INSTRUCTIONS FOR ESSAY EXAMS: You are presented with a hypothetical case plus research materials (provisions of law

and jurisprudence) that you may want to use in your work. The laws and jurisprudence accompanying the problems are designed to provide sufficient basis for preparing an excellent trial memorandum or legal opinion. But you are free to include such laws, rules and principles not provided that you feel will enhance your work. Choose the side of the dispute that you want to uphold and defend and prepare a trial memorandum in support of your side. Omit the case caption. Do not write more than four arguments. You have been given, apart from this Test Question, a Draft Pad, and an Answer Pad. Use the Draft Pad for making a draft of your memorandum. This will permit you to freely edit and rewrite your work. Editing and rewriting are essential to sound legal writing. The bells will be rung one hour before the end of the exam to signal the need for you to begin transferring your work to your Answer Pad. You may, of course, prefer to skip the preparation of a draft and write your essay directly on your Answer Pad. That is allowed. Quality of writing, not length is desired. You are free to jot notes or place helpful markings like underlines on the test questions and the enclosed materials. Corrections even on your final essay on the Answer Pad are allowed and will not result in any deduction. Still, it is advised that you write clearly, legibly and in an orderly manner. When the bell rings a second time to signal the end of the exam, your test questions, Draft Pad, and Essay Pad will be collected whether you are finished or not. The time pressure is a part of the exam. You will not be graded for a technically right or wrong answer but for the quality of your legal advocacy. The test is intended to measure your skills in: 1) communicating in English -- 20%; 2) sorting out the conflicting claims and extracting those facts that are relevant to the issue or issues in the case -- 15%; 3) identifying the issue or issues presented -- 15%; and 4) constructing your arguments and persuading your reader to your point of view -- 50%

PART 1 TRIAL MEMORANDUM: Jonna Bueno filed an action for damages of P500,000.00 against Gloria Supermart, Inc. before the Regional Trial Court of Quezon City for the injuries that her son, Ricky, suffered at its supermarket, for the expense, and for the emotional pain that it brought to him and his mother. Consider the following testimonies that the witnesses from either side presented at the trial of the case. Assume that you are the lawyer either for Bueno or for Gloria Supermart and write a trial memorandum for the side you have chosen to represent. You would want to convince the trial court to decide the case in your clients favor. ------------------------------------------------------------------------------------------------------------------------------Excerpts from Transcript of Stenographic Notes Bueno vs. Gloria Supermart, Inc., Civil Case No. 27-112011, Hearing of June 7, 2011. DIRECT EXAMINATION OF PLAINTIFFS WITNESS COURT STAFF: (After swearing in the witness) State your name and personal circumstances. WITNESS: I am Jonna Bueno, 35 years old, married, and a resident of 89 Little Baguio St., San Juan City, Metro Manila. I am an accountant. ATTY. REX BELTRAN: Your Honor, we are offering the testimony of Ms. Bueno to prove that her son, Ricky, slipped on the wet floor of Gloria Supermart by reason of the gross negligence of its management and employees, causing him to suffer excruciating pain from a fractured arm and undergo great discomfort and depression. Ms. Bueno herself incurred an enormous medical expense and suffered from mental stress. COURT: What do you say counsel? ATTY. EMIL SUNGA: Subject to cross, Your Honor. COURT: Proceed, Atty. Beltran. ATTY. BELTRAN: Q. Ms. Bueno, do you know the defendant Gloria Supermart? A. Yes, sir. Q. Why do you know it? A. I have been buying our groceries and other things from Gloria Supermart for the past 20 years. Q. Where is Gloria Supermart located? A. On Ortigas Avenue, San Juan, Metro Manila, just two blocks from our condominium. Q. Do you remember where you were at about 10 a.m. on May 11, 2010? A. Yes, Sir. Q. Where were you? A. I was at Gloria Supermart. Q. What were you doing there? A. I was about to cook spaghetti for my son Ricky when I realized I didnt have any tomato sauce so I went to Gloria Supermart to buy tomato sauce and some other things we needed in the house. Q. Did you have any companion? A. Yes, my boy Ricky. Q. How old was Ricky at that time? A. His birthday is May 2, 2005. He was 5 years old already. Q. How did you do your shopping for groceries with Ricky on tag? A. I had a cart. He would sometimes ride on it or walk along the aisles with me. At times, I will ask him to pick safe things from the shelves and put them in the cart. He also grabs goodies that he likes. Q. Do you remember anything unusual that happened while you and Ricky were picking up groceries at the shelves? A. Yes, a small ball rolled along the aisle and Ricky ran after it. Q. Was he able to catch the ball? A. No. Although Ricky had gone some distance down the aisle from where I stood, I saw him slip with a heavy bang on a wet section of the aisle.

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Q. What happened to him after he slipped? A. He shrieked from pain in his right wrist which he used to stop his fall. Q. What did you do after you saw Ricky fall down the floor, looking hurt? A. I immediately came to his side to help him. I also asked a store clerk who came around to help me carry Ricky to my car so I could bring him to the hospital. I did not get to finish my shopping. Q. Did the store clerk help you? A. Yes, Sir. But he was not very friendly. Afterwards, I brought Ricky to the Philippine Orthopedic Hospital. Q. You said that Ricky slipped on a wet floor section of the aisle. How did you know that the section you referred to was wet? A. I saw the puddle of liquid on the floor. Q. Did you get to know what kind of liquid it was? A. It was syrup that seeped out from a leaking bottle in a nearby shelf. Q. Was there any supermarket cleaner nearby when you came near that puddle of syrup? A. None sir. Q. Did you see any supermarket grocery clerk around? A. None, Sir. There should have been someone to warn people of that puddle of syrup on the floor. Q. Did you see any sign near that puddle or around it, warning customers of the danger it presents? A. None, Sir, although I heard someone shout, Hoy, bata, ingat! May basa diyan! ATTY. SUNGA: I move to strike out that testimony. It is hearsay. ATTY. BELTRAN: It is admissible as a res gestae statement, Your Honor. COURT: Strike out the answer. Q. You said that you brought your son, Ricky, to the Philippine Orthopedic Hospital, who attended to your son at the hospital? A. Dr. John D. Lim, an orthopedic surgeon. He was the physician at the emergency room. I think he is in his mid-forties. Q. You said it was his right wrist that Ricky complained of. How did you know that? A. He pointed to it while crying from pain. After we brought him to the Philippine Orthopedic Hospital, I saw the doctor operate on his right wrist to restore the position of a fractured bone. Later, the doctor showed me an x-ray picture of the wrist bone before and after the operation. Q. How long did Ricky stay in the hospital? A. The doctor required Ricky to stay overnight at the hospital for pain management and care. He ordered his release on the following day. Q. Based on your observation, how long did it take for Ricky to recover the use of his right wrist? A. About six weeks. Q. How did your son take these things that happened to him? A. He complained of great pain at the beginning. Later, he moved with discomfort and difficulty, unable to use both hands. Q. How about you, Ms. Bueno? How did you take these events? A. He is my son. I mentally suffered more pain than he did. He is my only son. I dont know what I would do if I lose him. My husband and I waited for years before we had Ricky. And then this happens. Q. How much expense, if any, did you incur for the hospitalization and medical treatment of Ricky? A. I spent P22,840.00 for doctors fee, hospitalization, and medicine. We also bought toys for Ricky to distract him from the pain that he suffered. We spent approximately P5,000.00. Q. Do you have evidence of these expenses? A. Yes, Sir, here are my receipts [Note: Assume that the marking and presentation of the receipts for the expenses mentioned above, although omitted here, were done right.] ATTY. BELTRAN: That is all for the witness. COURT: Cross. CROSS-EXAMINATION BY ATTY. SUNGA

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ATTY. SUNGA: Q. Ms. Bueno, you said that you brought your son Ricky to Gloria Supermart on May 11, 2010. Did you need him to be there whenever you buy your groceries? A. No, Sir, but I did not have anyone to leave him home with. Q. But when you took him there, you of course are aware that the supermarket did not have a leave-your-child service? A. Yes, Sir. Q. Consequently, you were aware that the responsibility for looking after Rickys needs and safety while in the supermarket is primarily in your hands as his mother? A. Yes, Sir, but supermarkets always expect children to come with their parents and so it has to make sure that the place is safe for children. Q. But do you agree that, as his mother, he is safer when he stays by your side in a public place like a supermarket? A. Yes, Sir. Q. Still, you let him slip away from your control, when he ran after that ball? A. Yes, Sir, but the supermarket should keep their eyes open for things like loose balls running down their aisles, drawing children away from their parents, and letting them slip on carelessly spilled liquids. Q. But did you not notice that the aisles of Gloria Supermart have sales clerks that attend to inquiries and needs of its customers? A. Not all the time. When my son had his accident, no one was around to prevent it from happening. ATTY. SUNGA: That is all, Your Honor. Excerpts from Transcript of Stenographic Notes Bueno vs. Gloria Supermart, Inc., Civil Case No. 27-112011, Hearing of June 14, 2011 DIRECT EXAMINATION OF DEFENDANTS WITNESS COURT STAFF: (After swearing in the witness) State your name and personal circumstances. WITNESS; I am Rene Castro, 55 years old, married, and a resident of 12 V.G. Cruz, Sampaloc, Manila. I am a supermarket supervisor. ATTY. EMIL SUNGA: Your Honor, we are offering the testimony of Mr. Castro to prove that Gloria Supermart exercised proper diligence in making its premises safe for its customers; that the accident involving Ricky was something it could not reasonably anticipate and so beyond its control; that, in any event, Ricky and her mother contributed to Ricky slipping on the floor and suffering physical injury and pain; and that Gloria Supermart provided immediate help and assistance to Ricky and her mother. COURT: What do you say counsel? ATTY. BELTRAN: Subject to cross, Your Honor. COURT: Proceed Atty. Sunga. ATTY. SUNGA: Q. Mr. Castro, you said that you are a supermarket supervisor. For whom do you work as supermarket supervisor? A. I have been with Gloria Supermart for 5 years already, Sir. Q. Do you know the plaintiff Jonna Bueno? A. Yes, Sir, she has been a customer at our supermarket. Q. Do you recall seeing her at your supermarket about 10 a.m. on May 11, 2010? A. Yes, Sir. Q. Why do you recall seeing her there at that time and on that date? A. Because her son Ricky had an accident and I was around. Q. Did you see how the accident happened? A. No, Sir, but I was just at the next aisle fixing the new stocks of instant noodles. When I heard the commotion, I quickly walked down there and saw Ricky lying on the floor, crying with pain. Her mother, Ms. Bueno, was trying to minister to him. Q. What else did you see? A. Some items from a nearby shelf had fallen down the floor. Q. What were these items? A. There were a couple of bottles of syrup, mostly in plastic bottles, except one glass bottle that had broken and spilled part of its contents on the floor. Q. To what do you account this?

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A. I could infer from the position of Ricky that he bumped into the shelf containing syrup bottles and knocked off some of them. Q. Did you speak to Ms. Bueno about it? A. I talked to her at the hospital while we were waiting for Rickys treatment to be finished and I asked her what happened. Q. What did she say? A. She said that Ricky saw a ball rolling down the aisle and he ran after it. Somehow, he slipped on the floor and hurt his arm. She was so flustered. Q. Are children allowed in your supermarket? A. All supermarkets allow customers to bring their children into the store. It is often a necessity for them. It is understood of course that their parents would look after them, preventing them from misbehaving, causing damage to the merchandise, or getting injured. Q. Ms. Bueno said that Ricky slid on the floor because some syrup seeped out of a leaking bottle in one of the shelves. Do you know anything about it? A. Yes, sir. What she said is not true. The syrup must have come from one of the bottles that Ricky knocked off from the shelf when he ran wild down the aisle, supposedly running after a loose ball. There can be no other explanation. Q. What did you do then? A. I helped Ms. Bueno pick up Ricky, intending to bring him to a hospital but his mom insisted that we take him to her car so she can drive him quickly to the hospital. I carried Ricky to her car and accompanied them to the hospital. Q. Did Ms. Bueno tell you anything while you were in the car? A. She was blaming the supermarket for the accident. Q. Did you reply to her? A. No, Sir, I said nothing to upset her because she was driving and was worried about her child. ATTY. SUNGA: That is all, Your Honor. CROSS-EXAMINATION BY ATTY. BELTRAN ATTY. BELTRAN: Q. Mr. Castro, You said that you did not actually see the accident when it happened, is that right? A. Yes, Sir. Q. In fact, you were in another aisle at that time? A. Yes, Sir. Q. So when you said that Ricky bumped into the shelf containing syrup bottles and knocked off some of them, you were merely speculating on what could have happened, right? A. Yes, Sir, but the scene suggested it. Q. Since you did not see what actually happened at that aisle, is it possible for some other person to have knocked off those bottles? A. Yes, Sir, that is possible but not likely since I did not see any person leave the place in haste. Q. So, it is also possible that the syrup on the floor, spilled by someone else, caused Ricky to slip as he was running after some ball before you showed up? A. Yes, that is possible, but unlikely. The shelves are carefully stocked. Q. Do accidents resulting in injury happen in your supermarkets? A. Yes but not so often; about one accident a year, if I remember right. These things are unavoidable because hundreds of people come to the supermarket everyday. Q. How about shoplifting, does this happen often? A. Every now and then, Sir. Its normal for supermarkets. Q. So naturally you must have some procedure for dealing with events like accidents or shoplifting? A. Yes, Sir. Q. To protect your rights and interests, is that correct? A. Yes, Sir. Q. Since Ricky had this serious accident that you claim was not your fault as the scene suggested, did your supermarket bother to take pictures of the puddle on the floor and the bottles of syrup that you said Ricky had knocked off? A. No, Sir. ATTY. BELTRAN: That is all for the witness.

