Concept of a Tort Thursday, June 16, 2011 6:07 PM DEFINITION OF TORT Torquere (to twist); tortus (twisted) =>

; conduct which is twisted, crooked, not straight Originally a concept in Anglo-American common law. Some definitions: o Unlawful violation of a private right, not created by contract, and gives rise to an action for damages (Aquino) o A wrong is called a tort only if the harm which has resulted, or is about to result from it, is capable of being compensated in an action for damages, although other remedies may be available o Breach of duties fixed and imposed upon the parties by the law itself; without regard to their consent to assume them or their efforts to avoid them (Prosser and Keeton)

Restore injured parties to their original condition.

Principle: Injuries are to be compensated; anti-social behavior is to be discouraged. PHILIPPINE TORT LAW I. Sources: a. New Civil Code - does not define 'tort' but contains tort provisions i. Quasi-delict (Art.2176 - 2194) ii. Human Relations - (Art.19, 20, 21) - broad enough to cover all legal wrongs which does not constitute violation of contract iii. Miscellaneous provisions b. Miscellaneous special laws i. Corporation Code ii. Child and Youth Welfare Code II. Tort in Spanish law: No equivalent concept of tort in Civil Code, but there is tort law in the Philippines Basis: 3rd source of obligations: culpaextracontractual Obligations which arise from: Acts or omissions not punished by law in which any kind of fault or negligence intervenes. Rule in enforcing civil liability:

Philippine law definition of tort: o No definition of "tort" in the Civil Code, but there are scattered tort provisions found in the Civil Code o No doctrinal definition of "tort" in jurisprudence: Naguiat v. NLRC - Tort consists in the violation of a right given or the omission of a duty imposed by law. In other words, tort is a breach of legal duty. Vinzons-Chato v. Fortune Tobacco - Tort is a wrong Critique: Both definitions are obiter. Naguiat too broad; covers even crimes and violation of contractual relations. Fortune too broad to be even helpful

Crimes and misdemeanors

See: Barredo v. Garcia

Broad categories of tort: 1. Intentional tort - intentional malicious acts (e.g. assault, battery, false imprisonment, defamation, invasion of privacy, interference of property) 2. Negligence - voluntary acts or omissions which result in injury to others, without intending to cause the same. Actor fails to exercise the proper standard of care 3. Strict liability - person is made liable independent of fault or negligence upon submission of proof of certain facts. Characteristics of Tort: Tort is a civil wrong, other than a breach of contract, for which the court will provide a remedy in the form of an action for damages, although other remedies may be available a. Private/civil wrong => encompasses different civil causes of action providing a private remedy o Violation of a private right o An act or omission which causes or which may cause injury to another b. Extra-contractual c. Remedy is usually an action for damages, although other remedies may be available o Damages - compensation for an injury already suffered o Injunctive relief - remedy to prevent someone from injuring you o Restitution o Self-help Purpose of Tort Law: way of allocating costs in society. Tort law adjusts losses occasioned by living in a society, and affords compensation for injuries sustained by one person as the result of conduct of another. Deter socially unreasonable behavior. Not all types of injury are compensated, only those caused by socially unreasonable behavior. Provide peaceful means for adjusting rights of parties who might otherwise take the law into their own hands

Injured party may institute penal and civil action jointly or separately, but only when civil action is renounced or expressly reserved will it be understood not to have been instituted with the penal action. If he brings the civil action alone, he may obtain judgment and execution thereon without former conviction of the accused If criminal action is subsequently prosecuted, the civil action once started must be suspended until termination of the criminal case by final sentence Acquittal from an accusation of criminal negligence is not a bar to subsequent civil action under culpa aquiliana, provided he is not allowed to recover from the same injury twice III.Quasi delict or tort? Problem in Philippine tort law: Does Art. 2176 define a tort or a quasi delict? Or both? Are they the same thing? Quasi-delict: act or omission which causes damage to another , there being no contractual relations, in which fault or negligence intervenes Problem: If tort is a quasi-delict, does the same rules on prescription and limitation on liability apply? Tension arose from: Pronouncement of Code Commission: Did not use the term "tort" to designate Art.2176, because common law concept of tort is broader than quasi delict Intent is for intentional malicious acts to be governed by the Penal Code Whose intent governs?

But, Art.19-21 also define a tort, but it is broader than common-law concept of tort

Code Commission did not reject the concept of tort, but only refused to use the term 'tort' to name the concept embodied by Art.2176 Confused SC jurisprudence

No doctrinal definition of

tort Cavalier use of term "tort" and "quasi-delict"; negligent definition of quasi-delict Vinzons-Chato v. Fortune Tobacco Issue: WON malice or bad faith is needed for an action for damages under Art. 32 to lie

Problem in nomenclature: Although Art.2176 uses the term "fault or negligence", the Code Commissioners declined to use the term "tort" to refer to quasi-delict in Art.2176. They said that common law concept of tort is broader as it includes intentional malicious acts, and the general plan is to have intentional malicious acts governed by the RPC. o However, our definition of quasi-delict now also covers intentional malicious acts, which makes it equivalent to the common law concept of torts. We have expanded and are expanding our original concept of tort liability from that founded on negligence only to one which includes intentional harms and strict liability (unintended, inculpable harm).

Civil liability in quasi-delict, tort and crime The difference between tort and crime lies in the interests affected and the remedy afforded by law. Held: NO. Article 32 actions do not require specific allegation of malice or bad faith for action to lie o Tort is concerned with reparation o Crime is concerned with punishment Reasons: o The oscillation between punishment and reparation 1. Clear legislative intent is to remove the defense of good faith in whether the verdict is primarily a punishment, or primarily cases which involve violation of constitutional rights as a means of making the victim whole again, spelled the 2. Art.32 defines a tort. A tort is a wrong, wrongful act or omission different development between criminal law and tort law. by which one, without right, causes injury, directly or indirectly, Roman law differentiated crime from tort, but never completely upon another's person, property or reputation. In tort actions, separated them. At first, tort damages were awarded to the injured presence of a good or evil motive is immaterial because civil liability individual only as an incident to a criminal prosecution. The sum of is determined not by the mental state of the tortfeasor but by the money adjudged is taken primarily as a punishment and resulting harm occasioned by the tortious conduct. In other words, secondarily only as a means of making the victim whole. But in liability in torts is not precluded by the fact that the defendant acted third century BC, Roman law finally developed the concept of without evil intent. reparation through an ancient statute, the Aquilian law. (Hence, the term "culpa aquiliana") Concept of a Quasi-Delict From this ancient institution developed the concept of 3. Monday, June 20, 2011 civil liability based quasi-delict or culpa aquiliana, a civil liability 12:38 PM that is entirely apart and independent from that arising from delict or crime. Art. 2176 - Whoever by act or omission causes damage to another, there 1. Art. 2177: Responsibility for fault or negligence under being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation betweenthe the preceding Article is entirely separate and distinct from parties, is called a quasi-delict and is governed by the provisions of this the civil liability arising from negligence under the Penal chapter Code. But the plaintiff cannot recover twice for the same act or omission of the defendant. Origin and Nature of the Term "Quasi-delict" 2. See: Barredo v. Garcia Delict - in Roman law, is a generic term covering b. Some of the differences between crimes under the Penal Code actions for various intentional wrongs such as furtum, rapiuna, and the culpa aquiliana or cuasi-delito under the Civil Code are:. damnum iniuria, datum and iniuria. French civil law defines it in a. That crimes affect the public interest, while cuasibroad principles as an "unlawful act infringing upon the right of delitos are only of private concern. another causing damage, such act being imputable to its author, b. That, consequently, the Penal Code punishes or and not constituting the fulfillment of some legal obligation on his corrects the criminal act, while the Civil Code, by means of part." The act must be done knowingly, and with intent to cause indemnification, merely repairs the damage. injury c. That delicts are not as broad as quasi-delicts, because o Delict is confined to intentional injury the former are punished only if there is a penal law clearly covering them, while the latter, cuasi-delitos, include all acts Quasi delict - devised in Roman Law to cover cases of liability in which "any kind of fault or negligence intervenes." where, although there was neither intention nor fault, liability was However, it should be noted that not all violations of the imposed on the grounds of expediency penal law produce civil responsibility, such as begging in o Covers injury caused by negligence contravention of ordinances, violation of the game laws, No such distinction in common law, where the term II. infraction of the rules of traffic when nobody is hurt. "tort" covers both intentional and negligent injury, as well as strict liability Principle in Roman Law: No liability without fault. => NO delictual liability if there is no wrongful intent The traditional interpretation of liability is based on fault. The principle is so strong that the heading of "quasi-delict" has to be invented to cover those anomalous cases where there is liability even if there is no fault. Hence, the concept of "quasi-delict" came about, as that which covers those cases where liability is imposed for negligence which causes damage or injury to another's person or property. This principle was carried into the French Code, which was in turn carried into the Spanish Code and into our own. Hence, we have the separate legal institution of quasi-delict or culpa aquiliana in our code. Elements of Quasi-Delict and Tort Thursday, June 23, 2011 3:07 PM Quasi-delict: the fault or negligence un an act or omission which causes damage to another, where there is no pre-existing contractual relationship between the parties. See: Art.2176 - first sentence defines a source of civil liability in general(i.e. a tort); second sentence qualifies/ limits the civil obligation However, this second sentence was not found in the original Art.1902. In effect, it adds another requirement to the concept of quasi-delict, that there should be no pre-existing contractual relation between the parties.

ANDAMO v. IAC Elements of a quasi-delict: Damage suffered by the plaintiff; Fault or negligence of the defendant, or some other person for whose acts he must respond; => Sir: Negligence must characterize the act or omission if it is to be a quasi-delict 3. The connection of cause and effect betweent he fault or negligence of the defendant and the damage incurred by the plaintiff. *Criticism: Does not mention the non-existence of a contractual relationship between the parties PNR v. Brunty In a long line of cases, the Court held that in order to sustain a claim based on quasi-delict, the following requisites must concur: 1. Damage to plaintiff; 2. Negligence, by act or omission, of which defendant, or some person for whose acts he must respond was guilty; and 3. Connection of cause and effect between such negligence and damage. BPI v. Lifetime LMC sought recovery from BPI on a cause of action based on tort... There are three elements of quasi-delict: Fault or negligence of the defendant, or some other person for whose acts he must respond; Damages suffered by the plaintiff; and 3. The connection of cause and effect between the fault or negligence of the defendant and the damages incurred by the plaintiff. => proximate cause o Proximate cause - is that cause which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. *Criticism: equates tort with quasi-delict GREGORIO v. CA In every tort case filed under Article 2176 of the Civil Code, the plaintiff has to prove by a preponderance of evidence: 1. the damages suffered by him; 2. the fault or negligence of the defendant or some other person to whose act he must respond; 3. the connection of cause and effect between the fault or negligence and the damages incurred; and 4. that there must be no preexisting contractual relation between the parties. *Criticism: Elements of Art. 2176 OK, but calls it a tort GARCIA v. SALVADOR => Violation of statutory duty is negligence. (Based liability on Art.20, basis of negligence is violation of law) Thus, the elements of an actionable conduct are: 1) duty, 2) breach, 3) injury, and 4) proximate causation. *Comment: These are elements of a negligent tort in particular, not quasidelict under Art.2176. But it is OK, as the award of damages in this case was made on the basis of negligent tort under Art.20. There was a finding of negligence because of the violation of a statutory duty. OCEAN BUILDERS v. ANTONIO To successfully prosecute an action anchored on torts, three elements must be present, viz: (1) duty (2) breach (3) injury and proximate causation. *Comment: The action for damages here is based on tort, the employeeemployer relation only being incidental. The statutory provision used was the Labor Code. However, the enumeration is wrong, as injury and proximate causation should be under different numbers. They are not the same. Elements of a cause of action founded upon negligence (Prosser and Keeton): I. There must be a legal duty 2. There is a breach of legal duty 3. Proximate cause 4. Actual loss or damageElements of Quasi-Delict and Tort 5. Thursday, June 23, 2011

6. 7.

3:07 PM

8.

Quasi-delict: the fault or negligence un an act or omission which causes damage to another, where there is no pre-existing contractual relationship between the parties. 9. See: Art.2176 - first sentence defines a source of civil liability in general(i.e. a tort); second sentence qualifies/ limits the civil obligation 10. However, this second sentence was not found in the original Art.1902. In effect, it adds another requirement to the concept of quasi-delict, that there should be no pre-existing contractual relation between the parties. 11. 12. ANDAMO v. IAC

13. Elements of a quasi-delict:

4. 5. 6. 7. 8. Damage suffered by the plaintiff; Fault or negligence of the defendant, or some other person for whose acts he must respond; => Sir: Negligence must characterize the act or omission if it is to be a quasi-delict The connection of cause and effect betweent he fault or negligence of the defendant and the damage incurred by the plaintiff. *Criticism: Does not mention the non-existence of a contractual relationship between the parties

9. 10. PNR v. Brunty

11. In a long line of cases, the Court held that in order to sustain a
4. 5. 6. 7. 8. claim based on quasi-delict, the following requisites must concur: Damage to plaintiff; Negligence, by act or omission, of which defendant, or some person for whose acts he must respond was guilty; and Connection of cause and effect between such negligence and damage. BPI v. Lifetime LMC sought recovery from BPI on a cause of action based on tort... There are three elements of quasi-delict: Fault or negligence of the defendant, or some other person for whose acts he must respond; Damages suffered by the plaintiff; and The connection of cause and effect between the fault or negligence of the defendant and the damages incurred by the plaintiff. => proximate cause 1. Proximate cause - is that cause which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. 2. *Criticism: equates tort with quasi-delict GREGORIO v. CA In every tort case filed under Article 2176 of the Civil Code, the plaintiff has to prove by a preponderance of evidence: the damages suffered by him; the fault or negligence of the defendant or some other person to whose act he must respond; the connection of cause and effect between the fault or negligence and the damages incurred; and that there must be no preexisting contractual relation between the parties. *Criticism: Elements of Art. 2176 OK, but calls it a tort

9.
4. 5. 6.

7. 8.

9.
4. 5. 6. 7. 8. 9.

10. GARCIA v. SALVADOR => Violation of statutory duty is

negligence. (Based liability on Art.20, basis of negligence is violation of law)

11. Thus, the elements of an actionable conduct are: 1) duty, 2)

breach, 3) injury, and 4) proximate causation. 12. *Comment: These are elements of a negligent tort in particular, not quasi-delict under Art.2176. But it is OK, as the award of damages in this case was made on the basis of negligent tort under Art.20. There was a finding of negligence because of the violation of a statutory duty. 13.

14. OCEAN BUILDERS v. ANTONIO

15. To successfully prosecute an action anchored on torts, three

elements must be present, viz: (1) duty (2) breach (3) injury and proximate causation. 16. *Comment: The action for damages here is based on tort, the employee-employer relation only being incidental. The statutory provision used was the Labor Code. However, the enumeration is wrong, as injury and proximate causation should be under Tort, Quasi-delict, Delict, Breach of contract Thursday, June 23, 2011 3:08 PM I. Distinguishing tort, quasi-delict from delict

different numbers. They are not the same. 17. 18. Elements of a cause of action founded upon negligence (Prosser and Keeton): 4. There must be a legal duty 5. There is a breach of legal duty 6. Proximate cause 7. Actual loss or damage were acting within their rights. It might be observed in passing, that the plaintiffs those the more expeditious and effective method of relief.

Andamo v. IAC Doctrine: Quasi-delict as a source of civil liability is entirely separate from Art. 2177 - Responsibility for fault or negligence under the preceding and independent of civil laibility ex delicto article is entirely separate and distinct from the civil liability arising from Article 2176, whenever it refers to "fault or negligence", covers negligence under the Penal Code. But the plaintiff cannot recover damages not only acts "not punishable by law" but also acts criminal in twice for the same act or omission of the defendant. character, whether intentional and voluntary or negligent. Consequently, a separate civil action lies against the offender in a Art. 100, RPC - Every person criminally liable for a felony is also civilly criminal act, whether or not he is criminally prosecuted and found liable. guilty or acquitted, provided that the offended party is not allowed, (if the tortfeasor is actually charged also criminally), to recover Prosser and Keeton damages on both scores, and would be entitled in such eventuality Tort is not the same thing as crime. only to the bigger award of the two, assuming the awards made in the two cases vary. (see Art.2177) o Crime - is an offense against the public at large. That is why the prosecution rests on the State. The purpose of a ... The two sources of civil liability being distinct from each other, criminal proceeding is to protect and vindicate the interests acquittal or conviction in the criminal case is entirely irrelevant in of the public as a whole. It is not concerned directly with the civil case, unless, of course, in the event of an acquittal where compensation of the injured individual. the court has declared that the fact from which the civil action arose o Tort - civil action commenced and maintained by the did not exist, in which case the extinction of the criminal liability would carry with it the extinction of the civil liability. injured person. Primary purpose is to compensate for the damage suffered LG Foods v. Philadelfa Same act may be both a crime against the state and a tort Issue: Whether the spouses Vallejeras cause of actionis founded on against an individual. Since the interests invaded are not the same, Article 103 of RPC, as maintained by the petitioners, or derived from Article there may be a separate civil tort action and a criminal prosecution 2180[10] of the Civil Code. for the same offense. An act or omission causing damage to another may give rise to o May be conducted successively or at the same time two separate civil liabilities on the part of the offender, i.e., 1) civil o Decision for one is usually not conclusive as to the liability ex delicto;and 2) independent civil liabilities, such as those other. Conviction or acquittal in a criminal case is not even (a) not arising from an act or omission complained of as felony admissible in evidence in the tort action (e.g., culpa contractual or obligations arising from law; the Initially, both the punishment for the offense and the reparation intentional torts; and culpa aquiliana); or (b) where the injured party for the damage done was administered by the same court. Tort is granted a right to file an action independent and distinct from the damages were at first warded to the injured individual as an criminal action. incident to a criminal prosecution. Hence, some tort actions have Either of these two possible liabilities may be enforced against the same name with common crimes. But tort law and criminal law the offender. Stated otherwise, victims of negligence or their heirs developed along dissimilar lines, so that criminal law must be have a choice between an action to enforce the civil liability arising regarded as a very unreliable analogy for the law of torts. from culpa criminal under Article 100 of the Revised Penal Code, and an action for quasi-delict (culpa aquiliana) under Articles 2176 Barredo v. Garcia to 2194 of the Civil Code. If, as here, the action chosen is for quasi Civil liability arising from cuasi-delitos (culpa extra-contractual; delict, the plaintiff may hold the employer liable for the negligent act culpa aquiliana) is separate and distinct from civil liability ex delicto. of its employee, subject to the employers defense of exercise of The same negligent act causing damages may produce civil liability the diligence of a good father of the family. On the other hand, if the arising from a crime under article 100 of the Revised Penal Code, action chosen is for culpa criminal, the plaintiff can hold the or create an action for cuasi-delito or culpa extra-contractual under employer subsidiarily liable only upon proof of prior conviction of its articles 1902-1910 of the Civil Code. employee. Some of the differences between crimes under the Penal Code and the culpa aquilidia or cuasi-delito under the Civil Code are: I. Distinguishing tort, quasi-delict from breach of contract 1. That crimes affect the public interest, while cuasidelitos are only of private concern. Culpa aquiliana: 2. That, consequently, the Penal Code punishes or corrects the Based on Art.2176 (1092 in the OCC) criminal act, while the Civil Code, by means of indemnification, Accdg. To Manresa: culpa, substantive and merely repairs the damage. independent, which of itself constitutes the source of an 3. That delicts are not as broad as quasi-delicts, because the obligation between two persons not formerly connected by former are punished only if there is a penal law clearly covering any legal tie them, while the latter, cuasi-delitos, include all acts in which "any kind of fault or negligenee intervenes." However, it should be noted Vinculum juris of the obligation to pay damages is that not all violations of the penal law produce civil responsibility, created by the negligent act; hence existence of the such as begging in contravention of ordinances, violation of the negligent act must be proved as fact (Cangco v. Manila game laws, infraction of the rules of traffic when nobody is hurt. Railroad) Bonuspaterfamilias is a defense The liability of Barredo in this case comes from two distinct sources: Culpa contractual subsidiary civil liability ex delicto, arising from Fontanilla's criminal o Based on Art.1170 => culpa which is an accident in the negligence, and primary, arising from his own presumed negligence as performance of an obligation already existing employer (under Art.1903). The plaintiffs were free to choose which remedy to pursue, and they preferred the second remedy. In so doing, they o Exercising due diligence in the selection of employees

is not a defense in case of breach o Vinculum juris already exists, hence there is no need to prove negligence as a fact. It is sufficient to prove that a contract exists and that it was breached. Cangco v. Manila Railroad Source of liability here: breach of contract of carriage. The liability being based on culpa contractual, the negligence of employees for which one must be held liable under culpa aquiliana becomes immaterial. Rakes v. Atlantic: The acts to which these articles [1902 and 1903 of the Civil Code] are applicable are understood to be those not growing out of pre-existing duties of the parties to one another But where relations already formed give rise to duties, whether springing from contract or quasi-contract, then breaches of those duties are subject to articles 1101, 1103 and 1104 of the same code. Every legal obligation must of necessity be extra-contractual or contractual The fundamental distinction between obligations [extra-contractual] and those which arise from contract, rests upon the fact that in cases of non-contractual obligation it is the wrongful or negligent act or omission itself which creates the vinculum juris, whereas in contractual relations the vinculum exists independently of the breach of the voluntary duty assumed by the parties when entering into the contractual relation. In actions based on culpa contractual, it is not 3. necessary for plaintiff to specify in his pleadings whether the breach of the contract is due to willful fault or to negligence on the part of the defendant, or of his servants or agents. Proof of the contract and of its nonperformance is sufficient prima facie to warrant a recovery.

of the servant is conclusively the negligence of the master." FGU Insurance v. Sarmiento In culpa contractual, the mere proof of the existence of the contract and the failure of its compliance justify, prima facie, a corresponding right of relief.. . A breach upon the contract confers upon the injured party a valid cause for recovering that which may have been lost or suffered. => Art.1170 The effect of every infraction is to create a new duty, that is, to make recompense to the one who has been injured by the failure of another to observe his contractual obligation, unless he can show extenuating circumstances, like proof of his exercise of due diligence (normally that of the diligence of a good father of a family or, exceptionally by stipulation or by law such as in the case of common carriers, that of extraordinary diligence) or of the attendance of fortuitous event, to excuse him from his ensuing liability. Batal v. San Pedro Culpa, or negligence, may be understood in two different senses: either as culpa aquiliana, which is the wrongful or negligent act or omission which creates a vinculum juris and gives rise to an obligation between two persons not formally bound by any other obligation, or as culpa contractual, which is the fault or negligence incident in the performance of an obligation which already existed, and which increases the liability from such already existing obligation. Culpa aquiliana is governed by Article 2176 of the Civil Code and the immediately following Articles; while culpa contractual is governed by Articles 1170 to 1174.

Calalas v. CA II. Petitioner's argument that the finding that Verena's negligence was the cause of the accident is conclusive as to Sunga is not *NOTE on primary liability of employers for negligent acts of their meritorious. The issue in that case is whether Verena is liable for a employees (Art.2180): quasi-delict. In this case, the issue is whether petitioner is liable for It appears that Art. 2180 is not a strict liability tort, inasmuch as it violation of a contract of carriage. The first, quasi-delict, also known does not impose liability based on non-existent fault. According to as culpa aquiliana or culpa extra contractual, has as its source the this case, the liability is imposed because the father/master/owner negligence of the tortfeasor. The second, breach of contract or is himself guilty of negligence in not preventing that which he could culpa contractual, is premised upon the negligence in the have prevented. Presumption is based on the old RL assumption of performance of a contractual obligation. paterpotestas - the power of life and death of the Consequently, in quasi-delict, the negligence or fault should be father/master/owner over his child/slave/subordinate. The clearly established because it is the basis of the action, whereas in father/master/owner is made liable not for the negligent act of his breach of contract, the action can be prosecuted merely by proving subordinate, but for his primary negligence in not preventing that the existence of the contract and the fact that the obligor, in this negligence of his subordinate in the first place case the common carrier, failed to transport his passenger safely to As Manresa says ,the liability arising from extra-contractual culpa his destination. is always based upon a voluntary act or omission which, without willful intent, but by mere negligence or inattention, has caused Fores v. Miranda damage to another. A master who exercises all possible care in the c. The difference in conditions, defenses and proof, as well as the selection of his servant, taking into consideration the qualifications codal concept of quasi-delict as essentially extra contractual they should possess for the discharge of the duties which it is his negligence, compel us to differentiate between action ex contractu, purpose to confide to them, and directs them with equal diligence, and actions quasi ex delicto, and prevent us from viewing the thereby performs his duty to third persons to whom he is bound by action for breach of contract as simultaneously embodying an no contractual ties, and he incurs no liability whatever if, by reason action on tort. of the negligence of his servants. True it is that under article 1903 of the Civil Code the law creates a presumption that he has been Moral damages not recoverable in an action based on culpa negligent in the selection or direction of his servant, but the contractual, as breach of contract is not one of the grounds presumption is rebuttable and yields to proof of due care and mentioned in Art.2219. diligence in this respect. o Exception: In case the breach of contract is attended o This is why exercising diligentissimi patris families is a by bad faith or fraud (dolus) => Art.2220 defense. o Art. 1764 - in a mishap resulting in the death of a SC of Porto Rico: "From this article two things are apparent: (1) passenger, a common carrier is liable for moral damages to That when an injury is caused by the negligence of a servant or the spouse, descendants and ascendants of the deceased employee there instantly arises a presumption of law that there was passenger, on account of mental anguish by reason of the negligence on the part of the master or employer either in the death of the deceased selection of the servant or employee, or in supervision over him o Where negligence is so gross as to amount to malice after the selection, or both; and (2) that presumption is juris tantum => recoverable and not juris et de jure, and consequently, may be rebutted. It follows necessarily that if the employer shows to the satisfaction of Air France v. Carrascoso the court that in selection and supervision he has exercised the ...Although the relation of passenger and carrier is "contractual care and diligence of a good father of a family, the presumption is both in origin and nature" nevertheless "the act that breaks the overcome and he is relieved from liability. This theory bases the contract may be also a tort" responsibility of the master ultimately on his own negligence and Found that there was a contractual breach, but instead of not on that of his servant. This is the notable peculiarity of the pinning liability solely on the basis of contravention of tenor Spanish law of negligence. It is, of course, in striking contrast to the (Art.1170), had to go to negligence and use it as a basis for saying American doctrine that, in relations with strangers, the negligence

that Air France violated its duty to the public as an air carrier. Hence, transforming the action to one for quasi-delict. (Moral damages were awarded) Far East v. Court of Appeals Issue: Luis claims moral damages but it cannot be awarded because it's available only for quasi-delict, when the negligence is so gross it amounts to malice, and not to breach of contract. A quasi-delict can be the cause for breaching a contract. Such cases thereby permit the application of applicable principles on tort, even where there is a pre-existing contract between the plaintiff and the defendant (Phil. Airlines vs. Court of Appeals, 106 SCRA 143; Singson vs. Bank of Phil. Islands, 23 SCRA 1117; and Air France vs. Carrascoso, 18 SCRA 155). o This doctrine, unfortunately, governs only where the act or omission complained of would constitute an actionable tort independently of the contract. The test (whether a quasi-delict can be deemed to underlie the breach of a contract) can be stated thusly: Where, without a pre-existing contract between two parties, an act or omission can nonetheless amount to an actionable tort by itself, the fact that the parties are contractually bound is no bar to the application of quasi-delict provisions to the case. PSBA v. Court of Appeals Because the circumstances of the present case evince a contractual relation between the PSBA and Carlitos Bautista, the rules on quasi-delict do not really govern. A perusal of Article 2176 shows that obligations arising from quasi-delicts or tort, also known as extra-contractual obligations, arise only between parties not otherwise bound by contract, whether express or implied. However, this impression has not prevented this Court from determining the existence of a tort even when there obtains a contract. In Air France vs. Carroscoso (124 Phil. 722), the private respondent was awarded damages for his unwarranted expulsion from a first-class seat aboard the petitioner airline. It is noted, however, that the Court referred to the petitioner-airline's liability as one arising from tort, not one arising from a contract of carriage. In effect, Air France is authority for the view that liability from tort may exist even if there is a contract, for the act that breaks the contract may be also a tort. (Austro-America S.S. Co. vs. Thomas, 248 Fed. 231) Syquia v. CA Although a pre-existing contractual relation between the parties does not preclude the existence of a culpa aquiliana, We find no reason to disregard the respondent's Court finding that there was no negligence. LRT v. Navidad The foundation of LRTAs liability is the contract of carriage and its obligation to indemnify the victim arises from the breach of that contract by reason of its failure to exercise the high diligence required of a common carrier. The liability of Prudent Services, on the other hand, has to be based on tort. However, as it has not been shown that its employee is negligent, there is no cause of action against Prudent. 4. A contractual obligation can be breached by tort and when the same act or omission causes the injury, one resulting in culpa contractual and the other in culpa aquiliana, Article 2194[14] of the Civil Code can well apply. In fine, a liability for tort may arise even under a contract, where tort is that which breaches the contract. Stated differently, when an act which constitutes a breach of contract would have itself constituted the source of a quasi-delictual liability had no contract existed between the parties, the contract can be said to have been breached by tort, thereby allowing the rules on tort to apply. Consolidated Bank v. CA Solidbank held liable for culpa contractual for breach of its contractual duty to return the savings passbook to L.C. Diaz' authorized representative. The breach was predicated on negligence, the omission of that diligence required by law for a simple contract of loan between a bank and a client-depositor - a standard defined statutorily and jurisprudentially as "highest degree of care." o SC: It is well to reiterate that the degree of diligence required of banks is more than that of a reasonable man or

a good father of a family. In view of the fiduciary nature of their relationship with their depositors, banks are dutybound to treat the accounts of their clients with the highest degree of care. In culpa contractual, once the plaintiff proves a breach of contract, there is a presumption that the defendant was at fault or negligent. The burden is on the defendant to prove that he was not at fault or negligent. In contrast, in culpa aquiliana the plaintiff has the burden of proving that the defendant was negligent. In the present case, L.C. Diaz has established that Solidbank breached its contractual obligation to return the passbook only to the authorized representative of L.C. Diaz. There is thus a presumption that Solidbank was at fault and its teller was negligent in not returning the passbook to Calapre. The burden was on Solidbank to prove that there was no negligence on its part or its employees. Solidbank failed to discharge this burden. Solidbank is bound by the negligence of its employees under the principle of respondeat superior or command responsibility. The defense of exercising the required diligence in the selection and supervision of employees is not a complete defense in culpa contractual, unlike in culpa aquiliana.

