Casis Analysis of Philippine Law and Jurisprudence On Torts and

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Rommel J. Casis. Analysis of Philippine Law and

Jurisprudence on Torts and Quasi-Delicts (2012).
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U.P. LAW CENTENNIAL TEXTBOOK PROJECT
An Analysis of
Philippine Law
and Jurisprudence on
Torts and Quasi-Delicts
ROMMEL J. CASIS
U.P. COLLEGE OF LAW
UNIVERSITY OF THE PHILIPPINES

COLLEGE OF LAW
Dilinan, Quezon City
Philippine Copyright © 2012
by
UNIVERSITY OF THE PHILIPPINES

COLLEGE OF LAW
and
ROMMEL J. CASIS
ISBN No. 978-971-15-0428-1
No part of this book may be reproduced in any form, or

by any electronic or mechanical means, including
information storage and retrieval systems, without
permission in writing from the author and the
publisher, except by a reviewer who may quote brief
passages in a review.
Artwork by Ally Publico
Cover Designed by Aristotle L. Roxas
Published by U.P. College of Law

Author's Profile
Rommel J. Casis received his Master of Laws (LL.M)

from Columbia University in 2010, specializing in
International Law, Climate Change Law and Environ-
mental Law. He earned the distinction of being a
Harlan Fiske Stone Scholar (magna cum laude equi-
valent). He also received a Certificate of Achievement
from the Parker School of Foreign and Comparative
Law of Columbia Law School.
As a law student, he was part of the Order of the

Purple Feather, the honor society of the UP College of
Law, for all his years in law school. He was in the top
ten of his graduating class and received the Dean's
Medal for Academic Excellence apart from other
awards both for academic and extra-curricular work.
Professor Casis began teaching in the UP College of

Law in 2005 and became a full-time faculty member in
2008.
Prior to joining the full-time faculty, he was engaged in

corporate law practice as part of an international law
firm for six years. His practice revolved around
mergers and acquisitions, foreign investment struc-
turing, real estate and property transactions and
corporate governance and compliance.
Professor Casis has taught the course, "Torts and

Damages" in the UP College Law since 2005. He has
also taught courses on Agency and Partnership,
Property, Supervised Legal Research, Credit Tran-
sactions, Obligations and Contracts, Transportation and
Public Utilities and Land Titles and Deeds.
Professor Casis is the author of three books, Analysis of

Philippine Agency Law and Jurisprudence, Analysis of
PhilippinePartnershipLaw and Jurisprudence,and Analysis
of PhilippineLaw andJurisprudenceon Damages.
Citation:
Tue Apr 17 10:45:10 2018



Preface
This volume is about Torts and Quasi-Delicts. This is

perhaps the field of law which baffles and intrigues me
the most. The title itself "Torts and Quasi-Delicts"
would raise questions as it is often considered that
Torts and Quasi-Delicts refer to the same thing. As
explained in Chapter I of this volume, torts and quasi-
delicts are two distinct concepts although certain cases
would suggest that they refer to the same thing. I chose
to title the volume in this manner to underscore the
distinctiveness of these concepts. An entire chapter is
devoted to explain the concept of tort and quasi-delict,
and how these concepts relate to each other. It is by far
the hardest chapter to write.
Torts and Quasi-Delicts, as a field of study, covers

roughly two-thirds of what is taught in a course called
"Torts and Damages" a course which I have taught
since 2005. I wrote another volume on Damages to cover
the other third of this course.
The number of Civil Code provisions on Torts and

Quasi-Delicts are few compared to other Civil Law
subjects. Most of the rules are actually found in juris-
prudence. Thus, in addition to probing the Civil Code
provisions, this volume provides for an analysis of
jurisprudence. The reader of this volume would readily
observe, the critical stance taken in this volume. Often,
after discussing the facts and the ruling of the Court,
this volume would evaluate the reasoning of the Court,
determine whether the statements form part of the ratio
decidendi, and project the implications of the Court's
rulings. This approach is necessary to fully com-
prehend the rules being established by the Court. As
instilled in us by Dean Merlin M. Magallona, in his
Legal Method class, students of law must understand
that Supreme Court decisions are not hallowed texts
that should be accepted as infallible but should be
considered as specimens to be dissected, scrutinized,
and analyzed. This analytical attitude towards juris-
prudence is by no means a sign of disrespect for the
Court or its members but merely a recognition of the
value of logical legal reasoning. Because each Supreme
Court decision is not merely literature but law, it must
be conceptually consistent and intellectually rigorous.
An analytical attitude towards case law is also a
commitment to promoting the integrity of jurispru-
dence, honor and excellence in adjudication.
As a practical matter, I also found it necessary to write

this volume considering the sheer magnitude of ma-
terial that a course on Torts and Damages would
require. By distilling only the most important parts of
cases and organizing the relevant legal rules, this
volume is intended to allow the student to learn more
material in the limited amount of time available in one
semester. As currently written, this volume covers
more cases than what would normally covered without
a book.
In this volume, it became necessary to discuss certain

common law concepts and rules because the Court
often uses these concepts in arriving at their decisions.
While the authority of common law concepts is at best
only persuasive in this jurisdiction, the contours and
contents of these common law concepts must be dearly
established so that they cannot be applied to situations
they were never meant to cover or used in a manner
that even common law never intended. While these
common law principles are discussed, the reader must
always remember that common law concepts are at
best only supplementary to the rules in this jurisdiction,
such that they should not apply if there is a dear rule in
this jurisdiction.
This is the last volume to be completed in the series of

four volumes I wrote for the U.P. College of Law
Centennial Textbook Writing Project ("Project"). Just
like the first three volumes, this volume would not be
possible without the collaboration of many individuals.
I am grateful for the work of Mr. Mario Dela Cruz in
formatting and lay-outing; Ms. Mary Grace Rosales and
Ms. Jennifer Castro my research assistants who helped
prepare and edit the manuscript; and Mr. Marc
Christian Luciano, the research assistant originally
assigned to this volume who did preliminary research
work.
Rommel J. Casis
Quezon City, Philippines 2012
Dedication
To my children, Cilque Dawn and Cian Gabren,

my joy and my crown,
my greatest and most undeserved heaven sent gifts.
No diligence, extraordinary or otherwise,
could ever make me worthy of being your father.
Citation:
Tue Apr 17 10:45:19 2018



Table of Cases
Afialda v. Hisole, G.R. No. L-2075,

29 November 1949 ........................................... 279,455
Air Francev. Carrascoso,G.R. No.
L-21438, 18 SCRA 155,28
September 1966 ...................................................... 81
Alarcon v. Alarcon, G.R. No.
L-15692, 31 May 1961 .............................................. 473
Albenson v. CA, G.R. No. 88694,
11 January 1993 ....................................................... 520
Amadora v. CA, G.R. No. L-47745,
15 April 1988 ............................................................ 369
Amedo v. Rio, G.R. No. L-6870,
24 May 1954 .............................................................. 118
Amonoy v. Gutierrez, G.R. No.
140420,15 February 2001 ....................................... 525
Andamo v. LAC, G.R. No. 74761,
6 November 1990 ................................................. 36
Afionuevo v. CA, G.R. No. 130003,
20 October 2004 ...................................... 141,184,247
Arafiles v. PhilippineJournalists,G.R.
No. 150256, 25 March 2004 ................................... 643
Baksh v. CA, G.R. No. 97336,

19 February 1993 .............................................. 37,550
Bank of PhilippineIslands v.
Lifetime, G.R. No. 176434,
25 June 2008 ....................................................... 44
Barredov. Garcia,G.R. No. 48006,
8 July 1942 ............................................................. 50
Bataclan v. Medina, G.R. No.
L-10126, 22 October 1957 ........................................ 294
ix
X J ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON ToRmS AND QuAsi-DEucTs
Bayani v. PanayElectric Co. Inc.,

386 Phil. 980, 986 (2000) .......................................... 576
Bernardov. Legaspi, G.R. No. 9308,
23 December 1914 .................................................... 234
Bonite v. Zosa, G.R. No. L-33772,
20 June 1988 .............................................................. 678
Bustamante v. CA, G.R. No. 89880,
6 February 1991 ....................................................... 345
Caedo v. Yu Khe Thai, G.R. No.

L-20392, 18 December 1968 .................................... 457
Calalasv. CA, G.R. No. 122039,
31 M ay 2000 ........................................................ 69,281
Cangco v. Manila Railroad,G.R.
No. 12191, 14 October 1918 ........................ 62, 72,354
Canlasv. CA, G.R. No. 112160,
28 February 2000 .................................................... 335
Capuno v. Pepsi Cola, G.R. No. L-
19331,30 April 1965,121 Phil.
638 ........................................ 670
Carpiov. Valmonte, G.R. No.
151866, 9 September 2004 ....................................... 563
Castilex v. Vasquez, G.R. No.
132266,21 December 1999 .............................. 385,410
Cayao-Lasamv. Spouses Ramolete,
G.R. No. 159132,18 December
2008 ....................................... 215
Chapman v. Underwood, G.R. No.
9010, 28 March 1914 ................................................ 459
Cinco v. Canonoy, G.R. No.
L-33171, 31 May 1979 ........................................... 39
TABLE OF CASES I xi
College Assurance v. Belfranlt,

538 SCRA 27 G.R. No.
155604, 22 November 2007 ..................................... 204
ConsolidatedBank v. CA, G.R. No.
138569, 11 September 2003 ............................... 80,343
CorinthianGardens v. Spouses
Tanjangco, G.R. No. 160795,
27 June 2008 .............................................................. 136
Corpus v. Paje, G.R. No. L-26737,
31 July 1969 ............................................................. 673
Cruz v. CA, G.R. No. 122445,
18 November 1997; 346
Phil. 872, 886 .................................................... 172,213
Culion v. PhilippineMotors, G.R.
No. 32611, 3 November 1930 ................................. 161
DM Consunjiv. CA, G.R. No.

137873, 20 April 2001 .............................................. 209
Drilonv. CA, G.R. No. 107019,
20 March 1997 ......................................................... 585
Dulay v. CA, G.R. No. 108017,
3 A pril 1995 ............................................................. 681
Dy Teban v. Jose Ching, G.R. No.
161803, 4 February 2008 ......................................... 317
Elcano v. Hill, G.R. No. L-24803,

26 May 1977 ........................................................... 32
Engadav. CA, G.R. No. 140698,
20 June 2003 .............................................................. 350
FarEast v. CA, G.R. No. 108164,

23 February 1995 .................................................. 86
x I ANALYSIS OF PHIUPPINE LAW AND JUJSPRUDENCE oN TORTS AND QuAsi-DEucTs
FarEastern Shipping v. CA, G.R.

No. 130068, 1 October 1998 .................................... 303
FGU Insurance v. Sarmiento, G.R.
No. 141910, 6 August 2002 .................................. 66
Filamer ChristianInstitute v.
IntermediateAppellate Court,
G.R. No. 75112,16 October
1990 ....................................... 399
FilamerChristianInstitute v.
IntermediateAppellate Court,
G.R. No. 75112,17 August
1992 ....................................... 401
Fontanillav. Maliaman,G.R. Nos.
55963 and 61045,1 December
1989 ....................................... 439
Fontanillav. Maliaman, G.R. Nos.
55963 and 61045, 27 February
1991 ....................................... 441
Fores v. Miranda,G.R. No.
L-12163, 4 March 1959,
105 Phil 266 .......................................................... 78
Gabeto v. Araneta, G.R. No. 15674,

17 October 1921 ...................................................... 309
Garciav. Salvador, G.R. No.
168512, 20 March 2007 ...................................... 18,536
Genobiagon v. CA, G.R. No. 40452,
12 October 1989 ....................................................... 260
Gilchristv. Cuddy, G.R. No. 9356,
18 February 1915; 29 Phil. 542,
549 ........................................ 482
Glan v. LAC, G.R. No. 70493,
18 M ay 1989 .............................................................. 333
TmLEOFCASES I xiii
Globe Mackay v. CA, G.R. No.

81262, 25 August 1989 ............................................ 515
Go v. Cordero,G.R. No. 164703,
4 May 2010 ................................................................ 504
Grand Union v. Espino, G.R. No.
L-48250, 28 December 1979 .................................... 557
Gregoriov. CA, G.R. No. 179799,
11 September 2009 .................................................. 598
Guilatcov. Dagupan, G.R. No.
61516, 12 March 1989 .............................................. 466
Heirs of Completo v. Albayda, Jr.,

G.R. No. 172200, 6 July 2010 .................................. 142
Heirs of Simon v. Elvin Chan, G.R.
No. 157547,23 February 2011 ............................... 665
Ilao-Oretav. Ronquillo, G.R. No.

172406, 11 October 2007 ......................................... 123
Ilocos Norte v. CA, G.R. No. 53401,
6 November 1989 ..................................................... 279
Jarco Marketing Corporationv.

Court ofAppeals, G.R. No.
129792, 378 Phil. 991, 1002-
1003,21 December 1999.......................................... 156
Jorge v. Sicam, G.R. No. 159617,
8 August 2007 ................................................................
Juntilla v. Fontanar,G.R. No.
L-45637, 31 May 1985 .............................................. 269
Kramer v. CA, G.R. No. 83524,

13 October 1989 ................................................... 282
Xiv I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUSi-DEUCTS
L.G. Foods v. PhiladelfaPagapong-

Agraviador,G.R. No. 158995,
26 September 2006 ................................................ 57
Lagon v. CA, G.R. No. 119107,
18 March 2005,453 SCRA
616, 626 ...................................................................... 499
Lambert v. Heirs of Ray Castillon,
G.R. No. 160709,23 February
2005 ....................................................................... 255
Lampesa v. De Vera, G.R. No.
155111, 14 February 2008 ....................................... 423
Lapanday v. Angala, G.R. No.
153076, 21 June 2007................................................. 337
Layugan v. LAC, G.R. No. 73998,
14 November 1988 ................................................... 197
Libi v. LAC, G.R. No. 10890,
18 September 1992 ................................................... 357
Light Rail Transit v. Navidad, G.R.
No. 145804, 6 February 2003;
445 Phil. 31 ............................................................... 100
Lucas v. Dr. Tuano, G.R. No.
178763, 21 April 2009 .............................................. 219
MHP Garmentsv. CA, G.R. No.

86720, 2 September 1994 ........................................ 607
MH. Rakes v. The Atlantic, G.R.
No. L-1719, 23 January 1907.................................. 240
Ma-ao Sugar Central Co., Inc. v.
Court of Appeals, G.R. No.
83491, 27 August 1990 ............................................ 246
Madeja v. Caro, G.R. No. L-51183,
21 December 1983 ............................................. 639,677
TABLE OF CAsES Ixv
Magbanua v. Junsay, G.R. No.

132659, 12 February 2007 ....................................... 588
Manila Electric v. Remoquillo, G.R.
No. L-8328, 18 May 1956 ........................................ 237
MarinduqueIron Mines v. The
Workmen's Compensation
Commission, G.R. No. L-8110,
30 June 1956 .............................................................. 121
Mercury Drug Corporationv.
Baking, G.R. No. 156037,25
May 2007; 523 SCRA 184 ....................................... 298
Mercury Drug v. De Leon, G.R. No.
165622, 17 October 2008 ......................................... 168
Mercury Drug v. Huang, G.R. No.
172122, 22 June 2007 ............................................... 424
Merritt v. Government, G.R. No.
11154,21 March 1916 ............................................. 431
MVRS Publications,Inc. v. Islamic,
G.R. No. 135306, 28 January
2003 ........................................................................... 648
NPC v. CA, G.R. No. 119121,14

A ugust 1998 ............................................................. 404
NPC v. Heirs of Casionan,G.R. No.
165969, 27 November 2008 ..................................... 249
Naguiatv. NLRC, G.R. No.
116123, 13 March 1997 ......................................... 13
Nikko Hotel v. Roberto Reyes, G.R.
No. 154259, 28 February 2005 ................................ 281
Ocean Builders v. Spouses Cubacub,

G.R. No. 150898,13 April 2011 ........................... 21
XV I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DEUCTS
PLDT v. CA, G.R. No. 57079,

29 September 1989 .............................................. 234
PNR v. Brunty, G.R. No. 169891,
2 November 2006 ............................................. 110,257
PNR v. CA, G.R. No. 157658,
15 October 2007 ....................................................... 113
PSBA v. CA, G.R. No. 84698,
4 February 1992 ................................................... 91
Pacis v. Morales, G.R. No. 169467,
25 February 2010 ..................................................... 144
Palisocv. Brillantes,G.R. No.
L-29025, 4 October 1971 .......................................... 366
Pantaleonv. American Express,
G.R. No. 174269,25 August
2010 ...................................... 283, 533
Pantranco v. Baesa, G.R. Nos.
79050-51, November 14,1989 ................................ 348
Pe v. Pe, G.R. No. L-17396,
30 May 1962 ............................................................. 554
PhilippineBank of Commerce v. CA,
G.R. No. 97626,14 March
1997; 336 Phil. 667, 675 ........................................... 339
Phoenix Constructionv. LAC, G.R.
No. L-65295, 10 March 1987;
148 SCRA 353 ................................................... 312,330
Picartv. Smith, G.R. No. L-12219,
15 March 1918; 37 Phil 809 ............................ 129,328
PilipinasBank v. CA, G.R. No.
105410, 25 July 1994 ................................................ 299
ProfessionalServices v. Agana, G.R.
No. 126297,31 January 2007 ......................... 194,391
ProfessionalService v. Agana, G.R.
No. 126297, 11 February 2008 ............................... 394
TABLEOFCASES I xvii
ProfessionalServices v. Agana, G.R.

No. 126297, 2 February 2010 ................................. 396
Que v. LAC, G.R. No. 66865,

13 January 1989 ....................................................... 580
Quezon City v. Dacara,G.R. No.
150304,15 June 2005 ................................................ 467
Quisabav. Sta Ines, G.R. No.
L-38088, 30 August 1974 ........................................ 593
Ramos v. CA, G.R. No. 124354,

29 December 1999 .............................................. 222
Rosete v. Auditor General,G.R. No.
L-1120, 31 August 1948 .......................................... 436
Salvosa v. LAC, G.R. No. 70458,

5 O ctober 1988 ......................................................... 376
Sanitary Steam v. CA, G.R. No.
119092, 10 December 1998 ..................................... 182
Sicam v. Jorge, G.R. No. 159617,
8 August 2007 .................................................. 134,262
Silahis v. Soluta, G.R. No. 163087,
20 February 2006 .................................................... 611
So Ping Bun v. Court of Appeals, G.R.
No. 120554, 21 September 1999;
314 SCRA 751, 758 ................................................... 494
Southeastern College v. CA, G.R.
No. 126389, 10 July 1998 ......................................... 273
Spouses Jayme v. Apostol, G.R. No.
163609, 27 November 2008 ............................. 386,449
St Louis v. CA, G.R. No. L-46061,
14 November 1984 ................................................... 595
xviii ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QuASI-DELcTs
St. Joseph's College v. Miranda,

G.R. No. 182353,29 June 2010 ............................... 380
St. Mary's Academy v. Carpitanos,
G.R. No. 143363, 6 February
2002 ............................................................................ 378
Syquia v. CA, G.R. No. 98695,
27 January 1993 ..................................................... 96
Tamargo v. CA, G.R. No. 85044,

3 June 1992................................................................ 360
Tan v. JAM Transit, G.R. No.
183198, 25 November 2009 ..................................... 200
Tanjancov. CA, G.R. No. L-18630,
17 December 1966 .................................................... 546
Taylor v. Manila Electric Railroad,
G.R. No. 4977,22 March 1910,
16 Phil. 8 ................................................................... 151
Tison v. Spouses Pomasin,G.R. No.
173180, 24 August 2011 ......................................... 180
U.E. v. Jader,G.R. No. 132344,

17 February 2000 ..................................................... 528
United States v. Pineda,G.R. No.
L-12858, 22 January 1918 ........................................ 164
Valenzuela v. Court of Appeals,

G.R. No. 115024,7 February
1996; 323 Phil. 374, 388 (1996) ................................ 416
Vestil v. LAC, G.R. No. 74431, 6
November 1989 ........................................................ 455
Vinzons-Chato v. Fortune,G.R. No.
141309,19 June 2007 ............................................... 615
TMsLE oF CMEs XIX
Vinzons-Chato v. Fortune,G.R. No.

141309, 23 December 2008 .................................... 624
Wassmer v. Velez, G.R. No. L-

20089, December 26, 1964 ....................................... 545
Ylarde v. Aquino, G.R. No. L-

33722, 29 July 1988 .................................................. 158
Yuchengco v. Manila Chronicle,G.R.
No. 184315, 25 November 2009 ............................. 654
Citation:
Tue Apr 17 10:45:28 2018



Table of Contents
I. The Conceptual Framework

A. The Concept of a Tort ............................................ 1
1. Tort in Common Law ...................................... 1
a. Etymology ................................................... 1
b. Definition .......................................................... 1
c. Common Theme ......................................... 4
2. 'Tort" under Philippine Law .......................... 5
a. Existence of Philippine Tort
Law............... . ..... ........ .5
i. Intent of the Framers ........................... 7
ii. Civil Code Text ..................................... 9
b. Scope of Philippine Tort Law ................. 12
c. Definition of "Tort" under
Philippine Law ......................................... 13
d. Elements of Tort ....................................... 17
3. The Purpose of Tort Law .............................. 24
B. The Concept of a Quasi-Delict ........................... 27
1. Historical Background .................................. 27
2. Nature ............................................................. 29
3. Governing Provisions ................................... 30
4. Definition ........................................................ 30
5. Scope ............................................................... 31
a. "Intentional" Acts? .................................. 31
b. Damage to Property ................................. 39
6. Elements .......................................................... 41
C. The Relationship between
Tort and Quasi-Delict ......................................... 42
XXII I ANYSIS OF PHIIUPPINE LAW AND JURISPRUDENCE ON ToRTS AND QuASI-DEUCTS
1. Distinct Concepts ........................................... 4.....

2
2. Framework ..................................................... 43
D. Quasi-Delict and Delict ...................................... 46
1. Distinguishing Quasi-Delict
from Delict .................................................... 46
2. Overlap between Quasi-Delict
and Delict ...................................................... 49
E. CulpaAquiliana and Culpa
Contractual............................................................. 61
1. Distinguishing CulpaAquiliana
from Culpa Contractual................................... 61
a. Source ........................................................ 61
b. Burden of Proof ........................................ 64
c. Applicability of Doctrine of
Proximate Cause ...................................... 69
d. Defense of Employer for
Negligence of Employee ........................ 72
2. Is there an intersection? ................................. 73
II. Negligence
A. Concept of Negligence ........................................... 106
1. Defining negligence .......................................... 106
2. Determining the
Diligence Required .......................................... 108
B. Degrees of Negligence ............................................ 116
C. Standard of Conduct ............................................... 126
1. Importance of a Standard
of Conduct .......................................................... 126
2. The Fictitious Person ........................................ 126
TABLEoFCoTm I xxiii
a. Common Law's
Reasonable Person ...................................... 126
b. Civil Law's Good Father
of a Family .................................................... 128
3. Special Circumstances ...................... 140
4. Children .............................................................. 147
5. Experts ................................................................ 160
a. In General ..................................................... 160
b. Pharmacists .................................................. 163
c. Medical Professionals ................................. 171
III. Presumptions of Negligence

A. In Motor Vehicle Mishaps ...................................... 178
1. Previous Violations ............................................ 178
2. Simultaneous violations .................................... 180
B. Possession of Dangerous
Weapons and Substances ....................................... 187
C. Common Carriers .................................................... 188
D. Res Ipsa Loquitur....................................................... 190
1. Definition ........................................................... 190
2. Statement of the Rule ........................................ 191
3. Elements ............................................................. 192
a. The Nature of the Accident ........................ 193
b. Control Over the Cause ............................. 194
c. No Contribution to the
Injury from the Injured ............ 196
4. Effect of Direct Evidence .................................. 197
5. Nature of the Rule ............................................. 206
6. Effect of the Rule ................... 207
xxiv I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON ToRs AND QUASi-DEUCTs
7. Justification for the Rule ................................... 209

8. Res Ipsa Loquitur versus
Expert Testimony in Medical
Negligence Cases .............................................. 212
IV. Defenses Against the Charge of
Negligence
A. Plaintiff's Negligence is
the Proximate Cause ............................................... 234
B. Contributory Negligence of
the Plaintiff ............................................................... 239
1. Definition of Contributory
Negligence ......................................................... 240
2. Distinguishing
Contributory Negligence
from Proximate Cause ..................................... 252
3. Effect of Contributory
Negligence ......................................................... 254
C. Fortuitous Event ..................................................... 261
1. Definition ............................................................ 261
2. Defense and Exceptions ................................... 265
3. Elements ............................................................. 266
4. Three Step Analysis .......................................... 268
D. Plaintiff's Assumption of Risk .............................. 278
E. Prescription ........................................................ 286
V. The Cause
A. Different Categories ................................................ 290
1. Proximate ........................................................... 290
2. Concurrent ......................................................... 302
TAsLE OF CONTENTS I XXV
3. Remote ................................................................ 307

4. Intervening ......................................................... 310
B. Tests to Determine Proximate Cause ................... 316
1. But For ................................................................ 316
2. Sufficient Link.................................................... 317
3. Substantial Factor .............................................. 321
4. Mixed Considerations ...................................... 322
5. Cause v. Condition ........................................... 323
6. Last Clear Chance ............................................. 325
a. History and Rationale ................................. 325
b. Statement of the Rule .................................. 327
c. Application in this
Jurisdiction ................................................... 328
VI. Persons Vicariously Liable

A. Persons Exercising
Parental Authority .................................................. 356
1. Parents ................................................................ 356
2. Guardians ........................................................... 362
3. Other Persons Exercising
Parental Authority ............................................ 362
B. Teachers and Schools .............................................. 363
1. Under the Civil Code ........................................ 363
2. Under the Family Code .................................... 377
C. Owners or Managers of
Establishments/Employers .................................... 383
1. Distinguishing the 4th and 5th
Paragraph of Article 2180 ................................ 384
2. When Applicable ............................................... 386
Xxvi J ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTs AND QUAsi-DEUCTs
a. Employer-Employee
Relationship ................................................. 386
b. Within the Scope of
Assigned Tasks ............................................ 399
3. Presumption of Negligence ............................. 420
4. Rebuttal of Presumption .................................. 421
a. Selection ........................................................ 422
b. Supervision .................................................. 422
D . The State ................................................................... 427
VII. Persons Specifically Liable

A. Possessor or User of Animals ................................ 453
B. Owner of Motor Vehicles ....................................... 457
C. Provinces, Cities, and
Municipalities .......................................................... 465
D. Proprietors of Buildings ......................................... 468
E. Engineer/Architect of
Collapsed Building ................................................. 471
F. Head of Family for Things
Thrown or Falling ................................................... 472
G. Owners of Enterprises/
Other Employers ..................................................... 473
1. Situations Covered ............................................ 476
a. Death or Injury ............................................ 476
b. Illness or Disease ................................... .. 477
2. Defenses Available ............................................ 477
a. When Death or Injury Not
Caused by a Fellow Worker ...................... 477
b. When Death or Injury
Caused by Fellow Worker ......................... 478
TABLEOFCONTENTS I xxvii
H. Manufacturers/Producers of
Products .................................................................... 478
I. Persons who Interfere with
Contractual Relations ............................................. 479
1. The Common Law Doctrine ............................ 479
a. Intent ............................................................. 480
b. Improper Purpose ....................................... 481
2. Under Philippine Jurisprudence ..................... 482
VIII. Human Relations Torts

A. Abuse of Rights ....................................................... 511
B. Illegal Acts ................................................................ 536
C. Acts Contra Bonus Mores ...................................... 541
1. In General ........................................................... 541
2. Moral Seduction ................................................ 546
3. Public Humiliation ............................................ 554
4. Malicious Prosecution ...................................... 567
a. Under Common Law .................................. 567
b. Under Philippine Law ................................ 570
5. Oppressive Dismissal ....................................... 593
D. Violation of Human Dignity .................................. 594
E. Dereliction of Duty ................................................. 602
F. Unfair Competition ................................................. 602
IX. Independent Civil Actions

A. Violation of Civil and
Political Rights ................................................... 604
1. Persons Responsible ......................................... 604
2. Malice or Bad Faith
Not Required ..................................................... 605
Xxviii I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON ToRT AND QUASI-OEUCTS
3. N ature of Acts Covered ................................... 606

4. Rationale for Article 32 ..................................... 607
B. Defamation, Fraud, and
Physical Injuries ...................................................... 638
1. In General ........................................................... 638
2. Defam ation ......................................................... 640
a. In General ..................................................... 640
b. Libel ............................................................... 642
3. Fraud .................................................. ;................ 665
4. Physical Injuries ................................................ 668
5. N eglect of Duty ................................................. 682
6. Catch-All Independent
Civil Action ........................................................ 682
Subject Index ................................................................. 684
Citation:
Tue Apr 17 10:45:36 2018



I. The Conceptual Framework
A. THE CONCEPT OF A TORT
A proper understanding of the term "tort"' requires

understanding it in its original context. Because tort is
a common law concept, it would be best to begin with
understanding it in the common law context.
1. Tort in Common Law
a. Etymology
It is often explained that the word "tort" is derived

from the Latin tortus, which means "twisted" or
"crooked."2
The metaphor is apparent: a tort is a conduct which is

twisted, or crooked, not straight. 'Tort" is found in the
French language, and was at one time in common use in
English as a general synonym for wrong. When it faded
out of common speech, it remained in the law, and
3
gradually acquired a technical meaning.
b. Definition
Despite its development as a common law concept,

tort has yet to obtain a universally accepted
1 In this volume, "tort" is enclosed within quotation marks when what

is referred to is the word or term, and it is italicized (i.e. tort) when it
is referred to as a concept
2 PROSSER AND KEETON ON TORTS (FIFH ED.) 2 (1994); JOHN G. FLEwNG,
THE LAw OF TORTS 1 (1977).
3 PROSSER AND KEETN, supra note 2.
2 1 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DEUCTS
definition. 4 There have been many definitions pro-

posed:
5
" a violation of a duty imposed by law;
6
" a wrong independent of contract;
" an act or omission giving rise.., to a civil
7
remedy which is not an action of contract;
* a civil wrong, other than a breach of contract,
for which the court will provide a remedy in
the form of an action for damages; 8
* a breach of duty (other than a contractual or
quasi-contractual duty) creating an obligation,
and giving rise to an action for damages;
* an injury inflicted otherwise than by a mere
breach of contract; or, to be more nicely accu-
rate, one's disturbance of another in rights
which the law has created, either in the absence
of contract, or in consequence of a relation
4 Id. at 1; FLEwNG, supra note 2; Jeremiah Smith, Tort and Absolute

Liability - Suggested Canges in Classification, 30 HARVARD L. REV. 241
(1917).
5 86 C.J.S. ToRTS § 1; 74 AM. JuLr 2D TORTS § 1.
6 Coomy, TORTS 2d ed. 3 cited in Frederick Cooke, A Proposed New
Definitionof Tort, 12 Harv. L. Rev. 335 (1898); INNs, TORTS, § 6 cited in
Jeremiah Smith, Tort and Absolute Liability - Suggested Changes in
Classification,30 HARVARD L. REv. 241, 249 (1917).
7 FREEmUCK POLLOCK, TORTS 4 cited in Frederick Cooke, A Proposed New
Definition of Tort, 12 HARv. L. REv. 335 (1898); Clerk & Lindsell, Torts,
6th ed. 4 cited in Jeremiah Smith, Tort and Absolute Liability - Suggested
Changes in Classification,30 HARVARD L. REv. 241,250 (1917).
8 86 CJ.S. TORTS § 1; PROSME AND KEEoN, supra note 2; FLEwNG, supra
note 2.
THE CONCEPTUAL FRAMEWORwI 3
which a contract had established between the

parties;9 or
* an act or omission, not a mere breach of con-
tract, and producing injury to another, in the
absence of any existing lawful relation of which
such act or omission is a natural outgrowth or
incident.' 0
Considering the above-mentioned definitions it would

seem that tort under common law is often defined by
what it is not and the possible remedy once it is
proven to exist. But as Goldberg and Zipursky points
out:
To say that torts are civil wrongs other than those arising
from contract is to utter an unhelpful platitude. It tells us
nothing about why individuals in the various instances
called "torts" are entitled to damages."
Furthermore, it is also said that these "numerous

attempts which have been made to define the term
have succeeded only in achieving language so broad
that it includes other matters than torts or else so
2
narrow that it leaves out some torts themselves.'
9 BIsHOP, NON-CONTRAcr LAw, 4 cited in Frederick Cooke, A Proposed

New Definition of Tort, 12 HARv. L. REv. 335 (1898).
10 Frederick Cooke, A Proposed New Definition of Tort, 12 HARv. L. REv.
335,336 (1898).
11 John Goldberg and Beramin Zipursky, Torts as Wrongs, 88 TEx L.
REv. 917,924 (2010).
12 PROssER AND KEEroN, supra note 2 at 1-2.
4 1 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QuASi-DEUCTS
c. Common Theme
In common law, there are many types of "wrongs"

which fall within the rubric of torts. This diversity
makes it extremely difficult "to discover any general
principle upon which they may all be based, unless it
is ...that injuries are to be compensated, and anti-
13
social behavior is to be discouraged.'
As a result, it has been said that:

there is no such thing as a law of Tort, but only a law of
particular unconnected torts-that is, a set of pigeon-
holes, each bearing a name, into which the act or
omission of the defendant must be fitted before the law
14
will take cognizance of it and afford a remedy.
But some have held to the contrary view. According

to Seavey:
It is now generally recognized that, however diverse
may be the situations included within the field, there is a
predominant purpose which the law serves in actions of
tort and that there are principles which run through the
entire subject, so that it is entitled to be regarded as a
distinct branch of the law.15
According to Prosserand Keeton:

there is a central theme, basis or idea, running through
the cases of what are called tort, which although difficult
to put into words, does distinguish them in greater or
less degree from other types of cases.16
13 PRo E RAND KEETON, supra note 2 at 3.

14 Id. at3.
15 Warren Seavey, Principlesof Torts, 56 HIARv. L.REv. 72 (1942).
16 PROSSER AND KEETON supra note 2 at 2-3.
THE CONCEprix FRAMEWORK 1 5
Seavey further argues that there is a common signature

to all tort actions.
In spite of these varied purposes served in actions of tort,

harm is the tort signature. In general, the action is based
upon the theory that one person has caused harm to
another. Thus, it is distinguished from criminal law,
which directly vindicates the interests of the state; from
the law of contracts, which gives sanction to promises;
and from the law of restitution, which seeks primarily to
prevent unjust enrichment. It is true that in such actions
as those for trespass and defamation, the existence of
harm is sometimes a legal fiction, and that a person may
become responsible for harm done by things or persons
under his control although his exercise of control has in
fact caused no harm. Nevertheless, the causing of harm
17
is predominantly the basis of tort actions.
Thus, tort actions cover situations where one person

causes harm to another.
2. "Tort" under Philippine Law
a. Existence of "Philippine Tort Law"
Is there tort under Philippine law?
The existence of "Philippine Tort Law" may be

assumed from the decisions of the Court using the
term "tort" and the fact that it appears in at least two
Philippine statutes. 18 There are also countless
Philippine law books on '"Torts and Damages" and a
course on the said subject matter has been taught in
7 SEArvEY, supranote 15 at 73.

18 P.D. No. 1521, "The Ship Mortgage Decree of 1978" and Batas
PambansaBig. 68, "The Corporation Code of the Philippines."
6 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON ToRTs AND QUASi-DEUCTS
Philippine law schools even prior to the current Civil

Code.
In the preface of his book 'Torts and Damages in

Philippine Law," Jarencio shares his experience in
teaching the course prior to the enactment of the
current Civil Code:
When we started our teaching career in 1938, we had the
good fortune of having been assigned to teach the subject
of "rorts and Damages." In looking for teaching
materials we found that the textbooks, notes and outlines
then available were patterned and based on the
American law on torts. Upon reflection we felt that the
presentation of the subject along the same lines as the
American law on torts was fundamentally erroneous in
so far as the Philippine law on torts was concerned for
the reason that the basic legal provisions governing most
legal wrongs which were known in American law on
torts were found in Articles 1902 to 1910 of the Spanish
Civil Code. Teaching the law on torts along the lines and
patterns of American tort law created the belief and
impression in the minds of many students that the
foundation of the law on torts in the Philippines was
common and not civil law.19
As Jarencio points out, there is something fund-

amentally wrong in teaching Philippine tort law using
materials based on common law, considering that the
Philippine law on tort is based on the Civil Code.20
The effect of this error is the creation of a belief or
19 HLARION JARENCIO, TORTS AND DAMAGES iN PHI'IPmE LAw, Preface

(2nd Ed.) 1977.
20 The same fundamental error is made when common law concepts are
employed even though the Civil Code provides for clear rules.
THE CONCEPTUAL FRAMEWORK 1 7
impression that common law tort and Philippine tort

law are the same.21
During Jarencio's time, the relevant civil law on the

matter consisted of Articles 1902 to 1910 of the Civil
Code. These Articles were found in the chapter of the
old Civil Code titled "Obligations Which Arise from
Fault or Negligence." Most of these provisions, along
with new provisions prepared by the Code Com-
mission, now comprise the chapter in the Civil Code
titled "Quasi-Delicts." If Jarencio's statement still
applies today, then this chapter on quasi-delicts is
now what comprises "Philippine Tort Law." But as
will be discussed further, it is not that simple.
i. Intent of the Framers
It appears that the intention of the Code Commission

was to reject the term "tort" in favor of the term
"quasi-delict." According to the Code Commission:
A question of nomenclature confronted the Commission.

