To: Spouses Ed Dante and Mary Ann Latonio

From: Group 1

Date: March 15, 2018

Re: Damages - Cause of Action against Mcgeorge Food industries

Inc., Cebu Golden Foods Industries Inc., and Tyke Philip Lomibao:
liable for acts of negligence causing the fall of baby Ed Christian
Latonio.

You have asked us to prepare a legal memorandum addressing

the problem of our client, Spouses Ed Dante and Mary Ann Latonio,
who are pursuing a civil action against Mcgeorge Food Industries
and co., liable for acts of negligence causing the fall of baby Ed
Christian Latonio.

Key Facts:

You and your wife, together with your eight-month-old child,

Ed Christian, went to a birthday party at the McDonald’s Restaurant,
Ayala Center, Cebu City. During the party and as part of the birthday
package, McDonald’s presented two mascots – “Birdie” and
“Grimace” – to entertain and dance for the guests. After the mascots
danced, guests had their pictures taken with them. Intending to have
your child’s photo taken with the mascots, your wife Mrs. Latonio
placed Ed Christian on a chair in front of the mascot “Birdie.” The
mascot positioned itself behind the child and extnded its “wings” to
give a good pose for the camera.

As photos were about to be taken, your wife, Mary Ann

released her hold of Ed Christian. Seconds later, your child fell head
first from the chair onto the floor. Several guests attended to Ed
Christian. Meanwhile, the employees of Cebu Golden Food assisted
your baby Ed in giving first aid treatment. You and your wife
together with your baby nevertheless, remained and continued with
the party and left only after the party was over.

As a consequence of that incident your doctor advised to get an

x-ray examination on Ed Christian. McDonald’s reimbursed Mary An
for the said expenses and further offered to pay for the CT scan to be
conducted. Later on you you sent a letter to McGeorge demanding
for compensation in the amount of Fifteen Million Pesos which
remained unheeded.

Issue/s:

1. Whether or not the mother is guilty of negligence when she left

her child in the hands of Lomibao, who was wearing a mascot
costume, which was followed by the child of the spouses falling
head first to the floor.
2. Whether or not McDonald’s is guilty of negligence under Arts.
2176 and 2180 of the Civil Code when the child of the spouses
fell head first from the chair to the floor.

Brief Answers:

1. No, the mother was not negligent in attending her child, the
proximate cause was due to the respondent not properly
holding the child.
 2. Yes, the respondent is guilty of negligence for not exercising
proper supervision of their employees.
Discussion

No negligence on the part of the mother

Negligence is defined as the failure to observe for the

protection of the interests of another person that degree of care,
precaution, and vigilance which the circumstances justly demand,
whereby such other person suffers injury.1

As stated in the facts, the mother only momentarily released the

child to allow the taking of the photograph. The time and distance
between the mother and child were not that significant that would
connote a form of abandonment by the mother. She would have been
merely a few feet away from her child before which she carefully
helped her child to sit upright in the chair for the purpose of the
photo-op.

As illustrated in the case of Jarco Marketing Corp. v. Court of

Appeals2, where the child named Zhieneth was toppled over by the
gift-wrapping counter, whose shape was that of an inverted “L.”
During the incident, her mother, Criselda, was paying the cashier
when Zenith took off from her hold and went to the gift-wrapping
counter. Jarco Marketing reiterated that the resulting injury should
not be attributed to them but to the negligence of the mother.
However, the Supreme Court ruled against Jarco Marketing, ruling
as to wit:

1
Corliss v. Manila Railroad Co., G.R. No. L-21291, March 28, 1969.
2
G.R. No. 129792, December 21, 1999
 CRISELDA too, should be absolved from any contributory
negligence. Initially, ZHIENETH held on to CRISELDA's waist,
later to the latter's hand. CRISELDA momentarily released the
child's hand from her clutch when she signed her credit card
slip. At this precise moment, it was reasonable and usual for
CRISELDA to let go of her child. Further, at the time
ZHIENETH was pinned down by the counter, she was just a
foot away from her mother; and the gift-wrapping counter was
just four meters away from CRISELDA. The time and distance
were both significant. (emphasis supplied)

Similarly, in the recent case of Taggart v. Heuchert3, it was

reiterated that:

An error of judgment standing alone does not prove negligence

if the parent’s actions are those a reasonably careful parent
might have taken, viewed by the standard of care generally
accepted in the community. The standard of care is not one of
perfection. It does not require a parent to take every possible
step to ensure the safety of the child. It includes both an
objective and subjective aspect. The objective aspect requires
determination of the community standard at the time generally
expected of a reasonably prudent parent. The subjective aspect
places the reasonably prudent parent in circumstances identical
to those [the parent] faced at the time, and knowing only what
[they] believed and understood. (emphasis supplied)

3
Supreme Court of British Columbia, 2013 BSC 1248, July 12, 2013.
 In the present case, we cannot be impressed that the mother did
not exercise due diligence when she let go of her hold of the child. As
it is beyond reason for a mother to let go of her child without
ensuring the child’s safety.

