Memo Civil v3

MEMORANDUM

31Civil Case No. 3702449Internette D. Explorer vs. Purple Backpack Primary School,

Prince E. Pal and Diego C. Liangx ================================================= x

Republic of the PhilippinesREGIONAL TRIAL COURTNational Capital Judicial Region

Branch 22, Makati CityINTER NETTE D. EXPLORER, Plaintiff, -versus- Civil Case No. 3702449 For: Damages

PURPLE BACKPACK PRIMARY SCHOOL, PRINCE E. PAL, DIEGO C. LIANG, Defendants.x ========================== x

MEMORANDUM

Defendants Purple Backpack Primary School (School), Prince E. Pal (Pal) and Diego C. Liang (Liang) , in compliance with this Honorable Courts oral directive dated October 10, 2015, respectfully submits this Memorandum:

STATEMENT OF THE CASEOn June 30, 2015, at around 2:03 PM, two (2) Grade 2 students of Purple Backpack Primary School, namely Dora D. Explorer and Boots N. Sonroa, were found unconscious at the bottom part of the adult-sized pool of the Swimmers World Pool Complex. The students were resuscitated by the lifeguards but only Boots N. Sonroa was revived. The supervising PE teacher and the lifeguard rushed Dora D. Explorer to the Makati Medical Center so she can receive proper medical treatment and be revived. However despite the efforts of the immediate actions of the school authorities in bringing Dora to the hospital and that of the doctors at Makati Medical Center, she was declared dead at 2:23 PM.

The mother of the deceased, herein plaintiff Internette D. Explorer, filed the action for damages. She claims the following:1. Actual damages in the amount of P345,000 for the funeral expenses incurred,

2. Damages for loss of earning capacity amounting to P20,100,000,

3. Damages due to death in the amount P500,000

4. Moral damages in the amount of P500,000, and

5. Attorneys fees and costs of the suit.

STATEMENT OF THE FACTSBased on the documentary and object evidence presented by the defendants, and testimony of Diego C. Liang and Prince E. Pal, the following facts were established:1. Mr. Diego C. Liang (Liang) is employed as a P.E. teacher of Purple Backpack Primary School who teaches swimming classes with Grade 2-Adventure. Dora D. Explorer belonged to the class of Grade 2-Adventure and one of the students of Liang in the swimming classes.

2. On Monday, June 29, 2015, Liang held a swimming class with the Grade 2 Adventure students at Swimmers World Pool Complex located near the school.

3. At around 9:00 A.M., Liang arrived at Swimmers World Pool Complex with two (2) co-supervising teachers, Mr. Swiper N. Fox Fox and Ms. Mapmap M. Maps Maps. They re-oriented themselves with the schedule for the day.

4. Thereafter, they checked the swimming facilities. There are two swimming pools, one is a kiddie pool and the other is an adult-sized pool and they are separated by a wall. On that day, the kiddie pool had a water level of three (3) feet as the school have instructed the maintenance person despite its maximum depth of four (4) feet. The adult-sized pool had small amount of water in it, around 1 foot only as it was under maintenance that day. There are three (3) lifeguards on duty, stationed around the swimming facilities.

5. The parents are required to be present while the swimming lessons of their children are ongoing, otherwise, the student will not be allowed to participate in class.

6. At 10:00 A.M. Dora D. Explorer arrived with her mother Internette D. Explorer.

7. Immediately, Liang ushered Dora and Internette to their seats. At around five minutes thereafter Internette rose from her seat to leave.

8. Liang immediately approached Internette and informed her that she cannot leave as it was strictly required that she be present during the swimming classes but Internette insisted that she had to leave.

9. Because of her insistence to leave, Liang told Internette that Dora cannot participate in practicing strokes in the pool on 2:00 P.M. to 3:00 P.M.

10. When asked for the reason why she is leaving and when she would be back, she replied BASTA, and that she does not know when shell be going back.

11. Internette D. Explorer immediately left the premises of the swimming facilities.

12. Liang approached Dora and told her that, since her mother left, she can no longer practice her strokes in the pool later that day at 2:00 P.M. and Dora replied OKAY PO..

13. Liang also told Dora that she can listen to the lectures, watch the teachers demonstrations, but she cannot enter and practice in the pool with her classmates which Dora also replied OKAY PO.

14. Dora was then asked if she understood what Liang said to her which Dora replied, YES PO, I UNDERSTAND.

15. Liang then told Dora to stay in her seat as the class was about to start.

16. The class started at exactly 10:30 A.M. There were mainly discussions regarding the swimming facilities, safety in the pool, and swimming strokes. At exactly 11:30 A.M., the class had their lunch.

