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Legal Forms - Sample Form of Trial Memorandum

Republic of the Philippines REGIONAL TRIAL COURT National Capital Region Branch ___, Quezon City JONNA BUENO Plaintiff, For Damages - versus GLORIA SUPERMART, INC. Defendant. x---------------------x MEMORANDUM FOR PLAINTIFF Plaintiff, by counsel, respectfully states that: STATEMENT OF THE CASE Plaintiff Jonna Bueno (hereinafter Jonna) filed the present action for damages against Defendant Gloria Supermart, Inc. (hereinafter Gloria Supermart). Jonna attributes the injuries suffered by her minor son to Gloria Supermarts gross negligence in failing to make its premises safe for customers, thereby making it liable under Art. 2176 and Art. 2180 of the Civil Code. Defendant maintain that whatever injuries and expenses that were incurred by the Bueno family can be attributed to Jonnas failure to supervise her child. Civil Case No. 27-112011

STATEMENT OF THE FACTS 1. On May 11, 2010, Jonna and her minor child, 5-year old Ricky, went to Gloria Supermart at around 10 a.m. in order to shop for groceries. 2. While negotiating the aisles in the supermarket, Rickys attention was captured by a small red ball that was rolling on the floor. Being but a child of tender years, possessed of the immature disposition of individuals of that age, it was no surprise that Ricky chased after the ball down the aisle and away from Jonna. 3. It was at this point that Ricky suddenly slipped and fell because he had stepped on a wet section of the aisle. Liquid syrup had seeped out from a bottle located on a nearby shelf and had formed a puddle on the floor. 4. Jonna immediately rushed to her sons side. Ricky was crying in pain and pointing to his right wrist. 5. Jonna called for help as there were no nearby store clerks. Rene Cstro (hereinafter Rene), the supermarket supervisor eventually came over from another aisle in order to help out.

6. There were no signs and devices that would warn shoppers that an area of the floor was wet. There were no nearby cleaners or janitors wiping up the liquid. In fact, the only nearby Gloria Supermart personnel was Rene in the next aisle and even he seemed unaware that a hazard existed on the other side of the shelves. 7. With the aid of Rene, Jonna managed to bring her child to the Philippine Orthopedic Hospital where Ricky was attended to by Dr. John Lim. Ricky was subjected to an x-ray and it was discovered that surgery was necessary in order to restore the position of a fractured bone in his right wrist. 8. Said surgery in fact took place and Ricky was thereafter required to stay overnight at the hospital for purposes of pain management and care. He was discharged the following day. 9. Ricky recovered the full use of his hand only after a period of 6 weeks. In that span of time, he moved with discomfort and difficulty, unable to use his hands. 10. Since the date of Rickys injury and even during his recuperation period, Jonna suffered the mental anguish, fright and serious anxiety of a mother who was confronted with the injury of a beloved child. 11. In addition to the physical suffering suffered by Ricky and the mental andemotional strain on Jonna, they were further aggrieved because they had to spend P22,840.00 in doctors fees, hospitalization expenses, and medicine, as evidenced by receipts, marked as ANNEX ____. 12. On the other hand, Gloria Supermart, through Rene, claims that it exercised proper diligence in making the premises safe and that ultimately Jonna was the one who failed to supervise Ricky. It denied liability for all damages.

ISSUES Given the foregoing facts and circumstances, the following issues are presented for discussion: 1. Whether or not Gloria Supermart may be held liable for the commission of a quasi delict under Art. 2176 and Art, 2180 of the Civil Code. 2. Whether or not Gloria Supermart may be held liable for damages. ARGUMENTS I. Gloria Supermart is liable for the commission of a quasi delict that was the proximate cause of Rickys injuries. A. The proximate cause of the injuries that Ricky suffered was the negligence ofGloria Supermarts employees. 1. Art. 2176 provides that whoever by act or omission causes damage to another,there being fault or negligence, is obliged to pay for damage done. In the case of Child Learning Center, Inc. v. Tagorio (G.R. No. 150920, Nov. 25, 2005), the Supreme Court stated that in order to establish a quasi-delict case under this provision, the plaintiff must prove by a preponderance of evidence: (1) the damages suffered by the plaintiff; (2) the fault or negligence of the defendant or some other person for whose acts he must respond; and (3) the connection of cause and effect between the fault or negligence and damages incurred. (supra) 2. All three conditions obtain in the present case.

