NEGLIGENCE

A. DEFINITION AND TEST OF NEGLIGENCE

Cases:

1. PLDT vs. CA, GR No. 57079, September 29, 1989

Facts:
 Spouses Esteban were riding their jeep when they ran over an earth mound and
fell in an open trench on the road resulting to slight injuries to the husband and
serious injuries to the wife. The windshield of the jeep was also shattered due to
the accident.
 Spouses Esteban accused PLDT of negligence because of lack of warning signs
placed near the manhole dug resulting on the earth mound on the road causing
injuries to the wife.
 PLDT contends the injuries were the result of the negligence of the independent
contractor the company hired (Barte) and should be the one held liable and not
the company. PLDT filed a third-party complaint against Barte alleging that,
under the terms of 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 employees
 RTC ruled in favour of the spouses. From this decision both PLDT and private
respondents appealed, the latter appealing only as to the amount of damages.
Third-party defendant Barte did not appeal.
 CA under Justice Agrava as ponente reversed the decision of the RTC dismissing
the complaint of respondent spouses. It held that respondent Esteban spouses
were negligent and consequently absolved petitioner PLDT from the claim for
damages
Issue:
Whether or not PLDT can be held liable for the injuries caused to spouses Esteban
considering PLDT and Barte’s contention that the independent contractor placed signs
on the road and that it was the fault of Mr. Esteban because he did not diligently drive
the jeepney. Mr. Esteban had quickly swerved from the outer lane thereby hitting the
earth mound.
Ruling:
 No. The accident which 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.
A person claiming damages for the negligence of another has the burden of
proving the existence of such fault or negligence causative thereof. The facts
constitutive of negligence must be affirmatively established by competent
evidence. Whosoever relies on negligence for his cause of action has the burden in the
first instance of proving the existence of the same if contested, otherwise his action
must fail. Moreover, the omission to perform a duty, such as the placing of warning signs
on the site of the excavation, constitutes the proximate cause only when the doing of the
said omitted act would have prevented the injury.

In this case, the findings clearly show that the negligence of respondent Antonio
Esteban was not only contributory to his injuries and those of his wife but goes to the
very cause of the occurrence of the accident, as one of its determining factors, and
thereby precludes their right to recover damages.

The presence of warning signs could not have completely prevented the accident;
the only purpose of said signs was to inform and warn the public of the presence of
excavations on the site. The private respondents already knew of the presence of said
excavations. It was not the lack of knowledge of these excavations which caused the
jeep of respondents to fall into the excavation but the unexplained sudden swerving of
the jeep from the inside lane towards the accident mound.
 2. Ilocos Norte Electric Company vs. CA, GR No. 53401, November 6, 1989

Facts:

 Typhoon “Gening” buffeted the province of Ilocos Norte, bringing heavy rains
and consequent flooding in its wake.
 After the typhoon had abated and when the floodwaters were beginning to
recede, the deceased, Isabel Lao Juan, ventured out, and proceeded to the Five
Sisters Emporium, of which she was the owner and proprietress, to look after the
merchandise that might have been damaged.
 Wading in waist-deep flood, Isabel was followed by 2 of her employees. Suddenly,
the deceased screamed “Ay” and quickly sank into the water. The two girls
attempted to help, but failed. There was an electric wire dangling from a post and
moving in snake-like fashion in the water.
 Upon their shouts for help, Ernesto dela Cruz came out of the house of Antonio
Yabes. Ernesto tried to go to the deceased, but at four meters away from her he
turned back shouting that the water was grounded.
 When Antonio Yabes was informed by Ernesto that his mother-in- law had been
electrocuted, they requested the police to ask the people of INELCO to cut off the
electric current.
 The body of the deceased was recovered about two meters from an electric post.
Upon the request of the relatives of the deceased, Dr. Castro examined the body.
The skin was grayish or, in medical parlance, cyanotic, which indicated death by
electrocution. On the left palm, the doctor found an “electrically charged wound”
or a first degree burn. About the base of the thumb on the left hand was a burned
wound. The certificate of death prepared by Dr. Castro stated the cause of death
as “circulatory shock electrocution”
 In defense and exculpation, defendant presented the testimonies of its officers and
employees, and sought to prove that on and even before the day of Isabel Lao
Juan’s death, the electric service system of the INELCO in the whole franchise
area, did not suffer from any defect that might constitute a hazard to life and
property. The service lines, devices and other INELCO equipment had been
newly-installed prior to the date in question. As a public service operator and in
line with its business of supplying electric current to the public, defendant had
installed safety devices to prevent and avoid injuries to persons and damage to
property in case of natural calamities such as floods, typhoons, fire and others.
 An action for damages in the aggregate amount of P250000 was instituted by the
heirs of the deceased with the CFI.
 INELCO, however, theorizes that the deceased could have died simply by either
drowning or by electrocution due to negligence attributable only to herself. it was
pointed out that the deceased, without petitioner’s knowledge, caused the
 installation of a burglar deterrent by connecting a wire from the main house to
the iron gate and fence of steel matting, thus, charging the latter with electric
current whenever the switch is on. This might have caused the electrocution.
 The CFI ruled in favor of INELCO and dismissed the complaint but awarded
P25000 in moral damages and attorney’s fees of P45000.
 The CA set aside the CFI decision and ordered INELCO to pay actual damages of
P30229.45, compensatory damages of P50000, exemplary damages of P10000,
attorney’s fees of P3000, plus the cost of the suit.