01 July 2011 Notes Friday, July 01, 2011 1:17 PM Cangco - it is possible that there could be culpa aquiliana here. But the Court considered the complaint of Cangco as one for damages arising from culpa contractual. Sir: Culpa aquiliana could have been a better choice because Cangco was not riding the train as a common passenger. (He was riding for free, as an employee) Batal 4. Negligence v. incompetent - was Frank negligent or simply incompetent? Negligence presupposes you could have performed it to the standard. Capacity is not there, so was it negligence or not? 5. No culpa aquiliana here. There is no duty to give the proper metes and bounds absent a contractual relation Calalas v. Sunga - cannot use of the proximate cause finding because Sunga is suing Calalas under a breach of contract. Proximate cause is applicable only in quasi-delict case. d. Culpa contractual, therefore it does not matter whether the negligence of Calalas is the proximate cause or not. All that matters is to prove that there is a contract, and there is breach thereof. Easier to prove culpa contractual. Problem: Moral damages cannot be recovered see Fores v. Miranda When there is a contract between the parties, can there be culpa aquiliana? PA: NO. Because 2176 by definition prohibits it. Air France referred to tort. Not quasi-delict 5. Legal basis: Art.2176 second sentence Fores v. Miranda: No culpa aquiliana if you have pre-existing relationship between the parties PSBA

Consolidated Bank

Can the same act be culpa aquiliana and culpa contractual at the same time? PA: NO. Again, Art.2176 second sentence. Logically impossible But there are many cases saying that it's possible. Succeeding cases cite Air France, but replace 'tort' with 'culpa aquiliana'. Sir: From PSBA onwards, they tried to limit the application of Air France doctrine (act that breaks a contract can also be a tort) Limitation: Its possible to have a q-delict even if there is culpa contractual, as long as the q-delict could exist even if there is no contract (see Batal) Problem: Air France refers to "act that breaks a contract can also be a tort" - because the act presupposes a contract

Fores: Impossible to have a quasi-delict if you have a breach of contract, if you have a contract even Culpa contractual: can only recover damages if there is bad faith or malice. Air France: Not necessary to segue into characterization of tort, because there is already a finding of breach of contract, and bad faith. PSBA: Even if there was negligence, that negligence would be only based on a contract. In effect, there could be no q-d here because absent a contract, PSBA has no obligation to ensure the safety of the students. III.But see Sir's examples: cannot apply the doctrine in a blanket manner Negligence - creation of an unreasonable risk; exposing others to an unreasonable risk Syquia -

knows that the risk was great; if it was not apparent when the conduct occurred, then there is no negligence. External standard - Standard is based on what society demands of the individual, rather than upon the individual's notion of what is proper. Negligence v. neglect -

Neglect - failure to do a thing (omission). Such failure can be intentional or unintentional, but intentional omissions must not be treated as cases of negligence. Intentional omission - e.g. intentionally failing to help a person in danger of dying, when there is no risk to yourself. (This will be dolo) -> the difference lies in the intent (as in intentional felony vs. culpable felony). In this case, if it can be shown that the failure to help is unintentional, then it will be negligence and not intentional omission Unintentional omission - two types of situations: Oversight in the course of doing something = bad way of doing a thing; e.g. failure stop at a red light (but the distinction between intentional omission and this is thin, see example above) => again, the difference lies in the intent. If the person intentionally does not stop at a red light, then it is intentional omission, not negligence Where the law imposes upon a person the duty to do something, for which he will be liable in case of failure to carry it out. (See Art.274, RPC) In all cases in which the law imposes an obligation to do something, the omission of which will render a party liable, it is necessary to specify what the party in question is required to do.

Negligence Thursday, June 23, 2011 3:09 PM

CONCEPT OF NEGLIGENCE

Art. 1173 - The fault or negligence of the obligor consists in the omission of that diligence which is required by the nature of the obligation and corresponds with the circumstances of the persons, of the time and of the place. When negligence shows bad faith, the provisions of Articles 1171 and 2201, paragraph 2, shall apply. If the law or contract does not state the diligence which is to be observed in the performance, that which is expected of a good Prosser and Keeton, pp. 169-173 father of a family shall be required. Negligence is not necessarily the absence of solicitude for those who may be adversely affected by one's actions, but is instead Art.1171 - Responsibility arising from fraud is demandable in all behavior which exposes others to unreasonable risk. obligations. Any waiver of n action for future fraud is void Negligence is conduct which falls below a standard established Art.2201 (2) - In case of fraud, bad faith, malice or wanton attitude, the by the law for the protection of others against unreasonable risk of obligor shall be responsible for all damages which may be reasonably harm. Risk means a danger which is apparent, or should be attributed to non-performance of the obligation. apparent, to one in the position. See cognizable danger - It is not enough that everyone can see now that the risk was great, if it was Art. 2178 - The provisions of Art.1172 to 1174 are applicable to quasinot apparent when the conduct occurred. delicts. Not every act which exposes others to risk is negligence. Only that which exposes them to unreasonable risk Fault or Negligence (culpa) - want of care required by the circumstances Relative to the need and the occasion: The standard of 6. Standard not fixed: the diligence which the law requires the conduct which is the basis of the law of negligence is usually individual at all times to govern his conduct varies with the nature of determined by a risk-benefit form of analysis, taking the following the situation in which he is placed, and the importance of the act into consideration: which he is to perform. 1. The inherent risk Conduct, not state of mind - Negligence is conduct, not a state of 2. Social value of the interest which the actor is seeking mind or the use of sound judgment. Hence, the existence of to advance negligence, in a given case, is not determined by reference to the 3. Alternative course open to the actor personal judgment but by behavior of the actor in the situation. In a given situation, it is necessary to gauve first what consequences he PNR v. Brunty would have foreseen in that situation, and then how he would have Negligence is the omission to do something which a reasonable regulated his conduct in the light of these consequences. The man, guided by those considerations which ordinarily regulate the pattern of behavior thus conceived becomes the yardstick by which conduct of human affairs, would do, or the doing of something to measure the defendant's actual behavior as proved by the which a prudent and reasonable man would not do. evidence. Negligence is want of the care required by the circumstances. It Active v. passive (action or inaction) - Active negligence is the is a relative or comparative, not an absolute, term and its doing of something one is under obligation not to do. Passive application depends upon the situation of the parties and the negligence is the failure to do something which he is under a legal degree of care and vigilance which the circumstances reasonably obligation to do. require. o E.g. willfully driving at a high speed in a school zone Contributory negligence: Contributory negligence is conduct active negligence, because the person is under an on the part of the injured party, contributing as a legal cause to the obligation not to drive fast harm he has suffered, which falls below the standard to which he is o Failure to abate an attractive nuisance - passive required to conform for his own protection. To hold a person as negligence, because the person is under obligation to having contributed to his injuries, it must be shown that he ensure the safety of children who may be attracted to his performed an act that brought about his injuries in disregard of dangerous property warning or signs of an impending danger to health and body. To Cognizable danger - The actor's conduct must be IV. prove contributory negligence, it is still necessary to establish a judged in the light of the possibilities apparent to him at the time, causal link, although not proximate, between the negligence of the and not by looking backward. The standard must be of conduct, party and the succeeding injury. rather than consequence. It is not enough that everyone now

PNR and Borja v. Court of Appeals 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. Using the aforementioned philosophy, it may be reliably concluded that there is no hard and fast rule whereby such degree of care and vigilance is calibrated; it is dependent upon the circumstances in which a person finds himself. All that the law requires is that it is perpetually compelling upon a person to use that care and diligence expected of sensible men under comparable circumstances. PNR found guilty of negligence because of its failure to install safety devices/precautionary measures in the crossing in question, similar to Brunty. Railway companies owe duty to public to exercise reasonable degree of care to avoid injury to persons and property at railroad crossings Picart v. Smith Conduct is said to be negligent when a prudent man in the position of the tortfeasor would have foreseen that an effect harmful to another was sufficiently probable to warrant his foregoing conduct or guarding against its consequences. Reasonable foresight of harm, followed by ignoring of the suggestion born of this prevision, is always necessary before negligence can be held to exist. 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 reasonable care and caution which an ordinarily prudent 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. Sicam v. Jorge Petitioners use fortuitous event as a defense, but they were found guilty of contributory negligence. Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do; or the doing of something which a prudent and reasonable man would not do. It is want of care required by the circumstances. The diligence with which the law requires the individual at all times to govern his conduct varies with the nature of the situation in which he is placed and the importance of the act which he is to perform. Thus, the cases where debtor was released from his liability due to a robbery does not necessarily apply in this case.

negligence differing in quality rather than in degree from ordinary lack of care. The usual meaning assigned to this is that the actor has intentionally done an act or an unreasonable character in disregard of a risk known to him or so obvious that he must be taken to have been aware of it. It is usually accompanied by a conscious indifference to consequences, amounting almost to willingness that they shall follow. o Highly unreasonable conduct, involving an extreme departure from ordinary care in a situation where a high degree of danger is apparent. Prosser and Keeton, pp. 208-214 The amount of care demanded by the standard of reasonable conduct must be proportionate to the apparent risk Greater risk = greater care

The idea of "degrees of negligence" has been rejected at common law by most courts as an impractical and vague distinction that adds only difficulty and confusion to the already nebulous and uncertain standards 6. The rule in most situations is that there are no "degrees" of care or negligence, as a matter of law; there are only different amounts of care, as a matter of fact. Amedo v. Rio G.R. No. L-6870. May 24, 1954. Marinduque v. Workmens G.R. No. L-8110. June 30, 1956 Ilao-Oreta v. Ronquillo G.R. No. 172406. October 11, 2007 Standard of Conduct Friday, July 01, 2011 9:17 PM A. Standard of conduct

In general

Article 1173 - good father of the family Sangco, (Vol I) pp. 7-8 Prosser and Keeton, pp. 173-179, 182-185 Picart v. Smith 37 Phil 809 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 reasonable care and caution which an ordinarily prudent 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. Conduct is said to be negligent when a prudent man in the position of the tortfeasor would have foreseen that an effect harmful to another was sufficiently probable to warrant his foregoing conduct or guarding against its consequences. Reasonable foresight of harm, followed by ignoring of the suggestion born of this prevision, is always necessary before negligence can be held to exist. Doctrine of last clear chance applied: Under these circumstances the law is that the person who has the last fair chance to avoid the impending harm and fails to do so is chargeable with the consequences, without reference to the prior negligence of the other party. Sicam v. Jorge Petitioners use fortuitous event as a defense, but to claim caso fortuito, it is necessary that the petitioner not be guilty of concurrent negligence. Sicam guilty of concurrent negligence here . Diligence required of a pawnshop: Article 2123 of the Civil Code provides that with regard to pawnshops and other establishments which are engaged in making loans secured by pledges, the

Degrees of Negligence Under Roman Law - degrees of legal fault which correspond to lack of required degree of care: a. Slight negligence - failure to use great care 2. Ordinary negligence - failure to use ordinary care 3. Gross negligence - failure to use even slight care
Present: (distinction is actually nebulous) Slight negligence - absence of that degree of care and vigilance which persons of extraordinary prudence and foresight are accustomed to use; failure to exercise great care Gross negligence - originally meant very great negligence, or the want of even scant care. It is the failure to exercise even that care which a careless person would use. Although several courts construed "gross negligence" as requiring willful misconduct or recklessness, still many consider that it falls short of a reckless disregard of consequences. There is no generally accepted meaning, but it probably signifies more than ordinary inadvertence or inattention, but less than conscious indifference to consequences. Willful, wanton and reckless - quasi-intent. It lies in 3. between the intent to do harm (which includes proceeding with knowledge that the harm is certain to occur, and negligence. It refers to conduct which is still, at essence, negligent, rather than actually intended to do harm, but which is so far from proper that it is treated as if it were so intended. It is an aggravated form of

Taylor v. Manila Railroad 16 Phil 8 Action for damages for loss of eye and other injuries, caused by explosion of brass fulminating caps found by the children on respondent's property. Taylor was at that time 15 years old and more mature than other children of his age. Manila Railroad was found negligent for leaving about the fulminating caps where they Corinthian Gardens v. Spouses Tanjangco G.R. No. 160795. June 27, can be picked up by the general public, and children in particular. 2008 But it was absolved because its negligence was not the proximate Cuaso builds a fence according to plan made by Engr. De Dios, cause of the injury suffered by Taylor. C.B. Paraz, approved by Corinthian. It encroached upon the lot of Adopted the turntable and torpedo doctrines re: children Tanjangco by 87 square meters trespassers. Doctrine of implied invitation to visit the premises of Corinthian failed to exercise the requisite diligence in insuring another (attractive nuisance): Child had been allured or enticed that the Cuasos abide by its Manual of Rules and Regulations, upon the land by the [turntable] "as a bait attracts a fish, or a piece thereby resulting in the encroachment on the Tanjangcos property. of stinking meat draws a dog", so that defendant himself was considered responsible for the trespass The owners of premises, therefore, whereon things attractive to children are exposed, or upon which the public are expressly or impliedly Special Circumstance permitted to enter or upon which the owner knows or ought to know children are likely to roam about for pastime or play, " must Heirs of Completo v. Albayda G.R. No. 172200. July 6, 2010 calculate upon this, and take precautions accordingly." Collision between taxicab driven by Completo and Albayda riding The owner's failure to take reasonable precautions to a bike, which caused serious physical injuries to Albayda prevent the child from entering his premises at a place It is a rule in negligence suits that the plaintiff has the burden of where he knows or ought to know that children are proving by a preponderance of evidence the motorist's breach in accustomed to roam about or to which their childish his duty of care owed to the plaintiff, that the motorist was negligent instincts and impulses are likely to attract them is at least in failing to exercise the diligence required to avoid injury to the equivalent to an implied license to enter plaintiff, and that such negligence was the proximate cause of the Where the child does enter under such conditions, the injury suffered owner's failure to take reasonable precautions to guard the Negligence of Completo was the sole and proximate cause of child against injury from unknown or unseen dangers, the serious physical injuries sustained by Albayda. Completo did placed upon such premises by him, is clearly a breach of not slow down even when he approached the intersection of 8thand duty 11thStreets. It was also proven that Albayda had the right of way, To hold otherwise would be expose all the children in considering that he reached the intersection ahead of Completo. the community to unknown perils and unnecessary danger The bicycle occupies a legal position that is at least equal to that at the whim of the owners or occupants of land upon which of other vehicles lawfully on the highway, and it is fortified by the they might naturally and reasonably be expected to enter. fact that usually more will be required of a motorist than a bicyclist In this jurisdiction, all private property is acquired and in discharging his duty of care to the other because of the physical held under the tacit condition that it shall not be so used as advantages the automobile has over the bicycle. Simply stated, the to injure the equal rights and interests of the community physical advantages that the motor vehicle has over the bicycle b. An infant of tender years is not to be judged by the same rule make it more dangerous to the bicyclist than vice versa. which governs that of adult. The care and caution required of a child is according to his maturity and capacity only, and this is to be Pacis v. Morales G.R. No. 169467. February 25, 2010 determined in each case by the circumstances of the case Son of petitioners was killed while inside the gun store of Children, wherever they go, must be expected to act upon childlike Morales. It was caused by the accidental discharge of a gun left on instincts and impulses; and others who are chargeable with a duty the drawer for repair. of care and caution toward them must calculate upon this, and take A higher degree of care is required of someone who has in his precautions accordingly. If they leave exposed to the observation of children anything which would be tempting to them, and which they possession or under his control an instrumentality extremely in their immature judgment might naturally suppose they were at dangerous in character, such as dangerous weapons or liberty to handle or play with, they should expect that liberty to be substances. Such person in possession or control of dangerous taken. instrumentalities has the duty to take exceptional precautions to c. However it is an entirely different question when the minor prevent any injury being done thereby. Unlike the ordinary affairs of involved has the necessary capacity to understand and appreciate life or business which involve little or no risk, a business dealing the nature and consequences of his own acts. We are satisfied with dangerous weapons requires the exercise of a higher degree that the plaintiff in this case had sufficient capacity and of care. understanding to be sensible of the danger to which he exposed As a gun store owner, respondent is presumed to be himself when he put the match to the contents of the cap, he knew knowledgeable about firearms safety and should have known never of the explosive character of the fulminating caps to keep a loaded weapon in his store to avoid unreasonable risk of harm or injury to others. Respondent has the duty to ensure that all Jarco Marketing v. CA 321 SCRA 375 the guns in his store are not loaded. Firearms should be stored Aguilar spouses sue Jarco for damages due to the death of their unloaded and separate from ammunition when the firearms are not child Zhieneth, who suffered serious physical injuries that lead to needed for ready-access defensive use. With more reason, guns her death when the gift wrapping counter of Jarco Marketing fell on accepted by the store for repair should not be loaded precisely her. Jarco faults Criselda and Zieneth for the accident, saying the because they are defective and may cause an accidental discharge counter was not an attractive nuisance and Zieneth has no such as what happened in this case. business climbing over the same. Respondents on the other hand For failing to insure that the gun was not loaded, respondent maintain that the cause of death was petitioners' negligence in himself was negligent. Clearly, respondent did not exercise the failing to have the counter permanently nailed. Also, Zieneth who degree of care and diligence required of a good father of a family, was only 6 years old should be entitled to the conclusive much less the degree of care required of someone dealing with

special laws and regulations concerning them shall be observed, and subsidiarily, the provisions on pledge, mortgage and antichresis. The provision on pledge, particularly Article 2099, provides that the creditor shall take care of the thing pledged with the diligence of a good father of a family. This means that petitioners must take care of the pawns the way a prudent person would as to his own property. 7. The diligence with which the law requires the individual at all times to govern his conduct varies with the nature of the situation in which he is placed and the importance of the act which he is to perform. Thus, the cases where debtor was released from his liability due to a robbery does not necessarily apply in this case.

dangerous weapons, as would exempt him from liability in this case. 3. Children Sangco Vol I pp. 70-74 Prosser and Keeton, pp. 179-182, 399-411

presumption that a child below nine (9) years is incapable of contributory negligence. Accident and negligence are intrinsically contradictory; one cannot exist with the other. Accident occurs when the person concerned is exercising ordinary care, which is not caused by fault of any person and which could not have been prevented by any means suggested by common prudence. Death of Zieneth was due to Jarco's negligence o Res gestae - Zieneth did not do anything, the counter just fell on her o Structurally defective counter, pointed out by Jarco's employees Conclusive presumption that favors children below nine (9) years old in that they are incapable of contributory negligence. Sangco: In our jurisdiction, a person under nine years of age is conclusively presumed to have acted without discernment, and is, on that account, exempt from criminal liability... A child under nine years of age is, by analogy, conclusively presumed to be incapable of negligence... The rule, therefore, is that a child under nine years of age must be conclusively presumed incapable of contributory negligence as a matter of law. Ylarde v. Aquino G.R. No. L-33722. July 29, 1988 7. Teacher instructed his students to dig a hole to bury a 1 ton block of concrete 8. Aquino was negligent when he: (1) failed to avail himself of services of adult manual laborers and instead utilized his pupils aged ten to eleven to make an excavation near the one-ton concrete stone which he knew to be a very hazardous task; (2) required the children to remain inside the pit even after they had finished digging, knowing that the huge block was lying nearby and could be easily pushed or kicked aside by any pupil who by chance may go to the perilous area; (3) ordered them to level the soil around the excavation when it was so apparent that the huge stone was at the brink of falling; (4) went to a place where he would not be able to check on the children's safety; and (5) left the children close to the excavation, an obviously attractive nuisance. 9. Left by themselves, it was but natural for the children to play around. Tired from the strenuous digging, they just had to amuse themselves with whatever they found. . . Since the stone was so heavy and the soil was loose from the digging, it was also a natural consequence that the stone would fall into the hole beside it, causing injury on the unfortunate child caught by its heavy weight. Everything that occurred was the natural and probable effect of the negligent acts of private respondent Aquino. Lower court erred in ruling that Ylarde was imprudent. 10. It did not consider his age and maturity. The degree of care required to be exercised must vary with the capacity of the person endangered to care for himself. A minor should not be held to the same degree of care as an adult, but his conduct should be judged according to the average conduct of persons of his age and experience. The standard of conduct to which a child must conform for his own protection is that degree of care ordinarily exercised by children of the same age, capacity, discretion, knowledge and experience under the same or similar circumstances. 4. Experts Prosser and Keeton

drug or poison under any "fraudulent name." Court struggled w/ the meaning of "fraudulent" since it is a criminal case. Standard of care: The profession of pharmacy, it has been said again and again, is one demanding care and skill. The responsibility of the druggist to use care has been variously qualified as "ordinary care," "care of a specially high degree," "the highest degree of care known to practical men." It signifies "the highest practicable degree of prudence, thoughtfulness, and vigilance, and the most exact and reliable safeguards consistent with the reasonable conduct of the business, in order that human life may not constantly be exposed to the danger flowing from the substitution of deadly poisons for harmless medicine." The "skill " required of a druggist is denominated as "high" or "ample." In order words, the care required must be commensurate with the danger involved, and the skill employed must correspond with the superior knowledge of the business which the law demands. Court: The rule of caveat emptor cannot apply to the purchase and sale of drugs An imperative duty is on the druggist to take precautions to prevent death or serious injury to anyone who relies on his absolute honesty and peculiar learning Because of this duty the law imposes upon him, mistake is negligence and care is no defense. Considering these principles, it cannot be that the Philippine Legislature intended to use the word "fraudulent" in all its strictness. A plea of accident and mistake cannot excuse for they cannot take place unless there be wanton and criminal carelessness and neglect. How the misfortune occurs in unimportant, if under all the circumstances the fact of occurrence is attributable to the druggist as a legal fault. Mercury Drug v. De Leon MD gave ear drops instead of eye drops to De Leon. Defense: it was De Leon's negligence in not reading the label that was the proximate cause of his injury. Moreover, the prescription was in the wrong form. No such drug available in the market, they gave him the only drug available. Court: MD negligent because of negligence of employee. Employee negligent in dispensing medicine even though the prescription was improper, and negligent in assuming that the drug De Leon was looking for was the one available in the market. These all point out to the fact that they failed to live up to the standard of care required of pharmacists (See Pineda above) Mistake is negligence and care is no defense: The profession of pharmacy demands great care and skill. It reminded druggists to exercise the highest degree of care known to practical men. Dispensing a wrong drug (mistake) is, by itself, gross negligence. It cannot be heard to say that it exercised proper diligence when this happens. Caveat vendor, instead of caveat emptor: In purchase and sale of drugs, the buyer has no imperative duty to ensure that the medicine he is buying is the right one. Rather, it is the seller that has the duty to insure that the drug dispensed is the correct one. There exists an imperative duty on the seller or the druggist to take precaution to prevent death or injury to any person who relies on ones absolute honesty and peculiar learning. o Reason: The nature of drugs is such that examination would not avail the purchaser anything. It would be idle mockery for the customer to make an examination of a compound of which he can know nothing. Consequently, it must be that the druggist warrants that he will deliver the drug called for. 1. Medical Professionals Cruz v. CA G.R. No. 122445. November 18, 1997 Necessity of expert testimony: case lost because of II. lack of expert testimony to establish standard of care, breach thereof, and proximate causation. What might appear as indicia of negligence is not necessarily proof that it is what caused the injury V. Facts: Lydia Umali underwent surgery to remove myoma in her uterus. Clinic untidy, no antibiotics, no blood supply, no oxygen supply in the clinic. She was later rushed to the district hospital because of shock. Died of shock due to DIC Medical malpractice suits: Can be brought as action for damages under Art. 2176 or reckless imprudence under Art. 365 RPC.

In general Culion v. Philippine Motors When a person holds himself out as being competent to do things requiring professional skill, he will be held liable for negligence if he fails to exhibit the care and skill of one ordinarily skilled in the particular work which he attempts to do. The proof shows that Quest had had ample experience in fixing the engines of automobiles and tractors, but it does not appear that he was experienced in the doing of similar work on boats.
b. Pharmacists US v. Pineda Defendant is a pharmacist prosecuted for selling barium chloride instead of potassium chloride. Under the law, as a pharmacist, he is made responsible for the quality of all drugs and poisons which he sells. It is provided that it shall be unlawful for him to sell any

Elements of reckless imprudence: 1. that the offender does or fails to do an act; 2. that the doing or the failure to do that act is voluntary; 3. that it be without malice; 4. that material damage results from the reckless imprudence; and 5. that there is inexcusable lack of precaution on the part of the offender, taking into consideration his employment or occupation, degree of intelligence, physical condition, and other circumstances regarding persons, time and place. [On the other hand, elements of action for damages is only: 1.) duty, 2.) breach, 3.) injury, 4.) proximate causation] Whether or not a physician has committed an "inexcusable lack of precaution" in the treatment of his patient is to be determined according to the standard of care observed by other members of the profession in good standing under similar circumstances bearing in mind the advanced state of the profession at the time of treatment or the present state of medical science. o In accepting a case, a doctor in effect represents that, having the needed training and skill possessed by physicians and surgeons practicing in the same field, he will employ such training, care and skill in the treatment of his patients. He therefore has a duty to use at least the same level of care that any other reasonably competent doctor would use to treat a condition under the same circumstances. Expert opinion: But while it may be true that the circumstances pointed out by the courts below seemed beyond cavil to constitute reckless imprudence...this conclusion is still best arrived at not through the educated surmises nor conjectures of laymen but by the unquestionable knowledge of expert witnesses. For whether a physician or surgeon has exercised the requisite degree of skill and care in the treatment of his patient is, in the generality of cases, a matter of expert opinion. The deference of courts to the expert opinion of qualified physicians stems from its realization that the latter possess unusual technical skills which laymen in most instances are incapable of intelligently evaluating. Expert testimony should have been offered to prove that the circumstances cited by the courts below are constitutive of conduct falling below the standard of care employed by other physicians in good standing when performing the same operation. It must be remembered that when the qualifications of a physician are admitted, as in the instant case, there is an inevitable presumption that in proper cases he takes the necessary precaution and employs the best of his knowledge and skill in attending to his clients, unless the contrary is sufficiently established. This presumption is rebuttable by expert opinion which is so sadly lacking in the case at bench.

