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Keele Zeeble Republic of the Philippines

1-WASD Regional Trial Court

Makati City

SPECIAL DIVISION

JACK DOE, and JILL DOE

Plaintiff,

-versus- Civil Case No.

For: Gross Negligence

IMPERIAL BUCKET CORPORATION

Accused.

X--------------------------------------------------X

MEMORANDUM FOR THE PEOPLE

JACK DOE and JILL DOE, by the undersigned Special Prosecution Panel and

unto this Honorable Court hereby respectfully avers that:

 PREFATORY STATEMENT

“A person may cause evil to others not only by his actions but by his inaction, and

in either case he is justly accountable to them for the injury.” – John Stuart Mill

The instant case is very simple,

On October 10, 2010, plaintiffs Jack Doe and Jill Doe purchased the Imperial

Bucket Corporation, defendant, referred to as “The Pail”.

Such product however, contained no directions for safe use, no warnings of any

kind about the potential dangers of the pail, and no safety devices to protect individuals

from suffering injuries when using this pail. The pail could be operated by minors who

could not possibly aware of the inherent dangers in the defective design of the pail and

would therefore, may be subject to injury. The product only contained the package where

it was packed. It contained no manuals or modes of instructions in which one may read

how to use the pail and up to no avail has any warnings in order to sustain injuries in

using the pail.

The defendant, Imperial Bucket Corporation, is aware for an indeterminate time

that the bucket they callously manufactured and offered to market had serious design

flaws and under certain conditions could cause severe injury, nevertheless did continue to

manufacture and market such a bucket to the public. They failed to take the necessary

steps to inform the public of the potential for injury inherent in the use of their product.
The continued to sell their products to the wide market even though they knew of the

large potential of the great injury that it may cause to their consumers.

The plaintiffs then used the subject product to convey such pail up a steep incline

referred to as “The Hill”. They were able to move forward in a skipping (proceeded with

leaps and bounds) manner up the hill, holding on to the pail, which swung precariously

between them. Upon reaching the top of said hill, they proceeded to fill the pail with a

clear liquid, herein referred to as “water”. The Plaintiffs were both completely untrained

in the proper operation of Defendant’s bucket and so they unknowingly filled the pail

with water without knowing the perils that it may bring. They could not possibly have

known that the defective design of the pail permitted it to be filled with water to an

unsafe level.

As Plaintiffs began carrying the now hazardous steel pail down the side of

said hill, the water began shifting in the pail, causing the weight to be unevenly

distributed. The motion of the water in the pail here referred as “sloshing”, did cause a

partial reduction in the contents of the pail which then had the effect of causing an

additional unbalancing of the pail. Jack and Jill, which are both neither experienced in

the trade of carrying a pail of water down a steep incline, suffered extreme difficulty in

maintaining control over the pail. In their effort to retain control of the pail, both Jack and

Jill, individually and simultaneously, did lose their balance owing entirely to the

instability of the pail.

Due to the loss of balance, the Plaintiffs went tumbling down the hill which

caused them to suffer and still suffer, and continue to suffer physical and mental pain,

and great bodily injuries. Jack broke his crown in three different places in addition to
fracturing his ribs and right arm. Jill sustained bruises and contusions to her legs, ankles,

and wrist. Some of these injuries may well be of a permanent nature so as to affect the

lives of these minors forever and one day.

In short, accused Imperial Bucket Corporation failed to exercise due diligence in

selling their products to the market, that they did instead exercised gross negligence

which endangers the public health and safety. Imperial Bucket Corporation is to be held

liable for the injuries and damages sustained by Jack Doe and Jill Doe due to the fact that

they failed to exercise due diligence in warning their consumers about the potential

damages that their product may produce.

STATEMENT OF THE CASE

AND ANTECEDENT FACTS

On October 15, 2010, an information was filed before this Honorable Court

accusing Imperial Bucket Corporation of failing to exercise due diligence and instead

showed gross negligence in marketing their product, “The Pail”, and in violation of

Republic Act. 7394 , “The Consumer Act of the Philippines”, and also of violating

Article 2176 of the Civil Code of the Philippines alleging as follows:

That on or about October 2010, Imperial Bucket Corporation, being

aware for an indeterminate time that the bucket they callously manufactured and

offered to market had serious design flaws and under certain conditions could

cause severe injury, nevertheless did continue to manufacture and market such a
 bucket to the public. They failed to take the necessary steps to inform the public of

the potential for injury inherent in the use of their product. That they did so, and

continue to do so, indicates a disregard for the public welfare, for which punitive

damages might be deemed appropriate.

