Karen Rodriguez v. Jeffrey Goodwin (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 115)

FACTS

On March 3, 2013, the plaintiff, Karen Rodriguez, commenced a three-count action against the defendants, Jeffery Goodwin and the city of New Haven.   Count one is directed against Goodwin for negligence, while counts two and three are directed against the city of New Haven for vicarious liability and negligent supervision, respectively.   The plaintiff alleges the following facts in the complaint.   Goodwin is a municipal employee with the city of New Haven as a police patrol officer.   On December 5, 2012, at approximately 3:30 p.m., the plaintiff was traveling in a southerly direction on Fulton Terrace at the intersection of Kendall Street in New Haven.   At the same time and place, Goodwin, who was acting in the course and scope of his duties as a New Haven police officer, was traveling in an easterly direction on Kendall Street when he caused his motor vehicle to collide into the plaintiff's vehicle.   As a result of the collision, the plaintiff suffered various injuries.

On May 31, 2013, the city of New Haven filed the instant motion for summary judgment, accompanied by a memorandum in support, Goodwin's responses to the plaintiff's request for admissions, an affidavit by the assistant chief for the department of police services, and a police accident report.¹  In response, the plaintiff filed an objection to the motion on June 20, 2013, accompanied by, inter alia, a memorandum in support, a police accident report, a workers' compensation claims notice, and the plaintiff's affidavit.   Subsequently, the defendant filed a reply to the plaintiff's opposition memorandum on August 1, 2013, accompanied by, inter alia, affidavits from a public liability investigator and an auditor from the New Haven department of finance.   This matter was heard at short calendar on September 23, 2013.   After the court requested additional authority to address whether workers' compensation coverage is indicative of Goodwin acting within the scope of his employment, the plaintiff filed a supplemental memorandum of law in support of its motion for summary judgment on September 26, 2013.

DISCUSSION

“Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  (Internal quotation marks omitted.)  Grenier v. Commissioner of Transportation, 306 Conn. 523, 534–35, 51 A.3d 367 (2012).  “The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ․ and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”  (Internal quotation marks omitted.)   Anastasia v. General Casualty Co. of Wisconsin, 307 Conn. 706, 711, 59 A.3d 207 (2013), quoting DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116, 49 A.3d 951 (2012).  “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  (Internal quotation marks omitted.)  Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010).  “A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Internal quotation marks omitted.)   Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).

The defendant moves for summary judgment on counts two and three for vicarious liability and negligent supervision, respectively, on the ground that Goodwin was not acting in the course and scope of his duties as a New Haven police officer at the time of the accident.   Specifically, the defendant asserts that Goodwin was driving home when his vehicle collided with the plaintiff's vehicle.   Thus, the defendant contends that it cannot be held vicariously liable or be held liable for negligent supervision, since Goodwin was off duty at the time of the accident.   The plaintiff argues, inter alia, that material issues of fact exist as to (1) the actual time that Goodwin's vehicle hit the plaintiff's vehicle and (2) whether Goodwin was working in the course and scope of his duties as a New Haven police officer at the time of the accident.

“[T]he theory of respondeat superior attaches liability to a principal merely because the agent committed a tort while acting within the scope of his employment.   It refers to those acts which are so closely connected with what the servant is employed to do, and so fairly and reasonably incidental to it, that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of the employment.”  (Citation omitted, internal quotation marks omitted.)  Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 505, 656 A.2d 1009 (1995);  see also Colon v. Board of Education, 60 Conn.App. 178, 188 n.4, 758 A.2d 900 (2000) (indicating respondeat superior is synonymous with vicarious liability).  “Vicarious liability is based on a relationship between the parties, irrespective of participation, either by act or omission, of the one vicariously liable, under which it has been determined as a matter of policy that one person should be liable for the act of the other.   Its true basis is largely one of public or social policy under which it has been determined that, irrespective of fault, a party should be held to respond for the acts of another.”  (Internal quotation marks omitted.)   Alvarez v. New Haven Register, 249 Conn. 709, 720, 735 A.2d 306 (1999).

“A master is liable only for those torts of his servant which are done with a view of furthering his master's business within the field of this employment—for those which have for their purpose the execution of the master's orders or the doing of the work assigned to him to do.”  (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).   Thus, “[for the purposes of vicarious liability ․ the issue is not where the defendant was at the time of the accident, but rather whether [the employee] was in furtherance of the master's business at the time.”  (Internal quotation marks omitted.)   Rubenstein v. Oxford Health Plans, Superior Court, judicial district of Fairfield, Docket No. CV–00–0370404–S (January 18, 2002, Gallagher, J.) (31 Conn. L. Rptr. 279, 281).

