Tran v. Woodworth

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Tran v. Woodworth

CUONG KIM TRAN v. MARK ALLEN WOODWORTH,

COADMINISTRATOR (ESTATE OF NANCY S.

WOODWORTH), ET AL.

(AC 46193)

Suarez, Seeley and Vertefeuille, Js.

Syllabus

The plaintiff sought to recover damages for, inter alia, personal injuries he

sustained as a result of a head-on motor vehicle collision that resulted

in the death of the defendants’ decedent. The plaintiff alleged that the

decedent’s negligence in operating her motor vehicle caused her vehicle

to cross over the double yellow lines into his lane of travel, causing the

collision. The defendants filed requests for admissions, which requested

that the plaintiff admit, inter alia, that he was distracted from the road-

way immediately prior to the collision and that he was unaware of the

existence of any evidence to contest that the collision occurred in the

decedent’s northbound lane of travel. As a result of the plaintiff’s failure

to respond to the requests, the requested admissions were deemed

admitted by the plaintiff pursuant to the rule of practice (§ 13-23). The

defendants thereafter filed a motion for summary judgment, claiming

that they were entitled to judgment as a matter of law and that, on the

basis of the plaintiff’s admissions, it was uncontested that he, in his

distraction, had driven from his southbound lane of travel into the

northbound lane and, thus, caused the collision. The defendants also

submitted an affidavit from H, an engineer and accident reconstruction-

ist, attesting that he had reviewed police photographs from the scene

of the collision and that that information conclusively established that

the plaintiff’s vehicle had crossed from the southbound lane into the

northbound lane and collided with the decedent’s vehicle. The plaintiff

filed an opposition to the defendants’ motion for summary judgment,

to which he appended a signed, written statement of W, the only eyewit-

ness to the collision. W’s statement was taken by a police officer who

had responded to the scene of the accident. In his statement, W recalled,

inter alia, that he had been driving behind the plaintiff in the northbound

lane of travel and had witnessed the decedent’s vehicle drift from the

southbound lane and collide with the plaintiff’s vehicle. The trial court

granted the defendants’ motion for summary judgment, reasoning that,

because the plaintiff relied on an inconsistent statement from an eyewit-

ness as to his direction of travel when the collision occurred and that

the facts deemed admitted by the plaintiff demonstrated that the collision

occurred in the decedent’s lane of travel, no genuine issue of material

fact existed concerning the location of the collision. The court deter-

mined that the plaintiff had failed to meet his burden in opposing sum-

mary judgment by submitting countervailing evidence to demonstrate

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Tran v. Woodworth

the existence of a genuine issue of material fact. On the plaintiff’s appeal

to this court, held that the trial court improperly rendered summary

judgment for the defendants: the evidence on which the defendants

relied in support of their motion did not resolve the factual allegations

of negligence contested in the pleadings, as the plaintiff’s admissions

that he was momentarily distracted just prior to the collision and was

not aware of any evidence contesting that the collision occurred in

the northbound lane did not resolve or address the factual issues or

allegations raised in the complaint concerning the decedent’s conduct

prior to the collision, which could have been a significant factor in

contributing to the collision and the extent of the plaintiff’s injuries;

moreover, H’s affidavit also was insufficient to establish a genuine issue

of any material fact as to the allegations of negligence, as it was not

based on personal observations of the collision or knowledge about

how it occurred and it did not address whether any of the decedent’s

conduct caused or contributed to the collision; furthermore, although

the defendants did not meet their burden in demonstrating the absence

of a genuine issue of material fact concerning the allegations of negli-

gence in the complaint and the burden of proof never shifted to the

plaintiff, even if this court were to conclude that the defendants met

their initial burden, W’s sworn statement was sufficient to establish the

existence of a genuine issue of material fact concerning the cause of the

collision to preclude summary judgment, as it served as direct evidence

concerning the circumstances surrounding the collision, and any incon-

sistencies in his statement concerned factual matters to be determined

by a jury during a trial; accordingly, this court reversed the judgment

of the trial court and remanded the case for further proceedings in

accordance with its opinion.

Argued January 18—officially released May 21, 2024

Procedural History

Action to recover damages for, inter alia, personal

injuries sustained as a result of the alleged negligence

of the defendants’ decedent, and for other relief,

brought to the Superior Court in the judicial district of

Hartford, where the court, Baio, J., granted the defen-

dants’ motion for summary judgment and rendered

judgment thereon, from which the plaintiff appealed to

this court. Reversed; further proceedings.

David S. Migliore, for the appellant (plaintiff).

Philip T. Newbury, Jr., with whom, on the brief, was

William F. Corrigan, for the appellees (defendants).

