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FINALS REVIEWER TORT AND QUASI-DELICT I. THE CONCEPTUAL FRAMEWORK A. CONCEPT OF A TORT
DEFINITIONTort consists in the violation of a right given or the omission of a duty imposed by law; a breach of legal duty (Naguiat v NLRC). o Taken from Words and Phrases, Permanent Ed. and Bouviers Law Dictionary o SIR SAYS: This definition is considered too broad because it would allow any breach of a legal duty, e.g., statutory obligations or contractual obligations, to comprise a tort. This definition is only obiter. Tort is a wrong, a tortuous act which has been defined as the commission or omission of an act by one, without right, whereby another receives some injury, directly or indirectly, in person, property or reputation! Liability in tort is not precluded by the fact that defendant acted without evil intent (Vinzons-Chato v Fortune) o Taken from Am Jur 2d 1. PROSSER & KEETON a. Broadly speaking, a tort is a civil wrong, other than a breach of contract. It might be possible to define a tort by enumerating what it is not: it is not crime, it is not breach of contract. i. DEFINITIONS; COMMON LAW; TORT.a breach of duty (other than a contractual or quasi-contractual duty) which gives rise to an action for damages; an unlawful violation of private right (not created by contract) which gives rise to an action for damages; a private or civil wrong or injury etc. ii. Sir John Salmond on Torts.there is no such thing as a law of Tort, but only a law of particular unconnected torts, i.e., a set of pigeon-holes, each bearing a name, into which the act or omission of the defendant must be fitted before the law will take cognizance of it and afford a remedy. b. CHARACTERISTICS; TORT.a wrong is called a tort only if the harm which has resulted is (1) capable of being compensated in an action of law for damages; consists of (2) a breach of duties fixed by the law itself, without regard to parties consent to assume or evade them; and liability in tort is based upon (3) the relations of persons with others, which may arise generally with large groups or classes of persons OR singly with an individual. c. FUNCTION; TORT.to allocate OR adjust the losses arising out of human activities (various and ever-increasing clashes of activities of persons living in a common society), and to afford compensation for injuries sustained by one person as the result of the conduct of another. i. ALLOCATE, ADJUST, COMPENSATE losses resulting from complexity of modern life ii. Independent civil action is in keeping with the spirit of individual initiative and the intense awareness of ones civil rights

d. PRINCIPLES; TORT.(1) unreasonable interference with the interests of others must be limited while striking a balance between claims to protection and claims to freedom of action; (2) harm is judged by an objective, disinterested, and social standard, which looks primarily at social consequences of an individuals act, i.e., unreasonable or socially harmful from the view of the whole community. i. Intentional tort.includes assault, battery, false imprisonment, defamation, invasion of privacy, and interference of property ii. Negligence.voluntary acts of omissions which result in injury to others without intention to cause the same iii. Strict liability.person is made liable independent of fault or negligence upon submission of proof of certain facts 2. SANGCO a. Tort provisions found in Spanish and French laws based on Roman Law or lexaquilaunder the terms quasi ex delicto, culpa extra-contractual, and culpa aquiliana. i. REASON; NO TORT BUT QUASI-DELICT".members of the Code Comission believed it would not be accurate because tort in common law is BROADER since it includes intentional criminal acts, such as assault and battery. ii. REASON; QUASI-DELICT SYSTEM BETTER THAN TORTS. scope of civil wrongs has been greatly BROADENED; it has become much more supple and adequate than Anglo-American law. 1. Catch-all provisions (19-21 CC).introduces malice as an element of commission of torts; includes the self-same intentional criminal acts in its coverage 2. Includes civil liability arising from criminal liability 3. Allows claiming damages from an injury that results in death (NOT allowed in common law countries)* 4. Redressing private wrongs at public expense; depending upon public prosecutor for recovery of civil damages* b. DEFINITION; RP; TORT.essentially consists of a violation of a right given or omission of statutory duty imposed by law (Naguiat v NLRC) c. FUNCTION; TORT LAW. i. Provide a peaceful means for adjusting the rights of parties who may otherwise take the law into their own hands ii. Deter wrongful conduct iii. Encourage socially responsible behaviour iv. Restore injured parties to their original condition, insofar as the law can do this, by compensating them for their injury d. KINDS; SPANISH LAW; TORT.* i. Culpa substantive.arises in an obligation between persons not formerly bound by any other obligation ii. Culpa independent.incident in the performance of an obligation which already existed, which cannot be presumed to exist without the other; increases the liability from already existing obligation

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*From article TORTS UNDER THE SPANISH LAW by Eutiquiano Garcia; NOTE.He discussed quasi-delicts under the banner private wrongs or torts and concluded that no tort actions arise out of contract under Spanish law and that torts exist under a different name in Spanish law, though it involves a different system and condition, it still provides an ample remedy.

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B. CONCEPT OF A QUASI-DELICT
Article 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 there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. Article 2177 Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the same act or omission of the defendant. CONSTRUCTION OF NCC 2176first sentence: refers to all civil liabilities:: second sentence: limits QD OLD CIVIL CODE; GARCIA DOCTRINEA quasi-delict is a separate legal institution under the CC with a substantivity all its own, and individuality that is entirely apart and independent from a delict or a crimea distinction exists bet civil liability arising from crime AND responsibility for QD or culpa extra contractual. Upon this principle and the wording and spirit of 2176 (1903) CC, the primary and direct responsibility of employers may be safely anchored. The same negligent act causing damage may produce civil liability arising from a crime under RPC or an action for QD under NCC. Plaintiffs are free to choose which course to take (Barredo v Garcia). 1. If it should be held that 1902-1910 CC apply only to negligence not punishable by law, culpa aquiliana would have very little application in real life. Death or injury to persons and damage to property through any degree of negligence, even the slightest, would have to be indemnified only thru civ liability arising from a crime. The spirit that giveth life rather than that which is literal that killeth the intent of the lawmaker 2. There are numerous cases of crim negligence which cant be shown beyond reasonable doubt but can be proved by preponderance of evidence 3. Otherwise, there is only 1 way to make defendants liability effectivesue driver, exhaust his property first. This would compel plaintiff to follow a devious and cumbersome method of obtaining relief. BUT there is a more expeditious wayprimary and direct responsibility of defendant under NCC 2180 4. It is common practice to seek damages only by virtue of civil responsibility arising from a crime, forgetting that there is another remedy under NCC 2176. It is time to restore thatancient, additional, adequate and efficacious redress AMENDMENTNCC enacted after Garcia removed the phrase not punishable law, thereby making it clear that culpa aquiliana includes acts which are criminal in character or in violation of the penal law, whether voluntary or negligent. (Elcano v Hill)

F AULT OR NEGLIGENCE NCC 2176, where it refers to fault or negligence covers not only acts not punishable by law but also acts criminal in character, whether intentional and voluntary/negligent. (Elcano v Hill) E XAMPLE : Acquittal (i.e. lack of intent to kill, couple with mistake) from an accusation of criminal negligence, whether on reasonable doubt or not, shall NOT be a bar to subsequent civil action (Elcano v Hill). XPN: where court declared that the fact from which the civil action arose didnt exist (Andamo v IAC) o SIR SAYS: Lack of intent to kill coupled with MISTAKE! negligent, therefore, no need to characterize NCC 2176 as intentional! OBITER. HOWEVER, in Baksh v CA, NCC 2176 is limited to negligent acts or omissions and excludes the notion of willfulness or intent. QD is a civil law concept while torts in a common law concept. Torts is much broader than culpa aquiliana because it includes not only negligence but also intentional criminal acts such as assault and battery, false imprisonment and deceit o How to reconcile? SIR SAYS: Davide is correct to a certain extent that intentdeliberate intent to harm: crime:: intent to not meet a standard: negligence/QD. Problem: there can be a crime and QD in the same act. But NCC 2177 compares negligence in crime and QD and seems to refer only to civil negligence. NOTE: 2176 CC covers intentional acts in order to justify application of 2180 CC to vicarious liability of parents and employers, but despite the supposed stop-gap created in 221 FC that holds parents liable for intentional acts of children AND Justice Davides decision to limit 2176 CC to negligent acts or omissions, excluding the notion of willingness or intent (Baksh v CA), CASIS says that intentional acts remain part of the definition of quasi-delict under 2176 CC. EFFECT OF ELCANO; RELATION TO NCC 2177A separate civil action lies against the offender in a criminal act, WON criminally prosecuted and found guilty or acquitted, provided that the offended party is not allowed, if he is actually charged also criminally, to recover damages on both scores and would be entitled in such eventuality only to the bigger award of the two, assuming the awards made in the two cases vary. (Elcano v Hill) I NDEPENDENT CIVIL ACTION The civil action which should be suspended after the criminal action has been instituted is that arising from the criminal offense, not the civil action based on QD. Wrongdoer could have been prosecuted and convicted and for which he could still be sued for his civil liability arising from crime. Liability being predicated on quasi-delict the civil case may proceed as a separate and independent civil action (Cinco v Canonoy). NOT ONLY PERSONS, BUT ALSO PROPERTYThe concept of QD is so broad that it includes not only injuries to persons but also damage to property. It makes no distinction bet damage to persons and damage to property. Damage is used in 2 concepts:1) harminjuries to person and property (e.g. NCC 2191(2)holds proprietors responsible for damages caused by excessive smoke which may be harmful to persons or property) 2)reparation for harm done (Cinco v Canonoy) o SIR SAYS: Rule is correct but wrong example. NCC 2191 (2) is not a QD! It is tort on strict liability L IABILITY OF A MANUFACTURER OR SELLER OF INJURY - CAUSING PRODUCTS CA concluded that the cause of action is founded on QD since allegations in complaint

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made reference to reckless and negligent manufacture of adulterated food items intended to be sold for public consumption. Vendees remedies against vendor WRT to warranties against hidden defects of or encumbrances upon the thing sold: NCC 1567, annulment of contract upon proof of error or fraud, and QD. Liability for QD may still exist despite the presence of contractual relations. GR: Pre-existing contract bet parties bar the applicability of law on QD XPN: the act which breaks the contract may also be a QD (Coca-Cola Bottlers v CA). SIR SAYS: Faulty decision. Doesnt make sense. Not a QD but still liable for QD. Theres a liability but you cant call it QD, call it something else Crime affects public interest corrects the criminal act

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C. ELEMENTS OF A QUASI-DELICT & TORT

ANDAMO V IAC; PNR V BRUNTY; GREGORIO V CA(1) the damages suffered by plaintiff; (2) the fault or negligence of the defendant or some other person to whose act he must respond; (3) the connection of cause and effect between the fault or negligence and the damages incurred; and (4) that there must be no preexisting contractual relation between the parties. E XAMPLE : In Andamos complaint, it is alleged that the waterpaths and contrivances built by Missionaries of Our Lady of La Salette Inc. inundated their land. Therefore, there is presence of damage to Andamo, the act or omission of respondent supposedly constituting fault or negligence, and the causal connection bet the act and damge, with no pre-existing contractual obligation bet the parties make a clear case of QD SIR SAYS: Andamo legitimizes Elcano that QD includes crimes, whether intention and voluntary or negligentbut flooding of neighbors property was negligent or unintentional so no need to discuss negligent acts! obiter. Sirs personal view is that NCC 2176 should be limited only to negligent acts GARCIA V SALVADOR.elements of actionable conduct are: 1) Duty 2) Breach 3)Injury 4)Proximate causation E XAMPLE : 1) duty: laws and rules(a)clinical lab must be administered, directed and supervised by a licensed physician authorized by Sec of Health, like a pathologist Castros infrequent visits to the clinical lab does not qualify as supervision (b) med tech must be under the supervision of pathologist/licensed physicianGarcia conducted the test w/o supervision of Castro (rubber stamp signature) (c) results of any exam may only be released by physician or authorized rep upon direction of pathologisttest result was released w/o authorization of Castro 2) breach: violation of a statutory duty is negligence. Where the law imposed upon a person the duty to do something his omission or non-performance will render him liable to whoever may be injured thereby. 3) injury: Ranida suffered injuryterminated from service, anxiety from diagnosis; compelled to undergo several more tests 4) proximate causation: all these could have been avoided had the proper safeguards been followed

D.

DISTINGUISH TORT & QUASI-DELICT FROM DELICT

Article 2177. Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the same act or omission of the defendant.

narrower because they punish only if there is a penal law clearly covering them subsidiary liability (employer) primary liability (employer) REMEDIESan act or omission causing damage to another may give rise to 2 separate civil liabilities on the part of the offender. Either may be enforced against the offender, i.e., the choice to proceed between an action under 100 RPC or 2176-2194 CC belongs to the plaintiff who makes known the cause of action in his initiatory pleading or complaint (L.G. Foods Corporation v Pagapong-Agraviador). a. Civil liability ex delicto(crime).employer subsidiarily liable only upon proof of prior conviction of employee b. Independent civil liabilities.employer primarily liable for negligent act of employee subject to the defense of exercise of a good father of the family, without need of proof of conviction OR insolvency i. NOT arising from felony, e.g., culpa contractual, intentional torts, and culpa aquiliana ii. Where the injured party is granted a right to file an action independent and distinct from the criminal action RECOVERY OF DAMAGEA separate civil action lies against the offender in a criminal act, whether or not he is criminally prosecuted and found guilty or acquitted, PROVIDED that the offended party is not allowed, (if the tortfeasor is actually charged also criminally), to recover damages on both scores, and would be entitled in such eventuality only to the bigger award of the two, assuming the awards made in 2 cases vary. (Andamo v IAC) ACQUITTALAcquittal or conviction in a criminal case is entirely irrelevant in the civil case UNLESS in the event of an acquittal where the court has declared that the fact from which the civil action rose did not exist, in which case extinction of criminal liability would carry extinction of civil liability. (Andamo v IAC) P ROSSER & K EETON a. CRIME.an offense against the public at large; action commenced by the STATE i. PURPOSE; CRIME.to protect and vindicate the interests of the public as a whole by punishment or elimination of the offender from society, either permanently or for a limited time ii. WRT RESTITUTION; CRIME.may be a stated condition of probation of convicted offender, but a criminal prosecution is not concerned directly with compensation of injured individual b. TORT.an offense against a private individual; action commenced by the PRIVATE PARTY (State can never sue in tort in its political or governmental capacity) i. PURPOSE; TORT.to compensate for damage suffered at the expense of the wrongdoer

QD private concern only repairs damage as means of indemnification include all acts in which ANY kind of fault or negligence intervenes

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ii. WRT RESTITUTION; TORT.successful suit allows the private party to receive a judgment for a sum of money, enforceable against the defendant

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E. DISTINGUISH TORT & QUASI-DELICT FROM BREACH OF CONTRACT

CULPA; DEFINIEDCulpa, or negligence, may be understood in two diff senses: (1) Culpa aquiliana: wrongful or negligent act or omission which creates a vinculum juris and gives rise to an obligation bet two persons not formally bound by any other obligation (2) Culpa contractual: fault or negligence incident in the performance of an obligation which already existed and which increases the liability from such already existing obligation (Batal v San Pedro) COMPARISON Liability of employer Employers defense QD Presumptive liability Due care in selection and supervision Created by wrongful or negligent act/omission Defendants fault or negligence (e.g. driver of common carriernot a party to the contract of carriage) When theres physical injuries (NCC 2219 (2)) BOC Direct and immediate No same defense respondeat superior Not applicable: proximate cause Independent of breach of obligation Presumption of negligence (.e.g common carrier)

Vinculum juris Plaintiff needs to prove

GR: not recoverable; not one of the items under NCC 2219; XPN: if passenger dies OR theres fraud/bf (Calalas v CA) Exemplary Gross negligence as to Act that is wanton, fraudulent, damages amount to malice (NCC reckless, oppressive or 2231) malevolent (NCC 2232) *** NOTE: SIR SAYS: you can still use the defense of due diligence, but just not bonus paterfamilias in the selection and supervision of employees GR AND XPN While it may be true that the pre-existing contract between the parties may bar the applicability of a quasi-delict as a GR, the liability may itself be deemed to arise from a quasi-delict when the act which breaks the contract is also a quasi-delict. Liability for quasi-delict may exist despite the presence of contractual relations (CocaCola Bottlers v CA). Altho the relation is contractual nevertheless the act that breaks the contract may be also a tort (Air France v Carrascoso) NOTE: In this case, SC used NCC 20, not NCC 2176

Moral damages

Liability for tort may arise even under a contract, where tort is that which breaches the contract, thereby allowing the rules on tort to apply. (LRTA v Navidad) A contractual obligation may be breached by tort and when the same act or omission causes the injury, resulting in culpa contractual and aquiliana (Light Rail Transit v Navidad). In any case, a pre-existing contractual relationship does not preclude existence of culpa aquiliana (Syquia v CA). C ONCENTRIC CIRCLES The field of non-contractual obligation is much broader than that of contractual obligation, comprising, as it does, the whole extent of juridical human relations. These two fields, figuratively speaking, concentric; that is to say, the mere fact that a person is bound to another by contract does not relieve him from extra-contractual liability to such person. (Cangco v CA) L IMITATIONS TO T HE ACT THAT BREAKS THE CONTRACT 1) I N BF OR VIOLATES NCC 21 PSBA attempted to temper Air Frances pronouncement that the act that breaks a contract is a tort by including the additional element of bad faith + NCC 21. However, it does not use any provisions WRT QD to resolve the issue, so whatever rule it laid down is only obiter dictum. 2) QD SHOULD BE INDEPENDENT OF BOC Damage claim is [NOT] predicated solely on their contractual relationship; without such agreement, the act or omission complained of [CAN] by itself be held to stand as a separate cause of action or as an independent actionable tort. (Far East v CA) SIR SAYS: In short, act is a QD, absent the contract E XAMPLE independent: wrongful expulsion from 1st class seat (Air France v Carrasco):: not independent: dishonored credit card (Far East v CA) PRESUMPTION OF NEGLIGENCE In culpa contractual, once the plaintiff proves a breach of contract, there is a presumption that the defendant was at fault or negligent. The burden is on the defendant to prove that he was not at fault or negligent. In culpa aquiliana, the plaintiff has the burden of proving that the defendant was negligent. (Consolidated Bank v CA) The premise for employers liability is negligence or fault on the part of the employee. (LRTA v Navidad) In culpa contractual, the mere proof of existence of the contract and the failure of its compliance justify prima facie a corresponding right of relief. The effect of every infraction is to create a new duty, i.e. to make recompense to the one who is injured UNLESS he can show proof of extenuating circumstances or attendance of a fortuitous event. (FGU Insurance v Sarmiento). DEFENSE: The defense of exercising the required diligence in the selection and supervision of employees is not a complete defense in culpa contractual, unlike in culpa aquiliana. (Consolidated Bank v CA) E XAMPLES OF BOC P LACEMENT OF MARKINGS Sps Batal in carrying out their contractual obligations, failed to exercise the requisite diligence in the placement of the markings for the concrete perimeter fence that was later constructed. The placement of the markings had been done solely by Frank, who is not a geodetic engr and unsupervised by his wife. Sps Batal also gave an assurance that Sps San Pedro could proceed with the construction of the perimeter fence so the latter relied on the purported accuracy of the placement of the monuments. Bec of the encroachment, the Sps San Pedro had to demolish and reconstruct the

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fence and thus suffered damages. Being guilty of a breach of their contract, Sps Batal are liable for damages (Batal v San Pedro) SIR ASKS : If youre the lawyer, would you suggest an action based on QD to get moral damages? No. QD cannot exist independently of the contract ACADEMIC INSTITUTIONSWhen an academic institution accepts students for enrollment, there is established a contract between them, resulting in bilateral obligations which both parties are bound to comply with. Necessarily, the school must ensure that adequate steps are taken to maintain peace and order within the campus premises. (PSBA v CA) o NOTEBut in the case at bar, the school is not liable under QD because there is a contractual relation AND damage was caused by assailants, who were outsiders, not students of the school so NCC 2180 does not apply. A contractual relation is a condition sine qua non to schools liability. Negligence of school cannot exist independently of the contract unless negligence occurs under NCC 21. Should the act that breaches contract be done in bad faith and violate NCC 21 then it may be an act that is a quasidelict. CONTRACT OF CARRIAGE o MEANS OF ENTERING AND LEAVINGThe contract to transport carries with it the duty to provide for safe means of entering and leaving the train (Cangco v Mla Road) o RIGHT AGAINST DISCOURTEOUS CONDUCTright to be treated by the carrier's employees with kindness, respect, courtesy and due consideration. They are entitled to be protected against personal misconduct, injurious language, indignities and abuses from such employees. (Air France v Carrascoso). o EXTENT OF SAFETYthe duty of a common carrier to provide safety to its passengers so obligates it not only during the course of the trip but for so long as the passengers are within its premises and where they ought to be in pursuance to the contract of carriage. (LRT v Navidad) " A carrier may choose to hire its own employees or hire an independent contractor. In either case, the common carrier is not relieved of its responsibilities under the contract of carriage. " Common carrier is liable for death of or injury to passengers through (1) negligence or willful acts of its employees or 2) negligence or willful acts of passengers or strangers if the common carriers employees through the exercise of due diligence could have prevented or stopped the act or omission. In case of death or injury, carrier is presumed to be at fault or been negligent unless it is proven that injury is due to an unforeseen event or force majeure. IN BOC; THE FF ARE NOT APPLICABLE DOCTRINE OF PROXIMATE CAUSEapplicable only in actions for QD, not in actions involving BOC. The doctrine is a device for imputing liability to a person where there is no relation between him and another party. In such a case, the obligation is created by law itself. But, where there is a pre-existing contractual relation between the parties, it is the parties themselves who create the obligation, and the function of law is merely to regulate the relation thus created. (Calalas v CA)

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EXAMPLEMitsubishi car that bumped the jeep but the jeep was improperly parked and placed an extension seat, placing victim in greater peril to which other passengers were not exposed (Calalas) CONTRIBUTORY NEGLIGENCE; DOCTRINE OF LAST CLEAR CHANCEwould not exonerate defendant from his liability but merely serves to reduce the damages to be recovered by plaintiff (Consolidated Bank v CA) MORAL DAMAGES BOC cannot be considered included in the term, analogous cases used in NCC 2219, not only because NCC 2220 specially provides for the damages that are caused by BOC, but because the definition of QD in NCC 2176 express excludes the cases where there is a preexisting contractual relation between the parties (Fores v Miranda) M ALICE OR BAD FAITH implies a conscious and intentional design to do a wrongful act for a dishonest purpose or moral obliquity. It is different from the negative idea of negligence in that malice or bad faith contemplates a state of mind affirmatively operating with furtive design or ill will (Far East v CA) Mere carelessness does not per se constitute or justify an inference of malice or bad faith. Breach of plaintiffs confidence is not regarded as BOC in bad faith. (Fores v Miranda) Application of NCC 21 can be warranted only when the defendants disregard of his contractual obligation is so deliberate as to appropriate a degree of misconduct certainly no less worse than fraud or bad faith. (Far East v CA)

II. NEGLIGENCE A. CONCEPT OF NEGLIGENCE

Article 1173. The fault or negligence of the obligor consists in the omission of that diligence which is required by the nature of the obligation and corresponds with the circumstances of the persons, of the time and of the place. When negligence shows bad faith, the provisions of Articles 1171 and 2201, paragraph 2, shall apply. If the law or contract does not state the diligence which is to be observed in the performance, that which is expected of a good father of a family shall be required. CONCEPT OF NEGLIGENCE It is the want of care required by circumstances, relative or comparative; and depends on the situation of parties and the degree of care circumstances reasonably require. It is relative or comparative, not an absolute term (PNR v Brunty). A negligent act is an inadvertent act; it may be merely carelessly done from a lack of ordinary prudence and may be one which creates a situation involving an unreasonable risk to another because of the expectable action of the other, a third person, an animal, or a force of nature. A negligent act is one from which an ordinary prudent person in the actor's position, in the same or similar circumstances, would foresee such an appreciable risk of harm to others as to cause him not to do the act OR to do it in a more careful manner (Corinthian v Tanjangco) 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. All that the law requires

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is that it is perpetually compelling upon a person to use that care and diligence expected of sensible men under comparable circumstances (PNR v CA) Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do; or the doing of something which a prudent and reasonable man would not do. It is the want of care required by the circumstances. (Sicam v Jorge) EXAMPLES: It is not just or equitable to relieve a subdivision association of any liability arising from the erection of a perimeter fence which encroached upon another persons lot when, by its very own rules, it imposes its authority over all its members to the end that "no new construction can be started unless the plans are approved by the Association and the appropriate cash bond and preconstruction fees are paid." If supposes inspection is merely a table inspection and approval granted to every member is a mere formality, then the purpose of the rules would be defeated. Compliance therewith would not be mandatory, and sanctions imposed for violations could be disregarded. (Corinthian v Tanjangco) Violation of a statutory duty is negligence. Where the law imposes on a person the duty to do something, his omission or non-performance will render him liable to whomever may be injured thereby (Garcia v Salvador). RAILROAD COMPANIESduty of exercising a reasonable degree of care to avoid injury to persons and property at railroad crossings, which pertains both to the operation of trains and to the maintenance of the crossings. The failure to put a cross bar, or signal light, flagman or switchman or semaphore is evidence of negligence and disregard of the safety of the public, even there is now law or ordinance requiring it, because public safety demands they be installed. (PNR v Brunty) NOTE: RE: TRAINS RIGHT OF WAYIt is true that one driving an automobile must use his faculties of seeing and hearing when nearing a railroad crossing. However, the obligation to bring to a full stop vehicles moving in public highways before traversing any through street only accrues from the time the said through street or crossing is so designated and sign-posted. NEGLIGENCE VIS--VIS FEIn order for a fortuitous event to exempt one from liability, it is necessary that one has committed no negligence or misconduct that may have occasioned the loss (Sicam v Jorge)

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indifference to consequences in so far as other persons may be affected. (IlaoOreta v Ronquillo) SIR SAYS: Common thread= whether act in question is dangerous per se EXAMPLE; NOTORIOUS NEGLIGENCEJumping into the sea, 1.5 miles from the seashore, to recover a 2 peso bill is an open and reckless disregard of ones safety and resulting death is undoubtedly caused by notorious negligence. (Amedo v Rio) EXAMPLE; NOT NOTORIOUS NEGLIGENCE Getting or accepting a free ride on the companys haulage truck could not be gross negligence because no danger or risk was apparent. The violation of the employers prohibition against such ride may be considered merely as possible evidence of negligence, but not negligence per se, since the prohibition has nothing to do with the personal safety of the riders. (Marinduque v Workmens) Dr. Ilao-Oreta had traveled more than twice to the United States where she obtained a fellowship in Reproductive Endocrinology and Infertility. Hence, she was negligent when she scheduled to perform professional service at 2:00 p.m. on April 5, 1999 without considering the time difference between the Philippines and Hawaii. The doctors act did not, however, reflect gross negligence. Petitioner could not have been conscious of any foreseeable danger that may occur since she actually believed that she would make it to the operation that was elective in nature, the only purpose of which was to determine the real cause of infertility and not to treat and cure a life threatening diseasethe situation then did not present any clear and apparent harm or injury that even a careless person may perceive. Her negligence could be partly attributed to human frailty (scheduled procedure when she just got married and was preparing for her honeymooncommon knowledge of excitement that attends it) which rules out its characterization as gross. PROSSER AND KEETON o The amount of care demanded by standard of reasonable conduct must be in proportion to the apparent riskgreater danger~ higher amount of care o Old approach: degree of negligence (degrees of legal fault) ~ degrees of care " slight negligence: failure to use great care " ordinary negligence: failure to use ordinary care " gross negligence: failure to use even slight care o Prevailing rule: no degrees of care/negligence as a matter of law; there are only different amounts of care as a matter of fact o To the extent degrees of negligence survive, the distinction most commonly made are: " SLIGHT NEGLIGENCE: failure to use great care " GROSS NEGLIGENCE: want of even slight care; more than ordinary inadvertence or inattention but less than conscious indifference to the consequences; comparative negligence rule is applied " WILLFUL, WANTON AND RECKLESS: i. quasi intent in between intent to do harm and mere unreasonable risk of harm to another involved in ordinary negligence; extreme departure from ordinary care in a situation where a high degree of danger is apparent

B.

DEGREES OF NEGLIGENCE

NOTORIOUS NEGLIGENCEtantamount to "gross negligencethe want of even slight care and diligence. It is the entire want of care as to raise a presumption that the person in fault is conscious of the probable consequences of carelessness, and is indifferent, or worse, to the danger of injury to person or property of others." The negligence must amount to a reckless disregard of the safety of person or property. (Amedo v Rio) Gross negligence implies a want or absence of or failure to exercise slight care or diligence, or the entire absence of care. It evinces a thoughtless disregard of consequences without exerting any effort to avoid them. It is characterized by want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally with a conscious

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ii. iii. iv. merged w/ gross negligence and take on the same meaning: aggravated form of negligence, differing in quality rather than in degree from ordinary lack of care defense of ordinary contributory negligence of plaintiff doesnt apply willful requirement: breaks down where it is clear from the facts that the defendant, whatever his state of mind, has proceeded in disregard of high degree of danger, either known to him or apparent to a reasonable person in his position; need an object standard

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C. STANDARD OF CONDUCT
Negligence presupposes some uniform standard of behavior (external and objective) in order to make proper allowance for the risk apparent to actor for his capacity to meet it and for circumstances under which he must act; still based on the idea of a reasonable, prudent man.

1.

