19 Jarco Marketing v CA (1999) [Negligence]

Jarco Marketing v CA

G.R. No. 129792

December 21, 1999

Facts: Petitioner Jarco Marketing Corporation is the owner of Syvel's Department Store, Makati City.
Petitioners Leonardo Kong, Jose Tiope and Elisa Panelo are the store's branch manager, operations
manager, and supervisor, respectively.  Respondents are the spouses and parents of Zhieneth Aguilar

Criselda and Zhieneth were at the 2 nd floor of Syvel’s Department Store. Criselda was signing her
credit card slip at the payment and verification counter when she felt a sudden gust of wind and heard a
loud thud. She looked behind her. She then beheld her daughter Zhieneth on the floor, her young body
pinned by the bulk of the store's gift-wrapping counter/structure. Zhieneth was crying and screaming for
help. Although shocked, Criselda was quick to ask the assistance of the people around in lifting the
counter and retrieving Zhieneth from the floor. She was rushed to the Hospital and was operated on. But
the next day Zhieneth lost her speech and later after 14 days after the incident she died at the age of six.

Criselda demanded reimbursement for hospitalization, medical bills and funeral expenses but
Jarco Marketing refused to pay to which the aggrieved family members filed a complaint against Jarco.
Jarco however denied any liability for the injuries and death as they claimed that Criselda was negligent in
exercising care and diligence over her daughter allowing her to freely roam the store filled with glassware
and appliances. Also Zhieneth was liable for contributory negligence as she climbed the counter triggering
the eventual collapse said counter was made of sturdy wood and strong support and never fell for the
past 15 years of its construction.

Jarco claimed that it exercised due diligence of a good father of a family in the selection,
supervision and control of its employees and raised due care and diligence in the performance of their
duties as a defense. The trial court dismissed the complaint ruling that the proximate cause of the fall of
the counter on Zhieneth was her act of clinging to it and also Criselda’s negligence contributed to the
incident. As the said counter was at the end or corner of the 2 nd floor as a precautionary measure hence,
it could not be considered an attractive nuisance. The counter was higher than Zhieneth it has existed for
15 year and is safe and well balanced. Zhieneth had no business in climbing and clinging on it.

Respondents appealed to the Court of appeals and raising the defense that an child below 9 years old is
incapable of contributory negligence and even if she did it was impossible of her to propped herself on the
counter as she had a small frame and that a testimony of Gonzales a former store employee who
accompanied her to the hospital heard that when she was asked by the doctor what she did she said
nothing and did not come near said counter and it just fell on her to which said testimony received as res
gestae. And that negligence could not be imputed to Criselda as she was paying at said time and that the
cause of death was Jarco Marketing negligence for not having the counter permanently nailed. The Court
of appeals ruled in favor of Criselda. Hence the current case

Issue(s): WON the death of Zhieneth is accidental or attributable to negligence

And if it was negligence WON such is attributable to Jarco Marketing or Criselda and Zhieneth
Held: For the first issue it is negligence; it is important to determine the difference between an accident
and negligence. An Accident is a fortuitous circumstance, event or happening; an event happening
without any human agency, or if happening wholly or partly through human agency, an event which under
the circumstances is unusual or unexpected by the person to whom it happens, while Negligence is the
failure to observe, for the protection of the interest of another person, that degree of care, precaution and
vigilance which the circumstances justly demand, whereby such other person suffers injury.

Accident occurs when the person concerned is exercising ordinary care, which is not caused by
fault of any person and which could not have been prevented by any means suggested by common
prudence.  The test in determining the existence of negligence is enunciated in the landmark case
of Picart v. Smith, Did the defendant in doing the alleged negligent act use that reasonable care and
caution which an ordinarily prudent person would have used in the same situation? If not, then he is guilty
of negligence. The tragedy that befell Zhieneth was no accident and could only be attributable to
negligence.

The Second issue it is deemed the negligence of Jarco Marketing, as the testimony of Gonzales proved
their negligence.

As the court deemed said testimony is valid it is unthinkable for Zhieneth, a child of such tender
age and in extreme pain, to have lied to a doctor whom she trusted with her life. We therefore accord
credence to Gonzales' testimony on the matter; Zhieneth performed no act that facilitated her tragic
death. Sadly, petitioners did, through their negligence or omission to secure or make stable the counter's
base. Following said testimony Guevarra another former employee corroborated that Jarco marketing
store supervisor was informed of the danger imposed of the unstable counter. Yet, neither initiated any
concrete action to remedy the situation nor ensure the safety of the store's employees and patrons as a
reasonable and ordinary prudent man would have done. Thus, as confronted by the situation Jarco
Marketing and its supervisors miserably failed to discharge the due diligence required of a good father of
a family.

Negligence cannot be contributed to Zhieneth as the court applied the conclusive presumption
that favors children below nine (9) years old in that they are incapable of contributory negligence. Even if
we attribute contributory negligence to ZHIENETH and assume that she climbed over the counter, no
injury should have occurred if we accept petitioners' theory that the counter was stable and sturdy. For if
that was the truth, a frail six-year old could not have caused the counter to collapse.

Criselda should be also absolved of negligence as initially Zhieneth held her hand but
momentarily released it to pay. Such letting go of her hand was reasonable and when she was pinned
down she was only a foot away from her mother and the said counter was only 4 meters away from
Criselda, Zhieneth did not loiter and was near her mother. It is deemed that the one liable for the
negligence is Jarco Marketing and the store supervisors for failing to properly set up precautions to the
said counter.