After careful deliberation, it was agreed to use the term
"quasi-delict" for those obligations which do not arise
from law, contracts, quasi-contracts, or criminal offenses.
They are known in Spanish legal treatises as "culpa
aquiliana," "culpa extra-contractual" or "cuasi-delitos."
The phrase "culpa extra-contractual or its translation
"extra-contractual fault was eliminated because it did not
exclude quasi-contractual or penal obligations. "Aquilian
fault" might have been selected, but it was thought
inadvisable to refer to so ancient a law as the "Lex
Aquilia." So "quasi-delicts" was chosen, which more
2 The same belief or impression can be seen in a number of Supreme

Court cases where "tort' is used to refer to quasi-delict.
nearly corresponds to the Roman Law classification of

obligations, and is in harmony with the nature of this
kind of liability.
The Commission also thought of the possibility of

adopting the word "tort" from Anglo-American law. But
"tort" under that system is much broader than the
Spanish-Philippine concept of obligations arising from
non-contractual negligence. "Tort" in Anglo-American
jurisprudence includes not only negligence, but also
intentional criminal acts, such as assault and battery,
false imprisonment and deceit. In the general plan of the
Philippine legal system, intentional and malicious acts
are governed in the Penal Code, although certain
exceptions are made in the Project."22
Thus, the Commission chose the term "quasi-delict"

and rejected the term "tort" because the former best
described the civil action for damages envisioned
under the proposed code. The term "tort" was rejected
because the common law concept covered far more
than what the Commission envisioned. It seems,
therefore, that the original plan was to exclude
intentional and malicious acts from the coverage of
the concept because these are to be governed by the
Revised Penal Code.23
22 NAOLEoN MALOLOS AND TEODORiCO MARTIN, REPORT OF THE CODE

CoMMISIoN: WITH ANNOTATIONS, 161-162 (1951).
23 TimoEmO AQUINO, TORTS AND DAMAGES 4 (2005).
THE CONCEPTUAL FRAMEwORK 9
ii. Civil Code Text
The Civil Code text appears to reflect the intent of the

framers to reject the term tort. The Civil Code does
not even mention the term "tort."24
The old Civil Code also makes no mention of the

term. Garcia,25 writing in 1913, commented that while
tort law is well-developed and satisfactorily defined
in English and American Jurisprudence, one does not
even find the word "tort" in Spanish law.26 Garcia
went on to add:
The law courses given in Spanish Universities provide
for no such subject as Torts. Consequently, there exists
no exact translation in Spanish of the word tort with all
its legal significance in English. The nearest translation
that we can give is 'culpa extra-contractual." But in this
we are not giving the translation but its equivalent.27
But as Garcia explains, although no distinct and

separate department for torts existed under the
Spanish law, it did not mean that wrongs of this
24 Professor Ruben Carranza (the author's professor in "Torts &

Damages" and to whom the author owes his initial fascination with
the subject matter) in teaching the course "Torts & Damages" once
told his students to look for the Civil Code provisions that mention
tort and required them to be ready to report on them the next
meeting. Needless to say, every single one of his students failed to
comply with the assignment and anticipated a fair amount of rebuke
from their professor for their abject failure. The professor, after toying
with the students for a while, did explain that there really was no
mention of the word "tort" in the Civil Code.
25
Eutiquiano Garcia, Torts Under the Spanish Law. 2 (1) PHIL. L. J., 27
(1913).
26 Id.
27 Id.
10 1 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON Tons AND QUASI-DEUCTS
character could have no redress in court.28 This was

because tort actions under the Spanish law were
instituted "under the guise of another name."2 9
Garcia points out that even then, laws describing the

nature and character of a tort were not wanting. He
argues that the Civil Code principally "contain[s]
various provisions relating to the law of torts."30 He
says that while Article 1902 says nothing about tort,
31
yet in effect, it gives the exact description of a tort.
Article 1902 of the Old Civil Code stated:

ARTICLE 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.
This Article is almost identical with the first sentence

of what is now Article 2176.
ARTICLE 2176. Whoever by act or omission causes
damage to another, there being fault or negligence, is
obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual relation
between the parties, is called a quasi-delict and is
governed by the provisions of this Chapter. (1902a)
Therefore, if Garcia is correct about Article 1902, then

it can be said that the first sentence of Article 2176
provides the exact description of a tort.
23Id.
2 Id.
30 Id. at 27-28.
31 Id. at 28.
THE CONCEPTUJl. FRAMEWORK 1 11
Based on Jarencio'sand Garcia's statements, it may be

argued that even though the old Civil Code did not
use the term tort, the provisions on culpa aquiliana
comprise Philippine Tort Law. But assuming this is
correct, the same cannot be said for the current Civil
Code because of the express rejection of the term
"tort" based on the Code Commission's comments.
However, while it is true that the Code Commission

rejected the term "tort" in favor of the term "quasi-
delict," it did not completely reject the concept of tort
as evidenced by the Civil Code provisions which seem
to correspond to common law torts.
Aquino argues that the Civil Code as enacted deviated

from the original plan. 32 Furthermore, it seems that
the Civil Code as enacted and the Report of the Code
Commission reveal an evident intent to adopt the
common law concept of tort and to incorporate the
different, intentional and unintentional common law
torts in the Civil Code.3 For instance, Articles 19, 20
and 21 are said to even be broader than the common
law tort. The Civil Code also provides for inde-
pendent civil actions for violations of civil liberties,
and for violation of the right to privacy as well as for
defamation, fraud and physical injuries. These civil
actions roughly correspond to certain common law
torts.
32
AQuNO, supra note 23.
3 Id. at 5.
12 1 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QuASI-DEuCTS
b. Scope of Philippine Tort Law
Thus, although the term "tort" is never used in the

Civil Code, tort as a concept is reflected in a number
of Civil Code provisions. These provisions comprise
Philippine Tort Law and are not limited to the chapter
on "Quasi-Delicts." Thus, the exact boundaries of
Philippine Tort Law are unclear.
According to ]arencio:
The field of "torts" lies between the field of "contracts"

and the field of "crimes but the boundary lines between
these three fields of civil liability are not clearly defined.
Between civil actions for breach of contract and tort, on
the one hand, and civil actions for tort and crimes, on the
other, there exists a twilight zone, so to speak, where it
is difficult to determine sometimes whether the civil
liability is based on a contract, on a tort, or on crime.3
(emphasis supplied)
Nevertheless, it would seem that the rules on quasi-

delict would form part of Philippine Tort Law.
Carpio,35 in the course of explaining intentional torts in

Philippine Law,36 argues that a quasi-delict is an area
34
JA NCIo, supra note 19 at 1.
3 The author means no disrespect by not referring to Antonio Carpio as
"Justice," but after much thought, the honorific was not used for two
reasons. First, Justice Carpio is being cited here as a legal scholar and
not as a magistrate. Hence, the author used the same convention for
other legal scholars (i.e. last names only in italics) in this volume.
Second, Justice Carpio wrote the Article referred to while still a law
student, the Chairman of the Editorial Board of the Philippine Law
Journal.
36 Antonio Carpio, Intentional Torts in Philippine Law, 47 PHIL. L. J. 649
(1973).
THE CONCEPTUA FRpAmEWORK I 13
of tort law. While Carpio accepts that tort and quasi-

delict are two distinct concepts coming from two
different legal traditions, he considers quasi-delicts as
forming one area of Philippine Tort Law. He writes:
For the purpose of this inquiry the general plan shall be
to classify torts according to their nature, to wit: (1)
Intentional torts, which may be broken down into two:
those which were adopted from American juris-
prudence, and those which were taken from the codes of
civil law jurisdictions; (2) Negligent torts, which also be
divided into two: those which are covered by Article
2176 and those which are not; (3) Strict liability tort, such
as the Workmen's Compensation Act, Articles 1171, 2183
and 2187 of the Civil Code. 37
Thus, under this framework, a quasi-delict is a kind of

tort. In other words, a quasi-delict is a subset of tort
and hence, every quasi-delict is a tort. But certainly
not every tort is a quasi-delict.
c. Definition of "Tort" Under Philippine Law
Is there an acceptable definition of tort under

Philippine Law? Because there is no Philippine
statutory definition for tort, one would have to look at
jurisprudence for a possible definition under Philip-
pine law.
In Naguiat v. NLRC, 38 the Court stated that tort

"consists in the violation of a right given or the
omission of a duty imposed by law"3 9 or simply "a
37Id.
38 Naguiatv. NLRC, G.R No. 116123,13 March 1997.
39 Id.
14 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DEUCTS
breach of a legal duty."40 But as would be discussed
further, these definitions are arguably obiter dicta.41
In this case, Clark Field Taxi Inc. ("CFTI") held a

concessionaire's contract with the Army Air Force
Exchange Services ("AAFES") for the operation of taxi
services within Clark Air Base. Sergio Naguiat was
CFTI's president, while Antolin Naguiat was its vice-
president. Sergio Naguiat also owned Sergio F.
Naguiat Enterprises, Incorporated ("SNEI"). Due to
the phase-out of the US military bases in the
Philippines, the AAFES was dissolved and the
services of the drivers were officially terminated. The
AAFES Taxi Drivers Association ("Union") and CFTI
held negotiations and arrived at an agreement that the
separated drivers will be given P500 for every year of
service as severance pay. While most of the drivers
accepted this, some drivers refused and through a
labor organization which they subsequently joined,
filed a complaint against "Sergio F. Naguiat doing
business under the name and style Sergio F. Naguiat
Enterprises, Inc.," among others, for payment of sepa-
ration pay due to termination/phase-out. The com-
plaint was later amended to include CFTI with
4 Id.
41
In Francisco v. CA, G.R. No. 142947, 19 March 2002, the Court
explained what an obiter dictum is and said: "An obiter dictum has been
defined as an opinion expressed by a court upon some question of law
which is not necessary to the decision of the case before it. It is a
remark made, or opinion expressed, by a judge, in his decision upon a
cause, "by the way," that is, incidentally or collaterally, and not
directly upon the question before him, or upon a point not necessarily
involved in the determination of the cause, or introduced by way of
illustration, or analogy or argument. Such are not binding as
precedent."
THE CONcEPTUAL FRAMEWORK I 15
Antolin Naguiat, as vice president and general

manager, as party respondent.
The Court's tort-related discussion arose in connec-

tion with the issue regarding Sergio and Antolin
Naguiat's solidary liability as officers of SNEI and
CFTI. It was alleged that SNEI and CFTI were close
corporations owned by the Naguiat family. Under the
Corporation Code, stockholders actively engaged in
the management or operation of the business and
affairs of a close corporation are personally liable for
corporate torts. The Court recognized, however, that
there was no jurisprudential definition for corporate
tort. Instead, the Court provided the definition for
tort. It said:
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. (citations omitted)
The Court defined tort as a breach of a legal duty to

characterize the failure of CFTI to grant separation
pay under Article 283 of the Labor Code as a tort and
consequently to make its stockholder personally
liable.
But, as previously averred, it can be argued that the

Naguiat definition is not binding because it is part of
the obiter dictum of the case. Sergio Naguiat was
already found to be jointly and severally liable for
obligations of the corporation under the ruling in A.C.
16 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-lEUCTS
Ransom Labor Union-CCLU vs. NLRC 42 even prior to

the Court's discussion on corporate torts. The Court
ruled that applying the ruling in A.C. Ransom, Naguiat
fell within the meaning of an "employer" as con-
templated by the Labor Code, who may be held
jointly and severally liable for the obligations of the
corporation to its dismissed employees.
In Liwayway Vinzons-Chato v. Fortune,43 the Court

stated that, "[a] tort is a wrong." Needless to say, this
definition is too broad.
It further stated that, "a tortuous act is the commission

or omission of an act by one, without right, whereby
another receives some injury, directly or indirectly, in
person, property, or reputation." This is not com-
pletely accurate because there is a tort called "abuse of
right" where the act is committed in the exercise of a
right or performance of a duty.44
In this case, the Court may have felt that it had to

define "tort" and "tortuous act" as it characterized
Article 32 of the Civil Code as a tort.
The characterization of Article 32 as a "tort" appeared

important to the disposition of the case because the
petitioner's defense was that bad faith was not spe-
cifically alleged in the complaint against her. The
Court argued that if Article 32 were a tort, bad faith
42
Cited in Naguiat v. NLRC, G.R. No. 116123, 13 March 1997 as "142
SCRA 269,10 June 1986."
43 Liwayway Vinzons-Chato v. Fortune,G.R. No. 141309,19 June 2007.
44 Article 19 Civil Code.
THE CONCEpnUA FRAMEwoRK I 17
and malice were not necessary and failure to spe-

cifically allege the same will not amount to failure to
state cause of action. The Court reasoned that:
There are cases in which it has been stated that civil
liability in tort is determined by the conduct and not by
the mental state of the tortfeasor, and there are
circumstances under which the motive of the defendant
has been rendered immaterial.
Thus, in this case, the Court seems to be saying that

intent is not an element of tort.
It is arguable that the definition of tort in Vinzons-

Chato is non-binding for being part of obiter dictum., In
this case, it was not necessary to characterize Article
32 as a tort to argue that malice or bad faith was not
necessary. Several cases decided prior to this case
ruled that bad faith is not a requirement for an action
based on Article 32.45
d. Elements of Tort
According to Prosser and Keeton, the elements of tort

are:"
1. A duty or obligation recognized by law, re-
quiring a person to conform to a certain stan-
dard of conduct, for the protection of others
against unreasonable risks;
2. A failure on the person's part to conform to the
standard: a breach of a duty;
45 See Chapter IX on Independent Civil Actions.

46
PROSSER AND KEETON, supra note 2 at 164-165.
3. A reasonably close causal connection between

the conduct and resulting injury; (legal cause;
proximate cause)
4. Actual loss or damage resulting to the interests
of another.
These being the elements of common law tort, they

are not binding in our jurisdiction. However, the
Court has adopted these elements in a few cases.
In Garciav. Salvador,47 the Court said that the elements

of actionable conduct are:
* duty;
" breach;
" injury; and
" proximate causation.
Based on the ponencia, it appears that the Court is

saying that these are the elements of an intentional
tort under Article 20 of the Civil Code. In this case,
Ranida Salvador underwent a medical examination as
a pre-requisite for regular employment at the Com-
munity Diagnostic Center ("CDC"). Orlando Garcia, a
medical technologist, conducted the Hepatitis B
Surface Antigen test ("HBs Ag") and CDC issued the
test result indicating that Salvador was "HBs Ag:
Reactive," which indicated the name and signature of
Garcia as examiner and the rubber stamp signature of
Bu Castro as pathologist. Based on this medical
report, Salvador was terminated from employment for
failing the physical examination. When Salvador
47
Garciav. Salvador,G.R. No. 168512,20 March 2007.
THE CONCEPTUAL FRAzwi=WO I 19
informed her father, Ramon, about her ailment, the

latter suffered a heart attack and was confined at the
Bataan Doctors Hospital. During Ramon's confine-
ment, Salvador took another HBs Ag test at the said
hospital and the result indicated that she was non-
reactive. She informed her company of this develop-
ment but was told that the test conducted by CDC
was more reliable because it used the Micro-Elisa
Method. Thus, Salvador went back to CDC for
confirmatory testing, and this time, the Anti-HBs test
conducted on her indicated a "Negative" result. She
took the test several times yielding the same result.
The Med-Tech Officer-in-Charge of CDC, issued a
Certification correcting the initial result and ex-
plaining that Garcia interpreted the delayed reaction
as positive or reactive.
Salvador and her father filed a complaint for damages

against Garcia and Castro, claiming that, by reason of
the erroneous interpretation of the results, Salvador
lost her job and suffered serious mental anxiety,
trauma and sleepless nights, while Ramon was hospi-
talized and lost business opportunities.
The trial court dismissed the complaint for failure to

present sufficient evidence to prove the liability of
Garcia and Castro. But the appellate court reversed
the ruling and ordered Garcia to pay damages.
The Court ruled that all the elements of actionable

conduct (i.e. duty, breach, injury and proximate
causation) were present. The Court said:
Owners and operators of clinical laboratories have the

duty to comply with statutes, as well as rules and regu-
lations, purposely promulgated to protect and promote
the health of the people by preventing the operation of
substandard, improperly managed and inadequately
supported clinical laboratories and by improving the
quality of performance of clinical laboratory exami-
nations. Their business is impressed with public interest,
as such, high standards of performance are expected
from them. (citation omitted, emphasis supplied)
The Court held that "violation of a statutory duty is

negligence. Where the law imposes upon a person the
duty to do something, his omission or non-per-
formance will render him liable to whoever may be
injured thereby." After citing the relevant statutes and
regulations, the Court found that Garcia failed to
comply with the standards because he conducted the
test without the supervision of the pathologist and
released the result without authorization of the latter.
As the result of this breach, the Court found that
Salvador suffered injury.
After quoting Article 20, the Court explained that:
The foregoing provision provides the legal basis for the

award of damages to a party who suffers damage
whenever one commits an act in violation of some legal
provision. This was incorporated by the Code Com-
mission to provide relief to a person who suffers damage
because another has violated some legal provision.
(citations omitted)
Two years after Garcia v. Salvador, the Court decided

Lucas v. Tuafio,48 which the Court characterized as a
48 Lucas v. Tuafo, G.R. No. 178763, 21 April 2009.

THE CONCEPTUAL FAIEwoRK I 21
medical negligence case. The Court explained that a

medical negligence case is almost always anchored on
the alleged violation of Article 2176 of the Civil Code.
So it seemed that the Court was characterizing the
action as a quasi-delict. But it also said:
But just like any other proceeding for damages, four
essential elements i.e., (1)duty; (2) breach; (3) injury; and
(4) proximate causation, must be established by the
plaintiff/s. All the four elements must co-exist in order to
find the physician negligent and, thus, liable for
damages. (citation omitted)
Considering that there was no other legal basis cited,

the Court appeared to have used the four elements to
establish the existence of medical negligence under
Article 2176.
Subsequently, in Ocean Builders v. Spouses Cubacub,49

the Court said that to successfully prosecute an action
anchored on tort, three elements must be present:
(1) duty
(2) breach
(3) injury and proximate causation °
In this case, Bladimir Cubacub was employed as a

maintenance man by Ocean Builders Construction
Corp. When Bladimir was afflicted with chicken pox,
he was advised by Dennis Hao, the company's
general manager, to rest for three days, which he did
49 Ocean Builders v. Spouses Cubacub, G.R. No. 150898,13 April 2011.

50 As can be seen, there are four elements and not three as indicated by
the Court.
22 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-OEUCTS
at the company's "barracks" where he lived free of

charge. Three days later, Bladimir went about his
usual chores of manning the gate of the company
premises. But later in the afternoon, he asked a co-
worker, Ignacio Silangga, to accompany him to his
house so he could rest. Informed by Silangga of
Bladinir's intention, Hao gave Bladimir P1,000 and
ordered Silangga to instead bring Bladimir to the
nearest hospital. Along with Narding Vergara,
Silangga brought Bladimir to the Caybiga Community
Hospital, a primary-care hospital around one kilo-
meter away from the office of the company. Bladimir
was confined and the next day, a doctor of the
hospital informed Narding that they needed to talk to
Bladiniir's parents. That evening, Bladimir's parents,
spouses Cubacub, with their friend Dr. Hermes Frias,
arrived at the Caybiga Hospital and transferred
Bladimir to the Quezon City General Hospital
("QCGH") where he was placed in the intensive care
unit and died the following day. The death certificate
issued by the QCGH recorded Bladimir's immediate
cause of death as cardio-respiratory arrest and the
antecedent cause as pneumonia. On the other hand,
the death certificate issued by Dr. Frias recorded the
causes of death as cardiac arrest, multiple organ
system failure, septicemia and chicken pox. Spouses
Cubacub filed a complaint for damages against Ocean
Builders and Hao, alleging that the latter was guilty of
negligence, which resulted in the deterioration of
Bladimir's condition leading to his death. The trial
court dismissed the complaint, holding that Hao was
not negligent. The appellate court reversed the
decision and held that Hao's failure to bring Bladimir
THE CoNcEPTUAL FRAMEWORK I 23
to a better-equipped hospital was a violation of

Article 161 of the Labor Code.
The Court reversed the appellate court.
The Court characterized the action for damages as

based on tort. It said:
At the onset, the Court notes that the present case is one
for damages based on torts, the employer-employee
relationship being merely incidental. To successfully
prosecute an action anchored on torts, three elements
must be present, viz.: (1) duty, (2) breach, (3) injury and
proximate causation. The assailed decision of the
appellate court held that it was the duty of petitioners to
provide adequate medical assistance to the employees
under Art. 161 of the Labor Code, failing which a breach
is committed.
The Court found that Hao complied with his

obligation under Article 161 of the Labor Code.
Presumably, the basis of the tort action in this case is

Article 20 as in the case of Garciav. Salvador.
In his Dissenting Opinion, Justice Bersamin charac-

terized the action as based on quasi-delict and found
that Hao was negligent.
It is interesting to note that in the Court's decision, it

was narrated that the spouses Cubacub filed a
complaint for damages "alleging that Hao was guilty
of negligence which resulted in the deterioration of
Bladimir's condition leading to his death." It must
also be remembered that the trial court dismissed the
complaint because it found that Hao was not
24 I ANALYSIS OF PHIIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DEUCTS
negligent. It was the appellate court which ruled that

there was a violation of Article 161. But even in his
petition to the Court, Hao's defense was anchored on
due diligence.
It is interesting that the Court characterized the action

as based on tort although at the end of its decision, it
stated that the company and Hao were not guilty of
negligence. This is interesting because negligence
does not appear to be relevant in the context of the
elements identified by the Court nor in the violation
of the legal provision. Regardless of whether the
provision was violated negligently or not, the violator
would be liable for damages. Negligence of the
employer would only be relevant if the action was
based on quasi-delict.
Nevertheless, based on these cases, it seems that the

Court has adopted the four elements of tort under
common law and applied it to cases which could fall
under Article 20 of the Civil Code.
It would be fascinating to know how the Court may

apply the same four elements to other torts, consi-
dering that many of these torts have their own
"elements" provided by jurisprudence.
3. The Purpose of Tort Law
Because of the difficulty in defining tort, it has been

argued that "the most profitable method of delimiting
THE CoNcEmul FRmWoK I 25
the field of tort liability is to describe it in terms of the

policies which have brought it onto existence."'5
In fact, Jarencio argues that:
It is now well accepted that the unitary character of

American Tort Law is found not in its doctrinal deve-
lopment but in the broad notions of policy from which
these doctrines derive and that it is in the social rather
than the legalistic basis of tort law that affords the
unifying principles.5 2
Thus, understanding the purpose of tort law may help

in determining whether a particular cause of action is
a tort action or not.
The purpose of tort law is compensation of indi-

viduals for losses which they have suffered within the
scope of their legally recognized interests.53 Providing
compensation for harm is perhaps the important
purpose of tort law.M 4
According to American Jurisprudence:
A primary purpose of tort law is that those responsible

for the wrong should bear the cost of their tortious
conduct. Thus, a principal function of tort law is to
compensate a victim for the wrongdoing or unreason-
able conduct of the tortfeasor.
Courts have stated the policy or purposes of the tort

compensation system to be -
51 FLEVNG, supra note 2.

52 JAREao, supra note 19 at 6.
5
3 PROssER AND KEE=N, supra note 2 at 5-6.
S'SEAvEY, supra note 15.
* the compensation of innocent parties.
" shifting the loss to responsible parties or distri-
buting it among appropriate entities.
" the deterrence of wrongful conduct or conduct
that creates an unreasonable risk of injury to
others.
" providing an incentive to prevent future harm
through the payment of damages. 5 (citations
omitted)
Thus, while the primary purpose of tort is compen-

sation, the compensation itself can serve several
purposes.
As Hershovitz argues, torts serve a "corrective justice"

purpose "by requiring wrongdoers to repair the
wrongful losses they cause." 56
Because tort law "is concerned with the allocation of

losses arising out of human activities,"5 7 it also serves
an economic purpose as it "promotes efficiency by
giving people incentives to take account of costs they
impose on others."58
But apart from the corrective justice and economic

reasons, tort is also supposed to provide deterrent to
harmful conduct.
5 74 Am. Jur. 2d Torts § 2

Scott Hershovitz, Harry Potter and te Trouble with Tort Theory, (5
October 2010). STAWORD L.REV., Forthcoming; U of Michigan Public
Law Working Paper No. 219; U of Michigan Law & Econ, Empirical
Legal Studies Center Paper No. 10-027. Available at SSRN:
http'//ssrrLcom/abstractff1687923.
57 PROSR AND KEETON, supranote 2 at 6.
-%HERSHovrrz, supra note 56.
THE CONcEPuA FRAMEWORK 1 27
Nevertheless, these effects all flow from the type of

damages that may be awarded for a particular type of
tort and therefore do not result from the torts
themselves. All that tort law does is point to who is
liable. Because losses or injury are inevitable,5 9 the
"purpose of the law of torts is to adjust these losses,
and to afford compensation for injuries sustained by
one person as a result of the conduct of another."6°
As to how the compensation will affect the injured,

the wrongdoer and society in general will depend on
the rules determining the nature and amount of
damages to be awarded. For that, one would have to
turn to the law on damages.
B. THE CONCEPT OF A QuAsI-DELIcT
1. Historical Background
As discussed earlier in this chapter, the Code

Commission chose the term "quasi-delict" instead of
"tort." The Commission agreed to use the term "quasi-
delict" for those obligations which do not arise from
6
law, contracts, quasi-contracts, or criminal offenses. '
As interpreted by the Code Commission, the term
"quasi-delict" corresponds to what is referred to in
Spanish legal treatises as "culpa aquiliana," "culpa-
extra-contractual" or "cuasi-delitos." 62
59 Id.
60 Wright, Introduction to the Law of Torts, 1944, 8 CAm. L.J. 238, cited in
PROs-m AND KEmON, supra note 2 at 6.
61
MALOLm AND MARTN, supra note 22 at 161.
62 Id.
28 1 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON ToRS AND QUASI-DEUCTS
In Barredo v. Garcia,63 a case decided under the old

Civil Code, the Court reaffirmed 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 a delict or crime.
The Court added:
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 dejfazer emienda, porque, como quier que el
non fizo a sabiendas el dafio al otro, pero acaescio por su
culpa."
The distinctive nature of cuasi-delitossurvives 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
1902-1910. This portion of the Civil Code is exclusively
devoted to the legal institution of culpa aquiliana. 64
Thus, the concept of "quasi-delict" existed even under

the old Civil Code even though the express use of the
term is found in the current code.
63 Barredov. Garcia,G.R. No. 48006, 8 July 1942.

6Id.
THE CONCPtUA. FAmEwox I 29
2. Nature
Article 1157 of the Civil Code provides:

ARTICLE 1157. Obligations arise from:
(1) Law;
(2) Contracts;
(3) Quasi-contracts;
(4) Acts or omissions punished by law; and
(5) Quasi-delicts. (1089a)
Thus, a quasi-delict is one of the five sources of

obligation. Article 1157 was derived from Article 1089
of the old Civil Code, which stated:
ARTICLE 1089. Obligations are created by law, by

contract, by quasi-contract, and by unlawful acts or
omissions or by those in which any kind of fault or
negligence occurs.
Thus, Article 1157 lists the same obligations, except

that the term "quasi-delicts" replaces "[obligations] in
which any kind of fault or negligence occurs."
Garciaexplains:
Article 1089 divides obligations into three classes: (a)

those arising from law, (b) those arising from contracts
or quasi-contracts and (c) those arising from illicit acts
and omissions or from acts and omissions not punished
by law in which any kind of fault or negligence
intervenes.6
65
GARcIA, supra note 25 at 29.
30 I AAYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON ToRTs AND QUASI-DEUCTS
The third class can be further divided into two: (a)

crimes or misdemeanors and (b) acts or omissions in
which fault or negligence intervenes but not punished
by law.
3. Governing Provisions
Article 1162 provides that obligations derived from

quasi-delict are governed by the provisions of
Chapter 2,66 Title XVI167 of Book W 6 of the Civil Code,
and by special laws. 69 The said Chapter 2 consists of
Articles 2176 to 2194.
Thus, based on Article 1162, quasi-delicts are

primarily governed by 19 Articles of the Civil Code
and by special laws.
4. Definition
Article 2176 provides:

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. (1902a)
Taken literally, Article 2176 defines a quasi-delict as

the fault or negligence that accompanies an act or
omission which causes damage to another, there
6Chapter 2 is titled "Quasi-Delicts."

67
Title XVII is titled "Extra-Contractual Obligations."
68 Book IVis titled IObligations and Contracts."
69 Article 1162.
THE CONCEPTUm FRAMEwORK I 31
being no pre-existing contractual relation between the

parties.
5. Scope
a. "Intentional" Acts?
Under Article 2176, it is clear that a cause of action

based on quasi-delict requires that the act or omission
be committed with negligence. This means that there
must have been no intent on the part of the defendant
to harm the plaintiff.
In Cangco v. Manila Railroad,70 the Court, in explaining

the distinction between culpa contractual and culpa
aquilianaunder the old Code, quoted Manresa, stating
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 quotation is instructive because it shows the

relationship between "voluntary act or omission,"
"willful intent" and "negligence." Clearly, a voluntary
act is not the same as an act done with willful intent,
the former merely referring to an act freely done or
without compulsion while the latter referring to an act
done for the purpose of harm. A negligent act or
70 Cangco v. Manila Railroad, G.R. No. 12191,14 October 1918.

71 Id. But in this case, whether or not culpa aquiliana covered negligent
and intentional acts was not an issue.
omission, therefore, may be a voluntary act but cannot

be an intentional act.
However, divergent rulings have raised the question

whether a quasi-delict contemplates "intentional acts."
In Elcano v. Hill,72 the Court said that:

concept of culpa aquiliana includes acts which are
criminal in character or in violation of the penal law,
whether voluntary or negligent.73
While the Court used the term "voluntary" and not

"intentional," the drift of the statement is that culpa
aquiliana covers criminal acts done with intent or
negligence.
In this case, the Court was simply tasked with ruling

whether a prior acquittal in a criminal action barred a
subsequent civil action based on quasi-delict. In this
case, the spouses Elcano filed a complaint for recovery
of damages against Reginald Hill and his father,
Marvin, alleging that Reginald killed Agapito Elcano,
their son. In a prior criminal case, Reginald was
acquitted on the ground that his act was not criminal,
because of "lack of intent to kill, coupled with
mistake." The trial court dismissed the complaint for
damages. Thus, the relevant issue before the Court
was whether the civil action for damages was barred
by the acquittal of Reginald in the criminal case
wherein the action for civil liability was not reversed.
The Court ruled:
72 Elcano v. Hill, G.R. No. L-24803, 26 May 1977.

73Id.
THE CONCETAL FRAMEWORK 1 33
The first issue presents no more problem than the need

for a reiteration and further clarification of the dual
character, criminal and civil, of fault or negligence as a
source of obligation which was firmly established in this
jurisdiction in Barredovs. Garcia,73 Phil. 607. In that case,
this Court postulated, on the basis of a scholarly
dissertation by Justice Bocobo on the nature of culpa
aquiliana in relation to culpa criminal or delito and mere
culpa or fault, with pertinent citation of decisions of the
Supreme Court of Spain, the works of recognized
civilians, and earlier jurisprudence of our own, that the
same given act can result in civil liability not only
under the Penal Code but also under the Civil Code.
(emphasis supplied)
But the Court did not stop with the reiteration of the
rule. It explained that:
Contrary to an immediate impression one might get
upon a reading of the foregoing excerpts from the
opinion in Garcia-that the concurrence of the Penal
Code and the Civil Code therein referred to contemplate
only acts of negligence and not intentional voluntary
acts-deeper reflection would reveal that the thrust of
the pronouncements therein is not so limited, but that
in fact it actually extends to fault or culpa. This can be
seen in the reference made therein to the Sentence of
the Supreme Court of Spain of February 14, 1919,
supra, which involved a case of fraud or estafa, not a
negligent act. (emphasis supplied)
Thus, the Court argued that not only can the same act
constitute a crime and a quasi-delict at the same time,
it further pointed out that the nature of such acts may
be negligent or intentional. It justified this by
referring to the 14 February 1919 decision of the
Supreme Court of Spain, which involved a fraudulent
act and not a negligent act.
34 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUAS-DEUCTS
But it may be argued that the citation of this case was

not for the purpose of ruling that a quasi-delict can
cover acts with criminal intent. The case was cited in
Barredo v. Garcia as basis for ruling that the same act
can be both a criminal act and covered by Article 1902
at the same time. Even assuming arguendo that the
case serves as basis for saying that Article 1902 of the
old code covers intentional criminal acts, it cannot be
the basis of stating that Article 2176 of the current
code also covers intentional criminal acts, because the
intent of the framers and the text of the Civil Code
imply differently.
The Court also explained that the text of the Civil

Code no longer uses the term "not punishable by
law," which in its opinion, made it clear that the
concept of culpa aquiliana included acts which are
criminal in character or in violation of the penal law,
whether voluntary or negligent. While the deletion of
the phrase does imply that a quasi-delict can cover
acts criminal in character, it does not necessarily
follow that it covers intentional criminal acts. It could
simply mean that quasi-delicts can cover acts
committed through criminal negligence.
In this case, the Court realized that Article 2177 posed

a problem for the rule that the concept of quasi-delict
covers intentional criminal acts because it states:
ARTICLE 2177. Responsibility for fault or negligence
under the preceding Article is entirely separate and
distinct from the civil liability arising from negligence
under the Penal Code. But the plaintiff cannot recover
THE CONCEPTUAL FRAMEWORK I 35
damages twice for the same act or omission of the
defendant. (emphasis supplied)
Article 2177 implies that the acts covered by Article

2176 are acts committed with negligence.
In its defense, the Court argued:
Although, again, this Article 2177 does seem to literally

refer to only acts of negligence, the same argument of
Justice Bacobo about construction that upholds "the
spirit that giveth life" rather than that which is literal
that killeth the intent of the lawmaker should be
observed in applying the same. And considering that
the preliminary chapter on human relations of the new
Civil Code definitely establishes the separability and
independence of liability in a civil action for acts criminal
in character (under Articles 29 to 32) from the civil
responsibility arising from crime fixed by Article 100 of
the Revised Penal Code, and, in a sense, the Rules of
Court, under Sections 2 and 3(c), Rule 111, contemplate
also the same separability, it is "more congruent with
the spirit of law, equity and justice, and more in
harmony with modem progress," to borrow the
felicitous relevant language in Rakes vs. Atlantic Gulf and
PacificCo., 7 Phil. 359, to hold, as We do hold, that Article
2176, where it refers to "fault or negligence," covers not
only acts "not punishable by law" but also acts criminal
in character, whether intentional and voluntary or
negligent. (emphasis supplied)
Therefore, the Court defended its interpretation by

echoing the justification in Barredo v. Garcia that a
contrary interpretation would "kill" the intent of the
lawmaker. It must be noted that in the case of Barredo
v. Garcia, this argument was justified because the
contrary interpretation would have made culpa
aquiliana virtually non-existent as a remedy. But in
this case, interpreting Article 2176 as covering only

negligent acts would not have the same effect. In fact,
it would uphold the intent of the framers.
But Elcano v. Hill is not alone in arguing that an

intentional criminal act can be a quasi-delict.
In Andamo v. IAC, 74 the Court stated that:

Article 2176, whenever it refers to "fault or negligence,"
covers not only acts "not punishable by law" but also
acts criminal in character, whether intentional and
voluntary or negligent.
In this case, Emmanuel and Natividad Andamo

("Andamos") were the owners of a parcel of land in
Cavite, which was adjacent to that of a religious
corporation ("Corporation"). The Corporation cons-
tructed waterpaths and contrivances, including an
artificial lake on its property, which allegedly inun-
dated and eroded the Andamos' property, caused a
young man to drown, damaged their crops and
plants, washed away costly fences, endangered the
lives of the Andamos and their laborers during rainy
and stormy seasons, and exposed plants and other
improvements to destruction. The Andamos instituted
a criminal action against the officers and directors of
the Corporation for destruction by means of
inundation under Article 324 of the Revised Penal
74
Andomo v. AC, G.R. No. 74761,6 November 1990.
Code.75 Later, the Andamos filed a civil case for

damages against the Corporation.
The trial court, acting on the Corporation's motion to

dismiss or suspend the civil action, issued an order
suspending further hearings in the civil case until
after judgment in the related criminal case. The
appellate court affirmed the order.
The Court agreed with the Andamos that the civil

action was based on a quasi-delict. It is in this context
that the Court issued the above-quoted statement.
However, it did not explain nor provide a legal basis
for its statement. Perhaps this is because whether or
not a quasi-delict covered intentional acts was not an
issue in this case but only whether it can proceed
independently of a criminal case for the same act.
In contrast to the Elcano and Andamo cases, the Court

in Baksh v. CA, 76 said that the quasi-delict:
is limited to negligent acts or omissions and excludes the
notion of willfulness or intent.
In this case, Marilou Gonzales filed a complaint for

damages against Gashem Shookat Baksh for the
alleged violation of their agreement to get married.
She alleged Baksh courted and proposed to marry her
and they agreed to get married after the end of the
school semester. Later, Baksh forced her to live with
75 Curiously, the crime charged against the corporation was Article 324
of the Revised Penal Code which was repealed by P.D. No. 1613 on 7
March 1979. The criminal case was filed on July 1982.
76 Baksh v. CA, G.Rt No. 97336,19 February 1993.
38 I ANALYSIS OF PHILIPPINE LAW AND JURISPRUDENCE ON TORTS AND QuAsI-DEUCTS
him and she lost her virginity. She alleged that a week
before the filing of the complaint, Baksh maltreated
her and threatened to kill her. A day before the filing
of the complaint, Baksh repudiated their marriage
agreement and asked her not to live with him
anymore. The trial and appellate courts ruled against
Baksh.
The Court affirmed the rulings of the lower courts. In

this case, the basis for the award of damages was
Article 21 and not Article 2176. However, the scope of
Article 2176 was mentioned as the Court was
explaining the importance of Article 21. It said that
Article 2176:
is limited to negligent acts or omissions and excludes the
notion of willfulness or intent. Quasi-delict, known in
Spanish legal treatises as culpa aquiliana, is a civil law
concept while torts is an Anglo-American or common
law concept. Torts is much broader than culpa aquiliana
because it includes not only negligence, but intentional
criminal acts as well such as assault and battery, false
imprisonment and deceit. In the general scheme of the
Philippine legal system envisioned by the Commission
responsible for drafting the New Civil Code, intentional
and malicious acts with certain exceptions, are to be
governed by the Revised Penal Code while negligent acts
or omissions are to be covered by Article 2176 of the
Civil Code. In between these opposite spectrums are
injurious acts which, in the absence of Article 21, would
have been beyond redress. Thus, Article 21 fills that
vacuum. It is even postulated that together with Articles
19 and 20 of the Civil Code, Article 21 has greatly
broadened the scope of the law on civil wrongs; it has
become much more supple and adaptable than the
Anglo-American law on torts. (citations omitted)
THE CONCEPTuAL FRmEwoRK 139
Thus, the Court explained that Article 2176 only

covered negligent acts and omissions on the basis of
the "general scheme of the Philippine legal system
envisioned by the [Code] Commission." It also
answered one of the arguments against limiting
Article 2176 to negligent acts, which is that it would
leave intentional injurious but non-criminal acts
without redress. To that argument, this case points to
Article 21 to fill the alleged vacuum.
Taking all the cases into consideration along with the

intent framers of the Civil Code, it is more in accord
with sound doctrine to rule that a quasi-delict is
committed by negligence and without willful intent to
injure although the act may be voluntary. An act may
be voluntary and negligent at the same time, but it
cannot be "intentional" in the sense that there is intent
to harm and negligent at the same time.
b. Damage to Property
Can there be a quasi-delict if no one is injured but

property is damaged?
In Cinco v. Canonoy,77 the Court ruled that the concept

of quasi-delict "is so broad that it includes not only
injuries to persons but also damage to property.""
In this case, Porfirio Cinco filed complaint for

recovery of damages resulting from a vehicular acci-
7 G.R. No. L-33171, 31 May 1979.

7 Cinco v. Canonoy, G.R. No. L-33171, 31 May 1979, citing Barredo v.
Garcia,73 Phil. 607, at 620.
40 1 ANALYSIS OF PHIUPPINE LAw AND JURISPRUDENCE ON TORTS AND QUASI-DEUCTS
dent involving his automobile and a jeepney driven

by Romeo Hilot. Subsequently, a criminal case was
filed against the driver. The city court ordered
suspension of civil case. Judge Canonoy dismissed the
case on the ground that there was no grave abuse of
discretion in suspending the civil action inasmuch as
damage to property is not one of the instances when
an independent civil action is proper.
The Court found that based on the complaint filed, it

was evident that the nature and character of the action
was quasi-delictual predicated on Articles 2176 and
2180. The Court found that the plaintiff made the
essential averments. Thus, the civil action may
proceed independently of the criminal action. But
after making this ruling, the Court went on to say
that:
The concept of quasi-delict, as enunciated in Article 2176
of the Civil Code, is so broad that it includes not only
injuries to persons but also damage to property.
The Court cited as basis a page of its decision in

Barredo v. Garcia.79 But there is nothing in the page
cited that supports that statement. Furthermore,
Barredo was decided prior to the enactment of Article
2176 so it is impossible for it to have ruled on its
scope. 80
7Cited in the case as "Barredo v. Garcia, 73 Phil 607, at 620."

