JARCO MARKETING V CA (1999)
G.R. No. 129792 December 21, 1999
JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE TIOPE and ELISA PANELO, petitioners, vs. HONORABLE COURT OF APPEALS, CONRADO C. AGUILAR and CRISELDA R. AGUILAR, respondents.
FACTS:
Jarco Marketing Corporation is the owner of Syvel's Department Store, Makati City. Petitioners Leonardo Kong, Jose Tiope and Elisa Panelo are the store's branch manager, operations manager, and supervisor, respectively. Private respondents are spouses and the parents of Zhieneth Aguilar (ZHIENETH).
In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at the 2nd floor of Syvel's Department Store, Makati City. CRISELDA was signing her credit card slip at the payment and verification counter when she felt a sudden gust of wind and heard a loud thud. She looked behind her. She then beheld her daughter ZHIENETH on the floor, her young body pinned by the bulk of the store's gift-wrapping counter/structure. ZHIENETH was crying and screaming for help. Although shocked, CRISELDA was quick to ask the assistance of the people around in lifting the counter and retrieving ZHIENETH from the floor.
ZHIENETH was quickly rushed to the Makati Medical Center where she was operated on. The next day ZHIENETH lost her speech and thereafter communicated with CRISELDA by writing on a magic slate. The injuries she sustained took their toil on her young body. She died fourteen (14) days after the accident or on 22 May 1983, on the hospital bed. She was six years old.
The cause of her death was attributed to the injuries she sustained. After the burial of their daughter, private respondents demanded upon petitioners the reimbursement of the hospitalization, medical bills and wake and funeral expenses which they had incurred. Petitioners refused to pay. Consequently, private respondents filed a complaint for damages.
ARGUMENTS OF THE PARTIES:
Jarco Marketing Corporation
1. CRISELDA was negligent in exercising care and diligence over her daughter by allowing her to freely roam around in a store filled with glassware and appliances
2. ZHIENETH too, was guilty of contributory negligence since she climbed the counter, triggering its eventual collapse on her.
3. counter was made of sturdy wood with a strong support; it never fell nor collapsed for the past fifteen years since its construction. 4. observed the diligence of a good father of a family in the selection, supervision and control of its employees
Conrado and Criselda
1. asserted that ZHIENETH should be entitled to the conclusive presumption that a child below nine (9) years is incapable of contributory negligence.
2. testimony of one of the store's former employees, Gerardo Gonzales, who accompanied ZHIENETH when she was brought to the emergency room of the Makati Medical Center claimed that when ZHIENETH was asked by the doctor what she did, ZHIENETH replied, "[N]othing, I did not come near the counter and the counter just fell on me." Accordingly, Gonzales' testimony on ZHIENETH's spontaneous declaration should not only be considered as part of res gestae but also accorded credit.
3. negligence could not be imputed to CRISELDA for it was reasonable for her to have let go of ZHIENETH at the precise moment that she was signing the credit card slip.
4. maintained that the proximate cause of ZHIENETH's death, was petitioners' negligence in failing to institute measures to have the counter permanently nailed.
DECISION OF LOWER COURTS:
1. RTC: dismissed the complaint and counterclaim after finding that the preponderance of the evidence favored petitioners, that the proximate cause of the fall of the counter on ZHIENETH was her act of clinging to it. trial court reasoned that the counter was situated at the end or corner of the 2nd floor as a precautionary measure hence, it could not be considered as an attractive nuisance.
2. CA: set aside the 15 January 1992 judgment of the Regional Trial Court (RTC), Makati City, Branch 60 in Civil Case No. 7119 and ordered petitioners to pay damages and attorney's fees to private respondents Conrado and Criselda (CRISELDA) Aguilar.
petitioners were negligent in maintaining a structurally dangerous counter. The counter was shaped like an inverted "L" 11 with a top
JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE TIOPE and ELISA PANELO, petitioners, vs. HONORABLE COURT OF APPEALS, CONRADO C. AGUILAR and CRISELDA R. AGUILAR, respondents.