Professional Services v. Agana G.R. No. 126297. January 31, 2007 Cancer of the sigmoid. Dr. Ampil operated on Natividad Agana but there were 2 sponges left on her body. Dr. Ampil negligent because: he left the sponge in Agana's body. It is settled that the leaving of sponges or other foreign substances in the wound after the incision has been closed is at least prima facie negligence by the operating surgeon. To put it simply, such act is considered so inconsistent with due care as to raise an inference of negligence. There are even legions of authorities to the effect that such act is negligence per se. Moreover, he breached his duty of care because he did not tell Natividad of the missing sponges. What started as negligence became willful deception in an attempt to cover up such negligence To successfully prosecute medical negligence, a patient must only prove that a health care provider either failed to do something which a reasonably prudent health care provider would have done, or that he did something that a reasonably prudent provider would not have done; and that failure or action caused injury to the patient. Simply put, the elements are duty, breach, injury and Cayao-Lasam v. Spouses Ramolete G.R. No. 159132. December 18, proximate causation. 2008 Dr. Fuentes not liable because res ipsa loquitur does not apply. Editha Ramolete was 3 months pregnant. Because of profuse The control and management of the thing which caused the injury vaginal bleeding, a D&C was conducted on her. She did not return

was not in his hands, as Dr. Ampil was the lead surgeon. Liability of hospital/standard of care required of hospitals: The duty of care owed to the patient by the hospital has expanded. The emerging trend is to hold the hospital responsible where the hospital has failed to monitor and review medical services being provided within its walls. o Many courts now allow claims for hospital vicarious liability under the theories of respondeat superior, apparent authority, ostensible authority, or agency by estoppel. o Respondeat superior applicable: Hospitals regularly employ, on a salaried basis, a large staff of physicians, interns, nurses, administrative and manual workers... There is no reason to exempt hospitals from the universal rule of respondeat superior. o Ramos v. CA: for purposes of apportioning responsibility in medical negligence cases, an employeremployee relationship in effect exists between hospitals and their attending and visiting physicians. Private hospitals, hire, fire and exercise real control over their attending and visiting consultant staff. While consultants are not, technically employees, x x x, the control exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with the exception of the payment of wages. In assessing whether such a relationship in fact exists, the control test is determining. o Apparent authority/agency by estoppel: have gained acceptance in the determination of a hospitals liability for negligent acts of health professionals. Apparent authority, or what is sometimes referred to as the holding out theory, or doctrine of ostensible agency or agency by estoppel, has its origin from the law of agency. It imposes liability, not as the result of the reality of a contractual relationship, but rather because of the actions of a principal or an employer in somehow misleading the public into believing that the relationship or the authority exists. It is essentially estoppel. o Doctrine of corporate negligence or corporate responsibility: the doctrine of corporate negligence is the judicial answer to the problem of allocating hospitals liability for the negligent acts of health practitioners, absent facts to support the application of respondeat superior or apparent authority. It proceeds from the acknowledgment that in these modern times, the duty of providing quality medical service is no longer the sole prerogative and responsibility of the physician With the passage of time, more duties were expected from hospitals, among them: (1) the use of reasonable care in the maintenance of safe and adequate facilities and equipment; (2) the selection and retention of competent physicians; (3) the overseeing or supervision of all persons who practice medicine within its walls; and (4) the formulation, adoption and enforcement of adequate rules and policies that ensure quality care for its patients. A patient who enters a hospital does so with the reasonable expectation that it will attempt to cure him. The hospital accordingly has the duty to make a reasonable effort to monitor and oversee the treatment prescribed and administered by the physicians practicing in its premises. In the present case, it was duly established that PSI operates the Medical City Hospital for the purpose and under the concept of providing comprehensive medical services to the public. Accordingly, it has the duty to exercise reasonable care to protect from harm all patients admitted into its facility for medical treatment. Unfortunately, PSI failed to perform such duty.

to the hospital for follow-up as instructed. Months later, her uterus judgment. This means that more will be required of a child of burst due to ectopic pregnancy and a hysterectomy was performed superior skill or intelligence for his age on her. Contributory negligence of children: Whenever the g. Medical malpractice is a particular form of negligence which child is engaged in an activity such as driving a car, and the public consists in the failure of a physician or surgeon to apply to his safety require that any consequence due to the child's incapacity practice of medicine that degree of care and skill which is ordinarily shall fall upon him rather than the innocent victim, that child must employed by the profession generally, under similar conditions, and be held to the adult standard, without any allowance for his age. in like surrounding circumstances. In order to successfully pursue such a claim, a patient must prove that the physician or surgeon Sangco, Children: either failed to do something which a reasonably prudent physician There is an age at which no care can be required of a child, an or surgeon would not have done, and that the failure or action age at which the doctrine of contributory negligence has no caused injury to the patient. application. There are four elements involved in medical negligence cases: Applying analogy between criminal law, and negligence which duty, breach, injury and proximate causation. Action failed because gives rise to civil liability (can be criminal or quasi-delictual): The respondents did not present expert testimony. On the other hand, rule is that a child under nine must be conclusively presumed petitioner presented expert Dr. Manalo who testified on the incapable of contributory negligence as a matter of law. This standard of care, that Lasam did not fall below the standard of care, conclusive presumption is inapplicable to children after they have and that it was not the D&C which caused the rupture of the uterus. passed age nine, since, as a general rule, after age nine but before Art.2179: It was Editha's own negligence that caused her injury, age 15 a child may or may not be guilty of contributory negligence, thus she cannot recover damages. depending upon his mental development and other circumstances. Inferentially, a child over fifteen is presumed to possess Lucas v. Dr. Tuano G.R. No. 178763. April 21, 2009 discernment and is capable of negligence, or is chargeable with knowledge of certain common dangers and hazards which must be Again, action failed because of lack of expert testimony. avoided. Petitioners were not able to prove the standard of care, breach of duty, and proximate causation. Evidence absolutely lacking. When a rebuttable presumption of incapacity is recognized, any material evidence of capacity for negligence (e.g. school Indispensability of expert testimony: The standard of care must attendance, experience in caring for himself in traffic, etc.) may be established. Absent a definitive standard of care or diligence suffice to present an issue of fact. required of Dr. Tuao under the circumstances, we have no means to determine whether he was able to comply with the same in his Where a child is engaged in ordinarily adult activities, the diagnosis and treatment of Peter. This Court has no yardstick upon standard of care required is that of an ordinarily prudent child - that which to evaluate or weigh the attendant facts of this case to be degree of care ordinarily exercised by children of the same age, able to state with confidence that the acts complained of, indeed, capacity, discretion, knowledge and experience, under the same or constituted negligence and, thus, should be the subject of similar circumstances. Where a child, by reason of having attained pecuniary reparation. a specific age, is presumed to be capable of contributory negligence, it does not follow that he should be held to the same It must be remembered that a physician is not an insurer of the standard of care as that required of an adult merely because he is good result of treatment. The mere fact that the patient does not old enough. get well or that a bad result occurs does not in itself indicate failure to exercise due care. He is not required to be infallible. Absent Professional malpractice: proof to the contrary, a doctor is presumed to have employed the 8. If a person has knowledge, skill or intelligence superior to that of requisite standard of care. the ordinary person, the law will demand of that person conduct Presumption in favor of doctor: It must be remembered that consistent with it. [Experts] must use care which is reasonable in when the qualifications of a physician are admitted, as in the light of their superior learning and experience, and any special instant case, there is an inevitable presumption that in proper skills, knowledge or training they may personally have over and cases, he takes the necessary precaution and employs the above what is normally possessed by persons in the field. best of his knowledge and skill in attending to his clients, 9. Professionals, generally, are required not only to exercise unless the contrary is sufficiently established. reasonable care in what they do, but also to possess a standard minimum of special knowledge and ability (see: Doctors). Prosser and Keeton, Sangco Notes Friday, July 08, 2011 7:26 AM The reasonable person: Objective standard used to measure the diligence of persons in different circumstances Personification of a community ideal of reasonable behavior, determined by the [judge's] social judgment Physical attribute is identical with the actor Doctors:

Mental capacity is that of a normal person - does not take into account the differing mental capacities of people o Absurd, but justified by policy considerations

Standard of care for doctors: Must have and use the knowledge, skill and care ordinarily possessed and employed by members of the profession in good standing, i.e. good medical practice Crit: Tantamount to giving the medical profession a privilege to set their own legal standard of conduct, something not available to any other class Factors to be considered: o Community in which the physician carries on his practice o ... Trespassing children Freedom of land use vs. protection of children: The interest in unrestricted freedom to make use of the land may be required, within reasonable limits, to give way to the greater social interest in the safety of the child. Attractive nuisance: Ingenious theory that makes the owner of the premises liable for the trespass of the child. Child has been allured "as a bait attracts fish, or a piece of stinking meat draws a dog." Some courts have discarded the necessity of allurement; this was important only insofar as it meant that

VI.

There is a minimum standard of knowledge which an individual who has led a normal existence is expected to have learned. His acts are also measured using this expectation of knowledge, and below this he will not be permitted to fall Children: d. Although generally liable for their torts, cannot be held to the same standard as adults e. Special standard is required because their normal condition is one of incapacity f. There is something of an individual standard: the capacity of a particular child to appreciate the risk and form a reasonable

the trespass was to be anticipated. The fact that the child was a trespasser became merely a factor to be taken into account in determining the defendant's duty and the care required of him. Less about foreseeability of harm to child and more about of a curtailment of defendant's privilege to act as he sees fit without regard to the effects on others. Even if the child fails for some reason or another to qualify for special treatment under the attractive nuisance principle, the landowner or occupier still owe the child the same limited duty owed generally to trespassers to refrain from injuring him by willful or wanton misconduct The condition which the owner/occupier is required to guard against must be one which he should recognize as involving an unreasonable risk of harm. The stress here is upon unreasonable Owner is not required to make his property child-proof, just to insure against unreasonable risk that foreseeably would bring harm or injury to a trespassing child. Doctrine of attractive nuisance has no application to common object or danger, or conditions arising from ordinary conduct of business

In motor vehicle mishaps

Art. 2184. In motor vehicle mishaps, the owner is solidarily liable with his driver, if the former, who was in the vehicle, could have, by the use of the due diligence, prevented the misfortune. It is disputably presumed that a driver was negligent, if he had been found guilty of reckless driving or violating traffic regulations at least twice within the next preceding two months. If the owner was not in the motor vehicle, the provisions of Article 2180 are applicable.

Proving Negligence ***Remember the Codal provisions for exam Friday, July 08, 2011 3:42 PM

Applicable to the second accident: Presumption arises because of past behavior. Problem: "found guilty" within the next preceding two months impossible to apply presumption because criminal case will take so long before conviction. --> virtually useless presumption. "at least twice" - does it apply to reckless driving or violating traffic regulations, once or at the same time? Should the owner be in the same vehicle for the presumption to apply? o It should not apply if the owner is not in the vehicle. o It should apply because the second sentence talks about Art.2180 Art. 2185. Unless there is proof to the contrary, it is presumed that a person driving a motor vehicle has been negligent if at the time of the mishap, he was violating any traffic regulation. Is it required that he be violating a traffic regulation at the very moment the accident took place? Sir: spirit controls. As long as there is no appreciable intervention of time, it should apply. Does the nature of the violation have to be connected with the injury? b. Possession of dangerous weapons or substances Art. 2188. There is prima facie presumption of negligence on the part of the defendant if the death or injury results from his possession of dangerous weapons or substances, such as firearms and poison, except when the possession or use thereof is indispensable in his occupation or business. 10. Injury has to be connected with mere possession. For example, if the person holds the gun, there is efficient intervening cause. Possession is a mere remote cause I think the law is trying to tell us that ordinary people have no business handling or possessing dangerous weapons or substances - but this is very loose c. Common carriers Art. 1734. Common carriers are responsible for the loss, destruction, or deterioration of the goods, unless the same is due to any of the following causes only: (1) Flood, storm, earthquake, lightning, or other natural disaster or calamity; (2) Act of the public enemy in war, whether international or civil; (3) Act of omission of the shipper or owner of the goods; (4) The character of the goods or defects in the packing or in the containers; (5) Order or act of competent public authority. Art. 1735. In all cases other than those mentioned in Nos. 1, 2, 3, 4, and 5 of the preceding article, if the goods are lost, destroyed or deteriorated, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as required in Article 1733. d. Res ipsa loquitur

Negligence by itself does not give rise to a legal action. It must have caused some harm for the law to impose liability on negligent conduct. But the fact that harm, or injury, occurred, without nothing more, is not evidence of negligence on the part of anyone. The general rule is that negligence must be proved, and never will be presumed. Evidence: Plaintiff has the burden to prove his allegations. If not, then the case will be dismissed and the defendant wins. But: exceptions. If plaintiff is able to prove evidence of circumstances which may give rise to legal presumptions, then presumptions will be applied finding defendant negligent The exception is the doctrine of res ipsa loquitur. B. Under this procedural rule, an inference of negligence is allowed when the following requisites concur: The accident is of a kind which ordinarily does not occur in the absence of someones negligence; There is usually an element of drama; an unusual accident; But not because the accident is usual does not mean that res ipsa does not apply. Unusual not because its weird, but because it is the sort of accident that does not happen if there is no negligence Most important element (for me) -> because this is what justifies the inference of negligence 2. It is caused by an instrumentality within the exclusive control of the defendant or defendants; Purpose of the requirement is to link the defendant with the inference, already established, that a negligent act caused an accident Most important element (for the court) 3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated. 1. In general

ROC Rule 131, Sec.1 - Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law. 2. Presumptions

Prosser and Keeton Negligence is presumed on the part of the defendant because of the circumstances [See requirements for the application of the

doctrine]:

Justification for the doctrine: common sense. The nature of the accident is such that everyone generally believes that it wont happen if there is no negligence. o Also, because the instrumentality is under the control of the defendant, presumption is created against him because it would be easy for him to prove that he is not negligent, if he truly is not negligent. On the other hand, the plaintiff, because he has no control over the thing which Ramos v. CA 321 SCRA 584 could be presented as evidence, the burden of presenting h. Doctrine: Res ipsa could apply in medical cases. In cases where proof is eased on his part. Res ipsa applies when the it applies, expert testimony is dispensed with. evidence is of such nature that it is under the control of the i. Why was res ipsa applied? Striking similarity with a US case, defendant, and the plaintiff has no practical means of Voss v. Bridwell, where the doctrine was also applied. obtaining it. Limits the application of res ipsa to strict forms of malpractice Procedural (form of circumstantial evidence), not substantive. Dr. Jamora's testimony not accepted because he is not an Substantive cause of action is quasi-delict. expert: pulmonologist, not allergologist. Usually based on lessons from past experience, common sense o Expert testimony not anathema to res ipsa case. It Hence, in res ipsa negligence may be deduced from the mere may still be availed of, for example to prove circumstantial occurrence of the accident itself. It allows the plaintiff to make out evidence precisely in order to set off the application of res a prima facie case of negligence, and shifts the burden of proof to ipsa. the defendant to prove that he was not negligent. Sir: three things: o Court said res ipsa applies because of the nature of Sir: statement in Ramos is most accurate the injury, the accident, and how Erlinda suffered it. But, in Should be based not on the nature of the injury but on the nature this case, there is evidence on many respects. So, it does of the accident not mean that because there is evidence, res ipsa "Under the management" vs. "under exclusive control" - there's a automatically does not apply. difference It is not just presence of evidence as to negligence, but admissible evidence of negligence. When can you invoke the doctrine? Lack of evidence; direct evidence is o Evidenciary aspect: The effect of res ipsa is to create a absent or not readily available. presumption. But here, it is applied to make the testimony III."No direct evidence" - of the negligence. Not that there is admissible of Nurse Cruz, which is an entirely different absolutely no evidence, just that there is no evidence as to the issue. negligence of the defendant IV. What you have is only circumstantial evidence of the o Preoperative evaluation is universally practiced: where negligence. did they get that? This, among other things, is not common knowledge. When does it not apply? o RIL = like Art.36. It's a way for doing something that If there is direct evidence of negligence the law does not allow in order for the court to dispense justice. If the actual cause of the injury is known, it does not apply Reconcile: Cruz, Tuano - expert evidence is indispensable. --> if question involves medical experise Ramos - res ipsa loquitur is applicable in medical cases. If it applies, expert testimony is dispensed with. o In cases where res ipsa applies, the court does not even touch upon the issue of standard of care. The breach is determined directly from the fact of the injury, which from its very nature is not something that could have happened unless there is negligence. o Rule: res ipsa loquitur applies when from common knowledge the injury is such that it cannot have happened had there been no knowledge (i.e. Ramos = common knowledge, medical expertise not needed) Sir: BUT how do you know what is common knowledge? Sir: Two questions If its a question of common knowledge or medical science 2. Contents of the testimony whether the testimony refers to something that any person could testify to, without requiring expert knowledge (e.g. something that can be seen, felt, observed Ramos v. CA) Tan v. JAM Transit G.R. No. 183198. November 25, 2009 Facts: Tan was the owner of a jitney loaded with quail eggs and duck eggs traversing Maharlika Highway. Accdg. To plaintiff, as jitney was about to turn left to the feeder road to the poblacion, overtaking JAM transit collided with the jitney, causing it to turn turtle. Driver, pahinante, injured and jeep and cargo incurred damage. JAM: not negligent, driving at 40 km/h when jeep suddenly overtook it from the right side. RTC: applied RIL. Bus driver at fault because he was violating traffic regulation when accident took place. CA: RIL not applicable because Tan had access to direct evidence (Ramirez's testimony) on the supposed negligence of Dimayuga Court: Res ipsa - rule of procedural law where negligence could be inferred from the fact of the accident occurring. Before resort to the doctrine could be had, the following circumstances must be present: The accident is of a kind which ordinarily does not occur in the absence of someones negligence; It is caused by an instrumentality within the exclusive control of the defendant or defendants; and The possibility of contributing conduct which would make the

Accident would not have happened had there been no negligence Instrument which caused injury was under exclusive control (or management?) of the defendant Control: does not require actual control, but only authority to manage the operation (see application: "captain of the ship" theory, even if the head surgeon was not the one actually operating, res ipsa is still applicable). No negligence on the part of plaintiff

PA: nature of the injury, common knowledge Layugan v. IAC 167 SCRA 363 VII. Doctrine: [Res ipsa loquitur] can be invoked when and only when, under the circumstances involved, direct evidence is absent and not readily available [O]nce the actual cause of injury is established beyond controversy, whether by the plaintiff or by the defendant, no presumptions will be involved and the doctrine becomes inapplicable when the circumstances have been so completely eludicated that no inference of defendant's liability can reasonably be made. VIII. There was evidence of Serrano's negligence, therefore res ipsa does not apply (to prove Layugan's negligence). a. Unusual: res ipsa was being used by the defense. The presumption that res ipsa creates is precisely against the defendant. --> This should only be allowed if the defendant is pursuing a counterclaim.

plaintiff responsible is eliminated. Plaintiff invoking res ipsa should not only rely on fact of the accident but must also prove the attendant circumstances allowing application of res ipsa. Res ipsa applicable here. Tan has no direct access. Ramirez testified all he could but could not remember the vivid details of the accident. With dearth of evidence, res ipsa could be invoked. Also, the accident is of the kind which does not occur unless someone is negligent. No two vehicles traversing the same lane could collide under normal circumstances. Dimayuga had exclusive control of the bus, and no negligence could be imputed to Ramirez on the basis of available evidence. 2. Photos admissible as evidence. Photos show that plaintiff's version is more credible Equipoise = both suffered damage, both could've been negligent. Plaintiff correct in relying on RIL JAM subsidiarily liable under Art.2180. Did not present evidence to exculpate itself. Crit: Res ipsa should not have been applied. Need only establish that the driver of JAM was negligent because he was violating traffic regulation Cantre v. Go, G.R. No. 160889. April 27, 2007 Droplight case Facts: Cantre is ob-gyne of Nora Go. When Go was giving birth to her fourth child, she suffered profuse bleeding due in the womb to some parts of the placenta not being completely expelled. Critical condition, Cantre tried to apply several med procedures to stop bleeding. They constantly check her blood pressure and while in this process, Cantre ordered droplight to warm unconscious Nora and her baby. When Nora was recovering, husband noticed fresh gaping wound on inner portion of arm. Injury never healed. Court: In cases involving medical negligence, the doctrine of res ipsa loquitur allows the mere existence of an injury to justify a presumption of negligence on the part of the person who controls the instrument causing the injury, provided that the following requisites concur: 1. The accident is of a kind which ordinarily does not occur in the absence of someones negligence; --> OK 2. It is caused by an instrumentality within the exclusive control of the defendant or defendants; and --> OK 3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated. --> OK Because RIL applies, it is immaterial whether injury was caused by droplight or by blood pressure cuff Liability mitigated because Cantre had been a good doctor to the Go spouses before. Batiquin v. CA G.R. No. 118231. July 5, 1996 Facts: Villegas is patient of Batiquin. Batiquin et al. conducted caesarian operation of Batiquin to deliver baby. After leaving hospital Villegas suffers from abdominal pain, lack of appetite, etc. Was not getting well so consulted second doctor. Dr. Kho discovered what she suspected to be either a tumor of the uterus or an ovarian cyst, either of which could. Second operation was performed, where Dr. Kho discovered whitish-yellow discharge inside, an ovarian cyst on each of the left and right ovaries which gave out pus, dirt and pus behind the uterus, and a piece of rubber material on the right side of the uterus embedded on the ovarian cyst, 2 inches by 3/4 inch in size. Court: In the instant case, all the requisites for recourse to the doctrine are present. First, the entire proceedings of the cesarean section were under the exclusive control of Dr. Batiquin. In this light, the private respondents were bereft of direct evidence as to the actual culprit or the exact cause of the foreign object finding its way into private respondent Villegas' body, which, needless to say, does not occur unless through the intervention of negligence. Second, since aside from the cesarean section, private respondent Villegas underwent no other operation which could have caused the offending piece of rubber to appear in her uterus, it stands to reason that such could only have been a by-product of the cesarean section performed by Dr. Batiquin. The petitioners, in this regard, failed to overcome the presumption of negligence arising from resort to the doctrine of res ipsa loquitur. Dr. Batiquin is therefore liable for negligently leaving behind a piece of rubber in private respondent Villegas' abdomen and for all the adverse effects thereof. Professional services v. Agana, supra The requisites for the applicability of the doctrine of res ipsa loquitur are:

(1) the occurrence of an injury; (2) the thing which caused the injury was under the control and management of the defendant; (3) the occurrence was such that in the ordinary course of things, would not have happened if those who had control or management used proper care; and (4) the absence of explanation by the defendant. Of the foregoing requisites, the most instrumental is the control and management of the thing which caused the injury. DM Consunji v. CA 357 SCRA 249 College Assurance v. Belfranlt G.R. No. 155604. November 22, 2007 Article 1667 - The lessee is responsible for the deterioration or loss of the thing leased, unless he proves that it took place without his fault. Court on RIL: The CA correctly applied the doctrine of res ipsa loquitur under which expert testimony may be dispensed with to sustain an allegation of negligence if the following requisites obtain: a) the accident is of a kind which does not ordinarily occur unless someone is negligent; b) the cause of the injury was under the exclusive control of the person in charge and c) the injury suffered must not have been due to any voluntary action or contribution on the part of the person injured. Petitioners alone having knowledge of the cause of the fire or the best opportunity to ascertain it, and respondent having no means to find out for itself, it is sufficient for the latter to merely allege that the cause of the fire was the negligence of the former and to rely on the occurrence of the fire as proof of such negligence. It was all up to petitioners to dispel such inference of negligence, but their bare denial only left the matter unanswered.

Defenses against charge of Negligence Thursday, July 14, 2011 11:30 AM 1. Plaintiffs negligence is proximate cause

Article 2179 -When 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 want lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded. Bernardo v. Legaspi G.R. No. 9308. December 23, 1914 PLDT v. CA G.R. No. 57079 September 29, 1989 Manila Electric v. Remoquillo G.R. No. L-8328. May 18, 1956 In these cases, defendant's negligence is only a l remote cause and plaintiff's negligence is the proximate cause of the injury. This is an absolute defense. 2. Contributory negligence of plaintiff

Prosser and Keeton: Comparative negligence (NB: common law equivalent of contributory negligence) o Common law rule: presence of contributory negligence on the part of the plaintiff bars recovery a. Contributory negligence as absolute defense b. Doctrine of last clear chance invented to ease the harshness of the rule o Comparative negligence = doctrine invented to ease the hardship occasioned by contributory negligence a. Basically an apportionment of damages; shift attention from liability to damage and divide the damage between the parties who are at fault b. Exists in civil law jurisdiction and admiralty cases o Three types:

a.

Pure comparative negligence - plaintiff's contributory negligence does not operate to bar his recovery altogether, but does serve to reduce damages in proportion to his fault. a. Simplest form b. Crit: allows major wrongdoer to recover against the minor one Modified comparative negligence - plaintiff's b.

contributory negligence does not bar recovery so long as it remains below a specified proportion of the total fault. Equal fault bar - can only recover a. if his negligence is less than that of the defendant b. Greater fault bar - can recover as long as negligence is equal to or less than the defendant c. Crit:how to compare plaintiff's negligence to that of multiple defendants Slight-gross system - plaintiff's contributory c. negligence is a bar to recovery unless his negligence is "slight" and the defendant's negligence by comparison is "gross." o Negligence v. causation - Causation cannot be divided, negligence can be. Before comparing negligence, causation must in fact be established. Once causation in fact has been established, the determination of proximate or legal cause may be a question of policy that is susceptible to proportionate division. NPC v. Heirs of Casionan G.R. No. 165969. November 27, 2008 Facts: High tension electrical transmission lines of NPC left sagging to a distance of only 8 to 10 ft. from the ground. Noble Casionan, pocket miner, died of electrocution when the tip of the bamboo pole he was carrying touched the wire Issue: Assuming he died of electrocution, whether Casionan was guilty of contributory negligence. Held: NO. Contributory negligence is conduct on the part of the injured party, contributing as a legal cause to the harm he has suffered, which falls below the standard which he is required to conform for his own protection. There is contributory negligence when the partys act showed lack of ordinary care and foresight that such act could cause him harm or put his life in danger. It is an act or omission amounting to want of ordinary care on the part of the person injured which, concurring with the defendants negligence, is the proximate cause of the injury. The underlying precept on contributory negligence is that a plaintiff who is partly responsible for his own injury should not be entitled to recover damages in full but must bear the consequences of his own negligence. o In Ma-ao Sugar Central, it was held that to hold a person as having contributed to his injuries, it must be shown that he performed an act that brought about his injuries in disregard of warnings or signs on an impending danger to health and body. In this case, there were no warning signs to inform passersby of the impending danger to their lives should they accidentally touch the high tension wires. o The violation of a statute is not sufficient to hold that the violation was the proximate cause of the injury, unless the very injury that happened was precisely what was intended to be prevented by the statute. That the pocketminers were unlicensed is no justification to leave the high tension wires sagging. Genobiagon v. CA G.R. No. 40452. October 12, 1989 Facts: Rig driven by appellant bumped an old woman crossing the street, resulting to her death. On appeal, he argues that he shouldn't have been convicted because the negligence of the old woman was the proximate cause of her death. Held: The alleged contributory negligence of the victim, if any, does not exonerate the accused. "The defense of contributory negligence does not apply in criminal cases committed through reckless imprudence, since one cannot allege the negligence of another to evade the effects of his own negligence. M.H. Rakes v. The Atlantic G.R. No. L-1719. January 23, 1907 Facts: Rakes is employee of defendant transporting iron rails from barge to the Company's yard. At a certain spot at or near the water's edge the track sagged, the tie broke, the car either canted or upset, the rails slid off and caught the plaintiff, breaking his leg, which was afterwards amputated at about the knee. Held: o On employer's duty of care to employees: Contractual relation imposes an obligation on the part of the employer to

provide safe working environment to prevent accidents. This contractual obligation, implied from the relation and perhaps so inherent in its nature to be invariable by the parties, binds the employer to provide safe appliances for the use of the employee. o Assumption of risk incident to employment: Not tenable. The employee is not presumed to have stipulated that the employer might neglect his legal duty. o On negligence of plaintiff: a. Plaintiff not negligent in continuing to work: His lack of caution in continuing at his work after noticing the slight depression of the rail was not of so gross a nature as to constitute negligence, barring his recovery under the severe American rule. On this point we accept the conclusion of the trial judge who found as facts that "the plaintiff did not know the cause of the one rail being lower than then other" and "it does not appear in this case that the plaintiff knew before the accident occurred that the stringers and rails joined in the same place." b. On walking at the side: We think that the preponderance is in favor of the defendant's contention to the extent of the general order being made known to the workmen. If so, the disobedience of the plaintiff in placing himself in danger contributed in some degree to the injury as a proximate, although not as its primary cause. a. American courts: contributory negligence bars recovery. --> grew out of trial of jury; difficulty of apportioning fault b. French: contributory negligence of the victim did not civilly relieve the person without whose fault the accident could not have happened, but that the contributory negligence of the injured man had the effect only of reducing the damages. (proportional damage doctrine) o Admiralty cases --> proportional damage rule o Civil law rule adopted. Test: Difficulty seems to be apprehended in deciding which acts of the injured party shall be considered immediate causes of the accident. The test is simple. Distinction must be between the accident and the injury, between the event itself, without which there could have been no accident, and those acts of the victim not entering into it, independent of it, but contributing to the injury sustained. Here, the event under review was the displacement of the crosspiece or the failure to replace it. This produced the event giving occasion for damages that is, the sinking of the track and the sliding of the iron rails. To this event, the act of the plaintiff in walking by the side of the car did not contribute, although it was an element of the damage which came to himself. Had the crosspiece been out of place wholly or partly thorough his act, then it would be a different story altogether. Where he contributes to the principal occurrence, as one of its determining factors, he can not recover. Where, in conjunction with the occurrence, he contributes only to his own injury, he may recover the amount that the defendant responsible for the event should pay for such injury, less a sum deemed a suitable equivalent for his own imprudence. Lambert v. Heirs of Ray Castillon G.R. No. 160709. February 23, 2005 Facts: Driver of Lambert was guilty of negligence, but Castillon also found guilty of contributory negligence Court: The underlying precept on contributory negligence is that a plaintiff who is partly responsible for his own injury should not be entitled to recover damages in full but must bear the consequences of his own negligence. The defendant must thus be held liable only for the damages actually caused by his negligence. The

determination of the mitigation of the defendants liability varies depending on the circumstances of each case. In the case at bar, it was established that Ray, at the time of the mishap: (1) was driving the motorcycle at a high speed; (2) was tailgating the Tamaraw jeepney; (3) has imbibed one or two bottles of beer; and (4) was not wearing a protective helmet. These circumstances, although not constituting the proximate cause of his demise and injury to Sergio, contributed to the same result. The contribution of these circumstances are all considered and determined in terms of percentages of the total cause. Defendant allowed to recover 50% of the damages awarded. PNR v. Brunty, supra Contributory negligence is conduct on the part of the injured party, contributing as a legal cause to the harm he has suffered, which falls below the standard to which he is required to conform for his own protection. To hold a person as having contributed to his injuries, it must be shown that he performed an act that brought about his injuries in disregard of warning or signs of an impending danger to health and body. To prove contributory negligence, it is still necessary to establish a causal link, although not proximate, between the negligence of the party and the succeeding injury.In a legal sense, negligence is contributory only when it contributes proximately to the injury, and not simply a condition for its occurrence.

