Opinion
No. 564596
July 17, 2006
MEMORANDUM OF DECISION
By a three-count complaint dated December 12, 2002, the plaintiffs, Richard and Nancy Kirchhoff commenced the present action sounding in negligence, recklessness and loss of consortium against the defendant, Thomas P. Racicot. The court will recite the underlying facts as previously articulated in this court's memorandum of decision of December 23, 2004. See Kirchhoff v. Racicot, Superior Court, judicial district of New London, Docket No. CV 03 0564596 (December 23, 2004, Hurley, J.T.R.) (adjudicating the defendant's motion to dismiss).
The present case has been consolidated with a parallel action entitled Kirchhoff v. Quincy Mutual Fire Ins. Co., Superior Court, judicial district of New London, Docket No. CV 04 0568850.
On December 14, 2000, "the plaintiff [, Richard Kirchhoff, [a] fire chief, responded to an accident which took place on Gallows Lane in the town of Waterford, Connecticut . . . Thereafter, the defendant . . . in his capacity as a volunteer firefighter with the Cohanzie Fire Company in the town of Waterford, also responded to the accident on Gallows Lane . . . As the defendant traveled eastbound on Gallows Lane in a fire district vehicle, he entered the opposite northbound travel lane and struck the plaintiff's oncoming vehicle.
"[T]he plaintiffs . . . filed a three-count complaint alleging in the first count that the defendant negligently and carelessly lost control of his vehicle. The plaintiffs further allege in the second count that the defendant acted deliberately and recklessly in the operation of a motor vehicle by traveling at a high rate of speed on a roadway that was known to be icy and dangerous. Lastly, the plaintiffs allege damages in the third count for loss of consortium suffered by the injured plaintiff's wife, Nancy Kirchhoff. The plaintiffs claim monetary damages, as well as double and treble damages pursuant to Connecticut General Statutes § 14-295, for personal injuries sustained by the plaintiff, Richard Kirchhoff, as a result of the defendant's alleged negligence and recklessness." (Citations omitted.) CT Page 13043 Kirchhoff v. Racicot, supra, Superior Court, Docket No. CV 03 0564596.
On January 10, 2006, the defendant filed a motion for summary judgment, with accompanying memorandum of law, on the grounds that there are no genuine issues of material fact and he is entitled to judgment as a matter of law. Specifically, the defendant moves on the grounds that: (1) the plaintiffs' claims are barred by General Statutes § 7-308; (2) the recklessness claim fails because there is no evidence demonstrating that the defendant intended to cause injury to the plaintiff, and (3) the claim for loss of consortium, derivative in nature, must fail with the other claims. The defendant submits as evidence: (1) an affidavit by Bruce Miller, the fire administrator of the town of Waterford; (2) the defendant's affidavit; and (3) case law.
On March 17, 2006, the plaintiffs filed a memorandum of law in opposition to the defendant's motion for summary judgment. No affidavits or other documentary evidence was submitted by the plaintiffs with their opposition. This motion is presently before the court.
DISCUSSION
"[S]ummary judgment shall be rendered forthwith if the 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. A material fact is a fact that will make a difference in the result of the case . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all 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 . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. The test is whether a party would be entitled to a directed verdict on the same facts . . . The facts at issue [in the context of summary judgment] are those alleged in the pleadings." (Citation omitted; internal quotation marks omitted.) Arnone v. Connecticut Light Power Co., 90 Conn.App. 188, 193, 878 A.2d 347 (2005).
A General Statutes § 7-308 1 Negligence Claim
In his motion for summary judgment, the defendant argues that the plaintiffs' negligence and recklessness claims contained in counts one and two of the complaint, respectively, are barred by General Statutes § 7-308. The defendant contends that because the plaintiff, Richard Kirchhoff (Kirchhoff) and the defendant were both acting in their official capacities as volunteer firefighters who were responding to a call when the vehicle collision occurred, § 7-308 is implicated, thereby restricting the plaintiffs' remedies and causes of action.