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Tran v. Woodworth

Opinion

SEELEY, J. The plaintiff, Cuong Kim Tran, appeals

from the summary judgment rendered by the trial court

in favor of the defendants, Mark Allen Woodworth and

Jennifer Woodworth Sulc, coadministrators of the

estate of the decedent, Nancy S. Woodworth. On appeal,

the plaintiff claims that the trial court improperly

granted the defendants’ motion for summary judgment

and determined that the defendants were entitled to

judgment as a matter of law as to the plaintiff’s com-

plaint alleging negligence because (1) the documents

on which the defendants relied in support of their

motion did not demonstrate the absence of any genuine

issue of material fact as to the allegations of negligence

in the complaint and (2) the plaintiff submitted counter-

vailing evidence demonstrating the existence of a genu-

ine issue of material fact that precluded summary judg-

ment. We agree with the plaintiff and, therefore, reverse

the summary judgment rendered in favor of the defen-

dants and remand the case for further proceedings.

The following facts, as alleged in the complaint and

viewed in the light most favorable to the plaintiff as

the nonmoving party, or as otherwise undisputed in

the record, and procedural history are relevant to our

resolution of this appeal. On October 27, 2017, a motor

vehicle accident occurred on Route 17 in the town of

Glastonbury, at approximately 10:40 a.m. The plaintiff

was operating a light blue 2005 Acura MDX sport utility

vehicle (Acura) that was traveling in the southbound

lane of Route 17. At the same time, the decedent was

operating a red 2013 Buick Verano sedan (Buick) and

was traveling in the northbound lane of Route 17. The

plaintiff alleged that, ‘‘as [his] vehicle was proceeding

southbound in his lane of travel, the decedent’s vehicle,

suddenly and without warning, left the northbound lane

of travel and crossed over the double yellow lines into

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Tran v. Woodworth

the plaintiff’s lane of travel, causing a violent head-on

collision.’’

Shortly after the accident, state police and fire per-

sonnel arrived at the scene. The decedent died as a

result of the accident, and the plaintiff, who was ren-

dered unconscious and allegedly suffered severe bodily

injuries, is unable to recall any details concerning the

collision. Following the accident, the defendants were

appointed as coadministrators of the decedent’s estate.

On October 28, 2019, the plaintiff commenced this

action. In his complaint, the plaintiff alleged a single

count of negligence, namely, that the decedent was

negligent in operating her motor vehicle and that the

decedent’s negligence caused the head-on collision,

resulting in the injuries and losses he sustained.

Specifi-

cally, the plaintiff alleged that the violent collision and

the plaintiff’s injuries and losses were caused by the

carelessness and/or negligence of the decedent in one

or more of the following ways: ‘‘In that she failed to

drive on the right side of the road in violation of . . .

General Statutes [§] 14-230 . . . she failed to maintain

her lane by traveling over the double yellow line dividing

the roadway in violation of . . . General Statutes [§]

14-237 . . . she was traveling unreasonably fast in vio-

lation of . . . General Statutes [§] 14-218a . . . she

failed to keep her vehicle under proper and reasonable

control . . . she failed to keep a proper and reasonable

lookout for other motor vehicles on the roadway, specif-

ically the motor vehicle operated by the plaintiff, which

was approaching her motor vehicle . . . she failed to

The plaintiff alleged that he has incurred expenses for medical care,

including costs for the ambulance, the hospital and physical rehabilitation

care, X-rays, MRIs, CT scans, physician’s fees, surgical fees, and medication,

and that he may incur additional medical expenses in the future. Additionally,

the plaintiff alleged that, as a direct and proximate result of the collision,

his vehicle was destroyed, he suffered the loss of his property and the loss

of use of his vehicle, and he has incurred storage fees and costs.

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Tran v. Woodworth

apply her brakes in time to avoid the collision, although

by a proper and reasonable exercise of her faculties,

she could and should have done so; and . . . she failed

to turn her motor vehicle to the left or to the right

so as to avoid a collision, although by a proper and

reasonable exercise of her faculties she could and

should have done so.’’ On June 11, 2020, the defendants

filed an answer to the complaint denying those allega-

tions and asserted as a special defense that the plain-

tiff’s injuries were caused by his own negligence. On

the same day, the plaintiff replied to the defendants’

answer and denied every allegation contained in the

special defense.

On June 9, 2021, the defendants served the plaintiff

with requests for admissions. In their request for admis-

sions, filed pursuant to Practice Book § 13-22,

the

defendants requested that the plaintiff admit the truth

to the following matters: ‘‘(1) At the time of the subject

accident, the plaintiff . . . was driving south on Route

17 in Glastonbury . . . (2) Immediately prior to the

subject accident the plaintiff . . . was momentarily

distracted from the roadway when he saw something

off the roadway . . . (3) The plaintiff . . . did not see

the [decedent’s] car immediately prior to the subject

accident . . . (4) The plaintiff . . . did not immedi-

ately know what his car came in contact with in the

accident . . . (5) The attached is a fair and accurate

copy of the written statement the plaintiff . . . gave

to the Connecticut State Police concerning the subject

Practice Book § 13-22 (a) provides in relevant part: ‘‘A party may serve

in accordance with Sections 10-12 through 10-17 upon any other party a

written request, which may be in electronic format, for the admission, for

purposes of the pending action only, of the truth of any matters relevant

to the subject matter of the pending action set forth in the request that

relate to statements or opinions of fact or of the application of law to fact,

including the existence, due execution and genuineness of any documents

described in the request. . . .’’

