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1.Castilex Industrial Corp. v. Vasquez, Jr., 321 SCRA 393 minority age.

y age. Unlike the parent, who wig be liable only if his


child is still a minor, the teacher is held answerable by the law
for the act of the student under him regardless of the
student's age. Thus, in the Palisoc Case, liability attached to
the teacher and the head of the technical school although the
To the mind of this Court, ABAD was engaged in affairs of wrongdoer was already of age. In this sense, Article 2180
his own or was carrying out a personal purpose not in line with treats the parent more favorably than the teacher.
his duties at the time he figured in a vehicular accident. It was
then about 2:00 a.m. of 28 August 1988, way beyond the
normal working hours. ABADs working day had ended; his The Court is not unmindful of the apprehensions expressed by
overtime work had already been completed. His being at a Justice Makalintal in his dissenting opinion in Palisoc that the
place which, as petitioner put it, was known as a haven for school may be unduly exposed to liability under this article in
prostitutes, pimps, and drug pushers and addicts, had no view of the increasing activism among the students that is
connection to petitioners business; neither had it any relation likely to cause violence and resulting injuries in the school
to his duties as a manager. Rather, using his service vehicle premises. That is a valid fear, to be sure. Nevertheless, it
even for personal purposes was a form of a fringe benefit or should be repeated that, under the present ruling, it is not the
one of the perks attached to his position. school that will be held directly liable. Moreover, the defense
of due diligence is available to it in case it is sought to be held
answerable as principal for the acts or omission of its head or
Since there is paucity of evidence that ABAD was acting within the teacher in its employ.
the scope of the functions entrusted to him, petitioner
CASTILEX had no duty to show that it exercised the diligence
of a good father of a family in providing ABAD with a service The school can show that it exercised proper measures in
vehicle. Thus, justice and equity require that petitioner be selecting the head or its teachers and the appropriate
relieved of vicarious liability for the consequences of the supervision over them in the custody and instruction of the
negligence of ABAD in driving its vehicle. pupils pursuant to its rules and regulations for the
maintenance of discipline among them. In almost all cases
2. Amadora v. CA, GR No. L-47745, April 15, 1988 now, in fact, these measures are effected through the
assistance of an adequate security force to help the teacher
physically enforce those rules upon the students. Ms should
As long as it can be shown that the student is in the school
bolster the claim of the school that it has taken adequate
premises in pursuance of a legitimate student objective, in the
steps to prevent any injury that may be committed by its
exercise of a legitimate student right, and even in the
students.
enjoyment of a legitimate student right, and even in the
enjoyment of a legitimate student privilege, the responsibility
of the school authorities over the student continues. Indeed, A fortiori, the teacher himself may invoke this defense as it
even if the student should be doing nothing more than would otherwise be unfair to hold him directly answerable for
relaxing in the campus in the company of his classmates and the damage caused by his students as long as they are in the
friends and enjoying the ambience and atmosphere of the school premises and presumably under his influence. In this
school, he is still within the custody and subject to the respect, the Court is disposed not to expect from the teacher
discipline of the school authorities under the provisions of the same measure of responsibility imposed on the parent for
Article 2180. their influence over the child is not equal in degree.
Obviously, the parent can expect more obedience from the
child because the latter's dependence on him is greater than
During all these occasions, it is obviously the teacher-in-
on the teacher. It need not be stressed that such dependence
charge who must answer for his students' torts, in practically
includes the child's support and sustenance whereas
the same way that the parents are responsible for the child
submission to the teacher's influence, besides being
when he is in their custody. The teacher-in-charge is the one
coterminous with the period of custody is usually enforced
designated by the dean, principal, or other administrative
only because of the students' desire to pass the course. The
superior to exercise supervision over the pupils in the specific
parent can instill more las discipline on the child than the
classes or sections to which they are assigned. It is not
teacher and so should be held to a greater accountability than
necessary that at the time of the injury, the teacher be
the teacher for the tort committed by the child.
physically present and in a position to prevent it. Custody
does not connote immediate and actual physical control but
refers more to the influence exerted on the child and the And if it is also considered that under the article in question,
discipline instilled in him as a result of such influence. Thus, the teacher or the head of the school of arts and trades is
for the injuries caused by the student, the teacher and not the responsible for the damage caused by the student or
parent shag be held responsible if the tort was committed apprentice even if he is already of age and therefore less
within the premises of the school at any time when its tractable than the minor then there should all the more be
authority could be validly exercised over him. justification to require from the school authorities less
accountability as long as they can prove reasonable diligence
in preventing the injury. After all, if the parent himself is no
In any event, it should be noted that the liability imposed by
longer liable for the student's acts because he has reached
this article is supposed to fall directly on the teacher or the
majority age and so is no longer under the former's control,
head of the school of arts and trades and not on the school
there is then all the more reason for leniency in assessing the
itself. If at all, the school, whatever its nature, may be held to
teacher's responsibility for the acts of the student.
answer for the acts of its teachers or even of the head thereof
under the general principle ofrespondeat superior, but then it
may exculpate itself from liability by proof that it had
exercised the diligence of abonus paterfamilias.

Such defense is, of course, also available to the teacher or the 3. Phil School of Business Administration v. CA, GR No. 84698,
head of the school of arts and trades directly held to answer February 4, 1992;
for the tort committed by the student. As long as the
defendant can show that he had taken the necessary
In the circumstances obtaining in the case at bar, however,
precautions to prevent the injury complained of, he can
there is, as yet, no finding that the contract between the
exonerate himself from the liability imposed by Article 2180,
school and Bautista had been breached thru the former's
which also states that:
negligence in providing proper security measures. This would
be for the trial court to determine. And, even if there be a
The responsibility treated of in this article shall cease when finding of negligence, the same could give rise generally to a
the Persons herein mentioned prove that they observed all the breach of contractual obligation only. Using the test
diligence of a good father of a family to prevent damages. of Cangco, supra, the negligence of the school would not be
relevant absent a contract. In fact, that negligence becomes
In this connection, it should be observed that the teacher will material only because of the contractual relation between
be held liable not only when he is acting in loco parentis for PSBA and Bautista. In other words, a contractual relation is a
the law does not require that the offending student be of condition sine qua nonto the school's liability. The negligence
of the school cannot exist independently of the contract,
unless the negligence occurs under the circumstances set out Hence, applying the said doctrine to this case, We rule that
in Article 21 of the Civil Code. private respondent Soriano, as principal, cannot be held liable
for the reason that the school he heads is an academic school
and not a school of arts and trades. Besides, as clearly
This Court is not unmindful of the attendant difficulties posed
admitted by private respondent Aquino, private respondent
by the obligation of schools, above-mentioned, for
Soriano did not give any instruction regarding the digging.
conceptually a school, like a common carrier, cannot be an
insurer of its students against all risks. This is specially true in
the populous student communities of the so-called "university From the foregoing, it can be easily seen that private
belt" in Manila where there have been reported several respondent Aquino can be held liable under Article 2180 of
incidents ranging from gang wars to other forms of the Civil Code as the teacher-in-charge of the children for
hooliganism. It would not be equitable to expect of schools to being negligent in his supervision over them and his failure to
anticipate all types of violent trespass upon their premises, for take the necessary precautions to prevent any injury on their
notwithstanding the security measures installed, the same persons. However, as earlier pointed out, petitioners base the
may still fail against an individual or group determined to alleged liability of private respondent Aquino on Article 2176
carry out a nefarious deed inside school premises and which is separate and distinct from that provided for in Article
environs. Should this be the case, the school may still avoid 2180.
liability by proving that the breach of its contractual obligation
to the students was not due to its negligence, here statutorily
defined to be the omission of that degree of diligence which is
required by the nature of the obligation and corresponding to 5. Fuellas v. Candano, GR No.L-14409, October 31, 1961
the circumstances of persons, time and place. 9
The particular law that governs this case is Article 2180, the
pertinent portion of which provides: "The father and, in case
As the proceedings a quo have yet to commence on the
of his death or incapacity, the mother, are responsible for
substance of the private respondents' complaint, the record is damages caused by the minor children who live in their
bereft of all the material facts. Obviously, at this stage, only company." To hold that this provision does not apply to the
the trial court can make such a determination from the instant case because it only covers obligations which arise
evidence still to unfold. from quasi-delicts and not obligations which arise from
criminal offenses, would result in the absurdity that while for
an act where mere negligence intervenes the father or mother
may stand subsidiarily liable for the damage caused by his or
4. Ylarde v. Aquino, GR No L-33722, July 29, 1988 her son, no liability would attach if the damage is caused with
criminal intent. Verily, the void apparently exists in the
Revised Penal Code is subserved by this particular provision of
Art. 2176. Whoever by act or omission causes damage to our Civil Code, as may be gleaned from some recent decisions
another, there being fault or negligence, is obliged to pay for of this Court which cover equal or identical cases.
the damage done. Such fault or negligence, if there is no pre- Moreover, the case at bar was decided by the Court of
existing contractual relation between the parties, is called a Appeals on the basis of the evidence submitted therein by
quasi-delict and is governed by the provisions of this Chapter. both parties, independently of the criminal case. And
responsibility for fault or negligence under Article 2176 upon
which the action in the present case was instituted, is entirely
On the other hand, the applicable provision of Article 2180 separate and distinct from the civil liability arising from fault
states: of negligence under the Penal Code (Art. 2177), and having in
mind the reasons behind the law as heretofore stated, any
Art. 2180. x x x discussion as to the minor's criminal responsibility is of no
moment.

