PLAINTIFFS TRIAL MEMORANDUM Plaintiff, by counsel most respectfully submits this memorandum and alleges: STATEMENT OF THE CASE

This is an action for damages in the amount of P500,000 filed by plaintiff Jonna Bueno against respondent Gloria Supermart, Inc. Plaintiffs son Ricky, suffered injuries when he slipped because of the wet floor in the supermarket. She claims that the gross negligence of the management and employees of respondent is the proximate cause of the injury. Respondent for its defense claims that it exercised proper diligence in maintaining the safety of its customers and that the accident is beyond its control. In addition, Gloria Supermart, Inc. claims that plaintiff and her son contributed to the cause of the accident. Following the principle in Article 2176 of New Civil Code, Gloria Supermart, Inc. should be held liable for the damages caused to plaintiff. STATEMENT OF FACTS In order that this Honorable Court may be enlightened and guided in the judicious disposition of this case, the following are the material, relevant and pertinent facts: 1. On May 11, 2010, Jonna Bueno (Bueno) together with her son, Ricky, went to respondent Gloria Supermart, Inc. (Gloria) to buy goods that they need at home. 2. While shopping, Ricky saw a small ball rolled along the aisle. He ran after the ball but slipped because of the wet section of the aisle. 3. Based on Buenos testimony, there was a puddle of liquid on the floor because of a leaking bottle in a nearby shelf. 4. She said that there was no sign that the floor was wet not was there any clerk to warn them about it. She, however, admitted that she heard someone who shouted and cautioned her son of the wet floor. 5. On the contrary, Rene Castro (Castro), the Supervisor of the supermarket was at the next aisle when the incident happened. He testified that from the position of Ricky, after he slipped, it can be inferred that he bumped into the shelf with shyrup bottles and knocked down some of them. 6. Thereafter, Ricky was rushed to the Philippine Orthopedic Hospital where he was operated on his right wrist to restore the position of a fractured bone. It took him six (6) weeks to recover.

7. Bueno claims that she spent P22, 840 for medical expenses and P5,000 for toys to distract Ricky from the pain he suffered. She also claims that she mentally suffered because of worrying about her son. 8. Hence, this complaint for damages. ISSUES 1. 2. 3. 4. Whether or not Gloria exercised proper diligence in ensuring the safety of its customers. Whether or not the proximate cause of the accident is the gross negligence of Glorias management and employees. Whether or not Gloria can be held liable for the physical injuries suffered by Ricky when he slipped due to the wet floor. Whether or not Bueno is entitled to actual and moral damages resulting from the accident. ARGUMENTS 1. Gloria Supermart, Inc.s management and employees did not exercise the proper diligence in ensuring the safety of its cusotmers.

Gloria contends that the injuries suffered by Ricky was caused by an accident which is beyond its control. The injury could have been lessened if Bueno and her son exercised proper care. In Jarco Marketing v. Court of Appeals, G.R. No. 129792, December 21, 1999, the Supreme Court ruled that an accident is an unforeseen event which no fault or negligence attaches to the defendant. On the other hand, negligence is defined as omission to do something which a prudent and reasonable man would not do. In addition, in Philippine National Construction Corporation v. Court of Appeals, G.R. No. 159270, August 22, 2005, the Court provides that the test to determine whether a person is doing a negligent act is: 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? Here, Gloria cannot claim that the cause of the injury was an accident or an unforeseen event. Gloria knows that there are many people going in and out of their store. Its business caters to the needs of the family. Hence, they can reasonably expect parents to bring their children. Since they are expecting many customers including children Gloria should have deployed one personnel for each aisle to oversee and ensure the safety of the customers. However, at the time of the accident, there is no grocery clerk in the aisle. If there is a grocery clerk, the incident could be avoided. There should be an employee who should immediately clean wet floors to prevent accidents. But there was none.

Further in the place of the incident, there was no sign to caution the customers about the wet floor. Although Mrs. Bueno admitted that someone shouted and warned her, the liability of Gloria is not negated. [Transcript of Stenographic Notes (TSN), June 7, 2011] Shouting at someone is not sufficient means of informing a person of an impending danger. Therefore, Gloria is negligent because it did not provide for the necessary personnel to assist its customers. In addition, the Supreme Court ruled that the doctrine of res ipsa loquitor can be applied when the following requisites concur: (a) the accident was of such character as to warrant inference that it would not have happened except for defendants negligence; (b) and (c) the accident must not be due to voluntary act of the plaintiff. (Child Learning Center, Inc. v. Tagorio, G.R. No. 150920, November 25, 2005) Here, the doctrine of res ipsa loquitor can be applied. The accident could not happen if Gloria provided for sufficient precautionary measures to avoid the incident. Mr. Castro, the Supervisor, admitted that accident happen about once a year in their premises (TSN, June 14, 2011). Bearing this in mind, Gloria still failed to provide safety measures to prevent or lessen the accidents. They have management and control over their personnel who could have exercised proper diligence in preventing the accident. Clearly, the accident was not voluntary but due to the negligence of the management and its employees. Therefore, applying the doctrine of res ipsa loquitor Gloria failed to exercise proper diligence. 2. The failure of Gloria to provide the necessary precaution to avoid the accident is the proximate cause of the injury. the accident must be because of instrumentality under the control of defendant;

In Ramos v. C.O.L. Realty Corporation, G.R. No. 184905, August 28, 2009, proximate cause is that cause, which, in natural and continuous sequence, unbroken by an efficient intervening cause, produces injury, and without which the result would not have occurred. Here, Gloria claims that the cause of the injury was accident and Bueno and her son contributed to the damage. However, Gloria failed to substantiate its claim. The act of Bueno in letting her child go after the ball is not sufficient intervening cause which could have negated Glorias liability.

Therefore, the direct and immediate cause of the injury can be imputed against Gloria and not Bueno. 3. Gloria should be held liable for the injury caused to Ricky because one who caused damage to another is obliged to pay for the damage caused.

In Article 2176 the New Civil Code (NCC), it is provided that: Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. x x x Further Article 2180 of the NCC provides that: [o]wners and managers of establishment or enterprise are likewise liable for damages caused by their employees x x x. Here, the cause of the injury was the gross negligence of the management and employees of Gloria. Absent any evidence showing that Gloria observe due diligence to prevent damage, it cannot be excused from liability. In addition, Art. 2214 provides that contributory negligence tempers the award for damages. Here, no negligence can be imputed both to Bueno and her son. The act of Bueno before and after the accident shows that she did not cause the injury. She could not have foreseen the wet floor. The opinion of Castro that Ricky bumped into the shelf cannot be used to prove that Ricky is negligent. Under Rule 130, Sec. 48 of the Rules of Court, opinion of a witness is generally not admissible. Also, Castro did not see the accident first hand. His testimony was merely a speculation. Thus, no contributory negligence is present. 4. Mrs. Bueno is entitled to actual and moral damages.

Mrs. Bueno presented evidence of the expenses she incurred in the medication of her son. She also proved that she experience moral damages. Hence, Gloria should pay her the amount prayed for. All told, Gloria can be held liable for actual and moral damages for the neglect of its employees. PRAYER WHEREFORE, it is prayed unto this Honorable Court that judgment in favor of plaintiff be rendered. Gloria should pay her the amount of P500,000 as damages. Other just and equitable reliefs are likewise prayed for. Sgd

Counsel for Plaintiff IBP No. PTR No. Roll No. MCLE Compliance Address Copy furnished: Counsel for Defendant Address