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PRACTICE COURT (3rd Year) Cor Jesu College of Law 1st Semester - 2011Atty. Israelito P. Torreon

Consider the following direct testimonies given in a hypothetical case for damages. Assume that you are the lawyer for either one of the parties. Assume that the Plaintiff has already won in the Regional Trial Court. Using the information given, choose one side and write a memorandum of arguments that the court may con

sider before deciding the case.

1. Testimony of ComplainantCOURT STAFF: (After swearing in the witness) State your name and personalcircumstances.WITNESS: I am Luz Diaz, 65 years old, a widow and resident of Mountain View Subdivision, Antipolo, Rizal.ATTY. RICO SANTOS: With the Courts permission. Ms. Diaz, how long have you been aresident of Mountain View?

A: Thirty (30) years, sir.Q: Do you know Ms. Emma Crisostomo?A: Yes, sir.

Q: How do you know her?A: She is my neighbor in Mountain View for the last three (3) years.Q: Why are you now suing Ms. Crisostomo?A: Because her carpenter killed my dog.Q: How did her carpenter do this?A: His truck was parked in front of Emmas house and rolled backwards,crushing my dog.Q: How did the truck roll backwards when it was parked?A: The street where we lived is sloping and for some reason, the truck movedbackwards and ran over my dog.Q: When did this happen?A: In the afternoon of October 25, 2010.Q: What is your dogs name?

A: TrixQ: What kind of dog was he?A: He was a poodle.Q: How old was Trix?A: He would have turned eight years old last month if he hadnt died. Hes been withme since my husband passed away eight years ago.

Q: How did you find out about Trixs death?A: I was taking my siesta by the day bed in my living room and noticed that Trixwas no longer by my feet. He always sleeps by my feet.

Q: What did you do when you noticed he wasnt there anymore?A: I got up to look for him. I thought he was in the kitchen because he liked togo there to rub his belly on the tile floor, but he was not there.

Q: Where did you look for him next?A: I decided to go to the garden because he also liked playing with the plantsthere.Q: Did you find him there?A: Before I even reached the garden, I heard a loud crashing bang. Then I heardhis cries.Q: What did you do next?A: I ran towards the gate because the sound came from outside. When I opened thegate, I saw Trix under the wheel of a truck.

Q: What else did you see?A: The truck was backed up against a tree by the sidewalk and Trix wasthrashing and squealing underneath the truck. Blood was coming out of hismouth.

Q: What did you do then?A: I cried and screamed for Nilda, my helper, and shouted for the guards whoroamed the subdivision, but no one came.

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Q: Did you try to save Trix?A: I could not save him even if I wanted to, because there was no one in thetrucks driver seat. I do not know how to drive, so I just kept crying andscreaming.Q: What happened to Trix then?A: He kept on howling until he stopped moving and making any sound. Hedied soon after.

Q: Did you know who owned the truck?A: Yes, it has always been parked in front of Emmas house ever since she began renovating it. I knew it belonged to one of her carpenters.Q: Did you complain to Emma?A: Yes, I banged on her gate as soon as Trix died.Q: What did Emma do?A: She called the owner of the truck. I kept on crying and crying because I loved Trix very much but she did not do anything.Q: What did Emma say to you, if any?A: She said that it was not her carpenters fault that Trix was run over by thetruck because it was properly parked. She said that it was only an accident.Q: What did you say to her?

A: I told her that the truck could not have been properly parked because itmoved by itself. She got mad afterwards.Q: Why did she get mad?A: She said that I should not blame the carpenter because Trix was not supposedto be out on the streets in the first place. She even said it was good riddancebecause Trix was a pest.Q: How did you react to what she said?A: I got very mad too. I told her that she should get me another dog because Trix was my only companion. I took care of him like a baby.Q: What did Ms. Crisostomo say?A: She refused all my demands and insisted that it was my fault.ATTY. SANTOS: That is all, your honor.

2. Statement of DefendantCOURT STAFF: State your name and personal circumstances.WITNESS: I am Emma Crisostomo, 42 years old, married and a housewife.ATTY. REY REYES: Do you know the complainant in this case, Ms. Luz Diaz?A: Yes, sir.Q: How do you know her?A: She is our neighbor in the subdivision.Q: When did you first meet Ms. Diaz?A: I met her for the first time three (3) years ago when we moved into thesubdivision. Her dog pulled out the plants in my yard and I knocked on herdoor to complain.Q: Is this the same dog that is the subject of this case?A: Yes, sir.Q: Ms. Diaz testified that it was your carpenters fault that the truck ran over her dog. What can you say about that?A: It is not anyones fault but hers because the dog should not be out roamingthe streets. It was a pesky dog and I have complained about it many times.Q: What were your other complaints about the dog?A: Well, the dog dug holes in my lawn. It would frequently deposit its wastes onour driveway and also pee in front of our house, leaving a foul smell. One

time, it even chased my little girl down the road.Q: How many times have you complained about the dog to Ms. Diaz?A: About eight (8) to ten (10) times in the last three (3) years. I even complained to the homeowners association after it chased my little girl.Q: Is Ms. Diaz a member of the homeowners association?

A: Yes, sir.Q: What did the homeowners association do?A: The homeowners association passed a board resolution banning wandering dogs i

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n the subdivision. It warned Ms. Diaz about her dog.Q: I have here a document entitled Board Resolution No. 3, series of 2009 issuedby the Mountain View Subdivision Homeowners Association. Does this document haveany relation to the board resolution you mentioned?

A: Yes, it is the same document.ATTY. REYES: Your honor, we would like to have this document marked as Exhibit 1.

