Question: My condominium association is considering purchasing an “AED” for our clubhouse. From the conversation at the meeting I understand that this is an emergency medical device to use when someone is having a heart attack. Is it appropriate for associations to purchase and install these types of devices? Wouldn’t it create significant liability for the community? (A.R. by e-mail)
Answer: It has become common for various types of facilities to install automated external defibrillator devices or AEDs, including community associations. It is not uncommon to see them installed in schools, gyms and other facilities that are frequented by large numbers of people. Additionally, I have had many association clients who have considered purchasing and installing these types of devices.
While there appears to be no debate that AED’s can save lives, the acquisition and use of an AED by an association is not completely without potential liability.
In order to encourage facilities and organizations to purchase and install AEDs, the Florida Legislature adopted the Cardiac Arrest Survival Act, found at Section 768.1325 of the Florida Statutes. The Cardiac Act provides immunity from civil liability for “any person who uses or attempts to use an automated external defibrillator device on a victim of a perceived medical emergency, without objection of the victim of the perceived medical emergency.” For example, if someone clutches his or her chest and collapses, and a reasonable person in a similar situation would assume that such person was having a heart attack, the AED can likely be used.
In addition to the immunity provided to the person using the AED, the Cardiac Act extends immunity to condominium and homeowners’ associations that purchase AEDs. However, such immunity is not without limitations. An association must ensure that the AED is properly maintained and tested, and depending on the nature of the device installed, an association may also be required to provide appropriate training.
Further, pursuant to the Cardiac Act, there is no immunity from civil liability if the person using the AED acted with “willful or criminal misconduct, gross negligence, reckless disregard or misconduct, or a conscious, flagrant indifference to the rights or safety of the victim who was harmed.”
For example, if an AED has a dead battery or malfunctions in some other way that relates to its maintenance, there may be no immunity under the Cardiac Act.
The case law in Florida generally suggests that there is no liability associated with a property owner’s decision not to purchase and maintain a defibrillator. Further, the Cardiac Act specifically “does not require that an automated external defibrillator device be placed at any building or other location or require an acquirer to make available on its premises one or more employees or agents trained in the use of the device.”
The Cardiac Act only applies to instances where an AED is used to resuscitate an individual. In first aid situations not involving an AED, the “Good Samaritan Act”, found at Section 768.13 of the Florida Statutes applies. The Good Samaritan Act provides that general negligence standards apply when a person otherwise undertakes to gratuitously render emergency care. While the use of a properly maintained AED by a properly trained person would only subject a covered person or entity to liability where the standards set forth in the Cardiac Act are breached, it appears that ordinary negligence standards applies to other types of first aid.
I always advise an association considering such a purchase to review the issue with its insurance professionals and legal services provider before making a decision for the individual community.