Legal Opinion

Group 1
 Facts:
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.
 Legal Issue
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.
 Discussion of Opinion
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, imputable 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.
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.
 Word of Reservation
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.