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Republic of the Philippines

REGIONAL TRIAL COURT


La Union

ANA DIONISIO
Plaintiff,

-versus- CIVIL CASE


For: Damages

JOVY CORTEZ AND LOIDA MARTINEZ,


Defendants
x------------------------------------------------------x

MEMORANDUM
For the Defendant

COMES NOW THE DEFENDANT, through the undersigned


counsel, unto this Honorable Regional Trial Court most respectfully
submits and presents this Memorandum in the above-titled case and
aver that:

I. BRIEF STATEMENT OF THE CASE


In order that this honourable court may be enlightened and
guided in the judicious disposition of the above-entitled case, cited
hereunder are the material, relevant and pertinent facts of the case to
wit:

1. Plaintiff Ana Dionisio (hereinafter Plaintiff) and her co-


workers/friends had a drinking spree in a bar at Pagdalagan
Sur, Bauang, La Union.

2. Plaintiff and her friends Richard Juan, Angela Benito, Gerry


Molina and Pedro Jose rode a tricycle with plate no. QV 1156
driven by Edmundo Velasco to go home.

3. While travelling northbound along the National Highway, the


tricycle tried to overtake a slow-moving trailer truck. However, a
southbound private van with plate no. REK 543 driven by the
Defendant, Jovy Cortez (hereinafter “Jovy”) emerged. The
tricycle swerved towards the shoulder of the southbound lane
but the portion of the tricycle still in the van’s lane collided with
the latter.

4. Due to the collision, the plaintiff suffered serious injuries. She


lost her right eye and her face was deformed as a result of the
subject incident.

5. Plaintiff brought a civil action for damages before the Regional


Trial Court of Bauang, La Union against Defendants Jovy and
his employer, Loida Martinez (hereinafter “Loida”). She anchors
her case on the Doctrine of Last Clear Chance, arguing that the
negligence of Jovy is the ultimate cause of the tragic incident
since Jovy had the last clear chance to avoid the collision.

6. Defendants Jovy and Loida deny any responsibility. Arguing


that Jovy was not negligent since it was in fact the tricycle
driven by Edmundo Velasco who had encroached upon its lane.
They further claim that the van did not hit the tricycle since
damages on the van appear on its right side. Loida, also argues
that she had exercised diligence when she hired Jovy as her
driver.

7. During the examination of Edmundo Velasco’s body, it tested


positive for alcohol intake while Jovy tested negative for alcohol
intake.

II. STATEMENT OF ISSUES

1. Whether the Doctrine of Last Clear Chance is applicable to the


case.
2. Whether the act of the defendant is the proximate cause of the
incident as to entitle the plaintiff to damages
3. Whether the defendant is liable for the lack of diligence required in
the selection and supervision of employees.

III. ARGUMENTS

1. The Doctrine of Last Clear Chance does not apply in this case
since the negligence of the defendant has not been proved.
2. The act of the defendant is not the proximate cause of the
incident.
3. Negligence in the selection or supervision of employees cannot
apply in a case where the defendant is clearly not negligent.
IV. DISCUSSION

1. The plaintiff anchors her case on the doctrine of last clear chance.

“The doctrine of last clear chance provides that where


both parties are negligent but the negligent act of one is
appreciably later in point of time than that of the other, or
where it is impossible to determine whose fault or
negligence brought about the occurrence of the incident,
the one who had the last clear opportunity to avoid the
impending harm but failed to do so, is chargeable with the
consequences arising therefrom. Stated differently, the
rule is that the antecedent negligence of a person does
not preclude recovery of damages caused by the
supervening negligence of the latter, who had the last fair
chance to prevent the impending harm by the exercise of
due diligence.” (Philippine National Railways vs.
Vizcara, GR 190022)

This doctrine cannot be applied based on two reasons. First, it


presupposes negligence on both drivers but such negligence was not
proved on the part of the defendant. Second, it does not arise where
a passenger demands responsibility from the carrier to enforce its
contractual obligations.

