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III NEGLIGENCE
B. DEGREES OF NEGLIGENCE
CIVIL CODE
Art. 2231. n quasi-delicts, exemplary damages may be
granted if the defendant acted with gross negligence.

MARINDUQUE IRON MINES AGENTS V WORKMEN'S
COMPENSATION COMMISSION
99 PHL 48 BENGZON; June 30, 1956
NATURE
Petition for review on certiorari of a decision of the WCC
FACTS
- A truck driven by Procopio Macunat, belonging to
Marinduque, turned over and hit a coconut tree resulting in the
death of Pedro Mamador and injury to the other laborers.
- Macunat was prosecuted, convicted and was sentenced to
indemnify the heirs of the deceased. He has paid nothing,
however, to the latter.
- Deceased's wife now seeks compensation by Marinduque as
the employer.
ISSUE
1. WON Mamador has a right to compensation by Marinduque
2. WON there was notorious negligence by the deceased for
having violated the employer's prohibition to ride haulage
trucks
HELD
1. YES
- Petitioner alleges that the criminal case sentencing Macunat
to indemnify the heirs of the deceased was a suit for damages
against a third person, thereby having the effect of releasing
the employer from liability.
- The criminal case, however, was not a suit for damages
against third persons because the heirs did not intervene
therein and they have not received the indemnity ordered by
the court.
- At any rate, even if the case was against a third person, the
court already decided in Nava vs. nchausti that criminal
prosection of the "other person" does not affect the liability of
the employer.
- Petitioner also contends that the amicable settlement entered
into by Mamador's widow and Macunat barred the widow's
claim against the employer because she has already elected
one of the remedies.
- This contention cannot be sustained because what the widow
waived was the offender's criminal proscution and not all civil
action for damages.
2. NO
- Mere riding on a haulage truck or stealing a ride thereon is
not negligence, ordinarily. t couldn't be, because
transportation by truck is not dangerous per se.
- Although the employer prohibited its employees to ride the
haulage trucks, its violation does not constitute negligence per
se, but it may be an evidence of negligence.
- Under the circumstance, however, it cannot be declared
negligence because the proibition had nothing to do with the
personal safety of the riders.
- Notorious negligence means the same as gross negligence
which implies "conscious indifferenece to consequences",
"pursuing a course of conduct which would naturally and
probably result in injury".
Disposition Award for compensation by WCC affirmed








C. PROOF OF NEGLIGENCE
1. BURDEN OF PROOF
RULES OF COURT
RULE 131 Burden of Proof and Presumptions
Section 1. Burden of proof. Burden of proof is the duty of a party to
present evidence on the facts in issue necessary to establish his claim
or defense by the amount of evidence required by law. (1a, 2a)
Section 2. onclusive presumptions. The following are instances of
conclusive presumptions:
(a) Whenever a party has, by his own declaration, act, or
omission, intentionally and deliberately led to another to
believe a particular thing true, and to act upon such belief, he
cannot, in any litigation arising out of such declaration, act or
omission, be permitted to falsify it:
(b) The tenant is not permitted to deny the title of his landlord
at the time of commencement of the relation of landlord and
tenant between them. (3a)
Section 3. isputable presumptions. The following presumptions
are satisfactory if uncontradicted, but may be contradicted and
overcome by other evidence:
(a) That a person is innocent of crime or wrong;
(b) That an unlawful act was done with an unlawful intent;
(c) That a person intends the ordinary consequences of his
voluntary act;
(d) That a person takes ordinary care of his concerns;
(e) That evidence willfully suppressed would be adverse if
produced;
(f) That money paid by one to another was due to the latter;
(g) That a thing delivered by one to another belonged to the
latter;
(h) That an obligation delivered up to the debtor has been
paid;
(i) That prior rents or installments had been paid when a
receipt for the later one is produced;
(j) That a person found in possession of a thing taken in the
doing of a recent wrongful act is the taker and the doer of the
whole act; otherwise, that things which a person possess, or
exercises acts of ownership over, are owned by him;
(k) That a person in possession of an order on himself for the
payment of the money, or the delivery of anything, has paid
the money or delivered the thing accordingly;
(l) That a person acting in a public office was regularly
appointed or elected to it;
(m) That official duty has been regularly performed;
(n) That a court, or judge acting as such, whether in the
Philippines or elsewhere, was acting in the lawful exercise of
jurisdiction;
(o) That all the matters within an issue raised in a case were
laid before the court and passed upon by it; and in like
manner that all matters within an issue raised in a dispute
submitted for arbitration were laid before the arbitrators and
passed upon by them;
(p) That private transactions have been fair and regular;
(q) That the ordinary course of business has been followed;
(r) That there was a sufficient consideration for a contract;
(s) That a negotiable instrument was given or indorsed for a
sufficient consideration;
(t) That an endorsement of negotiable instrument was made
before the instrument was overdue and at the place where
the instrument is dated;
(u) That a writing is truly dated;
(v) That a letter duly directed and mailed was received in the
regular course of the mail;
(w) That after an absence of seven years, it being unknown
whether or not the absentee still lives, he is considered dead
for all purposes, except for those of succession.
The absentee shall not be considered dead for the purpose of opening
his succession till after an absence of ten years. f he disappeared after
the age of seventy-five years, an absence of five years shall be
sufficient in order that his succession may be opened.
The following shall be considered dead for all purposes including the
division of the estate among the heirs:
(1) A person on board a vessel lost during a sea
voyage, or an aircraft with is missing, who has not
been heard of for four years since the loss of the
vessel or aircraft;

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(2) A member of the armed forces who has taken

part in armed hostilities, and has been missing for
four years;
(3) A person who has been in danger of death
under other circumstances and whose existence
has not been known for four years;
(4) f a married person has been absent for four
consecutive years, the spouse present may
contract a subsequent marriage if he or she has
well-founded belief that the absent spouse is
already death. n case of disappearance, where
there is a danger of death the circumstances
hereinabove provided, an absence of only two
years shall be sufficient for the purpose of
contracting a subsequent marriage. However, in
any case, before marrying again, the spouse
present must institute a summary proceedings as
provided in the Family Code and in the rules for
declaration of presumptive death of the absentee,
without prejudice to the effect of reappearance of
the absent spouse.
(x) That acquiescence resulted from a belief that the thing
acquiesced in was conformable to the law or fact;
(y) That things have happened according to the ordinary
course of nature and ordinary nature habits of life;
(z) That persons acting as copartners have entered into a
contract of copartneship;
(aa) That a man and woman deporting themselves as
husband and wife have entered into a lawful contract of
marriage;
(bb) That property acquired by a man and a woman who are
capacitated to marry each other and who live exclusively
with each other as husband and wife without the benefit of
marriage or under void marriage, has been obtained by their
joint efforts, work or industry.
(cc) That in cases of cohabitation by a man and a woman
who are not capacitated to marry each other and who have
acquire properly through their actual joint contribution of
money, property or industry, such contributions and their
corresponding shares including joint deposits of money and
evidences of credit are equal.
(dd) That if the marriage is terminated and the mother
contracted another marriage within three hundred days after
such termination of the former marriage, these rules shall
govern in the absence of proof to the contrary:
(1) A child born before one hundred eighty days
after the solemnization of the subsequent marriage
is considered to have been conceived during such
marriage, even though it be born within the three
hundred days after the termination of the former
marriage.
(2) A child born after one hundred eighty days
following the celebration of the subsequent
marriage is considered to have been conceived
during such marriage, even though it be born
within the three hundred days after the termination
of the former marriage.
(ee) That a thing once proved to exist continues as long as is
usual with things of the nature;
(ff) That the law has been obeyed;
(gg) That a printed or published book, purporting to be
printed or published by public authority, was so printed or
published;
(hh) That a printed or published book, purporting contain
reports of cases adjudged in tribunals of the country where
the book is published, contains correct reports of such
cases;
(ii) That a trustee or other person whose duty it was to
convey real property to a particular person has actually
conveyed it to him when such presumption is necessary to
perfect the title of such person or his successor in interest;
(jj) That except for purposes of succession, when two
persons perish in the same calamity, such as wreck, battle,
or conflagration, and it is not shown who died first, and there
are no particular circumstances from which it can be inferred,
the survivorship is determined from the probabilities resulting
from the strength and the age of the sexes, according to the
following rules:
1. f both were under the age of fifteen years, the
older is deemed to have survived;
2. f both were above the age sixty, the younger is
deemed to have survived;
3. f one is under fifteen and the other above sixty,
the former is deemed to have survived;
4. f both be over fifteen and under sixty, and the
sex be different, the male is deemed to have
survived, if the sex be the same, the older;
5. f one be under fifteen or over sixty, and the
other between those ages, the latter is deemed to
have survived.
(kk) That if there is a doubt, as between two or more persons
who are called to succeed each other, as to which of them
died first, whoever alleges the death of one prior to the other,
shall prove the same; in the absence of proof, they shall be
considered to have died at the same time. (5a)
Section 4. o presumption of legitimacy or illegitimacy. There is no
presumption of legitimacy of a child born after three hundred days
following the dissolution of the marriage or the separation of the
spouses. Whoever alleges the legitimacy or illegitimacy of such child
must prove his allegation. (6)


2. PRESUMPTION
CIVIL CODE
Art. 2184. n 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. t is disputably presumed that a driver was
negligent, if he had been found guilty or reckless driving or
violating traffic regulations at least twice within the next
preceding two months.
f the owner was not in the motor vehicle, the provisions of
Article 2180 are applicable. (n)
Art. 2185. Unless there is proof to the contrary, it is presumed
that a person driving a motor vehicle has been negligent if at
the time of the mishap, he was violating any traffic regulation. (
Art. 2188. There is prima facie presumption of negligence on
the part of the defendant if the death or injury results from his
possession of dangerous weapons or substances, such as
firearms and poison, except when the possession or use
thereof is indispensable in his occupation or business. (n)
Art. 1734. Common carriers are responsible for the loss,
destruction, or deterioration of the goods, unless the same is
due to any of the following causes only:
(1) Flood, storm, earthquake, lightning, or other
natural disaster or calamity;
(2) Act of the public enemy in war, whether
international or civil;
(3) Act of omission of the shipper or owner of the
goods;
(4) The character of the goods or defects in the
packing or in the containers;
(5) Order or act of competent public authority.
Art. 1735. n all cases other than those mentioned in Nos. 1, 2,
3, 4, and 5 of the preceding article, if the goods are lost,
destroyed or deteriorated, common carriers are presumed to
have been at fault or to have acted negligently, unless they
prove that they observed extraordinary diligence as required in
Article 1733.

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RES IPSA LOQUITUR

LAYUGAN V IAC
167 SCRA 363 SARMENTO; November 14, 1968
NATURE: Petition for review on certiorari of AC decision
FACTS
- Plaintiff Pedro Layugan testified that while in Bagabag, Nueva
Vizcaya, he and a companion were repairing the tire of their
cargo truck which was parked along the right side of the
National Highway. Defendant's truck driven recklessly by
Daniel Serrano bumped the plaintiff, that as a result, plaintiff
was injured and hospitalized. Due to said injuries, his left leg
was amputated so he had to use crutches to walk.
- Defendant Godofredo sidro admitted his ownership of the
vehicle involved in the accident driven by Daniel Serrano.
Defendant said that the plaintiff was merely a bystander, not a
truck helper being a brother-in-law law of the driver of said
truck; that the truck allegedly being repaired was parked,
occupying almost half of the right lane towards Solano, Nueva
Vizcaya, right after the curve; that the proximate cause of the
incident was the failure of the driver of the parked truck in
installing the early warning device,
- Daniel Serrano, defendant driver, said that he knew the
responsibilities of a driver; that before leaving, he checked the
truck. The truck owner used to instruct him to be careful in
driving. He bumped the truck being repaired by Pedro
Layugan, plaintiff, while the same was at a stop position. From
the evidence presented, it has been established clearly that the
injuries sustained by the plaintiff was caused by defendant's
driver, Daniel Serrano. Serrano also testified that, "When was
a few meters away, saw the truck which was loaded with
round logs. stepped on my foot brakes but it did not function
with my many attempts. have (sic) found out later that the
fluid pipe on the rear right was cut that's why the breaks did not
function.
- Plaintiff points to the negligence of the defendant driver while
sidro points to the driver of parked truck as negligent, and
says that absent such proof of care, it would, under the
doctrine of res ipsa loquitur, evoke the presumption of
negligence on the part of the driver of the parked cargo truck
as well as his helper, the petitioner herein, who was fixing the
flat tire of the said truck.
ISSUES
1. WON defendant driver Serrano was negligent
2. WON the doctrine of res ipsa loquitur applies in this case
HELD
1 NO
- (Procedural) Ratio Findings of fact are entitled to great
respect and will not ordinarily be disturbed by this Court unless
it falls down under the exceptions provided by the Court to
merit review of the facts.
Reasoning
- This is a question of fact. But this case is an exception since:
1) the finding are grounded entirely on speculation, surmise, or
conjecture; 2) the inference made is manifestly mistaken, 3)
the judgment is based on misapprehension of facts; 4) CA
findings are contrary to those of the trial court; 5) the said
findings of fact are conclusions without citation of specific
evidence on which they are based; and 6) when the findings of
fact of the Court of Appeals are premised on the absence of
evidence and are contradicted on record. Hence, SC
entertained review of the factual question.
- (Substantive) Ratio 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 f not,
then he is guilty of negligence.


