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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 defendants 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 aisles 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 doctors 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.

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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 Jonnas 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 mothers 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 Rickys 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

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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 defendants 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 stores 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 childs 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.

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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 GSIs 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 mothers 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.

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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 ones 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 injurys 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 sons 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

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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 defendants 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 Rickys 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 supermarkets premises, Jonna cannot hold the supermarkets 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

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Jonnas part. With contributory negligence established, the lingering legal question may now be answered. Under Article 2179 of the Civil Code, when the plaintiffs 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 plaintiffs son; 2. Thereby dismiss this case for lack of merit; and 3. Deny the plaintiffs demand for the defendant to pay her 500,000 PHP in damages