December 10, 2010 Mr. Peter Banag 16 Annapolis St.Cubao, Quezon City Dear Mr.

Banag: Here is the opinion you requested. The facts, gathered from you and your documents, areas follows: Your daughter, Mary Banag, about six years old, went to Arthur Sisons house to buy ice-candy on September 12 at about 3 PM. Mary knocked on the gate, but having gotten no response from Arthur who was napping then, she tested the gate by pushing it. Upon doing so, the gate yielded and Arthurs dog jumped out, went after Mary and attacked her from behind, biting her on the leg and arms as she fell to the ground. She was saved by Fred Puzon, a neighbor, who kicked the dog away and protected her. Awakened by the commotion and having heard shouts that his dog had attacked a child, Arthur went out, sent the dog back to his yard and bought Maryto a nearby clinic for treatment, paying the medical bill thereafter. You asked Arthur to pay MaryP20,000 in damages for the ordeal but all you got was a letter saying that he cannot grant your demand because he was not at fault. He based his stand on the following: 1. 2. That there was a sign at the gate warning about the presence of the dog, in effect implying that if Mary heeded what the sign says, the attack wouldnt have happened That at the time of the attack she was not accompanied by an adult, impliedly putting the blame on you as her parent for letting her roam outside unattended and therefore exposing her to danger; and That he already paid the bill for Marys medication.

3.

The issue here is clear: its whether or not Arthur is liable to Mary for damages. In my opinion, Arthur is liable for damages notwithstanding his defenses. First and foremost, what happened 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, 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. As for the nature of Arthurs liability, the provision that governs is Article 2183 of the Civil Code. It provides that: 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 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 Vestil 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 no tbased 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 social interest 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 negligence on Marys part as the former implied in his letter, or he may claim that letting Mary roam the vicinity 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. Both scenarios are governed by Article 2179 of the Civil Code that provides: 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, but the courts shall mitigate the damages to be awarded. In the first scenario, the Supreme Courts ruling in Jarco Marketing Corporation v. Court of Appeals (G.R. No. 129792, 321 SCRA 375) that a child under nine years of age must be conclusively 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 the second 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 as contributory 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 didnt leave the gate unlocked before taking a nap an act showing a lack of due care there would have been no way the dog could have attacked Mary. Mary could test the gate all day long and she wouldnt be attacked by Arthurs dog had the gate been closed. Of course, he may say that paying Marys medical bill should be enough, 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. As mentioned 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 you situation. If by any circumstance you take your plight to court, I am confident that the case will be decided in your favour. Very truly yours, Name of lawyer