TORTS & DAMAGES Finals to confer with him, or without the consent of the • the fact that a physician
without the consent of the • the fact that a physician or surgeon
Negligence of HealthCareProfessionals
Primary objective:
The preservation of life and maintenance of the health of the
people
The duty of the physician has its foundation in public
consideration; any slip or breach in the performance of that
duty, no matter how small, is corrosive of that public faith.
MEDICAL MALPRACTICE
This 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
Elements of medical negligence:
1. Duty;
2. Breach;
3. Injury; and
4. proximate causation
Some acts or omissions constituting
negligence or malpractice
(a) wrong diagnosis, when such results from want of
requisite skill or care;
(b) unwarranted abandonment of a case after its
assumption, at least where he does not give
reasonable notice or pro- vide a competent physician
in his place;
(c) operating without patient’s consent where a patient
is in possession of his faculties and in such physical
health as to be able to consult about his condition,
and no emergency exists in making it impracticable
parents, spouse or guardian, in the absence of an
emergency;
Some acts or omissions constituting
negligence or malpractice
(a) failing to give the patient or his family or attendants
all necessary and proper instructions as to the care
and attention to be given to the patient and the
cautions to be observed;
(b) allowing a foreign substance to enter or remain in
the body of the person operated on, and this extends
to the sponges and pads;
(c) failing to give warning when at- tending to a patient
afflicted with contagious or infectious disease,
(d) writing an erroneous prescription; or
(e) issuing wrongful certificate of insanity or inebriety
NOTE:
• a doctor has the duty to inform the patient
fully of his condition, and of the results of
the tests made.
• If the physician discovers, or should
know or discover, that the patient’s
ailment is beyond his knowledge or
technical skill, ability or capacity to treat
with a likelihood of reasonable success,
he is also under duty to disclose that fact
to the patient and advise him of the
necessity of other or different treatment.
• It has also been recognized that there
exists a duty on the part of the physician
to advise his patient to consult a specialist
or one qualified in a method of treatment
which the physician is not qualified to
give.
1
renders his services gratuitously does not
absolve him from the duty to use
reasonable and ordinary care, skill and
diligence
• Also, an offer to perform a second
operation to remedy the effect of an
unskillful or carelessly performed former
operation or treatment is no defense to an
action for malpractice in the first
operation or treatment and although the
principle of volenti non fit injuria has
been invoked to prevent a recovery,
consent of the patient to an operation does
not ordinarily relieve defendant from
liability
Standard of Care
GENERAL RULE:
required to possess and exercise the degree of skill and
learning ordinarily possessed and exercised under similar
circumstances by the members of his profession in good
standing, and to use ordinary and reasonable care and
diligence, and his best judgment, in the application of his skill
to the case
EXCEPTION:
a physician holding himself out as having special knowledge
and skill in the treatment of a particular organ, disease or type
of injury is bound to bring to the discharge of his duty to a
patient employing him as such specialist, not merely the
average degree of skill possessed by general practitioners, but
that special degree of skill and knowledge possessed by
physicians who devote special study and attention to the
treatment of such organ, disease or injury, regard being had of
the state of scientific knowledge at the time
Dr. Ninevetch Cruz v. CA
Whether or not a physician committed an inexcusable lack of
precaution in the treatment of his patient is to be determined
according to the standard of care observed by other members
of the profession in good standing under similar circumstances
bearing in mind the advanced state of the profession at the time
of treatment or the present state of medical science
General Practitioners vs. Specialist
the standard of care demanded from a general
practitioner is ordinary care and diligence in the application of
his knowledge and skill in his practice of the profession. He
ought to apply to his patient what other general practitioners
will apply when confronted with similar situation.
Captain of the Ship Doctrine
The head surgeon is made responsible for everything that goes
wrong within the four corners of the operating room.
It enunciates the liability of the surgeon not only for the
wrongful acts of those who are under his physical control but
also those wherein he has extension of control.
NOT WARRANTORS OR INSURERS
Four elements that establish negligence in medical practice:
• 1. Duty- The duty owed to the patient
• It undertaken as soon as a doctor agrees to examine
the case, which implies the establishment of doctor-
patient relationship
• The relationship is created when the patient engages
in the services of the doctor and the doctor agrees to
provide care to the patient
• By accepting a case, the doctor or hospital
commenced the duty to render medical service in
favor of the patient in accordance with the expected
training and skill of a medical practitioner (Garcia-
Rueda vs. Pacasio)
• 2. Breach- “Whosoever causes damage to another by
an offence shall make it good.”
• Breach of the standard of care expected of other
similarly trained medical professionals acting under
the same circumstances
• 3. Injury- Injury, liability, or even death, arises as a
consequence of a negligent medical
treatment/procedure
• Injury to the patient should be the direct result of the
doctor’s beach
• “Was the party who allegedly caused the injury
behaving as carefully and as a reasonable person
would have behaved under the same circumstances?
If not, then that party was negligent and committed
the tort of negligence”
• 4. Proximate Causation- The act or omission
complained of is the proximate cause of the injury
suffered. The proximate cause of an injury is that
cause that, in the natural and continuous sequence,
unbroken by any efficient intervening cause,
produces the injury, and without which the result
would not have occurred. (Vda. de Bataclan v.
Medina, 102 Phil. 181, 186 [1957].)
• Causation frequently is divided into two separate
inquiries:
• 1) whether the professional’s actions in fact caused
the harm to the patient, and 2) whether the
professional’s actions were the proximate cause of
the patient’s harm.
Garcia vs. Salvador
GR No. 168512
Four elements that establish negligence in medical practice
Facts:
2
• Salvador was working as a trainee with Limay Bulk
Handling Terminal. As a requirement for her regular
employment, she underwent a medical examination
at the Community Diagnostic Center (CDC) wherein
she was made to go through a hepatitis examination
conducted by Garcia, its medical technologist. When
the results came, it showed she was hepatitis
positive. Her results bore the name of Garcia as
examiner, and a rubber stamp signature of Castro as
pathologist.
• Because of the results of her medical examination,
she was terminated from employment for failure to
pass the medical examination
• Additionally, when she told her father of the news,
her father had a heart attack and was confined at the
Bataan Doctor’s Hospital
• Salvador underwent a procedure in the latter
hospital similar to the one she underwent through at
CDC. In this particular procedure, the results came
in NEGATIVE
• She informed her employer of the different result of
the test, and the company asked her to undergo the
same tests back in CDC.
• The confirmatory testing showed that Salvador was
hepatitis NEGATIVE and CDC issued a certificate
correcting the initial result
• Thereinafter, Salvador was rehired
• Salvador filed a complaint for damages against
Garcia and Castro, claiming that by reason of the
erroneous interpretation of her results, she lost her
job and suffered serious mental anxiety, and her
father was hospitalized
Issue: WON CDC is liable for the misinterpretation of the test
results
Ruling: YES
TEST OF NEGLIGENCE FOR HEALTHCARE
PROVIDERS
1. DUTY
2. BREACH
3.INJURY
4. PROXIMATE CAUSATION
Owners and operators of clinical laboratories have
the duty to comply with statutes, as well as rules and
regulations, purposely promulgated to protect and
promote the health of the people by preventing the
operation of substandard, improperly managed and
inadequately supported clinical laboratories and by
improving the quality of performance of clinical
laboratory examinations.
Their business is impressed with public interest, as
such, high standards of performance are expected
from them.
Sec. 9. Management of the Clinical Laboratory:
9.1 Head of the Clinical Laboratory: The head is that person
who assumes technical and administrative supervision and
control of the activities in the laboratory.
• For all categories of clinical laboratories, the head
shall be a licensed physician certified by the
Philippine Board of Pathology in either Anatomic or
Clinical Pathology or both provided that:
• (1) This shall be mandatory for all categories of
free-standing clinical laboratories; all tertiary
category hospital laboratories and for all secondary
category hospital laboratories located in areas with
sufficient available pathologist.
• xxxx
Sec. 11. Reporting: All laboratory requests shall be considered
as consultations between the requesting physician and
pathologist of the laboratory. As such all laboratory reports on
various examinations of human specimens shall be construed
as consultation report and shall bear the name of the
pathologist or his associate. No person in clinical laboratory
shall issue a report, orally or in writing, whole portions thereof
without a directive from the pathologist or his authorized
associate and only to the requesting physician or his authorized
representative except in emergencies when the results may be
released as authorized by the pathologist.
• TERMINATED
• SUFFERED ANXIETY
• COMPELLED TO UNDERGO SEVERAL TESTS
• All injuries sustained by Salvador could have been
avoided had the proper safeguards in conducting the
clinical examination were followed in conducting
the clinical examination
PROOF
Q: How do we determine whether or not the physician
exercised the requisite degree of skill and care in the treatment
of his patients?
EXPERT TESTIMONY
• “The deference of courts to the expert opinion of
qualified physicians stems from the former’s
realization that the latter possess unusual technical
skills which laymen in most instances are incapable
intelligently evaluating, hence the indispensability
of expert testimonies” (Li vs. Soliman GR
No165279)
• REASON: Because as a general rule, when the
qualifications of a physician are admitted, it is
PRESUMED THAT IN PROPER CASES HE
TAKES THE NECESSARY PRECAUTION AND
EMPLOYS THE BEST OF HIS KNOWLEDGE
AND SKILL IN ATTENDING TO HIS CLIENTS
• EXC: IF THE CONTRARY IS PROVED (through
expert opinion)
• IOW, the GR is rebuttable by expert opinion
3
GARCIA-RUEDA vs. PASCASIO
278 SCRA 769
• Ruling:
• In accepting a case, a doctor in effect represents
that, having the needed training and skill possessed
by physicians and surgeons practicing in the same
field, he will employ such training, care and skill in
the treatment of his patients. He therefore has a duty
to use at least the same level of care that any other
reasonably competent doctor would use to treat a
condition under the same circumstances.
• It is in this aspect of medical malpractice that expert
testimony is essential to establish not only the
standard of care of the profession but also that the
physician's conduct in the treatment and care falls
below such standard. Further, inasmuch as the
causes of the injuries involved in malpractice
actions are determinable only in the light of
scientific knowledge, it has been recognized that
expert testimony is usually necessary to support the
conclusion as to causation
• The evidence typically required takes the form of a
TESTIMONY BY OTHER DOCTORS IN THE
SAME OR RELATED FIELDS OF PRACTICE and
of MEDICAL LITERATURE and REGULATIONS
that have been duly proven before the court
• Evidence should also be presented to prove that the
doctor failed to abide by these standards
• Absent the finding of these standards, a finding of
liability can be difficult to sustain
PROOF OF MEDICAL NEGLIGENCE
• Q: Who has the burden of proof of establishing
negligence by a medical practitioner?
• PLAINTIFF
GR: EVIDENCE AGAINST THE DOCTOR MUST BE
PROVED BY PRESENTING AN EXPERT WITNESS
EXC: RES IPSA LOQUITUR
• “the thing speaks for itself”
• The need for expert testimony can be dispensed with
• Limited to cases where the court from its fund of
common knowledge can determine the standard of
care
• These are the cases where an ordinary layman can
conclude that there was negligence on the part of the
doctor. Situations where a layman is able to say, as a
matter of common knowledge and observation, that
the consequences of professional care were not as
such as would ordinarily have followed due care had
been exercised (Reyes vs. Sisters of Mary)
• Resorted to when there is no other way, under the
usual and ordinary conditions, by which the patient
can obtain redress for the injuries suffered
• Res ipsa loquitur – a procedural or evidentiary rule
which means “the thing or the transaction speaks for
itself.” It is a maxim for the rule that the fact of the
occurrence of an injury, taken with the surrounding
circumstances, may permit an inference or raise a
presumption of negligence, or make out a plaintiff’s
prima facie case, and present a question of fact for
defendant to meet with an explanation, where
ordinarily in a medical malpractice case, the
complaining party must present expert testimony to
prove that the attending physician was negligent
• (Ramos vs CA GR No. 124354)
RAMOS vs. CA
GR No. 124354
Application of Res Ipsa Loquitur in medical negligence
FACTS:
• Erlinda Ramos underwent a surgical procedure to
remove stone from her gall bladder
(cholecystectomy). They hired Dr. Hosaka, a
surgeon, to conduct the surgery at the De Los Santos
Medical Center (DLSMC). Hosaka assured them
that he would find a good anesthesiologist. But the
operation did not go as planned, Dr. Hosaka arrived
3 hours late for the operation, Dra. Gutierrez, the
anesthesiologist “botched” the administration of the
anesthesia causing Erlinda to go into a coma and
suffer brain damage. The botched operation was
witnessed by Herminda Cruz, sister in law of
Erlinda and Dean of College of Nursing of Capitol
Medical Center.
• The family of Ramos (petitioners) sued the hospital,
the surgeon and the anesthesiologist for damages.
The petitioners showed expert testimony showing
that Erlinda's condition was caused by the
anesthesiologist in not exercising reasonable care in
“intubating” Erlinda. Eyewitnesses heard the
anesthesiologist saying “Anghirap ma-intubate nito,
maliyataangpagkakapasok. O lumalakiangtiyan.”
Diagnostic tests prior to surgery showed that Erlinda
was robust and fit to undergo surgery.
ISSUES: Whether or not the private respondents were
negligent and thereby caused the comatose condition of
Ramos.
HELD:
Yes, private respondents were all negligent and are solidarily
liable for the damages.
This doctrine, Res Ipsa Loquitur, finds application in this case.
On the day of the operation, Erlinda Ramos already
surrendered her person to the private respondents who had
complete and exclusive control over her. Apart from the
gallstone problem, she was neurologically sound and fit Then,
after the procedure, she was comatose and brain damaged—res
ipsa loquitur!—the thing speaks for itself!
In the present case, Erlinda submitted herself for
cholecystectomy and expected a routine general surgery to be
4
performed on her gall bladder. On that fateful day she
delivered her person over to the care, custody and control of
private respondents who exercised complete and exclusive
control over her. At the time of submission, Erlinda was
neurologically sound and, except for a few minor discomforts,
was likewise fit in mind and body
However, during administration of anesthesia and prior to the
performance of cholecystectomy she suffered irreparable
damage to her brain. Thus, without undergoing surgery, she
went out of the operating room already decerebrate and totally
incapacitated.
Obviously, brain damage which Erlinda sustained does not
normally occur in the process of a gall bladder operation. In
fact, this kind of situation does not happen in the absence of
negligence of someone in the administration of anesthesia and
in the use of endotracheal tube. Normally, a person being put
under anesthesia is not rendered decerebrate as a consequence
of administering such anesthesia if the proper procedure was
followed.
Furthermore, the instruments used in the administration of
anesthesia, including the endotracheal tube, were all under the
exclusive control of private respondents, who are the
physicians- in-charge. Likewise, petitioner Erlinda could not
have been guilty of contributory negligence because she was
under the influence of anesthetics which rendered her
unconscious.
Considering that a sound and unaffected member of the
unconscious and under the immediate and exclusive control of
dictates the application of res ipsa loquitur. Upon these facts
and under these circumstances the Court would be able to say,
as a matter of common knowledge and observation, if
negligence attended the management and care of the patient.
Moreover, the liability of the physicians and the hospital in this
case is not predicated upon an alleged failure to secure the
desired results of an operation nor on an alleged lack of skill in
the diagnosis or treatment as in fact no operation or treatment
was ever performed on Erlinda.
Thus, upon all these initial determination a case is made out for
the application of the doctrine of res ipsa loquitur.
TN: the doctrine of Res Ipsa Loquitur does not automatically
apple to all cases of medical negligence
ELEMENTS
• In cases involving medical negligence, the doctrine
of res ipsa loquitur allows the mere existence of an
injury to justify a presumption of negligence on the
part of the person who controls the instrument
causing the injury, provided that the following
requisites concur:
1. The accident is of a kind which ordinarily does
not occur in the absence of someone’s negligence;
2. It is caused by an instrumentality within the
exclusive control of the defendant or defendants;
and
3. the possibility of contributing conduct would
make the plaintiff responsible is eliminated.
• (Dr. Fernando Solidumva. Pp,. )
Cases where Res Ipsa Loquitur has been applied
Thus, courts of other jurisdictions have applied the doctrine in
thefollowing situations:
1. leaving of a foreign object in the body of the
patient after an operation
2 injuries sustained on a healthy part of the body
which was not under, or in the area, of treatment
3. removal of the wrong part of the body when
another part was intended, 3
4 knocking out a tooth while a patient's jaw was
under anesthetic for the removal of his tonsils,
5. loss of an eye while the patient plaintiff was
under the influence of
anesthetic, during or following an operation for
appendicitisAmong other cases.
LIABILITY OF HOSPITALS AND CONSULTANTS
The hospital itself is not liable under Article 2180 in the
absence of employer-employee relationship.
● First, a hospital does not hire or engage the services
of a consultant, but rather accredits the latter and
grants him/her the privilege of maintaining a clinic
and/or admitting patients in the hospital.
● Second, it is not the hospital but the patient who
pays the consultants fee for services rendered by the
latter.
● Third, a hospital does not dismiss a consultant
instead the latter may lose his/her accreditation or
privileges granted by the hospital.
● Lastly, when a doctor refers a patient for admission
in the hospital, it is the doctor who prescribes the
treatment to be given to said patient.
The hospitals obligation is limited to:
● Providing the patient with the preferred room
accomodation, the nutritional diet and medications
prescribed by the doctor.
● Providing the equipment and facilities necessary for
the treatment of the patient.
● As well as the services of the hospital staff who
perform the ministerial tasks of ensuring that the
doctors orders are carried out strictly.
● A hospital does not pay any of its consultants for
medical services rendered by the latter to their
respective patients.
● Moreover, the contract between the consultant in
hospitals and his patient is separate and distinct from
the contract between hospital and said patient.
Cruz vs Court of Appeals
GR No. 122445
November 18, 1997
5
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.
Facts:
Lydia Umali was examined by Dr. Cruz who found a myomain
her uterus, and scheduled her for a hysterectomy operation on
23 Mar 1991. Rowena Umali de Ocampo accompanied her
mother to the hospital a day before the operation. Rowena
noticed that the clinic was untidy.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.
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
WON the circumstances are sufficient to sustain a judgment of
conviction against Dr. Cruz for reckless imprudence resulting
in homicide.
RULING
NO. DR. CRUZ IS ACQUITTED, BUT SHE IS STILL
CIVILLY LIABLE (50K civil liability; 100k moral damages,
50k exemplary damages)
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. Thus
her acquittal of the crime of reckless imprudence resulting in
homicide.
Liabilities of The Lawyer
• Canon 18
governs the conduct of lawyers.
Provides that “ a lawyer shall serve his client with competence
and diligence. It is his responsibility not to undertake a legal
service he knows or should know that he is not qualified to
render. He is also enjoined not to handle any legal matter
without adequate preparation.
• Canon 18.03
provides that “A lawyer shall not neglect a legal
matter entrusted to him and his negligence in connection
therewith shall render him liable.
• Atienza V Evangelista
Facts:
The complaint was submitted by Atienza to his
lawyer Vicente Evangelista a member of the Philippine Bar. It
was alleged that he was remiss in attending to her case with
Manila Fiscals Office and having been retained and paid for
his services but he denied in any imputation of lack of due
diligence in performing the legal services required of him. He
asserted in a manner that he had always conducted himself in a
manner expected as a lawyer. That there was a
recommendation of the city fiscal’s office that the case he was
handled be dropped for insuffieciency of evidence. This case
involved the husband of Mrs. Atienza the compalinants case
was dismissed not because of the service rendered by Atty.
Evangelista but because of the failure of the complainant’s
witness to submit to cross examination. This is clear from a
reading of Fiscal’s Memorandum. The said memorandum
reads that: the hearing of the case of Atienza has been
continuously postponed several times because of the failure of
the prosecution witness to appear. Should they be unable tp
produce the witnesses at the next hearing they would submit
their case on the basis of the evidence already on record that on
October 25, 1972 only the counsel for the complainant
appeared. His client did not and their witness did not arrive.
• ISSUE
Whether the respondent was wilfully negligent in the
performance of his duties as a counsel to the complainant to
the damage and prejudice of the latter.
RULING:
The complaint against Atty. Evangelista was dismissed.
The dismissal case of Mrs. Atienza case is not imputable to
respondent. A member of the bar cannot be subject to a
disbarment simply because of decision adverse to his client.
This court is in agreement. It would place an intolerable burden
on a member of the bar if it just because a client jailed to
obtain what is sought by her after due exertion of the required
effort on his part he would be held liable. Success in a
litigation is certainly not the test of whether or not a lawyer
had lived up to his duties to a client. It is had taken all the steps
to prosecute his suit. It is enough that he had taken that with all
6
thorough preparation of the case handled him. If thereafter the
result would be frustration of his client hopes that is a cause for
disappointment no doubt for him no less for his client but bot
for disciplinary action.
Negligence of Accountants and Auditors
SIMPLE NEGLIGENCE
• Part of a financial professional includes errors that
an average, reasonable accountant would not make.
These errors might include:
• Poorly kept financial books
• Accounts receivable errors
• Incorrect advice on accounting matters
• Mistakes on tax returns
• Faulty estate planning advice
• Faulty audits
• Failure to detect fraud
• Wrongful certification of financial statements
Legal Liability of a Certified Public Accountant
• CPAs have common law liability and statutory law
liability. Common law liability arises from
negligence, breach of contract, and fraud. Statutory
law liability is the obligation that comes from a
certain statute or a law, which is applied, to society.
Recoveries from these liabilities vary by their source
or “theory”. Some of these theories are:
• Privity: CPAs and their clients enter into a contract
with an agreement to perform certain services.
Liability occurs when there is a breach of contract.
This applies to the CPA if they don’t perform what
they stated in the engagement letter and the client
suffers damages.
• Professional negligence: Negligence may be viewed
as “failure to exercise due professional care". Both
clients and third parties can sue CPAs for the tort of
negligence, which is a wrongful act, injury, or
damage for which a civil action can be brought.
Negligence can be referred to as ordinary negligence
 and gross negligence. Ordinary negligence is
defined as failure of duty in accordance with
applicable standards, and gross negligence is the
lack of concern for the likelihood that injuries will
result.
• Fraud: Fraud is defined to be a misrepresentation of
a material fact by a person who is aware of his or
her actions, with the intention of misleading the
other party with the other party injured as a result.
• Statutory liability: CPAs have statutory liability
under both federal and state securities laws.
Statutory liability provides cover for defense costs,
fines and penalties charged against the firm. Under
statutory law, an auditor can be held civilly or
criminally liable.
• Liability to clients
• CPAs have an obligation to their clients to exercise
due professional care. With an engagement letter, it
provides the client and other third parties with rights
of recovery. Therefore, if the CPAs are not
performing within the agreement set forth in the
contract this will be considered a breach of contract.
The clients may also claim negligence against the
CPAs if the work was performed but contained
errors or was not done professionally. This is
considered a tort action.
• In order to recover from an auditor under common
law, the client must prove:
• Duty of care
• Breach of Duty
• Losses
• Causation
• CPAs may defend against a breach of contract if
they can prove that the client’s loss occurred
because of factors other than negligence by the
auditors. If the auditor proves the loss resulted from
causes other than the auditor’s negligence, a client
may be accused of contributory negligence. If a state
follows the doctrine of contributory negligence, the
auditor may eliminate their liability to the client
based on contributory negligence by the client.
Many states do not follow this doctrine.[7] Most
states permit a jury to assess the fault and apply the
correct percentage of fault to the parties involved.
This is called comparative negligence
• Liability to third parties.
• Not all suits brought to an auditor are from a direct
client. Third parties can also sue an auditor for
fraud, in which case a contract (privity) is necessary.
In order for a third party to prevail in a case, there
are a number of things they must prove. First, the
third party must prove that the auditor had a duty to
exercise due care. Second, the third party must
prove that the auditor breached that duty knowingly.
Third, the third party must prove that the auditor's
breach was the direct reason for the loss. Finally, the
third party must prove that they suffered an actual
loss.
• Ultramares (known user) approach.
• In order for the court to decide if the auditor's duty
actually extended to the third party, for ordinary
negligence, there are four legal approaches each
state could follow. First is the Privity approach,
which states the auditor is liable to a third party if an
existence of a contract is in existence.[dubious –
discuss]
This approach was established in Ultramares
Corporation v. Touche and is the most limiting
approach in respect to scope.[9] Ultramares occurred
in 1933 where the defendant CPA distributed an
unqualified opinion on the balance sheet of a
company. In addition to the CPAs estimations,
Ultramares wrote out several loans to the company
shortly before the company declared bankruptcy.
Ultramares sued the CPA for ordinary negligence.
The New York Court of Appeals ruled that CPAs
are held accountable for ordinary negligence to their
clients and third parties who identify themselves as
users of the CPAs reports.
7
• The "near privity" approach was established
in Credit Alliance Corp. v. Arthur Andersen
&Company.This approach states that the auditor has
liability under ordinary negligence if the third party
is known to be using the financial statements and
there has been some sort of direct communication
between the two parties. An example could be the
auditor directly giving a report to the bank that will
be providing the loan for an actual client
• Restatement of Torts (foreseen user) approach
• The "foreseen" or "Restatement Standard" approach
was established by the American Law Institute’s
(ALI) Second Restatement of Law of Torts. With
this approach the auditor is liable to all third parties
in which their reliance is foreseen even if the auditor
doesn't know the third party. This approach came
about due to Rusch Factors, Inc. v. Levin. In this
case, the CPA was found accountable for ordinary
negligence to the third party who had not been
specifically identified but the CPA was aware that
the financial statements were to be used by this
party.
• Rosenblum (foreseeable user) approach
• The "reasonably foreseeable" approach which was
created due to Rosenblum v. Adler. This method is
very liberal and broad in terms of scope, unlike the
privity approach. This system holds an auditor liable
to all third parties that rely on financial statements.
• Criminal liability under the Securities Acts
• The Continental Vending case (also known
as United States v. Simon) has set the precedent of
severe charges for accountants. In this case, the U.S.
court of appeals convicted three CPAs of gross
negligence. Although the CPAs had proof to
establish that they complied with U.S. generally
accepted accounting principles and the U.S.
generally accepted accounting standards, Mano
states that the district court judge instructed the jury
that mere compliance with professional accounting
standards was not a complete defense. This led to
 the conviction of the three CPAs, who were later
pardoned by President Richard Nixon.
• As the accounting standards and principles evolve, it
is essential for those in regulation, of litigation and
in the accounting profession to be aware of the
principles and the potential risks affiliated with the
system concerning liability. The Securities and
Exchange Commission (SEC) along with the Public
Company Accounting Oversight Board (PCAOB)
have implemented consequences for those who are
involved in auditing fraud and any other illegal or
unethical behavior in the field. In 1995, the SEC
established the Private Securities Litigation Reform
Act which in essence mandated auditors to have
even stricter guidelines as they pertains to any
fraudulent or misleading behavior of their
clients. This act simply states that the auditors must
promptly report any illegal acts of its clients to the
company’s board of directors and if severe enough,
to the SEC. According to the guidelines of this Act,
auditors are relieved of sanctions if they report
required information about clients to the SEC in a
timely manner.
