Republic of the Philippines

METROPLITAN TRIAL COURT

National Capital Judicial Region
Branch _____, Manila

PETER BANAG,
Plaintiff,
Civil Case No. _____________
For Damages
- versus -

ARTHUR SISON,
Defendant,
x-----------------x

DEFENDANT’S MEMORANDUM

DEFENDANT, through his counsel, unto this Honorable Court, respectfully

submits this memorandum, to wit:

The Case

Plaintiff Peter Banag is filing this action against the defendant, Arthur
Sison, for injuries sustained by Mary Banag, his daughter, due to the attack and
bites from the defendant’s dog. Mr. Banag claims Php 20,000.00 damages
against Mr. Sison for the psychological and emotional trauma and pain that his
daughter suffered.

The Facts

At around 3:00PM of September 12, while Arthur Sison is taking his

afternoon siesta, he was awaken by the commotion outside of his house. He saw
Mr. Puzon rescuing Mary from further dog attacks, as the dog continued barking
as if ready to attack again.

The defendant, Mr. Sison, sent his dog into his yard. He picked Mary up
and brought Mary to a nearby clinic for treatment. He paid all the medical bills
and waited for Mary’s mother to console the child.
Memorandum of the Defendant
Page 2 of 6

The plaintiff demanded from the defendant damages for the psychological
and emotional trauma and pain that his daughter have suffered amounting to
Php 20,000.00. The defendant Mr. Sison,being the owner of the ice candystore
and the dog, alleged that he cannot grant the demand of the plaintiff as he
should not be blamed for the accident that happened to Mary. The defendant
pointed out the following:
1. That he exercised due diligence in making its premises safe for its
customers, by putting a warning sign at the gate.
2. The accident was due to the fault of Mary and her parents, that the child
must be accompanied whenever she goes outside their home.
3. that he was the one who brought Mary to a nearby clinic for treatment
and the one who paid for the child’s medical bills.

The Issues

1. Whether or not the defendant,Arthur Sison, exercised due diligence

inmaking its premises safe for its customers;
2. Whether or not Mary’s accident was through her owncontributory
negligence;and
3. Whether or not the plaintiff, Peter Banag, is entitled to the damages that
he claims.
Memorandum of the Defendant
Page 3 of 6

Arguments

I.
ARTHUR SISON EXERCISED DILIGENCE THAT IS DUE IN MAKING
ITS PREMISES SAFE FOR ITSCUSTOMERS.

The defendant Arthur Sison, in his letter addressed to the plaintiff Peter
Banag, (Exhibit “A”)admitted that he has been selling ice candies at hishouse but
further claims that his gate has an automaticcloser.

Under 1173 of the Civil Code negligence is defined as “The omission of

that degree of diligence which is required by the nature of the obligation and
corresponding to the circumstances of persons, time and place.”
The burden of proof lies with the plaintiff to s
The case of Abrogar, et al. v. Cosmos Bottling Company, G.R. No. 164749,
March 15, 2017, in citing Picart v. Smith, 37 Phil. 809:

“The test by which to determine the existence of negligence

in a particular case may be stated as follows: Could a prudent man,
in the case under consideration, foresee harm as a result of the
course actually pursued? If so, it was the duty of the actor to take
precautions to guard against that harm. Reasonable foresight of
harm, followed by the ignoring of the suggestion born of this
prevision, is always necessary before negligence can be held to
exist.Conduct is said to be negligent when a prudent man in the
position of the tortfeasor would have foreseen that an effect
harmful to another was sufficiently probable to warrant his
foregoing the conduct or guarding against its consequences. x
x x”

Here, considering that the defendant was selling ice candies, it is well-
established that his target market are children in the neighborhood. Being a
father himself, Mr. Sison would have thought of how kids in the neighborhood
can freely roam around the area.However, at the time of the mishap, the
defendant lacked prudence when for his own convenience, he left his gate
unlocked so that when his childrenwent in and out of his house, his afternoon
nap will not be easily interrupted.If he was prudent enough, he should have
thought of either closing his store for a while or at least to put the dog on a
secured cage or bind the dog to a safe place. Here, neither of the precautionary
Memorandum of the Defendant
Page 4 of 6

measures mentioned above was not done nor considered. Therefore, Arthur was
negligent in maintaining his premises safe for his customers.

