Hardingham v. United Counseling Service of Bennington County, Inc.

Annotate this Case

HARDINGHAM_V_UNITED_COUNSELING_SERV.94-096; 164 Vt 478; 672 A.2d 480

[Filed 22-Dec-1995]

NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

No. 94-096

David N. Hardingham Supreme Court

On Appeal from
v. Chittenden Superior Court

United Counseling Service October Term, 1995
of Bennington County, Inc., et al.

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, D.J.,
Specially Assigned

GIBSON, J. 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 Serv.
of Bennington, No. 94-096 (Vt. Sept. 1, 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) defendant's 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.

II.

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, 565 A.2d 354, 358
(Md. Ct. Spec. App. 1989) (acts of paramedics may have amounted to
negligence, but not gross negligence; directed verdict affirmed); Mallory
v. City of Detroit, 449 N.W.2d 115, 118 (Mich. Ct. App. 1989) (summary
judgment affirmed for same reasons); Higgins v. Detroit Osteopathic Hosp.
Corp., 398 N.W.2d 520, 524 (Mich. Ct. App. 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, 760 P.2d 725, 732
(Mont. 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, 447 N.W.2d 628, 634-35 (Neb. 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., 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, 765 P.2d 1312, 1320 (Wash. Ct. App.
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 prolonged, expensive and emotionally debilitating trial for well
intended and medically accepted deeds"); Rodriguez, 505 N.Y.S.2d at 347-48
(physician who does little more than arrange for neighbor to be taken to
hospital under emergency conditions should not remain in lawsuit).

Here, plaintiff neither demonstrated nor pled gross negligence against
defendants. It is undisputed that the individual defendants visited
plaintiff at his apartment, became alarmed at his condition, summoned the
authorities, took the container of windshield wiper fluid away from him as
he attempted to drink from it, physically removed him from his apartment so
that he could be transported to the hospital, accompanied him to the
hospital, and tried to get him to accept appropriate medical treatment. As
the trial court noted, defendants' actions probably saved plaintiff's life.
Given these facts, no reasonable person could conclude that defendants
showed indifference to plaintiff or failed to exercise even a slight degree
of care. We agree with the trial court that defendants' failure to tell
medical personnel, during the course of an emergency room

visit with a highly intoxicated and belligerent person, that plaintiff may
have consumed a toxic substance demonstrates, at most, an error of judgment
or a loss of presence of mind that could be viewed as negligent, but not
grossly negligent. Accordingly, defendants cannot be liable in civil
damages, and summary judgment in favor of defendants was proper. See Kelly
v. Town of Barnard, 155 Vt. 296, 305 n.5, 583 A.2d 614, 619 n.5 (1990)
(where record as whole could not lead rational trier of fact to find for
nonmoving party, there is no genuine issue for trial).

The dissent emphasizes that the particular facts of each case should
determine whether gross negligence exists. We agree, but conclude that the
particular facts of this case are such that a jury could not reasonably
determine that defendants were grossly negligent in aiding plaintiff. We
reject the notion that because there is no clear dividing line between
ordinary negligence and the statutory standard of gross negligence, the
jury must determine the existence of gross negligence in all cases,
regardless of the facts.

Affirmed.

FOR THE COURT:

________________________________________
Associate Justice

--------------------------------------------------------------------------
Dissenting

NOTICE: This opinion is subject to motions for reargument under V.R.A.P.
40 as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press.

No. 94-096

David N. Hardingham Supreme Court

On Appeal from
v. Chittenden Superior Court

United Counseling Service November Term, 1994
of Bennington County, Inc. et al.

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, D.J.,
specially assigned

DOOLEY, J., dissenting. I disagree with the court's conclusion that
there was insufficient evidence for a jury to find that defendants were
grossly negligent. Accordingly, I dissent.

The narrow question that divides us is as follows:

Whether the medical director of a crisis intervention and alcohol
treatment agency, who observes an intoxicated person drink
windshield wiper fluid, can be found grossly negligent when he
obtains medical assistance for the intoxicated person but fails to
inform the medical care provider that the intoxicated person drank
windshield wiper fluid.