Statutory Liability
• The definition of statutory law is written law,
created by state or federal legislative bodies.
Lawsuits brought against auditors based on statutory
provisions differ from those under common law.
While common law can vary from state to state and
has the ability to evolve or change, statutory law is
constrained to a greater degree by the underlying
law. The two most important laws relating to
auditors’ liability are the Securities Act of 1933 and
the Securities Exchange Act of 1934. CPAs must
also be concerned with the application of
the Racketeer Influenced and Corrupt Organizations
Act (RICO) and with each state’s blue sky
laws (which regulate the issuance and trading of
securities within a certain state).[17]
• The Securities Act of 1933 requires a company to
register with the Securities and Exchange
Commission (SEC). In order to complete
registration, the company must include audited
financial statements and numerous other disclosures.
If the registration statement was to be found
materially misstated, both the company and its
auditors may be held liable. Those who initially
purchase a security offered for sale are the only ones
protected by the 1933 Act. These security
purchasers, known as the plaintiffs, only need to
prove a loss was constant and that the registration
statement was misleading. They do not need to
prove that they relied upon the registration or that
the auditors were negligent. In order for an auditor
to avoid liability, they must provide proof that the
audit was performed with due diligence, the
plaintiff’s losses were not caused by misstated
financial statements, the plaintiffs knew of the
misstatement at the time the securities were
purchased, or the statute of limitations had expired
(one year after the discovery of the misstatement,
but no more than three years after the security was
offered to the public).[ The due diligence defense is
the defense that most auditors raise, even though it
is difficult for auditors to prove their innocence. The
standing precedent on interpretation of due diligence
is Escott v. BarChris Construction Corporation,
decided in 1968.
• The Securities Exchange Act of 1934 requires all
companies under SEC jurisdiction to file an annual
audit and have quarterly review of financial
statements. While the 1933 Act creates liability only
to those investors involved in the initial distribution
of public offerings, the 1934 Act increases that
responsibility to subsequent purchasers and sellers
of the stock. This act provides absolute protection to
original and subsequent purchasers and sellers of
securities. These plaintiffs must prove that:
• there was a substantial loss,
• the financial statements were misleading, and
• they relied upon the financial statements.
Can you sue your accountant for negligence?
8
• YES If you have suffered a financial loss due
to your accountant's advice you may be entitled to
claim compensation from them. ... If the advice
given falls below the standard you should
reasonably expect from an accountant then you may
be able to sue your accountant for negligence.
What happen if your accountant makes a mistake?
• If the IRS is charging you a penalty for a
tax mistake, even if that mistake was made
by your preparer, pay it. ... If it doesn't receive its
payment, you are the one who will face additional
financial penalties. If your tax preparer refuses to
pay for its mistake, send a check to the IRS.
Are tax preparers responsible for the mistakes?
• As the taxpayer, you are primarily responsible for
any errors on your tax return. ... However,
reputable tax preparers usually correct their
mathematical errors without charge. They also pay
any IRS penalty or interest caused by determination
of the correct tax after the due date
• s a business owner, you are not without a remedy
when your CPA fails to file your business's tax
return. You legally can seek compensation from
the CPA for money you lost due to her negligence.
... You possess the legal right to sue your CPA for
malpractice in order to obtain compensation
for your losses.
How long a tax preparer required to keep records?
• Even if your client keeps a copy of his tax returns,
you're still obligated to retain his tax records.
Internal Revenue Service Bulletin 2012-11 states
that tax preparers must maintain tax returns, along
with supporting tax documentation, for a minimum
of three years.
•
HUMAN RELATION RELATIONS: INTENTIONAL
TORTS
Reason for Chapter on Human Relations
articles in this wise:
 Chapter 2 of the Preliminary Title of the New Civil
Code entitled “Human Relations” is not found in
Old Civil Code.
 “Chapter 2 of the Preliminary Title is devoted to
“Human Relations.” Therein are formulated some
basic principles that are to be observed for the
rightful relationship between human beings and for
the stability of the social order. The present Civil
Code merely states the effects of the law, but fails to
draw the spirit of the law. This chapter is designed
to indicate certain norms that spring from the
fountain of good conscience. These guides for
human conduct should run as golden threads
through society, to the end that law may approach its
supreme ideal, which is the sway and dominance of
justice “
CATCH ALL PROVISIONS : CONCEPTS
 The expanded coverage of tort finds resonance in
Articles 19, 20 and 21 of the New Civil Code.
 Art. 19. Every person must, in the exercise of his
rights and in the performance of his duties, act with
justice, give everyone his due, and observe honesty
and good faith.
 Article 19, is believed to be a mere declaration of
principles which is being implemented by other
provisions
 Art. 20. Every person who, contrary to law, willfully
Globe Mackay Cable and Radio Corporation vs. Court of
or negligently causes damage to another, shall
Appeals, 176 SCRA 778 [1989]
indemnify the latter for the same.
 The Code Commission expressed the view that the
rule under Article 20 “pervades the entire legal
system, and renders it impossible that a person who
suffers damage because an- other has violated some
legal provision, should find himself without relief.”
 Article 19 declares a principle of law and Article 21
gives flesh to its provisions.
The Supreme Court explained the significance of the said
 Article 19, known to contain what is commonly
referred to as the principle of abuse of rights, sets
certain standards which may be observed not only in
the exercise of one’s rights but also in the
performance of one’s duties. These standards are the
following: to act with justice; to give everyone his
due; and to observe honesty and good faith. The
law, therefore, recognizes the primordial limitation
on all rights: that in their exercise, the norms of
human conduct set forth in Article 19 must be
observed. A right, though by itself legal because
recognized or granted by law as such, may
nevertheless become the source of some illegality.
When a right is exercised in a manner which does
not conform with the norms enshrined in Article 19
and results in damage to another, a legal wrong is
thereby committed for which the wrongdoer must be
held responsible.
 Although the requirements of each provision is
different, these three (3) articles are all related to
each other. As the eminent Civilist Senator Arturo
Tolentino puts it: “With this article (Article 21),
combined with articles 19 and 20, the scope of our
law on civil wrongs has been very greatly
broadened; it has become much more supple and
adaptable than the Anglo-American law on torts. It
is now difficult to conceive of any malevolent
exercise of a right which could not be checked by
the application of these articles.”
 There is however, no hard and fast rule which can
be applied to determine whether or not the principle
of abuse of rights may be invoked. The question of
whether or not the principle of abuse of rights has
been violated, resulting in damages under Articles
20 and 21 or other applicable provision of law,
depends on the circumstances of each case.
9
The Supreme Court offered the following explanation as to the
nature of what Judge Sanco calls “catch-all” provisions:
 This article (Art. 19), known to contain what is
commonly referred to as the principle of abuse of
rights, sets certain standards which must be
observed not only in the exercise of one’s rights but
also in the performance of one’s duties. These
standards are the following: to act with justice; to
give everyone his due; and to observe honesty and
good faith. The law, therefore, recognizes a
primordial limitation on all rights; that in their
exercise, the norms of human conduct set forth in
Article 19 must be observed. A right, though by
itself legal because recognized or granted by law as
such, may nevertheless become the source of some
illegality. When a light is exercised in a manner
which does not conform with the norms enshrined in
Article 19 and results in damage to another, a legal
wrong is thereby committed for which the
wrongdoer must be held responsible. But while
Article 19 lays down a rule of conduct for the
government of human relations and for the
maintenance of social order, it does not provide a
remedy for its violation. Generally, an action for
damages under either Article 20 or Article 21 would
be proper.
PNB vs. CA, G.R. No. L-27155, May 18, 1978,
 This article (Art. 21), adopted to remedy the
“countless gaps in the statutes, which leave so many
victims of moral wrongs helpless, even though they
have actually suffered material and moral injury”
 “Thus at one stroke, the legislator, if the foregoing
rule is approved, would vouchsafe adequate legal
remedy for that untold number of moral wrongs
which it is impossible for human foresight to
provide for specifically in the statutes.”
 It should be emphasized, however, that an action can
only prosper when damage, material or otherwise,
was suffered by the plaintiff. An action based on
Articles 19, 20 and 21 will be dismissed if the
plaintiff merely seeks “recognition.
Enrique J. L. Ruiz, et al. vs. The Secretary of National
Defense, G.R. No. L-15526, December 28, 1963
 a complaint will be dismissed if the plaintiffs filed
an action to be merely recognized as architects of a
building.
Grand Union Supermarket vs. Jose J. Espino, Jr., G.R. No. L-
48250, December 28, 1979
• Interestingly, the Supreme Court likewise ruled that
the defend- ant may likewise be guilty of tort under
Articles 19 and 21 even if he acted in good faith
• In those cases, liability to pay moral damages may
not be imposed on the defendant who acted in good
faith.
NEGLIGENCE OF SELECTED BUSINESS
ORGANIZATION
“Negligence is want of care required by the circumstances. It is
a relative or comparative, not an absolute term, and its
application depends upon the situation of the parties, and the
degree of care and vigilance which the circumstances
reasonably impose. Where the danger is great, a high degree of
care is necessary.” (Makati Shangri-la Hotel and Resort, Inc
vs. Ellen Johanne Harper, et. al., G.R. No. 189998, August 29,
2012)
Negligence in School Institutions and Administrations
 Art. 2180 of the Civil Code states:
“The obligation imposed by Art. 2176 is demandable not only
for one’s own acts or omissions, but also for those persons for
whom one is responsible. x xxLastly, teachers or heads of
establishments of arts and trades shall be liable for damages
caused by their pupils and students or apprentices, so long as
the remain in their custody. The responsibility treated of in this
article shall cease when the persons herein mentioned prove
that they observed all the diligence of a good father of a family
to prevent damage.”
 Art. 218 of the Family Code states:
“ The school, its administrators and teachers, or the individual,
entity or institution engaged in child care shall have special
parental authority and responsibility over the minor child while
under their supervision, instruction of custody.”
Professional Standard of Care is needed for those engaged in
Educational Institution. Failure to Apply the Professional
Standard of Care can result in school’s negligence.
St. Joseph College, Et. Al. vs. Jayson Miranda, GR. No.
182353, June 29, 2010
Facts:
In the afternoon inside St. Joseph Colleges (SJC) premises, the
class to which 12 year-old Jayson Miranda (Jayson) belonged
was conducting a science experiment about fusion of sulphur
powder and iron fillings under the tutelage of Rosalinda
Tabugo (Tabugo), a teacher and employee of SJC. Tabugo left
her class while it was doing the experiment without having
adequately secured it from any untoward incident or
occurrence. In the middle of the experiment, Jayson being the
assistant leader of one group in the class, checked the result of
the experiment by looking into the test tube with magnifying
glass. The compound in the test tube spurted out several
particles of which hit Jayson’s eye and the different parts of the
bodies of some of his group mates. The parents of Jayson filed
a complaint for damages.
Ruling of RTC: Judgment was rendered in favor of
Jayson and against SJC.
Ruling of CA: The Judgment of RTC was affirmed
in toto.
Issues:
1st: Whether or not Jayson contributory negligence of peeking
into the test tube was in fact the proximate cause of his injury
for which SJC should not be held liable?
2nd: Whether or not SJC is liable for damages?
10
Held for the 1st issue:
In this case, SJC failed to show that the negligence of Jayson
was the proximate cause of the latter’s injury. The immediate
cause of the accident was not the negligence of Jayson when he
curiously looked into the test tube when the chemicals
suddenly exploded which caused his injury, but the sudden and
unexpected explosion of the chemicals independent of any
intervening cause.
The proximate cause of Jayson’s injury was the concurrent
failure of petitioners to prevent the foreseeable mishap that
occurred during the conduct of the science experiment.
Art. 218 of the Family Code, in relation to Article 2180 of the
Civil Code, bestows special parental authority on the following
persons with the corresponding obligations.
SJC could have prevented the mishap if they exercised a higher
degree of care, caution and foresight required of them.
Held for the 2nd Issue:
SC ruled that SJC’s negligence and failure to exercise the
requisite degree of care and caution is demonstrated by the
following:
1. SJC did not take affirmative steps to avert damages
and injury to its students although it had full
information on the nature of dangerous science
experiments conducted by the students during class;
2. SJC did not install safety measures to protect the
students who conducted experiments in class;
3. SJC did not provide protective gears and devices,
specifically goggles, to shield students from
expected risks and dangers; and
4. The assigned teacher was not inside the classroom
the whole time her class conducted experiment,
specifically, when the accident involving Jayson
occurred.
This neglect in preventing a foreseeable injury and damage
equates to neglect in exercising the utmost degree of diligence
required of school, its administrators and teachers, and,
ultimately, was the proximate cause of the damage and injury
to Jayson.
Joseph Saludaga vs. Far Eastern University, et. al.
G.R. No. 179337, April 30, 2008
Facts:
Petitioner Joseph Saludaga was a sophomore law student of
respondent Far Eastern University (FEU) when he as shot by
Alejandro Rosete (Rosete), one of the security guards on duty
at the school premises.
Petitioner thereafter filed a complaint for damages against
respondents on the ground that they breached their obligation
to provide students with a safe and secure environment and an
atmosphere conducive to learning. Respondents, in turn, filed a
third-party complaint against Galaxy Dev’t. & Mgt. Corp.
(Galaxy), the agency contracted by respondent FEU to provide
security services within its premises to indemnify them for
whatever would be adjudged in favor of petitioner.
RTC: FEU and its president as ordered to pay jointly
and severally Saludaga damages. Galaxy and its
President was ordered to indemnify jointly and
severally FEU for such amount.
CA: Dismissed, ruling that: a) the incident was a
fortuitous event; b) the respondents are not liable for
damages of the injury suffered by the petitioner
from the hands of their own security guard in
violation of their built-in contractual obligation to
petitioner, being their law student at the time, to
provide him with a safe and secure educational
environment; c) that Rosete, who shot petitioner,
was not FEU’s employee by virtue of the contract
for security services between Galaxy and FEU,
notwithstanding the fact that petitioner, not being a
party to it, is not bound by the same under the
principle of relativity of contracts; and d) FEU
exercised due diligence in selecting Galaxy as the
agency which would provide security services
within the respondent FEU.
Issue no. 1: Whether or not there is a contractual
obligation between Saludaga and FEU.
Held: It is undisputed that petitioner was enrolled as
a sophomore law student in respondent FEU. As
such, there was created a contractual obligation
between the two parties. On petitioner’s part, he was
obliged to comply with the rules and regulations o
the school. On the other hand, respondent FEU, as a
learning institution is mandated to impart knowledge
and equip its students with the necessary skills to
pursue higher education or a profession. At the same
time, it is obliged to ensure and take adequate steps
to maintain peace and order within the campus.
Issue no. 2: Whether or not FEU is guilty of culpa
contractual?
Held: It is settled that in culpa contractual, the mere
proof of the existence of the contract and the failure
of its compliance justify, prima facie, a
corresponding right of relief. Here, petitioner was
shot inside the campus by no less the security guard
who was hired to maintain peace and secure the
premises, there is prima facie showing that
respondents failed to comply with its obligation to
provide a safe and secure environment to its
students. Also, respondents failed to prove that they
ensured tha the guards assigned in the campus met
the requirements stipulated in the Security Service
Agreement. No evidence as to the qualifications of
Rosete as security guard was presented.
Respondents also failed to show that they undertook
steps to ascertain and confirm that the security
guards assigned to them actually possess the
qualifications required in the Security Service
Agreement.
Issue no. 3: Whether or not the petitioner is entitled
to indemnification for damages.
Held: Petitioner is entitled to actual damages, moral
damages, temperate damages, attorney’s fees, and
litigation expenses. Art. 1170 of the Civil Code
provides that those who are negligent in the
performance of their obligations are liable for
11
damages. Accordingly, for breach of contract due to
negligence in providing a safe learning environment,
FEU is liable to petitioner for damages.
Issue no. 4: Whether or not the FEU President
himself is vicariously liable?
Held: FEU President cannot be held liable for
damages under Art. 2180 of the Civil Code because
respondents are not employers of Rosete. The latter
was employed by Galaxy. The instructions issued by
respondent’s Security Consultant to Galaxy and its
security guards are ordinarily no more than requests
commonly envisaged in the contract for services
entered into by a principal and a security agency.
Issue no. 5: Whether or not Galaxy and its President
were liable for damages?
Held: For the acts of negligence and for having
supplied respondent FEU with an unqualified
security guard, which resulted to the latter’s breach
of obligation to petitioner, it is proper to old Galaxy
liable to respondent FEU for such damages
equivalent to the above-mentioned amounts awarded
to petitioner. Also, unlike FEU president, SC
deemed Galaxy President to be solidarily liable
with Galaxy for being grossly negligent in directing
the affairs of the security agency. It was the Galaxy
President who assured petitioner that his medical
expenses will be shouldered by Galaxy, but said
representations were not fulfilled because they
presumed that petitioner and his family were no
longer interested in filing a formal complaint against
them.
Philippine School of Business Administration, et. al. vs. CA
G.R. no. 84698, February 4, 1992
Facts:
A stabbing incident which caused the death of Carlitos Bautista
while on the 2nd floor premises of the Philippine School of
Business Administration (PSBA) prompted the parents of the
deceased to file suit for damages against PSBA and its
corporate officers. At the time of his death, Carlitos was
enrolled in the third year commerce course at PSBA. It was
established that the assailants were not members of the
school’s academic community but were elements from outside
the school. PSBA filed a motion to dismiss stating that since
they are presumably sued under Article 2180 of the Civil Code,
the complaint sates no cause of action against them. The trial
court did not grant the motion to dismiss. Petitioner raised the
same to the appellate court, which affirmed the ruling of the
lower court.
Issue: Whether or not PSBA is exculpated from
liability?
Held: Art.2180, in conjunction with Art. 2176 of the
Civil Code, establishes the rule of in loco parentis. It
had been stressed that Art. 2180 plainly provides
that the damages should have been caused or
inflicted by pupils or students of the educational
institution sought to be held liable for the acts of its
pupils or students while in its custody. This material
situation does not exist in the present case as the
assailants were not students of the PSBA for whose
acts the school could be made liable. However, it
does not necessarily follow that petitioners are
exculpated from liability. When an academic
institution accepts students for enrollment, there is
established a contract between them, resulting in
bilateral obligations which both parties are bound to
comply with. For its part, the school undertakes to
provide the student with an education that would
presumably suffice to equip him with the necessary
tools and skills to pursue higher education or
profession.
On the other hand, the student covenants to abide by
the school’s academic requirements and observe its
rules and regulations. Institutions of learning must
also meet the implicit or “built-in” obligation of
providing their students with an atmosphere that
promotes or assists in attaining its primary
undertaking of imparting knowledge. Necessarily,
the school must ensure that adequate steps are taken
to maintain peace and order within the campus
premises and to prevent the breakdown thereof. A
perusal of Art. 2176 shows that obligations arising
from quasi-delicts or tort, also known as extra-
contractual obligations, arise only between parties
not otherwise bound by contract, whether express or
implied. However, this impression has not prevented
this Court from determining the existence of a tort
even when there obtains a contract. Article 21 of the
Civil Code provides: “Any person who wilfully
causes loss or injury to another in a manner that is
contrary to morals, good custom or public policy
shall compensate the latter for the damage.” It can
be concluded that should the act which breaches a
contract be done in bad faith and be violative of
Article 21, then there is a cause to view the act as
constituting a quasi-delict.
 In the case at bar, there is, as yet, no finding that the
contract between the school and Bautista had been
breached thru the former’s negligence in providing
proper security measures. Even if there be a finding
of negligence, the same could give rise generally to
a breach of contractual obligation only. In other
words, a contractual relation is a condition sine qua
non to the school’s liability. The negligence of the
school cannot exist independently of the contract,
unless the negligence occurs under the
circumstances set out in Article 21 of the Civil
Code. Should this be the case, the school may still
avoid liability by proving that the breach of its
contractual obligation to the students was not due to
its negligence, here statutorily defined to be the
omission of that degree of diligence which is
required by the nature of the obligation and
corresponding to the circumstances of persons, time
and place.
 SC denied the petition and ordered the court of
origin to continue proceedings consistent with this
ruling of the court.
NEGLIGENCE OF BANKS
 Diligence required of banks is more than that of a
Roman pater familiasor a good father of a family.
The highest degree of diligence is expected.
12
Philippine National Bank vs. Sps. Cheah Chee Chong, et. Al.
GR. No. 170865, April 25, 2012
 Facts:
Ofelia Cheah (Ofelia) and her friend Adelina Guarin (Adelina)
were having a conversation in the latters office when Adelinas
friend, Filipina Tuazon, approached her to ask is she could
have Filipinas check cleared and encashed for a service fee of
2.5 %. Because Adelina does not have a dollar account in
which to deposit the check, she asked Ofelia if she could
accommodate Filipinas request since she has joint dollar
savings account with her Malaysian husband Cheah Chee
Chong(Chong) with PNB Buendia Branch. Ofelia agreed, and
on the same day they went to PNB Buendia Branch and
deposited Filipinas check. PNB then sent it for clearing
through its correspondent bank, Philadelphia National Bank
(Philadelphia). Five days late, PNB received a credit advice
from Philadelphia that the proceeds of the subject check had
been temporarily credited to PNB account. Without waiting for
the 15 days clearing, PNB called up Ofelia to inform that her
check had already been cleared. The following day after Ofelia
got the information, withdraw the amount and the proceeds
were given to Filipina.
PNB received SWIFT messages from the correspondent bank
informing the return of the subject check for insufficient funds.
Ofelia was able to return some amounts which she was able to
recover from the beneficiaries but was not able to raise the
total amount of the check which is $300,000. PNB sent a
demand to Sps. Cheah for the return of the amount and froze
their peso and dollar deposits.
RTC ruled in PNB’s favor and held that Sps. Cheah were
guilty of contributory negligence, because Ofelia trusted a
friends friend whom she did not know and considering the
amount of the check made payabe to cash, and showed lack of
vigilance in her dealings.
CA recognized the Sps. Cheah as victims of a scam who
nevertheless have to suffer the consequences of Ofelias lack of
care and prudence in immediately trusting a stranger, the
appellate court did not hold PNB scot free as both parties were
equally negligent.
Issue: Whether or not PNB is liable?
 Held: PNB’s act of releasing the proceeds of the
check prior to the lapse of the 15-day clearing
period was the proximate cause of the loss.
Proximate cause is that cause, which, in natural and
continuous sequence, unbroken by any efficient
intervening cause, produces the injury and without
which the result would not have occurred. While
PNB highlights Ofelias fault in accommodating a
strangers check and depositing it to the bank, it
remains mum in its release of the proceeds thereof
without exhausting the 15-day clearing period, an
act which contravened established banking rules and
practice.
PNB’s disregard of its preventive and protective measure
against the possibility of being victimized by bad checks had
brought upon itself the injury of losing a significant amount of
money.
It bears stressing that the diligence required of banks is more
than that of a Roman pater familiasor a good father of a family.
The highest degree of diligence is expected. PNB miserably
failed to do its duty of exercising extraordinary diligence and
reasonable business prudence. The disregard of its own
banking policy amounts to gross negligence, which the law
defines as negligence characterized by the want of even slight
care, acting or omitting to act in a situation where there is duty
to act, not inadvertently but wilfully and intentionally with a
conscious indifference to consequences in so far as other
persons may be affected.
Philippine National Bank vs. FF. Cruz and Co. Inc.
G.R. No. 173259, July 25, 2011
 Facts: Respondent FF. Cruz & Co. Inc (FFCCI)
opened savings/current or so-called combo account
with petitioner Philippine Savings Bank (PNB) as its
Timog Ave. Branch. Its president Felipe Cruz
(Felipe) and Secretary Angelita A. Cruz (Angelita)
were named signatories for the said accounts. The
said signatories left for and returned from the United
State of America. While they were thus out of the
country, applications for cashiers and managers
checks bearing Felipe’s signature were presented to
and both approved by the PNB. The first was
payable to a certain Gene B. Sangalang and the
other one was payabe to one Paul Bautista. The
amounts of these checks were then debited by the
PNB against the combo account of FFCCI.
 When Angelita returned to the country, she had
occasioned to examine the PNB statements of
account of FFCCI and noticed that there were
deductions. Claiming that these were unauthorized
and fraudently made, FFCCI request PNB to credit
back and restore t its account the value of the
checks. PNB refused, nad thus FFCCI filed a suit for
damages against PNB and its own accountant Aurea
Caparas (Caparas).
 The trial court ruled the FFCCI was guilty of
negligence for waiving the two-signature
requirement in transactions involving the subject
combo account and was negligent in not
immediately informing PNB of the fraud. The PNB
was likewise negligent in not calling or personally
verifying from the authorized signatories the
legitimacy of the subject withdrawals considering
that they were in huge amounts, PNB has the last
clear chance to prevent the unauthorized debits from
FFCCI’s combo account. The lower court declared
that PNB should bear the whole loss.
 The CA affirmed the decision with modification that
PNB shall pay only 60% of the actual damages
awarded by the trial court while the remaining 40%
shall be borne by FFCCI.
Issue: Whether or not PNB is guilty of negligence?
Held: PNB is guilty of negligence.
PNB failed to make the proper verification because the
applications for the managers check do not bear the signature
of the bank verifier. PNB did not present the account analyst to
explain his or her failure to sign the box for signature and
balance verification of the subject applications for managers
check, thus casting doubt as to whether he or she did indeed
verify the signatures thereon.
13
The SC find no reversible error in the finding of the appellate
court that PNB was negligent in the handling of FFCCI’s
combo account, specifically, with respect to PNB’s failure to
detect the forgeries in the subject applications for managers
check which could have prevented the loss. As often ruled, the
banking business is impressed with public trust. A higher
degree of diligence is imposed on banks relative to the
handling of their affairs than that of an ordinary business
enterprise. Thus, the degree of responsibility, care and
trustworthiness expected of their officials and employees is far
greater than those of ordinary officers and employees in other
enterprise. In the case at bar, PNB failed to met the high
standard of diligence required by the circumstances to prevent
the fraud.
The SC denied the petition and affirmed the decision of the
CA.
Solidbank Corporation vs. Sps. Teodulfo& Carmen Arrieta
G.R. No. 152720, February 17, 2005
 Facts: Carmen Arrieta (Carmen) is a bank depositor
of Solidbank Corporation. ON March 1990, Carmen
issued a check in the amount of PhP330.00 in the
name of Lopues Dept. Store in payment for her
purchases from said store. When the check was
deposited by the store to its account, the same was
dishonored due to Account Closed despite the fact
that at the time the check was presented for
payment, Carmen’s checking account was still
active and backed up by a deposit of PhP 1,275.20.
As consequence of the checks dishonor, Lopues
Dept. Store sent a demand letter to Carmen
threatening her with criminal prosecution unless she
redeemed the check within 5 days. To avoid
criminal prosecution, Carmen paid PhP330.00 in
cash to the store, plus a surcharge of PhP33.00 for
the bouncing check or a total of PhP 363.00.
