7/25/2019 (143) Jarco Marketing Et.al vs. CA

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JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE TIOPE and ELISA

PANELO, petitioners, vs. HONORALE CO!RT O" APPEALS, CONRADO C. AG!ILAR and

CRISELDA R. AG!ILAR, respondents

"ACTS

When respondent Criselda was signing her credit card slip at payment and verification counter in SyvelsDepartment Store in Makati, she felt a sudden gust of wind a heard a loud sound. She looked behind her

and saw her daughter Zhieneth ! years old" on the floor pinned by the bulk of the stores gift#wrapping

counter.

She was rushed to the hospital but died after $% days.

&rivate respondents filed a complaint for damages.

&etitioners on the other hand, denied any liability imputing the negligence to Criselda for allowing her

daughter to roam freely in the department store. 'lleging further, that the deceased committed

contributory negligence when she climbed the counter. 'lso herein petitioners defense is that they have

e(ercised due diligence of a good father of a family in the selection, supervision and control of their

employees.

)rial Court favored petitioners, contemplating that Zhieneth*s action is the pro(imate cause of the

accident. +t also found that the preponderance of the evidence favored petitioners. +t ruled that the

pro(imate cause of the fall of the counter on Z+--) was her act of clinging to it. +t believed petitioners

witnesses who testified that Z+--) clung to the counter, afterwhich the structure and the girl fell with

the structure falling on top of her, pinning her stomach. +n contrast, none of private respondents witnesses

testified on how the counter fell. )he trial court also held that C/+S-0D's negligence contributed to

Z+--)s accident.

+n absolving petitioners from any liability, the trial court reasoned that the counter was situated at the end

or corner of the 1nd floor as a precautionary measure hence, it could not be considered as an attractive

nuisance. )he counter was higher than Z+--). +t has been in e(istence for fifteen years. +ts structure

was safe and well#balanced. Z+--), therefore, had no business climbing on and clinging to it.

C' favored respondents on it declared that Z+--), who was below seven 2" years old at the time of

the incident, was absolutely incapable of negligence or other tort. +t reasoned that since a child under nine

3" years could not be held liable even for an intentional wrong, then the si(#year old Z+--) could not

be made to account for a mere mischief or reckless act. +t also absolved C/+S-0D' of any negligence,

finding nothing wrong or out of the ordinary in momentarily allowing Z+--) to walk while she signed

the document at the nearby counter.

Iss#es

W4 Zhieneth*s death was accidental or attributable to negligence.

W4 negligence was attributable to petitioners 5for maintaining a defective counter6 or to Sps. 'guilar 5for

failing to e(ercise due and reasonable care while inside the store6.

Ratio

'ccident v. egligence 7 they are intrinsically contradictory

7/25/2019 (143) Jarco Marketing Et.al vs. CA

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'CC+D-) 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 une(pected by the person to whom it happens"8 there is e(ercise of ordinary care here

-90+9-C- 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

'lternatively, it is the failure to observe, for the protection of another person*s interest, that degree of care,

precaution and vigilance which the circumstances :ustly demand, whereby such other person suffers

in:ury

&icart v. Smith lays down the test to determine W4 negligence e(ists; 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< +f not, he is guilty of negligence.

SC found that Zhieneth performed no act that facilitated her death. =asis is her statement to the doctor as

related by former employee 9on>ales. +t was made part of the res gestae since she made the statement

immediately subse?uent to the startling occurrence. +t is a(iomatic that matters relating to declarations ofpain or suffering and statements made to a physician are generally considered declarations and

admissions. 'lso, 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.

Ot$er %indin&s'

&etitioners 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 re?uired of a good father of a family.

)hey failed to establish that the testimonies of former employees were biased.

Conclusive presumption that children below 3 are incapable of contributory negligence is applied.

-ven if contributory negligence would be attributed to Zhieneth, no in:ury 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 :ust a foot away from her mother, and the counter was :ust four meters away from Criselda

contrary to statements that Zhieneth was loitering at that time".

&art of res gestae. Statements made by a person while a startling occurrence is taking place or

immediately prior or subse?uent thereto with respect to the circumstances thereof, may be given in

evidence as part of the res gestae. So, also, statements accompanying an e?uivocal act material to theissue, and giving it a legal significance, may be received as part of the res gestae.

What is the doctrine of attractive nuisance?

One who maintains on his estate or premises an attractive nuisance without exercising due case to prevent children from playing

therewith or resorting thereto, is liable to a child of tender years who is injured thereby, even if the child is technically a trespasser in

the premises.