80 It may be argued that what the court meant was that the concept of
culpa aquiliana is so broad that it covers damage to property. If that
were the case, then the Court should have referred to culpa aquiliana
and not Article 2176.
THECONCETJALFRAMEWORK I 41
Nevertheless, the Court continued to rule that:

It makes no distinction between "damage to persons" on
the one hand and "damage to property" on the other.
Indeed, the word "damage" is used in two concepts: the
"harm" done and 'reparation" for the harm done. And
with respect to '"arm"it is plain that it includes both
injuries to person and property since '"mrm"is not
limited-to personal but also to property injuries.
As further justification, it pointed out that "examples

of quasi-delict in the law itself include damage to
property." It said:
An instance is Article 2191(2) of the Civil Code which
holds proprietors responsible for damages caused by
excessive smoke which may be harmful "to persons or
property."
The problem, however, is whether this is a quasi-

delict. On the one hand, it may be considered a quasi-
delict because it is included in the chapter on quasi-
delicts. Yet on the other hand, it may not be con-
sidered a quasi-delict because fault or negligence is
not a requirement under the said rule. Comparing
Article 2191(2) with the language employed in Article
2191(1), the former appears to be a strict liability rule.
6. Elements
Taking only Article 2176 into account, the elements of

a quasi-delict would be:
" act or omission;

" damage to another;
" fault or negligence; and
42 I ANALYSIS OF PHIUPPINE LAW AND JURSPRUDENCE ON TORTS AND QUASI-DEUCTS
* no pre-existing contractual relation.
But jurisprudence provides for a different set of

elements. Generally, cases would indicate three
elements: 81
" damage 82 to the plaintiff;

* negligence, by act or omission, of the defen-
dant, or by some other person for whose act the
defendant must respond; and
" connection of cause and effect between the
fault or negligence of the defendant and the
damage incurred by the plaintiff.
To be more precise, instead of damage, the element
should be injury because there can be damage without
injury (damnum absque injuria) from which no da-
mages can be awarded.
C. THE RELATIONSHIP BETWEEN TORT AND

QUASI-DEiCT
1. Distinct Concepts
After discussing the concepts under the first two

sections of this chapter, it should be clear that tort
under Philippine law and quasi-delict as defined in the
Civil Code are not two terms referring to the same
concept. However, there are cases where they are
81 PNR v. Brunty, G.R. No. 169891, 2 November 2006; Andamo v. LAC,

G.R. No. 74761, 6 November 1990.
8 Sometimes this is erroneously rendered as "damages". See BPI v.
Lifetime G.R. No. 176434,25 June 2008; Andamo v. AC, G.R. No. 74761,
6 November 1990.
THE CONCEPrUAL FRAMEWORK I 43
treated as if they refer to the same concept. Because of

this inconsistency, there appears to be no existing
conceptual framework which can then serve as basis
for analysis.
Thus, for purposes of this volume and for purposes of

analysis, torts under Philippine law are those causes of
action entitling a person to remedies, mainly in the
form of damages, for the injury caused to him. There
are many types of torts and various provisions of the
Civil Code and special laws govern each of them.
Thus, what is considered as torts under Philippine law
is similar but is not necessarily identical with common
law torts.
In addition, for the same purposes, a quasi-delict is the

concept defined under Article 2176 of the Civil Code.
It is a cause of action whereby one who is injured by
an act or omission of another, there being fault or
negligence, is entitled to an award of damages, there
being no pre-existing contractual relationship between
the parties.
Thus, while torts is a classification of several causes of

action, quasi-delict is a single cause of action. While
torts may include both negligent acts and acts with
intent to harm, quasi-delicts cover only negligent acts
with no intent to harm.
2. Framework
But being distinct does not mean that the concepts do

not overlap. It is possible that the same act or
omission may be considered either as a tort or as a
44 I ANALYSIS OF PHIUPPINE LAW AND JUPJSPRUDENCE ON ToRTS AND QUASI-DEUCTS
quasi-delict. Earlier in this chapter, it was discussed

that based on one framework, a quasi-delict is a subset
of tort. Thus, one way of looking at it is that a quasi-
delict is a tort committed via negligence or a quasi-
delict is a "negligence tort." Thus, the relationship
may be represented by two circles, with quasi-delict
as a smaller circle completely within the larger circle
of tort.
As mentioned earlier, Garcianotes that Article 1902 of

the old Civil Code, which is nearly identical to the
first sentence of Article 2176, describes what a tort is.
If this is correct, then this is an argument supporting
the view that a quasi-delict is a kind of tort.
In addition, there are cases which state that Article

2176 supports a cause of action on tort. In BPI v.
Lifetime, 83 the Court stated the cause of action was
based on tort and cited Article 2176 as legal basis. The
Court said the same thing in Gregorio v. CA8 4 when it
referred to "every tort case filed under Article 2176."
These statements could be taken to mean that Article
2176 defines one of the causes of action that can be
considered a tort but not that tort is limited to what is
described in Article 2176.
In Coca-cola Bottlers v. CA,85 the Court said that:

Quasi-delict, as defined in Article 2176 of the Civil Code,
(which is known in Spanish legal treatises as culpa
aquiliana, culpa extra-contractual or cuasi-delitos) is
83 BPI v. Lifetime, G.R. No. 176434, 25 June 2008.

84 Gregoriov. CA, G.R. No. 179799, 11 September 2009.
85
Coca-cola Bottlers v. CA, G.R. No. 110295,18 October 1993.
THE CONCEPTUAL FRmEwoRK 1 45
homologous but not identical to tort under the common

law, which includes not only negligence, but also
intentional criminal acts, such as assault and battery,
false imprisonment, and deceit.8 6
Thus, based on this case, quasi-delict is homologous87

but not identical to tort. Being homologous means that
a quasi-delict is like a tort. This could be taken to
mean that tort and quasi-delict are two distinct albeit
similar concepts. But it must be noted that what the
Court was comparing was quasi-delict and common
law tort and not tort as it is understood in Philippine
law.
As mentioned previously, tort would be considered as

a classification of actions, which generally gives rise to
an action for damages as a result of injury caused to
the plaintiff. These actions would include:
" quasi-delict (Articles 2176 and 2180);

" strict liability tort (Articles 1711, 1723, 2183,
2187,2189-2193);
" human relations torts (Articles 19, 20, 21, and
26); and
* independent civil actions (Articles 32 to 35).
86Id.
8
7 Having the same relative position, value, or structure (Merriam
Webster Dictionary, http://www.merriam-webster.com/dictionary/
homologous).
46 1 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QuAsi-DELICTS
D. QuAsI-DEiucr AND DELICT
1. Distinguishing Quasi-Delict from Delict
Article 1157 lists crimes and quasi-delicts as two

distinct sources of obligations. Thus, a quasi-delict is
different from delict or crime. Although not as clearly
stated, this was the case even under the old Civil
Code. As explained in Barredov. Garcia:88
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 indivi-
duality that is entirely apart and independent from a delict
or crime.8
What this means is that a quasi-delict can stand on its

own. Whatever happens to the criminal action does
not affect the quasi-delictual action. The success of the
quasi-delictual action does not depend on the success
of the criminal action. It is possible that these two
actions can arrive at different conclusions.
Thus, in this jurisdiction, the separate individuality of a
cuasi-delito or culpa aquiliana under the Civil Code has
been fully and clearly recognized, even with regard to a
negligent act for which the wrongdoer could have been
prosecuted and convicted in a criminal case and for
which, after such a conviction, he could have been sued
for this civil liability arising from his crime.90
8 Barredov. Garcia,G.R. No. 48006, 8 July 1942.

9Id.
9 Id.
According to Barredo v. Garcia,9' the differences

between crimes and cuasi-delitos may be summarized
as follows:
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 kind of fault or
negligence intervenes." (emphasis supplied)
A few observations may be made regarding these

distinctions.
As to the statement that cuasi-delitos are only of

private concern, it must be said that the interaction
between members of the society is a public policy
concern of the state. In particular, the quasi-delictual
actions under Article 2180 are clearly a public concern
as they impact provisions of the constitution itself.
For instance, under Article 2180, parents and guar-

dians are made responsible for the acts of minor
children in their custody. This is a public policy
concern under the constitution. 92
91Id.
92
Article II,Section 12 states:
SECTION 12. The State recognizes the sanctity of family life and
shall protect and strengthen the family as a basic autonomous
social institution. It shall equally protect the life of the mother
and the life of the unborn from conception. The natural and
48 I ANAYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DEUCTS
Thus, quasi-delictual actions are a public concern in

the sense that the relations covered by these actions
and the obligations within them are a state interest.
Perhaps, what was meant by the statement that a
quasi-delict is a private concern is that in the case of
quasi-delicts, legal injury is suffered only by indivi-
duals and not by the state (not unless the act also
constitutes a crime or a felony) whereas in the case of
crimes, legal injury is suffered both by the state and
the individual. This simply means that in the case of
quasi-delicts, only the private citizen injured has a
cause of action while in the case of crime, both private
individual and the state have a cause of action. So it is
not really a question of concern but locus standi.
On the other hand, the statement that an action based

on quasi-delict merely repairs the damage caused is
not always true. While the focus of the award of
damages in quasi-delictual litigation is to compensate
the injured, it is also true that some forms of damages
are punitive in nature. Nominal damages are awarded
in order that a right, which has been violated or
invaded, may be vindicated or recognized and not for
purposes of indemnifying the injured. 93 Exemplary
damages are imposed by way of example or correct-
primary right and duty of parents in the rearing of the youth for
civic efficiency and the development of moral character shall
receive the support of the Government
Article XV Section 1 states:
SECTON 1. The State recognizes the Filipino family as the
foundation of the nation. Accordingly, it shall strengthen its
solidarity and actively promote its total development
93 Article 2221.
THE CONCEPTUAL. FRAMEWOR 49
ion for the common good 94 to deter similar actions in

the future. Attorney's fees may also be awarded as a
punitive measure where one party shows bad faith.
Finally, the statement that quasi-delicts are broader

than crimes seems to be based on the fact that crimes
require a penal law clearly covering them while quasi-
delicts include all acts in which "any kind of fault or
negligence intervenes." But if broader means "more,"
it can be argued that there are more crimes listed in
the penal code and special laws than the possible
types of quasi-delicts. In fact, one can say that there
are only two types of quasi-delicts: the fault or
negligence caused by the person directly or the fault
or negligence of a person in relation to one the person
is responsible for. 95 The idea may be that there are an
infinite number of acts that can fall within these two
categories. But it can also be argued that there are an
infinite number of ways a person can fulfill the
elements of an offense or a felony. So it is actually
difficult to determine whether quasi-delicts are in fact
broader than crimes in terms of number.
2. Overlap between Quasi-Delict and Delict
Jurisprudence has explained that the same negligent

act causing damage may produce civil liability arising
from a crime under Article 100 of the Revised Penal
Code, or create an action for quasi-delict. 96
9 Article 2229.
95 Articles 2176 and 2180.
96 Barredo v. Garcia,G.R. No. 48006,8 July 1942; Elcano v. Hill, G.R. No. L-
24803, 26 May 1977.
50 1 ANALYSIS OF PHILIPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DEUCTS
This principle was demonstrated in Barredo v. Garcia.97

In this case, a collision occurred between a taxi driven
by Pedro Fontanilla and a carretela guided by Pedro
Dimapilis. Faustino Garcia, the passenger of the
carretela, suffered from injuries from which he died
two days later. A criminal action was filed against
Fontanilla and he was convicted. The trial court
granted the reservation to bring a separate civil action.
The appellate court affirmed the sentence. The
spouses Garcia, Faustino's parents, brought an action
in the trial court against Barredo as employer. The
trial court awarded damages. The appellate court
found Barredo liable for damages for the death of
Faustino caused by negligence of Fontanilla. The main
theory of the defense was that the liability of Barredo
was governed by the Revised Penal Code and thus,
his liability was only subsidiary. It argued that as
there had been no civil action against Fontanilla,
Barredo cannot be held responsible.
Thus, the issue before the Court was whether the pa-
rents of the deceased may bring a separate civil action
against the employer of the taxi driver, making him
primarily and directly responsible under Article 1903.
The Court stated that:

It will thus be seen that while the terms of Article 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
9 Barredov. Garcia,G.R. No. 48006,8 July 1942.

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 stu-
dy 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 responsi-
bility 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. (emphasis supplied)
The Court explained that the driver's negligence fell

within the concept of quasi-delict under Article 190298
of the Civil Code then. But Article 109399 of the Civil
Code then appears to limit quasi-delict to "wrongful
or negligent acts or omissions not punishable by law."
Thus, if the act or omission is punished by law or is a
crime, then strictly construing the rule would mean
that the act cannot be a quasi-delict. Because Article
365 of the Revised Penal Code punishes not only
reckless but even simple imprudence or negligence,
very few acts or omissions, if any, would fall within
the fault or negligence under Article 1902.
But the Court ruled that this overlapping or

concurrence in scope does not destroy the distinction
between crimes and quasi-delicts. Thus, the Court
98 ARTICLE 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.
99 ARTICLE 1093. Those arising from wrongful or negligent acts or
omissions not punishable by law shall be subject to the provisions of
Chapter second of Title sixteen of this book.
ruled that the same negligent act causing injury may

produce civil liability arising from a crime under
Article 100 of the Revised Penal Code, or create an
action for quasi-delict.
To justify this ruling, the Court first went into the

history of quasi-delicts and said:
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 contri-
buted to the genealogy of the present fault or negligence
under the Civil Code...
The Court then added that the distinctive nature of

quasi-delict is continued in the Civil Code because
Article 1089 identified it as one of the five sources of
obligations. Furthermore, Article 1093 provided that
this kind of obligation was governed by an entire
chapter exclusively devoted to the legal institution of
culpa aquiliana.
The Court thereafter quoted the statements of jurists

on the separate existence of quasi-delict and the
employer's primary and direct liability under Article
1903.
The Court found that the decisions of the Supreme

Tribunal of Spain upheld the principle that a quasi-
delict is a separate and distinct legal institution, inde-
pendent from the civil responsibility arising from
criminal liability, and that an employer is, under
Article 1903, primarily and directly responsible for the
negligent acts of his employee.
THE CONCETULFRAMEWORx 153
In the end, the Court summarized the foundation of

the doctrine that it was stating in this case.
Firstly, the Revised Penal Code in Article 365, punishes

not only reckless but also simple negligence. If we were
to hold that Articles 1902 to 1910 of the Civil Code refer
only to fault or negligence not punished by law,
according to the literal import of Article 1093 of the
Civil Code, the legal institution of culpa aquiliana
would have very little scope and application in actual
life. Death or injury to persons and damage to property
through any degree of negligence-even the slightest-
would have to be indemnified only through the principle
of civil liability arising from a crime. In such a state of
affairs, what sphere would remain for cuasi-delito or
culpa aquiliana? We are loath to impute to the lawmaker
any intention to bring about a situation so absurd and
anomalous. Nor are we, in the interpretation of the laws,
disposed to uphold the letter that killeth rather than the
spirit that giveth life. We will not use the literal meaning
of the law to smother and render almost lifeless a
principle of such ancient origin and such full-grown
development as culpa aquiliana or cuasi-delito, which is
conserved and made enduring in Articles 1902 to 1910 of
the Spanish Civil Code.
Secondly, to find the accused guilty in a criminal case,

proof of guilt beyond reasonable doubt is required,
while in a civil case, preponderance of evidence is
sufficient to make the defendant pay in damages. There
are numerous cases of criminal negligence which cannot
be shown beyond reasonable doubt, but can be proved
by a preponderance of evidence. In such cases, the
defendant can and should be made responsible in a civil
action under Articles 1902 to 1910 of the Civil Code.
Otherwise, there would be many instances of
unvindicated civil wrongs. Ubi jus ibi remedium.
54 I ANALYSIS OF PHIUPPINE LAw AND JURISPRUDENCE ON TORTS AND QUASI-DEUCTS
Thirdly, to hold that there is only one way to make

defendant's liability effective, and that is, to sue the
driver and exhaust his (the latter's) property first,
would be tantamount to compelling the plaintiff to
follow a devious and cumbersome method of obtaining
relief. True, there is such a remedy under our laws, but
there is also a more expeditious way, which is based on
the primary and direct responsibility of the defendant
under Article 1903 of the Civil Code. Our view of the law
is more likely to facilitate remedy for civil wrongs,
because the procedure indicated by the defendant is
wasteful and productive of delay, it being a matter of
common knowledge that professional drivers of taxis
and similar public conveyances usually do not have
sufficient means with which to pay damages. Why then,
should the plaintiff be required in all cases to go through
this roundabout, unnecessary, and probably useless
procedure? In construing the laws, courts have
endeavored to shorten and facilitate the pathways of
right and justice.
Fourthly, because of the broad sweep of the provisions of

both the Penal Code and the Civil Code on this subject,
which has given rise to the overlapping or concurrence
of spheres already discussed, and for lack of under-
standing of the character and efficacy of the action for
culpa aquiliana, there has grown up a common practice
to seek damages only by virtue of the civil responsibility
arising from a crime, forgetting that there is another
remedy, which is by invoking Articles 1902-1910 of the
Civil Code. Although this habitual method is allowed by
our laws, it has nevertheless rendered practically useless
and nugatory the more expeditious and effective remedy
based on culpa aquiliana or culpa extra-contractual. In
the present case, we are asked to help perpetuate this
usual course. But we believe it is high time we pointed
out to the harm done by such practice and to restore the
principle of responsibility for fault or negligence
under Articles 1902 et seq. of the Civil Code to its full
rigor. It is high time we caused the stream of quasi-delict
or culpa aquiliana to flow on its own natural channel, so

that its waters may no longer be diverted into that of a
crime under the Penal Code. This will, it is believed,
make for the better safeguarding of private rights
because it re-establishes an ancient and additional
remedy, and for the further reason that an independent
civil action, not depending on the issues, limitations and
results of a criminal prosecution, and entirely directed by
the party wronged or his counsel, is more likely to secure
adequate and efficacious redress.
The problem pointed out in Barredo v. Garciano longer

exists under the Civil Code because the problematic
phrase-'"not punishable by law"-in 1093 of the old
Civil Code no longer exists in Article 1162.
This was explained in Elcano v. Hill,100 where the

Court said:
And so, because Justice Bacobo was Chairman of the

Code Commission that drafted the original text of the
new Civil Code, it is to be noted that the said Code,
which was enacted after the Garcia doctrine, no longer
uses the term, "not punishable by law," thereby making
it clear that the concept of culpa aquiliana includes acts
which are criminal in character or in violation of the
penal law, whether voluntary or negligent. Thus, the
corresponding provisions to said Article 1093 in the new
code, which is Article 1162, simply says, "Obligations
derived from quasi-delicts shall be governed by the
provisions of Chapter 2, Title XVII of this Book, (on
quasi-delicts) and by special laws."
Before quoting the relevant portion of Barredo, the

Court said:
100 Elcanov. Hill, G.R. No. L-24803, 26 May 1977.

In that case, this Court postulated, on the basis of a

scholarly dissertation by Justice Bocobo on the nature of
culpa aquiliana in relation to culpa criminal or delito and
mere culpa or fault, with pertinent citation of decisions
of the Supreme Court of Spain, the works of recognized
civilians, and earlier jurisprudence of our own, that the
same given act can result in civil liability not only under
the Penal Code but also under the Civil Code.
In addition, the Court cited Article 2177 and stated:

According to the Code Commission: 'The foregoing
provision (Article 2177) through at first sight startling, is
not so novel or extraordinary when we consider the
exact nature of criminal and civil negligence. The former
is a violation of the criminal law, while the latter is a
'culpa aquilian' or quasi-delict, of ancient origin, having
always had its own foundation and individuality,
separate from criminal negligence. Such distinction
between criminal negligence and 'culpa extra-contrac-
tual' or 'cuasi-delito' has been sustained by decision of
the Supreme Court of Spain and maintained as clear,
sound and perfectly tenable by Maura, an outstanding
Spanish jurist. Therefore, under the proposed Article
2177, acquittal from an accusation of criminal neg-
ligence, whether on reasonable doubt or not, shall not
be a bar to a subsequent civil action, not for civil
liability arising from criminal negligence, but for
damages due to a quasi-delict or 'culpa aquiliana'. But
said Article forestalls a double recovery." (emphasis
supplied)
Thus, Article 2177 further supports the view that the

same act, which was the basis of a criminal action, can
be the basis for a civil action for damages.
THE CONCEPTUAL FRAMEWoRK I 57
In L.G. Foods v. Philadelfa Pagapong-Agraviador,' 0

Charles, a seven-year-old son of the spouses
Florentino and Theresa Vallejera, was hit by a Ford
Fiera van owned by the petitioners and driven at the
time by their employee, Vincent Norman Yeneza.
Charles died as a result of the accident. An Inform-
ation for Reckless Imprudence Resulting to Homicide
was filed against the driver. Unfortunately, before the
trial could be concluded, the accused driver com-
mitted suicide and on account thereof, the MTCC
dismissed the criminal case. Later, the spouses
Vallejera filed a complaint for damages against the
petitioners as employers of the deceased driver,
alleging that they failed to exercise due diligence in
the selection and supervision of their employees.
Petitioners filed a Motion to Dismiss, principally
arguing that the complaint is basically a "claim for
subsidiary liability against an employer" under
Article 103 of the Revised Penal Code and contended
that there must first be a judgment of conviction
against their driver as a condition sine qua non to hold
them liable. They further argued that since the
plaintiffs did not make a reservation to institute a
separate action for damages when the criminal case
was filed, the damage suit in question was thereby
deemed instituted with the criminal action which was
already dismissed. The trial court denied the motion
to dismiss, which was upheld by the appellate court.
101L.G. Foods v. Philadelfa Pagapong-Agraviador, G.R. No. 158995, 26

September 2006.
58 I ANALYSIS OF PHILIPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DEUCTS
The issue before the Court was whether the spouses

Vallejeras' cause of action was founded on Article 103
of the Revised Penal Code, as maintained by the
petitioners, or derived from Article 2180 of the Civil
Code.
The Court ruled that an act or omission causing

damage to another may give rise to two separate civil
liabilities on the part of the offender:
1) civil liability ex delicto;102 and

2) independent civil liabilities such as those:
(a) not arising from an act or omission com-

plained of as felony (e.g., culpa contractualor
obligations arising from law; 10 3 the inten-
tional torts;10 4 and culpa aquiliana'0 5); or
(b) where the injured party is granted a right to
file an action independent and distinct from
06
the criminal action.
It said that either of these two possible liabilities may

be enforced against the offender.
It added:
Stated otherwise, victims of negligence or their heirs
have a choice between an action to enforce the civil
liability arising from culpa criminal under Article 100 of
the Revised Penal Code, and an action for quasi-delict
102 Referring to Article 100, Revised Penal Code.

103 Referring to Article 31, Civil Code.
104 Referring to Articles 32 and 34, Civil Code.
(culpa aquiliana) under Articles 2176 to 2194 of the Civil

Code. If, as here, the action chosen is for quasi-delict, the
plaintiff may hold the employer liable for the negligent
act of its employee, subject to the employer's defense of
exercise of the diligence of a good father of the family.
On the other hand, if the action chosen is for culpa
criminal, the plaintiff can hold the employer subsidiarily
liable only upon proof of prior conviction of its
employee.
Article 1161 of the Civil Code provides that civil obli-

gation arising from criminal offenses shall be governed
by penal laws subject to the provision of Article 2177 and
of the pertinent provision of Chapter 2, Preliminary Title
on Human Relation, and of Title XVIII of this Book,
regulating damages. Plainly, Article 2177 provides for
the alternative remedies the plaintiff may choose from in
case the obligation has the possibility of arising in-
directly from the delict/crime or directly from quasi-
delict/tort. The choice is with the plaintiff who makes
known his cause of action in his initiatory pleading or
complaint, and not with the defendant who cannot ask
for the dismissal of the plaintiff's cause of action or lack
of it based on the defendant's perception that the
plaintiff should have opted to file a claim under Article
103 of the Revised Penal Code.
Under Article 2180 of the Civil Code, the liability of the

employer is direct or immediate. It is not conditioned
upon prior recourse against the negligent employee and
a prior showing of insolvency of such employee.
In this case, the Court found that the complaint

sufficiently alleged that the death of the couple's
minor son was caused by the negligent act of the
petitioners' driver. It also ruled that the petitioners
themselves were civilly liable for the negligence of
their driver for failing "to exercise the necessary
diligence required of a good father of the family in the

selection and supervision of [their] employee, the
driver, which diligence, if exercised, would have
prevented said accident."
It also held that had the spouses elected to sue the

petitioners based on Article 103 of the Revised Penal
Code, they would have alleged that the guilt of the
driver had been proven beyond reasonable doubt;
that such accused driver is insolvent; and that it was
the subsidiary liability of the petitioners as employers
to pay for the damage done by their employee (driver)
based on the principle that every person criminally
liable is also civilly liable.
The Court also noted that the petitioners, in their

Answer with Compulsory Counter-Claim, repeatedly
made mention of Article 2180 of the Civil Code and
anchored their defense on their allegation that "they
had exercised due diligence in the selection and
supervision of [their] employees." The Court viewed
this defense as an admission that indeed the
petitioners acknowledged the spouses' cause of action
as one for quasi-delict under Article 2180 of the Civil
Code.
Thus, the Court ruled that the case was a negligence

suit brought under Article 2176 of the Civil Code to
recover damages primarily from the petitioners as em-
ployers responsible for their negligent driver pursuant
to Article 2180 of the Civil Code.
E. CuLPA AQUILIANA AND CULPA CONTRACTUAL
1. Distinguishing Culpa Aquiliana from Culpa

Contractual
As explained by jurisprudence, culpa aquiliana can be

distinguished from culpa contractual in a number of
ways.
a. Source
First, as to source or vinculum juris, culpa aquiliana

"has its source in the breach or omission of those
mutual duties which civilized society imposes upon
its members, or which arise from these relations, other
than contractual, of certain members of society to
others, generally embraced in the concept of status."1°7
In Cangco v. ManilaRailroad,10 8 the Court explained:
The legal rights of each member of society constitute the

measure of the corresponding legal duties, mainly
negative in character, which the existence of those rights
imposes upon all other members of society. The breach
of these general duties whether due to willful intent or to
mere inattention, if productive of injury, gives rise to an
obligation to indemnify the injured party. 09
Thus, the "fundamental distinction" between culpa

aquiliana and breach of contract, "rests upon the fact
that in cases of non-contractual obligation it is the
wrongful or negligent act or omission itself which
107 Cangco v. Manila Railroad,G.R. No. 12191,14 October 1918.

108Id.
109Id.
62 1 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUAsI-DEUCTS
creates the inculum juris, whereas in contractual

relations the vinculum exists independently of the
breach of the voluntary duty assumed by the parties
when entering into the contractual relation.""10
In Cangco v. Manila Railroad,"' Jose Cangco, a Manila

Railroad clerk, went to work by train using a pass,
supplied by the company, which entitled him to ride
the company's trains free of charge. One day on his
way home, Cangco took the train. When Cangco
stepped off:
one or both of his feet came in contact with a sack of
watermelons that his feet slipped and he fell violently on
the platform. His body at once rolled from the platform
and was drawn under the moving car, where his right
arm was badly crushed and lacerated. It appears that
after [Cangcol alighted from the train the car moved
forward possibly six meters before it came to a full stop.
Cangco sued Manila Railroad for damages, basing his

action upon the negligence of the servants and
employees of Manila Railroad in placing the sacks of
melons upon the platform and in leaving them so
placed as to be a menace to the security of passengers
alighting from the company's trains. The lower court
ruled that although negligence was attributable to
Manila Railroad by reason of the fact that the sacks of
melons were so placed as to obstruct passengers
passing to and from the cars, nevertheless, Cangco
himself had failed to use due caution in alighting from
the coach and was therefore precluded from
110 Id.
M Id.
recovering. The Court reversed this decision and

rendered judgment in favor of Cangco.
The Court found that the employees of the railroad

company were guilty of negligence in piling the sacks
on the platform and that the sacks' presence caused
Cangco to fall as he alighted from the train. Thus it
held that the negligence of the employees constituted
an effective legal cause of the injuries sustained by
Cangco. The Court ruled that it necessarily followed
that Manila Railroad was liable for the damage caused
to Cangco, unless recovery was barred by his own
contributory negligence.
The Court said that the foundation of the legal

liability of Manila Railroad was the contract of
carriage, and that the obligation to respond for the
damage which Cangco had suffered arose from the
breach of that contract by reason of the failure of
Manila Railroad to exercise due care in its
performance.
Because of this, the liability of Manila Railroad was

direct and immediate, "differing essentially, in the
legal viewpoint from that presumptive responsibility
for the negligence of its servants, imposed by Article
1903 of the Civil Code, which can be rebutted by proof
of the exercise of due care in their selection and
supervision."
The Court cited Manresa and said:

the difference between "culpa, substantive and inde-
pendent, which of itself constitutes the source of an
obligation between persons not formerly connected by

any legal tie" and culpa considered as an "accident in the
performance of an obligation already existing..."
The Court also cited the case of Rakes v. The Atlantic" 2

where "the decision of this court was made to rest
squarely upon the proposition that Article 1903 of the
Civil Code is not applicable to acts of negligence
which constitute the breach of a contract." In Rakes,
the Court said:
The acts to which these Articles [1902 and 1903 of the
Civil Code] are applicable are understood to be those not
growing out of pre-existing duties of the parties to one
another But where 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.
b. Burden of Proof
There is also a distinction between culpa aquilianaand

culpa contractual as to the burden of proof.
As the Court explained in Cangco:n 3
When the source of the obligation upon which
plaintiff's cause of action depends is a negligent act or
omission, the burden of proof rests upon plaintiff to
prove the negligence-if he does not his action fails. But
when the facts averred show a contractual undertaking
by defendant for the benefit of plaintiff, and it is alleged
that plaintiff has failed or refused to perform the
contract, it is not necessary for plaintiff to specify in
his pleadings whether the breach of the contract is due
112 M.H. Rakes v. The Atlantic, G.R. No. L-1719, 23 January 1907.
113 Cangco v. Manila Railroad, G.R. No. 12191,14 October 1918.
THE CONCEPTUAL FRAMEwoRK I 65
to willful fault or to negligence on the part of the
defendant, or of his servants or agents. Proof of the
contract and of its nonperformance is sufficient prima
facie to warrant a recovery. 114 (emphasis supplied)
Because this case was hinged on culpa contractual, all

that the plaintiff had to present were proof of the
contract and its non-performance. The Court quoted
Manresa for the reason for this rule:
As a general rule... it is logical that in case of extra-
contractual culpa, a suing creditor should assume the
burden of proof of its existence, as the only fact upon
which his action is based; while on the contrary, in a case
of negligence which presupposes the existence of a
contractual obligation, if the creditor shows that it exists
and that it has been broken, it is not necessary for him to
prove the negligence. 115 (citation omitted)
Thus, a case based on culpa aquiliana would require

the claimant to prove negligence or fault on the part of
the defendant. 116 But in a case based on culpa
contractual, the mere proof of the existence of the
contract and the failure of its compliance would
7
justify, primafacie,a corresponding right of relief."1
The negligence or fault should be clearly established

in the case of a culpa aquilianabecause the negligence
is the basis of the action."18 In culpa contractual, the
action can be prosecuted merely by proving the
114 Id.
115 Id.
116 FGU Insurancev. Sarmiento, G.R. No. 141910, 6 August 2002.
1 7 Id. citing Calalas vs. Court of Appeals, 332 SCRA 356; Sabena Belgian
118
World Airlines vs. Court of Appeals, 255 SCRA 38.
Calalasv. CA, G.R. No. 122039, 31 May 2000.
existence of the contract and by the fact that the

obligor failed to comply with the contract.11 9
The action for breach of contract imposes on the

defendant a presumption of liability upon mere proof
of injury to the plaintiff.120 The plaintiff is relieved
from the duty to establish the fault of the defendant,
or of his employees, and the burden is placed on the
defendant to prove that it was due to an unforeseen
121
event or to force majeure.
Thus, in culpa contractual, once the plaintiff proves a

breach of contract, there is a presumption that the
defendant was at fault or negligent. That is why the
burden is on the defendant to prove that he was not at
fault or negligent.
In FGU Insurance v. Sarmiento,122 G.P. Sarmiento

trucking company ("GPS") undertook to transport
cargoes for Concepcion Industries, Inc., but its truck
collided with an unidentified truck, causing damage
to the cargoes. FGU Insurance ("FGU"), insurer of the
shipment, paid the value of the covered cargoes to
Concepcion Industries, Inc. ("CII"). Then, as subrogee
of CII, FGU sued GPS and its driver for reimburse-
ment due to breach of contract of carriage. Instead of
filing an answer, GPS filed a demurrer to evidence,
claiming that it cannot be held liable as a common
carrier because it was only a private carrier, being the
119 Id.
Foresv. Miranda,G.R. No. L-12163, 4 March 1959.
12lId.
W FGU Insurancev. Sarmiento, G.R. No. 141910, 6 August 2002.
exclusive hauler only of CII. The lower court granted

the motion, ruling that FGU failed to prove that GPS
was a common carrier. The appellate court affirmed
the trial court's order.
The Court ruled that although GPS was not a common

carrier, it was still liable. The Court explained:
In culpa contractual ... the mere proof of the existence of

the contract and the failure of its compliance justify,
prima facie, a corresponding right of relief. The law,
recognizing the obligatory force of contracts, will not
permit a party to be set free from liability for any kind of
misperformance of the contractual undertaking or a
contravention of the tenor thereof. A breach upon the
contract confers upon the injured party a valid cause for
recovering that which may have been lost or suffered.
The remedy serves to preserve the interests of the
promisee that may include his "expectation interest,"
which is his interest in having the benefit of his bargain
by being put in as good a position as he would have
been in had the contract been performed, or his "reliance
interest," which is his interest in being reimbursed for
loss caused by reliance on the contract by being put in as
good a position as he would have been in had the
contract not been made; or his "restitution interest,"
which is his interest in having restored to him any
benefit that he has conferred on the other party. Indeed,
agreements can accomplish little, either for their makers
or for society, unless they are made the basis for action.
(citations omitted, emphasis supplied)
The Court also said:
The effect of every infraction is to create a new duty, that

is, to make recompense to the one who has been injured
by the failure of another to observe his contractual
obligation unless he can show extenuating circums-
tances, like proof of his exercise of due diligence

(normally that of the diligence of a good father of a
family or, exceptionally by stipulation or by law such
as in the case of common carriers, that of extraordinary
diligence) or of the attendance of fortuitous event, to
excuse him from his ensuing liability. (citations
omitted, emphasis supplied)
Thus, in a breach of contract, the defense of due

diligence is possible. 123 In the case of a common
carrier, the diligence required is extraordinary
diligence.
In this case, the Court found that GPS recognized the

existence of a contract of carriage and admitted that
the cargoes it had assumed to deliver have been lost
or damaged while in its custody. In such a situation, a
default on, or failure of compliance with, the obli-
gation gave rise to a presumption of lack of care and
corresponding liability on the part of the contractual
obligor, the burden being on him to establish other-
wise. The Court ruled that GPS had failed to do so.
As regards the driver, the Court ruled that without

concrete proof of his negligence or fault, he may not
himself be ordered to pay FGU. The driver, not being
a party to the contract of carriage, may not be held
liable under the agreement. The Court reiterated the
rule that a contract can only bind the parties who have
entered into it or their successors who have assumed
their personality or their juridical position. Citing the
12This should not be confused, however, with the due diligence of an
employer under Article 2180. The diligence referred to here is the due
diligence of the contractual party itself in complying with the
contract
THE CONcEPTuAL FRAMEWORK I 69
axiom res inter alios acta aliis neque nocet prodest, the
Court said that such contract can neither favor nor
prejudice a third person. As a result, FGU's civil
action against the driver can only be based on culpa
aquiliana, which, unlike culpa contractual, would re-
quire the claimant for damages to prove negligence or
fault on the part of the defendant.
c. Applicability of Doctrine of Proximate Cause
A third distinction between culpa aquiliana and culpa

contractual is the applicability of the doctrine of
proximate cause.
In Calalas v. CA, 124 Eliza Sunga rode a passenger

jeepney owned and operated by Calalas. As the
jeepney was filled to capacity, Sunga was given by the
conductor an "extension seat," a wooden stool at the
back of the door at the rear end of the vehicle. When
the jeepney stopped to let a passenger off, Sunga gave
way to the outgoing passenger. Just as she was doing
so, a truck driven by Iglecerio Verena and owned by
Francisco Salva bumped the left rear portion of the
jeepney. As a result, Sunga was injured. Sunga filed a
complaint for damages against Calalas, alleging a
violation of the contract of carriage. Calalas, on the
other hand, filed a third-party complaint against
Salva. The lower court rendered judgment against
Salva and absolved Calalas of liability, holding that it
was the driver of the truck who was responsible for
the accident. It took cognizance of another case, filed
by Calalas against Salva and Verena for quasi-delict,
DA Calalasv. CA, G.R. No. 122039, 31 May 2000.

70 1 ANYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QuAsi-DEUCTS
in which the same court held Salva and his driver

Verena jointly liable to Calalas for the damage to his
jeepney. On appeal, the appellate court reversed the
ruling of the lower court on the ground that Sunga's
cause of action was based on a contract of carriage,
not quasi-delict, and that the common carrier failed to
exercise the diligence required under the Civil Code.
The appellate court dismissed the third-party
complaint against Salva and adjudged Calalas liable
for damages to Sunga.
Calalas contended before the Court that the ruling in

the civil case against Salva and Verena, that the
negligence of Verena was the proximate cause of the
accident negated his liability and that to rule
otherwise would be to make the common carrier an
insurer of the safety of its passengers.
The Court ruled against Calalas. It said that the

argument that Sunga was bound by the ruling in the
civil case which found the driver and the owner of the
truck liable for quasi-delict ignored the fact that she
was never a party to that case and, therefore, the
principle of res judicata did not apply. It said that the
issue in this case was whether Calalas was liable on
his contract of carriage.
The Court distinguished quasi-delict from breach of

contract:
The first, quasi-delict, also known as culpa aquiliana or
culpa extra contractual, has as its source the negligence
of the tortfeasor. The second, breach of contract or culpa
contractual, is premised upon the negligence in the per-

formance of a contractual obligation.
Consequently, in quasi-delict, the negligence or fault

should be clearly established because it is the basis of the
action, whereas in breach of contract, the action can be
prosecuted merely by proving the existence of the
contract and the fact that the obligor, in this case the
common carrier, failed to transport his passenger safely
to his destination.
In the case of common carriers, the Court explained

that:
In case of death or injuries to passengers, Art. 1756 of the

Civil Code provides that common carriers are presumed
to have been at fault or to have acted negligently unless
they prove that they observed extraordinary diligence as
defined in Arts. 1733 and 1755 of the Code. This pro-
vision necessarily shifts to the common carrier the
burden of proof.
As to the proximate cause of the accident:
It is immaterial that the proximate cause of the collision

between the jeepney and the truck was the negligence of
the truck driver. The doctrine of proximate cause is
applicable only in actions for quasi-delict, not in
actions involving breach of contract. The doctrine is a
device for imputing liability to a person where there is
no relation between him and another party. In such a
case, the obligation is created by law itself. But, where
there is a pre-existing contractual relation between the
parties, it is the parties themselves who create the
obligation, and the function of the law is merely to
regulate the relation thus created. Insofar as contracts of
carriage are concerned, some aspects regulated by the
Civil Code are those respecting the diligence required of
common carriers with regard to the safety of passengers
as well as the presumption of negligence in cases of
death or injury to passengers. (emphasis supplied)
d. Defense of Employer for Negligence of

Employee
A fourth distinction is the defense available to an

employer for the negligence of his employee.
In Cangco,125 the injured party wanted to hold the

employer of the negligent employee liable. If this were
a case of culpa aquiliana, then the employer can be
made liable on the basis of his own negligence. Thus,
the defense of due diligence in the selection and
supervision of his employees would have been
available to him. But this was a case of culpa
contractual.
As proof of the employer's negligence 26 is not

required in culpa contractual, the defendant employer
cannot raise the defense that the breach was caused by
the negligence of his employees. The Court said:
As it is not necessary for the plaintiff in an action for the

breach of a contract to show that the breach was due to
the negligent conduct of defendant or of his servants,
even though such be in fact the actual cause of the
breach, it is obvious that proof on the part of defendant
that the negligence or omission of his servants or agents
caused the breach of the contract would not constitute a
defense to the action. If the negligence of servants or
agents could be invoked as a means of discharging the
liability arising from contract, the anomalous result
1z Cangco v. Manila Railroad,G.R. No. 12191,14 October 1918.