3. It is undisputed that Ricky broke his wrist when he slipped and fell on a puddle of liquid syrup that was on the floor of Gloria Supermarts premises. It was the presence of this syrup that was the proximate cause of Rickys injury. 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. C.O.L. Realty Corporation, G.R. No. 184905, Aug. 28, 2009). It is submitted that Ricky would not have fallen and broke his wrist if he had not slipped on the syrup. 4. The question now is, is his act of slipping on the syrup an accident or is thesyrups presence on the floor an act of negligence that may be attributed to Gloria Supermarts employees? If the proximate cause was an accident, clearly no liability can attach to Gloria Supremart. On the other hand, if the proximate cause is the latters negligence, it may properly held liable under the provisions of the Civil Code. 5. An accident pertains to an unforeseen event in which no fault or negligenceattaches to the defendant. On the other hand, 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 do. (Jarco Marketing Corp. v. Court of Appeals, G.R. No. 129792, Dec. 21, 1999) 6. Applying the law to the present case, it is clear that Rickys injury was not caused by accident. As earlier mentioned, Ricky broke his wrist because he slipped and fell due to liquid syrup that was seeping from a bottle located on the supermarket shelves. Clearly, the liquid should not have been on the floor as common sense would indicate that it posed a threat to even the most careful of individuals walking past. Anybody could have slipped and fallen on the syrup. 7. The mere presence of the syrup on the floor already negates Gloria Supermarts claim that it exercised proper diligence in making its premises safe. Based on its past experience as admitted by Rene, similar accidents have previously occurred. Thus, it could have easily foreseen that such an accident could happen again. Failure to take the proper precautions in guarding against such a mishap is an act of negligence on the part of Gloria Supermarts employees. 8. Specifically, Rene, as store supervisor, could have been more vigilant inpatrolling the aisles for spills or the presence of similar hazards. He failed the test for determining whether a person is negligent that was laid out by the Supreme Court in the case of Philippine National Construction v. CA (G.R. No. 159270, Aug. 22, 2005). The test in that case requires a person to act as a prudent man in a similar position and fails to take the proper precautions against foreseeable harm. He has already had 5 years of experience in handling the incidents of the supermarket and yet he did nothing. 9. Moreover, signs and warning devices which would inform shoppers that a hazard was present were noticeably absent. This oversight evidences even the want of ordinary care on the part of Rene and the other supermarket employees. 10. Rene and the other employees negligence in patrolling the aisles and placing prope r warning signs/devices is further supported by the fact that, as earlier mentioned: 1) similar accidents often happen, and 2) they knew that children often accompany their parents to the supermarket. Having advance notice of these facts, they cannot now claim that Rickys injury was an unforeseeable accident. B. Gloria Supermart may be held liable for the negligent acts or omissions of itsemployees under Art. 2180 of the Civil Code.

11. Art. 2180 provides that the obligation imposed by Art. 2176 is demandable notonly for ones own acts or omissions, but also for those of persons for whom one is responsible. Said article further provides 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. 12. Applying the foregoing to the present case, it is clear that Rene and other employees on duty that day were at that time in the service of Gloria Supermart, performing their regular functions and duties. 13. In order to escape liability for its employees negligent acts, Gloria Supermartmust show that it observed the diligence of a a good father of the family to prevent the damage. 14. Unfortunately, Gloria Supermart has failed to show that it exercised such degree of diligence in supervising Rene and the other employees. The testimonies on record do not show that it was store policy to take extra precautions against spills and other mishaps which occur in the ordinary course of a supermarket business. The testimonies on record also indicate an absence of institutional concern for the safety and well being of children that they knew often accompanied their parents in the store. In fact, Rene testified that children were the sole responsibility of their parents. While this may be true to a certain extent, considering that Art. 209 of the Civil Code provides that authority over minor children are with the parents, Gloria Supermart could have, by exercising ordinary care, prevented or at least minimized the possibility of mishaps occurring. The prevention and removal of hazards like the syrup on the floor is a duty that falls squarely within its area of responsibility. Moreover, children cannot be held to the same exacting standards of diligence that are attributed to an adult. Children of tender years like Ricky, are obviously at greater risk from hazards. Despite Gloria Supermarts knowledge and awareness of childrens presence on its premises, it did not exercise the diligence of a good father of the family in making sure that it took extra care to supervise and instruct its employees in minimizing the risk. 15. All told, it is evident that all the conditions of a quasi delict obtain in the presentcase: Ricky suffered an injury which in the ordinary course of events would not have happened had it not been for the negligence of Gloria Supermarts employees in preventing the occurrence of spillages and other ordinary store incidents and subsequently, in not promptly cleaning up the spilled liquid syrup and in not placing signs and other warning devices. Gloria Supermart itself was liable for the acts of its employees because it failed to exercise the diligence of a good father of the family in making sure that it was company policy to take precautions against foreseeable accidents, including those that would involve children. Assuming there was such a policy it was negligent in supervising its employees to ensure that they adhered to such standards and policies. II. Gloria Supermart is liable for the payment of damages. 1. Art. 20 of the Civil Code provides that every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same. Moreover, Art. 2176 also obliges the party responsible for the quasi delict to pay for the damage done. Here, the negligence of Gloria Supermart has been clearly established. Hence, it cannot escape liability for the payment of damages. A. Gloria Supermart is liable for the payment of actual damages. 2. Except as provided by law or by stipulation, one is entitled to an adequatecompensability for such pecuniary loss suffered by him as he has duly proved. (Art.2199, Civil Code)

