TORTS AND DAMAGES

GENERAL CONSIDERATIONS Guardians are liable for damages caused by the minors or
incapacitated persons who are under their authority and live
Art. 2176. Whoever by act or omission causes damage to in their company.
another, there being fault or negligence, is obliged to pay for
the damage done. Such fault or negligence, if there is no pre
The owners and managers of an establishment or enterprise
existing contractual relation between the parties, is called a
are likewise responsible for damages caused by their
quasi-delict and is governed by the provisions of this Chapter
employees in the service of the branches in which the latter
are employed or on the occasion of their functions.

Art. 2177. Responsibility for fault or negligence under the

preceding article is entirely separate and distinct from the civil Employers shall be liable for the damages caused by their
liability arising from negligence under the Penal Code. But the employees and household helpers acting within the scope of
plaintiff cannot recover damages twice for the same act or their assigned tasks, even though the former are not engaged
omission of the defendant. in any business or industry.

The State is responsible in like manner when it acts through a

Art. 2178. The provisions of Articles 1172 to 1174 are also special agent; but not when the damage has been caused by
applicable to a quasi-delict. (n) the official to whom the task done properly pertains, in which
case what is provided in article 2176 shall be applicable.
Art. 1172. Responsibility arising from negligence in the
performance of every kind of obligation is also demandable,
Lastly, teachers or heads of establishments of arts and trades
but such liability may be regulated by the courts, according to
shall be liable for damages caused by their pupils and students
the circumstances. (1103)
or apprentices, so long as they remain in their custody.
Art. 1173. The fault or negligence of the obligor consists in the
omission of that diligence which is required by the nature of The responsibility treated of in this article shall cease when
the obligation and corresponds with the circumstances of the the persons herein mentioned prove that they observed all
persons, of the time and of the place. When negligence shows the diligence of a good father of a family to prevent damage.
bad faith, the provisions of Articles 1171 and 2201, paragraph
2, shall apply.
Article 2181. Whoever pays for the damage caused by his
If the law or contract does not state the diligence which is to dependents or employees may recover from the latter what
be observed in the performance, that which is expected of a he has paid or delivered in satisfaction of the claim.
good father of a family shall be required. (1104a)

Art. 1174. Except in cases expressly specified by the law, or Art. 2182. If the minor or insane person causing damage has
when it is otherwise declared by stipulation, or when the no parents or guardian, the minor or insane person shall be
nature of the obligation requires the assumption of risk, no answerable with his own property in an action against him
person shall be responsible for those events which could not where a guardian ad litem shall be appointed.
be foreseen, or which, though foreseen, were inevitable.
(1105a)
Art. 2183. The possessor of an animal or whoever may make
use of the same is responsible for the damage which it may
Art. 2179. When the plaintiff’s own negligence was the cause, although it may escape or be lost. This responsibility
immediate and proximate cause of his injury, he cannot shall cease only in case the damage should come from force
recover damages. But if his negligence was only contributory, majeure or from the fault of the person who has suffered
the immediate and proximate cause of the injury being the damage.
defendant’s lack of due care, the plaintiff may recover
damages, but the courts shall mitigate the damages to be
awarded.
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
Article 2180. The obligation imposed by article 2176 is misfortune. It is disputably presumed that a driver was
demandable not only for one's own acts or omissions, but also negligent, if he had been found guilty or reckless driving or
for those of persons for whom one is responsible. violating traffic regulations at least twice within the next
preceding two months.
The father and, in case of his death or incapacity, the mother,
are responsible for the damages caused by the minor children If the owner was not in the motor vehicle, the provisions of
who live in their company. Article 2180 are applicable.

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.

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 TORTS AND DAMAGES

or falling from the same.

Art. 2186. Every owner of a motor vehicle shall file with the
proper government office a bond executed by a government Art. 2194. The responsibility of two or more persons who are
controlled corporation or office, to answer for damages to liable for quasi-delict is solidary.
third persons. The amount of the bond and other terms shall
be fixed by the competent public official.
Tort

Art. 2187. Manufacturers and processors of foodstuffs, drinks, o In common law, tort is an unlawful violation of private right,
toilet articles and similar goods shall be liable for death or not created by contract, and which gives rise to an action for
injuries caused by any noxious or harmful substances used, damages.
although no contractual relation exists between them and the o It is an act or omission producing an injury to another,
consumers. without any previous existing lawful relation of which the
said act or omission may be said to be a natural outgrowth
or incident.
Art. 2188. There is prima facie presumption of negligence on
the part of the defendant if the death or injury results from his N.B. Tort law not concerned with the criminal liability of the
possession of dangerous weapons or substances, such as offender.
firearms and poison, except when the possession or use
thereof is indispensable in his occupation or business. Kinds of tort liabilities:

1. Negligence tort – Omission to do acts required under

Art. 2189. Provinces, cities and municipalities shall be liable the attendant circumstances resulting in damage or
for damages for the death of, or injuries suffered by, any injury to another. It is a voluntary act or omission
person by reason of the defective condition of roads, streets, which results in injury to others without intending to
bridges, public buildings, and other public works under their cause the same.
control or supervision. 2. Intentional tort - Conduct where the actor desires to
cause the consequences of his act to which the law
declared wrong or believes the consequences are
Art. 2190. The proprietor of a building or structure is substantially certain to result from it.
responsible for the damages resulting from its total or partial Intentional torts include assault, battery, false
collapse, if it should be due to the lack of necessary repairs.
imprisonment, defamation, invasion of privacy and
interference of property.
3. Strict liability tort - The person is made liable
Art. 2191. Proprietors shall also be responsible for damages
independent of fault or negligence upon submission of
caused:
proof of certain facts.
(1) By the explosion of machinery which has not been taken
Major purposes of tort law
care of with due diligence, and the inflammation of explosive
substances which have not been kept in a safe and adequate 1. To provide a peaceful means for adjusting the rights of
place;
parties who might otherwise take the law into their
own hands;
(2) By excessive smoke, which may be harmful to persons or
property; 2. Deter wrongful conduct;
3. To encourage socially responsible behaviour;
(3) By the falling of trees situated at or near highways or lanes, 4. To restore injured parties to their original condition,
if not caused by force majeure; insofar as the law can do this, by compensating them
for their injury.
(4) By emanations from tubes, canals, sewers or deposits of
infectious matter, constructed without precautions suitable to Tort vs quasi-delict
the place.
RAMIREZ G.R. No. L-24803 May 26, 1977
PEDRO ELCANO and PATRICIA ELCANO, in their capacity as
Art. 2192. If damage referred to in the two preceding articles Ascendants of AgapitoElcano, deceased,plaintiffs-appellants,
should be the result of any defect in the construction vs.
mentioned in Article 1723, the third person suffering damages REGINALD HILL, minor, and MARVIN HILL, as father and
may proceed only against the engineer or architect or Natural Guardian of said minor, defendants-appellees.
contractor in accordance with said article, within the period
therein fixed. Facts:
o Reginald Hill, a minor, caused the death of
AgapitoElcano(son of Pedro Elcano).
o Pedro Elcano filed a criminal case against Reginald but the
Art. 2193. The head of a family that lives in a building or a part
latter was acquitted for “lack of intent coupled with
thereof, is responsible for damages caused by things thrown
mistake.”

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 TORTS AND DAMAGES

o Elcano then filed a civil action against Reginald and his ART 2176. Whoever by act or omission causes damage to
father (ATTY. Marvin Hill) for damages based on Article another, there being fault or negligence, is obliged to pay for
2180 of the Civil Code. the damage done. Such fault or negligence, if there is no pre-
o Hill argued that the civil action is barred by his son’s existing contractual relation between the parties, is called a
acquittal in the criminal case; and that if ever, his civil quasi-delict and is governed by the provisions of this Chapter.
liability as a parent has been extinguished by the fact that
his son is already an emancipated minor by reason of his ART. 2177. Responsibility for fault or negligence under the
marriage. preceding article is entirely separate and distinct from the civil
liability arising from negligence under the Penal Code. But the
Issue: (1) Is the present civil action for damages barred by the plaintiff cannot recover damages twice for the same act or
acquittal of Reginald in the criminal case wherein the action for omission of the defendant.
civil liability, was not reversed?
 In ART 2177, the former is a violation of the criminal law,
Held: NO while the latter is a "culpa aquiliana" or quasi-delict
which has its own foundation and individuality, separate
(In BARREDO VS. GARCIA) from criminal negligence.
o The same given act can result in civil liabilitynot only  Acquittal from an accusation of criminal negligence,
under the Penal Codebut also underthe Civil Code whether on reasonable doubt or not, shall not be a bar to
a subsequent civil action,not for civil liability arising from
Dual characterCriminaland Civil,of fault or negligence as a criminal negligence, but for damages due to a quasi-delict
source of obligation or 'culpa aquiliana'.
o But said article forestalls a double recovery.
1. The Revised Penal Code in articles 365 punishes not only  In ART 2176, it refers to "fault or negligence which covers
reckless but also simple negligence. If we were to hold not only acts "not punishable by law" but also acts
that articles 1902 to 1910 of the Civil Coderefer only to criminal in character, whether intentional and voluntary
fault or negligence not punished by law, accordingly to or negligent.
the literal import of article 1093 of the Civil Code, the
legal institution ofculpa aquiliana would have very little  The offended party is not allowed,if he is actually charged
scope and application in actual life. also criminally, to recover damages on both scores, and
would be entitled in such eventuality only to the bigger
Death or injury to persons and damage to property- through award of the two, assuming the awards made in the two
any degree of negligence - even the slightest - would have to cases vary.
be indemnified only through the principle of civil liability arising  The extinction of civil liability referred to in Par. (e) of
from a crime. Section 3, Rule 111, refers exclusively to civil liability
 In such a state of affairs, what sphere would remain founded on Article 100 of the Revised Penal Code,
for cuasi-delito or culpa aquiliana? whereas the civil liability for the same act considered as
a quasi-delict only and not as a crimeis not extinguished
2. To find the accused guilty in a criminal case, proof of guilt even by a declaration in the criminal case that the criminal
beyond reasonable doubt is required, while in a civil act charged has not happened or has not been committed
case,preponderance of evidence is sufficient to make the by the accused.
defendant pay in damages.  Briefly stated, in reiteration of Garcia, culpa
There are numerous cases ofcriminal negligencewhich cannot aquiliana includes voluntary and negligent acts which
be shown beyond reasonable doubt, butcan be proved by a may be punishable by law.
preponderance of evidence.
 In such cases, the defendant can and should be made Issue: (2)
responsible in a civil actionunder articles 1902 to 1910 of May Article 2180 (2nd and last paragraphs) of the Civil Code be
the Civil Code. Otherwise. there would be many applied against Atty. Hill, notwithstanding that at the time of
instances of unvindicated civil wrongs. the occurrence complained of, Reginald, though a minor, living
with and getting subsistence from his father, was already
3. Because of the broad sweep of the provisions of both the legally married?
Penal Code and the Civil Codeon this subject, there has
grown up a common practice to seek damages only by Held: YES
virtue of the civil responsibility arising from a crime,
forgetting that there is another remedy, which is by “ART. 2180 The obligation imposed by article 2176 is
invoking articles 1902-1910 of the Civil Code. demandable not only for one's own acts or omissions, but also
 Although this habitual method is allowed by our laws, it for those of persons for whom one is responsible. The father
has nevertheless rendered useless the more expeditious and, in case of his death or incapacity, the mother, are
and effective remedy based on culpa aquiliana or culpa responsible. The father and, in case of his death or incapacity,
extra-contractual. the mother, are responsible for the damages caused by the
minor children who live in their company."
Ratio: (1)
The acquittal of Reginald Hill in the criminal casehas not  While it is true that parental authority is terminated upon
extinguished his liability for quasi-delict,hence that emancipation of the child and under Article 397,
acquittal is not a bar to the instant action against him. emancipation takes place "by the marriage of the minor
(child)", it is also clear that pursuant to Article

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 TORTS AND DAMAGES

399,emancipation by marriage of the minor is not really mention any negligence on the part of
full or absolute. Torzuela in shooting Atty Napoleon Dulay; OR
 Emancipation by marriage or by voluntary concession (B) that the same was done in the
shall terminate parental authority over the child's person. performance of his duties.
o It shall enable the minor to administer his property as o He ruled that mere allegations of the concurring
though he were of age, but he cannot borrow money negligence of the Mrs Dulay without stating the facts
or alienate or encumber real property without the showing such negligence are mere conclusions of law. He
consent of his father or mother, or guardian. also declared that the complaint was one for damages
o He can sue and be sued in court only with the founded on crimes punishable under ARTICLES 100 AND
assistance of his father, mother or guardian. 103 of the Revised Penal Code as distinguished from
those arising from, QUASI-DELICT.
In the instant case, Reginald was still subservient to and
dependent on his father
Issue: WON the complaint sufficiently alleged an actionable
REASON BEHIND THE JOINT AND SOLIDARY LIABILITYunder breach on the part of the Security Guard Torzuela and his
Article 2180 employer Safeguard/Superguard Security Corporation.
 Obligation of the parent to supervise their minor children
in order to prevent them from causing damage to third Held: Yes. Petition of Mrs Dulay was granted.
persons.
 Such emancipation does not carry with it freedom to Ratio: The Court ruled that Safeguard is incorrect in its
enter into transactions or do any act that can give rise to interpretation that Article 2176 is limited in its scope to acts or
judicial litigation. omissions resulting from negligence. It stressed that it is well-
entrenched doctrine that Article 2176 covers NOT ONLY ACTS
Article 2180 applies to Atty. Hill notwithstanding the COMITTED BY NEGLIGENCE, BUT ALSO ACTS WHICH ARE
emancipation by marriage of Reginald. VOLUNTARY AND INTENTIONAL.
 However, as it is evident that Reginald is now of age, as
a matter of equity, the liability of Atty. Hill has become Article 2176 of the New Civil Code provides:
milling, subsidiary to that of his son. Art. 2176. Whoever by act or omission causes damage
to another, there being fault or negligence, is obliged to
pay for the damage done. Such fault or negligence, if
DULAY VS COURT OF APPEALS there is no pre-existing contractual relation between the
GR No 108017 April 03, 1995 Second Division parties is called a quasi-delict and is governed by the
BIDIN J.: provisions of this Chapter.

1st-The Trial Court decided in favor of Safeguard and Other discussions:

Superguard Security Corporation. It granted their Motion to
Dismiss the complaint of Mrs Dulay ANALYSIS OF ARGUMENTS: The dispute in this case is the
2nd –The Court of Appeals reaffirmed the decision of the lower nature of Mrs Dulay’s CAUSE
court OF ACTION
3rd- Supreme Court reversed the CA’s decision and granted the Mrs Dulay Safeguard
petition of Mrs Dulay. Argument The filing of the The filing of the
civil action is civil action of Mrs
Facts: founded on a Dulay is founded
o On December 7, 1988, an altercation between SECURITY quasi-delict on a delict since it
GUARD BENIGNO TORZUELA and ATTY. NAPOLEON is not attended by
DULAY occurred at the "Big Bang Sa Alabang," Alabang negligence
Village, Muntinlupa which resulted in the death of Atty
Napoleon Dulay who was SHOT AND KILLED by Benigno TAKE NOTE: Republic vs Estenzo, 158 SCRA 282 (1988)
Torzuela, the security guard on duty at the said carnival. “The nature of a cause of action is
determined by the facts alleged in the complaint as constituting
o On February 08, 1989, Maria Benita A. Dulay, widow of the cause of action.”
the deceased Napoleon Dulay, in her own behalf and in
behalf of her minor children, filed a Civil Case for an (TAKE NOTE: The issue here is not one of liability but of the
action for damages against BENIGNO TORZUELA and cause of action since the Lower court dismiss the complaint of
Safeguard Investigation and Security Co., Inc., Mrs Dulay. The Supreme Court stated that to prove liability are
("SAFEGUARD") and/or Superguard Security Corp. questions which can be better resolved after trial on the merits
("SUPERGUARD"), who are the alleged employers of where each party can present evidence to prove their
defendant Torzuela. respective allegations and defenses. Said must be distinguish
from the cause of action alone to avoid confusion)
o On April 13, 1989, JUDGE REGINO issued an order
granting SUPERGUARD'S motion to dismiss and Question: In determining whether the allegations of a
SAFEGUARD'S motion for exclusion as defendant. He held complaint are SUFFICIENT TO SUPPORT A CAUSE OF ACTION,
that the complaint did not it must be borne in mind that the complaint DOES NOT HAVE
(A)state facts necessary or sufficient to (A)to establish or
constitute a quasi-delict since it does not (B)allege the facts

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 TORTS AND DAMAGES

proving the existence of a cause of action at the outset. pacified Mr. Carrascoso to give his seat to the white man" and
Citing the case of Del Bros Hotel Corporation v. CA, the Court plaintiff reluctantly gave his "first class" seat in the plane.3
said that this will have to be done at the trial on the merits of
Decision of the lower Courts:
the case.
1. Court of First Instance - sentenced petitioner to pay
In Rava Dev't. Corp. v. CA, 211 SCRA 152 [1992], the Court respondent Rafael Carrascoso P25,000.00 by way of moral
declared that damages; P10,000.00 as exemplary damages; P393.20
“If the allegations in a complaint can furnish a representing the difference in fare between first class and
sufficient basis by which the complaint can be maintained, the tourist class for the portion of the trip Bangkok- Rome, these
same should not be dismissed regardless of the defenses that various amounts with interest at the legal rate, from the date
may be assessed by the defendants.” of the filing of the complaint until paid; plus P3,000.00 for
attorneys' fees; and the costs of suit.
Question: What must be shown in sustaining a motion to
2. Court of Appeals - slightly reduced the amount of refund on
dismiss for lack of cause of action?
Carrascoso's plane ticket from P393.20 to P383.10, and voted
Answer: The Court cited the case of Azur v. Provincial Board, 27
to affirm the appealed decision "in all other respects", with
SCRA 50 [1969]. The complaint must show that the claim for
costs against petitioner.
relief does not exist rather than that a claim has been
defectively stated, is ambiguous, indefinite or uncertain. Contention of Air France - respondent knew that he did not
Application in the case at bar: Since the petitioners clearly have confirmed reservations for first class on any specific
sustained an injury to their rights under the law, it would be flight, although he had tourist class protection; that,
more just to allow them to present evidence of such injury. accordingly, the issuance of a first class ticket was no
guarantee that he would have a first class ride, but that such
Question: What are the examples of issues that center on would depend upon the availability of first class seats.
liability?
Answer: 1. Whether or not the shooting was actually reckless
and wanton or attended by negligence and whether it was Issue: WON Carrasco is entitled to damages
actually done within the scope of Torzuela's duties;
2. Whether the employer SUPERGUARD and/or
SAFEGUARD failed to exercise the diligence of a good father of Held: Yes
a family; and
3. Whether the defendants are actually liable
Ratio: That said contract was breached when petitioner failed
to furnish first class transportation at Bangkok; and that there
Quasi – delict and contract was bad faith when petitioner's employee compelled
Carrascoso to leave his first class accommodation berth "after
he was already, seated" and to take a seat in the tourist class,
G.R. No. L-21438 September 28, 1966
by reason of which he suffered inconvenience,
AIR FRANCE, petitioner, vs. RAFAEL CARRASCOSO and the embarrassments and humiliations, thereby causing him
HONORABLE COURT OF APPEALS, respondents. mental anguish, serious anxiety, wounded feelings and social
humiliation, resulting in moral damages.
SANCHEZ, J.:
The responsibility of an employer for the tortious act of its
employees need not be essayed. It is well settled in law. 41 For
Facts: the willful malevolent act of petitioner's manager, petitioner,
his employer, must answer. Article 21 of the Civil Code says:
Plaintiff, a civil engineer, was a member of a group of 48
Filipino pilgrims that left Manila for Lourdes on March 30, ART. 21. Any person who willfully causes loss or
1958. injury to another in a manner that is contrary to
morals, good customs or public policy shall
On March 28, 1958, the defendant, Air France, through its
compensate the latter for the damage.
authorized agent, Philippine Air Lines, Inc., issued to plaintiff a
"first class" round trip airplane ticket from Manila to Rome. In parallel circumstances, we applied the foregoing legal
precept; and, we held that upon the provisions of Article 2219
From Manila to Bangkok, plaintiff travelled in "first class", but
(10), Civil Code, moral damages are recoverable. 42
at Bangkok, the Manager of the defendant airline forced
plaintiff to vacate the "first class" seat that he was occupying Passengers do not contract merely for transportation. They
because, in the words of the witness Ernesto G. Cuento, there have a right to be treated by the carrier's employees with
was a "white man", who, the Manager alleged, had a "better kindness, respect, courtesy and due consideration. They are
right" to the seat. When asked to vacate his "first class" seat, entitled to be protected against personal misconduct,
the plaintiff, as was to be expected, refused, and told injurious language, indignities and abuses from such
defendant's Manager that his seat would be taken over his employees. So it is, that any rule or discourteous conduct on
dead body; a commotion ensued, and, according to said the part of employees towards a passenger gives the latter an
Ernesto G. Cuento, "many of the Filipino passengers got action for damages against the carrier.
nervous in the tourist class; when they found out that Mr.
Although the relation of passenger and carrier is "contractual
Carrascoso was having a hot discussion with the white man
both in origin and nature" nevertheless "the act that breaks
[manager], they came all across to Mr. Carrascoso and
the contract may be also a tort". The stress of Carrascoso's
action as we have said, is placed upon his wrongful expulsion.

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 TORTS AND DAMAGES

This is a violation of public duty by the petitioner air carrier — Sub-Issue: Whether or not there is an Agency relationship
a case of quasi-delict. Damages are proper. between CAI and Holiday Travel and Mager.
On balance, we say that the judgment of the Court of Appeals
Held: 1. No 2. Yes.
does not suffer from reversible error. We accordingly vote to
Ratio:
affirm the same. Costs against petitioner. So ordered.
To determine is CAI should be held liable based on a quasi-
delict,determine first if there is an Agency Relationship.
Second Division
Sps. Viloria vs. Continental Airlines, Inc. The court held that there is an Agency Relationship between
G.R No. 188288 January 16, 2012 CAI and Holiday Travel. The following are the elements of
Reyes, J.: agency: 1. There is consent, express or implied of theparties to
establish the relationship; 2. The object is the execution of a
juridical act in relation to a third person; 3. The agent acts as a
Facts: representative and not for himself, and 4. The agent acts within
the scope of his authority.
o Spouses Viloria are trying to buy a round tripTrain Ticket
departing San Diego going to Newark with Amtrak. The first and second element are present as CAI does not deny
that it concluded an agreement with Holiday Travel, whereby
However Ms. Mager an agent of Holiday Travel told the
Holiday Travel would enter into contracts of carriage with third
spouses that the Amtrak is fully booked and no available persons on CAI’s behalf. The third is present since Holiday
seats with that particular route. Instead, Ms. Mager Travel merely acted in a representative capacity and it is CAI
offered Continental Airlines for their particular trip for and not Holiday Travel who is bound by the contracts of
$400 per person. carriage. Fourth element: Holiday Travel did not exceed its
o Fernando Viloria subsequently tried to rebook their flight authority.
to have it earlier but Ms. Mager informed them that the
same flight is not available on Aug 6, 1997 via Continental
Main Issue:
Airline, instead Mager offered Frontier Air but with a
higher fare and will travel by night. Fernando Viloria did In actions based on quais-delict, a principal can only be held
not accept this offer and requested for a refund, but liable for the tort committed by its agent’s employees if it has
Mager told them that the ticket with Continental Airline been established by preponderance of evidence that the
is non-refundable instead what they can offer is to principal was also at fault or negligent or that the principal
exercise control and supervision over them.
convert the value of the ticket to a travel fund which the
Spouses can use to buy another ticket valid for 1 year.
o On the day of their trip, Fernando Viloria tried to inquire To determine if an airline company should be held liable. A
with Amtrak and discovered that there are available seats prior determination of the nature of the passenger’s cause of
from San Diego bound to Newark. Fernando asked Mager action is necessary. If the passenger’s cause of action against
why he was told that there were no available seats with the airline company is premised onculpaaquiliana or quasi-
Amtrak, but there were actually available seats with delict for a tort committed by the employee of the airline
company’s agent, there must be an independent showing that
Amtrak if you booked directly with them.
the airline company was at fault or negligent or has contributed
o Fernando demanded again for a refund however Mager to the negligence or tortuous conduct committed by the
was firmed that the tickets were non-refundable and may employee of its agent. The mere fact that the employee of the
only be converted to a travel fund. Fernando upon airline company’s agent has committed a tort is not sufficient
arriving in the Philippines, went to CAI’s Manila Office to to hold the airline company liable. Article 2180 of the Civil Code
have the subject tickets to be converted for a Manila- Los does not make the principal vicariously liable for the tort
committed by its agent’s employees and the principal-agency
Angeles flight. However, he was informed that he can only
relationship per se does not make the principal a party to such
use his ticket because the tickets are non-transferrable
tort; hence, the need to prove the principal’s own fault or
hence Fernando cannot use the ticket of his spouse, and negligence.
needs to pay more.
o Fernando filed a complaint against CAI for the refund of Art. 2180 par. 4. The owners and managers
the money paid for the subject ticket contending that CAI of an establishment or enterprise are
committed breach of contract by charging more likewise responsible of damages cause by
their employees in the service of the
compared to other airlines and not allowing him to use
branches in which the latter are employed
his Spouse’s ticket. RTC favored Spouses Fernando and or on the occasion of their functions.
the C.A overturned the RTC’s decision favoring CAI, hence
this petition. Spouses Viloria’s cause of action on the basis of Mager’s alleged
fraudulent misrepresentation is clearly one of tort or quasi-
Main Issue: Whether or not Continental Airlines, Inc. as a delict, there being no pre-existing contractual relationship
Principal is liable based on quasi-delict. between them. Therefore, it was incumbent upon Spouses
Viloria to prove that CAI was equally at fault.

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 TORTS AND DAMAGES

or the doing of something which a prudent and reasonable

However, the records are devoid of any evidence by which CAI’s man would not do
alleged liability can be substantiated. Apart from their claim
that CAI must be held liable for Mager’s supposed fraud Kinds of negligence
because Holiday Travel is CAI’s agent, Spouses Viloria did not
present evidence that CAI was a party or had contributed to 1. Culpa contractual 1170-1174 CC
Mager’s complained act either by instructing or authorizing 2. Culpa criminal 365 RPC
Holiday Travel and Mager to issue the said misrepresentation. 3. Culpa aquiliana 2176 CC

Other Discussions: N.B. The bases of liability are separate and distinct from each
other even if only one act or omission is involved.
Assuming that CAI has control over Mageror has authorized
Mager in his acts Spouses Viloria cannot still claim for a refund A single act or omission may give rise to two or more causes of
based on fraud. action.

Under Article 1338 of the Culpa criminal Culpa aquiliana Culpa contractual
Civil Code, there is fraud Legal basis of liability
when, through insidious There can be no As long there is The obligation
words or machinations of crime unless there fault or negligence arises from the
one of the contracting is a law punishing resulting in breach of
parties, the other is induced the act. damage or injury contract.
to enter into a contract to another.
which, without them, he Nature of liability
would not have agreed to. In
Direct, Direct, Incidental to the
order that fraud may vitiate
substantive and substantive and performance of an
consent, it must be the
independent. independent. existing obligation
causal (dolocausante), not
based on a
merely the incidental
contract.
(doloincidente), inducement
to the making of the Criminal intent
contract. Essential for Not necessary. Not necessary.
criminal liability to Fault or
After meticulously poring over the records, this Court finds that exist. negligence will
the fraud alleged by Spouses Viloria has not been satisfactorily suffice.
established as causal in nature to warrant the annulment of the Proof needed
subject contracts. In fact, Spouses Viloria failed to prove by Beyond Preponderance of Preponderance of
clear and convincing evidence that Mager’s statement was reasonable doubt evidence evidence
fraudulent. Specifically, Spouses Viloria failed to prove that (a) Existence of pre-existing contractual obligation
there were indeed available seats at Amtrak for a trip to New
None None Yes
Jersey on August 13, 1997 at the time they spoke with Mager
Defence of “Good father of a family”
on July 21, 1997; (b) Mager knew about this; and (c) that she
purposely informed them otherwise. Not available if Complete and Not a complete
the employee is proper defence. defence in the
insolvent, the selection and
Negligence employer is supervision of
subsidiarily liable. employees but
Article 1173. The fault or negligence of the obligor consists in can mitigate
the omission of that diligence which is required by the nature liability for
of the obligation and corresponds with the circumstances of damages.
the persons, of the time and of the place. When negligence Presumption of negligence
shows bad faith, the provisions of articles 1171 and 2201, Innocence of the No presumption There is
paragraph 2, shall apply. accused is of negligence. presumption of
presumed until negligence as long
If the law or contract does not state the diligence which is to the contrary is Injured party must as it can be
be observed in the performance, that which is expected of a proven. prove the proved that there
good father of a family shall be required. negligence of the is was a breach of
defendant contract.
Nature of right violated
o It is the failure to observe for the protection of the interests Public right Private right Private right
of another person the degree of care, precaution and
vigilance, which the circumstances justly demand, whereby
such other person suffers injury. Quasi-delict
o Negligence is the omission to do something which a
reasonable man, guided by those considerations which Art. 2176. Whoever by act or omission causes damage to
ordinarily regulate the conduct of human affairs, would do, another, there being fault or negligence, is obliged to pay for

JD-2 AUF-SOL MIDTERMS 7

 TORTS AND DAMAGES

the damage done. Such fault or negligence, if there is no pre 5. Alternative course of action
existing contractual relation between the parties, is called a o If the alternative presented to the actor is too
quasi-delict and is governed by the provisions of this Chapter costly, the harm that may result may still be
considered unforeseeable to a reasonable man.
More so if there is no alternative thereto.
o Concept under 2176 is broad; it includes injuries to persons 6. Social value or utility of activity
and damage to property. o Any act subjecting an innocent person to
unnecessary risk is a negligent act if the risk
Requisites (CARD)
outweighs the advantage accruing to the actor
1. No pre-existing Contractual relation between the and even to the innocent person himself.
parties. 7. Person exposed to the risk
2. Act or omission constituting fault or negligence o The character of the person exposed to the risk is
3. Causal relation between the damage and the act or also a circumstance which should be considered
omission. in determining negligence. Consistent with this
4. Damage caused by the said act or omission rule, a higher degree of diligence is required if
the person involved is a child. Even if a trespasser
N.B. An action for quasi-delict may still be maintained even if because entry of a child in a vacant lot may be
there is a pre-existing contractual relationship between the foreseeable.
parties, provided, that all the requisites are present and the
existence of the contract are merely incidental. G.R. No. L-4977
March 22, 1910
Test of negligence DAVID TAYLOR, plaintiff-appellee,
vs.
1. Did the defendant in doing the alleged negligent act use the THE MANILA ELECTRIC RAILROAD AND LIGHT
reasonable care and caution which an ordinarily prudent COMPANY, defendant-appellant.
person would have used in the same situation? If not then
he is guilty of negligence. Facts:
2. Could a prudent man, in the case under consideration, o David Taylor was a 15 year old boy who spent time as a
cabin boy at sea; he was also able to learn some
foresee harm as a result of the course pursued? If so, it was
principles of mechanical engineering and mechanical
the duty of the actor to take precautions to guard against
drawing from his dad’s office (his dad was a mechanical
harm.
engineer); he was also employed as a mechanical
draftsman earning P2.50 a day – all said, Taylor was
Circumstances to consider:
more mature than the average boy of his age, and
1. Time having considerable aptitude and training in mechanics.
o One day in 1905, he and another boy entered into the
o The time of the day may affect the diligence
premises of Manila Electric power plant where they
required of the actor. More prudence is required
found 20-30 blasting caps which they took home. In an
when driving at night. effort to explode the said caps, Taylor experimented
2. Place until he succeeded in opening the caps and then he
o The place of the incident is also material. A man lighted it using a match which resulted to the explosion
who should have occasion to discharge a gun on of the caps causing severe injuries to his companion and
an open and extensive marsh, or in a forest to Taylor losing one eye.
would be required to use less circumspection and o Taylor with the help of his father, sued Manila Electric
care, than if he were to do the same thing in an alleging that because the company left the caps exposed
inhabited town, village, or city. to children, they are liable for damages due to the
3. Emergency company’s negligence.
o Emergency rule or sudden peril doctrine –
Issue: WON Manila Electric is liable for damages.
General rule: Adopted by this Court in Gan vs. Court of Appeals,
an individual who suddenly finds himself in a situation of danger Held: No.
and is required to act without much time to consider the best
Ratio: The SC reiterated the elements of quasi delict as
means that may be adopted to avoid the impending danger is not
follows:
guilty of negligence if he fails to undertake what subsequently and
(1) Damages to the plaintiff.
upon reflection may appear to be a better solution. (2) Negligence by act or omission of which defendant
personally, or some person for whose acts it must respond,
Exception: Unless the emergency was brought by his own was guilty.
negligence. (3) The connection of cause and effect between the
negligence and the damage.
4. Gravity of harm to be avoided
In the case at bar, it is true that Manila Electric has been
o Even if the odds that an injury will result are not negligent in disposing off the caps which they used for the
high, harm may still be considered foreseeable if power plant, and that said caps caused damages to Taylor.
the gravity of the harm to be avoided is great.

JD-2 AUF-SOL MIDTERMS 8

 TORTS AND DAMAGES

However, the causal connection between the company’s o After the burial of the daughter, Criselda demanded
negligence and the injuries sustained by Taylor is absent. upon Jarco Marketing the reimbursement of the
hospitalization, medical bills and wake and funeral
It is in fact the direct acts of Taylor which led to the explosion expenses. Jarco refused to pay and denied any liability
of the caps as he even, in various experiments and in multiple for the injuries and death of Zhieneth. They claimed that
attempts, tried to explode the caps. It is from said acts that Criselda was negligent in exercising care and diligence
led to the explosion and hence the injuries. over her daughter by allowing her to freely roam around
in a store filled with glassware and appliances. Also, the
Taylor at the time of the accident was well-grown youth of 15, counter was allegedly made of sturdy wood with a
more mature both mentally and physically than the average strong support and could not have collapsed if Zhieneth
boy of his age; he had been to sea as a cabin boy; was able to did not climb on it.
earn P2.50 a day as a mechanical draftsman thirty days after
the injury was incurred; and the record discloses throughout RTC ---- Ruled in favor of Jarco Marketing
that he was exceptionally well qualified to take care of CA ---- Ruled in favor Criselda
himself. The evidence of record leaves no room for doubt that
he knew well the explosive character of the cap with which he Issue: Whether or not the death of Zhieneth was
was amusing himself with. The series of experiments made by attributable to negligence
him in his attempt to produce an explosion admit of no other
explanation. His attempt to discharge the cap by the use of Held: Yes, Zhieneth’s death could only be attributable to
electricity, followed by his efforts to explode it with a stone or negligence
a hammer, and the final success of his endeavours brought
about by the applications of a match to the contents of the Ratio: We quote the testimony of Gerardo Gonzales who
cap, show clearly that he knew what he was doing. Nor can was at the scene of the incident and accompanied CRISELDA
there be any reasonable doubt that he had reason to and ZHIENETH to the hospital:
anticipate that the explosion might be dangerous.
Q While at the Makati Medical Center, did you hear or notice
We are satisfied that the plaintiff in this case had sufficient anything while the child was being treated?
capacity and understanding to be sensible of the danger to A At the emergency room we were all surrounding the child.
which he exposed himself when he put the match to the And when the doctor asked the child "what did you do," the
contents of the cap; that he was sui juris in the sense that his child said "nothing, I did not come near the counter and the
age and his experience qualified him to understand and counter just fell on me."
appreciate the necessity for the exercise of that degree of
caution which would have avoided the injury which resulted Q (COURT TO ATTY. BELTRAN)
from his own deliberate act; and that the injury incurred by You want the words in Tagalog to be translated?
him must be held to have been the direct and immediate ATTY. BELTRAN
result of his own willful and reckless act, so that while it may Yes, your Honor.
be true that these injuries would not have been incurred but
for the negligence act of the defendant in leaving the caps COURT
exposed on its premises, nevertheless plaintiff's own act was Granted. Intercalate "walapo, hindi po ako lumapit doon.
the proximate and principal cause of the accident which Basta bumagsak."
inflicted the injury.
Let the judgment be entered in favour of the defendant for This testimony of Gonzales pertaining to ZHIENETH's
the costs in first instance and the complaint dismissed without statement formed (and should be admitted as) part of the res
day. So ordered. gestae under Section 42, Rule 130 of the Rules of Court, thus:

Part of res gestae. Statements made by

First Division a person while a startling occurrence is
Jarco Marketing v. CA taking place or immediately prior or
GR No. 129792 subsequent thereto with respect to the
December 21, 1999 circumstances thereof, may be given in
evidence as part of the res gestae. So,
Davide, Jr., J: also, statements accompanying an
equivocal act material to the issue, and
Facts: giving it a legal significance, may be
received as part of the res gestae.
o Criselda and Zhieneth were at the 2nd floor of Syvel’s
Department Store (owned by JarcoMrktg). The former It is axiomatic that matters relating to declarations of pain or
was signing her credit card slip when a counter fell upon suffering and statements made to a physician are generally
her daughter Zhieneth and pinner the latter to the considered declarations and admissions. All that is required
ground. She was immediately rushed to Makati Medical for their admissibility as part of the res gestae is that they be
Center where she was operated. 14 days later, her frail made or uttered under the influence of a startling event
six year old frame was not able to survive the injuries. before the declarant had the time to think and concoct a
She died. falsehood as witnessed by the person who testified in court.
Under the circumstances thus described, it is unthinkable for
ZHIENETH, a child of such tender age and in extreme pain, to

JD-2 AUF-SOL MIDTERMS 9

 TORTS AND DAMAGES

have lied to a doctor whom she trusted with her life. We o Soon after, male nurse Armando Rule came to render
therefore accord credence to Gonzales' testimony on the assistance, followed by sanitary inspector Iluminado
matter, i.e., ZHIENETH performed no act that facilitated her Vicente who, after being called by phone from the clinic
tragic death. Sadly, petitioners did, through their negligence by one of the security guards, boarded a jeep carrying
or omission to secure or make stable the counter's base. with him the resuscitator and a medicine kit, and upon
arriving he injected the boy with camphorated oil. After
Even if we attribute contributory negligence to ZHIENETH and the injection, Vicente left on a jeep in order to fetch Dr.
assume that she climbed over the counter, no injury should Ayuyao from the University of the Philippines.
have occurred if we accept petitioners' theory that the Meanwhile, Abaño continued the artificial manual
counter was stable and sturdy. For if that was the truth, a frail respiration, and when this failed to revive him, they
six-year old could not have caused the counter to collapse. applied the resuscitator until the two oxygen tanks were
The physical analysis of the counter by both the trial court and exhausted.
Court of Appeals and a scrutiny of the evidence on record o Investigation was concluded and the cause of death is
reveal otherwise, i.e., it was not durable after all. Shaped like asphyxia by submersion in water.
an inverted "L," the counter was heavy, huge, and its top o The parents of Ong bring this action for damages against
laden with formica. It protruded towards the customer Metropolitan, alleging negligence on the selection and
waiting area and its base was not secured. supervision of its employees and if not negligent, they
had the last clear chance to revive Ong.
o It is to be noted that Metropolitan had complete safety
Additional: measures in place: they had a male nurse, six lifeguards,
ring buoys, toy roof, towing line, saving kit and a
An accident pertains to an unforeseen event in which no fault resuscitator. There is also a sanitary inspector who is in
or negligence attaches to the defendant. It is "a fortuitous charge of a clinic established for the benefit of the
circumstance, event or happening; an event happening patrons. Defendant has also on display in a conspicuous
without any human agency, or if happening wholly or partly place certain rules and regulations governing the use of
through human agency, an event which under the the pools, one of which prohibits the swimming in the
circumstances is unusual or unexpected by the person to pool alone or without any attendant. Although
whom it happens." defendant does not maintain a full- time physician in the
swimming pool compound, it has however a nurse and a
On the other hand, negligence is the omission to do sanitary inspector ready to administer injections or
something which a reasonable man, guided by those operate the oxygen resuscitator if the need should arise
considerations which ordinarily regulate the conduct of
human affairs, would do, or the doing of something which a Issues: (1) WON Metropolitan is liable to the Ongs for its
prudent and reasonable man would not do. Negligence is negligence,
"the failure to observe, for the protection of the interest of
another person, that degree of care, precaution and vigilance Held: (1) No. Metropolitan is not negligent
which the circumstances justly demand, whereby such other
person suffers injury." Ratio: Metropolitan has taken all necessary precautions to
avoid danger to the lives of its patrons. It has been shown that
the swimming pools of appellee are provided with a ring buoy,
toy roof, towing line, oxygen resuscitator and a first aid
MR. AND MRS. AMADOR C. ONG medicine kit. The bottom of the pools is painted with black
vs colors so as to insure clear visibility. There is on display in a
conspicuous place within the area certain rules and
METROPLOITAN WATER DISTRICT GR. No. L –
regulations governing the use of the pools. Appellee employs
7664, August 29, 1958
six lifeguards who are all trained as they had taken a course
for that purpose and were issued certificates of proficiency.
BAUTISTA ANGELO, J: These lifeguards work on schedule prepared by their chief and
arranged in such a way as to have two guards at a time on
Facts: duty to look after the safety of the bathers. There is a male
nurse and a sanitary inspector with a clinic provided with
o Metropolitan owns 3 swimming pools at its filters in oxygen resuscitator. And there are security guards who are
Balara, Quezon City available always in case of emergency.
o It charges the public a certain fee if such wanted to use The record also shows that when the body of minor Ong was
its pools retrieved from the bottom of the pool, the employees of
o Dominador Ong, 14 years of age, son of petitioners, appellee did everything possible to bring him back to life.
went to the pools along with his 2 brothers. When they found that the pulse of the boy was abnormal, the
o He stayed in the shallow pool, but then he told his inspector immediately injected him with camphorated oil.
brothers that he would get something to drink. His When the manual artificial respiration proved ineffective they
brothers left him and went to the Deep pool. applied the oxygen resuscitator until its contents were
o Around 4pm that day, a bather reported that one person exhausted. And while all these efforts were being made, they
was swimming to long under water. sent for Dr. Ayuyao from the University of the Philippines who
o Upon hearing this, the lifeguard on duty dove into the however came late because upon examining the body found
pool to retrieve Ong’s lifeless body. Applying first aid, him to be already dead.
the lifeguard tried to revive the boy.

JD-2 AUF-SOL MIDTERMS 10

 TORTS AND DAMAGES

Issue: (2) WON the last clear chance doctrine may be invoked the incident and he is not judged based on his
in this case knowledge or experience after the event.

Held: All of the foregoing shows that appellee has done what However, there are matters which a prudent man
is humanly possible under the circumstances to restore life to is conclusively presumed to know based on actual
minor Ong and for that reason it is unfair to hold it liable for knowledge and experience. For instance, where a
his death The Last Clear Chance Doctrine is inapplicable in this particular act is followed from past acts or
case. omissions, one is charged with notice that a
similar act or omission, may produce a similar
Ratio: it is not known how Dominador came into the big pool
result.
and it being apparent that he went there without any
companion in violation of one of the regulations of MWD
regarding the use of pools, and it appearing that the lifeguard PLDT Company, Inc. vs. Court of Appeals
responded to the call for help as soon as his attention was (No. 57079, September 29, 1989), the
called and all efforts at the disposal of MWD had been out plaintiff was not able to recover from the
into play in order to bring Dominador back to life. defendant telephone company even if he was
injured because of the excavation of the
LAST CLEAR CHANCE, DEFINED company in the street. He sustained such
injuries when his jeep ran over a mound of
earth and fell into an open trench dug by the
The negligence of a claimant does not preclude a
telephone company for its underground
recovery for the negligence of defendant where it
conduit system. Although there were no
appears that the latter by exercising reasonable care and
warning signs in the area, the plaintiff was
prudence, might have avoided injurious consequences not allowed to recover because he had
to claimant notwithstanding his negligence. knowledge of the presence and location of
OR the excavations, having passed on the same
street almost everyday.
A person who has the last clear chance or opportunity
of avoiding an accident, notwithstanding the negligent
acts of his opponent or the negligence of a third person a. Children
which is imputed to his opponent, is considered in law
solely responsible for the consequences of the accident. [Republic Act No. 9344] JUVENILE JUSTICE AND
WELFARE ACT
IN A DECIDED CASE:
O’Mally vs Eagan, 77 ALR 582, 43 Wyo, 223, 350, 2 P2d (a) Definition of child in conflict with the law (Sec. 4, RA
1063 The last clear chance doctrine can never apply 9344
where the party charged is required to act
instantaneously, and if the injury cannot be avoided by Child in conflict with the law – a child who is alleged as,
the application of all means at hand after the peril is or accused of, or adjudged as, having committed an offense
should have been discovered; at least in cases in which under Philippine laws
any previous negligence of the party charged cannot be
said to have contributed to the injury. Child – a person under 18 years

(b) Exemption from criminal liability

Standard of conduct
1. Child 15 years of age or under at the time of the
1) Good father of a family commission of the offense = EXEMPT from criminal
liability = However, the child shall be subjected to an
intervention program. Regardless of whether or not he
What should be determined in negligence cases is what is
acted with discernment (per Sec. 20 of RA 9344)
foreseeable to a good father of a family.
2. Child above 15 years but below 18 years of age =
The standard of conduct used in the Philippines is that of EXEMPT from criminal liability and subjected to
paterfamilias in Roman law or that who is referred to in intervention program = UNLESS the child acted with
Article 1173 of the Civil Code (in rel. Art. 2178) as a good discernment, in which case, such child shall be subjected
father of a family. to the appropriate proceedings in accordance with RA
9344
A good father of a family is likewise referred to as the
reasonable man, man of ordinary intelligence and prudence, Exemption from criminal liability herein established does
or ordinary reasonable prudent man. not include exemption from civil liability, which shall be
enforced in accordance with existing laws. (Sec. 6, RA
9344)
Attributes of a good father of a family
o Knowledge and experience of the actor - The
(c) Juvenile justice and welfare system
prudent man is expected to act according to the
circumstances that appear to him at the time of

JD-2 AUF-SOL MIDTERMS 11

 TORTS AND DAMAGES

RA 9344, Sec. 4(m). ―Juvenile Justice and Welfare of conducting electricity used in lighting the City of
System‖ refers to a system dealing with children at risk Manila and its suburbs.
and children in conflict with the law, which provides o A person reported the same to the defendant at 2.25
child-appropriate proceedings, including programs and
p.m. and received answer from the station to the effect
services for prevention, diversion, rehabilitation, re-
integration and aftercare to ensure their normal growth that they would send an inspector. Alberto del Rosario,
and development. age of 9 years, with two other boys, all members of the
second grade in the public school were dismissed at
4pm. These other two boys were Jose Salvador and
The action of the child will not necessarily be judged Saturnino Endrina.
according to the standard of an ordinary adult. o Subsequently, when the boys saw the parted wire on the
street, Alberto, although warned by Jose Salvador, a son
Taylor vs. Manila Electric Railroad and Light Co., 16 Phil.
of an electrical engineer, touched the wire. He
8 [1910] The care and caution required of a child is
according to his maturity and capacity only and this is to immediately fell face downwards. The end of the wire
be determined in each case by the circumstances of the remained in contact with his body which fell near the
case. If a minor is mature enough to understand and post.
appreciate the nature and consequences of his actions, o Accordingly, he was taken to St. Luke's Hospital but was
he will be considered negligent if he fails to exercise due immediately pronounced dead. Thus, Julian del Rosario
care and precaution in the commission of such acts. instituted this action for the purpose of recovering
damages from the Manila Electric Company for the
death of his son, Alberto del Rosario.
The doctrine in Jarco Marketing Corporation et al. v.
Court of Appeals (ibid.) therefore modifies the rule laid
down in Taylor v. Manila Electric Railroad and Light Co. Issue: WON the Manila Electric Company was negligent and
(supra.). If the child is under nine years, it is no longer hence can be held liable for damages for the death of Alberto
necessary to determine his maturity and capacity Del Rosario, son of Julian del Rosario
because he is conclusively presumed to be incapable of
negligence. If the child is above nine to fifteen, he is Held: Yes.
disputably presumed to be incapable of negligence but
the opposing party can prove that the child is at such Ratio: The Court is of the opinion that the presumption of
stage of maturity and capacity that he can already negligence on the part of the company from the breakage of
determine what a reasonable man would do under the this wire has not been overcome, and the defendant is in our
same circumstances. opinion responsible for the accident. Furthermore, when
notice was received at the Malabon station at 2.25 p. m.,
somebody should have been dispatched to the scene of the
trouble at once, or other measures taken to guard the point of
Liability without fault: a child under 15 years can still be
danger; but more than an hour and a half passed before
subsidiary liable with his property. (RPC, Article. 100)
anyone representing the company appeared on the scene.
Absence of negligence does not necessarily mean absence of
liability. (MAIN TOPIC) Issue 2: WON contributory negligence can
properly be imputed to the deceased
If the child is legally incapable of discernment, the parents or
any person exercising parental authority over him may still Held: No.
be liable if proper diligence in supervising the child was not
observed. The actor himself is liable up to the extent of his Ratio: It is doubtful whether contributory negligence can
properties. properly be imputed to the deceased, owing to his immature
years and the natural curiosity which a child would feel to do
G.R. No. L-35283 November 5, 1932 something out of the ordinary, and the mere fact that the
deceased ignored the caution of a companion of the age of 8
JULIAN DEL ROSARIO, plaintiff-appellant, years does not, in our opinion, alter the case. But even
vs. supposing that contributory negligence could in some
MANILA ELECTRIC COMPANY, defendant-appellee. measure be properly imputed to the deceased, — a
proposition upon which the members of the court do not all
Vicente Sotto for appellant. agree, — yet such negligence would not be wholly fatal to the
Ross, Lawrence & Selph and Antonio T. Carrascoso, Jr. for right of action in this case, not having been the determining
appellee. cause of the accident.

