REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL REGION

REGIONAL TRIAL COURT
QUEZON CITY, BRANCH________

VIC TRADER’S CORPORATION

Plantiff,

CIVIL CASE NO. ______

-versus-

MIGHTY GLUE CORPORATION

Defendant

X-----------------------------------------X

MEMORANDUM OF FACTS AND LAWS

Defendant’s Lawyer Plaintiff’s Lawyer

M&M Lawfirm Atty. Jacquevhee R. Aguinaldo

Brgy. Ablan, Batac City CAP Building, Laoag City

Tel No: 600-0439 Tel No: 770-6756

Fax No: 600-6677 Fax No: 770-9999

MEMORANDUM OF FACTS AND LAW

Overview

1. Vic traders’ Corporation engaged in the merchandising and trading business whose
principal office prior to August 17, 2015 was at No. 353 Aurura Boulevard, Quezon City.

2. Mighty Glue Corporation is a corporation engaged in the manufacture of industrial glues,

vulcanizing cement, rubber cement, leather dressings, leather varnishes and cutting dies,
most of which need highly inflammable and flammable solvents for their manufacture
into finished products, such as a “Tuluol”, “Pegasol” and “Barsol”, among others.
Specifically, the manufacture of leather dressings and leather varnishes repaired as an
element the chemical substance known as “nitrocellulose”. Before August 17, 2005, the
principal office of MGC was No. 355 Aurora Boulevard, Quezon City, adjoining that of
VTC.

3. On August 17, 2005 at about 11:30 am, a fire, preceded by explosions, broke out from the
Adhesives Department of MGC. The fire gutted not only the principal office of MGC but
likewise the adjoining building of VTC.

4. On January 1, 2006, VTC filed a complaint for damages against MGC with the RTC of
Quezon City alleging that the fire was “caused by the fault or negligence of defendant
 and/or its employees in not taking the necessary precautions to avoid damage to others
and in failing to comply with the requirements of the authorities relative to the use and
storage of highly inflammable goods and materials like nitrocellulose which is needed in
the manufacture of its products.”

Facts concerning the Plaintiff

5. The said fire was caused by the fault or negligence of defendant and/or its employees in
not taking the necessary precautions to avoid damage to others and in failing to comply
with the requirements of the authorities relative to use and storage of highly inflammable
goods of materials.

6. As a result of the said fire that was caused by the fault or negligence of the defendant
and/or its employees, the plaintiff suffered damages in the amount of atleast
P2,142,599.50, itemized as follows:

7. Manuel de los Santos, a former employee of MGC, who will testify as follows:

That before August 17, 2005 he recommended to, and caused the importation by
MGC, of four (4) drums of nitrocellulose which was stored in the MGC’s
adhesive Manufacturing Department and that he was the one who supervised the
use of the same. That he had been advising MGC that the drums of nitrocellulose
he stored in a separate building outside the main building of the company and that
after his termination sometime in June 2005, there were still two (2) drums of
unused nitrocellulose stored in the premises of MGC.

8. Reynaldo Reyes, also former employee of MGC, who will testify as follows:
 That on August 17, 2005 while working in the Adhesive Department of MGC, he
saw that something was smoking inside one of the drums stored in the premises.
That he hurriedly ran to the office of Mr. Cervantes, his boss, the one incharge of
the adhesive Department to tell him about the smoking drum. That Mr. Cervantes
and he immediately went to where the smoking drum was. Mr. Cervantes told him
and the employees who by then also rushed to the scene to tinker with the drum
because it contained nitrocellulose and that it might explode and for them to
remove anything located around the drum might catch fire. Shortly after that, the
drum exploded.

Points in Issue

9. It is the position of MGC that the cause of fire was of “undetermined origin” or
“accidental in origin of undetermined source”, probably due to an electrical short circuit.

Submissions

10. Gross negligence resulting to damage to properties

In PERLA COMPANIA DE SEGUROS,INC. and BIENVENIDO S. PASCUAL,, Res ipsa

loquitur is a Latin phrase which literally means the thing or the transaction speaks for itself. It
relates to the fact of an injury that sets out an inference to the cause thereof or establishes the
plaintiffs prima facie case. The doctrine rests on inference and not on presumption. The facts of
the occurrence warrant the supposition of negligence and they furnish circumstantial evidence of
negligence when direct evidence is lacking.
The doctrine is based on the theory that the defendant either knows the cause of the accident
or has the best opportunity of ascertaining it and the plaintiff, having no knowledge thereof, is
compelled to allege negligence in general terms. In such instance, the plaintiff relies on proof of
the happening of the accident alone to establish negligence.
The doctrine provides a means by which a plaintiff can pin liability on a defendant who,
if innocent, should be able to explain the care he exercised to prevent the incident complained of.
Thus, it is the defendants responsibility to show that there was no negligence on his part.

