12 Abrogar v. Cosmos Bottling Co., G.R. No. 164749, 15 March 2017

THIRD DIVISION
[G.R. No. 164749. March 15, 2017.]
ROMULO ABROGAR and ERLINDA ABROGAR, petitioners, vs.

COSMOS BOTTLING COMPANY and INTERGAMES, INC.,
respondents.
DECISION
BERSAMIN, J : p
This case involves a claim for damages arising from the negligence
causing the death of a participant in an organized marathon bumped by a
passenger jeepney on the route of the race. The issues revolve on whether
the organizer and the sponsor of the marathon were guilty of negligence,
and, if so, was their negligence the proximate cause of the death of the
participant; on whether the negligence of the driver of the passenger
jeepney was an efficient intervening cause; on whether the doctrine of
assumption of risk was applicable to the fatality; and on whether the heirs of
the fatality can recover damages for loss of earning capacity of the latter
who, being then a minor, had no gainful employment.
The Case
By this appeal, the parents of the late Rommel Abrogar (Rommel), a
marathon runner, seek the review and reversal of the decision promulgated
on March 10, 2004, 1 whereby the Court of Appeals (CA) reversed and set
aside the judgment rendered in their favor on May 10, 1991 by the Regional
Trial Court (RTC), Branch 83, in Quezon City 2 finding and declaring
respondents Cosmos Bottling Company (Cosmos), a domestic soft-drinks
company whose products included Pop Cola, and Intergames, Inc.
(Intergames), also a domestic corporation organizing and supervising the
"1st Pop Cola Junior Marathon" held on June 15, 1980 in Quezon City,
solidarily liable for damages arising from the untimely death of Rommel,
then a minor 18 years of age, 3 after being bumped by a recklessly driven
passenger jeepney along the route of the marathon.
Antecedents
The CA narrated the antecedents in the assailed judgment, 4 viz.:
[T]o promote the sales of "Pop Cola", defendant Cosmos, jointly
with Intergames, organized an endurance running contest billed as
the "1st Pop Cola Junior Marathon" scheduled to be held on June 15,
1980. The organizers plotted a 10-kilometer course starting from the
premises of the Interim Batasang Pambansa (IBP for brevity), through
public roads and streets, to end at the Quezon Memorial Circle.
Plaintiffs' son Rommel applied with the defendants to be allowed to
participate in the contest and after complying with defendants'
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requirements, his application was accepted and he was given an
official number. Consequently, on June 15, 1980 at the designated
time of the marathon, Rommel joined the other participants and ran
the course plotted by the defendants. As it turned out, the plaintiffs'
(sic) further alleged, the defendants failed to provide adequate safety
and precautionary measures and to exercise the diligence required of
them by the nature of their undertaking, in that they failed to insulate
and protect the participants of the marathon from the vehicular and
other dangers along the marathon route. Rommel was bumped by a
jeepney that was then running along the route of the marathon on
Don Mariano Marcos Avenue (DMMA for brevity), and in spite of
medical treatment given to him at the Ospital ng Bagong Lipunan, he
died later that same day due to severe head injuries. CAIHTE
On October 28, 1980, the petitioners sued the respondents in the then
Court of First Instance of Rizal (Quezon City) to recover various damages for
the untimely death of Rommel ( i.e., actual and compensatory damages, loss
of earning capacity, moral damages, exemplary damages, attorney's fees
and expenses of litigation). 5
Cosmos denied liability, insisting that it had not been the organizer of
the marathon, but only its sponsor; that its participation had been limited to
providing financial assistance to Intergames; 6 that the financial assistance it
had extended to Intergames, the sole organizer of the marathon, had been
in answer to the Government's call to the private sector to help promote
sports development and physical fitness; 7 that the petitioners had no cause
of action against it because there was no privity of contract between the
participants in the marathon and Cosmos; and that it had nothing to do with
the organization, operation and running of the event. 8
As counterclaim, Cosmos sought attorney's fees and expenses of
litigation from the petitioners for their being unwarrantedly included as a
defendant in the case. It averred a cross-claim against Intergames, stating
that the latter had guaranteed to hold Cosmos "completely free and
harmless from any claim or action for liability for any injuries or bodily harm
which may be sustained by any of the entries in the '1st Pop Cola Junior
Marathon' or for any damage to the property or properties of third parties,
which may likewise arise in the course of the race." 9 Thus, Cosmos sought
to hold Intergames solely liable should the claim of the petitioners prosper.
10
On its part, Intergames asserted that Rommel's death had been an

