PART 2 LEGAL OPINION: Below is an exchange between you and a hypothetical client.

. Based on the information given, write (1) a brief legal opinion/advice specifying the relevant facts of the case, the legal problems raised by your hypothetical client, your assessment of the issues involved, and the possible courses of action that may be taken under the law; and (2) one legal document that may be used in connection with your recommended course of action. Judy Ann Sanchez has come to consult you about the possibility of her bringing a lawsuit against McBee as a result of the injuries she sustained after she fell from the food chains staircase. Judy Ann brought along her daughter, Mara Clarita, to the interview. Mara Clarita witnessed what happened. The following is your interview with her. Interview with Mara Clarita Sanchez, accompanied by client, Judy Ann Sanchez January 10, 2011 Q: A: Q: A: Q: A: Mara, where were you on October 18, 2010? I was at McBee-Metropark Branch with my mother, Judy Ann. Did you see your mother fall from the staircase? Yes. What exactly happened? We have just ordered some spaghetti and sundaes. Since the ground floor was already filled with people, we decided to eat at the second floor. But when we reached the staircase, we found out that there was a birthday party upstairs and it was closed to the public. So where did you eat? I approached a crew and asked if he could find a table for us. What did he do? He said that the birthday party was about to end so we can go up and eat there. Did you go upstairs? Yes. My mother went up first. What happened next? On her way up, she met the McBee mascot (which was a pink bee) who was hurrying down with another crew member. Since the mascot was so big, he hit my mother by the shoulder. What happened then? My mother lost her balance. She missed four steps and hit her head, shoulders, back and buttocks on each step. What did you when you saw your mother? I was shocked and temporarily rendered motionless. When I realized what happened, I immediately rushed to my mothers side. I told the crew to call an ambulance. What did your mother do? She was crying. She complained of extreme back pain and could not stand up. What happened next? The store manager approached us. She said that it would be faster if we use her car on the way to the hospital. Two crew members carried my mother and we brought her to the nearest hospital for treatment. Essay Part 2: Legal Opinion Page 1 of 7

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When you asked Judy Ann what she has done so far with the case, she told you that she asked the management of McBee-Metropark Branch to pay her P100,000 in damages for what she suffered. Although the management paid for the hospital bills, she suffered pain and was greatly inconvenienced by the weekly physical therapy she was undergoing since the accident. When you asked about the managements response to her demand for damages, she gave you the following letter:
December 15, 2010 Judy Ann Sanchez 911 Bluewhale Street Palanan, Makati City Dear Ms. Sanchez: I am writing in reference to your letter dated November 18, 2010 addressed to Ms. Anna Batungbacal, Manager of the McBee-Metropark Branch. She endorsed your letter to me as Operations Manager in charge of the McBee-Metropark Branch. We, at McBee-Metropark Branch are very sorry for any inconvenience your family may have experienced in connection with your unfortunate accident last October 18, 2010. As Ms. Batungbacal and I told you during our hospital visit on October 19, 2010, we truly understand how you and your family feel about the incident. We assure you that we will continue to shoulder all expenses related to your weekly physical therapy until such time that you are fully restored to your previous health. Our conversation helped us understand each others situation. I hope that with this, any past misunderstanding has been cleared up, and we can now put this unfortunate incident behind us. Please accept my sincerest apologies in behalf of the McBee-Metropark Branch team. We truly hope to see you and your family in our store again. Thank you. Very truly yours, McBee Foods Corporation By: Ted Pallone Operations Manager Metro Manila (South) Area

Laws and jurisprudence that may apply 1. Article 2176 of the Civil Code Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.

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Article 2179 of the Civil Code When the plaintiff's own negligence was the immediate and proximate cause of his injury, he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the defendant's lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded. Article 2180 of the Civil Code The obligation imposed by Article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. xxx xxx xxx The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions. Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. xxx xxx xxx The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage. Article 1170 of the Civil Code Those who in the performance of their obligations are guilty of fraud, negligence, or delay, and those who in any manner contravene the tenor thereof, are liable for damages. Article 2202 of the Civil Code In crimes and quasi-delicts, the defendant shall be liable for all damages which are the natural and probable consequences of the act or omission complained of. It is not necessary that such damages have been foreseen or could have reasonably been foreseen by the defendant. Article 2203 of the Civil Code The party suffering loss or injury must exercise the diligence of a good father of a family to minimize the damages resulting from the act or omission in question. Article 2214 of the Civil Code In quasi-delicts, the contributory negligence of the plaintiff shall reduce the damages that he may recover. Article 2215 of the Civil Code In contracts, quasi-contracts, and quasi-delicts, the court may equitably mitigate the damages under circumstances other than the case referred to in the preceding article, as in the following instances: (1) That the plaintiff himself has contravened the terms of the contract; (2) That the plaintiff has derived some benefit as a result of the contract;

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(3) In cases where exemplary damages are to be awarded, that the defendant acted upon the advice of counsel; (4) That the loss would have resulted in any event; (5) That since the filing of the action, the defendant has done his best to lessen the plaintiff's loss or injury. 9. Article 2216 of the Civil Code No proof of pecuniary loss is necessary in order that moral, nominal, temperate, liquidated or exemplary damages, may be adjudicated. The assessment of such damages, except liquidated ones, is left to the discretion of the court, according to the circumstances of each case. Article 2217 of the Civil Code Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendant's wrongful act for omission. Article 2219 of the Civil Code Moral damages may be recovered in the following and analogous cases: xxx xxx xxx (2) Quasi-delicts causing physical injuries; xxx xxx xxx Article 2221 of the Civil Code Nominal damages are adjudicated in order that a right of the plaintiff, which has been violated or invaded by the defendant, may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him. Article 2229 of the Civil Code Exemplary or corrective damages are imposed, by way of example or correction for the public good, in addition to the moral, temperate, liquidated or compensatory damages. Article 2231 of the Civil Code In quasi-delicts, exemplary damages may be granted if the defendant acted with gross negligence. Jarco Marketing Corporation v. Court of Appeals, G.R. No. 129792, December 21, 1999, 321 SCRA 375 An accident pertains to an unforeseen event in which no fault or negligence attaches to the defendant. It 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." On the other hand, negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do. Negligence is "the failure to Essay Part 2: Legal Opinion Page 4 of 7