The question is replicated for the other defendants, each of whom has a
position of responsibility in the crisis intervention and alcohol treatment
agency.

We have said that "decided cases are of little assistance in
determining the existence of gross negligence under the evidence in a
particular case. Each case turns almost entirely on its

own peculiar factual situation." Langdon-Davies v. Stalbird, 122 Vt. 56,
57, 163 A.2d 873, 874-75 (1960). The facts here are particularly telling.
Defendants obtained emergency medical assistance and accompanied plaintiff
to the emergency room, but failed to tell the emergency room physician the
most significant fact that wasn't obvious from plaintiff's condition --
that plaintiff had consumed windshield wiper fluid. The result was that
plaintiff was diagnosed at the emergency room with "depression and acute
intoxication" for which the obvious treatment was "detoxification." The
emergency room doctor's report is significant in this respect:

Attempt was made to obtain blood this evening, but the patient
refused this to be done. There being no evidence of acute
emergency, I did not force this issue.

There was no evidence of "acute emergency" because defendants failed to
tell the emergency room doctor what plaintiff had ingested. Because no
blood work was done, the hospital did not diagnose a methanol overdose.
Without treatment for the ingestion of methanol, plaintiff lost his sight.

I have no doubt that the greatest difficulty plaintiff faces in this
case is to persuade us to accept that "good samaritans" should ever be
liable. Thus, this Court's response to plaintiff's claim appears to be
that the deficiencies in defendants' response must be viewed in the context
of all the positive and effective actions they took to save plaintiff. The
trial court emphasized that defendants' actions "very probably saved
[plaintiff's] life." Both approach the case as if we are to do some sort
of balancing, weighing the positive interventions, against those that
proved to be harmful.

The Duty to Aid the Endangered Act clearly commands a different
approach. It recognizes that, despite their best intentions, rescuers can
be negligent and harm can result from that negligence, but limits liability
to actions that are grossly negligent. If we consider defendants' positive
acts of assistance as bearing on whether they were grossly negligent,
however, there will never be liability in any emergency medical care
situation. The Legislature has not adopted this "immunity" approach.

I do not believe that the general language we have used to describe
gross negligence is very helpful when viewed apart from the decisions that
have applied the language. Thus, the majority fixes on our description of
gross negligence as involving absence of "even a slight degree of care."
We have, however, applied that language to allow a jury to find gross
negligence where a motorist, traveling 10 miles per hour under the speed
limit, lost control of her vehicle when she abruptly applied her brakes
after hearing the sound of small stones hitting her fender.
Langdon-Davies, 122 Vt. at 57, 58, 163 A.2d at 874, 875. We also applied
it to a motorist who, while driving 40 to 45 miles per hour on a highway,
failed to negotiate a curve and left the road. Abel v. Salebra, 115 Vt.
336, 337-38, 341, 61 A.2d 605, 606, 608 (1948). Our decisions make clear
that we have not adopted a wooden and narrow application of the definition
of gross negligence.

As a demonstration that decided cases are generally unhelpful to
determining whether there is sufficient evidence to get to the jury on
gross negligence, I invite the reader to examine the decisions from outside
Vermont cited by the majority.(FN1) Two of these decisions turn on the fact
that the injured party made no real claim of gross negligence. See
Rodriguez v. New York City Health & Hosp. Corp., 505 N.Y.2d 345, 347 (Sup.
Ct. 1986) ("not only do [plaintiff's papers] never set forth any
allegations of specific facts of negligence, but . . . the complaint never
even mentions allegations of gross negligence . . . . [The opposition has]
failed to come forward with any evidentiary facts showing malpractice by
[defendant]."); Mallory v. City of Detroit, 449 N.W.2d 115, 118 (Mich. Ct.
App. 1989) (complaint contains only general allegations of negligence
insufficient to be claims of gross negligence). In this case, after the
initial pleading, plaintiff made it clear in response to defendant's motion
for summary judgment that he claimed defendants were grossly negligent, and
he detailed that claim. The trial court analyzed the claim of gross
negligence, and no party has argued that it is not properly before

us. Rodriguez and Mallory are simply inapplicable.

