MICHAEL A. FIANO
v.
OLD SAYBROOK FIRECOMPANY NO. 1, INC., ET AL.
Argued
February 20, 2019
Procedural
History
Action
to recover damages for personal injuries sustained 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 defendant
et al.).
Robinson, C. J., and McDonald, D'Auria, Mullins, Kahn and
Vertefeuille, Js.
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
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 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., 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 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
mem- bers to spend time at the firehouse, the fire company
provided televisions, computers, a weight room, laundry
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 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.''
‘‘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
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 ...