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PART 2 LEGAL OPINION:

Below is an exchange between you and a hypothetical client. Based on theinformation given, write (1) a brief legal opinion/advice specifying the relevant factsof the case, the legal problems raised by your hypothetical client, your assessment of

the issues involved, and the possible courses of action that may be taken under thelaw; and (2) one legal document that may be used in connection with yourrecommended course of action.

Judy Ann Sanchez has come to consult you about the possibility of her bringing alawsuit against McBee as a result of the injuries she sustained after she fell from thefood chains staircase. Judy Ann brought along her daughter, Mara Clarita, to theinterview. Mara Clarita witnessed what happened. The following is your interviewwith her.

Interview with Mara Clarita Sanchez,accompanied by client, Judy Ann SanchezJanuary 10, 2011

Q: Mara, where were you on October 18, 2010?A: I was at McBee-Metropark Branch with my mother, Judy Ann.Q: Did you see your mother fall from the staircase?A: Yes.Q: What exactly happened?A: We have just ordered some spaghetti and sundaes. Since the ground floor

was already filled with people, we decided to eat at the second floor. Butwhen we reached the staircase, we found out that there was a birthday partyupstairs and it was closed to the public.

Q: So where did you eat?A: I approached a crew and asked if he could find a table for us.Q: What did he do?A: He said that the birthday party was about to end so we can go up and eat

there.Q: Did you go upstairs?A: Yes. My mother went up first.Q: What happened next?

A: On her way up, she met the McBee mascot (which was a pink bee) who washurrying down with another crew member. Since the mascot was so big, hehit my mother by the shoulder.

Q: What happened then?A: My mother lost her balance. She missed four steps and hit her head,

shoulders, back and buttocks on each step.Q: What did you when you saw your mother?A: I was shocked and temporarily rendered motionless. When I realized what

happened, I immediately rushed to my mothers side. I told the crew to callan ambulance.

Q: What did your mother do?A: She was crying. She complained of extreme back pain and could not stand up.Q: What happened next?

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When you asked Judy Ann what she has done so far with the case, she told youthat she asked the management of McBee-Metropark Branch to pay her P100,000 indamages for what she suffered. Although the management paid for the hospital bills,she suffered pain and was greatly inconvenienced by the weekly physical therapy she

was undergoing since the accident. When you asked about the managements responseto her demand for damages, she gave you the following letter:

December 15, 2010

Judy Ann Sanchez911 Bluewhale StreetPalanan, Makati City

Dear Ms. Sanchez:

I am writing in reference to your letter dated November 18, 2010 addressed toMs. Anna Batungbacal, Manager of the McBee-Metropark Branch. She endorsedyour letter to me as Operations Manager in charge of the McBee-MetroparkBranch.

We, at McBee-Metropark Branch are very sorry for any inconvenience yourfamily may have experienced in connection with your unfortunate accident lastOctober 18, 2010. As Ms. Batungbacal and I told you during our hospital visit onOctober 19, 2010, we truly understand how you and your family feel about theincident. We assure you that we will continue to shoulder all expenses related toyour weekly physical therapy until such time that you are fully restored to your

previous health.

Our conversation helped us understand each others situation. I hope that withthis, any past misunderstanding has been cleared up, and we can now put thisunfortunate incident behind us.

Please accept my sincerest apologies in behalf of the McBee-Metropark Branchteam. We truly hope to see you and your family in our store again.

Thank you.

Very truly yours,

McBee Foods Corporation

By:

Ted PalloneOperations Manager Metro Manila (South) Area

Laws and jurisprudence that may apply

1. Article 2176 of the Civil CodeWhoever by act or omission causes damage to another, there being faultor negligence is obliged to pay for the damage done Such fault or

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2. Article 2179 of the Civil CodeWhen the plaintiff's own negligence was the immediate and proximate

cause of his injury, he cannot recover damages. But if his negligence was onlycontributory, the immediate and proximate cause of the injury being thedefendant's lack of due care, the plaintiff may recover damages, but the

courts shall mitigate the damages to be awarded.

3. Article 2180 of the Civil CodeThe obligation imposed by Article 2176 is demandable not only for one's

own acts or omissions, but also for those of persons for whom one isresponsible.

xxx xxx xxxThe owners and managers of an establishment or enterprise are likewise

responsible for damages caused by their employees in the service of thebranches in which the latter are employed or on the occasion of their

functions.Employers shall be liable for the damages caused by their employees and

household helpers acting within the scope of their assigned tasks, eventhough the former are not engaged in any business or industry.

xxx xxx xxxThe responsibility treated of in this article shall cease when the persons

herein mentioned prove that they observed all the diligence of a good fatherof a family to prevent damage.