CONTRARY TO LAW

On October 15, 2010, Jack Doe and Jill Doe filed a civil case against Imperial

Bucket Corporation. They Plaintiffs presented their documentary exhibits in the course of

their testimony and of the foregoing witnesses thereby offering the following exhibits for

their respective purposes to wit:

EXHIBIT DESCRIPTION PURPOSE

A The pail manufactured by To prove that the product

Imperial Bucket Corp. made by defendant was of dangerous

Made of steel and weighed design which proves to be of unsafe

1.6 pounds when empty use.

And designed to be carried

By a rounded metal handle

B Receipt dated 10/10/10 To prove that the purchase of the pail

Was made by Jack Doe and Jill

Doe

C Package which used to To prove that the product did not

Contain the pail which come with any warning or manual

Does not contain anything to warn the consumer of the danger

 Aside from the pail that the misuse of the product may

Itself bring.

D Medical Report of Jack To prove that the Plaintiffs

Doe and Jill Doe sustained damages from using

The pail manufactured by

Defendant.

All the foregoing exhibits were further offered to prove that the accused Imperial

Bucket Corporation failed to exercise due diligence in the sale of their products which

produced injuries to the Plaintiffs.

Hence, the Instant Memorandum

ISSUE

DID IMPERIAL BUCKET CORPORATION FAIL TO EXERCISE DUE DILIGENCE

AND INSTEAD SHOWED GROSS NEGLIGENCE IN THE MARKET OF THEIR

“PAIL” AND VIOLATED REPUBLIC ACT 7394, “THE CONSUMER ACT OF THE

PHILIPPINES”, RESULTING TO THE INJURIES SUSTAINED BY JACK DOE AND

JILL DOE AND OF VIOLATING ARTICLE 2176 OF THE CIVIL CODE OF THE

PHILIPPINES?

CONCLUSION
 ACCUSED IMPERIAL BUCKET CORPORATION FAILED TO EXERCISE DUE

DILIGENCE IN THE MARKET OF THEIR PRODUCTS AND VIOLATED R.A.7394

WHICH RESULTED TO THE INJURIES SUSTAINED BY JACK DOE AND JILL

DOE IN WHICH THEY MUST PAY FOR THE DAMAGES DONE.

DISCUSSION

The continued negligence of Imperial Bucket Corporation in continuing to

manufacture and sell their defective pails in the wide market with its flawed designs and

failure to warn the consumers about its potential dangers, and failing to provide a

warning or manual on how to use their pails is an outright negligence and violation of

R.A.9374 in which the defendant is liable for all the damages and injuries that it may

produce.

Art. 2176 of the Civil Code holds a person civilly liable for the damage caused by

his act or omission constituting fault or negligence. This article provides:

“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 provision of this chapter”.

The first sentence of the above-quoted legal provision is similar to the

provisions of Art. 1902 of the Spanish Civil Code. The second sentence was

added for better clarity but the essence of the precept contained in Art. 1902

of the Spanish Civil Code has not been changed. Consequently, the decisions

of the Supreme Court construing and applying the provision of Article 1902
of the Spanish Civil Code are also applicable to Article 2176 of the Civil

Code.

Art. 2176 of the Civil Code covers a very broad field. The situations

to which it is applicable are innumerable. It must, therefore, be carefully

studied and analyzed.

Liability for personal acts and omissions is founded on that indisputable principle

of justice recognized by all legislations that when a person by his act or omission causes

damage or prejudice to another, a juridical relation is created by virtue of which the

injured person acquires a right to be indemnified and the person causing the damage is

charged with the corresponding duty of repairing the damage. The reason for this is found

in the obvious truth that man should subordinate his acts to the precepts of prudence and,

if he fails to observe them and causes damage to another, he must repair the damage.

In order that liability under Art.2176 of the Civil Code will arise, the following

requisites must exist:

(a) There must be damage or prejudice which must be proven by

the party claiming it;

(b) There must be an unlawful act or omission amounting to fault

or negligence; and

(c) There must be a direct causal connection between the damage

or prejudice and the act or omission.

Fault, in general, signifies a voluntary act or omission which causes damage to the

right of another giving rise to an obligation on the part of the actor to repair such damage.

But fault in civil law must be distinguished from dolo. If the act or omission causing the
damage is committed with intent to cause such damage, it is dolo, the act becomes a

crime, and is governed by the Revised Penal Code. When intent is absent, it is fault or

culpa. This distinction between the two concepts depends on the will of the actor rather

than on his intelligence.

