ROBERTO C. SICAM and AGENCIA de R.C. SICAM, INC. vs.
Sicam’s testimony, in effect, contradicts petitioners’
SPOUSES JORGE
G.R. No. 159617, August 8, 2007
FACTS: On different dates, Lulu Jorge pawned several pieces of jewelry
with Agencia de R. C. Sicam located in Parañaque to secure a loan.
On October 19, 1987, two armed men entered the pawnshop and took
away whatever cash and jewelry were found inside the pawnshop vault.
On the same date, Sicam sent Lulu a letter informing her of the loss of
her jewelry due to the robbery incident in the pawnshop. Respondent
Lulu then wroteback expressing disbelief, then requested Sicam to
prepare the pawned jewelry for withdrawal on November 6, but Sicam
failed to return the jewelry.
Lulu, joined by her husband Cesar, filed a complaint against Sicam with
the RTC of Makati seeking indemnification for the loss of pawned
jewelry and payment of AD, MD and ED as well as AF.
The RTC rendered its Decision dismissing respondents’ complaint as
well as petitioners’ counterclaim. Respondents appealed the RTC
Decision to the CA which reversed the RTC, ordering the appellees to
pay appellants the actual value of the lost jewelry and AF. Petitioners
MR denied, hence the instant petition for review on Certiorari.
ISSUE: are the petitioners liable for the loss of the pawned articles in
their possession? (Petitioners insist that they are not liable since
robbery is a fortuitous event and they are not negligent at all.)
HELD: The Decision of the CA is AFFIRMED.
YES
Article 1174 of the Civil Code 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.
Fortuitous events by definition are extraordinary events not foreseeable
or avoidable. It is therefore, not enough that the event should not have
been foreseen or anticipated, as is commonly believed but it must be
one impossible to foresee or to avoid. The mere difficulty to foresee
the happening is not impossibility to foresee the same.
To constitute a fortuitous event, the following elements must concur:
(a) the cause of the unforeseen and unexpected occurrence
or of the failure of the debtor to comply with obligations
must be independent of human will;
(b) it must be impossible to foresee the event that
constitutes the caso fortuito or, if it can be foreseen, it must
be impossible to avoid;
(c) the occurrence must be such as to render it impossible for
the debtor to fulfill obligations in a normal manner; and,
(d) the obligor must be free from any participation in the
aggravation of the injury or loss.
The burden of proving that the loss was due to a fortuitous event rests
on him who invokes it. And, in order for a fortuitous event to exempt
one from liability, it is necessary that one has committed no negligence
or misconduct that may have occasioned the loss.
Sicam had testified that there was a security guard in their pawnshop
at the time of the robbery. He likewise testified that when he started
the pawnshop business in 1983, he thought of opening a vault with the
nearby bank for the purpose of safekeeping the valuables but was
discouraged by the Central Bank since pawned articles should only be
stored in a vault inside the pawnshop. The very measures which
petitioners had allegedly adopted show that to them the possibility of
robbery was not only foreseeable, but actually foreseen and
anticipated.
defense of fortuitous event.
Moreover, petitioners failed to show that they were free from any
negligence by which the loss of the pawned jewelry may have been
occasioned.
Robbery per se, just like carnapping, is not a fortuitous event. It does
not foreclose the possibility of negligence on the part of herein
petitioners.
Petitioners merely presented the police report of the Parañaque Police
Station on the robbery committed based on the report of petitioners’
employees which is not sufficient to establish robbery. Such report also
does not prove that petitioners were not at fault. On the contrary, by
the very evidence of petitioners, the CA did not err in finding that
petitioners are guilty of concurrent or contributory negligence as
provided in Article 1170 of the Civil Code, to wit:
Art. 1170. Those who in the performance of their obligations are guilty
of fraud, negligence, or delay, and those who in any manner
contravene the tenor thereof, are liable for damages.
**
Article 2123 of the Civil Code provides that with regard to pawnshops
and other establishments which are engaged in making loans secured
by pledges, the special laws and regulations concerning them shall be
observed, and subsidiarily, the provisions on pledge, mortgage and
antichresis.
The provision on pledge, particularly Article 2099 of the Civil Code,
provides that the creditor shall take care of the thing pledged with the
diligence of a good father of a family. This means that petitioners must
take care of the pawns the way a prudent person would as to his own
property.
In this connection, Article 1173 of the Civil Code further provides:
Art. 1173. The fault or negligence of the obligor consists in the
omission of that diligence which is required by the nature of the
obligation and corresponds with the circumstances of the persons, of
time and of the place. When negligence shows bad faith, the provisions
of Articles 1171 and 2201, paragraph 2 shall apply.
If the law or contract does not state the diligence which is to be
observed in the performance, that which is expected of a good father
of a family shall be required.
We expounded in Cruz v. Gangan that 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. It is want of care required by the circumstances.
A review of the records clearly shows that petitioners failed to exercise
reasonable care and caution that an ordinarily prudent person would
have used in the same situation. Petitioners were guilty of negligence
in the operation of their pawnshop business. Sicam’s testimony
revealed that there were no security measures adopted by petitioners
in the operation of the pawnshop. Evidently, no sufficient precaution
and vigilance were adopted by petitioners to protect the pawnshop
from unlawful intrusion. There was no clear showing that there was any
security guard at all. Or if there was one, that he had sufficient training
in securing a pawnshop. Further, there is no showing that the alleged
security guard exercised all that was necessary to prevent any
untoward incident or to ensure that no suspicious individuals were
allowed to enter the premises. In fact, it is even doubtful that there was
a security guard, since it is quite impossible that he would not have
Torts 2nd set Digests Page 1 of 12
noticed that the robbers were armed with caliber .45 pistols each,
which were allegedly poked at the employees. Significantly, the alleged
security guard was not presented at all to corroborate petitioner
Sicam’s claim; not one of petitioners’ employees who were present
during the robbery incident testified in court.
Furthermore, petitioner Sicam’s admission that the vault was open at
the time of robbery is clearly a proof of petitioners’ failure to observe
the care, precaution and vigilance that the circumstances justly
demanded.
The robbery in this case happened in petitioners’ pawnshop and they
were negligent in not exercising the precautions justly demanded of a
pawnshop.
NOTES:
We, however, do not agree with the CA when it found petitioners
negligent for not taking steps to insure themselves against loss of the
pawned jewelries.
Under Section 17 of Central Bank Circular No. 374, Rules and
Regulations for Pawnshops, which took effect on July 13, 1973, and
which was issued pursuant to Presidential Decree No. 114, Pawnshop
Regulation Act, it is provided that pawns pledged must be insured, to
wit:
Sec. 17. Insurance of Office Building and Pawns- The place of business
of a pawnshop and the pawns pledged to it must be insured against
fire and against burglary as well as for the latter(sic), by an insurance
company accredited by the Insurance Commissioner.
However, this Section was subsequently amended by CB Circular No.
764 which took effect on October 1, 1980, to wit:
Sec. 17 Insurance of Office Building and Pawns – The office
building/premises and pawns of a pawnshop must be insured against
fire. (emphasis supplied).
where the requirement that insurance against burglary was deleted.
Obviously, the Central Bank considered it not feasible to require
insurance of pawned articles against burglary.
The robbery in the pawnshop happened in 1987, and considering the
above-quoted amendment, there is no statutory duty imposed on
petitioners to insure the pawned jewelry in which case it was error for
the CA to consider it as a factor in concluding that petitioners were
negligent.
Nevertheless, the preponderance of evidence shows that petitioners
failed to exercise the diligence required of them under the Civil Code.
Heirs of Completo v. Albayda, Jr.
Heirs of Redentor Completo, and Elpidio Abiad v. Sgt. Amando
Albayda, Jr.