Tatum v. Gigliotti, 565 A.2d 354, 358 (Md. Ct. Spec. App. 1989) might
be more helpful to defendants. In that case, however, there was a trial
(not a decision on summary judgment) followed by a directed verdict because
plaintiff relied upon an expert witness who failed to state that defendant
was grossly negligent. More important, Maryland law equates gross
negligence with wilful and wanton misconduct, see id., so the degree of
defendant's culpability must be much higher in Maryland than in Vermont.
See Sorrell v. White, 103 Vt. 277, 282-85, 153 A. 359, 361-63 (1931)
(distinguishing gross negligence and wilful negligence).

Although on initial reading, Ambrose v. New Orleans Police Dept.
Ambulance Serv., 639 So. 2d 216, 223 (La. 1994), McCain v. Batson, 760 P.2d 725, 732 (Mont. 1988), Wicker v. City of Ord, 447 N.W.2d 628, 634-35 (Neb.
1989), and Youngblood v. Schireman, 765 P.2d 1312, 1320 (Wash. Ct. App.
1988) appear helpful to plaintiff, but it is hard to see how there is any
negligent conduct at all in their facts. Indeed, the Court said as much in
McCain, 760 P.2d at 732 (defendant's actions were "well intended and
medically accepted deeds"). In comparison, the degree of culpability that
the jury could find here is much greater.

In my view, more relevant and helpful precedents are Fox v. Oklahoma
Memorial Hosp., 774 P.2d 459, 462 (Okla. 1989); Bloom v. Dubois Regional
Medical Ctr., 597 A.2d 671, 679-80 (Pa. Super. Ct. 1991); Wheeler v.
Yettie Kersting Memorial Hosp., 866 S.W.2d 32, 50-51 (Tex. Ct. App. 1993),
cases where the appellate court held that the issue of gross or willful or
wanton negligence had to go to the jury. I reemphasize, however, that this
case should not be decided based on decisions from other states that the
reader thinks involve similar facts. Juries, not appellate courts, should
decide whether defendants' inaction was so culpable that it amounted to
actionable gross negligence.

As strongly as I disagree with the majority's analysis of the facts in
light of the standard for summary judgment, my real differences are in the
policy perspectives from which we approach this case. The majority
approaches the Duty to Aid the Endangered Act as an

immunity statute so we "must be especially vigilant in protecting rescuers
from protracted litigation." I disagree with this analysis and approach.
The main effect of the statute, unlike other Good Samaritan statutes
adopted in this country, was to expand the limited common-law duty to
rescue a person "exposed to grave physical harm" when the rescue can be
achieved without danger or peril to the rescuer and without interference
with important duties owed to others. See 12 V.S.A. § 519(a); see
generally M. Franklin, Vermont Requires Rescue: A Comment, 25 Stan. L. Rev.
51 (1972). This expanded duty was accompanied by a higher threshold of
culpability before the rescuer could be found liable, but I think it is a
mischaracterization to call this an immunity statute.

On this point, it is important to distinguish the Good Samaritan
statutes that have been passed in other states. Many, modeled after the
California statute, give the "good samaritan" immunity from any suit as
long as the rescue action was taken in good faith. See Cal. Bus. & Prof.
Code § 2395 (West 1990). Others allow suits against the rescuer only if
based on willful or wanton misconduct, which typically requires actual or
implied intent to injure. See Ohio Rev. Code Ann. § 2305.23 (Anderson
1995). If the Vermont Legislature had passed one of these variations, the
majority's decision here would have been fully supported, and I would agree
with its policy rationale. The majority, however, reads too much into the
statute that the Legislature actually passed.

