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MEMORANDUM

Defendant Gloria Supermart, Inc., by counsel, respectfully submits


this memorandum as follows:
Statement of the Case
Jonna Bueno (Jonna) filed an action for damages of 500,000 PHP
against Gloria Supermart, Inc. (GSI) before the Regional Trial Court of
Quezon City for the physical injuries of her son, Ricky, suffered at the
defendants supermarket, for the medical expenses and the emotional
anguish that it brought to him and his mother.
Statement of the Facts
1. Plaintiff Jonna Bueno testified that at approximately 10AM on
May 11, 2010, she and her five-year-old son, Ricky, were shopping for
groceries at Gloria Supermart.
2. In her account of the sequence of events, Jonna stated that a
small ball rolled along the aisle, and Ricky, as a child would, chased the
moving object. As per her statement, after her son traveled some
distance from where she stood, Jonna witnessed him slipping on the
aisles wet floor and crashing down with a heavy bang. Ricky then
shrieked from pain in his right wrist, which he used to stop his fall.
3. She testified that she saw a puddle on the floor where Ricky
was situated. She claimed that the liquid forming the puddle was
seeping out from a leaking bottle in a nearby shelf.
4. Jonna then brought Ricky to the Philippine Orthopedic Hospital.
Here, Ricky received diagnosis and treatment for a wrist fracture. He
stayed overnight at the medical facility and recovered in six weeks.
5. During this span of time, Jonna and her husband spent 22,840
PHP in medical expenses, including doctors fee, hospitalization, and
medicine. She also incurred expenses of approximately 5,000 PHP for
toys that were used to distract Ricky from the pain he suffered. Her son
experienced great discomfort and depression, while she herself claims
to have suffered from mental stress.

6. At the time of the incident, Defendant Witness Rene Castro,


supermarket supervisor for Gloria Supermart, was also at the store. He
was placing new stocks of noodles on their respective shelves. When
he heard the commotion one aisle away, he dropped his task and
rushed to the scene.
7. He, too, saw a puddle on the floor where the child lay. Contrary
to Jonnas testimony, however, he asserts that the puddle was from the
items that had fallen from a nearby shelf. These items included one
glass bottle that broke and spilled its contents onto the floor.
8. Castro then carried Ricky to his mothers car and accompanied
mother and child to the Philippine Orthopedic Hospital.
Issues
The issues to be resolved are the following.
1. Whether or not the management and employees of GSI displayed
gross negligence in ensuring the safety of their customers within
their premises
2. Whether or not GSI is liable for damages resulted from Rickys
physical injuries
3. Whether or not the plaintiff is entitled to recover damages
Discussions
I.
GSI was not grossly negligent in keeping their store safe for
customers.
To determine the existence of negligence on the part of the
defendant, it is essential to first establish how the law defines
negligence. The Supreme Court, in Jarco Marketing Corporation v. Court
of Appeals, 321 SCRA 375, reiterated the classic statement of what
negligence is.
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 doing of something which a prudent and reasonable man
would not do. xxx

Jonna contends that supermarket management and staff must be


held responsible for negligence, as they should have been alert of the
nuisances they maintained. They argue that they are at fault for failing
to clear the area of items that draw children away from their parents,
like the loose ball that rolled down the aisle, and hazards that could
jeopardize the safety of the customers, such as the puddle on the floor
from carelessly spilled liquids.
It follows that the indicator of negligence in the case at bar is the
defendants maintenance of nuisances.
Article 694 of the Civil Code defines a nuisance as an act,
omission, establishment, business, condition of property, or anything
else that, for one, injures or endangers the health or safety of others.
In Hidalgo Enterprises, Inc. v. Balandan, et al, 91 Phi 488, attractive
nuisances were defined as dangerous instrumentalities or appliances of
a character likely to attract children in play. However, nuisances are
considered as such if maintained with the absence of the exercise of
ordinary care.
In the present case, neither the ball nor the puddle could be
considered as attractive nuisances. GSI observed ordinary care in
maintaining its store.
The ball could not have been among the merchandise in one of
the stores grocery aisles, where they would display, naturally, grocery
items, not toys. It could not have rolled down the aisle from ineffective
stacking or any activity the employees do in their everyday course of
duty.
The store could not have warned customers of the puddle on the
floor, in the possible event that it was not there prior to the childs
accident. Castro presents this possibility in his testimony:
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?
A: I could infer from the position of Ricky that he bumped
into the shelf containing syrup bottles and knocked off
some of them.

