Trial+Memorandum+Sample+-+Instructions 2011problem Top10memos (1)

8/13/2019 Trial+Memorandum+Sample+-+Instructions 2011problem Top10memos (1)

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INSTRUCTIONS FOR ESSAY EXAMS:

You are presented with a hypothetical case plus research materials (provisionsof law and jurisprudence) that you may want to use in your work.

The laws and jurisprudence accompanying the problems are designed to providesufficient basis for preparing an excellent trial memorandum or legal opinion. But youare free to include such laws, rules and principles not provided that you feel willenhance your work.

Choose the side of the dispute that you want to uphold and defend and preparea trial memorandum in support of your side.

Omit the case caption.

Do not write more than four arguments.

You have been given, apart from this Test Question, a Draft Pad, and an AnswerPad. Use the Draft Pad for making a draft of your memorandum. This will permit youto freely edit and rewrite your work. Editing and rewriting are essential to sound legalwriting.

The bells will be rung one hour before the end of the exam to signal the need foryou to begin transferring your work to your Answer Pad.

You may, of course, prefer to skip the preparation of a draft and write your essaydirectly on your Answer Pad. That is allowed.

Quality of writing, not length is desired.

You are free to jot notes or place helpful markings like underlines on the testquestions and the enclosed materials.

Corrections even on your final essay on the Answer Pad are allowed and will notresult in any deduction. Still, it is advised that you write clearly, legibly and in anorderly manner.

When the bell rings a second time to signal the end of the exam, your testquestions, Draft Pad, and Essay Pad will be collected whether you are finished or not.The time pressure is a part of the exam.

You will not be graded for a technically right or wrong answer but for the qualityof your legal advocacy.

The test is intended to measure your skills in:1) communicating in English -- 20%;2) sorting out the conflicting claims and extracting those facts that are relevant

to the issue or issues in the case -- 15%;3) id tif i th i i t d 15% d


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PART 1 TRIAL MEMORANDUM:

Jonna Bueno filed an action for damages of P500,000.00 against Gloria Supermart, Inc.before the Regional Trial Court of Quezon City for the injuries that her son, Ricky, suffered at itssupermarket, for the expense, and for the emotional pain that it brought to him and his mother.

Consider the following testimonies that the witnesses from either side presented at thetrial of the case. Assume that you are the lawyer either for Bueno or for Gloria Supermart andwrite a trial memorandum for the side you have chosen to represent. You would want toconvince the trial court to decide the case in your clients favor.

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Excerpts from Transcript of Stenographic NotesBueno vs. Gloria Supermart, Inc., Civil Case No. 27-112011, Hearing of June 7, 2011.

DIRECT EXAMINATION OF PLAINTIFFS WITNESS

COURT STAFF: (After swearing in the witness) State your name and personalcircumstances.

WITNESS: I am Jonna Bueno, 35 years old, married, and a resident of 89 LittleBaguio St., San Juan City, Metro Manila. I am an accountant.

ATTY. REX BELTRAN: Your Honor, we are offering the testimony of Ms. Bueno toprove that her son, Ricky, slipped on the wet floor of Gloria Supermart by reason of the grossnegligence of its management and employees, causing him to suffer excruciating pain from afractured arm and undergo great discomfort and depression. Ms. Bueno herself incurred anenormous medical expense and suffered from mental stress.

COURT: What do you say counsel?ATTY. EMIL SUNGA: Subject to cross, Your Honor.

COURT: Proceed, Atty. Beltran.ATTY. BELTRAN:Q. Ms. Bueno, do you know the defendant Gloria Supermart?

A. Yes, sir.Q. Why do you know it?

A. I have been buying our groceries and other things from Gloria Supermart for thepast 20 years.

Q. Where is Gloria Supermart located?A. On Ortigas Avenue, San Juan, Metro Manila, just two blocks from our

condominium.Q. Do you remember where you were at about 10 a.m. on May 11, 2010?

A. Yes, Sir.

Q. Where were you?A. I was at Gloria Supermart.Q. What were you doing there?

A. I was about to cook spaghetti for my son Ricky when I realized I didnt have anytomato sauce so I went to Gloria Supermart to buy tomato sauce and some other things weneeded in the house.

Q. Did you have any companion?A. Yes, my boy Ricky.Q. How old was Ricky at that time?

A. His birthday is May 2, 2005. He was 5 years old already.Q. How did you do your shopping for groceries with Ricky on tag?

A. I had a cart. He would sometimes ride on it or walk along the aisles with me. At

times, I will ask him to pick safe things from the shelves and put them in the cart. He also grabsgoodies that he likes.Q. Do you remember anything unusual that happened while you and Ricky were


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Q. What happened to him after he slipped?A. He shrieked from pain in his right wrist which he used to stop his fall.Q. What did you do after you saw Ricky fall down the floor, looking hurt?

A. I immediately came to his side to help him. I also asked a store clerk who camearound to help me carry Ricky to my car so I could bring him to the hospital. I did not get tofinish my shopping.

Q. Did the store clerk help you?A. Yes, Sir. But he was not very friendly. Afterwards, I brought Ricky to the

Philippine Orthopedic Hospital.Q. You said that Ricky slipped on a wet floor section of the aisle. How did you know

that the section you referred to was wet?A. I saw the puddle of liquid on the floor.Q. Did you get to know what kind of liquid it was?

A. It was syrup that seeped out from a leaking bottle in a nearby shelf.Q. Was there any supermarket cleaner nearby when you came near that puddle of

syrup?A. None sir.Q. Did you see any supermarket grocery clerk around?

A. None, Sir. There should have been someone to warn people of that puddle ofsyrup on the floor.

Q. Did you see any sign near that puddle or around it, warning customers of thedanger it presents?

A. None, Sir, although I heard someone shout, Hoy, bata, ingat! May basa diyan!ATTY. SUNGA: I move to strike out that testimony. It is hearsay.ATTY. BELTRAN: It is admissible as a res gestae statement, Your Honor.COURT: Strike out the answer.Q. You said that you brought your son, Ricky, to the Philippine Orthopedic Hospital,

who attended to your son at the hospital?A. Dr. John D. Lim, an orthopedic surgeon. He was the physician at the emergency

room. I think he is in his mid-forties.

Q. You said it was his right wrist that Ricky complained of. How did you know that?A. He pointed to it while crying from pain. After we brought him to the Philippine

Orthopedic Hospital, I saw the doctor operate on his right wrist to restore the position of afractured bone. Later, the doctor showed me an x-ray picture of the wrist bone before and afterthe operation.

Q. How long did Ricky stay in the hospital?A. The doctor required Ricky to stay overnight at the hospital for pain management

and care. He ordered his release on the following day.Q. Based on your observation, how long did it take for Ricky to recover the use of

his right wrist?A. About six weeks.Q. How did your son take these things that happened to him?

A. He complained of great pain at the beginning. Later, he moved with discomfortand difficulty, unable to use both hands.

Q. How about you, Ms. Bueno? How did you take these events?A. He is my son. I mentally suffered more pain than he did. He is my only son. I

dont know what I would do if I lose him. My husband and I waited for years before we hadRicky. And then this happens.

Q. How much expense, if any, did you incur for the hospitalization and medicaltreatment of Ricky?

A. I spent P22,840.00 for doctors fee, hospitalization, and medicine. We alsobought toys for Ricky to distract him from the pain that he suffered. We spent approximatelyP5,000.00.

Q. Do you have evidence of these expenses?

A. Yes, Sir, here are my receipts[Note: Assume that the marking and presentation of the receipts for the expenses

mentioned above, although omitted here, were done right.]


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A. I could infer from the position of Ricky that he bumped into the shelf containingsyrup bottles and knocked off some of them.

Q. Did you speak to Ms. Bueno about it?A. I talked to her at the hospital while we were waiting for Rickys treatment to be

finished and I asked her what happened.Q. What did she say?

A. She said that Ricky saw a ball rolling down the aisle and he ran after it.Somehow, he slipped on the floor and hurt his arm. She was so flustered.

Q. Are children allowed in your supermarket?A. All supermarkets allow customers to bring their children into the store. It is often

a necessity for them. It is understood of course that their parents would look after them,preventing them from misbehaving, causing damage to the merchandise, or getting injured.

Q. Ms. Bueno said that Ricky slid on the floor because some syrup seeped out of aleaking bottle in one of the shelves. Do you know anything about it?

A. Yes, sir. What she said is not true. The syrup must have come from one of thebottles that Ricky knocked off from the shelf when he ran wild down the aisle, supposedlyrunning after a loose ball. There can be no other explanation.

Q. What did you do then?

A. I helped Ms. Bueno pick up Ricky, intending to bring him to a hospital but hismom insisted that we take him to her car so she can drive him quickly to the hospital. I carriedRicky to her car and accompanied them to the hospital.