Reasoning
[1] egligence defined. Negligence is the omission to do
something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of human
affairs, would do, or the doing of something which a prudent
and reasonable man would not do
[2] Applying the definition and the test, it is clear that the
absence or want of care of Daniel Serrano has been
established by clear and convincing evidence. Whether cargo
truck was parked along the road or on half the shoulder of the
road is immaterial taking into account the warning device
consisting of the lighted kerosene lamp placed 3-4m from the
back of the truck. But despite this warning, the suzu truck
driven by Serrano, still bumped the rear of the parked cargo
truck. As a direct consequence of such accident Layugan
sustained injuries on his left forearm and left foot.
2. NO
Note that for our purposes this was not raised as an issue in
this case. Therefore this only Obiter Dicta. But as far as we're
concerned and relevant to our discussion in the outline,
formulated it in an issue-type. This is what the Court actually
said in the case to prove its just obiter, and its relevant to the
main issue on negligence: "At this juncture, it may be
enlightening and helpful in the proper resolution of the issue of
negligence to examine the doctrine of Res ipsa loquitur. "
Obiter
[1] What is the doctrine of Res psa Loquitur 2 ways to put it:
(a) This doctrine is stated thus: "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, and
(b) According to Black's Law dictionary, "#es ipsa loquitur. The
thing speaks for itself Rebuttable presumption or inference that
defendant was negligent, which arises upon proof that
instrumentality causing injury was in defendant's exclusive
control, and that the accident was one which ordinarily does
not happen in absence of negligence. Res ipsa loquitur is rule
of evidence whereby negligence of alleged wrongdoer may be
inferred from mere fact that accident happened provided
character of accident and circumstances attending it lead
reasonably to belief that in absence of negligence it would not
have occurred and that thing which caused injury is shown to
have been under management and control of alleged
wrongdoer.
[2] n our jurisdiction, and the way we apply it in cases,
particularly in the law of negligence: #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
doctrine 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.
So, it is inapplicable where plaintiff has knowledge and testifies
or presents evidence as to the specific act of negligence which
is the cause of the injury, or where there's direct evidence as to
the precise cause of the accident and all the facts and
circumstances attendant on the occurrence clearly appear. And
once the actual cause of injury is established beyond
controversy, no presumptions will be involved and the doctrine
becomes inapplicable when the circumstances show that no
inference of defendant's liability can reasonably be made,
whatever the source of the evidence.

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n this case it is inapplicable because it was established by

clear and convincing evidence the negligence of the defendant
driver.
Disposition Petition GRANTED with costs against private
respondents.

RAMOS V CA
321 SCRA 584 KAPUNAN; December 29, 1999
NATURE: Petition For Certiorari
FACTS
- n the case at bar, the Court is called upon to rule whether a
surgeon, an anesthesiologist and a hospital should be made
liable for the unfortunate comatose condition of a patient
scheduled for cholecystectomy.
- Plaintiff Erlinda Ramos was a robust woman except for
occasional complaints of discomfort due to pains allegedly
caused by the presence of a stone in her gall bladder she was
as normal as any other woman. Because the discomforts
somehow interfered with her normal ways, she sought
professional advice. She was advised to undergo an operation
for the removal of a stone in her gall bladdershe underwent a
series of examinations which included blood and urine tests
which indicated she was fit for surgery. She and her husband
Rogelio met for the first time Dr. Orlino Hozaka, one of the
defendants in this case, on June 10, 1985. They agreed that
their date at the operating table at the De Los Santos Medical
Center, would be on June 17, 1985 at 9:00 A.M.. Dr. Hosaka
decided that she should undergo a "cholecystectomy
operation after examining the documents presented to him.
Rogelio E. Ramos, however, asked Dr. Hosaka to look for a
good anesthesiologist. Dr. Hosaka, in turn, assured Rogelio
that he will get a good anesthesiologist. She was admitted in
the hospital and was with her sister-in-law, Herminda Cruz,
who was the Dean of the College of Nursing at the Capitol
Medical Center, was also there for moral support. After
praying, she was given injections. At the operating room,
Herminda saw about two or three nurses and Dr. Perfecta
Gutierrez, the other defendant, who was to administer
anesthesia. Although not a member of the hospital staff,
Herminda introduced herself as Dean of the College of Nursing
at the Capitol Medical Center who was to provide moral
support to the patient, to them. Herminda was allowed to stay
inside the operating room.
- Hours later at about 12:15 P.M., Herminda Cruz, who was
inside the operating room with the patient, heard somebody
say that "Dr. Hosaka is already here. She then saw people
inside the operating room "moving, doing this and that, [and]
preparing the patient for the operation. As she held the hand
of Erlinda Ramos, she then saw Dr. Gutierrez intubating the
hapless patient. She thereafter heard Dr. Gutierrez say, "ang
hirap ma-intubate nito, mali yata ang pagkakapasok. O
lumalaki ang tiyan (id., p. 17). Because of the remarks of Dra.
Gutierrez, she focused her attention on what Dr. Gutierrez was
doing. She thereafter noticed bluish discoloration of the
nailbeds of the left hand of the hapless Erlinda even as Dr.
Hosaka approached her. She then heard Dr. Hosaka issue an
order for someone to call Dr. Calderon, another
anesthesiologist. After Dr. Calderon arrived at the operating
room, she saw this anesthesiologist trying to intubate the
patient. The patient's nailbed became bluish and the patient
was placed in a trendelenburg position. mmediately thereafter,
she went out of the operating room, and she told Rogelio E.
Ramos "that something wrong was x x x happening. Dr.
Calderon was then able to intubate the patient.
- Herminda Cruz immediately rushed back, and saw that the
patient was still in trendelenburg position. At almost 3:00 P.M.
of that fateful day, she saw the patient taken to the ntensive
Care Unit (CU).
- Doctors Gutierrez and Hosaka were also asked by the
hospital to explain what happened to the patient. The doctors
explained that the patient had bronchospasm. Erlinda Ramos
stayed for about four months in the hospital, she incurred
hospital bills amounting to P93,542.25. She has been in a
comatose condition. After being discharged from the hospital,
she has been staying in their residence, still needing constant
medical attention, with her husband Rogelio incurring a
monthly expense ranging from P8,000.00 to P10,000.00. She
was also diagnosed to be suffering from "diffuse cerebral
parenchymal damage.
- Petitioners filed a civil case for damages with the Regional
Trial Court of Quezon City against herein private respondents
alleging negligence in the management and care of Erlinda
Ramos.
- During the trial, both parties presented evidence as to the
possible cause of Erlinda's injury. Plaintiff presented the
testimonies of Dean Herminda Cruz and Dr. Mariano Gavino to
prove that the damage sustained by Erlinda was due to lack of
oxygen in her brain caused by the faulty management of her
airway by private respondents during the anesthesia phase.
On the other hand, private respondents primarily relied on the
expert testimony of Dr. Eduardo Jamora, a pulmonologist, to
the effect that the cause of brain damage was Erlinda's allergic
reaction to the anesthetic agent, Thiopental Sodium
(Pentothal).
- Regional Trial Court rendered judgment in favor of petitioners.
Court of Appeals reversed.
- The decision of the Court of Appeals was received on 9 June
1995 by petitioner Rogelio Ramos who was mistakenly
addressed as "Atty. Rogelio Ramos. No copy of the decision,
however, was sent nor received by the Coronel Law Office,
then counsel on record of petitioners. Rogelio referred the
decision of the appellate court to a new lawyer, Atty. Ligsay,
only on 20 June 1995, or four (4) days before the expiration of
the reglementary period for filing a motion for reconsideration.
On the same day, Atty. Ligsay, filed with the appellate court a
motion for extension of time to file a motion for reconsideration.
The motion for reconsideration was submitted on 4 July 1995.
However, the appellate court denied the motion for extension
of time in its Resolution dated 25 July 1995. Meanwhile
petitioners engaged the services of another counsel, Atty.
Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 August
1995 a motion to admit the motion for reconsideration
contending that the period to file the appropriate pleading on
the assailed decision had not yet commenced to run as the
Division Clerk of Court of the Court of Appeals had not yet
served a copy thereof to the counsel on record. Despite this
explanation, the appellate court still denied the motion to admit
the motion for reconsideration of petitioners in its Resolution,
dated 29 March 1996, primarily on the ground that the fifteen-
day (15) period for filing a motion for reconsideration had
already expired.
- A copy of the above resolution was received by Atty. Sillano
on 11 April 1996. The next day, or on 12 April 1996, Atty.
Sillano filed before this Court a motion for extension of time to
file the present petition for certiorari under Rule 45. The Court
granted the motion for extension of time and gave petitioners
additional thirty (30) days after the expiration of the fifteen-day
(15) period counted from the receipt of the resolution of the
Court of Appeals within which to submit the petition. The due
date fell on 27 May 1996. The petition was filed on 9 May
1996, well within the extended period given by the Court.
ISSUES
1. WON it should be dismissed for being filed later than
allowable 15 day period for the filing of the Motion for
Reconsideration
2. WON the doctrine of res ipsa loquitur is applicable
3. WON the Court of Appeals erred in finding that private
respondents were not negligent in the care of Erlinda during

