Clark Hill PLC reports on expansion of liability protection of business and private use and provision of AEDs. Adds requirement to inspect monthly.
https://www.jdsupra.com/legalnews/texas-legislature-amends-aed-protections-3108146/The Texas Legislative Regular Session 2021 brought us an interesting panoply of statutes that address many controversial issues. One topic that seems to largely have unanimous public support is Texas Senate Bill 199, which requires all owners of automatic external defibrillators (“AEDs”) to check them monthly. The underlying intent of the bill is to extend additional immunity to businesses and other entities in the state. Arguably, governmental entities already have significant protection from liability when it comes to these lifesaving devices.
In 1999 and again in 2001, the Texas Legislature passed bills to shield laypersons who use AEDs at the scene of an emergency from liability. This led to widespread usage at gyms, malls, airports, state buildings, and other businesses, saving countless lives. Advancement in AED technology allows the devices to be easy to use, and in many instances, the rescuer is not an employee but a customer or bystander. S.B. 199 extends current liability protections regarding AED usage to businesses and property owners and repeals burdensome training requirements to better align training with current AED technology.
Notably, however, the bill requires a monthly inspection of defibrillators to ensure that they are correctly placed at their designated location, reasonably appear ready for use, and do not reasonably appear to be damaged in a manner that could prevent operation.
In addition, the bill extends immunity against liability of civil damages for any entity that provides training in the use of an AED related to any of the following:
The prescription, acquisition, or training in the use of the automated external defibrillator; or
Any use, attempted use of, or failure to use the automated external defibrillator.
Any person or entity that acquires an AED and any entity that owns, occupies, manages, or is otherwise responsible for the designated location where the automated external defibrillator is placed are not liable for civil damages related to the use or attempted use of or the failure to use the AED unless the conduct is willfully or wantonly negligent.
It remains to be seen how this new bill will be interpreted to interact with other provisions that address liability and immunity, such as the Texas Tort Claims Act, which waives sovereign immunity (with exceptions, exclusions, and limits) for personal injury or death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law. See Tex. Civ. Prac. & Rem. § 101.021. Presumptively the newer and more specific language with respect to AEDs would likely prevail and preclude a governmental entity from being liable.