17. Liang repeatedly called Ms. InterNette D. Explorer on her cellphone for five (5) times to ask her if she will be able to come back before the students practice their strokes but those calls were not answered. He even sent a text message asking her about the time she will be able to come back but she did not reply.

18. After lunch, the three (3) teachers, Liang, Fox and Maps continued with their lecture-discussion. They took turns in demonstrating the swimming strokes to the students. After that, at around 1:30 P.M., the students were asked to change into swimming attire. All throughout that time, Dora was seated on her seat while watching what was happening to the class. Liang constantly checked on Dora and all the students who were seated.

19. After the students changed into their swimming attire, they were reminded that that the swimming practice in the pool will be conducted by batches of five (5) students at a time. There were four (4) batches. Dora was included in batch two (2).

20. Liang and Maps goes into the pool and, teaches and supervises the students while they practice their strokes while Fox is supervising the students who are out of the pool. He also helps in guiding the students in and out of the pool.

21. Names of the students who belong to batch 1 were called one-by-one. When their names were called, they answered HERE! and approached Mr. Fox for him to give some last-minute reminders, and to check their gears such as head caps, goggles and inflatable arm floaters before entering the pool.

22. At around 1:55 PM, when Liang was calling on the 4th student in Batch 1, Mr. Fox approached him and told him that Dora was no longer on her seat and also another student Boots N. Boots belonging to the same batch was also not on his seat.

23. Thereafter, Liang instructed Fox to look for Dora and Boots together with one of the lifeguards at the facility.

24. Fox and one of the lifeguards returned to the pool and informed Liang that they cannot find DORA and BOOTS around the pool area, including the nearby changing rooms or comfort rooms, waiting area and the parking space.

25. At around 2:00 PM, Liang immediately stopped the swimming session of Batch 1 and called the names of those belonging to Batch 2 to check if Dora and Boots returned already. There was no reply.

26. Liang then immediately told the lifeguards to search for them in the whole area.

27. Liang then told his co-teacher Ms. Maps to inform Mr. Prince E. Pal of the situation.

28. Liang kept looking for the two missing students while his two co-teachers were reassuring the rest of the students.

29. At around 2:03 PM Lifeguard David Hassel-hoof found Dora and Boots at the bottom of the adult-sized pool.

30. Immediately after finding Dora and Boots, Lifeguard Hassel-hoof and his fellow lifeguard, Pam Ella Underson went down the adult-sized pool and immediately performed cardiopulmonary resuscitation (CPR).

31. Hassel-hoof administered CPR on Dora while Underson administered CPR on Boots.

32. When the lifeguards were administering CPR, Liang was with the students, parents and his co-teachers keeping the students and parents from panicking.

33. Liang immediately phoned Mrs. Explorer on her cellphone trying to contact her around eight (8) times but she was not answering his calls. Liang therefore sent her a text message informing her of the situation.

34. At around 2:05 P.M., Pam Ella Underson was able to resuscitate Boots.

35. At about the same time, Hassel-hoof was not yet able to resuscitate Dora. He, along with the other lifeguards, placed Dora on a stretcher which was boarded on the ambulance owned by Purple Backpack Primary School. The lifeguards and Liang all boarded the ambulance as they immediately rushed to Makati Medical Center.

36. While inside the ambulance, the lifeguards continued to administer CPR on Dora while Liang tried contacting Inter Nette for ten (10) times but to no avail so he sent a text message informing her that they were bringing Dora to Makati Medical Center.

37. At around 2:17 P.M., they arrived at the hospital. The lifeguards unloaded Dora from the ambulance. Doctors and nurses rushed to bring her inside the Emergency Room. They quickly checked her vital signs and tried to revive her. While that was happening, Liang called Inter Nette again. He was able to reach her finally. He told her that her child was in Makati Medical Center because of an accident that happened at Swimmers World. She quickly said that she was going to the hospital right away.

38. Liang received a call from Prince E. Pal, the schools principal. He was asked for an update on the situation. Pal told Liang to call him as soon as possible if there is a need for anything and he also asked for continuous updates.

39. One doctor asked Liang who the parent or guardian of the child was in which he replied that it was Ms. Inter Nette Explorer. He was also asked on the whereabouts of the parent in which he replied that she was not present.

40. A doctor declared Doras time of death at 2:23 P.M. Liang called Inter Nette for five (5) times but he was not able to reach her again as her phone was busy. He then called Pal to inform him that Dora had already been declared dead.

41. Pal instructed Liang to stay in the hospital, and wait until Ms. Explorer arrives. He called Mr. Mojo Jojo, the President of the school, informing him of what happened to Dora. He was told to coordinate with Inter Nette to assist her in the funeral needs.

42. Pal went to see Inter Nette and offered her my assistance. She told him that she will be needing money to cover the funeral expenses. Pal told her that he can help her in processing the claims under the insurance coverage in which she gave her consent.

