Don’t Let the Legal Jargon Scare You: Business Owners in Tennessee Are Encouraged to Acquire and Use AEDs
Tennessee, like all other states, has a “Good Samaritan” law that protects people who, in good faith and without expectation of payment, give assistance to others in need . The whole purpose of an AED is that it is easy to use by a lay person without training, particularly since you never know who the victim or the responder will be in any given situation.
In fact, the theory behind Good Samaritan laws and the promulgation of AED use by the legislature and medical profession is that we are improved as a society if people are able to help each other in extreme circumstances without worrying about possible civil liability.
Nevertheless, the way the relevant statutes in TN are written reflect a glaring gap in coverage for situations where business owners allow third parties (or employees) to use the device without proper training. This notion is contrary to the whole purpose of an AED, but that is not to say that businesses will surely face liability under those circumstances. As with most things in life— and particularly under the law—it depends on the facts of the case.
Thus, the reality is that businesses in TN have two options:
- either acquire an AED, follow the simple requirements under the statute, and receive full immunity from civil liability; or,
- fail to acquire an AED, risk needing one, and possibly face liability for its absence.
It is important to note here, however, that having an AED in no way creates a legal obligation to use it . In the same way, in TN there is no legal obligation to acquire an AED, but businesses without one have faced potential causes of action for its absence.
So you should not let the legal jargon scare you or prevent you from acquiring an AED for your business. Instead, you should educate yourself first and make a decision based on all available information.
In this blog, we explain the TN legal requirements, limitations on liability, and what business owners need to know to protect themselves, their businesses, and their employees.
AED Purchase for Business: What do you need to do when you purchase an AED for your business?
When an entity acquires an AED, Tennessee law requires that you take the following additional steps in order to qualify for the full immunity granted by the statutes:
- Make sure the AED is maintained and tested according to the manufacturer’s operational guidelines;
- Register the existence and location of the AED with the primary provider of emergency services in your location within 30 days of acquisition;
- Ensure your “expected AED users” receive proper training in CPR and AED use;
- Have a supervising physician who is licensed to practice medicine in TN approve the placement of the AED and the program details (eg. registration, training, names of trained employees, report format, etc.); and
- Contact emergency services as soon as possible whenever the AED is used and provide a report to the supervising physician every time it is used.
If the entity that acquired the AED follows these guidelines, then it will receive the full protection of the TN Good Samaritan law and be immune from civil liability for personal injury or death due to any acts of negligence by a properly trained employee . The only thing the law will not protect from are acts of willful or wanton misconduct or gross negligence .
What happens if you allow your AED to be used by an untrained employee or a third party?
This is the gap in coverage mentioned above which makes the applicable TN statutes appear to fall short of society’s expectations. If your business allows an untrained employee or third party to use the AED, it will not have met all the requirements of the statute and thus not be able to avail itself from the limitations of liability. That does NOT mean, however, that your business will automatically be subject to liability if anything goes wrong when the AED is used. The reason for this is two-fold:
- First, TN’s Good Samaritan law and AED program (as codified in the statutes) does not expressly provide for a “private right of action” against an AED acquirer for its failure to comply with the statute’s training provisions. Without language expressly granting that right, courts will not interpret the statutes as allowing a private litigant to file suit against the AED acquirer.
- Second, being that there is no “private right of action” under the statute, the only possible claim that could be filed is one for common law negligence.
The elements a plaintiff must prove to succeed in such a claim are :
- a duty of care owed by the defendant to the plaintiff;
- conduct by the defendant falling below the standard of care amounting to a breach of that duty;
- an injury or loss;
- causation in fact; and
- proximate or legal cause.
The first of these elements, namely that the defendant owed a duty of care to the plaintiff, is where we focus our attention.
Business owners generally do not owe a duty of care to their patrons, let alone passerby’s. Duty, under these circumstances, is a legal obligation “to conform to a reasonable person standard of care in order to protect others against unreasonable risks of harm” . The core of negligence is the violation of this requirement by engaging in “behavior which should be recognized as involving unreasonable danger to others” . Thus, simply having an AED and using it when necessary, even if by an untrained person, will not automatically create such a duty of care. Moreover, unless the business’ actions are what created the unreasonable risk of harm to others, there can be no violation of the duty and therefore no cause of action for negligence.
On the other hand, with the ongoing proliferation of AEDs and increasing societal expectation of having AEDs available, it can be argued that not having an AED falls below the reasonable person standard of care. Again, as it stands now, TN does not require anyone (other than public high schools and dental offices) to have an AED on the premises, but other states have already taken that leap, and others will surely follow .
Eventually, there could be a duty upon restaurants, malls, recreation and fitness centers, and the like, to have an AED, but then it will be elements (4) and (5) above—causation—what will determine if a cause of action for negligence can survive.
For now, if you want to make sure your business and your employees are protected, you are better off purchasing an AED and following the requirements outlined above to make sure you are protected from civil liability under the statute.
Should you purchase an AED for business?
This is a question that only you can answer, and it will depend on your particular circumstances and those of your business. But before you decide, try to place yourself in the situation of either the victim or the responder. As the victim (or if the victim is someone you love), you would surely want to have an AED available because, without it, death from sudden cardiac arrest is almost guaranteed. As the responder, the impotence of being able to help someone in need and witnessing someone’s death can surely have an impact on you or your employees for life. While there is no guarantee that nothing will go wrong when an AED is used, the devices are so easy to use and so technologically advanced, that should anything go wrong, a true Good Samaritan will not be the one to blame.
Lastly, businesses that acquire an AED and follow the simple statutory requirements will receive immunity from civil liability, while those that do not acquire one may face civil actions for such failure now, and possibly be liable for such failure in the near future.
What is the best AED for businesses?
Check out this guide with everything you need to know about business AEDs.
This blog is for educational purposes only and is meant to give you a general understanding of the law, not to provide specific legal advice. This blog should not be used as a substitute for competent legal advice from a licensed attorney in your state.
This is a guest post written by Andrea Hoyos, an attorney licensed in New York, practicing since 2009.
 See Tenn. Code Ann. § 63-6-218
 Wallis v. Brainerd Baptist Church, 509 S.W.3d 886 (Tenn. 2016)
 See Tenn. Code Ann. § 68-140-406.
 “Willful or wanton misconduct” occurs when the act is intentional or committed under circumstances exhibiting a reckless disregard for the safety of others; “gross negligence” is a conscious and voluntary disregard of the need to use reasonable care.
 Naifeh v. Valley Forge Life Ins. Co., 204 S.W.3d 758, 771 (Tenn. 2006).
 Burroughs v. Magee, 118 S.W.3d 323, 328-29 (Tenn. 2003)
 Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 355 (Tenn. 2008)
 See: Verdugo v. Target Corp., 327 P.3d 774, 777-79 (Cal. 2014)