                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


MICHAEL VERDUGO, brother of               No. 10-57008
Decedent; ROSEMARY VERDUGO,
mother, successor and heir of Mary           D.C. No.
Ann Verdugo, Decedent,                    2:10-cv-06930-
               Plaintiffs-Appellants,       ODW-AJW

                 v.
                                            OPINION
TARGET CORPORATION, a Minnesota
corporation,
             Defendant-Appellee.


      Appeal from the United States District Court
          for the Central District of California
       Otis D. Wright II, District Judge, Presiding

                 Argued May 7, 2012
              Submitted October 28, 2014
                 Pasadena, California

                 Filed October 28, 2014

       Before: Harry Pregerson, Susan P. Graber,
        and Marsha S. Berzon, Circuit Judges.

                  Per Curiam Opinion;
          Separate Opinion by Judge Pregerson
2                  VERDUGO V. TARGET CORP.

                           SUMMARY*


                          California Law

    After the California Supreme Court answered a question
that was certified by the panel, the panel affirmed the district
court’s dismissal of a case, and held that Target Corporation,
a commercial property owner, had no common law duty to
provide an Automatic External Defibrillator in its stores for
use in a medical emergency.

   Judge Pregerson wrote separately to express his hope that
Target will recognize its moral obligation to make Automatic
External Defibrillators available for use in a medical
emergency, and that the California legislature will take a hard
look at the issue.


                            COUNSEL

David Griffith Eisenstein, David G. Eisenstein Law Offices,
Carlsbad, California; Robert A. Roth, Tarkington, O’Neill,
Barrack & Chong, Berkeley, California, for Plaintiffs-
Appellants.

Ryan Moore Craig and Benjamin R. Trachtman, Trachtman
& Trachtman, Mission Viejo, California; Donald Manwell
Falk and Richard Caldarone, Mayer Brown LLP, Palo Alto,
California, for Defendant-Appellee.


  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                VERDUGO V. TARGET CORP.                       3

                          OPINION

PER CURIAM:

    Mary Ann Verdugo was shopping with her mother and
brother in a Pico Rivera, California, Target when she
experienced sudden cardiac arrest. There was no Automatic
External Defibrillator (“AED”) in the store, and by the time
paramedics arrived, Verdugo had died. Verdugo’s family
sued Target, alleging that as a commercial property owner,
Target had a common law duty to maintain an AED onsite.
Ruling that Target had no such duty, the district court
dismissed the Verdugos’ claim. The Verdugos appealed to
this court.

    We determined that California law did not clearly answer
the question whether Target was required to have AEDs in its
stores and viewed “the California Supreme Court [as] better
positioned to address [this] major question[] of California tort
law than this court.” Verdugo v. Target Corp., 704 F.3d
1044, 1046 (9th Cir. 2012). Accordingly, we certified a
question to the California Supreme Court pursuant to Rule
8.548 of the California Rules of Court. Id. at 1045. That
court construed the certified question as follows: “[W]hether,
under California law, the common law duty of reasonable
care that defendant Target Corporation (Target) owes to its
business customers includes an obligation to obtain and make
available on its business premises an automated (or
automatic) external defribrillator (AED) for use in a medical
emergency.” Verdugo v. Target Corp., 59 Cal. 4th 312, 316
(2014).

    The California Supreme Court has answered the restated
certified question as follows: “[U]nder California law,
4                VERDUGO V. TARGET CORP.

Target’s common law duty of care to its customers does not
include a duty to acquire and make available an AED for use
in a medical emergency.” Id. at 317. A copy of the
California Supreme Court’s opinion is attached as an
appendix to this opinion. We said that we would follow the
California Supreme Court’s guidance, 704 F.3d at 1050, and
we do. The district court’s ruling that Target had no common
law duty to provide an AED in its store is consistent with the
California Supreme Court’s answer to the certified question,
and so we AFFIRM.



PREGERSON, Circuit Judge, writing separately:

    The California Supreme Court has spoken. This decision
holds that “under California law, Target’s common law duty
of care to its customers does not include a duty to acquire and
make available an AED for use in a medical emergency.”
Verdugo v. Target Corp., 59 Cal. 4th 312, 317 (2014). And
so, in this diversity case, that holding controls. But that
decision troubles me. Therefore, I write separately hoping
that big box stores like Target will, at the very least,
recognize their moral obligation to make AEDs available for
use in a medical emergency. Should that not come to pass, I
hope that our California Legislature takes a hard look at this
issue and considers a statutory standard of care that will
protect consumers by requiring big box stores to make life-
saving AEDs available.

    Stores like Target have a “special relationship” with their
business invitees. This special relationship creates an
affirmative duty that requires a business to provide first aid to
invitees who become ill or injured on the premises, and “to
                VERDUGO V. TARGET CORP.                       5

care for them until they can be cared for by others.”
Restatement (Second) of Torts § 314A. I believe that AEDs
should be considered first aid. They are crucial to the
survival of sudden cardiac arrest victims. They are
inexpensive, nearly foolproof, and are necessary when, as
happened here, paramedics cannot reach a victim in time to
save the person’s life. I believe that AEDs should be as
common as first aid kits, and that big box stores like Target
should be required to make them available to their customers
who suffer sudden cardiac arrest.