ISSUES

1. Whether or not the defendants observed the proper diligence required by law.

2. Whether or not the defendants should be made liable for the damages resulting from the death of Dora D. Explorer.3. Whether the defendants should be made liable for actual, moral damages, attorneys fees and cost of the suit.

4. Whether or not the Plaintiff should be made liable for damages on account of malicious prosecution.ARGUMENTS and DISCUSSIONDEFENDANT PURPLE BACKPACK PRIMARY SCHOOL SHOULD NOT BE HELD LIABLE FOR DAMAGES RESULTING FROM DORA D. EXPLORERS DEATHDefendant exercised all the diligence of a good father of a family in the selection and supervision of its employees.

Prior to the hiring of Teachers Liang, Maps and Fox, the defendant, through the Board of Regents made a thorough review of their qualifications. They were given written examinations to test their educational merit and had undergone series of panel interviews. To test their physical fitness for the job, they went through medical examinations and passed stamina fitness challenges. To prove their mental and social behavior, they were psychologically evaluated by a certified psychiatrist.

During the first six months of employment, newly hired Physical Education teachers, especially those who handle swimming classes are required to undergo first aid and CPR trainings, swimming lessons. Every three months thereafter, they are obliged to undergo other trainings to improve their skills in swimming. Aside from these, they are mandated to attend seminar, workshops and teacher training programs.

Defendant always makes sure that all its employees meet the necessary qualifications and discipline required of a member of the school faculty.

All the activities, whether inside or outside the premises of the school, has to be approved by the authorities prior to its implementation.

Here, the special basic swimming class was approved by the school Principal, Prince E. Pal, as requested by Mrs. Inter Nette D. Explorer and the parents of Grade 2-Adventure. Said approval was given only after the parents' have submitted their letter-requests containing the oral agreement that only basic swimming class will be opened specially for their children and they, the parents/guardian shall be present during the class.

To accommodate them, Prince E. Pal contacted Swimmers World Pool Complex to lease a kiddie pool.

To ensure the safety of the children, three teachers are tasked to supervise and instruct the children, one who is the PE teacher and the other two as assistants, who are also qualified PE teachers. Also, other than the lifeguards of Swimmer's World, defendant employed its own lifeguards to make sure that the children will be properly taken cared of.

Article 218 of the Family Code bestows special parental authority on the following persons, thus:

Art. 218. The school, its administrators and teachers, or the individual, entity or institution engaged in child care shall have special parental authority and responsibility over the minor child while under their supervision, instruction or custody.

Authority and responsibility shall apply to all authorized activities whether inside or outside the premises of the school, entity or institution. (Emphasis Ours)

Admittedly, Dora D. Explorer was a student of Purple Backpack Primary School as proved by the school records. Dora was also enrolled in a special basic swimming class under the direct supervision of Teacher Liang as assisted by Teachers Maps.

The basic swimming class in not ordinarily part of the school curriculum for Grade 2 students but it was approved by Prince E. Pal, upon the request of the 2-Adventure class, including plaintiff.

Being an authorized activity, the defendant ensured the safety of all children enrolled in the swimming class. Defendant made sure that the teachers, lifeguards and the rest of the staff at the swimming facility are always properly coordinated.

An ambulance is always ready to be used in case of emergency.

Attached to the special parental authority of the school, its administrators and teachers are certain obligations, to wit:

Art. 2180. The obligation imposed by article 2176 is demandable not only for ones own acts or omissions, but also for those of persons for whom one is responsible.

x x x x

Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry.

x x x x

The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage.

In the case of Cruz v. Court of Appeals, In order that there may be a recovery for an injury, however, it must be shown that the injury for which recovery is sought must be the legitimate consequence of the wrong done; the connection between the negligence and the injury must be a direct and natural sequence of events, unbroken by intervening efficient causes. xxx, the negligence must be the proximate cause of the injury. For, negligence, no matter in what it consists, cannot create a right of action unless it is the proximate cause of the injury complained of. And the proximate cause of an injury is that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.

The proximate cause of Dora's drowning is her own fault and negligence for which the defendant should not be held liable.

The proximate cause of Doras injury was her own negligence in disregarding the repeated instructions given by Teacher Liang. Defendants invoke the ruling in St. Marys Academy v. Carpitanos, which absolved St. Marys Academy from liability for the untimely death of its student during a school sanctioned activity, declaring that "the negligence of petitioner St. Marys Academy was only a remote cause of the accident."