In response, the plaintiffs argue that the plain meaning of § 7-308 suggests that said section does not apply to the facts in the present action. The plaintiffs contend that § 7-308 was designed to protect the town from indemnifying any action brought by one fireman against a fellow fireman. The plaintiffs contend that pursuant to § 7-308, workers' compensation may be the only remedy available to the plaintiffs, as to any claim that relates to the town, but not for a direct action against the defendant. The plaintiffs argue that they have not availed themselves of the provisions of § 7-308, but merely assert claims of common-law negligence and recklessness against the defendant which fall outside the purview of § 7-308, thus their remedies do not rest solely within workers' compensation. Further, the plaintiffs argue that nothing in § 7-308 prevents them from bringing common-law actions against the defendant, individually. Finally, the plaintiffs assert that because they have not brought this action pursuant to § 7-308, General Statutes § 31-293a specifically allows the plaintiffs to bring suit against the defendant sounding in common-law negligence and recklessness.
General Statutes § 7-308(b) provides in relevant part: "Each municipality of this state shall pay on behalf of any paid or volunteer fireman . . . of such municipality all sums which such fireman . . . becomes obligated to pay by reason of liability imposed upon such fireman . . . by law for damages to person or property, if the fireman . . ., at the time of the occurrence, accident, injury or damages complained of, was performing fire . . . duties and if such occurrence, accident, injury or damage was not the result of any wilful or wanton act of such fireman . . . in the discharge of such duties. This section shall not apply to damages to person caused by an employee to a fellow employee while both employees are engaged in the scope of their employment for such municipality if the employee suffering such damages or, in the case of his death, his dependent, has a right to benefits or compensation under chapter 568 by reason of such damages. If a fireman or, in the case of his death, his dependent has a right to benefits or compensation under chapter 568 by reason of injury or death caused by the negligence or wrong of a fellow employee while both employees are engaged in the scope of their employment for such municipality, such fireman or, in the case of his death, his dependent shall have no cause of action against such fellow employee to recover damages for such injury or death unless such wrong was wilful and malicious." (Emphasis added.)
In Keogh v. Bridgeport, 187 Conn. 53, 44 A.2d 225 (1982), the plaintiff administratrix brought suit on behalf of the estate of a deceased fireman (decedent). The decedent was killed while on duty as a fireman for the city of Bridgeport. At a grass fire, a fellow fireman, at the command of a Lieutenant, backed up a fire truck, negligently causing the truck to run over and instantly kill the decedent. The plaintiff brought a wrongful death action against the two firemen individually and the city pursuant to General Statutes § 52-555. The plaintiff also brought an indemnity action against the city pursuant to § 7-308. On appeal, the plaintiff argued, inter alia, that "when injuries are caused by the negligent operation of a motor vehicle, General Statutes § 31-293a supercedes the immunity of a fellow employee provided by General Statutes § 7-308." Id., 61. Finding that § 31-293a does not supercede § 7-308, our Supreme Court stated that "the legislature intended to avoid double liability of municipalities, which would otherwise be liable for both workers' compensation and damages for injuries caused by a negligent fireman, by preventing an injured fireman from bringing an action against his fellow employee." Id., 64. The Supreme Court found no error in the trial court's dismissal of the plaintiff's claims or its holding that § 7-308 bars claims against fellow employees where the plaintiff has a right to workers' compensation. Id., 55, 70.
In Manzo v. Zemstra, Superior Court, judicial district of New Britain, Docket No. CV 97 0483943 (July 19, 1999, Robinson, J.) ( 25 Conn. L. Rptr. 175), the court had occasion to consider facts similar to those in the present case. The defendant in Manzo moved for summary judgment and argued that "pursuant to . . . § 7-308, firefighters who injure fellow firefighters while both individuals are discharging their official duties are immune from suit, provided that the injured firefighter has a right to workers' compensation benefits and the injuries were not wilfully or maliciously caused." Id. The plaintiff argued in Manzo that § 7-308 is inapplicable because the claim against the defendant was based on common-law negligence, not the statute.
