Republic of the Philippines

Department of Justice
OFFICE OF THE CITY PROSECUTOR
Tacloban City

FEDERICO, CIVIL CASE NO. 821732

Plaintiff,

-versus-

HAPPY,
Defendant.
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TRIAL MEMORANDUM FOR PLAINTIFF

STATEMENT OF FACTS
In order that this honorable court may be enlightened and guided in the judicious
disposition of the above-entitled case, cited hereunder the material, relevant and
pertinent facts of the case to wit:

1. Plaintiff is Federico, 65 years old, widow and a resident of Mountain View Subdivision,
Antipolo, Rizal while defendant is Happy, 42 years old, housewife married and also a
resident of Mountain View Subdivision, Antipolo, Rizal;

2. Plaintiff and defendant have been neighbors for at least three years. Plaintiff alleges
that in the afternoon of October 25, 2010, a truck owned by the defendant's carpenter,
Gregorio Timbol, was parked in front of the defendant's on a street that was sloping. Mr.
Timbol has been working on the renovation of defendant's house. He has been a
carpenter for at least thirty five (35) years;

3. Just before the incident, plaintiff was taking a nap in his house when he noticed that
her dog, Trix was missing. He then looked around the house until she heard a crashing
bang and a dog crying out;

4. When the plaintiff went outside her gate, he saw Trix pinned under the wheel of the
truck. The truck was backed up against a tree by the sidewalk and Trix was thrashing
and squealing underneath the truck with blood coming out his mouth;

5. Plaintiff cried and screamed to Rodmar, her helper, and shouted for the guards who
roamed the subdivision, but no one came. Trix died soon after.

6. According to the plaintiff, Trix had been with her since his wife passed away eight
years ago.

7. Plaintiff observed that the truck had always been parked in front of the defendant’s
house since the time defendant's house was being renovated;
8. When the incident happened, defendant did not do anything except to call Mr. Timbol.
Defendant insisted that the truck was properly parked and what happened to Trix was an
accident and Mr. Timbol could not be faulted.

9. On the other hand, Mr. Timbol admitted that his truck was of an old model. He bought
it second hand and had it overhauled and repainted. He also admitted that, when he
parked it on the day the incident happened, he put 2 large rocks  against the back
wheels to make sure the truck does not roll back down the street;

10. Mr. Timbol finally admitted that when he looked at the scene after the incident
happened, the rocks were no longer there. He concluded that someone must have
removed them;

11. Plaintiff demanded that the defendant should give her another dog, but the latter
refused and insisted that what happened to Trix was plaintiff's fault because Trix should
have not been loose on te streets.

12. Defendant testified that Trix was a pesky dog and had complained about it many
times. In fact, it was because of Trix that the defendant met plaintiff for the first time 3
years ago. Defendant went to plaintiff's house to complain that Trix pulled out the plants
in the yard;

13. Defendant also mentioned that Trix would dig holes in her lawn. It would frequently
deposit its wastes on her driveway and also pee in front of her house, leaving a foul
smell. One time, Trix even chased her little girl along the road;

13. Defendant went to the extent of complaining the activities of Trix before the
Homeowner's Association, so that the latter issued a Board Resolution stating that
wandering dogs will be caught and brought to the municipal dog pound.

ISSUES:

1. WHETHER OR NOT THE PLAINTIFF COMMITTED A NUISANCE WHEN SHE

ALLOWED HER DOG TO ROAM THE STREETS OF THE SUBDIVISION.

2. WHETHER OR NOT THE CARPENTER WAS NEGLIGENT WHEN HE PARKED HIS

CAR IN FRONT OF THE HOUSE OF THE DEFENDANT

3. WHETHER OR NOT THE DEFENDANT MAY BE HELD LIABLE WHEN THE TRUCK
OF HER CARPENTER RAN OVER THE PLAINTIFF'S DOG

ARGUMENTS

1. Plaintiff committed a nuisance when she allowed her dog to roam the streets of the
subdivision because the dog endangered the safety of a resident of the subdivision. The
dog also caused annoyance and offended the senses of a resident inside the
subdivision.