NOTE: As provided in this case, even supposing that

STREET, J.: contributory negligence could in some measure be properly
imputed to the deceased yet such negligence would not be
Facts: wholly fatal to the right of action in this case, not having been
o Shortly after 2 o'clock on the afternoon of August 4, the determining cause of the accident. Accordingly, mere
1930, trouble developed in a wire used by the Manila contributory negligence, if not the proximate
Electric Company on Dimas-Alang Street for the purpose

JD-2 AUF-SOL MIDTERMS 12

 TORTS AND DAMAGES

cause(determining cause) of the injury, would not totally Held: YES. The petition GRANTED. Aquino, the teacher, to pay
exonerate the defendant. petitioners the following:
(1) Indemnity for the death of Child Ylarde P30, 000.00
(2) Exemplary damages 10,000.00
G.R. No. L-33722 July 29, 1988 (3) Moral damages 20,000.00

Soriano, the principal, not held liable.

FEDERICO YLARDE and ADELAIDA DORONIO petitioners,
vs. Ratio:
EDGARDO AQUINO, MAURO SORIANO and COURT OF
APPEALS, respondents

Facts:
o Soriano- School principal Art. 2176. Whoever by act or omission causes
Aquino and Banez- teachers in the school. damage to another, there being fault or negligence,
Novelito Ylarde- student [decease is obliged to pay for the damage done. Such fault or
negligence, if there is no pre- existing contractual
o Gabaldon Primary School, an academic school, was relation between the parties, is called a quasi-delict
littered with several huge concrete blocks [around one and is governed by the provisions of this Chapter.
ton each] which were remnants of an old school shop TEST OF NEGLIGENCE:
which was destroyed in WWII.
DUTY- A teacher who stands in loco parentis to his pupils must
o Banez [teacher] realized that these stones were huge make sure that the children are protected from all harm in his
hazards so he started burying them, and he was able to company.
bury 10 blocks by himself.
BREACH- Yes
o A fellow teacher Aquino decided to help, so he gathered Aquino acted with fault and gross negligence when he:
18 students and ordered them to dig a hole where a 1-ton (1) Failed to avail himself of services of adult manual laborers
stone could be buried. (2) Required the children to remain inside the pit even after
they had finished digging, knowing that the huge block was
o The following day, he called 4 of these students, one of lying nearby and could be easily pushed or kicked aside by any
which is Ylarde, to continue digging. When the hole was pupil who by chance may go to the perilous area
1m 40cm deep, Aquino alone continued digging while the (3) Ordered them to level the soil around the excavation when
students remained inside the pit, throwing out loose soil. it was so apparent that the huge stone was at the brink of falling
They got out of the hole when the depth was right. (4) Went to a place where he would not be able to check on the
children's safety
o Aquino left the children to level the loose soil around the (5) Left the children close to the excavation, an obviously
hole because he went to see Banez (who was 30 meters attractive nuisance.
away) to borrow the key to the school workroom to get a
rope. He allegedly told the children not to touch the PROXIMATE CAUSE: Negligent act of Aquino in leaving his
stone. pupils in such a dangerous site has a direct causal connection
to the death of the child Ylarde; it was but natural for the
o After Aquino left, the kids jumped inside the pit, Ylarde children to play around. The child Ylarde would not have died
included. One of them jumped on top of the block, were it not for the unsafe situation created by Aquino.
causing it to slide downwards. Two were able to get out
but Ylarde wasn’t able to do so, and so the block pinned The excavation should not be placed in the category of school
him to the wall in a standing position. He sustained gardening, planting trees, and the like as these undertakings do
injuries and three days later, Ylarde died. not expose the children to any risk that could result in death or
physical injuries.
o His parents filed a suit for damages against Aquino and
Soriano, the principal, but the RTC dismissed the A reasonably prudent person would have foreseen that
complaint for the following reasons: bringing children to an excavation site, and more so, leaving
- Digging done is in line with Work Education subject them there all by themselves, may result in an accident. An
- Aquino exercised the utmost diligence of a very cautious ordinarily careful human being would not assume that a simple
person warning "not to touch the stone" is sufficient to cast away all
- Ylarde’s death was due to his own reckless imprudence the serious danger that a huge concrete block adjacent to an
excavation would present to the children.
CA affirmed RTC. Petitioners base their action INJURY: Death of the child, Ylarde.
against Aquino [teacher] on NCC 2176 for his alleged
negligence that caused Ylarde’s death, while the
action against the principal was based on NCC 2180.
Art. 2180. Lastly, teachers or heads of
Issue: WON Aquino and Soriano should be held liable for establishments of arts and trades shall be liable for
negligence damages caused by their pupils and students or
apprentices, so long as they remain in their custody.

JD-2 AUF-SOL MIDTERMS 13

 TORTS AND DAMAGES

As regards the principal, we hold that he cannot be made

responsible for the death of the child Ylarde, he being the head o Bonifacio was charged in the trial court with homicide
of an academic school and not a school of arts and trades. committed with reckless negligence and he was convicted
of homicide committed with simple negligence.
Soriano did not give any instruction regarding the digging.
Issue: Whether or not Bonifacio is liable for the death of
Castillo.
General Rule: Teachers shall be liable for the acts of
their students. Held: NO.

Exception: Where the school is technical in nature, Ratio: There is no obligation on an engine driver to stop, or
in which case it is the head thereof who shall be even to slow down his engine when he sees an adult pedestrian
answerable standing or walking on or near the track, unless there is
something in the appearance or conduct of the person on foot
b. Persons with disability which would cause a prudent man to anticipate the possibility
that such person could not, or would not avoid the possibility
Weaknesses of a person will not be an excuse in of danger by stepping aside. Ordinarily, all that may properly be
negligence cases. required of an engine driver under such circumstances is that
he give warning of his approach, by blowing his whistle or ringing his bell until
General rule: A weak, clumsy or accident prone person he is assured that the attention of the pedestrian has been
must come up to the standard of a reasonable man, attracted to the oncoming train.
otherwise, he will be considered negligent. There was nothing in the appearance or conduct of the victim
of the accident in the cast at bar which would have warned the
Exception: If the defect is not a mere weakness but accused engine driver that the man walking along the side of
the tract was a deaf-mute, and that despite the blowing of the
one amounting to real disability. The standard of
whistle and the noise of the engine he was unconscious of his
conduct is that of a reasonable person under like
danger. It was not until the pedestrian attempted to cross the
disability. track, just in front of the train, that the accused had any reason
to believe that his warning signals had not been heard, and by
The Constitution recognizes the rights of disabled that time it was too late to avoid the accident. Under all the
persons. (Section 13, Article XIII, 1987 Constitution) circumstances, we are satisfied that the accused was without
fault; and that the accident must be attributed wholly to the
A person who is suffering from physical disability must, reckless negligence of the deaf-mute, in walking on the track
however, refrain from activities which a reasonable without taking the necessary precautions to avoid danger from
person suffering from such disability would not a train approaching him from behind.
undertake. Obviously, a blind person should refrain Bonifacio was without fault; and that the accident must
from driving altogether. be attributed wholly to the reckless negligence of the deaf-
mute, in walking on the track without taking the necessary
precautions to avoid danger from a train approaching him
from behind.
G.R. No. L-10563 March 2, 1916

THE UNITED STATES, plaintiff-appellee, c. Intoxication

vs.
ANTONIO BONIFACIO, defendant-appellant.
General rule: Mere intoxication is not negligence, nor
CARSON, J.:
does the mere fact of intoxication establish want of
Facts: ordinary care. It is but a circumstance to be considered
o Bonifacio was an engineer and was conducting the heavy with the other evidence tending to prove negligence.
freight train one morning in Batangas. The train had just
rounded a curve when Bonifacio saw a man (EligioCastillo) If one’s conduct is characterized by a proper degree of
care and prudence, it is immaterial whether he is
walking along the railroad track. The former immediately
drunk or sober.
blew his whistle twice; unknown to him, Castillo was
a deaf-mute. Noticing that Castillo did not step aside from
Intoxication is of little consequence in negligence cases
the track, Bonifacio tried to slow down the engine, but
if it was not shown that such drunkenness contributed
did not succeed in stopping in time to avoid running down to the accident or that the accident would have been
the pedestrian, who, about that time, turned and avoided had he been sober.
attempted to cross the track.
Exception: Driving under the influence of alcohol is a
o He was travelling at the rate of 35 kilometers an hour, the violation of traffic regulations. Under Article 2185 of
maximum speed permitted under the railroad regulations the Civil Code, it is presumed that a person driving a
for freight trains. motor vehicle has been negligent if at the time of the
mishap, he was violating any traffic regulation.

JD-2 AUF-SOL MIDTERMS 14

 TORTS AND DAMAGES

Wright v. Meralco d. Insanity

G.R. No. L-6670, October 1, 1914
Moreland, J. Under the Revised Penal Code, an insane person is
exempt from criminal liability. But may not be
Facts: exempted from civil liability.
o The defendant is a corporation engaged in operating an
electric street railway in the city of Manila and its suburbs, Under the Civil Code. The insanity of a person does not
including the municipality of Caloocan. The plaintiff's excuse him or his guardian from liability based on
residence in Caloocan fronts on the street along which
quasi-delict. (Articles 2180 and 2182, Civil Code).
defendant's tracks run, so that to enter his premises from
the street plaintiff is obliged to cross defendant's tracks.
This means that the act or omission of the person
o One night the plaintiff drove home in a calesa and in suffering from mental defect will be judged using the
crossing the tracks to enter his premises the horse standard test of a reasonable man.
stumbled, leaped forward, and fell, causing the vehicle
with the rails, resulting in a sudden stop, threw plaintiff The bases for holding a permanently insane person
from the vehicle and caused the injuries complained of. liable for his tort:
Not only the rails were above-ground, but that the ties o Where one of two innocent persons must
upon which the rails rested projected from one-third to suffer a loss it should be borne by the one
one-half of their depth out of the ground thus the tracks who occasioned it;
are above the ground which is 5 to 6 inches above the o To induce those interested in the estate of
level of the street.
the insane person (if he has one) to restrain
and control him;
o It was admitted by the defendant the it was negligent in
o The fear that an insanity defense would
maintaining the tracks, but it was alleged that the plaintiff
is also negligent because he was intoxicated and that he lead to false claims of insanity to avoid
was unable to take care of himself and thus this was the liability.
proximate cause of the accident.
US V BAGGAY
Issue: Whether or not the plaintiff is negligent G.R 6706 ; 20 PHIL 142
September 1, 1911
Held: No.
NATURE
Ratio: Mere intoxication establish a want of ordinary care. It is Appeal by the defendant from the judgment rendered on April
but a circumstance to be considered with the other evidence 28, 1910, whereby he was declared exempt from criminal
tending to prove negligence. It is the general rule that it is liability but was obliged to indemnify the heirs if the murdered
immaterial whether a man is drunk or sober if no want of woman, Bil-liingan, in the sum of P1,000, to pay the costs in the
ordinary care or prudence can be imputed to him, and no case and to be confined in an institution for the insane until
greater degree of care is required than by a sober one. further order of the court.

The testimony of Doctor Kneedler who was the physician who Facts:
attended him after an hour of the accident as to the negligence o About the 4th of October, 1909, several persons were
of the plaintiff was referred by the Court. “If the defendant or assembled in the defendant's house in the township of
its employees were negligent by reason of having left the rails Penarrubia, Abra, Province of Ilocos Sur, for the purpose
and a part of the ties uncovered in a street where there is a of holding a song service called "buni" according to the
large amount of travel, the plaintiff was no less negligent, he Tinguian custom, when he, the non-Christian Baggay,
not having abstained from his custom of taking more wine than without provocation suddenly attacked the woman Bil-
he could carry without disturbing his judgment and his self- liingan with a bolo, inflicting a serious wound on her head
control, he knowing that he had to drive a horse and wagon and from which she expired immediately; and with the same
to cross railroad tracks which were to a certain extent bolo he like wise inflicted various wounds on the women
dangerous by reason of the rails being elevated above the level named Calabayan, Agueng, Quisamay, Calapini, and on
of the street. If the plaintiff had been prudent on the night in his own mother, named Dioalan.
question and had not attempted to drive his conveyance while
in a drunken condition, he would certainly have avoided the o For this reason the provincial fiscal filed a complaint in the
damages which he received, although the company, on its part, court of Ilocos Sur, dated February 15, charging the non-
was negligent in maintaining its tracks in a bad condition for Christian Baggay, jr., with murder, because of the violent
travel” death of the woman Bil-liingan. This cause was instituted
separately from the other, No. 1109, for lesiones. After
It is clear from the facts that the plaintiff is not negligent. It is trial and proof that the defendant was suffering from
impossible to say that a sober man would not have fallen from mental aberration, the judge on April 28 rendered the
the vehicle under the conditions described. judgment cited above, whereupon the defendant's
counsel appealed to this court.

Issue: WON an insane person, exempt from criminal liability

can still be civilly liable?

JD-2 AUF-SOL MIDTERMS 15

 TORTS AND DAMAGES

Held: Yes Those who undertake any work calling for special skills are
required not only to exercise reasonable care in what they
Ratio: Civil liability accompanies criminal liability, because do but also possess a standard minimum of special
every person liable criminally for a crime or misdemeanor is knowledge and ability.
also liable for reparation of damage and for indemnification of
the harm done, but there may be civil liability because of acts
ordinarily punishable, although the law has declared their G.R. No. L-32611 November 3, 1930
perpetrators exempt from criminal liability. CULION ICE, FISH AND ELECTRIC CO., INC., plaintiff-
vs.
Reasoning/Some provisions mentioned PHILIPPINE MOTORS CORPORATION, defendant

 Such is the case of a lunatic or insane person who, in spite Facts:

of his irresponsibility on account of the deplorable The plaintiff and defendant are domestic corporations;
condition of his deranged mind, is still reasonably and and at the time of the incident, H.D. Cranston was the
justly liable with his property for the consequences of his representative of the plaintiff in the City of Manila
acts, even though they be performed unwittingly, for the o Plaintiff was the registered owner of the motor
reason that his fellows ought not to suffer for the schooner Gwendoline (used for fishing)
disastrous results of his harmful acts more than is In January 1925, Cranston decided to have the engine on
necessary, in spite of his unfortunate condition. Law and the Gwendoline changed from a gasoline consumer to a
society are under obligation to protect him during his crude oil burner
illness and so when he is declared to be liable with his o He made known his desire to McLeod & Co. and was
property for reparation and indemnification, he is still told by Mc Kellar to inquire at the Philippine Motors
entitled to the benefit of what is necessary for his decent Corporations.
maintenance, but this protection does not exclude Cranston went to the office of the Philippine Motors
liability for damage caused to those who may have the Corporation and talked to C.E. Quest, its manager who
misfortune to suffer the consequences of his acts. agreed to do the job.
 Article 17 of the Penal Code states: o The Philippine Motors Corporation was engaged in
Every person criminally liable for a crime or misdemeanor business as an automobile agency, but under its
is also civilly liable. charter, it had authority to deal in all sorts of
 Article 18 of the same code says: machinery engines and motors, as well as to build,
The exemption from criminal liability declared in Nos. 1, operate, buy and sell the same and the equipment.
2, 3, 7, and 10 of article 8 does not include exemption Quest and Cranston visited the Gwendoline and upon
from civil liability, which shall be enforced, subject to the preliminary inspection of the engine, Quest came to the
following: conclusion that the principal thing necessary to
 In cases 1, 2, and 3, the persons who are civilly liable for accomplish the end in view was to install a new
acts committed by a lunatic or imbecile, or a person under carburetor, and a Zenith carburetor was chosen as the
9 years of age, or over this age and under 15, who has not one most adapted to the purpose.
acted with the exercise of judgment, are those who have o After this appliance had been installed, the engine
them under their authority, legal guardianship or power, was tried with gasoline as a fuel. The result of this
unless they prove that there was no blame or negligence experiment was satisfactory.
on their part. o The next problem was to introduce into the
 Should there be no person having them under his carburetor the baser fuel, consisting of a low grade
authority, legal guardian, or power, if such person be of oil mixed with distillate.
insolvent, the said lunatics, imbeciles, or minors shall In the course of the preliminary work upon the
answer with their own property, excepting that part carburetor, it was observed that the carburetor was
which is exempted for their support in accordance with flooding and that the gasoline, or other fuel, was trickling
the civil law. freely from the lower part to the carburetor to the floor.
The boat was taken out into the bay for a trial run. The
DISPOSITION Therefore, the judgment appealed from being in first part of the course was covered without any
accordance with law, affirmation thereof is proper, and it is untoward development, other than the fact that the
hereby affirmed, with costs against the appellant. engine stopped a few times.
5PM In the course of the trial, Quest remained outside
of the engine compartment and occupied himself with
2) Experts or persons with special skill making distillate, with a view to ascertaining what
proportion of the two elements would give best results in
An expert should exhibit the care and skill of one ordinarily the engine.
skilled in the particular field that he is in. 7:30PM  the engine stopped, and connection again had
to be made with the gasoline line to get a new start. After
When a person holds himself out as being competent to do this had been done the mechanic, or engineer, switched
things requiring professional skills, he will be held liable for to the tube connecting with the new mixture.
negligence if he fails to exhibit the care and skill of one A back fire occurred in the cylinder chamber which
caused a flame to shoot back into the carburetor, and
ordinarily skilled in the particular work which he attempted
instantly the carburetor and adjacent parts were covered
to do.
with a mass of flames, which the members of the crew
were unable to subdue.

JD-2 AUF-SOL MIDTERMS 16

 TORTS AND DAMAGES

The salvage from, the wreck, when sold brought only the 2nd –The Court of Appeals affirmed the decision of
sum of P150. The value of the boat before the accident the lower court
occured, as the court found, was P10,000. 3rd- Supreme Court reaffirmed the Court of Appelas
decision.
MAIN Issue: WON the incident was due to the negligence of
Phil. Motors as experts? Facts:
o On October 5, 1963, the Spouses Vistorino Cusi and Pilar
Held: YES Pobre attended a birthday party in Paranaque, Rizal. After
the party, they proceeded home on board their car (in
Ruling: particular Vauxhall car) driven by Mr Cusi. Upon reaching
 The loss of the boat was chargeable to the negligence and the railroad tracks, and (A) after finding the the level
lack of skill of Quest. crossing bar was raised and (B) seeing that there was NO
FLASHING RED LIGHT, and (C) hearing NO WHISTLE from
It must be remembered that when a person holds himself out any coming train, mr Cusi merely slackened his speed and
as being competent to do things requiring professional skill, proceeded to cross the tracks. At the same time, a train
he will be held liable for negligence if he fails to exhibit the of Philippine National Railways (PNR) bound for Lucena,
care and skill of one ordinarily skilled in the particular work Quezon Province traversed the crossing, resulting in a
which he attempts to do. collision between the two. The spouses suffered injuries
 The proof shows that Quest had ample experience in and sued PNR.
fixing the engines of automobiles and tractors, but it does
not appear that he was experienced in the doing of similar o However, PNR argued that the spouses Cusi are not
work on boats. entitled to damages since it is the gross negligence of Mr
 Quest did not use the skill that would have been exhibited Cusi which was the proximate cause of the collision. They
by one ordinarily expert in repairing gasoline engines on contend that had he made a full stop before traversing
boats - Negligence the crossing as required by Section 56 (a) of ACT 3992 OR
THE Motor Vehicle Law, then he could have seen and
The burning of the Gwendoline may be said to have resulted heard the approach of the train, and thus, there would
from accident, but this accident was in no sense an unavoidable have been no collision.
accident. It would not have occurred but for Quest's
carelessness or lack of skill.
 The test of liability is not whether the injury was Issues:
accidental in a sense, but whether Quest was free from 1. Whether or not the Philippine National
blame. Railways gross negligence was the proximate
cause of the collision
OTHER ISSUE RE: DEFENDANT AS BAILEE 2. Whether or not Mr Cusi committed acts of
 Quest was not in charge of the navigation of the boat on contributory negligence.
this trial run. 3. Whether or not PNR is liable for damages.
 As a rule, workmen who make repairs on a ship in its
owner's yard are not bailees, and their rights and Held for issue #1: Yes, PNR was grossly negligent.
liabilities are determined by the general rules of law
under their contract. Ratio The Court in laying down its decision cited Judge Cooley’s
 The true bailee acquires possession and as a definition and concept of negligence:
consequence, bailee is given a lien for his compensation.
o These ideas seem to be incompatible with the Negligence is “the failure to observe for the
situation now under consideration. protection of the interests of another person that
degree of(A) care,(B)precaution, and (C0 vigilance
SIDE ISSUE RE: ACTION SHOULD BE CONSIDERED AS SALE which the CIRCUMSTANCES JUSTLY DEMAND,
SINCE IT WAS INSTITUTED 2 YEARS AFTER THE ACCIDENT whereby such person suffers injury.”
AND AFTER QUEST CEASED TO BE A MANAGER
 The action was brought within the period limited by the The Court made a pronouncement that by such a test, there is
statute of limitations and the situation is not one where NO HARD and FAST RULE whereby such degree of care and
the defense of laches can be properly invoked. vigilance is measured, IT IS DEPENDENT UPON THE
CIRCUMSTANCES in which a person finds himself so situated.

3) Expected conduct All that the law requires is that it is always incumbent upon a
person to use that (1) care and (2) diligence expected of
VICTORINO CUSI and PILAR POBRE VS PHILIPPINE NATIONAL REASONABLE MEN under similar circumstances. Petition of
RAILWAYS Mrs Dulay was granted.
GR No L-29889 May 31, 1979 First Division
GUERRERO J.: Further, the Court stated that “where railroad company
maintains signallingdevice at a crossing to give warning of
FLOW OF THE CASE: approach of the train, failure of device to operate is evidence of
1st-The Trial Court decided in favor of Spouses negligence. The traveling public has right to rely on warning
Victorino Cusi and Pilar Pobre. devices installed in railroad crossings.

JD-2 AUF-SOL MIDTERMS 17

 TORTS AND DAMAGES

It noted that the act of PNR cannot be tolerated nor condone. Facts:
Said allowed the train to travel through the UNATTENDED
CROSSING with INOPERATIVE SIGNAL DEVICES. It also did not
o Plaintiff Ma. Lourdes Valenzuela was driving a blue
send any of its employees to operate said signal devices so as
Mitsubishi lancer from her restaurant at Marcos highway
to warn motorists of the approached of one of its trains. The
to her home at Palanza Street, Araneta Avenue.
failure of the warning devices created misunderstanding upon
o She was travelling along Aurora Blvd. with a companion,
the riding public thinking that it is safe to pass.
Cecilia Ramon, heading towards the direction of Manila.
Before reaching A. Lake Street.
There is a need for the PNR (A) to use reasonable care to keep
o She noticed something wrong with her tires; she
such devices in good condition and in working order, or (B) to
stopped at a lighted place where there were people, to
give notice that they are not operating, since failure to do the
verify whether she had a flat tire and to solicit help if
same will create misunderstanding which in turn will result in a
needed. Having been told by the people present that her
menace.
rear right tire was flat and that she cannot reach her
home in that car's condition, she parked along the
Held for issue #2: No.
sidewalk, about 1-1/2 feet away, put on her emergency
lights, alighted from the car, and went to the rear to
Ratio: The PNR FAILED TO ESTABLISHED that
open the trunk. She was standing at the left side of the
(1) its train driver blew his whistle to warn
rear of her car pointing to the tools to a man who will
motorists og his approach to compensate for
help her fix the tire when she was suddenly bumped by a
the absence of the warning signals, and
1987 Mitsubishi Lancer driven by defendant Richard Li
(2) that Mr Cusi instead of stopping or slackening
and registered in the name of defendant Alexander
his speed, proceeded with reckless speed and
Commercial, Inc.
regardless of possible or threatened danger.
o Because of the impact plaintiff was thrown against the
windshield of the car of the defendant, which was
Held for issue #3: Based from the ruling in issue # 1 and #2 the
destroyed, and then fell to the ground. She was pulled
Spouse Cusi are entitled to damages
out from under defendant's car. Plaintiff's left leg was
severed up to the middle of her thigh, with only some
skin and sucle connected to the rest of the body.
4) Emergency rule - or sudden peril doctrine o She was brought to the UERM Medical Memorial Center
where she was found to have a "traumatic amputation,
“Who can be wise, temperate, furious, loyal and neutral in leg, left up to distal thigh (above knee)". She was
that moment? No man” confined in the hospital for twenty (20) days and was
General rule: Adopted by this Court in Gan vs. Court of eventually fitted with an artificial leg. The expenses for
Appeals, an individual who suddenly finds himself in a the hospital confinement (P120,000.00) and the cost of
situation of danger and is required to act without much time the artificial leg (P27,000.00) were paid by defendants
to consider the best means that may be adopted to avoid from the car insurance.
the impending danger is not guilty of negligence if he fails to o Rogelio Rodriguez the owner-operator of an
undertake what subsequently and upon reflection may establishment located just across the scene of the
accident: Valenzuela’s car parked parallel and very near
appear to be a better solution.
the sidewalk and Li was driving on a very fast speed and
there was only a drizzle (NOT heavy rain)
Exception: Unless the emergency was brought by his own
negligence.
Issue: (1) WON Li was negligent, (2) WON Valenzuela
Reason: Courts have traditionally been compelled to exercised the standard reasonably dictated by the emergency
and could not be considered to have contributed to the
recognize that an actor who is confronted with an
unfortunate circumstances, (3) WON Alexander Commercial,
emergency is not to be held up to the standard of conduct
Inc. as Li's employer should be held liable, (4) WON the
normally applied to an individual who is in no such situation. awarding of damages is proper

A person who is confronted with a sudden emergency may

Held: (1) Yes, (2) Yes, (3) Yes, (4) Yes
be left with no time for thought and must make a speedy
decision largely upon impulse or instinct.
Ratio:
(1) Obviously in the case at bench, the only negligence
G.R. No. 115024 February 7, 1996
ascribable was the negligence of Li on the night of the
accident. The circumstances established by the evidence
MA. LOURDES VALENZUELA, petitioner, adduced in the court below plainly demonstrate that Li
vs. was grossly negligent in driving his Mitsubishi Lancer. It
COURT OF APPEALS, RICHARD LI and ALEXANDER bears emphasis that he was driving at a fast speed at
COMMERCIAL, INC., respondents. about 2:00 A.M. after a heavy downpour had settled into
a drizzle rendering the street slippery. There is ample
testimonial evidence on record to show that he was
This is an action to recover damages based on quasi-delict,
for serious physical injuries sustained in a vehicular accident. under the influence of liquor. Under these conditions,
his chances of effectively dealing with changing
conditions on the road were significantly lessened.

JD-2 AUF-SOL MIDTERMS 18

 TORTS AND DAMAGES

ought to be jointly and severally liable with the former for the
injuries sustained by Ma. Lourdes Valenzuela during the
accident.
(2) A woman driving a vehicle suddenly crippled by a flat tire
on a rainy night will not be faulted for stopping at a
point which is both convenient for her to do so and (4) As the amount of moral damages are subject to this
which is not a hazard to other motorists. She is not Court’s discretion, we are of the opinion that the amount of
expected to run the entire boulevard in search for a P1,000,000.00 granted by the trial court is in greater accord
parking zone or turn on a dark street or alley where she with the extent and nature of the injury -. physical and
would likely find no one to help her. It would be psychological - suffered by Valenzuela as a result of Li’s grossly
hazardous for her not to stop and assess the emergency negligent driving of his Mitsubishi Lancer in the early morning
(simply because the entire length of Aurora Boulevard is hours of the accident. The damage done to her would not only
a no-parking zone) because the hobbling vehicle would be permanent and lasting, it would also be permanently
be both a threat to her safety and to other motorists. In changing and adjusting to the physiologic changes which her
the instant case, Valenzuela, upon reaching that portion body would normally undergo through the years. The
of Aurora Boulevard close to A. Lake St., noticed that she replacements, changes, and adjustments will require
had a flat tire. To avoid putting herself and other corresponding adjustive physical and occupational therapy. All
motorists in danger, she did what was best under the of these adjustments, it has been documented, are painful.
situation. As narrated by respondent court: "She
stopped at a lighted place where there were people, to
verify whether she had a flat tire and to solicit help if Delsan Transport vs. C&A Construction, Inc.
needed. Having been told by the people present that her G.R No. 156034 October 1, 2003
rear right tire was flat and that she cannot reach her Ynares-Santiago, J.:
home she parked along the sidewalk, about 1 1/2 feet
away, behind a Toyota Corona Car. In fact, respondent
court noted, Pfc. Felix Ramos, the investigator on the Facts:
scene of the accident confirmed that Valenzuela's
Valenzuela's car partly straddling the sidewalk, clear and o M/V Delsan Express owned operated by Delsan
at a convenient distance from motorists passing the right Transport is anchored at Navotos Fish Port
lane of Aurora Boulevard. This fact was itself
corroborated by the testimony of witness Rodriguez. o The captain of the ship Jusep received a report on
October 20 that a typhoon would hit Manila in the next 8
Under the circumstances described, Valenzuela did exercise hours
the standard reasonably dictated by the emergency and could
not be considered to have contributed to the unfortunate o October 21 at 8:35 a.m Capt. Jusep tried to seek shelter
circumstances which eventually led to the amputation of one at the North Harbor however the North Harbor was
of her lower extremities. The emergency which led her to park already congested and just anchored 4 miles away from
her car on a sidewalk in Aurora Boulevard was not of her own Napocor power barge
making, and it was evident that she had taken all reasonable
precautions. o At that time, the waves were already reaching 8-10 feet,
to counter the waives Capt. Jusep ordered to go full
ahead, but to avoid collision with the power barge, he
(3) We agree with the respondent court that the ordered the ship to a full stop
relationship in question is not based on the principle
of respondeat superior, which holds the master liable for However when the engine was re-started, the ship hit
o
acts of the servant, but that of pater familias, in which the deflector wall constructed by C&A Construction
the liability ultimately falls upon the employer, for his costing a P456,198.24 damage
failure to exercise the diligence of a good father of the
family in the selection and supervision of his employees. C&A demanded payment from Delsan transport but
o
It is up to this point, however, that our agreement with refused to pay
the respondent court ends. Utilizing the bonus pater
familias standard expressed in Article 2180 of the Civil C&A then filed a complaint for damages against Delsan
o
Code, 28 we are of the opinion that Li's employer, Transport with the RTC, RTC however ruled in favor of
Alexander Commercial, Inc. is jointly and solidarily liable Delsan, stating that Delsan was not guilty of negligence
for the damage caused by the accident of June 24, 1990. because it had taken all the necessary precautions, and
applied the “emergency rule”
In fine, Alexander Commercial, inc. has not demonstrated, to
our satisfaction, that it exercised the care and diligence of a o On appeal, CA reversed the RTC’s decision and held that
good father of the family in entrusting its company car to Li. Capt. Jusep is guilty of negligence, hence this case
No allegations were made as to whether or not the company
took the steps necessary to determine or ascertain the driving Issue: WON Delsan Transport and Capt. Jusep is guilty of
proficiency and history of Li, to whom it gave full and negligence applying the “Emergency Rule”
unlimited use of a company car.31 Not having been able to
overcome the burden of demonstrating that it should be Held: Yes.
absolved of liability for entrusting its company car to Li, said
company, based on the principle of bonus pater familias, Ratio:

JD-2 AUF-SOL MIDTERMS 19

 TORTS AND DAMAGES

• Emergency Rule- when an individual who suddenly finds Reason: The statute or ordinance becomes the
himself in a situation of danger and is required to act standard of care or conduct to which the
without much time to consider the best means that may be reasonably prudent person is held. Failure to
adopted to avoid the impending danger is not guilty of follow the statute involved constitutes a breach
negligence if he fails to undertake what subsequently and of the legal duty imposed and fixed by the
upon reflection may appear to be a better solution, unless statute. Since negligence is a breach of legal duty,
the emergency was brought by his own negligence. the violator of a statute is then negligent as a
matter of law.
• The court held that the “Emergency Rules” is not applicable
in this case, because the danger where Capt. Jusep found
himseld was caused by his own negligence Exceptions:
o When unusual conditions occur, strict
Reasons: observance may defeat the purpose of the
1. Capt. Jusep was informed of the coming typhoon rule and may even lead to adverse results.
as early as 12 midnight of Oct 20 but did nothing o Specific cases when the statute expressly
2. Capt. Jusep only decided to take shelter the next provides that violation of statutory duty
morning merely establishes a presumption of
3. Capt. Jusep only took shelter at 8:35 which is negligence.
already way past sunrise, and did not transfer as
soon as the sun rose Non-compliance is not sine qua non of
negligence. In addition, one cannot avoid a
• The court also stated that, had Capt. Jusep moved the charge of negligence by showing that the act or
vessel earlier he could have had greater chances of finding
omission complained of was of itself lawful or not
a space at the North Harbor, and even the North Harbor is
congested, Capt. Jusep could still have enough time to seek violative of any statute or ordinance. Compliance
shelter therewith is not conclusive that there was no
negligence.
As to the liability of Delsan Transport: I.E. Driving below the speed limit.

• Art. 2180 of the Civil Code provides: ii. Administrative rules

• “an employer may be held solidarily liable for the
negligent act of his employee” Violation of a rule promulgated by administrative
agencies, is not negligence per se but it may be
• Whenever an employee’s negligence causes damage or evidence of negligence.
injury to another, there instantly arises a presumption juris
tantum that the employer failed to exercise diligence of a
However, in Cipriano vs. Court of Appeals
good father of a family in the selection of its employees,
unless the employer can prove otherwise (supra), the Supreme Court considered violation
of a Ministry (Department) Order which was
• Diligence of a good father of a family does not only pertains issued pursuant to and to implement a statute as
to the selection of employees but also to the supervision of negligence per se.
its employees
iii. Private rules of conduct

5) Violation of rules, statutes, practice and custom The same rule applies to rules imposed by private
individuals like an employer. The order or
a. Violations of rules and statutes prohibition of an employer “couldn’t be of
i. Statutes and ordinances greater obligation than the rule of a Commission
or Board” and violation thereof is merely a
Violation of statute may be treated either as: “possible evidence of negligence.”
o a circumstance which establishes a
presumption of negligence N.B. Although violation of statute is negligence per se (or even in
o negligence per se case negligence is merely presumed), the plaintiff must still
o a circumstance which should be considered present proof that the proximate cause of his injury is the
together with other circumstances as negligence of the defendant. Proof must be presented that there
evidence of negligence. was causal connection between the negligence or violation of
statute and the injury. Absent such proof, the defendant will not
It is up to the legislature or the Court to select be held liable.
which competing theory should be applied in a
particular jurisdiction.

General rule: In several cases, the Supreme Court

consistently held that violation of statutory duty
is negligence per se.

JD-2 AUF-SOL MIDTERMS 20

 TORTS AND DAMAGES

b. Practice and custom the selection and supervision of his driver, Bedania. The
dispositive portion of the decision provides:
Compliance with the practice and custom in a
Respondents appealed to the Court of Appeals.
community will not automatically result in a finding
that the actor is not guilty of negligence. On the other On 3 June 2003, the Court of Appeals rendered its decision in
hand, non-compliance with the custom or practice in a favor of respondents.
community does not necessarily mean that the actor
was negligent. Issue: Whether or not Bedania and Silva are liable for
damages based on quasi delict.
Yamada vs. Manila Railroad Co. (33 Phil. 11, 12-13
[1915]).
A practice which is dangerous to human life cannot The Ruling of the Regional Trial Court
ripen into custom which will protect anyone who
follows it. One who performs an act so inherently According to the trial court, there is a presumption that a
dangerous cannot, when an accident occurs, take person driving a motor vehicle has been negligent if at the
refuge behind the plea that others have performed time of the mishap, he was violating any traffic regulation. In
the same act safely. this case, the trial court found that the Traffic Accident
Investigation Report (report), corroborated by the testimonies
of the witnesses, showed that the truck committed a traffic
SOFIA M. GUILLANG, represented by SUSAN GUILLANG- violation by executing a U-turn without signal lights. The trial
CABATBAT, REYNALDO, GERARDO, BIENVENIDO, DAWNA, court also declared that Bedania violated Sections
and NELLIE, all surnamed GUILLANG, GENARO GUILLANG, 45(b),10 48,11 and 5412 of Republic Act No. 413613 when he
JOSE DIGNADICE, and ALVIN LLANILLO, Petitioners, executed the sudden U-turn. The trial court added that
vs. Bedania violated another traffic rule when he abandoned the
RODOLFO BEDANIA and RODOLFO DE SILVA, Respondents. victims after the collision.14The trial court concluded that
G.R. No. 162987 May 21, 2009 Bedania was grossly negligent in his driving and held him liable
for damages.
CARPIO, J. Moreover, the trial court found that Bedania did not make the
U-turn at an intersection. According to the trial court, vehicles
Facts: trying to maneuver to change directions must seek an
intersection where it is safer to maneuver and not recklessly
make a U-turn in a highway. The trial court said Bedania
o On 25 October 1994, at about 5:45 in the afternoon, should have observed extreme caution in making a U-turn
petitioner Genaro M. Guillang (Genaro) was driving his because it was unexpected that a long cargo truck would
brand new Toyota Corolla along Emilio Aguinaldo execute a U-turn along the highway.
Highway in Cavite. Genaro, Antero Guillang (Antero),
Felipe Jurilla, Jose Dignadice (Dignadice), and Alvin The trial court also said that Bedania’s gross negligence raised
Llanillo (Llanillo) had all just left from Golden City, the legal presumption that de Silva, as Bedania’s employer,
Dasmariñas, Cavite, and were on their way to Manila. At was negligent in the selection and supervision of his
the other side of the highway, respondent Rodolfo A. employees. The trial court said that, under Articles 217615 and
Bedania (Bedania) was driving a ten-wheeler truck 218016 of the Civil Code, de Silva’s liability was based on culpa
towards Tagaytay City. The truck was owned by aquiliana which holds the employer primarily liable for
respondent Rodolfo de Silva (de Silva). tortious acts of his employees, subject to the defense that he
exercised all the diligence of a good father of a family in the
o Along the highway and the road leading to the Orchard selection and supervision of his employees. The trial court
Golf Course, Bedania negotiated a U-turn. When the ruled that de Silva failed to prove this defense and,
truck entered the opposite lane of the highway, consequently, held him liable for damages.
Genaro’s car hit the right portion of the truck. The truck
dragged Genaro’s car some five meters to the right of The Ruling of the Court of Appeals
the road. The Court of Appeals dismissed the testimonies of the
o As a consequence, all the passengers of the car were witnesses and declared that they were "contrary to human
rushed to the hospital for treatment. Because of severe observation, knowledge and experience.
injuries, however, on 3 November 1994, Antero died due
The Court of Appeals concluded that the collision was caused
to the injuries he sustained from the collision.
by Genaro’s negligence. The Court of Appeals declared that
o The heirs of Antero instituted a complaint for damages the truck arrived at the intersection way ahead of the car and
based on quasi-delict against respondents Bedania and had already executed the U-turn when the car, traveling at a
de Silva. fast speed, hit the truck’s side. The Court of Appeals added
that considering the time and the favorable visibility of the
o On 5 December 2000, the trial court rendered a decision road and the road conditions, Genaro, if he was alert, had
in favor of petitioners. The trial court found Bedania ample time to react to the changing conditions of the road.
grossly negligent for recklessly maneuvering the truck by The Court of Appeals found no reason for Genaro not to be
making a sudden U-turn in the highway without due prudent because he was approaching an intersection and
regard to traffic rules and the safety of other motorists. there was a great possibility that vehicles would be traversing
The trial court also declared de Silva grossly negligent in the intersection either going to or from Orchard Golf Course.

JD-2 AUF-SOL MIDTERMS 21

 TORTS AND DAMAGES

The Court of Appeals said Genaro should have slowed down The Court of Appeals also concluded that Bedania made the
upon reaching the intersection. The Court of Appeals U-turn at an intersection. Again, this is not supported by the
concluded that Genaro’s failure to observe the necessary evidence on record. The police sketch does not indicate an
precautions was the proximate cause of Antero’s death and intersection and only shows that there was a road leading to
the injuries of the petitioners. the Orchard Golf Course near the place of the collision.
Furthermore, U-turns are generally not advisable particularly
The Court of Appeals also relied on the testimony of Police on major streets. Contrary to Videna’s testimony, it is not
Traffic Investigator Efren Videna (Videna) that the car was normal for a truck to make a U-turn on a highway. We agree
running at a fast speed and overtook another vehicle just with the trial court that if Bedania wanted to change direction,
before the collision occurred.18 The Court of Appeals he should seek an intersection where it is safer to maneuver
concluded that Genaro did not see the truck as the other the truck. Bedania should have also turned on his signal lights
vehicle temporarily blocked his view of the intersection. The and made sure that the highway was clear of vehicles from
Court of Appeals also gave weight to Videna’s testimony that the opposite direction before executing the U-turn.
it was normal for a ten-wheeler truck to make a U-turn on
that part of the highway because the entrance to Orchard Golf The finding of the Court of Appeals that it was not yet dark
Course was spacious.19 when the collision occurred is also not supported by the
evidence on record. The report stated that the daylight
On the Presumption of Negligence and Proximate Cause condition at the time of the collision was "darkness."39
Negligence is defined as the failure to observe for the Contrary to the conclusion of the Court of Appeals, the sheer
protection of the interest of another person that degree of size of the truck does not make it improbable for the truck to
care, precaution, and vigilance which the circumstances execute a sudden U-turn. The trial court’s decision did not
justly demand, whereby such other person suffers injury. state that the truck was traveling at a fast speed when it made
In Picart v. Smith,25 we held that the test of negligence is the U-turn. The trial court said the truck made a "sudden" U-
whether the defendant in doing the alleged negligent act used turn, meaning the U-turn was made unexpectedly and with no
that reasonable care and caution which an ordinary person warning, as shown by the fact that the truck’s signal lights
would have used in the same situation. were not turned on.
The conclusion of the Court of Appeals that Genaro was Clearly, Bedania’s negligence was the proximate cause of the
negligent is not supported by the evidence on record. In ruling collision which claimed the life of Antero and injured the
that Genaro was negligent, the Court of Appeals gave weight petitioners. Proximate cause is that which, in the natural and
and credence to Videna’s testimony. However, we find that continuous sequence, unbroken by any efficient, intervening
Videna’s testimony was inconsistent with the police records cause, produces the injury, and without which the result
and report that he made on the day of the collision. would not have occurred. The cause of the collision is
Moreover, if the car was speeding, there should have been traceable to the negligent act of Bedania for if the U-turn
skid marks on the road when Genaro stepped on the brakes to was executed with the proper precaution, the mishap in all
avoid the collision. But the sketch of the accident showed no probability would not have happened. The sudden U-turn of
skid marks made by the car. the truck without signal lights posed a serious risk to
Under Article 2185 of the Civil Code, unless there is proof to oncoming motorists. Bedania failed to prevent or minimize
the contrary, a person driving a vehicle is presumed that risk. The truck’s sudden U-turn triggered a series of
negligent if at the time of the mishap, he was violating any events that led to the collision and, ultimately, to the death of
traffic regulation. Antero and the injuries of petitioners.

In this case, the report showed that the truck, while making We agree with the trial court that de Silva, as Bedania’s
the U-turn, failed to signal, a violation of traffic rules. The employer, is also liable for the damages suffered by
police records also stated that, after the collision, Bedania petitioners. De Silva failed to prove that he exercised all the
escaped and abandoned the petitioners and his truck. This is diligence of a good father of a family in the selection and
another violation of a traffic regulation. Therefore, the supervision of his employees.
presumption arises that Bedania was negligent at the time of
the mishap.
The evidence presented in this case also does not support the Second Division
conclusion of the Court of Appeals that the truck had already
executed the U-turn before the impact occurred. If the truck Tison v. Sps. Pomasin
had fully made the U-turn, it should have been hit on its GR No. 173180
rear. But the evidence clearly shows, and the Court of Appeals August 24, 2011
even declared, that the car hit the truck’s gas tank, located at
the truck’s right middle portion, which disproves the Perez, J:
conclusion of the Court of Appeals that the truck had already
executed the U-turn when it was hit by the car. Facts:
Moreover, the Court of Appeals said that the point of impact o Two vehicles, a tractor-trailer and a jeepney, figured in a
was on the lane where the car was cruising. Therefore, the car vehicular mishap along Maharlika Highway in Albay.
had every right to be on that road and the car had the right of Some passengers of the jeepney including the driver
way over the truck that was making a U-turn. Clearly, the died while the tractor’s driver and passengers were
truck encroached upon the car’s lane when it suddenly made injured. Respondents, those in the jeepney, filed a
the U-turn. complaint for damages against petitioners before the

JD-2 AUF-SOL MIDTERMS 22

 TORTS AND DAMAGES

RTC and alleged that the proximate cause of the accident aiming to provide compensation for the harm
was the negligence, imprudence and carelessness of suffered by those whose interests have been
petitioners. In their answer, petitioners countered that it invaded owing to the conduct of other.
was the jeepney driver’s negligence which proximately
caused the accident. In the instant case, no causal connection was
established between the tractor-trailer driver’s
RTC – Ruled in favor of petitioners (tractor-trailer) restrictions on his license to the vehicular collision.
CA – Reversed RTC decision. Ruled in favor of
respondents (jeepney)
6) Proof of negligence/Burden of proof
o The CA noted that at the time of the incident, the tractor
driver was prohibited from driving the truck due to the The quantum of proof required is preponderance of
restriction imposed on his driver’s license. CA concluded evidence.
that the said driver was violating a traffic regulation at
the time of the collision and therefore was the negligent
General rule: Plaintiff alleging the damage due to negligent
party.
acts in his complaint has the burden of proving such
Issue: Whether or not there is a causal connection negligence.
between the violation of the traffic regulation and
the damages sustained by petitioners. Exception: When the rules or the laws provide for cases
when negligence is presumed.
Held: No, there is no causal connection between the
violation of the traffic regulation and the damages
sustained by petitioners. Section 1 Rule 131 of the Revised Rules of Court.
Preponderance of evidence, how determined. — In civil
Ratio: We did not lose sight of the fact that at the time of cases, the party having burden of proof must establish
the incident, Jabon was prohibited from driving the his case by a preponderance of evidence. In determining
truck due to the restriction imposed on his driver’s where the preponderance or superior weight of
license, i.e., restriction code 2 and 3. evidence on the issues involved lies, the court may
consider all the facts and circumstances of the case, the
Driving without a proper license is a violation of witnesses' manner of testifying, their intelligence, their
traffic regulation. Under Article 2185 of the Civil means and opportunity of knowing the facts to which
Code, the legal presumption of negligence arises if there are testifying, the nature of the facts to which they
at the time of the mishap, a person was violating testify, the probability or improbability of their
any traffic regulation. However, in Sanitary Steam testimony, their interest or want of interest, and also
Laundry, Inc. v. Court of Appeals, we held that a their personal credibility so far as the same may
causal connection must exist between the injury legitimately appear upon the trial. The court may also
received and the violation of the traffic regulation. consider the number of witnesses, though the
It must be proven that the violation of the traffic preponderance is not necessarily with the greater
regulation was the proximate or legal cause of the number.
injury or that it substantially contributed thereto.
Negligence, consisting in whole or in part, of
violation of law, like any other negligence, is Disputable presumption of negligence
without legal consequence unless it is a
contributing cause of the injury. Likewise The Civil Code provides for the following cases when the existence
controlling is our ruling in Añonuevo v. Court of of negligence is presumed. (2184, 2185, 2188)
Appeals where we reiterated that negligence per
se, arising from the mere violation of a traffic a. Motor vehicle mishaps - a driver is presumed negligent if
statute, need not be sufficient in itself in he:
establishing liability for damages. i. Was found guilty of a reckless driving or violating
traffic regulations at least twice within the
The rule on negligence per se must admit
preceding 2 months. (Article 2184)
qualifications that may arise from the logical
ii. Violating any traffic regulation at the time of the
consequences of the facts leading to the mishap.
The doctrine (and Article 2185, for that matter) is mishap. (Article 2185)
undeniably useful as a judicial guide in adjudging
liability, for it seeks to impute culpability arising b. Possession of dangerous weapons or substances such as
from the failure of the actor to perform up to a firearms and poison that results in death or injury, except
standard established by a legal fiat. But the when the possession or use thereof is indispensable in his
doctrine should not be rendered inflexible so as to occupation or business. (Article 2188)
deny relief when in fact there is no causal relation
between the statutory violation and the injury N.B. It should be noted, however, that the party invoking such
sustained. Presumptions in law, while convenient, presumption must still establish certain preconditions before the
are not intractable so as to forbid rebuttal rooted presumption can operate. Thus, Article 2185 requires proof that
in fact. After all, tort law is remunerative in spirit, there was a violation of a traffic regulation while Article 2188

JD-2 AUF-SOL MIDTERMS 23

 TORTS AND DAMAGES

requires proof of possession of dangerous weapons or no presumptions will be involved and the doctrine becomes
substances, such as firearms and poison. inapplicable when the circumstances have been so
completely elucidated that no inference of defendant’s
Presumption of negligence may also arise because of certain liability can reasonably be made, whatever the source of the
contractual relationship between the parties. evidence.
a. Common carriers are presumed to have been at fault or
acted negligently in case of death or injuries to passengers,
G.R. No. 194320 February 1, 2012
unless they prove that they observed extraordinary diligence MALAYAN INSURANCE CO., INC., Petitioner,
as prescribed in Articles 1733 and 1755. vs.
RODELIO ALBERTO and ENRICO ALBERTO
Res ipsa loquitur – “The thing or transaction speaks for itself” REYES, Respondents.