4. Article 1170 of the Civil Code

Those who in the performance of their obligations are guilty of fraud,negligence, or delay, and those who in any manner contravene the tenorthereof, are liable for damages.

5. Article 2202 of the Civil CodeIn crimes and quasi-delicts, the defendant shall be liable for all damages

which are the natural and probable consequences of the act or omissioncomplained of. It is not necessary that such damages have been foreseen orcould have reasonably been foreseen by the defendant.

6. Article 2203 of the Civil CodeThe party suffering loss or injury must exercise the diligence of a good

father of a family to minimize the damages resulting from the act or omissionin question.

7. Article 2214 of the Civil CodeIn quasi-delicts, the contributory negligence of the plaintiff shall reduce

the damages that he may recover.

8. Article 2215 of the Civil CodeIn contracts, quasi-contracts, and quasi-delicts, the court may equitably

mitigate the damages under circumstances other than the case referred to inthe preceding article, as in the following instances:(1) Th t th l i tiff hi lf h t d th t f th t t

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(3) In cases where exemplary damages are to be awarded, that the defendantacted upon the advice of counsel;

(4) That the loss would have resulted in any event;(5) That since the filing of the action, the defendant has done his best to lessen

the plaintiff's loss or injury.

9. Article 2216 of the Civil CodeNo proof of pecuniary loss is necessary in order that moral, nominal,

temperate, liquidated or exemplary damages, may be adjudicated. Theassessment of such damages, except liquidated ones, is left to the discretion ofthe court, according to the circumstances of each case.

10. Article 2217 of the Civil CodeMoral damages include physical suffering, mental anguish, fright, serious

anxiety, besmirched reputation, wounded feelings, moral shock, social

humiliation, and similar injury. Though incapable of pecuniary computation,moral damages may be recovered if they are the proximate result of thedefendant's wrongful act for omission.

11. Article 2219 of the Civil CodeMoral damages may be recovered in the following and analogous cases:xxx xxx xxx

(2) Quasi-delicts causing physical injuries;xxx xxx xxx

12.

Article 2221 of the Civil CodeNominal damages are adjudicated in order that a right of the plaintiff,which has been violated or invaded by the defendant, may be vindicated orrecognized, and not for the purpose of indemnifying the plaintiff for any losssuffered by him.

13. Article 2229 of the Civil CodeExemplary or corrective damages are imposed, by way of example or

correction for the public good, in addition to the moral, temperate, liquidatedor compensatory damages.

14. Article 2231 of the Civil CodeIn quasi-delicts, exemplary damages may be granted if the defendant

acted with gross negligence.

15. Jarco Marketing Corporation v. Court of Appeals, G.R. No. 129792, December 21,1999, 321 SCRA 375

An accident pertains to an unforeseen event in which no fault ornegligence attaches to the defendant. It is "a fortuitous circumstance, event orhappening; an event happening without any human agency, or if happeningwholly or partly through human agency, an event which under the

circumstances is unusual or unexpected by the person to whom it happens."On the other hand, negligence is the omission to do something which a

bl id d b th id ti hi h di il l t th

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observe, for the protection of the interest of another person, that degree ofcare, precaution and vigilance which the circumstances justly demand,whereby such other person suffers injury."

Accident and negligence are intrinsically contradictory; one cannot existwith the other. Accident occurs when the person concerned is exercising

ordinary care, which is not caused by fault of any person and which could nothave been prevented by any means suggested by common prudence.

16. Child Learning Center, Inc. v. Tagorio, G.R. No. 150920, November 25, 2005, 476SCRA 236

The doctrine of res ipsa loquitorapplies where (1) the accident was of suchcharacter as to warrant an inference that it would not have happened exceptfor the defendant's negligence; (2) the accident must have been caused by anagency or instrumentality within the exclusive management or control of theperson charged with the negligence complained of; and (3) the accident must

not have been due to any voluntary action or contribution on the part of theperson injured.