In general

TEST OF NEGLIGENCE Did the defendant, in doing the alleged negligent act, use that reasonable care and caution, which an ordinarily prudent person would have used in the same situation? If not, he is guilty of negligence. The law adopts the standard supposed to be supplied by the imaginary conduct of the discreet pater familias of the Roman Law. 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: Would 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 about to be pursued. Reasonable foresight of harm, followed by the ignoring of the admonition born of this prevision, is the constitutive act of negligence (Picart v Smith) The proper criterion for determining the existence of negligence: 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 consequence. (Picart v Smith) SIR SAYS: For people with mental incapacity, there is an advantage in holding them under the same standard as an incentive to guardians to take care of them more. Counterarguments1) not all have guardians, where vicarious liability can be charge against 2) we treat children differently so they should be treated differently too. In US, they are held under the standard of ave. mentally challenged in the like situation PROSSER AND KEETON o Negligence: a conduct, not a state of mind; conduct which falls below a standard established by the law for the protection of others against unreasonable risk of harm, where " Risk: danger which is apparent or should be apparent to one in the position of the actor o Essence: behavior which involves unreasonable danger to others o Standard of conduct imposed by law: 1) externalbased on what society demands generally of its members rather than upon the actors personal morality

or individual sense of right and wrong 2) one of conduct, rather than of consequences (wisdom born of the events) 3) risk-benefit analysisbalance: a) risk, in light of social value of interest threatened, and probability and extent of harm VS. value of interest which the actor is seeking to protect and expedience of the course pursuedrelative to the need and the occasion o Negligence distinguished from intent: " Negligenceactor doesnt 1) desire to bring about the consequences which follow 2) know that they are certain to occur or believe they will (merely a risk that would lead a reasonable man to anticipate them and guard against them) " As probability of injury to another becomes greater, his conduct takes on more attributes of intent until it approaches/ becomes indistinguishable from the substantial certainty of harm that underlies intent " Reckless, wanton, willful negligenceintermediate mental states based on recognizably great probability of harm; as if harm were intendedeffect: hybrid bet intent and negligence o Balance: probability and gravity of risk SANGCO o Negligence is want of care required by the circumstances. It is relative or comparative, not an absolute term and its application depends upon the situation of the parties and the degree of care and vigilance which the circumstances reasonably impose o Negligence: conduct or state of mind?difference in emphasis but no conflict gauge first what consequences a person would have foreseen in that situation then how he would have regulated his conduct in the light of these consequences o Negligence distinguished from neglect " Neglect: failure to do it, which can either be intentional or unintentional. " Intentional omission must not be treated as cases of negligence " Unintentional omission: i. bad way of doing a thingpositive action, not an omission ii. law imposes upon a person a duty to do something for which he will be liable in case of failure to carry it outan exception rather than the rule 1. TEST; NEGLIGENCE.Would a prudent man in the position of person negligent foresee harm to person injured as a reasonable consequence of course to be pursued? Law imposes duty to refrain or take precaution against mischievous results and failure to do so constitutes negligence (Picart v Smith). a. Based on light of human experience + facts surrounding particular case b. Law considers reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence and determines liability by that 2. REASONABLE PERSON.personification of a community ideal of reasonable behaviour, determined by the jurys social judgment a. CIRCUMSTANCES.same or similar situation/position as the actor found himself b. PHYSICAL ATTRIBUTED.same as the actor c. MENTAL CAPACITY.the law takes no account of the infinite varieties of temperament, intellect, and education which make the internal character of a given act so different in different men, Justice Oliver Wendell Holmes

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i. GR external standard, the ideal reasonable man 1. Intoxication 2. Mentally deranged or low IQ ii. EXC 1. Children.capacity of particular child to appreciate the risk and form a reasonable judgment must be taken into account; child of like age, intelligence, and experience 2. Severe mental disability & total insanity.actor not liable because he has no control over conduct 3. Sudden delirium or loss of mental faculties AND lapse unforeseeable.actor not liable because he has no control over conduct EXC 1. STATUTORY STANDARD OF CARE.a statute that has for its purpose (1) preservation of life and/or (2) minimizing personal injuries may validly impose a duty which is greater than the duty of ordinary care. Legislature may declare that breach of such duty is prima facie evidence of negligence. Violator is liable irrespective of how careful or prudent he has been in other respects since the performance of a statutory duty does NOT depend on surrounding circumstances. a. RAIL COMPANIES; WHEN NEGLIGENT.Railroad companies owe to the public a duty of exercising a reasonable degree of care to avoid injury both to operation of trains and crossings (PNR v Brunty). a. Failure of PNR to put a cross bar or signal light, flagman or switchman, or semaphore is evidence of negligence and disregard of safety of public even if there is no law requiring it. = NO proof that train driver properly and timely stepped on emergency break or slowed down at intersection. b. FINANCIAL INSTITUTIONS; WHEN NEGLIGENT.High standards of integrity and performance deemed written into every deposit agreement between a bank and its depositors (RA 8791); banks are obligated to treat accounts with more than paterfamilias, i.e., with meticulous care because of the fiduciary nature of its relationship with clients (Consolidated Bank v CA); more than that of a reasonable man or a good father of the family in view of the fiduciary nature of their relationship with depositors (BPI v Lifetime Marketing Corporation). c. COMMON CARRIERS; WHEN NEGLIGENT.Common carriers must carry passengers safely using utmost diligence of very cautious persons; not only during course of trip but for so long as passengers are within premises & where they ought to be based on contract of carriage. (Light Rail Transit Authority v Navidad). d. HEALTH CARE PROVIDERS; WHEN NEGLIGENT.Did the health care provider either fail to do something which a reasonably prudent health care provider would have done, or not have done, and that failure or action caused injury to the patient. 2.

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discharging his duty of care to the other because of the physical advantages the automobile has over the bicycle. At the slow speed of ten miles per hour, a bicyclist travels almost fifteen feet per second, while a car traveling at only twenty-five miles per hour covers almost thirty-seven feet per second, and split-second action may be insufficient to avoid an accident. It is obvious that a motor vehicle poses a greater danger of harm to a bicyclist than vice versa. Accordingly, while the duty of using reasonable care falls alike on a motorist and a bicyclist, due to the inherent differences in the two vehicles, more care is required from the motorist to fully discharge the duty than from the bicyclist. Simply stated, the physical advantages that the motor vehicle has over the bicycle make it more dangerous to the bicyclist than vice versa.(Heirs of Completo v Albayda) Q: This case contemplates a situation occurring between a car and a bicycle. What if its a car and a motorcycle? Will the same rule apply? " POSSESSION OR CONTROL OF DANGEROUS WEAPONS OR SUBSTANCESA higher degree of care is required of someone who has in his possession or under his control an instrumentality extremely dangerous in character, such as dangerous weapons or substances. Such person in possession or control of dangerous instrumentalities has the duty to take exceptional precautions to prevent any injury being done thereby. Unlike the ordinary affairs of life or business which involve little or no risk, a business dealing with dangerous weapons requires the exercise of a higher degree of care. As a gun store owner, respondent is presumed to be knowledgeable about firearms safety and should have known never to keep a loaded weapon in his store to avoid unreasonable risk of harm or injury to others. Respondent has the duty to ensure that all the guns in his store are not loaded. (Pacis v Morales)

3.

Children

Special Circumstance
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BICYCLEThe

bicycle occupies a legal position that is at least equal to that of other vehicles lawfully on the highway, and it is fortified by the fact that usually more will be required of a motorist than a bicyclist in

SANGCO Under 9 yrs. old CONCLUSIVE PRESUMPTION: acted without discernment and is exempt from criminal liability Over 9 but Under 15 REBUTTABLE PRESUMPTION: may or may not be guilty of contributory negligence, depending upon his mental development and other circumstances Over 15 REBUTTABLE PRESUMPTION BUT REVERSE: presumed to have sufficient capacity and understanding to be sensible of danger with the power to avoid it (STANDARD is still that of a child his age and capacity, not of that of an adult) CONCLUSIVE PRESUMPTIONa person under 9 is conclusively presumed to have acted w/o discernment and is exempt from criminal liabilitysince 1) negligence may be a felony and a QD and 2) required discernment as a condition of liability, either criminal or civila child under 9, by analogy, is conclusively presumed to be incapable of negligence; and presumption of lack of discernment for

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negligence in case of child over 9 but under 15 is rebuttable. Hence, a child under 9 is conclusively presumed incapable of contributory negligence as a matter of law (Jarco v CA) DISPUTABLE PRESUMPTION The same presumption and exemption obtains for person over nine but under 15, unless it is shown that he has acted with discernment. (Jarco v CA) fault of any person and which could not have been prevented by any means suggested by common prudence. "

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STANDARD OF CONDUCTORDINARILY PRUDENT CHILD the standard of conduct which a child must conform to for his own protection is that of a reasonable person of like age, intelligence, and experience, under like or similar circumstances or that degree of care ordinarily exercised by children of the same age, capacity, discretion, knowledge, and experience under the same or similar circumstance (case-to-case basis standard) (Ylarde v CA) Note: BUT A2180 serves as an incentive in exercising care over kids SAME STANDARD AS AN ADULT WHEN 1) type of activity involved is one that is usually engage in by children 2) one involving the use of potentially dangerous, adult-oriented instrument E FFECT his violation of a statute or other enact entails the same consequences as those of an adult E XAMPLE the plaintiff had sufficient capacity and understanding to be sensible of the danger to which he exposed himself when he put the match to the contents of the cap; that he was sui juris in the sense that his age and his experience qualified him to understand and appreciate the necessity for the exercise of that degree of caution which would have avoided the injury which resulted from his own deliberate act; and that the injury incurred by him must be held to have been the direct and immediate result of his own willful and reckless act so that while it may be true that these injuries would not have been incurred but for the negligent act of the defendant in leaving the caps exposed on its premises, nevertheless plaintiffs own act was the proximate and principal cause of the accident which inflicted the injury, thus, he cannot recover. (Taylor v Mla Railroad) " BELOW 9; INCAPABLE OF CONTRIBUTORY NEGLIGENCEanent the negligence imputed to ZHIENETH, the conclusive presumption that favors children below nine (9) years old in that they are incapable of contributory negligence applies. Even if contributory negligence can attributed to ZHIENETH and assume that she climbed over the counter, no injury should have occurred if we accept petitioners' theory that the counter was stable and sturdy for if that was the truth, a frail sixyear old could not have caused the counter to collapse. (Jarco Marketing v CA) Q: Is there mutual exclusivity between negligence and accident? Note: If a child is 8 years old and makes a counter fall over another person who ends up dying, an action for QD can still be filed because negligence is not equal to liabilityOne must make a distinction between children as tortfeasors and children as victims. NEGLIGENCE DISTINGUISHED FROM ACCIDENTaccident and negligence are intrinsically contradictory; one cannot exist with each other. Accident occurs when the person concerned is exercising ordinary care, which is not caused by

CHILDREN IN RELATION TO TEACHERSteachers, in general, shall be liable for the acts of their students except where the school is technical in nature, in which case it is the head thereof who shall be answerable. A teacher who stands in loco parentis to his students should make sure that the children are protected from all harm. E XAMPLE The excavation instructed clearly exposed the students to risk and should not be placed under the category of Work Education such as school gardening, planting trees etc. Aquino acted with fault and gross negligence where instead of availing himself of adult manual laborers he instead utilized his students. Furthermore, the warning given is not sufficient to cast away all serious danger that the concrete block adjacent to the excavation would present to the children. (Ylarde v Aquino) Note: The teacher in Ylarde v Aquino shouldnt have left. There is reason to expect that kids will be kids and they were just doing what kids do. He should have considered the childrens propensity to misbehave

PROSSER AND KEETON It is feasible and appropriate to apply a special standard to children because their normal condition is one of capacity and the state of their progress toward maturity is reasonable capable of determination, and because there is sufficient basis of community experience, on the part of those who have been children or dealt with them, to permit the jury to apply a special standard. There is something of an individual standard: the capacity of the particular child to appreciate the risk and form a reasonable judgment must be taken into account. This means that more will be required of a child of superior skill or intelligence for his age, and less of one who is mentally backward, which is what the courts have refused to do in the case of an adult. But the standard is still not entirely subjective, and if the conclusion is that the conduct of the child was unreasonable in view of his estimated capacity, the child may still be found negligent, even as a matter of law. Whenever a child, whether as plaintiff or as defendant, engages in an activity which is normally one for adults only, the public interest and the public safety require that any consequences due to the childs own incapacity shall fall upon him rather than the innocent victim, and that the child must be held to the adult standard, without any allowance for his age. TRESPASSING CHILDRENthe Torpedo and Turntable cases illustrate the question involved which has been whether a railroad company is liable for an injury received by a child of tender years, who from idle curiosity, or for purposes of amusement, enters upon the railroad companys premises, at a place where the railroad company knew, or had a good reason to suppose, children who would likely to come, and there found explosive signal torpedoes left exposed by the railroad companys employees, one of which when carried away by the visitor, exploded and injured him; or where such child found upon the premises a dangerous machine, such as a turntable left in such condition as to make it probable that children playing with it would be exposed to accident or injury therefrom and where the child did in fact suffer injury in playing with

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such machine. In these, and in a great variety of similar cases, the great weight of authority holds the owner of the premises liable. Q: What if its a 25-year-old with the mental capacity of a 9-year-old? What if its the other way around? What rule would apply? " Children are actuated by similar childish instincts and impulses. Drawn by curiosity and impelled by the restless spirit of youth, boys here as well as there will usually be found whenever the public is permitted to congregate. The movement of machinery, and indeed anything which arouses the attention of the young and inquiring mind, will draw them to the neighborhood as inevitably as does the magnet draw the iron which comes within the range of its magnetic influence. The owners of premises, therefore, whereon things attractive to children are exposed, or upon which the public are expressly or impliedly permitted to enter or upon which the owner knows or ought to know children are likely to roam about for pastime and in play, "must calculate upon this, and take precautions accordingly." (Taylor v Manila Railroad) " ATTRACTIVE NUISANCEthe owner's failure to take reasonable precautions to prevent the child from entering his premises at a place where he knows or ought to know that children are accustomed to roam about of to which their childish instincts and impulses are likely to attract them is at least equivalent to an implied license to enter, and where the child does enter under such conditions the owner's failure to take reasonable precautions to guard the child against injury from unknown or unseen dangers, placed upon such premises by the owner, is clearly a breach of duty, responsible, if the child is actually injured, without other fault on its part than that it had entered on the premises of a stranger without his express invitation or permission. To hold otherwise would be expose all the children in the community to unknown perils and unnecessary danger at the whim of the owners or occupants of land upon which they might naturally and reasonably be expected to enter. (Taylor v Manila Railroad) SIR SAYS: Note: 1) objects inside 2) locationplaces nearbyand accessibility of property N EED NOT BE FREE FROM FAULT while it is the general rule in regard to an adult that to entitle him to recover damages for an injury resulting from the fault or negligence of another he must himself have been free from fault, such is not the rule in regard to an infant of tender years. The care and caution required of a child is according to his maturity and capacity only, and this is to be determined in each case by the circumstances of the case. (Railroad Co. v Stout)

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he fails to exhibit the care and skill of one ordinarily skilled in the particular work which he attempts to do. EXAMPLEthe proof shows that Quest had ample experience in fixing the engines of automobiles and tractors, but does not appear that he has experience in the doing of similar work on boats. For this reason, possibly, the dripping of the mixture from the tank on deck and the flooding of the carburetor did not convey to his mind an adequate impression of the danger of fire. But a person skilled in that particular sort of work would have been sufficiently warned form those circumstances to cause him to take greater and adequate precautions against the danger. In other words, Quest did not use the skill that would have been exhibited by one ordinarily expert in repairing gasoline engines on boats. There was here, on the part of Quest, a blameworthy antecedent inadvertence to possible harm, and this constitutes negligence. The burning of the Gwendoline may be said to have resulted from accident, but this accident was in no sense an unavoidable accident. It would not have occurred but for Quests carelessness or lack of skill. The test of liability is not whether the injury was accidental in a sense, but whether Quest was free from blame. (Culion v Philippine Motors)

b.

Pharmacists
" STANDARD OF CONDUCTthe profession of pharmacy is one demanding care and skill. The responsibility of the druggist to use care has been variously qualified as "ordinary care," "care of a special high degree," "the highest degree of care known to practical men." The "skill" required of a druggist is denominated as "high" or "ample." In other words, the care required must be commensurate with the danger involved, and the skill employed must correspond with the superior knowledge of the business which the law demands. (US v Pineda) SALE OF DRUGS; CAVEAT EMPTOR DOES NOT APPLYthe rule of caveat emptor (buyer beware) cannot apply to the purchase and sale of drugs. The vendor and the vendee do not stand at arms length as in ordinary transactions. An imperative duty is on the druggist to take precautions to prevent death or serious injury to anyone who relies on his absolute honesty and peculiar leaning. The nature of drugs is such that examination would not avail the purchaser anything. It would be idle mockery for the customer to make an examination of a compound of which he can know nothing. Consequently, it must be that the druggist warrants that he will deliver the drug called for! In reality, for the druggist, mistake is negligence and care is no defense. (US v Pineda) MISTAKE IS NEGLIGENCEThe US Supreme Court has ruled that a druggist that sells to a purchaser or sends to a patient one drug for another or even one innocent drug, calculated to produce a certain effect, in place of another sent for and designed to produce a different effect, cannot escape responsibility, upon the alleged pretext that it

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4.

Experts a. In general
PROSSER AND KEETON Professional persons, in general, and those who undertake any work calling for special skill, are required not only to exercise reasonable care in what they do, but also to possess a standard minimum of special knowledge and ability. " When a person holds himself out as being competent to do things requiring professional skill, he will be held liable for negligence if

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was an accidental or innocent mistake. His mistake, under the most favorable aspect for himself, is negligence. And such mistake cannot be countenanced or tolerated, as it is a mistake of the gravest kind and of the most disastrous effect. (Mercury Drug v De Leon) PRESUMPTION OF NEGLIGENCEThere is a presumption of negligence when a pharmacist gives the wrong drug " SIR SAYS: Its almost a strict liability o

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c.

Medical professionals
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MEDICAL NEGLIGENCE

To successfully pursue a case of medical negligence, a patient must only prove that a health care provider either failed to do something which a reasonably prudent health care provider would have done, or that he did something that a reasonably prudent provider would not have done; and that failure or action caused injury to the patient. Simply put, the elements are duty, breach, injury and proximate causation. (Professional Services v Agana)

DUTY #1 duty to use at least the same level of care that any other reasonably competent doctor would use to treat a condition under the same circumstances.In treating his patient, a physician is under a duty to the patient to exercise that degree of care, skill and diligence which physicians in the same general neighborhood and in the same general line of practice ordinarily possess and exercise in like cases. S TANDARD OF CONDUCT good medical practice, which is to say, what is customary and usual in the profession. The standard of care observed by other members of the profession in good standing under similar circumstances bearing in mind the advanced state of the profession at the time of treatment or the present state of medical science. T O ESTABLISH STANDARD OF CARE GR: EXPERT TESTIMONY This standard level of care, skill and diligence is a matter best addressed by expert medical testimony, because the standard of care in a medical malpractice case is a matter peculiarly within the knowledge of experts in the field. (Lucas v Tuano) Expert testimony is essential to establish not only the standard of care of the profession but also that the physician's conduct in the treatment and care falls below such standard.(Cruz v CA)(e.g. physician has done a negligent act or that he has deviated from the standard medical procedure) (Ramos v CA) BURDEN OF PROOF In litigations involving medical negligence, the plaintiff has the burden of establishing appellant's negligence 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 causal connection of such breach and the resulting death of his patient.(Cruz v CA)

XPN: DOCTRINE OF RES IPSA LOQUITUR when the doctrine of res ipsa loquitur is availed by the plaintiff, the need for expert medical testimony is dispensed with 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 domain of medical science, and not to matters that are within the common knowledge of mankind which may be testified to by anyone familiar with the facts. (Ramos v CA) o NON - EXPERT TESTIMONY 1) as to the statements and acts of physicians and surgeons, 2) external appearances, and 3) manifest conditions which are observable by any one may be given by non-expert witnesses. (Ramos v CA) o E FFECT the court is permitted to find a physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund of common knowledge can determine the proper standard of care. (Ramos v CA) o B URDEN OF PROOF W here common knowledge and experience teach that a resulting injury would not have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what occurred but how and why it occurred. When the doctrine is appropriate, all that the patient must do is prove a nexus between the particular act or omission complained of and the injury sustained while under the custody and management of the defendant without need to produce expert medical testimony to establish the standard of care. Resort to res ipsa loquitur is allowed because there is no other way, under usual and ordinary conditions, by which the patient can obtain redress for injury suffered by him. (Ramos v CA) "CAPTAIN OF THE SHIP"the operating surgeon is the person in complete charge of the surgery room and all personnel connected with the operation. Their duty is to obey his orders. Hence, as Captain of the Ship, the lead surgeon has to abide by his duty to make sure that everything goes smoothly in the operating room. (Professional Services v Agana) DUTY # 2DOCTRINE OF INFORMED CONSENTduty of the physician or surgeon to inform the patient of the risks involved in treatment or surgery. B ASIS principles of individual autonomy, and specifically on the premise that every person has the right to determine what shall be done to his own body. Surgeons and other doctors are thus required to provide their patients with sufficient information to permit the patient himself to make an informed and intelligent decision on whether to submit to a proposed course of treatment or surgical procedure.

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E FFECT although the procedure be skillfully performed, the doctor may nevertheless be liable for an adverse consequence about which the patient was not adequately informed. E XTENT OF DISCLOSURE : M ATERIALITY OF THE RISK based upon a professional medical standardwhether physicians customarily inform their patients about the type of risk involved, OR whether a reasonable physician would make the disclosure in the circumstances. I N ADDITION TO PROVING NONDISCLOSURE the plaintiff must also establish a causal link between the nondisclosure and his harm, by proving that he would not have undergone the treatment had he known of the risk of harm that in fact occurred.

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DISPUTABLE PRESUMPTIONS: 1) driver- negligent if found guilty or reckless driving or violating traffic regulations at least twice w/in next preceding 2mos. 2) if at the time of the mishap, he was violating any traffic regulation Q: If the owner is not in the car, does it apply? Q: Is it required, under A2185, that at the time of the mishap, you are still violating any traffic regulation? When is one found guilty of traffic regulation? Is a conviction required? b.

Possession

of

dangerous

weapons

or

substances
Art. 2188. There is prima facie presumption of negligence on the part of the defendant if the death or injury results from his possession of dangerous weapons or substances, such as firearms and poison, except when the possession or use thereof is indispensable in his occupation or business. Gen. Rule: FIRST clause Exception: SECOND clause

PROSSER AND KEETON A doctor may, although he seldom does, contract to cure a patient, or to accomplish a particular result, in which case the doctor may liable for breach of contract when he does not succeed. In the absence of such an express agreement, the doctor does not warrant or insure either a correct diagnosis or a successful course of treatment, and the doctor will not be liable for an honest mistake of judgment, where the proper course is open to reasonable doubt; but, by undertaking to render medical services, even though gratuitously, a doctor will ordinarily be understood to hold himself out as having the standard professional skill and knowledge. The formula under which this usually is put to the jury is that the doctor must have and use the knowledge, skill and care ordinarily possessed and employed by members of the profession in good standing and a doctor will be liable if harm results because he does not have them.

c.

Common carriers

Art. 1734. Common carriers are responsible for the loss, destruction, or deterioration of the goods, unless the same is due to any of the following causes only: (CONES) (1) Flood, storm, earthquake, lightning, or other Natural disaster or calamity; (2) Act of the public Enemy in war, whether international or civil; (3) Act of omission of the Shipper or owner of the goods; (4) The Character of the goods or defects in the packing or in the containers; (5) Order or act of competent public authority. Art. 1735. In all cases other than those mentioned in Nos. 1, 2, 3, 4, and 5 of the preceding article, if the goods are lost, destroyed or deteriorated, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as required in Article 1733. Art. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to observe extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them, according to all the circumstances of each case. Art. 1732. Common carriers are persons, corporations, firms or associations engaged in the business of carrying or transporting passengers or goods or both, by land, water, or air, for compensation, offering their services to the public. d.

D. 1.

PROVING NEGLIGENCE In general

RULES OF COURT RULE 131, SECTION 1. Burden of proof.Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law. 2.

Presumptions a. In motor vehicle mishaps

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

Res ipsa loquitur

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Prosser and Keeton CIRCUMSTANTIAL EVIDENCENegligence may be proved by circumstantial evidence. This is evidence of one fact, or of a set of facts, from which the existence of the fact to be determined may be reasonable be inferred. It involves, in addition to the assertion of witnesses as to what they have observed, a process of reasoning, or inference, by which a conclusion is drawn. R ES IPSA LOQUITUR One type of circumstantial evidence, concerning which there has been much difference of opinion, is that which is given the name of res ipsa loquitur (the thing speaks for itself). NATURE as a rule of evidence, it is peculiar to the law of negligence which recognizes that prima facie negligence may be established without direct proof and furnishes a substitute for specific proof of negligence. The doctrine is not a rule of substantive law but merely a mode of proof or a mere procedural convenience. The rule, when applicable to the facts and circumstances of a particular case, is not intended to and does not dispense with the requirement of proof of culpable negligence on the part of the party charged. It merely determines and regulates what shall be prima facie evidence thereof and facilitates the burden of plaintiff of proving a breach of the duty of due care. o It is simply a step in the process of such proof, permitting the plaintiff to present along with the proof of the accident, enough of the attending circumstances to invoke the doctrine, creating an inference or presumption of negligence, and to thereby place on the defendant the burden of going forward with the proof. (Ramos v CA) WHEN TO INVOKEThe doctrine can be invoked when and only when, under the circumstances involved, direct evidence is absent and not readily available. (Layugan v IAC) IN MEDICAL NEGLIGENCERes ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of each case. A distinction must be made between the failure to secure results VS. occurrence of something more unusual and not ordinarily found if the service or treatment rendered followed the usual procedure of those skilled in that particular practice. (Ramos v CA) REQUISITES: (1) the event must be of a kind which ordinarily does not occur in the absence of someones negligence o EXAMPLE: Indeed, no two motor vehicles traversing the same lane of a highway with double yellow center lines will collide as a matter of course, both ending up on the opposite lane, unless someone is negligent. (Tan v JAM Transit) (2) it must be caused by an agency or instrumentality with the exclusive control of the defendant o MOST INSTRUMENTALunder the "Captain of the Ship" rule, the operating surgeon is the person in complete charge of the surgery

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(3) (4)

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room and all personnel connected with the operation. Their duty is to obey his orders. Dr. Ampil was the lead surgeon. Clearly, the control and management of the thing which caused the injury was in the hands of Dr. Ampil, not Dr. Fuentes. (Professional Services v Agana) no CNit must not have been due to any voluntary action or contribution on the part of the plaintiff optional: the plaintiff has no knowledge or means of knowledge as to the cause of the accident o BRIDGE; NECESSITYThe theoretical basis for the doctrine is its necessity, i.e. that the necessary evidence is not available. The defendant in charge of the instrumentality which causes the injury either knows the cause of the accident or has the best opportunity of ascertaining it and the plaintiff has no such knowledge. It furnishes a bridge by which the plaintiff, without knowledge of the cause, reaches over to defendant who knows or should know the cause, for any explanation of care exercised by the defendant in respect of the matter of which the plaintiff complains. It is a rule of necessity. (DM Consunji v CA) SIRs problem: theres evidence (police report, testimony & affidavit). It is like saying that even if there is evidence, one could still argue RIL to win the case. EXAMPLE: The fire that damaged Belfranlt Building was not a spontaneous natural occurrence but the outcome of a human act or omission. It originated in the store room which petitioners had possession and control of. Respondent had no hand in the incident. Hence, the convergence of these facts and circumstances speaks for itself: petitioners alone having knowledge of the cause of the fire or the best opportunity to ascertain it, and respondent having no means to find out for itself, it is sufficient for the latter to merely allege that the cause of the fire was the negligence of the former and to rely on the occurrence of the fire as proof of such negligence. It was all up to petitioners to dispel such inference of negligence, but their bare denial only left the matter unanswered. (CAP v Belfranlt) Example when all the requisites are present(1) The entire proceedings of the caesarian were under the exclusive control of Dr. Batiquin. (2) The patient underwent no other operation which could habe caused the offending piece of rubber to appear in her uterus, it stands to reason that it could habe only been a by-product of the caesarian section. (Batiquin v CA) NOTE: Although there is no direct proof which links Dr. Batiquin to the rubber, upon application of RIL, he is liable. The theoretical basis for RIL is that the proof should come from the defendant (RIL is the bridge which allows the plaintiff to reach the defendant). EXAMPLES OF PHYSICAL EVIDENCE1) photographsa mute but eloquent manifestation of truth ranking high in the hierarchy of trustworthy evidence. When duly verified and shown by extrinsic evidence to be faithful representations of the subject as of the time in

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question, they are, in the discretion of the trial court, admissible in evidence as aids in arriving at an understanding of the evidence, the situation or condition of objects or premises, or the circumstances of an accident. 2) police blotterslittle probative value but they are nevertheless admitted and considered in the absence of competent evidence to refute the facts stated therein. Entries in police records made by a police officer in the performance of a duty especially enjoined by law are prima facie evidence of the facts therein stated, and their probative value may be either substantiated or nullified by other competent evidence. The questioned exhibits consist mostly of Noras medical records, which were produced by the hospital during trial pursuant to a subpoena ducestecum. Petitioners counsel admitted the existence of the same when they were formally offered for admission by the trial court. In any case, given the particular circumstances of this case, a ruling on the negligence of petitioner may be made based on the res ipsa loquitur doctrine even in the absence of such additional exhibits. In cases involving medical negligence, the doctrine of res ipsa loquitur allows the mere existence of an injury to justify a presumption of negligence on the part of the person who controls the instrument causing the injury, provided that the following requisites concur: 1. The accident is of a kind which ordinarily does not occur in the absence of someones negligence; 2. It is caused by an instrumentality within the exclusive control of the defendant or defendants; and 3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated. (Cantre v Go)

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NOTES: Determining Cause of Principal Incident: A. CASE: Act/Omission of A as the Proximate Cause + Act/Omission of B as the Proximate Cause = Principal Incident B. SIR (proper way): Act/Omission of A + Act/Omission of B = Proximate Cause Principal Incident " U NEXPLAINED ABRUPT SWERVING the negligence of 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 accident was not due to the absence of warning signs re: mound of soil due to excavations of PLDT, but to the unexplained abrupt swerving of the jeep from the inside lane. The only purpose of said signs was to inform and warn the public of the presence of excavations on the site. Estebans already knew of the presence of said excavationspassed by it several times. (PLDT v CA and Spouses Esteban) T URNING WITHOUT PRECAUTION The principal and proximate cause of the electrocution was not the electric wire, evidently a remote cause, but rather the reckless and negligent act of Magno in turning around and swinging the galvanized iron sheet without taking any precaution (e.g. looking back toward the street and at the wire to avoid its contacting said sheet, considering the latters length of 6 feet) (Manila Electric v Remoquillo) NOTE: Case cites Asutdillo v Mla Electric, where a boy named Astudillo placed one foot on a projection, reached out and actually grasped the electric wire and was electrocute. The elevated portion or top of the walls of Intramuros, Mla, just above the Sta Lucia Gatea public place where persons come to stroll so electric company was clearly negligent in placing its wires so near the place. Difference: 1) not in a public placethe wire were well high over the street where there was no possible danger to pedestrians 2) couldnt be reached with hands alonenecessary to hold something long to reach it 3) not a boy whos in no position to realized the dangerpresumed to be that due to his age and experience he was qualified to be called by his step-bro. Perhaps a tinsmith or carpenter so he couldnt have been entirely a stranger to electric wires and their danger 2. "

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E. 1.

