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

Annotate this Case
HARDINGHAM_V_UNITED_COUNSELING_SERV.94-096; 164 Vt 158; 667 A.2d 289

[Filed 01-Sep-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                              November Term, 1994
of Bennington, et al.

Matthew I. Katz, J.

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

       Stephen G. Norten 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.

       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.  We resolve 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.  The four-member
  panel is equally divided on that issue, and it must be reargued before a
  full court.


       In January 1991, plaintiff filed a complaint against (1) the United
  Counseling Service (UCS), a private, nonprofit charitable organization
  providing counseling and psychiatric treatment to persons with mental
  illness, mental retardation, or substance-abuse problems; (2) John Halpin,


  UCS's executive director; (3) Donald Kowalski, a psychiatrist and
  UCS's medical director; (4) David O'Brien, UCS's director of outpatient
  services; and (5) Larry Gordon, UCS's coordinator of emergency services. 
  The complaint arose from the following facts, which are either undisputed
  or viewed most favorably to plaintiff.

       In November 1987, UCS employed plaintiff as an emergency services
  counselor.  UCS knew that plaintiff was a recovering alcoholic, but
  plaintiff had never been a client of UCS or any of its employees.  On
  February 3, 1988, Halpin became aware that plaintiff was drinking again. 
  After failing to persuade plaintiff to seek psychological and medical
  attention, Halpin asked Gordon 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. 
  The next day, plaintiff was suspended from his job because of his
  condition; that same day, plaintiff told O'Brien during a telephone
  conversation 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 informed Gordon, O'Brien and Kowalski of plaintiff's condition.  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 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.  He also alleged that the Rutland Community Correctional Center and
  one of its security officers were grossly negligent in failing to provide
  him with timely medical attention, thereby violating his rights under the
  Eighth and Fourteenth Amendments to the United States Constitution.  The
  correction-center defendants had the case removed to federal district
  court, where plaintiff sought to compel Kowalski to turn over notes he had
  taken during the events that led to the lawsuit.  The federal court denied
  plaintiff's motion to compel, ruling that Kowalski's notes were taken as
  the result of plaintiff's repeated threats to sue those trying to help him,
  and thus were prepared in anticipation of litigation.

       Eventually, the UCS defendants moved for summary judgment, and the
  correction-center defendants moved for dismissal, asserting that the claims
  against them were barred by the Eleventh Amendment.  The district court
  granted the motion to dismiss, but declined to rule on the motion for
  summary judgment.  Instead, the court remanded the case to Chittenden
  Superior Court because all claims over which there was original federal
  jurisdiction were dismissed, and the remaining claims against the UCS
  defendants raised novel questions concerning Vermont statutory law.

       In January 1993, 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
  appeal, plaintiff argues that (1) the court erred by granting summary
  judgment to all defendants and to UCS in particular, and (2) Kowalski
  should have been required to produce his notes of the events at issue in
  the case.


       Plaintiff first argues that the superior court improperly concluded,
  as a matter of law, that defendants were entitled to the protections of the
  Duty to Aid the Endangered Act, 12 V.S.A. § 519.  The Act provides as

            § 519.  Emergency Medical Care

             (a) A person who knows that another is exposed to grave physical
            harm shall, to the extent that the same can be rendered without
            danger or peril to himself or without interference with important
            duties owed to others, give reasonable assistance to the exposed
            person unless that assistance or care is being provided by others.
             (b) A person who provides reasonable assistance in compliance
            with subsection (a) of this section shall not be liable in civil
            damages unless his acts constitute gross negligence or unless he
            will receive or expects to receive remuneration.  Nothing contained
            in this subsection shall alter existing law with respect to tort
            liability of a practitioner of the healing arts for acts committed
            in the ordinary course of his practice.
             (c) A person who willfully violates subsection (a) of this section
            shall be fined not more than $100.00.


       Plaintiff contends that summary judgment is inappropriate because the
  existence of the following factual statutory prerequisites are in dispute
  and must be resolved by the fact finder before the trial court can
  determine if the Act applies: (1) that an emergency existed, (2) that
  defendants provided "reasonable assistance," and (3) that defendants
  neither received remuneration for their actions nor were practitioners of
  the healing arts acting in the ordinary course of their practice.