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the anesthesia phase of the operation and, if in the affirmative,

whether the alleged negligence was the proximate cause of
Erlinda's comatose condition. Corollary thereto, we shall also
determine if the Court of Appeals erred in relying on the
testimonies of the witnesses for the private respondents
4. What is the cost for the damages
HELD
1. NO
- A careful review of the records reveals that the reason behind
the delay in filing the motion for reconsideration is attributable
to the fact that the decision of the Court of Appeals was not
sent to then counsel on record of petitioners, the Coronel Law
Office. n fact, a copy of the decision of the appellate court was
instead sent to and received by petitioner Rogelio Ramos on 9
June 1995 wherein he was mistakenly addressed as Atty.
Rogelio Ramos. Based on the other communications received
by petitioner Rogelio Ramos, the appellate court apparently
mistook him for the counsel on record. Thus, no copy of the
decision of the appellate court was furnished to the counsel on
record. Petitioner, not being a lawyer and unaware of the
prescriptive period for filing a motion for reconsideration,
referred the same to a legal counsel only on 20 June 1995.
- t is elementary that when a party is represented by counsel,
all notices should be sent to the party's lawyer at his given
address. With a few exceptions, notice to a litigant without
notice to his counsel on record is no notice at all. n the
present case, since a copy of the decision of the appellate
court was not sent to the counsel on record of petitioner, there
can be no sufficient notice to speak of. Hence, the delay in the
filing of the motion for reconsideration cannot be taken against
petitioner. Moreover, since the Court of Appeals already
issued a second Resolution, dated 29 March 1996, which
superseded the earlier resolution issued on 25 July 1995, and
denied the motion for reconsideration of petitioner, we believe
that the receipt of the former should be considered in
determining the timeliness of the filing of the present petition.
Based on this, the petition before us was submitted on time.
2. YES
- We find the doctrine of res ipsa loquitur appropriate in the
case at bar. As will hereinafter be explained, the damage
sustained by Erlinda in her brain prior to a scheduled gall
bladder operation presents a case for the application of res
ipsa loquitur.
- Considering that a sound and unaffected member of the body
(the brain) is injured or destroyed while the patient is
unconscious and under the immediate and exclusive control of
the physicians, we hold that a practical administration of justice
dictates the application of res ipsa loquitur. 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.
- Nonetheless, in holding that res ipsa loquitur is available to
the present case we are not saying that the doctrine is
applicable in any and all cases where injury occurs to a patient
while under anesthesia, or to any and all anesthesia cases.
Each case must be viewed in its own light and scrutinized in
order to be within the res ipsa loquitur coverage.
- #es 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 facie case, 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.
- The doctrine of res ipsa loquitur 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. t is grounded in the superior logic of ordinary
human experience and on the basis of such experience or
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.
nstead, it is considered as merely evidentiary or in the nature
of a procedural rule. t is regarded as a mode of proof, or a
mere procedural convenience since it furnishes a substitute for,
and relieves a plaintiff of, the burden of producing specific proof
of negligence. n other words, mere invocation and application
of the doctrine does not dispense with the requirement of proof
of negligence. t 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. t 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.
- n the above requisites, the fundamental element is the
"control of the instrumentality which caused the damage. Such
element of control must be shown to be within the dominion of
the defendant. n 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.
- n 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. Where common knowledge and
experience teach that a resulting injury would not have
occurred to the patient if due care had been exercised, an
inference of negligence may be drawn giving rise to an
application of the doctrine of res ipsa loquitur without medical
evidence, which is ordinarily required to show not only what
occurred but how and why it occurred. When the doctrine is
appropriate, all that the patient must do is prove a nexus
between the particular act or omission complained of and the
injury sustained while under the custody and management of
the defendant without need to produce expert medical
testimony to establish the standard of care. Resort to res ipsa
loquitur is allowed because there is no other way, under usual

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and ordinary conditions, by which the patient can obtain

redress for injury suffered by him.
- t 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. #es ipsa loquitur is not a rigid or ordinary doctrine
to be perfunctorily used but a rule to be cautiously applied,
depending upon the circumstances of each case. t 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. t 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. The real question, therefore, is whether or not in
the process of the operation any extraordinary incident or
unusual event outside of the routine performance occurred
which is beyond the regular scope of customary professional
activity in such operations, which, if unexplained would
themselves reasonably speak to the average man as the
negligent cause or causes of the untoward consequence. f
there was such extraneous interventions, the doctrine of res
ipsa loquitur may be utilized and the defendant is called upon
to explain the matter, by evidence of exculpation, if he could.
3. YES
- The CA commited a reversible error. Private respondents
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.
- Dra. Gutierrez failed to properly intubate the patient. n the
case at bar, respondent Dra. Gutierrez admitted that she saw
Erlinda for the first time on the day of the operation itself, on 17
June 1985. Before this date, no prior consultations with, or
pre-operative evaluation of Erlinda was done by her. Until the
day of the operation, respondent Dra. Gutierrez was unaware
of the physiological make-up and needs of Erlinda. She was
likewise not properly informed of the possible difficulties she
would face during the administration of anesthesia to Erlinda.
Respondent Dra. Gutierrez' act of seeing her patient for the
first time only an hour before the scheduled operative
procedure was, therefore, an act of exceptional negligence and
professional irresponsibility. The measures cautioning
prudence and vigilance in dealing with human lives lie at the
core of the physician's centuries-old Hippocratic Oath. Her
failure to follow this medical procedure is, therefore, a clear
indicia of her negligence.
- Private respondents repeatedly hammered the view that the
cerebral anoxia which led to Erlinda's coma was due to
bronchospasm

mediated by her allergic response to the drug,
Thiopental Sodium, introduced into her system. Towards this
end, they presented Dr. Jamora, a Fellow of the Philippine
College of Physicians and Diplomate of the Philippine Specialty
Board of nternal Medicine, who advanced private respondents'
theory that the oxygen deprivation which led to anoxic
encephalopathy, was due to an unpredictable drug reaction to
the short-acting barbiturate. We find the theory of private
respondents unacceptable.
- First of all, Dr. Jamora cannot be considered an authority in
the field of anesthesiology simply because he is not an
anesthesiologist. Since Dr. Jamora is a pulmonologist, he
could not have been capable of properly enlightening the court
about anesthesia practice and procedure and their
complications. Dr. Jamora is likewise not an allergologist and
could not therefore properly advance expert opinion on allergic-
mediated processes. Moreover, he is not a pharmacologist
and, as such, could not have been capable, as an expert
would, of explaining to the court the pharmacologic and toxic
effects of the supposed culprit, Thiopental Sodium (Pentothal).
- An anesthetic accident caused by a rare drug-induced
bronchospasm properly falls within the fields of anesthesia,
internal medicine-allergy, and clinical pharmacology. The
resulting anoxic encephalopathy belongs to the field of
neurology. On the basis of the foregoing transcript, in which the
pulmonologist himself admitted that he could not testify about
the drug with medical authority, it is clear that the appellate
court erred in giving weight to Dr. Jamora's testimony as an
expert in the administration of Thiopental Sodium.
- 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. t is the dominant, moving or producing cause.
- Respondent Dr. Hosaka's negligence can be found in his
failure to exercise the proper authority (as the "captain of the
operative team) in not determining if his anesthesiologist
observed proper anesthesia protocols. n fact, no evidence on
record exists to show that respondent Dr. Hosaka verified if
respondent Dra. Gutierrez properly intubated the patient.
Furthermore, it does not escape us that respondent Dr. Hosaka
had scheduled another procedure in a different hospital at the
same time as Erlinda's cholecystectomy, and was in fact over
three hours late for the latter's operation. Because of this, he
had little or no time to confer with his anesthesiologist
regarding the anesthesia delivery. This indicates that he was
remiss in his professional duties towards his patient. Thus, he
shares equal responsibility for the events which resulted in
Erlinda's condition.
- We now discuss 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.
- n the first place, hospitals exercise significant control in the
hiring and firing of consultants and in the conduct of their 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 who either accept or
reject the application. This is particularly true with respondent
hospital.
- After a physician is accepted, either as a visiting or attending
consultant, he is normally required to attend clinico-
pathological 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,

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and/or for the privilege of admitting patients into the hospital.

n addition to these, the physician's performance as a specialist
is generally evaluated by a peer review committee on the basis
of mortality and morbidity statistics, and 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.
- n other words, 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 patient's 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. n assessing whether
such a relationship in fact exists, the control test is determining.
Accordingly, on the basis of the foregoing, we rule that 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.
This being the case, the question now arises as to whether or
not respondent hospital is solidarily liable with respondent
doctors for petitioner's condition.
- The basis for holding an employer solidarily responsible for
the negligence of its employee is found in Article 2180 of the
Civil Code which considers a person accountable not only for
his own acts but also for those of others based on the former's
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. n other words, 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.
- n the instant case, 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. t failed to adduce evidence with regard to the degree of
supervision which it exercised over its physicians. n
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 Erlinda's condition.
- Upon these disquisitions we hold that private respondents are
solidarily liable for damages under Article 2176 of the Civil
Code.
4. Given these considerations, the amount of actual damages
recoverable in suits arising from negligence should at least
reflect the correct minimum cost of proper care, not the cost of
the care the family is usually compelled to undertake at home
to avoid bankruptcy.
- Art. 2199. - Except as provided by law or by stipulation, one is
entitled to an adequate compensation only for such pecuniary
loss suffered by him as he has duly proved. Such
compensation is referred to as actual or compensatory
damages.
- Our rules on actual or compensatory damages generally
assume that at the time of litigation, the injury suffered as a
consequence of an act of negligence has been completed and
that the cost can be liquidated. However, these provisions
neglect to take into account those situations, as in this case,
where the resulting injury might be continuing and possible
future complications directly arising from the injury, while
certain to occur, are difficult to predict.
- n these cases, the amount of damages which should be
awarded, if they are to adequately and correctly respond to the
injury caused, should be one which compensates for pecuniary
loss incurred and proved, up to the time of trial; and one which
would meet pecuniary loss certain to be suffered but which
could not, from the nature of the case, be made with certainty.
n other words, temperate damages can and should be
awarded on top of actual or compensatory damages in
instances where the injury is chronic and continuing. And
because of the unique nature of such cases, no incompatibility
arises when both actual and temperate damages are provided
for. The reason is that these damages cover two distinct
phases.
- As it would not be equitable - and certainly not in the best
interests of the administration of justice - for the victim in such
cases to constantly come before the courts and invoke their aid
in seeking adjustments to the compensatory damages
previously awarded - temperate damages are appropriate. The
amount given as temperate damages, though to a certain
extent speculative, should take into account the cost of proper
care.
- n the instant case, petitioners were able to provide only
home-based nursing care for a comatose patient who has
remained in that condition for over a decade. Having premised
our award for compensatory damages on the amount provided
by petitioners at the onset of litigation, it would be now much
more in step with the interests of justice if the value awarded
for temperate damages would allow petitioners to provide
optimal care for their loved one in a facility which generally
specializes in such care. They should not be compelled by dire
circumstances to provide substandard care at home without
the aid of professionals, for anything less would be grossly
inadequate. Under the circumstances, an award of
P1,500,000.00 in temperate damages would therefore be
reasonable.
- Meanwhile, the actual physical, emotional and financial cost
of the care of petitioner would be virtually impossible to
quantify. Even the temperate damages herein awarded would
be inadequate if petitioner's condition remains unchanged for
the next ten years.
- The husband and the children, all petitioners in this case, will
have to live with the day to day uncertainty of the patient's
illness, knowing any hope of recovery is close to nil. They
have fashioned their daily lives around the nursing care of
petitioner, altering their long term goals to take into account
their life with a comatose patient. They, not the respondents,
are charged with the moral responsibility of the care of the
victim. The family's moral injury and suffering in this case is
clearly a real one. For the foregoing reasons, an award of
P2,000,000.00 in moral damages would be appropriate.
- Finally, by way of example, exemplary damages in the
amount of P100,000.00 are hereby awarded. Considering the
length and nature of the instant suit we are of the opinion that
attorney's fees valued at P100,000.00 are likewise proper.
DISPOSITION the decision and resolution of the appellate
court appealed from are hereby modified so as to award in
favor of petitioners, and solidarily against private respondents
the following: 1) P1,352,000.00 as actual damages computed
as of the date of promulgation of this decision plus a monthly
payment of P8,000.00 up to the time that petitioner Erlinda
Ramos expires or miraculously survives; 2) P2,000,000.00 as
moral damages, 3) P1,500,000.00 as temperate damages; 4)
P100,000.00 each as exemplary damages and attorney's fees;
and, 5) the costs of the suit.