MA-AO Sugar Central Co., Inc., et al. vs. Hon. Court of PONENTE VELASCO, JR., J.:
Appeals, et al., G.R. No. 83491, August 27, 1990:
RTC: Feb 2, 2009 - Decided in favor of Malayan Insurance [1.
Where the thing which causes injury is shown to be under the The amount of P700,000.00 with legal interest from the time of
management of the defendant, and the accident is such as in the filing of the complaint; 2. Attorney’s fees of P10,000.00 and;
the ordinary course of things does not happen if those who 3. Cost of suit]
have the management use proper care, it affords reasonable CA: July 28, 2010 - reversed and set aside RTC’s decision; Oct.
evidence, in the absence of an explanation by the defendant, 29, 2010 – MR denied.
that the accident arose from want of care. SC: Petition for Review on Certiorari under Rule 45 the
decisions of CA
RULING: Petition GRANTED. The CA’s Decisions are REVERSED
Prima facie negligence may be established without direct proof
and SET ASIDE. The Decision of RTC is REINSTATED.
and furnishes a substitute for specific proof of negligence. The
doctrine is not a rule of substantive law but merely a mode of Facts:
proof or a mere procedural convenience. The rule, when o At around 5 o’clock in the morning of December 17, 1995,
applicable to the facts and circumstances of a particular case, is an accident occurred at the corner of EDSA and Ayala
not intended to and does not dispense with the requirement of Avenue, Makati City, involving four (4) vehicles, (1)Nissan
proof of culpable negligence on the part of the party charged. It Bus operated by Aladdin Transit; (2) an Isuzu Tanker; (3)
merely determines and regulates what shall be prima facie Fuzo Cargo Truck; and (4) a Mitsubishi Galant
evidence thereof and facilitates the burden of plaintiff of proving
a breach of the duty of due care. The doctrine can be invoked o Based on the Police Report, the three (3) vehicles were at
when and only when, under the circumstances involved, direct a halt along EDSA facing the south direction when the
evidence is absent and not readily available. Fuzo Cargo Truck simultaneously bumped the rear
portion of the Mitsubishi Galant and the rear left portion
of the Nissan Bus. Due to the strong impact, these two
Res ipsa loquitur is applied in conjunction with the doctrine of
vehicles were shoved forward causing the Mitsubishi
common knowledge.
Galant to ram into the Isuzu Tanker.

Requisites: o Mitsubishi Galant is insured by Malayan insurance against

third party liability, own damage and theft, among others.
1. The accident is of a kind which ordinarily does not occur in Having insured the vehicle against such risks, Malayan
the absence of someone’s negligence; Insurance claimed in its Complaint dated October 18,
2. It is caused by an instrumentality within the exclusive 1999 that it paid the damages sustained by owner of
control of the defendant or defendants; Mitsubishi Galant (assured), amounting to PhP 700,000.
3. The possibility of contributing conduct which would make
the plaintiff responsible is eliminated. o Maintaining that it has been subrogated to the rights and
4. It must appear that the injured party had no knowledge or interests of the assured by operation of law upon its
payment to the latter, Malayan Insurance sent several
means of knowledge as to the cause of the accident, or that
demand letters to Rodelio Alberto (Alberto) and Enrico
the party to be charged with negligence has superior
Alberto Reyes (Reyes), the registered owner and the
knowledge or opportunity for explanation of the accident
driver, respectively, of the Fuzo Cargo Truck, requiring
them to pay the amount it had paid to the assured.
When doctrine is inapplicable:
o When respondents refused to settle their liability,
1. Where plaintiff has knowledge and testifies or presents Malayan Insurance was constrained to file a complaint for
evidence as to the specific act of negligence which is the damages for gross negligence against respondents.
cause of the injury complained of
2. Where there is direct evidence as to the precise cause of the o Reyes and Alberto asserted that they cannot be held
accident and all the facts and circumstances attendant on liable for the vehicular accident, since its proximate cause
the occurrence clearly appear. was the reckless driving of the Nissan Bus driver, they also
3. Once the actual cause of injury is established beyond controverted the results of the Police Report, asserting
controversy, whether by the plaintiff or by the defendant,

JD-2 AUF-SOL MIDTERMS 24

 TORTS AND DAMAGES

that it was based solely on the biased narration of the contrary. It is unfortunate, however, that respondents failed to
Nissan Bus driver. present any evidence before the trial court. Thus, the
presumption of negligence remains.
o The trial court, ruled in favor of Malayan Insurance and
declared Reyes and Alberto liable for damages. Validity of Subrogation:
The claim check voucher and the Release of Claim and
o Dissatisfied, respondents filed an appeal with the CA, the Subrogation Receipt presented by Malayan Insurance are
CA reversed and set aside the Decision of the trial court already part of the evidence on record, and since it is not
and denied Motion for Reconsideration filed by Malayan disputed that the insurance company, indeed, paid PhP
Insurance, thus, this petition. 700,000 to the assured, then there is a valid subrogation
MALAYAN - there was a valid subrogation in the instant case,
Issues: as evidenced by the claim check voucher and the Release of
1. WON THE POLICE REPORT IS ADMISSIBLE IN COURT Claim and Subrogation Receipt presented by it before the trial
EVEN WHEN IT WAS NOT PROPERLY IDENTIFIED BY court.
THE POLICE INVESTIGATOR. RESPONDENTS - the documents presented by Malayan
2. WON MALAYAN INSURANCE FAILED TO OVERCOME Insurance do not indicate certain important details that would
THE BURDEN OF PROOF REQUIRED TO ESTABLISH show proper subrogation.
THE GROSS NEGLIGENCE OF RESPONDENTS SUPREME COURT - respondents are deemed to have waived
3. WHETHER THE SUBROGATION OF MALAYAN their right to make an objection when they failed to make a
INSURANCE HAS PASSED COMPLIANCE AND timely objection when these documents were presented in the
REQUISITES AS PROVIDED UNDER PERTINENT trial court.
LAWS. The rule is that failure to object to the offered evidence
renders it admissible, and the court cannot, on its own,
Admissibility of the Police Report: disregard such evidence
MALAYAN - POLICE REPORT still admissible in evidence even
without the presentation of the police investigator for “When a party desires the court to reject the evidence
respondents’ failure to make a timely objection to its offered, it must so state in the form of a timely objection and
presentation in evidence it cannot raise the objection to the evidence for the first time
RESPONDENTS - POLICE REPORT was never confirmed by police on appeal. Because of a party’s failure to timely object, the
investigator, hence, it cannot be considered part of the evidence becomes part of the evidence in the case.
evidence on record Thereafter, all the parties are considered bound by any
SUPREME COURT - Respondents failed to make a timely outcome arising from the offer of evidence properly
objection to the police report’s presentation in evidence; thus, presented.”
they are deemed to have waived their right to do so.25 As a
result, the police report is still admissible in evidence. Consunji Case was discussed at length it could be inferred that
the burden of proving that “negligence does not exist” lies on
There was a discussion on hearsay rule and its exemption, the defendant who is better situated to prove that they were
however, it was not applied, third requisite was lacking for it to not negligent, and that res ipsa loquitur applies in this case.
apply.

Sufficiency of Evidence: G.R. No. 137873 April 20, 2001

MALAYAN - Reyes, the driver of the Fuzo Cargo truck, bumped
the rear of the Mitsubishi Galant, he is presumed to be
negligent unless proved otherwise. It further contends that D. M. CONSUNJI, INC., petitioner,
respondents failed to present any evidence to overturn the vs.
presumption of negligence. COURT OF APPEALS and MARIA J. JUEGO, respondents.
RESPONDENTS - Malayan Insurance did not present any
witness who shall affirm any negligent act of Reyes in driving KAPUNAN, J.:
the Fuzo Cargo truck before and after the incident, there is no
evidence which would show negligence on the part of
Facts:
respondents.
SUPREME COURT - The Fuzo Cargo Truck would not have had
hit the rear end of the Mitsubishi Galant unless someone is o At around 1:30 p.m., November 2, 1990, Jose Juego, a
negligent. Also, the Fuzo Cargo Truck was under the exclusive construction worker of D. M. Consunji, Inc., fell 14 floors
control of its driver, Reyes. Even if respondents avert liability by to the basement while he was working with appellant’s
putting the blame on the Nissan Bus driver, still, this allegation construction project, resulting to his death. The
was self-serving and totally unfounded. Finally, no contributory construction site is within the exclusive control and
negligence was attributed to the driver of the Mitsubishi management of appellant. It has a safety engineer, a
Galant. Consequently, all the requisites for the application of project superintendent, a carpenter leadman and others
the doctrine of res ipsa loquitur are present, thereby creating a who are in complete control of the situation therein.
reasonable presumption of negligence on the part of
respondents. o PO3 Rogelio Villanueva of the Eastern Police District
It is worth mentioning that just like any other disputable investigated the tragedy and filed a report dated
presumptions or inferences, the presumption of negligence November 25, 1990, stating that: It is thus manifest that
may be rebutted or overcome by other evidence to the Jose A. Juego was crushed to death when the [p]latform

JD-2 AUF-SOL MIDTERMS 25

 TORTS AND DAMAGES

he was then on board and performing work, fell. And the which may either be omitted or misunderstood by the one
falling of the [p]latform was due to the removal or writing them.29 Petitioner, therefore, cannot use said
getting loose of the pin which was merely inserted to the statement as proof of its due care anymore than private
connecting points of the chain block and [p]latform but respondent can use it to prove the cause of her husband’s
without a safety lock. death. Regrettably, petitioner does not cite any other
evidence to rebut the inference or presumption of
o Accordingly, Jose Juego’s widow, Maria, filed in the negligence arising from the application of res ipsa loquitur,
Regional Trial Court (RTC) of Pasig a complaint for or to establish any defense relating to the incident
damages against the deceased’s employer, D.M.
Consunji, Inc. The trial court held that DMCI is presumed
EXTRAS:
negligent grounded on the application of the doctrine of
res ipsa loquitor. On appeal by D. M. Consunji, the Court
of Appeals (CA) affirmed the decision of the RTC in toto. Ratio: While negligence is not ordinarily inferred or presumed,
Hence, this case. and while the mere happening of an accident or injury will not
generally give rise to an inference or presumption that it was
due to negligence on defendant’s part, under the doctrine of
Issue: WON THE APPELLATE COURT ERRED IN HOLDING THAT
res ipsa loquitur, which means, literally, the thing or
THE DOCTRINE OF RES IPSA LOQUITUR IS APPLICABLE in this
transaction speaks for itself, the facts or circumstances
case, and hence, DMCI IS PRESUMED NEGLIGENT UNDER
accompanying an injury may be such as to raise a
ARTICLE 2180 OF THE CIVIL CODE
presumption, or at least permit an inference of negligence on
the part of the person who is charged with negligence. Where
Held: NO, the appellate court did not err in holding that the it is shown that the thing or instrumentality which caused the
doctrine of res ipsa loquitor is applicable in this case, and injury complained of was under the control or management of
hence, DMCI is presumed negligent under article 2180 of the the defendant, and that the occurrence resulting in the injury
Civil Code. The circumstances of any accident that would was such as in the ordinary course of things would not happen
occur therein are peculiarly within the knowledge of the if those who had its control or management used proper care,
appellant or its employees. On the other hand, the appellee is there is sufficient evidence, or, as sometimes stated,
not in a position to know what caused the accident. Res ipsa reasonable evidence, in the absence of explanation by the
loquitur is a rule of necessity and it applies where evidence is defendant, that the injury arose from or was caused by the
absent or not readily available, provided the following defendant’s want of care.
requisites are present: (1) the accident was of a kind which
does not ordinarily occur unless someone is negligent; (2) the
Basis of doctrine- One of the theoretical based for the
instrumentality or agency which caused the injury was under
doctrine is its necessity, i.e., that necessary evidence is absent
the exclusive control of the person charged with negligence;
or not available. That the chief evidence of the true cause,
and (3) the injury suffered must not have been due to any
whether culpable or innocent, is practically accessible to the
voluntary action or contribution on the part of the person
defendant but inaccessible to the injured person. It proceeds
injured. No worker is going to fall from the 14th floor of a
on the theory that under the peculiar circumstances in which
building to the basement while performing work in a
the doctrine is applicable, it is within the power of the
construction site unless someone is negligent; thus, the first
defendant to show that there was no negligence on his part,
requisite for the application of the rule of res ipsa loquitur is
and direct proof of defendant’s negligence is beyond
present. As explained earlier, the construction site with all its
plaintiff’s power.
paraphernalia and human resources that likely caused the
injury is under the exclusive control and management of
appellant; thus, the second requisite is also present. No Effect when rule is applicable- As a rule of evidence, the
contributory negligence was attributed to the appellee’s doctrine of res ipsa loquitur is peculiar to the law of
deceased husband; thus,the last requisite is also present. All negligence which recognizes that prima facie negligence may
the requisites for the application of the rule of res ipsa be established without direct proof and furnishes a substitute
loquitur are present, thus a reasonable presumption or for specific proof of negligence. The defendant’s negligence is
inference of appellant’s negligence arises. presumed or inferred when the plaintiff establishes the
requisites for the application of res ipsa loquitur. Once the
plaintiff makes out a prima facie case of all the elements, the
In any case, petitioner cites the sworn statement of its
burden then shifts to defendant to explain. The presumption
leadman Ferdinand Fabro executed before the police
or inference may be rebutted or overcome by other evidence
investigator as evidence of its due care. According to Fabro’s
and, under appropriate circumstances disputable
sworn statement, the company enacted rules and regulations
presumption, such as that of due care or innocence, may
for the safety and security of its workers. Moreover, the
outweigh the inference.27It is not for the defendant to explain
leadman and the bodegero inspect the chain block before
or prove its defense to prevent the presumption or inference
allowing its use. However, Fabro’s sworn statement is hearsay
from arising. Evidence by the defendant of say, due care,
and inadmissible. Affidavits are inadmissible as evidence
comes into play only after the circumstances for the
under the hearsay rule, unless the affiant is placed on the
application of the doctrine has been established.1âwphi1.nêt
witness stand to testify thereon. The inadmissibility of this
sort of evidence is based not only on the lack of opportunity
on the part of the adverse party to cross-examine the affiant, Notes:
but also on the commonly known fact that, generally, an Requisites for application of res ipsa loquitur “the thing or
affidavit is not prepared by the affiant himself but by another transaction speaks for itself”
who uses his own language in writing the affiant’s statements

JD-2 AUF-SOL MIDTERMS 26

 TORTS AND DAMAGES

(1) That the chief evidence of the true cause, whether Ratio:
culpable or innocent, is practically accessible to the defendant 1. Res ipsa loquitur is a rule of evidence whereby negligence
but inaccessible to the injured person. of the alleged wrongdoer may be inferred from the mere fact
(2) the accident was of a kind which does not ordinarily occur that the accident happened provided the character of the
unless someone is negligent; accident and circumstances attending it lead reasonably to
(3) the instrumentality or agency which caused the injury was belief that in the absence of negligence it would not have
under the exclusive control of the person charged with occurred and that thing which caused injury is shown to have
negligence; been under the management and control of the alleged
(4) the injury suffered must not have been due to any wrongdoer. The doctrine of res ipsa loquitur as a rule of
voluntary action or contribution on the part of the person evidence is unusual to the law of negligence which recognizes
injured that prima facie negligence may be established without direct
proof and furnishes a substitute for specific proof of
negligence. The doctrine, however, is not a rule of substantive
Dr. Emmanuel Jarcia, Jr. and Dr. Marilou Bastan v. People of law, but merely a mode of proof or a mere procedural
the Philippines convenience.
GR No. 187926, February 15, 2012
Mendoza, J. It merely determines and regulates what shall be prima facie
evidence thereof and helps the plaintiff in proving a breach of
Facts: the duty. The doctrine can be invoked when and only when,
o Belinda Santiago (Mrs. Santiago) lodged a complaint with under the circumstances involved, direct evidence is absent
the National Bureau of Investigation (NBI) against the and not readily available.
petitioners, Dr. Emmanuel Jarcia, Jr. (Dr. Jarcia) and Dr.
Marilou Bastan (Dr. Bastan), for their alleged neglect of
professional duty which caused her son, Roy Alfonso In this case, the circumstances that caused patient Roy Jr.’s
Santiago (Roy Jr.), to suffer serious physical injuries. injury and the series of tests that were supposed to be
Upon investigation, the NBI found that Roy Jr. was hit by undergone by him to determine the extent of the injury
a taxicab; that he was rushed to the Manila Doctors suffered were not under the exclusive control of Drs. Jarcia
Hospital for an emergency medical treatment; that an X- and Bastan. As to whether the petitioners have exercised the
ray of the victim’s ankle was ordered; that the X-ray requisite degree of skill and care in treating patient Roy, Jr. is
result showed no fracture as read by Dr. Jarcia; that Dr. generally a matter of expert opinion.
Bastan entered the emergency room (ER) and, after
conducting her own examination of the victim, informed 2. The testimony of Dr. Cirilo R. Tacata (Dr. Tacata), a specialist
Mrs. Santiago that since it was only the ankle that was in pediatric orthopedic, although pointing to some medical
hit, there was no need to examine the upper leg; that procedures that could have been done by Dr. Jarcia and Dr.
eleven (11) days later, Roy Jr. developed fever, swelling Bastan, as physicians on duty, was not clear as to whether the
of the right leg and misalignment of the right foot; that injuries suffered by patient Roy Jr. were indeed aggravated by
Mrs. Santiago brought him back to the hospital; and that the petitioners’ judgment. As residents on duty at the
the X-ray revealed a right mid-tibial fracture and a linear emergency room, Dr. Jarcia and Dr. Bastan were expected to
hairline fracture in the shaft of the bone. know the medical protocol in treating leg fractures and in
attending to victims of car accidents. There was, however, no
o The RTC found the petitioners guilty beyond reasonable precise evidence and scientific explanation pointing to the fact
doubt of the crime of Simple Imprudence Resulting to that the delay in the application of the cast to the patient’s
Serious Physical Injuries. In litigations involving medical fractured leg because of failure to immediately diagnose the
negligence, the plaintiff has the burden of proof of specific injury of the patient, prolonged the pain of the child
establishing accused-appellants' negligence, there must or aggravated his condition or even caused further
be proof of breach of duty and there must be a causal complications.
connection of such breach and resulting injury of his
patients. The negligence must be proximate cause of the
injury. The accused-appellants argued that there is no AFFIRMATIVE DUTIES AND MISCELLANEOUS ACTIVITIES.
causal connection between their failure to diagnose the
fracture and the injury sustained by Roy. The RTC DUTY TO RESCUE
applied the doctrine of res ipso loquitur and held that
appellants are guilty beyond reasonable doubt of Simple Hominis enim ad deos nulla re propius accedut quam salutem
Imprudence Resulting to Serious Physical Injuries. hominibus dando — In nothing are men more like gods than in
coming to the rescue of their fellow men.
Issue:
1. Whether or not the doctrine of res ipso loquitur is Duty to the Rescuer
applicable in this case
2. Whether or not the petitioners are liable for criminal o The defendants are liable for the injuries to persons
negligence who rescue people in distress because of the acts or
omission of the said defendants. Courts reject the
Held: arguments of defendants that they are not liable
1. No. because the rescuers are not foreseeable.
2. No. o One who was hurt while trying to rescue another who
was injured through negligence may recover damages

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 TORTS AND DAMAGES

from the person who originally caused the injury (not II. If he reports the accident to the nearest
the rescued person) [Santiago vs. De Leon CA-G.R. No. officer of the law; or
16180-R, March 21, 1960] III. If he has to summon a physician or nurse to
o Conduct which might otherwise be considered aid the victim.”
contributory negligence may not be so considered 3. Individuals who are required by law to take care
where a person is injured in attempting to save others another person. E.g. parents to their children.
from imminent danger of personal injury or death even 4. Defendant in special relationships. E.g. Common
though in attempting such rescue he thereby imperils carriers to their passengers.
his own life.
o In determining whether one making or attempting
such rescue exercised ordinary care, all the OWNERS, PROPRIETORS and POSSESSORS
surrounding circumstances are to be considered
Article 428 of the New Civil Code provides that the owner has the
including the existing emergency, the alarm,
right to enjoy, dispose of and recover his property.
excitement and confusion usually present, the
uncertainty as to the means to be employed, the The owner is not liable to any person who might be damaged if he
necessity for immediate action, and the liability to err is merely exercising his right as such.
in the choice of the best course of action to pursue.
Damage to any person resulting from the exercise of any of the
Requisites to make a tortfeasor liable to the rescuer: rights of ownership is damage without injury - damnum absque
injuria.
1. The tortfeasor was negligent to the person rescued
and such negligence caused peril or the appearance of TRESPASSERS
peril to the person rescued.
2. The peril or appearance of peril was imminent. General rule: The owner has no duty to take reasonable care
3. A reasonable prudent person who would have towards a trespasser for his protection or even to protect him
concluded such peril or appearance of peril existent. from concealed danger.
4. The rescuer acted with reasonable care in effectuating
the rescue. The trespasser comes on to the premises at his own risk. [Taylor
v. Manila Railroad Company]
Duty to Rescue
Exceptions: (VATS)
General rule: A person who refuses to render assistance is not
liable. 1. Visitors – Owners of buildings or premises owe a duty
of care to visitors. [Cabigao vs. University of the East,
Exceptions: CA G.R. No. 33554-R, August 24, 1973, 18 CAR 2s 827].

1. Cases specified under Article 275 of the RPC. Common carriers can may be held liable for negligence
I. Anyone who shall fail to render assistance to third persons who stay in their premises even if they
to any person whom he shall find in an are not passengers.
uninhabited place wounded or in danger of
dying, when he can render such assistance 2. Doctrine of Attractive Nuisance - One who maintains
without detriment to himself, unless such on his premises dangerous instrumentalities or
omission shall constitute a more serious appliances of a character likely to attract children in
offense; play, and who fails to exercise ordinary care to prevent
II. Anyone who shall fail to help or render children from playing therewith or resorting thereto, is
assistance to another whom he has liable to a child of tender years who is injured thereby,
accidentally wounded or injured; even if the child is technically a trespasser in the
III. Anyone who, having found an abandoned premises.
child under seven years of age, shall fail to
deliver said child to the authorities or to his Section 339 of the Restatement (Second) of Torts
family, or shall fail to take him to a safe A possessor of land is subject to liability for physical
place. harm to children trespassing thereon caused by an
2. Land Transportation and Traffic Code (Republic Act artificial condition upon land if:
No. 4136) Sec. 55. Duty of driver in case of accident. — I. The place where the condition exists is one
No driver of a motor vehicle concerned in a vehicular upon which the possessor knows or has
accident shall leave the scene of the accident without reason to know that children are likely to
aiding the victim, except under the following trespass;
circumstances: II. the condition is one of which the possessor
I. If he is in imminent danger of being knows or has reason to know and which he
seriously harmed by any person or persons realizes or should realize will involve an
by reason of the accident; unreasonable risk of death or serious bodily
harm to such children;

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 TORTS AND DAMAGES

III. the children because of their youth do not Petitioner’s tanks are NOT CLASSIFIED as attractive nuisance.
discover the condition or realize the risk The attractive nuisance doctrine generally is not applicable to
involved intermeddling with it or in coming bodies of water, artificial as well as natural, IN THE ABSENCE
within the area made dangerously by it; OF SOME UNUSUAL CONDITION or ARTIFICIAL FEATURE other
IV. the utility to the possessor of maintaining than the mere water and its location (by great majority of
the condition and the burden of eliminating American Decisions)
the danger are slight as compared with the
risk to children involved; and REASON:
Nature has created streams, lakes and pools which attract
V. the possessor fails to exercise reasonable
children. Lurking in their waters is always the danger of
care to eliminate the danger or otherwise
drowning. Against this danger children are early instructed so
to protect the children. that they are sufficiently presumed to know the danger; and
if the owner of private property creates an artificial pool on his
N.B. A swimming pool or pond or reservoir of water is own property, merely duplicating the work of nature without
NOT considered attractive nuisance. In the absence of adding any new danger,. (he) is not liable because of having
some unusual condition or artificial feature other than created an "attractive nuisance.
mere water and its location. [Hidalgo Enterprises vs.
Baladan 91 Phil 488]
3. Tolerated Possession – The owner is still liable if the
plaintiff is inside his property by tolerance or by
G.R. No. L-3422 June 13, 1952 implied permission.
HIDALGO ENTERPRISES, INC., petitioner,
vs. 4. State Necessity - Owners and possessors of real estate
GUILLERMO BALANDAN, ANSELMA ANILA and THE COURT OF also owe a duty to allow trespassers, who are in a state
APPEALS, respondents. of necessity, to enter their properties.

DOCTRINE OF ATTRACTIVE NUISANCE

Article 432. The owner of a thing has no right to
One who maintains on his premises dangerous
prohibit the interference of another with the same, if
instrumentalities or appliances of a character likely to attract
children in play, and who fails to exercise ordinary care to the interference is necessary to avert an imminent
prevent children from playing therewith or resorting thereto, is danger and the threatened damage, compared to the
liable to a child of tender years who is injured thereby, even if damage arising to the owner from the interference, is
the child is technically a trespasser in the premises. much greater. The owner may demand from the
person benefited indemnity for the damage to him.
Facts:
o The Petitioner Hidalgo Enterprises, Inc – owner of an ice It is also a recognized justifying circumstance under
plant factory in Laguna, in whose premises were installed the Revised Penal Code. (Art. 11).
TWO TANKS FULL OF WATER, 9ft deep, for cooling
purposes of its engine. In both the Civil Code and the Revised Penal Code, the
o The edges of the tanks were a barely a foot high from the owner may demand from the person benefited,
surface of the ground. indemnity for damages.
o Anyone could easily enter the said factory through its
For the defence to be availing the greater injury feared
wide gate entrance which is continually open for motor
should not have been brought about by the negligence
vehicles hauling ice and persons buying said commodity.
or imprudence, more so, the wilful inaction of the
o There was no guard assigned on the gate.
actor.
o On about noon of April 16, 1948, plaintiff’s son, Mario, a
boy merely 8years old, while playing with and in Use of properties that injures another
company of some other boys of his age entered the
factory premises through the gate to take a bath in one An owner cannot use his property in such a manner as to injure
of the said tanks. the rights of others. [Article 431 Civil Code]
o And while thus bathing, Mario sank at the bottom of the Thus, the exercise of the right of the owner may give rise to an
tank only to be fished out later, already a cadaver, action based on quasi-delict if the owner negligently exercises
having been died of “asphyxia secondary to drowning”. such right to the prejudice of another.

Court of first instance and Court of appeals – 1. petitioner Liability of Proprietors of buildings
maintained an attractive nuisance (the tanks)
2. petitioner neglected to adopt the necessary precautions Article 2190. The proprietor of a building or structure is
responsible for the damages resulting from its total or partial
Issue: WON a the body of water (the tanks) an attractive collapse, if it should be due to the lack of necessary repairs.
nuisance
Article 2191. Proprietors shall also be responsible for damages
Held: No. caused:

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 TORTS AND DAMAGES

1) By the explosion of machinery which has not been which imposes upon the employer certain duties with
taken care of with due diligence, and the inflammation respect to the proper maintenance of the work place
of explosive substances which have not been kept in a or the provisions of adequate facilities to ensure the
safe and adequate place; safety of the employees.
2) By excessive smoke, which may be harmful to persons o Failure of the employer to comply with said mandatory
or property; provisions may be considered negligence per se.
3) By the falling of trees situated at or near highways or
lanes, if not caused by force majeure; N.B. Collateral Source Rule – If the injured person receives
4) By emanations from tubes, canals, sewers or deposits compensation for his injuries from a source wholly independent
of infectious matter, constructed without precautions of the tortfeasor, the payment should not be deducted from the
suitable to the place. damages which he would otherwise collect from the tortfeasor.

N.B. Third persons who suffered damages may proceed only Employees
against the engineer or architect or contractor if the damage
o Employees are bound to exercise due care in the
referred to in Articles 2190 and 2191 should be a result of any
performance of their functions for the employers;
defect in construction.
absence such due care, the employee may be held
Nevertheless, actions for damages can still be maintained under liable.
Article 2176 for damages resulting from proprietor’s failure to o The liability may be based on negligence committed
exercise due care in the maintenance of his building and that he while in the performance of the duties of the
used his property in such a way that he injured the property of employee. The existence of the contract constitutes
another. no bar to the commission of torts by one against the
other and the consequent recovery of damages.
With respect to the second paragraph of Article 2191, the o An employee is liable for a tort when he neglects to
Supreme Court considered the excessive smoke a nuisance that perform his duties properly to the damage of the firm
might bring about depreciation in the value of adjoining of which he was an officer. It is of no moment that he
properties.However, the Court ruled that there is no certain occupied a contractual position as the existence of a
pecuniary standard by which such damage can be measured, and contract between the parties is not a bar to the
in that sense the threatened injury is irreparable and may commission of a tort and the consequent recovery of
appropriately be restrained by injunction [Ollendorf v. damages.
Abrahamson, 38 Phil. 585].
GR 185412 THIRD DIVISION
DUTY OF EMPLOYERS TO EMPLOYEES GILBERT QUIZORA,
Petitioner – versus –
Article 1711. Owners of enterprises and other employers are DENHOLM CREW MANAGEMENT (PHILIPPINES), INC.,
obliged to pay compensation for the death of or injuries to their Respondent.
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 MENDOZA, J.:
in the course of the employment. The employer is also liable for
compensation if the employee contracts any illness or disease Facts:
caused by such employment or as the result of the nature of the
o In 1992, Denholm Crew Management (Philippines),
employment. If the mishap was due to the employee's own
Inc. (respondent company), a domestic manning
notorious negligence, or voluntary act, or drunkenness, the
agency that supplied manpower to Denklav
employer shall not be liable for compensation. When the
Maritime Services, Ltd. (Denklav), a foreign
employee's lack of due care contributed to his death or injury, the maritime corporation, hired the services of Gilbert
compensation shall be equitably reduced. Quizora (petitioner) to work as a messman on
board the international vessels of Denklav. Based
Article. 1712. If the death or injury is due to the negligence of a on Article 4.2 of the CBA entered into by and
fellow worker, the latter and the employer shall be solidarily liable between the Association of Marine Officers and
for compensation. If a fellow worker's intentional malicious act is Seamen Union of the Philippines (AMOSUP) and
the only cause of the death or injury, the employer shall not be Denholm Ship Management (Singapore) Ltd.,
answerable, unless it should be shown that the latter did not represented by Denklav, his contractual work as
exercise due diligence in the selection or supervision of the messman was considered terminated upon the
plaintiff's fellow worker. expiration of each contract. After the end of a
contract for a particular vessel, he would be given
Employers his next assignment on a different vessel.
o After the expiration of his contract with "MV
o Actions for quasi-delict can still be maintained even if Leopard," petitioner was lined up for another
employee’s compensation is provided for under the assignment to a different vessel, but he was later
Labor Code. disqualified for employment and declared unfit for
o In quasi-delictual actions against the employer, the sea duty after he was medically diagnosed to be
employee may use the provisions of the Labor Code suffering from varicose veins. Petitioner demanded

JD-2 AUF-SOL MIDTERMS 30

 TORTS AND DAMAGES

the payment of disability benefits, separation pay medical diagnosis that his illness was equivalent to a total
and reimbursement of medical expenses. His and permanent disability. Absent any indication, the
demands, however, were denied. Court cannot accommodate him.
o He then submitted his claim before the AMOSUP,
but it was likewise denied. Thereafter, he filed with
same with the LA. The LA, after due hearing,
dismissed petitioners complaint for lack of merit. GR 178901
On appeal, the NLRC reversed the LA's decision and GSIS, petitioner vs MANUEL P BESITAN, respondent
ordered respondent company to pay petitioner his
disability compensation in the amount of DEL CASTILLO, J.:
US$60,000.00. Upon the denial of its MR in the
NLRC, respondent company elevated the case to The primordial purpose of PD No. 626 is to provide meaningful
the CA. On September 8, 2010, the CA rendered a protection to the workers against the hazards of disability or
decision setting aside the NLRC Resolution and illness; hence, a liberal attitude in favor of the employee and his
reinstating the LA Decision. Unsatisfied with the CA beneficiaries in deciding claims for compensation should be
decision, petitioner raised before this Court the adopted.
following
Facts:

Issues: (1) WON petitioners illness (varicose veins) is o Petitioner GSIS is a social insurance institution
work related, (2) WON petitioner is entitled to disability charged with the management and administration
benefits of the trust fund of the Employees Compensation
Commission (ECC) for government officials and
employees.
Held: No
o Respondent Besitan was employed by the Central
Bank of the Philippines on January 21, 1976 as a
Ratio: Bank Examiner. Subsequently, he was promoted as
Bank Officer II and eventually as Bank Officer III.
The Court finds NO merit in the petition. PETITIONER
o In October 2005, Besitan was diagnosed with End
FAILED TO PROVE THAT HIS ILLNESS WAS DUE TO HIS
EMPLOYMENT. Considering that petitioner executed an Stage Renal Disease secondary to Chronic
overseas employment contract with Denholm in 1999, Glomerulonephritis and thus, had to undergo a
the 1996 POEA-SEC should govern. Petitioner cannot kidney transplant for which he incurred medical
simply rely on the disputable presumption provision expenses.
mentioned in Section 20 (B) (4) of the 2000 POEA-SEC. As o Believing that his working condition increased his
he did so without solid proof of work-relation and work- risk of contracting the disease, Besitan filed with
causation or work-aggravation of his illness, the Court
the GSIS a claim for compensation benefits under
cannot provide him relief.
Presidential Decree (PD) No. 626, as amended. The
At any rate, granting that the provisions of the 2000 GSIS, however, denied his claim. The GSIS Decision
POEA-SEC apply, the disputable presumption provision in
was affirmed by the Employees Compensation
Section 20 (B) does not allow him to just sit down and
wait for respondent company to present evidence to Commission but reversed by the Court of Appeals.
overcome the disputable presumption of work- o GSIS contends that Besitan’s ailment is not an
relatedness of the illness. occupational disease; hence, it is incumbent upon
him to prove that the risk of contracting the said
Contrary to his position, he still has to substantiate his
claim in order to be entitled to disability compensation. disease was increased by his employment and
For disability to be compensable under Section 20 (B) of working condition. And since he failed to show
the 2000 POEA-SEC, two elements must concur: (1) the that there is a causal relationship between his
injury or illness must be work-related; and (2) the work- employment and his ailment, he cannot claim
related injury or illness must have existed during the compensation benefits under PD No. 626, as
term of the seafarer’s employment contract. In other
amended.
words, to be entitled to compensation and benefits
under this provision, it is not sufficient to establish that o On the other hand, Besitan admits that his ailment
the seafarer’s illness or injury has rendered him is not listed as an occupational disease under PD
permanently or partially disabled; it must also be shown No. 626, as amended. He, however, insists that he
that there is a causal connection between the seafarer’s was able to prove by substantial evidence that the
illness or injury and the work for which he had been risk of contracting the disease was increased by his
contracted. His sea service was not an unbroken service. working condition. He maintains that in claiming
The fact that he never applied for a job with no other compensation benefits, certainty is not required,
employer is of no moment. He enjoyed month-long sign- only probability. He points out that he was in good
off vacations when his contract expired. It is possible that health when he was employed by the Bangko
he acquired his varicose veins furing those sign-off
periods. Besides, it was not expressly stated in his

JD-2 AUF-SOL MIDTERMS 31

 TORTS AND DAMAGES

Sentral ng Pilipinas in 1976 and that it was only in 5. Order or act of competent public authority. (Article
2004 that he contracted his kidney ailment. 1735, Civil Code).

Nevertheless, the same act which breached the contract gives rise
Issue: WON Besitan is entitled to compensation benefits
to an action based on quasi-delict. [Air France vs. Carrascoso Gr
under PD No. 626, as amended.
No L-21438 September, 28, 1966]
Held: Yes. Besitan has sufficiently proved that his working
A contract to transport passengers is different in kind and degree
condition increased his risk of contracting
Glomerulonephritis. from any other contractual relation because of the relation which
RATIO: In compensation proceedings, the test of proof is an air carrier sustains with the public. Its business is mainly with
probability, not absolute certainty; hence, a claimant only the travelling public. It invites people to avail of the comforts and
needs to show reasonable work connection and not direct advantages it offers. The contract of air carriage generates a
causal relation. relation attended with public duty. Neglect or malfeasance of the
 Certainty is not required only probability; carrier’s employees is a ground for an action for damages. [Air
Increased risk theory France vs. Carrascoso Gr No L-21438 September, 28, 1966]

When Besitan entered the government service in 1976, he was Limitation of liability contract of carriage of goods
given a clean bill of health. In 2005, he was diagnosed with End
The parties may stipulate that the degree of diligence be less than
Stage Renal Disease secondary to Chronic Glomerulonephritis. It
would appear therefore that the nature of his work could have extraordinary provided that the contract be:
increased his risk of contracting the disease. His frequent travels
1. In writing, signed by the shipper or owner
to remote areas in the country could have exposed him to certain
bacterial, viral, and parasitic infection, which in turn could have 2. Supported by a valuable consideration other than the
caused his disease. Delaying his urination during his long trips to service rendered by the common carrier
the provinces could have also increased his risk of contracting his 3. Reasonable, just, and not contrary to public policy
disease. As a matter of fact, even the Bank Physician of Bangko (Article 1744 CC)
Sentral ng Pilipinas, Dr. Gregorio Suarez II, agreed that Besitans
working condition could have contributed to the weakening of G.R. No. 111127. July 26, 1996
his kidneys, which could have caused his disease. MR. & MRS. ENGRACIO FABRE, JR and PORFIRIO
 Compensability proved by substantial evidence CABIL, petitioners, vs. COURT OF APPEALS, WWCF, AMYLINE
ANTONIO, etc.
The Medical Certificate presented by the Bank physician
is sufficient to prove that the working condition of
Besitan increased his risk of contracting Facts:
Glomerulonephritis. In claims for compensation benefits, o Petitioners Engracio Fabre, Jr. and his wife were owners
a doctor’s certification as to the nature of a claimant’s of a Mazda minibus.
disability deserves full credence because no medical o They use the bus as service for school children which they
practitioner would issue certifications operated in Manila.
indiscriminately. Besitan was able to prove by o The couple had a driver, Porfirio J. Cabil, whom they hired
substantial evidence his entitlement to compensation after trying him out for two weeks.
benefits under PD No. 626. o His job was to take school children to and from the St.
Scholastica’s College in Malate, Manila.
o Private respondent Word for the World Christian
COMMON CARRIERS Fellowship Inc. (WWCF) arranged with PETs for the
transportation of 33 members of its Young Adults
o Common carriers, from the nature of their business Ministry from Manila to La Union and back for the amount
and for reasons of public policy, are bound to observe of P3,000.00.
extraordinary diligence in the vigilance over the goods o The group was scheduled to leave at 5pm. However, since
several members of the party were late, the bus did not
and for the safety of passengers transported by them
leave the Tropical Hut until 8pm.
according to all circumstances of each case. Article
o The usual route to Caba, La Union was through Carmen,
1733 Pangasinan.
o However, the bridge at Carmen was under repair, so that
Common carriers shall be responsible for all the loss, destruction
Cabil, who was unfamiliar with the area was forced to
or deterioration of the goods unless the same is due to any of the
take a detour through the town of Ba-ay in Lingayen,
following causes only: Pangasinan.
o At 11pm, Cabil came upon a sharp curve on the highway.
1. Flood, storm, earthquake, lightning, or other natural
o The road was slippery because it was raining, causing the
disaster or calamity; bus (which was running at the speed of 50 km/per hour)
2. Act of the public enemy in war, whether international to skid to the left road shoulder.
or civil; o The bus hit the left traffic steel brace and sign along the
3. Act or omission of the shipper or owner of the goods; road and rammed the fence of one Jesus Escano, then
4. The character of the goods or defects in the packing or turned over and landed on its left side
in the containers; and o The bus came to rest off the road. A coconut tree which it
had hit fell on it and smashed its front portion.

JD-2 AUF-SOL MIDTERMS 32

 TORTS AND DAMAGES

o Several passengers were injured. PR Amyline Antonio both, and one who does such carrying only as an ancillary
was thrown on the floor of the bus and pinned down by a activity (in local idiom, as a sideline).
wooden seat which came off after being unscrewed.
As common carriers, the Fabres were bound to exercise
extraordinary diligence for the safe transportation of the
PET. CABIL CONTENTION: passengers to their destination. This duty of care is not
 He said he was not familiar with the area and he could not excused by proof that they exercised the diligence of a good
have seen the curve despite the care he took in driving father of the family in the selection and supervision of their
the bus, because it was dark and there was no sign on the employee.
road.
 He said that he saw the curve when he was already within Art 1755. A common carrier is bound to carry the passengers
15 to 30 meters of it. He allegedly slowed down to 30 km safely as far as human care and foresight can provide, using the
per hour, but it was too late. utmost diligence of very cautious persons, with a due regard for
all the circumstances.
RULING: WON the bus driver, Porfirio Cabil, was negligent?
 The fact that it was raining and the road was slippery, that Art. 1759 Common carriers are liable for the death of or
it was dark, that he drove his bus at 50 km an hour when injuries to passengers through the negligence or wilful acts of
the normal speed was only 20 km an hour, and that he the formers employees, although such employees may have
was unfamiliar with the terrain, Cabil was grossly acted beyond the scope of their authority or in violation of the
negligent and should be held liable for the injuries orders of the common carriers.
suffered by PR Amyline Antonio.
This liability of the common carriers does not cease
Pursuant to Arts. 2176 and 2180 of the Civil Code his upon proof that they exercised all the diligence of a good
negligence gave rise to the presumption that his employers, father of a family in the selection and supervision of their
the Fabres, were themselves negligent in the selection and employees.
supervision of their employee.
 Due diligence in selection of employees is not satisfied by Petitioners are liable under Arts. 2176 and 2180
finding that the applicant possessed a professional for quasi delict, fully justify finding them guilty of breach of
driver’s license. contract of carriage under Arts. 1733, 1755 and 1759 of the
o The employer should also examine the applicant for Civil Code.
his qualifications, experience and record of service
 The Fabres, in allowing Cabil to drive the bus to La Union,
apparently did not consider the fact that Cabil had been
driving for school children only and had hired him only G.R. No. 177116 February 27, 2013
after a two-week apprenticeship.

PETs ARGUMENTS: ASIAN TERMINALS, INC., Petitioner,

1. They are not liable because an earlier departure (made vs.
impossible by the delayed meeting) could have averted SIMON ENTERPRISES, INC., Respondent.
the mishap
 RULING: The hour of departure had not been fixed. Even VILLARAMA, JR., J.:
if it had been, the delay did not bear directly on the
cause of the accident.
HIGHLIGHT OF THE CASE
2. Under the contract, the WWCF was directly responsible
PRESUMPTION:
for the conduct of the trip.
Common carriers are presumed to have been at fault
 RULING: This case actually involves a contract of
or to have acted negligently if the goods transported by them
carriage. The Fabres did not have to be engaged in the
are lost, destroyed, or deteriorated, and that the common
business of public transportation for the provisions of the
carrier must prove that it exercised extraordinary diligence in
Civil Code on common carriers to apply to them.
order to overcome the presumption
(***HOWEVER, the plaintiff must still,
before the burden is shifted to the defendant, prove
Art. 1732. Common carriers are persons, corporations, firms or
that the subject shipment suffered actual shortage.)
associations engaged in the business of carrying or transporting
passengers or goods or both, by land, water, or air for
Facts:
compensation, offering their services to the public.
o On December 03, 1996, Simon Enterprises filed a case for
an action for damages with the Regional Trial Court (RTC)
Art. 1733. Common carriers, from the nature of their business
of Manila against the unknown owner of the vessels M/V
and for reasons of public policy, are bound to observe
"Sea Dream" and M/V "Tern," its local agent Inter-Asia
extraordinary diligence in the vigilance over the goods and for
Marine Transport, Inc., and petitioner ASIAN TERMINALS
the safety of the passengers transported by them, according to
INC (ATI). It alleged that it suffered the losses through the
all the circumstances of each case.
fault or negligence of the said defendants. It sought to
claim damages plus attorney’s fees and costs of suit.
Art 1732 makes no distinction between one whose
o Take note: On June 09, 1998, its claim against the
principal business activity is the carrying of persons or goods or
unknown owner of the vessel M/V "Sea Dream,"

JD-2 AUF-SOL MIDTERMS 33

 TORTS AND DAMAGES

however, was later settled in a Release and Quitclaim. (I actual shortage, as there was no competent evidence to prove
will not discuss the story re: M/V “Sea Dream”) that it actually weighed 3,300 metric tons at the port of origin.
o Now, only the claims against the unknown owner of the In this case, SIMON ENTERPRISES failed to prove
M/V "Tern," Inter-Asia Marine Transport, Inc., and that the subject shipment suffered shortage, for it was not able
petitioner ATI remained . to establish that the subject shipment was weighed at the PORT
o Simon Enterprises claimed that on November 25, 1995, OF ORIGIN at Darrow, Louisiana, U.S.A. and that the actual
Contiquincybunge Export Company(company na naka- weight of the said shipment was 3,300 metric tons.
based sa USA) allegedly loaded on board the vessel M/V The Court made extensive discussion on the
“Tern” at the Port of Darrow, Louisiana (PORT OF ORIGIN) possibility of the discrepancies and the lost of weight. In the
3,300.000 METRIC TONS OF US Soybean Meal in bulk. end it proclaimed that ATI cannot be faulted for the said lost of
o On January 25, 1996, the said carrier docked at the inner weight since:
Anchorage, South Harbor, Manila (POINT OF ARRIVAL). #1. Simon Enterpriseswas not able to establish
The subject shipment was discharged to the receiving conclusively that the subject shipment weighed 3,300 metric
barges of petitioner ATI and received by respondent tons at the port of loading/port of origin (Port of Darrow,
Simon Enterprises (ito yung pinagbagsakan ng mga Louisiana)
imported US Soy meal). However, it reported that it
received only 3,100.137 metric tons instead of the
#2. The subject shipment most likely lost weight in
manifested 3,300.000 metric tons of shipment.
transit due to the inherent nature of Soya Bean Meal.
o As a result, it filed against petitioner ATI and the carrier a
claim for the shortage of 199.863 metric tons, estimated
to be worth US$79,848.86 or P2,100,025.00. (Ito yung supporting argument dito “Soybeans and
o It alleged that it suffered losses through the fault or soybean meal are hygroscopic materials and will
negligence of the said defendants. either lose (desorb) or gain (adsorb) moisture
o However, the petitioner ATI Argued that it exercised the from the surrounding air. The moisture level
required diligence in handling the subject shipment. reached by a product at a given constant
temperature and equilibrium relative humidity
FLOW OF THE CASE: (ERH) is its equilibrium moisture .As indicated in the
1st-The Regional Trial Court decided in favor of Simon Proforma Invoice mentioned above, the moisture
Enterprises. It held petitioner ATI and its co0defendants content of the subject shipment was 12.5%. Taking
SOLIDARILY LIABLE to the respondent SIMON into consideration the phenomena of desorption,
ENTERPRISES for damages arising from the shortage. the change in temperature surrounding the
2nd –The Court of Appeals affirmed the decision of Soybean Meal from the time it left wintertime
the lower court Darrow, Louisiana, U.S.A. and the time it arrived in
3rd- Supreme Court REVERSED and SET ASIDE the decision Manila, and the fact that the voyage of the subject
of the CA and decided in favor of Asian Terminals Inc (ATI). cargo from the point of loading to the point of
unloading was 36 days, the shipment could have
definitely lost weight, corresponding to the amount
Issue: Whether or not the ASIAN TERMINALS INC is liable for of moisture it lost during transit.)
the claimed damages of Simon Enterprises.

