TORTS STANDARD OF CONDUCT

JARCO MARKETING CORP. v. CA G.R. No. 129792

December 21, 1999
Davide, Jr., C.J.
JARCO MARKETING CORPORATION, HONORABLE COURT OF APPEALS,
LEONARDO KONG, JOSE TIOPE and ELISA CONRADO C. AGUILAR and CRISELDA R.
PANELO AGUILAR
This is a petition for review on certiorari under Rule 45 wherein petitioners seek the
reversal of the CA decision and resolution denying their MR. Said decision set aside
the RTC Judgement and ordered petitioners to pay damages and attorney’s fees to
private respondents Conrado and Criselda Aguilar.

FACTS
 Petitioner Jarco Marketing Corporation is the owner of Syvel’s Department Store.
 Petitioners Leonardo Kong, Jose Tiope, and Elisa Panelo are the store’s branch
manager, operations manager, and supervisor respectively.
 Private respondents are spouses and the parents of Zhieneth Aguilar.

 May 9, 1983: Criselda and Zhieneth were at the 2nd floor of the department store in
Makati City. While Criselda was signing her credit card slip, she felt a sudden gust
of wind and heard a loud thud and upon looking behind her, she saw her daughter’s
body pinned by the bulk of the store’s gift-wrapping counter/structure. Criselda was
quick to ask for assistance and people lifted the counter retrieving Zhieneth. She
was quickly rushed to Makati Medical Center and was operated on. The following
day, hieneth lost her speech and communicated with Criselda by writing on a magic
slate. The injuries took a toll on her body.
 May 22, 1983: She died on the hospital bed at 6 years old.
 The cause of her death was attributed to the injuries she sustained as stated in her
provisional medical certificate.

 Private respondents demanded reimbursement of the hospitalization, medical bills,

wake, and funeral expenses from the petitioners but the latter refused to pay.
 Private respondents filed a complaint for damages seeking:
o Actual Damages: Php157, 522.86
o Moral Damages: Php300, 000
o Attorney’s Fees: Php20, 000
o Loss of income and exemplary damages: Unspecified

 Petitioners denied any liability. They claimed Criselda was negligent in exercising
care and diligence over her daughter to freely roam around in a store filled with
glassware and appliances. Zhieneth too was guilty of contributory negligence since
she climbed the counter, triggering its eventual collapse on her. Petitioners claimed
that the counter was made of sturdy wood with strong support and never fell nor
collapsed for the past 15 years since its construction.
 Additionally, petitioner Jarco maintained it observed the diligence of a good father
of a family in the selection, supervision, and control of its employees. The other
petitioners claimed due care and diligence in the performance of their duties and
stated that the complaint was malicious. They sought the dismissal of the
complaint and an award for moral and exemplary damages and attorney’s fees in
 their favor.

 RTC Ruling: Complaint dismissed in favor of the petitioners.

o Private respondent’s assertion on appeal:
 Zhieneth should be entitled to the conclusive presumption that a child below 9
years is incapable of contributory negligence. And even if she was capable of
such, it was physically impossible for her to have propped herself on the
cunter.
 Negligence could not be imputed to Criselda for it was reasonable for her to
have let go of Zhieneth at the precised moment that she was signing the
credit card slip.
 Proximate cause of Zhieneth’s death was petitioners’ negligence in failing to
institute measures to have the counter permanently nailed.
o Petitioners’ arguments:
 Despite Zhieneth’s death being an accident, Criselda nor Zhieneth could not
be held to be entirely faultnless.
 The counter had been in existence for several years without any prior
accidents and was deliberately placed at the store’s corner to avoid
accidents.
 A criminal case for homicide through simple negligence was dismissed
proving further their exercise of due diligence.
 CA Ruling: Decided in favor of private respondents. MR denied.
ISSUE/S
1.) Whether the death of Zhieneth was accidental or attributable to negligence
2.) In case of a finding of negligence, whether the same was attributable to petitioners
for maintaining a defective counter or to Criselda and Zhieneth for failing to exercise
due and reasonable case while inside store premises.
RULING
1.) Zhieneth’s death could only be attributable to NEGLIGENCE.