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Tran v. Woodworth

accident . . . (6) The plaintiff . . . is aware of no evi-

dence to contest that the decedent . . . was operating

her car northbound on Route 17 in Glastonbury . . .

at the time of the accident . . . [and] (7) The plaintiff

. . . is aware of no evidence to contest that the subject

accident occurred in the northbound lane of travel on

Route 17 in Glastonbury . . . .’’ The plaintiff never

responded to the request for admissions.

Pursuant to Practice Book §13-23 (a), ‘‘[e]ach matter

of which an admission is requested is admitted unless,

within thirty days after the filing of the notice required

by Section 13-22 (b), or within such shorter or longer

time as the judicial authority may allow, the party to

whom the request is directed files and serves upon

the party requesting the admission a written answer or

objection addressed to the matter . . . .’’ ‘‘[A] failure

to respond timely to a request for admissions means that

the matters sought to be answered were conclusively

admitted.’’ (Internal quotations marks omitted.) HM

Construction & Painting, LLC v. 32 Wilmot Place,

LLC, 222 Conn. App. 261, 269, 305 A.3d 302 (2023); East

Haven Builders Supply, Inc. v. Fanton, 80 Conn. App.

734, 744, 837 A.2d 866 (2004); see also Practice Book

§ 13-24. Accordingly, by operation of law, the requested

admissions were deemed admitted by the plaintiff as a

result of his failure to respond to them.

‘‘It has long been held that ‘[f]actual allegations contained in pleadings

upon which the case is tried are considered judicial admissions and hence

irrefutable as long as they remain in the case. . . . An admission in pleading

dispenses with proof, and is equivalent to proof.’ . . . Provencher v.

Enfield, 284 Conn. 772, 792, 936 A.2d 625 (2007). ‘A judicial admission

dispenses with the production of evidence by the opposing party as to the

fact admitted, and is conclusive upon the party making it. . . . [The] admis-

sion in a plea or answer is binding on the party making it, and may be

viewed as a conclusive or judicial admission. . . . It is axiomatic that the

parties are bound by their pleadings.’ . . . Industrial Mold & Tool, Inc. v.

Zaleski, 146 Conn. App. 609, 614, 78 A.3d 218 (2013) . . . . Similarly, ‘[a]

party’s response to a request for admissions is binding as a judicial admission

unless the judicial authority permits withdrawal or amendment. . . . [A]

failure to respond timely to a request for admissions means that the matters

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Tran v. Woodworth

On September 23, 2022, pursuant to Practice Book

§ 17-44, the defendants filed a motion for summary judg-

ment as to the plaintiff’s complaint, in which they

claimed that no genuine issues of material fact existed

and that they were entitled to judgment as a matter of

law. Specifically, the defendants, relying on the plain-

tiff’s admissions that he was distracted prior to the

accident and that the accident occurred in the north-

bound lane, asserted in their memorandum of law in

support of their motion for summary judgment that it

was ‘‘uncontested that the plaintiff, in his distraction,

suddenly and without warning crossed the double yel-

low lines and killed the . . . decedent.’’ Thus, they

argued that the plaintiff could not present any evidence

to establish the allegations of negligence in the com-

plaint. In support of the motion for summary judgment,

the defendants attached their request for admissions

and included an affidavit of William M. Howerton, an

engineer and accident reconstructionist. In the affidavit,

Howerton attested to the following: ‘‘As to the subject

accident of October 17, 2017

on Route 17 in Glaston-

bury . . . I have reviewed the police photographs, and

the location of the gouge marks, debris and liquid spray

on the road, and the final resting places of the vehicles

involved establish without a doubt that the southbound

vehicle operated by [the plaintiff] crossed the double

yellow lines and struck head-on the vehicle operated

northbound by [the decedent], operating in the north-

bound lane.’’ (Footnote added.)

On December 12, 2022, the parties appeared remotely

before the court, Baio, J., to present argument concern-

ing the defendants’ motion for summary judgment. The

sought to be answered were conclusively admitted.’ ’’ (Citation omitted.)

HM Construction & Painting, LLC v. 32 Wilmot Place, LLC, supra, 222

Conn. App. 268–69.

We note that the affidavit incorrectly states the accident occurred on

October 17, 2017, when it occurred on October 27, 2017.

