Memo Civil v3

Republic of the Philippines
REGIONAL TRIAL COURT

National Capital Judicial Region
Branch 22, Makati City
INTER NETTE D. EXPLORER,

Plaintiff,
Civil Case No. 3702449
-versus-
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 CASE

On 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
MEMORANDUM
Internette D. Explorer vs. Purple Backpack Primary School,
Prince E. Pal and Diego C. Liang
x ================================================= x
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 FACTS

Based 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
MEMORANDUM
x ================================================= x
swimming classes with Grade 2-Adventure.1 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. 2
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. 3
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.4
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.5
6. At 10:00 A.M. Dora D. Explorer arrived with her mother
Internette D. Explorer.6
1
2
3
4
5
6
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
MEMORANDUM
x ================================================= x
7. Immediately, Liang ushered Dora and Internette to their

seats. At around five minutes thereafter Internette rose
from her seat to leave.7
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. 8
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. 9
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. 10
11.
Internette D. Explorer immediately
left
the
premises of the swimming facilities.11

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..12
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.13
14.
Dora was then asked if she understood what Liang
said
to
her
which
UNDERSTAND.14
Id. Question and Answer no. 31-33, p. 5
Id. Question and Answer no. 34-37, p.5-6
9
Id. Question and Answer no. 38, p.6
10
11
Id. Question and Answer no. 44, p.6-7
12
13
14
7
8
Dora
replied,
YES
PO,
MEMORANDUM
x ================================================= x
15.
Liang then told Dora to stay in her seat as the class
was about to start.15

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. 16
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.17
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. 18
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).19
20.
Liang and Maps goes into the pool and, teaches and
supervises the students while they practice their strokes
15
16
17
18
19
Id.
Id.
Id.
Id.
Id.
Question
Question
Question
Question
Question
and
and
and
and
and
Answer
Answer
Answer
Answer
Answer
no. 52, p. 7
no. 53-56, p.7-8
no. 57-63, p. 8
no. 64-72, p. 9
no.73-79, p. 10
MEMORANDUM
x ================================================= x
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.20
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.21
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.22
23.
Thereafter, Liang instructed Fox to look for Dora and
Boots together with one of the lifeguards at the facility. 23
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.24
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.25
26.
Liang then immediately told the lifeguards to
search for them in the whole area.26
20
21
22
23
24
25
26
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Question
Question
Question
Question
Question
Question
Question
and
and
and
and
and
and
and
Answer
Answer
Answer
Answer
Answer
Answer
Answer
no.
no.
no.
no.
no.
no.
no.
81-83, p.10-11
84-89, p. 11-12
90-93, p. 12
94, p. 12
95, p. 12
96-98, p. 12-13
99, p. 13
MEMORANDUM
x ================================================= x
27.
Liang then told his co-teacher Ms. Maps to inform
Mr. Prince E. Pal of the situation. 27

28.
Liang kept looking for the two missing students
while his two co-teachers were reassuring the rest of the
students.28
29.
At around 2:03 PM Lifeguard David Hassel-hoof
found Dora and Boots at the bottom of the adult-sized
pool.29
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). 30

31.
Hassel-hoof administered CPR on Dora while
Underson administered CPR on Boots.31
32.
When the lifeguards were administering CPR, Liang
was with the students, parents and his co-teachers
keeping the students and parents from panicking. 32
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. 33
34.
At around 2:05 P.M., Pam Ella Underson was able
to resuscitate Boots.34
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
27
28
29
30
31
32
33
34
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Question
Question
Question
Question
Question
Question
Question
Question
and
and
and
and
and
and
and
and
Answer
Answer
Answer
Answer
Answer
Answer
Answer
Answer
no. 100, p. 13
no.101-102, p.
no.103-105, p.
no.106-107, p.
no.108-109, p.
no.110-111, p.
no.112-117, p.
no.118-119, p.
13
13
13-14
14
14
14-15
15
MEMORANDUM
x ================================================= x
School. The lifeguards and Liang all boarded the

ambulance as they
Medical Center.35
36.
While inside
immediately rushed to Makati

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. 36
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.37
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.38
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. 39
Id.
Id.
37
Id.
p.18
38
Id.
39
Id.
35
36
Question and Answer no.120-126, p. 15-16

Question and Answer no.127-131, p. 16
Question and Answer no.132-138, p. 16-17; Question and Answer no.147-150,
Question and Answer no. 152-156, p. 18
Question and Answer no.139-143, p. 17
MEMORANDUM
x ================================================= x
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.40
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.41

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.42
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.
40
41
42
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
Id. Question and Answer no.71-74, p. 9-10
MEMORANDUM
x ================================================= x
10
ARGUMENTS and DISCUSSION

