Can a Tennessee business be sued if its publicly displayed AED is used by an untrained employee or stranger?

Subject

Opinion No. 18-47, Automated External Defibrillators, November 21, 2018

Plain-English summary

Senator Bo Watson asked six questions about Tennessee's automated external defibrillator (AED) law. AEDs are the portable shock devices that show up in airports, gyms, schools, and offices, and they save lives in sudden cardiac arrest if used quickly. The AG walked through the statutory framework and worked out the liability picture for each scenario.

The setup. Tennessee's AED law (Tenn. Code Ann. §§ 68-140-401 et seq.) was enacted in 1998 and substantially expanded in 1999. An "AED acquirer" (a business or organization that owns and displays an AED) has to do four main things to qualify for the Act's strong limitation on liability under § 68-140-406: (1) establish a written program designating the "expected defibrillator users" authorized to operate the AED, (2) make sure those designated users complete CPR and AED training meeting Department of Health requirements, (3) maintain and test the device per the manufacturer's guidelines, and (4) coordinate with EMS personnel and meet recordkeeping/reporting requirements. The AG read "expected defibrillator users" to mean the persons designated by the acquirer to use the AED in an emergency, drawing on parallel state laws like Louisiana's.

Question 2 (training): Tennessee law does not flatly prohibit an untrained person from using an AED. The Good Samaritan Law (§ 63-6-218) was amended in 1998-99 to expressly cover AED use, so an untrained Good Samaritan who in good faith renders emergency care with an AED is generally not liable for civil damages absent gross negligence. The catch is that an AED acquirer that allows an untrained person to use its AED has not satisfied the AED Act's training prerequisite, and therefore loses the Act's stronger § 68-140-406 immunity (which covers ordinary negligence as well).

Question 3 (Good Samaritan): Yes, the Good Samaritan Law applies to the untrained user themselves. The user is protected against ordinary-negligence liability when rendering emergency care in good faith. Gross negligence is still a basis for liability.

Question 4 (untrained employee using employer's AED): Yes, the business could face liability. § 68-140-406's statutory immunity is unavailable because the training prerequisite was not met. The AED Act itself does not create a private right of action (no express statutory text creating one, and Tenn. Code Ann. § 1-3-119(a)-(b) generally bars implied private rights), so the suit would have to be a common-law negligence claim. Whether such a claim succeeds depends entirely on facts (was there a duty, was the AED defective, did training failures cause harm).

Question 5 (untrained stranger using business's AED): Possibly. Tennessee tort law generally does not impose an affirmative duty to protect others from third-person harm (Biscan v. Brown, 160 S.W.3d 462, 478-79 (Tenn. 2005)), but a "special relationship" can create one. The viability of any claim turns on whether the business had such a special relationship and whether the harm was foreseeable.

Question 6 (business that posts AED location info): Same answer. The act of providing location information could, on the right facts, be analyzed as facilitating use, but no automatic liability follows.

The takeaway is that the AED Act creates strong incentives for businesses to acquire AEDs and to invest in training, but the protections turn on actually doing the training. A business that maintains an unenrolled or "anyone-can-use-it" AED loses statutory immunity and falls back on whatever common-law defenses apply.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Tennessee adopted AED legislation in 1998 (1998 Tenn. Pub. Acts ch. 963), with the policy goal of making AEDs broadly available since survival from cardiac arrest drops 7-10% per minute without defibrillation. The 1998 Act required an AED acquirer to (1) ensure expected defibrillator users completed AHA-equivalent training, (2) maintain and test the device, and (3) require any user to activate EMS as soon as possible.

The 1999 amendments (1999 Tenn. Pub. Acts ch. 488, codified at Tenn. Code Ann. §§ 68-140-404 to -408) added more requirements and tied immunity from ordinary negligence to compliance:

• § 68-140-404: written plan, designated users, training, EMS coordination, recordkeeping.
• § 68-140-405: Department of Health rules establishing training requirements.
• § 68-140-406: limitation on civil liability when prerequisites are met (no liability for personal injury "unless willful or wanton misconduct or gross negligence").
• § 68-140-409: § 68-140-406 immunity applies only to emergency use; not where there is a duty to provide care, and not for AEDs prescribed for in-home patient use.

The Good Samaritan Law in Tenn. Code Ann. § 63-6-218 was separately amended (1998 Tenn. Pub. Acts ch. 963, § 5; 1999 Tenn. Pub. Acts ch. 488, § 2) to expressly include AED use within its protection. Good Samaritan immunity covers anyone (trained or untrained) who in good faith renders emergency care, with gross negligence being the only liability path.