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LAWS AND JURISPRUDENCE FAMILY CODE

PARENTAL AUTHORITY ART. 209. Pursuant to the natural right and duty of parents over the person and property of their unemancipated children, parental authority and responsibility shall include the caring for and rearing of such children for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being. Art. 20. Parental authority and responsibility may not be renounced or transferred except in the cases authorized by law. Art. 220. The parents and those exercising parental authority shall have with respect to their unemancipated children or wards the following rights and duties: (1) To keep them in their company, to support, educate and instruct them by right precept and good example, and to provide for their upbringing in keeping with their means; xxx xxx xxx (8) To impose discipline on them as may be required under the circumstances; and (9) To perform such other duties as are imposed by law upon parents and guardians. Art. 221. Parents and other persons exercising parental authority shall be civilly liable for the injuries and damages caused by the acts or omissions of their unemancipated children living in their company and under their parental authority subject to the appropriate defenses provided by law. CIVIL CODE

PERSONAL LIABILITY Art. 20. Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same. NUISANCE Art. 694. A nuisance is any act, omission, establishment, business, condition of property, or anything else which: (1) Injures or endangers the health or safety of others; or xxx xxx xxx Art. 697. The abatement of a nuisance does not preclude the right of any person injured to recover damages for its past existence.

Attractive Nuisance One who maintains on his premises dangerous instrumentalities or appliances of a character likely to attract children in play, and who fails to exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable to a child of tender years who is injured thereby, even if the child is technically a trespasser in the premises. (Hidalgo Enterprises, Inc., v. Balandan, et al., L-3422, June 13, 1952, 91 Phil. 488)

QUASI-DELICTS Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-

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existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. An accident pertains to an unforeseen event in which no fault or negligence attaches to the defendant. xxx On the other hand, negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do. xxx Accident and negligence are intrinsically contradictory; one cannot exist with the other. Accident occurs when the person concerned is exercising ordinary care, which is not caused by fault of any person and which could not have been prevented by any means suggested by common prudence. (Jarco Marketing Corporation v. Court of Appeals, G.R. No. 129792, December 21, 1999, 321 SCRA 375) The doctrine of res ipsa loquitor applies where (1) the accident was of such character as to warrant an inference that it would not have happened except for the defendant's negligence; (2) the accident must have been caused by an agency or instrumentality within the exclusive management or control of the person charged with the negligence complained of; and (3) the accident must not have been due to any voluntary action or contribution on the part of the person injured. (Child Learning Center, Inc. v. Tagorio, G.R. No. 150920, November 25, 2005, 476 SCRA 236) The test for determining whether a person is negligent in doing an act whereby injury or damage results to the person or property of another is this: could a prudent man, in the position of the person to whom negligence is attributed, foresee harm to the person injured as a reasonable consequence of the course actually pursued? (Philippine National Construction Corporation v. Court of Appeals, G.R. No. 159270, August 22, 2005, 467 SCRA 569) Art. 2179. When the plaintiff's own negligence was the immediate and proximate cause of his injury, he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the defendant's lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded. Contributory negligence is conduct on the part of the injured party, contributing as a legal cause to the harm he has suffered, which falls below the standard which he is required to conform for his own protection. xxx xxx xxx It is an act or omission amounting to want of ordinary care on the part of the person injured which, concurring with the defendants negligence, is the proximate cause of the injury. (National Power Corporation v. Heirs of Noble Casionan, G.R. No. 165969, November 27, 2008, 572 SCRA 71) Proximate cause is defined as that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. (Ramos v. C.O.L. Realty Corporation, G.R. No. 184905, August 28, 2009, 597 SCRA 526) Art. 2180. The obligation imposed by Article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. xxx xxx xxx The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions. xxx xxx xxx The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage. DAMAGES

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Art. 2197. Damages may be: (1) Actual or compensatory; (2) Moral; (3) Nominal; (4) Temperate or moderate; (5) Liquidated; or (6) Exemplary or corrective. Art. 2199. Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages. Art. 2203. The party suffering loss or injury must exercise the diligence of a good father of a family to minimize the damages resulting from the act or omission in question. Art. 2214. In quasi-delicts, the contributory negligence of the plaintiff shall reduce the damages that he may recover. The underlying precept on contributory negligence is that a plaintiff who is partly responsible for his own injury should not be entitled to recover damages in full but must bear the consequences of his own negligence. (National Power Corporation v. Heirs of Noble Casionan, G.R. No. 165969, November 27, 2008, 572 SCRA 71) In Phoenix Construction, Inc., v. Intermediate Appellate Court, where we held that the legal and proximate cause of the accident and of Dionisios injuries was the wrongful and negligent manner in which the dump truck was parked but found Dionisio guilty of contributory negligence on the night of the accident, we allocated most of the damages on a 20-80 ratio. In said case, we required Dionisio to bear 20% of the damages awarded by the appellate court, except as to the award of exemplary damages, attorneys fees and costs. (Estacion v. Bernardo, G.R. No. 144723, February 27, 2006, 483 SCRA 222) Art. 2217. Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendant's wrongful act for omission. Art. 2219. Moral damages may be recovered in the following and analogous cases: xxx xxx xxx (2) Quasi-delicts causing physical injuries; xxx xxx xxx RULES OF COURT EVIDENCE Sec. 36.Testimony generally confined to personal knowledge; hearsay excluded. A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as otherwise provided in these rules. Where the statements or writings attributed to a person who is not on the witness stand are being offered not to prove the truth of the facts stated therein but only to prove that those statements were actually made or those writings were executed, such evidence is not covered by the hearsay evidence rule.(Cornejo, Sr., vs. Sandiganbayan, G.R. No. 58831, July 31, 1987, 152 SCRA 559) Under the doctrine of independently relevant statements, only the fact that such statements were made is relevant, and the truth or falsity thereof is

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immaterial. The hearsay rule does not apply. (People v. Gumimba et al., G.R. No. 174056, February 27, 2007, 517 SCRA 25) Sec. 42.Part of res gestae. Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of res gestae. xxx A declaration made spontaneously after a startling occurrence is deemed as part of the res gestae when (1) the principal act, the res gestae is a startling occurrence; (2) the statements were made before the declarant had time to contrive or devise; and (3) the statements concern the occurrence in question and its immediately attending circumstances. (Zarate v. Regional Trial Court, Branch 43, Gingoog City, Misamis Oriental, G.R. No. 152263, July 3, 2009, 591 SCRA 510) Sec. 48.General rule. The opinion of witness is not admissible, except as indicated in the following sections. Sec. 3.Disputable presumptions. The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence: xxx (d)That a person takes ordinary care of his concerns; (q)That the ordinary course of business has been followed; (y)That things have happened according to the ordinary course of nature and ordinary nature habits of life; In every tort case filed under Article 2176 of the Civil Code, plaintiff has to prove by a preponderance of evidence: (1) the damages suffered by the plaintiff; (2) the fault or negligence of the defendant or some other person for whose act he must respond; and (3) the connection of cause and effect between the fault or negligence and the damages incurred. (Child Learning Center, Inc. v. Tagorio, G.R. No. 150920, November 25, 2005, 476 SCRA 236)

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MEMORANDUM FOR THE PLAINTIFF

Plaintiff, through counsel, respectfully submits this memorandum to wit: PREFATORY STATEMENT Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same (Art. 20, Civil Code). STATEMENT OF THE CASE This is an action for damages filed by Jonna Bueno against Gloria Supermart Inc., for the injuries that her son, Ricky suffered at its supermarket. Ms. Bueno claims P500,000.00 damages against Gloria Supermart Inc. for the expense and for the emotional pain that it brought to her son. STATEMENT OF FACTS Jonna Bueno, the plaintiff is the mother of Ricky, who is her only son. Ricky who is 5yrs old went with his mother shopping at Gloria Supermart at about 10am on May 11, 2010. Plaintiff have been buying her groceries and other things from Gloria Supermart located just two blocks from her condominium for the past 20 years. It was on this occasion on May 11, 2010 at about 10am that his son, Ricky, slipped on the wet floor of Gloria Supermart. The plaintiff alleged that her son ran to catch a ball along the aisle and he slipped on the wet section of the aisle. Henceforth, Ms. Bueno is blaming the management of the Gloria Supermart due to its gross negligence causing his son to suffer excruciating pain from a fractured arm which caused his son great discomfort and depression. Ricky was brought to the Orthopedic Hospital and was attended to by Dr. John Lim, an orthopedic surgeon. It took six (6) weeks for Ricky to recover the use of his right wrist. Upon investigation Ms. Bueno alleged that when Ricky fell down the floor, she didnt see any supermarket cleaner nearby nor any sign near the puddle of syrup on the floor warning customers of the danger if presents. The defendant, Rene Castro, who is the supermarket supervisor for 5yrs of Gloria Supermart Inc., alleged during the investigation that the Supermart should not be blamed for the accident that happened to Ricky because it exercised proper diligence in makings its premises safe for its customers; that the accident involving Ricky was something it could not reasonably anticipate and so beyond its control and that Ricky and her mother contributed to Ricky slipping on the floor. Castro further stated that Ricky could have bumped into the shelf containing syrup bottles and knocked off some of them which caused the syrup to be spilled on the floor. When asked if he actually saw Ricky bump on the shelves, Castro stated that he was just merely speculating it. ISSUES:

(1) Whether or not Gloria Supermart exercised proper diligence in making its premises safe for its customers. (2) Whether or not Rickys accident was through his own contributory negligence; (3) Whether of not the plaintiff is entitled to the damages that she is claiming for. ARGUMENTS/DISCUSSIONS: Gloria Supermart Inc. did not exercise proper diligence in making its premises safe for its customers. Diligence on the part of Gloria Supermart Inc. should not be presumed but should be proven that its management and employees were not grossly negligent in making its premises safe for its customers. As stated in Sarco Marketing Corp. vs. Court of Appeals, negligence is the omission to do something which is a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do. In the instant case, there was negligence on the part of the Supermart since it failed to install any warning sign on the puddle of syrup on the floor, warning the customers of the due consequences thereof. Furthermore, in any big grocery stores such as the Gloria Supermart, there should always be a standby floor cleaner who will eventually mop the floor in case there is liquid in it since it is fact that a fitted or cemented floor is usually slippery when wet. There was no supermarket cleaner nearby when Ricky slipped on the floor was was alleged by Ms. Bueno during the investigation, hence proving the negligence of the management in making the premises safe. The doctrine of res ipsa loquitor applies where (1) the accident was of such character as to warrant an inference that it would not have happened except for the defendants negligence; (2) the accident must have been caued by an agency or instrumentality within the exclusive management or control of the person charged with the negligence complained of and (3) the accident must have been due to any voluntary action or contribution on the part of the person injured (chilled Learning Center Inc., b. Tagorio, GR No. 150920, Nov. 25, 2005, 476 SCRA236) In this case, it was evident that the accident would have happened if it were not for the defendants negligence because it did not immediately wipe the spilled syrup. The cause of the accident was as well within the exclusive management and control of the person charged with the negligence complained of because Mr. Castro could have assigned a floor cleaner in the area and the accident was not due to any voluntary action or contribution on the part of the person injured as will be proven in the succeeding paragraphs. Therefore, Gloria Supermart Inc. was grossly negligent in making its premises safe for its customers.

