TORTS AND DAMAGES
Atty. Giancarlo Alicaya | SY 2018-19
I. Concept
a. History
b. Definition
LARGO
In common law, torts cover all wrongful acts,
although sometimes viewed to be limited only to a
wrong independent of a contract.
Intentional torts include assault, battery, intentional
infliction of emotional distress (flED), invasion of privacy,
false imprisonment, fraud, malicious prosecution,
defamation, abuse of processes, trespass to land and
trespass to chattels.
On the other hand, unintentional torts are usually
founded on negligent acts and may include malpractice
(professional negligence), and product liability.
AQUINO
Tort is an unlawful violation of private right, not
created by contract, and which gives rise to an action for
damages. It is an act or omission producing an injury to
another, without any previous existing lawful relation of
which the said act or omission may be said to be a natural
outgrowth or incident. (Robles v. Castillo)
It is also defined as a “private or civil wrong or injury,
other than breach of contract,’’ for which the court will
provide a remedy in the form of an action for damages. It
is a violation of a duty imposed by general law or
otherwise upon all persons occupying the relation to each
other which is involved in a given transaction. There must
always be violation of some duty that must arise by
operation of law and not by mere agreement of the
parties. It is a legal wrong committed upon person or
property independent of contract. (Black’s Law Dictionary)
As thus defined, tort in common law includes
intentional torts, negligence, and strict liability in tort.
Intentional torts include conduct where the actor desires
to cause the consequences of his act or believes the
consequences are substantially certain to result from it.
Intentional torts include assault, battery, false
imprisonment, defamation, invasion of privacy and
interference of property.
Negligence, on the other hand, involves voluntary
acts or omissions which result in injury to others, without
intending to cause the same. The actor fails to exercise
due care in performing such acts or omissions. There is
strict liability in tort where the person is made liable
independent of fault or negligence upon submission of
proof of certain facts.
Naguiat v. NLRC, GR No. 116123, March 13, 1997
Facts:
Taxi Drivers (respondents) praying for separation pay from the
CFTI (Naguiat Enterprise, petitioners) which was dissolved due to the
phase-out of the US Military bases in the Philippines. There was a
negotiation with the CFTI Labor Union of which an amount of
P500.00 per year of service was agreed upon as separation pay.
However, respondent taxi drivers did not agree, thus the case was
filed. Respondents claiming that they are regular employees having
earned $15.00 for working 16 days a month.
Labor Arbiter found the complainants to be regular workers of
CFTI and ordered them to paid P1,200 per year of service for
“humanitarian consideration” setting aside the agreement between
CFTI and the drivers’ union. LA rejected the allegations of CFTI
(financial loss due to the erruption of Mt. Pinatubo which made the
roads impassable but the records are devoid of such evidence)
because their closure was due to the untimely closure of Clark Air
Base.
NLRC modified decision of LA granting separation pay to the
private respondents stating - “In discharging the above obligations,
Sergio F. Naguiat Enterprises, which is headed by Sergio F. Naguiat
and Antolin Naguiat, father and son at the same time the President
and Vice-President and General Manager, respectively, should be
joined as indispensable party whose liability is joint and several.”
Issue:
Whether or not the resolution issued by NLRC is contrary to
law.
(Petitioners incessantly insist that Sergio F. Naguiat Enterprises,
Inc. is a separate and distinct juridical entity which cannot be held
jointly and severally liable for the obligations of CFTI. And similarly,
Sergio F. Naguiat and Antolin Naguiat were merely officers and
stockholders of CFTI and, thus, could not be held personally
accountable for corporate debts.)
Ruling:
YES, CFTI was the actual and direct employer of individual
respondents, and that Naguiat Enterprises was neither their indirect
employer nor labor-only contractor. It was not involved at all in the
taxi business.
CFTI president is solidarily liable. In the broader interest of
justice, we, however, hold that Sergio F. Naguiat, in his capacity as
president of CFTI, cannot be exonerated from joint and several
liability in the payment of separation pay to individual respondents.
Sergio F. Naguiat, admittedly, was the president of CFTI who
actively managed the business. Thus, applying the ruling in A. C.
Ransom, he falls within the meaning of an "employer" as
contemplated by the Labor Code, who may be held jointly and
severally liable for the obligations of the corporation to its dismissed
employees.
Moreover, petitioners also conceded that both CFTI and
Naguiat Enterprises were "close family corporations"[34] owned by
the Naguiat family. Section 100, paragraph 5, (under Title XII on Close
Corporations) of the Corporation Code, states:
"(5) To the extent that the stockholders are actively
engage(d) in the management or operation of the business and
affairs of a close corporation, the stockholders shall be held to
strict fiduciary duties to each other and among themselves. Said
stockholders shall be personally liable for corporate torts unless
the corporation has obtained reasonably adequate liability
insurance." (underscoring supplied)
Nothing in the records show whether CFTI obtained "reasonably
adequate liability insurance;" thus, what remains is to determine
whether there was corporate tort.
Our jurisprudence is wanting as to the definite scope of
"corporate tort." Essentially, "tort" consists in the violation of a right
given or the omission of a duty imposed by law. Simply stated, tort
is a breach of a legal duty. Article 283 of the Labor Code mandates
the employer to grant separation pay to employees in case of closure
or cessation of operations of establishment or undertaking not due
to serious business losses or financial reverses, which is the condition
obtaining at bar. CFTI failed to comply with this law-imposed duty or
obligation. Consequently, its stockholder who was actively engaged
in the management or operation of the business should be held
personally liable.
Antolin T. Naguiat was the vice president of the CFTI. Although
he carried the title of "general manager" as well, it had not been
shown that he had acted in such capacity. Furthermore, no evidence
on the extent of his participation in the management or operation of
the business was proffered. In this light, he cannot be held solidarily
liable for the obligations of CFTI and Sergio Naguiat to the private
respondents.
WHEREFORE, the foregoing premises considered, the petition is
PARTLY GRANTED. The assailed February 28, 1994 Resolution of the
NLRC is hereby MODIFIED as follows:
 TORTS AND DAMAGES
Atty. Giancarlo Alicaya | SY 2018-19

(1) Petitioner Clark Field Taxi, Incorporated, and Sergio F. railing on the right instead of going to the left. As the defendant
Naguiat, president and co-owner thereof, are ORDERED to pay, approached (thinking that the plaintiff had moved), he guided the
jointly and severally, the individual respondents their separation pay automobile to the left as it was the proper side of the road. In so
computed at US$120.00 for every year of service, or its peso doing the defendant assumed that the horseman would move to the
equivalent at the time of payment or satisfaction of the judgment; other side. The pony had not as yet exhibited fright, and the rider had
made no sign for the automobile to stop. Seeing that the pony was
(2) Petitioner Sergio F. Naguiat Enterprises, Incorporated, and apparently quiet, the defendant, instead of veering to the right while
Antolin T. Naguiat are ABSOLVED from liability in the payment of yet some distance away or slowing down, continued to approach
separation pay to individual respondents. directly toward the horse without diminution of speed. When he had
gotten quite near, there being then no possibility of the horse getting
c. Torts vs. Quasi-Delict across to the other side, the defendant quickly turned his car
sufficiently to the right to escape hitting the horse alongside of the
TORTS QUASI-DELICT railing where it as then standing; but in so doing the automobile
 Intentional and  Acts committed by passed in such close proximity to the animal that it became
Acts malicious acts negligence without frightened and turned its body across the bridge with its head toward
included
intent the railing. In so doing, it as struck on the hock of the left hind leg by
the flange of the car and the limb was broken. The horse fell and its
Governing  Penal Code  Art. 2176 of the Civil rider was thrown off with some violence. From the evidence adduced
law Code in the case we believe that when the accident occurred the free
 Broader - includes not  Homologous - limited to space where the pony stood between the automobile and the railing
only negligence, but negligent acts or of the bridge was probably less than one and one half meters. As a
intentional criminal omissions and excludes result of its injuries the horse died. The plaintiff received contusions
Scope acts as well such as intentional ones which caused temporary unconsciousness and required medical
assault and battery, attention for several days.
false imprisonment
and deceit Issue:

II. Quasi-Delict
a. Statutory Basis - Art. 2176
LARGO
Our concept of torts leans towards its civil law
equivalent of culpa aquiliana. Thus, in Article 2176 of our
Civil Code, the following definition appears: "Whoever by
act or omission causes damage to another, there being
fault or negligence, is obliged to pay for the damage
done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a
quasi-delict."
AQUINO
Article 1157 of the New Civil Code includes
quasi-delict as a source of obligation. This source of
obligation is classified as “extra-contractual obligation”
and is governed by Chapter XVII, Chapter 2 of the Code
consisting of Articles 2176 to 2194.
Under this view, quasi-delict is homologous but not
identical to tort of common law. (Manila Railroad Co. vs.
Cia Transatlantica, 38 Phil. 875). In Cangco vs. Manila
Railroad Company (38 Phil. 768 [1918]), the Supreme
Court cited Manresa (Vol. 8, p. 68) who declared that the
liability arising from extra-contractual culpa is always
based upon a voluntary act or omission which, without
willful intent, but by mere negligence or inattention, has
caused damage to another.
The proposition is that the entire notion of
quasi-delict is founded on fault or negligence which
excludes all notions of intent, deliberateness, bad faith
or malice.
b. Definition
Picart v. Smith, GR No. L-12219, March 15, 1918
Facts:
In this action the plaintiff, Amado Picart, seeks to recover of the
defendant, Frank Smith, jr., the sum of P31,000, as damages alleged
to have been caused by an automobile driven by the defendant.
The plaintiff was riding on his horse over Carlatan Bridge when
the defendant approached from the opposite direction riding his
automobile going at the rate of about 10/12 miles per hour. When
the defendant neared the bridge, he saw the plaintiff and honked to
give warning. The plaintiff thinking that he has not sufficient time to
get over to the other side, pulled up his horse closely up against the
Whether or not the defendant for maneuvering his car was
guilty of negligence giving rise to a civil obligation to repair the
damage done.
Ruling:
YES. As the defendant started across the bridge, he had the
right to assume that the horse and the rider would pass over to the
proper side; but as he moved toward the center of the bridge it was
demonstrated to his eyes that this would not be done; and he must
in a moment have perceived that it was too late for the horse to
cross with safety in front of the moving vehicle. In the nature of
things this change of situation occurred while the automobile was yet
some distance away; and from this moment it was not longer within
the power of the plaintiff to escape being run down by going to a
place of greater safety. The control of the situation had then passed
entirely to the defendant; and it was his duty either to bring his car to
an immediate stop or, seeing that there were no other persons on
the bridge, to take the other side and pass sufficiently far away from
the horse to avoid the danger of collision. Instead of doing this, the
defendant ran straight on until he was almost upon the horse. He
was, we think, deceived into doing this by the fact that the horse
had not yet exhibited fright. But in view of the known nature of
horses, there was an appreciable risk that, if the animal in question
was unacquainted with automobiles, he might get exited and jump
under the conditions which here confronted him. When the
defendant exposed the horse and rider to this danger he was, in our
opinion, negligent in the eye of the law.
The test by which to determine the existence of negligence in
a particular case may be stated as follows: Did the defendant in
doing the alleged negligent act use that person would have used in
the same situation? If not, then he is guilty of negligence. The law
here in effect adopts the standard supposed to be supplied by the
imaginary conduct of the discreet paterfamilias of the Roman law.
The existence of negligence in a given case is not determined by
reference to the personal judgment of the actor in the situation
before him. The law considers what would be reckless,
blameworthy, or negligent in the man of ordinary intelligence and
prudence and determines liability by that.
The question as to what would constitute the conduct of a
prudent man in a given situation must of course be always
determined in the light of human experience and in view of the facts
involved in the particular case. Abstract speculations cannot here be
of much value but this much can be profitably said: Reasonable men
govern their conduct by the circumstances which are before them or
known to them. They are not, and are not supposed to be,

omniscient of the future. Hence they can be expected to take care
only when there is something before them to suggest or warn of
danger. Could a prudent man, in the case under consideration,
foresee harm as a result of the course actually pursued? If so, it was
the duty of the actor to take precautions to guard against that harm.
Reasonable foresight of harm, followed by ignoring of the suggestion
born of this prevision, is always necessary before negligence can be
held to exist. Stated in these terms, the proper criterion for
determining the existence of negligence in a given case is this:
Conduct is said to be negligent when a prudent man in the position
of the tortfeasor would have foreseen that an effect harmful to
another was sufficiently probable to warrant his foregoing conduct
or guarding against its consequences.
It goes without saying that the plaintiff himself was not free
from fault, for he was guilty of antecedent negligence in planting
himself on the wrong side of the road. But as we have already
stated, the defendant was also negligent; and in such case the
problem always is to discover which agent is immediately and
directly responsible. It will be noted that the negligent acts of the
two parties were not contemporaneous, since the negligence of the
defendant succeeded the negligence of the plaintiff by an
appreciable interval. Under these circumstances the law is that the
person who has the last fair chance to avoid the impending harm
and fails to do so is chargeable with the consequences, without
reference to the prior negligence of the other party.
The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co.
(7 Phil. Rep., 359) should perhaps be mentioned in this connection.
This Court there held that while contributory negligence on the part
of the person injured did not constitute a bar to recovery, it could
be received in evidence to reduce the damages which would
otherwise have been assessed wholly against the other party.
From what has been said it results that the judgment of the
lower court must be reversed, and judgment is her rendered that the
plaintiff recover of the defendant the sum of two hundred pesos
(P200), with costs of other instances. The sum here awarded is
estimated to include the value of the horse, medical expenses of the
plaintiff, the loss or damage occasioned to articles of his apparel, and
lawful interest on the whole to the date of this recovery. The other
damages claimed by the plaintiff are remote or otherwise of such
character as not to be recoverable. So ordered.
Separate Opinions
After mature deliberation, I have finally decided to concur with
the judgment in this case. I do so because of my understanding of the
"last clear chance" rule of the law of negligence as particularly
applied to automobile accidents. This rule cannot be invoked where
the negligence of the plaintiff is concurrent with that of the
defendant. Again, if a traveler when he reaches the point of collision
is in a situation to extricate himself and avoid injury, his negligence at
that point will prevent a recovery. But Justice Street finds as a fact
that the negligent act of the interval of time, and that at the moment
the plaintiff had no opportunity to avoid the accident. Consequently,
the "last clear chance" rule is applicable. In other words, when a
traveler has reached a point where he cannot extricate himself and
vigilance on his part will not avert the injury, his negligence in
reaching that position becomes the condition and not the proximate
cause of the injury and will not preclude a recovery. (Note especially
Aiken vs. Metcalf [1917], 102 Atl., 330.)
Cusi, et. al. v. PNR, GR No. L-29889, May 31, 1979
Facts:
Direct appeal from the decision of the Court of First Instance of
Rizal ordering defendant-appellant to indemnify the plaintiffs-
appellees in the total amount of Two Hundred Thirty-Nine Thousand
and Six Hundred Forty-Eight Pesos, and Seventy-Two Centavos
(P239,648.72) for injuries received in a collision caused by the gross
negligence of defendant-appellant, plus Ten Thousand Pesos
TORTS AND DAMAGES
Atty. Giancarlo Alicaya | SY 2018-19
(P10,000.00) as attorney's fees and expenses of litigation.
Plaintiffs were on their way home in their Vauxhall car from a
party that ended at 11 o’clock. Upon reaching the railroad tracks,
finding that the level crossing bar was raised and seeing that there
was no flashing red light, and hearing no whistle from any coming
train, Cusi slackened his speed and proceeded to cross the tracks. At
the same time, a train bound for Lucena traversed the crossing,
resulting in a collision. The impact threw the plaintiffs out of their
car. Both were rushed to the hospital and series of operations were
done.
For these injuries (fractures, concussion, abrasions, lacerations
and contusions with hematoma in various part of her bodies), she
underwent a total of four surgical opera. petitions in a period of two
years. As a result of the fracture on her right arm, there was a
shortening of about 1 cm. of that arm. She lost the flexibility of her
wrist, elbow and shoulder. Up to the time she took the witness stand
in August, 1966, she still had an intermedullary nail in the bone of her
right arm. Likewise, Victorino Cusi suffered brain injuries which
affected his speech, memory, sense of hearing and neck movement.
For a long period, he also felt pain all over his body.
Victorino Cusi claimed that prior to the accident he was a
successful businessman — the Special Assistant to the Dolor Lopez
Enterprises, the managing partner of Cusi and Rivera Partnership, the
manager of his ricemill, and with substantial investments in other
business enterprises. As a result of his injuries, he was unable to
properly attend to his various business undertakings. On the other
hand, his wife, Pilar, was a skilled music and piano teacher. After the
accident, she lost the dexterity of her fingers forcing her to quit her
profession. She also bore ugly scars on several parts of her body, and
she suffered anxiety of a possible miscarriage being then five (5)
months pregnant at the time of the accident.
The defense is centered on the proposition that the gross
negligence of Victorino Cusi was the proximate cause of the
collision; that had he made a full stop before traversing the crossing
as required by section 56(a) of Act 3992 (Motor Vehicle Law), he
could have seen and heard the approach of the train, and thus,
there would have been no collision.
Lower court ruled in favor of complainants.
Issue:
1 - Whether or not PRR are liable.
2 - Whether or not the negligence of Victorino Cusi was the
proximate cause of the collision.
Ruling:
1 - YES. Supreme court ruled affirming the decisiong however
award are reduced to a reasonable amount.
As the action is predicated on negligence, the New Civil Code
making clear that "whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for the
damage done the crucial question posed in the petition at bar is the
existence of negligence on the part of defendant-appellant as found
by the lower court.
The judicial pronouncement below that the gross negligence
of defendant-appellant was the proximate cause of the collision has
been thoroughly reviewed by this Court and we fully affirm the
same.
Negligence has been defined by Judge Cooley in his work on
Torts 3d ed sec. 13243 as "the failure to observe for the protection
of the interests of another person that degree of care, precaution,
and vigilance which the circumstances justly demand, whereby such
other person suffers injury." By such a test, it can readily be seen
that there is no hard and fast rule whereby such degree of care and
vigilance is measured, it is dependent upon the circumstances in
which a person finds himself so situated. All that the law requires is