Fortuitous event

Article 1174. Except in cases expressly specified by the law, or when it is otherwise declared by stipulation, or when the nature of the obligation requires the assumption of risk, no person shall be responsible for those events which could not be foreseen, or which, though foreseen, were inevitable. Juntilla v. Fontanar G.R. No. L-45637. May 31, 1985 Facts: blowing of the tire as a fortuitous event? NO Held: Rodriguez v. Red Line Transport not applicable to the case because there are specific acts of negligence on the part of the respondents. The records show that the passenger jeepney turned turtle and jumped into a ditch immediately after its right rear tire exploded. The evidence shows that the passenger jeepney was running at a very fast speed before the accident. We agree with the observation of the petitioner that a public utility jeep running at a regular and safe speed will not jump into a ditch when its right rear tire blows up. There is also evidence to show that the passenger jeepney was overloaded at the time of the accident. ... In a legal sense and, consequently, also in relation to contracts, a caso fortuito presents the following essential characteristics: (1) The cause of the unforeseen and unexpected occurrence, or of the failure of the debtor to comply with his obligation, must be independent of the human will. (2) It must be impossible to foresee the event which constitutes the caso fortuito, or if it can be foreseen, it must be impossible to avoid. (3) The occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a normal manner. And (4) the obligor (debtor) must be free from any participation in the aggravation of the injury resulting to the creditor. In the case at bar, the cause of the unforeseen and unexpected occurrence was not independent of the human will. The accident was caused either through the negligence of the driver or because of mechanical defects in the tire. Necesito v. Paras: Common carrier held to answer for the flaws of his equipment if such flaws were at all discoverable. ... Southeastern College v. CA G.R. No. 126389. July 10, 1998 Facts: Private respondents are owners of a house at 326 College Road, Pasay City, while petitioner owns a four-storey school building along the same College Road. On October 11, 1989, at about 6:30 in the morning, a powerful typhoon "Saling" hit Metro Manila. Buffeted by very strong winds, the roof of petitioner's building was partly ripped off and blown away, landing on and destroying portions of the roofing of private respondents' house. After the typhoon had

passed, an ocular inspection of the destroyed building was conducted by a team of City engineers. They allegedly found structural defects which allegedly caused the partial unroofing of the building. Issue: Whether the damage on the roof of the building of private respondents resulting from the impact of the falling portions of the school building's roof ripped off by the strong winds of typhoon "Saling", was, within legal contemplation, due to fortuitous event. Held: YES. The antecedent of fortuitous event or caso fortuito is found in the Partidas which defines it as "an event which takes place by accident and could not have been foreseen." Escriche elaborates it as "an unexpected event or act of God which could neither be foreseen nor resisted." Civilist Arturo M. Tolentino adds that "[f]ortuitous events may be produced by two general causes: (1) by nature, such as earthquakes, storms, floods, epidemics, fires, etc. and (2) by the act of man, such as an armed invasion, attack by bandits, governmental prohibitions, robbery, etc." In order that a fortuitous event may exempt a person from liability, it is necessary that he be free from any previous negligence or misconduct by reason of which the loss may have been occasioned. An act of God cannot be invoked for the protection of a person who has been guilty of gross negligence in not trying to forestall its possible adverse consequences. When a person's negligence concurs with an act of God in producing damage or injury to another, such person is not exempt from liability by showing that the immediate or proximate cause of the damages or injury was a fortuitous event. When the effect is found to be partly the result of the participation of man whether it be from active intervention, or neglect, or failure to act the whole occurrence is hereby humanized, and removed from the rules applicable to acts of God. In this case, the Court said that a typhoon is a fortuitous event. The only question is whether there has been contributory negligence so as to remove a person from the operation of the caso fortuito doctrine. Court held that petitioner's negligence was not sufficiently proven. Respondent failed to clearly show the relationship of cause and effect. --> problem of evidence: the plaintiff alleging negligence must prove his allegations. Negligence is not presumed but must be proven Disposition: Petition granted. Southeastern absolved from liability. Sicam v. Jorge, supra Fortuitous events by definition are extraordinary events not foreseeable or avoidable. It is therefore, not enough that the event should not have been foreseen or anticipated, as is commonly believed but it must be one impossible to foresee or to avoid. The mere difficulty to foresee the happening is not impossibility to foresee the same. To constitute a fortuitous event, the following elements must concur: (a) the cause of the unforeseen and unexpected occurrence or of the failure of the debtor to comply with obligations must be independent of human will; (b) it must be impossible to foresee the event that constitutes the caso fortuito or, if it can be foreseen, it must be impossible to avoid; (c) the occurrence must be such as to render it impossible for the debtor to fulfill obligations in a normal manner; and, (d) the obligor must be free from any participation in the aggravation of the injury or loss. The burden of proving that the loss was due to a fortuitous event rests on him who invokes it.24 And, in order for a fortuitous event to exempt one from liability, it is necessary that one has committed no negligence or misconduct that may have occasioned the loss. Sir: How come robbery is not FE? Robbery is foreseeable --> because its a pawnshop :D o Court: The very measures which petitioners had allegedly adopted show that to them the possibility of robbery was not only foreseeable, but actually foreseen and anticipated. Petitioner Sicams testimony, in effect, contradicts petitioners defense of fortuitous event. o Because it's foreseeable it's not FE? Then if

you put up security measures in case of earthquake then it is no longer FE? Hehe Not FE because there is negligence on the part of Sicam --> This is OK Comparison with Hernandez: place matters. Hernandez was robbed in a PUV which he has no control over. o Sicam: Sicam has control over the place. Comparison with Austria: Criminality affects foreseeability Comparison with Cruz:

Plaintiffs assumption of risk/volenti non fit injuria --> Absolute defense? Can use both defense of assumption of risk and contributory negligence since they are not mutually exclusive; they can concur in the same act. Prosser and Keeton, pp. 480-498 Three perspectives of assumption of risk: Express consent perspective - plaintiff in advance has given his express consent to relieve the defendant of an obligation of conduct towards him --> e.g. consent to the infliction of what would otherwise be an intentional tort o E.g. Contracts with express limitation of liability --> valid in our jurisdiction or not? Duty perspective - plaintiff voluntarily enters into some relation with the defendant, with knowledge that the defendant will not protect him against one or more future risks that may arise from the relation. o There is some form of legal relationship between the parties, where there is no guarantee that the other party will protect you from harm. o E.g. Afialda v. Hisole Misconduct defense perspective - plaintiff is aware of a risk that has already been created by the negligence of the defendant. o There has to be some prior negligent act of one party which you are aware of, but you proceed to take it anyway o E.g. A knows that the second hand car delivered to him has defective brakes, but proceeds to use it anyway. Assumption of risk - does not necessarily mean that plaintiff is negligent One has to weigh the benefits and risks attendant to the circumstances as perceived by the actor at that time (reasonableness of assuming the risk) --> if reasonable, then it is not contributory negligence, but it is still assumption of risk (contributory negligence - exposing yourself to unreasonable risk/harm) E.g. Person dashing into a street - contributory negligence but not necessarily assumption of risk But it is possible for the two to concur Afialda v. Hisole G.R. No. L-2075. November 29, 1949 In the present case, the animal was in custody and under the control of the caretaker, who was paid for his work as such. Obviously, it was the caretaker's business to try to prevent the animal from causing injury or damage to anyone, including himself. And being injured by the animal under those circumstances, was one of the risks of the occupation which he had voluntarily assumed and for which he must take the consequences. Sir: Strict application. If your job requires you to take care of animals, its hard to obtain relief on the basis of 2183 IS there an assumption of risk if you are taking care of a known tame or docile animal (e.g. sheep) ? Can this ruling be applied by analogy to all types of risky jobs? Probably not, because of our bias for labor Ilocos Norte v. CA G.R. No. 53401. November 6, 1989

The maxim "volenti non fit injuria" relied upon by petitioner finds no application in the case at bar. It is imperative to note the surrounding circumstances which impelled the deceased to leave the comforts of a roof and brave the subsiding typhoon. For it has been held that a person is excused from the force of the rule, that when he voluntarily assents to a known danger he must abide by the consequences, if an emergency is found to exist or if the life or property of another is in peril or when he seeks to rescue his endangered property. Clearly, an emergency was at hand as the deceased's property, a source of her livelihood, was faced with an impending loss. Furthermore, the deceased, at the time the fatal incident occurred, was at a place where she had a right to be Here COD has to be electrocution for there to be a basis of liability on the part of Ilocos Norte Sir: Exception to the assumption of risk. Yes there may be an assumption of risk here but it does not apply to her because if there is risk to life or property, assumption of risk may be allowed o Problem: how far can you take that doctrine into operation? If there is assumption of risk here, then it may be assumption of risk of drowning probably, not electrocution. Calalas v. CA, supra We find it hard to give serious thought to petitioners contention that Sungas taking an "extension seat" amounted to an implied assumption of risk. It is akin to arguing that the injuries to the many victims of the tragedies in our seas should not be compensated merely because those passengers assumed a greater risk of drowning by boarding an overloaded ferry. There was still a contract of transportation, so Calalas is not absolved from his contractual liability But isn't this still an assumption of risk? Taking an extension seat, or riding an overloaded ferry, which you know is overloaded, and worse, has no life vests o Then this is clearly assumption of risk --> could fall under all three (waiver of duty of care, express consent, misconduct defense) Does Ilocos Norte exemption apply? NO. Because there is no emergency as to life or property. But it can still be argued depending on the circumstances (e.g. sumakay ka sa extension kasi kailangan mo makauwi, for certain compelling reasons) Sir's example: Dec.23 mo lang nalaman na pwede ka pala umuwi, you bought a can of biscuit and use this as your extension seat. There is a collision and you are injured. Is there an assumption of risk? YES. Elements: knowledge and voluntary assumption o Eh yung sabit sa jeep? YES. Eh pano kung bata? Nikko Hotel v. Roberto Reyes G.R. No. 154259. February 28, 2005 TC: Mr. Reyes assumed the risk of being thrown out of the party as he was uninvited: Plaintiff had no business being at the party because he was not a guest of Mr. Tsuruoka, the birthday celebrant. He assumed the risk of being asked to leave for attending a party to which he was not invited by the host. Damages are pecuniary consequences which the law imposes for the breach of some duty or the violation of some right. Thus, no recovery can be had against defendants Nikko Hotel and Ruby Lim because he himself was at fault. Court: The doctrine of volenti non fit injuria (to which a person assents is not esteemed in law as injury) refers to self-inflicted injury or to the consent to injury which precludes the recovery of damages by one who has knowingly and voluntarily exposed himself to danger, even if he is not negligent in doing so. As formulated by petitioners, however, this doctrine does not find application to the case at bar because even if respondent Reyes assumed the risk of being asked to leave the party, petitioners, under Articles 19 and 21 of the New Civil Code, were still under obligation to treat him fairly in order not to expose him to unnecessary ridicule and shame. However, there was no such abuse of rights in this case. Sir: gatecrashing does not fall within the perspectives

Prosser and Keeton, 263-265, 272-277 Proximate cause: Proximate cause or legal cause is merely the limitation which the Pantaleon v. American Express G.R. No. 174269. August 25, courts have placed upon the actor's responsibility for the 2010 consequences of his conduct. There is an assumption of risk in this case because Pantaleon could o Rationale: As a practical matter, legal responsibility have cancelled the sale to prevent inconveniencing the tour group. must be limited to those causes which are so closely In fact he did try, but he was convinced by the manager to wait a few connected with the result and of such significance that the more minutes, which he did, even when he knew that he was law is justified in imposing liability. already late. Not necessarily a complete bar to recovery but only as This limitation is to some extent associated with the nature and degree of the connection in fact between defendant's acts and the to moral damages? injury complained of by the plaintiff Does not necessarily fall within the three perspectives Since it is a method of limiting or determining liability, it is because the injury came from the angry looks, not the delay inherently subject to policy considerations...Much confusion is (but it could be said that it is the proximate cause) rooted in trying to reconcile policy consideration with causation as fact Criticism: Sir - Where does AR fall into in our legal system? A: Art.1174 - an exception to the FE defense. In our CC, it is only an Although determining causation is an issue of fact, curiously the exception to FE defense. But in the cases which apply AR, there is classic test for determining cause is to compare what would have no FE! It is not applied in connection with Art.1174. We apply it as a occurred if hypothetical, contrary-to-fact conditions had existed common law doctrine in a very loose way. As a result the concept of "causation in fact" extends not only to In fact, it is a very unfair doctrine because any activity positive acts and active physical forces (meaning PC is not limited to positive action) but also to pre-existing passive conditions which carries with it a certain level of risk. have played a material part in bringing about the event (meaning, Prosser and Keeton: wants to remove AR doctrine PC can embrace a negative act or an omission which creates a because its very hard to apply and categorize. condition that subjects people to risk) Plaintiff has burden of proof. Mere possibility of causation is not enough. The rules on proving negligence applies. Prescription NB: Although causation is essential to liability, it does not necessarily determine it. Other considerations will come into play, Article 1146. The following actions must be instituted within four such that a person may have been negligent, but he will not be years: liable for damage caused by an actor acting independent of his will (1) Upon an injury to the rights of the plaintiff; (i.e. intentional malicious acts of TPs) (2) Upon a quasi-delict; NB: much of the confusion and problems underlying C. Kramer v. CA G.R. No. 83524. October 13, 1989 probable cause arises from the attempt of courts to deal with The petition is devoid of merit. Under Article 1146 of the Civil Code, causation and the policy issues of each case. PC being an an action based upon a quasi-delict must be instituted within four (4) ambiguous concept, it is usually used to justify a particular years. The prescriptive period begins from the day the quasi-delict is conclusion of the court, even though the conclusion was arrived at committed. It is clear that the prescriptive period must be counted without using the concept of PC itself. when the last element occurs or takes place, that is, the time of the commission of an act or omission violative of the right of the Bataclan v. Medina 102 Phil 181 plaintiff, which is the time when the cause of action arises It is Proximate cause: . . . 'that cause, which, in natural and continuous therefore clear that in this action for damages arising from the sequence, unbroken by any efficient intervening cause, produces the collision of two (2) vessels, the four (4) year prescriptive period must injury, and without which the result would not have occurred.' The be counted from the day of the collision. The aggrieved party need proximate legal cause is that acting first and producing the injury, either not wait for a determination by an administrative body like a Board immediately or by setting other events in motion, all constituting a natural of Marine Inquiry, that the collision was caused and continuous chain of events, each having a close causal connection by the fault or negligence of the other party before he can file an with its immediate predecessor, the final event in the chain immediately action for damages. effecting the injury as a natural and probable result of the cause which first Need not wait for the result of the BMI investigation acted, under such circumstances that the person responsible for the first because once all the elements of a COA is present, then that event should, as an ordinary prudent and intelligent person, have is the time that the tolling for prescriptive period begins. reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom. o It is the completion of all elements of COA. 4. Two events: overturning of the bus and fire. TC: proximate Not the time the injury happens, because the injury cause of death is fire, not overturning of the bus. Carrier liable only could happen much later (complications) for serious physical injuries Problem: Here it is OK because there are only two Court: Overturning of bus is proximate cause of death. parties. But when there are multiple defendants (e.g. Occurrence of fire is within the foreseeable risks created by the multiple collision, oil spill, etc.) --> Can't you just sue overturning of the bus. Defendant's negligence being the cause of everyone? But it will be harder for you to prosecute. the overturning of the bus, he is liable up to the death which resulted from the fire, which being foreseeable, is not an IC that Trick question: What is the prescriptive period for a tort action? :D I would exempt him from liability. guess by analogy you put it at four years...

for volenti non fit injuria Unclear application of the doctrine Not clear what the legal effect of the statement of the Court here. Cited in Pantaleon: a person who knowingly and voluntarily exposes himself to danger cannot claim damages for the resulting injury

Proximate Cause Sunday, July 24, 2011 10:53 AM 1. Proximate / Remote / Concurrent

Next meeting: Cause. After determining if there is a COA (injury, negligence, presumption of negligence, defense, etc.), next you determine the cause. OK, defendant was negligent, but was it the proximate cause.

Mercury Drug v. Baking G.R. No. 156037. May 25, 2007 Proximate cause is defined as any cause that produces injury in a natural and continuous sequence, unbroken by any efficient intervening cause, such that the result would not have occurred otherwise. Proximate cause is determined from the facts of each case, upon a combined consideration of logic, common sense, policy, and precedent. Issue: Was MD's negligence the proximate cause of the vehicular accident of Baking three days later?

Held: YES.The vehicular accident could not have occurred had petitioners employee been careful in reading Dr. Sys prescription. Without the potent effects of Dormicum, a sleeping tablet, it was unlikely that respondent would fall asleep while driving his car, resulting in a collision. MD arguing that the PC of Baking's injury (collision) was his own negligence in falling asleep while driving his car Pilipinas Bank v. CA G.R. No. 105410. July 25, 1994 Facts: Wrong deposit. Bank is arguing that the proximate cause of Flores' injury is the negligence of his own representative, hence he should not be allowed to recover on the basis of Art.2179. Court: Proximate cause: "any cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the result complained of and without which would not have occurred and from which it ought to have been foreseen or reasonably anticipated by a person of ordinary case that the injury complained of or some similar injury, would result therefrom as a natural and probable consequence." Subsumes both the "but-for" concept and "foreseeability"

independent negligent act or defective condition sets into operation the circumstances which result in injury because of the prior defective condition, such subsequent act or condition is the proximate cause. Basically, cause v. condition Far Eastern v. CA G.R. No. 130068. October 1, 1998 --> Concurrent negligence (which comprised one proximate cause) GR: Except insofar as their liability is limited or exempted by statute, the vessel or her owner are liable for all damages caused by the negligence or other wrongs of the owners or those in charge of the vessel. It is also liable even if the pilot is one who is accepted by the vessel under compulsory pilotage. In seeking a discharge from liability, it has the burden to prove that it was only the pilot who was negligent, because any negligence of the shipowner or the master which concurs with the negligence of the pilot makes them solidarily liable. Even though the pilot is compulsory, if his negligence was not the sole cause of the injury, but the negligence of the master or crew contributed thereto, the owners are liable. But the shipowner may recover from the pilot, because the latter is not discharged from liability arising from his own negligence It would appear that concurrent negligence gives rise to solidary liability as joint tortfeasors. Concurrent negligence: It may be said, as a general rule, that negligence in order to render a person liable need not be the sole cause of an injury. It is sufficient that his negligence, concurring with one or more efficient causes other than piaintiff's, is the proximate cause of the injury. Accordingly, where several causes combine to produce injuries, a person is not relieved from liability because he is responsible for only one of them, it being sufficient that the negligence of the person charged with injury is an efficient cause without which the injury would not have resulted to as great an extent, and that such cause is not attributable to the person injured. It is no defense to one of the concurrent tortfeasors that the injury would not have resulted from his negligence alone, without the negligence or wrongful acts of the other concurrent tortfeasor. Where several causes producing an injury are concurrent and each is an efficient cause without which the injury would not have happened, the injury may be attributed to all or any of the causes and recovery may be had against any or all of the responsible persons although under the circumstances of the case, it may appear that one of them was more culpable, and that the duty owed by them to the injured person was not the same.

Employee negligent in crediting the deposit to another Florencio who has a different surname. Bank employee is negligent but I seriously have no idea how the Court came to the conclusion that such negligence was the proximate cause. No discussion at all. Gabeto v. Araneta 42 Phil 252 Issue: Whether Araneta, in restraining the horse, was legally responsible for the death of Gayetano Held: NO. Araneta is not legally responsible for the death of Gayetano, his act being a remote cause. The mere fact that the defendant interfered with the carromata by stopping the horse in the manner stated would not make him liable for the death of Proceso Gayetano. It is therefore evident that the stopping of the rig by Agaton Araneta in the middle of the street was too remote from the accident that presently ensued to be considered the legal or proximate cause thereof. Moreover, by getting out and taking his post at the head of the horse, the driver was the person primarily responsible for the control of the animal, and the defendant cannot be charged with liability for the accident resulting from the action of the horse thereafter. 3. Moreover, an appreciable interval of time elapsed same witnesses say several minutes before the horse started on his career up the street. V. It is Julio the driver who might be culpable.

Manila Electric v. Remoquillo --> remote cause Liability between joint tortfeasors solidary (share and share Cause of death of Magno was his own negligence. When he was called by alike): There is no contribution between joint tortfeasors whose his stepbrother to repair the media agua just below the third story liability is solidary since both of them are liable for the total window, it is to be presumed that due to his age and experience he was damage. Where the concurrent or successive negligent acts or qualified to do omissions of two or more persons, although acting independently, so. are in combination the direct and proximate cause of a single injury Even assuming that defendant has been negligent, such to a third person, it is impossible to determine in what negligence should be the proximate cause of the injury. If plaintiff's proportion each contributed to the injury and either of them is own negligence was the cause of the injury, he may not recover responsible for the whole injury. Where their concurring (Art.2179, see also Taylor v. Manila Electric) negligence resulted in injury or damage to a third party, they become joint tortfeasors and are solidarily liable for the resulting Here, assuming arguendo that Meralco was negligent in damage under Article 2194 installing its electric wires so close to the house, and in failing to o Need not sue both parties, can sue only one to recover properly insulate those, wires, it should be shown that such the whole from said tortfeasor. Of course the latter can sue negligence is the proximate and principal cause of the accident. the other tortfeasor for his share Court: It is clear that the principal and proximate cause of the electrocution was not the electric wire, evidently a remote cause, Sir: concurrent negligence between Gavino and Kabankov which but rather the reckless and negligent act of Magno in turning comprised one proximate cause, as opposed to concurrent cause (two or around and swinging the galvanized iron sheet without taking any more concurrent proximate cause) precaution, such as looking back toward the street and at the wire Recap: no definition of proximate cause in the CC to avoid its contacting said iron sheet Remote cause: A prior and remote cause cannot be made the PC defined by jurisprudence, but this often changes. Most often quoted is the first definition in Bataclan. basis of an action if such remote cause did nothing more than furnish the condition or give rise to the occasion by which the Test in our jurisdiction: but-for - would the injury occur if that injury was made possible, if there intervened between such prior or particular cause is not there? If yes then that is not the proximate remote cause and the injury a distinct, successive, unrelated, and cause efficient cause of the injury, even though such injury would not have o Problem: when there are multiple defendants. Can happened but for such condition or occasion. If no danger existed use substantial factor test in the condition except because of the independent cause, such condition was not the proximate cause. And if an

B.

Intervening cause - only applies if there is a sequence of events Prosser and Keeton, pp. 301-319 IC: one which comes into active operation in producing the result after the negligence of the defendant. "Intervening" is used in a time sense; it refers to latter events. The issue of intervening cause is again a question of the extent of defendant's original obligation Should the defendant be held liable for harm brought about by something for which he is not responsible? Should the defendant be relieved of liability for something as to which his conduct is a cause, along with other causes? Tied with the question of foreseeability: Defendant is held liable if, and only if, the intervening cause is foreseeable. Foreseeable IC: If the IC is one which in ordinary human experience is reasonably to be anticipated, the defendant may be negligent, among other reasons, because of failure to guard against it (See Phoenix Construction; contrast with Remoquillo) NB: However, the mere fact that misconduct on the part of another might be foreseen is not of itself sufficient to place the responsibility upon the defendant, as in cases where the IC is an intentional or malicious act of third parties. Normal IC: IC which could scarcely have been contemplated by any reasonable person in place of the defendant. This has become problematic because the question of foreseeability has been diluted in certain instances, such as medical cases, risk of rescue, etc. Unforeseeable results of unforeseeable (intervening) causes: If defendant can foresee neither any anger or direct injury, nor any risk from IC, defendant is simply not negligent. However, if D is negligent, because injury of some kind may be anticipated, but an IC which could not be foreseen intervenes, the result may be different depending on the circumstances e.g. P is run down by D's car which was stolen from him Also includes FE doctrine - strange because it is some form of strict liability Foreseeable results of unforeseeable (intervening) causes: Still within the scope of defendant's original negligence. If the result is foreseeable, the manner in which it is brought about need not be, and is immaterial. However, see example of IC which consists of intentional criminal act of a TP: clearly, defendant should not be made liable. Phoenix Construction v. IAC 148 SCRA 353 Facts: Dionisio: cause of injury was the negligent parking of the dump truck. Carbonel & Phoenix: cause of injury was Dionisio's own negligence in driving fast while under the influence of liquor Court: Dionisio was in fact negligent, but the proximate cause of the mishap is still Carbonel's negligence in parking the truck askew. D's negligence is only contributory, hence the damages awarded to him were mitigated. Quoted Prosser and Keeton: Distinction between "cause" and "condition" has been discredited Carbonel's negligence as proximate cause: C's negligence was rather an indispensable and efficient cause. The collision between the dump truck and the private respondent's car would not have occurred had the dump truck not been parked askew without any warning lights or reflector devices. The improper parking of the dump truck created an unreasonable risk of injury for anyone driving down General Lacuna Street and for having so created this risk, the truck driver must be held responsible. Dionisio's negligence not an efficient intervening cause: What the Petitioners describe as an "intervening cause" was no more than a foreseeable consequence of the manner which the truck

driver had parked the dump truck. Adopted P&K: foreseeable IC does not serve to exempt defendant from liability arising from his negligence Foreseeable Intervening Causes. If the intervening cause is one which in ordinary human experience is reasonably to be anticipated or one which the defendant has reason to anticipate under the particular circumstances, the defendant may be negligence among other reasons, because of failure to guard against it; or the defendant may be negligent only for that reason. Thus one who sets a fire may be required to foresee that an ordinary, usual and customary wind arising later wig spread it beyond the defendant's own property, and therefore to take precautions to prevent that event In all of these cases there is an intervening cause combining with the defendant's conduct to produce the result and in each case the defendant's negligence consists in failure to protect the plaintiff against that very risk. Foreseeable intervening forces are within the scope original risk, and hence of the defendant's negligence. The risk created by the defendant may include the intervention of the foreseeable negligence of others... The standard of reasonable conduct may require the defendant to protect the plaintiff against 'that occasional negligence which is one of the ordinary incidents of human life, and therefore to be anticipated.' On proximate cause: The relative location in the continuum of time of the plaintiff's and the defendant's negligent acts or omissions, is only one of the relevant factors that may be taken into account. Of more fundamental importance are the nature of the negligent act or omission of each party and the character and gravity of the risks created by such act or omission for the rest of the community. Sir: why can't you argue concurrent negligence here? (Far Eastern) PA: the negligence of the two parties did not happen at the same time, i.e. it was not concurrent. Carbonel's negligence is actually an earlier event, Dionisio's negligence happened some time after that. Also it is an IC because it is foreseeable on the part of the driver to know that the negligent parking may cause injury to other persons Negligence of Carbonel is continuous

Negligence is not simultaneous. There is a semblance of a sequence between the one act and the other act. o No room for the doctrine (IC and last clear chance also) if there is no sequence between the acts C. The test Prosser and Keeton, pp. 265-269, 278-280 Several tests or formulae used to determine PC: Nearest cause: PC, when taken literally, would mean that only the antecedent which is nearest in time or space is to be regarded as the legal cause, and none other will be held responsible. o No longer applied. It is everywhere recognized that there must be some degree of progression into the causal sequence. The last human wrongdoer: Legal responsibility is placed upon the last culpable human actor; all those antecedent in time are exempted. Influenced the development of the last clear chance doctrine Crit: the last human wrongdoer is not always responsible. This test is no longer applied. Cause and condition: Distinction between active "cause" of harm and the existing "conditions" upon which that cause operated. If defendant created only a passive, static condition, the defendant is not liable. See criticism in case of Phoenix

But-for rule: An act or omission is not regarded as a cause of an event if the particular event would have occurred without it. In other words, the defendant's conduct is a cause of the event if the event would not have occurred but for that conduct. Conversely, it is not a cause if the event would have occurred without it.