xxx xxx xxx


6. Tamargo v. CA, GR No. 85044, June 3, 1992
Lastly, teachers or heads of establishments of arts and trades
shall be liable for damages caused by their pupils and We do not believe that parental authority is properly regarded
students or apprentices, so long as they remain in their as having been retroactively transferred to and vested in the
custody. 3 adopting parents, the Rapisura spouses, at the time the air
rifle shooting happened. We do not consider that retroactive
effect may be giver to the decree of adoption so as to impose
The issue to be resolved is whether or not under the cited
a liability upon the adopting parents accruing at a time when
provisions, both private respondents can be held liable for
adopting parents had no actual or physically custody over the
damages.
adopted child. Retroactive affect may perhaps be given to the
granting of the petition for adoption where such is essential to
As regards the principal, We hold that he cannot be made permit the accrual of some benefit or advantage in favor of
responsible for the death of the child Ylarde, he being the the adopted child. In the instant case, however, to hold that
head of an academic school and not a school of arts and parental authority had been retroactively lodged in the
trades. This is in line with Our ruling in Amadora vs. Court of Rapisura spouses so as to burden them with liability for a
Appeals, 4 wherein this Court thoroughly discussed the tortious act that they could not have foreseen and which they
doctrine that under Article 2180 of the Civil Code, it is only the could not have prevented (since they were at the time in the
teacher and not the head of an academic school who should United States and had no physical custody over the child
be answerable for torts committed by their students. This Adelberto) would be unfair and unconscionable. Such a result,
Court went on to say that in a school of arts and trades, it is moreover, would be inconsistent with the philosophical and
only the head of the school who can be held liable. In the policy basis underlying the doctrine of vicarious liability. Put a
same case, We explained: little differently, no presumption of parental dereliction on the
part of the adopting parents, the Rapisura spouses, could
After an exhaustive examination of the problem, the Court has have arisen since Adelberto was not in fact subject to their
come to the conclusion that the provision in question should control at the time the tort was committed.
apply to all schools, academic as well as non-academic.
Where the school is academic rather than technical or
vocational in nature, responsibility for the tort committed by
the student will attach to the teacher in charge of such NIKKO HOTEL MANILA GARDEN and RUBY
student, following the first part of the provision. This is the LIM, Petitioners, v. ROBERTO REYES, a.k.a. "AMAY
general rule. In the case of establishments of arts and trades, BISAYA," Respondent
it is the head thereof, and only he, who shall be held liable as
an exception to the general rule. In other words, teachers in Petitioners Lim and Hotel Nikko contend that pursuant to the
general shall be liable for the acts of their students except doctrine of volenti non fit injuria, they cannot be made liable
where the school is technical in nature, in which case it is the for damages as respondent Reyes assumed the risk of being
head thereof who shall be answerable. Following the canon asked to leave (and being embarrassed and humiliated in the
ofreddendo singula sinquilis 'teachers' should apply to the process) as he was a "gate-crasher."
words "pupils and students' and 'heads of establishments of
arts and trades to the word "apprentices."
The doctrine of volenti non fit injuria ("to which a person POLO S. PANTALEON, Petitioner,
assents is not esteemed in law as injury" 47) refers to self- vs.
inflicted injury48 or to the consent to injury49 which precludes AMERICAN EXPRESS INTERNATIONAL, INC., Respondent
the recovery of damages by one who has knowingly and
voluntarily exposed himself to danger, even if he is not In light of the foregoing, we find and so hold that AMEX is
negligent in doing so.50 As formulated by petitioners, however, neither contractually bound nor legally obligated to act on its
this doctrine does not find application to the case at bar cardholders purchase requests within any specific period of
because even if respondent Reyes assumed the risk of being time, much less a period of a "matter of seconds" that
asked to leave the party, petitioners, under Articles 19 and 21 Pantaleon uses as his standard. The standard therefore is
of the New Civil Code, were still under obligation to treat him implicit and, as in all contracts, must be based on fairness and
fairly in order not to expose him to unnecessary ridicule and reasonableness, read in relation to the Civil Code provisions
shame. on human relations, as will be discussed below.

In the absence of any proof of motive on the part of Ms. Lim to Thus far, we have already established that: (a) AMEX had
humiliate Mr. Reyes and expose him to ridicule and shame, it neither a contractual nor a legal obligation to act upon
is highly unlikely that she would shout at him from a very Pantaleons purchases within a specific period of time; and (b)
close distance. Ms. Lim having been in the hotel business for AMEX has a right to review a cardholders credit card
twenty years wherein being polite and discreet are virtues to history. Our recognition of these entitlements, however,
be emulated, the testimony of Mr. Reyes that she acted to the does not give AMEX an unlimited right to put off action
contrary does not inspire belief and is indeed incredible. Thus, on cardholders purchase requests for indefinite
the lower court was correct in observing that - periods of time. In acting on cardholders purchase
requests, AMEX must take care not to abuse its rights and
cause injury to its clients and/or third persons.
Considering the closeness of defendant Lim to plaintiff when
the request for the latter to leave the party was made such A right, though by itself legal because recognized or
that they nearly kissed each other, the request was meant to granted by law as such, may nevertheless become the
be heard by him only and there could have been no intention source of some illegality. When a right is exercised in a
on her part to cause embarrassment to him. It was plaintiff's manner which does not conform with the norms
reaction to the request that must have made the other guests enshrined in Article 19 and results in damage to
aware of what transpired between them. . . another, a legal wrong is thereby committed for which
the wrongdoer must be held responsible.
Had plaintiff simply left the party as requested, there was no
In Nikko Hotel Manila Garden v. Reyes, 45 we ruled that a
need for the police to take him out
person who knowingly and voluntarily exposes himself to
THE ILOCOS NORTE ELECTRIC COMPANY, petitioner, danger cannot claim damages for the resulting injury:
vs.
HONORABLE COURT OF APPEALS, (First Division) LILIAN The doctrine of volenti non fit injuria ("to which a person
JUAN LUIS, JANE JUAN YABES, VIRGINIA JUAN CID, assents is not esteemed in law as injury") refers to self-
GLORIA JUAN CARAG, and PURISIMA JUAN, respondents. inflicted injury or to the consent to injury which precludes the
recovery of damages by one who has knowingly and
Indeed, under the circumstances of the case, petitioner was voluntarily exposed himself to danger, even if he is not
negligent in seeing to it that no harm is done to the general negligent in doing so.
public"... considering that electricity is an agency, subtle and
deadly, the measure of care required of electric companies This doctrine, in our view, is wholly applicable to this case.
must be commensurate with or proportionate to the danger. Pantaleon himself testified that the most basic rule when
The duty of exercising this high degree of diligence and care travelling in a tour group is that you must never be a cause of
extends to every place where persons have a right to be" any delay because the schedule is very strict. 46 When
(Astudillo vs. Manila Electric, 55 Phil. 427). The negligence of Pantaleon made up his mind to push through with his
petitioner having been shown, it may not now absolve itself purchase, he must have known that the group would become
from liability by arguing that the victim's death was solely due annoyed and irritated with him. This was the natural,
to a fortuitous event. "When an act of God combines or foreseeable consequence of his decision to make them all
concurs with the negligence of the defendant to produce an wait.
injury, the defendant is liable if the injury would not have
resulted but for his own negligent conduct or omission" (38
We do not discount the fact that Pantaleon and his family did
Am. Jur., p. 649).
feel humiliated and embarrassed when they had to wait for
AMEX to approve the Coster purchase in Amsterdam. We have
Likewise, the maxim "volenti non fit injuria" relied upon by to acknowledge, however, that Pantaleon was not a helpless
petitioner finds no application in the case at bar. It is victim in this scenario at any time, he could have cancelled
imperative to note the surrounding circumstances which the sale so that the group could go on with the city tour. But
impelled the deceased to leave the comforts of a roof and he did not.
brave the subsiding typhoon. As testified by Linda Alonzo
Estavillo (see TSN, p. 5, 26 Sept. 1972) and Aida Bulong (see
More importantly, AMEX did not violate any legal duty to
TSN, p. 43, 26 Sept. 1972), the deceased, accompanied by the
Pantaleon under the circumstances under the principle of
former two, were on their way to the latter's grocery store "to
damnum absque injuria, or damages without legal wrong, loss
see to it that the goods were not flooded." As such, shall We
without injury.47 As we held in BPI Express Card v. CA:48
punish her for exercising her right to protect her property from
the floods by imputing upon her the unfavorable presumption
that she assumed the risk of personal injury? Definitely not. We do not dispute the findings of the lower court that private
For it has been held that a person is excused from the force of respondent suffered damages as a result of the cancellation of
the rule, that when he voluntarily assents to a known danger his credit card. However, there is a material distinction
he must abide by the consequences, if an emergency is found between damages and injury. Injury is the illegal invasion of a
to exist or if the life or property of another is in peril (65A legal right; damage is the loss, hurt, or harm which results
C.S.C. Negligence(174(5), p. 301), or when he seeks to rescue from the injury; and damages are the recompense or
his endangered property (Harper and James, "The Law of compensation awarded for the damage suffered. Thus, there
Torts." Little, Brown and Co., 1956, v. 2, p. 1167). Clearly, an can be damage without injury in those instances in which the
emergency was at hand as the deceased's property, a source loss or harm was not the result of a violation of a legal duty. In
of her livelihood, was faced with an impending loss. such cases, the consequences must be borne by the injured
Furthermore, the deceased, at the time the fatal incident person alone, the law affords no remedy for damages
occurred, was at a place where she had a right to be without resulting from an act which does not amount to a legal injury
regard to petitioner's consent as she was on her way to or wrong. These situations are often called damnum absque
protect her merchandise. Hence, private respondents, as injuria.
heirs, may not be barred from recovering damages as a result
of the death caused by petitioner's negligence (ibid., p. 1165, In other words, in order that a plaintiff may maintain an action
1166). for the injuries of which he complains, he must establish that
such injuries resulted from a breach of duty which the
defendant owed to the plaintiff - a concurrence of injury to the At the time of the construction of the fence, the lot was not
plaintiff and legal responsibility by the person causing it. The subject to any servitudes. There was no easement of way
underlying basis for the award of tort damages is the premise existing in favor of private respondents, either by law or by
that an individual was injured in contemplation of law. Thus, contract. The fact that private respondents had no existing
there must first be a breach of some duty and the imposition right over the said passageway is confirmed by the very
of liability for that breach before damages may be awarded; decision of the trial court granting a compulsory right of way
and the breach of such duty should be the proximate cause of in their favor after payment of just compensation. It was only
the injury. that decision which gave private respondents the right to use
the said passageway after payment of the compensation and
imposed a corresponding duty on petitioners not to interfere
Pantaleon is not entitled to damages
in the exercise of said right.

