dissenting:
Because I conclude that, when viewing the allegations in plaintiffs’ complaint in the light most favorable to plaintiffs, a reasonable jury could find that defendant breached its duty to plaintiffs, I respectfully dissent.
Whether a duty exists is a question of law. Godee, 327 Ill. App. 3d at 697. However, the reasonableness of the care exercised by the defendant is generally a question of fact and becomes a matter of law only where reasonable people could not disagree as to the conclusions resulting from the facts. Agnello, 110 Ill. App. 3d at 917-19; see also Jones, 257 Ill. App. 3d at 853.
I disagree with the majority’s and defendant’s characterization of the issue as solely a legal question of whether defendant had a duty to provide a defibrillator. Defendant’s duty, as it acknowledges, was to render reasonable first aid until professional assistance arrived. See Restatement (Second) of Torts § 314A, Comment /, at 120 (1965). Whether reasonable assistance encompasses the use of a defibrillator by defendant’s staff paramedic is, I believe, a factual question. I further believe that a reasonable jury could find that defendant did not provide reasonable first aid to Terry when it failed to equip its paramedic with a defibrillator to use on Terry.
The cases relied upon by the majority do not support its conclusion. Although the majority is correct in stating that the court in Atcovitz held that a tennis club owed no duty to its member to acquire and maintain a defibrillator on its premises, the majority fails to point out that the court based its holding on a Pennsylvania statute that regulated the maintenance and use of defibrillators. Atcovitz, 571 Pa. at 589, 812 A.2d at 1223 (“the implication of the Legislature’s exclusion of untrained laypersons from the [statute] and its regulations is to preclude unqualified and untrained individuals from administering emergency medical services using [a defibrillator]”). Rutnik is also factually distinguishable, as the plaintiff in that case was injured while participating in a racquetball tournament sponsored by one of the defendants. The court held that the plaintiff assumed the risk of injury inherent when participating in a strenuous sport. Rutnik, 249 A.D.2d at 875, 672 N.Y.S.2d at 452-53.
Finally, I find the majority’s reliance on Lundy to also be misplaced. In that case, the court stated that the duty recognized in Restatement section 314A, as the majority here points out, did not extend to providing all medical care that the carrier or innkeeper could reasonably foresee might be needed by a patron. I do not quarrel with this interpretation. The majority here fails to explain the Lundy court’s reasoning. In that case, the casino’s nurse had 15 years of experience, but, as the court pointed out, the uncontradicted evidence was that she was not competent to perform an intubation. The court stated:
“It necessarily follows that the duty which the [plaintiffs] insist the New Jersey Supreme Court would recognize in this case would require casinos to provide a full-time on-site staff physician. Certainly, maintaining on a full-time basis the capability of performing an intubation goes far beyond any ‘first aid’ contemplated by § 314A.” Lundy, 34 F.3d at 1179.
In Lundy, discovery had been completed when the defendant casino filed its motion for summary judgment. Lundy, 34 F.3d at 1177. The Lundy court had before it the uncontroverted fact that a nurse with 15 years’ experience was not trained to perform an intubation. Here, the parties had not commenced discovery. Plaintiffs’ complaint alleged that defendant had on its staff a paramedic. Reading this allegation in the light most favorable to plaintiffs, we can infer that defendant had hired its employee to work for it as a paramedic. The key issue here is plaintiffs’ allegation that defendant had a duty to equip its paramedic with a defibrillator. Viewing plaintiffs’ complaint in the light most favorable to them, I believe that a reasonable jury could find that defendant had a duty to equip its paramedic with a defibrillator. It is conceivable that a reasonable jury would find significant the presence of a staff member who was employed as a paramedic, that a defibrillator is necessary equipment for such a professional, and that defendant should have equipped its paramedic with such a device. Indeed, the majority concedes that a jury could find that defendant did not provide reasonable first aid to Terry when it failed to use a defibrillator on him. However, it equates such a finding, without explanation, to a finding that defendant must provide all reasonably foreseeable medical care. In my mind, these findings are not identical.
For the reasons stated above, I would reverse the trial court’s dismissal of plaintiffs’ complaint.