“Negligence was defined as the omission to do something


which a reasonable man, guided by 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 the failure to observe
for the protection of the interests of another person, that
degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other person
suffers injury.” (Layugan vs. IAC, GR 73998)

A person can be proven to be negligent or he can be


presumed negligent. The law provides certain instances wherein one
may be presumed negligent. It provides that:

“Unless there is proof to the contrary, it is presumed that


a person driving a motor vehicle has been negligent if at
the time of the mishap, he was violating any traffic
regulation.” (New Civil Code, Article 2185)

As to the first reason, it can be clearly gleaned from the facts


the defendant was not violating any traffic rule for him to be
presumed negligent. Prior to the collision, he was driving on his
proper lane. He was not intoxicated nor was he driving beyond the
speed limit at the time of the mishap.

The plaintiff in this case failed to show proof of the defendant’s


alleged negligence nor the defendant’s alleged negligent act.

“The general rule is that the party who relies on


negligence for his cause of action has the burden of
proving the existence of the same, otherwise his action
fails.” (Abrogar vs. Cosmos Bottling Company, GR
164749)

Assuming for argument’s sake that the defendant is negligent,


the court has provided a test to determine its existence.

“The test by which to determine the existence of


negligence in a particular case may be stated as follows:
Did the defendant in doing the alleged negligent act use
what that person would have used in the same situation?
If not, then he is guilty of negligence.” (Picart vs. Smith,
GR L-122119)

In this test, a person is presumed to be negligent if the events


that occurred are those which the defendant could have foreseen or if
there is an indication warning him of the harm. The continued course
of the defendant cannot be said to have been out of negligence since
he could not have foreseen the consequences that will provide him
with sufficient time to adjust his course. The defendant could not be
faulted since he was forced to act in an immediate situation.

“An individual who suddenly finds himself in a situation of


danger and is required to act without much time to
consider the best means that may be adopted to avoid
the impending danger, is not guilty of negligence if he fails
to undertake what subsequently and upon reflection may
appear to be a better solution, unless the emergency was
brought by his own negligence.” (Valenzuela v. Court of
Appeals, 323 Phil. 374)

He could not have foreseen the incoming tricycle since it was


at a blind curve where there is limited sight of traffic. The point of
impact was exactly at the curve based on the sketch report prepared
by the police officers. Also, there was a trailer truck in front of the
tricycle which further obstructed the view of the defendant of the
incoming vehicle. Further, the tricycle failed to give a warning, i.e.
beeping of his horns, to indicate its presence.
Any responsible driver would expect any other responsible
driver to know the traffic rules and to abide by them. Thus, the
defendant driver would expect that no responsible driver would
overtake or even attempt to overtake at a blind curve, not drive while
intoxicated, and not take in passengers when he is drunk.

Anent the second reason, the last clear chance doctrine has
limitations in its applicability.

“The principle about the last clear chance, would call for
application in a suit between the owners and drivers of
the two colliding vehicles. It does not arise where a
passenger demands responsibility from the carrier to
enforce its contractual obligations.” (Philippine Rabbit
Bus Lines Inc. vs. The Honorable Intermediate
Appellate Court, GR 66102-04)

In the case at hand, the plaintiff, a passenger of the tricycle,


was the one who filed an action against the defendant who is, on the
other hand, the driver of the private van. The plaintiff who is neither
the owner nor the driver of the tricycle has no cause of action against
the defendant on the basis of the doctrine of last clear chance based
on the principle stated above. Even assuming that the plaintiff is the
driver or owner of the tricycle, the case shall not prosper for the
negligence of the defendant was not established. The course of
action of the defendant was not proved to be out of negligence.

2. The plaintiff justifies her claim for damages on the allegation that
the negligence of defendant Jovy was the ultimate cause of the
subject incident. An action for damages based on negligence is
provided for on Article 2176 of the New Civil Code which provides
that:

“Article 2176. Whoever by act or omission causes


damage to another, there being fault or negligence, is
obliged to pay for the damage done. Such fault or
negligence, if there was no pre-existing contractual
relation between the parties, is called quasi-delict and is
governed by the provisions of this chapter.”

This article presupposes that there should be negligence to


justify the awarding of damages. As discussed above, there is no
negligence on the part of the defendant. In fact, the proximate cause
of the mishap is the sole negligence of the tricycle driver, Edmundo
Velasco.

