The Underlying Facts
Plaintiff Leo Dawkins, individually and as next friend of his wife, Dollett Smith Dawkins (“Dollett”), filed a lawsuit to recover for personal injury and spousal loss of consortium against Fitness International LLC, L.A. Fitness, and L.A. Fitness Oswego (collectively, “Fitness”). Plaintiff alleged that Dollett was rendered a disabled person with permanent and irreparable brain damage as a proximate result of Fitness’s willful and wanton misconduct in failing to use an AED on Dollett in a timely fashion after she suffered cardiac arrest while exercising at one of their facilities.
An AED can diagnose ventricular fibrillation and treat it through defibrillation by electrical therapy. While at the Fitness facility, Dollett was experiencing a ventricular fibrillation. It takes less than one minute to apply AED treatment. Uncorrected, the condition leads to cardiac arrest, which in turn can lead to anoxic brain injury due to the lack of an oxygenated blood supply.
The Fitness facility where Dollett’s injuries occurred was covered by the Facility Preparedness Act (210 ILCS 74/1 et seq. (West 2012)). Plaintiff alleged that, at all relevant times, the Facility Preparedness Act required Fitness to (1) have a functioning AED on site, (2) have staff properly trained in the assessment of patrons and the use of AEDs, (3) have properly trained staff who were required to know how to assess patrons who became unconscious for breathing and signs of pulse and circulation in preparation for employing an AED device, and (4) have a medical emergency plan for responding to medical emergencies.
Plaintiff further alleged that the Facility Preparedness Act also required Fitness staff members to (1) assess unconscious patrons for signs of breathing, pulse, and circulation pursuant to the training of the AED operators and Fitness’s medical emergency plan; (2) assess unconscious patrons for use of an AED; (3) attach the AED pads on an unconscious patron who had no breathing, no pulse, or no signs of circulation; and (4) follow the visual and voice prompts on the AED.
Section 45 of the Facility Preparedness Act provides as follows: “Liability. Nothing in this Act shall be construed to either limit or expand the exemptions from civil liability in connection with the purchase or use of an [AED] that are provided under the [AED] Act or under any other provision of law. A right of action does not exist in connection with the use or non-use of an [AED] at a facility governed by this Act, except for willful or wanton misconduct, provided that the person, unit of state or local government, or school district operating the facility has adopted a medical emergency plan as required under Section 10 of this Act, has an [AED] at the facility as required under Section 15 of this Act, and has maintained the [AED] in accordance with the rules adopted by the Department.” (emphasis added)
Section 30(d) of the AED Act, which is titled “exemption from civil liability,” provides in pertinent part: “An AED user is not liable for civil damages as a result of any act or omission involving the use of an [AED] in an emergency situation, except for willful or wanton misconduct, if the requirements of this Act are met.” (emphasis added)
The Illinois Supreme Court stated, “We agree with the appellate court that, by their plain terms, neither of these statutes immunizes a defendant from liability arising from the failure to use an AED on an injured person, provided that such failure was willful and wanton … In other words, a right of action does exist for willful and wanton misconduct in connection with the non-use of an AED.”
“Fitness relied upon the statutory language to argue it was immune from liability and had no duty. We have found that it does have a statutory duty, as described above, based on willful and wanton misconduct in the non-use of an AED. With respect to a section 2-619(a)(9) motion to dismiss, the question is whether plaintiff could prove any set of facts entitling him to recovery. Here, from the facts and circumstances alleged in the complaint, plaintiff could conceivably introduce evidence establishing that Fitness’s employees’ failure to provide AED treatment to Dollett in a timely manner after she collapsed rose to the level of willful and wanton misconduct that breached the duty that Fitness owed to Dollett, thereby proximately causing her injuries. We agree with the appellate court’s assessment that, “[a]t this early stage of the litigation, such a possibility cannot be ruled out as a matter of law. Taking the allegations in [plaintiff’s] complaint as true, the complaint may not be dismissed as a matter of law.”
Source Dawkins v. Fitness International, LLC, 2022 IL 127561.
If you or a loved one suffered serious injury (or worse) because an AED was not used, you should promptly seek the advice of a local medical malpractice lawyer in your U.S. state who may investigate your AED claim for you and represent you or your loved one in an AED case, if appropriate.
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