Issue: No, ATI is not liable. #3. Assuming that the shipment lost weight in
Ratio: The Court in laying down its decision cited the transit due to desorption, the shortage of 199.863 metric tons
Extraordinary Diligence to be exercised by Common Carriers. It that respondent alleges is a minimal 6.05% of the weight of the
noted that entire shipment, which is within the allowable 10% allowance
“Though it is true that common carriers for loss
are presumed to have been at fault or to have acted
negligently if the goods transported by them are
lost, destroyed, or deteriorated, and that the REFERENCES:
common carrier must prove that it exercised
extraordinary diligence in order to overcome the Art. 1734. Common carriers are responsible for the
presumption, the plaintiff must still, before the loss, destruction, or deterioration of the goods, unless the
burden is shifted to the defendant, prove that the same is due to any of the following causes only:
subject shipment suffered actual shortage.”

Accordingly, This can only be done if the weight of (1) Flood, storm, earthquake, lightning, or other
the shipment at the port of origin and its subsequent weight at natural disaster or calamity;
the port of arrival have been proven by a preponderance of
evidence (ito yung quantum of proof na kailangan), and it can (2) Act of the public enemy in war, whether
be seen that the former weight(weight sa PORT OF ORIGIN) is international or civil;
considerably greater than the latter weight(weight sa PORT OF
ARRIVAL), taking into consideration the exceptions provided in
(3) Act or omission of the shipper or owner of the
Article 1734 of the Civil Code.
goods;
The Court ruled that ATI is correct in arguing that the
respondent failed to prove that the subject shipment suffered

JD-2 AUF-SOL MIDTERMS 34

 TORTS AND DAMAGES

(4) The character of the goods or defects in the practicing the specialty, taking into account the
packing or in the containers; advances in the profession.

(5) Order or act of competent public authority. The legal duty to the patient is generally considered to
be that of an average specialist, not that of an average
physian.
Art. 1742. Even if the loss, destruction, or
deterioration of the goods should be caused by the THE CAPTAIN OF THE SHIP DOCTRINE
character of the goods, or the faulty nature of the
packing or of the containers, the common carrier o The doctor cannot blame the assisting nurse for his
must exercise due diligence to forestall or lessen own omission.
the loss. o Under the “captain of the ship” doctrine, the surgeon
is likened to a ship captain who must not only be
responsible for the safety of the crew but also of the
MEDICAL MALPRACTICE/DOCTORS
passengers of the vessel.
o Doctors or physicians are experts, who, because of o The head surgeon is made liable for everything that
their training and the very nature of their work, are goes wrong within the four corners of the operating
required to exercise utmost diligence in the room.
performance of their tasks. o It enunciates the liability of the surgeon not only for
the wrongful acts of those under his physical control
o The action against the doctor is commonly referred to but also those wherein he has extension of control.
as medical malpractice. This is a particular form of o The fact that there is a trend in American
negligence which consists in the failure of a physician jurisprudence to do away with the doctrine does not
or surgeon to apply to his practice of medicine that ipso facto follow said trend. The court must still give
degree of care and skill which is ordinarily employed by regard to the peculiar circumstances obtaining in each
the profession generally under similar conditions, and case to justify the application of the doctrine.
in like surrounding circumstances
NOT WARRANTORS
The doctor must use at least the same level of care o Physicians are not warrantors of cures or insurers
that any reasonably competent doctor would use to against personal injuries or death of the patient.
treat a condition under the same circumstances. o Difficulties and uncertainties in the practice of
Indeed, the standard contemplated is not what is profession are such that no practitioner can guarantee
actually the average merit among all known results. Error of judgment will not necessarily make the
practitioners from the best to the worst and from the physician liable.
most to the least experienced, but the reasonable
average merit among the ordinarily good physicians PROOF
(Reyes v. Sisters of Mercy Hospital, 341 SCRA 760, 769
[2000]). o Expert testimony should be offered to prove that the
circumstances are constitutive of conduct falling below
the standard of care employed by other physicians in
RA 8344: AN ACT PENALIZING THE REFUSAL OF good standing when performing the same operation.
HOSPITALS AND MEDICAL CLINICS TO ADMINISTER o Medical malpractice can also be established by relying
APPROPRIATE INITIAL MEDICAL TREATMENT AND on the doctrine of res ipsa loquitor; in which case the
SUPPORT IN EMERGENCY OR SERIOUS CASES, need of expert testimony is dispensed with because
AMENDING FOR THE PURPOSE BATAS PAMBANSA the injury itself provides the proof of negligence.
BILANG 702, OTHERWISE KNOWN AS "AN ACT (Ramos vs. CA, GR No.124354, December 29, 1999)
PROHIBITING THE DEMAND OF DEPOSITS OR
ADVANCE PAYMENTS FOR THE CONFINEMENT OR Two pronged evidence:
TREATMENT OF PATIENTS IN HOSPITALS AND
MEDICAL CLINICS IN CERTAIN CASES (see special I. Evidence as to the recognized standards of
law) the medical community in the particular
kind of case; and
II. A showing that the physician departed from
STANDARD OF CARE this standard in his treatment.
o General practitioner – The standard of care demanded It is a matter of expert opinion WON a physician or a surgeon has
is ordinary care and diligence in the application of his exercised the requisite degree of skill and care in the treatment of
knowledge and skill in his practice profession. a patient.
o Specialist - A physician who holds himself out as a
specialist should be held to the standard of care and
skill of the average member of the profession

JD-2 AUF-SOL MIDTERMS 35

 TORTS AND DAMAGES

Elements in medical negligence (D-BrIP) Doctrine of Corporate Responsibility

1. Duty to use least the same level of care that any A hospital has the duty to see that it meets the standards of
reasonably prudent doctor would use to treat a responsibilities for the care of patients. Such duty includes
condition under the same circumstances. the proper supervision of the members of its medical staff.
2. Breach of professional duty or improper
performance. Regardless of the hospital’s relationship with doctor, it may
3. Injury is caused to the patient constituting held directly liable for its negligence to follow established
actionable malpractice. standard of conduct to which it should conform as a
4. The doctor’s actions were Proximate cause of the corporation.
patient’s injury
(Li vs Sps. Soliman, Gr No 165279, June 7, 2011) [G.R. No. 130547. October 3, 2000]
LEAH ALESNA REYES, ROSE NAHDJA, JOHNNY, and minors
LIABILITY OF HOSPITALS AND CONSULTANTS LLOYD and KRISTINE, all surnamed REYES,
represented by their mother, LEAH ALESNA
o There is no employer-employee relationship between REYES, petitioners, vs. SISTERS OF MERCY
the hospital and a physician admitted in the said HOSPITAL, SISTER ROSE PALACIO, DR. MARVIE
hospital’s medical staff as an active or visiting BLANES, and DR. MARLYN RICO, respondents.
consultant which would hold the hospital liable MENDOZA, J.:
solidarily liable for the injury suffered by a patient
under Article 2180 of the Civil Code. (Ramos vs. CA GR
No 124354, April 11, 2002)
o The contract between the consultant and the patient is
MEDICAL MALPRACTICE/DOCTORS
separate and distinct the contract between the
hospital and the patient. The first has for its object the MEDICAL MALPRACTICE; DEFINED
rendition of medical services by the consultant to the This is a particular form of negligence which consists in the
patient, while the second concerns the provision by failure of a physician or surgeon to apply to his practice of
the hospital of facilities and services by its staff such as medicine that degree of care and skill which is ordinarily
nurses and laboratory personnel necessary for the employed by the profession generally, under similar
proper treatment of the patient. (Ramos vs. CA GR No conditions, and in like surrounding circumstances. In order
124354, April 11, 2002) to successfully pursue such a claim, a patient must prove
that the physician or surgeon either failed to do something
Res ipsa loquitur applied which a reasonably prudent physician or surgeon would
have done, or that he or she did something that a
o In medical negligence, the doctrine allows the mere reasonably prudent physician or surgeon would not have
existence of an injury to justify a presumption of done, and that the failure or action caused injury to the
negligence on the part of the person who controls the patient. There are thus four elements involved in medical
instrument causing the injury. negligence cases, namely: duty, breach, injury, and
o Medical malpractice can be established by res ipsa proximate causation.
loquitur
o The doctrine is not available if the showing is that the Facts:
desired result of an operation or treatment is not
accomplished.
o Jorge had been suffering from a recurring fever with
chills, he decided to see the doctor. Suspecting that Jorge
Liability of hospitals
could be suffering from this disease, Dr. Rico ordered a
o For the purpose of allocating responsibility in medical Widal Test, a standard test for typhoid fever. Jorge was
positive for typhoid fever.
negligence cases, the existence of Ee-Er relationship in
o Dr. Marvie Blanes took Jorges history and gave him a
effect exists between hospitals and their attending
physical examination. Like Dr. Rico, her impression was
physicians and visiting physicians.
that Jorge had typhoid fever. Antibiotics being the
o Where employment relationship exists, the hospital accepted treatment for typhoid fever, she ordered that
may be held vicariously liable under 2176 in relation to a compatibility test with the antibiotic chloromycetin be
2180 of the Civil Code or the principle of respondeat done on Jorge. As she did not observe any adverse
superior. reaction by the patient to chloromycetin, Dr. Blanes
o When no employment relationship exists but it is ordered the first five hundred milligrams of said
shown that the hospital holds out to the public that antibiotic to be administered on Jorge.
the doctor is its agent, the hospital can be held o Dr. Blanes was called as Jorges temperature rose to 41C.
vicariously liable under 2176 in relation to 1431 and The patient also experienced chills and exhibited
1869 of the Civil Code or the principle of apparent respiratory distress, nausea, vomiting, and convulsions.
authority. Dr. Blanes put him under oxygen, used a suction machine,
and administered hydrocortisone, temporarily easing the
patients convulsions.

JD-2 AUF-SOL MIDTERMS 36

 TORTS AND DAMAGES

o Dr. Blanes re-applied the emergency measures taken establish, before the trial court, that the appellee-physicians
before and, in addition, valium was administered. Jorge, ignored standard medical procedure, prescribed and
however, did not respond to the treatment and slipped administered medication with recklessness and exhibited an
into cyanosis, a bluish or purplish discoloration of the skin absence of the competence and skills expected of general
or mucous membrane due to deficient oxygenation of the practitioners similarly situated.
blood. At around 2:00 a.m., Jorge died.
GENERAL RULE: Expert medical testimony is relied upon in
PLAINTIFF’S CONTENTION: malpractice suits to prove that a physician has done a negligent
Their principal contention was that Jorge did not die of act or that he has deviated from the standard medical
typhoid fever. Instead, his death was due to the wrongful procedure.
administration of chloromycetin. They contended that had
respondent doctors exercised due care and diligence, they WHEN THE DOCTRINE OF RES IPSA LOQUITOR IS AVAILED BY
would not have recommended and rushed the performance THE PLAINTIFF:
of the Widal Test, hastily concluded that Jorge was suffering
from typhoid fever, and administered chloromycetin
without first conducting sufficient tests on the patients The need for expert medical testimony is dispensed with
compatibility with said drug. because the injury itself provides the proof of negligence. The
reason is that the general rule on the necessity of expert
testimony applies only to such matters clearly within the
Issue: Whether the death of Jorge Reyes was due to or caused domain of medical science, and not to matters that are within
by the negligence, carelessness, imprudence, and lack of skill or the common knowledge of mankind which may be testified to
foresight on the part of defendants by anyone familiar with the facts.

Held: No. The court is permitted to find a physician negligent upon

proper proof of injury to the patient, without the aid of expert
Ratio: Dr. Marlyn Rico did not depart from the reasonable testimony, where the court from its fund of common
standard recommended by the experts as she in fact observed knowledge can determine the proper standard of care.
the due care required under the circumstances. Though the
Widal test is not conclusive, it remains a standard diagnostic Ordinarily, only physicians and surgeons of skill and
test for typhoid fever and, in the present case, greater accuracy experience are competent to testify as to whether a patient
through repeated testing was rendered unobtainable by the has been treated or operated upon with a reasonable degree
early death of the patient. The results of the Widal test and the of skill and care. However, testimony as to the statements and
patients history of fever with chills for five days, taken with the acts of physicians and surgeons, external appearances, and
fact that typhoid fever was then prevalent as indicated by the manifest conditions which are observable by any one may be
fact that the clinic had been getting about 15 to 20 typhoid given by non-expert witnesses. Hence, in cases where the res
cases a month, were sufficient to give upon any doctor of ipsa loquitur is applicable, the court is permitted to find a
reasonable skill the impression that Jorge Reyes had typhoid physician negligent upon proper proof of injury to the patient,
fever. without the aid of expert testimony, where the court from its
fund of common knowledge can determine the proper
Dr. Rico was also justified in recommending the standard of care. Where common knowledge and experience
administration of the drug chloromycetin, the drug of choice teach that a resulting injury would not have occurred to the
for typhoid fever. The burden of proving that Jorge Reyes was patient if due care had been exercised, an inference of
suffering from any other illness rested with the petitioners. As negligence may be drawn giving rise to an application of the
they failed to present expert opinion on this, preponderant doctrine of res ipsa loquitur without medical evidence, which
evidence to support their contention is clearly absent. is ordinarily required to show not only what occurred but how
and why it occurred.
That chloromycetin was likewise a proper prescription is best
established by medical authority. Wilson, et. al., in Harrisons All that the patient must do is prove a nexus between the
Principle of Internal Medicine, 12th ed. write that particular act or omission complained of and the injury
chlorampenicol (which is the generic of chloromycetin) is the sustained while under the custody and management of the
drug of choice for typhoid fever and that no drug has yet defendant without need to produce expert medical testimony
proven better in promoting a favorable clinical response. to establish the standard of care.
Chlorampenicol (Chloromycetin) is specifically indicated for
bacterial meningitis, typhoid fever, rickettsial infections, It must be conceded that the doctrine of res ipsa loquitur can
bacteriodes infections, etc. have no application in a suit against a physician or a surgeon
which involves the merits of a diagnosis or of a scientific
What all this means legally is that even if the deceased suffered treatment. The physician or surgeon is not required at his peril
from an anaphylactic shock, this, of itself, would not yet to explain why any particular diagnosis was not correct, or
establish the negligence of the appellee-physicians for all that why any particular scientific treatment did not produce the
the law requires of them is that they perform the standard desired result.
tests and perform standard procedures. The law cannot
require them to predict every possible reaction to all drugs
administered. The onus probandi was on the appellants to

JD-2 AUF-SOL MIDTERMS 37

 TORTS AND DAMAGES

G.R. No. 122445 November 18, 1997 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
DR. NINEVETCH CRUZ, petitioner,
the present state of medical science. In the present case,
vs.
there is absence of any expert testimony on the matter of the
COURT OF APPEALS and LYDIA UMALI, respondents.
standard of care employed by other physicians of good
standing in the conduct of similar operations. The
FRANCISCO, J.: prosecution's expert witnesses in the persons of Dr. Floresto
Arizala and Dr. Nieto Salvador, Jr. of the National Bureau of
Facts: Investigation (NBI) only testified as to the possible cause of
 Lydia Umali was examined by Dr. Cruz who found a death but did not venture to illuminate the court on the
myoma [benign tumor] in her uterus, and scheduled her matter of the standard of care that petitioner should have
for a hysterectomy operation [removal of uterus] on 23 exercised.
Mar 1991. Rowena Umali de Ocampo accompanied her
mother to the hospital a day before the operation, and While it may be true that the circumstances
they spent the night there. pointed out by the courts below seemed beyond cavil to
 Rowena noticed that the clinic was untidy, so she tried constitute reckless imprudence on the part of the surgeon,
to persuade her mother not to proceed with the this conclusion is still best arrived at not through the educated
operation. The following day, Rowena asked Dr. Cruz if surmises nor conjectures of laymen, including judges, but by
the operation could be postponed, but Lydia told her the unquestionable knowledge of expert witnesses. For
daughter that Dr. Cruz said that the operation must go whether a physician or surgeon has exercised the requisite
on as scheduled. degree of skill and care in the treatment of his patient is, in
the generality of cases, a matter of expert opinion. The
 While Lydia's relatives were waiting, Dr. Ercillo
deference of courts to the expert opinion of qualified
(anesthesiologist) told them to buy tagamet ampules,
physicians stems from its realization that the latter possess
and Rowena's sister went out to buy some. An hour
unusual technical skills which laymen in most instances are
later, Dr. Ercillo asked them to buy blood for Lydia, so
incapable of intelligently evaluating. Expert testimony should
they did. A few hours later, the operation was finished,
have been offered to prove that the circumstances cited by
but later, Dr. Cruz asked the family to buy additional
the courts below are constitutive of conduct falling below the
blood, but there was no more type A blood available in
standard of care employed by other physicians in good
the blood bank. A person arrived to donate blood which
standing when performing the same operation. It must be
was later transfused to Lydia. Rowena noticed that her
remembered that when the qualifications of a physician are
mother was gasping for breath--apparently, the oxygen
admitted, as in the instant case, there is an inevitable
supply had run out, so the family went out to buy
presumption that in proper cases he takes the necessary
oxygen. Later in the evening, she went into shock and
precaution and employs the best of his knowledge and skill in
her blood pressure dropped. She was then transferred to
attending to his clients, unless the contrary is sufficiently
another hospital so she could be connected to a
established. This presumption is rebuttable by expert opinion
respirator and further examined. However, this transfer
which is so sadly lacking in the case at bench.
was without the consent of the relatives, who only found
out about it when an ambulance came to take Lydia to
Q: WHAT ABOUT THE CIRCUMSTANTIAL EVIDENCE
the other hospital.
THAT THE PROSECUTION ADDUCED (inadequacy of the
 In the new hospital, she was re-operated upon by Dr.
facilities and untidiness of the clinic; the lack of provisions; the
Cruz and Dr. Ercillo because blood was oozing out from
failure to conduct pre-operation tests on the patient; and the
her incision. They summoned Dr. Angeles, Ob-Gyne head
subsequent transfer of Lydia to the San Pablo Hospital and the
of the new hospital, but when he arrived, Lydia was
reoperation performed on her by the petitioner do indicate) ?
already in shock and possibly dead (BP: 0/0). Dr. Angeles
DOES THAT NOT AMOUNT TO THE PETITIONER’S ACT OF
told Drs. Cruz and Ercillo that there was nothing he could
BEING RECKLESSLY IMPRUDENT EVEN WITHOUT AN EXPERT
do. Lydia died while Dr. Cruz was closing her abdominal
TESTIMONY?
wall. Immediate cause of death is shock; disseminated
intravascular coagulation (DIC) as antecedent cause.
NO, no cogent proof exists that any of these
 Dr. Cruz and Dr. Ercillo were charged with reckless
circumstances caused petitioner's death. Thus, the absence of
imprudence and negligence resulting in homicide of
the fourth element of reckless imprudence: that the injury to
Lydia Umali. The Municipal Trial Court in Cities (MTCC)
the person or property was a consequence of the reckless
found Dr. Ercillo not guilty for insufficiency of evidence
imprudence. In litigations involving medical negligence, the
against her, but held Dr. Cruz responsible for Umali's
plaintiff has the burden of establishing appellant's negligence
death. RTC and CA affirmed MTCC.
and for a reasonable conclusion of negligence, there must be
proof of breach of duty on the part of the surgeon as well as a
Issue: WON Dr. Cruz can be held liable for reckless
causal connection of such breach and the resulting death of
imprudence resulting in homicide pursuant to Art. 365 of the
his patient. As stated in the case of Chan Lugay v. St. Luke's
RPC.
Hospital, Inc,:
“In order that there may be a recovery
Held: NO, BUT SHE WAS HELD CIVILLY LIABLE.
for an injury, however, it must be shown that the
"injury for which recovery is sought must be the
Ratio: Whether or not a physician has committed an
legitimate consequence of the wrong done; the
"inexcusable lack of precaution" in the treatment of his
connection between the negligence and the injury
patient is to be determined according to the standard of care

JD-2 AUF-SOL MIDTERMS 38

 TORTS AND DAMAGES

must be a direct and natural sequence of events, • Petitioner Erlinda Ramos was comatose for almost a decade
unbroken by intervening efficient causes." In other after an operation conducted by Guiterrez
words, the negligence must be the proximate (Anaesthesiologist) and Hosaka (Surgeon)
cause of the injury. For, "negligence, no matter in • Erlinda Ramos died in 1999
what it consists, cannot create a right of action
unless it is the proximate cause of the injury Facts:
complained of ." And "the proximate cause of an
injury is that cause, which, in natural and • Erlinda Ramos was scheduled for an operation to remove a
continuous sequence, unbroken by any efficient stone in her gallbladder in DLSMC
intervening cause, produces the injury, and
• Dr. Hosaka was her Surgeon and he recommended Dra.
without which the result would not have Gutierrez as the Anaesthesiologist
occurred."
• On the day of the operation, Ramos was placed in the
operating room at around 7:30am and was accompanied by
IN here, the findings of all three doctors do not
her sister-in-law Cruz (nurse and dean of College of Nursing)
preclude the probability that DIC caused the hemorrhage and
consequently, Lydia's death. DIC which is a clotting defect • The operation was delayed for more than 3 hours since Dr.
Hosaka arrived at 12 in the afternoon.
creates a serious bleeding tendency and when massive DIC
occurs as a complication of surgery leaving raw surface, major • When Dra. Gutierrez was trying to intubate Ramos, Cruz
hemorrhage occurs. And as testified to by defense witness, Dr. heard her saying “ang hirap ma-intubate into, mali data ang
Bu C. Castro, hemorrhage due to DIC "cannot be prevented, it pagkakapasok…” (Intubate:To put a tube in, commonly
will happen to anyone, anytime." This Court has no recourse used to refer to the insertion of a breathing tube into the
but to rely on the expert testimonies rendered by both trachea for mechanical ventilation.)*Google search
prosecution and defense witnesses that substantiate rather • Ramos then experienced cyanosis (a bluish discoloration of
than contradict petitioner's allegation that the cause of Lydia's the skin resulting from poor circulation or inadequate
death was DIC which, as attested to by an expert witness, oxygenation of the blood.)
cannot be attributed to the petitioner's fault or negligence. • Since the operation was not going well, Dr. Hosaka called
The probability that Lydia's death was caused by DIC was another anaesthesiologist, Dr. Calderon who put Ramos in
unrebutted during trial and has engendered in the mind of trendelenburg position
this Court a reasonable doubt as to the petitioner's guilt. Thus, • At 3pm Cruz was being transferred to ICU, comatose.
her acquittal of the crime of reckless imprudence resulting in • RTC favored Ramos holding Doctors Hosaka and Gutierrez
homicide. While we condole with the family of Lydia Umali, negligent,C.A reversed the decision.
our hands are bound by the dictates of justice and fair dealing • SC’s 1st Decision favored Ramos holding that the failure of
which hold inviolable the right of an accused to be presumed the intubation was the proximate cause of Ramos’ coma.
innocent until proven guilty beyond reasonable doubt. hence this move for reconsideration
Nevertheless, this Court finds the petitioner civilly liable for
the death of Lydia Umali, for while a conviction of a crime Issue:
requires proof beyond reasonable doubt, only a
preponderance of evidence is required to establish civil 1. WON Dra. Gutierrez is negligent and liable for damages
liability.
2. WON Dr. Hosaka is negligent and liable for damages
NOTES 3. WON DSLMC should be held liable
ELEMENTS OF RECKLESS IMPRUDENCE:
(1) that the offender does or fails to do an act; HELD:
(2) that the doing or the failure to do that act is
voluntary; 1. YES, YES
(3) that it be without malice; 2. YES, YES
(4) that material damage results from the reckless 3. NO
imprudence; and
(5) that there is inexcusable lack of precaution on Ratio:
the part of the offender, taking into consideration
his employment or occupation, degree of Dra. Gutierrez
intelligence, physical condition, and other
circumstances regarding persons, time and place. • Her Contentions:
• The outcome of her operation was a comatose person
and not a dead one
Ramos vs. C.A • That there was a cardiac arrest
G.R No. 124354 11 April 2002 • That the patient was revived by that cardiac arrest
Kapunan, J.:
• Supreme Court
• The SC stated that Dra’s claim is belied of the records of
Background of the Case: the case
1. It was established that Dra. Gutierrez did not
• This is a case for reconsideration of the Decision of the SC follow the SOP of Anaesthesiologist whenever
holding Respondents Guiterrez and Hosaka there is an operation

JD-2 AUF-SOL MIDTERMS 39

 TORTS AND DAMAGES

2. Every operation anaesthesiologist should • The court noted with the preceding reasons that they were
conduct pre-operative medications to prepare not certainly not completely independent of each other so
the patient of the future operation and to give as to absolve one from, the negligent acts of the other
the doctors of any medical history and physician
condition of the patient to determine what • The court also noted that one of the reasons of Ramos’
techniques will be use on the administration coma was his delayed in reporting to office, Ramos
of the anaesthesia experienced anxiety waiting for Dr. Hosaka to arrived,
3. All procedures and steps should be Ramos was still in the operating room, tired without food or
documented drinks, certainly the delay in the operation contributed in
The court noted that the conduct of pre-operative the Coma of Pet. Ramos.
•
evaluation prior to an operation, whether elective or
emergency, cannot be dispensed with As to the DLSMC
• Dra. Gutierrez did not conduct any Pre-operative
procedure, no prior consultations and evaluation was • it was not established that DLSMC was an employer of the
conducted by Dra. Gutierrez physician
• The act of Dra. Gutierrez was considered by the court • There is a different contract between the patient and
as a clear indicia of her negligence and therefore an doctor and rel.between patient and the hospital
act of exceptional negligence and professional • The Hospital does not receive any share on every operation
irresponsibility conducted in their hospital
• It was also noted that the synopsis submitted by Dra.
Gutierrez did not have all the details, which requires
informations on every step of Dra. Gutierrez G.R. No. 124354 December 29, 1999
• It was also proven that the absence of oxygen of
Ramos for about 5 mins that caused Ramos’ coma, the
ROGELIO E. RAMOS and ERLINDA RAMOS, in their own
same time where Dra. Gutierrez failed to log in her
behalf and as natural guardians of the minors, ROMMEL
synopsis
RAMOS, ROY RODERICK RAMOS and RON RAYMOND
• The court applied res ipsa locator: the injury to the
RAMOS, petitioners,
patient therein was one which does not ordinarily
vs.
take place in the absence of negligence in the
COURT OF APPEALS, DELOS SANTOS MEDICAL CENTER, DR.
administration of an anaesthetic, and the use and
ORLINO HOSAKA and DRA. PERFECTA GUTIERREZ,
employment of an endotracheal tube
respondents.
- a layman would be able to say, as a matter of
common knowledge and observation, that the
consequence of professional treatment were The Hippocratic Oath mandates physicians to give primordial
not as such as would ordinarily have followed if consideration to the health and welfare of their patients. If a
due care had been exercised, doctor fails to live up to this precept, he is made accountable
for his acts. A mistake, through gross negligence or
As to Dr. Hosaka incompetence or plain human error, may spell the difference
between life and death. In this sense, the doctor plays God on
Hosaka’s Claims: his patient's fate.

• That there is a jurisprudence in US that abandons the Facts:

doctrine of “Captain of the Ship,” which was the basis of his
liability in the SC’s 1st decision
 Plaintiff Erlinda Ramos a 47-year old robust woman.
• That he being a surgeon has no control over Dra. Gutierrez
as the anaesthesiologist Except for occasional complaints of discomfort due to
pains allegedly caused by the presence of a stone in her
• That as surgeon, he has different and distinct task in the
operation and cannot interrupt other specialist in the gall bladder, she was as normal as any other woman.
operating room Married to Rogelio E. Ramos, an executive of PLDT
Company, she has three children whose names are
Supreme Court Rommel Ramos, Roy Roderick Ramos and Ron Raymond
Ramos.
• The court noted that the abandonment of the US of the  Because the discomforts somehow interfered with her
Doctrine of “Captain of the Ship” does not necessarily mean normal ways, she sought professional advice. She was
that the SC should follow the trend advised to undergo an operation for the removal of a
• The court held Dr. Hosaka liable for the following reasons: stone in her gall bladder.
 Through the intercession of a mutual friend, Dr.
2. It was Dr. Hosaka who referred Dra. Gutierrez to Ramos Buenviaje, she and her husband Rogelio met for the first
3. Dr. Hosaka was the surgeon of Ramos, and it was time Dr. Orlino Hozaka. They agreed that their date at
admitted that he was the one who called the other the operating table at the DLSMC (another defendant),
physician, hence Dr. Hosaka was control over the would be on June 17, 1985 at 9:00 A.M. Dr. Hosaka
operation of Dra. Gutierrez decided that she should undergo a "cholecystectomy"
4. The Hosaka and Gutierrez worked as a team operation after examining the documents presented to
him. Rogelio E. Ramos, however, asked Dr. Hosaka to
look for a good anesthesiologist. Dr. Hosaka, in turn,

JD-2 AUF-SOL MIDTERMS 40

 TORTS AND DAMAGES

assured Rogelio that he will get a good anesthesiologist. Ratio:

Dr. Hosaka charged a fee of P16,000.00, which was to RES IPSA LOQUITUR: is a Latin phrase which literally means
include the anesthesiologist's fee and which was to be "the thing or the transaction speaks for itself." The phrase "res
paid after the operation. ipsa loquitur'' is a maxim for the rule that the fact of the
 At around 7:30 A.M. of June 17, 1985 and while still in occurrence of an injury, taken with the surrounding
her room, she was prepared for the operation by the circumstances, may permit an inference or raise a
hospital staff. She was accompanied by her sister-in-law, presumption of negligence, or make out a plaintiff's prima
Herminda Cruz, who was the Dean of the College of facie case, and present a question of fact for defendant to
Nursing at the Capitol Medical Center. meet with an explanation. 13 Where the thing which caused
 At around 9:30 A.M., Dr. Gutierrez reached a nearby the injury complained of is shown to be under the
phone to look for Dr. Hosaka who was not yet in. Dr. management of the defendant or his servants and the
Gutierrez thereafter informed Herminda Cruz about the accident is such as in ordinary course of things does not
prospect of a delay in the arrival of Dr. Hosaka. happen if those who have its management or control use
 At about 12:15 P.M., Dr. Osaka arrived, Dr. Gutierrez was proper care, it affords reasonable evidence, in the absence of
intubating the hapless patient. She thereafter heard Dr. explanation by the defendant, that the accident arose from or
Gutierrez say, "ang hirap ma-intubate nito, mali yata ang was caused by the defendant's want of care. 14
pagkakapasok. O lumalaki ang tiyan”
 Dr. Hosaka issued an order for someone to call Dr. The doctrine of res ipsa loquitur is simply a recognition of the
Calderon, another anesthesiologist. After Dr. Calderon postulate that, as a matter of common knowledge and
arrived at the operating room, she saw this experience, the very nature of certain types of occurrences
anesthesiologist trying to intubate the patient. may justify an inference of negligence on the part of the
Immediately thereafter, she went out of the operating person who controls the instrumentality causing the injury in
room, and she told Rogelio E. Ramos "that something the absence of some explanation by the defendant who is
wrong was . . . happening". Dr. Calderon was then able charged with negligence. 15 It is grounded in the superior logic
to intubate the patient. of ordinary human experience and on the basis of such
 About two days thereafter, Rogelio E. Ramos was able to experience or common knowledge, negligence may be
talk to Dr. Hosaka. The latter informed the former that deduced from the mere occurrence of the accident itself. 16
something went wrong during the intubation. Reacting Hence, res ipsa loquitur is applied in conjunction with the
to what was told to him, Rogelio reminded the doctor doctrine of common knowledge.
that the condition of his wife would not have happened,
had he (Dr. Hosaka) looked for a good anesthesiologist.
However, much has been said that res ipsa loquitur is not a
Petitioner - Incurred hospital bills amounting to P93,542.25 rule of substantive law and, as such, does not create or
which is the subject of a promissory note and affidavit of constitute an independent or separate ground of liability. 17
undertaking executed by Rogelio E. Ramos in favor of DLSMC. Instead, it is considered as merely evidentiary or in the nature
She has been in a comatose condition. She cannot do of a procedural rule. 18 It is regarded as a mode of proof, or a
anything. She cannot move any part of her body. She cannot mere procedural of convenience since it furnishes a substitute
see or hear. She is living on mechanical means. She suffered for, and relieves a plaintiff of, the burden of producing specific
brain damage as a result of the absence of oxygen in her brain proof of negligence. 19 In other words, mere invocation and
for four to five minutes. After being discharged from the application of the doctrine does not dispense with the
hospital, she has been staying in their residence, still needing requirement of proof of negligence. It is simply a step in the
constant medical attention, with her husband Rogelio process of such proof, permitting the plaintiff to present along
incurring a monthly expense ranging from P8,000.00 to with the proof of the accident, enough of the attending
P10,000.00. She was also diagnosed to be suffering from circumstances to invoke the doctrine, creating an inference or
"diffuse cerebral parenchymal damage" presumption of negligence, and to thereby place on the
defendant the burden of going forward with the proof. 20 Still,
before resort to the doctrine may be allowed, the following
 Petitioners filed a civil case 6 for damages with the requisites must be satisfactorily shown:
Regional Trial Court of Quezon City against herein
private respondents alleging negligence in the
management and care of Erlinda Ramos. 1. The accident is of a kind which ordinarily does
not occur in the absence of someone's negligence;

RTC - ruled in favor of the petitioners, holding the defendants

guilty of, at the very least, negligence in the performance of 2. It is caused by an instrumentality within the
their duty. exclusive control of the defendant or defendants;
and
CA – on appeal the said decision was reversed – dismissing the
complaint against the defendants. Hence this petition. 3. The possibility of contributing conduct which
would make the plaintiff responsible is eliminated.
Issue: WON a surgeon, an anesthesiologist and a hospital
should be made liable for the unfortunate comatose condition
Although generally, expert medical testimony is relied upon in
of a patient scheduled for cholecystectomy.
malpractice suits to prove that a physician has done a
negligent act or that he has deviated from the standard
Held: Yes
medical procedure, when the doctrine of res ipsa loquitur is
availed by the plaintiff, the need for expert medical testimony

JD-2 AUF-SOL MIDTERMS 41

 TORTS AND DAMAGES

is dispensed with because the injury itself provides the proof temporomandibular mobility, prominent central incisors,
of negligence. The reason is that the general rule on the diseased or artificial teeth, ability to visualize uvula and the
necessity of expert testimony applies only to such matters thyromental distance.
clearly within the domain of medical science, and not to
matters that are within the common knowledge of mankind
In the case at bar, respondent Dra. Gutierrez admitted that
which may be testified to by anyone familiar with the facts.
she saw Erlinda for the first time on the day of the operation
When the doctrine is appropriate, all that the patient must do
itself, on 17 June 1985. Before this date, no prior
is prove a nexus between the particular act or omission
consultations with, or pre-operative evaluation of Erlinda was
complained of and the injury sustained while under the
done by her. Until the day of the operation, respondent Dra.
custody and management of the defendant without need to
Gutierrez was unaware of the physiological make-up and
produce expert medical testimony to establish the standard of
needs of Erlinda. She was likewise not properly informed of
care. Resort to res ipsa loquitur is allowed because there is no
the possible difficulties she would face during the
other way, under usual and ordinary conditions, by which the
administration of anesthesia to Erlinda. Respondent Dra.
patient can obtain redress for injury suffered by him.
Gutierrez' act of seeing her patient for the first time only an
hour before the scheduled operative procedure was,
We find the doctrine of res ipsa loquitur appropriate in the therefore, an act of exceptional negligence and professional
case at bar. As will hereinafter be explained, the damage irresponsibility. The measures cautioning prudence and
sustained by Erlinda in her brain prior to a scheduled gall vigilance in dealing with human lives lie at the core of the
bladder operation presents a case for the application of res physician's centuries-old Hippocratic Oath. Her failure to
ipsa loquitur. follow this medical procedure is, therefore, a clear indicia of
her negligence.
In the present case, Erlinda submitted herself for
cholecystectomy and expected a routine general surgery to be Having failed to observe common medical standards in pre-
performed on her gall bladder. On that fateful day she operative management and intubation, respondent Dra.
delivered her person over to the care, custody and control of Gutierrez' negligence resulted in cerebral anoxia and eventual
private respondents who exercised complete and exclusive coma of Erlinda.
control over her. At the time of submission, Erlinda was
neurologically sound and, except for a few minor discomforts,
Dr. Hosaka, being the head of the surgical team (“captain of
was likewise physically fit in mind and body. However, during
the ship”), it was his responsibility to see to it that those
the administration of anesthesia and prior to the performance
under him perform their task in the proper manner.
of cholecystectomy she suffered irreparable damage to her
Respondent Dr. Hosaka's negligence can be found in his failure
brain. Thus, without undergoing surgery, she went out of the
to exercise the proper authority (as the "captain" of the
operating room already decerebrate and totally incapacitated.
operative team) in not determining if his anesthesiologist
Obviously, brain damage, which Erlinda sustained, is an injury
observed proper anesthesia protocols. In fact, no evidence on
which does not normally occur in the process of a gall bladder
record exists to show that respondent Dr. Hosaka verified if
operation. In fact, this kind of situation does not in the
respondent Dra. Gutierrez properly intubated the patient.
absence of negligence of someone in the administration of
Furthermore, it does not escape us that respondent Dr.
anesthesia and in the use of endotracheal tube. Normally, a
Hosaka had scheduled another procedure in a different
person being put under anesthesia is not rendered
hospital at the same time as Erlinda's cholecystectomy, and
decerebrate as a consequence of administering such
was in fact over three hours late for the latter's operation.
anesthesia if the proper procedure was followed.
Because of this, he had little or no time to confer with his
Furthermore, the instruments used in the administration of
anesthesiologist regarding the anesthesia delivery. This
anesthesia, including the endotracheal tube, were all under
indicates that he was remiss in his professional duties towards
the exclusive control of private respondents, who are the
his patient. Thus, he shares equal responsibility for the events
physicians-in-charge. Likewise, petitioner Erlinda could not
which resulted in Erlinda's condition.
have been guilty of contributory negligence because she was
under the influence of anesthetics which rendered her
unconscious. Notwithstanding the general denial made by respondent
hospital to the effect that the respondent doctors (referred to
as “consultants”) in this case are not their employees, there is
We disagree with the findings of the Court of Appeals. We
a showing that the hospital exercises significant control in the
hold that private respondents were unable to disprove the
hiring and firing of consultants and in the conduct of their
presumption of negligence on their part in the care of Erlinda
work within the hospital premises.
and their negligence was the proximate cause of her piteous
condition.
The basis for holding an employer solidarily responsible for
the negligence of its employee is found in Article 2180 of the
Dr. Gutierrez (anesthesiologist) is held liable for failure to
Civil Code which considers a person accountable not only for
perform the necessary pre-operative evaluation which
his own acts but also for those of others based on the former's
includes taking the patient's medical history, review of current
responsibility under a relationship of patria potestas. Such
drug therapy, physical examination and interpretation of
responsibility ceases when the persons or entity concerned
laboratory data. This physical examination performed by the
prove that they have observed the diligence of a good father
anesthesiologist is directed primarily toward the central
of the family to prevent damage. In other words, while the
nervous system, cardiovascular system, lungs and upper
burden of proving negligence rests on the plaintiffs, once
airway. A thorough analysis of the patient's airway normally
negligence is shown, the burden shifts to the respondents
involves investigating the following: cervical spine mobility,

JD-2 AUF-SOL MIDTERMS 42

 TORTS AND DAMAGES

(parent, guardian, teacher or employer) who should prove Ampil then recommended that she consult an oncologist
that they observed the diligence of a good father of a family to examine the cancerous nodes which were not
to prevent damage. removed during the operation.
o On May 9, 1984, Natividad, accompanied by her
husband, went to the United States to seek further
In the instant case, respondent hospital, apart from a general
treatment. After four months of consultations and
denial of its responsibility over respondent physicians, failed
laboratory examinations, Natividad was told she was
to adduce evidence showing that it exercised the diligence of
free of cancer. Hence, she was advised to return to the
a good father of a family in the hiring and supervision of the
Philippines.
latter. It failed to adduce evidence with regard to the degree
o On August 31, 1984, Natividad flew back to the
of supervision which it exercised over its physicians. In
Philippines, still suffering from pains. Two weeks
neglecting to offer such proof, or proof of a similar nature,
thereafter, her daughter found a piece of gauze
respondent hospital thereby failed to discharge its burden
protruding from her vagina. Upon being informed about
under the last paragraph of Article 2180. Having failed to do
it, Dr. Ampil proceeded to her house where he managed
this, respondent hospital is consequently solidarily responsible
to extract by hand a piece of gauze measuring 1.5 inches
with its physicians for Erlinda's condition.
in width. He then assured her that the pains would soon
vanish.
o Dr. Ampil’s assurance did not come true. Instead, the
G.R. No. 126297 January 31, 2007 pains intensified, prompting Natividad to seek treatment
at the Polymedic General Hospital. While confined there,
PROFESSIONAL SERVICES, INC., Petitioner, Dr. Ramon Gutierrez detected the presence of another
vs. foreign object in her vagina -- a foul-smelling gauze
NATIVIDAD and ENRIQUE AGANA, Respondents. measuring 1.5 inches in width which badly infected her
vaginal vault. A recto-vaginal fistula had formed in her
reproductive organs which forced stool to excrete
DECISION
through the vagina. Another surgical operation was
needed to remedy the damage. Thus, in October 1984,
SANDOVAL-GUTIERREZ, J.: Natividad underwent another surgery.
o On November 12, 1984, Natividad and her husband filed
Facts: with the RTC, Branch 96, Quezon City a complaint for
damages against the Professional Services, Inc. (PSI),
owner of the Medical City Hospital, Dr. Ampil, and Dr.
o On April 4, 1984, Natividad Agana was rushed to the Fuentes, docketed as Civil Case No. Q-43322. They
Medical City General Hospital (Medical City Hospital) alleged that the latter are liable for negligence for
because of difficulty of bowel movement and bloody leaving two pieces of gauze inside Natividad’s body and
anal discharge. After a series of medical examinations, malpractice for concealing their acts of negligence.
Dr. Miguel Ampil, petitioner in G.R. No. 127590, o On February 16, 1986, pending the outcome of the
diagnosed her to be suffering from "cancer of the above cases, Natividad died and was duly substituted by
sigmoid." her above-named children (the Aganas).
o On April 11, 1984, Dr. Ampil, assisted by the medical o On March 17, 1993, the RTC rendered its Decision in
staff4 of the Medical City Hospital, performed an anterior favor of the Aganas, finding PSI, Dr. Ampil and Dr.
resection surgery on Natividad. He found that the Fuentes liable for negligence and malpractice.
malignancy in her sigmoid area had spread on her left o Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an
ovary, necessitating the removal of certain portions of it. appeal to the Court of Appeals, docketed as CA-G.R. CV
Thus, Dr. Ampil obtained the consent of Natividad’s No. 42062.
husband, Enrique Agana, to permit Dr. Juan Fuentes, o Meanwhile, on January 23, 1995, the PRC Board of
respondent in G.R. No. 126467, to perform Medicine rendered its Decision6 in Administrative Case
hysterectomy on her. No. 1690 dismissing the case against Dr. Fuentes. The
o After Dr. Fuentes had completed the hysterectomy, Dr. Board held that the prosecution failed to show that Dr.
Ampil took over, completed the operation and closed Fuentes was the one who left the two pieces of gauze
the incision. inside Natividad’s body; and that he concealed such
o However, the operation appeared to be flawed. In the fact from Natividad.
corresponding Record of Operation dated April 11, 1984, o On September 6, 1996, the Court of Appeals rendered its
the attending nurses entered these remarks: Decision:

"sponge count lacking 2 WHEREFORE, except for the modification

that the case against defendant-appellant
"announced to surgeon searched (sic) done Dr. Juan Fuentes is hereby DISMISSED, and
but to no avail continue for closure." with the pronouncement that defendant-
appellant Dr. Miguel Ampil is liable to
reimburse defendant-appellant Professional
o After a couple of days, Natividad complained of Services, Inc., whatever amount the latter will
excruciating pain in her anal region. She consulted both pay or had paid to the plaintiffs-appellees,
Dr. Ampil and Dr. Fuentes about it. They told her that
the pain was the natural consequence of the surgery. Dr.

JD-2 AUF-SOL MIDTERMS 43

 TORTS AND DAMAGES

the decision appealed from is hereby operation. Had he been more candid, Natividad could have
AFFIRMED and the instant appeal DISMISSED. taken the immediate and appropriate medical remedy to
remove the gauzes from her body. To our mind, what was
initially an act of negligence by Dr. Ampil has ripened into a
Issues:
deliberate wrongful act of deceiving his patient.

