Hardingham v. United Counseling Service of Bennington County, Inc., 94-096

Decision Date22 December 1995
Docket NumberNo. 94-096,94-096
Citation164 Vt. 478,672 A.2d 480
CourtVermont Supreme Court

On Appeal from Chittenden Superior Court, Matthew I. Katz, J.

John D. Shullenberger of Mickenberg, Dunn, Sirotkin & Dorsch, Burlington, for plaintiff-appellant.

Stephen G. Norton and John G. Beiswenger of Paul, Frank & Collins, Inc., Burlington, for defendants-appellees United Counseling Service, Halpin, O'Brien and Gordon.

Pietro J. Lynn of Dinse, Erdmann & Clapp, Burlington, for defendant-appellee Kowalski.

PRESENT: GIBSON, DOOLEY, MORSE and JOHNSON, JJ., and BURGESS, District Judge, Specially Assigned.

GIBSON, Justice.

Plaintiff David Hardingham, who was blinded as the result of drinking windshield wiper fluid during an alcoholic binge, appeals the superior court's orders granting summary judgment in favor of defendants, whom plaintiff accused of negligently assisting him while he was intoxicated. In an earlier opinion, Hardingham v. United Counseling Service of Bennington, 164 Vt. 158, 667 A.2d 289 (1995), we resolved all issues raised on appeal except for the issue of whether the superior court erred in ruling that, as a matter of law, defendants' conduct did not amount to gross negligence. We ordered the parties to reargue this issue, on which the original four-member panel was equally divided. Upon reargument, we reject plaintiff's argument that the superior court usurped the role of the jury by concluding, as a matter of law, that defendants were not grossly negligent in aiding him. Accordingly, the court's grant of summary judgment in favor of defendants is affirmed.


We restate the relevant facts set forth in our earlier opinion. In November 1987, defendant United Counseling Service (UCS), a private, nonprofit organization providing counseling and psychiatric treatment to persons with mental illness, mental retardation, or substance-abuse problems, employed plaintiff, a known recovering alcoholic, as an emergency services counselor. On February 3, 1988, defendant John Halpin, United Counseling Service's executive director, became aware that plaintiff was drinking again. After failing to persuade plaintiff to seek psychological and medical attention, Halpin asked defendant Larry Gordon, UCS's coordinator of emergency services, to visit plaintiff. Gordon went to plaintiff's apartment on February 4 and found him in an inebriated condition. When plaintiff refused to seek treatment, Gordon called plaintiff's estranged wife, the emergency room at Southwestern Vermont Medical Center (SVMC), the police, and the Bennington Rescue Squad, but nobody was willing to take any action without plaintiff's cooperation. Gordon left plaintiff's apartment and took all the alcohol he could find. During a telephone conversation the next day, plaintiff told defendant David O'Brien, UCS's director of outpatient services, that he would enter a treatment program.

On February 11, Halpin went to plaintiff's apartment and discovered plaintiff in an inebriated, semi-conscious state. Halpin returned to UCS and explained plaintiff's condition to Gordon, O'Brien, and defendant Donald Kowalski, a psychiatrist and UCS's medical director. The three men went to plaintiff's apartment and found it in disarray. While the men were at the apartment, plaintiff got up, went to a sink, and began to drink from an apparently full container of windshield wiper fluid. O'Brien and Kowalski immediately took the container away from plaintiff, and Gordon called the police. Notwithstanding plaintiff's vehement protests, the three men took him outside and helped police place him in the back of a patrol car. The police took plaintiff to the SVMC emergency room. Kowalski rode with plaintiff in the patrol car, but did not go into the hospital; instead, Gordon and O'Brien accompanied plaintiff to the emergency room.

At the emergency room, plaintiff refused to take a blood test despite Gordon's request that he do so. When plaintiff would not agree to go to a residential treatment program, Gordon signed an incapacitation order, and plaintiff was taken to the Rutland Regional Correctional Center. At no time did any of the three men inform police, emergency room personnel, or corrections employees that plaintiff had ingested, or had attempted to ingest, a bluish liquid that may have been windshield wiper fluid. The following morning, plaintiff was admitted to the Rutland Medical Center and placed in the intensive care unit. Tests revealed the presence of methyl alcohol in plaintiff's blood in sufficient concentration to present a threat to his life. As a result of the methanol overdose, plaintiff suffered severe health problems, including blindness.

In his complaint, plaintiff alleged that defendants were negligent in failing to inform medical authorities that he had ingested windshield wiper fluid. Defendants sought summary judgment. The superior court granted their motions based on its conclusion that, as a matter of law given the facts of the case, (1) Vermont's Duty to Aid the Endangered Act, 12 V.S.A. § 519, immunized defendants from civil liability for acts of ordinary negligence, and (2) defendants' actions were not grossly negligent. On reargument, plaintiff contends that the superior court usurped the role of the jury by concluding, as a matter of law, that defendants' actions did not constitute gross negligence.