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Tran v. Woodworth

same day, prior to argument, the plaintiff filed a memo-

randum of law in opposition to the defendants’ motion

for summary judgment,

in which he argued that there

was a genuine issue of material fact concerning the

decedent’s alleged negligence and that he could estab-

lish that the decedent was negligent in one of the ways

alleged in his complaint. Moreover, in support of his

opposition to the motion for summary judgment, the

plaintiff submitted a copy of the signed written state-

ment of the only eyewitness to the accident, Jason D.

Watson.

In his written statement, Watson recounted

the details leading up to the crash and the aftermath

and acknowledged that his written statement was true

and made to the best of his knowledge and belief. Spe-

cifically, Watson recalled that he was travelling north-

bound on Route 17 approximately 100 feet behind a

gray

Acura and that there was a red Buick coming from

the opposite direction.

Watson further recalled that,

prior to when the accident occurred, when the red

Buick was approximately 125 to 150 feet away from his

vehicle, he saw the red Buick drift into his lane of

Although the objection was not timely filed pursuant to Practice Book

§ 17-45 (b), the defendants did not object to the court considering the

objection, and the court provided the defendants with the opportunity to file

a reply memorandum. The objection was, thus, allowed, and the defendants’

counsel filed a reply memorandum.

Watson’s statement was taken by Trooper Andrew Crook, who had

responded to the scene of the accident. Crook completed the written state-

ment by signing that he had taken the oath of the eyewitness, Watson, on

October 27, 2017, the same day the statement was provided. In that sworn

statement, Watson provided Crook with his date of birth and his residential

address and acknowledged that, by signing the written statement, he was

making the statement without fear, threat or promise and that he had been

advised that it is a crime to make any statements that are untrue and intended

to mislead a public servant in the performance of his official function.

Although Watson described the Acura as being gray in color, the color

of the Acura driven by the plaintiff was light blue.

We note that there is an inconsistency in Watson’s statement as to his

direction of travel. Watson claims to have been traveling in a northbound

direction behind the plaintiff’s Acura. The plaintiff, however, was traveling

in the southbound lane of Route 17 at the time of the accident.

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Tran v. Woodworth

travel. According to Watson, the driver of the red Buick

attempted to correct herself but it was too late, and the

vehicles collided head-on. After the collision, Watson

attempted to check on the well-being of both drivers.

On December 20, 2022, the defendants filed a reply

to the plaintiff’s objection to the motion for summary

judgment. In their reply, the defendants argued that the

evidence submitted by the plaintiff did not establish

the existence of a genuine issue of material fact.

Thereafter, on January 5, 2023, the court issued a

memorandum of decision granting the defendants’

motion for summary judgment. The court reasoned that

the plaintiff’s objection to the motion for summary judg-

ment relied on an inconsistent statement from an eye-

witness as to the direction he was traveling when the

accident occurred and that the facts deemed admitted

by the plaintiff—that the decedent was traveling in the

northbound lane and the accident occurred in the north-

bound lane—supported a determination that no genuine

issue of material fact existed concerning the location

of the accident. Further, the court determined that the

plaintiff failed to meet his burden in opposing summary

Watson also asserted the following in his statement: ‘‘After the vehicles

collided the Acura ended up in the southbound lane and the Buick ended

up in the northbound lane. At this time, I immediately pulled over to help.

I approached the Acura and could see the male operator was trapped in

the vehicle but was still alive and able to talk. The male operator was the

only person in the Acura. I then ran over to the Buick. The Buick was being

driven by a female who was unconscious and also trapped in the vehicle.

The female was the only person in the Buick. I was not able to gain access

to the Buick, so I returned to the Acura. The Acura . . . began to smoke

so I feared that it was going to catch on fire. I spoke with the operator of

the Acura and he stated that his back was hurting and he was having trouble

breathing. I helped lay the operator of the Acura across the driver and

passenger seats to make him more comfortable. The driver of the Acura

was fading in and out of consciousness so I continued to talk to him. There

was a female driver behind me who had also stopped and called for help

as I was speaking with the operator of the Acura. Police and fire [personnel]

arrived on scene shortly after she had called.’’

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Tran v. Woodworth

judgment by submitting countervailing evidence to

demonstrate the existence of a genuine issue of material

fact. From the judgment rendered thereon, this appeal

followed.

On appeal, the plaintiff claims that the court improp-

erly granted the defendants’ motion for summary judg-

ment. Specifically, the plaintiff claims that (1) the evi-

dence and affidavit on which the defendants relied in

support of their motion for summary judgment did not

demonstrate the absence of any genuine issue of mate-

rial fact as to the allegations of negligence in the com-

plaint and (2) the court improperly determined that

the plaintiff failed to submit countervailing evidence

demonstrating the existence of a genuine issue of mate-

rial fact. We agree with both of the plaintiff’s claims.