In the case of St. Mary's Academy vs. William Carpitanos, et al., it was held that for the school to be liable, there must be a finding that the act or omission considered as negligent was the proximate cause of the injury caused, because the negligence must have a causal connection to the accident.DEFENDANT PAL SHOULD NOT BE HELD LIABLE FOR DAMAGES RESULTING FROM THE DEATH OF DORA D. EXPLORERDefendant Pal observed proper diligence required of a good father of a family not only in the selection of employees of the school and the facilities used during classes

Article 2180 of the Civil Code states that:

The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage.

Based on the Judicial Affidavit of defendant Pal which was offered as his direct testimony as well as his cross-examination, he did the following acts to ensure the safety of the students and the orderly conduct of the classes:

1. He approved the PE class of the Grade 2- Adventure students after demands and requests from the parents provided that the lessons to be taught are only basic swimming skills and that the presence of a guardian or parent shall be required so that the student will be allowed participate in the pool exercises;

2. He also chose the kiddie pool at the Swimmers World Pool Complex which is located near the school;

3. The facility he chose is also separated by a wall from the adult-sized pool to make sure that the students will only stay at the kiddie pool during the conduct of the classes;

4. The wall between the adult-sized pool and the kiddie pool also has a gate which is always locked as per his instructions;

5. He chose defendant Liang as the PE teacher for the swimming class of Grade 2- Adventure; Liang was more than qualified and competent to be the swimming teacher given his professional background;

6. He also assigned additional two (2) teachers to help defendant Liang in supervising the swimming class;

7. He also makes sure that there are lifeguards on duty in the pool area;

8. On June 30, 2015, he also gave instructions that the adult-sized pool should only contain 1-foot of water since it will be under maintenance;

9. He also gave instructions that the kiddie pool should only contain 3 feet of water rather than the 4 feet maximum depth of the pool;

10. On the same date, all the teachers and the lifeguards he assigned were present at the pool facility during the conduct of the swimming class of the Grade 2 students;

11. The school policy that a student whose parent or guardian is not present will not be allowed to participate in the pool exercises is strictly implemented; pursuant to the policy, Dora was not allowed to join the pool exercises;

12. When the incident involving Dora and Boots was reported to him, he immediately gave the key of the school ambulance to the driver in order to bring the student/s to the nearest hospital; and

13. He thereafter reported the same to the President of defendant school.

Based on the foregoing, Pal did everything that he can do within his powers to ensure that the students in that swimming class will be safe. His concern for the students can clearly be seen in his acts of giving instructions as to the water depth of the pools and particularly the strict implementation of the school policy disallowing students whose parent or guardian is absent during the class.

Plaintiff failed to prove the negligence of defendant Pal that resulted to the death of Dora

Plaintiff claims that defendant Pal failed to observe the diligence required of a good father of a family as required by law. However, the pieces of evidence presented by the plaintiff failed to show that Pal was indeed negligent.

In the testimony of the Plaintiff, Internette D. Explorer, she confirmed that she was not in the place of the incident and was just informed through a phone call that her daughter was brought to the Makati Medical Center and was later on pronounced dead.

Since the Plaintiff was not at the place where the incident happened, she does not have any personal knowledge of the actions done by the school administrators, teachers and lifeguards in order to save and revive her child Dora. She cannot now go before this court to state that the defendant Pal is negligent when she did not see anything at the time of the incident.

Even the testimony of the child witness Boots N. Sonroa was not able to prove negligence of defendant Pal. In his direct and cross-examinations, he stated that he could not remember anything which happened after they slipped down the pool. But he remembered seeing, when he regained consciousness, that Dora was being revived by a lifeguard. Boots N. Sonroa does have not have any personal knowledge on the acts done by defendant Pal in order to keep them safe. Nothing in his testimony can be used to infer that Pal committed lapses in the performance of his duty as the Principal.

Moreover, since they do not have personal knowledge of the incident the Plaintiff being absent at the place and witness Boots was unconscious, Rule 30 of the provisions of the Rules of Court on Evidence should apply. Section 36 of which provides:

Section 36: Testimony generally confined to personal knowledge; hearsay excluded. A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as otherwise provided in these rules.Their lack of personal knowledge made their testimonies merely pieces of hearsay evidence which according to the rules should not be admissible.

Plaintiff failed to meet the standard of proof required in civil casesSection 1 of Rule 33 of Rules of Court provides:

Section 1. Preponderance of evidence, how determined. In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider all the facts and circumstances of the case, the witnesses manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number.

The pieces of evidence presented by the plaintiff were not able to support her claim that defendant Pal should be held liable for damages resulting from the death of her daughter due to Pals negligence. Nothing in the evidence, whether documentary or testimonial, proved that Pal as well as the other defendants were negligent, and that their negligence was the proximate cause of Doras death. Thus, the defendants should not be held liable.

