Q: What is a company’s obligation to purchase an automatic external defibrillator (“AED”), and does that company face liability if it uses, or fails to use, the AED?
A: A company has no obligation to purchase an AED, and it is protected from civil liability in the manner of use of the AED, other than for acts of gross negligence or willful and wanton conduct.
New Hampshire has a statutory scheme regarding the purchase and use of AED devices. New Hampshire encourages the use and availability of these devices, but it does not require a company to acquire them. If an organization chooses to purchase an AED, it must train those “anticipated responders” who are expected to use the AED. Within 30 days of acquiring the AED, the organization must register it with the New Hampshire Department of Safety. Moreover, the company is shielded from liability “other than for gross negligence or willful and wanton acts or omissions.”
The New Hampshire Supreme Court has not addressed the issue of whether a company has a legal duty to use an AED in a given situation. Courts from other jurisdictions, which have interpreted statutes similar to New Hampshire’s, have concluded that a company is not required to use the device. The Florida District Court of Appeal considered whether a school should have used its AED that was located on or near a soccer field after a player collapsed. The court concluded that the school board had no duty to “maintain, make available, or use an AED.” Even if a duty existed, the school board would be immune from civil liability because it purchased an AED and had it available for use in the end zone of the soccer field.
Likewise, the New York Supreme Court, Appellate Division, concluded that a health club complied with its statutory obligation to have an AED on site, but that the health club had no duty to use the AED. The AED statute was “silent as to the clubs’ duty, if any, to use the devices.” New Hampshire’s statute is silent, as well.
New Hampshire law does not require a company to purchase an AED, but if the company decides to do so, it must register the AED and train appropriate personnel how to use the device.
Joel Emlen can be reached at joel.emlen@mclane.com.
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