In the present case, the defendant's evidence indicates that Goodwin was off duty at the time of the accident and was not previously assigned to work at the location of the accident.   Specifically, in Goodwin's responses to the plaintiff's request for admissions, Goodwin denies that he was working as a New Haven police officer at 3:30 p.m. on December 5, 2012.²  Def.'s Ex. 1. He also denies, in the request for admissions, that he operated his vehicle during the course and scope of his employment for the city of New Haven.   Def.'s Ex. 1. Additionally, the defendant submits an affidavit from the assistant chief of police services that states Goodwin was performing extra duty work for Walsh PCL as a police officer on December 5, 2012, from 8:45 a.m. to 3:30 p.m. Def.'s Ex. 2. Goodwin was operating his own personal vehicle at the time of the accident and the department of police services does not allow him to use his own personal vehicle in the course and scope of his employment.   Def.'s Ex. 2. Furthermore, Goodwin was not compensated for his travel time or expenses to and from his extra duty work.   Def.'s Ex. 2. Moreover, the department of police services for the city of New Haven does not and has never chosen the means of transportation that Goodwin uses to travel to and from work.   Def.'s Ex. 2. The defendant also submits an affidavit from an auditor of the city's department of finance stating that Goodwin was assigned to a private duty job on the date of the accident and that although the city of New Haven pays the officers through its payroll system, the city is reimbursed by the private duty vendor.³  Def.'s Ex. 5.

Based on this evidence, the defendant has met its initial burden of establishing the absence of a genuine issue of material fact that Goodwin was not in the course of his duties as a police officer at the time of the accident.   Thus, the burden shifts to the plaintiff to present evidence that demonstrates the existence of some disputed factual issue.   See Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).   The plaintiff attempts to demonstrate that material issues of fact remain by referring to the police report written at 3:30 p.m., which suggests that the accident may have occurred prior to the end of Goodwin's shift.⁴  Pl.'s Ex. A. Additionally, the plaintiff submits a workers' compensation claim letter for Goodwin's injuries as a result of the accident.   Pl.'s Ex. B. The letter indicates, and the defendant's counsel acknowledged during oral argument at short calendar, that Goodwin may be covered for workers' compensation.

“It is an axiom of [workers'] compensation law that awards are determined by a two-part test.   The [claimant] has the burden of proving that the injury claimed [1] arose out of the employment and [2] occurred in the course of the employment.”  (Internal quotation marks omitted.)  Labadie v. Norwalk Rehabilitation Services, Inc., 274 Conn. 219, 227, 875 A.2d 485 (2005).  “An injury sustained on a public highway while going to or from work is ordinarily not compensable.   A principal reason for this rule is that employment ordinarily does not commence until the claimant has reached the employer's premises, and consequently an injury sustained prior to that time would ordinarily not occur in the course of the employment so as to be compensable.”  (Internal quotation marks omitted.)  Id., 228–29.   There is, however, an exception to this general rule.  General Statutes § 31–275(1)(A)(i) provides:  “For 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 ․” Thus, in the context of the Workers' Compensation Act, police and firefighters are exempt from the genial “coming and going” rule and are compensated for injuries that arise while coming and going to or from work.  Diluciano v. State Military Dept., 60 Conn.App. 707, 712, 760 A.2d 1019 (2000), cert. denied, 255 Conn. 926, 767 A.2d 98 (2001).

