REPUBLIC OF THE PHILIPPINES

SEVENTH JUDICIAL REGION

REGIONAL TRIAL COURT
BRANCH 19, CEBU CITY

Ed Dante Latonio and Mary

Ann Latonio,
Plaintiff,

-versus- Civil Case No. 01-12345-CV

For: Damage
McGeorge Food Industries,
Incorporated and Tyke Philip
Lomibao,
Respondent.

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

JUDICIAL AFFIDAVIT
OF WITNESS TYKE PHILIP LOMIBAO,
EMPLOYEE OF MCGEORGE FOOD INDUSTRIES, INC.

This Judicial Affidavit of Tyke Philip Lomibao is executed

to serve as his direct testimony in the instant case.

I, Tyke Philip Lomibao, of legal age, single, and living at 123

Magellan St., Lapu Lapu City, witness in this case, state under oath
as follows:

PRELIMINARY STATEMENT

The person examining me is Atty. Hetty V. Spaghetti with

office address at 3201 Juan Luna St, Cebu City. The examination is
being held at the same address. I am answering her questions fully
conscious that I do so under oath and may face criminal liability for
false testimony and perjury.

PURPOSE: This affidavit/testimony of witness Tyke Philip

Lomibao is being offered to prove that he was the one working as
the Birdie mascot on the day of the incident; that his senses are
diminished while wearing the costume; that due to his costume, he
could not have heard or responded to Mary Ann Latonio; and that
there was no negligence on his part regarding the alleged incident
and that he exercised due diligence in performing his job.

1. Q: Please state your name and other personal

circumstances for the record.

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 A: I am Tyke Philip Lomibao, a Filipino and of legal age, single,
and I live at 123 Magellan St., Lapu Lapu City.

2. Q: Do you know why you are here?

A: Yes. I am here to testify on what happened on September
17, 2000 in order to have it executed as a sworn statement in a
Judicial Affidavit.

3. Q: What were you doing on September 17, 2000?

A: I was working as a Birdie mascot for a birthday party held
that day.

4. Q: What do you do as a Birdie mascot?

A: I dance and play games to entertain the guests and pose for
pictures for the guests.

5. Q: What do you wear as a mascot for the party?

A: I wear a standard issued Birdie mascot which is a thick
leather costume issued for the crew for parties.

6. Q: Can you see in this costume?

A: Yes, but the vision is limited because there are only small
peepholes near the mouth. I can see a bit of the front but I
cannot see the sides and the bottom part clearly because the
view is blocked by the costume itself.

7. Q: Can you use your hands in this costume?

A: No, I cannot use my hands because the costume only has
thick wings that have no grip instead of hands.

8. Q: Is it obvious that you cannot use your hands in the

costume?
A: Yes, because it can easily be seen that the wings are
somewhat flat and my movements throughout the party are
limited.

9. Q: How did you play Pass-The-Ball with no hands?

A: For the games, the costume has Velcro on the wings so that
we can attach the ball.

10. Q: Can you move freely in the costume?

A: No. The costume is heavy and because of that, I can only
move slowly and cannot stretch my arms and legs as much.

11. Q: Can you hear in the costume?

A: Not that much. The sounds are slightly muffled because the
costume is so thick.

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12. Q: Can you speak in the costume?
A: No, because the costume is too thick.

13. Q: Can you feel things in the costume?

A: No. The costume is too thick to feel anything.

14. Q: Did you take pictures with the children in this party?
A: Yes, I did.

15. Q: How do you take pictures with the children in the party?
A: Similar to every birthday party with a mascot in this
restaurant, what happens is that the mascot will stand there and
do various poses behind a chair where the children usually sit. I
just do a series of poses because I do not know if there is a
child in front of me already since I cannot see much in the
costume and the chair in front is too short for me to check if
there is a child already.

16. Q: Did you take a picture with Ed Christian Latonio?

A: Yes, I did.

17. Q: Who asked to take a picture with you?

A: I am not sure because I cannot hear or see much in the
costume.