DEFENSES AGAINST CHARGE OF NEGLIGENCE Plaintiffs negligence is proximate cause

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 contributory, the immediate and proximate cause of the injury being the defendant's lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded. Art. 2214. In quasi-delicts, the contributory negligence of the plaintiff shall reduce the damages that he may recover. ! EFFECT: completely bar the plaintiff from recovery " Where two automobiles, going in opposite directions collide on turning a street corner, and it appears from the evidence and is found by the trial court that the drivers thereof were equally negligent and contributed equally to the principal occurrence as determining causes thereof, neither can recover of the other for the damages suffered. (Bernardo v Legaspi)

Contributory negligence of plaintiff

DEFINITIONContributory negligence is conduct on the part of the injured party, contributing as a legal cause to the harm he has suffered, which falls below the standard which he is required to conform for his own

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protection. There is contributory negligence when the party's act showed lack of ordinary care and foresight that such act could cause him harm or put his life in danger. It is an act or omission amounting to want of ordinary care on the part of the person injured which, concurring with the defendant's negligence, is the proximate cause of the injury. The underlying precept on contributory negligence is that a plaintiff who is partly responsible for his own injury should not be entitled to recover damages in full but must bear the consequences of his own negligence. If indeed there was contributory negligence on the part of the victim, then it is proper to reduce the award for damages. (NPC v Heirs of Casionan) " A2176: Is mitigation always true? No, because if the defendant is able to prove that his negligence is not the proximate cause of the injury, then the plaintiff cannot recover damages at all. " There seems to be two kinds of causal links: proximate and nonproximate (remote) " Contributory negligence: can be proximate cause or remote cause. But is this a condition? " WARNING SIGNS DOCTRINEIf there are no warning signs, it precludes the application of contributory negligence, as shown in case law. (see Trains right of way, supra) REQUISITETo prove contributory negligence, it is still necessary to establish a causal link, although not proximate, between the negligence of the party and the succeeding injury. In a legal sense, negligence is contributory only when it contributes proximately to the injury, and not simply a condition for its occurrence (PNR v Brunty) o Distinguish bet event itself (without which there could have been no accident) and acts of the victim entering into it, independent of it, but contributing to his own proper hurt (Rakes v Atlantic) 2 KINDS OF CONTRIBUTION: (1) contribution to the principal event; (2) contribution to his own injury " The underlying precept on contributory negligence is that a plaintiff who is partly responsible for his own injury should not be entitled to recover damages in full but must bear the consequences of his own negligence. The defendant must thus be held liable only for the damages actually caused by his negligence. The determination of the mitigation of the defendants liability varies depending on the circumstances of each case. NOT APPLICABLE WHEN o ABSENCE OF RELATIONSHIP BETWEEN NEGLIGENT PERSON AND VICTIM The record is, bereft of any allegation and proof as to the relationship between Mercelita (the driver) and Rhonda Brunty. Hence, the earlier finding of contributory negligence on the part of Mercelita, which generally has the effect of mitigation of liability, does not apply.(PNR v Brunty) o CRIMINAL CASE THRU RECKLESS IMPRUDENCERig driven by appellant bumped an 81 y.o. lady who was crossing the street. His defense was that it was the old lady who bumped his car. TC and CA found him guilty of homicide through reckless imprudence. But the Court said that the alleged contributory negligence of the victim, if any, does not

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exonerate 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. (Genobiagon v CA) EXAMPLE: ABSENCE OF CNthe trail where Noble was electrocuted was regularly used by members of the community. There were no warning signs to inform passersby of the impending danger to theisr lives should they accidentally touch the high tension wires. Also, the trail was the only viable way from Dalicon to Itogon. Hence, Noble should not be faulted for simply doing what was ordinary routine to other workers in the area. (NPC v Heirs of Casionan) NOTES: Proximate Cause = NOCs sagging lines If PLDT was followed, he should have known about the wires; both without warning signs NPCs definition contradictory to Art. 2179 P RESENCE OF CN Rakes contributory negligence can be inferred from the fact that he was on the side of the cars when in fact there were orders from the company barring workers from standing near the side of the cars. His disobedience to this order does not bar his recovery of damages though; the Supreme Court instead reduced the award of damages from 5,000 pesos to 2,500 pesos. (Rakes v Atlantic) NOTES: 1) not following orders; 2) should have known (only a bit because hes new on the job; Foreman should have repaired) ACCIDENT V. INJURY (RAKES TEST) o ACCIDENT: cant recover (contrib. to primary event) :: INJURY: may recover (defendants contrib. Plaintiffs contrib. = recovery) o American Common Law: " Draconian Contributory: negligence policy even if little = Barred from recovery " PROPORTIONAL DAMAGES = Relaxation of Draconian " Comparative Negligence and Contributory Negligence if defendant contributed more, plaintiff allowed to recover o PHILIPPINES: Comparative and Proportional " Problem, what if its equal? Apply BERNARDO (no recovery for both)? In the case at bar, it was established that Ray, at the time of the mishap: (1) was driving the motorcycle at a high speed; (2) was tailgating the Tamaraw jeepney; (3) has imbibed one or two bottles of beer; and (4) was not wearing a protective helmet. These circumstances, although not constituting the proximate cause of his demise and injury to Sergio, contributed to the same result. The contribution of these circumstances are all considered and determined in terms of percentages of the total cause. Hence, pursuant to Rakes v. AG & P, the heirs of Ray Castillon shall recover damages only up to 50% of the award. In other words, 50% of the damage shall be borne by the private respondents; the remaining 50% shall be paid by the petitioner. (Lambert v Castillon)

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Note: SC never provided an explanation behind the percentages used for mitigation Prosser and Keeton Contributory negligence places upon one party the entire burden of a loss for which two are, by hypothesis, responsible. The negligence of the defendant has played no less a part in causing the damage: the plaintiffs deviation from the community standard of conduct may even be relatively slight, and the defendants quite extreme. The injured person is in all probability, for the very reason of his injury, the less able of the two to bear the financial burden of his loss, and the answer of the law to all this is that the defendant goes scot free of all liability and the plaintiff bears it all. It is quite reasonable to say that it encourages negligence by giving the defendant reason to hope that he will escape the consequences. Types " Pure: a plaintiffs contributory negligence does not operate to bar his recovery altogether but does serve to reduce his damages in proportion to his fault. The system in this form is designed to compensate an injured party for all of the harm attributable to the wrongdoing of the defendant; when multiple defendants are involved, all are liable to the plaintiff for their respective shares of the loss, even though some may have been less negligent than he. " Modified:(1) equal fault bar approach the plaintiff cannot recover anything if his fault is equal to or greater than that of the defendant; he is allowed to recover only if his negligence is less than that of the defendant; and (2) greater fault bar approach the plaintiff is prevented from all recovery only if his fault exceeds the defendants; he is therefore allowed to recover if his negligence is equal to or less than that of the defendant. Under both systems, the plaintiffs contributory negligence operates as a complete bar, and he takes nothing, if his fault exceeds the permitted threshold amount; if his negligence falls below that amount, his damages are reduced proportionately to his fault, just as if the pure system were to be applied. " Slight-gross: the plaintiffs contributory negligence is a bar to recovery unless his negligence is slight and the defendants negligence by comparison is gross. CAUSATIONThere is some debate over what is to be compared under comparative negligence: negligence or causation. Causation in fact is an absolute concept, which, by its nature, is incapable of being divided into comparative degreesit either exists, or it does not. Once causation in fact has been established, however, the determination of proximate or legal cause remains a question of policy that may be susceptible to proportionate division. In any event, at either end of the fault continuum, where one partys negligence approaches 100% and the other partys approaches zero, the court may rule or the jury find that the conduct of the plaintiff or of the defendant was the sole proximate cause of the plaintiffs harm, so that damages will not be awardedor not reducedat all.

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Art. 1174. Except in cases expressly specified by the law, or when it is otherwise declared by stipulation, or when the nature of the obligation requires the assumption of risk, no person shall be responsible for those events which could not be foreseen, or which, though foreseen, were inevitable. ELEMENTS: (1) The cause of the unforeseen and unexpected occurrence, or of the failure of the debtor to comply with his obligation, must be independent of the human will. (2) It must be impossible to foresee the event constituting the casofortuito, or if it can be foreseen, it must be impossible to avoid. (3) The occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a normal manner. (4) The obligor (debtor) must be free from any participation in the aggravation of the injury resulting to the creditor. (Juntilla v Fontanar) " EXAMPLE o M ECHANICAL DEFECTS the sudden blow-up of the tire could have been caused by too much air pressure injected into the tire coupled by the fact that it was overloaded and speeding at the time of the accident. The accident was caused either through the negligence of the driver or because of the mechanical defects of the tire. The rationale of the carriers liability is the fact that 1) the passenger has neither choice nor control over the carrier in the selection and use of the equipment and appliances in use by the carrier. 2) having no privity whatever with the manufacturer or vendor of the defective equipment, the passenger has no remedy against him, while the carrier usually has. It is but logical, therefore, that the carrier, while not an insurer of the safety of his passengers, should nevertheless be held to answer for the flaws of his equipment if such flaws were at all discoverable. The source of a common carriers legal liability is the contract of carriage, and by entering into said contract, it binds itself to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence of a very cautious person, with a due regard for all circumstances. (Juntilla v Fontanar) NOTES: Many possibilities were proposed by the Court to justify that the tire blowing up was not a fortuitous event. CasoFortuito is HUMANIZED even if only contributory Art. 2179 applies only to plaintiff Mechanical defect: carrier still liable because its part of the contract of carriage Not enough that there was Fortuitous Event, there should be NO negligence on person charged " T YPHOON typhoon is a fortuitous event, a natural occurrence which may be foreseen but is unavoidable despite any amount of foresight, diligence or care. In order that a fortuitous event may exempt a person from liability, it is necessary that he be free from any previous negligence or misconduct by reason of which the loss may have been occasioned. When the effect is found to be partly the result of the participation of man whether it be from active intervention, or neglect, or failure to act the whole occurrence is hereby humanized, and removed from the rules applicable to acts of God. (Southeastern College v CA) "

3.

Fortuitous Event

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" R OBBERY robbery per se, just like carnapping is not a fortuitous event. It does not foreclose the possibility of negligence.Sicams admission that the vault was open and the combination already off at the time of robbery is clearly a proof of failure to observe the care, precaution and vigilance that the circumstances justly demanded. Ruling in Austria is not applicable because the robbery happened ten years previously when criminality had not reach the level of incidence obtaining in 1971 (Sicam v Jorge) o SIR SAYS: SC is wrong that it was foreseeable because Sicam tried to protect himself o SIR ASKS: Robbery not a fortuitous eventalways true or sometimes true?
FROM DISCUSSION :

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Examples of duty perspectivepark where there are falling debris or where parking lot owner says he will not be liable for loss/damage

NOT AN EXAMPLE TAKING AN EXTENSION SEATnot an implied assumption of risk. It is akin to arguing that the injuries to the many victims of the tragedies in our seas should not be compensated merely because those passengers assumed a greater risk of drowning by boarding an overloaded ferry. (Calalas v CA) PROSSER AND KEETON Assumption of riska.k.a. incurred risk; violent non fit injuria 3 DIFF PERSPECTIVES : 1) Express consentplaintiff, in advance, has given his express consent to relieve defendant of the obligation of conduct toward him and to take his chances of injury from a known risk arising from defendants act or omission 2) Duty perspectiveplaintiff voluntarily enters into relationship with defendant with knowledge that defendant will not protect him against future risks that may arise from the relationship (implied consent) 3) Misconduct perspectiveplaintiff is aware of risk already created by defendants negligence yet chooses to voluntarily proceed to encounter it D EFENSE OF ASSUMPTION OF RISK AND CONTRIBUTORY NEGLIGENCE OVERLAP WHEN plaintiffs conduct in encountering the risk may be unreasonabledanger is out of proportion to advantage he seeks to obtainso, form of contributory negligence: making the wrong choice and voluntarily encountering the risk! defendant may avail of both D ISTINCTION BET ASSUMPTION OF RISK AND CONTRIBUTORY NEGLIGENCE assumption of risk: matter of knowledge of danger and voluntary acquiescence (subjective standard of plaintiff himself):: contributory negligence: fault/departure from standard of conduct + unaware/involuntary (objective standard of reasonable man) o Express assumption of risktotal bar in contributory negligence cases o Primary assumption of risktotal bar in contributor negligence cases (no duty, no negligence) o Unreasonable assumption of risklooks closely like contributory negligence " absorbed into contributory negligencereduce plaintiffs damages " still total barplaintiff made final choice o Reasonable assumption of risktotal bar (XPN: duress) Express agreementallowed [XPN: unequal bargaining power]; depends on public interest involved o sustained when1) plaintiff knew or should have known the provision 2) particular conduct of defendant 3) clear and unequivocal terms; use negligence itself 4) doesnt cover extreme forms of negligence Implied acceptance of riskbasis: consent, not contract; case law: once plaintiff is informed of negligence, risks arising from it may be assumed, but are not necessarily so o Not true that when plaintiff encounters a known danger he necessarily consents to future negligence of defendant (e.g. pedestrian who walks in the middle of the street, where cars are moving at excessive speed!

4. Plaintiffs assumption of risk/ violent non fit injuria

GENERAL RULE: when he voluntarily assents to a known danger he must abide by the consequences. (Ilocos Norte v CA) The doctrine of volenti non fit injuria ("to which a person assents is not esteemed in law as injury") refers to self-inflicted injury or to the consent to injury which precludes the recovery of damages by one who has knowingly and voluntarily exposed himself to danger, even if he is not negligent in doing so. (Nikko Hotel v Roberto Reyes) EXCEPTION: if an emergency is found to exist OR if the life or property of another is in peril (e.g. Nana Belen proceeded northward towards the direction of the Five Sisters Emporium to look after the merchandise therein that might have been damages. She waded into waist-deep flood and got electrocutedIlocos Norte v CA) EXAMPLES C ARETAKER OF AN ANIMAL the animal was in custody and under the control of the caretaker, who was paid for his work as such. Obviously, it was the caretaker's business to try to prevent the animal from causing injury or damage to anyone, including himself. And being injured by the animal under those circumstances, was one of the risks of the occupation which he had voluntarily assumed and for which he must take the consequences. (Afialda v Hisole) o SIR ASKS: What if it was a tame animal? G ATECRASHER CA raised that even if Reyes assumed the risk of being asked to leave the party, under NCC 19& 21, Ms. Lim had an obligation to treat him fairly to not expose him to unnecessary ridicule and shame. SC held that any damage which Mr. Reyes might have suffered through Ms. Lims exercise of a legitimate right done within the bounds of propriety and good faith, must be his to bear alone (also an example of an injury without damage). (Nikko Hotel v Roberto Reyes) PUSHED THROUGH WITH PURCHASE Pantaleon himself testified that the most basic rule when travelling in a tour group is that you must never be a cause of any delay because the schedule is very strict. When Pantaleon made up his mind to push through with his purchase, he must have known that the group would become annoyed and irritated with him. This was the natural, foreseeable consequence of his decision to make them all wait!at any time, he could have cancelled the sale so that the group could go on with the city tour. But he did not. (Pantaleon v American Express)

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contributory negligence; spectators of sportsflying baseball and hockey pucksand amusementroller coaster; riding with a drunk driver; user of dangerous product) Knowledge and appreciation of risk1) understand the nature 2) choice to incur is free and voluntary 3) new element-cannot assume something hes unaware but may consent to take chances as to unknown conditions o standardsubjective: failure to exercise ordinary care=contributory negligence, not assumption of riskobjective: doesnt greatly differ from reasonable person; cannot claim to not understand a risk which is clear and obvious Voluntary assumptionmanifestation of consent: words, facts of situation (e.g. worker doesnt assume risk of defect which employer promised to remedy) o duressdo not assume risk where alternative is to allow threatened harm to occur (e.g. economic pressure-threat of loss of employment; discharge for disobedience) Violation of statutedefendants negligence; plaintiff may still assume risk statutes that protect plaintiff against inability to protect himself like lack of judgment or inability to resist certain pressures (e.g. child labor acts, employment protection) Abolition of defense1) senses no other purpose not covered by other doctrines 2) duplication! confusion 3)results in denial of recovery in cases where it shouldnt be denied o shift ground to dutydisservice to plaintiff: (court) burden of proof of duty and its breach VS. (jury) assumption of risk: defendants affirmative defense that must be pleaded and proven o shift to no duty to be proven by defendantchange of terminology assumption of riskbar in strict liability; good defense when defendant had last clear chance the fault or negligence of the party before he can file an action for damages (Kramer v CA)

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III. CAUSE A. PROXIMATE/ REMOTE/ CONCURRENT PROXIMATE'that cause, which, in natural and continuous sequence, unbroken
by any efficient intervening cause, produces the injury, and without which the result would not have occurred.' And more comprehensively, 'the proximate legal cause is that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as an ordinary prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom (Bataclan v Medina) SIR SAYS: 2nddefition is more accurate CRITICISM: first act could be in the middle of the chain EXAMPLES O VERTURNING OF BUS the proximate cause was the overturning of the bus, this for the reason that when the vehicle turned not only on its side but completely on its back, the leaking of the gasoline from the tank was not unnatural or unexpected; !the coming of the men with a torch was to be expected and was a natural sequence of the overturning of the bus, the trapping of some of its passengers and the call for outside help. (Bataclan v Medina) SIR SAYS: Problem- breach of contract of carriage; definition is obiterno need for discussion of proximate cause; it was just used as basis to increase liability (damages for death), which is not the purpose of proximate cause. Also, proximate causeturning of the bus! not a human!; there was a negligent act prior to that M ISREADING OF PRESCRIPTION the vehicular accident could not have occurred had petitioners employee been careful in reading Dr. Sys prescription. Without the potent effects of Dormicum, a sleeping tablet, it was unlikely that respondent would fall asleep while driving his car, resulting in a collision. (Mercury Drug v Baking) SIR SAYS: SC said it was unlikely that hed fall asleepsoftening of butfor; Problemon the 3rd day: could be cumulative effect; proximate cause is confused with standard of care; Sir agrees with the result but not the explanation E RRONEOUS ASSUMPTION the proximate cause of the injury is the negligence of petitioner's employee in erroneously posting the cash deposit of Florencio Reyes in the name of another depositor (Florencio Amador) who had a similar first name. (Filipinas Bank v CA) REMOTEoriginal cause but efficient intervening cause superseded by proximate cause

5. Prescription
Art. 1146. The following actions must be instituted within four years: (1) Upon an injury to the rights of the plaintiff; (2) Upon a quasi-delict; However, when the action arises from or out of any act, activity, or conduct of any public officer involving the exercise of powers or authority arising from Martial Law including the arrest, detention and/or trial of the plaintiff, the same must be brought within one (1) year. (As amended by PD No. 1755, Dec. 24, 1980.) RULEAn action based upon QD must be instituted within 4 years. The prescriptive period begins from the day the quasi-delict is committed CAUSE OF ACTIONa) a right in favor of the plaintiff by whatever means and under whatever law it arises or is created; b) an obligation on the part of defendant to respect such right; and c) an act or omission on the part of such defendant violative of the right of the plaintiff FROM THE DAY OF THE COLLISIONaggrieved party need not wait for a determination by an administrative body like BMI that the collision was caused by

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EXAMPLES S TOPPING OF THE RIG stopping of rig by Agaton Araneta in the middle of the street was too remote from the accident that presently ensued to be considered the legal or proximate cause of Gayetanos death. The driver got out of the carromata, led the horse over to the curb, and proceeded to fix the bridle. In so doing the bridle was slipped entirely off, when the horse, feeling himself free from control, started to go away1) an appreciable interval of time elapsewitnesses say several minutesbefore the horse started on his career up the street 2) bridle was old and leather was probably weak as to be easily broken. (NOTE: chronology and defective bit; why did the horse run? SIR POINTED OUT THAT: the carromata struck a police telephone box, box came down with a crash and frightened the horse so he set out at full speed up the street) o SIR SAYS: problemmatter of minutes; in Baking- 3 days T URNING AROUND WITHOUT PRECAUTION the principal and proximate cause of the electrocution was not the electric wire being so close to the house and media agua and in failing to properly insulate the wires, evidently a remote cause, but rather the reckless and negligent act of Magno in turning around and swinging the galvanized iron sheet without taking any precaution (e.g. looking back toward the street and at the wire to avoid its contacting said sheet, considering the latters length of 6 feet) (Manila Electric v Remoquillo) CONCURRENTwhere several causes producing an injury are concurrent and each is an efficient cause without which the injury would not have happened, the injury may be attributed to all or any of the causes and recovery may be had against any or all of the responsible persons although under the circumstances of the case, it may appear that one of them was more culpable, and that the duty owed by them to the injured person was not the same. (Far Eastern v CA) o N OT A DEFENSE injury would not have resulted from his negligence alone, without the negligence or wrongful acts of the other concurrent tortfeasor. No actor's negligence ceases to be a proximate cause merely because it does not exceed the negligence of other actors. Each wrongdoer is responsible for the entire result and is liable as though his acts were the sole cause of the injury. (Far Eastern v CA) L IABILITY Where the concurrent or successive negligent acts or omissions of two or more persons, although acting independently, are in combination the direct and proximate cause of a single injury to a third person, it is impossible to determine in what proportion each contributed 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 solidarily liable for the resulting damage under Article 2194 of the Civil Code. (Far Eastern v CA) D ISCUSSION requisites: 1) both EC (but-for) 2) 1 injury- impossible to determine (cannot pinpoint who cause which) EXAMPLE Gavino did not make sure that his directions were promptly and strictly followed; instead of arresting fully the momentum of the vessel, merely ordered half-astern; took another minute to order full-astern when he should be familiar with the depth of port and distance to be kept bet vessel and port in order to berth safely.

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Kabankov, master of vessel, had corresponding duty to countermand any of the orders made by the pilot, and even maneuver the vessel himself, in case of imminent danger to the vessel and the port. His choice to rely blindly upon the pilot's skills, to the point that despite being appraised of a notice of alert (i.e. anchor failed to take hold) he continued to relinquish control of the vessel to Gavino(Far Eastern v CA) P RESUMPTION OF FAULT AGAINST MOVING VESSEL the evidentiary rule in American jurisprudence that there is a presumption of fault against a moving vessel that strikes a stationary object (Far Eastern v CA)

PROSSER AND KEETON Causation in Factembraces all things which have contributed to the result that without them it would not have occurred Proximate cause (legal cause) o reasonable connection between act or omission of defendant AND damage plaintiff suffered o limitation upon legal responsibility those so closely connected with the result of such significance that the law is justified in imposing liability (as opposed to infinite causes and liability) a) nature b) degree of connection bet defendants acts and plaintiffs injury c)policy1) what justice demands 2)what is administratively possible and convenient Causation as Factpositive acts and active physical forces + pre-existing passive conditions which have played material part in bring about the event question of fact fact finder compares what did occur with what could have occurred if hypothetical contrary-to-fact conditions had existed Proximate causeapplied where fact of causation is clearly established; connotes proximatewrong emphasis on factor of physical or mechanical closeness; more appropriate term: legal cause or responsible cause Generalizations about proximate cause 1. Two contrasting theories1) scope of liability should ordinarily extend to but not beyond the scope of foreseeable risksrisks by reason of which the actors conduct is held to be negligent 2) scope of liability should ordinarily extend to but not beyond all direct consequences and those indirect consequences that are foreseeable 2. Choice of method analysislimitations on scope of liability of negligent defendant as legal cause or issue of duty? 3. Leeway for different scope of liability to be effected by different tendencies (evaluative findings) 4. Expansive/ narrow application of flexible concepts of foreseeable and directexception becomes basic rule 5. Predicting outcomes in pending cases Relation to dutyadvantage: proximate cause less likely to be policy-free fact finding; extent of original obligation and of its continuance rather than mechanical sequence of events which make up causation in fact; theres clear and direct causal connection: an attempt to subdivide by proximatemay be an obstacle to determination of real issue Dutyrelation ! obligation ------------! consequences which followed

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PROXIMATE CAUSE Problemextraordinarily changeable concept; no integrated meaning of its own, Confusion with standard of conductstandard of reasonable conduct doesnt require defendant to recognize risk or take precautions against itdefendant simply not negligent: correct:: conduct is not proximate cause: wrong Confusion with defenses to negligence actioncontributory negligence, where defendants negligence, not proximate cause since plaintiffs act had intervened, is replaced by comparative negligenceanomaly to use proximate cause as basis for denying even partial damages: the rule is rationalized by creating imaginary distinctions between causes Proposed Formulae1) nearest causenearest in time and space 2)last human wrongdoerlast culpable human actor: disadvantages: a) not always responsible b)relieve antecedent actor just because negligence didnt extend to particular risk permits it to be substituted for any one of the elements of a negligence case when decision on that element becomes difficult

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B.INTERVENING CAUSE
FORESEEABLE INTERVENING CAUSEIf the intervening cause is one which in ordinary human experience is reasonably to be anticipated or one which defendant has reason to anticipate under the particular circumstances so defendant may be negligent for failure to guard against it. Defendant cannot be relieved from liability by the fact that the risk, or a substantial part of the risk, to which defendant has subjected plaintiff has come to pass. Foreseeable intervening forces are within the scope of original risk and hence of defendants negligence. Risk created by defendant may include the intervention of foreseeable negligence of others (Phoenix Construction v IAC)

EXAMPLE T RUCK DRIVER S NEGLIGENCE IS AN INDISPENSABLE AND EFFICIENT CAUSE that w/o w/c it would in all probability would not have occurred. The improper parking created an unreasonable risk of injury for anyone driving down Gen Lacuna and for having created this risk, the truck driver is responsible. Dionisios negligence was not of an independent and overpowering nature as to cut the chain of causation in fact bet improper parking and the accident nor to sever the juris vinculum of liability. (Phoenix Construction v IAC) PROSSER AND KEETON Intervening causecomes into active operation in producing the result after defendants negligence; external, independent origin Policyscope of legal obligation to protect plaintiff against such intervening cause Defendant is to be held liable if but only if the intervening cause is foreseeable. TEST: whether the intervention of the later cause is significant part of the risk involved in the defendants conduct or is so reasonably connected with it that the responsibility shouldnt be terminated PROBLEM: hindsight Foreseeable ICif IC is one which in ordinary human experience is reasonably to be anticipated, or one which the defendant has reason to anticipate under the

particular circumstances, the defendant may be negligent among other reasons, because of failure to guard against it; failure to protect the plaintiff against that very riskdefendants conduct created or increased an unreasonable risk of harm thru its intervention (e.g. leaves uninsulated electric wires where people may come in contact with them; hole in sidewalk where people may slop or catch a foot in it) o Within the scope of the original risk and of the defendants negligencenot relieved from liability by the fact that the risk or a substantial and important part of the risk, to which the defendant has subjected the plaintiff has indeed come to pass. (e.g. animals that are loose will wander into danger) o Risk created may include intervention of the foreseeable negligence of others (e.g. defendant blocks the sidewalk and forces the plaintiff to walk in a street where the plaintiff will be exposed to the risks of heavy traffic becomes liable when the plaintiff is run down by a car, even though driven negligently) o Danger of some unusual negligence, as when children are in the vicinity and conduct is to be expected of them which would not be foreseen on the part of an adult o Intervening intentional or criminal actsmere fact that misconduct on the part of another might be foreseen is not of itself sufficient to place the responsibility upon the defendant. Normal ICnormal incidents of risk defendant created; do not supersede defendants liability (e.g. defensive acts-swerving aside) o dilution or attenuation of foreseeability (e.g. one who negligently drives a car should foresee that the car may run down a person or collide with another car) o closely and reasonably associated with immediate consequences of defendants act and form part of its aftermath o Rescue doctrineindependent duty of care owed to the rescuer which arises even when defendant endangers no ones safety but his own; not limited to spontaneous/instinctive action, even when theres time for thought o Medical treatmentinjury renders plaintiff susceptible to disease as when open wound becomes infected; plaintiffs weakened condition creates susceptibility to an ailment as pneumonia or tuberculosis o Suicidewhen insanity prevents one from realizing the nature of ones act or controlling ones conduct, the suicide is to be regarded as a direct result, and no intervening force at all or else as a normal incident of the consequences inflicted, for which the defendant will be liable; or if one should hurt oneself during unconsciousness or delirium brought on by the injury Unforeseeable results of unforeseeable causes-not negligent o Problem of scope of legal obligation to protect plaintiff against such an intervening causequestion of negligence and extent of obligation o examples: unpredictable behavior of irresponsible persons, articles left unguarded, violation of express orders, abnormal mistakes in medical treatment, intentional or criminal acts against which no reasonable standard of care would require defendant to be on guard: forgery of check, destructive medling with property o Car-locking ordinance

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When negligence concurs with act of Godliable if result brought about by act of God is the same as that threatened by the defendants negligence Foreseeable results of unforeseeable causes- liable o if result is foreseeable, the manner in which it is brought about is immaterial o difference between malicious/criminal act and inadvertence/ignorant blunders o mere lapse of time has shift responsibility to another o

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probable cause on facts of each cause upon mixed considerations of logic, common sense, justice and policy and precedent. Alternative: when the conduct of two or more actors is so related to an event that their combined conduct, viewed as a whole is a but for cause of the event and application of but-for to them individually would absolve all of them, the conduct of each is a cause in fact of the event Disadvantage: infrequent situation where each of defendant bears a like relationship to the event

C. THE TEST
TESTThe test by which to determine the existence or negligence in a particular case may be stated as follows: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinary person would have used in the same situation? If not, then he is guilty of negligence. (Dy Teban Trading Inc v Ching) S KEWED PARKING the skewed parking of the prime mover triggered the series of events that led to the collision, particularly the swerving of the passenger bus and the Nissan van. Ortiz obviously would not have swerved if not for the passenger bus abruptly occupying his vans lane. The passenger bus, in turn, would not have swerved to the lane of the Nissan van if not for the prime mover improperly parked on its lane. The skewed parking is the proximate cause of the damage to the Nissan van (DyTeban Trading Inc v Ching)

D. CAUSE VS. CONDITION

PROSSER AND KEETON Cause of harm vs. Existing conditions upon which the cause operated When defendant has created only a passive, static condition which made the damage possible, defendant is not liable BUT quite impossible to distinguish between active forces and passive conditions because the latter are result of other active forces which have gone before o EXAMPLE: defendant spills gasolinecreates a condition AND culpable because of danger of fire o NOTE: lapse of time doesnt affect liability Distinction is now almost entirely discredited Refer to case where forces set in operation by defendant have come to rest in a position of apparent safety and some new force intervenes

PROSSER AND KEETON But-for/ Sine qua non rule: defendants conduct is a cause of the event if the event would not have occurred but for that conduct; a rule of exclusion Disadvantage: fails when two causes concur to bring about an event and either one of them, operating alone, would have been sufficient to cause the identical resultallow each defendant to escape liability because conduct of 1 or more would have been sufficient to produce the same result NOTE: mere fact of causation, as distinguished from nature and degree of causal connection, can provide no clue of any kind to singling out those which are to be held legally responsible Substantial Factor: defendants conduct is the cause of the event if it was a substantial factor in bringing it about Covers: 1) similar but not identical result would have followed without defendants act 2) defendant has clearly made but quite insignificant contribution to the result (e.g. throws lighted match into forest fire) Preferable: each of similarly situated defendant is a cause in fact Justly attachable causewhether harm which has been suffered is justly attachable to defendants conduct [criticism: abstract, vague; on the grounds of fairness and social advantage] System of Rules- defendant is liable if he created a force which remained active until it directly caused the result; or created a new active risk of being acted upon by the active force that cause the result Disadvantages: 1) mechanical terminologymore appropriate to physics 2) ignore interplay of various problems of policy in particular situations 3) break down under numerous correct decisions which cant be fitted 4) always determine

E. LAST CLEAR CHANCE

RULENegligence of the claimant does not preclude a recovery for the negligence of the defendant where it appears that the latter, by exercising reasonable care and prudence might have avoided injurious consequences to claimant notwithstanding his negligence (Pantranco v Baesa) RequisitesWhere both parties are negligent, but the negligent act of one is appreciably later in time than that of the other, OR when it is impossible to determine whose fault or negligence should be attributed to the incident, the one who had the last clear opportunity to avoid the impending harm and failed to do so is chargeable with the consequences thereof. Stated differently, the rule would also mean that an antecedent negligence of a person does not preclude the recovery of damages for the supervening negligence of, or bar a defense against liability sought by another, if the latter, who had the last fair chance, could have avoided the impending harm by the exercise of due diligence (Phil Bank of Commerce v CA) o SIR SAYS: Requisitesa) both negligent b) 1-succession in negligent acts 2impossible to determine whose negligence caused the injury! no sequence so who has the last chance? When invokedeither plaintiff or defendantLCC is invoked for the purpose of making a defendant liable to a plaintiff who was guilty of prior or antecedent negligence, although it may also be raised as a defense to defeat claim for damages (Pantranco v Baesa)