Im That is, his negligence as employer of a negligent employee.
THECONCEPTUAL FRAMEWORK 173
would be that persons acting through the medium of

agents or servants in the performance of their contracts,
would be in a better position than those acting in
person)2
It is important to point out, however, that the said

defense' 28 is also not available in a suit against the
employer via culpa aquiliana, the only viable defense
being due diligence in the selection and supervision of
his employees. Pointing to his employees as the
culprits would not absolve the employer under culpa
aquilianaas the presumption of negligence on the part
of the employer would be established and remain.
Thus, if the defendant is a common carrier and sued

on the basis of a culpa contractual, it cannot, unlike in
suits based on culpa aquiliana, escape liability by
proving that it has exercised due diligence in the
selection and supervision of its employees. 129
2. Is there an intersection?
An interesting issue is whether there can be a quasi-

delict when there is a contract between the parties.
In Cangco, the Court said:
The field of non-contractual obligation is much more

broader than that of contractual obligation, comprising,
as it does, the whole extent of juridical human relations.
These two fields, figuratively speaking, concentric; that
is to say, the mere fact that a person is bound to another
I2 Cangco v. Manila Railroad,G.R. No. 12191,14 October 1918.

128That the injury was caused by the negligence of the employee.
N Fores v. Miranda,G.R. No. L-12163, 4 March 1959.
74 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUAsi-DELICTS
by contract does not relieve him from extra-contractual

liability to such person. When such a contractual
relation exists the obligor may break the contract under
such conditions that the same act which constitutes a
breach of the contract would have constituted the source
of an extra-contractual obligation had no contract existed
between the parties.1 3" (emphasis supplied)
Admittedly, "non-contractual obligations" include

both delict and quasi-delict. But the statements made
by the Court here show that as early as this case, the
Court had accepted the possibility that a delict or
quasi-delict may exist even if there was a contract.
Thus, in the old Code, there seems to be no issue as to

whether a culpa aquiliana could exist along with a
contract. Thus, an act may be both a culpa aquiliana
and a culpa contractualat the same time.
But the issue is not as clear under the current Civil
Code.
Article 2176 provides:

negligence, if there is no pre-existing contractual rela-
tion between the parties, is called a quasi-delict and is
governed by the provisions of this Chapter. (emphasis
supplied)
Based on this Article, the fault or negligence accom-

panying the act or omission of a person that caused

THE CONCEPTUAL FRAMEWORK 175
damage to another is called a quasi-delict if there is no

pre-existing contractual relation between the parties.
The question is: What happens if there is a pre-

existing contractual relationship?
Based on the text alone, there are two options:
" there is no quasi-delict and therefore no cause

of action for damages based on quasi-delict; or
" the cause of action exists but it cannot be called
a quasi-delict.
What the issue boils down to is the effect of the

second sentence on the first. Does it provide an
element to the concept of quasi-delict or is it a simply
a rule on nomenclature or some other rule?
Unfortunately, jurisprudence does not offer a clear

answer to the question. On the one hand, there are
cases which provide that there can be no quasi-delict
when there is a pre-existing contract between the
parties.
In Fores v. Miranda'31 the Court said that:

the definition of quasi-delict in Art. 2176 of the Code
expressly excludes the cases where there is a "pre-
existing contractual relation between the parties."'132
(emphasis supplied)
131 Foresv. Miranda,G.R. No. L-12163, 4 March 1959.

132 Id.
In PSBA v. CA,133 the Court ruled that:

Because the circumstances of the present case evince a
contractual relation ... the rules on quasi-delict do not
really govern. A perusal of Article 2176 shows that obli-
gations arising from quasi-delicts or tort, also known as
extra-contractual obligations, arise only between parties
not otherwise bound by contract, whether express or
implied.134 (emphasis supplied)
In Consolidated Bank v. CA, 135 the Court said that

The law on quasi-delict or culpa aquiliana is generally
applicable when there is no pre-existing contractual
relationship between the parties. 136
It must be noted that the language employed by the

Court in Consolidated Bank is not as strict as in the
previous cases as it admits of possible exceptions to
the general rule.
In Fores v. Miranda,137 the Court explained that:
the difference in conditions, defenses and proof, as well

as the codal concept of quasi-delict as essentially extra
contractual negligence, compel us to differentiate bet-
ween action ex contractu, and actions quasi ex delicto, and
prevent us from viewing the action for breach of contract
as simultaneously embodying an action on tort.13 8
133 PSBA v. CA, G.R. No. 84698,4 February 1992.

IN Id.
1W ConsolidatedBank v. CA, G.R. No. 138569,11 September 2003.
1m Id.
137 Fores v. Miranda,G.R. No. L-12163, 4 March 1959.
Lm Id.
Note that in this case, although the term tort was

used, it is actually saying that an action for quasi-
delict cannot simultaneously embody an action for
breach of contract.
But in Air Francev. Carrascoso,139 the Court said that:

the act that breaks the contract may be also a tort.14°
This case is often cited as basis for applying the rules

on quasi-delict even if a contract exists between the
parties. Note, however, that the term used is "tort"
and not "quasi-delict." It should, therefore, not be
used as basis for saying that an action may be a breach
of contract and quasi-delict at the same time, not
unless the term "tort" was meant to refer to a quasi-
delict. As will be discussed further, it does not appear
to be the case.
There are cases, however, that explicitly rule that an

action for culpa aquiliana or quasi-delict can be made
despite the existence of a contract between the parties.
In Syquia v. CA, 141 the Court said that:

a pre-existing contractual relation between the parties
does not preclude the existence of a culpa aquiliana.1 42
(emphasis supplied)
139 Air Francev. Carrascoso,G.R. No. L-21438, 28 September 1966.

140 Id., citing Austro-American S.S. Co. vs. Thomas, 248 F.231, 233.
141 Syquia v. CA, G.R. No. 98695, 27 January 1993.
142 Id.
In FarEast v. CA, 143 the Court said that:

a quasi-delict can be the cause for breaching a contract
that might thereby permit the application of applicable
principles on tort even where there is a pre-existing con-
tract between the plaintiff and the defendant.' 4 ' (citation
In LRT v. Navidad,145 the Court said that:

A contractual obligation can be breached by tort and
when the same act or omission causes the injury, one
resulting in culpa contractual and the other in culpa
aquiliana, Article 2194 of the Civil Code can well
apply. 146 (citation omitted, emphasis supplied)
These statements from the Court taken in isolation

may seem to contradict each other and the Civil Code
itself. It therefore becomes necessary to evaluate these
statements in the light of the cases in which they are
found to determine if there is any possibility for
reconciliation.
In Fores v. Miranda,147 Ireneo Miranda was one of the

passengers on a jeepney driven by Eugenio Luga and
owned by Paz Fores. While the vehicle was des-
cending the Sta. Mesa bridge at an excessive rate of
speed, the driver lost control thereof, causing it to
swerve and to hit the bridge wall. Five of the
143 Far East v. CA, G.R. No. 108164,23 February 1995.

144 Id., citing Phil. Airlines vs. Court of Appeals, 106 SCRA 143; Singson vs.
Bank of Phil. Islands, 23 SCRA 1117; and Air France vs. Carrascoso,18
SCRA 155.
145LRT v. Nayidad, G.R No. 145804, 6 February 2003.
146 Id.
147 Fores v. Miranda,105 Phil 266.
passengers were injured, including Miranda. The

driver was charged with Serious Physical Injuries
through Reckless Imprudence, and upon interposing a
plea of guilty, was sentenced accordingly. Miranda
was awarded actual damages, attorney's fees and
moral damages.
The Court affirmed the ruling except with regard to

the award of moral damages. After quoting Articles
2219 and 2220, it said:
By contrasting the provisions of these two articles, it
immediately becomes apparent that:
(a) In case of breach of contract (including one of

transportation) proof of bad faith or fraud (dolus), i.e.,
wanton or deliberately injurious conduct, is essential
to justify an award of moral damages; and
(b) That a breach of contract cannot be considered
included in the description term "analogous cases"
used in Art. 2219; not only because Art 2220
specifically provides for the damages that are caused
by contractual breach, but because the definition of
quasi-delict in Art 2176 of the Code expressly excludes
the cases where there is a "preexisting contractual
relation between the parties."
It must be noted that the statement "the definition of

quasi-delict in Art. 2176 of the Code expressly excludes
the cases where there is a 'preexisting contractual
relation between the parties"' merely formed part of
the explanation why a breach of contract cannot be an
analogous case under Article 2219. But later, the Court
explicitly stated that:
The difference in conditions, defenses and proof, as well
as the codal concept of quasi-delict as essentially extra
contractual negligence, compel us to differentiate bet-
ween action ex contractu, and actions quasi ex delicto,

and prevent us from viewing the action for breach of
contract as simultaneously embodying an action on tort.
It must be noted that the first reason stated was the

difference in the "conditions, defenses and proof'
between quasi-delict and breach of contract. But
certainly such differences do not mean that there can
be no overlap. The same differences exist in the case of
delicts and quasi-delicts yet an overlap is accepted.
But as for the "codal concept," there is a real problem.

As this case points out, Article 2176 does seem to
exclude the possibility of a quasi-delict existing if
there is a contract between the parties.
In Consolidated Bank v. CA, 148 Ismael Calapre, the mes-

senger of L.C. Diaz and Company ("L.C. Diaz"), was
instructed by Mercedes Macaraya, the cashier of L.C.
Diaz, to deposit money at Consolidated Bank. Calapre
left the savings account passbook with Teller No. 6 of
Consolidated Bank. When he returned, the teller told
him that somebody got the passbook. Calapre notified
Macaraya, who immediately prepared another depo-
sit slip for P200,000 and went to the bank with
Calapre. The deposit slip was stamped, but when
Macaraya asked for the passbook, Teller No. 6 said
she could not remember to whom she gave it but it
was someone shorter than Calapre. The next day, Luis
Diaz, the CEO of L.C. Diaz, called up and wrote to the
bank to stop any transaction using the passbook. But
L.C. Diaz learned that the day before, or on the day
149 Consoldated Bank v. CA, G.R No. 138569,11 September 2003.

THE CONCEPTUAL FRAmEWORK 1 81
the passbook was lost, a withdrawal in the amount of

P300,000 was made from the savings account. L.C.
Diaz filed a complaint for recovery of sum of money
from the bank.
The Court began by explaining the divergent rulings

of the trial and appellate courts. It explained that the
trial court pinned the liability on L.C. Diaz based on
the provisions of the rules on savings accounts, a
recognition of the contractual relationship between
the bank and L.C. Diaz while the appellate court
applied the law on quasi-delict to determine who
between the two parties was ultimately negligent. It
then said that
The law on quasi-delict or culpa aquiliana is generally

applicable when there is no pre-existing contractual
relationship between the parties.
It seems, therefore, that the Court is saying that as a

general rule, a quasi-delict cannot exist if there is a
pre-existing contractual relationship between the
parties. But it did not provide a basis why this is
merely a general rule and neither did it provide any of
the exceptions.
In Air France v. Carrascoso,149 Rafael Carrascoso was a

member of a group of 48 Filipino pilgrims that left
Manila for Lourdes. Earlier, Air France, through its
authorized agent, Philippine Air Lines, Inc., issued to
Carrascoso a first class round trip airplane ticket from
Manila to Rome. From Manila to Bangkok, Carrascoso
149 Air Francev. Carrascoso,G.R. No. L-21438, 28 September 1966.

82 I MA.YSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DEUCTS
traveled in first class, but at Bangkok, the manager of

the Air France forced Carrascoso to vacate the 'first
class' seat he was occupying because there was a
"white man" who had a better right to the seat.
Carrascoso refused and told the manager that his seat
would be taken over his dead body. A commotion
ensued. Filipino passengers went to Carrascoso and
pacified him to give his seat to the "White man."
Carrascoso reluctantly gave up his first class seat in
the plane.
The relevant issue before the Court was whether

Carrascoso was entitled to moral damages. Air France
argued that Carrascoso's action was based on breach
of contract and that to authorize an award for moral
damages, there must be an averment of fraud or bad
faith and that the decision of the appellate court failed
to make a finding of bad faith.
The Court quoted from the complaint and said:

The foregoing, in our opinion, substantially aver: First,
That there was a contract to furnish plaintiff a first class
passage covering, amongst others, the Bangkok-Teheran
leg; Second, That said contract was breached when
petitioner failed to furnish first class transportation at
Bangkok; and Third, That there was bad faith when
petitioner's employee compelled Carrascoso to leave
his first class accommodation berth "after he was
alreadyseated" and to take a seat in the tourist class, by
reason of which he suffered inconvenience, embarrass-
ments and humiliations, thereby causing him mental
anguish, serious anxiety, wounded feelings and social
humiliation, resulting in moral damages. It is true that
there is no specific mention of the term badfaith in the
complaint. But, the inference of bad faith is there; it
THE CONNCEPTUAL FRAMEWORK 1 83
may be drawn from the facts and circumstances set forth

therein. The contract was averred to establish the rela-
tion between the parties. But the stress of the action is
put on wrongful expulsion. (citation omitted, emphasis
supplied)
The Court further said:
It is really correct to say that the Court of Appeals in the

quoted portion first transcribed did not use the term
"bad faith". But can it be doubted that the recital of facts
therein points to bad faith? The manager not only pre-
vented Carrascoso from enjoying his right to a first class
seat; worse, he imposed his arbitrary will; he forcibly
ejected him from his seat, made him suffer the humi-
liation of having to go to the tourist class compartment-
just to give way to another passenger whose right there-
to has not been established. Certainly, this is bad faith.
Unless, of course, bad faith has assumed a meaning
different from what is understood in law. For, "bad
faith" contemplates a "state of mind affirmatively ope-
rating with furtive design or with some motive of self-
interest or ill will or for ulterior purposes."
And if the foregoing were not yet sufficient, there is the

express finding of badfaith in the judgment of the Court
of First Instance....
Based on these statements, it would seem that the

Court upheld the award of moral damages because of
the contractual breach committed in bad faith.
This case is often cited for its statement that:
although the relation of passenger and carrier is

"contractual both in origin and nature" nevertheless "the
act that breaks the contract may be also a tort".
84 I ANALYSIS OF PHIUPPNE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DELICTS
But can this statement serve as legal basis for arguing

that the same act can be both a quasi-delict and a tort?
Based on a closer scrutiny of the case, it seems that it

cannot be the case.
First, the issue in this case was whether the award of

moral damages based on the alleged breach of
contract was proper. The Court ruled that there was
sufficient allegation of bad faith and finding of bad
faith in the complaint and in the decision res-
pectively. Therefore, the statement had nothing to do
with the Court's ruling, which means it is not part of
the ratiodecidendi.
Second, taking the Court's statement at face value, it

would seem that the Court is saying that an act can be
both a breach of contract and a tort at the same time.
It does not say an act can be both culpa contractual and
culpa aquilianaat the same time.
The term "tort" cannot be interpreted as culpa

aquiliana because the Court cited Article 21 and not
Article 2176 as basis of the responsibility.
It said:
The responsibility of an employer for the tortuous act of
its employees need not be essayed. It is well settled in
law. For the willful malevolent act of petitioner's
manager, petitioner's his employer, must answer. Article
21 of the Civil Code says:
Art 21. Any person who willfully causes loss or injury

to another in a manner that is contrary to morals,
good customs or public policy shall compensate the

latter for the damage.
In parallel circumstances, we applied the foregoing legal

precept; and, we held that upon the provisions of Article
2219(10), Civil Code, moral damages are recoverable
Thereafter, the Court said:
A contract to transport passengers is quite different in

kind and degree from any other contractual relation.
And this, because of the relation which an air-carrier
sustains with the public. Its business is mainly with the
travelling public. It invites people to avail of the com-
forts and advantages it offers. The contract of air
carriage, therefore, generates a relation attended with a
public duty. Neglect or malfeasance of the carrier's
employees, naturally, could give ground for an action
for damages.
Passengers do not contract merely for transportation.

They have a right to be treated by the carrier's em-
ployees with kindness, respect, courtesy and due consi-
deration. They are entitled to be protected against perso-
nal misconduct, injurious language, indignities and
abuses from such employees. So it is, that any rude or
discourteous conduct on the part of employees towards
a passenger gives the latter an action for damages
against the carrier.
Thus, 'Where a steamship company had accepted a

passenger's check, it was a breach of contract and a tort,
giving a right of action for its agent in the presence of
third persons to falsely notify her that the check was
worthless and demand payment under threat of ejection,
though the language used was not insulting and she was
not ejected. And this, because, although the relation of
passenger and carrier is "contractual both in origin and
nature" nevertheless "the act that breaks the contract
may be also a tort." And in another case, 'Where a
passenger on a railroad train, when the conductor came

to collect his fare, tendered him the cash fare to a point
where the train was scheduled not to stop, and told him
that as soon as the train reached such point he would
pay the cash fare from that point to destination, there
was nothing in the conduct of the passenger which
justified the conductor in using insulting language to
him, as by calling him a lunatic," and the Supreme Court
of South Carolina there held the carrier liable for the
mental suffering of said passenger.
Petitioner's contract with Carrascoso is one attended

with public duty. The stress of Carrascoso's action as we
have said, is placed upon his wrongful expulsion. This is
a violation of public duty by the petitioner-air carrier-
a case of quasi-delict. Damages are proper. (emphasis
supplied)
Assuming that the discussion on Article 21 is not

obiter dictum, at best, Air France v. Carrascosocan only
be cited for the rule that an act that breaches a contract
can also be a violation of Article 21.
In Far East v. CA, 150 Far East Bank and Trust Co.
("FEBTC") issued a credit card to Luis Luna. Sub-
sequently, FEBTC issued a supplemental card to
Clarita Luna. When Clarita's card was lost, she
informed FEBTC. Later, Luis tendered a despedida
lunch at the Hotel Intercontinental Manila. To pay for
the lunch, Luis presented his card to the attending
waiter who promptly had it verified through a
telephone call to the bank's Credit Card Department.
Since the card was not honored, Luis was forced to
pay the bill in cash and felt embarrassed by this
150 Far East v. CA, G.R. No. 108164,23 February 1995.

THE CONCEPTUAL FRAMEWORx I 87
incident. Luis demanded the payment of damages

from FEBTC. Festejo, a vice-president of FEBTC,
expressed the bank's apologies to Luis and explained
that in cases when a card is reported as lost, FEBTC
undertakes the necessary action to avert its un-
authorized use, such as tagging the card as
"hotlisted." He noted that FEBTC failed to inform
Luna about its security policy and an overzealous
employee of the FEBTC did not consider the
possibility that it may have been Luna who was
presenting the card at that time. Festejo also sent a
letter to the Manager of the Bahia Rooftop Restaurant
to assure the latter that the Lunas were "very valued
clients" of FEBTC. The Food and Beverage Manager of
the Intercontinental Hotel wrote back to say that the
credibility of Luna had never been in question. Never-
theless, the Lunas filed a complaint for damages. The
trial court ordered FEBTC to pay the Lunas moral and
exemplary damages and attorney's fees. The appellate
court affirmed the ruling.
The Court modified the decision by deleting the

award of moral and exemplary damages to the Lunas
and instead, FEBTC was ordered to pay Luis an
amount of P5,000 by way of nominal damages.
The Court explained that in culpa contractual, moral

damages may be recovered where the defendant is
shown to have acted in bad faith or with malice in the
breach of the contract and that bad faith, in this
context, includes gross, but not simple, negligence.
88 I ANALYSIS OF PHIUPPINE LAW AND JURSPRUDENCE ON TORTS AND QUASI-DEUCTS
The Court found that the bank was remiss in

neglecting to personally inform Luis of his own card's
cancellation, but there was nothing to sufficiently
indicate any deliberate intent on the part of FEBTC to
cause harm to the Lunas. The Court also ruled that
FEBTC's negligence in failing to give personal notice
to Luis could not be considered so gross as to amount
to malice or bad faith.
As regards the Court's previous rulings that applied

Article 21 to cases of this nature, the Court said that it
was not unaware of the previous rulings of the Court
sanctioning the application of Article 21, in relation to
Article 2217 and Article 2219 of the Civil Code to a
contractual breach.15 '
The Court then said:

Article 21 of the Code, it should be observed, contem-
plates a conscious act to cause harm. Thus, even if we are
to assume that the provision could properly relate to a
breach of contract, its application can be warranted only
when the defendant's disregard of his contractual obli-
gation is so deliberate as to approximate a degree of
misconduct certainly no less worse than fraud or bad
faith. Most importantly, Article 21 is a mere declaration
of a general principle in human relations that clearly
must, in any case, give way to the specific provision of
Article 2220 of the Civil Code authorizing the grant of
moral damages in culpa contractual solely when the
breach is due to fraud or bad faith.
15 The cases cited were American Express International, Inc. vs.

Intermediate Appellate Court G.R. No. 70766, 9 November 1988 and
Bank of Philippine Islands vs. Intermediate Appellate Court G.R. No.
69162, 21 February 1992. Curiously however, none of these cases
even mention Article 21.
THE CONCEPTUAL FRAMEwoK I 89
The Court appears to be saying here that a breach of

contract can be a violation of Article 21 if the breach is
"so deliberate as to approximate a degree of
misconduct certainly no less worse than fraud or bad
faith." This would be in consonance with the obiter
dictum in Air France v. Carrascoso.15 2
The Court also said that it had not overlooked the rule
that "a quasi-delict can be the cause for breaching a
contract that might thereby permit the application of
applicable principles on tort1 even where there is a
pre-existing contract between the plaintiff and the
defendant." The Court cited Singson vs. Bank of Phil.
Islands and Air Francevs. Carrascoso54 as basis for this
alleged rule. As discussed earlier, at best the dictum in
Air Francecan only be cited for the rule that an act that
breaches a contract can also be a violation of Article
21. Similarly in Singson, the Court said that "the
existence of a contract between the parties does not
bar the commission of a tort by the one against the
order and the consequent recovery of damages
therefor." Thus, the statement refers to torts and not to
a quasi-delict under Article 2176.155
152 Air Francev. Carrascoso,G.R. No. L-21438, 28 September 1%6.

153 At this point the Court inserted a footnote and said:
In culpa aquiliana,moral damages may be recovered when the act
or omission complained of causes physical injuries or where the
defendant is guilty of intentional tort (Article 2219 [2][10], Civil
Code).
What this statement means is that the Court considers
intentional tort as falling within culpa aquiliana.
154 The Court also cited Thil. Airlines vs. Court of Appeals, 106 SCRA
143" but the said citation is for Central Bank v. CA G.R. No. L-50031-
32, 27 July 1981 and this case bears no relevance to the stated rule.
155 The Court in fact cites Air Franceafter this statement
Furthermore, in making the statement in Singson, the

Court cited the cases of Cangco vs. Manila Railroad,156
Yamada vs. Manila Railroad157 and Vasquez vs. Boja, 158
all of which were decided prior to the current Civil
Code. Therefore, these cases cannot serve as basis for
saying that a quasi-delict as defined under Article
2176 can exist simultaneously with a contract between
the parties.
But the Court also said that this doctrine 59 could not
improve the Lunas' case for it can aptly govern only
where the act or omission complained of would
constitute an actionable tort independently of the
contract. It explained:
The test (whether a quasi-delict can be deemed to under-
lie the breach of a contract) can be stated thusly: Where,
without a pre-existing contract between two parties, an
act or omission can nonetheless amount to an action-
able tort by itself, the fact that the parties are con-
tractually bound is no bar to the application of quasi-
delict provisions to the case.
Thus, under this test, the second sentence of Article

2176 is interpreted not as a rule of preclusion (i.e. the
existences of a contract precludes the existence of a
quasi-delict) but merely a rule requiring inde-
pendence. This means that a quasi-delict can exist
between contractual parties if the cause of action
exists without a contract.
156Cangco vs. Manila Railroad,G.R. No. 12191,14 October 1918.

157
Yamada vs. Manila Railroad,G.R. No. 10073,24 December 1915.
158Vasquez vs. Bora, G.R. No. 48930,23 February 1944.
15 9 That a quasi-delict can be the cause of breaching a contract
THECONCEPTUALFRAmEWORK J 91
In this case, the Lunas' damage claim was predicated

solely on their contractual relationship. Without such
agreement, the act or omission complained of cannot
by itself be held to stand as a separate cause of action
or as an independent actionable tort. There was, after
all, no obligation on the part of FEBTC to give credit
to the Lunas outside of their contract.
In PSBA v. CA, 16° Carlitos Bautista, a third year

commerce student at PSBA, was stabbed on the
second floor of PSBA. His parents filed a suit for
damages. It was established that his assailants were
not members of the school's academic community but
were elements from outside the school. They sought
to make PSBA liable for the victim's untimely demise
due to their alleged negligence, recklessness and lack
of security precautions, means and methods before,
during and after the attack on the victim. PSBA
sought to have the suit dismissed, alleging that since
they are presumably sued under Article 2180 of the
Civil Code, the complaint states no cause of action
against them, because academic institutions, such as
the PSBA, were beyond the ambit of the rule. The trial
court denied the motion to dismiss and was affirmed
by the appellate court.
The Court affirmed the ruling but for a different

reason. The Court explained:
When an academic institution accepts students for

enrollment, there is established a contract between
them, resulting in bilateral obligations which both
160 PSBA v. CA, G.R. No. 84698,4 February 1992.

parties are bound to comply with. For its part, the school
undertakes to provide the student with an education that
would presumably suffice to equip him with the
necessary tools and skills to pursue higher education or a
profession. On the other hand, the student covenants to
abide by the school's academic requirements and
observe its rules and regulations.
Institutions of learning must also meet the implicit or

"built-in" obligation of providing their students with
an atmosphere that promotes or assists in attaining its
primary undertaking of imparting knowledge. Certain-
ly, no student can absorb the intricacies of physics or
higher mathematics or explore the realm of the arts and
other sciences when bullets are flying or grenades
exploding in the air or where there looms around the
school premises a constant threat to life and limb.
Necessarily, the school must ensure that adequate steps
are taken to maintain peace and order within the
campus premises and to prevent the breakdown there-
of. (citations omitted, emphasis supplied)
Therefore, the Court found that there was a con-

tractual relationship between PSBA and Bautista. The
Court further said:
Because the circumstances of the present case evince a

contractual relation between the PSBA and Carlitos
Bautista, the rules on quasi-delict do not really govern a
perusal of Article 2176 shows that obligations arising
from quasi-delicts or tort, also known as extra-con-
tractual obligations, arise only between parties not
otherwise bound by contract, whether express or
implied.
In this paragraph, the Court expressed the view that

because there was a contract, "the rules on quasi-delict
do not really govern." Despite the albeit ambiguous
effect of the use of the word "really," it seems that at

this point, the Court was of the view that a quasi-
delict can only arise between parties not otherwise
bound by contract.
But the Court subsequently said:

However, this impression has not prevented this Court
from determining the existence of a tort even when
there obtains a contract. In Air France vs. Carroscoso,the
private respondent was awarded damages for his
unwarranted expulsion from a first-class seat aboard the
petitioner airline. It is noted, however, that the Court
referred to the petitioner-airline's liability as one arising
from tort, not one arising from a contract of carriage. In
effect, Air France is authority for the view that liability
from tort may exist even if there is a contract, for the act
that breaks the contract may be also a tort. (citations
The use of the word "impression" seems to downplay

the binding effect of the rule earlier stated by the
Court that a quasi-delict can only arise between
parties not otherwise bound by contract. Furthermore,
the Court admitted that despite Article 2176, the
Court has accepted the existence of a tort even when
there is a contract. The Court referred to Air France v.
Carrascosobut the Court also pointed out that in that
case, the liability was based on tort and not con-
tract. 161 Therefore, it interpreted the ruling in that case
161 As discussed earlier, the Court did in fact rule on the issue of moral
damages on the basis that it was a breach of contract. Therefore, the
discussion on tort was mere obiter. But it seems that the Court here
read the case of Air France differently.
as being authority for the rule that tort may exist even
if there is a contract.
The Court pointed out that "[tihis view was not all
that revolutionary" because "as early as 1918, this
Court was already of a similar mind." It cited Cangco
vs. Manila Railroad,where the Court said:
The field of non-contractual obligation is much more

broader than that of contractual obligation, comprising,
as it does, the whole extent of juridical human relations.
These two fields, figuratively speaking, concentric; that
is to say, the mere fact that a person is bound to another
by contract does not relieve him from extra-contractual
liability to such person. When such a contractual relation
exists the obligor may break the contract under such
conditions that the same act which constitutes a breach of the
contract would have constituted the source of an extra-
contractual obligation had no contract existed between the
parties.162 (emphasis by the Court)
Basically, the Court here is saying that the same act

may constitute a breach of contract and a source of
"extra-contractual obligations." It must be noted that
"extra-contractual obligations" is not a synonym of
quasi-delict. The latter is only one form of the former.
It must also be remembered that this case was decided
prior to the enactment of Article 2176.
In PSBA, the Court ruled that:
In the circumstances obtaining in the case at bar,

however, there is, as yet, no finding that the contract
between the school and Bautista had been breached thru
162
Cangco vs. ManilaRailroad,G.R. No. 12191,14 OctDber 1918.
THE CONCEP UAL FRAMEWORK I 95
the former's negligence in providing proper security
measures. This would be for the trial court to determine.
And, even if there be a finding of negligence, the same
could give rise generally to a breach of contractual
obligation only. Using the test of Cangco, supra, the
negligence of the school would not be relevant absent a
contract. In fact, that negligence becomes material only
because of the contractual relation between PSBA and
Bautista. In other words, a contractual relation is a
condition sine qua non to the school's liability. The
negligence of the school cannot exist independently on
the contract, unless the negligence occurs under the
circumstances set out in Article 21 of the Civil Code.
(emphasis supplied)
In other words, the Court here is saying that even if

there is a finding of negligence, it could only give rise
to a culpa contractual and not a culpa aquilianabecause
the liability of the school cannot exist apart from
contract. Because the liability of the school is depen-
dent on a contract and cannot exist without it, a quasi-
delict cannot exist. However, according to the Court, a
cause of action under Article 21 is still possible. It
said:
The negligence of the school cannot exist indepen-

dently on the contract, unless the negligence occurs
under the circumstances set out in Article 21 of the Civil
Code. (emphasis supplied)
The problem, however, is that the text of Article 21

requires that the act complained of be committed
"wilfully" and not merely negligently. Therefore,
Article 21 could not be the basis of liability for PSBA if
the allegation was that it was negligent.
Furthermore, contrary to the ruling of the Court, the

duty of PSBA to keep individuals within its premises
safe is arguably not limited to a contractual relation-
ship. While it is contractually bound to keep its
students safe, it is arguable that it owes all individuals
within its premises the duty of maintaining adequate
security. Certainly, making sure that individuals,
particularly non-members of its academic community,
do not carry dangerous weapons within the premises
is within the demands of due diligence.
In Syquia v. CA,163 Juan Syquia, the father of the

deceased Vicente Juan Syquia, instructed Manila
Memorial Park Cemetery, Inc. ("MMCPI") to inter the
remains of the deceased. Preparatory to transferring
the said remains to a newly purchased family plot, the
concrete vault encasing the coffin of the deceased was
removed from its niche underground. As the concrete
vault was being raised to the surface, the Syquias
discovered that the concrete vault had a hole approxi-
mately three inches in diameter near the bottom of
one of the walls closing out the width of the vault on
one end and that for a certain length of time (one
hour, more or less), water drained out of the hole.
Upon opening the vault, the following became
apparent: (a) the interior walls of the concrete vault
showed evidence of total flooding; (b) the coffin was
entirely damaged by water, filth and silt causing the
wooden parts -to warp and separate and to crack the
viewing glass panel located directly above the head
and torso of the deceased. The entire lining of the
163 Syquia v. CA, G.R. No. 98695,27 January 1993.

coffin, the clothing of the deceased, and the exposed

parts of the deceased's remains were damaged and
soiled by the action of the water and silt and were also
coated with filth. The Syquias filed a complaint for
damages arising from breach of contract and/or quasi-
delict. The trial court held that the contract between
the parties did not guarantee that the cement vault
would be waterproof and that there could be no
quasi-delict because the defendant was not guilty of
any fault or negligence, and because there was a pre-
existing contractual relation between the Syquias and
MMPCI. The appellate court affirmed the ruling.
The issue before the Court was whether the MMPCI

breached its contract; or, alternatively, whether
private respondent was guilty of a tort.
The Court ruled that there was no breach of contract

or culpa aquiliana.
As to the culpa aquiliana,the Court explained:
With respect to herein petitioners' averment that private

respondent has committed culpa aquiliana, the Court of
Appeals found no negligent act on the part of private
respondent to justify an award of damages against it.
Although a pre-existing contractual relation between
the parties does not preclude the existence of a culpa
aquiliana, we find no reason to disregard the res-
pondent's Court finding that there was no negligence.
xxx xxx xxx
In this case, it has been established that the Syquias and

the Manila Memorial Park Cemetery, Inc., entered into a
contract entitled "Deed of Sale and Certificate of

Perpetual Care" on August 27, 1969. That agreement
governed the relations of the parties and defined their
respective rights and obligations. Hence, had there been
actual negligence on the part of the Manila Memorial
Park Cemetery, Inc., it would be held liable not for a
quasi-delict or culpa aquiliana, but for culpa con-
tractualas provided by Article 1170 of the Civil Code.
The Court seems to be saying that a culpa aquilianacan

exist even if there is a contract. But the Court also said
that if a contract existed in this case and negligence is
proven, the negligent party will be held liable for
culpa contractual and not culpa aquiliana. This ruling
may be interpreted in consonance with the Far East
Bank test to determine whether there can be a quasi-
delict despite the existence of a contract. This test
provides that a quasi-delict can be deemed to underlie
the breach of a contract if without a pre-existing
contract between two parties, an act or omission can
nonetheless amount to an actionable tort by itself.
Thus, the existence of contract will not prevent an
action based on quasi-delict if an action based on
quasi-delict could be filed without the contract. In this
case, the duty of due diligence on the part of MMPCI
existed only because of a contract.
As to the breach of contract the Court ruled:
We do not agree. There was no stipulation in the Deed

of Sale and Certificate of Perpetual Care and in the Rules
and Regulations of the Manila Memorial Park Cemetery,
Inc. that the vault would be waterproof. Private
respondent's witness, Mr. Dexter Heuschkel, explained
that the term "sealed" meant "closed" On the other
hand, the word "seal" is defined as "... any of various

closures or fastenings ... that cannot be opened without
rupture and that serve as a check against tampering or
unauthorized opening." The meaning that has been
given by private respondent to the word conforms with
the cited dictionary definition. Moreover, it is also quite
dear that "sealed" cannot be equated with "water-
proof". Well settled is the rule that when the terms of the
contract are clear and leave no doubt as to the intention
of the contracting parties, then the literal meaning of the
stipulation shall control. Contracts should be interpreted
according to their literal meaning and should not be
interpreted beyond their obvious intendment. (citations
The Court ruled that MMPCI did not breach the tenor
of its obligation to the Syquias.
As to the hole:
It cannot be denied that the hole made possible the

entry of more water and soil than was natural had there
been no hole.
xxx xxx xxx
The circumstances surrounding the commission of the

assailed act-boring of the hole- negate the allegation
of negligence. The reason for the act was explained by
Henry Flores, Interment Foreman, who said that
xxx xxx xxx
A. A day before Juan (sic) Syquia was buried our

personnel dug a grave. After digging the next
morning a vault was taken and placed in the grave
and when the vault was placed on the grave a hole
was placed on the vault so that water could come
into the vault because it was raining heavily then
because the vault has no hole the vault will float and
100 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DELICTS
the grave would be filled with water and the digging

would caved (sic) in and the earth, the earth would
(sic) caved in and fill up the grave."
Except for the foreman's opinion that the concrete vault

may float should there be a heavy rainfall, from the
above-mentioned explanation, private respondent has
exercised the diligence of a good father of a family in
preventing the accumulation of water inside the vault
which would have resulted in the caving in of earth
around the grave filling the same with earth.
Thus, finding no evidence of negligence on the part of

private respondent, we find no reason to award damages
in favor of petitioners.
Curiously, while admitting that the hole in the vault

allowed the entry of more water and soil, the Court
still found that the act of boring the hole was not
negligence on the part of MMPCI. Based on the
testimony of the foreman, the hole was placed so that
the water would come into the vault. Yet the Court
also said that MMPCI exercised diligence to prevent
accumulation of water inside the vault.
In Light Rail Transit v. Navidad,164 Nicanor Navidad

entered the EDSA Light Rail Transit ("LRT") station
while he was drunk. While Navidad was standing on
the platform near the LRT tracks, Junelito Escartin, the
security guard assigned to the area, approached
Navidad. A misunderstanding or an altercation
between the two apparently ensued that led to a
fistfight. No evidence was adduced to indicate how
the fight started or who, between the two, delivered
1' Light Rail Transitv. Navidad, G.R. No. 145804, 6 February 2003.
THE CONCEPTUAL FRAmEWOR I 101
the first blow or how Navidad later fell on the LRT

tracks. But the Court found that at the exact moment
that Navidad fell, an LRT train, operated by Rodolfo
Roman, was coming in. Navidad was struck by the
moving train and was killed instantaneously.
Marjorie, the widow of Navidad, along with her
children, filed a complaint for damages against
Escartin, Roman, the Light Rail Transit Authority
("LRTA"), the Metro Transit Organization, Inc., and
Prudent Security Agency for the death of her
husband. LRTA and Roman filed a counterclaim
against Navidad and a cross-claim against Escartin
and Prudent. Prudent, in its answer, denied liability
and averred that it had exercised due diligence in the
selection and supervision of its security guards. The
trial court ruled in favor of the plaintiffs and against
Prudent Security and Escartin, ordering them to pay
jointly and severally the plaintiffs. Prudent appealed
to the appellate court, who exonerated Prudent from
any liability for the death of Navidad and, instead,
held the LRTA and Roman jointly and severally liable.
The Court ruled that the foundation of LRTA's

liability was the contract of carriage and its obligation
to indemnify the victim arose from the breach of that
contract by reason of its failure to exercise the high
diligence required of the common carrier. It
explained:
In the discharge of its commitment to ensure the safety

of passengers, a carrier may choose to hire its own
employees or avail itself of the services of an outsider or
an independent firm to undertake the task. In either case,
the common carrier is not relieved of its responsibilities

under the contract of carriage.
As for Prudent, the Court said that its liability "could

only be for tort under the provisions of Article 2176
and related provisions, in conjunction with Article
2180, of the Civil Code." It added:
The premise, however, for the employer's liability is

negligence or fault on the part of the employee. Once
such fault is established, the employer can then be made
liable on the basis of the presumption juris tantum that
the employer failed to exercise diligentissimipatrisfamilies
in the selection and supervision of its employees. The
liability is primary and can only be negated by showing
due diligence in the selection and supervision of the
employee, a factual matter that has not been shown.
Absent such a showing, one might ask further, how then
must the liability of the common carrier, on the one
hand, and an independent contractor, on the other hand,
be described? It would be solidary. A contractual
obligation can be breached by tort and when the same
act or omission causes the injury, one resulting in culpa
contractual and the other in culpa aquiliana, Article
2194 of the Civil Code can well apply. In fine, a liability
for tort may arise even under a contract, where tort is
that which breaches the contract. Stated differently,
when an act which constitutes a breach of contract
would have itself constituted the source of a quasi-
delictual liability had no contract existed between the
parties, the contract can be said to have been breached
by tort, thereby allowing the rules on tort to apply.
A number of observations may be made regarding

these statements of the Court. First, the statement that
"[a] contractual obligation can be breached by tort and
when the same act or omission causes the injury, one
resulting in culpa contractual and the other in culpa

aquiliana Article 2194 of the Civil Code can well
apply" is at best ambiguous. While a contract may be
breached by a tort, 165 the rest of the sentence defies
comprehension. 166 At best, it implies that the same act
or omission can constitute a culpa aquilianaand a culpa
contractual at the same time but provides no basis for
this statement.167
Second, the statement that "a liability for tort may

arise even under a contract, where tort is that which
breaches the contract" would follow from the
statement in Air France v. Carrascoso,but reference is
made to PSBA v. CA. In both cases, the tort referred to
is Article 21, which is not the cause of action relied
upon by the plaintiffs in this case.
Third, the statement "when an act which constitutes a

breach of contract would have itself constituted the
source of a quasi-delictual liability had no contract
existed between the parties, the contract can be said to
have been breached by tort, thereby allowing the rules
on tort to apply" assumes that a quasi-delict is the
same thing as tort. Thus, the rules on tort referred to
may in fact be the rules on quasi-delict. But even
assuming that what the Court had in mind was
165 Tort in this case is defined by the cases as Article 21.