(2) THE ACCIDENT OF RICKY WAS NOT THROUGH HIS OWN CONTRIBUTORY NEGLIGENCE. As was alleged by Mr. Castro during the investigation, Ricky bumped into the shelf containing the syrup bottles and knocked off such bottles thus causing the spilling of the liquid on the floor. This was not, however, proven by Mr. Castro because he did not actually see Ricky bump into the shelf. Mr. Castro was merely speculating it as what he has stated during the investigation. As based on Rules on Evidence Sec. 36, a witness can testify only to those facts which he knows of his personal knowledge. Therefore, it cant be said that Rickys accident was due to his own contributory negligence. As stated in National Power Corp.vs. Heirs of Noble Casionan, contributory negligence is conduct on the part of the injured party contributing as a legal cause to the harm he has suffered which falls below the standard which is required to conform for his own protection. It is an act or omission amounting to want of ordinary care on the part of the person injured which concurrig with the defendants negligence, is the proximate cause of the injury. In the instant case, the defendants negligence of not wiping the wet floor was the proximate cause of Rickys injuries. Proximate cause is defined as that cause which, in natural or continous sequence, unbroken by any efficient cause produces the injury and without which the result would not have occurred. (ramos vs. C.O.L Realty Corp. G.R. No. 184905, Aug. 28, 2009, 597 SCRA 526). The proximate cause of Rickys injury was the puddle of syrup on the floor which caused him to slide. The owners and managers therefore of the establishment are likewise responsible for damages. (4) THE PLAINTIFF IS ENTITLED TO THE DAMAGES SHE IS ASKING FOR. In every tort case filed under Art. 2176 of the Civil Code, plaintiff has to prove by a preponderance of evidence: (1) the damages suffered by the plaintiff; (2) the fault or negligence of the defendant or some other person whose act he must respond and (3) the connection of cause and effect between the fault or negligence and the damage incurred. (Child learning Center Inc. v. Tagorio) In the instant case, the plaintiff was able to prove the damages suffered since the child Ricky was hospitalized and was operated on his wrist and it took 6 weeks for the child to recover. Likewise, the fault or negligence of the defendant was also proven in that it failed to exercise the diligence of a good father of a family to prevent the damage and there was a connection between the cause and effect between the fault or negligence and the damage incurred. Moral damages can also be claimed by Ms. Bueno because of the physical suffering, mental anguish, shock, social humiliation and similar injuries which Ricky has suffered.

Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages. And Ms. Bueno is entitled to such as shown by her hospital bills and receipts. WHEREFORE, premises considered, it is prayed to this HONORABLE COURT, that judgement be rendered making Gloria Supermart Inc., liable for damages for the injury suffered by Ms. Buenos son. Other relief just and equitable is likewise prayed for. Quezon City, November 27, 2011.

Atty. A Counsel for the Plaintiff

Republic of the Philippines REGIONAL TRIAL COURT National Capital Region Branch ___, Quezon City

JONNA BUENO Plaintiff, - versus GLORIA SUPERMART, INC. Defendant. x---------------------x

Civil Case No. 27-112011 For Damages

MEMORANDUM FOR PLAINTIFF Plaintiff, by counsel, respectfully states that: STATEMENT OF THE CASE Plaintiff Jonna Bueno (hereinafter Jonna) filed the present action for damages against Defendant Gloria Supermart, Inc. (hereinafter Gloria Supermart). Jonna attributes the injuries suffered by her minor son to Gloria Supermarts gross negligence in failing to make its premises safe for customers, thereby making it liable under Art. 2176 and Art. 2180 of the Civil Code. Defendant maintain that whatever injuries and expenses that were incurred by the Bueno family can be attributed to Jonnas failure to supervise her child. STATEMENT OF THE FACTS 1. On May 11, 2010, Jonna and her minor child, 5-year old Ricky, went to Gloria Supermart at around 10 a.m. in order to shop for groceries. 2. While negotiating the aisles in the supermarket, Rickys attention was captured by a small red ball that was rolling on the floor. Being but a child of tender years, possessed of the immature disposition of individuals of that age, it was no surprise that Ricky chased after the ball down the aisle and away from Jonna. 3. It was at this point that Ricky suddenly slipped and fell because he had stepped on a wet section of the aisle. Liquid syrup had seeped out from a bottle located on a nearby shelf and had formed a puddle on the floor. 4. Jonna immediately rushed to her sons side. Ricky was crying in pain and pointing to his right wrist. 5. Jonna called for help as there were no nearby store clerks. Rene Cstro (hereinafter Rene), the supermarket supervisor eventually came over from another aisle in order to help out. 6. There were no signs and devices that would warn shoppers that an area of the floor was wet. There were no nearby cleaners or janitors wiping up the liquid. In fact, the only nearby Gloria Supermart personnel was Rene in the next aisle and even he seemed unaware that a hazard existed on the other side of the shelves.

7. With the aid of Rene, Jonna managed to bring her child to the Philippine Orthopedic Hospital where Ricky was attended to by Dr. John Lim. Ricky was subjected to an x-ray and it was discovered that surgery was necessary in order to restore the position of a fractured bone in his right wrist. 8. Said surgery in fact took place and Ricky was thereafter required to stay overnight at the hospital for purposes of pain management and care. He was discharged the following day. 9. Ricky recovered the full use of his hand only after a period of 6 weeks. In that span of time, he moved with discomfort and difficulty, unable to use his hands. 10. Since the date of Rickys injury and even during his recuperation period, Jonna suffered the mental anguish, fright and serious anxiety of a mother who was confronted with the injury of a beloved child. 11. In addition to the physical suffering suffered by Ricky and the mental and emotional strain on Jonna, they were further aggrieved because they had to spend P22,840.00 in doctors fees, hospitalization expenses, and medicine, as evidenced by receipts, marked as ANNEX ____. 12. On the other hand, Gloria Supermart, through Rene, claims that it exercised proper diligence in making the premises safe and that ultimately Jonna was the one who failed to supervise Ricky. It denied liability for all damages. ISSUES Given the foregoing facts and circumstances, the following issues are presented for discussion: 1. Whether or not Gloria Supermart may be held liable for the commission of a quasi delict under Art. 2176 and Art, 2180 of the Civil Code. 2. Whether or not Gloria Supermart may be held liable for damages. ARGUMENTS I. Gloria Supermart is liable for the commission of a quasi delict that was the proximate cause of Rickys injuries. A. The proximate cause of the injuries that Ricky suffered was the negligence of Gloria Supermarts employees. 1. Art. 2176 provides that whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for damage done. In the case of Child Learning Center, Inc. v. Tagorio (G.R. No. 150920, Nov. 25, 2005), the Supreme Court stated that in order to establish a quasi-delict case under this provision, the plaintiff must prove by a preponderance of evidence: (1) the damages suffered by the plaintiff; (2) the fault or negligence of the defendant or some other person for whose acts he must respond; and (3) the connection of cause and effect between the fault or negligence and damages incurred. (supra) 2. All three conditions obtain in the present case. 3. It is undisputed that Ricky broke his wrist when he slipped and fell on a puddle of liquid syrup that was on the floor of Gloria Supermarts premises. It was the presence of this syrup that was the proximate cause of Rickys injury. Proximate cause is defined

as that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. (Ramos v. C.O.L. Realty Corporation, G.R. No. 184905, Aug. 28, 2009). It is submitted that Ricky would not have fallen and broke his wrist if he had not slipped on the syrup. 4. The question now is, is his act of slipping on the syrup an accident or is the syrups presence on the floor an act of negligence that may be attributed to Gloria Supermarts employees? If the proximate cause was an accident, clearly no liability can attach to Gloria Supremart. On the other hand, if the proximate cause is the latters negligence, it may properly held liable under the provisions of the Civil Code. 5. An accident pertains to an unforeseen event in which no fault or negligence attaches to the defendant. On the other hand, negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would do. (Jarco Marketing Corp. v. Court of Appeals, G.R. No. 129792, Dec. 21, 1999) 6. Applying the law to the present case, it is clear that Rickys injury was not caused by accident. As earlier mentioned, Ricky broke his wrist because he slipped and fell due to liquid syrup that was seeping from a bottle located on the supermarket shelves. Clearly, the liquid should not have been on the floor as common sense would indicate that it posed a threat to even the most careful of individuals walking past. Anybody could have slipped and fallen on the syrup. 7. The mere presence of the syrup on the floor already negates Gloria Supermarts claim that it exercised proper diligence in making its premises safe. Based on its past experience as admitted by Rene, similar accidents have previously occurred. Thus, it could have easily foreseen that such an accident could happen again. Failure to take the proper precautions in guarding against such a mishap is an act of negligence on the part of Gloria Supermarts employees. 8. Specifically, Rene, as store supervisor, could have been more vigilant in patrolling the aisles for spills or the presence of similar hazards. He failed the test for determining whether a person is negligent that was laid out by the Supreme Court in the case of Philippine National Construction v. CA (G.R. No. 159270, Aug. 22, 2005). The test in that case requires a person to act as a prudent man in a similar position and fails to take the proper precautions against foreseeable harm. He has already had 5 years of experience in handling the incidents of the supermarket and yet he did nothing. 9. Moreover, signs and warning devices which would inform shoppers that a hazard was present were noticeably absent. This oversight evidences even the want of ordinary care on the part of Rene and the other supermarket employees. 10. Rene and the other employees negligence in patrolling the aisles and placing proper warning signs/devices is further supported by the fact that, as earlier mentioned: 1) similar accidents often happen, and 2) they knew that children often accompany their parents to the supermarket. Having advance notice of these facts, they cannot now claim that Rickys injury was an unforeseeable accident. B. Gloria Supermart may be held liable for the negligent acts or omissions of its employees under Art. 2180 of the Civil Code.

11. Art. 2180 provides that the obligation imposed by Art. 2176 is demandable not only for ones own acts or omissions, but also for those of persons for whom one is responsible. Said article further provides that the owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions. 12. Applying the foregoing to the present case, it is clear that Rene and other employees on duty that day were at that time in the service of Gloria Supermart, performing their regular functions and duties. 13. In order to escape liability for its employees negligent acts, Gloria Supermart must show that it observed the diligence of a a good father of the family to prevent the damage. 14. Unfortunately, Gloria Supermart has failed to show that it exercised such degree of diligence in supervising Rene and the other employees. The testimonies on record do not show that it was store policy to take extra precautions against spills and other mishaps which occur in the ordinary course of a supermarket business. The testimonies on record also indicate an absence of institutional concern for the safety and well being of children that they knew often accompanied their parents in the store. In fact, Rene testified that children were the sole responsibility of their parents. While this may be true to a certain extent, considering that Art. 209 of the Civil Code provides that authority over minor children are with the parents, Gloria Supermart could have, by exercising ordinary care, prevented or at least minimized the possibility of mishaps occurring. The prevention and removal of hazards like the syrup on the floor is a duty that falls squarely within its area of responsibility. Moreover, children cannot be held to the same exacting standards of diligence that are attributed to an adult. Children of tender years like Ricky, are obviously at greater risk from hazards. Despite Gloria Supermarts knowledge and awareness of childrens presence on its premises, it did not exercise the diligence of a good father of the family in making sure that it took extra care to supervise and instruct its employees in minimizing the risk. 15. All told, it is evident that all the conditions of a quasi delict obtain in the present case: Ricky suffered an injury which in the ordinary course of events would not have happened had it not been for the negligence of Gloria Supermarts employees in preventing the occurrence of spillages and other ordinary store incidents and subsequently, in not promptly cleaning up the spilled liquid syrup and in not placing signs and other warning devices. Gloria Supermart itself was liable for the acts of its employees because it failed to exercise the diligence of a good father of the family in making sure that it was company policy to take precautions against foreseeable accidents, including those that would involve children. Assuming there was such a policy it was negligent in supervising its employees to ensure that they adhered to such standards and policies. II. Gloria Supermart is liable for the payment of damages. 1. Art. 20 of the Civil Code provides that every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same. Moreover, Art. 2176 also obliges the party responsible for the quasi delict to pay for the