18. Q: Did the mother ask to take a picture with you?

A: I do not know because I cannot hear or see anyone at the
sides while I am inside the costume.

19. Q: How did you know that a picture should be taken?

A: I am actually not sure if someone is already taking a picture,
so I just act as if every second, a picture will be taken since it is
difficult to know if there is already a child in front of me so I just
constantly pose at the back.

20. Q: Can people see your head while you are wearing the
costume?
A: No, they cannot.

21. Q: What happened while taking the picture?

A: I was posing as usual behind doing random poses. As I was
spreading my wings as the next pose, the child fell and people
were panicking and the crew were running to the area where I
was.

22. Q: Can you describe the position of Ed Christian before he

fell?

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 A: He was placed on top of the chair which was positioned in
front of me.

23. Q: How did you pose for the camera?

A: I put my arms to the side to make it look like Birdie’s wings
were spread.

24. Q: Is that pose what you commonly do for birthday

parties?
A: Yes, this is one of the common poses that are used for
photos in birthday parties.

25. Q: What happened after Ed Christian fell?

A: There was a commotion and the staff got a cold compress
and took care of the child.

26. Q: What was Ed Christian doing after he fell?

A: He was treated and then he continued joining the party and lined
up for the loot bags at the end.

27. Q: When did the Latonio family leave?

A: They only left after the party was finished.

28. Q: Did the family say anything to you before they left the
restaurant?
A: No, they did not approach me or say anything.

29. Q: Did anyone coach you or make any suggestions to you

in answering these questions?
A: No, all my answers are based on what I personally know.

30. Q: Will you swear under oath that all your answers herein
are based on your own personal knowledge and belief and
will you sign this affidavit to attest to the truthfulness of all
your answers here?
A: Yes, I swear.

IN WITNESS WHEREOF, I have hereunto set my hand this

30th day of April 2001.

TYKE PHILIP LOMIBAO

Affiant

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 SUBSCRIBED AND SWORN TO before me this 30th day of
April 2001 in Cebu City. I hereby certify that I have personally
examined the affiant and I am fully satisfied that he fully understood
the contents of the foregoing Complaint-Affidavit.

I certify that on this date, I personally identified that affiant

through competent evidence of his identity, Tax Identification Number:
687-118-054, Date of Issue: April 16, 1998, and I certify that the
affiant is the same person described as affiant in the foregoing
Complaint-Affidavit.

Doc. No. 126

Page No. 56
Book No. IV
Series of 2001.

HAMBURGLAR V. STEAK
Commission No. M-72
Notary Public for Cebu City
Until Dec. 31, 2001
3203 Juan Luna St, Cebu City
Roll No. 12345
PTR No. 12345/ 4 Jan 2001/ Cebu City

SWORN ATTESTATION

I, HETTY SPAGHETTI, after having been sworn to in

accordance with the law do hereby depose and state:

1. That I have faithfully recorded the questions I asked and the

corresponding answers of the witness;

2. That I have not, nor any other person present or assisting,

coached the witness regarding his answers; and

3. That I fully understand that any false attestation shall subject

me to disciplinary action, including disbarment.

IN WITNESS WHEREOF, I have hereunto set my hand this

30th day of April 2001.

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 ATTY. HETTY V. SPAGHETTI
Roll of Attorneys No. 54321
IBP Lifetime No. LRN-54321/ 03 January 1998/ Cebu City
PTR No. 7654321/ 03 January 2001/ Cebu City
MCLE Compliance No. V-7654321/ 15 March 2000

SUBSCRIBED AND SWORN TO before me this 30th day of

April 2001 in San Jose Del Monte, Bulacan, Philippines.

Doc. No. 127

Page No. 56
Book No. IV
Series of 2001.

HAMBURGLAR V. STEAK
Commission No. M-72
Notary Public for Cebu City
Until Dec. 31, 2001
3203 Juan Luna St, Cebu City
Roll No. 12345
PTR No. 12345/ 4 Jan 2001/ Cebu City

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