accident exclusively caused by the negligence of the jeepney driver; that it
was not responsible for the accident; that as the marathon organizer, it did
not assume the responsibilities of an insurer of the safety of the participants;
that it nevertheless caused the participants to be covered with accident
insurance, but the petitioners refused to accept the proceeds thereof; 11 that
there could be no cause of action against it because the acceptance and
approval of Rommel's application to join the marathon had been conditioned
on his waiver of all rights and causes of action arising from his participation
in the marathon; 12 that it exercised due diligence in the conduct of the race
that the circumstances called for and was appropriate, it having availed of all
its know-how and expertise, including the adoption and implementation of all
known and possible safety and precautionary measures in order to protect
the participants from injuries arising from vehicular and other forms of
accidents; 13 and, accordingly, the complaint should be dismissed.
In their reply and answer to counterclaim, the petitioners averred that
contrary to its claims, Intergames did not provide adequate measures for the
safety and protection of the race participants, considering that motor
vehicles were traversing the race route and the participants were made to
run along the flow of traffic, instead of against it; that Intergames did not
provide adequate traffic marshals to secure the safety and protection of the
participants; 14 that Intergames could not limit its liability on the basis of the
accident insurance policies it had secured to cover the race participants; that
the waiver signed by Rommel could not be a basis for denying liability
because the same was null and void for being contrary to law, morals,
customs and public policy; 15 that their complaint sufficiently stated a cause
of action because in no way could they be held liable for attorney's fees,
litigation expenses or any other relief due to their having abided by the law
and having acted honestly, fairly, in good faith by according to Intergames
its due, as demanded by the facts and circumstances. 16
At the pre-trial held on April 12, 1981, the parties agreed that the
principal issue was whether or not Cosmos and Intergames were liable for
the death of Rommel because of negligence in conducting the marathon. 17
Judgment of the RTC
In its decision dated May 10, 1991, 18 the RTC ruled as follows:
WHEREFORE, judgment is hereby rendered in favor of plaintiffs-
spouses Romulo Abrogar and Erlinda Abrogar and against defendants
Cosmos Bottling Company, Inc. and Intergames, Inc., ordering both
defendants, jointly and severally, to pay and deliver to the plaintiffs
the amounts of Twenty Eight Thousand Sixty One Pesos and Sixty
Three Centavos (P28,061.63) as actual damages; One Hundred
Thousand Pesos (P100,000.00) as moral damages; Fifty Thousand
Pesos (P50,000.00) as exemplary damages and Ten Percent (10%) of
the total amount of One Hundred Seventy Eight Thousand Sixty One
Pesos and Sixty Three Centavos (P178,061.63) or Seventeen
Thousand Eight Hundred Six Pesos and Sixteen Centavos
(P17,806.16) as attorney's fees.
On the cross-claim of defendant Cosmos Bottling Company,
Inc., defendant Intergames, Inc., is hereby ordered to reimburse to
the former any and all amounts which may be recovered by the
plaintiffs from it by virtue of this Decision.
DETACa
SO ORDERED.
The RTC observed that the safeguards allegedly instituted by
Intergames in conducting the marathon had fallen short of the yardstick to
satisfy the requirements of due diligence as called for by and appropriate
under the circumstances; that the accident had happened because of
inadequate preparation and Intergames' failure to exercise due diligence; 19
that the respondents could not be excused from liability by hiding behind the
waiver executed by Rommel and the permission given to him by his parents
because the waiver could only be effective for risks inherent in the
marathon, such as stumbling, heat stroke, heart attack during the race,
severe exhaustion and similar occurrences; 20 that the liability of the
respondents towards the participants and third persons was solidary,
because Cosmos, the sponsor of the event, had been the principal mover of
the event, and, as such, had derived benefits from the marathon that in turn
had carried responsibilities towards the participants and the public; that the
respondents' agreement to free Cosmos from any liability had been an
agreement binding only between them, and did not bind third persons; and
that Cosmos had a cause of action against Intergames for whatever could be
recovered by the petitioners from Cosmos. 21
Decision of the CA
All the parties appealed to the CA.
The petitioners contended that the RTC erred in not awarding damages
for loss of earning capacity on the part of Rommel for the reason that such
damages were not recoverable due to Rommel not yet having finished his
schooling; and that it would be premature to award such damages upon the
assumption that he would finish college and be gainfully employed. 22
On their part, Cosmos and Intergames separately raised essentially
similar errors on the part of the RTC, to wit: (1) in holding them liable for the
death of Rommel; (2) in finding them negligent in conducting the marathon;
(3) in holding that Rommel and his parents did not assume the risks of the
marathon; (4) in not holding that the sole and proximate cause of the death
of Rommel was the negligence of the jeepney driver; and (5) in making them
liable, jointly and solidarily, for damages, attorney's fees and expenses of
litigation. 23
The CA reduced the issues to four, namely:
1. Whether or not appellant Intergames was negligent in its
conduct of the "1st Pop Cola Junior Marathon" held on June 15, 1980
and if so, whether its negligence was the proximate cause of the
death of Rommel Abrogar.
2. Whether or not appellant Cosmos can be held jointly and
solidarily liable with appellant Intergames for the death of Rommel
Abrogar, assuming that appellant Intergames is found to have been
negligent in the conduct of the Pop Cola marathon and such
negligence was the proximate cause of the death of Rommel Abrogar.
3. Whether or not the appellants Abrogar are entitled to be
compensated for the "loss of earning capacity" of their son Rommel.
4. Whether or not the appellants Abrogar are entitled to the
actual, moral, and exemplary damages granted to them by the Trial
Court. 24
In its assailed judgment promulgated on March 10, 2004, 25 the CA
ruled as follows:
As to the first issue, this Court finds that appellant Intergames
was not negligent in organizing the said marathon.
Negligence is the omission to do something which a reasonable
man, guided upon those considerations which ordinarily regulate the
conduct to human affairs, would do, or doing something which a
prudent and reasonable man would not do.
The whole theory of negligence presuppose some uniform
standard of behavior which must be an external and objective one,
rather than the individual judgment good or bad, of the particular
actor; it must be, as far as possible, the same for all persons; and at
the same time make proper allowance for the risk apparent to the
actor for his capacity to meet it, and for the circumstances under
which he must act.
The question as to what would constitute the conduct of a
prudent man in a given situation must of course be always
determined in the light of human experience and of the acts involved
in the particular case.
In the case at bar, the trial court erred in finding that the
appellant Intergames failed to satisfy the requirements of due
diligence in the conduct of the race.
The trial court in its decision said that the accident in question
could have been avoided if the route of the marathon was blocked off
from the regular traffic, instead of allowing the runners to run
together with the flow of traffic. Thus, the said court considered the
appellant Intergames at fault for proceeding with the marathon
despite the fact that the Northern Police District, MPF, Quezon City
did not allow the road to be blocked off from traffic.
This Court finds that the standard of conduct used by the trial
court is not the ordinary conduct of a prudent man in such a given
situation. According to the said court, the only way to conduct a safe
road race is to block off the traffic for the duration of the event and
direct the cars and public utilities to take alternative routes in the
meantime that the marathon event is being held. Such standard is
too high and is even inapplicable in the case at bar because, there is
no alternative route from IBP to Don Mariano Marcos to Quezon City
Hall. aDSIHc
The Civil Code provides that if the law or contract does not
state the diligence which is to be observed in the performance of an
obligation that which is expected of a good father of the family shall
only be required. Accordingly, appellant Intergames is only bound to
exercise the degree of care that would be exercised by an ordinarily
careful and prudent man in the same position and circumstances and
not that of the cautious man of more than average prudence. Hence,
appellant Intergames is only expected to observe ordinary diligence
and not extraordinary diligence.
In this case, the marathon was allowed by the Northern Police
District, MPF, Quezon City on the condition that the road should not
be blocked off from traffic. Appellant Intergames had no choice. It had
to comply with it or else the said marathon would not be allowed at
all.
The trial court erred in contending that appellant Intergames
should have looked for alternative places in Metro Manila given the
condition set by the Northern Police District, MPF, Quezon City;
precisely because as Mr. Jose Castro has testified the said route was
found to be the best route after a careful study and consideration of
all the factors involved. Having conducted several marathon events in
said route, appellant Intergames as well as the volunteer groups and
the other agencies involved were in fact familiar with the said route.
And assuming that there was an alternative place suitable for the said
race, the question is would they be allowed to block off the said road
from traffic?
Also, the trial court erred in stating that there was no adequate
number of marshals, police officers and personnel to man the race so
as to prevent injury to the participants.
The general rule is that the party who relies on negligence for
his cause of action has the burden of proving the existence of the
same, otherwise his action fails.
Here, the appellants-spouses failed to prove that there was
inadequate number of marshals, police officers, and personnel
because they failed to prove what number is considered adequate.
This court considers that seven (7) traffic operatives, five (5)
motorcycle policemen, fifteen (15) patrolmen deployed along the
route, fifteen (15) boyscouts, twelve (12) CATs, twenty (20) barangay
tanods, three (3) ambulances and three (3) medical teams were
sufficient to stage a safe marathon.
Moreover, the failure of Mr. Jose R. Castro, Jr. to produce
records of the lists of those constituting the volunteer help during the
marathon is not fatal to the case considering that one of the
volunteers, Victor Landingin of the Citizens Traffic Action (CTA)
testified in court that CTA fielded five units on June 15, 1980,
assigned as follows: (1) at the sphere head; (2) at the finish line; (3)
tail ender; (4) & (5) roving.
The trial court again erred in concluding that the admission of
P/Lt. Jesus Lipana, head of the traffic policemen assigned at the
marathon, that he showed up only at the finish line means that he did
not bother to check on his men and did not give them appropriate
instructions. P/Lt. Lipana in his testimony explained that he did not
need to be in the start of the race because he had predesignated
another capable police officer to start the race.
In addition, this Court finds that the precautionary measures
and preparations adopted by appellant Intergames were sufficient
considering the circumstances surrounding the case.
Appellant Intergames, using its previous experiences in
conducting safe and successful road races, took all the necessary
precautions and made all the preparations for the race. The initial
preparations included: determination of the route to be taken; and an
ocular inspection of the same to see if it was well-paved, whether it
had less corners for easy communication and coordination, and
whether it was wide enough to accommodate runners and
transportation. Appellant Intergames choose the Don Mariano Marcos
Avenue primarily because it was well-paved; had wide lanes to
accommodate runners and vehicular traffic; had less corners thus
facilitating easy communication and coordination among the
organizers and cooperating agencies; and was familiar to the race
organizers and operating agencies. The race covered a ten-kilometer
course from the IBP lane to the Quezon City Hall Compound passing
through the Don Mariano Marcos Avenue, which constituted the main
stretch of the route. Appellant Intergames scheduled the marathon on
a Sunday morning, when traffic along the route was at its lightest.
Permission was sought from the then Quezon City Mayor Adelina
Rodriguez for the use of the Quezon City Hall Grandstand and the
street fronting it as the finish line. Police assistance was also obtained
to control and supervise the traffic. The Quezon City Traffic
Detachment took charge of traffic control by assigning policemen to
the traffic route. The particular unit assigned during the race
underwent extensive training and had been involved in past
marathons, including marathons in highly crowded areas. The
Philippine Boy Scouts tasked to assist the police and monitor the
progress of the race; and Citizens Traffic Action Group tasked with the
monitoring of the race, which assigned five units consisting of ten
operatives, to provide communication and assistance were likewise
obtained. Finally, medical equipment and personnel were also
requested from Camp Aguinaldo, the Philippine Red Cross and the
Hospital ng Bagong Lipunan.
Neither does this Court find the appellant Intergames' conduct
of the marathon the proximate cause of the death of Rommel
Abrogar. Proximate cause has been defined as that which, in natural
and continuous sequence, unbroken by any efficient intervening
cause, produces injury, and without which the result would not have
occurred.
It appears that Rommel Abrogar, while running on Don Mariano
Marcos Avenue and after passing the Philippine Atomic Energy
Commission Building, was bumped by a jeepney which apparently
was racing against a minibus and the two vehicles were trying to
crowd each other. In fact, a criminal case was filed against the
jeepney driver by reason of his having killed Rommel Abrogar. ETHIDa
This proves that the death of Rommel Abrogar was caused by

the negligence of the jeepney driver. Rommel Abrogar cannot be
faulted because he was performing a legal act; the marathon was
conducted with the permission and approval of all the city officials
involved. He had the right to be there. Neither can the appellant
Intergames be faulted, as the organizer of the said marathon,
because it was not negligent in conducting the marathon.
Given the facts of this case, We believe that no amount of
precaution can prevent such an accident. Even if there were fences or
barriers to separate the lanes for the runners and for the vehicles, it
would not prevent such an accident in the event that a negligent
driver loses control of his vehicle. And even if the road was blocked
off from traffic, it would still not prevent such an accident, if a
jeepney driver on the other side of the road races with another
vehicle loses control of his wheel and as a result hits a person on the
other side of the road. Another way of saying this is: A defendant's
tort cannot be considered a legal cause of plaintiff's damage if that
damage would have occurred just the same even though the
defendant's tort had not been committed.
This Court also finds the doctrine of assumption of risk
applicable in the case at bar. As explained by a well-known authority
on torts:
"The general principle underlying the defense of
assumption of risk is that a plaintiff who voluntarily
assumes a risk of harm arising from the negligent or
reckless conduct of the defendant cannot recover for such
harm. The defense may arise where a plaintiff, by
contract or otherwise, expressly agrees to accept a risk or
harm arising from the defendant's conduct, or where a
plaintiff who fully understands a risk or harm caused by
the defendant's conduct, or by a condition created by the
defendant, voluntarily chooses to enter or remain, or to
permit his property to enter or remain, within the area of
such risk, under circumstances manifesting his
willingness to accept the risk.
xxx xxx xxx
"Assumption of the risk in its primary sense arises
by assuming through contract, which may be implied, the
risk of a known danger. Its essence is venturousness. It
implies intentional exposure to a known danger; It
embraces a mental state of willingness; It pertains to the
preliminary conduct of getting into a dangerous
employment or relationship, it means voluntary incurring
the risk of an accident, which may or may not occur, and
which the person assuming the risk may be careful to
avoid; and it defeats recovery because it is a previous
abandonment of the right to complain if an accident
occurs.
"Of course, if the defense is predicated upon an
express agreement the agreement must be valid, and in
the light of this qualification the rule has been stated that
a plaintiff who, by contract or otherwise, expressly agreed
to accept a risk of harm arising from the defendant's
negligent or reckless conduct, cannot recover for such
harm unless the agreement is invalid as contrary to public
policy.
xxx xxx xxx
"The defense of assumption of risk presupposes: (1)
that the plaintiff had actual knowledge of the danger; (2)
that he understood and appreciated the risk from the
danger; and (3) that he voluntarily exposed himself to
such risk. x x x
"The term 'risk' as used in this connection applies to
known dangers, and not to things from which danger may
possibly flow. The risk referred to is the particular risk, or
one of the risks, which the plaintiff accepted within the
context of the situation in which he placed himself and
the question is whether the specific conduct or condition
which caused the injury was such a risk."
In this case, appellant Romulo Abrogar himself admitted that
his son, Rommel Abrogar, surveyed the route of the marathon and
even attended a briefing before the race. Consequently, he was
aware that the marathon would pass through a national road and that
the said road would not be blocked off from traffic. And considering
that he was already eighteen years of age, had voluntarily
participated in the marathon, with his parents' consent, and was well
aware of the traffic hazards along the route, he thereby assumed all
the risks of the race. This is precisely why permission from the
participant's parents, submission of a medical certificate and a waiver
of all rights and causes of action arising from the participation in the
marathon which the participant or his heirs may have against
appellant Intergames were required as conditions in joining the
marathon.
In the decision of the trial court, it stated that the risk
mentioned in the waiver signed by Rommel Abrogar only involved
risks such as stumbling, suffering heatstroke, heart attack and other
similar risks. It did not consider vehicular accident as one of the risks
included in the said waiver.
This Court does not agree. With respect to voluntary
participation in a sport, the doctrine of assumption of risk applies to
any facet of the activity inherent in it and to any open and obvious
condition of the place where it is carried on. We believe that the
waiver included vehicular accidents for the simple reason that it was
a road race run on public roads used by vehicles. Thus, it cannot be
denied that vehicular accidents are involved. It was not a track race
which is held on an oval and insulated from vehicular traffic. In a road
race, there is always the risk of runners being hit by motor vehicles
while they train or compete. That risk is inherent in the sport and
known to runners. It is a risk they assume every time they voluntarily
engage in their sport. cSEDTC
Furthermore, where a person voluntarily participates in a lawful

