Republic of the Philippines

Regional Trial Court

10th Judicial Region
Branch 9
City of Malaybalay

Sps. Brian Nelson Flores Civil Case No. 3969-09

Et. al
Plaintiffs For:
-versus- Specific Performance
With Damages
Toyota Cagayan de Oro, Inc.
Et. al
X------------------------------------x

MEMORANDUM
(for the Plaintiffs)

COMES NOW, Plaintiffs, assisted by the undersigned counsel, and unto

this Honorable Court, most respectfully submits this Memorandum, as
follows:

TIMELINESS OF THE MEMORANDUM

1. On October 13, 2017, herein Plaintiffs received an Order dated
September 14, 2017 of this Honorable Court which directed the
parties to submit their respective memorandum within 30 days from
receipt thereof.

2. The plaintiffs have until the 13th of November, 2017 to submit their
memorandum which they are now submitting and well within the
reglementary period to file the same.

THE CASE
3. This case precipitated from complaint filed by herein Plaintiffs,
spouses Brian Nelson Flores and Yvette Doreen Flores against the
defendants for specific performance with damages relative to the non-
deployment of the airbags of the Toyota Fortuner they purchased
from the defendants.
 FACTUAL ANTECEDENTS
4. In order that this Honorable Court may be enlightened and guided in
the judicious disposition of the above-entitled case, cited hereunder
the material, relevant and pertinent facts of the case, to wit:

5. Plaintiffs, on April 15, 2008, purchased from Toyota Cagayan de

Oro, Inc., a brand new Toyota Fortuner. Plaintiffs chose to have the
said type of vehicle because of its safety features including the
Supplemental Restraint Safety or SRS airbags.

6. On the fateful night of December 13, 2009, at around 8:30 in the

evening, while plaintiff Brian was driving the subject vehicle and his
wife plaintiff Yvette beside him in the passengers seat, traversing the
road home at a speed of 70 to 75 km/h, the vehicle figured an
accident. Despite the manoeuvring made by plaintiff Brian, the
vehicle skidded and fell into a drainage thereby hitting a concrete
culvert causing a tremendous impact.

7. Despite the impact caused by the collision of the vehicle against the
concrete non-movable culvert, the airbags for the driver and the
passenger did not deploy. Plaintiffs were so puzzled by the non-
activation of the mechanism considering that one of the reasons why
they bought the vehicle is its safety features. Defendant Toyota CDO
even issued a Certification that, indeed, the airbags did not deploy
attached as Annex A herein. Plaintiffs were disappointed and
distraught with what happened.

8. Due to the collision and the corresponding non-deployment of the

airbags despite severe impact, plaintiff Yvette suffered injuries
particularly in her right arm. The radiologic opinion issued by Dr.
Gaboya of Bukidnon Provincial Medical Center, revealed that there
was a comminuted fracture in the upper right portion of plaintiff
Yvette. In laymans term, it means that the bone was splintered into
more than two fragments. Copy of the said Radiologic Opinion is
attached herewith as Annex B.

9. The severe injuries suffered by plaintiff Yvette had a lot of

consequences. One, she had to be hospitalized and had to spend Php
25,695.63 by way of hospitals. Two, she had to undergo further
medications and rehabilitation for the injuries did not completely heal
 when she was discharged from the hospital. The hospital bill is
attached in this memorandum as Annex C.

10. Considering the above-mentioned circumstances experienced by

the plaintiffs directly caused by the non-deployment of the airbags
due to its defect, they demanded with the defendants that the subject
vehicle be replaced or, in the alternative, its purchase price be
refunded.

11. Plaintiffs exerted utmost efforts, sent demand letters and attended
mediation conferences but all have been rendered nugatory by the
refusal of the defendants. In one of the mediation conferences, the
plaintiffs agreed that the vehicle be traded in. However, when they
visited Toyota Cagayan de Oro, there vehicle was appraised at a very
low trade in value well below the average resale price. With this, they
refused.

12. Plaintiff Brian filed with the Department of Trade and Industry a
complaint for the replacement or refund of the unit. The meetings
before the DTI went unsuccessful, thereby prompting the plaintiffs to
file the instant case for specific performance and for the payment of
damages for the injuries they suffered from the breach of warranty
against hidden defects.

ISSUES
13. Whether or not the December 13, 2008 accident caused damage to
the front portion of the subject Toyota Fortuner.

14. Whether or not the said accident caused severe injuries to plaintiff
Yvette.

15. Whether or not the plaintiffs are entitled to damages.

16. Whether or not the defendants committed a breach of warranty

against hidden defect of the airbags.

DISCUSSION
 I. THE ACCIDENT TRANSPIRED ON DECEMBER 13, 2018 WAS A
SEVERE ONE AND ENOUGH TO MET THE VELOCITY
THRESEHOLD LEVEL
17. Defendants alleged that the impact brought about by the
December 13, 2008 accident was not severe and it was not enough to
cause ample damage to the front portion of the vehicle which was the
alleged reason for the non-activation of the airbags.