Before addressing those claims, we set forth our

applicable standard of review and the principles that

guide our analysis of an appeal from a decision granting

a motion for summary judgment. ‘‘The standard of

review of motions for summary judgment is well settled.

Practice Book § 17-49 provides that summary 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.’’ (Inter-

nal quotation marks omitted.) Abendroth v. Moffo, 156

Conn. App. 727, 730–31, 114 A.3d 1224, cert. denied, 317

Conn. 911, 116 A.3d 309 (2015). ‘‘In deciding a motion

for summary judgment, the trial court must view the

evidence in the light most favorable to the nonmoving

party. . . . The courts are in entire agreement that the

moving party . . . has the burden of showing the

absence of any genuine issue as to all the material facts

. . . . 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

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Tran v. Woodworth

party has no obligation to submit documents establish-

ing the existence of such an issue. . . . Once the mov-

ing party has met its burden, however, the [nonmoving]

party must present evidence that demonstrates the exis-

tence of some disputed factual issue. . . . A material

fact . . . [is] a fact which will make a difference in the

result of a case.’’ (Internal quotation marks omitted.)

Forestier v. Bridgeport, 223 Conn. App. 298, 308, 308

A.3d 102 (2024).

‘‘It is not enough for the moving party merely to assert

the absence of any disputed factual issue; the moving

party is required to bring forward . . . evidentiary

facts, or substantial evidence outside the pleadings to

show the absence of any material dispute.’’ (Internal

quotation marks omitted.) Hassiem v. O & G Indus-

tries, Inc., 197 Conn. App. 631, 636, 232 A.3d 1139, cert.

denied, 335 Conn. 928, 235 A.3d 525 (2020). ‘‘A party

seeking summary judgment has the considerable bur-

den of demonstrating the absence of any genuine issue

of material fact because litigants ordinarily have a con-

stitutional right to have issues of fact decided by a [jury]

. . . .’’ (Internal quotation marks omitted.) Mariano v.

Hartland Building & Restoration Co., 168 Conn. App.

768, 781, 148 A.3d 229 (2016).

‘‘On appeal [w]e must decide whether the trial court

erred in determining that there was no genuine issue

as to any material fact and that the moving party is

entitled to judgment as a matter of law. . . . Because

the trial court rendered judgment for the [defendants]

as a matter of law, our review is plenary . . . . ’’ (Inter-

nal quotation marks omitted.) Schimenti Construction

Co., LLC v. Schimenti, 217 Conn. App. 224, 234, 288

A.3d 1038 (2023). ‘‘In deciding a motion for summary

judgment, [i]ssue finding, rather than issue-determina-

tion, is the key to the procedure. . . . [T]he trial court

does not sit as the trier of fact when ruling on a motion

for summary judgment. . . . [Its] function is not to

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Tran v. Woodworth

decide issues of material fact, but rather to determine

whether any such issues exist.’’ (Internal quotation

marks omitted.) Id., 234–35.

We next turn to the well settled law of negligence.

‘‘[T]he essential elements of a cause of action in negli-

gence are well established: duty; breach of that duty;

causation; and actual injury.’’ (Internal quotation marks

omitted.) Gonzalez v. O & G Industries, Inc., 341 Conn.

644, 680, 267 A.3d 766 (2021). In their motion for sum-

mary judgment, the defendants focused on the causa-

tion element. ‘‘To prevail on a negligence claim, a plain-

tiff must establish that the defendant’s conduct legally

caused the injuries.’’ (Internal quotation marks omit-

ted.) Winn v. Posades, 281 Conn. 50, 56, 913 A.2d 407

(2007). ‘‘[A] collision alone does not create a rebuttable

presumption of negligence and causation.’’ Rawls v.

Progressive Northern Ins. Co., 310 Conn. 768, 778, 83

A.3d 576 (2014). Our Supreme Court ‘‘has recognized

that in a case involving an automobile accident, [a]

plaintiff cannot merely prove that a collision occurred

and then call upon the defendant operator to come

forward with evidence that the collision was not a proxi-

mate consequence of negligence on his part. Nor is it

sufficient for a plaintiff to prove that a defendant opera-

tor might have been negligent in a manner which would,

or might have been, a proximate cause of the collision.

A plaintiff must remove the issues of negligence and

proximate cause from the field of conjecture and specu-

lation.’’ (Internal quotation marks omitted.) Winn v.

Posades, supra, 57. Generally, ‘‘[i]ssues of negligence

are ordinarily not susceptible of summary adjudication

but should be resolved by trial in the ordinary manner.’’