Issue:

Whether or not INELCO is liable for damages considering that typhoons and
floods are fortuitous events

Ruling:

Yes, INELCO is liable.

While it is true that typhoons and floods are considered Acts of God for which no
person may be held responsible, it was not said eventuality which directly caused the
victim’s death. It was through the intervention of petitioner’s negligence that death
took place. “When an act of God combines or concurs with the negligence of the
defendant to produce an injury, the defendant is liable if the injury would not have
resulted but for his own negligent conduct or omission”

In this case, Engr. Juan from the NAPOCOR stated that when he set out that
morning for an inspection, there was no INELCO line man attending to the grounded
and disconnected electric lines. The INELCO Office was likewise closed around the
time of the electrocution.

At the INELCO, irregularities in the flow of electric current were noted because
“amperes of the switch volts were moving”. And yet, despite these danger signals,
INELCO had to wait for Engr. Juan to request that defendant’s switch be cut off—but
the harm was done. Asked why the delay, Loreto Abijero, one of INELCO’s linemen
answered that he “was not the machine tender of the electric plant to switch off the
current.”

In times of calamities, extraordinary diligence requires a supplier of electricity to

be in constant vigil to prevent or avoid any probable incident that might imperil life or
limb. The evidence does not show that defendant did that. On the contrary, evidence
discloses that there were no men (linemen or otherwise) policing the area, nor even
manning its office.

The negligence of petitioner having been shown, it may not now absolve itself
from liability by arguing that the victim’s death was solely due to a fortuitous event. A
person is excused from the force of the rule, that when he voluntarily assents to a
known danger he must abide by the consequences, if an emergency is found to exist or
if the life or property of another is in peril or when he seeks to rescue his endangered
property. Clearly, an emergency was at hand as the deceased’s property, a source of her
livelihood, was faced with an impending loss.

CA Decision affirmed with modification, increasing actual damages to P48229.

 3. Picart vs. Smith, 37 Phil. 809 Unavailable

Facts:

 On 12 December 1912, on the Carlatan Bridge, at San Fernando, La Union, Amado

Picart was riding on his pony over said bridge. Before he had gotten half way
across, Frank Smith Jr. approached from the opposite direction in an automobile,
going at the rate of about 10 or 12 miles per hour.
 As Smith neared the bridge he saw a horseman on it and blew his horn to give
warning of his approach. He continued his course and after he had taken the
bridge he gave two more successive blasts, as it appeared to him that the man on
horseback before him was not observing the rule of the road.
 Picart saw the automobile coming and heard the warning signals. However, being
perturbed by the novelty of the apparition or the rapidity of the approach, he
pulled the pony closely up against the railing on the right side of the bridge instead
of going to the left.
 As the automobile approached, Smith guided it toward his left, that being the
proper side of the road for the machine. In so doing Smith assumed that the
horseman would move to the other side. The pony had not as yet exhibited fright,
and the rider had made no sign for the automobile to stop. Seeing that the pony
was apparently quiet, Smith, instead of veering to the right while yet some
distance away or slowing down, continued to approach directly toward the horse
without diminution of speed.
 When he had gotten quite near, there being then no possibility of the horse
getting across to the other side, Smith quickly turned his car sufficiently to the
right to escape hitting the horse alongside of the railing where it was then
standing; but in so doing the automobile passed in such close proximity to the
animal that it became frightened and turned its body across the bridge with its
head toward the railing.
 In so doing, it was struck on the hock of the left hind leg by the flange of the car
and the limb was broken. The horse fell and its rider was thrown off with some
violence. As a result of its injuries the horse died.
 Picart received contusions which caused temporary unconsciousness and required
medical attention for several days.

