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Torts & Damages 2013

Atty. Jess Lopez

1. Cachero v. Manila Yellow Taxicab Co., Inc., G.R. No. L-8721, May 23, 1957 (En Banc) Facts: A taxi owned by defendant driven by Mr. Mira Abinion hit a MERALCO post. As a result, the passenger thereof (Atty. Cachero) suffered physical injuries slight in nature. Said driver was prosecuted and pled guilty. Thereafter, Cachero demanded from defendant an amount totaling P79,245 as damages. Though defendant wanted to settle the claim amicably, it could not accede to Cacheros demand of a minimum of P72k. As a res ult, Cachero sued defendant. The trial court awarded P5,900 total in damages including P2,000 moral damages. Both appealed from said decision. Issue: Is he entitled to moral damages? Held: NO. Defendant does not fall under the cases where moral damages are awardable (Art. 2219). The complaint was based on an alleged breach of camontract of carriage (rather than a quasi-delict resulting in injury) due to the defendants failure to bring him to his destination safely. However, the driver was not made party to the case. It was the driver who committed a criminal offense resulting in physical injuries. Also, the action was not based on the defendants vicarious liability based on Art. 2180 or Art. 103 of the RPC. A. Quasi-delict distinguished from other sources of obligations

1. Cangco v. Manila Railroad Co., 38 Phil. 768 (1918) Facts: Canco, a clerk of the defendant, was on his way home via train. As the train was about to stop in the station where Cangco usually deboards, Cangco, alighted from the train as he and other passengers always did. Unfortunately, due to the fact that it was nighttime and that the station was dimly lighted, Cangco was not able to see that there was a sack of melons on the platform. Thus, he landed on said melons and slipped. He was drawn under the train and his arm was injured so severely that it had to be amputated. Cangco sued defendant for damages due to negligence of servants & employees in placing the sack of melons which obstructed the passengers egress. Held: Manila Railroad is liable under the old civil code. It is implied from the contract of carriage of the defendant the duty to carry him safely and provide him with a safe means to come in and out o the train. Being contractual, that duty was direct and immediate. Its nonper formance cannot be excused due to the fault of defandants employees. Also, no contributory negligence can be attributed to Cangco because, as a public carrier, he had the right to assume that the platform was clear. Cangco was also very familiar with the place. As such, there can be no uncertainty in his mind that what he was about to do was indeed unsafe. 2. Air France v. Carrascoso, 18 SCRA 155 (1966) Facts: Respondent bought First Class tickets from petitioners agent (PAL) for a trip from Manila to Lourd es. Upon confirmation of said tickets, he flew first class to the first 2 legs of the trip (HK, BKK). However, in Bangkok, after being seated, the manager of the petitioner asked him to transfer to the Tourist Class in lieu of another passenger (white man). Reluctantly, he did. Respondent sued petitioner for damages on the ground of wrongful expulsion to which the Trial Court & the CA granted and awarded him moral (25k), exemplary (10k), and attorneys fees (10k). Petitioner appealed contending that its contract with the passenger was subject for confirmation. Held: Air France is liable. The facts and circumstances of the cases make it reasonable for respondent to be awarded said damages. Neither the captain nor any employee of the petitioner intervened. There was also no evidence presented that the white man had a prior right/reservation. Respondent is entitled to said First Class seat. The managers arbitrary act made respondent suffer humiliation. Said manager acted in a manner contrary to morals, good customs, public policy (Art. 21 CC). Passengers do not contract merely for transportation. They have a right to be treated by the carriers employees with respect and kindness. Petitioners contract is attended by a public duty and a violation of which is considered a quasi delict wherein damages may be awarded. 3. Singson v. Bank of the Philippine Islands, 23 SCRA 1117 (1968) Facts: Singson was one of the defendants in a separate civil case along with a certain Lobregat and Villa-Abrille & Co. They were made liable to pay the sum of P105k. Singson and Lobregat appealed. However, Villa-Abrille & Co. did not and, as such, the decision became final with regard to it. Thereafter, a writ of garnishment was issued and was sent to BPI to which said Co. had an account. Upon receipt, without reading the body of the writ saying it was only intended for the accounts of other defandants, the clerk prepared a letter regarding the freezing of Singsons account for signature of the BPI President. Upon his signature, Singsons account was frozen. Meanwhile, Singson issued checks to corporations to whom he had business with but due to the freezing, the checks were dishonored to the detriment of Singson. Singson wrote the back explaining the contents of the writ. Upon realizing its mistake, BPI through its President immediately corrected it. Despite this, Singson sued for damages on the ground of illegal freezing of the said account. Unfortunately, CFI Manila denied the complaint saying that Singson cannot maintain an action for quasi delict because of the contractual nature of the relationship between the parties. Held: The existence of a contractual relationship between parties is not a bar for a commission of a tort by one against another. Even more so, it does not bar the consequent recovery for damages of the party injured. However, since BPI corrected their mistake immediately, nominal damages of P1,000 (need not be proven) + P500 attorneys fees would suffice. 1 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

4. Fabre v. Court of Appeals, G.R. No. 111127, July 26, 1996 Facts: Sps. Fabre owned a Mazda minibus used as a service vehicle to take children to and from school (St. Scho Manila). The sps hired Cabil after trying him out for 2 weeks. WWCF, a Christian group, hired said bus to transport their members from Mnla-La Union and back. It was Cabils first trip to La Union. Upon taking a detour to avoid bridge repair, they came upon a sharp curve. It was raining, slippery, dark, and speeding at 50kp (20kph limit). As such, the driver lost control and fell on its side after hitting various objects in the vicinity. Several were injured. A certain Amy Antonio was severely injured that she became a paraplegic. She sued the Sps. as well as Cabil and the lower courts found them solidarily liable to pay plaintiff damages (CA increased compensatory damages from 500k to 600k). Fabre now challenges the award of damages claiming it to be unconscionable and speculative as well as the holding that Fabre is liable. Held: LIABLE. Cabil is liable for being negligent. Fabres are also presumed negligent in the selection and supervision of employees. Employer did not properly examine Cabils qualifications, experience etc. Due diligence in supervision requires formulation of rules and regulations for guidance of employees and issuance of proper instructions as well as actual implementation and monitoring of compliance with said rules. Also, it does not matter if one is in the common carrier business principally or just a mere sideline. As such, extraordinary diligence should be exercised to safely transport passengers to their destination. Note: If a case was expressly tried and decided exclusively based on culpa contractual, a mere driver cannot be held liable for the injury caused by his negligence because the carrier and the passengers are the parties to the contract of carriage. (Phil. Rabbit v. CA) 5. Light Railway Transit Authority v. Navidad, 397 SCRA 75 (2003) Facts: Nicanor Navidad, while drunk, purchased a token to enter the EDSA LRT station. Whilst standing by the platform, security guard (Escartin) approached Navidad and a fist fight occurred wherein Navidad fell into the LRT tracks. At this time, a train operated by Roman passed by and struck Navidad. The latters wife filed a complaint for damages against Escartin, Roman, Prudent Security Agency, and LRTA. Roman & LRTA presented evidence while Prudent & Escartin filed a demurrer contending that Navidad did not prove Escartins negligence. Trial court held Prudent & Escartin liable. On appeal, CA held LRTA and Roman liable and exonerated Prudent and Escartin. CA held that a contract of carriage existed upon Navidads purchase of the token and thus must be complied with. CA also held that Navidad failed to show that Escartin inflicted fist blows upon the victim but merely presented fact of his death as having hit by the LRT. Held: Only LRTA is liable. The duty of common carriers to provide safety to its passengers obligates it not only during the trip but for so long as they are in the premises. A common carrier is liable for death/injury to passengers (a) through the negligence or willful acts of its employees; or (b) on account of willful acts or negligence of other passengers or of strangers if the common carriers employees through the exercise of due diligence could have prevented or sto pped the act or omission. In such cases, a carrier is presumed to have been at fault or negligent. By simple proof of injury, the passenger is relieved of the duty to establish the fault or negligence of the carrier or its employees. The burden shifts upon the carrier to prove that the injury is due to an unforeseen event or force majeure. LRTA was presumed negligent. Also, Roman is not part of the contractual tie between LRTA (carrier) and Navidad (passenger). Roman can only be made liable for his own fault or negligence. Quasi-delict v. Delicts o Revised Penal Code Articles 100 and 365

1. Barredo v. Garcia, 73 Phil. 607 (1942) Facts: A head on collision between a Malate Taxicab driven by Fontanilla (owned by Barredo) and a carretela occurred. The driver was speeding on the wrong side of the road. The passenger of the carratela, Faustino Garcia (16 y.o) was injured and died 2 days later. The driver was convicted while the right to file a separate civil action was reserved. Thereafter, parents of Garcia filed an action under Art. 1903 (old CC, quasi delict) against Barredo as the proprietor and employer of Fontanilla. It was contended that he did not exercise the diligence of a good father when he employed Fontanilla who had previously violated traffic laws. As such, the same court awarded damages in favor of plaintiffs. In Barredos defense, he contended that his liability should only be subsidiary pursuant to the RPC. Also, he claims that 1903 only applies to obligations arising from wrongful or negligent acts/omissions not punishable by law. Hence, since RPC punishes said acts, 1903 no longer applies. Issue: Whether plaintiffs may bring a separate civil action against Barredo, thus making him primarily and directly liable under 1903 as Fontanillas employer. Held: Yes. Counsel for defendant failed to recognize the distinction between civil liability arising from crime (Penal Code) and responsibility for quasi-delict (CC). A quasi delict/culpa aquiliana is a separate and distinct legal institution, 2 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

independent from the civil responsibility arising from criminal liability. The same negligent act may produce either a civil liability arising from a crime or a separate responsibility for fault/negligence. Under 1903, an employer is primarily and directly responsible for the employees negligent acts. Culpa Aquiliana Private concerns Indemnification Broad Delito Public interest Punish/correct the criminal act Not broad (punishable only by law)

What it affects Consequence Extent

2. Elcano v. Hill, G.R. No. L-24803, May 26, 1977 Facts: Sps. Elcano filed a complaint for damages against Reginald Hill for the death of their son Agapito. However, CFI of QC acquitted Hill on the ground that the act was not criminal because of lack of intent to kill, coupled with mistake. Sps. Elcano wish to continue to hold Hill civilly liable for culpa aquiliana. Issue: Is the civil action for quasi delict barred by the acquittal of Hill in the criminal case? Held: Civil action for quasi delict can proceed. The concept of culpa aquiliana includes acts which are criminal in character, whether voluntary or negligent. Acquittal from an accusation of criminal negligence, whether on reasonable doubt not, shall not be a bar to a subsequent civil action, not for civil liability arising from the crime, but for damages due to quasi delict. Double recovery, however, is prohibited. I. QUASI-DELICT A. Elements

1. Andamo v. Intermediate Appellate Court, G.R. No. 74761, November 6, 1990 Facts: Emmanuel & Natividad Andamo are the owners of a parcel of land in Silang Cavite. Adjacent to that is Missionaries of Our Lady of La Salette (Missionaries), a religious corporation. Within the land of respondent, waterpaths and contrivances, including an artificial lake, were constructed, which allegedly inundated and eroded Andamos land which caused a young man to drown, damaged crops and plants, washed away costly fences, endangered the lives of Andamos and their laborers during rainy and stormy seasons, and exposed plants and other improvements to destruction. In 1982, the Andamos filed a criminal case against respondent for destruction by means of inundation under Article 324 of the RPC. Subsequently, they also filed a civil case for damages with prayer for writ of preliminary injunction with the same court. Missionaries countered the civil case by filing a motion to dismiss, which was eventually granted by the Court. The Court ratiocinated that it had no jurisdiction over the subsequent civil case, as the criminal case which was instituted ahead of the civil case was still unresolved. Issue: Whether or not the dismissal was proper. Held: NO. (1) On the elements of Quasi delict : A careful examination of the aforequoted complaint shows that the civil action is one under Articles 2176 and 2177 of the Civil Code on quasi-delicts. All the elements of a quasi-delict are present, to wit: (a) damages suffered by the plaintiff, (b) fault or negligence of the defendant, or some other person for whose acts he must respond; and (c) the connection of cause and effect between the fault or negligence of the defendant and the damages incurred by the plaintiff. Clearly, from the complaint, the waterpaths and contrivances built by respondent corporation are alleged to have inundated the land of petitioners. There is, therefore, an assertion of a causal connection between the act of building these waterpaths and the damage sustained by petitioners. Such action if proven constitutes fault or negligence which may be the basis for the recovery of damages. (2) On the propriety of the motion to dismiss: Article 2176 of the Civil Code imposes a civil liability on a person for damage caused by his act or omission constituting fault or negligence. Whenever it refers to "fault or negligence," 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 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. Thus, the civil action for quasi delict may proceed independently. 2. Lucas v. Tuao, G.R. No. 178763, April 21, 2009 Facts: Peter Lucas contracted sore eyes in his right eye. He was referred to Dr. Tuano, an ophthalmologist at St. Lukes. Upon consultation with Dr . Tuano (9 days since the problems began), he was already taking Maxitrol to address the problem. Upon examination, Tuano diagnosed Peter with conjunctivitis or sore eyes. He prescr ibed Spersacet -C6 eye drops for Peter and told the latter to return for follow -up after a week. A week later , Tuano told Peter that the sore eyes 3 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

in the latters right eye had already cleared up and he could discontinue the Spersacet -C. However, The same eye developed Epidemic Kerato Conjunctivitis (EKC) so Tuano prescribed to the former a steroid -based eye drop called Maxitrol. On a later check -up, Tuano instructed the former to taper down the dosage of Maxitrol , because the EKC in his right eye had already resolved . Dr. Tuano specifically cautioned Peter that , being a steroid, Maxitrol had to be withdrawn gradually; otherwise, the EKC might recur. Peter would go back and forth to Tuanos clinic to complain about the worsening condition of his right eye. In these instances, Tuano would prescribe different meds to counter the recurring EKC. On Dec. 1998, Peter had no vision in his right eye; right eye appeared to be bloody and swollen. Tuano ordered the immediate discontinuation of Maxitrol and prescribed other meds. Peter went to see another ophthalmologist , Dr. Batungbacal. Dr. Batungbacals diagnosis was Glaucoma and recommended Laser Trabeculoplasty . Dr. Tuano was at a loss as to how to balance the treatment of Peters EKC vis -a-vis the presence of glaucoma thus he referred Peter to Dr. Agulto who concurred on Peters condition and recommended the same medication. Also, Peter was prodded by his friends to seek a second medical opinion. Thus he consulted Dr. Mario V. Aquino who specializes in the treatment of glaucoma. He informed Peter that his eyes were relatively normal except for the tubular vision in Peters right eye. Petitioners claimed that Dr. Aquino essentially told Peter that the latters condition would require lifetime medication and follow-ups. Thus, he underwent 2 procedures of the laser trabeculoplasty. Claiming to have steroid -induced glaucoma and blaming Tuano for the same , Peter filed a complaint for damages against Tuano. He averred that as the direct consequence of hisprolonged use of Maxitrol, he suffered from steroid induced glaucoma as well as incurable impairment of vision which may lead to permanent blindness . They prayed that prayed that Tuano be adjudged liable for compensation for his impaired vision , actual, moral and exemplary damages plus attorneys fees. In his defense, Tuano asserted that the drug-induced glaucoma is temporary and curable and that Steroids are prescribed to treat EKC. Contrary to Peters fallacious claim, he did NOT continually prescribe the drug Maxitrol because it was discontinued as soon as EKC disappeared and was resumed only when EKC reappeared. He stressed that Peters glaucoma can only be due to other causes not attributable to steroids long standing glaucoma; and that in fact steroids were in fact beneficial as they provoked the latest glaucoma to be revealed earlier. RTC dismissed the complaint for insufficient evidence. Upon appeal, CA also dismissed it. Issue: Did Lucas fail to prove that Tuano ignored the standard medical procedure for ophthalmologists as well as administered medication with recklessness and exhibited an absence of competence and skills expected of him? Held: YES. The case at bar is a medical negligence case against a physician based on the latters professional negligence. In order to prevail, the petitioner is required to prove by preponderance of evidence that the physician failed to exercise that degree of skill, care, and learning possessed by other persons in the same profession; and that as a proximate result of such failure, the patient or his heirs suffered damages. Such claim for damages is almost always anchored on the alleged violation of Article 2176 of the Civil Code. In medical negligence/malpractice cases, there exists a physician-patient relationship. To hold the physician liable for damages, 4 elements must be shown to co-exist: (1) duty (2) breach; (3) injury; and (4) proximate causation. There is breach of duty of care, skill and diligence, or the improper performance of such duty when the patient is injured in body or in health. Proof rests upon the testimony of an expert witness that the treatment accorded to the patient failed to meet the standard level of care, skill and diligence which physicians in the same general line of practice ordinarily possess and exercise in like cases. Proof of breach of duty on the part of the attending physician is insufficient; there must be a causal connection between said breach and the resulting injury - injury for which recovery is sought must be the legitimate consequence of the wrong done. In other words, negligence must be the proximate cause of the injury or that cause, which, in the natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. To establish the proximate cause, one must similarly use expert testimony to present to the court a realistic assessment of the likelihood that the physicians alleged negligence caused the patients injury. No question that a physician-patient relationship developed between Dr. Tuano and Peter . The onus probandi was on the patient to establish before the trial court that the physicians ignored standard medical procedure. Howecer, there was absolute failure on the part of petitioners to present any expert testimony to establish: ( 1) the standard of care to be implemented by competent physicians 2) that, in his treatment of Peter , Dr. Tuano failed in his duty to exercise said standard of care that any other competent physician would use, 3) that the injury or his glaucoma was the result of his use of Maxitrol, as prescribed by Dr .Tuano. Failure to prove the first element alone is already fatal . Petitioners maintain that Dr. Tuano failed to follow in Peters case the required procedure for the prolonged use of Maxitrol .

Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

Absent a definitive standard of care or diligence required of Dr . Tuano under the circumstances , we have no means to determine whether he was able to comply with the same. The Court has no yardstick upon which to evaluate or weigh the attendant facts to state with confidence that the acts complained of, indeed, constituted negligence. Critical and clinching factor in a medical negligence case is proof of the causal connection between the negligence which the evidence established and the plaintiffs injuries. It is necessary to prove not only that he has been injured and defendant has been at fault, but also that the defendants fault caused the injury. Causation must be proven within a reasonable medical probability based upon competent expert testimony - proof that Peters glaucoma would not have occurred but for Dr. Tuanos supposed negligent conduct . What constitutes proper medical treatment is a medical question that should have been presented to experts. If no standard is established the courts have no standard by which to gauge the basic issue of breach. Absent expert medical opinion, the courts would be dangerously engaging in speculations. 3. Huang v. Philippine Hoteliers Inc., G.R. No. 180440, December 5, 2012 Facts: On June 1995, Delia Goldberg (Delia), a registered guest of Dusit Hotel, invited her friend, Dr. Genevieve L. Huang, for a swim at the hotels pool. At around 7:00 p.m., the hotels pool attendant informed them that the swimming pool area was about to be closed. The 2 went to the shower room adjacent to the swimming pool to take a shower and dress up. When they came out of the bathroom, the entire swimming pool area was already pitch black and there were the only ones there. The doors were also locked. After some time, Huang saw a phone b ehind the lifeguards counter. As she went inside, the wooden countertop fell on her head and knocked her down almost unconscious. Delia immediately notified the hotel phone operator of the incident. Not long after, the hotel staff arrived at the main entrance door of the swimming pool area and gave her an icepack. Huang demanded the services of the hotel physician. Hotel physician, Dr. Dalumpines, instead of immediately providing the needed medical assistance, presented a Waiver and demanded that it be s igned by Huang, otherwise, the hotel management will not render her any assistance. Huang refused to do so and left the hotel. Thereupon, Huang consulted several doctors (7 neuro, 1 optha) because she began experiencing on and off severe headaches that caused her three sleepless nights. They all said she had a serious brain injury. In defense, PHI and Dusit denied all the material allegations. According to them, a sufficient notice on the glass door of the hotel leading to the swimming pool area to apprise the people, especially the hotel guests, that the swimming pool area is open only from 7am to 7pm. Nevertheless, the lights thereon are kept on until 10:00 p.m. for, (1) security reasons; (2) housekeeping personnel to do the cleaning of the swimming pool surroundings; and (3) people doing their exercise routine at the Slimmers World Gym, which was open until 10pm. Even granting that the lights in the hotels swimming pool area were turned off, it would not render the area completely dark as the Slimmers World Gym near it was well- illuminated. Around 7:40pm, Ms. Pearlie (hotel nurse) was informed that there was a guest requiring medical assistance. She hurriedly went to the pool area. Although Huang looked normal as there was no indication of any blood or bruise on her head, Ms. Pearlie still asked her if she needed any medical attention to which she replied that she is a doctor, she was fine and she did not need any medical attention. Instead, requested for a hirudoid cream to which Ms. Pearlie acceded. Dr. Dalumpines came to check Huangs condition. Huang insisted that she was fine and that the hirudoid cream was enough. Dr. Dalumpines requested Huang to execute a handwritten certification regarding the incident that occurred that night. An XRay test was also suggested to Huang but she replied that it was not necessary. She also refused further medical attention. On Aug 1996, Huang filed a complaint for damages against respondents. The trial court dismissed the Complaint for lack of merit. On appeal, Huang belatedly raises the defense on breach of contract. She maintains that that an implied contract existed between them in view of the fact that the hotel guest status extends to all those who avail of its services its patrons and invitees. The CA affirmed the TCs decision. MR denied. Hence, this Petition for certiorari under Rule 45. She also avows that the doctrines of res ipsa loquitur and respondeat superior are applicable in this case. It was an accident caused by the fact that the hotel staff was not present to lift the heavy counter top for Huang as is normally expected of them because they negligently locked the main entrance door of the hotels swimming pool area. Issue: Whether respondents PHI and Dusit are liable to Dr. Huang. Held: NO. Initially, Huang sued respondents mainly on account of their negligence but not on any breach of contract. Presently, she claims that her cause of action can be based both on quasi-delict and breach of contract. A perusal of the complaint evidently shows that her cause of action was based solely on quasi-delict (negligence). It is evident from the complaint and from her open court testimony that the reliance was on the alleged tortious acts committed against her by respondents, through their management and staff. In quasi-delict, there is no presumption of negligence and it is incumbent upon the injured party to prove the negligence of the defendant, otherwise, the formers complaint will be dismissed. In a breach of contract, negligence is presumed so 5 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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Atty. Jess Lopez

long as it can be proved that there was breach of the contract and the burden is on the defendant to prove that there was no negligence in the carrying out of the terms of the contract; the rule of respondeat superior is followed. It is now too late to raise the said argument for the first time before the SC without causing injustice. As Huangs cause of action is based on quasidelict, it is incumbent upon her to prove the presence of the following requisites before respondents PHI and Dusit can be held liable, to wit: (a) damages suffered by the plaintiff; (b) fault or negligence of the defendant, or some other person for whose acts he must respond; and (c) the connection of cause and effect between the fault or negligence of the defendant and the damages incurred by the plaintiff. Further, since her case is for quasi-delict, the negligence or fault should be clearly established as it is the basis of her action. The burden of proof is upon her. Second element Absent: In this case, Huang utterly failed to prove the alleged negligence of respondents. Other than her self-serving testimony that all the lights in the hotels swimming pool area were shut off and the door was locked, which allegedly prompted her to find a way out and in doing so a folding wooden counter top fell on her head causing her injury, no other evidence was presented to substantiate the same. Even her own companion during the night of the accident inside the hotels swimming pool area was never presented to corroborate her allegations. On the other hand, the witnesses presented by the respondents positively declared that it has been a normal practice of the hotel management not to put off the lights until 10pm. to allow the housekeepers to do the cleaning of the swimming pool surroundings, including the toilets and counters. There is a remote possibility that the hotels swimming pool area was in complete darkness as the aforesaid gym was then open until 10pm, and the lights radiate to the hotels swimming pool area. Ergo, she cannot fault the Hotel for the injury she allegedly suffered because she herself did not heed the warning at the pool to the effect that it was only open from 7:00 to 7:00 P.M. Thus, when the her own negligence was the immediate and proximate cause of his injury, she then cannot recover damages. Even Huangs assertion of negligence on the part of respondents in not rendering medical assistance to her is preposterous. Her own Complaint affirmed that respondents afforded medical assistance to her after she met the unfortunate accident inside the hotels swimming pool facility. Moreover, the Hotel shouldered the expenses for the MRI services at the Makati Med. Res Ipsa Loquitur & Respondeat Superior: With regard to Huangs contention that the principles of res ipsa loquitur and respondeat superior are applicable in this case, this Court holds otherwise. Res ipsa loquitur is a Latin phrase which literally means the thing or the transaction speaks for itself. It relates to the fact of an injury that sets out an infere nce to the cause thereof or establishes the plaintiffs prima facie case. The doctrine finds no application if there is direct proof of absence or presence of negligence. In the case at bench, even granting that respondents staff negligently turned off the lights and locked the door, the folding wooden counter top would still not fall on Huangs head had she not lifted the same. Records showed that she lifted the said folding wooden counter top that eventually fell and hit her head. Doctrine of respondeat superior finds no application in the absence of any showing that the employees of respondents were negligent. Since in this case, the trial court and the CA found no negligence on the part of the employees of respondents, thus, the latter cannot also be held liable for negligence. With the foregoing, the following were clearly established, to wit: (1) petitioner stayed in the hotels swimming pool facility beyond its closing hours; (2) she lifted the folding wooden counter top that eventually hit her head; and (3) respondents extended medical assistance to her. As such, no negligence can be attributed either to or to their staff and/or management. Third element: On the issue on whether Huangs debilitating and permanent injuries were the result of the accident she suffered at the hotels swimming pool area, the Court holds that there is no cogent reason to depart from the lower courts findings. (1) Huang had a past medical history which might have been the cause of her recurring brain injury. (2) The findings of Dr. Perez did not prove a causal relation between the 11 June 1995 accident and the brain damage suffered by Huang. Dr. Perez himself testified that the symptoms being experienced might have been due to factors other than the head trauma she allegedly suffered. (3) Dr. Sanchezs testimony was hearsay. (4) Medical reports/evaluations/certifications issued by myriads of doctors whom petitioner sought for examination or treatment were neither identified nor testified to by those who issued them. Being deemed as hearsay, they cannot be given probative value. All told, in the absence of negligence on the part of respondents as well as their management and staff, they cannot be made liable to pay for the millions of damages prayed for. Since respondents arc not liable, it necessarily follows that First Lepanto cannot also be made liable under the contract of Insurance. B. 6 No Double Recovery Rule Civil Code: Arts. 1161, 2176, and *2177 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

1. Joseph v. Bautista, 170 SCRA 540 (1989) Luis Joseph is the plaintiff in a Civil Case entitled Joseph v. Perez, Villa, Vargas, Sioson, Villanueva, and Pagarigan before the CFI of Bulacan; Judge Bautista presided. Perez owned a cargo truck for conveying cargo and passengers from Dagupan to Manila. In January 1973, Villa drove the truck from Valenzuela to Pangasinan. Joseph, with his livestock, boarded the truck going to Valenzuela, paying P9. On the way, Villa tried to overtake a tricycle, but at the same time, a pick-up truck owned by Sioson and Pagarigan, and driven by Villanueva, tried to overtake the cargo truck. The cargo truck was forced to veer towards the shoulder, ramming a mango tree. Joseph sustained a bone fracture in one of his legs. He then filed a complaint for damages against Perez (owner) based on a breach of contract of carriage; against Sioson and Villanueva, quasi-delict. As he could not ascertain who the real owners of the vehicles were, he amended his complaint to implead everyone, including a certain Cardeno. On 27 September 1974, Sioson, Villanueva, Pagarigan, and Cardeno, through the Insurance Corporation of the Philippines, paid Josephs claim for P1,300. Petitioner executed a release of claim against them. They thus filed a motion to exclude themselves from the case. Perez opposed this, and filed a Counter Motion to Dismiss on the ground that the release inured to the favor of all respondents, as their liability was solidary. The judge agreed, and dismissed the case; a Motion for Reconsideration was denied. Issue: Whether or not the release of claim inured to the benefit of Perez. Held: YES. A Cause of Action is the delict or wrongful act or omission violating the rights of a party. It is true that a single act or omission can be violative of various rights at the same time, as when the act constitutes juridically a violation of several separate and distinct legal obligations. However, where there is only one wrong, there is only one cause of action, regardless of the number of the rights violated. Here, there was only one injury sustained by the Joseph, vesting him with only one cause of action, though with different remedies against different persons. A recovery under one remedy necessarily bars recovery under the other; the rationale against this is the rule against unjust enrichment. Also, being solidarily liable, full payment by one or some, as well as their subsequent release, resulted in the extinguishment and release from liability all other solidary debtors. 2. Atlantic Gulf and Pacific Company of Manila, Inc., v. CA, G.R. No. 114841-42, October 20, 1995 Facts: Sometime in 1982, petitioner commenced the construction of a steel fabrication plant in the Batangas, necessitating dredging operations in an area adjacent to the real property of private respondents Castillo. An action for damages against herein petitioner was filed by the Castillos alleging that: During the on-going construction of its steel and fabrication yard, petitioners personnel and heavy equipment trespassed into the adjacent parcels of land belonging to them without their consent. Petitioners heavy equipment damaged big portions of their property which were further used by petitioner as a depot or parking lots without paying any rent therefor. As a result of the dredging operation of petitioner, the sea silt and water overflowed and were deposited upon their land. Said property which used to be agricultural lands principally devoted to rice production could no longer be planted with palay as the soil became infertile, salty, unproductive and unsuitable for agriculture. Petitioner denied all the allegations. Trial court ruled in favor of the Castillos ordering defendant to pay for damages. On appeal, the CA modified the decision and increased the award for damages. On appeal by certiorari, the SC ruled that CA erred in increasing the award for damages considering that the Castillos did not appeal but affirmed the decision of the trial court in all respects. Petitioner filed a Motion for Reconsideration contending that the Court of Appeals violated Article 2177 of the Civil Code on double recovery which states that: the plaintiff cannot recover damages twice for the same act or omission of the defendant when it condemned the petitioner as a result of its dredging operations, to pay private respondents not only the expected total amount of profits the latter would have derived from the expected sale of their palay harvest for 135 months or over 11 years, from the half hectare agricultural land, but also rentals on the basis of P5.00 per square meter of their said entire landholdings. Issue: Whether or not the provision against double recovery was violated. Held: NO. The Castillos specifically alleged in their complaint that as a result of petitioners dredging operations, the soil of the formers property became infertile, salty, unproductive and unsuitable for agriculture. They further averred that 7 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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petitioners heavy equipment used to utilize (private respondents) land as a depot or parking lot of these equipment(s) without paying any rent therefor. Clearly, petitioner was guilty of two culpable transgressions on the property rights of private respondents: (1) for the ruination of the agricultural fertility or utility of the soil of their property and (2) for the unauthorized use of said property as a dump site or depot for petitioners heavy equipment and trucks. Consequently, there is no merit in said objection of petitioner. 3. Padua v. Robles, G.R. No. L-40486, August 29, 1975 In the early morning of New Years Day of 1969, a taxicab (driven by Punzalan and operated by the Bay Taxi Cab o wned by Robles) struck 10 year old Normandy Padua on the national road in barrio Barretto, Olongapo City. The impact hurled Padua about 40 meters away from the point where the taxicab struck him, as a result of which he died. Normandys parents (Paulino and Lucena Bebin Padua) filed with the CFI Zambales (civil case 427-O) and sought damages from Punzalan and the Bay Taxi Cab. The city fiscal filed with the same court (criminal case 1158-O), charged Punzalan with homicide through reckless imprudence. On October 27, 1969 the court a quo, in civil case 427-O, adjudged for the Paduas but dismissed the complaint against Bay Taxi Cab. Almost a year later, on October 5, 1970, the court a quo, in criminal case 1158-O, convicted Punzalan of homicide through reckless imprudence under Art. 365. The same decision also said: The civil liability of the accused has already been determined and assessed in Civil Case No. 427-O, entitled Paulino Padua, et al. vs. Romeo Punzalan, et al. After the judgment in civil case 427-O became final, the Paduas sought execution thereof. This proved futile and the corresponding court officer returned the writ of execution unsatisfied. Unable to collect the amount of P27,000 awarded in their favor, the Paduas instituted action in the same court against Gregorio N. Robles to enforce the latters subsidiary responsibility under the provisions of article 103 of the Revised Penal Code. Robles filed a motion to dismiss based on (1) bar of the cause of action by a prior judgment and (2) failure of the complaint to state a cause of action. The court a quo granted Robles motion to dismiss on the ground that the Paduas complaint states no cause of action. Paduas elevated the case to CA and CA certified case to SC. Issue: (1) W/N the judgment in criminal case 1158-O includes a determination and adjudication of Punzalans civil liability arising from his criminal act upon which Robles subsidiary civil responsibility may be based. (2) If in the positive, is there double recovery? Held: Yes. There was an intention to adjudicate Punzalans civil liability from the criminal case. However, there is no double recovery. Hence, Paduas are entitled to the civil liability, which stems from the subsidiary civil responsibility of Robles. It would appear that a plain reading of the judgment in criminal case 1158-O easily results in the conclusion that the said judgment assessed no civil liability arising from the offense charged against Punzalan. However, a careful study of the judgment in question, the situation to which it applies, and the attendant circumstances, would yield the conclusion that the court a quo, on the contrary, recognized the enforceable right of the Paduas to the civil liability arising from the offense committed by Punzalan and awarded the corresponding indemnity therefor. The same judge tried, heard, and determined both civil case 427-O and criminal case 1158-O. Knowledge of and familiarity with all the facts and circumstances relevant and relative to the civil liability of Punzalan may thus be readily attributed to the judge when he rendered judgment in the criminal action. Therefore, it cannot reasonably be contended that it was the intention, in its judgment in criminal case 1158-O, to omit recognition of the right of the Paduas to the civil liability arising from the offense of which Punzalan was adjudged guilty and the corollary award of the corresponding indemnity therefor. Clearly, it was the intention of the court to accord affirmation to the Paduas right to the civil liability arising from the judgment against Punzalan in criminal case 1158- O. Indeed, by including such statement in the dispositive portion of the said judgment, the court intended to adopt the same adjudication and award it made in civil case 427-O as Punzalans civil liability in criminal case 1158-O. In negligence cases, the offended party (or his heirs) has the option between an action for enforcement of civil liability based on culpa criminal under article 100 and an action for recovery of damages based on culpa aquiliana under article 2177. Article 2177 of the Civil Code, however, precludes recovery of damages twice for the same negligent act or omission. The Court finds it immaterial that the Paduas chose, in the first instance, an action for recovery of damages based on culpa aquiliana under articles 2176, 2177, and 2180, which action proved ineffectual. (as proven by the unsatisfied writ of execution from the civil case) There is no inconsistency between the aforementioned action previously availed of by the Paduas and their subsequent application for enforcement of civil liability arising from the offense committed by Punzalan and, consequently, for exaction of Robles subsidiary responsibility . Allowance of the latter application involves no violation of the proscription against double recovery of damages for the same negligent act or omission. For, as hereinbefore stated, the corresponding officer of the court a quo returned unsatisfied the writ of execution issued against Punzalan to satisfy the amount of indemnity awarded to the Paduas in civil case 427-O. 8 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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4. Equitable Leasing Corporation v. Suyom, G.R. No. 143360, September 5, 2002 A Fuso Road Tractor driven by Raul Tutor rammed into house/store of Tamayo in Tondo. The house was destroyed and pinned under the engine of the tractor was the son of respondent Tamayo (Reniel) and the daughter of respondent Oledan (Felmarie). Oledan, Enano and the two sons of respondent Suyom were injured as well. Tutor was convicted of reckless imprudence resulting in multiple homicide and multiple physical injuries. However, respondents failed to recover anything in the criminal case. It was later found out through the LTO that the registered owner of the tractor was petitioner (Equitable Leasing Corporation) leased to Edwin Lim. Respondents filed against Equitable, Ecatine Corp. (employer of Tutor), and Lim a Complaint for damages. The complaint was dropped with respect to Ecatine and Lim. Equitable alleged that the vehicle had already been sold to Ecatine and it was no longer in possession and control of it at the time of the incident. After trial, the court ordered Equitable to pay actual and moral damages to respondent, holding that since the Deed of Sale between petitioner and Ecatine had not been registered with the LTO, the legal owner was still Equitable. The CA sustained the trial court. Issue: Whether or not Equitable is liable for the negligent acts of Tutor despite the fact that he was not its employee. Held: YES. In negligence cases, the aggrieved party may sue the negligent party under (1) Article 100 of the RPC, for civil liability ex delicto; or (2) under Article 2176 of the Civil Code, for civil liability ex quasi delicto. Employees may also be held subsidiarily liable for felonies committed by their employees in the discharge of the latters duties under Article 103 of the RPC. This applies when the employee/s convicted of the crime are found to be insolvent. Under Article 2176 in relation to Article 2180, an action may be instituted against the employer for an employees act or omission, in which case the liability of the employee is direct and primary subject to the defense of due diligence. It does not require that the employee is insolvent in this case. These two causes of action (ex delicto or ex quasi delicto) may be availed of, subject to the caveat that the offended party cannot recover damages twice for the same act or omission or under both causes. Since these two civil liabilities are distinct and independent of each other, the failure to recover in one will not necessarily preclude recovery in the other. Since respondents failed to recover anything in the criminal case, they elected to file a separate civil action for damages based on quasi delict under Article 2176 of the Civil Code. It is clear that the damages caused were due to the fault of the driver of the tractor. Equitable is liable since the deed of sale evidencing the sale of the tractor was not registered with the LTO . The court has held that regardless of sales made of a motor vehicle, the registered owner is the lawful operator insofar as the public and third persons are concerned; consequently, it is directly and primarily responsible for the consequences of its operation. Since Equitable remained the registered owner of the tractor, it could not escape primary liability for the deaths and the injuries arising from the negligence of the driver. In the instant case, the registered owner is considered under the law to be the employer of the driver while the actual operator is deemed to be its agent. The same goes for purposes of the law on quasi-delict. Additionally since respondents have proved the factual bases of the their right to their claim and that the present case falls under Article 2219 (2) which provides for the payment of moral damages in cases of quasi-delict, petitioners are thus entitled to the same 5. Lim v. Ping, G.R. No. 175256, August 23, 2012 Facts: FR Cement Corp (FRCC) owned/operates a cement manufacturing plant. It issued several Withdrawal Authorities (WA) (imagine Warehouse Receipts) for the accounts Fil-Cement and Tigerbilt, cement dealers/traders. The WAs state the quantity of bags the dealer/trader paid for and can withdraw from the cement plant. Said WAs are valid for 6 mos. from issuance unless revoked. Abovementioned traders/dealers sold their WAs covering 50,000 bags to Co Ping. for P63/bag (3.15M). In turn, Co sold the same WAs to Lily Lim at P64/bag (3.2M). Lim was able to withdraw 2,800 bags. Also, she WAs covering 10,000 bags back to Co. In April 1999, FRCC did not allow Lim to withdraw the remaining 37,200 remaining bags. Upon her inquiry, FRCC and Co explained that the plant implemented a price increase and would only release the bags once Lim pays for the price difference or agrees to receive lesser quantity of cement. Thereafter, she demanded Co to resolve her problem with FRCC or for the return of her money. Unsuccessful, a case for Estafa through Misrepresentation/Conversion was filed in RTC Pasig with prayer for damages. Co was later acquitted when his demurrer for insufficient evidence was granted. He was also relieved from civil liability in the same case. Thus, Lim sought refuge before the CA. Pending her appeal, Lim filed a complaint for Specific Performance and Damages in RTC Manila against Co and other parties indicated in the WAs. She asserted 2 causes of actions: (1) Breach of Contract; and (2) Abuse of Rights & Unjust Enrichment. She also prayed for moral & exemplary damages. Co filed a Motion to Dismiss based on lis pendens and forum shopping. Denying the Motion, the RTC said there was no forum shopping because the case pending in the Estafa case and this Civil case are different. 9 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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Issue: Did Lim commit forum shopping in filing the civil case for specific performance and damages while her appeal on the civil aspect for estafa was pending? Held: NO. The first action is clearly a civil action ex delicto, it having been instituted together with the criminal action. The second action is a civil action arising from a contractual obligation and for tortuous conduct (abuse of rights). A single act or omission that causes damage to an offended party may give rise to two separate civil liabilities namely: civil liability arising from the crime (ex delicto) and an independent civil liability. The civil liability arising from the offense or ex delicto is based on the acts or omissions that constitute the criminal offense; hence, its trial is inherently intertwined with the criminal action. If the action for the civil liability ex delicto is instituted prior to or subsequent to the filing of the criminal action, its proceedings are suspended until the final outcome of the criminal action. On the other hand, the independent civil liabilities are separate from the criminal action and may be pursued independently, as provided in Articles 31 and 33 of the Civil Code. Because of the distinct and independent nature of the two kinds of civil liabilities, jurisprudence holds that the offended party may pursue the two types of civil liabilities simultaneously or cumulatively, without offending the rules on forum shopping, litis pendentia, or res judicata. (3) Person/s liable; nature of liability Civil Code o Article 2194 (Memorize)

1. Light Railway Transit Authority v. Navidad, 397 SCRA 75 (2003) See above 2. Philippine National Construction Corporation v. Court of Appeals, G.R. No. 159270, August 22, 2005 Facts: Pampanga Sugar (PASUDECO) is in the business of transporting sugar cane from Pampanga. Many roads became impassable due to the Pinatubo eruption. As such, Toll Regulatory Board (TRB) and PASUDECO entered into a MOA wherein the latter was allowed to enter and pass through NLEX provided it should comply with its safety measures such as putting a sign saying Caution: Convoy Ahead. Also, it was stipulated tha t accidents and damages to toll facilities shall be PASUDECOs responsibility. Said MOA was approved by PNCC At 2:30am, a PNCC security supervisor were patrolling KM 72 when they saw a pile of sugarcane in the middle of the road. To warn motorists, they placed lit cans with diesel oil on the road and lane dividers. They contacted PASUDECO to clean up the mess. Later, 5 PASUDECO men arrived to clear up the highway. They, however, left a few flattened sugarcanes scattered on the road. Since most of the sugarcane had been cleared, the PNCC security supervisor thought there was no longer a need to man the traffic. As such, they removed the warning devices. At about 6:30 a.m, Arnaiz, with Latagan & Generalao, was driving along the NLEX at about 65 kilometers per hour with on their way to Baguio to attend their grandmothers first death anniversary. Their vehicle ran over the scattered sugarcane and flew out of control and turned turtle several times. Consequently, a complaint for damages was filed against PNCC and PASUDECO on the ground of negligence to which the RTC granted. PNCCs appeal was also denied by the CA. CA held that PASUDECO and PNCC are solidarily liable. Issue: Is PNCC liable? Held: YES. PNCC & PASUDECO are SOLIDARILY LIABLE. 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. PNCC failed to exercise the requisite diligence in maintaining the NLEX safe for motorists. The lighted cans and lane dividers on the highway were removed even as flattened sugarcanes lay scattered on the ground. Moreover, they cannot escape liability under the MOA between PASUDECO and TRB, since Latagan was not a party thereto. Both defendants, PASUDECO and PNCC, should be held liable. PNCC was in charge of the maintenance of the expressway and its obligation cannot be destroyed by virtue of a private agreement, to other parties. Moreover, the MOA refers to accidents or damages to the toll facilities. It does not cover damages to property or injuries caused to motorists on the NLEX who are not privies to the MOA.

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Atty. Jess Lopez

PASUDECOs negligence in transporting sugarcanes without proper harness/straps, and that of PNCC in removing the emergency warning devices, were two successive negligent acts which were the direct and proximate cause of Latagans injuries. Where the concurrent or successive negligent acts or omission of two or more persons, although acting independently of each other, are, in combination, the direct and proximate cause of a single injury to a third person and it is impossible to determine in what proportion each contributed to the injury, either is responsible for the whole injury, even though his act alone might not have caused the entire injury, or the same damage might have resulted from the acts of the other tortfeasor. Negligence in order to render a person liable need not be the sole cause of an injury. It is sufficient that his negligence, concurring with one or more efficient causes other than plaintiff's, is the proximate cause of the injury. It is no defense to one of the concurrent tortfeasors that the injury would not have resulted from his negligence alone. Where several causes producing an injury are concurrent and each is an efficient cause without which the injury would not have happened, the injury may be attributed to all or any of the causes and recovery may be had against any or all of the responsible persons although under the circumstances of the case, it may appear that one of them was more culpable, and that the duty owed by them to the injured person was not the same. Each wrongdoer is responsible for the entire result. They are each liable as though his acts were the sole cause of the injury. With PASUDECOs and the petitioners successive negligent acts, they are joint tortfeasors who are solidarily liable under Article 2194. Anent respondent Arnaizs negligence in driving his car, such was only contributory, and considered the same in mitigating the award of damages. Contributory negligence is conduct on the part of the injured party, contributing as a legal cause to the harm he has suffered, which falls below the standard to which he is required to conform for his own protection. 3. Chan, Jr., v. Iglesia Ni Cristo, Inc., G.R. No. 160283, October 14, 2005 Facts: Chan owns Aringay Shell Gasoline Station in La Union. It is bounded on the south by a chapel of the INC. The gas station supposedly needed additional sewerage and septic tanks for its washrooms, so the services of retired army general Ely Yoro was procured by Chan as the former was allegedly a construction contractor in the locality. Chan and Yoro entered a MOA, pertinent portions of which are as follows: 4. Any damage within or outside the property of the CHAN incurred during the digging shall be borne by the YORO 6. In the event that valuable objects are found outside the property line during the said digging, the same shall be divided among the parties (35% for Chan, 65% for Yoro) Diggings thereafter commenced. Chan was informed by the members of the INC that the digging traversed and penetrated a portion of the land belonging to the latter. The foundation of the chapel was affected as a tunnel was dug directly under it to the damage and prejudice of the INC. A complaint against Chan and a certain Teofilo Oller (engineer) was filed by the INC in RTC La Union. Chan and Oller filed an Answer and impleaded Yoro as third party defendant. The trial court absolved Oller and adjudged Chan and Yoro solidarily liable holding that the diggings were not intended for the construction of sewerage and septic tanks but were made to construct tunnels to find hidden treasure. Chan and Yoro appealed separately. The trial court disallowed Yoros appeal for failure to pay the docket and other lawful fees. Chan appeal was given due course but was denied by the CA. Then, Chan instituted the this case. He argues that the MOA executed between him and Yoro is the law between them and must be given weight by the courts. Since nothing in the MOA goes against the law, morals, good customs and public policy, it must govern to absolve him from any liability. Issue: Whether or not the MOA entered into by the Chan and Yoro has the effect of making the latter solely responsible for damages to the respondent. Held: NO. The findings of the trial court and the CA on this point are in complete unison. Chan and Yoro were in quest for hidden treasure and, undoubtedly, they were partners in this endeavor. Based on Art. 2176 the requisites of quasi-delict are the following: (1) There must be an act or omission; (2) Such act or omission causes damage to another; (3) Such act or commission is caused by fault or negligence; and (4) There is no pre-existing contractual relation between the parties. All the requisites are attendant in the instant case. The tortious act was the excavation which caused damage to INC because it was done surreptitiously within its premises and it may have affected the foundation of the chapel. The excavation on INCs premises was caused by fault. Finally, there was no pre-existing contractual relation between the Chan and Yoro on the one hand, and the INC on the other. 11 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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For the damage caused to INC, Chan and Yoro are jointly liable as they are joint tortfeasors. Verily, the responsibility of two or more persons who are liable for a quasidelict is solidary. Chan and Yoro cooperated in committing the tort. They even had provisions in their MOA as to how they would divide the treasure if any is found within or outside Chans property line. Thus, the MOA, instead of exculpating Chan from liability, is the very noose that insures that he be so declared as liable. While it is settled that a party who did not appeal from the decision cannot seek any relief other than what is provided in the judgment appealed from, nevertheless, when the rights and liability of the defendants are so interwoven and dependent as to be inseparable, in which case, the modification of the appealed judgment in favor of appellant operates as a modification to Yoro who did not appeal. In this case, the liabilities of Yoro and Chan being solidary, the above exception applies. *Torts-related but not under the topic assigned: Exemplary or corrective damages are imposed by way of example or correction for the public good. In quasi-delicts, exemplary damages may be granted if the defendant acted with gross negligence. By gross negligence is meant such entire want of care as to raise a presumption that the person in fault is conscious of the probable consequences of carelessness, and is indifferent, or worse, to the danger of injury to person or property of others. Surreptitiously digging under the respondents chapel which may weaken the foundation thereof, thereby endangering the lives and limbs of the people in worship, unquestionably amounts to gross negligence. Not to mention the damage that may be caused to the structure itself. The exemplary damages must correspondingly be increased to P100,000.00. 4. Fabre v. Court of Appeals, G.R. No. 111127, July 26, 1996 See above 5. Cerezo v. Tuazon, G.R. No. 141538, March 23, 2004 Facts: Country Bus Lines passenger bus collided with a tricycle in Pampanga. Trike driver Tuazon filed a complaint as pauper litigant for damages against Mrs. Cerezo, as owner of the bus line, her husband Atty. Juan Cerezo and driver Danilo Foronda. Tuazon alleged that he was in the proper lane when Foranda, without due regard to traffic rules and regulations, there being a Slow Down sign, drove in a negligent manner which caused severe damage to the tricycle and serious physical injuries to plaintiff (unable to walk, became disabled, thumb and middle finger on the left hand cut) Trial court issued summons against Atty. Cerezo and Mrs. Cerezo. Sps. Cerezo failed to file their answer so the trial court issued an order declaring the Cerezos in default. It also ruled in Tuazons favor. It made no pronouncement on Forondas liability because there was no service of summons on him. It was held that Mrs. Cerezo was solely liable for the damages sustained by Tuazon arising from the negligence of Mrs. Cerezos employee, pursuant to Article 2180 of the CC. Cerezos utilized various remedies (relief from judgment, certiorari under 45, annulment of judgment under 47, and certiorari under 65 with CA) to overturn the ruling but were all denied. Hence, the present petition for review on certiorari contending that the CA ignored the allegation that driver Foronda whose negligence is the main issue is an indispensable party whose presence is compulsory but whom the lower court did not summon. Issue: Whether or not Foronda (driver) is an indispensable party. Held/Ratio: NO. Mrs. Cerezos contention that the trial court could not validly render judgment since it failed to acquire jurisdiction over Foronda proceeds from the point of view of criminal law and not of civil law. The basis of the present action of Tuazon is quasi-delict under the Civil Code, not delict under the Revised Penal Code. The same negligent act may produce civil liability arising from a delict under Article 103 of the Revised Penal Code, or may give rise to an action for a quasi-delict under Article 2180 of the Civil Code. An aggrieved party may choose between the two remedies. An action based on a quasi-delict may proceed independently from the criminal action. There is, however, a distinction between civil liability arising from a delict and civil liability arising from a quasi-delict. The choice of remedy, whether to sue for a delict or a quasi-delict, affects the procedural and jurisdictional issues of the action. Tuazon chose to file an action for damages based on a quasi-delict. In his complaint, Tuazon alleged that Mrs. Cerezo, without exercising due care and diligence in the supervision and management of her employees and buses, hired Foronda as her driver. Tuazon became disabled because of Forondas recklessness, gross negligence and imprudence, aggravated by Mrs. Cerezos lack of due care and diligence in the selection and supervision of her employees, particularly Foronda. Article 2180 states in part: Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. Contrary to Mrs. Cerezos assertion, Foronda is not an indispensable party to the case. An indispensable party is one whose interest is affected by the courts action in the litigation, and without whom no final resolution of the case is possible. However, Mrs. Cerezos liability as an employer in an action for a quasidelict is not only solidary, it is 12 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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also primary and direct. Foronda is not an indispensable party to the final resolution of Tuazons action for damages against Mrs. Cerezo. According to Article 2194 of the Civil Code, the responsibility of two or more persons who are liable for a quasi-delict is solidary. Where there is a solidary obligation on the part of debtors, as in this case, each debtor is liable for the entire obligation. Hence, each debtor is liable to pay for the entire obligation in full. There is no merger or renunciation of rights, but only mutual representation. Where the obligation of the parties is solidary, either of the parties is indispensable, and the other is not even a necessary party because complete relief is available from either. Therefore, jurisdiction over Foronda is not even necessary as Tuazon may collect damages from Mrs. Cerezo alone. Moreover, an employers liability based on a quasidelict is primary and direct, while the employers liability based on a delict is merely subsidiary. Although liability under Article 2180 originates from the negligent act of the employee, the aggrieved party may sue the employer directly. When an employee causes damage, the law presumes that the employer has himself committed an act of negligence in not preventing or avoiding the damage. This is the fault that the law condemns. While the employer is civilly liable in a subsidiary capacity for the employees criminal negligence, the employer is also civilly liable directly and separately for his own civil negligence in failing to exercise due diligence in selecting and supervising his employee. To hold the employer liable in a subsidiary capacity under a delict, the aggrieved party must initiate a criminal action where the employees delict and corresponding primary liability are established. If the present action proceeds f rom a delict, then the trial courts jurisdiction over Foronda is necessary. However, the present action is clearly for the quasi-delict of Mrs. Cerezo and not for the delict of Foronda. II. NEGLIGENCE A. Concept Civil Code o Articles 2178, 1172, 1173, and 1733 Memorize: Articles 1172 to 1174

1. United States v. Bonifacio, G.R. No. 10563, March 2, 1916 On October 1913, Eligio Castillo, a deaf-mute, was run down and killed, while attempting to cross the railroad track in the barrio of Santa Rita, Batangas, by an engine on which the Bonifacio was employed as engineer. The deaf-mute stepped out on the track from an adjoining field shortly before the accident, walked along one side of the track for some little distance and was killed as he attempted, for some unknown reason, to cross over to the other side. When the Bonifacio first saw the Castillo, he was walking near the track, in the same direction as that in which the train was running. The train, a heavy freight train, had just rounded a curve, and the man in front was about 175 meters ahead of the engine. The Bonifacio immediately blew his whistle twice, and noticing, a few moments afterwards, that the man in front did not respond to the warning by stepping aside from the track, he tried to slow down the engine, but did not succeed in stopping in time to avoid running down the pedestrian. He did not attempt to stop his engine when he first saw the man walking along the side of the track; but he claims that he did all in his power to slow down a few moments afterwards, that is to say after he had blown his whistle without apparently attracting the attention of the pedestrian, who, about that time, turned and attempted to cross the track. The only evidence as to the rate of speed at which the train was running at the time of the accident was the testimony of the accused himself, who said that his indicator showed that he was travelling at the rate of 35 km/hour, the maximum speed permitted under the railroad regulations. The undisputed evidence discloses that a heavy freight train running at the rate of 35 miles an hour could not be brought to a stop on that decline in much less than one 150 meters. Issue: Whether or not Bonifacio is guilty of homicide committed with simple negligence. Held: ACQUITTED. The mere statement of facts, as disclosed by the undisputed evidence of record, sufficiently and conclusively demonstrates that the death of the deaf-mute was the result of a regrettable accident, which was unavoidable so far as this accused was concerned. It has been suggested that, had the accused applied his brakes when he first saw the man walking near the track, after his engine rounded the curve, he might have stopped the train in time to have avoided the accident, as it is admitted that the distance from the curve to the point where the accident occurred was about 175 meters. But there is no obligation on an engine driver to stop. or even to slow down his engine, when he sees an adult pedestrian standing or walking on or near the track, unless there is something in the appearance or conduct of the person on foot which would cause a prudent man to anticipate the possibility that such person could not, or would not avoid the possibility of danger by stepping aside. Ordinarily, all that may properly be required of an engine driver under such circumstances is that he 13 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

give warning of his approach, by blowing his whistle or ringing his bell until he is assured that the attention of the pedestrian has been attracted to the oncoming train. An engine driver may fairly assume that all persons walking or standing on or near the railroad track, except children of tender years, are aware of the danger to which they are exposed; and that they will take reasonable precautions to avoid accident, by looking and listening for the approach of trains, and stepping out of the way of danger when their attention is directed to an oncoming train. Any other rule would render it impracticable to operate railroads so as to secure the expeditious transportation of passengers and freight, which the public interest demands. There was nothing in the appearance or conduct of the victim which would have warned the accused that the man walking along the side of the track was a deaf-mute. It was only when the pedestrian attempted to cross the track, just in front of the train, that the accused had any reason to believe that his warning signals had not been heard, and by that time it was too late to avoid the accident. The accused was without fault; and the accident must be attributed wholly to the reckless negligence of the deaf-mute, in walking on the track without taking the necessary precautions to avoid danger from a train approaching him from behind. Even if it were true that the train was running at a speed slightly in excess of the limit prescribed by regulations, just before the accident took place, that fact would not justify or require the imposition of the penalty prescribed in article 568 of the Criminal Code, it affirmatively appearing that the slight excess of speed had no possible causal relation to the accident. Under all the circumstances, the accident must have taken place whether the speed had been slightly under rather than slightly over the limit prescribed by regulation, and that it was due wholly to the negligent conduct of the deceased. This does NOT mean that in every case in which one accidentally injures or kills another he is criminally liable therefor, if at the moment he happens to be guilty of a violation of some petty regulation. Injury or death must have resulted from some "imprudence or negligence" on his part. It is true that it only needs to be slight negligence, if accompanied by a violation of the regulations, but the relation of cause and effect must exist between the negligence or imprudence of the accused and the injury inflicted. If it appears that the injury in no wise resulted from the violation of the regulations, or the negligent conduct of the accused, he incurs no criminal liability under the provisions of this article. Conviction thereunder cannot be maintained, unless there was culpable negligence in the violation of a duly prescribed regulation; and unless, further, the latter was the proximate and immediate cause of the injury inflicted 2. Picart v. Smith, 37 Phil. 809 (1918) Facts: Picart was riding his pony over the Carlatan bridge in La Union (75 m x 4.8m). However, he was on the wrong side. Before he had gotten half way across, the Smith approached from the opposite direction in an automobile, going at the rate of about 10-12 MPH. As Smith approached the bridge, he blew his horn when he saw Picart. Observing that Picart was not observing the rules of the road, Smith gave 2 more successive blasts. Perturbed by the novelty of the apparition or rapidity of the approach, Picart moved his horse closer to the railing instead of going to the correct side of the road (which is the left side). Picart did this as he thought he had no more time to reach the left side. Smith also guided his car toward the same side where Picarts horse was. At this point, Smit h and Picart are in a direct collision course. In so doing, Smith assumed that the horseman would move to the other side. However, since the Pony had not exhibited fright and the fact that Picart made no motion to stop, instead of veering away, Smith continued to approach directly towards Picart without diminution of speed. As he got closer, the possibility of the horse moving to the other side also grew slim. As a result, Smith guided his car to the right to avoid hitting the horse. However, as the car passed, the pony became frightened and turned its body. Consequently, the car struck the left hind leg of the horse. As the horse fell, the rider was thrown off. The horse died as a result and Picart suffered some contusions and temporary unconsciousness. It was seen that the space between the horse and the car at the time of the incident was less than 1.5 meters. Issue: Whether or not Smith (driver) is guilty of negligence. Held: YES. While Smith had the right to assume that Picart would pass over the proper side of the bridge, when this eventuality had become an impossibility, it became Smiths duty to either bring his car to an immediate stop or, seeing there were no other people on the bridge, take the other side and pass sufficiently far away from the horseman. Instead, Smith ran straight on until he was almost upon the horse. He did not take into consideration the fact that there was an appreciable risk with regard to the fact that the pony might get excited and/or frightened. The test by which to determine the existence of negligence: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, he is guilty of negligence.

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Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

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. 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. 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. In the present case, having recognized that the course he was pursuing was fraught with risk and would, therefore, have foreseen harm to Picart as a reasonable consequence of that course. Under said circumstances, the imposed on Smith the duty to guard against the threatened harm. While Picart was also not free from fault for being on the wrong side of the road, the negligent acts of the two parties were not contemporaneous, since the negligence of the Smith succeeded the negligence of the Picart by an appreciable interval. Under these circumstances, the law is that the person who has the last fair chance to avoid the impending harm and fails to do so is chargeable with the consequences, without reference to the prior negligence of the other party. 3. Corliss v. Manila Railroad Co., G.R. No. L-21291, March 28, 1969 Facts: In December 1956, Ralph Corliss, a 21 year old air police stationed at Clark Air Base, and a PC soldier was returning to said base. Ralph was driving the jeep. When they crossed the railroad tracks to reach the entrance of the base, it collided with a train operated by respondent. The PC soldier suffered burns and serious physical injuries while Corliss died of his burns at the hospital days later. Preciolita Corliss, wife of deceased, filed a complaint for recovery of damages against respondent for negligence. The lower court, however ruled that based on the evidence presented, Corliss became a victim of his own miscalculation when he took a risk in his eagerness to beat the oncoming train. Hence, an appeal was filed to the Court. Issue: Whether or not Manila Railroad is liable for negligence? Held: NO. The lower court judgment has in its favor the presumption of correctness. It is entitled to great respect. After all, the lower court had the opportunity of weighing carefully what was testified to and apparently did not neglect it. This action is predicated on negligence, the Civil Code making clear that whoever by act or omission causes damage to another, there being negligence, is under obligation to pay for the damage done. Unless it could be satisfactorily shown, therefore, that Manila Railroad was guilty of negligence then it could not be held liable. Without damage or prejudice there can be no liability, and although this element is present no indemnity can be awarded unless arising from some persons fault or negligence. Negligence is want of the care required by the circumstances. It is a relative or comparative, not an absolute, term and its application depends upon the situation of the parties and the degree of care and vigilance which the circumstances reasonably require. 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. Every case must be dependent on its facts. The circumstances indicative of lack of due care must be judged in the light of what could reasonably be expected of the parties. If the objective standard of prudence be met, then negligence is ruled out. During the trial all 3 witnesses, one of which was the train operator, had warned the oncoming traffic that it was approaching by blowing its whistle repeatedly in accordance with regulations. Despite this, one witness observed that, seeing that the train was coming, Corliss slowed down his jeep but this was due to the fact that he put the jeep on first gear in an attempt to give his jeep a boost so it could beat the train. In fact, the train operator testified that the train was only running between 20-25 KPH and, despite applying he breaks, the jeep was still caught in its tracks. Despite the allegation that the crossing bars were not put down and the fact that there was no guard at the gate-house, there still was a duty on the part of Corliss to stop his jeep to avoid a collision. Authorities have many times said that the railroad track is in itself a warning of danger. Those who ignore such warning do so at their own risk and responsibility. It is incumbent upon one approaching a railroad crossing to use all of his faculties of seeing and hearing. He should approach a railroad crossing cautiously and carefully. He should look and listen and do everything that a reasonably prudent man would do before he attempts to cross the track. On the knowledge of Corliss and his familiarity with the setup of the checkpoint, the existence of the tracks; and on the further fact that the locomotive had blown its siren or whistle, which was heard by said witnesses, it is clear that Corliss, Jr. was so sufficiently warned in advance of the oncoming train that it was incumbent upon him to avoid a possible accident. A prudent man under similar circumstances would have simply stopped his vehicle before crossing and allow the train to move on. 4. Cusi v. Philippine National Railways, G.R. No. L-29889, May 31, 1979 15 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

Facts: On the night of October 5, 1963, Victorino Cusi and his wife Pilar attended a birthday party inside a subdivision in Paranaque. After the party, at around 11pm, the Sps Cusi proceeded home in their Vauxhall car with Victorino at the wheel. Upon reaching the railroad tracks, finding that the level crossing bar was raised and seeing that there was no flashing red light, and hearing no whistle from any coming train, Cusi merely slackened his speed and proceeded to cross the tracks. At the same time, a train bound for Lucena traversed the crossing, resulting in a collision between the two. The impact threw the Sps out of their car which was smashed. Mrs Cusi suffered many fractures and underwent a total of four surgical operations . As a result of the fracture on her right arm, there was a shortening of about 1 cm. of that arm. She lost the flexibility of her wrist, elbow and shoulder. She was forced to quit her profession of teaching music and piano. She also bore ugly scars on several parts of her body, and she suffered anxiety of a possible miscarriage being then 5 months pregnant at the time of the accident. Similarly, Victorino suffered a number of injuries, including brain injuries which affected his speech, memory, sense of hearing and neck movement. As a result of his injuries, Victorino was unable to properly attend to his various business undertakings after the accident. Defendant PNR raises the defense that there was contributory negligence on the part of Cusi, and that had he made a full stop before traversing the crossing as required by section 56(a) of Act 3992 (Motor Vehicle Law), he could have seen and heard the approach of the train, and thus, there would have been no collision. Issue: Whether or not PNR is guilty of negligence. Held: YES.(1) The question of negligence is a question of fact: The question of negligence being one of fact, the lower court's finding of negligence on the part of the PNR deserves serious consideration by the Court. Thus, it has been the standing practice of appellate courts to accord lower court's judgments the presumption of correctness. And unless it can be shown that error or errors, substantial in character, be shown in the conclusion arrived at, or that there was abuse in judicial scrutiny, the SC is bound by their judgments. (2) Definition of negligence: Negligence has been defined by as 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. By such a test, it can readily be seen that there is no hard and fast rule whereby such degree of care and vigilance is measured, it is dependent upon the circumstances in which a person finds himself so situated. All that the law requires is that it is always incumbent upon a person to use that care and diligence expected of reasonable men under similar circumstances. The gross negligence of PNR was the proximate cause of the collision. Undisputedly, the warning devices installed at the railroad crossing were manually operated. On the night of the accident, the train for Lucena was on an unscheduled trip after 11:00 P.M. During that precise hour, the warning devices were not operating for no one attended to them. Also, the locomotive driver did not blow his whistle. He simply sped on without taking an extra precaution of blowing his whistle. That the train was running at full speed is attested to by the fact that notwithstanding the application of the emergency brakes, the train did not stop until it reached a distance of around 100 meters . These facts assessed together show the the absence of precautions taken by the PNR to warn the travelling public of the impending danger. Jurisprudence recognizes that if warning devices are installed in railroad crossings, the travelling public has the right to rely on such warning devices to put them on their guard and take the necessary precautions before crossing the tracks. A need, therefore, exists for the railroad company to use reasonable care to keep such devices in good condition and in working order, or to give notice that they are not operating, since if such a signal is misunderstood it is a menace. Thus, it has been held that if a railroad company maintains a signalling device at a crossing to give warning of the approach of a train, the failure of the device to operate is generally held to be evidence of negligence, which may be considered with all the circumstances of the case in determining whether the railroad company was negligent as a matter of fact. As to the defense of Contributory negligence: PNR rests its defense mainly on Section 56(a) of the Motor Vehicle Law. It states that vehicles moving on public highways shall be brought to a full stop before traversing any railroad crossing. The defense presupposes that the failure of Cusi to stop before proceeding to traverse the crossing constitutes contributory negligence, thereby precluding them from recovering indemnity for their injuries and damages. However, the same law states in its proviso that instead of coming to a full stop, it may slow down to not more than 10 kph when it is apparent that no hazard exists. 5. Wright v. Manila Electric R.R. & Light Co. , G.R. No. 7760, October 1, 1914 Facts: The E.M. Wrights Caloocan residence fronts on the street along which defendant's tracks run. To enter his premises from the street, Wright is has to cross defendant's tracks. On the night of 9 Aug. 1909, Wright drove home in a calesa and in crossing the tracks to enter his premises the horse stumbled, leaped forward, and fell, causing the vehicle to 16 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

strike one of the rails with great force such that one wheel broke. This caused Wright to be thrown off the calesa thereby incurring injuries. It was undisputed that at the night in question, the rails were above-ground. Moreover, the ties upon which the rails rested projected out of the ground. All in all, the upper part of the rails was some 5-6 inches above street level. Wright brought an action to recover damages for injuries sustained due to defendants negligence. Defendant admitted it was negligence in maintaining its tracks but it further averred that Wright was likewise negligent for being intoxicated at the time of the accident. This was gathered from Dr. Kneedler, the physician who attended to him hours after the accident. Such state made him unable to properly take care of himself and it was the primary source of the accident. In other words, had he not been intoxicated, he would not have fallen off. The trial court ruled that both were negligent and apportioned the damages that was awarded to Wright. Both appealed. Issue: Accepting the findings that both were negligent, whether Wrights negligence contributed to the accident OR only to Wrights own injuries. Held: DEFENDANTs NEGLIGENCE WAS THE MAIN CAUSE. That there is nothing in the opinion of the lower court which sustains the conclusion that the Wright was negligent with reference to the accident. Mere intoxication is not negligence, nor does the mere fact of intoxication establish a want of ordinary care. It is but a circumstance to be considered with the other evidence tending to prove negligence. It is the general rule that it is immaterial whether a man is drunk or sober if no want of ordinary care or prudence can be imputed to him. If one's conduct is characterized by a proper degree of care and prudence, it is immaterial whether he is drunk or sober. Defendants conclusion that, had he been sober, he wouldnt have been injured is not warranted by the facts as found because it is impossible to say that a sober man would not have fallen from the calesa under the same circumstances. *NOTE: In the trial, there were 2 hearing dates. However, only the evidence from the first reached the Court. Thus, the Court refused to consider the evidence present and decided based on the facts stated in the opinion of the lower court and pleadings filed. 6. People v. De Los Santos, G.R. No. 131588, March 27, 2001 Facts: The last phase of the Special Counter Insurgency Operation Unit training was the endurance run. Since the jogging trainees were occupying the right lane of the highway, 2 rear security guards were assigned to each rear column (there were 3 columns of joggers). Their duty was to jog backwards facing the oncoming vehicles and give hand signals for other vehicles to take the left lane. They saw an Isuzu Elf truck coming at high speed towards them. The vehicle lights were in the high beam. At a distance of 100 meters, the rear security guards started waving their hands for the vehicle to take the other side of the road, but the vehicle just kept its speed, apparently ignoring their signals and coming closer and closer to them. Realizing that the vehicle would hit them, the rear guards told their co- trainees to retract. The guards forthwith jumped in different directions. Some were thrown, and others were overrun by the vehicle. The driver did not reduce his speed even after hitting the first and second columns. Immediately after receiving the report, policemen proceeded to the traffic scene to conduct an ocular inspection. They did not see any brake marks on the highway, which led him to conclude that the brakes of the vehicle had not been applied. Accused Glenns version: At about 10:30 p.m. of 4 October 1995, he was asked by his friend Enting Galindez and the latters fellow band members to provide them with transpo that would bring the ir band instruments, band utilities and band members from CDO to Balingoan. They were supposed to be taken to Camiguin, to participate in the Lanzones Festival. As the Elf was negotiating a left curve going slightly downward, GLENN saw a very bright and glaring light coming from the opposite direction of the highway. GLENN blinked his headlights as a signal for the other driver. GLENN switched his own lights from bright to dim and reduced his speed from 80 to 60 KPH. It was only when the vehicles were at a distance of 10-15 m from each other that the other cars headlights were dimmed. As a result, GLENN found it extremely hard to adjust from high brightness to sudden darkness. This happened while the truck was still cruising at a speed of 60 kph and immediately after passing the oncoming vehicle, that GLENN suddenly heard and felt bumping thuds. At the sound of the first bumping thuds, GLENN put his right foot on the brake pedal. But the impact was so sudden that he was astonished and afraid. He was trembling and could not see what were being bumped. At the succeeding bumping thuds, he was not able to pump the brake, nor did he notice that his foot was pushing the pedal. Due to its momentum, the Elf continued on its track and was able to stop only when it was already very near the next curve. GLENN could not distinguish in the darkness what he had hit, especially since the right headlights of the truck had 17 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

been busted upon the first bumping thuds. In his confusion and fear, he immediately proceeded home. GLENN did not report the incident to the Puerto Police Station because he was not aware of what exactly he had hit. It was only when he reached his house that he noticed that the grill of the truck was broken; the side mirror and round mirror, missing; and the windshield, splintered. 2 hours later, he heard that an accident had occurred, and he realized that it was the PNP group that he had hit. GLENN surrendered that same day to Governor Emano. RTC convicted GLENN of the complex crime of multiple murder, multiple frustrated murder, and multiple attempted murder, with the use of motor vehicle as the qualifying circumstance. (12 dead, 11 seriously injured, 10 minor) Issue: Was there intent to kill or was he guilty of reckless imprudence? Held: NO INTENT TO KILL. The tragic event was more a product of reckless imprudence than of a malicious intent on GLENNs part. Glenn should be held guilty of the complex crime of reckless imprudence resulting in multiple homicide with serious physical injuries and less serious physical injuries. The incident was an accident and not an intentional felony. There is no shred of evidence that GLENN had an axe to grind against the police trainees that would drive him into deliberately hitting them with intent to kill. The existence of a motive on the part of the accused becomes decisive in determining the probability or credibility of his version that the incident was purely accidental. GLENNs offense is in failing to apply the brakes, or to swerve his vehicle to the left or to a safe place the moment he heard and felt the first bumping thuds. Had he done so, many trainees would have been spared. The test for determining whether a person is negligent in doing an act whereby injury or damage results to the person or property of another is this: Could a prudent man, in the position of the person to whom negligence is attributed, foresee harm to the person injured as a reasonable consequence of the course actually pursued? If so, the law imposes a duty on the actor to refrain from that course or to take precautions to guard against its mischievous results, and the failure to do so constitutes negligence. Reasonable foresight of harm, followed by the ignoring of the admonition born of this prevision, is always necessary before negligence can be held to exist. GLENN showed an inexcusable lack of precaution. Article 365 of the Revised Penal Code states that reckless imprudence consists in voluntarily, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration (1) his employment or occupation; (2) his degree of intelligence; (4) his physical condition; and (3) other circumstances regarding persons, time and place. GLENN, being then a young college graduate and an experienced driver, should have known to apply the brakes or swerve to a safe place immediately upon hearing the first bumping thuds to avoid further hitting the other trainees. By his own testimony, it was established that the road was slippery and slightly going downward; and, worse, the place of the incident was foggy and dark. He should have observed due care in accordance with the conduct of a reasonably prudent man, such as by slackening his speed, applying his brakes, or turning to the left side even if it would mean entering the opposite lane (there being no evidence that a vehicle was coming from the opposite direction). Even if he was driving within the speed limits, this did not mean that he was exercising due care under the existing circumstances and conditions at the time. Furthermore, his failure to render assistance to the victim, therefore, constitutes a qualifying circumstance because the presence thereof raises the penalty by one degree. 7. Jarco Marketing Corporation v. Court of Appeals, 321 SCRA 375 (1999) Jarco Marketing owns Syvels Department Store in Makati. Petitioners Kong, Tiope, and Panelo are its branch manger, operations manager, and supervisor, respectively. Respondent Sps. Conrado and Criselda are parents of Zhieneth Aguilar. On May 1983, Criselda and Zhieneth were at the 2F of the store. She was signing her credit card slip when she felt a suddent gust of wind and a loud thud. She looked behind to see her daughter on the floor, pinned by the stores gift wrapping counter. She was rushed the Makati Med where she was operated on. She lost her speech, communicating through a magic slate. She died 14 days later, at the age of 6. Sps. Aguilar demanded reimbursement of all expenses, which was refused. A complaint for damages was filed alleging lack of diligence in the supervision of its employees. Jarco denied liability claiming that Criselda was negligent in allowing her daughter to roam freely in a store filled with glassware and appliances and eventually climbing on the counter that had never collapsed in 15 years. The RTC dismissed the complaint. The CA, however, reversed, finding that the counter was dangerous, with a top wider than its base downward pressure could cause it to fall. Two employees brought up the concern, but this was ignored; the incident could have been avoided if it was repaired. Hence, the present appeal. Issues: Whether the death of Zieneth was accidental or attributable to negligence. Held: It is due to negligence. Accident is an unforeseen event in which no fault or negligence attaches. It is fortuitous, with no human agency, or if there were, it is unusual or unexpected. Negligence is the omission to do something which a reasonable man would do, or the doing of something which a prudent or reasonable man would not do. It is the failure to 18 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

observe, for the protection of the interest of another person, that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury. They are intrinsically contradictory; one cannot exist with the other. Accident occurs when the person is exercising ordinary care. The test in determining negligence is found in Picart 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? The Court found Jarco negligent, giving credence to the testimonies of its former employees. They stated that the counter was shaky and not nailed; it could collapse at any time. This was never done they only nailed it after the accident. The mangers were personally informed, yet did not do anything to ensure the safety of employees and patrons. They failed to discharge the diligence of a good father of a family. Zhieneth herself stated at the ER that I did not come near the counter and the counter just fell on me. 8. Sarmiento v. Cabrido, 401 SCRA 122 (2003) Facts: Tomasa Sarmiento states that, a friend, Dra. Virginia Lao, requested her to find somebody to reset a pair of diamond earrings into two gold rings. Sarmiento sent a certain Tita Payag with the pair of earrings to Dingdings Jewelry Shop, owned and managed by Sps. Luis and Rose Cabrido, which accepted the job order. Sarmiento provided 12 grams of gold to be used in crafting the pair of ring settings. Tita Payag delivered to the jewelry shop one of Laos diamond earrings. Respondent Marilou Sun went on to dismount the diamond from its original setting. Unsuccessful, she asked their goldsmith, Zenon Santos, to do it. Santos removed the diamond by twisting the setting with a pair of pliers, breaking the gem in the process. Sarmiento required the respondents to replace the diamond with the same size and quality. When they refused, the Sarmiento was forced to buy a replacement in the amount of P30,000. Cabrido, manager of Dingdings Jewelry Shop, denied having entered into any transaction with Tita Payag whom she met only after the latter came to the jewelry shop to seek compensation from Santos for the broken piece of jewelry. Sarmiento filed a complaint for damages to which the MTCC of Tagbilaran City granted. It held the Cabridos jointly and severally liable for damages. On appeal, the RTC reversed. The CA affirmed. Hence, the present petition. Essentially, petitioner claims that the dismounting of the diamond from its original setting was part of the obligation assumed by the private respondents under the contract of service. Thus, they should be held liable for damages arising from its breakage. Issue: Whether or not Cabridos are liable for damages. Held: YES. Marilou expressed no reservation regarding the dismounting of the diamonds which, after all, was an integral part of petitioners job order. She should have instructed Payag to have them dismounted first if Marilou had actually intended to spare the jewelry shop of the task but she did not. Instead, Sarmiento was charged P400 for the job order which was readily accepted. Thus, a perfected contract to reset the pair of diamond earrings arose. After the new settings were completed, she asked the petitioner to bring the diamond earrings to be reset. Having initially examined one of them, Marilou went on to dismount the diamond from its original setting. Unsuccessful, she then delegated the task to their goldsmith, Zenon Santos. Having acted the way she did, Marilou cannot now deny the shops obligation to reset the pair of earrings. Obligations arising from contracts have the force of law between the contracting parties. Corollarily, those who in the performance of their obligations are guilty of fraud, negligence or delay and those who in any manner contravene the tenor thereof, are liable for damages. The fault or negligence of the obligo r consists in the omission of that diligence which is required by the nature of the obligation and corresponds with the circumstances of the persons, of the time and of the place. In the case at bar, Santos acted negligently in dismounting the diamond from its original setting. It appears to be the practice of the trade to use a miniature wire saw in dismounting precious gems, such as diamonds, from their original settings. However, Santos employed a pair of pliers in clipping the original setting, thus resulting in breakage of the diamond. The jewelry shop failed to perform its obligation with the ordinary diligence required by the circumstances. Cabridos seek to avoid liability by passing the buck to Santos who claimed to be an independent worker. They also claim, that Marilou simply happened to drop by at Dingdings Jewelry Shop when Payag arrived to place her job order. However, the preponderance of evidence supports the view that Marilou and Zenon Santos were employed at Dingdings Jewelry Shop in order to perform activities which were usually necessary or desirable in its business. Therefore, an obligation to pay actual damages arose in favor of the Sarmiento against the Cabridos who admittedly owned and managed Dingdings Jewelry Shop. 19 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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Atty. Jess Lopez