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Phil. Rabbit Bus Lines v IAC the principle of "last clear chance" applies "in a suit between the owners and drivers of colliding vehicles. It does not arise where a passenger demands responsibility from the carrier to enforce its contractual obligations. For it would be inequitable to exempt the negligent driver of the jeepney and its owners on the ground that the other driver was likewise guilty of negligence." (Bustamante v CA) Applicable when1) collisions 2) banks Not applicable when 1) culpa contractual 2) joint tortfeasors 3)plaintiff not negligent (1st req absent) o emergency rule: the party charged is required to act instantaneously, and if the injury cannot be avoided by the application of all means at hand after the peril is or should have been discovered (Pantranco v Baesa) " An individual who suddenly finds himself in a situation of danger and is required to act without much time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence if he fails to undertake what subsequently and upon reflection may appear to be a better solution, unless the emergency was brought by his own negligence (Engada v CA) o proximate cause of the injury having been established to be defendants negligence (PNR v Brunty) o joint tortfeasors As between defendantsthe doctrine cannot be extended into the field of joint tortfeasors as a test of whether only one of them should be held liable to the injured person by reason of his discovery of the latter's peril, and it cannot be invoked as between defendants concurrently negligent. As against third persons, a negligent actor cannot defend by pleading that another had negligently failed to take action which could have avoided the injury." (57 Am. Jur. 2d, pp. 806-807) o culpa contractualwhere neither contributory negligence of the plaintiff nor his last clear chance to avoid the loss, would exonerate the defendant from liability. Such contributory negligence or last clear chance by plaintiff merely serves to reduce the recovery of damages by plaintiff EXAMPLE Messenger Calapre went to Allied bank to make another deposit. Upon his return, Teller No. 6 informed him that somebody got the passbook. LC Diaz called up Solidbank to stop any transaction using the passbook until it opened a new acct. However, an unauthorized withdrawal P300k was already made. LC Diaz guilty of contributory negligence in allowing a withdrawal slip signed by its authorized signatories to fall into the hands of an impostor. (Consolidated Bank v CA) NCC 2179 rejects LCClast clear chance cannot be utilized as a general rule in negligence cases in civil law jurisdiction like ours. Under 2179, court must determine whose negligence was the proximate cause of the injury. The relative location in the continuum of time of Ps and Ds negligent acts or omissions is only one of the relevant factors that may be taken into account. Of more importance are the 1)nature of negligent act/omission of each party 2)character and gravity of risks created by such act/omission The historical function of that doctrine in the common law was to mitigate the harshness of another common law doctrine or rule that of contributory negligence. The common

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law rule of contributory negligence prevented any recovery at all by a plaintiff who was also negligent, even if the plaintiff's negligence was relatively minor as compared with the wrongful act or omission of the defendant. The common law notion of last clear chance permitted courts to grant recovery to a plaintiff who had also been negligent provided that the defendant had the last clear chance to avoid the casualty and failed to do so. Accordingly, it is difficult to see what role, if any, the common law last clear chance doctrine has to play in a jurisdiction where the common law concept of contributory negligence as an ABSOLUTE bar to recovery by the plaintiff, has itself been rejected, as it has been in Article 2179 of the Civil Code of the Philippines. (Phoenix v IAC) o SIR SAYS: NCC 2179 rejects LCC; quality test, not temporal; historical function doesnt apply so not needed To salvage LCC- use as one of the tests to determine proximate cause; last resort test; apply to car collision where there is fault on both parties EXAMPLE Wrong side of the roadThe plaintiff himself was not free from fault, for he was guilty of antecedent negligence in planting himself on the wrong side of the road. But as we have already stated, 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. (Picart v Smith) o SIR ASKS: Is Picart still good law? Yes. Glan v IAC explicitly says it is still applicable Return to proper lanethere is nothing to show that the jeepney driver David Ico knew of the impending danger. When he saw at a distance that the approaching bus was encroaching on his lane, he did not immediately swerve the jeepney to the dirt shoulder on his right since he must have assumed that the bus driver will return the bus to its own lane upon seeing the jeepney approaching from the opposite direction. In Vda de Bonifacio v BLTBa motorist who is properly proceeding on his own side of the highway is generally entitled to assume that an approaching vehicle coming towards him on the wrong side will return to his proper lane of trafficNOTE: There was nothing to indicate to driver Davic Ico that the bus couldnt return to its own lane or was prevented from returning to the proper lane by anything beyond the control of its driver. (Pantranco v Baes) SIR SAYS: this contradicts Picart (car was in the right lane-last who acted: the horse-turned thats why its hind legs were hit) Emergency rule is applied when there is no participation in making the emergency but in the case and bar, he had a part. Application of emergency rule Edwin Iran was driving a blue Toyota Tamaraw jeepney (owned by Sheila Seyan) bound for Iloilo City. Passengers allegedly saw from the opposite direction a speeding Isuzu pick-up, driven by Rogelio Engada. 30m away from the Tamaraw, the Isuzu pick-ups right signal light flashed, at the same time, it swerved to its left, encroaching upon the lane of

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the Tamaraw and headed towards a head-on collision course with it. Seyan shouted at Iran to avoid the pick-up. Iran swerved to his left but the pick-up also swerved to its right. Thus, the pick-up collided with the Tamaraw. HELD: Iran could not be faulted when in his attempt to avoid the pick-up, he swerved to his left. Engadas acts had put Iran in an emergency situation which forced him to act quickly. (Engada v CA) SIR SAYS: how about the right to assume that the car will go back to is proper lane? OvertakingIt is a settled rule that a driver abandoning his proper lane for the purpose of overtaking another vehicle in an ordinary situation has the duty to see to it that the road is clear and he should not proceed if he cannot do so in safety. [O]r if, after attempting to pass, the driver of the overtaking vehicle finds that he cannot make the passage in safety, the latter must slacken his speed so as to avoid the danger of a collision, even bringing his car to a stop if necessary (Engada v CA) Vehicle at full stop Both drivers had had a full view of each other's vehicle from a distance of 150m. Both vehicles were travelling at a speed of approximately 30km/h. The truck was already at a full stop while the jeep was still 30m away. The driver of the jeep had what judicial doctrine has appropriately called the last clear chance to avoid the accident, while still at that distance of thirty meters from the truck, by stopping in his turn or swerving his jeep away from the truck, either of which he had sufficient time to do while running at a speed of only 30kph. In those circumstances, his duty was to seize that opportunity of avoidance, not merely rely on a supposed right to expect, the truck to swerve and leave him a clear path. (Glan v IAC) o SIR SAYS: discussion about the center linestupid Rear vehicleDeocampo had the last clear chance to avoid the collision. Since Deocampo was driving the rear vehicle, he had full control of the situation since he was in a position to observe the vehicle in front of him. Deocampo had the responsibility of avoiding bumping the vehicle in front of him. A U-turn is done at a much slower speed to avoid skidding and overturning, compared to running straight ahead. Deocampo could have avoided the vehicle if he was not driving very fast while following the pick-up. Deocampo was not only driving fast, he also admitted that he did not step on the brakes even upon seeing the pick-up. He only stepped on the brakes after the collision(Lapanday v Angala) SIR SAYS: Chevy-still committing negligence (ongoing violation); not based on time but on perspective; equally negligent; concurrent Compare with Lambert v Heirs of Ray-also making a u-turn-consistent? Noncompliance with procedure o Failure to observe self-validation procedureunder the doctrine of "last clear chance" (also referred to, at times as "supervening negligence" or as "discovered peril"), petitioner bank was indeed the culpable party. Assuming that private respondent RMC was negligent in entrusting cash to a dishonest employee, thus providing the latter with the opportunity to defraud the company, as advanced by the petitioner, yet it cannot be denied that the petitioner bank, thru its teller, had the last clear opportunity to avert the injury incurred by its client, simply by faithfully observing their self-imposed validation procedure. (Phil Bank of Commerce v CA) o

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Evidently, the efforts exerted by the bank to verify the identity of the couple posing as Osmundo Canlas and Angelina Canlas fell short of the responsibility of the bank to observe more than the diligence of a good father of a family. Not even a single identification card was exhibited by the said impostors to show their true identity; and yet, the bank acted on their representations simply on the basis of the residence certificates bearing signatures which tended to match the signatures affixed on a previous deed of mortgage to a certain Atty. Magno, covering the same parcels of land in question. Assuming that Osmundo Canlas was negligent in giving Vicente Maosca the opportunity to perpetrate the fraud, by entrusting to latter the owner's copy of the transfer certificates of title of subject parcels of land, it cannot be denied that the bank had the last clear chance to prevent the fraud, by the simple expedient of faithfully complying with the requirements for banks to ascertain the identity of the persons transacting with them. For not observing the degree of diligence required of banking institutions, whose business is impressed with public interest, respondent Asian Savings Bank has to bear the loss sued upon. (Canlas v CA)

SANGCO Doctrine of last clear chance, doctrine of discovered peril, doctrine of supervening negligence, humanitarian doctrine, doctrine of gross negligencelast and clear Negligence of the plaintiff doesnt preclude recovery for the negligence of the defendant where it appears that the defendant, by exercising reasonable care and prudence, might have avoided injurious consequences to the plaintiff notwithstanding the plaintiffs negligence. A person who has the last clear chance or opportunity of avoiding an accident, notwithstanding the negligence acts of his opponent or that of third person imputed to the opponent is considered in law solely responsible for the consequences of the accident When to invoke1)purpose of avoiding the effect of plaintiffs negligence 2) separate ground for recovery As a phase of proximate cause principlethe subsequent negligence of the defendant in failing to exercise ordinary care to avoid injuring the plaintiff becomes the immediate or proximate and efficient cause of the accident, which intervenes between the accident and the remote negligence of the plaintiff; for LCC to be applicable, there must a time sequence Elements1) the plaintiff was in a position of danger and by his own negligence, became unable to escape form such position by the use of ordinary care, either because it became physically impossible for him to do so or because he was totally unaware of the danger 2)the defendant knew that the plaintiff was in a position of danger and further knew, or in the exercise of ordinary care should have known that the plaintiff was unable to escape therefrom 3)the defendant had the last clear chance to avoid the accident by the exercise of ordinary care but failed to exercise such last clear chance and the accident occurred as a proximate result of such failure o Not applicable when plaintiff was not oblivious to his peril, not able to escape danger, or has late opportunity as had the defendant to avoid it

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Doctrine embraces successive acts of negligence1) primary negligence on the part of the defendant 2) contributory negligence of plaintiff which creates a situation of inextricable peril to him and then becomes passive followed by 3)subsequent negligence of the defendant in failing to avoid injury to the plaintiff with the result Parties who may invokesolely for plaintiffs benefit to eliminate antecedent negligence of the plaintiff as a bar to recovery where such negligence is superseded by the defendants subsequent negligence. Although defendant may not invoke the doctrine, it doesnt preclude him from proving that the plaintiff had the last clear chance to avert the injury complained of and establish that plaintiff was guilty of contributory negligence which proximately caused the accident and consequently bars plaintiffs recovery o As between defendantscannot be extended into the field of joint tortdeasors as a test of whether only one of them should be held liable to the injured person by reason of his discovery of the latters peril, and it cannot be invoked as between defendants concurrently negligent o As against third persona negligent actor cannot defend by pleading that another had negligent failed to take action which could have avoided the injury

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3.

D: conscious:: P: unconsciousneither has last nor clear chance Requisites: 1) realize plaintiffs danger 2)defendants inattention; other courts more objective standarddiscover situation; attention only apparent to reasonable person Further qualificationdefendant may reasonable assume until the last moment that plaintiff will look out for himself and has no reason to act until some notice to the contrary Defendants antecedent negligence- defendant, after discovery of danger does what he can to avoid the injury but his prior negligence prevents his efforts from being effective (e.g. tries to stop car but cannot because of defective breaks) Recoverydenied OR allowed (last opportunity which defendant would have had but for his own negligence is equivalent to one he actually had)

IV. PERSONS LIABLE A. TORTFEASOR AND JOINT TORTFEASORS

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 there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. (1902a) Art. 2194. The responsibility of two or more persons who are liable for quasi-delict is solidary. (n) Sue one, some or allIf several persons jointly commit a tort, the plaintiff or person injured, has his election to sue all or some of the parties jointly, or one of them separately, because the tort is in its nature a separate act of each individual. (Worcester v Ocampo) o Joint tortfeasors are jointly and severally liable for the tort which they commit. The person injured may sue all of them, or any number less than all. Each is liable for the whole damage caused by all, and all together are jointly liable for the whole damage. o Not a defenseIt is no defense for one sued alone, that the others who participated in the wrongful act are not joined with him as defendants; nor is it any excuse for him that his participation in the tort was insignificant as compared with that of the others. (Worcester v Ocampo) o Of course the courts during the trial may find that some of the alleged joint tort feasors are liable and that others are not liable. The courts may release some for lack of evidence while condemning others of the alleged tort feasors. And this is true even though they are charged jointly and severally. (Worcester v Ocampo) Act doneIt is not necessary that the cooperation should be a direct, corporeal act. Under the common law, he who aided or assisted or counseled, in any way, the commission of a crime, was as much a principal as he who inflicted or committed the actual tort. The joint tort feasors are all the persons who command, instigate, promote, encourage, advise, countenance, cooperate in, aid or abet the commission of a tort, or who approve of it after it is done, if done for their benefit. They are each liable as principals, to the same extent and in the

PROSSER AND KEETON Modification of contributory negligence Criticism: more a matter of dissatisfaction with the defense of contributory negligence than anything else; dying especially in jurisdictions that have adopted comparative fault Origin: Davies v Mannleft ass unfettered in the highway and defendant drove into it Comparative negligence1) defendant discover plaintiffs helpless situation 2) defendants conductreckless/intentional disregard of danger !doesnt explain when defendants fault is failure to discover danger, slowness, clumsiness, inadvertence o Repudiated last clear chance but applied it under the guise of wantonness or proximate cause In a general area of confusion and agreement, only very general statements can be offered and reference must of necessity be made to the law of each particular state. The situations that have arisen may be classified as follows: 1. Plaintiffs helplessnessplaintiffs prior negligence has placed him in a position from which he is powerless to extricate himself by exercise of ordinary care and defendantdiscovers danger and still had time to avoid it but failed to do so (aka conscious last clear chance; doctrine of discovered peril) Unconscious last clear chancewhere plaintiff has become helpless, and the defendant doesnt discover his danger in time to avoid the injury, but is under a duty to discover it, and with proper vigilance could do so in time to avoid the resultnumber of courts deny recovery, however, considerable number have now swung to allowing recovery. NOTE: lack of reasoning to support either. 2. Plaintiff is Inattentivestill in a position to escape but fails to pay attention to surroundings and discover his own peril

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same manner as if they had performed the wrongful act themselves. (Worcester v Ocampo) SolidaryJoint tort feasors are not liable pro rata. The damages can not be apportioned among them, except among themselves. They can no insist upon an apportionment, for the purpose of each paying an aliquot part. They are jointly and severally liable for the full amount. A payment in full of the damage done, by one of the joint tortfeasors, of course satisfies any claim which might exist against the others. The release of one of the joint tort feasors by agreement, generally operates to discharge all (Worcester v Ocampo)

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B. POSSESSOR OF ANIMALS
Art. 2183. The possessor of an animal OR whoever may make use of the same is responsible for the damage which it may cause, although it may escape or be lost. This responsibility shall cease only in case the damage should come from force majeure or from the fault of the person who has suffered damage. (1905) ELEMENTS1) POSSESSOR OR MAKES USE OF THE ANIMAL 2) ANIMAL causes damage Valid defenses: 1) FE 2) fault of person who suffered the damage Not a valid defense: 1) escape 2) lost EXAMPLEWhile it is true that Purita Vestil is not really the owner of the house, which was still part of Vicente Miranda's estate, there is no doubt that she and her husband were its possessors at the time of the incident in question. (Vestil v IAC)

EXAMPLEThe Court ordered defendants to jointly and severally pay to Worcester the sum of P60,000 even if it was only Kalaw, who was responsible for writing, printing or publication of the alleged libelous article because ach joint tort feasor is not only individually liable for the tort in which he participates, but is also jointly liable with his tort feasors. Act 277 of the Philippine Commission. Section 6 provides that: Every author, editor or proprietor . . . is chargeable with the publication of any words in any part . . . or number of each newspaper, as fully as if he were the author of the same. (Worcester v Ocampo) PROSSER AND KEETON Concerted actionliable for the entire result. There was a common purpose, with mutual aid in carrying it out; there was a joint enterprise so that all coming to do an unlawful act and of one party, the act of one is the act of all the same party being present. All those who, in pursuance of a common plan or design to commit a tortuous act, actively take part in it, or further it by cooperation or request, or who lend aid or encouragement to the wrongdoer, or ratify and adopt the wrongdoers acts done for their benefit are equally liable Express agreement is not necessary and all that is required is that there be a tacit understanding [intent requisite to committing a tort or negligence] o Wrong to hold that mere knowledge by each party of what the other doing is sufficient concertimportant evidence that a tacit understanding exists BUT there is ordinarily no duty to take affirmative steps to interfere; o Not sufficient: 1) mere presence at the commission of the wrong 2) failure to object to it 3) one who innocently, and carefully does an act which happens to further the tortious purpose of another Conspiracybefore, employed in case of combinations of 2 or more persons to abuse legal procedure like malicious prosecution; replaced later by an action on the case in the nature of conspiracy and gradually extend liability in tort as well as crime beyond the active wrongdoer to those who have merely planned, assisted or encouraged the active wrongdoer. o Is it a separate tort? No, mere agreement to do a wrongful act can never alone to a tort. It is only where the means are employed or purposes are accomplished which are themselves tortuous that the conspirators who have acted but have promoted the act will be held liable o Determining factor of liability in conduct in which the element of combination adds such a power of coercion, undue influence or restraint of trade that it makes unlawful when done in combination acts which one person alone might legitimately do. (e.g. boycott)

C. OWNER OF MOTOR VEHICLES

Art. 2184. In motor vehicle mishaps, the owner is solidarily liable with his driver, if the former, who was in the vehicle, could have, by the use of the due diligence, prevented the misfortune. It is disputably presumed that a driver was negligent, if he had been found guilty or reckless driving or violating traffic regulations at least twice within the next preceding two months. If the owner was not in the motor vehicle, the provisions of Article 2180 are applicable. (n) Owner of the vehiclereasonable opportunity to prevent the acts or its continuance Basis of masters liability not respondent superior but rather the relationship of paterfamilias. The theory is that ultimately the negligence of the servant, if known to the master and susceptible of timely correction by him, reflects his own negligence if he fails to correct it in order to prevent injury or damage. Test of imputed negligence Negligence on the part of the owner, if any, must be sought in the immediate setting and circumstances of the accident, that is, in his failure to detain the driver from pursuing a course which not only gave him clear notice of the danger but also sufficient time to act upon it. o SubjectiveCar owners are not held to a uniform and inflexible standard of diligence as are professional drivers. In many cases they refrain from driving their own cars and instead hire other persons to drive for them precisely because they are not trained or endowed with sufficient discernment to know the rules of traffic or to appreciate the relative dangers posed by the different situations that are continually encountered on the road. The law does not require that a person must possess a certain measure of skill or proficiency either in the mechanics of driving or in the observance of traffic rules before he may own a motor vehicle. Were the law to require a uniform standard of perceptiveness, employment of professional drivers by car owners who, by their very inadequacies, have real need of drivers' services, would be effectively proscribed EXAMPLE Reasonable opportunity to prevent acts or its continuanceUnderwoods driver was negligent. However, Underwood is not responsible for the negligence of his driver, under the facts and circumstances of the case. The interval between

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the turning out to meet and pass the street car and the happening of the accident was so small as not to be sufficient to charge defendant with the negligence of the driver. (Chapman v Underwood) o Johnson vs. David (5 Phil. Rep., 663): the driver does not fall within the list of persons in article 1903 of the Civil Code for whose acts the defendant would be responsible. Although in the David case the owner of the vehicle was not present at the time the alleged negligent acts were committed by the driver, the same rule applies where the owner is present, unless the negligent act of the driver are continued for such a length of time as to give the owner a reasonable opportunity to observe them and to direct his driver to desist therefrom. Subjective standardthe road was wide and open, and devoid of traffic that early morning; there was no reason for the car owner to be in any special state of alert; he had reason to rely on the skill and experience of his driver; he became aware of the presence of the carretela when his car was only twelve meters behind it, but then his failure to see it earlier did not constitute negligence, for he was not himself at the wheel; and even when he did see it at that distance, he could not have anticipated his driver's sudden decision to pass the carretela on its left side in spite of the fact that another car was approaching from the opposite direction. (Caedo v Yu Khe Thai)

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D. PROVINCES, CITIES, MUNICIPALITIES

Art. 2189. Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by, any person by reason of the defective condition of roads, streets, bridges, public buildings, and other public works under their control or supervision. (n) It is not even necessary for the defective road or street to belong to the province, city or municipality for liability to attach. The article only requires that either control or supervision is exercised over the defective road or street.

exercised through the City Engineer. The same charter of Dagupan also provides that the laying out, construction and improvement of streets, avenues and alleys and sidewalks, and regulation of the use thereof, may be legislated by the Municipal Board . Thus the charter clearly indicates that the city indeed has supervision and control over the sidewalk where the open drainage hole is located. The express provision in the charter holding the city not liable for damages or injuries sustained by persons or property due to the failure of any city officer to enforce the provisions of the charter, can not be used to exempt the city, as in the case at bar. The charter only lays down general rules regulating the liability of the city. On the other hand article 2189 applies in particular to the liability arising from "defective streets, public buildings and other public works." (Guilatco v Dagupan) Applicable even if no death or physical injury (e.g. vehicle suffered extensive damage)whether Article 2189 is applicable to cases in which there has been no death or physical injury, the CA ruled in the affirmative:"x x x. More importantly, we find it illogical to limit the liability to death or personal injury only as argued by appellants in the case at bar applying the foregoing provisions. For, injury is an act that damages, harms or hurts and mean in common as the act or result of inflicting on a person or thing something that causes loss, pain, distress, or impairment. Injury is the most comprehensive, applying to an act or result involving an impairment or destruction of right, health, freedom, soundness, or loss of something of value." (QC v Decara) Where no precautions were found at the scene of the accidentthe provisions of Article 2189 of the New Civil Code capsulizes the responsibility of the city government relative to the maintenance of roads and bridges since it exercises the control and supervision over the same. Failure of the defendant to comply with the statutory provision found in the subject-article is tantamount to negligence per se which renders the City government liable. Harsh application of the law ensues as a result thereof but the state assumed the responsibility for the maintenance and repair of the roads and bridges and neither exception nor exculpation from liability would deem just and equitable." (QC v Decara)

EXAMPLE National road under control and supervision of city (i.e. Perez Blvd)the control or supervision is provided for in the 22 of charter of Dagupan1 and is

E. PROPRIETORS OF BUILDINGS
Art. 2190. The proprietor of a building OR structure is responsible for the damages resulting from its total or partial collapse, if it should be due to the lack of necessary repairs. Tolentino Proof of Negligence The liability of the owner under this article is based on negligence. Proof that a building or structure is not in a good state of repair, thus requiring the adoption of precautions to avoid injury, and that the building or structure collapsed, will show negligence prima facie. DefensesThe proprietor will have to prove that he has made the necessary repairs, or that the collapse was due to a defect in construction or to fortuitous event, in order to relieve himself of liability for damages caused to third persons. Property Under Lease or Usufruct Even when the property is leased or in usufruct, the proprietor is liable to third persons who may be injured by its collapse. But since the lessee and the usufructuary are obliged to notify the owner of the need for repairs,

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their omission to give notice will make them liable to reimburse the owner for the indemnity he may have been obliged to pay to the parties injured by the collapse of the property. Art. 2191. Proprietors shall also be responsible for damages caused: (1) By the explosion of machinery which has not been taken care of with due diligence, and the inflammation of explosive substances which have not been kept in a safe and adequate place; (2) By excessive smoke, which may be harmful to persons or property; (3) By the falling of trees situated at or near highways OR lanes, if not caused by force majeure; (4) By emanations from tubes, canals, sewers or deposits of infectious matter, constructed without precautions suitable to the place. Tolentino INANIMATE OBJECTS The Code does not deal in general with inanimate objects, but provides only for a few specific cases in this part. According to the basic principle of our Code, outside of those cases expressly provided for, the owner of a thing cannot be held liable for damages caused by it, unless he is at fault or is negligent. BASIS(1) the principle of created risks, and (2) the principle of presumed negligence (" ) PRINCIPLE OF CREATED RISKS : When a person introduces in society a dangerous object, from necessity or for profit, he exposes others to danger. If it injures another, even without negligence on the part of the owner or proprietor, he should be liable for the damages caused. PRINCIPLE OF PRESUMED NEGLIGENCE : When an inanimate object causes damage to another, the owner thereof becomes liable; proof of fault or negligence is unnecessary because this is presumed. Art. 2192. If damage referred to in the two preceding articles should be the result of any defect in the construction mentioned in Article 1723, the third person suffering damages may proceed only against the engineer or architect or contractor in accordance with said article, within the period therein fixed.

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building. 1 Is this provision one of strict liability? 1 If the person who hired the architect and engineer was the one who prescribed what he/she wants in the house, does the liability shift to the owner? 1 Supervision seems to be primarily vested with the contractor only. 1 Situation: To cut costs, contractor buys locally-manufactured cement for the walls of the house instead of an imported one. The owner then puts in heavy duty nails to be used for hanging a 45-kg Manet painting. Overtime, the surface of the wall nearest the nails began to show small cracks due to wear and tear. An earthquake hit the location where the house was located. It did not cause the buildings to collapse but it did cause the cracks to get bigger. If the building collapsed some time later by virtue of the walls deterioration, can you still hold the architect/engineer/contractor liable? Is there sufficient ground and basis to say that the owner should have done something to repair the cracked wall? Is locally-manufactured materials considered inferior if imported ones are available in the market?

G. HEAD OF A FAMILY FOR THINGS THROWN/FALLING

Art. 2193. The head of a family that lives in a building or a part thereof, is responsible for damages caused by THINGS thrown OR falling from the same. UPON WHOM LIABILITY ATTACHES Head of the family. Intention or negligence is immaterial because its a strict liability tort. It will apply regardless of how things fell from the house. SAME; EXAMPLE -- As a joint tenant and manager of the hotel with full possession of the top of the house, Dingcong must answer for damages caused by things that were thrown or fell from it (Article 1910 Civil Code). Echevarria, a guest of the hotel, was the one who directly caused damage by his neglect as shown by his leaving open the tap, letting the water pipe pull back on the ground and seep into the low, dipping the articles and goods of the plaintiffs. Dingcong on the other hand, did not practice the diligence of a good father to prevent this damage however they knew because they could have caused the repairs of the pipes. He should have presumed that Echavarria would use the tap and should have provided some container with adequate drainage, and not just put a pan under it that, when filled, the water would spread on the ground. (Dingcong v Kanaan)

F. ENGINEER/ARCHITECT OF COLLAPSED BUILDING

Art. 1723. The engineer or architect who drew up the plans and specifications for a building is liable for damages if within 15 years from the completion of the structure, the same should collapse by reason of a defect in those plans and specifications, OR due to the defects in the ground. The contractor is likewise responsible for the damages if the edifice falls, within the same period, on account of defects in the construction OR the use of materials of inferior quality furnished by him, OR due to any violation of the terms of the contract. If the engineer or architect supervises the construction, he shall be solidarily liable with the contractor. Acceptance of the building, after completion, does not imply waiver of any of the cause of action by reason of any defect mentioned in the preceding paragraph. The action must be brought within 10 years following the collapse of the

H. OWNERS OF ENTERPRISES/OTHER EMPLOYERS

Art. 1711. Owners of enterprises and other employers are obliged to pay compensation for the death of or injuries to their laborers, workmen, mechanics or other employees, even though the event may have been purely accidental or entirely due to a fortuitous cause, if the death or personal injury arose out of and in the course of the employment. The employer is also liable for compensation if the employee contracts any illness or disease caused by such employment or as the result of the nature of the employment. If the mishap was due to the employee's own notorious negligence, or voluntary act, or drunkenness, the employer shall not be liable for compensation. When the employee's lack of due care contributed to his death or injury, the compensation shall be equitably reduced.

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WHO INCURS LIABILITY Owners of enterprises and other employers have the obligation to pay compensation under this provision. Under the principle of ejusdem generis, said "other employers" must be construed to refer to persons who belong to a class analogous to "owners of enterprises", such as those operating a business or engaged in a particular industry or trade, requiring its managers to contract the services of laborers, workers and/or employees. (Alarcon v Alarcon) case @ bar: just hired to dig a well TO WHOM LIABLE Laborers, workmen, mechanics, or other employees. Laborer' is used as a synonym of 'Employee' and means every person who has entered the employment of, or works under a service or apprenticeship contract for an employer. XPN: It does not include a person whose employment is purely casual and is not for the purposes of the occupation or business of the employer. (Alarcon v Alarcon) WHEN LIABILITY ATTACHES By the use of these words it was not the intention of the legislature to make the employer an insurer against all accidental injuries which might happen to an employee while in the course of the employment, but only for such injuries arising from or growing out of the risks peculiar to the nature of the work in the scope of the workman's employment of incidental to such employment, and accidents in which it is possible to trace the injury to some risk or hazard to which the employee is exposed in a special degree by reason of such employment. Risks to which all persons similarly situated are equally exposed and not traceable in some special degree to the particular employment are excluded. (Afable v Singer Sewing Machine citing Mueller Construction Co. vs. Industrial Board) GR & XPNGR: an employee is not entitled to recover from personal injuries resulting from an accident that befalls him while going to or returning from his place of employment, because such an accident does no arise out of and in the course of his employment. XPN: Depends on the nature of his employment. In the case at bar, if the deceased had been killed while going from house to house in San Francisco del Monte in the pursuance of his employment, the plaintiffs would undoubtedly have the right, prima facie, to recover. (Afable v Singer Sewing Machine) NOT LIABLE1) employees own notorious negligence, or 2) voluntary act, or 3) drunkenness EQUITABLY REDUCEDlack of due care contributed to his death or injury (failure to comply with duty to minimize damages). AROSE OUT OForigin or cause of the accident, and are descriptive of its character IN THE COURSE OF EMPLOYMENTrefer to the time, place, and circumstances under which the accident takes place. EXAMPLESIt is plain that if, as the record states, it was necessary for him to pass over the railroad location, it formed no part of the employers' plant; nor was it in any way connected therewith or in their control. The contract of employment did not provide for transportation or that the employee should be paid for the time taken in going and returning to his place of employment, and when the day's work had ended the employee was free to do as he pleased. If he had chosen to use the public ways and had been injured by a defect or passing vehicle the administrator could not recover against the employer because there would be no causal connection between the conditions of employment and the injuries suffered. (Fumiciello doctrine as cited in Afable). If the deceased saw fit to change his residence from San Francisco del Monte to Manila and to make use a bicycle in going back and forth, he did so at his

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own risk, as the defendant company did not furnish him a bicycle or require him to use one; and if he made collections on Sunday, he did not do so in pursuance of his employment, and his employer is not liable for any injury sustained by him. (Afable v Singer Sewing Machine) Art. 1712. If the death or injury is due to the negligence of a fellow worker, the latter and the employer shall be solidarily liable for compensation. If a fellow worker's intentional malicious act is the only cause of the death or injury, the employer shall not be answerable, unless it should be shown that the latter did not exercise due diligence in the selection or supervision of the plaintiff's fellow worker. WHO IS LIABLE The fellow worker whose negligence resulted in the death or injury of an employee is solidarily liable with the employer for compensation. EXCEPTION Employer is not liable if the death or injury was caused solely by the fellow workers intentional malicious act. EXCEPTION TO EXCEPTION If it is shown that the employer did not exercise due diligence in the selection or supervision of the erring fellow worker.