Issue:
Whether or not Smith is guilty of negligence.

Ruling:

Yes. Smith, in maneuvering his car in the manner described, was guilty of
negligence such as gives rise to a civil obligation to repair the damage done.
 The test by which to determine the existence of negligence in a particular case
may be stated as follows: Did the defendant in doing the alleged negligent act use that
person would have used in the same situation? If not, then he is guilty of negligence.

What would constitute the conduct of a prudent man in a given situation must of
course be always determined in the light of human experience and in view of the facts
involved in the particular case. Abstract speculation cannot be of much value; as
reasonable men govern their conduct by the circumstances which are before them or
known to them, and hence they can be expected to take care only when there is
something before them to suggest or warn of danger. Reasonable foresight of harm is
always necessary before negligence can be held to exist. In fine, the proper criterion
for determining the existence of negligence in a given case is this: Conduct is said to be
negligent when a prudent man in the position of the tortfeasor would have foreseen
that an effect harmful to another was sufficiently probable to warrant his foregoing the
conduct or guarding against its consequences.

Applying this test to the conduct of the defendant in the present case, SC held
that negligence is clearly established. A prudent man, placed in the position of the
defendant, would have recognized that the course which he was pursuing was fraught
with risk, and would therefore have foreseen harm to the horse and the rider as
reasonable consequence of that course. Under these circumstances the law imposed on
the defendant the duty to guard against the threatened harm.

It goes without saying that the plaintiff himself was not free from fault, for he was
guilty of antecedent negligence in planting himself on the wrong side of the road.
However, the defendant was also negligent; and in such case the problem always is to
discover which agent is immediately and directly responsible.

It will be noted that the negligent acts of the two parties were not
contemporaneous, since the negligence of the defendant succeeded the negligence of
the plaintiff by an appreciable interval. Under these circumstances the law is that the
person who has the last fair chance to avoid the impending harm and fails to do so is
chargeable with the consequences, without reference to the prior negligence of the
other party.

In the nature of things the control of the situation had passed entirely to Smith, and it
was his duty either to bring his car to an immediate stop or, seeing that there were no
other persons on the bridge, to take the other side and pass sufficiently far away from
the horse to avoid the danger of collision. Instead of doing this, Smith ran straight on
until he was almost upon the horse. When Smith exposed the horse and rider to this
danger he was negligent in the eye of the law.
 4. People vs. Delos Santos, 355 SCRA 415 (2001)

Facts:

 Glenn Delos Santos and his 3 friends went to Bukidnon on his Isuzu Elf truck. On
their way, they decided to pass by a restaurant where Glenn had 3 bottles of beer.
On their way to Cagayan de Oro City from Bukidnon, Glenn’s truck, hit, bumped,
seriously wounded and claimed the lives of several members of the PNP who were
undergoing an endurance run on a highway wearing black shirts and shorts and
green combat shoes.
 Twelve trainees were killed on the spot, 12 were seriously wounded, 1 of whom
eventually died and 10 sustained minor injuries. At the time of the occurrence,
the place of the incident was very dark as there was no moon. Neither were there
lampposts that illuminated the highway.
 The trial court convicted Glenn of the complex crime of multiple murders,
multiple frustrated murders and multiple attempted murders, with the use of
motor vehicle as the qualifying circumstance.
o It sentenced him to suffer the penalty of death and ordered him to indemnify
each group of the heirs of the deceased in the amount of P75,000; each of
the victims of frustrated murder in the amount of P30,000; and each of the
victims of attempted murder in the amount of P10,000. Hence, this
automatic review.

Issue:

Whether there was intentional killing or attempt to kill the policemen, or a mere
reckless imprudence

Ruling:

From the convergence of circumstances, SC is inclined to believe that the tragic

event was more a product of reckless imprudence than of a malicious intent on Glenn’s
part.

The test for determining whether a person is negligent in doing an act whereby
injury or damage results to the person or property of another is this: Could a prudent
man, in the position of the person to whom negligence is attributed, foresee harm to
the person injured as a reasonable consequence of the course actually pursued? If so,
the law imposes a duty on the actor to refrain from that course or to take precautions
to guard against its mischievous results, and the failure to do so constitutes negligence.
Reasonable foresight of harm, followed by the ignoring of the admonition born of this
prevision, is always necessary before negligence can be held to exist.