Moral damages may be awarded in a breach of contract only when there is proof that defendant acted in bad faith, or was guilty of gross negligence amounting to bad faith, or in wanton disregard of his contractual obligation. Santos was a goldsmith for more than 40 years. Given his long experience in the trade, he should have known that using a pair of pliers instead of a miniature wire saw in dismounting a precious stone like a diamond would have entailed an unnecessary risk of breakage. He went on with it anyway. Hence, Cabridos are liable moral damages due to the gross negligence of their employee. Actual damages are also awarded. 9. The Consolidated Bank and Trust Corporation v. Court of Appeals, G.R. No. 138569, September 11, 2003 L.C. Diaz, a professional partnership engaged in practice of accounting, opened a savings account with Solidbank. On August 1991, L.C. Diaz cashier, Macaraya instructed their messenger, Calapre, to deposit money with Solidbank. Calapre went to Solidbank and presented to Teller No. 6 the 2 deposit slips and the passbook. Since the transaction took time and Calapre had to make another deposit for L.C. Diaz with Allied Bank, he left the passbook with Solidbank. When Calapre returned to Solidbank to retrieve the passbook, Teller No. 6 informed hi m that somebody got the passbook. Calapre went back to L.C. Diaz and reported the incident to Macaraya. Macaraya and Calapre went to Solidbank. When Macaraya asked for the passbook, Teller No. 6 told Macaraya that someone got the passbook but she could not remember to whom she gave the passbook. Teller No. 6 handed to Macaraya a deposit slip dated 14 August 1991 (the same day the passbook was lost) for the deposit of a check for P90,000 drawn on Philippine Banking Corporation (PBC). It turns out that this PBC check of L.C. Diaz was a check that it had long closed. PBC subsequently dishonored the check because of insufficient funds and because the signature in the check differed from PBCs specimen signature. (It was later found out that an impostor deposited with Teller No. 6 the P90,000 PBC check, which later bounced. The impostor apparently deposited a large amount of money to deflect suspicion from the subsequent withdrawal of a much bigger amount of money.) Failing to get back the passbook, Macaraya reported the matter to the Personnel Manager of L.C. Diaz. The following day, L.C. Diaz CEO called up Solidbank to stop any transaction using the same passbook until L.C. Diaz could open a new account. L.C. Diaz also learned of the unauthorized withdrawal the day before, 14 August 1991, of P300,000 from its savings account. The withdrawal slip for the P300,000 bore the signatures of the authorized signatories of L.C. Diaz. Signatories, however, denied signing the withdrawal slip. It was later found out that a certain Noel Tamayo received the P300,000. L.C. Diaz charged its messenger, Ilagan and one Verdazola with Estafa. This was eventually dismissed. L.C. Diaz demanded from Solidbank the return of its money. Solidbank refused so L.C. Diaz filed a Complaint for Recovery of a Sum of Money against Solidbank. for the unauthorized withdrawal of the 300K. The RTC held LC Diaz negligent and caused the unauthorized withdrawal. Solidbank acted with care and observed the rules o savings account when it withdrew 300K in favor of the holder of the passbook prior to its receipt of a notice of loss thereof. Upon appeal, CA ruled against bank and held it guilty of simple negligence which was the proximate cause for the injury. CA stated that the teller, who was not presented by Solidbank during trial, should have called up the depositor because the money to be withdrawn was a significant amount. Teller did not even verify the identity of the impostor who made the withdrawal. Thus, the CA found Solidbank liable for its negligence in the selection and supervision of its employees. CA ruled that while L.C. Diaz was also negligent in entrusting its deposits to its messenger and its messenger in leaving the passbook with the teller, Solidbank could not escape liability because of the doctrine of last clear chance. Issue: Whether or not the bank was negligent. Held: YES. The contract between the bank and its depositor is governed by CC on simple loan. The bank is the debtor and the depositor is the creditor. Solidbank is liable for breach of contract due to negligence or culpa contractual. The law imposes on banks high standards in view of the fiduciary nature of banking. This means that the banks obligation to observe high standards of integrity and performance is deemed written into every deposit agreement between a bank and its depositor and that this requires banks to assume a degree of diligence higher than that of a good father of a family. Article 1172 of the CC provides that responsibility arising from negligence in the performance of every kind of obligation is demandable. For breach of the savings deposit agreement due to negligence, or culpa contractual, the bank is liable to its depositor. When the passbook is in the possession of Solidbanks tellers during withdrawals, the law imposes on Solidbank and its tellers an even higher degree of diligence in safeguarding the passbook. For failing to return the passbook to Calapre, Solidbank and Teller No. 6 presumptively failed to observe such high degree of diligence in safeguarding the passbook, and in insuring its return to the party authorized to receive the same. In culpa contractual, once plaintiff proves a breach of contract, there is a presumption that the defendant was at fault or negligent. The burden is on the defendant to prove that he was not at fault or negligent. In culpa aquiliana the plaintiff has the burden of proving that the defendant was negligent. 20 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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In the present case, there is thus a presumption that Solidbank was at fault and its teller was negligent in not returning the passbook to Calapre. The burden was on Solidbank to prove that there was no negligence on its part or its employees. Solidbank failed to discharge its burden. Solidbank did not present to the trial court Teller No. 6, the teller with whom Calapre left the passbook and who was supposed to return the passbook to him. Solidbank is bound by the negligence of its employees under the principle of respondeat superior or command responsibility. The defense of exercising the required diligence in the selection and supervision of employees is NOT a complete defense in culpa contractual, unlike in culpa aquiliana. Proximate cause is 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. After completion of the transaction, Solidbank had the contractual obligation to return the passbook only to Calapre. Solidbanks failure to return the passbook to Calapre made possible the withdrawal of the P300,000 by the impostor who took possession of the passbook. It was the negligent act of Solidbanks Teller No. 6 that gave the impostor presumptive ownership of the passbook. Had the passbook not fallen into the hands of the impostor, the loss of P300,000 would not have happened. The Doctrine of last clear chance is NOT applicable in this case. Doctrine of last clear chance states that where both parties are negligent but the negligent act of one is appreciably later than that of the other, or where it is impossible to determine whose fault or negligence caused the loss, the one who had the last clear opportunity to avoid the loss but failed to do so, is chargeable with the loss. It is apparent that L.C. Diaz was guilty of contributory negligence in allowing a withdrawal slip signed by its authorized signatories to fall into the hands of an impostor (NBI report on authenticity of signatures not presented in evidence). However, this is a case of culpa contractual, where neither the contributory negligence of the plaintiff nor his last clear chance to avoid the loss, would exonerate the defendant from liability. Such contributory negligence or last clear chance by the plaintiff merely serves to reduce the recovery of damages by the plaintiff but does not exculpate the defendant from his breach of contract. The liability of Solidbank should be reduced. L.C. Diaz must shoulder 40% of the actual damages awarded by the CA. Solidbank must pay the other 60% 10. Garcia-Rueda v. Pascasio, G.R. No. 118141, September 5, 1997 Florencio Rueda, husband of herein petitioner Garcia-Rueda underwent surgical operation at the UST hospital for the removal of a stone blocking his ureter. He was attended by Dr. Antonio Jr. (surgeon) and Dr. Balatbat Reyes (anaestheosiologist). Six hours after the surgery, Florencio died of complications due to unknown causes according to the officials of the UST Hospital. Petitioner requested the NBI to conduct an autopsy which it ruled that it was due to lack of care by the attending physician in administering anaesthesia. Because of that, the NBI recommended that the doctors be charged accordingly. Issue: Whether the the anaesthesiologist is liable. Held: There are four elements involved in medical negligence cases: duty, breach, injury and proximate causation. When the victim employed Dr. Antionio and Dr. Reyes, a physician-patient relationship was created. When they accepted the case, the doctors in effect represented that they possessed the required training and skill required and that they will employ such training, care and skill in the treatment of their patients. They have a duty to use at least the same level of care that any other reasonably competent doctor would use to treat a condition under the same circumstances. The breach of these duties constitute actionable malpractice. Consequently, in the event that any injury results to the patient from want of due care or skill during the operation, the surgeons may be held answerable in damages for negligence. Additionally, in malpractice or negligence cases involving the administration of anaesthesia, the necessity of expert testimony and the availability of res ipsa loquitur have been held to be applicable. Essentially it required two-pronged evidence: evidence as to the recognized standards of medical community in the particular case and a showing that the physician negligently departed from this standard in his treatment. Another element that must be established is causation which can be answered in two inquiries: whether the doctors actions in fact caused the harm to the patient and whether these were the proximate cause of the patients injury . In the instant case, there is indeed a causal connection between the death of the victim and the negligent act of the doctor, which if confirmed would warrant the filing of the charges. It was also found out that the surgeons did not conduct the proper interview of the patient and that the proper drugs were not applied to cope with the symptoms that arose 11. Li v. Soliman, G.R. No. 165279, June 7, 2011 Facts: Angelica, Sps Solimans 11 year old daughter, underwent a biopsy of a mass in her knee at St. Lukes. Results revealed that she suffered from osteosarcoma a high-grade and aggressive cancer of the bone usually affecting teens. As a result, Angelicas right leg had to be amputated by Dr. Tamayo to remove the tumor. As adjuvant treatment to 21 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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eliminate the remaining cancer cells thereby minimizing the chance of the cancer spreading to other body parts, chemo was suggested. Dr. Tamayo referred Angelica to Dr. Li, an oncologist. Weeks after recuperating from the amputation, Angelica was admitted to St. Lukes on 18 Aug. 1993 for the chemo. The first cycle of chemo drugs were administered to her intravenously. Side effects showed discoloration of different parts of her body. She also suffered LBM, bleeding, and shedding of skin throughout the process. Her blood platelet count also decreased severely and thus she had to undergo several transfusions. Sps. Soliman regularly consulted with Li regarding the side effects. In turn, Li explained to them that it was the result of the treatment. Unfortunately, on 1 Sept. 1993 or 11 days after the first chemo drugs were administered, Angelica died. Solimans brought the cadaver to PNP crime lab for post-mortem examination because St. Lukes refused to release a death certificate without full payment of their hospital bill. In PNPs Medico-Legal report, it said the cause of death was Hypovolemic shock secondary to multiple organ hemorrhages and Disseminated Intravascular Coagulation. On the other hand, when St. Lukes finally issued the death certificate, the immediate cause of her death was the osteosarcoma. In Feb. 1994, complaint for damages was filed by Solimans against Li and oth er doctors involved in Angelicas treatment. They were charged with negligence and disregard of the safety, health, and welfare of Angelica by their careless administration of the chemo drugs which caused all the complications leading to her death. Solimans claim that Li assured them of 95% chance of healing and told them that the side effects were merely slight vomiting, hair loss, and weakness. Denying negligence, Li asserted that she fully explained how the chemo will affect not only the cancer cells but also the patients normal body parts including the lowering of white blood cells and platelets. Since the medical records were not produced in court, testimonial evidence was relied upon. Solimans presented MedicoLegal Dr. Vergara and Dr. Balmaceda who was employed at DOH. Dr. Vergara admitted she was not an pathologist but her statements supporting the Solimans were based on the opinion of an oncologist whom she interviewed. The trial court dismissed the complaint upon finding that Li was not negligent since she observed the best known procedures and employed her highest skill and knowledge in the administration of chemo drugs. When the case was appealed, CA affirmed the finding that there was no negligence in the administration of the chemo drugs. However, the CA found petitioner liable for her failure to inform the respondents on all possible side effects of chemotherapy before securing their consent to the said treatment. Hence, Li appealed. Issue: Whether Dr. Rubi Li can be held liable for failure to fully disclose serious side effects to the parents of the child patient who died while undergoing chemotherapy, despite the absence of finding that petitioner was negligent in administering the said treatment. Held: NO. A claim under medical negligence/malpractice is that which a victim has available to him to redress a wrong committed by a medical professional who has caused bodily harm. To successfully pursue such a claim, a patient must prove that a health care provider, in most cases a physician, either failed to do something which a reasonably prudent health care provider would have done, or that he or she did something that a reasonably prudent provider would not have done; and that that failure or action caused injury to the patient. Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patients consent, commits an assault for which he is liable in damages. The Doctrine of Informed Consent mandates that a physician has a duty to disclose what a reasonably prudent physician in the medical community in the exercise of reasonable care would disclose to his patient as to whatever grave risks of injury might be incurred from a proposed course of treatment, so that a patient, exercising ordinary care for his own welfare, and faced with a choice of undergoing the proposed treatment, or alternative treatment, or none at all, may intelligently exercise his judgment by reasonably balancing the probable risks against the probable benefits. The physician is not expected to give the patient a short medical education, the disclosure rule only requires of him a reasonable explanation, which means generally informing the patient in nontechnical terms as to what is at stake; the therapy alternatives open to him, the goals expectably to be achieved, and the risks that may ensue from particular treatment or no treatment. For liability of the physician for failure to inform patient, there must be causal relationship between physicians failure to inform and the injury to patient and such connection arises only if it is established that, had revelation been made, consent to treatment would not have been given. The essential elements a plaintiff must prove in a malpractice action based upon the doctrine of informed consent are as follows: (1) the physician had a duty to disclose material risks; (2) he failed to disclose or inadequately disclosed those risks; (3) as a direct and proximate result of the failure to disclose, the patient consented to treatment she otherwise would not have consented to; and (4) plaintiff was injured by the proposed treatment. Examining the evidence on record, the Court holds that there was adequate disclosure of material risks inherent in the chemotherapy procedure performed with the consent of Angelicas parents. When Li informed the Solimans beforehand 22 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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of the side effects of chemotherapy which includes lowered counts of white and red blood cells, decrease in blood platelets, possible kidney or heart damage and skin darkening, there is reasonable expectation on the part of the doctor that the respondents understood very well that the severity of these side effects will not be the same for all patients undergoing the procedure. In other words, by the nature of the disease itself, each patients reaction to the chemical agents even with pretreatment laboratory tests cannot be precisely determined by the physician. Li can reasonably expect the respondents to have considered the variables in the recommended treatment for their daughter afflicted with a life-threatening illness. It is difficult to give credence to respondents claim that petitioner told them of 95% chance of recovery for their daughter, as it was unlikely for doctors who were dealing with grave conditions such as cancer to have falsely assured patients of chemos success rate. Besides, informed consent laws in other countries generally require only a reasonable explanation of potential harms, so specific disclosures such as statistical data, may not be legally necessary. In a medical malpractice action based on lack of informed consent, the plaintiff must prove both the duty and the breach of that duty through expert testimony. Here, the testimony of Dr. Balmaceda who is not an oncologist but a Medical Specialist of the DOHs Operational and Management Services charged with receiving complaints against hospitals, does not qualify as expert testimony to establish the standard of care in obtaining consent for chemotherapy treatment. The same goes for the testimony of Dr. Vergara, a PNP Medico-Legal Officer. In the absence of expert testimony in this regard, the Court feels hesitant in defining the scope of mandatory disclosure in cases of malpractice based on lack of informed consent, much less set a standard of disclosure that, even in foreign jurisdictions, has been noted to be an evolving one. 12. Adarne v. Aldaba, A.C. No. 801, June 27, 1978 Facts: A forcible entry case was filed against Cesario Adarne (herein complainant). In the said case, Adarne had changed his counsel 3 times through the course of the case. At the hearing of the case, Adarne, noting that his attorney had not yet arrived, chanced upon Atty. Aldaba (the respondent in this case), who was his third cousin, and requested that he enter a special appearance in the case as his attorney is nowhere to be found. Atty Aldaba And again at a later hearing, respondent Aldaba was again prevailed upon by complainant Adarne to appear in his behalf. The respondent entered a "special appeara\nce" for the complainant and thereafter argued that the interest of justice would best be served if the Adearne were allowed to file an action for quieting of. However, on June 17, 1965, the court declared the Adarne in default for his failure to appeal at the hearing set for that day. Because of this, he filed the present complaint against Atty. Damian V. Aldaba for gross negligence and misconduct, for failure to give his entire devotion to the interest of his client, warm zeal in the maintenance and defense of his rights, and for not taking steps to protect the interests of his client in the face of an adverse decision. Issue: Whether or not Atty. Aldaba is guilty of gross negligence? Held: NO. The judgment by default rendered against the Adarne cannot be attributed to the Atty. Aldaba. The blame lies with the complainant for having engaged the services of several lawyers to handle his case without formally withdrawing the authority he had given to them to appear in his behalf as to place the responsibility upon the respondent. To add to the confusion, the complainant had also requested the clerk of court of the Court of First Instance of Leyte that Adarne be furnished with summons and subpoena accorded to him. He also filed a motion by himself, thus implying that he was handling his case personally. It appears that there have been 3 changes made of the attorneys. However, no formalities whatever were observed in those changes such that the respondent entered a "special appearance" for the complainant in order that he could ask for the dismissal of the case for the failure of the adverse party to prosecute. The rule followed on matters of substitution of attorneys as laid down by this Court is that no substitution of attorneys will be allowed unless there be filed: (1) a written application for such substitution; (2) the written consent of the client; (3) the written consent of the attorney substituted; and (4) in case such written consent cannot be secured, there must be filed with the application proof of service of notice of such motion upon the attorney to be substituted, in the manner prescribed by the rules. Besides, the Aldaba honestly believed that he had appeared for the complainant only for a special purpose and that the complainant had agreed to contact his attorney of record to handle his case after the hearing of October 23, 1964, so that he did nothing more about it. It was neither gross negligence nor omission to have entertained such belief. An attorney is not bound to exercise extraordinary diligence, but only a reasonable degree of care and skill, having reference to the character of the business he undertakes to do. Prone to err like any other human being, he is not answerable for every error or mistake, and will be protected as long as he acts honestly and in good faith to the best of his skill and knowledge. It is well settled that in disbarment proceedings, the burden of proof rests upon the complainant and for the Court to exercise its disciplinary powers, the case against the respondent attorney must be established by convincing proof. In the instant case, there is no sufficient proof to warrant the disbarment of the respondent attorney. Neither is there culpable malpractice to justify his suspension. 23 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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13. Isaac v. A.L. Ammen Transportation Co., Inc. , G.R. No. L-9671, August 23, 1957 Facts: Cesar Isaac, boarded Bus No. 31, a common carrier, operated by respondents as a passenger paying the fare from Albay to Camarines Sur. Upon entering, he seated himself on the left side of the bus and rested his arm on the window with his elbow protruding outside the window. Before reaching its destination, the bus collided with a pickup coming from the opposite direction. As a result, his left arm was completely severed. He was the only person in the bus to obtain any injury. Isaac underwent the necessary treatment which amounted to P623.40 and was shouldered by defendant. Thereafer, Isaac brought an action for damages against defendant alleging that the collision resulting to his injury was mainly due to the gross incompetence and recklessness of the bus driver. He also claimed that defendant breach the contract of carriage due to its non-compliance with its obligation to transport him safely to his destination. In its defense, defendant denied any liability and imputed it on the negligence of the pickup driver as well as Isaacs contributory negligence. It also alleged that the accident was due to a fortuitous event (could not be foreseen or, though foreseen, was inevitable). The court found no negligence on the part of defendant and that it did everything it could to avoid the accident. Issue: is: Has the common carrier observed extraordinary diligence or the utmost diligence of every cautious person, having due regard for all circumstances, in avoiding the collision which resulted in the injury caused to Isaac? Held: YES. The law concerning the liability of a common carrier has now suffered a substantial modification in view of the innovations introduced by the new Civil Code. Said innovations are found in Arts. 1733, 1755, and 1756 thereof. These provisions basically state that common carriers are bound to observe extraordinary diligence due to the nature of their business and public policy. In case of death or injury to passengers, it is presumed to be at fault or negligence, UNLESS they prove that they observed extraordinary diligence. A restatement of the principles governing common carrier liability are as follows: (1) the liability of a carrier is contractual and arises upon breach of its obligation. There is breach if it fails to exert extraordinary diligence according to all the circumstances of each case; (2) a carrier is obliged to carry its passenger with the utmost diligence of a very cautious person, having due regard for all the circumstances; (3) a carrier is presumed to be at fault or to have acted negligently in case of death of, or injury to, passengers, it being its duty to prove that it exercised extraordinary diligence; and (4) the carrier is not an insurer against all risks of travel. Evidence shows that the bus, immediately before the collision was running at moderate speed as it just stopped at a school zone. On the other hand, the pickup was at full speed and running outside the proper lane. Upon seeing this, the bus driver swerved the bus to the right as far as it could without endangering the life of his passengers. Unfortunately, the pickup still hit the rear left side of the bus. Where a common carrier is faced with a sudden emergency, the fact that he is obliged to act quickly and without a chance for deliberation must be taken into account. He is not held to the same degree of care that he would otherwise be required in the absence of such emergency but must only exercise only such care as any ordinary prudent person would under like circumstances. In this case, the driver of the bus has done what a prudent man could have done to avoid the collision and, thus, is relieved from liability under our law. 14. Calvo v. UCPB General Insurance Co., Inc., G.R. No. 148496, March 19, 2002 Virgines Calvo is the owner of Transorient Container Terminal Services, Inc. (TCTSI), a customs broker. TCTSI entered into a contract with San Miguel Corporation (SMC) for the transfer of 114 reels of semi-chemical fluting paper and 124 reels of kraft liner board from the Port Area in Manila to SMCs warehouse. The cargo was insured by UCPB General Insurance Co., Inc. It arrived Manila via M/V Hayakawa Maru and, after 24 hours, were unloaded from the vessel to the custody of the arrastre operator, Manila Port Services, Inc. TCTSI, pursuant to the contract with SMC, withdrew the cargo from the arrastre operator and delivered it to SMCs warehouse in Ermita. The goods were inspected by Marine Cargo Surveyors, who found that 15 reels of the semichemical fluting paper were wet/stained/torn and 3 reels of kraft liner board were likewise torn amounting to 93K. SMC collected payment from its insurer (UCBP). In turn, UCPB, as subrogee of SMC, brought suit against Calvo. Calvo denies liability for the damage to the cargo. TCTSI claims that the damage took place while the goods were in the custody of either the carrying vessel M/V Hayakawa Maru or the arrastre operator, to whom the goods were unloaded and who allegedly kept them in open air for nine days from July 14 to July 23, 1998 notwithstanding the fact that some of the containers were deformed, cracked, or otherwise damaged, as noted in the Marine Survey Report. RTC held that evidence such as the Warehouse Entry Slip, the Damage Report coupled with the Marine Cargo Survey Report confirms the fact of the damaged condition of the subject cargoes. Also, the court attributed it against the brokers improper handling. CA affirms. Issue: Whether TCTSI is liable.

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Held: YES. Pursuant to Art.1735, TCTSI is presumed negligent. Under said article, Common carriers are persons, corporations, firms or associations engaged in the business of carrying or transporting passengers or goods or both, by land, water, or air for compensation, offering their services to the public. TCTSI contends that it is not a common carrier but a private carrier because, as a customs broker and warehouseman, she does not indiscriminately hold her services out to the public but only offers the same to select parties with whom she may contract in the conduct of her business. Art. 1732 makes no distinction between one whose principal business activity is the carrying of persons or goods or both, and one who does such carrying only as an ancillary activity. Article 1732 also carefully avoids making any distinction between a person or enterprise offering transportation service on a regular or scheduled basis and one offering such service on an occasional, episodic or unscheduled basis. Neither does Article 1732 distinguish between a carrier offering its services to the general public, i.e., the general community or population, and one who offers services or solicits business only from a narrow segment of the general population. There is greater reason for holding TCTSI to be a common carrier because the transportation of goods is an integral part of her business . Art. 1733 of the Civil Code provides: Common carriers, from the nature of their business and for reasons of public policy, are bound to observe extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them, according to all the circumstances of each case. Extraordinary diligence in the vigilance over the goods tendered for shipment requires the common carrier to know and to follow the required precaution for avoiding damage to , or destruction of the goods entrusted to it for sale, carriage and delivery. It requires common carriers to render service with the greatest skill and foresight and to use all reasonable means to ascertain the nature and characteristic of goods tendered for shipment, and to exercise due care in the handling and stowage, including such methods as their nature requires. TCTSI claims that after withdrawing the container vans from the arrastre operator, their driver, Ricardo Nazarro, immediately delivered the cargo to SMCs warehouse in Ermita, Manila, which is a mere 30 drive from the Port Area where the cargo came from. Thus, the damage to the cargo could not have taken place while these were in her custody. However, from the Survey Report, it is clear that the shipment was discharged from the vessel to the arrastre in good order and condition as evidenced by clean Equipment Interchange Reports (EIRs). (slight dents, paint scratches on roof panels) The cargoes were withdrawn by the TCTSI from the arrastre still in good order and condition as the same were received by the former without exception, that is, without any report of damage or loss. Whenever the thing is lost (or damaged) in the possession of the debtor (or obligor), it shall be presumed that the loss (or damage) was due to his fault, unless there is proof to the contrary. No proof was proffered to rebut this legal presumption. To prove the exercise of extraordinary diligence, petitioner must do more than merely show the possibility that some other party could be responsible for the damage. It must prove that it used all reasonable means to ascertain the nature and characteristic of goods tendered for [transport] and that [it] exercise[d] due care in the handling [thereof]. TCTSI did not present any evidence on what precaution was performed to prevent the said incident. The rule is that if the improper packing or, in this case, the defect/s in the container, is/are known to the carrier or his employees or apparent upon ordinary observation, but he nevertheless accepts the same without protest or exception notwithstanding such condition, he is not relieved of liability for damage resulting therefrom. TCTSI accepted the cargo without exception despite the apparent defects in some of the container vans. For failure of TCTSI to prove that they exercised extraordinary diligence in the carriage of goods or that they are exempt from liability, the presumption of negligence as provided under Art. 1735 holds. 15. Ridjo Tape & Chemical Corp., v. Court of Appeals, G.R. No. 126074, February 24, 1998 Facts:Two cases are involved here. In Civil Case Q-92-13845 (Nov. 1990) Ridjo applied for and were granted electric service by MERALCO. 10 months later, they received a demand letter for P415,317.66 worth of unregistered consumption; MERALCO justified its demand on the ground that the electric meter of the petitioners was defective. Petitioners refused to pay, and filed for a preliminary injunction to prevent disconnection with the RTC of QC. This was granted. In Civil Case 13879 (July 1992) another demand letter was received for P89,701.58 on the same grounds. Ridjo filed another case to enjoin MERALCO from suspending its services; the two cases were thereafter consolidated, and the preliminary injunction granted. The injunction was later made permanent. On appeal, the CA reversed this, and ordered petitioners to pay the amounts. Issues: Whether or not Ridjo is liable to pay the unregistered electrical service in the absence of evidence of tampering Held: NO. The Service Contract provides that, In the event of stoppage or the failure by any meter to register the full amount of energy consumed, the Customer shall be billed for such period on an estimated consumption based upon his use of energy in a similar period of like use. 25 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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Atty. Jess Lopez

Ridjo disclaim liability by stating that stoppage or failures refer only to tampering on the part of the customer, and not mechanical failure or defects. However, it is unbelievable that they were not aware that stoppages or failures can result from inherent defects or flaws. The stipulation was intended to cover these situations, as there is no intent on its part to donate electricity. Corollarily, MERALCO has the duty to make a reasonable and proper inspection of the apparatus to ensure that they do not malfunction, and due diligence to discover and repair defects therein. . Failure constitutes negligence. The 2 unpaid periods covered 3 month (Nov-Feb) and 9 month (July-April)duration, respectively, and records show that MERALCO examined the meters regularly. By virtue of the length of time that the conspicuous defect existed, MERALCO is deemed to have constructive notice of the same. MERALCOs failure to discover the defect, considering this, amounts to inexcusable negligence . Its failure to make the necessary repairs and replacement was the proximate cause of the dispute. Ridjos liability is thus limited by reason of MERALCOs negligence; it is only to pa y the estimated consumption on a three-month average prior to the dispute. B. Negligence as proximate causes

1. Quezon City Government v. Dacara, G.R. No. 150304, June 15, 2005 Facts: At about 1:00 A.M., Fulgencio Dacara, Jr., son of Fulgencio P. Dacara, Sr. and owner of 87 Toyota Corolla 4-door Sedan. While driving the said vehicle, JR rammed into a pile of earth/street diggings found at Matahimik St., Quezon City, which was then being repaired by the QC government. As a result, Dacarra Jr. allegedly sustained bodily injuries and the vehicle suffered extensive damage for it turned turtle when it hit the pile of earth. Dacara sued the city for damages on the ground of negligence. In its defense, QC insists that they placed all the necessary precautionary signs to alert the public of a roadside construction. They argue that the driver was over-speeding, and that his own negligence was therefore the sole cause of the incident. Issue: Whether or not the QC government was negligent. Held: YES. That the negligence of Dacara was the proximate cause of the accident was aptly discussed in the lower courts finding, which we quote: nary a lighting device or a reflectorized barricade or sign perhaps which could have served as an adequate warning to motorist especially during the thick of the night where darkness is pervasive. Contrary to the testimony of the witnesses for the defense that there were signs, gasera which was buried so that its light could not be blown off by the wind and barricade, none was ever presented to stress the point that sufficient and adequate precautionary signs were placed at Matahimik Street. If indeed signs were placed thereat, how then could it be explained that according to the report even of the policeman which for clarity is quoted again, none was found at the scene of the accident. Petitioners belatedly point out that Dacara. was driving at the speed of 60 KPH when he met the accident. This speed was allegedly well above the maximum limit of 30 kph allowed on city streets with light traffic, when not designated through streets, as provided under the Land Transportation and Traffic Code. Thus, petitioners assert that Dacara, having violated a traffic regulation, should be presumed negligent pursuant to Article 2185 of the Civil Code. These matters were, however, not raised by petitioners at any time during the trial. It is evident from the records that they brought up for the first time the violation in their MR of the CA Decision. It is too late in the day for them to raise this new issue. 2. Taylor v. Manila Electric Railroad and Light Co. , 16 Phil. 8 (1910) Facts: The power plant of Manila Electric Railroad (MER) is situated at the eastern end of a small island in Pasig River known as Isla del Provisor. Said power plant may be accessed by boat or by crossing a footbridge. On one Sunday afternoon, David Taylor, 15 year old son of an MER engineer, who was more mature than the average boy of his age, having considerable aptitude and training in mechanics, with 12 year old Manuel Claparols crossed said footbridge to visit an employee of MER. Finding that said employee was not available, the boys, impelled by youthful curiosity, spent time wandering about MERs premises. While walking across the premises, they found some 20-30 brass fulminating caps (detonators for dynamite). They picked up all they could find and hung them on a stick and carried them home. They met 9 year old girl named Jessie Adrian along the way. They made a series of experiments with said caps (thrust the ends of the wires into electric sockets, tried to break it with a stone, etc). They then opened one of them with a knife and saw yellowish substance inside. As David held the cap, Manuel applied a lighted match to the contents. An explosion followed causing injuries to all 3 of them. Jessie, who started to run away as they were about to put a match on it received a cut in the neck. Manuels hand was burned. David was struck in the face with several metal particles one of which injured his right eye which had to be removed. Davids father sued MER for damages resulting from negligence. 26 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013 Issue: Whether MER can be held liable?

Atty. Jess Lopez

Held: NO. When the immediate cause of an accident resulting in an injury is the plaintiff's own act, which contributed to the principal occurrence as one of its determining factors, he cannot recover damages for the injury. Plaintiff, in an action for damages due to negligence, must establish by competent evidence the ff: (1) damage incurred; (2) negligence by act or omission of which defendant or some person for whose acts it must respond, was guilty; and (3) the connection of cause and effect between the negligence and the damage. It is clear that the accident could not have happened had not the fulminating caps been left exposed at the point where they were found, or if their owner had exercised due care in keeping them in an appropriate place; but it is equally clear that plaintiff would not have been injured had he not, for his own pleasure and convenience, entered upon MERs premises, and strolled around thereon without the express permission of the MER, and had he not picked up and carried away the property of the defendant which he found on its premises, and had he not thereafter deliberately cut open one of the caps and applied a match to its contents. The caps when found appeared to the boys who picked them up to have been lying there for a considerable time, and from the place where they were found would seem to have been discarded as defective or worthless and fit only to be thrown upon the rubbish heap. No measures seem to have been adopted by the defendant company to prohibit or prevent visitors from entering and walking about its premises unattended even if they were aware that children in their play crossed the footbridge to the island. Fulminating caps or detonators for the discharge by electricity of blasting charges by dynamite are not articles in common use by the average citizen, and under all the circumstances, and in the absence of all evidence to the contrary, we think that the discovery of 20-30 of these caps at the place where they were found by the plaintiff on MERs premises fairly justifies the inference that MER was either the owner of the caps in question or had these caps under its possession and control. Children, wherever they go, must be expected to act upon childlike instincts and impulses; and others who are chargeable with a duty of care and caution toward them must calculate upon this, and take precautions accordingly. If they leave exposed to the observation of children anything which would be tempting to them, and which they in their immature judgment might naturally suppose they were at liberty to handle or play with, they should expect that liberty to be taken. The owners of premises, therefore, whereon things attractive to children are exposed, or upon which the public are expressly or impliedly permitted to enter or upon which the owner knows or ought to know children are likely to roam about for pastime and in play, must calculate upon this, and take precautions accordingly. But while we hold that the entry of the plaintiff upon MERs property without the latters express invitation or permission would not have relieved defendant from responsibility for injuries incurred there by plaintiff, without other fault on his part, if such injury were attributable to the negligence of MER, we are of opinion that under all the circumstances of this case the negligence of the MER in leaving the caps exposed on its premises was not the proximate cause of the injury received by the plaintiff, which therefore was not attributable to the negligence of the defendant, and, on the other hand, we are satisfied that plaintiff's action in cutting open the detonating cap and putting a match to its contents was the proximate cause of the explosion and of the resultant injuries inflicted upon the plaintiff, and that the MER, therefore, is not civilly responsible for the injuries thus incurred. In the case at bar, plaintiff at the time of the accident was a well-grown youth of 15, more mature both mentally and physically than the average boy of his age; he had been to sea as a cabin boy; was able to earn P2.50 a day as a mechanical draftsman 30 days after the injury was incurred; and the record discloses throughout that he was exceptionally well qualified to take care of himself. The evidence of record leaves no room for doubt that, despite his denials on the witness stand, he well knew the explosive character of the cap with which he was amusing himself. The series of experiments made by him in his attempt to produce an explosion, as described by the little girl who was present, admit of no other explanation. His attempt to discharge the cap by the use of electricity, followed by his efforts to explode it with a stone or a hammer, and the final success of his endeavors brought about by the application of a match to the contents of the cap, show clearly that he knew what he was about . Nor can there be any reasonable doubt that he had reason to anticipate that the explosion might be dangerous, in view of the fact that the little girl, 9 years of age, who was with him at the time when he put the match to the contents of the cap, became frightened and ran away. Difficulty seems to be apprehended in deciding which acts of the injured party shall be considered immediate causes of the accident. The test is simple. Distinction must be made between the accident and the injury, between the event itself, without which there could have been no accident, and those acts of the victim not entering into it, independent of it, but contributing to his own proper hurt. Where he contributes to the principal occurrence, as one of its determining factors, he cannot recover. Where, in conjunction with the occurrence, he contributes only to his own injury, he may recover the amount that the defendant responsible for the event should pay for such injury, less a sum deemed a suitable equivalent for his own imprudence. 27 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

3. Bataclan v. Medina, 102 Phil. 181 (1957) Facts: A bus of the Medina Transportation operated by Mariano Medina left the town of Amadeo Cavite on its way to Pasay City and driven by Saylon. Among the passengers were Bataclan et al. At 2:00AM while it was running in Imus Cavite, one of the front tires burst and the vehicle began to zig-zag until it fell into a canal or ditch in the side of the road and turned turtle. Some passengers were able to leave the bus but the driver and 3 passengers (Bataclan included) were unable to get out. Calls and shouts were made to the houses in the neighborhood. After some time, some men came to help, carrying a lighted torch. However, almost immediately after approaching the bus, a fierce fire started. Apparently gas leaked out and permeated the ground, and the lighted torch brought by one of the men who answered the call for help set it on fire. Bataclan died as a result. As a result, his widow filed the present suit to recover damages. The trial court held defendant carrier liable for breach of contract of transportation for hire. They also held that there was negligence on the part of the defendant through his agent driver Saylon. Apparently the bus was speeding at the time of the tire blowout. Issue: While there is no question that Medina is liable, the issue is to what degree is his liability since the trial court found that the proximate cause of Bataclans death is not the overturning of the bus but the fire that burned it. Held: PROXIMATE CAUSE WAS THE OVERTURNING OF THE BUS. In the present case under the circumstances given, the court held that the overturning of the bus as the proximate cause of the death. This is for the reason that when the vehicle turned not only on its side but completely on its back, the leaking of the gasoline from the tank was not unnatural or unexpected. The coming of the men with a lighted torch was in response to the call for help, made not only by the passengers, but most probably, by the driver and the conductor themselves, and that because it was dark the rescuers had to carry a light with them, and coming as they did from a rural area it is natural that they would only be carrying a torch. It would also be natural that the said rescuers should innocently approach the vehicle to extend the aid and effect the rescue requested from them. In other words, the coming of the men with a torch was to be expected and was a natural sequence of the overturning of the bus , the trapping of some of its passengers and the call for outside help. The driver and the conductor are also guilty of negligence. According to the witnesses, they were merely on the road walking back and forth. They, or at least, the driver should and must have known that in the position in which the overturned bus was, gasoline could and must have leaked from the gasoline tank and soaked the area in and around the bus, this aside from the fact that gasoline when spilled, specially over a large area, can be smelt and directed even from a distance, and yet neither the driver nor the conductor would appear to have cautioned or taken steps to warn the rescuers not to bring the lighted torch too near the bus. To add further, one of the passengers who, because of the injuries suffered by her, was hospitalized, and while in the hospital, she was visited by the defendant Mariano Medina, and in the course of his visit, she overheard him speaking to one of his bus inspectors, telling said inspector to have the tires of the bus changed immediately because they were already old, but did not do so. If this be true, it goes to prove that the driver had not been diligent and had not taken the necessary precautions to insure the safety of his passengers. Had he changed the tires, especially those in front, with new ones, as he had been instructed to do, probably, despite his speeding, as we have already stated, the blow out would not have occurred. 4. Fernando v. Court of Appeals, 208 SCRA 714 (1992) Facts: The septic tank to the toilet in the Agdao Public Market, Davao has not been cleaned for 19 years. So, the Market Master initiated a request for the re-emptying of said septic tank in the Davao City Treasurers Office. An invitation to bid was issued to 5 people. However, it was Feliciano Bascon who won. Before Bascon could start re-emptying the septic tank, another bidder Aurelio Bertulano and 4 others were found dead inside the said septic tank was now almost empty. Upon investigation, it was found that the victims entered said septic tank without clearance from the City government nor with the knowledge and consent of the Market Master. An autopsy was performed and it was found that the cause of death was asphyxia due to diminution of oxygen in the body caused by intake of toxic gas. The heirs of the deceased brought an action against Davao City for damage on the ground of negligence. They claim that the citys negligence in maintaining the septic tank was the proximate cause of their heirs death. Trial court dismissed. CA reversed and awarded damages. Upon MR, the CA reversed itself and dismissed the complaint. Issue: Whether Davao citys negligence in maintaining the septic tank was the proxima te cause of the injury suffered. Held: NO. To be entitled to damages for an injury resulting from the negligence of another, a claimant must establish the relation between the omission and the damage. He must prove under Art. 2179 that the defendants negligence was the immediate and proximate cause of his injury. 28 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

Proximate cause has been defined as 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. Proof of such relation of cause and effect is not an arduous one if the claimant did not in any way contribute to the negligence of the defendant. However, where the resulting injury was the product of the negligence of both parties, there exists a difficulty to discern which acts shall be considered the proximate cause of the accident. While it may be true that Davao has been remiss in its duty to re-empty the septic tank annually, such negligence was not a continuing one. Upon learning from the report of the market master about the need to clean the septic tank of the public toilet in Agdao Public Market, the city immediately responded by issuing invitations to bid for such service. Thereafter, it awarded the bid to the lowest bidder. Also, despite the citys failure to re-empty the septic tank since 1956, people in the market have been using the public toilet for their personal necessities but have remained unscathed (said tank was covered by 3 airtight lids, no report of an gas poisoning). It was also found that warning signs regarding the existence of noxious gases in addition to the Men & Women signs in the toilets were needed. Thus, an accident of this sort would only happen if someone removes one of the lids. In this case, the accident occurred because the victims on their own conduct and without authority from the city opened the septic tank. An ordinarily prudent person should have been aware of the attendant risks particularly since it was one of the bidders, one used to this kind of work, who fell victim to the toxic gas. As such, their failure to take precautionary measures for their safety was the proximate cause of the accident. When a person holds himself out as being competent to do things requiring professional skill, he will be held liable for negligence if he fails to exhibit the care and skill of one ordinarily skilled in the particular work which he attempts to do. 5. Urbano v. Intermediate Appellate Court, 157 SCRA 1 (1988) Facts: On October 1980, Filomeno Urbano was on his way to his rice field. He found the place where he stored palay flooded with water coming from the irrigation canal. Urbano went to the elevated portion to see what happened and there he saw Marcelino Javier and Emilio Erfe cutting grass. Javier admitted that he was the one who opened the canal A quarrel ensued and Urbano hit Javier on the right palm with his bolo causing an incised wound and again on the leg. When Urbano tried to hack and inflict further injury, his daughter embraced and prevented him from hacking Javier. On Oct 27, Urbano and Javier had an amicable settlement. Urbano paid P700 for medical expenses of Javier. On Nov. 1980, Javier was rushed to the hospital where he had lockjaw and convulsions. The doctor found the condition to be caused by tetanus toxin which infected the healing wound in his palm. He died the following day. Urbano was charged with homicide and was found guilty both by the trial court and the CA. Under these circumstances, the lower courts ruled that Javier's death was the natural and logical consequence of Urbano's unlawful act. Hence, he was declared responsible for Javier's death. Later, however, Urbano filed a motion for new trial based on the affidavit of the Brgy Captain who stated that he saw the deceased catching fish in the shallow irrigation canals on Nov. 5. The motion was denied. Hence, this petition. The Urbano reiterates his position that the proximate cause of the death of Marcelo Javier was due to his own negligence, that Dr. Mario Meneses found no tetanus in the injury, and that Javier got infected with tetanus when after 2 weeks he returned to his farm and tended his tobacco plants with his bare hands exposing the wound to harmful elements like tetanus germs. Issue: Whether or not there was an efficient intervening cause from the time Javier was wounded until his death which would exculpate Urbano from any liability for Javier's death. Held: YES. ACQUITTED. The case involves the application of Article 4 RPC which provides that "Criminal liability shall be incurred: (1) By any person committing a felony (delito) although the wrongful act done be different from that which he intended ..." Pursuant to this provision "an accused is criminally responsible for acts committed by him in violation of law and for all the natural and logical consequences resulting therefrom." The evidence on record does not clearly show that the wound inflicted by Urbano was infected with tetanus at the time of the infliction of the wound. The evidence merely confirms that the wound, which was already healing at the time Javier suffered the symptoms of the fatal ailment, somehow got infected with tetanus. However, as to when the wound was infected is not clear from the record. Proximate cause is 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 29 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

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." The incubation period of tetanus or the time between injury and the appearance of unmistakable symptoms, ranges from 2 to 56 days. However, over 80% of patients become symptomatic within 14 days. A short incubation period indicates severe disease, and when symptoms occur within 2 or 3 days of injury the mortality rate approaches 100%. Reflex spasms usually occur within 24 to 72 hours of the first symptom, an interval referred to as the onset time. Mild tetanus is characterized by an incubation period of at least 14 days and an onset time of more than 6 days . As such, medically speaking, the reaction to tetanus found inside a man's body depends on the incubation period of the disease. Skimming through the facts, the Court found that based on the nature of the tetanus vis--vis the facts of the case, Urbanos hacking was not probably the proximate cause of the death. Here, Javier suffered a 2-inch incised wound on his right palm when he parried the bolo which Urbano used in hacking him. This incident took place on October 23, 1980. After 22 days, he suffered the symptoms of tetanus, like lockjaw and muscle spasms. The following day, November 15, 1980, he died. If, therefore, the wound of Javier inflicted by the Urbano was already infected by tetanus germs at the time, it is more medically probable that Javier should have been infected with only a mild cause of tetanus because the symptoms of tetanus appeared on the 22nd day after the hacking incident or more than 14 days after the infliction of the wound. Therefore, the onset time should have been more than 6 days. Javier, however, died on the second day from the onset time. The more credible conclusion is that at the time Javier's wound was inflicted by the Urbano, the severe form of tetanus that killed him was not yet present. Consequently, Javier's wound could have been infected with tetanus after the hacking incident. Considering the circumstance surrounding Javier's death, his wound could have been infected by tetanus 2 or 3 or a few but not 20 to 22 days before he died. The rule is that the death of the victim must be the direct, natural, and logical consequence of the wounds inflicted upon him by the accused. And since we are dealing with a criminal conviction, the proof that the accused caused the victim's death must convince a rational mind beyond reasonable doubt. The medical findings, however, lead us to a distinct possibility that the infection of the wound by tetanus was an efficient intervening cause later or between the time Javier was wounded to the time of his death. The infection was, therefore, distinct and foreign to the crime. Doubts are present. There is a likelihood that the wound was but the remote cause and its subsequent infection, for failure to take necessary precautions, with tetanus may have been the proximate cause of Javier's death with which the petitioner had nothing to do. 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 of the injury, even though such injury would not have happened but for such condition or occasion. If no danger existed 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 instances which result in injury because of the prior defective condition, such subsequent act or condition is the proximate cause. We must stress, however, that our discussion of proximate cause and remote cause is limited to the criminal aspects of this rather unusual case. It does not necessarily follow that the Urbano is also free of civil liability. The wellsettled doctrine is that a person, while not criminally liable, may still be civilly liable. While the guilt of the accused in a criminal prosecution must be established beyond reasonable doubt, only a preponderance of evidence is required in a civil action for damages. The judgment of acquittal extinguishes the civil liability of the accused only when it includes a declaration that the facts from which the civil liability might arise did not exist. 6. Bernal v. House and Tacloban Electric & Ice Plant, Ltd. , 54 Phil. 327 (1930) Facts: The procession of Holy Friday was held in Tacloban, Leyte. Fortunata Enverso with her daughter Purificacion Bernal came from another municipality to attend the religious celebration. After the procession was over, the woman and her daughter, accompanied by 2 other persons by the names of Fausto and Elias, passed along a public street. The little girl was allowed to get a short distance in advance of her mother and her friends. When in front of the offices of the Tacloban Electric & Ice Plant, Ltd., an automobile appeared from the opposite direction which so frightened the child that she turned to run, with the result that she fell into the street gutter. At that time there was hot water in this gutter or ditch coming from the Electric & Ice Plant of J. V. House. She was found with her face downward in the hot water. Child died that same night. Dr. Benitez certified that the cause of death was Burns, 3rd Degree, Whole Body, and contributory causes were Congestion of the Brain and visceras of the chest & abdomen. As such, Tacloban Electric was sued for damages on the ground of negligence. 30 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

Defense was that the hot water was permitted to flow down the side of the street with the knowledge and consent of the authorities; that the cause of death was other than the hot water; and that in the death the plaintiffs contributed by their own fault and negligence. Trial judge ordered the dismissal of the action because of the contributory negligence of the plaintiffs. Issue: Whether Tacloban Electric is liable for the death of Purificacion. Held: YES. The death of the child was the result of fault and negligence in permitting hot water to flow through the public streets, there to endanger the lives of passers-by who were unfortunate enough to fall into it. Mother and her child had a perfect right to be on the principal street. There was nothing abnormal in allowing the child to run along a few paces in advance of the mother. No one could foresee the coincidence of an automobile appearing and of a frightened child running and falling into a ditch filled with hot water . The contributory negligence of the child and her mother, if any, does not operate as a bar to recovery, but in its strictest sense could only result in reduction of the damages. The plaintiffs are Tomas Bernal and Fortunata Enverso. The latter was the mother of Purificacion Bernal and the former was the natural father, who had never legally recognized his child. The daughter lived with the mother, and presumably was supported by her. Thus, recovery should be permitted the mother but not the father. As to the defendants, they are J. V. House and the Tacloban Electric. J. V. House was granted a franchise by Act and only transferred this franchise formally to the Tacloban Electric & Ice Plant, Ltd. nearly a year after the death of the child Purificacion Bernal. Under these facts, J. V. House is solely responsible. Counsel for appellees point out that there is no satisfactory proof to establish the pecuniary loss. While such is true, in cases of this character the law presumes a loss because of the impossibility of exact computation. There is not enough money in the entire world to compensate a mother for the death of her child. 7. Gabeto v. Araneta, 42 Phil. 252 (1921) Facts: In Iloilo City, Basilio llano and Proceso Gayetano took a carromata to go to a cockpit. When the driver of the carromata had turned his horse and started in the direction indicated, Agaton Araneta stepped out into the street, and laying his hands on the reins, stopped the horse, at the same time protesting to the driver that he himself had called this carromata first. The driver (Pagnaya) replied to the effect that he had not heard or seen the call of Araneta, and that he had taken up the 2 passengers then in the carromata as the first who had offered employment. At or about the same time Pagnaya pulled on the reins of the bridle to free the horse from the control of Agaton Araneta, in order that the vehicle might pass on. Owing, however, to the looseness of the bridle on the horse's head or to the rottenness of the material of which it was made, the bit came out of the horse's mouth; and it became necessary for the driver to get out, which he did, in order to fix the bridle. The horse was then pulled over to near the curb, by one or the other it makes no difference which and Pagnaya tried to fix the bridle. While he was thus engaged, the horse, being free from the control of the bit, became disturbed and moved forward, in doing which he pulled one of the wheels of the carromata up on the sidewalk and pushed Julio Pagnaya over. After going a few yards further the side of the carromata struck a police telephone box which was fixed to a post on the sidewalk, upon which the box came down with a crash and frightened the horse to such an extent that he set out at full speed up the street. Basilio llano, had alighted while the carromata was as yet alongside the sidewalk; but the other, Proceso Gayetano, had unfortunately retained his seat, and after the runaway horse had proceeded up the street to a point in front of the Mission Hospital, the said Gayetano jumped or fell from the rig, and in so doing received injuries from which he soon died. Gayetanos widow (Gabeto) sued Araneta for damages on the ground of negligence. Issue: Whether Araneta is liable for Gayetanos death. Held: NO. The evidence for the plaintiff on this point consists chiefly of the testimony of Julio Pagnaya and of Basilio llano. They both say that while yet in the middle of the street, the Araneta jerked the bridle, which caused the bit to come out of the horse's mouth, and Julio says that at that juncture the throatlatch of the bridle was broken. Be that as it may, the mere fact that the Araneta interfered with the carromata by stopping the horse in the manner stated would not make him liable for the death of Gayetano because it is admitted by Pagnaya that he afterwards got out of the carromata and went to the horse's head to fix the bridle. After Pagnaya alighted, the horse was conducted to the curb and that an appreciable interval of time elapsed same witnesses say several minutes before the horse started on his career up the street. The stopping of the rig by Araneta in the middle of the street was too remote from the accident that presently ensued to be considered the legal or proximate cause thereof. 31 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

By getting out and taking his post at the head of the horse, the driver was the person primarily responsible for the control of the animal, and Araneta cannot be charged with liability for the accident resulting from the action of the horse thereafter. According to the witnesses for Araneta, it was Pagnaya who jerked the rein, thereby causing the bit to come out of the horse's mouth; and they say that Pagnaya, after alighting, led the horse over to the curb, and proceeded to fix the bridle; and that in so doing the bridle was slipped entirely off, when the horse, feeling himself free from control, started to go away as previously stated. 8. McKee v. Intermediate Appellate Court, 211 SCRA 517 (1992) Facts: Between 9 and 10 a.m., a head-on collision took place on Pulong Pulo Bridge between an International cargo truck, Loadstar, owned by Tayag and driven by Galang, and a Ford Escort driven by Jose Koh. 3 people were killed (Jose Koh, Kim Koh McKee, Loida Bondoc), with injuries to 3 others (George Koh McKee, Christopher Koh McKee, Araceli Koh McKee), all passengers of the Ford Escort. When the Escort (Koh) was 10 meters from the bridge, 2 boys suddenly darted into the cars lane. Koh swerved to the left, and entered the trucks lane. He turned on his headlights, applied brakes, and attempted to return to his lane, but it was to o late. Galang admitted that he was driving at 48 kph. Two civil cases were filed in consequence against the employers of Galang. The first prayed for damages for Jose Kohs death; the second, for Kim, Araceli, and George. Further, Galang was charged with Reckless Imprudence resulting to multiple homicide, physical injuries, and damage to property . In the civil cases, respondents alleged that Jose Koh was at fault for being on the wrong lane, while Galang was in the right, traveling at moderate speed and obeying all traffic rules and regulations. In the criminal case, Galang was held guilty, while the 2 civil cases were dismissed. All the said cases were appealed. The criminal case was affirmed, (still guilty) whereas the civil cases were reversed. (employers civilly liable) The criminal case was affirmed by the Supreme Court. The decision in the civil cases was anchored on the finding that it was Galangs inattentiveness which caused the accident; that the law presumes negligence on the part of the employers in the selection and supervision of Galang; that they never asserted the defense of the exercise of the diligence of a good father of a family. Araceli McKee testified that the truck did not slow down even when their headlights were switched on. Also, Tanhueco, an impartial eyewitness, who was one of the first to be at the scene, said that the truck stopped only after the collision. Galang testified that he stopped when the car was just about 10 meters away. A police investigator found that there were no skid marks behind the truck. No credence was given to the testimony of Soliman, the trucks passenger, nor to Dayrit, who supposedly lived across the street. The former would be predisposed to be associated with Galang, while the latter did not assist the injured persons. He tried to call the police but his phone line was allegedly dead, which conditions degraded their credibility. The IAC held that the inattentiveness or negligence of Galang was the proximate cause of the mishap. On reconsideration, however, this was reversed. Hence, this petition. Issue: Whether or not the owners of the cargo truck are liable. Held: YES. In reversing its decision, the IAC held that Jose Koh was presumed to be negligent in invading the lane of the truck. On the basis of this presumed negligence, it was concluded that the same was the proximate cause of the collision. This is unwarranted, since this happened only because two boys darted across the road. Jose Koh's entry into the lane of the truck was necessary in order to avoid what was, in his mind at that time, a greater peril death or injury to the 2 boys. Such act can hardly be classified as negligent. In Picart vs. Smith, decided more than 70 years ago but still a sound rule, We held: The test by which to determin e 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. Considering the sudden intrusion of the 2 boys into the lane of the car, We find that Jose Koh adopted the best means possible in the given situation to avoid hitting them. Applying the above test, therefore, it is clear that he was not guilty of negligence. In any case, assuming arguendo that Jose Koh is negligent, it cannot be said that his negligence was the proximate cause of the collision. Proximate cause has been defined as that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and wit hout which the result would not have occurred. And more comprehensively, the proximate legal cause is that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as an ordinary prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person mi ght probably result therefrom. 32 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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Applying the above definition, although it may be said that the act of Jose Koh, if at all negligent, was the initial act in the chain of events, it cannot be said that the same caused the eventual injuries and deaths because of the occurrence of a sufficient intervening event, the negligent act of the truck driver, which was the actual cause of the tragedy. The entry of the car into the lane of the truck would not have resulted in the collision had the latter heeded the EMERGENCY SIGNALS given by the former to slow down and give the car an opportunity to go back into its proper lane. Instead of slowing down and swerving to the far right of the road, which was the proper precautionary measure under the given circumstances, the truck driver continued at full speed towards the car. The truck driver's negligence becomes more apparent in view of the fact that the road is 7.50 meters wide while the car measures 1.598 meters and the truck, 2.286 meters, in width. This would mean that both car and truck could pass side by side with a clearance of 3.661 meters to spare. Furthermore, the bridge has a level sidewalk which could have partially accommodated the truck. Any reasonable man finding himself in the given situation would have tried to avoid the car instead of meeting it head-on. The truck driver's negligence is apparent in the records. He himself said that his truck was running at 48 kph along the bridge while the maximum speed allowed by law on a bridge is only 30 kph. Under Article 2185 of the Civil Code, a person driving a vehicle is presumed negligent if at the time of the mishap, he was violating any traffic regulation. Again, witnesses testified that the truck was moving at around 50-60 kph and only stopped after the collision. Clearly, therefore, it was the truck driver's subsequent negligence in failing to take the proper measures and degree of care necessary to avoid the collision which was the proximate cause of the resulting accident. Even if Jose Koh was indeed negligent, the doctrine of last clear chance finds application here. Last clear chance is a doctrine in the law of torts which states that the contributory negligence of the party injured will not defeat the claim for damages if it is shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the negligence of the injured party. In such cases, the person who had the last clear chance to avoid the mishap is considered in law solely responsible for the consequences thereof. Applying the foregoing doctrine, it is not difficult to rule, as We now rule, that it was the truck driver's negligence in failing to exert ordinary care to avoid the collision which was, in law, the proximate cause of the collision. As employers of the truck driver, the private respondents are, under Article 2180 of the Civil Code, directly and primarily liable for the resulting damages. The presumption that they are negligent flows from the negligence of their employee. That presumption, however, is only juris tantum, not juris et de jure. Their only possible defense is that they exercised all the diligence of a good father of a family to prevent the damage. The diligence of a good father referred to means the diligence in the selection and supervision of employees. The answers of the private respondents in Civil Cases Nos. 4477 and 4478 did not interpose this defense. Neither did they attempt to prove it. 9. Phoenix Construction, Inc., v. Intermediate Appellate Court, G.R. No. 65295, March 10, 1987 (WTF) Facts: At about 1:30 a.m., private respondent Leonardo Dionisio was on his way home from a cocktails-and-dinner meeting with his boss where Dionisio had taken a shot or two of liquor. Dionisio was driving his Volkswagen car and proceeding down General Lacuna Street, when his car headlights suddenly failed. He switched his headlights on bright and thereupon he saw a Ford dump truck looming some 2.5 meters away from his car. The dump truck, owned and registered in the name of Phoenix Construction, was parked on the right hand side of General Lacuna Street (i.e., on the right hand side of a person facing in the same direction toward which Dionisio's car was proceeding), facing the oncoming traffic. The dump truck was parked askew in such a manner as to stick out onto the street, partly blocking the way of oncoming traffic. There were neither lights nor reflector devices set anywhere near the dump truck. The dump truck had earlier that evening been driven home by Carbonel, its regular driver, with the permission of his employer Phoenix, in view of work scheduled to be carried out early the following morning. Dionisio claimed that he tried to avoid a collision by swerving his car to the left but it was too late and his car smashed into the dump truck. As a result of the collision, Dionisio suffered some physical injuries including some permanent facial scars, a nervous breakdown and loss of 2 gold bridge dentures. Dionisio commenced an action for damages in the CFI Pampanga basically claiming that the legal and proximate cause of his injuries was the negligent manner in which Carbonel had parked the dump truck. Phoenix and Carbonel countered that the proximate cause of Dionisio's injuries was his own recklessness in driving fast at the time of the accident, while under the influence of liquor, without his headlights on and without a curfew pass. Phoenix also sought to establish that it had exercised due care in the selection and supervision of the dump truck driver. Issue: Whether the proximate cause was trucks parking position. Held: YES. DIONISIOS WAS ONLY CONTRIBUTORY. Before resolving such, there are four factual issues that need to be looked into: (a) whether or not private respondent Dionisio had a curfew pass valid and effective for that eventful 33 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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night; (b) whether Dionisio was driving fast or speeding just before the collision with the dump truck; (c) whether Dionisio had purposely turned off his car's headlights before contact with the dump truck or whether those headlights accidentally malfunctioned moments before the collision; and (d) whether Dionisio was intoxicated at the time of the accident. First: No curfew pass was found on the person of Dionisio immediately after the accident nor was any found in his car according to the patrol man who took the unconscious Dionisio to Makati Med, and to the nurse who took off Dionisio's clothes and examined them along with the contents of pockets together with the patrolman. Dionisio was not able to produce any curfew pass during the trial. Instead, he offered the explanation that his family may have misplaced his curfew pass. He also offered a certification issued by one Major Libarnes who was said to have authority to issue curfew passes for Pampanga and Metro Manila. This certification was to the effect that Dionisio had a valid curfew pass. This certification did not, however, specify any pass serial number or date or period of effectivity of the supposed curfew pass. Second: Patrolman Cuyno testified that people who had gathered at the scene of the accident told him that Dionisio's car was "moving fast" and did not have its headlights on. Dionisio, on the other hand, claimed that he was travelling at a moderate speed at 30 KPH and had just crossed the intersection of General Santos and General Lacuna Streets and had started to accelerate when his headlights failed just before the collision took place. An automobile speeding down a street and suddenly smashing into a stationary object in the dead of night is a sufficiently startling event as to evoke spontaneous, rather than reflective, reactions from observers who happened to be around at that time. The testimony of Cuyno was therefore admissible. Third: Dionisio purposely shut off his headlights even before he reached the intersection so as not to be detected by the police in the police precinct which he (being a resident in the area) knew was not far away from the intersection. Fourth: There is the testimony of Patrolman Cuyno to the effect that Dionisio smelled of liquor at the time he was taken from his smashed car and brought to the Makati Medical Center in an unconscious condition. This testimony has to be taken in conjunction with the admission of Dionisio that he had taken "a shot or two" of liquor before dinner with his boss that night. We do not believe that this evidence is sufficient to show that Dionisio was so heavily under the influence of liquor as to constitute his driving a motor vehicle per se an act of reckless imprudence. In summary: Dionisio was negligent the night of the accident. He was hurrying home that night and driving faster than he should have been. Worse, he extinguished his headlights at or near the intersection of General Lacuna and General Santos Streets and thus did not see the dump truck that was parked askew and sticking out onto the road lane. HOWEVER the legal and proximate cause of the accident and of Dionisio's injuries was the wrongful or negligent manner in which the dump truck was parked in other words, the negligence of Carbonel. The collision of Dionisio's car with the dump truck was a natural and foreseeable consequence of the truck driver's negligence. The truck driver's negligence far from being a "passive and static condition" was rather an indispensable and efficient cause. The collision between the dump truck and the Dionisios car would in all probability not have occurred had the dump truck not been parked askew without any warning lights or reflector devices . The improper parking of the dump truck created an unreasonable risk of injury for anyone driving down General Lacuna Street and for having so created this risk, the truck driver must be held responsible. Dionisio's negligence, although later in point of time than the truck driver's negligence and therefore closer to the accident, was not an efficient intervening or independent cause. Dionisio's negligence was not of an independent and overpowering nature as to cut, as it were, the chain of causation in fact between the improper parking of the dump truck and the accident, nor to sever the juris vinculum of liability. Foreseeable Intervening Causes. If the intervening cause is one which in ordinary human experience is reasonably to be anticipated, or one which the defendant has reason to anticipate under the particular circumstances, the defendant may be negligent, among other reasons, because of failure to guard against it; or the defendant may be negligent only for that reason. We hold that Dionisio's negligence was only contributory, that the immediate and proximate cause of t he injury remained the truck driver's lack of due care and that consequently Dionisio may recover damages though such damages are subject to mitigation by the courts. Last Clear Chance Doctrine: The theory here of petitioners is that while the truck driver was negligent, Dionisio had the "last clear chance" of avoiding the accident and hence his injuries, and that Dionisio having failed to take that last clear chance must bear his own injuries alone.

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The historical function of that doctrine in the common law was to mitigate the harshness of another common law doctrine or rule that of contributory negligence. The common law rule of contributory negligence prevented any recovery at all by a plaintiff who was also negligent, even if the plaintiffs negligence was relatively minor as compared with the wrongful act or omission of the defendant. The common law notion of last clear chance permitted courts to grant recovery to a plaintiff who had also been negligent provided that the defendant had the last clear chance to avoid the casualty and failed to do so. It is difficult to see what role, if any, the common law last clear chance doctrine has to play in a jurisdiction where the common law concept of contributory negligence as an absolute bar to recovery by the plaintiff, has itself been rejected, as it has been in Article 2179 of the CC. Is there perhaps a general concept of "last clear chance" that may be extracted from its common law matrix and utilized as a general rule in negligence cases in a civil law jurisdiction like ours? We do not believe so. Under Article 2179, the task of a court, in technical terms, is to determine whose negligence the plaintiff s or the defendant's was the legal or proximate cause of the injury. That task is not simply or even primarily an exercise in chronology or physics, as the petitioners seem to imply by the use of terms like "last" or "intervening" or "immediate." The relative location in the continuum of time of the plaintiff s and the defendant's negligent acts or omissions, is only one of the relevant factors that may be taken into account. Of more fundamental importance is the nature of the negligent act or omission of each party and the character and gravity of the risks created by such act or omission for the rest of the community. Carbonel's proven negligence creates a presumption of negligence on the part of his employer Phoenix in supervising its employees properly and adequately. The circumstance that Phoenix had allowed its truck driver to bring the dump truck to his home whenever there was work to be done early the following morning, when coupled with the failure to show any effort on the part of Phoenix to supervise the manner in which the dump truck is parked when away from company premises, is an affirmative showing of culpa in vigilando on the part of Phoenix. 10. Austria v. Court of Appeals, G.R. No. 133323, March 9, 2000 Facts: At around 7:00 P.M., the Austria was driving his Ford Fiera with 10 passengers. One of the vehicles tires suddenly hit a stone lying in the road, while thus cruising, which caused the Austria to lose control and collide with the rear of an improperly parked cargo truck trailer driven by accused Rolando M. Flores. As a result of the collision, 5 passengers suffered varying degrees of injuries. The trial court, finding accused Alberto Austria guilty beyond reasonable doubt of the crime of Reckless Imprudence Resulting in Serious Physical Injuries. There was no pronouncement as to the civil liability of the accused to private complainant Armin Manalansan considering that the latter filed a separate civil action against accused Alberto Austria. Issue: Whether Austria should be civilly liable Held: YES. Austria asserts that the other drivers negligence in parking his vehicle caused the collision and that said truck driver (Flores) negligently parked his trailer truck with the rear end protruding onto road, without any warning device. This being so, he should not be held responsible for Flores negligence. However, Austria admitted that he saw the trailer at a distance of about 6 meters but at the same time stated that the distance of the focus of the vehicles headlight in dim position was 20 meters. These inconsistent statements, taken together with his claim on cross-examination that he saw the trailer only when he bumped it, only show that he was driving much faster than 30KPH. Assuming that he was driving his vehicle at that speed of 30 kph, Austria would have not lost control of the vehicle after it hit the stone before the collision. Under these circumstances, the Austria did not exercise the necessary precaution required of him and is therefore considered negligent. While we note similarities of the factual milieu of Phoenix to that of the present case, we are unable to agree with Austria that the truck driver should be held solely liable while the petitioner should be exempted from liability. In Phoenix, we ruled that the driver of the improperly parked vehicle was liable and the driver of the colliding car contributorily liable. We agree with the respondent court in its observation on the petitioners culpability: That he had no opportunity to avoid the collision is of his own making and [this] should not relieve him of liability. The negligence of Austria as driver of the Ford Fiera is the immediate and proximate cause of the collision. 11. Umali v. Bacani, G.R. No. L-40570, January 30, 1976 Facts: A storm with a strong rain hit the Municipality of Alcala Pangasinan, during which several banana plants near the transmission line of Alcala Electric Plant were blown down and fell on the electric wire. As a result, the live wire was cut, one end of which was dangling on the electric post and the other on the ground under the fallen banana plants.

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The barrio captain, Bueno saw the wire and warned people not to go near the wire in order to avoid injury. He also saw Baldomero, a laborer of the Alcala Electric Plant and notified him of the broken line. Baldomero told Bueno that he could not do it but he will look for the lineman to fix it. However, after the two left the place, a small boy named Saynes who lived across the road and who was only 3 years and 8 months old, wandered in the place, got in contact with the broken line wire, got electrocuted and died. It was only after the electrocution that the wire got fixed. The father of the child filed a complaint. Issue: Whether Umali, as owner and manager of Alcala Electric Plant, is liable for negligence. Held: YES. A series of negligence on the part of the Alcala Electric Plants employ ees were determinative of their responsibility for the damage caused. First, it was apparent that there were tall banana plants that could have posed a serious threat to the lines constructed by the plant. They did not undertake the necessary precautions to have them removed. Second, realizing the danger that the storm could have brought on the lines, the employees of the plant did not cut off the power pending inspection of the lines to see if they were cut or damaged. Third, Baldomero, realizing the danger that the broken line posed, did not take the necessary precautions to prevent anyone from entering the area. Instead he left the premises because what was foremost in his mind was the repair of the line. The court cannot also ascribe to Umalis that it was the parents negligence of allowing their child to wander around that constituted the proximate cause of the victims death. However the court finds that the real proximate cause was the fallen live wire which posed a threat to life and property on that morning due to the series of negligence adverted to above committed by defendants' employees and which could have killed any other person who might by accident get into contact with it. Stated otherwise, even if the child was allowed to leave the house unattended due to the parents' negligence, he would not have died that morning where it not for the cut live wire he accidentally touched . Art. 2179 of the Civil Code provides that if the negligence of the plaintiff (parents of the victim in this case) was only contributory, the immediate and proximate cause of the injury being the defendants' lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded. This law may be availed of by the petitioner but does not exempt him from liability. Petitioners liability for injury caused by his employees is defined in Article 2180. 12. Lucas v. Tuao, G.R. No. 178763, April 21, 2009 See above Doctrine: Tuanos position, in sum, is that his glaucoma is the direct result of Dr. Tuanos negligence in his improper administration of the drug Maxitrol. Clearly, the present controversy is a classic illustration of a medical negligence case against a physician based on the latters professional negligence. In this type of suit, the patient or his heirs, in order to prevail, is required to prove by preponderance of evidence that the physician failed to exercise that degree of skill, care, and learning possessed by other persons in the same profession; and that as a proximate result of such failure, the patient or his heirs suffered damages. Just as with the elements of duty and breach of the same, in order to establish the proximate cause [of the injury] by a preponderance of the evidence in a medical malpractice action, the patient must similarly use expert testimony, because the question of whether the alleged professional negligence caused the patients injury is generally one for specialized expert knowledge beyond the ken of the average layperson; using the specialized knowledge and training of his field, the experts role is to present to the court a realistic assessment of the likelihood that the physicians alleged negligence caused the patients injury. The deference of courts to the expert opinion of qualified physicians or surgeons stems from the formers realization that the latter possess unusual technical skills which laymen in most instances are incapable of intelligently evaluating; hence, the indispensability of expert testimonies. 13. Calalas v. Court of Appeals, G.R. No. 122039, May 31, 2000 Facts: At 10AM of August 23, 1989, private respondent Eliza Jujeurche G. Sunga, then a college freshman majoring in Physical Education at the Siliman University, took a passenger jeepney owned and operated by Vicente Calalas. As the jeepney was filled to capacity of about 24 passengers, Sunga was given by the conductor an "extension seat," a wooden stool at the back of the door at the rear end of the vehicle. On the way to Poblacion Sibulan, Negros Occidental, the jeepney stopped to let a passenger off. As she was seated at the rear of the vehicle, Sunga gave way to the outgoing passenger. Just as she was doing so, an Isuzu truck driven by Iglecerio Verena and owned by Francisco Salva bumped the left rear portion of the jeepney. As a result, Sunga was injured (fracture, confinement, had to wear a cast for 3 months). On October 1989, Sunga filed a complaint for damages against Calalas, alleging violation of the contract of carriage by the former in failing to exercise the diligence required of him as a common carrier. Calalas, on the other hand, filed a third-party complaint against Francisco Salva, the owner of the Isuzu truck. Meanwhile, Calalas filed another civil case against Salva and Verana for quasi delict. In this case, the court held Salva and Verana jointly liable to Calalas. The lower court rendered judgment against Salva as third-party defendant and absolved 36 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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Calalas of liability, holding that it was the driver of the Isuzu truck who was responsible for the accident. It took cognizance of Civil Case No. 3490 in absolving Calalas from liability. On appeal to the Court of Appeals, the CA reversed. Petitioner contends that the ruling in Civil Case No. 3490 that the negligence of Verena was the proximate cause of the accident negates his liability and that to rule otherwise would be to make the common carrier an insurer of the safety of its passengers. He contends that the bumping of the jeepney by the Isuzu truck was a caso fortuito. Petitioner further assails the award of moral damages to Sunga on the ground that it is not supported by evidence. Issue: Whether Calalas is liable to Sunga for breach of contract of carriage despite the ruling in the separate civil case or is the separate civil case (2176) binding on the present case (breach of contract of carriage) Held: CALALAS IS LIABLE. The argument that Sunga is bound by the ruling in Civil Case No. 3490 finding the driver and the owner of the truck liable for quasi-delict ignores the fact that she was never a party to that case and, therefore, the principle of res judicata does not apply. Nor are the issues in Civil Case No. 3490 and in the present case the same. The issue in Civil Case No. 3490 was whether Salva and his driver Verena were liable for quasi-delict for the damage caused to Calalas jeepney. On the other hand, the issue in this case is whether Calalas is liable on his contract of carriage. The first, quasi-delict, also known as culpa aquiliana or culpa extra contractual, has as its source the negligence of the tortfeasor. The second, breach of contract or culpa contractual, is premised upon the negligence in the performance of a contractual obligation. Consequently, in quasi-delict, the negligence or fault should be clearly established because it is the basis of the action, whereas in breach of contract, the action can be prosecuted merely by proving the existence of the contract and the fact that the obligor failed to transport his passenger safely to his destination. In case of death or injuries to passengers, Art. 1756 CC provides that common carriers are presumed to have been at fault or to have acted negligently unless they prove that they observed extraordinary diligence as defined in Arts. 1733 and 1755 of the Code. This provision necessarily shifts to the common carrier the burden of proof. There is, thus, no basis for the contention that the ruling in Civil Case No. 3490, finding Salva and his driver Verena liable for the damage to petitioners jeepney, should be binding on Sunga. It is immaterial that the proximate cause of the collision between the jeepney and the truck was the negligence of the truck driver . The doctrine of proximate cause is applicable only in actions for quasi-delict, not in actions involving breach of contract. The doctrine is a device for imputing liability to a person where there is no relation between him and another party. In such a case, the obligation is created by law itself. But, where there is a pre-existing contractual relation between the parties, it is the parties themselves who create the obligation, and the function of the law is merely to regulate the relation thus created. Insofar as contracts of carriage are concerned, some aspects regulated by the Civil Code are those respecting the diligence required of common carriers with regard to the safety of passengers as well as the presumption of negligence in cases of death or injury to passengers. In the case at bar, upon the happening of the accident, the presumption of negligence at once arose, and it became the duty of Calalas to prove that he had to observe extraordinary diligence in the care of his passengers. Now, did the driver of jeepney carry Sunga "safely as far as human care and foresight could provide, using the utmost diligence of very cautious persons, with due regard for all the circumstances" as required by Art. 1755? We do not think so. Several factors militate against petitioners contention. First, the jeepney was not properly parked, its rear portion being exposed about two meters from the broad shoulders of the highway, and facing the middle of the highway in a diagonal angle. This is a violation of the R.A. No. 4136, as amended, or the Land Transportation and Traffic Code, which provides: No person shall drive his motor vehicle in such a manner as to obstruct or impede the passage of any vehicle, nor, while discharging or taking on passengers or loading or unloading freight, obstruct the free passage of other vehicles on the highway. Second, it is undisputed that the driver took in more passengers than the allowed seating capacity of the jeepney, a violation of 32(a) of the same law. It provides: No person operating any motor vehicle shall allow more passengers or more freight or cargo in his vehicle than its registered capacity. The fact that Sunga was seated in an "extension seat" placed her in a peril greater than that to which the other passengers were exposed. Therefore, not only was petitioner unable to overcome the presumption of negligence imposed on him for the injury sustained by Sunga, but also, the evidence shows he was actually negligent in transporting passengers. We find it hard to give serious thought to Calalas contention that Sungas taking an "extension seat" amounted to an implied assumption of risk. It is akin to arguing that the injuries to the many victims of the tragedies in our seas should not be compensated merely because those passengers assumed a greater risk of drowning by boarding an overloaded ferry. As to the contention that the jeepney being bumped while it was improperly parked constitutes caso fortuito, the Court holds that it was not. A caso fortuito is an event which could not be foreseen, or which, though foreseen, was inevitable. This requires that the following requirements be present: (a) the cause of the breach is independent of the debtors will; (b) the event is unforeseeable or unavoidable; (c) the event is such as to render it impossible for the debtor to fulfill his 37 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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obligation in a normal manner, and (d) the debtor did not take part in causing the injury to the creditor. Calalas should have foreseen the danger of parking his jeepney with its body protruding two meters into the highway. C. Proof of Negligence Rules of Court o Rule 131, Sections 1, 2 and 3(d)

1. Ong v. Metropolitan Water District, 104 Phil. 397 (1958) Facts: Defendant owns and operates 3 recreational swimming pools to which people are invited and for which a fee of P0.50 for adults and P0.20 for children is charged. The main pool is between two small pools of oval shape known as the "Wading pool" and the "Beginners Pool." There are diving boards in the big pools and the depths of the water at different parts are indicated by appropriate marks. The care and supervision of the pools are entrusted to Simeon Chongco as chief, Armando Rule, a male nurse, and 6 lifeguards who had taken the life-saving course given by the Philippine Red Cross. Defendant has provided the pools with a ring buoy, toy roof, towing line, saving kit and a resuscitator. There is also a sanitary inspector who is in charge of a clinic. Defendant has also on display in a conspicuous place certain rules and regulations governing the use of the pools, one of which prohibits the swimming in the pool alone or without any attendant. Although defendant does not maintain a full-time physician in the swimming pool compound, it has however a nurse and a sanitary inspector ready to administer injections or operate the oxygen resuscitator if the need should arise. At about 1pm Dominador Ong, a 14-year old boy, and his brothers Ruben and Eusebio, went to defendant's swimming pools. This was not the first time that the 3 brothers had gone to said natatorium. After paying the requisite admission fee, they immediately went to one of the small pools where the water was shallow. At about 4:35 p.m., Dominador told his brothers that he was going to the locker room in an adjoining building to drink a bottle of coke. Upon hearing this, Ruben and Eusebio went to the bigger pool leaving Dominador in the small pool and so they did not see the latter when he left the pool to get a bottle of coke. There were 2 lifeguards on duty in the pool compound. Between 4:40 to 4:45 p.m., some boys who were in the pool area informed a bathe that somebody was swimming under water for quite a long time. Another boy informed lifeguard Manuel Abano of the same happening and Abano immediately jumped into the big swimming pool and retrieved the apparently lifeless body of Dominador from the bottom . Abano immediately applied manual artificial respiration . The male nurse Armando Rule came to render assistance, followed by sanitary inspector who after being called by boarded a jeep carrying with him the resuscitator and a medicine kit, and upon arriving he injected the boy with camphorated oil. After the injection, Vicente left on a jeep in order to fetch Dr . Ayuyao from the University of the Philippines . Abano continued the artificial manual respiration, and when this failed to revive him, they applied the resuscitator until the two oxygen tanks were exhausted. Dr. Ayuyao arrived with another resuscitator, but the same became of no use because he found the boy already dead. The doctor ordered that the body be taken to the clinic. Upon autopsy, it was found that the death was due to asphyxia by submersion in water. Issue: Whether the death of minor Dominador can be attributed to the negligence of defendant and/or its employees so as to entitle plaintiffs to recover damages. Held: NO. Owners of resorts to which people generally are expressly or by implication invited are legally bound to exercise ordinary care and prudence in the management and maintenance of such resorts , to the end of making them reasonably safe for visitors. Although the proprietor of a natatorium is liable for injuries to a patron, resulting from lack of ordinary care in providing for his safety, without the fault of the patron, he is not, however, in any sense deemed to be the insurer of the safety of patrons. The death of a patron within his premises does not cast upon him the burden of excusing himself from any presumption of negligence. The present action is one for damages founded on culpable negligence. The person claiming damages has the burden of proving that the damage is caused by the fault or negligence of the person from whom the damage is claimed , or of one of his employees. Appellants had striven to prove that appellee failed to take the necessary precaution to protect the lives of its patrons by not placing at the swimming pools efficient and competent employees who may render help at a moment's notice. They ascribed such negligence to appellee because the lifeguard it had on the occasion minor Ong was drowning was not available or was attending to something else with the result that his help came late. Appellants tried to prove through the testimony of Andres Hagad , Jr. and Ruben Ong that when Eusebio Ong and Hagad , Jr. detected that there was a drowning person in the bottom of the big swimming pool and shouted to the lifeguard for help , lifeguard Manuel Abano did not immediately respond to the alarm and it was only upon the third call that he threw away the magazine he was reading and allowed three or four minutes to elapse before retrieving the body from the water . This negligence of Abano , they contend, is attributable to appellee. 38 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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The claim of these two witnesses was vehemently denied by lifeguard Abano . The 2 witnesses admitted in the investigation that they narrated in their statements everything they knew of the accident, but, as found by the trial, nowhere in said statements do they state that the lifeguard was chatting with the security guard at the gate of the swimming pool or was reading a comic magazine when the alarm was given for which reason he failed to immediately respond to the alarm. What Ruben Ong particularly emphasized therein was that after the lifeguard heard the shouts for help, the latter immediately dived into the pool to retrieve the person under water . The testimony of Ruben Ong and Andres Hagad , Jr. as to the alleged failure of the lifeguard Abano to immediately respond to their call may therefore be disregarded because they are belied by their written statements. There is sufficient evidence to show that appellee has taken all necessary precautions to avoid danger to the lives of its patrons or prevent accident which may cause their death. The swimming pools of appellee are provided with a ring buoy, toy roof, towing line, oxygen resuscitator and a first aid medicine kit. There is on display in a conspicuous place within the area certain rules and regulations governing the use of the pools. The bottom of the pools is painted with black colors so as to insure clear visibility. Appellee employs six lifeguards who are all trained as they had taken a course for that purpose and were issued certificates of proficiency. There is a male nurse and a sanitary inspector with a clinic provided with oxygen resuscitator. And there are security guards who are available always in case of emergency. There are two guards at a time on duty to look after the safety of the bathers. When the body of Ong was retrieved from the bottom of the pool, the employees of appellee did everything possible to bring him back to life. Appellants now switch to the theory that even if it be assumed that the deceased is partly to be blamed for the unfortunate incident, still appellee may be held liable under the doctrine of "last clear chance" for the reason that, having the last opportunity to save the victim, it failed to do so. We do not see how this doctrine may apply considering that the record does not show how minor Ong came into the big swimming pool. The only thing the record discloses is that Ong informed his elder brothers that he was going to the locker room to drink a bottle of coke but that from that time on nobody knew what happened. The doctrine of last clear chance simply means a person who has the last clear chance or opportunity of avoiding an accident, notwithstanding the negligent acts of his opponent or the negligence of a third person which is imputed to his opponent, is considered in law solely responsible for the consequences of the accident. Since it is not known how minor Ong came into the big swimming pool and it being apparent that he went there without any companion in violation of one of the regulations of appellee and it appearing that lifeguard responded to the call for help as soon as his attention was called to it and immediately after retrieving the body all efforts at the disposal of appellee had been put into play in order to bring him back to life, there is no room for the application of the doctrine now invoked by appellants to impute liability to appellee. The last clear chance doctrine can NEVER apply where the party charged is required to act instantaneously , and if the injury cannot be avoided by the application of all means at hand after the peril is or should have been discovered; at least in cases in which any previous negligence of the party charged cannot be said to have contributed to the injury. Further, expert evidence showed that Dominador Ong might have dived where the water was only 5.5 feet deep, and in so doing he might have hit or bumped his forehead against the bottom of the pool, as a consequence of which he was stunned, and which to his drowning. As a boy scout he must have received instructions in swimming. He knew, or should have known that it was dangerous for him to dive in that part of the pool. D. Presumption of Negligence (i) Res ipsa loquitur This applies where, (1) the accident was of such character as to warrant an inference that it would not have happened except for the defendants negligence; (2) the accident must have been caused by an agency or instrumentality within the exclusive management or control of the person charged with the negligence complained of; and (3) the accident must not have been due to any voluntary action or contribution on the part of the person injured.

1. Africa v. Caltex, 16 SCRA 448 (1966) Facts: In the afternoon of March 18, 1948 a fire broke out at the Caltex service station. It started while gasoline was being hosed from a tank truck (driven by Flores) into the underground storage, right at the opening of the receiving tank where the nozzle of the hose was inserted. The fire spread to and burned several neighboring houses, including the personal properties and effects inside them. Their owners, among them petitioners here, sued Caltex Philippines and Mateo Boquiren, the first as alleged owner of the station and the second as its agent in charge of operation. Issue: Whether or not, without proof as to the cause and origin of the fire, the doctrine of res ipsa loquitur should apply so as to presume negligence on the part of Caltex.

