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 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 Luz Diaz, sixty five (65) years old, widow and a resident of
Mountain View Subdivision, Antipolo, Rizal while defendant is Emma
Crisostomo, forty two (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 (3) 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 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;
4. When the plaintiff went outside her gate, she 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 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 making any sound. He died soon after;
6. According to the plaintiff, Trix had been with her since her husband passed
away eight years ago.
7. Plaintiff observed that the truck had always been parked in front of the
defendants 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. 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;
9. 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;
10. 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.
11. 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. Defendant went to plaintiff's house to complain that
Trix pulled out the plants in the yard;
12. 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
This memorandum will discuss the following issues:
1. Whether or not Mrs. Crisostomos employee was negligent with regard to
his alleged parking of the truck that killed Mrs. Diazs pet.

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


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

4. 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:
1. That Mrs. Crisostomos employee was negligent with regard to his alleged
parking of the truck that killed Mrs. Diazs pet.

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


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

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

DISCUSSION

1. 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.

2. 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.

3. 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 accidents. 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.

4. 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.