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

          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 ...