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Torts & Damages 2013

Atty. Jess Lopez

Held: YES. In the case of Espiritu vs. Philippine Power and Development Co., the defendant therein disclaimed liability on the ground that the plaintiff had failed to show any specific act of negligence. The CA overruled the defense under the doctrine of res ipsa loquitur. The court said: In case of noncontractual negligence, or culpa aquiliana, the burden of proof is on the plaintiff to establish that the proximate cause of his injury was the negligence of the defendant . It is also a recognized principle that where the thing which caused injury, without fault of the injured person, is under the exclusive control of the defendant and the injury is such as in the ordinary course of things does not occur if he having such control use proper care, it affords reasonable evidence, in the absence of the explanation, that the injury arose from defendants want of care. And the burden of evidence is shifted to him to establish that he has observed due care and diligence . This rule is known by the name of res ipsa loquitur (the transaction speaks for itself). Gasoline is a highly combustible material, in the storage and sale of which extreme care must be taken. On the other hand, fire is not considered a fortuitous event, as it arises almost invariably from some act of man. The gasoline station, with all its appliances, equipment and employees, was under the control of appellees. A fire occurred therein and spread to and burned the neighboring houses. The persons who knew or could have known how the fire started were appellees and their employees, but they gave no explanation thereof whatsoever. It is a fair and reasonable inference that the incident happened because of want of care. In the report submitted by Captain Mariano of the Manila Police: The location is within a very busy business district near the Obrero Market, a railroad crossing and very thickly populated neighborhood where a great number of people mill around throughout the day until late at night. The passersby, those waiting for buses or transportation, those waiting to cross the streets and others loafing around have to occupy not only the sidewalks but also portion of the gasoline station itself. Whatever be the activities of these people smoking or lighting a cigarette cannot be excluded and this constitute a secondary hazard to its operation which in turn endangers the entire neighborhood to conflagration. This gasoline service station is also used by its operator as a garage and repair shop for his fleet of taxicabs numbering ten or more, adding another risk to the possible outbreak of fire at this already small but crowded gasoline station. The foregoing report, having been submitted by a police officer in the performance of his duties on the basis of his own personal observation of the facts reported, may properly be considered as an exception to the hearsay rule. These facts, descriptive of the location and objective circumstances surrounding the operation of the gasoline station in question, strengthen the presumption of negligence under the doctrine of res ipsa loquitur, since on their face they called for more stringent measures of caution than those which would satisfy the standard of due diligence under ordinary circumstances. Flores was the driver of the gasoline tank wagon who, alone and without assistance, was transferring the contents thereof into the underground storage when the fire broke out. He said: Before loading the underground tank there were no people, but while the loading was going on, there were people who went to drink coca-cola at the coca-cola stand which is about a meter from the underground tank. He added that when the tank was almost filled he went to the tank truck to close the valve, and while he had his back turned to the manhole he heard someone shout fire. Even then the fire possibly would not have spread to the neighboring houses were it not for another negligent omission on the part of defendants, namely, their failure to provide a concrete wall high enough to prevent the flames from leaping over it. 2. FF Cruz and Co., Inc., v. Court of Appeals, G.R. No. 52732, August 29, 1988 Facts: FF Cruz owned a furniture manufacturing shop in Caloocan city, adjacent to the residence of the Mable Family. Sometime in 1971, Gregorio Mable approached Eric Cruz, FF Cruz plant manager, to request for the construction of a firewall. This was repeated several times, but was left unheeded. In 1974, fire broke out in FF Cruzs shop. Efforts to put it out were futile, and both the shop and house were razed. The cause of the fire was never discovered. The Mables collected insurance, and then instituted an action against petitioner. The CFI held in the Mables favor. The CA affirmed. A petition for review to the Supreme Court was denied; hence, this motion for reconsideration. Issue: Whether or not res ipsa loquitur is applicable to hold FF Cruz liable. Held: YES. The doctrine of res ipsa loquitur, whose application to the instant case petitioner objects to, may be stated as follows: Where the thing which caused the injury complained of is shown to be under the management of the defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who 40 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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have its management or control use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care. The facts of the case likewise call for the application of the doctrine, considering that in the normal course of operations of a furniture manufacturing shop, combustible material such as wood chips, sawdust, paint, varnish and fuel and lubricants for machinery may be found thereon. It must also be noted that negligence or want of care on the part of FF Cruz or its employees was not merely presumed. The CA found that FF Cruz failed to construct a firewall between its shop and the Mable residence as required by a city ordinance; that the fire could have been caused by a heated motor or a lit cigarette; that gasoline and alcohol were used and stored in the shop; and that workers sometimes smoked inside the shop. Even without applying the doctrine of res ipsa loquitur, FF Cruzs failure to construct a firewall in accordance with city ordinances would suffice to support a finding of negligence. In the instant case, with more reason should FF Cruz be found guilty of negligence since it had failed to construct a firewall between its property and the Mables res idence which sufficiently complies with the pertinent city ordinances. The failure to comply with an ordinance providing for safety regulations had been ruled by the Court as an act of negligence. The CA, therefore, had more than adequate basis to find FF Cruz liable for the loss sustained by the Mable Family. While this Court finds that FF Cruz is liable for damages as found by the Court of Appeals, the fact that the Mable Family have been indemnified by their insurer in the amount of P35,000.00 for the damage caused to their house and its contents has not escaped the attention of the Court. Hence, the Court holds that in accordance with Article 2207 of the Civil Code the amount of P35,000.00 should be deducted from the amount awarded as damages. 3. Cebu Shipyard and Engineering Works, Inc., v. William Lines, Inc., 306 SCRA 762 (1999) Facts: William Lines is the owner of M/V Manila City, a luxury passenger-cargo vessel insured with Prudential for P45M for hull and machinery. The Hull Policy included an Additional Perils Clause covering loss of or damage to the vessel through the negligence of, among others, ship repairmen. On February 5, 1991, William Lines brought M/V Manila City to the Cebu Shipyard for annual dry-docking and repair. An arrival conference was held between representatives of William Lines and CSEW to discuss the work to be undertaken on the vessel. The contracts were denominated as Work Orders. Pertinent stipulations therein are as follows: 10. Contractor shall replace at its own work and at its own cost any work or material which can be shown to be defective and which is communicated in writing within one (1) month of redelivery of the vessel 11. Save as provided in Clause 10, the Contractor shall not be under any liability to the Customer either in contract or for delict or quasi-delict or otherwise except for negligence and such liability shall itself be subject to the following overriding limitations and exceptions, namely to the sum of P1M only. 20. The insurance on the vessel should be maintained by the customer and/or owner of the vessel during the period the contract is in effect. On February 16, 1991, after subject vessel was transferred to the docking quay, it caught fire and sank the following day, resulting to its eventual total loss. William Lines filed a complaint for damages against CSEW, alleging that the fire which broke out in M/V Manila City was caused by CSEWs negligence and lack of care. The Complaint was amended impleading Prudential as co-plaintiff, after the latter had paid William Lines the value of the hull and machinery insurance on the M/V Manila City. Prudential was subrogated to the claim of P45M representing the value of the said insurance it paid. Trial court ruled in favor of William Lines, and ordered CSEW to pay Prudential and William Lines. During the pendency of the appeal, CSEW and William Lines had an amicable settlement. On the basis of which, the CA ordered a partial dismissal of the case insofar as CSEW and William Lines are concerned. CA affirmed the appealed decision. MR was denied, hence this petition. According to CSEW, while in the process of repairing the steel plate, smoke was just noticed gathering on the ceiling of the passageway along the crew cabins but did not see any fire as the crew cabins on either side of the passageway were locked. When M/V Manila City capsized, steel and angle bars were noticed to have been newly welded along the port side of the hull of the vessel, at the level of the crew cabins. According to CSEW, William Lines did not previously apply for a permit to do hotworks on the said portion of the ship as it should have done pursuant to its work order with CSEW. Insurer Prudential on the other hand, asserts that the fire was due to the negligence of the CSEW workers who were cropping out steel plates on Tank Top No. 12 using acetylene, oxygen and welding torch as seen by the Chief Mate 41 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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of M/V Manila City. The rubber insulation wire coming out of the air-conditioning unit was already burning, prompting him to scold the workers. Witnesses also saw smoke coming from Tank No. 12. Crew members were assembled to put out the fire. When it was too hot for them to stay on board and seeing that the fire cannot be controlled, the vessels crew members were forced to withdraw. CSEW claims that contrary to what the CA found, CSEW maintains that it did not have exclusive control over the M/V Manila City and the trial court and the Court of Appeals erred in applying the doctrine of res ipsa loquitur. They claim that they did not have management and control over M/V Manila City. William Lines retained control over the vessel as the ship captain remained in command and the ships crew were still present. Also, while it imposed certain rules and regulations on William Lines, it was in the exercise of due diligence and not an indication of CSEWs exclusive control over subject vessel. Issue: Whether or not CSEW was correctly held liable under the res ipsa loquitur. Held: YES. The finding that M/V Manila City caught fire and sank by reason of the negligence of the workers of CSEW, when the said vessel was under the exclusive custody and control of CSEW is accordingly upheld. Under the circumstances of the case, the doctrine of res ipsa loquitur applies. For the doctrine to apply to a given situation, the following conditions must concur : (1) the accident was of a kind which does not ordinarily occur unless someone is negligent; and (2) that the instrumentality or agency which caused the injury was under the exclusive control of the person charged with negligence. The facts and evidence on record reveal the concurrence of said conditions in the case under scrutiny. First, the fire that occurred and consumed M/V Manila City would not have happened in the ordinary course of things if reasonable care and diligence had been exercised. In other words, some negligence must have occurred. Second, the agency charged with negligence is CSEW which had control over subject vessel when it was docked for annual repairs. Even without applying res ipsa loquitur, in light of the direct evidence on record, the ineluctable conclusion is that CSEW was negligent and consequently liable for damages to the Williams Lines. The trial court found direct evidence to prove that the workers and/or employees of CSEW were remiss in their duty of exercising due diligence in the care of subject vessel. The direct evidence substantiates the conclusion that CSEW was really negligent. Neither is there tenability in the contention of CSEW that the CA erroneously ruled on the inadmissibility of the fire experts testimonies CSEW introduced on the probable cause and origin of the fire. Courts are not bound by the testimonies of expert witnesses. Although they may have probative value, reception in evidence of expert testimonies is within the discretion of the court. If from the facts and evidence on record, a conclusion is readily ascertainable, there is no need for the judge to resort to expert opinion evidence. In the case under consideration, the testimonies of the fire experts were not the only available evidence on the probable cause and origin of the fire. There were witnesses who were actually on board the vessel when the fire occurred. Between the testimonies of the fire experts who merely based their findings and opinions on interviews and the testimonies of those present during the fire, the latter are of more probative value. Note: CSEW claims that their Work Order contains Clause 11 which limits their liability to P1M only. However, the Court did not uphold the validity of such provision because to allow CSEW to limit its liability to P1M notwithstanding the fact that the total loss suffered by the assured and paid for by Prudential amounted to P45M would sanction the exercise of a degree of diligence short of what is ordinarily required. 4. DM Consunji v. Court of Appeals, G.R. No. 137873, April 20, 2001 Facts: Jose Juego, construction worker of D.M. Consunji, Inc., fell 14 floors from the Renaissance Tower, Pasig City to his death. He pronounced DOA by the attending physician of Rizal Medical Center. Juego was crushed to death when the platform they were standing/sitting on fell. Investigation disclosed that at the given time, date ,and place, while Juego with 2 other workers were doing their work as carpenters at the elevator core of the 14th floor on board a platform made of channel beam (steel) with pinulid plywood flooring and cable wires attached to its 4 corners and hooked at the 5 ton chain block, when suddenly, the bolt or pin which was merely inserted to connect the chain block with the platform, got loose x x x causing the whole platform assembly and the victim to fall thereby crushing the victim to death, save his two (2) companions who luckily jumped out for safety. According to the report, the falling of the platform was due to the removal or loosening of the pin, which was merely inserted, to the connecting points of the chain block and platform but without a safety lock. His widow, Maria, filed complaint for damages against the employer, D.M. Consunji. RTC rendered a decision in favor of the widow. CA affirmed. Issue: Whether or not res ipsa loquitur is applicable to hold DM Consunji liable for negligence.

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Torts & Damages 2013

Atty. Jess Lopez

Held: YES. What DM Consunji takes exception to is PO3 Villanuevas testimony that the cause of t he fall of the platform was the loosening of the bolt from the chain block. It is claimed that such portion of the testimony is mere opinion. Subject to certain exceptions, the opinion of a witness is generally not admissible. The companys contention, however, loses relevance in the face of the application of res ipsa loquitur. The effect of the doctrine is to warrant a presumption or inference that the mere fall of the elevator was a result of the person having charge of the instrumentality was negligent. As a rule of evidence, the doctrine is peculiar to the law of negligence which recognizes that prima facie negligence may be established without direct proof and furnishes a substitute for specific proof of negligence . While negligence is not ordinarily inferred or presumed, and while the mere happening of an accident or injury will not generally give rise to an inference or presumption that it was due to negligence on defendants part, under res ipsa loquitur, which means, literally, the thing or transaction speaks for itself, the facts or circumstances accompanying an injury may be such as to raise a presumption, or at least permit an inference of negligence on the part of the defendant, or some other person who is charged with negligence. Where it is shown that the thing or instrumentality which caused the injury complained of was under the control or management of the defendant, and that the occurrence resulting in the injury was such as in the ordinary course of things would not happen if those who had its control or management used proper care, there is sufficient evidence, or, as sometimes stated, reasonable evidence, in the absence of explanation by the defendant, that the injury arose from or was caused by the defendants want of care. One of the theoretical bases for the doctrine is its necessity, i.e., that necessary evidence is absent or not available. The doctrine is based in part upon the theory that the defendant in charge of the instrumentality which causes the injury either knows the cause of the accident or has the best opportunity of ascertaining it and that the plaintiff has no such knowledge, and therefore is compelled to allege negligence in general terms and to rely upon the proof of the happening of the accident in order to establish negligence. The inference which the doctrine permits is grounded upon the fact that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to the defendant but inaccessible to the injured person. It has been said that the doctrine furnishes a bridge by which a plaintiff, without knowledge of the cause, reaches over to defendant who knows or should know the cause, for any explanation of care exercised by the defendant in respect of the matter of which the plaintiff complains. The doctrine, another court has said, is a rule of necessity, in that it proceeds on the theory that under the peculiar circumstances in which the doctrine is applicable, it is within the power of the defendant to show that there was no negligence on his part, and direct proof of defendants negligence is beyond plaintiffs power . Another requirement for the res ipsa loquitur doctrine to apply is that it must appear that the injured party had no knowledge or means of knowledge as to the cause of the accident, or that the party to be charged with negligence had superior knowledge or opportunity for explanation of the accident. Res ipsa loquitur is a rule of necessity and it applies where evidence is absent or not readily available, provided the following requisites are present: (1) the accident was of a kind which does not ordinarily occur unless someone is negligent; (2) the instrumentality or agency which caused the injury was under the exclusive control of the person charged with negligence; and (3) the injury suffered must not have been due to any voluntary action or contribution on the part of the person injured. All the requisites are present in the case at bar. No worker is going to fall from the floor of a building to the basement while performing work in a construction site unless someone is negligent. Thus, the first requisite for the application of the rule is present. As explained earlier, the construction site with all its paraphernalia and human resources that likely caused the injury is under the exclusive control and management of appellant. Thus, the second requisite is also present. No contributory negligence was attributed to the appellees deceased husband. Thus, the last requisite is also present. DM Consunji does not dispute the existence of the requisites for the application of res ipsa loquitur, but argues that the presumption or inference that it was negligent did not arise since it proved that it exercised due care to avoid the acciden t which befell respondents husband. The company apparently misapprehends the procedural effect of the doctrine. Defendants negligence is presumed or inferred when the plaintiff establishes the requisites for the application of res ipsa loquitur. Once the plaintiff makes out a prima facie case of all the elements, the burden then shifts to defendant to explain. The presumption or inference may be rebutted or overcome by other evidence and, under appropriate circumstances a disputable presumption, such as that of due care or innocence, may outweigh the inference. DM Consunji cites the sworn statement of its leadman Ferdinand Fabro executed before the police investigator as evidence of its due care. According to Fabros sworn statement, the company enacted rules and regulations for the safet y and security of its workers. Moreover, the leadman and the bodegero inspect the chain block before allowing its use.

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Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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Atty. Jess Lopez

It is ironic that the company relies on Fabros sworn statement as proof of its due care but, in arguing that private respondent failed to prove negligence on the part of DM Consunjis employees, also assails the same statement for being hearsay. Fabros sworn statement is hearsay and inadmissible. Affidavits are inadmissible as evidence under the hearsay rule, unless the affiant is placed on the witness stand to testify thereon. The inadmissibility of this sort of evidence is based not only on the lack of opportunity on the part of the adverse party to cross-examine the affiant, but also on the commonly known fact that, generally, an affidavit is not prepared by the affiant himself but by another who uses his own language in writing the affiants statements which may either be omitted or misunderstood by the one writing them. DM Consunji, therefore, cannot use said statement as proof of its due care. The company does not cite any other evidence to rebut the inference or presumption of negligence. 5. National Power Corporation v. Court of Appeals, G.R. No. 124378, March 8, 2005 Facts: The Office of the President issued a memorandum entitled Prescribing Measures to Preserve the Lake Lanao Watershed, To Enforce the Reservation of Areas Around the Lake Below Seven Hundred And Two Meters Elevation, and for Other Purposes. It instructed the NPC to build the Agus Regulation Dam at the mouth of Ag us River in Lanao del Sur, at a normal maximum water level of Lake Lanao at 702 meters elevation. Petitioners constructed the said dam in 1978. The Abdullahs (respondents) were owners of fishponds sitting along the Lake Lanao shore. They spent substantial amounts to construct, maintain and stock their respective fishponds with fish fingerlings. However in 1986, all these were washed away when the water level of the lake escalated and the lake shore was flooded . They blamed the inundation on the Agus Regulation Dam, alleging that NPC failed to increase the outflow of water even as the water level of the lake rose past 702 meters due to heavy rains. They wrote letters to the NPC which was ignored, alleging that the water never rose beyond 702 meters. They were thus constrained to file a complaint for damages, alleging that the negligence and inexperience of NPCs employees assigned to operate the Agus Regulation Dam were the proximate causes of the damage caused to their properties and livelihood. The trial court and the CA ruled in favor of the Abdullahs. Hence this appeal by NPC. Issue: Whether or not NPC is liable for the damages endured by the Abdullahs Held: YES. In the case at bar, both the CA and the trial court uniformly found that it was such negligence on the part of NPC which directly caused the damage to the fishponds of private respondents. The fishponds of the Abdullahs were inundated and damaged when the water level escalated in October 1986. When the water level rises due to the rainy season, the NPC ought to release more water to the Agus River to avoid flooding and prevent the water from going over the maximum level. And yet, NPC failed to do so, resulting in the inundation of the nearby estates. The trial court and the CA held that the data contained in NPCs records collapse in the face of the actual state of the affected areas. During the ocular inspection conducted by the lower court where representatives of both parties were present, it was established that in the subject areas, the benchmarks as pointed out by the NPC representative, could not be seen nor reached because they were totally covered with water. This fact, by itself, constitutes an unyielding proof that the water level did rise above the benchmarks and inundated the properties in the area. In the absence of any clear explanation on what other factors could have explained the flooding in the neighboring properties of the dam, it is fair to reasonably infer that the incident happened because of want of care on the part of NPC to maintain the water level of the dam within the benchmarks at the maximum normal lake elevation of 702 meters. An application of the doctrine of res ipsa loquitur, the thing speaks for itself, comes to fore. Where the thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want of care. Additionally, despite the clear mandate of Memorandum Order No. 398, it was only after many years from the time the dam was built that NPC installed said benchmarks. At that time, many farms and houses were already swamped and many fishponds, including those of the Abdullahs, damaged. 6. Perla Compania de Seguros, Inc., v. Spouses Sarangaya, G.R. No. 147746, October 25, 2005 Facts: Sps Sarangaya constructed and own a building in Isabela known as the Super A Building. It was a 1-storey commercial building subdivided into 3 doors. Each of which was leased out. The 2-storey residence of the Spouses was behind said building. In 1988, Perla Inc., through its branch manager Pascual, leased the first door of the Super A Building. Perla further subdivided the space into 2 wherein one part was used as an office while the other side was used as a garage for a company-provided vehicle (Ford Cortina, 14 years old) used in covering different towns within his area of supervision. 44 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

Pascual left for Pampanga without bringing the car. Three days later, he returned. Upon checking his schedule, he decided to warm-up the car. When he switched on the ignition key, the engine made an odd sound and did not start. He did it again but to no avail. He then saw a small flame coming out of the engine. Startled, he turned it off, alighted, and started to push it out of the garage. Suddenly, fire spewed out of its rear compartment and engulfed the whole garage. Pascual was trapped inside and suffered burns on his face, legs, and arms. Meanwhile, the Spouses were watching TV when they heard 2 explosions. The smell of gasoline permeated the air and, in no time, fire spread inside their house, destroying all their belongings. According to the city fire marshall, the incident was accidental. His report also disclosed that Perla had no fire permit as required by law. Based on this report, Spouses filed a criminal complaint for Reckless Imprudence Resulting to Damage to Property against Pascual but was eventually withdrawn by the prosecutor. Thereafter, complaint for damages based on quasi-delict was filed against Perla alleging that Pascual acted with gross negligence while Perla lacked the diligence in the selection and supervision of its employee. During trial Spouses presented a witness testifying that Pascual was seen buying gasoline and placed the container in the rear compartment of the car. In his defense, Pascual claims fortuitous event. Trial court declared Perla solidarily liable with Pascual and that despite the failure to prove the precise cause of the fire, Pascual was deemed negligent via res ipsa loquitur. CA affirmed. Issue: Whether Perla is liable for the alleged negligence of its employee (Pascual) based on res ipsa loquitur. Held: YES. Res ipsa loquitur is a Latin phrase which literally means the thing or the transaction speaks for itself. It relates to the fact of an injury that sets out an inference to the cause thereof or establishes the plaintiffs prima facie case. The doctrine rests on inference and not on presumption. The facts of the occurrence warrant the supposition of negligence and they furnish circumstantial evidence of negligence when direct evidence is lacking . The doctrine is based on the theory that the defendant either knows the cause of the accident or has the best opportunity of ascertaining it and the plaintiff, having no knowledge thereof, is compelled to allege negligence in general terms. In such instance, the plaintiff relies on proof of the happening of the accident alone to establish negligence. It provides a means by which a plaintiff can pin liability on a defendant who, if innocent, should be able to explain the care he exercised to prevent the incident complained of. Thus, it is the defendants responsibility to show that there was no negligence on his part. To sustain the allegation of negligence based on the doctrine of res ipsa loquitur, the following requisites must concur: (1) the accident is of a kind which does not ordinarily occur unless someone is negligent; (2) the cause of the injury was under the exclusive control of the person in charge; and (3) the injury suffered must not have been due to any voluntary action or contribution on the part of the person injured. Under the FIRST, ordinary refers to the usual course of events. Flames spewing out of a car engine, when it is switched on, is obviously not a normal event. Neither does an explosion usually occur when a car engine is revved. Hence, in this case, without any direct evidence as to the cause of the accident, the doctrine of res ipsa loquitur comes into play and, from it, we draw the inference that based on the evidence at hand, someone was in fact negligent and responsible for the accident. The fact that Pascual, as the caretaker of the car, failed to submit any proof that he had it periodically checked revealed his negligence. A prudent man should have known that a 14-year-old car, constantly used in provincial trips, was definitely prone to damage and other defects. Under the SECOND, where the circumstances which caused the accident are shown to have been under the management or control of a certain person and, in the normal course of events, the incident would not have happened had that person used proper care, the inference is that it occurred because of lack of such care. The car where the fire originated was under the control of Pascual. Being its caretaker, he alone had the responsibility to maintain it and ensure its proper functioning. No other person, not even the respondents, was charged with that obligation except him. He failed to overcome the burden to prove that he observed all that was necessary to prevent the accident from happening. Under the THIRD, there is nothing in the records to show that respondents contributed to the incident. They had no access to the car and had no responsibility regarding its maintenance even if it was parked in a building they owned. The exempting circumstance of caso fortuito may be availed only when: (a) the cause of the unforeseen and unexpected occurrence was independent of the human will; (b) it was impossible to foresee the event which constituted the caso fortuito or, if it could be foreseen, it was impossible to avoid; (c) the occurrence must be such as to render it impossible to perform an obligation in a normal manner and (d) the person tasked to perform the obligation must not have participated in any course of conduct that aggravated the accident. While the Perla does not appear to have erred in considering Pascual for his position, its lack of supervision over him made it jointly and solidarily liable for the fire. 7. Child Learning Center, Inc., v. Tagorio, G.R. No. 150920, November 25, 2005 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

45

Torts & Damages 2013

Atty. Jess Lopez

Facts: During the school year 1990-91, Timothy was a Grade 4 student at Marymount School, an academic institution operated and maintained by Child Learning Center, Inc. (CLC). In the afternoon of March 5, 1991, Timothy entered the boys comfort room at the 3F of the Marymount building to answer the call of nature. He, however, found himself locked inside and unable to get out. Timothy started to panic and so he banged and kicked the door and yelled several times for help. When no help arrived he decided to open the window to call for help. In the process of opening the window, Timothy went right through and fell down 3 stories. Timothy was hospitalized and given medical treatment for serious multiple physical injuries. A tort case under Article 2176 was filed by the parents against the CLC, the members of its Board of Directors (Spouses Edgardo and Sylvia Limon, et al). Tagario contends that CLC failed to provide precautionary measures to avoid harm and injury to its students in two instances: (1) failure to fix a defective door knob despite having been notified of the problem; and (2) failure to install safety grills on the window where Timothy fell from. In its defense, CLC claimed that: (1) the door was not defective, (2) the fall was due to the kids own negligence and (3) it exercised the diligence of a good father of a family. The RTC and CA held CLC liable solidarily with the Limon spouses (since they were the ones managing the school). Issue: Whether CLC and Spouses Limon should be held liable for Tagorios injuries. Held: YES to CLC but NOT TO LIMON. CLC claims that no direct evidence was presented to prove that the door knob was indeed defective on the date in question. However, first, both the RTC and the CA had a factual finding that the lock of the door was defective. Second, the fact, however, that Timothy fell out through the window shows that the door could not be opened from the inside. That sufficiently points to the fact that something was wrong with the door, if not the door knob, under the principle of res ipsa loquitor. The doctrine applies where (1) the accident was of such character as to warrant an inference that it would not have happened except for the defendants negligence ; (2) the accident must have been caused by an agency or instrumentality within the exclusive management or control of the person charged with the negligence complained of; and (3) the accident must not have been due to any voluntary action or contribution on the part of the person injured. CLC is clearly answerable for failure to see to it that the doors of their school toilets are at all times in working condition. The fact that a student had to go through the window, instead of the door, shows that something was wrong with the door. As to the absence of grills on the window, CLC contended that there was no such requirement under the Building Code. Nevertheless, the fact is that such window, as CLC themselves point out, was approximately 1.5 meters from the floor, so that it was within reach of a student who finds the regular exit, the door, not functioning. CLC, with the due diligence of a good father of the family, should have anticipated that a student, locked in the toilet by a nonworking door, would attempt to use the window to call for help or even to get out. Considering all the circumstances, therefore, there is sufficient basis to sustain a finding of liability on CLCs part. Our pronouncement that Timothy climbed out of the window because he could not get out using the door, negates CLCs other contention that the proximate cause of the accident was Timothys own negligence. The injuries he sustained from the fall were the product of a natural and continuous sequence, unbroken by any intervening cause, that originated from CLCs own negligence. CLCs argument that it exercised the due diligence of a good father of a family in the selection and supervision of its employees is not decisive. Due diligence in the selection and supervision of employees is applicable where the employer is being held responsible for the acts or omissions of others under Article 2180. In this case, CLCs liability is under Art. 2176, premised on the fact of its own negligence in not ensuring that all its doors are properly maintained.

8. Capili v. Spouses Cardaa, G.R. No. 157906, November 2, 2006 Facts: Cardana, a grade 6 student, was walking along the perimeter fence of the San Roque Elementary School when a branch of a caimito tree located within the school premises fell on her, causing her instantaneous death. Her parents filed a case for damages. Cardana allege that as early as December 15, 1992, a resident of the barangay, Lerios, reported on the possible danger the tree posed to passersby. Also, because of Capilis (principal) gross negligence and lack of foresight caused the death of their daughter. Capili denied the accusation and said that at that time Lerios had only offered to buy the tree. Also, she denied knowing that the tree was dead and rotting. She presented witnesses who attested that she had brought up the offer of Lerios to the other teachers during a meeting and assigned Remedios Palana to negotiate the sale . Issue: Whether , as principal, Capili was negligent and liable for the death of Jasmin Cardana . Held: YES. Capili asserts that she was not negligent about the disposal of the tree since she had assigned her next-in-rank, Palana, to see to its disposal. Despite her physical inspection of the school grounds, she did not observe any indication that the tree was already rotten nor did any of her 15 teachers inform her that the tree was already rotten. 46 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

Respondents insist that petitioner knew that the tree was dead and rotting, yet, she did not exercise reasonable care and caution which an ordinary prudent person would have done in the same situation. A negligent act is one from which an ordinary prudent person in the actors position, in the same or similar circumstances, would foresee such an appreciable risk of harm to others as to cause him not to do the act or to do it in a more careful manner. The probability that the branches of a dead and rotting tree could fall and harm someone is clearly a danger that is foreseeable. As the school principal, Capili was tasked to see to the maintenance of the school grounds and safety of the children within the school and its premises. That she was unaware of the rotten state of a tree whose falling branch had caused the death of a child speaks ill of her discharge of the responsibility of her position. Under Article 2176 plaintiff has to prove by a preponderance of evidence: (1) the damages suffered by the plaintiff; (2) the fault or negligence of the defendant or some other person for whose act he must respond; and (3) the connection of cause and effect between the fault or negligence and the damages incurred. That respondents daughter, Jasmin, died as a result of the dead and rotting tree within the schools premises shows that the tree was indeed an obvious danger to anyone passing by and calls for application of the principle of res ipsa loquitur. The doctrine of res ipsa loquitur applies where (1) the accident was of such character as to warrant an inference that it would not have happened except for the defendants negligence; (2) the accident must have been caused by an agency or instrumentality within the exclusive management or control of the person charged with the negligence complained of; and (3) the accident must not have been due to any voluntary action or contribution on the part of the person injured. The effect of the doctrine of res ipsa loquitur is to warrant a presumption or inference that the mere falling of the branch of the dead and rotting tree which caused the death of respondents daughter was a result of petitioners negligence, being in charge of the school. It is peculiar to the law of negligence which recognizes that prima facie negligence may be established without direct proof and furnishes a substitute for specific proof of negligence. While negligence is not ordinarily inferred or presumed, under the doctrine of res ipsa loquitur, which means, literally, the thing or transaction speaks for itself, the facts or circumstances accompanying an injury may be such as to raise a presumption, or at least permit an inference of negligence on the part of the defendant, or some other person who is charged with negligence. Where it is shown that the thing or instrumentality which caused the injury complained of was under the control or management of the defendant, and that the occu rrence resulting in the injury was such as in the ordinary course of things would not happen if those who had its control or management used proper care, there is sufficient evidence, or, as sometimes stated, reasonable evidence, in the absence of explanation by the defendant, that the injury arose from or was caused by the defendants want of care. The procedural effect of the doctrine of res ipsa loquitur is that petitioners negligence is presumed once respondents established the requisites for the doctrine to apply. Once respondents made out a prima facie case of all requisites, the burden shifts to petitioner to explain. The presumption or inference may be rebutted. As school principal, Capili is expected to oversee the safety of the schools premises. The fact that she failed to see the immediate danger posed by the dead and rotting tree shows she failed to exercise the responsibility demanded by her position. Even if Capili had assigned disposal of the tree to another teacher , she exercises supervision over her assignee . More than a month had lapsed from the time petitioner gave instruction to her assistant Palana on December 15, 1992, to the time the incident occurred. Clearly, she failed to check seasonably if the danger posed by the rotting tree had been removed. Thus, we cannot accept her defense of lack of negligence. 9. Huang v. Philippine Hoteliers Inc., G.R. No. 180440, December 5, 2012 See previous Doctrine: Res Ipsa Loquitur is not applicable in this case. Res ipsa loquitur is a Latin phrase which literally means the thing or the transaction speaks for itself. It relates to the fact of an injury that sets out an inference to the cause ther eof or establishes the plaintiffs prima facie case. The doctrine rests on inference and not on presumption. The facts of the occurrence warrant the supposition of negligence and they furnish circumstantial evidence of negligence when direct evidence is lacking. Simply stated, this doctrine finds no application if there is direct proof of absence or presence of negligence. If there is sufficient proof showing the conditions and circumstances under which the injury occurred , then the creative reason for the said doctrine disappears. Further, the doctrine applies where: (1) the accident was of such character as to warrant an inference that it would not have happened except for the defendants negligence; (2) the accident must have been caused by an agency or instrumentality within the exclusive management or control of the person charged with the negligence complained of; and (3) the accident must not have been due to any voluntary action or contribution on the part of the person injured. 47 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

In this case, even granting that respondents PHI and DTPCIs staff negligently turned off the lights and locked the door, the folding wooden counter top would still not fall on Huangs head had she not lifted the same . Although the folding wooden counter top is within the exclusive management or control of respondents PHI and DTPCI, the falling of the same and hitting the head of Huang was not due to the negligence of the former . As found by both lower courts, the folding wooden counter top did not fall on Huangs head withou t any human intervention. Records showed that she lifted the said folding wooden counter top that eventually fell and hit her head. This Court is not unaware that in Huangs Complaint and in her open court testimony, her assertion was, while she was passing through the counter door, she was suddenly knocked out by a hard and heavy object, which turned out to be the folding wooden counter top. However, in her open court testimony, particularly during cross -examination, she confirmed that she made such statement that she lifted the hinge massive wooden section of the counter near the swimming pool. In view thereof, this Court cannot acquiesce to her theory that her case is one of res ipsa loquitur as it was sufficiently established how she obtained that bukol or hematoma. 10. Batiquin v. Court of Appeals, 258 SCRA 334 (1996) Facts: Dr. Batiquin was a Resident Physician at the Negros Oriental Provincial Hospital from 1978 to 1989. She was likewise the Accounting Head from 1987 to 1989. Respondent Mrs. Villegas is a married woman who was under Dr. Batiquins prenatal care. Batiquin, with the assistance of Dr. Sy, Nurse Diones, and other student nurses performed a caesarian section on her, delivering her 1st child. A week later, she checked out of the hos pital, paying Batiquin P1,5000 professional fee. Soon after leaving, she began suffering abdominal pains coupled with fever. She gradually lost her appetite. On consultation with Batiquin, she took medications. In the meantime, she was issued a Medical Certificate, certifying her fitness to return to work at the Rural Bank of Ayungon. However, the pains and fever kept recurring and she rapidly lost weight. She then consulted Dr. Kho at the Holy Childs Hospital in Dumaguete City. On examination, a mass in her abdomen was discovered, and a blood count showed an infection in her abdominal cavity. She agreed to surgery. When Dr. Kho opened her abdomen, she found whitish-yellow discharge inside, an ovarian cyst on each of the left and right ovaries which gave out pus, dirt and pus behind the uterus, and a piece of rubber materials on the right side of the uterus embedded on the ovarian cyst , 2 inches by 3/4 inch in size. This piece of rubber material which Dr. Kho described as a "foreign body" looked like a piece of a rubber glove and which was also rubber-drain like. It could have been a torn section of a surgeon's gloves or could have come from other sources. And this foreign body was the cause of the infection of the ovaries and consequently of all the discomfort suffered by Villegas after her delivery. Aside from Dr. Kho's testimony, the evidence which mentioned the piece of rubber were the Medical Certificate, a Progress Record, an Anesthesia Record, a Nurse's Record, and a Physician's Discharge Summary. The trial court, however, regarded these documentary evidence as mere hearsay. Except for the Medical Certificate, all the above documents were allegedly prepared by persons other than Dr. Kho, and she merely affixed her signature on some of them to express her agreement thereto . The piece of rubber allegedly found near Villegas' uterus was not presented in court, and although Dr. Kho testified that she sent it to a pathologist in Cebu City for examination, it was not mentioned in the pathologist's Surgical Pathology Report. On the other hand, Dr. Kho stated that I have heard somebody that [sic] says [sic] there is [sic] a foreign body that goes with the tissues but unluckily I don't know where the rubber was. The trial court deemed vital Batiquin's testimony that when she confronted Dr. Kho regarding the piece of rubber, "Dr. Kho answered that there was rubber indeed but that she threw it away." This statement, the trial court noted, was never denied nor disputed by Dr. Kho, leading it to conclude: There are now two different versions on the whereabouts of that offending rubber (1) that it was sent to the Pathologist in Cebu as testified to in Court by Dr. Kho and (2) that Dr. Kho threw it away as told by her to Defendant. The trial court ruled for Batiquin. The CA reviewed the entirety of Dr. Kho's testimony and, even without admitting the Villegas documentary evidence, deemed Dr. Kho's positive testimony to definitely establish that a piece of rubber was found near Villegas' uterus. Thus, the CA reversed the decision of the trial court. Issue: Whether or not Batiquin can be held liable for negligence Held: YES. The phrase relied upon by the trial court does not negate the fact that Dr. Kho saw a piece of rubber in private Villegas' abdomen, and that she sent it to a laboratory and then to Cebu City for examination by a pathologist. Not even the Pathologist's Report, although devoid of any mention of a piece of rubber, could alter what Dr. Kho saw . Furthermore, Dr. Kho's knowledge of the piece of rubber could not be based on other than first hand knowledge for, as she asserted before the trial court: Q 48 But you are sure you have seen [the piece of rubber]? Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013 A Oh yes. I was not the only one who saw it.

Atty. Jess Lopez

Batiquin emphasized that the Villegas never reconciled Dr. Kho's testimony with Dr. Batiquin's claim on the witness stand that when Dr. Batiquin confronted Dr. Kho about the foreign body, the latter said that there was a piece of rubber but that she threw it away. Although hearsay, Dr. Batiquin's claim was not objected to, and hence, the same is admissible but it carries no probative value. Nevertheless, assuming otherwise, Dr. Batiquin's statement cannot belie the fact that Dr. Kho found a piece of rubber near Villegas' uterus. And even if we were to doubt Dr. Kho as to what she did to the piece of rubber, i.e., whether she threw it away or sent it to Cebu City, we are not justified in distrusting her as to her recovery of a piece of rubber from Villegas' abdomen. While the Batiquin claims that contradictions and falsities punctured Dr. Kho's testimony, a reading of the said testimony reveals no such infirmity and establishes Dr. Kho as a credible witness. Dr. Kho was frank throughout her turn on the witness stand. Furthermore, no motive to state any untruth was ever imputed against Dr. Kho, leaving her trustworthiness unimpaired. The trial court's following declaration shows that while it was critical of the lack of care with which Dr. Kho handled the piece of rubber, it was not prepared to doubt Dr. Kho's credibility, thus only supporting out appraisal of Dr. Kho's trustworthiness. As such, the rule of res ipsa loquitur comes to fore. The doctrine of [r]es ipsa loquitur as a rule of evidence is peculiar to the law of negligence which recognizes that prima facie negligence may be established without direct proof and furnishes a substitute for specific proof of negligence. The doctrine is not a rule of substantive law, but merely a mode of proof or a mere procedural convenience . The rule, when applicable to the facts and circumstances of a particular case, is not intended to and does not dispense with the requirement of proof of culpable negligence on the party charged. It merely determines and regulates what shall be prima facie evidence thereof and facilitates the burden of plaintiff of proving a breach of the duty of due care . The doctrine can be invoked when and only when, under the circumstances involved, direct evidence is absent and not readily available . In the instant case, all the requisites for recourse to the doctrine are present. First, the entire proceedings of the cesarean section were under the exclusive control of Dr. Batiquin. In this light, the Villegas were bereft of direct evidence as to the actual culprit or the exact cause of the foreign object finding its way into Villegas' body, which, needless to say, does not occur unless through the intervention of negligence. Second, since aside from the cesarean section, Villegas underwent no other operation which could have caused the offending piece of rubber to appear in her uterus, it stands to reason that such could only have been a by-product of the cesarean section performed by Dr. Batiquin. Batiquin, in this regard, failed to overcome the presumption of negligence arising from resort to the doctrine of res ipsa loquitur. Dr. Batiquin is therefore liable for negligently leaving behind a piece of rubber in Villegas' abdomen and for all the adverse effects thereof. 11. Garcia-Rueda v. Pascasio, G.R. No. 118141, September 5, 1997 See previous Facts: Florencio V. Rueda, husband of petitioner Leonila Garcia-Rueda, underwent surgical operation at the UST hospital for the removal of a stone blocking his ureter. He was attended by Dr. Domingo Antonio, Jr. who was the surgeon while Dr. Erlinda Balatbat-Reyes was the anaesthesiologist. 6 hours after the surgery, however, Florencio died of complications of unknown cause. Not satisfied with the findings of the hospital, Leonila requested the NBI to conduct an autopsy. The NBI ruled that Florencios death was due to lack of care by the attending physician in administering anaesthesia. The NBI recommended that Dr. Antonio and Dr. Balatbat-Reyes be charged for Homicide through Reckless Imprudence. During the preliminary investigation, an investigative pingpong thereafter transpired where the case was reassigned or transferred several times. Aggrieved, Leonila filed graft charges against the involved prosecutors. The Ombudsman issued the assailed resolution dismissing the complaint. Petitioner now faults the Ombudsman for grave abuse of discretion as the successive transfers from one prosecutor to another were not sufficiently explained in the Resolution of the Ombudsman. Issue: NOT RELATED TO TORTS. But see discussion below. Medical Malpractice with Res Ipsa Loquitur Discussion In order to successfully pursue such a claim, a patient must prove that a health care provider, in most cases a physician, either failed to do something which a reasonably prudent health care provider would have done, or that he or she did something that a reasonably prudent provider would not have done; and that that failure or action caused injury to the patient. Four elements involved in medical negligence cases: duty, breach, injury and proximate causation. In accepting the case, Dr. Antonio and Dr. Reyes in effect represented that, having the needed training and skill possessed by physicians and surgeons practicing in the same field, they will employ such training, care and skill in the treatment of their patients. They have a duty to use at least the same level of care that any other reasonably competent doctor would use to treat a condition under the same circumstances. The breach of these professional duties of skill and care, or their improper performance, by a physician surgeon whereby the patient is injured in body or in health, constitutes actionable 49 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

malpractice. Consequently, in the event that any injury results to the patient from want of due care or skill during the operation, the surgeons may be held answerable in damages for negligence. Moreover, in malpractice or negligence cases involving the administration of anaesthesia, the necessity of expert testimony and the availability of the charge of res ipsa loquitur to the plaintiff, have been applied in actions against anaesthesiologists to hold the defendant liable for the death or injury of a patient under excessive or improper anaesthesia. Essentially, it requires two-pronged evidence: (1) evidence as to the recognized standards of the medical community in the particular kind of case; and (2) a showing that the physician in question negligently departed from this standard in his treatment. Another element in medical negligence cases is causation which is divided into two inquiries : (1) whether the doctors actions in fact caused the harm to the patient; and (2) whether these were the proximate cause of the patients injury. Indeed here, a causal connection is discernible from the occurrence of the victims death after the negligent act of the anaesthesiologist in administering the anaesthesia, a fact which, if confirmed, should warrant the filing of the appropriate criminal case. To be sure, the allegation of negligence is not entirely baseless. Moreover, the NBI deduced that the attending surgeons did not conduct the necessary interview of the patient prior to the operation . It appears that the cause of the death of the victim could have been averted had the proper drug been applied to cope with the symptoms of malignant hyperthermia. Also, we cannot ignore the fact that an antidote was readily available to counteract whatever deleterious effect the anaesthesia might produce. Why these precautionary measures were disregarded must be sufficiently explained. 12. Cruz v. Court of Appeals, 282 SCRA 188 (1997) Facts: Lydia was examined by the Dra. Cruz who found a myoma in her uterus, and scheduled her for a hysterectomy operation on March 1991. Rowena Umali De Ocampo, accompanied her mother to the Perpetual Help Clinic and General Hospital. According to Rowena, she noticed that the clinic was untidy and the window and the floor were very dusty prompting her to ask the attendant for a rag to wipe the window and the floor with. Because of the untidy state of the clinic, Rowena tried to persuade her mother not to proceed with the operation. The following day, before her mother was wheeled into the operating room, Rowena asked Cruz if the operation could be postponed. Lydia informed Rowena that the doctor told her that she must be operated on as scheduled. Rowena and her husband, her sister and 2 aunts waited outside the operating room while Lydia underwent operation. While they were waiting, Dra. Ercillo went out of the operating room and instructed them to buy tagamet ampules which Rowenas sister immediately bought. Dra. Ercillo came out again this time to ask them to buy blood for Lydia. They bought type A blood from the St. Gerald Blood Bank and the same was brought by the attendant into the operating room. After the lapse of a few hours, Cruz informed them that the operation was finished. The operating staff then went inside the doctors clinic to take their snacks. Some 30 minutes after, Lydia was brought out of the operating room in a stretcher and Dr. Cruz asked Rowena and the other relatives to buy additional blood for Lydia. Rowena then noticed her mother, who was attached to an oxygen tank, gasping for breath. The oxygen supply had run out and Rowenas husband together with the driver of Cruz had to go to the San Pablo District Hospital to get oxygen. Lydia was given the fresh supply of oxygen as soon as it arrived. But at around 10:00 P.M. she went into shock and her blood pressure dropped to 60/50. Her unstable condition necessitated her transfer to the San Pablo District Hospital so she could be connected to a respirator and further examined. However, the transfer to the San Pablo District Hospital was without the prior consent neither of Rowena nor of the other relatives present who found out about the intended transfer only when an ambulance arrived to take Lydia to the San Pablo District Hospital. Rowena and her other relatives then boarded a tricycle and followed the ambulance. Upon Lydias arrival at the San Pablo District Hospital, she was wheeled into the operating room and Dra. Cruz and Dra. Ercillo reoperated on her because there was blood oozing from the abdominal incision. The attending physicians summoned Dra. Bartolome Angeles, head of the OB-GYNE Department of San Pablo District Hospital. However, when Dra. Angeles arrived, Lydia was already in shock and possibly dead as her blood pressure was already o/o. While Dra. Cruz was closing the abdominal wall, the patient died. The death certificate states shock as the immediate cause of death and Disseminated Intravascular Coagulation (DIC) as the antecedent cause. Cruz was sued for negligence. MTCC found the ff circumstances as sufficient basis to conclude that she was indeed negligent: (1) clinic was untidy, lack of provision like blood and oxygen to prepare for any contingency that might happen during the operation; (2) the manner and the fact that the patient was brought to the San Pablo District Hospital for reoperation indicates that there was something wrong in the manner in which Dra. Cruz conducted the operation. There was no showing that before the operation, accused Dra. Cruz had conducted a cardio pulmonary clearance or any typing of the blood of the patient; (3) the patients chart which is a public document was not presented because it is only there that we could determine the condition of the patient before the surgery; (4) sister of the deceased wished to postpone the operation but the patient was prevailed upon by Dra. Cruz to proceed with the surgery; (5) with respect to Dra. Lina 50 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

Ercillo, the anaesthesiologist, there is no evidence to indicate that she should be held jointly liable with Dra. Cruz who actually did the operation. RTC reiterated the abovementioned findings. CA echoed similar observations. CA ruled: While we may grant that the untidiness and filthiness of the clinic may not by itself indicate negligence, it nevertheless shows the absence of due care and supervision over her subordinate employees. Did this unsanitary condition permeate the operating room? Were the surgical instruments properly sterilized? Could the conditions in the OR have contributed to the infection of the patient? Only the Cru could answer these, but she opted not to testify. This could only give rise to the presumption that she has nothing good to testify on her defense. The alleged unverified statement of the prosecution witness remains unchallenged and unrebutted. Likewise undisputed were the ff: (1) that the accused asked the patients relatives to buy Tagamet capsules while the operation was already in progress; (2) that after an hou r, they were also asked to buy type A blood for the patient; that after surgery, they were again asked to procure more type A blood, but such was not anymore available from the source; (3) that the oxygen given to the patient was empty; and (4) that the son- in-law of the patient, together with a driver of Cruz, had to rush to the San Pablo City District Hospital to get the much-needed oxygen. All these conclusively show that the petitioner had not prepared for any unforeseen circumstances before going into the first surgery, which was not emergency in nature, but was elective or pre-scheduled; she had no ready antibiotics, no prepared blood, properly typed and cross-matched, and no sufficient oxygen supply. Issue: Whether or not Cruzs conviction of the crime of reckless imprudence resulting in homicide, arising from an alleged medical malpractice is supported by the evidence on record. Held: NO. Elements of reckless imprudence are: (1) that the offender does or fails to do an act; (2) that the doing or the failure to do that act is voluntary; (3) that it be without malice; (4) that material damage results from the reckless imprudence; and (5) that there is inexcusable lack of precaution on the part of the offender, taking into consideration his employment or occupation, degree of intelligence, physical condition, and other circumstances regarding persons, time and place. Whether or not a physician has committed an inexcusable lack of precaution in the treatment of his patient is to be determined according to the standard of care observed by other members of the profession in good standing under similar circumstances bearing in mind the advanced state of the profession at the time of treatment or the present state of medical science. In accepting a case, a doctor has a duty to use at least the same level of care that any other reasonably competent doctor would use to treat a condition under the same circumstances. It is in this aspect of medical malpractice that expert testimony is essential to establish not only the standard of care of the profession but also that the physicians conduct in the treatment and care falls below such standard. Expert testimony is usually necessary to support the conclusion as to causation. The Court noted the absence of any expert testimony of the matter of the standard of care employed by other physicians of good standing in the conduct of similar operations. The prosecutions expert witnesses in the persons of Dr. Floresto Arizala and Dr. Nieto Salvador, Jr. of the NBI only testified as to the possible cause of death but did not venture to illuminate the court on the matter of the standard of care that Cruz should have exercised. While it may be true that the circumstances pointed out by the courts below seemed beyond cavil to constitute reckless imprudence on the part of the surgeon, this conclusion is still best arrived at not through the educated surmises nor conjectures of laymen, including judges, but by the unquestionable knowledge of expert witnesses. For whether a physician or surgeon has exercised the requisite degree of skill and care in the treatment of his patient is, in the generality of cases, a matter of expert opinion. When the qualifications of a physician are admitted , as in the instant case, there is an inevitable presumption that in proper cases he takes the necessary precaution and employs the best of his knowledge and skill in attending to his clients, unless the contrary is sufficiently established. This presumption is rebuttable by expert opinion, which is sadly lacking in the case at bench. Even granting arguendo that the inadequacy of the facilities and untidiness of the clinic; the lack of provisions; the failure to conduct pre-operation tests on the patient; and the subsequent transfer of Lydia to the San Pablo Hospital and the reoperation performed on her by Cruz do indicate, even without expert testimony, that Cruz was recklessly imprudent in the exercise of her duties as a surgeon, no cogent proof exists that any of these circumstances caused Lydias death. The fourth element of reckless imprudence : that the injury to the person or property was a consequence of the reckless imprudence is lacking. In litigations involving medical negligence, the plaintiff has the burden of establishing physicians negligence and for a reasonable conclusion of negligence, there must be proof of breach of duty on the part of the surgeon as well as a causal connection of such breach and the resulting death of his patient. In order that there may be a recovery for an injury the 51 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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negligence must be the proximate cause of the injury . For, negligence, no matter in what it consists, cannot create a right of action unless it is the proximate cause of the injury complained of. Proximate cause of an injury is 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. The testimonies of both witness doctors establish hemorrhage or hemorrhagic shock as the cause of death. However, as likewise testified to by the expert witnesses in open court, hemorrhage or hemorrhagic shock during surgery may be caused by several different factors. On the other hand, defense witness, Dr. Bu C. Castro said hemorrhage due to DIC cannot be prevented, it will happen to anyone, anytime. He testified further that the cause of death was dissimulated Intra Vascular Coagulation or the DIC, which resulted to hemorrhage or bleedings and that there is no fault on the part of the surgeon. In totality, the findings of all 3 doctors do not preclude the probability that DIC caused the hemorrhage and consequently, Lydias death. DIC which is a clotting defect creates a serious bleeding tendency and when massive DIC occurs as a complication of surgery leaving raw surface, major hemorrhage occurs. Expert testimonies rendered by both prosecution and defense witnesses substantiate rather than contradict petitioners allegation that the cause of Lydias death was DIC, which as attested t o by an expert witness, cannot be attributed to the petitioners fault or negligence. The probability that Lydias death was caused by DIC was unrebutted during trial and has engendered in the mind of this Court a reasonable doubt as to the petitioners guilt. Nevertheless, this Court finds Cruz civilly liable for the death of Lydia Umali, for while a conviction of a crime requires proof beyond reasonable doubt, only a preponderance of evidence is required to establish civil liability. For insufficiency of evidence this Court was not able to render a sentence of conviction but it is not blind to the reckless and imprudent manner in which the petitioner carried out her duties. Dra. Cruz was acquitted of the crime of reckless imprudence resulting in homicide but was ordered to pay the heirs of Umali 50,000 as civil liability + moral and exemplary damages. 13. Ramos v. Court of Appeals, 321 SCRA 584 (1999) Facts: Erlinda Ramos was experiencing discomfort due to pains allegedly caused by the presence of a stone in her gall bladder. She sought professional advice which recommended that she undergo an operation for the removal of a stone in her gall bladder. She underwent a series of tests and was found fit for surgery. They eventually met with Dr. Hozaka, wherein they agreed on the date of operation at the Delos Santos Medical Center. At the day of the operation, Erlinda was being prepared for the operation. Along with her is her sister-in-law, Herminda Cruz for moral support. When Erlinda was taken to the operating room, several nurses and Dr. Gutierrez attended to her. Herminda was allowed to stay in the operating room. Dr. Gutierrez reached a phone to look for Dr. Hosaka who was not yet in. Erlinda became irritable due to the delay. After 2-3 hours, Dr. Hosaka finally arrived. Eventually the operation started. According to Hermina (who was in the operating room), she saw Dr. Gutierrez intubating the hapless patient (Erlinda). She heard Erlinda say ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan. Because of that, Hermina focused on what Dr. Gutierrez was doing. She eventually noticed bluish discoloration of the nailbeds on the left hand of Erlinda. Dr. Hosaka approached Erlinda and called for Dr. Calderon, another anaesthiologist. Thereafter, the patient was placed in a trendelenburg position. Eventually the patient was taken to the ICU wherein Erlinda stayed there for a month. After 4 months, the patient was released from the hospital. However, she was in a comatose condition and suffered brain damage due to the lack of oxygen, and was in constant need of medical attention. Because of these, they incurred medical expenses. Petitioners filed a complaint for damages against herein respondents alleging neglicence in the management and care of Erlina Ramos. The RTC ruled in favor of herein petitioners. The CA however reversed and ruled in favor of private respondents. Petitioners appealed. Issue: (1) Whether Drs. Hosaka & Gutierrez are liable for negligence. (2) Whether res ipsa loquitur applies Held: YES. Res ipsa loquitur is a Latin phrase which literally means "the thing or the transaction speaks for itself." The phrase "res ipsa loquitur'' is a maxim for the rule that the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiff's prima faciecase, and present a question of fact for defendant to meet with an explanation. Where the thing which caused the injury complained of is shown to be under the management of the defendant or his servants and the accident is such as in ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from or was caused by the defendant's want of care. It is simply a recognition of the postulate that, as a matter of common knowledge and experience, the very nature of certain types of occurrences may justify an inference of negligence on the part of the person who controls the instrumentality causing the injury in the absence of some explanation by the defendant who is charged with negligence. It is grounded in the superior logic of ordinary human experience and on the basis of such experience or 52 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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common knowledge, negligence may be deduced from the mere occurrence of the accident itself. Hence, res ipsa loquitur is applied in conjunction with the doctrine of common knowledge. However, much has been said that res ipsa loquitur is not a rule of substantive law and, as such, does not create or constitute an independent or separate ground of liability. Instead, it is considered as merely evidentiary or in the nature of a procedural rule. It is regarded as a mode of proof, or a mere procedural of convenience since it furnishes a substitute for, and relieves a plaintiff of, the burden of producing specific proof of negligence. In other words, mere invocation and application of the doctrine does not dispense with the requirement of proof of negligence. It is simply a step in the process of such proof, permitting the plaintiff to present along with the proof of the accident, enough of the attending circumstances to invoke the doctrine, creating an inference or presumption of negligence, and to thereby place on the defendant the burden of going forward with the proof. Still, before resort to the doctrine may be allowed, the following requisites must be satisfactorily shown: (1) The accident is of a kind which ordinarily does not occur in the absence of someone's negligence; (2) It is caused by an instrumentality within the exclusive control of the defendant or defendants; and (3) The possibility of contributing conduct which would make the plaintiff responsible is eliminated. In the above requisites, the fundamental element is the "control of instrumentality" which caused the damage. Such element of control must be shown to be within the dominion of the defendant. In order to have the benefit of the rule, a plaintiff, in addition to proving injury or damage, must show a situation where it is applicable, and must establish that the essential elements of the doctrine were present in a particular incident. Medical malpractice cases do not escape the application of this doctrine. Thus, res ipsa loquitur has been applied when the circumstances attendant upon the harm are themselves of such a character as to justify an inference of negligence as the cause of that harm. Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it does not automatically apply to all cases of medical negligence as to mechanically shift the burden of proof to the defendant to show that he is not guilty of the ascribed negligence . The doctrine is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of each case. It is generally restricted to situations in malpractice cases where a layman is able to say , as a matter of common knowledge and observation, that the consequences of professional care were not as such as would ordinarily have followed if due care had been exercised. A distinction must be made between the failure to secure results, and the occurrence of something more unusual and not ordinarily found if the service or treatment rendered followed the usual procedure of those skilled in that particular practice. It must be conceded that the doctrine of res ipsa loquitur can have no application in a suit against a physician or surgeon which involves the merits of a diagnosis or of a scientific treatment. The physician or surgeon is not required at his peril to explain why any particular diagnosis was not correct, or why any particular scientific treatment did not produce the desired result. Thus, res ipsa loquitur is not available in a malpractice suit if the only showing is that the desired result of an operation or treatment was not accomplished. During the administration of anesthesia and prior to the performance of cholecystectomy she suffered irreparable damage to her brain. Thus, without undergoing surgery, she went out of the operating room already decerebrate and totally incapacitated. Obviously, brain damage, which Erlinda sustained, is an injury which does not normally occur in the process of a gall bladder operation. In fact, this kind of situation does not in the absence of negligence of someone in the administration of anesthesia and in the use of endotracheal tube. Normally, a person being put under anesthesia is not rendered decerebrate as a consequence of administering such anesthesia if the proper procedure was followed . Furthermore, the instruments used in the administration of anesthesia, including the endotracheal tube, were all under the exclusive control of private respondents, who are the physicians-in-charge. Likewise, Erlinda could not have been guilty of contributory negligence because she was under the influence of anesthetics which rendered her unconscious. Upon these facts and under these circumstances the Court would be able to say, as a matter of common knowledge and observation, if negligence attended the management and care of the patient. Moreover, the liability of the physicians and the hospital in this case is not predicated upon an alleged failure to secure the desired results of an operation nor on an alleged lack of skill in the diagnosis or treatment as in fact no operation or treatment was ever performed on Erlinda. Thus, upon all these initial determination a case is made out for the application of the doctrine of res ipsa loquitur. The court holds that Dr. Hosaka & Gutierre were unable to disprove the presumption of negligence on their part in the care of Erlinda and their negligence was the proximate cause of her piteous condition. The court is inclined to believe Ramos' stand and after the evidence and testimony presented that it was the faulty intubation which was the proximate cause of Erlinda's comatose condition. 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. An injury or damage is proximately caused by an act or a failure to act, whenever it appears from the evidence in the case, that the act or omission played a substantial part in bringing about or actually causing the injury or damage; and that the injury or damage was 53 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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either a direct result or a reasonably probable consequence of the act or omission. It is the dominant, moving or producing cause. Here, due to the faulty intubation conducted, the failure to observe proper medical procedure, failure to verify and conduct an evaluation of the patient for the administration of the intubation (so as to determine the anatomic variations in patients neck and oral area), the court holds Dr. Gutierrez liable. The same goes for Dr. Hozaka as the head of the surgeon team (or as the court would call it, the captain of the ship) It is the surgeons responsibility to see to i t that those under him perform their task in the proper manner. The same goes for the hospital. DLSMC, apart from a general denial of its responsibility over the physicians, failed to adduce evidence showing that it exercised the diligence of a good father of a family in the hiring and supervision of the latter. It failed to adduce evidence with regard to the degree of supervision which it exercised over its physicians. 14. Ramos v. Court of Appeals, 380 SCRA 467 (2002) Facts: Sometime in 1985, Erlinda Ramos, after seeking professional medical help, was advised have her gallstones removed. She was referred to Dr. Hosaka, a surgeon, who agreed to perform the operation on her. The operation was scheduled for June 17, 1985 at 9:00 AM at De Los Santos Medical Center (DLSMC). Since neither Erlinda nor her husband Rogelio, knew of any anesthesiologist, Dr. Hosaka recommended to them the services of Dr. Gutierrez. By 7:30 AM, Erlinda was already being prepared for operation. Upon the request of Erlinda, her sister-in-law, Herminda Cruz, who was then Dean of the College of Nursing at the Capitol Medical Center, was allowed to accompany her inside the operating room. Dr. Hosaka finally arrived at the hospital at around 12:10 in the afternoon, or more than 3 hours after the scheduled operation. As Dr. Gutierrez was having a hard time intubating Erlinda, Cruz noticed a bluish discoloration of Erlindas nailbeds on her left hand. Cruz then heard Dr. Hosaka instruct someone to call Dr. Calderon, another anesthesiologist. When he arrived, Dr. Calderon attempted to intubate the patient. The nailbeds of the patient remained bluish, thus, she was placed in a trendelenburg position a position where the head of the patient is placed in a position lower than her feet. She went out of the OR to inform the husband that the operation was not going well. At almost 3:00 PM, she saw Erlinda being wheeled to ICU. The doctors explained to Rogelio that his wife had bronchospasm. Erlinda stayed in the ICU for a month. She was released from the hospital only 4 months later or on November 15, 1985. Since the ill-fated operation, Erlinda remained in comatose condition until she died on August 3, 1999. Ramos filed a complaint for damages due to negligence in the RTC. RTC found the doctors and the DLSMC liable. On appeal, CA reversed. Upon petitioner for review before the SC, doctors and hospital were held liable. They now seek reconsideration. The Philippine College of Surgeons also filed a Petition-in-Intervention claiming that the SC erred in using the captain of the ship doctrine to hold Hosaka liable. On March 2001, oral arguments were heard. Also present were various doctors from public and private institutions serving as amicii curiae. Issue: (1) Was Dr. Gutierez negligent and whether it was the faulty intubation which was the proximate cause of Erlindas coma? (2) Whether Dr. Hosaka can be held liable by virtue of the Captain of the Ship doctrine. (3) Whether DLSMC is solidarily responsible with the doctors. Held: (1) YES. It has been sufficiently established that she failed to exercise the standards of care in the administration of anesthesia on a patient. She did not perform a preoperative evaluation of the patient before administering anaesthesia. Particularly, she did not check the patients airway. As she herself admitted, she saw Erlinda for the first time on the day of the operation itself, one hour before the scheduled operation. The injury incurred by Erlinda does not normally happen absent any negligence in the administration of anesthesia and in the use of an endotracheal tube. Upon these facts and under these circumstances, a layman would be able to say, as a matter of common knowledge and observation, that the consequences of professional treatment were not as such as would ordinarily have followed if due care had been exercised. Thus, res ipsa loquitur is applicable. (2) YES. That there is a trend in American jurisprudence to do away with the Captain-of-the-Ship doctrine does not mean that this Court will ipso facto follow said trend. Due regard for the peculiar factual circumstances obtaining in this case justify the application of the Captain-of-the-Ship doctrine. From the facts on record it can be logically inferred that Dr. Hosaka exercised a certain degree of, at the very least, supervision over the procedure then being performed on Erlinda. (1) He recommended Gutierrez thereby representing to Ramos that she possessed the necessary competence and skills. (2) He was the attending physician of Erlinda and gave instructions to call another anaesthesiologist to help Erlinda. (3) Drs. Hosaka and Gutierrez worked as a team. Their work cannot be placed in separate watertight compartments because their duties intersect with each other. 54 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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Moreover, Dr. Hosakas irresponsible conduct of arriving ver y late for the scheduled operation of petitioner Erlinda is violative, not only of his duty as a physician to serve the interest of his patients with the greatest solicitude, giving th em always his best talent and skill, but also of Article 19 CC which r equires a person, in the performance of his duties, to act with justice and give everyone his due. (3) NO. There is no employer-employee relationship (see 4 fold test in labor) between DLSMC and Drs. Gutierrez and Hosaka which would hold DLSMC solidarity liable under Art. 2180. First, a hospital does not hire or engage the services of a consultant, but rather, accredits the latter and grants him or her the privilege of maintaining a clinic and/or admitting patients in the hospital upon a showing by the consultant that he or she possesses the necessary qualifications. Second, it is not the hospital but the patient who pays the consultants fee for services rendered by the latter. Third, a hospital does not dismiss a consultant; instead, the latter may lose his or her accreditation or privileges granted by the hospital. Fourth, when a doctor refers a patient for admission in a hospital, it is the doctor who prescribes the treatment to be given to said patient. The hospitals obligation is limited to providing the patient with the preferred room accommodation, the nutritional diet and medications prescribed by the doctor, the equipment and facilities necessary for the treatment of the patient, as well as the services of the hospital staff who perfor m the minist erial tasks of ensuring that the doctors orders are carried out strictly. In line with this, no evidence was adduced to show that the injury suffered by petitioner Erlinda was due to a failure on the part of respondent DLSMC to provide for hospital facilities and staff necessary for her treatment. 15. Reyes v. Sisters of Mercy Hospital, 341 SCRA 760 (2000) Facts: Five days before Jorge Reyes death on January 8, 1987, Jorge had been suffering from a recurring fever with chills. On that day, he was taken to the Mercy Community Clinic. He was attended to by respondent Dr. Marlyn Rico, who gave Jorge a physical examination and took his medical history. Believing that Jorge could be suffering from Typhoid fever, as this was then prevalent in their locality, Dr. Rico ordered a Widal Test a standard test for typhoid fever. Other tests were made. From the test results, Dr. Rico concluded that Jorge was positive for typhoid fever. As her shift was only up to 5:00 p.m., Dr. Rico indorsed Jorge to respondent Dr. Marvie Blanes. Dr. Marvie Blanes attended to Jorge at around 6PM. She also took Jorges history and gave him a physical examination. Like Dr. Rico, her impression was that Jorge had typhoid fever. Antibiotics being the accepted treatment for typhoid fever, she ordered that a compatibility test with the antibiotic chloromycetin be done on Jorge. Said test was administered by nurse Josephine Pagent. As no adverse effects were observed, Dr. Blanes ordered the first 500mg of said antibiotic to be administered on Jorge at around 9:00 p.m. A second dose was administered on Jorge about three hours later just before midnight. At around 1:00 a.m the next day, Jorge Reyes condition worsened as he experienced severe nausea and convulsions. When he regained consciousness, the patient was asked by Dr. Blanes whether he had a previous heart ailment or had suffered from chest pains in the past. Jorge replied he did not. A few minutes later, the convulsions came back and he died at around 2:00am. The cause of his death was Ventricular Arrythemia Secondary to Hyperpyrexia and typhoid fever. Reyes family thus filed a complaint for damages against Sisters of Mercy et al. They basically claim that Jorge did not die of typhoid fever. Rather, they claim that it was due to the wrongful administration of chloromycetin. The parties presented their own expert witnesses: for the Reyes, Dr. Apolinar Vacalares, while for the hospital, Dr. Gotiong and Dr. Panopio. Issue: Whether or not the hospital and its physicians are liable for medical malpractice. Held: NO. In the present case, there is no doubt that a physician-patient relationship existed between respondent doctors and Jorge Reyes. Respondents were thus duty-bound to use at least the same level of care that any reasonably competent doctor would use to treat a condition under the same circumstances. It is breach of this duty which constitutes actionable malpractice. As to this aspect of medical malpractice, the determination of the reasonable level of care and the breach thereof, expert testimony is essential. Inasmuch as the causes of the injuries involved in malpractice actions are determinable only in the light of scientific knowledge, it has been recognized that expert testimony is usually necessary to support the conclusion as to causation. However, there are some cases wherein there is no necessity for expert testimony: when Res Ipsa Loquitur applies. As held in Ramos: Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done a negligent act. But, when the doctrine of res ipsa loquitor is availed by the plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the proof of negligence. The reason is that the general rule on the necessity of expert testimony applies only to such matters clearly within the domain of medical science, and not to matters that are within the common knowledge of mankind which may be testified to by anyone familiar with the facts.

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Atty. Jess Lopez

Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund of common knowledge can determine the proper standard of care. When the doctrine is appropriate, all that the patient must do is prove a nexus between the particular act or omission complained of and the injury sustained while under the custody and management of the defendant without need to produce expert medical testimony to establish the standard of care. Resort to res ipsa loquitor is allowed because there is no other way, under usual and ordinary conditions, by which the patient can obtain redress for injury suffered by him. Nonetheless, Res Ipsa Loquitur DOES NOT APPLY in this case; thus expert witness is necessary. Petitioners asserts that the doctrine of res ipsa loquitur applies to the present case because Jorge Reyes was merely experiencing fever and chills for 5 days and was fully conscious, coherent, and ambulant when he went to the hospital. Yet, he died after only ten hours from the time of his admission. Petitioners contend that all requisites for the application of res ipsa loquitur were present. However, respondents alleged failure to observe due care was not immediately apparent to a layman so as to justify application of res ipsa loquitur. The question required expert opinion on the alleged breach by respondents of the standard of care required by the circumstances. Furthermore, on the issue of the correctness of her diagnosis, no presumption of negligence can be applied to Dr. Marlyn Rico. As held in Ramos, Res Ipsa Loquitur is generally restricted to situations in malpractice cases where a layman is able to say, as a matter of common knowledge and observation, that the consequences of professional care were not as such as would ordinarily have followed if due care had been exercised. Thus, it DOES NOT APPLY when what is at issue is BEYOND AN ORDINARY PERSONS COMMON KNOWLEDGE: i.e. when the issue revolves around the merits of a diagnosis or of a scientific treatment. Petitioners contend that the doctors erroneously applied the Widal test and in administering the antibiotic chloromycetin. Petitioners presented the testimony of Dr. Apolinar Vacalares, Chief Pathologist of the Northern Mindanao Training Hospital, Cagayan de Oro City, who performed an autopsy on the body of Jorge Reyes. Dr. Vacalares testified that, based on his findings during the autopsy, Jorge Reyes did not die of typhoid fever but of something undetermined, which could be due to allergic reaction or chloromycetin overdose. We are not persuaded. First. While petitioners presented Dr. Apolinar Vacalares as an expert witness, we do not find him to be so as he is not a specialist on infectious diseases like typhoid fever. Second. On the other hand, the 2 doctors presented by respondents clearly were experts on the subject. They vouched for the correctness of Dr. Marlyn Ricos diagnosis. Dr. Peter Gotiong is a diplomate whose specialization is infectious diseases. Also, he had already treated over a thousand cases of typhoid fever. According to him, when a case of typhoid fever is suspected, the Widal test is normally used, and if the 1:320 results of the Widal test on Jorge Reyes had been presented to him along with the patients history, his impression would also be that the patient was suffering from typhoid fever. As to the treatment of the disease, he stated that chloromycetin was the drug of choice. He also explained that despite the measures taken by respondent doctors and the intravenous administration of two doses of chloromycetin, complications of the disease could not be discounted. Also, he noted that since the toxic effect of typhoid fever may lead to meningitis, Dr. Vacalares autopsy should have included an examination of the brain. As regards Dr. Vacalares finding during the autopsy that the deceaseds gastro-intestinal tract was normal, Dr. Rico explained that, while hyperplasia in the payers patches or layers of the small intestines is present in typhoid fever, the same may not always be grossly visible as they may be microscopic. Respondents also presented the testimony of Dr. Ibarra T. Panopio who is also a big time doctor/ pathologist. He stated that, he recognized that the Widal test is used for typhoid patients, although he did not encourage its use. Basically, he corroborated all of Dr. Gotiongs statements. Here, Dr. Marlyn Rico did not depart from the reasonable standard recommended by the experts as she in fact observed the due care required under the circumstances . Though the Widal test is not conclusive, it remains a standard diagnostic test for typhoid fever and, in the present case, greater accuracy through repeated testing was rendered unobtainable by the early death of the patient. The results of the Widal test and the patients history of fever with chills for five days, taken with the fact that typhoid fever was then prevalent as indicated by the fact that the clinic had been getting about 15 to 20 typhoid cases a month, were sufficient to give upon any doctor of reasonable skill the impression that Jorge Reyes had typhoid fever. The burden of proving that Jorge Reyes was suffering from any other illness rested with the petitioners . As they failed to present expert opinion on this, preponderant evidence to support their contention is clearly absent. Third. Petitioners contend that respondent Dr. Marvie Blanes, who took over from Dr. Rico, was negligent in ordering the intravenous administration of two doses of 500 milligrams of chloromycetin at an interval of less than three hours. Petitioners claim that Jorge Reyes died of anaphylactic shock or possibly from overdose as the second dose should have been administered five to six hours after the first, per instruction of Dr. Marlyn Rico. However, according to medical books: The dosage likewise including the first administration of five hundred milligrams (500 mg.) at around nine oclock 56 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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in the evening and the second dose at around 11:30 the same night was still within medically acceptable limits, since the recommended dose of chloromycetin is one (1) gram every six (6) hours . Fourth. Petitioners correctly observe that the medical profession is one which, like the business of a common carrier, is affected with public interest. Moreover, they assert that since the law imposes upon common carriers the duty of observing extraordinary diligence in the vigilance over the goods and for the safety of the passengers, physicians and surgeons should have the same duty toward their patients. The practice of medicine is a profession engaged in only by qualified individuals . It is a right earned through years of education, training, and by first obtaining a license from the state through professional board examinations. Such license may, at any time and for cause, be revoked by the government. In addition to state regulation, the conduct of doctors is also strictly governed by the Hippocratic Oath. Given these safeguards, there is no need to expressly require of doctors the observance of extraordinary diligence. As it is now, the practice of medicine is already conditioned upon the highest degree of diligence. And, as we have already noted, the standard contemplated for doctors is simply the reasonable average merit among ordinarily good physicians. 16. Professional Services, Inc., v. Agana, 513 SCRA 478 (2007) Facts: In April 1984, Natividad Agana was rushed to the Medical City General Hospital (Med City) because of difficulty of bowel movement and bloody anal discharge. After a series of medical examinations, Dr. Ampil, diagnosed her to be suffering from cancer of the sigmoid. Ampil, assisted by the medical staff of the Med City, surgery on Natividad. As the cancer spread to her left ovary, Dr. Fuentes was asked to perform hysterectomy on her. After Dr. Fuentes had completed the hysterectomy, Ampil took over and closed the incision. The operation appears to be flawed. The Record of Operation dated April 11, 1984, the attending nurses entered these remarks: sponge count lacking 2 and announced to surgeon searched (sic) done but to no avail continue for closure. After a couple of days, Natividad complained of excruciating pain in her anal region. She consulted both Ampil and Fuentes about it. They told her that the pain was the natural consequence of the surgery. Ampil then recommended that she consult an oncologist to examine the cancerous nodes which were not removed during the operation. So, she went to get further treatment in the States but she was told she was free of cancer. However, she was still suffering from pains. Two weeks after her return, her daughter found a piece of gauze protruding from her vagina. Upon being informed about it, Dr. Ampil proceeded to her house where he managed to extract by hand a piece of gauze measuring 1.5 inches in width. He then assured her that the pains would soon vanish. Instead, the pains intensified, prompting Natividad to seek treatment at the Polymedic General Hospital. While confined there, Dr. Gutierrez detected the presence of another foreign object in her vagina a foul-smelling gauze measuring 1.5 inches in width which badly infected her vaginal vault. causing stool to excrete through her vagina. On November 1984, Natividad and her husband filed with the RTC Quezon City a complaint for damages against the Professional Services, Inc. (PSI), owner of the Med Cit, Ampil, and Fuentes. They alleged that the latter are liable for negligence for leaving 2 pieces of gauze inside Natividads body and malpractice for concealing their acts of negligence. Enrique Agana also filed with the PRC an administrative complaint for gross negligence and malpractice against Dr. Ampil and Dr. Fuentes. She died during the pendency of the case. In 1993, the RTC rendered its Decision in favor of the Aganas, finding PSI, Dr. Ampil and Dr. Fuentes liable for negligence and malpractice. They were held solidarily liable. On appeal, Fuentes was exonerated but Ampil was required to reimburse all payments that PSI will make to the Aganas. Meanwhile, on January 1995, the PRC Board of Medicine rendered its Decision dismissing the case against Fuentes. The Board held that the prosecution failed to show that Fuentes was the one who left the 2 pieces of gauze inside Natividads body and that he concealed such fact from Natividad. Issue: (1) Whether Ampil is liable for negligence and medical malpractice. (2) Whether Fuentes is liable for the same. (3) Whether PSI is liable. Held: (1) YES. This is a clear case of medical malpractice or more appropriately, medical negligence. To successfully pursue this kind of case, a patient must only prove that a health care provider either failed to do something which a reasonably prudent health care provider would have done, or that he did something that a reasonably prudent provider would not have done; and that failure or action caused injury to the patient. Simply put, the elements are duty, breach, injury and proximate causation. Ampil, as the lead surgeon, had the duty to remove all foreign objects, such as gauzes, from Natividads body before closure of the incision. When he failed to do so, it was his duty to inform Natividad about it. Ampil breached both duties. Such breach caused injury to Natividad, necessitating her further examination by American doctors and another surgery. That Ampils negligence is the proximate cause of Natividads injury could be traced from his act of closing the incision despite the information given by the attending nurses that two pieces of gauze were still missing. That they were later on extracted from Natividads vagina established the causal link between Ampils negligence and the injury. 57 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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And what further aggravated such injury was his deliberate concealment of the missing gauzes from the knowledge of Natividad and her family. (2) NO. Aganas assailed the dismissal by the trial court of the case against Fuentes on the ground that it is contrary to the doctrine of res ipsa loquitur. According to them, the fact that the 2 pieces of gauze were left inside Natividads body is a prima facie evidence of Dr. Fuentes negligence. SC not convinced. Literally, res ipsa loquitur means "the thing speaks for itself." It is the rule that the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiffs prima facie case, and present a question of fact for defendant to meet with an explanation. Stated differently, where the thing which caused the injury, without the fault of the injured, is under the exclusive control of the defendant and the injury is such that it should not have occurred if he, having such control used proper care, it affords reasonable evidence, in the absence of explanation that the injury arose from the defendants want of care, and the burden of proof is shifted to him to establish that he has observed due care and diligence. From the foregoing statements of the rule, the requisites for the applicability of the doctrine of res ipsa loquitur are: (1) the occurrence of an injury; (2) the thing which caused the injury was under the control and management of the defendant; (3) the occurrence was such that in the ordinary course of things, would not have happened if those who had control or management used proper care; and (4) the absence of explanation by the defendant. Of the foregoing requisites, the most instrumental is the control and management of the thing which caused the injury. We find the element of control and management of the thing which caused the injury to be wanting. Hence, the doctrine will not lie. Under the Captain of the Ship doctrine, the opera ting surgeon is the person in complete charge of the surgery room and all personnel connected with the operation. Their duty is to obey his orders. As stated before, Ampil was the lead surgeon. In other words, he was the Captain of the Ship. Ampil and not Fuentes had control. In fact, after Fuentes performed the hysterectomy, Ampil considered his work to be in order and proceeded with closing Natividad up. (3) YES. It was held that Ramos v. Court of Appeals that for purposes of apportioning responsibility in medical negligence cases, an employer-employee relationship in effect exists between hospitals and their attending and visiting physicians. Its liability is also anchored upon the agency principle of apparent authority or agency by estoppel and the doctrine of corporate negligence which have gained acceptance in the determina tion of a hospitals liability for negligent acts of health professionals. In the present case, it was duly established that PSI operates the Med City for the purpose and under the concept of providing comprehensive medical services to the public. Accordingly, it has the duty to exercise reasonable care to protect from harm all patients admitted into its facility for medical treatment. Unfortunately, PSI failed to perform such duty. 17. Cantre v. Go, G.R. No. 160889, April 27, 2007 Facts: Dr. Milagros L. Cantre is a specialist in OB-GYNE at the Dr. Jesus Delgado Memorial Hospital. She was the attending physician of Nora S. Go, who was admitted at the said hospital. At 1:30 a.m. Nora gave birth to her 4th child, a baby boy. However, at around 3:30 a.m., Nora suffered profuse bleeding inside her womb due to some parts of the placenta which were not completely expelled from her womb after delivery. Nora suffered hypovolemic shock, resulting in a drop in her blood pressure to 40 over 0. Her blood pressure wa s frequently monitored with the use of a sphygmomanometer. While Cantre was massaging Noras uterus for it to contract and stop bleeding, she ordered a droplight to warm Nora and her baby. While in the recovery room, her husband, John David Z. Go noticed a fresh gaping wound 2.5 x 3.5 inches in the inner portion of her left arm, close to the armpit. He asked the nurses what caused the injury. He was informed it was a burn. Noras injury was referred to a plastic surgeon for skin grafting. However, Noras arm would never be the same. Aside from the unsightly mark, the pain in her left arm remains. When sleeping, she has to cradle her wounded arm. Her movements now are also restricted. Her children cannot play with the left side of her body as they might accidentally bump the injured arm, which aches at the slightest touch. Therefore, spouses filed a complaint for damages against Cantre, Dr. Abad (medical director), and the hospital. Issue: (1) Whether additional exhibits are admissible in evidence. (2) Whether Cantre is liable for the injury suffered by Nora Go. Held: (1) YES. The questioned exhibits consist mostly of Noras medical records, which were produced by the hospital during trial pursuant to a subpoena duces tecum. Cantres counsel admitted the existence of the same when they were formally offered for admission by the trial court. In any case, given the particular circumstances of this case, a ruling on 58 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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the negligence of Cantre may be made based on the res ipsa loquitur doctrine even in the absence of such additional exhibits. (2) YES. The doctrine of res ipsa loquitur allows the mere existence of an injury to justify a presumption of negligence on the part of the person who controls the instrument causing the injury , provided that the following requisites concur: (1) The accident is of a kind which ordinarily does not occur in the absence of someones negligence; (2) It is caused by an instrumentality within the exclusive control of the defendant or defendants; and (3) The possibility of contributing conduct which would make the plaintiff responsible is eliminated. First, the gaping wound on Noras arm is certainly not an ordinary occurrence in the act of delivering a baby , far removed as the arm is from the organs involved in the process of giving birth. Such injury could not have happened unless negligence had set in somewhere. Second, whether the injury was caused by the droplight or by the blood pressure cuff is of no moment. Both instruments are deemed within the exclusive control of the physician in charge under the captain of the ship doctrine. This doctrine holds the surgeon in charge of an operation liable for the negligence of his assistants during the time when those assistants are under the surgeons control. In this particular case, it can be logically inferred that Cantre, the senior consultant in charge during the delivery of Noras baby, exercised control over the assistants assigned to both the use of the droplight and the taking of Noras blood pressure. Hence, the use of the droplight and the blood pressure cuff is also within Cantres exclusive control. Third, the gaping wound on Noras left arm, by its very nature and considering her condition, could only be caused by something external to her and outside her control as she was unconscious while in hypovolemic shock. Hence, Nora could not, by any stretch of the imagination, have contributed to her own injury. Cantres defense that Noras wound was caused not by the droplight but by the constant taking of her blood pressure, ev en if the latter was necessary given her condition, does not absolve her from liability. As testified to by the medico-legal officer, Dr. Arizala, Jr., the medical practice is to deflate the blood pressure cuff immediately after each use. Otherwise, the inflated band can cause injury to the patient similar to what could have happened in this case. Thus, if Noras wound was caused by the blood pressure cuff, then the taking of Noras blood pressure must have been done so negligently as to have inflicted a gaping wound on her arm, for which petitioner cannot escape liability under the captain of the ship doctrine. Further, petitioners argument that the failed plastic surgery was not intended as a cosmetic procedure, but rather as a measure to prevent complication does not help her case. It does not negate negligence on her part. Based on the foregoing, the presumption that Cantre was negligent in the exercise of her profession stands unrebutted. (ii) Respondeat superior

1. Castilex Industrial Corporation v. Vasquez, 321 SCRA 393 (1999) Facts: At around 1:30 to 2:00 am, Vasquez was driving a Hondo motorcycle around Fuente Osmena Rotunda, following the normal flow of traffic but without a helmet and goggles, and carrying only a Students Permit to Drive. Abad was a manager of Castilex, the registered owner of a Toyota Hi-Lux Pickup. He drove the company car out of a parking lot, and made a shortcut against the flow of the traffic. The 2 vehicles collided, causing severe injuries to Vasquez. Abad brought him to the Southern Islands Hospital, and later to the Cebu Doctors Hospital. Vasquez died. Abad signed an acknowledgement of Responsible Party, agreeing to pay hospital, professional, etc. bills. A Criminal Case (Unspecified) was filed against him, but was dismissed for failure to prosecute. This Civil Case for damages was initiated against Abad and Castilex; Cebu Doctors intervened to collect unpaid balances. The RTC held them solidarily liable. The CA held that Castilex is only vicariously liable. Castilex argues that the 4th paragraph of Article 2180 should apply, and not the 5th; that even though he was using a company vehicle, Abad was not acting within the scope of his duties outside office hours; that the Castilex did not have the burden of proving that Abad was not acting within the scope of his duties. Issue: Whether or not CASTILEX is vicariously liable. Held: NO. The negligence of ABAD is not an issue at this instance. CASTILEX presumes said negligence but claims that it is not vicariously liable for the injuries and subsequent death caused by ABAD. CASTILEX contends that the 5th paragraph of Article 2180 should only apply to instances where the employer is not engaged in business or industry. Since it is engaged in the business of manufacturing and selling furniture it is therefore not covered by said provision. Instead, the 4th paragraph should apply. CASTILEXs interpretation of the 5th paragraph is not accurate. The phrase even though the former are not engaged in any business or industry found in the 5th paragraph should be interpreted to mean that it is not necessary for the 59 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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employer to be engaged in any business or industry to be liable for the negligence of his employee who is acting within the scope of his assigned task. A distinction must be made between the 2 provisions to determine what is applicable. Both provisions apply to employers: the 4th PAR, to owners and managers of an establishment or enterprise; and the 5th PAR, to employers in general, whether or not engaged in any business or industry. The 4th PAR. covers negligent acts of employees committed either in the service of the branches or on the occasion of their functions, while the 5th PAR encompasses negligent acts of employees acting within the scope of their assigned task. The latter is an expansion of the former in both employer coverage and acts included. Negligent acts of employees, whether or not the employer is engaged in a business or industry, are covered so long as they were acting within the scope of their assigned task, even though committed neither in the service of the branches nor on the occasion of their functions. For, admittedly, employees oftentimes wear different hats. They perform functions which are beyond their office, title or designation but which, nevertheless, are still within the call of duty. This court has applied the 5th par. to cases where the employer was engaged in a business or industry such as truck operators and banks . The CA cannot, therefore, be faulted in applying the said paragraph of Article 2180 to this case. It is undisputed that ABAD was a Production Manager of CASTILEX at the time of the tort occurrence. As to whether he was acting within the scope of his assigned task is a question of fact, which the court a quo and the CA resolved in the affirmative. It was enough for CASTILEX to deny that ABAD was acting within the scope of his duties; it was not under obligation to prove this negative averment. ABAD, who was presented as a hostile witness, testified that at the time of the incident, he was driving a companyissued vehicle, registered under the name of CASTILEX. He was then leaving the restaurant where he had some snacks and had a chat with his friends after having done overtime work for the petitioner. However, the mere fact that ABAD was using a service vehicle at the time of the injurious incident is not of itself sufficient to charge CASTILEX with liability for the negligent operation of said vehicle unless it appears that he was operating the vehicle within the course or scope of his employment. The following are principles in American Jurisprudence on the employers liability for the injuries inflicted by the negligence of an employee in the use of an employers motor vehicle : USE OF VEHICLE GOING TO or FROM MEALS: It has been held that an employee who uses his employers vehicle in going from his work to a place where he intends to eat or in returning to work from a meal is not ordinarily acting within the scope of his employment in the absence of evidence of some special business benefit to the employer. Evidence that by using the employers vehicle to go to and from meals, an employee is enabled to reduce his time-off and so devote more time to the performance of his duties supports the finding that an employee is acting within the scope of his employment while so driving the vehicle. USE OF VEHICLE GOING TO or FROM WORK: In the same vein, traveling to and from the place of work is ordinarily a personal problem or concern of the employee, and not a part of his services to his employer. Hence, in the absence of some special benefit to the employer other than the mere performance of the services available at the place where he is needed, the employee is not acting within the scope of his employment even though he uses his emplo yers motor vehicle. The employer may, however, be liable where he derives some special benefit from having the employee drive home in the employers vehicle as when the employer benefits from having the employee at work earlier and, presumably, spending more time at his actual duties. Where the employees duties require him to circulate in a general area with no fixed place or hours of work, or to go to and from his home to various outside places of work, and his employer furnishes him with a vehicle to use in his work, the courts have frequently applied what has been called the special errand or roving commission rule, under which it can be found that the employee continues in the service of his employer until he actually reaches home. However, even if the employee be deemed to be acting within the scope of his employment in going to or from work in his employers vehicle, the employer is not liable for his negligence where at the time of the accident, the employee has left the direct route to his work or back home and is pursuing a personal errand of his own. USE OF VEHICLE OUTSIDE REGULAR WORKING HOURS: An employer who loans his motor vehicle to an employee for the latters personal use outside of regular working hours is generally not liable for the employees negligent operation of the vehicle during the period of permissive use, even where the employer contemplates that a regularly assigned motor vehicle will be used by the employee for personal as well as business purposes and there is some incidental benefit to the employer. Even where the employees personal purpose in using the vehicle has been accomplished and he has started the return trip to his house where the vehicle is normally kept, it has been held that he has not resumed his employment, and the employer is not liable for the employees negligent operation of the vehicle during the return trip.

