Wednesday, October 10, 2012

top memorandum of the 2011 BAR EXAM

MEMORANDUM FOR THE PLAINTIFF

Plaintiff, through the undersigned counsel, unto this Honorable Court respectfully submits this Memorandum to support her cause of action and alleges:
STATEMENT OF THE CASE
This is a case of quasi-delict with damages for the injuries sustained by a minor due to an accident at the defendant’s supermarket on May 11, 2010.

STATEMENT OF THE FACTS
On direct examination, the plaintiff testified on the following, to wit:
1. Plaintiff is Jonna Bueno, 35 years old, married, and a resident of 89 Little Baguio St., San Juan City, Metro Manila;
2. She is an accountant by profession;
3. On May 11, 2010 at 10:00 AM, plaintiff with her son Ricky, a 5 year old boy, went to Gloria Supermart, Inc., to buy some groceries;
4. While picking some groceries, a small ball rolled along the aisle that caught the attention of Ricky who ran after the ball to catch it;
5. Upon trying to catch the ball, plaintiff saw Ricky slipped with a heavy bang on the wet section of the aisle;
6. Plaintiff immediately came to his rescue to help him as he shrieked from pain in his wrist which he used to stop his fall;
7. Plaintiff testified that the cause of Ricky’s fall was due to the puddle of liquid on the floor that seeped out from a leaking bottle in a nearby shelf;
8. She testified further that there was no supermarket cleaner around during that time and no warning sign had been placed in the area;
9. Furthermore, she heard someone shout, Hoy, bata ingat! May basa diyan!;
10. Plaintiff asked a store clerk to help her carry Ricky for her to bring him to the Philippine Orthopedic Hospital;
11. That her son Ricky was operated in his right wrist to restore the position of a fractured bone as shown by the X-ray picture;
12. Ricky was able to recover only after six (6) weeks from the accident;
13. That plaintiff incurred P22, 840.00 for doctor’s fee, hospitalization and medicine as shown by her receipts;
14. She also spent P5, 000.00 for the toys she bought for Ricky to distract him from the pain he suffered;
Moreover, on direct examination and on behalf of Gloria Supermart, Inc., their witness testified on the following:
15. Defendant’s witness is Rene Castro, 55 years old and a resident of 12 V.G. Cruz, Sampaloc, Manila;
16. He is a supervisor of Gloria Supermart, Inc., and works in the store for five (5) years;
17. He testified that on May 10, 2010, he heard a commotion and found out that Ricky was lying on the floor in pain;
18. He saw that couples of bottles of syrup in plastic containers, except one glass bottle was broken and spilled part of its contents on the floor;
19. He speculated that Ricky must have been the one who bumped into the shelf that caused the glass container to break as accordingly inferred from Ricky’s position;
Upon cross-examination, defendant’s witness stated the following:
20. He did not actually see the accident when it happened;
21. There were already accidents resulting in injury in the supermart before as hundreds of people are shopping in the store;
22. There were even cases of shoplifting in the store;
23. During the accident of Ricky, the Supermart management did not bother to take pictures of the puddle on the floor and the bottles of syrup that was the cause of Ricky’s accident.
STATEMENT OF THE ISSUE/S
1. IS GLORIA SUPERMART, INC., NEGLIGENT IN MAINTAINING ITS STORE PREMISES TO MAKE IT SAFE FOR ITS CUSTOMERS?
2. IS THE SUPERMART LIABLE TO PAY DAMAGES FOR THE INJURY SUSTAINED BY RICKY’S ACCIDENT?
ARGUMENTS AND DISCUSSION
1. Gloria Supermart, Inc., is negligent by not observing due diligence to keep their store safe from possible accidents of its customers.
1.1 Based on the facts presented, it is very clear that defendant Gloria Supermart is negligent and did not observe due diligence in maintaining its store safe and free from possible accidents as shown by the absence of maintenance personnel who must see to it, from time to time, that there are wet areas in the floor which might cause customers from slipping off.
1.2 The supermart was also negligent in not placing a warning sign to warn customers in areas where items are in liquid form as there are tendencies that these items may seep or break.
1.3 The failure of the store personnel to check these things regularly constitutes negligence on their part.
