Legal Aspects in Tourism

and Hospitality
THM 107
 Learning Objectives
• At the end of this unit, the students are expected to:
1. Define and distinguish quasi-delict from damages;
2. Recall and enumerate the Civil Code Provisions of the Philippines of
Quasi-Delict;
3. Enumerate and explain the different liabilities arising from quasi-
delict;
4. Enumerate and explain the liabilities of hotel and inn keepers under
Article 102 of the Revised Penal Code;
5. Identify and explain the different classification of damages; and
6. Critically analyze given workplace situations and identify the
existence of a liability arising under quasi-delict.
 Unit III. Negligence and
Damages Involving Tourism
and Hospitality
Negligence
 Quasi-Delicts

Article 2176
Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the
damage done. Such fault or negligence, if there is no pre-
existing contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of this
Chapter.
 Requisites

1. Damages suffered by the plaintiff;

2. Fault or negligence of the defendant, or some other person
for whose acts he must respond; and
3. The connection of cause and effect between the fault or
negligence of the defendant and the damages incurred by the
plaintiff.
- Huang v. Philippine Hoteliers Inc., G.R. No. 180440, December 5,
2012
Prescription of Action based on a Quasi-Delict
Article 1146 of the NCC
The following actions must be instituted within four years:
(1)Upon an injury to the rights of the plaintiff;
(2)Upon a quasi-delict.
Quasi-Delict also covers acts or
omissions criminal in character
“ Article 2176, where it refers to "fault or negligencia covers not only acts
"not punishable by law" but also acts criminal in character, whether
intentional and voluntary or negligent. Consequently, a separate civil action
lies against the offender in a criminal act, whether or not he is criminally
prosecuted and found guilty or acquitted, provided that the offended party is
not allowed, if he is actually charged also criminally, to recover damages on
both scores, and would be entitled in such eventuality only to the bigger
award of the two, assuming the awards made in the two cases vary. In other
words, the extinction of civil liability referred to in Par. (e) of Section 3, Rule
111, refers exclusively to civil liability founded on Article 100 of the Revised
Penal Code, whereas the civil liability for the same act considered as a quasi-
delict only and not as a crime is not extinguished even by a declaration in the
criminal case that the criminal act charged has not happened or has not been
committed by the accused. Briefly stated, We here hold, in reiteration of
Garcia, that culpa aquiliana includes voluntary and negligent acts which may
be punishable by law.” – Elcano v. Hill, G.R. No. L-24803 May 26, 1977
 Prohibition Against Double Recovery
Article 2177
Responsibility for fault or negligence under the preceding
article is entirely separate and distinct from the civil liability
arising from negligence under the Penal Code. But the
plaintiff cannot recover damages twice for the same act or
omission of the defendant.
 Quasi-delict vs. Delict

Quasi-delict Delict

1. Affects only private interests 1. Affects public interest

2. Governed by the Civil Code 2. Governed by the Revised Penal
Code and other Special Penal laws
3. Remedy provided is reparation
of damages through 3. Remedy provided is punishment
and correction of the criminal act
indemnification
4. Covers only acts that are specifically
4. Covers all acts in which any kind punished under penal laws.
of fault or negligence intervenes
 Quasi-Delicts vs. Culpa-Contractual

Culpa-Aquiliana Culpa-Contract

1. The source of the obligation is the 1. The source of obligation is the

negligence of the tortfeasor. breach of contract.
2. Negligence is direct and substantive. 2. Negligence is incidental to the
3. Defense of “a good father of a family” performance of the contractual
is a proper and complete defense in obligation.
cases of parents, guardians and 3. Defense of “a good father of a
employers. family” is not a complete defense.
4. Negligence must be proved in order to 4. Proof of the existence of a contract
entitle the injured party a right to and its breach, prima facie entitles
relief. the injured party a right to relief.
Quasi-delict in cases where there
exists a contractual relation between
the parties:
When an act which constitutes a breach of contract would
have itself constituted the source of a quasi-delictual liability
had no contract existed between the parties, the contract can
be said to have been breached by tort, thereby allowing the
rules on tort to apply (Rabuya, E., 2017).
 Reading Assignment
Air France vs. Carrascoso, G.R. No. L-21438, September 28,
1866
Determination of the Existence of
Negligence
Foreseeability Test

