The Illinois Supreme Court Makes Clear:“You’ve Got to Have Heart. All You Really Need is Heart”

The Illinois Supreme Court Makes Clear:“You’ve Got to Have Heart. All You Really Need is Heart”1

(Or at Least You Must Use an Available Defibrillator)

BY JEFFREY BERMAN

Fitness centers and clubs in their various forms and iterations seemingly are almost as ubiquitous these days as dandelions after spring rains. In what should be viewed as a stern warning to these kinds of omnipresent businesses to up their level of training and preparedness for customer calamities, on May 19, 2022, the Illinois Supreme Court issued a unanimous decision in a personal injury case2 holding that a fitness center will face liability claims for failing to come to the aid of a patron who suffered a medical emergency by using an available Automated External Defibrillator (“AED”).3

123The main question presented in the case was whether a physical fitness facility has a duty under either the Physical Fitness Facility Medical Emergency Preparedness Act (Facility Preparedness Act)4 or the Automated External Defibrillator Act (AED Act)5 to use an AED when a patron is having an apparent cardiac event and non-use of the AED would amount to willful 1 Jerry Ross, Richard Adler, “Heart,” Damn

Yankees. https://www.lyricsondemand.com/ soundtracks/d/damnyankeeslyrics/heartlyrics.html. 2 Dawkins v. Fitness International, LLC, 2022

IL 127561. 3 An AED can diagnose ventricular fibrillation and treat it through defibrillation by electrical therapy. Id. at ¶ 6. 4 210 ILCS 74/1 et seq. (2012). 5 410 ILCS 4/1 et seq. (2012). and wanton misconduct.6 Leo Dawkins (“Dawkins” or “Plaintiff”), individually and as next friend of his wife, Dollett Smith Dawkins (“Dollet”), filed a complaint for Jeffrey Berman of the law firm personal injury and spousal loss of consortium against Fitness Interof Anderson national LLC, LA Fitness, and LA + Wanca has Fitness Oswego (“LA Fitness”). The extensive experience in commercial litigation, class Plaintiff’s operative pleading alleged causes of action for both negligence and willful and wanton misconduct actions and based on LA Fitness employees’ insurance cov- failure to use an available AED as reerage litigation in state and federal courts across the country. quired by statute, even though there was an employee trained to use the He is Co-Editor of the Docket and currently serves as the Secretary of the LCBA Board of Trustees. 6 Dawkins v. Fitness Int’l, LLC, 2022 IL 127561, at ¶ 1.

AED on the premises.7

As alleged in the Complaint, Dollett was exercising at an LA Fitness facility in Oswego, Illinois, on November 18, 2012, when she “collapsed, stopped breathing and lost her pulse and circulation.”8 LA Fitness staff members were aware of Dollett’s medical emergency.9 Other patrons at the facility attempted to administer CPR to Dollett unsuccessfully and shouted to Fitness staff for aid and assistance.10

The complaint alleged there was an available AED and an employee trained to use it was on site at the time.11 However, neither the trained employee nor any other employees used the AED on Dollett.12

While at the LA Fitness facility, Dollett was experiencing a ventricular fibrillation.13 It takes less than one minute to apply AED treatment.14 Uncorrected, the condition leads to cardiac arrest, which in turn can lead to anoxic brain injury due to the lack of an oxygenated blood supply.15

The LA Fitness facility where Dollett’s injuries occurred was covered by the Facility Preparedness Act.16 Plaintiff alleged that the Facility Preparedness Act required LA Fitness to (1) have a functioning AED on site, (2) have staff properly trained in the assessment of patrons and the use of AEDs, (3) have properly trained staff who were required to know how to assess patrons who became unconscious for breathing and signs of pulse and circulation in preparation for employing an AED device, and (4) have a medical emergency plan for responding to medical emergencies.17 Plaintiff further alleged that the Facility Preparedness Act also required LA Fit7 Id. at ¶ 4. 8 Id. at ¶ 5. 9 Id. at ¶ 5. 10 Id. at ¶ 5. 11 Id. at ¶ 5. 12 Id. at ¶ 5. 13 Id. at ¶ 6. 14 Id. at ¶ 6. 15 Id. at ¶ 6. 16 Id. at ¶ 7. 17 Id. at ¶ 7.

ness staff to (1) assess unconscious patrons for signs of breathing, pulse, and circulation pursuant to the training of the AED operators and Fitness’s medical emergency plan; (2) assess unconscious patrons for use of an AED; (3) attach the AED pads on an unconscious patron who had no breathing, no pulse, or no signs of circulation; and (4) follow the visual and voice prompts on the AED.18 Plaintiff further alleged that when LA Plaintiff asserted that, had Fitness violated the Facility Preparedness Act it acted an LA Fitness employee willfully, wantonly, and in utter disregard for Dolconnected the AED device lett’s safety in several ways, including by failing to meet these specific requireto Dollett in a timely ments.19 Plaintiff alleged that fashion “as required” Dollett was rendered a disabled person with and followed the AED’s permanent and irreparable brain damage as a proxiprompts, the AED would mate result of LA Fitness’s violation of the Facility Preparedness Act and its have restored cardiac willful and wanton misconduct in failing to use an function and oxygenated available AED on Dollett in a timely fashion after blood to Dollett’s brain, she suffered cardiac arrest while exercising at one of thereby avoiding or their facilities.20 Plaintiff asserted that, had an LA Fitness employee connectlessening her brain injury. ed the AED device to Dollett in a timely fashion “as required” and followed the AED’s prompts, the AED would have restored cardiac function and oxygenated blood to Dollett’s brain, thereby avoiding or lessening her brain injury.21 LA Fitness moved to dismiss. The Circuit Court granted the motion as to Plaintiff’s negligence claims (Counts III and IV) because: (1) Dollett had signed a membership agreement that explicitly released LA Fitness and its employees from any liability for negligence in the event that Dollett were to suffer a heart attack, stroke, or other injury while working out at the facility and (2) the Facility Preparedness Act barred actions based on negligence that are related to the use or non-use of an AED where the defendant is compliant with the Facility Preparedness Act’s requirements, such as having an AED and an employee trained to use 18 Id. at ¶ 8. 19 Id. at ¶ 9. 20 Id. at ¶¶ 3, 10. 21 Id. at ¶ 10.

