Leonelle Mojal-Infante

LEGAL WRITING-February 22,2013

Annulment of Marriage
Page 1 of 5

Republic of the Philippines

METROPOLITAN TRIAL COURT
National Capital Judicial Region
Manila, Branch 1
PETER BANAG,
Plaintiff,
CIVIL CASE NO. 123456

- versus ARTHUR SISON,

Defendant,
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PLAINTIFFS MEMORANDUM

PLAINTIFF, by counsel, respectfully submits its memorandum

of the case:
The Case
Plaintiff, Peter Banag filed this action against defendant
Arthur Sison, for the injuries that his daughter, Mary
suffered due to the latters dog attack and bites. Mr.
Banag is claiming the amount of Php 20,000.00 for the
damages against Mr. Sison for the psychological and
emotional trauma and pain that his daughter suffered.
The Facts
Peter Banag, the plaintiff is the father of Mary. Mary who
is six years old went to Arthur Sisons house to buy icecandies. Fred Puzon, a concerned neighbor testified for the
plaintiff that he personally saw the following incidents:

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LEGAL WRITING-February 22,2013
Annulment of Marriage
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That, at about 3:00PM of September 12, Fred saw Mary

approached Arthur's gate and knocked to buy ice-candies.
When nobody responded, she tested and tried to push the gate
and it yielded. The dog jumped out and attacked her from
behind as she turned and ran to leave, biting her on the legs
and arms as she fell to the ground.
Fred came into rescue by kicking the dog away, stood and
protected her from further dog attacks, as the dog continued
barking as if it was ready to attack again.
Arthur, came out of his house and sent his dog into his
yard. He picked Mary up and brought Mary to a nearby clinic
for treatment.
The defendant, Arthur Sison who is the owner of the icecandy store and the dog in reply to the letter said that he
cannot grant the demand of the plaintiff to pay Php 20,000.00.
He claims that he should not be blamed for the accident that
happened to Mary, pointing out that he had exercised proper
diligence in making his premises safe for its customers by
putting a warning sign at the gate and that the accident was
something Mary and her parents had contributed to the cause
of the accident should any adult had accompanied the child in
going outside their home. Sison further stated that he was the
one who brought Mary to the nearby clinic for treatment and
paid the medical bills.
The Issues
1. Whether or not Arthur Sison exercised proper diligence in
making its premises safe for its customers.
2. Whether or not Marys accident was through her own
contributory negligence;
3. Whether or not the plaintiff is entitled to the damages that
he is claiming for.
Arguments
I.

Leonelle Mojal-Infante
LEGAL WRITING-February 22,2013
Annulment of Marriage
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ARTHUR SISON DID NOT EXERCISE PROPER

DILIGENCE IN MAKING HIS PREMISES SAFE FOR HIS
CUSTOMERS.
Sison on his letter addressed to Peter Banag, (Exh. A)
admitted that he has been selling ice-candies at the gate of his
house but further claims that his gate has an automatic
closer. However, he also admitted that at times he would left
the gate unlocked from the inside for his children coming in
and out.
In the case of Philippine National Construction Corporation
v. Court of Appeals, G.R. No. 159270, August 22, 2005, 467
SCRA 569;
Negligence has been defined as the failure to observe for the
protection of the interests of another person that degree of care,
precaution, and vigilance which the circumstances justly demand,
whereby such other person suffers injury.
The elements of simple negligence: are (1) that there is lack of
precaution on the part of the offender;
The standard test in determining whether a person is negligent
in doing an act whereby injury or damage results to the person or
property of another is this: could a prudent man, in the position of the
person to whom negligence is attributed, foresee harm to the person
injured as a reasonable consequence of the course actually pursued?
If so, the law imposes a duty on the actor to refrain from that course or
to take precautions to guard against its mischievous results, and the
failure to do so constitutes negligence
xxx
xxx
xxx
First, in the above scenario, considering that Arthur was
selling ice-candies, it is well-established that majority of his
market are obviously kids in the neighborhood. However, at
the time the accident happened, Arthur lacked prudence when
for his own convenience, left his gate unlocked so that when
his kids get in and out of his house, his nap will not be
distracted.
Arthur, being also a father would have thought of how
kids in the neighborhood can freely roam around the area.
Buying simple stuff from a nearby small stores like his is just

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LEGAL WRITING-February 22,2013
Annulment of Marriage
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but normal. When he thought of taking a nap, it is most likely

that he wanted to have a complete rest; that is why he had left
the gate open just in case his kids will need to go in and out of
his gate. If he was prudent enough, he should have thought of
either closing his store for a while or at least to put the dog on
a secured cage or bind the dog to a safe place. Here, neither of
the above precautionary measures was done nor considered.
Thus, Arthur was negligent in maintaining his premises safe
for his customers.
II.
NO CONTRIBUTORY NEGLIGENCE ON THE PART OF
MARY AND HIS PARENTS.
First, on Arthurs argument about the written warning
about the presence of the dog does not suffice his claim that
he indeed was exercising utmost precautions.
In the book of Philippine Law on Torts and Damages vol.
2 by J. Cesar S. Sangco on page 10 reads the wild beast
theory:
In England a similar principle is laid down in Ryland v.
Fletcher, where justice Blackburn said: We think that the rule of
law is, that the person who for his own purposes brings on his land
collects and keeps there anything likely to do mischief, if it escapes
must keep it at his peril, and if, he does not do so is prima facie
answerable for all the damage which is the natural consequence of
its escape

xxx

xxx

xxx

In the doctrine of the wild beast theory, it is said to be an

absolute liability thus, unnecessary for the plaintiff to prove
that negligence was contributory. Thus, the defense of
defendant for taking all possible precaution is futile.
Furthermore, let us suppose we will accept the fact that there
was a sign on the gate, sign is not enough if the dog itself is on
the loose and can just attack anyone at any rate.
Second, on the argument that Mary would have been
accompanied by an adult in going out of their home, thus her
parents has no right to claim for damages due to contributory
negligence, even if Mary would have been with his parents but
still the dog can go out and can just attack someone it can still
at any moment attack and bite anyone trying to be near the

Leonelle Mojal-Infante
LEGAL WRITING-February 22,2013
Annulment of Marriage
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premises. It could have even attacked Mary and his supposed

to be guardian accompanying her.
III.
ARTHUR

SISON

IS LIABLE FOR DAMAGES.

If Arthur did not leave the gate unlocked or at least put

the dog on a leash before taking a nap an act showing a lack
of due care there would have been no way the dog could have
attacked Mary. Well, he may say that paying Marys medical
bill should be enough, but that does not cover the moral
damages that Mary is entitled to under
Art. 2219. Moral damages may be recovered in the
following analogous cases:
(1) A criminal offense resulting in physical injuries;
(2)Quasi delicts causing physical injuries;
Quasi delict defined in the Civil Code is:
Art.2176. Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for
the damage done. Such fault or negligence, if there is no preexisting contractual relation between the parties, is called a
quasi-delict and is governed by the provision of this Chapter.
Therefore Arthur, being the owner of the dog which attacked
Mary, is liable for actual and moral damages.