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BATIQUIN V CA (ViIIegas)
258 SCRA 334 DAVDE; July 5, 1996
NATURE: Petition for review of the decision of the Court of
Appeals
FACTS
- Mrs. Villegas submitted to Dr. Batiquin for prenatal care as
the latter's private patient sometime before September 21,
1988. n the morning of September 21, 1988 Dr. Batiquin,
along with other physicians and nurses, performed a caesarian
operation on Mrs. Villegas and successfully delivered the
latter's baby.
- After leaving the hospital, Mrs. Villegas began to suffer
abdominal pains and complained of being feverish. She also
gradually lost her appetite, so she consulted Dr. Batiquin at the
latter's polyclinic who prescribed for her certain medicines.
However, the pains still kept recurring. She then consulted Dr.
Ma. Salud Kho. After examining her, Dr Kho suggested that
Mrs. Villegas submit to another surgery.
- When Dr. Kho opened the abdomen of Mrs. Villegas 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 material on the right
side of the uterus, embedded on the ovarian cyst. The piece of
rubber appeared to be a part of a rubber glove. This was the
cause of all of the infection of the ovaries and consequently of
all the discomfort suffered by Mrs. Villegas
- The piece of rubber allegedly found was not presented in
court, and Dr. Kho testified that she sent it to a pathologist in
Cebu City for examination. Aside from Dr. Kho's testimony, the
evidence which mentioned the piece of rubber are a 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, "there being no showing that the person or
persons who prepared them are deceased or unable to testify
on the facts therein stated
- There was also doubts as to the whereabouts of the piece of
rubber, as 2 versions arose from Dr. Kho's testimony: 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 failure of the Plaintiffs to reconcile these two
different versions served only to weaken their claim against
Defendant Batiquin. The trial court ruled in favor of the
defendants. The CA reversed the decision.
ISSUES
Procedural: WON the court can review questions of fact
Substantive: WON Dr. Batiquin is liable
HELD
Procedural: YES
- While the rule is that only questions of law may be raised in a
petition for review on certiorari, there are exceptions, among
which are when the factual findings of the trial court and the
appellate court conflict, when the appealed decision is clearly
contradicted by the evidence on record, or when the appellate
court misapprehended the facts
Substantive
- The focal point of the appeal is Dr. Kho's testimony. There
were inconsistencies within her own testimony, which led to the
different decision of the RTC and CA. The CA was correct in
saying that the trial court erred when it isolated the disputed
portion of Dr. Kho's testimony and did not consider it with
other portions of Dr. Kho's testimony. Also, the phrase relied
upon by the trial court does not negate the fact that Dr. Kho
saw a piece of rubber in private respondent Villegas' abdomen,
and that she sent it to a laboratory and then to Cebu City for
examination by a pathologist. 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.
- t is also worth noting that the trial court paid heed to Dr.
Batiquin's testimony, that there was neither any tear on Dr.
Batiquin's gloves after the operation nor blood smears on her
hands upon removing her gloves. But the trial court failed to
recognized that these were mere denials or negative
testimonies. Well-settled is the rule that positive testimony is
stronger than negative testimony.
- While the petitioners claim 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.
- Considering that we have assessed Dr. Kho to be a credible
witness, her positive testimony prevails over the negative
testimony in favor of the petitioners. As such, the rule of res
ipsa loquitur comes to fore.
- This doctrine is stated thus: "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."
- n 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. n this light, the private respondents were bereft of
direct evidence as to the actual culprit or the exact cause of the
foreign object finding its way into private respondent Villegas'
body, which, needless to say, does not occur unless through
the intervention of negligence. Second, since aside from the
cesarean section, private respondent 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. The petitioners, 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 private respondent Villegas' abdomen and for all the adverse
effects thereof
DISPOSITION Decision affirmed

D.M. CONSUNJI V CA
357 SCRA 249 KAPUNAN; April 20, 2001
NATURE
Appeal from CA affirming decision of RTC ordering defendant
D.M. Consunji, nc. to pay damages to plaintiff Maria J. Juego
FACTS
- At around 1:30 p.m., November 2, 1990, Jose Juego, a
construction worker of D. M. Consunji, nc., fell 14 floors from
the Renaissance Tower, Pasig City to his death. nvestigation
disclosed that while victim Jose A. Juego together with Jessie
Jaluag and Delso Destajo were performing their work on board
a steel platform with plywood flooring and cable wires attached
to its four 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 came loose causing the whole
platform assembly and the victim to fall down to the basement
of the elevator core of the building under construction, save his
2 companions who luckily jumped out for safety.
- On May 9, 1991, Jose Juego's widow, Maria, filed in the RTC
of Pasig a complaint for damages against D.M. Consunji, nc.

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The employer raised, among other defenses, the widow's prior

availment of the benefits from the State nsurance Fund. After
trial, the RTC rendered a decision in favor of the widow. On
appeal by D. M. Consunji, the CA affirmed the decision of the
RTC in toto.
ISSUES
1. WON the doctrine of res ipsa loquitur is applicable to prove
petitioner's negligence
2. WON respondent is precluded from recovering damages
under the Civil Code
HELD
1. YES
Ratio As a rule of evidence, the doctrine of res ipsa loquitur 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. t 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. #es 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.
No worker is going to fall from the 14
th
floor of a building to the
basement while performing work in a construction site unless
someone is negligent; thus, the first requisite 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 appellee's deceased husband; thus, the
last requisite is also present. A reasonable presumption or
inference of appellant's negligence arises. Regrettably,
petitioner does not cite any evidence to rebut the inference or
presumption of negligence arising from the application of res
ipsa loquitur, or to establish any defense relating to the
incident.
2. NO
Ratio Claimants may invoke either the Workmen's
Compensation Act or the provisions of the Civil Code, subject
to the consequence that the choice of one remedy will exclude
the other and that the acceptance of compensation under the
remedy chosen will preclude a claim for additional benefits
under the other remedy. The exception is where a claimant
who has already been paid under the Workmen's
Compensation Act may still sue for damages under the Civil
Code on the basis of supervening facts or developments
occurring after he opted for the first remedy. The choice of a
party between inconsistent remedies results in a waiver by
election. Waiver requires a knowledge of the facts basic to the
exercise of the right waived, with an awareness of its
consequences. That a waiver is made knowingly and
intelligently must be illustrated on the record or by the
evidence. There is no showing that private respondent knew of
the remedies available to her when the claim before the ECC
was filed. On the contrary, private respondent testified that she
was not aware of her rights.
DISPOSITION The case is REMANDED to the Regional Trial
Court of Pasig City to determine whether the award decreed in
its decision is more than that of the ECC, whereupon payments
already made to private respondent pursuant to the Labor
Code shall be deducted therefrom. n all other respects, the
Decision of the CA is AFFRMED

D. DEFENSES
1. PLAINTIFF'S NEGLIGENCE
Art. 2179, CC. When the plaintiff's own negligence was the
immediate and proximate cause of his injury, he cannot
recover damages. But if his negligence was only contributory,
the immediate and proximate cause of the injury being the
defendant's lack of due care, the plaintiff may recover
damages, but the courts shall mitigate the damages to be
awarded. (n)

MANILA ELECTRIC CO. V REMONQUILLO
99 PHL 117 MONTEMAYOR; May 18, 1956
NATURE: Petition for review by certiorari of a decision of the
Court of Appeals.
FACTS
- August 22, 1950: Efren Magno went to the house of Antonio
Pealoza, hid stepbrother, on Rodriguez Lanuza St, Manila, to
repair a leaking "media agua. The "media agua was just
below the window of the third story.
- Standing on said "media agua, Magno received from his son
thru the window a 3'x6' galvanized iron sheet to cover the
leaking portion. The lower end of the iron sheet came into
contact with the electric wire of the Manila Electric Company
parallel to the media agua and 2 feet from it, causing his
death by electrocution.
- his widow and children filed suit to recover damages from the
company. Trial court rendered judgment in their favor. Court of
Appeals affirmed the decision.
- The electric wire in question was an exposed, uninsulated
primary wire stretched between poles pm the street and
carrying a charge of 3600 volts. t was installed there some two
years ago before Pealoza's house was constructed. During
the construction of said house a similar incident took place,
with less tragic consequences. The owner of the house
complained to defendant about the danger which the wire
presented, and defendant moved one end of the wire farther
from the house by means of a brace, but left the other end
where it was.
- Regulations of the City required that "all wires be kept three
feet from the building.
- There was no insulation that could have rendered it safe,
because there is no insulation material in commercial use for
such kind of wire (according to appellant, and this was not
refuted).
Petitioner's CIaim
- Owner of the house exceeded the limit for the construction of
the "media agua (17% more).
Respondent's Comment
Owner was given final permit despite the excess of the "media
agua.
ISSUE
WON Manila Electric is guilty of negligence.
HELD
NO. t was the victim who was guilty of negligence
Ratio the liability of electric companies for damages or
personal injury is governed by the rules of negligence,
nevertheless such companies are not insurers of the safety of
the public.
Reasoning
- The death of Magno was primarily caused by his own
negligence, and in some measure by the too close proximity of
the "media agua to the electric wire of the company by reason
of the violation of the original permit given by the city and the
subsequent approval of said illegal construction of the "media

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agua. Had the house owner followed the terms of the permit
given him by the city for the construction of his
"media agua, the distance from the wires to the edge of said
"media agua would have been 3ft and 11 3/8 inches.
- The company cannot be expected to be always on the
lookout for any illegal construction which reduces the distance
between its wires and said construction, and to change the
installation of its wires so as to preserve said distance.
- The violation of the permit for the construction was not the
direct cause of the accident. t merely contributed to it. The real
cause of the accident or death was the reckless or negligent
act of Magno himself. t is to be presumed that due to his age
and experience he was qualified to do so. He had training and
experience for the job. He could not have been entirely a
stranger to electric wires and the danger lurking in them.
- To hold the defendant liable in damages for the death of
Magno, such supposed negligence of the company must have
been the proximate and principal cause of the accident.
Disposition The appealed decision of the CA is reversed, and
complaint against the Company dismissed.

BERNARDO V LEGASPI
29 Phil 12 MORELAND; December 23, 1914
NATURE: Appeal from a judgment of CF Manila dismissing
the complaint on the merits filed in an action to recover
damages for injuries
FACTS
- Due to a collision between the respective automobiles of
Bernardo and Legaspi, the former filed an action to recover
damages for injuries sustained by his car which he alleged
were by reason of Legaspi's negligence in causing said
collision.
Legaspi, on the other hand, filed a cross-complaint alleging it
was Bernardo's fault. He also asks for damages.
- The lower court found upon the evidence that both the plaintiff
and the defendant were negligent in handling their automobiles
and that said negligence was of such a character and extent on
the part of both as to prevent either from recovering.
ISSUE
WON the parties may recover damages
HELD
1. NO
- Where two automobiles, going in opposite directions, collide
on turning a street corner, and it appears from the evidence
and is found by the trial court that the drivers thereof were
equally negligent and contributed equally to the principal
occurrence as determining causes thereof, neither can recover
of the other for damages suffered.

BERNAL V HOUSE
54 PHL 327 MALCOLM; January 30, 1930
FACTS
Fortunata Enverso with her daughter Purificacion Bernal
went to Tacloban, Leyte to attend the procession of Holy
Friday.
After the procession, they, accompanied by two other
persons, passed along a public street named Gran Capitan.
The little girl was allowed to get a short distance in advance
of her mother and her friends.
While in front of the offices of the Tacloban Electric & ce
Plant, Ltd., an automobile appeared on which frightened the
child. She turned to run, but fell into the street gutter. At that
time there was hot water in this gutter or ditch coming from the
Electric ce Plant of J.V. House.
When the mother and her companions reached the child,
they found her face downward in the hot water.
The girl was taken to the provincial hospital. Despite his
efforts, the child died that same night.
t was certified that the cause of death was "Burns, 3rd
Degree, whole Body", and that the contributory causes were
"Congestion of the Brain and visceras of the chest &
abdomen.
The defense was that the hot water was permitted to flow
down the side of the street Gran Captain 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.
The trial judge, however, after examination of the evidence
presented by the defendants, failed to sustain their theory of
the case, except as to the last mentioned special defense. He
nevertheless was led to order the dismissal of the action
because of the contributory negligence of the plaintiffs.
ISSUE
WON the action should be dismissed due to the contributory
negligence of the plaintiffs
HELD: NO
- 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 unfortunately
enough to fall into it
- The mother and her child had a perfect right to be on the
principal street of Tacloban, Leyte, on the evening when the
religious procession was held.
- 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 doctrines announced in the much debated case of Rakes
vs. Atlantic, Gulf and Pacific Co. ([1907], 7 Phil., 359), still rule.
Article 1902 of the Civil Code must again be enforced. The
contributory negIigence of the chiId and her mother, if any,
does not operate as a bar to recovery, but in its strictest
sense couId onIy resuIt in reduction of the damages.
DISPOSITION Judgment appealed from was in part be
reversed and in the court of origin another judgment was
issued in favor of Fortunata Enverso and against J.V. House
for the amount of P1,000, and for the costs of both instances.
SEPARATE OPINION:ROMUALDEZ [dissent]
- Even taking the finding that the defendant by its negligence
helped to bring about the accident which resulted in the death
of the child Purificacion Bernal, plaintiff, by negligence,
contributed to that most regrettable result.
- Judgment appealed from should be affirmed.