166 There is no apparent connection between the possible intersection
between a culpa aquilina and a culpa contractualand the applicability
of Article 2194 on the solidary liability of persons liable for a quasi-
delict
167 The footnote at the end of this statement refers to Air France
Carrascoso. But as discussed, Air France does not support this
statement.
104 1 ANALYSIS OF PHILIPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DELICTS
"quasi-delict" when it said "tort," there was no

adequate basis for the statement. The cases cited by
the Court as basis for this statement were Cangco vs.
Manila Railroad168 and Manila Railroad vs. Compania
Transatlantica.169 Both of these cases were decided
prior to the current Civil Code and therefore cannot
be used to interpret Article 2176.
168 Cangcov. Manila Railroad,G.R. No. 12191,14 October 1918.

169 Railroad vs. CompaniaTransatlantica,G.R. No. 11318, 26 October 1918.
Citation:
Tue Apr 17 10:45:44 2018



II. Negligence
A. CONCEPT OF NEGLIGENCE
1. Defining Negligence
Article 1173 of the Civil Code provides that "[t]he

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." Thus, negligence is simply the absence of the
diligence required.
Based on this rule, to determine whether or not a

person has been negligent requires determining two
things:
* the diligence required of the actor under the

circumstances; and
" whether the actor has performed the diligence
required.
Thus, the statutory definition provides for a simple

procedure for determining negligence. Nevertheless,
jurisprudence provides for other definitions of negli-
gence.
For instance, the Court often defines negligence in the

following manner:
Negligence is the omission to do something which a
reasonable man, guided by those considerations which
106
NEGUGENCE I 107
ordinarily regulate the conduct of human affairs, would

do, or the doing of something which a prudent and
reasonable man would not do.1
This definition appears to have been derived from

2
common law sources.
The Court has also defined negligence as:

the failure to observe for the protection of the interests of
another person that degree of care, precaution, and vigi-
lance which the circumstances justly demand, whereby
3
such other person suffers injury.
The Court has explained that this definition originally

came from Judge Cooley. 4
Yet another definition is simply:

Negligence is want of care required by the circums-
5
tances.
I Bank of the PhilippineIslands v. Suarez, G.R. No. 167750, 15 March 2010;

Sicam v. Jorge, G.R. No. 159617, 8 August 2007; PNR v. Brunty, G.R.
No. 169891, 2 November 2006; Cruz v. Gangan, G.R. No. 143403, 22
January 2003; Raynera v. Hiceta, G.R. No. 120027, 21 April 1999; Jarco
Marketing v. CA,G.R. No. 129792, 21 December 1999; Philippine Bank of
Commerce v. CA, G.R. No. 97626, 14 March 1997; Leano v. Domingo,
G.R. No. 84378, 4 July 1991; Layugan v. MC, G.R. No. 73998, 14
November 1988.
2 The earliest case, Layugan v. LAC, G.R. No. 73998, 14 November 1988,
cites "Black's Law Dictionary, Fifth Edition, 930" as its source.
3 Sealoader v. Grand Cement, G.R. No. 167363, 15 December 2010; PNR v.
CA, G.R. No. 157658, 15 October 2007; JarcoMarketing v. CA, G.R. No.
129792, 21 December 1999; Layugan v. LAC, G.R No. 73998, 14
November 1988.
4 U.S. v. Barias, G.R. No. 7567,12 November 1912, citing '"Judge Cooley
in his work on Torts (3d ed., 1324)"; Layugan v. AC,G.R. No. 73998,14
November 1988, citing 'Cooley on Torts, Fourth Edition, VoL 3,265."
108 1 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASi-DELCTS
In two cases, citing Corpus juris Secundum, the Court

stated that:
A negligent act is an inadvertent act; it may be merely

carelessly done from a lack of ordinary prudence and
may be one which creates a situation involving an
unreasonable risk to another because of the expectable
action of the other, a third person, an animal, or a force
of nature. A negligent act is one from which an ordinary
prudent person in the actor's position, in the same or
similar circumstances, would foresee such an appre-
ciable risk of harm to others as to cause him not to do the
act or to do it in a more careful manner. 6 (emphasis
supplied)
Thus, apart from the clear statutory definition, the

Court has also cited common law definitions for
negligence.
2. Determining the Diligence Required
As mentioned previously, to determine whether an

actor has been negligent requires a prior deter-
mination of the diligence required under the
circumstances.
According to Article 1173, what determines the

diligence required are the following factors:
o the nature of the obligation; and
5 Cruz v. Gangan, G.R. No. 143403, 22 January 2003; Adzuara v. CA, G.R.
No. 125134, 22 January 1999; Bulilan v. COA, G.R. No. 130057, 22
December 1998; U.S. v. Barias,G.R. No. 7567,12 November 1912
6 CorinthianGardens v. Spouses Tanjangco, G.R. No. 160795, 27 June 2008;
Capiliv. Sps. Cardafia,G.R. No. 157906,2 November 2006.
NEGUCeCE I 109
* the circumstances of the persons, of the time

and of the place.
This means that certain types of obligations may

require a higher standard of diligence than others.
This also means that the circumstances of the persons

(i.e. the person who caused the injury and the person
who suffered the injury) matters. Such circumstances
would include age, expertise (if any), and physical
abilities and disabilities (if any). Thus, what may be a
negligent act for an adult may not be negligent for a
child. In the same way, an act may be negligent for an
expert but not for a non-expert.
The location and time of the incident are also factors

to be considered. For instance, lighting a match in an
open but cemented area (e.g. a parking lot) may not
constitute negligence, but it may be considered a
negligent act if done near a gasoline tank. It may also
not be negligent to drive without headlights during
the day but it may constitute negligence to drive
without headlights at night.
Article 1173 also states that "[i]f 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." Thus, the default
diligence required is that expected of a good father of
a family.
110 1 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASi-DELiCTS
In Jorge v. Sicam,7 the Court stated that:

The diligence with which the law requires the individual
at all times to govern his conduct varies with the nature
of the situation in which he is placed and the
importance of the act which he is to perform. 8 (emphasis
supplied)
This means that the nature of the act to be performed

matters. For instance, whether or not an act of a
surgeon is negligent may depend on the nature of the
medical procedure he is to perform.
In Far Eastern Shipping v. CA, 9 it was held that:

Generally, the degree of care required is graduated
according to the danger a person or property attendant
upon the activity which the actor pursues or the
instrumentality which he uses. The greater the danger
the greater the degree of care required. What is ordinary
under extraordinary of conditions is dictated by those
conditions; extraordinary risk demands extraordinary
care. Similarly, the more imminent the danger, the
higher the degree of care. 10 (emphasis supplied)
Thus, the greater the degree of danger to others, the

greater the degree of diligence required of the actor.
In PNR v. Brunty,'l Rhonda Brunty, together with

Manuel Garcia, traveled to Baguio City on board a car
driven by Rodolfo Mercelita. By 2:00 a.m., the car was
7 Sicam v. Jorge, G.R. No. 159617,8 August 2007.

8 Id., citing Cruz v. Gangan, G.R. No. 143403, 22 January 2003.
9 FarEastern Shipping v. CA, G.R. No. 130068,1 October 1998.
10 Id.
11 PNR v. Brunty, G.R. No. 169891, 2 November 2006.
NEGUGENCE I 111
already approaching the railroad crossing at Tarlac.

Mercelita, driving at approximately 70 km/hr., drove
past a vehicle, unaware of the railroad track up ahead
and that they were about to collide with a PNR train.
Upon collision, Mercelita was instantly killed while
the two other passengers suffered serious physical
injuries and were brought to the hospital. Brunty was
pronounced dead 10 minutes from arrival. Garcia,
who had suffered severe head injuries, was
transferred to other hospitals for further treatment.
Ethel Brunty, Rhonda's mother, and Garcia filed a
complaint for damages against the PNR. Both the trial
court and the appellate court ruled in favor of Brunty
and Garcia.
The Court began by defining negligence and the test

for determining whether negligence exists. It said:
Negligence is the omission to do something which a
ordinarily regulate the conduct of human affairs,
would do, or the doing of something which a prudent
and reasonable man would not do. In Corliss v. Manila
Railroad Company, this Court held that negligence is want
of the care required by the circumstances. It is a relative
or comparative, not an absolute, term and its application
depends upon the situation of the parties and the degree
of care and vigilance which the circumstances reasonably
require. In determining whether or not there is negli-
gence on the part of the parties in a given situation,
jurisprudence has laid down the following test: Did
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, the person is guilty of negligence. The law, in
effect, adopts the standard supposed to be supplied by
112 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASi-DELiCTS
the imaginary conduct of the discreet paterfamiliasof the

Roman law. (citations omitted, emphasis supplied)
The Court found no cogent reason to disturb the

factual circumstances as found by the lower courts.
Thus, PNR was found negligent because of its failure
to provide the necessary safety device to ensure the
safety of motorists in crossing the railroad track.
The Court found PNR's safety measures inadequate

due to the following:
" absence of flagbars or safety railroad bars;

* inadequacy of the installed warning signals;
and
" lack of proper lighting within the area.
The Court then summarized the due diligence

required of railroad companies.
It may broadly be stated that railroad companies owe to
the public a duty of exercising a reasonable degree of
care to avoid injury to persons and property at railroad
crossings, which duties pertain both in the operation of
trains and in the maintenance of the crossings. More-
over, every corporation constructing or operating a
railway shall make and construct at all points where
such railway crosses any public road, good, sufficient,
and safe crossings and erect at such points, at a
sufficient elevation from such road as to admit a free
passage of vehicles of every kind, a sign with large and
distinct letters placed thereon, to give notice of the
proximity of the railway, and warn persons of the
necessity of looking out for trains. (citations omitted,
emphasis supplied)
NEGUGENCE 1 113
Thus, in this case, the Court laid out the diligence

12
required of railroad companies to the general public
(i.e. "reasonable degree of care") and the specific acts
which this diligence requires.
In PNR v. CA,13 one early afternoon, Jose Amores was

about to traverse the railroad tracks while driving his
car. Before crossing the railroad track, he stopped for
a while then proceeded accordingly. Unfortunately,
just as Amores was at the intersection, a PNR train
turned up and collided with the car. At the time of the
mishap, there was neither a signal nor a crossing bar
at the intersection to warn motorists of an
approaching train. Aside from the railroad track, the
only visible warning sign at that time was the
defective standard signboard 'STOP, LOOK and
LISTEN" wherein the word "Listen" was missing
while that of "Look" was bent. No whistle blow from
the train was likewise heard before it finally hit the car
of Amores. After impact, the car was dragged about
10 meters beyond the center of the crossing. Amores
died as a consequence of the collision. The heirs of
Amores filed a complaint for damages against PNR
and Virgilio Borja, the locomotive driver. The trial
court ruled in favor of PNR but the appellate court
reversed it.
The Court ruled that it found no reason to reverse the

appellate court. It began by defining what negligence
12 This is different from the extraordinary dihgence standard applicable

to its contract of carriage with passengers.
13 PNR v. CA, G.R No. 157658,15 October 2007.
114 1 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DELICTS
is but said that there was no hard and fast rule to

determine whether it exists. It said:
Negligence has been defined 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." Using the aforementioned philo-
sophy, it may be reliably concluded that there is no hard
and fast rule whereby such degree of care and vigilance
is calibrated; it is dependent upon the circumstances in
which a person finds himself. All that the law requires is
that it is perpetually compelling upon a person to use
that care and diligence expected of sensible men under
comparable circumstances. (citations omitted, emphasis
supplied)
The Court found that the train was running at a fast

speed because notwithstanding the application of the
ordinary and emergency brakes, the train still drag-
ged the car some distance away from the point of
impact. In addition, the precautions taken by PNR to
forewarn the public of the impending danger were
inadequate. It added:
Aside from not having any crossing bar, no flagman or
guard to man the intersection at all times was posted on
the day of the incident. A reliable signaling device in
good condition, not just a dilapidated "Stop, Look and
Listen" signage because of many years of neglect, is
needed to give notice to the public. It is the respon-
sibility of the railroad company to use reasonable care
to keep the signal devices in working order. Failure to
do so would be an indication of negligence. (emphasis
supplied)
NEGUGENCE I 115
The Court cited the case of PNR v. Brunty in relation

to the duty owed by railroad companies to the public.
It stated that:
The failure of the PNR to put a cross bar, or signal light,
flagman or switchman, or semaphore is evidence of
negligence and disregard of the safety of the public, even
if there is no law or ordinance requiring it, because
public safety demands that said device or equipment be
installed.
However, PNR argued that a train has a right-of-way

in a railroad crossing under the existing laws based on
Section 42(d), Article III of Republic Act No. 4136,
otherwise known as the Land Transportation and
Traffic Code, which states that:
The driver of a vehicle upon a highway shall bring to a
full stop such vehicle before traversing any "through
highway" or railroad crossing: Provided, That when it is
apparent that no hazard exists, the vehicle may be
slowed down to five miles per hour instead of bringing it
to a full stop.
In response, the Court explained:

It is true that one driving an automobile must use his
faculties of seeing and hearing when nearing a railroad
crossing. However, the obligation to bring to a full stop
vehicles moving in public highways before traversing
any "through street" only accrues from the time, the
said "through street" or crossing is so designated and
sign-posted. From the records of the case, it can be
inferred that Amores exercised all the necessary
precautions required of him as to avoid injury to himself
and to others. The witnesses' testimonies showed that
Amores slackened his speed, made a full stop, and then
proceeded to cross the tracks when he saw that there was
116 I ANALYSIS OF PHlUPPINE LAW AND JURSPRUDENCE ON TORTS AND QUASI-DELICTS
no impending danger to his life. Under these circums-

tances, we are convinced that Amores did everything,
with absolute care and caution, to avoid the collision.
It is settled that every person or motorist crossing a

railroad track should use ordinary prudence and alert-
ness to determine the proximity of a train before
attempting to cross. We are persuaded that the circum-
stances were beyond the control of Amores for no person
would sacrifice his precious life if he had the slightest
opportunity to evade the catastrophe. Besides, the
authority in this jurisdiction is that the failure of a
railroad company to install a semaphore or at the very
least, to post a flagman or watchman to warn the public
of the passing train amounts to negligence. (citation
Thus, it may be said that a higher diligence (i.e. a "full

stop") is required of motorists when they cross
railroad tracks properly "sign posted." Because PNR
did not exercise sufficient diligence in properly "sign
posting" its tracks, the full stop requirement never
arose. But the Court also found that Amores did make
a full stop in this case.
B. DEGREES OF NEGLIGENCE
The different degrees of negligence are generally

identified as slight, ordinaryand gross.
Slight negligence has been defined as "failure to use

great care"'14 or "absence of that degree of care and
vigilance which persons of extraordinary prudence
5
and foresight are accustomed to use.'
14 PROs-ER AND KEETON ON TORTS (FIFTH ED.) 210 (1994).

'5 Id. at 211.
NEGUGENCE I 117
Ordinary negligence has been defined as "failure to use

6
ordinary care.'
Gross negligence has been defined as "failure to even

use slight care,' 7 "very great negligence, or want of
even slight or scant care"' 8 or "failure to exercise even
that care which [a] careless person would use."' 9
The Court has held that:

Gross negligence means such utter want of care as to
raise a presumption that the persons at fault must have
been conscious of the probable consequences of their
carelessness, and that they must have nevertheless been
indifferent (or worse) to the danger of injury to the
person or property of others. The negligence must
amount to a reckless disregard for the safety of persons
or property. 2°
In another case, the Court said:

Gross negligence has been defined as negligence
characterized by the want of even slight care, acting or
omitting to act in a situation where there is duty to act,
not inadvertently but willfully and intentionally, with a
conscious indifference to consequences in so far as other
persons may be affected. 2'
Considering that negligence is failing to comply with

the standard of diligence, another way of looking at
16 Id. at 210.
17 Id.
1s Id. at 211.
19 Id. at 212.
20 Quezon City v. Dacara,G.R. No. 150304,15 June 2005; Chan, Jr. v. Iglesia
ni Kristo, G.R. No. 160283, 14 October 2005.
21 Benguet Electric v. CA, G.R. No. 127326, 23 December 1999.
degrees of negligence is that they reflect how close or

how far the conduct missed its mark. If diligence is
the bull's eye, slight, ordinary and gross would be the
concentric circles moving farther away from the
target.
It may be argued that differentiating degrees of

negligence is purely theoretical because in reality, it is
extremely difficult, if not impossible, to measure a
person's negligence to determine if it is slight,
ordinary or gross.
One rule provided by jurisprudence in establishing

whether an act was committed with gross negligence
is by determining whether the act was dangerous per
Se.
In Amedo v. Rio,22 Elena Amedo filed an amended

complaint alleging that:
at or about 11:30 o'clock in the morning while Filomeno
Managuit was in the course of his employment,
performing his duties as such ordinary seaman on
defendant's M/S 'Pilar II', which was anchored then
about 12 miles from the seashore of Arceli Dumarang,
Palawan, his 2-peso bill was blown by the breeze into the
sea and in his effort to retrieve the same from the waters
he was drowned. 23
The Court found that the plaintiff's claim was

predicated upon Act No. 3428, otherwise known as
the Workmen's Compensation Act, as amended by
Act No. 3812 and Commonwealth Act No. 210.
22 Amedo v. Rio, G.R. No. L-6870, 24 May 1954.

23 Id.
NEGLIGENCE j 119
Sections 2 and 4 of Act No. 3428, prior to its latest

amendment, read:
SEC. 2. Groundsfor compensation.-When any employee

receives a personal injury from any accident arising out
of and in the course of the employment, or contracts any
illness directly caused by such employment, or the result
of the nature of such employment, his employer shall
pay compensation in the sums and to the persons
hereinafter specified.
SEC. 4. Injuries not covered.- Compensation shall not be

allowed for injuries caused (1) by the voluntary intent of
the employee to inflict such injury upon himself or
another person; (2) by drunkenness on the part of the
laborer who had the accident; (3) by notorious
negligence of the same. (emphasis supplied)
Thus, there were three essential conditions to hold an

employer liable to compensate his employee for a
personal injury sustained by him from an accident:
(1) the accident must arise out of the employment;

(2) it must happen in the course of the employ-
ment; and
(3) it must not be caused by the "notorious negli-
gence" of the employee.
Regarding the third condition, the Court explained:
The phrase "notorious negligence" has been held to be

tantamount to "gross negligence", which, in turn, has
been defined as follows:
Gross negligence is defined to be the want of even

slight care and diligence.
120 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QuAsi-DELicTS
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 careless-
ness, and is indifferent, or worse, to the danger of
injury to person or property of others.' ... The
negligence must amount to a recIdess disregard of the
safety of person or property." (emphasis supplied,
citations omitted)
Applying these definitions, the Court ruled that:

in jumping into the sea, one mile and a half from the
seashore of Arceli, Dumarang, Palawan, Filomeno failed
to exercise "even slight care and diligence," that he
displayed a "reckless disregard of the safety" of his
person, that he could not have been but conscious of the
probable consequences" of his carelessness and that he
was "indifferent, or worse, to the danger of injury.
The Court compared Filomeno's act with those of

other individuals who were found to have acted with
gross negligence in other cases and noted that in none
of the other cases was the danger as apparent or
imminent as when Filomeno Managuit jumped into
the sea to recover his two peso bill. Hence, the Court
concluded that there is more reason to hold that his
death was caused by his notorious negligence.
The Court also distinguished the case of Filomeno

from the case of Cuevo vs. Barredo. In that case, the
employee, who appeared to be a good swimmer,
acted in obedience to an order of his foreman to save
or protect a property of the employer. The Court
added that:
It is, also, distinguishable from accidents occurring while
the laborer or employee is answering a call of nature, or
NEGUGENCE I 121
throwing away his cigarette, or picking up his pipe,
which had fallen, or retrieving his shoes from a car into
which a fellow worker had thrown it, these acts not
being dangerous per se and the employee being legally
justified or supposed to perform either of them in the
course of his employment. So, also, if, while Filomeno
Managuit was working, his P2 bill merely fell from his
pocket, and as he picked up the bill from the floor
something accidentally fell upon him and injured him,
he would surely be entitled to compensation, his act
being obviously innocent. In such case, it could be said,
in the words of the Lord President in Lauchlan vs.
Anderson, that "He had the right to be at the place ...he
was within the time during which he was employed ...
and he was doing a thing which a man while working
may reasonably do-a workman of his sort may
reasonably smoke, he may reasonably drop his pipe, and
he may reasonably pick it up again." Jumping into the
sea, however, is entirely different, the danger which it
entails being clear, potent and obvious. (citations
In Marinduque Iron Mines v. The Workmen's Compen-

sation Commission,24 Pedro Mamador, together with
other laborers of Marinduque Iron Mines, boarded a
truck belonging to the latter, which was then driven
by one Procopio Macunat, another employee of the
corporation. On its way to their place of work at the
mine camp, while trying to overtake another truck on
the company road, it turned over and hit a coconut
tree, resulting in the death of Mamador and injuries to
the others. The Workmen's Compensation Commis-
sioner confirmed the referee's award of compensation
to the heirs of Mamador for his accidental death.
24
Marinduque Iron Mines v. The Workmen's Compensation Commission,
G.R. No. L-8110, 30 June 1956.
The relevant issue before the Court was the effect of

the Mamador's violation of the employer's prohi-
bition against laborers riding the haulage trucks.
Marinduque claimed such violation was the laborer's
"notorious negligence" which, under the law, pre-
cludes recovery.
The Court ruled that:

There is no doubt that mere riding on haulage truck or
stealing a ride thereon is not negligence, ordinarily. It
couldn't be, because transportation by truck is not
dangerous per se. It is argued that there was notorious
negligence in this particular instance because there was
the employer's prohibition. Does violation of this order
constitute negligence? Many courts hold that violation of
a statute or ordinance constitutes negligence per se.
Others consider the circumstances.
However there is practical unanimity in the proposition

that violation of a rule promulgated by a Commission
or board is not negligence per se; but it may be evi-
dence of negligence.
This order of the employer (prohibition rather) could not

be of a greater obligation than the rule of a Commission
or board. And the referee correctly considered this
violation as possible evidence of negligence; but it
declared that under the circumstance, the laborer could
not be declared to have acted with negligence. Correctly,
it is believed, since the prohibition had nothing to do
with personal safety of the riders. (citation omitted,
emphasis supplied)
However, the Court also added that:

Nevertheless, even granting there was negligence, it
surely was not "notorious" negligence, which we have
NEGUGENCE I 123
interpreted to mean the same thing as "gross" negli-

gence-implying "conscious indifference to conse-
quences" "pursuing a course of conduct which would
naturally and probably result in injury" "utter disregard
of consequences." Getting or accepting a free ride on the
company's haulage truck could not be gross negligence,
because as the referee found, "no danger or risk was
apparent." (citations omitted)
In Ilao-Oreta v. Ronquillo,25 upon Dr. Ilao-Oreta's

advice, Eva Marie agreed to undergo a laparoscopic
procedure which was scheduled on 5 April 1999 at
2:00 p.m. At around 7:00 a.m. of said date, Eva Marie,
accompanied by her husband Noel, checked in at the
St. Luke's Medical Center and underwent pre-opera-
tive procedures, including the administration of intra-
venous fluid and enema. However, Dr. llao-Oreta did
not arrive at the scheduled time for the procedure,
and no prior notice of its cancellation was received. It
turned out that the doctor was on a return flight from
Hawaii and arrived in Manila at 10:00 p.m. that
evening. The spouses Ronquillo filed a complaint
against Dr. lao-Oreta and St. Luke's Medical Center
for breach of professional and service contract and for
damages. The trial court found that the failure of the
doctor to arrive on time was not intentional and
awarded Eva Marie only actual damages. But the
appellate court found Dr. Ilao-Oreta grossly negligent
and awarded moral, exemplary damages and
attorney's fees in addition to the actual damages,
which it also increased.
The Court defined gross negligence in this manner:

25
flao-Oretav. Ronquiflo, G.R. No. 172406,11 October 2007.
124 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASi-DEUCTS
'Gross negligence" implies a want or absence of or
failure to exercise slight care or diligence, or the entire
absence of care. It evinces a thoughtless disregard of
consequences without exerting any effort to avoid
them. It is characterized by want of even slight care,
acting or omitting to act in a situation where there is a
duty to act, not inadvertently but willfully and
intentionally with a conscious indifference to conse-
quences in so far as other persons may be affected.
(citations omitted)
The Court found that Dr. Ilao-Oreta was indeed

negligent when she scheduled to perform professional
service at 2:00 p.m. on 5 April 1999 without consider-
ing the time difference between the Philippines and
Hawaii.
But the Court held that the doctor's act did not reflect
gross negligence. Her argument that the situation then
did not present any clear and apparent harm or injury
that even a careless person may perceive and that the
operation was elective in nature, the only purpose of
which was to determine the real cause of infertility
and not to treat and cure a life threatening disease,
persuaded the Court.
The Court also took into account some factual

considerations. It appears that when the doctor was
scheduling the date of her performance of the
procedure, she had just gotten married and was
preparing for her honeymoon, and the Court believed
that it is of common human knowledge that excite-
ment attends its preparations. Thus, the Court
believed that her negligence could then be partly
NEGUGENCE I 125
attributed to human frailty, which rules out its

characterization as gross.
Thus, the Court took into account two factors in

determining the degree of negligence:
" the nature of the operation; and

" the personal circumstances of the doctor.
If the nature of the operation is taken to correspond to

the nature of the obligation, then these factors
correspond to the factors determining the diligence
required.
Other examples of situations where the Court has

found gross negligence include:
" failure by the city government to provide a

warning device at an excavation site; 26
" driving at full speed on a rainy day, on a
slippery road;27
" jump-starting a bus in a busy section of the city,
where the bus had to take a left turn;28 and
" surreptitiously digging under a chapel which
may weaken the foundation thereof endan-
gering the lives of people in worship. 29
26
Quezon City v. Dacara,G.R. No. 150304,15 June 2005.
27
Prudenciadov. Alliance Transport,G.R. No. L-33836,16 March 1987.
28
Philtrancov. CA, G.R. No. 120553,17 June 1997.
29
Chan, Jr.v. Iglesi ni Kristo,G.R. No. 160283,14 October 2005.
C. STANDARD OF CONDUCT
1. Importance of a Standard of Conduct
A standard of conduct is necessary because "[t]he

whole theory of negligence presupposes some uni-
form standard of behavior." 30 Pursuant to Article
1173, the standard of conduct corresponds to the level
of diligence required under the circumstances.
Without a standard, it cannot be determined whether
or not a person has been negligent.
2. The Fictitious Person
It seems that both common law and civil law

traditions have created a fictitious person as a means
of determining whether an actor has in fact committed
a negligent act.
a. Common Law's Reasonable Person
A standard of care or conduct may be considered as

one of the elements of the common law tort
committed via negligence, although it is not often
treated as a separate element but as part of the breach
of duty element. 31 Breach is established by proving
the failure to meet the relevant standard of care. 32
To provide a standard of conduct, common law

created a fictitious person, sometimes called the
30 PROSSER AND KEETON, supra note 14 at 173.

31
DIAMoND ET AL, UNDERSTANDING TORTS 45 (4TH ED.2010)
32 Id.note 3 at 47.
NEGUGENCE I 127
"reasonable man of ordinary prudence"33 or simply "a

reasonable person, or a person of ordinary prudence,
or a person of reasonable prudence, or some other
blend of reason and caution."M
Whatever the exact term used for this fictitious

person, the actor is required to do what such person
would do under the circumstance. Thus, this fictitious
person is the "model of all proper qualities, with only
those human shortcomings and weaknesses which the
community will tolerate on the occasion."35 He is,
therefore, the "personification of a community ideal of
6
reasonable behavior.13
Diamondet al., explains that:
During the 1800s, there was much debate about the

proper manner to measure fault for negligence liability.
The key controversy was whether the standard should
be a subjective one that takes into account each
defendant's abilities, such as mental acuity, or whether
the standard should be an objective one that compares
the defendant's conduct to an external standard...
The objective approach has prevailed and accordingly,

the determination of breach of duty in most negligence
cases requires finding that the defendant failed to act as a
reasonable person would act in the same or similar
circumstances. 37
33
PROssER AND KroN, supra note 14 at 174.
34Id.
35Id.
36
Id. at 175.
37 DiAMoND Er AL, supra note 31 at 47.
128 I ANALYSIS OF PHIUPPINE LAW AND JURJSPRUDENCE ON TORTSAND QuAsi-DEUcTS
Thus, the standard of a reasonable person is supposed
to be an objective standard.
b. Civil Law's Good Father of a Family
Philippine case law appears to equate the common

law concept of a "reasonable person" with "the
standard supposed to be supplied by the imaginary
conduct of the discreet paterfamilias of the Roman
law," 38 also known as the standard of bonus pater
familias or good father of a family.
Pursuant to Article 1173, the diligence of a good father

of a family is the standard of conduct if the law or
contract does not provide otherwise. Time and time
again, the Court has used this fictitious person,
whether called a reasonable or prudent person or a
good father of a family, to provide an objective
standard against which the actions of real persons are
measured.
In Picart v. Smith,39 the Court, after laying down the

standard of an ordinarily prudent person, explained
that the existence of negligence in a given case is not
determined by reference to the personaljudgment of the
actor in the situation before him.
But Article 1173 itself provides that the diligence

required "corresponds with the circumstances of the
persons." It is reasonable to interpret that "persons"
includes the alleged negligent actor.
38
Picartv. Smith, G.R. No. L-12219,15 March 1918.
3Id.
NEGUGENCE I 129
Therefore, under the current Civil Code, 40 the

personal circumstances of the actor must be taken into
account. This means that in determining whether
negligence exists, the court must consider the
standard of a good father of a family with the same
personal circumstances as the actor.
In Dy Teban v. Jose Ching,41 the Court held that:
The test of negligence is objective. We measure the act or

omission of the tortfeasor with that of an ordinary
reasonable person in the same situation.
Furthermore, the standard does not require that the

actor act according to the facts known to the judge at
the time of adjudication but according what the actor
knew at the time of the incident. As the Court has
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. 42
(emphasis supplied)
In Picart v. Smith, Jr.,43 Amado Picart was riding his

pony over the Carlatan Bridge. Before Picart was half
40
Picartwas decided prior to the current code.
41Dy Teban v. lose Ching, G.R No. 161803,4 February 2008.
42
Picartv. Smith, G.R. No. L-12219, 15 March 1918.
43Id.
way across, Frank Smith, Jr. approached from the

opposite direction in an automobile, going at the rate
of about 10 or 12 mph. As Smith neared the bridge, he
saw Picart, blew his horn once and continued his
course. After he reached the bridge, he blew his horn
twice because he saw that Picart was not observing
the rule of the road. Picart saw the automobile coming
and heard the warning signals. "[B]eing perturbed by
the novelty of the apparition or the rapidity of the
approach, he pulled the pony closely up against the
railing on the right side of the bridge instead of going
to the left" because he thought he did not have
sufficient time to get over to the other side. The bridge
was about 75 meters long and 4.80 meters wide. Smith
drove the automobile to his left, that being the proper
side of the road for the machine and assumed that
Picart would move to the other side. The Court then
described the succeeding events in this manner:
Seeing that the pony was apparently quiet, the
defendant, instead of veering to the right while yet some
distance away or slowing down, continued to'approach
directly toward the horse without diminution of speed.
When he had gotten quite near, there being then no
possibility of the horse getting across to the other side,
the defendant quickly turned his car sufficiently to the
right to escape hitting the horse alongside of the railing
where it was then standing; but in so doing the
automobile passed in such close proximity to the animal
that it became frightened and turned its body across the
bridge with its head toward the railing. In so doing, it
was 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
rider was thrown off with some violence. From the
evidence adduced in the case, we believe that when the
accident occurred the free space where the pony stood
NEGUGENCE I 131
between the automobile and the railing of the bridge

was probably less than one and one half meters. As a
result of its injuries the horse died. The plaintiff received
contusions which caused temporary unconsciousness
and required medical attention for several days.
The issue before the Court was whether Smith was

negligent in maneuvering his car in the manner he
did. The Court ruled that Smith was negligent. It
explained:
As the defendant started across the bridge, he had the
right to assume that the horse and 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
excited 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. (emphasis supplied)
Thus, the Court ruled that Smith's decision to stay on

his course at the same speed was negligent, even
though he was on the proper side of the road.
To justify its decision, the Court established a test to

determine the existence of negligence:
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 an
ordinarily prudent 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. (emphasis supplied)
Thus, in providing for the test of negligence, the Court

made reference to the "ordinary prudent person" of
common law but it added that "the law here" adopts
the standard supplied "by the imaginary conduct of
the discreet paterfamilias of the Roman law." Thus, it
would seem that the Court here equated the common
law concept of ordinary prudent person with the civil
law concept of bonus paterfamilias or good father of a
family.
The Court reiterated that the standard of conduct

must be external to the actor and said:
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. (emphasis supplied)
NEGUGENCE I 133
The Court also explained that the standard must be

flexible and take into account the facts of a particular
case:
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.
The standard of conduct takes into account the

information available to the actor. In so doing, the
Court appears to require that the actor be able to
foresee the danger caused by his action in order to be
negligent. It said:
Abstract speculation 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 the 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 the
conduct or guarding against its consequences.
The Court then seemed to establish another test to

determine negligence: whether the actor disregarded
134 1 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASi-DELCTS
the foreseeable harm caused by his action. In fact, it

seems the Court applied this test and not the earlier
test. It said:
Applying this test to the conduct of the defendant in the
present case, we think that negligence is clearly esta-
blished. A prudent man, placed in the position of the
defendant, would, in our opinion, have recognized that
the course which he was pursuing was fraught with risk,
and would therefore have foreseen harm to the horse
and rider as a reasonable consequence of that course.
Under these circumstances the law imposed on the
defendant the duty to guard against the threatened
harm.
Although the standard of the "ordinary prudent

person" is strictly speaking a common law concept,
the Court has applied it in cases after Picart.
In Sicam v. Jorge,44 Lulu Jorge pawned several pieces of

jewelry with Agencia de R.C. Sicam. Later, two armed
men allegedly entered the pawnshop and took away
whatever cash and jewelry were found inside the
pawnshop vault. The incident was entered in the
police blotter of the Southern Police District. Sub-
sequently, Roberto Sicam sent Lulu a letter informing
her of the loss of her jewelry due to the robbery. Lulu
then wrote a letter to Sicam expressing disbelief
because all jewelry pawned must have been deposited
with Far East Bank near the pawnshop. Lulu then
requested Sicam to prepare the pawned jewelry for
withdrawal but Sicam failed to return the jewelry.
Lulu, joined by her husband Cesar, filed a complaint
44 Sicam v. Jorge, G.R. No. 159617,8 August 2007.

NEGUGENCE 1 135
against Sicam seeking indemnification for the loss of

pawned jewelry and payment of actual, moral and
exemplary damages as well as attorney's fees. The
trial court ruled against the spouses Jorge. The
appellate court reversed the trial court.
After quoting Article 1173, the Court cited Cruz v.

Gangan,45 where it was said that:
negligence is the omission to do something which a
ordinarily regulate the conduct of human affairs, would
do; or the doing of something which a prudent and
reasonable man would not do. (emphasis supplied)
The Court reiterated that negligence is want of care

required by the circumstances.
The Court found that Sicam failed to exercise

reasonable care and caution that an ordinarily
prudent person would have used in the same
situation. It ruled that Sicam was guilty of negligence
in the operation of its pawnshop business. The Court
quoted from the testimony of Sicam where he
admitted that the vault was open at the time of the
robbery. The Court explained that Sicam's testimony
revealed that there were no security measures
adopted by Sicam in the operation of the pawnshop. It
said:
4 Cruz v. Gangan, G.R. No. 143403, 22 January 2003. Cruz in turn cites
McKee v. Intermediate Appellate Court, G.R. No. 68102, 16 July 1992.
McKee cites Layugan v. LAC, G.R. No. 73998, 14 November 1988 which
quoted the definition from "Black Law Dictionary, Fifth Edition, 930."
Evidently, no sufficient precaution and vigilance were

adopted by petitioners to protect the pawnshop from
unlawful intrusion. There was no clear showing that
there was any security guard at all. Or if there was one,
that he had sufficient training in securing a pawnshop.
Further, there is no showing that the alleged security
guard exercised all that was necessary to prevent any
untoward incident or to ensure that no suspicious
individuals were allowed to enter the premises. In fact, it
is even doubtful that there was a security guard, since it
is quite impossible that he would not have noticed that
the robbers were armed with caliber .45 pistols each,
which were allegedly poked at the employees. Signifi-
cantly, the alleged security guard was not presented at
all to corroborate petitioner Sicam's claim; not one of
petitioners' employees who were present during the
robbery incident testified in court.
In Corinthian Gardens v. Tanjangco,46 Reynaldo and

Maria Luisa Tanjangco owned Lots 68 and 69 located
at Corinthian Gardens Subdivision, which was
managed by Corinthian Gardens Association, Inc.
("CGAI"). On the other hand, Frank and Teresita
Cuaso owned Lot 65, which was adjacent to the
Tanjangcos' lots. Before the Cuasos could construct
their house on Lot 65, a relocation survey was
necessary. CGAI referred Engineer Democrito De
Dios, who conducted all the previous surveys for the
subdivision's developer, to the Cuasos. Before, during
and after the construction of the said house, CGAI
conducted periodic ocular inspections in order to
determine compliance with the approved plans
pursuant to the Manual of Rules and Regulations of
CGAI. Unfortunately, after the Cuasos constructed
46 CorinthianGardens v. Spouses Tanjangco,G.R. No. 160795, 27 June 2008.

