, considering

the size of the Hotel, it was “inexcusable” to have only one oxygen tank and AED on

hand. (App. 433). He also opined that it was customary for hotels to inspect and record

the fitness of their emergency medical equipment. Mr. Daley testified that the Hotel

inspected its medical emergency procedures and equipment, but no corroborating records

were produced.

       On June 5, 2009, Mrs. Abramson commenced this action in the Superior Court of

New Jersey; it was then removed to the U.S. District Court for the District of New Jersey.

She asserts various negligence and related state law claims predicated on the theory that

the Hotel breached the duty of care owed to her husband, substantially increasing his risk

of death. Appellees moved for summary judgment, and the District Court granted the

motion, concluding that Mrs. Abramson had failed to raise a genuine dispute of material

fact as to whether the Hotel breached its duty of care. According to the Court, the

undisputed evidence showed that (1) the Hotel discharged its duty to summon medical

help and, until help arrived, provide basic first aid, and (2) to the extent that the Hotel

assumed a greater duty by providing further assistance, the New Jersey Good Samaritan

Act immunized Appellees from liability. We will affirm.

                                      II. ANALYSIS 1

       We review the grant of summary judgment de novo, applying the same standard as


       1
         The District Court had jurisdiction under 28 U.S.C. § 1332, and we have
jurisdiction under 28 U.S.C. § 1291.
                                               4
did the District Court. Norfolk S. Ry. Co. v. Basell USA Inc., 512 F.3d 86, 91 (3d Cir.

2008). Viewing the facts in the light most favorable to the nonmovant and drawing all

inferences in that party’s favor, summary judgment is appropriate only if the record

shows “that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

       Mrs. Abramson challenges the District Court’s determination of (1) the scope of

the duty that the Hotel owed her husband, and (2) the applicability of the Good Samaritan

Law. Regarding the first issue, she argues that, in addition to summoning help, hotels

have a duty to maintain in good working order basic medical equipment or, at least, the

emergency equipment advertised to be kept on the premises. As for the second issue, she

asserts that the Good Samaritan Law does not apply because the Hotel breached a

preexisting duty—i.e., the duty that is the subject of the first issue. 2

       The District Court correctly determined that a hotel’s duty to a guest in need is

limited to summoning medical help and, until it arrives, providing basic first aid. The

Hotel did not breach this duty because it indisputably called an ambulance immediately

after Mrs. Abramson asked the staff for help, and Mr. Abramson received CPR from

trained medical professionals while awaiting the ambulance. Moreover, to the extent that

the Hotel incurred a heightened duty by providing an oxygen tank and AED, the Good

Samaritan Act shields Appellees from any liability for negligence.


       2
        Mrs. Abramson also argues that the Hotel had a preexisting statutory duty to
maintain the AED in accordance with manufacturer’s operational guidelines. N.J.S.A. §§
2A:62A-25(b). Because she failed to raise this issue before the District Court, the record
is undeveloped, and there is nothing for us to review.
                                                5
       A.      The Hotel’s Limited Duty to Assist a Guest in Medical Need

       Under New Jersey law, which the parties agree governs, a plaintiff in a negligence

action must show that the defendant breached a duty of reasonable care, causing injury.

Jerista v. Murray, 883 A.2d 350, 360 (N.J. 2005). Generally, there is no duty to

affirmatively assist an injured person unless a special relationship, such as that between

an innkeeper and its guests, exists between the parties. See State v. Lisa, 919 A.2d 145,

158 (N.J. Super. App. Div. 2007); Restatement (Second) of Torts § 314A(2) (1965).

       Although the Supreme Court of New Jersey has not defined the duty that a hotel

owes a guest during a medical emergency, we predicted how it would do so in a case in

which a patron of a casino suffered cardiac arrest. Lundy v. Adamar of New Jersey, 34

F.3d 1173 (3d Cir. 1994). In Lundy, the casino was equipped with an intubation kit but

the on-duty nurse who responded did not bring it with her because she was not qualified

to perform the intubation procedure; she did, however, bring oxygen, which was utilized.

Id. at 1175. We predicted that the Supreme Court would adopt the standard of care set

forth in the Restatement (Second) of Torts § 314A, which provides that an innkeeper is

under a duty to its guests to “take reasonable action . . . to give them first aid after it

knows or has reason to know that they are ill or injured, and to care for them until they

can be cared for by others.” Id. at 1179. The commentary to § 314A states:

       The defendant . . . will seldom be required to do more than give such first
       aid as he reasonably can, and take reasonable steps to turn the sick man
       over to a physician, or to those who will look after him and see that medical
       assistance is obtained.

Restatement (Second) of Torts § 314A, cmt. f. We thus concluded that an innkeeper


                                                6
must only summon medical care when the need becomes apparent, and take reasonable

first aid measures until medical care arrives. 34 F.3d at 1179; see also id. at 1178 (citing

Szabo v. Pa. Ry. Co., 40 A.2d 562 (N.J. 1945), in which the Supreme Court held that an

employer has only a limited duty to obtain medical care for an injured employee when

the injury renders the employee helpless). We stated that the duty clearly “does not

extend to providing all medical care that the . . . innkeeper could reasonably foresee

might be needed.” Id. at 1179.