The "no implied private right of action" rule comes from Tenn. Code Ann. § 1-3-119(a)-(b) (with narrow exceptions in § 1-3-119(c)). Hardy v. Tournament Players Club at Southwind, Inc., 513 S.W.3d 427, 433 (Tenn. 2017), defines a private right of action as the right of an individual to sue to remedy or prevent injury from another's violation of a legal requirement.

The duty-to-protect framework comes from Biscan, 160 S.W.3d at 478-79, and Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 355 (Tenn. 2008): no general duty to protect against third-person harm absent a special relationship, with foreseeability driving the analysis.

Common questions

What does it mean to be an "AED acquirer" under Tennessee law?

An AED acquirer is the business or organization that purchases and maintains the AED for public or workplace use. To qualify for the Act's strong liability protection, the acquirer has to set up a written AED program: designate authorized users, provide CPR/AED training to those users, maintain the device, coordinate with EMS, and meet reporting requirements.

If I, an untrained person, use an AED on a stranger having a heart attack, am I liable if something goes wrong?

The Good Samaritan Law in § 63-6-218 protects you. As long as you act in good faith and under the circumstances set out in that statute, you have no civil liability except for gross negligence. The opinion noted that the General Assembly amended the Good Samaritan Law in 1998 and 1999 to expressly cover use of an AED in rendering emergency care.

My company has an AED in the lobby. Are we protected if an untrained employee grabs it?

Probably not under § 68-140-406, because that protection requires meeting the training prerequisite. The employee themselves still has Good Samaritan protection. The business may still defend a negligence claim with common-law defenses (no duty, no causation, the AED was working properly). The opinion did not say liability is automatic, only that the statutory shield is gone.

Does the AED Act let an injured person sue the business for not having trained employees?

No. The Act doesn't create a private right of action, and Tennessee's general default in § 1-3-119 is against implying one from a regulatory statute. An injured person who wants to sue would need to plead common-law negligence (duty, breach, causation, harm), not a statutory violation.

What if a customer uses our AED themselves and something goes wrong?

That's a common-law premises-liability/duty analysis. The general rule is that businesses don't have a duty to protect customers from third-person harm. A special relationship (innkeeper-guest, business-invitee in the right context) can create one, and foreseeability matters. The opinion did not commit to a specific answer; it depends on facts.

Where does the liability exposure actually come from?

The opinion located it in not meeting the Act's requirements, not in owning an AED. The 1998 Act's stated goal was to encourage acquisition of AEDs, and § 68-140-406 gives an acquirer that establishes a written program, designates and trains users, maintains the device, and coordinates with EMS immunity from ordinary-negligence claims. An acquirer that lets untrained people use its AED has not met those prerequisites and loses that statutory immunity. The opinion did not advise removing AEDs.

Does this opinion bind the courts?

No. AG opinions in Tennessee are persuasive authority. The conclusions here track the plain text of the statutes and standard Tennessee tort law, so a court would likely reach similar conclusions, but the opinion itself is not binding precedent.

Citations

Statutes

• Tenn. Code Ann. § 1-3-119 (private right of action general rule)
• Tenn. Code Ann. § 63-6-218 (Good Samaritan Law; AED expressly covered)
• Tenn. Code Ann. §§ 68-140-401 to 68-140-409 (AED Act)
• Tenn. Code Ann. § 68-140-404 (written program; designated users; training)
• Tenn. Code Ann. § 68-140-405 (Department of Health training rules)
• Tenn. Code Ann. § 68-140-406 (limitation on liability when prerequisites met)
• Tenn. Code Ann. § 68-140-408 (training prerequisites)
• Tenn. Code Ann. § 68-140-409 (immunity scope, emergency use only)

Cases

• Hardy v. Tournament Players Club at Southwind, Inc., 513 S.W.3d 427 (Tenn. 2017)
• Biscan v. Brown, 160 S.W.3d 462 (Tenn. 2005)
• Satterfield v. Breeding Insulation Co., 266 S.W.3d 347 (Tenn. 2008)
• Restatement (Second) of Torts § 315 (1965) (relied on for special-relationship duty)

Other authorities

• 1998 Tenn. Pub. Acts ch. 963
• 1999 Tenn. Pub. Acts ch. 488
• Karen F. Petersen, 17 J. Contemp. Health L. & Pol'y 275, 320 (2000)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2018/op18-47.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
November 21, 2018

Opinion No. 18-47

Automated External Defibrillators

Question 1

What is the meaning of the term "expected defibrillator users" in Title 68, Chapter 140, Part 4 of the Tennessee Code?

Opinion 1

For purposes of Title 68, Chapter 140, Part 4 of the Tennessee Code, "expected defibrillator users" are those persons that an acquirer of an automated external defibrillator designates to give emergency care.