Because AMEX neither breached its contract with Pantaleon,


Hence, prior to said decision, petitioners had an absolute right
nor acted with culpable delay or the willful intent to cause
over their property and their act of fencing and enclosing the
harm, we find the award of moral damages to Pantaleon
same was an act which they may lawfully perform in the
unwarranted.
employment and exercise of said right. To repeat, whatever
injury or damage may have been sustained by private
SPOUSES CRISTINO and BRIGIDA CUSTODIO and respondents by reason of the rightful use of the said land by
SPOUSES LITO and MARIA CRISTINA petitioners is damnum absque injuria.17
SANTOS,petitioners,
vs.
A person has a right to the natural use and enjoyment of his
COURT OF APPEALS, HEIRS OF PACIFICO C. MABASA
own property, according to his pleasure, for all the purposes
and REGIONAL TRIAL COURT OF PASIG, METRO MANILA,
to which such property is usually applied. As a general rule,
BRANCH 181, respondents
therefore, there is no cause of action for acts done by one
However, the mere fact that the plaintiff suffered losses does person upon his own property in a lawful and proper manner,
not give rise to a right to recover damages. To warrant the although such acts incidentally cause damage or an
recovery of damages, there must be both a right of action for unavoidable loss to another, as such damage or loss
a legal wrong inflicted by the defendant, and damage is damnum absque injuria. 18 When the owner of property
resulting to the plaintiff therefrom. Wrong without damage, or makes use thereof in the general and ordinary manner in
damage without wrong, does not constitute a cause of action, which the property is used, such as fencing or enclosing the
since damages are merely part of the remedy allowed for the same as in this case, nobody can complain of having been
injury caused by a breach or wrong.8 injured, because the incovenience arising from said use can
be considered as a mere consequence of community life. 19

There is a material distinction between damages and injury.


