The plaintiff claims that Vitatoe was careless and negligent because he failed to back up said motor vehicle with reasonable safety and without interference from other traffic in violation of General Statutes §
"Practice Book § 384 [now Practice Book (1998 Rev.) § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show CT Page 10607 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." (Internal quotation marks omitted.) Doty v. Mucci,
The plaintiff moves for summary judgment on the issue of liability. The plaintiff contends that the defendant has admitted fault for the collision through Vitatoe's deposition testimony. Furthermore, the plaintiff argues that the defendant is clearly negligent and that there exists no issue of fact to litigate regarding liability. The plaintiff relies on Riccio v. Abate,
In its memorandum in opposition, the defendant argues that the plaintiff is not entitled to summary judgment on the issue of liability because an issue of fact exists regarding Vitatoe's operation of the defendant's vehicle. Specifically, the defendant argues that Vitatoe's affidavit asserts facts indicating that Vitatoe operated the vehicle in a reasonable manner and that this affidavit therefore raises a question of fact as to Vitatoe's negligence.
Furthermore, the defendant argues that Vitatoe never conceded that he was careless or negligent by stating "it was my fault" in CT Page 10608 his deposition testimony. The defendant contends that this statement was merely an indication that Vitatoe knew he had backed the truck into the plaintiff's vehicle and was not in any way an admission of negligence. In support of its argument, the defendant cites Kalagian v. Wagner, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 308666 (December 6, 1994, McGrath, J.), in which the court denied the plaintiff's motion for summary judgment where the defendant admitted to striking the plaintiff's vehicle, but denied the allegation of negligence.
First, the court will address the plaintiff's contention that its motion should be granted because the facts of this case are similar to other cases where summary judgment was granted as to liability such as Riccio v. Abate,
The plaintiff next argues that summary judgment should be granted as to liability because Vitatoe stated "it was my fault" in his deposition testimony.1 "Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." Home Ins. Co. v. Aetna Life Casualty Co.,
The defendant's opposing affidavit of Rick Vitatoe asserts that Vitatoe's deposition statement was not meant as an admission of negligence. Rather, Vitatoe attests that his statement, "it was my fault," was merely an indication that Vitatoe knew that it was his vehicle, rather than the plaintiff's vehicle, that had moved. Vitatoe further avers that his actions were appropriate under the circumstances he was facing at the time of the collision.
In addition, Vitatoe attests that after being stopped for less than a minute, he shifted into reverse, thereby activating the vehicle's back-up lights and warning signals. Vitatoe also avers that although he had his window open, he did not hear a horn sound prior to impact.
"[N]egligence has long been defined as the failure to use that degree of care for the protection of another that the ordinarily reasonably careful and prudent [person] would use under like circumstances." (Internal quotation marks omitted.)Brown v. Branford,
Here, there is a genuine issue of material fact concerning the question of negligence which renders summary judgment inappropriate. Vitatoe's contradictory affidavit precludes the granting of summary judgment based on the deposition submitted by the plaintiff. Accordingly, summary judgment is denied.
D'ANDREA, J. CT Page 10610