211108-2017-Spouses Latonio v. McGeorge Food Industries20180221-6791-1nj34pi
211108-2017-Spouses Latonio v. McGeorge Food Industries20180221-6791-1nj34pi
211108-2017-Spouses Latonio v. McGeorge Food Industries20180221-6791-1nj34pi
DECISION
PERALTA , J : p
Before this Court is a petition for review 1 via Rule 45 of the Rules of Court
assailing the Decision 2 dated September 28, 2012 and Resolution 3 dated January 31,
2013 of the Court of Appeals (CA), Cebu City in CA-G.R. CV No. 03079, which reversed
and set aside the Decision 4 of the Regional Trial Court (RTC) Branch 22, Cebu City and
denied the motion for reconsideration, respectively.
The facts are as follows:
On September 17, 2000, the petitioners, spouses Ed Dante (Ed) and Mary Ann
Latonio (Mary Ann), accompanied their eight-month-old child Ed Christian to a birthday
party at the McDonald's Restaurant, Ayala Center, Cebu City.
During the party and as part of the birthday package, McDonald's presented two
mascots — "Birdie" and "Grimace" — to entertain and dance for the guests. Respondent
Tyke Philip Lomibao (Lomibao) 5 was the person inside the "Birdie" mascot suit.
After the mascots danced, guests had their pictures taken with them. Intending
to have her child's photo taken with the mascots, Mary Ann placed Ed Christian on a
chair in front of the mascot "Birdie." The mascot positioned itself behind the child and
extended its "wings" to give a good pose for the camera.
As photos were about to be taken, Mary Ann released her hold of Ed Christian.
Seconds later, the child fell head first from the chair onto the floor.
Several guests attended to Ed Christian. Meanwhile, the employees of
respondent McDonald's Cebu Golden Food 6 (Cebu Golden Food) assisted petitioners
in giving rst aid treatment to Ed Christian. Petitioners, nevertheless, remained and
continued with the party and left only after the party was over.
At about 9:30 in the evening of the same day, Mary Ann called up Cebu Golden
Food to inform them that their doctor advised them to get an x-ray examination on Ed
Christian. Cebu Golden Food then assured her that they were willing to shoulder the
expenses for the x-ray examination of Ed Christian. Later, McDonald's reimbursed Mary
Ann for the expenses incurred relative to the x-ray examination. It further offered to pay
the expenses for the CT scan to be conducted on Ed Christian.
For some time, nothing was heard from petitioners. Nonetheless, a staff of Cebu
Golden Food visited the Latonios in their residence to follow up the results of the CT
scan test. The staff was met by the brother of Mary Ann, who allegedly repeatedly
shouted at them saying that they would le a case against Cebu Golden Food. Thus,
Cebu Golden Food reported the incident to their licensor, McGeorge Food Industries,
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Inc.
Sometime in October 2000, McGeorge received a Letter from the lawyer of the
Latonios regarding the September 17, 2000 incident. In its reply, McGeorge
immediately assured the Latonios that the health and safety of all McDonald's
customers is its utmost concern and that the best medical and hospital care would be
made available to Ed Christian.
McGeorge also sent its Field Service Director, together with its lawyer, to meet
with the Latonios and their lawyers to assure them that McDonald's was ready to assist
in whatever medical attention would be required of Ed Christian.
During the meeting, McGeorge agreed to contact a neurologist for consultation
to ensure Ed Christian's health. McGeorge conferred and consulted with two
neurosurgeons at the St. Luke's Medical Center and the Makati Medical Center, who
both recommended to rst study the x-ray results and CT scan to determine the extent
of the injury sustained by the baby.
Thereafter, McGeorge relayed the doctor's requirement to the Latonios who
initially agreed to give McGeorge copies of the x-ray and CT scan results. However, the
Latonios had a change of heart and informed McGeorge that they had decided against
lending them the x-ray and CT scan results and other related medical records.
Instead, the Latonios sent a Letter to McGeorge demanding for compensation in
the amount of Fifteen Million Pesos (P15,000,000.00).
As their demand remained unheeded, the Latonios caused the publication of the
accident in the local newspaper, Sun Star Cebu on February 8, 2001 with a headline
"Food outlet sued for P9 M damages." Simultaneously, the Latonios also instituted a
complaint for damages and attorney's fees against McGeorge.
On March 3, 2009, the RTC, in Civil Case No. CEB-26126, issued a Decision, 7 the
dispositive portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered in favor
of the plaintiffs and against defendants Tyke Philip Lomibao and Cebu Golden
Foods, Inc., nding defendant Tyke Philip Lomibao liable for acts of negligence
causing the fall of baby Ed Christian Latonio and correspondingly, nding
defendant Cebu Golden Foods, Inc. liable solidarily with defendant Tyke Philip
Lomibao, pursuant to Article 2180 of the New Civil Code inasmuch as defendant
Cebu Golden Foods, Inc. was the employer of defendant Tyke Philip Lomibao.
Accordingly, defendants Tyke Philip Lomibao and Cebu Golden Foods,
Incorporated, are hereby ordered to pay to the plaintiffs the following:
1. P900,000.00 as Moral Damages;
2. P50,000.00 as Exemplary Damages, and CAIHTE
Notably, while the CA and the trial court made con icting rulings on the
negligence of Cebu Golden Food and Lomibao, they, however, concur on Mary Ann's
own negligence. The trial court's summation of Mary Ann's own negligence is as
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follows:
12. Jarco Marketing Corp. v. Court of Appeals, 378 Phil. 991, 1008 (1999).
13. TSN, December 8, 2003, pp. 7-8. (Emphasis ours)
14. TSN, October 23, 2007, p. 21. (Emphasis ours)
15. Id. at 21-22.
16. Id. at 22.
17. Id.
18. TSN, December 8, 2003, p. 11.
19. Id. at 13-14.
20. Id. at 14. (Emphasis ours)
n Note from the Publisher: Written as "Spouses Custodia v. CA" in the original document.