Requires that a defendant must have acted or failed to act in

such a way that an ordinary reasonable man would have
realized that certain interests of certain persons were
unreasonably subjected to a general but definite class of risks.
Emergency Rule
An individual who suddenly finds himself in a situation of
danger and is required to act without much time to consider
the best means that may be adopted to avoid the impending
danger, is not guilty of negligence if he fails to undertake what
subsequently and upon reflection may appear to have a
better solution, unless the emergency was brought by his own
negligence.
 Proximate Cause
This refers to the 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.
“ … More comprehensively, proximate cause is that cause 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 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.” – DY Teban Trading, Inc. vs. Ching, G.R. 161803, February
4, 2008
 Remote Cause
"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.“ – Abrogar v. Cosmos Bottling Company and Intergames, Inc., G.R. No. 164749, March 15,
2017
Efficient Intervening Cause
“An efficient intervening cause is a new, independent force
intervening between a defendant's negligent act and a
plaintiff's injury by the negligence of a third person who had
full control of the situation, whose negligence the defendant
could not anticipate or contemplate, and whose negligence
resulted directly in the plaintiff's injury. If, conversely, the
third party's negligence is reasonably foreseeable, then the
third party's negligence is not an efficient intervening cause
as a matter of law.
- (Gerlach v. State, 9 Neb. App. 806 (Neb. Ct. App. 2000)
 Doctrine of Contributory Negligence
If the negligence of the plaintiff was only contributory, the
immediate and proximate cause of the injury being the
defendant’s lack of due care, the defendant may recover
damages, but the courts shall mitigate the damages to be
awarded.
 Children are incapable of contributory
negligence
“Since negligence may be a felony and a quasi-delict and
requires discernment as a condition of liability, either criminal
or civil, a child under nine years of age is, by analogy,
conclusively presumed to be incapable of negligence; and that
the presumption of lack of discernment, or incapacity for
negligence in the case of a child over nine but under 15 years
of age is a rebuttable one, under our law…”
- Jarco Marketing Corp. v. Ca, G.R. No. 129792, December 21,
1999
 Doctrine of Last Clear Chance

Where both parties are negligent, but the negligent act of one
is appreciably later in time than that of the other, or when it is
impossible to determine whose fault or negligence should be
attributed to the incident, the one who had the last clear
opportunity to avoid the impending harm and failed to do so
is chargeable with the consequences thereof.
 Inapplicability
1. Where the party charged is required to act
instantaneously, and the injury cannot be avoided by the
application of all means at hand after the peril is or should
have been discovered;
2. Where a passenger demands the responsibility from the
carrier to enforce its contractual obligation
 Burden of Proof
As a rule, it is the PLAINTIFF in a quasi-delict who has the
burden of proof and who is required to establish the
existence of negligence which is the basis of the action.
 Exceptions:

1. When the law provides for a presumption of negligence;

and
2. When the doctrine of RES IPSA LOQUITUR is applicable.
 Doctrine of RES IPSA LOQUITUR

• Means the thing or transaction speaks for itself.