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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 and negligence are intrinsically contradictory; one cannot exist with the other. 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. 16. Child Learning Center, Inc. v. Tagorio, G.R. No. 150920, November 25, 2005, 476 SCRA 236 The doctrine of res ipsa loquitor applies where (1) the accident was of such character as to warrant an inference that it would not have happened except for the defendant's negligence; (2) the accident must have been caused by an agency or instrumentality within the exclusive management or control of the person charged with the negligence complained of; and (3) the accident must not have been due to any voluntary action or contribution on the part of the person injured. Philippine National Construction Corporation v. Court of Appeals, G.R. No. 159270, August 22, 2005, 467 SCRA 569 The test for determining whether a person is negligent in doing an act whereby injury or damage results to the person or property of another is this: could a prudent man, in the position of the person to whom negligence is attributed, foresee harm to the person injured as a reasonable consequence of the course actually pursued? If so, the law imposes a duty on the actor to refrain from that course or to take precautions to guard against its mischievous results, and the failure to do so constitutes negligence. Reasonable foresight of harm, followed by the ignoring of the admonition born of this provision, is always necessary before negligence can be held to exist. Saludaga v. Far Eastern University, G.R. No. 179337, April 30, 2008, 553 SCRA 741 In order for force majeure to be considered, respondents must show that no negligence or misconduct was committed that may have occasioned the loss. An act of God cannot be invoked to protect a person who has failed to take steps to forestall the possible adverse consequences of such a loss. One's negligence may have concurred with an act of God in producing damage and injury to another; nonetheless, showing that the immediate or proximate cause of the damage or injury was a fortuitous event would not exempt one from liability. When the effect is found to be partly the result of a person's participation - whether by active intervention, neglect or failure to act - the whole occurrence is humanized and removed from the rules applicable to acts of God. Philippine National Construction Corporation v. Court of Appeals, G.R. No. 159270, August 22, 2005, 467 SCRA 569 Contributory negligence is conduct on the part of the injured party, contributing as a legal cause to the harm he has suffered, which falls below the standard to which he is required to conform for his own protection.

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Mangaliag v. Catubig-Pastoral, G.R. No. 143951, October 25, 2005, 474 SCRA 153 It must be remembered that moral damages, though incapable of pecuniary estimation, are designed to compensate and alleviate in some way the physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury unjustly caused a person. Moral damages are awarded to enable the injured party to obtain means, diversions or amusements that will serve to alleviate the moral suffering he/she has undergone, by reason of the defendant's culpable action. Its award is aimed at restoration, as much as possible, of the spiritual status quo ante; thus, it must be proportionate to the suffering inflicted. Since each case must be governed by its own peculiar circumstances, there is no hard and fast rule in determining the proper amount. B.F. Metal (Corporation) v. Lomotan, G.R. No. 170813, April 16, 2008, 551 SCRA 618 In the case of moral damages, recovery is more an exception rather than the rule. Moral damages are not punitive in nature but are designed to compensate and alleviate the physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar harm unjustly caused to a person. In order that an award of moral damages can be aptly justified, the claimant must be able to satisfactorily prove that he has suffered such damages and that the injury causing it has sprung from any of the cases listed in Articles 2219 and 2220 of the Civil Code. Then, too, the damages must be shown to be the proximate result of a wrongful act or omission. The claimant must establish the factual basis of the damages and its causal tie with the acts of the defendant. In fine, an award of moral damages would require, firstly, evidence of besmirched reputation or physical, mental or psychological suffering sustained by the claimant; secondly, a culpable act or omission factually established; thirdly, proof that the wrongful act or omission of the defendant is the proximate cause of the damages sustained by the claimant; and fourthly, that the case is predicated on any of the instances expressed or envisioned by Article 2219 and Article 2220 of the Civil Code. Philippine Commercial International Bank v. Alejandro, G.R. No. 175587, September 21, 2007, 533 SCRA 738 [N]ominal damages may be awarded to a plaintiff whose right has been violated or invaded by the defendant, for the purpose of vindicating or recognizing that right, and not for indemnifying the plaintiff for any loss suffered by him. Its award is thus not for the purpose of indemnification for a loss but for the recognition and vindication of a right. Indeed, nominal damages are damages in name only and not in fact. They are recoverable where some injury has been done but the pecuniary value of the damage is not shown by evidence and are thus subject to the discretion of the court according to the circumstances of the case.

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B.F. Metal (Corporation) v. Lomotan, G.R. No. 170813, April 16, 2008, 551 SCRA 618 Exemplary or corrective damages are imposed, by way of example or correction for the public good, in addition to moral, temperate, liquidated or compensatory damages. Exemplary damages cannot be recovered as a matter of right; the court will decide whether or not they should be adjudicated. In quasi-delicts, exemplary damages may be granted if the defendant acted with gross negligence. While the amount of the exemplary damages need not be proved, the plaintiff must show that he is entitled to moral, temperate or compensatory damages before the court may consider the question of whether or not exemplary damages should be awarded.

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