    About 360,000 Americans are treated by emergency
medical services for sudden cardiac arrest before reaching a
hospital. See Verdugo, 59 Cal. 4th at 319. “Less than 10
percent of those victims survive.” Id. Victims of sudden
cardiac arrest collapse and quickly lose consciousness—often
without warning. Sudden cardiac arrest is treatable, but time
is of the essence when the life of a sudden cardiac arrest
victim is in the balance: “every minute that passes before
returning the heart to a normal rhythm decreases the chance
of survival by 10 percent.” See Cardiac Arrest Survival Act
of 2000, Pub. L. No. 106-505, § 402(5), 114 Stat. 2314
(2000).

    There is good reason for big box stores like Target to be
equipped with AEDs: they save lives. The high percentage of
death due to sudden cardiac arrest can be reduced by the
quick use of a defibrillator. When “CPR and AEDs are used
within three to five minutes from the onset of collapse, the
survival rate of a sudden cardiac arrest victim is as high as 50
to 70 percent.” Automatic External Defibrillators: Hearing
on S.B. 1436 Before the S. Comm. on Health, 2011–2012
Reg. Sess. 1–2 (Cal. 2012). Yet, big box stores like Target
are currently not required by the State of California to have
6               VERDUGO V. TARGET CORP.

available thse life-saving devices for their patrons. But big
box stores are not prevented from making a voluntary choice
to do so.

    Not only is the use of an AED the most effective way to
reduce death due to sudden cardiac arrest, but AEDs are also
relatively inexpensive. Target used to sell Phillips HeartStart
AEDs on its website for about $1,200. Although Target has
removed the product from its website, these devices can still
be obtained for similarly inexpensive prices elsewhere. See
e.g., http://www.heartsmart.com/philips-heartstart-onsite-aed-
package-p/bus-pkg-onsite.htm (selling the Phillips HeartStart
AED for $1,199) (last visited Oct. 16, 2014);
http://phss.redcross.org/aedoffers/ (offering several different
brands of defibrillators) (last visited Oct. 16, 2014).

    Moreover, modern AEDs are nearly foolproof even
without training. One study in Circulation, the American
Heart Association journal, showed that untrained sixth
graders safely and properly used AEDs and took only slightly
longer than emergency-trained personnel to deliver the
defibrillator shock. See John W. Gundry et al., Comparison
of Naive Sixth-Grade Children with Trained Professionals in
the Use of an Automated External Defibrillator, 100
Circulation 1703 (1999). Because little training is involved,
and many of the devices provide audio step-by-step
instructions, it would not be difficult for big box stores to
provide the minimum training required to qualify for
immunity from liability under California law. See Cal.
Health & Safety Code § 1797.196.

    Big box stores in particular should be required to equip
their stores with AEDs. The sheer size of these stores
increases the time for paramedics to reach a sudden cardiac
                 VERDUGO V. TARGET CORP.                       7

arrest victim, making quick access to an AED of paramount
importance. Mary Ann Verdugo died in the Pico Rivera
Target store in part because the paramedics could not get to
her inside the store in time to administer an AED. It is
obvious why paramedics would have a hard time getting
to the Target location and navigating inside the store within
the five minute time window—the average size of a Target
store is 135,000 square feet.             See Press Release,
Target Corporation, Target to Open TargetExpress Small-
Format Store in San Diego (Sept. 18, 2014), available
at http://pressroom.target.com/news/target-to-open-
targetexpress-small-format-store-in-san-diego (last visited
Oct. 16, 2014). Thus, if another customer suffers sudden
cardiac arrest in a big box store like Target, the probability of
her survival falls significantly if there is no access to a
defibrillator in the store.

    Many states, including California, have examined this
issue and developed public policies promoting AED use,
including expanding civil immunity to businesses that have
installed AEDs and meet certain statutory requirements. See
Kevin M. Rodkey, Medical Technology Meets the Maryland
General Assembly: A Case Study in Handling Advances in
Automated External Defibrillator Technology, 12 J. Health
Care L. & Pol’y 81 (2009). However, California’s immunity
statute does not require businesses to install and maintain
AEDs, despite all the reasons why AEDs are crucial first aid
equipment for sudden cardiac arrest victims.

    Yet at least one state—Oregon—has enacted a statute that
requires big box stores to have an AED. The Oregon statute
provides that a “place of public assembly,” meaning “a single
building that has 50,000 square feet or more of indoor floor
space and where . . . [t]he public congregates for purposes
8               VERDUGO V. TARGET CORP.

such as . . . shopping, . . . [and a]t least 50 individuals
congregate on a normal business day” is required to “have on
the premises at least one [AED].” ORS § 431.690. Upon
enacting the law, one Oregon State Senator called AEDs “the
fire extinguishers of the 21st century—the sooner more are
available in public places, the more lives we can save.” News
Release, Senate Majority Office, Expanded Access to
Defibrillators Wins Senate Support, Oregon State Legislature
(OR Legis. News Rel., 4/28/2009).

    If Oregon can require businesses such as big box stores to
provide this minimally burdensome, yet life-saving
equipment, so too can California, a leader in consumer
protection. I implore the California Legislature to consider
this issue. I also hope that Target and other big box retailers
will uphold their moral obligation to ensure the health and
safety of their customers by voluntarily installing AEDs in
their stores.
VERDUGO V. TARGET CORP.   9




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