 The bank in its answer, claimed that Carmen failed
to maintain the required balance of at least
PhP1,000.00 on any day of the month, an did not
handle her account in a manner satisfactory to the
bank. Her violations of the general terms and
 conditions governing the establishment and
operation of a current account, Carmen’s account
was recommended for closure. In any event, the
bank claimed good faith in declaring her account
closed since one of the clerks, who substituted for
the regular clerk, committed an honest mistake when
he thought that the subject account was already
closed when the ledger containing the said account
could not be found.
 The trial court rendered its decision that Solidbank
Corporation was grossly negligent in failing to
check whether or not Carmen’s account was still
open and viable at the time the transaction was
made.
The CA affirmed the decision of the lower court.
Issue: Whether or not Solidbank Corporation is
liable for damages?
Held: It is undisputed that the subject check was
adequately funded, but that petitioner wrongfully
dishonored it. Respondent Carmen was able to prove
that petitioners wrongful dishonor of her check was
the proximate cause of her embarrassment and
humiliation in her workplace, in her own home, and
in the church where she served as deaconess. The
CA was in agreement with the trial court in ruling
that her injury arose from the gross negligence of
petitioner in dishonoring her well-funded check.
Treating Carmen’s account as closed, merely
because the ledger could not be found was a reckless
act that could not simply be brushed off as an honest
mistake. We have repeatedly emphasized that the
banking industry is impressed with public interest.
Consequently, the highest degree of diligence is
expected, and high standards of integrity and
performance are even required of it. By the nature of
its functions, a bank is under obligation to treat the
accounts of its depositors with meticulous care and
always to have in mind the fiduciary nature of its
relationship with them. Article 21 of the Civil Code
states that any person who wilfullycauses loss or
injury to another in a manner that is contrary to
morals, good customs or public policy shall
compensate the latter for the damage. Further,
Article 2219 provides for the recovery or moral
damages for acts referred to in the aforementioned
Article 21.
FIREARM RELATED NEGLIGENCE
 Art. 2176 of the Civil Code states:
“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 parties, is called quasi-delict and
is governed by the provisions of this Chapter”
 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 substance.
Alfredo P. Pacis, et. Al. vs. Jerome Jovanne Morales
G.R.no. 169467, February 25, 2010
 Facts:
Petitioner 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 I Manila. The gun which killed Alfred is a
gun owned by a store customer which was left with the
caretakers. It appears that the caretakers took the gun from the
drawer and placed it on top of a able. 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
14
because of the exempting circumstance of “accident” under
Art. 12 par. 4 of the Revised Penal Code. 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
plaintiff indemnity for the death of Alfred, actual damages for
the hospitalization and burial, expenses incurred by the
plaintiffs, compensatory damages, and some other damages.
Respondent appealed to the CA, which reversed the trail courts
Decision and absolved respondent from civil liability under
Art. 2180 of the Civil Code.
 Issue: Whether or not Morales was negligent?
 Held: Morales was negligent.
Unlike the subsidiary liability of the employer under Art.103
of the Revised Penal Code, the liability of the employer, or any
person for that matter, under Art. 2176 of the Civil Code is
primary and direct, based on a person’s own negligence.
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 cancelled.
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 substance. 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 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 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 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. 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.
NEGLIGENCE OF RESORT & SWIMMING POOL
OPERATOR
 The “reasonable care” that it must exercise for the
safety and comfort of its guests should be
commensurate with the grade and quality of the
accommodation it offers.
 “The rule is well settled that the owners of resorts to
which people generally are expressly of by
implication invited are legally bound to exercise
ordinary care and prudence in the management and
maintenance of such resorts, to the end of making
them reasonably safe for visitors.” (Larkin vs.
Saltair Beach Co., 30 Utah 86, 83 Pac. 686)
 “Although the proprietor of a notatorium is liable for
injuries to a patron, resulting from lack of ordinary
care in providing for his safety, without the fault of
the patron, he is not, however, in any sense deemed
to be the insurer of the safety of patrons. And the
death of a patron within his premises does not cast
upon him the burden of excusing himself from any
presumption of negligence.” (Bertalot vs. Kinnare.
72 iii. App. 52, 22 A.L.R. 635; Flora vs. Bimini
Water Co., 161 Cal. 495, 119 Pac. 661)
Makati Shangri-la Hotel and Resort, Inc. Vs. Ellen Johanne
Harper, et. al.
G.R. No.189998, August 29, 2012
 Facts: In the 1st week of November 1999, Christian
Harper (Harper) came to Manila on a business trip
as Business Dev’t. Mgr. for Asia of ALSTOM
Power Norway AS, an engineering firm with
worldwide operations. He checked in at Shangri-La
Hotel and was billeted at Room 1428. He was due to
check out on November 6, 1999. In the early
morning of that date, however, he was murdered
inside his hotel room by still unidentified
malefactors.
 Issue : Whether or not petitioner was liable due to its
own negligence?
 Held: As the action is predicated on negligence, the
relevant law is At. 2176 of the Civil Code, which
states that – “Whoever by act or omission causes
damage to another, there being fault or negligence,
is obliged to pay for the damage done. Such fault of
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.”
Negligence is defined as 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. The Supreme Court likewise ruled
that negligence is want of care required by the
circumstances. It is relative or comparative, not an
absolute, term and its application depends upon the
situation of the parties and the degree of care and
vigilance which the circumstances reasonably
require.
 The test of negligence is objective. We measure the
act or omission of the tortfeasor with a perspective
as that of an ordinary reasonable person who is
similarly situated. Of the witnesses presented, only
one with competence to testify on the issue of
adequacy of inadequacy of security is Co. Rodrigo
De Guzman (Rodrigo) who was then the Chief
Security Officer of the hotel for the year 1999. He
testified that upon taking over the job as the chief of
the security force of the hotel, he made an
assessment of the security situation. Rodrigo was
15
not satisfied with the security set-up and told the
hotel management of his desire to improve it. He
noticed that there were few guards in the elevated
portion of the hotel where the rooms were located.
Rodrigo also testified that the reason why the hotel
management disapproved his recommendation was
that the hotel was not doing so well. It is for this
reason that the hotel management did not heed the
recommendation of Rodrigo, no matter how sound
the recommendation was, and whether the hotel is
fully-booked or not. It was a business judgment call
on the part of the hotel.
 The hotel’s inaction constitutes negligence or want
of the reasonable care demanded of it in that
particular situation. In applying the premises
liability rule in the instant case as it is applied in
some jurisdiction in the United States, it is enough
that guests are injured while inside the hotel
premises to make the hotelkeeper liable. With great
caution should liability of the hotelkeeper be
enforced when a guest died inside the hotel
premises. It also bears stressing that there were prior
incidents that occurred in the hotel which should
have forewarned the hotel management of the
security lapses of the hotel. As testified by Rodrigo,
“there were ‘minor’ incidents” (loos of items) before
the happening of the instant case. These “minor”
incidents may be of little significance to the hotel,
yet relative to the instant case, it speaks volume.
This should have served as a caveat that the hotel
security has lapses. Makati Shangri-La Hotel, to
stress, is a five-star hotel. The “reasonable care” that
it must exercise for the safety and comfort of its
guests should be commensurate with the grade and
quality of the accommodation it offers. If there is
such thing as “five-star hotel security”, the guest of
Makati Shangri-La surely deserves just that.
 When one register (as) a guest of a hotel, he makes
the establishment the guardian of his life and his
personal belongings during his stay. It is a standard
procedure of the management of the hotel to screen
visitors who call on their guests at their rooms. The
murder of Harper could have been avoided had the
security guards of Shangri-La Hotel in Makati
 dutifully observed this standard procedure. In so
concluding, we are reminded of the Supreme
Court’s enunciation that the hotel business like the
common carrier’s business is imbued with public
interest. Catering to the public, hotelkeepers are
bound to provide not only lodging for their guests
but also security to the persons and belongings of
their guests. The twin duty constitutes the essence of
the business. Applying by analogy Art. 2000, Art.
2001 and Art. 2002 of the Civil Code (all of which
concerned the hotelkeeper’s degree of care and
responsibility as to the personal effects of their
guests), we hold that there is much greater reason to
apply the same if not greater degree of care and
responsibility when the lives and personal safety of
their guests are involved. Otherwise, the
hotelkeepers would simply stand idly by as strangers
have unrestricted access to all the hotel rooms on the
pretense of being visitors of the guests, without
being held liable should anything untoward befall
the unwary guests. That would be absurd, something
that no good law would ever envision.
Mr. And Mrs. Amador C. Ong vs. Metropolitan Water District,
G.R. No. L-7664, August 29, 1958
 Facts: Plantiff spouses are the parents of Dominador
Ong (Dominador), a 14 year old high school student
and boy scout, who drowned in one of the
swimming pool that defendant Metropolitan Water
District operates. In the afternoon of July 5, 1952,
Dominador Ong, and his brother Ruben and
Eusebio, went to defendant’s swimming pools. This
was not the first time that the three brothers had
gone to said notatorium. After paying the requisite
admission fee, they immediately went to one of the
small pools where the water was shallow. Later that
afternoon, Dominador told his brothers that he was
going to the locker room in an building to drink a
bottle of coke. Upon hearing this, Ruben and
Eusebio went to the bigger pool leaving Dominador
in the small pool and so they did not see the latter
when he left the pool to get a bottle of coke. In that
afternoon, there were two lifeguards on alternate
tour of duty in the pool compound, namely, Manuel
Abano (Manuel) and Mario Villanueva (Mario).
Between 4pm-5pm that afternoon, there were about
20 bathers inside the pool area and Manuel was
going around the pools to observe the bathers
incompliance with the instructions of his chief.
 Between 4:40 to 4:45 pm, some boys who were in
the pool area informed a bather, that somebody was
swimming under water for quite a long time.
Another boy informed lifeguard Manuel of the same
happening and Manuel immediately jumped into the
big swimming pool and retrieved the apparently
lifeless body of Dominador from the bottom. The
body was placed at the edge of the pool and Manuel
immediately applied manual artificial respiration.
Soon after, male nurse Armando Rule came to
render assistance, followed by sanitary inspector
Iluminado Vicente who after called by phone from
the clinic by one of the security guards, boarded a
jeep carrying with him the resuscitator and a
medicine kit, and upon arriving he injected the boy
with camphorated oil. After injection, Vicente left to
fetch Dr. Ayuyao while Manuel continued the
artificial manual respiration, and when he failed to
revive him, they applied resuscitator until the two
oxygen tanks were exhausted. Dr. Ayuyao arrived
with another resuscitator, however the same became
of no use because he found the boy already dead.
 Issue: Whether or not the death of Dominador can
be attributed to the negligence of defendant and/or
its employees so as to entitle plaintiffs to recover
damages?
 Held: The present action is governed by Art. 2176 in
relation to Art. 2080 of the new Civil Code. The first
article provides that “whoever by act or omission
causes another, there being fault or negligence, is
obliged to pay for the damages done.” Such fault or
negligence is called quasi-delict. Under the second
article, this obligation is demandable not only for
one’s own acts or omissions but also for those
persons of whom one is responsible. Since the
present action is one for damages founded on
culpable negligence, the principle to be observed is
16
that the person claiming damages has the burden of
proving that the damage is caused by the fault or
negligence of the person from whom the damage is
claimed, or of one of his employees.
 As found by the trial courts, the appellants failed to
prove the negligence of the appellee and/or their
employees, and made a conclusion: “The testimony
of Ruben Ong and Andres Hagad, Jr. as to the
alleged failure of the lifeguard Abano to
immediately respond to their call may therefore be
disregarded because they a belied by their written
statements.”
 On, the other hand, there is sufficient evidence to
show that appellee has taken all necessary
precautions to avoid danger to the loves of its
patrons or prevent accident which may cause their
death. Thus, it has been shown that the swimming
pools or appellee are provided with a ring bouy, toy
roof, towing line, oxygen resuscitator and a first aid
medicine kit. The bottom of the pools is painted
with black colors so as to insure clear visibility.
There is on display in a conspicuous place within
the area certain rules and regulations governing the
use of the pools. Appellee employs six lifeguards
who are all trained as they had taken course for that
purpose and were issued certificates of proficiency.
These lifeguards work on schedule prepared by their
chief and arranged in such a way as to have two
guards at a time on duty to look after the safety of
the bathers. There is a male nurse and a sanitary
inspector with a clinic provided with oxygen
resuscitator. And there are security guards who are
available always in case of emergency.
 Sensing that their former theory as regards the
liability of appellee may not be of much help,
appellants now switch to the theory that even if it be
assumed that the deceased is partly to be blamed for
the unfortunate incident, still appellee may be liable
under the doctrine of “last clear chance” for the
reason that, having the last opportunity to save the
victim, it failed to do so. The doctrine of last clear
chance simply means that the negligence of a
claimant does not preclude a recovery for the
 negligence of defendant where it appears that the
latter, by exercising reasonable care and prudence,
might have avoided injurious consequences to
claimant notwithstanding his negligence. Or, “As
the doctrine usually is stated, a person who has the
last clear chance or opportunity of avoiding an
accident, notwithstanding the negligent acts of his
opponent or the negligence of a third person which
is imputed to his opponent, is considered in law
solely responsible for the consequences of the
accident.”
 Since it is not known how minor Ong came into the
big swimming pool and it being apparent that he
went there without any companion in violation of
one of the regulations of appellee as regards the use
of the pools, and it appearing that lifeguard Albano
responded to the call for help as soon as his attention
was called to it and immediately after retrieving the
body all efforts at the disposal of appellee had been
put into play in order to bring him back to life, it is
clear that there is no room for the application of the
doctrine now invoked by appellants to impute
liability to appellee.
 The last clear chance doctrine can never apply
where the party charged is required to act
instantaneously, and if the injury cannot be avoided
by the application of all means at hand after the peril
is or should have been discovered; at least in cases
in which any previous negligence of the party
charged cannot be said to have contributed to the
injury.
Negligence of Building Contractors
 “Fault or negligence of the obligor consists in his
failure to exercise due care and prudence in the
performance of the obligation as the nature of the
obligation so demands, taking into account the
particulars of each case.”
Emerita M. De Guzman vs. Antonio M. Tumolva
G.R. No. 188072, October 19, 2011
 Facts: On September 6, 2004, petitioner Emerita M.
De Guzman (De Guzman), represented by her Atty.-
in-fact, Lourdes Rivera and Dhonna Chan, and
respondent Antonio Tumolva, doing business under
the name and style A.M. Tumolva Engineering
Works (the Contractor), entered into a Construction
Agreement (Agreement) for the construction of an
orphanage consisting of an administration building,
directors/guests house, dining and service building,
childrens dormitory, male staff house, and covered
walkways in Brgy. PulongBunga, Purok 4, Silang,
Cavite, for a contract price of P15,982,150.39.
Incorporated in the Agreement was the plan and
specifications of the perimeter fence. The
Contractor, however, made deviations from the
agreed plan with respect to the perimeter fence of
the orphanage.
 On September 6, 2005m after the completion of the
project, De Guzman issued a Certificate of
Acceptance. For his part, the Contractor issued a
quitclaim acknowledging the termination of the
contract and the full compliance therewith by De
Guzman.
 In November 2006, during typhoon Milenyo, a
portion of the perimeter fence collapsed and other
portions tilted. De Guzman demand for the
restoration of the wall without additional cost on her
part, or in the alternative, for the Contractor to make
an offer of a certain amount by way of
compensation for the damages she sustained. Her
demand was not heeded.
 On February 14, 2008, De Guzman filed a Request
for Arbitration of the dispute before the
Construction Industry Arbitration Commission
(CIAC). She allege that the Contractor deliberately
defrauded her in the construction of the perimeter
fence by under sizing the required column rebars,
the required hollow blocks, and the distance
between columns. Further the Contractor neither
anchored the lenten beams to the columns not placed
drains or weepholes along the lower walls.
17
 The Contractor denied liability for the damaged
fence claiming, among others, that its destruction
was an act of God. He admitted making deviations
from the plan, but pointed out that the same were
made with the knowledge and consent of De
Guzman through her representatives, who were
present during the construction.
 The CIAC rendered in favor of De Guzman.
 The CA affirmed but with modifications.
 Issue: Is the Contractor liable for damages?
 Held: There is no doubt that De Guzman incurred
damages as a result of the collapse of the perimeter
fence. The Contractor is clearly guilty of negligence
and, therefore, liable for the damages caused as
correctly found by the CA. Nonetheless, the Court
sustains the CIACs conclusion that the Contractor
was negligent in failing to place weepholes on the
collapsed portion of the perimeter fence. Fault or
negligence of the obligor consists in his failure to
exercise due care and prudence in the performance
of the obligation as the nature of the obligation so
demands, taking into account the particulars of each
case. It should be emphasized that even if not
provided for in the plan, the Contractor himself
admitted the necessity of putting weepholes and
claimed to have actually placed them in view of the
higher ground elevation of the adjacent lot vis—vis
the level ground of construction site. Since he was
the one who levelled the ground and was, thus,
aware that the lowest portion of the adjoining land
was nearest the perimeter fence, he should have
ensured that sufficient weepholes were placed
because water would naturally flow towards the
fence.
 However, the Contractor failed to refute Mr. Ramos
claim that the collapsed portion of the perimeter
fence lacked weepholes. Records also show that the
omission of such weepholes and/or their being
plastered over resulted from his failure to exercise
degree of supervision over the work, which is the
same reason he was unable to discover the
 deviations from the plan until the fence collapsed.
Hence, the Contractor cannot be relieved from
liability therefor.
Acts contra bonus mores/ Acts Contrary Good Morals
Concept and Coverage
• 1.) There is an act which is legal.
• 2.) The act is contrary to morals, good custom,
public order, or public policy; and
• 3.) The act is done with intent to injure. [Albenson
Enterprises case]
• It is usually Res Ipsa Loquitur attended with fraud,
oppression, deceit, abuse of power or confidence.
[Aquino, Torts (2016) p.381]
• Determined on a case-to-case basis. i.e. no act is
inherently contra bonus mores
• Relevant provisions in the Civil Code are: Art. 19,
21, 26, 27, 28, 29, 30, 32, 34, 35, 2217, 2218, 2219,
2220, inter alia
• Relevant Special laws: Anti-Sexual Harassment Act
0f 1995, Data Privacy Act of 2012, Cybercrime
Prevention Act of 2012, Safe Streets and Public
Spaces Act of 2017
Philippine Jurisprudential Experience
• Breach of Promise to Marry
• Seduction and Sexual Assault
• Desertion by a Spouse
• Trespass and Deprivation of Property
• Abortion and Wrongful Death
• Illegal Dismissal
• Malicious Prosecution • A willful infliction to injure feelings [Pastor
Tenchaves v. Vicenta F. Escaño]
• Abuse of Processes
• C.f. with Art. 68 of The Family Code: “The husband
• Public Humiliation and wife are obliged to live together,…”
• Exception: Art. 69, par.2 of The Family Code.
BREACH OF PROMISE TO MARRY
• Generally not actionable. TRESPASS AND DEPRIVATION OF PROPERTY
• Liability arises from other circumstances such as • Trespass of Real Property
• 1.) Financial Damage • Art. 451 of the NCC (Possessor in bad faith with no
title whatsoever)
• 2.) Social Humiliation
• Art. 448 & 456 of the NCC (Builder in Good Faith
• 3.) Moral Seduction provisions)
• Defenses: If there was mutual desire and • C.f. Good Faith is not a defense in Common Law
voluntariness or In Pari Delicto Jurisdictions
• Constantino v. Mendez • Accession Continua - not liable but responsible
• GashemShokatBaksh v. Hon. Court of Appeals, et • Trespass to Personal Property
al.
• Cogeo-Cubao Operators and Drivers Association v.
• CecilioPe v. Alfonso Pe Court of Appeals– Right to air grievances should not
disturb public order and infringe on another’s rights.
• Manila Electric Company, et al. v. Court of Appeals
SEDUCTION AND SEXUAL ASSAULT - deprivation of utilities without prior notice is
tortious conduct.
• Liability attaches if attended by deceit, enticement,
superior power, or abuse of confidence. ABORTION AND WRONGFUL DEATH
• Gender is immaterial. • Geluz v. CA
• Overlaps with criminal acts. i.e. Rape, etc. • Art. 258 & Art. 259 of the Revised Penal Code
• C.f. Anti-Sexual Harassment Act of 1995. ILLEGAL DISMISSAL
DESERTION BY SPOUSE • “If the dismissal is done anti-socially or
oppressively …”
• “Refusal to perform wifely duties, denial of
Quisaba v. Sta. Ines-Melale Veneer and Plywood,
consortium, and desertion of her husband…”
Inc.
18
 • Art. 1701 of the NCC.
• If the ground for dismissal was fictional [AHSI 1
Phil. Employee’s Union v. NLRC]
• Constructive Dismissal is an act contra bonus mores.
MALICIOUS PROSECUTION
• Albenson Enterprises Corp v. Court of Appeals
• 1.) The prosecution ended with Acquittal
• 2) the prosecutor acted without Probable Cause
• 3)the prosecutor was actuated or impelled by legal
Malice
• Malice – “… initiated deliberately, knowing that the
charges are false and groundless.” [Mamitua Saber
v. Court of Appeals]
• “Acquittal requires termination of the action
…”[Drilon v. Court of Appeals]
• Prior acquittal or dismissal is within contemplation
of ‘acquittal.’
• Control of Prosecutor immaterial
• Criminal and Civil actions are the same. Ubilex non
distinguit, necnosdistinguirredebemus
• Damnum Absque Injuria Injury arising from the
exercise of a right is non-compensable
ABUSE OF PROCESS
• Gregorio v. Court of Appeals, et al.
• A claim for Moral Damages does not ipso facto
mean the action for damages is based on an
intentional tort.
• Intentional Tort and Quasi-Delict cannot be both
alleged and claimed in the same case.
PUBLIC HUMILIATION
• Slander by Deed Art. 359 of the Revised Penal
Code.
• Grand Union Supermarket, Inc. v. Jose J. Espino
• Detained and subjected to verbal abuse in public
• California Clothing Inc. v. Quiñones
• Maliciously accused through demand letter
• Hotel Nikko Manila Garden v. Reyes
• Told to leave in front of the guests at the party.
Principle of Abuse of Rights
Rule: A person is not liable for damages resulting
from the exercise of one's right –qui
iuresuoutiturneminemlaedit.
Thus, a person will be protected only when he acts
in the legitimate exercise of his right, that is, when he acts with
prudence and in good faith, not when he acts with negligence
or abuse.
The principle of abuse of rights is found under Articles 19, 20
and 21 of the Civil Code of the Philippines, which states that:
Art. 19. “Every person must, in the exercise of his rights and in
the performance of his duties, act with justice, give everyone
his due and observe honesty and good faith.”
Art. 20. “Every person who, contrary to law, willfully or
negligently causes damage to another, shall indemnify the
latter for the same.”
Art. 21. “Any person who willfully causes loss or injury to
another in manner that is contrary to morals, good customs or
public policy shall compensate the latter for the damage.”
Articles 19, 20 & 21 of the Civil Code
The above articles, depart from the classical theory
that “he who uses a right injures no one”.
19
The modern tendency is to depart from the classical
and traditional theory, and to grant indemnity for damages in
cases where there is an abuse of rights, even when the act is
not illicit.
To find the existence of abuse of right under the said article,
the following elements must be present:
(1) there is a legal right or duty;
(2) which is exercised in bad faith;
(3) for the sole intent of prejudicing or injuring another.
Malice or bad faith is at the core of Article 19 of the Civil
Code. Malice is bad faith or bad motive.
Bad faith - does not simply connote bad judgment or simple
negligence; it involves a dishonest purpose or some moral
obloquy and conscious doing of a wrong, a breach of known
duty due to some motives or interest or ill will that partakes of
the nature of fraud.
Malice - connotes ill will or spite and speaks not in response
to duty. It implies an intention to do ulterior and unjustifiable
harm.
What is good faith?
Good faith - refers to the state of mind which is manifested by
the acts of the individual concerned. It consists of the intention
to abstain from taking an unconscionable and unscrupulous
advantage of another.
Good faith is presumed. Thus, he who alleges bad faith has the
duty to prove the same.
Examples of Cases When There is Abuse of Right:
(a) Abuse of right of Creditors.
(b) Abuse of right of Principal.
(c) Abuse of right of Agents.
 (d) Abuse of right of Public Office. • Fraud • Section 6 of the Anti-Sexual Harassment Act of
1995 [R.A. 7877]: Independent Action for Damages.
(e) Abuse of right of Processes. • Physical Injuries and -Nothing in this Act shall preclude the victim of
work, education or training-related sexual
(f) Abuse of right by Contracting Party. • Neglect of Public harassment from instituting a separate and
Officers independent action for damages and other
(g) Abuse of right of Schools. affirmative relief.
• Laws in connection with filing independent civil
Examples of Cases When There is No Abuse of Right: actions are: CONCEPT OF INDEPENDENT CIVIL ACTION

• Articles 32, 33, 34 of the Chapter on
Human Relations of the New Civil Code
(a) Absolute Rights
• Article 135 of the Labor Code. Discrimination
(b) Rights of the Corporation and its Officers and Prohibited. — It shall be unlawful for any employer
Directors to discriminate against any woman employee with
respect to terms and conditions of employment
(c) Exercise of Rights Included in Ownership solely on account of her sex.
(d) Rights of Schools, Teachers and Administrator.
"The following are acts of discrimination:
(e) Right to Sue
(a) Payment of a lesser compensation, including
(f) Contracting Parties
wage, salary or other form of remuneration and fringe benefits,
to a female employee as against a male employee, for work of
equal value; and
INDEPENDENT CIVIL ACTION
(b) Favoring a male employee over a female
Part I. Concept of Independent Civil Action and Article 32 of
employee with respect to promotion, training opportunities,
NCC
study and scholarship grants solely on account of their sexes.
Part II. Article 33 of NCC: DEFAMATION
Part III. FRAUD AND PHYSICAL INJURIES and Article 34 "Criminal liability for the willful commission of any
of NCC unlawful act as provided in this article or any violation of the
rules and regulations issued pursuant to Section 2 hereof shall
• It includes actions for damages for:
be penalized as provided in Articles 288 and 289 of this Code:
Provided, That the institution of any criminal action under this
• Violation of Civil
provision shall not bar the aggrieved employee from filing an
Rights
entirely separate and distinct action for money claims, which
may include claims for damages and other affirmative reliefs.
• Violation of Political
Rights The actions hereby authorized shall proceed independently of
each other."