DEFENDANT LIANG SHOULD NOT

BE HELD LIABLE FOR DAMAGES

RESULTING FROM DORA D. EXPLORERS DEATHMr. Diego C. Liang exercised due diligence of a good father of a family in supervising the swimming class

As teacher, Mr. Liang stands in loco parentis to his students. The Family Code of the Philippines expressly provides for this special parental authority of teachers, thus:Art. 218. The school, its administrators and teachers, or the individual, entity or institution engaged in child care shall have special parental authority and responsibility over the minor child while under their supervision, instruction or custody.Authority and responsibility shall apply to all authorized activities whether inside or outside the premises of the school, entity or institution. (Emphasis ours)

Mr. Liang exercised due diligence in the exercise of special parental authority over Dora D. Explorer, a minor child under his supervision and instruction. The degree of diligence required of him under the circumstances is that of a good father of a family, which is such degree of care that a reasonable and prudent man would have done under the circumstances. He exercised the diligence of a good father of a family in preventing any untoward incident from happening during his swimming class last June 29, 2015.

It must be pointed out that, Mr. Liang testified in court that he is exceptionally qualified as a swimming teacher for the students of Grade 2 Adventure Students every Monday from 10:30 AM to 3:00 P.M.. He stated that he has a degree of Bachelors of Science in Physical Education, Masters in Physical Education, and Doctorate Degree in Sports Science. Mr. Liangs role is that he is the one who actually goes into the pool and, teaches and supervises the students while they practice their strokes in the pool.Most of all, the facts as proved by the defendant clearly shows that he exercised the diligence of a good father of a family in supervising his swimming class held on June 29, 2015 at Swimmers World Pool Complex.In preparing for the class, Mr. Liang carefully made a thorough inspection of the facilities:Mr. Liang arrived at around 9:00 A.M. at Swimmers World Pool Complex, along with his two (2) co-supervising teachers, Mr. Swiper N. Fox and Ms. Mapmap M. Maps. After re-orienting themselves with the schedule for the day, they checked the swimming facilities. Mr. Liang described that the two swimming pools the kiddie pool and adult-sized pool in the facility, were separated by a wall, with a locked gate. The kiddie pool had a water level of three (3) feet, as they have instructed the maintenance person. Meanwhile, the adult-sized pool was filled with water with a depth of one (1) foot, according to the indicator. He also observed that there were three (3) lifeguards on duty, stationed around the swimming facilities.

The students together and their parents started arriving at the swimming facility at around 9:45 A.M. to 10:00 A.M. Ms. Dora D. Explorer arrived at the swimming facilities at 10:00 A.M., accompanied by her mother Inter Nette D. Explorer. Mr. Liang Ushered them to their seat, but Ms. Inter Nette D. Explorer left after five (5) minutes after being seated. Mr. Liang took action thereafter, to convince Ms. Explorer to stay with her child, thus:

Mr. Liang approached Ms. Inter Nette D. Explorer, and told her that she cannot leave, because it is strictly required that she be present during her daughters swimming class. Also, Mr. Liang told her that if if she leaves, her daughter cannot participate in practicing strokes in the pool on 2:00 P.M. to 3:00 P.M. Notwithstanding Mr. Liangs best efforts to convince Ms. Explorer to stay, she quickly left the swimming facilities, and she relied BASTA, and that she does not know when shell be back, when Mr. Liang asked why she needed to leave, and when she is coming back.

After her mother left, Mr. Liang approached Dora and informed the child that since her mother left, she can no longer practice her strokes in the pool later at 2:00 P.M. Dora replied OKAY PO. Mr. Liang, nevertheless, asked Dora if she understood him, and Dora replied YES PO, I UNDERSTAND. Mr. Liang instructed Dora to stay on her seat because class was about to start. Furthermore, in his testimony, when he was asked how many times he checked on Dora the moment she took her seat, until 1:50 P.M., Mr. Liang said around 15 times; which meant he checked on her every 10 minutes. Mr. Liang testified that until the time when the the students were changing into swimming attire, Dora was still seated on her seat, and even until 1:50 P.M. Mr. Liang reminded them that they will be conducting conducting their swimming practice in the pool by batches of five (5) students at a time.

Even after Ms. Inter Nette Explorer left the premises, Mr. Liang still diligently endeavored to contact her: At around 11:30 A.M., lunch time, Mr. Liang called Ms. Explorer on her cellphone to ask her if she will be able to come back before the students practice their strokes. However, after trying to contact her cellphone for five (5) times, Ms. Explorer did not answer Mr. Liangs calls. Mr. Liang then sent her a text messages asking her what time she will come back, but Ms. Explorer did not reply.

It was around 1:55 P.M. that Mr. Fox approached Mr. Liang and told him that Dora was no longer on her seat, and also another student Boots was also not on his seat. He then instructed Mr. Fox to look for Dora and Boots together with one of the lifeguards at the facility. Meanwhile, Mr. Liang stopped the swimming session of the first batch of students practicing in the pool, and called on Dora and Boots to check on them. He then instructed the lifeguards to search for the children in the whole area. He also alerted Ms. Maps and told her to inform Mr. Prince E. Pal.