PLDT V CA (SPS ESTEBAN)
178 SCRA 94 REGALADO; September 29, 1989
NATURE
Petition for certiorari to review the resolution of the Court of
Appeals.
FACTS
- July 30, 1968 Jeep of Esteban spouses 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. The complaint alleged that respondent 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, leaving a permanent scar on her cheek, while the
respondent husband suffered cut lips. n addition, the
windshield of the jeep was shattered.
- PLDT, in its answer, denies liability on the contention that the
injuries sustained by respondent 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 said construction
work.

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- TC ruled in favor of Esteban spouses whereas the CA

reversed the ruling.
ISSUE
WON the Esteban spouses can claim damages from PLDT
HELD: NO
Ratio A person claiming damages for the negligence of
another has the burden of proving the existence of such fault or
negligence causative thereof. The facts constitutive of
negligence must be affirmatively established by competent
evidence.
Reasoning
- The accident was due to the lack of diligence of respondent
Antonio Esteban and was not imputable to negligent omission
on the part of petitioner PLDT.
> Jeep was running along the inside lane of Lacson Street. f
it had remained on that inside lane, it would not have hit the
accident mound
> That plaintiffs' jeep was on the inside lane before it
swerved to hit the ACCDENT MOUND could have been
corroborated by a picture showing Lacson Street to the south
of the ACCDEN MOUND.
> Plaintiffs' jeep was not running at 25 kilometers an hour as
plaintiff husband claimed. At that speed, he could have
braked the vehicle the moment it struck the ACCDENT
MOUND.
> f the accident did not happen because the jeep was
running quite fast on the inside lane and for some reason or
other it had to swerve suddenly to the right and had to climb
over the ACCDENT MOUND, then plaintiff husband had
not exercised the deligence of a good father of a family to
avoid the accident.
- The above findings clearly show that the negligence of
respondent Antonio Esteban was not only contributory to his
injuries and those of his wife but goes to the very cause of the
occurrence of the accident, as one of its determining factors,
and thereby precludes their right to recover damages.
Disposition resolutions of respondent CA, dated March 11,
1990 and September 3, 1980, are hereby SET ASDE, ts
original decision, promulgated on September 25, 1979, is
hereby RENSTATED and AFFRMED.

2. CONTRIBUTORY NEGLIGENCE
CIVIL CODE
Art. 2179. When the plaintiff's own negligence was the
immediate and proximate cause of his injury, he cannot
recover damages. But if his negligence was only contributory,
the immediate and proximate cause of the injury being the
defendant's lack of due care, the plaintiff may recover
damages, but the courts shall mitigate the damages to be
awarded. (n)
Art. 2214. n quasi-delicts, the contributory negligence of the
plaintiff shall reduce the damages that he may recover.

GENOBIAGON V CA (PEOPLE OF THE PHILS)
178 SCRA 422 GRO-AQUNO; October 22, 1957
NATURE
Petition for review of the CA's decision affirming the conviction
of the petitioner of the crime of homicide thru reckless
imprudence.
FACTS
- On Dec 31, 1959, at about 7:30 PM, a rig driven by
Genobiagon bumped an old woman who was crossing the
street. The appellant's rig was following another at a distance
of two meters. The old woman started to cross when the first
rig was approaching her, but as appellant's vehicle was going
so fast not only because of the steep down-grade of the road,
but also because he was trying to overtake the rig ahead of
him, the appellant's rig bumped the old woman, who fell at the
middle of the road. The appellant continued to drive on, but a
by-stander Mangyao saw the incident and shouted at the
appellant to stop. He ran after appellant when the latter refused
to stop. Overtaking the appellant, Mangyao asked him why he
bumped the old woman and his answer was, 'it was the old
woman that bumped him.' The appellant went back to the place
where the old woman was struck by his rig. The old woman
was unconscious. She was then loaded in a jeep and brought
to the hospital where she died 3 hours later.
- Genobiagon was convicted of homicide thru reckless
imprudence. CA affirmed
- Genobiagon claims CA erred in not finding that the reckless
negligence of the victim was the proximate cause of the
accident which led to her death
ISSUES
WON contributory negligence can be used as defense by
Genobiagon
HELD: NO
- The alleged contributory negligence of the victim, if any, does
not exonerate the accused.
- "The defense of contributory negligence does not apply in
criminal cases committed through reckless imprudence, since
one cannot allege the negligence of another to evade the
effects of his own negligence (People vs. Orbeta, CA-G.R. No.
321, March 29, 1947)." (People vs. Quiones, 44 O.G. 1520)
Disposition the appealed decision is affirmed with
modification as to the civil liability of the petitioner which is
hereby increased to P30,000. Costs against petitioner.

RAKES V ATLANTIC
GR NO. 1719 (1907)
NATURE: Action for damages
FACTS
- The plaintiff, Rakes, one of a group of 8 African-American
laborers in the employment of defendant, Atlantic, was at work
transporting iron rails from the harbor in Manila. The men were
hauling the rails on 2 hand cars, some behind or at it sides and
some pulling the cars in the front by a rope. At one point, the
track sagged, the tie broke, the car canted and the rails slid off
and caught the plaintiff who was walking by the car's side,
breaking his leg, which was later amputated at the knee.
- The plaintiff's witness alleged that a noticeable depression in
the track had appeared after a typhoon. This was reported to
the foreman, Mckenna, but it had not been proven that Atlantic
inspected the track or had any proper system of inspection.
Also, there were no side guards on the cars to keep the rails
from slipping off.
- However, the company's officers and 3 of the workers
testified that there was a general prohibition frequently made
known to all against walking by the side of cars. As Rakes was
walking along the car's side when the accident occurred, he
was found to have contributed in some degree to the injury
inflicted, although not as the primary cause.
- Atlantic contends that the remedy for injury through
negligence lies only in a criminal action against the official
directly responsible and that the employer be held only
subsidiarily liable.
ISSUE
WON there was contributory negligence on the part of
petitioner
HELD: YES
- Petitioner had walked along the side of the car despite a
prohibition to do so by the foreman.
-The negligence of the injured person contributing to his injury
but not being one of the determining causes of the principal
accident, does not operate as a bar to recovery, but only in
reduction of his damages. Each party is chargeable with
damages in proportion to his fault.

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- Trial court assessed that damages to plaintiff amount to

PhP5,000. SC deducted PhP2,500, the amount fairly
attributable to his own negligence.
SEPARATE OPINION: WILLARD AND CARSON [dissent]
- the negligence of the defendant alone was insufficient to
cause the accidentit also required the negligence of the
plaintiff. Because of this, plaintiff should not be afforded relief

PHILIPPINE BANK OF COMMERCE V CA (ROMMEL'S
MARKETING CORP.)
269 SCRA 695 HERMOSSMA JR; March 14, 1997
NATURE
Petition for review challenging the CA decision affirming the
RTC decision in a civil case
FACTS
- the case stems from a complaint filed by Rommel's Marketing
Corporation (RMC) to recover from the former Philippine Bank
of Commerce (PBC) the sum of P304,979.74 representing
various deposits it had made in its current account with the
bank but which were not credited, and were instead deposited
to the account of one Bienvenido Cotas, allegedly due to the
gross and inexcusable negligence of the petitioner bank.
ISSUE
What is the proximate cause of the loss, to the tune of
P304,979.74, suffered by the private respondent RMC
petitioner bank's negligence or that of private respondent's
HELD
- The proximate cause of the loss was the negligent act of the
bank, thru its teller Ms. Azucena Mabayad, in validating the
deposit slips, both original and duplicate, presented by Ms.
Yabut to Ms. Mabayad, notwithstanding the fact that one of the
deposit slips was not completely accomplished.
Ratio Art. 2176. Whoever by act or omission causes damage
to another, there being fault or negligence, is obliged to pay for
the damage done. Such fault or negligence, if there is no pre-
existing contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of this Chapter
Reasoning
- There are three elements of a quasi-delict: (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.

- n the case at bench, there is no dispute as to the damage
suffered by the private respondent. Negligence is the omission
to do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of human
affairs, would do, or the doing of something which a prudent
and reasonable man would do.
- Test by which to determine the existence of negligence in a
particular case: 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 f not, then he is guilty of negligence. The law here in
effect adopts the standard supposed to be supplied by the
imaginary conduct of the discreet paterfamilias of the Roman
law. The existence of negligence in a given case is not
determined by reference to the personal judgment of the actor
in the situation before him. The law considers what would be
reckless, blameworthy, or negligent in the man of ordinary
intelligence and prudence and determines liability by that.
- Applying the above test, it appears that the bank's teller, Ms.
Azucena Mabayad, was negligent in validating, officially
stamping and signing all the deposit slips prepared and
presented by Ms. Yabut, despite the glaring fact that the
duplicate copy was not completely accomplished contrary to
the self-imposed procedure of the bank with respect to the
proper validation of deposit slips, original or duplicate, as
testified to by Ms. Mabayad herself.
- The fact that the duplicate slip was not compulsorily required
by the bank in accepting deposits should not relieve the
petitioner bank of responsibility. The odd circumstance alone
that such duplicate copy lacked one vital information that of
the name of the account holder should have already put Ms.
Mabayad on guard. Rather than readily validating the
incomplete duplicate copy, she should have proceeded more
cautiously by being more probing as to the true reason why the
name of the account holder in the duplicate slip was left blank
while that in the original was filled up. She should not have
been so naive in accepting hook, line and sinker the too
shallow excuse of Ms. rene Yabut to the effect that since the
duplicate copy was only for her personal record, she would
simply fill up the blank space later on.
11
A "reasonable man of
ordinary prudence"
12
would not have given credence to such
explanation and would have insisted that the space left blank
be filled up as a condition for validation. Unfortunately, this was
not how bank teller Mabayad proceeded thus resulting in huge
losses to the private respondent.
- Negligence here lies not only on the part of Ms. Mabayad but
also on the part of the bank itself in its lackadaisical selection
and supervision of Ms. Mabayad. n the testimony of Mr.
Romeo Bonifacio, then Manager of the Pasig Branch of the
petitioner, to the effect that, while he ordered the investigation
of the incident, he never came to know that blank deposit slips
were validated in total disregard of the bank's validation
procedures.
- t was in fact only when he testified in this case in February,
1983, or after the lapse of more than seven (7) years counted
from the period when the funds in question were deposited in
plaintiff's accounts (May, 1975 to July, 1976) that bank
manager Bonifacio admittedly became aware of the practice of
his teller Mabayad of validating blank deposit slips.
Undoubtedly, this is gross, wanton, and inexcusable
negligence in the appellant bank's supervision of its
employees.
- t was this negligence of Ms. Azucena Mabayad, coupled by
the negligence of the petitioner bank in the selection and
supervision of its bank teller, which was the proximate cause of
the loss suffered by the private respondent, and not the latter's
act of entrusting cash to a dishonest employee, as insisted by
the petitioners.
- Proximate cause is determined on the facts of each case
upon mixed considerations of logic, common sense, policy and
precedent. Bank of the Phil. Islands v. ourt of Appeals,
17

defines proximate cause 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. . . ." n this case, absent the act of Ms.
Mabayad in negligently validating the incomplete duplicate
copy of the deposit slip, Ms. rene Yabut would not have the
facility with which to perpetrate her fraudulent scheme with
impunity.
- LAST CLEAR CHANCE: under the doctrine of "last clear
chance" (also referred to, at times as "supervening negligence"
or as "discovered peril"), petitioner bank was indeed the
culpable party. This doctrine, in essence, states that where
both parties are negligent, but the negligent act of one is
appreciably later in time than that of the other, or when it is
impossible to determine whose fault or negligence should be
attributed to the incident, the one who had the last clear
opportunity to avoid the impending harm and failed to do so is
chargeable with the consequences thereof. The rule would
also mean that an antecedent negligence of a person does not
preclude the recovery of damages for the supervening
negligence of, or bar a defense against liability sought by
another, if the latter, who had the last fair chance, could have

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avoided the impending harm by the exercise of due diligence.

