MEMORANDUM FOR THE PLAINTIFF

Plaintiff, by counsel and unto this Honorable Court, most respectfully states:

STATEMENT OF THE CASE

This case involves a civil action for reparation of damages filed by plaintiff, Mrs. Luz Diaz, 65 years old, a widow and resident of
Mountain View Subdivision, Antipolo, Rizal, against defendant, Mrs. Emma Crisostomo, 42 years old, married, a housewife, and a
resident of the same Subdivision. Specifically, the plaintiff seeks reparation for the death of her pet dog caused by defendants
employee, Mr. Gregorio Timbol, 53 years old, married and a carpenter.

STATEMENT OF THE FACTS

In the afternoon of October 25, 2010, the plaintiff, Mrs. Diaz, got up from her usual siesta and noticed that her pet dog, Trix, was
no longer by her feet. She got up and looked for him around her house when she heard a loud crashing bang. She ran towards the
gate of her house and saw her pet dog pinned under the wheels of a truck, which she recognized as that being driven by the
carpenter employed by her neighbor and defendant, Mrs. Crisostomo. The truck was backed up against a tree by the sidewalk
and Trix was thrashing and squealing underneath the truck. The street where she lived is sloping and for some reason, the truck
moved backwards and ran over her dog. Mrs. Diaz lost no time in coming to the aid of her pet dog but it was to no avail as she
does not know how to drive the truck. Her pet dog eventually succumbed to his injuries and died.

Mrs. Diaz thereafter went to Mrs. Crisostomos house to report the incident, the latter immediately calling Mr. Timbol, her
carpenter. Mr. Timbol assured Mrs. Crisostomo that the truck was properly parked in front of her house and that he followed
subdivision rules when he parked the same. Mrs. Crisostomo informed Mrs. Diaz of this, but the latter told her that the truck
could not have been properly parked because it moved by itself. This made Mrs. Crisostomo mad and reasoned that Mrs. Diaz
should not blame the carpenter because the dog was not supposed to be out on the streets in the first place, remarking that it
was good riddance because Trix was a pest. Mrs. Diaz told Mrs. Crisostomo that she should get her (Mrs. Diaz) another dog
because Trix was her only companion, but she refused all of the formers demands and insisted that it was her fault.

Hence, Mrs. Diaz comes to this Honorable Court to seek redress against Mrs. Crisostomo.

ISSUES

This memorandum will discuss the following issues:

I.
Whether or not Mrs. Crisostomos employee was negligent with regard to his alleged parking of the truck that killed Mrs. Diazs
pet.

II.
Whether or not Mrs. Crisostomo is liable for her employees negligence.

III.
Whether or not Mrs. Diazs pet dog could be considered a nuisance, as claimed by Mrs. Crisostomo.

IV.
Whether or not there was contributory negligence on the part of Mrs. Diaz for having allowed her pet dog to go outside her
house.

V.
Whether or not Mrs. Diaz should be allowed reparation from Mrs. Crisostomo for the death of the formers pet dog.

ARGUMENTS

Plaintiff, by counsel, respectfully presents the following arguments:

I.
That Mrs. Crisostomos employee was negligent with regard to his alleged parking of the truck that killed Mrs. Diazs pet.

II.
That Mrs. Crisostomo should be held liable for her employees negligence pursuant to Article 2180 of the New Civil Code (NCC).

III.
That Mrs. Diazs pet dog is not a nuisance, as defined under Article 694, NCC, for want of judicial determination.

IV.
That there was no contributory negligence on the part of Mrs. Diaz for having allowed her pet dog to go outside her house.
 V.
That Mrs. Diaz should be allowed reparation from Mrs. Crisostomo for the death of the formers pet dog.
DISCUSSION

I. Negligence on the part of defendants employee

Mrs. Crisostomos employee, the carpenter Mr. Timbol, was negligent with regard to his alleged parking of the truck that killed
Mrs. Diazs pet.

Negligence, as commonly understood, is conduct which naturally or reasonably creates undue risk or harm to others. It may be
the failure to observe that degree of care, precaution, and vigilance which the circumstances justly demand, or the omission to
do something which a prudent and reasonable man, guided by considerations which ordinarily regulate the conduct of human
affairs, would do. (Southeastern College, Inc. vs. Court of Appeals, et.al., G.R. No. 126389, July 10, 1998)

Mr. Timbol would have us believe that the truck was properly parked in front of [defendants] house and that he followed
subdivision rules when he parked the same. It should be remembered that the street where the plaintiff and the defendant lived
was sloping, and so greater care must be exercised by anyone parking a vehicle along such an incline. However, based on Mr.
Timbols direct testimony as a witness for the defendant, all he did was put two large rocks against the back wheels to make sure
that it doesnt roll back down the street.

This certainly raises a question as to what other precautions Mr. Timbol had observed, considering that he claims he followed
subdivision rules when he parked the same.To wit, the defendants witness did not remark on whether or not he checked that
the truck was placed in neutral. Had it been left in reverse, it would be no stretch of the imagination to picture that the truck
could have rolled backwards due to the pull of gravity. This, added to the fact that the truck was an old model that Mr. Timbol
had overhauled, should have put him on guard against a possible mishap, as has been demonstrated by the unfortunate events.