damage done. Here, the negligence of Gloria Supermart has been clearly established. Hence, it cannot escape liability for the payment of damages. A. Gloria Supermart is liable for the payment of actual damages. 2. Except as provided by law or by stipulation, one is entitled to an adequate compensability for such pecuniary loss suffered by him as he has duly proved. (Art. 2199, Civil Code) 3. Jonna incurred P22,840 in doctors fees, hospitalization expenses and medicine, which are properly documented by receipts (ANNEX A). These expenses would not have been incurred had the accident not happened as a result of Gloria Supermarts negligence in making sure that its premises were safe and secure. B. Gloria Supermart is liable for the payment of moral damages. 4. Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. (Art. 2217, Civil Code) The article further provides that though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendants wrongful act or omission. (supra) 5. The facts bear out the claim that Jonna suffered mental anguish, fright and serious anxiety when she saw her son injured and in pain. Her emotional and mental state is directly connected with the fact that her son slipped, fell and broke his wrist due to the negligence of Gloria Supermart and its employees. 6. A mother is naturally concerned over the health and well being of her child. Hence, one can only imagine the suffering that she had to go through when she saw her child slip and fall, undergo surgery and continue to suffer pain and discomfort for 6 weeks after he was discharged from the hospital. 7. Ricky himself had to endure a significant amount of physical suffering as a result of his broken wrist. Moral damages can also be recovered for such injuries suffered as a consequence of quasi delict because the law (Art. 2219, Civil Code) treats it as an analogous circumstance to those instances in Art. 2217 for which moral damages may be properly claimed. 8. Note that in addition to the pain he suffered on the day of the injury, such pain lasted even up to 6 weeks after the surgery, during which time, he had limited range of movement in his hands and was also forced to deal with a significant amount of discomfort. C. Even assuming there was also negligence on the part of Jonna, such was only contributory and will not negate the award of damages. 9. The proximate cause of Rickys injury and the Bueno familys subsequent suffering is still Gloria Supermarts negligence. 10. Hence, Gloria Supermart should still be primarily liable for the payment of damages. 11. Assuming Jonna should have taken greater care in looking after Ricky, this still does not make her negligence the proximate cause because an accident would still not necessarily have occurred without the efficient intervening cause of the liquid on the floor. 12. Contributory negligence, if there is any, will only serve to reduce the damages that may be recovered by Jonna.

PRAYER WHEREFORE, premises considered, it is respectfully prayed that judgment be rendered in favor of plaintiff and against defendant by: 1) FINDING Gloria Supermart liable for the commission of negligent acts under Art. 2176 & 2180 when it failed to maintain safe premises for its customers; causing injury to Ricky. 2) ORDERING Gloria Supermart to pay both actual damages of P22,840, and moral damages in an amount this Honorable Court finds just and reasonable under the circumstances. Other just and equitable remedies under the circumstances are likewise prayed for. Quezon City, November 27, 2011. (Sgd.) ATTY. REX BELTRAN Counsel for Plaintiff Address: IBP No: PTR No: Roll No: MCLE No: Copy furnished: ATTY EMIL SUNGA Counsel for Defendant EXPLANATION In view of time and manpower restrictions, the above Memorandum was served via registered mail as personal service could not be availed of without causing undue hardship to plaintiff. (Sgd.) ATTY. REX BELTRAN Counsel for Palintiff

TRIAL MEMORANDUM FOR PLAINTIFF STATEMENT OF THE CASE This case is an action for damages filed by Jonna Bueno, Plaintiff, against Gloria Supermart, Inc., Defendant, before this Honorable Court for the injuries her son, Ricky, suffered at its premises, for the expense, and for the emotional pain that it caused Plaintiff and her son. STATEMENT OF THE FACTS Plaintiff, through counsel, respectfully states that: 1) Plaintiff is Jonna Bueno, 35 years of age, married, and a resident of 89 Little Baguio St., San Juan City, Metro Manila; Defendant is Gloria Supermart, Inc. with address at Ortigas Avenue, San Juan, Metro Manila. 2) On 11 May 2011 at about 10:00 AM, Plaintiff and her son Ricky went to Defendants store to purchase tomato sauce for her sons spaghetti where there occurred an unfortunate turn of events. 3) While shopping, Ricky saw a small ball rolling down an aisle. Young at the age of five, the childs attention was caught by the plaything. 4) Coming after the ball, Ricky did not notice that there was a puddle in the aisle where he slipped with a heavy bang. 5) Feeling pain in his right wrist, Ricky was immediately brought by plaintiff to the Philippine Orthopedic Hospital where he was treated. 6) Ricky suffered a bone fracture due to the incident and took him six weeks to recover. 7) Plaintiff incurred hospital expenses amounting to P22,840.00, which includes the doctors fee and medication. 8) The expenses do not yet cover the mental anguish suffered by the mother and child; the mother from the risk of losing her own son and Ricky from the six weeks of recovery he had to undergo aside from the physical pain. 9) From the testimony of Plaintiff (TSN dated 7 June 2011), her allegations are as follows: a) Defendants employees are guilty of negligence when they did not clean up the aisles to remove injurious materials. b) As the owner of the establishment, Defendant should be made liable for the injuries caused by its negligent employees in the service of the branch.

c) Defendant should be made liable for actual and moral damages for the expenses incurred and the emotional suffering undergone by Plaintiff and her child. 10) Defendants allegations, on the other hand, based on the testimony given by their supermarket supervisor, Rene Castro, are as follows: a) Plaintiff was guilty of negligence when she did not properly watch over her son. b) Plaintiff retained her parental authority and was no t transferred to Defendant. Plaintiff therefore should be responsible for the actions of the child under her care. c) The event was an accident since it could not have been foreseen. Defendant should not have been held liable. (TSN, 14 June 2011) ISSUES I. WHETHER OR NOT DEFENDANTS EMPLOYEES NEGLIGENCE IS THE PROXIMATE CAUSE OF THE INJURIES SUSTAINED WHETHER OR NOT DEFENDANT CAN BE MADE LIABLE UNDER THE DOCTRINE OF IMPUTED LIABILITY WHETHER OR NOT PLAINTIFF WAS NEGLIGENT WHETHER OR NOT PLAINTIFF IS ENTITLED TO DAMAGES ARGUMENTS I. Defendants employees failed to observe due diligence in performing their functions. 11) Art. 2176 of the New Civil Code provides in sum that whoever by act or OMISSION causes damage to another, there being fault or NEGLIGENCE is obliged to pay for the damage done. (emphasis added)

II.

III. IV.

12) To be liable then, the act or omission should be the proximate cause of the damage. 13) Proximate cause is that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred (Ramos v. C.O.L. Realty Corp., 597 SCRA 526).

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In the case at bar, there is an omission on the part of the employees when they failed to clean up the aisle when their merchandise leaked and formed a puddle. The employees should have been vigilant in preventing injuries from happening and this includes maintaining a safe environment.

15) In failing to maintain a safe environment for the hundreds of shop goers, as claimed by Defendants own witness, Defendant then unduly exposes these hundreds of people to injury, just like what happened to Ricky. 16) Had the aisle been properly maintained, Ricky would not have been slipped and suffered from the fall. Without the puddle, there would have been no injury. The omission then on the part of the Defendants employees is the proximate cause of the injury sustained. It cannot be said that Defendants employees observed due diligence. In fact, Defendants own witness would belie such claim. As stated by the witness, Rene Castro in his testimony, this type of incident happens at least once a year. It then baffles Plaintiff why Defendant does not impose a stricter policy to ensure that such events never occur. What happened to Ricky, after all, could have been prevented.

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18) Furthermore, given the amount of traffic going in and out the store, and the practice of allowing children to enter supermarkets, Defendant should have installed safeguards to ensure that its hundreds of customers are not put at risk. 19) Having failed to ensure the safety of its clientele, it failed to exercise due diligence. The particular circumstance of Defendant as well as its history should have been clear indications that there is a need to adopt a more adequate policy for safety. The injury could have been avoided if only they have done so. II. Defendant is responsible for the negligent act of its employees. 20) The doctrine of imputed liability applies squarely to this case. Art. 2180 makes the owners and managers of an establishment responsible for the damages caused by their employees in the service of their branches. 21) It cannot be denied that the employees have been remiss in performing their functions. Had they cleaned up the aisle as necessary, Ricky could not have been injured.

22) As the owner of the establishment where the quasi-delict occurred, Defendant should then be held liable under the doctrine of imputed liability. III. Plaintiff was not negligent 23) Defendant cannot shield itself from liability by claiming that it was Plaintiff who was negligent. Such claim is untenable as can be seen from the

evidence presented. 24) Plaintiff, through her testimony, sufficiently established the negligence of Defendant and its employees based on what she observed. Plaintiff saw her child chase a ball down the aisle, saw her only son slip on a wet section, and noticed that one of the bottles have leaked from the shelf. 25) Defendant, on the other hand, did not present any competent evidence to counter Plaintiffs allegations. Instead, Defendant relied on the mere opinion of its supermarket supervisor on what he assumes to have transpired. Not having personally witnessed the event, Rene Castro was not competent to testify as to that fact. In his testimony, Defendants witness admitted that he was not present at the scene when it happened but merely based his testimony on what was suggested by what he saw. Clearly, this is but an opinion expressly excluded by the Rules on Evidence and is therefore inadmissible. In addition, the actions of Plaintiff do not even suggest negligence on her part. There was nothing wrong with bringing a child in the supermarket since as admitted by the supervisor, it is an allowed practice to let children enter the premises with their parents. There is also nothing unnatural with a parent allowing the child to walk ahead and that does not by itself constitute negligence. Given the playful nature of a fiveyear-old surrounded by knickknacks of sorts, it is natural for him to be a little distracted by colorful wrappers and toys. It cannot be believed though that such permission amounted to lack of due diligence on the part of Plaintiff. It is contrary to human experience that a parent would allow his or her only child to be exposed to peril. Defendant cannot also seek to be exempted through Art. 221 of the Family Code which makes the parents liable for the damages and injuries caused by the acts or omission of their unemancipated minor. This is because such provision is qualified by the statement subject to the appropriate defenses provided by law. In this case, Plaintiff can invoke the provision of quasi-delict and the defense that it is the Defendant whose negligence was the proximate cause of the injury. While there was nothing unnatural with the actions of the Plaintiff, the presence of the puddle was in itself unnatural.

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IV.

Defendant should be made to pay damages having caused injuries

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The claim for actual damages is based on Art. 2199 of the Civil Code. Having duly proved the amount of damages up to P22,840.00, Plaintiff should be entitled to it as actual damages. Having duly proven negligence on the part of Defendant and its being the proximate cause of the injury, Defendant should be liable for the amount proven. Since Defendant failed to prove negligence on the part of the Plaintiff, the entire amount should be shouldered by defendant, without mitigation. Aside from actual damages, moral damages should likewise be awarded for the physical suffering of Ricky and for the mental anguish suffered by Plaintiff from the thought of losing her only child. Art. 2217 of the Civil Code allows such recovery in cases of quasi-delict causing physical injuries, as provided in Art. 2219. RELIEF

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Wherefore, premises considered, it is respectfully prayed that Defendant be made liable to pay P500,000.00 for actual damages caused by the negligent act of Defendant and its employees. Such other relief which are just and equitable under the circumstances are likewise prayed for. 26 November 2011, Quezon City

(Sgd.) (Address) (IBP No.) (PTR) (MCLE Compliance) (Copy furnished)

PLAINTIFFS MEMORANDUM Plaintiff, by counsel, respectfully submits its memorandum in the case: STATEMENT OF THE CASE Plaintiff Jonna Bueno, filed an action for damages against Gloria Supermart, Inc., before the Regional Trial Court of Quezon City. She claims P500,000.00 as damages for the injuries suffered by her minor son, Ricky, caused by the negligence of the defendants employees and for the emotional pain and suffering that it caused to them. Defendant Gloria Supermart denies her claim and asserts that it was not negligent. Instead, it claims that the accident was caused by Jonnas negligence and she alone should be made to suffer the consequences of her own actions. Both parties have presented their evidences and witnesses. The case is now submitted for decision. STATEMENT OF THE FACTS At about ten in the morning of May 11, 2010, Jonna Bueno and her 5-year old son, Ricky, were grocery shopping at Gloria Supermart located in Ortigas Avenue, San Juan, Metro Manila. Supposedly, they were to buy tomato sauce for Rickys spaghetti along with other things. In the middle of their shopping, a small ball rolled along the aisle and Ricky ran for it. However, he stepped over a puddle of syrup and slipped. He fell so hard with a heavy bang that shrieked in pain. Apparently, he hurt his wrist as he tried to stop his fall. Jonna immediately come to his sons aid. As she attended him, she noticed that the syrup on the floor seeped out from a leaking bottle in a nearby shelf. Meanwhile, Rene Castro, the supermarket supervisor, approached her. She asked him to help her carry her son to her car, so that she can rush him to the hospital. She then brought Ricky to the Philippine Orthopaedic Hospital, where he was handled by Dr. John D. Lim, the physician-on-duty at the emergency room. Dr. Lim operated on Rickys right wrist. He had to restore the position of his fractured bone. Thereafter, he required Ricky to stay overnight at the hospital for pain management and care. Ricky was released the next day. At first, he complained that his wrist caused him great pain. Later on, he moved with discomfort and difficulty. He was unable to use both hands. It took him 6 weeks to fully recover. His mother spent P22,840.00 all in all for his doctors fee, hospitalization and medication. Moreover, she experienced mental suffering as she witnessed her only sons painful recovery. On the other hand, Rene Castro, Glorias supermarket supervisor, testified for the defendant. He claimed that at ten in the morning of May 11, 2010, he was fixing the new stock of instant noodles when he heard a commotion at the next aisle. He quickly walked towards the noise and saw Ricky lying on the floor and crying in pain. His mother, Jonna, was trying to minister him. He observed that bottles of syrup from a nearby shelf fell from the floor, including a glass bottle that was broken and spilled part of its contents to the floor. He assisted Jonna in rushing Ricky to the hospital. While Ricky was undergoing surgery, he talked to Jonna and she said that her son slipped on the floor because some syrup seeped out of a leaking bottle in one of the shelves. She blamed the supermarket for the accident. Though he thought differently, Rene kept his silence.

