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. _________________