that it is always incumbent upon a person to use that care and
diligence expected of reasonable men under similar circumstances.
These are the circumstances attendant to the collision.
Undisputably, the warning devices installed at the railroad crossing
were manually operated; there were only 2 shifts of guards provided
for the operation thereof — one, the 7:00 A.M. to 3:00 P. M. shift,
and the other, the 3:00 P.M. to 11:00 P.M. shift. On the night of the
accident, the train for Lucena was on an unscheduled trip after 11:00
P.M. During that precise hour, the warning devices were not
operating for no one attended to them. Also, as observed by the
lower court, the locomotive driver did not blow his whistle, thus: "...
he simply sped on without taking an extra precaution of blowing his
whistle from a distance of 50 to 10 meters from the crossing. That
the train was running at full speed is attested to by the fact that
notwithstanding the application of the emergency brakes, the train
did not stop until it reached a distance of around 100 meters."
These facts assessed together show the inadequacy, nay, the
absence, of precautions taken by the defendant-appellant to warn
the travelling public of the impending danger. It is clear to Us that as
the signal devices were wholly manually-operated, there was an
urgent need for a flagman or guard to man the crossing at all times.
As it was, the crossing was left unattended to after eleven o'clock
every night and on the night of the accident. We cannot in all reason
justify or condone the act of the defendant-appellant allowing the
subject locomotive to travel through the unattended crossing with
inoperative signal devices, but without sending any of its employees
to operate said signal devices so as to warn oncoming motorists of
the approach of one of its locomotives. It is not surprising therefore
that the in operation of the warning devices created a situation
which was misunderstood by the riding public to mean safe passage.
Jurisprudence recognizes that if warning devices are installed in
railroad crossings, the travelling public has the right to rely on such
warning devices to put them on their guard and take the necessary
precautions before crossing the tracks. A need, therefore, exists for
the railroad company to use reasonable care to keep such devices in
good condition and in working order, or to give notice that they are
not operating, since if such a signal is misunderstood it is a menace.
Thus, it has been held that if a railroad company maintains a
signalling device at a crossing to give warning of the approach of a
train, the failure of the device to operate is generally held to be
evidence of negligence, which maybe considered with all the
circumstances of the case in determining whether the railroad
company was negligent as a matter of fact.
2 - After a thorough perusal of the facts attendant to the case,
this Court is in fun accord with the lower court. Plaintiff-appellee
Victorino Cusi had exercised all the necessary precautions required of
him as to avoid injury to -himself and to others. We find no need for
him to have made a full stop; relying on his faculties of sight and
hearing, Victorino Cusi had no reason to anticipate the impending
danger.
Hence, on the same impression that the crossing was safe for
passage as before, plaintiff-appellee Victorino Cusi merely slackened
his speed and proceeded to cross the tracks, driving at the proper
rate of speed for going over railroad crossings. Had
defendant-appellant been successful in establishing that its
locomotive driver blew his whistle to warn motorists of his approach
to compensate for the absence of the warning signals, and that
Victorino Cusi, instead of stopping or slackening his speed, proceeded
with reckless speed and regardless of possible or threatened danger,
then We would have been put in doubt as to the degree of prudence
exercised by him and would have, in all probability, declared him
negligent. 6 But as the contrary was established, we remain
convinced that Victorino Cusi had not, through his own negligence,
contributed to the accident so as to deny him damages from the
defendant-appellant.
WHEREFORE, the judgment of the lower court is hereby
AFFIRMED with the modification that the total amount of damages
shall bear legal interest at six per cent (6%) from the rendition of the
decision dated March 26, 1968.
TORTS AND DAMAGES
Atty. Giancarlo Alicaya | SY 2018-19
Jarco Mktg. V. CA, 321 SCRA 377
Facts:
Petitioner Jarco Marketing Corporation is the owner of Syvels
Department Store, Makati City. Petitioners Leonardo Kong, Jose
Tiope and Elisa Panelo are the stores branch manager, operations
manager, and supervisor, respectively. Private respondents are
spouses and the parents of Zhieneth Aguilar (ZHIENETH).
In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were
at the 2nd floor of Syvels Department Store, Makati City. CRISELDA
was signing her credit card slip at the payment and verification
counter when she felt a sudden gust of wind and heard a loud thud.
She looked behind her. She then beheld her daughter ZHIENETH on
the floor, her young body pinned by the bulk of the stores
gift-wrapping counter/structure. ZHIENETH was crying and screaming
for help. Although shocked, CRISELDA was quick to ask the assistance
of the people around in lifting the counter and retrieving ZHIENETH
from the floor.[3]
ZHIENETH was quickly rushed to the Makati Medical Center
where she was operated on. The next day ZHIENETH lost her speech
and thereafter communicated with CRISELDA by writing on a magic
slate. The injuries she sustained took their toil on her young body.
She died fourteen (14) days after the accident or on 22 May 1983, on
the hospital bed. She was six years old.
After the burial of their daughter, private respondents
demanded upon petitioners the reimbursement of the
hospitalization, medical bills and wake and funeral expenses[6] which
they had incurred. Petitioners refused to pay. Consequently, private
respondents filed a complaint for damages, docketed as Civil Case
No. 7119 wherein they sought the payment of P157,522.86 for actual
damages, P300,000 for moral damages, P20,000 for attorneys fees
and an unspecified amount for loss of income and exemplary
damages.
In their answer with counterclaim, petitioners denied any
liability for the injuries and consequent death of ZHIENETH. They
claimed that CRISELDA was negligent in exercising care and diligence
over her daughter by allowing her to freely roam around in a store
filled with glassware and appliances. ZHIENETH too, was guilty of
contributory negligence since she climbed the counter, triggering its
eventual collapse on her. Petitioners also emphasized that the
counter was made of sturdy wood with a strong support; it never fell
nor collapsed for the past fifteen years since its construction.
Additionally, petitioner Jarco Marketing Corporation
maintained that it observed the diligence of a good father of a family
in the selection, supervision and control of its employees. The other
petitioners likewise raised due care and diligence in the performance
of their duties and countered that the complaint was malicious for
which they suffered besmirched reputation and mental anguish. They
sought the dismissal of the complaint and an award of moral and
exemplary damages and attorneys fees in their favor.
Trial court dismissed complaint and counterclaim after finding
that the preponderance of the evidence favored petitioners. It ruled
that the proximate cause of the fall of the counter on ZHIENETH was
her act of clinging to it. It believed petitioners witnesses who testified
that ZHIENETH clung to the counter, afterwhich the structure and the
girl fell with the structure falling on top of her, pinning her stomach.
In contrast, none of private respondents witnesses testified on how
the counter fell. The trial court also held that CRISELDA’s negligence
contributed to ZHIENETH’s accident.
Private respondents appealed the decision, attributing as errors
of the trial court its findings that: (1) the proximate cause of the fall
of the counter was ZHIENETHs misbehavior; (2) CRISELDA was
negligent in her care of ZHIENETH; (3) petitioners were not negligent
in the maintenance of the counter; and (4) petitioners were not liable
for the death of ZHIENETH.
Further, private respondents asserted that ZHIENETH should be
entitled to the conclusive presumption that a child below nine (9)

years is incapable of contributory negligence. And even if ZHIENETH,
at six (6) years old, was already capable of contributory negligence,
still it was physically impossible for her to have propped herself on
the counter. She had a small frame (four feet high and seventy
pounds) and the counter was much higher and heavier than she was.
Also, the testimony of one of the stores former employees, Gerardo
Gonzales, who accompanied ZHIENETH when she was brought to the
emergency room of the Makati Medical Center belied petitioners
theory that ZHIENETH climbed the counter. Gonzales claimed that
when ZHIENETH was asked by the doctor what she did, ZHIENETH
replied, [N]othing, I did not come near the counter and the counter
just fell on me.[9] Accordingly, Gonzales testimony on ZHIENETHs
spontaneous declaration should not only be considered as part of res
gestae but also accorded credit.
Moreover, negligence could not be imputed to CRISELDA for it
was reasonable for her to have let go of ZHIENETH at the precise
moment that she was signing the credit card slip.
Finally, private respondents vigorously maintained that the
proximate cause of ZHIENETHs death, was petitioners negligence in
failing to institute measures to have the counter permanently nailed.
On the other hand, petitioners argued that private respondents
raised purely factual issues which could no longer be disturbed. They
explained that ZHIENETHs death while unfortunate and tragic, was an
accident for which neither CRISELDA nor even ZHIENETH could
entirely be held faultless and blameless. Further, petitioners adverted
to the trial courts rejection of Gonzales testimony as unworthy of
credence.
As to private respondents claim that the counter should have
been nailed to the ground, petitioners justified that it was not
necessary. The counter had been in existence for several years
without any prior accident and was deliberately placed at a corner to
avoid such accidents. Truth to tell, they acted without fault or
negligence for they had exercised due diligence on the matter. In
fact, the criminal case[10] for homicide through simple negligence
filed by private respondents against the individual petitioners was
dismissed; a verdict of acquittal was rendered in their favor.
The Court of Appeals, however, decided in favor of private
respondents and reversed the appealed judgment.
It found that petitioners were negligent in maintaining a
structurally dangerous counter. The counter was shaped like an
inverted L[11] with a top wider than the base. It was top heavy and
the weight of the upper portion was neither evenly distributed nor
supported by its narrow base. Thus, the counter was defective,
unstable and dangerous; a downward pressure on the overhanging
portion or a push from the front could cause the counter to fall. Two
former employees of petitioners had already previously brought to
the attention of the management the danger the counter could
cause. But the latter ignored their concern. The Court of Appeals
faulted the petitioners for this omission, and concluded that the
incident that befell ZHIENETH could have been avoided had
petitioners repaired the defective counter. It was inconsequential
that the counter had been in use for some time without a prior
incident.
The Court of Appeals declared that ZHIENETH, who was below
seven (7) years old at the time of the incident, was absolutely
incapable of negligence or other tort. It reasoned that since a child
under nine (9) years could not be held liable even for an intentional
wrong, then the six-year old ZHIENETH could not be made to account
for a mere mischief or reckless act. It also absolved CRISELDA of any
negligence, finding nothing wrong or out of the ordinary in
momentarily allowing ZHIENETH to walk while she signed the
document at the nearby counter.
The Court of Appeals also rejected the testimonies of the
witnesses of petitioners. It found them biased and prejudiced. It
instead gave credit to the testimony of disinterested witness
Gonzales. The Court of Appeals then awarded P99,420.86 as actual
damages, the amount representing the hospitalization expenses
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Atty. Giancarlo Alicaya | SY 2018-19
incurred by private respondents as evidenced by the hospital's
statement of account.[12] It denied an award for funeral expenses
for lack of proof to substantiate the same. Instead, a compensatory
damage of P50,000 was awarded for the death of ZHIENETH.
Issue:
1 - Whether or not the death of Zhieneth was accidental or
attributable to negligence.
2 - In case of a finding of negligence, whether or not the same
was attributable to private respondents for maintaining defective
counter or to Criselda and Zhieneth for failing to exercise due and
reasonable care while inside the store premises.
Ruling:
An accident pertains to an unforeseen event in which no fault
or negligence attaches to the defendant. It is a fortuitous
circumstance, event or happening; an event happening without any
human agency, or if happening wholly or partly through human
agency, an event which under the circumstances is unusual or
unexpected by the person to whom it happens.
On the other hand, negligence is the omission to do something
which a reasonable man, guided by those considerations which
ordinarily regulate the conduct of human affairs, would do, or the
doing of something which a prudent and reasonable man would not
do. Negligence is the failure to observe, for the protection of the
interest of another person, that degree of care, precaution and
vigilance which the circumstances justly demand, whereby such
other person suffers injury.
Accident and negligence are intrinsically contradictory; one
cannot exist with the other. Accident occurs when the person
concerned is exercising ordinary care, which is not caused by fault
of any person and which could not have been prevented by any
means suggested by common prudence.
The test in determining the existence of negligence is
enunciated in the landmark case of Picart v. Smith, thus: Did the
defendant in doing the alleged negligent act use that reasonable
care and caution which an ordinarily prudent person would have
used in the same situation? If not, then he is guilty of negligence.
We rule that the tragedy which befell ZHIENETH was no
accident and that ZHIENETHs death could only be attributed to
negligence.
This testimony of Gonzales pertaining to ZHIENETHs statement
formed (and should be admitted as) part of the res gestae under
Section 42, Rule 130 of the Rules of Court, thus:
Part of res gestae. Statements made by a person while a
startling occurrence is taking place or immediately prior or
subsequent thereto with respect to the circumstances thereof, may
be given in evidence as part of the res gestae. So, also, statements
accompanying an equivocal act material to the issue, and giving it a
legal significance, may be received as part of the res gestae.
It is axiomatic that matters relating to declarations of pain or
suffering and statements made to a physician are generally
considered declarations and admissions.[23] All that is required for
their admissibility as part of the res gestae is that they be made or
uttered under the influence of a startling event before the declarant
had the time to think and concoct a falsehood as witnessed by the
person who testified in court. Under the circumstances thus
described, it is unthinkable for ZHIENETH, a child of such tender age
and in extreme pain, to have lied to a doctor whom she trusted with
her life. We therefore accord credence to Gonzales testimony on
the matter, i.e., ZHIENETH performed no act that facilitated her
tragic death. Sadly, petitioners did, through their negligence or
omission to secure or make stable the counters base.
Without doubt, petitioner Panelo and another store supervisor
were personally informed of the danger posed by the unstable

counter. Yet, neither initiated any concrete action to remedy the
situation nor ensure the safety of the stores employees and patrons
as a reasonable and ordinary prudent man would have done. Thus, as
confronted by the situation petitioners miserably failed to discharge
the due diligence required of a good father of a family.
Anent the negligence imputed to ZHIENETH, we apply the
conclusive presumption that favors children below nine (9) years old
in that they are incapable of contributory negligence. In his
book,[28] former Judge Cezar S. Sangco stated:
In our jurisdiction, a person under nine years of age is
conclusively presumed to have acted without discernment, and is,
on that account, exempt from criminal liability. The same
presumption and a like exemption from criminal liability obtains in
a case of a person over nine and under fifteen years of age, unless it
is shown that he has acted with discernment. Since negligence may
be a felony and a quasi-delict and required discernment as a
condition of liability, either criminal or civil, a child under nine years
of age is, by analogy, conclusively presumed to be incapable of
negligence; and that the presumption of lack of discernment or
incapacity for negligence in the case of a child over nine but under
fifteen years of age is a rebuttable one, under our law. The rule,
therefore, is that a child under nine years of age must be
conclusively presumed incapable of contributory negligence as a
matter of law. [Emphasis supplied]
Even if we attribute contributory negligence to ZHIENETH and
assume that she climbed over the counter, no injury should have
occurred if we accept petitioners theory that the counter was stable
and sturdy. For if that was the truth, a frail six-year old could not
have caused the counter to collapse. The physical analysis of the
counter by both the trial court and Court of Appeals and a scrutiny of
the evidence on record reveal otherwise, i.e., it was not durable after
all. Shaped like an inverted L, the counter was heavy, huge, and its
top laden with formica. It protruded towards the customer waiting
area and its base was not secured.
CRISELDA too, should be absolved from any contributory
negligence. Initially, ZHIENETH held on to CRISELDAs waist, later to
the latters hand.[31] CRISELDA momentarily released the childs hand
from her clutch when she signed her credit card slip. At this precise
moment, it was reasonable and usual for CRISELDA to let go of her
child. Further, at the time ZHIENETH was pinned down by the
counter, she was just a foot away from her mother; and the
gift-wrapping counter was just four meters away from CRISELDA.[32]
The time and distance were both significant. ZHIENETH was near her
mother and did not loiter as petitioners would want to impress upon
us. She even admitted to the doctor who treated her at the hospital
that she did not do anything; the counter just fell on her.
WHEREFORE, in view of all the foregoing, the instant petition is
DENIED and the challenged decision of the Court of Appeals of 17
June 1996 in C.A. G.R. No. CV 37937 is hereby AFFIRMED.
Child Learning v. Tagorio, 426 SCRA 236
Facts:
The complaint alleged that during the school year 1990-1991,
Timothy was a Grade IV student at Marymount School, an academic
institution operated and maintained by Child Learning Center, Inc.
(CLC). In the afternoon of March 5, 1991, between 1 and 2 p.m.,
Timothy entered the boys comfort room at the third floor of the
Marymount building to answer the call of nature. He, however, found
himself locked inside and unable to get out. Timothy started to panic
and so he banged and kicked the door and yelled several times for
help. When no help arrived he decided to open the window to call for
help. In the process of opening the window, Timothy went right
through and fell down three stories. Timothy was hospitalized and
given medical treatment for serious multiple physical injuries.
An action under Article 2176 of the Civil Code was filed by
respondents against the CLC, the members of its Board of Directors,
namely Spouses Edgardo and Sylvia Limon, Alfonso Cruz, Carmelo
Narciso and Luningning Salvador, and the Administrative Officer of
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Atty. Giancarlo Alicaya | SY 2018-19
Marymount School, Ricardo Pilao. In its defense, CLC maintained that
there was nothing defective about the locking mechanism of the
door and that the fall of Timothy was not due to its fault or
negligence. CLC further maintained that it had exercised the due care
and diligence of a good father of a family to ensure the safety,
well-being and convenience of its students.
Trial court ruled in favor of respondents and ordered
petitioners CLC and Spouses Limon to pay respondents, jointly and
severally.
CA affirmed.
Issue:
Whether or not CLC is liable. - YES
Ruling:
In every tort case filed under Article 2176 of the Civil Code,
plaintiff has to prove by a preponderance of evidence: (1) the
damages suffered by the plaintiff; (2) the fault or negligence of the
defendant or some other person for whose act he must respond;
and (3) the connection of cause and effect between the fault or
negligence and the damages incurred.
Fault, in general, signifies a voluntary act or omission which
causes damage to the right of another giving rise to an obligation on
the part of the actor to repair such damage. Negligence is the
failure to observe for the protection of the interest of another
person that degree of care, precaution and vigilance which the
circumstances justly demand. Fault requires the execution of a
positive act which causes damage to another while negligence
consists of the omission to do acts which result in damage to
another.
In this tort case, respondents contend that CLC failed to provide
precautionary measures to avoid harm and injury to its students in
two instances: (1) failure to fix a defective door knob despite having
been notified of the problem; and (2) failure to install safety grills on
the window where Timothy fell from.
The trial court found that the lock was defective on March 5,
1991. The Court of Appeals held that there was no reason to disturb
the factual assessment.
The fact, however, that Timothy fell out through the window
shows that the door could not be opened from the inside. That
sufficiently points to the fact that something was wrong with the
door, if not the door knob, under the principle of res ipsa loquitor.
The doctrine of res ipsa loquitor applies where (1) the accident was
of such character as to warrant an inference that it would not have
happened except for the defendants negligence; (2) the accident
must have been caused by an agency or instrumentality within the
exclusive management or control of the person charged with the
negligence complained of; and (3) the accident must not have been
due to any voluntary action or contribution on the part of the
person injured. Petitioners are clearly answerable for failure to see
to it that the doors of their school toilets are at all times in working
condition. The fact that a student had to go through the window,
instead of the door, shows that something was wrong with the door.
Petitioners argument that CLC exercised the due diligence of a
good father of a family in the selection and supervision of its
employees is not decisive. Due diligence in the selection and
supervision of employees is applicable where the employer is being
held responsible for the acts or omissions of others under Article
2180 of the Civil Code. In this case, CLCs liability is under Article
2176 of the Civil Code, premised on the fact of its own negligence in
not ensuring that all its doors are properly maintained.
Our pronouncement that Timothy climbed out of the window
because he could not get out using the door, negates petitioners
other contention that the proximate cause of the accident was
Timothys own negligence. The injuries he sustained from the fall

