November 8, 2015

MR.PETER BANG

16 Annapolis St.,

Quezon City

Dear Mr. Banag:

This letter is with reference to your query on the liability of Mr. Arthur Sison as owner of the dog

that attacked your daughter. It is our understanding that you are seeking for a legal opinion regarding the

ordeal of your daughter who was attacked by your neighbor’s dog thereby inflicting injuries on her.

Based on the narration of your eyewitness, Fred Puzon, and the letter of Arthur Sison, the facts

are culled as follows:

“That on September 12, 2010 at around 3 in the afternoon, your six year old daughter, Mary, went to Arthur Sison·s

house to buy ice candies. She was knocking on the gate but since nobody answered, she tested the gate

by pushing it, and when it yielded, the dog jumped out and attacked her. When Mr. Sison who was

napping at that time heard the commotion, he immediately came to Mary’s aid, brought her to a clinic

and paid for her medical expenses.”

The controversy arose when you asked Mr. Sison to pay for the damages suffered because of the

dog attack. However, Mr. Sison made it clear in his letter that he is not liable for damages since there was

a sign on his gate indicating the presence of the dog and Mary had failed to heed the said sign. Further, he

insinuated that the attack was your fault since you let your child roamed outside without an escort.

Based on the foregoing facts, we noted that the main issues are the following:

1. Whether or not Arthur Sison exercised proper diligence in making its premises safe for its

customers.

2. Whether or not Mary’s accident was through her own contributory negligence.

3. Whether or not the Arthur Sison is liable for damages.

Our position:

For the first issue, no, Mr. Sison did not exercise proper diligence. In Philippine National

Construction Corporation vs Court of Appeals G.R. No. 159270, August 22, 2005, 467 SCAR 569, the

standard test in determining whether a person is negligent in doing an act whereby injury or damage

results to the person or property of another is this: could a prudent man, in the position of the person to

whom negligence is attributed, foresee harm, to the person injured as a reasonable consequence of the

course actually pursued? If so, the law imposes a duty on the actor to refrain from that course or to take

precautions to guard against its mischievous results, and the failure to do so constitutes negligence.

The precautionary measure mentioned above was not done by Arthur Sison. He left the gate

opened for the purpose of not being interrupted during his nap. If he was cautious enough, he would have

thought of closing his store for a while or at least put a leash on the dog before he took a nap. Also, being

in the business of selling ice-candies, it is safe to say that most of his customers are children, even with

the written war on the gate about the presence of a dog, customers especially the very young ones may

not yet have the ability to read rendering the written warning rules. Thus, Mr. Sison was negligent in the

lack of precaution to maintain his premises safe for his customers.

For the second issue, no, Mary is incapable of contributory negligence. In Jarco Marketing vs

Court of Appeals, G.R. No. 129792, December 21, 999, 321 SCRA 375, the Court ruled that a child under

nine (9) years of age must be conclusively presumed incapable of contributory negligence as a matter of

law. However, in Umail vs Bacani G.R. No. L-40570, January 30, 1976, 69 SCRA 263, the Court ruled

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. Thus, Mr.

Banag may recover damages for his daughter but the damages to be awarded shall be mitigated by the

Court.

For the last issue, yes, Mr. Sison is liable for actual and moral damages. Based on Art. 2219 of

the Civil Code, It is submitted that, Mr. Sison is liable for damages based on quasi-delict as defined by

Article 2176 of the New Civil Code (NCC):

“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 quasi-delict xxx”

It is apparent that Mr. Sison was negligent when he took a nap and left his gate unlocked,

knowing fully well that there was a dog in his premises. Had he locked the gate, the dog would not have

been able to jump out and attacked Mary. Mr. Sison may argue that he exercised due diligence by the fact

that there was a sign on the gate as a caution of the presence of the dog.

We hope the foregoing assists in your concerns..

Respectfully,

Atty. Gianna B. Cantoria

Atty. Jennelyn Cayanan

Atty. Jordan Fresco

Atty. Salvador Grajo Jr