Substantial factor rule: Modification of the "but for" rule, applicable when two or more causes concur to bring about an event, and either of them, operating alone, would have been sufficient to cause an identical result. Here, the defendant's conduct is a cause of the event if it was a material element and a substantial factor in bringing it about. o Alternative of P&K: When the conduct of two or more actors is so related to an event that their combined conduct, viewed as a whole, is a but-for cause of the event, and application of the but-for rule to them individually would absolve all of them, the conduct of each is a cause in fact of the event. o See also: Concurrent cause. A defendant is not necessarily relieved of liability because the negligence of another person is a contributing cause. In these situations, the negligent parties may be held as joint tortfeasors solidarily liable for the damage done. Justly attachable cause: The essential question is whether the harm which has been suffered is justly attachable to the defendant's conduct. Crit: too vague and discretionary

important part in producing the result it is quite impossible to distinguish between active forces and passive situations, particularly since, as is invariably the case, the latter are the result of other active forces which have gone before. The defendant who spills gasoline about the premises creates a "condition," but the act may be culpable because of the danger of fire. When a spark ignites the gasoline, the condition has done quite as much to bring about the fire as the spark; and since that is the very risk which the defendant has created, the defendant will not escape responsibility. Even the lapse of a considerable time during which the "condition" remains static will not necessarily affect liability; one who digs a trench in the highway may still be liable to another who fans into it a month afterward. "Cause" and "condition" still find occasional mention in the decisions; but the distinction is now almost entirely discredited. So far as it has any validity at all, it must refer to the type of case where the forces set in operation by the defendant have come to rest in a position of apparent safety, and some new force intervenes. But even in such cases, it is not the distinction between "cause" and "condition" which is important but the nature of the risk and the character of the intervening cause. E. Last Clear Chance Grouped into two perspectives: Based on the plaintiff's right to recover

System of rules: Defendant is liable if he created a force which remained active itself or created another force that remained active until it directly caused the result. o Crit: mechanical; ironclad rule ignores the various interplay of policy problems which may arise in particular situations Dy Teban v. Jose Ching G.R. No. 161803. February 4, 2008 Court: Skewed parking of the prime mover was the proximate cause of the three-way accident. 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. There is no exact mathematical formula to determine proximate cause. It is based upon mixed considerations of logic, common sense, policy and precedent. Plaintiff must, however, establish a sufficient link between the act or omission and the damage or injury. That link must not be remote or far-fetched; otherwise, no liability will attach. Test: the damage or injury must be a natural or probable result of the act or omission. Others: in Philippine jurisprudence Follows the definition of Bataclan

Antecedent negligence on the part of the plaintiff Defendant is aware of this antecedent negligence Defendant could have avoided this injury

Policy: Blame the defendant because his quality of negligence is worse Real reason is: contributory negligence in common law is harsh - it bars recovery on the part of the negligent plaintiff As basis for imputing liability to the defendant o See Picart v. Smith - last fair chance; there is no reference to the prior negligence of the plaintiff o See also Philippine Bank of Commerce, Lapanday, etc: when the two parties are both negligent and it cannot be pointed who among them is liable o Used as a sort of "bright line"

Mixed considerations of logic, common sense, policy and precedent Sufficient lihnk between act or omission D. Cause v. Condition The idea is that you are only liable if your negligence is the cause, not if it is only a condition. A condition needs to be acted upon in order to produce injury More akin to the remote cause - proximate cause dichotomy o Remote: creates condition o Proximate: causes the injury Crit: nice in academic discussions, but not in real life application

Sangco Vol I, pp. 74-81 Doctrine of last clear chance The negligence of the plaintiff does not preclude a recovery for the negligence of the defendant where it appears that the defendant, by exercising reasonable care and prudence, might have avoided injurious consequences to the plaintiff, notwithstanding the plaintiff's negligence A person who has the last clear chance or opportunity of avoiding an accident, notwithstanding the negligent acts of his opponent is considered in law solely responsible for the consequences of the accident. a.k.a. discovered peril, supervening negligence, humanitarian doctrine Ordinarily availed of by an injured party to avoid the preclusive effect of his own contributory negligence. The doctrine is considered to be a phase of the doctrine of proximate cause, with particular reference to the question of plaintiff's contributory negligence

Elements and conditions of the doctrine: May be invoked by the plaintiff if the following facts may be found: Phoenix Construction v. IAC, supra o The plaintiff was in a position of danger, and by his Discredited the distinction between cause and condition by quoting Prosser own negligence, became unable to escape from such and Keeton: position by the use of ordinary care, either because it was Many courts have sought to distinguish between the active physically impossible for him to do so (plaintiff helpless) or "cause" of the harm and the existing "conditions" upon which that he was unaware of the danger (plaintiff unaware) cause operated. If the defendant has created only a passive static Plaintiff helpless or plaintiff unaware condition which made the damage possible, the defendant is said o The defendant knew that the plaintiff was in a position not to be liable. But so far as the fact of causation is concerned, in of danger the sense of necessary antecedents which have played an Prosser and Keeton, pp. 277-278

The defendant had the last clear chance to avoid the accident by the exercise of ordinary care but failed to exercise such last clear chance, and the accident occurred as a result of such failure Who may avail: May be invoked only on the part of the person injured; may not be invoked by the defendant Purpose of the doctrine is solely for the (negligent) plaintiff's benefit. Implied admission of negligence on the part of the plaintiff But although the defendant may not invoke the doctrine, it should not preclude him from proving that it was the plaintiff who had the last clear opportunity to avert the injury complained of and thus establish that the plaintiff was guilty of negligence that was the proximate cause of the accident When it cannot be applied Cannot be invoked as between defendants who are joint tortfeasors as a test of whether only one of them should be held liable. (Bustamante) Cannot be invoked to escape liability if the action is based on culpa contractual (Consolidated Bank) Not applicable when the emergency rule applies (Engada)

Not applicable when the proximate cause has been clearly established (PNR v. Brunty) Prosser and Keeton, pp. 462-468 Plaintiff helpless: Where the plaintiff's prior negligence has placed him in a position from which he is powerless to extricate himself by the exercise of any ordinary care, and the defendant discovers his danger while there is still time to avoid it and then fails to do so, plaintiff may recover. ("conscious last clear chance" or "discovered peril") o There must be proof that the defendant discovered the situation, that he then had the time to take action which would have saved the plaintiff, and he then failed to exercise reasonable care to avert the accident. o There could also be "unconscious last clear chance", where the defendant does not discover the danger in time to avoid the injury, but he is under obligation to discover it. Plaintiff inattentive: The plaintiff is still in a position to escape, but his negligence consists in the failure to pay attention to his surroundings and discover his own peril. If the defendant discovers his danger, and his inattentiveness, and is then negligent, plaintiff may still recover Plaintiff has "unconscious" chance while defendant has "conscious" chance, although obviously neither is "last" nor "clear" All the traditional justifications for the LCC doctrine fall flat in this concept. Instead, courts choose to focus on the time interval involved j. Defendant's antecedent negligence: Where the defendant, after discovery of the danger, does what he can to avoid the injury, but his prior negligence prevents his efforts from being effective. In such a situation, usually the plaintiff cannot recover because it is illogical to hold defendant liable for failing to have the last clear chance he could have had had he not had prior negligence. Picart v. Smith, supra Mention of last clear chance as answer to the claim of contributory negligence on the part of Picart. Court said: It will be noted that the negligent acts of the two parties were not contemporaneous, since the negligence of the defendant succeeded the negligence of the plaintiff by an appreciable interval. Under these circumstances the law is that the person who has the last fair chance to avoid the impending harm and fails to do so is chargeable with the consequences, without reference to the prior negligence of the other party. IX. Antecedent negligence of Picart was a remote cause. PC negligence of Smith X. No mitigation of award of damages even if Picart was guilty of negligence too. --> Court did not say that it was contributory

Bustamante v. CA 193 SCRA 603 Facts: CA used doctrine of last clear chance to relieve the truck driver and owner of liability, saying the bus driver had the last clear chance to avoid the accident. Suit between heirs of deceased passengers and the two owners of the colliding vehicles. Doctrine: Last clear chance is not available as a defense to a codefendant in order to relieve him of responsibility (cannot be raised among joint tortfeasors to escape liability) Last clear chance: The doctrine, stated broadly, is that the negligence of the plaintiff does not preclude a recovery for the negligence of the defendant where it appears that the defendant, by exercising reasonable care and prudence, might have avoided injurious consequences to the plaintiff notwithstanding the plaintiff's negligence. In other words, the doctrine of last clear chance means that even though a person's own acts may have placed him in a position of peril, and an injury results, the injured person is entitled to recovery. As the doctrine is usually stated, a person who has the last clear chance or opportunity of avoiding an accident, notwithstanding the negligent acts of his opponent or that of a third person imputed to the opponent is considered in law solely responsible for the consequences of the accident. Does not apply when: It does not arise where a passenger demands responsibility from the carrier to enforce its contractual obligations. For it would be inequitable to exempt the negligent driver of the [common carrier] and its owners on the ground that the other driver was likewise guilty of negligence. As between defendants: The doctrine cannot be extended into the field of joint tortfeasors as a test of whether only one of them should be held liable to the injured person by reason of his discovery of the latter's peril, and it cannot be invoked as between defendants concurrently negligent. As against third persons, a negligent actor cannot defend by pleading that another had negligently failed to take action which could have avoided the injury." Phoenix v. IAC supra Defense urges application of last clear chance doctrine. While Carbonel was negligent, Dionisio had the last clear chance to avoid the accident and his injuries Court: The last clear chance doctrine of the common law was imported into our jurisdiction by Picart vs. Smith but it is a matter for debate whether, or to what extent, it has found its way into the Civil Code of the Philippines. The historical function of that doctrine in the common law was to mitigate the harshness of another common law doctrine or rule that of contributory negligence. The common law rule of contributory negligence prevented any recovery at all by a plaintiff who was also negligent, even if the plaintiff's negligence was relatively minor as compared with the wrongful act or omission of the defendant. The common law notion of last clear chance permitted courts to grant recovery to a plaintiff who had also been negligent provided that the defendant had the last clear chance to avoid the casualty and failed to do so. Accordingly, it is difficult to see what role, if any, the common law last clear chance doctrine has to play in a jurisdiction where the common law concept of contributory negligence as an absolute bar to recovery by the plaintiff, has itself been rejected, as it has been in Article 2179 of the Civil Code of the Philippines. Under Article 2179, the task of a court, in technical terms, is to determine whose negligence the plaintiff's or the defendant's was the legal or proximate cause of the injury. That task is not simply or even primarily an exercise in chronology or physics, as the petitioners seem to imply by the use of terms like "last" or "intervening" or "immediate." The relative location in the continuum of time of the plaintiff's and the defendant's negligent acts or omissions, is only one of the relevant factors that may be taken into account. Of more fundamental importance are the nature of the negligent act or omission of each party and the character and gravity of the risks created by such act or omission for the rest of the community. To accept the defense proposition is to come too close to wiping out the fundamental principle of law that a man must respond for the forseeable consequences of his own negligent act or omission. Sir's reconciliation: use last clear chance as a test in determining PC Phil Bank of Commerce v. CA 269 SCRA 695 Bank found liable. PC is the negligence of its teller in validating both deposit slips even though one of them lacked crucial info. Court: Furthermore, under the doctrine of "last clear chance" (also referred to, at times as "supervening negligence" or as "discovered peril"), petitioner bank was indeed the culpable party. This doctrine, in essence, states that

where both parties are negligent, but the negligent act of one is appreciably later in time than that of the other, or when it is impossible to determine whose fault or negligence should be attributed to the incident, the one who had the last clear opportunity to avoid the impending harm and failed to do so is chargeable with the consequences thereof. Stated differently, the rule would also mean that an antecedent negligence of a person does not preclude the recovery of damages for the supervening negligence of, or bar a defense against liability sought by another, if the latter, who had the last fair chance, could have avoided the impending harm by the exercise of due diligence. Here, assuming that private respondent RMC was negligent in entrusting cash to a dishonest employee, thus providing the latter with the opportunity to defraud the company, as advanced by the petitioner, yet it cannot be denied that the petitioner bank, thru its teller, had the last clear opportunity to avert the injury incurred by its client, simply by faithfully observing their self-imposed validation procedure. Sir's comment: The definition of last clear chance here differs from the original formulation.

Consolidated Bank v. CA 410 SCRA 562 --> LCC not applicable in a suit involving culpa contractual (see also Bustamante) The doctrine of last clear chance states that where both parties are negligent but the negligent act of one is appreciably later than that of the other, or where it is impossible to determine whose fault or negligence caused the loss, the one who had the last clear opportunity to avoid the loss but failed to do so, is chargeable with the loss. Stated differently, the antecedent negligence of the plaintiff does not preclude him from recovering damages caused by the supervening negligence of the defendant, who had the last fair chance to prevent the impending harm by the exercise of due diligence. Not applied here because it is a culpa contractual

Note again the definition

Engada v. CA 404 SCRA 478 Doctrine: LCC cannot be invoked as a defense when the emergency rule applies Court: No convincing evidence was adduced by petitioner to support his invocation of the LCC doctrine. Instead, what has been shown is the Glan v. IAC G.R. No. 70493. May 18, 1989 presence of an emergency and the proper application of the emergency Picart v. Smith remains good law. rule. Petitioners act of swerving to the Tamaraws lane at a distance of 30 Facts: Driver of Glan truck absolved of liability. It was actually Engr. Calibo meters from it and driving the Isuzu pick-up at a fast speed as it who was negligent in driving. Even ignoring the telltale indicia of his approached the Tamaraw, denied Iran time and opportunity to ponder the negligence, he would still be liable, and Zacarias (truck driver) would still situation at all. There was no clear chance to speak of. be absolved, because of doctrine of LCC Emergency rule: An individual who suddenly finds himself in a Last clear chance: The doctrine of the last clear chance provides as valid situation of danger and is required to act without much time to and complete a defense to accident liability today as it did when invoked consider the best means that may be adopted to avoid the and applied in the 1918 case of Picart vs. Smith, supra, which involved a impending danger, is not guilty of negligence if he fails to undertake similar state of facts. what subsequently and upon reflection may appear to be a better It goes without saying that the plaintiff himself was not free from solution, unless the emergency was brought by his own negligence. fault, for he was guilty of antecedent negligence in planting himself A person who is confronted with a sudden emergency might on the wrong side of the road. But as we have already stated, the have no time for thought, and he must make a prompt decision defendant was also negligent; and in such case the problem always based largely upon impulse or instinct. Thus, he cannot be held to is to discover which agent is immediately and directly responsible. the same standard of conduct as one who had an opportunity to It will be noted that the negligent acts of the two parties were not reflect, even though it later appears that he made the wrong contemporaneous, since the negligence of the defendant decision. succeeded the negligence of the plaintiff by an appreciable interval. Under these circumstances the law is that the person who has the PNR v. Brunty, supra --> LCC not applicable when the PC has been last fair chance to avoid the impending harm and fails to do so is clearly established chargeable with the consequences, without reference to the prior Facts: PNR argues that Mercelita was negligent in driving the way he did, negligence of the other party. and as he is driving a car (compared to a train), he has the last clear Here, it was Calibo who had the last clear chance. Assuming the chance to avoid the accident. truck driver was encroaching his lane, it was his duty to seize the Court: As to whether or not the doctrine of last clear chance is applicable, opportunity to avoid the accident, having seen him from a distance we rule in the negative. The doctrine of last clear chance states that where of still 30 meters away. both parties are negligent but the negligent act of one is appreciably later than that of the other, or where it is impossible to determine whose fault or negligence caused the loss, the one who had the last clear opportunity to avoid the loss but failed to do so, is chargeable with the loss. Canlas v. CA 326 SCRA 415 Stated differently, the antecedent negligence of plaintiff does not preclude Facts: Bank held liable for the approving the REM of the supposed him from recovering damages caused by the supervening negligence of "Canlas spouses" without verifying their identity. Bank negligent because it defendant, who had the last fair chance to prevent the impending harm by failed to live up to the high standard of diligence required of banks. Also, the exercise of due diligence. The proximate cause of the injury having Court applied LCC been established to be the negligence of petitioner, we hold that the Court: Under the doctrine of last clear chance, which is applicable here, above doctrine finds no application in the instant case. the respondent bank must suffer the resulting loss. In essence, the doctrine Take note again of the change in definition. This also cites of last clear chance is to the effect that where both parties are negligent but Consolidated Bank case. the negligent act of one is appreciably later in point of time than that of the other, or where it is impossible to determine whose fault or negligence brought about the occurrence of the incident, the one who had the last Lapanday v. Angala 525 SCRA 229 Facts: Both parties negligent in driving, so LCC applies clear opportunity to avoid the impending harm but failed to do so, is chargeable with the consequences arising therefrom. Stated differently, the Court: The doctrine of last clear chance states that where both parties are negligent but the negligent act of one is appreciably later than that of the rule is that the antecedent negligence of a person does not preclude other, or where it is impossible to determine whose fault or negligence recovery of damages caused by the supervening negligence of the latter, caused the loss, the one who had the last clear opportunity to avoid the who had the last fair chance to prevent the loss but failed to do so is chargeable with the loss. (NB: this time it is citing impending harm by the exercise of due diligence. Brunty in its definition). Assuming that Osmundo Canlas was negligent in giving Vicente In this case, Deocampo had the last clear chance to avoid the Maosca the opportunity to perpetrate the fraud, by entrusting to collision. Since Deocampo was driving the rear vehicle, he had full latter the owner's copy of the transfer certificates of title of subject control of the situation since he was in a position to observe the parcels of land, it cannot be denied that the bank had the last clear vehicle in front of him. chance to prevent the fraud, by the simple expedient of faithfully complying with the requirements for banks to ascertain the identity of the persons transacting with them. Persons Liable Pantrangco v. Baesa 179 SCRA 384 NB: Note again the change in definition of LCC, citing Philippine Bank of Commerce case. Friday, July 29, 2011 11:33 AM

IV.

Persons Liable

Tortfeasor and Joint Tortfeasors

Art. 2194. The responsibility of two or more persons who are liable for quasi-delict is solidary. (n) Prosser and Keeton, pp. 322-324 The term "joint tortfeasors" are used in different senses to mean often very different things. It could refer to at least two different concepts: Concerted action - as when two or more persons act together to produce one concerted tort o "Joint tortfeasors" originally referred to vicarious liability for concerted action. o Joint enterprise: when several parties come together to do an unlawful act, the act of one is the act of all, and each is liable for the entire damage done. o All those who, in pursuance of a common plan or design to commit a tortious act, actively take part in it, or further it by cooperation or request, or who lend aid or encouragement to the wrongdoer, or ratify and adopt the wrongdoer's acts done for their benefit, are equally liable. o Express agreement is not necessary, all that is required is that there be a tacit understanding. o See also criminal conspiracy --> can conspiracy be itself a tort? Joinder as defendants - see Far Eastern case, for example, when there is concurrent negligence Worcester v. Ocampo 22 Phil 42 Issue: as to the matter of the joint and several liability of the co-owners and editors of El Renacimiento Court: The basis of the present action is tort. The universal doctrine is that each joint tort feasor is not only individually liable for the tort in which he participates, but is also jointly liable with his tort feasors. The defendants may be sued separately for the commission of the tort, or they may be sued jointly and severally, as they were here. If several persons jointly commit a tort, the plaintiff or person injured, has his election to sue all or some of the parties jointly, or one of them separately, because the tort is in its nature a separate act of each individual. It is not necessary that the cooperation should be a direct, corporeal act, [for even]a person who counsels, aids or assists in any way the commission of a wrong is liable. Under the common law, he who aided or assisted or counseled, in any way, the commission of a crime, was as much a principal as he who inflicted or committed the actual tort. 2. Joint tort feasors are all the persons who command, instigate, promote, encourage, advise, countenance, cooperate in, aid or abet the commission of a tort, or who approve of it after it is done, if done for their benefit. They are each liable as principals, to the same extent and in the same manner as if they had performed the wrongful act themselves. Joint tort feasors are jointly and severally liable for the tort which they commit. The person injured may sue all of them, or any number less than all. Each is liable for thewhole damage caused by all, and all together are jointly liable for the whole damage. It is no defense for one sued alone, that the others who participated in the wrongful act are not joined with him as defendants; nor is it any excuse for him that his participation in the tort was insignificant as compared with that of the others. Joint tort feasors are not liable pro rata. The damages can not be apportioned among them, except among themselves. They can no insist upon an apportionment, for the purpose of each paying an aliquot part. They are jointly and severally liable for the full amount. A payment in full of the damage done, by one of the joint tort feasors, of course satisfies any claim which might exist against the others. Of course the courts during the trial may find that some of the alleged joint tort feasors are liable and that others are not liable. The courts may release some for lack of evidence while condemning others of the alleged tort feasors. B. Possessors of Animals

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. Vestil v. IAC 179 SCRA 47 Facts: Thenese Uy died of bronchopneumonia, allegedly a complication of when she was bitten by a dog owned by petitioners. Purita Vestil tried to disclaim liability by saying that the dog in question was owned by her deceased father, and the house where Uy was bitten was not in her possession, much less owned by her, for her father's estate was yet to be partitioned among the heirs. Held: In applying Art. 2183, ownership of the animal in question is immaterial, for possession alone is enough. The question is who was in possession of the dog. Court held that it was Vestil who was in possession of the house, and the dog, in question. XI. Article 2183 of the Civil Code holds the possessor liable even if the animal should "escape or be lost" and so be removed from his control. And it does not matter either that, as the petitioners also contend, the dog was tame and was merely provoked by the child into biting her. The law does not speak only of vicious animals but covers even tame ones as long as they cause injury. According to Manresa the obligation imposed by Article 2183 of the Civil Code is not based on the negligence or on the presumed lack of vigilance of the possessor or user of the animal causing the damage. It is based on natural equity and on the principle of social interest that he who possesses animals for his utility, pleasure or service must answer for the damage which such animal may cause. --> Q: so, if its not based on negligence, it cannot be quasidelict, much less negligence tort. What is it then, strict liability tort C. Owner of motor vehicles Article 2184. In motor vehicle mishaps, the owner is solidarily liable with his driver, if the former, who was in the vehicle, could have, by the use of the due diligence, prevented the misfortune. It is disputably presumed that a driver was negligent, if he had been found guilty or reckless driving or violating traffic regulations at least twice within the next preceding two months. Chapman v. Underwood 27 Phil 374 Facts: Driver was found guilty of negligence. The issue is whether owner, who was in the car with the driver, could be held solidarily liable with the driver. Held: The defendant, however, is not responsible for the negligence of his driver, under the facts and circumstances of this case. As we have said in the case of Johnson vs. David (5 Phil. 663), the driver does not fall within the list of persons in article 1903 of the Civil Code for whose acts the defendant would be responsible. Although in the David case the owner of the vehicle was not present at the time the alleged negligent acts were committed by the driver, the same rule applies where the owner is present, unless the negligent act of the driver are continued for such a length of time as to give the owner a reasonable opportunity to observe them and to direct his driver to desist therefrom. An owner who sits in his automobile, or other vehicle, and permits his driver to continue in a violation of the law by the performance of negligent acts, after he has had a reasonable opportunity to observe them and to direct that the driver cease therefrom, becomes himself responsible for such acts. On the other hand, if the driver, by a sudden act of negligence, and without the owner having a reasonable opportunity to prevent the acts or its continuance, injures a person or violates the criminal law, the owner of the automobile, although present therein at the time the act was committed, is not responsible, either civilly or criminally, therefor. The act complained of must be continued in the presence of the owner for such a length a time that the owner, by his acquiescence, makes his driver's act his own. In the case before us it does not appear from the record that, from the time the automobile took the wrong side of the road to the commission of the injury, sufficient time intervened to give the defendant an opportunity to correct the act of his driver.

Caedo v. Yu Khe Thai 135 Phil 399 Facts: Vehicular accident between car driven by Caedo and that of Yu Khe Thai, with his driver Bernardo. Bernardo overtakes carretela, catching the rig's left wheel, wrenching it off and carrying it along when it skidded to the other lane, colliding with Mecury car driven by Caedo. Bernardo found negligent. Issue is whether Yu Khe Thai should be solidarily liable. Held: Art. 2184 applied. Under the foregoing provision, if the causative factor was the driver's negligence, the owner of the vehicle who was present is likewise held liable if he could have prevented the mishap by the exercise of due diligence. Cited Chapman v. Underwood: The owner is not liable, unless the negligent acts of the driver are continued for such a length of time as to give the owner a reasonable opportunity to observe them and to direct his driver to desist therefrom. time the act was committed, is not responsible, either civilly or criminally, therefor. The act complained of must be continued in the presence of the owner for such a length of time that the owner, by his acquiescence, makes his driver act his own. The basis of the master's liability in civil law is not respondent superior but rather the relationship of paterfamilias. The theory is that ultimately the negligence of the servant, if known to the master and susceptible of timely correction by him, reflects his own negligence if he fails to correct it in order to prevent injury or damage. 4. Here, Yu Khe Thai cannot be liable, because the time element was such that there was no reasonable opportunity for Yu Khe Thai to assess the risks involved and warn the driver accordingly. D. Provinces, Cities, Municipalities Article 2189. Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by, any person by reason of the defective condition of roads, streets, bridges, public buildings, and other public works under their control or supervision. Guilatco v. Dagupan 171 SCRA 382 Facts: Guilatco, a court stenographer, fell into a manhole located in Perez Blvd. (a national road) in Dagupan City causing her leg to be fractured. The city contends that Perez Boulevard is a national road that is not under the control or supervision of the City of Dagupan. Hence, no liability should attach to the city. It submits that it is actually the Ministry of Public Highways that has control or supervision through the Highway Engineer which, by mere coincidence, is held concurrently by the same person who is also the City Engineer of Dagupan. Issue: Whether control or supervision over a national road by the City of Dagupan exists, in effect binding the city to answer for damages in accordance with article 2189 of the Civil Code. Held: Interpretation of Art.2189: It is not even necessary for the defective road or street to belong to the province, city or municipality for liability to attach. The article only requires that either control or supervision is exercised over the defective road or street. Here, Dagupan City exercises such control or supervision, as provided in its charter Quezon City v. Decara G.R. No. 150304. June 15, 2005 Facts: Dacara Jr. rammed into a pile of earth diggings at Matahimik St., which was being repaired. Car turned turtle and Dacara Jr. allegedly sustained injuries. In a suit for damages against QC, defendants admitted the incident but raised as defense that they put up warning signs in the area in question; it was Dacara's negligence for driving fast that caused his own injuries, and so the defendants should be absolved from liability. TC and CA found for Dacara. QC insists that it exercised due diligence in installing preventive warning devices; it was Dacara who was negligent; and the court erred in using Art. 2189, which supposedly applied only to liability for the death or injuries suffered by a person, not for damage to property. Held: QC's negligence was PC. Contrary to its claims, there were no such warning devices in the diggings in question. Most glaring evidence is the police report that none was found at the scene of the accident. VI. The provisions of Article 2189 of the New Civil Code capsulizes the responsibility of the city government relative to the maintenance of roads and bridges since it exercises the control and supervision over the same. Failure of the defendant to comply with the statutory provision found in the subject-article is tantamount to negligence per se which renders the City government liable. NB: Exemplary damages awarded. E. Proprietors of buildings

Art. 2190. The proprietor of a building or structure is responsible for the damages resulting from its total or partial collapse, if it should be due to the lack of necessary repairs. (1907) Art. 2191. Proprietors shall also be responsible for damages caused: (1) By the explosion of machinery which has not been taken care of with due diligence, and the inflammation of explosive substances which have not been kept in a safe and adequate place; (2) By excessive smoke, which may be harmful to persons or property; (3) By the falling of trees situated at or near highways or lanes, if not caused by force majeure; (4) By emanations from tubes, canals, sewers or deposits of infectious matter, constructed without precautions suitable to the place. Art. 2192. If damage referred to in the two preceding articles should be the result of any defect in the construction mentioned in Article 1723, the third person suffering damages may proceed only against the engineer or architect or contractor in accordance with said article, within the period therein fixed. (1909) F. Engineer/Architect of Collapsed Building Art. 1723. The engineer or architect who drew up the plans and specifications for a building is liable for damages if within fifteen years from the completion of the structure, the same should collapse by reason of a defect in those plans and specifications, or due to the defects in the ground. The contractor is likewise responsible for the damages if the edifice falls, within the same period, on account of defects in the construction or the use of materials of inferior quality furnished by him, or due to any violation of the terms of the contract. If the engineer or architect supervises the construction, he shall be solidarily liable with the contractor. Acceptance of the building, after completion, does not imply waiver of any of the cause of action by reason of any defect mentioned in the preceding paragraph. The action must be brought within ten years following the collapse of the building. (n) G.Head of a family for things thrown/falling Art. 2193. The head of a family that lives in a building or a part thereof, is responsible for damages caused by things thrown or falling from the same. (1910) Dingcong v. Kanaan 72 Phil 14 Facts: Brothers Loreto Dingcong and Jose Dingcong are [lessees?] of one Emilia Saenza, on whose house they established Central Hotel. Francisco Echeverria, who occupied Room No.10 of the hotel, one night while lying on the bed left the faucet open. Because the pipes of the hotel are in need of repair, around midnight the pipes broke down and water rushed to the "American Bazar" establishment on the first floor, destroying some articles/merchandise for sale. Kanaan, the owner of AB, sues Echeverria and Dingcong brothers. The court a quo held Loreto liable but absolved Jose and Francisco. Kanaan et al. appealed this to the CA, which reversed TC and held Jose liable. Held: Jose is liable because he is coarrendatario and manager of the hotel. He has complete possession of the house, hence has to respond to damages caused by objects that falls from the same (Art.1910). Francisco is liable for his negligence that caused the injury. Jose, on his part, did not practice the diligence of a good father of the family in preventing the damage, for he did not cause the repair of the faulty pipes, by reason of which Francisco was led to believe that it was safe to use the faucets [?] B. Owners of Enterprises/other employers Art. 1711. Owners of enterprises and other employers are obliged to pay compensation for the death of or injuries to their laborers, workmen, mechanics or other employees, even though the event may have been purely accidental or entirely due to a fortuitous cause, if the death or personal injury arose out of and in the course of the employment. The employer is also liable for compensation if the employee contracts any illness or disease caused by such employment or as the result of the nature of the employment. If the mishap was due to the employee's own notorious negligence, or voluntary act, or drunkenness, the employer shall not be liable for compensation. When the employee's lack of due care contributed to his death or injury, the compensation shall be equitably reduced.

Art. 1712. If the death or injury is due to the negligence of a fellow worker, the latter and the employer shall be solidarily liable for compensation. If a fellow worker's intentional malicious act is the only cause of the death or injury, the employer shall not be answerable, unless it should be shown that the latter did not exercise due diligence in the selection or supervision of the plaintiff's fellow worker. Afable v. Singer Sewing Machine 58 Phil 39 Leopoldo Madlangbayan was a collector for the Singer Sewing Machine Company in the district of San Francisco del Monte, who was supposed to be residing in the district according to company records. Without informing Singer, LM moved to Teodora Alonso St. in Manila. While riding a bicycle on his return home after making collections in San Francisco del Monte, LM was run over and killed by a truck. His widow tried to recover burial expenses and compensationfrom the employer under Act No. 3428, as amended by Act no. 3812: When any employee receives a personal injury from any accident due to in the pursuance of the employment, or contracts any illness directly caused by such employment or the result of the nature of such employment, his employer shall pay compensation in the sums and to the persons hereinafter specified. Held: The accident which caused the death of the employee was not due to and in pursuance of his employment. At the time that he was over by the truck Leopoldo was not in the pursuance of his employment with the defendant corporation, but was on his way home after he had finished his work for the day and had left the territory where he was authorized to take collections for the defendant. The employer is not an insurer "against all accidental injuries which might happen to an employee while in the course of the employment", and as a general rule an employee is not entitled to recover from personal injuries resulting from an accident that befalls him while going to or returning from his place of employment, because such an accident does no arise out of and in the course of his employment. It was not the intention of the legislature to make the employer an insurer against all accidental injuries which might happen to an employee while in the course of the employment, but only for such injuries arising from or growing out of the risks peculiar to the nature of the work in the scope of the workman's employment of incidental to such employment, and accidents in which it is possible to trace the injury to some risk or hazard to which the employee is exposed in a special degree by reason of such employment. Risks to which all persons similarly situated are equally exposed and not traceable in some special degree to the particular employment are excluded. Alarcon v. Alarcon 112 Phil 389 Issue: Whether defendant could be held liable for the death of Urzino. Held: Art. 1171 applies only to "owners of enterprises or other employers", meaning those engaged in business or industry/trade. Alarcon, not being owner of enterprises or employer of laborers in industry or business", is not liable under Article 1171 to pay compensation for the death of Urzino Azaa, the same being purely accidental in nature. Defendant herein does not own any enterprise. He is merely a school teacher who needed a well. Neither does he fall under the category of "other employers" mentioned in said Article 1711. Under the principle of ejusdem generis, said "other employers" must be construed to refer to persons who belong to a class analogous to "owners of enterprises", such as those operating a business or engaged in a particular industry or trade, requiring its managers to contract the services of laborers, workers and/or employees. The terms "capital", "management", "industrialist", "manager" and "owners of enterprises", used to describe the employers alluded to in said section 2, indicate that they contemplate those engaged more or less in business or industry. k. As explained in Sec.39 (b) of Workmen's Compensation Act, it does not include a person whose employment is purely casual and is not for the purposes of the occupation or business of the employer. . .Inasmuch as the employment of Urzino Azaa by defendant herein was "purely casual" and was not "for the purposes of the occupation or business" of said defendant, it is clear to us that Urzino Azaa is not covered by the provisions of the Workmen's Compensation Act. C. Manufacturers/Producers

Art. 2187. Manufacturers and processors of foodstuffs, drinks, toilet articles and similar goods shall be liable for death or injuries caused by any noxious or harmful substances used, although no contractual relation exists between them and the consumers. (n) Art. 1170. Those who in the performance of their obligations are guilty of fraud, negligence, or delay, and those who in any manner contravene the tenor thereof, are liable for damages. (1101) Art. 1171. Responsibility arising from fraud is demandable in all obligations. Any waiver of an action for future fraud is void. (1102a) Art. 1172. Responsibility arising from negligence in the performance of every kind of obligation is also demandable, but such liability may be regulated by the courts, according to the circumstances. (1103) Consumer Act: Art. 97. Liability for the Defective Products. - Any Filipino or foreign manufacturer, producer, and any importer, shall be liable for redress, independently of fault, for damages caused to consumers by defects resulting from design, manufacture, construction, assembly and erection, formulas and handling and making up, presentation or packing of their products, as well as for the insufficient or inadequate information on the use and hazards thereof. A product is defective when it does not offer the safety rightfully expected of it, taking relevant circumstances into consideration, including but not limited to: (a) presentation of product; (b) use and hazards reasonably expected of it; (c) the time it was put into circulation. A product is not considered defective because another better quality product has been placed in the market. The manufacturer, builder, producer or importer shall not be held liable when it evidences: (a) that it did not place the product on the market; (b) that although it did place the product on the market such product has no defect; (c) that the consumer or a third party is solely at fault. Art. 99. Liability for Defective Services. - The service supplier is liable for redress, independently of fault, for damages caused to consumers by defects relating to the rendering of the services, as well as for insufficient or inadequate information on the fruition and hazards thereof. The service is defective when it does not provide the safety the consumer may rightfully expect of it, taking the relevant circumstances into consideration, including but not limited to: (a) the manner in which it is provided; (b) the result of hazards which may reasonably be expected of it; (c) the time when it was provided. A service is not considered defective because of the use or introduction of new techniques. The supplier of the services shall not be held liable when it is proven: (a) that there is no defect in the service rendered; (b) that the consumer or third party is solely at fault. Art. 106. Prohibition in Contractual Stipulation. - The stipulation in a contract of a clause preventing, exonerating or reducing the obligation to indemnify for damages effected, as provided for in this and in the preceding Articles, is hereby prohibited, if there is more than one person responsible for the cause of the damage, they shall be jointly liable for the redress established in the pertinent provisions of this Act. However, if the damage is caused by a component or part incorporated in the product or service, its manufacturer, builder or importer and the person who incorporated the component or part are jointly liable. Republic Act No. 9803 J. 1. Vicarious Liability Parents /Guardians

Art. 2180. 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. The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company. Guardians are liable for damages caused by the minors or incapacitated persons who are under their authority and live in their company.

