July 27, 2011

MR.PETER BANG 16 Annapolis St., Quezon City

Re: Query on the liability of Mr. Arthur Sison as owner of the dog.

Dear Mr. Banag:

You came to us seeking for an opinion regarding the ordeal of your daughter who was attacked by your neighbors dog thereby inflicting injuries on her. Based on the narration of your eyewitness, Fred Puzon, and the letter of Arthur Sison, the facts are culled as follows:
That on September 12, 2010 at around 3 in the afternoon, your six year old daughter, Mary, went to Arthur Sisons house to buy ice candies. She was knocking on the gate but since nobody answered, she tested the gate by pushing it, and when it yielded, the dog jumped out and attacked her. When Mr. Sison who was napping at that time heard the commotion, he immediately came to Marys aid, brought her to a clinic and paid for her medical expenses.

The controversy arose when you asked Mr. Sison to pay for the damages suffered because of the dog attack. However, Mr. Sison made it clear in his letter that he is not liable for damages since there was a sign on his gate indicating the presence of the dog and Mary had failed to heed the said sign. Further, he insinuated that the attack was your fault since you let your child roamed outside without an escort. Thus, the meat of the issue lies on whether or not Mr. Sison is liable for damages. It is submitted that, Mr. Sison is liable for damages based on quasidelict as defined by Article 2176 of the New Civil Code (NCC):
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 pre-existing contractual relation between the parties, is called quasi-delict xxx

It is apparent that Mr. Sison was negligent when he took a nap and left his gate unlocked, knowing fully well that there was a dog in his premises. Had he locked the gate, the dog would not have been able to jump out and attacked Mary. Mr. Sison may argue that he exercised due diligence by the fact that there was a sign on the gate as a caution of the presence of the dog.

Legal Opinion No. 2 Legal Writing

PAGE 2

However, despite the warning, Mr. Sison should not have left his gate unlocked as the sign may not deter his customers from coming in and buying ice candies. A reasonably prudent man exercising due diligence should have the foresight to expect that some customers, especially very young ones, may not have the ability to read the sign. Moreover, by virtue of Article Art 2183 of the NCC;
The possessor of an animal or whoever may make use of the same is responsible for the damage which it may cause, although it may escape or be lost. This responsibility shall cease in case the damage should come from force majeure or from the fault of the person who has suffered damage.

The aforementioned article clearly states that as a possessor, Mr. Sison is responsible for the damage the animal has caused. The fact that the dog has never bitten anyone is of no moment since an animals past actions is not a prediction of its future actions. Well entrenched is the ruling that he who possesses animals for his utility, pleasure or service must answer for the damage which such animal may cause. However, Mr. Sison may contend that he has no responsibility for damages since he imputes fault on Mary and by virtue of Article 2179 (NCC) which states:
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.

He may alleged that since Mary was the one who came to his house, unaccompanied by any adult, there was negligence on your part which was the proximate cause of Marys injuries. To address this contention, we look into the case of Jarco Marketing Corporation v. Court of Appeals where the Court ruled that a child under nine years of age must be conclusively presumed incapable of contributory negligence as a matter of law. This ruling completely absolves Mary of any fault attributable to her, thus, enabling her to recover damages. Finally, the damages referred to in this case are not only actual damages but also moral damages as enumerated in Article 2219 of the Civil Code. We hope to have enlightened you on this matter.

Respectfully,

AVRIL REINA O. TALINGTING MARY JULIETTE M. ARAGON RONALD BRIGIDO B. HOLLANES