DEFENDANT PURPLE BACKPACK PRIMARY SCHOOL
SHOULD NOT BE HELD LIABLE FOR DAMAGES
RESULTING FROM DORA D. EXPLORERS DEATH
Defendant 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.
examinations
to
test
their
They were given written
educational
undergone series of panel interviews.
merit
and
had
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,
MEMORANDUM
x ================================================= x
11
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.
MEMORANDUM
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12
Article 218 of the Family Code bestows special parental

authority on the following persons, thus:
Art.
218.
administrators
The
and
school,
teachers,
or
its
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.43 (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.
43
MEMORANDUM
x ================================================= x
13
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.
xxxx
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.
xxxx
The responsibility treated of in
this article shall cease when the persons
herein
mentioned
prove
that
they
MEMORANDUM
x ================================================= x
14
observed all the diligence of a good father

of a family to prevent damage.
In the case of Cruz v. Court of Appeals44, 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
44
346 Phil 872, 886 (1997)
MEMORANDUM
x ================================================= x
15
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
Carpitanos45, et al.46, 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. EXPLORER
Defendant
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
45
G.R. No. 143363, February 6, 2002 citing Sanitary Steam Laundry, Inc. v. Court of
Appeals, 360 Phil. 199, 208 [1998]

46
G.R. No. 143363, February 6, 2002 citing Sanitary Steam Laundry, Inc. v. Court of
Appeals, 360 Phil. 199, 208 [1998]
MEMORANDUM
x ================================================= x
16
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 crossexamination, 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;
MEMORANDUM
x ================================================= x
17
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
MEMORANDUM
x ================================================= x
18
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.47
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
47
Judicial Affidavit of the Plaintiff items no. 19-22
MEMORANDUM
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19
anything which happened after they slipped down the pool. 48

But he remembered seeing, when he regained consciousness,
that Dora was being revived by a lifeguard.
49
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 cases
Section 1 of Rule 33 of Rules of Court provides:
48
49
Judicial Affidavit of Boots N. Sonroa

TSN dated October 3, 2015
MEMORANDUM
x ================================================= x
20
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 DEATH
MEMORANDUM
x ================================================= x
Mr.
Diego
C.
21
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
care
engaged
shall
parental
have
child
special
authority
responsibility
minor
in
child
their
and
over
while
the
under
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
MEMORANDUM
x ================================================= x
22
father of a family50, 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.51. 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
50
51
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
MEMORANDUM
x ================================================= x
23
two (2) co-supervising teachers, Mr. Swiper N. Fox

and Ms. Mapmap M. Maps.52 After re-orienting
themselves with the schedule for the day, they
checked the swimming facilities.53 Mr. Liang
described that the two swimming pools the
kiddie pool and adult-sized pool in the facility,
were separated by a wall,
54
with a locked gate55.
The kiddie pool had a water level of three (3) feet,

as they have instructed the maintenance person. 56
Meanwhile, the adult-sized pool was filled with
water with a depth of one (1) foot, according to the
indicator.57 He also observed that there were three
(3) lifeguards on duty, stationed around the
swimming facilities.58
The students together and their parents started arriving
at the swimming facility at around 9:45 A.M. to 10:00 A.M. 59
Ms. Dora D. Explorer arrived at the swimming facilities at
10:00 A.M., accompanied by her mother Inter Nette D.
Explorer.60 Mr. Liang Ushered them to their seat, but Ms. Inter
Nette D. Explorer left after five (5) minutes after being seated. 61
Mr. Liang took action thereafter, to convince Ms. Explorer to
stay with her child, thus:
52
53
54
55
56
57
58
59
60
61
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.
MEMORANDUM
x ================================================= x
24
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.62 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.63 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.64
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. 65 Mr.
Liang testified that until the time when the the students were
changing into swimming attire, Dora was still seated on her
seat,66 and even until 1:50 P.M. Mr. Liang reminded them that
62
63
64
65
66
Id. at 6.
Id.
Id.
TSN 10 October 1015 p. .
Supra note 51 at 9.
MEMORANDUM
x ================================================= x
25
they will be conducting conducting their swimming practice in

the pool by batches of five (5) students at a time 67.
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.68 However,
after trying to contact her cellphone for five (5)
times, Ms. Explorer did not answer Mr. Liangs
calls.69 Mr. Liang then sent her a text messages
asking her what time she will come back, but
Ms. Explorer did not reply.70
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. 71 He then
instructed Mr. Fox to look for Dora and Boots together with
one of the lifeguards at the facility.72 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.73 He then instructed the lifeguards to
search for the children in the whole area. 74 He also alerted Ms.
Maps and told her to inform Mr. Prince E. Pal. 75
67
68
69
70
71
72
73
74
75
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
at 10.
at 8.
at 12.
at 13.
MEMORANDUM
x ================================================= x
26
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.76 By this
time, Mr. Liang was with the students, parents and my coteachers, keeping them from panicking. 77 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.78 Nevertheless, he sent her a text message
to inform her about the situation.79
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. 80 Mr. Liang still
tried to contact Ms. Inter Nette D. Explorers phone ten (10)
times, but the latter did not answer. 81 Mr. Liang sent her
another text message informing her that Dora was being
brought to Makati Medical Center.82
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. 83 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
76
77
78
79
80
81
82
83
Id. at 14.
Id.
Id.
Id.
Id. at 16.
Id.
Id.
Id. at 19.
MEMORANDUM
x ================================================= x
27
happened at Swimmers World. 84 Mr. Liang also contacted Mr.