I. Whether the Court of Appeals erred in holding Dr. Ampil

This is a clear case of medical malpractice or more
liable for negligence and malpractice (Main Issue)
appropriately, medical negligence. To successfully pursue this
kind of case, a patient must only prove that a health care
II. Whether the Court of Appeals erred in absolving Dr. provider either failed to do something which a reasonably
Fuentes of any liability. prudent health care provider would have done, or that he did
something that a reasonably prudent provider would not have
III. Whether PSI may be held solidarily liable for the negligence done; and that failure or action caused injury to the
of Dr. Ampil. patient. Simply put, the elements are duty, breach, injury and
proximate causation. Dr, Ampil, as the lead surgeon, had the
duty to remove all foreign objects, such as gauzes, from
Ratio: Natividad’s body before closure of the incision. When he
failed to do so, it was his duty to inform Natividad about it.
I. Whether the Court of Appeals Erred in Holding Dr. Ampil Dr. Ampil breached both duties. Such breach caused injury to
liable for Negligence and Malpractice. (Main Issue) Natividad, necessitating her further examination by American
doctors and another surgery. That Dr. Ampil’s negligence is
the proximate cause of Natividad’s injury could be traced
The glaring truth is that all the major circumstances, taken from his act of closing the incision despite the information
together, as specified by the Court of Appeals, directly point given by the attending nurses that two pieces of gauze were
to Dr. Ampil as the negligent party, thus: still missing. That they were later on extracted from
Natividad’s vagina established the causal link between Dr.
First, it is not disputed that the surgeons used Ampil’s negligence and the injury. And what further
gauzes as sponges to control the bleeding of the aggravated such injury was his deliberate concealment of the
patient during the surgical operation. missing gauzes from the knowledge of Natividad and her
family.
Second, immediately after the operation, the
nurses who assisted in the surgery noted in their II. Whether the Court of Appeals Erred in Absolving Dr.
report that the ‘sponge count (was) lacking 2’; that Fuentes of any Liability
such anomaly was ‘announced to surgeon’ and that
a ‘search was done but to no avail’ prompting Dr. The Aganas assailed the dismissal by the trial court of the case
Ampil to ‘continue for closure’ x x x. against Dr. Fuentes on the ground that it is contrary to the
doctrine of res ipsa loquitur. According to them, the fact that
Third, after the operation, two (2) gauzes were the two pieces of gauze were left inside Natividad’s body is a
extracted from the same spot of the body of Mrs. prima facie evidence of Dr. Fuentes’ negligence.
Agana where the surgery was performed.
We are not convinced.
An operation requiring the placing of sponges in the incision
is not complete until the sponges are properly removed, and Literally, res ipsa loquitur means "the thing speaks for itself."
it is settled that the leaving of sponges or other foreign Where the thing which caused the injury, without the fault of
substances in the wound after the incision has been closed is the injured, is under the exclusive control of the defendant
at least prima facie negligence by the operating surgeon. To and the injury is such that it should not have occurred if he,
put it simply, such act is considered so inconsistent with due having such control used proper care, it affords reasonable
care as to raise an inference of negligence. There are even evidence, in the absence of explanation that the injury arose
legions of authorities to the effect that such act is negligence from the defendant’s want of care, and the burden of proof is
per se. shifted to him to establish that he has observed due care and
diligence.
Even if it has been shown that a surgeon was required by the
urgent necessities of the case to leave a sponge in his From the foregoing statements of the rule, the requisites for
patient’s abdomen, because of the dangers attendant upon the applicability of the doctrine of res ipsa loquitur are: (1)
delay, still, it is his legal duty to so inform his patient within a the occurrence of an injury; (2) the thing which caused the
reasonable time thereafter by advising her of what he had injury was under the control and management of the
been compelled to do. This is in order that she might seek defendant; (3) the occurrence was such that in the ordinary
relief from the effects of the foreign object left in her body course of things, would not have happened if those who had
as her condition might permit. control or management used proper care; and (4) the
absence of explanation by the defendant. Of the foregoing
Here, Dr. Ampil did not inform Natividad about the missing
two pieces of gauze. Worse, he even misled her that the pain
she was experiencing was the ordinary consequence of her

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 TORTS AND DAMAGES

requisites, the most instrumental is the "control and those of persons for whom one is
management of the thing which caused the injury." responsible.

We find the element of "control and management of the thing The owners and managers of an establishment or enterprise
which caused the injury" to be wanting. Hence, the doctrine of are likewise responsible for damages caused by their
res ipsa loquitur will not lie. employees in the service of the branches in which the latter
are employed or on the occasion of their functions.
It was duly established that Dr. Ampil was the lead surgeon
during the operation of Natividad. He requested the Employers shall be liable for the damages caused by their
assistance of Dr. Fuentes only to perform hysterectomy when employees and household helpers acting within the scope of
he (Dr. Ampil) found that the malignancy in her sigmoid area their assigned tasks even though the former are not engaged
had spread to her left ovary. Dr. Fuentes performed the in any business or industry.
surgery and thereafter reported and showed his work to Dr.
Ampil. The latter examined it and finding everything to be in
The responsibility treated of in this article shall cease when
order, allowed Dr. Fuentes to leave the operating room. Dr.
the persons herein mentioned prove that they observed all
Ampil then resumed operating on Natividad. He was about to
the diligence of a good father of a family to prevent damage.
finish the procedure when the attending nurses informed him
that two pieces of gauze were missing. A "diligent search" was
conducted, but the misplaced gauzes were not found. Dr. In the present case, it was duly established that PSI operates
Ampil then directed that the incision be closed. During this the Medical City Hospital for the purpose and under the
entire period, Dr. Fuentes was no longer in the operating concept of providing comprehensive medical services to the
room and had, in fact, left the hospital. 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
Under the "Captain of the Ship" rule, the operating surgeon is
the person in complete charge of the surgery room and all
personnel connected with the operation. Clearly, the control It is worthy to note that Dr. Ampil and Dr. Fuentes operated
and management of the thing which caused the injury was in on Natividad with the assistance of the Medical City Hospital’s
the hands of Dr. Ampil, not Dr. Fuentes. staff, composed of resident doctors, nurses, and interns. As
such, it is reasonable to conclude that PSI, as the operator of
the hospital, has actual or constructive knowledge of the
In this jurisdiction, res ipsa loquitur is not a rule of substantive
procedures carried out, particularly the report of the
law, hence, does not per se create or constitute an
attending nurses that the two pieces of gauze were missing.
independent or separate ground of liability, being a mere
evidentiary rule.17 In other words, mere invocation and
application of the doctrine does not dispense with the Thus, PSI is solidarily liable with Dr. Ampil for damages, let it
requirement of proof of negligence. Here, the negligence was be emphasized that PSI, apart from a general denial of its
proven to have been committed by Dr. Ampil and not by Dr. responsibility, failed to adduce evidence showing that it
Fuentes. exercised the diligence of a good father of a family in the
accreditation and supervision of the latter. In neglecting to
offer such proof, PSI failed to discharge its burden under the
III. Whether PSI Is Liable for the Negligence of Dr. Ampil
last paragraph of Article 2180 cited earlier, and, therefore,
must be adjudged solidarily liable with Dr. Ampil. Moreover,
In this jurisdiction, the statute governing liability for negligent as we have discussed, PSI is also directly liable to the Aganas.
acts is Article 2176 of the Civil Code, which reads:
Costs against petitioners PSI and Dr. Miguel Ampil.
Art. 2176. Whoever by act or omission
causes damage to another, there being
SO ORDERED.
fault or negligence, is obliged to pay for
the damage done. Such fault or
negligence, if there is no pre-existing
contractual relation between the Rubi Li v. Sps. Reynaldo and Lina Soliman
parties, is called a quasi-delict and is GR No. 165279 June 7, 2011
governed by the provisions of this Villarama, Jr., J:
Chapter.
Facts:
o Angelica Soliman, daughter of respondents, suffered
A derivative of this provision is Article 2180, the rule osteosarcoma (a high-grade cancer of the bone which
governing vicarious liability under the doctrine of respondeat usually afflicts teenage children. Her right leg was
superior, thus: amputated. Dr. Rubi Li then suggested that Angelica
undergo chemotherapy to eliminate any remaining
ART. 2180. The obligation imposed by cancer cells. She told the respondents that the side
Article 2176 is demandable not only for effects of chemotherapy would only be slight vomiting,
one’s own acts or omissions, but also for hair loss and weakness. Just 11 days after the
chemotherapy, Angelica died. Respondents filed a case
against Dr. Li for negligence and disregard of Angelica’s

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 TORTS AND DAMAGES

health, safety and welfare by their careless 1. The physician had the duty to disclose
administration of the chemotherapy drugs, their failure material risks;
to observe the essential precautions in detecting early 2. He failed to disclose or inadequately
the symptoms of fatal blood platelet decrease and disclosed those risks;
stopping early on the chemotherapy. According to 3. As a direct and proximate result of the failure
respondents, had Dr. Li revealed to them all the side to disclose, the patient consented to the
effects of chemotherapy, they would not have treatment she otherwise would not have
consented to it. consented to; and
4. Plaintiff was injured by the proposed
o Both the trial court and Court of Appeals found that treatment.
there was no negligence in the administration of drugs
during the chemotherapy. However, the CA found that
Dr. Li failed to fully explain to the respondents ALL* the LAWYERS
known side effects of chemotherapy.
Cannon 18.03 provides that a lawyer shall not neglect a legal
Issue: Whether or not the petitioner Dr. Rubi Li can be matter entrusted to him and his negligence in connection
held liable for failure to fully disclose serious side therewith shall render him liable.
effects to the parents of the Angelica who died
while undergoing chemotherapy, despite the However, it was explained by the Supreme Court that “an
absence of finding that petitioner was negligent in attorney is not bound to exercise extraordinary diligence, but only
administering said treatment. a reasonable degree of care and skill, having reference to the
character of the business he undertakes to do. Prone to err like
Held: No, Dr. Rubi Li cannot be held liable. any other human being, he is not answerable to every error or
mistake, and will be protected as long as he acts honestly and in
Ratio: Cobbs v. Grant further reiterated the
good faith to the best of his skill and knowledge.” (Adarne vs.
pronouncement in Canterbury v. Spence that for
Aldaba, 83 SCRA 734, 739 [1978]).
liability of the physician for failure to inform
patient, there must be causal relationship between
physicians failure to inform and the injury to Atienza vs. Evangelista (80 SCRA 338, 341-342
patient and such connection arises only if it is [1977])
established that, had revelation been made,
consent to treatment would not have been given. “It would be to place an intolerable burden on a
Examining the evidence on record, we hold that member of the bar if just because a client failed
there was adequate disclosure of material risks to obtain what is sought by her after due exertion
inherent in the chemotherapy procedure of the required effort on his part, he would be held
performed with the consent of Angelica’s accountable. Success in a litigation is certainly not
parents. Respondents could not have been the test of whether or not a lawyer had lived up to
unaware in the course of initial treatment and his duties to a client. It is enough that with the
amputation of Angelica’s lower extremity, that her thorough preparation of the case handled by him,
immune system was already weak on account of he had taken all the steps to prosecute his suit. If
the malignant tumor in her knee. When petitioner thereafter the result would be the frustration of his
informed the respondents beforehand of the side client’s hopes, that is, a cause for his
effects of chemotherapy which includes lowered disappointment, no doubt for him no less than for
counts of white and red blood cells, decrease in his client, but not for displeasing action. He is more
blood platelets, possible kidney or heart damage to be sympathized with than condemned — on the
and skin darkening, there is reasonable expectation assumption of course that he did what was
on the part of the doctor that the respondents expected of him.”
understood very well that the severity of these side
effects will not be the same for all patients
undergoing the procedure. In other words, by the MA. LIZA FRANCO-CRUZ vs. THE COURT OF APPEALS, VICTORY
nature of the disease itself, each patient’s reaction LINER, INC., MARITES M. GANELO, CATHERINE C. SANTOS, and
to the chemical agents even with pre-treatment MA. THERESA Q. FABIAN, G.R. No. 172238
laboratory tests cannot be precisely determined by
the physician. That death can possibly result from
complications of the treatment or the underlying PONENTE: CARPIO MORALES, J.:
cancer itself, immediately or sometime after the
administration of chemotherapy drugs, is a risk SHORT VERSION: It was alleged that Franco Cruz was the
that cannot be ruled out, as with most other major registered owner of Franco Transit whose bus was involved in
medical procedures, but such conclusion can be an accident resulting in the death of five individuals, damages
reasonably drawn from the general side effects of were filed against her while she was contending that she was
chemotherapy already disclosed. not the party in interest, she and her counsel failed to appear
during the pre- trial and was declared to be in default, TC ruled
Four essential elements in medical malpractice against Franco – Cruz on her MR she sought the court to allow
based upon the doctrine of informed consent: her to present evidence to prove that she was not the owner
and operator of FRANCO TRANSIT, this was denied. Decision of
the Court was received by her counsel on April 29, 1998, she

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 TORTS AND DAMAGES

filed the MR 18 days after such receipt. MR was denied due to this rule: (1) where reckless or gross negligence of counsel
the fact that it was filed out of time. Issue is whether or not deprives the client of due process of law; (2) when its application
negligence of her counsel binds Franco Cruz. (See Ratio below) will result in outright deprivation of the client’s liberty or
property; or (3) where the interests of justice require. In the case
LONG VERSION: at bar, the application of the rule would result in petitioner being
held liable for the damages suffered by respondents even
o A Franco Transit bus collided with the rear portions of a bus without them having established the basis of her liability, thus
and truck wrecker both owned by Victory Liner, Inc. The depriving her of due process of law.
collision damaged both vehicles of Victory Liner and killed
Manuel Fabian, Rodel Ganelo, Caesar Santos, and Michael As a general rule, the requirements for perfecting an appeal
Figueroa. The driver of the Franco Transit bus likewise died within the reglementary period specified in law must be strictly
in the accident. followed, appeal not being a constitutional right but a mere
o Subsequently, Victory Liner and the surviving spouses of statutory privilege. The perfection of an appeal in the manner
Rodel Ganelo, Caesar Santos, and Manuel Fabian, filed and within the period permitted by law is thus not only
before the RTC a complaint for damages against Maria Liza mandatory, but also jurisdictional.
Franco-Cruz, herein petitioner, who was alleged to be the
registered owner and operator of Franco Transit in the
police report. G.R. No. 179848 November 27, 2008
o Respondents claimed that petitioner failed to exercise the NESTOR A. JACOT, petitioner,
diligence of a good father of a family in the selection and vs.
supervision of the driver of the Franco Transit bus. In her ROGEN T. DAL and COMMISSION ON ELECTIONS,
Answer, Franco - Cruz, alleged that she is not the real respondents.
party-in-interest and moved for dismissal of the case. DECISION
Further stating that the owner and the management of the CHICO-NAZARIO, J.:
bus involved in the case have always exercised the due
diligence of a good father of a family in the selection and Facts:
supervision of their employees; and that the proximate o Petitioner was a natural born citizen of the Philippines,
cause of the collision was the negligence and recklessness who became a naturalized citizen of the US on 13
of a third party, the driver of a Philippine Rabbit bus.
December 1989. On 27 September 2006, petitioner
o Franco - Cruz and her counsel failed to appear during the
pre-trial, hence, was declared in default and respondents reacquired his Filipino citizenship through Republic Act
at once started presenting evidence ex-parte. No. 9225, otherwise known as the Citizenship Retention
o Franco – Cruz filed for Motion For Reconsideration, stating and Re-Acquisition Act. Six months after, petitioner filed
that she is not the real party-in-interest as she is not the his Certificate of Candidacy for the Position of Vice-
registered owner of the Franco Transit bus but Felicisima Mayor.
R. Franco, in support of which she attached a Certificate of o Thereafter, respondent Rogen T. Dal filed a Petition for
Registration issued on October 28, 1988 in the name of
Disqualification before the COMELEC. In the meantime,
Felicisima R. Franco.
o RTC rendered judgment in favor of respondents. Franco – National and Local Elections were held. Petitioner
Cruz filed for Motion for Reconsideration, but the trial garnered the highest number of votes for the position of
court denied the same for having been filed beyond the 15- Vice Mayor. Accordingly,
day reglementary period, it having been filed only on the o The COMELEC Second Division issued its Resolution
18th day following the receipt by Franco – Cruz’s counsel disqualifying the petitioner from running for the position
of a copy of the decision. She appealed the same to the CA
of Vice-Mayor for failure to make the requisite
and the appellate court held that the decision of the court
has become final and executory due to it being filed out of renunciation of his US citizenship. Said decision was
time. Thus, this case affirmed by the Supreme Court in this case.
o The petitioner, however, presents before this Court for
Issue: WON the negligence of Franco – Cruz’s lawyer binds her. the first time an Affidavit of Renunciation of Allegiance
to the United States and Any and All Foreign Citizenship
Held: NO. which he supposedly executed even before he filed his
Certificate of Candidacy. As a rule, no question will be
Ratio: In the case at bar, the records show that petitioners
counsel indeed received notice of the trial court’s decision on entertained on appeal unless it has been raised in the
April 29, 1999. Following Rule 37, Section 1 vis--vis Rule 41, proceedings below.
Section 3 of the Rules of Court, petitioner had 15 days or until o The justification offered by petitioner is that his counsel
May 14, 1999 to file a motion for reconsideration or notice of had advised him against presenting this crucial piece of
appeal. She filed a motion for reconsideration on May 17, 1999, evidence.
thus rendering the trial courts decision as to her final and
executory.
Issue: WON the aforementioned advised of his counsel is a
valid excuse; hence, the Affidavit of Renunciation of
The faux pas or negligence of petitioners counsel, in failing to file
Allegiance to the United States can be admitted in this case.
a timely motion for reconsideration should not be taken against
her. Ordinarily, the negligence of counsel binds the client.
Held: NO.
However, this Court has recognized the following exceptions to

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 TORTS AND DAMAGES

Ratio: It is a well-settled rule that a client is bound by his EXCEPTION TO GEN. RULE
counsel’s conduct, negligence, and mistakes in handling the  when the reckless or gross negligence of counsel
case, and the client cannot be heard to complain that the deprives the client of due
result might have been different had his lawyer proceeded process(hearing/opportunity to be heard) of law,
differently. The only exceptions to the general rule -- that a
client is bound by the mistakes of his counsel -- which this
2 elements for the exception to apply
Court finds acceptable are when the reckless or gross
o Reckless or gross negligence
negligence of counsel deprives the client of due process of
law, or when the application of the rule results in the outright o Deprivation of due process
deprivation of one’s property through a technicality. These
exceptions are not attendant in this case. Example case De Guzman v.
The Court cannot sustain petitioner’s averment that his Sandiganbayan, where therein
counsel was grossly negligent in deciding against the petitioner De Guzman was unable to
presentation of the Affidavit of 7 February 2007 during the present a piece of evidence because his
proceedings before the COMELEC. Mistakes of attorneys as to lawyer proceeded to file a demurrer to
the competency of a witness; the sufficiency, relevancy or evidence, despite the Sandiganbayan’s
irrelevancy of certain evidence; the proper defense or the denial of his prior leave to do so. The
burden of proof, failure to introduce evidence, to summon wrongful insistence of the lawyer in
witnesses and to argue the case –UNLESS they prejudice the filing a demurrer to evidence had totally
client and (2nd element)prevent him from properly presenting deprived De Guzman of any chance to
his case -- do not constitute gross incompetence or present documentary evidence in his
negligence, such that clients may no longer be bound by the defense
acts of their counsel.33
Also belying petitioner’s claim that his former counsel was  when the application of the rule results in the
grossly negligent was the fact that petitioner continuously 1)outright deprivation of one’s property through a
used his former counsel’s theory of the case. Having asserted 2)technicality.
the same defense in the instant Petition, petitioner only
demonstrates his continued reliance on and complete belief in EXCEPTION TO THE EXCEPTION
the position taken by his former counsel, despite the former’s When client himself is negligent.
incongruous allegations that the latter has been grossly Petitioner himself is also guilty of negligence. If indeed he
negligent. believed that his counsel was inept, petitioner should have
Petitioner himself is also guilty of negligence. If indeed he promptly taken action, such as discharging his counsel earlier
believed that his counsel was inept, petitioner should have and/or insisting on the submission of his Affidavit of 7
promptly taken action, such as discharging his counsel earlier February 2007 to the COMELEC
and/or insisting on the submission of his Affidavit of 7 RATIONALE FOR THE GEN. RULE
February 2007 to the COMELEC. Petitioner could not be so Petitioner could not be so easily allowed to escape the
easily allowed to escape the consequences of his former consequences of his former counsel’s acts, because, otherwise,
counsel’s acts, because, otherwise, it would render court it would render court proceedings indefinite, tentative, and
proceedings indefinite, tentative, and subject to reopening subject to reopening at any time by the mere subterfuge of
at any time by the mere subterfuge of replacing counsel. replacing counsel.

Petitioner cites De Guzman v. Sandiganbayan,35 where therein

petitioner De Guzman was unable to present a piece of BANKS
evidence because his lawyer proceeded to file a demurrer to
evidence, despite the Sandiganbayan’s denial of his prior leave The business of banks is one affected with public interest.
to do so. The wrongful insistence of the lawyer in filing a Because of the nature of its functions, a bank is under obligation
demurrer to evidence had totally deprived De Guzman of any to treat the accounts of its depositors with meticulous care,
chance to present documentary evidence in his defense. This always having in mind the fiduciary nature of their relationship.
was certainly not the case in the Petition at bar. (Philippine Bank of Commerce vs. Court of Appeals, 269 SCRA
695 [1997]).
Herein, petitioner was in no way deprived of due process. His
counsel actively defended his suit by attending the hearings,
filing the pleadings, and presenting evidence on petitioner’s
behalf.(1st execption not applicable). Moreover, petitioner’s Instances when depositor may file an action for damages under
cause was not defeated by a mere technicality, but because Article 2176 of the New Civil Code:
of a mistaken reliance on a doctrine which is not applicable
to his case. A case lost due to an untenable legal position o If through the fault of the bank’s employee, the secretary of
does not justify a deviation from the rule that clients are the depositor was able to fraudulently divert his funds from
bound by the acts and mistakes of their counsel. (2nd his account to the account of the secretary’s husband. (Phil.
exception not applicable) Bank of Commerce vs. Court of Appeals, 269 SCRA 695
NOTES: GEN RULE: a client is bound by his counsel’s conduct, [1997]).
negligence, and mistakes in handling the case, and the client o If it wrongfully dishonors the check issued by the depositor
cannot be heard to complain that the result might have been even if there are sufficient funds in the account and even if
different had his lawyer proceeded differently. there is no other valid justification to do so.

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 TORTS AND DAMAGES

Philippine Bank of Commerce v. Court of Appeals to RMC; neither was the bank forewarned by RMC that Yabut
GR No. 97626, March 14, 1997 will be depositing cash to its account.
Hermosisima, J.
Private respondent, on the other hand, maintains that the
Facts: proximate cause of the loss was the negligent act of the bank,
o A complaint filed by the private respondent Rommel's thru its teller Ms. Azucena Mabayad, in validating the deposit
Marketing Corporation (RMC for brevity), represented slips, both original and duplicate notwithstanding the fact that
by its President and General Manager Romeo Lipana, to one of the deposit slips was not completely accomplished.
recover from the former Philippine Bank of Commerce
(PBC for brevity), now absorbed by the Philippine There are three elements of a quasi-delict: (a) damages
Commercial International Bank, the sum of P304,979.74 suffered by the plaintiff; (b) fault or negligence of the
representing various deposits it had made in its current defendant, or some other person for whose acts he must
account with said bank but which were not credited to respond; and (c) the connection of cause and effect between
its account, and were instead deposited to the account the fault or negligence of the defendant and the damages
of one Bienvenido Cotas, allegedly due to the gross and incurred by the plaintiff
inexcusable negligence of the petitioner bank. RMC
maintained two (2) separate current accounts, Current It appears that the bank's teller, Ms. Azucena Mabayad, was
Account Nos. 53-01980-3 and 53-01748-7. From May 5, negligent in validating, officially stamping and signing all the
1975 to July 16, 1976, petitioner Romeo Lipana claims to deposit slips prepared and presented by Ms. Yabut, despite
have entrusted RMC funds in the form of cash totalling the glaring fact that the duplicate copy was not completely
P304,979.74 to his secretary, Irene Yabut, for the accomplished contrary to the self-imposed procedure of the
purpose of depositing said funds in the current accounts bank with respect to the proper validation of deposit slips,
of RMC with PBC. It turned out, however, that these original or duplicate. Negligence here lies not only on the part
deposits, on all occasions, were not credited to RMC's of Ms. Mabayad but also on the part of the bank itself in its
account but were instead deposited to Account No. 53- lackadaisical selection and supervision of Ms. Mabayad. It was
01734-7 of Yabut's husband, Bienvenido Cotas who this negligence of Ms. Azucena Mabayad, coupled by the
likewise maintains an account with the same bank. negligence of the petitioner bank in the selection and
o Irene Yabut's modus operandi is far from complicated. supervision of its bank teller, which was the proximate cause
She would accomplish two (2) copies of the deposit slip, of the loss suffered by the private respondent.
an original and a duplicate. The original showed the
name of her husband as depositor and his current (2) Under the doctrine of "last clear chance", petitioner bank
account number. On the duplicate copy was written the was indeed the culpable party. This doctrine, in essence,
account number of her husband but the name of the states that where both parties are negligent, but the negligent
account holder was left blank. PBC's teller, Azucena act of one is appreciably later in time than that of the other,
Mabayad, would, however, validate and stamp both the or when it is impossible to determine whose fault or
original and the duplicate of these deposit slips retaining negligence should be attributed to the incident, the one who
only the original copy despite the lack of information on had the last clear opportunity to avoid the impending harm
the duplicate slip. The second copy was kept by Irene and failed to do so is chargeable with the consequences
Yabut allegedly for record purposes. After validation, thereof.
Yabut would then fill up the name of RMC in the space
left blank in the duplicate copy and change the account Here, assuming that private respondent RMC was negligent in
number written thereon, which is that of her husband's, entrusting cash to a dishonest employee, thus providing the
and make it appear to be RMC's account number, i.e., latter with the opportunity to defraud the company, as
C.A. No. 53-01980-3. She made her company believe advanced by the petitioner, yet it cannot be denied that the
that all the while the amounts she deposited were being petitioner bank, thru its teller, had the last clear opportunity
credited to its account when, in truth and in fact, they to avert the injury incurred by its client, simply by faithfully
were being deposited by her and credited by the observing their self-imposed validation procedure.
petitioner bank in the account of Cotas.
o RTC decided in favor of respondent RMC (3) Art. 1173. The fault or negligence of the obligor consists in
the omission of that diligence which is required by the nature
Issue: of the obligation and corresponds with the circumstances of
(1) Whether or not the proximate cause of the injury suffered the persons, of the time and of the place. When negligence
by the respondent is the negligence of the petitioners shows bad faith, the provisions of articles 1171 and 2201,
(2) Discussion about "last clear chance" paragraph 2, shall apply.
(3) Discussion about diligence required in banks
If the law or contract does not state the diligence which is to
Held: be observed in the performance, that which is expected of a
(1) Yes good father of a family shall be required. (1104a)

Ratio: In the case of banks, however, the degree of diligence

(1) Petitioners submit that the proximate cause of the loss is required is more than that of a good father of a family.
the negligence of respondent RMC and Romeo Lipana in Considering the fiduciary nature of their relationship with
entrusting cash to a dishonest employee in the person of Ms. their depositors, banks are duty bound to treat the accounts
Irene Yabut. According to them, it was impossible for the bank of their clients with the highest degree of care. The point is
to know that the money deposited by Ms. Irene Yabut belong that as a business affected with public interest and because of

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 TORTS AND DAMAGES

the nature of its functions, the bank is under obligation to malicious and oppressive prosecution. A preliminary
treat the accounts of its depositors with meticulous care, investigation is an inquiry to determine whether (a) a crime has
always having in mind the fiduciary nature of their been committed, and (b) whether there is probable cause to
relationship. believe that the accused is guilty thereof. It is a means of
discovering the person or persons who may be reasonably
charged with a crime. We are not unaware of the established
Metrobank vs. Tobias presumption and rule that when it is proved that a person has
G.R No. 177780 Jan 25, 2012 in his possession a falsified document and makes use of the
Bersamin,J.: same the presumption or inference is that such person is the
forger. Yet, the Supreme Court declared that in the absence of
Facts: satisfactory explanation, one who is found in possession of a
o Antonio Tobias herein respondent is a businessman forged document and who used it is presumed to be the forger.
engaged in merchandising of frozen meats. Tobias open Very clearly then, a satisfactory explanation could render
an account with Metrobank, herein petitioners under his ineffective the presumption which, after all, is merely a
business name Adam Merchandising. Six months later, disputable one. The court considered that Tobias presented a
Tobias applied for a loan from Metrobank and presented satisfactory explanation that rebutted the presumption.
his property in Malabon as collateral.
o Metrobank conducted a verification of the title thereafter Issue 2: Test of Negligence of Banks
approved a loan amount of 40M. Metrobank instituted We do not lose sight of the fact that METROBANK, a
the annotation of the deed of real estate mortgage on the commercial bank dealing in real property, had the duty to
Certificate of Title on the subject property. Tobias initially observe due diligence to ascertain the existence and condition
availed only 20M, paid the interest for a year before he of the realty as well as the validity and integrity of the
defaulted. documents bearing on the realty. Its duty included the
o The loan was restructred but again Tobias defaulted. responsibility of dispatching its competent and experience
Metrobank proceeded to foreclosed the subject representatives to the realty to assess its actual location and
propperty, and was sold to Metrobank as sole bidder. condition, and of investigating who was its real owner.Yet, it is
o Metrobank then discovered that there was no original evident that METROBANK did not diligently perform a thorough
copy of the subject property, and that the serial number check on Tobias and the circumstances surrounding the realty
in the subject property has been issued to Alberto Cruz he had offered as collateral. As such, it had no one to blame but
and Eugenio Cruz. itself. Verily, banks are expected to exercise greater care and
o Metrobank requested an investigation to PAOCTF, and prudence than others in their dealings because their business
PAOCTF found that the title was fictitious and is impressed with public interest.Their failure to do so
recommended the filing of criminal complaint against constitutes negligence on its part.
Tobias. The City Prosecutor of Malabon charged Tobias
with estafa through falsification of public documents.
o Tobias in his defense, to show that he has no intention to Causation
defraud the bank, averred that the subject property was
sold to him by Leonardo Fajardo and R.E.B Munsayac and 1. Proximate cause
Pilapil. That Natalio Bartolome convinced Tobias to buy
the property as an ideal site for his meat processing The cause which, in natural and continuous sequence,
business. That Metrobank did the verification and actual unbroken by any efficient intervening cause, produces
inspection of the subject property and approved the loan the injury, and without which the result would not
applied by Tobias. That he was instructed to transfer the have occurred.
title first, and his R.E Brokers processed the account, and
that the property was inspected and verified by personnel
Bataclan vs. Medina Gr No. L-10126
of Metrobank.
o City Prosecutor continued with the filing of the Criminal
The proximate legal cause is that acting first and producing
Complaint, DOJ however decided that Tobias was in good
the injury, either immediately or by settling other events in
faith. C.A dismissed the appeal of Metrobank hence this
motion, all constituting a natural and continuous chain of
petition.
events, each having a close causal connection with its
Issue:
immediate predecessor, the final event in the chain
1. WON Tobias is in Bad faith
immediately affecting the injury as a natural and probable
2. WON Metrobank is negligent in the verification and
result of the cause which first acted, under such
inspection of the subject peroperty.
circumstances that the person responsible for the first event
Held.
should, as an ordinarily prudent and intelligent person, have
1. No
reasonable ground to expect at the moment his act or default
2. Yes
that an injury to some person might probably result
therefrom.”
Ratio:

Issue 1: Presumption of Bad faith

The presumption that whoever possesses or uses a spurious
document is its forger applies only in the absence of a
satisfactory explanation. A preliminary investigation is
designed to secure the respondent involved against hasty,

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 TORTS AND DAMAGES

Tests of proximate cause In other words, if the accident would not have
occurred had there been no negligence of the part of
1. Cause-in-fact tests the defendant, the defendants conduct is a substantial
factor in bringing about the damage or injury.
In determining the proximate cause of the injury, it is first
necessary to determine if defendant’s negligence was the N.B. Applicable to both cause in fact test and policy
cause-in-fact of the damage to the plaintiff. If defendant’s test.
negligence was not a cause-in-fact, the inquiry stops; but if it
is a cause-in-fact, the inquiry shifts to the question of limit of The substantial factor test is important in cases where
liability of the defendant. there are concurrent causes.

i.e. In an ordinary vehicular accident, for example, the iii. Necessary and sufficient (NESS) test
defendant will not be made liable for the injury if he can
establish that the plaintiff had that injury prior to the Whether a particular condition qualifies as a casually
accident. The defendant did not cause (in fact) any harm relevant factor will depend on whether it was
which occurred before his wrongful conduct; nor is the necessary to complete a set of conditions jointly
defendant liable for any harm that was caused by some sufficient to account for the given occurrence.
independent event. (ibid.). It is necessary that there is proof
that defendant’s conduct is a factor in causing plaintiff’s In such cases, it holds that our candidate condition
damage. may still be termed ‘a cause’ where it is shown to be a
necessary element in just one of several co-present
i. “But for” test or the sine qua non test causal sets each independently sufficient for the effect.

Where if the first object had not been, the second Two ways that such co-presence can manifest itself
never had existed.
a. Duplicative
Defendant’s conduct is the cause in fact of the injury
under the but for test if the damage would not have Occurs when two (or more) such sets operate
resulted had there been no negligence on the part of simultaneously to produce the effect; in other
the defendant. Conversely, defendant’s negligent words, the effect is over-determined.
conduct is not the cause in fact of the plaintiff’s
damage if the accident could not have been avoided in i.e. Conflagration began in two places at once,
the absence thereof. through the carelessly discarded cigarette and
the short-circuit, respectively. It is apparent that,
i.e. Plaintiff was injured because he was hit by a in contrast to the ‘but for’ test (whose counter
portion of a negligently constructed wall which intuitive result is that neither was a cause), the
collapsed, the negligence in the construction of the NESS test allows us to regard both the cigarette
wall is the cause in fact of the injury because the injury and short-circuit as causative of the damage.
to the plaintiff would not have resulted had there been
no negligence on the part of the defendant. b. Pre-emptive

ii. Substantial factor test Occurs when, through coming about first in time,
one causal set ‘trumps’ another, potential set
The substantial factor test, on other hand, makes the lurking in the background. The causal potency of
negligent conduct the cause in fact of the damage if it the latter is frustrated for, a necessary condition
was a substantial factor in producing the injuries. for the sufficiency of any set of actual antecedent
conditions is that the injury not have occurred
In order to be a substantial factor in producing the already as a result of other actual conditions
harm, the causes set in motion by the defendant must outside the set
continue until the moment of the damage or at least
down the setting in motion of the final active injurious i.e. D shoots and kills P as he is about to drink
force which immediately produced or preceded the from a cup poisoned by C. Here, the NESS test
damage. makes it clear that it is D’s act, on the other hand,
does not satisfy the NESS test: poison does not
In order to be a substantial factor in producing the feature in the list of necessary elements in any
harm, the causes set in motion by the defendant must operative set of conditions sufficient for P’s
continue until the moment of the damage or at least death; instead it is a necessary part of a potential
down the setting in motion of the final active injurious but, as things turn out, inoperative, causal set.
force which immediately produced or preceded the
damage.

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 TORTS AND DAMAGES

2. Policy tests of negligence 2. Policy tests of negligence

If the damage or injury to the plaintiff is beyond the limit of the i. Rule under the New Civil Code
liability fixed by law, the defendant’s conduct cannot be Art. 2202. In crimes and quasi-delicts,
considered the proximate cause of the damage. Such limit of the defendant shall be liable for all
liability is determined by applying what are known as policy tests. damages which are the natural and
probable consequences of the act or
i. Foreseeability test omission complained of. It is not
ii. Natural and probable consequence test necessary that such damages have been
iii. Natural and ordinary or direct consequences test foreseen or could have reasonably been
iv. Hindsight test foreseen by the defendant.
v. Orbit of risk test
vi. Substantial factor test. The definition of proximate cause which
includes the element of foresight is not
Policy tests may be divided into two groups consistent with the express provision of the
New Civil Code. A person may be held liable
a. Foresight perspective – Includes the element of whether the damage to the plaintiff may be
foreseeability. unforeseen.

The defendant is not liable for unforeseeable The defendant is liable for the injuries
consequences of his acts. The liability is limited sustained by those who may be considered
within the risk created by the defendant’s unforeseeable plaintiffs. The defendant is
negligent act. liable not only to the person to whom the
negligent act was directed but to persons
b. Directness perspective – Does not require that who may be directed but even to third
the injury is within the foreseeable risk created persons.
by the defendant.
i.e. Defendant may be held liable for
Makes the defendant liable for damages which damages to third persons otherwise called
are beyond the risk. Direct consequences are indirect damages.
those which follow in the sequence from the
effect of the defendant’s act upon conditions Third persons who are dependent for
existing and forces already in operation at the support upon the injured party may recover
time, without the intervention of any external damages. These third persons cannot be
forces, which come into active operation later. considered foreseeable plaintiffs at the
time of the occurrence of the negligent act
Tests applied in the Philippines or omission.

1. Cause-in-fact tests Cause and Condition

i. But for – The cause should be that without
which the damages would not have o The Supreme Court adopted the view that it is no longer
resulted. practicable to distinguish between cause and condition.
ii. Substantial factor - The issue of proximate
causation asks whether the defendant’s i.e. The defendant who spills gasoline about the premises
conduct could be regarded as a ‘substantial creates a “condition,” but the act may be culpable because
factor’ in bringing about plaintiff’s harm, of the danger of fire. When a spark ignites the gasoline, the
and that inquiry often is translated into one condition has done quite as much to bring about the fire as
that asks whether any of the human actions the spark; and since that is the very risk which the defendant
or natural events that occur after has created, the defendant will not escape responsibility.
defendant’s conduct but before the
plaintiff’s harm severs the causal Even the lapse of a considerable time during which the
connection between them. “condition” remains static will not necessarily affect liability;
iii. NESS test – Applied in multiple causation one who digs a trench in the highway may still be liable to
cases. There is no statutory provision that another who falls into it a month afterward.
fixes the applicable test hence the NESS test
G.R. No. L-10126 October 22, 1957
is an acceptable test and it might even be
SALUD VILLANUEVA VDA. DE BATACLAN and the minors
superior in multiple causation cases.
vs.
MARIANO MEDINA,

Facts:

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 TORTS AND DAMAGES

injuries to passengers through the negligence or willful acts of

o Shortly after midnight, on September 13, 1952 bus no. 30 the former's employees, although such employees may have
of the Medina Transportation, operated by its owner acted beyond the scope of their authority or in violation of the
defendant Mariano Medina under a certificate of public order of the common carriers.
convenience, left the town of Amadeo, Cavite, on its way
to Pasay City, driven by its regular chauffeur, Conrado This liability of the common carriers does not cease upon proof
Saylon. that they exercised all the diligence of a good father of a family
o There were about eighteen passengers, including the in the selection and supervision of their employees.
driver and conductor. At about 2:00 o'clock that same
morning, while the bus was running within the ART. 1763. A common carrier responsible for injuries suffered
jurisdiction of Imus, Cavite, one of the front tires burst by a passenger on account of the willful acts or negligence of
and the vehicle began to zig-zag until it fell into a canal or other passengers or of strangers, if the common carrier's
ditch on the right side of the road and turned turtle. employees through the exercise of the diligence of a good
Some of the passengers managed to leave the bus, father of a family could have prevented or stopped the act or
others had to be helped or pulled out, while the three omission.
passengers seated beside the driver, named Bataclan,
Lara and the Visayan and Natalia Villanueva, could not We agree with the trial court that the case involves a breach of
get out of the overturned bus. contract of transportation for hire, the Medina Transportation
o After half an hour, came about ten men, one of them having undertaken to carry Bataclan safely to his destination,
carrying a lighted torch made of bamboo, evidently Pasay City. We also agree with the trial court that there was
fueled with petroleum. These men presumably approach negligence on the part of the defendant, through his agent, the
the overturned bus, a fierce fire started, burning and all driver Saylon. There is evidence to show that at the time of the
but consuming the bus, including the four passengers blow out, the bus was speeding, as testified to by one of the
trapped inside it. It would appear that as the bus passengers, and as shown by the fact that according to the
overturned, gasoline began to leak, spreading over, and testimony of the witnesses, including that of the defense, from
that the lighted torch brought by one of the men who the point where one of the front tires burst up to the canal
answered the call for help set it on fire. where the bus overturned after zig-zaging, there was a
distance of about 150 meters. The chauffeur, after the blow-
Issue: WON the overturning of bus is the proximate cause of out, must have applied the brakes in order to stop the bus, but
the death of Bataclan because of the velocity at which the bus must have been
running, its momentum carried it over a distance of 150
Held: meters before it fell into the canal and turned turtle.

There is no question that under the circumstances, the

YES. The Proximate cause of the death of Bataclan was
defendant carrier is liable. The only question is to what degree.
the overturning of bus. There is also negligence on the
The trial court was of the opinion that the proximate cause of
part of the defendant. The case involves a breach of the death of Bataclan was not the overturning of the bus, but
contract of transportation for hir rather, the fire that burned the bus, Bataclan, though he must
have suffered physical injuries, perhaps serious, was still alive.
We disagree. A satisfactory definition of proximate cause is
found in Volume 38, pages 695-696 of American jurisprudence,
Ratio: cited by plaintiffs-appellants in their brief. It is as follows:

Our new Civil Code amply provides for the responsibility of . . . 'that cause, which, in natural and continuous sequence,
common carrier to its passengers and their goods. For unbroken by any efficient intervening cause, produces the
purposes of reference, we are reproducing the pertinent codal injury, and without which the result would not have occurred.'
provisions: And more comprehensively, 'the proximate legal cause is that
acting first and producing the injury, either immediately or by
ART. 1733. Common carriers, from the nature of their business setting other events in motion, all constituting a natural and
and for reasons of public policy, are bound to observe continuous chain of events, each having a close causal
extraordinary diligence in the vigilance over the goods and for connection with its immediate predecessor, the final event in
the safety of the passengers transported by them, according to the chain immediately effecting the injury as a natural and
all the circumstances of each case. probable result of the cause which first acted, under such
circumstances that the person responsible for the first event
ART. 1755. A common carrier is bound to carry the passengers should, as an ordinary prudent and intelligent person, have
safely as far as human care and foresight can provide, using the reasonable ground to expect at the moment of his act or
utmost diligence of very cautious persons, with a due regard default that an injury to some person might probably result
for all the circumstances. therefrom.

ART. 1756. In case of death of or injuries to passengers, It may be that ordinarily, when a passenger bus overturns, and
common carriers are presumed to have been at fault or to pins down a passenger, merely causing him physical injuries, if
have acted negligently, unless they prove that they observed through some event, unexpected and extraordinary, the
extraordinary diligence as prescribed in articles 1733 and 1755 overturned bus is set on fire, say, by lightning, or if some
highwaymen after looting the vehicle sets it on fire, and the
ART. 1759. Common carriers are liable for the death of or passenger is burned to death, one might still contend that the

JD-2 AUF-SOL MIDTERMS 53

 TORTS AND DAMAGES

proximate cause of his death was the fire and not the was affirmed by the CA hence this petition.
overturning of the vehicle. But in the present case under the
circumstances obtaining in the same, we do not hesitate to
hold that the proximate cause was the overturning of the bus, Issue: Is petitioner negligent, and if so, is the negligence was
this for the reason that when the vehicle turned not only on its the proximate cause of the accident?
side but completely on its back, the leaking of the gasoline from
the tank was not unnatural or unexpected; that the coming of Held: YES. The negligence of the petitioner is the proximate
the men with a lighted torch was in response to the call for cause of the accident. Petition DENIED.
help, made not only by the passengers, but most probably, by
the driver and the conductor themselves, and that because it Ratio: Art. 2176 provide the requisites of negligence: 1. damage
was dark (about 2:30 in the morning), the rescuers had to carry suffered by the plaintiff, 2. fault or negligence of the defendant,
a light with them, and coming as they did from a rural area 3. connection of cause and effect between the fault or
where lanterns and flashlights were not available; and what negligence of the defendant and the damage incurred by the
was more natural than that said rescuers should innocently plaintiff.
approach the vehicle to extend the aid and effect the rescue It is generally recognized that the drugstore business is imbued
requested from them. with public interest. Obviously, petitioner’s employee was
grossly negligent in selling the wrong prescription. Considering
What is more, the burning of the bus can also in part be that a fatal mistake could be a matter of life and death for a
attributed to the negligence of the carrier, through is driver buying patient, the said employee should have been very
and its conductor. According to the witness, the driver and the cautious in dispensing medicines. She should have verified
conductor were on the road walking back and forth. They, or at whether the medicine she gave respondent was indeed the one
least, the driver should and must have known that in the prescribed by the physician.
position in which the overturned bus was, gasoline could and *** Petitioner contends that the proximate cause of the
must have leaked from the gasoline tank and soaked the area accident was respondent’s negligence in driving his car.
in and around the bus, can be smelt and directed even from a  Proximate cause is that cause, which in natural and
distance, and yet neither the driver nor the conductor would
continuous sequence unbroken by any efficient
appear to have cautioned or warn the rescuers not to bring the
lighted torch too near the bus. Said negligence on the part of intervening cause, produces the injury, and without
the agents of the carrier come under the codal provisions which the result would not have occurred.
above-reproduced, particularly, Articles 1733, 1759 and 1763. Proximate cause is determined from the facts of
each case, upon a combined consideration of logic,
common sense, policy, and precedent.
MERCURY DRUG CORP. v. BAKING
GR. No. 156037, May 28, 2007 Here, the vehicular accident could not have
occurred had petitioner’s employee been careful in
SANDOVAL-GUTIERREZ, J.: reading the prescription. Without the potent effect
of Dormicum, a sleeping tablet, it was unlikely that
Facts: respondent would fall asleep while driving his car,
resulting in collision.
o Sebastian M. Baking went to the clinic of Dr. Cesar Sy for
a medical check-up. After undergoing an ECG, and several HIGHLIGHTS OF THE CASE:
examininations, Dr. Sy found the respondent’s blood  Requisites of negligence provided in Art. 2176
sugar and triglyceride were above normal. The doctor were met. Mercury Drug employee is grossly
then prescribed two medical prescriptions- Diamicron for negligent in selling Dormicum instead of Diamicron.
the blood sugar and Benalize for his triglyceride.  Mercury Drug also liable under Art. 2180. It failed
Respondent then proceeded to Mercury Drug Alabang to to prove that it exercised the due diligence of a good
buy the prescribed medicines. father of a family in the selection and supervision of
o The sales lady misread the prescription for Diamicron as the employee
a prescription for Dormicum. Thus what was sold was  Proximate Cause of the accident is the negligence
Dormicum, a potent sleeping tablet. Unaware of the of the employee of the Mercury Drug.
wrong medicine, he took one pill on three consecutive
days.
o On the third day he took the medicine, he met an
2. Remote cause
accident while driving his car. He fell asleep while
driving. He could not remember anything about the
The cause which some independent force merely took
collision nor felt its impact. Suspecting the tablet he took,
advantage of to accomplish something not the natural
respondent went back to Dr. Sy who was shocked after effect thereof.
finding that what was sold was Dormicum instead of
Diamicron. G.R. No. L-15674 October 17, 1921
o He filed the present complaint for damages against
petitioner. The trial court favored the defendant which

JD-2 AUF-SOL MIDTERMS 54

 TORTS AND DAMAGES

CONSOLACION GABETO v Upon the whole we are constrained to hold that the
AGATON ARANETA defendant is not legally responsible for the death of Proceso
Gayetano; and though reluctant to interfere with the findings
Facts: of fact of a trial court when there is a conflict of testimony,
the evidence in this case so clearly preponderates in favor of
o Basilio Ilano and Proceso Gayetano took a carromata
the defendant, that we have no recourse but to reverse the
with a view to going to a cockpit. When the driver of the
judgment.
carromata had turned his horse and started in the
direction indicated, the defendant, Agaton Araneta,
stepped out into the street, and laying his hands on the
reins, stopped the horse, at the same time protesting
3. Concurrent causes
to the driver that he himself had called this carromata
first.
o Pagnaya pulled on the reins of the bridle to free the The proximate cause is not necessarily the sole cause
horse from the control of Agaton Araneta, in order that of the accident. The defendant is still liable in case
the vehicle might pass on. Owing, however, to the there is concurrent causes brought about by acts or
looseness of the bridle on the horse's head or to the omissions of third persons. The actor is not protected
rottenness of the material of which it was made, the bit from liability even if the active and substantially
came out of the horse's mouth; and it became necessary simultaneous operation of the effects of a third
for the driver to get out, which he did, in order to find person’s innocent, tortious or criminal act is also a
the bridle. substantial factor in bringing about the harm so long as
o While he was thus engaged, the horse, being free from the actor’s negligent conduct actively and continuously
the control of the bit, became disturbed and moved operate to bring about harm to another. (Africa vs.
forward, in doing which he pulled one of the wheels of Caltex, supra at 157).
the carromata up on the sidewalk and pushed Julio
Pagnaya over. After going a few years further the side of
It is also the effect of the rule on concurrent causes
the carromata struck a police telephone box which was
fixed to a post on the sidewalk, upon which the box that the doctrine of the last clear chance hereinbelow
came down with a crash and frightened the horse to discussed, cannot be extended into the field of joint
such an extent that he set out at full speed up the street. tortfeasors as a test of whether only one of them
o Meanwhile one of the passengers, to wit. Basilio Ilano, should be held liable to the injured person by reason
had alighted while the carromata was as yet alongside of his discovery of the latter’s peril, and it cannot be
the sidewalk; but the other, Proceso Gayetano, had invoked as between defendants concurrently
unfortunately retained his seat, and after the runaway negligent. (Bustamante vs. Court of Appeals, 193
horse had proceeded up the street to a point in front of SCRA 603 [1991]).
the Mission Hospital, the said Gayetano jumped or fell
from the rig, and in so doing received injuries from N.B. In cases where there is concurrent causes or
which he soon died.
negligence, the joint tortfeasors are solidarily liable.
o
Issue: Whether or not Araneta’s acts were the cause of
Where several causes producing an injury are
Gayetano’s death
concurrent and each is an efficient cause without
Held: No. which the injury would not have happened, the injury
Ratio: The mere fact that the defendant interfered with the may be attributed to all or any of the causes and
carromata by stopping the horse in the manner stated would recovery may be had against any or all of the
not make him liable for the death of Proceso Gayetano; responsible persons although under the circumstances
because it is admitted by Julio Pagnaya that he afterwards got of the case, it may appear that one of them to the
out of the carromata and went to the horse's head to fix the injured person was not the same.
bridle.
Where the concurrent or successive negligent acts or
It is therefore evident that the stopping of the rig by Agaton omissions of two or more persons, although acting
Araneta in the middle of the street was too remote from the independently, are in combination the direct and
accident that presently ensued to be considered the legal or proximate cause of a single injury to a third person, it
proximate cause thereof. Moreover, by getting out and taking is impossible to determine what proportion each
his post at the head of the horse, the driver was the person contributed to the injury and either of them is
primarily responsible for the control of the animal, and the responsible for the whole injury.
defendant cannot be charged with liability for the accident
resulting from the action of the horse thereafter. N.B. It was ruled, however, that the plaintiff cannot
recover if the negligence of both the plaintiff and the
The evidence indicates that the bridle was old, and the leather defendant can be considered the concurrent proximate
of which it was made was probably so weak as to be easily causes of the injury.
broken.