game or contest, he assumes the ordinary risks of such game or
contest so as to preclude recovery from the promoter or operator of
the game or contest for injury or death resulting therefrom.
Proprietors of amusements or of places where sports and games are
played are not insurers of safety of the public nor of their patrons.
In Mc Leod Store v. Vinson 213 Ky 667, 281 SW 799
(1926), it was held that a boy, seventeen years of age, of
ordinary intelligence and physique, who entered a race
conducted by a department store, the purpose of which
was to secure guinea fowl which could be turned in for
cash prizes, had assumed the ordinary risks incident
thereto and was barred from recovering against the
department store for injuries suffered when, within
catching distance, he stopped to catch a guinea, and was
tripped or stumbled and fell to the pavement, six or eight
others falling upon him. The court further said: "In this
(the race) he was a voluntary participant. xxx The
anticipated danger was as obvious to him as it was to
appellant (the department store). While not an adult, he
was practically 17 years of age, of ordinary intelligence,
and perfectly able to determine the risks ordinarily
incident to such games. An ordinary boy of that age is
practically as well advised as to the hazards of baseball,
basketball, football, foot races and other games of skill
and endurance as is an adult x x x."
In the case at bar, the "1st Pop Cola Junior
Marathon" held on June 15, 1980 was a race the winner of
which was to represent the country in the annual Spirit of
Pheidippides Marathon Classic in Greece, if he equals or
breaks the 29-minute mark for the 10-km. race. Thus,
Rommel Abrogar having voluntarily participated in the
race, with his parents' consent, assumed all the risks of
the race.
Anent the second issue, this Court finds that
appellant Cosmos must also be absolved from any liability
in the instant case.
This Court finds that the trial court erred in holding
appellant Cosmos liable for being the principal mover and
resultant beneficiary of the event.
In its decision it said that in view of the fact that
appellant Cosmos will be deriving certain benefits from
the marathon event, it has the responsibility to ensure
the safety of all the participants and the public. It further
said that the stipulations in the contract entered into by
the two appellants, Cosmos and Intergames, relieving the
former from any liability does not bind third persons.
This Court does not agree with the reasoning of the
trial court. The sponsorship contract entered between
appellant Cosmos and appellant Intergames specifically
states that:
1. COSMOS BOTTLING CORPORATION shall
pay INTERGAMES the amount of FIFTY FIVE
THOUSAND PESOS (P55,000.00) representing full
sponsorship fee and in consideration thereof,
INTERGAMES shall organize and stage a marathon
race to be called '1st POP COLA JUNIOR
MARATHON.'
xxx xxx xxx
3. INTERGAMES shall draw up all the rules
of the marathon race, eligibility requirements of
participants as well as provide all the staff required
in the organization and actual staging of the race. It
is understood that all said staff shall be considered
under the direct employ of INTERGAMES which shall
have full control over them.
xxx xxx xxx
5. INTERGAMES shall secure all the
necessary permits, clearances, traffic and police
assistance in all the areas covered by the entire
route of the '1ST POP COLA JUNIOR MARATHON.'
12. INTERGAMES shall hold COSMOS
BOTTLING CORPORATION, completely free and
harmless from any claim or action for liability for
any injuries or bodily harm which may be sustained
by any of the entries in the '1st POP COLA JUNIOR
MARATHON,' or for any damages to the property or
properties of third parties, which may likewise arise
in the course of the race.
From the foregoing, it is crystal clear that the role of the
appellant Cosmos was limited to providing financial assistance in the
form of sponsorship. Appellant Cosmos' sponsorship was merely in
pursuance to the company's commitment for sports development of
the youth as well as for advertising purposes. The use of the name
Cosmos was done for advertising purposes only; it did not mean that
it was an organizer of the said marathon. As pointed out by
Intergames' President, Jose Castro Jr., appellant Cosmos did not even
have the right to suggest the location and the number of runners. SDAaTC
To hold a defendant liable for torts, it must be clearly shown

that he is the proximate cause of the harm done to the plaintiff. The
nexus or connection of the cause and effect, between a negligent act
and the damage done, must be established by competent evidence.
In this case, appellant Cosmos was not negligent in entering
into a contract with the appellant Intergames considering that the
record of the latter was clean and that it has conducted at least thirty
(30) road races.
Also there is no direct or immediate causal connection between
the financial sponsorship and the death of Rommel Abrogar. The
singular act of providing financial assistance without participating in
any manner in the conduct of the marathon cannot be palmed off as
such proximate cause. In fact, the appellant spouses never relied on
any representation that Cosmos organized the race. It was not even a
factor considered by the appellants-spouses in allowing their son to
join said marathon.
In view of the fact that both defendants are not liable for the
death of Rommel Abrogar, appellants-spouses are not entitled to
actual, moral, exemplary damages as well as for the "loss of earning
capacity" of their son. The third and fourth issues are thus moot and
academic.
UPON THE VIEW WE TAKE OF THIS CASE, THUS , the
judgment appealed from must be, as it hereby is, REVERSED and
SET ASIDE, and another entered DISMISSING the complaint a quo.
The appellants shall bear their respective costs.
SO ORDERED. 26
Issues
In this appeal, the petitioners submit that the CA gravely erred:

A.
x x x in reversing the RTC Decision, (and) in holding that respondent
Intergames was not negligent considering that:
1. Respondent Intergames failed to exercise the diligence of a
good father of the family in the conduct of the marathon in that it did
not block off from traffic the marathon route; and
2. Respondent Intergames' preparations for the race, including
the number of marshal during the marathon, were glaringly
inadequate to prevent the happening of the injury to its participants.
B.
x x x in reversing the RTC Decision, (and) in holding that the doctrine
of assumption of risk finds application to the case at bar even though
getting hit or run over by a vehicle is not an inherent risk in a
marathon race. Even assuming arguendo that deceased Abrogar
made such waiver as claimed, still there can be no valid waiver of
one's right to life and limb for being against public policy.
C.
x x x in reversing the RTC Decision, (and) in absolving respondent
Cosmos from liability to petitioners on the sole ground that
respondent Cosmos' contract with respondent Intergames contained
a stipulation exempting the former from liability.
D.
x x x in reversing the RTC Decision and consequently holding
respondents free from liability, (and) in not awarding petitioners with
actual, moral and exemplary damages for the death of their child,
Rommel Abrogar. 27
Ruling of the Court
The appeal is partly meritorious.
I
Review of factual issues is allowed because of
the conflict between the findings of fact
by the RTC and the CA on the issue of negligence
The petitioners contend that Intergames was negligent; that Cosmos
as the sponsor and Intergames as the organizer of the marathon both had
the obligation to provide a reasonably safe place for the conduct of the race
by blocking the route of the race from vehicular traffic and by providing
adequate manpower and personnel to ensure the safety of the participants;
and that Intergames had foreseen the harm posed by the situation but had
not exercised the diligence of a good father of a family to avoid the risk; 28
hence, for such omission, Intergames was negligent. 29
Refuting, Cosmos and Intergames submit that the latter as the
organizer was not negligent because it had undertaken all the precautionary
measures to ensure the safety of the race; and that there was no duty on
the part of the latter as the organizer to keep a racecourse "free and clear
from reasonably avoidable elements that would [occasion] or have the
probable tendency, to occasion injury." 30 acEHCD
The issue of whether one or both defendants were negligent is a mixed