Prince E. Pal to provide the latter with updates. 85
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
84
85
Id.
Id. at 18.
MEMORANDUM
x ================================================= x
28
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.86
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
86
Civil Code, Article 2179.
MEMORANDUM
x ================================================= x
29
efficient intervening cause, produces the injury, and

without which the result would not have occurred."87
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.88
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
St. Marys Academy v. Carpitanos, et. al., G.R.No. 143363 (2002)citing Cruz v. Court
of Appeals, 346 Phil. 872, 886 (1997).
88
Id.
87
MEMORANDUM
x ================================================= x
30
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.89
89
Ibid.
MEMORANDUM
x ================================================= x
31
PLAINTIFF IS NOT ENTITLED TO DAMAGES

In 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. 90
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
90
Sangco, Philippine Law on Torts and Damages, 502 (1994).
MEMORANDUM
x ================================================= x
32
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
MEMORANDUM
x ================================================= x
33
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.:91
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
91
G.R. No. 151438, 15 July 2005, 463 SCRA 555.
MEMORANDUM
x ================================================= x
34
the said rule is not a trivial matter. 92 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. Angeles93
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.
xxx
xxx
Evidence is hearsay when its probative force
depends on the competency and credibility of some
persons other than the witness by whom it is
92
Heirs of Pedro Pasag vs. Sps. Lorenzo , G.R. No. 155483, 27 April 2007.
93
G.R. No. 187899, 23 October 2013.
MEMORANDUM
x ================================================= x
35
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
MEMORANDUM
x ================================================= x
36
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. Geensburg

Counsel for Defendants
Roll No.765432
IBP No. (Lifetime Membership)
MCLE Exemption No. IV-002486 (05.14.15)
US, SUPREME AND ASSOCIATES LAW OFFICES
50TH Floor, USSC Tower, Washington Street,
Makati City
Trunkline Nos. (02) 555-5555
Fax No. (02) 876-54

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Republic of the Philippines

REGIONAL TRIAL COURT

INTER NETTE D. EXPLORER,

Civil Case No. 3702449

STATEMENT OF THE CASE

bottom part of the adult-sized pool of the Swimmers World

STATEMENT OF THE FACTS

1. Mr. Diego C. Liang (Liang) is employed as a P.E. teacher

swimming classes with Grade 2-Adventure.1 Dora D.

maintenance person despite its maximum depth of four

otherwise, the student will not be allowed to participate

7. Immediately, Liang ushered Dora and Internette to their

premises of the swimming facilities.11

Liang then told Dora to stay in her seat as the class

was about to start.15

throughout that time, Dora was seated on her seat while

while Fox is supervising the students who are out of the

Liang then told his co-teacher Ms. Maps to inform

Mr. Prince E. Pal of the situation. 27

performed cardiopulmonary resuscitation (CPR). 30

School. The lifeguards and Liang all boarded the

immediately rushed to Makati

continued to administer CPR on Dora while Liang tried

Question and Answer no.120-126, p. 15-16

A doctor declared Doras time of death at 2:23 P.M.

to coordinate with Inter Nette to

assist her in the funeral needs.41

Whether or not the defendants observed the proper

Whether or not the defendants should be made

Whether the defendants should be made liable for

Whether or not the Plaintiff should be made liable

ARGUMENTS and DISCUSSION

Defendant exercised all the

They were given written

undergone series of panel interviews.

To test their physical

fitness for the job, they went through medical examinations

they are obliged to undergo other trainings to improve their

Swimmers World Pool Complex to lease a kiddie pool.

Article 218 of the Family Code bestows special parental

individual, entity or institution engaged

supervision, instruction or custody.

Being an authorized activity, the defendant ensured the

scope of their assigned tasks, even

observed all the diligence of a good father

Dora's drowning is her own

which the defendant should

The proximate cause of Doras injury was her own

346 Phil 872, 886 (1997)

from liability for the untimely death of its student during a

Carpitanos45, et al.46, it was held that for the school to be liable,

DEFENDANT PAL SHOULD NOT BE

proper diligence required of

employees of the school and

Appeals, 360 Phil. 199, 208 [1998]

Article 2180 of the Civil Code states that:

Based on the Judicial Affidavit of defendant Pal which

6. He also assigned additional two (2) teachers to help

of the school policy disallowing students whose parent or

Plaintiff failed to prove the

Judicial Affidavit of the Plaintiff items no. 19-22

anything which happened after they slipped down the pool. 48

knowledge; hearsay excluded. A witness can testify only to

Their lack of personal knowledge made their testimonies