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 TORTS AND DAMAGES

PHILIPPINE NATIONAL CONSTRUCTION CORPORATION, injuries sustained by Latagan and the damage to Arnaiz’s
Petitioners, car.
vs. o In its Answer, PNCC admitted that it was under contract
HON. COURT OF APPEALS, RODRIGO ARNAIZ, REGINA to manage the North Luzon Expressway, to keep it safe
LATAGAN, RICARDO GENERALAO and PAMPANGA SUGAR for motorists. It averred that the mishap was due to the
DEVELOPMENT COMPANY, INC., CORPORATION, Respondent. "unreasonable speed" at which Arnaiz’s car was running,
causing it to turn turtle when it passed over some pieces
of flattened sugarcane. It claimed that the proximate
G.R. No. 159270. August 22, 2005
cause of the mishap was PASUDECO’s gross negligence in
spilling the sugarcane, and its failure to clear and mop up
CALLEJO, SR., J.: the area completely. It also alleged that Arnaiz was guilty
of contributory negligence in driving his car at such speed.
Facts: o PASUDECO adduced evidence that aside from it, there
were other sugarcane mills in the area, like the ARCAM
Sugar Central (formerly known as Pampanga Sugar Mills)
o Pampanga Sugar Development Company, Inc. and the Central Azucarrera de Tarlac;20 it was only
(PASUDECO) transports sugarcane from Mabalacat and through the expressway that a vehicle could access these
Magalang, Pampanga. When the Mount Pinatubo three (3) sugar centrals;21 and PASUDECO was obligated
eruption of 1991 heavily damaged the national bridges, it to clear spillages whether the planters’ truck which
requested permission from the Toll Regulatory Board caused the spillage was bound for PASUDECO, ARCAM or
(TRB) for its trucks to enter and pass through the North Central Azucarera.22
Luzon Expressway (NLEX) via Dau-Sta. Ines. o On rebuttal, PNCC adduced evidence that only planters’
o At around 2:30 a.m. on January 23, 1993, Sendin, the trucks with "PSD" markings were allowed to use the
PNCC security supervisor, and his co-employees Ducusin tollway;23 that all such trucks would surely enter the
and Pascual were patrolling Km. 72 going north of the PASUDECO compound. Thus, the truck which spilled
NLEX. They saw a pile of sugarcane in the middle portion sugarcane in January 1993 in Km. 72 was on its way to the
of the north and southbound lanes of the road. They PASUDECO compound.24
placed lit cans with diesel oil in the north and southbound o On November 11, 1994, the RTC rendered its decision in
lanes, including lane dividers with reflectorized markings, favor of Latagan,
to warn motorists of the obstruction. Sendin, Ducusin and o Both the plaintiffs Arnaiz, Latagan and Generalao and
Pascual proceeded to the PASUDECO office, believing that defendant PASUDECO appealed the decision to the CA.
the pile of sugarcane belonged to it since it was the only Since the plaintiffs failed to file their brief, the CA
milling company in the area. PASUDECO Engineer Mallari dismissed their appeal.27
told them that he would send someone to clear the o The CA rendered judgment on April 29, 2003, affirming
affected area. At around 4:00 a.m., five (5) PASUDECO the RTC decision with modification. The appellate court
men arrived, and started clearing the highway of the ruled that Arnaiz was negligent in driving his car, but that
sugarcane. They stacked the sugarcane at the side of the such negligence was merely contributory to the cause of
road. The men left the area at around 5:40 a.m., leaving a the mishap, i.e., PASUDECO’s failure to properly supervise
few flattened sugarcanes scattered on the road. As the its men in clearing the affected area. And judgment is was
bulk of the sugarcanes had been piled and transferred rendered declaring PASUDECO and PNCC, jointly and
along the roadside, Sendin thought there was no longer a solidarily, liable.
need to man the traffic. As dawn was already
approaching, Sendin and company removed the lighted
cans and lane dividers. Issue: Whether or not PNCC should be solidarily liable with
o At about 6:30 a.m., Arnaiz, was driving his two-door PASUDECO.
Toyota Corolla along the NLEX at about 65 km per hour.
He was with his sister Latagan, and his friend Generalao; Held: Yes.
they were on their way to Baguio. As the vehicle ran
over the scattered sugarcane, it flew out of control and
Ratio: There are three elements of a quasi-delict: (a) damages
turned turtle several times. The accident threw the car
suffered by the plaintiff; (b) fault or negligence of the
about fifteen paces away from the scattered sugarcane.
defendant, or some other person for whose acts he must
o Police Investigator Arcilla investigated the matter and saw
respond; and (c) the connection of cause and effect between
black and white sugarcanes on the road, on both lanes,
the fault or negligence of the defendant and the damages
which appeared to be flattened.
incurred by the plaintiff.31 Article 2176 of the New Civil Code
o On March 4, 1993, Arnaiz, Latagan and Generalao filed a
provides:
complaint for damages against PASUDECO and
PNCC.They alleged that through its negligence, PNCC
failed to keep and maintain the NLEX safe for motorists Art. 2176. Whoever by act or omission
when it allowed PASUDECO trucks with uncovered and causes damage to another, there being
unsecured sugarcane to pass through it; that PASUDECO fault or negligence, is obliged to pay for
negligently spilled sugarcanes on the NLEX, and PNCC the damage done. Such fault or
failed to put up emergency devices to sufficiently warn negligence, if there is no pre-existing
approaching motorists of the existence of such spillage; contractual relation between the parties,
and that the combined gross negligence of PASUDECO
and PNCC was the direct and proximate cause of the

JD-2 AUF-SOL MIDTERMS 56

 TORTS AND DAMAGES

is called a quasi-delict and is governed by injury. It is sufficient that his negligence,

the provisions of this Chapter. concurring with one or more efficient
causes other than plaintiff's, is the
proximate cause of the injury.
The test for determining whether a person is negligent in doing
Accordingly, where several causes
an act whereby injury or damage results to the person or
combine to produce injuries, a person is
property of another is this: could a prudent man, in the position
not relieved from liability because he is
of the person to whom negligence is attributed, foresee harm
responsible for only one of them, it being
to the person injured as a reasonable consequence of the
sufficient that the negligence of the
course actually pursued? If so, the law imposes a duty on the
person charged with injury is an efficient
actor to refrain from that course or to take precautions to
cause without which the injury would not
guard against its mischievous results, and the failure to do so
have resulted to as great an extent, and
constitutes negligence.
that such cause is not attributable to the
person injured. It is no defense to one of
The petitioner cannot escape liability under the MOA between the concurrent tortfeasors that the injury
PASUDECO and TRB, since respondent Latagan was not a party would not have resulted from his
thereto. We agree with the following ruling of the CA: negligence alone, without the negligence
or wrongful acts of the other concurrent
Both defendants, appellant PASUDECO and appellee PNCC, tortfeasors. Where several causes
should be held liable. PNCC, in charge of the maintenance of producing an injury are concurrent and
the expressway, has been negligent in the performance of its each is an efficient cause without which
duties. The obligation of PNCC should not be relegated to, by the injury would not have happened, the
virtue of a private agreement, to other parties. injury may be attributed to all or any of
the causes and recovery may be had
against any or all of the responsible
PNCC declared the area free from obstruction since there were persons although under the
no piles of sugarcane, but evidence shows there were still circumstances of the case, it may appear
pieces of sugarcane stalks left flattened by motorists. There that one of them was more culpable, and
must be an observance of that degree of care, precaution, and that the duty owed by them to the
vigilance which the situation demands. There should have been injured person was not the same. No
sufficient warning devices considering that there were actor's negligence ceases to be a
scattered sugarcane stalks still left along the tollway. proximate cause merely because it does
not exceed the negligence of other
Moreover, the MOA refers to accidents or damages to the toll actors. Each wrongdoer is responsible for
facilities. It does not cover damages to property or injuries the entire result and is liable as though
caused to motorists on the NLEX who are not privies to the his acts were the sole cause of the injury.
MOA.
There is no contribution between joint tortfeasors whose
PASUDECO’s negligence in transporting sugarcanes without liability is solidary since both of them are liable for the total
proper harness/straps, and that of PNCC in removing the damage. Where the concurrent or successive negligent acts or
emergency warning devices, were two successive negligent omissions of two or more persons, although acting
acts which were the direct and proximate cause of Latagan’s independently, are in combination with the direct and
injuries. As such, PASUDECO and PNCC are jointly and severally proximate cause of a single injury to a third person, it is
liable. As the Court held in the vintage case of Sabido v. impossible to determine in what proportion each contributed
Custodio. to the injury and either of them is responsible for the whole
injury. Where their concurring negligence resulted in injury or
damage to a third party, they become joint tortfeasors and are
According to the great weight of authority, where the solidarily liable for the resulting damage under Article 2194 of
concurrent or successive negligent acts or omission of two or the Civil Code.
more persons, although acting independently of each other,
are, in combination, the direct and proximate cause of a single
injury to a third person and it is impossible to determine in Thus, with PASUDECO’s and the petitioner’s successive
what proportion each contributed to the injury, either is negligent acts, they are joint tortfeasors who are solidarily
responsible for the whole injury, even though his act alone liable for the resulting damage under Article 2194 of the New
might not have caused the entire injury, or the same damage Civil Code.41
might have resulted from the acts of the other tort-feasor.

In Far Eastern Shipping Company v. Court of Appeals,40 the Second Division

Court declared that the liability of joint tortfeasors is joint and
solidary, to wit: Loadmasters Customs Services v. Glodel Brokerage
GR No. 179446
January 10, 2011
It may be said, as a general rule, that
negligence in order to render a person Mendoza, J:
liable need not be the sole cause of an

JD-2 AUF-SOL MIDTERMS 57

 TORTS AND DAMAGES

been subrogated in the rights of Del

Facts: Monte Produce, who is not a party to
the contract of service between
o Columbia insured its shipment of 132 bundles of electric Mindanao Terminal and Del Monte, still
copper cathodes against all risks to R&B Insurance. the insurance carriers may have a cause
Columbia engaged the services of Glodel for the release of action in light of the Court’s
and withdrawal of the cargoes from the pier and the consistent ruling that the act that
subsequent delivery to its warehouse/plants. Glodel, in breaks the contract may be also a
turn, engaged the services of Loadmasters for the use of tort. In fine, a liability for tort may arise
its delivery trucks to transport the cargoes. The goods even under a contract, where tort is
were loaded on 12 trucks and were to be delivered to that which breaches the contract. In the
Bulacan and Valenzuela City (6 trucks each). present case, Phoenix and McGee
are not suing for damages for injuries
o However, one truck never reached its destination and arising from the breach of the contract
the copper cathodes loaded on the truck were lost. of service but from the alleged
Because of this, Columbia filed a claim for insurance negligent manner by which Mindanao
indemnity. R&B paid the claim. Being subrogated to the Terminal handled the cargoes belonging
rights of Columbia, it went after Glodel and Loadmasters to Del Monte Produce. Despite the
to recover the amount paid to Columbia. In the Court of absence of contractual relationship
Appeals, both Glodel and Loadmasters were found to be between Del Monte Produce and
liable for the amount paid by R&B. Mindanao Terminal, the allegation of
negligence on the part of the defendant
Issues: Whether or not Loadmasters is liable for damages should be sufficient to establish a cause
despite the absence of contractual relation with Columbia of action arising from quasi-delict.

Held: Yes, Loadmasters is liable for damages. It is liable

not for the breach of contract but from the alleged Additional [still (super) related to the topic]:
negligent manner by which it handled the cargoes Extent of the respective liabilities of Glodel and
of Columbia. Loadmasters

Ratio: Loadmasters’ claim that it was never privy to the What then is the extent of the respective liabilities
contract entered into by Glodel with the consignee of Loadmasters and Glodel? Each wrongdoer is
Columbia or R&B Insurance as subrogee, is not a liable for the total damage suffered by R&B
valid defense. It may not have a direct contractual Insurance. Where there are several causes for the
relation with Columbia, but it is liable for tort resulting damages, a party is not relieved from
under the provisions of Article 2176 of the Civil liability, even partially. It is sufficient that the
Code on quasi-delicts which expressly provide: negligence of a party is an efficient cause without
which the damage would not have resulted. It is no
ART. 2176. Whoever by act or omission defense to one of the concurrent tortfeasors that
causes damage to another, there being the damage would not have resulted from his
fault or negligence, is obliged to pay for negligence alone, without the negligence or
the damage done. Such fault or wrongful acts of the other concurrent tortfeasor.
negligence, if there is no pre-existing As stated in the case of Far Eastern Shipping v.
contractual relation between the Court of Appeals,
parties, is called a quasi-delict and is
governed by the provisions of this X x x. Where several causes producing
Chapter. an injury are concurrent and each is an
efficient cause without which the injury
Pertinent is the ruling enunciated in the case would not have happened, the injury
of Mindanao Terminal and Brokerage Service, Inc. may be attributed to all or any of the
v. Phoenix Assurance Company of New causes and recovery may be had against
York,/McGee & Co., Inc.19 where this Court held any or all of the responsible persons
that a tort may arise despite the absence of a although under the circumstances of
contractual relationship, to wit: the case, it may appear that one of
them was more culpable, and that the
We agree with the Court of Appeals that duty owed by them to the injured
the complaint filed by Phoenix and person was not the same. No actor's
McGee against Mindanao Terminal, negligence ceases to be a proximate
from which the present case has arisen, cause merely because it does not
states a cause of action. The present exceed the negligence of other actors.
action is based on quasi-delict, arising Each wrongdoer is responsible for the
from the negligent and careless loading entire result and is liable as though his
and stowing of the cargoes belonging to acts were the sole cause of the injury.
Del Monte Produce. Even assuming that
both Phoenix and McGee have only

JD-2 AUF-SOL MIDTERMS 58

 TORTS AND DAMAGES

There is no contribution between joint secluded place where it would not have cause injury
tortfeasors whose liability is solidary and B had taken it up anew on its errand of mischief,
since both of them are liable for the there would have been a new cause, not dependent
total damage. Where the concurrent or upon the first. Consequently, there is an efficient
successive negligent acts or omissions intervening cause in this last example.
of two or more persons, although acting
independently, are in combination the N.B. A cause is not an intervening cause if it is already in
direct and proximate cause of a single operation at the time the negligent act is committed.
injury to a third person, it is impossible
to determine in what proportion each Rodrigueza vs. Manila Electric Railroad
contributed to the injury and either of
them is responsible for the whole The house of the plaintiff was razed by fire because of the
injury. Where their concurring sparks emitted by one of the trains of defendant railroad
negligence resulted in injury or damage company. The fire started in one house and wind caused fire
to a third party, they become joint to transfer to another house until it reached plaintiff’s
tortfeasors and are solidarily liable for property. The wind was not an intervening cause because it
the resulting damage under Article 2194 was already in operation at the time the negligent act of the
of the Civil Code. defendant was performed. However, even if the wind was not
yet operating, the same cannot be considered an efficient
intervening cause because the wind did not break the chain of
4. Efficient intervening cause causation between the negligence of the defendant and the
resulting damage to the plaintiff.
One who destroys the causal connection between the
negligent act and the injury and thereby negatives
liability (novus actus interviens) Foreseeable intervening cause

An intervening cause will be regarded as the proximate The rule in this jurisdiction is to the effect that foreseeable
cause and the first cause as too remote, where the intervening causes cannot be considered sufficient intervening
chain of events is so broken that they become causes. Because there is an opportunity to guard against it.
independent and the result cannot be said to be the
In the above-discussed Rodrigueza case, even if the wind was not
consequence of the primary cause.
yet operating at the time the negligent act was committed, the
same cannot be considered an efficient intervening cause because
There is no efficient intervening cause if the force
it was a foreseeable intervening cause. The wind may be
created by the negligent act or omission have either:
considered a “common recurrent feature of the environment.” If
the intervening cause is a recurrent feature of the environment,
i. Remained active itself
they cannot be considered efficient because they are foreseeable.
ii. Created another force which remained
active until it directly caused the result i. Medical treatment as intervening cause
iii. Created a new active risk of being acted
upon by the active force that caused the A tortfeasor is liable for the consequence of
result. negligence, mistake, or lack of skill of a physician or
surgeon whose treatment aggravated the original
Test of the sufficiency of an intervening cause to
injury. The same is considered a normal and
defeat recovery for negligence:
foreseeable risk. The rule is based on the reasoning
i. It must be new and independent, not under that the additional harm is either: (1) a part of the
the control of the original wrongdoer, or original injury, (2) the natural and probable
one which by the exercise of reasonable consequences of the tortfeasor’s original negligence or
foresight and diligence, he should have (3) the normal incidence of medical care necessitated
anticipated and guarded against it. by the tortfeasor’s original negligence.
ii. It must break the continuity of causal
connection between the original negligent There will only be an efficient intervening cause
act or omission. where the original tortfeasor is not liable if the injured
iii. The injury so that the former cannot be said failed to exercise reasonable care in securing the
to have been the efficient cause of the services of a competent physician or surgeon.
latter.
ii. Unforeseen and unexpected act or cause
i.e. If A throws a hot object to B who in turn threw it
to C, there is an intervening cause in the absence of Africa vs. Caltex
which the C would not have been injured.
Nevertheless, A is liable because he had wrongfully set The defendant argued that the fire in the gasoline
in motion a force which continued to operate until it station which occurred while gasoline was being
cause the injury. If A had thrown the object in a unloaded was caused through the acts of a

JD-2 AUF-SOL MIDTERMS 59

 TORTS AND DAMAGES

stranger who, without authority, or permission of damages against Mercedes M. Teague as owner and
answering defendant, passed through the gasoline operator of Realistic Institute.
station and negligently threw a lighted match in
the premises. o CFI found for the defendant and dismissed the case. This
was however, reversed by the CA. The CA held that
The Supreme Court ruled that no evidence on this petitioner was negligent and that such negligence was
point was adduced, but assuming the allegation to the proximate cause of the death of Lourdes Fernandez.
be true it does not extenuate defendant’s This finding of negligence is based primarily on the fact
negligence. The Supreme Court adopted the view that the provision of Section 491 Of the Revised
that “if the effects of the actor’s negligent conduct Ordinances of the City of Manila had not been complied
actively and continuously operate to bring about with in connection with the construction and use of the
harm to another, the fact that the active and Gil-Armi building. The alleged violation of the ordinance
substantially simultaneous operation of the effects consisted in the fact that the second storey of the Gil-
of a third person’s innocent, tortious or criminal Armi building had only one stairway, 1.5 meters wide,
act is also a substantial factor in bringing about the instead of two of at least 1.2 meters each, although at
harm, does not protect the actor from liability. the time of the fire the owner of the building had a
Stated in another way, the intervention of an second stairway under construction.
unforeseen and unexpected cause, is not sufficient
to relieve a wrongdoer from consequences of o The petitioner avers that the violation of the ordinance
negligence, if such negligence directly and was only a remote cause, if at all, and cannot be the
proximately cooperates with the independent basis of liability since there intervened a number of
cause in the resulting injury.’’ independent causes which produced the injury
complained of. According to the petitioner “the events
of fire, panic and stampede were independent causes
An unforseen and unexpected act of a third person with no causal connection at all with the violation of the
may not therefore be considered efficient intervening ordinance.”
cause if it is duplicative in nature or if it merely
aggravated the injury that resulted because of a Issue: WON failure to comply with the requirement of the
priorcause. ordinance was the proximate cause of the death of Lourdes
Fernandez.

Held: Yes
TEAGUE V. FERNANDEZ
Gr. No. L-29745 (1973)
Ratio: As a general rule, the violation of an ordinance was
only a remote cause, if at all, and cannot be the basis of
Facts:
liability since there intervened a number of independent
causes which produced the injury complained of. It is true that
o The Realistic Institute situated on the second floor of the
in this particular case there would have been no overcrowding
Gil-Armi Building, a two-storey, semi-concrete edifice
in the single stairway if there had not been a fire in the
located at the corner of Quezon Boulevard and Soler
neighborhood which caused the students to panic and rush
Street, Quiapo, Manila was owned and operated by
headlong for the stairs in order to go down. But it was
Teague. The second floor was unpartitioned, had a total
precisely such contingencies or event that the authors of the
area of about 400 square meters, and although it had
ordinance had in mind, for under normal conditions one
only one stairway, of about 1.50 meters in width, it had
stairway would be adequate for the occupants of the building.
eight windows, each of which was provided with two
Thus, as stated in 38 American Jurisprudence, page 841: "The
fire-escape ladders and the presence of each of said fire-
general principle is that the violation of a statute or ordinance
exits was indicated on the wall.
is not rendered remote as the cause of an injury by the
intervention of another agency if the occurrence of the
o October 24, 1955, around 4pm, a fire broke out in a
accident, in the manner in which it happened, was the very
store for surplus materials located about ten meters
thing which the statute or ordinance was intended to
away from the institute (across the street). Upon seeing
prevent." Here, overcrowding at the stairway was the
the fire, some of the students in the Realistic Institute
proximate cause and that it was precisely what the ordinance
shouted ‘Fire! Fire!’ and thereafter, a panic ensued. Four
intended to prevent by requiring that there be two stairways
instructresses and six assistant instructress of the
instead of only one. Hence, the principle of proximate cause
Institute were present and they, together with the
applies to such violation.
registrar, tried to calm down the students, who
numbered about 180 at the time. The panic, however,
Q:THE ORDINANCE WHICH HAS BEEN VIOLATED WAS NOT
could not be subdued and the students, with the
SPECIFICALLY ALLEGED IN THE COMPLAINT. WILL THAT NOT
exception of the few who made use of fire-escapes kept
EXONERATETEAGUE FROM HIS LIABILITY?
on rushing and pushing their way through the stairs,
thereby causing stampede therein. No part of the Gil-
NO. The violation, as an act of negligence which
Armi Building caught fire. But, after the panic was over,
gave rise to liability, was sufficiently comprehended within
four students, including Lourdes Fernandez, a sister of
paragraph 7 of the complaint, which reads: .
plaintiffs-appellants, were found dead and several
others injured on account of the stampede. The
deceased’s five brothers and sisters filed an action for

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 TORTS AND DAMAGES

Par. 7. That the death of Lourdes Fernandez was due to symptomatic within 14 days. A short incubation period
the gross negligence of the defendant who failed to exercise indicates severe disease, and when symptoms occur within 2
due care and diligence for the safety of its students in not or 3 days of injury the mortality rate approaches 100
providing the building with adequate fire exits and in not percent.
practicing fire drill exercises to avoid the stampede, aside
from the fact that the defendant did not have a permit to use
Proximate cause has been defined as "that cause, which, in
the building as a school-house.
natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which the
result would not have occurred."
G.R. No. 186412 September 7, 2011

We explained in Urbano v. Intermediate Appellate Court that:

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
ORLITO VILLACORTA, Accused-Appellant. The rule is that the death of the victim must be the
direct, natural, and logical consequence of the
wounds inflicted upon him by the accused. And
LEONARDO-DE CASTRO, J.: since we are dealing with a criminal conviction, the
proof that the accused caused the victim's death
Facts: must convince a rational mind beyond reasonable
doubt. The medical findings, however, lead us to a
distinct possibility that the infection of the wound
o On January 23, 2002, accused Villacorta stabbed by tetanus was an efficient intervening cause later
Danilo Cruz on the left side of Cruz’s body using a or between the time Javier was wounded to the
sharpened bamboo stick. The bamboo stick broke time of his death. The infection was, therefore,
and was left in Cruz’s body. When Mendeja distinct and foreign to the crime.
returned to her store, she saw her neighbor Aron
removing the broken bamboo stick from Cruz’s
body.5 Doubts are present. There is a likelihood that the
o Mendeja and Aron then brought Cruz to Tondo wound was but the remote cause and its
Medical Center where the latter was treated as an subsequent infection, for failure to take necessary
out-patient. Nevertheless, On February 14, 2002, precautions, with tetanus may have been the
Cruz was admitted to the San Lazaro Hospital for proximate cause of Javier's death with which the
symptoms of severe tetanus infection, where he petitioner had nothing to do.
died the following day, on February 15, 2002.
While admitting that he did not personally treat "A prior and remote cause cannot be made the basis of an
Cruz, Dr. Belandres, Head of the Tetanus action if such remote cause did nothing more than furnish the
Department, was able to determine that Cruz died condition or give rise to the occasion by which the injury was
of tetanus infection secondary to stab wound. made possible, if there intervened between such prior or
o A case was filed against Vilacorta accusing him of remote cause and the injury a distinct, successive, unrelated,
murder. Subsequently, the RTC rendered a and efficient cause of the injury, even though such injury
Decision finding Villacorta guilty of murder, would not have happened but for such condition or occasion.
qualified by treachery. If no danger existed in the condition except because of the
o It is now contented by Villacorta that in the event independent cause, such condition was not the proximate
he is found to have indeed stabbed Cruz, he should cause. And if an independent negligent act or defective
only be held liable for slight physical injuries for the condition sets into operation the instances, which result in
stab wound he inflicted upon Cruz. The proximate injury because of the prior defective condition, such
cause of Cruz’s death is the tetanus infection, and subsequent act or condition is the proximate cause."
not the stab wound.

In this case. There had been an interval of 22 days between

Issue: WON an efficient intervening cause is present in this the date of the stabbing and the date when Cruz was rushed
case between the time Cruz was stabbed to the time of his to San Lazaro Hospital, exhibiting symptoms of severe tetanus
death; rendering the tetanus infection the proximate cause of infection. If Cruz acquired severe tetanus infection from the
Cruz’s death, and not the stab wound. stabbing, then the symptoms would have appeared a lot
sooner than 22 days later. As the Court noted in Urbano,
Held: YES severe tetanus infection has a short incubation period, less
than 14 days; and those that exhibit symptoms with two to
three days from the injury, have one hundred percent (100%)
Ratio: mortality. Ultimately, we can only deduce that Cruz’s stab
wound was merely the remote cause, and its subsequent
We look into the nature of tetanus- infection with tetanus might have been the proximate cause
of Cruz's death. The infection of Cruz’s stab wound by
tetanus was an efficient intervening cause later or between
"The incubation period of tetanus, i.e., the time between injury
the time Cruz was stabbed to the time of his death.
and the appearance of unmistakable symptoms, ranges from 2
to 56 days. However, over 80 percent of patients become

JD-2 AUF-SOL MIDTERMS 61

 TORTS AND DAMAGES

However, Villacorta is not totally without criminal liability. A person who, knowing that he is exposed to a
Villacorta is guilty of slight physical injuries under Article dangerous condition and voluntarily assumes it may
266(1) of the Revised Penal Code for the stab wound he not recover from the defendant who maintained such
inflicted upon Cruz. Although the charge in the instant case is dangerous conditions.
for murder, a finding of guilt for the lesser offense of slight
physical injuries may be made considering that the latter Kinds of dangerous conditions:
offense is necessarily included in the former since the
essential ingredients of slight physical injuries constitute and i. Those that inherently dangerous - they retain their
form part of those constituting the offense of murder.
potential energy in full, even if they are stored or
handled with utmost care.
NOTES: WHAT IS AN EFFICIENCT INTERVENING CAUSE OR
WHEN IS THERE SUCH? i.e. One buries radioactive waste or hazardous
chemicals in his backyard. A small change in
An independent negligent act or defective condition sets into
temperature or humidity result to injuries to other
operation the instances, which result in injury because of the
people.
prior defective condition, such subsequent act or condition is
the proximate cause."
ii. Those where a person places a thing which is not
Note: ELEMENTS/CHARACTERISTICS of an efficient dangerous in itself, in a dangerous position - cases
intervening cause is that it is 1) INDEPENDENT from the prior where objects are placed in such a way that
negligent act other people’s right of way is not recognized.
Must have occured 2) SUBSEQUENTLY
3) RESULTS IN INJURY i.e. a dangerous condition was created because a truck
Effect: the intervening cause would now be considered as the was parked askew in such a way that it partly blocks
proximate cause ongoing traffic.
When event considered remote cause
If no danger existed in the condition EXCEPT BECAUSE OF THE Cases where objects are placed in an unstable position
INDEPENDENT CAUSE(efficient intervening cause), such
where the application of small force will permit the
condition was not the proximate cause.
release of some greater force.
NOTES: RULES WHEN THERE IS EFFICIENT INTERVENING
CAUSE i.e. If a person leaves a rock in an unstable position on
top of a steep hill, there is a great possibility that
somebody will be injured because it is bound to be
Proximate cause is "that cause, which, in natural and
pulled on the ground by the force of gravity.
continuous sequence, unbroken by any efficient intervening
cause, produces the injury, and without which the result would
not have occurred." iii. Those involving products and other things which are
dangerous because they are defective - Includes
defective construction of a building. The thing itself is
Accordingly, an act/event cannot be considered as the
not supposed to be dangerous but it was negligently or
proximate cause of an injury if there is an efficient intervening
erroneously produced or constructed.
cause between the time of event to the time of injury
EN BANC
If efficient intervening cause is present, the said act/event
then will be merely considered as a prior and remote cause
RULES WITH RESPECT TO Prior and remote cause REMIGIO RODRIGUEZ, ET AL., vs THE MANILA RAILROAD
A prior and remote cause cannot be made the basis of an COMPANY
action When such remote cause merely, furnishes the
condition or gives rise to the occasion by which the injury was G.R. No. L-15688 November 19, 1921
made possible
 if there intervened between such prior or remote
PONENTE: STREET, J.:
cause and the injury a distinct, successive,
unrelated, and efficient cause of the injury
Even though such injury would not have happened but for Facts:
such condition or occasion.
o This action was instituted jointly by Remigio Rodriguez
and three others in the Court of First Instance of the
5. Dangerous conditions Province of Albay to recover a sum of money of the
Manila Railroad Company as damages resulting from a
Even if the defendant had only created a condition, he fire kindled by sparks from a locomotive engine.
may be held liable for damages if such condition o The defendant Railroad Company operates a line, that on
resulted in harm to either person or property. January 29, 1918, as one of its trains passed over said line,
a great quantity of sparks were emitted from the
smokestack of the locomotive, fire occurred immediately

JD-2 AUF-SOL MIDTERMS 62

 TORTS AND DAMAGES

after the passage of the train with a strong wind blowing destructive of his right of action, because, first, that condition
at the time it consumed four houses. It is stated in the was not created by himself; secondly, because his house
Railroad Company’s brief that the fire was first remained on this ground by the toleration, and therefore with
communicated to the house of Remigio Rodriguez, from the consent of the Railroad Company; and thirdly, because
whence it spread to the others. All of these houses were even supposing the house to be improperly there, this fact
of light construction with the exception of the house of would not justify the defendant in negligently destroying it.
Remigio Rodrigueza, which was of strong materials, (Grand Trunk Railway of Canada vs. Richardson, 91 U. S., 454;
though the roof was covered with nipa and cogon. 23 L. ed., 356; Norfolk etc. Ry. Co. vs. Perrow, 101 Va., 345,
o It is alleged that the defendant Railroad Company was 350.)lawphil.net
conspicuously negligent in relation to the origin of said
fire, in the following respects, namely, first, in failing to
exercise proper supervision over the employees in charge G.R. No. L-47851 October 3, 1986
of the locomotive; secondly, in allowing the locomotive JUAN F. NAKPIL & SONS, and JUAN F. NAKPIL, petitioners,
which emitted these sparks to be operated without vs. THE COURT OF APPEALS, UNITED CONSTRUCTION
having the smokestack protected by some device for COMPANY, INC., JUAN J. CARLOS, and the PHILIPPINE BAR
arresting sparks; thirdly, in using in its locomotive upon ASSOCIATION, respondents.
this occasion Bataan coal, a fuel of known inferior quality G.R. No. L-47863 October 3, 1986
which, upon combustion, produces sparks in great THE UNITED CONSTRUCTION CO., INC., petitioner,
quantity. vs. COURT OF APPEALS, ET AL., respondents.
o The sole ground upon which the defense is rested is that G.R. No. L-47896 October 3, 1986
the house of Remigio Rodrigueza stood partly within the PHILIPPINE BAR ASSOCIATION, ET AL., petitioners,
limits of the land owned by the defendant company, the vs. COURT OF APPEALS, ET AL., respondents.
company notified Rodriguez to get his house off the land
of the company and to remove it from its exposed Facts:
position. Rodriguez did not comply with this suggestion,
though he promised to put an iron roof on his house,  The plaintiff, Philippine Bar Association, a civic-non-
which he never did. it is contended for the defense that profit association decided to construct an office building
there was contributory negligence on the part of Remigio  The construction was undertaken by the United
Rodrigueza in having his house partly on the premises of Construction, Inc. on an "administration" basis, on the
the Railroad Company, and that for this reason the suggestion of Juan J. Carlos, the president and general
company is not liable. manager of said corporation.
 The proposal was approved by plaintiff's board of
Issue: 1. WON Rodriguez bears the risk of loss due to the directors and signed by its president Roman Ozaeta, a
dangerous conditions whence he built his house (MAIN) third-party defendant in this case.
 The plans and specifications for the building were prepared
by the other third-party defendants Juan F. Nakpil & Sons.
2. WON Railroad Company is not liable for the other The building was completed in June, 1966
3 house owners because the fire would not have reached the  In the early morning of August 2, 1968 an unusually strong
other 3 houses where it not through the fire which was caught earthquake hit Manila and the building in question
by Rodriguez house which in turn communicated the fire to the sustained major damage.
other houses. (EXTRA) o The tenants vacated the building in view of its
precarious condition.
Held: No on both issues.  The plaintiff commenced this action for the recovery of
damages arising from the partial collapse of the building
against United Construction, Inc. and its President and
Ratio: Answer must be qualified.
General Manager Juan J. Carlos as defendants.
o Plaintiff alleges that the collapse of the building was
So long as his house remained in this exposed position, he due to the defects in the construction, the failure of
undoubtedly assumed the risk of any loss that might have the contractors to follow plans and specifications
resulted from fires occasioned by the defendant's locomotives and violations by the defendants of the terms of the
if operated and managed with ordinary care. But he cannot contract.
be held to have assumed the risk of any damage that might  Defendants in turn filed a third-party complaint against the
result from the unlawful negligence acts of the defendant. architects who prepared the plans and specifications,
Nobody is bound to anticipate and defend himself against the alleging in essence that the collapse of the building was due
possible negligence of another. Rather he has a right to assume to the defects in the said plans and specifications.
that the other will use the care of the ordinary prudent man  Meanwhile, plaintiff moved twice for the demolition of the
building on the ground that it may topple down in case of a
In the situation now under consideration the proximate and strong earthquake.
only cause of the damage that occurred was the negligent act o The building was authorized to be demolished at the
of the defendant in causing this fire. The circumstance that expense of the plaintiff, but another earthquake of
Remigio Rodrigueza's house was partly on the property of the high intensity followed by other strong earthquakes
defendant company and therefore in dangerous proximity to on caused further damage to the property.
passing locomotives was an antecedent condition that may in
fact have made the disaster possible, but that circumstance Issue: WON an act of God-an unusually strong earthquake-
cannot be imputed to him as contributory negligence which caused the failure of the building, exempts from

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 TORTS AND DAMAGES

liability, parties who are otherwise liable because of their o While the third-party defendants were found to have
negligence? inadequacies or defects in the plans and
specifications prepared by them.
Ruling:  The defects in the construction and in the plans and
The applicable law governing the rights and liabilities of the specifications were the proximate causes that rendered
parties herein is Article 1723 of the New Civil Code. the PBA building unable to withstand the earthquake of
August 2, 1968.
Art. 1723. The engineer or architect who drew up the plans and
specifications for a building is liable for damages if within
One who negligently creates a dangerous condition
fifteen years from the completion of the structure the same
cannot escape liability for the natural and probable
should collapse by reason of a defect in those plans and
consequences thereof, although the act of a third
specifications, or due to the defects in the ground. The
person, or an act of God for which he is not responsible,
contractor is likewise responsible for the damage if the edifice
intervenes to precipitate the loss.
fags 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. DEFENSES IN NEGLIGENCE CASES

Kinds of defences:
Acceptance of the building, after completion, does not imply
waiver of any of the causes of action by reason of any defect
I. Complete – Completely bars recovery
mentioned in the preceding paragraph.
o Assumption of risks
The action must be brought within ten years following the o Caso Fortuito
collapse of the building. II. Partial – Mitigates liability
o Contributory negligence
GR: ART 1174 No person shall be responsible for events which
could not be foreseen or which though foreseen, were 1. Due Diligence
inevitable
G.R. No. 165413 February 22, 2012
ACT OF GOD -- an accident, due directly and exclusively to
natural causes without human intervention, which by no PHILAM INSURANCE COMPANY, INC. and AMERICAN HOME
amount of foresight, pains or care, reasonably to have been INSURANCE CO., Petitioners,
expected, could have been prevented. vs.
 The earthquake of August 2, 1968 is a fortuitous event COURT OF APPEALS, and D.M. CONSUNJI INC., Respondents.
or an act of God.

To exempt the obligor from liability under Article 1174 for a SERENO, J.:
breach of an obligation due to an "act of God," the following
must concur: Facts:
a. the cause of the breach of the obligation must be o Four gensets from the United States of America were
independent of the will of the debtor; ordered by Citibank, N.A. (Citibank). Petitioner AHIC
b. the event must be either unforseeable or unavoidable; insured these gensets under Certificate No. 60221 for
c. the event must be such as to render it impossible for the USD 851,500 covering various risk. The insurance policy
debtor to fulfill his obligation in a normal manner; and
provided that the claim may be paid in the Philippines by
d. the debtor must be free from any participation in, or
Philam Insurance Co., Inc, AHICs local settling agent.
aggravation of the injury to the creditor.
o Citibanks broker-forwarder, Melicia International
Services (MIS), transported the gensets in separate
 When the negligence of a person concurs with an act of
God in producing a loss, such person is not exempt from container vans. It was instructed by Citibank to deliver
liability by showing that the immediate cause of the and haul one genset to Makati City,where the latters
damage was the act of God. office was being constructed by the building contractor,
o To be exempt from liability for loss because of an act DMCI.
of God, he must be free from any previous o MIS was further instructed to place the 13-ton genset ] at
negligence or misconduct by which that loss or the top of Citibanks building. The broker-forwarder
damage may have been occasioned.
declined, since it had no power cranes.] Thus, Citibank
 The negligence of the defendant and the third-party assigned the job to private respondent DMCI, which
defendants was established beyond dispute accepted the task.
o Defendant United Construction Co., Inc. was found o On 16 October 1993, DMCI lifted the genset with a crane
to have made substantial deviations from the plans (Unic-K-2000) that had a hydraulic telescopic boom and a
and specifications and have failed to observe the loading capacity of 20 tons.] During the lifting process,
requisite workmanship in the construction as well as both the cranes boom and the genset fell and got
to exercise the requisite degree of supervision;
damaged.

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 TORTS AND DAMAGES

o After two days, DMCIs surveyor, Manila Adjusters &

Surveyors Co. (MASC) assessed the condition of the crane
and the genset.[12] According to its Survey Certificate, the 1. A whole team was involved in transferring the genset.
genset was already deformed.[13] Petitioners did not even the question the acts of the other team
o Citibank demanded from DMCI the full value of the
members involved in the crane operations.
damaged genset, including the cost, insurance and freight
amounting to USD 212,850.[14] Private respondent
refused to pay, asserting that the damage was caused by 2. Del Pilar exercised reasonable care and caution when he
an accident.[15]
tested the crane four times right before actual operations to
o Thereafter, Citibank filed an insurance claim with Philam,
AHICs local settling agent, for the value of the make sure that it could lift the genset.
genset. Philam paid the claim for PhP 5,866,146.[16]
o Claiming the right of subrogation, Philam demanded the
3. Del Pilar stopped turning the controls, and it was only when
reimbursement of the gensets value from DMCI, which
denied liability.[17] Thus, on 19 April 1994, Philam filed a the swinging stopped that he performed the next maneuver. All
Complaint with the RTC to recover the value of the
of these acts, as proven by the evidence, showed due diligence
insured genset.[18]
o At the trial court, petitioner Philam did not invoke res ipsa in operating the crane.
loquitur. Rather, during the pre-trial conference, the
parties agreed on this sole issue: Whether or not the
damage was the fault of the defendant or within their
area of supervision at the time the cause of damage
occurred. Negligence is the want of care required by the

circumstances.[26] It is a conduct that involves an

The RTC ruled in favor of Philam - that the loss or damage to
unreasonably great risk of causing damage; or, more fully,
the genset was due to the negligent operation of the crane.
a conduct that falls below the standard established by law

for the protection of others against unreasonably great risk

CA – REVERSED; that the falling of the genset was a clear case
of harm.
of accident and, hence, DMCI could not be held responsible.

DISCUSSION
Issue: WON petitioners have sufficiently established the

negligence of DMCI for the former to recover the value of the

Philam blames the conduct of DMCIs crane operator for the
damaged genset
gensets fall. Essentially, it points out the following errors in

operating the crane:

Held: NO, Philam failed to establish DMCIs negligence.

1. Del Pilar did not give any reason for his act of raising the
Ratio: DMCI exercised due diligence. The event is an accident;
boom from 75 to 78 degrees at the stage when the genset was
and that consequently Philam cannot claim damages for the
already set for lowering to the ground
damaged genset. -> (JUSTIFICATION) it had to be raised three (3) degrees in order
to put it exactly in the proper designation.
For DMCI to be liable for damages, negligence on its part must

be established.] Additionally, that finding must be the 2. Del Pilars revving of the motor of the boom triggered the

proximate cause of the damage to the genset. chain of events starting with the jerk, then followed by the

swinging of the genset which was obviously violent as it caused

DMCI exercised the necessary care and precaution in lifting the the body of the crane to tilt upward, and ultimately, caused the
genset. boom with the genset to fall.

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 TORTS AND DAMAGES

->(JUSTIFICATION) Philam emphasized the apparent

Applying the test, the circumstances would show
inconsistencies in Del Pilars narration. In his signed statement,
that the acts of the crane operator were rational and justified.
executed 15 days after the incident, Del Pilar stated that when

he raised the boom from 75 to 78 degrees, he revved the

Logically, in order to raise the cranes boom, the
motor, upon which he felt the sudden upward movement (jerk)
operator must step on the pedal; else, the 13-ton genset would
of the boom followed by the swinging of the genset.[32]
not be brought down. Philam did not even present expert

evidence to challenge the need of increasing the power supply

But in his affidavit, executed already during the trial,
to move the boom.
Del Pilar mentioned that he moved the boom slowly when he

raised it to 78 degrees. Del Pilars statements concentrated on

the manner of lifting of the genset. The speculative assertion of Philam should be

supported by specific evidence of the cranes defects. Instead,

Examining the signed statement and the affidavit of Philam utterly failed to contradict the findings of MASC which
Del Pilar, petitioner Philam inaccurately portrayed his made an actual site inspection to observe the crane used in
narration. lifting the genset.

The affidavit pertained exactly to how the cranes

Additional:
boom had been raised. It is only when a witness makes two sworn Res ipsa loquitor – not applicable, since there is direct
evidence[49] on the issue of diligence or lack thereof pertaining
statements, and these two statements incur the gravest to the lifting of the genset. The doctrine is not a rule of
contradictions, that the court cannot accept both statements as substantive law, but merely a mode of proof or a mere
procedural convenience.
proof.