When Dora was found by lifeguard David Hassel-hoof at the bottom of the adult-sized pool, the latter immediately administered cardiopulmonary resuscitation on Dora. By this time, Mr. Liang was with the students, parents and my co-teachers, keeping them from panicking. Also, he immediately phoned Ms. Inter Nette D. Explorer on her cellphone, but the latter did not answer her phone, even after Mr. Liang called her eight (8) times. Nevertheless, he sent her a text message to inform her about the situation.

After Dora was laid on a stretcher and boarded on Purple Backpacks ambulance, when lifeguard David Hassel-hoof was unable to resuscitate her while in the swimming facility, Mr. Liang, along with the other lifeguards boarded the same ambulance and sped to Makati Medical Center. Mr. Liang still tried to contact Ms. Inter Nette D. Explorers phone ten (10) times, but the latter did not answer. Mr. Liang sent her another text message informing her that Dora was being brought to Makati Medical Center.

After arriving at Makati Medical Center, Mr. Liang still tried to contact Ms. Inter Nette D. Explorer; five (5) times after the doctor declared that Doras time of death is 2:23 P.M. He was finally able to contact her and told her that that her child is in Makati Medical Center now because of an accident that happened at Swimmers World. Mr. Liang also contacted Mr. Prince E. Pal to provide the latter with updates.

Clearly, the above facts show that Mr. Liang did his best and exercised diligence of a good father of a family to prevent any untoward incident or damages to all his students in his swimming class. More importantly, he exercised the diligence of a good father of a family in preventing any untoward incident to happen to Dora and the rest of his students.While under his supervision and instruction, he took the necessary precautions to protect Dora, and the rest of his students, from dangers and hazards that would he reasonably anticipated.It must be pointed out that, the plaintiff also patently failed to prove that Mr. Liang failed to exercise such diligence required of him.

Plainly, since the above facts prove that Mr. Liang exercised the proper diligence required under the particular circumstances, he is not liable to pay any damages to the plaintiff.PROXIMATE CAUSE OF DORAS DEATH

The proximate cause of the death of Dora D. Explorer is not the negligence of the defendants

Article 2179 of the Civil Code provides that:

When the plaintiffs own negligence was the 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 defendants lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded.

The Court, in St. Marys Academy v. Carpitanos (2002), provided the definition of proximate cause as it applies to recovering damages for wrongful death, in ruling that:

"In order that there may be a recovery for an injury, however, it must be shown that the injury for which recovery is sought must be the legitimate consequence of the wrong done; the connection between the negligence and the injury must be a direct and natural sequence of events, unbroken by intervening efficient causes. In other words, the negligence must be the proximate cause of the injury. For, negligence, no matter in what it consists, cannot create a right of action unless it is the proximate cause of the injury complained of. And the proximate cause of an injury is that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred."

In the present case, Plaintiff, Inter Nette D. Explorer, the mother of the deceased, in essence, alleges that Purple Backpack Primary School, its principal Prince E. Pal, and the supervising teacher Diego C. Liang, should be held liable for the wrongful death of her daughter Dora D. Explorer.

Applying the aforementioned article 2179 of the Civil Code and the related jurisprudence in St. Marys Academy, in order for the Defendants, in the present case, to be held liable for wrongful death, it must be precisely alleged, clearly shown, and duly proven that the proximate cause of the injury/ death complained of was the negligence of the Defendants. The connection between the negligence and the injury must be a direct and natural sequence of events, unbroken by intervening efficient causes.

However, in her complaint filed before this honorable Court, the Plaintiff did not allege that the proximate cause of the death of her daughter was due to the negligence of school, its principal, and its teacher. Basically, what was simply alleged on her complaint was that, the deceased, Dora, was found at bottom deep end of the pool; and efforts to revive her proved to be futile as she was pronounced dead on arrival upon being brought to the Makati Medical Center immediately thereafter. She neither alleged that Dora drowned on that deep end of the pool or that she bumped her head nor suffered any injury before falling into the deep end of the pool. We are left to guess as to what exactly are her allegations concerning the cause of death of the deceased.

Neither did she offer any competent evidence to introduce, much less establish, what the cause of death of the deceased was and if such cause can, directly and proximately, be attributable to the negligence of the Defendants. Not even a Death Certificate was offered in evidence to prove the real cause of death. For all we know, Dora could have drowned, or bumped her head before falling into the pool, or suffered a heart attack or some kind of epileptic seizure, or if she merely slipped and fell into that pool. Essentially, only the bare assertion of the Complainant supports her theory that the School, the Principal, and the supervising Teacher should be held liable for the wrongful death of her daughter.