17. Philippine National Construction Corporation v. Court of Appeals, G.R. No.159270, August 22, 2005, 467 SCRA 569

The test for determining whether a person is negligent in doing an actwhereby injury or damage results to the person or property of another is this:could a prudent man, in the position of the person to whom negligence isattributed, foresee harm to the person injured as a reasonable consequence ofthe course actually pursued? If so, the law imposes a duty on the actor to

refrain from that course or to take precautions to guard against itsmischievous results, and the failure to do so constitutes negligence.Reasonable foresight of harm, followed by the ignoring of the admonitionborn of this provision, is always necessary before negligence can be held toexist.

18. Saludaga v. Far Eastern University, G.R. No. 179337, April 30, 2008, 553 SCRA741

In order forforcemajeure to be considered, respondents must show that nonegligence or misconduct was committed that may have occasioned the loss.An act of God cannot be invoked to protect a person who has failed to takesteps to forestall the possible adverse consequences of such a loss. One'snegligence may have concurred with an act of God in producing damage andinjury to another; nonetheless, showing that the immediate or proximatecause of the damage or injury was a fortuitous event would not exempt onefrom liability. When the effect is found to be partly the result of a person'sparticipation - whether by active intervention, neglect or failure to act - thewhole occurrence is humanized and removed from the rules applicable toacts of God.

19. Philippine National Construction Corporation v. Court of Appeals, G.R. No.

159270, August 22, 2005, 467 SCRA 569Contributory negligence is conduct on the part of the injured party,t ib ti l l t th h h h ff d hi h f ll b l

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20. Mangaliag v. Catubig-Pastoral, G.R. No. 143951, October 25, 2005, 474 SCRA153

It must be remembered that moral damages, though incapable ofpecuniary estimation, are designed to compensate and alleviate in some waythe physical suffering, mental anguish, fright, serious anxiety, besmirched

reputation, wounded feelings, moral shock, social humiliation, and similarinjury unjustly caused a person. Moral damages are awarded to enable theinjured party to obtain means, diversions or amusements that will serve toalleviate the moral suffering he/she has undergone, by reason of thedefendant's culpable action. Its award is aimed at restoration, as much aspossible, of the spiritual status quo ante; thus, it must be proportionate to thesuffering inflicted. Since each case must be governed by its own peculiarcircumstances, there is no hard and fast rule in determining the properamount.

21. B.F. Metal (Corporation) v. Lomotan, G.R. No. 170813, April 16, 2008, 551 SCRA618

In the case of moral damages, recovery is more an exception rather thanthe rule. Moral damages are not punitive in nature but are designed tocompensate and alleviate the physical suffering, mental anguish, fright,serious anxiety, besmirched reputation, wounded feelings, moral shock,social humiliation, and similar harm unjustly caused to a person. In order thatan award of moral damages can be aptly justified, the claimant must be ableto satisfactorily prove that he has suffered such damages and that the injurycausing it has sprung from any of the cases listed in Articles 2219 and 2220 of

the Civil Code. Then, too, the damages must be shown to be the proximateresult of a wrongful act or omission. The claimant must establish the factualbasis of the damages and its causal tie with the acts of the defendant. In fine,an award of moral damages would require, firstly, evidence of besmirchedreputation or physical, mental or psychological suffering sustained by theclaimant; secondly, a culpable act or omission factually established; thirdly,proof that the wrongful act or omission of the defendant is the proximatecause of the damages sustained by the claimant; and fourthly, that the case ispredicated on any of the instances expressed or envisioned by Article 2219and Article 2220 of the Civil Code.

22. Philippine Commercial International Bank v. Alejandro, G.R. No. 175587,September 21, 2007, 533 SCRA 738

[N]ominal damages may be awarded to a plaintiff whose right has beenviolated or invaded by the defendant, for the purpose of vindicating orrecognizing that right, and not for indemnifying the plaintiff for any losssuffered by him. Its award is thus not for the purpose of indemnification for aloss but for the recognition and vindication of a right. Indeed, nominaldamages are damages in name only and not in fact. They are recoverablewhere some injury has been done but the pecuniary value of the damage isnot shown by evidence and are thus subject to the discretion of the court

according to the circumstances of the case.

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23. B.F. Metal (Corporation) v. Lomotan, G.R. No. 170813, April 16, 2008, 551 SCRA618

Exemplary or corrective damages are imposed, by way of example orcorrection for the public good, in addition to moral, temperate, liquidated orcompensatory damages. Exemplary damages cannot be recovered as a matter

of right; the court will decide whether or not they should be adjudicated. Inquasi-delicts, exemplary damages may be granted if the defendant acted withgross negligence. While the amount of the exemplary damages need not beproved, the plaintiff must show that he is entitled to moral, temperate orcompensatory damages before the court may consider the question ofwhether or not exemplary damages should be awarded.