Q. Did Ms. Bueno tell you anything while you were in the car?A. She was blaming the supermarket for the accident.Q. Did you reply to her?

A. No, Sir, I said nothing to upset her because she was driving and was worriedabout her child.

ATTY. SUNGA: That is all, Your Honor.

CROSS-EXAMINATION BY ATTY. BELTRANATTY. BELTRAN:

Q. Mr. Castro, You said that you did not actually see the accident when it happened,is that right?

A. Yes, Sir.Q. In fact, you were in another aisle at that time?

A. Yes, Sir.Q. So when you said that Ricky bumped into the shelf containing syrup bottles and

knocked off some of them, you were merely speculating on what could have happened, right?A. Yes, Sir, but the scene suggested it.Q. Since you did not see what actually happened at that aisle, is it possible for some

other person to have knocked off those bottles?A. Yes, Sir, that is possible but not likely since I did not see any person leave the

place in haste.

Q. So, it is also possible that the syrup on the floor, spilled by someone else, causedRicky to slip as he was running after some ball before you showed up?

A. Yes, that is possible, but unlikely. The shelves are carefully stocked.Q. Do accidents resulting in injury happen in your supermarkets?

A. Yes but not so often; about one accident a year, if I remember right. Thesethings are unavoidable because hundreds of people come to the supermarket everyday.

Q. How about shoplifting, does this happen often?A. Every now and then, Sir. Its normal for supermarkets.Q. So naturally you must have some procedure for dealing with events like

accidents or shoplifting?A. Yes, Sir.Q. To protect your rights and interests, is that correct?

A. Yes, Sir.Q. Since Ricky had this serious accident that you claim was not your fault as the

scene suggested, did your supermarket bother to take pictures of the puddle on the floor and


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LAWS AND JURISPRUDENCE

FAMILY CODE

PARENTAL AUTHORITY

ART. 209. Pursuant to the natural right and duty of parents over the person andproperty of their unemancipated children, parental authority and responsibility shall include thecaring for and rearing of such children for civic consciousness and efficiency and thedevelopment of their moral, mental and physical character and well-being.

Art. 20. Parental authority and responsibility may not be renounced or transferred exceptin the cases authorized by law.

Art. 220. The parents and those exercising parental authority shall have with respect totheir unemancipated children or wards the following rights and duties:

(1) To keep them in their company, to support, educate and instruct them by right

precept and good example, and to provide for their upbringing in keeping with theirmeans;xxx xxx xxx(8) To impose discipline on them as may be required under the circumstances; and(9) To perform such other duties as are imposed by law upon parents and guardians.

Art. 221. Parents and other persons exercising parental authority shall be civilly liable forthe injuries and damages caused by the acts or omissions of their unemancipated children livingin their company and under their parental authority subject to the appropriate defenses providedby law.

CIVIL CODE

PERSONAL LIABILITY

Art. 20. Every person who, contrary to law, willfully or negligently causes damage toanother, shall indemnify the latter for the same.

NUISANCE

Art. 694. A nuisance is any act, omission, establishment, business, condition of property,or anything else which:

(1) Injures or endangers the health or safety of others; or

xxx xxx xxx

Art. 697. The abatement of a nuisance does not preclude the right of any person injuredto recover damages for its past existence.

At tract ive Nuisance

One who maintains on his premises dangerous instrumentalities orappliances of a character likely to attract children in play, and who fails toexercise ordinary care to prevent children from playing therewith or resortingthereto, is liable to a child of tender years who is injured thereby, even if the child

is technically a trespasser in the premises. (Hidalgo Enterprises, Inc., v.Balandan, et al., L-3422, June 13, 1952, 91 Phil. 488)


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existing contractual relation between the parties, is called a quasi-delict and is governed by theprovisions of this Chapter.

An accident pertains to an unforeseen event in which no fault ornegligence attaches to the defendant. xxx

On the other hand, negligence is the omission to do something which a

reasonable man, guided by those considerations which ordinarily regulate theconduct of human affairs, would do, or the doing of something which a prudentand reasonable man would not do. xxx

Accident and negligence are intrinsically contradictory; one cannot existwith the other. Accident occurs when the person concerned is exercising ordinarycare, which is not caused by fault of any person and which could not have beenprevented by any means suggested by common prudence. (Jarco MarketingCorporation v. Court of Appeals, G.R. No. 129792, December 21, 1999, 321SCRA 375)

The doctrine of res ipsa loquitor applies where (1) the accident was ofsuch character as to warrant an inference that it would not have happened

except for the defendant's negligence; (2) the accident must have been causedby an agency or instrumentality within the exclusive management or control ofthe person charged with the negligence complained of; and (3) the accident mustnot have been due to any voluntary action or contribution on the part of theperson injured. (Child Learning Center, Inc. v. Tagorio, G.R. No. 150920,November 25, 2005, 476 SCRA 236)

The test for determining whether a person is negligent in doing an actwhereby injury or damage results to the person or property of another is this:could a prudent man, in the position of the person to whom negligence isattributed, foresee harm to the person injured as a reasonable consequence ofthe course actually pursued? (Philippine National Construction Corporation v.

Court of Appeals, G.R. No. 159270, August 22, 2005, 467 SCRA 569)

Art. 2179. When the plaintiff's own negligence was the immediate and proximate causeof his injury, he cannot recover damages. But if his negligence was only contributory, theimmediate and proximate cause of the injury being the defendant's lack of due care, the plaintiffmay recover damages, but the courts shall mitigate the damages to be awarded.

Contributory negligence is conduct on the part of the injured party,contributing as a legal cause to the harm he has suffered, which falls below thestandard which he is required to conform for his own protection.

xxx xxx xxxIt is an act or omission amounting to want of ordinary care on the part of

the person injured which, concurring with the defendants negligence, is theproximate cause of the injury. (National Power Corporation v. Heirs of NobleCasionan, G.R. No. 165969, November 27, 2008, 572 SCRA 71)

Proximate cause is defined as that cause, which, in natural andcontinuous sequence, unbroken by any efficient intervening cause, produces theinjury, and without which the result would not have occurred. (Ramos v. C.O.L.Realty Corporation, G.R. No. 184905, August 28, 2009, 597 SCRA 526)

Art. 2180. The obligation imposed by Article 2176 is demandable not only for one's ownacts or omissions, but also for those of persons for whom one is responsible.

xxx xxx xxx

The owners and managers of an establishment or enterprise are likewise responsible fordamages caused by their employees in the service of the branches in which the latter areemployed or on the occasion of their functions.


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Art. 2197. Damages may be:(1) Actual or compensatory;(2) Moral;(3) Nominal;(4) Temperate or moderate;

(5) Liquidated; or(6) Exemplary or corrective.

Art. 2199. Except as provided by law or by stipulation, one is entitled to an adequatecompensation only for such pecuniary loss suffered by him as he has duly proved. Suchcompensation is referred to as actual or compensatory damages.

Art. 2203. The party suffering loss or injury must exercise the diligence of a good fatherof a family to minimize the damages resulting from the act or omission in question.

Art. 2214. In quasi-delicts, the contributory negligence of the plaintiff shall reduce thedamages that he may recover.

The underlying precept on contributory negligence is that a plaintiff who ispartly responsible for his own injury should not be entitled to recover damages infull but must bear the consequences of his own negligence. (National PowerCorporation v. Heirs of Noble Casionan, G.R. No. 165969, November 27, 2008,572 SCRA 71)

In Phoenix Construction, Inc., v. Intermediate Appellate Court, where weheld that the legal and proximate cause of the accident and of Dionisios injurieswas the wrongful and negligent manner in which the dump truck was parked butfound Dionisio guilty of contributory negligence on the night of the accident, weallocated most of the damages on a 20-80 ratio. In said case, we required

Dionisio to bear 20% of the damages awarded by the appellate court, except asto the award of exemplary damages, attorneys fees and costs. (Estacion v.Bernardo, G.R. No. 144723, February 27, 2006, 483 SCRA 222)

Art. 2217. Moral damages include physical suffering, mental anguish, fright, seriousanxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similarinjury. Though incapable of pecuniary computation, moral damages may be recovered if theyare the proximate result of the defendant's wrongful act for omission.

Art. 2219. Moral damages may be recovered in the following and analogous cases:xxx xxx xxx(2) Quasi-delicts causing physical injuries;

xxx xxx xxx

RULES OF COURT

EVIDENCE

Sec. 36.Testimony generally confined to personal knowledge; hearsay excluded. Awitness can testify only to those facts which he knows of his personal knowledge; that is, whichare derived from his own perception, except as otherwise provided in these rules.

