Fiano v. Old Saybrook Fire Co. No. 1, Inc.
Fiano v. Old Saybrook Fire Co. No. 1, Inc.
Opinion
**95
The issue that we must resolve in this certified appeal is whether the trial court properly determined that there was no genuine issue of material fact as to whether the defendant James M. Smith, a junior volunteer firefighter with the named defendant, the Old Saybrook Fire Company No. 1, Inc. (fire company), was acting within the scope of his employment with the fire company at the time that the motor vehicle that he was driving collided with a motorcycle being driven by the plaintiff, Michael A. Fiano. The plaintiff brought this action alleging that he had been injured as the result of Smith's negligent operation of his motor vehicle and that the fire company and the defendant town of Old Saybrook (town) were vicariously liable for Smith's negligence pursuant to
*632
**96
General Statutes §§ 7-308
1
and 7-465.
2
The fire company and the town (collectively, municipal defendants) filed a motion for summary judgment, claiming that, because Smith had left the firehouse and was on his way home to attend to personal matters when the collision occurred, there was no genuine issue of material fact as to whether Smith was acting within the scope of his employment with the fire company at that time. The trial court ultimately granted that motion and rendered judgment in favor of the municipal defendants. Thereafter, the plaintiff appealed to the Appellate Court, which affirmed the judgment of the trial court. See
Fiano
v.
Old Saybrook Fire Co. No. 1, Inc.
,
The opinion of the Appellate Court sets forth the following facts, which we have supplemented and viewed in the light most favorable to the plaintiff for purposes of reviewing the trial court's grant of summary judgment. "Smith became a junior member of the fire company in 2012.
3
As a junior member, he was authorized to fight exterior fires and respond to other emergency calls. Smith possessed an electronic key fob that enabled him to enter the firehouse during the day. Smith, along with the other members of the fire company, was encouraged [by the fire company's chiefs and other officers] to spend time at the firehouse monitoring the radio for emergency calls in order to quicken response times, perform training exercises, and to build comradery with one another. In order to entice members to spend time at the firehouse, the fire company provided
*633
televisions, computers, a weight room, laundry facilities, and showers." (Footnote added.)
Fiano
v.
Old Saybrook Fire Co. No. 1, Inc.
, supra,
John Dunn, the chief of the fire company at the time of the accident, testified at his deposition that, "[d]epending on the incident," it can be advantageous for firefighters to be at the firehouse so that they are available to respond immediately to any calls that come in. Dunn further testified that, if an adult firefighter who is **98 authorized to drive a fire truck were at the firehouse, it would be beneficial to the fire company for firefighters to be there when an emergency call came in because "the fire truck could leave the building quicker than if [the firefighters] came from their home[s] ...."
"The fire company utilized a 'points system' in order to track a firefighter's participation, and the firefighters were required to obtain a minimum number of points in order to maintain active membership. Firefighters earned points by responding to emergency calls, staffing the firehouse during emergencies, and, at the fire company's discretion, spending time at the firehouse waiting for a call. Additionally, although the fire company is a volunteer department, the town's firefighters received monetary compensation for their duties. Full members of the fire company are eligible for pensions and receive tax abatements from the town. Members are also paid in the event they respond to a brush fire. Prior to the accident, Smith personally received payment for his time spent staffing the firehouse during emergencies.
"As a junior member, Smith was not allowed to drive any of the fire company's vehicles. Thus, Smith used his personal vehicle to respond to emergency calls, [to] travel to and from the firehouse, and to attend training. Using this vehicle, Smith also would transport other members of the company to emergencies and other fire company related events. The fire company instructed how its members were to use their personal vehicles when responding to emergencies, such as how to properly park at the scene. In his personal vehicle, Smith kept his company issued firefighting equipment, which included a helmet, coat, bunker pants, and fire boots. His vehicle was adorned with a special license plate that identified him as a member of the fire company, which grants him access to closed roads during emergencies."