The burden of proof rest on the shoulders of the Complainant to establish what was really the cause of death of the deceased. And accordingly, if the proximate cause of such death is the negligence of the Defendants. Without a clear and definite cause of death it cannot be said, by any stretch of the imagination, that the proximate cause of death of Dora D. Explorer was due to the negligence of the Defendant School, of its principal, and of its teacher.

In arguendo, assuming that the Defendants were to be found negligent in some form or fashion, still it has to be clearly proven that such negligence was the proximate cause of death. For, negligence, no matter in what it consists, cannot create a right of action unless it is the proximate cause of the injury complained of.

PLAINTIFF IS NOT ENTITLED TO DAMAGESIn the present case, the plaintiff alleges that Purple Backpack Primary School, its principal Prince E. Pal, and the supervising teacher Diego C. Liang, should be held liable for the wrongful death of her daughter in the amount of three hundred and forty five thousand pesos (P345, 00.00) as actual damages, loss of earning capacity in the amount of twenty million pesos (P20, 000, 000.00), damages due to death in the amount of five hundred thousand pesos (P500, 000.00), moral damages in the amount of five hundred thousand pesos (P500, 000.00) and for the attorneys fees and costs of the suit.

A teachers liability arises from the failure to provide due diligence in the performance of the responsibilities that come with the substituted parental authority. To avoid responsibility and liability, the teacher must prove that due diligence was observed. As to the kind of due diligence, the last paragraph of Art 2180 reads,

The responsibility treated of in this article shall cease when the persons xxx prove that they have observed all the diligence of a good father of a family to prevent the damage. (emphasis ours)

The defendants should be relieved of the liability as they exercised the diligence required by law. Essentially, the simple question to be answered in this case is whether or not the defendants were able to exercise the required diligence by law.In the present case, in their physical education subject, the defendants were able to prove that they made the necessary precautions to protect the students in their care.

During the course of the trial, the defendants testified that they made the necessary precautions to protect the students in their care. Prior to the activity, an instruction that the pool be set at 3 meters was instructed by the school principal to the person-in-charge of the pool facility. Before the start of the activity, Diego C. Liang together with other supervising teachers conducted inspection of the facility and testified that the gate which serves as the boundary between the two (2) pools were locked. Also, the school instructed the Swimmers World to surround the kiddie pool area with three (3) lifeguards and such lifeguards were there in their respective position. Further, the defendants testified

1)School has policies regarding standards of care and supervision in writing.

2)The PE Class addresses potential safety risks and plan for the students when appropriate and included actions that will be taken to minimize risks.

3)PE teachers and other personnel involved with a student are fully aware and equipped of safety measures related to the said physical education activity.

To be held liable for damages due to the wrongful death, it must be precisely alleged, clearly shown, and duly proven that the proximate cause of the injury/death complained of was the negligence of the defendants. None of which was done in this case.

The defendants admits that there was damage or injury caused to the plaintiff but such was not due to the negligence of the defendants. As to the Claim of Actual Damages

Considering arguendo that the defendants failed to exercise the required diligence, our basic law tells us that to recover damages there must be pleading and proof of damages suffered by the plaintiff. As explained in Jardine Davies Inc. vs. JRB Realty Inc.:

x x x the amount of actual damages suffered must be proven with a reasonable degree of certainty, premised on competent proof and on the best evidence obtainable by the injured party which usually means official receipts.

The plaintiff identified and marked her pieces of evidence to support her claim for damages, such as receipts for funeral and hospital expenses. However, during the trial, none of those were formally offered.

The Rules of Court provides that the court shall consider no evidence which has not been formally offered. A formal offer is necessary because judges are mandated to rest their findings of facts and their judgment only and strictly upon the evidence offered by the parties at the trial. Strict adherence to the said rule is not a trivial matter. Any evidence that has not been offered shall be excluded and rejected.

As to the loss of earning capacity in the amount of twenty million and one hundred thousand pesos (P20, 100, 000.00), the plaintiff presented Contracts of Employment as evidence to prove loss of earnings of the deceased child. During the trial, the plaintiff identified them and that she acknowledged her non-participation in the preparation of the same. Absent plaintiffs personal knowledge as to the due execution, preparation and authenticity of the said documentary evidence, such pieces of evidences shall be considered hearsay evidence. As held in the case of Ocampo vs. Angeles

Under Article 2206 of the Civil Code, the heirs of the victim are entitled to indemnity for loss of earning capacity. Compensation of this nature is awarded not for loss of earnings, but for loss of capacity to earn money. The indemnification for loss of earning capacity partakes of the nature of actual damages which must be duly proven by competent proof and the best obtainable evidence thereof. Thus, as a rule, documentary evidence should be presented to substantiate the claim for damages for loss of earning capacity.

