Should homeowner associations maintain defibrillators (or “AEDs”)? These life-saving devices can also be a source of major liability. Proceed with caution.

Homeowner associations are faced with an increasingly difficult decision of whether to maintain automated external defibrillators (or “AEDs”), especially as their populations age. The potential health benefits to maintaining AEDs onsite are substantial. Data suggest that prompt and proper application of an AED to someone suffering a sudden cardiac arrest greatly increases that person’s chances of survival.

Individuals Are Protected from Liability

Recognizing this, the California legislature has encouraged the use of AEDs by enacting California Civil Code Section 1714.21. Subsection (c) of that provision provides,

Any person who, in good faith and not for compensation, renders emergency care or treatment by the use of an AED at the scene of an emergency is not liable for any civil damages resulting from any acts or omissions in rendering the emergency care.

Thus, Section 1714.21 protects individuals who use an AED to render emergency care from civil liability.

Organizations Are Not Protected

This individual protection does not extend to a person or entity that acquires an AED for emergency use. Instead, a party acquiring an AED for emergency use must fulfill a plethora of statutory requirements in order to be protected from civil liability.

Statutory Requirements for AEDs

These requirements are set forth in California Health and Safety Code Section 1797.196, and include the following:

1. Comply with all regulations governing the placement of an AED.
2. Notify an agent of the local EMS agency of the existence, location, and type of AED acquired.
3. Ensure that the AED is maintained and tested according to the operation and maintenance guidelines set forth by the manufacturer.
4. Ensure that the AED is tested at least biannually and after each use.
5. Ensure that an inspection is made of all AEDs on the premises at least every 90 days for potential issues related to operability of the device, including a blinking light or other obvious defect that may suggest tampering or that another problem has arisen with the functionality of the AED.
6. Ensure that records of the maintenance and testing required pursuant to this paragraph are maintained.

Training  & Demonstration Requirements

In addition to the foregoing, when a building owner installs an AED, it must further:

1. At least once a year, notify the tenants as to the location of the AED units and provide information to tenants about who they can contact if they want to voluntarily take AED or CPR training.
2. At least once a year, offer a demonstration to at least one person associated with the building so that the person can be walked through how to use an AED properly in an emergency. The building owner may arrange for the demonstration or partner with a nonprofit organization to do so.
3. Next to the AED, post instructions, in no less than 14-point type, on how to use the AED.

These are onerous requirements. A homeowner association’s failure to fully implement each of these requirements may result in fines or, even more importantly, expose the association to potential liability. One scenario involving such exposure would be if a person were go into cardiac arrest and then suffer brain damage or die because of any alleged negligence by the association, its experts or even third parties with regards to the use or installation of an AED kept onsite by the association. A plaintiff’s attorney could point to any and all failures by the association to fully implement any of these requirements, no matter how small or temporary, in favor of holding the association liable for those injuries.

Continuing Risk to Associations

The burden on an association to observe all of the requirements set forth is not only substantial, but also continuing. As with any industry, there is often turnover with association employees, managers, directors and other staff. The failure of an association to fulfill training and maintenance requirements for all new personnel promptly, even once, could also expose the association to liability. Even if an association successfully defended against such a suit, doing so would most likely involve significant legal fees and costs that the association could not recover. Considering this, it is probably preferable to avoid, rather than win, any litigation relating to an association’s use and installation of an AED.

HOAs Are Not Required to Provide AEDs

As California case law currently stands, it does not appear that associations have a legal obligation to provide AEDs. The operative authority is the case of Verdugo v. Target Corp. (2014) 59 Cal.4th 312 (“Verdugo”), in which the California Supreme Court held that a private business did not have any duty to make an AED available to its customers. In rendering its decision, the court specifically cited the onerous maintenance and training requirements related to an AED device that would be placed on the business if it did have such a duty.

The ruling in Verdugo was limited to deciding, in the negative, the question of whether a retail business has a common law obligation to maintain an AED. On the other end of the spectrum, California Health & Safety Code Section 104113 requires health studious to acquire and maintain AEDs. Between these two extremes, there is currently a lot of uncertainty. Verdugo seems to suggest that there may be a common law duty to maintain an AED in situations where there is a heightened foreseeability of sudden cardiac failure. California courts have not determined where or how this “heightened foreseeability” may apply. They have not determined whether such a common law duty may attach to homeowner associations, in general, or even senior living communities in particular. However, at this point, California courts have not imposed a common law duty to acquire and maintain AEDs upon either group.

Considerations Upon Adding or Removing an AED

In conclusion, there are serious risks that each homeowner association should consider in determining whether to install, or continue to maintain AEDs. Should an association determine to install, or continue to maintain AEDs, it should ensure that it does so in strict compliance with the statutory provisions discussed above that allow for liability protection. It should also put in place a long-term plan that ensures that turnover in homeowner association staff or boards of directors will not result in any failure to meet ongoing maintenance and training requirements.

On the other hand, should an association determine to remove previously-installed AEDs, it should do so in a reasonable manner to avoid any potential liability based on member reliance on the previously available devices. This may include notifying all members by letter and/or newsletter, and making note of the decision at the next board meeting (and in the Board minutes) and the reasons for doing so.

Above all else, Boards of Directors should consult their legal counsel in making this determination.

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Jordan O’Brien, Esq. is an attorney with Angius & Terry, LLP, attorneys specializing in construction defect litigation and general counsel assistance for community associations throughout California, Nevada, and Florida.