• It holds the defendant liable where the thing which caused
the injury complained of is shown to be under the latter’s
management and the accident is such that, in the ordinary
course of things, cannot be expected to happen if those who
have its management or control use proper care.
 Requisites for Application
1. The event is of a kind which does not ordinarily occur in the
absence of negligence;
2. Other responsible causes, including the conduct of the plaintiff
and third persons, are sufficiently eliminated by the evidence;
3. The indicated negligence is within the scope of the defendant’s
duty to the plaintiff; and
4. It is caused by an instrumentality within the exclusive control
of the defendant/s.
 Instances where Negligence is Presumed
1. In motor vehicle mishaps, it is indisputably presumed that a
driver was negligent if:
a. He had been found guilty of reckless driving; or
b. Violation traffic regulations at least twice within the next
preceding two months.
2. If death or injury results from possession of dangerous
weapons or substances:
Rule: There is prima facie presumption of negligence on the
part of the defendant if the death or injury results from his
possession of dangerous weapons or substances, such as
firearms and poison.
Exception: The presumption does not apply when the
possession or use thereof is indispensable in his occupation
or business.
3. Drivers of vehicles who bump the rear of another vehicle
are presumed to be the cause of the accident, unless
contradicted by other evidence.
 Vicarious/Imputed Liability
Article 2180
The obligation imposed by Article 2176 is demandable no only for one’s
own acts or omissions, but also for those of persons for whom one is
responsible.
The father and in case of his death or incapacity, the mother, are
responsible for the damages caused by the minor children who live in their
company.
Guardians are liable for damages caused by minors or incapacitated
persons who are under their authority and live in their company.
The owners and managers of an establishment or enterprise are likewise
responsible for damages caused by their employees in the service of the
branches in which the latter are employed or on the occasion of their
functions.
Employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks, even
thought the former are not engaged in any business or industry.
The State is responsible in like manner when it acts through a special
agent; but not when the damage has been caused by the official to whom
the task done properly pertains, in which case what is provided in Article
2176 shall be applicable.
Lastly, teachers or heads of establishments of arts and trades shall
be liable for damages caused by their pupils and students or
apprentices, so long as they remain in their custody.
The responsibility treated of in this article shall cease when the
persons herein mentioned prove that they observed the diligent of a
good father of a family to prevent damage.
 Liability of Parents for Torts Committed
by their Minor Children
Article 2180 in relation to Article 221 of the Family Code
Parents and other persons exercising parental authority shall
be civilly liable for the injuries and damages caused by the
acts or omissions of their unemancipated children living in
their company and under their parental authority subject to
the appropriate defenses provided by law.
“ The civil liability imposed upon parents for the torts of their
minor children living with them, may be seen to be based upon the
parental authority vested by the Civil Code upon such parents. The
civil law assumes that when an unemancipated child living with its
parents commits a tortious acts, the parents were negligent in the
performance of their legal and natural duty closely to supervise
the child who is in their custody and control. Parental liability is, in
other words, anchored upon parental authority coupled with
presumed parental dereliction in the discharge of the duties
accompanying such authority. The parental dereliction is, of
course, only presumed and the presumption can be overtuned
under Article 2180 of the Civil Code by proof that the parents had
exercised all the diligence of a good father of a family to prevent
the damage. “
- Tamargo v. Court of Appeals, G.R. No. 85044, June 3, 1992
Reading Assignment

Tamargo v. Court of Appeals, G.R. No. 85044, June 3, 1992

 Liability Extends to Children Above 18
but Below 21 years of age
Paragraph 3, Article 236 of the Family Code of the
Philippines
“Nothing in this Code shall be construed to derogate from
the duty or responsibility of parents and guardians for
children and wards below twenty-one years of age
mentioned in the second and third paragraphs of Article
2180 of the Civil Code.”
 Liability of Parents under the Family
Code versus Article 2180
If the child is still below 18 years of age, Article 221 of the
Family Code will apply and the liability of the father and
mother shall be simultaneous.
If the child is 18 years of age but below 21, Article 2180 shall
apply and the father is primarily liable. The mother shall
answer only in case of the death or incapacity of the father.
 Defense of Parents

The parents may be exempt from liability if they are able to

prove that they observed the diligence of a good father of a
family to prevent damage.
 Liability of Parents or Guardians in Case
of Delict Committed by a Child
1. The civil liability for acts committed by a child at least 15
years of age shall devolve upon those having such person
under their legal authority or control unless it appears that
there was no fault or negligence on their part.
2. For those over 15 but below 21 years of age, Article 2180
shall apply whether or not the child has acted with
discernment (Salen v. Balce).
 Nature of Liability of Parents and
Guardians
The liability of parents or guardians arising from delicts or
quasi-delicts committed by their minor children under their
legal authority or control, or who live in their company is
primary and not subsidiary.
 Liability of Employers for the Negligence
of their Employees
Requisites:
1. Employer-Employee Relationship; and
2. The employees or household helpers were acting within the scope
of their assigned tasks (par. 5);
3. The employees were acting in the service of the branches in which
they are employed or the negligence occurred on the occasion of
their functions (par. 4).
Whenever an employee’s negligence causes damage or
injury to another, there instantly arises a presumption juris
tantum that there was negligence on the part of the
employer, either in the selection (culpa in eligiendo) or the
supervision over him after the selection (culpa in vigilando).
 Nature of Liability of Employer Under
Article 2180
The liability of the employer for the negligent conduct of the
subordinate is direct and primary, subject to the defense of due
diligence in the selection and supervision of the employee. The
enforcement of the judgment against the employer in an action based
on Article 2176 does not require the employee to be insolvent since
the nature of the liability of the employer with that of the employee,
the two being statutorily considered joint tortfeasors, is solidary
(Rabuya, 2017).
 Vicarious Liability vs. Subsidiary
Liability
Vicarious Liability Subsidiary Liability

