TOPIC: Special Cases – Children

JARCO MARKETING CORPORATION V. CA

21 December 1999

Facts:
 Petitioner Jarco is the owner Syvel’s Department Store in Makati. Petitioners Kong, Tiope, and Panelo
are the store’s branch manager, operations manager, and supervisors. Private respondents are the
parents of Zhieneth (Z) Aguilar.1
 (9 May 1983) Respondent Criselda was with Z at the 2nd floor of Syvel’s Department Store. AS she was
signing the credit card slip, she heard a loud thump and when she looked back, she saw Z pinned by the
bulk of the store’s gift-wrapping counter (L shaped counter). Z was screaming for help and Criselda was
quick to ask for assistance in lifting the counter.
 Z was rushed to Makati Med. The following day, she lost her speech and 14 days after the accident, she
died (shock, hemorrhage, ruptured stomach, hematoma, contusions, etc).
 Respondents demanded from petitioners reimbursement of hospitalization, medical bills, wake and
funeral expenses but petitioners refused to pay, prompting respondents to file a complaint for damages.
 Answer with counterclaim: No liability since it was the mother who was negligent in allowing her
daughter to roam around the store + the child was negligent in climbing the counter. Petitioners also
claim that the counter was made with sturdy wood and has not collapsed ever since it was made, 15
years ago. Jarco maintained that it exercised the diligence of a good father of the family in the selection,
supervision and control of its employees. Petitioners sought the dismissal of the complaint and sought
an award of moral and exemplary damages, contending that the complaint was malicious.
 Trial court dismissed the complaint – the counter was at the corner of the floor as a precautionary
measure and was not an attractive nuisance.
 CA reversed the decision and held that the petitioners were negligent in maintaining a structurally
dangerous counter. 2 employees had already complained about the structure prior to the accident.

Issues: WON Zhieneth’s death was attributable to petitioners’ negligence – YES

Ruling:
 Re: Accident v. Negligence - Accident and negligence are intrinsically contradictory; one cannot exist
with the other. Accident occurs when the person concerned is exercising ordinary care, which is not
caused by fault of any person and which could not have been prevented by any means suggested by
common prudence. Z’s death was not caused by accident but by negligence.
 The test in determining the existence of negligence is enunciated in the landmark case of Picart v.
Smith, thus: 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.
 Doctrine of Attractive Nuisance: One who maintains on his premises dangerous instrumentalities or
appliances of a character likely to attract children in play, and who fails to exercise ordinary care to
prevent children from playing therewith or resorting thereto, is liable to a child of tender years who is
injured thereby, even if the child is technically a trespasser in the premises. The principal reason for the
doctrine is that the condition or appliance in question although its danger is apparent to those of age, is
so enticing or alluring to children of tender years as to induce them to approach, get on or use it, and this
attractiveness is an implied invitation to such children.
 Re: Contributory Negligence : Children below nine (9) years old are conclusively presumed incapable of
contributory negligence. Z was 7 years old at the time of the accident. 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 or incapacity for negligence in
the case of a child over nine but under fifteen years of age is a rebuttable one, under our law.
 Re: Res Gestae – When she was being examined by her doctor, Z said that she did nothing when the
counter fell. This statement from the doctor is an exception to the hearsay rule.

1
What a name.