were the product of a natural and continuous sequence, unbroken
by any intervening cause, that originated from CLCs own
negligence.
We, however, agree with petitioners that there was no basis
to pierce CLCs separate corporate personality. To disregard the
corporate existence, the plaintiff must prove: (1) Control by the
individual owners, not mere majority or complete stock ownership,
resulting in complete domination not only of finances but of policy
and business practice in respect to a transaction so that the
corporate entity as to this transaction had at the time no separate
mind, will or existence of its own; (2) such control must have been
used by the defendant to commit fraud or wrong, to perpetuate the
violation of a statutory or other positive legal duty, or a dishonest
and unjust act in contravention of the plaintiffs legal right; and (3)
the control and breach of duty must proximately cause the injury or
unjust loss complained of. The absence of these elements prevents
piercing the corporate veil.[13] The evidence on record fails to show
that these elements are present, especially given the fact that
plaintiffs complaint had pleaded that CLC is a corporation duly
organized and existing under the laws of the Philippines.
On 9th and 10th points raised concerning the award of
damages, the resolution would rest on factual determinations by the
trial court, affirmed by the Court of Appeals, and no legal issue
warrants our intervention.
WHEREFORE, the petition is partly granted and the Decision and
Resolution of the Court of Appeals in CA-G.R. CV No. 50961 dated
September 28, 2001 and November 23, 2001, respectively, are
MODIFIED in that petitioners Spouses Edgardo and Sylvia Limon are
absolved from personal liability. The Decision and Resolution are
AFFIRMED in all other respects. No pronouncement as to costs.
c. Elements
(a) DAMAGES suffered by the plaintiff;
(b) FAULT or NEGLIGENCE of the defendant, or some
other person for whose acts he must respond;
(c) CONNECTION OF CAUSE AND EFFECT between the
fault or negligence of the defendant and the
damages incurred by the plaintiff
Chan, Jr. V. Iglesia ni Cristo, Inc., GR No. 160283, October 14, 2005
The Aringay Shell Gasoline Station is owned by the petitioner. It
is located in Sta. Rita East, Aringay, La Union, and bounded on the
south by a chapel of the respondent.
The gasoline station supposedly needed additional sewerage
and septic tanks for its washrooms. In view of this, the services of
Dioscoro Ely Yoro (Yoro), a retired general of the Armed Forces of the
Philippines, was procured by petitioner, as the former was allegedly a
construction contractor in the locality.
Diggings thereafter commenced. After some time, petitioner
was informed by the members of the respondent that the digging
traversed and penetrated a portion of the land belonging to the
latter. The foundation of the chapel was affected as a tunnel was dug
directly under it to the damage and prejudice of the respondent.
On 18 April 1995, a Complaint[5] against petitioner and a
certain Teofilo Oller, petitioners engineer, was filed by the
respondent before the RTC, La Union, Branch 31, docketed therein as
Civil Case No. A-1646. Petitioner and Oller filed an Answer with
Third-Party Complaint[6] impleading Yoro as third-party defendant.
After four years of hearing the case, the trial court promulgated
its Decision[11] holding that the diggings were not intended for the
construction of sewerage and septic tanks but were made to
construct tunnels to find hidden treasure.
Court of Appeals affirmed the trial court but with modifications.
Issue:
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Atty. Giancarlo Alicaya | SY 2018-19
WHETHER OR NOT THE MEMORANDUM OF AGREEMENT
ENTERED INTO BY THE PETITIONER AND YORO HAS THE EFFECT OF
MAKING THE LATTER SOLELY RESPONSIBLE FOR DAMAGES TO THE
RESPONDENT.
Ruling:
The findings of the trial court and the Court of Appeals on this
point are in complete unison. Petitioner and Yoro were in quest for
hidden treasure[26] and, undoubtedly, they were partners in this
endeavor.
We find no compelling reason to disturb this particular
conclusion reached by the Court of Appeals. The issue, therefore,
must be ruled in the negative.
Article 2176 of the New Civil Code provides:
ART. 2176. Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for the
damage done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a quasi-delict and
is governed by the provisions of this Chapter.
Based on this provision of law, the requisites of quasi-delict
are the following:
(a) there must be an act or omission;
(b) such act or omission causes damage to another;
(c) such act or commission is caused by fault or negligence; &
(d) there is no pre-existing contractual relation between the
parties.
All the requisites are attendant in the instant case. The
tortious act was the excavation which caused damage to the
respondent because it was done surreptitiously within its premises
and it may have affected the foundation of the chapel. The
excavation on respondents premises was caused by fault. Finally,
there was no pre-existing contractual relation between the petitioner
and Yoro on the one hand, and the respondent on the other.
For the damage caused to respondent, petitioner and Yoro are
jointly liable as they are joint tortfeasors. Verily, the responsibility of
two or more persons who are liable for a quasi-delict is solidary.
The heavy reliance of petitioner in paragraph 4 of the MOA
cited earlier cannot steer him clear of any liability.
As a general rule, joint tortfeasors are all the persons who
command, instigate, promote, encourage, advise, countenance,
cooperate in, aid or abet the commission of a tort, or who approve
of it after it is done, if done for their benefit.[29]
Indubitably, petitioner and Yoro cooperated in committing the
tort. They even had provisions in their MOA as to how they would
divide the treasure if any is found within or outside petitioners
property line. Thus, the MOA, instead of exculpating petitioner from
liability, is the very noose that insures that he be so declared as
liable.
Besides, petitioner cannot claim that he did not know that the
excavation traversed the respondents property. In fact, he had two
(2) of his employees actually observe the diggings, his security guard
and his engineer Teofilo Oller.[30]
Coming now to the matter on damages, the respondent
questions the drastic reduction of the exemplary damages awarded
to it. It may be recalled that the trial court awarded exemplary
damages in the amount of P10,000,000.00 but same was reduced by
the Court of Appeals to P50,000.00.
Exemplary or corrective damages are imposed by way of
example or correction for the public good.[31] In quasi-delicts,
exemplary damages may be granted if the defendant acted with
gross negligence.[32] By gross negligence is meant such entire want

of care as to raise a presumption that the person in fault is
conscious of the probable consequences of carelessness, and is
indifferent, or worse, to the danger of injury to person or property
of others.
Surreptitiously digging under the respondents chapel which
may weaken the foundation thereof, thereby endangering the lives
and limbs of the people in worship, unquestionably amounts to
gross negligence. Not to mention the damage that may be caused to
the structure itself. The respondent may indeed be awarded
exemplary damages.
For such tortious act done with gross negligence, the Court feels
that the amount awarded by the Court of Appeals is inadequate. The
exemplary damages must correspondingly be increased to
P100,000.00.
WHEREFORE, the Decision of the Court of Appeals dated 25
September 2003 is AFFIRMED with MODIFICATION as to the award of
exemplary damages, which is hereby increased to P100,000.00. Costs
against petitioner.
Dra. Dela LLana v. Rebecca Biong, GR No. 182356, Dec. 4, 2013
On March 30, 2000, at around 11:00 p.m., Juan dela Llana was
driving a 1997 Toyota Corolla car along North Avenue, Quezon City.4
His sister, Dra. dela Llana, was seated at the front passenger
seat while a certain Calimlim was at the backseat.5
Juan stopped the car across the Veterans Memorial Hospital
when the signal light turned red. A few seconds after the car halted, a
dump truck containing gravel and sand suddenly rammed the car’s
rear end, violently pushing the car forward. Due to the impact, the
car’s rear end collapsed and its rear windshield was shattered. Glass
splinters flew, puncturing Dra. dela Llana. Apart from these minor
wounds, Dra. dela Llana did not appear to have suffered from any
other visible physical injuries.6
The traffic investigation report dated March 30, 2000 identified
the truck driver as Joel Primero. It stated that Joel was recklessly
imprudent in driving the truck.7
Joel later revealed that his employer was respondent Rebecca
Biong, doing business under the name and style of "Pongkay Trading"
and was engaged in a gravel and sand business.8
In the first week of May 2000, Dra. dela Llana began to feel mild
to moderate pain on the left side of her neck and shoulder. The pain
became more intense as days passed by. Her injury became more
severe. Her health deteriorated to the extent that she could no
longer move her left arm. On June 9, 2000, she consulted with Dr.
Rosalinda Milla, a rehabilitation medicine specialist, to examine her
condition. Dr. Milla told her that she suffered from a whiplash injury,
an injury caused by the compression of the nerve running to her left
arm and hand. Dr. Milla required her to undergo physical therapy to
alleviate her condition. Dra. dela Llana’s condition did not improve
despite three months of extensive physical therapy.
She then consulted other doctors, namely, Drs. Willie Lopez,
Leonor Cabral-Lim and Eric Flores, in search for a cure. Dr. Flores, a
neuro-surgeon, finally suggested that she undergo a cervical spine
surgery to release the compression of her nerve. On October 19,
2000, Dr. Flores operated on her spine and neck, between the C5 and
the C6 vertebrae.10
The operation released the impingement of the nerve, but
incapacitated Dra. dela Llana from the practice of her profession
since June 2000 despite the surgery.
Dra. dela Llana, on October 16, 2000, demanded from Rebecca
compensation for her injuries, but Rebecca refused to pay.12
Thus, on May 8, 2001, Dra. dela Llana sued Rebecca for
damages before the Regional Trial Court of Quezon City (RTC). She
alleged that she lost the mobility of her arm as a result of the
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Atty. Giancarlo Alicaya | SY 2018-19
vehicular accident and claimed ₱150,000.00 for her medical
expenses (as of the filing of the complaint) and an average monthly
income of ₱30,000.00 since June 2000. She further prayed for actual,
moral, and exemplary damages as well as attorney’s fees.13
At the trial, Dra. dela Llana presented herself as an ordinary
witness15 and Joel as a hostile witness.16
Dra. dela Llana reiterated that she lost the mobility of her arm
because of the vehicular accident. To prove her claim, she identified
and authenticated a medical certificate dated November 20, 2000
issued by Dr. Milla. The medical certificate stated that Dra. dela Llana
suffered from a whiplash injury. It also chronicled her clinical history
and physical examinations.17
Meanwhile, Joel testified that his truck hit the car because the
truck’s brakes got stuck.18
In defense, Rebecca testified that Dra. dela Llana was physically
fit and strong when they met several days after the vehicular
accident. She also asserted that she observed the diligence of a good
father of a family in the selection and supervision of Joel. She pointed
out that she required Joel to submit a certification of good moral
character as well as barangay, police, and NBI clearances prior to his
employment. She also stressed that she only hired Primero after he
successfully passed the driving skills test conducted by Alberto
Marcelo, a licensed driver-mechanic.19
Alberto also took the witness stand. He testified that he
checked the truck in the morning of March 30, 2000. He affirmed that
the truck was in good condition prior to the vehicular accident. He
opined that the cause of the vehicular accident was a damaged
compressor. According to him, the absence of air inside the tank
damaged the compressor.
RTC ruled in favor of Dra. Dela Llana and held that the
proximate cause of Dra. Dela Llana’s whiplash injury to be Joel’s
reckless driving.
It found that a whiplash injury is an injury caused by the sudden
jerking of the spine in the neck area. It pointed out that the massive
damage the car suffered only meant that the truck was
over-speeding. It maintained that Joel should have driven at a slower
pace because road visibility diminishes at night. He should have
blown his horn and warned the car that his brake was stuck and
could have prevented the collision by swerving the truck off the road.
It also concluded that Joel was probably sleeping when the collision
occurred as Joel had been driving for fifteen hours on that fateful
day. The RTC further declared that Joel’s negligence gave rise to the
presumption that Rebecca did not exercise the diligence of a good
father of a family in Joel's selection and supervision of Joel. Rebecca
was vicariously liable because she was the employer and she
personally chose him to drive the truck. On the day of the collision,
she ordered him to deliver gravel and sand to Muñoz Market,
Quezon City. The Court concluded that the three elements
necessary to establish Rebecca’s liability were present: (1) that the
employee was chosen by the employer, personally or through
another; (2) that the services were to be rendered in accordance
with orders which the employer had the authority to give at all
times; and (3) that the illicit act of the employee was on the
occasion or by reason of the functions entrusted to him. The RTC
thus awarded Dra. dela Llana the amounts of ₱570,000.00 as actual
damages, ₱250,000.00 as moral damages, and the cost of the suit.
The CA reversed the RTC ruling. It held that Dra. dela Llana
failed to establish a reasonable connection between the vehicular
accident and her whiplash injury by preponderance of evidence. It
noted that the interval between the date of the collision and the date
when Dra. dela Llana began to suffer the symptoms of her illness was
lengthy. It concluded that this interval raised doubts on whether
Joel’s reckless driving and the resulting collision in fact caused Dra.
dela Llana’s injury. It also declared that courts cannot take judicial
notice that vehicular accidents cause whiplash injuries. It observed
that Dra. dela Llana did not immediately visit a hospital to check if
she sustained internal injuries after the accident. Moreover, her