FACTS:
Jarco Marketing Corporation is the owner of Syvel's Department Store, Makati City. Petitioners Leonardo Kong, Jose Tiope and Elisa Panelo are the store's branch manager, operations manager, and supervisor, respectively. Private respondents are spouses and the parents of Zhieneth Aguilar (ZHIENETH).
In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at the 2nd floor of Syvel's Department Store, Makati City. CRISELDA was signing her credit card slip at the payment and verification counter when she felt a sudden gust of wind and heard a loud thud. She looked behind her. She then beheld her daughter ZHIENETH on the floor, her young body pinned by the bulk of the store's gift-wrapping counter/structure. ZHIENETH was crying and screaming for help. Although shocked, CRISELDA was quick to ask the assistance of the people around in lifting the counter and retrieving ZHIENETH from the floor.
ZHIENETH was quickly rushed to the Makati Medical Center where she was operated on. The next day ZHIENETH lost her speech and thereafter communicated with CRISELDA by writing on a magic slate. The injuries she sustained took their toil on her young body. She died fourteen (14) days after the accident or on 22 May 1983, on the hospital bed. She was six years old.
The cause of her death was attributed to the injuries she sustained. After the burial of their daughter, private respondents demanded upon petitioners the reimbursement of the hospitalization, medical bills and wake and funeral expenses which they had incurred. Petitioners refused to pay. Consequently, private respondents filed a complaint for damages.
ARGUMENTS OF THE PARTIES:
Jarco Marketing Corporation
1. CRISELDA was negligent in exercising care and diligence over her daughter by allowing her to freely roam around in a store filled with glassware and appliances
2. ZHIENETH too, was guilty of contributory negligence since she climbed the counter, triggering its eventual collapse on her.
3. counter was made of sturdy wood with a strong support; it never fell nor collapsed for the past fifteen years since its construction. 4. observed the diligence of a good father of a family in the selection, supervision and control of its employees
Conrado and Criselda
1. asserted that ZHIENETH should be entitled to the conclusive presumption that a child below nine (9) years is incapable of contributory negligence.
2. testimony of one of the store's former employees, Gerardo Gonzales, who accompanied ZHIENETH when she was brought to the emergency room of the Makati Medical Center claimed that when ZHIENETH was asked by the doctor what she did, ZHIENETH replied, "[N]othing, I did not come near the counter and the counter just fell on me." Accordingly, Gonzales' testimony on ZHIENETH's spontaneous declaration should not only be considered as part of res gestae but also accorded credit.
3. negligence could not be imputed to CRISELDA for it was reasonable for her to have let go of ZHIENETH at the precise moment that she was signing the credit card slip.
4. maintained that the proximate cause of ZHIENETH's death, was petitioners' negligence in failing to institute measures to have the counter permanently nailed.
DECISION OF LOWER COURTS:
1. RTC: dismissed the complaint and counterclaim after finding that the preponderance of the evidence favored petitioners, that the proximate cause of the fall of the counter on ZHIENETH was her act of clinging to it. trial court reasoned that the counter was situated at the end or corner of the 2nd floor as a precautionary measure hence, it could not be considered as an attractive nuisance.
2. CA: set aside the 15 January 1992 judgment of the Regional Trial Court (RTC), Makati City, Branch 60 in Civil Case No. 7119 and ordered petitioners to pay damages and attorney's fees to private respondents Conrado and Criselda (CRISELDA) Aguilar.
petitioners were negligent in maintaining a structurally dangerous counter. The counter was shaped like an inverted "L" 11 with a top
wider than the base. It was top heavy and the weight of the upper portion was neither evenly distributed nor supported by its narrow
base. Thus, the counter was defective, unstable and dangerous; a downward pressure on the overhanging portion or a push from
the front could cause the counter to fall. Two former employees of petitioners had already previously brought to the attention of the
management the danger the counter could cause. But the latter ignored their concern. ZHIENETH, who was below seven (7) years
old at the time of the incident, was absolutely incapable of negligence or other tort.
ISSUES:
(1) whether the death of ZHIENETH was accidental or attributable to negligence; and
(2) in case of a finding of negligence, whether the same was attributable to private respondents for maintaining a defective counter or to CRISELDA and ZHIENETH for failing to exercise due and reasonable care while inside the store premises.