Furthermore, as regards the rocks Mr. Timbol had placed against the back wheels to prevent the same from rolling backwards,
he said that [t]he rocks were no longer there when [he] took a look at the scene after the accident happened. Someone must
have removed them. Such statements are self-serving, as no evidence has been adduced to prove that the rocks were even
behind the back wheels in the first place.

Not a shred of evidence was given by Mr. Timbol to disprove the assumption of negligence on his part, other than his own denial
of the same. Hence, it is respectfully put forward to this Court that Mr. Timbol should be found negligent with regard to his
alleged parking of the truck that killed Mrs. Diazs pet.

II. Negligence presumed on the part of the defendant-employer as regards acts of her employee

Mrs. Crisostomo should be held liable for her employees negligence pursuant to Article 2180, NCC.

Under Article 2176, NCC, whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay
for the damage done. Additionally, Article 2180 contained therein states, in part, that:

The obligation imposed by Article 2176 is demandable not only for one's own acts or omissions, but also for those of
persons for whom one is responsible.

xxx

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.

xxx

The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all
the diligence of a good father of a family to prevent damage.

There is no dispute to the fact that Mr. Timbol, owner of the truck that killed Mrs. Diazs pet, is under the employ of Mrs.
Crisostomo. This is even admitted to by the defendants witness; for when asked if on October 25, 2010, the same date when the
accident happened, he was working on a project, he went on to say that he was working on the renovation of Mrs. Emma
Crisostomos house. Therefore, it is undeniable that Mr. Timbol is an employee of Mrs. Crisostomo on the date in question.

This fact puts the application of Article 2180 as quoted above squarely in the case, for Mrs. Crisostomo, being Mr. Timbols
employer, may be found liable for the damages caused by the latter acting within the scope of his assigned tasks. Also, the
defendant has not produced any evidence to prove that she observed all the diligence of a good father of a family to prevent
damage, as required by said Article to exonerate the employer from damage due to their employees negligent acts.

Hence, it is respectfully put forward to this Court that Mrs. Crisostomo should be held liable for her employees negligence
pursuant to Article 2180.
III. Petitioners pet dog not a nuisance, in the absence of judicial determination

Mrs. Diazs pet dog is not a nuisance, as defined under Article 694 of the New Civil Code, for want of judicial determination.

Mrs. Crisostomo, in her direct testimony, stated that she has complained about Mrs. Diazs dog to the latter [a]bout eight (8) to
ten (10) times in the last three (3) years. These complaints were due to damaging acts allegedly caused by the dog to Mrs.
Crisostomos house and family, including pulling out the plants in her yard, digging holes in her lawn, depositing its waste on her
driveway, peeing in front of her house, and chasing her daughter. She has even complained to the homeowners association,
leading to the passage of Board Resolution No. 3, series of 2009 issued by the Mountain View Subdivision Homeowners
Association (Exhibit 1), banning wandering dogs in the subdivision. In short, Mrs. Crisostomo would have us believe that Mrs.
Diazs dog is a nuisance, and that according to her the accident was good riddance as the pet dog was a pest.

According to Article 694, NCC, 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.

A nuisance may be either public or private. A public nuisance affects a community or neighborhood or any considerable number
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. (Article 695, NCC)

It would seem from the foregoing that, if Mrs. Crisostomos contentions would be considered for arguments sake, Mrs. Diazs
dog would be a private nuisance, in that it does not affect a community or neighborhood or any considerable number of
persons, the defendant being the only one having been shown to be complaining against it. In line with the defendants
argument, Article 705, NCC, provides that one of two remedies against a private nuisance is abatement, without judicial
proceedings. From the manner by which Mrs. Crisostomo viewed the unfortunate accident (i.e. that it was good riddance), it
would appear that Mrs. Crisostomo sees the same as a kind of extra-judicial abatement, justifying the act of killing Mrs. Diazs pet
dog. However, it should be noted that under Article 706, NCC:

Any person injured by a private nuisance may abate it by removing, or if necessary by destroying the thing which
constitutes the nuisance, without committing a breach of the peace or doing unnecessary injury. However, it is
indispensable that the procedure for extra-judicial abatement of a public nuisance by a private person be followed.

The procedure identified above is enumerated in Article 704, NCC: (1) that demand be first made upon the owner or possessor of
the property to abate the nuisance; (2) that such demand has been rejected; (3) that the abatement be approved by the district
health officer and executed with the assistance of the local police; and (4) that the value of the destruction does not exceed three
thousand pesos (P3,000).

Such procedures have clearly not been followed in Mrs. Diazs case. Even though there is demand on her to abate the nuisance in
the form of continued complaints made by the defendant, there is no showing that the plaintiff rejected such demand. Even
assuming arguendo that Mrs. Diazs failure to act on the demand constitutes rejection of the same, it was not shown that such
abatement had been approved by the district health officer, or executed with the assistance of the local police.