x x x

x x x x x x

Evidence is hearsay when its probative force depends on the competency and credibility of some persons other than the witness by whom it is sought to be produced. The exclusion of hearsay evidence is anchored on three reasons: (1) absence of cross-examination; (2) absence of demeanor evidence; and (3) absence of oath. Basic under the rules of evidence is that a witness can only testify on facts within his or her personal knowledge. This personal knowledge is a substantive prerequisite in accepting testimonial evidence establishing the truth of a disputed fact. Corollarily, a document offered as proof of its contents has to be authenticated in the manner provided in the rules, that is, by the person with personal knowledge of the facts stated in the document.

Moreover, no other evidence was identified and offered by the plaintiff to support the claim of loss of earning capacity. The Contracts of Employment are not competent proof to show earning capacity of the child absence proof (i.e. receipts) that the child actually received those remuneration.

PRAYER

WHEREFORE, it is respectfully prayed that the defendants be held NOT liable for the death of Dora D. Explorer and the payment of the following:1. actual damages for funeral expenses incurred by the plaintiff amounting to P345,000;

2. damages from loss of earning capacity amounting to P20,100,000;

3. moral damages amounting to P500,000;

4. damages resulting from the death of Dora amounting to P500,000; and

5. Attorneys fees and the cost of the suit

Other forms of relief, just and equitable, under the premises are likewise prayed for.Makati City for Makati City, October 15, 2015.

Atty. Rooth P. GeensburgCounsel for Defendants

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Trunkline Nos. (02) 555-5555

Fax No. (02) 876-54 Judicial Affidavit of Diego C. Liang, Question and Answer no. 1-2, p.1

Id. Question and Answer no. 5-6, p.2

Id. Question and Answer no. 9-13, p. 2-3

Id. Question and Answer no.16-21, p.3-4

Id. Question and Answer no. 26, p.5


Id. Question and Answer no. 31-33, p. 5

Id. Question and Answer no. 34-37, p.5-6

Id. Question and Answer no. 38, p.6


Id. Question and Answer no. 44, p.6-7




Id. Question and Answer no. 52, p. 7




Id. Question and Answer no.73-79, p. 10











Id. Question and Answer no.106-107, p. 13-14







Id. Question and Answer no.132-138, p. 16-17; Question and Answer no.147-150, p.18



Id. Question and Answer no.146, p. 18; Question and Answer no.157- 163, p. 19

Judicial Affidavit of Prince E. Pal, Question and Answer no. 68-70, p.9


346 Phil 872, 886 (1997)

G.R. No. 143363, February 6, 2002 citing Sanitary Steam Laundry, Inc. v. Court of Appeals, 360 Phil. 199, 208 [1998]

G.R. No. 143363, February 6, 2002 citing Sanitary Steam Laundry, Inc. v. Court of Appeals, 360 Phil. 199, 208 [1998]

Judicial Affidavit of the Plaintiff items no. 19-22

Judicial Affidavit of Boots N. Sonroa

TSN dated October 3, 2015

Civil Code, Art. 1173.

The fault or negligence of the obligor consists in the omission of that diligence which is required by the nature of the obligation and corresponds with the circumstances of the persons, of the time and of the place. When negligence shows bad faith, the provisions of articles 1171 and 2201, paragraph 2, shall apply.

If the law or contract does not state the diligence which is to be observed in the performance, that which is expected of a good father of a family shall be required. (Emphasis ours)

Judicial Affidavit of Diego C. Liang, p.2

Id. at 3.

Id.

Id. at 4.

TSN 10 October 1015 p. 25.

Supra note 51 at 4.

Id.

Id.

Id. at 5.

Id.

Id.

Id. at 6.

Id.

Id.

TSN 10 October 1015 p. .

Supra note 51 at 9.

Id. at 10.

Id. at 8.

Id.

Id.

Id. at 12.

Id.

Id.

Id. at 13.

Id.

Id. at 14.

Id.

Id.

Id.

Id. at 16.

Id.

Id.

Id. at 19.

Id.

Id. at 18.

Civil Code, Article 2179.

St. Marys Academy v. Carpitanos, et. al., G.R.No. 143363 (2002)citing Cruz v. Court of Appeals, 346 Phil. 872, 886 (1997).

Id.

Ibid.

Sangco, Philippine Law on Torts and Damages, 502 (1994).

G.R. No. 151438, 15 July 2005, 463 SCRA 555.

Heirs of Pedro Pasag vs. Sps. Lorenzo , G.R. No. 155483, 27 April 2007.

G.R. No. 187899, 23 October 2013.

Documents

Memo Civil v3