Here, assuming that private respondent RMC was negligent in
entrusting cash to a dishonest employee, thus providing the
latter with the opportunity to defraud the company, as
advanced by the petitioner, yet it cannot be denied that the
petitioner bank, thru its teller, had the last clear opportunity to
avert the injury incurred by its client, simply by faithfully
observing their self-imposed validation procedure.
- n the case of banks, the degree of diligence required is more
than that of a good father of a family. Considering the fiduciary
nature of their relationship with their depositors, banks are duty
bound to treat the accounts of their clients with the highest
degree of care.

- The foregoing notwithstanding, it cannot be denied that,
indeed, private respondent was likewise negligent in not
checking its monthly statements of account. Had it done so, the
company would have been alerted to the series of frauds being
committed against RMC by its secretary. The damage would
definitely not have ballooned to such an amount if only RMC,
particularly Romeo Lipana, had exercised even a little vigilance
in their financial affairs. This omission by RMC amounts to
contributory negligence which shall mitigate the damages that
may be awarded to the private respondent
23
under A2179 CC,
to wit:
. . . When the plaintiff's own negligence was the immediate
and proximate cause of his injury, he cannot recover
damages. But if his negligence was only contributory, the
immediate and proximate cause of the injury being the
defendant's lack of due care, the plaintiff may recover
damages, but the courts shall mitigate the damages to be
awarded.
n view of this, we believe that the demands of substantial
justice are satisfied by allocating the damage on a 60-40 ratio.
Thus, 40% of the damage awarded by the respondent
appellate court, except the award of P25,000.00 attorney's
fees, shall be borne by private respondent RMC; only the
balance of 60% needs to be paid by the petitioners. The award
of attorney's fees shall be borne exclusively by the petitioner.
Disposition the decision of the respondent Court of Appeals
is modified by reducing the amount of actual damages private
respondent is entitled to by 40%. Petitioners may recover from
Ms. Azucena Mabayad the amount they would pay the private
respondent. Private respondent shall have recourse against
Ms. rene Yabut. n all other respects, the appellate court's
decision is AFFRMED.
SEPARATE OPINION: PADILLA [dissent]
- t seems that an innocent bank teller is being unduly
burdened with what should fall on Ms. rene Yabut, RMC's own
employee, who should have been charged with estafa or estafa
through falsification of private document. Why is RMC
insulating Ms. rene Yabut from liability when in fact she
orchestrated the entire fraud on RMC, her employer
- Going back to Yabut's modus operandi, it is not disputed that
each time Yabut would transact business with PBC's tellers,
she would accomplish two (2) copies of the current account
deposit slip. PBC's deposit slip, as issued in 1975, had two
parts. The upper part was called the depositor's stub and the
lower part was called the bank copy. Both parts were
detachable from each other. The deposit slip was prepared and
signed by the depositor or his representative, who indicated
therein the current account number to which the deposit was to
be credited, the name of the depositor or current account
holder, the date of the deposit, and the amount of the deposit
either in cash or in checks.
- Since Yabut deposited money in cash, the usual bank
procedure then was for the teller to count whether the cash
deposit tallied with the amount written down by the depositor in
the deposit slip. f it did, then the teller proceeded to verify
whether the current account number matched with the current
account name as written in the deposit slip.
- n the earlier days before the age of full computerization, a
bank normally maintained a ledger which served as a
repository of accounts to which debits and credits resulting
from transactions with the bank were posted from books of
original entry. Thus, it was only after the transaction was
posted in the ledger that the teller proceeded to machine
validate the deposit slip and then affix his signature or initial to
serve as proof of the completed transaction.
- t should be noted that the teller validated the depositor's stub
in the upper portion and the bank copy on the lower portion on
both the original and duplicate copies of the deposit slips
presented by Yabut. The teller, however, detached the
validated depositor's stub on the original deposit slip and
allowed Yabut to retain the whole validated duplicate deposit
slip that bore the same account number as the original deposit
slip, but with the account name purposely left blank by Yabut,
on the assumption that it would serve no other purpose but for
a personal record to complement the original validated
depositor's stub.
- Thus, when Yabut wrote the name of RMC on the blank
account name on the validated duplicate copy of the deposit
slip, tampered with its account number, and superimposed
RMC's account number, said act only served to cover-up the
loss already caused by her to RMC, or after the deposit slip
was validated by the teller in favor of Yabut's husband. Stated
otherwise, when there is a clear evidence of tampering with
any of the material entries in a deposit slip, the genuineness
and due execution of the document become an issue in
resolving whether or not the transaction had been fair and
regular and whether the ordinary course of business had been
followed by the bank.
- The legal or proximate cause of RMC's loss was when Yabut,
its employee, deposited the money of RMC in her husband's
name and account number instead of that of RMC, the rightful
owner of such deposited funds. Precisely, it was the criminal
act of Yabut that directly caused damage to RMC, her
employer, not the validation of the deposit slip by the teller as
the deposit slip was made out by Yabut in her husband's name
and to his account.
- LAST CLEAR CHANCE: As for the doctrine of "last clear
chance," it is my considered view that the doctrine assumes
that the negligence of the defendant was subsequent to the
negligence of the plaintiff and the same must be the proximate
cause of the injury. n short, there must be a last and a clear
chance, not a last possible chance, to avoid the accident or
injury. t must have been a chance as would have enabled a
reasonably prudent man in like position to have acted
effectively to avoid the injury and the resulting damage to
himself.
- n the case at bar, the bank was not remiss in its duty of
sending monthly bank statements to private respondent RMC
so that any error or discrepancy in the entries therein could be
brought to the bank's attention at the earliest opportunity.
Private respondent failed to examine these bank statements
not because it was prevented by some cause in not doing so,
but because it was purposely negligent as it admitted that it
does not normally check bank statements given by banks.
- t was private respondent who had the last and clear chance
to prevent any further misappropriation by Yabut had it only
reviewed the status of its current accounts on the bank
statements sent to it monthly or regularly. Since a sizable
amount of cash was entrusted to Yabut, private respondent
should, at least, have taken ordinary care of its concerns, as
what the law presumes. ts negligence, therefore, is not
contributory but the immediate and proximate cause of its
injury.

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3. FORTUITOUS EVENT

Art. 1174, CC. 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.

JUNTILLA V FONTANAR
136 SCRA 624 GUTERREZ JR; May 31, 1985
NATURE: Petition to review the decision of CF of Cebu
FACTS
- Petitioner Roberto Juntilla was sitting a the front seat of a
jeepney (driven by one Berfol Camoro, registered under the
franchise of Clemente Fontanar, but actually owned by
Fernando Banzon) when its right rear tire exploded causing it
to turn turtle. Plaintiff was thrown out of the vehicle and lost
consciousness upon landing on the ground. When he came
back to his senses, he found that he had a lacerated wound on
his right palm, injuries on his left arm, right thigh and on his
back and also found this "Omega wrist watch was lost. He
went to Danao city and upon arrival there he entered the City
Hospital to attend to his injuries and asked his father-in-law to
go to site of the accident to look for his watch but the watch
was nowhere to be found.
- Petitioner then filed a civil case for breach of contract with
damages before the City Court of Cebu against Fontanar,
Banzon, and Camoro, who filed their answer, alleging that the
accident was beyond their control taking into account that the
tire that exploded was newly bought and slightly used at the
time it blew up.
- City Court rendered judgment in favor of petitioner. The
respondents then appealed to the CF of Cebu, which reversed
the judgment upon a finding that the accident in question was
due to a fortuitous event. Petitioner's MFR was denied, hence
this appeal.
ISSUES
1. WON the CF erred in absolving the carrier from any liability
upon a finding that the tire blow out is a fortuitous event
2. WON the accident was due to a fortuitous event
HELD
1. YES
- The CF relied on the ruling of the CA in #odriguez v #ed
Line Transportation o., that "a tire blow-out does not
constitute negligence unless the tire was already old and
should not have been used at all. This conclusion is based on
a misapprehension of overall facts. n La Mallorca and
Pampanga Bus o. v e Jesus, et al, We held that, " not only
are the rulings of the CA in #odriguez v #ed Line Trans. o.
not binding on this Court but they were also based on
considerations quite different from those that obtain in the case
at bar. n the case at bar, there are specific acts of negligence
on the part of the respondents. The records show that the
passenger jeepney turned turtle and jumped into a ditch
immediately after its right rear tire exploded. The evidence
shows that the passenger jeepney was running at a very fast
speed before the accident. We agree with the observation of
the petitioner that a public utility jeep running at a regular and
safe speed will not jump into a ditch when its right rear tire
blows up. There is also evidence to show that the passenger
jeepney was overloaded at the time of the accident. The
petitioner stated that there were 3 passengers in the front seat
and 14 in the rear.
- While it may be true that the tire that blew-up was still good
because the grooves of the tire were still visible, this fact alone
does not make the explosion of the tire a fortuitous event. No
evidence was presented to show that the accident was due to
adverse road conditions or that precautions were taken by the
jeepney driver to compensate for any conditions liable to cause
accidents. The sudden blowing-up, therefore, could have been
caused by too much air pressure injected into the tire coupled
by the fact that the jeepney was overloaded and speeding at
the time of the accident.
2. NO
Ratio A caso fortuito (fortuitous event) 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. t must be impossible to foresee the even 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
4. The obligor (debtor) must be free from any participation in
the aggravation of the injury resulting to the creditor
Reasoning
- n the case at bar, the cause of the unforeseen and
unexpected occurrence was not independent of the human will.
The accident was caused either through the negligence of the
driver or because of mechanical defects in the tire. Common
carriers should teach their drivers not to overload their vehicles
not to exceed safe and legal speed limits and to know the
correct measures to take when a tire blows up thus insuring the
safety of passengers at all times.
- Relative to the contingency of mechanical defects, we held in
ecesito, et al. v. Paras, et al, that: "The preponderance of
authority is in favor of the doctrine that a passenger is entitled
to recover damages from a carrier for an injury resulting from a
defect in an appliance purchased from a manufacturer,
whenever it appears that the defect would have been
discovered by the carrier if it had exercised the degree of care
which under the circumstances was incumbent upon it. with
regard to inspection and application of the necessary tests. For
the purposes of this doctrine, the manufacturer is considered
as being in law the agent or servant of the carrier, as far as
regards the work of constructing the appliance. According to
this theory, the good repute of the manufacturer will not relieve
the carrier from liability.
- t is sufficient to reiterate that the source of a common
carrier's legal liability is the contract of carriage, and by
entering into the said contract, it binds itself to carry the
passengers safely as far as human care and foresight can
provide, using the utmost diligence of a very cautious person,
with a due regard for all the circumstances. The records show
that this obligation was not met by the respondents.
Disposition Decision appealed from is REVERSED and SET
ASDE. Decision of City Court is RENSTATED

HERNANDEZ V COMMISSION ON AUDIT
179 SCRA 39 CRUZ; November 6, 1989
NATURE: A petition to reverse Commission on Audit's denial
of relief
FACTS
- Teodoro M. Hernandez was the officer-in-charge and special
disbursing officer of the Ternate Beach Project of the Philippine
Tourism Authority in Cavite. He went to the main office in
Manila to encash 2 checks covering the wages of the
employees and the operating expenses of the Project. He
estimated that the money would be available by 10am and that
he would be back in Ternate by about 2pm of the same day.
However, the processing of the checks was completed only at
3pm. The petitioner decided nevertheless to encash them
because the Project employees would be waiting for their pay
the following day. And so, he collected the cash value of the
checks. The petitioner had two choices: (1) return to Cavite
that same afternoon and arrive there in the early evening; or
(2) take the money with him to his house in Marilao, Bulacan,

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spend the night there, and leave for Ternate the following
morning. He opted for the second, thinking it the safer one. He
took a passenger jeep bound for his house in Bulacan. t was
while the vehicle was along EDSA that two persons with knives
boarded and forcibly took the money he was carrying.
Hernandez, after the initial shock, immediately followed in
desperate pursuit. He caught up with Virgilio Alvarez and
overcame him after a scuffle. Alvarez was subsequently
charged with robbery and pleaded guilty. But the hold-upper
who escaped is still at large and the stolen money he took with
him has not been recovered.
- the petitioner, invoking the foregoing facts, filed a request for
relief from money accountability under Section 638 of the
Revised Administrative Code.
1