Clearly, the mother herein would have not foregone of her hold
if she was not sure that her child was safely secured by the mascot.
Similar to the case of Jarco Marketing v. Court of Appeals , at that
moment it was reasonable and usual for the mother, the petitioner
herein, to let go of her child as they were about to take a picture. The
time and distance of the mother from her child in this case is also
significant. As she did not let go until she was sure that the child was
secured and not a second before the picture was supposedly to be
taken.

As emphasized in Taggart v. Heuchert4, an error of judgment

alone does not prove negligence when the parent has taken
reasonable actions. Herein petitioner clearly made actions indicating
that she did try to secure the safety of her child. It was only once she
was sure, in her own judgment that her child was secured in the hold
of the mascot that she did let go of the child.

Even assuming arguendo that the mother, herein petitioner,

was neglectful, it cannot be considered the proximate cause of the
injury sustained by the child. As much, it can merely be considered
as contributory. The respondent corporations are still liable for
damages as Art. 2170 of the New Civil Code provides:

Art. 2179. When the plaintiff’s own negligence was the

4
Ibid.
 immediate and proximate cause of his injury, he cannot recover
damages. But if his negligence was only contributory, the
immediate and proximate cause of the injury being the
defendant’s lack of due care, the plaintiff may recover damages,
but the courts shall mitigate the damages to be awarded.
(emphasis supplied)

In the case, Mary Ann exercised precaution and due care when
she tapped the mascot on the side and informed the same that she’ll
take a picture. Although she did not perceive any reply because
Lomibao was clearly restrained to respond due to the costume, yet,
the mascot faced her to indicate that he had noticed Mary Ann. 5

Further, Mary Ann felt the hands of Lomibao inside the

costume and ascertained that it was in contact with the child before
she let go.6 Consequently, the proximate cause of the injury was the
failure of the mascot to reject the request of the mother to hold the
child and/or to properly take hold of the child.

As this case is founded upon the negligence of herein employer

company, the rule governing quasi-delicts is the prevailing law of the
case. As such Art. 2176 of the New Civil Code provides that:

ART. 2176. Whoever by act or omission causes damage to

another, there being fault or negligence, is obliged to pay for
the damage done. Such fault or negligence, if there was no pre-
existing contractual relation between the parties, is called quasi-
delict and is governed by the provisions of this chapter.

5
TSN, October 23, 2007, p. 21.
6
Id. at 21-22
 (emphasis supplied)

The aforementioned provision does not only pertain to

personal liability of the person who was negligent but also includes
persons responsible for him. Art. 2180 of the New Civil Code
supplies:

Art. 2180. The obligation imposed by article 2176 is demandable

not only for one’s own acts or omissions but also for those of
persons for whom one is responsible.

XXX

Employers shall be liable for the damages caused by their

employees xxx acting within the scope of their assigned tasks,
even though the former are not engaged in any business or
industry.

Clearly, the failure of the employee herein to take due care of

the child Latonio clearly constitutes that of a quasi-delict, as there
was no existing contractual relations between the parties and the act
or omission of the private respondent had caused injury over the
child.

Consequently, the company herein, being the employers of the

mascot, is also liable for the damages caused by their employee, who
was then in the performance of his duty, as pursuant to Art. 2180 of
the New Civil Code.

The employer company acceded that there was indeed

negligence during the incident, however, they aver that the
negligence was attributable to the mother of the child and not of their
employee.

We find this claim untenable. In human experience and within

the ambits of sound reason, “a diligent mother would naturally
ensure first and foremost the safety of her child before releasing her
hold on him.”7

The fate that befell the child cannot be considered a form of

contributory negligence from the mother of the child. An argument
that the negligence of the mother of not taking proper care of the
child and not overseeing the child, at that time, cannot be tenable.

Negligence of the part of McGeorge Food Industries

As discussed in the first issue, we find that the mother was not
negligent in attending her child. It was in the part of respondent that
there was a negligent act.