I. MANUFACTURERS/PRODUCERS
Art. 2187. Manufacturers and processors of foodstuffs, drinks, toilet articles and similar goods shall be liable for death or injuries caused by any noxious or harmful substances used, although no contractual relation exists between them and the consumers. WHO IS LIABLE -- Manufacturers and processors of foodstuffs, drinks, toilet articles EXCEPTION -- only punishes manufacturers and processors, not sellers WHEN LIABILITY ARISES -- Death or injuries caused by noxious or harmful substances WHOM LIABLE TO -- Anyone who consumed goods (even if goods were stolen) Art. 1170. Those who in the performance of their obligations are guilty of fraud, negligence, or delay, and those who in any manner contravene the tenor thereof, are liable for damages. Art. 1171. Responsibility arising from fraud is demandable in all obligations. Any waiver of an action for future fraud is void. Art. 1172. Responsibility arising from negligence in the performance of every kind of obligation is also demandable, but such liability may be regulated by the courts, according to the circumstances. CONSUMER ACT Art. 97. Liability for the Defective Products. - Any Filipino or foreign manufacturer, producer, and any importer, shall be liable for redress, independently of fault, for damages caused to consumers by defects resulting from design, manufacture, construction, assembly and erection, formulas and handling and making up, presentation or packing of their products, as well as for the insufficient or inadequate

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information on the use and hazards thereof. A product is defective when it does not offer the safety rightfully expected of it, taking relevant circumstances into consideration, including but not limited to: (a) presentation of product; (b) use and hazards reasonably expected of it; (c) the time it was put into circulation. A product is not considered defective because another better quality product has been placed in the market. The manufacturer, builder, producer or importer shall NOT be held liable when it evidences: (a) that it did not place the product on the market; (b) that although it did place the product on the market such product has no defect; (c) that the consumer or a third party is solely at fault. Art. 99. Liability for Defective Services. - The service supplier is liable for redress, independently of fault, for damages caused to consumers by defects relating to the rendering of the services, as well as for insufficient or inadequate information on the fruition and hazards thereof. Art. 106. Prohibition in Contractual Stipulation. - The stipulation in a contract of a clause preventing, exonerating or reducing the obligation to indemnify for damages effected, as provided for in this and in the preceding Articles, is hereby prohibited, if there is more than one person responsible for the cause of the damage, they shall be jointly liable for the redress established in the pertinent provisions of this Act. However, if the damage is caused by a component or part incorporated in the product or service, its manufacturer, builder or importer and the person who incorporated the component or part are jointly liable. Republic Act No. 9803 Section 2. Declaration of Policy. - It is the policy of the State to alleviate national poverty and reduce food wastage. As such, the State shall implement measures to encourage the donation of apparently wholesome food for charitable purposes. Section 5. Liability for Damages from Donated Food. - A person, whether natural or juridical, shall not be subject to civil or criminal liability arising from the nature, age, packaging, or condition of apparently wholesome food that a person donates in good faith for charitable purposes. This shall not apply, however, to an injury or death of an ultimate beneficiary of the donated food that results from an act or omission of a person constituting gross negligence or intentional misconduct. Liability for negligence in food products (copied from last years discussion; mainly from Sangco article that was unassigned) To constitute negligence an act must be one from which a reasonably careful person would foresee such an appreciable risk of harm to others as to cause him to forego the act or to do it in a more careful manner. Whether recovery is sought under strict liability or on fault or negligence, it would seem contributory negligence would diminish recovery. a. Duty of care of manufacturer or processor of food.

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The duty owed to the consumer by the manufacturer of food products intended for human consumption is commensurate with the danger and the possible and probable result of a lack of care. A high degree of care is required of the producer of foods (in the production of such product, advertising, inspecting the ingredients and warning the consumers of possible injury from consumption of a food). b. Duty of care of restaurant operator A restaurateur has no duty to serve perfect products. But the law of negligence requires him to exercise a care proportionate to the serious consequences that may follow from a want of care. c. Duty of seller other than restaurant operator. A vendor of provisions selected, sold, and delivered to the purchaser for his immediate use is bound to know the peril that the provisions are sound and wholesome and fit for immediate use, and if they turn out to be unsound and not wholesome, and the purchaser is injured thereby, the vendor is liable to him. d. Duty of warning; inspecting; testing. A manufacturer or seller of a product which, to his actual or constructive knowledge, involves danger to users has a duty to give warning of such danger. As a matter of elementary logic, no duty to warn arises with respect to a product which is not in fact dangerous. The vendor of food should indemnify his vendee against latent defects contained in the product which the vendee, by inspection or taste, could not have discovered himself. The test of commodities required is no more than that commonly or usually practiced by careful dealers under the same conditions and circumstances, which is at least as high a duty of care as the consumer expects or has the right to expect of his groceryman or food dealer. NOTES: " Is a restaurant owner a seller or a processor? " Could the company stipulate limited liability? No. A106 of the Consumer Act. If basis is not Consumer Act, you can use 2187 on strict liability which is a powerful provision except against sellers (law on SALES will be the basis in this case) " Elements of 2187: 1) causal link 2) manufacturers, processors " What do you mean by similar goods?-Sangco-consumed by humans. Question: What about those consumed by animals? " Do you apply strict liability even if defendant exercised due diligence? Yes. Precisely why it is called strict liability " Can RES IPSA LOQUITUR apply? Only if the defect in the items is of such nature and character that do not change.

J. VICARIOUS LIABILITY
Art. 2180. The obligation imposed by Article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company. Guardians are liable for damages caused by the minors or incapacitated persons who are under their authority and live in their company. The owners and managers of an establishment or enterprise are likewise

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responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions. Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. The State is responsible in like manner when it acts through a special agent; but not when the damage has been caused by the official to whom the task done properly pertains, in which case what is provided in Article 2176 shall be applicable. Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices, so long as they remain in their custody. The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage. BASISThe legislature has elected, for reasons of public policy, to extend that liability, without regard to the lack of moral culpability, so as to include responsibility for the negligence of those persons whose acts or omissions are imputable, by legal fiction, to others who are in a position to exercise an absolute or limited control over them. The legislature which adopted our civil code elected to limit extra contractual liabilitywith certain well-defined exceptionsto cases in which moral culpability can be directly imputed to the persons to be charged. This moral responsibility may consist in having failed to exercise due care in ones own acts, or in having failed to exercise due care in the selection and control of ones own agents or servants, or in the control of persons who, by reasons of their status, occupy a position of dependency with respect to the person liable for their conduct. (Cangco v. Manila Raildroad) Tolentino BASIS OF RESPONSIBILITY The responsibility imposed by this article arises by virtue of a presumption juris tantum of negligence on the part of the persons made responsible under the article, derived from their failure to exercise due care and vigilance over the acts of subordinates to prevent them from causing damage. Negligence is imputed to them by law, unless they prove the contrary (last paragraph) It is clear, therefore, that it is not representation, nor interest, nor even the necessity of having somebody else answer for the damages caused by the persons devoid of personality, but it is the non-performance of certain duties of precaution and prudence imposed upon the persons who become responsible by the civil bond uniting the actor to them, which forms the foundation of such responsibility. REQUISITESChironi gives two requisites for such liability: (1) the duty of supervision, and (2) the possibility of making such supervision effective. LIABILITY OF AUTHOR This article does not exempt the minor, ward, employee, special agent, pupils, students, and apprentices from personal liability. In fact, they are the only ones who will be held liable if there are no persons having authority over them (article 2182), or if the latter are able to prove the exercise of due diligence to prevent the damage. Hence, the injured party can bring an action directly against the author of the negligent act or omission, or he may sue as joint defendants such author and the person responsible for him.

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1. PARENTS
Art. 2181. Whoever pays for the damage caused by his dependents or employees may recover from the latter what he has paid or delivered in satisfaction of the claim. FC. 216. In default of parents or a judicially appointed guardian, the following person shall exercise SUBSTITUTE parental authority over the child in the order indicated: (1) The surviving grandparent, as provided in Art. 214; (2) The oldest brother or sister, over 21 years of age, unless unfit or disqualified; and (3) The child's actual custodian, over 21 years of age, unless unfit or disqualified. Whenever the appointment or a judicial guardian over the property of the child becomes necessary, the same order of preference shall be observed. (349a, 351a, 354a) FC. 217. In case of foundlings, abandoned neglected or abused children and other children similarly situated, parental authority shall be entrusted in summary judicial proceedings to heads of children's homes, orphanages and similar institutions duly accredited by the proper government agency. (314a) FC. 221. Parents and other persons exercising parental authority shall be civilly liable for the injuries and damages caused by the acts or omissions of their unemancipated children living in their company and under their parental authority subject to the appropriate defenses provided by law. (2180(2)a and (4)a ) FC. 236. Emancipation for any cause shall terminate parental authority over the person and property of the child who shall then be qualified and responsible for all acts of civil life. (412a) RPC. 101. RULES REGARDING CIVIL LIABILITY IN CERTAIN CASES. The exemption from criminal liability established in subdivisions 1, 2, 3, 5 and 6 of Article 12 and in subdivision 4 of Article 11 of this Code does not include exemption from civil liability, which shall be enforced subject to the following rules: First. In cases of subdivisions 1, 2 (under 9), and 3 (over 9 and under 15) of Article 12, the civil liability for acts committed by an imbecile or insane person, and by a person under 9 years of age, or by one over 9 but under 15 years of age, who has acted without discernment, shall devolve upon those having such person under their legal authority or control, unless it appears that there was no fault or negligence on their part. Should there be no person having such insane, imbecile or minor under his authority, legal guardianship or control, OR if such person be insolvent, said insane, imbecile, or minor shall respond with their own property, excepting property exempt from execution, in accordance with the civil law. RA 9344, SEC. 6. MINIMUM AGE OF CRIMINAL RESPONSIBILITY. - A child 15 years of age or under at the time of the commission of the offense shall be exempt from criminal liability. However, the child shall be subjected to an intervention program pursuant to Section 20 of this Act.

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A child above 15 years but below 18 years of age shall likewise be exempt from criminal liability and be subjected to an intervention program, unless he/she has acted with discernment, in which case, such child shall be subjected to the appropriate proceedings in accordance with this Act. The exemption from criminal liability herein established does not include exemption from civil liability, which shall be enforced in accordance with existing laws. LIABILITY OF PARENTS The liability of parents under Art. 2180 is based on a presumption of failure on their part to properly exercise their parental authority for the good education of their children and exert adequate vigilance over them. The liability is imposed only when the children live with the parents. So long as they are living together, the requirement of the law is complied with, whether they are in their domicile or in some other place temporarily. The liability of the parents exists even when the minor child is married. When the children are not living with the parents, the liability of the latter may or may not disappear. If the separation is unjustifiable, such as when they are abandoned or are allowed to become vagabonds, the liability of the parents subsists, because there is a want of the vigilance and care which the law imposes. But, if there is just cause for the separation, as when the children have been entrusted to relatives for reasons of health or study, or when the child is in military training, etc., the responsibility of the parents ceases. The responsibility of the father and mother is not simultaneous, but alternate, the father being primarily liable, and the mother answering only in case of his death or incapacity. If the father is living and capable, it is improper to join the mother as party defendant, and if so impleaded, the court may properly drop her from the complaint. RATIONALE -- Art. 2180 is frequently called as vicarious liability or the doctrine of imputed negligence. Parental liability is a natural/logical consequence of the parents duties & responsibilities (includes instructing, controlling & disciplining of child). Civil liability is based on parental authority vested by the Civil Code upon parents. It assumes that parents were negligent in the performance of their legal & natural duty to supervise the child whos in their custody & control. Presumption may be overturned by proof that they exercised all diligence to prevent damage. (Tamargo v CA) LIABILITY OF PARENTS; AS APPLIED; QUASI-DELICTS -- The civil liability of the parents for quasi-delicts of their minor children are direct and primary as contemplated in Art, 2180. Applying Art. 2194, the said article provides for the solidary liability of joint tortfeasors, the minor and the father and, in case of his death or incapacity, the mother. This indicates that parental liability is primary and not subsidiary. Also, the last paragraph of Art. 2180 indicates that # the responsibility treated on this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage. (Libi v IAC) FELONIES -- The liability of parents for the felonies committed by their minor children is likewise primary, not subsidiary. This is shown by RPC 101 provides that the civil liability for acts committed by minors shall devolve upon those having such person under their legal authority or control unless it appears that there was no fault or negligence on their part. This is further buttressed by NCC. 2182 which states that if the minor has no parents or guardian, the minor shall be answerable with his own

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property in an action against him where a guardian ad litem shall be appointed. (Libi v IAC) WITH DISCERNMENTIn parental liability arising from crime, when a minor acted with discernment the parents are subsidiary liable, WITHOUT DISCERNMENTthe parents are primarily liable. The primary liability in Article 101 of RPC shall be imposed pursuant to Art. 2180 of NCC which states that liability shall be effected against the father and in case of his death or incapacity, the mother. Art. 2180 was further amplified by the Child and Youth Welfare Code which added the guardian in case of death or incapacity of the mother but the liability may also be voluntarily assumed by a relative or family friend of the youthful offender. However, under FC, this civil liability is now to be executed against both parents or those who exercise parental authority over the minor offender. For civil liability arising from quasi-delicts committed by minors, the same rules shall apply in accordance with Articles 2180 and 2182 of the Civil Code, as modified. (Libi v IAC) PARENTAL LIABILITY; SPECIAL CASE; ADOPTION -- Its logical that the natural parents who had actual custody of the minor are the proper parties to the suit for damages. But they rely on Child & Youth Welfare Code, Art. 36 w/c provides that a decree of adoption shall be effective as of the date the original petition was filed. Further, they rely on Art. 39 of the same code w/c provides that adoption shall dissolve the authority vested in the natural parents except where adopter is spouse of the surviving natural parent. However, the Civil Code provides that the basis of parental liability for torts of a minor child is the relationship existing bet parents & minor child LIVING with them & over whom law presumes the parents exercise supervision & control. Art. 58 of the Child & Youth Welfare Code provides that parents & guardian responsible for damages caused by child under their parental authority in accordance with the CC. FC Art. 221 likewise provides that parents are responsible for damages & injuries caused by minors living in their company & under their parental authority. Retroactivity may be allowed if it will permit the accrual of benefits/advantages in favor of the adopted child. But it wont be proper to retroactively apply a liability incurred when adopting parents had no actual or physical custody over the child. Unfair to burden them w/liability they could not have foreseen or prevented especially in this case where they were in the US at the time of the incident. Holding them liable would be inconsistent w/the philosophy & policy underlying the doctrine of vicarious liability. (Tamargo v CA)

2. TEACHERS/SCHOOLNCC 2180 (5) and (7)

FC 218. The school, its administrators and teachers, or the individual, entity or institution engaged in child are shall have SPECIAL parental authority and responsibility over the minor child while under their supervision, instruction or custody. Authority and responsibility shall apply to all authorized activities whether inside or outside the premises of the school, entity or institution. (349a)

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RPC, ART. 102. SUBSIDIARY CIVIL LIABILITY OF INNKEEPERS, TAVERNKEEPERS AND PROPRIETORS OF ESTABLISHMENTS. In default of the persons criminally liable, innkeepers, tavernkeepers, and any other persons or corporations shall be civilly liable for crimes committed in their establishments, in all cases where a violation of municipal ordinances or some general or special police regulation shall have been committed by them or their employees. Innkeepers are also subsidiarily liable for the restitution of goods taken by robbery or theft within their houses from guests lodging therein, or for the payment of the value thereof, provided that such guests shall have notified in advance the innkeeper himself, or the person representing him, of the deposit of such goods within the inn; and shall furthermore have followed the directions which such innkeeper or his representative may have given them with respect to the care and vigilance over such goods. No liability shall attach in case of robbery with violence against or intimidation of persons unless committed by the innkeeper's employees. RPC, ART. 103. SUBSIDIARY CIVIL LIABILITY OF OTHER PERSONS. The subsidiary liability established in the next preceding article shall also apply to employers, teachers, persons, and corporations engaged in any kind of industry for felonies committed by their servants, pupils, workmen, apprentices, or employees in the discharge of their duties. IN THEIR CUSTODYThe protective and supervisory custody that the school and its heads and teachers exercise over the pupils and students for as long as they are at attendance in the school, including recess time. There is nothing in the law that requires that they must live and board in the school (Palisoc v Brillantes) NOT CO-TERMINUS WITH THE SEMESTERRegardless of whether the semester has not yet begun or has already ended. As long as it can be shown that the student is in the school premises in pursuance of a legitimate student objective, in the exercise of a legitimate student right, and even in the enjoyment of a legitimate student right, and even in t he enjoyment of a legitimate student privilege , the responsibility of the school authorities over the student continues. Indeed, even if the student should be doing nothing more than relaxing in the campus in the company of his classmates and friends and enjoying the ambience and atmosphere of the school, he is still within the custody and subject to the discipline of the school authorities under the provisions of Article 2180. (Amadora v CA) < Refers to the influence exerted on the child and not mere physical control < Thus, the injuries caused by the students, the teacher and not the parent shall be held responsible if the tort was committed = within the premises of the school at any time its authority could be validly exercised over him RECESScontemplates a situation of temporary adjournment of school activities where the student still remains within call of his mentor and is not permitted to leave the school premises, or the area within which the school activity is conducted. Recess by its nature does not include dismissal. (Salvosa v IAC) FACT OF ENROLLMENTmere fact of being enrolled or being in the premises of a school without more does not constitute "attending school" or being in the "protective and supervisory custody' of the school, as contemplated in the law. (Salvosa v IAC)

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NOTE: Salvosa mitigates the effects of Amadora " School: ACAD + Institute of Arts and Trade " time: dismissal, where: in parking lot of school, against who: student of University of Baguio " Amadora: legitimate student objective!Victim is own student " Salvosa: applied Palisoc, definition of custody!Victim is student of another school Ponente in Salvosa forgot Amadoradecided 6 months earlier. So to reconcile both cases: If victim is a student of schoolAmadora; If victim is NOT a student of schoolSalvosa AUTHORIZED ACTIVITIESSpecial parental authority applies to field trips, excursions and other affairs of the pupils and students outside the school premises whenever authorized by the school or its teachers. NOTE: Under FC 219, if the person under custody is a minor, those exercising special parental authority are principally and solidarily liable for damages caused by the acts or omissions of the unemancipated minor while under their supervision, instruction, or custody. However, for petitioner to be liable, there must be a finding that the act or omission considered as negligent was the proximate cause of the injury caused because the negligence must have a causal connection to the accident. (St. Marys v Carpitanos) SCOPEALL schools, academic as well as technical or vocational schools < Where the school is academic in naturethe tort committed by the student will attach to the teacher in charge of such student (first part of the provision) < In case of establishment of trades and arts, it is the head thereof, and only he, who shall be held liable as an exception to the general rule (Amadora v CA) SAME; REDDENDO SINGULA SINGULIS There is no substantial distinction between an academic and a non-academic school insofar as torts committed by their students are concerned. The same vigilance is expected from the teacher over the students under his control and supervision, whatever the nature of the school he is teaching. (Amadora v CA) DEFENSE FOR THE TEACHER AND THE SCHOOLas long as defendant can show that he had taken the necessary precautions to prevent the injury complained of, he can exonerate himself from the liability imposed by Art 2180. NOT A DEFENSE: AGEResponsibility of teacher not only when he is acting in LOCUS PARENTIS; not required that the student is a minor. The teacher is held answerable by the law for the act of the student under him regardless of the students age. (Amadora) RATIONALE in loco parentis, and are called upon to exercise reasonable supervision over the conduct of the child. (Palisoc) Hence, when the parent places the child under the effective authority of the teacher, the teacher, and not the parent should be the one answerable for the torts committed while under his custody, for the very reason that the parent is not supposed to interfere with the discipline of the school nor with the authority and supervision of the teacher while the child is under instruction. If there is no authority, there can be no responsibility. (JBL Reyes dissent in Mercado as cited in Palisoc) The protective custody of the school heads and teachers is mandatorily substituted for that of the parents, and hence it becomes their obligation as well as that of the school itself to provide proper supervision of the students activities during the whole time that they are at attendance in the school, including recess time, as well as to take the necessary precautions to protect the students in their

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custody from dangers and hazards that would reasonably be anticipated, including injuries that some students themselves may inflict willfully or through negligence on their fellow students. (Palisoc) TEACHER AS EMPLOYEE OF SCHOOL;WHEN NOT APPLICABLE -- The Court has consistently applied the "four-fold test" to determine the existence of EER. Control being the most impt. The school directress testified that Aquinas had an agreement with a congregation of sisters under which, in order to fulfill its ministry, the congregation would send religion teachers to Aquinas to provide catechesis to its students. Aquinas insists that it was not the school but Yamyamin's religious congregation that chose her for the task of catechizing the school's grade three students, much like the way bishops designate the catechists who would teach religion in public schools. Under the circumstances, it was quite evident that Aquinas did not have control over Yamyamin's teaching methods. Of course, Aquinas still had the responsibility of taking steps to ensure that only qualified outside catechists are allowed to teach its young students. In this regard, it cannot be said that Aquinas took no steps to avoid the occurrence of improper conduct towards the students by their religion teacher. (Aquinas v Inton)

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3. OWNERS/MANAGERS OF ESTABLISHMENTS/EMPLOYERSNCC 2180 (4) & (5); RPC 102 & 103, supra
REQUISITES(1) That the employee was chosen by the employer personally or through another; (2) That the service to be rendered in accordance with orders which the employer has the authority to give at all times; and (3) That the illicit act of the employee was on the occasion or by reason of the functions entrusted to him. (Jayme v Apostol) EER MUST BE PROVED This cannot be presumed. A driver of a Municipal Mayor, for example, is not necessarily the employee of the latter. The requisites of the 4-fold test on ER-EE relationship must concur. MANAGER used in the sense of "employer". EXAMPLES The terms "employers" and "owners and managers of an establishment or enterprise" does not embrace the manager of a corporation owning a truck, the reckless operation of which allegedly resulted in the vehicular accident from which the damage arose. May also be considered an employee of the employer (Phil Rabbit v Phil American) Plaintiff was not the master or principal of the driver of the truck, but only an intermediate and superior employee or agent. This being so, the doctrine of respondeat superior or qui facit per alium is not properly applicable to him. His power to direct and control the driver was not as master, but only by virtue of the fact that they were both employed by Kruse, and the further fact that as Kruse's agent he was delegated Kruse's authority over the driver. (Handley v Lombardi) DUTY OF EMPLOYER -- An employer is expected to impose upon its employees the necessary discipline called for in the performance of any act indispensable to the business and beneficial to their employer. (Filamer v IAC)

WHEN Significantly, to make the employer liable under paragraphs 5 and 6 of Article 2180, it must be established that the injurious or tortuous act was committed at the time the employee was performing his functions. (Jayme v Apostol) RESPONSIBILITY FOR SERVANTS ACTS; BOC -- The contract of defendant to transport plaintiff carried with it, by implication, the duty to carry him in safety and to provide safe means of entering and leaving its trains (CC 1258). That duty, being contractual, was direct and immediate, and its non-performance could not be excused by proof that the fault was morally imputable to defendant's servants. (Cangco v Manila Railroad) PRESUMPTION OF NEGLIGENCEOnce negligence on the part of the employee is established, a presumption instantly arises that the employer was negligent in the selection and/or supervision of said employee. To rebut this presumption, the employer must present adequate and convincing proof that he exercised care and diligence in the selection and supervision of his employees. (Lampesa v De Vera) DISTINCTION BET. PARS. 4 AND 5 th th th 4 par 5 par (expansion of 4 )* owners and managers of an employers in general, whether or not establishment or enterprise engaged in any business or industry negligent acts of employees committed negligent acts of employees acting within either in the service of the branches or on the scope of their assigned task. the occasion of their functions *For, admittedly, employees oftentimes wear different hats. They perform functions which are beyond their office, title or designation but which, nevertheless, are still within the call of duty. (Castilex v Vasquez) EXAMPLE; NOT W/IN THE SCOPEAn employee who uses his employer's vehicle in going from his work to a place where he intends to eat or in returning to work from a meal is not ordinarily acting within the scope of his employment in the absence of evidence of some special business benefit to the employer. In the same vein, traveling to and from the place of work is ordinarily a personal problem or concern of the employee, and not a part of his services to his employer. Theres some special benefit when an employee is enabled to reduce his time-off and so devote more time to the performance of his duties supports the finding that an employee is acting within the scope of his employment while so driving the vehicle. OR having the employee drive home the employer's vehicle to be at work earlier (Castilex) EXAMPLE; W/IN THE SCOPECLIENT CALLSthe service car assigned to Li by Alexander Commercial, Inc. therefore enabled both Li - as well as the corporation - to put up the front of a highly successful entity, increasing the latters goodwill before its clientele. It also facilitated meeting between Li and its clients by providing the former with a convenient mode of travel. (Valenzuela v CA) USE OF EMPLOYERS PROPERTY OUTSIDE REGULAR WORKING HOURS An employer who loans his motor vehicle to an employee for the latter's personal use outside of regular working hours is generally not liable for the employee's negligent operation of the vehicle during the period of permissive use, even where the employer contemplates that a regularly assigned motor vehicle will be used by the employee for personal as well as business purposes and there is some incidental benefit to the employer. Even where the employee's personal purpose in using the vehicle has been accomplished and he has started the return trip to his house where the vehicle is normally kept, it has been held that he has not resumed his

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employment, and the employer is not liable for the employee's negligent operation of the vehicle during the return trip. (Castilex) APPLICABILITYThe foregoing principles and jurisprudence are applicable in our jurisdiction albeit based on the doctrine of respondent superior, not on the principle of bonus pater familias as in ours. Whether the fault or negligence of the employee is conclusive on his employer as in American law or jurisprudence, or merely gives rise to the presumption juris tantum of negligence on the part of the employer as in ours, it is indispensable that the employee was acting in his employer's business or within the scope of his assigned task. (Castilex) SAME; CONTRARY DOCTRINE -- Under the civil law, an employer is liable for the negligence of his employees in the discharge of their respective duties, the basis of which liability is not respondeat superior, but the relationship of pater familias, which theory bases the liability of the master ultimately on his own negligence and not on that of his servant. (Valenzuela v CA) BURDEN TO REBUT PRESUMPTIONThe fact that Funtecha was not the school driver or was not acting within the scope of his janitorial duties does not relieve the petitioner of the burden of rebutting the presumption juris tantum that there was negligence on its part either in the selection of a servant or employee, or in the supervision over him. The petitioner has failed to show proof of its having exercised the required diligence of a good father of a family over its employees Funtecha and Allan. (Filamer) DEFENSEExercised the diligence of a good father of a family, both in the selection of the employee and in the supervision of the performance of his duties. SELECTIONexamine them as to their qualifications, experience, and service records. SUPERVISIONformulate standard operating procedures, monitor their implementation, and impose disciplinary measures for their breach. To establish compliance with these requirements, employers must submit concrete proof, including documentary evidence. (Mercury Drug v Huang) CIVIL CODE VS. LABOR CODE -- It bears stressing that the action was premised on the recovery of damages as a result of QD against both NPC and PHESCO, hence, it is the CC and not LC which is the applicable law in resolving this case. It is apparent that NCC 2180 will determine the liability of NPC in a civil suit for damages instituted by an injured person for any negligent act of the employees of the "labor only" contractor. This is consistent with the ruling that a finding that a contractor was a "labor-only" contractor is equivalent to a finding that an EER existed between the owner (principal contractor) and the "labor-only" contractor, including the latter's workers. (NPC v CA) EER; PROFESSIONALSPrivate hospitals hire, fire and exercise real control over their attending and visiting consultant staff. In assessing whether such a relationship in fact exists, the control test is determining. While consultants are not, technically employees, a point which respondent hospital asserts in denying all responsibility for the patients condition, the control exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with the exception of the payment of wages. Accordingly, on the basis of the foregoing, for the purpose of allocating responsibility in medical negligence cases, an employer-employee relationship in effect exists between hospitals and their attending and visiting physicians. ESTOPPEL; DOCTRINE OF APPARENT AUTHORITY

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PUBLIC DIRECTORYPSI publicly displays in the lobby of the Medical City Hospital the names and specializations of the physicians associated or accredited by it, including those of Dr. Ampil and Dr. Fuentes, leading the public to believe that it vouched for their skill and competence." The doctrine of apparent authority is a species of the doctrine of estoppel. NCC 1431[t]hrough estoppel, an admission or representation is rendered conclusive upon the person making it, and cannot be denied or disproved as against the person relying thereon. Estoppel rests on this rule: Whether a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it. (Agana, 2008) HOWEVER, PSIs hospital liability based on ostensible agency and corporate negligence applies only to this case, pro hac vice. It is not intended to set a precedent and should not serve as a basis to hold hospitals liable for every form of negligence of their doctors-consultants under any and all circumstances. The ruling is unique to this case, for the liability of PSI arose from an implied agency with Dr. Ampil and an admitted corporate duty to Natividad. As it happened, PSI took no heed of the record of operation and consequently did not initiate a review of what transpired during Natividads operation. Rather, it shirked its responsibility and passed it on to others to Dr. Ampil whom it expected to inform Natividad, and to Natividad herself to complain before it took any meaningful step. By its inaction, therefore, PSI failed its own standard of hospital care. It committed corporate negligence. It should be borne in mind that the corporate negligence ascribed to PSI is different from the medical negligence attributed to Dr. Ampil. The duties of the hospital are distinct from those of the doctor-consultant practicing within its premises in relation to the patient; hence, the failure of PSI to fulfill its duties as a hospital corporation gave rise to a direct liability to the Aganas distinct from that of Dr. Ampil. 4. THE STATENCC 2180 (6) The only way to make the State liable for the acts of an ORDINARY agent is if it is a joint tortfeasor RULE; OLD CIVIL CODE -- Article 1903(5): The state is liable in this sense when it acts through a special agent!not responsible for the damages suffered by private individuals due to the acts performed by its employees in the discharge of their functions in office because it cannot be presumed that the state acted with fault or negligence. Further, states that the responsibility of the state is limited where it acts through a SPECIAL agent, empowered by a definite order or commission to perform some act or definite purpose which gives rise to the claim. EXAMPLE; ORDINARYchauffer of the ambulance of the General Hospital is not a special agent within the meaning of paragraph 5 of Article 1903 of the Civil Code. (Merritt v Government) There being no showing that whatever negligence may be imputed to the Emergency Control Administration or its officers, was done by an special agent, in storing gasoline in warehouse of the ECA, the government is not responsible for the damages caused through such negligence. (Rosete v Auditor General) LGU; GOVERNMENTAL FUNCTIONSThe municipality is not liable for the acts of its officers or agents in the performance of its governmental functions. Governmental affairs do not lose their governmental character by being delegated to

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the municipal governments. Nor of the municipality which, for convenience the state allows the municipality to select, change their character. (Mendoza v De Leon) SAME; PROPRIETARY FUNCTIONSA municipality is not exempt from liability for the negligent performance of its corporate or proprietary or business functions. In the administration of its patrimonial property, it is to be regarded as a private corporation or individual so far as its liability to third persons on contract or in tort is concerned. Its contracts, validly entered into, may be enforced and damages may be collected from it for the torts of its officers or agents within the scope of their employment in precisely the same manner and to the same extent as those of private corporations or individuals. As to such matters the principles of respondeat superior applies. It is for these purposes that the municipality is made liable to suits in the courts. (Mendoza v De Leon) NCC; SAME WITH OLD; EXCEPTION -- The Court ruled that the NIA was indeed a government agency but they were invested with a corporate personality separate and distinct from the government. The National Irrigation Administration was not created for purposes of local government. While it may be true that the NIA was essentially a service agency of the government aimed at promoting public interest and public welfare, such fact does not make the NIA essentially and purely a "governmentfunction" corporation. NIA was created for the purpose of "constructing, improving, rehabilitating, and administering all national irrigation systems in the Philippines, including all communal and pump irrigation projects." Certainly, the state and the community as a whole are largely benefited by the services the agency renders, but these functions are only incidental to the principal aim of the agency, which is the irrigation of lands. (Fontanilla v Maliaman)