18. This allegation of the defendants is negated by the facts. It is more

than apparent that the accident figured by the plaintiffs was more
than enough to cause damage to the subject vehicle. The pictures
clearly indicated that the front portion of the vehicle was severely
damaged since it collided with a concrete culvert. During the cross-
examination of defendants witness Charlemagne A. Osia, he testified
that the pictures of the vehicle marked as Annexes C, C-1, C-2
and C-3, he considered the collision as a frontal impact and caused
severe damage to the vehicle.
Atty. Lagamon : I am showing you the picture you dont think
this is a frontal or hard enough for the airbag not to deploy in fact even the
chasis moved. So is not picture not frontal to you, is that side, I think that
is frontal, what can you say?
xxxxxx
Can you consider this as the frontal impact?
Witness Osia : Taking into consideration this would be
considered frontal.

19. The testimony of their witness clearly shows that the impact
caused by the collision is a frontal one. As provided in page 81 of the
Owners Manual that the SRS airbags will deploy in severe (usually
frontal) collisions where the magnitude and duration of the forward
deceleration of the vehicle exceeds the assigned threshold level. In
this case, the frontal portion of the subject vehicle was severely
damaged. This is proved by the photos taken after the accident
occurred and by the Certification issued by the defendant that the
vehicle was severely damaged at the time it was turned over to them.
It is also worthy to note that the term frontal was qualified by the
word usually. Following basic statutory construction, airbags should
deploy not only in frontal collisions but also in non-frontal collisions
for as long as the threshold level is achieved.
20. Witness Osia in his testimony also admitted that he was not able
to see the vehicle in person to check as to its actual status but only
relied upon the technical report submitted by his subordinate. He
further admitted that his subordinate might commit errors and
inaccuracies in the report. Osia did not base his assessment on
personal judgment but on the report made by his subordinate which,
as he said, could be erroneous or inaccurate.

21. The same witness also made mention that the SRS will deploy
even though it is not involved in the accident. This means that there is
no need for the SRS to be hit during the accident. Therefore, the
defendants argument that the sensors are still intact does not hold
water. That even though the sensor was not hit, the airbags should
still deploy since the threshold level of the impact was met and there
is enough amount of sudden deceleration.
Court : So my point is, if that sensor has an impact or meets a collision
that sensor?
Witness : This sensor didnt need to be involved in the impact.
Court : Before the SRS will deploy?
Witness : Yes, Your Honor, this will send signal.

22. It is also noticeable that the term severe collision was not defined
in the Owners Manual provided by the defendant. To what
circumstances then can a collision be considered as severe and when
can it be not? The Manual miserably failed to explain this for reasons
only known to them. This should have been defined thereon as the
word severe is subjective and it could be different persons in different
points of view. The testimony of their witness Gener Vergara is
manifest:
Atty. Lagamon : xxxx. What you stated in the Judicial Affidavit the
conditions are severe collisions and there is certain word forward
deceleration. Can you find the definition in that Manual, Mr. Witness?
Definition of frontal deceleration as well as the definition of severe?
Mr. Veluz : The witness is browsing the manual.
Witness Vergara : None, Your Honor.

23. It is crystal clear that the term severe as a qualification for the term
collision was not defined in the Manual. Without such definition, the
term can be defined by the defendant the way it wanted to in order to
escape any liability brought about by their products. Since no
definition can be had, the photos are the best illustration of whether
 the collision was severe. The photos together with the Certification
issued that the vehicle was severely damaged, are the concrete
evidence to show severity.

II. THE INJURIES SUSTAINED BY PLAINTIFF YVETTE WAS

DIRECTLY CAUSED BY THE NON-ACTIVATION OF THE
AIRBAGS
24. As to the issue of severe injuries suffered by plaintiff Yvette, the
radiologic opinion says it all. Plaintiff Yvette suffered comminuted
fracture with displacement, proximal 3rd segment right humerus.
There is a causal relations between the injuries she sustained and the
non-deployment of the airbags. Had the airbags deployed, she would
have been spared of the injuries she sustained. This required plaintiff
to be hospitalized and incurred bills in the amount of Php 25,695.63.
The hospital bill is the best proof of the expenses incurred by the
plaintiffs. After undergoing treatment in the hospital, plaintiff Yvette
continued to suffer the pain her arm and had to undergo further
medication and rehabilitation. This is clear from her Judicial
Affidavit.

25. Gener Vergara, another witness for the defendants, admitted that
the SRS is necessary despite having seat belts to ensure optimal
protection to the passenger and in a way lessen the injuries that may
be sustained.

III. THE PLAINTIFFS ARE ENTITLED TO MORAL AND

EXEMPLARY DAMAGES AS WELL AS ATTORNEYS FEES
26. As to the entitlement of the plaintiffs to moral and exemplary
damages, and attorneys fees, the same should be granted. Due to the
accident they figured and the non-activation of the airbags which
caused them injury and trauma, the plaintiffs suffered sleepless nights,
serious anxiety, moral shock and wounded feelings. Considering that
they are still building a family of their own and what could have been
the result of a hidden defect in airbags is a great deal for the plaintiffs.
Plaintiffs were expecting and were relying on the guarantee of the
defendants that the vehicle the latter sold was free of any hidden
defect and was safe for driving and would further save the plaintiffs
from injury had its safety features properly worked. Also the refusal
of the defendants to replace the unit or refund its purchase price,
 considering that the vehicle was still months-old, caused unnecessary
consequences which could have been saved had the defendants
acceded to the legitimate claims of the plaintiffs. Considering all
these, it is clear that the plaintiffs are entitled to moral and exemplary
damages.