1. Direct and Primary 1. Secondary

2. Defense of due diligence in the 2. Defense of due diligence in the
selection and supervision of the selection and supervision of the
employee is applicable employee is not applicable
3. There is no requirement of 3. Requires the conviction of the
conviction of the employee in the
criminal case employee in the criminal case
4. Does not require the insolvency of 4. Requires the insolvency of the
the employee employee
 Subsidiary Liability

Article 102 and 103 of the Revised Penal Code of the Philippines
Article 102. Subsidiary civil liability of innkeepers, tavernkeepers
and proprietors of establishments. - In default of the persons
criminally liable, innkeepers, tavernkeepers, and any other
persons or corporations shall be civilly liable for crimes
committed in their establishments, in all cases where a
violation of municipal ordinances or some general or special
police regulation shall have been committed by them or their
employees.
Innkeepers are also subsidiarily liable for the restitution of
goods taken by robbery or theft within their houses from
guests lodging therein, or for the payment of the value thereof,
provided that such guests shall have notified in advance the
innkeeper himself, or the person representing him, of the
deposit of such goods within the inn; and shall furthermore
have followed the directions which such innkeeper or his
representative may have given them with respect to the care
and vigilance over such goods. No liability shall attach in case
of robbery with violence against or intimidation of persons
unless committed by the innkeeper's employees.
Article 103. Subsidiary civil liability of other persons. - The
subsidiary liability established in the next preceding article
shall also apply to employers, teachers, persons, and
corporations engaged in any kind of industry for felonies
committed by their servants, pupils, workmen, apprentices, or
employees in the discharge of their duties.
 Requisites to Enforce the Subsidiary
Liability of the Employer
1. Establishment of the Employer-Employee Relationship
between the Accused and the Employer;
2. The employer is engaged in any kind of industry;
3. The crime was committed by the employee in the discharge of
their duties; and
4. The execution against the accused has not been satisfied due
to insolvency.
- Philippine Rabbit Lines, Inc. vs. People of the Philippines, G.R. No. 147703, April 14, 2004
 Civil Liability based on Delict

Section 1 of Rule 111 of the current Rules of Criminal Procedure

provides:
When a criminal action is instituted, the civil action for the recovery of
civil liability arising from the offense charged shall be deemed
instituted with the criminal action unless the offended party waives the
civil action, reserves the right to institute it separately or institutes the
civil action prior to the criminal action.
Special Torts
Principle of Abuse of Rights

Article 19 of the Civil Code

Every person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his
due, and observe honesty and good faith.
 Elements of Abuse of Right
1. There is a legal right or duty;
2. The legal right or duty is exercised in bad faith; and
3. For the sole intent of prejudicing or injuring another.
 Basis for Damages in Abuse of Rights
Cases
Article 20 of the Civil Code
Every person who, contrary to law, willfully or negligently
causes damage to another, shall indemnify the latter for the
same.
Acts Contra Bonus Mores

Article 21 of the Civil Code

Any person who willfully causes loss or injury to another in a
manner that is contrary to morals, good customs or public
policy shall compensate the latter for the damage.
 Requisites for Acts Contra Bonus Mores

1. There is an act which is legal;

2. But which is contrary to morals, good customs, public
order or public policy; and
3. It is done with intent to injure.
Principle of Damnum Absque Injuria

Under this principle, damage resulting from the legitimate

exercise of a person’s rights is a loss without injury.
 When is there entitlement to damages
when one suffers injury?
In other words, in order that the law will give redress for
an act causing damage, that act must be not only hurtful,
but wrongful. There must be damnum et injuria. If, as may
happen in many cases, a person sustains actual damage,
that is, harm or loss to his person or property, without
sustaining any legal injury, that is, an act or omission which
the law does not deem an injury, the damage is regarded
as damnum absque injuria. – Sps. Custodio v. CA, G.R. No. 116100, February 9, 1996
 Review Questions

1. What is a quasi-delict?
2. Can a criminal act be the basis of a quasi-delict?
3. What is the Rule against Double Recovery?
4. Distinguish Culpa Aquiliana from Culpa Contractual.
5. Distinguish Culpa Aquiliana from Culpa Criminal.
6. What is Vicarious Liability?
7. Distinguish Vicarious Liability from Subsidiary Liability.
8. What are the requisites in order for an employer to
become liable for the negligence of his or her
employees?
9. Enumerate the elements of Abuse of Rights.
10.When is there damnum absque injuria?
Damages
Damages Defined

