ANGELICA MENESES. tegen Defendant Gloria Supermart, Inc., by counsel, respectfully submits. this memorandum as follows: Jonna Bueno (Jonna) filed an action for damages of $00,000 PHP: against Gloria Supermart, Inc. (GSD before the Regional Trial Court of Quezon City for the physical injuries of her son, Ricky, suffered at the defendant's supermarket, for the medical expenses and the emotional anguish that it brought to him and his mother. 1. Plaintiff Jonna Bueno testified that at approximately 10AM on May 11, 2020, she and her five-year-old son, Ricky. were shopping for groceries at Gloria Supermart. 2. In her account of the sequence of events, Jonna stated that 2 ‘small bal roled along the aisle, and Ricky, as a child would, chased the moving object As per her statement, afler her son traveled some distance from where she stood, Jonna witnessed him slipping on the alsle’s wet floor and crashing down with a heavy bang. Ricky then shrieked from pain in his right wrist, which he used to stop his fll. 3. She testified that she saw a puddle on the floar where Ricky was situated. She claimed that the liquid forming the puddle was seeping out from a leaking bottle in a neorby shelf.4. Jonna then brought Ricky to the Pt lippine Orthopedic Hospital Here, Ricky received diagnosis and treatment for a wrist fracture. He stayed overnight at the medical facility and recovered in six weeks. 55. During this span of time, Jonna and her husband spent 22,840 PHP in medical expenses, including doctor's fee, hospitalization, and medicine. She also incurred expenses of approximately 5,000 PHP for toys that were used to distract Ricky from the pain he suffered. Her son experienced great discomfort and depression, while she herself claims to have suffered from mental stress. 6. At the time of the incident, Defendant Witness Rene Castro, supermarket supervisor for Gloria Supermart, was also at the store. He was placing new stocks of noodles on their respective shelves. When he heard the commotion ane aisle away, he dropped his task and rushed to the scene, 7. He, too, saw a puddle on the floor where the child lay. Contrary to Jonne’s testimony, however, he asserts that the puddle was from the tems that had fallen from a nearay shelf. These items included one glass bottle that brake and spilled its contents onto the flor. 8. Castro then carried Ricky to his mother’s car and accompanied mother and child to the Philippine Orthopedic Hospital.‘The Issues to be resolved are the following. 1. Whether or nat the management and emplayees of GSI displayed ‘gross negligence in ensuring the safety of thelr customers within, their premises 2. Whether or not GSI is liable for damages resulted from Ricky's physical injuries 3. Whether or not the plaintif is entitied to recover damages Discussions GSI was not grossly negligent in keeping their store safe for customers. To determine the existence of negligence on the part of the defendant, it is essential to first establish how the law defines negligence. The Supreme Court, in Jarco Marketing Corporation v. Court of Appeals, 321 SCRA 375, reiterated the classic statement of what negligence is. 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, ‘oF doing of something which a prudent and reasonable man, would not do. 200Jonna contends that supermarket management and staff must be hheld responsibie for negligence, as they should have been alert of the nuisances they meintained. They argue that they are at Fault Yor Feiling to clear the area of items that draw children away thor their parents, like the loose ball that rolled down the aisle, and hszards that could {Jeopartize the safety of the customers, such as the puddle an the floor ‘tom carelessly spilled liquids. [follows that the indicator of negligence in the case at har is the defendant's maintenance of nuisances. Article 694 of the Civil Code defines a nuisance as an act, ‘omission, establishment, business, condition of propery, ar anything ‘else that, for one, injures or endangers the health or safety of athers. In Hidalgo Enterprises, Inc. v. Balandan, er al, 91 Phi 488, attractive nuisances were defined as dangerous instrumentaities or appliances of ‘a character likely to attract children in play. Howver, nuisances are considered as such if maintained with the absence of the exercise of ordinary care. In the present case, neither the ball nor the puddle could be considered as attractive nuisances. GSI observed ordinary care in ‘maintaining ts store. The ball could not have been among the merchandise in one of the store's grocery alsles, where they would display, naturally, grocery items, not toys. It could not have rolled dawn the aisle from ineffective stacking or any activity the employees do in their everyday course of duty. ‘The store could not have warned customers of the puddle on the floor, in the possible event that it was not there prior to the child's ccident. Castro presents this possibilty in his testimony:(: What else did you see? ‘A: Some tems from a nearby shelf had fallen down the floor. 0: What were these items? ‘A: There were 2 couple of bottles of syrup, mostly in plastic bottles, except one glass bottle that had broken and spilled ‘pat ofits contents on the floor. (0: To what do you account this? A | could infer from the position of Ricky that he bumped intg the shelf contalning syrup bottles and knocked off some of them, By the mere possibility of this circumstance, this eliminates one requisite for the application of res ipsa loquitur — the accident being caused by an agency or instrumentality within the exclusive management or control of the person charged with the negligence complained of. This possibilty shows that the circumstances of the Incident were not under GSI's sole and absolute power to implement or prevent. Other possible causes to a similar accident exist beyond the Control of the defendant. Examples include the accidental breakage of syrup bottles at the precise time of the incident, tripping on a random customer, getting pushed aside by human andior cart traffic, and calision with other children, It can be argued that Castra was merely speculating, because he ‘was at another aisle when the incident happened and could not have seen exactly how the puddle on the floor came to be. Nonetheless, the same can be said about the mother’s statement — she did not see her Child fall until the exact moment he slammed onto the floor, from a distance where it is questionable that she can ascertain with ease that