MEMORANDUM

Defendant Royal Supermart, Inc., by counsel, respectfully submits this

memorandum as follows:

Statement of the Case

Joan Cruz filed an action for damages of 500,000 PHP against Royal
Supermart, Inc before the Regional Trial Court of Quezon City for the physical
injuries of her son, Biboy, suffered at the defendant’s supermarket, for the medical
expenses and the emotional anguish that it brought to him and his mother.

Statement of the Facts

1. Plaintiff Joan Cruz testified that at approximately 10AM on May 11, 2010,
she and her five-year-old son, Biboy, were shopping for groceries at Royal
Supermart.

2. In her account of the sequence of events, Joan stated that a small ball rolled
along the aisle, and Biboy, as a child would, chased the moving object. As per her
statement, after her son traveled some distance from where she stood, Joan
witnessed him slipping on the aisle’s wet floor and crashing down with a heavy
bang. Biboy 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 Biboy was situated.
She claimed that the liquid forming the puddle was seeping out from a leaking bottle
in a nearby shelf.

4. Joan then brought Biboy to the Philippine Orthopedic Hospital. Here, Biboy
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, Joan and her husband spent 22,840 PHP in
medical expenses, including doctor’s fee, hospitalization, and medicine. She also
incurred expenses of approximately 5,000 PHP for toys that were used to distract
Biboy 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 Joan’s
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 Biboy to his mother’s 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 Royal Supermart

displayed gross negligence in ensuring the safety of their customers within
their premises
2. Whether or not Royal Supermart is liable for damages resulted from Biboy’s
physical injuries
3. Whether or not the plaintiff is entitled to recover damages

Discussions

I.
Royal Supermart 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

Joan 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 defendant’s
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. Royal Supermart observed ordinary care in maintaining its
store.

The ball could not have been among the merchandise in one of the store’s
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 child’s 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 Biboy 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 Royal Supermart’s 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
mother’s 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 Biboy 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, Joan 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.
Royal Supermart 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 one’s 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 injury’s
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.
Joan is not entitled to recover damages.

Joan 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 son’s medical bills. Should Royal Supermart be held
liable for damages, Joan 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 defendant’s
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.

Joan presented evidence of expenses from having to distract her son from the
pain he suffered. What, then, of the mental stress Joan suffered from seeing her only
son hurt? Primary responsibility over a non-emancipated child belongs to his
parents. Joan 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 Biboy’s 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
supermarket’s premises, Joan cannot hold the supermarket’s 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 Joan’s part.

With contributory negligence established, the lingering legal question may

now be answered. Under Article 2179 of the Civil Code, when the plaintiff’s
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 Royal Supermart, Inc respectfully

prays the Court to:
1. Declare the defendant not liable for injuries sustained by plaintiff’s son;
2. Thereby dismiss this case for lack of merit; and
3. Deny the plaintiff’s demand for the defendant to pay her 500,000 PHP in
damages