180 Conn. App. 717
Conn. App. Ct.2018Background
- On Oct. 26, 2013 James Smith (a junior volunteer firefighter) left Old Saybrook Fire Company property in his personal car to go home to change for a yearbook photo; as he entered the public road his car struck plaintiff Michael Fiano’s motorcycle, seriously injuring Fiano.
- Fiano sued Smith, Old Saybrook Fire Company No. 1, Inc. (fire company), and the Town, alleging Smith’s negligence and vicarious liability against the fire company and town under respondeat superior and municipal liability statutes.
- Defendants moved for summary judgment on vicarious-liability counts, arguing Smith was on a personal errand and not acting within the scope of any agency or duty; plaintiff opposed, citing facts about Smith’s presence at the station, his use of his personal vehicle for fire duties, and workers’ compensation statutes.
- Trial court initially denied summary judgment, then (after an untimely motion to reargue by the fire company and without a new hearing) granted reconsideration and entered summary judgment for the fire company and town.
- On appeal plaintiff challenged (1) the trial court’s procedural handling of the motion to reargue/reconsider (timeliness and lack of hearing) and (2) the legal conclusion that no genuine issue existed that Smith was acting within the scope of employment when the accident occurred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Procedural propriety of granting untimely motion to reargue/reconsider | Fire company’s late reargument was improper and repeated prior arguments; court should not have granted it without a hearing | Court had already heard full briefing and oral argument; it may reconsider prior rulings and had jurisdiction | Court abused discretion by granting untimely reargument without holding a hearing, but error was harmless and not reversible here |
| Requirement of a hearing under Practice Book §11-12 before granting reconsideration | Once reargument granted, a hearing was required; plaintiff was entitled to respond | Plaintiff had previously briefed and argued the same issues; no new arguments or facts were presented | Hearing should have been held, but plaintiff failed to show prejudice because he had ample opportunity earlier and offered nothing additional he would have presented |
| Whether Smith was acting within scope of employment (respondeat superior) when accident occurred | Smith’s presence at station, use of personal vehicle for fire duties, and retention of gear created factual issue of agency and benefit to employer | Smith left to attend to personal affairs (yearbook photo); departure was not for defendants’ benefit and thus outside scope | Summary judgment affirmed: Smith was on personal errand (a “frolic”), not furthering employer’s business when collision occurred |
| Relevance of workers’ compensation statutes to vicarious liability | Plaintiff urged §31-275 and volunteer firefighter statutes to show firefighters are “on duty” going to/from station and thus within scope | Statutes distinguish professional vs volunteer firefighters; workers’ comp provisions do not define scope for respondeat superior | Workers’ compensation rules for travel do not control vicarious-liability scope for volunteers; statutes do not support plaintiff’s theory |
Key Cases Cited
- Levitz v. Jewish Home for the Aged, Inc., 156 Conn. 193 (1968) (employer not vicariously liable when employee left work on personal errands and negligently caused injury on employer premises)
- Leary v. Johnson, 159 Conn. 101 (1970) (agency question can be supported by multiple inferences where facts show service furthered principal’s interests)
- Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120 (1983) (agency defined by consent to act on principal’s behalf and subject to principal’s control)
- Mitchell v. Resto, 157 Conn. 258 (1968) (respondeat superior requires that agent’s acts further principal’s affairs)
- McNamara v. Tournament Players Club of Connecticut, Inc., 270 Conn. 179 (2004) (trial court may decide dispositive legal questions as case management authority near trial)
- United States v. Morgan, 307 U.S. 183 (1939) (courts have inherent power to revisit prior decisions to correct mistakes)