The plaintiff in Manzo was a fireman and passenger in a fire truck driven by the defendant. The fire truck collided with an automobile. As a result, the plaintiff filed suit sounding in negligence against the defendant for injuries allegedly sustained during the collision. The court articulated the issue to be decided as: "whether or not General Statutes § 7-308 bars the purportedly common law negligence action brought against a co-employee of the plaintiff firefighter." Id., 176. The court found that "[t]he express language of General Statutes § 7-308(b) states that under the appropriate circumstances, a plaintiff shall have no cause of action against [a] fellow employee, for damages unless the wrong was wilful or malicious . . . Clearly, the plain language of the statute demonstrates the legislature's intent to bar all causes of action brought between fellow firefighters (provided, of course, that the other requirements of the statute are met). There is nothing in General Statutes § 7-308 to indicate that a claim must arise under § 7-308 in order for the prohibition to apply. In fact, Connecticut case law firmly supports statutory interpretation which does not require the filing of a claim under § 7-308 of the General Statutes. See Keogh v. Bridgeport, supra, 187 Conn. 64 (firefighter's administratrix's wrongful death claim against fellow firefighter barred by General Statutes § 7-308); Marquis v. Birkenberger, 29 Conn.Sup. 420, 422-23, 290 A.2d 236 (1972) (defendant's motion for summary judgment granted as General Statutes § 7-308 barred plaintiff's claim); Santiago v. Sciortino, Superior Court, judicial district of Waterbury, Docket No. 125667 (July 31, 1996, McDonald, J.) (summary judgment granted because firefighter's claim for negligence against fellow firefighter barred by General Statutes § 7-308)." (Emphasis added.) Manzo v. Zemstra, supra, 25 Conn. L. Rptr. 177.
As in Manzo, the plaintiffs in the present case have brought, in count one of their complaint, a common-law cause of action sounding in negligence against a fellow fireman for injuries sustained during the discharge of their duties as firemen. In the present case, there is no dispute that the parties were fellow firemen or that the collision occurred during the course of their duties as firemen. (See defendant's exhibit A B.) There appears to be no dispute as to Kirchhoff possessing rights to workers' compensation benefits for injuries suffered while on duty. See General Statutes § 7-314a. As such, the weight of judicial authority and the unambiguous language of § 7-308 directs this court to hold that the plaintiffs' cause of action against the defendant for negligence is barred. Accordingly, the defendant's motion for summary judgment is granted as to count one of the complaint.
In defendant's exhibit A, Bruce Miller, the fire administrator for the town of Waterford, avers that on December 14, 2000, he was the dispatch supervisor for the Waterford fire department and that the dispatch records reveal that the plaintiff, Richard Kirchhoff, and the defendant, Thomas Racicot, were both dispatched to the scene of an accident that took place on Gallows Lane in the town of Waterford.
In defendant's exhibit B, Richard Kirchhoff avers that on December 14, 2000, in his capacity as a volunteer firefighter, he responded to an accident at Gallows Lane in Waterford. The plaintiff does not dispute these facts.
General Statutes § 7-314a provides in pertinent part: "(a) [A]ctive members of volunteer fire departments . . . shall be construed to be employees of the municipality for the benefit of which volunteer fire services . . . are rendered while in training or engaged in volunteer fire duty . . . and shall be subject to the jurisdiction of the Workers' Compensation Commission and shall be compensated in accordance with the provisions of chapter 568 for death, disability or injury incurred while in training for or engaged in volunteer fire duty . . ."