the spot he slipped on was wet prior to the incident. Her testimony validates this. 0: Do you remember anything unusual that happened while you and Ricky were picking up groceries at the shelves? ‘Yes, 9 smal bal rolled alg the iste and Ricky ran after 0: Was he able to catch the ball? A: No. Although Ricky had gone some distance down the aisle from where | stood, | saw him slip with a heayy bang on ‘a wet section of the aisle,As ruled in Child Learning Center, Inc. v. Tagorio, 476 SCRA 236, in every tort case under Article 2176 of the Civil Code, the plaintiff has to prove by a preponderance of evidence, among others, the fault or negligence of the defendant, and the connection of cause and effect between the fauit or negligence and the damages incurred. Here, Jonna {alled to establish sufficient evidence of such negligence. From this, it can be gathered that the defendant did not commit gross negligence in maintaining the safety of their premises, or at the very least, such aross negligence is not sufficiently proven. a SI is not liable for damages. ‘The provisions of Article 2160 of the Civil Code include 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. However, this all refles on liability under Article 2176, as provided: ‘Art. 2180. The obligation imposed by Article 2176 is demandable not only for one’s own acts or omissions, but also for those of persons for wom one is responsible. 20 90K 2008 ‘Amticle 2176, which defines lability by quas-delict, states: ‘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, I there (Sno preexisting contractual relation between the parties, is called a quasi-delict and 's governed by the provisions of ‘this Chapter. ‘Once more, for liability to be established. there must be proven tthe existence of fault or negligence on the part of the defendant. In the case at bar, the defendant was not maintaining attractive nuisances, and the puddle, supposedly the Injury’s proximate cause, was not proven to be a result of their negligence or imprudence alone. Because of this, they cannot be held liable for damages the plaintiff sustained. m. Jonna is not entitled to recover damages. Jonna is demanding compensation for actual and moral damages, In total amounting to 500,000 PHP.Under Article 2199 of the CWvil Code. one Is entitled to an adequate compensation, only for such pecuniary loss suffered. Such ‘compensation Is referred to as actual or compensatory damages. The plaintiff has duly proven the expenses she incurred from paying for her son's medical bills. Should GSI be held liable for damages, Jonna can recaver the amaunt spent for actual damages. On the other hand, she cannot recover moral damages amounting ‘to the sum she seeks to claim. While Article 2217 of the Civil Code lists mental anguish, fright, and serious anxiety as examples of moral ‘damage, In the case in question, there is no justification of the award demanded being proportional to the injuries suffered. The Supreme Court stated the purpose of moral damages in Lorzano v. Tabayag. GR. No. 189647, as follows: Moral damages are not intended to enrich the complainant at the expense of the defendant. Rather. these are awarded only to enable the injured party to obtain “means, diversions or amusements” that will serve to alleviate the moral suffering that resulted by reason of the defendant's culoable action. The purpose of such damages is essentially indemnity or reparation, ‘not punishment or correction. In other words, the award thereot is aimed at a restoration within the limits of the possible, of the spiritual status quo ante, therefore, it must always reasonably approximate the extent of injury and be proportional to the wrong committed. Jonna presented evidence of expenses from having to distract her son from the pain he suffered. What, then, of the mental stress Jonna suffered from seeing her only son hurt? Primary responsibility over a non-emancipated chid belongs to his parents. Jonna herself ‘acknowledges this responsibility when she was questioned. Q: But when you took him there, you of course are aware that the supermarket did not’ have a leave-your-child Yes, Sir : Consequently, you were aware that the responsibility forlooking aitter “Ricky's needs and safety while in” the ‘Supermarket is primarily in your hands as his mother? A: Yes, Sir, but supermarkets always expect children to ‘come with their parents and so it has to make sure that the place is safe for chilaren. Q: But do you agree that. as his mother, he is safer when he Stays by your side na public place Ike & supermarket? Yes, Sir. Still, you let him stip away from your control, when he ran after that ball? ‘A Yes, Sir, but the supermarket should keep thelr eyes open {or things like loose balls running down their aisles, drawing children away from their parents, and letting them slip-on carelessly spilled liquids. Under Article 20 of the Family Code, this authority and responsibilty may not be renounced o- transferred except in cases authorized by low Even within the supermarket’s premises, Janna ‘cannot hold the supermarket’s management or its staff principally ‘accountable for the welfare of her son, because such accountability is inherently hers as his parent and designated guardian. By allowing her child of tender age to run down the aisle without her supervision, allowing him to reach a considerable distance from ‘where she stood, there Is a clear display of contributory negligence on Jonna’s part: With contributory negligence established. the lingering legal ‘question may now be answered. Under Article 2179 of the Civil Code, when the plaintiff's negligence was only contributory, the plaintiff may recover damages, but the courts shall mitigate the damages to be ‘awarded. Article 2214 further supports this. Even in quasidelict cases, ‘the contributory negligence of the plaintiff shall reduce the damages ‘that she may recover. The Supreme Court held in National Power Corporation v. Heirs of Noble Casionan, 572 SCRA 71, that the underlying precept on contributory negligence Is that a plaintiff who is partly responsible for his own injury should not be entitled to recover ‘damages in full, But must bear the consequences of his own negligence. Prayer Wherefore, premises considered, defendant Gloria Supermarts, Inc respectfully prays the Court to: 1, Declare the defendant not fable for injuries sustained by plaints son; 2. Thereby dismiss this case for lack of merit: and 3. Deny the plaintif’s demand for the defendant to pay her'500,000