Unfortunately, this is a lesson we once learned the hard way, and I
fear history is repeating itself. In 1929, the Vermont Legislature,
following the lead in other states, passed a statute providing that a
guest-passenger who is injured in an automobile accident could sue the
operator only for gross or willful negligence. Sorrell, 103 Vt. at 280,
153 A. at 360. In the forty years the statute was in effect until repealed
in 1969, it spawned a flood of appeals to this Court, and decision after
decision attempted to find the line between gross and ordinary negligence.
In retrospect and in light of that experience, we found the terminology of
the guest statute to be "ineffective as a definition of duty," Green v.
Sherburne Corp., 137 Vt. 310, 313,

403 A.2d 278, 280 (1979), and we characterized our experience with the
gross negligence test for liability as "unsatisfactory." Howard v.
Spafford, 132 Vt. 434, 435, 321 A.2d 74, 75 (1974). In these assessments,
we were echoing those of many courts and commentators who found the
line-drawing required by the gross negligence standard difficult, if not
impossible to perform in a principled fashion. See Note, The Present
Status of Automobile Guest Statutes, 59 Cornell L. Rev. 659, 670 (1974)
(because of terminology, application of guest laws has been characterized
by "uncertainty and lack of uniformity" so that "the field has been thrown
into a state of mass confusion"); W. Page Keeton, Prosser & Keeton on Torts
§ 34, at 216 (5th ed. 1984) (guest statutes filled courts with "knotty
little problems" such as the meaning of gross negligence).

Like many other courts, we found that the only reasonable course of
action was to leave the decision of whether gross negligence was present to
the jury except in the most extreme cases. See, e.g., Hodges v. Helm, 222 So. 2d 418, 420 (Fla. 1969) (distinctions between degrees of negligence not
too complex to be left to the jury); Comment, Gross Negligence: Excessive
Speed and the Guest Statute, 22 U. Fla. L. Rev. 326, 330 (1969) (import of
Hodges is that "justice is best served when the question of the degree of
negligence under the guest statute is placed before the jury for
adjudication"). Thus, our early decisions attempted to draw fine lines and
roughly half the decisions found there was enough evidence to go to the
jury, see, e.g., Dessereau v. Walker, 105 Vt. 99, 102, 163 A. 632, 633
(1933), and half found insufficient evidence to reach the jury, see, e.g.,
Garvey v. Michaud, 108 Vt. 226, 233-34, 184 A. 712, 715 (1936). The last
ten decisions, however, found sufficient evidence to reach the jury on
gross negligence. See Rivard v. Roy, 124 Vt. 32, 36, 196 A.2d 497, 500-01
(1963); Cross v. Estate of Patch, 123 Vt. 11, 17, 178 A.2d 393, 398 (1961);
Langdon-Davies, 122 Vt. at 58, 163 A.2d at 875; Chamberlain v. Delphia, 118
Vt. 193, 196, 103 A.2d 94, 95 (1954); Emery v. Small, 117 Vt. 138, 141, 86 A.2d 542, 543 (1952); Abel, 115 Vt. at 341, 61 A.2d at 608; Huestis' Adm'r
v. Lapham Estate, 113 Vt. 191, 195, 32 A.2d 115, 117-18 (1943); Barrows v.
Powell,

113 Vt. 109, 112, 29 A.2d 708, 710 (1943); Peck v. Gluck, 113 Vt. 53, 56,
29 A.2d 814, 815 (1943); Kerins v. Coates, 112 Vt. 466, 470, 28 A.2d 382,
384 (1942). Increasingly, the rationale for these decisions was contained
in words like these: "Under the facts of this case, this Court cannot say
that the evidence as disclosed by the transcript was such that, in light of
the testimony at the time [the] ruling was made, reasonable men would all
agree that the result contended for by the defendant was the only
conclusion rationally and logically supported by that evidence."
Langdon-Davies, 122 Vt. at 58, 163 A.2d at 875.

While I doubt that the Duty to Aid the Endangered Act will generate
the flood of appeals the guest statute produced, I can't avoid the
disquieting feeling that the real reason plaintiff will not be able to
present his case to the jury is that this is the first case we have
considered under the Act.

I dissent.

FOR THE COURT:

________________________________________
Associate Justice

------------------------------------------------------------------------------
Footnotes

FN1. One decision, Higgins v. Detroit Osteopathic Hosp., 398 N.W.2d 520, 524 (Mich. Ct. App. 1986), contains little recitation of the relevant
facts and is, therefore, difficult to evaluate.

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