Nevertheless, the police and firefighter exception to the Workers' Compensation Act does not modify the common-law rule for vicarious liability.   See Rubenstein v. Oxford Health Plans, supra, 31 Conn. L. Rptr. 280.   The police and firefighter rule is a statutory exemption that only applies to the Workers' Compensation Act. See General Statutes § 31–275;  see also State v. Courchesne, 296 Conn. 622, 669, 98 A.2d 1 (2010) (“[n]o statute is to be construed as altering the common law, farther than its words import [and a statute] is not to be construed as making any innovation [on] the common law which it does not fairly express”).   Based on this court's extensive research, no court in Connecticut has extended this exception outside of the workers' compensation context.   In fact, the court in Rubenstein v. Oxford Health Plans, supra, 31 Conn. L. Rptr. 280, explicitly held that workers' compensation and vicarious liability “entail different tests and are distinguishable at common law.”   In Rubenstein, an employee of Oxford Health Plans (Oxford) was leaving her employer's parking lot to drive home from work when her car collided with the plaintiff's vehicle.  Id., 279.   The plaintiff sought damages from Oxford on a respondeat superior theory of liability and urged the court to look at workers' compensation cases to examine the employment relationship.  Id., 279–80.   In granting the defendant's motion for summary judgment, the court held that “[a]n employee may receive workers' compensation benefits for an accident that occurs when the employee is leaving work.   For the purposes of vicarious liability, however, the issue is not where the defendant was at the time of the accident, but rather whether she was in furtherance of the master's business at the time.”  (Internal quotation marks omitted.)  Id., 281.   The court further explained that “the test for vicarious liability does not so much involve where the employee was located when the injury occurred, as much as it involves whether the employee was furthering the employer's business at the time of the injury.   A master is liable only for those torts of his servant which are done with a view of furthering his master's business within the field of this employment—for those which have for their purpose the execution of the master's orders or the doing of the work assigned to him to do.”  (Internal quotation marks omitted.)   Id., 280, quoting Brown v. Housing Authority, supra, 23 Conn.App. 628.

“The police and firefighter exception [to the coming and going rule for workers' compensation] is presumably based on the emergency on-call nature of those professions and the urgency with which police and firefighters may be summoned to duty.”  Diluciano v. State Military Dept., supra, 60 Conn.App. 712.   Thus, for the purpose of workers' compensation, where an off-duty officer is traveling at the time of an accident is relevant in determining eligibility for compensation.   In contrast, the location of an off-duty officer is immaterial in the context of vicarious liability, where the pertinent question is whether an employee was acting within the scope of employment and in furtherance of the employer at the time of the accident.   Therefore, the fact that Goodwin was driving home from work at the time of the accident is extraneous to the question of whether the defendant is vicariously liable to the plaintiff.

The mere fact that Goodwin may be covered by workers' compensation does not, by itself, present an issue of fact as to whether he was still acting within the scope of his employment at the time of the accident.   Instead, “[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.”  Harp v. King, 266 Conn. 747, 782–83, 835 A.2d 953 (2003).   In the present case, even though Goodwin is a police officer, driving home after a shift ends is clearly outside the scope of his employment.   More particularly, (1) Goodwin's accident did not occur within his scheduled shift or location where he was assigned to work;  (2) driving while off duty is not conduct that Goodwin is employed to perform;  and (3) driving home is not motivated by any purpose to serve the New Haven police department.   Accordingly, like the holding in Rubenstein, the possibility of being covered by workers' compensation does not necessarily mean that Goodwin was acting in furtherance of the New Haven police department.

The plaintiff argues that a genuine issue of material fact exists with respect to whether Goodwin was working at the time of the accident because the accident report was written at the same time that his shift was scheduled to conclude.   Thus, the plaintiff argues, an inference could be drawn that the accident may have occurred prior to the end of his shift.   This evidence, however, would only establish that Goodwin was scheduled to conclude his shift at 3:30 p.m.;   it does not establish whether he actually completed his shift at that time.   In other words, the question is not when Goodwin was scheduled to work, but when was he actually working.   Thus, regardless of the fact that the accident may have occurred when Goodwin was still scheduled to be working, the defendant has submitted ample evidence that quite clearly demonstrates Goodwin was not acting within the course and scope of his employment at the time of the accident.   Specifically, Goodwin denies that he was working as a New Haven police officer at 3:30 p.m. on December 5, 2012.   Def.'s Ex. 1. He also denies that he operated his vehicle during the course and scope of his employment for the city of New Haven.   Def.'s Ex. 1. Goodwin was operating his own personal vehicle at the time of the accident and the department of police services does not allow him to use his own personal vehicle in the course and scope of his employment.   Def.'s Ex. 2. Furthermore, Goodwin was not compensated for his travel time or expenses to and from his extra work duty.   Def.'s Ex. 2. Additionally, although Goodwin was assigned to work at 342 Chapel Street;  Def's Ex. 5;  the accident occurred at the intersection of Fulton Terrace and Kendall Street, which provides further evidence that Goodwin was not acting in furtherance of the New Haven police department at the time of the accident.