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government for redress of grievances; (14) The right to be free from involuntary servitude in any form; (15) The right of the accused against excessive bail; (16) The right of the accused to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witness in his behalf; (17) Freedom from being compelled to be a witness against one's self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make such confession, except when the person confessing becomes a State witness; (18) Freedom from excessive fines, or cruel and unusual punishment, unless the same is imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional; and (19) Freedom of access to the courts. In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and mat be proved by a preponderance of evidence. The indemnity shall include moral damages. Exemplary damages may also be adjudicated. The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal Code or other penal statute. PURPOSEput an end to official abuse by plea of good faith (MHP Garments v. CA) Patter REQUIRED: violation of constitutional right of the plaintiff; NOTE: additional requirement in Vinzons Chato 2008: particular wrong or injury (to hold a public officer liablesee discussion below) NOT REQUIREDM ALICE OR BAD FAITH the very nature of Article 32 is that the wrong may be civil or criminal. It is not necessary therefore that there should be malice or bad faith. To make such a requisite would defeat the main purpose of Article 32 which is the effective protection of individual rights. Public officials in the past have abused their powers on the pretext of justifiable motives or good faith in the performance of their duties.(MHP Garments v. CA) EXAMPLE Warrantless search and seizure of unlicensed boy scout uniforms conducted by MHP employee with PC aid. Despite the sufficiency of time, they didnt apply for a warrant. In doing so, they took the risk of suit for damages in case the seizure would proved to violate the right of private respondents against unreasonable search and seizure, which in the case at bench, is. (MHP Garments v CA) PERSONS LIABLE D IRECT AND INDIRECT Persons who are directly, as well as indirectly responsible for the transgression of joint tortfeasors. (MHP Garments v. CA) o EXAMPLE Petitioners instigated the raid pursuant to their covenant in the MOA to undertake the prosecution in court of all illegal sources of scouting

V. INDEPENDENT CIVIL ACTIONS A. VIOLATION OF CIVIL AND POLITICAL RIGHTS

Art. 32. Any public officer or employee, OR any private individual, who directly OR indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: (1) Freedom of religion; (2) Freedom of speech; (3) Freedom to write for the press or to maintain a periodical publication; (4) Freedom from arbitrary or illegal detention; (5) Freedom of suffrage; (6) The right against deprivation of property without due process of law; (7) The right to a just compensation when private property is taken for public use; (8) The right to the equal protection of the laws; (9) The right to be secure in one's person, house, papers, and effects against unreasonable searches and seizures; (10) The liberty of abode and of changing the same; (11) The privacy of communication and correspondence; (12) The right to become a member of associations or societies for purposes not contrary to law; (13) The right to take part in a peaceable assembly to petition the

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supplies. The raid was conducted with the active participation of their employee. By standing by and apparently assenting thereto, he was liable to the same extent as the officers themselves. So with petitioner corporation, which even received for safekeeping the goods unreasonably seized by the PC raiding team and refused to surrender them for quite a time despite the dismissal of its complaint for unfair competition. (MHP Garments v. CA) P RIVATE INDIVIDUALS The Code Commission thus deemed it necessary to hold not only public officers but also private individuals civilly liable for violation of rights enumerated in Article 32 of the Civil Code. That is why it is not even necessary that the defendant under this Article should have acted with malice or bad faith, otherwise, it would defeat its main purpose, which is the effective protection of individual rights. It suffices that there is a violation of the constitutional right of the plaintiff (Silahis v. Soluta) o EXAMPLE warrantless search and seizure of union office done by hotel management. Respondents, being the lawful occupants of the office, had the right to raise the question of validity of the search and seizure (Silahis v. Soluta) P UBLIC OFFICER o V INZONS CHATO (2007) N OT LIABLE FOR damages which a person may suffer arising from the just performance of his official duties and within the scope of his assigned tasks. An officer who acts within his authority to administer the affairs of the office which he/she heads is not liable for damages that may have been caused to another, as it would virtually be a charge against the Republic, which is not amenable to judgment for monetary claims without its consent. L IABLE FOR in his/her private capacityacts done in the course of the performance of the functions of the office, where said public officer: (1) acted with malice, bad faith, or negligence; or (2) where the public officer violated a constitutional right of the plaintiff . L AW APPLICABLE NCC (more specific)NCCa special and specific provision that holds a public officer liable for and allows redress from a particular class of wrongful acts that may be committed by public officers. VS 38 of the Administrative Codebroadly deals with civil liability arising from errors in the performance of duties EXAMPLE The complaint in the instant case was brought under Article 32 of the Civil Code. Considering that bad faith and malice are not necessary in an action based on Article 32 of the Civil Code, the failure to specifically allege the same will not amount to failure to state a cause of action. The courts below therefore correctly denied the motion to dismiss on the ground of failure to state a cause of action, since it is enough that the complaint avers a violation of a constitutional right of the plaintiff. (VinzonsChato v. Fortune (2007)) o V INZONS C HATO (2008) TRANSLATED RULE IN NCC 32 AS an individual can hold a public officer personally liable for damages on account of an act or omission that violates a constitutional right only if it results in a particular wrong or injury to the former. D UTIES ; K INDS

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1. Of Duties to the Publicduty is owing primarily to the public collectively --- to the body politicnot to any particular individual ( no one individual could single himself out and assert that they were duties owing to him alone ); who act for the public at large, and who are ordinarily paid out of the public treasury. (e.g. governor owes a duty to the public to see that the laws are properly executed, members of the legislature owe a duty to the public to pass only wise and proper laws; highway commissioners owe a duty that they will be governed only by considerations of the public good in deciding upon the opening or closing of highways) 2. Of Duties to Individualswhile they owe to the public the general duty of a proper administration of their respective offices, yet become, by reason of their employment by a particular individual to do some act for him in an official capacity, under a special and particular obligation to him as an individual. They serve individuals chiefly and usually receive their compensation from fees paid by each individual who employs them. (e.g. sheriff or constable in serving civil process for a private suitor, a recorder of deeds in recording the deed or mortgage of an individual, a clerk of court in entering up a private judgment, a notary public in protesting negotiable paper, an inspector of elections in passing upon the qualifications of an elector, each owes a general duty of official good conduct to the public, but he is also under a special duty to the particular individual concerned which gives the latter a peculiar interest in his due performance) N OT LIABLE WHEN what is involved is a duty owing to the public in general, an individual cannot have a cause of action for damages against the public officer, even though he may have been injured by the action or inaction of the officer. In such a case, there is damage to the individual but no wrong to him. In performing or failing to perform a public duty, the officer has touched his interest to his prejudice; but the officer owes no duty to him as an individual. The remedy in this case is not judicial but political. E XAMPLE BIR deputy commissionervested with quasilegislative or rule-making power, owes a duty to the public to promulgate rules which are compliant with the requirements of valid administrative regulations. But it is a duty owed not to the Fortune Tobacco Corp alone, but to the entire body politic who would be affected, directly or indirectly, by the administrative rule. L IABLE WHEN the complaining individual suffers a particular or special injury on account of the public officers improper performance or nonperformance of his public duty. Damage alone does not constitute a wrong E XAMPLE No particular injury is alleged to have been sustained by the respondent Petitioner took nothing from the respondent, as the latter did not pay a single centavo on the tax assessment levied by the former by virtue of RMC 37-93. Other ratio usedCIR v CA says RMC-37-93 might have likewise infringed on uniformity of taxation, which is NOT an express finding; also, SIR SAYS: Nachura places a fall back at the end by saying that it is a suit against the State since

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Tobacco did not impute negligence or bf to BIR Deputy, any money judgment against her will be assumed by the State.

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B. DEFAMATION, FRAUD, PHYSICAL INJURIES

Art. 33. In cases of defamation, fraud, and physical injuries a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence. NATUREAN ACTION AGAINST EE S PRIMARY CIVIL LIABILITY ; NOT ER S SUBSIDIARY CIVIL LIABILITY what this article 33 authorizes is an action against the employee on his primary civil liability. While a separate and independent civil action for damages may be brought against the employee under Article 33 of the Civil Code, no such action may be filed against the employer on the latter's subsidiary civil liability because such liability is governed not by the Civil Code but by the Penal Code, under which conviction of the employee is a condition sine qua non for the employer's subsidiary liability. (Joaquin v. Aniceto) E NTIRELY DIFFERENT AND UNRELATED TO CRIMINAL ASPECT Article 33 contemplates a civil action for the recovery of damages that is entirely unrelated to the purely criminal aspect of the case. A civil action for libel under this article shall be instituted and prosecuted to final judgment and proved by preponderance of evidence separately from and entirely independent of the institution, pendency or result of the criminal action because it is governed by the provisions of the NCC and not by the RPC governing the criminal offense charged and the civil liability arising therefrom. (Arafiles v. Phil Journalists) 2 THINGS WORTH NOTING ACCDG TO MADEJA V CARO : 1. INDEPENDENT CIVIL ACTION; EX DELICTOthe civil action for damages which it allows to be instituted is ex-delicto. This is manifest from the provision which uses the expressions "criminal action" and "criminal prosecution." While the State is the complainant in the criminal case, the injured individual is the one most concerned because it is he who has suffered directly. He should be permitted to demand reparation for the wrong which peculiarly affects him. o SIR SAYSNote Tolentinos comment: In these cases, a civil action may be filed independently of the criminal action, even if there has been no reservation made by the injured party; the law itself in this article makes such reservation; but the claimant is not given the right to determine whether the civil action should be scheduled or suspended until the criminal action has been terminated. The result of the civil action is thus independent of the result of the civil action." EXCEPTION; BP 22The criminal action for violation of Blg. 22 shall be deemed to necessarily include the corresponding civil action, and no reservation to file such civil action separately shall be allowed or recognized. Purpose: help declog court dockets which are filed with BP 22 cases as creditors use the courts as collectors (Heirs of Simon v. Chan) 2. TERMS USED IN ORDINARY SENSE D EFAMATION AND FRAUD no specific provisions in the Revised Penal Code using these terms as means of offenses defined therein, so that these two

terms defamation and fraud must have been used not to impart to them any technical meaning in the laws of the Philippines, but in their generic sense. P HYSICAL INJURIES also not used in specific sense as a crime defined in the Revised Penal Code, for it is difficult to believe that the Code Commission would have used terms in the same article-some in their general and another in its technical sense; should be understood to mean bodily injury. It is not the crime of physical injuries defined in the Revised Penal Code. It includes not only physical injuries but consummated, frustrated and attempted homicide . o D ISTINGUISH FROM C RIMINAL NEGLIGENCE ; N O INDEPENDENT ACTION FOR DAMAGES i.e. reckless imprudenceis not one of the three crimes mentioned in Article 33 of the Civil Code which authorizes the institution of an independent civil action, that is, of an entirely separate and distinct civil action for damages, which shall proceed independently of the criminal prosecution and shall be proved only by a preponderance of evidence. Citing People v Buan, SC said: the offense of criminal negligence under RPC 365 lies in the execution of an imprudent or negligent act that, if intentionally done, would be punishable as a felony. The law penalizes thus the negligent or careless act, not the result thereof. The gravity of the consequence is only taken into account to determine the penalty; it does not qualify the substance of the offense." (Corpus v. Paje) Example: The charge against Paje was for RIRHcriminal negligence resulting in homicide (death of Celemente Marcia) and double PI suffered by 2 other personsNOT for homicide AND physical injuries. Hence, RIRH or criminal negligence comes under the general rule that the acquittal of the defendant in the criminal action is a bar to his civil liability based upon the same criminal act notwithstanding that the injured party reserved his right to institute a separate civil action. NOTE: In Aquinos concurring opinion in Madeja v CaroCorpus v Paje, which says that reckless imprudence is not included in NCC33 is not authoritative doctrine because it was concurred in by only 5 Justices, 4 Justices concurred in the result. I N RELATION TO NCC 29 the offended party can file an independent civil action for damages when the acquittal of the accused is based on failure of the prosecution to prove his guilt beyond reasonable doubt, even when there was no express reservation. Art 29. When the accused in a criminal prosecution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted. Such action requires only a preponderance of evidence. Upon motion of the defendant, the court may require the plaintiff to file a bond to answer for damages in case the complaint should be found to be malicious. Article 29 of the Civil Code does not state that the right to file an independent civil action for damages (under said article) can be availed of only in offenses not arising from a tortious act. The only requisite set forth therein for the exercise of the right to file a civil action for damages is that the accused must have been acquitted in the

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criminal action based on reasonable doubt. It is a well known maxim in statutory construction that where the law does not distinguish, the courts should not distinguish. ON THE OTHER HAND, Article 33 of the Civil Code assumes a defamation, fraud, or physical injuries intentionally committed. The death of the deceased in the case at bar was alleged to be the result of criminal negligence, i.e., not inflicted with malice. Criminal negligence under RPC 365 consists in the execution of an imprudent or negligent act that, if intentionally done, would be punishable as a felony. As reckless imprudence or criminal negligence is not mentioned in NCC 33, no independent civil action for damages arising from reckless imprudence or criminal negligence may be instituted under said article. (Bonite v Zosa) o E VEN IN THE ABSENCE OF NEGLIGENCE petitioners opted to file an independent civil action but respondents opposed on the ground that the same is founded on a delict, not QD, since the shooting was not attended by negligence. Held: Since Article 2176 covers not only acts of negligence but also acts which are intentional and voluntary, it was therefore erroneous on the part of the trial court to dismiss petitioner's complaint simply because it failed to make allegations of attendant negligence attributable to private respondents. (Dulay v. CA) " N OTE : In this case respondents submit that the word intentional in the Andamo case is obiter and should be read as voluntary since intent cannot be coupled with negligence as defined in RPC 365SC Held: In the absence of more substantial reasons, this Court will not disturb the above doctrine on the coverage of Article 2176 " BUT SIR SAYS: In Andamo, SC held that QD include crimes, whether intentional (voluntary) or negligent. The flooding of neighbor's property is the result of intentional establishment of contrivances. No need to discuss intentional acts so obiter. 2176 should be limited to negligent acts. Accident is not the same as negligent. Intentional is not the same as voluntary E FFECT ; R ECOVERY OF DAMAGES Having reserved and filed in the Regional Trial Court of Manila a separate civil action to recover the civil liability of the accused arising from the crimes charged, the heirs of the deceased Rogelio Jervoso, are precluded from recovering damages in the criminal case against the accused, for they are not entitled to recover damages twice for the same criminal act of the accused. The trial court erred in awarding to the heirs of Rogelio Jervoso in the criminal case P30,000 as civil indemnity for his death despite their reservation to file a separate civil action for that purpose. The Court of Appeals likewise erred in affirming the award (Jervoso v People) E FFECT ; P RESCRIPTION An action based on a quasi-delict must be instituted within 4 years, which begins to run, "from the day (the action) may be brought," which means from the day the quasi-delict occurred or was committed. The civil action for damages could have been

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commenced by appellants immediately upon the death of their decedent, Cipriano Capuno, on January 3, 1953 or thereabouts, and the same would not have been stayed by the filing of the criminal action for homicide through reckless imprudence. But the complaint here was filed only on September 26, 1958, or after the lapse of more than five years. (Capuno v Pepsi Cola) DEFAMATORY made up of the twin torts of libel and slander the one being, in general, written, while the other in general is oral. In either form, defamation is an invasion of the interest in reputation and good name. This is a "relational interest" since it involves the opinion others in the community may have, or tend to have of the plaintiff. (MVRS v. Islamic) S AME ; NOT HURT FEELINGS offense of injuring a person's character, fame or reputation through false and malicious statements. It is that which tends to injure reputation or to diminish the esteem, respect, good will or confidence in the plaintiff or to excite derogatory feelings or opinions about the plaintiff. It is the publication of anything which is injurious to the good name or reputation of another or tends to bring him into disrepute. (MVRS v. Islamic) S AME ; PRINCIPLE OF RELATIONAL HARM harm to social relationships in the community in the form of defamation; as distinguished from the PRINCIPLE OF REACTIVE HARM injuries to individual emotional tranquility in the form of an infliction of emotional distress (MVRS v. Islamic) R EQUISITES (1) published a statement that was (2) defamatory (3) of and concerning the plaintiff. S AME ; R EAD IN WHOLE a publication claimed to be defamatory must be read and construed in the sense in which the readers to whom it is addressed would ordinarily understand it. So, the whole item, including display lines, should be read and construed together, and its meaning and signification thus determined. Arafiles v. Phil Journalists ExampleRespondents could of course have been more circumspect in their choice of words as the headline and first seven paragraphs of the news item give the impression that a certain director of the NIAS actually committed the crimes complained of by Emelita. The succeeding paragraphs (in which petitioner and complainant Emelita were eventually identified) sufficiently convey to the readers, however, that the narration of events was only an account of what Emelita had reported at the police headquarters. Every citizen of course has the right to enjoy a good name and reputation, but we do not consider that the respondents, under the circumstances of this case, had violated said right or abused the freedom of the press. The newspapers should be given such leeway and tolerance as to enable them to courageously and effectively perform their important role in our democracy. In the preparation of stories, press reporters and [editors] usually have to race with their deadlines; and consistently with good faith and reasonable care, they should not be held to account, to a point of suppression, for honest mistakes or imperfection in the choice of words (Arafiles v. Phil Journalists) G ROUP L IBEL a prime consideration is the public perception of the size of the group and whether a statement will be interpreted to refer to every member. Where the defamation is alleged to have been directed at a group or class, it is essential that the statement must be so sweeping or all-embracing as to apply to every individual in that group or class, or sufficiently specific so that each

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individual in the class or group can prove that the defamatory statement specifically pointed to him, so that he can bring the action separately, if need be (MVRS v. Islamic) S AME ; C LASS SUIT important elementadequacy of representation, as shown by: (a) whether the interest of the named party is coextensive with the interest of the other members of the class; (b) the proportion of those made parties as it so bears to the total membership of the class; and, (c) any other factor bearing on the ability of the named party to speak for the rest of the class (MVRS v. Islamic) S AME ; S IZE as the size of these groups increases, the chances for members of such groups to recover damages on tortious libel become elusive. This principle is said to embrace two (2) important public policies: first, where the group referred to is large, the courts presume that no reasonable reader would take the statements as so literally applying to each individual member; and second, the limitation on liability would satisfactorily safeguard freedom of speech and expression, as well as of the press, effecting a sound compromise between the conflicting fundamental interests involved in libel cases factor bearing on the ability of the named party to speak for the rest of the class (MVRS v. Islamic)

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

D. CATCH ALL INDEPENDENT CIVIL ACTION

Art. 35. When a person, claiming to be injured by a criminal offense, charges another with the same, for which no independent civil action is granted in this Code or any special law, but the justice of the peace finds no reasonable grounds to believe that a crime has been committed, or the prosecuting attorney refuses or fails to institute criminal proceedings, the complaint may bring a civil action for damages against the alleged offender. Such civil action may be supported by a preponderance of evidence. Upon the defendant's motion, the court may require the plaintiff to file a bond to indemnify the defendant in case the complaint should be found to be malicious.

VI. HUMAN RELATIONS TORTS

Under any of NCC 19, 20 and 21, an act which causes injury to another may be made the basis for an award of damages. (Albenson v CA)

A. ABUSE OF RIGHTS
Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.

NATUREthe principle of abuse of rights, sets certain standards which must be observed not only in the exercise of one's rights but also in the performance of one's duties. These standards are the following: to act with justice; to give everyone his due; and to observe honesty and good faith. The law, therefore, recognizes a primordial limitation on all rights; that in their exercise, the norms of human conduct set forth in Article 19 must be observed. A right, though by itself legal because recognized or granted by law as such, may nevertheless become the source of some illegality. When a right is exercised in a manner which does not conform with the norms enshrined in Article 19 and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be held responsible. PURPOSEArticle 19 was intended to expand the concept of torts by granting adequate legal remedy for the untold number of moral wrongs which is impossible for human foresight to provide specifically in statutory law. In civilized society, men must be able to assume that others will do them no intended injury that others will commit no internal aggressions upon them; that their fellowmen, when they act affirmatively will do so with due care which the ordinary understanding and moral sense of the community exacts and that those with whom they deal in the general course of society will act in good faith. The ultimate thing in the theory of liability is justifiable reliance under conditions of civilized society. ELEMENTS (1) There is a legal right or duty; (2) which is exercised in bad faith; (3) for the sole intent of prejudicing or injuring another. (Albenson v CA) G OOD FAITH Good faith refers to the state of the mind which is manifested by the acts of the individual concerned. It consists of the intention to abstain from taking an unconscionable and unscrupulous advantage of another. Good faith is presumed and he who alleges bad faith has the duty to prove the same. (Diaz v Davao Light) B AD FAITH Bad faith, on the other hand, does not simply connote bad judgment to simple negligence, dishonest purpose or some moral obloquy and conscious doing of a wrong, a breach of known duty due to some motives or interest or illwill that partakes of the nature of fraud (Diaz v Davao Light) TEST ACCDG TO TOLENTINOModern jurisprudence does not permit acts which, although not unlawful, are anti-social. There is undoubtedly an abuse of right when it is exercised for the only purpose of prejudicing or injuring another. When the objective of the actor is illegitimate, the illicit act cannot be concealed under the guise of exercising a right. The principle does not permit acts which, without utility or legitimate purpose cause damage to another, because they violate the concept of social solidarity which considers law as rational and just. Hence, every abnormal exercise of a right, contrary to its socio-economic purpose, is an abuse that will give rise to liability. The exercise of a right must be in accordance with the purpose for which it was established, and must not be excessive or unduly harsh; there must be no intention to injure another . Ultimately, however, and in practice, courts, in the sound exercise of their discretion, will have to determine all the facts and circumstances when the exercise of a right is unjust, or when there has been an abuse of right. (Barons Marketing v CA) IN RELATION TO DAMNUM ABSQUE INJURIAmutually exclusiveone who merely exercises ones rights does no actionable injury and cannot be held liable for damages. This principle does not, however, apply when there is an abuse of a person's right, or when the exercise of this right is suspended or extinguished

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pursuant to a court order. Indeed, in the availment of one's rights, one must act with justice, give their due, and observe honesty and good faith The exercise of a right ends when the right disappears, and it disappears when it is abused, especially to the prejudice of others.(Amonoy v Gutierrez) I NJURY is the illegal invasion of a legal right; DAMAGE is the loss, hurt or harm which results from the injury; and DAMAGES are the recompense or compensation awarded for the damage suffered. Thus, there can be damage without injury in those instances in which the loss or harm was not the result of a violation of a legal duty. In such cases, the consequences must be borne by the injured person alone; the law affords no remedy for damages resulting from an act which does not amount to a legal injury or wrong. These situations are often called DAMNUM ABSQUE INJURIA . (Diaz v Davao Light) IN RELATION TO NCC 20 AND 21 R EMEDY but while Article 19 only contains mere declarations of principles and lays down a rule of conduct for the government of human relations and for the maintenance of social order, it does not provide a remedy for its violation. Generally, an action for damages under either Article 20 or Article 21 would be proper. (Velayo v. Shell; Globe Mackay v CA) The questions of WON the principle of abuse of rights has been violated resulting in damages under Article 20 or 21 or other applicable provision of law, depends on the circumstances of each case (Globe Mackay v CA) C OMPARISON there is a common element under Articles 19 and 21, and that is, the act must be intentional. However, Article 20 does not distinguish: the act may be done either "willfully", or "negligently". E XAMPLES R IGHT TO ASSIGN CREDIT Liquidation of assets of CALI including plane. Shell preempted and attached planeDefendant taking advantage of his knowledge that insolvency proceedings were to be instituted by CALI if the creditors did not come to an understanding as to the manner of distribution of the insolvent assets among them, and believing as most probable that they would not arrive at such understanding, as it was really the case- schemed and effected the transfer of its credit to its sister corporation in the United States where CALIs plane C-54 was and by this swift and unsuspected operation efficaciously disposed of said insolvents property depriving the latter and the Assignee that was later appointed, of the opportunity to recover said plane. (Velayo v. Shell) R IGHT TO DISMISS The imputation of guilt without basis and the pattern of harassment during the investigations of Tobias transgress the standards of human conduct set forth in Article 19 of the Civil Code. The Court has already ruled that the right of the employer to dismiss an employee should not be confused with the manner in which the right is exercised and the effects flowing therefrom. If the dismissal is done abusively, then the employer is liable for damages to the employee R IGHT TO PROTECT RIGHTS The criminal complaint filed against private respondent after the latter refused to make good the amount of the bouncing check despite demand was a sincere attempt on the part of petitioners to find the

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best possible means by which they could collect the sum of money due them. Petitioners were not motivated by malicious intent or by sinister design to unduly harass private respondent, but only by a well-founded anxiety to protect their rights when they filed the criminal complaint against private respondent. Thus, an award of damages and attorney's fees is unwarranted where the action was filed in good faith. If damage results from a person's exercising his legal rights, it is damnum absque injuria (Albsenson v CA) R IGHT TO DEMOLISH FORECLOSE PROPERTY Although the acts of petitioner may have been legally justified at the outset, their continuation after the issuance of the TRO amounted to an insidious abuse of his right. Indubitably, his actions were tainted with bad faith. Had he not insisted on completing the demolition, respondents would not have suffered the loss that engendered the suit before the RTC. Verily, his acts constituted not only an abuse of a right, but an invalid exercise of a right that had been suspendedwhen he received the TRO from this Court on June 4, 1986. By then, he was no longer entitled to proceed with the demolition. (Amonoy v. Gutierrez) R IGHT TO BE PROMPTLY INFORMED OF GRADES failure to promptly inform respondent of the result of an examination and in misleading the latter into believing that he had satisfied all requirements for the course. Schools and professors cannot just take students for granted and be indifferent to them, for without the latter, the former are useless. Educational institutions are duty-bound to inform the students of their academic status and not wait for the latter to inquire from the former. The conscious indifference of a person to the rights or welfare of the person/persons who may be affected by his act or omission can support a claim for damages. Want of care to the conscious disregard of civil obligations coupled with a conscious knowledge of the cause naturally calculated to produce them would make the erring party liable. Petitioner cannot pass on its blame to the professors to justify its own negligence that led to the delayed relay of information to respondent. When one of two innocent parties must suffer, he through whose agency the loss occurred must bear it.13 The modern tendency is to grant indemnity for damages in cases where there is abuse of right, even when the act is not illicit.14 If mere fault or negligence in one's acts can make him liable for damages for injury caused thereby, with more reason should abuse or bad faith make him liable. (UE v Jader) R IGHT TO REJECT DEBTOR S OFFER TO PAY IN INSTALLMENTS private respondent was driven by very legitimate reasons for rejecting petitioner's offer and instituting the action for collection before the trial court. As pointed out by private respondent, the corporation had its own "cash position to protect in order for it to pay its own obligations." This is not such "a lame and poor rationalization" as petitioner purports it to be. For if private respondent were to be required to accept petitioner's offer, there would be no reason for the latter to reject similar offers from its other debtors. Clearly, this would be inimical to the interests of any enterprise, especially a profit-oriented one like private respondent. It is plain to see that what we have here is a mere exercise of rights, not an abuse thereof (Barons Marketing v CA) N O SOLE INTENT OF PREJUDICING OR INJURING THE PLAINTIFF

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The evidence presented by respondents negates malice or bad faith. Petitioner himself alleged in his complaint that he unilaterally installed Meter No. 86673509 to replace Meter No. 84738 after it was removed by DLPC. No less than this Court, in G.R. No. 85445, admonished petitioner and reminded him that connections of electrical service and installations of electric meters should always be upon mutual contract of the parties, and that payments for electrical consumption should also be made promptly whenever due.120 Based on these established facts, petitioner has not shown that the acts of respondent were done with the sole intent of prejudicing and injuring him. (Diaz v. Davao Light) Although it took AMEX some time before it approved Pantaleon's three charge requests, we find no evidence to suggest that it acted with deliberate intent to cause Pantaleon any loss or injury, or acted in a manner that was contrary to morals, good customs or public policy. We give credence to AMEX's claim that its review procedure was done to ensure Pantaleon's own protection as a cardholder and to prevent the possibility that the credit card was being fraudulently used by a third person. (Pantaleon v AMEX)

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NATUREthis article, adopted to remedy the "countless gaps in the statutes, which leave so many victims of moral wrongs helpless, even though they have actually suffered material and moral injury" It should "vouchsafe adequate legal remedy for that untold number of moral wrongs which it is impossible for human foresight to provide for specifically in the statutes" (Globe Mackay v CA; Velayo v. Shell) Intentional and malicious acts, with cetain exceptions are to be governed by RPC while negligent acts or omissions are to be governed by NCC 2176. In bet these opposite spectrums are injurious acts which in the absence of NCC 21, would have been beyond redress. NCC 21 fills that vacuum (Baksh v CA) E XAMPLE BPM is not an actionable wrong. (History of breach of promise suits in US and England has shown that no other action lends itself more readily to abuse by designing women and unscrupulous men) This notwithstanding, the said Code contains a provision, Article 21, which is designed to expand the concept of torts or quasi-delict in this jurisdiction by granting adequate legal remedy for the untold number of moral wrongs which is impossible for human foresight to specifically enumerate and punish in the statute books. (Baksh v CA) ELEMENTS1) there is an act which is legal; 2) but which is contrary to laws, good customs, public order and public policy; 3) and it is done with intent to injure (Albenson v. CA) Examples P REPARATION FOR WEDDING Mere breach of promise to marry is not an actionable wrong. But to formally set a wedding and go through all the abovedescribed preparation and publicity, only to walk out of it when the matrimony is about to be solemnized, is quite different. This is palpably and unjustifiably contrary to good customs for which defendant must be held answerable in damages in accordance with Article 21 aforesaid. (Wassmer v. Velez) SEDUCTIONTo constitute seduction there must in all cases be some sufficient promise or inducement and the woman must yield because of the promise or other inducement. If she consents merely from carnal lust and the intercourse is from mutual desire, there is no seduction o E XAMPLE G IVEN BY THE CODE COMMISSION An example will illustrate the purview of the foregoing norm: "A" seduces the nineteen-year old daughter of "X". A promise of marriage either has not been made, or can not be proved. The girl becomes pregnant. Under the present laws, there is no crime, as the girl is above eighteen years of age. Neither can any civil action for breach of promise of marriage be filed. Therefore, though the grievous moral wrong has been committed, and though the girl and her family have suffered incalculable moral damage, she and her parents cannot bring any action for damages. But under the proposed article, she and her parents would have such a right of action. o V OLUNTARINESS AND MUTUAL PASSION Over and above the partisan allegations, the facts stand out that for one whole year, from 1958 to 1959, the plaintiff-appellee, a woman of adult age, maintained intimate sexual relations with appellant, with repeated acts of intercourse. Such conduct is incompatible with the idea of seduction. Plainly there is here voluntariness and mutual passion; for had the appellant been deceived, had she surrendered exclusively because of the deceit, artful persuasions and wiles

B. ILLEGAL ACTS
Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same. NATUREArticle 20 speaks of the general sanction for all other provisions of law which do not especially provide for their own sanction (Tolentino, supra, p. 71). Thus, anyone who, whether willfully or negligently, in the exercise of his legal right or duty, causes damage to another, shall indemnify his victim for injuries suffered thereby (Albsenson v CA) PURPOSEthe foregoing provision provides the legal basis for the award of damages to a party who suffers damage whenever one commits an act in violation of some legal provision. This was incorporated by the Code Commission to provide relief to a person who suffers damage because another has violated some legal provision. (Garcia v. Salvador) In fine, violation of a statutory duty is negligence. Where the law imposes upon a person the duty to do something, his omission or non-performance will render him liable to whoever may be injured thereby. E XAMPLE violation Section 2 of Republic Act No. 4688, otherwise known as The Clinical Laboratory LawHbsAG test: Ranida suffered injury as a direct consequence of Garcias failure to comply with the mandate of the laws and rules aforequoted. She was terminated from the service for failing the physical examination; suffered anxiety because of the diagnosis; and was compelled to undergo several more tests. All these could have been avoided had the proper safeguards been scrupulously followed in conducting the clinical examination and releasing the clinical report. (Garcia v Salvador)

C. ACTS CONTRA BONUS MORES

Art. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.