ISSUES The issues of the case, as determined by the court in its pre-trial order, are as follows: 1. 2. Whether or not Gloria Supermart is liable for damages for the injury suffered by Ricky Bueno; and Whether or not Jonna Bueno was contributorily negligent for the accident, which calls for the reduction in claimed damages. ARGUMENTS 1. GLORIA SUPERMART IS LIABLE FOR DAMAGES SINCE ITS EMPLOYEES NEGLIGENCE WAS THE PROXIMATE CAUSE OF THE ACCIDENT.

As it can be gleaned from the records, Ricky suffered from a fractured bone when he tried to stop his fall as he slipped over a puddle of syrup. The syrup apparently seeped out from a broken bottle in a nearby shelf. Ordinarily, the supermarkets employees should have detected the mess and cleaned the area. At the very least, it should have placed a warning sign informing buyers to pass by with caution. But it didnt. It failed to meet its responsibility to keep the premises neat and clear from obstructions. It was negligent in maintaining cleanliness and should be held accountable if by reason of such negligence, customers have suffered from mishaps. In Jarco Marketing Corporation v. Court of Appeals (G.R. 129792, December 21, 1999), the Court defined negligence as the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do. Following this definition, the test of negligence is therefore this: could a prudent man, in the position of the person to whom negligence is attributed, foresee harm to the person injured as a reasonable consequence of the course actually pursued? Applying this question to the case, it is clear that Gloria Supermart was negligent. As a supermarket, tons of customers pass by its aisles everyday to purchase something. It was the responsibility of Gloria to keep those aisles clean and clear in order to ensure the safety and continued patronage of its buyers. When a bottle of syrup got broken and its contents spilled on the floor, it was the burden of Gloria to keep on eye out for these expected eventualities and to immediately address the issue. It should have expected, like any ordinarily prudent and reasonable man, that a hapless buyer would eventually step on it without noticing and slip because of it. After all, buyers do not look on the floor when they buy their groceries. It is common knowledge that they look sideways on the aisles as they search for the items they need. Gloria should have deployed employees to regularly survey their aisles and see if they steered clear from obstructions. This negligence was the proximate cause of Rickys injury. Proximate cause is defined as that cause, which, in natural and continuous sequence unbroken by any efficient intervening

cause, produces the injury, and without which the result would not have occurred. (Ramos v. COL Realty Corp., G.R. No. 184905, August 28, 2009). Had there been no syrup on the floor, Ricky would not have slipped and suffered a bad fall. Even if, admittedly, Ricky was running at the time he stepped on the puddle, he wouldnt have ordinarily fractured his bone had the floor been clear from obstructions. Besides, syrups, by their very nature, are transparent. Only a scrutinizing eye can detect its presence on the floor and buyers are not expected to act in this manner. Considering that Gloria Supermarts employees were negligent and such negligence was the proximate cause for Rickys injury, Gloria Supermart should be held accountable. Article 2180 of the Civil Code supports this conclusion. It states, The obligation imposed by Article 2176 is demandable not only for ones own acts or omissions, but also for those persons for whom one is responsible. xxx xxx xxx The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions. 2. JONNA BUENO WAS NOT CONTRIBUTORILY NEGLIGENT FOR HER SONS INJURY

Jonna was not negligent in watching over her son, while they were grocery shopping. Indeed, parents have the natural right and duty to take care and discipline their children. But Jonna did not show lack of due care when she let Ricky run after the ball. The records show that she was watching her son at that time. Furthermore, a child running after a ball does not necessarily mean that he is engaged in play. The child may be actually trying to fetch the ball and return it to its rightful place or owner. There was no reason for Jonna discipline nor closely monitor her child at that time. Also, Jonna couldnt have reasonably foreseen her sons mishap. As mentioned earlier, the syrup was presumably transparent and couldnt be detected unless scrutinized up close. She also had good reason to believe that the supermarket regularly maintains the cleanliness of its store. There is no basis to find her negligent. 3. GRANTING ARGUENDO THAT THERE IS NO PROOF AS TO WHO OR WHAT CAUSED THE SYRUP TO FALL ON THE FLOOR, GLORIA SUPERMARKET IS STILL LIABLE UNDER RES IPSA LOQUITOR.

In his testimony, Rene Castro made a baseless inference that the syrup on the floor must have come from one of the bottles that Ricky knocked off from the shelf when he ran wild down the aisle. This should not be given credence since Rene himself testified that he did not see how the incident happened. Therefore, he did not have the competence to testify on that matter. But granting, for the sake of argument, that there is no proof as to who or what caused the spillage, Gloria Supermart should still be held liable based on the doctrine of res

ipsa loquitor. First of all, Rickys accident, as explained earlier, was due to the supermarket employees negligence in failing to maintain the cleanliness of the store. Secondly, it is without a doubt that the supermarkets premises is within exclusive management and control of Gloria Supermart. Thirdly, it has been established that Ricky did not contribute to his injury. Any other person would have slipped, had they stepped on the syrup-coated floor. All these three elements put into operation the doctrine of res ipsa loquitor, which strengthens plaintiffs position that the supermarket is liable for damages. 4. JONNA IS ENTITLED TO ACTUAL DAMAGES AND MORAL DAMAGES

Jonna has presented receipts proving that she incurred P22,840.00 in expenses for her sons over-all treatment. Based on Art. 2199 of the Civil Code, she is entitled to actual damages. In addition, she is entitled for moral damages for the mental suffering she experienced. Since this action is based on Gloria Supermarts quasi-delict resulting in physical injuries, she should be allowed to recover it in accordance with Art. 2219 of the Civil Code. PRAYER Wherefore, plaintiff prays that the court renders judgment: 1. finding Gloria Supermart liable for damages, and 2. ordering the defendant to pay P500,000.00 all-in-all as damages including P22,840.00 as compensatory damages. All other just and equitable reliefs are prayed for.

xxxx Counsel for the Plaintiff Address Attorney Roll No. IBP MCLE No.

MEMORANDUM FOR THE PLAINTIFF

Plaintiff, through the undersigned counsel, unto this Honorable Court respectfully submits this Memorandum to support her cause of action and alleges:

STATEMENT OF THE CASE This is a case of quasi-delict with damages for the injuries sustained by a minor due to an accident at the defendants supermarket on May 11, 2010.

STATEMENT OF THE FACTS On direct examination, the plaintiff testified on the following, to wit: 1. Plaintiff is Jonna Bueno, 35 years old, married, and a resident of 89 Little Baguio St., San Juan City, Metro Manila; 2. She is an accountant by profession; 3. On May 11, 2010 at 10:00 AM, plaintiff with her son Ricky, a 5 year old boy, went to Gloria Supermart, Inc., to buy some groceries; 4. While picking some groceries, a small ball rolled along the aisle that caught the attention of Ricky who ran after the ball to catch it; 5. Upon trying to catch the ball, plaintiff saw Ricky slipped with a heavy bang on the wet section of the aisle; 6. Plaintiff immediately came to his rescue to help him as he shrieked from pain in his wrist which he used to stop his fall; 7. Plaintiff testified that the cause of Rickys fall was due to the puddle of liquid on the floor that seeped out from a leaking bottle in a nearby shelf; 8. She testified further that there was no supermarket cleaner around during that time and no warning sign had been placed in the area; 9. Furthermore, she heard someone shout, Hoy, bata ingat! May basa diyan!; 10. Plaintiff asked a store clerk to help her carry Ricky for her to bring him to the Philippine Orthopedic Hospital;

11. That her son Ricky was operated in his right wrist to restore the position of a fractured bone as shown by the X-ray picture; 12. Ricky was able to recover only after six (6) weeks from the accident; 13. That plaintiff incurred P22, 840.00 for doctors fee, hospitalization and medicine as shown by her receipts; 14. She also spent P5, 000.00 for the toys she bought for Ricky to distract him from the pain he suffered; Moreover, on direct examination and on behalf of Gloria Supermart, Inc., their witness testified on the following: 15. Defendants witness is Rene Castro, 55 years old and a resident of 12 V.G. Cruz, Sampaloc, Manila; 16. He is a supervisor of Gloria Supermart, Inc., and works in the store for five (5) years; 17. He testified that on May 10, 2010, he heard a commotion and found out that Ricky was lying on the floor in pain; 18. He saw that couples of bottles of syrup in plastic containers, except one glass bottle was broken and spilled part of its contents on the floor; 19. He speculated that Ricky must have been the one who bumped into the shelf that caused the glass container to break as accordingly inferred from Rickys position; Upon cross-examination, defendants witness stated the following: 20. He did not actually see the accident when it happened; 21. There were already accidents resulting in injury in the supermart before as hundreds of people are shopping in the store; 22. There were even cases of shoplifting in the store; 23. During the accident of Ricky, the Supermart management did not bother to take pictures of the puddle on the floor and the bottles of syrup that was the cause of Rickys accident.

STATEMENT OF THE ISSUE/S 1. IS GLORIA SUPERMART, INC., NEGLIGENT IN MAINTAINING ITS STORE PREMISES TO MAKE IT SAFE FOR ITS CUSTOMERS?

2. IS THE SUPERMART LIABLE TO PAY DAMAGES FOR THE INJURY SUSTAINED BY RICKYS ACCIDENT?

ARGUMENTS AND DISCUSSION

1. Gloria Supermart, Inc., is negligent by not observing due diligence to keep their store safe from possible accidents of its customers. 1.1 Based on the facts presented, it is very clear that defendant Gloria Supermart is negligent and did not observe due diligence in maintaining its store safe and free from possible accidents as shown by the absence of maintenance personnel who must see to it, from time to time, that there are wet areas in the floor which might cause customers from slipping off. 1.2 The supermart was also negligent in not placing a warning sign to warn customers in areas where items are in liquid form as there are tendencies that these items may seep or break. 1.3 The failure of the store personnel to check these things regularly constitutes negligence on their part. Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do. (Jarco marketing Corporation v Court of Appeals, G.R. No. 129792, Dec. 21, 1999, 321 SCRA 375) 1.4 Applying the said jurisprudence, the supermart has but failed to do its responsibility through its personnel to act reasonably as a prudent man would do to maintain its premises safe from accident. 1.5 Aggravating the circumstances was the rolling of the ball that got the attention of Ricky to ran after it. The ball rolling constitutes an attractive nuisance that will certainly catch the attention of a child. That ball must have come from the store which is expected to be seeling as it caters the general needs of its customers. The store management then should have also checked its goods and have them secured especially if they are prone to accidents. In the case of a ball, it is not only hazardous to children but also to adults especially the aged persons who might stepped on it, although not hazardous if properly served. One who maintains on his premises dangerous instrumentalities or appliances of a character likely to attract children in play, and who fails to exercise ordinary care to prevent children from playing therewith or resorting

thereto, is liable to a child of tender age/years who is injured thereby, even if the child is technically a trespasser in the premises. (Hidalgo Enterprises, Inc. vs. Balandan, et al., L-3422, June 13, 1952, 91 Phil. 488). 1.6 The testimony of the plaintiff that she heard someone shouting, Hoy, bata, ingat! May basa diyan! should not have striken out instead appreciated as it could not be considered hearsay because it was directly heard by the plaintiff herself and not taken from other person. 1.7 That declaration must be appreciated as part of resgestal as it was made spontaneously that is while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence. 1.8 In the case at bar, that statement only proves that indeed there was already a wet area in the store where the boy slipped of which regates the defendants witness that it was Ricky who must have bumped off the bottles causing one of them to break. 1.9 It could therefore be dedused from that circumstances that the supermart is negligent because someone had already observed the wet floor to be accident prone.

