MEMORANDUM FOR THE PLAINTIFF

Plaintiff, through counsel, respectfully submits this memorandum to wit: PREFATORY STATEMENT Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same (Art. 20, Civil Code). STATEMENT OF THE CASE This is an action for damages filed by Jonna Bueno against Gloria Supermart Inc., for the injuries that her son, Ricky suffered at its supermarket. Ms. Bueno claims P500,000.00 damages against Gloria Supermart Inc. for the expense and for the emotional pain that it brought to her son. STATEMENT OF FACTS Jonna Bueno, the plaintiff is the mother of Ricky, who is her only son. Ricky who is 5yrs old went with his mother shopping at Gloria Supermart at about 10am on May 11, 2010. Plaintiff have been buying her groceries and other things from Gloria Supermart located just two blocks from her condominium for the past 20 years. It was on this occasion on May 11, 2010 at about 10am that his son, Ricky, slipped on the wet floor of Gloria Supermart. The plaintiff alleged that her son ran to catch a ball along the aisle and he slipped on the wet section of the aisle. Henceforth, Ms. Bueno is blaming the management of the Gloria Supermart due to its gross negligence causing his son to suffer excruciating pain from a fractured arm which caused his son great discomfort and depression. Ricky was brought to the Orthopedic Hospital and was attended to by Dr. John Lim, an orthopedic surgeon. It took six (6) weeks for Ricky to recover the use of his right wrist. Upon investigation Ms. Bueno alleged that when Ricky fell down the floor, she didnt see any supermarket cleaner nearby nor any sign near the puddle of syrup on the floor warning customers of the danger if presents. The defendant, Rene Castro, who is the supermarket supervisor for 5yrs of Gloria Supermart Inc., alleged during the investigation that the Supermart should not be blamed for the accident that happened to Ricky because it exercised proper diligence in makings its premises safe for its customers; that the accident involving Ricky was something it could not reasonably anticipate and so beyond its control and that Ricky and her mother contributed to Ricky slipping on the floor. Castro further stated that Ricky could have bumped into the shelf containing syrup bottles and knocked off some of them which caused the syrup to be spilled on the floor. When asked if he actually saw Ricky bump on the shelves, Castro stated that he was just merely speculating it. ISSUES:

(1) Whether or not Gloria Supermart exercised proper diligence in making its premises safe for its customers. (2) Whether or not Rickys accident was through his own contributory negligence; (3) Whether of not the plaintiff is entitled to the damages that she is claiming for. ARGUMENTS/DISCUSSIONS: Gloria Supermart Inc. did not exercise proper diligence in making its premises safe for its customers. Diligence on the part of Gloria Supermart Inc. should not be presumed but should be proven that its management and employees were not grossly negligent in making its premises safe for its customers. As stated in Sarco Marketing Corp. vs. Court of Appeals, negligence is the omission to do something which is 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. In the instant case, there was negligence on the part of the Supermart since it failed to install any warning sign on the puddle of syrup on the floor, warning the customers of the due consequences thereof. Furthermore, in any big grocery stores such as the Gloria Supermart, there should always be a standby floor cleaner who will eventually mop the floor in case there is liquid in it since it is fact that a fitted or cemented floor is usually slippery when wet. There was no supermarket cleaner nearby when Ricky slipped on the floor was was alleged by Ms. Bueno during the investigation, hence proving the negligence of the management in making the premises safe. 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 defendants negligence; (2) the accident must have been caued 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 have been due to any voluntary action or contribution on the part of the person injured (chilled Learning Center Inc., b. Tagorio, GR No. 150920, Nov. 25, 2005, 476 SCRA236) In this case, it was evident that the accident would have happened if it were not for the defendants negligence because it did not immediately wipe the spilled syrup. The cause of the accident was as well within the exclusive management and control of the person charged with the negligence complained of because Mr. Castro could have assigned a floor cleaner in the area and the accident was not due to any voluntary action or contribution on the part of the person injured as will be proven in the succeeding paragraphs. Therefore, Gloria Supermart Inc. was grossly negligent in making its premises safe for its customers.

(2) THE ACCIDENT OF RICKY WAS NOT THROUGH HIS OWN CONTRIBUTORY NEGLIGENCE. As was alleged by Mr. Castro during the investigation, Ricky bumped into the shelf containing the syrup bottles and knocked off such bottles thus causing the spilling of the liquid on the floor. This was not, however, proven by Mr. Castro because he did not actually see Ricky bump into the shelf. Mr. Castro was merely speculating it as what he has stated during the investigation. As based on Rules on Evidence Sec. 36, a witness can testify only to those facts which he knows of his personal knowledge. Therefore, it cant be said that Rickys accident was due to his own contributory negligence. As stated in National Power Corp.vs. Heirs of Noble Casionan, 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 which is required to conform for his own protection. It is an act or omission amounting to want of ordinary care on the part of the person injured which concurrig with the defendants negligence, is the proximate cause of the injury. In the instant case, the defendants negligence of not wiping the wet floor was the proximate cause of Rickys injuries. Proximate cause is defined as that cause which, in natural or continous sequence, unbroken by any efficient cause produces the injury and without which the result would not have occurred. (ramos vs. C.O.L Realty Corp. G.R. No. 184905, Aug. 28, 2009, 597 SCRA 526). The proximate cause of Rickys injury was the puddle of syrup on the floor which caused him to slide. The owners and managers therefore of the establishment are likewise responsible for damages. (4) THE PLAINTIFF IS ENTITLED TO THE DAMAGES SHE IS ASKING FOR. In every tort case filed under Art. 2176 of the Civil Code, plaintiff has to prove by a preponderance of evidence: (1) the damages suffered by the plaintiff; (2) the fault or negligence of the defendant or some other person whose act he must respond and (3) the connection of cause and effect between the fault or negligence and the damage incurred. (Child learning Center Inc. v. Tagorio) In the instant case, the plaintiff was able to prove the damages suffered since the child Ricky was hospitalized and was operated on his wrist and it took 6 weeks for the child to recover. Likewise, the fault or negligence of the defendant was also proven in that it failed to exercise the diligence of a good father of a family to prevent the damage and there was a connection between the cause and effect between the fault or negligence and the damage incurred. Moral damages can also be claimed by Ms. Bueno because of the physical suffering, mental anguish, shock, social humiliation and similar injuries which Ricky has suffered.

Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages. And Ms. Bueno is entitled to such as shown by her hospital bills and receipts. WHEREFORE, premises considered, it is prayed to this HONORABLE COURT, that judgement be rendered making Gloria Supermart Inc., liable for damages for the injury suffered by Ms. Buenos son. Other relief just and equitable is likewise prayed for. Quezon City, November 27, 2011.

Atty. A Counsel for the Plaintiff