“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. (Jarco marketing Corporation v Court of Appeals, G.R. No. 129792, Dec. 21, 1999, 321 SCRA 375)”
1.4 Applying the said jurisprudence, the supermart has but failed to do its responsibility through its personnel to act reasonably as a prudent man would do to maintain its premises safe from accident.
1.5 Aggravating the circumstances was the rolling of the ball that got the attention of Ricky to ran after it. The ball rolling constitutes an attractive nuisance that will certainly catch the attention of a child. That ball must have come from the store which is expected to be seeling as it caters the general needs of its customers. The store management then should have also checked its goods and have them secured especially if they are prone to accidents. In the case of a ball, it is not only hazardous to children but also to adults especially the aged persons who might stepped on it, although not hazardous if properly served.
“One who maintains on his premises dangerous instrumentalities or appliances of a character likely to attract children in play, and who fails to exercise ordinary care to prevent children from playing therewith or resorting
thereto, is liable to a child of tender age/years who is injured thereby, even if the child is technically a trespasser in the premises. (Hidalgo Enterprises, Inc. vs. Balandan, et al., L-3422, June 13, 1952, 91 Phil. 488).”
1.6 The testimony of the plaintiff that she heard someone shouting, “Hoy, bata, ingat! May basa diyan!” should not have striken out instead appreciated as it could not be considered hearsay because it was directly heard by the plaintiff herself and not taken from other person.
1.7 That declaration must be appreciated as part of resgestal as it was made spontaneously that is while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence.
1.8 In the case at bar, that statement only proves that indeed there was already a wet area in the store where the boy slipped of which regates the defendant’s witness that it was Ricky who must have bumped off the bottles causing one of them to break.
1.9 It could therefore be dedused from that circumstances that the supermart is negligent because someone had already observed the wet floor to be accident prone.
2. The supermart is liable to pay damages for the injury sustained by Ricky’s accident.
2.1 The accident should not have happened without the fault and negligence of the supermart and its employees as presented above. The law provides that:
“Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnity the latter for the same (Art. 20, New Civil Code)”
2.2 This is supported by Article 2176 which states that:
“Whoever by act or omission causes damge 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 provision of this chapter.”
2.3 In the instant case, the Supermart is liable to pay damages plus the expenses incurred during the medication of Ricky because there should have been no such damage, injury and expenses should the supermart been not negligent in observing due diligence to check their premises, as inunciated by Art. 2180, which states that:
“The obligation imposed by Art. 2176 is demandable not only for one’s own acts or omissions but also for those of persons for whom one is responsiblexxx. The owner’s 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 in the occasion of their functions.
2.4 Applying this provision of law to the instant case, it is then the liability of the owner of Gloria Supermart and his store employees who are neglect of their duties to observe due diligence. The owner or employer is vicariously liable with his employees to pay damages to the plaintiff for the injuries she sustained.
WHEREFORE, it is respectfully prayed that this Honorable Court will decide in favor of the plaintiff and against defendant, Gloria Supermart, Inc., the following reliefs:
1. Payment of actual or compensatory damages in the amount of P27, 840.00;
2. Moral damages for the physical suffering of the victim and mental anguish, fright and serious anxiety experienced by the plaintiff;
3. Exemplary or corrective damages;
4. Cost of litigation
Other measures of reliefs that are just and equitable under the premises are likewise prayed for.

(Sgd.) ATTY. REX BELTRAN
Counsel for the Plaintiff
Manila City
I.B.P. No. _______dated_____
Roll No. ________dated _____
PTR No. _______dated ______
MCLE No. ______dated _____

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