issue of fact and law. Does this not restrict the Court against reviewing the
records in this appeal on certiorari in order to settle the issue?
The Court can proceed to review the factual findings of the CA as an
exception to the general rule that it should not review issues of fact on
appeal on certiorari. We have recognized exceptions to the rule that the
findings of fact of the CA are conclusive and binding in the following
instances: (1) when the findings are grounded entirely on speculation,
surmises or conjectures; (2) when the inference made is manifestly
mistaken, absurd or impossible; (3) when there is grave abuse of discretion;
(4) when the judgment is based on a misapprehension of facts; (5) when the
findings of facts are conflicting; (6) when in making its findings the CA went
beyond the issues of the case, or its findings are contrary to the admissions
of both the appellant and the appellee; (7) when the findings are contrary to
the trial court; (8) when the findings are conclusions without citation of
specific evidence on which they are based; (9) when the facts set forth in the
petition as well as in the petitioner's main and reply briefs are not disputed
by the respondent; (10) when the findings of fact are premised on the
supposed absence of evidence and contradicted by the evidence on record;
and (11) when the CA manifestly overlooked certain relevant facts not
disputed by the parties, which, if properly considered, would justify a
different conclusion. 31 Considering that the CA arrived at factual findings
contrary to those of the trial court, our review of the records in this appeal
should have to be made.
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. 32
Under Article 1173 of the Civil Code, it consists of the "omission of that
diligence which is required by the nature of the obligation and corresponds
with the circumstances of the person, of the time and of the place." 33 The
Civil Code makes liability for negligence clear under Article 2176, 34 and
Article 20. 35
To determine the existence of negligence, the following time-honored
test has been set in Picart v. Smith: 36
The test by which to determine the existence of negligence in a
particular case may be stated as follows: Did the defendant in
doing the alleged negligent act use that reasonable care and
caution which an ordinarily prudent person would have used
in the same situation? If not, then he is guilty of negligence.
The law here in effect adopts the standard supposed to be supplied
by the imaginary conduct of the discreet paterfamilias of the Roman
law. The existence of negligence in a given case is not determined by
reference to the personal judgment of the actor in the situation
before him. The law considers what would be reckless, blameworthy,
or negligent in the man of ordinary intelligence and prudence and
determines liability by that.
The question as to what would constitute the conduct of a
prudent man in a given situation must of course be always
determined in the light of human experience and in view of the facts
involved in the particular case. Abstract speculation cannot here be of
much value but this much can be profitably said: Reasonable men
govern their conduct by the circumstances which are before them or
known to them. They are not, and are not supposed to be, omniscient
of the future. Hence they can be expected to take care only when
there is something before them to suggest or warn of danger. Could
a prudent man, in the case under consideration, foresee harm
as a result of the course actually pursued? If so, it was the
duty of the actor to take precautions to guard against that
harm. Reasonable foresight of harm, followed by the ignoring
of the suggestion born of this prevision, is always necessary
before negligence can be held to exist. Stated in these terms,
the proper criterion for determining the existence of
negligence in a given case is this: Conduct is said to be
negligent when a prudent man in the position of the
tortfeasor would have foreseen that an effect harmful to
another was sufficiently probable to warrant his foregoing
the conduct or guarding against its consequences. 37 (bold
underscoring supplied for emphasis)
A careful review of the evidence presented, particularly the testimonies
of the relevant witnesses, in accordance with the foregoing guidelines
reasonably leads to the conclusion that the safety and precautionary
measures undertaken by Intergames were short of the diligence demanded
by the circumstances of persons, time and place under consideration. Hence,
Intergames as the organizer was guilty of negligence.
The race organized by Intergames was a junior marathon participated
in by young persons aged 14 to 18 years. It was plotted to cover a distance
of 10 kilometers, starting from the IBP Lane, 38 then going towards the
Batasang Pambansa, and on to the circular route towards the Don Mariano
Marcos Highway, 39 and then all the way back to the Quezon City Hall
compound where the finish line had been set. 40 In staging the event,
Intergames had no employees of its own to man the race, 41 and relied only
on the "cooperating agencies" and volunteers who had worked with it in
previous races. 42 The cooperating agencies included the Quezon City police,
barangay tanods, volunteers from the Boy Scouts of the Philippines, the
Philippine National Red Cross, the Citizens Traffic Action Group, and the
medical teams of doctors and nurses coming from the Office of the Surgeon
General and the Ospital ng Bagong Lipunan. 43 According to Jose R. Castro,
Jr., the President of Intergames, the preparations for the event included
conducting an ocular inspection of the route of the race, 44 sending out
letters to the various cooperating agencies, 45 securing permits from proper
authorities, 46 putting up directional signs, 47 and setting up the water
stations. 48
We consider the "safeguards" employed and adopted by Intergames
not adequate to meet the requirement of due diligence. SDHTEC
For one, the police authorities specifically prohibited Intergames from

blocking Don Mariano Marcos Highway in order not to impair road
accessibility to the residential villages located beyond the IBP Lane. 49
However, contrary to the findings of the CA, 50 Intergames had a choice on
where to stage the marathon, considering its admission of the sole
responsibility for the conduct of the event, including the choice of location.
Moreover, the CA had no basis for holding that "the said route was
found to be the best route after a careful study and consideration of all the
factors involved." 51 Castro, Jr. himself attested that the route had been the
best one only within the vicinity of the Batasan Pambansa, to wit:
COURT
q Was there any specific reason from . . . Was there any specific
reason why you used this route from Batasan to City Hall? Was
there any special reason?
a We have, your Honor, conducted for example the Milo Marathon
in that area in the Batasan Pambansa and we found it to be
relatively safer than any other areas within the vicinity.
As a matter of fact, we had more runners in the Milo Marathon at
that time and nothing happened, your Honor. 52
The chosen route (IBP Lane, on to Don Mariano Marcos Highway, and
then to Quezon City Hall) was not the only route appropriate for the
marathon. In fact, Intergames came under no obligation to use such route
especially considering that the participants, who were young and
inexperienced runners, would be running alongside moving vehicles.
Intergames further conceded that the marathon could have been
staged on a blocked-off route like Roxas Boulevard in Manila where runners
could run against the flow of vehicular traffic. 53 Castro, Jr. stated in that
regard:
COURT TO WITNESS
q What law are you talking about when you say I cannot violate the
law?
a The police authority, your Honor, would not grant us permit
because that is one of the conditions that if we are to conduct a
race we should run the race in accordance with the flow of traffic.
q Did you not inform the police this is in accordance with the
standard safety measures for a marathon race?
a I believed we argued along that line but but (sic) again, if we
insist the police again would not grant us any permit like . . .
except in the case of Roxas Boulevard when it is normally
closed from 8 a.m. when you can run against the flow of
traffic.
q You were aware for a runner to run on the same route of the
traffic would be risky because he would not know what is coming
behind him?
a I believed we talked of the risk, your Honor when the risk has
been minimized to a certain level. Yes, there is greater risk when
you run with the traffic than when you run against the traffic to a
certain level, it is correct but most of the races in Manila or else-
where are being run in accordance with the flow of the traffic.
xxx xxx xxx
ATTY. VINLUAN
q Following the observation of the Court, considering the local
condition, you will agree with me the risks here are greater than
in the United States where drivers on the whole follow traffic
rules?
a That is correct.
q And because of that fact, it is with all the more reason that you
should take all necessary precautions to insure the safety of the
runners?
a That is correct. 54
xxx xxx xxx

COURT:
xxx xxx xxx
Q In your case in all the marathons that you had managed, how
many cases have you encountered where the routes are blocked
off for vehicular traffic?
A These are the International Marathon, Philippines Third World
Marathon and the Milo Marathon. We are blocking them to a
certain length of time.
Q What was the purpose of blocking the routes? Is it for the safety
of the runners or just a matter of convenience?
A In blocking off the route, Your Honor, it is light easier for the
runners to run without impediments to be rendered by the
people or by vehicles and at the same time it would be also
advantageous if the road will be blocked off for vehicle traffic
permitted to us by the traffic authorities.
Q So, in this case, you actually requested for the traffic authorities
to block off the route?
A As far as I remember we asked Sgt. Pascual to block off the route
but considering that it is the main artery to Fairview Village, it
would not be possible to block off the route since it will cause a
lot of inconvenience for the other people in those areas and
jeepney drivers.
Q In other words, if you have your way you would have opted to
block off the route. AScHCD
A Yes, Your Honor.

Q But the fact is that the people did not agree.
A Yes, Your Honor, and it is stated in the permit given to us. 55
Based on the foregoing testimony of Castro, Jr., Intergames had full

awareness of the higher risks involved in staging the race alongside running
vehicles, and had the option to hold the race in a route where such risks
could be minimized, if not eliminated. But it did not heed the danger already
foreseen, if not expected, and went ahead with staging the race along the
plotted route on Don Mariano Marcos Highway on the basis of its supposedly
familiarity with the route. Such familiarity of the organizer with the route and
the fact that previous races had been conducted therein without any
untoward incident 56 were not in themselves sufficient safeguards. The
standards for avoidance of injury through negligence further required
Intergames to establish that it did take adequate measures to avert the
foreseen danger, but it failed to do so.
Another failing on the part of Intergames was the patent inadequacy of
the personnel to man the route. As borne by the records, Intergames had no
personnel of its own for that purpose, and relied exclusively on the
assistance of volunteers, that is, "seven (7) traffic operatives, five (5)
motorcycle policemen, fifteen (15) patrolmen deployed along the route,
fifteen (15) boy scouts, twelve (12) CATs, twenty (20) barangay tanods,
three (3) ambulances and three (3) medical teams" 57 to ensure the safety of
the young runners who would be running alongside moving vehicular traffic,
to make the event safe and well coordinated.
Although the party relying on negligence as his cause of action had the
burden of proving the existence of the same, Intergames' coordination and
supervision of the personnel sourced from the cooperating agencies did not
satisfy the diligence required by the relevant circumstances. In this regard, it
can be pointed out that the number of deployed personnel, albeit sufficient
to stage the marathon, did not per se ensure the safe conduct of the race
without proof that such deployed volunteers had been properly coordinated
and instructed on their tasks.
That the proper coordination and instruction were crucial elements for
the safe conduct of the race was well known to Intergames. Castro, Jr. stated
as much, to wit:
ATTY. LOMBOS:
xxx xxx xxx
Q You also said that if you block off one side of the road, it is
possible that it would be more convenient to hold the race in that
matter. Will you tell the Honorable Court if it is possible also to
hold a race safely if the road is not blocked off?
A Yes, sir.
Q How is it done?
A You can still run a race safely even if it is partially
blocked off as long as you have the necessary
cooperation with the police authorities, and the police
assigned along the route of the race and the police
assigned would be there, this will contribute the safety of
the participants, and also the vehicular division, as long as
there are substantial publicities in the newspapers, normally they
will take the precautions in the use of the particular route of the
race.
Q Let me clarify this. Did you say that it is possible to hold a
marathon safely if you have this traffic assistance or coordination
even if the route is blocked or not blocked?
A It is preferable to have the route blocked but in some cases, it
would be impossible for the portions of the road to be blocked
totally. The route of the race could still be safe for runners
if a proper coordination or the agencies are notified
especially police detailees to man the particular stage. 58
Sadly, Intergames' own evidence did not establish the conduct of
proper coordination and instruction. Castro, Jr. described the action plan
adopted by Intergames in the preparation for the race, as follows:
COURT
a Did you have any rehearsal let us say the race was conducted on
June 15, now before June 15 you call a meeting of all these
runners so you can have more or less a map-up and you would
indicate or who will be stationed in their places etc. Did you have
such a rehearsal?
WITNESS
a It is not being done, your honor, but you have to specify them.
You meet with the group and you tell them that you wanted them
to be placed in their particular areas which we pointed out to
them for example in the case of the Barangay Tanod, I
specifically assigned them in the areas and we sat down and we
met.
COURT
q Did you have any action, plan or brochure which would indicate
the assignment of each of the participating group?
WITNESS
a Normally, sir, many of the races don't have that except when
they called them to meeting either as a whole group or the entire
cooperating agency or meet them per group.
COURT
q Did you have a check list of the activities that would have to be
entered before the actual marathon some kind of system where
you will indicate this particular activity has to be checked etc.
You did not have that? AcICHD
WITNESS
q Are you asking, your honor, as a race director of I will check this
because if I do that, I won't have a race because that is not being
done by any race director anywhere in the world?
COURT
I am interested in your planning activities.
q In other words, what planning activities did you perform before
the actual marathon?
a The planning activities we had, your honor, was to coordinate
with the different agencies involved informing them where they
would be more or less placed.
COURT
q Let us go to . . . Who was supposed to be coordinating with you
as to the citizens action group who was your . . . you were
referring to a person who was supposed to be manning these
people and who was the person whom you coordinate with the
Traffic Action Group?
WITNESS
a I can only remember his name . . . his family name is Esguerra.
q How about with the Tanods?
a With the Tanods his name is Pedring Serrano.
q And with the Boys Scouts? (sic)
a And with the Boys Scouts of the Phils. (sic) it is Mr. Greg Panelo.
COURT
q When did you last meet rather how many times did you meet
with Esguerra before the marathon on June 15?
WITNESS
a The Citizens Traffic Action Group, your honor, had been with me
in previous races.
COURT
q I am asking you a specific question. I am not interested in the
Citizen Traffic Action Group. The marathon was on June 15, did
you meet with him on June 14, June 13 or June 12?
a We met once, your honor, I cannot remember the date.
q You don't recall how many days before?
a I cannot recall at the moment.
q How about with Mr. Serrano, how many times did you meet with
him before the race?
a If my mind does not fail me, your honor, I met him twice because
he lives just within our area and we always see each other.
q How about with Panelo, how many times did you meet him?
a With Mr. Panelo, I did not meet with them, your honor.
q Was there an occasion where before the race you met with these
three people together since you did not meet with Panelo
anytime? Was there anytime where you met with Serrano and
Esguerra together?
WITNESS
a No, your honor.
COURT
q When you met once with Esguerra, where did you meet? What
place?
a I cannot recall at the moment, your honor, since it was already
been almost six years ago.
q How about Serrano, where did you meet him?
a We met in my place.
q From your house? He went in your house?
a Yes, your honor.
q So you did not have let us say a . . . you don't have records of
your meetings with these people?
WITNESS
a With the Citizens Traffic Action, your honor?
COURT
a Yes.
WITNESS
a I don't have, your honor.
COURT
q Because you are familiar, I was just thinking this is an activity
which requires planning etc., what I was thinking when you said
this was never done in any part of the world but all activities it
has to be planned. There must be some planning, now are you
saying that in this particular case you had no written plan or
check list of activities what activities have to be implemented on
a certain point and time, who are the persons whom you must
meet in a certain point and time.TAIaHE
WITNESS
a Normally, we did not have that, your honor, except the check list
of all the things that should be ready at a particular time prior to
the race and the people to be involved and we have a check list
to see to it that everything would be in order before the start of
the race.
COURT
Proceed.
ATTY. VINLUAN
q Following the question of the Court Mr. Castro, did you meet with
Lt. Depano of the Police Department who were supposed to
supervise the police officers assigned to help during the race?
a I did not meet with him, sir.
q You did not meet with him?
a I did not meet with him.
q In fact, ever before or during the race you had no occasion to talk
to Lt. Depano. Is that correct?
a That is correct, sir.
ATTY. VINLUAN