**99
"On [October 26, 2013] the day of the accident, Smith went to the firehouse [on Main Street in Old Saybrook] because he had a 'couple [of] extra hours to spare.' Smith's girlfriend at the time, who also was a junior member of the fire company, and two other members of the fire company, were also present at the firehouse that day. Smith spent his time at the firehouse monitoring the radio for emergency calls. After spending approximately three and one-half hours at the firehouse, Smith left with the intention to go home to change his clothing in order to have his picture taken for his senior yearbook. Smith departed the firehouse in his personal vehicle, and, as Smith pulled out of the firehouse driveway onto Main Street, his vehicle and the plaintiff's vehicle collided."
Fiano
v.
Old Saybrook Fire Co. No. 1, Inc.
, supra,
Thereafter, the plaintiff, who was seriously injured in the collision, brought this action alleging that the collision was the result of Smith's negligent operation of his vehicle, and the municipal defendants were vicariously liable for Smith's negligence because he was their agent or employee and was performing duties within the scope of his employment at the time of the *634 accident. The municipal defendants filed a motion for summary judgment, claiming that there was no genuine issue of material fact that Smith was not acting as the agent or employee of the fire company at the time of the accident because he had left the firehouse and was on his way home to attend to personal matters. Accordingly, they argued, there was no basis for vicarious liability. After the trial court summarily denied the motion, the municipal defendants filed a motion to reargue and for articulation. The trial court also denied that motion. On the day before jury selection was scheduled to commence, the municipal defendants filed a second motion to reargue and for reconsideration. The trial court granted that motion the same day. The next day, the trial court **100 vacated its prior decision denying the municipal defendants' motion for summary judgment, granted the motion and rendered judgment in favor of those defendants. 4
The plaintiff then appealed to the Appellate Court. That court concluded that, because Smith was "in the process of leaving [the firehouse] to attend to his personal affairs" when the accident occurred, "he was no longer furthering the [municipal] defendants' interests at that time."
This certified appeal followed. The plaintiff contends that, contrary to the conclusions of the trial court and the Appellate Court, there is a genuine issue of material fact as to whether Smith was furthering the fire company's interests at the time of the accident and, therefore, was acting within the scope of his employment, because there was evidence that would support a finding that the fire company benefited from his presence in close proximity to the firehouse when he was "ready, willing and able" to respond immediately to any emergency calls that might come in. We disagree.
**101
We begin with the standard of review. "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle[s] him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent.... When documents submitted in support of a motion for summary judgment
*635
fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue.... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § 380 [now § 17-45].... Our review of the trial court's decision to grant [a] motion for summary judgment is plenary." (Citations omitted; footnote omitted; internal quotation marks omitted.)
Allstate Ins. Co.
v.
Barron
,
We next review the legal principles governing an employer's vicarious liability for the acts of an employee. Under the doctrine of respondeat superior, "[a] master is liable for the wilful torts of his servant
**102
committed within the scope of the servant's employment and in furtherance of his master's business."
Pelletier
v.
Bilbiles,
The parties in the present case also rely on general agency principles. "Agency is defined as the fiduciary relationship [resulting] from [the] manifestation of consent by one person to another that the other shall act on his [or her] behalf and subject to his [or her] control, and consent by the other so to act ...." (Internal quotation marks omitted.)
Beckenstein
v.
Potter & Carrier, Inc.
,
**103
Leary
v.
Johnson
,
"In most cases, it is the function of the jurors to determine from the facts before them whether ... a servant was acting within the scope of his employment.... In some situations, however, the acts of the servant are so clearly without the scope of his authority that the question is one of law." (Citation omitted; internal quotation marks omitted.)
*636
Brown
v.
Housing Authority
,
In the present case, the Appellate Court's conclusion that there was no genuine issue of material fact that Smith was not acting within the scope of his employment by the fire company at the time of the accident as a matter of law was based in large part on this court's decision in
Levitz
v.
Jewish Home for the Aged, Inc.
,
In the present case, Smith had left the firehouse, entered his own personal vehicle and driven the vehicle away from the premises with the intent of attending to his own personal affairs when the accident occurred. Thus, in the absence of any additional circumstances rendering the case meaningfully distinguishable, we would agree with the Appellate Court that Levitz is controlling here. The plaintiff contends that there are three such circumstances. First, the plaintiff contends that, unlike in the present case, there was no evidence in Levitz that Blankenfeld's off duty presence at the Home benefited his employer. Second, the plaintiff contends that Blankenfeld's presence at the Home "had nothing to do with his job and everything to do with his status as a resident," while Smith was present at the firehouse to be on call for emergencies. Third, he contends that Blankenfeld had left the Home's premises before entering his vehicle, whereas, in the present case, "Smith was still on [fire company] property when he negligently pulled into the plaintiff, and never successfully left the premises."