2010 / Nachura [Negilgence > Standard of conduct > Special
circumstance]
Facts
Albayda is a Master Sergeant of the PH Air Force, and
Completo was the taxi driver of a Toyota Corolla which was owned by
Abiad. Albayda was riding a bike on his way to the office, when
Completo’s taxi bumped and sideswept him, causing serious physical
injuries. He [Albayda] was brought to the PH Air Force General
Hospital, but he was transferred to the AFP Medical Center because he
sustained a fracture and there was no orthopedic doctor available in
the first hospital. He was confined from 27 Aug 1997 to 11 Feb 1998,
and again in 23 Feb to 22 Mar 1998 [approx. 7 months].
Conciliation before the barangay failed, so Albayda filed a complaint
for physical injuries through reckless imprudence against Completo
before the Office of the City Prosecutor of Pasay. Completo filed a
counter-charge of damage to property through reckless imprudence
against Albayda. The Office of the City Prosecutor recommended the
filing of an information for Albayda’s complaint, and Completo’s
complaint [against Albayda] was dismissed. Albayda manifested his
reservation to file a separate civil action for damages against Completo
and Abiad.
Albayda alleged that Completo’s negligence is the proximate cause
of the incident. He demanded the following damages and their
respective amounts: Actual damages – 276,550; Moral damages –
600,000; Exemplary damages – 200,000; Attorney’s fees – 25,000 +
1,000 per court appearance.
On the other hand, Completo alleged that he was carefully driving
the taxicab when he heard a strange sound from the taxicab’s rear right
side. He found Albayda lying on the road, holding his left leg, so he
brought Albayda to PH Air Force General Hospital. Completo asserted
that he was an experienced driver, and that he already reduced his
speed to 20km even before reaching the intersection. In contrast,
Albayda rode his bicycle at high speed, causing him to lose control of
the bicycle. Completo said that Albayda had no cause of action.
Several people testified for each side, but here are some notes on
the testimony of the owner of the taxi driver, Abiad. Abiad said that
aside from being a soldier, he also held franchises of taxicabs and
passenger jeepneys, and being a taxicab operator, he would wake up
early to personally check the taxicabs. When Completo applied as a
taxicab driver, Abiad required him to show his bio-data, NBI clearance,
and driver’s license. Completo never figured in a vehicular accident
since he was employed, and according to Abiad, he [Completo] was a
good driver and good man.
RTC rendered judgment in favor of Albayda, and the defendants are
ordered to pay actual [46k] and moral [400k] damages, and attorney’s
fees [25k]. Upon appeal at the CA, the court affirmed RTC’s decision
with modifications [no more actual damages; awarded temperate
damages [40k]; moral damages only 200k; Completo and Abiad are
solidarily liable to pay Albayda; added legal interest].
Issues and Holding
1. WON CA erred in finding that Completo was the one who
caused the collision. NO
2. WON Abiad failed to prove that he observed the diligence of a
good father of the family. YES
3. WON the award of moral and temperate damages and
attorney’s fees for Albayda had no basis. NO / NO / YES
4.
Ratio
On Negligence
It is a rule in negligence suits that the plaintiff has the burden of
proving by a preponderance of evidence the motorist’s breach in his
duty of care owed to the plaintiff, that the motorist was negligent in
failing to exercise the diligence required to avoid injury to the plaintiff,
and that such negligence was the proximate cause of the injury
suffered. NCC 2176 quoted, and said that the question of the
motorist’s negligence is a question of fact. Usually, more will be
required of a motorist [25mi/hr = 37ft/sec] than a bicyclist [10mi/hr =
15ft/sec] in discharging the duty of care because of the physical
advantages the former has over the latter.
Torts 2nd set Digests Page 2 of 12
 It was proven by a preponderance of evidence that Completo failed to
exercise reasonable diligence.
 He was overspeeding at the time he hit Albayda’s bicycle; he did
not slow down even when he approached the intersection
 Such negligence was the sole and proximate cause of the injuries
sustained by Albayda
 It was proven that Albayda had the right of way since he reached
the intersection ahead of Completo
NCC 2180 cited – obligation imposed by NCC 2176 is demandable also
for those persons for whom one is responsible. Employers are liable for
damage caused by employees, but the responsibility ceases upon
proof that employers observed the diligence of the good father of the
family in the selection and supervision of employees. The burden of
proof is on the employer. The responsibility of two or more persons
who are liable for QD is solidary. The employer’s civil liability for his
employee’s negligent acts is also primary and direct, owing to his own
negligence in selecting and supervising them, and this liability attaches
even if the employer is not in the vehicle at the time of collision.
In the selection of employees, employers are required to examine
them as to their qualifications, experience, and service records. With
respect to supervision, employers should formulate SOPs and monitor
their implementation, and impose disciplinary measures for
breaches. To establish these factors in a trial involving the issue of
vicarious [secondary] liability, employers must submit concrete proof,
including documentary evidence.
ABIAD’S EVIDENCE CONSISTED ENTIRELY OF TESTIMONIAL EVIDENCE,
AND THIS IS INSUFFICIENT TO OVERCOME THE LEGAL PRESUMPTION
THAT HE WAS NEGLIGENT IN THE SELECTION AND SUPERVISION OF
COMPLETO.
On Damages
CA rightfully deleted the award of actual damages because Albayda
failed to present documentary evidence to establish the amount
incurred. Temperate damages may be recovered when the court finds
that some pecuniary loss has been suffered but its amount cannot be
proved with certainty. Moral damages are awarded in QDs causing
physical injuries, so the award is proper. The award of attorney’s fees is
deleted for failure to prove that petitioners acted in bad faith in
refusing to satisfy respondent’s just and valid claim.
SPOUSES PACIS VS. MORALES
G.R. No. 169467
February 25, 2010
FACTS: petitioners filed with the trial court a civil case for damages
against respondent Morales.
Petitioners are the parents of Alfred Pacis, a 17-year old student who
died in a shooting incident inside the Top Gun Firearms and
Ammunitions Store in Baguio City. Morales is the owner of the gun
store.
On the fateful day, Alfred was in the gun store, with Matibag and
Herbolario as sales agents and caretakers of the store while owner
Morales was in Manila. The gun which killed Alfred is a gun owned by a
store customer which was left with Morales for repairs, which he placed
inside a drawer. Since Morales would be going to Manila, he left the
keys to the store with the caretakers. It appears that the caretakers
took the gun from the drawer and placed it on top of a table. Attracted
by the sight of the gun, the young Alfred got hold of the same.
Matibag asked Alfred to return the gun. The latter followed and
handed the gun to Matibag. It went off, the bullet hitting the young
Alfred in the head.
A criminal case for homicide was filed against Matibag. Matibag,
however, was acquitted of the charge against him because of the
exempting circumstance of “accident” under Art. 12, par. 4 of the RPC.
By agreement of the parties, the evidence adduced in the criminal case
for homicide against Matibag was reproduced and adopted by them as
part of their evidence in the instant case.
The trial court rendered its decision in favor of petitioners, ordering the
defendant to pay plaintiffs indemnity for the death of Alfred, actual
damages for the hospitalization and burial, expenses incurred by the
plaintiffs, compensatory damages, MD and AF.
Respondent appealed to the CA, which reversed the trial court’s
Decision and absolved respondent from civil liability under Article 2180
of the Civil Code. MR denied, hence this petition.
ISSUE: Was Morales negligent?
HELD: Petition granted. The CA decision is set aside and the trial
court’s Decision reinstated.
YES
This case for damages arose out of the accidental shooting of
petitioners’ son. Under Article 1161 of the Civil Code, petitioners may
enforce their claim for damages based on the civil liability arising from
the crime under Article 100 of the RPC or they may opt to file an
independent civil action for damages under the Civil Code. In this case,
instead of enforcing their claim for damages in the homicide case filed
against Matibag, petitioners opted to file an independent civil action
for damages against respondent whom they alleged was Matibag’s
employer. Petitioners based their claim for damages under Articles
2176 and 2180 of the Civil Code.
**
Unlike the subsidiary liability of the employer under Article 103 of the
RPC, the liability of the employer, or any person for that matter, under
Article 2176 of the Civil Code is primary and direct, based on a person’s
own negligence. Article 2176 states:
Art. 2176. Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage done.