- however, the Commission on Audit, through then Chairman
Francisco S. Tantuico, jr. denied the petitioner's request,
observing inter alia:
In the instant case, the loss of the P10,175.00 under the
accountability of Mr. Hernandez can be attributed to his
negligence because had he brought the cash proceeds of the
checks (replenishment fund) to the Beach Park in Ternate
immediately after encashment for safekeeping in his office,
which is the normal procedure in the handling of public funds,
the loss of said cash thru robbery could have been aborted.
- n the petition at bar, Hernandez claims that the respondent
COA acted with grave abuse of discretion in denying him relief
and in holding him negligent for the loss of the stolen money.
He avers he has done only what any reasonable man would
have done and shouId not be heId accountabIe for a
fortuitous event over which he had no controI.
- On his decision to take the money home that afternoon
instead of returning directly to Ternate, he says that the first
course was more prudent as he saw it, if only because his
home in Marilao was much nearer than his office in Ternate;
that the likelihood of robbery during the time in question was
stronger in Ternate than in Marilao; that what happened was a
fortuitous event that could not have reasonably been foreseen,
especially on that busy highway.
- then Solicitor-General argued that Hernandez was negligent
in the safekeeping of the stolen funds. Later, however, his
successor sided with the petitioner, agreeing that Hernandez
had not committed any negligence or, assuming he was guilty
of contributory negligence, had made up for it with his efforts to
retrieve the money and his capture of one of the robbers, who
was eventually convicted.
- COA insists that the petitioner should not be relieved from his
money accountability because it was his own negligence that
led to the loss of the cash he had sought to take not to Ternate
but to Marilao. ts contention is that the petitioner should not
have encashed the checks as the hour was already late and he
knew he could not return to Ternate before nightfall. The memo
concludes that in deciding to take the money with him to
Marilao after imprudently withdrawing it from the main office,
the petitioner was assuming a risk from which he cannot now
be excused after the loss of the money as a result of the
robbery to which it was unreasonably exposed.
ISSUE
WON petitioner's acts are so tainted with negligence or
recklessness as to justify the denial of the petitioner's request
for relief from accountability for the stolen money
HELD
NO

1
3ecl|or 38. 0reo|r lor |oss ooourr|n |n rrans|r or oue ro oasua|ry hor|oe ro /uo|ror. wrer a |oss ol
goverrrerl lurds or properly occurs Wr||e lre sare |s |r lrars|l or |s caused oy l|re, lrell, or olrer casua|ly, lre
oll|cer accourlao|e lrerelor or rav|rg cuslody lrereol sra|| |rred|ale|y rol|ly lre Aud|lor 0erera|, or lre prov|rc|a|
aud|lor, accord|rg as a raller |s W|lr|r lre or|g|ra| jur|sd|cl|or ol lre ore or lre olrer, ard W|lr|r lr|rly days or sucr
|orger per|od as lre Aud|lor, or prov|rc|a| aud|lor, ray |r lre parl|cu|ar case a||oW, sra|| preserl r|s app||cal|or lor
re||el, W|lr lre ava||ao|e ev|derce |r supporl lrereol. Ar oll|cer Wro la||s lo corp|y W|lr lr|s requ|rererl sra|| rol oe
re||eved ol ||ao|||ly or a||oWed cred|l lor ary sucr |oss |r lre sell|ererl ol r|s accourls.

- This was undoubtedly a fortuitous event covered by the said
provisions, something that could not have been reasonably
foreseen although it could have happened, and did. For most
of us, all we can rely on is a reasoned conjecture of what might
happen, based on common sense and our own experiences, or
our intuition, if you will, and without any mystic ability to peer
into the future. So it was with the petitioner.
- t is true that the petitioner miscalculated, but the Court feels
he should not be blamed for that. The decision he made
seemed logical at that time and was one that could be
expected of a reasonable and prudent person.
Disposition The petitioner is entitled to be relieved from
accountability for the money forcibly taken from him.
ACCORDNGLY, the petition is GRANTED.

GOTESCO INVESTMENT CORPORATION V CHATTO
210 SCRA 18 DAVDE JR; June 16, 1992
NATURE: Petition for Review
FACTS
- n the afternoon of June 4, 1982 Gloria E. Chatto, and her 15-
year old daughter, Lina Delza E. Chatto went to see the movie
"Mother Dear" at Superama theater, owned by defendant
Gotesco nvestment Corporation. They bought balcony tickets
but even then were unable to find seats considering the
number of people patronizing the movie. Hardly ten (10)
minutes after entering the theater, the ceiling of its balcony
collapsed. The theater was plunged into darkness and
pandemonium ensued. Shocked and hurt, plaintiffs managed
to crawl under the fallen ceiling. As soon as they were able to
get out to the street they walked the nearby FEU Hospital
where they were confined and treated for one (1) day.
- The next day, they transferred to the UST hospital. Plaintiff
Gloria Chatto was treated in said hospital from June 5 to June
19 and plaintiff Lina Delza Chatto from June 5 to 11. Per
Medico Legal Certificate (Exh, "C") issued by Dr. Ernesto G.
Brion, plaintiff Lina Delza Chatto suffered the following injuries:
- Defendant tried to avoid liability by alleging that the collapse
of the ceiling of its theater was done due to force majeure. t
maintained that its theater did not suffer from any structural or
construction defect.
ISSUES
1. WON Jesus Lim Ong's investigation maybe given weight in
the trial
2. WON the collapse was due to force majeure
HELD
1. NO
- there was no authoritative investigation conducted by
impartial civil and structural engineers on the cause of the
collapse of the theater's ceiling, Jesus Lim Ong is not an
engineer, He is a graduate of architecture from the St. Louie
University in Baguio City. t does not appear he has passed the
government examination for architects. n fine, 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.
2. NO
- Petitioner's claim that the collapse of the ceiling of the
theater's balcony was due to force majeure is not even
founded on facts because its own witness, Mr. Jesus Lim Ong,
admitted that "he could not give any reason why the ceiling
collapsed." Having interposed it as a defense, it had the
burden to prove that the collapse was indeed caused by force
majeure. t could not have collapsed without a cause. That Mr.
Ong could not offer any explanation does not imply force
majeure. Petitioner could have easily discovered the cause of
the collapse if indeed it were due to force majeure. To Our
mind, 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 respondent Court impliedly

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held, incompetent. He is not an engineer, but an architect who

had not even passed the government's examination. Verily,
post-incident investigation cannot be considered as material to
the present proceedings. What is significant is the finding of the
trial court, affirmed by the respondent Court, that the collapse
was due to construction defects. There was no evidence
offered to overturn this finding. The building was constructed
barely four (4) years prior to the accident in question. t was not
shown that any of the causes denominates 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 petitioner 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.
- t is settled that - The owner or proprietor of a place of public
amusement impliedly warrants that the premises, appliances
and amusement devices are safe for the purpose for which
they are designed, the doctrine being subject to no other
exception or qualification than that he does not contract against
unknown defects not discoverable by ordinary or reasonable
means.
- This 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.
Disposition judgment is hereby rendered DENYNG the
instant petition with costs against petitioner.

SERVANDO V PHILIPPINE STEAM NAVIGATION CO
117 SCRA 832 ESCOLN; 1982
NATURE
This appeal, originally brought to the Court of Appeals, seeks to
set aside the decision of the Court of First nstance of Negros
Occidental in Civil Cases Nos. 7354 and 7428, declaring appellant
Philippine Steam Navigation liable for damages for the loss of the
appellees' cargoes as a result of a fire which gutted the Bureau of
Customs' warehouse in Pulupandan, Negros Occidental.
FACTS
- On November 6, 1963, appellees Clara Uy Bico and Amparo
Servando loaded on board the appellant's vessel for carriage from
Manila to Pulupandan, Negros Occidental several cargoes (cavans
of rice, colored papers, toys etc) as evidenced by the
corresponding bills of lading issued by the appellant. Upon arrival
of the vessel at Pulupandan, in the morning of November 18,
1963, the cargoes were discharged, complete and in good order,
unto the warehouse of the Bureau of Customs. At about 2:00 in the
afternoon of the same day, said warehouse was razed by a fire of
unknown origin, destroying appellees' cargoes. Before the fire,
however, appellee Uy Bico was able to take delivery of 907 cavans
of rice

Appellees' claims for the value of said goods were rejected
by the appellant.
- On the bases of the foregoing facts, the lower court rendered a
decision, ordering Philippine Steam to pay for damages. The court
a quo held that the delivery of the shipment in question to the
warehouse of the Bureau of Customs is not the delivery
contemplated by Article 1736; and since the burning of the
warehouse occurred before actual or constructive delivery of the
goods to the appellees, the loss is chargeable against the
appellant.
Philippine Steam on the other hand relies on the following:
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 . ...
ISSUE
WON the above stipulation validly limits the liability of the
shipowner in this case
HELD
YES
Ratio The parties may stipulate anything in the contract for so long
as the stipulation is not contrary to law, morals, public policy. The
stipulation which merely iterates the principle of caso fortuito is for
all intents and purposes valid.
Reasoning
- We sustain the validity of the above stipulation; there is nothing
therein that is contrary to law, morals or public policy.
- Appellees would contend that the above stipulation does not bind
them because it was printed in fine letters on the back-of the bills
of lading; and that they did not sign the same. This argument
overlooks the pronouncement of this Court in Ong Yiu vs. Court of
Appeals, promulgated June 29, 1979,
3
where the Court held that
while it may be true that petitioner had not signed the plane ticket ,
he is nevertheless bound by the provisions thereof. 'Such
provisions have been held to be a part of the contract of carriage,
and valid and binding upon the passenger regardless of the latter's
lack of knowledge or assent to the regulation'. t is what is known
as a contract of 'adhesion', in regards which it has been said that
contracts of adhesion wherein one party imposes a ready made
form of contract on the other, as the plane ticket in the case at bar,
are contracts not entirely prohibited. The one who adheres to the
contract is in reality free to reject it entirely; if he adheres, he gives
his consent. (Tolentino, Civil Code, Vol. V, 1962 Ed., p. 462,
citing Mr. Justice J.B.L. Reyes, Lawyer's Journal, Jan. 31, 1951, p.
49).
- Besides, the agreement contained in the above quoted Clause 14
is a mere iteration of the basic principle of law written in Article 1 1
7 4 of the Civil Code. 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.'
- n its dissertation of the phrase 'caso fortuito' the Enciclopedia
Juridicada Espanola
5
says: "n 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." n the case at bar, the
burning of the customs warehouse was an extraordinary event
which happened independently of the will of the appellant. The
latter could not have foreseen the event.
- There is nothing in the record to show that appellant carrier
,incurred in delay in the performance of its obligation. t appears
that appellant had not only notified appellees of the arrival of their
shipment, but had demanded that the same be withdrawn. n fact,
pursuant to such demand, appellee Uy Bico had taken delivery of
907 cavans of rice before the burning of the warehouse.
Nor can the appellant or its employees be charged with
negligence. The storage of the goods in the Customs warehouse
pending withdrawal thereof by the appellees was undoubtedly
made with their knowledge and consent. Since the warehouse
belonged to and was maintained by the government, it would be

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unfair to impute negligence to the appellant, the latter having no

control whatsoever over the same.
Disposition judgment appealed from is hereby set aside.
SEPARATE OPINION: AQUINO [concur]
- concur. Under article 1738 of the Civil Code "the extraordinary
liability of the common carrier continues to be operative even
during the time the goods are stored in the warehouse of the
carrier at the place of destination, until the consignee has been
advised of the arrival of the goods and has had reasonable
opportunity thereafter to remove them or otherwise dispose of
them".
- From the time the goods in question were deposited in the
Bureau of Customs' warehouse in the morning of their arrival up to
two o' clock in the afternoon of the same day, when the warehouse
was burned, Amparo C. Servando and Clara Uy Bico, the
consignees, had reasonable opportunity to remove the goods.
Clara had removed more than one-half of the rice consigned to
her. Moreover, the shipping company had no more control and
responsibility over the goods after they were deposited in the
customs warehouse by the arrastre and stevedoring operator. No
amount of extraordinary diligence on the part of the carrier could
have prevented the loss of the goods by fire which was of
accidental origin.