Injury is the illegal invasion of a legal right; damage is the The proper exercise of a lawful right cannot constitute a legal
loss, hurt, or harm which results from the injury; and damages wrong for which an action will lie, 20 although the act may
are the recompense or compensation awarded for the damage result in damage to another, for no legal right has been
suffered. Thus, there can be damage without injury in those invaded. 21 One may use any lawful means to accomplish a
instances in which the loss or harm was not the result of a lawful purpose and though the means adopted may cause
violation of a legal duty. These situations are often damage to another, no cause of action arises in the latter's
called damnum absque injuria.9 favor. An injury or damage occasioned thereby is damnum
absque injuria. The courts can give no redress for hardship to
an individual resulting from action reasonably calculated to
In order that a plaintiff may maintain an action for the injuries achieve a lawful means. 22
of which he complains, he must establish that such injuries
resulted from a breach of duty which the defendant owed to
the plaintiff a concurrence of injury to the plaintiff and legal LBC AIR CARGO, INC. FERNANDO M. YU and JAIME
responsibility by the person causing it. 10 The underlying basis TANO, petitioners,
for the award of tort damages is the premise that an vs.
individual was injured in contemplation of law. Thus, there HON. COURT OF APPEALS, Fourth Division, SHERWIN
must first be the breach of some duty and the imposition of MONTEROLA y OYON-OYON, represented by
liability for that breach before damages may be awarded; it is PATROCENIA GRONDIANO y MONTEROLA, and
not sufficient to state that there should be tort liability merely PATROCENIA GRONDIANO y MONTEROLA, respondents.
because the plaintiff suffered some pain and suffering.11
From every indication, the proximate cause of the accident
In other words, in order that the law will give redress for an was the negligence of Tano who, despite extremely poor
act causing damage, that act must be not only hurtful, but visibility, hastily executed a left turn (towards the Bislig
wrongful. There must be damnum et injuria.13 If, as may airport road entrance) without first waiting for the dust to
happen in many cases, a person sustains actual damage, that settle. It was this negligent act of Tano, which had placed his
is, harm or loss to his person or property, without sustaining vehicle (LBC van) directly on the path of the motorcycle
any legal injury, that is, an act or omission which the law does coming from the opposite direction, that almost
not deem an injury, the damage is regarded as damnum instantaneously caused the collision to occur. Simple
absque injuria.14 prudence required him not to attempt to cross the other lane
until after it would have been safe from and clear of any
oncoming vehicle.
In the case at bar, although there was damage, there was no
legal injury. Contrary to the claim of private respondents,
petitioners could not be said to have violated the principle of Petitioners poorly invoke the doctrine of "last clear chance"
abuse of right. In order that the principle of abuse of right (also referred to, at times, as "supervening negligence" or as
provided in Article 21 of the Civil Code can be applied, it is "discovered peril"). The doctrine, in essence, is to the effect
essential that the following requisites concur: (1) The that where both parties are negligent, but the negligent act of
defendant should have acted in a manner that is contrary to one is appreciably later in time than that of the other, or when
morals, good customs or public policy; (2) The acts should be it is impossible to determine whose fault or negligence should
willful; and (3) There was damage or injury to the plaintiff. 15 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 (seePicart vs.
The act of petitioners in constructing a fence within their lot is Smith, 37 Phil. 809). Stated differently, the rule would also
a valid exercise of their right as owners, hence not contrary to mean that an antecedent negligence of a person does not
morals, good customs or public policy. The law recognizes in preclude the recovery of damages for supervening negligence
the owner the right to enjoy and dispose of a thing, without of, or bar a defense against the liability sought by, another if
other limitations than those established by law. 16 It is within the latter, who had the last fair chance, could have avoided
the right of petitioners, as owners, to enclose and fence their the impending harm by the exercise of due diligence
property. Article 430 of the Civil Code provides that "(e)very (Pantranco North Express, Inc. vs. Baesa, 179 SCRA 384; Glan
owner may enclose or fence his land or tenements by means People's Lumber and Hardware vs. Intermediate Appellate
of walls, ditches, live or dead hedges, or by any other means Court, 173 SCRA 464).
without detriment to servitudes constituted thereon."
In the case at bench, the victim was traveling along the lane case of Bank of the Phil. Islands v. Court of Appeals, 17 defines
where he was rightly supposed to be. The incident occurred in proximate cause as "that cause, which, in natural and
an instant. No appreciable time had elapsed, from the continuous sequence, unbroken by any efficient intervening
moment Tano swerved to his left to the actual impact; that cause, produces the injury, and without which the result would
could have afforded the victim a last clear opportunity to not have occurred. . . ." In this case, absent the act of Ms.
avoid the collision. Mabayad in negligently validating the incomplete duplicate
copy of the deposit slip, Ms. Irene Yabut would not have the
facility with which to perpetrate her fraudulent scheme with
It is true however, that the deceased was not all that free
impunity. Apropos, once again, is the pronouncement made by
from negligence in evidently speeding too closely behind the
the respondent appellate court,
vehicle he was following. We, therefore, agree with the
appellate court that there indeed was contributory negligence In the case of banks, however, the degree of diligence
on the victim's part that could warrant a mitigation of required is more than that of a good father of a family.
petitioners liability for damages. Considering the fiduciary nature of their relationship with their
depositors, banks are duty bound to treat the accounts of
PHILIPPINE BANK OF COMMERCE, now absorbed by their clients with the highest degree of care.
PHILIPPINE COMMERCIAL INTERNATIONAL BANK,
ROGELIO LACSON, DIGNA DE LEON, MARIA ANGELITA The foregoing notwithstanding, it cannot be denied that,
PASCUAL, et al., petitioners, indeed, private respondent was likewise negligent in not
vs. checking its monthly statements of account. Had it done so,
THE COURT OF APPEALS, ROMMEL'S MARKETING CORP., the company would have been alerted to the series of frauds
represented by ROMEO LIPANA, its President & General being committed against RMC by its secretary. The damage
Manager, respondents. would definitely not have ballooned to such an amount if only
RMC, particularly Romeo Lipana, had exercised even a little
Art. 2176. Whoever by act or omission vigilance in their financial affairs. This omission by RMC
causes damage to another, there being fault amounts to contributory negligence which shall mitigate the
or negligence, is obliged to pay for the damages that may be awarded to the private
damage done. Such fault or negligence, if respondent 23 under Article 2179 of the New Civil Code, to wit:
there is no pre-existing contractual relation
between the parties, is called a quasi- . . . When the plaintiff's own negligence was
delict and is governed by the provisions of the immediate and proximate cause of his
this Chapter. injury, he cannot recover damages. But if
his negligence was only contributory, the
There are three elements of a quasi-delict: (a) damages immediate and proximate cause of the
suffered by the plaintiff; (b) fault or negligence of the injury being the defendant's lack of due
defendant, or some other person for whose acts he must care, the plaintiff may recover damages, but
respond; and (c) the connection of cause and effect between the courts shall mitigate the damages to be
the fault or negligence of the defendant and the damages awarded.
incurred by the plaintiff. 7
In view of this, we believe that the demands of substantial
In the case at bench, there is no dispute as to the damage justice are satisfied by allocating the damage on a 60-40 ratio.
suffered by the private respondent (plaintiff in the trial court) Thus, 40% of the damage awarded by the respondent
RMC in the amount of P304,979.74. It is in ascribing fault or appellate court, except the award of P25,000.00 attorney's
negligence which caused the damage where the parties point fees, shall be borne by private respondent RMC; only the
to each other as the culprit. balance of 60% needs to be paid by the petitioners. The
award of attorney's fees shall be borne exclusively by the
petitioners.
Negligence is the omission to do something which a
reasonable man, guided by those considerations which LAPANDAY AGRICULTURAL and G.R. No. 153076
ordinarily regulate the conduct of human affairs, would do, or DEVELOPMENT CORPORATION
the doing of something which a prudent and reasonable man (LADECO), HENRY BERENGUEL
would do. The seventy-eight (78)-year-old, yet still relevant, and APOLONIO R. DEOCAMPO vs. MICHAEL RAYMOND
case of Picart v. Smith, 8 provides the test by which to ANGALA
determine the existence of negligence in a particular case
which may be stated as follows: Did the defendant in doing Both the trial court and the Court of Appeals found
the alleged negligent act use that reasonable care and that Deocampo was at fault because he was driving very fast
caution which an ordinarily prudent person would have used prior to the collision. The Court of Appeals sustained the trial
in the same situation? If not, then he is guilty of negligence. courts finding that Deocampo was running more than the
The law here in effect adopts the standard supposed to be normal cruising speed. Both the trial court and the Court of
supplied by the imaginary conduct of the Appeals noted that the crewcab stopped 21 meters away from
discreet paterfamilias of the Roman law. The existence of the point of impact. Deocampo admitted that he stepped on
the brakes only after the collision.
negligence in a given case is not determined by reference to
the personal judgment of the actor in the situation before him.
Petitioners allege that Borres did not take the proper lane
The law considers what would be reckless, blameworthy, or before executing the U-turn. Petitioners allege
negligent in the man of ordinary intelligence and prudence that Borres violated Section 45(b) of RA 4136 and it was his
and determines liability by that. recklessness that was the proximate cause of the accident.

