JARCO MARKETING CORP., et.al., Petitioners vs.

CA, AGUILAR and AGUILAR, Respondents

G.R. NO. 129792 | December 21, 1999

Justice Davide, Jr.

Topic: Exempting Circumstances; Negligence and Minority (Article 12)

FACTS:

On May 9, 1983, Criselda and her 6 years old daughter Zhieneth were on the 2nd
floor of Syvel’s Department Store. Criselda was signing her credit card slip when she
felt a sudden gust of wind and heard a loud thud. She looked behind her and beheld
her daughter Zhieneth on the floor, her body pinned by the bulk of the store’s gift-
wrapping counter/structure. Zhieneth was crying and screaming for help. She was
then rushed to the Hospital and was operated on. But the next day she lost her
speech and later, after 14 days, died.

Criselda demanded reimbursement for hospitalization, medical bills and funeral

expenses but Jarco Marketing refused to pay to which the aggrieved family filed a
complaint against Jarco. Jarco denied any liability for the injuries and death as they
claimed that Criselda was negligent in exercising care and diligence over her
daughter allowing her to freely roam the store filled with glassware and appliances.
Zhieneth too, was guilty of contributory negligence since she climbed the counter,
triggering its eventual collapse on her. With that, the trial court dismissed the
complaint.

Respondents appealed to the CA and raising the defense that a child below 9 years
old is incapable of contributory negligence and even if she did it was impossible of
her to propped herself on the counter as she had a small frame and that a testimony
of Gonzales a former store employee who accompanied her to the hospital heard
that when she was asked by the doctor what she did she said nothing and did not
come near said counter and it just fell on her to which said testimony received as res
gestae. The CA ruled in favor of Criselda. Hence the current petition for review on
Certiorari.

ISSUE/S:

1. Whether or not the death of Zhieneth is accidental or attributable to

negligence;
2. Whether or not such is attributable to Jarco Marketing or Criselda and
Zhieneth.

RULING:

1. The Court ruled that the tragedy befell Zhieneth could only be attributed to
negligence. An accident is fortuitous circumstance, event or happening; an
event happening without any human agency, or if happening wholly or

Case Digest
 partly through human agency, an event which under the circumstances is
unusual or unexpected by the person to whom it happens, while Negligence
is the failure to observe, for the protection of the interest of another person,
that degree of care, precaution and vigilance which the circumstances justly
demand, whereby such other person suffers injury.

The test in determining the existence of negligence is enunciated in the

landmark case of Picart vs. Smith, Did the defendant in doing the alleged
negligent act use that reasonable care and auction which an ordinarily
prudent person would have used in the same situation? If not, then he is
guilty of negligence.

2. The Court ruled that it was the negligence of Jarco Marketing. Under the
circumstances, it is unthinkable for a child of such tender age and in extreme
pain, to have lied to a doctor whom she trusted with her life. The Court
accord credence to Gonzales’ testimony, i.e., Zhieneth performed no act that
facilitated her tragic death. Sadly, petitioners did, through their negligence or
omission to secure or make stable the counter’s base. Another former
employee corroborates the testimony of Gonzales. Jarco marketing store
supervisor was informed of the danger imposed by the unstable counter. Yet,
neither initiated any concrete action to remedy the situation nor ensure the
safety of the store’s employees and patrons as a reasonable and ordinary
prudent man would have done. Thus, petitioner failed to discharge the due
diligence required of a good father of a family.

Negligence cannot be attributed to Zhieneth as the court applied the

conclusive presumption that favors children below nine years old in that they
are incapable of contributory negligence. It also absolved Criselda of any
negligence, finding nothing wrong or out of the ordinary in momentarily
allowing ZHIENETH to walk while she signed the document at the nearby
counter. Such letting go of her hand was reasonable and when she was
pinned down she was a foot away from her mother and the said counter was
only 4 meters away from Criselda, Zhieneth did not loiter and was near her
mother. It is deemed that the one liable for the negligence is Jarco Marketing
and the store supervisors for failing to properly set up precautions to the said
counter.

PRINCIPLES/DOCTRINE:

“Negligence,” Explained.—Negligence 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. Negligence is “the failure to observe, for the
protection of the interest of another person, that degree of care, precaution and
vigilance which the circumstances justly demand, whereby such other person suffers
injury.”

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Case Digest