Based on the question of the Court and your answer to the question of
the Court, are you trying to say that this planning before any race
of all these groups who have committed to help in the race, this
is not done in any part of the world?
WITNESS
a In the latter years when your race became bigger and bigger, this
is being done now slowly.
ATTY. VINLUAN
q But for this particular race you will admit that you failed to do it
when you have to coordinate and even have a dry run of the race
you failed to do all of that in this particular race, yes or no?
a Because there was . . .
COURT
It was already answered by him when I asked him. The Court has
. . . Everybody has a copy how of this time planner. Any activity
or even meeting a girlfriend or most people plan.
ATTY. F.M. LOMBOS
If your honor please, before we proceed . . .
WITNESS
In the latter years, your honor, when your race became bigger
and bigger, this is being done now slowly.
q For this particular race you will admit that you failed to do it?
a Because there was no need, sir. 59
Probably sensing that he might have thereby contradicted himself,
Castro, Jr. clarified on re-direct examination:
ATTY. LOMBOS
Q Now, you also responded to a question during the same hearing
and this appears on page 26 of the transcript that you did not
hold any rehearsal or dry run for this particular marathon. Could
you tell the Court why you did not hold any such rehearsal or dry
run?
A Because I believe there was no need for us to do that since we
have been doing this for many years and we have been the same
people, same organization with us for so many years conducting
several races including some races in that area consisting of
longer distances and consisting of more runners, a lot more
runners in that areay (sic) so these people, they know exactly
what to do and there was no need for us to have a rehearsal. I
believe this rehearsal would only be applicable if I am new and
these people are new then, we have to rehearse.
ATTY. LOMBOS
q You also stated Mr. Castro that you did not have any action plan
or brochure which you would indicate, an assignment of each of
the participating group as to what to do during the race. Will you
please explain what you meant when you said you have no action
plan or brochure?
WITNESS
a What I mean of action plan, I did not have any written action plan
but I was fully aware of what to do. I mean, those people did not
just go there out of nowhere. Obviously, there was an action on
my part because I have to communicate with them previously
and to tell them exactly what the race is all about; where to
start; where it would end, and that is the reason why we have
the ambulances, we have the Boy Scouts, we have the CTA, we
have the police, so it was very obvious that there was a plan of
action but not written because I know pretty well exactly what to
do. I was dealing with people who have been doing this for a long
period of time. 60
While the level of trust Intergames had on its volunteers was
admirable, the coordination among the cooperating agencies was predicated
on circumstances unilaterally assumed by Intergames. It was obvious that
Intergames' inaction had been impelled by its belief that it did not need any
action plan because it had been dealing with people who had been manning
similar races for a long period of time. cDHAES
The evidence presented undoubtedly established that Intergames'

notion of coordination only involved informing the cooperating agencies of
the date of the race, the starting and ending points of the route, and the
places along the route to man. Intergames did not conduct any general
assembly with all of them, being content with holding a few sporadic
meetings with the leaders of the coordinating agencies. It held no briefings
of any kind on the actual duties to be performed by each group of volunteers
prior to the race. It did not instruct the volunteers on how to minimize, if not
avert, the risks of danger in manning the race, despite such being precisely
why their assistance had been obtained in the first place.
Intergames had no right to assume that the volunteers had already
been aware of what exactly they would be doing during the race. It had the
responsibility and duty to give to them the proper instructions despite their
experience from the past races it had organized considering that the
particular race related to runners of a different level of experience, and
involved different weather and environmental conditions, and traffic
situations. It should have remembered that the personnel manning the race
were not its own employees paid to perform their tasks, but volunteers
whose nature of work was remotely associated with the safe conduct of road
races. Verily, that the volunteers showed up and assumed their proper
places or that they were sufficient in number was not really enough. It is
worthy to stress that proper coordination in the context of the event did not
consist in the mere presence of the volunteers, but included making sure
that they had been properly instructed on their duties and tasks in order to
ensure the safety of the young runners.
It is relevant to note that the participants of the 1st Pop Cola Junior
Marathon were mostly minors aged 14 to 18 years joining a race of that kind
for the first time. The combined factors of their youth, eagerness and
inexperience ought to have put a reasonably prudent organizer on higher
guard as to their safety and security needs during the race, especially
considering Intergames' awareness of the risks already foreseen and of
other risks already known to it as of similar events in the past organizer.
There was no question at all that a higher degree of diligence was required
given that practically all of the participants were children or minors like
Rommel; and that the law imposes a duty of care towards children and
minors even if ordinarily there was no such duty under the same
circumstances had the persons involved been adults of sufficient discretion.
61 In that respect, Intergames did not observe the degree of care necessary
as the organizer, rendering it liable for negligence. As the Court has
emphasized in Corliss v. The Manila Railroad Company, 62 where the danger
is great, a high degree of care is necessary, and the failure to observe it is a
want of ordinary care under the circumstances. 63
The circumstances of the persons, time and place required far more
than what Intergames undertook in staging the race. Due diligence would
have made a reasonably prudent organizer of the race participated in by
young, inexperienced or beginner runners to conduct the race in a route
suitably blocked off from vehicular traffic for the safety and security not only
of the participants but the motoring public as well. Since the marathon would
be run alongside moving vehicular traffic, at the very least, Intergames
ought to have seen to the constant and closer coordination among the
personnel manning the route to prevent the foreseen risks from befalling the
participants. But this it sadly failed to do.
II
The negligence of Intergames as the organizer
was the proximate cause of the death of Rommel
As earlier mentioned, the CA found that Rommel, while running the
marathon on Don Mariano Marcos Avenue and after passing the Philippine
Atomic Energy Commission Building, was bumped by a passenger jeepney
that was racing with a minibus and two other vehicles as if trying to crowd
each other out. As such, the death of Rommel was caused by the negligence
of the jeepney driver.
Intergames staunchly insists that it was not liable, maintaining that
even assuming arguendo that it was negligent, the negligence of the
jeepney driver was the proximate cause of the death of Rommel; hence, it
should not be held liable.
Did the negligence of Intergames give rise to its liability for the death
of Rommel notwithstanding the negligence of the jeepney driver?
In order for liability from negligence to arise, there must be not only
proof of damage and negligence, but also proof that the damage was the
consequence of the negligence. The Court has said in Vda. de Gregorio v. Go
Chong Bing: 64
x x x Negligence as a source of obligation both under the civil
law and in American cases was carefully considered and it was held:
We agree with counsel for appellant that under the
Civil Code, as under the generally accepted doctrine in
the United States, the plaintiff in an action such as that
under consideration, in order to establish his right to a
recovery, must establish by competent evidence:
(1) Damages to the plaintiff.
(2) Negligence by act or omission of which
defendant personally or some person for whose acts it
must respond, was guilty.
(3) The connection of cause and effect
between the negligence and the damage. (Taylor vs.
Manila Electric Railroad and Light Co., supra, p. 15.)
In accordance with the decision of the Supreme
Court of Spain, in order that a person may be held guilty
for damage through negligence, it is necessary that there
be an act or omission on the part of the person who is to
be charged with the liability and that damage is produced
by the said act or omission. 65 (Emphasis supplied)
ASEcHI
We hold that the negligence of Intergames was the proximate cause