• Defamation
20
• “The underlying purpose of the principle under
consideration is to ALLOW THE CITIZEN TO
ENFORCE HIS RIGHTS IN A PRIVATE ACTION
brought by him, regardless of the action of the State
attorney. It is not conducive to civic spirit and to
individual self-reliance and initiative to habituate the
citizens to depend upon the government for the
vindication of their own private rights. It is true that
many of the cases referred to in the provision cited,
a criminal prosecution is proper, BUT it should be
remembered that while the State is the complainant
in the criminal case, the injured individual is the one
most concerned because it is he who has suffered
directly. He should be permitted to demand
reparation for the wrong which peculiarly affects
him.” (Report, p.46)
• 2 VIEWS ON THE BASIS OF LIABILITY
UNDER ARTICLE 32, 33, AND 34 OF THE NEW
CIVIL CODE1ST VIEW [Madeja vs Caro, 126
SCRA 293, 296 (1983): SENATOR TOLENTINO
said that = “that the civil action which the Civil
Code provisions allow to be filed (particularly
Article 33), is EX DELICTO, that is, CIVIL
LIABILITY ARISING FROM DELICT.”
• the GENERAL RULE is that when a
criminal action is instituted, the civil
action for recovery of civil liability
arising from the offense charged is
impliedly instituted with the criminal
action, UNLESS the offended party
reserves his right to institute it separately;
and after a criminal action has been
commenced, no civil action arising from
the same offense can be prosecuted.
 • 2ND VIEW [Barredo vs. Almario, 73 Phil 607]:
JUSTICE CAGUIOA said that = “that it did not
arise from a crime, the basis is said to be tortious
actions more of the nature of CULPA AQUILIANA
and, therefore, separate and distinct from the civil
liability arising from crime.”
ARTICLE 32 OF THE NEW CIVIL CODE
INDEPENDENT CIVIL ACTION FOR
DAMAGES FOR VIOLATION OF CIVIL AND
POLITICAL RIGHTS
Art. 32. Any public officer or employee, or any
private individual, who directly or indirectly
obstructs, defeats, violates or in any manner
impedes or impairs any of the following rights and
liberties of another person shall be liable to the latter
for damages:
1. Freedom of religion;
2. Freedom of speech;
3. Freedom to write for the press or to maintain a
periodical publication;
4. Freedom from arbitrary or illegal detention;
5. Freedom of suffrage;
6. The right against deprivation of property without
due process of law;
7. The right to a just compensation when private
property is taken for public use;
8. The right to the equal protection of the laws;
9. The right to be secure in one’s person, house,
papers, and effects against unreasonable searches
and seizures;
10. The liberty of abode and of changing the same;
11. The privacy of communication and
correspondence;
12. The right to become a member of associations or
societies for purposes not contrary to law;
13. The right to take part in a peaceable assembly to
petition the Government for redress of grievances;
14. The right to be free from involuntary servitude
in any form;
15. The right of the accused against excessive bail;
16. The right of the accused to be heard by himself
and counsel, to be informed of the nature and cause of the
accusation against him, to have a speedy and public trial, to
meet the witnesses face to face, and to have compulsory
process to secure the attendance of witness in his behalf;
17. Freedom from being compelled to be a witness
against one’s self, or from being forced to confess guilt, or
from being induced by a promise of immunity or reward to
make such confession, except when the person confessing
become a State witness;
18. Freedom from excessive fines, or cruel and
unusual punishment, unless the same is imposed or inflicted in
accordance with a statute which has not been judicially
declared unconstitutional; and
19. Freedom of access to the courts.
In any of the cases referred to in this article, whether or not the
defendant’s act or omission constitutes a criminal offense, the
aggrieved party has a right to commence an entirely separate
and distinct civil action for damages, and for other relief. Such
civil action shall proceed independently of any criminal
prosecution (if the latter be instituted), and may be proved by a
preponderance of evidence.
The indemnity shall include moral damages. Exemplary
damages may also be adjudicated.
The responsibility herein set forth is not demandable from a
judge unless his act or omission constitutes a violation of the
Penal Code or other penal statute.
21
Because the Fiscal is burdened with too many cases because he
believed the evidence was insufficient, or as to a few fiscals,
on account of a disinclination to prosecute a fellow public
official, especially when he is of high rank, no criminal action
was filed by the prosecuting attorney.
The requirement of proof beyond reasonable doubt often
prevented the appropriate punishment.
Direct and open violation of the Penal Code trampling upon
the freedom named are not so frequent as those subtle, clever
and indirect ways which do not come within the pale of penal
laws.
To promote individualism among citizens.
• HOW COMMITTED:
• Normally involves intentional acts, the
tort of violation of civil and political
rights can also be committed through
negligence. Thus, good faith on the part
of the defendant does not necessarily
excuse such violation.
• PERSONS LIABLE:
• He has direct and indirect participation.
• Superior Officers.
• Subordinate Officers.
• Judges.
STATE IMMUNITY NOT A DEFENSE’
• A public officer who is the defendant in a case for
damages under Article 32 of the NCC cannot escape
liability under the DOCTRINE OF STATE
IMMUNITY.
• The doctrine of state immunity applies only if the
acts involved are acts done by officers in the
performance of official duties within the ambit of
their powers. Obviously, officers do not act within
 the ambit of their powers if they would violate the
constitutional rights of other persons.
SUSPENSION OF THE PRIVILEGE OF THE WRIT OF
HABEAS CORPUS
• In a case decided under the 1973 Constitution, the
SC ruled that the suspension of the privilege of
habeas corpus DOES NOT DESTROY EVERY
PERSON’S RIGHT AND CAUSE of action for
damages under violations of constitutional right.
WHAT IS SUSPENDED IS MERELY THE RIGHT
OF THE INDIVIDUAL TO SEEK RELEASE
FROM HIS DETENTION THROUGH THE WRIT
OF HABEAS CORPUS as a speedy means of
obtaining his liberty. Consequently, the suspension
of the writ CANNOT BE USED AS A DEFENSE in
cases involving Article 32 of NCC.
• The rule is further strengthened under the 1987
Constitution. In fact, under the 1987 Constitution,
even if martial law is already in force, the civil
liberties of every person still has to be respected and
the courts of justice still remain open.
• EXAMPLES OF VIOLATIONS
• DUE PROCESS AND
FREEDOM OF
EXPRESSION.
• RIGHT AGAINST
SEARCHES AND SEIZURES
MERALCO VS. SPOUSES CHUA,
G.R. No. 160422, July 5, 2010
• Facts: MERALCO is a utility company engaged in
the business of sale and distribution of electricity
within its franchise area. The Chua’s are the
beneficial users at their residence of electric service
provided by MERALCO. From June 11,
1996 to September 11, 1996, the Chua’s consumed
between 231 to 269 kilowatt hours of electricity per
month, with their corresponding monthly electric
bills ranging from P747.84 to P887.27.
• In October 1996, the Chua’s were surprised to
receive an electricity bill for the amount
of P4,906.87 for the period of September 11
to October 11, 1996 (September 1996 bill).
According to this bill, they consumed 1,297 kilowatt
hours for this one month period, or approximately
553% higher than their previous monthly
bill. Alarmed by the significant increase, Florence
Chua (the Chua’s daughter) went to the MERALCO
office to question the bill. Florence paid the bill
under protest to avoid disconnection.
• On October 31, 1996, MERALCO responded to the
Chua’s complaint by sending a representative,
Francisco Jose Albano, to their residence to inspect
the electric meter. Albano filed a Meter/Socket
Inspection Report stating that he replaced the old
meter and installed a new one because the old
meters terminal seal was missing, the cover seal was
broken, and the meter had a broken sealing wire.
• The Chua’s were billed based on the new meter and
its readings from October 11, 1996 to January 24,
1997, with an average usage ranging from 227 to
254 kilowatt hours, with corresponding monthly
electric bills ranging from P700.00 to P800.00.
• On January 3, 1997, the Chua’s received a letter
from MERALCO, stating that: Given the above
condition(s) and in accordance with the rules
implementing Republic Act 7832, you are billed the
amount of P183,983.66 (rate charge of P179,353.26
and energy tax of P4,630.40). Furthermore, the
company is now allowed to collect Surcharges as a
penalty for all Violation of Contract cases
apprehended effective January 17, 1995, which
would be collected later.
• The Chuas refused to pay as demanded. On January
24, 1997, MERALCO returned to their residence
and removed meter, thereby disconnecting their
electric supply.
• On February 5, 1997, MERALCO sent the Chuas
another demand letter stating that it had re-evaluated
the Chuas case based on field findings and the
22
documents they furnished, and reduced the amount
they had to pay from P183,983.66 to P71,737.49.
• On March 11, 1997, the Chuas filed a complaint for
mandamus and damages, praying that they be
granted a preliminary mandatory injunction to
compel MERALCO to restore the electrical
connection to their residence. The Chuas also asked
the court to award them moral and exemplary
damages, attorneys fees, and litigation expenses.
• After trial, the RTC rendered its decision in favor of
the Spouses Chua. Court of Appeals affirmed the
decision of the RTC.
• MERALCO points out that it did not immediately
disconnect electric service to the Chuas. It first sent
several demand letters explaining the meter
tampering and demanding payment for the billed
differential. It was only after the Chuas refused to
pay the differential billing that MERALCO
disconnected their electric service. Additionally,
MERALCO contends that based on Section 9 of RA
7832, no writs of injunction shall be issued by any
court against any private electric utility exercising
its right and authority to disconnect electric service
unless there is prima facie evidence that the
disconnection was made with evident bad faith or
grave abuse of authority. Since the Chuas failed to
prove MERALCOs evident bad faith in
disconnecting their electric service, they are not
entitled to an injunctive writ.
• MERALCO further posits that the deliberate
manipulation of the dial pointers prevented the full
and correct billing of the electric energy actually
delivered to and consumed by the Chuas. The
differential billing represents the monetary
equivalent of the electricity used by the Chuas but
not registered by the meter. Lastly, MERALCO
maintains that even if it had no right to disconnect
the Chuas electric service, the Chuas nevertheless
are not entitled to moral damages. The Chuas did
not sustain damages after the disconnection since
they sourced their electric supply from another
electric meter within the premises.
 • ISSUES: 1. Whether or not MERALCO had the
right to disconnect the electric service of the Chua’s.
2. Whether or not the issuance of the
injunctive writ was in order.
3. Whether or not the Chua’s are entitled
of the moral damages.
• RULING: 1. NO. MERALCO had no right to
disconnect the electric service of the Chua’s. As
provided by law, the discovery of a tampered,
broken, or fake seal on the meter shall only
constitute prima facie evidence of illegal use of
electricity by the person who benefits from the
illegal use if such discovery is personally witnessed
and attested to by an officer of the law or a duly
authorized representative of the Energy Regulatory
Board (ERB). With such prima facie evidence,
MERALCO is within its rights to immediately
disconnect the electric service of the consumer after
due notice.
• In this case, we find no proof that MERALCO ever
complied with the required presence of an officer of
the law. In his testimony, Albano never mentioned
that he was accompanied by an authorized
government representative during the inspection. As
evident from the Meter/Socket Inspection Report,
only Albano inspected the Chuas electric meter; no
evidence shows that he was accompanied by anyone
else. Most telling of all, MERALCO does not even
allege in its submissions with this Court that an ERB
representative or an officer of the law ever
accompanied its representative during the inspection
of the Chuas electric meter.
• Even if Florence Chua, the Chuas daughter,
acknowledged that she witnessed Albanos
examination of the electric meter outside their house
so that she signed the Meter/Socket Inspection
Report, her presence did not characterize the
discovered broken meter seal as prima
facie evidence of illegal use of electricity justifying
immediate disconnection. The presence of the
consumer during the inspection cannot be a
substitute for the presence of the government
representative.
• Under the law, it states that MERALCO is
authorized to immediately disconnect the electric
service of its consumers without the need of a court
or administrative order when: (a) the consumer, or
someone acting in his behalf, is caught in flagrante
delicto in any of the acts enumerated in Section 4 of
RA 7832; or (b) when any of the circumstances
constituting prima facie evidence of illegal use of
electricity is discovered for the second time.
• In flagrante delicto means [i]n the very act of
committing the crime. To be caught in flagrante
delicto, therefore, necessarily implies positive
identification by an eyewitness or eyewitnesses to
the act of tampering so that there is direct evidence
of culpability, or that which proves the fact in
dispute without the aid of any inference or
presumption. In the present case, however,
MERALCO presented no proof that it ever caught
the Chuas, or anyone acting in the Chuas behalf, in
the act of tampering with their electric meter. As
correctly observed by the CA, the Chuas could not
have been caught in flagrante delicto committing the
tampering since in the first place, they were the ones
who reported the defect in their meter. Moreover,
the presence of a broken cover seal, broken sealing
wire, and a missing terminal seal, is not enough to
declare the Chuas in flagrante delicto tampering
with the electric meter. As the basic complaint for
mandamus alleged, without any serious refutation
from the petitioner, the electric meter is in a
concrete post outside of the Chuas perimeter fence;
hence, in a location accessible to the public. We
note, too, that MERALCO did not present any
evidence that it caught the Chuas committing any of
the acts constituting prima facie evidence of illegal
use of electricity for the second time.
• 2. YES. Under the circumstances, we cannot but
conclude that MERALCO abused its superior and
dominant position as well as the authority granted to
it by law as a service provider when it persisted in
disconnecting the Chuas electric service.
23
• Under Section 9. Restriction on the Issuance of
Restraining Orders or Writs of Injunction. No writ
of injunction or restraining order shall be issued by
any court against any private electric utility or rural
electric cooperative exercising the right and
authority to disconnect electric service as provided
in this Act, unless there is prima facie evidence that
the disconnection was made with evident bad faith
or grave abuse of authority. Hence, the general
prohibition against the issuance of a restraining
order or an injunction under Section 9 of RA 7832
cannot apply. Rather, what must prevail is the
exception: an injunction can issue when a
disconnection has been attended by bad faith or
grave abuse of authority.
• We add that while electricity is property whose
enjoyment, as a general rule, the owner may extend
or deny to others,electricity is not an ordinary kind
of property that a service provider may grant or
withhold to consumers at will. Electricity is a basic
necessity whose generation and distribution is
imbued with public interest, and its provider is a
public utility subject to strict regulation by the State
in the exercise of police power. In view of the
serious consequences resulting from immediate
disconnection of electric service, the law provides
strict requisites that MERALCO must follow before
it can be granted authority to undertake instant
disconnection of electric service due to its
consumers. In view of MERALCOs dominance over
its market and its customers and the latter’s
relatively weak bargaining position as against
MERALCO, and in view too of the serious
consequences and hardships a customer stands to
suffer upon service disconnection, MERALCOs
failure to strictly observe these legal requirements
can be equated to the bad faith or abuse of right that
the law speaks of.
• As to whether the Chuas are entitled to a writ of
mandatory injunction, we rule in the affirmative. An
injunctive writ issues only upon a showing that: a)
the applicant possesses a clear and unmistakable
right; b) there is a material and substantial invasion
 of such right; and c) there is urgent and permanent
necessity for an injunctive writ to prevent serious
damage. In the present case, the Chuas have
established that they are paying MERALCO
customers. In the absence of the prima
facie evidence required by Section 4 and by the
requirements of Section 6 of RA 7832 that the
Chuas tampered with their electric meter, and in
light as well of the merits of the Chuas case as
discussed below, the Chuas have an unmistakable
right to be provided with continuous power supply a
right MERALCO obviously invaded when it cut off
the Chuas electric service. Electricity being what it
is and has been in modern day living, an urgent and
permanent need exists to prevent MERALCO from
cutting off the Chuas electric service under the
circumstances that gave rise to the present dispute.
Accordingly, we uphold the RTC and CA decisions
ordering MERALCO to immediately restore the
Chuas electric service.
Defamation
• 3. YES. Article 32 of the Civil Code provides that
moral damages are proper when the rights of
individuals, including the right against deprivation
of property without due process of law, are violated.
Jurisprudence has established the following
requisites for the award of moral damages: (1) there
is an injury whether physical, mental, or
psychological clearly sustained by the claimant; (2)
there is a culpable act or omission factually
established; (3) the wrongful act or omission of the
defendant is the proximate cause of the injury
sustained by the claimant; and (4) the award of
damages is predicated on any of the cases stated in
Article 2219 of the Civil Code.
• Considering the manner MERALCO disconnected
the Chuas electric service, we find the award of
moral damages proper. Apart from the havoc
wreaked on the Chuas daily lives when MERALCO
abruptly and without legal basis cut off their
electricity, the removal of the electric meter also
caused the Chuas extreme social humiliation and
embarrassment as they were subjected to
speculations in their neighborhood of being power
thieves. As Mrs. Felicidad Chua testified, she
suffered sleepless nights and felt serious anxiety
after the removal of their electric meter came to the
attention of the barangay. In fact, she even had to
consult a doctor for this anxiety. Thus, even if the
Chuas did subsequently obtain their electricity from
another source, the damage to the Chuas reputation
and social standing had already been done.
• As prevailing jurisprudence deems the award of
moral damages in the amount of P100,000.00
appropriate in cases where MERALCOwrongfully
disconnected electric service, we uphold the CA
ruling, reducing the moral damages awarded
from P300,000.00 to P100,000.00.
• Article 33:In case of defamation, fraud or physical
injuries, and action separate and distinct from the
criminal action may be maintained by the injured
party.
• The offense of injuring a person’s character, fame or
reputation through false and malicious statements;
• Tends to injure reputation or to diminish the esteem,
respect, good will or confidence in the plaintiff or to
excite derogatory feelings or opinions about the
plaintiff;
• publication of anything which is injurious to the
good name or reputation of another or tends to bring
him into disrepute.
• invasion of relational interest since it involves the
opinion which others in the community may have,
or tend to have, of the plaintiff. (MVRS
Publications, Inc. et al vs. Islamic Da’wah Council
of the Philippines Inc, et al)
• A statement is defamatory if it tends to
• injure the plaintiff in his trade;
• profession, or community standing
24
• lower him in the estimation of the
community.
(Liberty Lobby Inc. v. Dow Jones & Co.)
Libel- written defamation
Slander - oral defamation
• Article 353 of RPC - Definition of LibelPublic and
malicious imputation of a crime, or of a vice or
defect, real or imaginary, or any act, omission,
condition, status, or circumstance tending to cause
the dishonor, discredit, or contempt of a natural or
juridical person, or to blacken the memory of one
who is dead.
Libel means by writing or
similar means A libel committed by means of writing, printing,
lithography, engraving, radio, phonograph, painting, theatrical
exhibition, cinematographic exhibition, or any similar means,
shall be punished by prisioncorreccional in its minimum and
medium periods or a fine ranging from 200 to 6,000, or both,
in addition to the civil action which may be brought by the
offended party.
Article 356
Threatening to publish and offer to present such publication for
a compensation
The penalty of arresto mayor or a fine from 200 to 2,000 pesos,
or both, shall be imposed upon any person who threatens
another to publish a libel concerning him or the parents,
spouse, child, or other members of the family of the latter or
upon anyone who shall offer to prevent the publication of such
libel for a compensation or money consideration.
Slander
Oral defamation shall be punished by arresto mayor in its
maximum period to prisioncorreccional in its minimum period
if it is of a serious and insulting nature; otherwise, the penalty
shall be arrestomenor or a fine not exceeding 200 pesos,
Slander by deed
The penalty of arresto mayor in its maximum period to
prisioncorreccional in its minimum period or a fine ranging
from 200 to 1,000 pesos shall be imposed upon any person
who shall perform any act not included and punished in this
title, which shall cast dishonor, discredit or contempt upon
another person. If said act is not of a serious nature, the penalty
shall be arrestomenor or a fine not exceeding 200 pesos.
Applicability to
Article 33 of New Civil Code
• Jurisprudence on and the concepts and requirements
of defamation under RPC are also used to determine
liability for damages under Article 33 of the New
Civil Code.
Cyberlibel
• Section 4 of R.A. No. 10175 or the
“CYBERCRIME PREVENTION ACT OF 2012”
provides that:
Libel - The unlawful or prohibited acts of libel as defined in
Article 355 of the Revised Penal Code, as amended, committed
through a computer system or any other similar means which
may be devised in the future.
• 1.
Disini, Jr. et al v. The Secretary of Justice
• The SC sustained the constitutionality of the
provision insofar as the cybercrime law penalizes
the author of the libelous statement or article. The
provision merely incorporates to form part of it the
provisions of the RPC on libel.
Reason for Liability
The desire to protect the reputation of every individual.
FREEDOM OF THE PRESS
Quisumbing v. Lopez, et al
• The SC emphasized that every citizen has the right
to enjoy a good name and reputation, but should not
let the respondents violate the right or abuse the
freedom of the press.
• The newspapers should be given such leeway and
tolerance as to enable them to courageously and
effectively perform their important role on the
democracy.
• In the preparation of stories, press reporters and
edition usually have to race with their deadlines; and
consistently with good faith and reasonable care,
they should not be held to account, to a point of
suppression, for honest mistakes or imperfection in
the choice of words.
Test in Determining Liability:
• The constitutional guarantees require a federal rule
that prohibits a public official from recovering
damages for a defamatory falsehood relating to his
official conduct unless he proves that the statement
was made with actual malice. (Lopez v. CA)
Requisites of Liability: (Ramos v. CA)
There must be defamatory imputation;
2. Imputation must be malicious;
3. The imputation must be given publicity; and
4. The victim must be identifiable.
Imputation is defamatory
The defamatory character may be established by showing that:
DEFAMATORY as a matter of law
- if the defamation is so plain that the charge is
automatically deemed libelous.
Test in Determining the Defamatory Character of the words
Used:
25
• Words calculated to induce suspicion are sometimes
more effective to destroy reputation than false
charges directly made. Ironical and metaphorical
language is favored vehicle of slander. A charge is
sufficient if the words are calculated to induce the
hearers to suppose and understand that the person or
persons against whom they were uttered were guilty
of certain offense, are sufficient to impeach their
honesty, virtue, or reputation, or to hold the person
or persons up to public ridicule. (Sazon v. CA)
Standard of an Ordinary Reader
• In determining the defamatory character of words
used, the judge must consider the allegedly libelous
passages in the context of the entire article and
evaluate the words as they are commonly
understood. He must put himself in the shoes of the
average reader and decide whether such reader
would interpret the message as libellous.
Community Standard
• The mere fact that the plaintiff’s feeling and
sensibilities have been offended is not enough to
create a cause of action for defamation.
• Defamation requires that something be
communicated to a third person that may affect the
opinion others may have of the plaintiff.
• The unprivileged communication must be shown of
a statement that would tend to hurt the plaintiff’s
reputation, to impair plaintiff’s standing in the
community.
• The focus of a defamation action is upon the
allegedly defamatory statement itself and its
predictable effect upon third persons. (MVRS
Publications, Inc. v. Islamic Da’wah Council of the
Phils)
Allegation of Non-Performance of Obligation
• Mere assertion that a person failed to refused to
perform contractual obligation does not, in and of
 itself, injure the person’s business reputation or
deprive him of public confidence. (Insular Life
Insurance Assurance v. Serrano)
Imputation of a Crime, Vice, or Defect
• There is a defamatory imputation if there is a
statement that a public official is guilty of
misconduct in public office, bribery, malversation of
public funds, graft, and corruption. The gravity of
the imputations is sufficient to impeach the public
official’s honesty, virtue, integrity, and reputation as
a public official. (Lopez Daez v. CA)
Publication (communication of the defamatory information to
third persons)
• It is not required that the publication is made in
media publications. Publication is also sufficient if
the defamatory statement was written in a wall using
a paint brush or if painted on billboards. (Magno v.
People; Lopez v. People)
• Dissemination to a number of people is, however,
not required and communication to a single
individual is sufficient.
• The sending of an unsealed libelous letter to the
offended party constitutes publication. There is a
reasonable probability that the contents of the
unsealed envelope, particularly the libelous letter,
could be read by a third person. (Magno v. People)
Malice
• There is malice when the author of the imputation is
prompted by personal ill-will or spite and speaks not
in response to a duty but merely to injure the
reputation of the person who claims to have been
defamed. (Alonzo v. CA)
• To be considered malicious, the libelous statement
must be shown to have been written or published
with the knowledge that they are false or in reckless
disregard of whether they are false or not.
(Villanueva v. Philippine Daily Inquirer)
Reckless disregard of what is false or not
• the author or publisher entertains serious doubts as
to the truth of the publication, or that he possesses a
high degree of awareness of their probable falsity.
• Only those statements made with the high degree of
awareness of their probable falsity demanded by
jurisprudence may be the subject of either civil or
criminal sanctions. (Garrison v. State of Louisiana)
Evidence of Malice (Sazon v. CA)
• Extrinsic evidence
• Reliance on the words used by the defendant and the
circumstances attending the publication of the
defamatory imputation.
Source of News Report
• A reporter may rely on information given by a lone
source although it reflects only one side of the story
provided the reporter does not entertain a high
degree of awareness of its probable falsity. (Flor v.
People)
• While the journalist may be held criminally liable
for libel, he cannot be compelled to reveal the
source of the information given to him in confidence
unless a House or committee of Congress
determines that revealing the source is demanded by
the security of the State.
KINDS OF MALICE
Malice in law
(constructive malice, legal malice or implied malice)
• presumption of law
• dispenses with the proof of malice when words that
raise the presumption are shown to have been
uttered.
Article 354 of RPC
26
• Every defamatory imputation is presumed to be
malicious, even if it is true, if no good intention and
justifiable motive for making it shown.
• The plaintiff or the prosecution need not prove
malice on the part of the defendant.
• The burden is on the side of the defendant to show
good intention and justifiable motive in order to
overcome the legal inference of malice. (Sazon v.
Ca)
Article 354 of RPC (EXCEPTION)
1. A private communication made by any person to
another in the performance of any legal, moral or
social duty; and
2. A fair and true report, made in good faith, without
any comments or remarks, of any judicial,
legislative or other official proceedings which are
not of confidential nature, or of any statement,
report or speech delivered in said proceedings, or of
any other act performed by public officers in the
exercise of their functions.
Malice in fact
(express malice, real malic, true malice or particular malice)
Identification of the Defamed
• To be successful, the plaintiff must establish that the
defamatory statement referred to him.
• It is essential that the victim be identifiable although
it is not necessary that he be named.
• It is sufficient if it is shown that the offended party
is the person meant or alluded to. (Yuchengco v.
The Manila Chronicle Publishing Corp)
• It is also not sufficient that the offended party
recognized himself as the person attacked or
defamed, but it must be shown that at least a third
person could identify him as the object of the
libelous publication. (Borjal v. CA)
Group Libel
• If the defamatory statements were directed at a
small, restricted group of persons, they applied to
any member of the group, and an individual member
could maintain an action for defamation.
• When the defamatory language was used toward a
small group or class, including every member, it has
been held that the defamatory language referred to
each member so that each could maintain an action.
• If the defamatory words are used broadly in respect
to a large class or group of persons, and there is
nothing that points to a particular member of the
class or group, no member has a right of action for
libel or slander.
• Where the defamatory matter had no special,
personal application and was so general that no
individual damage could be presumed, and that the
class referred to was so numerous, no private action
could be maintained.
Deceased
• Relatives of the deceased can file an action for
damage to the reputation of the latter. (Article 353
of RPC)
Corporation
• The corporate can file a case if its reputation as an
entity was defamed.