We are convinced that the incident, tragic though it was in light of the number
of persons killed and seriously injured, was an accident and not an intentional felony.
It is significant to note that there is no shred of evidence that GLENN had an axe to
grind against the police trainees that would drive him into deliberately hitting them
with intent to kill.

First, as testified to by prosecution rebuttal witness Danilo Olarita, the place

of the incident was "very dark," as there was no moon. And according to
PAGASA’s observed weather report within the vicinity of Cagayan de Oro City
covering a radius of 50 kilometers, at the time the event took place, the sky was
overcast, i.e., there was absolutely no break in the thick clouds covering the
celestial dome globe; hence, there was no way for the moon and stars to be seen.
Neither were there lampposts that illuminated the highway.

Second, the jogging trainees and the rear guards were all wearing black T-
shirts, black short pants, and black and green combat shoes, which made them
hard to make out on that dark and cloudy night. The rear guards had neither
reflectorized vests or gloves nor flashlights in giving hand signals.

Third, GLENN was driving on the proper side of the road, the right lane. On
the other hand, the jogging trainees were occupying the wrong lane, the same
lane as Glenn’s vehicle was traversing. Worse, they were facing the same direction
as Glenn’s truck such that their backs were turned towards the oncoming vehicles
from behind.

Fourth, no convincing evidence was presented to rebut Glenn’s testimony

that he had been momentarily blinded by the very bright and glaring lights of the
oncoming vehicle at the opposite direction as his truck rounded the curve. He
must have been still reeling from the blinding effect of the lights coming from the
other vehicle when he plowed into the group of police trainees.

Indeed, as pointed out by appellant, instinct tells one “to stop or swerve to a
safe place the moment he sees a cow, dog, or cat on the road, in order to avoid
bumping or killing the same"; and more so if the one on the road is a person. It
would therefore be inconceivable for GLENN, then a young college graduate with
a pregnant wife and three very young children who were dependent on him for
support, to have deliberately hit the group with his truck.

Glenn’s offense is in failing to apply the brakes, or to swerve his vehicle to the left
or to a safe place the movement he heard and felt the first bumping thuds. Had he done
so, many trainees would have been spared.
 Thus, GLENN showed only an inexcusable lack of precaution.

Article 365 of the Revised Penal Code states that reckless imprudence consists in
voluntarily, but without malice, doing or failing to do an act from which material
damage results by reason of inexcusable lack of precaution on the part of the person
performing or failing to perform such act, taking into consideration (1) his employment
or occupation; (2) his degree of intelligence; (4) his physical condition; and (3) other
circumstances regarding persons, time and place.

GLENN, being then a young college graduate and an experienced driver, should
have known to apply the brakes or swerve to a safe place immediately upon hearing
the first bumping thuds to avoid further hitting the other trainees. By his own
testimony, it was established that the road was slippery and slightly going downward;
and, worse, the place of the incident was foggy and dark. He should have observed due
care in accordance with the conduct of a reasonably prudent man, such as by slackening
his speed, applying his brakes, or turning to the left side even if it would mean entering
the opposite lane (there being no evidence that a vehicle was coming from the opposite
direction). It is highly probable that he was driving at high speed at the time. And even
if he was driving within the speed limits, this did not mean that he was exercising due
care under the existing circumstances and conditions at the time.

Considering that the incident was not a product of a malicious intent but rather the
result of a single act of reckless driving, GLENN should be held guilty of the complex
crime of reckless imprudence resulting in multiple homicide with serious physical
injuries and less serious physical injuries.
 5. Evelyn Acuna vs. Rodolfo A. Alventara, Sheriff IV, RTC, Br.50, Villasis, Pangasinan
(A.M. No. 01-1463, March 20, 2001)

Facts:

 A writ was issued on the two flatboats of herein complainant Acuña. In

implementing the writ, respondent sheriff had failed to take the necessary
precautions in protecting the attached property of complainant. Respondent
entrusted the flatboats to a relative of plaintiff Ocampo in Civil Case No. V-0413
("Mrs. Gloria R. Ocampo v. Mrs. Evelyn Acuña") under whose care one of the
flatboats submerged since the Coast Guard refused to accept such custody without
a court order.
 Sometime in May, 1998, after being informed that one of the flatboats had sunk,
he asked for a court order to have the Philippine Coast Guard take possession of
the flatboats. The court directed accordingly. Respondent implemented the order
of the trial court, by hiring men at his own expense to lift the submerged flatboat
and by depositing the two flatboats with the Philippine Coast Guard in Sual,
Pangasinan.
 On 18 September 1998, respondent received a request from the Philippine Coast
Guard to transfer the flatboats to a safer place to prevent them from further
deteriorating. Before he could act on the request, however, typhoons "Gading,"
"Iliang" and "Loleng" struck the place and destroyed the flatboats.
 The case was referred by the Court to the Office of the Court Administrator
("OCA"). OCA recommended that respondent be FINED in the amount of
P5,000.00 for negligence in the performance of his duties.

Issue:

Whether or not the sheriff was guilty of negligence.

Ruling:

Yes, the sheriff was guilty of negligence.

In Tantingco v. Aguilar (81 SCRA 599, 604) this Court held that: "‘Having taken
possession of the property under the writ of attachment, it was respondent’s (sheriff)
duty to protect the property from damages or loss. The respondent was bound to
exercise ordinary and reasonable care for the preservation of the properties.

In this case, the refusal of the Philippine Coast Guard to initially take custody of
the flatboats should have prompted him to forthwith ask the trial court for an order to
have the custody of the flatboats transferred to the Philippine Coast Guard. He delayed
in seeking for such a court order.

However, while respondent failed to thusly implement the writ of preliminary

attachment and to safekeep the property in his custody, it would appear that he exerted
efforts to protect the flatboats. The eventual deterioration and loss of the boats had, in
fact, been caused by calamities beyond his control.

Given the circumstances, by and large extant from the records of the case, the Court
deems it appropriate to impose on respondent a fine but on the reduced amount of from
P5,000.00 recommended by the OCA to P3,000.00.
 6. Belgian Overseas Chartering and Shipping M.V., et.al. vs. Phil. Insurance Co., In.,
GR No. 14133, June 5, 2002

Facts:

 On June 13, 1990, CMC Trading A.G. shipped on board the M/V 'Anangel Sky' at
Hamburg, Germany 242 coils of various Prime Cold Rolled Steel sheets for
transportation to Manila consigned to the Philippine Steel Trading Corporation.
On July 28, 1990, M/V Anangel Sky arrived at the port of Manila and, within the
subsequent days, discharged the subject cargo. Four (4) coils were found to be in
bad order. Finding the four (4) coils in their damaged state to be unfit for the
intended purpose, the consignee Philippine Steel Trading Corporation declared
the same as total loss.
 Petitioners refused to submit to the consignee's claim. Consequently, respondent
paid the consignee and was subrogated to the latter's rights. Subsequently,
respondent instituted this complaint for recovery of the amount paid by them, to
the consignee as insured.
 Petitioners imputed that the damage and/or loss was due to pre-shipment damage.
In addition thereto, they argued that their liability, if there be any, should not
exceed the limitations of liability provided for in the bill of lading and other
pertinent laws. Finally, they averred that, in any event, they exercised due
diligence and foresight required by law to prevent any damage/loss to said
shipment.
 RTC dismissed the Complaint because respondent had failed to prove its claims.
In reversing the trial court, the CA ruled that petitioners were liable for the loss
or the damage of the goods shipped, because they had failed to overcome the
presumption of negligence imposed on common carriers.

Issue:

Whether or not a notation in the bill of lading at the time of loading is sufficient
to show pre-shipment damage and to exempt herein defendants from liability.

Ruling:

No, it is not sufficient.

Mere proof of delivery of the goods in good order to a common carrier and of their
arrival in bad order at their destination constitutes a prima facie case of fault or
negligence against the carrier. If no adequate explanation is given as to how the
deterioration, the loss or the destruction of the goods happened, the transporter shall
be held responsible.

In this case, petitioners failed to rebut the prima facie presumption of negligence
in the case at bar. True, the words "metal envelopes rust stained and slightly dented"
were noted on the Bill of Lading; however, there is no showing that petitioners exercised
due diligence to forestall or lessen the loss. Having been in the service for several years,
the master of the vessel should have known at the outset that metal envelopes in the
said state would eventually deteriorate when not properly stored while in the transit.
Equipped with the proper knowledge of the nature of steel sheets in coils and of the
proper way of transporting them, the master of the vessel and his crew should have
undertake precautionary measures to avoid possible deterioration of the cargo. But
none of these measures was taken. Having failed to discharge the burden of proving
that they have exercised the extraordinary diligence required by law, petitioners
cannot now escape liability for the damage to the 4 coils.

