TORTS STANDARD OF CARE - CHILDREN

JARCO MARKETING CORPORATION vs. GR No. 129792

COURT OF APPEALS Date: December 21, 1999
Ponente: Davide, Jr., CJ.
JARCO MARKETING CORPORATION, LEONARDO KONG, HONORABLE COURT OF APPEALS,
JOSE TIOPE and ELISA PANELO, petitioners, CONRADO C. AGUILAR and CRISELDA R. AGUILAR,
respondents.
DOCTRINE

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.

Nature of the case: Petition for Review on Certiorari under Rule 45

FACTS
 Petitioner Jarco Marketing Corporation is the owner of Syvel's Department Store, Makati City. Petitioners
Leonardo Kong, Jose Tiope and Elisa Panelo are the store's branch manager, operations manager, and supervisor,
respectively. Private respondents are the parents of Zhieneth Aguilar (ZHIENETH).
 CRISELDA and ZHIENETH were at the 2nd floor of Syvel's Department Store, Makati City. CRISELDA was signing
her credit card slip at the payment and verification counter when she felt a sudden gust of wind and heard a loud
thud. She looked behind her. She then beheld her daughter ZHIENETH on the floor, her young body pinned by the
bulk of the store's gift-wrapping counter/structure. ZHIENETH was crying and screaming for help.
 ZHIENETH was quickly rushed to the Makati Medical Center where she was operated on. The next day ZHIENETH
lost her speech and thereafter communicated with CRISELDA by writing on a magic slate. The injuries she
sustained took their toil on her young body. She died fourteen (14) days after the accident or on, on thehospital
bed. She was six years old.
 After the burial of their daughter, private respondents demanded upon petitioners the reimbursement of the
hospitalization, medical bills and wake and funeral expenses which they had incurred. Petitioners refused to pay.
Consequently, private respondents filed a complaint for damages.
 JARCO’s ANSWER: petitioners denied any liability for the injuries and consequent death of ZHIENETH. They
claimed 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 appliances. ZHIENETH too, was guilty of contributory negligence
since she climbed the counter, triggering its eventual collapse on her.
 RTC: It ruled that the proximate cause of the fall of the counter on ZHIENETH was her act of clinging to it. It
believed petitioners' witnesses who testified that ZHIENETH clung to the counter, after which the structure and
the girl fell with the structure falling on top of her, pinning her stomach. The trial court reasoned that the counter
was situated at the end or corner of the 2nd floor as a precautionary measure hence, it could not be considered
as an attractive nuisance. Such was in existence for 15 years.
 RESPONDENT’s APPEAL: ZHIENETH should be entitled to the conclusive presumption that a child below 9 years
is incapable of contributory negligence. And even if ZHIENETH, at six (6) years old, was already capable of
contributory negligence, still it was physically impossible for her to have propped herself on the counter. She had
a small frame (four feet high and seventy pounds). GONZALES (one of the store’s former employees), who
accompanied Zhieneth when she was brought to the ER, belied Jarco’s theory that the child climbed the counter.
Gonzales claimed that when ZHIENETH was asked by the doctor what she did, ZHIENETH replied, "[N]othing, I did
not come near the counter and the counter just fell on me."
 CA: It found that petitioners were negligent in maintaining a structurally dangerous counter. The counter was
shaped like an inverted "L" with a top wider than the base. It was top heavy and the weight of the upper portion
was neither evenly distributed nor supported by its narrow base. Thus, the counter was defective, unstable and
dangerous; a downward pressure on the overhanging portion or a push from the front could cause the counter to
fall. Two former employees of petitioners had already previously brought to the attention of the management
the danger the counter could cause. But the latter ignored their concern. declared that ZHIENETH, who was
below seven (7) years old at the time of the incident, was absolutely incapable of negligence or other tort. It
reasoned that since a child under nine (9) years could not be held liable even for an intentional wrong, then the
six-year old ZHIENETH could not be made to account for a mere mischief or reckless act.
ISSUE/S
I. Whether the death of Zhieneth was accidental or attributable to negligence
II. In case of finding of negligence, whether the same was attributable to Jarco for maintaining a defective
counter or to Criselda (mom) and Zhieneth (child) for dailing to exercise reasonable care
RATIO
I. The tragedy which befell Zhieneth was no accident and that her death could only be attributable to
negligence.

We quote the testimony of Gerardo Gonzales who was at the scene of the incident and accompanied
CRISELDA and ZHIENETH to the hospital:
“Q While at the Makati Medical Center, did you hear or notice anything while the child was being treated?
A At the emergency room we were all surrounding the child. And when the
doctor asked the child "what did you do," the child said "nothing, I did not
come near the counter and the counter just fell on me."

It is axiomatic that matters relating to declarations of pain or suffering and statements made to a physician
are generally considered declarations and admissions. All that is required for their admissibility as part of the
res gestae is that they be made or uttered under the influence of a startling event before the declarant had
the time to think and concoct a falsehood as witnessed by the person who testified in court. Under the
circumstances thus described, it is unthinkable for ZHIENETH, a child of such tender age and in extreme
pain, to have lied to a doctor whom she trusted with her life.

II. Without a doubt, petitioners were personally informed of the danger posed by the unstable counter (many
staff told the supervisors many times that the counter needs to be nailed; it was only nailed after the
accident). 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, as
confronted by the situation petitioners miserably failed to discharge the due diligence required of a good
father of a family.

Anent the negligence ZHIENETH, we apply the conclusive presumption that favors children below nine (9)
years old in that they are incapable of contributory negligence.

In our jurisdiction, 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. 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. [Emphasis supplied]

RULING
WHEREFORE, in view of all the foregoing, the instant petition is DENIED and the challenged decision of the Court of
Appeals of 17 June 1996 in C.A. G.R. No. CV 37937 is hereby AFFIRMED.
NOTES:

 An accident pertains to an unforeseen event in which no fault or negligence attaches to the defendant. It is "a
fortuitous circumstance, event or happening; an event happening without any human agency, or if happening
wholly or partly through human agency, an event which under the circumstances is unusual or unexpected by the
person to whom it happens."
 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."
 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.
 Test in determining the existence of negligence: 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.
CONSTANTINO