Applying the above test, it appears that the bank's teller, Ms. Section 45(b) of RA 4136 states:
Azucena Mabayad, was negligent in validating, officially
Sec. 45. Turning at intersections. x x x
stamping and signing all the deposit slips prepared and
presented by Ms. Yabut, despite the glaring fact that the
(b) The driver of a vehicle intending to turn to the left shall
duplicate copy was not completely accomplished contrary to approach such intersection in the lane for traffic to the right of
the self-imposed procedure of the bank with respect to the and nearest to the center line of the highway, and, in turning,
proper validation of deposit slips, original or duplicate, as shall pass to the left of the center of the intersection, except
testified to by Ms. Mabayad herself, that, upon highways laned for traffic and upon one-way
highways, a left turn shall be made from the left lane of traffic
It was this negligence of Ms. Azucena Mabayad, coupled by in the direction in which the vehicle is proceeding.
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 Petitioners further allege that since Borres was violating a
latter's act of entrusting cash to a dishonest employee, as traffic rule at the time of the accident, respondent
insisted by the petitioners. and Borres were the parties at fault. Petitioners cite Article
2185 of the Civil Code, thus:
Proximate cause is determined on the facts of each case upon
mixed considerations of logic, common sense, policy and
precedent. 15 Vda. de Bataclan v. Medina, 16 reiterated in the
Art. 2185. Unless there is proof to the contrary, it is presumed The question before us is who was negligent? Negligence is
that a person driving a motor vehicle has been negligent if at the omission to do something which a reasonable man, guided
the time of the mishap, he was violating any traffic regulation. by those considerations which ordinarily regulate the conduct
of human affairs, would do, or the doing of something which a
We rule that both parties were negligent in this prudent and reasonable man would not do 24 or as Judge
case. Borres was at the outer lane when he executed a U- Cooley defines it, "(T)he failure to observe for the protection
turn. Following Section 45(b) of RA 4136, Borres should have of the interests of another person, that degree of care,
stayed at the inner lane which is the lane nearest to the
precaution, and vigilance which the circumstances justly
center of the highway. However, Deocampo was equally
demand, whereby such other person suffers injury. 25
negligent. Borres slowed down the pick-up preparatory to
executing the U-turn. Deocampo should have also slowed
down when the pick-up slowed down. Deocampo admitted In Picart vs. Smith, 26 decided more than seventy years ago
that he noticed the pick-up when it was still about 20 meters but still a sound rule, we held:
away from him.[13] Vehicular traffic was light at the time of the
incident. The pick-up and the crewcab were the only vehicles
on the road.[14] Deocampo could have avoided the crewcab if The test by which to determine the existence of negligence in
he was not driving very fast before the collision, as found by a particular case may be stated as follows: Did the defendant
both the trial court and the Court of Appeals. We sustain this in doing the alleged negligent act use that reasonable care
finding since factual findings of the Court of Appeals affirming and caution which an ordinarily prudent person would have
those of the trial court are conclusive and binding on this used in the same situation? If not, then he is guilty of
Court.[15] Further, the crewcab stopped 21 meters from the negligence. The law here in effect adopts the standard
point of impact. It would not have happened ifDeocampo was supposed to be supplied by the imaginary conduct of the
not driving very fast. discreet paterfamilias of the Roman law. The existence of
negligence in a given case is not determined by reference to
Doctrine of Last Clear Chance Applies the personal judgment of the actor in the situation before him.
The Law considers what would be reckless, blameworthy, or
Since both parties are at fault in this case, the doctrine of last
negligent in the man of ordinary intelligence and prudence
clear chance applies.
and determines liability by that.
The doctrine of last clear chance states that where both
This doctrine is stated thus: "Where the thing which causes
parties are negligent but the negligent act of one is
appreciably later than that of the other, or where it is injury is shown to be under the management of the
impossible to determine whose fault or negligence caused the defendant, and the accident is such as in the ordinary course
loss, the one who had the last clear opportunity to avoid the of things does not happen if those who have the management
loss but failed to do so is chargeable with the loss. [16] In this use proper care, it affords reasonable evidence, in the
case,Deocampo had the last clear chance to avoid the absence of an explanation by the defendant, that the accident
collision. Since Deocampo was driving the rear vehicle, he had arose from want of care. 33 Or as Black's Law
full control of the situation since he was in a position to Dictionary 34 puts it:
observe the vehicle in front of him.[17] Deocampo had the
responsibility of avoiding bumping the vehicle in front of him.
[18] Res ipsa loquitur. The thing speaks for itself
A U-turn is done at a much slower speed to avoid skidding
and overturning, compared to running straight ahead. Rebuttable presumption or inference that
[19]
Deocampo could have avoided the vehicle if he was not defendant was negligent, which arises upon
driving very fast while following the pick-up. Deocampo was proof that instrumentality causing injury was
not only driving fast, he also admitted that he did not step on in defendant's exclusive control, and that
the brakes even upon seeing the pick-up. He only stepped on the accident was one which ordinarily does
the brakes after the collision. not happen in absence of negligence. Res
ipsa loquitur is rule of evidence whereby
negligence of alleged wrongdoer may be
Petitioners are Solidarily Liable inferred from mere fact that accident
happened provided character of accident
LADECO alleges that it should not be held jointly and severally and circumstances attending it lead
liable with Deocampo because it exercised due diligence in reasonably to belief that in absence of
the supervision and selection of its employees. Aside from this
negligence it would not have occurred and
statement, LADECO did not proffer any proof to show how it
that thing which caused injury is shown to
exercised due diligence in the supervision and selection of its
employees. LADECO did not show its policy in hiring its have been under management and control
drivers, or the manner in which it supervised its of alleged wrongdoer. Hillen v. Hooker
drivers. LADECO failed to substantiate its allegation that it Const. Co., Tex. Civ. App., 484 S.W. 2d 133,
exercised due diligence in the supervision and selection of its 155. Under doctrine of "res ipsa
employees. loquitur" the happening of an injury permits
an inference of negligence where plaintiff
Hence, we hold LADECO solidarily liable with Deocampo. produces substantial evidence that injury
was caused by an agency or instrumentality
under exclusive control and management of
Respondent is Entitled to Moral Damages defendant, and that the occurrence was
such that in the ordinary course of things
We sustain the award of moral damages. Moral damages are would not happen if reasonable care had
awarded to allow a plaintiff to obtain means, diversion, or
been used.
amusement that will serve to alleviate the moral suffering he
has undergone due to the defendants culpable action. [20] The
trial court found that respondent, who was on board the pick- In this jurisdiction we have applied this doctrine in quite a
up when the collision took place, suffered shock, serious number of cases, notably in Africa et al. vs. Caltex, Inc., et
anxiety, and fright when the crewcab bumped his pick-up. We al., 35 and the latest is in the case of F.F. Cruz and Co., Inc. vs.
sustain the trial court and the Court of Appeals in ruling that CA. 36
respondent sufficiently showed that he suffered shock, serious
anxiety, and fright which entitle him to moral damages.
The doctrine of Res ipsa loquitur as a rule of evidence is
Both the trial court and the Court of Appeals failed to give any peculiar to the law of negligence which recognizes that
justification for the award of attorneys fees. Awards of prima facie negligence may be established without direct
attorneys fees must be based on findings of fact and of law proof and furnishes a substitute for specific proof of
and stated in the decision of the trial court. [21] Further, no negligence. 37 The doctrine is not a rule of substantive
premium should be placed on the right to litigate.[22] Hence, law 38 but merely a mode of proof or a mere procedural
we delete the award of attorneys fees. convenience. 39 The rule, when applicable to the facts and
circumstances of a particular case, is not intended to and
does not dispense with the requirement of proof of culpable
PEDRO T. LAYUGAN, petitioner, negligence on the part of the party charged. 40 It merely
vs. determines and regulates what shall be prima facie evidence
INTERMEDIATE APPELLATE COURT, GODOFREDO ISIDRO, thereof and facilitates the burden of plaintiff of proving a
and TRAVELLERS MULTI-INDEMNITY breach of the duty of due care. 41 The doctrine can be invoked
CORPORATION, respondents when and only when, under the circumstances involved, direct
evidence is absent and not readily available. 42 Hence, it has management of the defendant or his servants and the
generally been held that the presumption of inference arising accident is such as in ordinary course of things does not
from the doctrine cannot be availed of, or is overcome, where happen if those who have its management or control use
plaintiff has knowledge and testifies or presents evidence as proper care, it affords reasonable evidence, in the absence of
to the specific act of negligence which is the cause of the explanation by the defendant, that the accident arose from or
injury complained of or where there is direct evidence as to was caused by the defendant's want of care. 14
the precise cause of the accident and all the facts and
circumstances attendant on the occurrence clearly The doctrine of res ipsa loquitur is simply a recognition of the
appear. 43 Finally, once the actual cause of injury is postulate that, as a matter of common knowledge and
established beyond controversy, whether by the plaintiff or by experience, the very nature of certain types of occurrences
the defendant, no presumptions will be involved and the may justify an inference of negligence on the part of the
doctrine becomes inapplicable when the circumstances have person who controls the instrumentality causing the injury in
been so completely eludicated that no inference of the absence of some explanation by the defendant who is
defendant's liability can reasonably be made, whatever the charged with negligence. 15 It is grounded in the superior logic
source of the evidence, 44 as in this case. of ordinary human experience and on the basis of such
experience or common knowledge, negligence may be
The private respondent is sued under Art. 2176 in relation to deduced from the mere occurrence of the accident
Art. 2180, paragraph 5, of the Civil Code. In the latter, when itself. 16 Hence, res ipsa loquitur is applied in conjunction with
an injury is caused by the negligence of a servant or the doctrine of common knowledge.
employee there instantly arises a presumption of law that
there was negligence on the part of the master or employer However, much has been said that res ipsa loquitur is not a
either in the selection of the servant or employee, or in rule of substantive law and, as such, does not create or
supervision over him after selection, or both. Such constitute an independent or separate ground of
presumption is juris tantum and not juris et de jure and liability. 17 Instead, it is considered as merely evidentiary or in
consequently, may be rebutted. If follows necessarily that if the nature of a procedural rule. 18 It is regarded as a mode of
the employer shows to the satisfaction of the court that in the proof, or a mere procedural of convenience since it furnishes a
selection and in the supervision he has exercised the care and substitute for, and relieves a plaintiff of, the burden of
diligence of a good father of a family, the presumption is producing specific proof of negligence. 19 In other words, mere
overcome and he is relieved from liability. 45 In disclaiming invocation and application of the doctrine does not dispense
liability for the incident, the private respondent stresses that with the requirement of proof of negligence. It is simply a step
the negligence of his employee has already been adequately in the process of such proof, permitting the plaintiff to present
overcome by his driver's statement that he knew his along with the proof of the accident, enough of the attending
responsibilities as a driver and that the truck owner used to circumstances to invoke the doctrine, creating an inference or
instruct him to be careful in driving. 46 presumption of negligence, and to thereby place on the
defendant the burden of going forward with the proof. 20 Still,
We do not agree with the private respondent in his before resort to the doctrine may be allowed, the following
submission. In the first place, it is clear that the driver did not requisites must be satisfactorily shown:
know his responsibilities because he apparently did not check
his vehicle before he took it on the road. If he did he could 1. The accident is of a kind
have discovered earlier that the brake fluid pipe on the right which ordinarily does not
was cut, and could have repaired it and thus the accident occur in the absence of
could have been avoided. Moveover, to our mind, the fact that someone's negligence;
the private respondent used to intruct his driver to be careful
in his driving, that the driver was licensed, and the fact that
he had no record of any accident, as found by the respondent 2. It is caused by an
court, are not sufficient to destroy the finding of negligence of instrumentality within the
the Regional Trial Court given the facts established at the exclusive control of the
trial 47 The private respondent or his mechanic, who must be defendant or defendants;
competent, should have conducted a thorough inspection of and
his vehicle before allowing his driver to drive it. In the light of
the circumstances obtaining in the case, we hold that Isidro 3. The possibility of
failed to prove that the diligence of a good father of a family contributing conduct
in the supervision of his employees which would exculpate which would make the
him from solidary liability with his driver to the petitioner. But plaintiff responsible is
even if we concede that the diligence of a good father of a eliminated. 21
family was observed by Isidro in the supervision of his driver,
there is not an iota of evidence on record of the observance
In the above requisites, the fundamental element is the
by Isidro of the same quantum of diligence in the supervision
"control of instrumentality" which caused the damage. 22Such
of his mechanic, if any, who would be directly in charge in
element of control must be shown to be within the dominion
maintaining the road worthiness of his (Isidro's) truck. But that
of the defendant. In order to have the benefit of the rule, a
is not all. There is paucity of proof that Isidro exercised the
plaintiff, in addition to proving injury or damage, must show a
diligence of a good father of a family in the selection of his
situation where it is applicable, and must establish that the
driver, Daniel Serrano, as well as in the selection of his
essential elements of the doctrine were present in a particular
mechanic, if any, in order to insure the safe operation of his
incident. 23
truck and thus prevent damage to others. Accordingly, the
responsibility of Isidro as employer treated in Article 2180,
paragraph 5, of the Civil Code has not ceased. Medical malpractice 24 cases do not escape the application of
this doctrine. Thus, res ipsa loquitur has been applied when
the circumstances attendant upon the harm are themselves of
ROGELIO E. RAMOS and ERLINDA RAMOS, in their own
such a character as to justify an inference of negligence as
behalf and as natural guardians of the minors,
the cause of that harm. 25 The application of res ipsa
ROMMEL RAMOS, ROY RODERICK RAMOS and RON
loquitur in medical negligence cases presents a question of
RAYMOND RAMOS, petitioners,
law since it is a judicial function to determine whether a
vs.
certain set of circumstances does, as a matter of law, permit a
COURT OF APPEALS, DELOS SANTOS MEDICAL CENTER,
given inference. 26
DR. ORLINO HOSAKA and DRA. PERFECTA GUTIERREZ,

