Morrison Law Journal
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The Morrison Law Journal
April 2018
Volume XIII, Edition 4

A Victory for Landlords: Court of Appeal Rules that Commercial Landlord Who Leases
Space to an Operator of a Health Studio Does Not Owe a Duty to Maintain an Automated
External Defibrillator for Use by Members of the Health Studio

By: Edward F. Morrison, Jr., Esq.
Larry A. Schwartz, Esq.

As many are aware, there has been an enormous growth of health fitness facilities in California and other locales. In California, Health and Safety Code § 104113 requires that every "health studio"— which is defined as a "facility permitting the use of its facilities and equipment or access to its facilities and equipment, to individuals or groups for physical exercise, body building, reducing, figure development, fitness training, or any other similar purpose, on a membership basis" — maintain an automated, external defibrillator ("AED") on the premises. There is no question that the operator of the health studio is obligated to acquire and maintain an AED. However, a question has arisen as to whether the commercial landlord, who leases the space to the operator of a health studio, also owes a duty under the Health and Safety Code to acquire and maintain an AED at the space or ensure that the operator do so.

This precise issue arose in the matter of Maryam Day v. Lupo Vine Street, LP, (2018) 22 Cal.App.5th 62 ("Day case"). In the Day case, Lupo Vine Street, LP and related persons and/or trusts ("Lupo") owned a multiunit commercial building in Los Angeles. Lupo entered into a five year lease with Wildcard Boxing Club, Inc. ("Wildcard Club") for two units, covering approximately 5,000 square feet of space, for use as a "boxing club/athletic club." On January 30, 2016, Omorishanla Olayinka was working with a trainer at the Wildcard Club when he suffered a fatal heart attack. Wildcard Club did not have the required AED on the premises. Olayinka's surviving spouse, Maryam Day, a daughter and the decedent's estate filed a lawsuit against Wildcard Club, Wildcard Club's owner and Lupo.

Lupo moved for summary judgment on the grounds that, among other things, it had no duty under Health and Safety Code § 104113 or common law to furnish the premises with an AED, even though it knew that a health studio was being operated. The Trial Court granted summary judgment ruling there was no duty on the part of Lupo to maintain the AED.

On appeal, the Court of Appeal noted that the California Supreme Court recently addressed the issue of whether a large department store owed its customers a duty to make available on its premises an AED for use in a medical emergency. See, Verdugo v. Target Corp. (2014) 59 Cal.4th 312 ("Verdugo"). The Court of Appeal noted that the Supreme Court's decision in Verdugo reflects an analysis involving a number of factors, including the degree of foreseeability that a danger will arise on the business' premises,


and the relative burden that providing a particular precautionary measure will place on the business. In Verdugo, the Supreme Court found it would "be more than a minor or minimal burden" to force compliance with the Health and Safety Code on the department store. The Supreme Court, after considering the foreseeability factor, concluded that the operator of the store, Target, owed no common law duty to its customers to acquire and make available an AED.

Or course, the Day case dealt with an establishment, that being a health studio, that is required to acquire and maintain an AED. However, applying the analysis in Verdugo, the Court of Appeal ruled that Lupo did not have a duty to ensure that the Wildcard Club provide an AED, and was not liable to the plaintiffs.

The Day case is important not only for health studios, but in general for operators of businesses (and their landlords) where a customer or invitee becomes seriously ill and is in need of an AED.

About the Authors: Edward F. Morrison, Jr. is the founding partner and Larry A. Schwartz is Of Counsel to The Morrison Law Group, a professional corporation. Their biographies can be viewed at

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