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Republic of the PhilippinesNational Capital Judicial Region

Regional Trial CourtQuezon City, Branch I

JONNA BUENO,Plaintiff,

-versus- Civil Case No. 27-112011For: Damages

GLORIA SUPERMART, INC.Defendant.

PLAINTIFFS MEMORANDUM

Plaintiff, through the undersigned counsel, respectfully submits the followingMemorandum and states that:

PREFATORY STATEMENT

This case refers to an action for recovery of damages filed by the plaintiff for the injuriessustained by her 5-year old son when the latter slipped on the wet floor in one of the aisles ofthe defendants grocery store. Plaintiff claims that the defendant is liable for the negligent act ofits employees who failed to clear the puddle of liquid through appropriate signs or barriers.Defendant on the other hand claims that the event was merely an unfortunate accident for whichit could not be held liable. In any event, defendant claims, the plaintiff is guilty of contributorynegligence.

STATEMENT OF THE FACTS

The following are the undisputed facts called from the evidence presented by bothparties:

(1)Plaintiff Jonna Bueno is of legal age, married, and a resident of 89 Little Baguio St.,San Juan City, Metro Manila, while Defendant Gloria Supermart, Inc. is a dulyregistered corporation with principal place of business located along Ortigas Avenue,San Juan, Metro Manila.

(2)Defendant operates a grocery store from where the plaintiff had been purchasing hergroceries for the past 20 years.

(3)On May 11, 2010, at about 10:00 a.m., plaintiff, together with her 5-year old sonRicky, went to the Defendants store to shop for groceries. A small red ball whichwas rolling along one of the aisles caught Rickys attention. While running after the

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ball, Ricky suddenly slipped on a wet section of the aisle. He however used his rightwrist to break the fall.

(4)Plaintiff, with the assistance of a store clerk, immediately brought Ricky to theorthopedic Hospital where his right wrist was operated on to restore the position of afractured bone. Thereafter he was made to stay in the hospital overnight. Plaintiff

spent P22,840.00 for the doctors fee, hospitalization and medicine, evidenced byreceipts.(5)Upon Rickys discharge from the hospital it took about six weeks for him to recover

the use of his right wrist. To distract him from the pain suffered, plaintiff incurredexpenses of approximately P5,000.00 for toys.

ISSUES

(1)Whether or not the event was an accident for which defendant may be held liable;(2)Whether or not the defendants employees were negligent in failing to clear the wet

floor and/or to provide adequate warning to customers of the existence of the puddle

of liquid;(3)Whether or not the plaintiff is guilty of contributory negligence; and(4)Whether of not the plaintiff is entitled to be compensated for damages.

ARGUMENTS

The issues shall be addressed in seriatim:

(1) THE INCIDENT WAS A FORESEEABLE EVENTWHICH COULD HAVE BEEN PREVENTED

An accident pertains to an unforeseen event in which no fault or negligence attached tothe defendant. It occurs when the person concerned is exercising ordinary case and the event,not caused by fault of any person, could not have been prevented by any means suggested bycommon prudence. 1

Defendants claim that the incident was a mere accident is neglected by the testimony ofits own witness. Mr. Rene Castro, the supermarket supervisor, confirmed in his cross-examination that accidents normally occur in defendants supermarket. In fact they occurabout once a year such that the defendant have established in dealing with such accidents.

Accidents having been treated by the defendant as a normal occurrence and for which aprocedure for dealing with them has been established, are thus taken out of the context ofunforeseeable events. What the defendant defines as accidents are actually mere unfortunateoccurrences which could be prevented but which are nonetheless not prevented due to fault ornegligence despite its forseeability.

Accidents, in order to exculpate defendant from liability, is one that in unforeseen. Inthis case, the incident was foreseeable, an normal occurrence which could have been prevented

1 Jarco Marketing Corporation vs. Court of Appeals, G.R. No. 129792, December 21, 1999, 321 SCRA375

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had the defendants employees follow the procedures established for dealing with them.Procedures which include the prevention of the so-called accidents.