(Internal quotation marks omitted.) Fogarty v. Rashaw,

193 Conn. 442, 446, 476 A.2d 582 (1984).

With these principles in mind, we turn to the plain-

tiff’s first claim, which, in essence, asserts that the

defendants did not meet their burden, as the parties

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Tran v. Woodworth

moving for summary judgment, of establishing the

absence of a genuine issue of material fact concerning

the allegations of negligence in the complaint. In sup-

port of their motion for summary judgment, the defen-

dants attached the request for admissions directed to

the plaintiff and the affidavit from Howerton. The

requested admissions, which were deemed admitted by

the plaintiff, include the following: (1) the plaintiff was

driving in a southbound direction at the time of the

accident; (2) ‘‘[i]mmediately prior to the . . . accident

the plaintiff . . . was momentarily distracted from the

roadway when he saw something off the roadway’’; (3)

the plaintiff did not see the decedent’s vehicle immedi-

ately prior to the collision; (4) the plaintiff ‘‘did not

immediately know what his car came in contact with

in the accident’’; (5) the plaintiff gave a signed, written

statement to the police following the accident; (6) the

plaintiff was not aware of any evidence ‘‘to contest that

the decedent . . . was operating her car northbound

on Route 17 in Glastonbury . . . at the time of the

accident’’; and (7) the plaintiff was not aware of any

evidence ‘‘to contest that the subject accident occurred

in the northbound lane . . . .’’ In light of these admis-

sions, the defendants argued that there was no issue

of material fact that the accident occurred in the north-

bound lane, the decedent’s lane of travel. We do not

agree that the plaintiff’s admission that he was ‘‘aware

of no evidence to contest that the subject accident

occurred in the northbound lane’’ conclusively estab-

lishes that the accident occurred in the northbound

lane. Additionally, even if the accident did occur in the

northbound lane of Route 17, we disagree with the

defendants’ further assertion that the admissions neces-

sarily establish that the plaintiff must have crossed over

the double yellow line and been the sole cause of the

collision.

Significantly, aside from establishing the direction of

travel of the vehicles, that the plaintiff was momentarily

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Tran v. Woodworth

distracted just prior to the collision, and that the plain-

tiff was not aware of any evidence contesting that the

collision occurred in the northbound lane, the admis-

sions do not resolve or address the factual issues and

allegations raised in the complaint. The complaint

alleges that the decedent was negligent in a number of

ways, including by failing to drive on the right side of

the road, failing to maintain her lane of travel, traveling

unreasonably fast, and failing to keep her vehicle under

proper and reasonable control, to keep a proper and

reasonable lookout for other motor vehicles on the

roadway, to apply her brakes in time to avoid the colli-

sion, and to turn her motor vehicle to the left or to the

right so as to avoid a collision. The admissions, which

do not address any conduct by the decedent prior to

the collision, do not in any way resolve or dispel these

allegations, any one of which could have been a signifi-

cant factor in at least contributing to the collision and

the extent of the plaintiff’s claimed injuries.

We also conclude that Howerton’s affidavit is simi-

larly deficient in addressing the allegations of negli-

gence in the complaint. First, notably, Howerton’s attes-

tations are not based on personal observations of the

collision or knowledge about how it occurred, nor does

it appear from his affidavit that he reviewed the police

report concerning the accident. His affidavit is also

silent regarding the decedent’s conduct prior to the

collision. We are not persuaded that Howerton, having

reviewed only accident photographs and the final loca-

tion of the vehicles, could determine who caused the

accident, as opposed to where it took place. Because

Howerton’s affidavit addresses only the location of the

accident as being in the northbound lane and not

whether any actions of the decedent caused or contrib-

uted to the collision, his statement is not sufficient to

establish the absence of a genuine issue of material fact

as to the allegations of negligence in the complaint.

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Tran v. Woodworth

That is, Howerton’s conclusion in his affidavit that the

plaintiff crossed the double yellow lines and struck the

decedent’s vehicle in the northbound lane head-on does

not conclusively resolve the factual issues of whether

the decedent failed to maintain her lane of travel just

prior to the collision, whether she was traveling unrea-

sonably fast, or whether she failed to keep her vehicle

under proper and reasonable control, to keep a proper

and reasonable lookout for other motor vehicles on

the roadway, to apply her brakes in time to avoid the

collision, and to turn her motor vehicle to the left or

to the right so as to avoid a collision.

Our Supreme Court’s decision in Fogarty v. Rashaw,

supra, 193 Conn. 442, is directly on point with the pres-

ent case. In Fogarty, the plaintiff brought an action for

personal injuries he sustained in a two car collision.

Id. The trial court rendered summary judgment in favor

of the defendants, which our Supreme Court reversed

on appeal. Id., 442–43. In doing so, the court stated that

the affidavits on which the defendants relied ‘‘con-

tain[ed] no facts to refute the plaintiff’s allegations that

[the driver of the other vehicle] failed to keep his car

under reasonable control, to maintain a proper lookout,

and to apply his brakes or turn his vehicle in time to

avoid the collision when he had an opportunity to do

so.’’ Id., 445. The court, thus, concluded that, ‘‘[s]ince

these factual issues, contested in the pleadings and not

even referred to in the defendants’ affidavits, remained

unresolved, the court was clearly in error in granting

the motion for summary judgment.’’ (Internal quotation

marks omitted.) Id. As the court explained: ‘‘The affida-

vit before the court provided an insufficient basis for

a summary judgment because it did not resolve ‘the

mixed question of fact and law’ of whether the defen-

dant met the requisite standard of care under the cir-

cumstances, particularly those relating to whether he

had a reasonable opportunity to avoid the collision.’’