Such fault or negligence, if there is no pre-existing contractual relation
between the parties, is called quasi-delict and is governed by the
provisions of this Chapter.
This case involves the accidental discharge of a firearm inside a gun
store. Under PNP Circular No. 9, entitled the “Policy on Firearms and
Ammunition Dealership/Repair,” a person who is in the business of
purchasing and selling of firearms and ammunition must maintain
basic security and safety requirements of a gun dealer, otherwise his
License to Operate Dealership will be suspended or canceled.
Indeed, a higher degree of care is required of someone who has in his
possession or under his control an instrumentality extremely
dangerous in character, such as dangerous weapons or substances.
Such person in possession or control of dangerous instrumentalities
has the duty to take exceptional precautions to prevent any injury
being done thereby. Unlike the ordinary affairs of life or business which
Torts 2nd set Digests Page 3 of 12
involve little or no risk, a business dealing with dangerous weapons
requires the exercise of a higher degree of care.
As a gun store owner, respondent is presumed to be knowledgeable
about firearms safety and should have known never to keep a loaded
weapon in his store to avoid unreasonable risk of harm or injury to
others. Respondent has the duty to ensure that all the guns in his store
are not loaded. Firearms should be stored unloaded and separate from
ammunition when the firearms are not needed for ready-access
defensive use. With more reason, guns accepted by the store for repair
should not be loaded precisely because they are defective and may
cause an accidental discharge such as what happened in this case.
Respondent was clearly negligent when he accepted the gun for repair
and placed it inside the drawer without ensuring first that it was not
loaded. In the first place, the defective gun should have been stored in
a vault. Before accepting the defective gun for repair, respondent
should have made sure that it was not loaded to prevent any untoward
accident. Indeed, respondent should never accept a firearm from
another person, until the cylinder or action is open and he has
personally checked that the weapon is completely unloaded. For failing
to insure that the gun was not loaded, respondent himself was
negligent. Furthermore, it was not shown in this case whether
respondent had a License to Repair which authorizes him to repair
defective firearms to restore its original composition or enhance or
upgrade firearms.
Clearly, respondent did not exercise the degree of care and diligence
required of a good father of a family, much less the degree of care
required of someone dealing with dangerous weapons, as would
exempt him from liability in this case.
Taylor V. Manila Electric Railroad And Light Co.(1910)
G.R. No. L-4977 March 22, 1910
Lessons Applicable:
Elements of quasi-delict (Torts and Damages)
Good Father of a Family (Torts and Damages)
FACTS:
 September 30, 1905 Sunday afternoon: David Taylor, 15 years of
age, the son of a mechanical engineer, more mature than the
average boy of his age, and having considerable aptitude and
training in mechanics with a boy named Manuel Claparols, about
12 years of age, crossed the footbridge to the Isla del Provisor, for
the purpose of visiting Murphy, an employee of the defendant,
who and promised to make them a cylinder for a miniature
engine
 After leaving the power house where they had asked for Mr.
Murphy, they walked across the open space in the neighborhood
of the place where the company dumped in the cinders and ashes
from its furnaces
 they found some twenty or thirty brass fulminating caps scattered
on the ground
 These caps are approximately of the size and appearance of small
pistol cartridges and each has attached to it 2 long thin wires by
means of which it may be discharged by the use of electricity
 They are intended for use in the explosion of blasting charges of
dynamite, and have in themselves a considerable explosive power
 the boys picked up all they could find, hung them on stick, of
which each took end, and carried them home
 After crossing the footbridge, they met Jessie Adrian, less than 9
years old, and they went to Manuel's home
 The boys then made a series of experiments with the caps
 trust the ends of the wires into an electric light socket - no result
 break the cap with a stone - failed
 opened one of the caps with a knife, and finding that it was filled
with a yellowish substance they got matches
 David held the cap while Manuel applied a lighted match to the
contents
 An explosion followed, causing more or less serious injuries to all
three
 Jessie, who when the boys proposed putting a match to the
contents of the cap, became frightened and started to run away,
received a slight cut in the neck
 Manuel had his hand burned and wounded
 David was struck in the face by several particles of the metal
capsule, one of which injured his right eye to such an extent as to
the necessitate its removal by the surgeons
 Trial Court: held Manila Electric Railroad And Light Company
liable
ISSUE:
1. W/N the elemnents of quasi-delict to make Manila Electric Railroad
And Light Company liable - NO
2. W/N Manila Electric Railroad and Light Co. sufficiently proved that
they employed all the diligence of a good father of a family to avoid
the damage - NO
HELD: reversing the judgment of the court below
ART. 1089 Obligations are created by law, by contracts, by quasi-
contracts, and illicit acts and omissions or by those in which any kind of
fault or negligence occurs.
ART. 1902 A person who by an act or omission causes damage to
another when there is fault or negligence shall be obliged to repair the
damage so done.
ART. 1903 The obligation imposed by the preceding article is
demandable, not only for personal acts and omissions, but also for
those of the persons for whom they should be responsible.
The father, and on his death or incapacity the mother, is liable for the
damages caused by the minors who live with them.
xxx xxx xxx
Owners or directors of an establishment or enterprise are equally liable
for damages caused by their employees in the service of the branches
in which the latter may be employed or on account of their duties.
xxx xxx xxx
The liability referred to in this article shall cease when the persons
mentioned therein prove that they employed all the diligence of a
good father of a family to avoid the damage.
ART. 1908 The owners shall also be liable for the damage caused —
1 By the explosion of machines which may not have been cared for
with due diligence, and for kindling of explosive substances which may
not have been placed in a safe and proper place.
 in order to establish his right to a recovery, must establish by
competent evidence:
1. Damages to the plaintiff
2. Negligence by act or omission of which defendant personally,
or some person for whose acts it must respond, was guilty.
3. The connection of cause and effect between the negligence and
the damage.
 while we hold that the entry upon the property without express
invitation or permission would not have relieved Manila Electric
from responsibility for injuries incurred, without other fault on his
part, if such injury were attributable to his negligence, the
Torts 2nd set Digests Page 4 of 12
 negligence in leaving the caps exposed on its premises was not
the proximate cause of the injury received
 cutting open the detonating cap and putting match to its
contents was the proximate cause of the explosion and of the
resultant injuries inflicted
 Manila Electric is not civilly responsible for the injuries thus
incurred
 2 years before the accident, David spent 4 months at sea, as a
cabin boy on one of the interisland transports. Later he took up
work in his father's office, learning mechanical drawing and
mechanical engineering. About a month after his accident he
obtained employment as a mechanical draftsman and continued
in that employment for 6 months at a salary of P2.50 a day; and it
appears that he was a boy of more than average intelligence,
taller and more mature both mentally and physically than most
boys of 15
 The series of experiments made by him in his attempt to produce
an explosion, as described by Jessie who even ran away
 True, he may not have known and probably did not know the
precise nature of the explosion which might be expected from the
ignition of the contents of the cap, and of course he did not
anticipate the resultant injuries which he incurred; but he well
knew that a more or less dangerous explosion might be expected
from his act, and yet he willfully, recklessly, and knowingly
produced the explosion. It would be going far to say that
"according to his maturity and capacity" he exercised such and
"care and caution" as might reasonably be required of him, or
that defendant or anyone else should be held civilly responsible
for injuries incurred by him under such circumstances.