COURT: Mark it.ATTY. REYES: Ms. Crisostomo, did the board resolution mention any penalties forwandering dogs?A: Yes, sir. The board resolution says that wandering dogs will be caught andthrown into the municipal dog pound.Q. Ms. Diaz says that you should be held liable for the careless way that yourcarpenter parked his truck along the street. What can you say about that?A. My construction foreman assured me that the truck was properly parked in front of our house. He followed subdivision rules when he parked the truck.Besides, if the dog was not out on its own, it would not have been killed. Luzhas only herself to blame for letting her dog roam the streets freely.ATTY. REYES: That is all, your honor.

3. Statement of witness for defendantCOURT STAFF: State your name and personal circumstances.WITNESS: I am Gregorio Timbol, 53 years old, married and a carpenter.ATTY. REY REYES: Mr. Timbol, how long have you been working as a carpenter?A: Thirty-five (35) years, sir, for as long as I can remember.Q: On October 25, 2010, were you working on a project?A: Yes, sir.Q: What project were you working on then?A: I was working on the renovation of Mrs. Emma Crisostomos house.Q: Was there anything unusual that happened on that day?A: Yes, sir. Mrs. Diazs dog got killed in an accident.Q: How did this accident happen?A: It got run over by my truck which was parked in a sloping part of the street

in front of Mrs. Crisostomos house.Q: Was the truck old?A: It was an old model, sir. I bought it second hand and had it overhauled andrepainted.Q: How did you park the truck?A: I followed the subdivision rules, sir. I parked it in front of Mrs. Crisostomoshouse and put two large rocks against the back wheels to make sure that itdoesnt roll back down the street.Q: Mrs. Diaz says that you carelessly parked the truck. What can you say aboutthis?A: That is not true, sir. I followed all subdivision guidelines.Q: Then why did the truck roll backwards?A: The rocks were no longer there when I took a look at the scene after theaccident happened. Someone must have removed them.ATTY. REYES: That is all, your honor.

Laws and jurisprudence that may apply1. Article 694 of the Civil CodeA 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 stree

t, or any body of water; or(5) Hinders or impairs the use of property.2. Article 695 of the Civil Code

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Nuisance is either public or private. A public nuisance affects acommunity 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.3. Article 699 of the Civil CodeThe remedies against a public nuisance are:(1) A prosecution under the Penal Code or any local ordinance: or

(2) A civil action; or(3) Abatement, without judicial proceedings.4. Article 704 of the Civil CodeAny private person may abate a public nuisance which is speciallyinjurious to him by removing, or if necessary, by destroying the thing which constitutes the same, without committing a breach of the peace, or doing unnecessary injury. But it is necessary:(1) That demand be first made upon the owner or possessor of theproperty 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.5. Article 705 of the Civil CodeThe remedies against a private nuisance are:(1) A civil action; or(2) Abatement, without judicial proceedings.6. Article 1159 of the Civil CodeObligations arising from contracts have the force of law between the contractingparties and should be complied with in good faith.

7. Article 2176 of the Civil CodeWhoever by act or omission causes damage to another, there being faultor negligence, is obliged to pay for the damage done. Such fault ornegligence, 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.

8. Article 2179 of the Civil CodeWhen the plaintiff's own negligence was the immediate and proximatecause of his injury, he cannot recover damages. But if his negligence was onlycontributory, the immediate and proximate cause of the injury being thedefendant's lack of due care, the plaintiff may recover damages, but thecourts shall mitigate the damages to be awarded.9. Article 2180 of the Civil CodeThe obligation imposed by Article 2176 is demandable not only for one'sown acts or omissions, but also for those of persons for whom one isresponsible.The father and, in case of his death or incapacity, the mother, areresponsible for the damages caused by the minor children who live in theircompany.Guardians are liable for damages caused by the minors or incapacitatedpersons who are under their authority and live in their company.The owners and managers of an establishment or enterprise are likewiseresponsible for damages caused by their employees in the service of thebranches in which the latter are employed or on the occasion of theirfunctions. 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.The State is responsible in like manner when it acts through a specialagent; but not when the damage has been caused by the official to whom the taskdone properly pertains, in which case what is provided in Article 2176 shall beapplicable.

Lastly, teachers or heads of establishments of arts and trades shall beliable for damages caused by their pupils and students or apprentices, so long as they remain in their custody.

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10. Secosa vs. Francisco, G.R. No. 160039, June 29, 2004, 433 SCRA 273, 277When an injury is caused by the negligence of an employee, thereinstantly arises a presumption that there has been negligence on the part ofthe employer, either in the selection of his employee or in the supervisionover him after his selection. The presumption may be rebutted by a clearshowing that the employer exercised the care and diligence of a good fatherof the family in the selection and supervision of his employee.

11. Philippine National Railways vs. Court of Appeals, G.R. No. 157658, October15, 2007, 536 SCRA 147, 154Negligence is the failure to observe, for the protection of the interests ofanother person that degree of care, precaution, and vigilance which thecircumstances justly demand, whereby such other person suffers injury allthat the law requires is for a person to use that care and diligence expected ofsensible men under comparable circumstances.

12. Ramos vs. C.O.L. Realty Corporation, G.R. No. 184905, August 28, 2009, 597 SCRA 526, 535-536Proximate cause is defined as that cause, which, in natural and continuoussequence, unbroken by any efficient intervening cause, produces the injury,and without which the result would not have occurred. And more

comprehensively, the proximate legal cause is that acting first and producingthe injury, either immediately or by setting other events in motion, allconstituting a natural and continuous chain of events, each having a closecausal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as an ordinary prudent and intelligent person, have reasonableground to expect at the moment of his act or default that an injury to some per

son might probably result therefrom.