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Tran v. Woodworth

Id., 446; see also Plouffe v. New York, New Haven &

Hartford Railroad Co., 160 Conn. 482, 488–91, 280 A.2d

359 (1971) (reversing summary judgment rendered in

favor of defendants because affidavits submitted in sup-

port of motion for summary judgment did not contest

truth of all material allegations in complaint that were

denied by defendants); Rockwell v. Quintner, 96 Conn.

App. 221, 222–23, 899 A.2d 738 (because affidavit did not

dispose of all issues of material fact raised by complaint,

trial court improperly granted defendant’s motion for

summary judgment), cert. denied, 280 Conn. 917, 908

A.2d 538 (2006).

Similarly, in the present case, the evidence on which

the defendants relied in support of their motion for

summary judgment did not resolve the factual allega-

tions of negligence contested in the pleadings. For that

reason, we conclude that the court improperly rendered

summary judgment in favor of the defendants.

Because we conclude that the defendants did not

meet their burden in demonstrating the absence of a

genuine issue of material fact concerning the allegations

of negligence in the complaint, the burden of proof

never shifted to the plaintiff. See Rockwell v. Quintner,

supra, 96 Conn. App. 233. Nevertheless, the plaintiff did

submit the sworn, written statement of Watson, the sole

eyewitness to the accident, in support of his objection

to the motion for summary judgment. The court, having

determined that the defendants met their initial burden,

concluded that the plaintiff failed to submit any counter-

vailing evidence to demonstrate the existence of a genu-

ine issue of material fact, and the plaintiff challenges

that determination on appeal. See Allstate Ins. Co. v.

Barron, 269 Conn. 394, 409, 848 A.2d 1165 (2004)

(although defendants were not obligated to present doc-

uments in support of objection to motion for summary

judgment when documents submitted by plaintiff in

support of motion did not address crucial factual issue

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Tran v. Woodworth

in case, trial court nonetheless was entitled to consider

whether evidence supported claim). Even if we were

to conclude that the defendants met their initial burden,

Watson’s sworn statement

was sufficient to establish

the existence of a genuine issue of material fact con-

cerning the cause of the accident to preclude summary

judgment in this case.

In his sworn statement, Watson stated that he ‘‘was

traveling approximately 100 feet behind a gray Acura

going northbound and there was a red Buick coming

from the southbound direction. . . . When the red

vehicle was approximately 125 to 150 feet away from

me, it drifted into the northbound lane. The red vehicle

tried to correct itself, but it was too late, and there

was a head-on collision. After the vehicles collided, the

Acura ended up in the southbound lane and the Buick

ended up in the northbound lane.’’ As we previously

pointed out in this opinion, there is an inconsistency

We note that, pursuant to Practice Book § 17-45 (a), ‘‘[a] motion for

summary judgment shall be supported by appropriate documents, including

but not limited to affidavits, certified transcripts of testimony under oath,

disclosures, written admissions and other supporting documents.’’

Practice Book § 17-46 further provides in relevant part that ‘‘[s]upporting

and opposing affidavits shall be made on personal knowledge, shall set forth

such facts as would be admissible in evidence, and shall show affirmatively

that the affiant is competent to testify to the matters stated therein. . . .’’

Thus, Practice Book § 17-46 ‘‘sets forth three requirements necessary to

permit the consideration of material contained in affidavits submitted in a

summary judgment proceeding. The material must: (1) be based on personal

knowledge; (2) constitute facts that would be admissible at trial; and (3)

affirmatively show that the affiant is competent to testify to the matters

stated in the affidavit. . . . Affidavits that fail to meet the criteria of . . .

§ 17-46 are defective and may not be considered to support the judgment.’’

(Citation omitted; internal quotation marks omitted.) Atlantic St. Heritage

Associates, LLC v. Atlantic Realty Co., 216 Conn. App. 530, 550, 285 A.3d 1128

(2022). In their appellate brief, the defendants refer to Watson’s statement

as an affidavit and have not argued that it should not be considered by this

court. Because Watson made the statement on the basis of his personal

observation of the accident and the statement was signed and sworn to by

Watson; see footnote 6 of this opinion; the sworn statement is, in effect, an

affidavit and meets the criteria of § 17-46.

