Mr.

Peter Banag
Cubao, Quezon City
September 2017

Dear Mr. Banag,

Here is the opinion that you requested.

The facts as we gathered fromyouand your witness are as follows.

Mary Banag, your daughter and is 6 years of age, went to your neighbor Arthur Sison at 12 Annapolis
Street to buy ice candies. However, no one attended to her when she called the owner. So she pushed
the gate slightly. A dog owned by Arthur Sison came out and attacked Mary. Mary was bitten on her leg
and arms and had it not for Fred Puzons help who happened to be on the same place she could have
suffered other physical injuries. Arthur Sison upon learning the incident went to Mary and brought her to
the hospital and shouldered the medical expenses.

Arthur Sison claims on the other hand that he should not be liable because he posted warning signs,
regarding hisdog and it is the negligence of Mary Banag and his parents on letting her go outside without
supervision that led to the incident and thathe also paidthe medical expenses of Mary.

The question you pose is whether or not you can claim damages suffered by your six year old daughter.
But we also considerit necessary to resolvefirst whether ornotArthur Sison is negligent, making it a
ground tohis liability.

Inour opinion Arthur Sison should beliable for damages, we based our opinion in the following discussion.

The Supreme Court in its decision in Algara vs Sandejas (27 Phil 284) provided for the requisites
of Quasi Delict:

1. There is damage or injury

2. There exist a wrong act or omission, impoutable to the defendant by reason of his fault or
negligence

3. There be direct cause and effect between the damage or injury and fault or negligence

4. There is no pre existing contractual relation.

The facts in this case satisfies that there was injuries suffered by Mary, as she was actually
brought to the hospital after the dog of Arthur Sison attacked her. The last requisite of no pre-existing
contractual obligation between the parties is evident and undisputable. There is also need to determine if
the facts will qualify to the second and first requisite in order to held Arthur Sison liable.

The relevant provision of the New Civil Code of the Philippines to establish negligence provides that:

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 pre-
existing contractual relation between the parties, is called a quasi-delict and is governed by the
provisions of this Chapter. (1902a)

The definition of negligence can be said as the conduct that creates undue risk or harm to
another. It is the failure to observe that degree of care, precaution and vigilance that the circumstances
justly demand, whereby that other person suffers injury. Also, negligence is that degree of care for the
protection of interest of another person.

In the landmark case of Picart vs. Smith (37 Phil 809), the test in determining whether a person is
negligent is Would a prudent man, in the position of the person to whom negligence id attributed, foresee
harm to the person injured as a reasonable consequence course about to be pursued?

Inferring from the facts and applying the above test, it cannot be denied that Arthur Sison was
negligent. First, by leaving the automatic closer of the gate unlocked that even a slight push from a six-
year old child, it would open. The defence that he leave this open because his children often go in and out
the gate would not cure the negligence of a person owning a freely roaming dog inside his yard and even
worse, to add, for a person who sells ice candies on his house. He should have thought of outcomes
similar to the present case as a consequence of leaving the gate unlocked. Secondly, by letting his dog
roam untied on his yard despite the fact that he sells therein, in his house, ice candies. He should have
been more mindful of the danger or injuries the may cause to his customers like what happened on your
daughter. Third, given the facts above about the dog and his business, he should have been more
watchful instead of napping on that afternoon. He should have considered that on that time of the day
where it is often hot outside, customers are likely to come to buy his ice candies. This negligent act
became critical on this case because, as per the witness, Mary had been calling and knocking on the gate
but no one came out because Sison was napping, Had he been awake that time, Marys repeated calls
would have not disturbed the dog and the latter could have not pushed the gate.

The Civil Code also provides:

Art. 2183. 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 only in case
the damage should come from force majeure or from the fault of the person who has suffered damage.

In one of the decisions of the US Supreme Court regarding negligence and liability of a dog owner it was held that
Dog owners were responsible for an attack by their Rottweiler, even though they had no knowledge that the dog
would be dangerous. The Court ruled that the owners were negligent because they should have known the general
propensities of Rottweilers which an expert witness at trial had described as very strong, aggressive and
unpredictable. (Hill v. Williams)

The third requisite of a quasi delict can now be established that negligence has been defined and is already qualified.
The negligence of Arthur on taking care and securing his dog was the proximate cause of the injury of Mary Banag.
Jurisprudence defines proximate cause as that which, in the natural and continuous sequence, unbroken by any
efficient, intervening cause, produces the injury, and without which the result would not have occurred. The cause of
the injury is traceable to the negligent act of Sison. Has it not for the unlocked gate, the untied dog, and the fact
that despite Mary calling out on Arthur, the former could have not suffered the attack and injury.

The defense of contributory negligence on the part of Mary Banag in untenable.

Art. 2179. 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 to but the courts shall
mitigate the damages to be awarded.

Article 2179 speaks of contributory negligence on the party of the plaintiff in which case the plaintiff may recover
damages but the court shall mitigate the damages to be awarded. It is therefore imperative to know the doctrine of
contributory negligence and its meaning. Contributory negligence is the act or omission amounting to lack of
ordinary care on the part of the person injured and the effect of which is that the defendant shall be liable only for
the actual damages caused by his negligence. In our jurisdiction a person nine years of age is conclusively
presumed to have acted without discernment and on that account exempt from criminal liability xxx such negligence
may be a felony or a quasi delict and requires discernment as a condition of liability.xxx (Jarco Marketing vs Ca, 321
SCRA 376).
Neither could Arthur Sison attribute you contributory negligence for letting Mary go outside without any escort. In the
Jarco Marketing case (supra), the mother of the child was justified as not negligent when she let her daughter
momentarily to roam the store that caused the child to be injured by the falling cabinet because her child was only
few feet away from the mother. In your case, it is reasonable to let your child to go out without any escort
considering that the house of Arthur Sison was on the same street and could only be few blocks away from your
house.

A word of reservation: The opinions herein stated are based on limited researches confined in Articles of the
New Civil Code, Jurisprudence, Comparative studies from cases ruled by the US Supreme Court and discussions on
law books. If you seek to subject this issue on a judicial proceeding we are duty bound to tell you that it would entail
hassle, expenses and risk of a judgment that is less to your expectation, but we are confident that the arguments in
this opinion will be given merit.

Let us know if we can be of further service to you in this matter.

Very truly yours,

____________________

(Group 1)