3. Jonna incurred P22,840 in doctors fees, hospitalization expenses and medicine, which are properly documented by receipts (ANNEX A). These expenses would not have been incurred had the accident not happened as a result of Gloria Supermarts negligence in making sure that its premises were safe and secure. B. Gloria Supermart is liable for the payment of moral damages. 4. Moral damages include physical suffering, mental anguish, fright, seriousanxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. (Art. 2217, Civil Code) The article further provides that though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendants wrongful act or omission. (supra) 5. The facts bear out the claim that Jonna suffered mental anguish, fright and serious anxiety when she saw her son injured and in pain. Her emotional and mental state is directly connected with the fact that her son slipped, fell and broke his wrist due to the negligence of Gloria Supermart and its employees. 6. A mother is naturally concerned over the health and well being of her child. Hence, one can only imagine the suffering that she had to go through when she saw her child slip and fall, undergo surgery and continue to suffer pain and discomfort for 6 weeks after he was discharged from the hospital. 7. Ricky himself had to endure a significant amount of physical suffering as a resultof his broken wrist. Moral damages can also be recovered for such injuries suffered as a consequence of quasi delict because the law (Art. 2219, Civil Code) treats it as an analogous circumstance to those instances in Art. 2217 for which moral damages may be properly claimed. 8. Note that in addition to the pain he suffered on the day of the injury, such painlasted even up to 6 weeks after the surgery, during which time, he had limited range of movement in his hands and was also forced to deal with a significant amount of discomfort. C. Even assuming there was also negligence on the part of Jonna, such was only contributory and will not negate the award of damages. 9. The proximate cause of Rickys injury and the Bueno familys subsequent suffe ring is still Gloria Supermarts negligence. 10. Hence, Gloria Supermart should still be primarily liable for the payment of damages. 11. Assuming Jonna should have taken greater care in looking after Ricky, this stilldoes not make her negligence the proximate cause because an accident would still not necessarily have occurred without the efficient intervening cause of the liquid on the floor. 12. Contributory negligence, if there is any, will only serve to reduce the damages that may be recovered by Jonna. PRAYER WHEREFORE, premises considered, it is respectfully prayed that judgment be rendered in favor of plaintiff and against defendant by:

1) FINDING Gloria Supermart liable for the commission of negligent acts under Art. 2176 & 2180 when it failed to maintain safe premises for its customers; causing injury to Ricky. 2) ORDERING Gloria Supermart to pay both actual damages of P22,840, and moral damages in an amount this Honorable Court finds just and reasonable under the circumstances. Other just and equitable remedies under the circumstances are likewise prayed for. Quezon City, November 27, 2011. (Sgd.) ATTY. REX BELTRAN Counsel for Plaintiff Address: IBP No: PTR No: Roll No: MCLE No: Copy furnished: ATTY EMIL SUNGA Counsel for Defendant EXPLANATION In view of time and manpower restrictions, the above Memorandum was served viaregistered mail as personal service could not be availed of without causing undue hardship to plaintiff. (Sgd.) ATTY. REX BELTRAN Counsel for Palintiff ~end~ HOW TO WRITE A TRIAL MEMORANDUM: Note: Pre-work is indispensable to a substantial and convincing trial memorandum. It will do well for you, therefore, to go over the pleadings, the transcript of testimonies of the witnesses, and the documentary exhibits. Working on these materials, identify the legal dispute involved and based on it, draw up the principal issue in the case. From there, proceed to make an outline of the relevant facts that the opposing parties claim and pin point the issues that you need to address. (Abad, 2009) 1. HEADING 2. SUMMARY OF THE NATURE OF THE ACTION Determine what actions were filed by the plaintiff against the defendant and other proceedings which the parties have undergone prior to the filing of the present action. (Ibid.) 3. A SUMMARY OF THE FACTS OF THE CASE This refers to the transaction or event that brought about the legal dispute and the lawsuit as seen from the opposing points of view of the parties. (Ibid.) Read the materials and make an outline of the relevant facts of the case, arranging them the order of time and carefully narrating each if the parties version without veering towards any of the parties side. (Ibid.)

Determine the legal dispute by ascertaining what right of a party the other has violated. Afterwards, study the laws and rules involved in such dispute. (Abad, 2009) 4. STATEMENT OF RELEVANT ISSUES THAT THE PARTIES PRESENT FOR RESOLUTION List down all the issues involved and identify the controlling issue or issues that, when resolved, will end the legal dispute.(Ibid.) 5. AN ORDERLY PRESENTATIONS OF THE ARGUMENTS THAT SUPPORT YOUR CLIENTS POSITION Rough out your argument on a paper, using the balance sheet format (Ibid.). You need to be guided by your proposition or where you stand on the issue. Draft out arguments against you as well as those arguments in your favor. Lastly, write your closing statement appealing to the good senses of the reader. Write up your memorandum introducing the issue/issues, arguments and closing statement. Edit your work to rid out of needless words. Below is the structure of a memorandum, opinion, brief, petition, comment, position paper, decision, or similar legal writing: (Ibid.) Statement of the Case Statement of the Facts Plaintiffs version of the facts Defendants version of the facts The issue or issues Body of Arguments Relief (Source: UST Golden Notes 2011)