RULING:
(1) The death is attributable to negligence.
ISSUES:
(1) whether the death of ZHIENETH was accidental or attributable to negligence; and
(2) in case of a finding of negligence, whether the same was attributable to private respondents for maintaining a defective counter or to CRISELDA and ZHIENETH for failing to exercise due and reasonable care while inside the store premises.
RULING:
(1) The death is attributable to negligence.
Accident
• unforeseen event in which no fault or negligence attaches to the defendant.
• "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."
Negligence
• unforeseen event in which no fault or negligence attaches to the defendant.
• "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."
• 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.
• "the failure to 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.
2. The corporation and their employees are liable for negligence.
test in determining the existence of negligence is enunciated in the landmark case of Picart v. Smith, thus: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of negligence.
This testimony of Gonzales pertaining to ZHIENETH's statement formed (and should be admitted as) part of the res gestae under Section 42, Rule 130 of the Rules of Court, thus:
Part of res gestae. Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of the res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae.
It is axiomatic that matters relating to declarations of pain or suffering and statements made to a physician are generally considered declarations and admissions.
Under the circumstances thus described, it is unthinkable for ZHIENETH, a child of such tender age and in extreme pain, to have lied to a doctor whom she trusted with her life.
Without doubt, petitioner Panelo and another store supervisor were personally informed of the danger posed by the unstable counter.
Thus, as confronted by the situation petitioners miserably failed to discharge the due diligence required of a good father of a family.
Anent the negligence imputed to ZHIENETH, we apply the conclusive presumption that favors children below nine (9) years old in that they are incapable of contributory negligence.
In our jurisdiction, a person under nine years of age is conclusively presumed to have acted without discernment, and is, on that account, exempt from criminal liability. The same presumption and a like exemption from criminal liability obtains in a case of a person over nine and under fifteen years of age, unless it is shown that he has acted with discernment. Since negligence may be a felony and a quasi-delict and required discernment as a condition of liability, either criminal or civil, a child under nine years of age is, by analogy, conclusively presumed to be incapable of negligence; and that the presumption of lack of discernment or incapacity for negligence in the case of a child over nine but under fifteen years of age is a rebuttable one, under our law. The rule, therefore, is that a child under nine years of age must be conclusively presumed incapable of contributory negligence as a matter of law.
2. The corporation and their employees are liable for negligence.
test in determining the existence of negligence is enunciated in the landmark case of Picart v. Smith, thus: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of negligence.
This testimony of Gonzales pertaining to ZHIENETH's statement formed (and should be admitted as) part of the res gestae under Section 42, Rule 130 of the Rules of Court, thus:
Part of res gestae. Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of the res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae.
It is axiomatic that matters relating to declarations of pain or suffering and statements made to a physician are generally considered declarations and admissions.
Under the circumstances thus described, it is unthinkable for ZHIENETH, a child of such tender age and in extreme pain, to have lied to a doctor whom she trusted with her life.
Without doubt, petitioner Panelo and another store supervisor were personally informed of the danger posed by the unstable counter.
Thus, as confronted by the situation petitioners miserably failed to discharge the due diligence required of a good father of a family.
Anent the negligence imputed to ZHIENETH, we apply the conclusive presumption that favors children below nine (9) years old in that they are incapable of contributory negligence.
In our jurisdiction, a person under nine years of age is conclusively presumed to have acted without discernment, and is, on that account, exempt from criminal liability. The same presumption and a like exemption from criminal liability obtains in a case of a person over nine and under fifteen years of age, unless it is shown that he has acted with discernment. Since negligence may be a felony and a quasi-delict and required discernment as a condition of liability, either criminal or civil, a child under nine years of age is, by analogy, conclusively presumed to be incapable of negligence; and that the presumption of lack of discernment or incapacity for negligence in the case of a child over nine but under fifteen years of age is a rebuttable one, under our law. The rule, therefore, is that a child under nine years of age must be conclusively presumed incapable of contributory negligence as a matter of law.
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