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Competency and Motion for Summary Judgment Affidavits

In Pipkin v. Kroger, the Houston Court of Appeals decided that an affidavit executed by a child could be competent evidence to defeat a summary judgment. Shea Pipkin was shopping at a Kroger store with his ten-year old son, Roman, when he slipped and fell on water. Shea sued Kroger alleging that he had suffered a broken hip requiring surgery. However, Shea died of an unrelated condition a few months after filing his lawsuit, and his father, Roy Pipkin, became executor of the Estate. 

When Kroger filed a motion for summary judgment asserting that there was no evidence, the Estate filed a response and attached an affidavit from Roy Pipkin, stating that his son, Shea, was healthy before the fall and that his son told him that he slipped on the wet floor at Kroger because there were no wet floor signs.

Kroger objected to Roy Pipkin's affidavit arguing it violated the Dead Man's Rule found in Rule 601(b) of the Texas Rules of Evidence. The Estate argued that the testimony of Shea's son, now 12-years old, corroborated Roy Pipkin's affidavit that Shea fell on water and no wet floor signs were near the incident.

Kroger filed objections to the testimony of the child on the grounds that Roman was incompetent to provide an affidavit and he did not have personal knowledge of the facts. The trial court agreed and granted the Motion for Summary Judgment. The Estate appealed.

The Court of Appeals

As to the competency issue, the Court of Appeals held that every person is competent to be a witness unless they are shown to be incompetent. Under the Texas Rules of Evidence, a child is considered competent to testify unless, after the child is examined by the court, it appears to the court that the child does not possess sufficient intellect to relate the transactions about which he will testify.

The trial court, without actually examining Roman, found "an issue of comprehension" and questioned whether Roman understood what he was attesting to. As the trial court did not examine Roman, the Court of Appeals held that there is no evidence of the child's incompetency.

The second issue Kroger argued was that Roman did not have personal knowledge of the facts so his affidavit is legally insufficient. The Court of Appeals found that Roman's affidavit was based on personal knowledge because the child stated that he "was present at Kroger" and was "shopping with [his] father" when his father "slipped and fell." The Court believed this to be sufficient to show that Roman was testifying from personal knowledge, and reversed and remanded to the trial court

Tips and Take Aways

1. There is no age below which a child is automatically deemed incompetent to testify. The trial court will consider (1) the competence of the child to observe intelligently the events in question at the time of the occurrence; (2) the child's capacity to recollect the events; and (3) the child's capacity to narrate the facts.

2. When preparing affidavits, provide evidence that the affiant is testifying from personal knowledge. For example, how does the affiant k now what happened during the accident? Was it because they were present and watching it? Or, if their job position or title shows that they have knowledge as to company policies or procedures, make sure to include that in the affidavit. The key of an affidavit is personal knowledge.


Jennifer R. Ashmore is an Associate at The Bassett Firm. Ms. Ashmore's practice focuses on Transportation Litigation, Products Liability, Personal Injury, Premises Liability, and Family Law. She received her B.B.A. from Southwest Texas State University in 2001 and her J.D. from Texas Wesleyan University School of Law in 2004. 

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