Question 2

Does Tennessee law require that a person have automated external defibrillator training before using one?

Opinion 2

Tennessee law does not prohibit an untrained person from using an automated external defibrillator; however, an acquirer of an automated external defibrillator that allows an untrained person to use its defibrillator may not avail itself of the limitation on liability afforded under Tenn. Code Ann. § 68-140-406.

Question 3

Does the "Good Samaritan Law" apply to an untrained person who uses an automated external defibrillator?

Opinion 3

Yes. The "Good Samaritan Law," codified at Tenn. Code Ann. § 63-6-218, applies to an untrained person who uses an automated external defibrillator under the circumstances set forth in that statute.

Question 4

Could a business be held liable if it allows an untrained employee to use an automated external defibrillator that is publicly displayed by the business?

Opinion 4

Yes. The merits of any such action would depend on all the facts and circumstances of the particular case.

Question 5

Could a business be held liable if an untrained third person, i.e., a person not employed by the business, uses an automated external defibrillator that is publicly displayed by the business?

Opinion 5

It is possible that the business could be held liable, but the viability of any such claim will depend on all the facts and circumstances of any given case.

Question 6

Could a business be held liable if it provides information as to the location of an automated external defibrillator on its premises, thereby facilitating the use of its automated external defibrillator by untrained third persons?

Opinion 6

It is possible that the business could be held liable, but the viability of any such claim will depend on all the facts and circumstances of any given case.

ANALYSIS

An automated external defibrillator (AED) is a lightweight, portable device that delivers an electric shock through the chest to the heart. An AED is an important tool to address sudden cardiac arrest. The AED's shock can stop an irregular heartbeat and restore a normal heart rhythm. Defibrillation must occur quickly, though. A victim's chance of survival decreases by seven to ten percent for every minute that a normal heart beat is not restored.

Because early defibrillation is such an important determinant for victims of cardiac arrest, the American Heart Association began a national public health initiative in the mid-1990s to educate the public and lawmakers about the need to promote cardiopulmonary resuscitation (CPR) and the early use of AEDs by trained lay responders. Between 1995 and 2000, all fifty States passed laws and regulations concerning lay rescuer AED programs.

Tennessee's AED Law and "Expected Defibrillator Users"

Tennessee's initial AED legislation was passed in 1998 with the general goal of encouraging the acquisition of AEDs so that they would be readily available to the public. 1998 Tenn. Pub. Acts ch. 963 (Preamble). The fledgling legislation placed only three requirements on an entity that acquired an AED: "expected defibrillator users" must take a course in defibrillator use and CPR from the American Heart Association or a nationally-recognized-equivalent course; the defibrillator must be maintained and tested in accordance with the manufacturer's guidelines; and any person using the AED must activate the emergency medical services system as soon as possible. Id. at § 4(1).

The General Assembly did not define the term "expected defibrillator users" in the 1998 Act or in later legislation. Based on the context, however, it appears that the General Assembly intended the term to refer to persons designated by the acquirer of an AED to use the AED to render emergency care. See La. Rev. Stat. Ann. § 40:1137.3(b) (defining "expected defibrillator user" to mean "any person designated by the possessor [of the AED] to render emergency care").

Limitations on Liability for AED Use Under the Good Samaritan Law and the AED Act

Legislators debated, but did not adopt as part of the 1998 AED legislation, a provision limiting the legal liability of "AED acquirers" who complied with the Act's three requirements. The General Assembly, though, did amend Tennessee's "Good Samaritan Law" to apply to the use of an AED.

The Good Samaritan Law generally provides that a person who, in good faith and under certain specified circumstances, "renders emergency care" or assists in "rendering emergency care" shall not be liable for civil damages resulting from any act or omission by that person, except for damages resulting from that person's gross negligence. See Tenn. Code Ann. § 63-6-218. In 1998 and 1999, the General Assembly amended the Good Samaritan Law to expressly include within its protections the "use of an automated external defibrillator" in rendering emergency care. 1998 Tenn. Pub. Acts ch. 963, § 5; 1999 Tenn. Pub. Acts ch. 488, § 2.

In 1999, the General Assembly amended the AED Act to specify more requirements for AED acquirers and to afford immunity from certain negligence claims to AED acquirers who meet all the requirements. See 1999 Tenn. Pub. Acts ch. 488, §§ 3 to 7 (codified at Tenn. Code Ann. §§ 68-140-404 to -408). The AED acquirer must now satisfy statutory prerequisites relating to training of "expected defibrillator users," maintenance and testing of AEDs, coordination with emergency medical service personnel, reporting requirements, record keeping, and general AED program development. Tenn. Code Ann. § 68-140-404. Specifically, "to use or allow the use" of its AED, an AED acquirer must establish a written plan that designates, among other things, the individuals who are authorized to operate the AED, Tenn. Code Ann. § 68-140-404(1)(B), and the designated individuals must comply with the CPR and AED training requirements established by the Department of Health, Tenn. Code Ann. §§ 68-140-404(3), -405(4), -408.

