The Lawletter Vol 42 No 10
Lee Dunham, Senior Attorney, National Legal Research Group
During the holiday season, many of us open our homes to friends and coworkers and, unfortunately, sometimes a guest is injured or becomes sick on the property. What is the scope of a host's duty to render first aid to the uncle who cuts his hand while carving the turkey, or the New Year's Eve guest who has far too much to drink?
Courts of most states generally follow the scheme outlined in the Restatement (Second) of Torts as to duty to render aid. The general rule, of course, is that there is no duty to render aid to one who is in peril, even if it would be easy to provide assistance. See Restatement § 314 ("The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action."). But an exception applies when a "special relationship" exists between the parties.
Under the Restatement, the "possessor" or "occupier" of land is deemed to have such a "special relationship" with certain kinds of entrants onto his or her property. The primary definition of a "possessor of land" is "a person who is in occupation of the land with intent to control it." Id. § 328E (a). Thus, a "possessor" need not be the landowner; tenants may be "possessors." See Publix Super Mkts., Inc. v. Jeffery, 650 So. 2d 122, 125 (Fla. Dist. Ct. App. 1995); Pruitt v. Savage, 128 Wash. App. 327, 115 P.3d 1000, 1002 (2005).
The Restatement provides that a relationship between a possessor of land who holds it open to the public and members of the public who enter in response to his invitation gives rise to a duty to provide first aid after the possessor of land knows or has reason to know that guests are ill or injured and to care for them until they can be cared for by others. Restatement § 314A. A caveat to section 314A states that "[t]he Institute expresses no opinion as to whether there may not be other relations which impose a similar duty." Id.
The scope of the duty is quite limited:
The defendant is not required to take any action until he knows or has reason to know that the plaintiff is endangered, or is ill or injured. He is not required to take any action beyond that which is reasonable under the circumstances. In the case of an ill or injured person, he will seldom be required to do more than give such first aid as he reasonably can, and take reasonable steps to turn the sick man over to a physician, or to those who will look after him and see that medical assistance is obtained. He is not required to give any aid to one who is in the hands of apparently competent persons who have taken charge of him, or whose friends are present and apparently in a position to give him all necessary assistance.
Id. § 314A cmt. f.
Generally, "[f]irst aid requires no more assistance than that which can be provided by an untrained person." L.A. Fitness Int'l, LLC v. Mayer, 980 So. 2d 550, 558 (Fla. Dist. Ct. App. 2008) (quoting Pacello v. Wyndam Int'l, No. CV030477014S, 2006 WL 1102737, at *6 (Conn. Super. Ct. Apr. 7, 2006)). The duty to provide first aid "does not encompass the duty to perform skilled treatments, such as CPR, use of an oxygen tank or AED, use of a defibrillator, or performance of the Heimlich maneuver. See, e.g., Sells v. CSX Transp., Inc., 170 So. 3d 27, 38 (Fla. Dist. Ct. App. 2015), review granted sub nom. Crystal Sells v. CSX Transp., Inc. (Fla. Feb. 19, 2016), and review dismissed as improvidently granted sub nom. Sells v. CSX Transp., Inc., 214 So. 3d 1232 (Fla. 2017) (CPR not required); Abramson v. Ritz Carlton Hotel Co., 480 F. App'x 158, 161 (3d Cir. 2012) (oxygen tank or AED not required); Salte v. YMCA of Metro. Chi. Found., 351 Ill. App. 3d 524, 814 N.E.2d 610, 615 (2004) (defibrillator not required); Lee v. GNLV Corp., 117 Nev. 291, 22 P.3d 209, 213-14 (2001) (Heimlich maneuver not required). Rather, "common first aid treatments include, but are not limited to, calling for help, positioning a victim, ensuring that a seizure victim has an open airway, controlling a victim's bleeding by applying pressure, applying cold packs to soft-tissue injuries, warming a victim of hypothermia, and removing a drowning victim from the water." Sells, 170 So. 3d at 38.
Although the language of section 314A(3) limits the application of the section to possessors who have held their property "open to the public," which may exclude the typical party host, many courts have held that the duties enumerated under section 314A apply to social guests. See Peter F. Lake, Recognizing the Importance of Remoteness to the Duty to Rescue, 46 DePaul L. Rev. 315, 338-39 & nn.176-179 (1997) (and cases cited therein). Such "expansion" of the rule is generally premised upon the aforementioned "caveat" to section 314A and its comments. See Restatement § 314A cmt. 1. This expansion may be particularly persuasive in states which have "collapsed" the historic distinction between "invitees" and "licensees" in order to impose duties on landowners with respect to social guests as well as business guests. See, e.g., Wood v. Camp, 284 So. 2d 691, 695 (Fla. 1973) (eliminating distinction between "commercial [business or public] visitors and social guests upon the premises, applying to both the single standard of reasonable care under the circumstances"); Lindsey v. Miami Dev. Corp., 689 S.W.2d 856, 859 (Tenn. 1985).
