81R3096 JSC-D
By: Gallego H.B. No. 808
A BILL TO BE ENTITLED
AN ACT
relating to the availability of automated external defibrillators
at certain athletic clubs; providing a civil penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 779.001, Health and Safety Code, is
amended to read as follows:
Sec. 779.001. DEFINITIONS [DEFINITION]. In this chapter:
(1) "Automated [, "automated] external defibrillator"
means a heart monitor and defibrillator that:
(A) [(1)] has received approval from the United
States Food and Drug Administration of its premarket notification
filed under 21 U.S.C. Section 360(k), as amended;
(B) [(2)] is capable of recognizing the presence
or absence of ventricular fibrillation or rapid ventricular
tachycardia and is capable of determining, without interpretation
of cardiac rhythm by an operator, whether defibrillation should be
performed; and
(C) [(3)] on determining that defibrillation
should be performed, automatically charges and requests delivery of
an electrical impulse to an individual's heart.
(2) "Athletic club" means an entity that:
(A) provides sports or exercise equipment,
facilities, or instruction to its customers or members or to the
guests of its customers or members; and
(B) provides sports or exercise equipment,
facilities, or instruction to or has enrolled at least 125
customers or members.
SECTION 2. Chapter 779, Health and Safety Code, is amended
by adding Section 779.009 to read as follows:
Sec. 779.009. ATHLETIC CLUBS; LIMITATION ON LIABILITY;
CIVIL PENALTY. (a) An athletic club shall make available at each
facility or location an automated external defibrillator.
(b) An athletic club shall make reasonable efforts to ensure
that at least one athletic club employee trained in the proper use
of an automated external defibrillator is present during staffed
business hours at each facility or location.
(c) An athletic club or other person is not liable for civil
damages arising from the use, attempt to use, or failure to use an
automated external defibrillator on the premises of an athletic
club unless the athletic club or person acts in a manner that is
wilful or wanton or constitutes gross negligence. The limitation
on liability provided by this subsection is not exclusive and a
person may raise any other defense to liability available under
law.
(d) An athletic club that violates Subsection (a) is subject
to a civil penalty that may not exceed $200 for the first violation.
An athletic club's failure to correct a violation under Subsection
(a) not later than 45 days after receiving notice of the first
violation constitutes a subsequent violation.
(e) Each subsequent violation of Subsection (a) is subject
to a civil penalty that may not exceed $500. Each day of a
subsequent violation constitutes a separate violation for purposes
of the penalty assessment.
(f) The attorney general or a district, county, or city
attorney may institute an action in district court to collect a
civil penalty from an athletic club that violates this section. The
party bringing the suit may recover reasonable expenses incurred in
obtaining the penalty, including investigation costs, reasonable
attorney's fees, witness fees, and deposition expenses.
(g) The court shall consider the following in determining
the amount of the penalty:
(1) the athletic club's history of any previous
violations under this section;
(2) the seriousness of the violation;
(3) any hazard posed to the public health and safety by
the violation; and
(4) demonstrations of good faith by the athletic club.
(h) Venue for a suit brought under this section is in the
municipality or county in which the violation occurred or in Travis
County.
(i) A civil penalty recovered in a suit instituted by a
local government under this section shall be paid to that local
government.
SECTION 3. Section 779.009(c), Health and Safety Code, as
added by this Act, applies only to a cause of action that accrues on
or after September 1, 2010. A cause of action that accrued before
September 1, 2010, is governed by the law in effect at the time the
cause of action accrued, and that law is continued in effect for
that purpose.
SECTION 4. This Act takes effect September 1, 2010.