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The foregoing principles and jurisprudence are applicable in our jurisdiction albeit based on the doctrine of respondeat superior, not on the principle of bonus pater familias as in ours. Whether the fault or negligence of the employee is conclusive on his employer as in American law or jurisprudence, or merely gives rise to the presumption juris tantum of negligence on the part of the employer as in ours, it is indispensable that the employee was acting in his employers business or within the scope of his assigned task. In the case at bar, it is undisputed that ABAD did some overtime work at the CASTILEXs office, which was located in Mandaue City. Thereafter, he went to Goldies Restaurant in Fuente Osmena, Cebu City, which is about 7 km away from his place of business. A witness for the Vasquez, a sidewalk vendor, testified that Fuente Osmea is a lively place even at dawn because Goldies Restaurant and Back Street were still open and people were drinking thereat. Moreover, prostitutes, pimps, and drug addicts littered the place. At the Goldies Restaurant, ABAD took some snacks and had a chat with friends. It was when ABAD was leaving the restaurant that the incident in question occurred. That same witness for the respondents testified that at the time of the vehicular accident, ABAD was with a woman in his car, who then shouted: Daddy, Daddy! This woman could not have been ABADs daughter, for ABAD was only 29 years old at the time. To the mind of this Court, ABAD was engaged in affairs of his own or was carrying out a personal purpose line with his duties at the time he figured in a vehicular accident. It was then about 2:00 a.m. of 28 August 1988, way beyond the normal working hours. ABADs working day had ended; his overtime work had already been completed. His being at a place which, as petitioner put it, was known as a haven for prostitutes, pimps, and drug pushers and addicts, had no connection to CASTILEXs business; neither had it any relation to his duties as a manager. Rather, using his service vehicle even for personal purposes was a form of a fringe benefit or one of the perks attached to his position. Since there is paucity of evidence that ABAD was acting within the scope of the functions entrusted to him, CASTILEX had no duty to show that it exercised the diligence of a good father of a family in providing ABAD with a service vehicle. Thus, justice and equity require that petitioner be relieved of vicarious liability for the consequences of the negligence of ABAD in driving its vehicle. 2. Jose v. Court of Appeals, G.R. Nos. 118441-42, January 18, 2000 Facts: During the night previous to the accident of February 22, 1985 at 6:15 a.m., Rommel Abraham and John Macarubo were at a party. There was no sleep for them and the service of drinks cannot be totally discounted. After the party at 11 p.m., while both Rommel and John were on their way home to Valenzuela, the car encountered mechanical trouble and had to be repaired as its cross-joint was detached. The car started to run only after 5AM. With lack of sleep, the strains of a party still on their bodies, and the attention to the repair coupled with the wait until the car was ready to run: potentials in a driver for possible accident. Petitioner Manila Central Bus Lines Corporation (MCL) is the operator-lessee of a public utility bus (Bus 203). On February 1985, at around 6AM, Bus 203 driven by Armando Jose, collided with a red Ford Escort driven by Macarubo along MacArthur Highway in Valenzuela. As a result of the collision, the left side of the Ford Escorts hood was severely damaged while its driver, Macarubo, and its lone passenger, Abraham, were seriously injured. The driver and conductress of Bus 203 rushed Macarubo and Abraham to the nearby hospital where Macarubo lapsed into a coma. Despite surgery, Macarubo failed to recover and died 5 days later. Abraham survived, but he became blind on the left eye which had to be removed. In addition, he sustained a fracture on the forehead and multiple lacerations on the face, which caused him to be hospitalized for a week. The accident happened at 6:15 a.m. when the physical and mental condition of the driver Macarubo was, as expected, not too fit for the driving as he could not anymore control the car, coupled possibly with the desire to be home quick for the much needed sleep could have prompted him to overtake the preceding vehicle. There were pictures taken which clearly show that the MCL bus was at its proper lane and not in an overtaking position while the car driven by John Macarubo was positioned in a diagonal manner and crossed the line of the MCL, which is an indication of an overtaking act. If it were the bus that was overtaking at the time, the car would have been thrown farther away from the point of the impact. Abrahams father instituted an action for damages against MCL and Armando Jose in the RTC. While parents of Macarubofiled their own suit for damages in the same trial court against MCL alone. These cases would later be consolidated MCL filed a third-party complaint against Juanita Macarubo, registered owner of the Ford Escort on the theory that John Macarubo was negligent and that he was the authorized driver of Juanita Macarubo. Juanita Macarubo in turn filed a counterclaim for damages against MCL for the damage to her car. The court was convinced of the close supervision and control of MCL over their drivers , and its exercise of due diligence in seeing to it that no recklessness is committed by its employees and drivers. Court noted the respective damages of the 2 vehicles especially the point of the impact. From the damages shown in the picture, it can be clearly 61 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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deduced which vehicle did the bumping. It was the car driven by Macarubo that hit the MCL , which was on its right and correct lane. Trial court dismissed both civil cases against MCL and ruling favorably on its third-party complaint against Juanita Macarubo. Rommel Abraham, the Macarubo spouses, and third-party defendant Juanita Macarubo then appealed to the CA which reversed the trial courts ruling. Hence, this petition for review on certiorari. Issue: (1) Whether or not Jose Macarubo is liable for damages (2) Whether the parents of Jose Macarubo are liable. Held: (1) YES. Petitioners relied mainly on photographs, showing the position of the two vehicles after the collision while private respondents offered the testimony of Rommel Abraham to the effect that the collision took place because Bus 203 invaded their lane. The trial court was justified in relying on the photographs rather than on Rommel Abrahams testimony which was obviously biased and unsupported by any other evidence. Abraham testified that it was the bus which was on the wrong lane and thus hit their car. In People v. Vasquez, where the physical evidence on record ran counter to the testimonial evidence of the prosecution witnesses, physical evidence should prevail. In this case, the positions of the 2 vehicles, as shown in the photographs taken by MCL line inspector Jesus Custodio about an hour and fifteen minutes after the collision, disputes Abrahams self-serving testimony that the two vehicles collided because Bus 203 invaded the lane of the Ford Escort and clearly shows that the case is exactly the opposite of what he claimed happened. Contrary to Abrahams testimony, the photographs show quite clearly that Bus 203 was in its proper lane and that it was the Ford Escort which usurped a portion of the opposite lane. The 3 photographs show the Ford Escort positioned diagonally on the highway, with its 2 front wheels occupying Bus 203s lane. As shown by the photograph the portion of MacArthur Highway where the collision took place is marked by a groove which serves as the center line separating the right from the left lanes. The photograph shows that the left side of Bus 203 is about a few feet from the center line and that the bus is positioned parallel thereto. Indeed, Bus 203 could not have been overtaking another vehicle when the collision happened. It was filled with passengers, and it was considerably heavier and larger than the Ford Escort. If it was overtaking another vehicle, it necessarily had to accelerate. The acceleration of its speed and its heavy load would have greatly increased its momentum so that the impact of the collision would have thrown the smaller and lighter Ford Escort to a considerable distance from the point of impact. The photograph shows however that the Ford Escorts smashed hood was only abou t one or two meters from Bus 203s damaged left front. According to the CA, there was a traffic jam on the bus lane while traffic was light on the car lane. It is therefore inconceivable that the car, occupying the lane without any traffic, would overtake and traverse a heavy traffic lane. This is correct. However, the fact remains that when the Ford Escort finally came to a stop, it encroached on the opposite lane occupied by Bus 203. Rommel Abraham testified that on the night before the accident, he and Macarubo went to a friends house in La Loma where they stayed until 11 p.m. Abrahams explanation as to why they did not reach Valenzuela until 6AM of the next day when the accident happened indicates that the Ford Escort slammed against Bus 203 because of a mechanical defect. As Rommel Abraham himself admitted, the Ford Escorts rear cross-joint was cut/detached. This mechanism controls the movement of the rear tires. Since trouble in the cross-joint affects a cars maneuverability, the matter should have been treated as a serious mechanical problem. In this case, when asked if they were able to repair the cross-joint, Abraham said Ginawaan ng paraan, maam, by simply welding them (instead of replacing the spare parts) just so they could reach home. His testimony indicates that the rear cross-joint was hastily repaired and that, at most, the kind of repairs made thereon were merely temporary; just enough to enable Abraham and Macarubo to reach home. Given such fact, the likelihood is that while the Ford Escort might not have been overtaking another vehicle, it actually strayed into the bus lane because of the defective cross-joint, causing its driver to lose control of the vehicle. Appellate court refused to give credence to the physical evidence on the ground that the photographs were taken an hour after the collision and that within such span of time the bus could have been moved. Constancia Gerolada, Bus 203s conductress, however testified that, immediately after the collision, she and bus driver, Armando Jose, took the injured driver and passenger of the Ford Escort to the Fatima Hospital. This fact is not disputed by private respondents. Rommel Abraham mentioned in his appellants brief in the CA a sketch of the scene of the accident alleged ly prepared by one Patrolman Kalale, which shows Bus 203 to be occupying the Ford Escorts lane. However, the records of this case do 62 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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not show that such a sketch was ever presented in evidence in the trial court or that Patrolman Kalale was ever presented as a witness to testify on the sketch allegedly prepared by him. The CA also ruled that MCL failed to make a satisfactory showing that it exercised the diligence of a good father of a family in the selection and supervision of its bus driver, Armando Jose. Under the circumstances of this case, the Court held that proof of due diligence in the selection and supervision of employees is not required. The responsibility of employers is premised upon the presumption of negligence of their employees. It is such a firmly established principle that the negligence of the employee gives rise to the presumption of negligence on the part of the employer. This is the presumed negligence in the selection and supervision of the employee. The theory of presumed negligence, in contrast with the American doctrine of respondent superior, where the negligence of the employee is conclusively presumed to be the negligence of the employer, is clearly deducible from the last paragraph of Article 2180 which provides that the responsibility therein mentioned shall cease if the employers prove that they observed all the diligence of a good father of a family to prevent damages Therefore, before the presumption of the employers negligence in the selection and supervision of its employees can arise, the negligence of the employee must first be established. While the allegations of negligence against the employee and that of an employer-employee relation in the complaint are enough to make out a case of quasi-delict under Art. 2180, the failure to prove the employees negligence during the trial is fatal to proving the employers vicarious liability. In this case, private respondents failed to prove their allegation of negligence against driver Armando Jose who, in fact, was acquitted in the case for criminal negligence arising from the same incident. (2) NO. Article 2180 makes the persons specified therein responsible for the quasi-delicts of others. The burden is upon MCL to prove that Juanita Macarubo is one of those specified persons who are vicariously liable for the negligence of the deceased John Macarubo. In its third-party complaint, MCL alleged that Juanita Macarubo was the registered owner of the Ford Escort car and that John Macarubo was the authorized driver of the car. Nowhere was it alleged that John Macarubo was the son, ward, employee or pupil of Juanita Macarubo so as to make the latter vicariously liable for the negligence of John Macarubo. The allegation that John Macarubo was the authorized driver of the Ford Escort is not equivalent to an allegation that he was an employee of Juanita Macarubo. That John Macarubo was the authorized driver of the car simply means that he drove the Ford Escort with the permission of Juanita Macarubo. For failure to discharge its burden, MCLs third-party complaint should be dismissed. 3. Ramos v. Court of Appeals, 321 SCRA 584 (1999) Doctrine: As the so-called captain of the ship, it is the Dr. Hosakas responsibility to see to it that those under him perform their task in the proper manner. Dr. Hosaka failed to exercise the proper in not determining if his anesthesiologist observed proper anesthesia protocols. No evidence on record exists to show that Dr. Hosaka verified if Dra. Gutierrez properly intubated the patient. Furthermore, Dr. Hosaka had scheduled another procedure in a different hospital at the same time as Erlindas cholecystectomy, and was in fact over 3 hours late for the latters operation. He had little or no time to confer with his anesthesiologist regarding the anesthesia delivery. Dr. Hosaka shares equal responsibility for the events which resulted in Erlindas condition. In the responsibility of the hospital in this particular incident, the unique practice (among private hospitals) of filling up specialist staff with attending and visiting consultants, who are allegedly not hospital employees, presents problems in apportioning responsibility for negligence in medical malpractice cases. However, the difficulty is only more apparent than real. Hospitals exercise significant control in the hiring and firing of consultants and in the conduct of work within the hospital premises. Doctors who apply for consultant slots, visiting or attending are required to submit proof of completion of residency, their educational qualifications; generally, evidence of accreditation by the appropriate board (diplomate), evidence of fellowship in most cases, and references. These requirements are carefully scrutinized by members of the hospital administration or by a review committee set up by the hospital that either accept or reject the application. After a physician is accepted, either as a visiting or attending consultant, he is normally required to attend clinicopathological conferences, conduct bedside rounds for clerks, interns and residents, moderate grand rounds and patient audits and perform other tasks and responsibilities, for the privilege of being able to maintain a clinic in the hospital, and/or for the privilege of admitting patients into the hospital. In addition to these, the physicians performance as a specialist is generally evaluated by a peer review committee on the basis of mortality and morbidity statistics, and 63 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

feedback from patients, nurses, interns and residents. A consultant remiss in his duties, or a consultant who regularly falls short of the minimum standards acceptable to the hospital or its peer review committee, is normally politely terminated. Private hospitals, hire, fire and exercise real control over their attending and visiting consultant staff. While consultants are not, technically employees, a point which respondent hospital asserts in denying all responsibility for the patients condition, the control exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with the exception of the payment of wages. For the purpose of allocating responsibility in medical negligence cases, an EMPLOYER-EMPLOYEE RELATIONSHIP, in effect, exists between hospitals and their attending and visiting physicians. The basis for holding an employer solidarily responsible for the negligence of its employee is found in Article 2180 of the CC which considers a person accountable not only for his own acts but also for those of others based on the formers responsibility under a relationship of patria potestas. Such responsibility ceases when the persons or entity concerned prove that they have observed the diligence of a good father of the family to prevent damage. While the burden of proving negligence rests on the plaintiffs, once negligence is shown, the burden shifts to the respondents (parent, guardian, teacher or employer) who should prove that they observed the diligence of a good father of a family to prevent damage. Respondent hospital, apart from a general denial of its responsibility over respondent physicians, failed to adduce evidence showing that it exercised the diligence of a good father of a family in the hiring and supervision of the latter. It failed to adduce evidence with regard to the degree of supervision which it exercised over its physicians. In neglecting to offer such proof, or proof of a similar nature, respondent hospital thereby failed to discharge its burden under the last paragraph of Article 2180. Having failed to do this, respondent hospital is consequently solidarily responsible with its physicians for Erlindas condition. 4. Ramos v. Court of Appeals, 380 SCRA 467 (2002) See previous Facts: Unlike in the 1999 case, it was held here that there is no employer-employee relationship between DLSMC and the phycisians. The court in this case does away with its ruling in the 1999 case, holding DLSMC solidary liable. It previously ruled thus: Anent private respondent DLSMCs liability for the resulting injury to pet itioner Erlinda, we held that respondent hospital is solidarily liable with respondent doctors therefor under Article 2180 of the Civil Code, since there exists an employer-employee relationship between private respondent DLSMC and Drs. Gutierrez and Hosaka: Private hospitals, hire, fire and exercise real control over their attending and visiting consultant staff. While consultants are not, technically employees, x x x the control exercised, the hiring and the right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with the exception of the payment of wages. In assessing whether such a relationship in fact exists, the control test is determining. Here, there are four grounds that DLSMC maintains in order to disclaim liability. FIRST, a hospital does not hire or engage the services of a consultant, but rather, accredits the latter and grants him or her the privilege of maintaining a clinic and/or admitting patients in the hospital upon a showing by the consultant that he or she possesses the necessary qualifications, such as accreditation by the appropriate board, evidence of fellowship and references. SECOND, it is not the hospital but the patient who pays the consultants fee for services rendered by the latter. THIRD, a hospital does not dismiss a consultant; instead, the latter may lose his or her accreditation or privileges granted by the hospital. FOURTH, DLSMC argues that when a doctor refers a patient for admission in a hospital, it is the doctor who prescribes the treatment to be given to said patient. The hospitals obligation is limited to providing the patient with the preferred room accommodation, the nutritional diet and medications prescribed by the doctor, the equipment and facilities necessary for the treatment of the patient, as well as the services of the hospital staff who perform the ministerial tasks of ensuring that the doctors orders are carried out strictly. The Court finds that respondent hospitals position on this issue is meritorious. There is no employer-employee relationship between DLSMC and Drs. Gutierrez and Hosaka which wouldhold DLSMC solidarily liable for the injury suffered by petitioner Erlinda under Article 2180.

64

Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

As explained by DLSMC, that the admission of a physician to membership in DLSMCs medical staff as active or visiting consultant is first decided upon by the Credentials Committee thereof, which is composed of the heads of the various specialty departments such as the Department of Obstetrics and Gynecology, Pediatrics, Surgery with the department head of the particular specialty applied for as chairman. The Credentials Committee then recommends to DLSMC's Medical Director or Hospital Administrator the acceptance or rejection of the applicant physician, and said director or administrator validates the committee's recommendation. Similarly, in cases where a disciplinary action is lodged against a consultant, the same is initiated by the department to whom the consultant concerned belongs and filed with the Ethics Committee consisting of the department specialty heads. The medical director/hospital administrator merely acts as exofficio member of said committee. Neither is there any showing that it is DLSMC which pays any of its consultants for medical services rendered by the latter to their respective patients. Moreover, the contract between the consultant in respondent hospital and his patient is separate and distinct from the contract between respondent hospital and said patient. The first has for its object the rendition of medical services by the consultant to the patient, while the second concerns the provision by the hospital of facilities and services by its staff such as nurses and laboratory personnel necessary for the proper treatment of the patient. Further, no evidence was adduced to show that the injury suffered by petitioner Erlinda was due to a failure on the part of respondent DLSMC to provide for hospital facilities and staff necessary for her treatment. 5. Nogales v. Capitol Medical Center, G.R. No. 142625, December 19, 2006 Facts: Corazon Nogales, 37 years old, was pregnant with her 4th child. In her past pregnancies, she gave birth in a clinic. Because of her age, spouses Nogales decided to do it in Capital Medical Center (CMC), one of the best hospitals at that time (1976). Dr Oscar Estrada was exclusively in charge of her prenatal care since her 4 th month of pregnancy. After experiencing labor pains around midnight of May 25 1976, Corazon was immediately asked to be admitted to CMC. A Consent to Admission and Admission Agreement was signed by Rogelio (husband). In the labor room, Estrada refused the services of anesthesiologist (Enriquez). When the cervix was fully dilated, Estrada assisted by a Dr. Villaflor applied low forceps to extract the baby. In the process, a piece of cervical tissue was allegedly torn (yuck). When the baby finally came out, it had to be intubated and resuscitated. After giving birth, around 6AM, Corazon showed signs of vaginal bleeding which rapidly became profuse. Her blood pressure dropped considerably. Estrada then ordered a blood transfusion but it took the CMC Lab 30 minutes to match the blood type and deliver the blood. Thereafter, the Head of the OB-GYNE Dept. (Espinola) was apprised by Corazons condition. Thus, Espinola ordered an immediate hysterectomy. Rogelio signed a Consent to Operation. Despite Espinolas efforts, Corazon died at 9:15 AM due to hemorrhage. Rogelio sued for damages against CMC, Estrada, and other people involved in the care of Corazon. They mainly contend that the defendants were negligent in the treatment and management of Corazon. Also, CMC was charged with negligence in the selection and supervision of its physicians and staff. For failure to file an answer, Estrada was declared in default. Others were able to so the trial ensued. After 11 years of trial, Estrada was adjudged to be solely liable for damages due to his his incorrect and inadequate management and lack of treatment by misapplying the forceps in the delivery because it resulted in a large cervical tear which had caused the profuse bleeding. On appeal, CA affirmed. Nogales now appeals to further impose liability against CMC. Issue: Whether CMC is vicariously liable for Estradas negligence. Held: YES. CMC disclaims liability by asserting that Estrada was a mere visiting physician and that it admitted Corazon because her physical condition then was classified an emergency obstetrics case. The employer (or the hospital) must have the right to control both the means and the details of the process by which the employee (or the physician) is to accomplish his task. After a thorough examination of the voluminous records of this case, no single evidence points to CMCs exercise of control over Estradas treatment and management of Corazons condition. Throughout the pregnancy, Corazon was under the exclusive prenatal care of Estrada. At the time of her admission at CMC and during her delivery, it was Estrada who attended to Corazon. There was no showing that CMC had a part in diagnosing her condition. While Estrada enjoyed staff privileges at CMC, such fact alone did not make him an employee of CMC. CMC merely allowed Dr. Estrada to use its facilities when she was about to give birth. The question now is whether CMC is automatically exempt from liability considering that Estrada is a mere independent contractor-physician. In general, a hospital is not liable for the negligence of an independent contractor-physician. There is, however, an exception to this principle. The hospital may be liable if the physician is the ostensible agent of the hospital. This exception is also known as the doctrine of apparent authority.

65

Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

Under said doctrine, a hospital can be held vicariously liable for the negligent acts of a physician providing care at the hospital, regardless of whether the physician is an independent contractor, unless the patient knows, or should have known, that the physician is an independent contractor. For a hospital to be liable under the doctrine of apparent authority, a plaintiff must show that: (1) the hospital, or its agent, acted in a manner that would lead a reasonable person to conclude that the individual who was alleged to be negligent was an employee or agent of the hospital; (2) where the acts of the agent create the appearance of authority, the plaintiff must also prove that the hospital had knowledge of and acquiesced in them; and (3) the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence. Said Holding Out does not require an express representation by the hospital that the person alleged to be negligent is the employee. The doctrine essentially involves two factors to determine the liability of an independent contractor physician. HOSPITALS MANIFESTATIONS It sometimes described as an inquiry whether the hospital acted in a manner which would lead a reasonable person to conclude that the individual who was alleged to be negligent was an employee or agent of the hospital . In this regard, the hospital need not make express representations to the patient that the treating physician is an employee of the hospital; rather a representation may be general and implied. Said doctrine is also a species of the doctrine of estoppel. In this case, CMC impliedly held out Estrada as a member of its medical staff thus clothing him with apparent authority leading Nogales to believe that Estrada was an employee/agent. Instances: (1) CMC granted staff privileges to Estrada; (2) Signing of Consent Forms signed did not indicate that Estrada was an independent contractor; (3) Estradas referral to the Head of OB-GYNE gave the impression that Estrada was a member the CMC staff. PATIENTS RELIANCE It is sometimes characterized as an inquiry on whether the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence. The records show that the Spouses Nogales relied upon a perceived employment relationship with CMC in accepting Estradas services. Rogelios consent in Corazons hysterectomy to be performed by a different physician, namely Espinola, is a clearindication of Rogelios confidence in CMCs surgical staff. Likewise unconvincing is CMCs argument that petitioners are estopped from claiming dama ges based on the Consent on Admission and Consent to Operation. The documents do not expressly release CMC from liability for injury to Corazon due to negligence during her treatment or operation. Neither do the consent forms expressly exempt CMC from liability for Corazons death due to negligence during such treatment or operation. Such release forms, being in the nature of contracts of adhesion, are construed strictly against hospitals. Besides, a blanket release in favor of hospitals from any and all claims, which includes claims due to bad faith or gross negligence, would be contrary to public policy and thus void. When a person needing urgent medical attention rushes to a hospital, he cannot bargain on equal footing with the hospital on the terms of admission and operation. Such a person is literally at the mercy of the hospital. 6. Professional Services, Inc., v. Agana, 513 SCRA 478 (2007) See previous 7. Professional Services, Inc., v. Agana, G.R. Nos. 126297, 126467, 127590, February 2, 2010 Facts: PSI filed a 2nd MR on the Courts decision holding it vicariously and directly liable for damages to Enrique Agana and the heirs of Natividad Agana (based on an employer-employee relationship). Manila Medical Services, Inc., Asian Hospital, Inc., and Private Hospital Association of the Philippines all sought to intervene on the common ground that, unless modified, the assailed decision and resolution will jeopardize the financial viability of private hospitals and jack up the cost of health care. Issue: Whether a hospital may be held liable for the negligence of physicians-consultants allowed to practice in its premises. Held: YES. PSI is liable to the Aganas, not under the principle of respondeat superior for lack of evidence of an employment relationship with Dr. Ampil but under the principle of OSTENSIBLE AGENCY for the negligence of Dr. Ampil and, pro hac vice, under the principle of CORPORATE NEGLIGENCE for its failure to perform its duties as a hospital. A hospital as a juridical entity cannot practice medicine, in reality it utilizes doctors, surgeons and medical practitioners in the conduct of its business of facilitating medical and surgical treatment. There are 3 legal relationships that crisscross : 1) hospital and the doctor; 2) hospital and the patient; 3) patient and the doctor. 66 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

The exact nature of each relationship determines the basis and extent of the liability of the hospital for the negligence of the doctor. Where an employment relationship exists, the hospital may be held vicariously liable under Article 2176 in relation to Article 2180 or respondeat superior. Even when no employment relationship exists but it is shown that the hospital holds out to the patient that the doctor is its agent, the hospital may still be vicariously liable under Article 2176 in relation to Article 1431 and Article 1869 or the principle of apparent authority . Regardless of its relationship with the doctor, the hospital may be held directly liable to the patient for its own negligence or failure to follow established standard of conduct to which it should conform as a corporation. There is ample evidence that the PSI held out to the patient that Dr. Ampil was its agent. There are 2 factors that determine apparent authority: 1) hospitals implied manifestation to the patient which led the latter to conclude that the doctor was the hospitals agent; and 2) patients reliance upon the conduct of the hospital and the doctor, consistent with ordinary care and prudence. Enrique testified that he consulted Dr. Ampil regarding the condition of his wife and as advised by Dr. Ampil, he asked [his] wife to go to Medical City to be examined by [Dr. Ampil] - indicates that it was Enrique who actually made the decision on whom Natividad should consult and where. When asked what impelled him to choose Dr. Ampil, he said I have known him to be a specialist on that part of the body ; A staff member of the Medical City which is a prominent and known hospital; because he is a neighbor, I expect more than the usual medical service. The decision made by Enrique for Natividad to consult Dr. Ampil was significantly influenced by the impression that Dr. Ampil was a staff member of Medical City. Enrique looked upon Dr. Ampil not as independent of but as integrally related to Medical City. In the Consent for Hospital Care signed by Agana, PSI virtually reinforced the public impression that Dr. Ampil was a physician of its hospital, rather than one independently practicing in it; that the medications and treatments he prescribed were necessary and desirable; and that the hospital staff was prepared to carry them out. PSI pointed out in its memorandum that Dr. Ampils hospital affiliation was not the exclusive basis that had Dr. Ampil been affiliated with another hospital, he would still have been chosen by the Aganas as Natividads surgeon. Court cannot speculate. Under the circumstances at that time, Enrique decided to consult Dr. Ampil for he believed him to be a staff member of a prominent and known hospital. PSI is vicariously liable for the negligence of Dr. Ampil as its ostensible agent. While PSI had no power to control the means or method by which Dr. Ampil conducted the surgery, PSI had the power to review or cause the review of what may have irregularly transpired within its walls. PSI defined the standards of its corporate conduct that it had a corporate duty to Natividad even after her operation to ensure her safety as a patient. The corporate duty was not limited to having its nursing staff note or record the 2 missing gauzes but it extended to determining Dr. Ampils role in it, bringing the matter to his attention, and correcting his negligence . Given the standard of conduct that PSI defined for itself, the inquiry is whether the hospital measured up to it. PSI excuses itself from fulfilling its corporate duty on the ground that Dr. Ampil assumed the personal responsibility of informing Natividad about the 2 missing gauzes. Dr. Ricardo Jocson, who was part of the group of doctors that attended to Natividad, testified that the group talked about the missing gauzes but Dr. Ampil assured them that he would personally notify the patient about it. PSI claimed no reason for it to act on the report on the 2 missing gauzes because Natividad Agana showed no signs of complications. The excuses are totally unacceptable. PSI could not simply wave off the problem and nonchalantly delegate to Dr. Ampil the duty to review what transpired during the operation. The purpose of such review would have been to pinpoint when, how and by whom two surgical gauzes were mislaid to avert any jeopardy to Natividads recovery. PSI could not have expected that purpose to be achieved by merely hoping that the person likely to have mislaid the gauzes might be able to retrace his own steps. By its own standard of corporate conduct, PSIs duty to initiate the review was non-delegable. While Dr. Ampil may have had the primary responsibility of notifying Natividad about the missing gauzes , PSI imposed upon itself the separate and independent responsibility of initiating the inquiry into the missing gauzes. The purpose of the first would have been to apprise Natividad of what transpired during her surgery, second would have been to pinpoint any lapse in procedure to prevent a recurrence thereof and to determine corrective measures that would ensure the safety of Natividad. That Dr. Ampil negligently failed to notify Natividad did not release PSI from its self-imposed separate responsibility. PSI had the duty to take notice of medical records prepared by its own staff when these bear earmarks of a surgery gone awry. The record taken during the operation of Natividad which reported a gauze count discrepancy should have given PSI sufficient reason to initiate a review and should not have waited for Natividad to complain. PSI took no heed of the record of operation and consequently did not initiate a review of what transpired during Natividads operation. Rather, it shirked its responsibility and passed it on to others to Dr. Ampil whom it expected to inform Natividad, and to Natividad herself to complain before it took any meaningful step. By its inaction, therefore, PSI failed its own standard of hospital care.

67

Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

The corporate negligence ascribed to PSI is different from the medical negligence attributed to Dr. Ampil. The duties of the hospital are distinct from those of the doctor-consultant. The failure of PSI to fulfill its duties as a hospital corporation gave rise to a direct liability to the Aganas distinct from that of Dr. Ampil. PSIs hospital liability based on ostensible agency and corporate negligence applies only to this case, pro hac vice and is not intended to set a precedent and should not serve as a basis to hold hospitals liable for every form of negligence of their doctorsconsultants. The ruling is unique to this case, for the liability of PSI arose from an implied agency with Dr. Ampil and an admitted corporate duty to Natividad. The agony of Aganas has gone on for 26 long years with Natividad coming to the end of her days racked in pain and agony. Such wretchedness could have been avoided had PSI simply done what was logical: heed the report of a guaze count discrepancy, initiate a review, and take corrective measures. PSI is liable for P15 million. 8. Maranan v. Perez, G.R. No. L-22272, June 26, 1967 Facts: Rogelio Corachea was a passenger in a taxicab owned and operated by Pascual Perez when he was stabbed and killed by the driver, Simeon Valenzuela. Valenzuela was prosecuted for homicide in the CFI of Batangas. Found guilty, he was sentenced to suffer imprisonment and to indemnify the heirs of the deceased. Appeal from said conviction was taken to the CA. While appeal was pending in the CA, Antonia Maranan, Rogelio's mother, filed an action in the CFI of Batangas to recover damages from Perez and Valenzuela for the death of her son. They asserted that the deceased was killed in self-defense, since he first assaulted the driver by stabbing him from behind. Perez further claimed that the death was a caso fortuito for which the carrier was not liable. The court a quo, after trial, ruled for Maranan and awarded her P3,000 as damages against Perez. The claim against Valenzuela was dismissed. From this ruling, both Maranan and defendant Perez appealed to this Court, the former asking for more damages and the latter insisting on non-liability. Subsequently, the CA affirmed the judgment of conviction earlier mentioned, during the pendency of the herein appeal, and then final judgment was entered therein. Issue: Whether Valenzuela is liable as the employer of the taxi driver who killed Maranan. Held: YES. Valenzuela relies solely on the ruling enunciated in Gillaco v. Manila that the carrier is under no absolute liability for assaults of its employees upon the passengers. The attendant facts and controlling law of that case and the one at bar are very different, however. In Gillaco, the passenger was killed outside the scope and the course of duty of the guilty employee . When the crime took place, the guard Devesa had no duties to discharge in connection with the transportation of the deceased from Calamba to Manila. When Devesa shot and killed Gillaco, Devesa was assigned to guard the Manila-San Fernando (La Union) trains, and he was at Paco Station awaiting transportation to Tutuban, the starting point of the train that he was engaged to guard. His tour of duty was to start at 9AM., 2 hours after the commission of the crime. Devesa was therefore under no obligation to safeguard the passengers of the train, where the deceased was riding; and the killing of Gillaco was not done in line of duty. Devesa's assault cannot be deemed in law a breach of Gillaco's contract of transportation by a servant or employee of the carrier. Here, the killing was perpetrated by the driver of the very cab transporting the passenger, in whose hands the carrier had entrusted the duty of executing the contract of carriage. Unlike Gillaco, the killing of the passenger here took place in the course of duty of the guilty employee and when the employee was acting within the scope of his duties. Also, Gillaco was decided under the provisions of the CC of 1889 which, unlike the present CC, did not impose upon common carriers absolute liability for the safety of passengers against wilful assaults or negligent acts committed by their employees. The death of the passenger in Gillaco was truly a fortuitous event which exempted the carrier from liability. Art. 1105 of the old CC on fortuitous events has been substantially reproduced in Art. 1174 CC of the Philippines but both articles clearly remove from their exempting effect the case where the law expressly provides for liability in spite of the occurrence of force majeure. Unlike the old Civil Code, the new CC expressly makes the common carrier liable for intentional assaults committed by its employees upon its passengers, by the wording of Art. 1759 which states that Common carriers are liable for the death of or injuries to passengers through the negligence or willful acts of the former's employees, although such employees may have acted beyond the scope of their authority or in violation of the orders of the common carriers.

68

Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

The CC provisions on the subject of Common Carriers are new and were taken from Anglo-American Law. The basis of the carrier's liability for assaults on passengers committed by its drivers rests either on (1) the doctrine of respondeat superior or (2) the principle that it is the carrier's implied duty to transport the passenger safely. Under the FIRST, which is the minority view, the carrier is liable only when the act of the employee is within the scope of his authority and duty. It is not sufficient that the act be within the course of employment only. Under the SECOND, it is enough that the assault happens within the course of the employee's duty. It is no defense for the carrier that the act was done in excess of authority or in disobedience of the carrier's orders . The carrier's liability here is absolute in the sense that it practically secures the passengers from assaults committed by its own employees. From Art. 1759, the CC evidently follows the rule based on the second view. At least 3 very cogent reasons underlie this rule. FIRST, the special undertaking of the carrier requires that it furnish its passenger that full measure of protection afforded by the exercise of the high degree of care prescribed by the law, inter alia from violence and insults at the hands of strangers and other passengers, but above all, from the acts of the carrier's own servants charged with the passenger's safety; SECOND, said liability of the carrier for the servant's violation of duty to passengers is the result of the carriers confiding in the servant's hands the performance of his contract to safely transport the passenger, delegating therewith the duty of protecting the passenger with the utmost care prescribed by law; and THIRD, as between the carrier and the passenger, the carrier must bear the risk of wrongful acts or negligence of the its employees against passengers, since the carrier, and not the passengers, has power to select and remove them. It is the carrier's strict obligation to select its drivers and similar employees with due regard not only to their technical competence and physical ability, but also, no less important, to their total personality, including their patterns of behavior, moral fibers, and social attitude. Applying this stringent norm to the facts in this case, therefore, the lower court rightly adjudged the carrier liable pursuant to Art. 1759 of the Civil Code. The dismissal of the claim against the driver was also correct. Plaintiff's action was predicated on breach of contract of carriage and the cab driver was not a party thereto. His civil liability is covered in the criminal case wherein he was convicted by final judgment. 9. The Consolidated Bank and Trust Corporation v. CA, G.R. No. 138569, September 11, 2003 See previous Doctrine: Solidbank is liable for breach of contract due to negligence. The contract between the bank and its depositor is governed by the provisions of Article 1980 on simple loan. The law imposes on banks high standards in view of the fiduciary nature of banking. Article 1172 states that the degree of diligence required of an obligor is that prescribed by law or contract, and absent such stipulation then the diligence of a good father of a family. Accordingly, Section 2 of RA 8791 (The General Banking Law of 2000) prescribes the statutory diligence required from banks that banks must observe high standards of integrity and performance in servicing their depositors. Although RA 8791 took effect almost nine years after the unauthorized withdrawal from L.C. Diazs savings account, jurisprudence at the time already imposed on banks the same high standard of diligence required under RA No. 8791. Article 1172 provides that responsibility arising from negligence in the performance of every kind of obligation is demandable. For breach of the savings deposit agreement due to negligence, or culpa contractual, the bank is liable to its depositor. Solidbanks tellers must ex ercise a high degree of diligence in insuring that they return the passbook only to the depositor or his authorized representative. If the tellers give the passbook to the wrong person, they would be clothing that person presumptive ownership of the passbook (as provided in the savings deposit agreement), thus facilitating unauthorized withdrawals by that person. In culpa contractual, once the plaintiff proves a breach of contract, there is a presumption that the defendant was at fault or negligent. In the present case, L.C. Diaz has established that Solidbank breached its contractual obligation to return the passbook only to the authorized representative of L.C. Diaz and, thus, there is a presumption that Solidbank was at fault and its teller was negligent in not returning the passbook to Calapre. Solidbank failed to discharge its burden to rebut the presumption by failing to present to the trial court the teller and failing to prove that the teller indeed verified the identity of the person who retrieved the passbook. Solidbank is bound by the negligence of its employees under the principle of respondeat superior or command responsibility. The defense of exercising the required diligence in the selection and supervision of employees is not a complete defense in culpa contractual, unlike in culpa aquiliana. (iii) Violation of rules and statutes a. Traffic rules (Memorize Articles 2184 and 2185) 1. United States v. Juanillo, 23 Phil. 212 (1912) 69 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

Facts: Ponciano Leal was killed on the public highway while going from the town of Pavia to Santa Barbara, Iloilo by being struck by an automobile, of which the Juanillo was the chauffeur. The prosecution contends that the death of the deceased was due to the reckless driving of the Juanillo while the defense insists that the unfortunate occurrence was purely an accident. The prosecution presented 4 witnesses and the defense 6, including the Juanillo. According to the witnesses for the prosecution (Labrila, Latoja, Agraviado, and son of Leal), Labrila, Leal, and Latoja were walking along the road toward Santa Barbara that afternoon. Latoja was in the middle of Labrila (left) and Leal (right). While they were walking and having a conversation, Latoja heard a noise behind them and turning around he saw an automobile approaching. He called out immediately that an automobile was coming and jumped to the left, colliding with Labrila and knocking him into the ditch. Leal on the other hand, was seen lying on the ground, having been knocked down by the automobile. The defense introduced the testimony of the members of the party riding in the automobile, (Becker, Dean, Rimmer, Hardwood, and Miller) and that of the chauffeur. All the witnesses for the defense testified that the middle of the road was clear at that place and time and that the deceased, as well as all others, were in perfectly safe places and that the deceased would not have been killed if he had not at tempted to cross from the right to the left side of the road . According to Juanillo, he noticed up ahead about 80 or 100 brazas some men walking in the road and that when he got up to within about 40 or 50 brazas of them he closed off his gasoline and kept blowing his horn. He also placed his foot on the exhaust so he could make a noise. They were then going about 10 MPH. When they were within about 2 or 3 brazas of the men, the man on the right side started to run across the road. He put on his brakes but could not stop right on the spot. Some part of the automobile hit him. At the time they hit the man they were going about 6 or 8 MPH. They ran about 3 or 4 brazas more when the automobile stopped. Q. If you could stop going at 8 miles an hour within 2 brazas, why did you run 3 or 4? A. I don't know, sir; I was going about 8 miles an hour, I should say. Issue: Whether Juanillo is liable for reckless imprudence. Held: YES. According to the witnesses for the defense, when they were about 25 feet away from the natives, the brakes were applied with such force that he and his companions were all thrown forward, yet the machine still continued running, hitting the deceased under its own momentum for about 150 or 200 yards. In view of all the admitted facts and circumstances, and the unreasonableness of the stories told by the defendantappellant and his witnesses we are fully satisfied that the trial court was justified in accepting the testimony of Latoja, Labrila, and Agraviado as to how the collision took place. Neither Latoja nor Labrila heard the blowing of the horn or any other warning until the machine was so close that Latoja and Labrila barely had time to make their escape, while the deceased, being on the left, did not have sufficient time. It has been held, that courts will take judicial notice that an automobile makes an unusual noise; that it can be driven at a great velocityat a speed many times greater than that of ordinary vehicles drawn by animals, and that it is highly dangerous when used on country roads. Its use as a vehicle for traveling is comparatively recent. It makes an unusual noise. It can be and usually is made to go on common roads at great velocity at a speed many times greater than that of ordinary vehicles hauled by animals; and beyond doubt it is highly dangerous when used on country roads, putting to great hazard the safety and lives of the mass of the people who travel on such roads. It is generally held that the rights and duties of pedestrians and vehicles are equal. Each may use the highway, and each must exercise such care and prudence as the circumstances demand. Owners of automobiles have the same rights in the streets and highways that pedestrians and drivers of horses have. Automobile drivers or the drivers of animals are not to use the means of locomotion without regard to the rights of others having occasion to travel on the highway. While an automobile is a lawful means of conveyance and has equal rights upon the roads with pedestrians, horses, and carriages, its use cannot be lawfully countenanced unless accompanied with that degree of prudence in management and consideration for the rights of others which is consistent with safety. 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. Negligence is want of care required by the circumstances. It is a relative or comparative, not an absolute term, and its application depends upon the situation of the parties, and the degree of care and vigilance which the circumstances reasonably impose. 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. The operator of an automobile is bound to exercise care in proportion to the varying danger and risks of the highway and commensurate with the dangers naturally incident to the use of such vehicle . He is obliged to take notice of the conditions before him, and if it is apparent that by any particular method of proceeding he is liable to work an injury, it is his duty to adopt some other or safer method if within reasonable care and prudence he can do so. In determining the degree of care an operator of an automobile should use, when on the highway, it is proper to take 70 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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into consideration the place, presence or absence of other travelers, the speed of the automobile, its size, appearance, manner of movement, and the amount of noise it makes, and anything that indicates unusual or peculiar danger. The quantum of care required is to be estimated by the exigencies of the particular situation; that is, by the place, presence or absence of other vehicles and travelers; Also, the degree of care required to be exercised varies with the capacity of the person endangered to care for himself. Thus, it has been held not to be negligence per se in a boy of 6 to play on the highway, where an auto mobile came up on him under circumstances which produced fright and terror, and thus caused an error of judgment by which the boy ran in front of the automobile. The testimony of all the parties in the case at bar as to the surrounding conditions of this occurrence was to the effect that the road on which they were traveling was dotted with simple rural folk. In his brief, counsel for the Juanillo says: Two native farmers who all their lives have seen nothing that moves faster than a bull cart, except on the two or three occasions on which they testify they have visited Iloilo, cannot be expected to give an intelligent idea of speed of an automobile, train, or even a fast horse. Under such conditions Juanillo being in charge of the powerful machine, capable of doing great damage if not skillfully manipulated, was bound to use a high degree of care to avoid injuring these native farmers , who had a common right to the highway. A driver of an automobile, under such circumstances, is required to use a greater degree of care than drivers of animals, for the reason that the machine is capable of greater destruction, and furthermore, it is absolutely under the power and control of the driver; whereas, a horse or other animal can and does to some extent aid in averting an accident. It is not pleasant to be obliged to slow down automobiles to accommodate persons riding, driving, or walking. It is probably more agreeable to send the machine along and let the horse or person get out of the way in the best manner possible; but it is well to understand, if this course is adopted and an accident occurs, that the automobile driver will be called upon to account for his acts. An automobile driver must at all times use all the care and caution which a careful and prudent driver would have exercised under the circumstances. Juanillo was aware of and is chargeable with the knowledge that the deceased and his companions were simple country people and were lacking in the capacity to appreciate and to guard against the dangers of an automobile driven at a high rate of speed, and he was bound to enlarge to a commensurate extent the degree of vigilance and care necessary to avoid injuries which the use of his machine made more imminent. The negligence of Juanillo in the case at bar consisted in his failure to recognize the great injury that would accrue to the deceased from the collision. He had no right, it seems to us, after he saw the deceased and his companions walking in the road ahead of him to continue at so great a speed, at the eminent hazard of colliding with the deceased. Great care was due from him by reason of the deadliness of the machine he was propelling along the highway. When one comes through the highways with a machine of such power as an automobile, it is incumbent upon the driver to use great care not to drive against or over pedestrians. An automobile is much more dangerous than a street car or even a railway car. These are propelled along fixed rails and all the traveling public has to do to be safe is to keep off the track. But the automobile can be turned as easily as an individual, and for this reason is far more dangerous to the traveling public than either the street car or the railway train. 2. Chapman v. Underwood, G.R. No. 9010, March 28, 1914 Facts: At the time the accident occurred, there was a single-track street-car line running along Calle Herran, with occasional switches to allow cars to meet and pass each other. One of these switches was located at the scene of the accident. Chapman had been visiting his friend, Creveling, in front of whose house the accident happened. He desired to board a certain "San Marcelino" car coming from Santa Ana and bound for Manila. Being told by Creveling that the car was approaching, he immediately, and somewhat hurriedly, passed from the gate into the street for the purpose of signaling and boarding the car. The car was a closed one, the entrance being from the front or the rear platform. Chapman attempted to board the front platform but, seeing that he could not reach it without extra exertion, stopped beside the car, facing toward the rear platform, and waited for it to come abreast of him in order to board. While in this position he was struck from behind and run over by the Underwoods automobile. Underwood entered Calle Herran at Calle Penafrancia in his automobile driven by his chauffeur. A street car bound from Manila to Santa Ana being immediately in front of him, he followed along behind it. Just before reaching the scene of the accident, the street car which he was following took the switch that is, went off the main line to the left upon the switch lying alongside of the main track. Thereupon the Underwood no longer followed that street car nor went to the left, but either kept straight ahead on the main street-car track or a bit to the right. The car which the Chapman intended to board was on the main line and bound in an opposite direction to that in which Underwood was going. When the front of the "San Marcelino" car, the one the Chapman at tempted to board, was almost in front of Underwoods automobile, his driver suddenly went to the right and struck and ran over the Chapman, as above described. 71 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013 Issue: Whether Underwood, as owner of the car, is liable.

Atty. Jess Lopez

Held: NO. Underwoods driver was guilty of negligence in running upon and over the Chapman. He was passing an oncoming car upon the wrong side. Chapman, in coming out to board the car, was not obliged, for his own protection, to observe whether a car was coming upon him from his left hand. He had only to guard against those coming from the right. He knew that, according to the law of the road, no automobile or other vehicle coming from his left should pass upon his side of the car. He needed only to watch for cars coming from his right, as they were the only ones under the law permitted to pass upon that side of the street car. Underwood, however, is not responsible for the negligence of his driver, under the facts and circumstances of this case. As we have said in the case of Johnson vs. David, the driver does not fall within the list of persons in article 1903 of the CC for whose acts the defendant would be responsible. Although in David the owner of the vehicle was not present at the time the alleged negligent acts were committed by the driver, the same rule applies where the owner is present, unless the negligent acts of the driver are continued for such a length of time as to give the owner a reasonable opportunity to observe them and to direct his driver to desist therefrom. An owner who sits in his automobile, or other vehicle, and permits his driver to continue in a violation of the law by the performance of negligent acts, after he has had a reasonable opportunity to observe them and to direct that the driver cease therefrom, becomes himself responsible for such acts. The owner of an automobile who permits his chauffeur to drive up the Escolta, for example, at a speed of 60 MPH, without any effort to stop him, although he has had a reasonable opportunity to do so, becomes himself responsible, both criminally and civilly, for the results produced by the acts of his chauffeur. On the other hand, if the driver, by a SUDDEN act of negligence, and without the owner having a reasonable opportunity to prevent the act or its continuance, injures a person or violates the criminal law, the owner of the automobile, although present therein at the time the act was committed, is not responsible, either civilly or criminally, therefor. The act complained of must be continued in the presence of the owner for such a length of time that the owner, by his acquiescence, makes his driver's act his own. It does not appear from the record that, from the time the automobile took the wrong side of the road to the commission of the injury, sufficient time intervened to give the defendant an opportunity to correct the act of his driver. The interval between the turning out to meet and pass the street car and the happening of the accident was so small as not to be sufficient to charge defendant with the negligence of the driver. Whether or not the owner of an automobile driven by a competent driver, would be responsible, whether present or not, for the negligent acts of his driver when the automobile was a part of a business enterprise, and was being driven at the time of the accident in furtherance of the owner's business, we do not now decide. 3. United States v. Crame, 30 Phil. 1 (1915) Facts: At around 11-12 PM, Crame, a duly licensed chauffeur was driving an automobile along with Bill (a sailor) and Rabonsa. The vehicle was passing from Sta. Ana to Manila. At the same time, there were 2 automobiles heading to Sta. Ana from Manila. One of the cars was driven by a certain Stuart. Crame alleged that the car driven by Stuart (a Cadillac) had high powered electric lights and because of such, he was induced to reduce his speed to about 10 MPH. He asserts that he suddenly saw a man in front of his car and that, on seeing him, he altered the course of the automobile as much as possible in order to avoid collision but was unable to do so. He alleged that at the time the automobile struck the man, the machine was almost at a standstill, it coming to a complete stop within 6 feet where the injured man lay. Thereafter, Crame, Bill and Rabonsa brought the injured man to the hospital and gave an account of the incident to the authorities. Because of the accident, Coombs (victim of the accident and a US private) was rendered unconscious and remained in a state of mental debility, accompanied with loss of memory. The physician described him as incurable and hopeless imbecile. The trial court convicted Crame of the crime of producing serious physical injuries by imprudencia temeraria (reckless imprudence). It found that the accused, first, having seen the Coombs crossing the street at a certain distance in front of the automobile, did not reduce the speed of the automobile sufficiently, nor attempt to stop the machinery entirely, if that was necessary, to avoid an accident. Second, in that it does not appear that the accused sounded his horn or whistle or used his voice to call the attention of the person who was crossing the street or notify him that he should stop and avoid being struck by the automobile. Third and last, in that the accused was driving in the center, or little to the right of the center of the street instead of on the left side thereof. 72 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013 Issue: Whether Crame is liable.

Atty. Jess Lopez

Held: YES. The accused did not see the soldier whom he ran down until it was too late, although the street at that point was brilliantly lighted; he did not sound his horn or give notice of his approach in any other manner; he did not apply the brake or make any effort whatever to stop; he was traveling on the wrong side of the street at the time of the collision. The court upheld the findings of the trial court. They found that there were 3 grounds for the negligence of Crame. First the accused claims that he was unable to stop his automobile. However this was refuted that had he begun to stop the machine upon seeing Coombs, the accident would have been avoided (considering that the speed would have been around 10-20 MPH) Second, accused failed to sound his horn and arrest the attention of the soldier who was crossing the street. There is no allegation or proof offered by the accused. Third, the accused alleged that they were unable to pass along the left side of the road since there was a ditch and that the road was uneven which would have brought greater danger on Crame and his passenger. However the court found that this view is unsustainable since there were 2 street car tracks that and that accused would not need to bring his automobile to the left side track near the ditch, since there still remains the center track. The fact that the accused did not see the soldier until the machine was very close to him is strong evidence of inattention to duty. The street at the place where the accident occurred is wide and unobstructed. There is no building on either side of the street. There is no place from which a person desiring to cross the street can dart out so suddenly and unexpectedly as to give a chauffeur no opportunity to protect him. The accused intimates in his testimony that a carromata was approaching him just before the accident occurred and that it obscured his vision to such an extent that he did not see that soldier until the very moment of meeting the carromata. This story is not corroborated by any other witness in the case. Given that there was even a carromata, he would still have seen Coombs crossing since the carromata would have only momentarily obscured his vision for a moment. There is nothing in this story of the accused which, if true, relieves from the charge of negligence under the other facts and circumstances disclosed by the evidence. Additionally, the area where the accident took place is a place where many persons habitually wait to transfer and where as a matter of fact many persons stroll about waiting for cars . The defendant was aware of these facts. Moreover, he testified himself that the street at that place was not level, that the rails of the street-car track made it difficult for automobiles to cross or pass over them and that keeping to the extreme left-hand side of the street would endanger the safety of the automobile and the passengers. All of these are facts which require care and diligence on the part of an automobile driver; and such a place should be approached guardedly , with the machine under control and with ability to stop with reasonable quickness. It appears clearly established by the evidence that the accused was driving on the right-hand side of the street when the accident happened. According to the law of the road and the custom of the country he should have been on the left-hand side of the street. According to the evidence there was abundant room for him to drive upon what may properly be called the left-hand side of the street and still be free from danger or risk. Instead of that he chose to take what appears from the evidence to have been almost the extreme right-hand side of the street. Thomas M. Bill, who was a passenger in the automobile which ran down the soldier, testified that the automobile at the time of the accident was traveling on the right-hand side of the street. The testimony showing that the accused was driving on the right-hand side of the street is corroborated by the fact that the witness Rabonsa, who testified on the trial that the accused was driving on the left-hand side of the street, first declared, in his statement to the prosecuting attorney, that, at the time of the accident, the automobile was being driven on the right-hand side of the street. While it is true that the law does not draw an inference of negligence from the mere showing that there was a collision between a man and an automobile on a public street but that negligence must be proved where, in the an action to recover damages for having been run down by defendant's automobile, it appeared that the automobile, at the time the injury was produced, was being driven on the wrong side of the street, the burden of proof was on defendant to establish that the accident occurred through other causes than his negligence. Negligence cannot be attributed to Coombs. The mere fact that he was run down by an automobile does not signify that he was negligent. At the time he was struck he was, speaking from the direction in which the accused was driving the automobile at the time, on the right-hand side of the street where he had a right to be and where the law fully protested him from vehicles traveling. Additionally, the court cannot sustain the allegation of accused that he was driving at about 10 MPH only. Accused could have stopped his vehicle immediately if he saw the soldier at about 20 feet. Furthermore, if he did not see that soldier until 73 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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too late to stop, the burden is on him to show why he did not. There is something wrong when a chauffeur runs over a man who is in plain view of the automobile for a long distance before the point of the accident is reached . Lastly, the court cannot ascribe to accused defense that the soldier was drunk. It is of no moment whether he is drunk or not since it was not proven and that it would have contributed to the accident.

4. De Leon Brokerage Co., Inc., v. Court of Appeals, 4 SCRA 517 (1962) Facts: DLBC owns a cargo truck which was driven by Luna. On the day in question, Luna was instructed by DLBC to go to Pampanga and, from there, proceed to Nueva Ecija. However, after unloading its cargo in Pampanga, for unknown reasons, he drove back to Manila. On his way back, Luna figured in a collision with a passenger jeepney. As a result, there were casualties. Also, private respondent Angeline Steen (16-yrs) suffered an injury wherein her left arm had been scraped bare of flesh from shoulder to elbow. Leopoldo Steen (father) reserved the right to file a civil action pending the criminal action he instituted against Luna and the driver of the jeepney. Luna was convicted with reckless imprudence resulting to homicide and physical injuries while the jeepney driver was acquitted. After said conviction, Steen filed an action to recover damages under quasi delict and presented the judgment of conviction as evidence for his claim for damages. The trial court held Luna solidarily liable with DLBC. CA affirmed. This petition alleges that Luna was not in the discharge of his duties at the time of the accident and, thus, DLBC cannot be held solidarily liable. DLBC also claims that it cannot be held liable pursuant to Art. 2184 of the CC which states that In motor vehicle mishaps, the owner is solidarily liable with his driver, if the former, who was in the vehicle, could have, by the use of the due diligence, prevented the misfortune. It is disputably presumed that a driver was negligent, if he had been found guilty of reckless driving or violating traffic regulations at least twice within the next preceding two months. Issue: Whether DLBC is solidarily liable with Luna. Held: YES. Having established the fact of Lunas negligence through the judgment of conviction that was presented as evidence, a presumption arose that Lunas employer, DLBC, was negligent in the selection and supervision of its employees. Moreover, DLBC was not able to prove that it exercised the required diligence. In other words, in the absence of determinative proof that the Luna deviated from his employers instructions, DLBC should be held liable. With regard to DLBCs defense under Art. 2184, it only applies to owners of vehicles who are not included in the terms of Art. 2180 as owners of an establishment or enterprise. 5. Caedo v. Yu Khe Thai, 26 SCRA 410 (1968) Facts: A vehicular accident occurred injuring Marcial Caedo and several members of this family. The mishap occurred at about 530AM of March 24, 1958 on Highway 54. Marcial was driving his Mercury car on his way from his home in QC to the airport where his son Ephraim was scheduled to take a plane for Mindoro. With them in the car were Mrs. Caedo and 3 daughters. Coming from the opposite direction was the Cadillac of Yu Khe Thai, with his driver Rafael Bernardo at the wheel, taking the owner from his Paraaque home to Wack Wack for his regular round of golf. Bernando tried to avoid a carretela (going in the same direction) in front of him by suddenly swerving to the left lane where Caedo was driving in the opposite direction. Caedo tried to avoid the Cadillac but it was too late. Caedo et al filed the present complaint for damages against Yu Ke Thai and Bernando. The CFI ruled that Bernando was negligent; and that he is solidarily liable with Yu Ke Thai. Issue: Whether Bernardo was negligence and whether Yu Ke Thai can be held solidarily liable. Held: YES & NO. Bernando was guilty of negligence. The 2 cars were traveling at fairly moderate speeds, considering the condition of the road and the absence oftraffic the Mercury at 40 to 50 KPH, and the Cadillac at approximately 30 to 35 miles (48 to 56 kilometers). Their headlights were mutually noticeable from a distance. Ahead of the Cadillac, going in the same direction, was a carretela owned by a certain Pedro Bautista. The carretela was towing another horse by means of a short rope coiled around the rig's vertical post on the right side and held at the other end by Pedro's son, Julian Bautista. Bernardo testified that he was almost upon the rig when he saw it in front of him, only 8 meters away. This is the first clear indication of his negligence. The carretela was provided with two lights, one on each side, and they should have given him sufficient warning to take the necessary precautions. And even if he did not notice the lights, as he claimed later on at the trial, the carretela should anyway have been visible to him from afar.

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In the meantime the Mercury was coming on its own lane from the opposite direction. Bernardo, instead of slowing down or stopping altogether behind the carretela until that lane was clear, veered to the left in order to pass. As he did so the curved end of his ear's right rear bumper caught the forward rim of the rig's left wheel, obliquely to the other lane, where it collided with the oncoming vehicle. On his part Caedo had seen the Cadillac on its own Lane; he slackened his speed, judged the distances in relation to the carretela and concluded that the Cadillac would wait behind. Bernardo, however, decided to take a gamble beat the Mercury to the point where it would be in line with the carretela, or else squeeze in between them in any case. It was a risky maneuver either way, and the risk should have been quite obvious. Caedo, confronted with the unexpected situation, tried to avoid the collision at the last moment by going farther to the right, but was unsuccessful. The photographs taken at the scene show that the right wheels of his car were on the unpaved shoulder of the road at the moment of impact. Thus, there is no question as to Bernardos negligence. As to Yu Ke Thais liability, under Art. 2184, if the causative factor was the driver's negligence, the owner of the vehicle who was present is likewise held liable if he could have prevented the mishap by the exercise of due diligence. An owner who sits in his automobile, or other vehicle, and permits his driver to continue in a violation of the law, by the performance of negligent acts, after he has had a reasonable opportunity to observe them and to direct that the driver cease therefrom, becomes himself responsible for such acts. On the other hand, if the driver, by a sudden act of negligence, and without the owner having a reasonable opportunity to prevent the act or its continuance , injures a person or violates the criminal law, the owner of the automobile, although present therein at the time the act was committed, is not responsible, either civilly or criminally, therefor. The act complained of must be continued in the presence of the owner for such a length of time that the owner, by his acquiescence, makes his driver's act his own. Bernardo is an experienced driver. He was Yu Ke thais driver since 1987, and before that served another master for 10 years as a driver. Thus the Court declared that no negligence for having employed him at all may be imputed to his master. Negligence on the part of the latter, if any, must be sought in the immediate setting and circumstances of the accident, that is, in his failure to detain the driver from pursuing a course which not only gave him clear notice of the danger but also sufficient time to act upon it. Thus, the basis of the master's liability in civil law is not respondeat superior but rather the relationship of pater familias. The theory is that ultimately the negligence of the servant, if known to the master and susceptible of timely correction by him, reflects his own negligence if he fails to correct it in order to prevent injury or damage. We do not see that such negligence may be imputed. The car was not running at an unreasonable speed. The road was wide and open, and devoid of traffic that early morning. There was no reason for the car owner to be in any special state of alert. He had reason to rely on the skill and experience of his driver. He became aware of the presence of the carretela when his car was only twelve meters behind it, but then his failure to see it earlier did not constitute negligence, for he was not himself at the wheel. And even when he did see it at that distance, he could not have anticipated his driver's sudden decision to pass the carretela on its left side in spite of the fact that another car was approaching from the opposite direction. The time element was such that there was no reasonable opportunity for Yu Khe Thai to assess the risks involved and warn the driver accordingly. The thought that entered his mind, he said, was that if he sounded a sudden warning it might only make the other man nervous and make the situation worse. It was a thought that, wise or not, connotes no absence of that due diligence required by law to prevent the misfortune. The test of imputed negligence under Article 2184 is, to a great degree, necessarily subjective . Car owners are not held to a uniform and inflexible standard of diligence as are professional drivers. In many cases they refrain from driving their own cars and instead hire other persons to drive for them precisely because they are not trained or endowed with sufficient discernment to know the rules of traffic or to appreciate the relative dangers posed by the different situations that are continually encountered on the road. What would be a negligent omission under aforesaid Article on the part of a car owner who is in the prime of age and knows how to handle a motor vehicle is not necessarily so on the part, say, of an old and infirm person who is not similarly equipped. The law does not require that a person must possess a certain measure of skill or proficiency either in the mechanics of driving or in the observance of traffic rules before he may own a motor vehicle. The test of his negligence, within the meaning of Article 2184, is his omission to do that which the evidence of his own senses tells him he should do in order to avoid the accident. 6. FGU Insurance Corporation v. Court of Appeals, G.R. No. 118889, March 23, 1998 Facts: At 3AM, 2 vehicles (Lancers) cruising northward along EDSA figured in a traffic accident. The car owned by Lydia F. Soriano was being driven at the outer lane of the highway by Benjamin Jacildone. The other car, owned by respondent FILCAR Transport, Inc. (FILCAR), and driven by Peter Dahl-Jensen as lessee, was at the center lane, left of the other vehicle. Upon approaching the corner of Pioneer Street, the car owned by FILCAR swerved to the right hitting the left side of the car of Soriano. Dahl-Jensen, a Danish tourist, did not possess a Philippine drivers license. FGU Insurance, in view of its insurance contract with Soriano, paid the latter P25,382.20. By way of subrogation, FGU sued Dahl-Jensen and 75 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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FILCAR as well as respondent Fortune Insurance. The summons was not served on Dahl-Jensen since he was no longer staying at his given address, he was later dropped from the complaint. TC dismissed for failure of FGU to substantiate its claim of subrogation. CA affirmed but on a different ground: only the fault or negligence of Dahl- Jensen was sufficiently proved but not that of FILCAR. FGU insists rely on the ruling in MYC-Agro-Industrial Corporation v. Vda. de Caldo that the registered owner of a vehicle is liable for damages suffered by third persons although the vehicle is leased to another. Issue: May an action based on quasi-delict prosper against a rent-a-car company and, consequently, its insurer for fault or negligence of the car lessee in driving the rented vehicle? Held: NO. To prove quasi-delict under Art. 2176, the following are the requisites: (a) damage suffered by the plaintiff; (b) fault or negligence of the defendant; and, (c) connection of cause and damage. FGU failed to prove the existence of the 2nd requisite, i.e., fault or negligence of FILCAR, because only the fault or negligence of Dahl-Jensen was sufficiently established. The damage caused on the vehicle of Soriano was due to the fact that Dahl-Jensen swerved to the right while the vehicle he was driving was at the center lane. Thus, negligence was solely attributable to Dahl-Jensen and must be his personal liability . FILCAR did not have any participation. The liability under Art. 2180 arises by virtue of a presumption juris tantum of negligence on the part of the persons made responsible thereunder for failure to exercise due care and vigilance over the acts of subordinates . Art. 2180 is not applicable. FILCAR being engaged in a rent-a-car business was only the owner of the car leased to Dahl-Jensen. There is no vinculum juris between them as employer and employee. FILCAR cannot in any way be responsible for the negligent act of Dahl-Jensen, the former not being an employer of the latter. Correlating par. 5 of Art. 2180 with Art. 2184 which provides t hat in motor vehicle mishap, the owner is solidarily liable with his driver, if the former, who was in the vehicle, could have by the use of due diligence, prevented the misfortune. If the owner was not in the motor vehicle, the provisions of article 2180 are applicable. Such is neither applicable because of the absence of master-driver relationship between FILCAR and Dahl-Jensen. FGU has no cause of action against respondent FILCAR on the basis of quasi-delict. Likewise, its claim against FORTUNE can neither prosper. FGUs insistence on MYC-Agro-Industrial Corporation is rooted in a misapprehension of our ruling. In that case, the negligent and reckless operation of the truck owned by petitioner corporation caused injuries to several persons and damage to property. Intending to exculpate itself from liability, the corporation raised the defense that at the time of the collision it had no more control over the vehicle as it was leased to another; and, that the driver was not its employee but of the lessee. The court was not persuaded as it found that the true nature of the alleged lease contract was nothing more than a disguise effected by the corporation to relieve itself of the burdens and responsibilities of an employer. 7. Mallari v. Court of Appeals, 324 SCRA 147 (2000) Facts: At around 5AM, the passenger jeepney driven by Alfredo Mallari, Jr. and owned by his co-petitioner Alfredo Mallari, Sr. collided with the delivery van of respondent Bulletin Publishing Corp. Mallari, Jr. testified that he went to the left lane of the highway and overtook a Fiera which had stopped on the right lane. Before he passed by the Fiera, he saw the van of BULLETIN coming from the opposite direction. It was driven by Felix Angeles. The sketch of the accident showed that the collision occurred after Mallari, Jr. overtook the Fiera while negotiating a curve in the highway. The points of collision were the left rear portion of the passenger jeepney and the left front side of the delivery van of BULLETIN. The 2 right wheels of the delivery van were on the right shoulder of the road and pieces of debris from the accident were found scattered along the shoulder of the road up to a certain portion of the lane travelled by the passenger jeepney. The impact caused the jeepney to turn around and fall on its left side resulting in injuries to its passengers one of whom was Israel Reyes who eventually died due to the gravity of his injuries. Claudia G. Reyes, the widow, filed a complaint for damages against Mallari, Sr. and Mallari, Jr., and also against BULLETIN, its driver Felix Angeles, and the N.V. Netherlands Insurance Company. The complaint alleged that the collision which resulted in the death of Israel Reyes was caused by the fault and negligence of both drivers . The trial court found that the proximate cause of the collision was the negligence of the driver of the Bulletin delivery van, considering the fact that the left front portion of the delivery truck driven by Felix Angeles hit and bumped the left rear portion of the passenger jeepney driven by Alfredo Mallari, Jr. Hence, the trial court ordered BULLETIN and Felix Angeles to pay jointly and severally the widow. It also dismissed the complaint against the other defendants Alfredo Mallari, Sr. and Alfredo Mallari, Jr. 76 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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Atty. Jess Lopez

