LUZ DIAZ

Plaintiff,

-versus-

EMMA CRISOSTOMO
Defendant

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MEMORANDUM
for the Defendant

COMES NOW THE DEFENDANT, through the undersigned counsel, unto this Honorable
Court most respectfully submits and presents this Memorandum in the above-titled case to show that she
is not guilty.

STATEMENT OF THE CASE

This is a civil case for the recovery of damages filed by Luz Diaz against Emma Crisostomo for
the incident that happened on October 25, 2010 that resulted to the death of the former’s dog.

STATEMENT OF FACTS

Defendant is Emma Crisostomo, forty two (42) years old, housewife married and also a resident
of Mountain View Subdivision, Antipolo, Rizal while; Plaintiff is Luz Diaz, sixty five (65) years old,
widow and a resident of Mountain View Subdivision, Antipolo, Rizal. They have been neighbors for at
least three (3) years.

It was alleged by the plaintiff that, on October 25, 2010 while she was taking a nap in her house
when she noticed that her dog, Trix was missing. She then looked around the house until she heard a
crashing bang and a dog crying out. When the plaintiff went outside her gate, she saw Trix pinned under
the wheel of the truck. She cried and screamed to Nilda, her helper, and shouted for the guards who
roamed the subdivision, but no one came. She could not save him even if she wanted to because there was
no one in the truck's driver seat and she does not know how to drive. She could only cry and scream while
Trix kept on howling until it stopped moving and died soon after.
 According to the plaintiff, Trix had been with her since her husband passed away eight years ago
and 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. 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 two (2) large rocks against the back wheels to make sure the truck
does not roll back down the street. 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.

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 the
streets.

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 three (3) years ago. She went to
plaintiff's house to complain that Trix pulled out the plants in the yard. She 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. She even 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.

STATEMENT OF 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 defendant may be held liable when the truck of her carpenter ran over the
plaintiff's dog?
ARGUMENTS

I. The plaintiff committed a nuisance when she allowed her dog to roam the streets of the
subdivision.
 Under Article 694 of the Civil Code a nuisance is any act, omission, establishment,
business, condition of property, or anything else which:(1) Injures or endangers the
health or 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 the free
 passage of any public highway or street, or any body of water; or (5) Hinders or
impairs the use of property. By letting her dog to roam the streets of the subdivision
she injures or endangers the health and safety of others as what happened to the
daughter of the defendant when it was chased by the said animal. Clearly it also
annoyed and offended the senses of the defendant as explained by its act of
complaining to the Home Owners Association.

II. There is no fault nor negligence on the part of the defendant Ms. Emma Crisostomo
from which criminal nor civil liability may arise.
 Base from the statements in the trial memorandum the truck was not of the defendant
but that of her carpenter thus, possible negligence in parking could not make the
defendant liable for the damage but her carpenter instead if it is the case.
III. Article 2180 of the Civil Code cannot be applied in this case
 The fact that the truck hit the dog of the plaintiff while said truck was properly
parked on the front of the house of the defendant due to possible malfunction or
negligence of the defendant’s carpenter cannot in any manner be attributed to the
defendant and thus make her liable for any damages. Article 2180 of the Civil Code
which 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” cannot be
applied to this case even if there is possible negligence on the part of the carpenter
since the act of parking the truck is not within the scope of the assigned task from
the defendant for which the said carpenter was hired.
I. The principle established in Secosa vs. Francisco is not applicable in this case.

 In the said precedent a driver of a company, while driving the company vehicle and
on official business, got in an accident, hitting a motorist and causing its immediate
death. The court ruled that “When an injury is caused by the negligence of an
employee, there instantly arises a presumption that there has been negligence on the
part of the employer, either in the selection of his employee or in the supervision over
him after his selection”. The same cannot be made applicable in the present case for
the following reason: (1) the carpenter was not in the performance of his job when
the dog was hit by his truck unlike where a driver is involved in an accident while
driving; (2) unlike in Secosa vs. Fancisco there is contributory negligence on the part
of the plaintiff when she let her dog roam outside their residence while the same is
prohibited by a Board Resolution issued by their Subdivision’s Homeowners’
Association.

PRAYER
WHEREFORE, it is respectfully prayed for of this Honorable Court that judgment be rendered ordering
the defendant to set free from the allegations complained of.

Defendant likewise prays for costs and for such other and further relief as this honorable court may deem
just and equitable in the premises.