Furthermore, the Supreme Court has cited in Iloilo Ice and Cold Storage Co. vs. Municipal Council(21 Phil. 47 [1912]) the tenet
made in Denver vs. Mullen (7 Colo., 345, 353) that:

It is only certain kinds of nuisances that may be removed or abated summarily by the acts of individuals or by the
public, such as those which affect the health, or interfere with the safety of property or person, or are tangible
obstructions to streets and highways under circumstances presenting an emergency; such clear cases of nuisances per
se, are well understood but whether it is such or not is a fact which must first be ascertained by judicial determination
before it can be lawfully abated, either by the public or by a private person.

Judicial determination of the character of the alleged nuisance is therefore a necessary step before any procedure for extra-
judicial abatement could be done. To this effect, it has been held in Monteverde vs. Generoso (52 Phil. 123 [1982]), that:

Nuisances are of two classes: nuisances per se and per accidens. As to the first, since they affect the immediate safety
of persons and property, they may be summarily abated under the undefined law of necessity. But if the nuisance be of
the second class, even the municipal authorities, under their power to declare and abate nuisances, would not have the
right to compel the abatement of a particular thing or act as a nuisance without reasonable notice to the person alleged
 to be maintaining or doing the same of the time and place of hearing before a tribunal authorized to decide whether
such a thing or act does in law constitute a nuisance.

No such hearing took place in the instant case, thereby dispelling the contention on the part of the defendant that the killing was
justified as a good riddance of a pest. Hence, it is respectfully put forward to this Court that Mrs. Diazs pet dog is not a
nuisance, as defined under Article 694 of the New Civil Code, for want of judicial determination.

IV. No contributory negligence on the part of the plaintiff

There was no contributory negligence on the part of Mrs. Diaz for having allowed her pet dog to go outside her house.

It has been noted above that the Mountain View Subdivision Homeowners Association passed Board Resolution No. 3, series of
2009 (Exhibit 1), banning wandering dogs in the subdivision. Defendants argument is that if the dog was not out on its own, it
would not have been killed. [Mrs. Diaz] has only herself to blame for letting her dog roam the streets freely. Consequently, the
defendant alleges contributory negligence on the part of Mrs. Diaz as regards the death of the latters pet dog.

Such allegation is untenable. Contributory negligence is covered in Article 2179, NCC:

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.

It is clear from a reading of the above provision that, for non-recovery of damages by the plaintiff, it is necessary to show that the
negligence was the immediate and proximate cause of the injury, and such negligence came from the plaintiff himself. Proximate
cause is defined as that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces
the injury, and without which the result would not have occurred (Vda. De Bataclan, et.al. vs. Medina, G.R. No. L-10126, October
22, 1957).

The defendant would have us believe that Mrs. Diazs act of letting the dog roam the streets freely is the proximate cause of the
injury done to the defendant by its death. Surely such a conclusion is absurd, for a dog does not necessarily get injured, let alone
die, when let out into the streets. It is rather the downslope movement of the truck which caused the injury, the same act being
traceable to the negligence of Mr. Timbol, employee of the defendant.

The plaintiff cannot even be said to have shown contributory negligence. The fact that Mrs. Diazs dog went out, unfettered, did
not add to the efficacy of the injury; and the fact that the act of allowing the dog to roam free violates Board Resolution No. 3
does not prove that it would contribute to the certainty of the injury. In fact, the only thing it does prove is that Mrs. Diaz violated
Board Resolution No. 3, a matter not within the cognizance of the instant petition and best left for resolution in another action
for the same.

Hence, it is respectfully put forward to this Court that there was no contributory negligence on the part of Mrs. Diaz for having
allowed her pet dog to go outside her house.

V. Reparation for damages caused by the defendant

Mrs. Diaz should be allowed reparation from Mrs. Crisostomo for the death of the formers pet dog.

Art. 2202, NCC, states that:

In crimes and quasi-delicts, the defendants shall be liable for all damages which are the natural and probable
consequences of the act or omission complained of. It is not necessary that such damages have been foreseen or could
have reasonably been foreseen by the defendant.

It has been proven beforehand that the injury inflicted upon Mrs. Diaz consisting of actual damages equivalent to the pecuniary
value of her pet dog, as well as moral damages for mental anguish and serious anxiety brought about by the loss of her one and
only companion, were caused incontrovertibly by the negligence on the part of Mr. Timbol, which could also be attributed by
provision of Article 2180, NCC, to the defendant-employer, Mrs. Crisostomo.

PRAYER

WHEREFORE, plaintiff earnestly prays that:

a) Actual damages equivalent to the pecuniary value of her pet dog be awarded to Mrs. Diaz against defendant;
b) Moral damages for mental anguish and serious anxiety experienced by plaintiff and brought about by the loss of her pet
dog be awarded to the same against defendant, pursuant to subparagraph 2, Article 2219, NCC; and
c) Such other reliefs and remedies that are just and equitable under the premises be awarded to the plaintiff.

SAMPLE TRIAL MEMORANDUM Prepared by Glen V. Ardoa, Universidad de Manila, College of Law