27. Attorneys fees should also be awarded to the plaintiffs since they
were forced to engage the services of a lawyer. Should the defendants
accede to the legitimate claim of the plaintiffs, it would not be
necessary for the spouses to engage the services of a lawyer and suffer
the arduous process of litigation.

IV. THE NON-DEPLOYMENT OF THE AIRBAGS WAS DUE TO ITS

HIDDEN DEFECT
28. As to the issue of the defective airbags, the discussion above
already manifest that there was indeed a hidden defect in the airbags
which rendered the said airbags unfit for the purpose for which it was
intended. Art. 1561 of the Civil Code of the Philippines provides that [t]he
vendor shall be responsible for warranty against the hidden defects which the
thing sold may have, should they render it unfit for the use for which it is
intended, or should they diminish its fitness for such use to such an extent that,
had the vendee been aware thereof, he would not have acquired it or would
have given a lower price for it; but said vendor shall not be answerable for
patent defects or those which may be visible, or for those which are not visible
if the vendee is an expert who, by reason of this trade or profession, should
have known them. (Italics supplied)

29. As stated in the Owners Manual, the SRS airbags would deploy in
cases of severe (usually frontal) collision. The discussion has already
pointed out that the accident caused a severe and frontal collision and
should have caused the deployment of the airbags. But due to its
hidden defect, the mechanism did not activate. The defendants argue
that the threshold level required was not reached in order that the
airbags will be deployed. This allegation of the defendants was
negated by the Owners Manual they gave the plaintiffs at the time of
the sale. The Manual provided that the threshold required for the
activation of the airbags would be at 25 km/h at the time of the
collision. As stated in the actual antecedents of this case, plaintiffs
were navigating road home using the subject vehicle at the speed of
70 to 75 km/h. The speed was way beyond the minimum threshold
 velocity level. This was never denied by the defendants but only
reiterated that the threshold was not reached. The subject vehicle hit a
concrete culvert which resulted into a severe impact. This would then
have, as a consequence, activated the airbags. But then again, due its
hidden defect, it did not.

30. Also, witness Osia testified that it is only in the year 2012 that it
became a standard operating procedure to show to their customers a
video detailing the safety features of the units.

31. As can be gleaned from the witness testimony, it is crystal clear

that they only showed a video presentation starting the year 2012.
The subject vehicle was a 2008 model and was purchased on the same
year. Following the said set of facts, it is only but logical to conclude
that the plaintiffs were not give any idea as to how the safety features
would for the video presentation was only available on 2012, 4 years
after the sale.

32. It is also worthy of consideration that several units of Toyota were

recalled due to its defect and it included the Fortuner model. It was
pointed out during the cross-examination of the defendants witness
Osia that there was a recall of Fortuner, Hilux and Innova units
because of its defects.

33. This only goes to show that several of the models of the vehicles
were defective since the defendant was forced to recall the same. It is
apparent that there was danger in the said units they were selling and
it included, among others, defective airbags. This happened in 2008,
the year model of the subject vehicle.

34. The same witness also testified that by reading alone the Manual,
a layman can fully understand how the SRS works. This is, however,
negated by the fact that the said witness made mention of several
technical words only an expert would be able to understand. By no
stretch of imagination can this be understood by a layman. Some of
these technical terms include fixed barrier, offset and override
collision, deceleration sensors, deceleration rate, and underride
collision.
 35. With all these at hand, there is a breach of warranty against
hidden defects committed by the defendant.

PRAYER
WHEREFORE, it is respectfully prayed that this Honorable Court that
judgment be rendered ordering the defendants to reimburse the purchase price of
the vehicle or in the alternative replace the vehicle. The plaintiffs also pray that the
defendants pay the following by way of damages:
a) Actual damages in the amount of P 25,698.63
b) Moral damages in the amount of P200,000.00
c) Exemplary damages in the amount of P200,000.00
d) Attorneys fees in the amount of P50,000.00

Plaintiff likewise prays for costs and for such other and further relief as this
Honorable Court may deem just and equitable in the premises.

Malaybalay City, Bukidnon, November 8, 2017.

LAGAMON AND ASSOCIATES

Counsel for the Plaintiffs
2/F Jamstar Bldg., Cor. J.P. Carillo-San Isidro Sts.
Poblacion, Malaybalay City, Bukidnon
(088) 813 3349 lagamonlaw@gmail.com

by:

DENCE CRIS L. RONDON

Roll of Attorneys No. 67495
IBP Lifetime Member No. 017137/18 May 2017/Bukidnon
 PTR No. 2514722/27 June 2017/Bukidnon
Exempted from compliance with MCLE for the year 2017
Tax Identification Number 335-571-850-000
(+63) 917 703 8190 dencecrislrondon@gmail.com