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Fiano v. Old Saybrook Fire Co. No. 1, Inc.

Court of Appeals of Connecticut

April 10, 2018

MICHAEL A. FIANO
v.
OLD SAYBROOK FIRECOMPANY NO. 1, INC., ET AL.

          Argued November 14, 2017

         Procedural History

         Action to recover damages for the defendants' negligence brought to the Superior Court in the judicial district of Middlesex, where the court, Aurigemma, J., denied the motion for partial summary judgment filed by the named defendant et al.; thereafter, the court granted the named defendant's motion to reargue and for reconsideration; subsequently, the court granted the motion for partial summary judgment filed by the named defendant et al. and rendered judgment thereon, from which the plaintiff appealed to this court. Affirmed.

          James J. Healy, with whom was Douglas P. Mahoney, for the appellant (plaintiff).

          Michael O'Connor, for the appellees (named defendant et al.).

          Keller, Bright and Mihalakos, Js.

          OPINION

          KELLER, J.

         In this negligence action arising from a motor vehicle accident between the plaintiff, Michael A. Fiano, and the defendant James M. Smith, the plaintiff appeals from the summary judgment rendered by the trial court in favor of the defendants Old Saybrook Fire Company No. 1, Inc. (fire company), and the town of Old Saybrook (town).[1] The plaintiff first claims that the court erred by granting the fire company's motion to reargue/reconsider its denial of a motion for summary judgment filed by the defendants. Second, the plaintiff claims that the court erred by rendering summary judgment for the defendants on the plaintiff's vicarious liability claims. We affirm the judgment of the trial court.

         The alleged facts and procedural history, viewed in the light most favorable to the nonmoving plaintiff, reveal the following. The plaintiff alleged that on October 26, 2013, he operated a motorcycle, travelling south on Main Street in Old Saybrook, Connecticut. Concurrently, ‘‘Smith was the operator of a motor vehicle which was stopped on private property owned by the [fire company] . . . facing in a westerly direction on a driveway on the aforementioned property. . . . As the plaintiff's motorcycle . . . [approached] the intersection of Main Street and Old Boston Post . . . Smith, while stopped on the property of . . . [the fire company], negligently made a decision to move his vehicle from a stopped position onto the Old Boston Post Road, striking the motorcycle being operated by the plaintiff . . . .'' The plaintiff, as a result of the accident, ‘‘suffered injuries of a serious, painful and permanent nature in that he sustained a head wound; a left acetabular fracture; a left femoral head dislocation; open left distal femur and tibia fractures with open bone loss; an injury to his left leg, which has required multiple surgeries and skin grafting procedures; rib fractures; and a general shock to his nervous system, all of which have permanently reduced his ability to pursue and enjoy life's activities.''

         On July 22, 2014, the plaintiff brought this negligence action against Smith and the defendants. The complaint included three counts. Count one asserted that Smith was negligent by failing ‘‘to keep a proper lookout . . . [failing] to keep his vehicle under proper control . . . [and failing] to properly brake his vehicle . . . .'' He was also allegedly negligent because, while stopped on the fire company's property, he decided ‘‘to move his vehicle and not yield the right-of-way to vehicles approaching on Main Street in violation of . . . General Statutes § 14-247[2] . . . he negligently made a decision to start his vehicle when it could not be done so with reasonable safety without interfering with traffic, in violation of . . . General Statutes § 14-243[3] . . . and . . . he . . . failed to yield the right of way to vehicles approaching from his right at an intersection in violation of . . . General Statutes § 14-245.''[4] (Footnotes added.)

         Counts two and three asserted, in a conclusory manner, that the defendants were liable for Smith's negligence. In count two, the plaintiff alleged that the defendants were liable for his injuries pursuant to General Statutes § 7-308, [5] which governs a municipality's liability for a volunteer firefighter's negligence, and General Statutes § 7-465, [6] which addresses the liability of a municipality for damages caused by an employee, other than a firefighter covered under the provisions of § 7-308, acting in the course of duty. In count three, the plaintiff alleged that the defendants were liable pursuant to General Statutes § 52-557n, [7] which governs when a political subdivision is liable for the negligence of its agents.