The term “damages” was defined by the Supreme Court in the

case of MEA Builders, Inc. v. Court of Appeals, G.R. No.
121484, 31 January 2005), as the sum of money which the
law awards or imposes as a pecuniary compensation, a
recompense, or satisfaction for an injury done or a wrong
sustained as a consequence either of a breach of a
contractual obligation or a tortious act.
 Kinds of Damages
In Philippine laws, there are six kinds of damages, namely:
1. Actual or compensatory Damages
2. Moral Damages
3. Exemplary or corrective Damages
4. Liquidated Damages
5. Nominal Damages
6. Temperate or moderate Damages
 Special versus Ordinary Damages
Special Damages Ordinary Damages
Special Damages are those Ordinary Damages are those
which exist because of special generally inherent in a
circumstances and for which breach of a typical contract
a debtor in good faith can be
held liable if he had been
previously informed of such.
circumstances.
 ACTUAL/ COMPENSATORY DAMAGES
ACTUAL/ COMPENSATORY DAMAGES
Purpose
Actual or compensatory damages simply make good or replace the
loss caused by the wrong.

Manner of Determination
Claimant must produce competent proof or the best evidence
obtainable such as receipts to justify an award therefore. Actual or
compensatory damages cannot be presumed but must be proved
with reasonable certainty. (People v. Ereno, Feb. 22, 2000)

Special/Ordinary
Ordinary
 MORAL DAMAGES
Purpose
Awarded only to enable the injured party to obtain means, diversion or amusement that will
alleviate the moral suffering he has undergone, by reason of defendants culpable action.
(Robleza v. CA, 174 SCRA 354)

Manner of Determination
No proof of pecuniary loss is necessary. The assessment is left to the discretion of the court
according to the circumstances of each case. However, there must be proof that the
defendant caused physical suffering etc. (Compania Maritima v. Allied Free Worker’s Union,
G.R. No. L-31379, Aug. 29, 1988). GR: Factual basis must be alleged. Aside from the need for
the claimant to satisfactorily prove the existence of the factual basis of the damages, it is
also necessary to prove its causal relation to the defendant’s act (Raagas v. Trava, G.R. No. L-
20081, Feb. 27,1968; People v. Manero, G.R. Nos. 86883-85, Jan. 29, 1993).

Exception: Criminal cases. Moral damages may be awarded to the victim in criminal
proceedings in such amount as the court deems just without need for pleading or proof of
the basis thereof (People v. Paredes, July 30, 1998).

Special/Ordinary
• Special
 NOMINAL DAMAGES

Purpose
Vindicating or recognizing the injured party’s right to a property that
has been violated or invaded. (Tan v. Bantegui, 473 SCRA 663)

Manner of Determination
No proof of pecuniary loss is necessary. Proof that a legal right has
been violated is what is only required. Usually awarded in the absence
of proof of actual damages.

Special/Ordinary
Special
 TEMPERATE DAMAGES

Purpose
When the court is convinced that there has been such a loss, the judge is
empowered to calculate moderate damages rather than let the complainant
suffer without redress. (GSIS v. Labung-Deang, 365 SCRA 341)

Manner of Determination
May be recovered when the court finds that some pecuniary loss has been
suffered but its amount cannot, from the nature of the case, be proved with
certainty. No proof of pecuniary loss is necessary.

Special/Ordinary
Special
 LIQUIDATED DAMAGES

Purpose
Liquidated damages are frequently agreed upon by the parties, either by way
of penalty or in order to avoid controversy on the amount of damages.

Manner of Determination
If intended as a penalty in obligations with a penal cause, proof of actual
damages suffered by the creditor is not necessary in order that the penalty
may be demanded (Art. 1228, NCC). No proof of pecuniary loss is necessary.

Special/Ordinary
Special
 EXEMPLARY/CORRECTIVE DAMAGES
Purpose
Exemplary or corrective damages are intended to serve as a deterrent to
serious wrongdoings. (People v. Orilla, 422 SCRA 620)

Manner of Determination
1. That the claimant is entitled to moral, temperate or compensatory
damages; and
2. That the crime was committed with 1 or more aggravating circumstances,
or the quasi-‐delict was committed with gross negligence, or in contracts and
quasi-contracts the act must be accompanied by bad faith or done in wanton,
fraudulent, oppressive or malevolent manner. No proof of pecuniary loss is
necessary.

Special/Ordinary
Special
Post-Assessment Activity

QUIZ 5
END OF PRESENTATION