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G.R. No. 129792
December 21, 1999
Petitioner Jarco Marketing Corporation is the owner of Syvels Department Store,
Makati City. Petitioners are Leonardo Kong (store branch manager), Jose Tiope (operations
manager) and Elisa Panelo (supervisor). Private respondents are spouses and the parents of
the 6-year old Zhieneth Aguilar.
On 9 May 1983, while Criselda was signing her credit card slip at the payment and
verification counter at the 2nd floor of Syvels Department Store, she felt a sudden gust of
wind and heard a loud thud. She looked behind her and saw her daughter, Zhieneth, on the
floor, crying for help, her young body pinned by the bulk of the stores gift-wrapping
counter. Criselda immediately asked help from the people around and Zhieneth was quickly
rushed to the Makati Medical Center. However, 14 days after the accident, she died due to
the critical and severe injuries she sustained.
Respondents demanded upon petitioners the reimbursement of the hospitalization,
medical bills and funeral expenses. Petitioners refused to pay. Respondents filed a
complaint for damages, asserting that: (1) Zhieneth should be entitled to the conclusive
presumption that a child below 9 years is incapable of contributory negligence; (2) Zhieneth
had a small frame, thus it was physically impossible for her to have propped herself on the
counter; (3) Gerardo Gonzales, a former employee of the store who accompanied Zhieneth
when she was brought to the emergency room, testified that Zhieneth said that I did not
come near the counter and the counter just fell on me. Hence, this testimony should be
considered as part of res gestae and accorded credit; (4) Criselda is not negligent for it was
reasonable for her to have let go of Zhieneth when she was signing the credit card slip; (5)
the proximate cause of Zhieneths death, was petitioners negligence in failing to institute
Petitioners denied any liability for the injuries and consequent death of Zhieneth,
arguing that: (1) Criselda was negligent in exercising care and diligence over her daughter
by allowing her to freely roam around in a store filled with glassware and appliances; (2)
Zhieneth was guilty of contributory negligence since she climbed the counter, triggering its
eventual collapse on her; (3) the counter was made of sturdy wood with a strong support and
it never collapsed since its construction; (4) petitioner Jarco Marketing Corp. observed the
diligence of a good father of a family in the selection, supervision and control of its
employees; (5) other petitioners also claimed to have exercised due care and diligence; (6)
Zhieneths death was an accident; (6) the criminal case for homicide through simple
negligence filed by respondents against the petitioners was dismissed; (7) since the action
was based on tort, negligence on the part of the respondents would negate their claim for
damages, where said negligence was the proximate cause of the injury sustained; (8) since
Gonzales was already separated from Syvels, his testimony is doubtful.
Based on preponderance of evidence, the RTC dismissed the complaint in favor the
petitioners, ruling that: (1) the proximate cause of the fall of the counter on Zhieneth was her
act of clinging to it; (2) Criseldas negligence also contributed to Zhieneths accident; (3) the
counter was not an attractive nuisance.

Upon respondents appeal, the CA reversed the RTC, finding that: (1) petitioners
were negligent in maintaining a structurally dangerous counter.1; (2) two former employees
of petitioners had already reported to the management the matter, but the latter ignored it; (3)
Zhieneth, who was below 7 years old was absolutely incapable of negligence or other tort,
since even a child under 9 years could not be held liable for an intentional wrong. CA
awarded the respondents actual damages for the hospitalization expenses and compensatory
damages for the death of Zhieneth, but it denied an award for funeral expenses. Petitioners
filed this petition before SC.
(1) W/N the death of Zhieneth was attributable to the negligence of the petitioners.
(2) W/N Zhieneth is had contributory negligence to the incident.
(3) W/N Criselda is had contributory negligence to the incident.
(1) YES, the death of Zhieneth was due to the negligence of the petitioners. On one
hand, an accident pertains to an unforeseen event, an event happening without any human
agency, or if happening wholly or partly through human agency, an event which under the
circumstances is unusual or unexpected by the person to whom it happens. 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. 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. It is
the failure to observe, for the protection of the interest of another person, that degree of care,
precaution and vigilance, which the circumstances demand, whereby other person suffers
injury. Accident and negligence cannot exist together.
The court gave credence to the testimony of Gonzales, pertaining to Zhieneths
statement formed part of the res gestae under Section 42, Rule 130 of the Rules of Court. 2
Matters relating to declarations of pain or suffering and statements made to a physician are
generally considered declarations and admissions. All that is required for their admissibility
as part of the res gestae is that they be uttered under the influence of a startling event before
the declarant had the time to think and concoct a falsehood as witnessed by the person who
testified in court. In this case, it is unthinkable for Zhieneth to have lied that time.
Also, petitioner Panelo and another store supervisor failed to exercise due diligence
required of a good father of a family, since they were already personally informed of the
danger posed by the unstable counter, yet, they did not ensure the safety of the stores
employees and patrons as a reasonable and ordinary prudent man would have done.

1 The counter was shaped like an inverted L. Its top was heavy and the weight of the upper portion was neither
evenly distributed.
2 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 the res
gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance,
may be received as part of the res gestae.

(2) NO, Zhieneth is not guilty of contributory negligence to the incident. The court
applied the conclusive presumption that children below 9 years old are incapable of
contributory negligence. Even if we attribute contributory negligence to Zhieneth and
assume that she climbed over the counter, no injury should have occurred if we accept
petitioners theory that the counter was stable and sturdy. It was found that the counter was
not durable. Shaped like an inverted L, the counter was heavy, huge. It protruded towards the
customer waiting area and its base was not secured.
(3) NO, Criselda is not liable for contributory negligence to the incident. Initially,
Zhieneth held on to Criseldas waist, later to the latters hand. Criselda momentarily released
the childs hand from her clutch when she signed her credit card slip. At this precise
moment, it was reasonable and usual for Criselda to let go of her child. Also, when Zhieneth
was pinned down by the counter, she was just near her mother and did not loiter. She even
admitted to the doctor that she did not do anything; the counter just fell on her.
The petition herein is DENIED and the CA decision is AFFIRMED. Costs against petitioners.