2. Plaintiff’s own negligence

Even if Del Pilar failed to mention the slow manner
The victim of negligence is likewise required to exercise due care
of raising the boom in his earlier signed statement, the reverse
in avoiding injury to himself. He ought to conform to the standard
is not necessarily established. Persons are easily liable to of a reasonable man for his own protection.

commit errors in the recollection of minute details of an o Plaintiff’s own negligence as the proximate cause

important occurrence. [Art. 2179] When the plaintiff’s own negligence was the
immediate and proximate cause of his injury, he cannot
recover damages. But if his negligence was only
Not all omissions can be considered as negligent.
contributory, the immediate and proximate cause of the
The test of negligence is as follows: injury being the defendants lack of due care, the
plaintiff may recover damages, but the courts shall
mitigate the damages to be awarded.
Could a prudent man, in the
case under consideration, foresee harm
as a result of the course actually
pursued? If so, it was the duty of the The just thing is that a man should suffer the damage which
actor to take precautions to guard comes to him through his own fault, and that he can not demand
against that harm. Reasonable foresight reparation therefor from another.
of harm, followed by ignoring of the
suggestion born of this prevision, is According to ancient sages, when a man received an injury
always necessary before negligence can through his own acts the grievance should be against himself and
be held to exist.[30] not against another.

o Contributory negligence

Conduct on the part of the injured party, contributing as a legal

cause to the harm he has suffered, which falls below the standard

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 TORTS AND DAMAGES

to which he is required to conform for his own protection. Company (Barte, for short), an independent contractor
(Valenzuela vs. Court of Appeals). which undertook the construction of the manhole and the
conduit system. Accordingly, PLDT filed a third-party
[Article 2214] In quasi-delicts, the contributory
complaint against Barte alleging that, under the terms of
negligence of the plaintiff shall reduce the damages that
he may recover. their agreement, PLDT should in no manner be
answerable for any accident or injuries arising from the
negligence or carelessness of Barte or any of its
Doctrine of comparative negligence - any rule under which the employees. In answer thereto, Barte claimed that it was
relative degree of negligence of the parties is considered in not aware nor was it notified of the accident involving
determining whether, and to what degree, either should be respondent spouses and that it had complied with the
responsible for his negligence. The rules involve apportionment of terms of its contract with PLDT by installing the necessary
damages. Under the “pure” type of comparative negligence, the and appropriate standard signs in the vicinity of the work
plaintiff’s contributory negligence does not operate to bar his site, with barricades at both ends of the excavation and
recovery altogether but does serve to reduce his damage in
with red lights at night along the excavated area to warn
proportion to his fault.
the traveling public of the presence of excavations.
At the time the Civil Code was enacted, the prevailing rule in the
United States was the doctrine of contributory negligence. (Rakes TC: Rendered a decision in favor of the spouses Esteban.
vs. Atlantic Gulf and Pacific Co., supra). However, as of 1991, the CA: Reversed TC’s decision. An MR was filed, but was denied.
CA: A second MR was filed; a reso was issued, reversing the
prevailing rule was already the doctrine of comparative
original decision.
negligence.
Issue: WON the accident which befell private respondents was
The court is free to determine the extent of the mitigation of the
due to the lack of diligence of respondent Antonio Esteban and
defendant’s liability depending on the circumstances.
was not imputable to negligent omission on the part of
petitioner PLDT.
Contributory negligence Doctrine of comparative
(Common law) negligence
Held: YES.
Negligence of the defendant Does not completely bar
which contributes to his recovery but merely Ratio: The Court found no error in the findings of the
injury completely bars mitigates the same. respondent court in its original decision that the accident which
recovery. befell private respondents was due to the lack of diligence of
respondent Antonio Esteban and was not imputable to
negligent omission on the part of petitioner PLDT. Such findings
[G.R. No. 57079. September 29, 1989.] were reached after an exhaustive assessment and evaluation of
PHILIPPINE LONG DISTANCE TELEPHONE CO., INC. petitioner, the evidence on record, as evidenced by the CA's resolution of
vs. COURT OF APPEALS and SPOUSES ANTONIO ESTEBAN and January 24, 1980, which the Court quoted with approval:
GLORIA ESTEBAN, respondents.
"First. Plaintiff's jeep was running along the inside lane of
Facts: Lacson Street. If it had remained on that inside lane, it would
o This case had its inception in an action for damages not have hit the ACCIDENT MOUND.
instituted in the former Court of First Instance of Negros
Occidental by private respondent spouses against "Exhibit B shows, through the tiremarks, that the ACCIDENT
petitioner Philippine Long Distance Telephone Company MOUND was hit by the jeep swerving from the left that is,
swerving from the inside lane. What caused the swerving is not
(PLDT, for brevity) for the injuries they sustained in the
disclosed; but, as the cause of the accident, defendant cannot
evening of July 30, 1968 when their jeep ran over a be made liable for the damages suffered by plaintiffs. The
mound of earth and fell into an open trench, an accident was not due to the absence of warning signs, but to
excavation allegedly undertaken by PLDT for the the unexplained abrupt swerving of the jeep from the inside
installation of its underground conduit system. The lane. That may explain plaintiff-husband's insistence that he did
complaint alleged that respondent Antonio Esteban failed not see the ACCIDENT MOUND for which reason he ran into it.
to notice the open trench which was left uncovered
"Second. That plaintiff's Jeep was on the inside lane before it
because of the creeping darkness and the lack of any
swerved to hit the ACCIDENT MOUND could have been
warning light or signs. As a result of the accident, corroborated by a picture showing Lacson Street to the south
respondent Gloria Esteban allegedly sustained injuries on of the ACCIDENT MOUND.
her arms, legs and face, leaving a permanent scar on her
cheek, while the respondent husband suffered cut lips. In "It has been stated that the ditches along Lacson Street had
addition, the windshield of the jeep was shattered. already been covered except the 3 or 4 meters where the
ACCIDENT MOUND was located. Exhibit B-1 shows that the
o PLDT, in its answer, denies liability on the contention that
ditches on Lacson Street north of the ACCIDENT MOUND had
the injuries sustained by respondent spouses were the already been covered, but not in such a way as to allow the
result of their own negligence and that the entity which outer lane to be freely and conveniently passable to vehicles.
should be held responsible, if at all, is L.R. Barte and The situation could have been worse to the south of the

JD-2 AUF-SOL MIDTERMS 67

 TORTS AND DAMAGES

ACCIDENT MOUND for which reason no picture of the had knowledge of the presence and location of the
ACCIDENT MOUND facing south was taken. excavations there. It was his negligence that exposed him and
his wife to danger, hence he is solely responsible for the
Third. Plaintiff's jeep was not running at 25 kilometers an hour consequences of his imprudence.
as plaintiff-husband claimed. At that speed, he could have
braked the vehicle the moment it struck the ACCIDENT Moreover, the Court also sustained the findings of respondent
MOUND. The jeep would not have climbed the ACCIDENT Court of Appeals in its original decision that there was
MOUND several feet as indicated by the tiremarks in Exhibit B. insufficient evidence to prove any negligence on the part of
The jeep must have been running quite fast. If the jeep had PLDT. It had for consideration only the self-serving testimony
been braked at 25 kilometers an hour, plaintiffs would not have of respondent Antonio Esteban and the unverified photograph
been thrown against the windshield and they would not have of merely a portion of the scene of the accident. The absence
suffered their injuries. of a police report of the incident and the non-submission of a
medical report from the hospital where private respondents
"Fourth. If the accident did not happen because the jeep was were allegedly treated has not even been satisfactorily
running quite fast on the inside lane and for some reason or explained.
other it had to swerve suddenly to the right and had to climb
over the ACCIDENT MOUND, then plaintiff-husband had not As aptly observed by the CA in its aforecited extended
exercised the diligence of a good father of a family to avoid the resolution of January 24, 1980:
accident. With the drizzle, he should not have run on dim lights,
but should have put on his regular lights which should have "(a) There was no third party eyewitness of the accident. As to
made him see the ACCIDENT MOUND in time. If he was running how the accident occurred, the Court can only rely on the
on the outside lane at 25 kilometers an hour, even on dim testimonial evidence of plaintiffs themselves, and such
lights, his failure to see the ACCIDENT MOUND in time to brake evidence should be very carefully evaluated, with defendant, as
the car was negligence on his part. The ACCIDENT MOUND was the party being charged, being given the benefit of any doubt.
relatively big and visible, being 2 to 3 feet high and 1-1/2 feet Definitely without ascribing the same motivation to plaintiffs,
wide. If he did not see the ACCIDENT MOUND in time, he would another person could have deliberately engineered a similar
not have seen any warning sign either. He knew of the accident in the hope and expectation that the Court can grant
existence and location of the ACCIDENT MOUND, having seen him substantial moral and exemplary damages from the big
it many previous times. With ordinary precaution, he should corporation that defendant is. The statement is made only to
have driven his jeep on the night of the accident so as to avoid stress the disadvantageous position of defendant which would
hitting the ACCIDENT MOUND." have extreme difficulty in contesting such person's claim. If
there were no witness or record available from the police
The above findings clearly show that the negligence of department of Bacolod, defendant would not be able to
respondent Antonio Esteban was not only contributory to his determine for itself which of the conflicting testimonies of
injuries and those of his wife but goes to the very cause of the plaintiffs is correct as to the report or non-report of the
occurrence of the accident, as one of its determining factors, accident to the police department."
and thereby precludes their right to recover damages. The
perils of the road were known to, hence appreciated and A person claiming damages for the negligence of another has
assumed by, private respondents. By exercising reasonable the burden of proving the existence of such fault or negligence
care and prudence, respondent Antonio Esteban could have causative thereof. The facts constitutive of negligence must be
avoided the injurious consequences of his act, even assuming affirmatively established by competent evidence. Whosoever
arguendo that there was some alleged negligence on the part relies on negligence for his cause of action has the burden in
of petitioner. the first instance of proving the existence of the same if
contested, otherwise his action must fail.
The presence of warning signs could not have completely
prevented the accident; the only purpose of said signs was to WHEREFORE, the resolutions of respondent Court of Appeals,
inform and warn the public of the presence of excavations on dated March 11, 1980 and September 3, 1980, are hereby SET
the site. The private respondents already knew of the ASIDE. Its original decision, promulgated on September 25,
presence of said excavations. It was not the lack of knowledge 1979, is hereby REINSTATED and AFFIRMED.
of these excavations which caused the jeep of respondents to SO ORDERED.
fall into the excavation but the unexplained sudden swerving
of the jeep from the inside lane towards the accident mound.
As opined in some quarters, the omission to perform a duty,
such as the placing of warning signs on the site of the G.R. No. 139130. November 27, 2002]
excavation, constitutes the proximate cause only when the RAMON K. ILUSORIO, petitioner, vs. HON. COURT OF
doing of the said omitted act would have prevented the APPEALS, and THE MANILA
injury. It is basic that private respondents cannot charge PLDT BANKING CORPORATION, respondents.
for their injuries where their own failure to exercise due and QUISUMBING, J.:
reasonable care was the cause thereof. It is both a societal
norm and necessity that one should exercise a reasonable Facts:
degree of caution for his own protection. Furthermore, o Petitioner entrusted to his secretary his credit cards and
respondent Antonio Esteban had the last clear chance or his checkbook with blank checks. His secretary, thru
opportunity to avoid the accident, notwithstanding the
falsification, encashed and deposited to her personal
negligence he imputes to petitioner PLDT. As a resident of
Lacson Street, he passed on that street almost every day and

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 TORTS AND DAMAGES

account seventeen checks drawn against the account of occur. That which a person assents is not esteemed in law as
the petitioner at respondent bank. injury.
o Petitioner then requested the respondent bank to credit
Elements:
back and restore to his account the value of the checks
which were wrongfully encashed, but respondent bank I. The plaintiff must know that the risk is present;
refused. II. He must further understand its nature;
o Hence, petitioner filed the instant case. III. His choice to incur it is free and voluntary.
o Manila Bank sought the expertise of the NBI in
Exceptions: The plaintiff is free from liability if:
determining the genuineness of the signatures appearing
on the checks. However, petitioner failed to submit his I. If an emergency is found to exist
specimen signatures for purposes of comparison with II. If the life or property of another is in peril or when he
those on the questioned checks. seeks to rescue his endangered property.
o Consequently, the trial court dismissed the case.
o On appeal, the Court of Appeals held that petitioner's Kinds:
own negligence was the proximate cause of his loss.
I. Express waiver of the right to recover

Hence, this petition. There is assumption of risk if the plaintiff, in advance, has
expressly waived his right to recover damages for the
Issue: WON Manila Bank is liable for damages for its negligence
negligent act of the defendant. He has given his express
in failing to detect the discrepant checks?
consent to relieve the defendant of an obligation of conduct
toward him, and to take his chances of injury from a known
Held: No
risk arising from what the defendant is to do or leave
Ratio: To be entitled to damages, petitioner has the burden of undone.
proving negligence on the part of the bank for failure to detect
the discrepancy in the signatures on the checks. It is incumbent Effect of a waiver to recover before/after negligent act:
upon petitioner to establish the fact of forgery, i.e., by
A. Before – Invalid as it is prohibited.
submitting his specimen signatures and comparing them with
those on the questioned checks. Curiously though, petitioner B. After – Valid; Condonation of obligation.
failed to submit additional specimen signatures as requested by
the NBI from which to draw a conclusive finding regarding II. Implied Assumption.
forgery.
Further, the bank's employees in the present case did not have G.R. No. 154259 February 28, 2005
a hint as to the secretary’s modus operandi because she was a
regular customer of the bank, having been designated by NIKKO HOTEL MANILA GARDEN and RUBY LIM, petitioners,
petitioner himself to transact in his behalf. vs.
It was petitioner, not the bank, who was negligent. In the ROBERTO REYES, a.k.a. "AMAY BISAYA," respondent.
present case, it appears that petitioner accorded his secretary
unusual degree of trust and unrestricted access to his credit
cards, passbooks, check books, bank statements, including CHICO-NAZARIO, J.:
custody and possession of cancelled checks and reconciliation
of accounts. Petitioner's failure to examine his bank statements The cause of action before the trial court was one for
appears as the proximate cause of his own damage. damages brought under the human relations provisions of the
True, it is a rule that when a signature is forged or made without New Civil Code.
the authority of the person whose signature it purports to be,
the check is wholly inoperative. However, the rule does provide
Facts:
for an exception, namely: "unless the party against whom it is
sought to enforce such right is precluded from setting up the
forgery or want of authority." In the instant case, it is the o Plaintiff Roberto Reyes, more popularly known by the
exception that applies. Petitioner is precluded from setting up screen name "Amay Bisaya," alleged that while he was
the forgery, assuming there is forgery, due to his own having coffee at the lobby of Hotel Nikko, he was
negligence in entrusting to his secretary his credit cards and spotted by his friend, Dr. Violeta Filart, who then
checkbook including the verification of his statements of approached him.
account. o Mrs. Filart invited him to join her in a party at the hotel’s
penthouse in celebration of the natal day of the hotel’s
manager, Mr. Masakazu Tsuruoka.
3. Assumption of risks o Mr. Reyes then went up with the party of Dr. Filart
carrying the basket of fruits which was the latter’s
The doctrine of assumption of risk is consistent with the Latin present for the celebrant.
maxim volenti non fit injuria. o After a couple of hours, when the buffet dinner was
ready, Mr. Reyes lined-up at the buffet table but, to his
Volenti non fit injuria - One is not legally injured if he has great shock, shame and embarrassment, he was stopped
consented to the act complained of or was willing that it should

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 TORTS AND DAMAGES

by petitioner herein, Ruby Lim, who claimed to speak for

Hotel Nikko as Executive Secretary thereof.
Trial Court: Gave more credence to the testimony of Ms.
o In a loud voice and within the presence and hearing of
Lim that she was discreet in asking Mr. Reyes to leave
the other guests who were making a queue at the buffet
the party. The trial court likewise ratiocinated that Mr.
table, Ruby Lim told him to leave the party ("huwag ka
Reyes assumed the risk of being thrown out of the party
nang kumain, hindi ka imbitado, bumaba ka na lang").
as he was uninvited.
o Mr. Reyes tried to explain that he was invited by Dr.
Filart.13 Dr. Filart, who was within hearing distance,
however, completely ignored him thus adding to his He assumed the risk of being asked to leave for
shame and humiliation. attending a party to which he was not invited by the
o Like a common criminal, he was escorted out of the host. He knew that it was not the party of defendant
party by the policeman. Violeta Filart even if she allowed him to join her and
took responsibility for his attendance at the party. His
action against defendants Nikko Hotel and Ruby Lim
Respondent Dr. Filart Amay Bisaya must therefore fail.
(Ruby Lim)
Ruby Lim, for She never Claiming
her part, invited Mr. damages, CA: Reversed the ruling of the trial court as it found
admitted Reyes to the Mr. Reyes more commanding of belief the testimony of Mr. Reyes
having asked party. asked for that Ms. Lim ordered him to leave in a loud voice within
Mr. Reyes to According to One Million hearing distance of several guests. The acts of [appellee]
leave the party her, it was Pesos Lim are causes of action which are predicated upon
but not under Mr. Reyes actual mere rudeness or lack of consideration of one person,
the who damages, which calls not only protection of human dignity but
ignominious volunteered One Million respect of such dignity. Under Article 20 of the Civil
circumstance to carry the Pesos moral Code, every person who violates this duty becomes
painted by the basket of and/or liable for damages, especially if said acts were attended
latter. fruits exemplary by malice or bad faith.
intended for damages
the celebrant and Two Issue (Main): WON the doctrine of VOLENTI NON FIT
She then
as he was Hundred INJURIA applies in the case at bar considering Amay
turned around
likewise going Thousand Bisaya was a gate-crasher
trusting that
to take the Pesos
Mr. Reyes
elevator, not attorney’s
would show Held: No
to the fees.
enough
penthouse
decency to
but to Ratio: The doctrine of volenti non fit injuria refers to self-
leave, but to
Altitude 49. inflicted injury48 or to the consent to injury which
her surprise,
When they precludes the recovery of damages by one who has
he began
reached the knowingly and voluntarily exposed himself to danger,
screaming and
penthouse, even if he is not negligent in doing so. As formulated by
making a big
she reminded petitioners, however, this doctrine does not find
scene, and
Mr. Reyes to application to the case at bar because even if
even
go down as respondent Reyes assumed the risk of being asked to
threatened to
he was not leave the party, petitioners, under Articles 19 and 21 of
dump food on
properly the New Civil Code, were still under obligation to treat
her.
dressed and him fairly in order not to expose him to unnecessary
was not ridicule and shame.
Doctrine of invited.
volenti non fit
injuria, they Issue (Sub 1): WON Ruby Lim acted abusively in asking
cannot be Amay Bisaya,to leave the party where he was not invited
made liable for by the celebrant thereof thereby becoming liable under
damages as Articles 19 and 21 of the Civil Code.
respondent
Reyes Held: No
assumed the
risk of being
Ratio: In the absence of any proof of motive on the part of
asked to leave
Ms. Lim to humiliate Mr. Reyes and expose him to ridicule and
(and being
shame, it is highly unlikely that she would shout at him from a
embarrassed
very close distance.
and humiliated
in the process)
as he was a Considering the closeness of defendant Lim to plaintiff when
"gate-crasher." the request for the latter to leave the party was made such
that they nearly kissed each other, the request was meant to

JD-2 AUF-SOL MIDTERMS 70

 TORTS AND DAMAGES

be heard by him only and there could have been no intention o From the evening of June 28 until the arly morning of
on her part to cause embarrassment to him. It was plaintiff’s June 29, 1967 a strong typhoon named "Gening" struck
reaction to the request that must have made the other guests the province of Ilocos Norte which resulted in flooding.
aware of what transpired between them o The deceased Isabel Lao Juan a.k.a. NANA BELEN was an
owner and proprietress of the Five Sisters Emporium.
o Between 5:30 and 6:00 A.M. on June 29, 1967, after the
Had plaintiff simply left the party as requested, there was no
typhoon had abated and when the floodwaters were
need for the police to take him out.
beginning to recede, the deceased went out of the house
of her son-in-law, Antonio Yabes, on No. 19 Guerrero
Ms. Lim, not having abused her right to ask Mr. Reyes to leave Street, Laoag City, and proceeded northward towards the
the party to which he was not invited, cannot be made liable direction of the Five Sisters Emporium TO LOOK AFTER
to pay for damages under Articles 19 and 21 of the Civil Code. THE MERCHANDISE THEREIN THAT MIGHT HAVE BEEN
DAMAGED. Wading in waist-deep flood on Guerrero, the
Issue (Sub 2): WON Hotel Nikko, as her employer, is solidarily deceased was followed by Aida Bulong, a Salesgirl at the
liable with her. Five Sisters Grocery, also owned by the deceased, and by
Linda Alonzo Estavillo, a ticket seller at the YJ Cinema,
which was partly owned by the deceased. Aida and Linda
Held: No walked side by side at a distance of between 5 and 6
meters behind the deceased.
Ratio: Kasi hindi liable si Ruby Lim kaya hindi din liable o Suddenly, the deceased screamed "Ay" and quickly sank
employer niya. into the water. The two girls attempted to help, but fear
dissuaded them from doing so because on the spot where
the deceased sank they saw an electric wire dangling from
All told, and as far as Ms. Lim and Hotel Nikko are concerned, a post and moving in snake-like fashion in the water.
any damage which Mr. Reyes might have suffered through Upon their shouts for help, Ernesto dela Cruz came out of
Ms. Lim’s exercise of a legitimate right done within the the house of Antonio Yabes. Ernesto tried to go to the
bounds of propriety and good faith, must be his to bear alone. deceased, but at four meters away from her HE TURNED
BACK SHOUTING THAT THE WATER WAS GROUNDED.
[Article 19] Principle of abuse of rights. o Different sorts of help were exhausted and it was only
when the electric current had been cut off when the
body of the deceased was recovered about two (2)
Standards:
meters from the electric post.
o An action for damages was instituted by the heirs of the
1. act with justice deceased in the Cout of First Instance of Ilocos Norte (now
2. give everyone his due RTC). However, the Ilocos Norte Electric Company
3. observe honesty and good faith (INELCO) argued that it is not liable for the damages
resulting from the death of the deceased since it
Elements: exercisedthe required degree of diligence as an electric
company. It further assailed the subsequent ruling of the
Court of Appeals that it did not apply the legal principle of
1. There is a legal right or duty “ASSUMPTION OF RISK” in the said situation.
2. Exercised in bad faith;
3. Sole intent of prejudicing or injuring another. Issue: WON INELCO is not liable for damages based on the legal
principle of “ASSUMPTION OF RISK”
[Article 20] Damages arising from a violation of law.
Held: No, the Court ruled that the legal principle
“ASSUMPTION OF RISK” has no application in the present case.
[Article 21] Acts contra bonus mores
Ratio: The Court in deciding this case noted the surrounding
Elements: circumstances which impelled/caused the deceased NANA
BELEN to leave the comforts her home and brave the subsiding
typhoon. She was on her way "to see to it that the goods were
1. There is an act which is legal
not flooded."
2. Contrary to morals, good custom, public order, or public
policy
INELCO was found to be negligent in not observing
3. It is done with intent to injure.
the EXTRAORDINARY DILIGENCE required of it as it venture in
electricity. As a supplier of electricity it was warned days
before that a typhoon was coming, and yet it was only upon the
request of Engr Antonio Juan when the electric current was cut
The Ilocos Norte Electric Company(INELCO) vs CA off. Moreover, it was found out that there where no electrical
GR No L-53401 Novemer 06, 1989 SECOND DIVISION personnel deployed during the typhoon who could have fixed
PARAS J.: the fallen electrical lines.

Facts: THE DOCTRINE OF ASSUMPTION OF RISK has three

requirements;

JD-2 AUF-SOL MIDTERMS 71

 TORTS AND DAMAGES

#1. The plaintiff must know that the risk is present;

#2. He must further understand its nature;
#3. His choice to incur it is free and voluntary.
Courts Ruling:
Applying the above requirements, it has been held
that in relation to the last requisite, there are certain • Breach of Contract:
EXCEPTIONS #1. If EMERGENCY is found to exist or #2. If the • premised upon the negligence in the performance of a
LIFE or PROPERTY of another is in peril OR #3 when he seek to contractual obligation
rescue his endangered property. • the action can be prosecuted merely by proving
• The existence of the contract
The Court said that it is crystal clear that ”an • That the obligor (common carrier) failed to transport
emergency was at hand as the deceased's property, a source his passenger safely to his destination
of her livelihood, was faced with an impending loss.
Furthermore, the deceased, at the time the fatal incident • Quasi Delict:
occurred, was at a place where she had a right to be without • has its source the negligence of the tortfeasor
regard to petitioner's consent as she was on her way to • the negligence or fault should be clearly established
protect her merchandise. because it is the basis of the action

• The action instituted by Sunga was based on Breach of

Calalas vs. C.A Contract of carriage hence, Sunga needs only to prove the
G.R No. 122039 May 31, 2000 existence of the two elements provided above.
Mendoza, • Furthermore, Art. 1756 provides that, in case of death or
injuries to passengers, common carriers are presumed to
Background of the Case: have been at fault or to have acted negligently unless they
prove that they observed extraordinary diligence.
This is a petition for review of the decision of the CA reversing • The burden of proof then shifts to the common carrier.
the decision of RTC (holding Salva liable and absolved Calalas) • Thus the contention of Calalas that the proximate cause of
instead awarded damages to Sunga herein private respondent the accident was Salva is immaterial, since its only applicable
against Calalas. in actions based on quasi-delict

Facts: Art. 1733. Common carriers, from the nature of their business
and for reasons of public policy, are bound to observe
o Sunga a student major in Physical Education took a extraordinary diligence in the vigilance over the goods and for
passenger jeep owned and operated by Calalas. The the safety of the passengers transported by them, according to
capacity of the jeep was 24, however Sunga was still all the circumstances of each case.
accommodated to ride the jeep and was provided a stool
and placed her the rear part of the vehicle. While the jeep
unloads some of its passenger, the jeep was hit by an Art. 1756. In case of death of or injuries to passengers, common
Isuzu Truck driven Verena and owned by Salva, as a result carriers are presumed to have been at fault or to have acted
Sunga was injured. Sunga obtained fracture and was negligently, unless they prove that they observed extraordinary
confined in the hospital. Sunga stopped her studies diligence as prescribed by articles 1733 and 1755.
because of the injuries. Sunga then filed a complaint
against Calala for breach of contract of carriage against
Calalas. Calalas then filed a third party complaint against
Salva the driver of the Isuzu Truck. RTC absolved Calalas • Given the above provision, in the case at bar, the
presumption of negligence arose upon the happening of the
and Salva liable to Calalas. CA reversed RTC’s decision and
accident.
awarded damages to Sunga including moral damages.
Hence this petition. • To negate Calalas liability, Calalas has to prove that he
exercised utmost diligence of a very cautious persons in
Issue: WON Calalas is liable based on Breach of Contract of performing his obligation
Carriage.
• The court held that he failed to do so:
WON the taking of Extension Seat by Sunga amounted to
Assumption of Risk • First: The Jeepney was not properly parked, its rear
portion being exposed about two meters from the broad
Held: 1. YES. 2. NO. shoulders of the highway. A violation of R.A 4136, which
prohibits vehicles to obstruct or impede the passage of
Petitioners Contention: any vehicle

• Second: The driver of the jeep took more passenger than

• The negligence of Verena was the proximate cause of the its capacity. Which is also prohibited in the same law.
accident hence his liability is negated.
• That the taking of Sunga of the Extension Seat amounted to • Assumption of Risk:
an implied assumption of risk
• We find it hard to give serious thought to
• The award of moral is not supported by evidence. petitioner's contention that Sunga's taking an

JD-2 AUF-SOL MIDTERMS 72

 TORTS AND DAMAGES

"extension seat" amounted to an implied o The negligence of the plaintiff does not preclude a recovery
assumption of risk. It is akin to arguing that the for the negligence of the defendant where it appears that
injuries to the many victims of the tragedies in the defendant, by exercising reasonable care and prudence,
our seas should not be compensated merely might have avoided injurious consequences to the plaintiff
because those passengers assumed a greater risk notwithstanding the plaintiffs negligence.
of drowning by boarding an overloaded ferry.
o In other words, the doctrine of last clear chance means that
• This is also true of petitioner's contention that the
jeepney being bumped while it was improperly even though a person’s own acts may have placed him in a
parked constitutes caso fortuito. position of peril, and an injury results, the injured person
is entitled to recovery.
• A caso fortuito is an event which could not be
foreseen, or which, though foreseen, was Elements:
inevitable.
1. Plaintiff was in a position of danger and by his own
• This requires that the following negligence was unable to escape from such position by
requirements be present: (a) the cause of the use of ordinary care.
the breach is independent of the debtor's
2. Defendant has the last clear chance to avoid the
will; (b) the event is unforeseeable or
accident by the exercise of ordinary care but failed to
unavoidable; (c) the event is such as to
render it impossible for the debtor to fulfill exercise such last clear chance.
his obligation in a normal manner, and (d) 3. Defendant knew that the plaintiff was in a position of
the debtor did not take part in causing the danger.
injury to the 4. The accident occurred as a proximate result of such
creditor. failure.

• Petitioner should have foreseen the danger Cases when doctrine applied:
of parking his jeepney with its body
protruding two meters into the highway. o Examination of the cases where the Supreme Court applied
the doctrine of last clear chance reveals that the doctrine is
being applied for the purpose of determining the proximate
As to Moral Damages: cause of the accident.
As a general rule, moral damages are not recoverable in actions
for damages predicated on a breach of contract for it is not one Cases when the doctrine was held inapplicable:
of the items enumerated under Art. 2219 of the Civil Code.
o It does not apply if the plaintiff was not negligent, that is,
Exception: only the defendant was negligent.
As an exception, such damages are recoverable: (1) in cases in o It cannot also apply where the party charged (defendant) is
which the mishap results in the death of a passenger, as required to act instantaneously, and if the injury cannot be
provided in Art. 1764, in relation to Art. 2206(3) of the Civil avoided by the application of all means at hand after the
Code; and (2) in the cases in which the carrier is guilty of fraud peril is or should have been discovered; at least in cases in
or bad faith, as provided in Art. 2220. which any previous negligence of the party charged cannot
be said to have contributed to the injury.
In this case, there is no legal basis for awarding moral damages
since there was no factual finding by the appellate court that o It cannot be applied in the field of joint tortfeasors and it
petitioner acted in bad faith in the performance of the contract cannot be invoked as between defendants who are
of carriage. concurrently negligent.
o It does not arise where the plaintiff, a passenger, filed
an action against a carrier based on contract.
Reason: o It is not applicable if the actor, though negligent, was not
Sunga's contention that petitioner's admission in open court aware of the danger or risk brought about by a prior fraud or
that the driver of the jeepney failed to assist her in going to a negligent act.
nearby hospital cannot be construed as an admission of bad
faith. The fact that it was the driver of the Isuzu truck who took Philippine Bank of Commerce v. Court of Appeals
her to the hospital does not imply that petitioner was utterly GR No. 97626, March 14, 1997
indifferent to the plight of his injured passenger. Hermosisima, J.

Facts:
o A complaint filed by the private respondent Rommel's
4. Last clear chance Marketing Corporation (RMC for brevity), represented
by its President and General Manager Romeo Lipana, to
The doctrine of the last clear chance – A person who has the last recover from the former Philippine Bank of Commerce
fair chance to avoid the impending harm and fails to do so is (PBC for brevity), now absorbed by the Philippine
chargeable with the consequences, without reference to the prior Commercial International Bank, the sum of P304,979.74
negligence of the other party. representing various deposits it had made in its current
account with said bank but which were not credited to

JD-2 AUF-SOL MIDTERMS 73

 TORTS AND DAMAGES

its account, and were instead deposited to the account respond; and (c) the connection of cause and effect between
of one Bienvenido Cotas, allegedly due to the gross and the fault or negligence of the defendant and the damages
inexcusable negligence of the petitioner bank. RMC incurred by the plaintiff
maintained two (2) separate current accounts, Current
Account Nos. 53-01980-3 and 53-01748-7. From May 5, It appears that the bank's teller, Ms. Azucena
1975 to July 16, 1976, petitioner Romeo Lipana claims to Mabayad, was negligent in validating, officially stamping and
have entrusted RMC funds in the form of cash totalling signing all the deposit slips prepared and presented by Ms.
P304,979.74 to his secretary, Irene Yabut, for the Yabut, despite the glaring fact that the duplicate copy was not
purpose of depositing said funds in the current accounts completely accomplished contrary to the self-imposed
of RMC with PBC. It turned out, however, that these procedure of the bank with respect to the proper validation of
deposits, on all occasions, were not credited to RMC's deposit slips, original or duplicate. Negligence here lies not
account but were instead deposited to Account No. 53- only on the part of Ms. Mabayad but also on the part of the
01734-7 of Yabut's husband, Bienvenido Cotas who bank itself in its lackadaisical selection and supervision of Ms.
likewise maintains an account with the same bank. Mabayad. It was this negligence of Ms. Azucena Mabayad,
o Irene Yabut's modus operandi is far from complicated. coupled by the negligence of the petitioner bank in the
She would accomplish two (2) copies of the deposit slip, selection and supervision of its bank teller, which was the
an original and a duplicate. The original showed the proximate cause of the loss suffered by the private
name of her husband as depositor and his current respondent.
account number. On the duplicate copy was written the
account number of her husband but the name of the (2) Under the doctrine of "last clear chance", petitioner bank
account holder was left blank. PBC's teller, Azucena was indeed the culpable party. This doctrine, in essence,
Mabayad, would, however, validate and stamp both the states that where both parties are negligent, but the negligent
original and the duplicate of these deposit slips retaining act of one is appreciably later in time than that of the other,
only the original copy despite the lack of information on or when it is impossible to determine whose fault or
the duplicate slip. The second copy was kept by Irene negligence should be attributed to the incident, the one who
Yabut allegedly for record purposes. After validation, had the last clear opportunity to avoid the impending harm
Yabut would then fill up the name of RMC in the space and failed to do so is chargeable with the consequences
left blank in the duplicate copy and change the account thereof.
number written thereon, which is that of her husband's,
and make it appear to be RMC's account number, i.e., Here, assuming that private respondent RMC was
C.A. No. 53-01980-3. She made her company believe negligent in entrusting cash to a dishonest employee, thus
that all the while the amounts she deposited were being providing the latter with the opportunity to defraud the
credited to its account when, in truth and in fact, they company, as advanced by the petitioner, yet it cannot be
were being deposited by her and credited by the denied that the petitioner bank, thru its teller, had the last
petitioner bank in the account of Cotas. clear opportunity to avert the injury incurred by its client,
o RTC decided in favor of respondent RMC simply by faithfully observing their self-imposed validation
procedure.
Issue:
(1) Whether or not the proximate cause of the injury suffered (3) Art. 1173. The fault or negligence of the obligor consists in
by the respondent is the negligence of the petitioners the omission of that diligence which is required by the nature
(2) Discussion about "last clear chance" of the obligation and corresponds with the circumstances of
(3) Discussion about diligence required in banks the persons, of the time and of the place. When negligence
shows bad faith, the provisions of articles 1171 and 2201,
Held: paragraph 2, shall apply.
(1) Yes
If the law or contract does not state the diligence
Ratio: which is to be observed in the performance, that which is
(1) Petitioners submit that the proximate cause of the loss is expected of a good father of a family shall be required.
the negligence of respondent RMC and Romeo Lipana in (1104a)
entrusting cash to a dishonest employee in the person of Ms.
Irene Yabut. According to them, it was impossible for the bank In the case of banks, however, the degree of
to know that the money deposited by Ms. Irene Yabut belong diligence required is more than that of a good father of a
to RMC; neither was the bank forewarned by RMC that Yabut family. Considering the fiduciary nature of their relationship
will be depositing cash to its account. with their depositors, banks are duty bound to treat the
accounts of their clients with the highest degree of care. The
Private respondent, on the other hand, maintains point is that as a business affected with public interest and
that the proximate cause of the loss was the negligent act of because of the nature of its functions, the bank is under
the bank, thru its teller Ms. Azucena Mabayad, in validating obligation to treat the accounts of its depositors with
the deposit slips, both original and duplicate notwithstanding meticulous care, always having in mind the fiduciary nature of
the fact that one of the deposit slips was not completely their relationship.
accomplished.

There are three elements of a quasi-delict: (a) [G.R. No. 138060. September 1, 2004]
damages suffered by the plaintiff; (b) fault or negligence of WILLIAM TIU, doing business under the name and style of D
the defendant, or some other person for whose acts he must Rough Riders, and VIRGILIO TE LAS

JD-2 AUF-SOL MIDTERMS 74

 TORTS AND DAMAGES

PIAS petitioners, vs. PEDRO A. ARRIESGADO, BENJAMIN The trial court ruled that if Laspias had not been driving
CONDOR, SERGIO PEDRANO and PHILIPPINE at a fast pace, he could have easily swerved to the left to
PHOENIX SURETY AND INSURANCE, INC., respondents. avoid hitting the truck, thus, averting the unfortunate
incident. It then concluded that petitioner Laspias was
CALLEJO, SR., J.: negligent.
o The trial court also ruled that the absence of an early
Facts: warning device near the place where the truck was
parked was not sufficient to impute negligence on the
o At about 10:00 p.m., the cargo truck marked Condor part of Pedrano, since the tail lights of the truck were fully
Hollow Blocks and General Merchandise loaded with on, and the vicinity was well lighted by street lamps. It
firewood. Upon reaching Sitio Aggies, Poblacion, also found that the testimony of petitioner Tiu, that he
Compostela, Cebu, just as the truck passed over a bridge, based the selection of his driver Laspias on efficiency and
one of its rear tires exploded. The driver, Sergio Pedrano, in-service training, and that the latter had been so far an
then parked along the right side of the national highway efficient and good driver for the past six years of his
and removed the damaged tire to have it employment, was insufficient to prove that he observed
vulcanized. Pedrano left his helper, Jose Mitante, Jr. to the diligence of a good father of a family in the selection
keep watch over the stalled vehicle, and instructed the and supervision of his employees.
latter to place a spare tire six fathoms away behind the o After the petitioners motion for reconsideration of the
stalled truck to serve as a warning for oncoming vehicles. said decision was denied, the petitioners elevated the
The trucks tail lights were also left on. It was about 12:00 case to the Court of Appeals. The appellate court
a.m. rendered judgment affirming the trial courts decision.
o At about 4:45 a.m., D Rough Riders passenger bus driven o According to the appellate court, the action of
by Virgilio Te Laspias was cruising along the national respondent Arriesgado was based not on quasi-delict but
highway of Sitio Aggies. Among its passengers were the on breach of contract of carriage. As a common carrier, it
Spouses Arriesgado, who were seated at the right side of was incumbent upon petitioner Tiu to prove that
the bus, about 3 or 4 places from the front seat. extraordinary diligence was observed in ensuring the
o As the bus was approaching the bridge, Laspias saw the safety of passengers during transportation. Since the
stalled truck, which was then about 25 meters away. He latter failed to do so, he should be held liable for
applied the breaks and tried to swerve to the left to avoid respondent Arriesgados claim.The CA also ruled that no
hitting the truck. But it was too late; the bus rammed into evidence was presented against the respondent PPSII,
the trucks left rear. The impact damaged the right side of and as such, it could not be held liable for respondent
the bus and left several passengers injured. Pedro Arriesgados claim.
Arriesgado lost consciousness and suffered a fracture in
his right colles. His wife, Felisa, was brought to Issue:
the hospital and she died shortly thereafter. (under the syllabus): WON the doctrine of last clear chance is
o Respondent Pedro A. Arriesgado then filed a complaint applicable
for breach of contract of carriage against D rough riders (other issues in connection of other topics in torts): 1. WON
operator Tiu and his driver Te Laspias. Laspias as the driver of the bus is negligent
o The petitioners, filed a Third-Party Complaint against the 2. WON Tiu as the operator of the bus is negligent
following: respondent Philippine Phoenix Surety and 3. WON the driver of the truck and the owner were also
Insurance, Inc. (PPSII), petitioner Tius insurer; respondent negligent
Benjamin Condor, the registered owner of the cargo 4. WON PPSII as the insurer of Tiu is also liable
truck; and respondent Sergio Pedrano, the driver of the
truck. They alleged that petitioner Laspias was Ratio:
negotiating the uphill climb along the national highway
of Sitio Aggies, Poblacion, Compostela, in a moderate and The Doctrine of
normal speed. It was further alleged that the truck was Last Clear Chance
parked in a slanted manner, its rear portion almost in the Is Inapplicable in the
middle of the highway, and that no early warning device Case at Bar
was displayed. Petitioner Laspias promptly applied the
brakes and swerved to the left to avoid hitting the truck NOT APPLICABLE. Contrary to the petitioners
head-on, but despite his efforts to avoid damage to contention, the principle of last clear chance is inapplicable in
property and physical injuries on the passengers, the right the instant case, as it only applies in a suit between the owners
side portion of the bus hit the cargo trucks left rear. and drivers of two colliding vehicles. It does not arise where a
o The respondent PPSII, for its part, admitted that it had an passenger demands responsibility from the carrier to enforce its
existing contract with petitioner Tiu, but averred that it contractual obligations, for it would be inequitable to exempt
had already attended to and settled the claims of those the negligent driver and its owner on the ground that the other
who were injured during the incident. It could not accede driver was likewise guilty of negligence. The common law
to the claim of respondent Arriesgado, as such claim was notion of last clear chance permitted courts to grant recovery
way beyond the scheduled indemnity as contained in the to a plaintiff who has also been negligent provided that the
contract of insurance. defendant had the last clear chance to avoid the casualty and
o After the parties presented their respective evidence, the failed to do so. Accordingly, it is difficult to see what role, if any,
trial court ruled in favor of respondent Arriesgado. the common law of last clear chance doctrine has to play in a
o According to the trial court, there was no dispute that jurisdiction where the common law concept of contributory
William Tiu was engaged in business as a common carrier. negligence as an absolute bar to recovery by the plaintiff, has

JD-2 AUF-SOL MIDTERMS 75

 TORTS AND DAMAGES

itself been rejected, as it has been in Article 2179 of the Civil Negligent
Code.
YES. In this case, both the trial and the appellate courts
Thus, petitioner Tiu cannot escape liability for the death
failed to consider that respondent Pedrano was also negligent
of respondent Arriesgados wife due to the negligence of
in leaving the truck parked askew without any warning lights or
petitioner Laspias, his employee, on this score.
reflector devices to alert oncoming vehicles, and that such
failure created the presumption of negligence on the part of his
employer, respondent Condor, in supervising his employees
Petitioner Laspias properly and adequately.
Was negligent in driving
The Ill-fated bus The petitioners were correct in invoking respondent
Pedranos failure to observe Article IV, Section 34(g) of the Rep.
Act No. 4136, which provides:
YES. Since he saw the stalled truck at a distance of 25
meters, petitioner Laspias had more than enough time to
swerve to his left to avoid hitting it; that is, if the speed of the (g) Lights when parked or disabled. Appropriate parking lights
bus was only 40 to 50 kilometers per hour as he claimed. or flares visible one hundred meters away shall be displayed at
Although the maximum speed allowed by law on a bridge is a corner of the vehicle whenever such vehicle is parked on
only 30 kilometers per hour violating Section 35 of the Land highways or in places that are not well-lighted or is placed in
Transportation and Traffic Code, Republic Act No. 4136 or such manner as to endanger passing traffic.
Restriction as to speed xxxxxxxxx and no person shall drive any
motor vehicle upon a highway at such speed as to endanger the The Liability of
life, limb and property of any person, nor at a speed greater Respondent PPSII
than will permit him to bring the vehicle to a stop within the as Insurer
assured clear distance ahead.

Under Article 2185 of the Civil Code, a person driving a YES. The insurer could be held liable only up to the
vehicle is presumed negligent if at the time of the mishap, he extent of what was provided for by the contract of insurance,
was violating any traffic regulation. in accordance with the CMVLI law. At the time of the incident,
the schedule of indemnities for death and bodily injuries,
As shown by preponderance of evidence that defendant professional fees and other charges payable under a CMVLI
Virgilio Te Laspias failed to observe extraordinary diligence as a coverage.
driver of the common carrier in this case.
A perusal of the records will show that when the
petitioners filed the Third-Party Complaint against respondent
PPSII, they failed to attach a copy of the terms of the insurance
Petitioner Tiu failed to contract itself. Only Certificate of Cover No. 054940 issued in
Overcome the presumption favor of Mr. William Tiu, Lahug, Cebu City signed by Cosme H.
Of negligence against him as Boniel was appended to the third-party complaint.
One engaged in the business
Of common carriage In fact, respondent PPSII did not dispute the existence of
such contract, and admitted that it was liable thereon. It
YES. Arriesgado and his deceased wife contracted with claimed, however, that it had attended to and settled the
petitioner Tiu, as owner and operator of D Rough Riders bus claims of those injured during the incident, and set up the
service, for transportation from Maya, Daanbantayan, Cebu, to following as special affirmative defenses:
Cebu City for the price of P18.00. It is undisputed that the
respondent and his wife were not safely transported to the Considering the admissions made by respondent PPSII,
destination agreed upon. In actions for breach of contract, and the existence of the insurance contract and the salient terms
the fact that the obligor, in this case the common carrier, failed thereof cannot be dispatched. It must be noted that after filing
to transport his passenger safely to his destination are the its answer, respondent PPSII no longer objected to the
matters that need to be proved. This is because under the said presentation of evidence by respondent Arriesgado and the
contract of carriage, the petitioners assumed the express insured petitioner Tiu. Even in its Memorandum56 before the
obligation to transport the respondent and his wife to their Court, respondent PPSII admitted the existence of the contract,
destination safely and to observe extraordinary diligence with but averred as follows:
due regard for all circumstances. As can be gleaned from the Certificate of Cover, such
As correctly found by the trial court, petitioner Tiu failed insurance contract was issued pursuant to the Compulsory
to conclusively rebut such presumption. The negligence of Motor Vehicle Liability Insurance Law. It was expressly provided
petitioner Laspias as driver of the passenger bus is, thus, therein that the limit of the insurers liability for each person
binding against petitioner Tiu, as the owner of the passenger was P12,000, while the limit per accident was pegged
bus engaged as a common carrier. at P50,000.