 The law fixes no arbitrary age at which a minor can be said to
have the necessary capacity to understand and appreciate the
nature and consequences of his own acts, so as to make it
negligence on his part to fail to exercise due care and precaution
in the commission of such acts; and indeed it would be
impracticable and perhaps impossible so to do, for in the very
nature of things the question of negligence necessarily depends
on the ability of the minor to understand the character of his own
acts and their consequences
 he was sui juris in the sense that his age and his experience
qualified him to understand and appreciate the necessity for the
exercise of that degree of caution which would have avoided the
injury which resulted from his own deliberate act; and that the
injury incurred by him must be held to have been the direct and
immediate result of his own willful and reckless act, so that while
it may be true that these injuries would not have been incurred
but for the negligence act of the defendant in leaving the caps
exposed on its premises, nevertheless plaintiff's own act was the
proximate and principal cause of the accident which inflicted the
injury
 rule of the Roman law was: Quod quis ex culpa sua damnum
sentit, non intelligitur sentire
 just thing is that a man should suffer the damage which comes to
him through his own fault, and that he can not demand reparation
therefor from another
 Negligence is not presumed, but must be proven by him who
alleges it.
Jarco Marketing, Leonardo Kong, Jose Tiope, Elisa Panelo v. CA,
Sps. Conrado and Criselda Aguilar
1999 / Davide, Jr. [Negligence > Standard of conduct > Children]
Facts
Jarco Marketing owns Syvel’s Department Store; Kong, Tiope, and
Panelo are store managers; Sps. Aguilar are the parents of daughter
Zhieneth.
Criselda and Zhieneth Aguilar (6 years old) were at the 2nd floor of
Syvel’s Department Store. Criselda was signing her credit card slip
when she felt a sudden gust of wind and heard a loud thud. When she
looked behind her, she saw her daughter pinned by the bulk of the
store’s gift wrapping counter. She asked the assistance of the people
around her, and she was immediately rushed to Makati Medical Center
where she was operated. The next day, she lost her speech. She died 14
days after the accident. The cause of her death was attributed to the
injuries sustained.
After her burial, Sps. Aguilar demanded the reimbursement of
hospitalization, medical bills, and wake and funeral expenses from the
petitioners, but they refused to pay. Sps. Aguilar filed a complaint for
damages, seeking the payment of actual [157k~] and moral [300k]
damages, attorney’s fees [20k], and for loss of income and exemplary
damages.
The petitioners denied any liability for Zhieneth’s injuries and death.
They also said the complaint was malicious, so they sought the
dismissal of the complaint and an award of moral and exemplary
damages, as well as attorney’s fees.
 Criselda was negligent in exercising care and diligence over her
daughter by allowing her to freely roam around in a store with
glassware and appliances
 Zhieneth was guilty of contributory negligence for climbing the
counter, thereby triggering its collapse
 Counter was made of sturdy wood with strong support, and it has
never fell nor collapsed for the past 15 years since its construction
 Jarco Marketing maintained that it observed due diligence of a
good father of the family
 Other petitioners raised due care and diligence in the performance
of its duties
RTC found that the preponderance of evidence favored the store, et al,
saying that the proximate cause was Zhieneth’s act of clinging to the
counter, and that Criselda’s negligence contributed to the accident. The
RTC found that the counter was not an attractive nuisance [something
that would attract children to approach, get on or use it], since the
counter was situated at the end or corner of the 2nd floor.
Here are the assertions of Sps. Aguilar:
 Zhieneth should be entitled to the conclusive presumption that a
child below 9 is incapable of contributory negligence.
 Even if she is capable of contributory negligence, it was physically
impossible for her to have propped herself on the counter
considering her small frame, and height and weight of the counter.
 The fact that a former employee of the store, Gonzales,
accompanied Zhieneth to the hospital belied the theory that
Zhieneth climbed the counter.
 This employee Gonzales said that when Zhieneth was asked by the
doctor what she did, she said “Nothing, I did not come near the
counter and the counter just fell on me.” This should be accorded
credit according to the spouses.
 Negligence could not be imputed to Criselda since it was
reasonable for her to let go of Zhieneth at that moment that she
was signing the credit card slip.
 The proximate cause was petitioner’s negligence in failing to
institute measures to have the counter permanently nailed.
In response, here is what the petitioners have to say:
 Zhieneth’s death was an ACCIDENT.
 Nailing the counter to the ground was not necessary because it has
been there for the longest time without any prior accident and it’s
just in a corner.
Torts 2nd set Digests Page 5 of 12
 The criminal case for homicide through simple negligence filed
against them was dismissed, and they were acquitted.
The CA reversed RTC, ruling in favor of Sps. Aguilar.
 Petitioners were negligent in maintaining a structurally dangerous
counter [it’s shaped like an inverted L; the top is wider than the
base; weight of the upper portion not evenly distributed nor
supported by the narrow base]. Two former employees brought this
to the attention of the management but the latter ignored their
concern. CA said the incident could have been avoided had
petitioners repaired this defective counter. The contention that it
has been there for a long time without a prior incident is
immaterial.
 Zhieneth was incapable of negligence or other tort.
 Criselda was absolved of any negligence.
 Testimony of Gonzales (former employee) given credit
 Awarded actual damages, compensatory damages [denied award of
funeral expenses for lack of proof to substantiate it]
CA denied petitioners’ MfR, so they are now seeking the reversal of
said decision, saying that since the action is based on tort, any finding
of negligence on the part of Sps. Aguilar would negate their claim for
damages, where said negligence was the proximate cause of the injury
sustained. They also assailed the testimony of Gonzales who was
already separated from the store (tarnished by ill-feelings and all).
Issues and Holding
WON Zhieneth’s death was accidental or attributable to negligence.
ATTRIBUTABLE TO NEGLIGENCE
WON negligence was attributable to petitioners [for maintaining a
defective counter] or to Sps. Aguilar [for failing to exercise due and
reasonable care while inside the store]. FAULT OF PETITIONERS
Ratio
Accident v. Negligence – they are intrinsically contradictory
ACCIDENT pertains to an unforeseen event in which no fault or
negligence attaches to defendant (or if it happens wholly or partly
through human agency, it is an event which under the circumstances is
unusual or unexpected by the person to whom it happens); there is
exercise of ordinary care here
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
Alternatively, it is the failure to observe, for the protection of another
person’s interest, that degree of care, precaution and vigilance which
the circumstances justly demand, whereby such other person suffers
injury
Picart v. Smith lays down the test to determine WON negligence exists:
Did the defendant in doing the alleged negligent act use that
reasonable care and caution which an ordinary prudent person would
have used in the same situation? If not, he is guilty of negligence.
SC found that Zhieneth performed no act that facilitated her death.
Basis is her statement to the doctor as related by former employee
Gonzales. It was made part of the res gestae since she made the
statement immediately subsequent to the startling occurrence. It is
axiomatic that matters relating to declarations of pain or suffering and
statements made to a physician are generally considered declarations
and admissions. Also, the court considered the fact that Zhieneth was
of a tender age (and in so much pain!), so it would be unthinkable that
she would lie.
Other findings:
Petitioners were informed of the danger posed by the unstable
counter, yet they did not act on the matter, so they failed to discharge
the due diligence required of a good father of a family.
They failed to establish that the testimonies of former employees were
biased.
Conclusive presumption that children below 9 are incapable of
contributory negligence is applied.
Judge Sangco [book author] says that children below 9 is conclusively
presumed to have acted without discernment, and are exempt from
criminal liability. Since negligence may be a felony and a QD, it
required discernment as a condition of liability, so therefore, said
children are presumed to be incapable of negligence.
Even if contributory negligence would be attributed to Zhieneth, no
injury should have occurred if petitioners’ theory that the counter is
stable and sturdy is to be believed.
Criselda is absolved from any contributory negligence, since it was
reasonable for her to let go of her child to sign a slip.
Zhieneth was just a foot away from her mother, and the counter was
just four meters away from Criselda (contrary to statements that
Zhieneth was loitering at that time).