Herein, (1) as stated in the bill of lading petitioners received the subject shipment
in good order and condition in Germany;
(2) prior to the unloading of the cargo, an inspection report prepared and signed
by representative of both parties showed the steel bonds, the metal envelopes
rust-strained and heavily buckled and the contents thereof exposed and rust;
(3) Bad order tally sheet stated that the 4 coils were in bad order and condition;
(4) certificate of analysis stated that based on the sample submitted and tested, the
steel sheets found in bad order were wet with fresh water and
(5) petitioners in their letter addressed to the Philippine Steel Coating Inc., they
admitted that they were aware of the condition of the 4 coil found in bad order
and condition.
All these conclusively prove the fact of shipment in good order and condition and
the consequent damage to the 4 coils while in the possession of the petitioner, who
notably failed to explain why.
 7. ABROGAR vs. COSMOS BOTTLING COMPANY and INTERGAMES INC.
G.R. No. 064749 March 15, 2017

Facts:
This case involves a claim for damages arising from the negligence causing the
death of a participant in an organized marathon bumped by a passenger jeepney on the
route of the race. The issues revolve on whether the organizer and the sponsor of the
marathon were guilty of negligence, and, if so, was their negligence the proximate cause
of the death of the participant; on whether the negligence of the driver of the passenger
jeepney was an efficient intervening cause; on whether the doctrine of assumption of
risk was applicable to the fatality; and on whether the heirs of the fatality can recover
damages for loss of earning capacity of the latter who, being then a minor, had no
gainful employment.
In the RTC decision dated May 10, 1991, judgment was rendered in favor of
plaintiffs-spouses Romulo Abrogar and Erlinda Abrogar and against defendants Cosmos
Bottling Company, Inc. and Intergames, Inc., ordering both defendants, jointly and
severally, to pay and deliver to the plaintiffs the amounts of Twenty Eight Thousand
Sixty One Pesos and Sixty Three Centavos (P28,061.63) as actual damages; One
Hundred Thousand Pesos (P100,000.00) as moral damages; Fifty Thousand Pesos
(P50,000.00) as exemplary damages and Ten Percent (10%) of the total amount of One
Hundred Seventy Eight Thousand Sixty One Pesos and Sixty Three Centavos
(P178,061,63) or Seventeen Thousand Eight Hundred Six Pesos and Sixteen Centavos
(P17,806.16) as attorney's fees. On the cross-claim of defendant Cosmos Bottling
Company, Inc., defendant Intergames, Inc, is hereby ordered to reimburse to the
former any and all amounts which may be recovered by the plaintiffs from it by virtue
of this Decision.
The RTC observed that the safeguards allegedly instituted by Intergames in
conducting the marathon had fallen short of the yardstick to satisfy the requirements
of due diligence as called for by and appropriate under the circumstances; that the
accident had happened because of inadequate preparation and Intergames' failure to
exercise due diligence; that the respondents could not be excused from liability by
hiding behind the waiver executed by Rommel and the permission given to him by his
parents because the waiver could only be effective for risks inherent in the marathon,
such as stumbling, heat stroke, heart attack during the race, severe exhaustion and
similar occurrences; that the liability of the respondents towards the participants and
third persons was solidary, because Cosmos, the sponsor of the event, had been the
principal mover of the event, and, as such, had derived benefits from the marathon that
in turn had carried responsibilities towards the participants and the public; that the
respondents' agreement to free Cosmos from any liability had been an agreement
binding only between them, and did not bind third persons; and that Cosmos had a
cause of action against Intergames for whatever could be recovered by the petitioners
from Cosmos.
All parties appealed to the CA. The petitioners contended that the RTC erred in
not awarding damages for loss of earning capacity on the part of Rommel for the reason
that such damages were not recoverable due to Rommel not yet having finished his
schooling; and that it would be premature to award such damages upon the assumption
that he would finish college and be gainfully employed. The CA reduced the issues to
four, namely:

1. Whether or not appellant Intergames were negligent in its conduct of the 1st Pop
Cola Junior Marathon" held on June 15, 1980 and if so, whether its negligence was the
proximate cause of the death of Rommel Abrogar.