On appeal the CA modified the decision and found no negligence on the part of Angeles and consequently of his employer BULLETIN. CA ruled that the collision was caused by the sole negligence of Alfredo Mallari, Jr. It absolved from any liability respondent BULLETIN, Felix Angeles and N.V. Netherlands Insurance Company. Issue: Is Mallari Jr. liable for the accident. Held: YES. Contrary to their allegation that there was no evidence whatsoever that petitioner Mallari, Jr. overtook a vehicle at a curve on the road at the time of or before the accident, the same petitioner himself testified that such fact indeed did occur. The CA correctly found, based on the sketch and spot report of the police authorities which were not disputed, that the collision occurred immediately after Mallari, Jr. overtook a vehicle in front of it while traversing a curve on the highway. This act of overtaking was in clear violation of Sec. 41, pars, (a) and (b), of RA 4136 as amended, otherwise known as The Land Transportation and Traffic Code. A driver abandoning his proper lane for the purpose of overtaking another vehicle in an ordinary situation has the duty to see to it that the road is clear and not to proceed if he cannot do so in safety. When a motor vehicle is approaching or rounding a curve, there is special necessity for keeping to the right side of the road and the driver does not have the right to drive on the left hand side relying upon having time to turn to the right if a car approaching from the opposite direction comes into view. In this case, by his own admission, Mallari, Jr. already saw that the BULLETIN delivery van was coming from the opposite direction and failing to consider the speed thereof since it was still dark at 5AM mindlessly occupied the left lane and overtook 2 vehicles in front of it at a curve in the highway. The proximate cause of the collision resulting in the death of Israel Reyes, a passenger of the jeepney, was the sole negligence of the driver of the passenger jeepney, Mallari, Jr., who recklessly operated and drove his jeepney in a lane where overtaking was not allowed by traffic rules. Under Art. 2185 CC, unless there is proof to the contrary, it is presumed that a person driving a motor vehicle has been negligent if at the time of the mishap he was violating a traffic regulation. As found by CA, Mallari failed to present satisfactory evidence to overcome this legal presumption. The negligence and recklessness of the driver of the passenger jeepney is binding against Mallari, Sr., who admittedly was the owner of the passenger jeepney engaged as a common carrier, considering the fact that in an action based on contract of carriage, the court need not make an express finding of fault or negligence on the part of the carrier in order to hold it responsible for the payment of damages sought by the passenger. Under Art. 1755, a common carrier is bound to carry the passengers safely as far as human care and foresight can provide using the utmost diligence of very cautious persons with due regard for all the circumstances. Under Art. 1756, in case of death or injuries to passengers, a common carrier is presumed to have been at fault or to have acted negligently, unless it proves that it observed extraordinary diligence. Pursuant to Art. 1759, it is liable for the death of or injuries to passengers through the negligence or willful acts of the formers employees. This liability of the common carrier does not cease upon proof that it exercised all the diligence of a good father of a family in the selection of its employees by the contract of carriage, the carrier jeepney owned by Mallari, Sr. assumed the express obligation to transport the passengers to their destination safely and to observe extraordinary diligence with due regard for all the circumstances, and any injury or death that might be suffered by its passengers is right away attributable to the fault or negligence of the carrier. 8. Pleyto v. Lomboy, 432 SCRA 329 (2004) Facts: Philippine Rabbit (PRBL) is a public carrier, servicing various routes in Central and Northern Luzon. Pleyto was one of its drivers. Pleytos bus figured in a head on collision with a car, killing Ricardo Lomboy and injuring Carmela Lomboy. It was 11:30 am, and it was drizzling. According to one of the bus passengers, Pleyto tried to overtake a tricycle, but hit it instead. He swerved to the opposite lane, smashing head-on into the Mitsubishi Lancer, resulting in the above hassles. Carmela and Maria, the widow, filed an action for damages against PRBL and Pleyto. PRBL and Pleyto argue that the bus was running slowly, and was inspected prior to the trip. Pleyto was merely following the trike, when it suddenly stopped in the middle of the road. He stepped on the brakes, but the bus still skidded; he swerved to avoid the trike, only to collide with the Lancer. The RTC held petitioners solidarily liable. It found Pleyto negligent in its disregard of the other car. It believed the passengers testimony as against petitioners self-serving story. Further, it found that Pleyto clearly violated traffic rules 77 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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and regulations, and thus was negligent under Article 2185, having failed to present any proof to the contrary. PRBL was liable under Article 2180. The CA affirmed the decision. Issue: Whether or not Pleyto was negligent. Held: YES. The negligence and fault of appellant driver is manifest. He overtook the tricycle despite the oncoming car only fifty (50) meters away from him. Defendant-appellants claim that he was driving at a mere 30 to 35 KPH does not deserve credence as it would have been easy to stop or properly maneuver the bus at this speed. The speed of the bus, the drizzle that made the road slippery, and the proximity of the car coming from the opposite direction were duly established by the evidence. The speed at which the bus traveled, inappropriate in the light of the aforementioned circumstances, is evident from the fact despite the application of the brakes, the bus still bumped the tricycle, and then proceeded to collide with the incoming car with such force that the car was pushed beyond the edge of the road to the ricefield. Indeed, Pleyto violated traffic rules and regulations when he overtook the tricycle despite the presence of an oncoming car in the other lane. Article 2185 lays down the presumption that a person driving a motor vehicle has been negligent if at the time of the mishap, he was violating any traffic regulation. As found by both the CA and the trial court, petitioners failed to present any convincing proof rebutting such presumption. A driver abandoning his proper lane for the purpose of overtaking another vehicle in an ordinary situation has the duty to see to it that the road is clear and not to proceed if he cannot do so in safety. When a motor vehicle is approaching or rounding a curve, there is special necessity for keeping to the right side of the road and the driver does not have the right to drive on the left hand side relying upon having time to turn to the right if a car approaching from the opposite direction comes into view. The CA found PRBL liable for Pleytos negligence pursuant to Article 2180 in relation to Article 2176 . Under Article 2180, when an injury is caused by the negligence of a servant or an employee, the master or employer is presumed to be negligent either in the selection or in the supervision of that employee. This presumption may be overcome only by satisfactorily showing that the employer exercised the care and the diligence of a good father of a family in the selection and the supervision of its employee. In fine, when the employee causes damage due to his own negligence while performing his own duties, there arises the juris tantum presumption that the employer is negligent, rebuttable only by proof of observance of the diligence of a good father of a family. Thus, in the selection of prospective employees, employers are required to examine them as to their qualifications, experience and service records. With respect to the supervision of employees, employers must formulate standard operating procedures, monitor their implementation and impose disciplinary measures for breaches thereof. These facts must be shown by concrete proof, including documentary evidence. Regarding PRBLs negligence, PRBL presented several documents in evidence to show the various tests and prequalification requirements imposed upon petitioner Pleyto before his hiring as a driver by PRBL. However, no documentary evidence was presented to prove that PRBL exercised due diligence in the supervision of its employees, including Pleyto. It was held that in order that the defense of due diligence in the selection and supervision of employees may be deemed sufficient and plausible, it is not enough for the employer to emptily invoke the existence of company guidelines and policies on hiring and supervision. As the negligence of the employee gives rise to the presumption of negligence on the part of the employer, the latter has the burden of proving that it has been diligent not only in the selection of employees but also in the actual supervision of their work. The mere allegation of the existence of hiring procedures and supervisory policies without anything more is decidedly not sufficient to overcome such presumption. 9. PCI Leasing and Finance, Inc., v. UCPB General Insurance Co., Inc., 557 SCRA 141 (2008) Facts: A Mitsubishi Lancer car owned by UCPB and insured by UCPB General Insurance Inc. was traversing the Laurel Highway in Lipa City when the car, then driven by Flaviano Isaac with Conrado Geronimo, the Asst. Manager of said bank, was hit and bumped by an 18-wheeler Fuso Tanker Truck owned by PCI Leasing allegedly leased to and operated by Superior Gas & Equitable Co., Inc. (SUGECO), and driven by its employee, defendant appellant Renato Gonzaga. The impact caused heavy damage to the Mitsubishi Lancer car resulting in an explosion of the rear part of the car. The driver and passenger suffered physical injuries as well. Worse, the driver Gonzaga continued on his way to his destination and did not bother to bring his victims to the hospital. Plaintiff-appellee paid the assured UCPB representing the insurance coverage of the damaged car. As the 18-wheeler truck is registered under the name of PCI Leasing, repeated demands were made by UCPB for payment of the aforesaid amounts. No payment was made so UCPB filed the present case. PCI Leasing, interposed the defense that it could not be held liable for the collision, since the driver of the truck, Gonzaga, was not its employee, but that of its co-defendant SUGECO since it was SUGECO, and not petitioner, that was the actual 78 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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operator of the truck, pursuant to a Contract of Lease signed by PCI and SUGECO. Petitioner, however, admitted that it was the owner of the truck in question. RTC ruled in favor of UCPB General Insurance. CA affirmed. MR was denied hence this petition. Issue: Whether PCI Leasing, as registered owner of a motor vehicle that figured in a quasi-delict may be held liable, jointly and severally, with the driver thereof, for the damages caused to third parties. Held: YES. The registered owner of the vehicle driven by a negligent driver may still be held liable under applicable jurisprudence involving laws on compulsory motor vehicle registration and the liabilities of employers for quasi-delicts under the CC. The principle of holding the registered owner of a vehicle liable for quasi-delicts resulting from its use is well-established in jurisprudence. Registration is required not to make said registration the operative act by which ownership in vehicles is transferred, as in land registration cases, because the administrative proceeding of registration does not bear any essential relation to the contract of sale between the parties but to permit the use and operation of the vehicle upon any public highway. The main aim of motor vehicle registration is to identify the owner so that if any accident happens, or that any damage or injury is caused by the vehicle on the public highways, responsibility therefor can be fixed on a definite individual, the registered owner. PRINCIPAL PURPOSE of motor vehicles regislation: (1) Identification of the vehicle and of the operator, in case of accident; and (2) As a deterrent from lax observance of the law and of the rules of conservative and safe operation. Should not the registered owner be allowed at the trial to prove who the actual and real owner is, and in accordance with such proof escape or evade responsibility and lay the same on the person actually owning the vehicle? NO. a registered owner allowed to evade responsibility by proving who the supposed transferee or owner is, it would be easy for him, by collusion with others or otherwise, to escape said responsibility and transfer the same to an indefinite person, or to one who possesses no property with which to respond financially for the damage or injury done. A registered owner who has already sold or transferred a vehicle has the recourse to a third-party complaint, in the same action brought against him to recover for the damage or injury done, against the vendee or transferee of the vehicle. The inconvenience of the suit is no justification for relieving him of liability; said inconvenience is the price he pays for failure to comply with the registration that the law demands and requires. The registered owner, the PCI Leasing, is primarily responsible for the damage caused to the vehicle of UCPB, but he PCI Leasing has a right to be indemnified by the real or actual owner of the amount that he may be required to pay as damage for the injury caused to the UCPB. For damage or injuries arising out of negligence in the operation of a motor vehicle, the registered owner may be held civilly liable with the negligent driver either 1) subsidiarily, if the aggrieved party seeks relief based on a delict or crime under Articles 100 and 103 of the RPC; or 2) solidarily, if the complainant seeks relief based on a quasi-delict under Articles 2176 and 2180. In case a separate civil action is filed, the long-standing principle is that the registered owner of a motor vehicle is primarily and directly responsible for the consequences of its operation, including the negligence of the driver, with respect to the public and all third persons. In contemplation of law, the registered owner of a motor vehicle is the employer of its driver, with the actual operator and employer, such as a lessee, being considered as merely the owner s agent. This being the case, even if a sale has been executed before a tortious incident, the sale, if unregistered, has no effect as to the right of the public and third persons to recover from the registered owner . The public has the right to conclusively presume that the registered owner is the real owner, and may sue accordingly. In this case, there is not even a sale of the vehicle involved, but a mere lease, which remained unregistered up to the time of the occurrence of the quasi- delict that gave rise to the case. Since a lease, unlike a sale, does not even involve a transfer of title or ownership, but the mere use or enjoyment of property, there is more reason, therefore, in this instance to uphold the policy behind the law, which is to protect the unwitting public and provide it with a definite person to make accountable for losses or injuries suffered in vehicular accidents. It is also important to emphasize that such principles apply to all vehicles in general, not just those offered for public service or utility. Court recognizes that the business of financing companies has a legitimate and commendable purpose. In earlier cases, it considered a financial lease or financing lease a legal contract though subject to the restrictions of the so-called Recto Law or Articles 1484 and 1485. PCI Leasing presented a lengthy discussion of the purported trend in other jurisdictions, which apparently tends to favor absolving financing companies from liability for the consequences of quasi-delictual acts or omissions involving financially leased property and adds that these developments have been legislated in our jurisdiction 79 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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in RA 8556 which provides that Financing companies shall not be liable for loss, damage or injury caused by a motor vehicle, aircraft, vessel, equipment, machinery or other property leased to a third person or entity except when the motor vehicle, aircraft, vessel, equipment or other property is operated by the financing company, its employees or agents at the time of the loss, damage or injury. However, the new law, R.A. No. 8556, notwithstanding developments in foreign jurisdictions, do not supersede or repeal the law on compulsory motor vehicle registration. No part of the law expressly repeals Section 5(a) and (e) of R.A. No. 4136, as amended, otherwise known as the Land Transportation and Traffic Code, to wit: Sec. 5. Compulsory registration of motor vehicles. (a) All motor vehicles and trailer of any type used or operated on or upon any highway of the Philippines must be registered with the Bureau of Land Transportation for the current year in accordance with the provisions of this Act. (e) Encumbrances of motor vehicles. Mortgages, attachments, and other encumbrances of motor vehicles, in order to be valid against third parties must be recorded in the Bureau (now the Land Transportation Office). Neither is there an implied repeal of R.A. No. 4136. Thus, the rule remains the same: a sale, lease, or financial lease, for that matter, that is not registered with the Land Transportation Office, still does not bind third persons who are aggrieved in tortious incidents, for the latter need only to rely on the public registration of a motor vehicle as conclusive evidence of ownership. A lease such as the one involved in the instant case is an encumbrance in contemplation of law, which needs to be registered in order for it to bind third parties. The non-registration of the lease contract between petitioner and its lessee precludes the former from enjoying the benefits under Section 12 of R.A. No. 8556. However they are not without recourse. They may resort to third-party complaints against their lessees or whoever are the actual operators of their vehicles. In the case at bar, there is, in fact, a provision in the lease contract between petitioner and SUGECO to the effect that the latter shall indemnify and hold the former free and harmless from any liabilities, damages, suits, claims or judgments arising from the latters use of the motor vehicle. Whether petitioner would act against SUGECO based on this provision is its own option. The burden of registration of the lease contract is minuscule compared to the chaos that may result if registered owners or operators of vehicles are freed from such responsibility. PCI Leasing pays the price for its failure to obey the law on compulsory registration of motor vehicles for registration is a pre-requisite for any person to even enjoy the privilege of putting a vehicle on public roads. 10. Aonuevo v. Court of Appeals, 441 SCRA 24 (2004) Facts: At around 9PM, Villagracia was traveling along Boni Ave on his bike , while Anonuevo , traversing the opposite lane, was driving his Lancer . The car was owned by P &G., the employer of Anonuevos brother , Jonathan. Aonuevo was in the course of making a left turn towards Libertad Street when the collision occurred. Villagracia sustained serious injuries as a result, which necessitated his hospitalization several times and forced him to undergo 4 operations. Villagracia sued for damages against P&G. and Anonuevo before the RTC . He also filed a criminal complaint against Anonuevo , but the latter was subsequently acquitted of the criminal charge . Trial on the civil action ensued and RTC rendered judgment against P &G and Anonuevo . CA affirmed the RTC Decision in toto . P&G and Anonuevo filed their respective appeals . P&Gs petition was denied by this Court . Anonuevos petition , on the other hand, was given due course. CA affirmed the factual findings of the RTC. Among them: that it was Aonuevos veh icle which had struck Villagracia; that Anonuevos vehicle had actually hit Villagracias left midthigh, thus causing a comminuted fracture; that as testified by eyewitness , Anonuevo was umaarangkada or speeding as he made the left turn into Libertad; that considering Anonuevos claim that a passenger jeepney was obstructing his path as he made the turn , Anonuevo had enough warning to control his speed ; and that Anonuevo failed to exercise the ordinary precaution , care and diligence required of him in order that the accident could have been avoided. Anonuevo proffers no exculpatory version of facts on his part , nor does he dispute the conclusions made by the RTC and the CA. Anonuevos arguments are especially fixated on a particular question of la w: whether Article 2185 should apply by analogy to non-motorized vehicles. In the same vein, Aonuevo insists that Villagracias own fault and negligence serves to absolve the former of any liability for damages . Anonuevo points out that Villagracias bi cycle had no safety gadgets such as a horn or bell, foot break or headlights, as invoked by a 1948 municipal ordinance. Nor was it duly registered with the Office of the Municipal Treasurer, as required by the same ordinance. Aonuevo claims that Villagracia violated traffic regulations when he failed to register his bicycle or install safety gadgets thereon. He posits that Article 2185 applies by analogy. 80 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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Article 2185. Unless there is proof to the contrary, it is presumed that a person driving a motor vehicle has been negligent if at the time of the mishap, he was violating any traffic regulation. Villagracia does not dispute these allegations , which he admitted during the trial , but directs our attention instead to the findings of Anonuevos own negli gence. Villagracia also contends that , assuming there was contributory negligence on his part, such would not exonerate Anonuevo from payment of damages . Issue: (1) Whether Art. 2185 which presumes negligence on the driver of a motor vehicle if he was violating a traffic regulation should apply to non-motorized vehicles. (2) Whether Villagracias negligence negates his claim for damages. Held: (1) NO. The provision was introduced for the first time in this jurisdiction with the adoption in New CC. Its applicability is expressly qualified to motor vehicles only, and there is no ground to presume that the law intended a broader coverage. Anonuevo points out that modern -day travel is more complex now than when the Code was enacted, the number and types of vehicles now in use far more numerous than as of then. He even suggests that at the time of the enactment of the Code, the legislators must have seen that only motor vehicles were of such public concern that they had to be specifically mentioned, yet today, the interaction of vehicles of all types and nature has inescapably become matter of public concern so as to expand the application of the law to be more responsive to the times. At the time Article 2185 was formulated, there existed a whole array of non-motorized vehicles ranging from humanpowered contraptions on wheels such as bicycles, scooters, and animal-drawn carts such as calesas and carromota. These modes of transport were even more prevalent on the roads of the 1940s and 1950s than they are today, yet the framers of the New CC chose then to exclude these alternative modes from the scope of Article 2185 with the use of the term motorized vehicles . If Anonuevo seriously contends that the application of Article 2185 be expanded due to the greater interaction today of all types of vehicles, such argument contradicts historical experience. The ratio of motorized vehicles as to non-motorized vehicles was significantly lower than as it stands today. A motorized vehicle operates by reason of a motor engine unlike a non-motorized vehicle, which runs as a result of a direct exertion by man or beast of burden of direct physical force. A motorized vehicle, unimpeded by the limitations in physical exertion, is capable of greater speeds and acceleration than non- motorized vehicles. At the same time, motorized vehicles are more capable of inflicting greater injury or damage in the event of an accident or collision. There long has been judicial recognition of the peculiar dangers posed by the motor vehicle. As far back as 1912, in Juanillo, the Court has recognized that an automobile is capable of great speed, greater than that of ordi nary vehicles hauled by animals, and beyond doubt it is highly dangerous when used on country roads, putting to great hazard the safety and lives of the mass of the people who travel on such roads. A driver of an automobile, under such circumstances, is required to use a greater degree of care than drivers of animals, for the reason that the machine is capable of greater destruction, and furthermore, it is absolutely under the power and control of the driver; whereas, a horse or other animal can and does to some extent aid in averting an accident. Motorists are required to exercise ordinary or reasonable care to avoid collision with bicyclists. While the duty of using ordinary care falls alike on the motorist and the rider or driver of a bicycle, it is obvious, for reasons growing out of the inherent differences in the 2 vehicles, that more is required from the former to fully discharge the duty than from the latter. Art. 2185 was not formulated to compel or ensure obeisance by all to traffic rules and regulations. If such were indeed the evil sought to be remedied or guarded against, then the framers of the Code would have expanded the provision to include non- motorized vehicles or for that matter, pedestrians. (2) NO. The existence of negligence in a given case is not determined by the personal judgment of the actor in a given situation, but rather, it is the law which determines what would be reckless or negligent . Anonuevo asserts that Villagracia was negligent as the latter had transgressed a municipal ordinance requiring the registration of bicycles and the installation of safety devices thereon. The generally accepted view is that violation of a statutory duty constitutes negligence, negligence as a matter of law, or, according to the decisions on the question, negligence per se, for the reason that non-observance of what the legislature has prescribed as a suitable precaution is failure to observe that care which an ordinarily prudent man would observe, and, when the state regards certain acts as so liable to injure others as to justify their absolute prohibition, doing the forbidden act is a breach of duty with respect to those who may be injured thereby ; or, as it has been otherwise expressed, when the standard of care is fixed by law, failure to conform to such standard is negligence, negligence per se or negligence in and of itself, in the absence of a legal excuse . Violation of an ordinance intended to promote safety is negligence. If by creating the hazard which the ordinance was intended to avoid it brings about the harm which the ordinance was intended to prevent, it is a legal cause of the harm. 81 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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The fact that other happenings causing or contributing toward an injury intervened between the violation of a statute or ordinance and the injury does not necessarily make the result so remote that no action can be maintained. The test is to be found not in the number of intervening events or agents, but in their character and in the natural and probable connection between the wrong done and the injurious consequence. The general principle is that the violation of a statute or ordinance is not rendered remote as the cause of an injury by the intervention of another agency if the occurrence of the accident, in the manner in which it happened, was the very thing which the statute or ordinance was intended to prevent. It cannot be denied that the statutory purpose for requiring bicycles to be equipped with headlights or horns is to promote road safety and to minimize the occurrence of road accidents involving bicycles. At face value, Villagracias mishap was precisely the danger sought to be guarded against by the ordinance he violated . However , it was proven that Anonuevo was speeding as he made the left turn, and such negligent act was the proximate cause of the accident. This reckless behavior would have imperiled anyone within the path of Anonuevos car as it turned into the intersection , whether they are fellow motorists, pedestrians, or cyclists. Even assuming that Anonuevo had failed to see Villagracia because the bicycle was not equipped with headlights, such lapse on the cyclists part would not have acquitted the driver of his duty to slow down as he proceeded to make the left turn. The bare fact that Villagracia was violating a municipal ordinance at the time of the accident may have sufficiently established some degree of negligence on his part, but such negligence is without legal consequence unless it is shown that it was a contributing cause of the injury. It is but indicative of Villagracias failure in fu lfilling his obligation to the municipal government, which would then be the proper party to initiate corrective action as a result . Such failure alone is not determinative of Villagracias negligence in relation to the accident. To determine if Villagracia was negligent, it is not sufficient to rely solely on the violations of the municipal ordinance, but imperative to examine Villagracias behavior in relation to the contemporaneous circumstances of the accident. The rule on negligence per se must admit qualifications that may arise from the logical consequences of the facts leading to the mishap. The doctrine (and Article 2185, for that matter) is undeniably useful as a judicial guide in adjudging liability, for it seeks to impute culpability arising from the failure of the actor to perform up to a standard established by a legal fiat. But the doctrine should not be rendered inflexible so as to deny relief when in fact there is no causal relation between the statutory violation and the injury sustained. 11. Lambert v. Heirs of Rey Castillon, 452 SCRA 285 (2005) Facts: Ray Castillon visited the house of his brother and borrowed his motorcycle. He then invited his friend Sergio and went to a roadtrip around Iligan City with Ray as the driver and Sergio as the backrider. After having supper and imbibing a bottle of beer, they traversed the highway towards Tambo at a high speed. However, upon reaching Brgy. Sto. Nino, they figured in an accident with a Tamaraw jeepney owned by Lambert and driven by Reynaldo. Apparently, the jeepney was travelling in the same direction but made a sudden left turn. The incident resulted in the death of Ray Castillon and injuries to Sergio. The trial court and the CA ruled in favor of Castillon, ruling that the proximate cause of the accident was due to the negligence of Reynaldo. Issue: Whether or not the proximate cause of the accident was due to Raynaldos negligence. Held: YES. When Reynaldo Gamot was approaching the side road, he slightly veered to the right for his allowance. Ray Castillon, who was following closely behind, instinctively veered to the left but it was also the moment when Reynaldo Gamot sharply turned to the left towards the side road. At this juncture both were moving obliquely to the left. Thus the motorcycle sliced into the side of the jeepney throwing the driver forward so that his forehead hit the angle bar on the left front door of the jeepney even as the motorcycle shot forward and the jeepney veered back to the right and sped away. This was also backed by testimonies that Reynaldo did not even stop for a second nor check for any following vehicles before turning left. Clearly, the abrupt and sudden left turn by Reynaldo, without first establishing his right of way, was the proximate cause of the mishap which claimed the life of Ray and injured Sergio. Proximate cause is defined as that which, in the natural and continuous sequence, unbroken by any efficient, intervening cause, produces the injury, and without which the result would not have occurred. The cause of the collision is traceable to the negligent act of Reynaldo for, as the trial court correctly held, without that left turn executed with no precaution, the mishap in all probability would not have happened. Lambert relies on the courts ruling in Raynera v. Hiceta. However the same is misplaced. That case also involved a motorcycle crashing into the left rear portion of another vehicle, and we declared therein that drivers of vehicles who bump the rear of another vehicle are presumed to be the cause of the accident, unless contradicted by other evidence. In Raynera, the death of the victim was solely attributable to his own negligence in bumping the rear of the 82 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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Atty. Jess Lopez

trailer truck which was traveling ahead of him at 20 to 30 KPH. Raynera, being the driver of the rear vehicle, had full control of the situation as he was in a position to observe the vehicle in front of him. The trailer truck therein did not make a sudden left turn as in the case at bar. Thus, the theory that drivers of vehicles who bump the rear of another vehicle are presumed to be the cause of the accident. However, in this case, the same has been sufficiently contradicted by evidence, which is the sudden left turn made by Reynaldo which proximately caused the collision. Castillon is also guilty of contributory negligence but only serves as a mitigation of the damages awarded. It was established that Ray, at the time of the mishap: (1) was driving the motorcycle at a high speed; (2) was tailgating the Tamaraw jeepney; (3) has imbibed one or two bottles of beer; and (4) was not wearing a protective helmet. These circumstances, although not constituting the proximate cause of his demise and injury to Sergio, contributed to the same result. b. Statutes and ordinances/administrative rules 1. Marinduque Iron Mines Agents, Inc., v. Workmens Compensation Commission, 99 Phil. 480 (1956) Facts: Mamador is an employee of MIMA. On Aug. 23, 1951, he boarded a haulage truck owned by MIMA with other employees and driven by Macunat. On its way to their place of work, while trying to overtake another truck on the company road, it turned over and hit a coconut tree. As a result, Mamador died. Macunat was convicted but could not pay the indemnity to Mamador heirs. For this reason, upon the heir s claims before the Workmens Compensation Commissioner, it ordered MIMA to pay referees award of compensation to said heirs. Thus, MIMA questions the order of the Commissioner on the grounds that 1) MIMA was not given opportunity to crossexamine; 2) Since Macunat was convicted and made to pay indemnity, a claim is barred based on the Workmens Compensation law; and 3) Mamador was notoriously negligent for violating the employers prohibition against laborers riding haulage trucks. Issue: Whether MIMA should pay said referees award to the Macunat heirs Held: YES. The law permits the Commissioner to take testimony without notice provided that ex parte evidence is reduced in writing and the adverse party is afforded the opportunity to rebut. Also, the criminal case was not a suit for damages against a third person which would bar the claimant from claiming under the Workmens Compensation Law. For the last part, there is no doubt that mere riding on a haulage truck or stealing a ride thereon is not negligence because transportation by truck is not dangerous per se. Also, violation of a rule promulgated by the Commission or board is not negligence per se but it may be evidence of negligence. This prohibition by MIMA could not be of a greater obligation than the rule of a Commission or board. And the Commissioner correctly considered this violation as possible evidence of negligence; but it declared that under the circumstances, the laborer could not be declared to have acted with negligence. Nevertheless, even granting there was negligence, it surely was not "notorious" negligence, which we have interpreted to mean the same thing as "gross" negligence implying "conscious indifference to consequences" "pursuing a course of conduct which would naturally and probably result in injury" "utter disregard of consequences." Getting or accepting a free ride on the company's haulage truck couldn't be gross negligence, because as the referee found, "no danger or risk was apparent." 2. Cipriano v. Court of Appeals, 263 SCRA 711 Facts: Elias S. Cipriano is the owner Mobilkote, which is engaged in the rustproofing of vehicles. On April 30, 1991, private respondent Maclin Electronics, Inc., through an employee, brought a 1990 model Kia Pride to petitioners shop for rustproofing. The vehicle was received in the shop under a Job Order which showed the date it was received for rustproofing as well its condition at the time. Neither the time of acceptance nor the hour of release, however, was specified. According to the Cipriano, the car was brought to his shop at 10AM of April 30, 1991 and was ready for release later that afternoon, as it took only 6 hours to complete the process of rustproofing. In the afternoon of May 1, 1991, fire broke out at the Lambat restaurant, which Cipriano also owned, adjoining his Mobilkote rustproofing shop. The fire destroyed both the shop and the restaurant, including the Kia Pride. The car had been kept inside the building, allegedly to protect it from theft. Cipriano claimed that despite efforts to save the vehicle, there was simply not enough time to get it out of the building, unlike 3 other cars which had been saved because they were parked near the entrance of the garage. 83 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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This prompted Maclin Electrinics to bring this suit for the value of its vehicle and for damages against Cipriano. It alleged that its vehicle was lost due to the negligence and imprudence of Cipriano, citing his failure to register his business with the DTI under P.D. No. 1572 and to insure it as required in the rules implementing the Decree. Cipriano invoked the following defenses: (1) he alleged that the loss was due to a fortuitous event, (2) He was not negligent, as he employed an electrician who regularly inspected the lighting in his restaurant and rustproofing shop and he claimed he had installed fire-fighting devices. (3) He further averred that private car was ready for release as early as afternoon of April 30, 1991 and that it was Maclins delay in claiming it that was the cause of the loss. (4) The material s and chemicals used for rustproofing are not inflammable and thus he could not be made to assume the risk of loss due to fire. Finally (5) he also claimed that he was not required to register his business with the Department DTI , because he was not covered by P.D. No. 1572. RTC and CA: failure of Cipriano to comply with P.D. No. 1572 is in effect a manifest act of negligence which renders him liable for the loss of the car even if the same was caused by fire. Issue: (1) Whether Cipriano was required to insure his business and the vehicles received by him in the course of his business; and (2) Whether his failure to do so constituted negligence, rendering him liable for loss due to the risk required to be insured against. Held: YES. We have already held that violation of a statutory duty is negligence per se. Ciprianos negligence is the source of his obligation. He is not being held liable for breach of his contractual obligation due to negligence but for his negligence in not complying with a duty imposed on him by law. It is therefore immaterial that the loss occasioned to Maclin was due to a fortuitous event, since it was Ciprianos negligence in not insuring against the risk which was the proximate cause of the loss. Under PD 1572 and its IRR, Cipriano is required to register with the DTI. And as a condition for such registration, Ministry Order 32 of the DTI requires covered enterprises to secure insurance coverage. Ministry Order 32 provides that consumer mechanical/industrial equipment stored for repair/service in the premises should be covered by an insurance policy for risks like theft, fire, flood, and loss. There is, thus, a statutory duty imposed on Cipriano and it is for his failure to comply with this duty that he was guilty of negligence rendering him liable for damages to Maclin. While the fire in this case may be considered a fortuitous event, this circumstance cannot exempt him from liability for loss. 3. FF Cruz and Co., Inc., v. Court of Appeals, G.R. No. 52732, August 29, 1988 See previous Doctrine: Even without applying the doctrine of res ipsa loquitur, FF Cruzs failure to construct a firewall in accordance with city ordinances would suffice to support a finding of negligence. In the instant case, with more reason should FF Cruz be found guilty of negligence since it had failed to construct a firewall between its property and private respondents' residence which sufficiently complies with the pertinent city ordinances. The failure to comply with an ordinance providing for safety regulations had been ruled by the Court as an act of negligence. 4. Sanitary Steam Laundry (SSL) v. Court of Appeals, 300 SCRA 20 (1998) Facts: This case involves a collision between a Mercedes Benz panel truck of SSL and a Cimarron, which caused the death of 3 persons and the injuries of several others. All the victims were riding in the Cimarron. One of those who died was the driver. The RTC found SSLs driver to be responsible for the vehicular accident and accordingly held SSL liable to private respondents. CA affirmed. The passengers of the Cimarron were mostly employees of the Project Management Consultants, Inc. (PMCI) who just visited the construction site of a company project in Lian. Batangas. The other passengers were family members and friends whom they invited to an excursion to the beach after the visit to the construction site. The group stayed at the beach until 5:30 PM., when they decided to go back to Manila. The Cimarron was owned by Salvador Salenga, father of one of the employees of PMCI. Driving the vehicle was Rolando Hernandez. At about 8:00 p.m., as it was traveling along Aguinaldo Highway in Cavite on its way back to Manila, the Cimarron was hit on its front portion by SSLs panel truck, which was traveling in the opposite direction. The panel truck was on its way to SSLs plant in Dasmarinas, Cavite after delivering some linen to the Makati Med. The driver, Herman Hernandez, claimed that a jeepney in front of him suddenly stopped. He said he stepped on the brakes to avoid hitting the jeepney and that this caused his vehicle to swerve to the left and encroach on a portion of the opposite lane. As a result, his panel truck collided with the Cimarron on the north-bound lane.

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Atty. Jess Lopez

The driver of the Cimarron, Rolando Hernandez, and two of his passengers, namely, Jason Bernabe and Dalmacio Salunoy, died. Several of the other passengers of the Cimarron were injured and taken to various hospitals. Private respondents filed this civil case for damages before the then CFI of Rizal against SSL. RTC of Makati awarded the damages incurred by the SSL as proved in the trial. CA affirmed. Issue: Whether SSL is liable as an employer Held: YES. It has not been shown how the alleged negligence of the Cimarron driver contributed to the collision between the vehicles. Indeed, SSL has the burden of showing a causal connection between the injury received and the violation of the Land Transportation and Traffic Code. He must show that the violation of the statute was the proximate or legal cause of the injury or that it substantially contributed thereto. SSL says that driving an overloaded vehicle with only one functioning headlight during nighttime certainly increases the risk of accident, that because the Cimarron had only one headlight, there was decreased visibility, and that the fact that the vehicle was overloaded and its front seat overcrowded decreased [its] maneuverability. Mere allegations such as these are not sufficient to discharge its burden of proving clearly that such alleged negligence was the contributing cause of the injury. Based on the evidence in this case, there was no way either driver could have avoided the collision. The panel truck drivers testimony is consistent with the testimonies of private respondents that the panel truck went out of control and simply smashed into the Cimarron in which they were riding. Thus, Nicanor Bernabe III testified. Charito Estolano, another passenger who was seated in front of the Cimarron, similarly testified that they just saw the panel truck hurtling toward them. The foregoing testimonies show that the driver of the panel truck lost control of his vehicle and bumped the Cimarron. Hence, even if both headlights of the Cimarron were lighted, it would have been bumped just the same because the driver of the panel truck could not stop despite the fact that he applied the brakes . SSLs contention that because of decreased visibility, caused by the fact that the Cimarron allegedly had only one headlight on, its driver failed to see the Cimarron is without any basis in fact. Only its driver claimed that the Cimarron had only one headlight on. The police investigator did not state in his report or in his testimony that the Cimarron had only one headlight on. Nor is there any basis in fact for SSLs contention that because of overcrowding in the front seat of the Cimarron there was decreased manueverability which prevented the Cimarron driver from avoiding the panel truck. There is absolutely no basis for this claim. There is nothing in the testimonies of the passengers of the Cimarron, particularly Charito Estolano, who was seated in front, which suggest that the driver had no elbow room for maneuvering the vehicle. To the contrary, from the testimony of some of the witnesses, it appears that the d river of the Cimarron tried to avoid the collision but because of the emergency created by the speeding panel truck coming from the opposite direction he was not able to fully move his Cimarron away from the path of the oncoming vehicle. That no maneuvering which the Cimarron driver could have done would have avoided a collision with the panel truck, given the suddenness of the events. Clearly, the overcrowding in the front seat was immaterial. The proximate cause of the accident was the negligence of SSLs driver. As the trial court noted, the swerving of SSLs panel truck to the opposite lane could mean not only that SSLs driver was running the vehicle at a very high speed but that he was tailgating the passenger jeepney ahead of it as well. SSLs driver claimed that the distance between the panel truck and the passenger jeepney in front was about 12 meters. If this was so, he would have had no difficulty bringing his panel truck to a stop. It is very probable that the driver did not really apply his brakes (which is why there were no skid marks) but that finding the jeepney in front of him to be in close proximity, he tried to avoid hitting it by swerving his vehicle to the left. In the process, however, he invaded a portion of the opposite lane and consequently hit the Cimarron. Indeed, the panel truck driver testified that his vehicle was running at the speed of 60 MPH. He tried to correct himself when asked by SSLs counsel whether the panel truck speedometer indicated miles or kilometers by saying that the speedometer measured kilometers and not miles, but on cross examination his testimony got muddled. Be that as it may, whether the driver meant 60 MPH (which could be 96.77 kilometers per hour) or 60 KPH, the fact remains that the panel truck was over-speeding because the maximum allowable speed for trucks and buses on open country roads, such as the Aguinaldo Highway in Imus, Cavite, is only 50 KPH. The case of Bayasen, which petitioner invokes, cannot apply to this case. There was no swerving of the vehicle in that case but skidding, and it was caused by the fact that the road was wet and slippery. In this case, the road was dry and 85 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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safe. There was no reason for the vehicle to swerve because of road condition. The only explanation for this occurrence was human error. SSLs reliance on the McKee is also misplaced. In that case, the driver of the vehicle at fault, a truck, had an opportunity to avoid the collision but he ignored the signals from the other vehicle, a car, to slow down and allow it to safely pass the bridge. In this case, there was no such opportunity given the Cimarron on the night of the mishap. Everything happened so quickly that before the passengers of the Cimarron knew it , the vehicle had been bumped by the truck. SSLs failure to require submission of these documents does not mean that it did not exercise due diligence in the selection and supervision of its employees. It likewise contends that the CAs position that it failed to exercise due diligence in the selection and supervision of its employees by not requiring its prospective employees to undergo psychological and physical tests before employment has no basis in law because there is no law requiring such tests prior to hiring employees. The CA did not say that SSLs failure to submit NBI and police clearances of its driver was proof that petitioner failed to exercise due diligence in the selection of its employees . What the CA said was that SSLs policy of requiring prospective employees to submit NBI and police clearance and to have at least 2 years experience as driver prior to employment was not enough to prove the exercise of due diligence and that even this policy petitioner failed to prove by its failure to present the drivers NBI and police records during the tria l. With respect to the requirement of passing psychological and physical tests prior to his employment, although no law requires it, such circumstance would certainly be a reliable indicator of the exercise of due diligence. Indeed, driving exacts a more than usual toll on the senses. Accordingly, it behooves employers to exert extra care in the selection and supervision of their employees. They must go beyond the minimum requirements fixed by law. In this case, David Bautista, the office manager of SSL in its Dasmarinas plant , said that it has a policy of requiring job applicants to submit clearances from the police and the NBI. In the case of applicants for the position of driver they are required to have at least 2 years driving experience and to be holders of a professional drivers license for at least two years. But the supposed company policies on employment were not in writing . Nor did Bautista show in what manner he supervised the drivers to ensure that they drove their vehicles in a safe way. (iv) Dangerous weapons and substances

Civil Code o Article 2188 (Memorize)

1. Araneta v. Arreglado, 104 Phil. 529 (1958) \ Facts: Araneta was talking with other Ateneans, seated atop a low ruined wall bordering Dakota Street in Manila. Arreglado, a former Atenean, passed by. The others called Dario and talked with him; they twitted and made kanchaw him on his leaving the Ateneo and enrolling in De La Salle. Arreglado resented the banter and pulled out a Japanese Lugar pistol, licensed in the name of his father. He fired it at Araneta, who was hit in the lower jaw. His friends took him to the infirmary and later to the Singian Hospital. He survived, but was inhibited and became morose. Arreglado pleaded guilty to frustrated homicide, but being only 14 years old and pursuant to Article 80 of the RPC, he was committed to the care of Mr. Lerma. Because of his good conduct, the Social Welfare Administrator discharged him and quashed the criminal case. An action was then instituted against Arreglado and his parents for damages. The CFI found Arreglados father negligent in allowing his son access to the pistol; they were sentenced to Pay P3,943. The Aranetas appealed, wanting P112,000. Issue: Whether or not the damages awarded was proper Held: INADEQUATE. In allowing not more than P1,000 as compensation for the "permanent deformity and something like an inferiority complex" as well as for the "pathological condition on the left side of the jaw" caused to said plaintiff, the court below overlooked the clear evidence on record that to arrest the degenerative process taking place in the mandible and restore the injured boy to a nearly normal condition, surgical intervention was needed, for which the doctor's charges would amount to P3,000, exclusive of hospitalization fees, expenses and medicines. Furthermore, the operation, according to Dr. Dio, would probably have to be repeated in order to effectuate a complete cure, while removal of the scar on the face obviously demanded plastic surgery. We are not impressed by the reasoning of the court a quo in refusing to consider the cost of plastic treatment as a proper element of the indemnity for damages. It argued that if this was really necessary it is peculiar that the father, Manuel S. Araneta, would have allowed himself to wait for the outcome of this case in order to secure funds to bring his son to 86 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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Atty. Jess Lopez

America; it is admitted that plaintiff is a man of much more than moderate means and no father in his position would have let pass the present situation; he would without loss of time, have taken his son to America, cost what it may, if it was necessary; and the fact that he has waited and waited in the opinion of the court would prove that after all plastic surgery was not and is not very necessary. The father's failure to submit his son to a plastic operation as soon as possible does not prove that such treatment is not called for. The damage to the jaw and the existence of the scar in Benjamin Araneta's face are physical facts that can not be reasoned out of existence. That the injury should be treated in order to restore him as far as possible to his original condition is undeniable. The father's delay, or even his negligence, should not be allowed to prejudice the son who has no control over the parent's action nor impair his right to a full indemnity. We do not believe that plaintiffs-appellants should recover the cost of a plastic operation and surgical treatment in the US, since their own experts asserted that the operation could be competently performed here by local practitioners. Still, taking into account the necessity and cost of corrective measures to fully repair the damage; the pain suffered by the injured party; his feelings of inferiority due to consciousness of his present deformity, as well as the voluntary character of the injury inflicted; and further considering that a repair, however skillfully conducted, is never equivalent to the original state, we are of the opinion that the indemnity granted by the trial court should be increased to a total of P18,000. It is also the hope of the Court that the award in the present case will remind licensed possessors of firearms of their peremptory duty to adequately safeguard such dangerous weapons at all times, and to take all requisite measures to prevent minors and other unauthorized parties from having access thereto. Competent observers have recently called attention to the fact that the growing teenage hooliganism in our society is principally due to parent's complacency in and neglect of their progeny. Wherefore, the decision appealed from is affirmed with the modification that plaintiff Benjamin Araneta shall recover damages in the amount of P18,000.00 from defendants Dario Arreglado and his parents Mr. and Mrs. Juan Arreglado, who shall answer in solidum for the payment of the indemnity, pursuant to Article 2194.

III.

DEFENSES A. Plaintiffs negligence is the proximate cause of injury Civil Code o Article 2179 (Memorize)

1. PLDT v. Court of Appeals, G.R. No. 57079, September 12, 1989 Facts: The case is about an action for damages instituted by Sps Esteban (private respondent) against PLDT for the injuries they sustained in the evening of July 1968 when their jeep ran over a mound of earth and fell into an open trench, an excavation allegedly undertaken by PLDT for the installation of its underground conduit system. Antonio Esteban failed to notice the open trench which was left uncovered because of the creeping darkness and the lack of any warning light or signs. Gloria Esteban allegedly sustained injuries on her arms, legs and face, and a permanent scar on her cheek, while her husband suffered cut lips. Moreover, the windshield of the jeep was shattered. PLDT contends that the injuries sustained by Spouses were the result of their own negligence and that the entity which should be held responsible, if at all, is L.R. Barte and Company, an independent contractor which undertook the construction of the manhole and the conduit system. PLDT filed a third-party complaint against Barte. Barte claimed that it had complied with the terms of its contract with PLDT by installing the necessary and appropriate standard signs in the vicinity of the work site, with barricades at both ends of the excavation and with red lights at night along the excavated area to warn the traveling public of the presence of excavations. Trial court rendered a decision in favor of Spouses ordering PLDT to pay, and ordering Barte to reimburse whatever amount paid by PLDT. Both PLDT and Spouses appealed. CA reversed holding that Spouses were negligent and consequently absolving PLDT from the claim for damages. Thereafter, CA promulgated its resolution affirming in toto the original decision of the lower court. Hence this petition for review on certiorari. Issue: Whether PLDT is liable for negligence. Held: NO. The accident which befell he Spouses was due to the lack of diligence of Antonio Esteban and was not imputable to negligent omission on the part of PLDT. Records show that: First. Estabans jeep was running along the inside lane of Lacson S treet. If it had remained on that inside lane, it would not have hit the ACCIDENT MOUND. Evidence shows tiremarks that the ACCIDENT MOUND was hit by the jeep 87 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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swerving from the left that is, swerving from the inside lane. The accident was not due to the absence of warning signs, but to the unexplained abrupt swerving of the jeep from the inside lane. Second. That Spouses jeep was on the inside lane before it swerved to hit the ACCIDENT MOUND could have been corroborated by a picture showing Lacson Street to the south of the ACCIDENT MOUND. The ditches along Lacson Street had already been covered except the 3 or 4 meters where the ACCIDENT MOUND was located. Evidence shows that the ditches on Lacson Street north of the ACCIDENT MOUND had already been covered, but not in such a way as to allow the outer lane to be freely and conveniently passable to vehicles. The situation could have been worse to the south of the ACCIDENT MOUND for which reason no picture of the ACCIDENT MOUND facing south was taken. Third. Spouses jeep was not running at 25 KPH as claimed. At that speed, he could have braked the vehicle the moment it struck the ACCIDENT MOUND. It would not have climbed the ACCIDENT MOUND several feet as indicated by the tiremarks. Therefore, it must have been running quite fast. If the jeep had been braked at 25 KPH, they would not have been thrown against the windshield and they would not have suffered their injuries. Fourth. With the drizzle, he should not have run on dim lights, but should have put on his regular lights which should have made him see the ACCIDENT MOUND in time. If he was running on the outside lane at 25 KPH his failure to see the ACCIDENT MOUND in time to brake the car even on dim lights was negligence on his part . The ACCIDENT MOUND was relatively big and visible. If he did not see the ACCIDENT MOUND in time, he would not have seen any warning sign either. He knew of the existence and location of the ACCIDENT MOUND, having seen it many previous times. With ordinary precaution, he should have driven his jeep on the night of the accident so as to avoid hitting the ACCIDENT MOUND. The above findings clearly show that the negligence of Antonio Esteban was not only contributory to his injuries and those of his wife but goes to the very cause of the mishap and thereby precludes their right to recover damages. By exercising reasonable care and prudence, Antonio Esteban could have avoided the injurious consequences of his act, even assuming arguendo that there was some alleged negligence on the part of Esteban. The presence of warning signs could not have completely prevented the accident; the only purpose of said signs was to inform and warn the public of the presence of excavations on the site. Estabans already knew of the presence of said excavations. It was not the lack of knowledge of these excavations which caused the jeep to fall into the excavation but the unexplained sudden swerving of the jeep from the inside lane towards the accident mound. The omission to perform a duty, such as the placing of warning signs on the site of the excavation, constitutes the proximate cause only when the doing of the said omitted act would have prevented the injury. They cannot charge PLDT for their injuries where their own failure to exercise due and reasonable care was the cause thereof. It is both a societal norm and necessity that one should exercise a reasonable degree of caution for his own protection. Furthermore, Esteban had the last clear chance or opportunity to avoid the accident, notwithstanding the negligence he imputes to PLDT. As a resident of Lacson Street, he passed on that street almost everyday and had knowledge of the presence and location of the excavations there . It was his negligence that exposed him and his wife to danger, hence he is solely responsible for the consequences of his imprudence. Lastly, there is insufficient evidence to prove any negligence on the part of PLDT. Spouses Esteban only presented the self-serving testimony of Esteban and the unverified photograph of merely a portion of the scene of the accident. The absence of a police report of the incident and the non-submission of a medical report from the hospital where Spouses were allegedly treated have not even been satisfactorily explained. Whosoever relies on negligence for his cause of action has the burden in the first instance of proving the existence of the same if contested, otherwise his action must fail. 2. Kim v. Philippine Aerial Taxi Co., Inc. , G.R. No. 39309, November 24, 1933 Facts: Teh Le Kim bought in Manila a passenger ticket for a flight to Iloilo in one of the PATCO's hydroplanes.The engine of the plane Mabuhay, in which he was to make the flight, was not working satisfactorily. Thus, Kim had to wait for some time. While the engine was being tested, Kim saw how it was started by turning the propeller repeatedly and how the man who did it ran away from it each time in order not to be caught by the said propeller. Before the plane Mabuhay was put in condition for the flight, the plane Taal arrived and it was decided to have Kim make the flight therein. Kim and his companion were carefully carried from the beach to the plane, entering the same by the rear or tail end, and were placed in their seats to which they were strapped. Later, they were shown how the straps could be tightened or loosened in case of accident and were instructed further not to touch anything in the plane. The plane landed on the waters of Guimaras Strait, in front of Iloilo, and taxied toward the beach until its pontoons struck bottom, when the plane stopped. The pilot shut off the gasoline feed pipe, permitting the engine, however, to continue to function until all the gasoline was drained from the feed pipe and carburetor. This operation was necessary in accordance with the established practice of aviation in order to avoid danger of fire which would exist if the pipes and carburetor remained full of gasoline, and to prevent the sudden cooling of the engine which might cause serious damage, especially to the valves. 88 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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At the moment the pontoons touched bottom and while the pilot was signalling to the banca (to stay away from propellers because it was dangerous), Kim unfastened the straps around him and, not even waiting to put on his hat, climbed over the door to the lower wing, went down the ladder to the pontoon and walked along the pontoon toward the revolving propeller. The propeller first grazed his forehead and, as he threw up his arm, it was caught by the revolving blades thereof and so injured that it had to be amputated. Bohn and Garrett of Warner, Barnes & Co., consignees of the PATCO in Iloilo, were on the beach to meet the plane and to make arrangements for the disembarking of the passengers. Upon seeing Kim walking toward the propeller, they shouted frantically and motioned to him to keep away from it, but the Kim took no heed of them. The usual procedure in discharging passengers from a hydroplane is to wait until the propeller stops , then turn the plane around by hand so as to have the rear or tail and thereof towards the beach, and then take the passengers to shore in a banca. The pilot in charge of the plane has had 14 years experience. Issue: Whether PATCO is liable for negligence. Held: NO. The plane arrived at the destination with nothing more left to do but to take Kim and his companion, safe and sound, ashore. In order to do this, it was necessary to wait for the propeller to stop, turn the rear or tail end of the plane towards the shore, take the passengers out by the aforesaid rear or tail end thereof, place them in a banca, and take them ashore. By sheer common sense, Kim ought to know that a propeller, be it that of a ship or of an aeroplane, is dangerous while in motion and that to approach it is to run the risk of being caught and injured thereby . He ought to know furthermore that inasmuch as the plane was on the water, he had to wait for a banca to take him ashore. Notwithstanding the shouts and warning signals given him from the shore, Kim, not being a man of ordinary prudence, hastily left the cabin of the plane, walked along one of the pontoons and directly into the revolving propeller, while the banca, which was to take him ashore was still some distance away and the pilot was instructing the boatman to keep it at a safe distance from the plane. Kim acted with reckless negligence in approaching the propeller while it was still in motion, and when the banca, was not yet in a position to take him. That Kims negligence alone was the direct cause of the accident, is so clear that it is not necessary to cite aut horitative opinions to support the conclusion that the injury to his right arm and the subsequent amputation thereof were due entirely and exclusively to his own imprudence and not to the slightest negligence attributable to the defendant entity or to its agents. He alone should suffer the consequences of his act. 3. American Express International, Inc., v. Cordero, G.R. No. 138550, October 14, 2005 Facts: AMEX is a foreign corporation that issues charge cards to its customers which the latter uses to purchase goods and services at accredited merchants worldwide. Nila Cordero, wife of respondent was one such holder. An extension card was also issued to her husband, Noel Cordero. Sometime after, respondent together with his wife and relatives went on a holiday trip to HK. During the trip, they went to Watsons Chemist Shop. Noel bought some goods and handed to the sales clerk his AMEX extension card. The sales clerk verified the card by making a telephone call to the AMEX Office in Hong Kong. Its representative said he wants to talk to respondent in order to verify the latters identity, pursuant to the procedure observed under the Inspect Airwarn Support System (IASS). However, respondent refused. Due to respondents refusal, Susan Chong, the store manager , emerged from behind the counter and informed respondent that she had to confiscate the card. Thereupon, she cut respondents AMEX card in half with a pair of scissors. This, according to respondent, caused him embarrassment and humiliation considering that it was done in front of his family and the other customers lined up at the check-out counter. Hence, Nilda had to pay for the purchases using her own AMEX card. Nilda called up AMEXs office in Hong Kong where it was learned through the Senior Authori zed that a person in HK attempted to use a charge card with the same number as respondents card. The HK AMEX Office called up respondent and after determining that he was in Manila and not in HK, placed his card under the IASS (a system used by AMEX to protect both the company and its cardholders from fraudulent use of their charge cards; once a card suspected of unauthorized use is placed in the system, the person to whom the card is tendered must verify the identity of the holder. If the true identity of the card owner is established, the card is honored and the charges are approved; otherwise the card is revoked or confiscated.). Respondent filed with the RTC a complaint for damages against AMEX. The RTC ruled in favor of Cordero. Petitioner appealed. 89 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013 Issue: Whether or not AMEX is liable to Cordero for the humiliation suffered by the latter.

Atty. Jess Lopez

Held: NO. Respondent anchors his cause of action on Article 2176. In order that an obligation based on quasi-delict may arise, there must be no pre-existing contractual relation between the parties. But there are exceptions. There may be an action for quasi-delict notwithstanding that there is a subsisting contract between the parties . A liability for tort may arise even under a contract, where tort is that which breaches the contract. Stated differently, when an act which constitutes a breach of contract would have itself constituted the source of a quasi-delictual liability, the contract can be said to have been breached by tort, thereby allowing the rules on tort to apply. Furthermore, to constitute quasi-delict, the fault or negligence must be the proximate cause of the damage or injury suffered by the plaintiff. Proximate cause is 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. Proximate cause is determined by the facts of each case upon mixed considerations of logic, common sense, policy and precedent. As explained by respondent himself, he could have used his card upon verification by the sales clerk of Watson that indeed he is the authorized cardholder. This could have been accomplished had respondent talked to AMEXs representative, enabling the latter to determine that respondent is indeed the true holder of the card. Clearly, no negligence which breaches the contract can be attributed to AMEX . If at all, the cause of respondents humiliation and embarrassment was his refusal to talk to AMEXs representative. There was testimony to that effect which showed that when Watson Company called AMEX for authorization, AMEX representative requested that he talk to Mr. Cordero but he refused to talk to any representative of AMEX. AMEX could not prove then that he is really the real card holder. Additionally, according to the terms of the Cardmember Agreement, AMEX can revoke respondents card without notice. Again the subject card would not have been confiscated and cut had respondent talked to AMEXs representative and identified himself as the genuine cardholder. Clearly, there was no negligence on the part of the AMEX. 4. Cayao-Lasam v. Spouses Ramolete, G.R. No. 159132, December 18, 2008 Facts: Editha Ramoleta was 3 mos pregnant. She was brought to Lorma Med Center in La Union due to vaginal bleeding. Upon advice of Dr. Lasam, she was admitted. After undergoing a pelvic sonogram, it was revealed that her fetus had a weak heart. The following day, another sonogram was conducted and showed no fetal movement. Due to the persistent and profuse vaginal bleeding, she was made to undergo a Dilatation and Curettage Procedure (D&C) or raspa. After the procedure, she was discharged the next day on July 31, 1994 with instructions from Dr. Laksa to return for a check-up after 4 days. Ramolete did not show up on said date. On Sep 16, 1994, Ramolete was brought to the hospital as she suffered from vomiting and severe abdominal pain. It was later found that there was a dead fetus in her womb. As such, her uterus had ruptured and had to undergo a hysterectomy. As a result, she can no longer bear a child. Filed an administrative case with the Professional Regulation Commission (PRC) for gross negligence and malpractice. PRC dismissed the case but, on appeal, it reversed itself and caused the revocation of Dr . Lasams license. Upon the latters appeal to the CA via Rule 43, it was dismissed because PRC was apparently not enumerated as one of the quasi judicial agencies in Rule 43. Hence, this appeal. Issue: (1) Whether mode of appeal was correct (NOT IMPORTANT) (2) Whether Dr. Lasam is guilty of medical malpractice. (1) RULE 43 was proper. PRC can be considered by analogy. (2) NOT LIABLE. Medical malpractice is a particular form of negligence which consists in the failure of a physician or surgeon to apply to his practice of medicine that degree of care and skill which is ordinarily employed by the profession generally, under similar conditions, and in like surrounding circumstances. In order to successfully pursue such a claim, a patient must prove that the physician or surgeon either failed to do something which a reasonably prudent physician or surgeon would not have done, and that the failure or action caused injury to the patient. The 4 elements involved in malpractice suits are: duty, breach, injury, proximate cause. To prove these, expert testimony is required. In the present case, Ramolete did not present any expert testimony to support their claim that Dr. Lasam failed to do something which a reasonably prudent physician or surgeon would have done. On the other hand, Lasam presented the testimony of Dr. Augusto M. Manalo, who was clearly an expert on the subject as he specializes in gynecology and obstetrics, authored and co-authored various publications on the subject, and is a professor at the UP. Manalo claimed that the raspa procedure was not the proximate cause of the rupture of Ramoletes uterus which resulted to the hysterectomy. 90 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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Further, Manalo testified that the raspa procedure was conducted in accordance with the standard practice, with the same level of care that any reasonably competent doctor would use to treat a condition under the same circumstances, and that there was nothing irregular in the way the petitioner dealt with Editha. Medical malpractice is often brought as a civil action for damages under Article 2176 of which proximate cause between the negligence and the injury is one of the requisites that need be proven. 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. An injury or damage is proximately caused by an act or a failure to act, whenever it appears from the evidence in the case that the act or omission played a substantial part in bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission. In this case, when Ramolete was discharged after the raspa on July 31, 1994, Lasam advised her to return 4 days later. However, she failed to do so. This being the case, the chain of continuity as required in order that the doctrine of proximate cause can be validly invoked was interrupted. Had she returned, the respondent could have examined her thoroughly. Also, Dr. Manalo testified that assuming there was in fact a misdiagnosis, the same would have been rectified if Editha followed the Ramoletes order to return for a check-up. Ramolete omitted the diligence required by the circumstances which could have avoided the injury. The omission in not returning for a follow-up evaluation played a substantial part in bringing about her own injury. Had Editha returned, Lasam could have conducted the proper medical tests and procedure necessary to determine her health condition and applied the corresponding treatment which could have prevented the rupture of her uterus. The raspa procedure having been conducted in accordance with the standard medical practice, it is clear that her omission was the proximate cause of her own injury and not merely a contributory negligence on her part. Contributory negligence is the act or omission amounting to want of ordinary care on the part of the person injured, which, concurring with the defendants negligence, is the proximate cause of the injury. Where the immediate cause of an accident resulting in an injury is the plaintiffs own act, which contributed to the principal occurrence as one of its determining factors, he cannot recover damages for the injury. Again, based on the evidence presented, in which no negligence can be attributed to the Lasam, the immediate cause of the accident resulting in Ramoletes injury was her own omission when she did not return for a follow-up check up, in defiance of Lasams orders. The immediate cause of Ramoletes injury was her own act; thus, she cannot recover damages from the injury. 5. Pantaleon v. American Express International, Inc., G.R. No. 174269, August 25, 2010 Facts: In October 1991, Pantaleon, together with his wife and kids went on a guided Euro tour. The group began their sightseeing at around 8:50 AM with a trip to the Coster Diamond House (Coster). To have enough time to take a guided city tour of Amsterdam before their departure scheduled on that day, the tour group planned to leave Coster by 9:30 a.m. at the latest. While at Coster, Mrs. Pantaleon decided to purchase some diamond pieces worth a total of $13K. Pantaleon presented his AMEX credit card to the sales clerk to pay for this purchase. He did this at around 9:15AM. At around 9:40AM., Coster had not received approval from AMEX for the purchase so Pantaleon asked the store clerk to cancel the sale . The store manager, however, convinced Pantaleon to wait a few more minutes. Subsequently, the store manager informed Pantaleon that AMEX was asking for bank references; Pantaleon responded by giving the names of his Philippine depository banks. 45 minutes after Pantaleon presented his credit card, AMEX still had not approved the purchase. Since the city tour could not begin until the Pantaleons were onboard the tour bus, Coster decided to release the purchased items to Pantaleon even without AMEXs approval. From the records, it appears that after Pantaleons purchase was transmitted for approval to AMEXs Amsterdam office at 9:20 a.m.; was referred to AMEXs Manila office at 9:33 a.m.; and was approved by the Manila office at10:19 a.m. At 10:38 a.m., AMEXs Manila office finally transmitted the Approval Code to AMEXs Amsterdam office. In all, it took AMEX a total of 78 mins to approve Pantaleons purchase and to transmit the approval to the jewelry store. After the trip to Europe, the Pantaleon family proceeded to the US. Again, Pantaleon experienced delay in securing approval for purchases using his AMEX credit card on 2 separate occasions. Upon return to Manila, Pantaleon sent AMEX a letter demanding an apology for the humiliation and inconvenience he and his family experienced due to the delays in obtaining approval for his credit card purchases. AMEX responded by explaining that the delay in 91 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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Amsterdam was due to the amount involved the charged purchase of $13K deviated from Pantaleons established charge purchase pattern. Dissatisfied with this explanation, Pantaleon filed an action for damages against the AMEX. RTC ruled in favor of Pantaleon. The CA reversed. The SC then affirmed the RTC decision and held that AMEX was guilty of mora solvendi, or debtors default. AMEX, as debtor, had an obligation as the credit provider to act on Pantaleons purchase requests, whether to approve or disapprove them, with timely dispatch. Based on the evidence on record, Court found that AMEX failed to timely act on Pantaleons purchases. The decision was based mainly on the testimony of AMEXs credit authorized personnel who testified that the approval time for credit card charges would be 3 to 4 seconds under regular circumstances; but in Pantaleons case, it took AMEX 78 minutes to approve the Amsterdam purchase. AMEX now files an MR questioning the said decision. Amex claims that the transaction necessarily required the carefully review Pantaleons credit history and bank reference (because of the large amount of the transaction and that it deviated from Pantaleons usual spending practices). As such, it was only in line wit hthe extraordinary diligence required of banks that it conduct such inquiry, to protect the interest both if Amex and Pantaleon. Issue: Whether or not AMEX was negligent. Held: NO. E-credit card transaction involves 3 contracts, namely: (a) the sales contract between the credit card holder and the merchant or the business establishment which accepted the credit card; (b) the loan agreement between the credit card issuer and the credit card holder; and lastly, (c) the promise to pay between the credit card issuer and the merchant or business establishment. When a credit card company gives the holder the privilege of charging items at establishments associated with the issuer, a necessary question in a legal analysis is when does this relationship begin? There are 2 diverging views on the matter. First view: each credit card transaction is considered a separate offer and acceptance, and thus the mere issuance of a credit card did not create a contractual relationship with the cardholder. Second view: the card membership agreement itself is a binding contract between the credit card issuer and the card holder. In our jurisdiction, we generally adhere to the 2nd view, recognizing the relationship between the credit card issuer and the credit card holder as a contractual one that is governed by the terms and conditions found in the card membership agreement. This contract provides the rights and liabilities of a credit card company to its cardholders and vice versa. A card membership agreement is a contract of adhesion as its terms are prepared solely by the credit card issuer, with the cardholder merely affixing his signature signifying his adhesion to these terms. This circumstance, however, does not render the agreement void; we have uniformly held that contracts of adhesion are as binding as ordinary contracts, the reason being that the party who adheres to the contract is free to reject it entirely. The only effect is that the terms of the contract are construed strictly against the party who drafted it. We have to distinguish the contractual relationship between the credit card issuer and card holder with the creditor-debtor relationship which only arises after the credit card issuer has approved the cardholders purchase request. The first relates merely to an agreement providing for credit facility to the cardholder. The latter involves the actual credit on loan agreement involving three contracts, namely: the sales contract between the credit card holder and the merchant or the business establishment which accepted the credit card; the loan agreement between the credit card issuer and the credit card holder; and the promise to pay between the credit card issuer and the merchant or business establishment. From the loan agreement perspective, the contractual relationship begins to exist only upon the meeting of the offer and acceptance of the parties involved. In more concrete terms, when cardholders use their credit cards to pay for their purchases, they merely offer to enter into loan agreements with the credit card company. Only after the latter approves the purchase requests that the parties enter into binding loan contracts. This view finds support in the reservation found in the card membership agreement itself which clearly states that AMEX reserve[s] the right to deny authorization for any requested Charge. By so providing, AMEX made its position clear that it has no obligation to approve any and all charge requests made by its card holders. Since AMEX has no obligation to approve the purchase requests of its credit cardholders, Pantaleon cannot claim that AMEX defaulted in its obligation. The 3 requisites for a finding of default are: (a) that the obligation is demandable and liquidated; (b) the debtor delays performance; and (c) the creditor judicially or extrajudicially requires the debtors performance.

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Clearly, the first requisite is no longer met because AMEX, by the express terms of the credit card agreement, is not obligated to approve Pantaleons purchase request. Without a demandable obligation, there can be no finding of default. Apart from the lack of any demandable obligation, we also find that Pantaleon failed to make the demand required by Article 1169. As previously established, the use of a credit card to pay for a purchase is only an offer to the credit card company to enter a loan agreement with the credit card holder. Before the credit card issuer accepts this offer, no obligation relating to the loan agreement exists between them. On the other hand, a demand is defined as the assertion of a legal right; xxx an asking with authority, claiming or challenging as due. A demand presupposes the existence of an obligation between the parties. Even assuming that AMEX had the right to review his credit card history before it approved his purchase requests, Pantaleon insists that AMEX had an obligation to act on his purchase requests, either to approve or deny, in a matter of seconds or in timely dispatch. Pantaleon impresses upon us the existence of this obligation by emphasizing two points: (a) his card has no pre-set spending limit; and (b) in his twelve years of using his AMEX card, AMEX had always approved his charges in a matter of seconds. However, this view is untenable. AMEXs credit authorizer, Edgardo Jaurigue, explained that having no pre-set spending limit in a credit card simply means that the charges made by the cardholder are approved based on his ability to pay, as demonstrated by his past spending, payment patterns, and personal resources. Nevertheless, every time Pantaleon charges a purchase on his credit card, the credit card company still has to determine whether it will allow this charge, based on his past credit history. This right to review a card holders credit history, although not specifically set out in the card membership agreement, is a necessary implication of AMEXs right to deny authorization for any requested charge. Moreover, based on the credit card membership agreement, there is no provision in this agreement that obligates AMEX to act on all cardholder purchase requests within a specifically defined period of time . Even the law makes no requirement that the bank must act on purchase requests at a defined period of time . As financial institutions engaged in the business of providing credit, credit card companies fall under the supervisory powers of the BSP. In light of the foregoing, AMEX is neither contractually bound nor legally obligated to act on its cardholders purchase requests within any specific period of time, much less a period of a matter of seconds that Pantaleon uses as his standard. The standard therefore is implicit and, as in all contracts, must be based on fairness and reasonableness, read in relation to the CC provisions on human relations, as will be discussed below. However, this does not give AMEX an unlimited right to put off action on cardholders purchase requests for indefinite periods of time. In acting on cardholders purchase requests, AMEX must take care n ot to abuse its rights and cause injury to its clients and/or third persons. It is an elementary rule in our jurisdiction that good faith is presumed and that the burden of proving bad faith rests upon the party alleging it. Although it took AMEX some time before it approved Pantaleons three charge requests, we find no evidence to suggest that it acted with deliberate intent to cause Pantaleon any loss or injury, or acted in a manner that was contrary to morals, good customs or public policy. We also cannot turn a blind eye to the circumstances surrounding the Coster transaction which, in our opinion, justified the wait. As Edgardo Jaurigue clarified, the reason why Pantaleon had to wait for AMEXs approval was because he had to go over Pantaleons credit card history for the past twelve months. ]It would certainly be unjust for us to penalize AMEX for merely exercising its right to review Pantaleons credit history meticulously. As borne by the records, Pantaleon knew even before entering Coster that the tour group would have to leave the store to have enough time to take the city tour of Amsterdam before they left the country. After 9:30 a.m., Pantaleons son, who had boarded the bus ahead of his family, returned to the store to inform his family that they were the only ones not on the bus and that the entire tour group was waiting for them. Significantly, Pantaleon tried to cancel the sale at 9:40 a.m. because he did not want to cause any inconvenience to the tour group. However, when Costers sale manager asked him to wait a few more minutes for the credit card approval, he agreed, despite the knowledge that he had already caused a 10-minute delay and that the city tour could not start without him. A person who knowingly and voluntarily exposes himself to danger cannot claim damages for the resulting injury. The doctrine of volenti non fit injuria (to which a person assents is not esteemed in law as injury) refers to self-inflicted injury or to the consent to injury which precludes the recovery of damages by one who has knowingly and voluntarily exposed himself to danger, even if he is not negligent in doing so. This doctrine is wholly applicable to this case. Pantaleon himself testified that the most basic rule when travelling in a tour group is that you must never be a cause of any delay because the schedule is very strict . When Pantaleon made up his mind to push through with his purchase, he must have known that the group would become annoyed and irritated with him. This was the natural, foreseeable consequence of his decision to make them all wait.

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AMEX did not violate any legal duty to Pantaleon under the circumstances under the principle of damnum absque injuria, or damages without legal wrong, loss without injury. As we held in BPI Express Card v. CA: We do not dispute the findings of the lower court that private respondent suffered damages as a result of the cancellation of his credit card. However, there is a material distinction between damages and injury. Injury is the illegal invasion of a legal right; damage is the loss, hurt, or harm which results from the injury; and damages are the recompense or compensation awarded for the damage suffered. Thus, there can be damage without injury in those instances in which the loss or harm was not the result of a violation of a legal duty. In such cases, the consequences must be borne by the injured person alone, the law affords no remedy for damages resulting from an act which does not amount to a legal injury or wrong. These situations are often called damnum absque injuria. In other words, in order that a plaintiff may maintain an action for the injuries of which he complains, he must establish that such injuries resulted from a breach of duty which the defendant owed to the plaintiff - a concurrence of injury to the plaintiff and legal responsibility by the person causing it. The underlying basis for the award of tort damages is the premise that an individual was injured in contemplation of law. Thus, there must first be a breach of some duty and the imposition of liability for that breach before damages may be awarded; and the breach of such duty should be the proximate cause of the injury. B. Contributory negligence Civil Code o Article 2179 (Memorize)

1. Rakes v. The Atlantic, Gulf and Pacific Company, 7 Phil. 359 (1907) Facts: Rakes was a negro working as a laborer for Atlantic Gulf in the early 1900s. One day, they were working in the companys yard and they were transporting heavy rails using two cars. Each car carrying 7 rails (560 lbs each). The cars were pulled by rope from the front and other workers are pushing the cars from behind. There were no side guards installed on the sides of the cars but the rails were secured by ropes. The track where the cars move were also weakened by a previous typhoon. It was alleged that Atlantics foreman was notified of said damage in the tracks but the same were left unrepaired. While the cars were being moved and when it reached the depressed portion of the track, and while Rakes was beside one of the cars, the ropes gave in and the rails slipped thereby crushing his leg and causing it to be amputated. Rakes sued Atlantic Gulf and he won; he was awarded 5,000 pesos for damages ($2,500). Atlantic assailed the decision of the lower court alleging that they specifically ordered their workers to be walking only before or after the cars and not on the side of the cars because the cars have no side guards to protect them in case the rails would slip. Atlantic also alleged that Rakes should be suing the foreman as it was him who neglected to have the tracks repaired; that Rakes himself was negligent for having known of the depression on the track yet he continued to work. Issue: Whether Atlantic is negligence for the injury of its nigga laborer. Held: YES but RAKES IS CONTRIBUTORILY LIABLE. The most controverted question in the case is that of the negligence of the Rakes, contributing to the accident, to what extent it existed in fact and what legal effect is to be given it. In 2 particulars is he charged with carelessness: First. That having noticed the depression in the track he continued his work; and Second, That he walked on the ends of the ties at the side of the car instead of along the boards , either before or behind it. The depression in the track might indicate either a serious or a trivial difficulty. FIRST POINT: nothing in the evidence to show that Rakes did or could see the displaced timber underneath the sleeper. The claim that he must have done so is a conclusion drawn from what is assumed to have been a probable condition of things not before us, rather than a fair inference from the testimony. While the method of construction may have been known to the men who had helped build the road, it could not have been known to Rakes who had worked at this job less than 2 days. A man may easily walk along a railway without perceiving a displacement of the underlying timbers. The foreman testified that he knew the state of the track on the day of the accident and that it was then in good condition. A witness for the Atlantic, swore that he never noticed the depression in the track. The sagging of the track Rakes did perceive, but that was reported in his hearing to the foreman who neither promised nor refused to repair it. His lack of caution in continuing at his work after noticing the slight depression of the rail was not of so gross a nature as to constitute negligence, barring his recovery. Rakes did not know the cause of the one rail being lower than the other" and "it does not appear in this case that heknew before the accident occurred that the stringers and rails joined in the same place." As regards the SECOND CHARGE of Negligence against the plaintiff: that there is no specific finding upon the instruction given by the defendant to its employees to walk only upon the planks, nor upon the necessity of Rakes putting himself upon the ties at the side in order to get hold upon the car. Rakes and his witnesses swear that not only were they not forbidden to proceed in this way, but were expressly directed by the foreman to do so. However, both the officers of the company and 3 of the workmen testify that there was a general prohibition frequently made known to all the 94 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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gang against walking by the side of the car, and the foreman swears that he repeated the prohibition before the starting of this particular load. The preponderance is in favor of the Atlantics contention to the extent of the general order being made known to the workmen. The disobedience of Rakes in placing himself in danger contributed in some degree to the injury as a proximate, although not as its primary cause. What effect is to be given such an act of contributory negligence? Does it defeat a recovery, according to the American rule, or is it to be taken only in reduction of damages? American States adhere to the doctrine of comparative negligence - allowing a recovery by a plaintiff whose own act contributed to his injury, provided his negligence was slight as compared with that of the defendant. The theory of proportional damages which reduces the award. However, the overwhelming weight of adjudication establishes the principle in American jurisprudence that any negligence, however slight, on the part of the person injured which is one of the causes proximately contributing to his injury, bars his recovery. In Grand Trunk Railway Company vs. Ives, which stated the present rule of law which is: Although the defendant's negligence may have been the primary cause of the injury complained of, yet an action for such injury can not be maintained if the proximate and immediate cause of the injury can be traced to the want of ordinary care and caution in the person injured. However, the contributory negligence of the party injured will not defeat the action if it be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the injured party's negligence. Difficulty seems to be apprehended in deciding which acts of the injured party shall be considered immediate causes of the accident. The test is simple. Distinction must be made between the accident and the injury , between the event itself, without which there could have been no accident, and those acts of the victim not entering into it, independent of it, but contributing to his own proper hurt. The cause of the accident under review was the displacement of the crosspiece or the failure to replace it . This produced the event giving occasion for damages that is, the sinking of the track and the sliding of the iron rails . Rakes act in walking by the side of the car did not contribute, although it was an element of the damage. Had the crosspiece been out of place wholly or partly through his act or omission of duty, that would have been one of the determining causes of the event or accident, for which he would have been responsible. Where he contributes to the principal occurrence, as one of its determining factors, he can not recover. Where, in conjunction with the occurrence, he contributes only to his own injury, he may recover the amount that the defendant responsible for the event should pay for such injury, less a sum deemed a suitable equivalent for his own imprudence. The judgment of the trial court, fixing the damage incurred by the plaintiff at 5,000 pesos is modified; we deduct therefrom 2,500 pesos, the amount fairly attributable to his negligence. 2. Taylor v. Manila Electric Railroad and Light Co. , 16 Phil. 8 (1910) See previous Doctrine: When the immediate cause of an accident resulting in an injury is the plaintiff's own act, which contributed to the principal occurrence as one of its determining factors, he can not recover damages for the injury. 3. National Power Corporation v. Casionan, G.R. No. 165969, November 27, 2008 Facts: Sometime in 1970, NPC installed high-tension electrical transmission lines (69 KV) traversing a trail leading to Sangilo, Itogon, in Dalicno. Some of the lines sagged and dangled at a height of only 8 to 10 feet. As early as 1991, the leaders of Ampucao, Itogon made verbal and written requests to NPC for the institution of safety measures. They wrote the Area Manager to make immediate repairs, reiterating the dangers posed to small-scale miners during the wet season; they related an incident where a boy was nearly electrocuted. In March 1995, the Area Manager wrote the Itogon Mayor that NPC installed 9 additional poles , and identified a possible rerouting scheme. 3 months later, Noble and his co-pocket miner, Jimenez, were at Dalcino. They cut 2 bamboo poles; Noble carried the shorter pole and walked through the abovementioned trail towards their workplace. The tip of the pole he was carrying touched one of the wires, and Jimenez saw Noble fall to the ground, dead. The Municipal Health Officer determined the Cause of Death to be cardiac arrest caused by electrocution. Police found wires hanging 8 to 10 feet from the ground. The trail was the only viable way; the other side was a precipice. No warning signs were present. After the incident, NPC repaired the lines and put up warning signs. The heirs filed a claim for damages before the RTC. NPC denies negligence, averring that danger signs previously installed were stolen by kids, and that some poles sank due to pocket mining. It averred that it could not have been electrocution, there being a lack of extensive burns. The RTC and CA ruled in favor of the Heirs. 95 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013 Issue: Whether damages should be deleted in lieu of Nobles contributory negligence.

Atty. Jess Lopez

Held: NO. NPC makes an absurd contention that the mere presence of the high tension wires above the trail did not cause the victims death. Instead, it was Nobles negligent carrying of the bamboo pole that caused his death. It insists that Noble was negligent when he allowed the bamboo pole he was carrying to touch the high tension wires. This is especially true because other people traversing the trail have not been similarly electrocuted. The sagging high tension wires were an accident waiting to happen. As established during trial, the lines were sagging around 8 to 10 feet in violation of the required distance of 18 to 20 feet. If the transmission lines were properly maintained by NPC, the bamboo pole carried by Noble would not have touched the wires . He would not have been electrocuted. Moreover, there is no contributory negligence on Nobles part. Negligence is the failure to observe, for the protection of the interest of another person, that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury. On the other hand, contributory negligence is conduct on the part of the injured party, contributing as a legal cause to the harm he has suffered, which falls below the standard which he is required to conform for his own protection. There is contributory negligence when the partys act showed lack of ordinary care and foresight that such act could cause him harm or put his life in danger. It is an act or omission amounting to want of ordinary care on the part of the person injured which, concurring with the defendants negligence, is the proximate cause of the injury. The underlying precept on contributory negligence is that a plaintiff who is partly responsible for his own injury should not be entitled to recover damages in full but must bear the consequences of his own negligence. If indeed there was contributory negligence on the part of the victim, then it is proper to reduce the award for damages . This is in consonance with Art. 2179 CC provision that liability will be mitigated in consideration of the contributory negligence of the injured party. In this case, the trail where Noble was electrocuted was regularly used by members of the community . There were no warning signs to inform passersby of the impending danger to their lives should they accidentally touch the high tension wires. Also, the trail was the only viable way from Dalicon to Itogon. Hence, Noble should not be faulted for simply doing what was ordinary routine to other workers in the area. NPC further faults the victim in engaging in pocket mining, which is prohibited by the DENR in the area. In Aonuevo v. CA, this it was ruled that the violation of a statute is NOT SUFFICIENT to hold that the violation was the proximate cause of the injury, unless the very injury that happened was precisely what was intended to be prevented by the statute. In said case, the allegation of contributory negligence on the part of the injured party who violated traffic regulations when he failed to register his bicycle or install safety gadgets thereon was struck down. In sum, the victim was not guilty of contributory negligence. Hence, NPC is not entitled to a mitigation of its liability. 4. Lambert v. Heirs of Rey Castillon, 452 SCRA 285 (2005) See previous Doctrine: The underlying precept on contributory negligence is that a plaintiff who is partly responsible for his own injury should not be entitled to recover damages in full but must bear the consequences of his own negligence. The defendant must thus be held liable only for the damages actually caused by his negligence. The determination of the mitigation of the defendants liability varies depending on the circumstances of each case. In the case at bar, it was established that Ray, at the time of the mishap: (1) was driving the motorcycle at a high speed; (2) was tailgating the Tamaraw jeepney; (3) has imbibed one or two bottles of beer; and (4) was not wearing a protective helmet. These circumstances, although not constituting the proximate cause of his demise and injury to Sergio, contributed to the same result. The contribution of these circumstances are all considered and determined in terms of percentages of the total cause. Hence, pursuant to Rakes v. AG & P, the heirs of Ray Castillon shall recover damages only up to 50% of the award. In other words, 50% of the damage shall be borne by the private respondents; the remaining 50% shall be paid by the petitioner. 5. Estacion v. Bernardo, G.R. No. 144723, February 27, 2006 Facts: Noe Bernardo boarded a Ford Fiera passenger jeep driven by respondent Geminiano Quinquillera, owned by Cecilia Bandoquillo and was seated on the extension seat placed at the center of the Fiera. An old woman wanted to ride, so Noe offered his seat. Since the Fiera was already full, Noe hung or stood on the left rear carrier of the vehicle. The Fiera began to slow down and then stopped by the right shoulder of the road to pick up passengers. An Isuzu cargo truck, owned by Estacion and driven by Gerosano, which was traveling in the same direction, hit the rear end portion of the Fiera where respondent Noe was standing. The cargo truck smashed Noe against the Fiera 96 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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crushing his legs and feet, which made him fall to the ground. A passing vehicle brought him to the Silliman University Medical Center where his lower left leg was amputated. Police investigation reports showed that Noe was one of the 11 passengers of the Fiera who suffered injuries; that only 1 tire mark from the front right wheel of the cargo truck was seen on the road. The sketch of the accident showed the relative positions of the two vehicles, their distances from the shoulder of the road and the skid marks of the right front wheel of the truck measuring about 48 feet. Noe filed a complaint for damages arising from quasi delict against Estacion as the registered owner of the cargo truck and his driver Gerosano. It was alleged that the proximate cause of his injuries and suffering was the reckless imprudence of Gerosano and Estacions negligence in the selection of a reckless driver and for operating a vehicle that was not road-worthy. Estacion and his driver Gerosano denied the allegations. They filed a third party complaint against the owner and driver of the Fiera. It was alleged that it was the reckless imprudence of Fiera driver and his clear violation of the traffic rules and regulations which was the proximate cause of the accident and asked for indemnification. Driver of the cargo truck, Gerosano, was charged criminally for reckless imprudence resulting to multiple physical injuries with damage to property. MCTC found him guilty of the crime charged. Trial court (in this case) ruled that Gerosanos gross negligence and reckless imprudence had been confirmed by the Judgment in Criminal Case No. 463 and such negligence of Gerosano is the direct and proximate cause of the incident and of the injuries suffered by respondent Noe. It was also found that faulty breaks (only 1 tiremark) caused the truck to hit the Fiera. Also, tiremarks showed that the truck had been driving fast. CA affirmed. Issue: Who should be liable. Held: ALL ARE GUILTY OF NEGLIGENCE. The truck was running at a fast speed because if Gerosano was really driving at a speed of 40 KPH and considering that the distance between the truck and the Fiera in front was about 10 meters, he had more than enough time to slacken his speed and apply his break to avoid hitting the Fiera. From the way the truck reacted to the application of the brakes, it showed that Gerosano was driving at a fast speed because the brakes skidded a lengthy 48 feet as shown in the sketch of police investigator of the tire marks visibly printed on the road. Photographs taken after the incident and the testimony of Gerosano as to the extent of damage to the truck, i.e. the trucks windshield was broken and its hood was damaged after the impact, further suppor t the finding of both courts that Gerosano was driving at a fast pace. Based on the sketch report, there was only one tire mark of the right tire of the cargo truck during the incident which, as testified to by police investigator, meant that the brakes of the truck were not aligned otherwise there would be two tire marks impressions on the road. Indeed, it is the negligent act of petitioners driver of driving the cargo truck at a fast speed coupled with faulty brakes which was the proximate cause of respondent Noes injury. Gerosano admitted that his truck was at a distance of 10 meters prior to the impact. The distance between the two vehicles was such that it would be impossible for Gerosano not to have seen that the Fiera had pulled over to pick up passengers. Also, Noes act of standing on the rear carrier of the Fiera exposing himself to bodily injury is in itself negligence on his part. Contributory negligence is conduct on the part of the injured party, contributing as a legal cause to the harm he has suffered, which falls below the standard to which he is required to conform for his own protection. It has been established by the testimony of Noe that he was with 4 or 5 other persons standing on the rear carrier of the Fiera since it was already full. Noes act of standing on the left rear carrier portion of the Fiera showed his lack of ordinary care and foresight that such act could cause him harm or put his life in danger . It has been held that to hold a person as having contributed to his injuries, it must be shown that he performed an act that brought about his injuries in disregard of warning or signs of an impending danger to health and body . Noes act of hanging on the Fiera is definitely dangerous to his life and limb. Also, there was overloading which is in violation of traffic rules and regulations. Quinquillera should not have taken more passengers than what the Fiera can accommodate. If the Fiera was not overloaded, Noe would not have been standing on the rear carrier and sustained such extent of injury. Quinquillera was negligent in allowing Noe to stand on the Fieras rear portion. Under the law, no driver shall allow any person to ride on running board, step board, or mudguard. Quinquilleras act of permitting Noe to hang on the rear portion of the Fiera in such a dangerous position creates undue risk of harm to Noe. Quinquillera failed to observe that degree of care, precaution and vigilance that the circumstances justly demand. Since respondent Quinquillera is negligent, there arises a presumption of negligence on the part of his employer, respondent Bandoquillo, in supervising her employees properly. Such presumption was not rebutted at all by Bandoquillo. 97 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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For the employer to avoid the solidary liability for a tort committed by his employee, an employer must rebut the presumption by presenting adequate and convincing proof that in the selection and supervision of his employee, he or she exercises the care and diligence of a good father of a family. Case law teaches that for an employer to have exercised the diligence of a good father of a family in the selection of employees, he should not be satisfied with the applicants mere possession of a professional drivers license; he must also carefully examine the applicant for employment as to his qualifications, his experience and record of service. Petitioner failed to show that he examined driver Gerosano as to his qualifications, experience and service records. The testimony of driver Gerosano in his cross-examination showed the non-observance of these requirements. Gerosano testified that petitioner was his first employer in Dumaguete and that he was accepted by petitioner on the very day he applied for the job; that his drivers license was issued in Mindanao where he came from and that while petitioner asked him about his driving record in Mindanao, he did not present any document of his driving record. These clearly established that petitioner did not exercise due diligence in the selection. The fact that petitioners driver Gerosano was driving in an efficient manner when petitioner was with him in his first two trips would not conclusively establish that Gerosano was not at all reckless. It could not be considered as due diligence in the supervision of his driver to exempt petitioner from liability. In the supervision of his driver, petitioner must show that he had formulated training programs and guidelines on road safety for his driver which the records failed to show. Estacion failed to rebut the presumption of negligence in the selection and supervision of his employees. Furthermore, there was no proof that he exercised diligence in maintaining his cargo truck roadworthy and in good operating condition. While Estacions mechanic driver testified that he made a routine chec k up one day before the mishap happened, and found the truck operational, there was no record of such inspection. Since there was contributory negligence on the part of Noe, Estacions liability should be mitigated in accordance to Art. 2179. The underlying precept of this article on contributory negligence is that a plaintiff who is partly responsible for his own injury should not be entitled to recover damages in full but must bear the consequences of his own negligence. The defendant must thus be held liable only for the damages actually caused by his negligence. The demands of substantial justice are satisfied by distributing the damages on a 20-80 ratio excluding attorneys fees and litigation expenses. (based on the Phoenix Construction v. IAC case) Petitioner and respondents Bandoquillo and Quinquillera are jointly and severally liable for the 80% of the damages as well as attorneys fees and litigation expenses. 6. Philippine National Railways v. Brunty, G.R. No. 169891, November 2, 2006 Facts: Rhonda Brunty, Garcia, and Mercelita (the driver) were riding in a Mercedes Benz sedan en route to Baguio. A PNR Train driven by Alfonso Reyes was also departing from La Union station. At 2PM, Mercelita et al. were already approaching the railroad crossing at Barangay Rizal, Moncada, Tarlac. Mercelita was driving at approximately 70 KPH and drove past a vehicle, unaware of the railroad track up ahead. Eventually the sedan collided with the train, instantly killing Mercelita and gravely injuring Rhonda and Garcia. Rhonda Brunty died thereafter. Ethel Brunty (herein respondent) demanded for damages against PNR but the same remained unheeded. Hence she filed a complaint, alleging that the death of Rhonda, Mercelita and Garica were the direct and proximate result of the gross and reckless negligence of PNR in not providing the necessary equipment at the railroad in Tarlac. They pointed out that there was no flagbar or red light signal to warn motorists who were about to cross the railroad track, and that the flagman or switchman was only equipped with a hand flashlight. They also aver the negligence of PNR in supervising its employees, particularly the driver and operator of the train. PNR meanwhile claims that it had the right of way on the railroad crossing in question, and that it has no legal duty to put up a bar or red light signal in any such crossing. It insisted that there were adequate, visible, and clear warning signs strategically posted on the sides of the road before the railroad crossing. It countered that the immediate and proximate cause of the accident was Mercelitas negligence, and that he had the last clear chance to avoid the accident. The driver disregarded the warning signs, the whistle blasts of the oncoming train and the flashlight signals to stop given by the guard. Issues: (1) Whether or not the accident was due to Mercelitas negligence. (2) Whether Mercelita was guilty of contributory negligence. (3) Whether last clear chance is applicable Held: PNR IS NEGLIGENT. MERCELITA GUILTY OF CONTRIBUTORY NEGLIGENCE.

