August 10, 2012 Mr. James James 254 Fernandez St.

Puerto Princesa City

Dear Mr. James: Here is the opinion that you have requested. The facts, gathered from you, are as follows: Your 12-year-old son, James, is playing in the house of his friend John who is also a minor aged 10 years old. John got a hold of his parents gun. Mistaking it for a toy gun, John playfully pointed it at James and pulled the trigger. James died from the shot. Because of the untimely death of your beloved child, you then sought my legal advice as to what action should be taken. The issue here is clear: whether or not John and/or his parents are liable for the resulting death of your son James. In my opinion, John cannot be held liable for a criminal offense since Section 6 of the Juvenile Justice and Welfare Act, which repealed paragraph 2 of Article 12 of the Revised Penal Code, exempts minors 15 or below from criminal liability. At the very least, what John has done was a tortious act as defined in Article 2176 of the Civil Code. John, therefore, shall only undergo an intervention program in accordance with Section 6 and 20 of the Juvenile Justice and Welfare Act. Section 6 of the said law and Art. 100 of the Revised Penal Code, however, hold that exempted minors who have acted without discernment are still civilly liable. Furthermore, Article 101 of the Revised Penal Code states that civil liability of minor offenders shall devolve upon those having such person under their legal authority or control, unless it appears that there was no fault or negligence on their part. Therefore, we can hold Johns parents civilly liable for any damages that arise from the death of your child James if we can show that there is negligence on their part that contributed to the tortious act of their child John. Article 2180 of the Civil Code states that the obligation imposed by Article 2176 providing for relief from tortious acts is demandable not only for ones own acts or omissions, but also for those of persons for whom one is responsible. In this case, the persons responsible for John are his parents as it is provided in Art. 221 of the Family Code that parents exercising parental authority shall be civilly liable for the injuries and damages caused by the acts or omissions of their unemancipated children living in their company and under their parental authority subject to the appropriate defenses provided by law. As the Supreme Court ruled in Exconde vs Capuno (G.R. No. L-10134), the only way for parents to relieve themselves of liability arising from the tortious acts of their child is to prove that they exercised all the diligence of a good parent of a family to prevent the damage caused by their minor son. The parents of John cannot invoke any defense to absolve them from fulfilling the civil liability required of them by the law. It is obvious that they are thoroughly negligent. First, they failed to exercise due care and diligence when they did not conceal their gun so as to render it inaccessible to their child. Secondly, they should have made sure that the gun is not loaded so that even if their child found it, there will be no chance that he will be able to discharge it. Thirdly, as part of their duty as parents enumerated in Art 220 of the Family Code, they should have instructed their child not to play with a real gun much less point it at his playmate. As a final note: 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. Very truly yours,

Atty. Ryan P. Acosta