II.
CONTRIBUTORY NEGLIGENCE IS PRESENT ON THE PART OF
MARY AND HIS PARENTS.

In Vda. de Bataclan v. Medina, 102 Phil. 181 (1957), citing 38 Am. Jur.
695-696 proximate cause is defined as that cause, which, in natural and
continuous sequence, unbroken by any efficient intervening cause, produces the
injury, and without which the result would not have occurred. More
comprehensively, proximate cause is that cause acting first and producing the
injury, either immediately or by setting other events in motion, all constituting a
natural and continuous chain of events, each having a close causal connection
with its immediate predecessor, the final event in the chain immediately effecting
the injury as natural and probable result of the cause which first acted, under
such circumstances that the person responsible for the first event should, as an
ordinarily prudent and intelligent person, have reasonable ground to expect at
the moment of his act or default that an injury to some person might probably
result therefrom.

The proximate cause of the accident was due to the failure of

Mary’s parents to assist her, in her tender age to roam around the
neighborhood.

Under Article 2176 of the Civil Code provides for an answer:

Art. 2179. When the plaintiff’s own negligence was the

immediate andproximate 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.

In Jarco Marketing Corporation v. Court of Appeals, G.R. No. 129792,

December 21, 1999the Supreme Court ruled: “that a child under nine years of
Memorandum of the Defendant
Page 5 of 6

age must be conclusively presumed incapable of contributory negligence as a

matter of law.” It is clear that Mary is only 6 year old child, however, it is a
parental duty to take care of their children and to protect them from any harm.
Mary’s parents contributed negligently in the accident of their child

Also, in Umali v. Bacani, G.R. No. L-40570, January 30,1976, 69 SCRA

263, it provides that: “parental negligence in allowing a young child to go out of
the house alone may at mostqualify as contributory negligence and as such
would be covered by the second sentence of Article 2179.”

III.
PETER BANAG IS NOT ENTITLED TO THE FULL AMOUNT OF
DAMAGES.

Article 2202 of the Civil Code lists the damages that the plaintiffs in a suit
upon crimes and quasi-delicts can recover from the defendant, viz.:

Art. 2202. In crimes and quasi-delicts, the defendant shall be liable

for all damages which are the natural and probable consequences
of the act or omission complained of. It is not necessary that such
damages have been foreseen or could have reasonably been
foreseen by the defendant.

It is true that the defendant Mr. Sison that pays Mary’s medical bill should
be enough. Moral damages that Mary is entitled to under Art. 2219 of the Civil
Code may be recovered in the following analogous cases:(1) A Criminal offense
resulting in physical injuries; and (2) Quasi-delicts causing physical injuries.

The defendant, Arthur Sison shows care and responsibility when he

transfer the child in the nearest medical clinic and paid all the medical bills and
other needs that the child might be needed at the time of the accident thus
under the Anti Rabbis Act 9482 Section 5,- “Responsibilities of the owner:
xxxxxxx (f) Assist the Dog bite victim immediately and shoulder the medical
expenses incurred and other incidental expenses relative to the victim’s injuries.”
Arthur Sison’s complied what the law demanded him to do as a responsible dog
owner.
Memorandum of the Defendant
Page 6 of 6

WHEREFORE, defendant Arthur Sison respectfully prays the court to

render judgment:
1. Ordering that the defendant Arthur Sison be relieved from the
payment of plaintiff moral damages of Php 20,000.00 and attorney’s
fees and costs of the suit.
2. Plaintiff respectfully prays for such other reliefs as may be just and
equitable in the premises.

City of Manila, April 20, 2018.

PEDRO PENDUKO
Counsel for the Plaintiff
2nd Flr. Olympia Bldg.
Taft Avenue,City Manila
Atty. Roll No. 23456
IBP 7787674 12-21-18
PTR 545644 01-02-18
MCLE Compliance III-295
E-mail: pedropenduko@gmail.com

Copy furnished:

Atty. Juan dela Cruz

346 Pedro Gil St.
Manila

EXPLANATION

The foregoing Memorandum is being filed and served by registered mail

due to lack of personnel to effect personal filing and service.

PEDRO PENDUKO
Counsel for the Plaintiff

FELISSA MARIE PORTIN

TRIAL MEMORANDUM FOR ARTHUR SISON

LEGAL WRITING
ATTY. RONALD PAZ CARAIG
PCU COLLEGE OF LAW