2. The supermart is liable to pay damages for the injury sustained by Rickys accident. 2.1 The accident should not have happened without the fault and negligence of the supermart and its employees as presented above. The law provides that: Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnity the latter for the same (Art. 20, New Civil Code) 2.2 This is supported by Article 2176 which states that: Whoever by act or omission causes damge to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no preexisting contractual relation between the parties, is called a quasi-delict and is governed by the provision of this chapter. 2.3 In the instant case, the Supermart is liable to pay damages plus the expenses incurred during the medication of Ricky because there should have been no such damage, injury and expenses should the supermart been not negligent in observing due diligence to check their premises, as inunciated by Art. 2180, which states that:

The obligation imposed by Art. 2176 is demandable not only for ones own acts or omissions but also for those of persons for whom one is responsiblexxx. The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or in the occasion of their functions. 2.4 Applying this provision of law to the instant case, it is then the liability of the owner of Gloria Supermart and his store employees who are neglect of their duties to observe due diligence. The owner or employer is vicariously liable with his employees to pay damages to the plaintiff for the injuries she sustained. WHEREFORE, it is respectfully prayed that this Honorable Court will decide in favor of the plaintiff and against defendant, Gloria Supermart, Inc., the following reliefs:

1. Payment of actual or compensatory damages in the amount of P27, 840.00; 2. Moral damages for the physical suffering of the victim and mental anguish, fright and serious anxiety experienced by the plaintiff; 3. Exemplary or corrective damages; 4. Cost of litigation Other measures of reliefs that are just and equitable under the premises are likewise prayed for.

(Sgd.) ATTY. REX BELTRAN Counsel for the Plaintiff Manila City I.B.P. No. _______dated_____ Roll No. ________dated _____ PTR No. _______dated ______ MCLE No. ______dated _____

PLAINTIFFS MEMORANDUM THE CASE Plaintiff Jonna Bueno (Jonna) filed an action for damages of P500,000 against Gloria Supermart, Inc. for the injuries suffered by her son, Ricky, for the expense, and for the emotional pain that it brought to him and Jonna. THE FACTS On May 11, 2010, at about 10 a.m., Jonna went to Gloria Supermart to buy groceries needed in their house. She was accompanied by her 5-year old son, Ricky. While Jonna was shopping for groceries a loose ball rolling along the aisle caught Rickys attention and went after it. He then slipped on a wet section of the aisle from a spilled syrup. Immediately, Jonna came to Rickys side to help him. No sign near the puddle warning customers of the danger was present although she heard someone shouted Hoy, bata, ingat! May basa diyan! She then asked a store clerk to help her carry Ricky so she could bring him to the hospital. Dr. Lim, an orthopedic surgeon attended Ricky. The doctor operated him to restore the position of the fractured bone. Ricky stayed overnight at the hospital for pain management and care. He was released on the following day. Defendant, Gloria Supermart, Inc., disclaims liability saying that it exercised proper diligence in making its premises safe for its customers; that the accident was something it could not reasonably anticipate and so beyond its control; that in any event Ricky and her mother contributed to Ricky slipping on the floor and suffering physical injury and pain; and that Gloria Supermart provided immediate help and assistance to Ricky and her mother. ISSUES I. PROCEDURAL ISSUE Whether the statement by someone not presented as witness warning Ricky, Hoy, bata, ingat! May basa diyan. admissible in evidence. II. SUBSTANTIVE ISSUES A. Whether Gloria Supermarket is liable for damages in not making its premises safe for its customers. B.

Whether Jonna is guilty of contributory negligence. C. Whether Gloria Supermart is liable for actual and moral damages.

THE ARGUMENTS I. The declarants statement is admissible in evidence as part of the res gestae.

During Jonnas testimony, she narrated that she heard someone shouted, Hoy, bata, ingat! May basa diyan! before Ricky slipped. Gloria Supermart claims that such statement is hearsay. As a rule, a witness can testify only to those facts which he has personal knowledge; that is, which are derived from his own perception, except as otherwise provided in the Rules (Rules of Court). One of the exceptions to the hearsay rule is the so-called res gestae statements. Res gestae statement are those made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect of the circumstances thereof. The statement made by the stranger is considered as part of res gestae as it was made immediately prior to Rickys slipping. The declarant warned Ricky of the impending danger the wet floor may bring. Immediately after the precaution, Ricky slipped. The statement concerned the occurrence in question and its immediately attending circumstances. The declarant had no opportunity to contrive or devise such statement before Rickys slipping. Thus, declarants statement shows that the floor was wet when Ricky slipped. II. A. SUBSTANTIVE ISSUES Gloria Supermart is negligent in not making its premises safe for its customers.

The Proximate Cause of the Injury was the Syrup Spilled on the Floor Proximate cause is defined as that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred (Ramos v. COL Realty Corporation). There is no iota of doubt that the proximate cause of Rickys slipping is the wet portion on the floor. Ricky would not have slipped had the puddle been cleaned by Gloria Supermarts employees. Gloria failed to provide proper safeguard measures; its employees were negligent As testified by Jonna, there was no supermarket cleaner to clean the wet area nor there was no sign placed near the puddle or around it. Considering that Gloria Supermarkets

supervisor was just at the next aisle fixing the stocks, he should have heard the sound of an item that was knocked off. It is quite impossible not to notice the fallen objects in such a short distance especially the one that was broken was a glass bottle. Gloria Supermarkets witness even testified that every now and then accidents and shoplifting do occur. These things are unavoidable since hundreds of people come to the supermarket everyday. Having known the fact that plenty of people do come to their supermart everyday, Gloria Supermarket should have provided the proper safeguard measures to prevent the occurrence of such events. It should have reasonably anticipated the happening of such events. Gloria Supermarkets employees should always be alert not only for the safety of its customers but also as to properly guard its products from thief or vandalizing. Store clerks should always be around to attend to customers inquiry and needs. B. No Contributory Negligence on the Part of Jonna and Ricky.

No negligence on Jonnas part While it is true that the responsibility for looking after Rickys needs and safety while in the supermarket is primarily the responsibility of Jonna, it cannot be denied that the accident could not have happened if not for the spilled liquid on the floor. The evidence presented shows that the negligence is on the part of Gloria Supermarket. She was beside Ricky in their shopping and if not because of the loose ball, he would not have been running wild down the aisle. No negligence on the part of Ricky The bumping off the shelf containing the syrup bottles could not have been caused by Ricky. It could have been caused by someone else. In fact, someone even told Ricky to be careful and keep off the wet portion. This only suggests that the spilled syrup was caused by someone else and already been there before the happening of the event. Even assuming that it was Ricky who bumped the shelf, he could not be faulted under the doctrine of attractive nuisance. Under the doctrine of attractive nuisance, one who maintains on his premises dangerous instrumentalities or appliances of a character likely to attract children in play, and who fails to exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable to a child of tender years who is injured thereby, even if the child is technically a trespasser in the premises (Hidalgo Enterprises v. Balandan). There is no question that Ricky is a child of tender years. He was attracted by the loose ball rolling down the aisle. The ball could have fallen from one of Gloria Supermarkets shelf. Thus, Ricky would not have bumped the shelf if not for the loose ball. C. Jonna is entitled to actual and moral damages.

Under Article 2176 of the New Civil Code, whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Gloria

Supermarket being negligent is liable to pay actual and moral damages. The actual or compensatory damages includes the hospitalization and medicine expenses and also for toys bought to distract Ricky from the pain that he suffered. Gloria Supermarket is liable for moral damages for the serious anxiety suffered by Jonna and her husband. Under Article 2219 of the New Civil Code provides that moral damages may be recovered for quasi delicts causing physical injuries. CONCLUSION Defendant Gloria Supermarket is liable for the negligent acts of its employees. Under the concept of vicarious liability, the owners and managers of an establishment are likewise responsible for damages caused by their employees. (Article 2180, NCC) PRAYER WHEREFORE, premises considered, it is respectfully prayed for that: 1) Actual damages in the amount of P22,840 for doctors fees, hospitalization and medicine and the amount of P5,000 for toys bought to distract Ricky from the pain he suffered be awarded; Moral damages in the amount of P500,000 be awarded for the emotional pain and sufferings brought to Jonna and her family; All other reliefs just and equitable under the circumstances are prayed for.

2) 3)

Manila for Quezon City, November 27, 2011

ATTY. REX BELTRAN Counsel for Plaintiff PTR No. 54815, 1/17/2011 IBP No. 589546 Roll of Attorneys No. 8147 MCLE Compliance No. II-843 Copy Furnished: Atty. Emil Sunga Counsel for defendant

MEMORANDUM FOR THE PLAINTIFF PLAINTIFF, through the undersigned counsel, most respectfully submits this Memorandum, as follows: NATURE OF THE CASE This is an action for damages filed by Jonna Bueno against Gloria Supermart, Inc. for the injuries that her son, Ricky, suffered at its supermarket, for the expense, and for the emotional pain that it brought to him and his mother. STATEMENT OF THE FACTS Plaintiff Jonna Bueno (BUENO), married, a resident of 89 Little Baguio St., San Juan City, Metro Manila, has been a customer of Defendant Gloria Supermart, Inc. (GSI), a supermarket located at Ortigas Avenue, San Juan, Metro Manila. On May 11, 2010, at about 10:00 a.m., plaintiff BUENO, together with her son Ricky went to GSI to buy groceries. BUENO claimed that while she and her son were picking up groceries at the shelves, a small ball rolled along the aisle and Ricky ran after it then soon thereafter, she saw him slip with a heavy bang on a wet section of the aisle. So, BUENO immediately came to Ricky and immediately brought him to the hospital where he stayed overnight for medication. BUENO claimed that Ricky complained of great pain and it took about six (6) weeks for him to recover. BUENO further claimed that Ricky moved with discomfort and difficulty, unable to use both hands. Also, that as a mother, she suffered mental pain. BUENO blamed GSI for the injuries suffered by her son claiming that not any employee of GSI was there to prevent the incident; that the wet floor caused Ricky to slip on it. GSI, on the other hand, denies the claims of BUENO and through its witness Rene Castro, claims that it exercised proper diligence in making its premises safe for its customers. Moreover, GSI claims that the accident involving Ricky was something beyond its control; that in any event, Ricky and her mother contributed to Rickys slipping on the floor; that GSI provided immediate help and assistance to Ricky and her mother. Furthermore, GSI asserts that BUENO has the responsibility for looking after Rickys needs and safety. STATEMENT OF THE ISSUES The issues to be resolved in this case are the following: 1. Whether or not the injuries suffered by Ricky was due to the negligence of Gloria Supermart, Inc. 2. Whether or not plaintiff BUENO is entitled to damages.