Ylarde vs. Aquino
GR No. L33722, July 29, 1988
FACTS:
Private respondent Mariano Soriano was the principal of the Gabaldon
Primary School in Pangasinan. Defendant Edgardo Aquino was a
teacher therein. During that time, the school had several concrete
blocks which were remnants of the old school shop destroyed in World
War II. Defendant decided to help clear the area so he gathered 18 of
his male students and ordered them to dig beside a one ton concrete
block in making a hole where the stone can be buried. It was left
unfinished so the following day he called 4 of the 18 students including
the Novelito Ylarde to complete the excavation. Defendant left the
children to level the loose soil while he went to see Banez for the key
to the school workroom where he can get some rope. It was alleged
that before leaving, he told the children “not to touch the stone”. After
he left, the children playfully jumped into the pit when suddenly the
concrete block slide down. Unfortunately, Novelito Ylarde was pinned
to the wall causing serious physical injuries which as a consequence led
to his death, 3 days thereafter. The parents of the victim, herein
petitioners, filed a suit for damages against both Aquino and Soriano.
ISSUE: WON both Soriano and Aquino can be held liable for damages.
HELD:
As held in Amadora vs CA, “it is only the teacher and not the head of
an academic school who should be answerable for torts committed by
their students”. 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 student, this is the
general rule. However, in casea of establishments of arts and trades, 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 general shall
be liable for the acts of their students except where the school is
technical in nature, in which case it is the head thereof who shall be
Torts 2nd set Digests Page 6 of 12
answerable. Hence, Soriano as principal cannot be held liable for the Lessons Applicable: Experts and Professionals (Torts and Damages)
reason that the school he heads is an academic school and he did not
give any instruction regarding the digging.
FACTS:
A teacher who stands in loco parentis to his tudents should make sure  Feliciano Santos, having some sick horses, presented a copy of a
that the children are protected from all harm. The excavation prescription obtained from Dr. Richardson, and which on other
instructed clearly exposed the students to risk and should not be occasions Santos had given to his horses with good results, at
placed under the category of Work Education such as school Pineda's drug store for filling. (Santiago Pineda, the defendant, is
gardening, planting trees etc. Aquino acted with fault and gross a registered pharmacist)
negligence where instead of availing himself of adult manual laborers  Under the supervision of Pineda, the prescription was prepared
he instead utilized his students. Furthermore, the warning given is not and returned to Santos in the form of 6 papers marked Botica
sufficient to cast away all serious danger that the concrete block Pineda
adjacent to the excavation would present to the children. He is  Santos, under the belief that he had purchased the potassium
therefore ordered to pay damages to the petitioners. chlorate which he had asked for, put two of the packages in water
the doses to two of his sick horses.
 Another package was mixed with water for another horse, but was
not used. The two horses, to which had been given the
CULION ICE V. PHILIPPINE MOTORS (G.R. NO. L-32611)
preparation, died shortly afterwards.
 Santos, thereupon, took the three remaining packages to the
Bureau of Science for examination. Drs. Peña and Darjuan, of the
Facts: Bureau of Science, on analysis found that the packages contained
Culion Ice and Fish was the registered owner of the motor schooner, not potassium chlorate but barium chlorate.
Gwendoline, which it uses for its fishing trade. In order to save costs in
 At the instance of Santos, the two chemists also went to the drug
running the boat, Culion Ice decided to have the engine changed from
store of the defendant and bought potassium chlorate, which
gasoline consumer to a crude oil burner. Quest, general manager of
when analyzed was found to be barium chlorate. (Barium chlorate,
Philippine Motors, a domestic corporation engaged in machinery
it should be noted, is a poison; potassium chlorate is not.)
engines and motors, agreed to do the job. Upon inspection, Quest
 Dr. Buencamino, a veterinarian, performed an autopsy on the
came to conclusion that a carburetor needed to be installed. In the
horses, and found that death was the result of poisoning
course of the work, it was observed that the carburetor was flooding
 RTC: held Pineda liable
and that the gasoline and other fuel was trickling freely to the floor but
ISSUE: W/N Pineda should be liable for negligence
this concern was dismissed by Quest. During the boat’s trial run, the
engine stopped and upon being started, a back fire occurred which
then instantly spread and finally engulfed Gwendoline. The crew
HELD: YES. The judgment of the lower court, sentencing the defendant
members safely escaped but Gwendoline was destroyed. Culion Ice
to pay a fine of P100, with subsidiary imprisonment in case of
moved for the recovery of the damages against Philippine Motors. The
insolvency, and to pay the costs, is affirmed with the cost of this
trial court ruled for Culion Ice. Philippine Motor asserts that the
instance against the appellant, without prejudice to any civil action
accident was not due to the fault of Quest.
which may be instituted
 Every pharmacist shall be responsible for the quality of all drugs,
Issue:
chemicals, medicines, and poisons he may sell or keep for sale;
Whether or not Quest was negligent.
and it shall be unlawful for any person whomsoever to
manufacture, prepare, sell, or administer any prescription, drug,
Ruling: YES.
chemical, medicine, or poison under any fraudulent name,
When a person holds himself out as being competent to do things
direction, or pretense, or to adulterate any drug, chemical,
requiring professional skill, he will be held liable for negligence if
medicine, or poison so used, sold or offered for sale. Any drug,
he fails to exhibit the care and skill of one ordinarily skilled in the
chemical, medicine, or poison shall be held to be adulterated or
particular work which he attempts to do. The proof shows that Quest
deteriorated within the meaning of this section if it differs from
had had ample experience in fixing the engines of automobiles and
the standard of quality or purity given in the United States
tractors, but it does not appear that he was experienced in the doing of
Pharmacopoeia.
similar work on boats. For this reason, possibly the dripping of the
 The same section of the Pharmacy Law also contains the following
mixture form the tank on deck and the flooding of the carburetor did
penal provision: "Any person violating the provisions of this Act
not convey to his mind an adequate impression of the danger of
shall, upon conviction, be punished by a fine of not more than
fire. But a person skilled in that particular sort of work would, we
five hundred dollar." The Administrative Code, section 2676,
think have been sufficiently warned from those circumstances
changes the penalty somewhat by providing that: Any person
(risks) to cause him to take greater and adequate precautions
engaging in the practice of pharmacy in the Philippine Islands
against the danger. In other words Quest did not use the skill that
contrary to any provision of the Pharmacy Law or violating any
would have been exhibited by one ordinarily expert in repairing
provisions of said law for which no specific penalty s provided
gasoline engines on boats. There was here, in our opinion, on the part
shall, for each offense, be punished by a fine not to exceed two
of Quest, a blameworthy antecedent inadvertence to possible harm,
hundred pesos, or by imprisonment for not more than ninety
and this constitutes negligence. The burning of the Gwendoline may be
days, or both, in the discretion of the court.
said to have resulted from accident, but this accident was in no sense
an unavoidable accident. It would not have occurred but for Quest’s
 As a pharmacist, he is made responsible for the quality of all
drugs and poisons which he sells. And finally it is provided that it
carelessness or lack of skill. The test of liability is not whether the injury
shall be unlawful for him to sell any drug or poison under any
was accidental in a sense, but whether Quest was free from blame.
"fraudulent name." It is the one word "fraudulent" which has
given the court trouble. What did the Legislature intend to convey
by this restrictive adjective?
US V. Pineda (1918)
G.R. No. L-12858 January 22, 1918
 Were we to adhere to the technical definition of fraud, which the
appellant vigorously insists upon, it would be difficult, if not

Torts 2nd set Digests Page 7 of 12

 impossible, to convict any druggist of a violation of the law. The
prosecution would have to prove to a reasonable degree of
certainty that the druggist made a material representation; that it
was false; that when he made it he knew that it was false or made
it recklessly without any knowledge of its truth and as positive
assertion; that he made it with the intention that it should be
acted upon by the purchaser; that the purchaser acted in reliance
upon it, and that the purchased thereby suffered injury.
 Under one conception, and it should not be forgotten that the
case we consider are civil in nature, the question of negligence or
ignorance is irrelevant. The druggist is responsible as an absolute
guarantor of what he sells. Instead of caveat emptor, it should
be caveat venditor.
MERCURY DRUG CORPORATION and AURMELA GANZON vs.