       Regarding the first point, plaintiff contends that defendants knew of
  his deteriorating condition for some time, and thus there was no
  "suddenness or randomness" to the situation that led to defendants'
  actions.  Assuming these facts are true, they do not preclude application
  of the Act.  The Act applies if the rescuer knows that another is exposed
  to "grave physical harm." There can be no dispute that the individual
  defendants knew defendant was in grave physical danger.  Although
  plaintiff's condition on February 11 may not have been the result of a
  single, traumatic event, defendants felt compelled at that point to act to
  save plaintiff from serious harm. See Jackson v. Mercy Health Center, Inc.,
  864 P.2d 839, 845 (Okla. 1993) (keeping in mind Good Samaritan statute's
  purpose to encourage medical providers to intervene, term "emergency" must
  be construed broadly; emergency occurs whenever person appears to be ill or
  in need of succor); cf. Villamil v. Benages, 628 N.E.2d 568, 575 (Ill. App.
  Ct. 1993) (affirming summary judgment for defendant doctor in case where
  trial court found no triable issue of fact as to whether emergency existed
  for purposes of Good Samaritan statute when doctor, visiting another
  patient at hospital, was called in to deliver premature infant).

       Regarding the second point, we construe the term "reasonable
  assistance" to refer only to the extent of the rescuer's effort to comply
  with the statutory duty to render aid, not to the adequacy of the aid
  actually rendered.  A person who willfully fails to make a reasonable
  effort to provide assistance is subject to a $100 fine, 12 V.S.A. § 519(c),
  but is not subject to civil liability unless the person's actions are
  grossly negligent or unless the person receives or expects to receive
  remuneration.  Any other interpretation would render the statute internally
  inconsistent and would thwart the statute's primary purpose -- to encourage
  rescuers to provide assistance by protecting them from civil liability for
  ordinary negligence.  See Marc A. Franklin, Vermont Requires Rescue: A
  Comment, 25 Stan. L. Rev. 51, 57 n.43 (1972) (by immunizing rescuers from
  civil liability for ordinary negligence as long as "reasonable assistance"
  is provided, § 519(b) would be internally contradictory unless "reasonable"
  relates to effort to comply with duty to aid rather than to adequacy of
  aid); Mallory v. City of Detroit, 449 N.W.2d 115, 117 (Mich. Ct. App.


  1989) (plaintiffs' allegations that emergency medics were negligent in
  failing to administer timely and appropriate medical treatment were not
  sufficient to render Good Samaritan statute inapplicable, given that
  statute protected such persons from liability absent showing that they were
  grossly negligent).

       Here, defendants' efforts to assist plaintiff were more than
  reasonable.  Defendants made repeated visits to plaintiff's apartment; they
  made multiple calls to plaintiff's wife and to emergency rooms and
  physicians; they sought the help of the police and the emergency rescue
  squad; they physically removed plaintiff from his home, despite his
  resistance, so that police would assist them; and they accompanied
  plaintiff to the hospital emergency room and encouraged him to consent to
  treatment.  As the trial court noted, these acts probably saved plaintiff's
  life.  Viewing the facts most favorably to plaintiff, no reasonable person
  could conclude that defendants failed to make reasonable efforts to assist

       Regarding the third point, the individual defendants did not receive
  remuneration for assisting plaintiff, within the meaning of § 519, merely
  because they were paid their regular salary during the period they helped
  him.  Cf. Clarken v. United States, 791 F. Supp. 1029, 1035 (D.N.J. 1991)
  (conduct of military medics is not taken outside protection of Good
  Samaritan statute merely because they were compensated for their services
  by military, as opposed to recipient of services); Tatum v. Gigliotti, 565 A.2d 354, 358 (Md. Ct. Spec. App. 1989) (salaried emergency medical
  technician does not receive "compensation" within meaning of Good Samaritan
  statute unless he charges victim for services rendered).

       Nor can plaintiff successfully argue that, in assisting him,
  defendants acted in the ordinary course of their practice.  Assuming that
  defendants are practitioners of the "healing arts," they did not act in the
  ordinary course of their practice when they entered a co-worker's apartment
  and delivered him against his will to the police, the emergency room, and
  eventually the correctional center.  There is no evidence of any import
  that plaintiff was a client of UCS or any of the individual defendants. 
  Rather than a client-therapist relationship, this case concerns friends


