NAME : BERNAL, LOVELY MAY CALIBUSO

SUBJECT : LEGAL RESEARCH AND WRITING II

DATE : JANUARY 25, 2017

THE CASE OF A CHILD AND A NEIGHBOR’S DOG

Article 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.
(1905)

Article 2179. When the plaintiff's 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 defendant's lack of due care, the plaintiff may recover damages, but the
courts shall mitigate the damages to be awarded. (n)

Article 2219. Moral damages may be recovered in the following and analogous cases: (1) A criminal
offense resulting in physical injuries; (2) Quasi-delicts causing physical injuries; (3) Seduction, abduction,
rape, or other lascivious acts; (4) Adultery or concubinage; (5) Illegal or arbitrary detention or arrest; (6)
Illegal search; (7) Libel, slander or any other form of defamation; (8) Malicious prosecution; (9) Acts
mentioned in article 309; (10) Acts and actions referred to in articles 21, 26, 27, 28, 29, 30, 32, 34, and
35.

Article 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 issue here is clear: it¶s whether or not Arthur is liable to Mary for damages. In myopinion, Arthur is
liable for damages notwithstanding his defenses. First and foremost, whathappened to Mary is classified
as a
quasi-delict
, as defined by Article 2176 of the Civil Code:Whoever by act or omission causes damage to another,
there being fault or negligence, isobliged to pay for the damage done. Such fault or negligence, if there is
no pre-existingcontractual relation between the parties, is called a quasi-delict and is governed by
the provisions of this Chapter.

As for the nature of Arthur¶s liability, the provision that governs is Article 2183 of theCivil Code. It
provides that:The possessor of an animal or whoever may make use of the same is responsible for
thedamage which it may cause, although it may escape or be lost. This responsibility shallcease only in
case the damages should come from force majeure from the fault of the person who has suffered
damage.

The Supreme Court explained said provision in the case of

V
estil v. Intermediate Appellate Court (G.R. No. 74431, 179 SCRA 47)
, saying that:According to Manresa, the obligation imposed by Article 2183 of the Civil Code is not based
on the negligence or on the presumed lack of vigilance of the possessor or user of the animal causing the
damage. It is based on natural equity and on the principle of socialinterest that he who possesses animals
for his utility, pleasure or service must answer for the damage which such animal may cause. Now, Arthur
may say that what happened was brought about by contributory negligenceon Mary¶s part as the former
implied in his letter, or he may claim that letting Mary roam thevicinity unaccompanied is negligence on
your part and constitutes the proximate cause of her injuries, notwithstanding his own negligence in
leaving the gate unlocked before napping. Bothscenarios are governed by Article 2179 of the Civil Code
that provides:When the plaintiff¶s own negligence was the immediate and proximate cause of hisinjury,
he cannot recover damages. But if his negligence was only contributory, theimmediate and proximate
cause of the injury being the defendant¶s lack of due care, the plaintiff may recover damages, but the
courts shall mitigate the damages to be awarded.

In the first scenario, the Supreme Court¶s ruling in

Jarco Marketing Corporation v. Court of Appeals (G.R. No. 129792, 321 SCRA 375)
that ³a child under nine years of age must beconclusively presumed incapable of
contributory negligence as a matter of law´ covers Mary,hence throwing the notion of
contributory negligence on her part out the window. As for thesecond scenario, the
ruling in
Umali v. Bacani (G.R. No. L-40570, 69 SCRA 263)
provides that parental negligence in allowing a young child to go out of the house alone
may at most qualify ascontributory negligence and as such would be covered by the
second sentence of Article 2179.

Arthur, being the owner of the dog that attacked Mary, is liable for damages, with
all possible defenses taken into consideration. If Arthur didn¶t leave the gate unlocked
before takinga nap ± an act showing a lack of due care ± there would have been no way
the dog could haveattacked Mary. Mary could test the gate all day long and she
wouldn¶t be attacked by Arthur¶sdog had the gate been closed. Of course, he may say
that paying Mary¶s medical bill should beenough, but that does not cover the moral
damages that Mary is entitled to under Article 2219 (2)of the Civil Code, which
specifically pertains to quasi-delicts causing physical injuries. Asmentioned earlier, the
only reprieve due him would be a mitigation of his liability.

