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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, are
as follows:

Your daughter, Mary Banag, about six years old, went to Arthur Sison’s 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 Arthur’s 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 Mary
to a nearby clinic for treatment, paying the medical bill thereafter. You asked Arthur to pay Mary
P20,000 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. 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 wouldn’t have
happened
2. 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
3. That he already paid the bill for Mary’s medication.

The issue here is clear: it’s 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 Arthur’s 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 not
based 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 Mary’s 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 plaintiff’s 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 defendant’s 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 Court’s 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 didn’t 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 wouldn’t be attacked by Arthur’s
dog had the gate been closed. Of course, he may say that paying Mary’s 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 your
situation. If by any circumstance you take your plight to court, I am confident that the case will
be decided in your favor.

Very truly yours,

Emile Justin P. Cebrian

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