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It was clearly established that respondents sustained damage or injury as a result of the collision. PNRs negligence is likewise beyond cavil. Considering the circumstances prevailing at the time of the fatal accident, the alleged safety measures installed by the PNR at the railroad crossing is not only inadequate but does not satisfy well-settled safety standards in transportation. An examination of the photographs of the railroad crossing at Moncada, Tarlac presented as evidence by PNR itself would yield the following: (1) absence of flagbars or safety railroad bars; (2) inadequacy of the installed warning signals; and (3) lack of proper lighting within the area. Thus, even if there was a flagman stationed at the site as claimed by PNR, it would still be impossible to know or see that there is a railroad crossing/tracks ahead, or that there is an approaching train from the Moncada side of the road since ones view would be blocked by a cockpit arena. A vehicle coming from the Moncada side would have difficulty in knowing that there is an approaching train because of the slight curve , more so, at an unholy hour as 2AM. Thus, it is imperative on the part of the PNR to provide adequate safety equipment in the area. It may broadly be stated that railroad companies owe to the public a duty of exercising a reasonable degree of care to avoid injury to persons and property at railroad crossings , which duties pertain both in the operation of trains and in the maintenance of the crossings. The Court has previously determined the liability of the PNR for damages for its failure to put a cross bar, or signal light, flagman or switchman, or semaphores. Such failure is evidence of negligence and disregard of the safety of the public, even if there is no law or ordinance requiring it because public safety demands that said device or equipment be installed. Contributory negligence is conduct on the part of the injured party, contributing as a legal cause to the harm he has suffered, which falls below the standard to which he is required to conform for his own protection. To hold a person as having contributed to his injuries, it must be shown that he performed an act that brought about his injuries in disregard of warning or signs of an impending danger to health and body.To prove contributory negligence, it is still necessary to establish a causal link, although not proximate, between the negligence of the party and the succeeding injury . In a legal sense, negligence is contributory only when it contributes proximately to the injury, and not simply a condition for its occurrence. It is established that there was a slight curve before approaching the tracks, the place was not properly illuminated, ones view was blocked by a cockpit arena, and Mercelita was not familiar with the road. Despite all that, it was found that Mercelita was then driving the Benz at a speed of 70 KPH and, in fact, had overtaken a vehicle a few yards before reaching the railroad track. Mercelita should not have driven the car the way he did. However, while his acts contributed to the collision, they nevertheless do not negate PNR liability (which according to the court, it was bereft of any allegation and proof as to the relationship between Mercelita and Rhonda Brunty. Hence, the finding of contributory negligence on the part of Mercelita, which generally has the effect of mitigation of liability, does not apply). The doctrine of last clear chance does not apply. The doctrine of last clear chance states that where both parties are negligent but the negligent act of one is appreciably later than that of the other, or where it is impossible to determine whose fault or negligence caused the loss, the one who had the last clear opportunity to avoid the loss but failed to do so, is chargeable with the loss. Stated differently, the antecedent negligence of plaintiff does not preclude him from recovering damages caused by the supervening negligence of defendant, who had the last fair chance to prevent the impending harm by the exercise of due diligence. The proximate cause of the injury having been established to be the negligence of PNR, the above doctrine finds no application in the instant case. 7. Del Rosario v. Manila Electric Co., 57 Phil. 478 (1932) Facts: Around 2PM on Aug 4, 1930, in Dimasalang St, a 6 triple braid weather proof wire commonly used by MECo to conduct electricity for lighting was noticed to be burning. After a while, the wire parted and one of its ends fell to the ground. Thus, he phoned MECo and apprised the latter of the incident. The latter promised to send an inspector. Meanwhile, at 4PM, a school had just been dismissed and children, including Alberto del Rosario (9 years old) and 2 others, were on their way home. Upon seeing the wire, they were all curious as to what it was. One of Albertos companions was with his electrician father. As such, said father told them not to touch it. But since Alberto was still curious and challenged and was walking ahead of his group, put his index finger on the wire. Immediately, he fell to the ground. Upon being taken to the hospital, he was pronounced dead. The MECo inspector came only after Alberto fell victim to the wire. His parents now seek to hold MECo for negligence. Issue: Whether Alberto del Rosario was negligence such that MECo can be exonerated. Held: NO. CORP IS LIABLE. The presumption of negligence on the part of MECo from the breakage of this wire has not been overcome, and MECo is responsible for the accident.Moreover, despite being informed about the wire, it took MECo more than an hour an a half before it could send its inspector.

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Moreover, it is doubtful whether contributory negligence can properly be imputed to the deceased , owing to his immature years and the natural curiosity which a child would feel to do something out of the ordinary, and the mere fact that the deceased ignored the caution of a companion of the age of 8 years does not alter the case. But even supposing that contributory negligence could in some measure be properly imputed to the de ceased, yet such negligence would not be wholly fatal to the right of action in this case, not having been the determining cause of the accident. C. Assumption of Risk

1. Afialda v. Hisole, 85 Phil. 67 (1949) Facts: This is an action for damages arising from injury caused by an animal. The complaint alleges that the now deceased, Loreto Afialda, was employed by the Spouses Hisole as caretaker of their carabaos at a fixed compensation; that while tending the animals, he was gored by one of them and later died as a consequence of his injuries; that the mishap was due neither to his own fault nor to force majeure; and that Afialda is his elder sister and heir depending upon him for support. Plaintiff seeks to hold Spouses liable under article 1905 of the Civil Code, which reads: The possessor of an animal, or the one who uses the same, is liable for any damages it may cause, even if such animal should escape from him or stray away. This liability shall cease only in case, the damage should arise from force majeure or from the fault of the person who may have suffered it. Spouses were absolved by the lower court because above provision was interpreted to mean that the owner of the animal is answerable only for damages caused to a stranger and that for damage to the caretaker, the owner would be liable only if he had been negligent or at fault. Issue: Whether the owner of the animal is liable when the damage is caused to its caretaker. Held: NOT LIABLE. Claiming that the lower court was in error, Afialdas counsel contends that the article 1905 does not distinguish between damage caused to the caretaker and makes the owner liable whether or not he has been negligent or at fault. This opinion, however, appears to have been rendered in a case where an animal caused injury to a stranger or third person. It is therefore no authority for a case like the present where the person injured was the caretaker of the animal. The distinction is important. For the statute names the possessor or user of the animal as the person liable for any damages it may cause, and this for the obvious reason that the possessor or user has the custody and control of the animal and is therefore the one in a position to prevent it from causing damage. Here, the animal was in custody and under the control of the caretaker, who was paid for his work as such. Obviously, it was the caretaker's business to try to prevent the animal from causing injury or damage to anyone , including himself. And being injured by the animal under those circumstances was one of the RISKS OF THE OCCUPATION which he had voluntarily assumed and for which he must take the consequences . In a decision of the Spanish SC, the death of an employee who was bitten by a feline which his master had asked him to take to his establishment was by said tribunal declared to be a veritable accident of labor (Manresa) which should come under the labor laws rather than under article 1905 CC. The present action, however, is not brought under the Workmen's Compensation Act, there being no allegation that, among other things, Spouses business, whatever that might be, had a gross income of P20,000. As already stated, Spouses liability is made to rest on article 1905 CC. But action under that article is not tenable for the reasons already stated. On the other hand, if action is to be based on article 1902 of the Civil Code, it is essential that there be fault or negligence on the part of the Spouses as owners of the animal that caused the damage. But, the complaint contains no allegation on those points. 2. Ilocos Norte Electric Company v. Court of Appeals, 179 SCRA 5, (1989) Facts: In the evening of June 28 until the early morning of June 29, 1967 a strong typhoon by the code name Gening buffeted the province of Ilocos Norte. After the typhoon had abated and when the floodwaters were beginning to recede, the deceased Isabel Lao Juan, ventured out of the house of her son in-law, Antonio Yabes and proceeded towards the direction of the Five Sisters Emporium, of which she was the owner and proprietress, to look after the merchandise therein that might have been damaged. Wading in waist-deep flood, the deceased was followed by Aida Bulong and by Linda. Aida and Linda walked side by side at a distance of between 5 and 6 meters behind the deceased. Suddenly, the deceased screamed Ay and quickly sank into the water. The 2 girls attempted to help, but fear dissuaded them from 100 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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doing so because on the spot where the deceased sank they saw an electric wire dangling from a post and moving in snake-like fashion in the water. Upon their shouts for help, Ernesto dela Cruz came out of the house of Antonio Yabes. Ernesto tried to go to the deceased, but at 4 meters away from her he turned back shouting that the water was grounded. When Antonio Yabes was informed by Ernesto that his mother- in-law had been electrocuted, he acted immediately. He passed by the City Hall of Laoag to request the police to ask the people of Ilocos Norte Electric Company (INELCO) to cut off the electric current. The floodwater was receding and the lights inside the house were out indicating that the electric current had been cut off. Yabes instructed his boys to fish for the body of the deceased. The body was recovered about 2 meters from an electric post. About 4A.M. on that fateful date, Power Plant Engineer of the NPC at the Laoag Diesel-Electric Plant, noticed certain fluctuations in their electric meter which indicated such abnormalities as grounded or short-circuited lines. He decided to make an inspection. On the way, he saw grounded and disconnected lines. Electric lines were hanging from the posts to the ground. Since he could not see any INELCO lineman, he decided to go to the INELCO Office which was still closed. As he turned right at the intersection of Guerrero and Rizal, he saw an electric wire about 30 meters long strung across the street and the other end seemed to play with the current of the water. Having learned of the death of Isabel Lao Juan, he passed by the house of the deceased to which the body had been taken. Using the resuscitator, he tried to revive the deceased. His efforts proved futile. Rigor mortis was setting in. On the left palm of the deceased, Engr. Juan noticed a hollow wound. Proceeding to the INELCO office, he met 2 linemen. He told them about the grounded lines of the INELCO. He went on a 3rd inspection trip preparatory to the restoration of power. The dangling wire he saw was no longer there. Upon the request of the relatives of the deceased, Dr. Castro examined the body. He found that the skin was grayish or, in medical parlance, cyanotic, which indicated death by electrocution. On the left palm, the doctor found an electrically charged wound or a first degree burn. The certificate of death prepared by Dr. Castro stated the cause of death as circulatory shock electrocution Defendant presented the testimonies of its officers and employees and sought to prove that on and even before June 29, 1967 the electric service system of the INELCO did not suffer from any defect that might constitute a hazard to life and property. The service lines, devices and other INELCO equipment in Area No. 9 had been newly-installed prior to the date in question. Defendant had installed safety devices; had 12 lines-men charged with the duty of making a round-theclock check-up. It claimed that although a strong typhoon struck the province of Ilocos Norte putting to streets of Laoag City under water, only a few known places in Laoag were reported to have suffered damaged electric lines. Fabico Abijero testified that in the early morning before 6 am on June 29, 1967, he did not see any cut or broken wires in or near the vicinity. What he saw were many people fishing out the body of Isabel Lao Juan. A witness in the person of Dr. Antonio Briones was presented by the defense to show that the deceased could not have died of electrocution. Without an autopsy on the cadaver of the victim, no doctor, not even a medicolegal expert, can speculate as to the real cause of death. Cyanosis could not have been found in the body of the deceased 3 hours after her death, because cyanosis, which means lack of oxygen circulating in the blood and rendering the color of the skin purplish, appears only in a live person. The presence of the elongated burn in the left palm of the deceased is not sufficient to establish her death by electrocution; since burns caused by electricity are more or less round in shape and with points of entry and exit . Had the deceased held the lethal wire for a long time, the laceration in her palm would have been bigger and the injury more massive. An action for damages was instituted by the heirs of the deceased. In INELCOs Answer, they raised as a special defense that the deceased could have died simply either by drowning or by electrocution due to negligence attributable only to herself and not to INELCO. The deceased, without INELCOs knowledge, caused the installation of a burglar deterrent by connecting a wire from the main house to the iron gate and fence of steel matting, thus, charging the latter with electric current whenever the switch is on. INELCO then conjectures that the switch to said burglar deterrent must have been left on, hence, causing the deceaseds electrocution when she tried to open her gate CFI found the facts in favor of INELCO and dismissed the complaint but awarded moral damages and attorneys fees Issue: (1) Whether deceased died of electrocution. (2) Whether INELCO may be held liable for the death. Held: (1) YES. It was shown that the deceased died of electrocution, derived from the photographed burnt wounds on the left palm. Such wounds undoubtedly point to the fact that the deceased had clutched a live wire of the INELCO. This was corroborated by the testimony of Dr. Jovencio Castro who actually examined the body of the deceased a few hours after the death and described the said burnt wounds as a first degree burn and electrically charged.

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Witnesses Linda Alonzo Estavillo and Aida Bulong added that after the deceased screamed Ay and sank into the water, they tried to render some help but were overcome with fear by the sight of an electric wire dangling moving in the water in a snake-like fashion. The nature of the wounds as described by the witnesses who saw them can lead to no other conclusion than that they were burns, and there was nothing else in the street where the victim was wading thru which could cause a burn To escape liability, INELCO ventures into the theory that the deceased was electrocuted, if such was really the case, when she tried to open her steel gate, which was electrically charged by an electric wire she herself caused to install to serve as a burglar deterrent. Such is mere speculation, not backed up with evidence. each party must prove his own affirmative allegations. In fact, during the trial, this theory was abandoned by the INELCO. (2) While it is true that typhoons and floods are considered Acts of God for which no person may be held responsible, it was not the said eventuality which directly caused the victims death. It was through the intervention of INELCOs negligence that death took place. Defendant called to the witness-stand its electrical engineer, chief lineman, and lineman to show exercise of extraordinary diligence and to negate the charge of negligence. The witnesses testified in a general way about their duties and the measures which defendant usually adopts to prevent hazards to life and limb. Lower court found that the electric lines and other equipment of INELCO were properly maintained. The finding of the lower court, however, was ba sed on what the INELCOs employees were supposed to do, not on what they actually did or failed to do on the date in question, and not on the occasion of the emergency situation brought about by the typhoon. The lower court made a mistake in assuming that INELCOs employees worked around the clock during the occurrence of the typhoon. Engr. Antonio Juan of the NPC affirmed that when he first set out on an inspection trip, he saw grounded and disconnected electric lines of the defendant but he saw no INELCO lineman. The INELCO Office at the Life theatre on Rizal Street was still closed. Conrado Asis, electrical engineer, testified that he conducted a general inspection of the franchise area of the INELCO only on June 30, 1967 , the day following the typhoon. The reason he gave for the delay was that all their vehicles were submerged. In times of calamities, extraordinary diligence requires a supplier of electricity to be in constant vigil to prevent or avoid any probable incident that might imperil life or limb. The evidence does not show that INELCO did that. On the contrary, evidence discloses that there were no men policing the area, nor even manning its office. Under the circumstances of the case, INELCO was negligent in seeing to it that no harm is done to the general public considering that the measure of care required of electric companies must be commensurate with or proportionate to the danger. The duty of exercising this high degree of diligence and care extends to every place where persons have a right to be. The negligence of INELCO having been shown, it may not now absolve itself from liability by arguing that the victims death was solely due to a fortuitous event. When an act of God combines or concurs with the negligence of the defendant to produce an injury, the defendant is liable if the injury would not have resulted but for his own negligent conduct or omission. INELCO claims that the CA gravely abused its discretion and erred in not applying the legal principle of assumption of risk in the present case to bar private respondents from collecting damages from INELCO. The maxim volenti non fit injuria (to a willing person, injury is not done) relied upon by INELCO finds no application. It is imperative to note the surrounding circumstances which impelled the deceased to leave the comforts of a roof and brave the subsiding typhoon. As testified, the deceased, accompanied by Aida and Linda, were on their way to the latters grocery store to see to it that the goods were not flooded. As such, shall We punish her for exercising her right to protect her property from the floods by imputing upon her the unfavorable presumption that she assumed the risk of personal injury? Definitely not. For it has been held that a person is EXCUSED from the force of the rule that when he voluntarily assents to a known danger he must abide by the consequences , if an emergency is found to exist or if the life or property of another is in peril or when he seeks to rescue his endangered property. Clearly, an emergency was at hand as the deceaseds property, a source of her livelihood, was faced with an impending loss. Furthermore, the deceased, at the time the fatal incident occurred, was at a place where she had a right to be without regard to INELCOs consent as she was on her way to protect her merchandise. Hence, private respondents, as heirs, may not be barred from recovering damages as a result of the death caused by INELCOs negligence. 3. Calalas v. Court of Appeals, G.R. No. 122039, May 31, 2000 See previous Doctrine: The fact that Sunga was seated in an extension seat placed her in a peril greater than that to which the other passengers were exposed. Therefore, not only was petitioner unable to overcome the presumption of negligence imposed on him for the injury sustained by Sunga, but also, the evidence shows he was actually negligent in transporting passengers. We find it hard to give serious thought to petitioners contention that Sungas taking an extension seat amounted to an implied assumption of risk. It is akin to arguing that the injuries to the many victims of the tragedies in our seas 102 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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should not be compensated merely because those passengers assumed a greater risk of drowning by boarding an overloaded ferry. This is also true of petitioners contention that the jeepney being bumped while it was improperly parked constitutes caso fortuito. A caso fortuito is an event which could not be foreseen, or which, though foreseen, was inevitable. This requires that the following requirements be present: (a) the cause of the breach is independent of the debtors will; (b) the event is unforeseeable or unavoidable; (c) the event is such as to render it impossible for the debtor to fulfill his obligation in a normal manner; and (d) the debtor did not take part in causing the injury to the creditor. Petitioner should have foreseen the danger of parking his jeepney with its body protruding two meters into the highway. D. Last Clear Chance

1. Picart v. Smith, 37 Phil. 809 (1918) See previous Doctrine: It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent negligence in planting himself on the wrong side of the road. But as we have already stated, the defendant was also negligent; and in such case the problem always is to discover which agent is immediately and directly responsible. It will be noted that the negligent acts of the 2 parties were NOT CONTEMPORANEUS , since the negligence of the defendant succeeded the negligence of the plaintiff by an APPRECIABLE INTERVAL. Under these circumstances the law is that the person who has the last fair chance to avoid the impending harm and fails to do so is chargeable with the consequences, without reference to the prior negligence of the other party. The decision in the case of Rakes vs. Atlantic, Gulf and Pacific Co. should perhaps be mentioned in this connection. This Court there held that while contributory negligence on the part of the person injured did not constitute a bar to recovery, it could be received in evidence to reduce the damages which would otherwise have been assessed wholly against the other party. The defendant company had there employed the plaintiff, as a laborer, to assist in transporting iron rails from a barge in Manila harbor to the company's yards located not far away. The rails were conveyed upon cars which were hauled along a narrow track. At certain spot near the water's edge the track gave way by reason of the combined effect of the weight of the car and the insecurity of the road bed. The car was in consequence upset; the rails slid off; and the plaintiff's leg was caught and broken. It appeared in evidence that the accident was due to the effects of the typhoon which had dislodged one of the supports of the track. The court found that the defendant company was negligent in having failed to repair the bed of the track and also that the plaintiff was, at the moment of the accident, guilty of contributory negligence in walking at the side of the car instead of being in front or behind. It was held that while the defendant was liable to the plaintiff by reason of its negligence in having failed to keep the track in proper repair nevertheless the amount of the damages should be reduced on account of the contributory negligence in the plaintiff. As will be seen the defendant's negligence in that case consisted in an omission only. The liability of the company arose from its responsibility for the dangerous condition of its track. In this case, where the defendant was actually present and operating the automobile which caused the damage, we do not feel constrained to attempt to weigh the negligence of the respective parties in order to apportion the damage according to the degree of their relative fault. It is enough to say that the negligence of the defendant was in this case the immediate and determining cause of the accident and that the antecedent negligence of the plaintiff was a more remote factor in the case. 2. Philippine National Railways Corporation v. Vizcara, G.R. No. 190022, February 15, 2012 Facts: On May 14, 2004, at about 3AM, Reynaldo Vizcara (Reynaldo) was driving a passenger jeepney headed towards Bicol to deliver onion crops, with his companions, Cresencio Vizcara, Crispin Natividad, Samuel Natividad, Dominador Antonio, and Joel Vizcara. While crossing the railroad track in Tiaong, Quezon, a PNR train, then being operated by respondent Japhet Estranas, suddenly turned up and rammed the passenger jeepney. The collision resulted to the instantaneous death of Reynaldo, Cresencio, Crispin, and Samuel. On the other hand, Dominador and Joel, sustained serious physical injuries. At the time of the accident, there was no level crossing installed at the railroad crossing. Additionally, the Stop, Look and Listen signage was poorly maintained. The Stop signage was already faded while the Listen signage was partly blocked by another signboard. The survivors of the mishap, Joel and Dominador, together with the heirs of the deceased filed an action for damages against PNR, Estranas and Ben Saga, the alternate driver of the train. The respondents alleged that the proximate cause of the fatalities and serious physical injuries sustained by the victims of the accident was the PNRs gross negligence in not providing adequate safety measures to prevent injury to persons and properties. They pointed out that in the railroad track of Tiaong, Quezon where the accident happened, there was no level crossing bar, lighting equipment or bell installed to warn motorists of the existence of the track and of the approaching train. PNR claimed that they exercised due diligence in operating the train and monitoring its roadworthiness. They asseverate that right before the collision, Estranas was driving the train at a moderate speed. 400 meters away from the railroad 103 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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crossing, he started blowing his horn to warn motorists of the approaching train. When the train was only 50 meters away from the intersection, Estranas noticed that all vehicles on both sides of the track were already at a full stop. Thus, he carefully proceeded at a speed or 25 KPH, still blowing the trains horn. However, when the train was already 10 meters away from the intersection, the passenger jeepney being driven by Reynaldo suddenly crossed the tracks. Estranas immediately stepped on the brakes to avoid hitting the jeepney but due to the sheer weight of the train, it did not instantly come to a complete stop until the jeepney was dragged 20 to 30 meters away from the point of collision. RTC ruled in favor of the respondents. CA affirmed. MR was denied by the CA hence the present petition. Issue: Whether or not the doctrine of last clear chance applies. Held: NO. PNR maintain that the proximate cause of the collision was the negligence and recklessness of the driver of the jeepney, that as a professional driver, Reynaldo is presumed to be familiar with traffic rules and regulations, including the right of way accorded to trains at railroad crossing and the precautionary measures to observe in traversing the same. That in utter disregard of the right of way enjoyed by PNR trains, he failed to bring his jeepney to a full stop before crossing the railroad track and thoughtlessly followed the ten-wheeler truck ahead of them. His failure to maintain a safe distance between the jeepney he was driving and the truck ahead of the same prevented him from seeing the PNR signage displayed along the crossing. Both courts ruled that the PNR fell short of the diligence expected of it, taking into consideration the nature of its business, to forestall any untoward incident. In particular, the PNR failed to install safety railroad bars to prevent motorists from crossing the tracks in order to give way to an approaching train. Aside from the absence of a crossing bar, the Stop, Look and Listen signage installed in the area was poorly maintained, hence, inadequate to alert the public of the impending danger. A reliable signaling device in good condition, not just a dilapidated Stop, Look and Listen signage, is needed to give notice to the public. It is the responsibility of the railroad company to use reasonable care to keep the signal devices in working order. Failure to do so would be an indication of negligence. There was no contributory negligence on the part of the respondents. They were not even aware of the forthcoming danger. The jeepney carrying the respondents was following a 10-wheeler truck. It bears noting that the prevailing circumstances immediately before the collision did not manifest even the slightest indication of an imminent harm. To begin with, the truck they were trailing was able to safely cross the track. There was no crossing bar to prevent them from proceeding or, at least, a stoplight or signage to forewarn them of the approaching peril. Thus, relying on his faculties of sight and hearing, Reynaldo had no reason to anticipate the impending danger. Railroad companies owe to the public a duty of exercising a reasonable degree of care to avoid injury to persons and property at railroad crossings, which duties pertain both to the operation of trains and to the maintenance of the crossings. The responsibility of the PNR to secure public safety does not end with the installation of safety equipment and signages but, with equal measure of accountability, with the upkeep and repair of the same. As held in Cusi v. PNR, if warning devices are installed in railroad crossings, the travelling public has the right to rely on such warning devices to put them on their guard and take the necessary precautions before crossing the tracks. The doctrine of last clear chance is not applicable. The doctrine of last clear chance provides that where both parties are negligent but the negligent act of one is appreciably later in point of time than that of the other , or where it is impossible to determine whose fault or negligence brought about the occurrence of the incident, the one who had the last clear opportunity to avoid the impending harm but failed to do so, is chargeable with the consequences arising therefrom. Stated differently, the rule is that the antecedent negligence of a person does not preclude recovery of damages caused by the supervening negligence of the latter, who had the last fair chance to prevent the impending harm by the exercise of due diligence. To reiterate, the proximate cause of the collision was the PNRs negligence in ensuring that motorists and pedestrians alike may safely cross the railroad track. The unsuspecting driver and passengers of the jeepney did not have any participation in the occurrence of the unfortunate incident which befell them. Likewise, they did not exhibit any overt act manifesting disregard for their own safety . Thus, absent preceding negligence on the part of the respondents, the doctrine of last clear chance cannot be applied. 3. Achevara v. Ramos, G.R. No. 175172, September 29, 2009 Facts: Arnulfo Ramos died in a vehicular accident that happened at the national highway along Candon, Ilocos Sur. Elvira Ramos and her two minor children, filed a Complaint for damages under Article 2176 against Cresencia Achevara (operator of passenger jeep), Alfredo Achevara (husband of the operator and as administrator of the conjugal partnership properties of the Sps Achevara) and Benigno Valdez (driver) for the death of her husband Arnulfo Ramos.. It was alleged in the complaint that Benigno Valdez was driving a passenger jeep heading north on the national highway in a reckless, careless, and negligent manner; that he tried to overtake a motorcycle, causing his passenger jeep to encroach on the opposite lane and bump the oncoming vehicle driven by Arnulfo Ramos. Injuries sustained by Arnulfo 104 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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Ramos caused his death. It was alleged that Crescencia Achevara failed to exercise due diligence in the selection and supervision of Benigno Valdez as driver of the passenger jeep. Alfredo Gamera (for Ramos) o working as a jueteng collector at the same joint where the deceased Arnulfo Ramos was also employed o testified that at about 10:00 a.m. of April 22, 1995, he and his wife were seated at the waiting shed along the national highway in Candon, Ilocos Sur, waiting for a ride to the town proper of Candon. o saw a motorcycle, driven by Police Officer 3 (PO3) Baltazar de Peralta, coming from the interior part of Tablac and proceeding south toward the town proper. He also saw a southbound passenger jeep, driven by Benigno Valdez, that wanted to overtake the motorcycle of PO3 De Peralta. o testified that a passenger jeep encroached on the lane of the northbound owner-type jeep driven by Arnulfo Ramos, which resulted in the collision. o point of impact was on the lane of the vehicle of Arnulfo Ramos. o he was about 100 meters from the place where the vehicular accident occurred. o speed of the passenger jeep was about 70 kilometers per hour, while that of the owner-type jeep was about 30 kilometers per hour. o On cross-examination, it was found that Gamera went to the Police Station in Candon, Ilocos Sur to execute his sworn statement only on May 30, 1992, one month after the incident and after respondent Elvira Ramos talked to him o at the preliminary investigation, Gamera did not mention in his sworn statement that his wife was present during the incident

*wife also testified as to the damages incurred, Doctor testified as to cause of death PO3 Baltazar de Peralta (for Achevera) o testified that at about 9:00 a.m. of April 22, 1995, he was on board his motorcycle at the waiting shed. He was about to go southward, but waited a while to let a southbound passenger jeep pass by. Then he followed behind the passenger jeep. o When the passenger jeep was about 75 meters away from him on the western lane of the national highway, PO3 De Peralta spotted an owner-type jeep coming from the south on the eastern lane of the road. o owner-type jeep was running in a zigzag manner as it went over the many holes on the road. It did not slacken speed, causing the jeeps front wheels to wiggle, before it bumped the passenger jeep coming from the north. o collision occurred on the lane of the passenger jeep, about two feet away from the center line of the road, causing the owner-type jeep to turn around and return to its former position, with its right wheel removed; while the passenger jeep veered to the right lane. o accident happened on a straight part of the highway, but there were many holes on the eastern lane. He stated that nothing impeded his view of the incident o known respondents witness, Alfredo Gamera, who was his barangay mate for 20 years. He declared that he never saw Gamera at the waiting shed or at the scene of the incident on the morning of April 22, 1995. Herminigildo Pagaduan o testified that at 7:00 a.m. of April 22, 1995, he was at the house of Barangay Captain Victorino Gacusan o Gacusan was then the overall monitor of the jueteng joint o Pagaduan and Gacusan had earlier agreed to attend the wake of an army captain that morning. While Pagaduan was waiting for Barangay Captain Gacusan, the latter made a phone call requesting for a vehicle to take them to Tamorong o Not long after, a yellow owner-type jeep arrived, which was driven by Arnulfo Ramos, an employee of the jueteng joint. All of them rode the jeep o Barangay Captain Gacusan was on the drivers seat, Pagaduan sat beside Gacusan, while Arnulfo Ramos and the others sat on the rear seat. o the group headed west to Tamorong via Darapidap. When they reached a bridge, Barangay Captain Gacusan tried to increase the speed of the jeep, but it suddenly wiggled. o Gacusan stopped the jeep, and they all alighted from it o did not proceed to Tamorong, but returned to the house of Gacusan by tricycle. o next day, he heard from Gacusan that the jeep they had used in their aborted trip to Tamorong met an accident Benigno Valdez (for Achevera) o driving the passenger jeep of his aunt, Crescencia Achevara, on the national highway in Tablac, Candon, Ilocos Sur heading south, while the owner-type jeep of Arnulfo Ramos was heading north. o owner-type jeep was wiggling and running fast in a zigzag manner, when its right front wheel got detached and the owner-type jeep bumped the left side of his passenger jeep. Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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Valdez swerved the passenger jeep to the western edge of the road to avoid a collision, but to no avail, as it bumped a post. He passed out. surrendered himself to the Police Station

Alfredo Achevara (for Achevera) o declared that before they employed Benigno Valdez to drive the passenger jeep, the former exercised the diligence of a good father of a family in selecting, training and supervising the latter o required Valdez to show them his professional drivers license, and investigated his personal background and training/experience as a driver. o For apprenticeship, they required him to drive from Metro Manila to Tagaytay City, and then back to Metro Manila for a day. o Trial court held that the doctrine of last clear chance, as contended by Ramos, was applicable to this case. CA affirmed. Issue: Whether or Achevera are liable to Ramos. Held: Ramos version of the vehicular accident was rebutted by Acheverra. Testimony of Alfredo Gamera, that the vehicular accident occurred because the passenger jeep driven by Benigno Valdez tried to overtake the motorcycle driven by PO3 and encroached on the lane of the owner-type jeep, which resulted in the collision, was refuted by PO3 Baltazar de Peralta, who testified that the passenger jeep did not overtake his motorcycle since he was the one following behind the passenger jeep. Gamera also testified that the collision took place on the lane of the owner-type jeep, about 2 meters east the center line of the national highway. However, SPO2 Marvin Valdez, who investigated the incident, found both vehicles on the western lane of the national highway. It is undeniable that the collision took place on the western lane of the national highway or the lane of the passenger jeep driven by Benigno Valdez. It was the owner-type jeep driven by Arnulfo Ramos that encroached on the lane of the passenger jeep. Court also found Arnulfo Ramos guilty of gross negligence for knowingly driving a defective jeep on the highway . An ordinarily prudent man would know that he would be putting himself and other vehicles he would encounter on the road at risk for driving a mechanically defective vehicle. Under the circumstances, a prudent man would have had the owner-type jeep repaired or would have stopped using it until it was repaired. Ramos negligence in driving the owner-type jeepdespite knowledge of its mechanical defect, and his failure to have it repaired first before driving, to prevent damage to life and propertydid not only constitute contributory negligence. Ramos negligence was the immediate and proximate cause of the accident. Since foreseeability is the fundamental basis of negligence, Valdez could not have foreseen that an accident might happen due to the mechanical defect in the vehicle of Ramos . It was Ramos alone who fully knew and could foresee that an accident was likely to occur if he drove his defective jeep, which indeed happened. Hence, the proximate cause of the vehicular accident was the negligence of Ramos in driving a mechanically defective vehicle. The acts of negligence of Arnulfo Ramos and Benigno Valdez were contemporaneous when Ramos continued to drive a wiggling vehicle on the highway despite knowledge of its mechanical defect , while Valdez did not immediately veer to the rightmost side of the road upon seeing the wiggling vehicle of Ramos perhaps because it still kept to its lane and Valdez did not know the extent of its mechanical defect. When the owner-type jeep encroached on the lane of the passenger jeep, Valdez realized the peril at hand and steered the passenger jeep toward the western shoulder of the road to avoid a collision. It was at this point that it was perceivable that Ramos must have lost control of his vehicle, and that it was Valdez who had the last opportunity to avoid the collision by swerving the passenger jeep towards the right shoulder of the road. The doctrine of last clear chance applies to a situation where the plaintiff was guilty of prior or antecedent negligence, but the defendantwho had the last fair chance to avoid the impending harm and failed to do sois made liable for all the consequences of the accident, notwithstanding the prior negligence of the plaintiff . However, the doctrine does NOT apply 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. Even if it can be said that it was Benigno Valdez who had the last chance to avoid the mishap when the owner-type jeep encroached on the western lane of the passenger jeep, Valdez no longer had the opportunity to avoid the collision. When the owner-type jeep encroached on the lane of the passenger jeep, Benigno Valdez maneuvered his vehicle towards the western shoulder of the road to avoid a collision, but the owner-type jeep driven by Ramos continued to move to the western lane and bumped the left side of the passenger jeep. The time the owner-type jeep encroached on the lane of Valdez to the time of impact was only a matter of seconds , he no longer had the opportunity to avoid the collision.

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Both Arnulfo Ramos and Benigno Valdez failed to exercise reasonable care and caution that an ordinarily prudent man would have taken to prevent the vehicular accident. Since the gross negligence of Arnulfo Ramos and the inexcusable negligence of Benigno Valdez were the proximate cause of the vehicular accident, respondents cannot recover damages pursuant to Article 2179. 4. Bank of America NT & SA v. Philippine Racing Club, G.R. No. 150228, July 30, 2009 Facts: PRCI maintains several accounts, one of which is with petitioner BA. The authorized joint signatories with respect to said account were PRCIs President (Antonia Reyes) and VP for Finance (Gregorio Reyes). Both of them were scheduled to go out of the country sometime later in connection with the corporation s business. In order not to disrupt operations in their absence, they pre-signed several checks relating to their account with BA. The intention was to insure continuity of PRCIs operations by making available cash/money especially to settle obligations that might become due. These checks were entrusted to the accountant with instruction to make use of the same as the need arose. The internal arrangement was, in the event there was need to make use of the checks, the accountant would prepare the corresponding voucher and thereafter complete the entries on the pre-signed checks. However, it turned out later that a John Doe (later found out to be Clarita Mesina, an employee of PRCI) presented to BA for encashment 2 checks of PRCI, each with an indicated value of P110,000. These checks were among those pre-signed by the authorized signatories of PRCI. The 2 checks had similar entries with similar infirmities and irregularities. On the space where the name of the payee should be indicated (Pay To The Order Of) the following 2-line entries were instead typewritten: on the upper line was the word CASH while the lower line had the following typewritten words, viz: ONE HUNDRED TEN THOUSAND PESOS ONLY. Despite all these irregularities/infirmities and the substantial amount involved, BA never even verified or confirmed the legitimacy of the checks. Not even a verification process or a phone call was made. Neither was there a transaction by PRCI that calls for payment of P220,000. Hence PRCI demanded payment from BA which fell to deaf-ears. Hence PRCI filed the complaint. Issue: (1) Whether or not the proximate cause of the wrongful encashment was due to the negligence of BA or the practice of PRCI in pre-signing the checks and leaving it with his employees. (2) Whether or not BA had the last clear chance in preventing the unauthorized encashment of checks. Held: BAs NEGLIGENCE was the cause of the loss. Conversely, BA had the last clear chance to avoid the loss . It is well-settled that banks are engaged in a business impressed with public interest, and it is their duty to protect in return their many clients and depositors who transact business with them. They have the obligation to treat their clients account meticulously and with the highest degree of care, considering the fiduciary nature of their relationship. The diligence required of banks, therefore, is more than that of a good father of a family. All these circumstances should have alerted the bank to the possibility that the holder or the person who is attempting to encash the checks did not have proper title to the checks or did not have authority to fill up and encash the same. As noted by the CA, BA could have made a simple phone call to its client to clarify the irregularities and the loss to PRCI due to the encashment of the stolen checks would have been prevented. In the case at bar, extraordinary diligence demands that BA should have ascertained from PRCI the authenticity of the subject checks or the accuracy of the entries therein not only because of the presence of highly irregular entries on the face of the checks but also of the decidedly unusual circumstances surrounding their encashment. PRCIs witness testified that for checks in amounts greater than P20,000.00 it is the companys practice to ensure that the payee is indicated by name in the check. This was not rebutted by PRCI. Indeed, it is highly uncommon for a corporation to make out checks payable to CASH for substantial amounts such as in this case. If each irregular circumstance in this case were taken singly or isolated, the banks employees might have been justified in ignoring them. However, the confluence of the irregularities on the face of the checks and circumstances that depart from the usual banking practice of PRCI should have put BAs employees on guard that the checks were possibly not issued by the respondent in due course of its business. BAs subtle sophistry cannot exculpate it from behavior that fell extremely short of the highest degree of care and diligence required of it as a banking institution. The court however agrees that PRCIs practice of pre-signing its checks should be deemed seriously negligent behavior and a highly risky means of ensuring the efficient operation of business. Nevertheless , while both parties were guilty of negligent acts that led to the loss. BA will still emerge as the party foremost liable in this case. In instances where both parties are at fault, this Court has consistently applied the doctrine of last clear chance in order to assign liability. Under that doctrine, the one who had a last clear opportunity to avoid the impending harm but failed to do so is chargeable with the consequences thereof.

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BA had the final opportunity to avert the injury that befell the PRCI. Failing to make the necessary verification due to the volume of banking transactions on that particular day is a flimsy and unacceptable excuse, considering that the banking business is so impressed with public interest where the trust and confidence of the public in g eneral is of paramount importance such that the appropriate standard of diligence must be a high degree of diligence, if not the utmost diligence. 5. Lapanday Agricultural and Development Corporation (LADECO) v. Angala, G.R. No. 153076, June 21, 2007 Facts: On May 1993 at 2:45PM, a Datsun crewcab owned by LADECO and driven by Deocampo collided with a Chevy pickup owned by Angala and driven by Borres. Both vehicles were running along Castillo St. Davao City heading towards Lanang when the accident occurred. Angala filed an action for quasi-delict and damages against LADECO & Deocampo. It claims that his pickup was slowing down to about 5-10KPH and was making a left turn when it was bumped from behind by the crewcar who was running at around 60-70 kph. The complaint also contended that the crewcab only stopped after 21 meters from the point of impact. Angala testified that since he was seated at the back, he could see a blinking light indicating the signal to turn left as well as the speedometer. On the other hand, Deocampo claimed that wen the pickup was about 10 meters away from the crewcar when it made a Uturn towards the left. He also testified that no turning signal was seen from the pickup. Moreso, he alleged that he tried to avoid the pickup but he was unable to avoid the collision. He also said that he did not apply the breaks because the collision was inevitable. RTC held LADECO & Deocampo solidarily liable. CA affirmed in toto. Hence, this petition. Issue: Whether Angala is entitled damages awarded. Held: YES. Both parties were found to be negligence in this case. Borres (Angalas driver) was at the outer lane when he executed the U-turn in violation of RA 4136 regarding the rule on turning at intersections. He should have stayed at the inner lane. On the other hand, Deocampo was equally negligent. Borres slowed down prior to making the U-turn. As such Deocampo should have also slowed down especially since he noticed the pickup as far as 20 meters away. Moreover, traffic was light at that time. In fact, they were the only vehicles in the street. Deocampo could have avoided the crewcab if he was not driving fast before the collision. Since both parties are negligent, the doctrine of LAST CLEAR CHANCE applies . This docrine states that where both parties are negligent but the negligent act of one is appreciably later than that of the other, or where it is impossible to determine whose fault or negligence caused the loss , the one who had the last clear opportunity to avoid the loss but failed to do so is chargeable with the loss. Here, Deocampo had the last clear chance to avoid the collision. Since Deocampo was driving the rear vehicle, he had full control of the situation since he was in a position to observe the vehicle in front of him. Deocampo had the responsibility of avoiding bumping the vehicle in front of him. A U-turn is done at a much slower speed to avoid skidding and overturning, compared to running straight ahead. Deocampo could have avoided the vehicle if he was not driving very fast while following the pick-up. Deocampo was not only driving fast, he also admitted that he did not step on the brakes even upon seeing the pick-up. He only stepped on the brakes after the collision. LADECO is solidarily liable wth Deocampo for failing to prove that it exercised due diligence. 6. Tiu v. Arriesgado, 437 SCRA 426 (2004) Facts: At about 10PM. of March 1987, the cargo truck was loaded with firewood and left for Cebu City. Upon reaching Compostela, Cebu, just as the truck passed over a bridge, one of its rear tires exploded. The driver, Sergio Pedrano, then parked along the right side of the national highway and removed the damaged tire to have it vulcanized at a nearby shop, about 700 m away. Pedrano left his helper, Jose Mitante, Jr. to keep watch over the stalled vehicle, and instructed the latter to place a spare tire 6 fathoms away behind the stalled truck to serve as a warning for oncoming vehicles. The trucks tail lights were also left on. It was about 12mn. At about 4:45 AM., A passenger bus with plate number PBP-724 driven by Virgilio Te Laspias was cruising along the same national highway. The passenger bus was also bound for Cebu City, and had come from Maya, Daanbantayan, Cebu. Among its passengers was the Spouses Arriesgado. As the bus was approaching the bridge, Laspias saw the stalled truck, which was then about 25 meters away. He applied the break and tried to swerve to the left to avoid hitting the truck. But it was too late; the bus rammed into the trucks left rear. The impact damaged the right side of the bus and left several passengers injured. Pedro Arriesgado lost 108 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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consciousness and suffered a fracture in his right collar. His wife, Felisa, was brought to the Danao City Hospital. She was later transferred to the Southern Island Medical Center where she died shortly thereafter. PedroArriesgado then filed a complaint for breach of contract of carriage, damages and attorneys fees before the RTC, against the Tiu (bus operator) and his driver, Laspias on May 27, 1987. Arriesgado alleged that the passenger bus in question was cruising at a fast and high speed along the national road, and that Laspias did not take precautionary measures to avoid the accident. They alleged that Laspias was negotiating the uphill climb along the national highway in a moderate and normal speed. It was further alleged that the truck was parked in a slanted manner, its rear portion almost in the middle of the highway, and that no early warning device was displayed. Laspias promptly applied the brakes and swerved to the left to avoid hitting the truck head-on, but despite his efforts to avoid damage to property and physical injuries on the passengers, the right side portion of the bus hit the cargo trucks left rear. They further alleged that the cargo truck is owned by Benjamin Condor and was left unattended by its driver Sergio Pedrano at the time of the incident; and that third-party defendant Sergio Pedrano, as driver of the cargo truck and Benjamin Condor, as the registered owner who failed to exercise due diligence in the selection and supervision of Pedrano, are jointly and severally liable to the third-party plaintiffs for whatever liability that may be adjudged. Finally, they claim that during the vehicular accident in question, third-party defendant was clearly violating Section 34, par. (g) of the Land Transportation and Traffic Code. Issue: Whether the driver/owner of the bus are liable with the driver/owner of the parked truck. Held: SOLIDARILY LIABLE. Laspias claimed that he was traversing the two-lane road at Compostela, Cebu at a speed of only 40-50 kphr before the incident occurred. He also admitted that he saw the truck which was parked in an oblique position at about 25 meters before impact, and tried to avoid hitting it by swerving to the left. However, even in the absence of expert evidence, the damage sustained by the truck itself supports the finding of both the trial court and the appellate court, that the passenger bus driven by Laspias was traveling at a fast pace. Since he saw the stalled truck at a distance of 25 meters, Laspias had more than enough time to swerve to his left to avoid hitting it; that is, if the speed of the bus was only 40 to 50 KPH as he claimed. As found by the CA, it is easier to believe that Laspias was driving at a very fast speed, since at 4:45 a.m., the hour of the accident, there were no oncoming vehicles at the opposite direction. Laspias could have swerved to the left lane with proper clearance, and, thus, could have avoided the truck. Instinct, at the very least, would have prompted him to apply the breaks to avert the impending disaster which he must have foreseen when he caught sight of the stalled truck. As shown by preponderance of evidence that Laspias failed to observe extraordinary diligence as a driver of the common carrier in this case. It is quite hard to accept his version of the incident that he did not see at a reasonable distance ahead the cargo truck that was parked when the Rough Rider [Bus] just came out of the bridge which is on an more elevated position than the place where the cargo truck was parked. With its headlights fully on, defendant driver of the Rough Rider was in a vantage position to see the cargo truck ahead which was parked and he could just easily have avoided hitting and bumping the same by maneuvering to the left without hitting the said cargo truck. Besides, it was shown that there was still much room or space for the Rough Rider to pass at the left lane of the said national highway even if the cargo truck had occupied the entire right lane thereof. It is not true that if the Rough Rider would proceed to pass through the left lane it would fall into a canal considering that there was much space for it to pass without hitting and bumping the cargo truck at the left lane of said national highway. The records, further, showed that there was no incoming vehicle at the opposite lane of the national highway which would have prevented the Rough Rider from not swerving to its left in order to avoid hitting and bumping the parked cargo truck. But the evidence showed that the Rough Rider instead of swerving to the still spacious left lane of the national highway plowed directly into the parked cargo truck hitting the latter at its rear portion; and thus, the (sic) causing damages not only to herein plaintiff but to the cargo truck as well. Indeed, Laspinas negligence in driving the bus is apparent in the records. By his own admission, he had just passed a bridge and was traversing the highway of Compostela, Cebu at a speed of 40 to 50 KPH before the collision occurred. The maximum speed allowed by law on a bridge is only 30 KPH. And, as correctly pointed out by the trial court, petitioner Laspias also violated Section 35 of the Land Transportation and Traffic Code, Republic Act No. 4136, as amended: Sec. 35. Restriction as to speed. (a) Any person driving a motor vehicle on a highway shall drive the same at a careful and prudent speed, not greater nor less than is reasonable and proper, having due regard for the traffic, the width of the highway, and or any other condition then and there existing; and no person shall drive any motor vehicle upon a highway at such speed as to endanger the life, limb and property of any person, nor at a speed greater than will permit him to bring the vehicle to a stop within the assured clear distance ahead . Under Article 2185 of the Civil Code, a person driving a vehicle is presumed negligent if at the time of the mishap, he was violating any traffic regulation. 109 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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Contrary to the Tius contention, the principle of last clear chance is inapplicable in the instant case, as it only applies in a suit between the owners and drivers of 2 colliding vehicles. It does not arise where a passenger demands responsibility from the carrier to enforce its contractual obligations , for it would be inequitable to exempt the negligent driver and its owner on the ground that the other driver was likewise guilty of negligence. The common law notion of last clear chance permitted courts to grant recovery to a plaintiff who has also been negligent provided that the defendant had the last clear chance to avoid the casualty and failed to do so . Accordingly, it is difficult to see what role, if any, the common law of last clear chance doctrine has to play in a jurisdiction where the common law concept of contributory negligence as an absolute bar to recovery by the plaintiff, has itself been rejected, as it has been in Article 2179. Thus, Tiu cannot escape liability for the death of Arriesgados wife due to the negligence of Laspinas, his employee, on this score. As shown by preponderance of evidence that Laspias failed to observe extraordinary diligence as a driver of the common carrier in this case. It is quite hard to accept his version of the incident that he did not see at a reasonable distance ahead the cargo truck that was parked when the Rough Rider [Bus] just came out of the bridge which is on an more elevated position than the place where the cargo truck was parked. With its headlights fully on, defendant driver of the Rough Rider was in a vantage position to see the cargo truck ahead which was parked and he could just easily have avoided hitting and bumping the same by maneuvering to the left without hitting the said cargo truck. Besides, it was shown that there was still much room or space for the Rough Rider to pass at the left lane of the said national highway even if the cargo truck had occupied the entire right lane thereof. It is not true that if the Rough Rider would proceed to pass through the left lane it would fall into a canal considering that there was much space for it to pass without hitting and bumping the cargo truck at the left lane of said national highway. The records, further, showed that there was no incoming vehicle at the opposite lane of the national highway which would have prevented the Rough Rider from not swerving to its left in order to avoid hitting and bumping the parked cargo truck. But the evidence showed that the Rough Rider instead of swerving to the still spacious left lane of the national highway plowed directly into the parked cargo truck hitting the latter at its rear portion; and thus, they causing damages not only to herein plaintiff but to the cargo truck as well. Indeed, Laspinas negligence in driving the bus is apparent in the records. By his own admission, he had just passed a bridge and was traversing the highway of Compostela, Cebu at a speed of 40 to 50 KPH before the collision occurred. The maximum speed allowed by law on a bridge is only 30 KPH. In this case, both the trial and the CA failed to co nsider that Pedrano was also negligent in leaving the truck parked askew without any warning lights or reflector devices to alert oncoming vehicles , and that such failure created the presumption of negligence on the part of his employer, E. Prescription Civil Code o Article 1146

1. Ferrer v. Ericta, G.R. No. L-41767, August 23, 1978 Facts: A complaint for damages dated December 27, 1974 but actually filed on January 6, 1975 was filed against Mr. and Mrs. Francis as owners or operators of a Ford pick-up car. It was alleged that at about 5:00 pm of December 31, 1970, their son, Dennis Pfleider, who was then only 16, without proper official authority, drove the above-described vehicle, without due regard to traffic rules and regulations, and without taking the necessary precaution and as a consequence the pickup car was overturned, causing physical injuries to Annette Ferrer, who was then a passenger therein, which injuries paralyzed her and required medical treatment and confinement at different hospitals for more than 2 years. The Spouses filed their answer, putting up the affirmative defense that Dennis Pfleider exercised due care and utmost diligence in driving the vehicle; alleging that Ferrer and the other persons aboard said vehicle were not passengers in the strict sense of the term, but were merely joy riders and that, consequently, Sps Francis had no obligation whatsoever to Ferrer. At the pre-trial on May 12, 1975, only Ferrer and counsel were present. Spouses were declared in default and Ferrer was allowed to present their evidence ex parte. On June 26, 1975, Spouses filed a motion to set aside the order of default and subsequent pleadings on the ground that their failure to appear for pre-trial was due to accident or excusable neglect. This was opposed by petitioners. The motion of the Spouses was denied. On the same date, Judge Ericta rendered judgment against Spouses, finding that the minor, Dennis Pfleider, was allowed by his parents to operate a Ford pick-up car and because of his reckless negligence caused the accident on July 21, 1975. 110 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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On September 1,1975, Spouses filed an MR of the decision and of the order denying the motion to set aside order of default contending that the complaint shows on its face that it was filed only on January 6, 1975, or after the lapse of MORE THAN FOUR YEARS from the date of the accident on December 31, 1970, likewise appearing from the complaint and, therefore, the action has already prescribed. In opposition, the Ferrer maintained, among others, that the defense of prescription had been waived because it was not alleged in the Answer. Judge Ericta issued an order absolving the Spouses from any liability on the ground of prescription since the complaint was filed more than 4 years after the date of the accident, and the action to recover damages based on quasidelict prescribes in 4 years. Hence, this petition for mandamus. Issue; Whether the defense of prescription had been deemed waived by the Spouses failure to allege the same in their answer. Held: NOT WAIVED. ACTION HAS PRESCRIBED. As early as Chua Lamko v. Dioso, this Court sustained the dismissal of a counterclaim on the ground of prescription, although such defense was not raised in the answer of the plaintiff. Where the answer does not take issue with the complaint as to dates involved in the defendants claim of prescription, his failure to specifically plead prescription in the answer does not constitute a waiver of the defense of prescription, it was explained that the defense of prescription, even if not raised in a motion to dismiss or in the answer, is not deemed waived UNLESS such defense raises issues of fact not appearing upon the preceding pleading. In a case, it was said that while it is true that the defense of prescription can only be considered if the same is invoked as such in the answer of the defendant and that in this particular instance no such defense was invoked because the defendants had been declared in default, but such rule does not obtain when the evidence shows that the cause of action upon which plaintiffs co mplaint is based is already barred by the statute of limitations . In another case, it was patent from the stamp appearing on the first page of the complaint that the complaint was actually filed on May 31, 1963, this Court sustained the dismissal of the complaint on the ground of prescription, although such defense was not raised in the answer. Section 2 of Rule 9 of the Rules of Court that defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. The fact that the plaintiffs own allegation in the complaint or the evidence it presented shows clearly that the action had prescribed removes this case from the rule regarding waiver of the detense by failure to plead the same. There is no issue of fact involved in connection with the question of prescription. The complaint alleged that the accident occurred on December 31, 1970. It is undisputed that the action for damages was only filed on January 6, 1975. Actions for damages arising from physical injuries because of a tort must be filed within 4 years. The 4-year period begins from the day the quasi-delict is committed or the date of the accident. 2. Kramer v. Court of Appeals, 178 SCRA 518 (1989) Facts: In the early morning of April 8, 1976, a fishing boat (owned by Kramer) figured in a collision (en route from Marinduque to Manila) with an inter-island vessel, the M/V Asia Philippines owned by the private respondent TransAsia Shipping Lines, Inc. The F/B Marjolea sank, taking with it its fish catch. After the mishap, the captains of both vessels filed their respective marine protests with the Board of Marine Inquiry of the Philippine Coast Guard. The Board conducted an investigation for the purpose of determining the proximate cause. On October 19, 1981, the Board concluded that the loss of the F/B Marjolea and its fish catch was attributable to the negligence of the employees of the private respondent who were on board the M/V Asia Philippines during the collision. The findings made by the Board served as the basis of a subsequent Decision of the Commandant of the Philippine Coast Guard dated April 29, 1982 wherein the second mate of the M/V Asia Philippines was suspended. On May 30, 1985, the petitioners instituted a Complaint for damages against the private respondent. Issue: Whether or not a Complaint for damages instituted by Kramer against TransAsia arising from a marine collision barred by statute of limitation. Held: BARRED. The TransAsia filed a Motion seeking the dismissal of the Complaint on the ground of prescription. He argued that under Article 1146, the prescriptive period for instituting a Complaint for damages arising from a quasidelict like a maritime collision is 4 years. He maintained that the Kramer should have filed their Complaint within 4 111 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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years from the date when their cause of action accrued, i.e., from April 8, 1976 when the maritime collision took place, and that accordingly, the Complaint filed on May 30, 1985 was instituted beyond the four-year prescriptive period. For their part, the Kramer contended that maritime collisions have peculiarities and characteristics which only persons with special skill, training and experience like the members of the Board of Marine Inquiry can properly analyze and resolve. The Kramer argued that the running of the prescriptive period was tolled by the filing of the marine protest and that their cause of action accrued only on April 29, 1982, the date when the Decision ascertaining the negligence of the crew of the M/V Asia Philippines had become final, and that the 4-year prescriptive period under Article 1146 of the Civil Code should be computed from the said date. The petitioners concluded that inasmuch as the Complaint was filed on May 30, 1985, the same was seasonably filed. Under Article 1146 of the Civil Code, an action based upon a quasi-delict must be instituted within four (4) years. The prescriptive period begins from the day the quasi-delict is committed. The right of action accrues when there exists a cause of action, which consists of 3 elements, namely: a) a right in favor of the plaintiff by whatever means and under whatever law it arises or is created; b) an obligation on the part of defendant to respect such right; and c) an act or omission on the part of such defendant violative of the right of the plaintiff. It is only when the last element occurs or takes place that it can be said in law that a cause of action has arisen. The prescriptive period must be counted when the last element occurs or takes place , that is, the time of the commission of an act or omission violative of the right of the plaintiff, which is the time when the cause of action arises. In this action for damages arising from the collision of 2 vessels, the 4 year prescriptive period must be counted from the day of the collision. The aggrieved party need not wait for a determination by an administrative body like a Board of Marine Inquiry, that the collision was caused by the fault or negligence of the other party before he can file an action for damages. Immediately after the collision the aggrieved party can seek relief from the courts by alleging such negligence or fault of the owners, agents or personnel of the other vessel. Thus, the court correctly found that the action of Kramer has prescribed. The collision occurred on April 8, 1976. The complaint for damages was filed in court only on May 30, 1985, was beyond the four (4) year prescriptive period. 3. Santos v. Pizardo, G.R. No. 151452, July 29, 2005 Facts: In an Information dated 25 April 1994, Sibayan was charged with Reckless Imprudence Resulting to Multiple Homicide and Multiple Physical Injuries. The Viron Transit Bus driven by Sibayan collided with a Lite Ace, killing the driver and 3 passengers thereof. 5 passengers were injured. He was convicted and sentenced to 2 years, 4 months, and 1 day to 4 years and 2 months. However, a separate civil action was reserved; no civil liability was pronounced. On October 2000, petitioners filed a complaint for damages against Sibayan, Viron Transit, and its President/Chairman pursuant to their reservation. Viron moved to dismiss on the ground of improper service of summons, prescription, laches, and defective certification of non-forum-shopping. Petitioners opposed as the right to file a separate action prescribes in 10 years. The RTC dismissed, as actions based on quasi-delict prescribes in 4 years, notwithstanding the reservation. The CA dismissed their petition for Certiorari for being the wrong mode of appeal. Issue: Whether or not the cause of action has prescribed. Held: NO. Our Revised Penal Code provides that every person criminally liable for a felony is also civilly liable. Such civil liability may consist of restitution, reparation of the damage caused and indemnification of consequential damages. When a criminal action is instituted, the civil liability arising from the offense is impliedly instituted with the criminal action, subject to 3 notable exceptions: FIRST, when the injured party expressly waives the right to recover damages from the accused; SECOND, when the offended party reserves his right to have the civil damages determined in a separate action in order to take full control and direction of the prosecution of his cause; and THIRD, when the injured party actually exercises the right to maintain a private suit against the offender by instituting a civil action prior to the filing of the criminal case. Notably, it was the 1985 Rules on Criminal Procedure, as amended in 1988, which governed the institution of the criminal action, as well as the reservation of the right to file a separate civil action. Petitioners expressly made a reservation of their right to file a separate civil action as a result of the crime committed by Sibayan. On account of this reservation, the MTC, in its decision convicting Sibayan, did not make any pronouncement as to the latters civil liability. Predicating their claim on the judgment of conviction and their reservation to file a separate civil action made in the criminal case, petitioners filed a complaint for damages against Sibayan, Viron Transit and its President/Chairman. Petitioners assert that by the institution of the complaint, they seek to recover private respondents civil liability arisin g 112 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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from crime. Unfortunately, based on its misreading of the allegations in the complaint, the trial court dismissed the same, declaring that petitioners cause of action was based on quasi delict and should have been brought within 4 years from the time the cause of action accrued, i.e., from the time of the accident. A reading of the complaint reveals that the allegations therein are consistent with petitioners claim that the action was brought to recover civil liability arising from crime. Although there are allegations of negligence on the part of Sibayan and Viron Transit, such does not necessarily mean that petitioners were pursuing a cause of action based on quasi delict, considering that at the time of the filing of the complaint, the cause of action ex quasi delicto had already prescribed. Besides, in cases of negligence, the offended party has the choice between an action to enforce civil liability arising from crime under the Revised Penal Code and an action for quasi delict under the Civil Code . An act or omission causing damage to another may give rise to two separate civil liabilities on the part of the offender, i.e., (1) civil liability ex delicto, under Article 100 RPC; and (2) independent civil liabilities, such as those (a) not arising from an act or omission complained of as a felony, e.g., culpa contractual or obligations arising from law under Article 31, intentional torts under Articles 32 and 34, and culpa aquiliana under Article 2176; or (b) where the injured party is granted a right to file an action independent and distinct from the criminal action under Article 33. Either of these liabilities may be enforced against the offender subject to the caveat under Article 2177 of the that the plaintiff cannot recover damages twice for the same act or omission of the defendant and the similar proscription against double recovery under the Rules above-quoted. At the time of the filing of the complaint for damages in this case, the cause of action ex quasi delicto had already prescribed. Nonetheless, petitioners can pursue the remaining avenue opened for them by their reservation, i.e., the surviving cause of action ex delicto. This is so because the prescription of the action ex quasi delicto does not operate as a bar to an action to enforce the civil liability arising from crime especially as the latter action had been expressly reserved. We held that the dismissal of the action based on culpa aquiliana is not a bar to the enforcement of the subsidiary liability of the employer. Once there is a conviction for a felony, final in character, the employer becomes subsidiarily liable if the commission of the crime was in the discharge of the duties of the employees . This is so because Article 103 of the Revised Penal Code operates with controlling force to obviate the possibility of the aggrieved party being deprived of indemnity even after the rendition of a final judgment convicting the employee. Seen in this light, the trial court should not have dismissed the complaint on the ground of prescription, but instead allowed the complaint for damages ex delicto to be prosecuted on the merits, considering petitioners allegations in their complaint, opposition to the motion to dismiss and motion for reconsideration of the order of dismissal, insisting that the action was to recover civil liability arising from crime. This does not offend the policy that the reservation or institution of a separate civil action waives the other civil actions. The rationale behind this rule is the avoidance of multiple suits between the same litigants arising out of the same act or omission of the offender. However, since the stale action for damages based on quasi delict should be considered waived, there is no more occasion for petitioners to file multiple suits against private respondents as the only recourse available to them is to pursue damages ex delicto. This interpretation is also consistent with the bar against double recovery for obvious reasons. The case is REMANDED. 4. De Guzman v. Toyota Cubao, Inc., G.R. No. 141480, November 29, 2006 Facts: On November 27, 1997, petitioner purchased from respondent a brand new white Toyota Hi-Lux. The vehicle was delivered to petitioner 2 days later. On October 18, 1998, petitioner demanded the replacement of the engine of the vehicle because it developed a crack after traversing Marcos Highway during a heavy rain. Petitioner asserted that Toyota should replace the engine with a new one based on an implied warranty. Respondent countered that the alleged damage on the engine was not covered by a warranty. On April 20, 1999, petitioner filed a complaint for damages against respondent with the RTC. Respondent moved to dismiss as petitioners cause of action had prescribed as the case was filed more than 6 months from the date the vehicle was sold and/or delivered. Since no warranty card or agreement was attached to the complaint, the contract of sale of the subject pick-up carried an implied warranty that it was free from any hidden faults or defects, or any charge or encumbrance not declared or known to the buyer. The prescriptive period thereof is 6 months under the Civil Code (Art. 1571). RTC granted respondents motion and dismissed. RTC denied petitioners motion for reconsideration hence this petition for certiorari. Petitioner contends that under RA No. 7394 (Consumer Act of the Philippines), the prescriptive period is 2 years. Issue: Whether or not the action has prescribed.

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Held: YES. Petitioner specifies that in his complaint, he neither asked for a rescission of the contract of sale nor did he pray for a proportionate reduction of the purchase price. What petitioner claims is the enforcement of the contract, that is, that respondent should replace either the vehicle or its engine with a new one. Petitioner cites Article 169 of Republic Act No. 7394 as the applicable provision, so as to make his suit come within the purview of the 2-year prescriptive period. Tangentially, petitioner also justifies that his cause of action has not yet prescribed because this present suit, which was an action based on quasi-delict, prescribes in four years. Petitioners argument is erroneous. Article 1495 of the Civil Code states that in a contract of sale, the vendor is bound to transfer the ownership of and to deliver the thing that is the object of sale. The Civil Code set forth the available remedies of a buyer against the seller on the basis of a warranty against hidden defects. Under Article 1599, once an express warranty is breached, the buyer can accept or keep the goods and maintain an action against the seller for damages. In the absence of an existing express warranty on the part of the respondent , as in this case, the allegations in petitioners complaint for damages were clearly anchored on the enforceme nt of an implied warranty against hidden defects, i.e., that the engine of the vehicle which respondent had sold to him was not defective. By filing this case, petitioner wants to hold respondent responsible for breach of implied warranty for having sold a vehicle with defective engine. Such being the case, petitioner should have exercised this right within 6 months from the delivery of the thing sold. Since petitioner filed the complaint on April 20, 1999, or more than 19 months counted from November 29, 1997 (the date of the delivery of the motor vehicle), his cause of action had become time-barred. Petitioner contends that the subject motor vehicle comes within the context of Republic Act No. 7394. Petitioner relies on Article 68 (f) (2) in relation to Article 169 of Republic Act No. 7394. Article 4 (q) of the said law defines consumer products and services as goods, services and credits, debts or obligations which are primarily for personal, family, household or agricultural purposes, which shall include, but not limited to, food, drugs, cosmetics, and devices. The following provisions of Republic Act No. 7394 state: Art. 67. Applicable Law on Warranties. The provisions of the Civil Code on conditions and warranties shall govern all contracts of sale with conditions and warranties. Art. 68. Additional Provisions on Warranties. In addition to the Civil Code provisions on sale with warranties, the following provisions shall govern the sale of consumer products with warranty: e) Duration of warranty. The seller and the consumer may stipulate the period within which the express warranty shall be enforceable. If the implied warranty on merchantability accompanies an express warranty, both will be of equal duration. Any other implied warranty shall endure not less than sixty (60) days nor more than one (1) year following the sale of new consumer products. f) Breach of warrantiesx x x xxx 2) In case of breach of implied warranty, the consumer may retain in the goods and recover damages, or reject the goods, cancel the contract and recover from the seller so much of the purchase price as has been paid, including damages. (Emphasis supplied.) ARTICLE 169. Prescription - All actions or claim accruing under the provisions of this Act and the rules and regulations issued pursuant thereto shall prescribe within two (2) years from the time the consumer transaction was consummated or the deceptive or unfair and unconscionable act or practice was committed and in case of hidden defects, from discovery thereof. Under RA No. 7394, the provisions of the Civil Code on conditions and warranties shall govern all contracts of sale with condition and warranties (Art. 67). The duration of the implied warranty (not accompanied by an express warranty, as in this case) shall endure not less than sixty days nor more than one (1) year following the sale of new consumer products (Art. 68, par. [e]). The two (2) year prescriptive period under Art. 169 cannot prevail over Art. 68 because the latter is the specific provision on the matter. Consequently, even if the complaint is made to fall under the Republic Act No. 7394, the same should still be dismissed since the prescriptive period for implied warranty thereunder, which is one year, had likewise lapsed. F. Fortuitous Event Civil Code o Article 1174 (Memorize)

1. Gotesco v. Chatto, 210 SCRA 18 (1992) Facts: In the afternoon of June 4, 1982 Gloria E. Chatto, and her 15-year old daughter, Lina went to see the movie Mother Dear at Superama I theater, owned by Gotesco Investment Cor poration. Hardly 10 minutes after entering the theater, the ceiling of its balcony collapsed. Pandemonium ensued. Shocked and hurt, Chattos managed to crawl under 114 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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the fallen ceiling. They walked to the nearby FEU Hospital where they were confined and treated for 1 day and subsequently transferred to the UST hospital. Due to continuing pain in the neck, headache, and dizziness, plaintiff went toUSA in July 1982 for further treatment. She stayed in the U.S. for about 3 months during which time she had to return to the Cook County Hospital 5 or 6 times. Gtesco tried to avoid liability by alleging that the collapse of the ceiling of its theater was done due to force majeure. Gotesco maintained that its theater did not suffer from any structural or construction defect. During the trial, Mr. Ong, employee of Gotesco, testified that he personally inspected the buildings whenever he could (but did not give specific dates). He also testified that an investigation was conducted. However, there were no results with respect to said investigation in connection to the cause of the collapsed. He literally could not give any specific reason therefor. (PROBABLY DUE TO THE FACT THAT HE WASN Trial Court ruled in favor of the Chattos. CA affirmed. CA held: The lower court did not also err in its finding that the collapse of the ceiling of the theaters balcony was due to construction defects and not to force majeure. It was the burden of defendant-appellant to prove that its theater did not suffer from any structural defect when it was built and that it has been well maintained when the incident occurred. Considering the collapse of the ceiling of its theaters balcony barely 4 years after its construction, it behooved defendant-appellant to conduct an exhaustive study of the reason for the tragic incident. There was no authoritative investigation conducted by impartial civil and structural engineers on the cause of the collapse of the theaters cei ling. Jesus Lim Ong is not an engineer. He is a graduate of architecture from the St. Louie (sic) University in Baguio City. It does not appear he has passed the government examination for architects. The ignorance of Mr. Ong about the cause of the collapse of the ceiling of their theater cannot be equated as an act of God. To sustain that proposition is to introduce sacrilege in our jurisprudence. Issue: Whether or not the incident was due to force majeure. Held: NO. Having interposed it as a defense, it had the burden to prove that the collapse was indeed caused by force majeure. It could not have collapsed without a cause. That Mr. Ong could not offer any explanation does not imply force majeure. Gotesco could have easily discovered the cause of the collapse if indeed it were due to force majeure. The real reason why Mr. Ong could not explain the cause or reason is that either he did not actually conduct the investigation or that he is, as the CA impliedly held, incompetent. He is not an engineer, but an architect who had not even passed the governments examination. Verily, the post-incident investigation cannot be considered as material to the present proceedings . What is significant is the finding that the collapse was due to CONSTRUCTION DEFECTS. There was no evidence offered to overturn this finding. The building was constructed barely 4 years prior to the accident in question. It was not shown that any of the causes denominated as force majeure obtained immediately before or at the time of the collapse of the ceiling. Such defects could have been easily discovered if only Gotesco exercised due diligence and care in keeping and maintaining the premises. But as disclosed by the testimony of Mr. Ong, there was no adequate inspection of the premises before the date of the accident. His answers to the leading questions on inspection disclosed neither the exact dates of said inspection nor the nature and extent of the same. That the structural designs and plans of the building were duly approved by the City Engineer and the building permits and certificate of occupancy were issued DO NOT AT ALL PROVE that there were no defects in the construction, especially as regards the ceiling, considering that no testimony was offered to prove that it was ever inspected at all. IMPLIED WARRANTY has given rise to the rule that: Where a patron of a theater or other place of public amusement is injured, and the thing that caused the injury is wholly and exclusively under the control and management of the defendant, and the accident is such as in the ordinary course of events would not have happened if proper care had been exercised, its occurrence raises a presumption or permits of an inference of negligence on the part of the defendant. That presumption or inference was not overcome by the Gotesco. Even assuming for the sake of argument that, the cause of the collapse was due to force majeure, Gotesco would STILL BE LIABLE because it was guilty of negligence, which the trial court denominated as gross. As gleaned from Bouviers definition of and Cockburns elucidation on force majeure, for one to be exempt from any liability because of it, he must have exercised care, i.e., he should not have been guilty of negligence.

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Atty. Jess Lopez

2. Servando v. Philippine Steam Navigation Co. , 117 SCRA 832 (1982) Facts: Servando & Bico loaded on board Phil. Steam Navigations vessel for carriage several cavans of rice and cartons of colored paper, toys and general merchandise. A bill of lading was issued by PSN which contained a peculiar stipulation: Clause 14. Carrier shall not be responsible for loss or damage to shipments billed 'owner's risk' unless such loss or damage is due to negligence of carrier. Nor shall carrier be responsible for loss or damage caused by force majeure, dangers or accidents of the sea or other waters; war; public enemies; . . . fire. Upon arrival, the cargoes were discharged in good order unto the warehouse of the Bureau of Customs. However, on the same day, the warehouse was razed by a fire, destroying Servandos cargoes. Bico was able to take delivery of a certain portion of his goods. Their claim for the value of said goods were rejected by the PSN. The lower court ruled in favor of Servando & Bico, holding that the delivery of the shipment in question to the warehouse of the Bureau of Customs is not the delivery contemplated by Article 1736 which imposes upon common carriers the duty to observe extraordinary diligence from the moment the goods are unconditionally placed in their possession "until the same are delivered, actually or constructively, by the carrier to the consignee or to the person who has a right to receive them. Moreover, since the burning of the warehouse occurred before actual or constructive delivery of the goods to the Servando & Bico, the loss is chargeable against the PSN. Issue: Whether PSN is liable for the loss. Held: NO. The court upheld the validity of the contractual stipulation. Servandos contention that the same did not bind them since it was printed in fine letters on the back of the bills of lading and was not signed does not persuade. The agreement contained in the above quoted Clause 14 is a mere iteration of the basic principle of law written in Article 1174 of the Civil Code: Except in cases expressly specified by the law, or when it is otherwise declared by stipulation, or when the nature of the obligation requires the assumption of risk, no person shall be responsible for those events which could not be foreseen, or which, though foreseen, were inevitable. Thus, where fortuitous event or force majeure is the immediate and proximate cause of the loss, the obligor is exempt from liability for non-performance. The Partidas, the antecedent of Article 1174 of the Civil Code, defines 'CASO FORTUITO' as 'an event that takes place by accident and could not have been foreseen. Examples of this are destruction of houses, unexpected fire, shipwreck, violence of robbers. There is nothing in the record to show that PSN incurred in delay in the performance of its obligation. It appears that PSN had not only notified Servando of the arrival of their shipment, but had demanded that the same be withdrawn. In fact, pursuant to such demand, Uy Bico had taken delivery of 907 cavans of rice before the burning of the warehouse. Nor can the PSN or its employees be charged with negligence. The storage of the goods in the Customs warehouse pending withdrawal thereof by Servando was undoubtedly made with their knowledge and consent. Since the warehouse belonged to and was maintained by the government, it would be unfair to impute negligence to the appellant, the latter having no control whatsoever over the same. Caso fortuito in the Enciclopedia Juridicada Espanola - In a legal sense and, consequently, also in relation to contracts, a 'caso fortuito' presents the following essential characteristics : (1) the cause of the unforeseen and unexpected occurrence, or of the failure of the debtor to comply with his obligation, must be independent of the human will; (2) it must be impossible to foresee the event which constitutes the 'caso fortuito', or if it can be foreseen, it must be impossible to avoid; (3) the occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a normal manner ; and (4) the obligor must be free from any participation in the aggravation of the injury resulting to the creditor." In the case at bar, the burning of the customs warehouse was an extraordinary event which happened independently of the will of the PSN. The latter could not have foreseen the event. The lower court relied in the ruling of Yu Biao Sontua v. Ossorio wherein in that case, the defendant was held liable for damages arising from a fire caused by the negligence of the defendants employees. Unlike in this case, there is no shred of proof to prove that the fire that broke out was attributable to the negligence of PSNs employees.

3. Edgar Cokaliong Shipping Lines v. UCPB General Insurance Company, G.R. No. 146018, June 25, 2003 116 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

Facts: In Dec. 1991, Nestor Angelia & Zosimo Mercado each delivered to Cokaliong Shipping (CS) cargo (carton of Christmas decors, sacks of plastic toys, assorted goods) to be transported on board the M/V Tandag on its voyage from Cebu to Surigao del Sur. Both were covered by a bill of lading. Also, each were considered as the shipper and consignee of their respective cargo. Said bills of lading were insured by a certain Feiciana Legaspi with the UCPB General Insurance Corp against all risks. While in transit, after the vessel had passed the Mandaue-Mactan bridge, fire ensued in the engine room and, despite earnest efforts of the officers and crew, fire engulfed and destroyed the entire vessel resulting in loss of life as well as the cargo. Thereafter, Legaspi filed a claim under the Marine Risk for the loss of the cargo covered by the bills of lading. UCPB paid the claim. Then, as Legaspis subrogee, UCPB filed a complaint based on torts against CS to collect the amount it paid to the subrogee. UCPB alleged that the loss was due to CS negligence. RTC ruled for UCPB. CA affirmed and said that CS failed to prove that the fire that consumed the vessel was caused by something other than its negligence in the upkeep, maintenance, and operation of the vessel. Hence, this petition. CS argues that the cause of the loss was force majeure and adds that its exercise of due diligence was adequately proven by the findings of the Coast Guard. Issue: Whether the cause of the loss was force majeure. Held: NO. The uncontroverted findings of the Philippine Coast Guard show that the M/V Tandag sank due to a fire, which resulted from a crack in the auxiliary engine fuel oil service tank. Fuel spurted out of the crack and dripped to the heating exhaust manifold, causing the ship to burst into flames. The crack was located on the side of the fuel oil tank, which had a mere 2-inch gap from the engine room walling, thus precluding constant inspection and care by the crew. Having originated from an unchecked crack in the fuel oil service tank, the fire could not have been caused by force majeure. Broadly speaking, force majeure generally applies to a natural accident, such as that caused by a lightning, an earthquake, a tempest or a public enemy. Hence, FIRE IS NOT CONSIDERED A NATURAL DISASTER OR CALAMITY. In Eastern Shipping Lines it was said: This must be so as it arises almost invariably from some act of man or by human means. It does not fall within the category of an act of God unless caused by lighting or by other natural disaster or calamity. It may even be caused by the actual fault or privity of the carrier. Article 1680, which considers fire as an extraordinary fortuitous event refers to leases or rural lands where a reduction of the rent is allowed when more than one-half of the fruits have been lost due to such event, considering that the law adopts a protective policy towards agriculture. As the peril of fire is not comprehended within the exceptions in Article 1734, Article 1735 of the Civil Code provides that in all cases other than those mentioned in Article 1734, the common carrier shall be presumed to have been at fault or to have acted negligently, unless it proves that it has observed the extraordinary diligence required by law. Where loss of cargo results from the failure of the officers of a vessel to inspect their ship frequently so as to discover the existence of cracked parts, that loss cannot be attributed to force majeure, but to the negligence of those officials. The law provides that a common carrier is presumed to have been negligent if it fails to prove that it exercised extraordinary vigilance over the goods it transported. Ensuring the seaworthiness of the vessel is the first step in exercising the required vigilance. CS did not present sufficient evidence showing what measures or acts it had undertaken to ensure the seaworthiness of the vessel. It failed to show when the last inspection and care of the auxiliary engine fuel oil service tank was made, what the normal practice was for its maintenance, or some other evidence to establish that it had exercised extraordinary diligence. It merely stated that constant inspection and care were not possible, and that the last time the vessel was drydocked was in November 1990. Necessarily, in accordance with Article 1735, we hold CS responsible for the loss of the goods covered by Bills of Lading Nos. 58 and 59. G. H. Diligence (see cases under Article 2180) Mistake and Waiver

1. Gatchalian v. Delim, 203 SCRA 126 (1991) Facts: At noon on 11 July 1973, Reynalda Gatchalian boarded, as a paying passenger, Arsenio Delims Thames mini bus. On the way, while the bus was running along the highway in Barrio Payocpoc, Bauang, Union, a snapping sound 117 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

was suddenly heard at one part of the bus and, shortly thereafter, the vehicle bumped a cement flower pot on the side of the road, went off the road, turned turtle and fell into a ditch. Several passengers, including Gatchalian, were injured. They were promptly taken to Bethany Hospital for medical treatment. Upon medical examination, Gatchalian was found to have sustained physical injuries on the leg, arm and forehead etc. While there, Arsenios wife Adela Delim visited and paid for the expenses, hospitalization and transportation fees. However, before she left, she had the injured passengers including the Gatchalian sign an already prepared Joint Affidavit constituting a waiver of any future complaint : That we are no longer interested to file a complaint, criminal or civil against the said driver and owner of the said Thames, because it was an accident and the said driver and owner of the said Thames have gone to the extent of helping us to be treated upon our injuries. However, notwithstanding this document, Gatchalian filed an action Ex Contractu to recover compensatory and Actual Damages. Delim denied liability on the ground that it was an accident and the Joint which constitutes as a waiver. The trial court dismissed the complaint based on the waiver and the CA affirmed. Issue: Whether the waiver was valid. Held: NO. There was no valid waiver of her cause of action had been made by Gatchalian. A waiver, to be valid and effective, must in the first place be couched in clear and unequivocal terms which leave no doubt as to the intention of a person to give up a right or benefit which legally pertains to him. A waiver may not casually be attributed to a person when the terms thereof do not explicitly and clearly evidence an intent to abandon a right vested in such person . The degree of explicitness which this Court has required in purported waivers is illustrated in Yepes and Susaya v. Samar Express Transit , where the Court in reading and rejecting a purported waiver said: It appears that before their transfer to the Leyte Provincial Hospital, appellees were asked to sign as, in fact, they signe d the document Exhibit I wherein they stated that "in consideration of the expenses which said operator has incurred in properly giving us the proper medical treatment, we hereby manifest our desire to waive any and all claims against the operator of the Samar Express Transit. Even a cursory examination of the document mentioned above will readily show that appellees did not actually waive their right to claim damages from appellant for the latter's failure to comply with their contract of carriage. All that said document proves is that they expressed a desire to make the waiver which obviously is not the same as making an actual waiver of their right. A WAIVER of the kind invoked by appellant must be clear and unequivocal (Decision of the Supreme Court of Spain of July 8, 1887) which is not the case of the one relied upon in this appeal. If we apply the standard used in Yepes and Susaya, we would have to conclude that the terms of the Joint Affidavit in the instant case cannot be regarded as a waiver cast in clear and unequivocal terms. Moreover, the circumstances under which the Joint Affidavit was signed by Gatchalian need to be considered. Gatchalian testified that she was still reeling from the effects of the vehicular accident, having been in the hospital for only three days, when the purported waiver in the form of the Joint Affidavit was presented to her for signing; that while reading the same, she experienced dizziness but that, seeing the other passengers who had also suffered injuries sign the document, she too signed without bothering to read the Joint Affidavit in its entirety. Conside ring these circumstances there appears substantial doubt whether Gatchalian understood fully the import of the Joint Affidavit (prepared by or at the instance of private respondent) she signed and whether she actually intended thereby to waive any right of action against private respondent. Finally, because what is involved here is the liability of a common carrier for injuries sustained by passengers in respect of whose safety a common carrier must exercise extraordinary diligence, we must construe any such purported waiver most strictly against the common carrier. For a waiver to be valid and effective, it must not be contrary to law, morals, public policy or good customs. To uphold a supposed waiver of any right to claim damages by an injured passenger, under circumstances like those exhibited in this case, would be to dilute and weaken the standard of extraordinary diligence exacted by the law from common carriers and hence to render that standard unenforceable. We believe such a purported waiver is offensive to public policy. Sub-issue: Was Delim negligent? Yes. 118 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

We have already noted that a duty to exercise extraordinary diligence in protecting the safety of its passengers is imposed upon a common carrier. The standard of extraordinary diligence imposed upon common carriers is considerably more demanding than the standard of ordinary diligence, i.e., the diligence of a good paterfamilias established in respect of the ordinary relations between members of society. Thus, the question which must be addressed is whether or not Delim has successfully proved that he had exercised extraordinary diligence to prevent the mishap involving his mini-bus. The records before the Court are bereft of any evidence showing that Delim had exercised the extraordinary diligence required by law. Curiously, he did not even attempt, during the trial before the court a quo, to prove that he had indeed exercised the requisite extraordinary diligence. Respondent did try to exculpate himself from liability by alleging that the mishap was the result of force majeure. But allegation is not proof and here again, he utterly failed to substantiate his defense of force majeure. To exempt a common carrier from liability for death or physical injuries to passengers upon the ground of force majeure, the carrier must clearly show not only that the efficient cause of the casualty was entirely independent of the human will, but also that it was impossible to avoid. Elements of force majeure: (1) the cause of the unforeseen and unexpected occurence, or of the failure of the debtor to comply with his obligation, must be independent of the human will; (2) it must be impossible to foresee the event which constitutes the "caso fortuito", or if it can be foreseen, it must be impossible to avoid; (3) the occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a normal manner; and (4) the obligor must be free from any participation in the aggravation of the injury resulting to the creditor. Upon the other hand, the record yields affirmative evidence of fault or negligence on the part of Delims common carrier. In her direct examination, Gatchalian narrated that shortly before the vehicle went off the road and into a ditch, a "snapping sound" was suddenly heard at one part of the bus. One of the passengers, an old woman, cried out, What happened? The driver replied, nonchalantly, That is only normal. The driver did not stop to check if anything had gone wrong with the bus. Moreover, the driver's reply necessarily indicated that the same snapping sound had been heard in the bus on previous occasions. This could only mean that the bus had not been checked physically or mechanically to determine what was causing the "snapping sound" which had occurred so frequently that the driver had gotten accustomed to it. Such a sound is obviously alien to a motor vehicle in good operating condition, and even a modicum of concern for life and limb of passengers dictated that the bus be checked and repaired. The obvious continued failure of respondent to look after the roadworthiness and safety of the bus, coupled with the driver's refusal or neglect to stop the mini-bus after he had heard once again the "snapping sound" and the cry of alarm from one of the passengers, constituted wanton disregard of the physical safety of the passengers, and hence gross negligence on the part of Delim and his driver. 2. Theis v. Court of Appeals, 268 SCRA 167 (1997) Facts: TCT Nos. 15515 (parcel no. 1); 15516 (parcel no. 2); 15684 (parcel no. 3). The above lands are situated in Tagaytay. Beside parcel no. 3 is a vacant lot (parcel no. 4). Calsons constructed a 1-storey house on parcel no. 3. Parcel no. 1 and parcel no. 2, remained idle. In a survey conducted in 1985, there were ERRORS IN THE DESIGNATION OF THE LANDS: a) parcel no. 3, (where the two-storey house stands) became TCT No. 15515 (parcel no 1) b) parcel nos. 1 and 2 were mistakenly surveyed to be located on parcel no. 4 (which was not owned by Calsons) and covered by TCT Nos. 15516 and 15684 Unaware of the mistake by which Calsons appeared to be the owner of parcel no. 4 as indicated in the erroneous survey, and based on the erroneous information given by the surveyor that parcel no. 4 is covered by TCT No. 15516 and 15684, Calsons sold said parcel no. 4 to Theis. Upon execution of the Deed of Sale, Calsons delivered TCT Nos. 15516 and 15684 to Theis who immediately registered the same. After returning from Germany, they went to Tagaytay to look over the vacant lots and to plan the construction of their house thereon, they discovered that parcel no. 4 was owned by another person; that the lots actually sold to them were parcel nos. 2 and 3 covered by TCT Nos. 15516 and 15684, respectively. Parcel no. 3 however, could not have been sold by the Calsons as a two-storey house, the construction cost of which far exceeded the price paid by the Calsons, had already been built thereon even prior to the execution of the contract. Theis insisted that they wanted parcel no. 4, which is the idle lot beside parcel no. 3. However, Calsons could not have possibly sold the same to them for it did not own parcel no. 4. The mistake in the identity of the lots is traceable to the erroneous survey conducted in 1985. To remedy the mistake, Calsons offered parcel nos. 1 and 2 covered by TCT Nos. 15515 and 15516 , respectively, as these 2 were precisely the 2 vacant lots which they owned and intended to sell when it entered into the transaction with 119 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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Theis. Theis refused and insisted on taking parcel no. 3, covered by TCT No. 155864 and upon which a 2-storey house stands. Such refusal of Theis prompted Calsons to offer the return of an amount double the price paid by Theis. Latter still refused. Calsons was then compelled to file an action for annulment of deed of sale and reconveyance . Trial court annulled said contract of sale after finding that there was indeed a mistake in the identification of the parcels of land. Trial court, which was affirmed by the CA, held that When one sells or buys a real property, he either sells or buys the property as he sees it, in its actual setting and by its physical metes and bounds, and not be the mere lot number assigned to the same property in the certificate of title or in any document. And, when a buyer of real property decides to purchase from his seller, he is ordinarily bound by prudence to ascertain the true nature, identity or character of the property that he intends to buy and ascertain the title of his vendor before he parts with his money. The foregoing precepts and precautions were observed by the parties. Both brokers of the sale brought defendants to the vicinity where plaintiffs 3 adjacent parcels of land are locate d and pointed to defendants the 2 vacant parcels right beside plaintiffs house. When defendants intimated to the brokers their desire to buy the vacant lots pointed to them, they were brought to plaintiffs representative where the parties discussed the terms of the sale. It is clear that defendants did not intend to buy the parcel of land where plaintiffs house stood as defendant Betty Theis declared in her testimony that they wanted to buy the parcel at the right side of plaintiffs house where she and her husband would construct their house. Neither can this Court accept the hypothesis that plaintiff intended to sell that parcel where its house was already constructed for if this was its true intention, it would not sell its two (2) lots at the price of P486,000.00 which is way below the costs of its construction of P1,500,000.00. Consent of the parties is one of the essential elements to the validity of the contract and where consent is given through mistake, the validity of the contractual relations between the parties is legally impaired. When defendants bought the properties of plaintiff, they intended to buy the vacant lots owned by the latter. As the sale that was finally consummated by the parties had covered the parcel where plaintiffs house wa s constructed even before the sale took place, this Court can safely assume that the deed of sale executed by the parties did not truly express their true intention. The mistake on the subject of the sale appears to be substantial as the OBJECT of the transaction is DIFFERENT from that intended by the parties. This fiasco could have been cured and the pain and travails of this litigation avoided, had parties agreed to a reformation of the deed of sale. The defendants refused, insisting that they wanted the vacant lots on the right side of plaintiffs house, which was impossible for plaintiff 3 to do, as said vacant lots were not of its own dominion. Issue: Whether Calsons is liable. Held: NO. According to Art. 1390, contracts are voidable/annullable, even though no damage was done to the contracting parties where consent is vitiated by mistake, violence, intimidation, undue influence, or fraud. Also, according to Art. 1331, in order that mistake may invalidate consent, it should refer to the substance of the thing which is the object of the contract, or to those conditions which have principally moved one or both parties to enter into the contract . Tolentino explains that the concept of error must include both ignorance, which is the absence of knowledge with respect to a thing, and mistake properly speaking, which is a (1) wrong conception about said thing, or (2) a belief in the existence of some circumstances, fact, or event, which in reality does not exist. In both cases, there is a lack of full and correct knowledge about the thing. The mistake committed by Calsons in selling parcel no. 4 to the Theis falls within the second type. Such mistake invalidated its consent and as such, annulment of the deed of sale is proper. Calsons obviously committed an honest mistake in selling parcel no. 4. It is quite impossible for them to sell the lot since he does not own it. The GOOD FAITH of the Calsons is evident in the fact that when the mistake was discovered, it immediately offered 2 other vacant lots to the Theis or to reimburse them with twice the amount paid. That Theis refused either option left the Calsons with no other choice but to file an action for the annulment of the deed of sale on the ground of mistake.

