Jarco Marketing v. CA

Jarco Marketing, Leonardo Kong, Jose Tiope, Elisa Panelo v. CA, Sps. Conrado and Criselda Aguilar

1999 / Davide, Jr. [Negligence > Standard of conduct > Children]

Facts

Jarco Marketing owns Syvel's Department Store; Kong, Tiope, and Panelo are store managers; Sps. Aguilar are the parents of daughter Zhieneth.

Criselda and Zhieneth Aguilar (6 years old) were at the 2nd floor of Syvel's Department Store. Criselda was signing her credit card slip when she felt a sudden gust of wind and heard a loud thud. When she looked behind her, she saw her daughter pinned by the bulk of the store's gift wrapping counter. She asked the assistance of the people around her, and she was immediately rushed to Makati Medical Center where she was operated. The next day, she lost her speech. She died 14 days after the accident. The cause of her death was attributed to the injuries sustained. 

     After her burial, Sps. Aguilar demanded the reimbursement of hospitalization, medical bills, and wake and funeral expenses from the petitioners, but they refused to pay. Sps. Aguilar filed a complaint for damages, seeking the payment of actual [157k~] and moral [300k] damages, attorney's fees [20k], and for loss of income and exemplary damages.

The petitioners denied any liability for Zhieneth's injuries and death. They also said the complaint was malicious, so they sought the dismissal of the complaint and an award of moral and exemplary damages, as well as attorney's fees.

• Criselda was negligent in exercising care and diligence over her daughter by allowing her to freely roam around in a store with glassware and appliances
• Zhieneth was guilty of contributory negligence for climbing the counter, thereby triggering its collapse
• Counter was made of sturdy wood with strong support, and it has never fell nor collapsed for the past 15 years since its construction
• Jarco Marketing maintained that it observed due diligence of a good father of the family
• Other petitioners raised due care and diligence in the performance of its duties

RTC found that the preponderance of evidence favored the store, et al, saying that the proximate cause was Zhieneth's act of clinging to the counter, and that Criselda's negligence contributed to the accident. The RTC found that the counter was not an attractive nuisance [something that would attract children to approach, get on or use it], since the counter was situated at the end or corner of the 2nd floor.

Here are the assertions of Sps. Aguilar:

• Zhieneth should be entitled to the conclusive presumption that a child below 9 is incapable of contributory negligence.
• Even if she is capable of contributory negligence, it was physically impossible for her to have propped herself on the counter considering her small frame, and height and weight of the counter.
• The fact that a former employee of the store, Gonzales, accompanied Zhieneth to the hospital belied the theory that Zhieneth climbed the counter.
• This employee Gonzales said that when Zhieneth was asked by the doctor what she did, she said "Nothing, I did not come near the counter and the counter just fell on me." This should be accorded credit according to the spouses.
• Negligence could not be imputed to Criselda since it was reasonable for her to let go of Zhieneth at that moment that she was signing the credit card slip.
• The proximate cause was petitioner's negligence in failing to institute measures to have the counter permanently nailed.

In response, here is what the petitioners have to say:

• Zhieneth's death was an ACCIDENT.
• Nailing the counter to the ground was not necessary because it has been there for the longest time without any prior accident and it's just in a corner.
• The criminal case for homicide through simple negligence filed against them was dismissed, and they were acquitted.

The CA reversed RTC, ruling in favor of Sps. Aguilar. 

• Petitioners were negligent in maintaining a structurally dangerous counter [it's shaped like an inverted L; the top is wider than the base; weight of the upper portion not evenly distributed nor supported by the narrow base]. Two former employees brought this to the attention of the management but the latter ignored their concern. CA said the incident could have been avoided had petitioners repaired this defective counter. The contention that it has been there for a long time without a prior incident is immaterial. 
• Zhieneth was incapable of negligence or other tort.
• Criselda was absolved of any negligence.
• Testimony of Gonzales (former employee) given credit
• Awarded actual damages, compensatory damages [denied award of funeral expenses for lack of proof to substantiate it]

CA denied petitioners' MfR, so they are now seeking the reversal of said decision, saying that since the action is based on tort, any finding of negligence on the part of Sps. Aguilar would negate their claim for damages, where said negligence was the proximate cause of the injury sustained. They also assailed the testimony of Gonzales who was already separated from the store (tarnished by ill-feelings and all).

Issues and Holding

1. WON Zhieneth's death was accidental or attributable to negligence. ATTRIBUTABLE TO NEGLIGENCE
2. WON negligence was attributable to petitioners [for maintaining a defective counter] or to Sps. Aguilar [for failing to exercise due and reasonable care while inside the store]. FAULT OF PETITIONERS

Ratio

Accident v. Negligence - they are intrinsically contradictory

• ACCIDENT pertains to an unforeseen event in which no fault or negligence attaches to defendant (or if it happens wholly or partly through human agency, it is an event which under the circumstances is unusual or unexpected by the person to whom it happens); there is exercise of ordinary care here
• 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
• • Alternatively, it is the failure to observe, for the protection of another person's interest, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury

Picart v. Smith lays down the test to determine WON negligence exists: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinary prudent person would have used in the same situation? If not, he is guilty of negligence.

SC found that Zhieneth performed no act that facilitated her death. Basis is her statement to the doctor as related by former employee Gonzales. It was made part of the res gestae since she made the statement immediately subsequent to the startling occurrence. It is axiomatic that matters relating to declarations of pain or suffering and statements made to a physician are generally considered declarations and admissions. Also, the court considered the fact that Zhieneth was of a tender age (and in so much pain!), so it would be unthinkable that she would lie.

Other findings:

• Petitioners were informed of the danger posed by the unstable counter, yet they did not act on the matter, so they failed to discharge the due diligence required of a good father of a family.
• They failed to establish that the testimonies of former employees were biased.
• Conclusive presumption that children below 9 are incapable of contributory negligence is applied.
• • Judge Sangco [book author] says that children below 9 is conclusively presumed to have acted without discernment, and are exempt from criminal liability. Since negligence may be a felony and a QD, it required discernment as a condition of liability, so therefore, said children are presumed to be incapable of negligence.
  • Even if contributory negligence would be attributed to Zhieneth, no injury should have occurred if petitioners' theory that the counter is stable and sturdy is to be believed.
• Criselda is absolved from any contributory negligence, since it was reasonable for her to let go of her child to sign a slip.
• Zhieneth was just a foot away from her mother, and the counter was just four meters away from Criselda (contrary to statements that Zhieneth was loitering at that time).