RAUL DE LEON
G.R. No. 165622 [ October 17, 2008]
Facts:
Respondent Raul T. De Leon, a judge, noticed that his left eye was
reddish. He also had difficulty reading. On the same evening, he met a
friend who happened to be a doctor, Dr. Charles Milla. The latter
prescribed the drugs “CortisporinOpthalmic” and “Ceftin” to relieve his
eye problems. Before heading to work the following morning, De Leon
went to the Betterliving, Parañaque, branch of Mercury Drug Store
Corporation to buy the prescribed medicines. He showed his
prescription to petitioner AurmelaGanzon, a pharmacist assistant. At
his chambers, De Leon requested his sheriff to assist him in using the
eye drops. As instructed, the sheriff applied 2-3 drops on respondent’s
left eye. Instead of relieving his irritation, respondent felt searing
pain. He immediately rinsed the affected eye with water, but the pain
did not subside. Only then did he discover that he was given the
wrong medicine, “CortisporinOtic Solution.” De Leon returned to the
same Mercury Drug branch, with his left eye still red and teary. When
he confronted Ganzon why he was given ear drops, instead of the
prescribed eye drops, she did not apologize and instead brazenly
replied that she was unable to fully read the prescription and it was her
supervisor who apologized and informed De Leon that they do not
have stock of the needed CortisporinOpthalmic. De Leon wrote
Mercury Drug, through its president, Ms. Vivian K. Askuna, about the
day’s incident. Instead, two sales persons went to his office and
informed him that their supervisor was busy with other matters. Having
been denied his simple desire for a written apology and
explanation, De Leon filed a complaint for damages against Mercury
Drug.
Issue:
Whether or not the Mercury Drug and Ganzon are liable.
Ruling:
Yes. Mercury Drug and Ganzoncannot exculpate themselves from any
liability. As active players in the field of dispensing medicines to the
public, the highest degree of care and diligence is expected of
them. Likewise, numerous decisions, both here and abroad, have laid
salutary rules for the protection of human life and human health. In
the United States case of Tombari v. Conners, it was ruled that the
profession of pharmacy demands care and skill, and druggists must
exercise care of a specially high degree, the highest degree of care
known to practical men. In other words, druggists must exercise the
highest practicable degree of prudence and vigilance, and the most
exact and reliable safeguards consistent with the reasonable conduct of
the business, so that human life may not constantly be exposed to the
danger flowing from the substitution of deadly poisons for harmless
medicines.
In cases where an injury is caused by the negligence of an employee,
there instantly arises a presumption of law that there has been
negligence on the part of the employer, either in the selection or
supervision of one’s employees. This presumption may be rebutted by
a clear showing that the employer has exercised the care and diligence
of a good father of the family. Mercury Drug failed to overcome such
presumption.
Petitioners Mercury Drug and Ganzon have similarly failed to live up to
high standard of diligence expected of them as pharmacy
professionals. They were grossly negligent in dispensing ear drops
instead of the prescribed eye drops to De Leon.
As a buyer, De Leon relied on the expertise and experience of Mercury
Drug and its employees in dispensing to him the right medicine. This
Court has ruled that in the purchase and sale of drugs, the buyer and
seller do not stand at arms length. There exists an imperative duty on
the seller or the druggist to take precaution to prevent death or injury
to any person who relies on one’s absolute honesty and peculiar
learning.
Dr. Ninevetch Cruz v. CA and Lydia Umali
1997 / Francisco / Petition for review on certiorari of a CA decision
Standard of conduct > Experts > Medical professionals
FACTS
Medical malpractice suit - type of claim which a victim has available
to him/her to redress a wrong committed by a medical professional
which has caused bodily harm; most often brought as a civil action for
damages under NCC 2176 or a criminal case under RPC 365, with
which a civil action for damages is impliedly instituted.
Lydia Umali was examined by Dr. Cruz who found a myoma [benign
tumor] in her uterus, and scheduled her for a hysterectomy
operation [removal of uterus] on 23 Mar 1991. Rowena Umali de
Ocampo accompanied her mother to the hospital a day before the
operation, and they spent the night there. Rowena noticed that
the clinic was untidy, so she tried to persuade her mother not to
proceed with the operation. The following day, Rowena asked Dr. Cruz
if the operation could be postponed, but Lydia told her daughter that
Dr. Cruz said that the operation must go on as scheduled.
While Lydia's relatives were waiting, Dr. Ercillo
(anesthesiologist) told them to buy tagamet ampules, and Rowena's
sister went out to buy some. An hour later, Dr. Ercillo asked them to
buy blood for Lydia, so they did. A few hours later, the operation was
finished, but later, Dr. Cruz asked the family to buy additional blood,
but there was no more type A blood available in the blood bank. A
person arrived to donate blood which was later transfused to Lydia.
Rowena noticed that her mother was gasping for breath--apparently,
the oxygen supply had run out, so the family went out to buy oxygen.
Later in the evening, she went into shock and her blood pressure
dropped. She was then transferred to another hospital so she could
be connected to a respirator and further examined. However, this
transfer was without the consent of the relatives, who only found
out about it when an ambulance came to take Lydia to the other
hospital.
In the new hospital, she was re-operated upon by Dr. Cruz
and Dr. Ercillo because blood was oozing out from her incision. They
summoned Dr. Angeles, Ob-Gyne head of the new hospital, but when
he arrived, Lydia was already in shock and possibly dead (BP: 0/0). Dr.
Angeles told Drs. Cruz and Ercillo that there was nothing he could
Torts 2nd set Digests Page 8 of 12
 do. Lydia died while Dr. Cruz was closing her abdominal
wall. Immediate cause of death is shock; disseminated intravascular
coagulation (DIC) as antecedent cause.
Dr. Cruz and Dr. Ercillo were charged with reckless
imprudence and negligence resulting in homicide of Lydia Umali.
The Municipal Trial Court in Cities (MTCC) found Dr. Ercillo not guilty
for insufficiency of evidence against her, but held Dr. Cruz
responsible for Umali's death. RTC and CA affirmed MTCC.
Manifestation of negligence
 untidiness of clinic
 lack of provision of supplies
 the fact that the transfer was needed meant that there was
something wrong in the way Dr. Cruz conducted operation
 no showing that pre-surgery procedure (clearance, blood
typing/tests) was conducted
ISSUE AND HOLDING
WON the circumstances are sufficient to sustain a judgment of
conviction against Dr. Cruz for reckless imprudence resulting in
homicide. NO. DR. CRUZ IS ACQUITTED, BUT SHE IS STILL CIVILLY
LIABLE (50K civil liability; 100k moral damages, 50k exemplary
damages).
RATIO
Elements of reckless imprudence
1. Offender does / fails to do an act
2. Doing / failure to do act is voluntary
3. Without malice
4. Material damage results from reckless imprudence
5. There is inexcusable lack of precaution, taking into consideration
offender's employment, degree of intelligence, physical condition,
other circumstances re: persons, time, place
Standard of care
Standard of care observed by other members of the profession in good
standing under similar circumstances, bearing in mind the advanced
state of the profession at the time of treatment or the present state of
medical science
When the physician's qualifications are admitted, there is an
inevitable presumption that in proper cases, he takes the necessary
precaution and employs the best of his knowledge and skill in
attending to his clients, unless the contrary is sufficiently established
by expert testimony.
Expert testimony
Expert testimony is essential to establish standard of care of the
profession, as well as that the physician's conduct in the treatment and
care falls below such standard. It is also usually necessary to support
the conclusion as to causation. There is an absence of any expert
testimony re: standard of care in the case records. NBI doctors
presented by the prosecution only testified as to the possible cause of
death.
While it may be true that the circumstances pointed out by the
lower courts constitute reckless imprudence, this conclusion is still
best arrived not through the educated surmises nor conjectures of
laymen, including judges, but by the unquestionable knowledge of
expert witnesses. The deference of courts to the expert opinion of
qualified physicians stems from the realization that the latter
possess unusual technical skills which laymen are incapable of
intelligently evaluating.
