Jarco v CA

Mode of Appeal: Petition for review on certiorari under Rule 45, reversal of decision rendered by CA

Facts:

Private respondent Criselda and her 6 year-old daughter Zhieneth were at the Department Store in
Makati City. While Criselda was signing her credit card slip at the counter, she heard a loud thud and
looked behind her seeing her daughter pinned by the bulk of the store's gift-wrapping
counter/structure.The child was immediately brought to the hospital. However after 14 days the
child died and the cause of death was attributed to the injuries she sustained.

After the burial, private respondents filed a complaint for damages against the petitioner

Petitioner argue that Criselda was negligent in exercising care and diligence over her daughter by
allowing her to freely roam around in a store filled with glassware, and Zhieneth was guilty of
contributory negligence since she climbed the counter, triggering its eventual collapse on her.

Trial court rendered a decision in favour of the petitioner, finding the proximate cause of the fall of
the counter top on Zhieneth was her act of clinging to it.

On appeal at CA, the court favoured the private respondents contention. It found that the
petitioners were negligent in maintaining a structure of the counter, the counter was defective,
unstable and dangerous. Petitioner were ordered to pay damages unto the private respondents.

Petitioner seeks the reversal of the court of appeals decision and the reinstatement of the
judgement of the trial court. Hence this appeal.

Issue:

Whether or not the child is capable of contributory negligence

Held:

No, the court applied the conclusive presumption that favors children below nine (9) years old in
that they are incapable of contributory negligence. A person under nine years of age is conclusively
presumed to have acted without discernment, and is, on that account, exempt from criminal liability.
The same presumption and a like exemption from criminal liability obtains in a case of a person over
nine and under fifteen years of age, unless it is shown that he has acted with discernment.

Since negligence may be a felony and a quasi-delict and required discernment as a condition of
liability, either criminal or civil, a child under nine years of age is, by analogy, conclusively presumed
to be incapable of negligence; and that the presumption of lack of discernment

The rule, therefore, is that a child under nine years of age must be conclusively presumed incapable
of contributory negligence as a matter of law.

Even if we attribute contributory negligence to ZHIENETH and assume that she climbed over the
counter, no injury should have occurred if we accept petitioners' theory that the counter was stable
and sturdy. The physical analysis of the counter by both the trial court and Court of Appeals and a
scrutiny of the evidence on record reveal that the counter was not durable.