failure to present expert witnesses was fatal to her claim. It also gave
no weight to the medical certificate. The medical certificate did not
explain how and why the vehicular accident caused the injury.
Issue:
Whether Joel’s reckless driving is the proximate cause of Dra.
dela Llana’s whiplash injury.
Ruling:
Dra. dela Llana failed to establish her case by preponderance of
evidence.
Article 2176 of the Civil Code provides that "[w]hoever by act
or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual relation between
the parties, is a quasi-delict." Under this provision, the elements
necessary to establish a quasi-delict case are:
(1) damages to the plaintiff;
(2) negligence, by act or omission, of the defendant or by
some person for whose acts the defendant must respond, was
guilty; and
(3) the connection of cause and effect between such
negligence and the damages.
These elements show that the source of obligation in a
quasi-delict case is the breach or omission of mutual duties that
civilized society imposes upon its members, or which arise from
non-contractual relations of certain members of society to others.
Based on these requisites, Dra. dela Llana must first establish
by preponderance of evidence the three elements of quasi-delict
before we determine Rebecca’s liability as Joel’s employer.
She should show the chain of causation between Joel’s reckless
driving and her whiplash injury.
Only after she has laid this foundation can the presumption -
that Rebecca did not exercise the diligence of a good father of a
family in the selection and supervision of Joel - arise.30
Once negligence, the damages and the proximate causation
are established, this Court can then proceed with the application
and the interpretation of the fifth paragraph of Article 2180 of the
Civil Code.
Under Article 2176 of the Civil Code, in relation with the fifth
paragraph of Article 2180, "an action predicated on an employee’s
act or omission may be instituted against the employer who is held
liable for the negligent act or omission committed by his
employee."
The rationale for these graduated levels of analyses is that it is
essentially the wrongful or negligent act or omission itself which
creates the vinculum juris in extra-contractual obligations.
In civil cases, a party who alleges a fact has the burden of
proving it.
He who alleges has the burden of proving his allegation by
preponderance of evidence or greater weight of credible evidence.
The reason for this rule is that bare allegations,
unsubstantiated by evidence, are not equivalent to proof.
In short, mere allegations are not evidence.
In sum, Dra. dela Llana miserably failed to establish her cause
by preponderance of evidence. While we commiserate with her, our
solemn duty to independently and impartially assess the merits of
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Atty. Giancarlo Alicaya | SY 2018-19
the case binds us to rule against Dra. dela Llana’s favor. Her claim,
unsupported by prepondernace of evidence, is merely a bare
assertion and has no leg to stand on.
WHEREFORE, presmises considered, the assailed Decision dated
February 11, 2008 and Resolution dated March 31, 2008 of the Court
of Appeals are hereby AFFIRMED and the petition is hereby DENIED
for lack of merit.
SO ORDERED.
Taylor v. Manila Railroad, 16 Phil 8
On the 30th of September, 1905, plaintiff, with a boy named
Manuel Claparols, about 12 years of age, crossed the footbridge to
the Isla del Provisor, for the purpose of visiting one Murphy, an
employee of the defendant, who and promised to make them a
cylinder for a miniature engine. Finding on inquiry that Mr. Murphy
was not in his quarters, the boys, impelled apparently by youthful
curiosity and perhaps by the unusual interest which both seem to
have taken in machinery, spent some time in wandering about the
company's premises. The visit was made on a Sunday afternoon, and
it does not appear that they saw or spoke to anyone after leaving the
power house where they had asked for Mr. Murphy.
After watching the operation of the travelling crane used in
handling the defendant's coal, they walked across the open space in
the neighborhood of the place where the company dumped in the
cinders and ashes from its furnaces. Here they found some twenty or
thirty brass fulminating caps scattered on the ground. These caps are
approximately of the size and appearance of small pistol cartridges
and each has attached to it two long thin wires by means of which it
may be discharged by the use of electricity. They are intended for use
in the explosion of blasting charges of dynamite, and have in
themselves a considerable explosive power. After some discussion as
to the ownership of the caps, and their right to take them, the boys
picked up all they could find, hung them on stick, of which each took
end, and carried them home. After crossing the footbridge, they met
a little girl named Jessie Adrian, less than 9 years old, and all three
went to the home of the boy Manuel. The boys then made a series of
experiments with the caps. They trust the ends of the wires into an
electric light socket and obtained no result. They next tried to break
the cap with a stone and failed. Manuel looked for a hammer, but
could not find one. Then they opened one of the caps with a knife,
and finding that it was filled with a yellowish substance they got
matches, and David held the cap while Manuel applied a lighted
match to the contents. An explosion followed, causing more or less
serious injuries to all three. Jessie, who when the boys proposed
putting a match to the contents of the cap, became frightened and
started to run away, received a slight cut in the neck. Manuel had his
hand burned and wounded, and David was struck in the face by
several particles of the metal capsule, one of which injured his right
eye to such an extent as to the necessitate its removal by the
surgeons who were called in to care for his wounds.
The evidence does definitely and conclusively disclose how the
caps came to be on the defendant's premises, nor how long they had
been there when the boys found them. It appears, however, that
some months before the accident, during the construction of the
defendant's plant, detonating caps of the same size and kind as those
found by the boys were used in sinking a well at the power plant near
the place where the caps were found; and it also appears that at or
about the time when these caps were found, similarly caps were in
use in the construction of an extension of defendant's street car line
to Fort William McKinley. The caps when found appeared to the boys
who picked them up to have been lying for a considerable time, and
from the place where they were found would seem to have been
discarded as detective or worthless and fit only to be thrown upon
the rubbish heap.
No measures seems to have been adopted by the defendant
company to prohibit or prevent visitors from entering and walking
about its premises unattended, when they felt disposed so to do.
Trial court ruled in favor of plaintiff.
It is clear that the accident could not have happened and not

the fulminating caps been left exposed at the point where they were
found, or if their owner had exercised due care in keeping them in an
appropriate place; but it is equally clear that plaintiff would not have
been injured had he not, for his own pleasure and convenience,
entered upon the defendant's premises, and strolled around thereon
without the express permission of the defendant, and had he not
picked up and carried away the property of the defendant which he
found on its premises, and had he not thereafter deliberately cut
open one of the caps and applied a match to its contents.
But counsel for plaintiff contends that because of plaintiff's
youth and inexperience, his entry upon defendant company's
premises, and the intervention of his action between the negligent
act of defendant in leaving the caps exposed on its premises and the
accident which resulted in his injury should not be held to have
contributed in any wise to the accident, which should be deemed to
be the direct result of defendant's negligence in leaving the caps
exposed at the place where they were found by the plaintiff, and this
latter the proximate cause of the accident which occasioned the
injuries sustained by him.
Issue:
Whether a railroad company is liable for an injury received by
an infant of tender years, who from mere idle curiosity, or for the
purposes of amusement, enters upon the railroad company's
premises, at a place where the railroad company knew, or had good
reason to suppose, children would be likely to come, and there found
explosive signal torpedoes left unexposed by the railroad company's
employees, one of which when carried away by the visitor, exploded
and injured him; or where such infant found upon the premises a
dangerous machine, such as a turntable, left in such condition as to
make it probable that children in playing with it would be exposed to
accident or injury therefrom and where the infant did in fact suffer
injury in playing with such machine.
Ruling:
The great weight of authority holds the owner of the premises
liable.
As laid down in Railroad Co. vs. Stout (17 Wall. (84 U. S.), 657),
wherein the principal question was whether a railroad company was
liable for in injury received by an infant while upon its premises, from
idle curiosity, or for purposes of amusement, if such injury was,
under circumstances, attributable to the negligence of the company),
the principles on which these cases turn are that "while a railroad
company is not bound to the same degree of care in regard to mere
strangers who are unlawfully upon its premises that it owes to
passengers conveyed by it, it is not exempt from responsibility to such
strangers for injuries arising from its negligence or from its tortious
acts;" and that "the conduct of an infant of tender years is not to be
judged by the same rule which governs that of adult. While it is the
general rule in regard to an adult that to entitle him to recover
damages for an injury resulting from the fault or negligence of
another he must himself have been free from fault, such is not the
rule in regard to an infant of tender years. The care and caution
required of a child is according to his maturity and capacity only, and
this is to be determined in each case by the circumstances of the
case." --- TURNRABLE or TORPEDO case
The doctrine of the case of Railroad Company vs. Stout was
vigorously controverted and sharply criticized in several state courts,
and the supreme court of Michigan in the case of Ryan vs. Towar
(128 Mich., 463) formally repudiated and disapproved the doctrine of
the Turntable cases, especially that laid down in Railroad Company
vs. Stout, in a very able decision wherein it held, in the language of
the syllabus: (1) That the owner of the land is not liable to trespassers
thereon for injuries sustained by them, not due to his wanton or
willful acts; (2) that no exception to this rule exists in favor of children
who are injured by dangerous machinery naturally calculated to
attract them to the premises; (3) that an invitation or license to cross
the premises of another can not be predicated on the mere fact that
no steps have been taken to interfere with such practice; (4) that
there is no difference between children and adults as to the
TORTS AND DAMAGES
Atty. Giancarlo Alicaya | SY 2018-19
circumstances that will warrant the inference of an invitation or a
license to enter upon another's premises.
As we think we have shown, under the reasoning on which rests
the doctrine of the Turntable and Torpedo cases, no fault which
would relieve defendant of responsibility for injuries resulting from
its negligence can be attributed to the plaintiff, a well-grown boy of
15 years of age, because of his entry upon defendant's uninclosed
premises without express permission or invitation' but it is wholly
different question whether such youth can be said to have been free
from fault when he willfully and deliberately cut open the detonating
cap, and placed a match to the contents, knowing, as he undoubtedly
did, that his action would result in an explosion. On this point, which
must be determined by "the particular circumstances of this case,"
the doctrine laid down in the Turntable and Torpedo cases lends us
no direct aid, although it is worthy of observation that in all of the
"Torpedo" and analogous cases which our attention has been
directed, the record discloses that the plaintiffs, in whose favor
judgments have been affirmed, were of such tender years that they
were held not to have the capacity to understand the nature or
character of the explosive instruments which fell into their hands.
In the case at bar, plaintiff at the time of the accident was a
well-grown youth of 15, more mature both mentally and physically
than the average boy of his age; he had been to sea as a cabin boy;
was able to earn P2.50 a day as a mechanical draftsman thirty days
after the injury was incurred; and the record discloses throughout
that he was exceptionally well qualified to take care of himself. The
evidence of record leaves no room for doubt that, despite his denials
on the witness stand, he well knew the explosive character of the cap
with which he was amusing himself. The series of experiments made
by him in his attempt to produce an explosion, as described by the
little girl who was present, admit of no other explanation. His
attempt to discharge the cap by the use of electricity, followed by his
efforts to explode it with a stone or a hammer, and the final success
of his endeavors brought about by the application of a match to the
contents of the caps, show clearly that he knew what he was about.
Nor can there be any reasonable doubt that he had reason to
anticipate that the explosion might be dangerous, in view of the fact
that the little girl, 9 years of age, who was within him at the time
when he put the match to the contents of the cap, became
frightened and ran away.
True, he may not have known and probably did not know the
precise nature of the explosion which might be expected from the
ignition of the contents of the cap, and of course he did not
anticipate the resultant injuries which he incurred; but he well knew
that a more or less dangerous explosion might be expected from his
act, and yet he willfully, recklessly, and knowingly produced the
explosion. It would be going far to say that "according to his
maturity and capacity" he exercised such and "care and caution" as
might reasonably be required of him, or that defendant or anyone
else should be held civilly responsible for injuries incurred by him
under such circumstances.
The law fixes no arbitrary age at which a minor can be said to
have the necessary capacity to understand and appreciate the
nature and consequences of his own acts, so as to make it
negligence on his part to fail to exercise due care and precaution in
the commission of such acts; and indeed it would be impracticable
and perhaps impossible so to do, for in the very nature of things the
question of negligence necessarily depends on the ability of the
minor to understand the character of his own acts and their
consequences; and the age at which a minor can be said to have
such ability will necessarily depends of his own acts and their
consequences; and at the age at which a minor can be said to have
such ability will necessarily vary in accordance with the varying
nature of the infinite variety of acts which may be done by him. But
some idea of the presumed capacity of infants under the laws in
force in these Islands may be gathered from an examination of the
varying ages fixed by our laws at which minors are conclusively
presumed to be capable of exercising certain rights and incurring
certain responsibilities, though it can not be said that these
provisions of law are of much practical assistance in cases such as
that at bar, except so far as they illustrate the rule that the capacity

of a minor to become responsible for his own acts varies with the
varying circumstances of each case. Under the provisions of the
Penal Code a minor over fifteen years of age is presumed to be
capable of committing a crime and is to held criminally responsible
therefore, although the fact that he is less than eighteen years of
age will be taken into consideration as an extenuating circumstance
(Penal Code, arts. 8 and 9). At 10 years of age a child may, under
certain circumstances, choose which parent it prefers to live with
(Code of Civil Procedure, sec. 771). At 14 may petition for the
appointment of a guardian (Id., sec. 551), and may consent or
refuse to be adopted (Id., sec. 765). And males of 14 and females of
12 are capable of contracting a legal marriage (Civil Code, art. 83; G.
O., No. 68, sec. 1).
We are satisfied that the plaintiff in this case had sufficient
capacity and understanding to be sensible of the danger to which he
exposed himself when he put the match to the contents of the cap;
that he was sui juris in the sense that his age and his experience
qualified him to understand and appreciate the necessity for the
exercise of that degree of caution which would have avoided the
injury which resulted from his own deliberate act; and that the
injury incurred by him must be held to have been the direct and
immediate result of his own willful and reckless act, so that while it
may be true that these injuries would not have been incurred but
for the negligence act of the defendant in leaving the caps exposed
on its premises, nevertheless plaintiff's own act was the proximate
and principal cause of the accident which inflicted the injury.
The rule of the Roman law was: Quod quis ex culpa sua
damnum sentit, non intelligitur sentire. (Digest, book 50, tit. 17 rule
203.)
The Patidas contain the following provisions:
The just thing is that a man should suffer the damage which
comes to him through his own fault, and that he can not demand
reparation therefor from another. (Law 25, tit. 5, Partida 3.)
And they even said that when a man received an injury through
his own acts the grievance should be against himself and not against
another. (Law 2, tit. 7, Partida 2.)
According to ancient sages, when a man received an injury
through his own acts the grievance should be against himself and not
against another. (Law 2, tit. 7 Partida 2.)
And while there does not appear to be anything in the Civil
Code which expressly lays down the law touching contributory
negligence in this jurisdiction, nevertheless, the interpretation placed
upon its provisions by the supreme court of Spain, and by this court
in the case of Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep.,
359), clearly deny to the plaintiff in the case at bar the right to
recover damages from the defendant, in whole or in part, for the
injuries sustained by him.
We think it is quite clear that under the doctrine thus stated,
the immediate cause of the explosion, the accident which resulted
in plaintiff's injury, was in his own act in putting a match to the
contents of the cap, and that having "contributed to the principal
occurrence, as one of its determining factors, he can not recover."
d. Culpa Aquiliana v. Culpa Criminal v. Culpa Contractual
AQUILIANA CRIMINAL CONTRACTUAL
(Quasi-delict)
Source  Independent  Contract (breach
of a contract of contract by reason
of defendant’s failure
(extra-contract) to exercise due care
in its performance)
Act/om  Only of private  Crimes that
ission
concern affect public
interest
Law  Civil Code, by  Penal Code
means of punishes or
indemnificatio corrects the
TORTS AND DAMAGES
Atty. Giancarlo Alicaya | SY 2018-19
n, merely criminal act
repairs the
damage
 Include all acts  Covers only
in which “any acts where
kind of fault or there is a
negligence penal law
intervenes” covering them
Liability
 ER - subsidiary 
Sps. Batal v. Sps. Luz San Pedro, et.al., GR No. 164601, Sep. 27, 2006
This case originated from an action for damages filed with the
RTC by Spouses Luz San Pedro and Kenichiro Tominaga (respondents)
against Spouses Erlinda Batal and Frank Batal (petitioners) for failure
to exercise due care and diligence by the latter in the preparation of
a survey which formed the basis for the construction of a perimeter
fence that was later discovered to have encroached on a right of way.
The spouses Luz San Pedro (Luz) and Kenichiro Tominaga
(Kenichiro) are the owners of a parcel of land, on which their house
was erected, described as Lot 1509-C-3 with an area of 700 square
meters situated in Barangay Malis, Guiguinto, Bulacan. Said property
was acquired by them from one Guillermo Narciso as evidenced by a
Bilihan ng Bahagi ng Lupa dated March 18, 1992.
The spouses Luz and Kenichiro then contracted the services of
Frank Batal (Frank) who represented himself as a surveyor to conduct
a survey of their lot for the sum of P6,500.00. As Luz and Kenichiro
wanted to enclose their property, they again procured the services of
Frank for an additional fee of P1,500.00 in order to determine the
exact boundaries of the same by which they will base the
construction of their perimeter fence.
Consequently, Frank placed concrete monuments marked P.S.
on all corners of the lot which were used as guides by Luz and
Kenichiro in erecting a concrete fence measuring about eight (8) feet
in height and cost them P250,000.00 to build.
Sometime in 1996, a complaint was lodged against Luz and
Kenichiro before the barangay on the ground that the northern
portion of their fence allegedly encroached upon a designated
right-of-way known as Lot 1509-D. Upon verification with another
surveyor, Luz and Kenichiro found that their wall indeed overlapped
the adjoining lot. They also discovered that it was not Frank but his
wife Erlinda Batal (Erlinda), who is a licensed geodetic engineer.
During their confrontations before the barangay, Frank
admitted that he made a mistake and offered to share in the
expenses for the demolition and reconstruction of the questioned
portion of Luz and Kenichiros fence. He however failed to deliver on
his word, thus the filing of the instant suit.
In their defense, the defendants-spouses Frank and Erlinda
Batal submitted that Frank never represented himself to be a
licensed geodetic engineer. It was Erlinda who supervised her
husbands work [and t]hat the house and lot of plaintiffs, Luz and
Kenichiro, were already fenced even before they were contracted to
do a resurvey of the same and the laying out of the concrete
monuments. The spouses Frank and Erlinda also refuted the spouses
Luzs and Kenichiros allegation of negligence and averred that the
subject complaint was instituted to harass them.
RTC ruled in favor of Spouses San Pedro. The RTC found that
indeed the perimeter fence constructed by the respondents
encroached on the right-of-way in question; that the preponderance
of evidence supports the finding that the encroachment was caused
by the negligence of the petitioners; that, in particular, respondents
constructed the fence based on the concrete cyclone monuments
that were installed by petitioner Frank Batal and after he gave his
assurance that they can proceed accordingly; that the negligence in
the installation of the monuments was due to the fact that petitioner
Erlinda Batal, the one truly qualified, did not provide the needed
supervision over the work; and, lastly, that the testimonies of the
petitioners on the whole were not credible.