despite the intervening negligence of the jeepney driver.
Proximate cause is "that which, in natural and continuous sequence,
unbroken by any new cause, produces an event, and without which the
event would not have occurred." 66 In Vda. de Bataclan, et al. v. Medina, 67
the Court, borrowing from American Jurisprudence, has more extensively
defined proximate cause thusly:
"* * * '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 ordinarily 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." 68
To be considered the proximate cause of the injury, the negligence
need not be the event closest in time to the injury; a cause is still proximate,
although farther in time in relation to the injury, if the happening of it set
other foreseeable events into motion resulting ultimately in the damage. 69
According to an authority on civil law: 70 "A prior and remote cause cannot
be made the basis of an action, if such remote cause did nothing more than
furnish the condition or give rise to the occasion by which the injury was
made possible, if there intervened between such prior or remote cause and
the injury a distinct, successive, unrelated and efficient cause, even though
such injury would not have happened but for such condition or occasion. If
no damage exists in the condition except because of the independent cause,
such condition was not the proximate cause. And if an independent
negligent act or defective condition sets into operation the circumstances
which result in injury because of the prior defective condition, such act or
condition is the proximate cause."
Bouvier adds:
In many cases important questions arise as to which, in the
chain of acts tending to the production of a given state of things, is to
be considered the responsible cause. It is not merely distance of
place or of causation that renders a cause remote. The cause nearest
in the order of causation, without any efficient concurring cause to
produce the result, may be considered the direct cause. In the
course of decisions of cases in which it is necessary to
determine which of several causes is so far responsible for
the happening of the act or injury complained of, what is
known as the doctrine of proximate cause is constantly
resorted to in order to ascertain whether the act, omission, or
negligence of the person whom it is sought to hold liable was
in law and in fact responsible for the result which is the
foundation of the action. 71
xxx xxx xxx
The question of proximate cause is said to be
determined, not by the existence or non-existence of
intervening events, but by their character and the natural
connection between the original act or omission and the
injurious consequences. When the intervening cause is set in
operation by the original negligence, such negligence is still
the proximate cause; x x x If the party guilty of the first act of
negligence might have anticipated the intervening cause, the
connection is not broken; x x x. Any number of causes and
effects may intervene, and if they are such as might with
reasonable diligence have been foreseen, the last result is to
be considered as the proximate result. But whenever a new
cause intervenes, which is not a consequence of the first
wrongful cause, which is not under control of the wrongdoer,
which could not have been foreseen by the exercise of
reasonable diligence, and except for which the final injurious
consequence could not have happened, then such injurious
consequence must be deemed too remote; x x x. 72 (bold
underscoring supplied for emphasis)
An examination of the records in accordance with the foregoing
concepts supports the conclusions that the negligence of Intergames was
the proximate cause of the death of Rommel; and that the negligence of the
jeepney driver was not an efficient intervening cause.
First of all, Intergames' negligence in not conducting the race in a road
blocked off from vehicular traffic, and in not properly coordinating the
volunteer personnel manning the marathon route effectively set the stage
for the injury complained of. The submission that Intergames had previously
conducted numerous safe races did not persuasively demonstrate that it had
exercised due diligence because, as the trial court pointedly observed, "
[t]hey were only lucky that no accident occurred during the previous
marathon races but still the danger was there." 73
Secondly, injury to the participants arising from an unfortunate
vehicular accident on the route was an event known to and foreseeable by
Intergames, which could then have been avoided if only Intergames had
acted with due diligence by undertaking the race on a blocked-off road, and
if only Intergames had enforced and adopted more efficient supervision of
the race through its volunteers.
And, thirdly, the negligence of the jeepney driver, albeit an intervening
cause, was not efficient enough to break the chain of connection between
the negligence of Intergames and the injurious consequence suffered by
Rommel. An intervening cause, to be considered efficient, must be "one not
produced by a wrongful act or omission, but independent of it, and adequate
to bring the injurious results. Any cause intervening between the first
wrongful cause and the final injury which might reasonably have been
foreseen or anticipated by the original wrongdoer is not such an efficient
intervening cause as will relieve the original wrong of its character as the
proximate cause of the final injury." 74 ITAaHc
In fine, it was the duty of Intergames to guard Rommel against the

foreseen risk, but it failed to do so.
III
The doctrine of assumption of risk
had no application to Rommel
Unlike the RTC, the CA ruled that the doctrine of assumption of risk
applied herein; hence, it declared Intergames and Cosmos not liable. The CA
rendered the following rationalization to buttress its ruling, to wit:
In this case, appellant Romulo Abrogar himself admitted that
his son, Rommel Abrogar, surveyed the route of the marathon and
even attended a briefing before the race. Consequently, he was
aware that the marathon would pass through a national road and that
the said road would not be blocked off from traffic. And considering
that he was already eighteen years of age, had voluntarily
participated in the marathon, with his parents' consent, and was well
aware of the traffic hazards along the route, he thereby assumed all
the risks of the race. This is precisely why permission from the
participant's parents, submission of a medical certificate and a waiver
of all rights and causes of action arising from the participation in the
marathon which the participant or his heirs may have against
appellant Intergames were required as conditions in joining the
marathon.
In the decision of the trial court, it stated that the risk
mentioned in the waiver signed by Rommel Abrogar only involved
risks such as stumbling, suffering heatstroke, heart attack and other
similar risks. It did not consider vehicular accident as one of the risks
included in the said waiver.
This Court does not agree. With respect to voluntary
participation in a sport, the doctrine of assumption of risk applies to
any facet of the activity inherent in it and to any open and obvious
condition of the place where it is carried on. We believe that the
waiver included vehicular accidents for the simple reason that it was
a road race run on public roads used by vehicles. Thus, it cannot be
denied that vehicular accidents are involved. It was not a track race
which is held on an oval and insulated from vehicular traffic. In a road
race, there is always the risk of runners being hit by motor vehicles
while they train or compete. That risk is inherent in the sport and
known to runners. It is a risk they assume every time they voluntarily
engage in their sport.
Furthermore, where a person voluntarily participates in a lawful
game or contest, he assumes the ordinary risks of such game or
contest so as to preclude recovery from the promoter or operator of
the game or contest for injury or death resulting therefrom.
Proprietors of amusements or of places where sports and games are
played are not insurers of safety of the public nor of their patrons.
In Mc Leod Store v. Vinson 213 Ky 667, 281 SW 799 (1926), it
was held that a boy, seventeen years of age, of ordinary intelligence
and physique, who entered a race conducted by a department store,
the purpose of which was to secure guinea fowl which could be
turned in for cash prizes, had assumed the ordinary risks incident
thereto and was barred from recovering against the department store
for injuries suffered when, within catching distance, he stopped to
catch a guinea, and was tripped or stumbled and fell to the
pavement, six or eight others falling upon him. The court further said:
"In this (the race) he was a voluntary participant. x x x The
anticipated danger was as obvious to him as it was to appellant (the
department store). While not an adult, he was practically 17 years of
age, of ordinary intelligence, and perfectly able to determine the risks
ordinarily incident to such games. An ordinary boy of that age is
practically as well advised as to the hazards of baseball, basketball,
football, foot races and other games of skill and endurance as is an
adult x x x."
In the case at bar, the "1st Pop Cola Junior Marathon" held on
June 15, 1980 was a race the winner of which was to represent the
country in the annual Spirit of Pheidippides Marathon Classic in
Greece, if he equals or breaks the 29-minute mark for the 19-km.
race. Thus, Rommel Abrogar having voluntarily participated in the
race, with his parents' consent, assumed all the risks of the race. 75
The doctrine of assumption of risk means that one who voluntarily
exposes himself to an obvious, known and appreciated danger assumes the
risk of injury that may result therefrom. 76 It rests on the fact that the person
injured has consented to relieve the defendant of an obligation of conduct
toward him and to take his chance of injury from a known risk, and whether
the former has exercised proper caution or not is immaterial. 77 In other
words, it is based on voluntary consent, express or implied, to accept danger
of a known and appreciated risk; it may sometimes include acceptance of
risk arising from the defendant's negligence, but one does not ordinarily
assume risk of any negligence which he does not know and appreciate. 78 As
a defense in negligence cases, therefore, the doctrine requires the
concurrence of three elements, namely: (1) the plaintiff must know that the
risk is present; (2) he must further understand its nature; and (3) his choice
to incur it must be free and voluntary. 79 According to Prosser: 80
"Knowledge of the risk is the watchword of assumption of risk."
Contrary to the notion of the CA, the concurrence of the three elements
was not shown to exist. Rommel could not have assumed the risk of death
when he participated in the race because death was neither a known nor
normal risk incident to running a race. Although he had surveyed the route
prior to the race and should be presumed to know that he would be running
the race alongside moving vehicular traffic, such knowledge of the general
danger was not enough, for some authorities have required that the
knowledge must be of the specific risk that caused the harm to him. 81 In
theory, the standard to be applied is a subjective one, and should be geared
to the particular plaintiff and his situation, rather than that of the reasonable
person of ordinary prudence who appears in contributory negligence. 82 He
could not have appreciated the risk of being fatally struck by any moving
vehicle while running the race. Instead, he had every reason to believe that
the organizer had taken adequate measures to guard all participants against
any danger from the fact that he was participating in an organized
marathon. Stated differently, nobody in his right mind, including minors like
him, would have joined the marathon if he had known of or appreciated the
risk of harm or even death from vehicular accident while running in the
organized running event. Without question, a marathon route safe and free
from foreseeable risks was the reasonable expectation of every runner
participating in an organized running event. CHTAIc
Neither was the waiver by Rommel, then a minor, an effective form of