One thing: my opinion is based on the laws and the jurisprudence applicable to your situation. If by any
circumstance you take your plight to court, I am confident that the case will be decided in your favor.

Negligence is defined as the failure to exercise the standard of care that a reasonably
prudent person would have exercised in a similar situation. Janssen Pharmaceutica v. Silayro, G.R. No.
172528, February 26, 2008, 546 SCRA 628

Negligence is 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 Supreme Court stated the test of negligence in
the landmark case Picart v. Smith as follows:
The test by which to determine the existence or negligence in a particular case may be stated as
follows: Did the defendant in doing the alleged negligent act use that reasonable care and
caution which an ordinary person would have used in the same situation? If not, then he is
guilty of negligence. The law here in effect adopts the standard supposed to be supplied by the
imaginary conduct of the discreet paterfamilias of the Roman law. The existence of negligence
in a given case is not determined by reference to the personal judgment of the actor in the
situation before him. The law considers what would be reckless, blameworthy, or negligent in
the man of ordinary intelligence and prudence and determines liability by that. (Underscoring
supplied)
The test of negligence is objective. We measure the act or omission of the tortfeasor with that of
an ordinary reasonable person in the same situation.

The RTC held that the proximate cause of the three-way vehicular collision
was improper parking of the prime mover on the national highway and the absence
of an early warning device on the vehicle, thus:

The court finds that the proximate cause of the incidents is the
negligence and carelessness attributable to the defendants. When the
trailer being pulled by the prime mover suffered two (2) flat tires at
Sumilihon, the prime mover and trailer were parked haphazardly, as the
right tires of the prime mover were the only ones on the sand and gravel
shoulder of the highway while the left tires and all the tires of the trailer
were on the cemented pavement of the highway, occupying almost the
whole of the right lane on the direction the prime mover and trailer were
traveling. The statement of Limbaga that he could not park the prime
mover and trailer deeper into the sand and gravel shoulder of the
highway to his right because there were banana plants is contradicted by
the picture marked Exhibit F. The picture shows that there was ample
space on the shoulder. If defendant Limbaga was careful and prudent
enough, he should have the prime mover and trailer traveled more
distance forward so that the bodies of the prime mover and trailer would
be far more on the shoulder rather than on the cemented highway when
they were parked. x x x The court has some doubts on the statement of
witness-driver Limbaga that there were banana trunks with leaves and
lighted tin cans with crude oil placed 3 strides in front of the prime
mover and behind the trailer because the testimonies of witnesses
Rogelio C. Ortiz, driver of the ice van, Romeo D. Catamora, helper of
the ice van, and Police Traffic Investigator SPO3 Teofilo M. Pame show
that there were no banana trunks with leaves and lighted tin cans at the
scene of the incident. But even assuming that there were banana trunks
with leaves but they were placed close to the prime mover and trailer as
they were placed 3 strides away which to the mind of the court is
equivalent approximately to 3 meters and with this distance, approaching
vehicles would have no sufficient time and space to make a complete
stop, especially if the vehicles are heavy and loaded. If there were
lighted tin cans, it was not explained by the defendants why the driver,
especially driver witness Ortiz, did not see them.

Article 2176 of the Civil Code provides that 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. To sustain a claim based on quasi-delict, the
following requisites must concur: (a) damage suffered by plaintiff; (b)
fault or negligence of defendant; and (c) connection of cause and
effect between the fault or negligence of defendant and the damage
incurred by plaintiff.[16] Philippine Bank of Commerce v. Court of Appeals, G.R. No.
97626, March 14, 1997, 269 SCRA 695, 702-703.