Theis cannot be justified in their insistence that parcel no. 3, upon which Theis constructed a two-storey house, be given to them. The cost of construction for the said house P1.5m far exceeds the amount paid by the petitioners (P486,000.00). Calsons witness, Atty. Tarciso Calilung clarified that parcel no. 4, the lot mistakenly sold, was a vacant lot. To allow the Theis to take parcel no. 3 would be to countenance unjust enrichment. They intended at the outset to purchase a vacant lot, their refusal to accept the offer of the Calsons to give them two (2) other vacant lots in exchange, as well as their insistence on parcel no. 3, which is a house and lot, is manifestly unreasonable. I. 120 Emergency Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

1. Gan v. Court of Appeals, G.R. No. L-44264, September 19, 1988 Facts: At about 8:00 AM, the Hedy Gan was driving a Toyota car. There were 2 vehicles, a truck, and a jeepney parked on one side of the road, one following the other about 2 to 3 meters from each other. As the car driven by the accused approached the place where the 2 vehicles were parked, there was a vehicle coming from the opposite direction, followed by another, which tried to overtake and bypass the one in front of it and thereby encroached the lane of the car driven by the Gan. To avoid a head-on collision with the oncoming vehicle, the Gan swerved to the right and as a consequence, the front bumper of the Toyota Crown Sedan hit an old man who was about to cross the boulevard from south to north, pinning him against the rear of the parked jeepney. The force of the impact caused the parked jeepney to move forward hitting the rear of the parked truck ahead of it. The pedestrian was injured, the Toyota Sedan was damaged on its front, the jeep suffered damages on its rear and front parts, and the truck sustained scratches at the wooden portion of its rear. The body of the old man who was later identified as Isidoro Casino was immediately brought to the Jose Reyes Memorial Hospital but was (pronounced) dead on arrival. An information for Homicide thru Reckless Imprudence was filed against Gab. The trial court rendered judgment finding her guilty beyond reasonable doubt of the offense charged. She appealed to the CA, which modified the conviction to homicide thru SIMPLE imprudence. Issue: Whether or not Gan is criminally liable. Held: NO. A corollary rule (to the test of negligence WWPD) is what is known in the law as the EMERGENCY RULE One who suddenly finds himself in a place of danger, and is required to act without time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence, if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence. The CA in finding the Gan guilty said: The accused should have stepped on the brakes when she saw the car going in the opposite direction followed by another which overtook the first by passing towards its left. She should not only have swerved the car she was driving to the right but should have also tried to stop or lessen her speed so that she would not bump into the pedestrian who was crossing at the time but also the jeepney which was then parked along the street. The course of action suggested by the CA would seem reasonable were it not for the fact that such suggestion did not take into account the amount of time afforded Gan to react to the situation she was in. The suggested course of action presupposes sufficient time for Gan to analyze the situation confronting her and to ponder on which of the different courses of action would result in the least possible harm to herself and to others. Due to the lack of eyewitnesses, no evidence was presented by the prosecution with respect to the relative distances of Gan to the parked jeepney and the oncoming overtaking vehicle that would tend to prove that she did have sufficient time to reflect on the consequences of her instant decision to swerve her car to the right without stepping on her brakes. In fact, the evidence presented by the prosecution on this point is her statement to the police. Under the circumstances narrated, we find that the CA is asking too much from a mere mortal like the petitioner who in the blink of an eye had to exercise her best judgment to extricate herself from a difficult and dangerous situation caused by the driver of the overtaking vehicle. Gan certainly could not be expected to act with all the coolness of a person under normal conditions. The danger confronting her was real and imminent, threatening her very existence. She had no opportunity for rational thinking but only enough time to heed the very powerful instinct of self-preservation. Moreover, she was driving her car within the legal limits. The EMERGENCY RULE enunciated above applies with full force to the case at bar and consequently absolve Gan from any criminal negligence in connection with the incident under consideration. We set aside the award of damages to the heirs of the victim, who by executing a release of the claim due them, had effectively and clearly waived their right thereto. 2. McKee v. Intermediate Appellate Court, 211 SCRA 517 (1992) supra Doctrine: Jose Koh's entry into the lane of the truck was necessary in order to avoid what was, in his mind at that time, a greater peril death or injury to the 2 boys. Such act can hardly be classified as negligent. Considering the sudden intrusion of the 2 boys into the lane of the car, We find that Jose Koh adopted the best means possible in the given situation to avoid hitting them. Using the test of negligence (WWPMD) , it is clear that he was not guilty of negligence. In any case, assuming arguendo that Jose Koh is negligent, it cannot be said that his negligence was the proximate cause of the collision.

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Atty. Jess Lopez

The entry of the car into the lane of the truck would not have resulted in the collision had the latter heeded the EMERGENCY SIGNALS given by the former to slow down and give the car an opportunity to go back into its proper lane. Instead of slowing down and swerving to the far right of the road, which was the proper precautionary measure under the given circumstances, the truck driver continued at full speed towards the car. The truck driver's negligence becomes more apparent in view of the fact that the road is 7.50 meters wide while the car measures 1.598 meters and the truck, 2.286 meters, in width. This would mean that both car and truck could pass side by side with a clearance of 3.661 meters to spare. Furthermore, the bridge has a level sidewalk which could have partially accommodated the truck. Any reasonable man finding himself in the given situation would have tried to avoid the car instead of meeting it head-on. The truck driver's negligence is apparent in the records. He himself said that his truck was running at 48 kph along the bridge while the maximum speed allowed by law on a bridge is only 30 kph. Under Article 2185 of the Civil Code, a person driving a vehicle is presumed negligent if at the time of the mishap, he was violating any traffic regulation. Even if Jose Koh was indeed negligent, the doctrine of last clear chance finds application here. Last clear chance is a doctrine in the law of torts which states that the contributory negligence of the party injured will not defeat the claim for damages if it is shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the negligence of the injured party. In such cases, the person who had the last clear chance to avoid the mishap is considered in law solely responsible for the consequences thereof. It was the truck driver's negligence in failing to exert ordinary care to avoid the collision which was, in law, the proximat e cause of the collision. As employers of the truck driver, the private respondents are, under Article 2180 of the Civil Code, directly and primarily liable for the resulting damages . 3. Valenzuela v. Court of Appeals, G.R. Nos. 115024 & 117944, February 7, 1996 Facts: According to the PLAINTIFF, At 2 AM, Ma. Lourdes Valenzuela was driving a blue Mitsubishi Lancer travelling along Aurora Blvd. with Cecilia Ramon heading towards the direction of Manila when she noticed something wrong with her tires. She stopped at a lighted place where there were people, to verify whether she had a flat tire and to solicit help if needed. Having been told by the people present that her rear right tire was flat, she parked along the sidewalk, about 1-1/2 feet away, put on her emergency lights, alighted from the car, and went to the rear to open the trunk. She was standing at the left side of the rear of her car pointing to the tools to a man who will help her fix the tire when she was suddenly bumped by a 1987 Mitsubishi Lancer driven by Richard Li and registered in the name of respondent Alexander Commercial, Inc. Valenzuela was thrown against the windshield of the car of ACI, which was destroyed, and then fell to the ground. She was pulled out from under ACIs car. Plaintiffs left leg was severed up to the middle of her thigh, with only some skin and muscle connected to the rest of the body. She was confined in the hospital for 20 days and was eventually fitted with an artificial leg. According the RESPONDENT, Richard Li denied that he was negligent. He was on his way home, travelling at 55 kph. Considering that it was raining, visibility was affected and the road was wet. Traffic was light. He testified that he was driving along the inner portion of the right lane of Aurora Blvd. towards the direction of Araneta Avenue, when he was suddenly confronted with a car coming from the opposite direction, travelling at 80 kph, with full bright lights. Temporarily blinded, he instinctively swerved to the right to avoid colliding with the oncoming vehicle, and bumped Valenzeulas car, which he did not see because it was midnight blue in color, with no parking lights or early warning device, and the area was poorly lighted. He alleged in his defense that the left rear portion of Valenzuelas car was protruding as it was then at a standstill diagonally on the outer portion of the r ight lane towards Araneta Avenue. Li confirmed the testimony of Valenzuelas witness that after being bumped the car of the Valenzuela swerved to the right and hit another car parked on the sidewalk. Li counterclaimed for damages, alleging that Valenzuela was reckless or negligent, as she was not a licensed driver. Trial court found Li guilty of gross negligence and liable for damages under Article 2176. The trial court likewise held ACI., Lis employer, jointly and severally liable for damages pursuant to Article 2180. MR denied. On appeal, CA affirmed and found that there was ample basis from the evidence of record for the trial courts finding that the Valenzuelas car was properly parked at the right, beside the sidewalk when it was bumped by defendants car, and dismissed defendants argument. CA however, absolved ACI from any liability towards Lourdes Valenzuela. Issue: Whether Valenzuala was contributorily negligent. Held: NO. 122 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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Atty. Jess Lopez

LIS LIABILITY: Valenzuelas version of the incident was fully cor roborated by an uninterested witness, Rogelio Rodriguez, the owner-operator of a beerhouse (Lambingan sa Kambingan) located just across the scene of the accident. Rodriguez further added that he was standing in front of his establishment, when he saw the car hit Valenzuela, hurtling her against the windshield of the defendants Mitsubishi Lancer, from where she eventually fell under the defendants car. Spontaneously reacting to the incident, he crossed the street, noting that a man reeking with the smell of liquor had alighted from the offending vehicle in order to survey the incident. Equally important, Rodriguez declared that he observed Valenzuelas car parked paralle l and very near the sidewalk, contrary to Lis allegation that Valenzuelas car was close to the center of the right lane. Given a light rainfall, the visibility of the street, and the road conditions on a principal metropolitan throroughfare like Aurora Boulevard, Li would have had ample time to react to the changing conditions of the road if he were alertas every driver should beto those conditions. Driving exacts a more than usual toll on the senses. Physiological fight or flight mechanisms are at work, provided such mechanisms were not dulled by drugs, alcohol, exhaustion, drowsiness , etc. Lis failure to react in a manner which would have avoided the accident could therefore have been only due to either or both of the two factors : 1) that he was driving at a very fast speed as testified by Rodriguez; and 2) that he was under the influence of alcohol. It was not even necessary for him to swerve a little to the right in order to safely avoid a collision with the oncoming car considering that Aurora Blvd. is a double lane avenue separated at the center by a dotted white paint , and there is plenty of space for both cars, since her car was running at the right lane going towards Manila and the on-coming car was also on its right lane going to Cubao. ON VALENZUELAS LACK OF CONTRIBUTORY NEGLIGENCE: Valenzuela was not guilty of contributory negligence. Contributory negligence is conduct on the part of the injured party, contributing as a legal cause to the harm he has suffered, which falls below the standard to which he is required to conform for his own protection. Courts have traditionally been compelled to recognize that an actor who is confronted with an emergency is not to be held up to the standard of conduct normally applied to an individual who is in no such situation. The law takes stock of impulses of humanity when placed in threatening or dangerous situations and does not require the same standard of thoughtful and reflective care from persons confronted by unusual and oftentimes threatening conditions. Under the EMERGENCY RULE adopted by this Court in Gan, an individual who suddenly finds himself in a situation of danger and is required to act without much time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence if he fails to undertake what subsequently and upon reflection may appear to be a better solution, unless the emergency was brought by his own negligence. While the emergency rule applies to those cases in which reflective thought, or the opportunity to adequately weigh a threatening situation is absent, the conduct which is required of an individual in such cases is dictated not exclusively by the suddenness of the event which absolutely negates thoroughful care, but by the OVER-ALL NATURE OF THE CIRCUMSTANCES. A woman driving a vehicle suddenly crippled by a flat tire on a rainy night will not be faulted for stopping at a point which is both convenient for her to do so and which is not a hazard to other motorists. She is not expected to run the entire boulevard in search for a parking zone or turn on a dark street or alley where she would likely find no one to help her. It would be hazardous for her not to stop and assess the emergency (simply because the entire length of Aurora Boulevard is a no-parking zone) because the hobbling vehicle would be both a threat to her safety and to other motorists. To avoid putting herself and other motorists in danger, she did what was best under the situation. As narrated by CA: She stopped at a lighted place where there were people, to verify whether she had a flat tire and to solicit help if needed. Having been told by the people present that her rear right tire was flat and that she cannot reach her home she parked along the sidewalk, about 1 1/2 feet away, behind a Toyota Corona Car. In fact, CA noted, Pfc. Felix Ramos, the investigator on the scene of the accident confirmed that Valenzuelas car was parked very close to the sidewalk. The sketch showed Valenzuelas car partly straddling the sidewalk, clear and at a convenient distance from motorists passing the right lane of Aurora Boulevard. Under the circumstances described, Valenzuela did exercise the standard reasonably dictated by the emergency and could not be considered to have contributed to the unfortunate circumstances which eventually led to the amputation of one of her lower extremeties. The emergency which led her to park her car on a sidewalk in Aurora Boulevard was not of her own making, and it was evident that she had taken all reasonable precautions. ACIS LIABILITY: When a company gives full use and enjoyment of a company car to its employee, it in effect guarantees that it is, like every good father, satisfied that its employee will use the privilege reasonably and responsively. For large companies , the privilege serves important business purposes either related to the image of success an entity 123 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

intends to present to its clients and to the public in general, or for practical and utilitarian reasons to enable its managerial and other employees of rank or its sales agents to reach clients conveniently. In most cases, providing a company car serves both purposes. Since important business transactions and decisions may occur at all hours in all sorts of situations and under all kinds of guises, the provision for the unlimited use of a company car therefore principally serves the business and goodwill of a company and only incidentally the private purposes of the individual who actually uses the car , the managerial employee or company sales agent. As such, in providing for a company car for business use and/or for the purpose of furthering the companys image, a company owes a responsibility to the public to see to it that the managerial or other employees to whom it entrusts virtually unlimited use of a company issued car are able to use the company issue capably and responsibly. Here, Li was an Assistant Manager of ACI. In his testimony, he admitted that his functions as Assistant Manager did not require him to scrupulously keep normal office hours as he was required quite often to perform work outside the office, visiting prospective buyers and contacting and meeting with company clients. These meetings, clearly, were not strictly confined to routine hours because, as a managerial employee tasked with the job of representing his company with its clients, meetings with clients were both social as well as work-related functions. The service car assigned to Li by ACI therefore enabled both Li as well as the ACIto put up the front of a highly successful entity, increasing the latters goodwill before its clientele. It also facilitated meeting between Li and its clients by providing the former with a convenient mode of travel. In fine, ACI has not demonstrated, to our satisfaction, that it exercised the care and diligence of a good father of the family in entrusting its company car to Li. No allegations were made as to whether or not the company took the steps necessary to determine or ascertain the driving proficiency and history of Li, to whom it gave full and unlimited use of a company car. Not having been able to overcome the burden of demonstrating that it should be absolved of liability for entrusting its company car to Li, said company, based on the principle of bonus pater familias, ought to be jointly and severally liable with the former for the injuries sustained by Valenzuela during the accident. 4. Delsan Transport Lines, Inc., v. C&A Construction, Inc., G.R. No. 156034, October 1, 2003 Facts: C & A Construction, Inc. was engaged by NHA to construct a deflector wall at the Vitas Reclamation Area in Vitas, Tondo. At around 12 MN of October 20, 1994, Captain Demetrio T. Jusep of M/V Delsan Express (owned and operated by DLTI) received a report from his radio head operator in Japan that a typhoon was going to hit Manila in about 8) hours . Capt. Jusep tried to seek shelter at the North Harbor but could not enter the area because it was already congested. He decided to drop anchor at the vicinity of Vitas mouth, 4 miles away from a Napocor power barge. Capt. Jusep ordered his crew to go full ahead to counter the wind which was dragging the ship towards the Napocor power barge. To avoid collision, Capt. Jusep ordered a full stop of the vessel. He succeeded in avoiding the power barge, but when the engine was re-started and the ship was maneuvered full astern, it hit the deflector wall constructed by C&A. The latter demanded payment of the damage from DLTI but the latter refused to pay. C&A filed a complaint for damages. DLTI claimed that the damage was caused by a fortuitous event. Complaint filed by C&A was dismissed. The trial court ruled that DLTI was not guilty of negligence because it had taken all the necessary precautions to avoid the accident . Applying the emergency rule, it absolved DLTI of liability because the latter had no opportunity to adequately weigh the best solution to a threatening situation. CA reversed. DLTI filed the instant petition contending that Capt. Jusep was not negligent in waiting until 8:35AM of October 21, 1994 before transferring the vessel to the North Harbor inasmuch as it was not shown that had the transfer been made earlier, the vessel could have sought shelter. DLTI claimed that it cannot be held vicariously liable under Article 2180 of because C&A failed to allege in the complaint that DLTI was negligent in the selection and supervision of its employees and in fact, the company exercised due diligence in the selection of Capt. Jusep who is a duly licensed and competent Master Mariner. Issue: (1) Whether Capt. Jusep was negligent. (2) Whether DLTI is solidarily liable under 2180 Held: (1) YES. As early as 12:00 MN of October 20, 1994, he received a report from his radio head operator in Japan that a typhoon was going to hit Manila after 8 hours but he did nothing until 8:35 AM of October 21, 1994, when he decided to seek shelter at the North Harbor, which unfortunately was already congested. The finding of negligence cannot be rebutted upon proof that the ship could not have sought refuge at the North Harbor even if the transfer was done earlier. It is not the speculative success or failure of a decision that determines the existence of negligence in the present case, but the failure to take immediate and appropriate action under the circumstances. 124 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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Atty. Jess Lopez

Despite knowledge that the typhoon was to hit Manila in 8 hours , he complacently waited for the lapse of more than 8 hours thinking that the typhoon might change direction. He cannot claim that he waited for the sun to rise instead of moving the vessel at midnight immediately after receiving the report because of the difficulty of traveling at night. The hour of 8:35 a.m. is way past sunrise. Furthermore, he did not transfer as soon as the sun rose because, according to him, it was not very cloudy and there was no weather disturbance yet. When he ignored the weather report notwithstanding reasonable foresight of harm, Capt. Jusep showed an inexcusable lack of care and caution which an ordinary prudent person would have observed in the same situatio n. Had he moved the vessel earlier, he could have had greater chances of finding a space at the North Harbor considering that the Navotas Port where they docked was very near North Harbor. The RTC erred in applying the emergency rule. Under this rule, one who suddenly finds himself in a place of danger, and is required to act without time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence, if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the danger in which he finds himself is brought about by his own negligence. Such emergency rule is not applicable to the instant case because the danger where Capt. Jusep found himself was caused by his own negligence. (2) YES. Whenever an employees negligence causes damage or injury to another, there instantly arises a presumption juris tantum that the employer failed to exercise diligentissimi patris families in the selection (culpa in eligiendo) or supervision (culpa in vigilando) of its employees. To avoid liability for a quasi-delict committed by his employee, an employer must overcome the presumption by presenting convincing proof that he exercised the care and diligence of a good father of a family in the selection and supervision of his employee. It is not enough that the employees chosen be competent and qualified, inasmuch as the employer is still required to exercise due diligence in supervising its employees. DLTI presented no evidence that it formulated rules/guidelines for the proper performance of functions of its employees and that it strictly implemented and monitored compliance therewith. It cannot disclaim liability on the basis of C&As failure to allege in its complaint that the former did not exercise due diligence in the selection and supervision of its employees. In Viron Transportation Co., Inc, it was held that it is not necessary to state that petitioner was negligent in the supervision or selection of its employees, inasmuch as its negligence is presumed by operation of law. Allegations of negligence against the employee and that of an employer-employee relation in the complaint are enough to make out a case of quasidelict under Article 2180 of the Civil Code. 5. Orix Metro Leasing and Finance Corporation v. Mangalinao, G.R. Nos. 174089 & 174266, January 25, 2012 Facts: In 1990, while it was raining at night, 3 vehicles were traversing the 2-lane northbound NLEX. Edurese was driving a Nissan Pathfinder with other passengers (including the Mangalinao spouses). Before them on the outer lane was a Fuso 10-wheeler truck driven by Loreto (accompanied by truck helper Charlie). The Fuso was moving in an erratic and swerving motion. Behind the Pathfinder was another 10-wheeler Isuzu truck driven by Antonio (accompanied by Rodolfo). Just when the Pathfinder was about to overtake the Fuso, the Fuso suddenly swerved to the left and cut into the Pathfinders lane. The Pathfinder hit the Fusos left door and body which caused both vehicles to stop in the expressway. What immediately followed was a pileup wherein the Isuzu 10-wheeler truck crashed into the rear of the Pathfinder, despite Antonio stepping on the brakes. All the passengers in the Pathfinder were killed. The truck drivers escaped serious injuries and death. The minor orphaned heirs of the Mangalinao spouses demanded compensation from the truck owners (Sonny and Orix) which was ignored. They filed a claim based on quasi-delict against the truck drivers and the owners, imputing recklessness, negligence, and imprudence on the truck drivers for the deaths of their sister and parents; while alleging that Sonny and Orix equally liable for failing to exercise the diligence of a good father of a family in the selection and supervision of their respective drivers. Sonny and Antonio countered, attributing fault for the accident solely on Loretos reckless driving of his truck which suddenly stopped and slid across the highway. They claimed that Sonny had exercised the expected diligence required of an employer; that Antonio had been all along driving with care; and, that with the abrupt and unexpected collision of the vehicles before him and their precarious proximity, he had no way of preventing his truck from hitting the Pathfinder. The RTC and the CA ruled in favor of the Mangalinao spouses, holding that both truck drivers are at fault and should be held liable. Lucilo, who was driving the Fuso truck, was reckless when he caused the swerving of his vehicle directly on the lane of the Pathfinder to his left. The Pathfinder had no way to avoid a collision because it was about to pass the truck when suddenly blocked. On the other hand, the Isuzu truck was practically tailgating the Pathfinder on the dark slippery highway such that when the Pathfinder collided with the Fuso truck, it became inevitable for the Isuzu truck to crash into the Pathfinder. So, de los Santos, the driver of the Isuzu truck was likewise reckless. 125 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013 Issue: Whether Sonny, Antonio , and Orix are liable.

Atty. Jess Lopez

Held: YES. With regard to the FUSO TRUCK, there is no doubt that the driver was negligent. Testimonies stated that the Fuso had lost control, skidded to the left and blocked the way of the Pathfinder , which was about to overtake. The Pathfinder had absolutely no chance to avoid the truck. Instead of slowing down and moving towards the shoulder in the highway if it really needed to stop, it was very negligent of Loreto to abruptly hit the brake in a major highway wherein vehicles are highly likely to be at his rear. He opened himself up to a major danger and naturally, a collision was imminent. Meanwhile, on the part of the ISUZU TRUCK, the court also found fault on their part. Based on the testimony given by Antonio, the court made the conclusion that, indeed, Antonio was also guilty of the mishap that occurred. Antonio, upon noticing the irregular way of driving of the Fuso truck, slowed down his speed to about 50-60 km/h. However the smashed front of the Isuzu strongly indicates the strong impact of the ramming of the rear of the Pathfinder that pinned its passengers. Furthermore, Antonio admitted that despite stepping on the brakes, the Isuzu still suddenly smashed into the rear of the Pathfinder causing extensive damage to it, as well as hitting the right side of the Fuso. These militate against Antonios claim that he was driving at a safe speed, that he had slowed down, and that he was 3 cars away. Clearly, the Isuzu was not within the safe stopping distance to avoid the Pathfinder in case of emergency. Thus, the Emergency Rule invoked WILL NOT APPLY. Such principle states: [O]ne who suddenly finds himself in a place of danger, and is required to act without time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence, if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence. Considering the wet and slippery condition of the road that night, Antonio should have been prudent to reduce his speed and increase his distance from the Pathfinder. Had he done so, it would be improbable for him to have hit the vehicle in front of him or if he really could not avoid hitting it, prevent such extensive wreck to the vehicle in front. With the glaring evidence, he obviously failed to exercise proper care in his driving. Orix cannot also escape liability since he is the operator of the Fuso truck. Orix cannot point fingers at the alleged real owner to exculpate itself from vicarious liability under Article 2180. Regardless of whoever Orix claims to be the actual owner of the Fuso by reason of a contract of sale, it is nevertheless primarily liable for the damages or injury the truck registered under it have caused. It has already been explained that where a registered owner allowed to evade responsibility by proving who the supposed transferee or owner is, it would be easy for him, by collusion with others or otherwise, to escape said responsibility and transfer the same to an indefinite person, or to one who possesses no property with which to respond financially for the damage or injury done. A victim of recklessness on the public highways is usually without means to discover or identify the person actually causing the injury or damage. He has no means other than by a recourse to the registration in the Motor Vehicles Office to determine who is the owner. The protection that the law aims to extend to him would become illusory were the registered owner given the opportunity to escape liability by disproving his ownership. Besides, the registered owners have a right to be indemnified by the real or actual owner of the amount that they may be required to pay as damage for the injury caused to the plaintiff, which Orix rightfully acknowledged by filing a third-party complaint against the owner of the Fuso, Manuel. J. Damnum absque injuria

1. Board of Liquidators v. Kalaw, G.R. No. L-18805, August 14, 1967 Facts: National Coconut Corporation (NACOCO) was a chartered as a non-profit governmental organization, in charge of all transactions involving coconut and its by-products. Maximo Kalaw sat as its General Manager and board chairman. Because of 4 typhoons that hit the country, NACOCO was unable to fulfill its obligations under the numerous contracts it entered into with several buyers. Coconut trees throughout the country suffered extensive damage. Copra production decreased. Prices spiralled. Warehouses were destroyed. Cash requirements doubled. Deprivation of export facilities increased the time necessary to accumulate shiploads of copra. Quick turnovers became impossible, financing a problem. A meeting was then held. Kalaw made a full disclosure of the situation, apprised the board of the impending heavy losses. No action was taken on the contracts. Neither did the board vote thereon at the meeting of January 7, 1948 following. Then, on January 11, 1948, President Roxas made a statement that the NACOCO head did his best to avert the losses, emphasized that government concerns faced the same risks that confronted private companies, that NACOCO was recouping its losses, and that Kalaw was to remain in his post. Not long thereafter, that is, on January 30, 1948, the board met again with Kalaw, Bocar, Garcia and Moll in attendance. They unanimously approved 6 contracts but were only partially performed. 126 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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The aggrieved buyers who were parties to the said contracts threatened to bring damage suits but most of these were settled except for one who actually pushed through with the suit (Louis Dreyfus ltd.). Subsequently, NACOCO was abolished by EO 372, giving the Board of Liquidators the function of settling and closing its affairs. All the settlements sum up to P1.3M. It is this sum that NACOCO, through the Board of Liquidators, now seeks to recover from GM Kalaw and the other 2 directors, charging the latter with negligence and bad faith/breach of trust for having approved entered into the aforementioned unprofitable contracts. It is alleged that while the by-laws required prior approval of the board, Kalaw entered into the contracts alone as general manager and without the boards prior approval. Sometime after, Kalaw died and the suit was brought against his estate. Issue: Whether Kalaw and the rest of the Board were guilty negligence and bad faith and/or breach of trust for having entered into the unprofitable contracts. Held: NO. Bad faith does not simply connote bad judgment or negligence; it imports a dishonest purpose or some moral obliquity and conscious doing of wrong; it means breach of a known duty thru some motive or interest or ill will; it partakes of the nature of fraud. Applying this precept to the given facts herein, we find that there was no "dishonest purpose," or "some moral obliquity," or "conscious doing of wrong," or "breach of a known duty," or "some motive or interest or ill will" that "partakes of the nature of fraud. To what then may we trace the damage suffered by NACOCO. The facts yield the answer. Four typhoons wreaked havoc then on our copra-producing regions. Result: Copra production was impaired, prices spiralled, warehouses destroyed. Quick turnovers could not be expected. NACOCO was not alone in this misfortune. The record discloses that private traders, old, experienced, with bigger f acilities, were not spared; also suff ered tremendous losses. The typhoons were known to BOL, In fact, NACOCO resisted the suits filed by Louis Dreyfus & Co. by pleading in its answers force majeure as an affirmative defense, and there vehemently asserted that as a result of the said typhoons, extensive damage was caused to the coconut trees in the copra producing regions of the Philippines and according to estimates of competent authorities, it will take about one year until the coconut producing regions will be able to produce their normal coconut yield and it will take some time until the price of copra will reach normal levels;" and that "it had never been the intention of the contracting parties in entering into the contract in question that, in the event of a sharp rise in the price of copra in the Philippine market produce by force majeure or by causes beyond defendant's control, the defendant should buy the copra contracted for at exorbitant prices far beyond the buying price of the plaintiff under the contract." Indeed, were it not for the typhoons, NACOCO could have, with ease, met its contractual obligations. Stock accessibility was no problem. NACOCO had 90 buying agencies spread throughout the islands. It could purchase 2,000 tons of copra a day, The various contracts involved delivery of but 16,500 tons over a five-month period. Despite the typhoons, NACOCO was still able to deliver a little short of 50% of the tonnage required under the contracts. Kalaw's acts were not the result of haphazard decisions either. Kalaw invariably consulted with NACOCO's Chief Buyer, Sisenando Barretto, or the Assistant General Manager. The dailies and quotations from abroad were guideposts to him. Of course, Kalaw could not have been an insurer of prof its. He could not be expected to predict the coming of unpredictable typhoons. And even as typhoons supervened, Kalaw was not remissed in his duty. As the trial court correctly observed, this is a case of damnum absque injuria. Conjunction of damage and wrong is here absent. There cannot be an actionable wrong if either one or the other is wanting . That Kalaw cannot be tagged with crassa negligentia or as much as simple negligence, would seem to be supported by the fact that even as the contracts were being questioned in Congress and in the NACOCO board itself, President Roxas defended the actuations of Kalaw. On December 27, 1947, President Roxas expressed his desire "that the Board of Directors should reelect Hon. Maximo M. Kalaw as General Manager of the National Coconut Corporation. And, on January 7, 1948, at a time when the contracts had already been openly disputed, the board, at its regular meeting, appointed Maximo M. Kalaw as acting general manager of the corporation. 2. Farolan v. Solmac Marketing Corporation, G.R. No. 83589, March 13, 1991 Facts: Solmac Marketing Corporation was the assignee, transferee, and owner of an importation of Clojus Recycling Plastic Products of what is technically known as polypropylene film. This shipment arrived in December 1981. Acting Customs Commissioner Farolan and Parayno (acting chief of Customs Intelligence) did not release the shipment. BOC claims that the products are of higher class considered as polypropylene film which is restricted by LOI. Thus, Parayno first wrote the BOI asking for the latter's advice on whether or not the subject importation may be released. A series of exchange of correspondence between the BOI and the Bureau of Customs ensued. 127 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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Bureau of Investments had a different view; BOI said that the goods should be released without the drilling of holes. Farolan then wrote the BOI requesting for definite guidelines regarding the disposition of importations of Oriented Polypropylene (OPP) and Polypropylene (PP) then being held at the BOC. The BOI Chairman replied on Feb 1984. (In short, the shipment was held by the BOC for more than 2 years). Solmac sued Farolan and Parayno (in their official capacities) for Mandamus and damages, claiming that Parayno and Farolan acted with bad faith in not releasing the shipment. The RTC granted the petition. But even before that time, Farolan and Parayno had already released the said shipment without drilling of holes so they found no reason to appeal the decision. However, Solmac appealed since no damages were awarded. CA granted the claim of Solmac for damages. (take note here that the CA made a mistake, as it called Ramon Farolan by a different name, Damian Farolan. This is irrelevant but just in case Sir asks). Issue: Whether Farolan acted in good faith in not immediately releasing the questioned importation. In other words, can they be held liable in their personal and private capacities for damages suffered by Solmac. Held: NO. They acted in good faith. Such is always presumed and it is upon him who alleges the contrary that the burden of proof lays. Bad faith was not substantiated; in fact, evidence shows that there was indeed confusion with what course of action to take on the said shipment, negating Solmacs claim of bad faith. In Abando v. Lozada, we defined good faith as refering to a state of the mind which is manifested by the acts of the individual concerned. It consists of the honest intention to abstain from taking an unconscionable and unscrupulous advantage of another. It is the opposite of fraud, and its absence should be established by convincing evidence. Bad faith was not proven. FIRST, there was the report of the National Institute of Science and Technology (NIST) that the subject importation was not OPP film scraps but oriented polypropylene, whose importation to the Philippines was restricted under LOI 658-B. It was on the strength of this finding that the Farolan withheld the release of the subject importation for being contrary to law. SECOND, the Farolan testified that, on many occasions, the BOC sought the advice of the BOI on whether the subject importation might be released. THIRD, Parayno also testified during the trial that up to that time (of the trial) there was no clear-cut policy on the part of the BOI regarding the entry into the Philippines of oriented polypropylene (OPP), as the letters of BOI Governors ordering the release of the subject importation did not clarify the BOI policy on the matter. Also, based on the testimonies of the witnesses, it can be gathered that even the highest officers of the BOI themselves (chairman, vice chairman, etc) were not in agreement as to what proper course to take on the subject of the various importations withheld by the BOC. The conflicting recommendations of the BOI on this score prompted the Farolan to seek final clarification from the former with regard to its policy on these importations. This resulted in the inevitable delay in the release of the Clojus shipment, one of the several of such importations. The confusion over the disposition of this particular importation obviates bad faith. Thus the RTCs finding that the Farolan acted in good faith in not immediately releasing the Clojus shipment pending a definitive policy of the BOI on this matter is correct. It is supported by substantial evidence on record, independent of the presumption of good faith, which as stated earlier, was not successfully rebutted. DAMNUM ABSQUE INJURIA: mistakes committed by public officers are not actionable absent any clear showing of malice or gross negligence amounting to bad faith.When a public officer takes his oath of office, he binds himself to perform the duties of his office faithfully and to use reasonable skill and diligence, and to act primarily for the benefit of the public. Thus, in the discharge of his duties, he is to use that prudence, caution, and attention which careful men use in the management of their affairs. In this case, prudence dictated that Farolan first obtain from the BOI the latter's definite guidelines regarding the disposition of the various importations. As public officers, the they had the duty to see to it that the law they were tasked to implement, i.e., LOI 658-B, was faithfully complied with. But even granting that the Farolan committed a mistake in withholding the release of the subject importation because indeed it was composed of OPP film scraps, contrary to the evidence submitted by the NIST that the same was pure oriented OPP, nonetheless, it is the duty of the Court to see to it that public officers are not hampered in the performance of their duties or in making decisions for fear of personal liability for damages due to honest mistake. Whatever damage they may have caused as a result of such an erroneous interpretation, if any at all, is in the nature of a damnum absque injuria. Mistakes concededly committed by public officers are not actionable absent any clear showing that they were motivated by malice or gross negligence amounting to bad faith. After all, even under the law of public officers, the acts of the Farolan are protected by the presumption of good faith.

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In the same vein, the presumption, disputable though it may be, that an official duty has been regularly performed applies in favor of the Farolan. Omnia praesumuntur rite et solemniter esse acta. (All things are presumed to be correctly and solemnly done.) It was Solmacs burden to overcome this juris tantum presumption. 3. BPI Express Card Corporation v. Court of Appeals, G.R. No. 120639, September 25, 1998 Facts: Marasigan, a lawyer, was a complimentary member of BPI Express Credit Card and was issued a Credit Card with a credit limit of P3,000. His membership was renewed for another year or until February 1990 and the credit limit was increased to P5,000. The he oftentimes exceeded his credit limit but this was never taken against him by BPI and even his mode of paying his monthly bills in check was tolerated. His statement of account for October 1989 amounting to P8,987.84 was not paid in due time. Marasigan admitted having inadvertently failed to pay his account for the said month because he was in Quezon province attending to some professional and personal commitments. He was informed by his secretary that BPI was demanding immediate payment of his outstanding account, was requiring him to issue a check for P15,000 which would include his future bills, and was threatening to suspend his credit card. Marasigan issued Far East Bank check in the amount of P15,000.00, postdated December 15, 1989 which was received on November 23, 1989; the head of the collection department of BPI was formally informed of the postdated check about a week later. On November 28, 1989, BPI served Marasigan a letter by ordinary mail informing him of the temporary suspension of the privileges of his credit card and the inclusion of his account number in their Caution List. He was also told to refrain from further use of his credit card to avoid any inconvenience/embarrassment and that unless he settles his outstanding account with the defendant within 5 days from receipt of the letter, his membership will be permanently cancelled. There is no showing that Marasigan received this letter before December 8, 1989. Confident that he had settled his account with the issuance of the postdated check, Marasigan invited some guests on December 1989 and entertained them at Cafe Adriatico . When he presented his credit card to Cafe Adriatico for the bill amounting to P735.32, said card was dishonored. One of his guests, Mary Ellen Ringler, paid the bill by using her own credit card. In a letter addressed to the BPI, he requested that he be sent the exact billing due him as of December 15, 1989, to withhold the deposit of his postdated check and that said check be returned to him because he had already instructed his bank to stop the payment thereof as the defendant violated their agreement that Marasigan issue the check to BPI to cover his account amounting to only P8,987.84 on the condition that the defendant will not suspend the effectivity of the card. No reply was received by Marasigan. Plaintiff sent defendant another letter dated March 12, 1990 reminding the latter that he had long rescinded and cancelled whatever arrangement he entered into with defendant and requesting for his correct billing, less the improper charges and penalties, and for an explanation within 5 days from receipt thereof why his card was dishonored despite assurance to the contrary by defendants personnel-incharge, otherwise the necessary court action shall be filed. He alleged further that after a few days, a certain Atty. Albano called him inquiring as to how the matter can be threshed out extrajudicially but the latter said that such is a serious matter which cannot be discussed over the phone. BPI served its final demand to the Marasigan requiring him to pay in full his overdue account, including stipulated fees and charges, within 5 days from receipt thereof or face court action and also to replace the postdated check with cash within the same period or face criminal suit for violation of the Bouncing Checks Law. Marasigan, in a reply demanded BPIs compliance with his request in his first letter within 3 days from receipt, otherwise he will file a case against them. Marasigan filed a complaint for damages against BPI. Trial court ruled for Marasigan, finding that BPI abused its right in contravention of Article 19; ordering the defendant to pay damages but also ordering plaintiff to pay defendant its outstanding obligation. CA affirmed. Issue: (1) Whether BPI had the right to suspend the credit card of Marasigan. (2) Whether before the suspension of Marasigans credit card, the parties entered into an agreement where the card could still be used and would be duly honored by accredited establishements. (3) Whether Marasigan can recover damages arising from the cancellation of his card. Held: (1) YES. Under the terms and conditions of the credit card, signed by the private respondent, any card with outstanding balances after 30 days from original billing/statement shall automatically be suspended. (2) YES. The purpose of the arrangement between the parties on November 22, 1989, was for the immediate payment of the Marasigans outstanding account, in order that his credit card would not be suspended. As agreed upon by the parties, on the following day, he did issue a check for P15,000. However, the check was postdated 15 December 1989. A check is only a substitute for money and not money, the delivery of such an instrument does not, by itself operate as payment. 129 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

This is especially true in the case of a postdated check. Thus, the issuance by Marasigan of the postdated check was not effective payment. It did not comply with his obligation under the arrangement with Miss Lorenzo . BPI was therefore justified in suspending his credit card. (3) NO. To find the existence of an abuse of right under Article 19 the following elements must be present: (1) There is a legal right or duty; (2) which is exercised in bad faith; (3) for the sole intent of prejudicing or injuring another. Good faith is presumed and the burden of proving bad faith is on the party alleging it . This, Marasgan failed to do. The action of BPI belies the existence of bad faith. As early as 28 October 1989, BPI could have suspended Marasigans card outright. Instead, BPI allowed private respondent to use his card for several weeks. BPI had even notified BPI of the impending suspension of his credit card and made special accommodations for him for settling his outstanding account. As such, BPI cannot be said to have capriciously and arbitrarily canceled Marasigans credit card. Marasigan suffered damages. However, there is a material distinction between damages and injury. INJURY is the illegal invasion of a legal right; DAMAGE is the loss, hurt, or harm which results from the injury; and damages are the recompense or compensation awarded for the damage suffered. Thus, there can be damage without injury in those instances in which the loss or harm was not the result of a violation of a legal duty. In such cases, the consequences must be borne by the injured person. The law affords no remedy for damages resulting from an act which does not amount to a legal injury or wrong. These situations are often called damnum absque injuria. In order that a plaintiff may maintain an action for the injuries of which he complains, he must establish that such injuries resulted from a breach of duty which the defendant owed to the plaintiff a concurrence of injury to the plaintiff and legal responsibility by the person causing it. The underlying basis for the award of tort damages is the premise that an individual was injured in contemplation of law. Thus, there must first be a breach of some duty and the imposition of liability for that breach before damages may be awarded; and the breach of such duty should be the proximate cause of the injury. We therefore DISAGREE that the dishonor of the credit card of the Marasigan by Cafe Adriatico is attributable to BPI for its willful or gross neglect to inform the Marasigan of the suspension of his credit card. It was Marasigans failure to settle his obligation which caused the suspension of his credit card and subsequent dish onor at Cafe Adriatico . He can not now pass the blame to the BPI for not notifying him of the suspension of his card. The application contained the stipulation that BPI could automatically suspend a card whose billing has not been paid for more than 30 days. Nowhere is it stated in the terms and conditions of the application that there is a need of notice before suspension may be effected. This notwithstanding, on November 28, 1989, the day of the suspension of Marasigans card, BPI sent a letter by ordinary mail notifying him that his card had been temporarily suspended. There is a disputable presumption that letters duly directed and mailed were received on the regular course of mail. Aside from the Marasigans bare denial, he failed to present evidence to rebut the presumption that he received said notice. In fact upon cross-examination, Marasigan admitted that he did receive the letter notifying him of the cancellation. As it was his own negligence which was the proximate cause of his embarrassing and humiliating experience, we find the award of damages by the respondent court clearly unjustified. 4. Custodio v. Court of Appeals, G.R. No. 116100, February 9, 1996 Facts: The Mabasa owns a parcel of land with a 2-door apartment erected thereon situated at Interior P. Burgos St. Taking P. Burgos Street as the point of reference, on the left side, going to Mabasas property, the row of houses will be as follows: That of defendant spouses Custodio, then that of defendants spouses Santos and then that of plaintiff Mabasa. On the right side is that of defendant Morato and then a Septic Tank. As an access to P. Burgos Street from Mabasas property, there are 2 possible passageways. The first passageway is approximately one meter wide and is about 20 meters far fr om Mabasas residence to P. Burgos Street. Such path passes between the previously mentioned row of houses. The second passageway is about 3 meters in width and length from plaintiff Mabasas residence to P. Burgos Street; it is about 26 meters. In passing thru said passageway, a less than a meter wide path through the septic tank and with 5-6 meters in length, has to be traversed. When said property was purchased by Mabasa, there were tenants occupying the premises and who were acknowledged by him as tenants. However, one of said tenants vacated the apartment and when Mabasa went to see the premises, he saw that there had been built an adobe fence in the first passageway making it narrower in width. 130 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

Said adobe fence was first constructed by Santoses along their property which is also along the first passageway. Defendant Morato constructed her adobe fence and even extended said fence in such a way that the entire passageway was enclosed. It was then that the remaining tenants of said apartment vacated the area. Defendant Santos testified that she constructed said fence because there was an incident when her daughter was dragged by a bicycle pedalled by a son of one of the tenants in said apartment along the first passageway. Mabasa filed a civil case for the grant of an easement of right of way against the Custodios, the Santoses, and Morato. A decision was rendered by the trial court, ordering Custodios and Santoses to give plaintiff permanent access ingress and egress, to the public street and ordering the Mabasa to pay defendants Custodios and Santoses the sum of Eight Thousand Pesos (P8,000) as indemnity for the permanent use of the passageway. Plaintiff (Mabasa) represented by his heirs, herein private respondents, went to the CA raising the sole issue of whether or not the lower court erred in not awarding damages in their favor. The CA rendered its decision affirming the judgment of the trial court with modification ordering Custodios, etc to pay plaintiffs-appellants 65K as Actual Damages, 30K as Moral Damages, and 10K Pesos as Exemplary Damages. The rest of the appealed decision is affirmed to all respects. Issue: Whether or not the grant of right of way to herein Mabasa is proper and whether damages should be awarded. Held: NO. The award of damages has no substantial legal basis. A reading of the decision of the CA will show that the award of damages was based solely on the fact that the original plaintiff, Pacifico Mabasa, incurred losses in the form of unrealized rentals when the tenants vacated the leased premises by reason of the closure of the passageway . However, the mere fact that the plaintiff suffered losses does not give rise to a right to recover damages . To warrant the recovery of damages, there must be both a right of action for a legal wrong inflicted by the defendant, and damage resulting to the plaintiff therefrom. Wrong without damage, or damage without wrong, does not constitute a cause of action, since damages are merely part of the remedy allowed for the injury caused by a breach or wrong. There is a material distinction between damages and injury. INJURY is the illegal invasion of a legal right; DAMAGE is the loss, hurt, or harm which results from the injury; and DAMAGES are the recompense or compensation awarded for the damage suffered. Thus, there can be damage without injury in those instances in which the loss or harm was not the result of a violation of a legal duty. These situations are often called damnum absque injuria. In order that a plaintiff may maintain an action for the injuries of which he complains, he must establish that such injuries resulted from a breach of duty which the defendant owed to the plaintiff a concurrence of injury to the plaintiff and legal responsibility by the person causing it. The underlying basis for the award of tort damages is the premise that an individual was injured in contemplation of law. Thus, there must first be the breach of some duty and the imposition of liability for that breach before damages may be awarded; it is not sufficient to state that there should be tort liability merely because the plaintiff suffered some pain and suffering . 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. In the case at bar, although there was damage, there was no legal injury. Contrary to the claim of Mabasa, petitioners could not be said to have violated the principle of abuse of right. In order that the principle of abuse of right provided in Article 21 of the Civil Code can be applied, it is essential that the following requisites concur : (1) The defendant should have acted in a manner that is contrary to morals, good customs or public policy; (2) The acts should be willful; and (3) There was damage or injury to the plaintiff. The act of petitioners in constructing a fence within their lot is a valid exercise of their right as owners. At the time of the construction of the fence, the lot was not subject to any servitudes. There was no easement of way existing in favor of Mabasa, either by law or by contract. The fact that Mabasa had no existing right over the said passageway is confirmed by the very decision of the trial court granting a compulsory right of way in their favor after payment of just compensation. It was only that decision which gave Mabasa the right to use the said passageway after payment of the compensation and imposed a corresponding duty on petitioners not to interfere in the exercise of said right . Hence, prior to said decision, petitioners had an absolute right over their property and their act of fencing and enclosing the same was an act which they may lawfully perform in the employment and exercise of said right. 131 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

5. Amonoy v. Gutierrez, G.R. No. 140420, February 15, 2001 Facts: The case had its roots in a Special Proceeding for the settlement of the estate of one Julio Cantolos re: 6 parcels of land in Tanay, Rizal. Amonoy was counsel of the heirs. A Project of Partition was submitted and approved, which Amonoy charging P27,600 as attorneys fees. The Pasamba and Formida then executed a deed of real estate mortgage on the 2 lots adjudicated to them to secure the payment of his fees. The estate was then closed. Said fees were not paid. Amonoy filed for foreclosure, and secured a judgment in his favor, and payment was ordered, otherwise, the lots would be foreclosed. They were, and Amonoy was the highest bidder for both. Included in those sold was the lot on which the Sp. Gutierrez had their house. The heirs tried to annul the sale, but this was dismissed. A Writ of Possession as well as an order for demolition was issued. The aggrieved parties then filed a petition with the Supreme Court. On a twin musiyun (Mahigpit na Musiyon Para Papanagutin Kaugnay ng Paglalapastangan) with full titles as fanciful and elongated as their Petisyung (Petisyung Makapagsuri Taglay and Pagpigil ng Utos), a temporary restraining order was granted on 2 June 1986 enjoining the demolition of the petitioners' houses. The petition for Certiorari was granted, and the Writ of Possession and demolition was reversed. However, the house had already been destroyed. They thus filed a complaint for damages in connection with the same against Amonoy. The RTC dismissed it, while the CA granted damages. Hence, the present appeal. Issue: Whether or not Amonoy is liable for damages. Held: YES. LIABLE. Well-settled is the maxim that damage resulting from the legitimate exercise of a person's rights is a loss without injury damnum absque injuria for which the law gives no remedy. In other words, one who merely exercises one's rights does no actionable injury and cannot be held liable for damages . Amonoy invokes this legal precept in arguing that he is not liable for the demolition of respondents' house. He maintains that he was merely acting in accordance with the Writ of Demolition ordered by the RTC . We reject this submission. Damnum absque injuria finds no application to this case. True, Amonoy commenced the demolition of respondents' house on May 30, 1986 under the authority of a Writ of Demolition issued by the RTC. But the records show that a Temporary Restraining Order (TRO), enjoining the demolition of respondents' house, was issued by the Supreme Court on June 2, 1986. The CA also found, based on the Certificate of Service of the Supreme Court process server, that a copy of the TRO was served on Amonoy himself on June 4, 1986. Amonoy, however, did not heed the TRO of this Court. We agree with the CA that he unlawfully pursued the demolition of respondents' house well until the middle of 1987. This is clear from Respondent Angela Gutierrez's testimony. The foregoing disproves the claim of Amonoy that the demolition, which allegedly commenced only on May 30, 1986, was completed the following day. It likewise belies his allegation that the demolitions had already ceased when he received notice of the TRO. Although the acts of Amonoy may have been legally justified at the outsset, their continuation after the issuance of the TRO amounted to an insidious abuse of his right. Indubitably, his actions were tainted with bad faith. Had he not insisted on completing the demolition, respondents would not have suffered the loss that engendered the suit before the RTC. Verily, his acts constituted not only an abuse of a right, but an invalid exercise of a right that had been suspended when he received the TRO from this Court on June 4, 1986. By then he was no longer entitled to proceed with the demolition. The exercise of a right ends when the right disappears, and it disappears when it is abused, especially to the prejudice of others. The mask of a right without the spirit of justcie which gives it life, is repugnant to the modern concept of social law. It cannot be said that a person exercises a right when he unnecessarily prejudices another. Over and above the specific precepts of postive law are the supreme norms of justice; and he who violates them violates the law. For this reason it is not permissible to abuse our rights to prejudice others. Artilce 19, known to contain what is commonly referred to as the principle of abuse of rights, sets certain standards which may be observed not only in the exercise of one's rights but also in the performance of one's duties.These standards are the following: to act with justice; to give everyone his due; recognizes the primordial limitation on all rights: that in their exercise, the norms of human conduct set forth in Article 19 and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be held responsible. Clearly then, the demolition of respondents' house by Amonoy, despite his receipt of the TRO, was not only an abuse but also an unlawful exercise of such right. In insisting on his alleged right, he wantonly violated this Court's Order and wittingly caused the destruction of respondents; house. 132 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

Obviously, Amonoy cannot invoke damnum absque injuria, a principle premised on the valid exercise of a right. Anything less or beyond such exercise will not give rise to the legal protection that the principle accords. And when damage or prejudice to another is occasioned thereby, liability cannot be obscured, much less abated. In the ultimate analysis, Amonoys liability is premised on the obligation to repair or to make whole the damage caused to another by reason of one's act or omission, whether done intentionally or negligently and whether or not punishable by law. 6. DOLE Philippines, Inc. (Stanfilco), v. Rodriguez, G.R. No. 174646, August 22, 2012 Facts: Africa is the registered owner of a banana plantation. Africa entered into a Farm Management Contract (FMC) with his Farm Manager Yuchenco for the purpose of planting and growing bananas and/or other crops and of marketing the products and fruits thereof. Yuchengco assigned his rights as farm manager to Checkered Farms, Inc. Checkered Farms entered into an Exclusive Purchasing Agreement with DOLE (Stanfilco) who bound itself to purchase all the acceptable bananas that would be produced by the former on the lot subject of the FMC. Checkered Farms on the other hand undertook to allow DOLE to introduce installations and improvements on the land and to dismantle and remove all non-permanent installations and improvements it has introduced upon the expiration of the period of the contract provided that DOLE has the option to leave them on the land without cost to Checkered Farms. Over the years, DOLE introduced on the subject parcel of land several improvements: plantation roads and canals, footbridges, irrigation pumps, pipelines, hoses, and overhead cable proppings. Checkered Farms requested for a 10-year extension of the contract due to expire : request was not acted upon by Africa. Africa ceded and assigned the 17-hectare subject land to Rodriguez as payment and in full satisfaction of the formers obligation to the latter. Rodriguez introduced himself to Checkered Farms as Africas successorininterest and informed it that he was taking over complete possession and absolute control of the subject land. Rodriguez manifested his interest in DOLEs banana growers program. Since he was interested in its corporate growers contract, Rodriguez allowed DOLE to assume temporarily the continued operation and management of the banana plantation. Checkered Farms asked Rodriguez that it be allowed to operate the banana plantation until February 1992 to fully wind up the operational activities: Rodriguez denied the request. In the same letter, Rodriguez demanded for the accounting of fruits harvested from the expiration of their contract. Checkered Farms claimed that the plantation produced 382 boxes of exportable fruits equivalent to P8,564.44 and incurred expenses of P91,973.48.2 DOLE rejected Rodriguezs proposal for the companys contract growing arrangement . Instead, it offered to grant the same terms and conditions as those given to independent small growers in General Santos City. Rodriguez requested for reconsideration of the denial of his application for the companys contract growing arrangement and asked DOLE to desist from dismantling the improvements thereon. As no agreement was reached between DOLE and Rodriguez, the latter demanded from the former an accounting. DOLE eventually dismantled and removed the improvements in the plantation. Rodriguez sent a letter demanding the payment of the bananas harvested during the interim administration of Stanfilco and protesting the unwarranted and wanton destruction of the farm: Stanfilco refused to heed demand. Africa filed a Complaint for Recovery of Sum of Money and Damages against DOLE and its officials alleging that its staff, acting under the direct supervision of Epelepsia who has been working directly with the instructions of Bulaun, all performing under the administrative and operational responsibility of Murillo, stealthily, treacherously and ruthlessly raided the subject plantation destroying the facilities therein which makes them liable for damages. Africa also demanded indemnity for damages suffered from DOLEs act of depriving the former from using the water facilities installed in the plantation that resulted in the spoilage of Africas plants. DOLE alleged that he was the owner of the irrigation system on the subject plantation. Thus, it has the right to remove them after the expiration of its contract with Africa; That it was a valid exercise of its rights as owner of the irrigation system and an exercise of the right to dismantle and remove the same under the Exclusive Purchasing Agreement with Checkered Farms. RTC rendered a Decision in favor of Africa, making DOLE solidarily liable. CA affirmed and likewise upheld Africas legal standing. Hence, this petition.

133

Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

DOLE asserts that the resulting injury to Africa arose from the removal and dismantling of improvements that it undertook pursuant to the provisions of the Exclusive Purchasing Agreement with Checkered Farms is damnum absque injuria. It points out that it removed only the removable irrigation facilities refraining from exercising said legal right with respect to the drainage canals, the roads and the overhead proppings which covered the entire length of the farm. Issue: Whether or not the CA erred in not applying the legal principle of Damnum absque injuria considering that it found the removal and dismantling of the DOLE installations and improvements to be in mere discharge of a contractual right. Held: NO. It is settled that DOLE was given the right to dismantle the improvements introduced on the subject plantation as clearly provided for in its contract with Checkered Farms . On the basis of the contractual provision, DOLE insists that it cannot be held liable for damages allegedly suffered by Africa based on the principle of damnum absque injuria. The Court does not agree. Under the principle of DAMNUM ABSQUE INJURIA, the legitimate exercise of a persons rights, even if it causes loss to another, does not automatically result in an actionable injury. The law does not prescribe a remedy for the loss. This principle, however, DOES NOT APPLY when there is an abuse of a persons right as in this case. While we recognize DOLEs right to remove the improvements on the subject plantation, it, however, exercised such right arbitrarily, unjustly and excessively resulting in damage to Africas plantation. The exercise of a right, though legal by itself, must nonetheless be in accordance with the proper norm. When the right is exercised arbitrarily, unjustly or excessively and results in damage to another, a legal wrong is committed for which the wrongdoer must be held responsible. The exercise of a right ends when the right disappears, and it disappears when it is abused, especially to the prejudice of others. Abuse of right under Article 19 sets the standards which may be observed not only in the exercise of ones rights but also in the performance of ones duties. When a right is exercised in a manner which does not conform with the norms enshrined in Article 19 and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be held responsible. One is not allowed to exercise his right in a manner which would cause unnecessary prejudice to another or if he would thereby offend morals or good customs. Thus, a person should be protected only when he acts in the legitimate exercise of his right, that is when he acts with prudence and good faith; but not when he acts with negligence or abuse. In this case, evidence presented by Africa shows that as a result of the diggings made by DOLE in order to remove the pipes, banana plants were uprooted. Some of these plants in fact had fruits yet to be harvested causing loss to Africa. After the removal of said pipes, DOLE failed to restore the plantation to its original condition by its failure to cover the diggings with soil. As found by the CA, the Damage Report submitted by Angel Flores stated that there was ground destruction because diggings were done indiscriminately without concern for the standing banana plants . He even added that the destruction of the ground was extensive. The witnesses for DOLE likewise admitted that they had the responsibility to cover the diggings made but failed to do so after the pipelines had been retrieved. Witnesses and pictures also showed that indeed, banana plants were uprooted and scattered around the plantation. It is noteworthy that DOLE was given the right to remove only the improvements and facilities that were non permanent instead of giving it the unqualified right to remove everything that it introduced to the plantation. Though not specifically stated in the contract, the reason for said qualification on DOLEs right of removal is the imperative need to protect the plantation from unnecessary destruction that may be caused by the exercise of the right . If permanent structures were allowed to be removed, damage to the plantation would not be avoided. This qualified right should have given DOLE the necessary warning to exercise its right with caution with due regard to the other structures in the plantation and most especially the banana plants and fruits therein. If it was able to consider cutting the pipes underneath the roads within the plantation so as not to destroy said roads, why did it not take into consideration the banana plants and fruits that would be destroyed by reason thereof? Africa would not have been unduly prejudiced had it waited for the bananas to be harvested before removing the pipes. Clearly, DOLE abused its right. Complementing the principle of abuse of rights are the provisions of Articles 20 and 21. The foregoing rules provide the legal bedrock for the award of damages to a party who suffers damage whenever one commits an act in violation of some legal provision, or an act which though not constituting a transgression of positive law, nevertheless violates certain rudimentary rights of the party aggrieved. ARTICLE 20 pertains to damages arising from a violation of law which does not obtain here as petitioner was perfectly within its right to remove the improvements introduced in the subject plantation. ARTICLE 21, on the other hand, refers to acts contra bonus mores. The act is within the article only when it is done willfully. The act is willful if it is done with knowledge of its injurious effect; it is not required that the act be done purposely to produce the injury. Undoubtedly, DOLE removed the pipes with knowledge of its injurious effect which is the destruction of the banana plants and fruits ; and failed to cover the diggings which caused ground destruction. It should, therefore, be liable for damages. 134 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013 IV. VICARIOUS LIABILITY Civil Code o Articles 2180 to 2182 (Memorize) Parents and Guardians Family Code (as amended by RA 6809) o Articles 219, 221, 236

Atty. Jess Lopez

A. -

1. Exconde v. Capuno, 101 Phil. 843 (1957) Facts: Dante Capuno, 15 yrs old, was a member of the Boy Scouts and a student of the Balintawak Elementary School. He attended a parade in honor of Dr . Jose Rizal in said city upon instruction of the city school's supervisor. From the school Dante, with other students, boarded a jeep and when the same started to run, he took hold of the wheel and drove it while the driver sat on his left side. The jeep turned turtle and two of its passengers , Amado Ticzon and Isidoro Caperina, died as a consequence. It appears that Delfin Capuno, father of Dante, was not with his son at the time of the accident , nor did he know that his son was going to attend a parade. He only came to know it when his son told him after the accident that he attended the parade upon instruction of his teacher. Dante Capuno was found guilty of double homicide through reckless imprudence for the death of Isidoro Caperina and Amado Ticzon. Sabina Exconde (mother of Isidro) filed the present action against Delfin Capuno and his son Dante Capuno asking for damages in the aggregate amount of P2,959.00 for the death of her son. --she reserved her right to bring separate civil action Exconde contends that Delfin Capuno (father) is liable for the damages in question jointly and severally with his son Dante because at the time the latter committed the negligent act which resulted in the death of the victim, he was a minor and was then living with his father, and inasmuch as these facts are not disputed, the civil liability of the father is evident. Capuno set up the defense that if any one should be held liable for the death of Isidoro Caperina , it should be Dante Capuno and not his father Delfin because at the time of the accident, the former was not under the control, supervision and custody of the latter. Lower court sustained the defense and only Dante Capuno was required to pay the damages . Plaintiff appealed to CA but the case was certified to SC (only involves questions of law). Issue: Whether Delfin Capuno (father) can be held civilly liable, jointly and severally with his son Dante, for damages resulting from the death of Isidoro Caperina caused by the negligent act of minor Dante Capuno . Held: YES. Father is held vicariously liable. Delfin Capuno and Dante Capuno are jointly and severally liable for the damages. Head of school/school not liable It is true that under the law, "teachers or directors of arts and trades are liable for any damages caused by their pupils or apprentices while they are under their custody", but this provision only applies to an institution of arts and trades and not to any academic educational institution. Dante Capuno was then a student of the Balintawak Elementary School and as part of his extra-curricular activity, he attended the parade in honor of Dr . Jose Rizal upon instruction of the city school 's supervisor. And it was in connection with that parade that Dante boarded a jeep with some companions and while driving it, the accident occurred. In the circumstances, it is clear that neither the head of that school, nor the city school's supervisor, could be held liable for the negligent act of Dante because he was not then a student of an institution of arts and trades as provided for by law . Father liable The civil liability which the law impose upon the father, and, in case of his death or incapacity, the mother, for any damages that may be caused by the minor children who live with them, is obvious. It is a necessary consequence of the parental authority they exercise over them which imposes upon the parents the "duty of supporting them, keeping them in their company, educating them and instructing them in proportion to their means ", while, on the other hand, gives them the "right to correct and punish them in moderation". The only way by which they can relieve themselves of this liability is if they prove that they exercised all the diligence of a good father of a family to prevent the damage . The defendants failed to prove this.

135

Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013 REYES, J. B. L., J., dissenting:

Atty. Jess Lopez

There is no sound reason for limiting Art. 1903 to teachers of arts and trades and not to academic ones. What substantial difference is there between them in so far as concerns the proper supervision and vigilance over their pupils? The words "arts and trades" in Art. 1903 does not qualify "teachers" but only "heads of establishments". It would seem clear that where the parent places the child under the effective authority of the teacher, the latter, and not the parent, should be the one answerable for the torts committed while under his custody, for the very reason that the parent is not supposed to interfere with the discipline of the school nor with the authority and supervision of the teacher while the child is under instruction. And if there is no authority, there can be no responsibility. There is no question that the pupil, Dante Capuno, was instructed by the City School Supervisor to attend the Rizal parade. The father had every reason to assume that in ordering a minor to attend a parade with other children, the school authorities would provide adequate supervision over them. If a teacher or scout master was present, then he should be the one responsible for allowing the minor to drive the jeep without being qualified to do so. If no teacher or master was at hand to watch over the pupils, the school authorities are the ones answerable for that negligence, and not the father. Having proved that he entrusted his child to the custody of school authorities that were competent to exercise vigilance over him, the father has rebutted the presumption of Art. 1903 and the burden of proof shifted to the claimant to show actual negligence on the part of the parent in order to render him liable. 2. Tamargo v. Court of Appeals, 209 SCRA 518 (1992) Facts: Adelberto Bundoc, a minor of 10 years of age shot Jennifer Tamargo with an air rifle killing her. The adoptive parent and natural parents of Tamargo filed a complaint for damages against the parents of Bundoc. Prior to the incident, the spouses Rapisura filed a petition to adopt Adelberto Bundoc. The same was granted after the incident. Respondents Bundoc alleged that because of the adoption proceedings, they were not indispensable parties to the case, and that the adopting parents (Sps. Rapisura) were indispensable parties to the action since parental authority had shifted to the adopting parents from the moment the successful petition for adoption was filed . Tamargo meanwhile countered that since Adelberto Bundoc was then actually living with his natural parents, parental authority had not ceased nor been relinquished by the mere filing and granting of a petition for adoption. Issue: Whether Sps. Bundoc are indispensible parties to the case. Held: YES. Adelberto Bundoc's voluntary act of shooting Jennifer Tamargo with an air rifle gave rise to a cause of action on quasi-delict against him under Art. 2176. Upon the other hand, the law imposes civil liability upon the father and, in case of his death or incapacity, the mother, for any damages that may be caused by a minor child who lives with them. Article 2180 of the Civil Code reads: This principle of parental liability is a species of what is frequently designated as vicarious liability, or the doctrine of "imputed negligence" under Anglo-American tort law, where a person is not only liable for torts committed by himself, but also for torts committed by others with whom he has a certain relationship and for whom he is responsible. Thus, parental liability is made a natural or logical consequence of the duties and responsibilities of parents their parental authority which includes the instructing, controlling and disciplining of the child. 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 overturned 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. The respondents argument that the decree of adoption that was issued in favor of the Rapisura spouses vested parental authority to them as of the time of the filing of the petition for adoption (before Bundoc shot Tamargo) is unavailing. Under the Civil Code, the basis of parental liability for the torts of a minor child is the relationship existing between the parents and the minor child living with them and over whom, the law presumes, the parents exercise supervision and control. Article 58 of the Child and Youth Welfare Code, re-enacted this rule: 136 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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Article 58 Torts Parents and guardians are responsible for the damage caused by the child under their parental authority in accordance with the civil Code. Article 221 of the Family Code has similarly insisted upon the requisite that the child, doer of the tortious act, shall have beer in the actual custody of the parents sought to be held liable for the ensuing damage: Art. 221. Parents and other persons exercising parental authority shall be civilly liable for the injuries and damages caused by the acts or omissions of their unemancipated children living in their company and under their parental authority subject to the appropriate defenses provided by law. (Emphasis supplied) The court do not believe that parental authority is properly regarded as having been retroactively transferred to and vested in the adopting parents, the Rapisura spouses, at the time the air rifle shooting happened. The court does not consider that retroactive effect may be given to the decree of adoption so as to impose a liability upon the adopting parents accruing at a time when adopting parents had no actual or physically custody over the adopted child . Retroactive affect may perhaps be given to the granting of the petition for adoption where such is essential to permit the accrual of some benefit or advantage in favor of the adopted child. In the instant case, however, to hold that parental authority had been retroactively lodged in the Rapisura spouses so as to burden them with liability for a tortious act that they could not have foreseen and which they could not have prevented (since they were at the time in the United States and had no physical custody over the child Adelberto) would be unfair and unconscionable. Such a result, moreover, would be inconsistent with the philosophical and policy basis underlying the doctrine of vicarious liability. Put a little differently, no presumption of parental dereliction on the part of the adopting parents, the Rapisura spouses, could have arisen since Adelberto was not in fact subject to their control at the time the tort was committed. 3. Libi v. Intermediate Appellate Court, 214 SCRA 16 (1992) Facts: Two years before their deaths, Julie Gotiong & Wendel Libi were sweethearts. On December 1978, Julie broke up with Wendell (ganun talaga eh) after she supposedly found him to be sadistic and irresponsible. During the first 2 weeks of January 1979 (still within the 3 Month Rule), Wendel kept pestering Julie with demands for reconciliation but the latter persisted in her refusal. This prompted Wendel to resort to threats against her. To avoid him, Julie stayed with her best friend from Jan 7-13. On Jan 14, the lovers were found dead inside the Gotiong residence in Cebu. Each died from a single gunshot wound from the same firearm, a Smith and Wesson revolver licensed under Cresencio Libis (father) name, which was also recovered in the crime scene. No witnesses to the incident. Sps Gotiong alleged that Wendel killed Julie and then shot himself. Sps. Libi rejected this and claimed that an unknown party whom Wendel may have displeased or antagonized by reason of his work as a narcotics informer of the Constabulary Anti-Narcotics Unit (CANU) killed the two. Sps. Gotiong, as Julies parents, filed a Civil Case against Wendels parents to recover damages arising from the latters vicarious liability under Art. 2180. Trial court dismissed. On appeal, IAC reversed and adjudged Sps. Lubi subsidiarily liable. Issue: Whether Art. 2180 was correctly interpreted to make Sps. Libi liable for vicarious liability. Held: Conclusion was correct but the liability imposed was wrong. (Not really important but in case he asks: Libis contention that an unknown party killed them both was found to be unavailing. FIRST, the fact that they could not find gun powder residue (as seen in the negative paraffin test) in the Wendels wound does not automatically rule out suicide. This is because, within 8 hours after the killing, the bodies were already brought to the Cosmopolitan Funeral Homes and dried. Also, there was a possibility that smokeless powder was used which would thus not produce any gunpowder when subjected to a paraffin test. SECOND, the testimony of Libis witnesses that they saw a shadow of the supposed killer a few moments after the incident was rebutted by the testimony of one Manolo Alfonso. Manolo and his sister Malou were waiting for Julie when they heard her scream. Thus, Manolo climbed the fence to see what happened. When he heard the first gunshot, another one rang out 5 seconds later. Manolo explains that the shadow the other witnesses saw was actually him and not the unknown killer.) As a defense, Sps Libi claimed they execised the diligence of a good father of a family. The diligence of a good father of a family required by law in a parent and child relationship consists, to a large extent, of the instruction and supervision of the child. However, it was established that Cresencio owned the gun in question which he kept in a locked safety deposit box in a drawer inside their room. Each spouse had a key and the wifes key was always in her bag. All these were known to Wendel. While it was never seen that Wendel ever used the gun, his mother admitted that on the night of the incident, 137 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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Petitioners were gravely remiss in their duties as parents in not diligently supervising the activities of their son , despite his minority and immaturity, so much so that it was only at the time of Wendells death that they allegedly discovered that he was a CANU agent and that Cresencios gun was missing from the safety deposit box. Both parents were sadly wanting in their duty and responsibility in monitoring and knowing the activities of their children who, for all they know, may be engaged in dangerous work such as being drug informers, or even drug users. Neither was a plausible explanation given for the photograph of Wendell, with a handwritten dedication to Julie Ann at the back thereof, holding upright what clearly appears as a revolver and on how or why he was in possession of that firearm. Petitioners should be held liable for the civil liability based on what appears from all indications was a crime committed by their minor son. Now, we do not have any objection to the doctrinal rule holding the parents liable, but the categorization of their liability as being subsidiary, and not primary, in nature requires a hard second look considering previous decisions of this court on the matter which warrant comparative analyses. If the liability of the parents for crimes or quasi-delicts of their minor children is subsidiary, then the parents can neither invoke nor be absolved of civil liability on the defense that they acted with the diligence of a good father of a family to prevent damages. On the other hand, if such liability imputed to the parents is considered direct and primary, that diligence would constitute a valid and substantial defense. We believe that the civil liability of parents for quasi delicts of their minor children, as contemplated in Article 2180, is primary and not subsidiary. In fact, if we apply Article 2194 of said code which provides for solidary liability of joint tortfeasors, the persons responsible for the act or omission, in this case the minor and the father and, in case of his death or incapacity, the mother, are solidarily liable. Accordingly, such parental liability is primary and not subsidiary, hence the last paragraph of Article 2180 provides that (t)he responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage. We are also persuaded that the liability of the parents for felonies committed by their minor children is likewise primary, not subsidiary. Just like the rule in Article 2180, the civil liability of the parents for crimes committed by their minor children is likewise direct and primary, and also subject to the defense of lack of fault or negligence on their part, that is, the exercise of the diligence of a good father of a family. To hold that the civil liability under Article 2180 would apply only to quasi-delicts and not to criminal offenses would result in the absurdity that in an act involving mere negligence the parents would be liable but not where the damage is caused with criminal intent In Exconde, where the 15-year old minor was convicted of double homicide through reckless imprudence, in a separate civil action arising from the crime the minor and his father were held jointly and severally liable for failure of the latter to prove the diligence of a good father of a family. The same liability in solidum and, therefore, primary liability was imposed in a separate civil action in Araneta on the parents and their 14-year old son who was found guilty of frustrated homicide, but on the authority of Article 2194. However, in Salen, the father was declared subsidiarily liable for damages arising from the conviction of his son, who was over 15 but less than 18 years of age, by applying Article 2180 but, this time, disregarding Article 2194 of the Civil Code. Under Article 2180, the enforcement of such liability shall be effected against the father and, in case of his death or incapacity, the mother. This was amplified by the Child and Youth Welfare Code which provides that the same shall devolve upon the father and, in case of his death or incapacity, upon the mother or, in case of her death or incapacity, upon the guardian, but the liability may also be voluntarily assumed by a relative or family friend of the youthful offender. However, under the Family Code, this civil liability is now, without such alternative qualification, the responsibility of the parents and those who exercise parental authority over the minor offender. For civil liability arising from quasi-delicts committed by minors, the same rules shall apply in accordance with Articles 2180 and 2182 of the Civil Code, as so modified. In the case at bar, whether the death of the hapless Julie Ann Gotiong was caused by a felony or a quasi-delict committed by Wendell Libi, respondent court did not err in holding petitioners liable for damages arising therefrom. B. Owners and Managers of Enterprises/Employers