express or implied consent in the context of the doctrine of assumption of
risk. There is ample authority, cited in Prosser, 83 to the effect that a person
does not comprehend the risk involved in a known situation because of his
youth, 84 or lack of information or experience, 85 and thus will not be taken
to consent to assume the risk.
Clearly, the doctrine of assumption of risk does not apply to bar
recovery by the petitioners.
IV
Cosmos is not liable for the negligence
of Intergames as the organizer
Nonetheless, the CA did not err in absolving Cosmos from liability.
The sponsorship of the marathon by Cosmos was limited to financing
the race. Cosmos did nothing beyond that, and did not involve itself at all in
the preparations for the actual conduct of the race. This verity was expressly
confirmed by Intergames, through Castro, Jr., who declared as follows:
COURT
q Do you discuss all your preparation with Cosmos Bottling
Company?
a As far as the Cosmos Bottling Company (sic) was a
sponsor as to the actual conduct of the race, it is my
responsibility. The conduct of the race is my
responsibility. The sponsor has nothing to do as well as
its code of the race because they are not the ones
running. I was the one running. The responsibility of
Cosmos was just to provide the sponsor's money.
COURT
q They have no right to who (sic) suggest the location, the
number of runners, you decide these yourself without
consulting them?
a Yes, your honor. 86
We uphold the finding by the CA that the role of Cosmos was to pursue
its corporate commitment to sports development of the youth as well as to
serve the need for advertising its business. In the absence of evidence
showing that Cosmos had a hand in the organization of the race, and took
part in the determination of the route for the race and the adoption of the
action plan, including the safety and security measures for the benefit of the
runners, we cannot but conclude that the requirement for the direct or
immediate causal connection between the financial sponsorship of Cosmos
and the death of Rommel simply did not exist. Indeed, Cosmos' mere
sponsorship of the race was, legally speaking, too remote to be the efficient
and proximate cause of the injurious consequences.
V
Damages
Article 2202 of the Civil Code lists the damages that the plaintiffs in a
suit upon crimes and quasi-delicts can recover from the defendant, viz.:
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.
Accordingly, Intergames was liable for all damages that were the
natural and probable consequences of its negligence. In its judgment, the
RTC explained the award of damages in favor of the petitioners, as follows:
As borne by the evidence on record, the plaintiffs incurred
medical, hospitalization and burial expenses for their son in this
aggregate amount of P28,061.65 (Exhibits "D", "D-1" and "D-2"). In
instituting this case, they have paid their lawyer P5,000 as initial
deposit, their arrangement being that they would pay attorney's fees
to the extent of 10% of whatever amount would be awarded to them
in this case.
For the loss of a son, it is unquestionable that plaintiffs suffered
untold grief which should entitle them to recover moral damages, and
this Court believes that if only to assuage somehow their untold grief
but not necessarily to compensate them to the fullest, the nominal
amount of P100,00.00 n should be paid by the defendants.
For failure to adopt elementary and basic precautionary
measure to insure the safety of the participants so that sponsors and
organizers of sports events should exercise utmost diligence in
preventing injury to the participants and the public as well, exemplary
damages should also be paid by the defendants and this Court
considers the amount of P50,000.00 as reasonable. 87 EATCcI
Although we will not disturb the foregoing findings and determinations,

we need to add to the justification for the grant of exemplary damages.
Article 2231 of the Civil Code stipulates that exemplary damages are to be
awarded in cases of quasi-delict if the defendant acted with gross
negligence. The foregoing characterization by the RTC indicated that
Intergames' negligence was gross. We agree with the characterization.
Gross negligence, according to Mendoza v. Spouses Gomez, 88 is the
absence of care or diligence as to amount to a reckless disregard of the
safety of persons or property; it evinces a thoughtless disregard of
consequences without exerting any effort to avoid them. Indeed, the failure
of Intergames to adopt the basic precautionary measures for the safety of
the minor participants like Rommel was in reckless disregard of their safety.
Conduct is reckless when it is an extreme departure from ordinary care, in a
situation in which a high degree of danger is apparent; it must be more than
any mere mistake resulting from inexperience, excitement, or confusion, and
more than mere thoughtlessness or inadvertence, or simple inattention. 89
The RTC did not recognize the right of the petitioners to recover the
loss of earning capacity of Rommel. It should have, for doing so would have
conformed to jurisprudence whereby the Court has unhesitatingly allowed
such recovery in respect of children, students and other non-working or still
unemployed victims. The legal basis for doing so is Article 2206 (1) of the
Civil Code, which stipulates that 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."
Indeed, damages for loss of earning capacity may be awarded to the
heirs of a deceased non-working victim simply because earning capacity, not
necessarily actual earning, may be lost.
In Metro Manila Transit Corporation v. Court of Appeals, 90 damages for
loss of earning capacity were granted to the heirs of a third-year high school
student of the University of the Philippines Integrated School who had been
killed when she was hit and run over by the petitioner's passenger bus as
she crossed Katipunan Avenue in Quezon City. The Court justified the grant
in this wise:
Compensation of this nature is awarded not for loss of
earnings but for loss of capacity to earn money. Evidence
must be presented that the victim, if not yet employed at the
time of death, was reasonably certain to complete training
for a specific profession. In People v. Teehankee , no award of
compensation for loss of earning capacity was granted to the heirs of
a college freshman because there was no sufficient evidence on
record to show that the victim would eventually become a
professional pilot. But compensation should be allowed for loss
of earning capacity resulting from the death of a minor who
has not yet commenced employment or training for a specific
profession if sufficient evidence is presented to establish the
amount thereof. 91 (bold underscoring supplied for emphasis)
In People v. Sanchez, 92 damages for loss of earning capacity was also
allowed to the heirs of the victims of rape with homicide despite the lack of
sufficient evidence to establish what they would have earned had they not
been killed. The Court rationalized its judgment with the following
observations:
Both Sarmenta and Gomez were senior agriculture students at
UPLB, the country's leading educational institution in agriculture. As
reasonably assumed by the trial court, both victims would have
graduated in due course. Undeniably, their untimely death
deprived them of their future time and earning capacity. For
these deprivation, their heirs are entitled to compensation.
xxxx. However, considering that Sarmenta and Gomez would
have graduated in due time from a reputable university, it
would not be unreasonable to assume that in 1993 they
would have earned more than the minimum wage. All factors
considered, the Court believes that it is fair and reasonable to
fix the monthly income that the two would have earned in
1993 at P8,000.00 n 93 (bold underscoring supplied for emphasis)
I n Pereña v. Zarate , 94 the Court fixed damages for loss of earning
capacity to be paid to the heirs of the 15-year-old high school student of Don
Bosco Technical Institute killed when a moving train hit the school van
ferrying him to school while it was traversing the railroad tracks. The RTC
and the CA had awarded damages for loss of earning capacity computed on
the basis of the minimum wage in effect at the time of his death. Upholding
said findings, the Court opined:
x x x, the fact that Aaron was then without a history of earnings
should not be taken against his parents and in favor of the defendants
whose negligence not only cost Aaron his life and his right to work
and earn money, but also deprived his parents of their right to his
presence and his services as well. x x x. Accordingly, we
emphatically hold in favor of the indemnification for Aaron's
loss of earning capacity despite him having been
unemployed, because compensation of this nature is awarded
not for loss of time or earnings but for loss of the deceased's
power or ability to earn money.
The petitioners sufficiently showed that Rommel was, at the time of his
untimely but much lamented death, able-bodied, in good physical and
mental state, and a student in good standing. 95 It should be reasonable to
assume that Rommel would have finished his schooling and would turn out
to be a useful and productive person had he not died. Under the foregoing
jurisprudence, the petitioners should be compensated for losing Rommel's
power or ability to earn. The basis for the computation of earning capacity is
not what he would have become or what he would have wanted to be if not
for his untimely death, but the minimum wage in effect at the time of his
death. The formula for this purpose is: DHITCc
Net Earning Capacity = Life Expectancy x [Gross Annual Income less

Necessary Living Expenses] 96
Life expectancy is equivalent to 2/3 multiplied by the difference of 80
and the age of the deceased. Since Rommel was 18 years of age at the time
of his death, his life expectancy was 41 years. His projected gross annual
income, computed based on the minimum wage for workers in the non-
agricultural sector in effect at the time of his death, 97 then fixed at
P14.00/day, is P5,535.83. Allowing for necessary living expenses of 50% of
his projected gross annual income, his total net earning capacity is
P113,484.52.
Article 2211 of the Civil Code expressly provides that interest, as a part
of damages, may be awarded in crimes and quasi-delicts at the discretion of
the court. The rate of interest provided under Article 2209 of the Civil Code
is 6% per annum in the absence of stipulation to the contrary. The legal
interest rate of 6% per annum is to be imposed upon the total amounts
herein awarded from the time of the judgment of the RTC on May 10, 1991
until finality of judgment. 98 Moreover, pursuant to Article 2212 99 of the Civil
Code, the legal interest rate of 6% per annum is to be further imposed on the
interest earned up to the time this judgment of the Court becomes final and
executory until its full satisfaction. 100
Article 2208 of the Civil Code expressly allows the recovery of
attorney's fees and expenses of litigation when exemplary damages have
been awarded. Thus, we uphold the RTC's allocation of attorney's fees in
favor of the petitioners equivalent to 10% of the total amount to be
recovered, inclusive of the damages for loss of earning capacity and
interests, which we consider to be reasonable under the circumstances.
WHEREFORE, the Court PARTLY AFFIRMS the decision promulgated
on March 10, 2004 to the extent that it absolved COSMOS BOTTLING
COMPANY, INC. from liability; REVERSES and SETS ASIDE the decision as
to INTERGAMES, INC., and REINSTATES as to it the judgment rendered on
May 10, 1991 by the Regional Trial Court, Branch 83, in Quezon City subject
to the MODIFICATIONS that INTERGAMES, INC. is ORDERED TO PAY to
the petitioners, in addition to the awards thereby allowed: (a) the sum of
P113,484.52 as damages for the loss of Rommel Abrogar's earning capacity;
(b) interest of 6% per annum on the actual damages, moral damages,
exemplary damages and loss of earning capacity reckoned from May 10,
1991 until full payment; (c) compounded interest of 6% per annum from the
finality of this decision until full payment; and (d) costs of suit.
SO ORDERED.
Velasco, Jr., Reyes, Jardeleza and Tijam, JJ., concur.

Footnotes
1. Rollo , pp. 49-78; penned by Associate Justice Renato C. Dacudao (retired), with
the concurrence of Presiding Justice Cancio C. Garcia (later a Member of the
Court) and Associate Justice Danilo B. Pine (retired).
2. Id. at 169-179; penned by Presiding Judge Estrella T. Estrada.