**105 We can easily dispose of the plaintiff's second and third claims. With respect to the plaintiff's claim that Levitz is distinguishable because Blankenfeld had not been working at the Home before the accident occurred, this court expressly stated in Levitz that, "[e]ven if we were to assume that Blankenfeld had worked at his usual employment on the day of the accident, this fact, in the light of the other evidence, would not impose liability on the Home."
*637
Levitz
v.
Jewish Home for the Aged, Inc.
,
Accordingly, we turn to the plaintiff's primary contention that this case is distinguishable from Levitz because Smith's presence in close proximity to the firehouse at the time of the accident benefited his employer. Specifically, the plaintiff contends that the evidence would support a finding that the fire company benefited from Smith's presence on the premises after he left the firehouse and entered his vehicle because he would have been available to respond immediately to an emergency call.
In support of this claim, the plaintiff relies on the Appellate Court's decision in
Glucksman
v.
Walters
,
In the present case, the plaintiff contends that Glucksman supports his claim that Smith was acting within the scope of his employment when the accident occurred because, like Walters, Smith's presence at the firehouse was due to his employment there, and he was providing a benefit to the fire company by being ready, willing and able to respond immediately to emergency calls. The plaintiff fails to recognize, however, that, in Glucksman , Walters was not merely ready, willing and able to provide a benefit to the YMCA, but he actually engaged in an effort to do so when he attempted to maintain order on the basketball court . Thus, Glucksman does not support the proposition that an employee who is, in fact, attending to purely personal affairs, but who is ready, willing and able to provide a benefit to his employer if summoned to do so, may be deemed to be acting for the employer's benefit, even if the employee is not actually summoned and does not actually provide any beneficial services.
Cases from our sister jurisdictions addressing the question of whether on call employees are acting for the benefit of their employers merely by virtue of being on call are instructive on this issue. In
Wayman
v.
Accor North America, Inc.
,
On appeal, the Court of Appeals of Kansas observed that "the modern rationale for vicarious liability is the enterprise justification concept .... Under such a justification, the losses caused by an employee's tort are placed on the enterprise as a cost of doing business and on the employer for having engaged in the enterprise." (Internal quotation marks omitted.)
The plaintiff, however, raises two additional claims to support his position that there is a genuine issue of material fact as to whether Smith was on duty when the accident occurred. First, he points to Dunn's testimony that he believed that a firefighter who had been involved in an accident while driving home after a call was still "on duty" at that time for purposes of workers' compensation law. See General Statutes § 31-275 (1) (A) (i)
**111
("[f]or a police officer or firefighter, 'in the course of his employment' encompasses such individual's departure from such individual's place of abode to duty, such individual's duty, and the return to such individual's place of abode after duty"). Second, he contends that a jury reasonably could find that, as a
volunteer
firefighter, Smith was on duty for workers' compensation purposes because he testified that "he was following the orders of superior officers in being present at the firehouse on a weekend ...." See General Statutes § 7-314 (a) (with respect to volunteer firefighters, the term fire duties includes "duties performed while at fires, while answering alarms of fire, while answering calls for mutual aid assistance, while returning from calls for mutual aid assistance, while directly returning from fires, while at fire drills or parades, while going directly to or returning directly from fire drills or parades, while at tests or trials of any apparatus or equipment normally used by the fire department, while going directly to or returning directly from such tests or trials, while instructing or being instructed in fire duties, while answering or returning from ambulance calls where the ambulance service is part of the fire service, while answering or returning from fire department emergency calls and any other duty ordered to be performed by a superior or commanding officer in the fire department"); see also
Evanuska
v.
Danbury
,
We are not persuaded. Even if we were to assume that Smith was acting within the scope of his employment for purposes of workers' compensation law-an issue on which we express no opinion-that would not necessarily mean that he
*641
was acting within the scope of his employment for purposes of imposing vicarious liability on his employer. The public policies underlying workers' compensation and the doctrine of respondeat superior are very different.
7
Specifically, "[t]he purpose
**113
of the [workers'] compensation statute is to compensate the worker for injuries arising out of and in the course of employment, without regard to fault, by imposing a form of strict liability on the employer.... The Workers' Compensation Act compromise[s] an employee's right to a [common-law] tort action for work related injuries in return for relatively quick and certain compensation." (Citation omitted; internal quotation marks omitted.)
Panaro
v.
Electrolux Corp.,
For the foregoing reasons, we conclude that a reasonable jury, properly instructed in the legal principles governing the doctrine of respondeat superior, could conclude only that Smith was engaged in the pursuit of personal affairs when the accident occurred, and he was not acting for the benefit of the fire company or in furtherance of its interests. Accordingly, we conclude that the Appellate Court properly upheld the trial court's grant of summary judgment in favor of the municipal defendants on the ground that there is no genuine issue of material fact that Smith was not acting within the scope of his employment at the time of the accident and, therefore, that the municipal defendants could not be held vicariously liable for his negligence as a matter of law. We therefore affirm the judgment of the Appellate Court.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
General Statutes § 7-308 (b) provides in relevant part: "Each municipality of this state, notwithstanding any inconsistent provision of law, general, special or local, or any limitation contained in the provisions of any charter, shall protect and save harmless any volunteer firefighter, volunteer ambulance member or volunteer fire police officer of such municipality from financial loss and expense, including legal fees and costs, if any, arising out of (1) any claim, demand, suit or judgment by reason of alleged negligence on the part of such volunteer firefighter, volunteer ambulance member or volunteer fire police officer while performing fire, volunteer ambulance or fire police duties ...."
General Statutes § 7-465 (a) provides in relevant part: "Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality, except firemen covered under the provisions of section 7-308, and on behalf of any member from such municipality of a local emergency planning district, appointed pursuant to section 22a-601, all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person's civil rights or for physical damages to person or property, except as set forth in this section, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment ...."
We note that § 7-465 has been amended by the legislature since the events underlying the present case; see, e.g., Public Acts 2015, No. 15-85, § 1; that amendment has no bearing on the merits of this appeal. In the interest of simplicity, we refer to the current revision of the statute.
Smith was a junior in high school when he joined the fire company as a junior member.
In his appeal to the Appellate Court, the plaintiff claimed that the trial court improperly granted the municipal defendants' second motion to reargue and for reconsideration and then granted their motion for summary judgment without providing him with an opportunity to be heard on the issue. See
Fiano
v.
Old Saybrook Fire Co. No. 1, Inc.
, supra,
The plaintiff also relies on two Superior Court cases,
Ambrosio
v.
AWAC Services Co.
, Docket No. CV-12-6036172-S,
The municipal defendants appear to contend that the definition of "fire duties" set forth in § 7-314b (b) is the exclusive definition for workers' compensation purposes. See General Statutes § 7-314b (b) (defining " 'fire duties' " as "duties performed while at fires, answering alarms of fire, answering calls for mutual aid assistance, returning from calls for mutual aid assistance, at fire drills or training exercise, and directly returning from fires"). In
Evanuska
, however, this court applied the definition of "fire duties" set forth in § 7-314 (a) to a workers' compensation claim brought pursuant to § 7-314a (a). See
Evanuska
v.
Danbury , supra,
Indeed, "courts have repeatedly noted the distinction between [workers'] compensation law and the theory of vicarious liability."
Wayman
v.
Accor North America, Inc.
, supra,
In support of his claim that this court should be guided by principles of workers' compensation law in the present case, the plaintiff relies on this court's statement that "a charge relating to principles of law enunciated in workers' compensation cases is equally applicable to cases brought under the common law."
Cirrito
v.
Turner Construction Co.
,
Reference
- Full Case Name
- Michael A. FIANO v. OLD SAYBROOK FIRE COMPANY NO. 1, INC., Et Al.
- Cited By
- 10 cases
- Status
- Published