Under the Civil Code, "A nuisance is any act, omission, establishment, business,
condition of property, or anything else  which: (1) Injures or endangers the health and
safety of others; or (2) Annoys or offends the senses; or (3) Shocks, defies or disregards
decency or morality; or (4) Obstructs or interferes with free passage of any public
highway or street or any body of water; (5) Hinders or impairs the use of property”

In the case at bar, the plaintiff allowed her dog to roam the streets of the subdivision
because it was ran over by a truck while on the street. Plaintiff's dog was not kept inside
any cage or in a leash because it could sleep in plaintiff's room, lie on the floor or be
found on defendant's yard. Plaintiff's dog was therefore free to move around freely.
When plaintiff's dog was roaming the streets of the subdivision, it endangered the
defendant's girl because it chased her on the street. Plaintiff's dog also caused
annoyance and offended the senses of defendant because it dug holes on defendant's
lawn, pulled out the plants in her yard and deposited wastes on her driveway or peed in
front of her house that left a very foul smell.

Therefore, the plaintiff committed a nuisance when she allowed her dog to roam on the
streets and yard of her neighbor because it endangered the defendant's girl. It also
caused annoyance and offended the senses of the defendant.

Furthermore, the New Civil Code provides that a "nuisance is either public or private. A
public nuisance affects the community or neighborhood or any considerable amount of
persons, although the extent of the annoyance, danger or damage upon individuals may
be unequal. A private nuisance is one that is not included in the foregoing definition."

Here, the nuisance maybe regarded as a private nuisance because it only affects an
identifiable number of persons. Specifically, the defendant, her family and her
surroundings.

2. The carpenter was negligent when he parked his car in front of the house of the
defendant because he failed to use that care and diligence expected of sensible men
under comparable circumstances.

In Isaac vs A.L. Ammen, the Supreme Court ruled that "where a carrier's employee is
confronted with a sudden emergency, the fact that he is obliged to act quickly and
without a chance for deliberation must be taken into account, and he is held to the some
degree of care that he would otherwise be required to exercise in the absence of such
emergency but must exercise only such care as any ordinary prudent person would
exercise under like circumstances and conditions, and the failure on his part to exercise
the best judgement the case renders possible does not establish lack of care and skill on
his part which renders the company, liable.

In this case, Mr. Timbol admitted that his truck was of an old model. He bought it second
hand and had it overhauled and repainted. He also admitted that, when he parked it on
the day the incident happened, he put 2 large rocks against the back wheels to make
sure the truck does not roll back down the street. Also, Mr. Timbol admitted that when he
looked at the scene after the incident happened, the rocks were no longer there. He
concluded that someone must have removed them.

Thus, it is concluded that the carpenter Mr. Timbol has not done what a prudent man
could have done to avoid the accident.
3. The defendant may be held liable when the truck ran over the plaintiff's dog because
he was the employer of the carpenter that committed negligent acts and which resulted
to damages against the plaintiff.

Article 2180 of the New Civil Code states that “Employers shall be liable for the damages
caused by their employees and household helpers acting within the scope of their
assigned tasks, even though the former are not engaged in any business or industry”

Once negligence on the part of the employee is established, a presumption instantly

arises that the employer was remiss in the selection and/or supervision of the negligent
employee. To avoid liability for the quasi-delict committed by its employee, it is
incumbent upon the employer to rebut this presumption by presenting adequate and
convincing proof that it exercised the care and diligence of a good father of a family in
the selection and supervision of its employees.

Unfortunately, however, the records of this case are bereft of any proof showing the
exercise by defendant of the required diligence in the selection and/or supervision of Mr.
Timbol.

PRAYER
WHEREFORE, it is respectfully prayed for of this Honorable Court that defendant pay
the value for the plaintiff’s dog.
It is likewise prayed for of this honorable court other and further relief as it may deem
just and equitable in the premises.

RALF ALVERO
Notary Public
Until December 31, 2021
ABC Building, Yes Street, Tacloban City
Roll of Attorneys No. 23587
IBP No. 822274; 01-01-21
PTR No. 3545692; 01-01-21
MCLE No. 001919; 01-05-20
Commission Serial No. 23