ARGUMENTS On the first issue: I. AS THE ONE IN EXCLUSIVE MANAGEMENT AND CONTROL OF ITS PREMISES, GSI IS NEGLIGENT IN NOT MAKING ITS PREMISES SAFE FOR ITS CUSTOMERS Defendant GSI, being the owner of the supermarket, has the exclusive management and control of its premises. As such, it has the duty to keep its premises safe for its customers. However, GSI was negligent because by defendants witness own admission, the floor where Ricky slipped over, was wet with syrup coming from the stores merchandise and yet no one was there to clear it. What more, there was even no warning that the floor was wet. Under the doctrine of res ipsa loquitor, the agency or instrumentality who has exclusive management or control of its premises is negligent and is the one liable for injuries caused to third person where the accident was of such character as to warrant an inference that it would not have happened except for the defendants negligence; and the accident must not have been due to any voluntary action or contribution on the part of the person injured. (Child Learing Center, Inc. v. Topacio, 476 SCRA 236, 2005) The aforesaid doctrine of res ipsa loquitor is properly applicable in this case. First, GSI has the exclusive management and control of its premises; second, it may be inferred from the fact that were it not for the wet floor of GSIs store, Ricky would not have slipped on the floor; and third, Ricky did not voluntarily caused the injury to himself. Therefore, it is safe to conclude that it was GSIs negligence which produced the injury to Ricky. II. DEFENDANT GSI FAILED TO EXERCISE PROPER DILIGENCE IN THE MAINTENANCE OF ITS PREMISES It cannot be denied that defendant GSI is negligent in maintaining the safety in its premises specially that being a supermarket, its store can be considered as an attractive nuisance. Under the law, and as held by the Supreme Court in Hidalgo Enterprises, Inc. v. Balandan, et al. (91 Phil. 488) (1952): One who maintains on his premises dangerous instrumentalities or appliances of a character likely to attract children in play, and who fails to exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable to a child of tender years who is injured thereby, even if the child is technically a trespasser in the premises. In this case, defendant GSI is maintaining premises containing merchandise of a character likely to attract children, like Ricky, in play and unfortunately, GSI failed to exercise

ordinary care to prevent Ricky from playing therewith since no one was around to see to it that Ricky will not be injured by such merchandise. Hence, GSI is liable for the injuries sustained by Ricky. On the second issue: I. PLAINTIFF IS ENTITLED TO DAMAGES BECAUSE OF THE INJURIES SUSTAINED BY RICKY DUE TO THE NEGLIGENCE OF DEFENDANT Article 2176 of the New Civil Code provides that: Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasidelict and is governed by the provisions of this Chapter. As applied in this case, defendants negligence causing injury to Ricky, plaintiffs minor son, entitles the plaintiff to damages. Plaintiff BUENO, upon proving by sufficient evidence such as the receipts for Rickys medication and hospitalization can properly claim for actual damages in accodance with Article 2199, which provides: Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages. In addition, since plaintiff suffered mental anguish for the injury suffered by his son, she is also entitled to claim for moral damages. This finds support in the provision in Article 2217 of the Civil Code which states: Art. 2217. Moral damages include physical suffering, mental anguish, freight, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendants wrongful act or omission. To be sure, Article 2219 of the Civil Code expressly provides that: Art. 2219. Moral damages may be recovered in the following and analogous cases: xxx xxx xxx (2) Quasi-delicts causing physical injuries; xxx xxx xxx

It cannot be denied, therefore, that plaintiff is indeed entitled also to moral damages for the physical injuries sustained by her minor son Ricky. WHEREFORE, premises considered, plaintiff most respectfully prays of this Honorable Court that judgment be rendered in favor of plaintiff and against defendant: 1) 2) 3) DECLARING defendant to be liable for the injuries sustained by plaintiffs son Ricky; ORDERING defendant to pay the plaintiff actual damages in the amount of P27,840.00, plus attorneys fees and cost of the suit; and ORDERING defendant to pay the plaintiff moral damages in the amount of P500,000.00 or as the Court may deem proper in the premises.

OTHER RELIEFS just and equitable under the premises are likewise prayed for. Quezon City, Philippines. November 27, 2011. (Signed) Atty. REX BELTRAN Counsel for Plaintiff 123 Espaa St., City of Manila Roll No. 51234; 04/27/11 PTR No. 6789; 01/05/11; Manila IBP No. 7982; 03/20/11;Manila MCLE Compliance No. III-123; 06/14/11

PLAINTIFFS TRIAL MEMORANDUM Plaintiff, by counsel most respectfully submits this memorandum and alleges: STATEMENT OF THE CASE This is an action for damages in the amount of P500,000 filed by plaintiff Jonna Bueno against respondent Gloria Supermart, Inc. Plaintiffs son Ricky, suffered injuries when he slipped because of the wet floor in the supermarket. She claims that the gross negligence of the management and employees of respondent is the proximate cause of the injury. Respondent for its defense claims that it exercised proper diligence in maintaining the safety of its customers and that the accident is beyond its control. In addition, Gloria Supermart, Inc. claims that plaintiff and her son contributed to the cause of the accident. Following the principle in Article 2176 of New Civil Code, Gloria Supermart, Inc. should be held liable for the damages caused to plaintiff. STATEMENT OF FACTS In order that this Honorable Court may be enlightened and guided in the judicious disposition of this case, the following are the material, relevant and pertinent facts: 1. On May 11, 2010, Jonna Bueno (Bueno) together with her son, Ricky, went to respondent Gloria Supermart, Inc. (Gloria) to buy goods that they need at home. 2. While shopping, Ricky saw a small ball rolled along the aisle. He ran after the ball but slipped because of the wet section of the aisle. 3. Based on Buenos testimony, there was a puddle of liquid on the floor because of a leaking bottle in a nearby shelf. 4. She said that there was no sign that the floor was wet not was there any clerk to warn them about it. She, however, admitted that she heard someone who shouted and cautioned her son of the wet floor. 5. On the contrary, Rene Castro (Castro), the Supervisor of the supermarket was at the next aisle when the incident happened. He testified that from the position of Ricky, after he slipped, it can be inferred that he bumped into the shelf with shyrup bottles and knocked down some of them. 6. Thereafter, Ricky was rushed to the Philippine Orthopedic Hospital where he was operated on his right wrist to restore the position of a fractured bone. It took him six (6) weeks to recover.

7. Bueno claims that she spent P22, 840 for medical expenses and P5,000 for toys to distract Ricky from the pain he suffered. She also claims that she mentally suffered because of worrying about her son. 8. Hence, this complaint for damages. ISSUES 1. 2. 3. 4. Whether or not Gloria exercised proper diligence in ensuring the safety of its customers. Whether or not the proximate cause of the accident is the gross negligence of Glorias management and employees. Whether or not Gloria can be held liable for the physical injuries suffered by Ricky when he slipped due to the wet floor. Whether or not Bueno is entitled to actual and moral damages resulting from the accident. ARGUMENTS 1. Gloria Supermart, Inc.s management and employees did not exercise the proper diligence in ensuring the safety of its cusotmers.

Gloria contends that the injuries suffered by Ricky was caused by an accident which is beyond its control. The injury could have been lessened if Bueno and her son exercised proper care. In Jarco Marketing v. Court of Appeals, G.R. No. 129792, December 21, 1999, the Supreme Court ruled that an accident is an unforeseen event which no fault or negligence attaches to the defendant. On the other hand, negligence is defined as omission to do something which a prudent and reasonable man would not do. In addition, in Philippine National Construction Corporation v. Court of Appeals, G.R. No. 159270, August 22, 2005, the Court provides that the test to determine whether a person is doing a negligent act is: would a prudent man, in the position of the person to whom negligence is attributed, foresee the harm to the person injured as a reasonable consequence of the cause actually pursued? Here, Gloria cannot claim that the cause of the injury was an accident or an unforeseen event. Gloria knows that there are many people going in and out of their store. Its business caters to the needs of the family. Hence, they can reasonably expect parents to bring their children. Since they are expecting many customers including children Gloria should have deployed one personnel for each aisle to oversee and ensure the safety of the customers. However, at the time of the accident, there is no grocery clerk in the aisle. If there is a grocery clerk, the incident could be avoided. There should be an employee who should immediately clean wet floors to prevent accidents. But there was none.

Further in the place of the incident, there was no sign to caution the customers about the wet floor. Although Mrs. Bueno admitted that someone shouted and warned her, the liability of Gloria is not negated. [Transcript of Stenographic Notes (TSN), June 7, 2011] Shouting at someone is not sufficient means of informing a person of an impending danger. Therefore, Gloria is negligent because it did not provide for the necessary personnel to assist its customers. In addition, the Supreme Court ruled that the doctrine of res ipsa loquitor can be applied when the following requisites concur: (a) the accident was of such character as to warrant inference that it would not have happened except for defendants negligence; (b) and (c) the accident must not be due to voluntary act of the plaintiff. (Child Learning Center, Inc. v. Tagorio, G.R. No. 150920, November 25, 2005) Here, the doctrine of res ipsa loquitor can be applied. The accident could not happen if Gloria provided for sufficient precautionary measures to avoid the incident. Mr. Castro, the Supervisor, admitted that accident happen about once a year in their premises (TSN, June 14, 2011). Bearing this in mind, Gloria still failed to provide safety measures to prevent or lessen the accidents. They have management and control over their personnel who could have exercised proper diligence in preventing the accident. Clearly, the accident was not voluntary but due to the negligence of the management and its employees. Therefore, applying the doctrine of res ipsa loquitor Gloria failed to exercise proper diligence. 2. The failure of Gloria to provide the necessary precaution to avoid the accident is the proximate cause of the injury. the accident must be because of instrumentality under the control of defendant;

In Ramos v. C.O.L. Realty Corporation, G.R. No. 184905, August 28, 2009, proximate cause is that cause, which, in natural and continuous sequence, unbroken by an efficient intervening cause, produces injury, and without which the result would not have occurred. Here, Gloria claims that the cause of the injury was accident and Bueno and her son contributed to the damage. However, Gloria failed to substantiate its claim. The act of Bueno in letting her child go after the ball is not sufficient intervening cause which could have negated Glorias liability.

Therefore, the direct and immediate cause of the injury can be imputed against Gloria and not Bueno. 3. Gloria should be held liable for the injury caused to Ricky because one who caused damage to another is obliged to pay for the damage caused.

In Article 2176 the New Civil Code (NCC), it is provided that: Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. x x x Further Article 2180 of the NCC provides that: [o]wners and managers of establishment or enterprise are likewise liable for damages caused by their employees x x x. Here, the cause of the injury was the gross negligence of the management and employees of Gloria. Absent any evidence showing that Gloria observe due diligence to prevent damage, it cannot be excused from liability. In addition, Art. 2214 provides that contributory negligence tempers the award for damages. Here, no negligence can be imputed both to Bueno and her son. The act of Bueno before and after the accident shows that she did not cause the injury. She could not have foreseen the wet floor. The opinion of Castro that Ricky bumped into the shelf cannot be used to prove that Ricky is negligent. Under Rule 130, Sec. 48 of the Rules of Court, opinion of a witness is generally not admissible. Also, Castro did not see the accident first hand. His testimony was merely a speculation. Thus, no contributory negligence is present. 4. Mrs. Bueno is entitled to actual and moral damages.

Mrs. Bueno presented evidence of the expenses she incurred in the medication of her son. She also proved that she experience moral damages. Hence, Gloria should pay her the amount prayed for. All told, Gloria can be held liable for actual and moral damages for the neglect of its employees. PRAYER WHEREFORE, it is prayed unto this Honorable Court that judgment in favor of plaintiff be rendered. Gloria should pay her the amount of P500,000 as damages. Other just and equitable reliefs are likewise prayed for. Sgd

Counsel for Plaintiff IBP No. PTR No. Roll No. MCLE Compliance Address Copy furnished: Counsel for Defendant Address

MEMORANDUM

Plaintiff, by the undersigned counsel, avers that: Statement of the Case Plaintiff, Joanna Bueno filed an action for damages against defendant Gloria Supermart, Inc. for the injuries that her son suffered while they were shopping at the defendants supermart. Statement of Facts (1) Plaintiff, Joanna Bueno, of legal age, and married, is a resident of #89 Little Baguio St., San Juan City, Metro Manila. (2) Defendant, Gloria Supermart, Inc. (hereinafter referred to as GSI), is a domestic corporation, with business address at Ortigas Avenue, San Juan, Metro Manila. (3) GSI is the owner and manager of Gloria Supermart located at Ortigas Avenue, San Juan, Metro Manila. (4) On May 11, 2010, at about 10am, Joanna together with her 5-year old son, Ricky went to Glorias Supermart to buy groceries. (5) While doing their shopping, a small ball rolled along the aisle and her son, Ricky, ran after it. (6) On running after the ball, Ricky slipped on a puddle of liquid on the floor. (7) As a consequence, Ricky injured his right wrist and was hospitalized for one night. He complained of great pain, discomfort and difficulty as he was unable to use his hands. (8) It took him about six weeks to recover from the injury he sustained. They incurred P22,840.00 for doctors fee, hospitalization and medicine; and spent P5,000.00 for toys to distract Ricky from the pain he suffered. (9) Joanna also mentally suffered seeing her only son excruciating in pain. (10) GSI negated liability as it allegedly exercised proper diligence in making its premises safe for its customers; and that what happened to Ricky was a mere accident beyond its control. (11) GSI further alleged that Joanna, Rickys mother contributed to the accident of her neglect in supervising Ricky. (12) GSI also alleged that it provided immediate help and assistance to Ricky and her mother. Statement of the Issues I. II. III. Whether or not GSI was negligent in the management of Gloria Supermart. Whether or not GSI is liable for the damages suffered by the plaintiff. Whether or not Joanna is guilty of contributory negligence in the injury suffered by her son. Discussion