To sustain the allegation of negligence based on the doctrine of res ipsa loquitur, the
following requisites must concur:
1) the accident is of a kind which does not ordinarily occur unless someone is
negligent;
2) the cause of the injury was under the exclusive control of the person in charge and
3) the injury suffered must not have been due to any voluntary action or contribution on
the part of the person injured
The test to determine the existence of negligence in a particular case may be stated as
follows: did the defendant in committing the alleged negligent act, use reasonable care and caution
which an ordinarily prudent person in the same situation would have employed?If not, then he is
guilty of negligence.

11. “Undetermined origin” or “Accidental in origin” of undetermined source of fire

The preeminent reference for fire investigators is the National Fire Protection Association’s
Guide for Fire and Explosion Investigations, NFPA 921, which was developed in 1992.
NFPA 921 brought the scientific method into the fire investigation process, providing credible and
reliable evidentiary bases for determining the origin and cause of a fire. Included in that guidance
of fire cause determination was the categorization of the cause of a fire into one of four
classifications:
Accidental: the cause does not involve an intentional human act to ignite or spread the fire
into an area where the fire should not be.
 Incendiary: intentionally ignited under circumstances in which the person knows that the
fire should not be ignited
Natural: caused without any direct human intervention or action such as lightning,
earthquake and wind
Undetermined: where any opinion regarding the cause is less than probable, or where the
fire is still under investigation and cause might be determined later if new information or evidence
is discovered.
When one considers this protocol in the face of a perils based policy that covers the peril
of “Fire” some have opined that fire cause determination of “accidental” may affect recovery,
particularly as it relates to third parties and subrogation rights. This is an unfortunate consequence
of lack of consideration of detail and methodology as it relates to the definitions and interpretation
of the word “accidental” as contained in NFPA 921 and the insurance industry’s use and
interpretation of the word “accident”.
Firstly, the term “accidental”, refers simply to the “classification” of the fire cause and not
the “responsibility” for the fire. NFPA 921 states that “cause” is separate from “responsibility”:
“The nature of responsibility in a fire or explosion incident may be in the form of an act or
omission. It may be something that was done, accidentally or intentionally, that ultimately brought
about the fire or explosion, or it may be some failure to act or correct or prevent a condition that
caused the incident, fire/smoke spread, injuries, or damage. Responsibility may be attributed to a
fire or explosion event notwithstanding the classification of the fire cause: natural, accidental,
incendiary, or undetermined. Responsibility may be attributed to the accountable person or other
entity because of negligence, reckless conduct, product liability, arson, violation of codes or
standards, or other means.”
Further, responsibility for a fire may even be assigned when the cause is “undetermined”.
For example, if the origin of an apartment fire has been determined and the only viable potential
causes were either tenant careless smoking or careless candle use, then it must be classified as
“undetermined” (because one of two possible causes remains). The responsibility would be
assigned to the tenant despite the cause being “undetermined”. In such cases recovery by the
property insurer against the tenant insurance may be possible, since responsibility was determined,
but specific cause was not. We have, however, seen situations where the tenant insurer tries to use
NFPA 921’s “undetermined” classification as justification for denying the building insurer’s
claims, despite evidence that the tenant was “responsible” for the fire. That is an incorrect
manipulation of NFPA 921: “undetermined” relates to cause, not responsibility. Of course the
wording of different types of policies may also have an impact on recovery. (Paragraph 19.5.1 in
the NFPA 921, 2008 edition.)

12. In INTERNATIONAL CONTAINER TERMINAL SERVICES, INC., Petitioner, v.

CELESTE M. CHUA, Respondent.
[i]n our jurisprudence, fire may not be considered a natural disaster or calamity since
it almost always arises from some act of man or by human means. It cannot be an act
of God unless caused by lightning or a natural disaster or casualty not attributable to
human agency.

ORDER SOUGHT
The Respondent states that this appeal should properly be favored.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

Dated at Toronto this 18th day of November, 2010.

Jacquevhee R. Aguinaldo
Of Counsel for the Respondent Of Counsel for the Respondent