“Proximate cause is defined as that cause, which, in


natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury, and
without which the result would not have occurred. And
more comprehensively, the proximate legal cause is that
acting first and producing the injury, either immediately or
by setting other events in motion, all constituting a natural
and continuous chain of events, each having a close
causal connection with its immediate predecessor, the
final event in the chain immediately effecting the injury as
a natural and probable result of the cause which first
acted, under such circumstances that the person
responsible for the first event should, as an ordinary
prudent and intelligent person, have reasonable ground to
expect at the moment of his act or default that an injury to
some person might probably result therefrom.” (Villacar
Transit vs. Catubig, GR 175512)

The evidence on record shows that the proximate cause of the


incident is when the tricycle, driven by Edmundo Velasco, tried to
overtake a slow-moving trailer truck at a blind curve. The defendant
was on his side of the lane when the tricycle driver suddenly and
without prior warning nor signal encroached upon his lane causing
the incident for which the plaintiff is asking for damages. If Velasco
stayed at his lane and did not attempt to overtake a truck at a blind
curve, the mishap would not have occurred.

The facts of the case clearly show that it was Velasco who was
negligent in several ways. First, he violated Section 37 and Section
41 of RA 4136 when he abandoned his lane to overtake a truck.
During that instance, the other lane was not free since it was
occupied by the van.

“Sec.37. Driving on right side of highway. - Unless a


different course of action is required in the interest of the
safety and the security of life, person or property, or
because of unreasonable difficulty of operation in
compliance herewith, every person operating a motor
vehicle or an animal-drawn vehicle on a highway shall
pass to the right when meeting persons or vehicles
coming toward him, and to the left when overtaking
persons or vehicles going the same direction, and when
turning to the left in going from one highway to another,
every vehicle shall be conducted to the right of the center
of the intersection of the highway.” (RA 4136, Section 37)

“Sec. 41. Restrictions on overtaking and passing. (a) The


driver of a vehicle shall not drive to the left side of the
center line of a highway in overtaking or passing another
vehicle proceeding in the same direction, unless such left
side is clearly visible and is free of oncoming traffic for a
sufficient distance ahead to permit such overtaking or
passing to be made in safety.” (RA 4136, Section 41)

Section 37 mandates all motor and animal-drawn vehicles to


drive on the right-side of the highway unless doing so would be
unreasonable or difficult. In this case, there was absence of any
unreasonable and difficult situation that could have lead the tricycle
driven by Velasco to encroach upon the left side lane. Section 41
restricts overtaking and passing on the left side lane to instances
where the left side is clearly visible and free of traffic. In this case, the
tricycle failed to comply with this mandate since he overtook the truck
without a clear and visible sight of oncoming traffic from the left side
lane. It has been stressed by the High Court that overtaking
approaching a curve is not allowed. The evidence on record shows
that the tricycle had overtaken the truck on a curved portion of the
highway. Furthermore, overtaking drivers are charged with a high
degree of care and diligence, as well as the responsibility to see that
the oncoming traffic from the opposite direction are not take unaware
of his presence.

“When overtaking another, it should be made only if the


highway is clearly visible and is free from oncoming vehicle.
Overtaking while approaching a curve in the highway, where
the driver’s view is obstructed, is not allowed. Corollarily,
drivers of automobiles, when overtaking another vehicle, are
charged with a high degree of care and diligence to avoid
collision. The obligation rests upon him to see to it that vehicles
coming from the opposite direction are not taken unaware by
his presence on the side of the road upon which they have the
right to pass.” (Dumayag v. People of the Philippines, GR
172778)

Second, Velasco violated the Anti-Drunk and Drugged Driving


Act of 2013 when he tested positive for alcohol intake. Despite his
state of intoxication, he took in some passengers in his vehicle.

“Motorists cannot drive if they are under the influence of


alcohol, dangerous drugs, or other inebriating
substances.” (RA No 10586, Section 5)

For the lack of negligence on the part of the defendant, he is


not liable to pay for damages.