GSI is negligent in the management of the supermart. 13. Under the general abuse of right principle embodied under Article 9 of the new Civil Code, every person must, in the exercise of his rights and in performance of this duties, act with justice, give everyone his due and observe honesty and good faith. 14. Complementing this principle is Article 20 of the Civil Code which lays down the cause of action of the plaintiff. It provides that: Art. 20. Every person contrary to law, willfully or negligently caused damage to another, shall indemnify the latter for the same. 15. GSI is the owner of the store has the obligation to see to it that its customers are safe and secure when they do their shopping at their sueprmart. 16. GSI has the responsibility to prevent any untoward incident that may happen to its patrons. It utterly failed in such respect due to the following: a) the testimony of Joanna that there was a small ball that rolled down the aisle that caused Ricky to go after the ball was not rebutted by GSI. It gives the presumption that the ball was out of place and was an attractive nuisance to a child of tender years like Ricky. Why was there a ball in the grocery store in the first place? b) Parents do not normally expect such things in this section of the grocery store and could not reasonably foresee their children to run-after them. c) However, GSI, as the one who maintains the stores premises, has the responsibility to exercise ordinary case to prevent children from playing therewith. It is in the natural order of things that a five year old child like Ricky would run after small balls. 17. Rene Castro, the defendants witness testified that accidents like the one sustained by Ricky are unavoidable, yet if failed to show the manner by which GSI exercised its diligence. 18. The testimony of Joanna that there was no sign near the puddle of liquid on the floor to warn people of the danger it presented was not denied by GSI. 19. Interestingly, Rene Castros testimony that the spilled syrup on the floor was from the bottles that Ricky knocked off when he ran wild down the aisle, was biased and unworthy of credence. Defendant was not able to present any evidence to prove such. Even defendant claimed that no picture was taken to document the incident, contrary to the normal tendency of things. Hence, GSI was not able to disprove the testimony of Joanna and the presumption of negligence against GSI. 20. GSI failed to show proof that it observed the diligence of a good father of a family as required under Article 2180 of the New Civil Code, viz:

Art. 2180. The obligation imposed by Art. 2176 is demandable not only for ones own acts or omissions, but also for those persons for whom one is responsible. xxx xxx

The owners and managers of an establishments or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed on occasion of their functions. xxx xxx The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of good father of a family to prevent damage. (underling for emphasis, ours) 22. GSI did not adduce any evidence of the manner of its management. Worse, it failed to present proof that it required its employees to place signs and clean the mess right away. 23. Even assuming that GSI instructed its employees, to clean the mess of spillage on the floor, the negligence and failure of its employees to do the task would stillb attributable to GSI, due to its vicarious liability under the above quoted law. II There is a direct connection between the negligence of GSI and the damages sustained by Joanna. 24. The pieces of evidence show that the negligence of GSI is the direct and proximate cause of the injury sustained by Joannas son. The negligence of GSI in preventing unnecessary objects such as the small ball in this case would not have caused Ricky to ran-off and slipped on the aisle. 25. Besides, it was the direct responsibility of GSI to ensure that its supermart is free from any circumstances that may pose a threat to its customers. Its failure to clean the spilled syrup within a reasonable time was an omission that was the proximate cause of the injury. III Joanna is not liable for contributory negligence. 26. GSI knew that it is normal for children to accompany their parents in the grocery store. It should have placed sufficient signs to prevent accidents and mishaps like these. 27. Surely, the supermart supervisor cannot feign ignorance of the existence of such puddle of syrup since he was only an aisle away.

28. Joann cannot be expected to know that a danger lurks at the other aisle as she is also occupied with her shopping. She has the right to expect reasonable signs that could caution her while doing her shopping. 29. Joannas act of bringing her child did not fall below the normal standard of care that every parent should exercise with their kids, in bringing them to the supermarket, as customarily, it is known as a safe place for children. 30. Joannas testimony that if it werent for the ball, her child would have perfectly remained with her is worthy of belief as this was not controverted by the defendant. Thus, it was proven that it was the ball that had drawn away Ricky, a fact that is beyond the control of Joanna. WHEREFORE, plaintiff prays the Court to render judgment finding GSI negligent in the management of Gloria Supermart and ordering GSI to pay plaintiff actual damages amounting to P27,840.00; moral damages of P100,000.00 and attorneys fees of P20,000.00 Other such reliefs that are just and equitable under the premised are likewise prayed for. Manila, November 27, 2011.

(SGD.) Counsel for Plaintiff Address: IBP No. ___________ Roll Attorney No. ____________ PTR No. __________________ MCLE No. _________________

Republic of the Philippines National Capital Judicial Region Regional Trial Court Quezon City, Branch I

JONNA BUENO, Plaintiff, -versusCivil Case No. 27-112011 For: Damages

GLORIA SUPERMART, INC. Defendant.

PLAINTIFFS MEMORANDUM Plaintiff, through the undersigned counsel, respectfully submits the following Memorandum and states that: PREFATORY STATEMENT This case refers to an action for recovery of damages filed by the plaintiff for the injuries sustained by her 5-year old son when the latter slipped on the wet floor in one of the aisles of the defendants grocery store. Plaintiff claims that the defendant is liable for the negligent act of its employees who failed to clear the puddle of liquid through appropriate signs or barriers. Defendant on the other hand claims that the event was merely an unfortunate accident for which it could not be held liable. In any event, defendant claims, the plaintiff is guilty of contributory negligence. STATEMENT OF THE FACTS The following are the undisputed facts called from the evidence presented by both parties: (1) Plaintiff Jonna Bueno is of legal age, married, and a resident of 89 Little Baguio St., San Juan City, Metro Manila, while Defendant Gloria Supermart, Inc. is a duly registered corporation with principal place of business located along Ortigas Avenue, San Juan, Metro Manila. (2) Defendant operates a grocery store from where the plaintiff had been purchasing her groceries for the past 20 years. (3) On May 11, 2010, at about 10:00 a.m., plaintiff, together with her 5-year old son Ricky, went to the Defendants store to shop for groceries. A small red ball which was rolling along one of the aisles caught Rickys attention. While running after the

ball, Ricky suddenly slipped on a wet section of the aisle. He however used his right wrist to break the fall. (4) Plaintiff, with the assistance of a store clerk, immediately brought Ricky to the orthopedic Hospital where his right wrist was operated on to restore the position of a fractured bone. Thereafter he was made to stay in the hospital overnight. Plaintiff spent P22,840.00 for the doctors fee, hospitalization and medicine, evidenced by receipts. (5) Upon Rickys discharge from the hospital it took about six weeks for him to recover the use of his right wrist. To distract him from the pain suffered, plaintiff incurred expenses of approximately P5,000.00 for toys. ISSUES (1) Whether or not the event was an accident for which defendant may be held liable; (2) Whether or not the defendants employees were negligent in failing to clear the wet floor and/or to provide adequate warning to customers of the existence of the puddle of liquid; (3) Whether or not the plaintiff is guilty of contributory negligence; and (4) Whether of not the plaintiff is entitled to be compensated for damages. ARGUMENTS The issues shall be addressed in seriatim: (1) THE INCIDENT WAS A FORESEEABLE EVENT WHICH COULD HAVE BEEN PREVENTED

An accident pertains to an unforeseen event in which no fault or negligence attached to the defendant. It occurs when the person concerned is exercising ordinary case and the event, not caused by fault of any person, could not have been prevented by any means suggested by common prudence. 1 Defendants claim that the incident was a mere accident is neglected by the testimony of its own witness. Mr. Rene Castro, the supermarket supervisor, confirmed in his crossexamination that accidents normally occur in defendants supermarket. In fact they occur about once a year such that the defendant have established in dealing with such accidents. Accidents having been treated by the defendant as a normal occurrence and for which a procedure for dealing with them has been established, are thus taken out of the context of unforeseeable events. What the defendant defines as accidents are actually mere unfortunate occurrences which could be prevented but which are nonetheless not prevented due to fault or negligence despite its forseeability. Accidents, in order to exculpate defendant from liability, is one that in unforeseen. In this case, the incident was foreseeable, an normal occurrence which could have been prevented
1

Jarco Marketing Corporation vs. Court of Appeals, G.R. No. 129792, December 21, 1999, 321 SCRA375

had the defendants employees follow the procedures established for dealing with them. Procedures which include the prevention of the so-called accidents. (2) DEFENDANTS EMPLOYEES WERE NEGLIGENT IN MAINTAINING THE SAFE CONDITION OF THE STORE

Negligence is the omission to do something which a reasonable man, guided by those consideration which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do. 2 In the ordinary course of things one can foresee that a person who might by chance step on a puddle of liquid or walk on a slippery floor would most likely slip. In fact this is a common sight which may be prevented by the immediate clearing of the liquid, drying of the floor, or placing appropriate indicators of the wet floor. In the last instance, a person who nonetheless walks on such paths despite the indicators does so at his own risk. In this case the defendant neither cleared the liquid nor indicated its existence with appropriate signs. Despite the natural consequence of its existence on a person using ordinary case who might by chance step on it, and slip, still defendant failed to take the necessary precaution which might be expected from a reasonably prudent man in the position of said defendant. As such, defendant, acting through its employees, should be held liable for its negligence which caused injury to the plaintiff and to her son. (3) PLAINTIFF EXERCISED ORDINARY CARE AS EXPECTED UNDER THE CIRCUMSTANCES

Contributory negligence is conduct on the part of the injured party contributing as a legal cause to the harm he has suffered, which falls below the standard which he is required to conform for his own protection. It is an act or omission amounting to want of ordinary care on the part of the person injured which, concurring with the defendants negligence, is the proximate cause of the injury. 3 Proximate cause is defined as that cause, which, in natural and continous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. 4 Thus, the plaintiffs assumed negligence having been broken by an efficient intervening cause, plaintiff could not be deemed to have contributed to the injury for which damages are being claimed. (4)
2 3

PLAINTIFF SHOULD BE COMPENSATED

Id. National Power Corp. vs. Heirs of Noble Cosianan, GR No. 165967, November 27, 2008, 572SCRA71. 4 Ramos vs. COL Realty Corp., GR No. 184905, August 26, 2009, 597SCRA526. Rules of Court, Rule 131, SCC 3(id).

FOR ACTUAL AND MORAL DAMAGES Article 2176 of the New Civil Code provides that whoever causes damage to another, either by act of omission and with either fault or negligence, is obliged to pay for the damage done. The obligation imposed by Article 2176 is demandable not only for ones own acts or omissions, but also for those of persons for whom one is responsible. Owners and managers of an establishement or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions. 5 Defendant, as employer, is liable under Article 2180, supra, for the negligence of its employees. Not having raised nor proved that it observed all the diligence of a good father of a family to prevent the damage, its liability is fixed. Among the damages for which defendant should be made liable is the reimbursement of the actual expenses for hospitalization incurred by the plaintiff from the defendants from the defendants negligence. Article 2199, supra, provides that compensation for pecuniary loss suffered is in order only when duly proved. Such is the case. Plaintiff, through her testimony and by adequate receipts, has duly proved her pecuniary loss. This being the case, plaintiff is entitled to compensation for actual damages.

In addition, plaintiff is entitled to the recovery of moral damages for the emotional pain the defendants negligence has brought her and her son. In this regard, plaintiff seeks payment of moral damages to alleviate their suffering and anguish in an amount commensurate to the damage caused. RELIEF WHEREFORE it is respectfully prayed that judgment be rendered by this Honorable Court ordering the defendant to pay: (1) Actual damages in the amount of P22,840.00; (2) Moral damages in the amount of P500,000.00; and (3) Costs of suit. Other reliefs as may be just and equitable are likewise prayed for. Quezon City, Philippines, November 27, 2011.

Atty. Rex Beltran Counsel for the plaintiff 123 Road I, Quezon City IBP No. 1234567; 01/01/11-Manila
5

Art. 2180, New Civil Code.

PTR no. 1234567;01/0111- Manila Roll No. 12345; 05/05/05 MCLE No. 001234;09/09/09 The Branch Clerk of Court RTC, Branch 1 Quezon City Greetings: Please submit the foregoing Memorandum for the Courts consideration.

(Sgd. Atty. Rex Beltran) Copy Furnished: Atty. Emil Sunga Counsel for the Defendant