Helping Trial Lawyers Navigate the Appellate System

Summary Judgment Proper on Survival Claim

In Polk v. City of Killeen, the Third Court of Appeals has affirmed a take nothing summary judgment on the plaintiff’s survival claim.  What makes this otherwise run-of-the-mill decision interesting is that the claim arose from a collision between an ambulance transporting the decedent (who had been found unresponsive at his workplace) and another vehicle.  The court of appeals held that an emergency room physician’s affidavit testimony that the decedent was “unable to be brought back to life from the time he was first treated by Kileen Fire Department EMS” where he collapsed conclusively established that the decedent did not sustain an injury while he was alive.  Because the plaintiff had no controverting evidence, summary judgment was proper on both traditional and no-evidence grounds.

D. Todd Smith
About the Author

D. Todd Smith is an Austin-based civil appellate specialist who works with trial teams from the earliest stages of litigation. In trial courts, he takes the lead on strategic analysis and briefing, jury charges, and potentially dispositive motions, all with a focus on preserving error and positioning cases for appellate review.

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