The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions. 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 special agent; but not when the damage has been caused by the official to whom the task done properly pertains, in which case what is provided in Article 2176 shall be applicable. Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices, so long as they remain in their custody. 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. (1903a) Art. 2181. Whoever pays for the damage caused by his dependents or employees may recover from the latter what he has paid or delivered in satisfaction of the claim. (1904) Family Code Art. 216. In default of parents or a judicially appointed guardian, the following person shall exercise substitute parental authority over the child in the order indicated: (1) The surviving grandparent, as provided in Art. 214; (2) The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified; and (3) The child's actual custodian, over twenty-one years of age, unless unfit or disqualified. Whenever the appointment or a judicial guardian over the property of the child becomes necessary, the same order of preference shall be observed. Art. 217. In case of foundlings, abandoned neglected or abused children and other children similarly situated, parental authority shall be entrusted in summary judicial proceedings to heads of children's homes, orphanages and similar institutions duly accredited by the proper government agency. (314a) Art. 218. The school, its administrators and teachers, or the individual, entity or institution engaged in child are shall have special parental authority and responsibility over the minor child while under their supervision, instruction or custody. Authority and responsibility shall apply to all authorized activities whether inside or outside the premises of the school, entity or institution. (349a) Art. 219. Those given the authority and responsibility under the preceding Article shall be principally and solidarily liable for damages caused by the acts or omissions of the unemancipated minor. The parents, judicial guardians or the persons exercising substitute parental authority over said minor shall be subsidiarily liable. The respective liabilities of those referred to in the preceding paragraph shall not apply if it is proved that they exercised the proper diligence required under the particular circumstances. All other cases not covered by this and the preceding articles shall be governed by the provisions of the Civil Code on quasi-delicts. (n) Art. 221. Parents and other persons exercising parental authority shall be civilly liable for the injuries and damages caused by the acts or omissions of their unemancipated children living in their company and under their parental authority subject to the appropriate defenses provided by law. (2180(2)a and (4)a ) Art. 236. Emancipation for any cause shall terminate parental authority over the person and property of the child who shall then be qualified and responsible for all acts of civil life. (412a) Revised Penal Code Art. 101. Rules regarding civil liability in certain cases. The exemption from criminal liability established in subdivisions 1, 2, 3, 5 and 6 of Article 12 and in subdivision 4 of Article 11 of this Code does not include exemption from civil liability, which shall be enforced subject to the following rules: First. In cases of subdivisions 1, 2, and 3 of Article 12, the civil liability for acts committed by an imbecile or insane person, and by a

person under nine years of age, or by one over nine but under fifteen years of age, who has acted without discernment, shall devolve upon those having such person under their legal authority or control, unless it appears that there was no fault or negligence on their part. Should there be no person having such insane, imbecile or minor under his authority, legal guardianship or control, or if such person be insolvent, said insane, imbecile, or minor shall respond with their own property, excepting property exempt from execution, in accordance with the civil law. Second. In cases falling within subdivision 4 of Article 11, the persons for whose benefit the harm has been prevented shall be civilly liable in proportion to the benefit which they may have received. The courts shall determine, in sound discretion, the proportionate amount for which each one shall be liable. When the respective shares cannot be equitably determined, even approximately, or when the liability also attaches to the Government, or to the majority of the inhabitants of the town, and, in all events, whenever the damages have been caused with the consent of the authorities or their agents, indemnification shall be made in the manner prescribed by special laws or regulations. Third. In cases falling within subdivisions 5 and 6 of Article 12, the persons using violence or causing the fears shall be primarily liable and secondarily, or, if there be no such persons, those doing the act shall be liable, saving always to the latter that part of their property exempt from execution. Republic Act No. 9344 Sec. 6. Minimum Age of Criminal Responsibility. A child 15 years of age or under at the time of the commission of the offense shall be exempt from criminal liability. However, the child shall be subjected to an intervention program pursuant to Section 20 of the Act. A child above 15 years but below 18 years of age shall likewise be exempt from criminal liability and be subjected to an intervention program, unless he/she has acted with discernment, in which case, such child shall be subjected to the appropriate proceedings in accordance with this Act, The exemption from criminal liability herein established does not include exemption from civil liability, which shall be enforced in accordance with existing laws. Libi v. IAC 214 SCRA 16 Liability of parents for quasi-delict of their minor children as contemplated in Art.2180 is direct and primary, and not subsidiary as erroneously held by IAC. If it is subsidiary liability, defense of bonus l paterfamilias cannot be raised. Applying 2194, parents are solidarily liable with the l child. The liability of parents for felonies is likewise primary l and not subsidiary, per Art.101 of the RPC. For both quasi-delicts and crimes, the parents primarily respond for damages caused by their minor kids; minor kids shall be answerable or shall respond with their own property only in the absence or in the case of insolvency of the parents. Tamargo v. CA 209 SCRA 518 Issue: Whether or not the effects of adoption, insofar as parental authority is concerned may be given retroactive effect so as to make the adopting parents the indispensable parties in a damage case filed against their adopted child, for acts committed by the latter, when actual custody was yet lodged with the biological parents. Held: NO. We do not consider that retroactive effect may be giver to the decree of adoption so as to impose a liability upon the adopting parents accruingat a time when adopting parents had no actual or physically custody over the adopted child. In the instant case, the shooting of Jennifer by Adelberto with an air rifle occured when parental authority was still lodged in respondent Bundoc spouses. It would thus follow that the natural parents who had then actual custody of the minor Adelberto, are the indispensable parties to the suit for damages. Not only would it be unfair and unconscionable to give l a retroactive effect, such a result, would also be inconsistent with the philosophical and policy basis underlying the doctrine of vicarious liability. Doctrine of vicarious liability: "doctrine of imputed l negligence" in common law tort. A person is not only liable for torts committed by himself, but also for torts committed by others with

whom he has a certain relationship and for whom he is responsible. o Basis for doctrine of vicarious liability: Cangco v. Manila Railroad: Liability [for extracontractual obligation] is limited to a person who is morally culpable. This moral responsibility may consist in having failed to exercise due care in one's own acts, or in having failed to exercise due care in the selection and control of one's agent or servants, or in the control of persons who, by reasons of their status, occupy a position of dependency with respect to the person made liable for their conduct. o Liability is extended for the negligence of those persons whose acts or omissions are imputable, by a legal fiction, to others who are in a position to exercise an absolute or limited control over them. Reason behind the doctrine of vicarious liability l (as to parents): Parental authority. o The civil liability imposed upon parents for the torts of their minor children living with them (see also Family Code), may be seen to be based upon the parental authority vested by the Civil Code upon such parents. The civil law assumes that when an unemancipated child living with its parents commits a tortious acts, the parents were negligent in the performance of their legal and natural duty closely to supervise the child. Parental liability is, in other words, anchored upon parental authority coupled with presumed parental dereliction in the discharge of the duties accompanying such authority. The parental dereliction is, of course, only presumed and the presumption can be overtuned under Article 2180 of the Civil Code by proof that the parents had exercised all the diligence of a good father of a family to prevent the damage. 1. Teachers/School

Article 2180 Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices, so long as they remain in their custody. 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. Family Code Art. 218. The school, its administrators and teachers, or the individual, entity or institution engaged in child are shall have special parental authority and responsibility over the minor child while under their supervision, instruction or custody. Authority and responsibility shall apply to all authorized activities whether inside or outside the premises of the school, entity or institution. (349a)

Palisoc v. Brillantes 41 SCRA 548 Facts: Daffon boxed Palisoc resulting to his death. Question is whether the impleaded defendants (member of Board, President, and teacher) should be held solidarily liable with Daffon. TC ruled: NO, 2180 applies only when the pupil resides with the head of school of arts and trades, so that control and supervision over the pupil passes from the parents to the head of the school. Court: Under Art.2180 defendants head and teacher of the Manila Technical Institute (defendants Valenton and Quibulue, respectively) are liable jointly and severally for damages to plaintiffs-appellants for the death of the latter's minor son. Rationale: The rationale of such liability of school l heads and teachers for the tortious acts of their pupils and students, so long as they remain in their custody, is that they stand, to a certain extent, as to their pupils and students, in loco parentis and are called upon to "exercise reasonable supervision over the conduct of the child." In the law of torts, the governing principle is that the l protective custody of the school heads and teachers is mandatorily substituted for that of the parents, and hence, it becomes their obligation as well as that of the school itself to provide proper supervision of the students' activities during the whole time that they are at attendance in the school, including recess time There is a duty on the part of the school, as well as l those exercising substitute parental authority,to take the necessary precautions to protect the students in their custody from dangers and hazards that would reasonably be anticipated, including injuries that some student themselves may inflict JBL Reyes in Exconde: "the basis of the presumption l of negligence of Art. 1903 [now 2180] is some culpa in vigilando that the parents, teachers, etc. are supposed to have incurred in the exercise of their authority". "Where the parent places the child under the effective authority of the teacher, the latter, and not the parent, should be the one answerable for the torts committed while under his custody, for the very reason that the parent is not supposed to interfere with the discipline of the school nor with the authority and supervision of the teacher while the child is under instruction." "so long as [the students] remain in their custody" l means the protective and supervisory custody that the school and its heads and teachers exercise over the pupils and students for as long as they are at attendance in the school, even during recess. Dicta in Mercado (as well as in Exconde) on which it relied, must now be deemed to have been set aside by the present decision. .

Amadora v. CA 160 SCRA 315 General rule: for the injuries caused by the student, the teacher and not the parent shall be held responsible if the tort was committed within the premises of the school at any time when its authority could be validly exercised over him. Issue: Whether or not Article 2180 covers even establishments which are RPC technically not schools of arts and trades, and, if so, when the offending Art. 102. Subsidiary civil liability of innkeepers, tavernkeepers and student is supposed to be "in its custody." proprietors of establishments. In default of the persons criminally Held: The provision in question should apply to all schools, academic as liable, innkeepers, tavernkeepers, and any other persons or corporations well as non-academic. GR: Where the school is academic rather than shall be civilly liable for crimes committed in their establishments, in all cases where a violation of municipal ordinances or some general or special technical or vocational in nature, responsibility for the tort committed by the student will attach to the teacher in police regulation shall have been committed by them or their employees. charge of such student, following the first part of the provision. E: In the Innkeepers are also subsidiarily liable for the restitution of goods taken by robbery or theft within their houses from guests lodging therein, or case of establishments of arts and trades, it is the head thereof, and only he, who shall be held liable as an exception to for the payment of the value thereof, provided that such guests shall have the general rule. notified in advance the innkeeper himself, or the person representing him, of the deposit of such goods within the inn; and shall furthermore have Rule: teachers in general shall be liable for the acts of l followed the directions which such innkeeper or his representative may their students except where the school is technical in nature, in have given them with respect to the care and vigilance over such goods. which case it is the head thereof who shall be answerable. No liability shall attach in case of robbery with violence against or Reddendo singula singulis l intimidation of persons unless committed by the innkeeper's employees. JBL Reyes: in the phrase "teachers or heads of l establishments of arts and trades" used in Art. 1903 of the old Civil Art. 103. Subsidiary civil liability of other persons. The subsidiary Code, liability established in the next preceding article shall also apply to the words "arts and trades" does not qualify "teachers" but only employers, teachers, persons, and corporations engaged in any kind of "heads of establishments." Basis of liability: culpa in vigilando. If industry for felonies committed by their servants, pupils, workmen, there is control or supervision, there is liability. If there is no apprentices, or employees in the discharge of their duties. authority, then there could be no responsibility.

Duty of vigilance of teacher in academic and nonacademic school is the same. The Court cannot see why different degrees of vigilance should be exercised by the school authorities on the basis only of the nature of their respective schools. There does not seem to be any plausible reason for relaxing that vigilance simply because the school is academic in nature and for increasing such vigilance where the school is nonacademic. As to duration of responsibility: Is such responsibility co-extensive with the period when the student is actually undergoing studies during the school term? NO Rule: As long as it can be shown that the student is in l the school premises in pursuance of a legitimate student objective, in the exercise of a legitimate student right, and even in the enjoyment of a legitimate student privilege, the responsibility of the school authorities over the student continues. Palisoc: signifies that the student should be within the l control and under the influence of the school authorities at the time of the occurrence of the injury. Court: the student is in the custody of the school authorities as long as he is under the control and influence of the school and within its premises, whether the semester has not yet begun or has already ended. o Not necessary that the teacher-in-charge be physically present in order to be exercising control. As to extent of liability of teacher: It should be observed that the teacher will be held l liable not only when he is acting in loco parentis, for the law does not require that the offending student be of minority age. Unlike the parent, who will be liable only if his child is still a minor, the teacher is held answerable by the law for the act of the student under him regardless of the student's age. Salvosa v. IAC 166 SCRA 274 Definition of custody: (see also Palisoc) protective and supervisory custody that the school and its heads and teachers exercise over the pupils and students for as long as they are at attendance in the school, even during recess. The mere fact of being enrolled or being in the premises of a school without more does not constitute "attending school" or being in the "protective and supervisory custody' of the school, as contemplated in the law. Upon the foregoing considerations, we hold that l Jimmy B. Abon cannot be considered to have been "at attendance in the school," or in the custody of BCF, when he shot Napoleon Castro. No liability attaches to the school or any of its representatives or employees St. Marys Academy v. Carpitanos 376 SCRA 473 --> in loco parentis Issue: Whether SMA can be held solidarily liable for Daniel's tort Held: True, SMA exercised substitute parental authority. And under the FC (A219), those exercising substitute parental authority are primarily and solidarily liable for damages the minor may commit while under their custody. But before this provision can come into operation, it must be shown that the negligent act complained of (either of the minor or of the school) is the proximate cause of the injury. In loco parentis: Under Article 218 of the Family l Code, the following shall have special parental authority over a minor child while under their supervision, instruction or custody: (1) the school, its administrators and teachers; or (2) the individual, entity or institution engaged in child care. This special parental authority and responsibility applies to all authorized activities, whether inside or outside the premises of the school, entity or institution. Legal consequence: Under Article 219 of the Family l Code, if the person under custody is a minor, those exercising special parental authority are principally and solidarily liable for damages caused by the acts or omissions of the minor while under their supervision, instruction, or custody. Caveat: However, for petitioner to be liable, there must l be a finding that the act or omission considered as negligent was the proximate cause of the injury caused because the negligence must have a causal connection to the accident. In this case, the respondents failed to show that the l

negligence of petitioner was the proximate cause of the death of the victim. The cause of the accident was not the recklessness of James Daniel II but the mechanical defect in the jeep of Vivencio Villanueva. Disposition: SMA absolved. Villanueva held liable Aquinas School v. Inton G.R. No. 184202. January 26, 2011 Issue: The sole issue presented in this case is whether or not the CA was correct in holding Aquinas solidarily liable with Yamyamin for the damages awarded to Jose Luis. Held: Court used the fourfold test in determining employer-employee relationship between Aquinas and Yamyamin, and found there was none. Court also said that school has duty to ensure that those qualified are the ones who teach, but it found that Aquinas discharged this duty. 3. Owners/Managers of Establishments/Employers

Art. 2180. 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. . The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions. 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 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. (1903a) NB: - P5 applies to all employers, even if not engaged in any business or industry. Compare with the case of Alarcon v. Alarcon - "employer" for the purpose of Workmen's Compensation Act, must be engaged in an industry or business. Difference is that, in Alarcon, a different Civil Code provision is involved, Art. 11711. Compare with Castilex l Always based on pater familias, not respondeat l superior, despite Corona in PSI v. Agana Always remember that the EE's negligence has to l be the proximate cause, and the EE is acting within his assigned tasks, or in the service of the branches in which the latter are employed Diligence of ER: both in the selection and l supervision Cangco v. Manila Railroad supra Facts: Jose Cangco, employee of Manila Railroad, disembarked from a moving train and stepped on a sack of watermelons negligently left behind by MR's employees. He fell from the platform and his right arm was crushed and amputated as a result. Held: Court decided the case on the basis of culpa contractual, not culpa aquiliana. But as to employer's liability for negligence of its employees, the Court has this to say: It can not be doubted that the employees of the l railroad company were guilty of negligence in piling these sacks on the platform in the manner above stated; that their presence caused the plaintiff to fall as he alighted from the train; and that they therefore constituted an effective legal cause of the injuries sustained by the plaintiff. That is to say, Court said that PC is negligence of Ees To determine ER liability, distinguish between culpa l aquiliana and culpa contractual, because ER liability has differing basis for the two actions: Respondeat superior v. bonus paterfamilias: l o Common law "respondeat superior" - strict liability on the basis of master-servant relationship (ER liable in every case and unconditionally) o Bonus paterfamilias - Civil law. Responsibility of ER is primary and direct, based on his own negligence in not observing the requisite standard of diligence in the supervision or selection of his employees. Hence, it is subject to the defense found in last

paragraph of Art.2180. Basis of liability only in culpa aquiliana. If action is based on culpa contractual, liability of ER is based on respondeat superior In other words, for culpa aquiliana, the negligence of the ER is only a rebuttable presumption created by law, on the basis of "bonus paterfamilias" concept For culpa contractual, the negligence of the EE is conclusive as to ER; a strict liability on the basis of "respondeat superior" "Under article 1903 of the Civil Code (now 2180), the law creates a presumption that he has been negligent in the selection or direction of his servant, but the presumption is rebuttable and yields to proof of due care and diligence in this respect... These articles are applicable to cases of extra-contractual culpa exclusively " This theory bases the responsibility of the master l ultimately on his own negligence and not on that of his servant. This is the notable peculiarity of the Spanish law of negligence. It is, of course, in striking contrast to the American doctrine that, in relations with strangers, the negligence of the servant is conclusively the negligence of the master. The liability created by article 1903 is imposed by l reason of the breach of the duties inherent in the special relations of authority or superiority existing between the person called upon to repair the damage and the one who, by his act or omission, was the cause of it. On the other hand, the liability of masters and employers for the negligent acts or omissions of their servants or agents, when such acts or omissions cause damages which amount to the breach of a contract, is not based upon a mere presumption of the master's negligence in their selection or control, and proof of exercise of the utmost diligence and care in this regard does not relieve the master of his liability for the breach of his contract. NB: It must be noted that Cangco originally based his claim on culpa aquiliana, that is, the negligence of employees in placing the sacks of melons upon the platform. Also, it is strange because the Court, upon declaring l that PC is negligence of EEs, went on to discuss the basis of primary liability of ER vis a vis alleged contributory negligence of Cangco, and then anchored ER's liability on culpa contractual. Strange Phil Rabbit v. Phil American 63 SCRA 231 -> the word "managers" refers to employers Facts: Pineda drove recklessly a freight truck, owned by Phil-American Forwarders, Inc., along the national highway at Sto. Tomas, Pampanga. The truck bumped the bus driven by Pangalangan, which was owned by Philippine Rabbit Bus Lines, Inc. As a result of the bumping, Pangalangan suffered injuries and the bus was damaged and could not be used for seventy-nine days, thus depriving the company of earnings amounting to P8,665.51. Balingit was the manager of Phil-American Forwarders, Inc and is being sued on this capacity. Issue: Whether the terms "employers" and "owners and managers of an establishment or enterprise" used in article 2180 of the Civil Code, embrace a managerial employee of the corporation who owns the truck. Held: NO. We are of the opinion that those terms do not include the manager of a corporation. It may be gathered from the context of article 2180 that the term "manager" ("director" in the Spanish version) is used in the sense of "employer". Hence, no tortious or quasi-delictual liability can be fastened on Balingit as manager of Phil-American Forwarders, Inc., because he himself may be regarded as an employee or dependiente of his employer, Phil-American Forwarders, Inc. Lampesa v. De Vera G.R. No. 155111. February 14, 2008 --> Due diligence extends not only to hiring/selection, but also to supervision Facts: Dr. De Vera is passanger in jeepney driven by Modesto Tollas. Jeep stopped to allow truck driven by Dario Copsiyat and owned by Cornelio Lampesa to park at a private parking lot on the right side of the road. As Tollas began to maneuver the jeepney slowly along its path, the truck, which had just left the pavement, suddenly started to slide back towards the jeepney until its rear left portion hit the right side of the jeepney. De Vera, Jr., who was seated in the front passenger seat, noticed his left middle finger was cut off as he was holding on to the handle of the right side of the jeepney. Lampesa argues he is diligent because before he

employed Copsiyat, he asked for a copy of his professional license. Issue: Whether Lampesa exercised due diligence in the supervision and selection of Copsiyat so as to exonerate him from liability. Held: NO. driver, Lampesa should not have been satisfied by the mere possession of a professional drivers license by Copsiyat. As an employer, Lampesa was duty bound to do more. He should have carefully examined Copsiyats qualifications, experiences and record of service, if any. Lampesa must also show that he exercised due supervision over Copsiyat after his selection. But all he had shown on record were bare allegations unsubstantiated by evidence. Having failed to exercise the due diligence required of him as employer, Lampesa cannot avoid solidary liability for the tortuous act committed by his driver, Copsiyat. Spouses Jayme v. Apostol G.R. No. 163609. November 27, 2008 Facts: Mayor Miguel of Koronadal was going to the airport. He was on board an Isuzu pick-up truck driven by Fidel Lozano, borrowed by the latter from Ernesto Simbulan, who in turn borrowed it from the registered owner Rodrigo Apostol. Lozano was driving fast, when they hit Marvin Jayme, a minor who was crossing the street. Marvin was sent flying some 50 meters away from the point of impact, was airlifted to Davao but expired after 6 days. His parents seek to recover from Mayor Miguel, Lozano, Simbulan, Apostol, the Municipality of Koronadal, and First Integrated Bonding and Insurance Company. Issue: MAY a municipal mayor be held solidarily liable for the negligent acts of the driver assigned to him, which resulted in the death of a minor pedestrian Court: NO. Mayor is not the employer of Lozano, even if he was the latter's superior and even granting that he exercised control over the latter while being a passenger in the vehicle. The employer is Municipality of Koronadal. Unfortunately for the spouses Jayme, they cannot recover from Koronadal because it is a subdivision of the State performing a governmental function, and as such, is immune from suit. ER-EE relationship: No ER-EE relationship existed l between Mayor Miguel and Lozano in this case. The employeremployee relationship cannot be assumed. It is incumbent upon the plaintiff to prove the relationship by preponderant evidence. The defendant ER is under no obligation to prove a negative averment, it is enough for him to deny an alleged employment relationship. o Applying the four fold test of existence of EE-ER relationship, that it was the Municipality of Koronadal which was the lawful employer of Lozano at the time of the accident. Koronadal continued to be the employer even if the EE was loaned to another person or entity, because the control over the EE subsists. o Even assuming arguendo that Mayor Miguel had authority to give instructions or directions to Lozano, he still can not be held liable. In Benson v. Sorrell, the New England Supreme Court ruled that mere giving of directions to the driver does not establish that the passenger has control over the vehicle. Neither does it render one the employer of the driver. o Negligence of a subordinate employee or subagent is not to be imputed to a superior employee or agent, but only to the master or principal. Significantly, no negligence may be imputed against a fellow employee although the person may have the right to control the manner of the vehicle's operation. In the absence of an employer-employee relationship establishing vicarious liability, the driver's negligence should not be attributed to a fellow employee who only happens to be an occupant of the vehicle Liability of registered owner of vehicle: Settled rule that l it is the registered owner of a vehicle who is jointly and severally liable with the driver for damages incurred by passengers or third persons as a consequence of injuries or death sustained in the operation of the vehicle. Cannot recover from FIBIC also, because the liability l of FIBIC is to the owner of the vehicle. The latter not having filed a claim, it is not liable to pay any amount for the accident. In the end, the only ones held liable was Lozano, the l driver, and Apostol, the registered owner of the truck. NB: But under Art. 2184, the owner of the vehicle, to be liable, must be riding in the car, and in a position to prevent the accident! Sir: There is no proof of a governmental function being carried out at that time. It is incumbent upon the LGU to prove that it is not acting in a proprietary capacity. Also, the ruling created a vacuum; the law abhors a