Res ipsa loquitur is a Latin phrase which literally means "the Although generally, expert medical testimony is relied upon in
thing or the transaction speaks for itself." The phrase "res ipsa malpractice suits to prove that a physician has done a
loquitur'' is a maxim for the rule that the fact of the negligent act or that he has deviated from the standard
occurrence of an injury, taken with the surrounding medical procedure, when the doctrine of res ipsa loquitur is
circumstances, may permit an inference or raise a availed by the plaintiff, the need for expert medical testimony
presumption of negligence, or make out a plaintiff's prima is dispensed with because the injury itself provides the proof
facie case, and present a question of fact for defendant to of negligence. 27 The reason is that the general rule on the
meet with an explanation. 13 Where the thing which caused necessity of expert testimony applies only to such matters
the injury complained of is shown to be under the clearly within the domain of medical science, and not to
matters that are within the common knowledge of mankind In view of the evidence at hand, we are inclined to believe
which may be testified to by anyone familiar with the petitioners' stand that it was the faulty intubation which was
facts. 28 Ordinarily, only physicians and surgeons of skill and the proximate cause of Erlinda's comatose condition.
experience are competent to testify as to whether a patient
has been treated or operated upon with a reasonable degree Proximate cause has been defined as that which, in natural
of skill and care. However, testimony as to the statements and continuous sequence, unbroken by any efficient
and acts of physicians and surgeons, external appearances, intervening cause, produces injury, and without which the
and manifest conditions which are observable by any one may result would not have occurred. 64 An injury or damage is
be given by non-expert witnesses. 29 Hence, in cases where proximately caused by an act or a failure to act, whenever it
the res ipsa loquitur is applicable, the court is permitted to appears from the evidence in the case, that the act or
find a physician negligent upon proper proof of injury to the omission played a substantial part in bringing about or
patient, without the aid of expert testimony, where the court actually causing the injury or damage; and that the injury or
from its fund of common knowledge can determine the proper damage was either a direct result or a reasonably probable
standard of care. 30 Where common knowledge and consequence of the act or omission. 65 It is the dominant,
experience teach that a resulting injury would not have moving or producing cause.
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 Applying the above definition in relation to the evidence at
evidence, which is ordinarily required to show not only what hand, faulty intubation is undeniably the proximate cause
occurred but how and why it occurred. 31 When the doctrine is which triggered the chain of events leading to Erlinda's brain
appropriate, all that the patient must do is prove a nexus damage and, ultimately, her comatosed condition.
between the particular act or omission complained of and the
injury sustained while under the custody and management of Private respondents themselves admitted in their testimony
the defendant without need to produce expert medical that the first intubation was a failure. This fact was likewise
testimony to establish the standard of care. Resort to res ipsa observed by witness Cruz when she heard respondent Dra.
loquitur is allowed because there is no other way, under usual Gutierrez remarked, "Ang hirap ma-intubate nito, mali yata
and ordinary conditions, by which the patient can obtain ang pagkakapasok. O lumalaki ang tiyan." Thereafter, witness
redress for injury suffered by him. Cruz noticed abdominal distention on the body of Erlinda. The
development of abdominal distention, together with
Thus, courts of other jurisdictions have applied the doctrine in respiratory embarrassment indicates that the endotracheal
the following situations: leaving of a foreign object in the body tube entered the esophagus instead of the respiratory tree. In
of the patient after an operation, 32 injuries sustained on a other words, instead of the intended endotracheal intubation
healthy part of the body which was not under, or in the area, what actually took place was an esophageal intubation.
of treatment, 33 removal of the wrong part of the body when During intubation, such distention indicates that air has
another part was intended, 34 knocking out a tooth while a entered the gastrointestinal tract through the esophagus
patient's jaw was under anesthetic for the removal of his instead of the lungs through the trachea. Entry into the
tonsils, 35 and loss of an eye while the patient plaintiff was esophagus would certainly cause some delay in oxygen
under the influence of anesthetic, during or following an delivery into the lungs as the tube which carries oxygen is in
operation for appendicitis, 36 among others. the wrong place. That abdominal distention had been
observed during the first intubation suggests that the length
of time utilized in inserting the endotracheal tube (up to the
Nevertheless, despite the fact that the scope of res ipsa time the tube was withdrawn for the second attempt) was
loquitur has been measurably enlarged, it does not fairly significant. Due to the delay in the delivery of oxygen in
automatically apply to all cases of medical negligence as to her lungs Erlinda showed signs of cyanosis. 66 As stated in the
mechanically shift the burden of proof to the defendant to testimony of Dr. Hosaka, the lack of oxygen became apparent
show that he is not guilty of the ascribed negligence. Res ipsa only after he noticed that the nailbeds of Erlinda were already
loquitur is not a rigid or ordinary doctrine to be perfunctorily blue. 67 However, private respondents contend that a second
used but a rule to be cautiously applied, depending upon the intubation was executed on Erlinda and this one was
circumstances of each case. It is generally restricted to successfully done. We do not think so. No evidence exists on
situations in malpractice cases where a layman is able to say, record, beyond private respondents' bare claims, which
as a matter of common knowledge and observation, that the supports the contention that the second intubation was
consequences of professional care were not as such as would successful. Assuming that the endotracheal tube finally found
ordinarily have followed if due care had been its way into the proper orifice of the trachea, the same gave
exercised. 37 A distinction must be made between the failure no guarantee of oxygen delivery, the hallmark of a successful
to secure results, and the occurrence of something more intubation. In fact, cyanosis was again observed immediately
unusual and not ordinarily found if the service or treatment after the second intubation. Proceeding from this event
rendered followed the usual procedure of those skilled in that (cyanosis), it could not be claimed, as private respondents
particular practice. It must be conceded that the doctrine insist, that the second intubation was accomplished. Even
of res ipsa loquitur can have no application in a suit against a granting that the tube was successfully inserted during the
physician or surgeon which involves the merits of a diagnosis second attempt, it was obviously too late. As aptly explained
or of a scientific treatment. 38 The physician or surgeon is not by the trial court, Erlinda already suffered brain damage as a
required at his peril to explain why any particular diagnosis result of the inadequate oxygenation of her brain for about
was not correct, or why any particular scientific treatment did four to five minutes. 68
not produce the desired result. 39 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 The above conclusion is not without basis. Scientific studies
accomplished. 40 The real question, therefore, is whether or point out that intubation problems are responsible for one-
not in the process of the operation any extraordinary incident third (1/3) of deaths and serious injuries associated with
or unusual event outside of the routine performance occurred anesthesia. 69 Nevertheless, ninety-eight percent (98%) or the
which is beyond the regular scope of customary professional vast majority of difficult intubations may be anticipated by
activity in such operations, which, if unexplained would performing a thorough evaluation of the patient's airway prior
themselves reasonably speak to the average man as the to the operation. 70 As stated beforehand, respondent Dra.
negligent cause or causes of the untoward consequence. 41 If Gutierrez failed to observe the proper pre-operative protocol
there was such extraneous interventions, the doctrine of res which could have prevented this unfortunate incident. Had
ipsa loquitur may be utilized and the defendant is called upon appropriate diligence and reasonable care been used in the
to explain the matter, by evidence of exculpation, if he pre-operative evaluation, respondent physician could have
could. 42 been much more prepared to meet the contingency brought
about by the perceived anatomic variations in the patient's
neck and oral area, defects which would have been easily
We find the doctrine of res ipsa loquitur appropriate in the overcome by a prior knowledge of those variations together
case at bar. As will hereinafter be explained, the damage with a change in technique. 71 In other words, an experienced
sustained by Erlinda in her brain prior to a scheduled gall anesthesiologist, adequately alerted by a thorough pre-
bladder operation presents a case for the application of res operative evaluation, would have had little difficulty going
ipsa loquitur. around the short neck and protruding teeth. 72 Having failed to
observe common medical standards in pre-operative
management and intubation, respondent Dra. Gutierrez'
negligence resulted in cerebral anoxia and eventual coma of which only the courts have the final say. Such a conclusion
Erlinda. binds no one until the courts have decreed so. It appears,
therefore, that the principle that ignorance or mistake of fact
nullifies a waiver has been misapplied in Floresca and in the
G.R. No. 137873 April 20, 2001 case at bar.

