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PLAINTIFF'S TRIAL MEMORANDUM

Plaintiff, through counsel, most respectfully alleges:

STATEMENT OF 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 te 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.

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 validly abated the nuisance when she lodged a complaint before the Homeowner's Association

3. Whether or not the carpenter was negligent when he parked his car in front of the house of the defendant

4. Whether or not the defendant may be held liable when the truck of her carpenter ran over the plaintiff's dog

ARGUMENTS

1. Plaintiff committed a nuisance when she allowed her dog to roam the streets of the subdivision because the dog endangered the safety of a resident of the subdivision. The dog also caused annoyance and offended the senses of a resident inside the subdivision.

Our laws on property states that: "A nuisance is any act, omission, establishment, business, condition of property, or anything else  which: (1) Injures or endangers the health and 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 free passage of any public highway or street or any body of water; (5) Hinders or impairs the use of property." (Article 694, New Civil Code of the Philippines). Here the plaintiff allowed her dog to roam the streets of the subdivision because it was ran over by a truck while on the street. Plaintiff's dog was not kept inside any cage or in a leash because it could sleep in plaintiff's room, lie on the floor or be found on defendant's yard. Plaintiff's dog was therefore free to move around freely. When plaintiff's dog was roaming the streets of the subdivision, it endangered the defendant's girl because it chased her on the street. Plaintiff's dog also caused annoyance and offended the senses of defendant because it dug holes on defendant's lawn, pulled out the plants in her yard and deposited wastes on her driveway or peed in front of her house that left a very foul smell.

Therefore plaintiff committed a nuisance when she allowed her dog to roam on the streets and yard of her neighbor because it endangered the defendant's girl . It also caused annoyance and offended the senses of the defendant.

Our laws on Property further states that "[n]uisance is either public or private. A public nuisance affects the community or neighborhood or any considerable amount 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, New Civil Code) Here, the nuisance maybe regarded as a private nuisance because it only affects an identifiable number of persons. Specifically, the defendant, her family and her surroundings.

2. Defendant  failed to abate the nuisance because he did not obtain the approval of the City Health Officer to authorize him to abate the nuisance.

{Write your discussion here pointing out relevant laws and jurisprudence tying it up with the case at hand.}

3. The carpenter was negligent when he parked his car in front of the house of the defendant because he failed to use that care and diligence expected of sensible men under comparable circumstances.

{Write your discussion here pointing out relevant laws and jurisprudence tying it up with the case at hand.}

4. The defendant may be held liable when the truck ran over the plaintiff's dog because he was the employer of the carpenter that committed negligent acts and which resulted  to damages against the plaintiff.

{Write your discussion here pointing out relevant laws and jurisprudence tying it up with the case at hand.}

PRAYER

WHEREFORE, it is respectfully prayed for of this Honorable Court that judgment be rendered ordering the defendant to pay the value for the plaintiff's dog.

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

Manila, Philippines, November 27, 2011.

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