vacuum, if there is injury there should be a remedy

But in this case, Abad was not acting within the scope of his assigned tasks. He was, based on the Castilex v. Vasquez 321 SCRA 393 --> Scope of assigned tasks circumstances of the case, on a personal errand and Facts: Romeo Vasquez is riding a motorcycle. Benjamin Abad, who has enjoying his personal time. just come from Goldie's restaurant, counterflowed the flow of traffic in Sir: Interpretation in Castilex virtually made par 4 useless. Contrary to Osmena Rotunda in order to make a shortcut. His car collided with Romeo statutory construction, Paragraph 4 applies to employers who are engaged Vasquez' motorcycle, causing severe injuries which led to his death. in enterprises. Paragraph 5, the controlling factor is the scope of the Romeo Vasquez was not wearing goggles and helmet, and was only assigned tasks. carrying a student permit. Abad's car was registered under the name of Compare with Afable: it would seem that l Castilex. Castilex was held jointly and severally liable Madlangbayan was travelling in that case for the benefit of his ER, CA: Castilex' liability only vicarious and not solidary l even if it was not his working day. Sir: it seems to be consistent, Issue: Whether Art. 2180 (5) applies. Assuming it does, whether Abad was because the rule is that when you are travelling home, it is already acting within the scope of his duties when the accident took place. out of the scope of your duty. Held: Castilex not liable. The mere fact that ABAD was using a service vehicle at the time of the injurious incident is not of itself sufficient to Filamer v. IAC 212 SCRA 637 charge petitioner with liability for the negligent operation of said vehicle Facts: MR on the allegation that Funtecha is not an employee of Filamer unless it appears that he was operating the vehicle within the course or Held: It is undisputed that Funtecha was a working student, being a partscope of his employment. time janitor and a scholar of petitioner Filamer. He was, in relation to the Difference between P(4) and (5) of 2180: A distinction l school, an employee even if he was assigned to clean the school premises must be made between the two provisions to determine what is for only two (2) hours in the morning of each school day. applicable. Both provisions apply to employers: the fourth Substantive CC provisions apply over the IRR of Labor l paragraph, to owners and managers of an establishment or Code: the case is a civil suit for damages arising from a quasienterprise; and the fifth paragraph, to employers in general, delict, not a labor case. whether or not engaged in any business or industry. The fourth Funtecha's act of taking over the wheel is for the l paragraph covers negligent acts of employees committed either in benefit of the ER, because (the court conjectured), he was learning the service of the branches or on the occasion of their functions, how to drive for the operation of the jeep of the school. The act of while the fifth paragraph encompasses negligent acts of employees Funtecha in taking over the steering wheel was one done for and in acting within the scope of their assigned task. The latter is an behalf of his employer for which act the petitioner-school cannot expansion of the former in both employer coverage and acts deny any responsibility by arguing that it was done beyond the included. Negligent acts of employees, whether or not the employer scope of his janitorial duties. is engaged in a business or industry, are covered so long as they The clause "within the scope of their assigned l were acting within the scope of their assigned task, tasks" for purposes of raising the presumption of liability of Under the fifth paragraph of Article 2180, whether or l an employer, includes any act done by an employee, in not engaged in any business or industry, an employer is liable for furtherance of the interests of the employer or for the account the torts committed by employees within the scope of his assigned of the employer at the time of the infliction of the injury or tasks. But it is necessary to establish the employer-employee damage. relationship; once this is done, the plaintiff must show, to hold the NB: What would become of the phrase "within the scope of his assigned employer liable, that the employee was acting within the scope of tasks" then? This seems to be the rule interpreting that phrase, which is his assigned task when the tort complained of was committed. It is quite broad. It includes anything the EE does for the good of the ER only then that the employer may find it necessary to interpose the This is only acceptable in the particular facts of l defense of due diligence in the selection and supervision of the Filamer. In one sense, it is a ratification, because the ER has employee. knowledge of his trying to learn how to drive. On whom burden of proving that EE acted within the l As to applicability of LC: the only applicable labor l scope of his duties: The burden lies on the plaintiff. It was not doctrine would be the four fold test. But see NPC v. CA, where incumbent upon the defendant to prove that EE was not acting independent/ labor only contractor distinction, and effects, is within the scope of his duties. It was enough for petitioner applied CASTILEX to deny the allegation; petitioner was not under obligation to prove this negative averment. NPC v. CA 294 SCRA 209 --> Principal ER liable for the torts committed Liability of Castilex: l by a contractual worker o Filamer: acts done within the scope of the Issue: Who, as between NPC and PHESCO, is the employer of Ilumba, employee's assigned tasks includes "any act done by an driver of the dumptruck, who should, therefore, would be liable for employee in furtherance of the interests of the employer or damages to the victims. for the account of the employer at the time of the infliction Held: The principal employer in a labor-only contracting is the employer of of the injury or damages." --> the latter's employees. NPC being the employer, its liability is direct, primary and solidary with PHESCO and the driver. NPC shall have o test of benefit to the ER: recourse against PHESCO and the driver. Going to and from work: An is primarily and solidarily liable with the negligent employee. employee who uses his employer's vehicle in going But: NPC maintains that even assuming that a "labor only" contract exists from his work to a place where he intends to eat or between it and PHESCO, its liability will not extend to third persons who in returning to work from a meal is not ordinarily are injured due to the tortious acts of the employee of the "labor-only" acting within the scope of his employment in the contractor. Stated otherwise, its liability shall only be limited to absence of evidence of some special business violations of the Labor Code and not quasi-delicts. (i.e. 2180 is not a benefit to the employer. benefit under the Labor Code) Going to and from work: Because, under the Labor Code, the statutory l Generally, traveling to and from the place of work is provision refers only to liability of principal ER for violations of ordinarily a personal problem or concern of the Labor Code employee, and not a part of his services to his employer. The employer may, however, be liable Court: It bears stressing that the action was premised l where he derives some special benefit from having on the recovery of damages as a result of quasi-delict against both the employee drive home in the employer's vehicle. NPC and PHESCO, hence, it is the Civil Code and not the Labor Use of vehicle outside regular Code which is the applicable law in resolving this case. Filamer working hours: An employer who loans his motor applicable vehicle to an employee for the latter's personal use Under the civil law an employer is only liable for the l outside of regular working hours is generally not negligence of his employees in the discharge of their respective liable for the employee's negligent operation of the duties. The defense of independent contractor would be a valid one vehicle. in the Philippines just as it would be in the United States. However,

it must be a valid independent contracting arrangement to constitute a defense. Valenzuela v. CA 253 SCRA 303 Here Li's ER Alexander Commercial was held solidarily liable. Compare with Castilex - if you are on your way home, you are no longer acting beyond the scope of your assigned tasks: Before an employer may be held liable for the l negligence of his employee, the act or omission which caused damage must have occurred while an employee was in the actual performance of his assigned tasks or duties. In defining an employer's liability for the acts done within the scope of the employee's assigned tasks, the Supreme Court has held that this includes any act done by an employee, in furtherance of the interests of the employer or for the account of the employer at the time of the infliction of the injury or damage Unlimited use of the company car inures to the benefit l of the ER: goodwill of the business, beneficial to performance of work, etc. Sir: does not really contradict Castilex, because even Castilex provides for a special benefit exemption. Has to look at all the circumstances surrounding the nature of the work of the EE, to determine if the act involved is within the scope of his assigned tasks and therefore one for which the employer has to be liable. Professional Services v. Agana, G.R. No. 126297. January 31, 2007, G.R. No. 126297. February 11, 2008 G.R. No. 126297. February 2, 2010 Issue: Whether the hospital is solidarily liable for the negligence of a consultant doctor working in its premises. Held (1): 1st PSI case: PSI solidarily liable for following reasons: first, there is an employer-employee relationship between Medical City and Dr. Ampil. Ramos v. CA doctrine: for the purpose of apportioning responsibility in medical negligence cases, an employer-employee relationship in effect exists between hospitals and their attending and visiting physicians; second, PSIs act of publicly displaying in the lobby of the Medical City the names and specializations of its accredited physicians, including Dr. Ampil, estopped it from denying the existence of an employer-employee relationship between them under the doctrine of ostensible agency or agency by estoppel; and third, PSIs failure to supervise Dr. Ampil and its resident physicians and nurses and to take an active step in order to remedy their negligence rendered it directly liable under the doctrine of corporate negligence. 2nd PSI: PSI filed an MR because of a Resolution overturning liability of DSMC in Ramos v. CA Court: Ramos doctrine still good law. DSMC was absolved from liability because it was able to prove that it really did not exercise supervision Doctrine of ostensible agency: Cited Nograles et al. l v. CMC: In general, a hospital is not liable for the negligence of an independent contractor-physician. There is, however, an exception to this principle. The hospital may be liable if the physician is the "ostensible" agent of the hospital. This exception is also known as the "doctrine of apparent authority." (Sometimes referred to as the apparent or ostensible agency theory. The doctrine of apparent authority essentially involves two factors to determine the liability of an independent contractor-physician: o The first factor focuses on the hospitals manifestations and is sometimes described as an inquiry whether the hospital acted in a manner which would lead a reasonable person to conclude that the individual who was alleged to be negligent was an employee or agent of the hospital. In this regard, the hospital need not make express representations to the patient that the treating physician is an employee of the hospital; rather a representation may be general and implied. o The second factor focuses on the patients reliance. It is sometimes characterized as an inquiry on whether the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence. It must be stressed that under the doctrine of apparent l authority, the question in every case is whether the principal has by his voluntary act placed the agent in such a situation that a person of ordinary prudence, conversant with business usages and the nature of the particular business, is justified in presuming that such agent has authority to perform the particular act in question. Doctrine of corporate responsibility. The duty of l

providing quality medical service is no longer the sole prerogative and responsibility of the physician. This is because the modern hospital now tends to organize a highly-professional medical staff whose competence and performance need also to be monitored by the hospital commensurate with its inherent responsibility to provide quality medical care.8 Such responsibility includes the proper supervision of the members of its medical staff. Accordingly, the hospital has the duty to make a reasonable effort to monitor and oversee the treatment prescribed and administered by the physicians practicing in its premises. Because PSI failed to live up to its corporate l responsibility, PSI is not only vicariously liable for the negligence of Dr. Ampil under Article 2180 of the Civil Code, but also directly liable for its own negligence under Article 2176. 3rd PSI - PSI assails the finding on all three points: no EE-ER relationship found during trial; no ostensible agency because Aganas failed to prove reliance; not liable under doctrine of corporate responsibility because it is Dr. Ampil's negligence, not theirs, that is the PC. Court: PSI is liable to the Aganas, not under the principle of respondeat superior (erroneous) for lack of evidence of an employment relationship with Dr. Ampil but under the principle of ostensible agency for the negligence of Dr. Ampil and, pro hac vice, under the principle of corporate negligence for its failure to perform its duties as a hospital. Hospital liability in medical negligence cases: l Where an employment relationship exists, the hospital may be held vicariously liable under Article 2176 in relation to Article 2180 of the Civil Code or the principle of respondeat superior (erroneous - should be pater familias). Even when no employment relationship exists but it is shown that the hospital holds out to the patient that the doctor is its agent, the hospital may still be vicariously liable under Article 2176 in relation to Article 1431 and Article 1869 of the Civil Code or the principle of apparent authority. Moreover, regardless of its relationship with the doctor, the hospital may be held directly liable to the patient for its own negligence or failure to follow established standard of conduct to which it should conform as a corporation. Used "control test" to determine EE-ER relationship. l Here, no control over means and manner of accomplishing task, no EE-ER rel o "The Court holds that, in this particular instance, the concurrent finding of the RTC and the CA that PSI was not the employer of Dr. Ampil is correct. Control as a determinative factor in testing the employeremployee relationship between doctor and hospital under which the hospital could be held vicariously liable to a patient in medical negligence cases is a requisite fact to be established by preponderance of evidence. Here, there was insufficient evidence that PSI exercised the power of control or wielded such power over the means and the details of the specific process by which Dr. Ampil applied his skills in the treatment of Natividad. Consequently, PSI cannot be held vicariously liable for the negligence of Dr. Ampil under the principle of respondeat superior (erroneous) But PSI is still liable under principle of apparent l authority because the two factors are met. Also liable for corporate negligence because it failed to l live up to its own standard of conduct it defined for itself. Hence, the failure of PSI to fulfill its duties as a hospital corporation gave rise to a direct liability to the Aganas distinct from that of Dr. Ampil. All this notwithstanding, we make it clear that PSIs hospital liability based on ostensible agency and corporate negligence applies only to this case, pro hac vice. It is not intended to set a precedent and should not serve as a basis to hold hospitals liable for every form of negligence of their doctorsconsultants under any and all circumstances. Mercury Drug v. Huang 525 SCRA 427 Court: We affirm the findings of the trial court and the appellate court that petitioner Del Rosario was negligent. MD as employer is directly liable for D's negligence under A2180. The liability of the employer under Art. 2180 of the Civil Code is direct or immediate. It is not conditioned on a prior recourse against the negligent employee, or a prior showing of insolvency of such employee. It is also joint and solidary with the employee. To be relieved of liability, petitioner Mercury Drug should show that it exercised the diligence of a good father of a family, both in the selection of the employee and in the supervision of the performance of his duties. Thus, in the selection of its prospective employees, the employer is

required to examine them as to their qualifications, experience, and service records. With respect to the supervision of its employees, the employer should formulate standard operating procedures, monitor their implementation, and impose disciplinary measures for their breach. Actual driving test was only on a Galant light vehicle, l and for the position of delivery man, not truck man. No showing of NBI, police clearance, no further test on motor skills, depth perception, visual acuity, etc. D attended only three driving seminars, the last one on l 1984 or more than 12 years ago when the accident happened in 1996 No back-up driver for long trips. D was on the road for l 13 hours already when the accident happened No action on TVR of D l

foresight humanly possible on its part in order that each branch of service serves the general weal an that of private persons interested in its operation. o The fault or negligence which is the original basis of this kind of objections, must be presumed to lie with the state only when it acts through the agency of a special agent. The responsibility of the state is limited to that which it contracts through a special agent, duly empowered by a definite order or commission to perform some act or charged with some definite purpose which gives rise to the claim. o A special agent, in the sense in which these words are employed, is one who receives a definite and fixed order or commission, foreign to the exercise of the duties of his office if he is a special official so that 4. State in representation of the state and being bound to act as an agent thereof, he executes the trust confided to him. Article 2180. The obligation imposed by Article 2176 is demandable not o This concept does not apply to any only for one's own acts or omissions, but also for those of persons for executive agent who is an employee of the acting whom one is responsible. administration and who on his own responsibility performs . the functions which are inherent in and naturally pertain to The State is responsible in like manner when it acts through a his office and which are regulated by law and the special agent; but not when the damage has been caused by the regulations. The state is not liable where the claim is official to whom the task done properly pertains, in which case what based on acts or omissions imputable to a public official is provided in Article 2176 shall be applicable. charged with some administrative or technical office who . can be held to the proper responsibility in the manner laid The responsibility treated of in this article shall cease when the down by the law of civil responsibility (A2176) persons herein mentioned prove that they observed all the diligence of a NB: Note that the State, as a juridical entity, is liable for the damage it good father of a family to prevent damage. (1903a) causes as such, but not when the damage results from an act of an official exercising his powers. For example, the GSIS can be liable when for Rule: example, through failure to maintain its building a metal gutter is detached GR: gov't not liable for damages arising out of exercise from the roof and falls into a passing car. But it will not be liable if the l factual circumstance is such that, A, who is say an maintenance officer of of its governmental functions (Merritt) GSIS, instructs his subordinate to remove certain parts of the gutter, and E: To be liable under A2180, it must be shown that the l through his or his subordinate's negligence, it falls into a passing car. In State was acting thru a special agent (Rosete) this case, A will be primarily liable under A2176. BUT: If gov't is acting thru an agent performing nonl Rosete v. Auditor General 81 Phil 453 - Gov't liable under A2180 only if it governmental functions, its liability is that of an ordinary employer acts thru a special agent (Fontanilla). Issue: Whether government should be liable to the plaintiffs for the AS FOR: Municipality, on the other hand, is not liable l damages caused by a fire which started from ECA's bodega. Court: Cited Merritt v. Government. There being no showing that for damages when acting in its governmental capacity, but liable whatever negligence may be imputed to the Emergency Control when acting in its proprietary capacity (Mendoza) Administration or its officers, was done by an special agent, because the officers of the Emergency Control Administration did not act as special Merritt v. Government 34 Phil 311 agents of the government within the above defined meaning of that word in Issues: article 1903 of the Civil Code in storing gasoline in warehouse of the ECA, 1. Whether the State, by virtue of Act 2457, admits its the government is not responsible for the damages caused through such liability to the plaintiff. negligence. 2. Whether the plaintiff can recover damages from the State under A2180. Mendoza v. De Leon 33 Phil 508 Held: NO. By consenting to be sued a state simply waives its Distinction between two types of government powers possessed by a 1. municipality: governmental and proprietary. immunity from suit. It does not thereby concede its liability to A municipality is not exempt from liability for the negligent performance of plaintiff, or create any cause of action in his favor, or extend its its corporate or proprietary or business functions. In liability to any cause not previously recognized. (Melvin v. State). the administration of its patrimonial property, it is to be regarded as a o General rule: No claim arises against any private corporation or individual so far as its liability to third persons on government is favor of an individual, by reason of the contract or in tort is concerned. Its contracts, validly entered into, may be misfeasance, laches, or unauthorized exercise of powers enforced and damages may be collected from it for the torts of its officers by its officers or agents. The state is not liable for the torts or agents within the scope of their employment in precisely the same committed by its officers or agents whom it employs, except manner and to the same extent as those of private corporations or when expressly made so by legislative enactment (in other individuals. words, when it waives its immunity from suit). o E: The state can be made liable for injuries Fontanilla v. Maliaman 194 SCRA 486 arising from the negligence of its agents or servants, only The liability of the State has two aspects, namely: by force of some positive statute assuming such liability. 1. Its public or governmental aspects where it is liable for the tortious acts NO. The basis of liability under A2180 is the own fault of special agents only. 2. 2. Its private or business aspects (as when it engages in private or negligence of the person in failing to prevent the damage, enterprises) where it becomes liable as an ordinary employer. (p. 961, Civil which the law presumes it capable of by virtue of the special Code of the Philippines; Annotated, Paras; 1986 Ed. ). relationship between the parties (e.g. parent-child, ER-EE). It The State assumes a limited liability for the damage follows, therefore, that the state, by virtue of such provision, is caused by the tortious acts or conduct of its special agent. A2180 not responsible for the damages suffered by private individuals in (6), the State has voluntarily assumed liability for acts done through consequence of acts performed by its employees in the discharge special agents. The State's agent, if a public official, must not only of the functions pertaining to their office, because neither fault be specially commissioned to do a particular task but that such task nor even negligence can be presumed on the part of the state must be foreign to said official's usual governmental functions in the organization of branches of public service and in the [Even] [w]here the government commissions a private individual for appointment of its agents. On the contrary, we must presuppose all

a special governmental task, it is acting through a special agent within the meaning of the provision. (Torts and Damages, Sangco, p. 347, 1984 Ed.) If the State's agent is not a public official, and is commissioned to perform non-governmental functions, then the State assumes the role of an ordinary employer and will be held liable as such for its agent's tort. Here, since NIA is a corporate body performing non governmental (i.e. proprietary) functions, it now becomes liable for the damage caused by the accident resulting from the tortious act of its driver-employee. In this particular case, the NIA assumes the responsibility of an ordinary employer and as such, it becomes answerable for damages.

Independent Civil Actions Thursday, August 18, 2011 7:25 AM B. Defamation, Fraud, Physical Injuries

choice, between an action to enforce the civil liability arising from crime under Article 100 of the Revised Penal Code and an action for quasi-delict under Articles 2176-2194 of the Civil Code. If he chooses an action for quasi-delict, he may hold an employer liable for the negligent act of the employee subject, however, to the employer's defense of exercise of the diligence of a good father of the family. (Art. 2180, Civil Code) On the other hand, should he choose to prosecute his action under Article 100 of the Penal Code, he can hold the employer subsidiarily liable only upon prior conviction of the employee. While a separate and independent civil action for damages may be brought against the employee under Article 33 of the Civil Code, no such action may be filed against the employer on the latter's subsidiary civil liability because such liability is governed not by the Civil Code but by the Penal Code... If the court trying the employee's liability adjudges the employee liable, but the court trying the criminal action acquits the employee, the subsequent insolvency of the employee cannot make the employer subsidiary liable to the offended party or to the latter's heirs.

Madeja v. Caro 211 Phil 469 Section 2, Rule 111 of the Rules of Court in relation to Article 33 of the Civil Code is the applicable provision: Sec, 2. Independent civil action. - an independent 3. Article 33. In cases of defamation, fraud, and physical injuries a civil action for damages, entirely separate and distinct from the criminal action, civil action entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed may be brought by the injured party during the pendency of the independently of the criminal prosecution, and shall require only a criminal case, provided the right is reserved as required in the preponderance of evidence. preceding section. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of Rule 111, Sec.1 (a) - When a criminal action is instituted, the civil action for evidence. the recovery of civil liability arising from the offense charged shall be Art. 33. In cases of defamation, fraud, and physical injuries, a deemed instituted with the criminal action unless the offended party waives civil action for damages, entirely separate and distinct from the the civil action, reserves the right to institute it separately or institutes the criminal action, may be brought by the injured party. Such civil civil action prior to the criminal action. action shall proceed independently of the criminal prosecution, and The reservation of the right to institute separately the civil action shall require only a preponderance of evidence." shall be made before the prosecution starts presenting its evidence and But see Sangco: A33 must be construed as an exception to the under circumstances affording the offended party a reasonable opportunity general rule in R111. These independent civil actions should not be to make such reservation. deemed instituted with the criminal action and the right to institute . them should not be made subject to their prior reservation. (b) The criminal action for violation of Batas Pambansa Blg. 22 shall o See also Heirs of Simon be deemed to include the corresponding civil action. No reservation to file A33: There are at least two things about Art. 33 of the Civil Code which are such civil action separately shall be allowed. worth noting, namely: 1. The civil action for damages which it allows to be instituted is exSec. 3. When civil action may proceed independently. In the cases delicto. This is manifest from the provision which uses the expressions provided in Articles 32, 33, 34 and 2176 of the Civil Code of the "criminal action" and "criminal prosecution." Tolentino says: "While the Philippines, the independent civil action may be brought by the offended party. It shall proceed independently of the criminal action and shall require State is the complainant in the criminal case, the injured individual is the only a preponderance of evidence. In no case, however, may the offended one most concerned because it is he who has suffered directly. He should be permitted to demand reparation for the wrong which peculiarly affects party recover damages twice for the same act or omission charged in the him." criminal action. 2. The term "physical injuries" is used in a generic sense. It is not the crime of physical injuries defined in the Revised Penal Code. It includes not only Q: What is the basis of liability for A33? Is it quasi-delict? Delict? Law? physical injuries but consummated, frustrated and attempted homicide. Prosser and Keeton, pp. 771-785 Arafiles v. Phil Journalists 426 SCRA 336 Facts: defamation case against writer, editor, publisher of People's Journal Joaquin v. Aniceto G.R. No. L-18719. October 31, 1964 Tonight Issue: May an EE's primary civil liability for crime and his ER's subsidiary liability therefor be proved in a separate civil action while the criminal case Court: Article 33 contemplates a civil action for the recovery of damages that is entirely unrelated to the purely criminal aspect of the case. A civil is still pending? action for libel under this article shall be instituted and prosecuted to final Held: NO. A1161, NCC: Civil liability arising from crime is governed by judgment and proved by preponderance penal laws (RPC A100), subject to the provisions of A2177(separate civil liability ex delicto from civil liability ex culpa aquiliana), and of the pertinent of evidence separately from and entirely independent of the institution, pendency or result of the criminal action because it is governed by the provisions of Human Relations chapter of CC. provisions of the New Civil Code and not by the Revised Penal Code Q: Can A33 be used to make an ER subsidiarily liable for civil liability governing the criminal offense charged and the civil liability arising arising from crime committed by EE? Held: NO. ER's subsidiary liability is governed not by CC, but by RPC. For therefrom. XII. To determine whether there was defamation an ER to be subsidiarily liable for civil liability ex delicto of his EE, the committed here, the Court took into consideration the whole of the following must be present: (1) That an employee has committed a crime in article, taking into consideration the scope, spirit and motive of the the discharge of his duties; (2) that said employee is insolvent and has not article taken its entirety. Court ruled that there is no defamation satisfied his civil liability; (3) that the employer is engaged in some kind of here. Although the first seven paragraphs seemed to imply that the industry Without the conviction of the employee, the employer cannot be alleged rape was committed as a fact, the succeeding paragraphs subsidiarily liable. sufficiently convey the idea that the news story was taken from the Applicability of A33: A33 authorizes only an action against the employee narrative of the offended party. on his primary civil liability. It cannot apply to an action against the employer to enforce his subsidiary civil liability as stated above. Gave leeway to press freedom. "The newspapers should be given such leeway and tolerance as to enable them to In cases of negligence, the injured party or his heirs has the

courageously and effectively perform their important role in our democracy. In the preparation of stories, press reporters and [editors] usually have to race with their deadlines; and consistently with good faith and reasonable care, they should not be held to account, to a point of suppression, for honest mistakes or imperfection in the choice of words.

MVRS v. Islamic G.R. No. 135306. January 28, 2003 As to the argument that the filing of the criminal action 5. GR: In order to maintain a libel suit, it is essential that the victim be suspended the tolling of the prescriptive period, the Court said that identifiable. "the institution of a criminal action cannot have the effect of Group libel: Where the defamation is alleged to have been directed at a interrupting the institution of a civil action based on a quasi-delict." group or class, it is essential that the statement must be so sweeping and In other words, it runs both ways since it is an independent civil all embracing as to apply to every individual in that group or class action. Defamation is made up of the twin torts of libel and slander the one being, in general, written, while the other in general is oral. Corpus v. Paje 28 SCRA 1062 In either form, defamation is an invasion of the interest in reputation No separate civil action to recover liability ex delicto allowed and good name. This is a "relational interest" since it involves the here, because the acquittal of Paje carried with it the finding that opinion others in the community may have, or tend to have of the the alleged criminal negligence did not exist, i.e. the event was plaintiff. Offending words by itself does not create a cause of purely an accident. action for defamation. Defamation requires that something be Criminal negligence, that is, reckless imprudence, is not one communicated to a third person that may affect the opinion others of the three crimes mentioned in Article 33 of the Civil Code may have of the plaintiff. which authorizes the institution of an independent civil action, that 5. Requisites: Plaintiff must prove prima facie case that the is, of an entirely separate and distinct civil action for damages. defendant (1) published a statement that was (2) defamatory (3) of Although in the case of Dyogi, et al. vs. Yatco, et al., G.R. No. Land concerning the plaintiff. 9623, January 22, 1957, this Court held that the term "physical The element of identification is essential. Even when a injuries" used in article 33 of the Civil Code includes homicide, it is publication may be clearly defamatory as to somebody, if the words to be borne in mind that the charge against Felardo Paje was for have reckless imprudence resulting in homicide, and not for homicide no personal application to the plaintiff, they are not actionable by and physical injuries. him. In fine, in order for one to maintain an action for an alleged o J.B.L. Reyes: "offense of criminal negligence under defamatory statement, it must appear that the plaintiff is the person article 365 of the Revised Penal Code lies in the execution with reference to whom the statement was made. of an imprudent or negligent act that, if intentionally done, l. Hence in group libel, if the group is a very large one, then the would be punishable as a felony. The law penalizes thus the alleged libelous statement is considered to have no application to negligent or careless act, not the result thereof. The gravity anyone in particular, since one might as well defame all mankind. of the consequence is only taken into account to determine Not only does the group as such have no action; the plaintiff does the penalty; it does not qualify the substance of the not establish any personal reference to himself. offense." o Two (2) important public policies: first, where the group 3. Assuming, arguendo, that the civil action for damages for the referred to is large, the courts presume that no reasonable death of Clemente Marcia was based upon a quasi-delict,the trial reader would take the statements as so literally applying to court's finding that on that basis the action had prescribed is each individual member; and correct. An action upon a quasi-delict must be instituted within four o Second, the limitation on liability would satisfactorily (4) years safeguard freedom of speech and expression, as well as of the press, effecting a sound compromise between the Bonite v. Zosa 162 SCRA 173 conflicting fundamental interests involved in libel cases. Issue: Whether an independent civil action for damages, under Article 29 of the Civil Code, is deemed barred by petitioners' failure in the criminal Heirs of Simon v. Elvin Chan G.R. No. 157547. February 23, 2011. action to make a reservation to file a separate civil action There is no independent civil action to recover the civil liability arising from Held: When the accused in a criminal case is acquitted on the ground that the issuance of an unfunded check prohibited and punished under Batas his guilt has not been proved beyond reasonable doubt, a civil action for Pambansa Bilang 22 damages for the same act or omission may still be instituted against him, and only a preponderance of evidence is required to hold the accused BP 22 cases carry with it the civil liability to make good the liable. The civil liability is not extinguished by acquittal of the damage occasioned by the bouncing check. accused, where the acquittal is based on reasonable doubt. However, there is no independent civil action to recover the A29 is an independent civil action. It does not state that the right value of a bouncing check issued in contravention of BP 22. This is to file an independent civil action for damages can be availed of clear from Rule 111 of the Rules of Court, effective December 1, only in offenses not arising from a tortious act. 2000, which relevantly provides: (b) The criminal action for violation of BP 22 shall be deemed to include the corresponding civil action. Here, Court makes a distinction and says that A33 refers to No reservation to file such civil action separately shall be allowed. intentional acts. Article 33 of the Civil Code assumes a defamation, fraud, or physical injuries intentionally committed. The Hence, the criminal action for violation of Batas Pambansa Blg. death of the deceased in the case at bar was alleged to be the 22 shall be deemed to necessarily include the corresponding civil result of criminal negligence, i.e., not inflicted with malice. As action, and no reservation to file such civil action separately shall reckless imprudence or criminal negligence is not mentioned in be allowed or recognized. Article 33, no independent civil action for damages arising from reckless imprudence or criminal negligence may be instituted under Capuno v. Pepsi Cola 13 SCRA 658 said article. It is, therefore, not applicable to the case at bar. Petitioners here took the proper remedy of instituting an independent civil action based on A33. In filing the civil action as they did appellants As to reservation, A29 does not include any such reservation correctly considered it as entirely independent of the criminal action, which requirement. It allows an action for damages against the accused was then still pending. They also have a COA under A33, for the term upon the latter's acquittal in the criminal case based upon "physical injuries" as used therein includes bodily injuries causing death. reasonable doubt. Moreover, the reservation requirement was (Dyogi v. Yatco, G.R. No. L-9623, Jan. 22, 1957, 22 L.J. 175). In other did away with. It was held to be unconstitutional and accordingly words, the civil action for damages could have been commenced by revised. 2000 Rules on Crimpro no longer needs reservation for appellants immediately after the death of Capuno. However, the plaintiffs independent civil actions under Human Relations chapter of CC. lost their case on the ground of prescription, as more than 5 years has passed since the accident. Jervoso v. People 189 SCRA 523

Prescriptive period here is determined by q-delict. Court considered action under A33 to be quasi-delict NB: The criminal case here is reckless negligence resulting to homicide. Court said that it is still covered by A33, because "physical injuries" there includes bodily injuries resulting to death Cf Corpus v. Paje

Dulay v. CA 243 SCRA 220 C. Neglect of Duty Article 34. When a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property, such peace officer shall be primarily liable for damages, and the city or municipality shall be subsidiarily responsible therefor. The civil action herein recognized shall be independent of any criminal proceedings, and a preponderance of evidence shall suffice to support such action.

countless acts of such character, but have not been foreseen by the lawmakers. Among these are many business practices that are unfair or oppressive, and certain acts of landholders and employers affecting their tenants and employees which contravene the public policy of social justice. NB: Art.19, 21, 23 given retroactive effect because it does not impair any vested right of Shell