Respondents Pedrano and IN LIGHT OF ALL THE FOREGOING, the petition is

Condor were likewise PARTIALLY GRANTED. The Decision of the Court of Appeals is
AFFIRMED with MODIFICATIONS:

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 TORTS AND DAMAGES

(1) Respondent Philippine Phoenix Surety and Insurance, train. When the train was only fifty (50) meters away from the
Inc. and petitioner William Tiu are ORDERED to pay, jointly and intersection, respondent Estranas noticed that all vehicles on
severally, respondent Pedro A. Arriesgado the total amount both sides of the track were already at a full stop.Thus, he
ofP13,113.80; carefully proceeded at a speed of twenty-five (25) kilometers
per hour, still blowing the trains horn. However, when the train
(2) The petitioners and the respondents Benjamin was already ten (10) meters away from the intersection, the
Condor and Sergio Pedrano are ORDERED to pay, jointly and passenger jeepney being driven by Reynaldo suddenly crossed
severally, respondent Pedro A. Arriesgado P50,000.00 as the tracks. Estranas immediately stepped on the brakes to
indemnity; P26,441.50 as actual damages; P50,000.00 as moral avoid hitting the jeepney but due to the sheer weight of the
damages; P50,000.00 as exemplary damages; and P20,000.00 train, it did not instantly come to a complete stop until the
as attorneys fees. jeepney was dragged 20 to 30 meters away from the point of
collision.
SO ORDERED.
Also, the petitioners maintain that the proximate cause of the
collision was the negligence and recklessness of the driver of
the jeepney. They argue that as a professional driver, Reynaldo
PHILIPPINE NATIONAL RAILWAYS CORPORATION V VIZCARA
is presumed to be familiar with traffic rules and regulations,
GR NO. 190022, February 15, 2012
including the right of way accorded to trains at railroad crossing
Reyes, J:
and the precautionary measures to observe in traversing the
same. However, in utter disregard of the right of way enjoyed
BACKGROUND: CA affirmed the RTCs finding of negligence on
by PNR trains, he failed to bring his jeepney to a full stop before
the part of the petitioners. It concurred with the trial court's
crossing the railroad track and thoughtlessly followed the ten-
conclusion that petitioner PNR's failure to install sufficient
wheeler truck ahead of them. His failure to maintain a safe
safety devices in the area, such as flagbars or safety railroad
distance between the jeepney he was driving and the truck
bars and signage, was the proximate cause of the accident.
ahead of the same prevented him from seeing the PNR signage
displayed along the crossing
Facts:
Issue: W/N the Doctrine of Last Clear Chance is applicable in
o On May 14, 2004, at about three oclock in the morning,
the present case.
Reynaldo Vizcara (Reynaldo) was driving a passenger
jeepney headed towards Bicol to deliver onion crops, with
Held: No. The Doctrine of last Clear Chance is not applicable.
his five companions. While crossing the railroad track in
Tiaong, Quezon, a Philippine National Railways (PNR)
Ratio:
train, then being operated by respondent Japhet Estranas
(Estranas), suddenly turned up and rammed the
o The doctrine of last clear chance provides that 1)
passenger jeepney. The collision resulted to the
where both parties are negligent but the negligent
instantaneous death of Reynaldo, and three of his
act of one is appreciably later in point of time than
companions. On the other hand, two sustained serious
that of the other, or 2) where it is impossible to
physical injuries.
determine whose fault or negligence brought about
o At the time of the accident, there was no level crossing
the occurrence of the incident, the one who had the
installed at the railroad crossing. Additionally, the Stop,
last clear opportunity to avoid the impending harm
Look and Listen signage was poorly maintained. The Stop
but failed to do so, is chargeable with the
signage was already faded while the Listen signage was
consequences arising therefrom.
partly blocked by another signboard.
o On September 15, 2004, the two survivors of the mishap,
Stated differently, the rule is that the antecedent
together with the heirs of the deceased victims, filed an
negligence of a person does not preclude recovery
action for damages against PNR, Estranas and Ben Saga,
of damages caused by the supervening negligence
the alternate driver of the train, before the RTC of Palayan
of the latter, who had the last fair chance to prevent
City.
the impending harm by the exercise of due
diligence.
RESPONDENTS’ ARGUMENT: The respondents alleged that the
proximate cause of the fatalities and serious physical injuries
To reiterate the CA and the RTC’s ruling, the
sustained by the victims of the accident was the petitioner’s
proximate cause of the collision was the petitioner’s
gross negligence in not providing adequate safety measures to
negligence in ensuring that motorists and
prevent injury to persons and properties. They pointed out that
pedestrians alike may safely cross the railroad track.
in the railroad track of Tiaong, Quezon where the accident
The unsuspecting driver and passengers of the
happened, there was no level crossing bar, lighting equipment
jeepney did not have any participation in the
or bell installed to warn motorists of the existence of the track
occurrence of the unfortunate incident which befell
and of the approaching train.
them. Likewise, they did not exhibit any overt act
manifesting disregard for their own safety. Thus,
PETITIONER’S ARGUMENT: The petitioners claimed that they
absent preceding negligence on the part of the
exercised due diligence in operating the train and monitoring
respondents, the doctrine of last clear chance
its roadworthiness. They asseverate that right before the
cannot be applied.
collision, Estranas was driving the train at a moderate speed.
Four hundred (400) meters away from the railroad crossing, he
HIGHLIGHTS OF THE CASE:
started blowing his horn to warn motorists of the approaching

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 TORTS AND DAMAGES

Exception: If the caso fortuito is not the sole cause of the injury
o Petitioner’s (PNRC) negligence was the proximate and the courts may mitigate the damage if the loss would have
cause of the accident based on Art. 2176. resulted in any event. [Article. 2215]
Negligence was defined as the omission to do
something which a reasonable man, guided by Essential characteristics:
considerations which ordinarily regulate the
conduct of human affairs, would do, or the doing of 1. The cause of the unforeseen and unexpected
something which a prudent and reasonable man occurrence, or of the failure of the debtor to comply
would not do. It is the failure to observe for the with his obligation, must be independent of the human
protection of the interests of another person, that will;
degree of care, precaution, and vigilance which the 2. It must be impossible to foresee the event which
circumstances justly demand, whereby such other constitutes the ‘caso fortuito,’ or if it can be foreseen,
person suffers injury. The petitioner’s failure to it must be impossible to avoid;
install adequate safety devices at the railroad 3. The occurrence must be such as to render it impossible
crossing which proximately caused the collision.
for the debtor to fulfil his obligation in a normal
o There was no contributory negligence on the part
manner;
of the respondents. Contributory negligence is
conduct on the part of the injured party, 4. The obligor must be free from any participation in the
contributing as a legal cause to the harm he has aggravation of the injury resulting to the creditor.
suffered, which falls below the standard which he is
When an act of God combines or concurs with the negligence of
required to conform for his own protection. It is an
act or omission amounting to want of ordinary care the defendant to produce an injury, the defendant is liable if the
on the part of the person injured which, concurring injury would not have resulted but for his own negligent conduct
with the defendant’s negligence, is the proximate or omission. The whole occurrence is humanized and removed
cause of the injury. The respondents could not have from the rules applicable to acts of God. [National Power
contributed to their injury when they were not even Corporation vs. The Court of Appeals, 222 SCRA 415 [1993]]
aware of the forthcoming danger. It was established
during the trial that the jeepney carrying the N.B. Fire not considered as act of God, except when caused by
respondents was following a ten-wheeler truck lightning.
which was only about three to five meters ahead.
When the truck proceeded to traverse the railroad NAPOCOR vs CA et al
track safely, Reynaldo, the driver of the jeepney, Gr No. 103442-45 May 21, 1993
simply followed through. He did so under the DAVIDE, JR., J.:
impression that it was safe to proceed. It bears
noting that the prevailing circumstances
immediately before the collision did not manifest Facts:
even the slightest indication of an imminent harm. o The plaintiffs therein, now private respondents, sought
o The doctrine of last clear chance is not applicable to recover actual and other damages for the loss of lives
and the destruction to property caused by the
inundation of the town of Norzagaray, Bulacan. The
5. Fortuitous event flooding was purportedly caused by the negligent
release by the defendants of water through the spillways
[Art. 1174]. Except in cases expressly specified by of the Angat Dam (Hydroelectric Plant).
the law, or when it is otherwise declared by o In said complaints, the plaintiffs alleged, inter alia, that:
stipulation, or when the nature of the obligation 1) defendant NPC operated and maintained a multi-
requires the assumption of risk, no person shall be purpose hydroelectric plant in the Angat River at Hilltop,
responsible for those events which could not be Norzagaray, Bulacan; 2) defendant Benjamin Chavez was
foreseen, or which, though foreseen, were the plant supervisor at the time of the incident in
inevitable. question; 3) despite the defendants’ knowledge, of the
impending entry of typhoon "Kading," they failed to
exercise due diligence in monitoring the water level at
the dam; 4) when the said water level went beyond the
Inevitable accident or casualty; an accident produced by any
maximum allowable limit at the height of the typhoon,
physical cause which is irresistible; such as lightning, tempest,
the defendants suddenly, negligently and recklessly
perils of the sea, inundation, or earthquake; the sudden illness or
opened three (3) of the dam’s spillways, thereby
death of a person. releasing a large amount of water which inundated the
banks of the Angat River; and 5) as a consequence,
Acts of God – Events totally independent of the will of man.
members of the household of the plaintiffs, together
with their animals, drowned, and their properties were
Acts of man - Events independent of the will of the obligor but
washed away.
not of other human wills.
o In their Answers, the defendants, now petitioners,
alleged that: 1) the NPC exercised due care, diligence
General rule: It is a complete defence and a person is not liable if
and prudence in the operation and maintenance of the
the cause of the damage was a caso fortuito.
hydroelectric plant; 2) the NPC exercised the diligence of
a good father in the selection of its employees; 3)

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 TORTS AND DAMAGES

written notices were sent to the different municipalities fortuitous event.

of Bulacan warning the residents therein about the
impending release of a large volume of water with the Held: NO. Not due to fortuitous event. Because a human
onset of typhoon "Kading" and advising them to take the factor — negligence or imprudence — had intervened.
necessary precautions; 4) the water released during the NAPOCOR is guilty of NEGLIGENCE. The flash flood, was
typhoon was needed to prevent the collapse of the dam caused not by rain waters, but by stored waters suddenly
and avoid greater damage to people and property; 5) in and simultaneously released from the Angat Dam.
spite of the precautions undertaken and the diligence
exercised, they could still not contain or control the Ratio: CA found as conclusively established that indeed, the
flood that resulted and; 6) the damages incurred by the petitioners were guilty of "patent gross and evident lack of
private respondents were caused by a fortuitous event foresight, imprudence and negligence in the management and
or force majeure and are in the nature and character of operation of Angat Dam," and that "the extent of the opening
damnum absque injuria. By way of a special affirmative of the spillways, and the magnitude of the water released,
defense, the defendants averred that the NPC cannot be are all but products of defendants-appellees’ headlessness,
sued because it performs a purely governmental slovenliness, and carelessness." Its findings and conclusions
function. are binding upon Us.
o The lower court rendered its decision dismissing the
complaints "for lack of sufficient and credible evidence." In any event, We reiterate here Our pronouncement in the
o In its joint decision, the Court of Appeals reversed the case that Juan F. Nakpil & Sons v. Court of Appeals is still good
appealed. law as far as the concurrent liability of an obligor in the case of
o The CA’s conclusion that the petitioners were guilty of: force majeure is concerned. In the Nakpil case, We held:

". . . a patent gross and evident lack of "To exempt the obligor from liability under Article 1174 of the
foresight, imprudence and negligence . . . in Civil Code, for a breach of an obligation due to an ‘act of God,’
the management and operation of Angat the following must concur: (a) the cause of the breach of the
Dam. The resulting flash flood and inundation obligation must be independent of the will of the debtor; (b)
of even areas 1 kilometer away from the the event must be either unforeseeable or unavoidable; (c)
Angat River bank would have been avoided the event must be such as to render it impossible for the
had defendants-appellees prepared the debtor to fulfill his obligation in a normal manner; and (d) the
Angat Dam by maintaining in the first place, a debtor must be free from any participation in, or aggravation
water elevation which would allow room for of the injury to the creditor.
the expected torrential rains."
Thus, if upon the happening of a fortuitous event or an act of
o This conclusion, in turn, is anchored on its findings of God, there concurs a corresponding fraud, negligence, delay
fact, to wit: or violation or contravention in any manner of the tenor of
"Defendants-appellees knew of the the obligation as provided for in Article 1170 of the Civil Code,
impending onslaught of and imminent danger which results in loss or damage, the obligor cannot escape
posed by typhoon ‘Kading.’ Yet, despite such liability.
knowledge, defendants-appellees maintained
a reservoir water elevation even beyond its The principle embodied in the act of God doctrine strictly
maximum and safe level, thereby giving no requires that the act must be one occasioned exclusively by
sufficient allowance for the reservoir to the violence of nature and all human agencies are to be
contain the rain water that will inevitably be excluded from creating or entering into the cause of the
brought by the coming typhoon. mischief. When the effect, the cause of which is to be
considered, is found to be in part the result of the
o The appellate court rejected the petitioners’ defense participation of man, whether it be from active intervention or
that they had sent "early warning written notices" to the neglect, or failure to act, the whole occurrence is thereby
towns of Bulacan. humanized, as it were, and removed from the rules applicable
to the acts of God.
o Said notice is ineffectual, insufficient and inadequate for
purposes of the opening of the spillway gates. It did not Thus it has been held that when the negligence of a person
prepare or warn the persons so served, for the volume concurs with an act of God in producing a loss, such person is
of water to be released, which turned out to be of such not exempt from liability by showing that the immediate
magnitude, that residents near or along the Angat River, cause of the damage was the act of God. To be exempt from
even those one (1) kilometer away, should have been liability for loss because of an act of God, he must be free
advised to evacuate. from any previous negligence or misconduct by which that
loss or damage may have been occasioned.
o CA rejected the petitioners’ plea that the incident in
question was caused by force majeure and that they are, Accordingly, petitioners cannot be heard to invoke the act of
therefore, not liable to the private respondents for any God or force majeure to escape liability for the loss or
kind of damage — such damage being in the nature of damage sustained by the private respondents since they, the
damnum absque injuria. petitioners, were guilty of negligence. The event then was
not occasioned exclusively by an act of God or force majeure;
Issue: WON the damage suffered by private respondents was a human factor — negligence or imprudence — had
damnum absque injuria (injury without loss). Or due to intervened. The effect then of the force majeure in question

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 TORTS AND DAMAGES

may be deemed to have, even if only partly, resulted from the building, which remained intact after the
participation of man. Thus, the whole occurrence was thereby storm.
humanized, as it were, and removed from the rules applicable
to acts of God.
Another factor and perhaps the most likely
reason for the dislodging of the roofing
CA decision affirmed.
structural trusses is the improper anchorage
of the said trusses to the roof beams. The 1/2'
SO ORDERED.
diameter steel bars embedded on the
concrete roof beams which serve as truss
anchorage are not bolted nor nailed to the
SOUTHEASTERN COLLEGE, INC. V CA trusses. Still, there are other steel bars which
GR 126389, JULY 10, 1998 were not even bent to the trusses, thus, those
trusses are not anchored at all to the roof
BACKGROUND: beams.

RTC: Giving credence to the ocular inspection report to the

effect that subject school building had a "defective roofing o It then recommended that "to avoid any further loss and
structure," found that, while typhoon "Saling" was damage to lives, limbs and property of persons living in
accompanied by strong winds, the damage to private the vicinity," the fourth floor of subject school building be
respondents' houses "could have been avoided if the declared as a "structural hazard."
construction of the roof of [petitioner's] building was not
faulty." Issue: WON the damage on the roof of the building
of private respondents resulting from the impact of
CA: Affirmed with modification the RTC’s disposition by the falling portions of the school building's roof
reducing the award of moral damages from P1M to P200K. ripped off by the strong winds of typhoon "Saling",
was, within legal contemplation, due to fortuitous
SC: Reversed CA’s decision. Found no clear and convincing event?
evidence to sustain the judgment of the appellate court. Held
that petitioner has not been shown negligent or at fault Held: Yes. The damage on the roof of the building of
regarding the construction and maintenance of its school private respondents is due to the typhoon which is
building in question and that typhoon "Saling" was the a fortuitous event within legal contemplation.
proximate cause of the damage suffered by private Petitioner has not been shown negligent or at fault
respondents' house. considering the evidences presented.

Facts: Ratio:

o Private respondents are owners of a house at 326 College Art 1174. Except in cases expressly specified by the
Road, Pasay City, while petitioner owns a four-storey law, or when it is otherwise declared by stipulation,
school building along the same College Road. On October or when the nature of the obligation requires the
11, 1989, a powerful typhoon "Saling" hit Metro Manila. assumption of risk, no person shall be responsible
Buffeted by very strong winds, the roof of petitioner's for those events which could not be foreseen, or
building was partly ripped off and blown away, landing on which, though foreseen, were inevitable.
and destroying portions of the roofing of private
respondents' house. After the typhoon had passed, an
ocular inspection of the destroyed building was FORTUITOUS EVENT/ CASO FORTUITO, Defined:
conducted by a team of engineers headed by the city
building official, Engr. Jesus L. Reyna. Pertinent aspects of
Partidas: "an event which takes place by accident
the latter's Report dated October 18, 1989 stated, as
and could not have been foreseen."
follows:

Escriche: "an unexpected event or act of God which

One of the factors that may have led to this
could neither be foreseen nor resisted."
calamitous event is the formation of the
building in the area and the general direction
of the wind. Situated in the peripheral lot is an Tolentino: "[f]ortuitous events may be produced by
almost U-shaped formation of 4-storey two general causes: (1) by nature, such as
building. Thus, with the strong winds having a earthquakes, storms, floods, epidemics, fires, etc.
westerly direction, the general formation of and (2) by the act of man, such as an armed
the building becomes a big funnel-like invasion, attack by bandits, governmental
structure, the one situated along College prohibitions, robbery, etc."
Road, receiving the heaviest impact of the
strong winds. Hence, there are portions of the  In the present case, there is no question that a
roofing, those located on both ends of the typhoon or storm is a fortuitous event, a natural
occurrence which may be foreseen but is

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 TORTS AND DAMAGES

unavoidable despite any amount of foresight, building were regularly undertaken. Petitioner was
diligence or care. In order to be exempt from even willing to present its maintenance supervisor
liability arising from any adverse consequence to attest to the extent of such regular inspection but
engendered thereby, there should have been no private respondents agreed to dispense with his
human participation amounting to a negligent act. testimony and simply stipulated that it would be
 A person claiming damages for the negligence of corroborative of the vice president's narration.
another has the burden of proving the existence of 4. The city building official, who has been in the city
fault or negligence causative of his injury or loss. The government service since 1974, admitted in open
facts constitutive of negligence must be court that no complaint regarding any defect on the
affirmatively established by competent same structure has ever been lodged before his
evidence, not merely by presumptions and office prior to the institution of the case at bench.
conclusions without basis in fact.
SC: It is a matter of judicial notice that typhoons are
EVIDENCE/S PRESENTED: common occurrences in this country. If subject school
building's roofing was not firmly anchored to its trusses,
obviously, it could not have withstood long years and several
PRIVATE RESPONDENT: merely relied on the aforementioned
typhoons even stronger than "Saling."
report submitted by a team which made an ocular inspection
of petitioner's school building after the typhoon.
6. Prescription
SC: As the term imparts, an ocular inspection is one by means
of actual sight or viewing. What is visual to the eye though, is
[Article 1146.] The following actions must be
not always reflective of the real cause behind. For instance, one
instituted within four years.
who hears a gunshot and then sees a wounded person, cannot
1. Upon inquiry to the right of the plaintiff.
always definitely conclude that a third person shot the victim.
2. Upon a quasi delict.
It could have been self-inflicted or caused accidentally by a
stray bullet. The relationship of cause and effect must be clearly
shown.
The Supreme Court explained in Kramer, Jr. that the right of
action accrues when there exists a cause of action, which consists
In the present case, other than the said ocular inspection, no of three (3) elements, namely:
investigation was conducted to determine the real cause of the
partial unroofing of petitioner's school building. Private 1. A right in favor of the plaintiff by whatever means and
respondents did not even show that the plans, specifications under whatever law it arises or is created;
and design of said school building were deficient and defective. 2. An obligation on the part of the defendant to respect
Neither did they prove any substantial deviation from the
such right; and
approved plans and specifications. Nor did they conclusively
3. An act or omission on the part of such defendant
establish that the construction of such building was basically
violative of the right of the plaintiff.
flawed.
The prescriptive period must be counted when the last element of
PETITIONER: commission of an act or omission violative of the right of the
plaintiff, which is the time when the cause of action arises.
1. Obtained both building permit and certificate of
occupancy from city building official. Relations back doctrine – That principle of law by which an act
done at one time is considered by fiction of law to have been
done at some antecedent period. It is a doctrine which, although
SC: prima facie evidence of the regular and proper
of equitable origin, has a well-recognized application to
construction of subject school building.
proceedings at law; a legal fiction invented to promote the ends
of justice or prevent injustice and occurrence of injuries where
2. When part of its roof needed repairs of the damage otherwise there would be no remedy.
inflicted by typhoon "Saling", the same city official
gave the go-signal for such repairs — without any KRAMER v CA,
deviation from the original design — and G.R. No. L-83524, October 13, 1989
subsequently, authorized the use of the entire
fourth floor of the same building.
Facts:

SC: These only prove that subject building suffers

from no structural defect, contrary to the report o April 8, 1976- F/B Marjolea, a fishing boat owned by the
that its "U-shaped" form was "structurally petitioners Ernesto Kramer, Jr. and Marta Kramer, was
defective." navigating its way from Marinduque to Manila.
Somewhere near Maricabon Island and Cape Santiago,
the boat figured in a collision with an inter-island vessel,
3. Presented its vice president for finance and the M/V Asia Philippines owned by the private
administration who testified that an annual respondent Trans-Asia Shipping Lines, Inc. As a
maintenance inspection and repair of subject school

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 TORTS AND DAMAGES

consequence of the collision, the F/B Marjolea sank, The trial court went on to
taking with it its fish catch. say that the four-year
o After the mishap, the captains of both vessels filed their prescriptive period
respective marine protests with the Board of Marine provided in Article 1146 of
Inquiry of the Philippine Coast Guard. The Board the Civil Code should begin
conducted an investigation for the purpose of to run only from April 29,
determining the proximate cause of the maritime 1982, the date when the
collision. negligence of the crew of
o The Board concluded that the loss of the F/B Marjolea the M/V Asia Philippines
and its fish catch was attributable to the negligence of had been finally
the employees of the private respondent who were on ascertained.
board the M/V Asia Philippines during the collision.
o May 30, 1985 (9 years after the incident) - The
Held: The petition is devoid of merit. Under Article 1146 of the
petitioners instituted a Complaint for damages against
Civil Code, an action based upon a quasi-delict must be
the private respondent the Regional Trial Court
instituted within four (4) years. The prescriptive period begins
from the day the quasi-delict is committed.
RESPOPNDENTS: PETITIONERS:
He argued that under Article Contended that maritime
Ratio: In Espanol vs. Chairman, Philippine Veterans
1146 of the Civil Code, the collisions have peculiarities
Administration, 17 this Court held as follows-
prescriptive period for and characteristics which
instituting a Complaint for only persons with special
damages arising from a skill, training and The right of action accrues when there exists a cause
quasi-delict like a maritime experience like the of action, which consists of 3 elements, namely: a) a
collision is four years. He members of the Board of right in favor of the plaintiff by whatever means
maintained that the Marine Inquiry can properly and under whatever law it arises or is created; b)
petitioners should have filed analyze and resolve. The an obligation on the part of defendant to respect
their Complaint within four petitioners argued that the such right; and c) an act or omission on the part of
years from the date when running of the prescriptive such defendant violative of the right of the plaintiff
their cause of action period was tolled by the ... It is only when the last element occurs or takes
accrued, i.e., from April 8, filing of the marine protest place that it can be said in law that a cause of action
1976 when the maritime and that their cause of has arisen ...
collision took place, action accrued only on
April 29, 1982, the date From the foregoing ruling, it is clear that the prescriptive
when the Decision period must be counted when the last element occurs or takes
the Complaint filed on May
ascertaining the negligence place, that is, the time of the commission of an act or omission
30, 1985 was instituted
of the crew of the M/V Asia violative of the right of the plaintiff, which is the time when
beyond the four-year
Philippines had become the cause of action arises.
prescriptive period.
final, and that the four-year
prescriptive period under
Article 1146 of the Civil The aggrieved party need not wait for a determination by an
Code should be computed administrative body like a Board of Marine Inquiry, that the
from the said date. collision was caused by the fault or negligence of the other
party before he can file an action for damages.

7. Double recovery
Issue: WON the prescriptive period for filing the complaint has
been prescribed [Art. 2177] Responsibility for fault or negligence
under the preceding article is entirely separate and
distinct from the civil liability arising from
RTC: CA:
negligence under the Penal Code. But the plaintiff
The trial court observed Private respondents should cannot recover damages twice for the same act or
that in ascertaining have immediately instituted omission of the defendant.
negligence relating to a a complaint for damages
maritime collision, there is a based on a quasi-delict
need to rely on highly within four years from the 8. Involuntariness
technical aspects attendant said marine incident
to such collision, and that because its cause of action It is a complete defence in quasi-delict cases and the
the Board of Marine Inquiry had already definitely defendant is therefore not liable if force was exerted
was constituted pursuant to ripened at the onset of the on him.
the Philippine Merchant collision.
Marine Rules and Law on Contracts Revised Penal Code
Regulations Force and intimidation result The person acting because of
in vitiated consent and the the force or intimidation
employed upon him is

JD-2 AUF-SOL MIDTERMS 82

 TORTS AND DAMAGES

resulting contract is subsidiarily liable to the to comply with the demands of the hospital, Ty was
considered voidable. offended party. compelled to sign a promissory note, open an account
with Metrobank and issue the checks to effect her
Persons using violence or mother’s immediate discharge.
causing fear are primarily o The trial court rendered a Decision finding Ty guilty of
liable for acts committed by seven (7) counts of violation of B.P. 22 and sentencing
third persons acting under her to a prison term of 42 months (7 checks x 6 months
irresistible force or ea = 42 months).
uncontrollable fear. If there o In its Decision dated 31 July 2001, the appellate court
be no such persons, those affirmed the judgment of the trial court with
doing the acts shall be liable modification. It set aside the penalty of imprisonment
secondarily. and instead sentenced Ty "to pay a fine of sixty thousand
pesos (P60,000.00) equivalent to double the amount of
the check, in each case."
G.R. No. 149275 September 27, 2004 o In its assailed Decision, the Court of Appeals rejected
VICKY C. TY vs. PEOPLE OF THE PHILIPPINES Ty’s defenses of involuntariness in the issuance of the
TINGA, J.: checks and the hospital’s knowledge of her checking
account’s lack of funds. It held that B.P. 22 makes the
mere act of issuing a worthless check punishable as a
Facts: special offense, it being a malum prohibitum. What the
law punishes is the issuance of a bouncing check and not
o This case stemmed from the filing of seven the purpose for which it was issued nor the terms and
(7) Informations for violation of B.P. 22 against Ty before conditions relating to its issuance.16
the RTC of Manila. The facts show that Ty’s mother Chua
Lao So Un was confined at the Manila Doctors’ Hospital Issue: WON Ty’s issuance of the checks was under the impulse
(hospital) from 30 October 1990 until 4 June 1992. Being of an uncontrollable fear of a greater injury or in avoidance of
the patient’s daughter, Ty signed the "Acknowledgment a greater evil or injury (Involuntariness).
of Responsibility for Payment" in the Contract of
Admission dated 30 October 1990.6 As of 4 June 1992,
the Statement of Account7 shows the total liability of the Held: No.
mother in the amount of P657,182.40. Ty’s sister, Judy
Chua, was also confined at the hospital from 13 May Ratio: Whether the defense of uncontrollable fear is tenable
1991 until 2 May 1992, incurring hospital bills in the to warrant her exemption from criminal liability--has to be
amount of P418,410.55.8 The total hospital bills of the resolved in the negative. For this exempting circumstance to
two patients amounted to P1,075,592.95. On 5 June be invoked successfully, the following requisites must concur:
1992, Ty executed a promissory note wherein she (1) existence of an uncontrollable fear; (2) the fear must be
assumed payment of the obligation in installments.9 To real and imminent; and (3) the fear of an injury is greater than
assure payment of the obligation, she drew several or at least equal to that committed.
postdated checks against Metrobank payable to the
hospital. The seven (7) checks, each covering the amount
of P30,000.00, were all deposited on their due dates. But It must appear that the threat that caused the uncontrollable
they were all dishonored by the drawee bank and fear is of such gravity and imminence that the ordinary man
returned unpaid to the hospital due to insufficiency of would have succumbed to it. It should be based on a real,
funds, with the "Account Closed" advice. Soon imminent or reasonable fear for one’s life or limb.26 A mere
thereafter, the complainant hospital sent demand letters threat of a future injury is not enough. It should not be
to Ty by registered mail. As the demand letters were not speculative, fanciful, or remote.27 A person invoking
heeded, complainant filed the seven uncontrollable fear must show therefore that the compulsion
(7) Informations subject of the instant case.1 was such that it reduced him to a mere instrument acting not
o For her defense, Ty claimed that she issued the checks only without will but against his will as well.28 It must be of
because of "an uncontrollable fear of a greater injury." such character as to leave no opportunity to the accused for
She averred that she was forced to issue the checks to escape.
obtain release for her mother whom the hospital
inhumanely and harshly treated and would not discharge In this case, far from it, the fear, if any, harbored by Ty was
unless the hospital bills are paid. She alleged that her not real and imminent. Ty claims that she was compelled to
mother was deprived of room facilities, such as the air- issue the checks--a condition the hospital allegedly demanded
condition unit, refrigerator and television set, and of her before her mother could be discharged--for fear that
subject to inconveniences such as the cutting off of the her mother’s health might deteriorate further due to the
telephone line, late delivery of her mother’s food and inhumane treatment of the hospital or worse, her mother
refusal to change the latter’s gown and bedsheets. She might commit suicide. This is speculative fear; it is not the
also bewailed the hospital’s suspending medical uncontrollable fear contemplated by law.
treatment of her mother. The "debasing treatment," she
pointed out, so affected her mother’s mental,
To begin with, there was no showing that the mother’s illness
psychological and physical health that the latter
was so life-threatening such that her continued stay in the
contemplated suicide if she would not be discharged
hospital suffering all its alleged unethical treatment would
from the hospital. Fearing the worst for her mother, and
induce a well-grounded apprehension of her death. Secondly,

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 TORTS AND DAMAGES

it is not the law’s intent to say that any fear exempts one from risk arising from what the defendant is to do or leave
criminal liability much less petitioner’s flimsy fear that her undone.
mother might commit suicide. In other words, the fear she
invokes was not impending or insuperable as to deprive her of i.e. For instance, if the plaintiff was warned that it is
all volition and to make her a mere instrument without will, still dangerous to take the vehicle from the repair shop
moved exclusively by the hospital’s threats or demands. because the repairs are still untested, there would be
an express assumption of risk if he nevertheless took
Ty has also failed to convince the Court that she was left with the vehicle from the shop with the express waiver of
no choice but to commit a crime. She did not take advantage liability in favor of the proprietor.
of the many opportunities available to her to avoid
committing one. By her very own words, she admitted that Pleasantville Development Corporation vs. Court
the collateral or security the hospital required prior to the of Appeals (253 SCRA 10, 19 [1996])
discharge of her mother may be in the form of postdated
checks or jewelry. And if indeed she was coerced to open an Case involved a buyer of a subdivision lot who
account with the bank and issue the checks, she had all the erroneously built on another’s lot because he was
opportunity to leave the scene to avoid involvement. told to do so by the petitioner corporation. One of
the defenses invoked by the petitioner corporation
was that there was a waiver in the Contract of Sale
Moreover, petitioner had sufficient knowledge that the of the right to recover damages based on
issuance of checks without funds may result in a violation of negligence.
B.P. 22. She even testified that her counsel advised her not to
open a current account nor issue postdated checks "because However, the Supreme Court ruled that a person
the moment I will not have funds it will be a big problem." cannot contract away his right to recover damages
resulting from negligence. Even if such waiver was
Sub Issue: Can the justifying circumstance of State Necessity made, the same is contrary to public policy and
be applied to the case. cannot be allowed. Rights can be waived unless the
waiver is contrary to law, public order, public
policy, morals or good customs, or prejudicial to a
Held: No.
third person with a right recognized by law.

Ratio: We do not agree. The law prescribes the presence of

three requisites to exempt the actor from liability under the Effect of a waiver to recover before/after negligent act:
doctrine if state necessity: (1) that the evil sought to be
avoided actually exists; (2) that the injury feared be greater a. Before – Invalid as it is prohibited.
than the one done to avoid it; (3) that there be no other b. After – Valid; Condonation of obligation.
practical and less harmful means of preventing it.32
Third Division
In the instant case, the evil sought to be avoided is merely Gatchalian v. Delim
expected or anticipated. If the evil sought to be avoided is GR No. L-56487
merely expected or anticipated or may happen in the future, October 21, 1991
this defense is not applicable. Ty could have taken advantage
of an available option to avoid committing a crime. By her Feliciano, J:
own admission, she had the choice to give jewelry or other
forms of security instead of postdated checks to secure her Facts:
obligation. o Petitioner Gatchalian was riding a “Thames” mini-bus
when it met a vehicular accident. A snapping sound was
heard and a few moments later, the mini-bus went off
Moreover, for the defense of state of necessity to be availing, the road and turned turtle. Gatchalian and other
the greater injury feared should not have been brought about passengers were badly injured and they were all taken to
by the negligence or imprudence, more so, the willful inaction Bethany Hospital, La union for medical treatment.
of the actor. In this case, the issuance of the bounced checks
was brought about by Ty’s own failure to pay her mother’s o 3 days later, Mrs. Adela Delim, wife of respondent Delim
hospital bills. went to Bethany Hospital. She visited the injured
passengers, paid their hospital bills and medical
expenses, and had them signed an already prepared
9. Waiver joint Affidavit which stated:

Express waiver of the right to recover That we were passengers of Thames with Plate No.
52-222 PUJ Phil. 73 and victims after the said
There is assumption of risk if the plaintiff, in advance, has Thames met an accident at Barrio Payocpoc Norte,
expressly waived his right to recover damages for the Bauang, La Union while passing through the
negligent act of the defendant. He has given his express National Highway No. 3;
consent to relieve the defendant of an obligation of conduct
toward him, and to take his chances of injury from a known That after a thorough investigation the said
Thames met the accident due to mechanical defect

JD-2 AUF-SOL MIDTERMS 84

 TORTS AND DAMAGES

and went off the road and turned turtle to the east PLEASANTVILLE V. CA
canal of the road into a creek causing physical GR. NO 79688 (1996)
injuries to us;

xxx xxx xxx Facts:

o Edith Robillo purchased from petitioner a parcel of land
That we are no longer interested to file a designated as Lot 9 in Pleasantville Subdivision.
complaint, criminal or civil against the said driver o In 1975, respondent Eldred Jardinico bought the rights to
and owner of the said Thames, because it was an the lot from Robillo.
accident and the said driver and owner of the said o Upon completing all payments, Jardinico secured from
Thames have gone to the extent of helping us to be the Register of Deeds Transfer Certificate of Title No.
treated upon our injuries. 106367 in his name.
o It was then that he discovered that improvements had
o Notwithstanding the document, Gatchalian still filed an been introduced on Lot 9 by respondent Wilson Kee,
action to recover compensatory and moral damages. who had taken possession thereof.
Respondent contended that petitioner no longer had a o It appears that on March 26, 1974, Kee bought on
cause of action since she already signed a waiver along installment Lot 8 of the same subdivision from C.T.
with other passengers. Torres Enterprises, Inc. (CTTEI), the exclusive real estate
agent of petitioner.
Issue: Whether or not the signed joint affidavit o After the preparation of the lot plan and a copy thereof
constituted a waiver. given to Kee, CTTEI through its employee, Zenaida
Octaviano, accompanied Kee's wife, Donabelle Kee, to
Held: No, the joint affidavit signed by Gatchalian and inspect Lot 8.
other passengers did not constitute a waiver. o Unfortunately, the parcel of land pointed by Octaviano
was Lot 9. Thereafter, Kee proceeded to construct his
Ratio: residence, a store, an auto repair shop and other
A waiver, to be valid and effective, must in the first place be improvements on the lot.
couched in CLEAR AND UNEQUIVOCAL TERMS which leave no o Jardinico’s lawyer wrote to Kee to remove all the
doubt as to the intention of a person to give up a right or improvements he constructed and vacate Lot 9.
benefit which legally pertains to him. A waiver may not o Kee, in turn, filed a third-party complaint against
casually be attributed to a person when the terms thereof do petitioner and CTTEI.
not explicitly and clearly evidence an intent to abandon a right o MTCC held that the erroneous delivery of Lot 9 to Kee
vested in such person. was attributable to CTTEI, and that the petitioner cannot
use as a defense
Moreover, the circumstances under which the Joint Affidavit o On appeal, RTC ruled that petitioner and CTTEI were not
was signed by petitioner Gatchalian need to be considered. at fault or were not negligent, there being no
Petitioner testified that she was still reeling from the effects of preponderant evidence to show that they directly
the vehicular accident, having been in the hospital for only participated in the delivery of Lot 9 to Kee.
three days, when the purported waiver in the form of the o CA reversed the RTC’s decision and ruled that the
Joint Affidavit was presented to her for signing; that while erroneous delivery was due to the negligence of CTTEI,
reading the same, she experienced dizziness but that, seeing and that such wrong delivery was likewise imputable to
the other passengers who had also suffered injuries sign the its principal, petitioner herein
document, she too signed without bothering to read the Joint
Affidavit in its entirety. Considering these circumstances there Issues:
appears substantial doubt whether petitioner understood fully 1. WON Kee can be considered builder in good faith
the import of the Joint Affidavit (prepared by or at the (main argument)
instance of private respondent) she signed and whether she 2. WON the provision of the Contract of Sale
actually intended thereby to waive any right of action against constitutes as a waiver for petitioner’s liability (this
private respondent. is the waiver-related topic)

Finally, because what is involved here is the liability of a Ratio:

common carrier for injuries sustained by passengers in respect 1. YES. Good faith consists in the belief of the builder
of whose safety a common carrier must that the land he is building on is his and his
exercise extraordinary diligence, we must construe any such ignorance of any defect or flaw in his title. And as
purported waiver most strictly against the common carrier. good faith is presumed, petitioner has the burden
For a waiver to be valid and effective, it must not be contrary of proving bad faith on the part of Kee. At the time
to law, morals, public policy or good customs. To uphold a he built improvements on Lot 8, Kee believed that
supposed waiver of any right to claim damages by an injured said lot was what he bought from petitioner. He
passenger, under circumstances like those exhibited in this was not aware that the lot delivered to him was
case, would be to dilute and weaken the standard of not Lot 8. Thus, Kee's good faith.
extraordinary diligence exacted by the law from common
carriers and hence to render that standard Q: PLEASANTVILLE POINTED OUT KEE’S VIOLATION OF THE
unenforceable. We believe such a purported waiver is CONTRACT OF INSTALLMENT. DOES THIS AMOUNT TO BAD
offensive to public policy. FAITH? IF SO, DOES THIS AFFECT KEE’S GOOD FAITH?

JD-2 AUF-SOL MIDTERMS 85

 TORTS AND DAMAGES

NO TO BOTH. Such violations have no bearing was only contributory, the immediate and
whatsoever on whether Kee was a builder in good proximate cause of the injury being the
faith, that is, on his state of mind at the time he defendant’s lack of due care, the plaintiff may
built the improvements on Lot 9. These alleged recover damages, but the courts shall mitigate the
violations may give rise to petitioner's cause of damages to be awarded.
action against Kee under the said contract
(contractual breach), but may not be bases to
negate the presumption that Kee was a builder in a. Plaintiff’s own negligence is the proximate cause
good faith. o He cannot recover damages

2. NO. Paragraph 13 states: b. Plaintiff’s negligence is not merely contributory

because it is a concurring proximate cause
13. The Vendee hereby declares that
o It is sufficient to bring about the effect but
prior to the execution of his contract
plaintiff’s negligence occurs simultaneously
he/she has personally examined or
inspected the property made subject- with that of the defendant.
matter hereof, as to its location,
contours, as well as the natural It is submitted that in these cases, no
condition of the lots and from the date recovery can be had.
hereof whatever consequential change
therein made due to erosion, the said c. Plaintiff’s negligence, together with defendant’s
Vendee shall bear the expenses of the negligence, is part of the same causal set.
necessary fillings, when the same is so o Plaintiff’s negligence is not sufficient to
desired by him/her.11 cause the injury while defendant’s
negligence is also not equally sufficient. The
The subject matter of this provision of the contract is the effect would not have resulted without the
change of the location, contour and condition of the lot due to
concurrence of all of them.
erosion. It merely provides that the vendee, having examined
the property prior to the execution of the contract, agrees to
shoulder the expenses resulting from such change. It cannot Considered merely contributory. The courts
be interpreted that Kee contracted away his right to recover are therefore given the discretion to
damages resulting from petitioner's negligence. Such waiver determine the percentage of mitigation
would be contrary to public policy and cannot be allowed. that will be imposed against the plaintiff.
"Rights may be waived, unless the waiver is contrary to law,
public order, public policy, morals, or good customs, or d. Merely contributory negligence
prejudicial to a third person with a right recognized by law." o Mitigates liability.

May result in the reduction of the liability of

10. Immunity from personal liability by public officials the defendant to more than half. It is
believed, however, that the reduction
When a public officer goes beyond the scope of his cannot be more than fifty percent (50%) in
duty particularly when acting tortuously, he is not this jurisdiction because reduction by more
entitled to protection on account of his office but is fifty percent (50%) is no longer consistent
liable for his acts like any private individual. with a finding that the defendant’s
negligence was the proximate cause of the
A public officer who is the defendant in a case for damage or injury.
damages under Article 32 cannot escape liability under
the doctrine of state immunity. The doctrine of state Doctrine of comparative negligence – The relative degree of
immunity applies only if the acts involved are acts negligence of the parties is considered in determining whether,
done by officers in the performance of official duties and to what degree, either should be responsible for his
within the ambit of their powers. Obviously, officers do negligence. (Apportionment of damages)
not act within the ambit of their powers if they would
violate the constitutional rights of other persons. N.B. The defence of contributory negligence does not apply in
criminal cases committed through reckless imprudence, since one
11. Contributory negligence cannot allege the negligence of another to evade the effects of his
own negligence.
Conduct on the part of the injured party, contributing
The fact that a “practical joke” is the cause of an injury does not
as a legal cause to the harm he has suffered, which
excuse the perpetrator from liability.
falls below the standard to which he is required to
conform for his own protection. Imputed contributory negligence – Negligence is imputed if the
actor is different from the person who is being made liable.
Art. 2179. When the plaintiff’s own negligence was
the immediate and proximate cause of his injury,
he cannot recover damages. But if his negligence

JD-2 AUF-SOL MIDTERMS 86

 TORTS AND DAMAGES

Since a master may be held liable for his servant’s wrongful act, court and the appellate court drew the inference that
the law imputes to the master the act of the servant, and if the there was negligence on the part of Carbonel, the dump
act is negligent or wrongful, and proximately results in injury to a truck driver, and that this negligence was the proximate
third person, the negligence or wrongful conduct is the negligence cause of the accident and Dionisio's injuries. Hence, this
or wrongful conduct of the master, for which he is liable. petition.

Effect: The defendant is subject to mitigated liability even if the Issue: WON Leonardo Dionisio is negligent.
plaintiff was not himself personally negligent because the
negligence of another is imputed to the plaintiff.
Held: YES.

Ratio: In this case, Dionisio was unable to prove possession of

G.R. No. L-65295 March 10, 1987 a validcurfew pass during the night of the accident and that
the preponderance of evidence shows that he did not have
PHOENIX CONSTRUCTION, INC. and ARMANDO U. such a pass during that night. Such fact tends to show that he
CARBONEL, petitioners, was speeding home and might had indeed purposely put out
vs. his headlights before the accident, in order to avoid detection
THE INTERMEDIATE APPELLATE COURT and LEONARDO and possibly arrest by the police in the nearby police station
DIONISIO, respondents. which he (being a resident in the area) knew was not far away
from the intersection. for travelling after the onset of curfew
without a valid curfew pass. There are also sufficient
FELICIANO, J: testimonies that Dionisio was speeding Although there is no
sufficient evidence to show that Dionisio was so heavily under
Facts: the influence of liquor as to constitute his driving a motor
vehicle per se an act of reckless imprudence, the court rules
that Dionisio was negligent the night of the accident based on
o In the early morning of 15 November 1975 — at about the aforementioned facts.
1:30 a.m. — private respondent Leonardo Dionisio was
on his way home, Dionisio had taken "a shot or two" of
liquor. Dionisio was driving his Volkswagen car and had NONETHELESS, we agree with the Court of First Instance and
just crossed an intersection which was not far from his the Intermediate Appellate Court that the legal and
home , when his car headlights (in his allegation) proximate cause of the accident and of Dionisio's injuries
suddenly failed. was the wrongful — or negligent manner in which the dump
o He switched his headlights on "bright" and thereupon he truck was parked
saw a Ford dump truck looming some 2-1/2 meters away
from his car. The dump truck, owned by and registered The petitioners, however, urge that the truck driver's
in the name of petitioner Phoenix Construction Inc. negligence was merely a "passive and static condition" and
("Phoenix"), was parked on the right hand side of the that private respondent Dionisio's negligence was an "efficient
Street (i.e., on the right hand side of a person facing in intervening cause and that consequently Dionisio's negligence
the same direction toward which Dionisio's car was must be regarded as the legal and proximate cause of the
proceeding), facing the oncoming traffic. accident rather than the earlier negligence of Carbonel.
o The dump truck was parked askew (not parallel to the
street curb) in such a manner as to stick out onto the
street, partly blocking the way of oncoming traffic. There We note, firstly, that even in the United States, the
were no lights nor any so-called "early warning" reflector distinctions between "cause" and "condition" which the
devices set anywhere near the dump truck, front or rear. 'petitioners would have us adopt have already been "almost
o The dump truck was parked by petitioner Armando U. entirely discredited "Cause" and "condition" still find
Carbonel, a regular driver phoenix, with the permission occasional mention in the decisions; but the distinction is now
of his employer Phoenix. Dionisio claimed that he tried almost entirely discredited. So far as it has any validity at all, it
to avoid a collision by swerving his car to the left but it must refer to the type of case where the forces set in
was too late and his car smashed into the dump truck. As operation by the defendant have come to rest in a position of
a result of the collision, Dionisio suffered some physical apparent safety, and some new force intervenes. But even in
injuries including some permanent facial scars, a such cases, it is not the distinction between "cause" and
"nervous breakdown" and loss of two gold bridge "condition" which is important but the nature of the risk and
dentures. the character of the intervening cause. 9
o Dionisio commenced an action for damages in the Court
of First Instance of Pampanga basically claiming that the We believe, secondly, that the truck driver's negligence far
legal and proximate cause of his injuries was the from being a "passive and static condition" was rather an
negligent manner in which Carbonel had parked the indispensable and efficient cause. The collision between the
dump truck entrusted to him by his employer Phoenix. dump truck and the private respondent's car would in an
o Phoenix and Carbonel, on the other hand, countered probability not have occurred had the dump truck not been
that the proximate cause of Dionisio's injuries was his parked askew without any warning lights or reflector devices.
own recklessness in driving fast at the time of the Dionisio's negligence was not of an independent and
accident, while under the influence of liquor, without his overpowering nature as to cut, as it were, the chain of
headlights on and without a curfew pass. Both the trial causation in fact between the improper parking of the dump

JD-2 AUF-SOL MIDTERMS 87

 TORTS AND DAMAGES

truck and the accident, nor to sever the juris vinculum of such that, in the opinion of the appellate court, his
liability. loss of income "was not solely attributable to the
accident in question;" and
We hold that private respondent Dionisio's negligence was
"only contributory," that the "immediate and proximate 3. The award of P100,000.00 as moral damages
cause" of the injury remained the truck driver's "lack of due was held by the appellate court as excessive and
care" and that consequently respondent Dionisio may unconscionable and hence reduced to P50,000.00.
recover damages though such damages are subject to
mitigation by the courts (Article 2179, Civil Code of the
Philippines).
The award of P10,000.00 as exemplary damages
and P4,500.00 as attorney's fees and costs remained
The relative location in the continuum of time of the plaintiff's untouched
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 G.R. No. L-40452 October 12, 1989
risks created by such act or omission for the rest of the GREGORIO GENOBIAGON
community. The petitioners urge that the truck driver (and vs.
therefore his employer) should be absolved from COURT OF APPEALS and PEOPLE OF THE PHILIPPINES
responsibility for his own prior negligence because the
unfortunate plaintiff failed to act with that increased diligence PONENTE: GRIÑO-AQUINO, J.:
which had become necessary to avoid the peril precisely
created by the truck driver's own wrongful act or omission. To BACKGROUND:
accept this proposition is to come too close to wiping out the  Prayer to SC: Petition for review, October 10, 1974
fundamental principle of law that a man must respond for the  Petitioner tried for the crime of homicide thru reckless
forseeable consequences of his own negligent act or omission. imprudence
Our law on quasi-delicts seeks to reduce the risks and burdens  CFI/RTC: Convicted Genobiagon: indeterminate penalty
of living in society and to allocate them among the members of three (3) months of arresto mayor as minimum to one
of society. To accept the petitioners' pro-position must tend (1) year, one (1) month and eleven (11) days of prision
to weaken the very bonds of society. correccional as maximum, to indemnify the heirs of Rita
Banzon Cabrera the sum of P6,000 with subsidiary
AWARD Turning to the award of damages and taking into imprisonment in case of insolvency, not to exceed 1/3 of
account the comparative negligence of private respondent the principal penalty and to pay the costs
Dionisio on one hand and petitioners Carbonel and Phoenix  CA: Convicted Genobiagon with damages raised to
upon the other hand, 17 we believe that the demands of P12,000.00 but without subsidiary imprisonment in case
substantial justice are satisfied by allocating most of the of insolvency
damages on a 20-80 ratio. Thus, 20% of the damages awarded  SC: Affirmed conviction, increased civil liability to Php.
by the respondent appellate court, except the award of 30,000 in accordance with prevailing jurisprudence.
P10,000.00 as exemplary damages and P4,500.00 as
attorney's fees and costs, shall be borne by private Facts:
respondent Dionisio; only the balance of 80% needs to be paid
by petitioners Carbonel and Phoenix who shall be solidarity o On December 31,1959, at about 7:30 o'clock in the
liable therefor to the former. The award of exemplary evening, a rig driven by Genobiagon’s an old woman, Rita
damages and attorney's fees and costs shall be borne Cabrera, 81 years old was crossing the right side of the
exclusively by the petitioners. Phoenix is of course entitled to street of a Market. Genobiagon's rig was following
reimbursement from Carbonel. 18 We see no sufficient reason another at a distance of two meters. Rita started to cross
for disturbing the reduced award of damages made by the when the first rig was approaching her, but as
respondent appellate court. Genobiagon's vehicle was going so fast not only because
of the steep road, but also because he was trying to
overtake the rig ahead of him, the appellant's rig hit Rita,
Phoenix and Carbonel appealed to the Intermediate Appellate who as a consequence, fell at the middle of the road.
Court. That court in CA-G.R. No. 65476 affirmed the decision Genobiagon continued to drive on, but a by-stander, ran
of the trial court but modified the award of damages to the after Genobiagonwhen stopped, he was asked why he hit
following extent: the old woman,his answer was, “it was the old woman
that bumped him.”. The victim was brought to the
1. The award of P15,000.00 as compensatory hospital where she died three hours later.
damages was reduced to P6,460.71, the latter
being the only amount that the appellate court Issue: WON the CA erred in not finding that the reckless
found the plaintiff to have proved as actually negligence of the victim was the proximate cause of the
sustained by him; accident which led to her death.

Held: NO.
2. The award of P150,000.00 as loss of expected
income was reduced to P100,000.00,basically
Ratio:
because Dionisio had voluntarily resigned his job

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 TORTS AND DAMAGES

1. The issue is factual ----- Well-entrenched in our

jurisprudence is the rule that findings of fact of the
trial court and the Court of Appeals are binding
upon the SC

2. 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 (People vs. Orbeta, CA-G.R. No.
321, March 29,1947)." (People vs. Quinones, 44
O.G. 1520).

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