D. M. CONSUNJI, INC., petitioner, In any event, there is no proof that private respondent knew
vs. that her husband died in the elevator crash when on
COURT OF APPEALS and MARIA J. JUEGO November 15, 1990 she accomplished her application for
benefits from the ECC. The police investigation report is dated
When a party having knowledge of the facts makes an November 25, 1990, 10 days after the accomplishment of the
election between inconsistent remedies, the election is final form. Petitioner filed the application in her behalf on
and bars any action, suit, or proceeding inconsistent with the November 27, 1990.
elected remedy, in the absence of fraud by the other party.
The first act of election acts as a bar.37 Equitable in nature, the There is also no showing that private respondent knew of the
doctrine of election of remedies is designed to mitigate remedies available to her when the claim before the ECC was
possible unfairness to both parties. It rests on the moral filed. On the contrary, private respondent testified that she
premise that it is fair to hold people responsible for their was not aware of her rights.
choices. The purpose of the doctrine is not to prevent any
recourse to any remedy, but to prevent a double redress for a
single wrong.38 Petitioner, though, argues that under Article 3 of the Civil
Code, ignorance of the law excuses no one from compliance
therewith. As judicial decisions applying or interpreting the
The choice of a party between inconsistent remedies results in laws or the Constitution form part of the Philippine legal
a waiver by election. Hence, the rule in Floresca that a system (Article 8, Civil Code), private respondent cannot claim
claimant cannot simultaneously pursue recovery under the ignorance of this Courts ruling in Floresca allowing a choice of
Labor Code and prosecute an ordinary course of action under remedies.
the Civil Code. The claimant, by his choice of one remedy, is
deemed to have waived the other.
The argument has no merit. The application of Article 3 is
limited to mandatory and prohibitory laws.42 This may be
Waiver is the intentional relinquishment of a known right.39 deduced from the language of the provision, which,
notwithstanding a persons ignorance, does not excuse his or
[It] is an act of understanding that presupposes that her compliance with the laws. The rule in Floresca allowing
a party has knowledge of its rights, but chooses not private respondent a choice of remedies is neither mandatory
to assert them. It must be generally shown by the nor prohibitory. Accordingly, her ignorance thereof cannot be
party claiming a waiver that the person against held against her.
whom the waiver is asserted had at the time
knowledge, actual or constructive, of the existence of Finally, the Court modifies the affirmance of the award of
the partys rights or of all material facts upon which damages. The records do not indicate the total amount
they depended. Where one lacks knowledge of a private respondent ought to receive from the ECC, although it
right, there is no basis upon which waiver of it can appears from Exhibit "K"43 that she received P3,581.85 as
rest. Ignorance of a material fact negates waiver, and initial payment representing the accrued pension from
waiver cannot be established by a consent given November 1990 to March 1991. Her initial monthly pension,
under a mistake or misapprehension of fact. according to the same Exhibit "K," was P596.97 and present
total monthly pension was P716.40. Whether the total amount
A person makes a knowing and intelligent waiver she will eventually receive from the ECC is less than the sum
when that person knows that a right exists and has of P644,000.00 in total damages awarded by the trial court is
adequate knowledge upon which to make an subject to speculation, and the case is remanded to the trial
intelligent decision. court for such determination. Should the trial court find that
its award is greater than that of the ECC, payments already
received by private respondent under the Labor Code shall be
Waiver requires a knowledge of the facts basic to the deducted from the trial court' award of damages. Consistent
exercise of the right waived, with an awareness of its with our ruling in Floresca, this adjudication aims to prevent
consequences. That a waiver is made knowingly and double compensation.
intelligently must be illustrated on the record or by
the evidence.40
.

That lack of knowledge of a fact that nullifies the election of a


remedy is the basis for the exception in Floresca.

It is in light of the foregoing principles that we address


petitioners contentions.
FAR EASTERN SHIPPING COMPANY, petitioner, vs. COURT OF
APPELAS and PHILIPPINE PORTS
Waiver is a defense, and it was not incumbent upon private AUTHORITY, respondents.
respondent, as plaintiff, to allege in her complaint that she [G.R. No. 130150. October 1, 1998]
had availed of benefits from the ECC. It is, thus, erroneous for MANILA PILOTS ASSOCIATION, petitioner,
petitioner to burden private respondent with raising waiver as vs. PHILIPPINE PORTS AUTHORITY and FAR EASTERN
an issue. On the contrary, it is the defendant who ought to SHIPPING COMPANY, respondents
plead waiver, as petitioner did in pages 2-3 of its
Answer;41 otherwise, the defense is waived. It is, therefore, City of Manila stands for the doctrine that the pilot who
perplexing for petitioner to now contend that the trial court was in command and complete control of a vessel, and not
had no jurisdiction over the issue when petitioner itself the owners, must be held responsible for an accident which
pleaded waiver in the proceedings before the trial court. was solely the result of the mistake of the pilot in not giving
proper orders, and which did not result from the failure of the
Does the evidence show that private respondent knew of the owners to equip the vessel with the most modern and
facts that led to her husbands death and the rights pertaining improved machinery. In China Navigation Co., the pilot
to a choice of remedies? deviated from the ordinary and safe course, without heeding
the warnings of the ship captain. It was this careless deviation
that caused the vessel to collide with a pinnacle rock which,
It bears stressing that what negates waiver is lack of though uncharted, was known to pilots and local
knowledge or a mistake of fact. In this case, the "fact" that navigators. Obviously, the captain was blameless. It was the
served as a basis for nullifying the waiver is the negligence of negligence of the pilot alone which was the proximate cause
petitioners employees, of which private respondent of the collision. The Court could not but then rule that -
purportedly learned only after the prosecutor issued a
resolution stating that there may be civil liability. In Floresca,
it was the negligence of the mining corporation and The pilot in the case at bar having deviated from the
its violation of government rules and regulations. Negligence, usual and ordinary course followed by navigators in passing
or violation of government rules and regulations, for that through the strait in question, without a substantial reason,
matter, however, is not a fact, but a conclusion of law, over was guilty of negligence, and that negligence having been the
proximate cause of the damages, he is liable for such SPOUSES QUEDO D. ACOGIDO and FLOTILDE G.
damages as usually and naturally flow therefrom. x x x. VILLEGAS, respondents

