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PLAINTIFF’S 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 emotional pain 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 was shopping for groceries a loose ball rolling along the aisle caught Ricky’s attention and went after it. He then slipped on a wet section of the aisle from a spilled syrup.

Immediately, Jonna came to Ricky’s 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.

The doctor operated him to restore the

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

Dr. Lim, an orthopedic surgeon attended Ricky.

Defendant, Gloria Supermart, Inc., disclaims liability saying that it exercised proper diligence 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 mother contributed 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.

Whether Jonna is guilty of contributory negligence.

C.

Whether Gloria Supermart is liable for actual and moral damages.

THE ARGUMENTS

I. The declarant’s statement is admissible in evidence as part of the res gestae.

During Jonna’s testimony, she narrated that she heard someone shouted, “Hoy, bata,

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

hearsay.

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 taking place 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 Ricky’s slipping. The declarant warned Ricky of the impending danger the wet floor may 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 Ricky’s slipping. Thus, declarant’s statement 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 the proximate cause of Ricky’s slipping is the wet portion on the floor. Ricky would not have slipped had the puddle been cleaned by Gloria Supermart’s 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 Supermarket’s

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 short distance especially the one that was broken was a glass bottle.

Gloria Supermarket’s witness even testified that every now and then accidents and shoplifting do occur. These things are unavoidable since hundreds of people come to the supermarket 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 such

events.

Gloria Supermarket’s employees should always be alert not only for the safety of its customers but also as to properly guard its products from thief or vandalizing. Store clerks should always be around to attend to customer’s inquiry and needs.

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

No negligence on Jonna’s part

While it is true that the responsibility for looking after Ricky’s 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 shows that 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 on his 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 is technically 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 Supermarket’s shelf. Thus, Ricky would not have bumped 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

Supermarket being negligent is liable to pay actual and moral damages. The actual or compensatory damages includes the hospitalization and medicine expenses and also for toys bought to distract Ricky from the pain that he suffered. Gloria Supermarket is liable for moral damages for the serious anxiety suffered by Jonna and her husband. Under Article 2219 of the New Civil Code provides that moral damages may be recovered for quasi delicts causing physical injuries.

CONCLUSION

Defendant Gloria Supermarket is liable for the negligent acts of its employees. Under the concept of vicarious liability, the owners and managers of an establishment are likewise responsible for damages caused by their employees. (Article 2180, NCC)

PRAYER

WHEREFORE, premises considered, it is respectfully prayed for that:

1)

Actual damages in the amount of P22,840 for doctor’s fees, hospitalization and

2)

medicine and the amount of P5,000 for toys bought to distract Ricky from the pain he suffered be awarded; Moral damages in the amount of P500,000 be awarded for the emotional pain and

3)

sufferings brought to Jonna and her family; All other reliefs just and equitable under the circumstances are prayed for.

Manila for Quezon City, November 27, 2011

Copy Furnished:

Atty. Emil Sunga Counsel for defendant

ATTY. REX BELTRAN Counsel for Plaintiff PTR No. 54815, 1/17/2011 IBP No. 589546 Roll of Attorneys No. 8147 MCLE Compliance No. II-843

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