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Tran v. Woodworth

in Watson’s statement in that he asserts that he was

traveling behind the Acura in a northbound direction,

but the complaint alleges that the plaintiff, the operator

of the Acura, was traveling in a southbound direction,

and that fact was judicially admitted by the plaintiff.

See footnote 8 of this opinion. At oral argument before

the trial court on the motion for summary judgment,

the defendants’ counsel argued that Watson must have

been confused about which car he was following,

whereas the plaintiff’s counsel argued that Watson was

mistaken about his direction of travel. Both parties con-

tinue to make those assertions on appeal before this

court.

Watson was the sole eyewitness to the collision

between the plaintiff’s vehicle and that of the decedent.

He provided the police with a sworn, written statement

on the day of the accident shortly after it occurred. In

his statement, he asserted that, just prior to the colli-

sion, the driver of the red Buick drifted into the oncom-

ing lane, and that, although the driver tried to correct

that maneuver, it was too late, and the Buick and the

Acura collided. Watson also described in detail what

happened following the collision. We conclude that his

sworn statement constitutes sufficient countervailing

evidence to demonstrate the existence of an issue of

material fact concerning the cause of the collision. The

sworn statement of Watson, the sole eyewitness to the

accident, serves as direct evidence concerning the cir-

cumstances surrounding the accident, especially in light

of the fact that the plaintiff has no memory of what

occurred. See, e.g., Rawls v. Progressive Northern Ins.

Co., supra, 310 Conn. 786 n.12 (‘‘eyewitness . . . testi-

mony often serves as more compelling evidence’’); State

v. Cooper, 65 Conn. App. 551, 558, 783 A.2d 100 (victim’s

eyewitness testimony provided compelling direct evi-

dence that defendant was perpetrator), cert. denied,

258 Conn. 940, 786 A.2d 427 (2001). Whether Watson

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Tran v. Woodworth

was mistaken concerning the direction in which he

was traveling or about which vehicle he was following

concerns a factual matter to be determined by a jury

during a trial. See generally State v. Scott, 191 Conn.

App. 315, 328, 214 A.3d 871 (potential unreliability of

eyewitness identification testimony concerned weight

of evidence and not its admissibility, and it was question

for jury), cert. denied, 333 Conn. 917, 216 A.3d 651

(2019). The circumstances of the present case require

‘‘a trial [on] the issues of fact in which the trier would

be called on to determine the credibility of witnesses

and the weight to be given to their testimony. It is only

when the witnesses are present and subject to cross-

examination that their credibility and the weight to be

given to their testimony can be appraised.’’ (Internal

quotation marks omitted.) Spencer v. Good Earth Res-

taurant Corp., 164 Conn. 194, 199, 319 A.2d 403 (1972);

see also Doe v. West Hartford, 328 Conn. 172, 197, 177

A.3d 1128 (2018) (‘‘[w]hen deciding a summary judg-

ment motion, a trial court may not resolve credibility

questions raised by affidavits or deposition testimony

submitted by the parties’’).

As our Supreme Court has made clear, ‘‘[l]itigants

have a constitutional right to have issues of fact decided

by a jury. . . . Summary judgment procedure is espe-

cially ill-adapted to negligence cases, where, as here,

the ultimate issue in contention involves a mixed ques-

tion of fact and law, and requires the trier of fact to

determine whether the standard of care was met in a

specific situation. . . . [T]he conclusion of negligence

is necessarily one of fact . . . .’’ (Citation omitted;

internal quotation marks omitted.) Michaud v. Gurney,

168 Conn. 431, 434, 362 A.2d 857 (1975); see also Busque

v. Oakwood Farms Sports Center, Inc., 80 Conn. App.

603, 607, 836 A.2d 463 (2003), cert. denied, 267 Conn.

919, 841 A.2d 1190 (2004). The present case involves

such a situation in which factual issues exist concerning

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Tran v. Woodworth

the collision that preclude summary judgment. Even if

the collision occurred in the decedent’s lane, that does

not eliminate all allegations of negligence in the com-

plaint. For example, Watson asserted that the decedent

‘‘tried to correct [her]self, but it was too late,’’ which

relates to the plaintiff’s allegation in the complaint that

the decedent was negligent ‘‘[i]n that she failed to keep

her vehicle under proper and reasonable control

. . . .’’ As explained by our Supreme Court in Rawls

v. Progressive Northern Ins. Co., supra, 310 Conn. 779–

80, ‘‘a plaintiff may show negligence and causation in

a vehicle collision case by presenting evidence of the

type of collision, the road conditions, the weather, other

features of surrounding environment, the actions of the

drivers of any other vehicles involved, and the extent to

which the vehicles involved were damaged.’’ (Emphasis

added.) We conclude that Watson’s statement creates a

genuine issue of material fact concerning the decedent’s

actions prior to the collision.

Therefore, the trial court improperly granted the

defendants’ motion for summary judgment.

The judgment is reversed and the case is remanded

for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.