3. Lastly, plaintiff is claiming that defendant is negligent in the


selection of her employees through the driver she hired, Jovy Cortez.
Plaintiff is arguing the contents of Article 2180 of the Civil Code
which states, to wit:

xxxxxxxxx

Employers shall be liable for the damages caused by their


employees and household helpers acting within the scope of their
assigned tasks, even though the former are not engaged in any
business or industry.

xxxxxxxxx

In the selection of prospective employees, employers are


required to examine them as to their qualifications, experience, and
service records. On the other hand, with respect to the supervision of
employees, employers should formulate standard operating
procedures, monitor their implementation, and impose disciplinary
measures since in an injury is caused by the negligence of an
employee, a legal presumption instantly arises that the employer was
negligent, either or both, in the selection and/or supervision of his
said employee duties. [Syki vs. Begasa, G.R. No. 149149, October
13, 2003.]

In addition to this, due diligence in the supervision of


employees, on the other hand, includes the formulation of suitable
rules and regulations for the guidance of employees and the issuance
of proper instructions intended for the protection of the public and
persons with whom the employer has relations through his or its
employees and the imposition of necessary disciplinary measures
upon employees in case of breach or as may be warranted to ensure
the performance of acts indispensable to the business of and
beneficial to their employer. [MMTC vs. CA, GR. No. 104408, June
21, 1993]

However, the argument holds no ground in this case.

The court ruled in the case of Metropolitan Manila Transit


Corporation vs. The Court of Appeals:

“In order that the defense of due diligence in the selection and
supervision of employees may be deemed sufficient and plausible, it
is not enough to emptily invoke the existence of said company
guidelines and policies on hiring and supervision as the negligence of
the employee gives rise to the presumption of negligence on the part
of the employer.

The mere allegation of the existence of hiring procedures and


supervisory policies, without anything more, is decidedly not sufficient
to overcome presumption.” [MMTC vs. CA, GR. No. 104408, June
21, 1993]

A negligent employee generally implies a negligent employer,


which in this case, negligence on the part of Cortez and Martinez has
not been proved. To determine whether there is proper selection and
supervision of the employees would be moot in a case where there
has been no trace of negligence on the part of the defendant herself
and that the accident arose from the negligence of plaintiff himself in
overtaking a blind curve while intoxicated.

We reiterate the definition of negligence in the ruling in the case


of Layugan vs. IAC, to wit:

“Negligence was defined as the omission to do something


which a reasonable man, guided by 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 the failure to observe
for the protection of the interests of another person, that
degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other person
suffers injury.” (Layugan vs. IAC, GR 73998)

Indeed, negligence is inexistent in a case where the


defendant, absent the proof of negligence, hits a tricycle driver,
the latter having the facts established that he was overtaking on
a blind curve and was found to have been drinking prior to the
accident.

To rule in favor of the plaintiff would be tantamount to


allowing him to benefit from the fruits of his negligence and
allow an innocent party to shoulder his faults.

Additionally, having properly laid down the definition of


proximate cause, we find Edmundo Velasco as the proximate
cause of the accident, him failing to exercise the necessary
requirement of diligence in his overtaking a truck on a blind
curve while intoxicated.

Velasco, being the proximate cause of the accident and


absent proof as to Jovy Cortez’s negligence, we cannot allow
Velasco to claim negligence of employment to be attributed to
the latter in a claim for damages.

We find then the need to discuss plaintiff’s accusation


against defendant that the latter failed to exercise diligence
required in employing her driver as unnecessary since Velasco
was the proximate cause of the accident himself.

V. CONCLUSION

With the laws and jurisprudence presented, the defendant


through his counsel believes that the plaintiff has no cause of action
in filing the case for damages based on the doctrine of last clear
chance; that assuming arguendo that the doctrine applies, the plaintiff
cannot claim from defendants since the same applies only to a suit
between owners and drivers of the two colliding vehicles; that the
proximate cause of the incident is the negligence of the tricycle driver,
hence defendants are not liable; and that to further analyze the
existence or lack thereof of the diligence required by law in the
selection and supervision of employees as moot.

Baguio City, 8th day of February, 2018

Baguio City

By:

Apolinario Bagano
Counsel for Defendant

Co-Counsel:

Genesaret Camlas

Jennifer Daguman

Czarina Pangket

Elyza Sibayan

Jenina Tagayo