Republic of the Philippines

Regional Trial Court

Branch 22
Cebu City

SPOUSES ED DANTE LATONIO AND MARY ANN LANTONIO

And the minor ED CHRISTIAN LATONIO
Plaintiff,

Civil Case No. CEB-26126

- versus- FOR: DAMAGES

McGeorge Food Industries

Defendant

x --------------------------------------x

MEMORANDUM
For the Plaintiff

COMES NOW THE plaintiff, through the undersigned

counsel, unto this Honorable Court most respectfully submits
and presents this Memorandum in the above-titled case and aver
that:
I. STATEMENT OF FACTS

On September 17, 2000, the petitioners, spouses Ed and Mary

Ann Latonio accompanied their eight-month-old child Ed Christian to
a birthday party at the McDonald’s Restaurant, Ayala Center, Cebu
City.

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During the party and as part of the birthday package, McDonald’s
presented two mascots – “Birdie” and “Grimace” – to entertain and
dance for the guests. Respondent Tyke Philip Lomibao was the
person inside the “Birdie” mascot suit.

After the mascots danced, guests had their pictures taken with them.
Intending to have her child’s photo taken with the mascots, Mary Ann
placed Ed Christian on a chair in front of the mascot “Birdie.” The
mascot positioned itself behind the child and extended its “wings” to
give a good pose for the camera.

As photos were about to be taken, Mary Ann released her hold of Ed

Christian. Seconds later, the child fell head first from the chair onto
the floor. Several guests attended to Ed Christian. Meanwhile, the
employees of respondent Cebu Golden Food assisted petitioners in
giving first aid treatment to Ed Christian. Petitioners, nevertheless,
remained and continued with the party and left only after the party
was over.

II. STATEMENT OF ISSUES

1. Whether or not Cebu Golden Food is liable through their

employee’s negligence?

2. Whether or not the employee’s negligence is the proximate cause

of Ed Christian’s fall?

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 III. ARGUMENTS / DISCUSSION

A. The negligence is on the part of Mr. Tyke Philip which causes

Ed Christian’s Fall.

We submit in our first argument that the negligence is on the

part of Mr. Tyke Philip and not on our client, Spouses Latonio. It has
been clearly shown that Mr. Tyke Philip was given the duty to hold Ed
Latonio and yet he did not fulfill his duty to perform which causes an
injury to the son of the spouses. We further submit that Mr. Tyke
Philip, McGeorge Food Industries Inc., and Cebu Golden Food
Industries, Inc. should be collectively held liable for such negligent
acts in the amount of 15,000.000.00 Php for the hospitalization and
moral damages that has been incurred by our client.

Moving on, Negligence is the failure to observe for the protection of

the interests of another person that degree of care, precaution, and
vigilance which the circumstances justly demand, whereby such other
person suffers injury.

Furthermore, Under Art. 1173 of the Civil Code, Negligence is the

omission of that diligence which is required by the nature of the
obligation and corresponds with the circumstances of the person, of
the time and of the place.

Such acts are liable under Art. 2176 of the Civil Code which states
that:

“Whoever by act or omission causes damage to another, there being

fault or negligence, is obliged to for the damages done. Such fault or
negligence, if there was no pre-existing contractual relation between

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the parties, is called quasi-delict and is governed by the provisions of
this chapter”

It has been further explained in the case of Romulo Abrogar v

COSMOS, which also mentions a case entitled Picart v Smith,

The test to determine the existence of negligence in a particular case

may be stated as follows: 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. The law here in effect adopts the
standard supposed to be supplied by the imaginary conduct of the
discreet paterfamilias of the Roman Law. The existence o negligence
in a given case is not determined by reference to the personal
judgment of the actor in the situation before him. The law considers
what would be reckless, blameworthy, or negligent in the man of
ordinary intelligence and prudence and determines liability by that.

The question as to what would constitute the conduct of a prudent

man in a given situation must of course be always determined in the
light of the human experience and in view of the facts involved in the
particular case. Abstract speculation cannot here be of much value
but this much can be profitably said: Reasonable men govern their
conduct by the circumstances which are before them or known to
them. They are not, and are not supposed to be, omniscient of the
future. Hence they can be expected to take care only when there is
something before them to suggest or warn of danger. Could a
prudent man, in the case under consideration, foresee harm as a
result of the course actually pursued? If so, it was the duty of the
actor to take precautions to guard against harm. Reasonable
foresight of harm, followed by the ignoring of the suggestion born of
this prevision, is always necessary before negligence can be held to

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exist. Stated in these terms, the proper criterion for determining the
existence of negligence in a given case is this: Conduct is said to be
negligent when a prudent man in the position of the tortfeasor would
have foreseen that an effect harmful to another was sufficiently
probable to warrant his foregoing the conduct or guarding against its
consequences.

It is to be noted that a person, for him to be negligent, commits an

omission of that diligence required which causes injury or harm to
another. Here, when Mary Ann handed her son to Mr. Tyke, who at
the time was wearing a mascot, knows that he must observe the
utmost diligence required since the son of the spouses was only
eighteen months old. A prudent man would know that when a person
was given a duty to handle a child, they must observe the proper care
required since children, especially infants, can easily get injured by
any force that comes in contact with their bodies and might cause
severe damages that could lead to their death. Furthermore, Mr. Tyke
was wearing a mascot and he should clearly know that his purpose
was to entertain the kids and thereafter take pictures of him for their
memories. To add, he should have known that Mary Ann will let go of
her child and entrust him in handling the child since she will be the
one taking the pictures. None of the acts done by Mr. Tyke qualifies
under the act of a prudent man for him to be relieved from his liability.
Hence, Mr. Tyke is negligent, and he should be liable for damages.