In its restricted concept, “fault” is of two kinds, to wit:

(a) “Fault substantive and independent” which, on account of its

origin, gives rise to an obligation between two persons not similarly bound

by any other obligation;

(b) As “an incident in the performance of an obligation” which

already existed, which cannot be presumed to exist without the other, and

which increases the liability arising from the already existing obligation.

The fault referred to in Art. 2176 of the New Civil Code is “fault

substantive and independent” which in itself is a source of obligations. This

kind of fault is also known as “culpa extra-contractual” or “culpa

aquiliana.”

Fault as an incident in the performance of a pre-existing contract is

known as “contractual fault” or “culpa contractual.”

The distinction between these two kinds of fault is important because fault

substantive and independent, which in itself is a source of obligations, is governed by Art

2176 of the Civil Code, while contractual fault is governed by Articles 1170, 1172 and

1173 of the same Code. Liability under Art. 2176 may arise either from “fault” or

“negligence”. In other words, liability may be incurred either by an “act” or through an

“omission”. Fault requires the execution of a positive act which causes damage to
another, while negligence consists in the omission to do acts which result also in damage

to another. The act or omission must be without intent to cause damage the injured party.

First let us look at the first element in which damages may be incurred from

Article 2176 of the Revised Penal Code with respect to the case at hand:

(a) There must be damage or prejudice which must be proven by

the party claiming it;

Yes, there are damages incurred by Jack Doe and Jill Doe which is proved by

Exhibit D, the medical report provided, as to the wounds, bruise, and injuries sustained

by the Plaintiffs.

The second element states that:

(b) There must be an unlawful act or omission amounting to fault

or negligence;

Yes, there is an unlawful act or rather an omission amounting to fault or

negligence. The Defendant, Imperial Bucket Corporation, failed to follow Article 11 of

Republic Act No. 7394, The Consumer Act of the Philippines, where;

ARTICLE 11. Amendment and Revocation of Declaration of the Injurious, Unsafe

or Dangerous
 Character of a Consumer Product - Any interested person may petition the

appropriate department to

commence a proceeding for the issuance of an amendment or revocation of a

consumer product safety

rule or an order declaring a consumer product injurious and unsafe.

In case the department, upon petition by an interested party or its own initiative

and after due notice and

hearing, determines a consumer product to be substandard or materially

defective, it shall so notify the

manufacturer, distributor or seller thereof of such finding and order such

manufacturer, distributor or seller

to:

a) give notice to the public of the defect or failure to comply with the product

safety standards;

and

b) give notice to each distributor or retailer of such product.

The department shall also direct the manufacturer, distributor or seller of such

product to extend any or all

of the following remedies to the injured person:

a) to bring such product into conformity with the requirements of the applicable

consumer

product standards or to repair the defect in order to conform with the same;
 b) to replace the product with a like or equivalent product which complies with

the applicable

consumer product standards which does not contain the defect;

c) to refund the purchase price of the product less a reasonable allowance for

use; and

d) to pay the consumer reasonable damages as may be determined by the

department.

The manufacturer, distributor or seller shall not charge a consumer who avails

himself of the rem edy as

provided above of any expense and cost that may be incurred.

The defendant failed to warn its consumers about the probable injuries one may

sustain in using their product and by failing to do so they have violated R.A.7394 which

is proved by Exhibit A and Exhibit C.

There is liability arising from fault in the case of Imperial Bucket Corporation’s

pail as they failed to provide the necessary warning to accompany their products so that

the consumer may avoid injuries and use the pail in its proper manner. The Imperial

Bucket was aware of the dangers that it may produce but nonetheless, they still never or

even attempted to pull out their products or change the design of their manufactured

products. The defendant therefore is liable for torts.

The earlier written defined “tort” as “an unlawful violation of a private legal right,

not created by contract, which gives rise to a commonlaw action for damages.“Tortious

liability arises from the breach of a duty primarily fixed by the laws: such duty is toward
persons generally, and its breach is redressible by an action for unliquidated damages.”

(Throckmorton’s Colley on Torts, p. 2; Burdick on Torts, 3rd ed. 1913, p. 12; Salmond,

Law of Torts, 8th ed. 1934, p. 15; Bouvier’s Law Dict. Rawie’s 3rd Rev., Vol. 3, p. 3285.)

Torts are civil wrongs, but they are not crimes nor do they arise from contracts.

The definition of torts is still open for discussion in the United States and this is one of

the definitions, proposed by Winfield:

“Tortuous liability arise[s] from the breach of a duty primarily fixed by the laws: such
duty is toward persons generally, and its breach is redressible by an action for
unliquidated damages.”