“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).   As previously discussed, the mere fact that Goodwin is a police officer and may be able to collect workers' compensation does not present a material issue of fact as to whether he was acting in furtherance of the New Haven police department at the time of the accident.   Moreover, the facts clearly show that Goodwin was off duty and traveling home when the accident occurred.   It is difficult to surmise in this case, any rational reason that Goodwin's going home while off duty could amount to furthering the business of the New Haven police department.   Thus, the instant matter presents a question of law because Goodwin's accident was so clearly outside the scope and course of his employment.   Accordingly, the defendant's motion for summary judgment with respect to the vicarious liability claim is granted because the plaintiff has failed to present evidence to demonstrate the existence of material issues of fact—evidence that Goodwin was acting in furtherance of the police department's business at the time of the accident.

“Under Connecticut law, an employer may be held liable for the negligent supervision of employees ․ [I]n [a] negligent supervision action, [the] plaintiff must plead and prove that she suffered an injury due to the defendant's failure to supervise an employee whom the defendant had [a] duty to supervise.”  (Citations omitted;  internal quotation marks omitted.)  Brooks v. Sweeney, 299 Conn. 196, 207–08 n.12, 9 A.3d 347 (2010).   Generally, “an employer has no duty to control the conduct of an off-duty employee except when the complained-of conduct occurs on the employer's premises, utilizes a chattel of the employer's, and the employer knows or has reason to know that he can control the employee and recognizes the necessity of so doing.”  (Emphasis omitted;  internal quotation marks omitted.)  Cannizzaro v. Marinyak, 139 Conn.App. 722, 729, 57 A.3d 830 (2012), cert. granted, 308 Conn. 902, 60 A.3d 286 (2013).   As previously discussed, there is no material issues of fact that Goodwin was not acting within the scope and course of his employment at the time of the incident.   Therefore, the defendant's motion for summary judgment with respect to the negligent supervision count is granted because (1) the defendant has no duty to supervise Goodwin, who was off-duty at the time of the accident;  and (2) the exceptions to the rule that employers have no duty to control the conduct of an off-duty employee do not apply in the present case.

CONCLUSION

For the foregoing reasons, the defendant's motion for summary judgment is granted.

Wilson, J.

FOOTNOTES

FN1. For the sake of clarity, the city of New Haven will, hereafter, be referred to as “the defendant” in this memorandum..  FN1. For the sake of clarity, the city of New Haven will, hereafter, be referred to as “the defendant” in this memorandum.

FN2. “The request for admissions is an instrument of discovery.   Requests for admissions are governed by Practice Book §§ 13–22 through 13–25 ․ A party's response to a request for admissions is binding as a judicial admission unless the judicial authority permits withdrawal or amendment.”  (Citations omitted.)  East Haven Builders Supply, Inc. v. Fanton, 80 Conn.App. 734, 744, 837 A.2d 866 (2004)..  FN2. “The request for admissions is an instrument of discovery.   Requests for admissions are governed by Practice Book §§ 13–22 through 13–25 ․ A party's response to a request for admissions is binding as a judicial admission unless the judicial authority permits withdrawal or amendment.”  (Citations omitted.)  East Haven Builders Supply, Inc. v. Fanton, 80 Conn.App. 734, 744, 837 A.2d 866 (2004).

FN3. It is immaterial whether the city is ultimately reimbursed by a private duty vendor because the city remains the officer's direct employer, regardless of the location or duty that is assigned.   Thus, Goodwin was an employee of the city on the date of the accident despite the fact that he was assigned to work for Walsh PCL. The issue rather is, whether at the time of the accident Goodwin was acting within the course and scope of his duties as a New Haven Police Officer..  FN3. It is immaterial whether the city is ultimately reimbursed by a private duty vendor because the city remains the officer's direct employer, regardless of the location or duty that is assigned.   Thus, Goodwin was an employee of the city on the date of the accident despite the fact that he was assigned to work for Walsh PCL. The issue rather is, whether at the time of the accident Goodwin was acting within the course and scope of his duties as a New Haven Police Officer.

FN4. Goodwin's extra duty shift on December 5, 2012 was scheduled from 8:45 a.m. to 3:30 p.m. Pl.'s Ex. 2..  FN4. Goodwin's extra duty shift on December 5, 2012 was scheduled from 8:45 a.m. to 3:30 p.m. Pl.'s Ex. 2.

Wilson, Robin L., J.