The company contributed to the negligent act of Mr. Tyke since they
are the organizers of the event and they have the duty to oversee the
dangers that might come across in every props that they will be
using. As the Court stated in Corliss v The Manila Railroad
Company, where the danger is great, a high degree of care is
necessary, and the failure to observe it is a want of ordinary care
under the circumstances. Here, the mascot that Mr. Tyke used was a

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winged mascot wherein it would be hard for him to move due to the
limited movements he can perform. The company should have
overlooked that flaw in the preparation which caused the injury of Ed
Latonio. Since none of the diligence required was sufficiently
performed, the company is also negligent and will be liable for the
damages that was incurred by the family.

To conclude, the circumstances herein mentioned did not satisfy the

test to prove that one is not negligent on their acts. Due diligence in
selecting the props and handling the child would have not caused this
kind of accident which nearly led to the death of their son, Ed Latonio.
With all these in mind, Mr. Tyke Philip, McGeorge Food Industries
Inc., and Cebu Golden Foods Industries, Inc., should be collectively
held liable for negligence.

B. Negligence of Tyke Philip is the proximate cause Ed

Christian’s fall

We submit our second argument as it is related to the first. It is

already settled that the plaintiff did not exercise due diligence in
handling the victim infant, Ed Christian, when he was entrusted to
carry the infant during the photo session which then lead to his
untimely fall. We further aver that the negligence of Tyke Philip
Lomibao is the proximate cause Ed Christian’s fall.

Proximate cause (Bataclan vs Medina, 102 Phil. 181, 186) is that

cause, which, in natural and continuous sequence, unbroken, by any
efficient intervening cause, produces the injury, and without which the
result would not have occurred.

It further added that it must exhibit a cause-effect relationship, being

the act/cause of the accused party and the resulting injuries incurred

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by the victim. As stated in the case of Vda. de Bataclan, et al. v.
Medina, that “'that cause, which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury and
without which the result would not have occurred.' And more
comprehensively, 'the proximate legal cause is that acting first and
producing the injury, either immediately or by setting other events in
motion, all constituting a natural and continuous chain of events, each
having a close causal connection with its immediate predecessor, the
final event in the chain immediately effecting the injury as a natural
and probable result of the cause which first acted, under such
circumstances that the person responsible for the first event should,
as an ordinarily prudent and intelligent person, have reasonable
ground to expect at the moment of his act or default that an injury to
some person might probably result therefrom."
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In the current case, it is clear that there exist a significant cause-

effect relationship between the negligent act of the accused Tyke
Philip Lomibao and the untimely fall of the victim Ed Christian
Latonio. The accused should have not agreed to hold the child being
aware that he is in a costume that limits the movements of his
proximities including his arms that would tightly grasp and prevent the
child from falling. However, despite this fact, he did not refuse nor call
out the mother’s attention when he noticed that the child was already
in his ward. This gruesome negligence on his part caused the
untimely fall of the child when it could have been prevented if he only
refused to carry the child in his arms knowing that he is in a costume
or have called Mary Ann Lomibao’s attention to get her child.

Assuming arguendo that it is the mother’s negligence, in putting her

child in the accused’s care while taking a photo session, that harmed

1 Bataclan vs Medina, 102 Phil. 181, 186

2 Abrogar vs Cosmos Bottling Company Gr No. 164749

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the child, it cannot be considered as the proximate cause. There was
an intervening cause in the sequence of events.

An intervening cause (Abrogar vs Cosmos Bottling Company Gr

No. 164749), to be considered efficient, must be "one not produced
by a wrongful act or omission, but independent of it, and adequate to
bring the injurious results. Any cause intervening between the first
wrongful cause and the final injury which might reasonably have been
foreseen or anticipated by the original wrongdoer is not such an
efficient intervening cause as will relieve the original wrong of its
character as the proximate cause of the final injury." (Abrogar vs
Cosmos Bottling Company Gr No. 164749)

The injury incurred by the victim arising from the untimely fall on the
route was an event known to and foreseeable by the accused, Tyke
Philip Lomibao, which could then have been avoided if only he had
acted with due diligence by refusing to carry the child, and if only he
called the mother’s attention out to get the child from his care since
his costume is preventing him from properly holding the child and had
enforced and adopted more efficient care in handling the situation.

In fine, it was the duty of the accused, Tyke Philip Lomibao to guard
the safety of the victim Ed Christian Latonio against the foreseen risk,
but it failed to do so. Therefore, we move for his conviction.

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 IV. P R A Y E R

WHEREFORE, premises considered, the plaintiffs respectfully pray to

the honorable court that judgment be rendered in their favor as
follows:

1. Judgment be rendered that the negligence of Tyke Philip Lomibao

is the proximate cause Ed Christian’s fall.

2. Judgment be rendered holding Mr. Tyke Philip, McGeorge Food

Industries Inc., and Cebu Golden Foods Industries, Inc., collectively
liable for negligence pursuant to Article 2180 of the New Civil Code
inasmuch as defendant Cebu Golden Foods, Inc. was the employer
of defendant Tyke Philip Lomibao.

3. Ordering the defendants Mr. Tyke Philip, McGeorge Food

Industries Inc., and Cebu Golden Foods Industries, Inc to pay the
plaintiff the following:

a. ₱900,000.00 as Moral Damages;

b. ₱50,000.00 as Exemplary Damages, and
c. ₱300,000.00 as Attorney's fees and to pay cost of suit.
Some other relief and remedies as may be deemed just and equitable
under the premises are likewise prayed for

Cebu City, 1st of October 2000

AGKA LAW OFFICE

Counsel of the Plaintiff
P. Del Rosario Cebu
City, Philippines, 6000