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*********************************************** 
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 underlying 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 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. Mahoney, for the appellant (plaintiff).

Michael F. O’Connor, for the appellees (named defendant 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 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

§§ 7-3081 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 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 firehouse 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 firehouse, 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 vicariously 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 municipal defendants filed a motion to reargue and for articulation. 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 reargue 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 defendants’ 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 personal 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 company’s interests at the time of the accident and, therefore, was acting within the scope of his employment,

because there was evidence that would support a finding 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 emergency 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 submitted 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, however, 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 employment and in furtherance of his master’s business.’’ Pelletier 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 synonymous 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 consent 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 & Carrier, 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 principal.’’ 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 superior] 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 Authority, 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 employment 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 Blankenfeld 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 notwithstanding 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 contends 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 successfully 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. Jewish 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 contention that this case is distinguishable from Levitz

because Smith’s presence in close proximity to the firehouse 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 Stamford. 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 presented that part-time employees of the YMCA ‘‘considered 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 basketball 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 misguided 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 emergency situations.’’ Id., 528. On the day in question, Ristow returned to the motel early in the afternoon after

visiting out of state family members. See id. ‘‘After asking the manager on duty to stay so he could get something 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 judgment 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 business and on the employer for having engaged in the

enterprise.’’ (Internal quotation marks omitted.) Id.,

538. The court concluded that ‘‘[i]mposing vicarious liability 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 . . . excursion’’ 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 workrelated 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 liability 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 summoned 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); Johnson 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 activities were restricted while on call, whether employee’s

use of vehicle was authorized by employer and employee’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 committed 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 employment 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 performing 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 situations 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’ compensation 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 firefighter, 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 department 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 workers’ 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 employment 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 Workers’ 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 compensation.’’ (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 prosecute 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). Accordingly, 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 purposes of workers’ compensation law—many of which

are established by statute—and the factors to be considered 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’ compensation 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 employment for purposes of establishing vicarious liability

because he was engaged in the pursuit of purely personal affairs and was not acting for the benefit of or

under the control of the fire department when the accident occurred.

For the foregoing reasons, we conclude that a reasonable 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 Appellate 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 ambulance 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 reargue 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-12-6036172-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 proposition 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, answering 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 different’’), 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 presumptions 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 indemnification 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 Automobile Ins. Co., 142 Conn. 251, 254, 113 A.2d 361 (1955) (for purpose of construing scope of exclusion from insurance policy for any obligation for which

insured could be held liable under workers’ compensation law, court considered 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.