CA affirmed the decision of RTC. In concurring with the findings
of the RTC, the CA in addition held that the petitioners cannot claim
that the error of the construction ofthe fence was due to the
unilateral act of respondents in building the same without their
consent, since the former gave their word that the arrangement of
the monuments of title accurately reflected the boundaries of the
lot; and that, as a result, the northern portion of the fence had to be
demolished and rebuilt in order to correct the error.
Issue:
Whether a party having performed affirmative acts upon which
another person based his subsequent actions, cannot thereafter
refute his acts or renege on the effects of the same, to the prejudice
of the latter.
Ruling:
NO. The petitioners insist that there had been no error in their
resurvey, but rather, the error occurred in respondents fencing; that
the proximate cause of the damage had been respondents own
negligence such that the fencing was done unilaterally and solely by
them without the prior approval and supervision of the petitioners.
And to justify their case, the petitioners argue that the courts a quo
misapprehended the facts. Accordingly, they ask this Court to review
findings of fact. Well-established is the rule that factual findings of
the trial court and the CA are entitled to great weight and respect[9]
and will not be disturbed on appeal save in exceptional
circumstances,[10] none of which obtains in the present case.
Culpa, or negligence, may be understood in two different
senses: either as culpa aquiliana, which is the wrongful or negligent
act or omission which creates a vinculum juris and gives rise to an
obligation between two persons not formally bound by any other
obligation, or as culpa contractual, which is the fault or negligence
incident in the performance of an obligation which already existed,
and which increases the liability from such already existing
obligation.[13] Culpa aquiliana is governed by Article 2176 of the
Civil Code and the immediately following Articles; while culpa
contractual is governed by Articles 1170 to 1174 of the same Code.
Articles 1170 and 1173 provide:
ART. 1170. Those who in the performance of their obligations
are guilty of fraud, negligence, or delay, and those who in any
manner contravene the tenor thereof, are liable for damages.
ART. 1173. The fault or negligence of the obligor consists in
the omission of that diligence which is required by the nature of the
obligation and corresponds with the circumstances of the persons,
of the time and of the place. When negligence shows bad faith, the
provisions of articles 1171 and 2202, paragraph 2, shall apply.
If the law or contract does not state the diligence which is to
be observed in the performance, that which is expected of a good
father of a family shall be required.
In the present case, it is clear that the petitioners, in carrying
out their contractual obligations, failed to exercise the requisite
diligence in the placement of the markings for the concrete
perimeter fence that was later constructed. The placement of the
markings had been done solely by petitioner Frank Batal who is not a
geodetic engineer. It was later discovered that it was not he but his
wife, petitioner Erlinda Batal, who is the licensed geodetic engineer
and who is, therefore, the one qualified to do the work. Petitioner
Frank Batals installation of the concrete cyclone monuments had
been done without the adequate supervision of his wife, Erlinda. As a
result, the placement of the monuments did not accurately reflect
the dimensions of the lot. The respondents, upon assurance given by
petitioner Frank Batal that they could proceed with the construction
of the perimeter fence by relying on the purported accuracy of the
placement of the monuments, erected their fence which turned out
to encroach on an adjacent easement. Because of the encroachment,
the respondents had to demolish and reconstruct the fence and,
thus, suffered damages.
TORTS AND DAMAGES
Atty. Giancarlo Alicaya | SY 2018-19
Being guilty of a breach of their contract, petitioners are liable
for damages suffered by the respondents in accordance with
Articles 1170 and 2201 of the Civil Code,[16] which state:
Art. 1170. Those who in the performance of their obligations
are guilty of fraud, negligence, or delay and those who in any
manner contravene the tenor thereof are liable for damages
Art. 2201. In contracts and quasi-contracts, the damages for
which the obligor who acted in good faith is liable shall be those
that are the natural and probable consequences of the breach of
the obligation, and which the parties have foreseen or could have
reasonably foreseen at the time the obligation was constituted.
In case of fraud, bad faith, malice or wanton attitude, the
obligor shall be responsible for all damages which may be
reasonably attributed to the non-performance of the obligation.
WHEREFORE, the instant petition is DENIED and the assailed
Decision and Resolution of the Court of Appeals are AFFIRMED.
Culpa Aquiliana Culpa Contractual
Wrongful or negligent act Fault or negligence incident
or commission which creates a in the performance of an
vinculum juris and gives rise to obligation which already existed,
an obligation between two and which increases the liability
persons not formally bound by from such already existing
any other obligation obligation
Article 2176 and the immediately Article 1170 to 1174
following articles
Rakes v. Atlantic Gulf and Pacific Co., GR No. 1719, Jan. 23, 1907
This is an action for damages. The plaintiff, one of a gang of
eight negro laborers in the employment of the defendant, was at
work transporting iron rails from a barge in the harbor to the
company's yard near the malecon in Manila. Plaintiff claims that but
one hand car was used in this work. The defendant has proved that
there were two immediately following one another, upon which were
piled lengthwise seven rails, each weighing 560 pounds, so that the
ends of the rails lay upon two crosspieces or sills secured to the cars,
but without side pieces or guards to prevent them from slipping off.
According to the testimony of the plaintiff, the men were either in
the rear of the car or at its sides. According to that defendant, some
of them were also in front, hauling by a rope. At a certain spot at or
near the water's edge the track sagged, the tie broke, the car either
canted or upset, the rails slid off and caught the plaintiff, breaking his
leg, which was afterwards amputated at about the knee.
According to plaintiffs witnesses, a depression of the track,
varying from one half inch to one inch and a half, was therafter
apparent to the eye, and a fellow workman of the plaintiff swears
that the day before the accident he called the attention of McKenna,
the foreman, to it and asked by simply straightening out the
crosspiece, resetting the block under the stringer and renewing the
tie, but otherwise leaving the very same timbers as before. It has not
proven that the company inspected the track after the typhoon or
had any proper system of inspection.
In order to charge the defendant with negligence, it was
necessary to show a breach of duty on its part in failing either to
properly secure the load on iron to vehicles transporting it, or to
skillfully build the tramway or to maintain it in proper condition, or to
vigilantly inspect and repair the roadway as soon as the depression in
it became visible. It is upon the failure of the defendant to repair the
weakened track, after notice of its condition, that the judge below
based his judgment.
This case presents many important matters for our decision,
and first among them is the standard of duty which we shall establish
in our jurisprudence on the part of employees toward employees.
The lack or the harshness of legal rules on this subject has led
many countries to enact designed to put these relations on a fair
basis in the form of compensation or liability laws or the institution

of insurance. In the absence of special legislation we find no
difficulty in so applying the general principles of our law as to work
out a just result.
Article 1092 of the Civil Code provides:
Civil obligations, arising from crimes or misdemeanors, shall
be governed by the provisions of the Penal Code.
And article 568 of the latter code provides:
He who shall execute through reckless negligence an act that if
done with malice would constitute a grave crime, shall be punished.
And article 590 provides that the following shall be punished:
4. Those who by simple imprudence or negligence, without
committing any infraction of regulations, shall cause an injury
which, had malice intervened, would have constituted a crime or
misdemeanor.
And finally by articles 19 and 20, the liability of owners and
employers for the faults of their servants and representatives is
declared to be civil and subsidiary in its character.
It is contented by the defendant, as its first defense to the
action, that the necessary conclusion from these collated laws is that
the remedy for injuries through negligence lies only in a criminal
action in which the official criminally responsible must be made
primarily liable and his employer held only subsidiarily to him.
According to this theory the plaintiff should have procured the arrest
of the representative of the company accountable for not repairing
the tract, and on his prosecution a suitable fine should have been
imposed, payable primarily by him and secondarily by his employer.
As an answer to the argument urged in this particular action it
may be sufficient to point out that nowhere in our general statutes is
the employer penalized for failure to provide or maintain safe
appliances for his workmen. His obligation therefore is one "not
punished by the law " and falls under civil rather than criminal
jurisprudence. But the answer may be a broader one. We should be
reluctant, under any conditions, to adopt a forced construction of
these scientific codes, such as is proposed by the defendant, that
would rob some of these articles of effect, would shut out litigants
their will from the civil courts, would make the assertion of their
rights dependent upon the selection for prosecution of the proper
criminal offender, and render recovery doubtful by reason of the
strict rules of proof prevailing in criminal actions.
An examination of this topic might be carried much further, but
the citations of these articles suffices to show that the civil liability
was not intended to be merged in the criminal nor even to be
suspended thereby, except as expressly provided by law. Where an
individual is civilly liable for a negligent act or omission, it is not
required that the inured party should seek out a third person
criminally liable whose prosecution must be a condition precedent
to the enforcement of the civil right.
Under article 20 of the Penal Code the responsibility of an
employer may be regarded as subsidiary in respect of criminal
actions against his employees only while they are process of
prosecution, or in so far as they determinate the existence of the
criminal act from which liability arises, and his obligation under the
civil law and its enforcement in the civil courts is not barred thereby
unless by election of the injured person. Inasmuch as no criminal in
question, the provisions of the Penal Code can not affect this
action. This construction renders it unnecessary to finally determine
here whether this subsidiary civil liability in penal actions survived
the laws that fully regulated it or has been abrogated by the
American civil and criminal procedure now in force in the Philippines.
The difficulty in construing the articles of the code above cited
in this case appears from the briefs before us to have arisen from the
interpretation of the words of article 1093, "fault or negligence not
punished by law," as applied to the comprehensive definition of
TORTS AND DAMAGES
Atty. Giancarlo Alicaya | SY 2018-19
offenses in articles 568 and 590 of the Penal Code. It has been shown
that the liability of an employer arising out of his relation to his
employee who is the offender is not to be regarded as derived from
negligence punished by the law, within the meaning of articles 1092
and 1093. More than this, however, it can not be said to fall within
the class of acts unpunished by the law, the consequences of which
are regulated by articles 1902 and 1903 of the Civil Code. The acts to
which these articles are applicable are understood to be those and
growing out of preexisting duties of the parties to one another. But
were relations already formed give rise to duties, whether springing
from contract or quasi contract, then breaches of those duties are
subject to articles 1101, 1103, and 1104, of the same code. A typical
application of the distinction may be found in the consequences of a
railway accident due to defective machinery supplied by the
employer. His liability to his employee would arise out of the contract
of employment, that to the passengers out of the contract for
passage. while that to that injured bystander would originate in the
negligent act itself. This distinction is thus clearly set forth by
Manresa in his commentary on article 1093.
We are with reference to such obligations, that culpa, or
negligence, may be understood in two difference senses; either as
culpa, substantive and independent, which on account of its origin
arises in an obligation between two persons not formerly bound by
any other obligation; or as an incident in the performance of an
obligation; or as already existed, which can not be presumed to
exist without the other, and which increases the liability arising
from the already exiting obligation.
Of these two species of culpa the first one mentioned, existing
by itself, may be also considered as a real source of an independent
obligation, and, as chapter 2, title 16 of this book of the code is
devoted to it, it is logical to presume that the reference contained
in article 1093 is limited thereto and that it does not extend to
those provisions relating to the other species of culpa (negligence),
the nature of which we will discuss later. (Vol. 8, p. 29.)
And in his commentary on articles 1102 and 1104 he says that
these two species of negligence may be somewhat inexactly
described as contractual and extra-contractual, the letter being the
culpa aquiliana of the Roman law and not entailing so strict an
obligation as the former. This terminology is unreservedly accepted
by Sanchez-Roman (Derecho Civil, fourth section, Chapter XI, Article
II, No. 12), and the principle stated is supported be decisions of the
supreme court of Spain, among them those of November 20, 1896
(80 Jurisprudencia Civil, No. 151), and June 27, 1894 (75
Jurisprudencia Civil, No. 182). The contract is one for hire and not
one of mandate. (March 10, 1897, 81 Jurisprudencia Civil, No. 107.)
This contractual obligation, implied from the relation and
perhaps so inherent in its nature to be invariable by the parties,
binds the employer to provide safe appliances for the use of the
employee, thus closely corresponding to English and American Law.
On these principles it was the duty of the defendant to build and to
maintain its track in reasonably sound condition, so as to protect its
workingmen from unnecessary danger. It is plain that in one respect
or the other it failed in its duty, otherwise the accident could not
have occurred; consequently the negligence of the defendant is
established.
Issue:
Of the negligence of the plaintiff, contributing to the accident,
to what extent it existed in fact and what legal effect is to be given it.
In two particulars is he charged with carelessness:
First. That having noticed the depression in the track he
continued his work; and
Second. That he walked on the ends of the ties at the side of
the car instead of along the boards, either before or behind it.
Ruling:
As to the first point, the depression in the track night indicate

either a serious or a rival difficulty. There is nothing in the evidence
to show that the plaintiff did or could see the displaced timber
underneath the sleeper. The claim that he must have done so is a
conclusion drawn from what is assumed to have been a probable
condition of things not before us, rather than a fair inference from
the testimony. While the method of construction may have been
known to the men who had helped build the road, it was otherwise
with the plaintiff who had worked at this job less than two days. A
man may easily walk along a railway without perceiving a
displacement of the underlying timbers. The foreman testified that
he knew the state of the track on the day of the accident and that it
was then in good condition, and one Danridge, a witness for the
defendant, working on the same job, swore that he never noticed the
depression in the track and never saw any bad place in it. The sagging
of the track this plaintiff did perceive, but that was reported in his
hearing to the foreman who neither promised nor refused to repair
it. His lack of caution in continuing at his work after noticing the
slight depression of the rail was not of so gross a nature as to
constitute negligence, barring his recovery under the severe
American rule. On this point we accept the conclusion of the trial
judge who found as facts that "the plaintiff did not know the cause
of the one rail being lower than then other" and "it does not appear
in this case that the plaintiff knew before the accident occurred that
the stringers and rails joined in the same place."
Were we not disposed to agree with these findings they would,
nevertheless, be binding upon us, because not "plainly and
manifestly against the weight of evidence," as those words of section
497, paragraph 3 of the Code of Civil Procedure were interpreted by
the Supreme Court of the United States in the De la Rama case (201
U. S., 303).
In respect of the second charge of negligence against the
plaintiff, the judgment below is not so specific. While the judge
remarks that the evidence does not justify the finding that the car
was pulled by means of a rope attached to the front end or to the
rails upon it, and further that the circumstances in evidence make it
clear that the persons necessary to operate the car could not walk
upon the plank between the rails and that, therefore, it was
necessary for the employees moving it to get hold upon it as best
they could, there is no specific finding upon the instruction given by
the defendant to its employees to walk only upon the planks, nor
upon the necessity of the plaintiff putting himself upon the ties at the
side in order to get hold upon the car. Therefore the findings of the
judge below leave the conduct of the plaintiff in walking along the
side of the loaded car, upon the open ties, over the depressed track,
free to our inquiry.
While the plaintiff and his witnesses swear that not only were
they not forbidden to proceed in this way, but were expressly
directed by the foreman to do so, both the officers of the company
and three of the workmen testify that there was a general
prohibition frequently made known to all the gang against walking by
the side of the car, and the foreman swears that he repeated the
prohibition before the starting of this particular load. On this
contradiction of proof we think that the preponderance is in favor of
the defendant's contention to the extent of the general order being
made known to the workmen. If so, the disobedience of the plaintiff
in placing himself in danger contributed in some degree to the
injury as a proximate, although not as its primary cause. This
conclusion presents sharply the question, What effect is to be given
such an act of contributory negligence? Does it defeat a recovery,
according to the American rule, or is it to be taken only in reduction
of damages?
While a few of the American States have adopted to a greater
or less extent the doctrine of comparative negligence, allowing a
recovery by a plaintiff whose own act contributed to his injury,
provided his negligence was slight as compared with that of the
defendant, and some others have accepted the theory of
proportional damages, reducing the award to a plaintiff in
proportion to his responsibility for the accident, yet the
overwhelming weight of adjudication establishes the principle in
American jurisprudence that any negligence, however slight, on the
part of the person injured which is one of the causes proximately
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Atty. Giancarlo Alicaya | SY 2018-19
contributing to his injury, bars his recovery. (English and American
Encyclopedia of law, Titles "Comparative Negligence" and
Contributory Negligence.")
In Grant Trunk Railway Company vs. Ives (144 U. S., 408, at page
429) the Supreme Court of the United States thus authoritatively
states the present rule of law:
Although the defendant's' negligence may have been the
primary cause of the injury complained of, yet an action for such
injury can not be maintained if the proximate and immediate cause
of the injury can be traced to the want of ordinary care and caution
in the person injured; subject to this qualification, which has grown
up in recent years (having been first enunciated in Davies vs. Mann,
10 M. & W., 546) that the contributory negligence of the party
injured will not defeat the action if it be shown that the defendant
might, by the exercise of reasonable care and prudence, have
avoided the consequences of the injured party's negligence.
********************************************************
Barredo and Garcia v. Almario, GR No. L-48006, July 8, 1942
This case comes up from the Court of Appeals which held the
petitioner herein, Fausto Barredo, liable in damages for the death of
Faustino Garcia caused by the negligence of Pedro Fontanilla, a taxi
driver employed by said Fausto Barredo.
At about half past one in the morning of May 3, 1936, on the
road between Malabon and Navotas, Province of Rizal, there was a
head-on collision between a taxi of the Malate Taxicab driven by
Pedro Fontanilla and a carretela guided by Pedro Dimapalis. The
carretela was overturned, and one of its passengers, 16-year-old boy
Faustino Garcia, suffered injuries from which he died two days later.
A criminal action was filed against Fontanilla in the Court of First
Instance of Rizal, and he was convicted and sentenced to an
indeterminate sentence of one year and one day to two years of
prision correccional. The court in the criminal case granted the
petition that the right to bring a separate civil action be reserved. The
Court of Appeals affirmed the sentence of the lower court in the
criminal case. Severino Garcia and Timotea Almario, parents of the
deceased on March 7, 1939, brought an action in the Court of First
Instance of Manila against Fausto Barredo as the sole proprietor of
the Malate Taxicab and employer of Pedro Fontanilla. On July 8,
1939, the Court of First Instance of Manila awarded damages in favor
of the plaintiffs for P2,000 plus legal interest from the date of the
complaint. This decision was modified by the Court of Appeals by
reducing the damages to P1,000 with legal interest from the time the
action was instituted. It is undisputed that Fontanilla 's negligence
was the cause of the mishap, as he was driving on the wrong side of
the road, and at high speed. As to Barredo's responsibility, the Court
of Appeals found:
... It is admitted that defendant is Fontanilla's employer. There
is proof that he exercised the diligence of a good father of a family to
prevent damage. (See p. 22, appellant's brief.) In fact it is shown he
was careless in employing Fontanilla who had been caught several
times for violation of the Automobile Law and speeding (Exhibit A) —
violation which appeared in the records of the Bureau of Public
Works available to be public and to himself. Therefore, he must
indemnify plaintiffs under the provisions of article 1903 of the Civil
Code.
The main theory of the defense is that the liability of Fausto
Barredo is governed by the Revised Penal Code; hence, his liability is
only subsidiary, and as there has been no civil action against Pedro
Fontanilla, the person criminally liable, Barredo cannot be held
responsible in the case. The Court of Appeals holds that the
petitioner is being sued for his failure to exercise all the diligence of a
good father of a family in the selection and supervision of Pedro
Fontanilla to prevent damages suffered by the respondents.
Issue:
Whether the plaintiffs may bring this separate civil action
against Fausto Barredo, thus making him primarily and directly,