NATIONAL POWER CORP V CA (RAYO ET AL)
GR NO. 103442-45 DAVDE JR; May 21, 1993
NATURE: Petition for review on certiorari under Rule 45 of the
Revised Rules of Court
FACTS
- When the water level in the Angat dam went beyond the
allowable limit at the height of typhoon Kading NPC opened three
of the dam's spillways to release the excess water in the dam. This
however caused the inundation of the banks of the Angat river
which caused persons and animals to drown and properties to be
washed away.
- The flooding was purportedly caused by the negligent release by
the defendants of water through the spillways of the Angst Dam
(Hydroelectric Plant).
PIaintiffs cIaim:
- NPC operated and maintained a multi-purpose hydroelectric plant
in the Angat River
- despite the defendants' knowledge of the impending entry of
typhoon "Kading," they failed to exercise due diligence in
monitoring the water level at the dam
- when the said water level went beyond the maximum allowable
limit at the height of the typhoon, the defendants suddenly,
negligently and recklessly opened three (3) of the dam's spillways,
thereby releasing a large amount of water which inundated the
banks of the Angat River causing the death of members of the
household of the plaintiffs, together with their animals
Respondents comments:
- NPC exercised due care, diligence and prudence in the operation
and maintenance of the hydroelectric plant
- NPC exercised the diligence of a good father in the selection of
its employees
- written notices were sent to the different municipalities of Bulacan
warning the residents therein about the impending release of a
large volume of water with the onset of typhoon "Kading" and
advising them to take the necessary Precautions
- the water released during the typhoon was needed to prevent the
collapse of the dam and avoid greater damage to people and
property
- in spite of the precautions undertaken and the diligence
exercised, they could still not contain or control the flood that
resulted
- the damages incurred by the private respondents were caused by
a fortuitous event or force majeure and are in the nature and
character of damnum absque injuria.
ISSUES
1. WON NPC was guilty of negligence
2. WON (applying the ruling of NAkpil & Sons v. CA) NPC is liable
given that the inundation was caused by force majeure
HELD
1. YES
- A similar case entitled National Power Corporation, et al. vs,
Court of Appeals, et al.," involving the very same incident subject
of the instant petition. The court there declared that the proximate
cause of the loss and damage sustained by the plaintiffs therein--
who were similarly situated as the private respondents herein-was
the negligence of the petitioners,
- on the basis of its meticulous analysis and evaluation of the
evidence a dduced by the parties in the cases subject of CA-G.R.
CV Nos. 27290-93, public respondent found as conclusively
established that indeed, the petitioners were guilty of "patent gross
and evident lack of foresight, imprudence and negligence in the
management and operation of Angat Dam," and that "the extent of
the opening of the spillways, and the magnitude of the water
released, are all but products of defendants-appellees
headlessness, slovenliness, and carelessness."and that the 24
October 1978 'early warning notice" supposedly sent to the
affected municipalities, the same notice involved in the case at bar,
was insufficient.
2. YES
- given that NPC is guilty of negligence. Juan F. Nakipil & Sons vs.
Court of Appeals is still good law as far as the concurrent liability of
an obligor in the case of force majeure is concerned.
- n the Nakpil case it was held that "To exempt the obligor from
liability under Article 1174 of the Civil Code, for a breach of an
obligation due to an 'act of God,' the following must concur: (a) the
cause of the breach of the obligation must be independent of the
will of the debtor, (b) the event must be either unforeseeable or
unavoidable; (c) the event must be such as to render it impossible
for the debtor to fulfill his obligation in a normal manner; and (d)
the debtor must be free from any participation in, or aggravation of
the injury to the creditor. Thus, if upon the happening of a
fortuitous event or an act of God, there concurs a corresponding
fraud, negligence, delay or violation or contravention in any
manner of the tenor of the obligation as provided for in Article 1170
of the Civil Code, which results in loss or damage, the obligor
cannot escape liability.
- The principle embodied in the act of God doctrine strictly requires
that the act must be one occasioned exclusively by the violence of
nature and all human agencies are, to be excluded from creating
or entering into the cause of the mischief. When the effect, the
cause of which is to be considered, is found to be in part the result
of the participation of man whether it be from active intervention or
neglect, or failure to act, the whole occurrence is thereby
humanized, as it were, and removed from the rules applicable to
the acts of God. (1 Corpus Juris, pp. 1174-1175).
Disposition Petition dismissed.

SOUTHEASTERN COLLEGE V CA
292 SCRA 422 PURSMA; July 10, 1998
NATURE
Petition for review seeking to set aside the Decision promulgated
on July 31, 1996, and Resolution dated September 12, 1996 of the
Court of Appeals in "Juanita de Jesus vda. de Dimaano, et al. vs.
Southeastern College, nc., which reduced the moral damages
awarded below from P1,000,000.00 to P200,000.00. The
Resolution under attack denied petitioner's motion for
reconsideration.
FACTS
- Private respondents are owners of a house at 326 College Road,
Pasay City, while petitioner owns a four-storey school building
along the same College Road. On October 11, 1989, at about
6:30 in the morning, a powerful typhoon "Saling hit Metro Manila.
Buffeted by very strong winds, the roof of petitioner's building was
partly ripped off and blown away, landing on and destroying
portions of the roofing of private respondents' house. After the
typhoon had passed, an ocular inspection of the destroyed
buildings was conducted by a team of engineers headed by the
city building official, Engr. Jesus L. Reyna. Pertinent aspects of
the latter's Report dated October 18, 1989 stated, as follows:
"5. One of the factors that may have led to this calamitous event
is the formation of the buildings in the area and the general
direction of the wind. Situated in the peripheral lot is an almost

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&-shaped formation of 4-storey building. Thus, with the strong

winds having a westerly direction, the general formation of the
buildings becomes a big funnel-like structure, the one situated
along ollege #oad, receiving the heaviest impact of the strong
winds. Hence, there are portions of the roofing, those located on
both ends of the building, which remained intact after the storm.
6. Another factor and perhaps the most likely reason for the
dislodging of the roofings structural trusses is the improper
anchorage of the said trusses to the roof beams. The 1/2
diameter steel bars embedded on the concrete roof beams
which serve as truss anchorage are not bolted nor nailed to the
trusses. Still, there are other steel bars which were not even
bent to the trusses, thus, those trusses are not anchored at all to
the roof beams.
- t then recommended that "to avoid any further loss and damage
to lives, limbs and property of persons living in the vicinity, the
fourth floor of subject school building be declared as a "structural
hazard.
- n their Complaint
i[6]
before the Regional Trial Court of Pasay
City, Branch 117, for damages based on culpa aquiliana, private
respondents alleged that the damage to their house rendered the
same uninhabitable, forcing them to stay temporarily in others'
houses. And so they sought to recover from petitioner
P117,116.00, as actual damages, P1,000,000.00, as moral
damages, P300,000.00, as exemplary damages and P100,000.00,
for and as attorney's fees; plus costs.
- n its Answer, petitioner averred that subject school building had
withstood several devastating typhoons and other calamities in the
past, without its roofing or any portion thereof giving way; that it
has not been remiss in its responsibility to see to it that said school
building, which houses school children, faculty members, and
employees, is "in tip-top condition; and furthermore, typhoon
"Saling was "an act of God and therefore beyond human control
such that petitioner cannot be answerable for the damages
wrought thereby, absent any negligence on its part.
- The Trial Court and the Court of Appeals gave credence to the
ocular inspection made by the city engineer. Thus, this appeal.

ISSUES
WON the damage on the roof of the building of private
respondents resulting from the impact of the falling portions of the
school building's roof ripped off by the strong winds of typhoon
"Saling, was, within legal contemplation, due to fortuitous event
HELD
YES
- Petitioner cannot be held liable for the damages suffered by the
private respondents. This conclusion finds support in Article 1174
of the Civil Code, which provides:
"Art 1174. Except in cases expressly specified by the law, or
when it is otherwise declared by stipulation, or when the nature
of the obligation requires the assumption of risk, no person shall
be responsible for those events which could not be foreseen, or
which, though foreseen, were inevitable.
- The antecedent of fortuitous event or caso fortuito is found in the
Partidas which defines it as "an event which takes place by
accident and could not have been foreseen. Escriche elaborates it
as "an unexpected event or act of God which could neither be
foreseen nor resisted. Civilist Arturo M. Tolentino adds that
"[f]ortuitous events may be produced by two general causes: (1)
by nature, such as earthquakes, storms, floods, epidemics, fires,
etc. and (2) by the act of man, such as an armed invasion, attack
by bandits, governmental prohibitions, robbery, etc.
- n order that a fortuitous event may exempt a person from liability,
it is necessary that he be free from any previous negligence or
misconduct by reason of which the loss may have been
occasioned.. An act of God cannot be invoked for the protection of
a person who has been guilty of gross negligence in not trying to
forestall its possible adverse consequences. When a person's
negligence concurs with an act of God in producing damage or
injury to another, such person is not exempt from liability by
showing that the immediate or proximate cause of the damage or
injury was a fortuitous event. When the effect is found to be partly
the result of the participation of man whether it be from active
intervention, or neglect, or failure to act the whole occurrence is
hereby humanized, and removed from the rules applicable to acts
of God.
- After a thorough study and evaluation of the evidence on record,
this Court believes otherwise, notwithstanding the general rule that
factual findings by the trial court, especially when affirmed by the
appellate court, are binding and conclusive upon this Court. After a
careful scrutiny of the records and the pleadings submitted by the
parties, we find exception to this rule and hold that the lower courts
misappreciated the evidence proffered.
- There is no question that a typhoon or storm is a fortuitous event,
a natural occurrence which may be foreseen but is unavoidable
despite any amount of foresight, diligence or care. n order to be
exempt from liability arising from any adverse consequence
engendered thereby, there should have been no human
participation amounting to a negligent act. n other words, the
person seeking exoneration from liability must not be guilty of
negligence. Negligence, as commonly understood, is conduct
which naturally or reasonably creates undue risk or harm to others.
t may be the failure to observe that degree of care, precaution,
and vigilance which the circumstances justly demand, or the
omission to do something which a prudent and reasonable man,
guided by considerations which ordinarily regulate the conduct of
human affairs, would do. From these premises, we proceed to
determine whether petitioner was negligent, such that if it were not,
the damage caused to private respondents' house could have
been avoided
- At the outset, it bears emphasizing that a person claiming
damages for the negligence of another has the burden of proving
the existence of fault or negligence causative of his injury or loss.
The facts constitutive of negligence must be affirmatively
established by competent evidence, not merely by presumptions
and conclusions without basis in fact. Private respondents, in
establishing the culpability of petitioner, merely relied on the
aforementioned report submitted by a team which made an ocular
inspection of petitioner's school building after the typhoon. As the
term imparts, an ocular inspection is one by means of actual sight
or viewing. What is visual to the eye though, is not always
reflective of the real cause behind. For instance, one who hears a
gunshot and then sees a wounded person, cannot always
definitely conclude that a third person shot the victim. t could
have been self-inflicted or caused accidentally by a stray bullet.
The relationship of cause and effect must be clearly shown.
- n the present case, other than the said ocular inspection, no
investigation was conducted to determine the real cause of the
partial unroofing of petitioner's school building. Private
respondents did not even show that the plans, specifications and
design of said school building were deficient and defective.
Neither did they prove any substantial deviation from the approved
plans and specifications. Nor did they conclusively establish that
the construction of such building was basically flawed.
- Moreover, the city building official, who has been in the city
government service since 1974, admitted in open court that no
complaint regarding any defect on the same structure has ever
been lodged before his office prior to the institution of the case at
bench. t is a matter of judicial notice that typhoons are common
occurrences in this country. f subject school building's roofing
was not firmly anchored to its trusses, obviously, it could not have
withstood long years and several typhoons even stronger than
"Saling.
- n light of the foregoing, we find no clear and convincing evidence
to sustain the judgment of the appellate court. We thus hold that
petitioner has not been shown negligent or at fault regarding the
construction and maintenance of its school building in question
and that typhoon "Saling was the proximate cause of the damage
suffered by private respondents' house.