• Libel is one of the exceptional cases when the
corporation can claim moral damages because the
claim of moral damages falls under item 7 of Article
2219 of the NCC. Said provision does not qualify
whether the plaintiff is a natural or juridical person.
Therefore a juridical person such as a corporation
can validly complain for libel or any other form of
defamation and claim for moral damages. (Filipinas
Broadcasting Network Inc. v. AMEC-BCCM)
DEFENSES
• to escape liability, the defendant or accused in a
defamation case may claim that the statements made
are privileged.
• PRIVILEGED STATEMENTS
• ABSOLUTE – the imputation is not
actionable, even if attended by actual
malice
• CONDITIONAL (QUALIFIEDLY
PRIVILEGED COMMUNICATION) –
may still be actionable if actual malice is
proven
TEST OF GOOD FAITH / bona fides
• To determine w/on the same can be considered
protected
• Even if untrue, the same may not be considered
defamatory
UNITED STATES V. FELIPE BUSTOS
“Communication made bona fide upon any subject-matter in
which the party communicating has an interest, or in reference
to which he has a duty, is privileged, if made to a person
having a corresponding interest or duty, although it contained
incriminatory matter which without his privilege would be
slanderous and actionable.”
-Lord Campbell, C.J.
• Must be made under honest sense of duty, a self-
seeking motive is destructive. Personal injury is not
necessary. All persons have an interest in the pure
and efficient administration of justice and of public
affairs. The duty under which a party is privileged is
sufficient if it is social or moral in its nature and this
person in good faith believe he is acting in
pursuance thereof although in fact he is mistaken
intemperate terms.
• A further element of the law of privilege concerns
the person to whom the complaint should be made.
27
The rule is that if a party applies to the wrong
person through some natural and honest mistake as
to the respective functions of various officials such
unintentional error will not take the case out of the
privilege.
MALICE can be presumed from defamatory words.
PRIVILEGE destroy that presumption.
The ONUS of proving malice then lies on the plaintiff.
The plaintiff must bring home to the defendant the existence of
malice as the true motive of his conduct.
FALSEHOOD and the ABSENCE OF PROBABLE CAUSE
will amount to proof of malice
(see white V. Nicholls [1845], 3 how., 266)
A privileged communication should not be subjected to
microscopic examination to discover grounds of malice or
falsity. Such excessive would defeat the protection which the
law throws over privileged communications.
The ultimate test is that of Bona Fides.
(see white V. Nicholls [1845], 3 how., 266)
ABSOLUTELY PRIVILEGED MATTERS
• Statements made in official proceedings of the
legislature by members thereof (Sec. 11 of Art. VI,
1987 Constitution)
• Statements made in the course of judicial
proceedings but only if they are pertinent/ relevant
to the case involved.
• A public officer must not be too thin skinned with
reference to comment upon his official acts.
• Criticism does not authorize defamation.
Nevertheless, as the individual is less than the State,
so must expected criticism be born for the common
good. Rising superior to any official or set of
officials, to the Chief Executive, to the Legislature,
to the Judiciary – to any or all the agencies of
Government – public opinion should be the constant
source of liberty and democracy.
• Wason v. Walter, 4 L.R. 4 Q.B., 73;
Seymour v. Butterworth, 3 F. & F., 372;
 The Queen v. Sir R. Garden, 5 Q. B. D.,
1)
• The guaranties of a free speech and a free press
include the right to criticize judicial conduct.
• Attempted terrorization of public opinion on the part
of the judiciary would be tyranny of the basset sort.
• On the contrary, it is a duty which every one owes to
society or to the State to assist in the investigation of
any alleged misconduct. It is, further, the duty of all
know of any official dereliction on the part of a
magistrate or the wrongful act of any public officer
to bring the facts to the notice of those whose duty it
is to inquire into and punish them
“The people are not obliged to speak of the conduct of their
officials in whispers or with bated breath in a free government,
but only in a despotism.”
- Justice Gayner, Howarth v. Barlow [1906], 113
App. Div., N.Y., 510
-
Qualified privilege communication
ART. 354 Requirement for publicity. – Every defamatory
imputation is presumed to be malicious, even if it be true, if no
good intention and justifiable motive for making it is shown,
except in the following cases:
1. A private communication made by any person to
another in the performance of any legal, moral, or
social duty; and
2. A fair and true report, made in good faith, without
any comments or remarks, of any judicial,
legislative, or other official proceedings which are
not of confidential nature, or of any statement,
report, or speech delivered in said proceedings, or of
any other act performed by public officers in the
exercise of their functions
ART. 354 Requirement for publicity.
• Non-constitutional privileged statements
• Imputations can still be shown to be malicious by
proof/actual malice or malice in fact
• Known to be qualifiedly privileged communications
• Merely exceptions to the general rule
• Every defamatory imputation is presumed
to be malicious even if true, if no good
intention and justifiable motive is shown
• Presumption of malice is done away with when the
defamatory imputation qualifies as privileged
communication
• XPN: Proof of actual malice is required in order that
a defamatory imputation may be held actionable
-BASED ON WIDER GUARANTEE OF FREEDOM OF
EXPRESSION AS AN INSTITUTION OF ALL
REPUBLICAN SOCIETIES
FREEDOM OF EXPRESSION
• Ordinary citizen has a right and duty to involve
himself in matters that affect the public welfare, and,
for this purpose to inform himself of such matters.
Enumeration in art. 354 not exclusive
• Fair commentaries on matters of public interest are
likewise privileged.
1. A private communication made by any
person to another in the performance of
any legal, moral or social duty
2. A fair and true report, made in good faith,
without any comments or remarks, of any
judicial, legislative or other official
proceedings which are not confidential in
nature, or any statement, report or speech
delivered in said proceedings, or of any
28
other act performed by public offciers in
the exercise of their functions
3. Fair commentaries on matters of public
concern
• If no public interest can be invoked, the persons
accused of libel cannot claim that the newspaper
article is covered by the qualified privilege
Binay v. secretary of justice
• SC: “ xxx cannot discern a legal, moral, or social
duty in publishing Joanna’s status as an adopted
daughter. Neither is here any public interest
respecting her purchases of panties worth P1,000.00.
Whether she indeed bought those panties is not
something that the public can afford any protection
against. With this backdrop, it is obvious that private
respondents’ only motive in inserting paragraph 25
in the subject article is to embarrass Joanna before
the reading public.
Private communications (par 1, art. 354)
a) The person who made the communication had a
legal, moral, or social duty to make the
communication, or at least, had an interest to
protect, which interest may either be his own or of
the one to whom it is made;
b) The communication is addressed to an officer or a
board, or superior, having some interest or duty in
the matter, and who has the power to furnish the
protection sought; and
c) The statements in the communication are made in
good faith and without malice.
United states v. caÑete
• The interest sought to be protected by the person
making the communication need not be his own, but
may refer to an interest shared by the other members
of the society
United states v. bustos
• SC:”xxx Private communication is a communication
made bona fide upon any subject-matter in which
the party communicating has an interest, or in
reference to which he has a duty, is privileged, if
made to a person having a corresponding interest or
duty, although it contained incriminatory matter
which without this privilege would be slanderous
and actionable.
• Eg. A complaint made in good faith and
without malice in regard to the character
or conduct of a public official when
addressed to an officer or a board having
some interest or duty in the matter.”
Buatisjr. v. people
• The accused admitted that he dictated the letter to
one of her secretaries who typed the same and made
a print out of the computer.
• While accused addressed the reply-letter to the
complainant, the same letter showed that it was copy
furnished to all concerned.
• His lack of selectivity is indicative of malice and is
anathema to his claim of privileged communication.
• Such publication had already created upon the
minds of the readers a circumstance which brought
discredit and shame to the complainant’s reputation.
• Since the letter is not a privileged communication,
malice is presumed under Art. 354 of the Revised
Penal Code.
COMPLAINTS
AGAINST
PUBLIC OFFICIALS
• A complaint against public officials addressed to
proper authorities is qualifiedly privileged within the
purview of par. 1 art. 354 because the filing thereof
is being done in the performance of one’s duty as a
citizen
• It is a right and duty of a citizen to make a complaint
of any misconduct on the part of public officials,
which comes to his notice, to those charged with
supervision over them
• Such complaints should be addressed solely to some
official having jurisdiction to inquire into the
charges, or power to redress the grievance or has
some duty to perform or interest in connection
therewith*
Report to a
superior officer
• In the case of Deano v. Godinez:
• “Indeed, the communication now
denounced by plaintiff as a defamatory is
one sent by defendant to his immediate
superior in the performance of a legal
duty, or in the nature of a report
submitted in the exercise of official
function.
• “He sent it as an explanation of a matter
contained in an indorsement sent to him
by his superior officer. It is a report
submitted in obedience to a lawful duty,
though in doing so defendant employed a
language somewhat harsh and uncalled
for. But such is excusable in the interest
of public policy.”
• XPN: The privilege is negated if the report is
circulated to other persons.
• Thus, in one case, the letter report lost its character
as a qualified privileged communication when the
defendant furnished copies thereof to several
provincial and national government agencies which
had no interest, right or duty to prosecute said
charges.*
29
Qualified privilege communication
ART. 362 Libelous remarks – Libelous remarks or comments
connected with the matter privileged under the provisions of
Article 354, if made with malice, shall not exempt the author
thereof nor the editor or managing editor of a newspaper from
criminal liability
ALLEGATIONS
IN PLEADINGS
• Allegations and averments in pleadings filed in
court are absolutely privileged as long as they are
relevant or pertinent to the issues
• Test of Relevance
• To break through the protective barrier of
an absolutelty privileged communication
is not bona fides
• No liability so long as averments are relevant to the
issues involved in the case
Justiniani v. Castillo
• Statements made in a pleading in a civil action are
absolutely privileged and no action for libel may be
founded thereon provided such statements are
pertinent and relevant to the subject inquiry,
however false and malicious they may be.
• In People v. Aquino, we held that the person who
freely articulated himself while exercising his duty
under the express authority of law, may he be the
judge, lawyer or witness, does not expose himself to
the risk of criminal prosecution or of an action for
damages.
• “If the rule were otherwise, the courts would be
flooded with libel suits from irate litigants who will
be suing each other on the basis of each and every
pleading. Such a rule will breed endless vexatious
litigations contrary to public policy and the orderly
administration of justice.”
Publication and
news report of a
Pleading
• Is the publication of a complaint filed in court or any
quasi-judicial agency before any judicial action is
taken thereon, privileged as a report of a judicial
proceeding?
• Cuenco v. Cuenco
• “xxx not only because said pleadings
have become part of public record open to
the public scrutinize, but also due to the
undeniable fact that said pleadings are
presumed to contain allegations and
assertions lawful and legal in nature,
appropriate to the disposition of issues
ventilated before the courts for the proper
administration of justice and, therefore, of
general public concern. Moreover,
pleadings are presumed to contain
allegations substantially true because they
can be supported by evidence presented in
good faith, the contents of which would
be under the scrutiny of courts, and
therefore, subject to be purged of all
improprieties and illegal statements
contained therein.
• Cuenco v. Cuenco
• “We are firmly convinced that the correct
role on the matter should be that a fair
and true report of a complaint filed in
court without remarks nor comments even
before an answer is filed or a decision
promulgated should be covered by the
privilege.”
Manuel v. pano
• Publication of a complaint, being true a true and fair
report of a judicial proceeding, made in good faith
without comment or remarks, is privileged and
comes under Item 2 of Article 354.
• It is no longer correct to state that Art. 354 is not
applicable because the published complaint as filed
would not by itself constitute a judicial proceeding,
as the issues have not as yet been joined.
Gma network, inc.et. Al. v. bustos
• Falls under second kind of qualifiedly privileged
communications under Art. 354
• Involved in the news telecast was narration of the
allegations in the Petition for Mandamus filed in
court.
• However the plaintiff was not bale to establish
actual malice in the case.
• SC: “The subject news report was clearly a fair and
true report, a simple narration of the allegations
contained in and circumstances surrounding the
filing by the unsuccessful examinees of the petition
for mandamus before the court, and made without
malice.”
• Petitioners entitled to the protection and the
immunity of the rule on privileged matters under
Art. 354 (2) of the RPC
• They cannot therefore be made liable for damages
sought by the plaintiffs who were holding public
office.
• EXCECPTION:A reporter, editor or manager of a
newspaper, daily or magazine may be made liable
for libel under Art. 357 of the Revised Penal Code if
he publishes facts connected with the private life of
another and offensive to honor virtue and reputation
of said person even though said publication is made
in connection with or under the pretext that it is
necessary in the narration of any judicial or
administrative proceedings wherein such facts have
been mentioned
Public officers
and public figures
30
New York times v. Sullivan
• Then City commissioner L.B. Sullivan of
Montgomery, Alabama, sued New York Times for
publishing a paid political advertisement espousing
racial equality and describing police atrocities
committed against students inside a college campus.
• As commissioner having charge over police actions
Sullivan felt that he was sufficiently identified in the
ad as the perpetrator of the outrage: Consequently,
he sued New York Times on the basis of what he
believed were libellous utterances against him
• US Supreme Court ruled against Sullivan
• Honest criticisms on the conduct of public
officials and public figures are insulated
from libel judgments.
• The guarantees of freedom of speech and
press prohibit a public official or public
figure from recovering damages for a
defamatory falsehood relating to his
official conduct unless he proves that the
statement was made with actual malice,
i.e., with knowledge that it was false or
with reckless disregard of whether it was
false or not.
New York times doctrine
• “To require critics of official conduct to guarantee
the truth of all their factual assertions on pain of
libel judgments would lead to self-censorship, since
would be critics would be deterred from voicing out
their criticisms even if such were believed to be true,
or were in fact true, because of doubt whether it
could be proved or because of fear the expense of
having to prove it.” (emphasis supplied)
Borjal v. court of appeals
• SC clarified that writings may still be considered
privileged even they are not within the exceptions of
Art. 354 of the Revised Penal Code, that is, even if
 they are neither “private communications” nor “fair
and true report without any comments or remarks.”
• The enumeration under Art. 354 is not an exclusive
list of qualifiedly privileged communications.
• GR: Malice can be presumed from defamatory
words, the privileged character of a communication
destroys the presumption of malice.
• The onus of proving actual malice then lies on
plaintiff.
• The plaintiff must bring home to the defendant, the
existence of malice as the true motive of his
conduct.
PRIVATE INDIVIDUAL
• The prosecution need not prove the presence of
malice.
• Law explicitly presumes its existence (malice in
law) from the defamatory character of the assailed
statements.
• The accused must show that he has a justifiable
reason for the defamatory statement even if it was in
fact true.
Fair comments &
other doctrines
DOCTRINE OF FAIR COMMENT
• Fair commentaries on matters of public interest are
privileged and constitute a valid defense in an action
for libel or slander.
• When the discreditable imputation is directed
against public person in his public capacity it is not
necessarily actionable
• False allegation of a fact
• Comment based on false supposition
• If the comment is an expression of opinion, based on
established facts, then it is immaterial that the
opinion happens to be mistaken mas long as it might
reasonably be inferred from facts.
Privilege of neutral reportage
• Filipinas Broadcasting Networks, Inc. v. Ago
Medical and Educational Center – Bicol, et. Al.
• “xxx Under this privilege, a republisher
who accurately and disinterestedly reports
certain defamatory statements made
against public figures is shielded from
liability, regardless of the republisher’s
subjective awareness of the truth or falsity
of the accusation. xxx”
Actual malice rule
• Prosecution failed to prove not only that the charges
made by the petitioner were false but also that
petitioner made them with knowledge of their falsity
or with reckless disregard of whether they were false
or not.
• Gertz v. Robert Welch, Inc.
• Society’s interest on public officials is not
limited to the discharge of his official
functions. Public interest extends to
anything which might touch on an
official’s fitness for office
• Hence, the “actual malice” rule applies on
publications relating thereto.
Public figure
“Any person who, by his acomplishments, fame, mode of
living, or by adopting a profession or calling which gives the
public a legitimate interest in his doings, his affairs, and his
character has become a ‘public personage’. He is, in other
words, a celebrity. Obviously, to be included in this category
are those who have achieved some degree of reputation by
appearing before the public, as in the case of an actor, a
31
professional baseball player, a pugilist, or any other
entertainer. “
-Ayers Producion Pty., Ltd., v. Capulong
• Involuntary Public Figures
• Become public figures through no
purposeful actions of their own
• All-purpose public figures
• Attain a status according to which they
assumed roles of special prominence in
the affairs of the society
• Occupy positions of such pervasive
power and influence
• Limited-purpose public figures
• Thrust themselves to the forefront of
particular public controversies in order to
influence the resolution of the issues
involved
• Invite attention and comment
Private parties who are not public figures
• Philippine Journalist, Inc. (People’s Journal) v.
Theonen
• “A newspaper or broadcaster publishing defamatory
falsehoods about an individual who is neither a
public official nor a public figure may not claim
constitutional privilege against liability, for injury
inflicted, even if the falsehood arose in a discussion
of public interest.”
• No qualified privilege for defamatory remarks
against private individuals who are not public
figures. Malice in fact need not be proved.
Philippine Journalist, Inc. (People’s Journal) v. Theonen
 • First, Public officials and public figures usually
enjoy significantly greater access to the channels of
effective communication and hence have a more
realistic opportunity to counteract false statements
than private individuals normally enjoy. Private
individuals are therefore more vulnerable to injury,
and the state interest in protecting them is
correspondingly greater.
• Second, an individual who decides to seek
governmental office must accept certain necessary
consequences of that involvement in public affairs.
He runs the risk of closer public scrutiny than might
otherwise be the case. Those classed as public
figures stand in a similar position. For the most part
those who attain this status have assumed roles of
especial prominence in the affairs of society. Some
occupy positions of such persuasive power and
influence that they are deemed public figures for all
purposes. More commonly, those classed as public
figures have thrust themselves to the forefront of
particular public controversies in order to influence
the resolution of the issues involved. In either event,
they invite attention and comment.
• Third, this would impose an additional difficulty on
trial court judges to decide which publications
address issues of general interest and which do not.
Damages
Candidates
for public office
• Villanueva v. Philippine Daily Inquirer
• These are matters about which the public
has the right to be informed, taking into
account the very public character of the
election itself. For this reason, they
attracted media mileage and drew public
attention not only to the election itself but
to the candidates
Liberal treatment of libel
• SC MC NO. 08-2008 dated Jan. 25, 2008
• The Supreme Court clarified the liberal
policy in the imposition of penalties in
libel cases.
• All courts and judges concerned should
henceforth take note of the foregoing rule
of preference set by Supreme Court on
the matter of the Imposition of penalties
for the crime if libel.
• This Administrative Circular does not remove
imprisonment as an alternative penalty for the crime
libel under Article 355 of the Revised Penal Code;
• The Judges concerned may, in the exercise of sound
discretion, and taking into consideration the peculiar
circumstances of each case, determine whether the
imposition of a fine alone would best serve the
interests of justice or whether forbearing to impose
imprisonment would depreciate the seriousness of
the offense, work violence on the social order, or
otherwise be contrary to the imperative of justice;
• Should only a fine be imposed and the accused be
unable to pay the fine, there is no legal obstacle to
the application of the Revised Penal Code provision
on subsidiary imprisonment.
• Generally, the tiems of damages allowed under the
New Civil Code may awarded provided that the
damages are directly caused by the wrongful act.
• Under Art. 2219(7) of the New Civil Code, an
award of moral damages is allowed for libel, slander
or other forms of defamation
• “Implied Damages” mentioned in Juan Phee v. La
Vanguardia, Inc., is not recognized under the New
Civil Code and the Revised Penal Code.
• The rule recognizing “implied damages” for libel
per se is a presumption in common law that general
damages are incurred and the jury is permitted to
estimate the harm to the plaintiff’s reputation.
32
• General Damages is not recognized in the New Civil
Code provisions on Damages.
• In fact, the rule allowing “implied” or “general
damages” is already deemed abrogated by the Gerz
v. Robert Welch, Inc. ruling.
MITIGATION
• Filipinas Broadcasting Networks, Inc. v. Ago
Medical and Educational Center-Bicol, et. Al.,
• Evidence of an honest mistake or the
want of character or reputation of the
party libelled goes only in mitigation of
damages
• With respect to evidence of honest
mistake, the same may, in fact, exculpate
the defendant because it may establish
lack of malice.
• Filipinas Broadcasting Networks, Inc. v. Ago
Medical and Educational Center-Bicol, et. Al.,
• On the other hand, the New Civil Code
and the RPC does not provide that want
of character or reputation may mitigate
the damages to be awarded to the
plaintiff.
• However, it is also acceptable to reduce,
the amount of moral damages to be
awarded on account of such proof.
FRAUD
Tort of Fraud under Article 33 includes cases which constitute
the tort of deceit in the United States and in England.
Elements of cause of action:
1. Defendant made false representation to the plaintiff
2. The representation must be one of fact
 3. Defendant must know that the representation is false
or be reckless about whether it is false
4. Defendant must have acted on the false
representation
5. Defendant must have intended that the
representation should be acted on
6. Plaintiff suffered damages as a result of acting on
the representation
What constitutes false representation?
• Those made by spoken or written words
• Those made by conduct
• Which are calculated to mislead another and thereby
allow the defendant to obtain undue advantage over
them.
Section 526 of the Restatement of Torts considers
misrepresentation fraudulent if the maker:
1. Knows or believes that the matter is NOT as he
represents it to be
2. Does not have the confidence in the accuracy of his
representation that he states or implies
3. Knows that he does not have the basis for his
representation that he states or implies
Cases of fraud covered by Article 33 includes
• Estafa
• Misrepresentation by the seller or manufacturer
GR: OPINION IS NOT ACTIONABLE
SongcoVs. Sellner, 37 PHIL. 254
• Both Defendant, Sellner and the plaintiff, Songco
owned a farm and both properties had the sugar cane
ready to be cut.
• Sellner bought the Songco’s cane for P12,000 and
executed three promissory notes. One of the PNs
was not paid. Thus, instituted a case
• Sellner said promissory note was obtained from
him by means of certain false and fraudulent
representations therein specified.
• It is claimed that the plaintiff estimated that this
cane would produce 3,000 piculs of the sugar and
that the defendant bought the crop believing this
estimate to be substantially correct. As the crop
turned out it produced 2,017 piculs, gross, and after
the toll for milling was deducted the net left to the
defendant was very much less.
Issue: Whether or not the plaintiff was guilty
of fraudulent representation of his cane.
No. Misinterpretation upon a mere matter of opinion is not an
actionable deceit, nor is it a sufficient ground for avoiding a
contract as fraudulent. The law allows considerable latitude to
seller’s statements, or dealer’s talk; and experience teaches that
it is exceedingly risky to accept it at its face value.
A man who relies upon such an
affirmation made by a person whose interest might so readily
prompt him to exaggerate the value of his property does so at
his peril, and must take the consequences of his own
imprudence.
Elenita Ledesma Silva v. Esther Peralta
(G.R. No. L-13114)
• Saturnino Silva, an American citizen and US Army
officer, was married to one Priscilla Isabel of
Australia. While deployed in the Philippines,
Saturnino married appellee Esther which was
allegedly executed since no documents for the
purpose of marriage were prepared. The said
marriage produced a child.
• While in the US for medical treatment, Saturnino
divorced therein Priscilla and contracted another
marriage now with appellant Elenita Ledesma. Upon
Saturnino’s return to the Philippines, Esther
33
demanded support for the child and upon his refusal,
instituted a suit.
• Thereupon, Elenita moved to enjoin Esther from
representing herself as wife of Saturnino and prayed
for the award of moral damages for the humiliation
and distress she suffered upon learning his husband
had a child.
• Esther filed a counterclaim for actual damages and
fees due to the harassment and moral damages
caused by Saturnino’s marital relation with Elenita
and his subsequent refusal to acknowledge their
offspring.
Issue: Whether or not appellee Esther Peralta is entitled to
damages because of Saturnino’s affair and abandonment.
Ruling: YES.
The damages awarded are a natural and
direct consequence of Silva’s deceitful maneuvers in making
love to Esther, and inducing her to yield to his advances and
live with him as his wife (when Silva knew all the time that he
could not marry Esther Peralta because of his undissolved
marriage to an Australian woman, a prior wedlock that he
concealed from appellee).
It is clear that Esther Peralta would not
have consented to the liaison had there been no concealment of
Silva’s previous marriage, or that the birth of the child was a
direct result of this connection. That Esther had to support the
child because Silva abandoned her before it was born is
likewise patent upon the record, and we cannot see how said
appellant can be excused from liability therefor.
Physical injuries
Cases of physical injuries covered by Article 33 includes:
• Attempted, frustrated and consummated homicide
• Reckless imprudence
• Battery
• Assault
In Madeja vs Caro, cited Corpus vs. Paje, L-26737, July 31,
1969, 28 SCRA 1062, which states that reckless imprudence or
criminal negligence is not included in Article 33 of the Civil
Code is not authoritative.
Of eleven justices only nine took part in the decision and four
of them merely concurred in the result.
Article 34:When a member of a city or municipal police force
refuses or fails to render aid or protection to any person in case
of danger to life or property, such peace officer shall be
primarily liable for damages, and the city or municipality shall
be subsidiarily responsible therefor.
The civil action herein recognized shall be independent of any
criminal proceedings, and a preponderance of evidence shall
suffice to support such action.
Rationale: If they are unfaithful to their duty, Article 34 grants
to the person damaged a right action against a recreant
policeman.
On the other hand, the Subsidiary liability of cities and
municipalities, is imposed so that they will exercise great care
in selecting conscientious and duly qualified policemen and
exercise supervision over them in the performance of their
duties as peace officers.
HUMAN DIGNITY
• Examination of the torts involving the right of a
person to:
– Dignity
– Personality
– Privacy
– Peace of Mind
• “ART. 26. Every person shall respect the dignity,
personality, privacy and peace of mind of his
neighbors and other persons. The following and
other similar acts, though they may not constitute a
criminal offense shall produce a cause of action for
damages, prevention and other relief:
• Prying into the privacy of another’s residence;
• Meddling with or disturbing the private life or
family relations of another;
• Intriguing to cause another to be alienated from his
friends;
RESPECT FOR HUMAN DIGNITY
• Art. 26 and the provisions on moral damages are
included in order to remedy defects in old CC in so
far as it did not properly exalt human personality. •
The touchstone of every system of laws, of the
culture and civilization of every country, is how far
it dignifies man.
CONSTITUTIONAL RIGHT TO PRIVACY
• Privacy
• a)constitutional right to privacy rights included
◦ right against unreasonable search and
seizures (Sec. 2, Constitution)
◦ the right to privacy of one's
communication and correspondence
• (Sec. 3 (1), Constitution)
◦ right against self incrimination (Sec. 17,
Constitution)
• whether this expectation is one that
• society recognizes as reasonable
• Sec. 1. No person shall be deprived of life, liberty,
or property without due process of law, nor shall any
person be denied the equal protection of the laws.
