(Emphasis in original.) As we explain more fully hereinafter, this court previously has held that the meaning of the phrase "in the course of his duty" under § 53–39a is guided by our construction of the phrase "course of employment" as that phrase is used in our workers' compensation statutes, General Statutes § 31–275 et seq. See, e.g., Rawling v. New Haven, 206 Conn. 100, 106, 537 A.2d 439 (1988). Whether an employee's conduct falls within the "course of [his] employment" for workers' compensation purposes is typically a fact-based determination that requires consideration of a variety of factors, including the "time, place and extent of [any] deviation [from the duties of his employment] ... as well as what duties were required of the employee and the conditions surrounding the performance of his work ...." (Citation omitted; internal quotation marks omitted.)
Our Supreme Court has instructed that this statute, because it abrogates and modifies governmental immunity, should be strictly construed. Rawling v. New Haven, 206 Conn. 100, 105, 537 A.2d 439 (1988); see also Cislo v. Shelton, 240 Conn. 590, 598, 692 A.2d 1255 (1997). "Section 53-39a . . . was originally enacted in 1973; see Public Acts 1973, No. 73-627 . . . . The general purpose of the statute is to permit police officers to recoup the necessary expenses that they have incurred in defending themselves against unwarranted criminal charges arising out of their conduct in the course of their employment."
"That statute affords a police officer a right of indemnity for economic loss incurred for a prosecution `for a crime allegedly committed by such officer in the course of his duty as such' if `the charge is dismissed or the officer found not guilty.'" Rawling v. New Haven, 206 Conn. 100, 104, 537 A.2d 439 (1988). Thus, "any person who invokes § 53-39a must sustain a twofold burden of proof.
(Footnote omitted).Rawling v. New Haven, 206 Conn. 100, 106-07 (1988). An employee who substantially deviates from the duties of employment, even if the event in issue temporally occurs during the time of employment, forfeits any right to compensation, and case law recognizes no bright line. Rawling, supra, 107.
The facts as well as the evidence must be viewed in the light most favorable to the nonmoving party. Rawling v. New Haven, 206 Conn. 100, 104, 537 A.2d 439 (1988) The burden of proof is on the moving party and the standards of summary judgment are strictly and forcefully applied D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980)." Miller v. United Technologies Corp., 238 Conn. 732, 751-52 (1995) "[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.
In order to receive indemnity, a police officer must prove not only that the charges against him were dismissed, or that he was acquitted, but also that the charges arose `in the course of his duty' as a policeman." Rawling v. New Haven, 206 Conn. 100, 106, 537 A.2d 439 (1988). Here, the defendant's arguments concerning economic loss do not relate to its liability under § 53-39a but, rather, to the measure of damages due to the plaintiff.
It is true that the earlier cases we have considered involved factual scenarios concerning individuals employed by municipalities. See Cislo v. Shelton, supra, 240 Conn. 598 ("[§] 53-39a . . . authorizes indemnification for economic loss, including legal fees, incurred by officers of local police departments who are prosecuted for crimes allegedly committed by them in the course of their duties when the charges against them are dismissed or they are found not guilty" [citation omitted; emphasis added]); Rawling v. New Haven, 206 Conn. 100, 104-105, 537 A.2d 439 (1988) ("[§ 53-39a] affords a police officer a right of indemnity . . . [and is a statute] that abrogate[s] or modif[ies] governmental immunity" [citations omitted; emphasis added; internal quotation marks omitted]); Link v. Shelton, supra, 186 Conn. 627 ("§ 53-39a authorizes indemnification for legal fees incurred by an officer of a local police department as a result of prosecution for a crime allegedly committed by him in the course of his duty where he is found not guilty of the crime charged" [emphasis added; internal quotation marks omitted])
" (Citations omitted.) Rawling v. New Haven, 206 Conn. 100, 107, 537 A.2d 439 (1988); accord Luddie v. Foremost Ins. Co., 5 Conn. App. 193, 196-97, 497 A.2d 435 (1985) ("In determining whether an unauthorized deviation from the employment is so slight as not to relieve the employer from liability, or of such a character as to constitute a temporary abandonment of the employment, [t]he true test is analogous to that applied to determine whether a deviation in agency terminates that relationship. . . . [T]he trier must take into account, not only the mere fact of deviation, but its extent and nature relatively to time and place and circumstances, and all the other detailed facts which form a part of and truly characterize the deviation. . . ." [Citation omitted; internal quotation marks omitted.
The plaintiff also included the following passage in his supplemental trial brief: "The above facts establish that Mr. Crotty was in the course and scope of his employment while testifying before the grand jury in June and July of 1955. The facts above clearly met the three factors set forth by the Connecticut Supreme Court in the case of Rawling v. New Haven, 206 Conn. 100, 107, 537 A.2d 439 (1988)." (Emphasis added.)
Viewed another way, the court has no doubt that the Connecticut General Assembly could, by statute, provide that, if a plaintiff alleges complete failure of a municipal officer or employee to perform a duty established by statute (or by regulation, or by local ordinance), governmental immunity is no defense. In the absence of such a statute, and bearing in mind that statutes waiving governmental immunity are strictly construed against waiver; Rawling v. New Haven, 206 Conn. 100, 105, 537 A.2d 439 (1988); this court perceives no power to find that a claim of complete failure to perform a statutory duty which, if done at all, would be left to a governmental official’s discretion defeats governmental immunity. Indeed, "for the purposes of § 52-557n, municipal acts that would otherwise be considered discretionary will only be deemed ministerial if a policy or rule limiting discretion in the completion of such acts exists."