By the mere possibility of this circumstance, this eliminates one


requisite for the application of res ipsa loquitur the accident being
caused

by

an

agency

or

instrumentality

within

the

exclusive

management or control of the person charged with the negligence


complained of. This possibility shows that the circumstances of the
incident were not under GSIs sole and absolute power to implement or
prevent. Other possible causes to a similar accident exist beyond the
control of the defendant. Examples include the accidental breakage of
syrup bottles at the precise time of the incident, tripping on a random
customer, getting pushed aside by human and/or cart traffic, and
collision with other children.
It can be argued that Castro was merely speculating, because he
was at another aisle when the incident happened and could not have
seen exactly how the puddle on the floor came to be. Nonetheless, the
same can be said about the mothers statement she did not see her
child fall until the exact moment he slammed onto the floor, from a
distance where it is questionable that she can ascertain with ease that
the spot he slipped on was wet prior to the incident. Her testimony
validates this.
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.
As ruled in Child Learning Center, Inc. v. Tagorio, 476 SCRA 236,
in every tort case under Article 2176 of the Civil Code, the plaintiff has
to prove by a preponderance of evidence, among others, the fault or
negligence of the defendant, and the connection of cause and effect
between the fault or negligence and the damages incurred. Here, Jonna
failed to establish sufficient evidence of such negligence.
From this, it can be gathered that the defendant did not commit
gross negligence in maintaining the safety of their premises, or at the
very least, such gross negligence is not sufficiently proven.
II.

GSI is not liable for damages.


The provisions of Article 2180 of the Civil Code include 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. However, this all relies on liability under Article 2176,
as provided:
Art. 2180. 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.
xxx

xxx

xxx

Article 2176, which defines liability by quasi-delict, states:


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-existing contractual relation between the parties, is
called a quasi-delict and is governed by the provisions of
this Chapter.
Once more, for liability to be established, there must be proven
the existence of fault or negligence on the part of the defendant. In the
case at bar, the defendant was not maintaining attractive nuisances,
and the puddle, supposedly the injurys proximate cause, was not
proven to be a result of their negligence or imprudence alone. Because
of this, they cannot be held liable for damages the plaintiff sustained.
III.
Jonna is not entitled to recover damages.
Jonna is demanding compensation for actual and moral damages,
in total amounting to 500,000 PHP.
Under Article 2199 of the Civil Code, one is entitled to an
adequate compensation, only for such pecuniary loss suffered. Such
compensation is referred to as actual or compensatory damages. The
plaintiff has duly proven the expenses she incurred from paying for her
sons medical bills. Should GSI be held liable for damages, Jonna can
recover the amount spent for actual damages.
On the other hand, she cannot recover moral damages
amounting to the sum she seeks to claim. While Article 2217 of the

Civil Code lists mental anguish, fright, and serious anxiety as examples
of moral damage, in the case in question, there is no justification of the
award demanded being proportional to the injuries suffered. The
Supreme Court stated the purpose of moral damages in Lorzano v.
Tabayag, G.R. No. 189647, as follows:
Moral damages are not intended to enrich the complainant
at the expense of the defendant. Rather, these are awarded only
to enable the injured party to obtain means, diversions or
amusements that will serve to alleviate the moral suffering that
resulted by reason of the defendants culpable action. The
purpose of such damages is essentially indemnity or reparation,
not punishment or correction. In other words, the award thereof
is aimed at a restoration within the limits of the possible, of the
spiritual status quo ante; therefore, it must always reasonably
approximate the extent of injury and be proportional to the
wrong committed.
Jonna presented evidence of expenses from having to distract
her son from the pain he suffered. What, then, of the mental stress
Jonna suffered from seeing her only son hurt? Primary responsibility
over a non-emancipated child belongs to his parents. Jonna herself
acknowledges this responsibility when she was questioned.
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.
Under Article 20 of the Family Code, this authority and
responsibility may not be renounced or transferred except in cases
authorized by law. Even within the supermarkets premises, Jonna
cannot hold the supermarkets management or its staff principally
accountable for the welfare of her son, because such accountability is
inherently hers as his parent and designated guardian.

By allowing her child of tender age to run down the aisle without
her supervision, allowing him to reach a considerable distance from
where she stood, there is a clear display of contributory negligence on
Jonnas part.
With contributory negligence established, the lingering legal
question may now be answered. Under Article 2179 of the Civil Code,
when the plaintiffs negligence was only contributory, the plaintiff may
recover damages, but the courts shall mitigate the damages to be
awarded. Article 2214 further supports this. Even in quasi-delict cases,
the contributory negligence of the plaintiff shall reduce the damages
that she may recover. The Supreme Court held in National Power
Corporation v. Heirs of Noble Casionan, 572 SCRA 71, that 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.
Prayer
Wherefore, premises considered, defendant Gloria Supermarts, Inc
respectfully prays the Court to:
1. Declare the defendant not liable for injuries sustained by
plaintiffs son;
2. Thereby dismiss this case for lack of merit; and
3. Deny the plaintiffs demand for the defendant to pay her 500,000
PHP in damages