responsible under article 1903 of the Civil Code as an employer of
Pedro Fontanilla. (The defendant maintains that Fontanilla's
negligence being punishable by the Penal Code, his (defendant's)
liability as an employer is only subsidiary, according to said Penal
code, but Fontanilla has not been sued in a civil action and his
property has not been exhausted.)
Ruling:
Authorities support the proposition that a quasi-delict or
"culpa aquiliana " is a separate legal institution under the Civil Code
with a substantivity all its own, and individuality that is entirely
apart and independent from delict or crime. Upon this principle and
on the wording and spirit article 1903 of the Civil Code, the primary
and direct responsibility of employers may be safely anchored.
The pertinent provisions of the Civil Code and Revised Penal
Code are as follows:
CIVIL CODE
ART. 1089 Obligations arise from law, from contracts
and quasi-contracts, and from acts and omissions which are
unlawful or in which any kind of fault or negligence
intervenes.
xxx xxx xxx
ART. 1092. Civil obligations arising from felonies or
misdemeanors shall be governed by the provisions of the
Penal Code.
ART. 1093. Those which are derived from acts or
omissions in which fault or negligence, not punishable by law,
intervenes shall be subject to the provisions of Chapter II, Title
XVI of this book.
xxx xxx xxx
ART 1902. Any person who by an act or omission causes
damage to another by his fault or negligence shall be liable for
the damage so done.
ART. 1903. The obligation imposed by the next preceding
article is enforcible, not only for personal acts and omissions,
but also for those of persons for whom another is responsible.
The father and in, case of his death or incapacity, the
mother, are liable for any damages caused by the minor
children who live with them.
Guardians are liable for damages done by minors or
incapacitated persons subject to their authority and living with
them.
Owners or directors of an establishment or business are
equally liable for any damages caused by their employees
while engaged in the branch of the service in which employed,
or on occasion of the performance of their duties.
The State is subject to the same liability when it acts
through a special agent, but not if the damage shall have been
caused by the official upon whom properly devolved the duty
of doing the act performed, in which case the provisions of the
next preceding article shall be applicable.
Finally, teachers or directors of arts trades are liable for
any damages caused by their pupils or apprentices while they
are under their custody.
The liability imposed by this article shall cease in case the
persons mentioned therein prove that they are exercised all
the diligence of a good father of a family to prevent the
damage.
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ART. 1904. Any person who pays for damage caused by
his employees may recover from the latter what he may have
paid.
REVISED PENAL CODE
ART. 100. Civil liability of a person guilty of felony. —
Every person criminally liable for a felony is also civilly liable.
ART. 101. Rules regarding civil liability in certain cases. —
The exemption from criminal liability established in
subdivisions 1, 2, 3, 5, and 6 of article 12 and in subdivision 4
of article 11 of this Code does not include exemption from civil
liability, which shall be enforced to the following rules:
First. In cases of subdivision, 1, 2 and 3 of article 12 the
civil liability for acts committed by any imbecile or insane
person, and by a person under nine years of age, or by one
over nine but under fifteen years of age, who has acted
without discernment shall devolve upon those having such
person under their legal authority or control, unless it appears
that there was no fault or negligence on their part.
Should there be no person having such insane, imbecile
or minor under his authority, legal guardianship, or control, or
if such person be insolvent, said insane, imbecile, or minor
shall respond with their own property, excepting property
exempt from execution, in accordance with the civil law.
Second. In cases falling within subdivision 4 of article 11,
the person for whose benefit the harm has been prevented
shall be civilly liable in proportion to the benefit which they
may have received.
The courts shall determine, in their sound discretion, the
proportionate amount for which each one shall be liable.
When the respective shares can not be equitably determined,
even approximately, or when the liability also attaches to the
Government, or to the majority of the inhabitants of the town, and,
in all events, whenever the damage has been caused with the
consent of the authorities or their agents, indemnification shall be
made in the manner prescribed by special laws or regulations.
Third. In cases falling within subdivisions 5 and 6 of
article 12, the persons using violence or causing the fear shall
be primarily liable and secondarily, or, if there be no such
persons, those doing the act shall be liable, saving always to
the latter that part of their property exempt from execution.
ART. 102. Subsidiary civil liability of innkeepers, tavern
keepers and proprietors of establishment. — In default of
persons criminally liable, innkeepers, tavern keepers, and any
other persons or corporation shall be civilly liable for crimes
committed in their establishments, in all cases where a
violation of municipal ordinances or some general or special
police regulation shall have been committed by them or their
employees.
Innkeepers are also subsidiarily liable for the restitution
of goods taken by robbery or theft within their houses lodging
therein, or the person, or for the payment of the value
thereof, provided that such guests shall have notified in
advance the innkeeper himself, or the person representing
him, of the deposit of such goods within the inn; and shall
furthermore have followed the directions which such
innkeeper or his representative may have given them with
respect to the care of and vigilance over such goods. No
liability shall attach in case of robbery with violence against or
intimidation against or intimidation of persons unless
committed by the innkeeper's employees.
ART. 103. Subsidiary civil liability of other persons. —
The subsidiary liability established in the next preceding
article shall also apply to employers, teachers, persons, and

corporations engaged in any kind of industry for felonies
committed by their servants, pupils, workmen, apprentices, or
employees in the discharge of their duties.
xxx xxx xxx
ART. 365. Imprudence and negligence. — Any person
who, by reckless imprudence, shall commit any act which, had
it been intentional, would constitute a grave felony, shall
suffer the penalty of arresto mayor in its maximum period to
prision correccional in its minimum period; if it would have
constituted a less grave felony, the penalty of arresto mayor in
its minimum and medium periods shall be imposed.
Any person who, by simple imprudence or negligence,
shall commit an act which would otherwise constitute a grave
felony, shall suffer the penalty of arresto mayor in its medium
and maximum periods; if it would have constituted a less
serious felony, the penalty of arresto mayor in its minimum
period shall be imposed."
It will thus be seen that while the terms of articles 1902 of the
Civil Code seem to be broad enough to cover the driver's negligence
in the instant case, nevertheless article 1093 limits cuasi-delitos to
acts or omissions "not punishable by law." But inasmuch as article
365 of the Revised Penal Code punishes not only reckless but even
simple imprudence or negligence, the fault or negligence under
article 1902 of the Civil Code has apparently been crowded out. It is
this overlapping that makes the "confusion worse confounded."
However, a closer study shows that such a concurrence of scope in
regard to negligent acts does not destroy the distinction between the
civil liability arising from a crime and the responsibility for
cuasi-delitos or culpa extra-contractual. The same negligent act
causing damages may produce civil liability arising from a crime
under article 100 of the Revised Penal Code, or create an action for
cuasi-delito or culpa extra-contractual under articles 1902-1910 of
the Civil Code.
The individuality of cuasi-delito or culpa extra-contractual
looms clear and unmistakable. This legal institution is of ancient
lineage, one of its early ancestors being the Lex Aquilia in the Roman
Law. In fact, in Spanish legal terminology, this responsibility is often
referred to as culpa aquiliana. The Partidas also contributed to the
genealogy of the present fault or negligence under the Civil Code; for
instance, Law 6, Title 15, of Partida 7, says: "Tenudo es de fazer
emienda, porque, como quier que el non fizo a sabiendas en daño al
otro, pero acaescio por su culpa."
The distinctive nature of cuasi-delitos survives in the Civil Code.
According to article 1089, one of the five sources of obligations is this
legal institution of cuasi-delito or culpa extra-contractual: "los
actos . . . en que intervenga cualquier genero de culpa o negligencia."
Then article 1093 provides that this kind of obligation shall be
governed by Chapter II of Title XVI of Book IV, meaning articles
1902-0910. This portion of the Civil Code is exclusively devoted to the
legal institution of culpa aquiliana.
Some of the differences between crimes under the Penal Code
and the culpa aquiliana or cuasi-delito under the Civil Code are:
1. That crimes affect the public interest, while cuasi-delitos are
only of private concern.
2. That, consequently, the Penal Code punishes or corrects the
criminal act, while the Civil Code, by means of indemnification,
merely repairs the damage.
3. That delicts are not as broad as quasi-delicts, because the
former are punished only if there is a penal law clearly covering
them, while the latter, cuasi-delitos, include all acts in which "any
king of fault or negligence intervenes." However, it should be noted
that not all violations of the penal law produce civil responsibility,
such as begging in contravention of ordinances, violation of the game
laws, infraction of the rules of traffic when nobody is hurt. (See Colin
and Capitant, "Curso Elemental de Derecho Civil," Vol. 3, p. 728.)
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Atty. Giancarlo Alicaya | SY 2018-19
PSBA, et. al. v. CA, et. al., GR No. 84698, Jan. 4, 1992
Cerezo v. Tuazon, GR No. 141538, March 23, 2004
Const. Dev’t. Corp. of the Phil. v. Estrella, et.al., GR No. 147791
III. Negligence
a. Definition
LARGO
Negligence is 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 (Art. 1173, NCC).
It is the omission to do something which a reasonable man,
guided by those considerations which ordinarily regulate
the conduct of human affairs, would do, or the doing of
something which a prudent and reasonable man would do
(Philippine Bank of Commerce v. Court of Appeals, G.R. No.
97626, 14 March 1997).
It also refers to the conduct which creates undue risk
of harm to another, the failure to observe that degree of
care, precaution and vigilance that the circumstance justly
demand, whereby that other person suffers injury (Smith
Bell Dodwell Shipping Agency Corporation v. Borja, G.R.
No. 143008,10 June 2002).
AQUINO
Actionable negligence may either be culpa
contractual, culpa aquiliana and criminal negligence.
Thus, an action for damages for the negligent acts of the
defendant may be based on contract, quasi-delict or
delict. The bases of liability are separate and distinct from
each other even if only one act or omission is involved.
Valuenzela v. CA, GR No. 115024, Feb. 7, 1996
These two petitions for review on certiorari under Rule 45 of
the Revised Rules of Court stem from an action to recover damages
by petitioner Lourdes Valenzuela in the Regional Trial Court of
Quezon City for injuries sustained by her in a vehicular accident in the
early morning of June 24, 1990. The facts found by the trial court are
succinctly summarized by the Court of Appeals below:
This is an action to recover damages based on quasi-delict, for
serious physical injuries sustained in a vehicular accident.
Plaintiff’s version of the accident is as follows: At around 2:00
o’clock in the morning of June 24, 1990, plaintiff Ma. Lourdes
Valenzuela was driving a blue Mitsubishi Lancer with Plate No. FFU
542 from her restaurant at Marcos highway to her home at Palanza
Street, Araneta Avenue. She was travelling along Aurora Blvd. with a
companion, Cecilia Ramon, heading towards the direction of Manila.
Before reaching A. Lake Street, she noticed something wrong with
her tires; she stopped at a lighted place where there were people, to
verify whether she had a flat tire and to solicit help if needed. Having
been told by the people present that her rear right tire was flat and
that she cannot reach her home in that car’s condition, she parked
along the sidewalk, about 1-1/2 feet away, put on her emergency
lights, alighted from the car, and went to the rear to open the trunk.
She was standing at the left side of the rear of her car pointing to the
tools to a man who will help her fix the tire when she was suddenly
bumped by a 1987 Mitsubishi Lancer driven by defendant Richard Li
and registered in the name of defendant Alexander Commercial, Inc.
Because of the impact, plaintiff was thrown against the windshield of
the car of the defendant, which was destroyed, and then fell to the
ground. She was pulled out from under defendant’s car. Plaintiff’s left
leg was severed up to the middle of her thigh, with only some skin
and sucle connected to the rest of the body. She was brought to the
UERM Medical Memorial Center where she was found to have a

“traumatic amputation leg, left up to distal thigh (above knee).” She
was confined in the hospital for twenty (20) days and was eventually
fitted with an artificial leg. The expenses for the hospital confinement
(P120,000.00) and the cost of the artificial leg (P27,000.00) were paid
by defendants from the car insurance.
In her complaint, plaintiff prayed for moral damages in the
amount of P1 million, exemplary damages in the amount of
P100,000.00 and other medical and related expenses amounting to a
total of P180,000.00, including loss of expected earnings.
Defendant Richard Li denied that he was negligent. He was on
his way home, travelling at 55 kph; considering that it was raining,
visibility was affected and the road was wet. Traffic was light. He
testified that he was driving along the inner portion of the right lane
of Aurora Blvd. towards the direction of Araneta Avenue, when he
was suddenly confronted, in the vicinity of A. Lake Street, San Juan,
with a car coming from the opposite direction, travelling at 80 kph,
with “full bright lights.” Temporarily blinded, he instinctively swerved
to the right to avoid colliding with the oncoming vehicle, and bumped
plaintiff’s car, which he did not see because it was midnight blue in
color, with no parking lights or early warning device, and the area
was poorly lighted. He alleged in his defense that the left rear portion
of plaintiff’s car was protruding as it was then “at a standstill
diagonally” on the outer portion of the right lane towards Araneta
Avenue (par. 18, Answer). He confirmed the testimony of plaintiff’s
witness that after being bumped the car of the plaintiff swerved to
the right and hit another car parked on the sidewalk. Defendants
counterclaimed for damages, alleging that plaintiff was reckless or
negligent, as she was not a licensed driver.
The police investigator, Pfc. Felic Ramos, who prepared the
vehicular accident report and the sketch of the three cars involved in
the accident, testified that the plaintiff’s car was “near the sidewalk”;
this witness did not remember whether the hazard lights of plaintiff’s
car were on, and did not notice if there was an early warning device;
there was a street light at the corner of Aurora Blvd. and F. Roman,
about 100 meters away. It was not mostly dark, i.e., “things can be
seen.” (p. 16, tsn, Oct. 28, 1991).
A witness for the plaintiff, Rogelio Rodriguez, testified that after
plaintiff alighted from her car and opened the trunk compartment,
defendant’s car came approaching very fast ten meters from the
scene; the car was “zigzagging.” The rear left side of plaintiff’s car was
bumped by the front right portion of defendant’s car; as a
consequence, the plaintiff’s car swerved to the right and hit the
parked car on the sidewalk. Plaintiff was thrown to the windshield of
defendant’s car, which was destroyed, and landed under the car. He
stated that defendant was under the influence of liquor as he could
“smell it very well.” (pp. 43, 79, tsn, June 17, 1991).
After trial, the lower court sustained the plaintiff’s submissions
and found defendant Richard Li guilty of gross negligence and liable
for damages under Article 2176 of the Civil Code.
xxx
It is plainly evident that the petition for review in G.R. No.
117944 raises no substantial questions of law. What it, in effect,
attempts to have this Court review are factual findings of the trial
court, as sustained by the Court of Appeals finding Richard Li grossly
negligent in driving the Mitsubishi Lancer provided by his company in
the early morning hours of June 24, 1990. This we will not do. As a
general rule, findings of fact of the Court of Appeals are binding and
conclusive upon us, and this Court will not normally disturb such
factual findings unless the findings of fact of the said court are
palpably unsupported by the evidence on record or unless the
judgment itself is based on a misapprehension of facts.
In the first place, Valenzuela’s version of the incident was fully
corroborated by an uninterested witness, Rogelio Rodriguez, the
owner-operator of an establishment located just across the scene of
the accident. On trial, he testified that he observed a car being driven
at a “very fast” speed, racing towards the general direction of
Araneta Avenue. Rodriguez further added that he was standing in
front of his establishment, just ten to twenty feet away from the
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Atty. Giancarlo Alicaya | SY 2018-19
scene of the accident, when he saw the car hit Valenzuela, hurtling
her against the windshield of the defendant’s Mitsubishi Lancer, from
where she eventually fell under the defendant’s car. Spontaneously
reacting to the incident, he crossed the street, noting that a man
reeking with the smell of liquor had alighted from the offending
vehicle in order to survey the incident. Equally important, Rodriguez
declared that he observed Valenzuela’s car parked parallel and very
near the sidewalk, contrary to Li’s allegation that Valenzuela’s car
was close to the center of the right lane. We agree that as between
Li’s “self-serving” asseverations and the observations of a witness
who did not even know the accident victim personally and who
immediately gave a statement of the incident similar to his testimony
to the investigator immediately after the incident, the latter’s
testimony deserves greater weight. As the court emphasized:
The issue is one of credibility and from Our own examination of
the transcript, We are not prepared to set aside the trial court’s
reliance on the testimony of Rodriguez negating defendant’s
assertion that he was driving at a safe speed. While Rodriguez drives
only a motorcycle, his perception of speed is not necessarily
impaired. He was subjected to cross-examination and no attempt
was made to question his competence or the accuracy of his
statement that defendant was driving “very fast.” This was the same
statement he gave to the police investigator after the incident, as
told to a newspaper report. (Exh. “P”). We see no compelling basis for
disregarding his testimony.
The alleged inconsistencies in Rodriguez’ testimony are not
borne out by an examination of the testimony. Rodriguez testified
that the scene of the accident was across the street where his
beerhouse is located about ten to twenty feet away. (pp. 35-36, tsn,
June 17, 1991). He did not state that the accident transpired
immediately in front of his establishment. The ownership of the
Lambingan sa Kambingan is not material; the business is registered in
the name of his mother, but he explained that he owns the
establishment. (p. 5, tsn, June 20, 1991). Moreover, the testimony
that the streetlights on his side of Aurora Boulevard were on the
night the accident transpired (p. 8) is not necessarily contradictory to
the testimony of Pfc. Ramos that there was a streetlight at the corner
of Aurora Boulevard and F. Roman Street. (p. 45, tsn, Oct. 20, 1991).
With respect to the weather condition, Rodriguez testified that
there was only a drizzle, not a heavy rain and the rain has stopped
and he was outside his establishment at the time the accident
transpired. (pp. 64-65, ts, June 17, 1991). This was consistent with
plaintiff’s testimony that it was no longer raining when she left Bistro
La Conga. (pp. 10-11, tsn, April 29, 1991). It was defendant Li who
stated that it was raining all the way in an attempt to explain why he
was travelling at only 50-55 kph. (p. 11, tsn, Oct. 14, 1991). As to the
testimony of Pfc. Ramos that it was raining, he arrived at the scene
only in response to a telephone call after the accident had transpired.
(pp. 9-10, tsn, Oct. 28, 1991). We find no substantial inconsistencies
in Rodriguez’s testimony that would impair the essential integrity of
his testimony or reflect on his honesty. We are compelled to affirm
the trial court’s acceptance of the testimony of said eyewitness.
Against the unassailable testimony of witness Rodriguez we
note that Li’s testimony was peppered with so many inconsistencies
leading us to conclude that his version of the accident was merely
adroitly crafted to provide a version, obviously self-serving, which
would exculpate him from any and all liability in the incident. Against
Valenzuela’s corroborated claims, his allegations were neither backed
up by other witnesses nor by the circumstances proven in the course
of trial. He claimed that he was driving merely at a speed of 55 kph.
when “out of nowhere he saw a dark maroon lancer right in front of
him, which was (the) plaintiff’s car.” He alleged that upon seeing this
sudden “apparition” he put on his brakes to no avail as the road was
slippery.
One will have to suspend disbelief in order to give credence to
Li’s disingenuous and patently self-serving asseverations. The average
motorist alert to road conditions will have no difficulty applying the
brakes to a car traveling at the speed claimed by Li. Given a light
rainfall, the visibility of the street, and the road conditions on a
principal metropolitan thoroughfare like Aurora Boulevard, Li would
have had ample time to react to the changing conditions of the road