• Sec. 2. The right of the people to be secure in their
persons, houses, papers, and effects against
34
unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue
except upon probable cause to be determined
personally by the judge after examination under oath
or affirmation of the complainant and the witnesses
he may produce, and particularly describing the
place to be searched and the persons or things to be
seized.
• Sec. 3. (1) The privacy of communication and
correspondence shall be inviolable except upon
lawful order of the court, or wh
• Sec. 6. The liberty of abode and of changing the
same within the limits prescribed by law shall not be
impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except
in the interest of national security, public safety, or
public health, as may be provided by law.
x xxxxxxxx
Sec. 8. The right of the people, including those employed
in the public and private sectors, to form unions, associations,
or societies for purposes not contrary to law shall not be
abridged.
Sec. 17. No person shall be compelled to be a witness against
himself.”
PRIVACY
• The United States Supreme Court has also fashioned
a limited constitutional right
• The Court has acknowledged that the rights
contained in the Bill of Rights imply a right for a
citizen to be free from government intrusion into the
most intimate family matters.
• In the Philippines, the right to be let alone is
likewise a constitutional right. In a recent decision,
the Supreme Court considered the right to privacy as
one of the fundamental constitutional rights.
REASONABLE EXPECTATION OF PRIVACY
• The Court has ruled that in passing laws and rules,
adequate safeguards should be mantained regarding
people’s reasonable expectation of privacy.
BLAS OPLE VS TORRES
FACTS:
• A.O. No. 308 was issued by President Fidel V.
Ramos on December 12, 1996 for the Adoption of a
National Computerized Identification Reference
System. It was published in four newspapers of
general circulation on January. Petitioner filed the
instant petition against respondents, on the grounds
that:
1. it is a usurpation of the power of Congress to
legislate,
2. it impermissibly intrudes on our citizenry’s
protected zone of privacy.
ISSUE:
• Whether there is a violation of the Right to Privacy
as enshrined in the Bill of Rights.
HELD:
• The essence of privacy is the “right to be left alone.”
The right to privacy as such is accorded recognition
independently of its identification with liberty; in
itself, it is fully deserving of constitutional
protection.
• The Court prescind from the premise that the right
to privacy is a fundamental right guaranteed by the
Constitution, hence, it is the burden of government
to show that A.O. No. 308 is justified by some
compelling state interest and that it is narrowly
drawn. A.O. No. 308 is predicated on two
considerations:
1. the need to provides our citizens and foreigners
with the facility to conveniently transact business
with basic service and social security providers and
other government instrumentalities and ;
2. the need to reduce, if not totally eradicate,
fraudulent transactions and misrepresentations by
persons seeking basic services.
It is debatable whether the interests are compelling
enough to warrant the issuance of the said order.
The broadness, vagueness, and overbreadth of A.O.
No. 308 which if implemented will put our people’s
right to privacy in clear and present danger. In the
case at bar, the threat comes from which by issuing
A.O. No. 308 pressures the people to surrender their
privacy by giving information about themselves on
the pretext that it will facilitate delivery of basic
services.
Petition is granted. A.O. No. 308 is unconstitutional.
ILUSIO VS BILDNER
• The Supreme Court expressed the view that the
constitutional right of privacy may be violated if the
court will force a person to let other people have
access to him
POLLO VS CONSTANTINO-DAVID
FACTS:
• An anonymous letter-complaint was received by the
respondent Civil Service Commission Chairperson
alleging that an officer of the CSC has been
lawyering for public officials with pending cases in
the CSC. Chairperson David immediately formed a
team with background in information technology
and issued a memorandum directing them “to back
up all the files in the computers found in the [CSC-
ROIV] MamamayanMuna (PALD) and Legal
divisions.”
• The team proceeded at once to the office and backed
up all files in the hard disk of computers at the
PALD and the Legal Services Division. Within the
same day, the investigating team finished the task. It
was found that most of the files copied from the
35
computer assigned to and being used by the
petitioner were draft pleadings or letters in
connection with administrative cases in the CSC and
other tribunals. Chairperson David thus issued a
Show-Cause Order requiring the petitioner to submit
his explanation or counter-affidavit within five days
from notice.
• Petitioner denied that he is the person referred to in
the anonymous letter-complaint. He asserted that he
had protested the unlawful taking of his computer
done while he was on leave, and that the files in his
computer were his personal files and those of his
relatives and associates, and that he is not authorize
the activities as they are in violation of his
constitutional right to privacy and protection against
self-incrimination and warrantless search and
seizure. Also, the files/documents copied from his
computer without his consent are inadmissible as
evidence, being “fruits of a poisonous tree.”
• The CSC found prima facie case against the
petitioner and charged him with Dishonesty, Grave
Misconduct, Conduct Prejudicial to the Best Interest
of the Service and Violation of R.A. No. 6713 (Code
of Conduct and Ethical Standards for Public
Officials and Employees). On 24 July 2007, the
CSC issued a Resolution finding petitioner GUILTY
of the same merits and meted the penalty of
DISMISSAL FROM THE SERVICE with all its
accessory penalties. This Resolution was also
brought to the CA by herein petitioner.
• By a Decision dated 11 October 2007, the CA
dismissed the petitioner’s petition for certiorari after
finding no grave abuse of discretion committed by
respondents CSC officials. His motion for
reconsideration having been denied by the CA,
petitioner brought this appeal before the Supreme
Court.
Issue: Whether or not the search conducted and the copying of
petitioner’s files without his knowledge and consent lawful?
Held:
• Yes. The right to privacy has been accorded
recognition in this jurisdiction as a facet of the right
protected by the guarantee against unreasonable
search and seizure under Section 2, Article III of the
1987 Constitution. The constitutional guarantee is
not a prohibition of all searches and seizures but
only of “unreasonable” searches and seizures.
• Applying the analysis and principles announced in
O’Connor and Simons for warrantless searches
involving public employees for work related reasons
to the case at bar, we now address the following
questions: (1) Did petitioner have a reasonable
expectation of privacy in his office and computer
files? (2) Was the search authorized by the CSC
Chair reasonable in its inception and scope?
• The petitioner had no reasonable expectation of
privacy in his office and computer files for he failed
to prove that he had an actual expectation of privacy
either in his office or government-issued computer
which contained his personal files.
• He did not allege that he had a separate enclosed
office which he did not share with anyone, or that
his office was always locked and not open to other
employees or visitors. He did not use passwords nor
adopted any means to prevent access by others of
his computer files. The CSC also implemented a
policy which implies on-the-spot inspections may be
done to ensure that the computer resources were
used only for such legitimate business purposes.
• The search authorized by the respondent CSC Chair
was reasonable since it was conducted in connection
with investigation of work-related misconduct. A
search by a government employer of an employee’s
office is justified when there are reasonable grounds
for suspecting that it will turn up evidence that the
employee is guilty of work-related misconduct.
• Even conceding for a moment that there is no such
administrative policy, there is no doubt in the mind
of the Commission that the search of Pollo’s
computer has successfully passed the test of
reasonableness for warrantless searches in the
workplace. It bears emphasis that the Commission PROTECTION OF PRIVACY UNDER RULES AND
pursued the search in its capacity as a government STATUTES
employer and that it was undertaken in connection
with an investigation involving a work-related The Revised Penal Code makes a crime:
misconduct, one of the circumstances exempted
from the warrant requirement. The nature of the - the violation of secrets by an officer
imputation was serious, as it was grievously
disturbing. If, indeed, a CSC employee was found - revelation of trade and industrial secrets
to be furtively engaged in the practice of
- trespass to dwelling
“lawyering” for parties with pending cases before
the Commission would be a highly repugnant
The Rules of Court
scenario, then such a case would have shattering
repercussions. It is settled that a court or an - provisions on privileged communications
administrative tribunal must not only be actually
impartial but must be seen to be so, otherwise the SPECIAL LAWS
general public would not have any trust and
confidence in it. Considering the damaging nature of • ◦ Anti Wiretapping Law
the accusation, the Commission had to act fast, if
only to arrest or limit any possible adverse • ◦ Secrecy of Bank Deposits Act
consequence or fall-out.
• ◦ Intellectual Property Code
• Thus, petitioner’s claim of violation of his
constitutional right to privacy must necessarily fail. • violation of the constitutional right to privacy
His other argument invoking the privacy of
communication and correspondence under Section that causes damage to another makes the
3(1), Article III of the 1987 Constitution is also
untenable considering the recognition accorded to actor liable under Art. 32, NCC
certain legitimate intrusions into the privacy of
• The Rules on the Writ of Habeas Data issued by the
employees in the government workplace under the
Supreme Court likewise protects the right to privacy
aforecited authorities. We likewise find no merit in
his contention that O’Connor and Simons are not
• Congress passed RA NO 10173 otherwise known as
relevant because the present case does not involve a
the “Data Privacy Act of 2012”
criminal offense like child pornography. As already
mentioned, the search of petitioner’s computer was
FACETS OF PRIVACY
justified there being reasonable ground for
suspecting that the files stored therein would yield PRIVACY IN THE CONSTITUTIONAL SPHERE:
incriminating evidence relevant to the investigation
being conducted by CSC as government employer 1. Privacy in a physical sense
of such misconduct subject of the anonymous
complaint. This situation clearly falls under the 2. Privacy in an informational sense
exception to the warrantless requirement in
administrative searches defined in O’Connor. 3. Proprietary privacy
4. Privacy in a decisional sense
BASIS OF LIABILITY FOR DAMAGES
36
VIOLATION OF RIGHT TO PRIVACY THAT
CAUSES DAMAGE TO ANOTHER MAKES THE
ACTOR LIABLE:
- Under Article 32 of the Civil Code
- Constitution
- Deprivation of due process
- Violation of the right against
unreasonable searches and seizure
- Privacy of communication and
correspondence
VIOLATION OF THE RIGHT TO PRIVACY AS
INDEPENDENT TORT
DEVELOPMENT AS TORT
right to privacy is an injury to the feelings
and sensibilities of the party.
Purely personal in nature and may be invoked only by the
person whose privacy is claimed to have been violated.
◦ May be waived
◦ ceases upon the death of the person.
RATIONALE FOR PRIVACY
- It covers many aspects of a person’s life
- It protects solitude
- Allows independence
- Encompasses right to self-determination
OPINIONS REJECTING THE RIGHT TO PRIVACY
• It should be noted, however, that there are those
who do not recognize the right to privacy as an
independent right
• In England, the right to privacy is not recognized
• Others are reluctant to recognize the right to privacy
because they believe that the interest of free speech
and the importance of disseminating the truth about
things and people weigh heavily against the invasion
of privacy
• Observer of the social scene and Justice Romero
noted that the word privacy is not even in the
dictionary of Filipinos
• The concept and practice of privacy are missing
from conventional Filipino life.

The development of violation of right to privacy as tort
started in the United States with the seminal article of
Warren and Brandeis published in Harvard Law Journal
in 1890 entitled “Right to Privacy.”
In 1960, another influential article was published
regarding privacy, that is, the article of Dean Prosser
which analyzed different cases involving privacy and
classified them into four types of invasion namely:
◦ intrusion upon plaintiff’s seclusion or
solitude
◦ public disclosure of private
embarrassing facts
◦ publicity that places one in a bad light
◦ appropriation, for the defendant’s
advantage of the plaintiff’s name or likeness.
PERSONS ENTITLED TO RELIEF
The right to privacy can be invoked only by
natural persons because the basis of the
- Central to dignity and individuality or personhood
• Many Filipinos believe that the privacy is an
unnecessary imposition
- Indispensable to a sense of autonomy
STANDARD USED IN DETERMINING TORT
NATURAL LAW JUSTIFICATION
LIABILITY
• Each is entitled to a liberty of choice as to his
• The standard to be applied in determining if there
manner of life, and neither an individual nor the
was violation of the right is that of a person of
public has the right to arbitrarily take away from
ordinary sensibilities. It is relative to customs of
him his liberty
time and place and is determined by the norm of an
ordinary person.
• Publicity in one instance and privacy in the other is
each guaranteed. If personal liberty embraces the
CLASSIFICATION OF TORT OF VIOLATION OF
right of publicity, it no less embraces the correlative
THE RIGHT TO PRIVACY
right of privacy
• The CA explained that the right to privacy, in
LIBERTARIAN JUSTIFICATION
determining if there is cause of action for damages
• In John Stuart Mill’s work “On Liberty,” the is when
appropriately private sphere is the domain of what
– There exists an unwarranted invasion of
he termed as “self-regarding” and “purely personal”
such right
conduct.
– Whether it may be protected by injunctive
• Accdg. to Mill, people should be left alone if the
relief
conduct is self-regarding
– Right to be left alone
37
 • - live a life of seclusion
• - free from unwarranted interference by
the public
• - protected from any wrongful intrusion
FOUR TYPES OF VIOLATION OF PRIVACY
RECOGNIZED IN OUR JURISDICTION:
- intrusion
- publication of private facts
- making one appear before the public in an objectionable
false light
- commercial appropriation of likeness of another
INTRUSION
◦ protect a person's sense of locational
and psychological privacy
◦ forms of intrusion:
▪ prying into the privacy of another's
residence (Art. 26 (a), NCC)
▪ criminal trespass (Art. 280, RPC)
INTRUSION IN PUBLIC PLACES
• Generally, there is no invasion of the
right to privacy when a journalist
records, photographs, or writes about
something that occurs in public places.
Except: when such constitutes
harassment or overzealous shadowing.
PERSONS PROTECTED:
- The law protects everyone, not just public figures
INTRUSION AND FREEDOM OF THE PRESS
- The Constitution protects freedom of the press
- Integral to such right is the right to be freely
involved in newsgathering
ISSUE:
- If the story concerns a matter of public interest, the
question becomes whether its newsworthiness outweighs the
privacy interest of the individual plaintiff
INTRUSION IN ADMINISTRATIVE INVESTIGATION
RULING:
- There is no intrusion when an employer investigates
its employee or when a school investigates its
student.
- Investigation may cover an alleged offense
committed outside school premises
ANGELES VS. SISON
FACTS:
• In November 1975, the petitioner Jose Angeles, a
professor of the Institute of Technology of the Far
Easter University file an administrative case against
his twostudents: Edgardo Picar and Wilfredo
Patawaran before the office of Gilberto G.Mercado
• Dean of the Institute for allegedly assaulting him at
the Oak Barrel Restaurant ocated outside the
campus.Dean Mercado, taking action on the
complaint filed by Angeles, immediately created a
committee headed by him to investigate the
complaint.
• The two respondents, Picar and Patawaran
questioned the authority of Mercado and his
committee to conduct an investigation on the basis
of jurisdiction since the incident happened outside
the premises of the university campus. The
respondents filed before the Court of First Instance
38
of Manila a complaint with petition for issuance of
writ of preliminary injunction to restrain the
petitioners from proceeding with the administrative
investigation for which the judge granted by issuing
a decision perpetually enjoining the petitioners from
further proceeding with the administrative
investigation
• Whether or not the school through its duly
authorized representative has
the jurisdiction to investigate its student or students f
or an alleged misconduct committedoutside the
school premises and beyond school hours?
• Yes. A college or any school for that matter, has a
dual responsibility to its students. One is to provide
opportunities for learning and the other is to help
them growand develop into mature, responsible,
effective and worthy citizens of the community.
Discipline is one of the means to carry out the
second responsibility.
• The
judge correctly stated that the general rule is that th
e authority of the school is co-extensive with its
territorial jurisdiction, or its school grounds, so that
any action takenfor acts committed outside the
school premises should, in general, be left to the
policeauthorities, the courts of justice, and the
family concerned.
• However, this rule is not rigid or one without
exceptions. It is the better view that there are
instances when the school might be called upon to
exercise its power over its student or students for
acts committed outside the school and beyond
school hours in the following:a) In cases of
violations of school policies or regulations
occurring in connection with a school sponsored
activity off-campus; or b) In cases where the
misconduct of the student involves his status as a
student or affects the good name or reputation of the
 school. There can be no doubt that the establishment
of an educational institution requires rules and
regulations necessary for the maintenance of an
orderly educational program and the creation of an
educational environment conducive to learning.
Such rules andregulations are equally necessary for
the protection of the students, faculty, and property.
INTRUSION IN COMMON CARRIERS
- Common carriers are required by law to exercise
extraordinary diligence in ensuring the safety of its
passengers. Consequently, it has the duty to make
sure that no dangerous objects are brought inside the
vehicle
NOCUM VS LAGUNA TAYABAS BUS COMPANY
FACTS:
• Appellee (Nocum), who was a passenger in
appellant's (Laguna Tayabas Bus Co.) Bus No. 120
then making a trip within the barrio of Dita,
Municipality of Bay, Laguna, was injured as a
consequence of the explosion of firecrackers,
contained in a box, loaded in said bus. A total of 37
passengers were injured. The bus conductor testified
that the box belonged to a passenger whose name he
does not know and who told him that it contained
miscellaneous items and clothes. He also said that
from its appearance there was no indication at all
that the contents were explosives or firecrackers.
Neither did he open the box because he just relied
on the word of theowner.
• Dispatcher Nicolas Cornista added that they were
not authorized to open the baggages of passengers
because instruction from the management was to
call the police if there were packages containing
articles which were against regulations. The trial
court's decision is that appellant(LTBC) did not
observe the extraordinary or utmost diligence of a
very cautious person as required by the articles
1733, 1755, & 1756 of the Civil Code. Hence, this
case.
ISSUE:
• Whether or not Laguna Tayabas Bus Co. failed to
exercise extraordinary diligence.
RULING: NO
• NO. Article 1755 provides: "A common carrier is
bound to carry the passengers safely as far as human
care and foresight canprovide, using the utmost
diligence of very cautious persons, with due regard
for all the circumstances."
• Fairness demands that in measuring a common
carrier's duty towards its passengers, allowance must
be given to the reliance that should be reposed on
the sense of responsibility of all the passengers in
regard to their common safety. It is to be presumed
that a passenger will not take with him anything
dangerous to the lives and limbs of his co-
passengers, not to speak of his own. Not to be
lightly considered must be the right to privacy to
which each passenger is entitled. He cannot be
subjected to any unusual search, when he protests
the innocuousness of his baggage and nothing
appears to indicate the contrary, as in the case at bar.
In other words, inquiry may be verbally made as to
the nature of a passenger's baggage when such is not
outwardly perceptible, but beyond this,
constitutional boundaries are already indanger of
being transgressed. Since We hold that appellant has
succeeded in rebutting the presumption of
negligence by showing that it has exercised
extraordinary diligence for the safety of its
passengers, "according to the circumstances of the
(each) case", We deem it unnecessary to rule
whether or not there was any fortuitous event in this
case. The appealed judgment of the trial court is
reversed and the case is dismissed.
Discrimination
Different forms of discrimination are expressly prohibited
under the existing laws in this jurisdiction. Public policy
abhors discrimination — a policy that is reflected in our
Constitution and statutes. (Sec- tion 1, Art.XIII and Article 19
39
of the New Civil Code).International law, which springs from
general principles of law likewise proscribes discrimination.
Among the treaties that can be invoked are the Uni- versal
Declaration of Human Rights, the International Convention on
Economic, Social and Cultural Rights, the International
Convention on the Elements of All Forms of Racial
Discrimination, the Convention against Discrimination in
Education and the Convention (No. 111) Concerning
Discrimination in Respect of Employment and Occupation.
(International School Alliance of Educators vs. Quisumbing,
G.R. No. 128846, June 1, 2000).
Thus, existing statutes recognize different forms of
discrimination. The Labor Code expressly disallows
discrimination of women in the workplace (Article 135, Labor
Code); the Magna Carta for Disa- bled Persons likewise
expressly prohibits discrimination of disabled persons;
Republic Act No. 8504 makes one liable for discrimination of
“AIDS” victims (Sections 35-42); and Republic Act No. 8972
prohibits discrimination of solo parents (Section 7, Solo
Parents Act).
Discrimination in Labor
The law on discrimination against women is reinforced by
Article 135 of the Labor Code. The said statute states that it
shall be unlawful for any employer to discriminate against any
woman employee with respect to terms and conditions of
employment solely on account of her sex. The law identifies
two examples of acts of discrimination:
a) Payment of a lesser compensation, including wage, salary or
other form of remuneration and fringe benefits to a female
employee as against a male employee, for work of value; and
b) favoring a male employee over female employee with
respect to promotion, training opportunities, study and
scholarship grants solely on account of their sexes.
Discrimination of Disabled
• Discrimination of disabled persons is expressly
prohibited in Republic Act No. 7277 otherwise
known as “Magna Carta for Disabled Persons.”
• Section 32 provides that no entity, whether public or
private shall discriminate against a qualied disabled
person by reason of dis- ability in regard to job
application procedures, the hiring, promotion, or
discharge of employees, employee compensation,
job training, and other terms, conditions, and
privileges of employment. The following acts are
identifed to be discriminatory:
a) Limiting, segregating or classifying a disabled job
applicant in such a manner that adversely affects his
work opportunities;
b) Using qualification standards, employment tests
or other selection criteria that screen out or tend to
screen out a disabled person unless such standards,
tests or other selection criteria are shown to be job-
related for the position in question and are consistent
with business necessity;
c) Utilizing standards, criteria, or methods of
administration that:
1) Have the effect of discrimination on the basis of
disability; or
2) perpetuate the discrimination of others who are
subject to common administrative control.
d) Providing less compensation, such as salary,
wage,
• or other forms of remuneration and fringe benefits,
to a qualified disabled employee, by reason of his
disability, than the amount to which a non-disabled
person performing the same work is entitled;
• e) Favoring a non-disabled employee over a
qualified disabled employee with respect to
promotion, training opportuni- ties, study and
scholarship grants, solely on account of the latter’s
disability;
• f) Re-assigning or transferring a disabled employee
to a job or position he cannot perform by reason of
his disability;
• g) Dismissing or terminating the services of a
disabled employee by reason of his disability unless
the employer can prove that he impairs the
satisfactory performance of the work involved to the
prejudice of the business entity; Provided, however,
That the employer rst sought to provide reasonable
accommodations for disabled persons;
• h) Failing to select or administer in the most
effective manner employment tests which accurately
re ect the skills, aptitute or other factor of the
disabled applicant or employee that such tests
purports to measure, rather than the impaired
sensory, manual or speaking skills of such applicant
or employee, if any; and
• i) Excluding disabled persons from membership in
labor unions or similar organizations.
• The following acts constitute acts of discrimination
under Section 36:
• 1) denying a disabled person, directly or through
contractual, licensing, or other arrangement, the
opportunity to participate in or bene t from the
goods, services, facilities, privileges, advantages, or
accommodations of an entity by reason of his
disability;
• 2) affording a disable person, on the basis of his
disabilty, directly or through contractual, licensing
or other arrangement, with the opportunity to
participate in or bene t from a good or service,
facility, privilege, advantage, or accommodation that
is not equal to that afforded to other able-bodied
persons; and
• 3) providing a disabled person, on the basis of his
dis- ability, directly or through contractual,
licensing, or other arrangement, with a good service,
facility, advantage, privilege, or accommodation that
is different or separate from that provided to other
able-bodied persons unless such action is necessary
to provide the disable person with a good service,
facility, advantage, privilege, or accommodation, or
40
other opportunity that is as effective as that provided
to others.
Section 34 provides that “it shall be considered discrimina-
tion for franchisees or operators and personnel of sea, land, and
air transportation facilities to charge higher fare or to refuse to
convey a passenger, his orthopedic devices, personal effects,
and merchandize by reason of his disability.”
Section 35 of the law enumerates all the establishments that are
considered public accommodations or services. Examples of
such establishments are hotels, inns, motel, restaurants, theater,
place of gathering like a convention center, bakery, grocery
store, bank, barbershop, museum, park, schools, or place of
exercise.
SEXUAL HARASSMENT
• In the Philippines, the special law on sexual
harassment, Repub- lic Act No. 7877 (otherwise
known as the “Anti-Sexual Harassment Act of
1995”) was passed only in February, 1995. It
contains the fol- lowing declaration of policy:
• Sec. 2. Declaration of Policy. — The State shall
value the dignity of every individual, enhance the
development of its human resources, guarantee full
respect for human rights, and uphold the dignity of
workers, employees, applicants for employment,
students or those undergoing training, instruction or
education. Towards this end, all forms of sexual
harassment in the employ- ment, education or
training environment are hereby declared unlawful.
Who can commit sexual harasement?
Section 3 of R.A. No. 7877 provides that work, education or
training-related sexual harassment is committed by an
employer, employee, manager, supervisor, agent of the
employer, teacher, instructor, professor, coach, trainor, or any
other person who, having authority, in uence or moral
ascendancy over another in a work or training or education
environment.
Principal by Inducement
Any person who directs or induces another to commit any act
of sexual harassment as herein defined, or who cooperates in
the commission thereof by another without which it would not
have been committed, shall also be held liable under the Act.
(Sec. 3).
Employer or Head of Office
• “the employer or head of office, educational or
training institution shall be solidarily liable for
damages arising from the acts of sexual harassment
committed in the employment, education or training
environment if the employer or head of
office, educational or training institution is informed
of such acts by the offended party and no immediate
action is taken thereon.”
How committed
Sexual harassment is committed whenever any of the persons
mentioned in paragraph (a) above “demands, requests or
otherwise requires any sexual favor from the other, regardless
of whether the demand, request or requirement for submission
is accepted by the object of said act.”
Persons in SEC. A are the following:
employer, employee, manager, supervisor, agent of the
employer, teacher, in- structor, professor, coach, trainor, or any
other person who, having authority, in uence or moral
ascendancy over another in a work or training or education
environment
Section 3 (a) provides that in a work-related or employment
environment, sexual harassment is committed when:
(1) The sexual favor is made as a condition in the hiring or in
the employment, re-employment or continued employment of
said individual, or in granting said individual favorable
compensation, terms, conditions, promotions, or privileges; or
the refusal to grant the sexual favor results in limiting,
segregating or classifying the employee which in any way
would discriminate, deprive or diminish employment
opportunities or otherwise adversely affect said employee;
(2) The above acts would impair the employee’s rights or
privileges under existing labor laws; or
(3) The above acts would result in an intimidating, hostile, or
offensive environment for the employee.
On the other hand, sexual harassment in an education or
training environment is committed under Section 3(b):
(3) When the sexual favor is made a condition to the giving of
a passing grade, or the granting of honors and scholar- ships or
the payment of a stipend, allowance or other benefits,
privileges, or considerations; or
(4) When the sexual advances result in an intimidating, hostile
or offensive environment for the student, trainee or apprentice.
Quid pro quo cases
Sexual favors are elicited in return for something else.
Examples:
1. sexual favor is made as a condition in the hiring or in the
employment, re-employment or continued employment of said
individual, or in granting said individual favorable
compensation, terms, conditions, promotions, or privileges
2. the sexual favor is made a condition to the giving of a
passing grade, or the granting of honors and scholarships or the
payment of a stipend, allowance or other bene ts, privileges or
considerations.
3. the refusal to grant sexual favor “would impair the
employee’s right or privileges under existing labor law.”