NEGUGENCE I 137
their house, employing the services of C.B. Paraz as

builder, their perimeter fence encroached on the
Tanjangcos' Lot 69 by 87 square meters. Because no
amicable settlement was reached between the parties,
the Tanjangcos demanded that the Cuasos demolish
the perimeter fence but the latter refused. Thus, the
Tanjangcos filed a suit against the Cuasos for
Recovery of Possession with Damages. The Cuasos
filed a Third-Party Complaint against CGAI, C.B.
Paraz and Engr. De Dios. The Cuasos ascribed
negligence to C.B. Paraz for its failure to ascertain the
proper specifications of their house, and to Engr. De
Dios for his failure to undertake an accurate relocation
survey, thereby exposing them to litigation. The
Cuasos also faulted CGAI for approving their relo-
cation survey and building plans without verifying
their accuracy and in making representations as to
Engr. De Dios' integrity and competence. The Cuasos
alleged that had CGAI exercised diligence in
performing its duty, they would not have been
involved in a boundary dispute with the Tanjangcos.
Thus, the Cuasos opined that CGAI should also be
held answerable for any damage that they might incur
as a result of such construction.
The trial court rendered a decision in favor of the

Tanjangcos. The third-party complaint against CGAI
and Engr. De Dios, on the other hand, was dismissed
for lack of cause of action. The appellate court found
CGAI, C.B. Paraz and Engr. De Dios negligent in
performing their respective duties and so they were
ordered to contribute 5% each, or a total of 15% to all
judgment sums and amounts that the Cuasos shall
138 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON ToRTs AND QUASI-OELCTS
eventually pay under the decision, also with interest

of 6% per annum.
The relevant issue before the Court was the liability of

CGAI for the encroachment.
CGAI argued that the approval of the building plan of

the Cuasos was not tainted with negligence as it did
not approve the survey relocation plan but merely the
architectural, structural and sanitary plans for Cuasos'
house. It claimed that the purpose of the approval was
not to ensure that the house to be erected on a
particular lot is constructed within its boundaries but
only to ensure compliance with the Manual of Rules
and Regulations. It added that while CGAI conducts
actual site inspections, the inspection and approval of
the building plans were limited to "table inspection"
only and that the survey relocation plan was never
submitted for CGAI's approval.
The Court defined a negligent act as:

an inadvertent act; it may be merely carelessly done from
a lack of ordinary prudence and may be one which
creates a situation involving an unreasonable risk to
another because of the expectable action of the other, a
third person, an animal, or a force of nature. A negligent
act is one from which an ordinary prudent person in the
actor's position, in the same or similar circumstances,
would foresee such an appreciable risk of harm to others
as to cause him not to do the act or to do it in a more
careful manner.47 (emphasis supplied)
47 In making these statements the Court cited Capili v. Cardafia, G.R. No.
157906, 2 November 2006, as basis. Capili in turn cites "65 C.JS. §
1(14), p. 462."
NEGuG-NCE 1139
The Court also said that:
The test to determine the existence of negligence in a

particular case may be stated as follows: Did the de-
fendant in committing the alleged negligent act use that
reasonable care and caution which an ordinary person
would have used in the same situation? If not, then he is
guilty of negligence. The law, in effect, adopts the
standard supplied by the imaginary conduct of the
discreet paterfamilias in 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 a man of ordinary intel-
ligence and prudence, and determines liability according
to that standard. 48 (emphasis supplied)
On the basis of these principles, it found CGAI to be

negligent. It explained:
By its Manual of Rules and Regulations, it is reasonable

to assume that Corinthian, through its representative, in
the approval of building plans, and in the conduct of
periodic inspections of on-going construction projects
within the subdivision, is responsible in insuring
compliance with the approved plans, inclusive of the
construction of perimeter walls, which in this case is the
subject of dispute between the Tanjangcos and the
Cuasos. It is not just or equitable to relieve Corinthian of
any liability when, by its very own rules, it imposes its
authority over all its members to the end that "no new
construction can be started unless the plans are
approved by the Association and the appropriate cash
bond and pre-construction fees are paid". Moreover,
Corinthian can impose sanctions for violating these
48 Inmaking these statements the Court cited Fernando v. Court of

AMeals, G.R No. 92087,8 May 1992, which in turn cites Picartv. Smith,
Picartv. Smith, G.R. No. L-12219,15 March 1918.
140 I ANALYSIS oF PHIUPPINE LAW AND JURISPRUDENCE ON ToRTs AND QUASI-DICTS
rules. Thus, the proposition that the inspection is merely

a "table inspection" and, therefore, should exempt
Corinthian from liability, is unacceptable. After all, if the
supposed inspection is merely a "table inspection" and
the approval granted to every member is a mere for-
mality, then the purpose of the rules would be defeated.
Compliance therewith would not be mandatory, and
sanctions imposed for violations could be disregarded.
Corinthian's imprimatur on the construction of the
Cuasos' perimeter wall over the property of the
Tanjangcos assured the Cuasos that everything was in
order.
In sum, Corinthian's failure to prevent the encroach-

ment of the Cuasos' perimeter wall into Tanjangcos'
property -despite the inspection conducted-consti-
tutes negligence and, at the very least, contributed to
the injury suffered by the Tanjangcos.
Based on this case, it may be said that if one is given

the authority to approve or disapprove plans or
designs, then the requisite diligence is one which
makes sure the said plans are compliant with
requirements.
3. Special Circumstances
As previously mentioned, the standard of conduct

cannot be a purely objective standard because Article
1173 provides the diligence required corresponds to
the circumstances of the persons, of the time and of
the place.
Jurisprudence further buttresses the argument that it

is proper to consider the particular circumstances of a
person. For instance, the Court has recognized a
NEGUGENCE I 141
greater degree of diligence on the part of drivers of

motor vehicles in case of collision with bicycles.
In Afionuevo v. CA, 49 the bicycle ridden by Jerome

Villagracia collided with the car driven by Jonas
Afionuevo, and owned by Procter and Gamble Inc.,
the employer of Afionuevo's brother, Jonathan. As
part of its discussion on why Article 2185 cannot
apply to non-motorized vehicles, the Court explained:
There long has been judicial recognition of the peculiar
dangers posed by the motor vehicle. As far back as 1912,
in U.S. v. Juanillo, the Court has recognized that an
automobile is capable of great speed, greater than that of
ordinary vehicles hauled by animals, "and beyond doubt
it is highly dangerous when used on country roads,
putting to great hazard the safety and lives of the mass
of the people who travel on such roads." In the same
case, the Court emphasized:
A driver of an automobile, under such circumstances,

is required to use a greater degree of care than drivers
of animals, for the reason that the machine is capable
of greater destruction, and furthermore, it is absolute-
ly under the power and control of the driver; whereas,
a horse or other animal can and does to some extent
aid in averting an accident. It is not pleasant to be
obliged to slow down automobiles to accommodate
persons riding, driving, or walking. It is probably
more agreeable to send the machine along and let the
horse or person get out of the way in the best manner
possible; but it is well to understand, if this course is
adopted and an accident occurs, that the automobile
driver will be called upon to account for his acts. An
automobile driver must at all times use all the care
and caution which a careful and prudent driver
would have exercised under the circumstances.
49
Aflonuevo v. CA, G.R. No. 130003,20 October 2004.
142 I ANALYSIS OF PHIUPPINE LAw AND JURISPRUDENCE ON ToRTs AND QUASI-OEUCTS
American jurisprudence has had occasion to explicitly

rule on the relationship between the motorist and the
cyclist. Motorists are required to exercise ordinary or
reasonable care to avoid collision with bicyclists. While
the duty of using ordinary care falls alike on the motorist
and the rider or driver of a bicycle, it is obvious, for
reasons growing out of the inherent differences in the
two vehicles, that more is required from the former to
fully discharge the duty than from the latter. (citations
omitted)
In Heirs of Completo v. Albayda, Jr.,5o Amando Albayda

Jr. filed a complaint for damages wherein he alleged
that he was riding a bicycle on his way to the office to
report for duty when the taxi driven by Redentor
Completo bumped and sideswiped him, causing
serious physical injuries. Albayda alleged that the
proximate cause of the incident was the negligence of
Completo who, at the time of the accident, was in the
employ of Abiad. On the other hand, Completo
alleged that he was carefully driving the taxicab,
when suddenly he heard a strange sound from the
rear right side of the taxicab. When he stopped to
investigate, he found Albayda lying on the road and
holding his left leg. He immediately rendered
assistance and brought Albayda to PAFGH for
emergency treatment. Completo also asserted that he
was an experienced driver who, in accordance with
traffic rules and regulations and as common courtesy
to his fellow motorists, had already reduced his speed
to 20 kph even before reaching the intersection. In
contrast, he alleged that Albayda rode his bicycle at a
very high speed, causing him to suddenly lose control
50 Heirsof Completo v. Albayda, Jr,G.R No. 172200, 6 July 2010.

NEGuGENCE I 143
of the bicycle and hit the rear door on the right side of
the taxicab. The trial court ruled in favor of Albayda.
The appellate court affirmed the ruling but modified
the amount of damages.
The Court ruled in favor of Albayda. It said that it was

proven by a preponderance of evidence that Com-
pleto failed to exercise reasonable diligence in driving
the taxicab because he was over-speeding at the time
he hit the bicycle ridden by Albayda and that such
negligence was the sole and proximate cause of the
serious physical injuries sustained by Albayda. The
Court found that Completo did not slow down even
when he approached the intersection and it was also
proven that Albayda had the right of way,
considering that he reached the intersection ahead of
Completo.
The Court added:
The bicyde occupies a legal position that is at least

equal to that of other vehicles lawfully on the highway,
and it is fortified by the fact that usually more will be
required of a motorist than a bicyclist in discharging
his duty of care to the other because of the physical
advantages the automobile has over the bicycle.
At the slow speed of ten miles per hour, a bicyclist

travels almost fifteen feet per second, while a car
traveling at only twenty-five miles per hour covers
almost thirty-seven feet per second, and split-second
action may be insufficient to avoid an accident. It is
obvious that a motor vehicle poses a greater danger of
harm to a bicyclist than vice versa. Accordingly, while
the duty of using reasonable care falls alike on a
motorist and a bicyclist, due to the inherent differences
144 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUAS-DEuCTS
in the two vehicles, more care is required from the

motorist to fully discharge the duty than from the
bicyclist. Simply stated, the physical advantages that the
motor vehicle has over the bicycle make it more
dangerous to the bicyclist than vice versa. (emphasis
supplied)
The special circumstance in this case involves the

vehicles being driven by the plaintiff and defendant. It
appears that based on this case, a person driving a
motor vehicle is required to exercise a higher degree
of diligence than that of a bicycle rider.
The role of the special circumstance of a bicycle versus

a car in this case is not clear. The Court seems to have
based its ruling on the basis of preponderance of
evidence, not on a higher degree of diligence required
of the driver as compared to the bicycle rider.
In this case, there was testimony in favor of the taxi

driver but the lower courts and the Court adopted the
testimony in favor of the bicycle driver.
In Pacis v. Morales,5' Alfred Dennis Pacis died due to a

gunshot wound in the head which he sustained while
he was at a gun shop owned and operated by Jerome
Jovane Morales. The bullet which killed Pacis was
fired from a gun brought in by a customer for repair.
The gun was left by Morales in a drawer of a table
located inside the gun store. Morales and his
employee Armando Jarnague were not around. He
left earlier and requested sales agents Aristedes
Matibag and Jason Herbolario to look after the gun
51Padsv. Morales, G.R. No. 169467,25 February 2010.

NEGUGENCE I 145
store while he and Morales were away. Jarnague

entrusted to Matibag and Herbolario keys used in the
gun store which included the key to the drawer where
the fatal gun was kept.
It appears that Matibag and Herbolario later brought

out the gun from the drawer and placed it on top of
the table. Attracted by the sight of the gun, Pacis got
hold of the same. Matibag asked Pacis to return the
gun. The latter followed and handed the gun to
Matibag. It went off, the bullet hitting Pacis in the
head. Alfredo and Cleopatra Pacis, the parents of
Alfred, filed a case for damages against Morales. The
trial court ruled in favor of the spouses Pacis but the
appellate court reversed its decision.
The Court set aside the ruling of the appellate court

and reinstated the ruling of the trial court. It
explained:
Indeed, a higher degree of care is required of someone

who has in his possession or under his control an
instrumentality extremely dangerous in character, such
as dangerous weapons or substances.
Such person in possession or control of dangerous

instrumentalities has the duty to take exceptional
precautions to prevent any injury being done thereby.
Unlike the ordinary affairs of life or business which

involve little or no risk, a business dealing with
dangerous weapons requires the exercise of a higher
degree of care. (emphasis supplied)
146 I ANALYSIS OF PHILIPPINE LAw AND JURISPRUDENCE ON TORTS AND QUAI-DELICTs
In this case, the special circumstance was the fact that

the defendant had in his possession or control an
instrumentality extremely dangerous in character.
The Court ratiocinated that being a gun store owner,

Morales was presumed to be knowledgeable about
firearms safety and should have known never to keep
a loaded weapon in his store to avoid unreasonable
risk of harm or injury to others. He had the duty to
ensure that all the guns in his store were not loaded.
Firearms should be stored unloaded and separate from

ammunition when the firearms are not needed for ready-
access defensive use. With more reason, guns accepted
by the store for repair should not be loaded precisely
because they are defective and may cause an accidental
discharge such as what happened in this case.
Respondent was clearly negligent when he accepted the
gun for repair and placed it inside the drawer without
ensuring first that it was not loaded. In the first place,
the defective gun should have been stored in a vault.
Before accepting the defective gun for repair, respondent
should have made sure that it was not loaded to prevent
any untoward accident. Indeed, respondent should
never accept a firearm from another person, until the
cylinder or action is open and he has personally checked
that the weapon is completely unloaded. For failing to
insure that the gun was not loaded, respondent himself
was negligent. Furthermore, it was not shown in this
case whether respondent had a License to Repair which
authorizes him to repair defective firearms to restore its
original composition or enhance or upgrade firearms.
(emphasis supplied)
Thus, the Court ruled that Morales did not exercise

the degree of care and diligence required of a good
father of a family, much less the degree of care
NEGUGENCE I 147
required of someone dealing with dangerous wea-

pons, as would exempt him from liability in this case.
Interestingly, the Court initially characterized the

cause of action as one based on Article 2180 in relation
to Article 2176 or Morales' vicarious liability as
employer. But the Court did not discuss the negli-
gence of Morales' employee nor Morales' negligence
in the selection and supervision of his employee.
Instead, the Court focused on Morales' own negli-
gence in handling the gun. Thus, it seems in this case
the gun shop owner was held accountable for his own
negligence, not the negligence of his employee.
4. Children
The negligence of children poses an interesting legal

question. Can children be found negligent and liable
for quasi-deicts? Under Article 2180, parents or
guardians may be held responsible for the negligent
acts of their children. Thus, the law recognizes that
even children can be negligent. The question however
is: when is a child considered negligent?
Assuming that even children are required to act

according to a standard, what kind of diligence
should be required of them?
The issue regarding the diligence required of children

has given rise to a number of views. One view is that
children have absolute immunity. According to Sangco,
"[t]here is an age at which no care can be required of a
child, an age at which the doctrine of contributory
negligence has not application. 52 The problem with

this view is determining the age when it applies. Also,
should this age be the same for all children?
The Court in one case adopted the "age brackets"

proposed by Sangco. It said:
In our jurisdiction, a person under nine years of age is

conclusively presumed to have acted without discern-
ment, and is, on that account, exempt from criminal
liability. The same presumption and a like exemption
from criminal liability obtain 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 dis-
cernment 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.0
However, in one case the Court said:
The law fixed 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
with due care an 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
52 J. CmAR SANGcO PHnPPmm LAW ON TORTS AND DAMAGES 70 (1993).

53
Jarco Marketing v. CA, G.R. No. 129792, 21 December 1999 citing
SANGCO, id.
NEGLuGENCE I 149
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.% (emphasis
supplied)
Nevertheless, the Court in the same case did not

discount the possibility of making use of age brackets.
It explained:
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
to exercising certain rights and incurring certain
responsibilities, through it cannot 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 be 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, it 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 of legal marriage (Civil Code, Art.
83; G.O. No. 68, sec. 1).55
54Taylor v. Manila ElectricRailroad,G.R. No. 4977,22 March 1910.

z Id.
150 1 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUAI-DELIcTs
Another method is to take into account the specific

characteristic of the child in question. In one case, the
Court said:
The care and caution required of a child is according to
his maturity and capacity only, and this is to be
determined in such case by the circumstances of the
56
case.
This effectively argues for a subjective standard, one

that uses the maturity and capacity of the allegedly
negligent child to determine whether his actions were
negligent.
Yet another method is to measure the acts of the child

to "average conduct of persons his age and
experience."
A minor should not be held to the same degree of care as
an adult, but his conduct should be judged according to
the average conduct of persons of his age and
experience. The standard of conduct to which a child
must conform for his own protection is that degree of
care ordinarily exercised by children of the same age,
capacity, discretion, knowledge and experience under
57
the same or similar circumstances.
This is both an objective and subjective standard. It is

subjective because the court will look at the age and
experience of the child. It is objective because the child
will be compared to other children of similar age and
experience. This is similar to the fictitious person
s Railroad Company v. Stout, cited in Taylor v. Manila Electric Railroad,

G.R. No. 4977,22 March 1910, as "17 Wall. (84 U.S.), 657."
57
Ylarde v. Aquino, G.R. No. L-33722, 29 July 1988.
NEGUGENCE 1 151
standard except that the child is compared to a group

(i.e. children of similar age or experience) while the
adult is measured against one fictitious person. Then
again, it may not be so different as the child's actions
are measured against "average conduct" and the
fictitious person is also the average conduct expected
by the community.
In Taylor v. Manila Electric Railroad,58 David Taylor, 15
years old, and Manuel Claparols, 12 years old, went to
the power plant owned by Manila Electric to visit
Murphy, an employee of Manila Electric. Not finding
Murphy in his quarters, they wandered about the
premises. They walked across the open space where
Manila Electric dumped the cinders and ashes from its
furnaces and found some 20 or 30 brass fulminating
caps scattered on the ground which were intended for
use in the explosion of blasting charges of dynamite
and have considerable explosive power. The boys
picked up all they could find and carried them home.
After crossing the footbridge, they met a little girl
named Jessie Adrian, less than nine years old, and all
three went to the home of Manuel. The boys then
made a series of experiments with the caps. First, they
thrust the ends of the wires into an electric light
socket and they tried to break the cap with a stone.
Then, they opened one of the caps with a knife and
found that it was filled with a yellowish substance.
David held the cap while Manuel applied a lighted
match to the contents. An explosion followed, causing
injuries to all three. Jessie received a slight cut in the
58 Taylor v. Manila Electric Railroad,G.R. No. 4977,22 March 1910.

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,
which necessitated its removal.
David's father filed an action to recover damages,

contending that because of David's youth and
inexperience, his entry upon the premises and the
intervention of his action between the negligent act of
the Manila Electric leaving the detonating caps
exposed and the explosion which resulted in his
injury should not be held to have contributed in any
way to the accident. The doctrine in the "Torpedo"
and "Turntable" cases was cited as support for this
contention. The Court explained:
In the typical cases, the question involved has been

whether a railroad company is liable for an injury
received by an infant of tender years, who from mere
idle curiosity, or for purposes of amusement, enters
upon the railroad company's premises, at a place where
the railroad company's premises, at a place where the
railroad company knew, or had a good reason to
suppose, children who would likely to come, and there
found explosive signal torpedoes left exposed 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.
In these, and in a great variety of similar cases, the great

weight of authority holds the owner of the premises
liable.
NEGUGENCE 1 153
The Court quoted Railroad Company v. Stout,5 9 where it

was said:
While it is the general rule in regard to an adult that
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 circumstance of the case. 60 (emphasis supplied)
The Court explained that what was at issue in this

case was whether a 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, the
doctrine laid down in the Turntable and Torpedo cases
lent no direct aid. But in said cases, the children
involved 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. But in this case, David 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." The Court took note of the following:
e that he had been to sea as a cabin boy; and
59 Railroad Company v. Stout, cited in Taylor v. Manila Electric Railroad,

G.R. No. 4977, 22 March 1910 as "17 Wall, (84 U.S.), 657."
60Id.
154 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE oN ToRTs AND QUAsI-DELICTs
was able to earn P2.50 a day as a mechanical

draftsman thirty days after the injury was
incurred.
The Court found that:

The evidence of record leaves no room for doubt that,
despite his denials on the witness stands, 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 applications of a match to the
contents of the cap, show dearly 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 with 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 "care and caution" as might reasonably be required
of him, or that the defendant or anyone else should be
held civilly responsible for injuries incurred by him
under such circumstances. (emphasis supplied)
NEGUGENCE 1 155
The Court added:
The law fixed 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 with due care an 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. 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 to exercising certain rights and incurring certain
responsibilities, through it cannot 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 be 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 ... At 10
years of age a child may, under certain circumstances,
choose which parent it prefers to live with ... At 14 it
may petition for the appointment of a guardian .... and
may consent or refuse to be adopted ... And males of 14
and females of 12 are capable of contracting of legal
marriage ... (emphasis supplied, citations omitted)
The Court ruled that David had sufficient capacity

and understanding to be aware of the danger to which
he exposed himself when he put the match to the
contents of the cap. It ruled that that he was sui juris6'
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. It said 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 negligent act of the defendant in
leaving the caps exposed on its premises, nevertheless
David's own act was the proximate and principal
cause of the accident which inflicted the injury.
The Court further quoted the Roman law rule which

states: Quod quis ex culpa sua damnum sentit, non
intelligiturdamnum sentire.62
In Jarco Marketing v. CA, 63 Jarco Marketing was the

owner of Syvel's department store. One afternoon,
Criselda and her daughter Zhieneth Aguilar, six years
old, were at Syvel's. While Criselda was signing her
credit card slip at the payment and verification
counter, she heard a loud thud, looked behind her
and saw Zhieneth on the floor, pinned by the bulk of
the store's gift-wrapping counter. She was brought to
the hospital and died after 14 days. The parents of
61Legally competent; A person of full legal capacity.

62 He who suffers a damage by his own fault has no right to complain.
63 Jarco Marketing v. CA, G.R. No. 129792,21 December 1999.
NEGUGENCE I 157
Zhieneth filed a complaint for damages. The trial

court dismissed the complaint, ruling that the
proximate cause was Zhieneth's act of clinging on to
the counter. The appellate court reversed the ruling,
explaining that Zhieneth was incapable of negligence
at the time, being a child who was six years old. It
reasoned that if a child under nine 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 mischievous or reckless act.
As to Zhieneth's alleged negligence, the Court applied

the conclusive presumption that favors children
below nine years old in that they are incapable of
contributory negligence. It cited Sangco:
In our jurisdiction, a person under nine years of age is

conclusively presumed to have acted without discern-
ment, and is, on that account, exempt from criminal
liability. The same presumption and a like exemption
from criminal liability obtain 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.
Thus, in this case, the Court adopted the rule that a

child under nine years of age is conclusively
158 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TomS AND QUAsi-DEUCTS
presumed incapable of negligence. Being six years of
age at the time of the event, the rule applied to
Zhieneth.
In Ylarde v. Aquino,64 Edgardo Aquino was a teacher

and Mauro Soriano was the principal in Gabaldon
Primary School. At that time, the school was littered
with several concrete blocks, which were remnants of
the old school shop that was destroyed in World War
II. Realizing that the huge stones were serious hazards
to the schoolchildren, Sergio Banez, another teacher,
started burying them. Deciding to help his colleague,
Aquino gathered 18 of his male pupils, aged 10 to 11,
after class dismissal. Being their teacher-in-charge, he
ordered them to dig beside a one-ton concrete block in
order to make a hole wherein the stone can be buried.
The work was left unfinished. The following day, also
after classes, Aquino called four of the original 18
pupils to continue the digging. These four pupils were
Reynaldo Alonso, Francisco Alcantara, Ismael Abaga,
and Novelito Ylarde. They dug until the excavation
was 1 meter and 40 centimeters deep. At this point,
Aquino alone continued digging while the pupils
remained inside the pit throwing out the loose soil
that was brought about by the digging. When the
depth was right enough to accommodate the concrete
block, Aquino and his four pupils got out of the hole.
Then, Aquino left the children to level the loose soil
around the open hole while he went to see Banez,
who was about 30 meters away. Aquino wanted to
borrow from Banez the key to the school workroom
6
4 Ylarde v. Aquino, G.R No. L-33722, 29 July 1988.
NEGUGENCEI 159
wherein he could get some rope. Before leaving,

Aquino allegedly told the children "not to touch the
stone." A few minutes after Aquino left, three of the
four kids, Alonso, Alcantara and Ylarde, playfully
jumped into the pit. Then, without any warning at all,
the remaining Abaga jumped on top of the concrete
block, causing it to slide down towards the opening.
Alonso and Alcantara were able to scramble out of the
excavation on time but unfortunately for Ylarde, the
concrete block caught him before he could get out,
pinning him to the wall in a standing position. Ylarde
sustained injuries and died. Ylarde's parents filed a
suit for damages against both Aquino and Soriano.
The lower court dismissed the complaint on several

grounds, one of which was that the death of Ylarde
was due to his own reckless imprudence. On appeal,
the appellate court affirmed the lower court.
Regarding Ylarde's alleged negligence, the Court

ruled:
We cannot agree with the finding of the lower court that
the injuries which resulted in the death of the child
Ylarde were caused by his own reckless imprudence. It
should be remembered that he was only ten years old at
the time of the incident. As such, he is expected to be
playful and daring. His actuations were natural to a boy
his age. Going back to the facts, it was not only him but
the three of them who jumped into the hole while the
remaining boy jumped on the block. From this, it is clear
that he only did what any other 10-year old child would
do in the same situation.
In ruling that the child Ylarde was imprudent, it is

evident that the lower court did not consider his age and
maturity. This should not be the case. The degree of care

required to be exercised must vary with the capacity of
the person endangered to care for himself. A minor
should not be held to the same degree of care as an
adult, but his conduct should be judged according to
the average conduct of persons of his age and ex-
perience. The standard of conduct to which a child
must conform for his own protection is that degree of
care ordinarily exercised by children of the same age,
capacity, discretion, knowledge and experience under
the same or similar circumstances. Bearing this in mind,
we cannot charge the child Ylarde with reckless impru-
dence. (citations omitted, emphasis supplied)
5. Experts
a. In General
In FarEastern Shipping v. CA, 65 the Court said that:
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 employments 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 pretensions are unfounded
he commits a species of fraud on every man who
employs him in reliance on his public profession. 66
(citations omitted)
65 FarEastern Shipping v. CA, G.R No. 130068,1 October 1998.

66Id.
NEGUGENCE I 161
In.Culion v. PhilippineMotors,67 the Court ruled:

when a person holds himself out as being competent to
do things requiring professional skill, 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 attempts to do.
Therefore, the acts or omissions of one representing

himself as an expert will not be measured against an
ordinary prudent person or a good father of a family
but by a higher standard of diligence expected of
experts.
In Culion v. PhilippineMotors,68 H.D. Cranston was the

representative of Culion, the registered owner of the
motor schooner Gwendoline. Cranston decided to
have the engine on Gwendoline changed from a
gasoline consumer to a crude oil burner, expecting it
would be more economical. Cranston went to
Philippine Motors Corporation and conferred with
C.E. Quest, its manager, who agreed to do the job,
with the understanding that payment should be made
upon completion of the work. Quest visited the
Gwendoline and the work of effecting the change in
the engine was begun and conducted under his
supervision. Quest came to the conclusion that the
principal thing necessary was to install a new
carburetor. In the course of the preliminary work
upon the carburetor and its connections, it was
observed that the carburetor was flooding, and that
the gasoline or other fuel was trickling freely from the
67 Culion v. PhilippineMotors, G.R. No. 32611, 3 November 1930.

6 Id.
162 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QuAsI-DELICTS
lower part of the carburetor to the floor. This fact was
called to Quest's attention, but he appeared to think
lightly of the matter and said that, when the engine
had gotten to running well, the flooding would
disappear. After preliminary experiments and adjust-
ments had been made, the boat was taken out into the
bay for a trial run, but something went wrong and the
Gwendoline was engulfed in flames.
The Court ruled that the loss of this boat was

chargeable to the negligence and lack of skill of Quest.
Ordinarily a backfire from an engine would not be
followed by any disaster, but in this case, the leak along
the pipe line and the flooding of the carburetor had
created a dangerous situation, which a prudent mecha-
nic, versed in repairs of this nature, would have taken
precautions to avoid. The back fire may have been due
either to the fact that the spark was too advanced or the
fuel improperly mixed.
The Court explained the rule regarding the diligence

required of experts. It said:
When a person holds himself out as being competent to
do things requiring professional skill, 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 attempts to do.
The Court found that while Quest had ample

experience in fixing the engines of automobiles and
tractors, he was not experienced in the doing of
similar work on boats.
NEGUGENCE I 163
For this reason, possibly, the dripping of the mixture
from the tank on deck and the flooding of the carburetor
did not convey to his mind an adequate impression of
the danger of fire. But a person skilled in that particular
sort of work would, we think, have been sufficiently
warned from those circumstances to cause him to take
greater and adequate precautions against the danger. In
other words, Quest did not use the skill that would
have been exhibited by one ordinarily expert in
repairing gasoline engines on boats. There was here, in
our opinion, on the part of Quest, a blameworthy
antecedent inadvertence to possible harm, and this
constitutes negligence. The burning of the Gwendoline
may be said to have resulted from accident, but this
accident was in no sense an unavoidable accident. It
would not have occurred but for Quest's carelessness or
lack of skill. (emphasis supplied)
b. Pharmacists
The Court has pointed out that the profession of

pharmacy is one demanding care and skill.69 Thus,
pharmacists are expected to be experts in dispensing
the correct medicine. In fact, jurisprudence places a
high standard of diligence for pharmacists. In one
case, the Court said that the responsibility of the
druggist to use care has been qualified "care of a
specially high degree, the highest degree of care
known to practical men."70 In another case, phar-
macists were held to the highest degree of care and
diligence. 71
69 U.S. v. Pineda,G.R. No. L-12858, 22 January 1918.

70Id.
71Mercury v. De Leon, G.R. No. 165622,17 October 2008.
164 1 ANAYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DELICTS
The Court has also ruled that when a customer asks

the pharmacist for a harmless remedy, the delivery of
a poisonous drug by mistake is primafacie negligence,
placing the burden on the pharmacist to show that the
mistake was under the circumstances consistent with
the exercise of due care. 72
An interesting issue is whether the customer should

be held liable for injury caused by his failure to
examine the medication dispensed to him. The Court
has said that the rule of caveat emptor cannot apply to
the purchase and sale of drugs 73 and:
The nature of drugs is such that examination would not
avail the purchaser anything. It would be idle mockery
for the customer to make an examination of a compound
of which he can know nothing. Consequently, it must be
that the druggist warrants that he will deliver the drug
called for.74
However, it is unreasonable to apply this rule in

situations where the packaging of the medicine
dispensed makes it clear that the medicine given is
not the one requested.
Finally, the Court has stated that for the pharmacist,

"mistake is negligence and care is no defense."73
In U.S. v. Pineda,76 Santiago Pineda was a registered

pharmacist of long standing and the owner of a drug
72 U.S. v. Pineda, G.R. No. L-12858, 22 January 1918.

7 Id.
74Id.
75 U.S. v. Pineda, G.R. No. L-12858, 22 January 1918; Mercury Drug v. De
Leon, G.R. No. 165622,17 October 2008.
NEGUGENCE I 165
store. Feliciano Santos, having some sick horses,

presented a copy of a prescription obtained from Dr.
Richardson at Pineda's drug store for filling. The
prescription read:
"dorato de potasa - 120 gramos - en seis papelitos de 20

gramos, paracaballo."
Under the supervision of Pineda, the prescription was

prepared and returned to Santos in the form of six
papers marked:
"Botica Pineda - Clorato potasa - 120.00 - seis papeles -

paracaballo - ."
Santos, believing that he had purchased the potassium

chlorate, which he had asked for, put two of his six
packages in water and gave them to two of his sick
horses. Another package was mixed with water for
another horse but was not used. The two horses which
had been given the preparation died shortly
afterwards. Santos took the three remaining packages
to the Bureau of Science for examination. On analysis,
Drs. Pefia and Darjuan of the Bureau of Science found
that the packages contained not potassium chlorate
but barium chlorate. At the instance of Santos, the two
chemists also went to the drug store of Pineda and
bought potassium chlorate, which when analyzed was
found to be barium chlorate. Barium chlorate is a
poison while potassium chlorate is not. Dr. Buen-
camino, a veterinarian, performed an autopsy on the
76 U.S. v.Pineda, G.R. No. L-12858, 22 January 1918.

166 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QuAsi-DELicTS
horse and found that death was the result of

poisoning.
The Court explained that under the Pharmacy Law,

Pineda, as a pharmacist, was "responsible for the
quality of all drugs and poisons which he sells." In
addition, it was unlawful for him to sell any drug or
poison under any "fraudulent name."
Regarding the diligence required of pharmacists, the

Court said:
The profession of pharmacy, it has been said again and
again, is one demanding care and skill. The res-
ponsibility of the druggist to use care has been various-
ly qualified as "ordinary care," "care of a specially high
degree," "the highest degree of care known to practical
men." Even under the first conservative expression,
"ordinary care" with reference to the business of a
druggist, the Supreme Court of Connecticut has said
must be held to signify "the highest practicable degree
of prudence, thoughtfulness, and vigilance, and the
most exact and reliable safeguards consistent with the
reasonable conduct of the business, in order that
human life may not constantly be exposed to the danger
flowing from the substitution of deadly poisons for
harmless medicine." ... The "skill "required of a druggist
is denominated as "high" or "ample." ... In order words,
the care required must be commensurate with the
danger involved, and the skill employed must
correspond with the superior knowledge of the
business which the law demands. (citations omitted,
emphasis supplied)
The Court said that "[t]he druggist is responsible as an

absolute guarantor of what he sells." It quoted a
NEGUGENCE I 167
decision of the Supreme Court of Kentucky which

said:
As applicable to the owners of drug stores, or persons

engaged in vending drugs and medicines by retail, the
legal maxim should be reversed. Instead of caveat
emptor, it should be caveat venditor. That is to say, let
him be certain that he does not sell to a purchaser or
send to a patient one drug for another, as arsenic for
calomel, cartharides for or mixed with snakeroot and
Peruvian bark, or even on innocent drug, calculated to
produce a certain effect, in place of another sent for
and designed to produce a different effect. If he does
these things, he cannot escape civil responsibility, upon
the alleged pretexts that it was an accidental or an
innocent mistake; that he had been very careful and
particular, and had used extraordinary care and
diligence in preparing or compounding the medicines as
required, etc. Such excuses will not avail him. (emphasis
supplied, citation omitted)
The Court further explained that "where a customer

calls upon a druggist for a harmless remedy, delivery
of a poisonous drug by mistake by the druggist is
prima facie negligence, placing the burden on him to
show that the mistake was under the circumstances
consistent with the exercise of due care." Thus, a
presumption of negligence arises against the phar-
macist when he delivers a poisonous drug when a
harmless remedy is requested.
Regarding the argument that buyers should be careful

with what they are buying, the Court said:
The rule of caveat emptor cannot apply to the purchase

and sale of drugs. The vendor and the vendee do not
stand at arm's length as in ordinary transactions. An
imperative duty is on the druggist to take precautions
to prevent death or serious injury to anyone who relies
on his absolute honesty and peculiar learning. The
nature of drugs is such that examination would not
avail the purchaser anything. It would be idle mockery
for the customer to make an examination of a compound
of which he can know nothing. Consequently, it must be
that the druggist warrants that he will deliver the drug
called for.
In Mercury Drug v. De Leon, 77 Judge Raul De Leon

noticed that his left eye was reddish and he had
difficulty reading. Dr. Charles Milla prescribed the
drugs "Cortisporin Opthahnic" and "Ceftin" to relieve
his eye problems. De Leon went to the Mercury Drug
Store to buy the prescribed medicines. He showed his
prescription to Aurmela Ganzon, a pharmacist
assistant and paid for the medicine handed over by
Ganzon. At his chambers, De Leon requested his
sheriff to assist him in using the eye drops. The sheriff
applied two to three drops on his left eye. Instead of
relieving his irritation, he felt searing pain. He
immediately rinsed the affected eye with water, but
the pain did not subside. Only then did he discover
that he was given the wrong medicine, "Cortisporin
Otic Solution." De Leon returned to the same Mercury
Drug branch, with his left eye still red and teary.
When he confronted Ganzon on why he was given ear
drops instead of the prescribed eye drops, she did not
apologize and instead brazenly replied that she was
unable to fully read the prescription. In fact, it was her
supervisor who apologized and informed De Leon
that they did not have "Cortisporin Opthalmic." De
77
Mercury Drug v. De Leon, G.R. No. 165622,17 October 2008.
NEGUGENCE I 169
Leon wrote Mercury Drug but did not receive any

response. Having been denied his simple desire for a
written apology and explanation, De Leon filed a
complaint for damages against Mercury Drug.
Mercury Drug denied that it was negligent and

pointed out that the proximate cause of De Leon's
unfortunate experience was his own negligence.
Mercury Drug argued that De Leon should have first
read and checked to see if he had the right eye
solution before he used any on his eye. He could have
also requested his sheriff to do the same before the
latter applied the medicine on such a delicate part of
his body. In addition, Mercury Drug explained that
there is no available medicine known as "Cortisporin
Opthalmic" in the Philippine market. Furthermore,
what was written on the piece of paper De Leon
presented to Ganzon was "Cortisporin Solution."
Accordingly, she gave him the only available
"Cortisporin Solution" in the market. Finally, it
argued that even the piece of paper De Leon
presented upon buying the medicine cannot be
considered as proper prescription because it lacked
the required information concerning the attending
doctor's name and license number. According to
Ganzon, she entertained De Leon's purchase request
only because he was a regular customer of their
branch.
The Court ruled that Mercury Drug and Ganzon

failed to exercise the highest degree of diligence
expected of them. Regarding the diligence required of
them, the Court said that as active players in the field
170 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DEuCTS
of dispensing medicines to the public, the highest

degree of care and diligence is expected of them.
The Court cited U.S. jurisprudence in expounding on

the diligence required of pharmacists.
In the United States case of Tombari v. Conners, it was
ruled that the profession of pharmacy demands care and
skill, and druggists must exercise care of a specially high
degree, the highest degree of care known to practical
men. In other words, druggists must exercise the highest
practicable degree of prudence and vigilance, and the
most exact and reliable safeguards consistent with the
reasonable conduct of the business, so that human life
may not constantly be exposed to the danger flowing
from the substitution of deadly poisons for harmless
medicines.
In Fleet v. Hollenkemp, the US Supreme Court ruled that a

druggist that sells to a purchaser or sends to a patient
one drug for another or even one innocent drug,
calculated to produce a certain effect, in place of another
sent for and designed to produce a different effect,
cannot escape responsibility, upon the alleged pretext
that it was an accidental or innocent mistake. His
mistake, under the most favorable aspect for himself, is
negligence. And such mistake cannot be countenanced
or tolerated, as it is a mistake of the gravest kind and of
the most disastrous effect.
Smith's Admrx v. Middelton teaches us that one holding

himself out as competent to handle drugs, having
rightful access to them, and relied upon by those
dealing with him to exercise that high degree of
caution and care called for by the peculiarly dangerous
nature of the business, cannot be heard to say that his
mistake by which he furnishes a customer the most
deadly of drugs for those comparatively harmless, is
NEGUGENCE I 171
not in itself gross negligence. (citations omitted,

emphasis supplied)
The Court ruled that Mercury Drug and Ganzon had

failed to live up to the high standard of diligence
expected of them as pharmacy professionals. They
were grossly negligent in dispensing ear drops
instead of the prescribed eye drops to De Leon.
Worse, they attempted to shift the blame to their
victim by underscoring his own failure to read the
label. The Court further explained:
As a buyer, De Leon relied on the expertise and
experience of Mercury Drug and its employees in
dispensing to him the right medicine. This Court has
ruled that in the purchase and sale of drugs, the buyer
and seller do not stand at arm's length. There exists an
imperative duty on the seller or the druggist to take
precaution to prevent death or injury to any person who
relies on one's absolute honesty and peculiar learning.
c. Medical Professionals
The Court has ruled that doctors have a duty to use at

least the same level of care that any other reasonably
competent doctor would use to treat a condition
under the same circumstances. 78
In one case, the Court said:

Medical malpractice is a particular form of negligence
which consists in the failure of a physician or surgeon to
apply to his practice of medicine that degree of care and
skill which is ordinarily employed by the profession
78 Cruz v. CA, G.R. No. 122445,18 November 1997.

generally, under similar conditions, and in like

surrounding circumstances. 9
Similarly in another case, the Court noted that the

standard care is the "degree of skill, care, and learning
'8' 0
possessed by other persons in the same profession.
It added:
in treating his patient, a physician is under a duty to [the

former] to exercise that degree of care, skill and diligence
which physicians in the same general neighborhood
and in the same general line of practice ordinarily
possess and exercise in like cases. Stated otherwise, the
physician has the duty to use at least the same level of
care that any other reasonably competent physician
would use to treat the condition under similar
circumstances. (citation omitted, emphasis supplied)
In another case, the Court said that to successfully

pursue a medical negligence case:
a patient must only prove that a health care provider

either failed to do something which a reasonably
prudent health care provider would have done, or that
he did something that a reasonably prudent provider
would not have done; and that failure or action caused
injury to the patient.8 '
In Cruz v. CA, 82 Lydia Umali was examined by Dr.

Ninevetch Cruz, who found a "myoma" in her uterus
79Cayao Lasam v. Spouses Ramolete, G.R No. 159132,18 December 2008.