3. Note that the incident subject of this case occurred prior to the enactment of
Republic Act No. 6809 (An Act Lowering the Age of Majority from Twenty One
to Eighteen Years, Amending for the Purpose Executive Order Numbered Two
Hundred Nine, and for Other Purposes). Effective on December 13, 1989.
4. Rollo , p. 50.
5. Records, Vol. I, pp. 1-6.
6. Id. at 17-18.
7. Id. at 18.
8. Id.
9. Id. at 19-20.
10. Id.
11. Id. at 33-34.
12. Id.
13. Id.
14. Id. at 42-43.
15. Id.
16. Id. at 44.

17. Records, Vol. I, p. 58.
18. Supra note 2, at 178-179.
19. Id. at 175-177.

20. Id. at 177.
21. Id.
22. CA rollo, p. 30.

23. Id. at 59-60.
24. Rollo , pp. 70-71.
25. Supra note 1.

26. Rollo , pp. 71-77.
27. Id. at 27.
28. Id. at 32.
29. Id. at 31, 33.
30. Id. at 513.

31. Pilipinas Shell Petroleum Corporation v. Gobonseng, Jr., G.R. No. 163562, July
21, 2006, 496 SCRA 305, 316; Sta. Maria v. Court of Appeals, G.R. No.
127549, January 28, 1998, 285 SCRA 351, 357-358; Fuentes v. Court of
Appeals, G.R. No. 109849, February 26, 1997, 268 SCRA 703, 708-709;
Reyes v. Court of Appeals , G.R. No. 110207, July 11, 1996, 258 SCRA 651,
659; Floro v. Llenado , G.R. No. 75723, June 2, 1995, 244 SCRA 713, 720;
Remalante v. Tibe, No. L-59514, February 25, 1988, 158 SCRA 138, 145-146.
32. Philippine National Railways v. Vizcara , G.R. No. 190022, February 15, 2012,
666 SCRA 363, 374; citing Layugan v. Intermediate Appellate Court, No. L-
73998, November 14, 1988, 167 SCRA 363, 372-373.
33. Art. 1173. The fault or negligence of the obligor consists in the omission of that
diligence which is required by the nature of the obligation and corresponds
with the circumstances of the person, of the time and of the place. When
negligence shows bad faith, the provision of Articles 1171 and 2201,
paragraph 2, shall apply.
34. 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 quasi-delict and is governed by the provisions of this
Chapter.
35. Art. 20. Every person who, contrary to law, wilfully or negligently causes
damage to another, shall indemnify the latter for the same.
36. 37 Phil. 809 (1918).
37. Id. at 813.

38. Now called Batasan Road.
39. Now called Commonwealth Avenue.
40. TSN, September 4, 1984, p. 5.

41. According to Castro, Jr., Intergames had only two employees: himself as
President (TSN, September 4, 1984, pp. 13-14); and his wife as the Project
Coordinator (TSN, April 12, 1985, p. 4).
42. Id.
43. TSN, March 15, 1985, pp. 5-16.
44. TSN, April 12, 1985, p. 12.

45. TSN, September 4, 1984, pp. 9-11.
46. Id. at 7-8.
47. TSN, September 10, 1985, p. 6.

48. TSN, March 15, 1985, p. 7.
49. TSN, January 30, 1986, pp. 15-16.
50. Supra note 1, at 72.
51. TSN, January 30, 1986, p. 58.
52. Id. at 59.
53. TSN, September 10, 1985, p. 11.

54. Id. at 11, 13-14.
55. TSN, April 15, 1986, p. 7.
56. Id. at 10.

57. Supra note 1.
58. TSN, April 15, 1986, pp. 8-9.
59. TSN, January 30, 1986, pp. 26-31.
60. TSN, June 23, 1986, pp. 12-13.

61. Aquino, Torts and Damages, 2013, p. 64.
62. No. L-21291, March 28, 1969, 27 SCRA 674.
63. Id. at 681.

64. 102 Phil. 556 (1957).
65. Id. at 560.
66. II Bouvier's Law Dictionary and Concise Encyclopedia, Third Edition (1914),
citing Butcher v. R. Co., 37 W.Va. 180, 16 S.E. 457, 18 L.R.A. 519; Lutz v. R.
Co., 6 N.M. 496, 30 Pac. 912, 16 L.R.A. 819.
67. 102 Phil. 181 (1957).
68. Id. at 186.
69. See Pullman Palace Car Co. v. Laack , 143 Ill. 242, 32 N.E. 285, 18 L.R.A. 215.
70. VI Caguioa, E. P., Comments and Cases on Civil Law, 1970 First Edition, Central
Book Supply, Inc., Quezon City, pp. 402-403.
71. I Bouvier's Law Dictionary and Concise Encyclopedia, Third Edition (1914), p.
432.
72. Id. at 433.
73. Rollo , p. 176.
74. 14 Words and Phrases, Efficient Intervening Cause, p. 172; citing State v. Des
Champs, 120 S.E. 491, 493; 126 S.C. 416.
75. Supra note 1, at 75-76.
76. McGeary v. Reed , 151 N.E. 2d 789, 794, 105 Ohio App. 111.
77. Bull S.S. Line v. Fisher, 77 A. 2d 142, 145, 196 Md. 519.
78. Turpin v. Shoemaker, Mo., 427 S.W. 2d 485, 489.
79. Prosser and Keeton, The Law of Torts, Fifth Edition, Hornbook Series (Student
Edition), West Group, p. 487.
80. Id., citing Cincinnati, New Orleans & Texas Pacific Railway Co. v. Thompson, 8th
Cir., 1916, 236 F. 1, 9.
81. Id., citing Garcia v. City of South Tucson, App. 1981, 131 Ariz. 315, 640 P.2d
1117, 1121; Maxey v. Freightliner, 5th Cir., 1982, 665 F.2d 1367; Heil Co. v.
Grant, Tex. Civ. App. 1976, 534 S.W.2d 916; Klein v. R.D. Werner Co., 1982,
98 Wn.2d 316, 654 P.2d 94.
82. Id.
83. Id., citing Rutter v. Northeastern Beaver Country School District , 1981, 496 Pa.
590, 437 A.2d 1198; Campbell v. Nordco Products , 7th Cir. 1980, 629 F.2d
1258; Zrust v. Spencer Foods, Inc., 8th Cir. 1982, 667 F.2d 760; Scoggins v.
Jude, D.C. App. 1980, 419 A.2d 999; Shahrokhfar v. State Farm Mutual
Automobile Insurance Co., 1981, 634 P.2d 653; Antcliff v. Datzman, 1982,
436 N.E.2d 114.
84. Id., citing Aldes v. St. Paul Baseball Club , 1958, 251 Minn. 440, 88 N.W.2d 94;
Freedman v. Hurwitz, 1933, 116 Conn. 283, 164 A. 647; Everton Silica Sand
Co. v. Hicks, 1939, 197 Ark. 980, 125 S.W.2d 793; Rutter v. Northeastern
Beaver Country School District, 1981, 496 Pa. 590, 437 A.2d 1198 (involving
a 16-year old high school football player).
85. Id., citing Dee v. Parish, 1959, 160 Tex. 171, 327 S.W.2d 449, on remand,
1960, 332 S.W.2d 764; Hanley v. California Bridge & Construction Co., 1899,
127 Cal. 232, 59 P. 577.
86. TSN, January 30, 1986, p. 20.
87. Rollo , pp. 177-178.
88. G.R. No. 160110, June 18, 2014, 726 SCRA 505, 526.
89. 36A Works and Phrases, 322; citing Schick v. Ferolito, 767 A. 2d 962, 167 N.J.7.
90. G.R. No. 116617, November 16, 1998, 298 SCRA 495.
91. Id. at 510-511.
92. G.R. Nos. 121039-121045, October 18, 2001, 367 SCRA 520.
93. Id. at 531.
94. G.R. No. 157917, August 29, 2012, 679 SCRA 208, 234.
95. TSN, June 22, 1981, pp. 3-6.

96. Villa Rey Transit, Inc. v. Court of Appeals, No. L-25499, February 18, 1970, 31
SCRA 511, 515-518.
97. Presidential Decree No. 1713 dated August 18, 1980.
98. Rollo , p. 179.
99. Article 2212. Interest due shall earn legal interest from the time it is judicially
demanded, although the obligation may be silent upon this point. (1109a)

100. Nacar v. Gallery Frames and/or Bordey, Jr., G.R. No. 189871, August 13, 2013,
703 SCRA 439, modifying the ruling in Eastern Shipping Lines, Inc. v. Court of
Appeals (G.R. No. 97412, July 12, 1994, 234 SCRA 78) embodying BSP-MB
Circular No. 799.
n Note from the Publisher: Copied verbatim from the official copy.
n Note from the Publisher: Written as "P8,000.000" in the official document.

12 Abrogar v. Cosmos Bottling Co., G.R. No. 164749, 15 March 2017

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12 Abrogar v. Cosmos Bottling Co., G.R. No. 164749, 15 March 2017

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THIRD DIVISION

[G.R. No. 164749. March 15, 2017.]

ROMULO ABROGAR and ERLINDA ABROGAR, petitioners, vs.

On its part, Intergames asserted that Rommel's death had been an

This proves that the death of Rommel Abrogar was caused by

Furthermore, where a person voluntarily participates in a lawful

To hold a defendant liable for torts, it must be clearly shown

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The issue of whether one or both defendants were negligent is a mixed

For one, the police authorities speciﬁcally prohibited Intergames from

xxx xxx xxx

A Yes, Your Honor.

Based on the foregoing testimony of Castro, Jr., Intergames had full

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The evidence presented undoubtedly established that Intergames'

We hold that the negligence of Intergames was the proximate cause

In ﬁne, it was the duty of Intergames to guard Rommel against the

Neither was the waiver by Rommel, then a minor, an eﬀective form of

Although we will not disturb the foregoing ﬁndings and determinations,

Net Earning Capacity = Life Expectancy x [Gross Annual Income less

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2. Id. at 169-179; penned by Presiding Judge Estrella T. Estrada.

16. Id. at 44.

19. Id. at 175-177.

22. CA rollo, p. 30.

25. Supra note 1.

30. Id. at 513.

37. Id. at 813.

40. TSN, September 4, 1984, p. 5.

44. TSN, April 12, 1985, p. 12.

47. TSN, September 10, 1985, p. 6.

53. TSN, September 10, 1985, p. 11.

56. Id. at 10.

60. TSN, June 23, 1986, pp. 12-13.

63. Id. at 681.

95. TSN, June 22, 1981, pp. 3-6.

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