The Philippine definition of tort came from the Anglo American regime and could

be said to be a blend of common law and civil law. It should be emphasized, however,

that the legal provisions governing fault and negligence, which are the principal sources

of tort liability, are found in the Civil Code. It is, therefore, indisputable that the

Philippine law on torts is basically civil law, and not common law.

Many of the legal wrongs classified as “torts” in common law are actionable in

Philippine law as quasi-delicts, while other are considered and treated as crimes and,

therefore, governed by the Revised Penal Code. The Tort which is incurred by Imperial

Bucket Corporation is that of Gross negligence which resulted in serious physical injuries

against the Plaintiffs, Jack Doe, and Jill Doe.

Gross Negligence is defined in Caunan v. Filipinas, 56 Phil G.R. No. L-34194 as,

that is, the want of any or slight care, which thereafter evolved into "notorious

negligence," which is even stronger in significance. This type of Gross Negligence may
also further be defined in relation to the case at hand in Metal Forming Corporation v.

Office of the President G.R. No. 111386 August 28, 1995, where it is defined as failing to

deliver the necessary accessories for the proper installation of the structure, as such in our

case the failure to attach a warning or manual relating to the use of the pail or securing

such product so as not to produce injuries.

We can also say that the case is similar in a way to the popular case of Liebeck v.

McDonald's Restaurants, also known as the "McDonald's coffee case and the hot coffee

lawsuit is a 1994 product liability lawsuit that became a flashpoint in the debate in the

U.S. over tort reform after a jury awarded $2.86 million to a woman who burned herself

with hot coffee she purchased from fast food restaurant McDonald's. That though

McDonald’s was fully aware of the dangers that their coffee cups have produced since

they have received reports about the dangers of their product they nonetheless, continued

selling the said product amidst the threat that it enjoins against the public. They also

failed to warn the public about the potential dangers that one may incur in buying their

coffee where they were ordered to indemnify the injuries sustained by the 70 year old

Liebeck. With respect to the above-mentioned facts, we can also say that such is the same

with the facts in the case on hand, where the manufacturer also failed to warn the

consumers about the potential dangers of their product.

Also, it was ruled in U.S. v. Siy Cong Bien 30 Phil G.R. No. L-8646, that While it

is true that, as a rule and on principles of abstract justice, men are not and should not be

held criminally responsible for acts committed by them without guilty knowledge and

criminal or at least evil intent (Bishop's New Crim. Law, Vol. I, sec. 286), the courts have
always recognized the power of the legislature, on grounds of public policy and

compelled by necessity, "the great master of things," to forbid in a limited class of cases

the doing of certain acts, and to make their commission criminal without regard to the

intent of the doer. (U. S. vs. Go Chico, 14 Phil. Rep., 128; U. S. vs. Ah Chong, 15 Phil.

Rep., 488.) In such cases no judicial authority has the power to require, in the

enforcement of the law, such knowledge or motive to be shown. As was said in the case

of State vs. McBrayer (98 N. C., 619, 623):

It is a mistaken notion that positive, willful intent, as distinguished from a mere intent, to

violate the criminal law, is an essential ingredient in every criminal offense, and that

where there is the absence of such intent there is no offense; this is especially so as to

statutory offenses. When the statute plainly forbids an act to be done, and it is done by

some person, the law implies conclusively the guilty intent, although the offender was

honestly mistaken as to the meaning of the law he violates. When the language is plain

and positive, and the offense is not made to depend upon the positive, will intent and

purpose, nothing is left to interpretation.

In the case of United States vs. Go Chico (14 Phil. Rep., 128, 138) it was said

that: "Care must be exercised in distinguishing the difference between the intent to

commit the crime and the intent to perpetrate the act."

The intent to commit an act prohibited and penalized by statute must, of course,

always appear before a conviction upon a charge of the commission of a crime can be

maintained. But whether or not the existence of guilty knowledge and criminal or evil

intent, that is to say, the conscious intent or will to violate the statute, just also appear in
order to sustain a judgment of conviction is a question which must be determined in each

case by reference to the language of the statute defining the offense.

FINAL STATEMENT

Therefore, the foregoing discussion shows that the Plaintiff and their legal counsel

have shown and presented clear and convincing evidence proving with absolute certainty

all the elements in the Gross Negligence evidently exercised by the defendant, Imperial

Bucket Corporation in violation of R.A. 7394 and of Art. 2176 of the civil code of the

Philippines.

WHEREFORE, guided by the light of the foregoing premises, it is respectfully

prayed that Defendant, Imperial Bucket Corporation, be liable and pay the damages

incurred by Plaintiffs, Jack Doe and Jill Doe, amounting to Five Million Pesos Only

(Php.5,000,000.00)