it on site.22

In affidavits filed in support of its motion to dismiss Plaintiff’s willful and wanton claims (Counts I and II) under section 2-619(a)(9)23 of the Code of Civil Procedure,24 LA Fitness asserted that it fulfilled the requirements of the Facility Preparedness Act and was therefore immune from liability.25 It further maintained that the Facility Preparedness Act created no duty to use an AED and afforded no private right of action to enforce any such duty and that Plaintiff had not pled a basis for his allegation that LA Fitness owed Dollett a duty to use the AED on her. LA Fitness also argued that neither its failure to use its AED nor any of the other alleged acts or omissions rose to the level of willful and wanton misconduct and that plaintiff had failed to plead facts in support of his claim that any such actions or omissions proximately caused Dollett’s injuries.26

After briefing and oral argument, the Circuit Court also dismissed Plaintiff’s willful and wanton claims with prejudice, finding LA Fitness did not owe a duty to use the AED.27

On appeal, LA Fitness argued the AED Act and the Facility Preparedness Act should be read as preserving liability only for willful and wanton misuse of an AED, but not for a failure to use an AED, even in circumstances where the failure to use an AED would amount to willful and wanton conduct.28 LA Fitness further argued that the AED Act’s reference to acts or omissions involving the use of an AED and the Facility Preparedness Act’s reference to “use or non-use” of an AED were meant to proscribe only the “omissions” of acts or procedures that are necessary to the proper operation of an AED when an AED is used, rather than to require the use of an AED in the first place.29

The Third District Appellate Court found LA Fitness’s interpretation to be contrary to the plain language of the statutes at issue.30 The Appellate Court thus reversed the Circuit Court’s dismissal of the willful and wanton claims in Counts I and II. In doing so, it first found that the Facility Preparedness Act when read in conjunction with the AED Act gave rise to a duty to use the AED.31 The Appellate Court further held that civil liability may attach to willful and wanton failures to use an AED.32 The appellate court also found that a private right of action could be implied from the Facility Preparedness Act.33

22 Id. at ¶ 12. 23 735 ILCS 5/2-619(a)(9). 24 2022 IL 127561, at ¶ 13. 25 Id. 26 Id. at ¶ 14. 27 Id. at ¶ 15. 28 Id. at ¶ 17. 29 Id. 30 Id. at ¶¶ 18-21; see 2020 IL App (3d) 170702-U, ¶¶ 30, 31. 31 Id. at ¶ 18; see 2020 IL App (3d) 170702¬U, ¶¶ 26, 30. 32 Id. at ¶¶ 18-19; see 2020 IL App (3d) 170702¬U, ¶¶ 25, 30-31. 33 Id. at ¶ 21; see 2020 IL App (3d) 170702¬U, ¶¶ 33-38, 44.

The Supreme Court examined the language of the Facility Preparedness Act and AED Act, noting that the question of whether a statutory duty was created that avoids dismissal of the willful and wanton counts presented an issue of statutory construction subject to well-settled rules.34 Its analysis of the statutes at issue led it ultimately to agree with the Appellate Court.35

The Supreme Court observed that Section 5 of the AED Act articulated the legislative intent behind the statute and provided “that timely attention in medical emergencies saves lives, and that trained use of [AEDs] in medical emergency response can increase the number of lives saved.”36 It further noted the intent of the General Assembly to “to set standards for the use of [AEDs] and to encourage their use.”37

The Supreme Court held that, “by their plain terms, neither of these statutes immunizes a defendant from liability arising from the failure to use an AED on an injured person, provided that such failure was willful and wanton.”38 As such, “civil liability may attach to willful and wanton failures to use an AED. In other words, a right of action does exist for willful and wanton misconduct in connection with the non-use of an AED.”39

The Supreme Court also sternly rejected LA Fitness’ converse statutory construction arguments. The Court observed that LA Fitness would read the statute to provide that “a fitness facility could fully comply with the Facility Preparedness Act by having a functioning AED on site, training a staff member in its use, and developing an emergency medical plan, without having any obligation to implement the plan or to have the trained employee use the AED on a stricken patron under any circumstances.”40 The Court concluded that “reading of the statute would vitiate, or at least frustrate, the expressed purpose of the statutory scheme — which is to protect patrons of fitness facilities and save lives by encouraging the proper use of AEDs — and it would render the statutes absurd and ineffectual.”41 “Thus, any facility desiring maximum protection of its interests would instruct its staff to never use an AED.”42 That construction offered by LA Fitness would, in the Supreme Court’s view, “lead to an absurd result and would be just the opposite of the legislative intent.”43

Instead, the Supreme Court embraced the conclusions on point by the Appellate Court, which stated: “[t]his interpretation flouts the plain language of the statutes, their expressed purposes, and common sense.

34 Id. at ¶¶ 26-27. 35 Id. at ¶¶ 28- 40. 36 Id. at ¶ 37, citing 410 ILCS 4/5. 37 Id. 38 Id. at ¶ 33. 39 Id. 40 Id. at ¶ 40. 41 Id. 42 Id. at ¶ 34. 43 Id.