2 Recklessness
Section 7-308(b) provides in relevant part: A fireman "shall have no cause of action against such fellow employee to recover damages for . . . injury . . . unless such wrong was wilful and malicious." (Emphasis added.) In Arnone v. Connecticut Light Power Co., supra, 90 Conn.App. 188, the plaintiff administrator of the estate of a deceased volunteer fireman (decedent) brought suit against the defendant, the chief of a volunteer fire department. The plaintiff alleged that defendant's wilful and malicious conduct in sending firefighters into a house with a downed electric power line, when the defendant knew or should have known that the power line was energized, resulted in the decedent receiving a fatal infusion of an electrical discharge. The Appellate Court, in upholding the trial court's granting of the defendant's motion for summary judgment, articulated the current state of the law for a statutory exception for wilful and malicious conduct. "[T]he statutory exception of wilful and malicious conduct requires a showing of an actual intent to injure the plaintiff to bypass the exclusivity of the [Workers' Compensation Act, General Statutes § 31-275 et seq.], the intentional or deliberate act or conduct alleged must have been designed to cause the injury that resulted. Such a concept is nothing new to our jurisprudence . . . A wilful and malicious injury is one inflicted intentionally without just cause or excuse. It does not necessarily involve the ill will or malevolence shown in express malice. Nor is it sufficient to constitute such an injury that the act resulting in the injury was intentional in the sense that it was the voluntary action of the person involved. Not only the action producing the injury but the resulting injury must be intentional . . . A wilful or malicious injury is one caused by design. Wilfulness and malice alike import intent . . . [Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances . . . The intentional injury aspect may be satisfied if the resultant bodily harm was the direct and natural consequence of the intended act." (Internal quotation marks omitted.) Id., 195-96.
After considering whether the term wilful is synonymous with reckless, the Arnone court went on to hold that "although it is arguable that the term wilful may now be construed as synonymous with recklessness, there is no authority that suggests that maliciousness and recklessness have likewise become synonymous. General Statutes § 7-308(b) provides that the plaintiff shall have no cause of action against such fellow employee to recover damages for such injury or death unless such wrong was wilful and malicious. Regardless of whether the defendant's actions are construed to be wilful, there is no way that a reasonable trier of fact could construe the defendant's acts to be malicious. For the defendant's actions to be malicious, the characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances . . . Not only the action producing the injury but the resulting injury also must be intentional." (Internal quotation marks omitted.) Id., 198-99. The Arnone court therefore concluded, based on the facts alleged and the evidence submitted, that no trier of fact could reasonably conclude that the defendant actually intended to injure the decedent, nor could one imply that the defendant had a design to injure the decedent. No genuine issue of material fact existed, and as a matter of law, it could not be determined that the defendant's conduct was wilful or malicious. Id., 199.
Similarly, in the present case, considering the facts alleged in the pleadings and the evidence submitted, a trier of fact could not reasonably construe the defendant's action as wilful or malicious. In support of his motion for summary judgment, the defendant submitted affidavits demonstrating that the reason for the parties converging upon Gallows Lane in Waterford was to respond to an accident as volunteer firemen. The plaintiffs have not submitted any evidence in support of their opposition to the motion for summary judgment. Therefore, the court takes the facts as they are found in the pleadings, in conjunction with the evidence submitted by the defendant, and concludes that no genuine issue of material fact exists and no trier of fact could reasonably conclude that the defendant's conduct was wilful or malicious in that he had design to injure the plaintiff Kirchhoff and that Kirchoff's resulting injuries were intentional. Arnone v. Connecticut Light Power Co., supra, 90 Conn.App. 188. Therefore, the defendant's motion for summary judgment as to count two of the complaint is granted.
Additionally, because the motion for summary judgment has been granted as to counts one and two, the plaintiffs' third and final count alleging loss of consortium must also fail. "As a derivative cause of action, loss of consortium is dependent on the legal existence of the predicate action . . . That is to say, if an adverse judgment bars the injured spouse's cause of action, any claim for loss of consortium necessarily fails as well." (Internal quotation marks omitted.) Cavallaro v. Hospital of Saint Raphael, 92 Conn.App. 59, 62 n. 5, 882 A.2d 1254 (2005).
CONCLUSION
For all the foregoing reasons, the defendant's motion for summary judgment is granted as to all counts of the plaintiffs' complaint.