1. Bahia v. Litonjua, 30 Phil. 624 (1915) Facts: This is an action to recover damages from the defendant s for the death of plaintiffs daughter alleged to have been caused by the negligence of defendants servant in driving an automobile over the child and causing her death. Ramon Ramirez was the owner and manager of a garage in the city of Manila known as the International Garage. His mother, the Fausta Litonjua, sometime before the accident from which this action springs, purchased an automobile and 138 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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turned it over to the garage to assist her son in the business in which he was engaged. On the 14th of May, 1911, Ramirez rented the said automobile to the defendant Mariano Leynes, together with a chauffeur and a machinist, to be used by him for a short time to carry persons living in Balayan to and from the fiesta which was about to take place in Tuy. According to the arrangement between them, Ramires was to furnish the automobile, chauffeur, and machinist, and the defendant Leynes was to pay him therefor P20 a day. On the 16th of May, 1911, while passing from Balayan to Tuy, the automobile, by reason of a defect in the steering gear, refused to obey the direction of the driver in turning a corner in the streets of Balayan, and, as a consequence, ran across the street and into the wall of a house against which the daughter of plaintiff was leaning at the time. The font of the machine struck the child in the center of the body and crushed her to death. The action was brought against the mother of Ramirez, who bought the automobile, and Leynes, under whose direction and control the automobile was being operated at the time of the accident. Ramirez was not made a party. LC held: Litonjua is not liable, Leynes is liable. Issue: Whether or not Leynes, the lessee of the vehicle, is liable under Art. 2180. Held: NO. While it may be said that, at the time of the accident, the chauffeur who was driving the machine was a servant of Leynes, in as much as the profits derived from the trips of the automobile belonged to him and the automobile was operated under his direction, nevertheless, this fact is not conclusive in making him responsible for the negligence of the chauffeur or for defects in the automobile itself. Article 1903 of the Civil Code not only establishes liability in cases of negligence, but also provides when that liability shall cease. It says: The liability referred to in this article shall cease when the persons mentioned therein prove that they employed all the diligence of a good father of a family to avoid the damages. From this article two things are apparent: (1) That when an injury is caused by the negligence of a servant or employee there instantly arises a presumption of a law that there was negligence on the part of the master or employer either in the selection of the servant or employee, or in supervision over him after the selection, or both; and (2) that presumption is juris tantum and not juris et de jure, and consequently, may be rebutted. It follows necessarily that if the employees shows to the satisfaction of the court that in selection and supervision he has exercised the care and diligence of a good father of a family, the presumption is overcome and he is relieved from liability. This theory bases the responsibility of the master ultimately on his own negligence and not on that of his servant. This is the notable peculiarly of the Spanish law negligence. It is, of course, in striking contrast to the American doctrine that, in relations with strangers, the negligence of the servant is conclusively the negligence of the master. In the case before us the death of the child caused by a defect in the steering gear of the automobile immediately raised the presumption that Leynes was negligent in selecting a defective automobile or in his failure to maintain it in good condition after selection, and the burden of proof was on him to show that he had exercised the care of a good father of a family. As to SELECTION, Leynes has clearly shown that he exercised the care and diligence of a good father of a family. He obtained the machine from a reputable garage and it was, so far as appeared, in good condition. The workmen were likewise selected from a standard garage, were duly licensed by the Government in their particular calling, and apparently thoroughly competent. The machine had been used but a few hours when the accident occurred and it is clear from the evidence that the defendant had no notice, either actual or constructive, of the defective condition of the steering gear. From the commencement of the use of the machine until the accident occurred sufficient time had not elapsed to require an examination of the machine by the defendant as a part of his duty of inspection and supervision. While it does not appear that Leynes formulated rules and regulations for the guidance of the drivers and gave them proper instructions, designed for the protection of the public and the passengers, the evidence shows, as we have seen, that the death of the child was not caused by a failure to promulgate rules and regulations . It was caused by a defect in the machine as to which Leynes has shown himself free from responsibility. Leynes having shown to the satisfaction of the court that he exercised the care and diligence of a good father of a family is relieved of responsibility with respect to the death of plaintiffs child. 2. Philippine Rabbit Bus Lines, Inc., v. Phil-American Forwarders, Inc., G.R. No. L-25142, March 25, 1975 Facts: Philippine Rabbit Bus Lines (PRBL) and Pangalangan filed a complaint for damages against Phil-American Forwarders (PAF), Balingit, and Pineda. They alleged that on November 24, 1962, Pineda recklessly drove a PAF freight truck along the national highway at Pampanga. It bumped PRBLs bus, driven by Pangalangan, and he suffered injuries. The bus was disabled for 79 days. Balingit was PAFs manager. 139 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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Balingit filed a motion to dismiss the complaint against him for lack of cause of action, as he was not Pinedas employer. The CFI granted dismissal; hence, this appeal. Issue: Whether or not the terms employers and owners and managers of an establishment or enterprises in Art icle 2180 include the manager of a corporation. Held: NO. We are of the opinion that those terms do not include the manager of a corporation. It may be gathered from the context of article 2180 that the term "manager" ("director" in the Spanish version) is used in the sense of "employer". Hence, under the allegations of the complaint, no tortious or quasi-delictual liability can be fastened on Balingit as manager of Phil-American Forwarders, Inc., in connection with the vehicular accident already mentioned because he himself may be regarded as an employee or dependiente of his employer, Phil-American Forwarders, Inc. (Side Issue) The bus company and its driver, in their appellants' brief, injected a new factual issue which was not alleged in their complaint. They argue that Phil- American Forwarders, Inc. is merely a business conduit of Balingit because out of its capital stock with a par value of P41,200, Balingit and his wife had subscribed P40,000 and they paid P10,000 on their subscription, while the other incorporators, namely, Rodolfo Limjuco, Ponciano Caparas and Rafael Suntay paid P250.25 and P25, respectively. That argument implies that the veil of corporate fiction should be pierced and that Phil-American Forwarders, Inc. and Balingit and his wife should be treated as one and the same civil personality. We cannot countenance that argument in this appeal. It was not raised in the lower court. Affirmed. 3. Martin v. Court of Appeals, 205 SCRA 591 (1992) Facts: At around 2AM in the morning, a private car owned by Ernesto Martin, while being driven by Nestor Martin, it crashed into a Meralco electric post. The car was wrecked and the pole severely damaged. Meralco sued Ernesto for damages in the RTC of Pasig, as the employer of Nestor Martin. The RTC decision held in favor of the plaintiff, which was affirmed by the CA. Issue: Whether the employer of the driver is liable. Held: The complaint for damages was filed by MERALCO against only Ernesto Martin as alleged employer of Nestor Martin, the driver of the car at the time of the accident. Nestor Martin (driver) was not impleaded. The action was based on tort under Article 2180, providing in part that: Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. The above rule is applicable only if there is an employer-employee relationship although it is not necessary that the employer be engaged in any business or industry. It differs in this sense from Article 103 of the RPC, which requires that the employer be engaged in an industry to be subsidiarily liable for the felony committed by his employee in the course of his employment. Whether or not engaged in any business or industry, the employer under Article 2180 is liable for the torts committed by his employees within the scope of their assigned task. But it is necessary first to establish the employment relationship. Once this is done, the plaintiff must show, to hold the employer liable, that the employee was acting within the scope of his assigned task when the tort complained of was committed . It is only then that the defendant, as employer, may find it necessary to interpose the defense of due diligence in the selection and supervision of the employee as allowed in that article. In the case at bar, no evidence whatsoever was adduced by the MERALCO to show that the Ernesto was the employer of Nestor Martin at the time of the accident. The trial court merely presumed the existence of the employer-employee relationship and held that the MERALCO had not refuted that presumption. It noted that although the defendant alleged that he was not Nestor Martin's employer, "he did not present any proof to substantiate his allegation." A presumption is defined as an inference as to the existence of a fact not actually known, arising from its usual connection with another which is known, or a conjecture based on past experience as to what course human affairs ordinarily take. It is either a presumption juris, or of law, or a presumption hominis, or of fact. There is no law directing the deduction made by the courts below from the particular facts presented to them by the parties. Such deduction is not among the conclusive presumptions under Section 2 or the disputable presumptions under Section 3 of Rule 131 of the Rules of Court. In other words, it is not a presumption juris. Neither is it a presumption hominis, which is a reasonable deduction from the facts proved without an express direction of law to that effect. The facts proved, or not denied, viz., the ownership of the car and the circumstances of the accident, are not enough bases for the inference that the 140 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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petitioner is the employer of Nestor Martin. Most male persons know how to drive and do not have to employ others to drive for them unless this is needed for business reasons. Many cannot afford this luxury, and even if they could, may consider it an unnecessary expense and inconvenience. In the present case, the more plausible assumption is that Nestor Martin is a close relative of Ernesto Martin and on the date in question borrowed the car for some private purpose. Nestor would probably not have been accommodated if he were a mere employee for employees do not usually enjoy the use of their employer's car at 2AM. As the employment relationship between Ernesto Martin and Nestor Martin could not be presumed , it was necessary for the MERALCO to establish it by evidence. It was enough for the Martin to deny the alleged employment relationship, without more, for he was not under obligation to prove this negative averment. The above observations make it unnecessary to examine the question of the driver's alleged negligence or the lack of diligence on the part of the Martin in the selection and supervision of his employee. 4. St. Francis High School v. Court of Appeals, G.R. No. 82465, February 25, 1991 Facts: Ferdinand Castillo, 13, a freshman student of Section 1-C at St. Francis wanted to join a school picnic by 1-B and 1-C at Talaan Beach, Quezon. His parents did not allow him to join due to short notice. However, they did allow him to bring food to the teachers with the directive that he should go back home after so doing . The teachers, however, persuaded him to go to the beach. While they were in the water, one of the female teachers was apparently drowning. Ferdinand attempted to come to her rescue, but he drowned. He could not be resuscitated. His parents then filed a complaint against the school and the teachers, alleging their failure to exercise the proper diligence of a good father of a family in preventing Ferdies drowning. The RTC held the teachers solidarily liable, but absolved the school of liability for lack of evidence to show that the picnic was school-sanctioned. The verbal precautions were insufficient; they did not even test the depth of the water; two other persons drowned; the male supervisors were somewhere having a drinking spree. It also held liable two teachers who arrived after the drowning. The CA, however, found the school liable, since it cannot be gainsaid that the same was held under the supervision of the teachers employed by the said school. It absolved the two latecomers since they were attending to an entrance exam as part of their duties and had no participation in the negligence of the others. It also held that the matter of permission on the part of the parents is irrelevant to the determination of negligent behavior. Issue: Whether or not there was negligence attributable to the defendant pursuant to Art. 2180 in relation to Art 2176. Held: NOT LIABLE. If at all petitioners are liable for SFHS, this is because of their own negligence or the negligence of people under them. In the instant case however, as will be shown hereunder, SFHS are neither guilty of their own negligence nor guilty of the negligence of those under them. At the outset, it should be noted that parents of the victim Ferdinand allowed their son to join the excursion. Testimony of Dr. Castillo on cross exam. by Atty. Flores Q Now, when your son asked you for money to buy food, did you not ask him where he will bring this? A I asked him where he was going, he answered, I am going to the picnic, and when I asked him where, he did not answer, sir. Q And after giving the money, you did not tell him anything more? A No more, sir. Q And after that you just learned that your son join the picnic? A Yes, sir. Q And you came to know of it after the news that your son was drowned in the picnic came to you, is that correct? A Yes, sir. Q From 8:00 o'clock in the morning up to 12:00 o'clock noon of March 20, 1982, you did not know that your son join the picnic? A No, sir, I did not know. Q Did you not look for your son during that time? A I am too busy with my profession, that is why I was not able, sir. Q You did not ask your wife? A I did not, sir. Q And neither did your wife tell you that your son join the picnic? A Later on after 12:00, sir. 141 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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Q And during that time you were too busy that you did not inquire whether your son have joined that picnic? A Yes, sir. (TSN, pp. 16-17, hearing of April 2, 1984 witness Romulo Castillo) The fact that he gave money to his son to buy food for the picnic even without knowing where it will be held , is a sign of consent for his son to join the same. Furthermore. Testimony of Dr. Lazaro on cross examination: Q How did you conduct this mental and physical examination? A I have interviewed several persons and the patient herself She even felt guilty about the death of her son because she cooked adobo for him so he could join the excursion where her son died of drowning. Q Why were you able to say she was feeling guilty because she was the one who personally cooked the adobo for her son? A It was during the interview that I had gathered it from the patient herself. She was very sorry had she not allowed her son to join the excursion her son would have not drowned. I don't know if she actually permitted her son although she said she cooked adobo so he could join. (Emphasis Supplied) (TSN, p. 19, hearing of April 30, 1984, Dr. Lazaro witness). CA committed an error in applying Article 2180 of the Civil Code in rendering SFHS liable for the death of respondent's son. Article 2180, par. 4 states that: The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. Under this paragraph, it is clear that before an employer may be held liable for the negligence of his employee, the act or omission which caused damage or prejudice must have occurred while an employee was in the performance of his assigned tasks. In the case at bar, the teachers were not in the actual performance of their assigned tasks. The incident happened not within the school premises, not on a school day and most importantly while the teachers and students were holding a purely private affair, a picnic. It is clear from the beginning that the incident happened while some members of the I-C class of St. Francis High School were having a picnic at Talaan Beach. This picnic had no permit from the school head or its principal, Benjamin Illumin because this picnic is not a school sanctioned activity neither is it considered as an extra-curricular activity. As earlier pointed out by the trial court, mere knowledge by petitioner/principal Illumin of the planning of the picnic by the students and their teachers does not in any way or in any manner show acquiescence or consent to the holding of the same. The application therefore of Article 2180 has no basis in law and neither is it supported by any jurisprudence. If we were to affirm the findings of CAt on this score, employers would forever be exposed to the risk and danger of being hailed to Court to answer for the misdeeds or omissions of the employees even if such act or omission he committed while they are not in the performance of their duties. Finally, no negligence could be attributable to the teachers to warrant the award of damages to the respondents-spouses. Petitioners Connie Arquio the class adviser of I-C, the section where Ferdinand belonged, did her best and exercised diligence of a good father of a family to prevent any untoward incident or damages to all the students who joined the picnic. In fact, Connie invited co-petitioners Tirso de Chavez and Luisito Vinas who are both P.E. instructors and scout masters who have knowledge in First Aid application and swimming. Moreover, even respondents' witness, Segundo Vinas, testified that "the defendants (petitioners herein) had life savers especially brought by the defendants in case of emergency." (p. 85, Rollo) The records also show that both petitioners Chavez and Vinas did all what is humanly possible to save the child. Testimony of Luisito Vinas on cross examination, Q And when you saw the boy, Ferdinand Castillo, you approached the boy and claim also having applied first aid on him? A Yes, sir. 142 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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Q And while you were applying the so called first aid, the children were covering you up or were surrounding you? A Yes, sir. Q You were rattled at that time, is it not? A No, sir. Q You mean you were in calm and peaceful condition? A Yes, sir. Q Despite the fact that the boy was no longer responding to your application of first aid? A Yes, sir. Q You have never been disturbed, "nababahala" in the process of your application of the first aid on the body of Ferdinand Castillo? A No, sir, because we were attending to the application of first aid that we were doing, sir. Q After you have applied back to back pressure and which you claimed the boy did not respond, were you not disturb anyway? A I was disturbed during that time, sir. Q For how many minutes have you applied the back to back pressure? A From 9 to 11 times, sir. Q You mean 9 to 11 times of having applied the pressure of your body on the body of Ferdinand Castillo? A Yes, sir. Q Will you please describe how you applied a single act of back to back pressure? A This has been done by placing the boy lay first downwards, then the face was a little bit facing right and doing it by massaging the back of the child, sir." (TSN, pp. 32-35, hearing of July 30, 1984) Testimony of Tirso de Chavez on direct examination ATTY. FLORES: Q Who actually applied the first aid or artificial respiration to the child? A Myself, sir. Q How did you apply the first aid to the guy? A The first step that I took, with the help of Mr. Luisito Vinas, was I applied back to back pressure and took notice of the condition of the child. We placed the feet in a higher position, that of the head of the child, sir. Q After you have placed the boy in that particular position, where the feet were on a higher level than that of the head, what did you do next? A The first thing that we did, particularly myself, was that after putting the child in that position, I applied the back to back pressure and started to massage from the waistline up, but I noticed that the boy was not responding, sir. Q For how long did you apply this back to back pressure on the boy? A About 10 seconds, sir. Q What about Mr. Vinas? A Almost the same a little longer, for 15 seconds, sir. Q After you noticed that the boy was not responding, what did you do? A When we noticed that the boy was not responding, we changed the position of the boy by placing the child facing upwards laying on the sand then we applied the mouth to mouth resuscitation, sir. (pp. 92-93, Rollo) With these facts in mind, no moral nor exemplary damages may be awarded in favor of respondentsspouses. The case at bar does not fall under any of the grounds to grant moral damages. DISSENT, Padilla, J. In my opinion, the record clearly shows negligence on the part of the teachers, with the exception of Aragones and Jaro. I may concede, albeit with reservation, that the aforementioned petitioners may not have been negligent in finding ways and means to revive the young Castillo AFTER the drowning incident. Their application of first-aid measures may have failed to revive him but the petitioners had fully exhausted their efforts to save the deceased. This concession, however, is given with hesitation, for there is indication in the record that peti tioners may have tarried too long in securing immediate medical attention for the deceased. All this aside, I am really disturbed about, and would like to emphasize the demonstrated lack of diligence on the part of the petitioners-teachers BEFORE the unfortunate incident took place. Despite awareness that the waters in the area were deep, petitioners-teachers did not take concrete steps to make sure their wards did not stray too far and too deeply. Even if they were not actually informed of the possible dangers which the area posed, petitioners-teachers should have first tested the waters, so to speak, to ensure which parts thereof were safe for swimming purposes.

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Torts & Damages 2013

Atty. Jess Lopez

However, this was not the case for as testified to by petitioner de Chavez, they admitted that they did not even go to the water to check its depth although they were aware that some parts of it were deep. At best, it appears that only oral safety instructions were imparted to the young excursionists. It thus appears that the petitioners-teachers failed to exercise the proper diligence or what I may refer to as DILIGENCE BEFORE THE FACT. As earlier mentioned, the steps taken to revive the deceased may be considered adequate, despite my reservations, but the over-all lack of diligence on the part of petitioners-teachers suffices to put them within the standards set by this Court in determining the existence of negligence. 5. Castilex Industrial Corporation v. Vasquez, 321 SCRA 393 (1999) Supra Doctrine: The negligence of ABAD is not an issue at this instance. CASTILEX presumes said negligence but claims that it is not vicariously liable for the injuries and subsequent death caused by ABAD. CASTILEX contends that the 5th paragraph of Article 2180 should only apply to instances where the employer is not engaged in business or industry. Since it is engaged in the business of manufacturing and selling furniture it is therefore not covered by said provision. Instead, the 4th paragraph should apply. CASTILEXs interpretation of the 5th paragraph is not accurate. The phrase even though the former are not engaged in any business or industry found in the 5th paragraph should be interpreted to mean that it is not necessary for the employer to be engaged in any business or industry to be liable for the negligence of his employee who is acting within the scope of his assigned task. A distinction must be made between the 2 provisions to determine what is applicable. Both provisions apply to employers: the 4th PAR, to owners and managers of an establishment or enterprise; and the 5th PAR, to employers in general, whether or not engaged in any business or industry. The 4th PAR. covers negligent acts of employees committed either in the service of the branches or on the occasion of their functions, while the 5th PAR encompasses negligent acts of employees acting within the scope of their assigned task. The latter is an expansion of the former in both employer coverage and acts included. Negligent acts of employees, whether or not the employer is engaged in a business or industry, are covered so long as they were acting within the scope of their assigned task, even though committed neither in the service of the branches nor on the occasion of their functions. For, admittedly, employees oftentimes wear different hats. They perform functions which are beyond their office, title or designation but which, nevertheless, are still within the call of duty. This court has applied the 5th par. to cases where the employer was engaged in a business or industry such as truck operators and banks. The CA cannot, therefore, be faulted in applying the said paragraph of Article 2180 to this case. It is undisputed that ABAD was a Production Manager of CASTILEX at the time of the tort occurrence. As to whether he was acting within the scope of his assigned task is a question of fact, which the court a quo and the CA resolved in the affirmative. It was enough for CASTILEX to deny that ABAD was acting within the scope of his duties; it was not under obligation to prove this negative averment. ABAD, who was presented as a hostile witness, testified that at the time of the incident, he was driving a companyissued vehicle, registered under the name of CASTILEX. He was then leaving the restaurant where he had some snacks and had a chat with his friends after having done overtime work for the petitioner. However, the mere fact that ABAD was using a service vehicle at the time of the injurious incident is not of itself sufficient to charge CASTILEX with liability for the negligent operation of said vehicle unless it appears that he was operating the vehicle within the course or scope of his employment. The following are principles in American Jurisprudence on the employers liability for the injuries inflicted by the negligence of an employee in the use of an employers motor vehicle : USE OF VEHICLE GOING TO or FROM MEALS: It has been held that an employee who uses his employers vehicle in going from his work to a place where he intends to eat or in returning to work from a meal is not ordinarily acting within the scope of his employment in the absence of evidence of some special business benefit to the employer. Evidence that by using the employers vehicle to go to and from meals, an employee is enabled to reduce his time-off and so devote more time to the performance of his duties supports the finding that an employee is acting within the scope of his employment while so driving the vehicle. USE OF VEHICLE GOING TO or FROM WORK: In the same vein, traveling to and from the place of work is ordinarily a personal problem or concern of the employee, and not a part of his services to his employer. Hence, in the absence of some special benefit to the employer other than the mere performance of the services available at the place where he is needed, the employee is not acting within the scope of his employment even though he uses his employers motor vehicle. The employer may, however, be liable where he derives some special benefit from having the employee drive home in the employers vehicle as when the employer benefits from having the employee at work earlier and, presumably, 144 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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spending more time at his actual duties. Where the employees duties require him to circulate in a general area with no fixed place or hours of work, or to go to and from his home to various outside places of work, and his employer furnishes him with a vehicle to use in his work, the courts have frequently applied what has been called the special errand or roving commission rule, under which it can be found that the employee continues in the service of his employer until he actually reaches home. However, even if the employee be deemed to be acting within the scope of his employment in going to or from work in his employers vehicle, the employer is not liable for his negligence where at the time of the accident, the employee has left the direct route to his work or back home and is pursuing a personal errand of his own. USE OF VEHICLE OUTSIDE REGULAR WORKING HOURS: An employer who loans his motor vehicle to an employee for the latters personal use outside of regular working hours is generally not liable for the employees negligent operation of the vehicle during the period of permissive use, even where the employer contemplates that a regularly assigned motor vehicle will be used by the employee for personal as well as business purposes and there is some incidental benefit to the employer. Even where the employees personal purpose in using the vehicle has been accomplished and he has started the return trip to his house where the vehicle is normally kept, it has been held that he has not resumed his employment, and the employer is not liable for the employees negligent operation of the vehicle during the return trip. The foregoing principles and jurisprudence are applicable in our jurisdiction albeit based on the doctrine of respondeat superior, not on the principle of bonus pater familias as in ours. Whether the fault or negligence of the employee is conclusive on his employer as in American law or jurisprudence, or merely gives rise to the presumption juris tantum of negligence on the part of the employer as in ours, it is indispensable that the employee was acting in his employers business or within the scope of his assigned task. In the case at bar, it is undisputed that ABAD did some overtime work at the CASTILEXs office, which was located in Mandaue City. Thereafter, he went to Goldies Restaurant in Fuente Osmena, Cebu City, which is about 7 km away from his place of business. A witness for the Vasquez, a sidewalk vendor, testified that Fuente Osmea is a lively place even at dawn because Goldies Restaurant and Back Street were still open and people were drinking thereat. Moreover, prostitutes, pimps, and drug addicts littered the place. At the Goldies Restaurant, ABAD took some snacks and had a chat with friends. It was when ABAD was leaving the restaurant that the incident in question occurred. That same witness for the respondents testified that at the time of the vehicular accident, ABAD was with a woman in his car, who then shouted: Daddy, Daddy! This woman could not have been ABADs daughter, for ABAD was only 29 years old at the time. To the mind of this Court, ABAD was engaged in affairs of his own or was carrying out a personal purpose line with his duties at the time he figured in a vehicular accident. It was then about 2:00 a.m. of 28 August 1988, way beyond the normal working hours. ABADs working day had ended; his overtime work had already been completed. His being at a place which, as petitioner put it, was known as a haven for prostitutes, pimps, and drug pushers and addicts, had no connection to CASTILEXs business; neither had it any relation to his duties as a manager. Rather, using his service vehicle even for personal purposes was a form of a fringe benefit or one of the perks attached to his position. Since there is paucity of evidence that ABAD was acting within the scope of the functions entrusted to him, CASTILEX had no duty to show that it exercised the diligence of a good father of a family in providing ABAD with a service vehicle. Thus, justice and equity require that petitioner be relieved of vicarious liability for the consequences of the negligence of ABAD in driving its vehicle. 6. Mercury Drug Corporation v. Huang, G.R. No. 172122, June 22, 2007 Facts: Mercury Drug is the registered owner of a 6-wheeler 1990 Mitsubishi Truck. It has in its employ petitioner Rolando J. del Rosario as driver. Spouses Richard and Carmen Huang are the parents of respondent Stephen Huang and own the red 1991 Toyota Corolla GLI Sedan. Both vehicles figured in an accident in Taguig. Stephen Huang was driving the car, weighing 1,450 kg., while Del Rosario was driving the truck, weighing 14,058 kg. Both were traversing the C-5 Highway, north bound, coming from the general direction of Alabang going to Pasig. The car was on the left innermost lane while the truck was on the next lane to its right, when the truck suddenly swerved to its left and slammed into the front right side of the car. The collision hurled the car over the island where it hit a lamppost, spun around and landed on the opposite lane. The truck also hit a lamppost, ran over the car and zigzagged towards, and finally stopped in front of Buellah Land Church. At the time of the accident, Del Rosario only had a Traffic Violation Receipt (TVR). His drivers license had been confiscated because he had been previously apprehended for reckless driving. Stephen Huang was paralyzed for life from his chest down and requires continuous medical and rehabilitation treatment. Respondents fault petitioner Del Rosario for committing gross negligence and reckless imprudence while driving, and Mercury Drug for failing to exercise the diligence of a good father of a family in the selection and supervision of its driver.

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Torts & Damages 2013

Atty. Jess Lopez

Mercury Drug claims that it exercised due diligence of a good father of a family in the selection and supervision of all its employees. Trial court found Mercury Drug and Del Rosario jointly and severally liable. CA affirmed. Issue: Whether Mercury & Del Rosario are solidarily liable. Held: YES. Drivers negligence Evidence does not support petitioners claim that at the time of the accident, the truck was at the left inner lane and that it was Stephen Huangs car, at its right, which bumped the right front side of the truck. The court took note of the testimony of Dr. Marlon Rosendo H. Daza, an expert in the field of physics. Given that 1. Two vehicles collided; 2. One vehicle is ten times heavier, more massive than the other; 3. Both vehicles were moving in the same direction and at the same speed of about 85 to 90 kilometers per hour; 4. The heavier vehicle was driving at the innermost left lane, while the lighter vehicle was at its right, Dr. Daza testified that if the lighter vehicle hits the right front portion of the heavier vehicle, the general direction of the light vehicle after the impact would be to the right side of the heavy vehicle, not the other way around. The truck, he opined, is more difficult to move as it is heavier. It is the car, the lighter vehicle, which would move to the right of, and away from the truck. Dr. Daza also gave a further study on the basis of the same assumptions except that the car is on the left side of the truck, in accordance with the testimony of Stephen Huang. Dr. Daza concluded that the general direction of the car after impact would be to the left of the truck. In this situation, the middle island against which the car was pinned would slow down the car, and enable the truck to catch up and hit the car again, before running over it. Petitioners tried to show the damages that the truck sustained at its front right side. The attempt does not impress. The photographs presented were taken a month after the accident, and Rogelio Pantua, the automechanic who repaired the truck and authenticated the photographs, admitted that there were damages also on the left side of the truck. Considering that the car was smaller and lighter than the six-wheeler truck, the impact allegedly caused by the car when it hit the truck could not possibly be so great to cause petitioner to lose all control that he failed to even step on the brakes. The evidence proves petitioner Del Rosarios negligence as the direct and proximate caus e of the injuries suffered by respondent Stephen Huang. Mercury Drugs liability The liability of the employer under Art. 2180 is direct or immediate. It is not conditioned on a prior recourse against the negligent employee, or a prior showing of insolvency of such employee. It is also joint and solidary with the employee. To be relieved of liability, Mercury Drug should show that it exercised the diligence of a good father of a family, both in the selection of the employee and in the supervision of the performance of his duties. Thus, in the SELECTION of its prospective employees, the employer is required to examine them as to their qualifications, experience, and service records. With respect to the SUPERVISION of its employees, the employer should formulate standard operating procedures, monitor their implementation, and impose disciplinary measures for their breach. To establish compliance with these requirements, employers must submit concrete proof, including documentary evidence. Mercury Drug presented testimonial evidence on its hiring procedure. According to the Recruitment and Training Manager of Mercury Drug, applicants are required to take theoretical and actual driving tests, and psychological examination In the case of Del Rosario, however, it was admitted that he took the driving tests and psychological examination when he applied for the position of Delivery Man, but not when he applied for the position of Truck Man. It was also admitted that Del Rosario used a Galant which is a light vehicle, instead of a truck during the driving tests. No tests were conducted on the motor skills development, perceptual speed, visual attention, depth visualization, eye and hand coordination and steadiness of petitioner Del Rosario. No NBI and police clearances were also presented. Lastly, petitioner Del Rosario attended only three driving seminars and the only seminar he attended before the accident, which occurred in 1996, was held twelve years ago in 1984. Mercury Drug does not provide for a back-up driver for long trips. At the time of the accident, Del Rosario has been out on the road for more than 13 hours, without any alternate. Mercury Drug likewise failed to show that it exercised due diligence on the supervision and discipline over its employees. In fact, on the day of the accident, Del Rosario was driving without a license. He was holding a TVR for reckless driving. He testified that he reported the incident to his superior, but nothing was done about it. He was not suspended or reprimanded. No disciplinary action whatsoever was taken against petitioner Del Rosario. 146 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013 In awarding damages, the court took into consideration the ff:

Atty. Jess Lopez

He was only 17 years old, nearly 6 feet tall and weighed 175 pounds. He was in 4th year high school, and a member of the school varsity basketball team. He was also class president and editor- in chief of the school annual. He had shown very good leadership qualities. He was looking forward to his college life, having just passed the entrance examinations of the University of the Philippines, De La Salle University, and the University of Asia and the Pacific. The University of Sto. Tomas even offered him a chance to obtain an athletic scholarship, but the accident prevented him from attending the basketball tryouts. Without doubt, he was an exceptional student. He excelled both in his academics and extracurricular undertakings. He is intelligent and motivated, a go-getter, as testified by Francisco Lopez, respondent Stephen Huangs godfather and a bank executive. Had the accident not happened, he had a rosy future ahead of him. He wanted to embark on a banking career, get married and raise children. The mother was talking about the irony of it all: Mercury Drug caused the injury and yet they have no choice but to buy the medicines for the injury from Mercury Drug. 7. Sanitary Steam Laundry v. Court of Appeals, 300 SCRA 20 (1998) Supra Facts: A collision occurred between a Mercedes Benz panel truck and a Cadillac Cimarron which caused the death of 3 persons and injuries of others. At around 8PM, while the Cimarron was traveling along Aguinaldo Highway in Imus, Cavite on its way back to Manila, the Cimarron was hit on its front portion by petitioners panel truck. The driver of the truck claimed that a jeepney in front of him suddenly stopped. In order to avoid hitting the jeepney, the driver stepped on the brakes which caused the vehicle to swerve to the left and encroach on a portion of the opposite lane. This eventually caused the collision. Private respondents filed a civil case for damages against herein petitioner. Petitioner raises the defense that the driver of the Cimarron was negligent and was guilty of violation of traffic rules and regulations at the time of the mishap (overloaded car, the front seat was occupied by 4 (wth) persons, and the car only had one headlight functioning). They also invoke the last clear chance doctrine, stating that the driver of the Cimarron had the last clear chance when the truck driver braked and swerved as a consequence. Issue: Whether or not Sanitary Steam Laundry is liable as an employer of the negligent truck driver. Held: YES. It has not been shown how the alleged negligence of the Cimarron driver contributed to the collision between the vehicles. Indeed, petitioner has the burden of showing a causal connection between the injury received and the violation of the Land Transportation and Traffic Code. He must show that the violation of the statute was the proximate or legal cause of the injury or that it substantially contributed thereto. Negligence, consisting in whole or in part, of violation of law, like any other negligence, is without legal consequence unless it is a contributing cause of the injury. Also according to the testimonies given, it was shown that the driver of the panel truck lost control of his vehicle and bumped the Cimarron. Hence, even if both headlights of the Cimarron were lighted, it would have been bumped just the same because the driver of the panel truck could not stop despite the fact that he applied the brakes. Petitioners contention that because of decreased visibility, caused by the fact that the Cimarron allegedly had only one headlight on, its driver failed to see the Cimarron is without any basis in fact. Only its driver claimed that the Cimarron had only one headlight on. The police investigator did not state in his report or in his testimony that the Cimarron had only one headlight on. There is also no connection as to the overloading or the number of persons sitting in the front seat. It cannot be said that these circumstances affected the maneuverability of the Cimarron. It was shown that because of the swerving of the truck, no maneuvering could have avoided the outcome. Additionally it was found that the truck was at a speed above the acceptable limit. It was traversing at what appears to be 60 (mph or km/h, the court was unsure) wherein the speed limit was only 50 km/h. Employers Liability Petitioner contends that the non-submission of the NBI clearance and police clearance of its driver does not mean that it failed to exercise the diligence of a good father of the family in the selection and supervision of its employees. It argues that there is no law requiring employees to submit NBI and police clearance prior to their employment. Hence, petitioners failure to require submission of these documents does not mean that it did not exercise due diligence in the selection and supervision of its employees. On the other hand, it asserts that its employment of Herman Hernandez as a driver means that he had passed the screening tests of the company, including submission of the aforementioned documents. Petitioner maintains that the presumption is that the said driver submitted NBI and police clearance. He also contends that there was no need to conduct a psychological and physical test on its employees since there is no requirement under the law to do such. The court disagrees with the petitioner. It agrees with the CA in ruling that that petitioners policy of requiring prospective employees to submit NBI and police clearance and to have at least 2 years experience as driver prior to 147 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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Atty. Jess Lopez

employment was not enough to prove the exercise of due diligence and that even this policy petitioner failed to prove by its failure to present the drivers NBI and police records during the trial. With respect to the requirement of passing psychological and physical tests prior to his employment, although no law requires it, such circumstance would certainly be a reliable indicator of the exercise of due diligence. According to the trial court: No tests of skill, physical as well as mental and emotional, were conducted on their would-be employees. No on-the-job training and seminars reminding employees, especially drivers, of road courtesies and road rules and regulations were done. There were no instructions given to defendants drivers as to how to react in cases of emergency nor what to do after an emergency occurs. There was even failure on the part of defendant to present its concerned employees 204 file. All these could only mean failure on the part of defendant to exercise the diligence required of it of a good father of a family in the selection and supervision of its employees. Indeed, driving exacts a more than usual toll on the senses. Accordingly, it behooves employers to exert extra care in the selection and supervision of their employees. They must go BEYOND the minimum requirements fixed by law. 8. Carticiano v. Nuval, G.R. No. 138054, September 28, 2000 Facts: Zach Carticiano was on his way home t o Imus Cavite while driving fathers car a Ford Laser. On the opposite side of the road and on the way to Paranaque, Darwin was driving an owner type Jeep owned by Nuval. As the 2 cars were about to pass each other, Darwin veered his vehicle to the left and thus occupied a portion of the other lane. As such, a head on collision between the 2 vehicles occurred. Consequently, Darwin immediately fled from the scene. Nearby residents pulled Zac out of the car and was brought to a hospital by a government agent who happened to be passing by. Zac suffered multiple fractures on his left leg and other injuries in his body. Nuval offered 100k as compensation for the injuries caused by but was refused. Thereafter, Zac initiated a criminal complaint against Darwin. Also, a civil suit was filed against Nuval as owner. Zac claims that Darwins recklessness was the proximate cause for the injury he sustained and, as the Nuvals employee, the latter was liable for not execising due diligence in the selection and supervision of his employee. On the other hand, Nuval argues that Darwin was not an employee but only a casual who had worked with Nuval for only 5 days but was thereafter terminated. Furthermore, he claims that Darwin was not authorized to drive the vehicle. CA exonerated Nuval on the ground that Zac did not present evidence showing that the driver was actually an employee of Nuvali at the time of the accident. Moreover, assuming that he was, it was not shown that he was acting within the scope of his assigned task when the incident happened. Issue: Whether Nuval can be held liable for the negligence of Darwin. Held. YES. The only proof proferred by Nuval to show that Darwin was no longer his employee was the payroll in which the latters name was not included. However, as revealed by the testimonies of the witnesses presented during trial, Nuval had other employees working for him who were not listed in the payroll either. The rather easy access which Darwin had to the keys to the vehicle of Nuval further wea kened the latters cause. First, nobody questioned the fact that the former had freely entered Nuvals house where the keys to the vehicle were kept. The theory of Nuval that Darwin must have stolen the keys as well as the vehicle is rather farfetched and not supported by any proof whatsoever. It is obviously an afterthought concocted to present some semblance of a defense. Second, both Nuval and his employees who testified did not act as if the vehicle had been stolen. He had not reported the alleged theft of his vehicle. Neither did he search nor ask his employees to search for the supposedly stolen vehicle. In fact, he testified that his employees had told him that the keys and the vehicle had merely probably been stolen by Darwin. Moreover, facts established in the case show that Darwin was acting within the scope of the authority given him when the collision occurred. That he had been hired only to bring Nuvals children to and from school must be rejected. While this may be one of the assigned tasks given him, no convincing proof was presented showing that it was his only task. His authority was to drive Nuvals vehicle. Third parties are not bound by the allegation that the driver was authorized to operate the jeep only when the employers children were on board the vehicle. Giving credence to this outlandish theory would enable employers to escape their legal liabilities with impunity. Such loophole is easy to concoct and is simply unacceptable. Nuvalis defense that, at the time of the accident, Darwin was no longer his employee, having been merely hired for a few days, is inconsistent with his other argument of due diligence in the selection of an employee

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Atty. Jess Lopez

Once a driver is proven negligent in causing damages, the law presumes the vehicle owner equally negligent and imposes upon the latter the burden of proving proper selection of employee as a defense. The allegation of contributory negligence is also unavailing because the accident was caused by the fact that Darwins jeep suddenly veered towards Zacarias lane when the vehicles were about to pass each other. This made it difficult for Zac to avoid the impending injury. Also, no evidence was presented that Zac could have evaded the jeep had he been more diligent under the circumstances. 9. Universal Aquarius, Inc., v. Q.C. Human Resources Management Corporation, G.R.. 155990, Sep. 12, 2007 Facts: Universal Aquarius, Inc. (Universal) is engaged in the manufacture and distribution of chemical products in Metro Manila. It operates a chemical plant in Antipolo City. Conchita Tan (Tan), as a proprietor under the name and style of Marman Trading (Marman), is engaged in the trading, delivery and distribution of chemical products in Metro Manila, with a depot in Antipolo City adjoining Universal's chemical plant. Q.C. Human Resources Management Corporation (Resources) is engaged in supplying manpower to various establishments. It supplied Universal with about 74 temporary workers to assist Universal in the operation of its chemical plant in Antipolo City. On December 19, 2000, Capocyon and 36 other union officers and members of Obrero Pilipino, (labor union) picketed, barricaded and obstructed the entry and exit of Universal's Antipolo City chemical plant and intercepted Universal's delivery trucks thereby disrupting its business operations. Marman's depot, which adjoined Universal's plant, suffered a similar fate. On December 27, 2000, Universal and Tan filed a Complaint against the strikers and Resources before the RTC for breach of contract and damages suffered due to the disruption of their respective business operations. On January 3, 2001, Universal forged an Agreement (To End Labor Dispute) with Obrero Pilipino. Thus, the strike which affected the business operations of Universal and Marman ended. Universal and Tan then filed a Notice of Dismissal as against the strikers. On January 8, 2001, Resources filed a Motion to Dismiss on the grounds that the complaint stated no cause of action against it; that, assuming the existence of such cause of action, the same was lost upon dismissal of the case against the individual defendants; and lack of jurisdiction. Issue: Whether the complaint states a cause of action. Held: The Rules of Court makes it clear that failure to make a sufficient allegation of a cause of action in the complaint warrants the dismissal thereof. Section 2, Rule 2 defines a cause of action as the act or omission by which a party violates the right of another. It is the delict or the wrongful act or omission committed by the defendant in violation of the primary right of the plaintiff. Its essential elements are as follows: 1. A right in favor of the plaintiff by whatever means and under whatever law it arises or is created; 2. An obligation on the part of the named defendant to respect or not to violate such right; and 3. Act or omission on the part of such defendant in violation of the right of the plaintiff or constituting a breach of the obligation of the defendant to the plaintiff for which the latter may maintain an action for recovery of damages or other appropriate relief. It is only upon the occurrence of the last element that a cause of action arises , giving the plaintiff the right to maintain an action in court for recovery of damages or other appropriate relief. Anent UNIVERSAL'S claim for breach for contract and damages, the Court is convinced that the Complaint sufficiently states a cause of action against Resources. The Complaint alleged that Universal had a contract of employment of temporary workers with Resources; and that Resources violated said contract by supplying it with unfit, maladjusted individuals who staged a strike and disrupted its business operations . However, with regard to TAN'S CLAIM for damages, the Court finds that she has no cause of action against Resources. A thorough reading of the allegations of the Complaint reveals that Tan's claim for damages clearly springs from the strike effected by the employees of Resources. It is settled that an employer's liability for acts of its employees attaches only when the tortious conduct of the employee relates to, or is in the course of, his employment. The question then is whether, at the time of the damage or injury, the employee is engaged in the affairs or concerns of the employer or, independently, in that of his own. An employer incurs no liability when an employees conduct, act or omission is beyond the range of employment. Unquestionably, when Resources' employees staged a strike, they were acting on their own, beyond the range of their employment. Thus, Resources cannot be held liable for damages caused by the strike staged by its employees . 10. Filamer Christian Institute v. Court of Appeals, G.R. No. 75112, October 16, 1990 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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Torts & Damages 2013

Atty. Jess Lopez

Facts: Private respondent Potenciano Kapunan, Sr., is an 82 year old retired schoolteacher (now deceased) who was hit by a Pinoy jeep while he was walking along Roxas Ave., Roxas City, at 6:30 p.m. The jeep was owned by Filamer Christian Institute (FCI), and driven by its alleged employee, Funtecha. Funtecha was a student at the school who was assigned work in exchange for free education. He was accompanied by Allan Masa; they both fled the scene. Kapunan was brought by a tricycle driver to the hospital, where he stayed for 20 days. Evidence establishes that only one headlight was functioning at the time. Funtecha only had a student permit, but he convinced Allan Masa the authorized driver to allow him to drive. Kapunan filed a criminal case against Funtecha alone for physical injuries through reckless imprudence; he reserved the right to file an independent civil action. Funtecha was found guilty. Kapunan also filed a civil action for damages before the RTC against FCI, Funtecha, and Masa Allan was not included. Agustin Masa the president and director - was being sued in his personal capacity for allegedly allowing Funtecha his houseboy - to drive despite not having a license. The RTC found Filamer, Funtecha, and Allan Masa (a non-party) solidarily liable. Zenith Insurance Corp. was likewise ordered to pay FCI. FCI and Zenith appealed, but the latters appeal was dismissed for non -payment of docket fees. Issue: Whether or not employer in Art. 2180 applies to FCI as regards Funtecha. Held: NO. In disclaiming liability, Filamer has invoked the provisions of the Labor Code, 7 specifically Section 14, Rule X of Book III which reads: Sec. 14. Working scholars. There is no employer-employee relationship between students on the one hand, and schools, colleges or universities on the other, where students work for the latter in exchange for the privilege to study free of charge ; provided the students are given real opportunity, including such facilities as may be reasonable, necessary to finish their chosen court under such arrangement. It is manifest that under the just-quoted provision of law, Filamer cannot be considered as Funtecha's employer. Funtecha belongs to that special category of students who render service to the school in exchange for free tuition. Funtecha worked for FCI for 2 hours daily for 5 days a week. He was assigned to clean the school passageways from 4:00 a.m. to 6:00 a.m. with sufficient time to prepare for his 7:30 a.m. classes . As admitted by Agustin Masa in open court, Funtecha was not included in the company payroll. The wording of Section 14 is clear and explicit and leaves no room for equivocatio n. To dismiss the implementing rule as one which governs only the "personal relationship" between the school and its students and not where there is already a third person involved, as espoused by private respondents, is to read into the law something that was not legislated there in the first place. The provision of Section 14 is obviously intended to eliminate an erstwhile gray area in labor relations and seeks to define in categorical terms the precise status of working scholars in relation to the learning institutions in which they work for the privilege of a free education. But even if we were to concede the status of an employee on Funtecha, still the primary responsibility for his wrongdoing cannot be imputed to FCI for the plain reason that at the time of the accident, it has been satisfactorily shown that Funtecha was not acting within the scope of his supposed employment. His duty was to sweep the school passages for 2 hours every morning before his regular classes. Taking the wheels of the Pinoy jeep from the authorized driver at 6:30 in the evening and then driving the vehicle in a reckless manner resulting in multiple injuries to a third person were certainly not within the ambit of his assigned tasks. In other words, at the time of the injury, Funtecha was not engaged in the execution of the janitorial services for which he was employed , but for some purpose of his own. It is but fair therefore that Funtecha should bear the full brunt of his tortious negligence. Filamer cannot be made liable for the damages he had caused. Private respondents' attempt to hold petitioner Filamer directly and primarily answerable to the injured party under Article 2180 of the Civil Code would have prospered had they proceeded against Allan Masa, the authorized driver of the Pinoy jeep and undisputably an employee of petitioner. It was Allan's irresponsible act of entrusting the wheels of the vehicle to the inexperienced Funtecha which set into motion the chain of events leading to the accident resulting in injuries to Kapunan, Sr. But under the present set of circumstances, even if the trial court did find Allan guilty of negligence, such conclusion would not be binding on Allan. It must be recalled that Allan was never impleaded in the complaint for damages and should be considered as a stranger as far as the trial court's judgment is concerned . It is axiomatic that no man shall be affected by a proceeding to which he is a stranger.

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Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

11. Filamer Christian Institute v. Court of Appeals, G.R. No. 75112, August 17, 1992 RESOLUTION: In the 1990 decision, the SC ruled that the FCI is not liable for the injuries caused by Funtecha on the grounds that the latter was not an authorized driver for whose acts the petitioner shall be directly and primarily answerable, and that Funtecha was merely a working scholar who, under Section 14, Rule X, Book III of the Rules and Regulations Implementing the Labor Code is not considered an employee of the petitioner. Funtecha was a working student, being a part-time janitor and a scholar of Filamer. He was, in relation to the school, an employee even if he was assigned to clean the school premises for only 2 hours in the morning of each school day. Having a student drivers license, Funtecha requested the driver, Allan Masa, and was allowed, to take over the vehicle while the latter was on his way home one late afternoon. The p lace where Allan lives is also the house of his father, the school president, Agustin Masa. Moreover, it is also the house where Funtecha was allowed free board while he was a student of Filamer Christian Institute. Allan Masa turned over the vehicle to Funtecha only after driving down a road, negotiating a sharp dangerous curb, and viewing that the road was clear. According to Allans testimony, a fast moving truck with glaring lights nearly hit them so that they had to swerve to the right to avoid a collision. Upon swerving, they heard a sound as if something had bumped against the vehicle, but they did not stop to check. Actually, the Pinoy jeep swerved towards the pedestrian, Potenciano Kapunan who was walking in his lane in the direction against vehicular traffic, and hit him. Allan affirmed that Funtecha followed his advise to swerve to the right. At the time of the incident (6:30 P.M.) in Roxas City, the jeep had only one functioning headlight. Allan testified that he was the driver and at the same time a security guard of the FCI. He further said that there was no specific time for him to be off-duty and that after driving the students home at 5:00 in the afternoon, he still had to go back to school and then drive home using the same vehicle. Driving the vehicle to and from the house of the school president where both Allan and Funtecha reside is an act in furtherance of the interest of the FCI. Allans job demands that he drive home the school jeep so he can use it to fetch students in the morning of the next school day. The school president had knowledge that the jeep was routinely driven home for the said purpose. The school president also had knowledge of Funtechas possession of a student drivers license and his desire to undergo driving lessons during the time that he was not in his classrooms. In learning how to drive while taking the vehicle home in the direction of Allans house, Funtecha was not driving for the purpose of his enjoyment or for a frolic of his own but ultimately, for the service for which the jeep was intended by the petitioner school. The Court is constrained to conclude that the act of Funtecha in taking over the steering wheel was one done for and in behalf of his employer for which act FCI cannot deny any responsibility by arguing that it was done beyond the scope of his janitorial duties. The clause within the scope of their assigned tasks for purposes of raising the presumption of liability of an employer, includes any act done by an employee, in furtherance of the interests of the employer or for the account of the employer at the time of the infliction of the injury or damage. Even if somehow, the employee driving the vehicle derived some benefit from the act, the existence of a presumptive liability of the employer is determined by answering the question of whether or not the servant was at the time of the accident performing any act in furtherance of his masters business. Section 14, Rule X, Book III of the Rules implementing the Labor Code, on which the petitioner anchors its defense, was promulgated by the SOLE only for the purpose of administering and enforcing the provisions of the Labor Code on conditions of employment. Rule X is merely a guide to the enforcement of the substantive law on labor. The Court, thus, makes the distinction and so holds that Section 14, Rule X, Book III of the Rules is not the decisive law in a civil suit for damages instituted by an injured person during a vehicular accident against a working student of a school and against the school itself. There exists in the present case an extra-contractual obligation arising from the negligence or reckless imprudence of a person whose acts or omissions are imputable, by a legal fiction, to other(s) who are in a position to exercise an absolute or limited control over (him). Funtecha is an employee of Filamer. He need not have an official appointment for a drivers position in order that the petitioner may be held responsible for his grossly negligent act, it being sufficient that the act of driving at the time of the incident was for the benefit of the petitioner. The fact that Funtecha was not the school driver or was not acting within the scope of his janitorial duties does not relieve the FCI of the burden of rebutting the presumption juris tantum that there was negligence on its part either in the selection of a servant or employee, or in the supervision over him. The petitioner has failed to show proof of its having exercised the required diligence of a good father of a family over its employees Funtecha and Allan. Supervision includes the formulation of suitable rules and regulations for the guidance of its employees and the issuance of proper instructions intended for the protection of the public and persons with whom the employer has relations through his employees. An employer is expected to impose upon its employees he necessary discipline called for in the performance of any act indispensable to the business and beneficial to their employer. 151 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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Atty. Jess Lopez

In the present case, FCI has not shown that it has set forth such rules and guidelines as would prohibit any one of its employees from taking control over its vehicles if one is not the official driver or prohibiting the driver and son of the Filamer president from authorizing another employee to drive the school vehicle. Furthermore, the FCI has failed to prove that it had imposed sanctions or warned its employees against the use of its vehicles by persons other than the driver. In the absence of evidence that the FCI had exercised the diligence of a good father of a family in the supervision of its employees, the law imposes upon it the vicarious liability for acts or omissions of its employees . The liability of the employer is, under Article 2180, primary and solidary. However, the employer shall have recourse against the negligent employee for whatever damages are paid to the heirs of the plaintiff. The actual driver of the school jeep, Allan Masa, was not made a party defendant in the civil case for damages. This is quite understandable considering that as far as the injured pedestrian, Potenciano Kapunan, was concerned, it was Funtecha who was the one driving the vehicle and presumably was one authorized by the school to drive . The plaintiff and his heirs should not now be left to suffer without simultaneous recourse against the petitioner for the consequent injury caused by a janitor doing a driving chore for the petitioner even for a short while. For the purpose of recovering damages under the prevailing circumstances, it is enough that the plaintiff and the private respondent heirs were able to establish the existence of employer-employee relationship between Funtecha and petitioner Filamer and the fact that Funtecha was engaged in an act not for an independent purpose of his own but in furtherance of the business of his employer. 12. Metro Manila Transit Corporation v. Court of Appeals, 223 SCRA 521 (1993) See p. 791 of textbook Facts: 28 August, 1979, 6 a.m. Nenita Custodio was a machine operator working for Dynetics Inc. in Taguig. She boarded a Jeep driven by Agudo Calebag and owned by Victorin Lamayo to go to work. While it was traveling at a fast pace along DBP Ave., a Metro Manila Transit Corp. (MMTC) bus driven by Godofredo Leonardo was also traveling quickly along Honeydew Road. As both approached the intersection of both roads, they failed to slow down nor blow their horns. (Typical Filipino driving.) They thus collided, the jeep ramming the left portion of the bus. Custodio was thrown onto the pavement, unconscious with serious physical injuries. She was brought to the Medical City Hospital where she regained consciousness one week later, and was confined for 24 days thereon. Custodio then filed a complaint for damages against everyone with the assistance of her parents, being a minor. They denied all allegations and pointed fingers at each other. MMTC averred that its bus was driven prudently and carefully, and that since the jeep hit the bus, it was the jeep that was driven recklessly. Lamayo alleged that MMTC and its driver should be liable, being the sole cause of the accident. Calebag the jeepney driver was declared in default. MMTC presented Garbo, a Training Officer, to present the requirements for its divers, i.e. NBI clearance, diploma, birth certificate, license, work certification, interview, checks with other companies, final interview, psycho-physical tests, xrays, and a Constabulary Highway Patrol Group seminar. Its Transport Supervisor, Bautista, also testified as to his duty of monitoring the daily operations and to enforce compliance with its guidelines concerning uniform, traffic rules, and fitness. The RTC found both drivers and the jeep owner solidarily liable, but absolved MMTC for showing diligence in the selection and supervision of its employees. The CA modified this by holding MMTC likewise liable. Issue: (1) Whether or not documentary evidence is needed to support the positive testimonies above. (2) Whether or not their testimonies may be disturbed on appeal (3) Whether or not the evidence presented re: diligence of MMTC in the selection and supervision of its employees is sufficient Held: NO. 1. The first two issues raised by petitioner shall be correlatively discussed in view of their interrelation. In its present petition, MMTC insists that the oral testimonies of its employees were presented as witnesses in its behalf sufficiently prove, even without the presentation documentary evidence, that driver Leonardo had complied with all the hiring and clearance requirements and had undergone all trainings, tests and examinations preparatory to actual employment, and that said positive testimonies spell out the rigid procedure for screening of job applicants and the supervision of its employees in the field. It underscored the fact that it had indeed complied with the measure of diligence in the selection and supervision of its employees as enunciated in Campo, et al. vs. Camarote, et al. requiring an employer, in the exercise of the diligence of a good father of a family, to carefully examine the applicant for employment as to his qualifications, experience and record service, and not merely be satisfied with the possession of a professional driver's license. When as in this case, the findings of the CA and the trial court are contrary to each other, this court may scrutinize the evidence on record, in order to arrive at a correct finding based thereon. 152 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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Atty. Jess Lopez

A perusal of the same shows that since there is no dispute as to the finding of concurrent negligence on the part of the defendant Calebag, the driver of the passenger jeepney, and co-defendant Leonardo, the bus driver of petitioner MMTC, both of whom were solidarily held liable with defendant Lamayo, the owner of the jeepney, we are spared the necessity of determining the sufficiency of evidence establishing the fact of negligence. The contrariety is in the findings of the two lower courts, and which is the subject of this present controversy, with regard to the liability of MMTC as employer of one the erring drivers. The trial court, in absolving MMTC from liability ruled that On the question as to whether defendant MMTC was successful in proving its defense that indeed it had exercised the due diligence of a good father of a family in the selection and supervision of defendant Leonardo, this Court finds that based on the evidence presented during the trial, defendant MMTC was able to prove that it was not only careful and diligent in choosing and screening applicants for job openings but also strict (and) diligent in supervising its employees by seeing to it that its employees were in proper uniforms, briefed in traffic rules and regulations before the start of duty, checked employees to determine whether they were positive for alcohol and followed other rules and regulations and guidelines of the Bureau of Land Transportation as well as its company. Having successfully proven such defense, defendant MMTC therefore, cannot be held liable for the accident. Having reached this conclusion, the Court now, holds that defendant MMTC be totally absolved from liability and that the complaint against it be dismissed whereas respondent court was of the opinion that It is surprising though that witness Milagros Garbo did not testify nor present any evidence that defendant-appellee's driver, defendant Godofredo Leonardo has complied with or has undergone all clearances and trainings she referred to. The clearances, result of seminars and tests which Godofredo Leonardo submitted and complied with, if any, were not presented in court despite the fact that they are obviously in the possession and control of defendant-appellee. Instead, it resorted to generalities. The Court has ruled that due diligence in (the) selection and supervision of employee(s) are not proved by mere testimonies to the effect that its applicant has complied with all the company requirements before one is admitted as an employee but without proof thereof. On the part of Christian Bautista, the transport supervisor of defendant-appellee, he testified that it is his duty to monitor the operation of buses in the field; to countercheck the dispatchers' duty prior to the operation of the buses in the morning; to see to it that bus crew follows written guidelines of the company (t.s.n., April 29, 1988, pp. 4-5), but when asked to present in court the alleged written guidelines of the company he merely stated that he brought with him a "wrong document" and defendant-appellee's counsel asked for reservation to present such written guidelines in the next hearing but the same was (sic) never presented in court. A thorough and scrupulous review of the records of this case reveals that the conclusion of CA is more firmly grounded on jurisprudence and amply supported by the evidence of record than that of the court below. It is procedurally required for each party in a case to prove his own affirmative assertion by the degree of evidence required by law. Coming now to the case at bar, while there is no rule which requires that testimonial evidence, to hold sway, must be corroborated by documentary evidence, or even subject evidence for that matter, inasmuch as the witnesses' testimonies dwelt on mere generalities, we cannot consider the same as sufficiently persuasive proof that there was observance of due diligence in the selection and supervision of employees. Petitioner's attempt to prove its diligentissimi patris familias in the selection and supervision of employees through oral evidence must fail as it was unable to buttress the same with any other evidence, object or documentary, which might obviate the apparent biased nature of the testimony. Our view that the evidence for petitioner MMTC falls short of the required evidentiary quantum as would convincingly and undoubtedly prove its observance of the diligence of a good father of a family has its precursor in the underlying rationale pronounced in the earlier case of Central Taxicab Corp. vs. Ex-Meralco Employees Transportation Co., et al., set amidst an almost identical factual setting, where we held that: This witness spoke of an "affidavit of experience" which a driver-applicant must accomplish before he is employed by the company, a written "time schedule" for each bus, and a record of the inspections and thorough checks pertaining to each bus before it leaves the car barn; yet no attempt was ever made to present in evidence any of these documents, despite the fact that they were obviously in the possession and control of the defendant company. Albert also testified that he kept records of the preliminary and final tests given him as well as a record of the qualifications and experience of each of the drivers of the company. It is rather strange, therefore, that he failed to produce in court the all important record of Roberto, the driver involved in this case. The failure of the defendant company to produce in court any "record" or other documentary proof tending to establish that it had exercised all the diligence of a good father of a family in the selection and supervision of its drivers and buses, notwithstanding the calls therefor by both the trial court and the opposing counsel, argues strongly against its pretensions.

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Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

Torts & Damages 2013

Atty. Jess Lopez

We are fully aware that there is no hard-and-fast rule on the quantum of evidence needed to prove due observance of all the diligence of a good father of a family as would constitute a valid defense to the legal presumption of negligence on the part of an employer or master whose employee has by his negligence , caused damage to another.. (R)educing the testimony of Albert to its proper proportions, we do not have enough trustworthy evidence left to go by. We are of the considered opinion, therefore, that the believable evidence on the degree of care and diligence that has been exercised in the selection and supervision of Roberto Leon y Salazar, is not legally sufficient to overcome the presumption of negligence against the defendant company. Whether or not the diligence of a good father of a family has been observe d by petitioner is a matter of proof which under the circumstances in the case at bar has not been clearly established. It is not felt by the Court that there is enough evidence on record as would overturn the presumption of negligence, and for failure to submit all evidence within its control, assuming the putative existence thereof, petitioner MMTC must suffer the consequences of its own inaction and indifference. In any event, we do not find the evidence presented by petitioner sufficiently convincing to prove the diligence of a good father of a family, which for an employer doctrinally translates into its observance of due diligence in the selection and supervision of its employees but which mandate, to use an oft-quoted phrase, is more often honored in the breach than in the observance. Petitioner attempted to essay in detail the company's procedure for screening job applicants and supervising its employees in the field, through the testimonies of Milagros Garbo, as its training officer, and Christian Bautista, as its transport supervisor, both of whom naturally and expectedly testified for MMTC. It then concluded with its sweeping pontifications that "thus, there is no doubt that considering the nature of the business of petitioner, it would not let any applicant-drivers to be (sic) admitted without undergoing the rigid selection and training process with the end (in) view of protecting the public in general and its passengers in particular; . . . thus, there is no doubt that applicant had fully complied with the said requirements otherwise Garbo should not have allowed him to undertake the next set of requirements . . . and the training conducted consisting of seminars and actual driving tests were satisfactory otherwise he should have not been allowed to drive the subject vehicle. These statements strike us as both presumptuous and in the nature of petitio principii, couched in generalities and shorn of any supporting evidence to boost their verity. As earlier observed, respondent court could not but express surprise, and thereby its incredulity, that witness Garbo neither testified nor presented any evidence that driver Leonardo had complied with or had undergone all the clearances and trainings she took pains to recite and enumerate. The supposed clearances, results of seminars and tests which Leonardo allegedly submitted and complied with were never presented in court despite the fact that, if true, then they were obviously in the possession and control of petitioner. The case at bar is clearly within the coverage of Article 2176 and 2177, in relation to Article 2180 provisions on quasi-delicts as all the elements thereof are present, to wit: (1) damages suffered by the plaintiff, (2) fault or negligence of the defendant or some other person for whose act he must respond, and (3) the connection of cause and effect between fault or negligence of the defendant and the damages incurred by plaintiff. It is to be noted that petitioner was originally sued as employer of driver Leonardo under Article 2180, the pertinent parts of which provides that: The basis of the employer's vicarious liability has been explained under this ratiocination: The responsibility imposed by this article arises by virtue of a presumption juris tantum of negligence on the part of the persons made responsible under the article, derived from their failure to exercise due care and vigilance over the acts of subordinates to prevent them from causing damage. Negligence is imputed to them by law, unless they prove the contrary. Thus, the last paragraph of the article says that such responsibility ceases if is proved that the persons who might be held responsible under it exercised the diligence of a good father of a family (diligentissimi patris familias) to prevent damage. It is clear, therefore, that it is not representation, nor interest, nor even the necessity of having somebody else answer for the damages caused by the persons devoid of personality, but it is the non-performance of certain duties of precaution and prudence imposed upon the persons who become responsible by civil bond uniting the actor to them, which forms the foundation of such responsibility. The above rule is, of course, applicable only where there is an employer-employee relationship, although it is not necessary that the employer be engaged in business or industry . Whether or not engaged in any business or industry, the employer under Article 2180 is liable for torts committed by his employees within the scope of their assigned tasks. But, it is necessary first to establish the employment relationship. Once this is done, the plaintiff must show, to hold the employer liable, that the employee was acting within the scope of his assigned task when the tort complained of was committed. It is only then that the defendant, as employer, may find it necessary to interpose the defense of due diligence in the selection and supervision of employees. The diligence of a good father of a family required to be observed by employers to prevent damages under Article 2180 refers to due diligence in the selection and supervision of employees in order to protect the public. With the allegation and subsequent proof of negligence against the defendant driver and of an employer-employee relation between him and his co-defendant MMTC in this instance, the case in undoubtedly based on a quasi-delict under Article 2180 When the employee causes damage due to his own negligence while performing his own duties, there 154 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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Atty. Jess Lopez

arises the juris tantum presumption that the employer is negligent, rebuttable only by proof of observance of the diligence of a good father of a family. For failure to rebut such legal presumption of negligence in the selection and supervision of employees, the employer is likewise responsible for damages, the basis of the liability being the relationship of pater familias or on the employer's own negligence. As early as the case of Gutierrez vs. Gutierrez, and thereafter, we have consistently held that where the injury is due to the concurrent negligence of the drivers of the colliding vehicles , the drivers and owners of the said vehicles shall be primarily, directly and solidarily liable for damages and it is immaterial that one action is based on quasi-delict and the other on culpa contractual, as the solidarily of the obligation is justified by the very nature thereof. . It should be borne in mind that the legal obligation of employers to observe due diligence in the selection and supervision of employees is not to be considered as an empty play of words or a mere formalism, as appears to be the fashion of the times, since the non-observance thereof actually becomes the basis of their vicarious liability under Article 2180. On the matter of selection of employees, Campo vs. Camarote, supra, lays down this admonition: In order that the owner of a vehicle may be considered as having exercised all diligence of a good father of a family, he should not have been satisfied with the mere possession of a professional driver's license; he should have carefully examined the applicant for employment as to his qualifications, his experience and record of service. These steps appellant failed to observe; he has therefore, failed to exercise all due diligence required of a good father of a family in the choice or selection of driver. Due diligence in the supervision of employees, on the other hand, includes the formulation of suitable rules and regulations for the guidance of employees and the issuance of proper instructions intended for the protection of the public and persons with whom the employer has relations through his or its employees and the imposition of necessary disciplinary measures upon employees in case of breach or as may be warranted to ensure the performance of acts indispensable to the business of and beneficial to their employer. To this, we add that actual implementation and monitoring of consistent compliance with said rules should be the constant concern of the employer, acting through dependable supervisors who should regularly report on their supervisory functions. In order that the defense of due diligence in the selection and supervision of employees may be deemed sufficient and plausible, it is not enough to emptily invoke the existence of said company guidelines and policies on hiring and supervision. As the negligence of the employee gives rise to the presumption of negligence on the part of the employer, the latter has the burden of proving that it has been diligent not only in the selection of employees but also in the actual supervision of their work. The mere allegation of the existence of hiring procedures and supervisory policies, without anything more, is decidedly not sufficient to overcome presumption. We emphatically reiterate our holding, as a warning to all employers, that (t)he mere formulation of various company policies on safety without showing that they were being complied with is not sufficient to exempt petitioner from liability arising from negligence of its employees. It is incumbent upon petitioner to show that in recruiting and employing the erring driver the recruitment procedures and company policies on efficiency and safety were followed. Paying lip-service to these injunctions or merely going through the motions of compliance therewith will warrant stern sanctions from the Court. In requiring the highest possible degree of diligence from common carriers and creating a presumption of negligence against them, the law compels them to curb the recklessness of their drivers. While the immediate beneficiaries of the standard of extraordinary diligence are, of course, the passengers and owners of the cargo carried by a common carrier, they are not the only persons that the law seeks to benefit. For if common carriers carefully observe the statutory standard of extraordinary diligence in respect of their own passengers, they cannot help but simultaneously benefit pedestrians and the owners and passengers of other vehicles who are equally entitled to the safe and convenient use of our roads and highways. The law seeks to stop and prevent the slaughter and maiming of people (whether passengers or not) and the destruction of property (whether freight or not) on our highways by buses, the very size and power of which seem often to inflame the minds of their drivers. 13. Filipinas Broadcasting Network, Inc., v. AGO Medical and Educational Center, G.R. 141994, Jan. 17, 2005 Facts: Expose is a radio documentary program hosted by Carmelo Mel Rim a and June Alegre. Its is aired every morning over DZRC-AM which is owned by Filipinas Broadcasting Network, Inc. (FBNI). Rima and Alegre exposed various alleged complaints from students, teachers, and parents against Ago Medical and Educational Center-Bicol Christian College of Medicine (AMEC) and its administrators. Claiming that the broadcasts were defamatory, AMEC and Angelita Ago (Ago), as Dean of AMECs College of Medicine, filed a complaint for damages against FBNI, Rima, and Alegre. AMEC and Ago included FBNI as defendant for allegedly failing to exercise due diligence in the selection and supervision of its employees, particularly Rima and Alegre. Alegre allegedly said: Let us begin with the less burdensome: if you have children taking medical course at AMECBCCM, advise them to pass all subjects because if they fail in any subject they will repeat their year level, taking up all subjects including those they have passed already. xxx Second: Earlier AMEC students in Physical Therapy had 155 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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complained that the course is not recognized by DECS. Third: Students are required to take and pay for the subject even if the subject does not have an instructor such greed for money on the part of AMECs administration. It is a public knowledge that the AMEC has survived and has been surviving for the past few years since its inception because of funds support from foreign foundations. If you will take a look at the AMEC premises youll find out that the names of the buildings there are foreign soundings. There is a McDonald Hall. That is a very concrete and undeniable evidence that the support of foreign foundations for AMEC is substantial, isnt it? On the other hand, the administrators of AMEC- BCCM, AMEC Science High School and the AMEC- Institute of Mass Communication in their effort to minimize expenses in terms of salary are absorbing or continues to accept rejects. (Former teachers of Aquinas University but were removed because of immorality) AMEC is a dumping ground, garbage, not merely of moral and physical misfits. Probably they only qualify in terms of intellect. The Dean of Student Affairs of AMEC is Justita Lola, as the family name implies. She is too old to work, being an old woman. Is the AMEC administration exploiting the very [e]nterprisi ng or compromising and undemanding Lola? While Rima allegedly said: My friends based on the expose, AMEC is a dumping ground for moral and physically misfit people. What does this mean? Immoral and physically misfits as teachers. May I say Im sorry to Dean Justita Lola. But this is the truth. The truth is this, that you are no longer fit to teach. You are too old. As an aviation, your case is zero visibility. Dont insist. Why did AMEC still absorb her as a teacher, a dean, and chairman of the scholarsh ip committee at that. The reason is practical cost saving in salaries because an old person is not fastidious, so long as she has money to buy the ingredient of beetle juice. The elderly can get by thats why she (Lola) was taken in as Dean. On our end our task is to attend to the interests of students. It is likely that the students would be influenced by evil. When they become members of society outside of campus will be liabilities rather than assets. Rima and Alegre, through Atty. Rozil Lozares, filed an Answer alleging that the broadcasts against AMEC were fair and true. FBNI, Rima and Alegre claimed that they were plainly impelled by a sense of public duty to report the goings -on in AMEC, [which is] an institution imbued with public interest. Thereafter, trial ensued. Trial court rendered a Decision finding FBNI and Alegre liable for libel except Rima . In absolving Rima from the charge , the trial court ruled that Rimas only participation was when he agreed with Alegres expose. It found Rimas statement within the bounds of freedom of speech, expression, and of the press. CA affirmed the trial courts judgment with modification. CA made Rima solidarily liable with FBNI and Alegre. CA upheld the trial courts ruling that the questioned broadcasts are libelous per se and that FBNI, Rima and Alegre failed to overcome the legal presumption of malice. Finding no factual basis for the imputations against AMECs administrators, the CA ruled that the broadcasts were made with reckless disregard as to whether they were true or false as it failed to present in court any of the students who allegedly complained against AMEC. Rima and Alegre merely gave a single name when asked to identify the students. According to the CA, these circumstances cast doubt on the veracity of the broadcasters claim that they were impelled by their moral and social duty to inform the public about the students gripes. CA held that FBNI failed to exercise due diligence in the selection and supervision of its employees for allowing Rima and Alegre to make the radio broadcasts without the proper KBP accreditation. Issue: Whether FBNI is solidarily liable with its broadcasters Allegre and Rima Held: YES. A libel is a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act or omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead. There is no question that the broadcasts were made public and imputed to AMEC defects or circumstances tending to cause it dishonor, discredit and contempt. Rima and Alegres remarks such as greed for money on the part of AMECs administrators; AMEC is a dumping ground, garbage of x x x moral and physical misfits; and AMEC students who graduate will be liabilities rather than assets of the society are libelous per se. Taken as a whole, the broadcasts suggest that AMEC is a money-making institution where physically and morally unfit teachers abound. Every defamatory imputation is presumed malicious. Rima and Alegre failed to show adequately their good intention and justifiable motive in airing the supposed gripes of the students. As hosts of a documentary or public affairs program, Rima and Alegre should have presented the public issues free from inaccurate and misleading information. Hear ing the students alleged complaints a month before the expose , they had sufficient time to verify their sources and information. However, Rima and Alegre hardly made a thorough investigation of the students alleged gripes. Neither did they inquire about nor confirm the purported irregularities in AMEC from the DECS. Alegre testified that he merely went to AMEC to verify his report from an alleged AMEC official who refused to disclose any information. Alegre 156 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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simply relied on the words of the students because they were many and not because there is proof that what they are saying is true. There was reckless disregard of whether their report was true or not. The broadcasts were not the result of straight reporting. Significantly, some courts in the US apply the privilege of neutral reportage in libel cases involving matters of public interest or public figures. Under this privilege, a republisher who accurately and disinterestedly reports certain defamatory statements made against public figures is shielded from liability, regardless of the republishers subjective awareness of the truth or falsity of the accusation. Rima and Alegre cannot invoke the privilege of neutral reportage because unfounded comments abound in the broadcasts. Moreover, there is no existing controversy involving AMEC when the broadcasts were made. The privilege of neutral reportage applies where the defamed person is a public figure who is involved in an existing controversy, and a party to that controversy makes the defamatory statement. FBNIs reliance on Borjal is misplaced. In Borjal, the Court elucidated on the doctrine of fair comment, [F]air commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander. When the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. True, AMEC is a private learning institution whose business of educating students is genuinely imbued with public interest. The welfare of the youth in general and AMECs students in particular is a matter which the public has the right to know. Thus, similar to the newspaper articles in Borjal, the subject broadcasts dealt with matters of public interest. However, unlike in Borjal, the questioned broadcasts in the present case are not based on established facts. Defendants have not presented in court, nor even gave name of a single student who made the complaint to them, much less present written complaint or petition to that effect. The broadcasters, contrary to the mandates of their duties, did not verify and analyze the truth of the reports before they aired it, in order to prove that they are in good faith. 1. Alegre contended that plaintiff school had no permit and is not accredited to offer Physical Therapy courses. Yet, plaintiff produced a certificate coming from DECS that as of Sept. 22, 1987 or more than 2 years before the controversial broadcast, accreditation to offer Physical Therapy course had already been given the plaintiff. Defendants could have easily known this were they careful enough to verify. 2. The allegation that plaintiff was getting tremendous aids from foreign foundations like McDonald Foundation prove not to be true also. The truth is there is no McDonald Foundation existing. Although a big building of plaintiff school was given the name McDonald building, that was only in order to honor the first missionary in Bicol of plaintiffs religion. 3. Defendants did not even also bother to prove their claim, though denied by Dra. Ago, that when medical students fail in one subject, they are made to repeat all the other subject[s], even those they have already passed, nor their claim that the school charges laboratory fees even if there are no laboratories in the school. 4. Dr. Lola was observed by this court not to be physically decrepit yet, nor mentally infirmed, but is still alert and docile. Had the comments been an expression of opinion based on established facts, it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts. However, the comments of Rima and Alegre were not backed up by facts. Therefore, the broadcasts are not privileged and remain libelous per se. The broadcasts also violate the Radio Code of the Kapi sanan ng mga Brodkaster sa Pilipinas, Ink. (Radio Code) 4. Public affairs program shall present public issues free from personal bias, prejudice and inaccurate and misleading information. 7. The station shall be responsible at all times in the supervision of public affairs, public issues and commentary programs so that they conform to the provisions and standards of this code. The Radio Code is a voluntary code of conduct imposed by the radio broadcast industry on its own members. The Radio Code is a public warranty by the radio broadcast industry that radio broadcast practitioners are subject to a code by which their conduct are measured for lapses, liability and sanctions. The public has a right to expect and demand that radio broadcast practitioners live up to the code of conduct of their profession, just like other professionals. A professional code of conduct provides the standards for determining whether a person has acted justly, honestly and with good faith in the exercise of his rights and performance of his duties as required by Article 1937 of the Civil Code. A professional code of conduct also provides the standards for determining whether a person who willfully causes loss or injury to another has acted in a manner contrary to morals or good customs under Article 2138 of the Civil Code. III. Whether FBNI is solidarily liable with Rima and Alegre for moral damages, attorneys fees and costs of suit (RELEVANT ISSUE) 157 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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FBNI contends that it is not solidarily liable with Rima and Alegre for the pay ment of damages and attorneys fees because it exercised due diligence in the selection and supervision of its employees, particularly Rima and Alegre. FBNI maintains that its broadcasters, including Rima and Alegre, undergo a very regimented process bef ore they are allowed to go on air. Those who apply for broadcaster are subjected to interviews, examinations and an apprenticeship program. FBNI further argues that Alegres age and lack of training are irrelevant to his competence as a broadcaster. FBNI points out that the minor deficiencies in the KBP accreditation of Rima and Alegre do not in any way prove that FBNI did not exercise the diligence of a good father of a family in selecting and supervising them. Rimas accreditation lapsed due to his non-payment of the KBP annual fees while Alegres accreditation card was delayed allegedly for reasons attributable to the KBP Manila Office. FBNI claims that membership in the KBP is merely voluntary and not required by any law or government regulation. FBNIs arguments do not persuade us. The basis of the present action is a tort. Joint tortfeasors are jointly and severally liable for the tort which they commit. Joint tortfeasors are all the persons who command, instigate, promote, encourage, advise, countenance, cooperate in, aid or abet the commission of a tort, or who approve of it after it is done, if done for their benefit. Thus, AMEC correctly anchored its cause of action against FBNI on Articles 2176 and 2180. As operator of DZRC-AM and employer of Rima and Alegre, FBNI is solidarily liable to pay for damages arising from the libelous broadcasts. As stated by the CA, recovery for defamatory statements published by radio or television may be had from the owner of the station, a licensee, the operator of the station, or a person who procures, or participates in, the making of the defamatory statements. An employer and employee are solidarily liable for a defamatory statement by the employee within the course and scope of his or her employment, at least when the employer authorizes or ratifies the defamation . In this case , Rima and Alegre were clearly performing their official duties as hosts of FBNIs radio program Expose when they aired the broadcasts. FBNI neither alleged nor proved that Rima and Alegre went beyond the scope of their work at that time. There was likewise no showing that FBNI did not authorize and ratify the defamatory broadcasts . Moreover, there is insufficient evidence on record that FBNI exercised due diligence in the selection and supervision of its employees, particularly Rima and Alegre. FBNI merely showed that it exercised diligence in the selection of its broadcasters without introducing any evidence to prove that it observed the same diligence in the supervision of Rima and Alegre. FBNI did not show how it exercised diligence in supervising its broadcasters. FBNIs alleged constant reminder to its broadcasters to observe truth, fairness and objectivity and to refrain from using libelous and indecent language is not enough to prove due diligence in the supervision of its broadcasters. The following are ways of showing diligence in the supervision of broadcasters : (1) Adequate training of the broadcasters on the industrys code of conduct; (2) Sufficient information on libel laws; and (3) Continuous evaluation of the broadcasters performance. No clear and convincing evidence shows that Rima and Alegre underwent FBNIs regimented process of application. Furthermore, FBNI admits that Rima and Alegre had deficiencies in their KBP accreditation, which is one of FBNIs requirements before it hires a broadcaster. Significantly, membership in the KBP, while voluntary, indicates the broadcasters strong commitment to observe the broadcast industrys rules and regulations. Clearly, these circ umstances show FBNIs lack of diligence in selecting and supervising Rima and Alegre. Hence, FBNI is solidarily liable to pay damages together with Rima and Alegre. 14. Jayme v. Apostol, G.R. No. 163609, November 27, 2008 Facts: Mayor Miguel of Koronadal, South Cotabato was on board the Isuzu pick-up truck driven by Fidel Lozano, an employee of the Municipality of Koronadal. The pick-up truck was registered under the name of Rodrigo Apostol, but it was then in the possession of Ernesto Simbulan. Lozano borrowed the pick-up truck from Simbulan to bring Miguel to Buayan Airport at General Santos City to catch his Manila flight. The pick-up truck accidentally hit Marvin C. Jayme, a minor, who was then crossing the National Highway. The collision sent Marvin some 50 meters away from the point of impact, a clear indication that Lozano was driving at a very high speed at the time of the accident. He sustained severe head injuries with subdural hematoma and diffused cerebral contusion and had to be airlifted to Davao for more intensive treatment. He died after 6 days. Parents of Marvin, filed a complaint for damages with the RTC against respondents. They prayed that all respondents be held solidarily liable for their loss. All respondents denied liability for Mar vins death. Apostol and Simbulan averred that Lozano took the pick-up truck without their consent. Likewise, Miguel and Lozano pointed out that Marvins sudden sprint across the highway made it impossible to avoid the accident. Yet, Miguel denied being on board the vehicle when it hit Marvin. Defendant Municipality of Koronadal cannot be held liable for the damages incurred by other defendants (being an agency of the State performing governmental functions). 158 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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Trial court held Fidel Lozano, Rodrigo Apostol, and Mayor Fernando Miguel jointly and severally liable. Mayor Miguel interposed an appeal to the CA. Ma yor Miguel contended that the RTC erred in ruling that he was Lozanos employer and, hence, solidarily liable for the latters negligent act. Mayor Miguel also denied that he did not exercise due care and diligence in the supervision of Lozano. CA held that Mayor Miguel should not be held liable for damages for the death of Marvin Jayme. CA also reiterated the settled rule that it is the registered owner of a vehicle who is jointly and severally liable with the driver for damages incurred by passengers or third persons as a consequence of injuries or death sustained in the operation of the vehicle. Hence, this petition. According to Jayme, the element of direct control is not negated by the fact that Lozanos employer was the Municipality of Koronadal. Mayor Miguel, being Lozanos superior, still had control over the manner the vehicle was operated. Issue: Whether the mayor should be held vicariously liable Held: NO. Employer is the MUNICIPALITY. The doctrine of vicarious liability or imputed liability finds no application in the present case. To sustain claims against employers for the acts of their employees, the following requisites must be established: (1) That the employee was chosen by the employer personally or through another; (2) That the service to be rendered in accordance with orders which the employer has the authority to give at all times; and (3) That the illicit act of the employee was on the occasion or by reason of the functions entrusted to him. To make the employee liable under paragraphs 5 and 6 of Article 2180, it must be established that the injurious or tortuous act was committed at the time the employee was performing his functions . The employer-employee relationship cannot be assumed. It is incumbent upon the plaintiff to prove the relationship by preponderant evidence. To determine the existence of an employment relationship, we rely on the four-fold test: (1) the employers power of selection; (2) payment of wages or other remuneration; (3) the employers right to control the method of doing the work; and (4) the employers right of suspension or dismissal. CA correctly held that it was the Municipality which was the lawful employer of Lozano at the time of the accident. It is uncontested that Lozano was employed as a driver by the municipality. That he was subsequently assigned to Mayor Miguel during the time of the accident is of no moment. Municipality remains to be Lozanos employer notwithstanding Lozanos assignment to Mayor Miguel. This Court has, on several occasions, held that an employer-employee relationship still exists even if the employee was loaned by the employer to another person or entity because control over the employee subsists. Spouses Jayme argued that Mayor Miguel had at least supervision and control over Lozano and how the latter operated or drove the Isuzu pick-up during the time of the accident. They, however, failed to buttress this claim. Even assuming arguendo that Mayor Miguel had authority to give instructions or directions to Lozano, he still can not be held liable. In Benson v. Sorrell, the New England Supreme Court ruled that mere giving of directions to the driver does not establish that the passenger has control over the vehicle. Neither does it render one the employer of the driver. Moreover, no negligence may be imputed against a fellow employee although the person may have the right to control the manner of the vehicles operation. In the absence of an employer-employee relationship establishing vicarious liability, the drivers negligence should not be attributed to a fellow employee who only happens to be an occupant of the vehicle. Whatever right of control the occupant may have over the driver is not sufficient by itself to justify an application of the doctrine of vicarious liability. Handley v. Lombardi is instructive on this exception to the rule on vicarious liability: In the case of actionable negligence, the rule is well-settled both in this state and elsewhere that the negligence of a subordinate employee or subagent is not to be imputed to a superior employee or agent, but only to the master or principal. In Swanson v. McQuown, Supreme Court adhered to the general rule that a public official is not liable for the wrongful acts of his subordinates on a vicarious basis since the relationship is not a true master-servant situation. The court went on to rule that the only exception is when they cooperate in the act complained of, or direct or encourage it. Mayor Miguel was neither Lozanos employer nor the vehicles registered owner. There existed no causal relationship between him and Lozano or the vehicle used that will make him accountable for Marvins death. Ma yor Miguel was a mere passenger at the time of the accident. The failure of a passenger to assist the driver, by providing him warnings or by serving as lookout does not make the passenger liable for the latters negligent acts. The drivers duty is not one that may be delegated to others. 159 Agas, Anzures, Buan, Cusi, Navarrete, Ongchuan, Reposo, & Roco 3B

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The true and lawful employer of Lozano is the Municipality. Unfortunately for Spouses Jayme, the municipality may not be sued because it is an agency of the State engaged in governmental functions and, hence, immune from suit. It has already been remarked that municipal corporations are suable because their charters grant them the competence to sue and be sued. Nevertheless, they are generally not liable for torts committed by them in the discharge of governmental functions and can only be held answerable only if it can be shown that they were actin