Globe Mackay v. CA G.R. No. 81262. August 25, 1989 Refresher: Case for malicious prosecution by Globe/Hendry against Tobias. Tobias was awarded damages and Globe appealed, arguing that it was legitimately exercising its right to terminate the services of its EE Court: Globe liable for damages because of its abusive manner in dismissing Tobias as well as for the inhuman treatment he got from them. Sangco Vol I 334-335 While an ER has a right to dismiss its EE, the right should not be confused with the manner in which it is exercised and the effects flowing therefrom. D. Catch-All Independent Civil Action If the dismissal was done abusively, ER is liable for damages. Basis: Art.19, 20. Article 35. When a person, claiming to be injured by a criminal offense, Art. 19: known as the principle of abuse of rights, sets certain charges another with the same, for which no independent civil action is standards which must beobserved not only in the exercise of one's granted in this Code or any special law, but the justice of the peace finds rights but also in theperformance of one's duties. These standards no reasonable grounds to believe that a crime has been committed, or the are the following: to act with justice; to give everyone his due; and prosecuting attorney refuses or fails to institute criminal proceedings, the to observe honesty and good faith. The law, therefore, recognizes a complaint may bring a civil action for damages against the alleged primordial limitation on all rights; that in their exercise, the norms of offender. Such civil action may be supported by a preponderance of human conduct set forth in Article 19 must be observed. A right, evidence. Upon the defendant's motion, the court may require the plaintiff though by itself legal because recognized or granted by law as to file a bond to indemnify the defendant in case the complaint should be such, may nevertheless become the source of some illegality. found to be malicious. When a right is exercised in a manner which does not conform If during the pendency of the civil action, an information should be with the norms enshrined in Article 19 and results in damage presented by the prosecuting attorney, the civil action shall be suspended to another, a legal wrong is thereby committed for which the until the termination of the criminal proceedings. wrongdoer must be held responsible. But while Article 19 lays down a rule of conduct for the Human Relations Torts government of human relations and for the maintenance of social Wednesday, August 31, 2011 order, it does not provide a remedy for its violation. Generally, an 8:08 AM action for damages under either Article 20 or Article 21 would be proper. VI. Human Relations Torts 6. In determining whether or not the principle of abuse of rights may be invoked, there is no rigid test which can be applied. The Abuse of Rights question of whether or not the principle of abuse of rights has been violated resulting in damages under Article 20 or Article 21 or other Article 19. Every person must, in the exercise of his rights and in the applicable provision of law, depends on the circumstances of each performance of his duties, act with justice, give everyone his due, and case. observe honesty and good faith On malicious prosecution: To constitute malicious prosecution, there Old rule: damnum absque injuria -damage without injury. must be proof that the prosecution was prompted by a design to vex and Damage occasioned to a person due to the exercise of another humiliate a person and that it was initiated deliberately by the defendant person's rights is not an actionable injury. knowing that the charges were false and groundless. Concededly, the filing of a suit by itself, does not render a person liable for malicious Modern tendency: abuse of rights prosecution . The mere dismissal by the fiscal of the Abuse of rights - exercise of a right ends when the right criminal complaint is not a ground for an award of damages for malicious disappears, and the right disappears when it is abused, especially prosecution if there is no competent evidence to show that to the prejudice of others. the complainant had acted in bad faith. Test: There is an abuse or right when it is exercised for Damnum absque injuria: Damage or loss which does not constitute a violation of a legal right or amount to a legal wrong is not actionable the only purpose of prejudicing or injuring another. Absence of good faith is essential to abuse of rights. Albenson v. CA G.R. No. 88694. January 11, 1993 When a person merely uses a right pertaining to him, Refresher: No malicious prosecution here because Albenson was without bad faith or intent to injure, the fact that damages motivated by good faith effort to collect credit due to it, even if it was guilty are thereby suffered by another will not make the former of negligence. liable. This is the real case of damnum absque injuria P's contention: Case in lower court is one for malicious prosecution, and it should be exonerated because there is no showing of malice or bad faith. Velayo v. Shell G.R. No. L-7817. October 31, 1956 Art.19 is a declaration of principles and is implemented by either Art. 20 or R: the case is based on Art.19,20,21 Art.21. Art 20 refers to acts in violation of law, while Art.21 answers for acts Court: The elements of an abuse of right under Article 19 are the following: There is a legal right or duty; contra bonus mores, essentially, acts which, though not unlawful, are contrary to morals, good customs or public policy and makes the actor Which is exercised in bad faith; liable for damages. For the sole intent of prejudicing or injuring another. Purpose of Human Relations torts: Vouchsafe adequate legal remedy Article 20 speaks of the general sanction for all other provisions of law for that untold numbers of moral wrongs which is impossible for human which do not especially provide for their own sanction.Thus, anyone who, foresight to provide for specifically in the statutes.In the last analysis, whether willfully or negligently, in the exercise of his legal right or duty, every good law draws its breath of life from morals, from those principles causes damage to another, shall indemnify his victim for injuries suffered which are written with words of fire in the conscience of man. If this premises is admitted, then the proposed rule is a prudent earnest of justice thereby. Article 21 deals with acts contra bonus mores, and has the following elements: in the face of the impossibility of enumerating, one by one, all wrongs There is an act which is legal; which cause damages... There is no belief of more baneful consequence upon the social order than that a person may with impunity cause damage 2. But which is contrary to morals, good custom, public order, or to his fellow-men so long as he does not break any law of the State, public policy; though he may be defying the most sacred postulates of morality. 3. And it is done with intent to injure. Art.21: The same observations may be made concerning injurious acts NB: For Art. 20, the act may be done either willfully or negligently. But that are contrary to public policy but are not forbidden by statute. There are for Art. 19 and 21, the act must be intentional. But here (Art.21 case),

there was no proof of willful violation. What we have is a sincere attempt Refresher: Barons Marketing is a creditor of Phelps Dodge. Phelps Dodge on the part of petitioners to find the best possible means by which they absolved from "creditor's abuse" complaint of Barons because: could collect the sum of money due them. In the absence of a wrongful To constitute an abuse of rights under A19, there must be act or omission or of fraud or bad faith, moral damages cannot be showing of bad faith or intent to prejudice. The question, awarded and that the adverse result of an action does not per se make therefore, is whether private respondent intended to prejudice or the action wrongful and subject the actor to the payment of damages, injure petitioner when it rejected petitioners offer and filed the for the law could not have meant to impose a penalty on the right to litigate. action for collection. The answer is no. (i.e. bad faith essential to be liable for malicious prosecution) It is an elementary rule in this jurisdiction that good faith is Malicious prosecution: can also be brought under Art. 19 and 21. In order presumed and that the burden of proving bad faith rests upon the that such a case can prosper, however, the party alleging the same. In the case at bar, petitioner has failed to following three (3) elements must be present, to wit: (1) The fact of the prove bad faith on the part of private respondent. Petitioners prosecution and the further fact that the defendant was himself allegation the prosecutor, and that the action was finally terminated with an acquittal; that private respondent was motivated by a desire to terminate its (2) That in bringing the action, the prosecutor acted without agency relationship with petitioner so that private respondent itself probable cause; (3) The prosecutor was actuated or impelled by legal may deal directly with Meralco is at most speculative. malice Legal malice is signified when a suit is carried without Phelps dodge was within its rights to refuse the offer of Barons. probable cause. Conversely, the presence of probable cause signifies, as a legal consequence, the absence of malice. Obligee cannot be compelled to receive partial performance. What we have here is a mere exercise of rights, not an abuse thereof. Amonoy v. Gutierrez G.R. No. 140420. February 15, 2001 Refresher: Case stemmed from the demolition of plaintiff's house as a Diaz v. Davao Light G.R. No. 160959. April 4, 2007 consequence of writ of possession and order of demolition issued by RTC Refresher: Really annoying case of malicious prosecution on both sides. in favor of Atty. Amonoy, who foreclosed the mortgage constituted over the Issues: (1) whether or not the compromise agreement entered into lot in payment for his legal fees. between DLPC and Diaz barred the former from instituting further Court: There is abuse of rights here because A proceeded to enforce his actions involving electric Meter No. 84736 or 86673509; (2) whether or not alleged right under the writ in violation of a TRO. A commenced the DLPC acted in bad faith in instituting the criminal cases against demolition of G's house on May 30, 1986, under authority of a writ, but SC Diaz; and (3) whether or not Diaz is entitled to damages. issued a TRO on June 2, which was served to A on June 4. Despite the Court: NO merit. Compromise agreement does not and cannot affect TRO, A carried the demolition of G's house well until the middle of 1987. criminal liability, because criminal action is an offense against the State. m.Well-settled is the maxim that damage resulting from the As can be inferred from the compromise agreement, Diaz and DLPC legitimate exercise of a persons rights is a loss without injury merely agreed to (1) reduce the latters total claims to only damnum absque injuria -- for which the law gives no remedy. In P385,000.00; (2) for DLPC to waive its counterclaims against Diaz; and (3) other words, one who merely exercises ones rights does no upon receipt of the amount, for DLPC to immediately install actionable injury and cannot be held liable for damages. However, the necessary electric service to the building. The parties likewise agreed it does not apply to this case because there is no legitimate to the dismissal of Sp. Civil Case No. 18,288 for being moot exercise of a right and academic. Nowhere in said agreement did the parties agree that Although the acts of petitioner may have been legally justified at DLPC was barred from instituting any further action involving electric Meter No. 84736 or 86673509. the outset, their continuation after the issuance of the TRO No case of malicious prosecution here. Elements are not amounted to an insidious abuse of his right. Indubitably, his actions were tainted with bad faith. Verily, his acts constituted not only an present. abuse of a right, but an invalid exercise of a right that had been Distinction between damage and injury: There is a material distinction suspended when he received the TRO from this Court on June 4, between damages and injury. Injury is the illegal invasion of a legal 1986. By then, he was no longer entitled to proceed with the right; damage is the loss, hurt or harm which results from the injury; and demolition. damages are the recompense or compensation awarded for the damage suffered. Thus, there can be damage without injury in those UE v. Jader G.R. No. 132344. February 17, 2000 instances in which the loss or harm was not the result of a violation of UE: It should be absolved from the complaint because the proximate and a legal duty. In such cases, the consequences must be borne by the immediate cause of the alleged damages incurred by Jader arose out of injured person alone; the law affords no remedy for damages resulting from his own negligence in not verifying from the professor concerned the result an act which does not amount to a legal injury or wrong. These situations of his removal exam. are often called damnum absque injuria. Court: Contractual relationship between school and student, student is not 4. Here, whatever damages Diaz may have suffered would have to duty bound to deal with school's agents (i.e. professors). It is the be borne by him alone since it was his acts which led to the filing of contractual obligation of the school to timely inform and furnish sufficient the complaints against him. notice and information to each and every student as to whether he or she had already complied with all the requirements for the conferment of a Pantaleon v. American Express, supra degree. Furthermore, UE should have practiced what it inculcates, more Application of A19: Conceding that AMEX has a right to review credit specifically the principle of good dealings enshrined in Articles 19 and 20 history of its cardholders, and that it is under no legal obligation to act on a of the Civil Code. credit request within a specified period, still this right has to be subject to Quotable quote: Schools and professors cannot just take students for the provisions of Art. 19, in conjunction with Art.21. However, it is not liable granted and be indifferent to them, for without the latter, under the said article. It is an elementary rule in our jurisdiction that good the former are useless. faith is presumed and that the burden of proving bad faith rests upon the Educational institutions are duty-bound to inform the students of party alleging it. Although it took AMEX some time before it approved Pantaleons three charge requests, we find no evidence to suggest that it their academic status and not wait for the latter to inquire from the acted with deliberate intent to caus Pantaleon any loss or injury, or acted in former. The conscious indifference of a person to the rights or a manner that was contrary to morals, good customs or public policy. welfare of the person/persons who may be affected by his act or Damnum absque injuria: This case is an example of damnum absque omission can support a claim for damages. injuria - damage without injury, because AMEX did not violate any legal The modern tendency is to grant indemnity for damages in cases right of plaintiff Pantaleon. where there is abuse of right, even when the act is not illicit. If mere VII. Distinction between injury and damage - injury is the fault or negligence in ones acts can make him liable for damages violation of a legal right, damage is the loss or harm which results for injury caused thereby, with more reason should abuse or bad from the injury. Thus, there can be damage without injury in those faith make him liable. A person should be protected only when he instances in which the loss or harm was not the result of a violation acts in the legitimate exercise of his right, that is, when he of a legal duty. In such cases, the consequences must be borne by acts with prudence and in good faith, but not when he acts with the injured person alone, the law affords no remedy for damages negligence or abuse. resulting from an act which does not amount to a legal injury or Criticism: The Court should have cited Art.21 instead of 20 wrong. These situations are often called damnum absque injuria. In other words, in order that a plaintiff may maintain an 6. Barons Marketing v. CA. G.R. No. 126486. February 9, 1998

action for the injuries of which he complains, he must establish that such injuries resulted from a breach of duty which the defendant owed to the plaintiff - a concurrence of injury to the plaintiff and legal responsibility by the person causing it. The underlying basis for the award of tort damages is the premise that an individual was injured in contemplation of law. Thus, there must first be a breach of some duty and the imposition of liability for that breach before damages may be awarded; and the breach of such duty should be the proximate cause of the injury. B. Illegal Acts Article 20. Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter fo the same. Garcia v. Salvador supra Refresher: Ranida and her hepatitis tests. Court: In fine, violation of a statutory duty is negligence. Where the law imposes upon a person the duty to do something, his omission or nonperformance will render him liable to whoever may be injured thereby. Art. 20 provides the legal basis for the award of damages to a party who suffers damage whenever one commits an act in violation of some legal provision. This was incorporated by the Code Commission to provide relief to a person who suffers damage because another has violated some legal provision. Disposition: Damages awarded to Salvador C. Acts Contra Bonus Mores Article 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. A21 cannot be based on a negligent act Prosser and Keeton, pp. 870-896 Velayo v. Shell, supra The same [rationale behind A19 applies] concerning injurious acts that are contrary to public policy but are not forbidden by statute. There are countless acts of such character, but have not been foreseen by the lawmakers. Among these are many business practices that are unfair or oppressive, and certain acts of landholders and employers affecting their tenants and employees which contravene the public policy of social justice... A moral wrong or injury, even if it does not constitute a violation of a statute law, should be compensated by damages. Albenson v. A, supra Article 21 deals with acts contra bonus mores, and has the following elements: There is an act which is legal; 2. But which is contrary to morals, good custom, public order, or public policy; 3. It is done with intent to injure. --> essential There is a common element under Articles 19 and 21, and that is, the act must be intentional. However, Article 20 does not distinguish: the act may be done either "willfully", or "negligently". Crit: Again, I do not agree that A19 refers only to XIII. intentional acts. See UE v. Jader - there can be violation of A19 (performance of duty) due to negligence, granted that case is a bit strange. Albenson itself is based on negligence, but here the Court correctly did not allow recovery because the action is based on malicious prosecution and there is no evidence of bad faith. Even if HR provisions apply, it can only be based on A21 and not A20 (because the act of litigating is not contrary to law), and A21requires intent Wassmer v. Velez G.R. No. L-20089. December 26, 1964 Mere breach of a promise to marry is not an actionable wrong. Congress deliberately eliminated from the draft of the new Civil Code the provisions that would have it so. However, the extent to which acts not contrary to law may be perpetrated with impunity, is not limitless because of Art.21. Here, the case is not just a mere breach of promise to marry. As stated, mere breach of promise to marry is not an actionable wrong. But to formally set a wedding and go through all the above-described preparation and publicity, only to walk out of it when the matrimony is about to be solemnized, is quite different. This is palpably and unjustifiably contrary to good customs for which defendant must be held answerable in damages in

accordance with Article 21 aforesaid. Tanjanco v. CA G.R. No. L-18630. December 17, 1966 Acceding to sexual intercourse in consideration of promise to marry, without more (i.e. without the element of seduction) in this circumstance is not an actionable wrong under A21. The rule that mere breach of promise to marry is not actionable still applies. Example of the Code Commission refers to a tort upon a minor who has been seduced. The essential feature is seduction, that in law is more than mere sexual intercourse, or a breach of a promise of marriage; it connotes essentially the idea of deceit, enticement, superior power or abuse of confidence on the part of the seducer to which the woman has yielded. In other words, the breach of promise to marry in the example of the Code Commission is actionable not because of the breach, but (mainly) because of the fraud or deceit that accompanies seduction. Here, the sexual intercourse is a result of mutual agreement and lust, and the circumstances negate the existence of deceit. Baksh v. CA G.R. No. 97336. February 19, 1993 GR: The existing rule is that a breach of promise to marry per se is not an actionable wrong. Congress deliberately eliminated from the draft of the New Civil Code the provisions that would have made it so. The reason therefor is set forth in the report of the Senate Committees on the Proposed Civil Code, which is mainly due to prudential reasons. This case, like Tanjangco, is a suit for damages arising from a breach of promise to marry. Unlike in Tanjangco, however, plaintiff was allowed to recover here because there was an element of deception or fraud. Court: In the light of the above laudable purpose of Article 21, We are of the opinion, and so hold, that where a man's promise to marry is in fact the proximate cause of the acceptance of his love by a woman and his representation to fulfill that promise thereafter becomes the prosimnate cause of the giving of herself unto him in a sexual congress, proof that he had, in reality, no intention of marrying her and that the promise was only a subtle scheme or deceptive device to entice or inveigle her to accept him and to obtain her consent to the sexual act, could justify the award of damages pursuant to Article 21 not because of such promise to marry but because of the fraud and deceit behind it and the willful injury to her honor and reputation which followed thereafter. It is essential, however, that such injury should have been committed in a manner contrary to morals, good customs or public policy. E: Article 21 may be applied in a breach of promise to marry where the woman is a victim of moral seduction. Pe v. Pe G.R. No. L-17396. May 30, 1962 Family members of Lolita Pe were allowed to recover damages here because again, there is an element of seduction exercised by defendant, who in the language of the Court employed clever means to seduce Lolita to fall in love with him to the extent of having illicit relations with him, knowing full well that he is a married man. Lolita's eventual disappearance (presumably, elopement with defendant) is the damage to the plaintiffs that the defendant caused. Que v. IAC G.R. No. 66865. January 13, 1989 Refresher: Que is creditor of Nicolas who files suit for estafa thru bouncing checks against the latter. The charges were dismissed for lack of merit. Nicolas counters with a suit for malicious prosecution. Originally TC ruled in favor of Nicolas, but there was a reconsideration, and Judge Fernando dismissed the complaint. Judge Fernando as sustained by SC One cannot be held liable in damages for maliciously instituting a prosecution where he acted with probable cause. If the charge, although false, was made with an honest belief in its truth and justice, and there were reasonable grounds on which such a belief could be founded, the accusation could not be held to have been false in the legal sense. Even if it was eventually found that the charge or claim was unfounded, still the mistaken charge in the legal sense is not malicious. Cf Magbanua v. Junsay There is such presence of probable cause in this case. Since probable cause is present, it signifies as a legal consequence the absence of malice. Without malice or bad faith, a suit for malicious prosecution will not lie. In suits of malicious prosecution, plaintiff must establish by preponderance of evidence proof that the prosecution of action was motivated by a sinister design to vex and humiliate a person and to cast dishonor and disgrace to him.

Drilon v. CA G.R. No. 107019. March 20, 1997 Refresher: Adaza v. Drilon - stemmed from charge of rebellion with murder and frustrated murder against Adaza et al for the bloody December 1989 coup. Adaza filed complaint for malicious prosecution (but later said it was not for MP but for damages due to various malfeasance and misfeasance of petitioners), alleging sinister conspiracy in charging him with a felony that does not exist in the statute books. Court: Ruled in favor of Drilon et al. No COA for malicious prosecution here because the elements were not met. Definition of malicious prosecution: An action for damages brought by one against whom a criminal prosecution, civil suit, or other legal proceeding has been instituted maliciously and without probable cause, after the termination of such prosecution, suit, or other proceeding in favor of the defendant therein. The gist of the action is the putting of legal process in force, regularly, for the mere purpose of vexation or injury Legal bases: Articles 19, 20, 21, 26, 29, 32, 33, 35, 2217 and 2219 (8) To constitute malicious prosecution, however, there must be proof that the prosecution was prompted by a sinister design to vex and humiliate a person, and that it was initiated deliberately by the defendant knowing that his charges were false and groundless. Concededly, the mere act of submitting a case to the authorities for prosecution does not make one liable for malicious prosecution. Thus, in order for a malicious prosecution suit to prosper, the plaintiff must prove three (3) elements: (1) the fact of the prosecution and the further fact that the defendant was himself the prosecutor and that the action finally terminated with an acquittal; (2) that in bringing the action, the prosecutor acted without probable cause; and (3) that the prosecutor was actuated or impelled by legal malice, that is by improper or sinister motive. Element no (1) and (3) is missing. Case was not yet terminated, and there is no allegation of lack of probable cause in the petitioner's actuations. Even though the crime charged really does not exist, the prosecution was moved by an honest belief that the case could be distinguished from People v. Hernandez doctrine, which was reiterated in Enrile but not unanimously. Good faith is always presumed, and even here, doubtful or difficult question of law may become the basis of good faith. Magbanua v. Junsay 515 SCRA 419 Refresher: Magbanua was prosecuted by respondents for allegedly robbing her employer, Dr. Junsay. Magbanua sought to recover damages based on malicious prosecution, not based on the alleged physical maltreatment she received from the hands of the respondents while investigating the case (because otherwise, the latter action has prescribed). Court said she cannot recover under malicious prosecution because there was no legal malice on the part of respondents (i.e., there was probable cause in filing the Information for Robbery). Cites Drilon: There must be proof that the prosecution was prompted by a sinister design to vex and humiliate a person, and it was initiated deliberately by defendant knowing the charges were false and groundless Four elements:

Court: Allowed for damages. Espino absolutely had no intention to steal the file. On the contrary, he took the item with the intention of buying and paying for it. Considering that he was not, and could not be, shoplifting, and there was negation of intent to steal on his part based on his personal circumstances, defendants were in the wrong in publicly accusing him of shoplifting and willfully causing loss or injury to him in manner contrary to morals, good customs or public policy. D. Even though the defendants have the right of self defense granted by A429 to protect their property, the manner of its exercise was clearly not called for in the circumstances, because it was carried in a manner offensive to Espino's dignity (defamatory). NB: Damages reduced because Espino was guilty of contributory negligence. Carpio v. Valmonte 438 SCRA 38 Refresher: This is the case of the wedding planner Valmonte being publicly accused by Carpio, aunt of the bride, of stealing considerably expensive jewelry left in a paper bag in the comfort room of the suite. Valmonte demanded formal letter of apology from Carpio to redeem her besmirched reputation, but this was ignored, hence the suit for damages. RTC dismissed the case as damnum absque injuria, but CA ruled differently, saying Valmonte has clearly established that she was singled out by Carpio as the one responsible for the loss of the jewelry. SC sustained CA Rule 45 cases should present only questions of law, not questions of fact. Whether or not Carpio did publicly impute theft on Valmonte is a question of fact C's testimony consists of mere unsubstantiated denial and hence has no probative value whatsoever. This case clearly falls under A19 in relation to A21. Elements of A19 (legal right or duty, exercised in bad faith, sole intent to prejudice [?]) present. C's verbal reproach against V was clearly uncalled for, considering that by her own account nobody knew that she brought such kind and amount of jewelry. True she had the right to ascertain the identity of the malefactor, but to malign V without an iota of proof is impermissible. Disposition: Moral damages awarded to V in the amount of P100 thousand Quisaba v. Sta Ines 58 SCRA 771 Refresher: Issue here is whether a complaint for damages (moral, exemplary), termination pay and attorney's fees arising from an ER's constructive dismissal is cognizable by regular courts or by the NLRC. Held: The case is cognizable by regular courts. Even though there is an existence of ER-EE relationship, the complaint is grounded not on dismissal per se, as Q does not ask for reinstatement or backwages, but in the manner of his dismissal and the consequent effects of such dismissal. Cf elements of a labor dispute cognizable by NLRC - 1.) EE-ER relationship, 2.) matters arising from employment relation, 3.) controversy can be resolved by reference to LC, CBA or other labor statutes. Third element is missing. Right of ER to terminate should not be confused with the manner in which it was exercised and the effects flowing therefrom. The basis of the action is actually A1701 and A21 of the CC. Class Notes Malicious prosecution: Definition - see Drilon v. Court of Appeals Legal bases A19 abuse of right, elements: legal right - right to litigate Exercised in bad faith - litigating without probable cause 3. Sole intent to injure - malice is primary motive for bringing the action NB: there are many ways to abuse right to litigate, which will not fall under malicious prosecution A20: Example, if the statute explicitly states that no action under it can be brought against a person within three years, and you bring a suit against a person for violation of that statute, then you can say that that action is malicious A21: A26:

Prosecution did occur, and defendant was either the prosecutor or the instigator of its commencement; Criminal [or civil] action ended with an acquittal; In bringing the action, the prosecutor acted without probable cause Prosecution was impelled by legal malice - an improper or sinister motive Gravamen of the action is deliberate initiation of an action with knowledge that the charges were false and groundless. Elements 3 and 4 missing Grand Union v. Espino 94 SCRA 953 Refreher: Case for recovery of damages under A21 in relation to A2219 of CC. Plaintiff Espino is a regular customer of South Supermarket who was accused of shoplifting for negligently forgetting to pay for the rat tail file he wanted to purchase.

A29: grants a right to the complainant to still prosecute the civil aspect of a dismissed criminal case. If the complainant does file a civil case on the basis of Article 29, this action can be by itself the malicious prosecution. BUT, Article 29 by itself cannot be the legal basis of a malicious prosecution case filed by the defendant-accused. - really questionable A32: the violation of one of the listed rights happened on the occasion of a criminal proceeding, or on the occasion of malicious prosecution A33: can be used as a basis because malicious prosecution of a person can also be defamation of that person A35 Criticism: enumeration is dubious. Should have stuck to article 21, because it is a catch all that could technically cover the tort of malicious prosecution. Also, the specific provisions mentioned have their separate/distinct elements, so how would you fit in malicious prosecution? Personally, I think that the tort of malicious prosecution should be confined under article 19, because if you think about it, malicious prosecution is really abuse of the inherent right to litigate, I.e. Misuse of the legal process. Elements: see cases Gravamen: sinister design to vex, humiliate, a person by filing groundless suits. The gravamen of malicious prosecution is the deliberate initiation of an action with the knowledge that the charges were false and groundless. Purpose: balance the inherent right to litigate and the public policy behind it, and the right of a person to be free from vexatious litigation. - connection between probable cause and malice. In Philippine case law, the presence of probable cause negates the presence of malice. Sir's questions: is there malicious prosecution in the following cases? 1.) Luz has a grudge against Kres. Luz told Jao that he saw Kres steal from his store. Jao filed complaint against Kres, where Luz testified. Luz didn't really witness the theft. - no malicious prosecution here. Malicious prosecution requires the absence of probable cause, and under the facts of this case, there can be probable cause to believe that Kres had committed the theft, if she maintains the story that Kres stole something from the store of Jau. - or there could be malicious prosecution on the part of Luz. 2.) A filed a case for rape against B. A later finds out during the course of the trial that it was actually B's twin brother who raped her. Is there malicious prosecution? - no. Principle: probable cause should be determined on the basis of facts known to the defendant at the time she instituted the case. Under the facts, a has a probable cause to believe that it was b. 3.) A was advised by the police that a residents failure to give warming signs in case that the front of his house was impassable due to floods is a crime. A whose car stalled and floated on the front of B's house, filed a case against B. no malicious prosecution here because of reliance on a public officer's advise... See prosser and Keeton.

Tort of privacy: deals with interference on the right to Complex of four different tort actions:

be let alone.

Appropriation

Definition: appropriation for defendant's benefit of the plaintiff's name or likeness. Recognizes a person's exclusive right to his own trade name Special wrong of pirating another persons identity for some advantage of his own Appropriation should be identifiable Appropriation should not be incidental Unreasonable intrusion

Offensive or objectionable intrusion unto another person's solitude or to his private affairs The thing intruded upon must be private Two important factors:

Means used Defendant's purpose Public disclosure of private facts

Highly objectionable publicity given to private information about the plaintiff St Louis v. CA 133 SCRA 179 Refresher: Case of appropriation of Dr. Aramil's house in an advertisement of defendant realty corporation. Damaged awarded to plaintiff. Gregorio v. CA, supra It is the position of Sansio and Datuin that the complaint for damages filed by Gregorio before the RTC was for malicious prosecution, but it failed to allege the elements thereof, such that it was aptly dismissed on appeal by the CA on the ground of lack of cause of action. In their comment, citing Albenson Enterprise Corporation v. Court of Appeals,20 they posit that Article 26 of the Civil Code, cited by Gregorio as one of the bases for her complaint, and Articles 19, 20, and 21 of the same Code, mentioned by the RTC as bases for sustaining the complaint, are the very same provisions upon which malicious prosecution is grounded. The Court disagreed. The case was one for damages for negligence of Datuin and Sansio in determining the real identity of the issuer of the bouncing checks, compounded by their failure to indicate her correct address thus depriving her of opportunity to controvert the charges. Her cause of action against defendants is based on A2176 in relation to A2180 and A26 Article 26 of the Civil Code grants a cause of action for damages, prevention, and other relief in cases of breach, though not necessarily constituting a criminal offense, of the following rights: (1) right to personal dignity; (2) right to personal security; (3) right to family relations; (4) right to social intercourse; (5) right to privacy; and (6) right to peace of mind Spouses Guanio v. Makati Shangri-la G.R. No. 190601. February 7, 2011 Refresher: Court allowed nominal damages to spouses Guanio, on the dubious basis of A26. It was not really discussed.

D.

Violation of Human Dignity

Art. 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief: (1) Prying into the privacy of another's residence: (2) Meddling with or disturbing the private life or family relations of another; (3) Intriguing to cause another to be alienated from his friends; (4) Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition. Prosser and Keeton, pp. 849-856

Dereliction of Duty

Article 27. Any person suffering material or moral loss because a public servant or employee refuses or neglects, without just cause, to perform his official duty may file an action for damages and other relief against he latter, without prejudice to any disciplinary administrative action that may be taken. F. Unfair Competition

Article 28. Unfair competition in agricultural, commercial or industrial

enterprises or in labor through the use of force, intimidation, deceit, machination or any other unjust, oppressive or highhanded method shall give rise to a right of action by the person who thereby suffers damage. VIII. Interference with contractual relations

Article 1314.Any third person who induces another to violate his contract shall be liable for damages to the other contracting party. Prosser and Keeton, pp. 978-1004 Gilchrist v. Cuddy 29 Phil 542 So Ping Bun v. CA G.R. No. 120554 September 21, 1999 Lagon v. CA 453 SCRA 616 Go v. Cordero, G.R. No. 164703. May 4, 2010