Republic of the PhilippinesREGIONAL TRIAL COURTNational Capital Judicial RegionQuezon City, Branch 123

Peter BanagPlaintiff,

-versus-

Arthur SisonDefendant

x------------------------------------------------------------x

DEFENDANTS MEMORANDUM

Defendant, by counsel, respectfully submits its memorandum in the case:

The Case

Plaintiff Peter Banag filed this action for declaratory relief and damages against defendant Arthur Sison claiming the Court needed to ascertain that the defendant must pay for the damages caused by the biting of the pet dog of the defendant because of Sisons negligence. In its answer, Arthur Sison claimed that he exercised due care and precautions. The plaintiff claimed for moral damage against Arthur Sison.

The Facts

Arthur Sison lived in 12 Annapolis Street, Cubao, Quezon City. He is engaged in the business of selling ice-candies. His ice-candies are sold at the gate when people came to buy. The gate had an automatic closer. But at times, Mr. Sison left it unlocked from the inside because his children often went in and out. Mr. Sisons gate carried a written warning about the presence of his dog, Prancer.

Mary is about six years old. Mary went to Arthur Sisons house to buy ice-candies. She approach to Arthur Sisons gate and knock on it but no one answered. Mary kept on knocking softly at the gate when no one answered. Arthur Sisons dog came out of the yard. As Mary tested the gate by pushing it, the gate yielded and the dog jumped out. Mary held the gate open and called in saying that she wanted to buy ice-candy. Pagbilan nga po ng ice candy, she said. The dog go after her from behind as she turned and ran to leave. Fred Puzon immediately ran to help Mary but unfortunately he tripped on the gutter and fell on his hands and knees. Mr. Puzon recovered quickly, moved on, and kicked on the dog away. The dog kept on barking and looked as if it would attack Mary and Fred Puzon.. Fred Puzon stood by to protect Mary from further attack of the dog. The dog did not attack Mary and Fred Puzon again because Arthur Sison came out of his house and sent his dog into his yard. Arthur Sison picked up Mary, called a tricycle ad brought her to a nearby clinic for treatment.

The Issues

1. WHETHER OR NOT SISON IS NEGLIGENT IN KEEPING HIS PET DOG FROM BITING BANAGS DAUGHTER.

2. WHETHER OR NOT SISON IS LIABLE FOR THE INJURIES SUSTAINED BY BANAGS DAUGHTER WHEN HIS PET DOG BIT THE LATTER.

3. WHETHER OR NOT SISON IS LIABLE TO PAY FOR MORAL DAMAGES.

Arguments

I

ARTHUR SISON IS NOT NEGLIGENT IN KEEPING HIS PET DOG FROM BITING BANAGS DAUGHTER.

Peter Banag claims that Arthur Sison is negligent to the incident happened on September 12, Saturday. Mr. Banag contends that Mr. Sison did not exercise degree of care, precaution, and vigilance in keeping his pet dog from biting Mr. Banags daughter. Nevertheless, The court ruled in Miranda vs Ignacio that Provocation is a legal defense used when after a provocative act the defendant loses control and commits a violent crime. Hence, the accuse will not be liable for any damages. Moreover, in Marzaledo vs. People the court ruled that a person is guilty of criminal trespass in the second degree whe he or she knowingly enters or remains unlawfully in a dwelling.

In the case at bar, the testimony of the witness shows that Mr. Sison gives much precaution on the existence of his pet dog. Furthermore, it is clearly stated in the testimony of the witness, Fred Puzon, that provocation came from Mr. Banagss daughter, Mary. Also, Mary trespass the premises of Mr. Sison on September 12. Thus:

Q: What did you see Mary doing from where you stood?

A: I saw Mary approach Arthurs gate and knock on it. But no one answered.

Q: So what did she do?

A: Still she kept on knocking softly at the gate.

Q: What happened next?

A: A young girl of her age passed by and Mary waived at her.

Q: So what happened next?

A: Arthurs dog came out of the yard. As Mary tested the gate by pushing it, the gate yielded and the dog jumped out.

The pet dog of Mr. Sison will surely not attack Mr. Banags daughter if she did not push, tested and yielded the gate of Mr. Sison. In addition, a written warning is placed on the gate of Arthur Sisons gate to remind the people approaching his house about the existence of his pet dog. Thus, it is expected that people who will buy ice candies to the house of Mr. Sison will exercise due care and precaution.

Therefore, Mr. Sison is not negligent in keeping his pet dog from biting Mary, Mr. Peter Banags daughter. Mr. Sison exercised due care and give precaution for the buyers of his ice candies. Yet, Mary did not mind the warning and provoked the pet dog to attack her.

II.

ARTHUR SISON IS NOT LIABLE FOR THE INJURIES SUSTAINED BY BANAGS DAUGHTER WHEN HIS PET DOG BIT THE LATTER.

The RA 9482 of the Philippines, Section 12 states that the owner of pets is not responsible for damages and acts committed by their pet when the victim provokes the pet to do such acts. Furthermore, the court ruled in Fullerton v. Conan that if a person opened a gate and wandered into the dog owners premises will be held not liable for the damages to the victim.

In the case of Mr. Banags daughter, it has been showed that Mr. Arthur Sison is not negligent in keeping his pet dog from biting Mary. Rather, Mr. Banags daughter, Mary, provoked the dog to attack her. Moreover, she also opened the gate without the permission of the owner of the premises and the dog.

Therefore, Mr. Sison cannot be held liable for the injuries sustained by Mr. Banags daughter when his pet dog bit the latter. However, because of Mr. Sisons pity on Mary, she paid for the medical bills for the treatment of the latter.

III.

ARTHUR SISON IS NOT LIABLE TO PAY FOR MORAL DAMAGES.

The law provides in the Civil Code of the Philippines, Article 2217 that Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendants wrongful act.

Accordingly, since it was proven that Arthur Sison is not negligent in the biting of his pet dog which caused damages and injuries to Mary, Mr Sison is not liable to pay moral damage. The law provides that moral damages shall be awarded if the injuries acquired are the proximate result of the defendants wrongful act. In this case, the defendant Mr. Arthur Sison did not commit any wrongful act.

To sum it up, Mr. Arthur Sison exercised due care and precautionary measures to make sure the safety of the people approaching his house from his pet dog. Thus, he is not negligent to the biting of the latter. However, the victim trespass on the premises of Mr. Sison and made provocation to the pet of the accused which caused the attacking of the dog. Therefore, Arthur Sison is not liable to pay for moral damage..