By Daniel Wiessner
ALBANY, N.Y., Feb 7 (Reuters) - Health clubs in New York do
not have a legal obligation to use defibrillators on members
experiencing heart problems, the Court of Appeals ruled
In a 4-1 decision, the court denied a motion by gym operator
Bally to dismiss a lawsuit filed by the family of Gregory
Miglino, who suffered a fatal heart attack at a Long Island gym
The court, however, found that a state law requiring gyms to
keep automated external defibrillators onsite and train
employees in their use did not create a special duty on the part
of gyms to actually use the devices.
"Such a duty would engender a whole new field of tort
litigation, saddling health clubs with new costs and generating
uncertainty," Judge Robert Smith wrote for the court.
Scott Charnas, who is representing Miglino's son in the
suit, said on Thursday that most people who belong to gyms
probably assume employees are obligated to use AEDs when
"I think they have a false sense of security, and what the
court said today is that (gym employees) can watch you die," he
Brian Heermance, who represented Bally, said that he was
confident the company would prevail at trial.
The underlying case was filed in Suffolk County in 2008 on
behalf of Miglino, who collapsed after a game of racquetball at
a Bally club in Lake Grove.
At the time, according to the court, another club member
alerted the front desk, which immediately placed a call to 911.
A Bally employee trained in AED use came to Miglino's aid but
did not use the device because Miglino was breathing and had a
pulse, the court said.
An ambulance arrived and took Miglino to a nearby hospital,
where he was pronounced dead.
Miglino's son sued Bally in 2010, claiming the club was
negligent for failing to use the defibrillator.
Bally moved to dismiss the case, arguing that the
defibrillator requirement under the state General Business Law
did not obligate gyms to use AEDs on members.
Acting State Supreme Court Justice Jeffrey Arlen Spinner in
2010 denied the motion. The Appellate Division, Second
Department, in 2011 affirmed. The court found that the
defibrillator law contained an inherent obligation for employees
to use the devices in emergencies.
The ruling contrasted with a 2010 decision by the First
Department, in which the court found no private right of action
under the defibrillator law.
The Court of Appeals on Thursday adopted the First
Department's view but denied Bally's motion to dismiss, finding
that issues of fact existed in Miglino's case that could sustain
common law negligence claims.
Smith was joined by Judges Victoria Graffeo, Susan Read and
Dissenting in part, Chief Judge Jonathan Lippman said that
the majority had rendered the law requiring gyms to purchase and
maintain AEDs "virtually meaningless."
"It should go without saying that the presence of an AED
will be of no benefit whatsoever to a person in cardiac arrest
unless, of course, it is actually used," Lippman wrote.
The case is Gregory Miglino Jr v. Bally Total Fitness of
Greater New York, New York State Court of Appeals, No. 10.
For Miglino: Scott Charnas and John Decolator.
For Bally: Brian Heermance of Morrison Mahoney.
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