Memo

ANGELICA MENESESLegal Writing

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

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 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

aisle’s 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 doctor’s 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 Jonna’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 Ricky 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 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 Ricky’s

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

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. GSI 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 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 GSI’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 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 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.

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

son’s 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 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.

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 Ricky’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, Jonna

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

Jonna’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 Gloria Supermarts, 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

Memo

Documents

Transcript of Memo