REPUBLIC OF THE PHILIPPINES

FOURTH JUDICIAL REGION

REGIONAL TRIAL COURT
BRANCH XVII
TAGAYTAY CITY

JENNIFER A. TOLEDO,
Plaintiff,

-versus- CIVIL CASE NO. 14-028

HARDIN NG POSTEMA RESORT

CORP.,
FELICIANA J. CESA ET AL.,
Defendants.
x-------------------------------------------x

ANSWER
AD CAUTELAM

COMES NOW, defendants Hardin ng Postema Corporation, Feliciana J. Cesa and

Angel C. Cesa, through the undersigned counsel, to this Honorable Office, respectfully

state that:

Prefatory Statement

Owners of resorts are not deemed to be the insurer of the safety of

patrons. And the death of a patron within his premises does not cast upon

him the burden of excusing himself from any presumption of negligence.

(Bertalot vs. Kinnare. 72 Ill. App. 52, 22 A. L. R. 635; Flora vs. Bimini

Water Co., 161 Cal. 495, 119 Pac. 661)

FACTS OF THE CASE

 On 25 April 2012, Gavino B. Toledo Jr., together with his friends and officemates

decided to go swimming at Hardin ng Postema Resort.

Before entering the premises, they were informed by the cashier to read the rules

and regulations of the Resort (placed in front of the resort) including the waiver of

liability of the resort to any damage or injury of their patrons.

Their representative was also required to sign the waiver included in the ticket

given to them.

Gavino Toledo Jr. and his companion started acting rowdy and violently while

they were drinking that prompted the guard of the resort to remind them to act properly

so as not to disturb other guests.

At around 1:30 a.m., Gavino Toledo Jr. was seen underwater and was brought to

Manas Medical Clinic where he was pronounced dead on arrival.

AFFIRMATIVE DEFENSES

I. The complaint has prescribed

and/or is barred by laches and that no
timely claim was filed.
------------------------------------------
 The instant complaint was filed more than two years when the accident happened.

In Regalado v. Go, G.R. No. 167988, February 6, 2007, 514 SCRA 616. the

Court held that:

“Laches is defined as the "failure or neglect for an unreasonable and

unexplained length of time, to do that which, by exercising due diligence, could or should
have been done earlier, it is negligence or omission to assert a right within a reasonable
length of time, warranting a presumption that the party entitled to assert it either has
abandoned it or declined to assert it.”

The essence of laches or "stale demands" is the failure or neglect for an

unreasonable and unexplained length of time to do that which, by exercising due

diligence, could or should have been done earlier, thus giving rise to a presumption that

the party entitled to assert it either has abandoned or declined to assert it.

If the plaintiff believes that she is entitled to any right arising out of the drowning

of her husband and that the plaintiff is really liable for damages, she should have filed it

immediately.

The timing of the filing of the instant complaint will show that this is a mere after

thought and that she has already abandoned and declined to assert her right.

II. Deceased GAvino B. Toledo and

his companion had validly acceded to the
waiver written on their ticket, cottage
contract and in front of the resort.
------------------------------------------

It cannot be denied that the guests of the resort were duly appraised of the rules

and regulations of the resort (including the waiver of liability) before entering the

premises. Also, that they may opt not to enter the premises if they are not amenable to it.
 By entering the premises, they are bound by the waiver and voluntarily acceded to

the non liability clause stated in the entrance and the ticket.

Written in front of the resort and included in the ticket is the waiver of liability

that the guests are waiving any claim against the resort for any injury, death or damages

that may occur inside the resort.

Thus, the defendants are insulated from claim or action or suit that arose from the

death of Gavino B. Toledo Jr.

III. There was no claim and/or

demand made by the plaintiff.
------------------------------------------

The plaintiff have not filed any complain and/or demand for the longest time and

defendants were shocked why the latter filed the instant complaint after more than two

years since the accident happened.

Had the plaintiff believed that she is entitled to damages as stated in the

Complaint, she should have demanded it immediately.

It is very unusual for a wife not to file any claim or case immediately if she

honestly believes that the plaintiff’s negligence is the cause of the death of her beloved

husband.

IV. The defendant corporation was

not guilty of negligence and has exercised
due diligence in the performance of its
duty.
------------------------------------------

There is on display in a conspicuous place within the area certain rules and

regulations governing the use of the pools.

Defendant corporation employs six lifeguards who are all trained as they had

taken a course for that purpose and were issued certificates of proficiency.

These lifeguards work on schedule prepared by their supervisor and arranged in

such a way as to have two guards at a time on duty to look after the safety of the bathers.

There are security guards who are available always in case of emergency.

The presence of a nurse or doctor is not required considering that a hospital is

very near the resort and injured people may be brought there within five minutes or less.

It is very clear from the foregoing facts that the death of Gavino Toledo Jr. can be

attributed to the negligence of defendant and/or its employees so as to entitle plaintiffs to

recover damages.

PRAYER
WHEREFORE, it is most respectfully prayed for of the Defendant that:

1. The instant case be dismissed immediately.

2. The plaintiff be held liable for damages and attorney’s fees resulting from the
filing of the instant malicious and baseless complaint; and

3. The plaintiff to pay the cost of the suit.

Other reliefs just and equitable under the premises are likewise prayed for.

Tanza, Cavite for Tagaytay City, 29 August 2014.

ATTY. JOVEN S. JOYA

 076 Capt. Jose St., Julugan,
Tanza, Cavite
IBP No. 633217, 1/15/14 - Cavite
PTR No. 3087904, 1/15/1 – Cavite
Roll No. 48396
MCLE Compliance No. IV-0021545
Mobile No. 09369995088
COPY FURNISHED:

ATTY. EMILLIE GEMANIL-ESPINA

Plaza Libertad St.,
Silang, Cavite
VERIFICATION

We, ANGEL C. CESA and FELICIANA J. CESA, Filipinos, of legal age, and
with address at Postema, Sahud-Ulan, Tanza, Cavite after having been sworn to in
accordance with law, hereby depose and state that:

1. We are the defendants in this case and the duly authorized representative
of Hardin ng Postema Resort Corporation.

2. We have caused the preparation of this Answer with Compulsory

Counterclaims, the contents of which are true and correct based on our personal
knowledge of the facts and the records at hand.

3. We have not commenced any other action involving the same issues raised
in the counterclaims in the Supreme Court, the Court of Appeals or different divisions
thereof, or any other tribunal or agency. If we should thereafter learn that a similar action
or proceeding has been filed or is pending before the Supreme Court, the Court of
Appeals or different divisions thereof, or any other tribunal or agency, we undertake to
promptly inform this Honorable Court within five (5) days from my knowledge thereof.

We hereby affix my signature this September 2, 2014 at the City of Trece

Martires City.

ANGEL C. CESA FELICIANA J. CESA

SUBSCRIBED AND SWORN TO before me, a notary public in and for Trece
Martires City this ____ day of September 2014. The affiants, whom I identified through
the following competent evidence of identity: _____________________________, valid
from __________________
to __________________ issued by _____________________________, personally
signed the foregoing instrument before me and avowed under penalty of law to the whole
truth of the contents of said instrument.

Notary Public

Doc. No. ........;

Page No. .......;
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Series of 2014.