if he were alert — as every driver should be — to those conditions.
Driving exacts a more than usual toll on the senses. Physiological
“fight or flight” mechanisms are at work, provided such mechanisms
were not dulled by drugs, alcohol, exhaustion, drowsiness, etc. Li’s
failure to react in a manner which would have avoided the accident
could therefore have been only due to either or both of the two
factors: 1) that he was driving at a “very fast” speed as testified by
Rodriguez; and 2) that he was under the influence of alcohol. Either
factor working independently would have diminished his
responsiveness to road conditions, since normally he would have
slowed down prior to reaching Valenzuela’s car rather than be in a
situation forcing him to suddenly apply his brakes. As the trial court
noted (quoted with approval by respondent court);
Secondly, as narrated by defendant Richard Li to the San Juan
Police immediately after the incident, he said that while driving along
Aurora Blvd., out of nowhere he saw a dark maroon lancer right in
front of him, which was plaintiff’s car, indicating, again, thereby that,
indeed, he was driving very fast, oblivious of his surroundings and the
road ahead of him, because if he was not, then he could not have
missed noticing at a still far distance the parked car of the plaintiff at
the right side near the sidewalk which had its emergency lights on,
thereby avoiding forcefully bumping at the plaintiff who was then
standing at the left rear edge of her car.
Since, according to him, in his narration to the San Juan Police,
he put on his brakes when he saw the plaintiff’s car in front of him,
but that it failed as the road was wet and slippery, this goes to show
again, that, contrary to his claim, he was, indeed, running very fast.
For, were it otherwise, he could have easily completely stopped his
car, thereby avoiding the bumping of the plaintiff, notwithstanding
that the road was wet and slippery. Verily, since, if, indeed, he was
running slow, as he claimed, at only about 55 kilometers per hour,
then, inspite of the wet and slippery road, he could have avoided
hitting the plaintiff by the mere expedient or applying his brakes at
the proper time and distance.
It could not be true, therefore, as he now claims during his
testimony, which is contrary to what he told the police immediately
after the accident and is, therefore, more believable, that he did not
actually step on his brakes, but simply swerved a little to the right
when he saw the on-coming car with glaring headlights, from the
opposite direction, in order to avoid it.
For, had this been what he did, he would not have bumped the
car of the plaintiff which was properly parked at the right beside the
sidewalk. And, it was not even necessary for him to swerve a little to
the right in order to safely avoid a collision with the on-coming car,
considering that Aurora Blvd. is a double lane avenue separated at
the center by a dotted white paint, and there is plenty of space for
both cars, since her car was running at the right lane going towards
Manila and the on-coming car was also on its right lane going to
Cubao.”
Having come to the conclusion that Li was negligent in driving
his company-issued Mitsubishi Lancer, the next question for us to
determine is whether or not Valenzuela was likewise guilty of
contributory negligence in parking her car alongside Aurora
Boulevard, which entire area Li points out, is a no parking zone.
We agree with the respondent court that Valenzuela was not
guilty of contributory negligence.
Contributory negligence is conduct on the part of the injured
party, contributing as a legal cause to the harm he has suffered,
which falls below the standard to which he is required to conform for
his own protection. Based on the foregoing definition, the standard
or act to which, according to petitioner Li, Valenzuela ought to have
conformed for her own protection was not to park at all at any point
of Aurora Boulevard, a no parking zone. We cannot agree.
Courts have traditionally been compelled to recognize that an
actor who is confronted with an emergency is not to be held up to
the standard of conduct normally applied to an individual who is in
no such situation. The law takes stock of impulses of humanity when
placed in threatening or dangerous situations and does not require
the same standard of thoughtful and reflective care from persons
confronted by unusual and oftentimes threatening conditions. Under
the “emergency rule” adopted by this court in Gan vs. Court of
Appeals, an individual who suddenly finds himself in a situation of
danger and is required to act without much time to consider the best
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means that may be adopted to avoid the impending danger, is not
guilty of negligence if he fails to undertake what subsequently and
upon reflection may appear to be a better solution, unless the
emergency was brought by his own negligence.
Applying this principle to a case in which the victims in a
vehicular accident swerved to the wrong lane to avoid hitting two
children suddenly darting into the street, we held, in McKee vs.
Intermediate Appellate Court, that the driver therein, Jose Koh,
“adopted the best means possible in the given situation” to avoid
hitting the children. Using the “emergency rule” the court concluded
that Koh, in spite of the fact that he was in the wrong lane when the
collision with an oncoming truck occurred, was not guilty of
negligence.
While the emergency rule applies to those cases in which
reflective thought, or the opportunity to adequately weigh a
threatening situation is absent, the conduct which is required of an
individual in such cases is dictated not exclusively by the suddenness
of the event which absolutely negates thoughtful care, but by the
over-all nature of the circumstances. A woman driving a vehicle
suddenly crippled by a flat tire on a rainy night will not be faulted for
stopping at a point which is both convenient for her to do so and
which is not a hazard to other motorists. She is not expected to run
the entire boulevard in search for a parking zone or turn on a dark
street or alley where she would likely find no one to help her. It
would be hazardous for her not to stop and assess the emergency
(simply because the entire length of Aurora Boulevard is a no-parking
zone) because the hobbling vehicle would be both a threat to her
safety and to other motorists. In the instant case, Valenzuela, upon
reaching that portion of Aurora Boulevard close to A. Lake St.,
noticed that she had a flat tire. To avoid putting herself and other
motorists in danger, she did what was best under the situation. As
narrated by respondent court: “She stopped at a lighted place where
there are people, to verify whether she had a flat tire and to solicit
help if needed. Having been told by the people present that her rear
right tire was flat and that she cannot reach her home she parked
along the sidewalk, about 1 1/2 feet away, behind a Toyota Corona
Car.” In fact, respondent court noted, Pfc. Felix Ramos, the
investigator on the scene of the accident confirmed that Valenzuela’s
car was parked very close to the sidewalk. The sketch which he
prepared after the incident showed Valenzuela’s car partly straddling
the sidewalk, clear and at a convenient distance from motorists
passing the right lane of Aurora Boulevard. This fact was itself
corroborated by the testimony of witness Rodriguez.
Under the circumstances described, Valenzuela did exercise the
standard reasonably dictated by the emergency and could not be
considered to have contributed to the unfortunate circumstances
which eventually led to the amputation of one of her lower
extremities. The emergency which led her to park her car on a
sidewalk in Aurora Boulevard was not of her own making, and it was
evident that she had taken all reasonable precautions.
Obviously in the case at bench, the only negligence ascribable
was the negligence of Li on the night of the accident. “Negligence, as
it is commonly understood is conduct which creates an undue risk of
harm to others.” It is the failure to observe that degree of care,
precaution, and vigilance which the circumstances justly demand,
whereby such other person suffers injury. We stressed, in Corliss vs.
Manila Railroad Company, that negligence is the want of care
required by the circumstances.
The circumstances established by the evidence adduced in the
court below plainly demonstrate that Li was grossly negligent in
driving his Mitsubishi Lancer. It bears emphasis that he was driving at
a fast speed at about 2:00 A.M. after a heavy downpour had settled
into a drizzle rendering the street slippery. There is ample testimonial
evidence on record to show that he was under the influence of
liquor. Under these conditions, his chances of effectively dealing with
changing conditions on the road were significantly lessened. As
Prosser and Keaton emphasized:
[U]nder present day traffic conditions, any driver of an
automobile must be prepared for the sudden appearance of
obstacles and persons on the highway, and of other vehicles at
intersections, such as one who sees a child on the curb may be
required to anticipate its sudden dash into the street, and his failure
to act properly when they appear may be found to amount to
negligence.
Li’s obvious unpreparedness to cope with the situation

confronting him on the night of the accident was clearly of his own
making.
b. Test of Negligence
LARGO
The test by which to determine the existence of
negligence in a particular case may be stated as follows:
Did the defendant in doing the alleged negligent act, use
that reasonable care and caution which on ordinarily
prudent person would have used in the same situation?
If not, then he is guilty of negligence.
The existence of negligence in a given case is not
determined by reference to the personal judgment of the
actor in the situation before him. The law considers what
would be reckless, blameworthy, or negligent in the man
of ordinary intelligence and prudence and determines
liability by that. (Picart vs. Smith, 37 Phil. 809 (1918).
Reasonable men govern their conduct by the
circumstances which are before them or known to them.
They are not, and are not supposed to be omniscient of
the future. Hence they can be expected to take care only
when there is something before them to suggest or warn
of danger.
Reasonable foresight of harm, followed by the
ignoring of the suggestion borne of this provision, is
always necessary before negligence can be held to exist
(Picart vs. Smith, supra; also, People v. De los Santos, G.R.
No. 131588, 27 March 2001).
c. Foreseeability
Foreseeability of the harm is therefore an
indispensable requirement.
d. Degrees of Negligence
In the civil law and at common law, three degrees of
negligence were recognized, namely, slight negligence,
ordinary negligence and gross negligence.
Slight negligence is the failure to exercise great or
extraordinary care. Ordinary negligence is the want of
ordinary care and diligence, that is, such care and
diligence as an ordinarily prudent person would exercise
under the same or similar circumstances. Gross
negligence is materially greater than ordinary negligence,
and consists of an entire absence of care or an absence
of even slight care or diligence; it implies a thoughtless
disregard for consequences or an indifference to the
rights or welfare of others (cf, 65 CJS at pp.536-539).
e. Standard of Conduct (Aquino)
i. General Rule
The Supreme Court explained in Picart vs.
Smith (supra, at p. 37) that the standard of conduct
used in the Philippines is that of paterfamilias in
Roman law or that who is referred to in Article 1173
of the Civil Code (in rel. Art. 2178) as a good father
of a family. What should be determined in
negligence cases is what is foreseeable to a good
father of a family. A good father of a family is
likewise referred to as the reasonable man, man of
ordinary intelligence and prudence, or ordinary
reasonable prudent man. In English law, he is
sometimes referred to as the man on top of a
Clapham omnibus. (Bolam vs. Friern Hospital
Management Committee, 2 All E.R. 119 Queens
Bench Div. [1957]).
Attributes of a Good Father of a Family
A. Knowledge and Experience of the Actor
The prudent man is expected to act
according to the circumstances that appear to
him at the time of the incident and he is not
judged based on his knowledge or experience
after the event. (67 C.J.S 528). The law does not
require the standard of one who is fortified
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with a gift of prophesy or one who is
omniscient of the future (Picart vs. Smith, supra;
Adams vs. Bullock, 227 N.Y. 208, 125 N.E. 93
[1919]). However, there are matters which a
prudent man is conclusively presumed to know
based on actual knowledge and experience. For
instance, where a particular act is followed
from past acts or omissions, one is charged with
notice that a similar act or omission, may
produce a similar result. (67 C.J.S 527). If the
actor is familiar with the place of the accident
because he always passes by such area, he is
also charged with the knowledge of the
make-up of the same area.
In PLDT Company, Inc. vs. Court of
Appeals (No. 57079, September 29, 1989), the
plaintiff was not able to recover from the
defendant telephone company even if he was
injured because of the excavation of the
company in the street. He sustained such
injuries when his jeep ran over a mound of
earth and fell into an open trench dug by the
telephone company for its underground
conduit system. Although there were no
warning signs in the area, the plaintiff was not
allowed to recover because he had knowledge
of the presence and location of the excavations,
having passed on the same street almost
everyday. He was found negligent in exercising
due care for his own safety. In Corliss vs. Manila
Railroad Company (supra, p. 685), knowledge of
the victim was also considered material in
determining his negligence in crossing the
railroad resulting in his death. The Supreme
Court affirmed the trial court’s reliance on
several circumstances, including the victim’s
knowledge and familiarity with the set-up of
the check point and the existence of the tracks.
A reasonable man is also deemed to
have knowledge of facts that a man should be
expected to know based on ordinary human
experience. For instance, a reasonable man can
be expected to know the effect of heavy rains
on the road or a railroad track. (Philippine
National Railway vs. Intermediate Appellate
Court, 217 SCRA 409, 414 [1993]). Experience
teaches that a driver should anticipate sudden
appearance of other vehicles at an intersection
or if a driver sees a child on a curb, he may
anticipate the child’s sudden dash into the
street. (Valenzuela vs. Court of Appeals, supra
at p. 671). One should also expect children to
roam around vacant lots (Taylor vs. Manila
Electric and Light Co., 16 Phil. 8 [1910]) and
should be expected to know the natural
reaction of animals to frightening objects.
(Picart vs. Smith, supra).
A prudent man should also be expected
to know basic laws of nature and physics like
gravity. For example, a driver is expected to
know that his vehicle will accelerate if the
street is going downhill. Any person is also
expected to know that a boulder might fall from
a high place if it was placed there in a
precarious state.
ii. Special Circumstances
Physical Disability
The Constitution recognizes the rights of
disabled persons. In fact, it mandates the creation of
a “special agency for disabled persons for their
rehabilitation, self-development and self-reliance,
and their integration in the mainstream of the

society.” (Section 13, Article XIII, 1987 Constitution).
The same principle for the integration of the disabled
in the mainstream of society is being upheld under
existing laws, particularly Republic Act No. 7277
otherwise known as the Magna Carta for Disabled
Persons.
Nevertheless, integration of a disabled person
in the mainstream of society does not mean that he
will be treated exactly the same way as one who is
not. A person who is physically disabled cannot be
expected to act as if he is not disabled. Thus, the
standard of conduct to which he must conform to
avoid being negligent is that of a reasonable person
under like disability. For example, in the case of a
blind man, he must take the precautions, be they
more or less, which the ordinary reasonable man
would take if he were blind. (Roberts vs. State of
Lousiana, 396 So. 2d 566 [1981], citing W. Prosser,
The Law of Torts, Section 32, at Pages 151-152, 4th
ed., 1971).
A person who is suffering from physical
disability must, however, refrain from activities
which a reasonable person suffering from such
disability would not undertake. Obviously, a blind
person should refrain from driving altogether.
Intoxication
Mere intoxication is not negligence, nor does
the mere fact of intoxication establish want of
ordinary care. It is but a circumstance to be
considered with the other evidence tending to prove
negligence. It is a general rule that it is immaterial
whether a man is drunk or sober if no want of
ordinary care or prudence can be imputed to him,
and no greater degree of care is required to be
exercised by an intoxicated man for his own
protection than a sober one. If one’s conduct is
characterized by a proper degree of care and
prudence, it is immaterial whether he is drunk or
sober. (Wright vs. Manila Electric Co., 28 Phil. 122
[1914]). In other words, intoxication is of little
consequence in negligence cases if it was not shown
that such drunkenness contributed to the accident or
that the accident would have been avoided had he
been sober. (U.S. vs. Crame, 30 Phil. 2 [1915]). For
example, the plaintiff cannot be considered
negligent based on the sole fact that he was
intoxicated when he fell into an uncovered hole in
the sidewalk of a public street. “A drunken man is as
much entitled to a safe street, as a sober one, and
much more in need of it.” (Robinson vs. Pioche,
Bayerque & Co., 5 Cal. 460 [1855], cited in Richard A.
Epstein, Cases and Materials on Torts, 1995 Ed., p.
187).
However, as pointed out earlier, intoxication
may be one of the circumstances to be considered to
prove negligence. For instance, intoxication may be
considered to prove negligence in driving a motor
vehicle. As explained by the Supreme Court, driving
exacts a more than usual toll on the senses. While
driving, the body releases catecholamines in
response to ‘alerting’ or threatening conditions
(called ‘fight’ or ‘flight’ conditions by physiologists)
rendering the individual, through his reflexes, senses
and other alerting mechanisms responsive to these
conditions. Alcohol dulls these normal bodily
responses. (Valenzuela vs. Court of Appeals, supra, p.
77, citing Best and Taylor, Physiological Basis of
Medical Practice, 81 [1993]). However, different
persons have different reactions to liquor. A person
may take as much as several bottles of beer or
several glasses of hard liquor and still remain sober
and unaffected by the alcoholic drink. (Nitura vs.
Employees’ Compensation Commission, 201 SCRA
278, 282-283 [1991]).
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Moreover, proof of intoxication may in proper
cases establish a presumption of negligence. Driving
under the influence of alcohol is a violation of traffic
regulations. Under Article 2185 of the Civil Code, it is
presumed that a person driving a motor vehicle has
been negligent if at the time of the mishap, he was
violating any traffic regulation.
Insanity
Under the Revised Penal Code, an insane
person is exempt from criminal liability. However,
by express provision of law, there may be civil
liability even when the perpetrator is held to be
exempt from criminal liability. “Such is the case of a
lunatic or demented person who, in spite of his
deranged mind, is still reasonably and justly liable
with his property for the consequences of his acts,
even though they be performed unwittingly. Law and
society are under obligation to protect him and,
when so declared liable with his property for
reparation and indemnification, he is still entitled to
reservation of what is necessary for his decent
maintenance, but this protection does not exclude
liability for damages caused to those who may have
the misfortune to suffer the consequences of his
act.” (U.S. vs. Bagay, 20 Phil. 142, 146).
The same rule is applicable under the Civil Code.
The insanity of a person does not excuse him or his
guardian from liability based on quasi-delict. (Articles
2180 and 2182, Civil Code). This means that the act
or omission of the person suffering from mental
defect will be judged using the standard test of a
reasonable man.
The bases for holding a permanently insane
person liable for his tort are as follows: (a) Where
one of two innocent persons must suffer a loss it
should be borne by the one who occasioned it; (b) to
induce those interested in the estate of the insane
person (if he has one) to restrain and control him;
and (c) the fear that an insanity defense would lead
to false claims of insanity to avoid liability. (Breunig
vs. American Family Insurance Co., 173 N.W. 2d 619
[1970]).
It should be noted, however, that there are
rare cases in the United States when a person may
escape liability by invoking his mental disorder. Thus,
a driver of a motor vehicle is not liable if he was
suddenly overcome without forewarning by a mental
disorder or disability which incapacitated him from
conforming his conduct to the standards of a
reasonable man under like circumstances. It was
explained that it is unjust to hold a man responsible
for his conduct which he is incapable of avoiding and
which incapability was unknown to him prior to the
accident. (Breunig vs. American Family Insurance Co.,
ibid.).
Women
There is no question that when it comes to
physical features, there is a distinction between man
and woman. A man is generally physically stronger
than a woman and the same should be taken into
consideration in determining if the defendant, who
is a woman, was negligent.
The problem, however, arises if the question
involves attitude. The question may be posed: Can
we apply the same objective standard to women
that we are applying to a man or are we to assume
that there is a fundamental difference between the
reaction or attitude of women compared to men
given the same set of facts? Although there is no
unequivocal statement of the rule, Valenzuela vs.
Court of Appeals cited earlier, appears to require a
different standard of care for women under the
circumstances indicated therein. The Supreme Court