If these statutory prerequisites are met by the AED acquirer and followed by the individuals using the AED, the AED acquirer is not subject to civil liability for personal injury that results from an act or omission that does not amount to willful or wanton misconduct or gross negligence. See Tenn. Code Ann. § 68-140-406. However, since training requirements must be established and since expected AED users must comply with those training requirements, an AED acquirer who allows an untrained person to use its AED, will not have met the prerequisites, and, therefore, will not be protected by the limitation on liability afforded under Tenn. Code Ann. § 68-140-406.

But, even when an AED acquirer is not protected by the § 68-140-406 limitation on liability, it may nevertheless still not be amenable to suit under the statute. That is because the statute 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. And unless a statute contains "express language creating or conferring" a private right of action, no private right of action exists, and courts will generally not construe a statute to impliedly create a private right of action. Tenn. Code Ann. § 1-3-119(a) and (b). Thus, since Tenn. Code Ann. § 68-140-406 does not expressly create a private right of action, a potential private litigant is unlikely to have a cause action under the Act against an AED acquirer, even if the acquirer is not immune under the statute.

Liability of AED Acquirer Arising from Use of AED by Untrained Employee Under Common Law

Although there is no private right of action available under the statute, an AED acquirer could be subject to a common law negligence action for the use of its AED by an untrained employee. Whether such a common law tort action could be maintained in any given case will depend on the particular facts and circumstances of that case. The AED acquirer who faces such a claim would be entitled to assert any defenses, as may be warranted by the particular facts and circumstances, that are legally cognizable in such tort actions.

Liability of AED Acquirer for Use of AED by Untrained Third Persons Under Common Law

The remaining two questions concern the potential liability of a business if an untrained third person uses its AED. The business could be held liable if it is determined to have a duty to protect its patrons or employees from harm caused by a third person using its AED. Whether such a duty exists in any given case will depend on the particular facts and circumstances involved. In general, one does not have an affirmative duty to protect others from the harm of third persons. Biscan v. Brown, 160 S.W.3d 462, 478-79 (Tenn. 2005). See Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 355 (Tenn. 2008). But those who stand in a special relationship to others do have a duty to protect those persons from foreseeable risks. Giggers, 277 S.W.3d at 364-365 (Tenn. 2009); Downs, 263 S.W.3d at 819; Restatement (Second) of Torts § 315 (1965). "'[F]oreseeability is the test of negligence.'" Giggers, 277 S.W.3d at 365 (quoting Downs, 263 S.W.3d at 820). Thus, when a risk of injury is not generally foreseeable, no duty arises. Id.; Satterfield, 266 S.W.3d at 366.

[3] The term appears to be drawn from model state legislation proposed by the American Heart Association. See generally Karen F. Petersen, 17 J. Contemp. Health L. & Pol'y 275, 320 (2000). Several States use the term in their laws governing the use of AEDs. See, e.g., Ala. Code § 6-5-332.3; Ariz. Rev. Stat. § 36-2261; Colo. Rev. Stat. Ann. § 13-21-108.1; Ga. Code Ann. § 31-11-53.2; Idaho Code § 5-337; Ky. Rev. Stat. Ann. § 311.667; La. Rev. Stat. Ann. § 40:1137.3; Mo. Ann. Stat. § 190.092; Ohio Rev. Code Ann. § 3701.85; 42 Pa. Cons. Stat. Ann. § 8331.2; Wash. Rev. Code Ann. § 70.54.310.

[4] The immunity afforded under this section applies only "to situations involving emergency use of an AED and in no case shall it apply where there is a duty to provide care. Nor shall it apply where a doctor has prescribed use of an AED for a patient's use in the patient's private home." See Tenn. Code Ann. § 68-140-409.

[5] A private right of action is "the right of an individual to bring suit to remedy or prevent an injury that results from another party's actual or threatened violation of a legal requirement." Hardy v. Tournament Players Club at Southwind, Inc., 513 S.W.3d 427, 433 (Tenn. 2017).

[6] Tenn. Code Ann. § 1-3-119(c) contains exceptions to this general rule.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

LAURA T. KIDWELL
Senior Assistant Attorney General

Requested by:
The Honorable Bo Watson
State Senator
425 5th Avenue North
Suite 706
Nashville, Tennessee 37243