         On July 14, 2015, the defendants filed a motion for summary judgment as to counts two and three of the plaintiff's complaint. In their memorandum of law in support of this motion, the defendants argued that, on the basis of the plaintiff's alleged facts, they could not be held vicariously liable. The defendants contended that ‘‘Smith was [seventeen] years old and a senior in high school. . . . He was a junior member of the [fire company]. . . . However, on the day of . . . [the] accident, [Smith] was not requested to come to the firehouse. . . . Nor was he at the firehouse that day for fire [company] affairs. . . . Upon leaving the fire-house, his intention was to go home and get changed to have his picture taken for the senior yearbook. . . . He makes no claim that in leaving to make his preparation for having his picture taken that he was providing a benefit to the [defendants]. . . . Importantly, [Smith stated] that as he was leaving that day he was not acting in furtherance of the [defendants'] affairs.''[8] (Citations omitted; emphasis omitted.) As a result, when the accident occurred, Smith was ‘‘not acting within the scope of his employment or performing any service to the [defendants] at the time of the accident. Accordingly, there is no basis for vicarious liability as against the moving defendants.''

         The plaintiff filed an objection to the defendants' motion for summary judgment on January 21, 2016. In support of his objection to the defendants' motion for summary judgment, the plaintiff asserted that there was a genuine issue of material fact as to whether Smith was acting as the defendants' ‘‘agent'' and ‘‘in the scope of his employment'' at the time of the accident and, thus, the defendants could be found vicariously liable. The plaintiff focused on three factual allegations: first, that Smith was at the firehouse on the day of the accident to monitor for emergency calls on the radio; second, that he used his personal vehicle, which was involved in the accident, to carry out his duties as a junior firefighter; and third, that Smith admitted to being the defendants' agent. In support, the plaintiff cited cases discussing the principles of vicarious liability, especially highlighting that whether an agency relationship exists is generally a question of fact, and referred to portions of Smith's deposition that purportedly raised a genuine issue of material fact as to whether Smith was acting within the scope of his employment at the time of the accident. The plaintiff also argued that pursuant to General Statutes § 31-275, [9] a provision of the Workers' Compensation Act, a firefighter is considered on duty for the purpose of workers' compensation claims while traveling to and from work and, therefore, Smith was acting within the scope of his employment as a volunteer firefighter at the time of the accident.

         The defendants filed a reply to the plaintiff's objection to the motion for summary judgment on February 5, 2016. In that reply, the defendants reiterated that Smith left the firehouse on the day of the accident for ‘‘exclusively personal'' reasons. (Emphasis omitted.) The defendants also argued that § 31-275 applies to paid firefighters, not volunteers. The defendants also asserted that the plaintiff mischaracterized the legal relevance of some of the statements Smith and others made during their deposition. In addition, the defendants argued that Smith admitting that he was an agent for the defendants at the time of the accident cannot establish a genuine issue of material fact as to whether, as a matter of law, an agency relationship existed at the time of the accident.

         On February 9, 2016, the plaintiff filed a response to the defendants' reply memorandum. In this filing, the plaintiff reasserted that, pursuant to § 31-275, a firefighter is considered to be acting in the course of employment while travelling home and that the purpose of General Statutes § 7-314a is to ensure that the Workers' Compensation Act covers volunteer firefighters. The defendants filed a response to the plaintiff's surreply on February 10, 2016. In this response, the defendants again argued that the plaintiff's arguments on the basis of § 31-275 were meritless.

         On February 8, 2016, the court, Aurigemma, J., heard oral argument on the defendants' motion for summary judgment. The court summarily denied the defendants' motion on February 18, 2016, merely stating that ‘‘[m]aterial issues of fact exist.'' In response, on March 4, 2016, the defendants filed a timely motion to reargue/ for articulation on the motion for summary judgment pursuant to Practice Book § 11-12, [10] which the court summarily denied on March 7, 2016.[11] The case was scheduled to begin jury selection on June 1, 2016. On May 31, 2016, the fire company filed an untimely motion to reargue/reconsider the defendants' motion for summary judgment. The plaintiff received notice of the fire company's motion and quickly filed an objection, but the court already had granted the fire company's motion, reconsidered, and granted the defendants' motion for summary judgment within two hours of the time of the filing of the motion to reargue/reconsider. On June 1, 2016, [12] the court apologized for its quick ruling in granting the motion for summary judgment for both defendants without hearing further arguments on the merits of the defendants' motion for summary judgment.

         Subsequently, on June 1, 2016, the court issued the following written decision granting the defendants' motion for summary judgment: ‘‘There is no evidence that . . . [Smith] was acting for the benefit of the [defendants] at the time of the accident. The only evidence is that he was going home to get changed to have his picture taken for the yearbook at the time of the accident and was providing no benefit to the . . . [defendants]. The case is analogous to Levitz v. Jewish Home for the Aged, Inc., 156 Conn. 193');">156 Conn. 193, [239 A.2d 490] (1968). A reasonable jury could not find that . . . [Smith] was acting within the scope of his employment at the time of the accident. Whether he was acting [within] the scope of his employment for the purpose of the workers' compensation statutes, i.e., under Labadie v. Norwalk Rehabilitation Services, [Inc.], 274 Conn. 219');">274 Conn. 219, [875 A.2d 485] (2005), cited by the plaintiff, is not relevant to the determination at issue in [the present] case.'' This appeal followed.

