I'll admit that part of me feels old when I read this opinion. Or at least old-fashioned. It's likely true that a modern incarnation of the Traynor court would have gone the other way in this one. Whereas I would sign on to today's California Supreme Court's opinion, which holds that there is no common law duty for even big-box stores to have automated external defibrillators (AEDs) on their premises.
A court that was revolutionary might well find such an obligation. There are, after all, lots of heart attacks. For big-box stores, the cost of including AEDs might be relatively nominal. So one might well think that imposing a common law duty would save lives at minimal cost. Which, broadly speaking, seems the right thing to do. Imposing such a duty seems far less revolutionary (or burdensome) than the California Supreme Court's decades-old decision to sometimes impose affirmative duties on businesses to protect against third party criminal assaults. Guards costs a lot more, after all, than $1200 AEDs.
Nonetheless, I agree with the California Supreme Court. A thousand bucks or so isn't chump change. At this point, I'm not willing to impose a duty. If only because it'd be very hard (and messy) to figure out just how large a store would need to be before AEDs are required.
So in the meantime, stores can dial 911. Hopefully paramedics will get there soon. Hopefully. And if they don't, well, that's terrible, and a tragedy, but not the basis for a lawsuit.
Give it some time and I might go the other way. Drop the cost down to a hundred bucks or so and, to be honest, I'd probably impose a duty. As potentially irrational as that might be, since I concede that there's no material difference to a Target between $1200 and $100. Nonetheless, at $100, I might well be happy with imposing a common law duty on pretty much every nontrivial shop to have an AED, or at least one in close proximity.
One tangential point. On numerous occasions in this opinion the California Supreme Court cites material available on the internet. Which is great. But the citation for those authorities is supposed to indicate when that material was viewed; e.g., "as of 6/12/2014" or "viewed on June 12, 2014". But instead of an actual date, the opinion (e.g., in footnote 14, and on pages 36 through 38) reads "[as of OPN FILE DATE]."
Which is wrong for two reasons. First, it looks like a draft. Where's the actual date? Seems like someone forgot to edit this stuff out. Second, that's not what you're supposed to do. You're not supposed to include a date -- e.g., the opinion file date -- on these citations unless you actually review the relevant citations on that particular date. Which isn't what seems to have transpired here. Instead, the citation was probably actually viewed back when the opinion was drafted (i.e., earlier this year) and then the author puts in a placeholder that says to later include the date on which the opinion was in fact published. That would be fine if the person in charge of including that later date (e.g., the publisher) was also charged with pulling up the citation and making sure that the authority was actually there. But I see no indication that this is what was intended. It instead reads like the author is telling the publisher to just include a particular date (i.e., the filing date) the day the opinion's published. That's not okay. It defeats the purpose of the date. I understand why an author might not want to include an earlier date, as it may reveal when the opinion was actually drafted (God forbid!). But if you want to put in a later date, you've got to actually pull up the authority again. Making sure it's both still there as well as that it still supports the proposition for which it's cited.
A minor point, but one worth mentioning. As well as correcting.