The concept of gross negligence has been defined by this Court in the context of our repealed guest-passenger statute. Deyo v. Kinley, 152 Vt. 196, 207-08, 565 A.2d 1286, 1293 (1989). In that context, we stated that gross negligence is " 'more than an error of judgment, momentary inattention, or loss of presence of mind' "; rather, " 'it amounts to a failure to exercise even a slight degree of care' " and an " 'indifference to the duty owed [to another].' " Rivard v. Roy, 124 Vt. 32, 35, 196 A.2d 497, 500 (1963) (quoting Emery v. Small, 117 Vt. 138, 140, 86 A.2d 542, 543 (1952)); see Shaw, Adm'r v. Moore, 104 Vt. 529, 531, 162 A. 373, 374 (1932) ("Gross negligence is substantially and appreciably higher in magnitude and more culpable than ordinary negligence.... It is a heedless and palpable violation of legal duty respecting the rights of others.").

Although the presence or absence of gross negligence turns on each particular set of circumstances and therefore is "generally a question for the jury," the trial court may decide the question as a matter of law "where the minds of reasonable persons cannot differ." Rivard, 124 Vt. at 35, 196 A.2d at 500. Several courts in other jurisdictions have granted summary judgment to rescuers on the ground that, as a matter of law, the plaintiffs had failed to show that the rescuers were grossly negligent in providing assistance, as required by the jurisdictions' Good Samaritan statutes. See, e.g., Ambrose v. New Orleans Police Dep't Ambulance Serv., 639 So.2d 216, 223 (La.1994) (delay by emergency medical technicians in taking victim to hospital did not evidence gross negligence; therefore, jury verdict must be overturned); Tatum v. Gigliotti, 80 Md.App. 559, 565 A.2d 354, 358 (1989) (acts of paramedics may have amounted to negligence, but not gross negligence; directed verdict affirmed); Mallory v. City of Detroit, 181 Mich.App. 121, 449 N.W.2d 115, 118 (1989) (summary judgment affirmed for same reasons); Higgins v. Detroit Osteopathic Hosp. Corp., 154 Mich.App. 752, 398 N.W.2d 520, 524 (1986) (at most, plaintiff's evidence showed that defendant doctor was guilty of ordinary negligence in misreading plaintiff's x-rays and treating her according to misread x-rays; trial court did not err in granting defendant's motion for directed verdict on basis of Good Samaritan statute); McCain v. Batson, 233 Mont. 288, 760 P.2d 725, 732 (1988) (affirming summary judgment ruling on ground that plaintiff failed to show gross negligence on part of good samaritan doctor); Wicker v. City of Ord, 233 Neb. 705, 447 N.W.2d 628, 634-35 (1989) (ambulance attendants may have been negligent in failing to follow protocol for terminating cardiopulmonary resuscitation, but no reasonable person could have concluded that their actions were grossly negligent; trial court properly granted summary judgment to defendants); Rodriguez v. New York City Health & Hosps. Corp., 132 Misc.2d 705, 505 N.Y.S.2d 345, 347 (Sup.Ct.1986) (summary judgment granted because of plaintiff's failure to demonstrate, or even allege, gross negligence on part of physician who arranged for neighbor to take her to hospital); Youngblood v. Schireman, 53 Wash.App. 95, 765 P.2d 1312, 1320 (1988) (delay by parents of assailant in getting victim to emergency room was not gross negligence that could give rise to liability under Good Samaritan statute).

When the facts do not present triable issues, courts must be especially vigilant in protecting rescuers from protracted litigation, particularly in view of the fact that the Legislature created partial immunity under 12 V.S.A. § 519 largely to allay the litigation fears of medical professionals and other would-be rescuers. See Note, Duty to Aid the Endangered Act: The Impact and Potential of the Vermont Approach, 7 Vt.L.Rev. 143, 156 (1982). The purpose of the Duty to Aid the Endangered Act is to encourage rescuers to assist others in danger by penalizing them for not acting while at the same time shielding them from civil liability for acts of ordinary negligence committed during the rescue. If rescuers were forced to go through an expensive trial any time there was the slightest evidence of ordinary negligence, even if it were clear that gross negligence was not present, the purpose of the statute would be thwarted. Cf. McCain, 760 P.2d at 732 (defendant physician should not be forced "to go through a prolonged, expensive and emotionally debilitating trial for such well intended and medically accepted deeds"); Rodriguez, ...

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