x x x (T)he defendant should have known of the This doctrine [res ipsa loquitur] is stated thus: "Where
existence and location of the rock upon which the vessel the thing which causes injury is shown to be under the
struck while under his control and management. x x x. management of the defendant, and the accident is such as in
the ordinary course of things does not happen if those who
Consistent with the pronouncements in these two earlier have the management use proper care, it affords reasonable
cases, but on a slightly different tack, the Court in Yap Tico & evidence, in the absence of an explanation by the defendant,
Co. exonerated the pilot from liability for the accident where that the accident arose from want of care." Or as Black's Law
the order's of the pilot in the handling of the ship were Dictionary puts it:
disregarded by the officers and crew of the ship. According to
the Court, a pilot is "x x x responsible for a full knowledge of
Res ipsa loquitur. The thing speaks for itself. Rebuttable
the channel and the navigation only so far as he can
accomplish it through the officers and crew of the ship, and I presumption or inference that defendant was negligent, which
don't see that he can be held responsible for damage when arises upon proof that [the] instrumentality causing injury was
the evidence shows, as it does in this case, that the officers in defendant's exclusive control, and that the accident was
and crew of the ship failed to obey his orders." Nonetheless, it one which ordinary does not happen in absence of
is possible for a compulsory pilot and the master of the vessel negligence. Res ipsa loquitur is [a] rule of evidence whereby
to be concurrently negligent and thus share the blame for the negligence of [the] alleged wrongdoer may be inferred from
resulting damage as Joint tortfeasors, [98] but only under the [the] mere fact that [the] accident happened provided [the]
circumstances obtaining in and demonstrated by the instant character of [the] accident and circumstances attending it
petitions. lead reasonably to belief that in [the] absence of negligence it
would not have occurred and that thing which caused injury is
It may be said, as a general rule, that negligence in
shown to have been under [the] management and control of
order to render a person liable need not be the sole cause of
an injury. It is sufficient that his negligence, concurring with [the] alleged wrongdoer . . . . Under [this] doctrine . . . the
one or more efficient causes other than plaintiff's, is the happening of an injury permits an inference of negligence
proximate cause of the injury. Accordingly, where several where plaintiff produces substantial evidence that [the] injury
causes combine to produce injuries, a person is not relieved was caused by an agency or instrumentality under [the]
from liability because he is responsible for only one of them, it exclusive control and management of defendant, and that the
being sufficient that the negligence of the person charged occurrence [sic] was such that in the ordinary course of things
with injury is an efficient cause without which the injury would would not happen if reasonable care had been used.
not have resulted to as great an extent, and that such cause
is not attributable to the person injured. It is no defense to
one of the concurrent tortfeasors that the injury would not xxx xxx xxx
have resulted from his negligence alone, without the
negligence or wrongful acts of the other concurrent tortfeasor. The doctrine of [r]es ipsa loquitur as a rule of evidence is
[99]
Where several causes producing an injury are concurrent peculiar to the law of negligence which recognizes that prima
and each is an efficient cause without which the injury would facie negligence may be established without direct proof and
not have happened, the injury may be attributed to all or any furnishes a substitute for specific proof of negligence. The
of the causes and recovery may be had against any or all of
doctrine is not a rule of substantive law, but merely a mode of
the responsible persons although under the circumstances of
proof or a mere procedural convenience. The rule, when
the case, it may appear that one of them was more culpable,
and that the duty owed by them to the injured person was not applicable to the facts and circumstances of a particular case,
the same. No actor's negligence ceases to be a proximate is not intended to and does not dispense with the requirement
cause merely because it does not exceed the negligence of of proof of culpable negligence on the party charged. It merely
other actors. Each wrongdoer is responsible for the entire determines and regulates what shall be prima facie evidence
result and is liable as though his acts were the sole cause of thereof and facilitates the burden of plaintiff of proving a
the injury.[100] breach of the duty of due care. The doctrine can be invoked
when and only when, under the circumstances involved, direct
There is no contribution between joint tortfeasors whose evidence is absent and not readily available.[36]
liability is solidary since both of them are liable for the total
damage. Where the concurrent or successive negligent acts or
omissions of two or more persons, although acting In the instant case, all the requisites for recourse to the
independently, are in combination the direct and proximate doctrine are present. First, the entire proceedings of the
cause of a single injury to a third person, it is impossible to cesarean section were under the exclusive control of Dr.
determine in what proportion each contributed to the injury Batiquin. In this light, the private respondents were bereft of
and either of them is responsible for the whole injury. Where direct evidence as to the actual culprit or the exact cause of
their concurring negligence resulted in injury or damage to a the foreign object finding its way into private respondent
third party, they become joint tortfeasors and are solidarity Villegas' body, which, needless to say, does not occur unless
liable for the resulting damage under Article 2194[101] of the through the intervention of negligence. Second, since aside
Civil Code. from the cesarean section, private respondent Villegas
No reliance can be placed by MPA on the cited American underwent no other operation which could have caused the
rulings as to immunity from liability of a pilots' association in offending piece of rubber to appear in her uterus, it stands to
light of existing positive regulation under Philippine law. The reason that such could only have been a by-product of the
Court of Appeals properly applied the clear and unequivocal cesarean section performed by Dr. Batiquin. The petitioners,
provisions of Customs Administrative Order No. 15-65. In in this regard, failed to overcome the presumption of
doing so, it was just being consistent with its finding of the negligence arising from resort to the doctrine of res ipsa
non-existence of employer-employee relationship between loquitur. Dr. Batiquin is therefore liable for negligently leaving
MPA and Capt. Gavino precludes the application of Article behind a piece of rubber in private respondent Villegas'
2180 of the Civil Code. abdomen and for all the adverse effects thereof.
True, Customs Administrative Order No. 15-65 does not
categorically characterize or label MPA's liability as solidary in PROFESSIONAL SERVICES, INC., Petitioner,
nature. Nevertheless, a careful reading and proper analysis of vs.
the correlated provisions lead to the conclusion that MPA is NATIVIDAD and ENRIQUE AGANA, Respondents.
solidarity liable for the negligence of its member pilots, x-----------------------x
without prejudice to subsequent reimbursement from the pilot G.R. No. 126467 January 31, 2007
at fault. NATIVIDAD (Substituted by her children MARCELINO
AGANA III, ENRIQUE AGANA, JR., EMMA AGANA
Article 1207 of the Civil Code provides that there is solidary ANDAYA, JESUS AGANA, and RAYMUND AGANA) and
liability only when the obligation expressly so states, or when ENRIQUE AGANA, Petitioners,
the law or the nature of the obligation requires vs.
solidarity.Plainly, Customs Administrative Order No. 15-65, JUAN FUENTES, Respondent.
which as an implementing rule has the force and effect of law, x- - - - - - - - - - - - - - - - - - - -- - - - x
can validly provide for solidary liability. G.R. No. 127590 January 31, 2007
MIGUEL AMPIL, Petitioner,
DR. VICTORIA L. BATIQUIN and ALLAN vs.
BATIQUIN, petitioners, vs. COURT OF APPEALS, NATIVIDAD AGANA and ENRIQUE AGANA, Respondents.
Literally, res ipsa loquitur means "the thing speaks for itself." Ampil. The latter examined it and finding everything to be in
It is the rule that the fact of the occurrence of an injury, taken order, allowed Dr. Fuentes to leave the operating room. Dr.
with the surrounding circumstances, may permit an inference Ampil then resumed operating on Natividad. He was about to
or raise a presumption of negligence, or make out a plaintiffs finish the procedure when the attending nurses informed him
prima facie case, and present a question of fact for defendant that two pieces of gauze were missing. A "diligent search" was
to meet with an explanation.13 Stated differently, where the conducted, but the misplaced gauzes were not found. Dr.
thing which caused the injury, without the fault of the injured, Ampil then directed that the incision be closed. During this
is under the exclusive control of the defendant and the injury entire period, Dr. Fuentes was no longer in the operating room
is such that it should not have occurred if he, having such and had, in fact, left the hospital.
control used proper care, it affords reasonable evidence, in
the absence of explanation that the injury arose from the
Under the "Captain of the Ship" rule, the operating surgeon is
defendants want of care, and the burden of proof is shifted to
the person in complete charge of the surgery room and all
him to establish that he has observed due care and
personnel connected with the operation. Their duty is to obey
diligence.14
his orders.16 As stated before, Dr. Ampil was the lead surgeon.
In other words, he was the "Captain of the Ship." That he
From the foregoing statements of the rule, the requisites for discharged such role is evident from his following conduct: (1)
the applicability of the doctrine of res ipsa loquitur are: (1) the calling Dr. Fuentes to perform a hysterectomy; (2) examining
occurrence of an injury; (2) the thing which caused the injury the work of Dr. Fuentes and finding it in order; (3) granting Dr.
was under the control and management of the defendant; (3) Fuentes permission to leave; and (4) ordering the closure of
the occurrence was such that in the ordinary course of things, the incision. To our mind, it was this act of ordering the
would not have happened if those who had control or closure of the incision notwithstanding that two pieces of
management used proper care; and (4) the absence of gauze remained unaccounted for, that caused injury to
explanation by the defendant. Of the foregoing requisites, the Natividads body. Clearly, the control and management of the
most instrumental is the "control and management of the thing which caused the injury was in the hands of Dr. Ampil,
thing which caused the injury."15 not Dr. Fuentes.

We find the element of "control and management of the thing In this jurisdiction, res ipsa loquitur is not a rule of substantive
which caused the injury" to be wanting. Hence, the doctrine of law, hence, does not per se create or constitute an
res ipsa loquitur will not lie. independent or separate ground of liability, being a mere
evidentiary rule.17 In other words, mere invocation and
application of the doctrine does not dispense with the
It was duly established that Dr. Ampil was the lead surgeon
requirement of proof of negligence. Here, the negligence was
during the operation of Natividad. He requested the
proven to have been committed by Dr. Ampil and not by Dr.
assistance of Dr. Fuentes only to perform hysterectomy when
Fuentes.
he (Dr. Ampil) found that the malignancy in her sigmoid area
had spread to her left ovary. Dr. Fuentes performed the
surgery and thereafter reported and showed his work to Dr.