         I

         The plaintiff claims the court erred by granting the fire company's motion to reargue/reconsider the defendants' motion for summary judgment. The plaintiff argues that granting this motion was procedurally improper because it was untimely and did not present new arguments. Moreover, the plaintiff emphasizes that once the court decided to permit reargument, it should have held a hearing pursuant to Practice Book § 11-12 prior to reconsidering its earlier ruling and granting the defendants' motion for summary judgment. The defendants argue, in part, that the court's decision should not be overturned because the court already had held argument on the merits of summary judgment and, further, the court possessed the authority to reconsider its decision on summary judgment on its own accord. Although the plaintiff raises valid concerns, in the circumstances presented in the present case, we agree with the defendants.

         We begin by summarizing the parties' arguments that were presented to the court both in support of and in objection to the motions to reargue. Following discovery, the defendants moved for summary judgment on the basis that they could not be vicariously liable because Smith was not acting within the scope of his employment or official duties at the time of the accident. The court denied the motion on February 18, 2016. In response, on March 4, 2016, the defendants timely filed a motion to reargue/for articulation concerning the denial of the motion for summary judgment pursuant to Practice Book § 11-12. In support of their motion to reargue/for articulation, the defendants reiterated the same arguments presented in their motion for summary judgment. The defendants did not raise new factual allegations or legal arguments in this motion that they had not already presented to the court. The defendants stated that Smith was not ‘‘on duty or otherwise acting in his capacity as a junior member of the [fire company] when he was present at the [firehouse] on the day [of the accident]. . . . Smith . . . was not requested to come to the firehouse, and, furthermore, was not at the firehouse that day for [the defendants'] affairs. . . . Accordingly, the defendants respectfully submit [that] there is no basis for a determination that [Smith] was acting as an agent of the [fire company] . . . on the [day] of the accident . . . .'' (Citation omitted; emphasis omitted.) The defendants also pointed out that the plaintiff's arguments pertaining to § 31-275 were misguided because § 31-275 applies only when a firefighter is returning home ‘‘after duty, which . . . Smith was not, '' and applies to professional, not volunteer, firefighters. (Emphasis omitted; internal quotation marks omitted.) The defendants argued that, instead, General Statutes § 7-314b applies to volunteer firefighters. Section 7-314b (a) provides that volunteer firefighters may be eligible for workers' compensation if they are injured while performing ‘‘fire duties, '' as defined by § 7-314b (b). The defendants contended that the term ‘‘fire duties'' does not include the plaintiff's actions at the time of the accident. The defendants also requested that the court articulate its reasons for denying their motion for summary judgment if the court would not grant reargument. The court denied this motion.[13]

         Just before jury selection was scheduled to begin, the fire company filed a motion to reargue/reconsider on May 31, 2016. In this motion, the fire company maintained the position that the defendants could not be held vicariously liable as a matter of law. The fire company emphasized that Smith was ‘‘(1) a junior volunteer firefighter; (2) visiting his then girlfriend at the [firehouse]; (3) leaving the [firehouse] for the purpose of taking prom photographs; (4) operating a private, family owned vehicle that did not have its emergency lights on; and (5) not driving to or from an emergency call when the subject collision occurred on a public roadway.'' The fire company did not raise factual allegations or legal arguments in this motion to reargue/reconsider that were not previously presented in support of the defendants' motion for summary judgment. In response, the plaintiff objected on the grounds that this motion was untimely, the court already had denied the defendants' motion to reargue/for articulation, and the fire company filed the motion as a dilatory tactic on the day before jury selection was to begin.[14] The court granted the fire company's motion for reargument within two hours of its filing and then, without holding a hearing, granted the defendants' July 14, 2015 motion for summary judgment.

         We review a trial court's decision to grant a motion to reargue pursuant to the abuse of discretion standard. Weiss v.Smulders, 313 Conn. 227, 261, 96 A.3d 1175 (2014). ‘‘In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court's ruling. . . . Reversal is required only [when] an abuse of discretion is manifest or [when] injustice appears to have been done.'' (Internal quotation marks omitted.) Patino v.Birken Mfg. Co., 304 Conn. 679, 698, 41 A.3d 1013 (2012). ‘‘As with any discretionary action of the trial court, appellate review requires every reasonable presumption in ...


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