  trying to help a fellow co-worker in time of trouble.  Defendants
  cannot be deprived of the protection of the Act merely because they had
  some expertise in matters relating to plaintiff's problems; indeed, the Act
  was intended in particular to encourage medical personnel to provide aid
  for endangered persons.  See Note, Duty to Aid the Endangered Act: The
  Impact and Potential of the Vermont Approach, 7 Vt. L. Rev. 143, 145,
  154-56 (1982) (§ 519 arose principally out of Legislature's concerns that
  medical personnel were reluctant, because of fear of litigation, to help
  those in need when no duty to help existed); Franklin, supra, 25 Stan. L.
  Rev. at 52 n.13 (primary motivation behind Vermont's Good Samaritan law was
  concern that physicians' fears of malpractice suits were causing them to
  drive past accident scenes rather than stop and render assistance); Clayton
  v. Kelly, 357 S.E.2d 865, 868 (Ga. Ct. App. 1987) (Good Samaritan statutes
  are directed at persons, particularly physicians, who by chance and on
  irregular basis, are called upon to render emergency aid; fact that
  physician is skilled in subject matter in question, or that exigency lies
  within physician's expertise, does not exempt physician from protection of
  statute by creating duty where none existed before); Gordin v. William
  Beaumont Hosp., 447 N.W.2d 793, 796 (Mich. Ct. App. 1989) (off-duty
  physicians are entitled to partial immunity under Good Samaritan statute;
  otherwise, they would be discouraged from responding to emergency
  situations).  In short, defendants' acts of assistance in this case fall
  squarely within the Duty to Aid the Endangered Act.

       As noted above, the four-member panel has divided equally on the issue
  of whether the superior court erred in determining that, as a matter of
  law, defendants' actions were not grossly negligent.  Accordingly, this
  issue is not resolved by the current mandate and therefore must be reargued
  before a full court.


       Plaintiff also argues that, even if the individual defendants are
  protected by § 519, UCS is not entitled to derivative immunity under the
  statute.  We conclude that, as with the individual defendants, UCS is
  entitled to summary judgment because the Act applies to organizations as


  well as individuals and no preexisting clinical relationship existed
  between UCS and plaintiff. The Act applies to any "person."  12 V.S.A. §
  519.  For the purpose of construing statutes, the Legislature has defined
  "person" to "include any natural person, corporation, municipality, the
  state of Vermont or any department, agency or subdivision of the state, and
  any partnership, unincorporated association or other legal entity."  1
  V.S.A. § 128.  This definition applies "unless such construction is
  inconsistent with the manifest intent of the general assembly or repugnant
  to the context of the same statute."  1 V.S.A. § 101.  The broad definition
  of "person" set forth in § 128 is completely consistent with § 519's
  legislative purpose of encouraging persons, including medical personnel
  working for hospitals and other organizations, to assist those in danger.

       As noted, the undisputed facts establish that UCS had no clinic-client
  relationship with plaintiff.  Therefore, because § 519 is otherwise
  applicable, UCS is entitled to partial immunity under the Act, and summary
  judgment is appropriate.  See Jackson, 864 P.2d  at 842, 845 (where no
  preexisting relationship was established between hospital and plaintiff,
  hospital was clearly within protection of Good Samaritan statute, and had
  complete defense against ordinary negligence claims); cf. Hamburger v.
  Henry Ford Hosp., 284 N.W.2d 155, 159 (Mich Ct. App. 1979) (hospital not
  entitled to immunity under Good Samaritan law for ordinary negligence,
  regardless of immunity of negligent employees, because hospital-patient
  relationship existed at time of negligent act).


       Finally, plaintiff argues that Kowalski should have been required to
  produce the notes he took during plaintiff's rescue.  As plaintiff
  concedes, he is asking us to reverse the ruling of the federal district
  court.  Apart from jurisdictional considerations, we decline to consider
  the issue. Plaintiff neither renewed his motion to compel before the
  superior court nor even asked the court to consider the effect of the
  federal district court's ruling on his motion.  Further, plaintiff never
  sought additional discovery under V.R.C.P. 56(f).  Rather, plaintiff agreed
  that the case was ripe


  for decision on the summary judgment motions already filed in federal
  court.  Under these circumstances, the issue is not properly preserved for
  consideration by this Court.  See Fitzgerald v. Congleton, 155 Vt. 283,
  295, 583 A.2d 595, 602 (1990) (issues not raised before trial court by
  party opposed to summary judgment were not properly preserved for review
  and would not be considered on appeal from grant of summary judgment).

       Affirmed on all issues except whether the jury could find defendant
  was grossly negligent, which shall be reargued before the full Court in the
  first regular term following the September Term.

                          FOR THE COURT:

                          Associate Justice