Memorandum 5p2l5p

Republic of the Philippines National Capital Judicial Region Regional Trial Court Quezon City --O-JONNA BUENO, Plaintiff, Civil Case No. 71791 -versusGLORIA SUPERMART, Defendant. x---------------------x

MEMORANDUM Plaintiff, through the undersigned counsel, most respectfully submits this Memorandum, as follows: Statement of Facts Plaintiff, Jonna Bueno, of legal age, married, Filipino, and a resident of 89 Little Baguio Street, San Juan City, Metro Manila, has been a long-time shopper of the Defendant, Gloria Supermart, with a business address on Ortigas Avenue, San Juan City, Metro Manila. 1. On the 11th of May, 2010, plaintiff Jonna Bueno, together with her son, Ricky, went to defendant Gloria Supermart, to buy some groceries. 2. While picking up items from the shelves, a ball rolled along the aisle, and Ricky ran after it in an attempt to catch it. He then slipped, breaking his fall with his right hand, thus, injuring his wrist. 3. The plaintiff alleges in her testimony that there was a wet puddle of liquid that leaked from a bottle from a nearby shelf that caused Ricky’s slip. 4. The plaintiff moreover alleges that there was not a warning sign nor any supermarket cleaner or clerk in sight, although there was someone who shouted “Hoy bata, ingat! May basa diyan!” 5. After the slipping incident, plaintiff rushed to her son’s aid as he was shrieking in pain, and implored the help of a store clerk to bring the child to her car so he can be brought to the hospital. 6. Thereafter, Ricky was brought to the Philippine Orthopoedic Hospital for due care, where his right wrist was operated on to restore the position of the fractured bone. He was then made to stay at the hospital for a night. 7. Plaintiff spent P22,840.00 for doctor’s fee, hospitalization, and medication, evidenced by receipts. Furthermore, she also spent approximately P5,000.00 for toys to distract Ricky from the pain he was suffering. 8. It took about six (6) weeks for Ricky to recover the use of his right hand, and prior to recovery, he suffered from pain and discomfort in moving.

The Case Plaintiff Jonna Bueno filed an action for damages against the defendant, Gloria Supermart, for the injuries and damages sustained by her son, the expenses from the hospitalization, and the emotional turmoil suffered by her. Following the principle on quasi-delicts found in Article 2176 of the New Civil Code of the Philippines, defendant Gloria Supermart, should be held liable for damages cause to plaintiff. Issues I. II.

Whether or not the defendant Gloria Supermart exercised due diligence in ensuring the safety of their shoppers. Whether or not the defendant can be held liable for the physical injuries sustained by Ricky when he slipped on the wet floor. If so, shall the plaintiff be entitled to damages. Arguments I.

“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 treser in the premises.”1 Undeniably, Gloria Supermart is negligent in maintaining the safety of their shoppers within their premises. Their establishment, bein a supermarket, which boasts a wide variety of items, can be considered as an attractive nuisance. “Would a prudent man, in the position of the person to whom negligence is attributed, foresee the harm to the person injured as a reasonable consequence of the cause actually pursued?”2 In the ordinary course of things one can foresee that a person who might by chance step on a puddle of liquid or walk on a slippery floor would most likely slip. In fact this is a common sight which may be prevented by the immediate clearing of the liquid, drying of the floor, or placing appropriate indicators of the wet floor. In the last instance, a person who nonetheless walks on such paths despite the indicators does so at his own risk. In this case the defendant neither cleared the liquid nor indicated its existence with appropriate signs. Despite the natural consequence of its existence on a person using ordinary case who might by chance step on it, and slip, still defendant failed to take the necessary precaution which might be expected from a reasonably prudent man in the position of said defendant. As such, defendant, acting through its employees, should be held liable for its negligence which caused injury to the plaintiff and to her son. 1 2

Hidalgo Enterprises, Inc. vs. Balandan, et.al. (91 Phil. 488) Phil. National Construction Corporation vs. CA (GR No. 159270)

II. Yes, the defendants can be held liable. This incident falls to the Quasi-Delict division of the New Civil Code. And can also be complemented by a good number of provisions and jurisprudence independent of the same. “The obligation imposed by Article 2176 is demandable not only for one’s own acts or omissions, but also for those of persons for whom one is responsible. x x x The owners and managers of an establishment or enterprise are likewise responsible for damages cause by their employees in the service of the branches in which the latter are employed or on the occasion of their functions.”3 The above-mentioned article strengthens the contention that the defendant is liable due to negligence. And for that they shall indemnify the plaintiff for the damages and injury incurred. “Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same.”4 “Whoever by act or omission cause damage to another, there being fault or negligence, is obliged to pay for the damage done. x x x”5 Article 2176 of the New Civil Code provides that whoever causes damage to another, either by act of omission and with either fault or negligence, is obliged to pay for the damage done. The obligation imposed by Article 2176 is demandable not only for one’s own acts or omissions, but also for those of persons for whom one is responsible”. 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. Defendant, as employer, is liable under Article 2180, supra, for the negligence of its employees. Not having raised nor proved that it observed all the diligence of a good father of a family to prevent the damage, its liability is fixed. “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 is referred to as actual or compensatory damages.”6 Among the damages for which defendant should be made liable is the reimbursement of the actual expenses for hospitalization incurred by the plaintiff from the defendants’ from the defendants’ negligence. Article 2199, supra, provides that compensation for pecuniary loss suffered is in order only when duly proved. Such is the case. Plaintiff, through her testimonyand by adequate receipts, has duly proved her pecuniary loss. This being the case, plaintiff is entitled to compensation for actual damages. In addition, plaintiff is entitled to the recovery of moral damages for the emotional pain the defendants’ negligence has brought her and her son. In this regard, plaintiff seeks payment of moral damages to alleviate their suffering and anguish in an amount commensurate to the damage caused. 3

Article 2180, Civil Code of the Philippines Article 20, Civil Code of the Philippines 5 Article 2176, Civil Code of the Philippines 6 Article 2199, Civil Code of the Philippines 4

Prayer Wherefore, it is respectfully prayed unto this Honorable Court that judgment in favor of plaintiff be rendered. And that defendant to indemnify the plaintiff of actual or compensatory damages amounting to P22,840.00. And to award the plaintiff P200,000.00 for moral damages. Furthermore, that the cost of this suit be put upon from the defendant. Other reliefs as may be just and equitable are likewise prayed for. Quezon City, July 25, 2011.

Atty. Rex Beltran Counsel for Plaintiff 717 Sui Generis St, Quezon City Roll No. 51234; 04/27/11 PTR No. 6789; 01/05/12; Manila IBP No. 7982; 03/20/12;Manila MCLE Compliance No. III-123; 06/14/12