       Here, there is no dispute that the Hotel secured medical care for Mr. Abramson

minutes after Mrs. Abramson first asked its staff for help. Moreover, Mrs. Abramson

concedes that her husband was assisted by trained medical professionals, including

herself, from the moment of his collapse until he was taken away by ambulance. She

attempts to distinguish Lundy by arguing that while intubation is well beyond basic first

aid, an oxygen tank and AED are not. Lundy, she continues, rejects the notion that an

innkeeper is “required to maintain all of the equipment a hospital would have, but

supports the belief that basic essential equipment, such as an oxygen tank and

defibrillator, are to be maintained and in good working order.” (Appellant’s Br. 17). She

contends that, at a minimum, Lundy does not foreclose reading § 314A to impose a duty

to maintain in good working order any medical equipment advertised to be located on the

premises. 3

       Lundy’s reasoning clearly extends to this case, and a common understanding of


       3
        Mrs. Abramson frames this argument in terms of § 314A’s requirement of
“reasonable action.” We address it in terms of § 324 in Part II.B.
                                             7
“first aid” does not encompass the use of an oxygen tank or AED any more than it

encompasses an intubation kit. Rather, “first aid” involves simple procedures that can be

performed with minimal equipment and training, such as bandaging and repositioning.

CPR—which Mr. Abramson indisputably received—lies at the outer limit of the term.

American Red Cross & American Heart Association, Guidelines for First Aid (2010), pt.

17 at S935, available at http://circ.ahajournals.org/content/122/18_suppl_3/S934.full.pdf

+html (defining “first aid” as “the assessments and interventions that can be performed

by a bystander (or by the victim) with minimal or no medical equipment” and concluding

that “[t]here is insufficient evidence to recommend routine use of supplementary oxygen

by a first aid provider”); see also L.A. Fitness Int’l, LLC v. Mayer, 980 So. 2d 550, 559

(Fla. Dist. Ct. App. 2008) (holding that “first aid” does not include CPR or any other

skilled treatment that requires training); Salte v. YMCA of Metro. Chi. Found., 814

N.E.2d 610, 615 (Ill. App. Ct. 2004) (concluding that the use of a defibrillator was “far

beyond the type of ‘first aid’ contemplated by” § 314A). Accordingly, there is no

genuine dispute that the Hotel fulfilled its limited common law duty to summon help and,

until help arrived, provide basic first aid. 4

       B.      Voluntary Undertaking to Provide Assistance

       Mrs. Abramson argues that, even if the Hotel had no duty to provide a level of

care that included a functioning oxygen tank and AED, it voluntarily assumed that duty,


       4
         While the opinion of Mrs. Abramson’s hotel expert regarding industry custom
may inform the duty analysis, it does not displace controlling law on the issue. See Estate
of Elkerson v. N. Jersey Blood Ctr., 776 A.2d 244, 250 (N.J. Super. Ct. App. Div. 2001)
(citing Wellenheider v. Rader, 227 A.2d 329 (N.J. 1967)).
                                                 8
and then breached it by failing to maintain the equipment. As we understand her

argument, the Hotel voluntarily assumed this duty in three ways: (1) by procuring the

equipment and keeping it on site; (2) by undertaking to use the equipment to assist Mr.

Abramson; and (3) by advertising that such equipment was located on its premises.

       Because the Hotel did not breach its duty as innkeeper, any liability would have to

stem from its voluntary undertaking to provide assistance, as outlined in § 324 of the

Restatement (Second) of Torts:

       One who, being under no duty to do so, takes charge of another who is
       helpless adequately to aid or protect himself is subject to liability to the
       other for any bodily harm caused to him by
       (a) the failure of the actor to exercise reasonable care to secure the safety of
       the other while within the actor's charge, or
       (b) the actor's discontinuing his aid or protection, if by so doing he leaves
       the other in a worse position than when the actor took charge of him.

New Jersey’s Good Samaritan Act, N.J.S.A. § 2A:62A-1, however, shields from civil

liability volunteers who, in good faith, render care at the scene of an emergency, even if

they do so unreasonably. Lundy, 34 F.3d at 1180. Although the Act does not apply when

there was a preexisting duty that was breached, we have already determined that issue

against Mrs. Abramson. See id. (holding that the preexisting duty exception does not

apply “where the preexisting duty is a limited one and the alleged negligence is the

failure to provide a level of assistance beyond that required by the preexisting duty”).

Moreover, there is no allegation much less evidence of any bad faith. As the District

Court correctly determined, Appellees are immunized from any liability the Hotel might




                                              9
have incurred by undertaking to procure medical equipment or assist Mr. Abramson. 5

       Finally, we reject, without the need for much discussion, Mrs. Abramson’s claim

that she booked her room in reliance on the understanding that the Hotel had state-of-the-

art medical services in case of emergency. She does not assert a breach of contract or

fraud claim, but rather argues that the Hotel created a reasonable expectation that this

equipment would be available, resulting in a legal duty to maintain it in good working

order. Mrs. Abramson cites neither case law nor evidence to support her claim.

                                   III. CONCLUSION

       We will affirm the order of the District Court.




       5
        Mrs. Abramson does not claim that the lack of oxygen in the tank and lack of
charge in the AED caused harm to her husband; rather, she argues, they failed to save
him. Accordingly, even aside from the Good Samaritan Act, there would be no liability.
                                             10