Burden of establishing medical negligence on plaintiff
Plaintiff has the burden to establish this, and for a reasonable
conclusion of negligence, there must be proof of breach of duty on the
part of the surgeon, as well as a causal connection of such breach and
the resulting death of patient. Negligence cannot create a right of action
unless it is the proximate cause of the injury complained of (Chan Lugay
v. St. Luke's Hospital, Inc.). In this case, no cogent proof exists that the
circumstances caused Lydia's death, so the 4th element of reckless
imprudence is missing.
The testimonies of the doctors presented by the prosecution
establish hemorrhage / hemorrhagic shock as the cause of death,
which may be caused by several different factors. Autopsy did not
reveal any untied cut blood vessel, nor was there a tie of a cut blood
vessel that became loose. The findings of the doctors do not
preclude the probability that a clotting defect (DIC) caused the
hemorrhage and consequently, Lydia's death.
The Court has no recourse but to rely on the expert testimonies that
substantiate Dr. Cruz' allegation that the cause of Lydia's death was
DIC, which cannot be attributed to Dr. Cruz' fault or negligence. This
probability was unrebutted during trial.
PROFESSIONAL SERVICES INC. (PSI) V. AGANA, G.R. NO. 126297,
31 JANUARY 2007.
FACTS:
Natividad Agana was rushed to the Medical City General
Hospital (Medical City Hospital) because of difficulty of bowel
movement and bloody anal discharge. After a series of medical
examinations, Dr. Miguel Ampil diagnosed her to be suffering from
“cancer of the sigmoid.” Dr. Ampil, assisted by the medical staff of the
Medical City Hospital, performed an anterior resection surgery on
Natividad. He found that the malignancy in her sigmoid area had
spread on her left ovary, necessitating the removal of certain portions
of it. Thus, Dr. Ampil obtained the consent of Natividad’s husband,
Enrique Agana, to permit Dr. Juan Fuentes, respondent in G.R. No.
126467, to perform hysterectomy on her. Thereafter, Dr. Ampil took
over, completed the operation and closed the incision. However, based
on the record of the hospital, the attending nurses indicated nota bene
that 2 sponges were missing. The same was reported to Dr. Ampil but
were not found after “diligent seach”.
After couple of days, Natividad complained of excruciating
pain in her anal region. She consulted both Dr. Ampil and Dr. Fuentes
about it. They told her that the pain was the natural consequence of
the surgery. Dr. Ampil then recommended that she consult an
oncologist to examine the cancerous nodes which were not removed
during the operation. Natividad went to the United States for four
months but she was only declared free of cancer. In Natividad’s return
to the Philippines, her daughter found a piece of gauze protruding
from her vagina. Upon being informed about it, Dr. Ampil proceeded
to her house where he managed to extract by hand a piece of gauze
measuring 1.5 inches in width. He then assured her that the pains
would soon vanish. But instead the pains intensified, prompting
Natividad to seek treatment at the Polymedic General Hospital. While
confined there, Dr. Ramon Gutierrez detected the presence of another
foreign object in her vagina — a foul-smelling gauze measuring 1.5
inches in width which badly infected her vaginal vault. A recto-vaginal
fistula had formed in her reproductive organs which forced stool to
excrete through the vagina. Natividad underwent another surgical
operation to remedy the damage. Civil and administrative complaints,
for damages and gross negligence respectively, were filed against
Professional Services Inc., owner of Medical City Hospital, Dr. Ampil and
Dr. Fuentes.
ISSUE(S):
Are the following liable?
(1) Professional Services Inc., based on
(a) “employer-employee relationship”;
(b) “doctrine of apparent authority”;
(c) “corporate negligence”;
(2) Dr. Ampil,
Torts 2nd set Digests Page 9 of 12
 (a) for medical negligence;
(b) under the “captain of the ship doctrine”;
(3) Dr.Fuentes, under the doctrine of res ipsa loquitor;
HELD:
(1)
(a) YES.
[P]rivate hospitals, hire, fire and exercise real control over their
attending and visiting ‘consultant’ staff. While ‘consultants’ are not,
technically employees, x x x, the control exercised, the hiring, and the
right to terminate consultants all fulfill the important hallmarks of an
employer-employee relationship, with the exception of the payment of
wages. In assessing whether such a relationship in fact exists, the
control test is determining. 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.
(b) YES.
Apparent authority, or what is sometimes referred to as the
“holding out” theory, or doctrine of ostensible agency or agency by
estoppel, has its origin from the law of agency. It imposes liability, not
as the result of the reality of a contractual relationship, but rather
because of the actions of a principal or an employer in somehow
misleading the public into believing that the relationship or the
authority exists. xxx In this case, PSI publicly displays in the lobby of the
Medical City Hospital the names and specializations of the physicians
associated or accredited by it, including those of Dr. Ampil and Dr.
Fuentes. We concur with the Court of Appeals’ conclusion that it “is
now estopped from passing all the blame to the physicians whose
names it proudly paraded in the public directory leading the public to
believe that it vouched for their skill and competence.” Indeed, PSI’s act
is tantamount to holding out to the public that Medical City Hospital,
through its accredited physicians, offers quality health care services. By
accrediting Dr. Ampil and Dr. Fuentes and publicly advertising their
qualifications, the hospital created the impression that they were its
agents, authorized to perform medical or surgical services for its
patients. As expected, these patients, Natividad being one of them,
accepted the services on the reasonable belief that such were being
rendered by the hospital or its employees, agents, or servants.
(c) YES.
Hospital’s corporate negligence extends to permitting a
physician known to be incompetent to practice at the hospital. xxx [A]
patient who enters a hospital does so with the reasonable expectation
that it will attempt to cure him. The hospital accordingly has the duty
to make a reasonable effort to monitor and oversee the treatment
prescribed and administered by the physicians practicing in its
premises. In the present case, it was duly established that PSI operates
the Medical City Hospital for the purpose and under the concept of
providing comprehensive medical services to the public. Accordingly, it
has the duty to exercise reasonable care to protect from harm all
patients admitted into its facility for medical treatment. Unfortunately,
PSI failed to perform such duty.
(2)
(a) YES.
This is a clear case of medical malpractice or more
appropriately, medical negligence. To successfully pursue this kind of
case, a patient must only prove that a health care provider either failed
to do something which a reasonably prudent health care provider
would have done, or that he did something that a reasonably prudent
provider would not have done; and that failure or action caused injury
to the patient. Simply put, the elements are duty, breach, injury and
proximate causation. Dr, Ampil, as the lead surgeon, had the duty to
remove all foreign objects, such as gauzes, from Natividad’s body
before closure of the incision. When he failed to do so, it was his duty
to inform Natividad about it. Dr. Ampil breached both duties. Such
breach caused injury to Natividad, necessitating her further
examination by American doctors and another surgery. That Dr. Ampil’s
negligence is the proximate cause of Natividad’s injury could be traced
from his act of closing the incision despite the information given by the
attending nurses that two pieces of gauze were still missing. That they
were later on extracted from Natividad’s vagina established the causal
link between Dr. Ampil’s negligence and the injury. And what further
aggravated such injury was his deliberate concealment of the missing
gauzes from the knowledge of Natividad and her family.
(b) YES.
Under the “Captain of the Ship” rule, the operating surgeon is
the person in complete charge of the surgery room and all personnel
connected with the operation. Their duty is to obey his orders. As
stated before, Dr. Ampil was the lead surgeon. In other words, he was
the “Captain of the Ship.” That he discharged such role is evident from
his following conduct: (1) calling Dr. Fuentes to perform a
hysterectomy; (2) examining the work of Dr. Fuentes and finding it in
order; (3) granting Dr. Fuentes’ permission to leave; and (4) ordering
the closure of the incision. To our mind, it was this act of ordering the
closure of the incision notwithstanding that two pieces of gauze
remained unaccounted for, that caused injury to Natividad’s body.
Clearly, the control and management of the thing which caused the
injury was in the hands of Dr. Ampil, not Dr. Fuentes.
(3) NO.
