Leonelle Mojal-Infante LEGAL WRITING-February 22,2013 Annulment of Marriage Page 1 of 6
Republic of the Philippines METROPOLITAN TRIAL COURT National Capital Judicial Region Manila, Branch 1 PETER BANAG, Plaintiff, CIVIL CASE NO. 2436
- versus ARTHUR SISON, Defendant, x----------------------------------x
PLAINTIFF’S MEMORANDUM
PLAINTIFF, by counsel, respectfully submits its memorandum in the case: The Case Plaintiff, Peter Banag filed this action against defendant Arthur Sison, for the injuries that his daughter, Mary suffered due to the latter’s dog attack and bites. 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 Peter Banag, the plaintiff is the father of Mary. Mary who is six years old went to Arthur Sison’s house to buy icecandies. Fred Puzon, a concerned neighbor testified for the plaintiff that he personally saw the following incident:
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That, at around 3:00PM of September 12, Fred saw Mary approached Arthur's gate and knocked to buy ice-candies. When nobody responded, she tested and tried to push the gate and it yielded. The dog jumped out and attacked her from behind as she turned and ran to leave, biting her on the legs and arms as she fell to the ground. Fred come into rescue by kicking the dog away, stood and protected her from further dog attacks, as the dog continued barking as if ready to attack again. Arthur, came out of his house and sent his dog into his yard. He picked Mary up and brought Mary to a nearby clinic for treatment. The defendant, Arthur Sison who is the owner of the icecandy store and the dog alleged that he cannot grant the demand of the plaintiff to pay Php 20,000.00. He claims that he should not be blamed for the accident that happened to Mary, pointing out that he had exercised proper diligence in making its premises safe for its customers by putting a warning sign at the gate and that the accident was something Mary and her parents had contributed to the cause of the accident should any adult had accompanied the child in going outside their home. Sison further stated that he was the one who brought Mary to the nearby clinic for treatment and paid the medical bills. The Issues 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 plaintiff is entitled to the damages that he is claiming for. Arguments I.
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ARTHUR SISON DID NOT EXERCISED PROPER DILIGENCE IN MAKING ITS PREMISES SAFE FOR ITS CUSTOMERS. Sison on his letter addressed to Peter Banag, (Exh. “A”) admitted that he has been selling ice-candies at the gate of his house but further claims that his gate has an automatic closer. However, he also admitted that at times he would left the gate unlocked from the inside for his children coming in and out. In the case of Philippine National Construction Corporation v. Court of Appeals, G.R. No. 159270, August 22, 2005, 467 SCRA 569; “Negligence has been defined as the failure to observe for the protection of the interests of another person that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury. The elements of simple negligence: are (1) that there is lack of precaution on the part of the offender; … 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… xxx xxx xxx First, in the above scenario, considering that Arthur was selling ice-candies, it is well-established that majority of his market are obviously kids in the neighborhood. However, at the time the accident happened, Arthur lacks prudence when for his own convenience, left his gate unlocked so that when his kids gets in and out of his house, his nap will not be distracted. Arthur, being also a father would have thought of how kids in the neighborhood can freely roam around the area.
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Buying simple stuff from a nearby small stores like his is just but normal. When he thought of taking a nap, it is most likely that he wanted to have a complete rest; that is why he had left the gate open just in case his kids will need to go in and out of his gate. 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 above precautionary measures was not done nor considered. Thus, Arthur was negligent in maintaining his premises safe for his customers. II. NO CONTRIBUTORY NEGLIGENCE ON THE PART OF MARY AND HIS PARENTS. First, on Arthur’s argument about the written warning about the presence of the dog does not suffice the fact that he indeed was exercising utmost precautions. In the book of Philippine Law on Torts and Damages vol. 2 by J. Cesar S. Sangco on page 10 reads the “wild beast theory”: “In England a similar principle is laid down in Ryland v. Fletcher, where justice Blackburn said: “We think that the rule of law is, that the person who for his own purposes brings on his land collects and keeps there anything likely to do mischief, if it escapes must keep it at his peril, and if, he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape”…
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In the doctrine of the wild beast theory, it is said to be an absolute liability thus, unnecessary for the plaintiff to prove that negligence was contributory. Thus, the defense of defendant for taking all possible precaution is futile. Furthermore, let us suppose we will accept the fact that there was a sign on the gate, sign is not enough if the dog itself is on the loose and can just attack anyone at any rate. Second, on the argument that Mary would have been accompanied by an adult in going out of their home, thus her parents has no right to claim for damages due to contributory negligence,
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PRAYER WHEREFORE, it is respectfully judgment issue against the defendant:
prayed
that
1. Declaring null and void the marriage contract entered into by and between plaintiff and defendant on June 5, 2013, before the Municipal City of Manila, Philippines. Manila, Philippines. February 21, 2013.
Atty. Jun del Cruz Counsel for Plaintiff Roll No. 1234. IBP Receipt No. 56487 Ptr.No. 876 MCLE Comp. No.765 Infante Law and Associates 234 ABC Bldg., Taft Ave., Manila, Philippines Email:
[email protected] Telephone No. : 9876003 VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING VERIFICATION JANINA DELA CRUZ, subscribing under oath, hereby deposes and states that:
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I am the petitioner in the instant case. I have read the foregoing Petition and the allegations therein are true and correct of my own knowledge and/or based on the records on hand. I attest to the authenticity of the annexes thereof.
CERTIFICATION I certify that: a. I have not commenced any other action or proceeding involving the same issues in the Supreme Court, the Court of Appeals, or different Divisions thereof, or any other tribunal or agency. b. No such action or proceeding is pending in the Supreme Court, the Court of Appeals, or different Divisions thereof, or any other tribunal or agency. c. If I should learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or different Divisions thereof, or any other tribunal or agency, I hereby undertake to notify this Honorable Court within five (5) days from such notice. _____________________ JANINA DELA CRUZ
Doc. No. 123 Page No. 435 Book No. 098 Series of 2013