2. Whether or not appellant Cosmos can be held jointly and solidarity liable with
appellant Intergames for the death of Rommel Abrogar, assuming that appellant
Intergames is found to have been negligent in the conduct of the Pop Cola marathon
and such negligence was the proximate cause of the death of Rommel Abrogar.

3. Whether or not the appellants Abrogar are entitled to be compensated for the "loss
of earning capacity" of their son Rommel.

4. Whether or not the appellants Abrogar are entitled to the actual, moral, and
exemplary damages granted to them by the Trial Court.

In its assailed judgment on March 10, 2004 and in view of the fact that both
defendants are not liable for the death of Rommel Abrogar, appellants-spouses are not
entitled to actual, moral, exemplary damages as well as for the "loss of earning capacity"
of their son. The third and fourth issues are thus moot and academic. UPON THE VIEW
OF THIS CASE, THUS, the judgment appealed from must be, as it hereby is,
REVERSED and SET ASIDE and another entered DISMISSING the complaint a quo.
The appellants shall bear their respective costs.

Issues:
1. Whether or not the CA gravely erred in reversing the RTC Decision, (and) in holding
that respondent Intergames was not negligent considering that:
A. Respondent Intergames failed to exercise the diligence of a good father of the family
in the conduct of the marathon in that it did not block off from traffic the marathon
route; and

B. Respondent Intergames' preparations for the race, including the number of marshal
during the marathon, were glaringly inadequate to prevent the happening of the injury
to its participants.

2. Whether or not the CA gravely erred in reversing the RTC Decision, (and) in holding
that the doctrine of assumption of risk finds application to the case at bar even though
getting hit or run over by a vehicle is not an inherent risk in a marathon race. Even
assuming arguendo that deceased Abrogar made such waiver as claimed, still there can
be no valid waiver of one's right to life and limb for being against public policy.

3. Whether or not the CA gravely erred in reversing the RTC Decision (and) in
absolving respondent Cosmos from liability to petitioners on the sole ground that
respondent Cosmos' contract with respondent Intergames contained a stipulation
exempting the former from liability.

4. Whether or not the CA gravely erred in reversing the RTC Decision and
consequently holding respondents free from liability, (and) in not awarding petitioners
with actual, moral and exemplary damages for the death of their child, Rommel
Abrogar.

Held:

1. Yes. Negligence is the failure to observe for the protection of the interests of another
person that degree of care, precaution, and vigilance which the circumstances justly
demand, whereby such other person suffers injury. Under Article 1173 of the Civil
Code, it consists of the "omission of that diligence which is required by the nature of
the obligation and corresponds with the circumstances of the person, of the time and
of the place. The Civil Code makes liability for negligence clear under Article 2176, and
Article 20.

2. Yes. The doctrine of assumption of risk means that one who voluntarily exposes
himself to an obvious, known and appreciated danger assumes the risk of injury that
may result therefrom. It rests on the fact that the person injured has consented to
relieve the defendant of an obligation of conduct toward him and to take his chance of
injury from a known risk, and whether the former has exercised proper caution or not
is immaterial. In other words, it is based on voluntary consent, express or implied, to
accept danger of a known and appreciated risk; it may sometimes include acceptance
of risk arising from the defendant's negligence, but one does not ordinarily assume risk
of any negligence which he does not know and appreciate. As a defense in negligence
cases, therefore, the doctrine requires the concurrence of three elements, namely; the
plaintiff must know that the risk is present;he must further understand its nature; and
his choice to incur it must be free and voluntary. Neither was the waiver by Rommel,
then a minor, an effective form of express or implied consent in the context of the
doctrine of assumption of risk. There is ample authority, cited in Prosser, to the effect
that a person does not comprehend the risk involved in a known situation because of
his youth, or lack of information or experience, and thus will not be taken to consent
to assume the risk. Clearly, the doctrine of assumption of risk does not apply to bar
recovery by the petitioners.

3. No. The sponsorship of the marathon by Cosmos was limited to financing the race.
Cosmos did nothing beyond that, and did not involve itself at all in the preparations for
the actual conduct of the race. This verity was expressly confirmed by Intergames,
through Castro, Jr.

4. Yes. Art. 2202. In crimes and quasi-delicts, the defendant shall be liable for all
damages which are the natural and probable consequences of the act or omission
complained of. It is not necessary that such damages have been foreseen or could have
reasonably been foreseen by the defendant.