When an injury is caused by the negligence of an employee, a

legal presumption instantly arises that the employer was negligent in
either or both in the selection or supervision of their employees. The
said presumption may be rebutted only by a clear showing on the
part of the employer that he had exercised the diligence of a good
father of a family in the selection and supervision of his employee. If
the employer successfully overcomes the legal presumption of
negligence, he is relieved of liability. In other words, the burden of
proof is on the employer.

7
Sps. Latonio vs. Mcgeorge Food Inc., G.R. 206184. December 6, 2017
 The question is: how does an employer prove that he had
indeed exercised the diligence of a good father of a family in the
selection and supervision of his employee? The case of Metro Manila
Transit Corporation vs. Court of Appeals8 states that:

In the selection of prospective employees, employers are

required to examine them as to their qualifications, experience,
and service records. On the other hand, with respect to the
supervision of employees, employers should formulate
standard operating procedures, monitor their
implementation, and impose disciplinary measures for
breaches thereof.

In the present case, there might not have been a manifest

negligence in the selection of the employees, but there was indeed
negligence on the supervision of the employer.

Having the mascot during the birthday party was without fault,
however, it in the performance of Lomibao’s work that exists the
fault that led to the unfortunate incident that happened to the
petitioner’s child.

The mascot being used mostly during celebrations which is

commonly attended by children; and judging from the circumstances
that will happen during such celebrations, we can observe children
running around enjoying the festive moment of the celebration. Thus,
the respondent company should provide stricter policies and

8
Metro Manila Transit Corporation vs. Court of Appeals, 298 SCRA 495 [1998]
guidelines for their employees and especially to those using the
mascot costume.

It is very negligent on the part of the respondent when they

know that the use of a mascot diminishes the fundamental senses of
the one who is inside, and as such, it is of paramount importance that
the safety of the young ones during such celebrations, are of utmost
priority. Diminishing the sense of sight and hearing during these
instances would be very risky, not just for the people that can get hit
by the mascot but also to the one who is inside the mascot costume.
The respondent company should take more safety precautions, in
these kind of situations.

First, the test in determining the existence of negligence is

enunciated in the landmark case of Picart v. Smith.9 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.

On the argument that the proximate cause of the child’s fall

could be attributed to the mothers' negligence in allowing a child of
tender age to be under the responsibility of a stranger, who was at
that time, restricted in his movement because of the weight and form
of his costume as a mascot.

We could readily ascertain, because of the aforementioned

negligence on the part of the employer company for not exercising
the proper diligence required from them in providing their
employees to wear costumes that should not render an outright
9
37 Phil. 809 [1918]
restriction to the use of their physical abilities, such as the use of their
hands. The costume also hinders the wearer, the use of his sense of
sight and hearing. The costume, when examined, provides the wearer
no holes to see and no holes to hear from. The inability of using his
natural senses because of wearing the costume is tantamount to a
deprivation of the use of his primary senses.

So in reiterating the test, how could the employee (mascot)

readily exercise the reasonable care and caution required from him if
he cannot ordinarily make use of his physical abilities and sensory
perceptions because of the constraint coming from the use of the
costume?

To reiterate, the said presumption may be rebutted only by a

clear showing on the part of the employer that he had exercised the
diligence of a good father of a family in the selection and supervision
of his employee. If the employer successfully overcomes the legal
presumption of negligence, he is relieved of liability. In other words,
the burden of proof is on the employer.

In Our Lady of Lourdes Hospital v. Spouses Capanzana10, the court

said:

However, to prove due diligence in the supervision of

employees, it is not enough for an employer such as petitioner to
emptily invoke the existence of such a formulation, there must be
proof of diligence in the actual supervision of the employees' work.

10
Our Lady of Lourdes Hospital v. Spouses Capanzana, G.R. No. 189218, March 22, 2017
 In the present case, the respondent company has the burden of
proof on showing that there was due diligence on the supervision of
their employees. We cannot impute negligence on the mother
because of the lack of diligence made by the respondent company as
there was no proof that they exercised the proper diligence during
the time of the incident.

Conclusion/Recommendations:

1. Mary Ann Latonio is not negligent nor her acts were the
proximate cause of the incident. She exercised due diligence
before she let go of her child by tapping the mascot and
ascertained the hand of the mascot was in contact with her
child.
2. The employer company was guilty of negligence under Arts.
2176 and 2180 of the Civil Code by not supervising properly
their employees; by using a mascot that diminishes the
fundamental senses of the one inside, which may result to
incidents like the one that happened in the present case.