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of the defendant, she would not have again yielded to his embraces, much less for one year, without exacting early fulfillment of the alleged promises of marriage, and would have cut chart all sexual relations upon finding that defendant did not intend to fulfill his promises. Hence, we conclude that no case is made under Article 21 of the Civil Code, and no other cause of action being alleged, no error was committed by the Court of First Instance in dismissing the complaint. (Tanjanco v. CA) F RAUD AND DECEIT In the light of the above laudable purpose of Article 21, We are of the opinion, and so hold, that where a man's promise to marry is in fact the proximate cause of the acceptance of his love by a woman and his representation to fulfill that promise thereafter becomes the proximate cause of the giving of herself unto him in a sexual congress, proof that he had, in reality, no intention of marrying her and that the promise was only a subtle scheme or deceptive device to entice or inveigle her to accept him and to obtain her consent to the sexual act, could justify the award of damages pursuant to Article 21 not because of such promise to marry but because of the fraud and deceit behind it and the willful injury to her honor and reputation which followed thereafter. It is essential, however, that such injury should have been committed in a manner contrary to morals, good customs or public policy. (Baksh v. CA) The defendant not only deliberately, but through a clever strategy, succeeded in winning the affection and love of Lolita to the extent of having illicit relations with her. The defendant frequented the house of Lolita on the pretext that he wanted her to teach him how to pray the rosary. Because of the frequency of his visits to the latter's family who was allowed free access because he was a collateral relative and was considered as a member of her family, the two eventually fell in love with each other. The wrong he has caused her and her family is indeed immeasurable considering the fact that he is a married man. Verily, he has committed an injury to Lolita's family in a manner contrary to morals, good customs and public policy as contemplated in Article 21 of the new Civil Code. (Pe v Pe) M ALICIOUS P ROSECUTION N OT LIABLE WHEN THERE S PC One cannot be held liable in damages for maliciously instituting a prosecution where he acted with probable cause. Considering that the checks could not be encashed and the supposedly defective goods had not been returned by the drawer, the petitioner had reason to believe when he filed his complaint that the buyer had at the outset intended to deceive him. The adverse result of an action does not per se make the wrongful and subject the actor to the payment of moral damages. The law could not have meant to impose a penalty on the right to litigate, such right is so precious that moral damages may not be charged on those who may exercise it erroneously. (Que v. IAC) N O EVIL MOTIVE WHEN VICTIM There was no proof of a sinister design on the part of the respondents to vex or humiliate petitioner Rosemarie by instituting the criminal case against her and her co-accused. Respondent Pilar who was robbed of her valuable belongings can only be expected to bring the matter to the authorities. There can be no evil motive that should be attributed to one, who, as victim of a crime institutes the necessary legal proceedings (Magbanua v Junsay)

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D UTIES AS POLICE OFFICERS We also do not find the actuations of respondents Ibarra and Juanito to be impelled by legal malice. Their commencement of the action against petitioner Rosemarie and her co-accused was pursuant to their duties as police officers. The same was made subsequent to the report of respondent Pilar of the commission of the crime, and the investigation on the person of petitioner Rosemarie. Even then, mistakes committed by a public officer are not actionable absent any clear showing that they were motivated by malice or gross negligence amounting to bad faith,52 which was not established in the case at bar. (Magbanua v Junsay) D OUBTFUL OR DIFFICULT QUESTION OF LAW (i.e. the charge of rebellion with murder and frustrated murder) A doubtful or difficult question of law may become the basis of good faith and, in this regard, the law always accords to public officials the presumption of good faith and regularity in the performance of official duties. 31 Any person who seeks to establish otherwise has the burden of proving bad faith or ill-motive. Here, since the petitioners were of the honest conviction that there was probable cause to hold respondent Adaza for trial for the crime of rebellion with murder and frustrated murder, and since Adaza himself, through counsel, did not allege in his complaint lack of probable cause, we find that the petitioners cannot be held liable for malicious prosecution. Needless to say, probable cause was not wanting in the institution of Criminal Case No. Q-90-11855 against Adaza. (Drilon v. CA) H UMILIATION AND EMBARASSMENT the false accusation charged against the private respondent after detaining and interrogating him by the uniformed guards and the mode and manner in which he was subjected, shouting at him, imposing upon him a fine, threatening to call the police and in the presence and hearing of many people at the Supermarket which brought and caused him humiliation and embarrassment, sufficiently rendered the petitioners liable for damages under Articles 19 and 21 in relation to Article 2219 of the Civil Code. We rule that under the facts of the case at bar, petitioners wilfully caused loss or injury to private respondent in a manner that was contrary to morals, good customs or public policy. It is against morals, good customs and public policy to humiliate, embarrass and degrade the dignity of a person. Everyone must respect the dignity, personality, privacy and peace of mind of his neighbors and other persons (Article 26, Civil Code). And one must act with justice, give everyone his due and observe honesty and good faith (Article 19, Civil Code). (Grand Union v. Espino) Petitioners verbal reproach against respondent was certainly uncalled for considering that by her own account nobody knew that she brought such kind and amount of jewelry inside the paper bag. This being the case, she had no right to attack respondent with her innuendos which were not merely inquisitive but outrightly accusatory. By openly accusing respondent as the only person who went out of the room before the loss of the jewelry in the presence of all the guests therein, and ordering that she be immediately bodily searched, petitioner virtually branded respondent as the thief. True, petitioner had the right to ascertain the identity of the malefactor, but to malign respondent without an iota of proof that she was the one who actually stole the jewelry is an act which, by any standard or principle of law is impermissible. Petitioner had willfully caused injury to respondent in a manner which is contrary to morals and good customs. Her firmness and resolve to find her missing jewelry cannot justify her acts

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toward respondent. She did not act with justice and good faith for apparently, she had no other purpose in mind but to prejudice respondent. Certainly, petitioner transgressed the provisions of Article 19 in relation to Article 21 for which she should be held accountable. (Carpio v. Valmonte) M ANNER OF DISMISSAL The "right" of the respondents to dismiss Quisaba should not be confused with the manner in which the right was exercised and the effects flowing therefrom. If the dismissal was done anti-socially or oppressively, as the complaint alleges, then the respondents violated article 1701 of the Civil Code which prohibits acts of oppression by either capital or labor against the other, and article 21, which makes a person liable for damages if he wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy, the sanction for which, by way of moral damages, is provided in article 2219, no. 10. (Quisaba v. Sta. Ines)

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D. VIOLATION OF HUMAN DIGNITY

Art. 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief: (1) Prying into the privacy of another's residence: (2) Meddling with or disturbing the private life or family relations of another; (3) Intriguing to cause another to be alienated from his friends; (4) Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition. SCOPEArticle 26 of the Civil Code grants a cause of action for damages, prevention, and other relief in cases of breach, though not necessarily constituting a criminal offense, of the following rights: (1) right to personal dignity; (2) right to personal security; (3) right to family relations; (4) right to social intercourse; (5) right to privacy; and (6) right to peace of mind (Gregorio v. CA) E XAMPLES P RIVATE LIFE EXPOSED St. Louis Realty argues that the case is not covered by article 26 which provides that "every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons". "Prying into the privacy of another's residence" and "meddling with or disturbing the private life or family relations of another" and "similar acts", "though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief".Held: the damages fixed by Judge Leuterio are sanctioned by Articles 2200, 2208 and 2219 of the Civil Code. Article 2219 allows moral damages for acts and actions mentioned in Article 26. As lengthily explained by Justice Gatmaitan, the acts and omissions of the firm fan under Article 26. St. Louis Realty's employee was grossly negligent in mixing up the Aramil and Arcadio residences in a widely circulated publication like the Sunday Times. To suit its purpose, it never made any written apology and explanation of the mix-up. It just contented itself with a cavalier "rectification ". Persons, who know the residence of Doctor Aramil, were confused by the distorted, lingering impression that he was renting his residence from Arcadio or that Arcadio had leased it from him. Either way, his private life was mistakenly and unnecessarily exposed. He suffered diminution of income and mental anguish. (St. Louis v. CA)

I NFRINGEMENT OF RIGHTS TO PERSONAL DIGNITY , PERSONAL SECURITY , PRIVACY , AND PEACE OF MIND A scrutiny of Gregorios civil complaint reveals that the averments thereof, taken together, fulfill the elements of Article 2176, in relation to Article 26 of the Civil Code. It appears that Gregorios rights to personal dignity, personal security, privacy, and peace of mind were infringed by Sansio and Datuin when they failed to exercise the requisite diligence in determining the identity of the person they should rightfully accuse of tendering insufficiently funded checks. This fault was compounded when they failed to ascertain the correct address of petitioner, thus depriving her of the opportunity to controvert the charges, because she was not given proper notice. Gregorio was conveniently arrested at her city residence at while visiting her family. She suffered embarrassment and humiliation over her sudden arrest and detention and she had to spend time, effort, and money to clear her tarnished name and reputation, considering that she had held several honorable positions in different organizations and offices in the public service, particularly her being a Kagawad in Oas, Albay at the time of her arrest. (Gregorio v. CA) L ACK OF PRUDENCE The exculpatory clause notwithstanding, the Court notes that respondent could have managed the "situation" better, it being held in high esteem in the hotel and service industry. Given respondents vast experience, it is safe to presume that this is not its first encounter with booked events exceeding the guaranteed cover. The delay in service might have been avoided or minimized if respondent exercised prescience in scheduling events. No less than quality service should be delivered especially in events which possibility of repetition is close to nil. Petitioners are not expected to get married twice in their lifetimes. In the present petition, under considerations of equity, the Court deems it just to award the amount of P50,000.00 by way of nominal damages to petitioners, for the discomfiture that they were subjected to during to the event.15 The Court recognizes that every person is entitled to respect of his dignity, personality, privacy and peace of mind. Respondents lack of prudence is an affront to this right (Guanio v. Makati Shangri-la)

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

F. UNFAIR COMPETITION
Art. 28. Unfair competition in agricultural, commercial or industrial enterprises or in labor through the use of force, intimidation, deceit, machination or any other unjust, oppressive or highhanded method shall give rise to a right of action by the person who thereby suffers damage.

VII. INTERFERENCE WITH CONTRACTUAL RELATIONS

Art. 1314. Any third person who induces another to violate his contract shall be liable for damages to the other contracting party.

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ELEMENTS1) the existence of a valid contract 2) knowledge on the part of the third person of the existence of contract and 3) interference without legal justification or excuse ND 2 ELEMENT While it is not necessary to prove actual knowledge, he must nonetheless be aware of the facts which, if followed by a reasonable inquiry, will lead to a complete disclosure of the contractual relations and rights of the parties in the contract. (Lagon v CA) RD 3 ELEMENT Defendant to be held liable only when there was no legal justification or excuse for his action or when his conduct was stirred by a wrongful motive. He must have acted with malice or must have been driven by purely impious reasons to injure the plaintiff. Lack of malice precludes damages (Lagon v CA) As a general rule, justification for interfering with the business relations of another exists where the actor's motive is to benefit himself. Such justification does not exist where his sole motive is to cause harm to the other. Added to this, some authorities believe that it is not necessary that the interferer's interest outweigh that of the party whose rights are invaded, and that an individual acts under an economic interest that is substantial, not merely de minimis, such that wrongful and malicious motives are negatived, for he acts in self-protection. Moreover justification for protecting one's financial position should not be made to depend on a comparison of his economic interest in the subject matter with that of others. 12 It is sufficient if the impetus of his conduct lies in a proper business interest rather than in wrongful motives. (So Ping Bun v CA) B USINESS INTEREST as early as Gilchrist vs. Cuddy, we held that where there was no malice in the interference of a contract, and the impulse behind one's conduct lies in a proper business interest rather than in wrongful motives, a party cannot be a malicious interferer. Where the alleged interferer is financially interested, and such interest motivates his conduct, it cannot be said that he is an officious or malicious intermeddler. (So Ping Bun v CA) REMEDY;INJUNCTIONOne who wrongfully interferes in a contract between others, and, for the purpose of gain to himself induces one of the parties to break it, is liable to the party injured thereby; and his continued interference may be ground for an injunction where the injuries resulting will be irreparable! And where there is a malicious interference with lawful and valid contracts a permanent injunction will ordinarily issue without proof of express malice. But the remedy by injunction cannot be used to restrain a legitimate competition, though such competition would involve the violation of a contract. (Gilchrist v Cuddy) Courts in the United States have usually granted such relief where the profits of the injured person are derived from his contractual relations with a large and indefinite number of individuals, thus reducing him to the necessity of proving in an action against the tort-feasor that the latter was responsible in each case for the broken contract, or else obliging him to institute individual suits against each contracting party and so exposing him to a multiplicity of suits. (Gilchrist v Cuddy) E XAMPLES F ILM SHOWING Gilchrist was facing the immediate prospect of diminished profits by reason of the fact that the appellants had induced Cuddy to rent to them the film Gilchrist had counted upon as his feature film. If he allowed the appellants to exhibit the film in Iloilo, it would be useless for him to exhibit it again, as the desire of the public to witness the production would have been

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already satisfied. The circumstances justified the issuance of that injunction in the discretion of the court.These injunction saved the plaintiff harmless from damages due to the unwarranted interference of the defendants, as well as the difficult task which would have been set for the court of estimating them in case the appellants had been allowed to carry out their illegal plans. (Gilchrist vs. Cuddy) o NOTE: This case was used as the justification for the next two cases in order to state that if the interference were motivated by business or profit, then there would not be any malicious interference with the contract. However, the courts have failed to take into consideration that this case was not an action for damages but one for injunction. Sir thinks that if it were an action for damages, they would have been awarded since 1314 does not require malice L EASE CONTRACT Trendsetter Marketing asked DCCSI to execute lease contracts in its favor, and as a result petitioner deprived respondent corporation of the latter's property right. The three elements of tort interference abovementioned are present but it is clear that petitioner So Ping Bun prevailed upon DCCSI to lease the warehouse to his enterprise at the expense of respondent corporation. Though petitioner took interest in the property of respondent corporation and benefited from it, nothing on record imputes deliberate wrongful motives or malice on him. (So Ping Bun v CA) o The business desire is there to make some gain to the detriment of the contracting parties. Lack of malice, however, precludes damages. But it does not relieve petitioner of the legal liability for entering into contracts and causing breach of existing ones. Relief granted: permanent injunction and nullification of the lease contracts between DCCSI and Trendsetter Marketing, without awarding damages. The injunction saved the respondents from further damage or injury caused by petitioner's interference. (So Ping Bun v CA) o NOTE: Damages were not awarded because malice was not shown; Sir states that this case misapplied Gilchrist vs. Cuddy in stating that proper business interest would mean no malice. This case created a dichotomy where none existed. Damages werent awarded in Gilchrist because they werent asked for, not because there was a legitimate business purpose. Sir also argues that there wasnt a contract existing anymore because it was already rescinded, therefore no interference should have existed S AME ; I NDUCE The word induce refers to situations where a person causes another to choose one course of conduct by persuasion or intimidation. The records show that the decision of the heirs of the late Bai Tonina Sepi to sell the property was completely of their own volition and that petitioner did absolutely nothing to influence their judgment. Private respondent himself did not proffer any evidence to support his claim. In short, even assuming that private respondent was able to prove the renewal of his lease contract with Bai Tonina Sepi, the fact was that he was unable to prove malice or bad faith on the part of petitioner in purchasing the property. Therefore, the claim of tortuous interference was never established. (Lagon v CA) o NOTE: The court here interpreted inducement as necessitating persuasion or intimidation. Sir thinks that this is pretty dangerous since it would mean that Lagon is not allowed to approach sellers and must be approached

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Unlawful interference While there was nothing objectionable in negotiating for a lower price in the second purchase of SEACAT 25, which is not prohibited by the Memorandum of Agreement, Go, Robinson, Tecson and Landicho clearly connived not only in ensuring that Cordero would have no participation in the contract for sale of the second SEACAT 25, but also that Cordero would not be paid the balance of his commission from the sale of the first SEACAT 25. This, despite their knowledge that it was commission already earned by and due to Cordero. Thus, the trial and appellate courts correctly ruled that the actuations of Go, Robinson, Tecson and Landicho were without legal justification and intended solely to prejudice Cordero. (Go v Cordero) o NOTE: This case contradicts So Ping Bun and Lagon however since the interference was motivated by economic gains. Sir thinks that this case is correct over the other two. In any case, Sir argues that a case could have been made as an abuse of right because of the manner of the interference PROSSER AND KEETON o The law of interference with contract is aimed at protecting relationships, some economic and some personal; it does not necessarily involve falsehood nor an independent tort. It may be sufficient for liability that the defendant acted intentionally and caused harm; it is not necessary for malice to be present o Basis of the liability is the intent; there must be knowledge regarding the contract and the intent to interfere with the contract o An impersonal or disinterested motive may protect the defendant in his interference, especially if he seeks to protect a person whom he stands in a relation of responsibility " There may also be a privilege to protect public interest " Giving advice to withdraw from a contractual obligation is another situation, though the advice must have been requested, or the defendant stands in such a relation as to justify this intervention " May also interfere if to protect own existing economic interests such as ownership These exceptions do not allow for prospective advantages It is also improper to entice away customers who are bound to the plaintiff that would enhance the defendants opportunities at the expense of actual existing contract rights of the plaintiff in the absence of justification other than competition for future business " If the contract is terminable at will, the privilege of competition allow for interference " Not allowed to interfere with contracts if it will not cause him harm; cant simply interfere with a plaintiff just because o In order to be held liable, the defendant must be shown to have caused the interference and the loss; it is enough that the defendant played an active and substantial part in the loss " Not enough to have reaped the benefits of the broken contract o Any type of contract may be interfered with, though it must be valid, except for contracts to marry

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Art. 2195. The provisions of this Title shall be respectively applicable to all obligations mentioned in Article 1157. Art. 2196. The rules under this Title are without prejudice to special provisions on damages formulated elsewhere in this Code. Compensation for workmen and other employees in case of death, injury or illness is regulated by special laws. Rules governing damages laid down in other laws shall be observed insofar as they are not in conflict with this Code. Art. 2198. The principles of the general law on damages are hereby adopted insofar as they are not inconsistent with this Code. Damages may be defined as the pecuniary compensation, recompense, or satisfaction for an injury sustained, or as otherwise expressed, the pecuniary consequences which the law imposes for the breach of some duty or the violation of some right. (People v Ballesteros) To warrant the recovery of damages, there must be both a right of action for a legal wrong inflicted by the defendant and damages resulting to the plaintiff therefrom. Wrong without damage, or damage without wrong does not constitute a cause of action, since damages are merely part of the remedy allowed for the injury caused by a breach or wrong. (Custodio v CA) Injury is the illegal invasion of a legal right; damage is the loss, hurt, or harm which results from the injury; and damages are the recompense or compensation awarded for the damage suffered.(Custodio v CA) TYPES OF DAMAGES Art. 2197. Damages may be: (1) Actual or compensatory; (2) Moral; (3) Nominal; (4) Temperate or moderate; (5) Liquidated; or (6) Exemplary or corrective.

2.

I. ACTUAL OR COMPENSATORY- Classification: COMPENSATORY 1. Definition/Purpose

Art. 2199. Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages. Actual damages are intended to put the injured party in the position in which he was before he was injured. (Oceaneering Contractors v Baretto)

DAMAGES 1. CONCEPT OF DAMAGES

2. Proof required

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The rule is long and well settled that there must be pleading and proof of actual damages suffered for the same to be recovered. In addition to the fact that the amount of loss must be capable of proof, it must also be actually proven with a reasonable degree of certainty, premised upon competent proof or the best evidence obtainable.The burden of proof of the damage suffered is, consequently, imposed on the party claiming the same who should adduce the best evidence available in support thereof, like sales and delivery receipts, cash and check vouchers and other pieces of documentary evidence of the same nature.(Oceaneering Contractors v Baretto) o Damages may not be awarded based on hearsay evidence. Price quotations not enough; equivalent to hearsay evidence, whether objected to or not, has no probative value, unless proponent can show evidence falls within exceptions to hearsay evidence rule. (PNOC v CA) o SIR SAYS: Chattel and ships and anything that earns income, you have to take into account the value of the physical asset and as a thing that earns income, which makes computation of actual damages more difficult. 3. Loss covered Art. 2200. Indemnification for damages shall comprehend not only the value of the loss suffered, but also that of the profits which the obligee failed to obtain. Art. 2203. The party suffering loss or injury must exercise the diligence of a good father of a family to minimize the damages resulting from the act or omission in question. Art. 2207. If the plaintiff's property has been insured, and he has received indemnity from the insurance company for the injury or loss arising out of the wrong or breach of contract complained of, the insurance company shall be subrogated to the rights of the insured against the wrongdoer or the person who has violated the contract. If the amount paid by the insurance company does not fully cover the injury or loss, the aggrieved party shall be entitled to recover the deficiency from the person causing the loss or injury.

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b. In contracts and quasi-contracts

Art. 2201. In contracts and quasi-contracts, the damages for which the obligor who acted in good faith is liable shall be those that are the natural and probable consequences of the breach of the obligation, and which the parties have foreseen or could have reasonably foreseen at the time the obligation was constituted. In case of fraud, bad faith, malice or wanton attitude, the obligor shall be responsible for all damages which may be reasonably attributed to the nonperformance of the obligation. (1107a)

c. In crimes and quasi-delicts

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. Art. 2204. In crimes, the damages to be adjudicated may be respectively increased or lessened according to the aggravating or mitigating circumstances.

d. Earning capacity; Business standing

Art. 2205. Damages may be recovered: (1) For loss or impairment of earning capacity in cases of temporary or permanent personal injury; (2) For injury to the plaintiff's business standing or commercial credit. FORMULA: Net Earning Capacity = life expectancy x (gross annual income reasonable and necessary living expenses), where life expectancy =2/3 x (80age at the time of death) and reasonable and necessary living expenses =50% of gross annual income GR AND XPN: As a rule, documentary evidence should be presented to substantiate the claim for damages for loss of earning capacity. By way of exception, damages for loss of earning capacity may be awarded despite the absence of documentary evidence when: (1) the deceased is self-employed and earning less than the minimum wage under current labor laws, in which case, judicial notice may be taken of the fact that in the deceased's line of work no documentary evidence is available; or (2) the deceased is employed as a daily wage worker earning less than the minimum wage under current labor laws. (Phil Hawk v Lee) o 80% of the gross annual income of the gas station- reasonable ; 50% of net income- necessary (Phil Hawk v Lee) A person is entitled to the physical integrity of his or her body; if that integrity is violated or diminished, actual injury is suffered for which actual or compensatory damages are due and assessable. A scar, especially one on the face of the woman, resulting from the infliction of injury upon her, is a violation of bodily integrity, giving raise to a legitimate claim for restoration to her conditio ante. If the scar is relatively small and does not grievously disfigure the victim, the cost of surgery may be expected to be correspondingly modest. (Gatchalian v Delim)

a. In General (Art. 2200): There are two kinds of actual or compensatory

damages: one is the loss of what a person already possesses (daoemergente), and the other is the failure pertained to him (lucrocesante).(PNOC v CA) o Where goods are destroyed by the wrongful act of the defendant the plaintiff is entitled to their value at the time of destruction, that is, normally, the sum of money which he would have to pay in the market for identical or essentially similar goods, plus in a proper case damages for the loss of use during the period before replacement. If the market value of the ship reflects the fact that it is in any case virtually certain of profitable employment, then nothing can be added to that value in respect of charters actually lost, for to do so would be pro tanto to compensate the plaintiff twice over. On the other hand, if the ship is valued without reference to its actual future engagements and only in the light of its profit-earning potentiality, then it may be necessary to add to the value thus assessed the anticipated profit on a charter or other engagement which it was unable to fulfill.(PNOC v CA)

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SC may award actual or compensatory damages for, among other things, the surgical removal of the scar on the face of a young boy who had been injured in a vehicular collision.-the necessity and cost of corrective measures to fully repair the damage; the pain suffered by the injured party; his feelings of inferiority due to consciousness of his present deformity, as well as the voluntary character of the injury inflicted; and further considering that a repair, however, skillfully conducted, is never equivalent to the original state. (Araneta, et al. vs. Areglado) SIR SAYS: In relation to Albayda, Gatchalian should have let the scar remain on her face to get more damages (permanent reminder of the pain suffered) SIR SAYS: In Candanao, what is prohibited is double recovery, not simultaneous action. o The rationale in awarding compensation under the Workmens Compensation Act differs from that in giving damages under the Civil Code. The compensation acts are based on a theory of compensation distinct from the existing theories of damages, payments under the acts being made as compensation and not as damages (99 C.J.S. 53). Compensation is given to mitigate harshness and insecurity of industrial life for the workman and his family. Hence, an employer is liable whether negligence exists or not since liability is created by law. Recovery under the Act is not based on any theory of actionable wrong on the part of the employer. (Candanao v Sugata-On) In the case of Floresca v. Philex Mining Company, we declared that the employees may invoke either the Workmens Compensation Act or the provisions of the Civil Code, subject to the consequence that the choice of one remedy will exclude the other and that the acceptance of the compensation under the remedy chosen will exclude the other remedy. The exception is where the claimant who had already been paid under the Workmens Compensation Act may still sue for damages under the Civil Code on the basis of supervening facts or developments occurring after he opted for the first remedy.

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e. Death by crime or QD
Art. 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least three thousand pesos, even though there may have been mitigating circumstances. In addition: (1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall be paid to the heirs of the latter; such indemnity shall in every case be assessed and awarded by the court, unless the deceased on account of permanent physical disability not caused by the defendant, had no earning capacity at the time of his death; (2) If the deceased was obliged to give support according to the provisions of Article 291, the recipient who is not an heir called to the decedent's inheritance by the law of testate or intestate succession, may demand support from the person causing the death, for a period not exceeding five years, the exact duration to be fixed by the court; (3) The spouse, legitimate and illegitimate descendants and ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the deceased.

As to damages, when death occurs due to a crime, the following may be recovered: (1) civil indemnity ex delicto for the death of the victim; (2) actual or compensatory damages; (3) moral damages; (4) exemplary damages; (5) attorney's fees and expenses of litigation; and (6) interest, in proper cases. (People v Buban) If penalty imposed is death, civil indemnity is P75,000. Otherwise, P50,000. (People v Apacible) In robbery with homicide, civil indemnity and moral damages in the amount of P50,000.00 each is granted automatically in the absence of any qualifying aggravating circumstances. (Crisostomo v People) f. Rape- Civil indemnity which is actually in the nature of actual or compensatory damages, is mandatory upon the finding of the fact of rape. The case law also requires automatic award of moral damages to a rape victim without need of proof because from the nature of the crime, it can be assumed that she has suffered moral injuries entitling her to such award. Such award is separate and distinct from civil indemnity. (People v Astrologo) g. Attys Fees - more of an exception, rather than the general rule; requirement of bf for pars 2 (Bank of America), 4 (Andrada) & 5 Art. 2208. In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial costs, cannot be recovered, except: (1) When exemplary damages are awarded; (2) When the defendant's act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest; (3) In criminal cases of malicious prosecution against the plaintiff; (4) In case of a clearly unfounded civil action or proceeding against the plaintiff; (5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff's plainly valid, just and demandable claim; (6) In actions for legal support; (7) In actions for the recovery of wages of household helpers, laborers and skilled workers; (8) In actions for indemnity under workmen's compensation and employer's liability laws; (9) In a separate civil action to recover civil liability arising from a crime; (10) When at least double judicial costs are awarded; (11) In any other case where the court deems it just and equitable that attorney's fees and expenses of litigation should be recovered. In all cases, the attorney's fees and expenses of litigation must be reasonable. Well settled is the rule that counsel's claim for attorney's fees may be asserted either in the very action in which the services in question have been rendered, or in a separate action. In every action: the Court may pass upon said claim, even if its amount were less than the minimum prescribed by law for the jurisdiction of said court, upon the theory that the right to recover attorney's fees is but an incident of the case in which the services of counsel have been rendered ." It also rests on the assumption that the court trying the case is to a certain degree already familiar with the nature and extent of the lawyer's services. The rule against multiplicity of suits will in effect be subserved. What is being claimed here as attorney's fees by

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petitioners is, however, different from attorney's fees as an item of damages provided for under Article 2208 of the Civil Code, wherein the award is made in favor of the litigant, not of his counsel, and the litigant, not his counsel, is the judgment creditor who may enforce the judgment for attorney's fees by execution. Here, the petitioner's claims are based on an alleged contract for professional services, debtors. (Quirante v IAC) Since the Court does not deem it proper to award exemplary damages in this case, the CA's award for attorney's fees should likewise be deleted, as Article 2208 of the Civil Code (Manila Electric v Ramoy) o SIR SAYS: wrong because there are other grounds for awarding atty's fees. Under Article 220820 of the Civil Code, attorneys fees and expenses of litigation are recoverable only in the concept of actual damages, not as moral damages nor judicial costs. Hence, such must be specifically prayed foras was not done in this caseand may not be deemed incorporated within a general prayer for "such other relief and remedy as this court may deem just and equitable." It must also be noted that aside from the following, the body of the trial courts decision was devoid of any statement regarding attorneys fees. (Briones v Macabagdal) In Scott Consultants & Resource Development Corporation, Inc. v. Court of Appeals, we reiterated that attorneys fees are not to be awarded every time a party wins a suit. The power of the court to award attorneys fees under Article 2208 of the Civil Code demands factual, legal, and equitable justification; its basis cannot be left to speculation or conjecture. Where granted, the court must explicitly state in the body of the decision, and not only in the dispositive portion thereof, the legal reason for the award of attorneys fees. (Briones v Macabagdal)

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The provisions under Title XVIII on Damages of the Civil Code govern in determining the measure of recoverable damages. II. With regard particularly to an award of interest in the concept of actual and compensatory damages, the rate of interest, as well as the accrual thereof, is imposed, as follows: 1. When the obligation is breached, and it consists in the payment of a sum of money, i.e., a loan or forbearance of money, the interest due should be that which may have been stipulated in writing. Furthermore, the interest due shall itself earn legal interest from the time it is judicially demanded. In the absence of stipulation, the rate of interest shall be 12% per annum to be computed from default, i.e., from judicial or extrajudicial demand under and subject to the provisions of Article 1169 of the Civil Code. 2. When an obligation, not constituting a loan or forbearance of money, is breached, an interest on the amount of damages awarded may be imposed at the discretion of the court at the rate of 6% per annum. No interest, however, shall be adjudged on unliquidated claims or damages except when or until the demand can be established with reasonable certainty. Accordingly, where the demand is established with reasonable certainty, the interest shall begin to run from the time the claim is made judicially or extrajudicially (Art. 1169, Civil Code) but when such certainty cannot be so reasonably established at the time the demand is made, the interest shall begin to run only from the date the judgment of the court is made (at which time the quantification of damages may be deemed to have been reasonably ascertained). The actual base for the computation of legal interest shall, in any case, be on the amount finally adjudged. 3. When the judgment of the court awarding a sum of money becomes final and executory, the rate of legal interest, whether the case falls under paragraph 1 or paragraph 2, above, shall be 12% per annum from such finality until its satisfaction, this interim period being deemed to be by then an equivalent to a forbearance of credit. (Eastern Shipping Lines v CA)

h. Interest (Art. 2209-2213)

Art. 2209. If the obligation consists in the payment of a sum of money, and the debtor incurs in delay, the indemnity for damages, there being no stipulation to the contrary, shall be the payment of the interest agreed upon, and in the absence of stipulation, the legal interest, which is six per cent per annum. (1108) Art. 2210. Interest may, in the discretion of the court, be allowed upon damages awarded for breach of contract. Art. 2211. In crimes and quasi-delicts, interest as a part of the damages may, in a proper case, be adjudicated in the discretion of the court. Art. 2212. Interest due shall earn legal interest from the time it is judicially demanded, although the obligation may be silent upon this point. (1109a) Art. 2213. Interest cannot be recovered upon unliquidated claims or damages, except when the demand can be established with reasonably certainty. I. When an obligation, regardless of its source, i.e., law, contracts, quasi-contracts, delicts or quasi-delicts is breached, the contravenor can be held liable for damages.