80
Lucas v. Tuaflo, G.R. No. 178763, 21 April 2009.
81 Professional Services v. Agana, G.R. No. 126297, 31 January 2007. The
Court said the same thing in Cayao Lasam v. Spouses Ramolete except
that in that case the Court used the terms "physician or surgeon"
instead of "health care provider."
82Cruz v. CA, G.R. No. 122445,18 November 1997.
NEGUGENCE I 173
and scheduled her for a hysterectomy operation.
Rowena Umali De Ocampo accompanied her mother
Lydia to the Perpetual Help Clinic and General
Hospital. Because of the untidy state of the clinic,
Rowena tried to persuade her mother not to proceed
with the operation. Lydia informed Rowena that Cruz
told her that she must be operated on as scheduled.
Rowena and her husband, her sister and two aunts
waited outside the operating room while Lydia
underwent operation. While they were waiting, Dr.
Lina Ercillo went out of the operating room and
instructed them to buy tagamet ampules, which
Rowena's sister immediately bought. About one hour
had passed when Ercillo came out again this time to
ask them to buy blood for Lydia. They bought type
"A" blood from the St. Gerald Blood Bank and the
same was brought by the attendant into the operating
room. After the lapse of a few hours, Cruz informed
them that the operation was finished. The operating
staff then went inside the Cruz's clinic to take their
snacks. Some 30 minutes after, Lydia was brought out
of the operating room in a stretcher and Cruz asked
Rowena and the other relatives to buy additional
blood for Lydia. Unfortunately, they were not able to
comply with Cruz's order as there was no more type
"A" blood available in the blood bank. Thereafter, a
person arrived to donate blood, which was later
transfused to Lydia. Rowena then noticed her mother,
who was attached to an oxygen tank, was gasping for
breath. Apparently, the oxygen supply had run out
and Rowena's husband, together with the driver of
the accused, had to go to the San Pablo District
Hospital to get oxygen. Lydia was given the fresh
supply of oxygen as soon as it arrived. But at around

10:00 p.m., she went into shock and her blood
pressure dropped to 60/50. Lydia's unstable condition
necessitated her transfer to the San Pablo District
Hospital so she could be connected to a respirator and
further examined. The transfer to the San Pablo
District Hospital was without the prior consent of
Rowena or of the other relatives present. They only
found out about the intended transfer only when an
ambulance arrived to take Lydia to the San Pablo
District Hospital. Rowena and her other relatives then
boarded a tricycle and followed the ambulance. Upon
Lydia's arrival at the San Pablo District Hospital, she
was wheeled into the operating room, and Cruz and
Dr. Ercillo re-operated on her because there was blood
oozing from the abdominal incision. The attending
physicians summoned Dr. Bartolome Angeles, head of
the Obstetrics and Gynecology Department of the San
Pablo District Hospital. However, when Dr. Angeles
arrived, Lydia was already in shock and possibly
dead as her blood pressure was already 0/0. Dr.
Angeles then informed Cruz and Ercillo that there
was nothing he could do to help save the patient.
While Cruz was closing the abdominal wall, the
patient died. Her death certificate stated "shock" as
the immediate cause of death and "Disseminated
Intravascular Coagulation (DIC)" as the antecedent
cause. Cruz and Ercillo were charged criminally
under Article 365 of the Revised Penal Code. The
municipal trial court found Ercillo not guilty but Cruz
guilty of the crime. The Regional Trial Court and the
Court of Appeals affirmed the conviction.
NEGUGENCE 1 175
The Court, however, acquitted Cruz.
The Court began by reiterating the elements of

reckless imprudence, one of which is that "there is
inexcusable lack of precaution on the part of the
offender, taking into consideration his employment or
occupation, degree of intelligence, physical condition,
and other circumstances regarding persons, time and
place."
The Court pointed out that:
Whether or not a physician has committed an

"inexcusable lack of precaution" in the treatment of his
patient is to be determined according to the standard of
care observed by other members of the profession in
good standing under similar circumstances bearing in
mind the advanced state of the profession at the time of
treatment or the present state of medical science.
(emphasis supplied, citation omitted)
The Court cited Leonila Garcia-Rueda v. Wilfred L.

Pascasio,et al., 83 where the Court stated that:
in accepting a case, a doctor in effect represents that,

having the needed training and skill possessed by
physicians and surgeons practicing in the same field,
he will employ such training, care and skill in the
treatment of his patients. He therefore has a duty to use
at least the same level of care that any other reasonably
competent doctor would use to treat a condition under
the same circumstances. It is in this aspect of medical
malpractice that expert testimony is essential to
establish not only the standard of care of the
83Leonila Garcia-Rueda vs. Wifred L. Pascasio, et al., G.R. No. 118141, 5

September 1997.
176 I ANALYSIS OF PHILIPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DELICTS
profession but also that the physician's conduct in the
treatment and care falls below such standard. 84
84Id.
NEGLIGENCE I 177
Citation:
Tue Apr 17 10:45:53 2018



III. Presumptions of Negligence
As a general rule, the person who alleges negligence

has the burden of proving it. I But law and juris-
prudence provide for certain presumptions which the
claimant can take advantage of.
A. IN MOTOR VEHICLE MISHAPS
1. Previous Violations
Under Article 2184, a driver in a motor vehicle mishap

is disputably presumed negligent if he had been
found guilty of reckless driving or violating traffic
regulations at least twice within the next preceding
two months. However, an interesting issue regarding
the presumption is whether it will arise only if the
owner of the motor vehicle was inside the vehicle
when the mishap happened. This issue arises because
Article 2184 in its entirety states:
ARTICLE 2184. In motor vehicle mishaps, the owner is
solidarily liable with his driver, if the former, who was in
the vehicle, could have, by the use of the due diligence,
prevented the misfortune. It is disputably presumed that
a driver was negligent, if he had been found guilty of
reckless driving or violating traffic regulations at least
twice within the next preceding two months.
Rule 131 Section 1 Rules of Court

SECTION 1. Burden ofproof. -Burden of proof is the duty of a party to
present evidence on the facts in issue necessary to establish his claim
or defense by the amount of evidence required by law
178
PRESUMPTONS OF NEGUGENCE I 179
If the owner was not in the motor vehicle, the provisions

of Article 2180 are applicable.
The first and last sentence of the article implies that it

covers situations when the owner of the motor vehicle
was in the vehicle at the time of the mishap. However,
it could also be argued that the reason for the pre-
sumption is the pattern of negligence of the driver.
Therefore, whether or not the owner of the motor
vehicle was in the vehicle at the time of the mishap in
question, the reason for the presumption still exists.
Another issue is the meaning of the phrase "if he had

been found guilty of reckless driving or violating
traffic regulations at least twice within the next
preceding two months." It is clear that for the
presumption to arise, there must either be reckless
driving or traffic violations. But is a single incident of
reckless driving sufficient or must there also be two
incidents of reckless driving? Also, should the reckless
driving be "within the next preceding two months" or
is the time frame requirement only for traffic
violations? It may be argued that being found guilty
of reckless driving is a graver offense than a traffic
violation 2 and therefore a greater indicator of a ten-
dency for negligence. Thus, being found guilty of a
single reckless driving incident should be enough.
However, this incident of reckless driving, like the
two traffic violations, must also be "within the next
preceding two months." If the article limits the
2 Traffic violations involving reckless driving would be subsumed

under the first term so "traffic violations" in this article can be
understood to mean all infractions apart from reckless driving.
180 1ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DEUCTS
presumption of negligence to recent traffic violations,

then it would seem that the law considers non-recent
behavior as not indicative of current negligence. The
same rationale should apply to a prior incident of
reckless driving.
2. Simultaneous Violations
Under Article 2185, 3 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. But, the presumption arises only if there is
no proof to the contrary.
In Tison v. Spouses Pomasin,4 two vehicles, a tractor-

trailer and a jitney, figured in a vehicular collision
along Maharlika Highway. Laarni Pomasin was
driving the jitney towards the direction of Legaspi
City while the tractor-trailer, driven by Claudio Jabon,
was traversing the opposite lane going towards Naga
City. Multiple death and injuries to those in the jitney
resulted from the collision. The spouses Pomasin et al.
filed a complaint for damages against Albert Tison,
the owner of the truck, and Jabon. The trial court
dismissed the complaint but the appellate court
reversed it, finding that it was the reckless driving of
Jabon that caused the collision. The appellate court
also noted that the restriction in Jabon's driver's
license was violated, thus giving rise to the pre-
3 ARTICLE 2185. Unless there is proof to the contrary, it is presumed

that a person driving a motor vehicle has been negligent if at the time
of the mishap, he was violating any traffic regulation. (n)
4 Tison v. Spouses Pomasin, G.R. No. 173180, 24 August 2011.
PRESUMPTIONS OF NEGUGENCE I 181
sumption that he was negligent at the time of the

accident.
The Court gave greater weight to the trial court's

finding of negligence on the part of the jitney driver
and that this was the proximate cause of the accident.
As to the presumption of negligence, the Court said:

We did not lose sight of the fact that at the time of the
incident, Jabon was prohibited from driving the truck
due to the restriction imposed on his driver's license, i.e.,
restriction code 2 and 3. As a matter of fact, Jabon even
asked the Land Transportation Office to reinstate his
articulated license containing restriction code 8 which
would allow him to drive a tractor-trailer. The Court of
Appeals concluded therefrom that Jabon was violating a
traffic regulation at the time of the collision.
Driving without a proper license is a violation of traffic

regulation. Under Article 2185 of the Civil Code, the
legal presumption of negligence arises if at the time of
the mishap, a person was violating any traffic regulation.
However, in Sanitary Steam Laundry, Inc. v. Court of
Appeals, we held that a causal connection must exist
between the injury received and the violation of the
traffic regulation. It must be proven that the violation
of the traffic regulation was the proximate or legal
cause of the injury or that it substantially contributed
thereto. Negligence, consisting in whole or in part, of
violation of law, like any other negligence, is without
legal consequence unless it is a contributing cause of the
injury. (citations omitted)
The highlighted portion should not be interpreted to

mean that the presumption of negligence only arises
when the traffic violation was the proximate cause of
the injury. First of all, there is nothing in the text of the
182 I ANALYSIS OF PHIUPPINE LAW AND JURJSPRUDENCE ON TORTS AND QUASI-DEUCTS
article which would suggest such a requirement.

Second, such a requirement would put the cart before
the horse, so to speak. A presumption of negligence
only provides evidence of negligence in the absence of
proof to the contrary. To establish proximate cause,
one would have to prove that the negligent act in
question is the legal cause of the injury. If one were
able to prove that a negligent act is the proximate
cause, then one would not need a presumption of
negligence any more.
Instead, the Court's statements in Tison should be

interpreted to mean that despite the presumption of
negligence arising from the traffic regulation
violation, the claimant must still prove that such
negligence was the proximate cause in order to
successfully claim for damages. This view is
supported by Sanitary Steam v. CA,5 the case cited by
the Court. This case involved a collision between a
truck of Sanitary Steam and another vehicle, which
caused the death of three persons and the injuries of
several others riding the car. The trial court found the
driver of Sanitary Steam responsible and therefore
held Sanitary Steam liable for damages. The appellate
court affirmed the decision.
In its appeal to the Court, Sanitary Steam argued that

the driver of the other vehicle was guilty of
contributory negligence because it was guilty of
violation of traffic rules and regulations at the time of
the mishap and pursuant to Article 2185 of the Civil
5 Sanitary Steam v. CA, G.R. No. 119092,10 December 1998.

Code, he was presumed to be negligent. To this the

Court held:
First of all, it has not been shown how the alleged
negligence of the Cimarron driver contributed to the
collision between the vehicles. Indeed, petitioner has the
burden of showing a causal connection between the
injury received and the violation of the Land Trans-
portation and Traffic Code. He must show that the
violation of the statute was the proximate or legal cause
of the injury or that it substantially contributed thereto.
Negligence, consisting in whole or in part, of violation of
law, like any other negligence, is without legal
consequence unless it is a contributing cause of the
injury. Petitioner says that "driving an overloaded
vehicle with only one functioning headlight during
nighttime certainly increases the risk of accident," that
because the Cimarron had only one headlight, there was
"decreased visibility," and that the fact that the vehicle
was overloaded and its front seat overcrowded
"decreased [its] maneuverability." However, mere
allegations such as these are not sufficient to discharge
its burden of proving clearly that such alleged negligence
was the contributing cause of the injury. (citations
omitted)
Thus, the Court pointed out that proving the violation

of the traffic code was not enough. Such violation
must be the proximate cause of the injury. It did not
say that the violation must be the proximate cause
before the presumption could arise.
In Tison, the Court also said:
Likewise controlling is our ruling in Aflonuevo v. Court of

Appeals where we reiterated that negligence per se,
arising from the mere violation of a traffic statute, need
not be sufficient in itself in establishing liability for
damages. In said case, Afionuevo, who was driving a car,

did not attempt "to establish a causal connection
between the safety violations imputed to the injured
cyclist, and the accident itself. Instead, he relied on a
putative presumption that these violations in themselves
sufficiently established negligence appreciable against
the cyclist. Since the onus on Aflonuevo is to con-
clusively prove the link between the violations and the
accident, we can deem him as having failed to discharge
his necessary burden of proving the cyclist's own
liability."
Aflonuevo v. CA 6 is instructive for another reason. In

this case, one of the issues raised was whether Article
2185 of the New Civil Code should apply by analogy
to non-motorized vehicles. In this case, the bicycle
ridden by Jerome Villagracia collided with the car
driven by Jonas Aftonuevo, owned by Procter and
Gamble Inc., the employer of Afionuevo's brother,
Jonathan. Villagracia sustained serious injuries, which
necessitated his hospitalization and four operations.
Villagracia instituted an action for damages against
Procter and Gamble Phils., Inc. and Afionuevo. The
trial court ruled against Procter and Gamble and
Afionuevo and was affirmed by the appellate court.
Afionuevo claimed that Villagracia violated traffic

regulations when he failed to register his bicycle or
install safety gadgets thereon. He posited that Article
2185 of the Civil Code applies by analogy.
6 Aflonuevo v. CA, G.R. No. 130003,20 October 2004.


The provision was introduced for the first time in this
jurisdiction with the adoption in 1950 of the New Civil
Code. Its applicability is expressly qualified to motor
vehicles only, and there is no ground to presume that the
law intended a broader coverage. (citation omitted)
Afionuevo hypothesized that Article 2185 should

apply by analogy to all types of vehicles. He pointed
out that modem-day travel is more complex now than
when the Code was enacted, and the number and
types of vehicles now in use are far more numerous
than as of then. He suggested that at the time of the
enactment of the Code, the legislators "must have
seen that only motor vehicles were of such public
concern that they had to be specifically mentioned,"
yet today, the interaction of vehicles of all types and
nature has "inescapably become matter of public
concern" so as to expand the application of the law to
be more responsive to the times.
The Court ruled that what Afionuevo sought was for

the Court to amend the explicit command of the
legislature, as embodied in Article 2185, a task beyond
the pale of judicial power. But because the Court was
being asked to consider the matter, it held that it
might as well examine whether Article 2185 could be
interpreted to include non-motorized vehicles. It
explained:
At the time Article 2185 was formulated, there existed a
whole array of non-motorized vehicles ranging from
human-powered contraptions on wheels such as bi-
cycles, scooters, and animal-drawn carts such as calesas
and carromata. These modes of transport were even
more prevalent on the roads of the 1940s and 1950s than
they are today, yet the framers of the New Civil Code
chose then to exclude these alternative modes from the
scope of Article 2185 with the use of the term "motorized
vehicles." If Aftonuevo seriously contends that the appli-
cation of Article 2185 be expanded due to the greater
interaction today of all types of vehicles, such argument
contradicts historical experience. The ratio of motorized
vehicles as to non-motorized vehicles, as it stood in 1950,
was significantly lower than as it stands today. This will
be certainly affirmed by statistical data, assuming such
has been compiled, much less confirmed by persons over
sixty. Afionuevo's characterization of a vibrant intra-
road dynamic between motorized and non-motorized
vehicles is more apropos to the past than to the present.
There is a fundamental flaw in Afionuevo's analysis of

Article 2185, as applicable today. He premises that the
need for the distinction between motorized and non-
motorized vehicles arises from the relative mass of
number of these vehicles. The more pertinent basis for
the segregate classification is the difference in type of
these vehicles. A motorized vehicle operates by reason of
a motor engine unlike a non-motorized vehicle, which
runs as a result of a direct exertion by man or beast of
burden of direct physical force. A motorized vehicle,
unimpeded by the limitations in physical exertion, is
capable of greater speeds and acceleration than non-
motorized vehicles. At the same time, motorized vehicles
are more capable of inflicting greater injury or damage in
the event of an accident or collision. This is due to a
combination of factors peculiar to the motor vehicle,
such as the greater speed, its relative greater bulk of
mass, and greater combustability due to the fuels that
they use.
The Court further explained that "[tihere long has

been judicial recognition of the peculiar dangers posed
PRESUMprnONS OF NEGUGENCE 1 187
by the motor vehicle." It added:

The Code Commission was cognizant of the difference in
the natures and attached responsibilities of motorized
and non-motorized vehicles. Article 2185 was not
formulated to compel or ensure obeisance by all to
traffic rules and regulations. If such were indeed the
evil sought to be remedied or guarded against, then the
framers of the Code would have expanded the provision
to include non-motorized vehicles or for that matter,
pedestrians. Yet, that was not the case; thus the need
arises to ascertain the peculiarities attaching to a
motorized vehicle within the dynamics of road travel.
The fact that there has long existed a higher degree of
diligence and care imposed on motorized vehicles,
arising from the special nature of a motor vehicle, leads
to the inescapable conclusion that the qualification under
Article 2185 exists precisely to recognize such higher
standard. Simply put, the standards applicable to motor
vehicle are not on equal footing with other types of
vehicles. (emphasis supplied)
Thus, the Court ruled that Article 2185 should not

apply to non-motorized vehicles, even by analogy. It
said that there was factual and legal basis that
necessitated the distinction under Article 2185, and to
adopt Afionuevo's thesis would unwisely obviate this
distinction.
B. POSSESSION OF DANGEROUS WEAPONS AND
SUBSTANCES
Under Article 21887 the defendant is presumed neg-

ligent if the death or injury results from his possession
7 ARTICLE 2188. There is prima fade presumption of negligence on the

part of the defendant if the death or injury results from his possession
of dangerous weapons or substances, such as firearms and poison,
of dangerous weapons or substances, such as firearms

and poison.
The presumption does not arise when the possession

or use of the dangerous weapon or substance is
indispensable to his occupation or business.
It would seem that this article does not penalize mere

possession of dangerous weapons or substances
because the presumption of negligence does not arise
if use or possession of these items is indispensable to
occupation or business. Thus, it penalizes those who
possess such dangerous items for reasons not related
to business or occupation. An example would be those
who possess guns for recreational purposes.
C. COMMON CARRIERS
Article 17358 provides that a common carrier is pre-

sumed to have been at fault or to have acted negli-
gently if the goods it is transporting are lost,
destroyed or deteriorated, unless it proves that it
observed extraordinary diligence as required in
Article 1733.
except when the possession or use thereof is indispensable in his

occupation or business. (n)
8 ARTICLE 1735. In all cases other than those mentioned in Nos. 1, 2, 3,
4, and 5 of the preceding article, if the goods are lost, destroyed or
deteriorated, common carriers are presumed to have been at fault or
to have acted negligently, unless they prove that they observed
extraordinary diligence as required in Article 1733.
This presumption does not arise if the loss,

destruction, or deterioration of the goods was due to
the following causes 9:
1. Rood, storm, earthquake, lightning, or other

natural disaster or calamity;
2. Act of the public enemy in war, whether intern-
ational or civil;
3. Act or omission of the shipper or owner of the
goods;
4. The character of the goods or defects in the
packing or in the containers;
5. Order or act of competent public authority.
Article 175210 further provides that a presumption of
negligence on the part of the common carrier arises
even if there is an agreement limiting the liability of
the common carrier.
Thus, the Court has ruled that:

The general rule under Articles 1735 and 1752 of the
Civil Code is that common carriers are presumed to have
been at fault or to have acted negligently in case the
goods transported by them are lost, destroyed or had
deteriorated. To overcome the presumption of liability
for the loss, destruction or deterioration of the goods
under Article 1735, the common carriers must prove that
they observed extraordinary diligence as required in
Article 1733 of the Civil Code. The responsibility of
9 Article 1734.
10 Article 1752. Even when there is an agreement limiting the liability of
the common carrier in the vigilance over the goods, the common
carrier is disputably presumed to have been negligent in case of their
loss, destruction or deterioration.
observing extraordinary diligence in the vigilance over

the goods is further expressed in Article 1734 of the same
Code, the article invoked by petitioner to avoid liability
1
for damages.'
D. RES IPSA LoQurruR
1. Definition
Res ipsa loquitur literally means "the thing or the

transaction speaks for itself.' 12
As a legal maxim it means that:
the fact of the occurrence of an injury, taken with the

surrounding circumstances, may permit an inference or
raise a presumption of negligence, or make out a
plaintiff's prima facie case, and present a question of fact
for defendant to meet with an explanation.13
Res ipsa loquitur is admittedly of common law origin

and perhaps the earliest use of the rule was made in
Africa v. Caltex.14 In this case, the Court explained that
the rule was applied in this jurisdiction in the case of
Espiritu vs. Philippine Power and Development Co., 15
wherein Justice J.B.L. Reyes penned the decision of the
Court of Appeals. Since that time, the rule has been
used in a number of cases.
11 CompaniaMaritimav. CA, G.R. No. L-31379, 29 August 1988.

12 Professional Seruices v. Agana, G.R. No. 126297, 31 January 2007; Ramos
v. CA, G.R. No. 124354, 29 December 1999.
13Professional Services v. Agana, G.R. No. 126297, 31 January 2007; Ramos
v. CA, G.R. No. 124354, 29 December 1999, citing "57B Am Jur 2d, 493
(1989)."
14 Africa v. Caltex, G.R. No. L-12986, 31 March 1966.
15 Id. citing "Espiritu vs. PhilippinePower and Development Co., C.A. G. R.
No. L-3240-R, 20 September 1949."
2. Statement of the Rule
The rule is usually stated by jurisprudence in the

following manner:
Where the thing which causes injury is shown to be

under the management of the defendant (or his
servants), and the accident is such as in the ordinary
course of things does not happen if those who have the
management (or control) used proper care, it affords
reasonable evidence, in the absence of an explanation by
the defendant, that the accident arose from (or was
16
caused by the defendants) want of care.
In ProfessionalServices v. Agana,17 the Court stated the

rule in this manner:
Where the thing which caused the injury, without the

fault of the injured, is under the exclusive control of the
defendant and the injury is such that it should not have
occurred if he, having such control used proper care, it
affords reasonable evidence, in the absence of expla-
nation that the injury arose from the defendant's want of
care, and the burden of proof is shifted to him to
18
establish that he has observed due care and diligence.
(emphasis supplied)
The statement of the rule in this case adds "without

fault of the injured" and requires that that the instru-
mentality be "under exclusive control" instead of
simply "under the management (or control)" of the
16 Tan v. JAM Transit, G.R. No. 183198, 25 November 2009, citing Ramos
v. CA; Ramos v. CA, G.R. No. 124354, 29 December 1999, citing Africa v.
Caltex, G.R. No. L-12986, 31 March 1966; Layugan v. LAC, G.R. No.
73998,14 November 1988, citing "Cooley on Torts, Vol. 3,369."
17 ProfessionalServices v. Agana, G.RI No. 126297,31 January 2007.
Is Id., citing Africa v. Caltex, G.R. No. L-12986, 31 March 1966.
defendant. However, when listing the elements, the

Court in this case indicated "control and manage-
ment" and said that this element is the "most instru-
mental."
3. Elements
Cases applying the doctrine of res ipsa loquitur would

generally enumerate three elements for the doctrine to
apply; 19
" The accident is of a kind which ordinarily does

not occur unless someone 20 is negligent;
" The accident is caused by an instrumentality
within the exclusive control 21 of the person
sought to be made liable; and
" The possibility of contributing conduct, which
would make the plaintiff responsible, is elimi-
nated.22
19 Tan v. JAM Transit,G.R. No. 183198, 25 November 2009; Cantre v. Sps.

Go, G.R. No. 160889, 27 April 2007; College Assurance v. Belfranit, G.R.
No. 155604, 22 November 2007; Ramos v. CA, G.R No. 124354, 29
December 1999 citing Voss vs. Bridwell, 364 P2d 955, 970 (1961), Lamb v.
HartfordAccident and Indemnity Co., Primm v. Kansas Power & Light Co.,
173 Kan. 443, 249 P.2d 647.
20 In ProfessionalServices v. Agana, G.R. No. 126297, 31 January 2007; the
requirement is stricter in the sense that instead of "someone" it
indicates "those who had control or management"
21 In ProfessionalServices v. Agana, id., only "control and management" is
required and not exclusive control.
22 In College Assurance v. Benfrantl, G.R. No. 155604, 22 November 2007;
the element is rendered as "the injury suffered must not have been
due to any voluntary action or contribution on the part of the person
injured."
PRESUMPT1ONS OF NEGUGENCE I 193
In Professional Services v. Agana,23 the Court included

"the absence of explanation by the defendant" as an
24
element.
The cases that cite these elements would ultimately be

based on the ruling in Ramos v. CA, which in turn cites
U.S. cases as basis.
a. The Nature of the Accident
As to the first element, the nature of the accident must

be that "in the light of ordinary experience.., gives
rise to an inference that someone must have been
negligent." 25
Res ipsa loquitur is based on the common knowledge

that the very nature of certain types of occurrences
justifies an inference of negligence on the part of the
person who controls the instrumentality causing the
injury if there is no explanation from the person
charged with negligence. 26
For instance, if the injury was caused by fire, it must

not be a spontaneous natural occurrence but the
outcome of a human act or omission.27
23Professional services v. Agana, G.R. No. 126297,31 January 2007.

24 Id.
25 PROssER AND KEETON ON TORTS (FIFTH ED.) 244 (1994).
26 Ramos v. CA, G.R. No. 124354, 29 December 1999.
27 CollegeAssurance v. Belfranlt, G.R. No. 155604, 22 November 2007.
b. Control Over the Cause
This element requires that:

the injury must .... be traced to a specific instrumentality
or cause for which the defendant was responsible. 28
Of the three requisites, control over the instru-

mentality that caused the injury is said to be the
fundamental element and that such element of control
must be shown to be within the dominion of the
defendant. 29
Most cases in this jurisdiction require that the

instrumentality causing the injury be under the
exclusive control of the person sought liable. The
exception is in the case of Professional Services v.
Agana, 30 which indicates that "control and manage-
ment" is sufficient.
Professional Services v. Agana3l is a case for medical

negligence against Professional Services, Inc., the
owner of Medical City, and Drs. Ampil and Fuentes
for the injury suffered by Natividad Agana resulting
from pieces of gauze left in her body after an
operation.
Res ipsa loquitur became an issue when the Aganas
assailed the dismissal by the trial court of the case
against Dr. Fuentes on the ground that it is contrary to
28 PROssER AND KEETON, supranote 25 at 248.

29 Ramos v. CA, G.R. No. 124354,29 December 1999.
3o ProfessionalServices v. Agana, G.R. No. 126297,31 January 2007.
31Id.
PRESUMPInONS OF NEGUGENCE I 195
the doctrine of res ipsa loquitur. According to them, the

fact that the two pieces of gauze were left inside
Natividad's body is a prima facie evidence of Dr.
Fuentes' negligence.
The Court in this case listed the requisites for the

application of res ipsa loquitur,as follows:
(1) the occurrence of an injury; (2) the thing which
caused the injury was under the control and manage-
ment of the defendant; (3) the occurrence was such that
in the ordinary course of things, would not have
happened if those who had control or management used
proper care; and (4) the absence of explanation by the
defendant. Of the foregoing requisites, the most
instrumental is the "control and management of the
thing which caused the injury." (emphasis by the Court)
The Court ruled that the element of "control and

management of the thing which caused the injury"
was wanting. It found that:
It was duly established that Dr. Ampil was the lead
surgeon during the operation of Natividad. He requested
the assistance of Dr. Fuentes only to perform hyste-
rectomy when he (Dr. Ampil) found that the malignancy
in her sigmoid area had spread to her left ovary. Dr.
Fuentes performed the surgery and thereafter reported
and showed his work to Dr. Ampil. The latter examined
it and finding everything to be in order, allowed Dr.
Fuentes to leave the operating room. Dr. Ampil then
resumed operating on Natividad. He was about to finish
the procedure when the attending nurses informed him
that two pieces of gauze were missing. A "diligent
search" was conducted, but the misplaced gauzes were
not found. Dr. Anpil then directed that the incision be
closed. During this entire period, Dr. Fuentes was no
longer in the operating room and had, in fact, left the

hospital. (emphasis supplied)
Nevertheless, even if Dr. Fuentes remained in the

operating room until the end, res ipsa loquitur would
remain inapplicable.
Under the "Captain of the Ship" rule, the operating
surgeon is the person in complete charge of the surgery
room and all personnel connected with the operation.
Their duty is to obey his orders. As stated before, Dr.
Ampil was the lead surgeon. In other words, he was the
"Captain of the Ship." That he discharged such role is
evident from his following conduct (1) calling Dr.
Fuentes to perform a hysterectomy; (2) examining the
work of Dr. Fuentes and finding it in order; (3) granting
Dr. Fuentes' permission to leave; and (4) ordering the
closure of the incision. To our mind, it was this act of
ordering the closure of the incision notwithstanding that
two pieces of gauze remained unaccounted for, that
caused injury to Natividad's body. Clearly, the control
and management of the thing which caused the injury
was in the hands of Dr. Ampil, not Dr. Fuentes.
(emphasis supplied)
c. No Contribution to the Injury from the Injured
As regards the third element, "it is not necessary that

the plaintiff be completely inactive, but merely that
there be evidence removing the inference of the
plaintiff's own responsibility.132
This element perhaps makes a medical negligence

case a prime candidate for the application of the rule33
32
PRossR AND KEETON, supra note 25 at 254.
33 This is of course provided that the issue does not involve a question
answerable by medical science which would require expert testimony.
because ordinarily, a patient is rendered incapable of

acting while under the care of a doctor.
4. Effect of Direct Evidence
The Court has held that res ipsa loquitur can only be
invoked when under the circumstances involved,
direct evidence of negligence or direct cause of the
injury is absent and not readily available. 34 It said:
Hence, it has generally been held that the presumption of
inference arising from the doctrine cannot be availed of,
or is overcome, where plaintiff has knowledge and
testifies or presents evidence as to the specific act of
negligence which is the cause of the injury complained
of or where there is direct evidence as to the precise
cause of the accident and all the facts and circumstances
attendant on the occurrence clearly appear.
Finally, once the actual cause of injury is established

beyond controversy, whether by the plaintiff or by the
defendant, no presumptions will be involved and the
doctrine becomes inapplicable when the circumstances
have been so completely elucidated that no inference of
defendant's liability can reasonably be made, whatever
the source of the evidence, as in this case.35 (emphasis
supplied)
In Layugan v. IAC, 36 Pedro Layugan and a companion

were repairing the tire of their cargo truck, which was
parked along the right side of the National Highway.
A truck owned by Godofredo Isidro and driven by
Daniel Serrano bumped Layugan. Layugan filed an
34 Layugan v. LAC, G.R. No. 73998, November 14,1988.

3 Id.
36 Id.
action for damages. The trial court ruled in favor of

Layugan but the appellate court reversed the ruling
and held that Layugan was negligent on the basis of
res ipsa loquitur. The Court had to decide whether or
not whether Layugan was indeed negligent under the
doctrine of res ipsa loquitur.
Isidro argued that Layugan must show to the

satisfaction of a reasonable mind that he and the
driver provided an early warning device, and that
absent such proof of care, under the doctrine of res
ipsa loquitur, there is a presumption of negligence on
the part of the driver of the parked cargo truck as well
as his helper, who was fixing the flat tire of the said
truck.
The Court disagreed with this.
First, the Court found that three or four meters from

the rear of the parked truck, a lighted kerosene lamp
was placed. It added:
Whether the cargo truck was parked along the road or
on half the shoulder of the right side of the road would
be of no moment taking into account the warning device
consisting of the lighted kerosene lamp placed three or
four meters from the back of the truck. But despite this
warning which we rule as sufficient, the Isuzu truck
driven by Daniel Serrano, an employee of the private
respondent, still bumped the rear of the parked cargo
truck. As a direct consequence of such accident the
petitioner sustained injuries on his left forearm and left
foot. His left leg was later amputated from below the
knee when gangrene had set in. (citation omitted)
As the absence or want of care of Daniel Serrano was

established by clear and convincing evidence, the
Court held that the appellate court was in error in
stamping its imprimatur upon the invocation by
Isidro of the doctrine of res ipsa loquitur to escape
liability for the negligence of his employee.
Thus, the Court explained that the doctrine of res ipsa

loquitur had no application in this case because the
absence or want of care of Daniel Serrano had been
established by clear and convincing evidence.
What was unusual about this case was that it was the
defendant who raised res ipsa loquitur as a defense.
Ordinarily, it is the plaintiff who invokes the doctrine
to make the defendant liable. The plaintiff uses the
doctrine because he does not have direct evidence of
negligence on the part of the defendant.
The use of the doctrine in this case notwithstanding, it

does not mean that res ipsa loquitur can only be
invoked in the complete absence of other evidence.
The Court has explained that the rule allows the

plaintiff to present enough of the attending
circumstances to invoke the doctrine, "along with the
proof of the accident. 3 7 Thus, res ipsa loquitur can be
used along with other proof.

Prosserand Keeton explains that:

the introduction of some evidence which tends to show
specific acts of negligence on the part of the defendant,
but which does not purport to furnish a full and
complete explanation of the occurrence, does not
destroy the inferences which are consistent with the
evidence, and so does not deprive the plaintiff of the
benefit of res ipsa loquitur.38
Although taken from common law, this rule appears

to be reflected in cases in this jurisdiction where the
Court chose to apply res ipsa loquitureven when there
is some evidence of negligence.
In Tan v. JAM Transit,39 a passenger-type jitney owned

by Luz Tan and driven by Alexander Ramirez
collided with a JAM Transit passenger bus driven by
Eddie Dimayuga. Tan filed a complaint for damages.
The Court said the trial court "applying the doctrine
of res ipsa loquitur" found the JAM passenger bus
driver at fault because it was violating a traffic
regulation when the collision took place. Needless to
say, the presumption resulting from a violation of a
traffic regulation simultaneous with the mishap is
different from res ipsa loquitur. Certainly, this doctrine
does not arise simply because an actor is violating a
traffic regulation at that time. But judging from the
ruling of the appellate court, the trial court's decision
appears to have been interpreted as being based on res
ipsa loquitur and not the presumption of negligence
arising from a simultaneous violation of a traffic regu-
38
PRoss AND KEETON, supra note 25 at 260.
39
Tan v. JAM Transit,G.R. No. 183198,25 November 2009.
lation. The Court's re-statement of the trial court's

ruling could also be interpreted to mean that violation
of a traffic regulation is negligence per se. However,
the brief narration by Court of the trial court's ruling
defies any definitive determination on this regard.
The appellate court reversed the trial court's ruling on

the ground that there was nothing in the record to
support the trial court's finding that the bus was
overtaking the jeepney and that there was no evidence
as to who between the two drivers was negligent. It
further said that Tan had access to direct evidence as
to the precise cause of the mishap, and the circum-
stances of the vehicular accident or the specific act
constituting the supposed negligence of Dimayuga
could have been testified to by Ramirez or by the
latter's companion. The Court said that the appellate
court concluded that res ipsa loquitur could not apply
"because the doctrine does not dispense with the
requirement of establishing proof of negligence."
Thus, the appellate court appears to have made its

decision on the basis of lack of evidence of negligence.
It also did not apply res ipsa loquitur which could have
provided a presumption of negligence. But the reason
for the non-application is not entirely clear. Certainly,
the bare restatement of the effect of the doctrine (i.e.
that it does not dispense with the requirement of
establishing proof of negligence) does not provide a
clear reason why the doctrine does not apply in this
case. Certainly, the appellate court cannot be saying
that there must be proof of negligence before a
presumption of negligence can arise because of the

application of res ipsa loquitur.
Now the Court had to deal squarely with the issue

whether res ipsa loquitur applied in this case.
The Court ruled that res ipsa loquitur applied in this

case because all the requisites have been complied
with.
The Court did not agree with the appellate court that
Tan had direct access to the evidence surrounding the
accident, and that because she failed to present it, the
doctrine would not apply. The Court found that while
Ramirez took the witness stand, he was only able to
testify that he drove Tan's passenger jitney loaded
with salted eggs, balot and quail eggs for delivery at
around 5:00 a.m. when he met an accident, causing
the vehicle to turn turtle. The Court added:
Obviously, Ramirez had no vivid recollection of how the
passenger jitney was actually hit by the JAM passenger
bus. Further, for some unknown reasons, the other
possible eyewitnesses to the mishap were not available
to testify. With the dearth of testimonial or direct
evidence, should petitioner now be left without remedy?
The answer is NO.
The Court seems to be saying that there was no direct

evidence presented on the cause of the accident. There
was testimonial evidence, but it did not provide
information on the cause of the accident.
The Court also said that it did not agree with the
appellate court when it said that "how the incident
PRESUMPTONS OF NEGUGENCE I 203
happened could not be established" from the photo-

graphs offered in evidence in favor of Tan, or from the
Certification that quoted an excerpt from the records
on the Police Blotter of the Calauan Municipal Police
Station. The Court went on to explain the value of the
photographs and the police blotter.
Therefore, the Court said that there was no direct

evidence of negligence but the evidence presented can
establish "how the incident happened."
Using the evidence presented the Court held that:

Indeed, no two motor vehicles traversing the same lane
of a highway with double yellow center lines will collide
as a matter of course, both ending up on the opposite
lane, unless someone is negligent Dimayuga was
driving the JAM passenger bus which, from the evidence
adduced, appears to have precipitated the collision with
petitioner's jitney. Driving the bus gave Dimayuga
exclusive management and control over it. Despite the
claim of JAM to the contrary, no contributory negligence
could be attributed to Ramirez relative to the incident on
the basis of the available evidence. Inevitably, the
requisites being present, the doctrine of res ipsa loquitur
applies.
Thus, the Court used the evidence presented to

determine that the requisites of res ipsa loquitur were
present.
The Court added however:

Verily, although there was no direct evidence that the
JAM passenger bus was overtaking the vehicles running
along the right lane of the highway from the left lane, the
available evidence readily points to such fact. There were
two continuous yellow lines at the center of the highway,

which meant that no vehicle in the said area should
overtake another on either side of the road. The "double
yellow center lines" regulation, which this Court takes
judicial notice of as an internationally recognized pave-
ment regulation, was precisely intended to avoid
accidents along highways, such as what happened in this
case. This prohibition finds support in Republic Act
(R.A.) No. 4136 (Land Transportation and Traffic Code),
Section 41(e). Furthermore, it is observed that the area of
collision was an intersection. Section 41(c) of R.A. No.
4136, likewise, prohibits overtaking or passing any other
vehicle proceeding in the same direction at any
intersection of highways, among others. Thus, by
overtaking on the left lane, Dimayuga was not only
violating the "double yellow center lines" regulation,
but also the prohibition on overtaking at highway
intersections. Consequently, negligence can be attri-
buted only to him, which negligence was the proximate
cause of the injury sustained by petitioner. This prima
facie finding of negligence was not sufficiently rebutted
or contradicted by Dimayuga. Therefore, a finding that
he is liable for damages to petitioner is warranted.
(emphasis supplied)
The Court's reasoning here echoes its narration of

how the trial court arrived at its ruling. However, it is
not clear if the Court is considering that if the
violation of a traffic regulation is negligence per se or
merely raises a presumption of negligence under
Article 2185.
In College Assurance v. Belfranlt,4° Belfranlt Develop-

ment, Inc. ("BDI") was the owner of Belfranlt Building
in Angeles City, Pampanga. It leased to College
4
o CollegeAssurance v. Belfranlt, G.R No. 155604, 22 November 2007.
Assurance Plan Phil., and Comprehensive Annuity

Plans and Pension Corporation ("Petitioners") several
units on the second and third floors of the building.
Fire destroyed portions of the building, including the
third floor units being occupied by Petitioners. A field
investigation report by an unnamed arson investi-
gator assigned to the case disclosed:
0.5 Origin of Fire: Store room occupied by CAP, located
at the 3rd floor of the bldg.
0.6 Cause of Fire: Accidental (overheated coffee perco-
lator).
These findings were reiterated in the certification,

which the BFP City Fire Marshal, Insp. issued to
Petitioners as a supporting document for the latter's
insurance claim. BDI sent to Petitioners a notice to
vacate the leased premises to make way for repairs
and to pay reparation estimated at P1.5 million.
Petitioners vacated the leased premises, including the
units on the second floor, but they did not act on the
demand for reparation. After succeeding demands
went unheeded, BDI filed a complaint for damages.
The trial court ruled in favor of BDI. The appellate
court affirmed the liability of Petitioners.
In connection with res ipsa loquitur, the Court ruled

that even without the testimony of Fireman Sitchon
and the documents he prepared, the finding of the
lower courts on the negligence of Petitioners could not
be overturned by bare denial. It said:
The CA correctly applied the doctrine of res ipsa loquitur
under which expert testimony may be dispensed with to
sustain an allegation of negligence if the following
requisites obtain: a) the accident is of a kind which does

not ordinarily occur unless someone is negligent; b) the
cause of the injury was under the exclusive control of the
person in charge and c) the injury suffered must not have
been due to any voluntary action or contribution on the
part of the person injured. (citation omitted)
The Court noted that the fire that damaged BelfranIt

Building was not a spontaneous natural occurrence
but the outcome of a human act or omission. It
originated in the storeroom which CAP had
possession and control of and BDI had no hand in the
incident. It said:
Hence, the convergence of these facts and circumstances

speaks for itself: petitioners alone having knowledge of
the cause of the fire or the best opportunity to ascertain
it, and respondent having no means to find out for itself,
it is sufficient for the latter to merely allege that the cause
of the fire was the negligence of the former and to rely on
the occurrence of the fire as proof of such negligence. It
was all up to petitioners to dispel such inference of
negligence, but their bare denial only left the matter
unanswered. (citation omitted)
Thus, the Court applied the doctrine of res ipsa loquitur

in this case, even if there were documents emanating
from the Bureau of Fire Protection that were
presented as evidence as to the cause of the fire.
5. Nature of the Rule
The Court has explained that res ipsa loquitur is in the

nature of a procedural rule,41 a rule of evidence and
41
Ramos v. CA, G.R. No. 124354,29 December 1999.
PRESUMMONS OF NEGUGENCE I 207
not a rule of substantive lawn and therefore does not

create or constitute an independent or separate
ground of liability.43
It is merely a mode of proof or a mere procedural

convenience.44
It is a rule peculiar to the law of negligence that

recognizes that prima facie negligence may be
established without direct proof and furnishes a
substitute for specific proof of negligence 45 and
relieves a plaintiff of the burden of producing specific
proof of negligence. 46
6. Effect of the Rule
Res ipsa loquitur does not dispense with the

requirement of proof of culpable negligence on the
part of the party charged. 47 The rule merely deter-
mines and regulates what shall be primafacie evidence
and facilitates the burden of plaintiff of proving a
breach of the duty of due care.48
The rule does not dispense with the requirement of

proof of negligence but is simply a step in the process
of such proof.49
42
Layugan v. LAC, G.R. No. 73998,14 November 1988.
44
Ramos v. CA, G.R. No. 124354,29 December 1999; Layugan v. LAC, G.R.
No. 73998,14 November 1988.
45 Id.
46
Rmnos v. CA, G.R. No. 124354,29 December 1999.
47
Layugan v. LAC, G.R. No. 73998,14 November 1988.
48Id.
49
Ramos v. CA, G.R No. 124354,29 December 1999.
208 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASi-DELICTS
The rule "furnishes a bridge by which a plaintiff,
without knowledge of the cause, reaches over to
defendant who knows or should know the cause, for
any explanation of care exercised by the defendant in
respect of the matter of which the plaintiff
complains."50
Therefore, the effect of res ipsa loquitur is to create a

presumption of negligence on the part of the
defendant. The application of the rule requires the
defendant to overcome this presumption of
negligence.
However, the Court applied res ipsa loquitur in one

case to allow the testimony of a non-expert. In Ramos
v. CA, 5' Prof. Herminda Cruz, Dean of the Capitol
Medical Center School of Nursing, who was in the
operating room, testified on what happened during
intubation of the patient. The appellate court did not
consider her competent to testify because being a
nurse, she was considered a layman in the process of
intubation. The Court disagreed. It explained that
although she was not an anesthesiologist, she could
very well testify upon matters on which she was
capable of observing. It added:
This is precisely allowed under the doctrine of res ipsa
loquitur where the testimony of expert witnesses is not
required. It is the accepted rule that expert testimony is
not necessary for the proof of negligence in non-technical
matters or those of which an ordinary person may be
expected to have knowledge, or where the lack of skill or
50 DM Consunjiv. CA, G.R No. 137873,20 April 2001.