Where the statements or writings attributed to a person who is not on thewitness stand are being offered not to prove the truth of the facts stated therein

but only to prove that those statements were actually made or those writingswere executed, such evidence is not covered by the hearsay evidencerule.(Cornejo, Sr., vs. Sandiganbayan, G.R. No. 58831, July 31, 1987, 152 SCRA


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immaterial. The hearsay rule does not apply. (People v. Gumimba et al., G.R.No. 174056, February 27, 2007, 517 SCRA 25)

Sec. 42.Part of res gestae. Statements made by a person while a startling occurrenceis taking place or immediately prior or subsequent thereto with respect to the circumstancesthereof, may be given in evidence as part of res gestae. xxx

A declaration made spontaneously after a startling occurrence is deemedas part of the res gestaewhen (1) the principal act, the res gestaeis a startlingoccurrence; (2) the statements were made before the declarant had time tocontrive or devise; and (3) the statements concern the occurrence in questionand its immediately attending circumstances. (Zarate v. Regional Trial Court,Branch 43, Gingoog City, Misamis Oriental, G.R. No. 152263, July 3, 2009, 591SCRA 510)

Sec. 48.General rule. The opinion of witness is not admissible, except as indicated inthe following sections.

Sec. 3.Disputable presumptions. The following presumptions are satisfactory ifuncontradicted, but may be contradicted and overcome by other evidence:

x x x(d)That a person takes ordinary care of his concerns;(q)That the ordinary course of business has been followed;(y)That things have happened according to the ordinary course of nature and ordinary

nature habits of life;

In every tort case filed under Article 2176 of the Civil Code, plaintiff has toprove by a preponderance of evidence: (1) the damages suffered by the plaintiff;(2) the fault or negligence of the defendant or some other person for whose acthe must respond; and (3) the connection of cause and effect between the fault or

negligence and the damages incurred. (Child Learning Center, Inc. v. Tagorio,G.R. No. 150920, November 25, 2005, 476 SCRA 236)


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MEMORANDUM FOR THE PLAINTIFF

Plaintiff, through counsel, respectfully submits this memorandum to wit:

PREFATORY STATEMENT

Every person who, contrary to law, willfully or negligently causes damage to another,

shall indemnify the latter for the same (Art. 20, Civil Code).

STATEMENT OF THE CASE

This is an action for damages filed by Jonna Bueno against Gloria Supermart Inc., for the

injuries that her son, Ricky suffered at its supermarket. Ms. Bueno claims P500,000.00 damages

against Gloria Supermart Inc. for the expense and for the emotional pain that it brought to her

son.

STATEMENT OF FACTS

Jonna Bueno, the plaintiff is the mother of Ricky, who is her only son. Ricky who is 5yrs

old went with his mother shopping at Gloria Supermart at about 10am on May 11, 2010. Plaintiff

have been buying her groceries and other things from Gloria Supermart located just two blocksfrom her condominium for the past 20 years. It was on this occasion on May 11, 2010 at about

10am that his son, Ricky, slipped on the wet floor of Gloria Supermart. The plaintiff alleged that

her son ran to catch a ball along the aisle and he slipped on the wet section of the aisle.Henceforth, Ms. Bueno is blaming the management of the Gloria Supermart due to its gross

negligence causing his son to suffer excruciating pain from a fractured arm which caused his songreat discomfort and depression. Ricky was brought to the Orthopedic Hospital and was attended

to by Dr. John Lim, an orthopedic surgeon. It took six (6) weeks for Ricky to recover the use of

his right wrist.

Upon investigation Ms. Bueno alleged that when Ricky fell down the floor, she didnt see

any supermarket cleaner nearby nor any sign near the puddle of syrup on the floor warning

customers of the danger if presents.

The defendant, Rene Castro, who is the supermarket supervisor for 5yrs of Gloria

Supermart Inc., alleged during the investigation that the Supermart should not be blamed for theaccident that happened to Ricky because it exercised proper diligence in makings its premises

safe for its customers; that the accident involving Ricky was something it could not reasonably

anticipate and so beyond its control and that Ricky and her mother contributed to Ricky slippingon the floor. Castro further stated that Ricky could have bumped into the shelf containing syrup

bottles and knocked off some of them which caused the syrup to be spilled on the floor. When

asked if he actually saw Ricky bump on the shelves, Castro stated that he was just merely

speculating it.

ISSUES:


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(1)Whether or not Gloria Supermart exercised proper diligence in making its premises safefor its customers.

(2)Whether or not Rickys accident was through his own contributory negligence;(3)Whether of not the plaintiff is entitled to the damages that she is claiming for.

ARGUMENTS/DISCUSSIONS:

Gloria Supermart Inc. did not exercise proper diligence in making its premises safe for itscustomers.

Diligence on the part of Gloria Supermart Inc. should not be presumed but should beproven that its management and employees were not grossly negligent in making its premises

safe for its customers.

As stated in Sarco Marketing Corp. vs. Court of Appeals, negligence is the omission to

do something which is a reasonable man, guided by those considerations which ordinarilyregulate the conduct of human affairs, would do, or the doing of something which a prudent and

reasonable man would not do.

In the instant case, there was negligence on the part of the Supermart since it failed to

install any warning sign on the puddle of syrup on the floor, warning the customers of the dueconsequences thereof. Furthermore, in any big grocery stores such as the Gloria Supermart, there

should always be a standby floor cleaner who will eventually mop the floor in case there is liquid

in it since it is fact that a fitted or cemented floor is usually slippery when wet. There was nosupermarket cleaner nearby when Ricky slipped on the floor was was alleged by Ms. Bueno

during the investigation, hence proving the negligence of the management in making thepremises safe.

The doctrine of res ipsa loquitor applies where (1) the accident was of such character as

to warrant an inference that it would not have happened except for the defendants negligence; (2)the accident must have been caued by an agency or instrumentality within the exclusive

management or control of the person charged with the negligence complained of and (3) the

accident must have been due to any voluntary action or contribution on the part of the personinjured (chilled Learning Center Inc., b. Tagorio, GR No. 150920, Nov. 25, 2005, 476

SCRA236)

In this case, it was evident that the accident would have happened if it were not for the

defendants negligence because it did not immediately wipe the spilled syrup. The cause of the

accident was as well within the exclusive management and control of the person charged withthe negligence complained of because Mr. Castro could have assigned a floor cleaner in the area

and the accident was not due to any voluntary action or contribution on the part of the person

injured as will be proven in the succeeding paragraphs.

Therefore, Gloria Supermart Inc. was grossly negligent in making its premises safe for its

customers.


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(2) THE ACCIDENT OF RICKY WAS NOT THROUGH HIS OWN CONTRIBUTORY

NEGLIGENCE.

As was alleged by Mr. Castro during the investigation, Ricky bumped into the shelf

containing the syrup bottles and knocked off such bottles thus causing the spilling of the liquidon the floor. This was not, however, proven by Mr. Castro because he did not actually see Ricky

bump into the shelf. Mr. Castro was merely speculating it as what he has stated during the

investigation. As based on Rules on Evidence Sec. 36, a witness can testify only to those factswhich he knows of his personal knowledge. Therefore, it cant be said that Rickys accident was

due to his own contributory negligence.

As stated in National Power Corp.vs. Heirs of Noble Casionan, contributory negligence is

conduct on the part of the injured party contributing as a legal cause to the harm he has suffered

which falls below the standard which is required to conform for his own protection. It is an act or

omission amounting to want of ordinary care on the part of the person injured which concurrig

with the defendants negligence, is the proximate cause of the injury.

In the instant case, the defendants negligence of not wiping the wet floor was theproximate cause of Rickys injuries. Proximate cause is defined as that cause which, in natural or

continous sequence, unbroken by any efficient cause produces the injury and without which the

result would not have occurred. (ramos vs. C.O.L Realty Corp. G.R. No. 184905, Aug. 28, 2009,597 SCRA 526).

The proximate cause of Rickys injury was the puddle of syrup on the floor which causedhim to slide. The owners and managers therefore of the establishment are likewise responsible

for damages.

(4)THE PLAINTIFF IS ENTITLED TO THE DAMAGES SHE IS ASKING FOR.In every tort case filed under Art. 2176 of the Civil Code, plaintiff has to prove by apreponderance of evidence: (1) the damages suffered by the plaintiff; (2) the fault or

negligence of the defendant or some other person whose act he must respond and (3) the

connection of cause and effect between the fault or negligence and the damage incurred.(Child learning Center Inc. v. Tagorio)

In the instant case, the plaintiff was able to prove the damages suffered since the childRicky was hospitalized and was operated on his wrist and it took 6 weeks for the child to

recover. Likewise, the fault or negligence of the defendant was also proven in that it failed to

exercise the diligence of a good father of a family to prevent the damage and there was aconnection between the cause and effect between the fault or negligence and the damage

incurred.

Moral damages can also be claimed by Ms. Bueno because of the physical suffering,mental anguish, shock, social humiliation and similar injuries which Ricky has suffered.


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Except as provided by law or by stipulation, one is entitled to an adequate compensation

only for such pecuniary loss suffered by him as he has duly proved. Such compensation isreferred to as actual or compensatory damages. And Ms. Bueno is entitled to such as shown

by her hospital bills and receipts.

WHEREFORE, premises considered, it is prayed to this HONORABLE COURT, thatjudgement be rendered making Gloria Supermart Inc., liable for damages for the injury

suffered by Ms. Buenos son.

Other relief just and equitable is likewise prayed for.

Quezon City, November 27, 2011.

Atty. A

Counsel for the Plaintiff


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Republic of the Philippines

REGIONAL TRIAL COURTNational Capital Region

Branch ___, Quezon City

JONNA BUENO Civil Case No. 27-112011

Plaintiff, For Damages

- versus -GLORIA SUPERMART, INC.

Defendant.

x - - - - - - - - - - - - - - - - - - - - - x

MEMORANDUM FOR PLAINTIFF

Plaintiff, by counsel, respectfully states that:


Plaintiff Jonna Bueno (hereinafter Jonna) filed the present action for damages against

Defendant Gloria Supermart, Inc. (hereinafter Gloria Supermart). Jonna attributes the injuriessuffered by her minor son to Gloria Supermarts gross negligence in failing to make its premises

safe for customers, thereby making it liable under Art. 2176 and Art. 2180 of the Civil Code.

Defendant maintain that whatever injuries and expenses that were incurred by the Bueno familycan be attributed to Jonnas failure to supervise her child.

STATEMENT OF THE FACTS

1. On May 11, 2010, Jonna and her minor child, 5-year old Ricky, went to Gloria

Supermart at around 10 a.m. in order to shop for groceries.

2. While negotiating the aisles in the supermarket, Rickys attention was captured bya small red ball that was rolling on the floor. Being but a child of tender years, possessed of the

immature disposition of individuals of that age, it was no surprise that Ricky chased after the ball

down the aisle and away from Jonna.3. It was at this point that Ricky suddenly slipped and fell because he had stepped on

a wet section of the aisle. Liquid syrup had seeped out from a bottle located on a nearby shelf

and had formed a puddle on the floor.4. Jonna immediately rushed to her sons side. Ricky was crying in pain and

pointing to his right wrist.

5. Jonna called for help as there were no nearby store clerks. Rene Cstro(hereinafter Rene), the supermarket supervisor eventually came over from another aisle in

order to help out.

6. There were no signs and devices that would warn shoppers that an area of the

floor was wet. There were no nearby cleaners or janitors wiping up the liquid. In fact, the onlynearby Gloria Supermart personnel was Rene in the next aisle and even he seemed unaware that

a hazard existed on the other side of the shelves.


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7. With the aid of Rene, Jonna managed to bring her child to the Philippine

Orthopedic Hospital where Ricky was attended to by Dr. John Lim. Ricky was subjected to anx-ray and it was discovered that surgery was necessary in order to restore the position of a

fractured bone in his right wrist.

8. Said surgery in fact took place and Ricky was thereafter required to stay overnight

at the hospital for purposes of pain management and care. He was discharged the following day.9. Ricky recovered the full use of his hand only after a period of 6 weeks. In that

span of time, he moved with discomfort and difficulty, unable to use his hands.

10. Since the date of Rickys injury and even during his recuperation period, Jonnasuffered the mental anguish, fright and serious anxiety of a mother who was confronted with the

injury of a beloved child.

11. In addition to the physical suffering suffered by Ricky and the mental andemotional strain on Jonna, they were further aggrieved because they had to spend P22,840.00 in

doctors fees, hospitalization expenses, and medicine, as evidenced by receipts, marked as

ANNEX ____.

12. On the other hand, Gloria Supermart, through Rene, claims that it exercised

proper diligence in making the premises safe and that ultimately Jonna was the one who failed tosupervise Ricky. It denied liability for all damages.

ISSUES

Given the foregoing facts and circumstances, the following issues are presentedfor discussion:

1. Whether or not Gloria Supermart may be held liable for the commission of a quasi

delict under Art. 2176 and Art, 2180 of the Civil Code.2. Whether or not Gloria Supermart may be held liable for damages.

ARGUMENTS

I. Gloria Supermart is liable for the commission of a quasi delict that was the proximate

cause of Rickys injuries.

A. The proximate cause of the injuries that Ricky suffered was the negligence of

Gloria Supermarts employees.1. Art. 2176 provides that whoever by act or omission causes damage to another,

there being fault or negligence, is obliged to pay for damage done. In the case of Child

Learning Center, Inc. v. Tagorio (G.R. No. 150920, Nov. 25, 2005), the Supreme Courtstated that in order to establish a quasi-delict case under this provision, the plaintiff must

prove by a preponderance of evidence: (1) the damages suffered by the plaintiff; (2) the

fault or negligence of the defendant or some other person for whose acts he mustrespond; and (3) the connection of cause and effect between the fault or negligence and

damages incurred. (supra)

2. All three conditions obtain in the present case.

3. It is undisputed that Ricky broke his wrist when he slipped and fell on a puddleof liquid syrup that was on the floor of Gloria Supermarts premises. It was the presence

of this syrup that was the proximate cause of Rickys injury. Proximate cause is defined


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as that cause which, in natural and continuous sequence, unbroken by any efficient

intervening cause, produces the injury, and without which the result would not haveoccurred. (Ramos v. C.O.L. Realty Corporation, G.R. No. 184905, Aug. 28, 2009). It

is submitted that Ricky would not have fallen and broke his wrist if he had not slipped on

the syrup.

4. The question now is, is his act of slipping on the syrup an accident or is thesyrups presence on the floor an act of negligence that may be attributed to Gloria

Supermarts employees? If the proximate cause was an accident, clearly no liability can

attach to Gloria Supremart. On the other hand, if the proximate cause is the lattersnegligence, it may properly held liable under the provisions of the Civil Code.

5. An accident pertains to an unforeseen event in which no fault or negligence

attaches to the defendant. On the other hand, negligence is the omission to do somethingwhich 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 do. (Jarco Marketing Corp. v. Court of Appeals, G.R. No.

129792, Dec. 21, 1999)

6. Applying the law to the present case, it is clear that Rickys injury was not causedby accident. As earlier mentioned, Ricky broke his wrist because he slipped and fell due

to liquid syrup that was seeping from a bottle located on the supermarket shelves.Clearly, the liquid should not have been on the floor as common sense would indicate

that it posed a threat to even the most careful of individuals walking past. Anybody

could have slipped and fallen on the syrup.7. The mere presence of the syrup on the floor already negates Gloria Supermarts

claim that it exercised proper diligence in making its premises safe. Based on its past

experience as admitted by Rene, similar accidents have previously occurred. Thus, itcould have easily foreseen that such an accident could happen again. Failure to take the

proper precautions in guarding against such a mishap is an act of negligence on the partof Gloria Supermarts employees.

8. Specifically, Rene, as store supervisor, could have been more vigilant in

patrolling the aisles for spills or the presence of similar hazards. He failed the test for

determining whether a person is negligent that was laid out by the Supreme Court in thecase of Philippine National Construction v. CA (G.R. No. 159270, Aug. 22, 2005). The

test in that case requires a person to act as a prudent man in a similar position and fails to

take the proper precautions against foreseeable harm. He has already had 5 years ofexperience in handling the incidents of the supermarket and yet he did nothing.

9. Moreover, signs and warning devices which would inform shoppers that a hazard

was present were noticeably absent. This oversight evidences even the want of ordinarycare on the part of Rene and the other supermarket employees.

10. Rene and the other employees negligence in patrolling the aisles and placing

proper warning signs/devices is further supported by the fact that, as earlier mentioned: 1)similar accidents often happen, and 2) they knew that children often accompany their

parents to the supermarket. Having advance notice of these facts, they cannot now claim

that Rickys injury was an unforeseeable accident.

B. Gloria Supermart may be held liable for the negligent acts or omissions of its

employees under Art. 2180 of the Civil Code.


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11. Art. 2180 provides that the obligation imposed by Art. 2176 is demandable not

only for ones own acts or omissions, but also for those of persons for whom one isresponsible. Said article further provides 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.12. Applying the foregoing to the present case, it is clear that Rene and other

employees on duty that day were at that time in the service of Gloria Supermart,

performing their regular functions and duties.13. In order to escape liability for its employees negligent acts, Gloria Supermart

must show that it observed the diligence of a a good father of the family to prevent the

damage.14. Unfortunately, Gloria Supermart has failed to show that it exercised such degree

of diligence in supervising Rene and the other employees. The testimonies on record do

not show that it was store policy to take extra precautions against spills and other mishaps

which occur in the ordinary course of a supermarket business. The testimonies on record

also indicate an absence of institutional concern for the safety and well being of childrenthat they knew often accompanied their parents in the store. In fact, Rene testified that

children were the sole responsibility of their parents. While this may be true to a certainextent, considering that Art. 209 of the Civil Code provides that authority over minor

children are with the parents, Gloria Supermart could have, by exercising ordinary care,

prevented or at least minimized the possibility of mishaps occurring. The prevention andremoval of hazards like the syrup on the floor is a duty that falls squarely within its area

of responsibility. Moreover, children cannot be held to the same exacting standards of

diligence that are attributed to an adult. Children of tender years like Ricky, areobviously at greater risk from hazards. Despite Gloria Supermarts knowledge and

awareness of childrens presence on its premises, it did not exercise the diligence of agood father of the family in making sure that it took extra care to supervise and instruct

its employees in minimizing the risk.

15. All told, it is evident that all the conditions of a quasi delict obtain in the present

case: Ricky suffered an injury which in the ordinary course of events would not havehappened had it not been for the negligence of Gloria Supermarts employees in

preventing the occurrence of spillages and other ordinary store incidents and

subsequently, in not promptly cleaning up the spilled liquid syrup and in not placingsigns and other warning devices. Gloria Supermart itself was liable for the acts of its

employees because it failed to exercise the diligence of a good father of the family in

making sure that it was company policy to take precautions against foreseeable accidents,including those that would involve children. Assuming there was such a policy it was

negligent in supervising its employees to ensure that they adhered to such standards and

policies.

II. Gloria Supermart is liable for the payment of damages.

1. Art. 20 of the Civil Code provides that every person who, contrary to law,

wilfully or negligently causes damage to another, shall indemnify the latter for the same.Moreover, Art. 2176 also obliges the party responsible for the quasi delict to pay for the


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damage done. Here, the negligence of Gloria Supermart has been clearly established.

Hence, it cannot escape liability for the payment of damages.A. Gloria Supermart is liable for the payment of actual damages.

2. Except as provided by law or by stipulation, one is entitled to an adequate

compensability for such pecuniary loss suffered by him as he has duly proved. (Art.

2199, Civil Code)3. Jonna incurred P22,840 in doctors fees, hospitalization expenses and medicine,

which are properly documented by receipts (ANNEX A). These expenses would not

have been incurred had the accident not happened as a result of Gloria Supermartsnegligence in making sure that its premises were safe and secure.

B. Gloria Supermart is liable for the payment of moral damages.

4. Moral damages include physical suffering, mental anguish, fright, seriousanxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and

similar injury. (Art. 2217, Civil Code) The article further provides that though

incapable of pecuniary computation, moral damages may be recovered if they are the

proximate result of the defendants wrongful act or omission. (supra)

5. The facts bear out the claim that Jonna suffered mental anguish, fright and seriousanxiety when she saw her son injured and in pain. Her emotional and mental state is

directly connected with the fact that her son slipped, fell and broke his wrist due to thenegligence of Gloria Supermart and its employees.

6. A mother is naturally concerned over the health and well being of her child.

Hence, one can only imagine the suffering that she had to go through when she saw herchild slip and fall, undergo surgery and continue to suffer pain and discomfort for 6

weeks after he was discharged from the hospital.

7. Ricky himself had to endure a significant amount of physical suffering as a resultof his broken wrist. Moral damages can also be recovered for such injuries suffered as a

consequence of quasi delict because the law (Art. 2219, Civil Code) treats it as ananalogous circumstance to those instances in Art. 2217 for which moral damages may be

properly claimed.

8. Note that in addition to the pain he suffered on the day of the injury, such pain

lasted even up to 6 weeks after the surgery, during which time, he had limited range ofmovement in his hands and was also forced to deal with a significant amount of

discomfort.

C. Even assuming there was also negligence on the part of Jonna, such was onlycontributory and will not negate the award of damages.

9. The proximate cause of Rickys injury and the Bueno familys subsequent

suffering is still Gloria Supermarts negligence.10. Hence, Gloria Supermart should still be primarily liable for the payment of

damages.

11. Assuming Jonna should have taken greater care in looking after Ricky, this stilldoes not make her negligence the proximate cause because an accident would still not

necessarily have occurred without the efficient intervening cause of the liquid on the

floor.

12. Contributory negligence, if there is any, will only serve to reduce the damagesthat may be recovered by Jonna.


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PRAYER

WHEREFORE, premises considered, it is respectfully prayed that judgment be

rendered in favor of plaintiff and against defendant by:

1) FINDING Gloria Supermart liable for the commission of negligent acts under

Art. 2176 & 2180 when it failed to maintain safe premises for its customers; causinginjury to Ricky.

2) ORDERING Gloria Supermart to pay both actual damages of P22,840, and

moral damages in an amount this Honorable Court finds just and reasonable under thecircumstances.

Other just and equitable remedies under the circumstances are likewise prayedfor.

Quezon City, November 27, 2011.

(Sgd.) ATTY. REX BELTRANCounsel for Plaintiff

Address:IBP No:

PTR No:

Roll No:MCLE No:

Copy furnished:ATTY EMIL SUNGA

Counsel for Defendant

EXPLANATION

In view of time and manpower restrictions, the above Memorandum was served viaregistered mail as personal service could not be availed of without causing undue hardship to

plaintiff.

(Sgd.) ATTY. REX BELTRAN

Counsel for Palintiff


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TRIAL MEMORANDUM FOR PLAINTIFF


This case is an action for damages filed by Jonna Bueno, Plaintiff, against Gloria

Supermart, Inc., Defendant, before this Honorable Court for the injuries her son, Ricky, sufferedat its premises, for the expense, and for the emotional pain that it caused Plaintiff and her son.


Plaintiff, through counsel, respectfully states that:

1) Plaintiff is Jonna Bueno, 35 years of age, married, and a resident of 89 Little Baguio

St., San Juan City, Metro Manila; Defendant is Gloria Supermart, Inc. with address at

Ortigas Avenue, San Juan, Metro Manila.

2) On 11 May 2011 at about 10:00 AM, Plaintiff and her son Ricky went to Defendantsstore to purchase tomato sauce for her sons spaghetti where there occurred an

unfortunate turn of events.

3) While shopping, Ricky saw a small ball rolling down an aisle. Young at the age of

five, the childs attention was caught by the plaything.

4) Coming after the ball, Ricky did not notice that there was a puddle in the aisle where

he slipped with a heavy bang.

5) Feeling pain in his right wrist, Ricky was immediately brought by plaintiff to thePhilippine Orthopedic Hospital where he was treated.

6) Ricky suffered a bone fracture due to the incident and took him six weeks to recover.

7) Plaintiff incurred hospital expenses amounting to P22,840.00, which includes the

doctors fee and medication.

8) The expenses do not yet cover the mental anguish suffered by the mother and child;

the mother from the risk of losing her own son and Ricky from the six weeks of

recovery he had to undergo aside from the physical pain.

9) From the testimony of Plaintiff (TSN dated 7 June 2011), her allegations are as

follows:

a) Defendants employees are guilty of negligence when they did not clean up

the aisles to remove injurious materials.

b) As the owner of the establishment, Defendant should be made liable for the

injuries caused by its negligent employees in the service of the branch.


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14) In the case at bar, there is an omission on the part of the employees when they failed

to clean up the aisle when their merchandise leaked and formed a puddle. Theemployees should have been vigilant in preventing injuries from happening and this

includes maintaining a safe environment.

15) In failing to maintain a safe environment for the hundreds of shop goers, as claimedby Defendants own witness, Defendant then unduly exposes these hundreds of

people to injury, just like what happened to Ricky.

16) Had the aisle been properly maintained, Ricky would not have been slipped and

suffered from the fall. Without the puddle, there would have been no injury. The

omission then on the part of the Defendants employees is the proximate cause ofthe injury sustained.

17) It cannot be said that Defendants employees observed due diligence. In fact,

Defendants own witness would belie such claim. As stated by the witness, Rene

Castro in his testimony, this type of incident happens at least once a year. It thenbaffles Plaintiff why Defendant does not impose a stricter policy to ensure that such

events never occur. What happened to Ricky, after all, could have been prevented.

18) Furthermore, given the amount of traffic going in and out the store, and the practice

of allowing children to enter supermarkets, Defendant should have installedsafeguards to ensure that its hundreds of customers are not put at risk.

19) Having failed to ensure the safety of its clientele, it failed to exercise due diligence.The particular circumstance of Defendant as well as its history should have been

clear indications that there is a need to adopt a more adequate policy for safety. Theinjury could have been avoided if only they have done so.

II. Defendant is responsible for the negligent act of its employees.

20) The doctrine of imputed liability applies squarely to this case. Art. 2180

makes the owners and managers of an establishment responsible for the damages

caused by their employees in the service of their branches.

21) It cannot be denied that the employees have been remiss in performing their

functions. Had they cleaned up the aisle as necessary, Ricky could not have beeninjured.

22) As the owner of the establishment where the quasi-delict occurred,Defendant should then be held liable under the doctrine of imputed liability.

III. Plaintiff was not negligent

23) Defendant cannot shield itself from liability by claiming that it was Plaintiff

who was negligent. Such claim is untenable as can be seen from the


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evidence presented.

24) Plaintiff, through her testimony, sufficiently established the negligence of

Defendant and its employees based on what she observed. Plaintiff saw her

child chase a ball down the aisle, saw her only son slip on a wet section, and noticed

that one of the bottles have leaked from the shelf.

25) Defendant, on the other hand, did not present any competent evidence to counter

Plaintiffs allegations. Instead, Defendant relied on the mere opinion of itssupermarket supervisor on what he assumes to have transpired. Not having

personally witnessed the event, Rene Castro was not competent to testify as to that

fact.

26) In his testimony, Defendants witness admitted that he was not present at the scene

when it happened but merely based his testimony on what was suggested by what

he saw. Clearly, this is but an opinion expressly excluded by the Rules on

Evidence and is therefore inadmissible.

27) In addition, the actions of Plaintiff do not even suggest negligence on her part.There was nothing wrong with bringing a child in the supermarket since as

admitted by the supervisor, it is an allowed practice to let children enter the

premises with their parents.

28) There is also nothing unnatural with a parent allowing the child to walk ahead and

that does not by itself constitute negligence. Given the playful nature of a five-year-old surrounded by knickknacks of sorts, it is natural for him to be a little

distracted by colorful wrappers and toys.

29) It cannot be believed though that such permission amounted to lack of due

diligence on the part of Plaintiff. It is contrary to human experience that a parent

would allow his or her only child to be exposed to peril.

30) Defendant cannot also seek to be exempted through Art. 221 of the Family Code

which makes the parents liable for the damages and injuries caused by the acts oromission of their unemancipated minor. This is because such provision is

qualified by the statement subject to the appropriate defenses provided by law.

31) In this case, Plaintiff can invoke the provision of quasi-delict and the defense that

it is the Defendant whose negligence was the proximate cause of the injury. While

there was nothing unnatural with the actions of the Plaintiff, the presence of thepuddle was in itself unnatural.

IV. Defendant should be made to pay damages having caused injuries


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32) The claim for actual damages is based on Art. 2199 of the Civil Code. Having

duly proved the amount of damages up to P22,840.00, Plaintiff should be entitledto it as actual damages.

33) Having duly proven negligence on the part of Defendant and its being the

proximate cause of the injury, Defendant should be liable for the amount proven.

34) Since Defendant failed to prove negligence on the part of the Plaintiff, the entire

amount should be shouldered by defendant, without mitigation.

35) Aside from actual damages, moral damages should likewise be awarded for the

physical suffering of Ricky and for the mental anguish suffered by Plaintiff fromthe thought of losing her only child. Art. 2217 of the Civil Code allows such

recovery in cases of quasi-delict causing physical injuries, as provided in Art.

2219.

RELIEF

Wherefore, premises considered, it is respectfully prayed that Defendant be madeliable to pay P500,000.00 for actual damages caused by the negligent act of Defendant and its

employees.

Such other relief which are just and equitable under the circumstances are likewise

prayed for.

26 November 2011, Quezon City

(Sgd.)

(Address)

(IBP No.)(PTR)

(MCLE Compliance)

(Copy furnished)


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PLAINTIFFS MEMORANDUM

Plaintiff, by counsel, respectfully submits its memorandum in the case:


Plaintiff Jonna Bueno, filed an action for damages against Gloria Supermart, Inc., before

the Regional Trial Court of Quezon City. She claims P500,000.00 as damages for the injuries

suffered by her minor son, Ricky, caused by the negligence of the defendants employees and forthe emotional pain and suffering that it caused to them. Defendant Gloria Supermart denies her

claim and asserts that it was not negligent. Instead, it claims that the accident was caused by

Jonnas negligence and she alone should be made to suffer the consequences of her own actions.Both parties have presented their evidences and witnesses. The case is now submitted for

decision.


At about ten in the morning of May 11, 2010, Jonna Bueno and her 5-year old son,

Ricky, were grocery shopping at Gloria Supermart located in Ortigas Avenue, San Juan, MetroManila. Supposedly, they were to buy tomato sauce for Rickys spaghetti along with other

things. In the middle of their shopping, a small ball rolled along the aisle and Ricky ran for it.

However, he stepped over a puddle of syrup and slipped. He fell so hard with a heavy bang thatshrieked in pain. Apparently, he hurt his wrist as he tried to stop his fall. Jonna immediately

come to his sons aid. As she attended him, she noticed that the syrup on the floor seeped out

from a leaking bottle in a nearby shelf. Meanwhile, Rene Castro, the supermarket supervisor,approached her. She asked him to help her carry her son to her car, so that she can rush him to

the hospital. She then brought Ricky to the Philippine Orthopaedic Hospital, where he washandled by Dr. John D. Lim, the physician-on-duty at the emergency room. Dr. Lim operated on

Rickys right wrist. He had to restore the position of his fractured bone. Thereafter, he required

Ricky to stay overnight at the hospital for pain management and care. Ricky was released the

next day. At first, he complained that his wrist caused him great pain. Later on, he moved withdiscomfort and difficulty. He was unable to use both hands. It took him 6 weeks to fully

recover. His mother spent P22,840.00 all in all for his doctors fee, hospitalization and

medication. Moreover, she experienced mental suffering as she witnessed her only sons painfulrecovery.

On the other hand, Rene Castro, Glorias supermarket supervisor, testified for thedefendant. He claimed that at ten in the morning of May 11, 2010, he was fixing the new stock

of instant noodles when he heard a commotion at the next aisle. He quickly walked towards the

noise and saw Ricky lying on the floor and crying in pain. His mother, Jonna, was trying tominister him. He observed that bottles of syrup from a nearby shelf fell from the floor, including

a glass bottle that was broken and spilled part of its contents to the floor. He assisted Jonna in

rushing Ricky to the hospital. While Ricky was undergoing surgery, he talked to Jonna and she

said that her son slipped on the floor because some syrup seeped out of a leaking bottle in one ofthe shelves. She blamed the supermarket for the accident. Though he thought differently, Rene

kept his silence.


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ISSUES

The issues of the case, as determined by the court in its pre-trial order, are as

follows:

1. Whether or not Gloria Supermart is liable for damages for the injury suffered by

Ricky Bueno; and

2. Whether or not Jonna Bueno was contributorily negligent for the accident, whichcalls for the reduction in claimed damages.

ARGUMENTS

1. GLORIA SUPERMART IS LIABLE FOR DAMAGES SINCE ITS

EMPLOYEES NEGLIGENCE WAS THE PROXIMATE CAUSE OF THE

ACCIDENT.

As it can be gleaned from the records, Ricky suffered from a fractured bone when he

tried to stop his fall as he slipped over a puddle of syrup. The syrup apparently seeped out froma broken bottle in a nearby shelf. Ordinarily, the supermarkets employees should have detected

the mess and cleaned the area. At the very least, it should have placed a warning sign informing

buyers to pass by with caution. But it didnt. It failed to meet its responsibility to keep thepremises neat and clear from obstructions. It was negligent in maintaining cleanliness and

should be held accountable if by reason of such negligence, customers have suffered from

mishaps.

In Jarco Marketing Corporation v. Court of Appeals (G.R. 129792, December 21, 1999),the Court defined negligence as 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. Following this

definition, the test of negligence is therefore this: could a prudent man, in the position of theperson to whom negligence is attributed, foresee harm to the person injured as a reasonable

consequence of the course actually pursued? Applying this question to the case, it is clear that

Gloria Supermart was negligent. As a supermarket, tons of customers pass by its aisles everydayto purchase something. It was the responsibility of Gloria to keep those aisles clean and clear in

order to ensure the safety and continued patronage of its buyers. When a bottle of syrup got

broken and its contents spilled on the floor, it was the burden of Gloria to keep on eye out forthese expected eventualities and to immediately address the issue. It should have expected, like

any ordinarily prudent and reasonable man, that a hapless buyer would eventually step on it

without noticing and slip because of it. After all, buyers do not look on the floor when they buytheir groceries. It is common knowledge that they look sideways on the aisles as they search

for the items they need. Gloria should have deployed employees to regularly survey their aisles

and see if they steered clear from obstructions.

This negligence was the proximate cause of Rickys injury. Proximate cause is defined

as that cause, which, in natural and continuous sequence unbroken by any efficient intervening


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cause, produces the injury, and without which the result would not have occurred. (Ramos v.

COL Realty Corp., G.R. No. 184905, August 28, 2009). Had there been no syrup on the floor,Ricky would not have slipped and suffered a bad fall. Even if, admittedly, Ricky was running at

the time he stepped on the puddle, he wouldnt have ordinarily fractured his bone had the floor

been clear from obstructions. Besides, syrups, by their very nature, are transparent. Only a

scrutinizing eye can detect its presence on the floor and buyers are not expected to act in thismanner.

Considering that Gloria Supermarts employees were negligent and such negligence wasthe proximate cause for Rickys injury, Gloria Supermart should be held accountable. Article

2180 of the Civil Code supports this conclusion. It states,

The obligation imposed by Article 2176 is demandable not only

for ones own acts or omissions, but also for those persons for whom one is

responsible.

xxx xxx xxx

The owners and managers of an establishment or enterprise arelikewise responsible for damages caused by their employees in the service of

the branches in which the latter are employed or on the occasion of theirfunctions.

2. JONNA BUENO WAS NOT CONTRIBUTORILY NEGLIGENT FORHER SONS INJURY

Jonna was not negligent in watching over her son, while they were grocery shopping.Indeed, parents have the natural right and duty to take care and discipline their children. But

Jonna did not show lack of due care when she let Ricky run after the ball. The records show thatshe was watching her son at that time. Furthermore, a child running after a ball does not

necessarily mean that he is engaged in play. The child may be actually trying to fetch the ball

and return it to its rightful place or owner. There was no reason for Jonna discipline nor closely

monitor her child at that time. Also, Jonna couldnt have reasonably foreseen her sons mishap.As mentioned earlier, the syrup was presumably transparent and couldnt be detected unless

scrutinized up close. She also had good reason to believe that the supermarket regularly

maintains the cleanliness of its store. There is no basis to find her negligent.

3. GRANTING ARGUENDO THAT THERE IS NO PROOF AS TO

WHO OR WHAT CAUSED THE SYRUP TO FALL ON THEFLOOR, GLORIA SUPERMARKET IS STILL LIABLE UNDER RES

IPSA LOQUITOR.

In his testimony, Rene Castro made a baseless inference that the syrup on the

floor must have come from one of the bottles that Ricky knocked off from the shelf

when he ran wild down the aisle. This should not be given credence since Rene himself testified

that he did not see how the incident happened. Therefore, he did not have the competence totestify on that matter. But granting, for the sake of argument, that there is no proof as to who or

what caused the spillage, Gloria Supermart should still be held liable based on the doctrine of res


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ipsa loquitor. First of all, Rickys accident, as explained earlier, was due to the supermarket

employees negligence in failing to maintain the cleanliness of the store. Secondly, it is withouta doubt that the supermarkets premises is within exclusive management and control of Gloria

Supermart. Thirdly, it has been established that Ricky did not contribute to his injury. Any other

person would have slipped, had they stepped on the syrup-coated floor. All these three elements

put into operation the doctrine of res ipsa loquitor, which strengthens plaintiffs position that thesupermarket is liable for damages.

4. JONNA IS ENTITLED TO ACTUAL DAMAGES AND MORALDAMAGES

Jonna has presented receipts proving that she incurred P22,840.00 in expenses for hersons over-all treatment. Based on Art. 2199 of the Civil Code, she is entitled to actual damages.

In addition, she is entitled for moral damages for the mental suffering she experienced. Since

this action is based on Gloria Supermarts quasi-delict resulting in physical injuries, she should

be allowed to recover it in accordance with Art. 2219 of the Civil Code.

PRAYER

Wherefore, plaintiff prays that the court renders judgment:

1. finding Gloria Supermart liable for damages, and

2. ordering the defendant to pay P500,000.00 all-in-all as damagesincluding P22,840.00 as compensatory damages.

All other just and equitable reliefs are prayed for.

x x x xCounsel for the Plaintiff

Address

Attorney Roll No.

IBPMCLE No.


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MEMORANDUM FOR THE PLAINTIFF

Plaintiff, through the undersigned counsel, unto this Honorable Court respectfully

submits this Memorandum to support her cause of action and alleges:


This is a case of quasi-delict with damages for the injuries sustained by a minor due to an

accident at the defendants supermarket on May 11, 2010.


On direct examination, the plaintiff testified on the following, to wit:

1. Plaintiff is Jonna Bueno, 35 years old, married, and a resident of 89 Little Baguio St.,San Juan City, Metro Manila;

2. She is an accountant by profession;

3. On May 11, 2010 at 10:00 AM, plaintiff with her son Ricky, a 5 year old boy, went to

Gloria Supermart, Inc., to buy some groceries;

4. While picking some groceries, a small ball rolled along the aisle that caught theattention of Ricky who ran after the ball to catch it;

5. Upon trying to catch the ball, plaintiff saw Ricky slipped with a heavy bang on the wet

section of the aisle;

6. Plaintiff immediately came to his rescue to help him as he shrieked from pain in his

wrist which he used to stop his fall;

7. Plaintiff testified that the cause of Rickys fall was due to the puddle of liquid on the

floor that seeped out from a leaking bottle in a nearby shelf;

8. She testified further that there was no supermarket cleaner around during that time and

no warning sign had been placed in the area;

9. Furthermore, she heard someone shout, Hoy, bata ingat! May basa diyan!;

10. Plaintiff asked a store clerk to help her carry Ricky for her to bring him to thePhilippine Orthopedic Hospital;


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11. That her son Ricky was operated in his right wrist to restore the position of a

fractured bone as shown by the X-ray picture;

12. Ricky was able to recover only after six (6) weeks from the accident;

13. That plaintiff incurred P22, 840.00 for doctors fee, hospitalization and medicine asshown by her receipts;

14. She also spent P5, 000.00 for the toys she bought for Ricky to distract him from thepain he suffered;

Moreover, on direct examination and on behalf of Gloria Supermart, Inc., their witnesstestified on the following:

15. Defendants witness is Rene Castro, 55 years old and a resident of 12 V.G. Cruz,

Sampaloc, Manila;

16. He is a supervisor of Gloria Supermart, Inc., and works in the store for five (5) years;

17. He testified that on May 10, 2010, he heard a commotion and found out that Ricky

was lying on the floor in pain;

18. He saw that couples of bottles of syrup in plastic containers, except one glass bottle

was broken and spilled part of its contents on the floor;

19. He speculated that Ricky must have been the one who bumped into the shelf that

caused the glass container to break as accordingly inferred from Rickys position;

Upon cross-examination, defendants witness stated the following:

20. He did not actually see the accident when it happened;

21. There were already accidents resulting in injury in the supermart before as hundreds

of people are shopping in the store;

22. There were even cases of shoplifting in the store;

23. During the accident of Ricky, the Supermart management did not bother to take

pictures of the puddle on the floor and the bottles of syrup that was the cause of Rickys

accident.

STATEMENT OF THE ISSUE/S

1. IS GLORIA SUPERMART, INC., NEGLIGENT IN MAINTAINING ITS STORE

PREMISES TO MAKE IT SAFE FOR ITS CUSTOMERS?


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2. IS THE SUPERMART LIABLE TO PAY DAMAGES FOR THE INJURYSUSTAINED BY RICKYS ACCIDENT?

ARGUMENTS AND DISCUSSION

1. Gloria Supermart, Inc., is negligent by not observing due diligence to keep their storesafe from possible accidents of its customers.

1.1 Based on the facts presented, it is very clear that defendant Gloria Supermart isnegligent and did not observe due diligence in maintaining its store safe and free from possible

accidents as shown by the absence of maintenance personnel who must see to it, from time to

time, that there are wet areas in the floor which might cause customers from slipping off.

1.2 The supermart was also negligent in not placing a warning sign to warn customers inareas where items are in liquid form as there are tendencies that these items may seep or break.

1.3 The failure of the store personnel to check these things regularly constitutes

negligence on their part.

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. (Jarco marketingCorporation v Court of Appeals, G.R. No. 129792, Dec. 21,

1999, 321 SCRA 375)

1.4 Applying the said jurisprudence, the supermart has but failed to do its responsibilitythrough its personnel to act reasonably as a prudent man would do to maintain its premises safe

from accident.

1.5 Aggravating the circumstances was the rolling of the ball that got the attention of

Ricky to ran after it. The ball rolling constitutes an attractive nuisance that will certainly catch

the attention of a child. That ball must have come from the store which is expected to be seelingas it caters the general needs of its customers. The store management then should have also

checked its goods and have them secured especially if they are prone to accidents. In the case of

a ball, it is not only hazardous to children but also to adults especially the aged persons whomight stepped on it, although not hazardous if properly served.

One who maintains on his premises dangerous

instrumentalities or appliances of a character likely toattract children in play, and who fails to exercise ordinary

care to prevent children from playing therewith or resorting


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thereto, is liable to a child of tender age/years who is

injured thereby, even if the child is technically a trespasserin the premises. (Hidalgo Enterprises, Inc. vs. Balandan, et

al., L-3422, June 13, 1952, 91 Phil. 488).

1.6 The testimony of the plaintiff that she heard someone shouting, Hoy, bata, ingat! Maybasa diyan! should not have striken out instead appreciated as it could not be considered

hearsay because it was directly heard by the plaintiff herself and not taken from other person.

1.7 That declaration must be appreciated as part of resgestal as it was made spontaneously

that is while a startling occurrence is taking place or immediately prior or subsequent thereto

with respect to the circumstances thereof, may be given in evidence.

1.8 In the case at bar, that statement only proves that indeed there was already a wet area in

the store where the boy slipped of which regates the defendants witness that it was Ricky who

must have bumped off the bottles causing one of them to break.

1.9 It could therefore be dedused from that circumstances that the supermart is negligent

because someone had already observed the wet floor to be accident prone.

2. The supermart is liable to pay damages for the injury sustained by Rickys accident.

2.1 The accident should not have happened without the fault and negligence of thesupermart and its employees as presented above. The law provides that:

Every person who, contrary to law, willfully or

negligently causes damage to another, shall indemnity thelatter for the same (Art. 20, New Civil Code)

2.2 This is supported by Article 2176 which states that:

Whoever by act or omission causes damge to another,

there being fault or negligence, is obliged to pay for thedamage 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 provision of thischapter.

2.3 In the instant case, the Supermart is liable to pay damages plus the expenses incurred

during the medication of Ricky because there should have been no such damage, injury andexpenses should the supermart been not negligent in observing due diligence to check their

premises, as inunciated by Art. 2180, which states that:


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The obligation imposed by Art. 2176 is demandable notonly for ones own acts or omissions but also for those of

persons for whom one is responsiblexxx. The owners and

managers of an establishment or enterprise are likewise

responsible for damages caused by their employees in theservice of the branches in which the latter are employed or

in the occasion of their functions.

2.4 Applying this provision of law to the instant case, it is then the liability of the owner of

Gloria Supermart and his store employees who are neglect of their duties to observe due

diligence. The owner or employer is vicariously liable with his employees to pay damages to theplaintiff for the injuries she sustained.

WHEREFORE, it is respectfully prayed that this Honorable Court will decide in favor of

the plaintiff and against defendant, Gloria Supermart, Inc., the following reliefs:

1. Payment of actual or compensatory damages in the amount of P27, 840.00;

2. Moral damages for the physical suffering of the victim and mental anguish, fright and

serious anxiety experienced by the plaintiff;

3. Exemplary or corrective damages;

4. Cost of litigation

Other measures of reliefs that are just and equitable under the premises are likewise

prayed for.

(Sgd.) ATTY. REX BELTRAN

Counsel for the PlaintiffManila City

I.B.P. No. _______dated_____

Roll No. ________dated _____PTR No. _______dated ______

MCLE No. ______dated _____


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PLAINTIFFS MEMORANDUM

THE CASE

Plaintiff Jonna Bueno (Jonna) filed an action for damages of P500,000 against Gloria

Supermart, Inc. for the injuries suffered by her son, Ricky, for the expense, and for the emotionalpain that it brought to him and Jonna.

THE FACTS

On May 11, 2010, at about 10 a.m., Jonna went to Gloria Supermart to buy groceries

needed in their house. She was accompanied by her 5-year old son, Ricky. While Jonna wasshopping for groceries a loose ball rolling along the aisle caught Rickys attention and went after

it. He then slipped on a wet section of the aisle from a spilled syrup.

Immediately, Jonna came to Rickys side to help him. No sign near the puddle warning

customers of the danger was present although she heard someone shouted Hoy, bata, ingat!May basa diyan! She then asked a store clerk to help her carry Ricky so she could bring him to

the hospital.

Dr. Lim, an orthopedic surgeon attended Ricky. The doctor operated him to restore the

position of the fractured bone. Ricky stayed overnight at the hospital for pain management andcare. He was released on the following day.

Defendant, Gloria Supermart, Inc., disclaims liability saying that it exercised properdiligence in making its premises safe for its customers; that the accident was something it could

not reasonably anticipate and so beyond its control; that in any event Ricky and her mothercontributed to Ricky slipping on the floor and suffering physical injury and pain; and that Gloria

Supermart provided immediate help and assistance to Ricky and her mother.

ISSUES

I.

PROCEDURAL ISSUE

Whether the statement by someone not presented as witness warning Ricky, Hoy, bata,

ingat! May basa diyan. admissible in evidence.

II.

SUBSTANTIVE ISSUES

A.

Whether Gloria Supermarket is liable for damages in not making its premises safe for its

customers.

B.


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Whether Jonna is guilty of contributory negligence.

C.

Whether Gloria Supermart is liable for actual and moral damages.

THE ARGUMENTS

I. The declarants statement is admissible in evidence as part of the res gestae.

During Jonnas testimony, she narrated that she heard someone shouted, Hoy, bata,

ingat! May basa diyan! before Ricky slipped. Gloria Supermart claims that such statement ishearsay.

As a rule, a witness can testify only to those facts which he has personal knowledge; that

is, which are derived from his own perception, except as otherwise provided in the Rules (Rules

of Court). One of the exceptions to the hearsay rule is the so-called res gestae statements.

Res gestae statement are those made by a person while a startling occurrence is takingplace or immediately prior or subsequent thereto with respect of the circumstances thereof. The

statement made by the stranger is considered as part of res gestae as it was made immediately

prior to Rickys slipping. The declarant warned Ricky of the impending danger the wet floormay bring. Immediately after the precaution, Ricky slipped. The statement concerned the

occurrence in question and its immediately attending circumstances. The declarant had no

opportunity to contrive or devise such statement before Rickys slipping. Thus, declarantsstatement shows that the floor was wet when Ricky slipped.

II. SUBSTANTIVE ISSUES

A. Gloria Supermart is negligent in not making its premises safe for its customers.

The Proximate Cause of the Injury

was the Syrup Spilled on the Floor

Proximate cause is defined as that cause, which, in natural and continuous sequence,

unbroken by any efficient intervening cause, produces the injury, and without which the result

would not have occurred (Ramos v. COL Realty Corporation). There is no iota of doubt that theproximate cause of Rickys slipping is the wet portion on the floor. Ricky would not have

slipped had the puddle been cleaned by Gloria Supermarts employees.

Gloria failed to provide proper

safeguard measures; its employees

were negligent

As testified by Jonna, there was no supermarket cleaner to clean the wet area nor there

was no sign placed near the puddle or around it. Considering that Gloria Supermarkets


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supervisor was just at the next aisle fixing the stocks, he should have heard the sound of an item

that was knocked off. It is quite impossible not to notice the fallen objects in such a shortdistance especially the one that was broken was a glass bottle.

Gloria Supermarkets witness even testified that every now and then accidents and

shoplifting do occur. These things are unavoidable since hundreds of people come to thesupermarket everyday. Having known the fact that plenty of people do come to their supermart

everyday, Gloria Supermarket should have provided the proper safeguard measures to prevent

the occurrence of such events. It should have reasonably anticipated the happening of suchevents.

Gloria Supermarkets employees should always be alert not only for the safety of itscustomers but also as to properly guard its products from thief or vandalizing. Store clerks

should always be around to attend to customers inquiry and needs.

B. No Contributory Negligence on the Part of Jonna and Ricky.

No negligence on Jonnas part

While it is true that the responsibility for looking after Rickys needs and safety while in

the supermarket is primarily the responsibility of Jonna, it cannot be denied that the accident

could not have happened if not for the spilled liquid on the floor. The evidence presented showsthat the negligence is on the part of Gloria Supermarket. She was beside Ricky in their shopping

and if not because of the loose ball, he would not have been running wild down the aisle.

No negligence on the part of Ricky

The bumping off the shelf containing the syrup bottles could not have been caused by

Ricky. It could have been caused by someone else. In fact, someone even told Ricky to be

careful and keep off the wet portion. This only suggests that the spilled syrup was caused by

someone else and already been there before the happening of the event.

Even assuming that it was Ricky who bumped the shelf, he could not be faulted under the

doctrine of attractive nuisance. Under the doctrine of attractive nuisance, one who maintains onhis premises dangerous instrumentalities or appliances of a character likely to attract children in

play, and who fails to exercise ordinary care to prevent children from playing therewith or

resorting thereto, is liable to a child of tender years who is injured thereby, even if the child istechnically a trespasser in the premises (Hidalgo Enterprises v. Balandan). There is no question

that Ricky is a child of tender years. He was attracted by the loose ball rolling down the aisle.

The ball could have fallen from one of Gloria Supermarkets shelf. Thus, Ricky would not havebumped the shelf if not for the loose ball.

C. Jonna is entitled to actual and moral damages.

Under Article 2176 of the New Civil Code, whoever by act or omission causes damage to

another, there being fault or negligence, is obliged to pay for the damage done. Gloria


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Supermarket being negligent is liable to pay actual and moral damages. The

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