(2) DEFENDANTS EMPLOYEES WERENEGLIGENT IN MAINTAINING THE

SAFE CONDITION OF THE STORE

Negligence is the omission to do something which a reasonable man, guided by thoseconsideration which ordinarily regulate the conduct of human affairs, would do, or the doing ofsomething which a prudent and reasonable man would not do.2

In the ordinary course of things one can foresee that a person who might by chance stepon a puddle of liquid or walk on a slippery floor would most likely slip. In fact this is a commonsight which may be prevented by the immediate clearing of the liquid, drying of the floor, orplacing appropriate indicators of the wet floor. In the last instance, a person who nonethelesswalks on such paths despite the indicators does so at his own risk.

In this case the defendant neither cleared the liquid nor indicated its existence withappropriate signs. Despite the natural consequence of its existence on a person using ordinarycase who might by chance step on it, and slip, still defendant failed to take the necessaryprecaution which might be expected from a reasonably prudent man in the position of saiddefendant. As such, defendant, acting through its employees, should be held liable for itsnegligence which caused injury to the plaintiff and to her son.

(3) PLAINTIFF EXERCISED ORDINARY CARE ASEXPECTED UNDER THE CIRCUMSTANCES

Contributory negligence is conduct on the part of the injured party contributing as a legalcause to the harm he has suffered, which falls below the standard which he is required toconform for his own protection. It is an act or omission amounting to want of ordinary care onthe part of the person injured which, concurring with the defendants negligence, is theproximate cause of the injury. 3

Proximate cause is defined as that cause, which, in natural and continous sequence,unbroken by any efficient intervening cause, produces the injury, and without which the resultwould not have occurred. 4

Thus, the plaintiffs assumed negligence having been broken by an efficient interveningcause, plaintiff could not be deemed to have contributed to the injury for which damages arebeing claimed.

(4) PLAINTIFF SHOULD BE COMPENSATED

2 Id.3 National Power Corp. vs. Heirs of Noble Cosianan, GR No. 165967, November 27, 2008, 572SCRA71.4 Ramos vs. COL Realty Corp., GR No. 184905, August 26, 2009,597SCRA526. Rules of Court, Rule 131, SCC 3(id).

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FOR ACTUAL AND MORAL DAMAGES

Article 2176 of the New Civil Code provides that whoever causes damage to another,either by act of omission and with either fault or negligence, is obliged to pay for the damagedone. The obligation imposed by Article 2176 is demandable not only for ones own acts or

omissions, but also for those of persons for whom one is responsible. Owners and managers ofan establishement or enterprise are likewise responsible for damages caused by their employeesin the service of the branches in which the latter are employed or on the occasion of theirfunctions. 5

Defendant, as employer, is liable under Article 2180, supra, for the negligence of itsemployees. Not having raised nor proved that it observed all the diligence of a good father of afamily to prevent the damage, its liability is fixed.

Among the damages for which defendant should be made liable is the reimbursement ofthe actual expenses for hospitalization incurred by the plaintiff from the defendants from the

defendants negligence. Article 2199, supra, provides that compensation for pecuniary losssuffered is in order only when duly proved. Such is the case. Plaintiff, through her testimony andby adequate receipts, has duly proved her pecuniary loss. This being the case, plaintiff is entitledto compensation for actual damages.

In addition, plaintiff is entitled to the recovery of moral damages for the emotional painthe defendants negligence has brought her and her son. In this regard, plaintiff seeks payment ofmoral damages to alleviate their suffering and anguish in an amount commensurate to thedamage caused.

RELIEF

WHEREFORE it is respectfully prayed that judgment be rendered by this HonorableCourt ordering the defendant to pay:

(1)Actual damages in the amount of P22,840.00;(2)Moral damages in the amount of P500,000.00; and(3)Costs of suit.Other reliefs as may be just and equitable are likewise prayed for.

Quezon City, Philippines, November 27, 2011.

Atty. Rex BeltranCounsel for the plaintiff123 Road I, Quezon CityIBP No. 1234567; 01/01/11-Manila

5 Art. 2180, New Civil Code.

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PTR no. 1234567;01/0111- ManilaRoll No. 12345; 05/05/05MCLE No. 001234;09/09/09

The Branch Clerk of Court

RTC, Branch 1Quezon City

Greetings:

Please submit the foregoing Memorandum for the Courts consideration.

(Sgd. Atty. Rex Beltran)

Copy Furnished:

Atty. Emil SungaCounsel for the Defendant