The requisites for the applicability of the doctrine of res ipsa
loquitur are: (1) the occurrence of an injury; (2) the thing which caused
the injury was under the control and management of the defendant; (3)
the occurrence was such that in the ordinary course of things, would
not have happened if those who had control or management used
proper care; and (4) the absence of explanation by the defendant. Of
the foregoing requisites, the most instrumental is the “control and
management of the thing which caused the injury.”
We find the element of “control and management of the thing
which caused the injury” to be wanting. Hence, the doctrine of res ipsa
loquitur will not lie.
It was duly established that Dr. Ampil was the lead surgeon
during the operation of Natividad. He requested the assistance of Dr.
Fuentes only to perform hysterectomy when 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. Ampil. The latter examined it and finding everything to be
in order, allowed Dr. Fuentes to leave the operating room. Dr. Ampil
then resumed operating on Natividad. He was about to finish the
procedure when the attending nurses informed him that two pieces of
gauze were missing. A “diligent search” was conducted, but the
misplaced gauzes were not found. Dr. Ampil then directed that the
incision be closed. During this entire period, Dr. Fuentes was no longer
in the operating room and had, in fact, left the hospital.
CAYAO-LASAM VS RAMOLETE (GR NO. 159132 DECEMBER
18, 2002)
GR No. 159132 December 18, 2002
Facts: On July 28, 1994, respondent 3 months pregnant Editha
Ramolete was brought to Lorma Medical Center (LMC) in San
Fernando, La Union due to vaginal bleeding upon advise of petitioner
related via telephone, Editha was admitted to the LMC on the same
day. A pelvic sonogram was then conducted on Editha revealing the
fetus weak cardiac pulsation. The following day, Editha repeat pelvic
sonogram showed that aside from the fetus weak cardiac pulsation, no
fetal movement was also appreciated. Due to persistent and profuse
vaginal bleeding, petitioner advised her to undergo a D&C procedure.
She was discharged the following day. On September 16, 1994, Editha
was once gain brought at the LMC, as she was suffering from vomiting
ans severe abdominal pains. Editha was attended by Drs. Dela Cruz,
Mayo and Komiya. Dr. Mayo allegedly informed Editha that there was a
dead fetus in the latter’s womb, after Editha went laparectomy, she was
found to have massive intra abdominal hemorrhage and ruptured
Torts 2nd set Digests Page 10 of 12
uterus. Thus, she had to go hysterectomy and as a result no more
chance to bear a child.
Issue: Whether or not petitioner is liable for medical malpractice.
Held: No. Medical malpractice is a particular form of negligence which
consists in the failure of a physician or surgeon to apply to his practice
of medicine that degree of care and skill which is ordinarily employed
by the profession generally under similar conditions, and in like
surrounding circumstances. In order to successfully pursue such a
claim, a patient must prove that the physician or surgeon either failed
to do something which a reasonably prudent physician or surgeon
would not have done, and that the failure or action caused injury to the
patient.
There are four elements involved in medical negligence cases: duty,
breach, injury, and proximate cause..
A physician-patient relationship was created when Editha employed the
services of the petitioner. As Editha’s physician, petitioner was duty-
bound to use at least the same level of care that any reasonably
competent doctor would use to treat a condition under the same
circumstances. The breach of these professional duties of skill and care,
or their improper performance by a physician surgeon, whereby the
patient’s injured in body or in health, constitutes actionable
malpractice, as to this aspect of medical malpractice, the determination
of the reasonable level of care and the breach thereof, expert
testimony is essential. Further, in as much as the causes of the injuries
involved in malpractice actions are determinable only in the light of
scientific knowledge, it has been recognized that expert testimony is
usually necessary to suspect the conclusion as to causation.
It is undisputed that Editha did not return for follow-up evaluation, in
defiance of the petitioners advice. This is as found out is the proximate
cause of the injury she sustained.
LUCAS v JUANIO??- CASE NOT FOUND
Ramos V. CA (1999)
G.R. No. 124354 December 29, 1999
Lessons Applicable: Personal Injury and Death (Torts and Damages)
Laws Applicable:
FACTS:
 June 17, 1985 afternoon: Erlinda Ramos, 47-year old robust
woman underwent on an operation to the stone at her gall
bladder removed after being tested that she was fit
for "cholecystectomy" operation performed by Dr. Orlino
Hozaka. Dr. Hosaka charged a fee of P16,000.00, which was to
include the anesthesiologist's fee and which was to be paid after
the operation. He assured Rogelio E. Ramos, husband that he will
get a good anesthesiologist who was Dra. Perfecta
Gutierrez. Erlinda's hand was held by Herminda Cruz, her sister -
in-law who was the Dean of the College of Nursing at the Capitol
Medical Center together with her husband went down with her to
the operating room.
 Instead of 9:30 am, Dr. Hosaka arrived at about 12:15 P.M.
 Herminda noticing what Dra. Perfecta Gutierrez was doing, saw
the nailbed of Erlinda becoming bluish and Dr. Hosaka called for
another anesthesiologist Dr. Calderon.
 She went out of the operating room to tell Rogelio that
something is wrong.
 When she went back she saw Erlinda in a trendelenburg position
and at 3 p.m. she was taken to the Intensive Care Unit (ICU) where
she stayed for a month due to bronchospasm
incurring P93,542.25 and she was since then comatosed.
 She suffered brain damage as a result of the absence of oxygen in
her brain for four to five minutes.
 She was also diagnosed to be suffering from "diffuse cerebral
parenchymal damage"
 Monthly expenses ranged from P8,000 to P10,000
 Spouses Ramos and their minors filed against Dr. Hosaka and Dra.
Perfecta Gutierrez
 RTC: favored the Ramos' awarding P8,000 as actual monthly
expenses totalling to P632,000 as of April 15, 1992, P100,000 atty.
fees, P800,000 moral damages,P200,000 exemplary damages and
cost of suit
 CA: reversed ordering the Ramos' to pay their unpaid bills
of P93,542.25 plus interest
ISSUE: W/N the Ramos' are entitled to damages
HELD: YES. CA modified in favor of petitioners, and solidarily against
private respondents the following: 1) P1,352,000 actual damages
computed as of the date of promulgation plus a monthly payment of
P8,000.00 up to the time that petitioner Erlinda Ramos expires or
miraculously survives; 2) P2,000,000 moral damages, 3) P1,500,000
temperate damages; 4) P100,000 exemplary damages
and P100,000 attorney's fees; and, 5) the costs of the suit.
 The application of res ipsa loquitur in medical negligence cases
presents a question of law since it is a judicial function to
determine whether a certain set of circumstances does, as a
matter of law, permit a given inference.
 doctrine of res ipsa loquitur is availed by the plaintiff, the need for
expert medical testimony is dispensed with because the injury
itself provides the proof of negligence - applicable in this case
 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
 As borne by the records, respondent Dra. Gutierrez failed to
properly intubate the patient according to witness Herminda
 With her clinical background as a nurse, the Court is
satisfied with her testimony
 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
 Generally, to qualify as an expert witness, one must have acquired
special knowledge of the subject matter about which he or she is
to testify, either by the study of recognized authorities on the
subject or by practical experience.
 Dr. Jamora, not an anesthesiologist, stated that oxygen
deprivation which led to anoxic encephalopathy was due to an
unpredictable drug reaction to the short-acting barbiturate was
not accepted as expert opinion
 Dr. Hosaka's negligence can be found in his failure to exercise the
proper authority in not determining if his anesthesiologist
observed proper anesthesia protocols
 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
 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-
Torts 2nd set Digests Page 11 of 12
 employee relationship, with the exception of the payment of
wages.
 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.
 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.
 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.
 the damage done to her would not only be permanent and
lasting, it would also be permanently changing and adjusting to
the physiologic changes which her body would normally undergo
through the years.
 Erlinda Ramos was in her mid-forties when the incident occurred.
She has been in a comatose state for over fourteen years now
 Ramos' 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. Award of P2,000,000 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 are likewise proper.

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