The testimony of one Gerardo Gonzales, former store gift wrapper, stated the counter
was not nailed and it was only standing on the floor thus making it shaky. Since the
top of it was heavy and considering it was not nailed, it can collapse at anytime.
Despite informing one Mr. Maat about the counter and also informing the company, the
latter did not do anything about it so Gonzales did not act on it either. The testimony
of Ramon Guevarra, another former employee, stated that he informed Panelo that the
counter needs nailing since it was shaky. Panelo even got angry upon saying that the
same counter needed nailing.

Without doubt, petitioner Panelo and another store supervisor were personally
informed of the danger posed by the unstable counter. Yet, neither initiated any
concrete action to remedy the situation nor ensure the safety of the store's employees
and patrons as a reasonable and ordinary prudent man would have done. Thus, as
confronted by the situation petitioners miserably failed to discharge the due diligence
required of a good father of a family.

2.) Negligence is attributable to the PETITIONERS

We apply the conclusive presumption that favors children below nine (9) years old in
that they are incapable of contributory negligence, according to the book ( Philippine
Law on Torts and Damages, pp. 70-71, 1993) of former Judge Cezar S. Sangco.

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. For if that was the truth, a frail six-year
old could not have caused the counter to collapse. The physical analysis of the
counter by both the trial court and Court of Appeals and a scrutiny of the evidence29
on record reveal otherwise, i.e., it was not durable after all. Shaped like an inverted
"L," the counter was heavy, huge, and its top laden with formica. It protruded towards
the customer waiting area and its base was not secure.

Criselda too, should be absolved from any contributory negligence. Initially, Zhieneth
held on to Criselda's waist, later to the latter's hand. Criselda momentarily released
the child's 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. Further, at the
time Zhieneth was pinned down by the counter, she was just a foot away from her
mother; and the gift-wrapping counter was just four meters away from Criselda. The
time and distance were both significant. Zhieneth was near her mother and did not
loiter as petitioners would want to impress upon us. She even admitted to the doctor
who treated her at the hospital that she did not do anything; the counter just fell on
her.
DETAILS THAT ARE NOT RELEVANT BUT MIGHT GET ASKED ANYWAY
 Contents of the provisional medical certificate:
“Diagnoses:
1. Shock, severe, sec. to intra-abdominal injuries due to blunt injury
2. Hemorrhage, massive, intraperitoneal sec. to laceration, (L) lobe liver
3. Rupture, stomach, anterior & posterior walls
4. Complete transection, 4th position, duodenum
5. Hematoma, extensive, retroperitoneal
6. Contusion, lungs, severe
CRITICAL”
 Ratio of the RTC Ruling:
o Proximate cause of the fall of the counter was Zhieneth’s act of clinging to it.
o Criselda’s negligence contributed to Zhieneth’s accident.
o The counter was situated at the end or corner of the 2 nd floor as a precautionary
measure hence, it could not be considered as an attractive nuisance. The
structure was safe and well-balanced. Zhieneth had no business climbing on and
clinging to it.
 Ratio of the CA Ruling:
o Zhieneth was incapable of negligence or other tort. Since a child under 9 could
not be held liable even for intentional wrong, Zhieneth could not be made to
account for a mere mischief or reckless act as she was only 6 at the time of
death.
o There was nothing wrong or out of the ordinary for Criselda to momentarily allow
Zhieneth to walk while she signed the document at the nearby counter.
 Negligence; definition:
o It 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.
o 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 justly
demand, whereby such other person suffers injury.
 Accident; definition:
o It is an unforeseen event in which no fault or negligence attaches to the
defendant.
o It is a fortuitous circumstance, event or happening; 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.
 Test in determining the existence of negligence: (Picart v. Smith)
o Did the defendant in doing the alleged negligent act use that reasonable care
and caution which an ordinarily prudent person would have used in the same
situation? If not, then he is guilty of negligence.
 NOTE: 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

 In case lang Atty. SB asks about credibility of witnesses (Gonzales and Guevarra’s
testimony):
o This should be for Evidence pa but anyway , the background was petitioners were
alleging that the testimonies of the 2 former employees should not be given any
credibility because it was blemished by “ill feelings” since they were already
separated from employment at the time they gave their testimonies. The
Supreme Court held that these were but mere speculation since petitioners
failed to prove that the RTC’s evaluation of the testimonies were made arbitrarily
or that it failed to appreciate some facts which could affect the result of the
case.
Santa’s Barbies 18-19