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    bjhm

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    176 views3 pages

    Lrwii 3

    Uploaded by

    Anonymous DxiKHQ
    bjhm

    Copyright:

    © All Rights Reserved
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    of 3

    NAME : BERNAL, LOVELY MAY CALIBUSO

    SUBJECT : LEGAL RESEARCH AND WRITING II


    DATE : JANUARY 25, 2017

    THE CASE OF A CHILD AND A NEIGHBOR’S DOG


    DEFENDING PETER BANAG

    Knowing the Applicable Law or Rule


    Statutory Laws Applicable:

    Article 2183. 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 damage should come from force majeure or
    from the fault of the person who has suffered damage. CIVIL CODE, Art. 2183

    Article 2179. 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. CIVIL CODE, Art. 2179

    Article 2219. Moral damages may be recovered in the following and analogous cases:
    (1) A criminal offense resulting in physical injuries; (2) Quasi-delicts causing physical
    injuries; (3) Seduction, abduction, rape, or other lascivious acts; (4) Adultery or
    concubinage; (5) Illegal or arbitrary detention or arrest; (6) Illegal search; (7) Libel,
    slander or any other form of defamation; (8) Malicious prosecution; (9) Acts mentioned
    in article 309; (10) Acts and actions referred to in articles 21, 26, 27, 28, 29, 30, 32, 34,
    and 35. CIVIL CODE, Art. 2219

    Article 2176. 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. CIVIL CODE, Art. 2176

    Case Law/Court Ruling Applicable:

    (1) Fernando v. Court of Appeals, G.R. No. 92087, 8 May 1992, 208 SCRA 714,
    718

    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. Fernando v. Court of Appeals, G.R. No. 92087, 8 May 1992, 208 SCRA
    714, 718
    (2) Philippine National Construction Corporation v. Court of Appeals

    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. Reasonable foresight of harm,
    followed by the ignoring of the admonition born of this provision, is always
    necessary before negligence can be held to exist. Philippine National
    Construction Corporation v. Court of Appeals, G.R. No. 159270,
    22 August 2005, 467 SCRA 569, 581

    (3) Jarco Marketing Corporation v. Court of Appeals

    “a child under nine years of age must be conclusively presumed incapable


    of contributory negligence as a matter of law.” Jarco Marketing Corporation v.
    Court of Appeals, G.R. No. 129792, December 21, 1999, 321 SCRA 375

    (4) Umali v. Bacani

    “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.” Umali v. Bacani, G.R. No. L-40570,
    January 30, 1976, 69 SCRA 263

    (5) Janssen Pharmaceutica v. Silayro

    Negligence is defined as the failure to exercise the standard of care that a


    reasonably prudent person would have exercised in a similar situation. Janssen
    Pharmaceutica v. Silayro, G.R. No. 172528, February 26, 2008, 546 SCRA
    628

    (6) Picart v. Smith

    The test by which to determine the existence of negligence in a particular


    case may be stated as follows: Did the defendant in doing the alleged negligent
    act use that person would have used in the same situation? If not, then he is
    guilty of negligence. The law here in effect adopts the standard supposed to be
    supplied by the imaginary conduct of the discreet paterfamilias of the Roman law.
    The existence of negligence in a given case is not determined by reference to the
    personal judgment of the actor in the situation before him. The law considers
    what would be reckless, blameworthy, or negligent in the man of ordinary
    intelligence and prudence and determines liability by that. Picart v. Smith G.R.
    No. L-12219, March 15, 1918, 37 Phil. 809
    (7) Philippine Bank of Commerce v. Court of Appeals

    Such fault or negligence, if there is no pre-existing contractual


    relation between the parties, is called a quasi-delict. To sustain a claim
    based on quasi-delict, the following requisites must concur: (a) damage
    suffered by plaintiff; (b) fault or negligence of defendant; and (c)
    connection of cause and effect between the fault or negligence of
    defendant and the damage incurred by plaintiff. Philippine Bank of
    Commerce v. Court of Appeals, G.R. No. 97626, March 14, 1997, 269
    SCRA 695, 702-703

    Going into the Issues

    (1) Whether or not Arthur Sison was negligent in making his premises safe for his
    customers;
     FACTUAL ISSUE (absorbed in issue no. 4)

    (2) Whether or not there was no contributory negligence on the part of Mary
    which resulted to her own injury;
     SUBORDINATE ISSUE

    (3) Whether or not Mary is entitled for moral damages for the injury sustained
    from the dog bite;
     PRINCIPAL/CONTROLLING ISSUE

    (4) Whether or not Peter Banag was not liable for contributory negligence
    parental negligence in allowing Mary to go out of the house alone.
     SUBORDINATE ISSUE

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