4. Duty to Minimize (Art. 2203, 2214-2215)

Art. 2214. In quasi-delicts, the contributory negligence of the plaintiff shall reduce the damages that he may recover. Art. 2215. In contracts, quasi-contracts, and quasi-delicts, the court may equitably mitigate the damages under circumstances other than the case referred to in the preceding article, as in the following instances: (1) That the plaintiff himself has contravened the terms of the contract; (2) That the plaintiff has derived some benefit as a result of the contract; (3) In cases where exemplary damages are to be awarded, that the defendant acted upon the advice of counsel; (4) That the loss would have resulted in any event; (5) That since the filing of the action, the defendant has done his best to lessen the plaintiff's loss or injury. Contributory Negligence Concurrent or before injury Duty to minimize or doctrine of avoidable consequences (NOTE: NCC 2215) After injury

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Law is explicit that will reduce damages Law is not explicit but follows that it will be reduced Defendant cannot be made to pay for aggravation Burden of proof rests on D that P might have/could have reduced the damage

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contrary to morals, good customs or public policy shall compensate the latter for the damage. Art. 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief: (1) Prying into the privacy of another's residence: (2) Meddling with or disturbing the private life or family relations of another; (3) Intriguing to cause another to be alienated from his friends; (4) Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition. Art. 27. Any person suffering material or moral loss because a public servant or employee refuses or neglects, without just cause, to perform his official duty may file an action for damages and other relief against he latter, without prejudice to any disciplinary administrative action that may be taken. Art. 28. Unfair competition in agricultural, commercial or industrial enterprises or in labor through the use of force, intimidation, deceit, machination or any other unjust, oppressive or highhanded method shall give rise to a right of action by the person who thereby suffers damage. Art. 29. When the accused in a criminal prosecution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted. Such action requires only a preponderance of evidence. Upon motion of the defendant, the court may require the plaintiff to file a bond to answer for damages in case the complaint should be found to be malicious. If in a criminal case the judgment of acquittal is based upon reasonable doubt, the court shall so declare. In the absence of any declaration to that effect, it may be inferred from the text of the decision whether or not the acquittal is due to that ground. Art. 30. When a separate civil action is brought to demand civil liability arising from a criminal offense, and no criminal proceedings are instituted during the pendency of the civil case, a preponderance of evidence shall likewise be sufficient to prove the act complained of. Art. 32. (supra) Art. 34. When a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property, such peace officer shall be primarily liable for damages, and the city or municipality shall be subsidiarily responsible therefor. The civil action herein recognized shall be independent of any criminal proceedings, and a preponderance of evidence shall suffice to support such action. Art. 35. When a person, claiming to be injured by a criminal offense, charges another

II. MORAL DAMAGES- Classification: COMPENSATORY

Art. 2217. Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendant's wrongful act for omission. Art. 2218. In the adjudication of moral damages, the sentimental value of property, real or personal, may be considered. Art. 2219. Moral damages may be recovered in the following and analogous cases: (1) A criminal offense resulting in physical injuries; (2) Quasi-delicts causing physical injuries; (3) Seduction, abduction, rape, or other lascivious acts; (4) Adultery or concubinage; (5) Illegal or arbitrary detention or arrest; (6) Illegal search; (7) Libel, slander or any other form of defamation; (8) Malicious prosecution; (9) Acts mentioned in Article 309; (10) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34, and 35. The parents of the female seduced, abducted, raped, or abused, referred to in No. 3 of this article, may also recover moral damages. The spouse, descendants, ascendants, and brothers and sisters may bring the action mentioned in No. 9 of this article, in the order named. Art. 2220. Willful injury to property may be a legal ground for awarding moral damages if the court should find that, under the circumstances, such damages are justly due. The same rule applies to breaches of contract where the defendant acted fraudulently or in bad faith. Related Provisions: Art. 309. Any person who shows disrespect to the dead, or wrongfully interferes with a funeral shall be liable to the family of the deceased for damages, material and moral. Art. 21. Any person who wilfully causes loss or injury to another in a manner that is

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with the same, for which no independent civil action is granted in this Code or any special law, but the justice of the peace finds no reasonable grounds to believe that a crime has been committed, or the prosecuting attorney refuses or fails to institute criminal proceedings, the complaint may bring a civil action for damages against the alleged offender. Such civil action may be supported by a preponderance of evidence. Upon the defendant's motion, the court may require the plaintiff to file a bond to indemnify the defendant in case the complaint should be found to be malicious. If during the pendency of the civil action, an information should be presented by the prosecuting attorney, the civil action shall be suspended until the termination of the criminal proceedings. REQUISITES FOR THE AWARD OF MORAL DAMAGES 1) There must be an INJURY, whether physical, metal, or psychological 2) There must be a CULPABLE ACT OR OMISSION FACTUALLY ESTABLISHED 3) The WRONGFUL ACT OR OMISSION is the PROXIMATE CAUSE of the injury 4) The award of damages is predicated on ANY OF THE CASES STATED IN ART. 2219 (and Art. 2220) WHEN MD ALLOWED must be the proximate result of a wrongful act or omission, the factual basis for which is satisfactorily established by the aggrieved party 1) Under CULPA CONTRACTUAL OR BREACH OF CONTRACT: when the defendant acted in: a. Bad Faith; or b. was guilty of gross negligence (amounting to Bad Faith); or c. in wanton disregard of his contractual obligation; & exceptionally: d. when the act of breach of contract itself is constitutive of torts resulting in physical injuries special rule: e. in Art. 1764 in relation to Art. 2206 when death results from a breach of carriage Art. 1764. Damages in cases comprised in this Section shall be awarded in accordance with Title XVIII of this Book, concerning Damages. Article 2206 shall also apply to the death of a passenger caused by the breach of contract by a common carrier. 2) In CULPA AQUILIANA or QD a. when an act or omission causes PI b. where the defendant is guilty of an intentional tort (Casis: Arts. 19, 20, 21, 26: human relations torts); also applied to contracts when breached by tort 3) In CULPA CRIMINAL: when accused is found guilty of: a. PI b. lascivious acts c. adultery or concubinage d. illegal detention e. illegal arrest f. illegal search; or g. defamation 4) Malicious Prosecution 5)

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The term analogous causes in Art. 2219, following the ejusdem generis rule must be held similar to those expressly enumerated by the law Purpose: ALLEVIATE (present to future) -Moral damages are awarded to enable the injured party to obtain means, diversions or amusements that will serve to alleviate the moral suffering he/she has undergone, by reason of the defendant's culpable action. COMPENSATE (present to past) - Its award is aimed at restoration, as much as possible, of the spiritual status quo ante; thus, it must be proportionate to the suffering inflicted. (Kierulf v CA) o In the case of moral damages, recovery is more an exception rather than the rule. Moral damages are not punitive in nature but are designed to compensate and alleviate the physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar harm unjustly caused to a person. (BF Metal v Lomotan) WHEN RECOVERABLE--award of moral damages would require, firstly, evidence of besmirched reputation or physical, mental or psychological suffering sustained by the claimant; secondly, a culpable act or omission factually established; thirdly, proof that the wrongful act or omission of the defendant is the proximate cause of the damages sustained by the claimant; and fourthly, that the case is predicated on any of the instances expressed or envisioned by Article 2219 and Article 2220 of the Civil Code. o In culpa aquiliana, or quasi-delict, (a) when an act or omission causes physical injuries, or (b) where the defendant is guilty of intentional tort, moral damages may aptly be recovered. (BF Metal v Lomotan) o In contractual, applies, as aforestated, to breaches of contract where the defendant acted fraudulently or in bad faith. (BF Metal v Lomotan) o In culpa criminal, moral damages could be lawfully due when the accused is found guilty of physical injuries, lascivious acts, adultery or concubinage, illegal or arbitrary detention, illegal arrest, illegal search, or defamation. (BF Metal v Lomotan) o In order that moral damages may be awarded, there must be pleading and proof of moral suffering, mental anguish, fright and the like. While no proof of pecuniary loss is necessary in order that moral damages may be awarded, the amount of indemnity being left to the discretion of the court, it is nevertheless essential that the claimant should satisfactorily show the existence of the factual basis of damages and its causal connection to defendant's acts. This is so because moral damages, though incapable of pecuniary estimation, are in the category of an award designed to compensate the claimant for actual injury suffered and not to impose a penalty on the wrongdoer. (BF Metal v Lomotan) o Article 2220[24] does speak of awarding moral damages where there is injury to property, but the injury must be willful and the circumstances show that such damages are justly due. There being no proof that the accident was willful, Article 2220 does not apply. (BF Metal v Lomotan) o Moral damages may be recovered in an action upon breach of contract of carriage only when: (a) where death of a passenger results, or (b) it is proved that the carrier was guilty of fraud and bad faith, even if death does not result. Article 2206 of the Civil Code entitles the descendants,

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ascendants, illegitimate children, and surviving spouse of the deceased passenger to demand moral damages for mental anguish by reason of the death of the deceased. (Sulpicio Lines v Curso) The omission from Article 2206(3) of the brothers and sisters of the deceased passegner reveals the legislative intent to exclude them from recover of moral damages for mental anguish. The provision does not include succession in the collateral line as a source of the right to recover moral damages. The usage of the phrase analogous cases in the provision means simply that the situation must be held similar to those expressly enumerated in the law in question following the ejusdem generis rule. Hence, Article 1003 of the Civil Code is not concerned with recovery of moral damages. (Sulpicio Lines v Curso) Although the institution of a clearly unfounded civil suit can at times be a legal justification for an award of attorney's fees, 10 such filing, however, has almost invariably been held not a ground for award of MD. The rationale for this rule is that the law could not have meant to impose a penalty on the right to litigate.The anguish suffered by a person for having been made a defendant in a civil suit would be no different from the usual worry and anxiety suffered by anyone who is haled to court, a situation that cannot by itself be a cogent reason for the award of moral damages. (Expert Travel v CA) Moral damages are recoverable where the dismissal of the employee was attended by bad faith or fraud or constituted an act oppressive to labor, or was done in a manner contrary to morals, good customs, or public policy. ( Triple Eight v NLRC) People v Pirame and Carlos Arcona v CA- Pirame asked for testimony of wife. While in Arcona, the Court held: such violent death or brutal killing not only steals from the family of the deceased his precious life, deprives them forever of his love, affection and support, but often leaves them with the gnawing feeling that an injustice has been done to them. For this reason, moral damages must be awarded even in the absence of any allegation and proof of the heirs emotional suffering. Moral damages are awarded in quasi-delicts causing physical injuries. The permanent deformity and the scar left by the wounds suffered by Albayba will forever be a reminder of the pain and suffering that he had endured and continues to endure because of petitioners' negligence. ( Heirs of Completo v Albayda) Respondent committed fraud in obtaining the title to the disputed property but SIR SAYS: no contractual relation between him and petitioner (SPS Valenzuela v SPS Mano) While the Court harbors no doubt that the incidents which gave rise to this dispute have brought anxiety and anguish to respondent, it is unconvinced that the damage inflicted upon respondents property was malicious or willful, an element crucial to merit an award of moral damages under Article 2220 of the Civil Code. (Regala v Carin) ARTIFICIAL PERSON- SIR SAYS: definition of mental suffering prevents corporation from moral damages " ABS CBN: The award of moral damages cannot be granted in favor of a corporation because, being an artificial person and having existence

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"

only in legal contemplation, it has no feelings, no emotions, no senses, It cannot, therefore, experience physical suffering and mental anguish, which call be experienced only by one having a nervous system. The statement in People v. Manero and Mambulao Lumber Co. v. PNB that a corporation may recover moral damages if it "has a good reputation that is debased, resulting in social humiliation" is an obiter dictum. TUVERA: provides an exception. Article 2219(7) does not qualify whether the plaintiff is a natural or juridical person. Therefore, a juridical person such as a corporation can validly complain for libel or any other form of defamation and claim for moral damages. ( SIR SAYS: Abs- CBN is a better rule i.e. No exception)

o o

FACTORS CONSIDERED IN DETERMINING AMOUNT o Since each case must be governed by its own peculiar circumstances, there is no hard and fast rule in determining the proper amount. The yardstick should be that the amount awarded should not be so palpably and scandalously excessive as to indicate that it was the result of passion, prejudice or corruption on the part of the trial judge. Neither should it be so little or so paltry that it rubs salt to the injury already inflicted on plaintiffs. o KIERULF: The social and financial standing of a claimant of moral damages may be considered in awarding moral damages only if he or she was subjected to contemptuous conduct despite the offender's knowledge of his or her social and financial standing. (SIR SAYS: should not be considered as long as there is moral suffering) o LOPEZ: amount of damages awarded in this appeal has been determined by adequately considering the official, political, social, and financial standing of the offended parties on one hand, and the business and financial position of the offender on the other (SIR SAYS: inclined towards the rich and influential) o VALENZUELA: The damage done to her would not only be permanent and lasting, it would also be permanently changing and adjusting to the physiologic changes which her body would normally undergo through the years. The replacements, changes and adjustments will require correspond ing armistice physical and occupational therapy. o BRUNTY: see testimony o LIZANO: Moral damages is also automatically granted in rape cases without need of further proof other than the commission of the crime because it is assumed that a rape victim had actually suffered moral injuries entitling her to such award.

III. NOMINAL DAMAGES A. Nature and Purpose

Art. 2221. Nominal damages are adjudicated in order that a right of the plaintiff, which has been violated or invaded by the defendant, may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him. NATUREunder American jurisprudence, nominal damages by their very nature are small sums fixed by the court without regard to the extent of the harm done to the injured party. It is a substantial claim, if based upon the violation of a legal right; in

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such case, the law presumes a damage, although actual or compensatory damages are not proven; in truth nominal damages are damages in name only and not in fact, and are allowed, not as an equivalent of a wrong inflicted, but simply in recogniton of the existence of a technical injury. (Robes-Francisco v CFI) PURPOSEvindicating or recognizing that right, not for indemnifying the plaintiff for any loss suffered. (Francisco v Ferrer)

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B. When Awarded
Art. 2222. The court may award nominal damages in every obligation arising from any source enumerated in Article 1157, or in every case where any property right has been invaded "Nominal damages are 'recoverable where a legal right is technically violated and must be vindicated against an invasion that has produced 1) no actual present loss of any kind or 2)where there has been a breach of contract and no substantial injury or actual damages whatsoever have been or can be shown.'" (Francisco v Ferrer) Recoverable where some injury has been done the amount of which the evidence fails to show, the assessment of damages being left to the discretion of the court according to the circumstances of the case (Robes-Francisco v CFI) EXAMPLES RIGHT OF VENDEE TO ACQUIRE TITLE TO LOT BOUGHTP10,000 is fair and just under the following circumstances, viz: respondent Millan bought the lot from petitioner in May, 1962, and paid in full her installments on December 22, 1971, but it was only on March 2, 1973, that a deed of absolute sale was executed in her favor, and notwithstanding the lapse of almost three years since she made her last payment, petitioner still failed to convey the corresponding transfer certificate of title to Millan who accordingly was compelled to file the instant complaint in August of 1974. (Robes-Francisco v CFI) INSENSITIVITY, INADVERTENCE OR INATTENTIONcare arrives late=BOC but no fraud or bfwhen confronted with their failure to deliver on the wedding day the wedding cake ordered and paid for, petitioners gave the lame excuse that delivery was probably delayed because of the traffic, when in truth, no cake could be delivered because the order slip got lost. For such prevarication, petitioners must be held liable for nominal damages for insensitivity, inadvertence or inattention to their customer's anxiety and need of the hour. (Francisco v Ferrer) RIGHT TO DIGNITY, PERSONALITY, PRIVACY AND PEACE OF MINDP50,000 for discomfiture petitioners were subjected to during the event. Makati Shangs lack of prudence is an affront to this right (Sps Guanio v Makati-Shang) RIGHT AS A PARENTkidnapping and failure to return a minorit took Merano almost a year to legally recover her baby. Justine was only three months old when this whole debacle began. She was already nine months old when Merano saw her again. She spent her first birthday at the Reception and Study Center for Children of the Department of Social Welfare and Development. (People v Marquez)

This is similar to an action for declaratory relief it acknowledges that the offended party has a right o Sir speculated that the case of People vs. Marquez could allow the mother there to use the case in a future action; for example, if the father of the child asserts that the mother does not have custody, the mother may be able to use the case as evidence that she has the right SIR used environmental damage as being the best example o In a beach, for example, although the sand, water and other things found on the beach may be individually given some value, it is impossible to gauge the actual value of all these things put together; the amount of enjoyment that a person may derive from the beach is unquantifiable from that of its particular elements

IV. TEMPERATE DAMAGES

A. When Recoverable
Art. 2224. Temperate or moderate damages, which are more than nominal but less than compensatory damages, may be recovered when the court finds that some pecuniary loss has been suffered but its amount can not, from the nature of the case, be provided with certainty. Art. 2225. Temperate damages must be reasonable under the circumstances GENERAL RULEwhen the court finds that some pecuniary loss has been suffered but its amount CANNOT from the nature of the case be proved with certainty (Gonzales v People)For instance, injury to one's commercial credit or to the goodwill of a business firm is often hard to show certainty in terms of money. Should damages be denied for that reason? The judge should be empowered to calculate moderate damages in such cases, rather than that the plaintiff should suffer, without redress from the defendant's wrongful act. (Pleno v CA) EXCEPTIONS INJURY; CHRONIC AND CONTINUING when it would not be equitable for the victim of an injury that is chronic and continuing to constantly come before the courts and invoke their aid in seeking adjustments to the compensatory damages previously awarded temperate damages are appropriate. And because of the unique nature of such cases, no incompatibility arises when both actual and temperate damages are provided for. The reason is that these damages cover two distinct phases. The amount given as temperate damages, though to a certain extent speculative, should take into account the cost of proper care. E QUITY Notwithstanding the language of Article 2224, a line of jurisprudence has emerged authorizing the award of temperate damages even in cases where the amount of pecuniary loss could have been proven with certainty, if no such adequate proof was presented. The allowance of temperate damages when actual damages were not adequately proven is ultimately a rule drawn from equity, the principle affording relief to those definitely injured who are unable to prove how definite the injury. EXAMPLES LOSS OR IMPAIRMENT OF EARNING CAPACITYPleno is an enterpreneur and the founder of his own corporation, the Mayon Ceramics Corporationindustrious and resourceful person with several projects in line and were it not for the

C. Effect of Reward
Art. 2223. The adjudication of nominal damages shall preclude further contest upon the right involved and all accessory questions, as between the parties to the suit, or their respective heirs and assigns. Note: this is not the same as res judicata

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incident, might have pushed them through. On the day of the incident, Pleno was driving homeward with geologist Langley after an ocular inspection of the site of the Mayon Ceramics Corporation. His actual income however has not been sufficiently established so that this Court cannot award actual damages, but, an award of temperate or moderate damages may still be made on loss or impairment of earning capacity. That Pleno sustained a permanent deformity due to a shortened left leg and that he also suffers from double vision in his left eye is also established. Because of this, he suffers from some inferiority complex and is no longer active in business as well as in social life. (Pleno v CA) The income-earning capacity of the deceased was never disputed. Petitioners Mary Jane Tan, Mary Lyn Tan, Celedonio Tan, Jr., Mary Joy Tan and Mark Allan Tan were all minors at the time the petition was filed on February 4, 2010, and they all relied mainly on the income earned by their father from his tailoring activities for their sustenance and support. Under these facts and taking into account the unrebutted annual earnings of the deceased, we hold that the petitioners are entitled to temperate damages in the amount of P300,000.00 [or roughly, the gross income for two (2) years] to compensate for damages for loss of the earning capacity of the deceased. (Tan v OMC) D AMAGE TO PROPERTY did not submit any receipt to support their claim for actual damages to prove the monetary value of the damage caused to the house and tailoring shop when the truck rammed into them. The photographs the petitioners presented as evidence show the extent of the damage done to the house, the tailoring shop and the petitioners appliances and equipment. Irrefutably, this damage was directly attributable to Arambalas gross negligence in handling OMCs truck. From the attendant circumstances and given the property destroyed, we find the amount of P200,000.00 as a fair and sufficient award by way of temperate damages. (Tan v OMC) OPTIMAL CAREpetitioners were able to provide only home-based nursing care for a comatose patient who has remained in that condition for over a decade. Having premised our award for compensatory damages on the amount provided by petitioners at the onset of litigation, it would be now much more in step with the interests of justice if the value awarded for temperate damages would allow petitioners to provide optimal care for their loved one in a facility which generally specializes in such care. They should not be compelled by dire circumstances to provide substandard care at home without the aid of professionals, for anything less would be grossly inadequate. Under the circumstances, an award of P1.5 M in temperate damages would therefore be reasonable. (Ramos v CA) " SIR pointed out that this would require expert testimony, which is ironic considering that to actually prove liability in medical negligence, expert testimony is not required. He concludes that basically, just try to get expert testimony " The problem of Actual Damages is that they dont count future pain or losses, but simply assume that by the end of the trial, all the injuries will have stopped and healed; this is corrected by Temperate (which also proves that the case of Gatchalian was improperly ruled because the plastic surgery was a future expense yet was still awarded as an Actual) " The court also ruled that Temperate was used to give the optimal care although it did not define this standard

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E XPLOTATION OF FORESTS One of the most daunting and noble undertakings of our young democracythe recovery of ill-gotten wealth salted away during the Marcos years. If the doctrine can be justified to answer for the unlawful damage to a cargo truck, it is a compounded wrath if it cannot answer for the unlawful exploitation of our forests, to the injury of the Filipino people. The amount of P1,000,000.00 as temperate damages is proper. (Republic v Tuvera) NOTE: Basically, the court is aware that it isnt applying the Civil Code strictly but it is awarding damages based on equity. SIR points out that this is a little strange since Equity should only be considered when the law does not expressly provide. The practice of awarding Temperate Damages is heading towards a more Common Law derived direction since the Court is Law. SIR raises the question of giving an award to plaintiffs in instances when they could have given proof to prove the damages B. Factors in Determining Amount If the actual damages, proven by receipts during the trial, amount to less than P25,000.00, the victim shall be entitled to temperate damages in the amount of P25,000.00, in lieu of actual damages (Serrano vs. People) o Sir notes some ugly implications to this: 1) it gives incentive to hide evidence if theyre worth less than Php 25,000. He suggested that the rules should clarify that the hose should be beyond Php 25,000 but the available receipts can only prove less than 25,000. 2) It also encourages just settling for the amount of 25,000 EXAMPLE In this case, the victim is entitled to the award of P25,000.00 as temperate damages considering that the amount of actual damages is only P3,858.50. The amount of actual damages shall be deleted (Serrano vs. People) Temperate damages may be broken down similar to other types of damages. In People vs. Murcia, SC awarded from P10,000 to P25,000 in temperate damages for medical expenses, and from P 250,000 to P200,000 for the burned house (Eulogio merely gave an estimate, unsubstantiated by any document or receipt. It is thus reasonable to expect that the value of the house amount to at least P200,000.) SIR SAYS: The Court is allowed to give an estimate even if others are not allowed to, which is strange since their estimate is based on an estimate

V. LIQUIDATED DAMAGES A. Definition

Art. 2226. Liquidated damages are those agreed upon by the parties to a contract, to be paid in case of breach thereof ACCESSORY OBLIGATIONpenalty clause is an accessory obligation which parties attach to a principal obligation for the purpose of ensuring the performance thereof by imposing a special prestation on the Db in case the obligation is not fulfilled or is irregularly fulfilled. (Pentacapital v Mahinay) The obligor is bound to pay the stipulated amount without need for proof on the existence and on the measure of damages caused by the breach. (Titan v Uni-field) ATTORNEYS FEES are in the nature of liquidated damages and the stipulation therefor is aptly called a penal clause. It has been said that so long as such stipulation does not contravene law, morals, or public order, it is strictly binding

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upon defendant. The attorneys fees so provided are awarded in favor of the litigant, not his counsel. (Titan v Uni-field) SIR SAYS: It is pretty rare to see liquidated damages in a contract under the heading of liquidated damages; they can be disguised as things such as attorneys fees. Just take note of whether or not it results as a penalty. Think how much would I lose if he breaches the contract or how much it would take to file a law suit to get the money back; in effect, takes the place of damages EXAMPLES Penalty charge of 3% per month or 36% p.a. in IOUa penalty clause as an accessory obligation which the parties attach to a principal obligation for the purpose of ensuring the performance thereof by imposing on the debtor a special prestation (generally consisting of the payment of a sum of money) in case the obligation is not fulfilled or is irregularly or inadequately fulfilled. However, it is unconscionable; hence, we reduce it to 1% per month or 12% per annum, pursuant NCC 1229 The judge shall equitably reduce the penalty when the principal obligation has been partly or irregularly complied with by the debtor. Even if there has been no performance, the penalty may also be reduced by the courts if it is iniquitous or unconscionable. (Pentacapital vs. Mahinay) 25% of outstanding obligations as attorneys fees in case of non-payment thereofattorneys fees here are in the nature of liquidated damages. As long as said stipulation does not contravene law, morals, or public order, it is strictly binding upon respondent. Nonetheless, courts are empowered to reduce such rate if the same is iniquitous or unconscionable Hence, we reduce the stipulated attorneys fees from 25% to 10%.(Pentacapital vs. Mahinay)

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VI. EXEMPLARY/CORRECTIVE DAMAGES A. Purposedamages by way of example or correction for the public good;
deterrent against or as a negative incentive to curb socially deleterious actions; means by which the State, throught its judicial arms, can send the clear and unequivocal signal never again EXAMPLELesson that should be learned from the national trauma of the rule of Marcos: kleptocracy cannot pay (Republic vs. Tuvera)

B. When Imposed a. In General

Art. 2229. Exemplary or corrective damages are imposed, by way of example or correction for the public good, in addition to the moral, temperate, liquidated or compensatory damages. Art. 2233. Exemplary damages cannot be recovered as a matter of right; the court will decide whether or not they should be adjudicated. Art. 2234. While the amount of the exemplary damages need not be proved, the plaintiff must show that he is entitled to moral, temperate or compensatory damages before the court may consider the question of whether or not exemplary damages should be awarded. In case liquidated damages have been agreed upon, although no proof of loss is necessary in order that such liquidated damages may be recovered, nevertheless, before the court may consider the question of granting exemplary in addition to the liquidated damages, the plaintiff must show that he would be entitled to moral, temperate or compensatory damages were it not for the stipulation for liquidated damages. Art. 2235. A stipulation whereby exemplary damages are renounced in advance shall be null and void REQUISITES1. they may be imposed by way of example in addition to compensatory damages, and only after the claimant's right to them has been established; 2. they cannot be recovered as a matter of right, their determination depending upon the amount of compensatory damages that may be awarded to the claimant; 3. the act must be accompanied by bad faith or done in a wanton, fraudulent, oppressive or malevolent manner. (PNB v CA) They are awarded on top of moral, temperate, liquidated or compensatory damages, and cant stand on its own. With liquidated damages, it must be proven that in the absence of the liquidated damages, the plaintiff would have been awarded moral, temperate or compensatory damages EXAMPLEwhile there is a clear breach of petitioner's obligation to pay private respondents, there is no evidence that it acted in a fraudulent, wanton, reckless or oppressive manner. Furthermore, there is no award of compensatory damages which is a prerequisite before exemplary damages may be awarded. Therefore, the award by the trial court of P5,000.00 as exemplary damages is baseless. (PNB v CA) NOTE: These requisites though, are only supposed to apply for contracts and quasi contracts; the Court ignored that compensatory damages are not the only source for exemplary damages

B. Determining the Amount

Art. 2227. Liquidated damages, whether intended as an indemnity or a penalty, shall be equitably reduced if they are iniquitous or unconscionable. Art. 2228. When the breach of the contract committed by the defendant is not the one contemplated by the parties in agreeing upon the liquidated damages, the law shall determine the measure of damages, and not the stipulation FACTORSNCC 1229 and 2227 empower the courts to reduce the penalty if it is iniquitous or unconscionable. The determination of whether the penalty is iniquitous or unconscionable is addressed to the sound discretion of the court and depends on several factors such as the type, extent, and purpose of the penalty, the nature of the obligation, the mode of breach and its consequences. (Titan vs. Unifield) EXAMPLE The Court finds the award of attorneys fees "equivalent to 25% of whatever amount is due and payable" to be exorbitant because it includes (1) the principal of P1,404,114.00; (2) the interest charges of P504,114.00 plus accrued interest charges at 24% per annum compounded yearly reckoned from July 1995 up to the time of full payment; and (3) liquidated damages of P324,147.94. Moreover, the liquidated damages and the attorneys fees serve the same purpose, that is, as penalty for breach of the contract. Therefore, we reduce the award of attorneys fees to 25% of the principal obligation, or P351,028.50.

b. In Crimes

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Art. 2230. In criminal offenses, exemplary damages as a part of the civil liability may be imposed when the crime was committed with one or more aggravating circumstances. Such damages are separate and distinct from fines and shall be paid to the offended party. " Being corrective in nature, exemplary damages, therefore, can be awarded, not only in the presence of an aggravating circumstance, but also where the circumstances of the case show the highly reprehensible or outrageous conduct of the offender (People v Dalisay) (e.g. deter other fathers with perverse tendencies or aberrant sexual behavior from sexually abusing their own daughters; deterrent to elders who abuse and corrupt the youth and to protect the latter from sexual abuse) " OLD AND NEW RULESPrior to the effectivity of the Revised Rules of Criminal Procedure, courts generally awarded exemplary damages in criminal cases when an AC, whether ordinary or qualifying, had been proven to have attended the commission of the crime, even if the same was not alleged in the information. This is in accordance with the aforesaid Article 2230. However, with the promulgation of the Revised Rules, courts no longer consider the ACs not alleged and proven in the determination of the penalty and in the award of damages. (People v Dalisay) " WHEN AC NOT ALLEGED BUT PROVEN Courts may still award may still award exemplary damages based on the aforementioned Article 2230, even if the AC has not been alleged, so long as it has been proven, in criminal cases instituted before the effectivity of the Revised Rules which remained pending thereafter. Reason: the retroactive application of the Revised Rules should not adversely affect the vested rights of the private offended party. (People v Catubig) The retroactive application of these procedural rules cannot adversely affect the rights of a private offended party that have become vested where the offense was committed prior to the effectivity of said rules (People v Diunsay-JalandoniInfo dated April 3, 2000) SC quoted Carpio Morales in People v Gragasin[t]he application of Article 2230 of the Civil Code strictissimi juris in such cases, as in the present one, defeats the underlying public policy behind the award of exemplary damagesto set a public example or correction for the public good." (People v DalisayInfo dated 2003 An aggravating circumstance not specifically alleged in the information (albeit established at trial) cannot be appreciated to increase the criminal liability of the accused, the established presence of one or two aggravating circumstances of any kind or nature entitles the offended party to exemplary damages under Article 2230 of the Civil Code because the requirement of specificity in the information affected only the criminal liability of the accused, not his civil liability. Also, the term AC used by CC, the law not having specified otherwise, is to be understood in its broad or generic sense. Reason: Unlike the criminal liability which is basically a State concern, the award of damages, however, is likewise, if not primarily, intended for the offended party who suffers thereby. It would make little sense for an award of exemplary damages to be due the private offended party when the aggravating circumstance is ordinary but to be withheld when it is qualifying. (People vs. Dadulla y Capanas Info dated January 28, 1998) "

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NOTE: Dalisay and Dadulla both used different ways to arrive at the same conclusion; the former case used the spirit of the law, while the latter sticks to the text of the law

c. Quasi-Delicts
Art. 2231. In quasi-delicts, exemplary damages may be granted if the defendant acted with gross negligence.

d. In Contracts and Quasi-Delicts

Art. 2232. In contracts and quasi-contracts, the court may award exemplary damages if the defendant acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner.