Fiano v. Old Saybrook Fire Co. No. 1, Inc. , 332 Conn. 93 ( 2019 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
MICHAEL A. FIANO v. OLD SAYBROOK FIRE
COMPANY NO. 1, INC., ET AL.
(SC 20135)
Robinson, C. J., and McDonald, D’Auria,
Mullins, Kahn and Vertefeuille, Js.
Syllabus
The plaintiff sought to recover damages from the defendants, S, F Co., and
the town of Old Saybrook, for personal injuries he sustained when his
motorcycle collided with a motor vehicle operated by S as S was exiting
the driveway of F Co., a fire department in Old Saybrook, and entering
a public roadway. The plaintiff alleged that the collision had occurred
as a result of S’s negligent operation of his motor vehicle when S, a
junior volunteer firefighter with F Co., was acting within the scope of
his employment with F Co. The plaintiff further alleged that, because
S was an employee or agent of F Co. and the town, they were vicariously
liable for S’s negligence pursuant to the statutes (§§ 7-308 and 7-465)
that indemnify volunteer firemen and municipal employees for liability
imposed while acting within the scope of their employment. F Co. and
the town filed a motion for summary judgment, claiming that, because
S was leaving the fire department and on his way home to attend to
personal matters when the collision occurred, there was no genuine
issue of material fact as to whether S was acting within the scope of
his employment with F Co. at that time. The trial court granted the
motion and rendered judgment for F Co. and the town, from which the
plaintiff appealed to the Appellate Court. The Appellate Court upheld
the trial court’s granting of the motion for summary judgment, and the
plaintiff, on the granting of certification, appealed to this court. Held
that the Appellate Court properly upheld the trial court’s granting of
summary judgment in favor of F Co. and the town on the ground that
there was no genuine issue of material fact that S was not acting within
the scope of his employment at the time of the accident and, therefore,
that F Co. and the town could not be held vicariously liable for S’s
negligence as a matter of law: a reasonable jury, properly instructed in
the legal principles governing the doctrine of respondeat superior, could
conclude only that S was engaged in the pursuit of purely personal
affairs and was not under the control of F Co. or acting in furtherance
of its business when the accident occurred, and the fact that S was on
or very close to F Co.’s premises at the time of the accident and would
have been able to respond immediately if there had been an emergency
call did not lead to the conclusion that F Co. actually exercised control
over S or that S was performing some act for F Co.’s benefit at that
time; moreover, although there was some overlap in the factors to be
considered in determining whether an employee is acting within the
scope of his employment for purposes of workers’ compensation law
and under the doctrine of respondeat superior, the public policies under-
lying that law and doctrine are very different, and, even if S was engaged
in fire duties at the time of the accident within the meaning of the
statute (§ 7-314 [a]) that defines fire duties with respect to volunteer
firefighters for purposes of workers’ compensation coverage, S was not
acting within the scope of his employment for purposes of imposing
vicarious liability on F Co. or the town.
Argued February 20—officially released June 25, 2019
Procedural History
Action to recover damages for personal injuries sus-
tained as a result of the defendants’ alleged negligence,
brought to the Superior Court in the judicial district of
Middlesex, where the court, Aurigemma, J., granted
the motion for summary judgment filed by the named
defendant et al. and rendered judgment thereon, from
which the plaintiff appealed to the Appellate Court,
Keller, Bright and Mihalakos, Js., which affirmed the
trial court’s judgment, and the plaintiff, on the granting
of certification, appealed to this court. Affirmed.
James J. Healey, with whom was Douglas P. Maho-
ney, for the appellant (plaintiff).
Michael F. O’Connor, for the appellees (named defen-
dant et al.).
Opinion
VERTEFEUILLE, J. 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 com-
pany), 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 General Statutes
§§ 7-3081 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 ulti-
mately granted that motion and rendered judgment in
favor of the municipal defendants. Thereafter, the plain-
tiff appealed to the Appellate Court, which affirmed the
judgment of the trial court. See Fiano v. Old Saybrook
Fire Co. No. 1, Inc., 180 Conn. App. 717, 744, 184 A.3d
1218 (2018). We then granted the plaintiff’s petition
for certification to appeal from the judgment of the
Appellate Court, limited to the following issue: ‘‘Did
the Appellate Court properly uphold the trial court’s
granting of summary judgment on the ground that there
is no genuine issue of material fact that an agency
relationship did not exist between the [municipal]
defendants and [Smith] at the time of his motor vehicle
accident with the plaintiff?’’ Fiano v. Old Saybrook Fire
Co. No. 1, Inc., 329 Conn. 910, 186 A.3d 14 (2018). We
affirm the judgment of the Appellate Court.
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 author-
ized to fight exterior fires and respond to other emer-
gency 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 com-
pany, 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 mem-
bers to spend time at the firehouse, the fire company
provided televisions, computers, a weight room, laun-
dry facilities, and showers.’’ (Footnote added.) Fiano
v. Old Saybrook Fire Co. No. 1, Inc., supra, 180 Conn.
App. 734.
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 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 fire-
house waiting for a call. Additionally, although the fire
company is a volunteer department, the town’s firefight-
ers received monetary compensation for their duties.
Full members of the fire company are eligible for pen-
sions and receive tax abatements from the town. Mem-
bers 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 dur-
ing 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 prop-
erly 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 emer-
gencies.’’
‘‘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 monitor-
ing the radio for emergency calls. After spending
approximately three and one-half hours at the fire-
house, 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, 180 Conn. App. 734–35.
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 vicari-
ously 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 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 munici-
pal defendants filed a motion to reargue and for articula-
tion. 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 rear-
gue and for reconsideration. The trial court granted that
motion the same day. The next day, the trial court
vacated its prior decision denying the municipal defen-
dants’ 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 per-
sonal affairs’’ when the accident occurred, ‘‘he was no
longer furthering the [municipal] defendants’ interests
at that time.’’ Id., 739. Accordingly, the Appellate Court
concluded that the trial court properly had determined
that there was no genuine issue of material fact that
Smith was not acting as the fire company’s employee,
and it affirmed the judgment of the trial court. See
id., 744.
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 com-
pany’s interests at the time of the accident and, there-
fore, was acting within the scope of his employment,
because there was evidence that would support a find-
ing 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 emer-
gency calls that might come in. We disagree.
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 sub-
mitted in support of a motion for summary judgment
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, how-
ever, 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, 269 Conn. 394, 405–406, 848
A.2d 1165 (2004).
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
committed within the scope of the servant’s employ-
ment and in furtherance of his master’s business.’’ Pel-
letier v. Bilbiles, 154 Conn. 544, 547, 227 A.2d 251 (1967).
‘‘A servant acts within the scope of employment while
engaged in the service of the master, and it is not synon-
ymous with the phrase during the period covered by
his employment. . . . While a servant may be acting
within the scope of his employment when his conduct
is negligent, disobedient and unfaithful . . . that does
not end the inquiry. Rather, the vital inquiry in this
type of case is whether the servant on the occasion in
question was engaged in a disobedient or unfaithful
conducting of the master’s business, or was engaged
in an abandonment of the master’s business. . . .
Unless [the employee] was actuated at least in part by a
purpose to serve a principal, the principal is not liable.’’
(Citations omitted; internal quotation marks omitted.)
A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn.
200, 209–10, 579 A.2d 69 (1990); see also Harp v. King,
266 Conn. 747, 782–83, 835 A.2d 953 (2003) (‘‘[i]n
determining whether an employee has acted within the
scope of employment, courts look to whether the
employee’s conduct: [1] occurs primarily within the
employer’s authorized time and space limits; [2] is of
the type that the employee is employed to perform; and
[3] is motivated, at least in part, by a purpose to serve
the employer’’).
The parties in the present case also rely on general
agency principles. ‘‘Agency is defined as the fiduciary
relationship [resulting] from [the] manifestation of con-
sent 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 & Car-
rier, Inc., 191 Conn. 120, 132, 464 A.2d 6 (1983). ‘‘An
essential ingredient of agency is that the agent is doing
something at the behest and for the benefit of the princi-
pal.’’ Leary v. Johnson, 159 Conn. 101, 105–106, 267
A.2d 658 (1970). ‘‘[I]t must be the affairs of the principal,
and not solely the affairs of the agent, which are being
furthered in order for the doctrine [of respondeat supe-
rior] to apply.’’ Mitchell v. Resto, 157 Conn. 258, 262,
253 A.2d 25 (1968).
‘‘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.) Brown v. Housing Author-
ity, 23 Conn. App. 624, 628, 583 A.2d 643 (1990), cert.
denied, 217 Conn. 808, 585 A.2d 1233 (1991).
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 employ-
ment 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.,
156 Conn. 193, 239 A.2d 490 (1968). See Fiano v. Old
Saybrook Fire Co. No. 1, Inc., supra, 180 Conn. App.
743–44. In Levitz, the defendant Igors Blankenfeld was
an employee of the defendant Jewish Home for the
Aged, Inc. (Home), in New Haven. See Levitz v. Jewish
Home for the Aged, Inc., supra, 194. Blankenfeld also
lived at the Home. See id., 195. On the date at issue,
Blankenfeld left his room in the Home and went to the
office, where he received his pay. Id., 196. He then left
the Home and went to his vehicle, which was parked
on a public road in front of the Home. Id., 195–96. He
intended to drive the vehicle downtown to pay some
of his own bills. See id., 196. When he started the vehicle,
however, ‘‘it went out of control, mounted a curb and
struck the plaintiff, [a resident of the Home] who was
seated on the steps of the [Home’s] premises.’’ Id. The
plaintiff brought a negligence action against Blanken-
feld and the Home, as Blankenfeld’s employer. See id.,
194. After the jury returned a verdict for the plaintiff
against both defendants, the Home filed a motion to
set aside the verdict and for judgment in its favor not-
withstanding the verdict. See id. The trial court granted
the motion on the ground that the evidence conclusively
established that Blankenfeld was not acting on behalf
of the Home at the time of the accident. See id. On
appeal, this court affirmed the judgment of the trial
court, concluding that ‘‘[t]he evidence is reasonably
susceptible of but one conclusion, that is, that, at the
time of the accident, Blankenfeld was not performing
an act for the Home in furtherance of its business.’’
Id., 197–98.
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 con-
tends 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 suc-
cessfully left the premises.’’
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.’’ Levitz v. Jew-
ish Home for the Aged, Inc., 156 Conn. 198. With respect
to the plaintiff’s claim that Levitz is distinguishable
because Blankenfeld’s car was not parked on the
Home’s premises, nothing in Levitz suggests that the
result in that case turned on the precise location of
Blankenfeld’s vehicle when he entered it. Rather, the
court’s exclusive focus was on whether Blankenfeld
was ‘‘performing an act for the Home in furtherance
of its business’’ when he entered and drove the car.
Id., 197–98.
Accordingly, we turn to the plaintiff’s primary con-
tention that this case is distinguishable from Levitz
because Smith’s presence in close proximity to the fire-
house 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, 38
Conn. App. 140, 659 A.2d 1217, cert. denied, 235 Conn.
914, 665 A.2d 608 (1995).5 In Glucksman, the defendant,
Kris Walters, was a part-time employee of the defendant
Young Men’s Christian Association (YMCA) in Stam-
ford. See id., 141, 142. During a pickup basketball game
at the YMCA, Walters assaulted and seriously injured
the plaintiff, Allen Glucksman, after Glucksman fouled
Walters. See id., 142–43. Walters was not working his
scheduled hours at the time, but evidence was pre-
sented that part-time employees of the YMCA ‘‘consid-
ered themselves to be on duty, ready to help maintain
order in the facility, during work and off hours.’’ Id.,
143. The plaintiff brought a negligence action against
both Walters and the YMCA, under the doctrine of
respondeat superior. See id., 141. The trial court granted
the YMCA’s motion for a directed verdict in its favor.
See id. The Appellate Court reversed that ruling on
appeal; id., 148; concluding that the evidence would
support findings that, ‘‘but for his position as an
employee, Walters would not have been on the basket-
ball court, that Walters had been responsible for helping
to maintain order on the basketball court, that the
YMCA benefited when Walters played basketball
because it had an employee on the court to help keep
order, that the commission of fouls disrupts a basketball
game, and that Walters attacked Glucksman in a mis-
guided effort to prevent Glucksman from committing
fouls and disrupting the game.’’ Id., 145.
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., 45 Kan. App. 2d 526, 251 P.3d 640,
review denied, 292 Kan. 969 (2011), Frederick Ristow
was the general manager of a Motel 6, where he also
lived. See id., 527–28. As part of his work duties, Ristow
was ‘‘on call [twenty-four] hours per day to handle emer-
gency situations.’’ Id., 528. On the day in question, Ris-
tow returned to the motel early in the afternoon after
visiting out of state family members. See id. ‘‘After ask-
ing the manager on duty to stay so he could get some-
thing to eat, Ristow left the motel and went to [a nearby
tavern] where he stayed until approximately 8 p.m.
drinking alcohol. . . . Although Ristow understood
that he was on call if the manager on duty needed help
at the motel, he did not receive any phone calls that
day about problems at the motel.’’ Id. Ristow left the
tavern at approximately 8 p.m. and returned to the
motel. See id. As he attempted to park his vehicle, he
struck and injured the plaintiff, Donald Wayman, who
was a guest at the motel and was standing near the
doorway of his room. See id., 527–28. Wayman filed
an action against both Ristow and, under a theory of
vicarious liability, his employer. See id., 529. The trial
court granted the employer’s motion for summary judg-
ment on the ground that Ristow had not been acting
within the scope of his employment. See id., 530.
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 busi-
ness and on the employer for having engaged in the
enterprise.’’ (Internal quotation marks omitted.) Id.,
538. The court concluded that ‘‘[i]mposing vicarious lia-
bility on an employer for the negligent acts of an
employee merely because the employee is on call does
not serve this justification.’’ Id. Because Ristow had
been returning from a ‘‘purely personal . . . excur-
sion’’ when the accident occurred, and had not been
called to respond to any emergency at the motel, the
court concluded that ‘‘he was not performing any work-
related activity,’’ despite the fact that the accident
occurred in the motel parking lot. Id., 539; see also Le
Elder v. Rice, 21 Cal. App. 4th 1604, 1608–1609, 26 Cal.
Rptr. 2d 749 (1994) (when employee was on personal
errand, fact that he was on call twenty-four hours per
day seven days per week and had ability to respond to
calls at any hour from any location did not mean that
his activities were within scope of employment, even
though his being on call benefited employer); Le Elder
v. Rice, supra, 1609 (‘‘[p]ublic policy would be ill-served
by a rule establishing [twenty-four] hour employer lia-
bility for on-call employees, regardless of the nature of
the employee’s activities at the time of an accident’’);
Le Elder v. Rice, supra, 1610 (‘‘[on call] accessibility or
availability of an employee does not transform his or
her private activity into company business’’); Migliore
v. Gill, 81 So. 3d 900, 903, 904 (La. App. 2011) (fact
that employee was on call and expected to report to
employer’s premises within thirty minutes of being sum-
moned did not give rise to vicarious liability when
employee was driving personal vehicle and was engaged
in strictly personal activity at time of accident, and
employer had exercised no control over him), review
denied, 84 So. 3d 555 (La. 2012); Clickner v. Lowell, 422
Mass. 539, 543–44, 663 N.E.2d 852 (1996) (for purposes
of determining whether municipal employer was
required to indemnify employee, fact that employee was
on call and was attempting to call employer in response
to page at time of accident did not mean that employee
was acting within scope of employment duties); John-
son v. Daily News, Inc., 34 N.Y.2d 33, 35–36, 312 N.E.2d
148, 356 N.Y.S.2d 1 (1974) (employer is not vicariously
liable for acts of on call employee unless employee is
‘‘performing some act in furtherance of a duty he owes
the employer and . . . the employer is, or could be,
exercising some control, directly or indirectly, over his
activity’’); Thurmon v. Sellers, 62 S.W.3d 145, 155 (Tenn.
App. 2001) (in determining whether on call employee
is acting within scope of employment, court should
consider whether employee’s use of vehicle benefited
employer, whether employee was subject to employer’s
control at time of accident, whether employee’s activi-
ties were restricted while on call, whether employee’s
use of vehicle was authorized by employer and employ-
ee’s primary reason for using vehicle at time of
accident).
We recognize that the plaintiff in the present case
has expressly denied making any claim that the fire
company would be vicariously liable for any tort com-
mitted by Smith at any time that he was on call to
respond to emergencies. Rather, he claims that the fire
company is liable here only because Smith was still
on or very close to the firehouse premises when the
accident occurred and, therefore, that he would have
been able to respond immediately if there had been an
emergency call. We are aware of no authority, however,
for the proposition that the test for determining whether
an employee was acting within the scope of his employ-
ment or, instead, was merely on call, is how long it
would have taken the employee to respond to the
employer’s call to return to duty if such a call had
occurred. Rather, the test is whether, at the relevant
time, the employer had actually exercised control over
the employee and the employee was actually per-
forming some act for the employer’s benefit—other than
the benefit inherent in merely being on call. Although
we acknowledge that it may be difficult in some situa-
tions to determine the precise line between being on
duty and being on call, we conclude in the present case
that a reasonable jury could conclude only that, by the
time that Smith entered his vehicle, at the very latest,
he had embarked on the pursuit of purely personal
affairs, and nothing that occurred after that point and
before the accident brought him back under the control
of the fire company.
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’ compen-
sation law. See General Statutes § 31-275 (1) (A) (i)
(‘‘[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 fire-
fighter, 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 depart-
ment 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,
285 Conn. 348, 352, 939 A.2d 1174 (2008) (proof that
injury was sustained during performance of ‘‘fire duties’’
within meaning of § 7-314 [a] is predicate to filing work-
ers’ compensation claim pursuant to General Statutes
§ 7-314a [a]); Evanuska v. Danbury, supra, 357–58
(‘‘General Statutes §§ 7-314a and 7-314b are the only
procedural vehicles available for volunteer firefighters
to obtain workers’ compensation benefits for injuries
sustained while performing fire duties’’ [footnote
omitted]).6
We are not persuaded. Even if we were to assume
that Smith was acting within the scope of his employ-
ment for purposes of workers’ compensation law—an
issue on which we express no opinion—that would not
necessarily mean that he 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
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 Work-
ers’ 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 com-
pensation.’’ (Citation omitted; internal quotation marks
omitted.) Panaro v. Electrolux Corp., 208 Conn. 589,
598–99, 545 A.2d 1086 (1988). In contrast, the public
policy underlying the doctrine of respondeat superior
is that ‘‘substantial justice is best served by making a
master responsible for the injuries caused by his servant
acting in his service, when set to work by him to prose-
cute his private ends, with the expectation of deriving
from that work private benefit.’’ (Internal quotation
marks omitted.) Chase v. New Haven Waste Material
Corp., 111 Conn. 377, 380, 150 A. 107 (1930). Accord-
ingly, although there may be some overlap in the factors
to be considered in determining whether an employee
is acting within the scope of his employment for pur-
poses of workers’ compensation law—many of which
are established by statute—and the factors to be consid-
ered under the doctrine of respondeat superior, there
is no reason to expect that those factors will be identical
in all respects. We conclude, therefore, that, even if the
plaintiff were correct that Smith was acting within the
scope of his employment for purposes of workers’ com-
pensation law at the time of the accident because he
was in close proximity to the firehouse, where he had
been engaged in fire duties for purposes of § 7-314,
Smith was not acting within the scope of his employ-
ment for purposes of establishing vicarious liability
because he was engaged in the pursuit of purely per-
sonal affairs and was not acting for the benefit of or
under the control of the fire department when the acci-
dent occurred.
For the foregoing reasons, we conclude that a reason-
able 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 Appel-
late Court.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
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 ambu-
lance 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 . . . .’’
2
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.
3
Smith was a junior in high school when he joined the fire company as
a junior member.
4
In his appeal to the Appellate Court, the plaintiff claimed that the trial
court improperly granted the municipal defendants’ second motion to rear-
gue 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, 180 Conn.
App. 727. The Appellate Court concluded that the trial court improperly
granted the motion for summary judgment without holding a hearing, as
required by Practice Book § 11-12, but that the impropriety did not require
reversal because it was harmless. See id., 730. That portion of the Appellate
Court’s opinion, concerning the trial court’s failure to hold a hearing before
granting the second motion to reargue and for reconsideration, is not at
issue in this certified appeal because we limited certification to the issue
of whether the ruling was correct on the merits.
5
The plaintiff also relies on two Superior Court cases, Ambrosio v. AWAC
Services Co., Docket No. CV-XX-XXXXXXX-S, 2014 WL 2854076 (Conn. Super.
May 16, 2014), and Sheftic v. Marecki, Superior Court, judicial district of
Ansonia-Milford, Docket No. CV-56764 (October 22, 1999) (25 Conn. L. Rptr.
584). Both of these cases are distinguishable. In Ambrosio, the court relied
on the Appellate Court’s decision in Hodgate v. Ferraro, 123 Conn. App.
443, 462, 3 A.3d 92 (2010)—a workers’ compensation case—for the proposi-
tion that ‘‘[t]he going and coming rule (which precludes recovery for injuries
sustained in travel to and from the place of employment) has no application
to employees who have no fixed place of employment. . . . Where injuries
are incurred while an employee is traveling and it appears that it was the
employment which impelled the employee to make the trip, the risk of the
trip is a hazard of the employment.’’ (Internal quotation marks omitted.)
Ambrosio v. AWAC Services Co., supra, *2. Thus, even if we were to assume
that this principle of workers’ compensation law applies when determining
liability under the doctrine of respondeat superior, the case is distinguishable
because the plaintiff has neither claimed nor cited any authority for the
proposition that the firehouse was not Smith’s fixed place of employment.
In Sheftic, the court concluded that the so-called ‘‘ ‘going and coming rule’ ’’
that other jurisdictions have adopted in the context of vicarious liability
claims does not apply in cases in which the employee has become intoxicated
at a function hosted by the employer because, ‘‘[i]f the employer values
the ‘conviviality’ it believes alcohol adds to the functions it sponsors, the
employer should be expected to pay for any carnage on the highway resulting
from intoxication.’’ Sheftic v. Marecki, supra, 585–86. In the present case,
the fire company did not provide any alcohol to Smith.
6
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, answer-
ing 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, 285 Conn. 352.
7
Indeed, ‘‘courts have repeatedly noted the distinction between [workers’]
compensation law and the theory of vicarious liability.’’ Wayman v. Accor
North America, Inc., supra, 45 Kan. App. 2d 537, citing O’Shea v. Welch,
350 F.3d 1101, 1106 (10th Cir. 2003) (‘‘[w]e also agree that the public policies
behind [workers’] compensation and third party liability cases are differ-
ent’’), Garcia v. Estate of Arribas, 363 F. Supp. 2d 1309, 1318 (D. Kan. 2005)
(‘‘[workers’] compensation laws . . . are quite different, in many respects,
from the laws pertaining to the liability of employers to third parties’’),
Stokes v. Denver Newspaper Agency, LLP, 159 P.3d 691, 693–95 (Colo. App.
2006) (discussing differences between respondeat superior and workers’
compensation theories of recovery), cert. denied, Colorado Supreme Court,
Docket No. 06SC697 (April 23, 2007), and Salt Lake City Corp. v. Labor
Commission, 153 P.3d 179, 182 (Utah 2007) (‘‘[w]ith very different presump-
tions governing [workers’] compensation and negligence cases, it would not
be wise to hold that the rules governing scope of employment questions in
one area are wholly applicable to the other’’ [internal quotation marks
omitted]).
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., 189 Conn. 701, 705,
458 A.2d 678 (1983); see also id. (for purpose of construing scope of indemni-
fication clause in construction contract that was intended to protect general
contractor from potential liability as principal employer under workers’
compensation statutes by requiring reimbursement from subcontractors for
compensation payments for which it might be obligated, court considered
principles of workers’ compensation law); D’Addario v. American Automo-
bile Ins. Co., 142 Conn. 251, 254, 113 A.2d 361 (1955) (for purpose of constru-
ing scope of exclusion from insurance policy for any obligation for which
insured could be held liable under workers’ compensation law, court consid-
ered workers’ compensation principles). We are not persuaded. In Cirrito
and D’Addario, this court merely recognized that principles of workers’
compensation law governing the scope of employment are relevant when
construing a contract that was intended to incorporate those principles. The
cases do not support the proposition that this court is bound by principles
of workers’ compensation law whenever it is required to determine whether
activities were within the scope of employment for any other purpose.