Hostile environment cases
Hostile environment cases, on the other hand, involve the
allegation that employees or students work or study in
offensive or abusive environment.
Section 3. For the purpose of these Rules, the administrative
offense of sexual harassment is an act, or a series of acts,
involving any unwelcome sexual advance, request or demand
41
for a sexual favor, or other verbal or physical behavior of a
sexual nature, committed by a government employee or offcial
in a work-related, training or education related environment of
the person complained of.
Work-related sexual harassment is committed under the
following circumstances:
(1) submission to or rejection of the act or series of acts is used
as a basis for any employment decision (including, but not
limited to, matters related to hiring, promotion, raise in salary,
job security, benefits and any other personnel action) affecting
the applicant/employee; or
(2) the act or series of acts have the purpose or effect of
interfering with the complainants’ work performance, or
creating an intimidating, hostile or offensive work
environment; or
(3) the act or series of acts might reasonably be expected to
cause discrimination, insecurity, discomfort, offense or
humiliation to a complainant who may be a co-employee,
applicant, customer, or ward of the person complained of.
Education or training-related sexual harassment is committed
against one who is under the actual or constructive care,
custody or supervision of the offender, or against one whose
education, training, apprenticeship, internship or tutorship is
directly or constructively entrusted to, or is provided by, the
offender, when:
(1) submission to or rejection of the act or series of acts is used
as a basis for any decision affecting the com- plainant,
including, but not limited to, the giving or a grade, the granting
of honors or a scholarship, the payment of a stipend or
allowance, or the giving of any bene t, privilege or
consideration.
(2) the act or series of acts have the purpose or effect of
interfering with the performance, or creating an intimidating,
hostile or offensive academic environment of the complainant;
or
(3) the act or series of acts might reasonably be expected to
cause discrimination, insecurity, discomfort, offense or
humiliation to a complainant who may be a trainee, apprentice,
intern, tutee or ward of the person complained of.
Section 4. Sexual harassment may take place:
1. in the premises of the workplace or of ce or of the school or
training institution;
2. in any place where the parties were found as a result of work
or education or training responsibilities or relations;
3. at work or education or training-related social func- tions;
4. while on of cial business outside the of ce or school or
training institution or during work or school or training-related
travel; 5. at of cial conferences, fora, symposia, or training
sessions; or
6. by telephone, cellular phone, fax machine or electronic
mail.
Section 5. The following are illustrative forms of sexual
harassment:
(a) Physical
• Malicious Touching,
• Overt sexual advances,
• Gestures with lewd insinuation.
(b) Verbal, such as but not limited to requests or demands
for sexual favors, and lurid remarks,
(c) Use of objects, pictures or graphics, letters or written notes
with sexual underpinnings,
(d) Other forms analogous to the foregoing.
It is readily noticeable that the presence of sexual advances
Discrimination
Requisites:
(1) that he or she was subjected to sexual advances, requests
for sexual favors, or other verbal or physical conduct of sexual
nature,
(2) that this conduct was unwelcome, and
(3) that the conduct was sufficiently severe or pervasive to
alter the conditions of the victim’s employment and create an
abusive working environment.
Standard of Conduct
the determination of the standard to be used in determining if
the plaintiff found the environment offensive. The weight of
authority is to use the standard of a “reasonable man” that is
used in negligence cases. Under this view, the environment is
hostile if a person of ordinary prudence would not have been
engaged in the allegedly harassing conduct.
DR. RICO S. JACUTIN v PEOPLE OF THE PHILIPPINES
G.R. No. 140604, March 6, 2002
Facts:
Juliet Q. Yee, then a 22-year old fresh graduate of nursing,
averred that on 28 November 1995 her father accompanied her
to the office of petitioner at the City Health Office to seek
employment. Juliet’s father and petitioner were childhood
friends. Juliet was informed by the doctor that the City Health
Office had just then filled up the vacant positions for nurses
but that he would still see if he might be able to help her.
The following day, 29 November 1995, Juliet and her father
returned to the City Health Office, and they were informed by
petitioner that a medical group from Texas, U.S.A., was
coming to town in December to look into putting up a clinic in
Lapasan, Cagayan de Oro, where she might be considered. On
01 December 1995, around nine o’clock in the morning, she
and her father went back to the office of petitioner. The latter
informed her that there was a vacancy in a family planning
project for the city and that, if she were interested, he could
interview her for the job. Petitioner then started putting up to
her a number of questions. When asked at one point whether or
not she already had a boyfriend, she said “no.” Petitioner
suggested that perhaps if her father were not around, she could
afford to be honest in her answers to the doctor. The father,
42
taking the cue, decided to leave. Petitioner then inquired
whether she was still a virgin, explaining to her his theory on
the various aspects of virginity. He “hypothetically” asked
whether she would tell her family or friends if a male friend
happened to intimately touch her. Petitioner later offered her
the job where she would be the subject of a “research”
program. She was requested to be back after lunch.
While driving, petitioner casually asked her if she already took
her bath, and she said she was so in a hurry that she did not
find time for it. Petitioner then inquired whether she had
varicose veins, and she said “no.” Petitioner told her to raise
her foot and lower her pants so that he might confirm it. She
felt assured that it was all part of the research. Petitioner still
pushed her pants down to her knees and held her thigh. He put
his hands inside her panty until he reached her pubic hair.
Surprised, she exclaimed “halaka!” and instinctively pulled her
pants up. Petitioner then touched her abdomen with his right
hand saying words of endearment and letting the back of his
palm touch her forehead. He told her to raise her shirt to check
whether she had nodes or lumps. She hesitated for a while but,
eventually, raised it up to her navel. Petitioner then fondled her
breast. Shocked at what petitioner did, she lowered her shirt
and embraced her bag to cover herself, telling him angrily that
she was through with the research. He begged her not to tell
anybody about what had just happened. Before she alighted
from the car, petitioner urged her to reconsider her decision to
quit. He then handed over to her P300.00 for her expenses.
Petitioner contradicted the testimony of Juliet Yee. He claimed
that on 28 November 1995 he had a couple of people who went
to see him in his office, among them, Juliet and her father, Pat.
Justin Yee, who was a boyhood friend.When it was their turn
to talk to petitioner, Pat. Yee introduced his daughter Juliet
who expressed her wish to join the City Health Office.
Petitioner replied that there was no vacancy in his office,
adding that only the City Mayor really had the power to
appoint city personnel. On 01 December 1995, the afternoon
when the alleged incident happened, he was in a meeting with
the Committee on Awards in the Office of the City Mayor. On
04 December 1995, when Juliet said she went to his office to
return the P300.00, he did not report to the office for he was
scheduled to leave for Davao at 2:35 p.m. to attend a hearing
before the Office of the Ombudsman for Mindanao. He
submitted in evidence a photocopy of his plane ticket. He
asserted that the complaint for sexual harassment, as well as all
the other cases led against him by Vivian Yu, Iryn Salcedo,
Mellie Villanueva and Pamela Rodis, were but forms of
political harassment directed at him.
Ruling:
The contentions of petitioner are not meritorious. Section 3 of
Republic Act 7877 provides:
Petitioner was the City Health Officer of Cagayan de Oro City,
a position he held when complainant, a newly graduated nurse,
saw him to enlist his help in her desire to gain employment. He
did try to show an interest in her plight, her father being a
boyhood friend, but nding no opening suitable for her in his
office, he asked her about accepting a job in a family planning
research project.
While the City Mayor had the exclusive prerogative in
appointing city personnel, it should stand to reason,
nevertheless, that a recommendation from petitioner in the
appointment of personnel in the municipal health of- ce could
carry good weight. Indeed, petitioner himself would appear to
have conveyed, by his words and actions, an impression that he
could facilitate Juliet’s employment. Indeed, petitioner would
not have been able to take undue liberalities on the person of
Juliet had it not been for his high posi- tion in the City Health
Of ce of Cagayan de Oro City. The ndings of the
Sandiganbayan were bolstered by the testimony of Vivian Yu,
petitioner’s secretary between 1979 to 1994, of Iryn Lago
Salcedo, Public Health Nurse II, and of Farah Dongallo y
Alkuino, a city health nurse, all of whom were said to have
likewise been victims of perverse behavior by petitioner.
FALSE LIGHT
The interest to be protected in this tort is the interest of the
individual in not being made to appear before the public in an
objectionable false light or false position.
False light V. Defamation
False light – The gravamen of the claim is the
embarrassment of a person in being made into
something he is not.
Defamation - The gravamen of the claim is
reputational harm.
False light cases – (as in publication of private
facts), the statement should be actually made public.
Publication in defamation – is satisfied if a letter is
sent to a third person.
False light – the defendant may still be held liable
even if the statements tell something good about the
plaintiff.
Defamation– what is published lowers the esteem in
which the plaintiff is held.
MANUEL LAGUNZAD, petitioner, vs.MARIA SOTO
VDA.DE GONZALES and THE COURT OF
APPEALS, respondents.G.R. No. L-32066 August 6, 1979
FACTS:
Sometime in August, 1961, petitioner
Manuel Lagunzad, began the production of a movie
entitled "The Moises Padilla Story". It was based
mainly on the copyrighted but unpublished book of
Atty. Ernesto Rodriguez, Jr., entitled "The Long
Dark Night in Negros" subtitled "The Moises Padilla
Story".
The book narrates the events which culminated in
the murder of Moises Padilla who was then a
mayoralty candidate of the Nacionalista Party for
the Municipality of Magallon, Negros Occidental,
during the November, 1951 elections. Governor
Rafael Lacson, a member of the Liberal Party then
in power and his men were tried and convicted for
that murder. In the book, Moises Padilla is portrayed
as "a martyr in contemporary political history."
Although the emphasis of the movie was on the
public life of Moises Padilla, there were portions
which dealt with his private and family life
including the portrayal in some scenes, of his
43
mother, Maria Soto Vda. de Gonzales, private
respondent herein, and of one "Auring" as his
girlfriend.
On October 5, 1961, Mrs. Nelly Amante, half-sister
of Moises Padilla, for and in behalf of her mother,
private respondent, demanded in writing for certain
changes, corrections and deletions in the movie.
On the same date, October 5, 1961, after some
bargaining, the petitioner and private respondent
executed a “Licensing Agreement” where the
petitioner agreed to pay the private respondent the
sum of P20,000.00 payable without need of further
demand, as follows: P5,000.00 on or before Oct. 10,
1961; P10,000.00 on or before Oct. 31, 1961; and
P5,000.00 on or before November 30, 1961. Also
the Licensor (private respondent) grants authority
and permission to Licensee (Petitioner) to exploit,
use, and develop the life story of Moises Padilla for
purposes of producing the PICTURE, and in
connection with matters incidental to said
production, such as advertising and the like, as well
as authority and permission for the use of
LICENSOR's name in the PICTURE and have
herself portrayed therein, the authority and
permission hereby granted, to retroact to the date
when LICENSEE first committed any of the acts
herein authorized.
After its premier showing on October 16, 1961, the
movie was shown in different theaters all over the
country.
Because petitioner refused to pay any
additional amounts pursuant to the Agreement, on
December 22, 1961, private respondent instituted
the present suit against him praying for judgment in
her favor ordering petitioner 1) to pay her the
amount of P15,000.00, with legal interest from the
filing of the Complaint; 2) to render an accounting
of the proceeds from the picture and to pay the
corresponding 2-1/2% royalty therefrom; 3) to pay
attorney's fees equivalent to 20% of the amounts
claimed; and 4) to pay the costs.
 Petitioner contended in his Answer that the
episodes in the life of Moises Padilla depicted in the
movie were matters of public knowledge and was a
public figure; that private respondent has no
property right over those incidents; that the
Licensing Agreement was without valid cause or
consideration and that he signed the same only
because of the coercion and threat employed upon
him. As a counterclaim, petitioner sought for the
nullification of the Licensing Agreement as it
constitutes an infringement on the constitutional
right of freedom of speech and of the press.
Both the trial court and the Court of Appeals
ruled in favour of the private respondent.
ISSUES: Whether or not private respondent have any
property right over the life of Moises Padilla since the
latter was a public figure.
Yes. While it is true that petitioner had purchased
the rights to the book entitled "The Moises Padilla
Story," that did not dispense with the need for prior
consent and authority from the deceased heirs to
portray publicly episodes in said deceased's life and
in that of his mother and the members of his family.
As held in Schuyler v. Curtis,” a privilege may be
given the surviving relatives of a deceased person to
protect his memory, but the privilege exists for the
benefit of the living, to protect their feelings and to
prevent a violation of their own rights in the
character and memory of the deceased."
Being a public figure ipso facto does not
automatically destroy in toto a person's right to
privacy. The right to invade a person's privacy to
disseminate public information does not extend to a
fictional or novelized representation of a person, no
matter how public a figure he or she may be. In the
case at bar, while it is true that petitioner exerted
efforts to present a true-to-life story of Moises
Padilla, petitioner admits that he included a little
romance in the film because without it, it would be a
drab story of torture and brutality.
The tort may be committed by the media by
distorting the news report. Thus, liability may result
if film or video tape is edited in such a way that the
plaintiff is made to appear to have committed an
illegal act although he actually did not do so.
ST. LOUIS REALTY CORPORATION vs. COURT OF
APPEALS 133 SCRA 179 [1984]
COMMERCIAL APPROPRIATION OF LIKENESS
FACTS:
On December 15, 1968 St. Louis Corp. published
an advertisement with a heading “where the heart
belongs” featuring the house of Dr. Aramil but with
Arcadio and his family who is not the real owner of
the said house. Upon seeing the advertisement Dr.
Aramil wrote a letter to the Corporation stating that
there was a mix-up of residence in their
advertisement and asked the latter to reprint and
rectify it because the said advertisement humiliated
him and put him into shame as his colleagues and
friends who recognized his house were in a doubt of
his integrity, if he is just renting his house, and if his
wife is with another husband. On January 5, 1969,
St. Louis published a reprint of their advertisement
but failed to rectify it and put an apology to Dr.
Aramil. Upon seeing this Dr. Aramil decided to put
a complain against the corporation and ask for
8000php for actual damages, 20000 for moral
damages and 2000php for attorneys fee.
ISSUE: Whether St. Louis is liable to pay damages
to Dr. Aramil?
Yes. The case falls under Article 26 which warrants
St. Louis to pay for damages. The article states that
“every person must respect the dignity, personality
privacy and peace of mind of his neighbors and
other persons”, “Prying into the privacy of another’s
residence” and “Meddling with or disturbing the
private life or family relations of another”. The
instance case violated the article when they
published an advertisement without any permission
from Dr. Aramil that his house will be featured and
Mr. Arcadio with his family depicting the
ownership. Though the acts will not constitute
44
criminal offense, a civil action may be instituted
even if no crime is involved and moral damages
may be obtained. In addition, St. Louis was grossly
negligent and bad faith is present when they mix-up
residences in their advertisement which is widely
circulated and failed to rectify and make an apology
to Dr. Aramil about the incident.
The tort of commercial appropriation of likeness has
been held to protect various aspects of an
individual’s identity from commercial exploitation:
name, likeness, achievements, identifying
characteristics, actual performances and fictitious
characters created by a performer. It was even
extended in one case to phrases and other things
which are associated with an individual.
Under this right, the unwarranted publication of a
person’s name or the unauthorized use of his
photograph or likeness for commercial purposes is
an invasion of privacy.
With respect to celebrities, however, the right of
publicity is often treated as a separate right that
overlaps but is distinct from the right of privacy. It
has been observed that celebrities are not interested
in barring any person from commercially
appropriating their likeness. They treat their names
and likeness as property and they want to control
and profit therefrom. In invasion of privacy,
damages is measured by the injury to feelings,
emotional distress, humiliation and mental anguish.
On the other hand, celebrities who file actions to
protect their right to publicity do so to protect their
economic interest. They treat their names and
likeness as property which cannot be encroached
upon by another.
The tort of commercial appropriation of likeness or
violation of the right of publicity was involved in
Simonette de los Reyes, et al. vs. Mobil Oil
Philippines, Inc. (25 CAR 2s 1089 [1978]). The
plaintiffs in the case were commercial models and
winners of beauty pageants. They agreed to lend
 their services to a project of the First Lady of the
Philippines and had their pictures taken. Later, they
discovered that their pictures were used in the
calendars of defendant corporation. The plaintiffs
sued for damages and their claim was sustained by
the Court of Appeals because of the violation of
their right to privacy.
Policy Considerations.
There are at least three policy considerations behind
the right of publicity on the part of celebrities.
First, the right of publicity vindicates the economic
interests of celebrities, enabling those whose
achievements have imbued their identities with
pecuniary value to profit from their fame.
Second, the right of publicity fosters the production
of intellectual and creative works by providing the
financial incentive for individuals to expend the
time and resources necessary to produce them.
Third, the right of publicity serves both individual
and societal interests by preventing what our legal
tradition regards as wrongful misconduct: unjust
enrichment and deceptive trade practices.
Personal Right
The right to privacy is a personal right.
Consequently, a person is entitled to enter into a
licensing agreement so that his life can be depicted
in film.
There would be invasion of privacy if person film’s
another’s life or the life of a deceased without his
consent or the consent of the relatives as the case
may be.
INTERFERENCE WITH FAMILY AND OTHER
RELATIONS
The Family Code imposes on the spouses the
obligation to live together, observe mutual love,
respect and fidelity, and render mutual help and
support. (Article 68). Interference with such
obligations may result in tort liability known as
alienation of affection. Alienation of affection
consists of depriving one spouse of the affection,
society, companionship and comfort of the other.
The gist of the tort is an interference with one
spouse’s mental attitude toward the other and the
conjugal kindness of marital relations resulting in
some actual conduct which materially affects it.
TENCHAVEZ vs. ESCAÑO G.R. No. L-19671, November
29, 1965
FACTS:
VicentaEscaño, 27, exchanged marriage vows with
Pastor Tenchavez, 32, on February 24, 1948, before
a Catholic chaplain. The marriage was duly
registered with the local civil registrar. However, the
two were unable to live together after the marriage
and as of June 1948, they were already estranged.
Vicenta left for the United Stated in 1950. On the
same year she filed a verified complaint for divorce
against Tenchavez in the State of Nevada on the
ground of “Extreme cruelty, entirely mental in
character.” A decree of divorce, “final and absolute”
was issued in open court by the said tribunal. She
married an American, lived with him in California,
had several children with him and, on 1958,
acquired American Citizenship.
On 30 July 1955, Tenchavez filed a complaint in the
Court of First Instance of Cebu, and amended on 31
May 1956, against Vicenta F. Escaño, her parents,
Mamerto and Mena Escaño whom he charged with
having dissuaded and discouraged Vicenta from
joining her husband, and alienating her affections,
and against the Roman Catholic Church, for having,
through its Diocesan Tribunal, decreed the
annulment of the marriage, and asked for legal
separation and one million pesos in damages.
Vicenta’s parents denied that they had in any way
influenced their daughter’s acts, and counterclaimed
for moral damages.
45
ISSUE: Whether the parents of Vicenta, compelled
and induced their daughter to assent to the
celebration of the latters marriage and whether it
constitutes an alienation of affection.
No. There is no evidence that the parents of Vicenta,
out of improper motives, aided and abetted her
original suit for annulment, or her subsequent
divorce; she appears to have acted independently
and being of age, she was entitled to judge what was
best for her and ask that her decisions be respected.
Her parents, in so doing, certainly can not be
charged with alienation of affections in the absence
of malice or unworthy motives, which have not been
shown, good faith being always presumed until the
contrary is proved.
“Sec. 529. Liability of Parents, Guardians or kin. —
The law distinguishes between the right of a parent
to interest himself in the marital affairs of his child
and the absence of right in a stranger to intermeddle
in such affairs. However, such distinction between
the liability of parents and that of strangers is only in
regard to what will justify interference. A parent is
liable for alienation of affections resulting from his
own malicious conduct, as where he wrongfully
entices his son or daughter to leave his or her
spouse, but he is not liable unless he acts
maliciously, without justification and from unworthy
motives. He is not liable where he acts and advises
his child in good faith with respect to his child’s
marital relations, in the interest of his child as he
sees it, the marriage of his child not terminating his
right and liberty to interest himself in, and be
extremely solicitous for, his child’s welfare and
happiness, even where his conduct and advice
suggest or result in the separation of the spouses or
the obtaining of a divorce or annulment, or where he
acts under mistake or misinformation, or where his
advice or interference are indiscreet or unfortunate,
although it has been held that the parent is liable for
consequences resulting from recklessness. He may
in good faith take his child into his home and afford
him or her protection and support, so long as he has
 not maliciously enticed his child away, or does not
maliciously entice or cause him or her to stay away,
from his or her spouse. This rule has more
frequently been applied in the case of advice given
to a
VEXATION AND HUMILIATION
The fourth paragraph of Article 26 makes one liable
for vexing or humiliating another on account of his
religious beliefs, lowly station in life, place of birth,
physical defect, or other personal condition.
Consequently, discrimination against a person on
account of his physical defect, which causes
emotional distress, may result in liability on the part
of the offending party. Sexual harassment also falls
under this category based on violation of a woman’s
right to privacy. Public humiliation due to lowly
station in life may likewise result in liability. For
example, a department store manager who searched
a person in public for no other reason than the fact
that such person looked poor will be held liable for
damages.
Social equality is not sought by the legal provision
under consideration, but due regard for decency and
propriety.
INFLICTION OF EMOTIONAL DISTRESS
Distinguished from defamation.
“Emotional distress” means any highly unpleasant
mental reaction such as extreme grief, shame,
humiliation, embarrassment, anger, disappointment,
worry, nausea, mental suffering and anguish, shock,
fright, horror, and chagrin.
Any party seeking recovery for mental anguish must
prove more than mere worry, anxiety, vexation,
embarrassment, or anger. Liability does not arise
from mere insults, indignities, threats, annoyances,
petty expressions, or other trivialities. In
determining whether the tort of outrage had been
committed, a plaintiff is necessarily expected and
required to be hardened to a certain amount of
criticism, rough language, and to occasional acts and
words that are definitely inconsiderate and unkind;
the mere fact that the actor knows that the other will
regard the conduct as insulting, or will have his
feelings hurt, is not enough
To recover for the intentional infliction of emotional
distress the plaintiff must show that:
(a) The conduct of the defendant was intentional or
in reckless disregard of the plaintiff;
(b) The conduct was extreme and outrageous;
(c) There was a causal connection between the
defendant’s conduct and the plaintiff’s mental
distress; and,
(d) The plaintiff’s mental distress was extreme and
severe
“Extreme and outrageous conduct” means
conduct that is so outrageous in character,
and so extreme in degree, as to go beyond
all possible bounds of decency, and to be
regarded as atrocious, and utterly
intolerable in civilized society. The
defendant’s actions must have been so
terrifying as naturally to humiliate,
embarrass or frighten the plaintiff.
The Supreme Court distinguished defamation from
“emotional distress” by saying that primarily, an
“emotional distress” tort action is personal in nature,
i.e., it is a civil action filed by an individual to
assuage the injuries to his emotional tranquility due
to personal attacks on his character. Emotional
distress properly belongs to the reactive harm
principle while defamation calls for the application
of the relational harm principle. The principle of
relational harm includes harm to social relationships
in the community in the form of defamation as
distinguished from the principle of reactive harm
which includes injuries to individual emotional
tranquility.
46
Republic Act No. 4200
“An act to Prohibit and Penalize Wire-Tapping and other
related violations of the privacy of communication, and for
other purposes”
• “Things to remember”It is unlawful for any person
(whether a party to the conversation or not), not
being authorized by all parties to any private
communication (this includes conversation) or
spoken word, to:
– Tap any wire or cable, or
– Using other device or arrangement to
secretly
• Overhear, intercept or record
such communication or spoken
word by using;
– Dictaphone or
dictagraph or
dectaphone or
walkie-talkie or tape
recorder (Sec. 1, 1st
paragraph)
Is the use of telephone extension punishable?
• No.
In the case of Gaanan vs IAC, telephone extension is
not one of the devices enumerated in Sec. 1 of RA 4200.
Moreover, it is the act of listening to private conversation of
another through the extension telephone is equivalent to
eavesdropping through an electronic device. Hence, it is not
punishable under RA 4200 but a civil case for damages under
Art. 26 of NCC may prosper
Article 26 of the New Civil Code
• Every person shall respect the dignity, personality,
privacy and peace of mind of his neighbors and
other persons. The following and similar acts,
 though they may not constitute a criminal offense,
shall produce a cause of action for damages,
prevention and other relief:
(1) Prying into the privacy of another's residence:
(2) Meddling with or disturbing the private life or
family relations of another;
(3) Intriguing to cause another to be alienated from
his friends;
(4) Vexing or humiliating another on account of his
religious beliefs, lowly station in life, place of birth, physical
defect, or other personal condition.
• Any person (whether a party of the conversation or
not) who knowingly possess any:
– Tape record
– Wire record
– Disc record. or
– Any other such record or copies
of any communications before or after the effective date of this
Act. (Sec. 1, paragraph 2)
Who are liable under this Act?
• Any person who records such communication not
being authorized by ALL parties of the converstion
(Sec.1, par. 1)
Admissibility of the recording
• Any person knowingly possess any recording of any
communication (Sec. 1, par. 2)
• Any person who willfully OR knowingly OR who
shall aid, permit or cause to record or to possess
such communication (Sec. 2)
Exception: Requisites
• A police officer
Presidential Decree No. 55
• Authorized by a WRITTEN ORDER of the
COURT,
– which is applied and examined under oath
or affirmation of the applicant and to
produce witness showing:
• reasonable ground for the
existence of the crimes
enumerated
• Reasonable grounds to believe
that evidence to be obtained
may sustain conviction, and
• No other means readily
available for obtaining
evidence
• Can record or obtain possession of any
communication even not authorized by ALL the
parties of the conversation
• In cases involving:
– Treason, espoinage, provoking war and
disloyalty in case of war, piracy, mutiny
in high seas, rebellion, conspiracy and
proposal to commit rebellion, inciting to
rebellion, sedition, conspiracy to commit
sedition, inciting to sedition, kidnapping,
espoinage and other offenses against
national security (Sec. 3)
• It is not admissible in evidence in any:
– Judicial
– Quasi-judicial
– Legislative, or
– Administrative hearing or investigation.
47
• It declares unlawful for ANY person, unless
authorized by the PROPER TELEPHONE
COMPANY (hence, authorization of all parties is
not needed), to install or connect or cause or induce
to be installed or connected any telephone or line
whether connecting it by wire or cable or through
any other means, with already existing telephone
duly installed in private residence.
Exception under PD 55
• Unless authorized by court in relation to Sec. 3 of
RA 4200
Other related law
• Republic Act No. 5733, punishes registered
Electronics and Communication Engineer who shall
engage in:
– Illegal wire tapping
– Employment of electronics device in
violation of privacy of another
Intrusion in Public Records
Every people has a right to information on matters of PUBLIC
CONCERN. They shall be granted access to:
-official records
-documents, and
-papers pertaining to:
*official acts,
*transactions, or
*decisions and government research data used as
basis for policy development.
