Jarco Marketing v.

CA

Facts
Criselda and Zhieneth Aguilar (6 years old) were at the 2nd floor of Syvel's Department Store. Criselda
was signing her credit card slip when she felt a sudden gust of wind and heard a loud thud. When she
looked behind her, she saw her daughter pinned by the bulk of the store's gift wrapping counter. Zhieneth
was immediately rushed to Makati Medical Center where she was operated and after 14 days died. After
her burial, Sps. Aguilar demanded the reimbursement of hospitalization, medical bills, and wake and
funeral expenses from the petitioners, but they refused to pay. Sps. Aguilar filed a complaint for damages.

The petitioners alleged that 1.) Criselda was negligent in exercising care and diligence over her daughter
by allowing her to freely roam around in a store with glassware and appliances; 2.) Zhieneth was guilty of
contributory negligence for climbing the counter, thereby triggering its collapse; 3.) Counter was made of
sturdy wood with strong support, and it has never fell nor collapsed for the past 15 years since its
construction; and 4. Jarco Marketing maintained that it observed due diligence of a good father of the
family.

The spouses contended that

RTC dismissed the complaint. The CA reversed RTC, ruling in favor of Sps. Aguilar. Petitioners were
negligent in maintaining a structurally dangerous counter [it's shaped like an inverted L; the top is wider
than the base; weight of the upper portion not evenly distributed nor supported by the narrow base]. Two
former employees brought this to the attention of the management but the latter ignored their concern. CA
said the incident could have been avoided had petitioners repaired this defective counter. The contention
that it has been there for a long time without a prior incident is immaterial. Zhieneth was incapable of
negligence or other tort.Criselda was absolved of any negligence.

Issues
1. WON Zhieneth's death was accidental. NO, it is Negligence
2. WON Zhieneth was guilty of contributory negligence. NO
Held
1. Accident v. Negligence - they are intrinsically contradictory
ACCIDENT pertains to an unforeseen event in which no fault or negligence attaches to defendant (or if it
happens wholly or partly through human agency, it is an event which under the circumstances is unusual
or unexpected by the person to whom it happens); there is exercise of ordinary care here

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

Alternatively, it is the failure to observe, for the protection of another person's interest, that degree of
care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers
injury Picart v. Smith lays down the test to determine WON negligence exists: Did the defendant in doing
the alleged negligent act use that reasonable care and caution which an ordinary prudent person would
have used in the same situation? If not, he is guilty of negligence.

SC found that Zhieneth performed no act that facilitated her death. Basis is her statement to the doctor as
related by former employee Gonzales. It was made part of the res gestae since she made the statement
immediately subsequent to the startling occurrence. It is axiomatic that matters relating to declarations of
pain or suffering and statements made to a physician are generally considered declarations and
admissions. Also, the court considered the fact that Zhieneth was of a tender age (and in so much pain!),
so it would be unthinkable that she would lie.

2. Conclusive presumption that children below 9 are incapable of contributory negligence is applied.

Judge Sangco [book author] says that children below 9 is conclusively presumed to have acted without
discernment, and are exempt from criminal liability. Since negligence may be a felony and a QD, it
required discernment as a condition of liability, so therefore, said children are presumed to be incapable
of negligence.
Even if contributory negligence would be attributed to Zhieneth, no injury should have occurred if
petitioners' theory that the counter is stable and sturdy is to be believed. Criselda is absolved from any
contributory negligence, since it was reasonable for her to let go of her child to sign a slip.