seemed to say that the conduct to be expected of
women is different from that of a man.
iii. Children
The rule that there is one standard of conduct
— that of a reasonable man — is subject to certain
exceptions or qualifications. Thus, the action of the
child will not necessarily be judged according to the
standard of an ordinary adult. Neither will an
expert be judged based on what a non-expert can
foresee.
The rule in this jurisdiction is that “the care and
caution required of a child is according to his
maturity and capacity only and this is to be
determined in each case by the circumstances of
the case.” (Taylor vs. Manila Electric Railroad and
Light Co., 16 Phil. 8 [1910]). If a minor is mature
enough to understand and appreciate the nature
and consequences of his actions, he will be
considered negligent if he fails to exercise due care
and precaution in the commission of such acts.
The Court explained in Taylor vs. Manila Electric
Railroad and Light Co. (ibid.), however that “the law
fixes no arbitrary age at which a minor can be said
to have the necessary capacity to understand and
appreciate the nature and consequences of his acts,
so as to make it negligence on his part to exercise
due care and precaution in the commission of such
acts; and indeed it would be impracticable and
perhaps impossible so to do, for in the very nature
of things the question of negligence necessarily
depends on the ability of the minor to understand
the character of his own acts and their
consequences; and the age at which a minor can be
said to have such ability will necessarily vary in
accordance with the varying nature of the infinite
variety of acts which may be done by him.”
It should be noted in this connection that under
the Revised Penal Code, a child who is age nine (9)
or below is exempt from criminal liability. (Art. 8). A
child over nine (9) but below fifteen (15) is likewise
exempt from criminal liability if he acted without
discernment. Under the Family Code and the Child
and Youth Welfare Code, the choice of the child
who is at least 12 where his custody is in question is
to be respected unless there is no valid reason to
accord the same with respect. The consent of
children who are at least ten (10) of the person who
will adopt and the natural parents of the person to
be adopted are likewise required in adoption cases.
Applying the provisions of the Revised Penal
Code, Judge Sanco takes the view that a child who is
nine (9) or below is conclusively presumed to be
incapable of negligence. (1 Sanco, Phil. Law on Torts
and Damages, 70-71). On the other hand, if the child
is above nine (9) but below fifteen (15), there is a
disputable presumption of absence of negligence.
The doctrine in Jarco Marketing Corporation et
al. v. Court of Appeals (ibid.) therefore modifies the
rule laid down in Taylor v. Manila Electric Railroad
and Light Co. (supra.). If the child is under nine years,
it is no longer necessary to determine his maturity
and capacity because he is conclusively presumed
to be incapable of negligence. If the child is above
nine to fifteen, he is disputably presumed to be
incapable of negligence but the opposing party can
prove that the child is at such stage of maturity and
capacity that he can already determine what a
reasonable man would do under the same
circumstances.
Liability of children
It should be noted, however, that the absence
of negligence does not necessarily mean absence of
liability. Thus, under the Revised Penal Code, a child
who is nine years old can still be subsidiarily liable
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with his properties. (Art. 101, Revised Penal Code).
This liability is considered liability without fault. (1
Aquino, Revised Penal Code 883). Similarly, the
absence of negligence or intent on the part of the
child may not excuse the parents from their
vicarious liability under Article 2180 of the Civil
Code or Art. 221 of the Family Code because they
are liable for their own negligence in the
supervision of their child. The minor child, on the
other hand, shall be answerable with his own
property in an action against him if he has no
parents or guardian. The Supreme Court in
interpreting the provisions of the Old Civil Code on
tort explained that if the theory of the action is culpa
aquiliana, the minority of the actor does not free him
from responsibility for damages. The Court further
explained that the liability of an infant in a civil
action for his torts is imposed as a mode, not of
punishment, but for compensation. If property had
been destroyed or other loss was occasioned by a
wrongful act, it is just that the loss should fall upon
the estate of the wrongdoer rather than that of the
guiltless person, and that liability is imposed without
reference to the question of moral guilt.
Consequently, for every tortious act of violence or
other pure tort, the infant tortfeasor is liable in a civil
action to the injured person in the same extent as an
adult. (Magtibay vs. Tionco, 74 Phil. 576, 578-579
[1944]).
In other words, the effect of the circumstance
that the actor is a child would vary if the child is the
defendant-actor or the plaintiff. The circumstance
becomes material if the child is the person exposed
to the risk. If the child is the actor, even if he is
legally incapable of discernment because he is, for
example, only six (6) years old, the parents or any
person exercising parental authority over him may
still be liable if they did not exercise proper diligence
in supervising the child. The actor himself is liable up
to the extent of his properties.
iv. Experts
An expert should exhibit the care and skill of
one ordinarily skilled in the particular field that he
is in. In fact, when a person holds himself out as
being competent to do things requiring professional
skills, he will be held liable for negligence if he fails
to exhibit the care and skill of one ordinarily skilled
in the particular work which he attempted to do.
(Culion Ice, Fish & Electric Co., Inc. vs. Philippine
Motors Corporation, No. 32611, November 3, 1930,
55 Phil. 129).
The Supreme Court explained in Far Eastern
Shipping Company vs. Court of Appeals (297 SCRA 30,
64 [1998]) that an act may be negligent if it is done
without the competence that a reasonable person
in the position of the actor would recognize as
necessary to prevent it from creating an
unreasonable risk of harm to another. Those who
undertake any work calling for special skills are
required not only to exercise reasonable care in
what they do but also possess a standard minimum
of special knowledge and ability. Every man who
offers his services to another, and is employed,
assumes to exercise in the employment such skills
he possesses, with a reasonable degree of diligence.
In all these employment where peculiar skill is
requisite, if one offers his services he is understood
as holding himself out to the public as possessing
the degree of skill commonly possessed by others in
the same employment, and if his pretentions are
unfounded, he commits a species of fraud on every
man who employs him in reliance on his public
profession.

The above-cited Far Eastern Shipping Company
case involved a compulsory pilot of a seagoing vessel.
A pilot in maritime law is a person duly qualified to
conduct a vessel into or out of ports, or in certain
waters. It is more generally understood as a person
who was taken on board at a particular place for the
purpose of conducting a ship through a river, road or
channel, or from a port. In some states and localities,
it is quite common to provide for compulsory
pilotage and to enact safety laws requiring vessels
approaching their ports to take on board pilots duly
licensed under local law. (supra, p. 60). Thus, upon
assuming the office of a compulsory pilot, the latter
is held to the universally accepted high standards of
care and diligence required of a pilot, whereby he
assumes to have skill and knowledge in respect to
navigation in the particular waters over which his
license extends superior to and more to be trusted
than that of the master. A pilot should have a
thorough knowledge of general and local regulations
and physical conditions affecting the vessel in his
charge and the waters for which he is licensed, such
as a particular harbor or river. He is not held to the
highest possible degree of skill and care demanded
by the circumstances, but must have and exercise
the ordinary skill and care demanded by the
circumstances, and usually shown by an expert in his
profession. Under extraordinary circumstances, a
pilot must exercise extraordinary care. (p. 61).
The rule regarding experts is demonstrated in
United States vs. Pineda (37 Phil. 456, 462-464),
involving pharmacists. The Supreme Court explained
that the profession of pharmacy is one demanding
care and skill. It requires the highest degree of
prudence, thoughtfulness, and vigilance and the
most exact and reliable safeguards consistent with
the reasonable conduct of business, in order that
human life may not constantly be exposed to the
danger flowing from the substitution of deadly
poison for harmless medicine. “In other words, the
care required must be commensurate with the
danger involved and skill employed must correspond
with the superior knowledge of the business which
the law demands.”
The rule regarding experts is applicable not
only to professionals, like doctors, pilots and others,
who have undergone formal education. In Sofia
Fernando, et al. vs. Court of Appeals (208 SCRA 714
[1992]), an invitation to bid was issued to different
persons for the re-emptying of the septic tank in a
public market in Davao City. Later, a non-winning
bidder named Mr. Bertulano, with four other
companions were found dead inside the septic tank.
It appeared that the five victims entered the septic
tank and proceeded to re-empty the same without
the consent of proper authorities. When the heirs of
the victims sued for damages, they were denied
recovery by the Supreme Court explaining, among
others that the accident in the case occurred
because the victims on their own and without
authority from proper authorities of the city opened
the septic tank.
Care required must also be commensurate with
the danger that the activity entails. Thus, where the
performance of work involves danger to the public
unless performed with skill, the ordinary prudent
man is deemed to have such required skill. (57 Am.
Jur. 2d 420). For instance, a person hoisting a heavy
safe in a public place where people are constantly
passing is bound to use such care as the nature of
the employment and the situation and
circumstances require of a prudent person
experienced and skilled in such work. (ibid.). Similarly,
a person engaged in the business of selling
explosives or even mere firecrackers should exercise
TORTS AND DAMAGES
Atty. Giancarlo Alicaya | SY 2018-19
due care commensurate with the demands of such
dangerous activity.
NEGLIGENCE
f. Negligence as Proximate Cause
i. Definition
LARGO
Proximate cause has been defined as: " . . .
'that cause, which, in natural and continuous
sequence, unbroken by any efficient intervening
cause, produces the injury, and without which the
result would not have occurred.'
"Proximate cause is determined by the facts of
each case upon mixed considerations of logic,
common sense, policy and precedent" (The
Consolidated Bank & Trust Co. v. Court of Appeals,
G.R. No. 138569, September 11,2003, 410 SCRA
562).
The term has also been defined as the
dominant or immediate cause; the cause that sets
the others in motion; the efficient cause; the one
that necessarily sets the other causes in operation.
An act or omission is not the proximate cause of an
injury unless, had it not happened, the injury would
not have occurred. The proximate cause need not be
the sole cause, or necessarily the direct cause, or the
one which is nearest in time or place to the result (86
C.J.S. 943).
ii. The “Cause”
● Proximate
● Concurrent
LARGO
In order to render a person liable,
negligence need not be the sole cause of an
injury. It is sufficient that this negligence,
concurring with one or more efficient causes
other than plaintiff's, is the proximate cause of
the injury.
Accordingly, where several causes
combine to produce injuries, a person is not
relieved from liability because he is responsible
for only one of them, it being sufficient that the
negligence of the person charged with injury is
an efficient cause without which the injury
would not have resulted to as great an extent,
and that such cause is not attributable to the
person injured. It is no defense to one of the
concurrent tortfeasors that the injury would
not have resulted from his negligence alone,
without the negligence or wrongful acts of the
other concurrent tortfeasor. Where several
causes producing an injury are concurrent and
each is an efficient cause without which the
injury would not have happened, the injury
may be attributed to all or any of the causes
and recovery may be had against any or all of
the responsible persons although under the
circumstances of the case, it may appear that
one of them was more culpable, and that the
duty owed by them to the injured person was
not the same. No actor's negligence ceases to
be a proximate cause merely because it does
not exceed the negligence of other actors. Each
wrongdoer is responsible for the entire result
and is liable as though his acts were the sole
cause of the injury (Far Eastern Shipping Co. vs.
Court of Appeals, et al, G.R. No. 130068 &
130150, October 1,1998).
AQUINO
● Remote
● Intervening
g. Evidentiary Considerations
i. Proof of Negligence
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Atty. Giancarlo Alicaya | SY 2018-19

ii. Presumption of Negligence (non-contractual) tort since obviously the

● Res Ipsa Loquitur presumption of negligence in culpa
LARGO contractual immediately attaches by a failure
of the covenant or its tenor (FGU Insurance
Res ipsa loquitor (The thing speaks for itself)
Corp. vs. G. P. Sarmiento Trucking Corp. et al,
Res ipsa loquitur is rule of evidence
supra).
whereby negligence of alleged wrongdoer may
Where the doctrine is applicable, all that
be inferred from mere fact that accident
the plaintiff must prove is the accident itself;
happened provided character of accident and
no other proof of negligence is required
circumstances attending it lead reasonably to
beyond the accident itself.
belief that in absence of negligence it would
not have occurred and that thing which caused
● Respondeat Superior
injury is shown to have been under
management and control of alleged
● Violation of Traffic Rules (Art. 2184-85)
wrongdoer.
Under doctrine of "res ipsa loquitur" the LARGO
happening of an injury permits an inference of It is disputably presumed that a driver
negligence where plaintiff produces was negligent, if he had been found guilty of
substantial evidence that injury was caused by reckless driving or violating traffic regulations
an agency or instrumentality under exclusive at least twice within the next preceding two
control and management of defendant, and months (Article 2184, NCC). UNLESS there is
that the occurrence was such that in the proof to the contrary, it is presumed that a
ordinary course of things would not happen if person driving a motor vehicle has been
reasonable care had been used." (Layugan vs. negligent if at the time of the mishap, he was
Intermediate Appellate Court, G.R. No. 73998, violating any traffic regulation (Article 2185,
November 14,1988). NCC).
The doctrine of Res ipsa loquitur as a rule
of evidence is peculiar to the law of negligence ● Possession of Dangerous Weapons and
which recognizes that prima facie negligence Substances (Art. 2188)
may be established without direct proof and LARGO
furnishes a substitute for specific proof of
There is prima facie presumption of
negligence. The doctrine is not a rule of
negligence on the part of the defendant if the
substantive law but merely a mode of proof or
death or injury results from his possession of
a mere procedural convenience. The rule,
dangerous weapons or substances, such as
when applicable to the facts and
firearms and poison, except when the
circumstances of a particular case, is not
possession or use thereof is indispensable in
intended to and does not dispense with the
his occupation or business (Article 2188, NCC).
requirement of proof of culpable negligence
on the part of the party charged. It merely
determines and regulates what shall be prima
iii. Burden of Proof
facie evidence thereof and facilitates the
burden of plaintiff of proving a breach of the LARGO
duty of due care (Corpus Juris Secundum, Vol. The burden of proving negligence that is the
65A). It is not a rule of substantive law and, as proximate cause of the quasi-delict is on the one
such, it does not create an independent ground alleging the same. The person who alleged
of liability. Instead, it is regarded as a mode of negligence must prove it (Cea vs. Villanueva, G.R. No.
proof, or a mere procedural convenience since L-5446, March 10,1911). A person claiming damages
it furnishes a substitute for, and relieves the for the negligence of another has the burden of
plaintiff of, the burden of producing specific proving the existence of such fault or negligence
proof of negligence. The maxim simply places causative thereof. The facts constitutive of
on the defendant the burden of going forward negligence must be affirmatively established by
with the proof. Resort to the doctrine may be competent evidence. Whosoever relies on
allowed only when (a) the event is of a kind negligence for his cause of action has the burden in
which does not ordinarily occur in the absence the first instance of proving the existence of the
of negligence; (b) other responsible causes, same if contested, otherwise his action must fail
including the conduct of the plaintiff and third (PLDT vs. Court of Appeals, supra).
persons, are sufficiently eliminated by the
evidence; and (c) the indicated negligence is iv. Quantum Evidence
within the scope of the defendant's duty to h. Other Factors
the plaintiff. Thus, it is not applicable when an
unexplained accident may be attributable to
one of several causes, for some of which the
defendant could not be responsible (FGU
Insurance Corp. vs. G. P. Sarmiento Trucking
Corp. et al, G.R. No. 141910, August 6, 2002).
The doctrine can be invoked when and
only when, under the circumstances involved,
direct evidence is absent and not readily
available.
Res ipsa loquitur is an evidentiary
presumption, therefore, it is not to be invoked
to overcome evidence but to be applied only in
its absence.
Res ipsa loquitur has application only to
the law of negligence (63 Amjur 2d at 721). It
is confined only to cases of pure