This right is subject to limitations provided by law. (Sec. 7 Art.
3 of the Constitution)
Case Study
Valmonte, et. Al. vs Belmonte, Jr. (170 Scra 256)
Facts:
-Valmonte wrote a letter to Belmonte, requesting the list of
names in the BatasangPambansa (now Congress) belonging to
UNIDO and PDP-Laban who were able to secure loans
immediately before the elections
-the loan were guaranteed by Imelda Marcos
-Deputy General Counsel Tiro of the GSIS refused to furnish
since it is a confidential relationship between the borrower and
GSIS
-Valmonte filed a petition for mandamus to the SC to compel
GSIS to furnish the requested names
-Belmonte, on behalf of GSIS, invoked that the information
sought is private in nature
Issue: W/N the information requested is a matter of public
concern.
Held: Yes. GSIS is a trustee of contributions from the
government and its employees and the administrator of various
insurance programs for the benefit of the latter. Undeniably its
funds assume a public character. It is therefore the legitimate
concern of the public to ensure that these funds are managed
properly with the end in view of maximizing the benefits that
accrue to the insured government employees. Moreover, GSIS
failed to cite a law that the information requested is not
available for the public.
Take note: Matters of public concern is for the courts to
determine.
Factual problem
Atty. A sent letters to the individual justices of the First
Division of SC containing disparaging remarks concerning the
performance of their judicial functions. Due to the
contumacious character of the said letter, the First Division
referred the matter to the en banc. It was invoked that the same
is private in character and therefore covered by the privacy of
communication clause of the Constitution. Decide.
Answer
The letters has became part of the judicial record and have
become a matter of concern for the entire Court (citing In Re:
WenceslaoLaureta, 148 Scra 382). Hence, no longer covered
by the Constitutional guarantee.
Source: Principles, Comments and Cases in Constitutional Law
Vol. 2 by Rolando Suarez 2016 ed.
Intrusion in the Internet
When is there an intrusion in the internet?
-if a person is engaged in what is known as unlawful
access contemplated in RA No. 8792 or the Electronic
Commerce Act, specifically Sec. 31.
Sec. 31 of RA No. 8792
What is Lawful Access?
Access to an electronic file or an electronic signature of an
electronic data message or electronic document shall only be
authorized and enforced in favor the individual or entity having
a legal right to the possession or the use of the plain text,
electronic signature or file and solely for the authorized
pruposes. The electronic key for indentity or integrity shall not
be made available to any person or party without the consent of
the individual or entity in lawful possession or the electronic
key.
What if other person obtained access to electronic key, data
message or documents?
Sec. 32 provides he shall not convey or share the same with
any other person
What are the acts penalized?
• Hacking or cracking
– The unauthorized access into or
interference in a computer system/server
48
or information and communication
system, or access in order to corrupt,
alter, steal or destroy using a computer or
other similar information and
communication devices without
knowledge or consent of the owner. This
includes, introduction of computer
viruses. (Sec. 33 (a))
• Piracy or the unauthorized copying, reproduction,
dissemination, distribution, importation, use,
removal, alteration, substitution, modification
storage, uploading, downloading, communication,
making available to the public, or broadcasting of
protected material, electronic signature or
copyrighted works including legally protected
works, through the use of telecommunication
networks, such as, but not limited to, the internet, in
a manner that infinges intellectual property rights,
• Violations of the Consumer Act or Republic Act No.
7394 and other relevant or pertinent laws through
transactions covered by or using electronic data
messages or electronic documents, and
• Other violations of the provision (Sec. 33 of RA No.
8792)
Republic Act No. 9995 or Anti-Photo and Video Voyeurism
Act of 2000
What is Photo or video voyuerism?
An act of taking photo or video coverage of a person or group
of persons performing sexual act or any similar activity or of
capturing an image of the private area of a person or persons
without latter’s consent. This is includes: act of selling,
copying, reproducing, broadcasting, sharing, showing or
exhibiting the photo or video coverage or recording of such
sexual act or similar activity through:
1. VCD/DVD
2. Interent,
3. Cellular phones, and
 4. Similar means or device without WRITTEN consent
of the persons involved (Sec. 3 (d))
Exemption (Sec. 6)
Requisites:
1. Any peace officer,
2. Who is authorized by a written order of the court
-which is to be applied by applicant and examined under oath
or affirmation and the witnesses, who the applicant may
produce, and there is showing that there are reasonable
grounds to believe that photo or video voyeurism has been
committed or about to be committed and would render a
conviction
1. To use the record or any copy thereof as evidence in
any civil, criminal investigation or trial of the crime
of photo or video voyeurism
Publication of Private Facts
-the interest sought to be protected is the right to be free from
unwarranted publicity, from the wrongful publicizing of the
private affairs and activities of an individual which are outside
the realm of legitimate public concern.
-elements: a)there is a public disclosure, b)without the latter’s
consent, and c)regardless of whether or not such publicity
consititutes criminal offense like libel or defamation.
Aggravating circumstance: the publication was made with
intent of gain or for commercial and business purposes.
Ayer Production, et al vs Hon. Capulong et al Gr Nos. 82380
and 82398
Facts:
-Ayer Production wanted to create a motion picture depicting
the 1986 EDSA Revolution with a title “The Four Day
Revolution”
-They sought the permission from Fidel Ramos and Juan
Ponce Enrile who were active participants during the
happening.
-Fidel V. Ramos signified his approval but Juan Ponce Enrile
did not approve the exhibition of his name, his picture or any
member of his family
-Ayer Production deleted the name of Enrile from the movie
script and the former proceeded to film the projected motion
picture
-Enrile filed a complaint with application of TRO and writ of
preliminary injuction with RTC which was granted
-Ayer production alleged freedom of expression while Enrile
interposed right of privacy
Issue: W/N the motion picture violated the right of privacy of
Enrile.
Held: No.
1. Because of the preferred character of the
constitutional right of freedom of speech and
expression , it vitiates measure of prior restraint
upon the exercise of such freedoms.
2. The subject matter is one of public interest and must
be regarded as having passed into the public domain
and from the mass media. It is not about the private
life of the Enrile
3. A public figure has been defined as a person who,
by his accomplishments, fame, or mode of living, or
by adopting a profession or calling which gives the
public a legitimate interest in his doings, affairs, and
his character, has become a public personage or a
celebrity
4. Such public figures were held to have lost, to some
extent at least, their right of privacy, their affairs had
already become public, and could no longer be
regarded as their own private business
49
5. Enrile, for actively participating in the historical
event and being a member of the Senate, is a public
figure.
Jose Cordero et al vs Alicia Buigasco et al (17 CAR 2s 517
CA)
Facts:
-A complaint instituted by JoselitoGomesz and spouses Jose
Cordero and Eusebia Cordero for damages, invoking Article 26
of NCC, against Alicia Buigasco
-Alicia authored the article Malagim Na Wakas Ng IsangPag-
ibig in the Aliwan Magazine.
-The article contains details of private and personal affairs of
the plaintiffs and used their real names
-RTC ruled infavor of the plaintiffs
Issue: W/N there was violation of privacy under Article 26.
Held: Yes, particularly paragraphs 1 and 2.
-The unwarranted publication of a person’s name, or the
unauthorized use or publication of his photograph or other
likeness, constitutes the most common means of invasion of
the right of privacy.
-The love affairs between Joselito and the late Anida is private
and purely personal to the parties concerned over which the
public obviously can claim no legitimate interest whatsoever
-The right of privacy covers all intrusion whether or not
publicity constitutes a criminal offense like libel or defamation
Vivares vs STC
Gr. No. 202666
A person who places a photograph on the internet precisely
intends to forsake and renounce all privacy rights to such
imagery, particularly under circumstances such as here, where
the defendant did not employ protective measures or devices
that would have controlled access to the Wed page or the
photograph itself (citing US vs Gines-Perez)
Setting the posts to be viewed as “Friends” does not give
assurance that it can no longer be viewed by another user who
is not Facebook friends with the source of the content
SC advised that “had it been the pictures posted were limited to
the original uploader, through “Me only”, or the viewers are
limited, through selecting “Custom”, the result may have been
different. There is a manifestation of effort of keeping the
photos private
OSN users should be aware of the risks that they expose
themselves to whenever they engage in cyberspace
activities.Accordingly, they should be cautious enough to
control their privacy and to exercise sound discretion regarding
how much information about themselves they are willing to
give up. Internet consumers ought to be aware that, by entering
or uploading any kind of data or information online, they are
automatically and inevitably making it permanently available
online, the perpetuation of which is outside the ambit of their
control. Furthermore, and more importantly, information,
otherwise private, voluntarily surrendered by them can be
opened, read, or copied by third parties who may or may not be
allowed access to such.
Hence, inorder to invoke privacy of uploaded photos in OSN,
it is first necessary that said user manifest the intention to keep
certain posts private, through the employment of measures to
prevent access thereto or to limit its visibility by utilization of
the OSN’s privacy tools
OSN’s privacy tools:
a. Public
b. Friends of friends
c. Friends
d. Custom
e. Only me
KINDS OF DAMAGES
Art. 2197. Damages may be:
1) Actual or compensatory; Exception: Damages are measured by the benefit that has
accrued to the defendant in certain cases.
2) Moral;
Example: In Intellectual Property Code allows recovery of the
3) Nominal; amount that was earned by the defendant who infringed the
right of the owner of the mark.
4) Temperate or moderate;
Damages in Breach of Contract
5) Liquidated; or
Art. 2201. In contracts and quasi-contracts, the damages for
6) Exemplary or corrective. which the obligor who acted in good faith is liable shall be
those that are the natural and probable consequences of the
Actual or Compensatory Damages breach of the obligation, and which the parties have foreseen or
could have reasonably foreseen at the time the obligation was
Article 2199 of the Civil Code provides that “except as
constituted.
provided by law or by stipulation, one is entitled to an
adequate compensation only for such pecuniary loss suffered In case of fraud, bad faith, malice or
by him as he has duly proved. Such compensation is referred to wanton attitude, the obligor shall be responsible for all
as actual or compensatory damages.” damages which may be reasonably attributed to the non-
performance of the obligation.
Purpose of the law in awarding actual damages is to
repair the wrong that has been done, to compensate for the
Certainty of Damages
injury inflicted, and not to impose a penalty.
 A party is entitled to adequate compensation only
Classification of Actual Damages for such pecuniary loss actually suffered and duly
prove.
1) DanoEmergenteor the loss of what a person already
possesses.  The claimant is duty-bound to point out specific
facts that afford a basis for measuring whatever
2)LucroCesanteor the failure to receive as a benefit tha t
compensatory damages are borne.
would have pertained to him. It shall also include loss or
impairment of earning capacity in cases of temporary or  Proof of actual loss is not necessary in cases where
permanent personal injury. the law or jurisprudence allows the award of civil
indemnity
Both items of damages may be awarded in the same
case in favor of the same injured party. Damage to Property
Extend and Measure of Damages  Damage to or Loss of Personal Property
Art. 2202. In crimes and quasi- delicts, the defendant shall be Where goods were destroyed by the wrongful act of
liable for all damages which are the natural and probable the defendant, the plaintiff is entitled to their value at the time
consequences of. It is not necessary that such damages have of destruction.
been foreseen or could have reasonably been foreseen by the
defendant.  Damage to or Loss of Real Property
General Rule: The damage is measured on plaintiff’s loss and In case of total loss, the value of the real property at
not on defendant’s gain. the time and place of the loss must be assessed and such
50
assessed value is the measure of the damage due to the
plaintiff.
 Loss of Possession
Where the plaintiff was merely deprived of his
possession said plaintiff is entitled to the value of use of
the premises.
Personal Injury
If the plaintiff is asking for damages for his own
injury, said plaintiff is entitled to the amount of medical
expenses as well as other reasonable expenses that he incurred
to treat his or his relative’s injuries.
Damages in Case of Death
 When death occurs due to a negligent act or a crime,
the following damages may be recovered:
1) civil indemnity ex delicto for the death of the
victim;
2) actual or compensatory damages;
3) moral damages;
4) exemplary damages;
5) attoney’s fees and expenses of litigation; and
6) interest, in proper cases.
Loss of Earning Capacity
 Formula for the computation of the awarded
damages for loss of earning capacity
Net Earning Capacity = Life Expectancy x [Gross
Annual less Necessary Living Expenses]
Loss of Profits
 This may take in the form of commissions that were
lost by reason of the acts or omissions of the
defendant. This may also take the form of income
that was stipulated in the contract that was
terminated in a wanton and fraudulent manner.
 Damages may include the cost of lost opportunity
consisting of the profits that the plaintiff failed to
obtain due to a contract’s early termination.
Attorney’s Fees
 GR: In the absence of stipulation, attorney’s fees
and expenses of litigation, other than judicial costs,
cannot be recovered.
 Except:
1) When exemplary damages are awarded;
2) When the defendant’s act or omission has
compelled the plaintiff to litigate with third persons or to incur
expenses to protect his interest;
3) In criminal cases of malicious prosecution against
the plaintiff;
4)In case of a clearly unfounded civil action or
proceeding against the plaintiff;
5) Where the defendant acted in gross and evident bad faith in
refusing to satisfy the plaintiff’s plainly valid, just and
demandable claim;
6) In actions for legal support;
7) In actions for the recovery of wages of household,
helpers, laborers and skilled workers;
8) In actions for indemnity under workmen’s
compensation and employer’s liability laws;
9) In a separate civil action to recover civil liability
arising from a crime;
10) 10) When at least double judicial cost are awarded;
51
11) 11) In any other cases where the court deems it just
and equitable that attorney’s fees and expenses of
litigation should be recovered.
12) In all cases, the attorney’s fees and
expenses of litigation must be reasonable.
Interest- may be paid only either as a compensation for the use
of money (monetary interest) or as damages (compensatory
interest).
Monetary interest refers to the price paid for the use of money
for a period of time and are expressed as a percentage of the
total outstanding balance that is either fixed or variable.
2) Moral Damages
Moral damages include physical suffering, mental anguish,
fright, serious anxiety, besmirched reputation, wounded
feelings, moral shock, social humiliation and similar injury.
Effect of Death
 A claim for moral damages does not survive the
death of the plaintiff.
Reason: It is extremely personal to the injured party.
Elements
1) There must be an injury, whether physical, mental or
psychological, clearly sustained by the claimant;
2) There must be a culpable act or omission factually
established;
3) The wrongful act or omission of the defendant is the
proximate cause of the injury sustained by the
claimant; and
4) The award of damages is predicted on any of the
cases stated in Art. 2219.
Proof and Causation
  The assessment of the damage is left to the
discretion of the court, according to the
circumstances of each case.
Cases When Moral Damages May Be Awarded
1) A criminal offense resulting in physical injuries;
2) Quasi-delicts causing physical injuries;
3) Seduction, abduction, rape, or other lascivious acts;
4) Adultery or concubinage;
5) Illegal or arbitrary detention or arrest;
6) Illegal search;
7) Libel, slander or any other form of defamation;
8) 8) Malicious prosecution;
9) 9) Acts mentioned in Article 309;
10) 10) Acts and actions referred to in Arts. 21, 26, 27,
28, 29, 30, 32, 34 and 35.
11) The parents of the female seduced, abducted, raped
or abused, referred to in No. 3 of this article, may
also recover moral damages.
12) The spouse, descendants, ascendants, and brothers
and sisters may bring the action mentioned in No.9
of this article, in the order named.
Art. 2220. Willful injury to property may be a legal ground for
awarding moral damages if the court should find that, under
the circumstances, such damages are justly due. The same rule
applies to breaches of contract where the defendant acted
fraudulently or in bad faith.
Factors in Determining Amount
 Factors specified by law and established by
jurisprudence that could affect the amount
recovered.
1) Extent of Humiliation
2) Pain and suffering
3) Official, Political, Social and Financial Standing
4) Age
Fixed Amount
 In murder cases, fixed amount of moral damages is
P500,000.
 In case of moral damages for separate civil actions
for quasi-delict where the victim died is P500,000.
 In case of moral damages for each conviction of
rape which is qualified by circumstances warranting
the imposition of the death penalty (even if the same
penalty is no longer imposable) is P100,000.
Persons who may Recover
 Generally, the person who endured physical
suffering, mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings, moral
shock, social humiliation and similar injury is the
person who can recover moral damages.
 If the basis of the claim is suffering, only the one
who suffered and not his or her spouse may recover.
 a) Relatives
Exceptions:
 The parents of the female seduced,
abducted, raped or abused, referred to in No. 3 of
this article, may also recover moral damages.
 The spouse, descendants, ascendants, and
brothers and sisters may bring the action mentioned
in No.9 of this article, in the order named.
 The acts mentioned in No. 9 those
covered by Art. 309 of the NCC provides that “any
person wh0 shows disrespect to the dead, or
52
wrongfully interferes with a funeral shall be liable to
the family of the deceased for damages, material and
moral.”
In addition, Art. 2209 provides that the spouse, legitimate and
illegitimate descendants and ascendants of the deceased may
demand moral damages for mental anguish by reason of the
death of the deceased.
b) Corporation
GR: Corporations and other artificial beings are not entitled to
recover damages.
Exception:
The only exception to the rule is when the corporation has a
reputation that is debased, resulting in its humiliation in the
business realm.
3)Nominal Damages
Art. 2221. Nominal damages are adjudicated in order that a
right of the plaintiff, which has been violated or invaded by the
defendant, may be vindicated or recognized, and not for the
purpose of indemnifying the plaintiff for any loss suffered by
him.
It is generally held that a nominal damages is a substantial
claim, if based upon the violation of a legal right; in such case,
the law presumes damage although actual or compensatory
damages are not proven.
Generally, nominal damages by their nature are small sums
fixed by the court without regard to the extent of the harm
done to the injured party.
In the case of A. T. Stearns Lumber Co. vs Howlett the court
ruled that “only nominal damages can be recovered by a
manufacturer that was injured by a conspiracy to prevent use
of his product, where the actual damages cannot be determined
and others also suffered whatever he suffered in the same line
of business so that he suffered no special damages
whatsoever.”
Cannot Co-Exist with Actual Damages
Nominal damages are adjudicated in order that a right of the
plaintiff, which has been violated or invaded by the defendant,
may be vindicated or recognized, and not for the purpose of
indemnifying the plaintiff for any loss suffered by him. An
award of compensatory damages is a vindication of right. It is
in itself recognition that plaintiff’s right was violated, hence,
the award of nominal damages is unnecessary and improper.
Labor Cases
Nominal damages may be appropriately awarded if the right to
procedural due process of the employee was violated. This
award is proper where there is just or authorized cause but due
process was not accorded to the employee.
4)Temperate or Moderate Damages
 Art. 2224. Temperate or moderate damages, which
are more than nominal but less than compensatory
damages, may be recovered when the court finds
that some pecuniary loss has been suffered but its
amount can not, from the nature of the case, be
provided with certainty.
 Art. 2225. Temperate damages must be reasonable
under the circumstances.
Loss of Earning Capacity
 Temperate damages may be awarded in lieu of
actual damages for loss of earning capacity where
the earning capacity is plainly established but no
evidence was presented to support the allegation of
the injured party.
Lost Earnings
 Temperate damages can be awarded when the court
finds that some pecuniary loss has been suffered but
its amount cannot, from the nature of the case, be
proved with certainty.
Fixed Temperate Damages
 In murder cases, the Supreme court pegged the
amount of temperate damages at P25,000 if actual
damages were not established.
 In cases where the amount of actual damages for
funeral expenses cannot be determined because of
the absence of receipts to prove them, temperate
damages may be awarded in the amount of P25,000.
Injury to Business or Credit Standing
 The Court in one case ruled that “in an action by a
depositor against a bank for damages resulting from
the wrongful dishonor of the depositor’s check,
temperate damages for injury to business standing
or commercial credit may be recovered even in the
absence of definite proof of direct pecuniary loss to
the plaintiff, under Article 2205 of the New Civil
Code.”
LIQUIDATED DAMAGES
• are frequently agreed upon by the parties, either by
way of penalty or in order to avoid controversy on
the amount of damages.
• If intended as a penalty in obligations with a penal
cause, proof of actual damages suffered by the
creditor is not necessary in order that the penalty
may be demanded (Art. 1228, NCC). No proof of
pecuniary loss is necessary.
Atlantic Erectors, Inc. v. Court of Appeals
[G.R. No. 170732, October 11, 2012, 684 SCRA 55]
DOCTRINE:
Liquidated damages – The parties to a contract are allowed
to stipulate on liquidated damages to be paid in case of breach.
It is attached to an obligation in order to ensure performance
and has a double function: (1) to provide for liquidated
damages, and (2) to strengthen the coercive force of the
obligation by the threat of greater responsibility in the event of
breach. As a pre-condition to such award, however, there must
be proof of the fact of delay in the performance of the
obligation.
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Effect of default – As long as the contractor fails to finish the
works within the period agreed upon by the parties without
justifiable reason and after the owner makes a demand, then
liability for damages as a consequence of such default arises.
FACTS:
Respondent Herbal Cove Realty Corporation (Herbal Cove)
wanted to build aa subdivision project somewhere in Tagaytay
City. It hired petitioner Atlantic Erectors Inc. (Atlantic) to
build the project. The Construction Contract indicated a
contract price of almost P16.7Million and to finish building
within 180 days. To secure payment in case of non completion
of the project, the contract also provides:
ARTICLE IX
FAILURE TO COMPLETE WORK
Section 1: The CONTRACTOR acknowledges that the
OWNER shall not suffer [loss] by the delay or failure of the
CONTRACTOR to finish and complete the works called for
under this Contract within the time stipulated in Section 6,
Article IV. The CONTRACTOR hereby expresses covenants
and agrees to pay to the Owner liquidated damages equivalent
to the One-Tenth of One Percent (1/10 of 1%) of the Contract
Price per calendar day of delay until completion, delivery and
acceptance of the said Works by the OWNER to a maximum
amount not to exceed 10%.
Atlantic was asked to commence construction on July 8, 1996,
but eventually, it asked for an extension citing bad weather and
delayed turnover of project sites which Herbal Cove granted
but ultimately, Atlantic failed to deliver. Herbal Cove
terminated the contract on October 3, 1997 and demanded
liquidated damages. Herbal Cove also hired another contractor
to finish the job. It filed a case with the Construction Industry
Arbitration Commission (CIAC). The CIAC found in favor of
Herbal Cove but did not award liquidated damages for failure
to comply with 15-day notice of termination (provided for in
its contract.). The CA awarded liquidated damages.
ISSUE: Whether or not Atlantic is liable for liquidated
damages.
HELD:

Yes. The CIAC disallowed liquidated damages because Herbal
Cove failed to comply with the rule on notice. However, the
contract is the law between the parties and there are provisions
in the same contract which provide "the Contractor shall be
required to pay the Owner the liquidated damages in the
amount stipulated in the Contract Agreement, the said payment
to be made as liquidated damages, and not by way of penalty.
The Owner may deduct from any sum due or to become due
the Contractor any sums accruing for liquidated damages as
herein stated." also, "Neither the taking over by the Owner of
the work for completion by administration nor the re-letting of
the same to another Contractor shall be construed as a waiver
of the Owner’s rights to recover damages against the original
Contractor and/or his sureties for the failure to complete the
work as stipulated." Thus, under the contract, Herbal Cove's
right to liquidated damages is distinct from the right to
terminate contract.
EXEMPLARY/CORRECTIVE DAMAGES
• are intended to serve as a deterrent to serious
wrongdoings.
• That the claimant is entitled to moral, temperate or
compensatory damages; and that the crime was
committed with 1 or more aggravating
circumstances, or the quasi-‐delict was committed
with gross negligence, or in contracts and quasi-
contracts the act must be accompanied by bad faith
or done in wanton, fraudulent, oppressive or
malevolent manner. No proof of pecuniary loss is
necessary.
B.F. Metal Corporation vs Lomotan
GR No. 170813, 16 April 2008
FACTS:
Rico Umuyon was driving the owner-type jeep owned by
spouses Rolando and LinaflorLomotan at a moderate speed of
20 to 30 kilometers per hour when at the opposite lane, the
speeding ten-wheeler truck driven by Onofre Rivera overtook a
car by invading the lane being traversed by the jeep and
rammed into it. The jeep was a total wreck while Umuyon
suffered ‘blunt thoracic injury with multiple rib fracture,
fractured scapula (L), with pneumohemothorax", which
entailed his hospitalization for 19 days . Also in view of the
injuries he sustained, Umuyon could no longer drive, reducing
his daily income from P150 to P100.
The spouses Lomotan and Umuyon instituted a separate and
independent civil action for damages against BF Metal
Corporation (“BF Metal”) and Rivera alleging that Rivera’s
gross negligence and recklessness were the immediate and
proximate cause of the vehicular accident and that BF Metal
failed to exercise the required diligence in the selection and
supervision of Rivera. The complaint prayed for the award of
actual, exemplary and moral damages and attorney’s fees. Both
the trial and appellate courts awarded P100,000 in moral
damages.
ISSUE: Whether the award of exemplary damages and
attorneys is warranted
Exemplary or corrective damages are imposed by way of
example or correction for the public good. It cannot be
recovered as a matter of right. The court will decide whether or
not it should be adjudicated. In quasi-delicts, exemplary
damages may be granted if defendant acted with gross
negligence. The amount of exemplary damages need not be
proved, the plaintiff must show that he is entitled to moral,
temperate or compensatory damages before the court may
consider the question of whether or not exemplary damages
should be awarded. To serve as an example for the public
good, the Court affirms the award of exemplary damages
amounting to P100,000.00 and attorney’s fees of P25,000.00
Definition and Concept of Damages
• Damage has been defined by Esriche “as the
detriment injury, or loss which are occasioned by
reason of fault of another in the property or person.”
Of whatsoever nature the damage be, and from
whatsoever cause it may proceed, the person who
has done the injury ought to repair it by an
indemnity proportionate to his fault to the loss
caused thereby.
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• The Supreme Court defined the word “damages” in
one case as the pecuniary compensation,
recompense, or satisfaction for an injury sustained,
or as otherwise expressed, the pecuniary
consequences which the law imposes for the breach
of some duty or violation of some rights.
• In another case, damage is defined as the loss, hurt
or harm which results from injury, and damages are
the recompense or compensation awarded for the
damage suffered.
Complaint for Damages is Personal Action
• A complaint for damages is a personal action and
may be commenced and tried where the defendant
or any of the defendant resides or may be found, or
where the plaintiff or any of the plaintiffs resides at
the election of the plaintiff
Award must be Monetary
• In action for damages, courts should award an
amount to the winning party and not its equivalent
in property.
• The damage that should be awarded should be the
money value of such damages.
• In one case, the plaintiffs were ordered “jointly and
solidarily liable to defendants the quantity of one
hundred (100) cavans of palay every year from
1972.”The Supreme Court deleted such award
explaining that One Hundred (100) cavans of palay
as a form of damages cannot be sustained because
palay is not legal currency of the Philippines.