51Ramos v. CA, G.R. No. 124354,29 December 1999.
want of care is so obvious as to render expert testimony

unnecessary.5 2
7. Justification for the Rule
Jurisprudence provides at least two reasons to justify

this doctrine.
The first justification is the doctrine of common

knowledge 3 or the nature of occurrences. It is argued
that there are certain occurrences that, based on com-
mon knowledge, will not occur without negligence.
The second justification is the fact that the person in

charge of instrumentality ordinarily knows the cause
of the injury.
In DM Consunji v. CA,4 Jose Juego, a construction

worker of D.M. Consunji, Inc., fell from the 14th floor
of the Renaissance Tower. According to the police
report, Juego, together with two others, were per-
forming their work as carpenters at the elevator core
of the 14th floor of Tower D, Renaissance Tower Build-
ing on board a platform made of channel beam with
pinulid plywood flooring and cable wires attached to
its four comers and hooked at the five ton chain block,
when suddenly, the bolt or pin which was merely
inserted to connect the chain block with the platform,
got loose, causing the whole platform assembly and
the victim to fall down to the basement of the elevator
core thereby crushing the victim to death. Juego's
52 Id.
53 Id.
4 DM Consunji v. CA, G.R. No. 137873,20 April 2001.
widow filed a complaint for damages. The trial court

ruled in her favor and the appellate court affirmed the
ruling.
Res ipsa loquitur became an issue in relation to DM

Consunji's objection to P03 Villanueva's testimony.
What DM Consunji took particular exception to was
P03 Villanueva's testimony that the cause of the fall
of the platform was the loosening of the bolt from the
chain block. DM Consunji claimed that such portion
of the testimony was mere opinion and that subject to
certain exceptions, the opinion of a witness is
generally not admissible.
The Court explained, however, that this contention

loses relevance in the face of the application of res ipsa
loquitur by the appellate court. It said:
The effect of the doctrine is to warrant a presumption or
inference that the mere fall of the elevator was a result of
the person having charge of the instrumentality was
negligent.
The Court explained what the doctrine is:

As a rule of evidence, the doctrine of res ipsa loquitur is
peculiar to the law of negligence which recognizes that
prima facie negligence may be established without direct
proof and furnishes a substitute for specific proof of
negligence.
Quoting American Jurisprudence:

While negligence is not ordinarily inferred or presumed,
and while the mere happening of an accident or injury
will not generally give rise to an inference or pre-
sumption that it was due to negligence on defendant's

part, under the doctrine of res ipsa loquitur,which means,
literally, the thing or transaction speaks for itself, or in
one jurisdiction, that the thing or instrumentality speaks
for itself, the facts or circumstances accompanying an
injury may be such as to raise a presumption, or at least
permit an inference of negligence on the part of the
defendant, or some other person who is charged with
negligence.
... where it is shown that the thing or instrumentality

which caused the injury complained of was under the
control or management of the defendant, and that the
occurrence resulting in the injury was such as in the
ordinary course of things would not happen if those who
had its control or management used proper care, there is
sufficient evidence, or, as sometimes stated, reasonable
evidence, in the absence of explanation by the defendant,
that the injury arose from or was caused by the
defendant's want of care.w
The Court further explained that one of the theoretical

bases for the doctrine is its necessity, i.e., that
necessary evidence is absent or not available.
The res ipsa loquitur doctrine is based in part upon the

theory that the defendant in charge of the instru-
mentality which causes the injury either knows the cause
of the accident or has the best opportunity of ascertain-
ing it and that the plaintiff has no such knowledge, and
therefore is compelled to allege negligence in general
terms and to rely upon the proof of the happening of the
accident in order to establish negligence. The inference
which the doctrine permits is grounded upon the fact
that the chief evidence of the true cause, whether
W DM Consunji v. CA, G.R. No. 137873, 20 April 2001, citing "57B Am Jur
2d, Negligence §1819."
culpable or innocent, is practically accessible to the

defendant but inaccessible to the injured person.
It has been said that the doctrine of res ipsa loquitur

furnishes a bridge by which a plaintiff, without know-
ledge of the cause, reaches over to defendant who knows
or should know the cause, for any explanation of care
exercised by the defendant in respect of the matter of
which the plaintiff complains. The res ipsa loquitur
doctrine, another court has said, is a rule of necessity, in
that it proceeds on the theory that under the peculiar
circumstances in which the doctrine is applicable, it is
within the power of the defendant to show that there
was no negligence on his part, and direct proof of
defendant's negligence is beyond plaintiff's power.
Accordingly, some courts add to the three prerequisites
for the application of the res ipsa loquitur doctrine the
further requirement that for the res ipsa loquitur
doctrine to apply, it must appear that the injured party
had no knowledge or means of knowledge as to the
cause of the accident, or that the party to be charged with
negligence has superior knowledge or opportunity for
explanation of the accident.
8. Res Ipsa Loquiturversus Expert Testimony in

Medical Negligence Cases
In medical negligence cases, the Court has ruled that

expert testimony is essential to establish not only the
standard of care of the profession but also that the
physician's conduct in the treatment and care falls
below such standard.56 In addition, because the causes
of the injuries involved in malpractice actions are
determinable only in the light of scientific knowledge,
56
Cruz v. CA, G.R. No. 122445,18 November 1997.
it has been recognized that expert testimony is usually

necessary to support the conclusion as to causation.5 7
In Cruz v. CA,5 8 Dr. Ninevetch Cruz was charged with

a medical malpractice suit as a criminal case under
Article 365 of the Revised Penal Code. The trial courts
and the appellate court found her guilty of the crime
of reckless imprudence resulting in homicide.
The Court, however, acquitted her of the crime.
Essentially, the acquittal was based on the absence of

expert testimony regarding (i) the standard of care
required, (ii) that the doctor did not apply the
standard of care, and (iii) the cause of the injury. The
Court explained:
[The doctor] has a duty to use at least the same level of
care that any other reasonably competent doctor would
use to treat a condition under the same circumstances. It
is in this aspect of medical malpractice that expert
testimony is essential to establish not only the standard
of care of the profession but also that the physician's
conduct in the treatment and care falls below such
standard. Further, inasmuch as the causes of the injuries
involved in malpractice actions are determinable only in
the light of scientific knowledge, it has been recognized
that expert testimony is usually necessary to support the
conclusion as to causation. (citations omitted)
The Court noted the absence of expert testimony on

the matter of the standard of care employed by other
physicians of good standing in the conduct of similar
57d.
58Id.
214 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QuAsI-DEUCTS
operations. It found that the prosecution's expert

witnesses from the National Bureau of Investigation
only testified as to the possible cause of death but did
not testify on the matter of the standard of care that
Cruz should have exercised.
The Court noted that the lower courts pointed out the
following circumstances, which constitute reckless
imprudence:
* the inadequacy of the facilities of the clinic and

its untidiness;
" the lack of provisions such as blood, oxygen,
and certain medicines;
" the failure to subject the patient to a cardio-
pulmonary test prior to the operation;
* the omission of any form of blood typing
before transfusion; and
* the subsequent transfer of Lydia to the San
Pablo Hospital and the reoperation performed
on her by the Cruz.
But the Court said that whether or not there was

reckless imprudence was a conclusion best arrived at
by the unquestionable knowledge of expert witnesses,
not through the educated surmises nor conjectures of
laymen, including judges. It added:
For whether a physician or surgeon has exercised the
requisite degree of skill and care in the treatment of his
patient is, in the generality of cases, a matter of expert
opinion. The deference of courts to the expert opinion of
qualified physicians stems from its realization that the
latter possess unusual technical skills which laymen in
most instances are incapable of intelligently evaluating.
Expert testimony should have been offered to prove that
the circumstances cited by the courts below are consti-
tutive of conduct falling below the standard of care
employed by other physicians in good standing when
performing the same operation. It must be remembered
that when the qualifications of a physician are admitted,
as in the instant case, there is an inevitable presumption
that in proper cases he takes the necessary precaution
and employs the best of his knowledge and skill in
attending to his clients, unless the contrary is sufficiently
established. This presumption is rebuttable by expert
opinion which is so sadly lacking in the case at bench.
(citations omitted)
The Court also argued that even if the inadequacy of

the facilities and untidiness of the clinic and the other
circumstances identified by the lower courts do
indicate, even without expert testimony, that Cruz
was recklessly imprudent in the exercise of her duties
as a surgeon, there was no cogent proof that any of
these circumstances caused Umali's death. Therefore,
the fourth element of reckless imprudence, that the
injury to the person or property was a consequence of
the reckless imprudence, was absent.
In Cayao-Lasam v. Spouses Ramolete,5 9 Editha Ramolete,

three months pregnant, was brought to the Lorma
Medical Center ("LMC") in San Fernando, La Union
due to vaginal bleeding. Upon advice of Dr. Fe Cayao-
Lasam relayed via telephone, Editha was admitted to
the LMC on the same day. A pelvic sonogram was
then conducted on Editha, revealing the fetus' weak
cardiac pulsation. The following day, Editha's repeat
5
9Cayao-Lasamv. Spouses Ramolete, G.R. No. 159132,18 December 2008.
216 IANA.YSIS OF PHIUPPINE LAW AND JURSPRUDENCE ON TORTS AND QUASi-DELICTS
pelvic sonogram showed that aside from the fetus'
weak cardiac pulsation, no fetal movement was also
appreciated. Due to persistent and profuse vaginal
bleeding, Cayao-Lasam advised Editha to undergo a
Dilatation and Curettage Procedure ("D&C") or
"raspa." Cayao-Lasam performed the D&C procedure.
Editha was discharged from the hospital the following
day. Later, Editha was once again brought to the LMC
because she was suffering from vomiting. Editha was
attended by Dr. Beatriz de la Cruz, Dr. Victor Mayo
and Dr. Juan Komiya. Mayo allegedly informed
Editha that there was a dead fetus in the latter's
womb. Afterwards, Editha underwent laparotomy
and she was found to have a massive intra-abdominal
hemorrhage and a ruptured uterus. Thus, Editha had
to undergo a procedure for hysterectomy and as a
result, she could no longer bear a child. Editha and
her husband Claro filed a complaint against Cayao-
Lasam before the Professional Regulations Com-
mission ("PRC"). The Board of Medicine ("Board") of
the PRC rendered a decision, exonerating Cayao-
Lasam from the charges filed against her. PRC
rendered a decision reversing the findings of the
Board and revoked Cayao-Lasam's authority or
license to practice her profession as a physician.
Before the Court, Cayao-Lasam questioned the PRC

decision for being without an expert testimony to
support its conclusion and to establish the cause of
Editha's injury. She averred that in cases of medical
malpractice, expert testimony is necessary to support
the conclusion as to the cause of the injury.
PRESUMPTIONS OF NEGUGENCE. I 217
The Court explained that
Medical malpractice is a particular form of negligence
which consists in the failure of a physician or surgeon
to apply to his practice of medicine that degree of care
and skill which is ordinarily employed by the pro-
fession generally, under similar conditions, and in like
surrounding circumstances. In order to successfully
pursue such a claim, a patient must prove that the
physician or surgeon either failed to do something which
a reasonably prudent physician or surgeon would not
have done, and that the failure or action caused injury to
the patient. (emphasis supplied)
The Court found that a physician-patient relationship

was created when Editha employed the services of the
petitioner. As Editha's physician, Cayao-Lasam was
duty-bound to use at least the same level of care that
any reasonably competent doctor would use to treat a
condition under the same circumstances. It added:
The breach of these professional duties of skill and care,

or their improper performance by a physician surgeon,
whereby the patient is injured in body or in health,
constitutes actionable malpractice. As to this aspect of
medical malpractice, the determination of the reason-
able level of care and the breach thereof, expert testi-
mony is essential. Further, inasmuch as the causes of the
injuries involved in malpractice actions are determinable
only in the light of scientific knowledge, it has been
recognized that expert testimony is usually necessary to
support the conclusion as to causation. (citations
The Court found that the spouses Ramolete did not

present any expert testimony to support their claim
that Cayao-Lasam failed to do something which a
218 1-ANALYSIs oF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUAsI-DEUCTS
reasonably prudent physician or surgeon would have

done. Cayao-Lasam on the other hand, presented the
testimony of Dr. Augusto Manalo, who was clearly an
expert on the subject. According to Dr. Manalo, the
D&C procedure was not the proximate cause of the
rupture of Editha's uterus resulting in her hyste-
rectomy. Dr. Manalo's testimony also showed that the
D&C procedure was conducted in accordance with
the standard practice, with the same level of care that
any reasonably competent doctor would use to treat a
condition under the same circumstances, and that
there was nothing irregular in the way the Cayao-
Lasam dealt with Editha.
In addition, the Court found that the proximate cause

of the injury was caused by Editha herself. It
explained:
It is undisputed that Editha did not return for a follow-
up evaluation, in defiance of the petitioner's advise.
Editha omitted the diligence required by the circums-
tances which could have avoided the injury. The
omission in not returning for a follow-up evaluation
played a substantial part in bringing about Editha's
own injury. Had Editha returned, petitioner could have
conducted the proper medical tests and procedure
necessary to determine Editha's health condition and
applied the corresponding treatment which could have
prevented the rupture of Editha's uterus. The D&C
procedure having been conducted in accordance with the
standard medical practice, it is clear that Editha's
omission was the proximate cause of her own injury
and not merely a contributory negligence on her part.
PRESUMPTIONS OF NEGUGENCE 1 219
In Lucas v. Dr. Tuano,60 Peter Lucas ("Peter") contract-

ed "sore eyes" in his right eye and was referred to Dr.
Prospero Tuafio, an ophthalmologist at St. Luke's
Medical Center. Tuafio diagnosed that Peter was
suffering from conjunctivitis or "sore eyes." Tuafio
then prescribed Spersacet-C eye drops for Peter and
told the latter to return for follow-up after one week.
Because the eye developed Epidemic Kerato
Conjunctivitis ("EKC"), a viral infection, Tuafio pres-
cribed a steroid-based eye drop called Maxitrol. Later,
when Maxitrol was out of stock, Tuafio told him to
take Blephamide, another steroid-based medication.
Peter returned to Tuafio's clinic, reportedly feeling
worse. Thus, Tuafio instructed Peter to resume the use
of Maxitrol. Later, Peter had no vision in his right eye.
Tuafio ordered him to immediately discontinue the
use of Maxitrol and prescribed Diamox and Normo-
glaucon instead. Peter went to see another ophthal-
mologist, Dr. Ramon Batungbacal, who allegedly
conducted a complete ophthalmological examination
of Peter's eyes. Batungbacal's diagnosis was Glau-
coma. He recommended Laser Trabeculoplasty for
Peter's right eye. When Peter returned to Tuafio, he
advised Peter to resume taking Diamox, along with
Normoglaucon. During the Christmas holidays, Peter
supposedly stayed in bed most of the time and was
not able to celebrate the season with his family
because of the debilitating effects of Diamox. Tuafio
was at a loss as to how to balance the treatment of
Peter's EKC vis-&-vis the presence of glaucoma in the
same eye. Tuafio thus referred Peter to Dr. Manuel
60 Lucas v. Dr. Tuano, G.R. No. 178763,21 April 2009.

220 1 ANALYSIS OF PHUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUA$1-DELICTS
Agulto, another ophthalmologist specializing in the

treatment of glaucoma. Dr. Tuafto's letter of referral to
Dr. Agulto stated that Peter Lucas had sustained
significant glaucoma damage. Dr. Tuafio still gave
him a prescription for Timolol B.I.D. so Peter could
immediately start using said medication. Regrettably,
Timolol B.I.D. was out of stock, so Tuafho instructed
Peter to just continue using Diamox and Normo-
glaucon in the meantime.
Claiming to have steroid-induced glaucoma and

blaming Tuafto for the same, Peter instituted a civil
complaint for damages against Tuafio. The trial court
dismissed the complaint for insufficiency of evidence,
reasoning that the "recognized standards of the
medical community" had not been established. The
appellate court affirmed the ruling.
In this case, the Court explained that expert testimony

is required in medical cases for a number of reasons.
The first is in order to establish the standard of care:

[the] standard level of care, skill and diligence is a matter
best addressed by expert medical testimony, because the
standard of care in a medical malpractice case is a matter
peculiarly within the knowledge of experts in the field.
The second is to prove breach of his duty:

Proof of such breach must likewise rest upon the
testimony of an expert witness that the treatment
accorded to the patient failed to meet the standard level
of care, skill and diligence which physicians in the same
general neighborhood and in the same general line of
practice ordinarily possess and exercise in like cases.
PRESUMPTIONS OF NEGUGENCE 1 221
The third purpose of expert testimony is to prove

proximate causation:
in order to establish the proximate cause [of the injury]
by a preponderance of the evidence in a medical mal-
practice action, [the patient] must similarly use expert
testimony, because the question of whether the alleged
professional negligence caused [the patient's] injury is
generally one for specialized expert knowledge beyond
the ken of the average layperson; using the specialized
knowledge and training of his field, the expert's role is to
present to the [court] a realistic assessment of the
likelihood that [the physician's] alleged negligence
caused [the patient's] injury. (citations omitted)
Thus, the Court concluded that:

From the foregoing, it is apparent that medical negli-
gence cases are best proved by opinions of expert
witnesses belonging in the same general neighborhood
and in the same general line of practice as defendant
physician or surgeon. The deference of courts to the
expert opinion of qualified physicians [or surgeons]
stems from the former's realization that the latter possess
unusual technical skills which laymen in most instances
are incapable of intelligently evaluating; hence, the
indispensability of expeit testimonies. (citations omitted,
emphasis supplied)
In this case, the Court found that there was absolute

failure to present any expert testimony to establish: (1)
the standard of care to be implemented by competent
physicians in treating the same condition as Peter's
under similar circumstances; (2) that, in his treatment
of Peter, Tuafio failed in his duty to exercise said
standard of care that any other competent physician
would use in treating the same condition as Peter's
under similar circumstances; and (3) that the injury or

damage to Peter's right eye, i.e., his glaucoma, was
the result of his use of Maxitrol, as prescribed by
Tuafio.
The Court added that:

Even if we are to assume that Dr. Tuaflo committed
negligent acts in his treatment of Peter's condition, the
causal connection between Dr. Tuafio's supposed negli-
gence and Peter's injury still needed to be established.
The critical and clinching factor in a medical negli-
gence case is proof of the causal connection between
the negligence which the evidence established and the
plaintiff's injuries.
The plaintiff must plead and prove not only that he has
been injured and defendant has been at fault, but also
that the defendant's fault caused the injury. A verdict in
a malpractice action cannot be based on speculation or
conjecture. Causation must be proven within a reason-
able medical probability based upon competent expert
testimony. (emphasis supplied)
The foregoing cases demonstrate the need for expert

testimony in medical negligence cases. Yet, the Court
has also ruled that "when the doctrine of res ipsa
loquitur is availed by the plaintiff, the need for expert
medical testimony is dispensed with because the
injury itself provides the proof of negligence." 61
In Ramos v. CA, 62 Dr. Orlino Hosaka decided that Er-

linda Ramos should undergo a "cholecystectomy"
operation. On the day of the operation, Hosaka
61
Ramos v. CA, G.R. No. 124354,29 December 1999.
62 Id.
arrived more than three hours late. Herminda Cruz,

Erlinda's sister, was allowed to stay in the operating
room. Dr. Perfecta Gutierrez had problems intubating
the patient, whose nail bed became bluish. Dr. Hosaka
called another anesthesiologist, Dr. Calderon, who
tried to intubate the patient. The patient was placed in
a trendelenburg position-a position where the head
of the patient is placed in a position lower than her
feet, which is an indication that there is a decrease of
blood supply to the patient's brain. Dr. Calderon was
later able to intubate the patient. Meanwhile, Rogelio,
Erlinda's husband, saw a respiratory machine being
rushed towards the door of the operating room. He
also saw several doctors rushing towards the ope-
rating room. Erlinda was taken to the Intensive Care
Unit ("ICU"). The doctors explained that the patient
had bronchospasm. Erlinda stayed at the ICU for a
month and about four months thereafter, the patient
was released from the hospital. But she had been in a
comatose condition from the day of the operation.
The Ramoses filed a civil action for damages against

Delos Santos Medical Center, Hosaka and Gutierrez.
The trial court ruled in favor of the Ramoses but the
appellate court reversed the ruling.
The Court ruled that the damage sustained by Erlinda

in her brain prior to a scheduled gall bladder ope-
ration presented a case for the application of res ipsa
loquitur.
The Court explained that medical malpractice 63 cases

do not escape the application of res ipsa loquitur.
Thus, res ipsa loquitur has been applied when the
circumstances attendant upon the harm are themselves
of such a character as to justify an inference of
negligence as the cause of that harm. The application of
res ipsa loquitur in medical negligence cases presents a
question of law since it is a judicial function to
determine whether a certain set of circumstances does, as
a matter of law, permit a given inference. (citations
It then reconciled the application of the doctrine and

the necessity for expert testimony.
Although generally, expert medical testimony is relied
upon in malpractice suits to prove that a physician has
done a negligent act or that he has deviated from the
standard medical procedure, when the doctrine of res
ipsa loquitur is availed by the plaintiff, the need for
expert medical testimony is dispensed with because the
injury itself provides the proof of negligence. The
reason is that the general rule on the necessity of expert
testimony applies only to such matters clearly within
the domain of medical science, and not to matters that
are within the common knowledge of mankind which
may be testified to by anyone familiar with the facts.
Ordinarily, only physicians and surgeons of skill and
experience are competent to testify as to whether a
patient has been treated or operated upon with a
reasonable degree of skill and care. However, testimony
as to the statements and acts of physicians and sur-
geons, external appearances, and manifest conditions
63 Inthis case, "medical malpractice" was defined by the Court as "the

type of claim which a victim has available to him or her to redress a
wrong committed by a medical professional which has caused bodily
harm."
which are observable by any one may be given by non-

expert witnesses. Hence, in cases where the res ipsa
loquitur is applicable, the court is permitted to find a
physician negligent upon proper proof of injury to the
patient, without the aid of expert testimony, where the
court from its fund of common knowledge can deter-
mine the proper standard of care. Where common
knowledge and experience teach that a resulting injury
would not have occurred to the patient if due care had
been exercised, an inference of negligence may be drawn
giving rise to an application of the doctrine of res ipsa
loquitur without medical evidence, which is ordinarily
required to show not only what occurred but how and
why it occurred. When the doctrine is appropriate, all
that the patient must do is prove a nexus between the
particular act or omission complained of and the injury
sustained while under the custody and management of
the defendant without need to produce expert medical
testimony to establish the standard of care. Resort to res
ipsa loquitur is allowed because there is no other way,
under usual and ordinary conditions, by which the
patient can obtain redress for injury suffered by him.
It clarified that the doctrine cannot apply in all cases.
Nevertheless, despite the fact that the scope of res ipsa

loquitur has been measurably enlarged, it does not
automatically apply to all cases of medical negligence
as to mechanically shift the burden of proof to the
defendant to show that he is not guilty of the ascribed
negligence. Res ipsa loquitur is not a rigid or ordinary
doctrine to be perfunctorily used but a rule to be
cautiously applied, depending upon the circumstances
of each case. It is generally restricted to situations in
malpractice cases where a layman is able to say, as a
matter of common knowledge and observation, that the
consequences of professional care were not as such as
would ordinarily have followed if due care had been
exercised. A distinction must be made between the
failure to secure results, and the occurrence of some-

thing more unusual and not ordinarily found if the
service or treatment rendered followed the usual
procedure of those skilled in that particular practice. It
must be conceded that the doctrine of res ipsa loquiturcan
have no application in a suit against a physician or
surgeon which involves the merits of a diagnosis or of
a scientific treatment. The physician or surgeon is not
required at his peril to explain why any particular
diagnosis was not correct, or why any particular
scientific treatment did not produce the desired result.
Thus, res ipsa loquituris not available in a malpractice suit
if the only showing is that the desired result of an
operation or treatment was not accomplished. The real
question, therefore, is whether or not in the process of
the operation any extraordinary incident or unusual
event outside of the routine performance occurred
which is beyond the regular scope of customary pro-
fessional activity in such operations, which, if un-
explained would themselves reasonably speak to the
average man as the negligent cause or causes of the
untoward consequence. If there was such extraneous
interventions, the doctrine of res ipsa loquitur may be
utilized and the defendant is called upon to explain the
matter, by evidence of exculpation, if he could. (citations
It also gave examples of cases where the doctrine was

applied, such as:
leaving of a foreign object in the body of the patient after

an operation, injuries sustained on a healthy part of the
body which was not under, or in the area, of treatment,
removal of the wrong part of the body when another
part was intended, knocking out a tooth while a patient's
jaw was under anesthetic for the removal of his tonsils,
and loss of an eye while the patient plaintiff was under
the influence of anesthetic, during or following an
operation for appendicitis, among others. (citations
omitted)
The Court found the case strikingly similar to Voss vs.

Bridwell,64 where the Kansas Supreme Court, in apply-
ing the res ipsa loquitur,stated:
The plaintiff herein submitted himself for a mastoid
operation and delivered his person over to the care,
custody and control of his physician who had complete
and exclusive control over him but the operation was
never performed. At the time of submission he was
neurologically sound and physically fit in mind and
body, but he suffered irreparable damage and injury
rendering him decerebrate and totally incapacitated. The
injury was one which does not ordinarily occur in the
process of a mastoid operation or in the absence of
negligence in the administration of an anesthetic and in
the use and employment of an endoctracheal tube.
Ordinarily a person being put under anesthesia is not
rendered decerebrate as a consequence of adminis-
tering such anesthesia in the absence of negligence.
Upon these facts and under these circumstances a-lay-

man would be able to say, as a matter of common know-
ledge and observation, that the consequences of pro-
fessional treatment were not as such as would ordinarily
have followed if due care had been exercised.
Here the plaintiff could not have been guilty of contri-

butory negligence because he was under the influence of
anesthetics and unconscious, and the circumstances are
such that the true explanation of event is more accessible
to the defendants than to the plaintiff for they had the
exclusive control of the instrumentalities of anesthesia.6
(emphasis supplied)
(A Cited in the case as "Voss vs. Bridwell, 364 P2d 955,970 (1961)."
5Id.
The Court ruled that the principles enunciated in the

said case apply with equal force.
Based on Voss v. Bridwell, res ipsa loquitur applies if:
" The plaintiff submitted himself for the ope-

rations and delivered his person over to the
care, custody and control of his physician
" The physician had complete and exclusive con-
trol over him
" The operation was never performed
" At the time of submission, he was neuro-
logically sound and physically fit in mind and
body, but he suffered irreparable damage and
injury rendering him decerebrate and totally
incapacitated.
" The injury was one which does not ordinarily
occur in the process of the operation or in the
absence of.negligence.
In this case, Erlinda submitted herself for cholecys-

tectomy and expected a routine general surgery to be
performed on her gall bladder. She delivered her
person over to the care, custody and control of private
respondents, who exercised complete and exclusive
control over her. At the time of submission, Erlinda
was neurologically sound and, except for a few minor
discomforts, was likewise physically fit in mind and
body. However, during the administration of anes-
thesia and prior to the performance of cholecys-
tectomy, she suffered irreparable damage to her brain.
Thus, without undergoing surgery, she went out of
PRESUMPTIONS OF NEGUGEN 229
the operating room already decerebrate and totally

incapacitated.

Brain damage, which Erlinda sustained, is an jury
which does not normally occur in the process of a gall
bladder operation. In fact, this kind of situation does not
happen in the absence of negligence of someone in the
administration of anesthesia and in the use of endo-
tracheal tube. Normally, a person being put under anes-
thesia is not rendered decerebrate as a consequence of
administering such anesthesia if the proper procedure
was followed. (emphasis supplied)
The Court also found that the instruments used in the

administration of anesthesia, including the endo-
tracheal tube, were all under the exclusive control of
private respondents, who were the physicians-in-
charge.
Likewise, Erlinda could not have been guilty of

contributory negligence because she was under the
influence of anesthetics, which rendered her
unconscious.
Thus, the Court found that all the elements for the
application of the res ipsa loquitur doctrine were
present. It said:
Considering that a sound and unaffected member of the
body (the brain) is injured or destroyed while the patient
is unconscious and under the immediate and exclusive
control of the physicians, we hold that a practical admi-
nistration of justice dictates the application of res ipsa
lqitur.Upon these facts and under these circumstances
the Court would be able to say, as a matter of common
230 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QuASI-DEUcTS
knowledge and observation, if negligence attended the

management and care of the patient. (emphasis
supplied)
The Court implied that expert testimony was not

required in this case because "the liability of the
physicians and the hospital in this case is not
predicated upon an alleged failure to secure the
desired results of an operation nor on an alleged lack
of skill in the diagnosis or treatment as in fact no
operation or treatment was ever performed on
Erlinda."
In this case, the Court applied the doctrine of res ipsa

loquitur in evaluating the competence of the nurse to
testify on what happened during the intubation
process. The Court explained that the appellate court
was trying to impress that being a nurse, and
considered a layman in the process of intubation,
Cruz was not competent to testify on whether or not
the intubation was a success. The Court did not agree.
The Court explained:
Although witness Cruz is not an anesthesiologist, she
can very well testify upon matters on which she is
capable of observing such as, the statements and acts of
the physician and surgeon. external appearances, and
manifest conditions which are observable by any one.
This is precisely allowed under the doctrine of res ipsa
loquitur where the testimony of expert witnesses is not
required. It is the accepted rule that expert testimony is
not necessary for the proof of negligence in non-technical
matters or those of which an ordinary person may be
expected to have knowledge, or where the lack of skill or
want of care is so obvious as to render expert testimony
unnecessary. We take judicial notice of the fact that
PRESUMPTIONs OF NEGUGENCE I 231
anesthesia procedures have become so common, that

even an ordinary person can tell if it was administered
properly. As such, it would not be too difficult to tell if
the tube was properly inserted. This kind of observation,
we believe, does not require a medical degree to be
acceptable. (emphasis supplied)
Interestingly, the Court did not rule in the same

manner regarding the testimony of Dr. Jamora. In fact,
it rejected Dr. Jamora as witness because he cannot be
considered as an authority in the field of anesthesio-
logy simply because he was not an anesthesiologist. It
explained:
Since Dr. Jamora is a pulmonologist, he could not have
been capable of properly enlightening the court about
anesthesia practice and procedure and their compli-
cations. Dr. Jamora is likewise not an allergologist and
could not therefore properly advance expert opinion on
allergic-mediated processes. Moreover, he is not a
pharmacologist and, as such, could not have been
capable, as an expert would, of explaining to the court
the pharmacologic and toxic effects of the supposed
culprit, Thiopental Sodium (Pentothal). (emphasis
supplied)
The Court's treatment of Dr. Jamora illustrates that it

is possible to require expert testimony in a case
covered by res ipsa loquitur.
The Court found the doctors negligent.

Their own testimonies which are reflected in the
transcript of stenographic notes are replete of signposts
indicative of their negligence in the care and manage-
ment of Erlinda.
232 1ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DEUCTS
With regard to Dra. Gutierrez, we find her negligent in

the care of Erlinda during the anesthesia phase. As borne
by the records, respondent Dra. Gutierrez failed to
properly intubate the patient.
Respondent Dr. Hosaka's negligence can be found in his

failure to exercise the proper authority (as the "captain"
of the operative team) in not determining if his anes-
thesiologist observed proper anesthesia protocols. In
fact, no evidence on record exists to show that res-
pondent Dr. Hosaka verified if respondent Dra.
Gutierrez properly intubated the patient. Furthermore, it
does not escape us that respondent Dr. Hosaka had
scheduled another procedure in a different hospital at
the same time as Erlinda's cholecystectomy, and was in
fact over three hours late for the latter's operation.
Because of this, he had little or no time to confer with his
anesthesiologist regarding the anesthesia delivery. This
indicates that he was remiss in his professional duties
towards his patient. Thus, he shares equal responsibility
for the events which resulted in Erlinda's condition.
Questions for Discussion
1. Last May, Mang Ernie, Bert's driver was given a ticket

by the MMDA for reckless driving. This June, he was
caught in Makati by city traffic enforcers violating the
number coding scheme. If he is involved in a vehicular
collision in July, will he be presumed negligent? Would
it matter if Bert was not in the car when he was given a
ticket by the MMDA?
2. Donald, Ms. Daisy's driver was given a ticket for
reckless driving last May. If Donald is involved in a
vehicular mishap in June, would he presumed
negligent? What if the reckless driving happened in
January, would he be presumed negligent?
PRESUMP1ONS OF NEGUGENCE I 233
3. Why should the presumption in Article 2184 be limitedl

to violations "witdn the next preceding two months"?
Should not the presumption also arise if the driver was
guilty of multiple violations more than two months
prior?
4. Albert forgot his driver's license. The car he was
driving collided with a train. Is he presumed negligent?
5. Marco's car would not start. He asked bystanders to
help him push while he tried to jumpstart it. While the
car was moving in this way, it hit a person on a bicycle.
Is Marco presumed negligent if at the time he did not
have a driver's license?
6. Is there a legal basis for the Court to import the res ipsa
loquiturdoctrine from common law?
7. Should the doctrine of res ipsa loquitur be incorporated
in the Civil Code? How will you write it?
8. Should res ipsa loquitur be employed to justify the
admission of non-expert testimony?
9. How can the courts determine if an issue is within the,
realm of common knowledge and not the domain of
medical science?
Citation:
Tue Apr 17 10:46:04 2018



IV. Defenses Against the Charge of
Negligence
A. PLAINTIFF's NEGLIGENCE IS THE PROXIMATE CAUSE
Article 2179 provides that when the plaintiff's own

negligence was the immediate and proximate cause of
his injury, he cannot recover damages. Thus, the
defendant can raise the defense that the plaintiff was
negligent and that his negligence was the proximate
cause of his injury.
It would seem that based on this article, a plaintiff

whose negligence is determined by the Court to be the
proximate cause of the injury cannot recover even if
defendant's negligence is also or forms part of the
proximate cause. In other words, if the proximate
cause consists of the plaintiff's negligence concurring
with the negligence of the defendant, the plaintiff
cannot recover. This view is supported by Bernardo v.
Legaspi,' where the Court ruled that if "the plaintiff in
a negligence action, by his own carelessness contri-
butes to the principal occurrence, that is, to the acci-
dent, as one of the determining causes thereof, he
cannot recover." 2
In PLDT v. CA, 3 spouses Antonio and Gloria Esteban

sued PLDT for the injuries they sustained when their
I Bernardov. Legaspi, G.R. No. 9308, 23 December 1914.

2 Id.
3 PLDT v. CA, G.R. No. 57079,29 September 1989.
234
DEFENsAmNT~ECHARGEOFNEGUGENCEI 235
jeep ran over a mound of earth and fell into an open

an excavation allegedly undertaken by PLDT for the
installation of its underground conduit system. They
claimed that they failed to notice the open trench,
which was left uncovered, because of the creeping
darkness and the lack of any warning light or signs.
The Court agreed with the appellate court that the

accident was due to the lack of diligence of Antonio
Esteban and was not imputable to negligent omission
on the part of PLDT. The Court found that:
" The accident was not due to the absence of

warning signs but to the unexplained abrupt
swerving of the jeep from the inside lane;
" The jeep must have been running quite fast;
and
• With the drizzle, he should not have run on
dim lights but should have put on his regular
lights, which should have made him see the
mound in time.
Thus, the Court ruled that the negligence of Antonio

Esteban was not only contributory to his injuries and
those of his wife but went to the very cause of the
occurrence of the accident, as one of its determining
factors, and thereby precluded their right to recover
damages. The perils of the road were known to, hence
appreciated and assumed by the spouses. By exer-
cising reasonable care and prudence, Antonio could
have avoided the injurious consequences of his act,
even assuming arguendo that there was some alleged
negligence on the part of PLDT.
236 I AiYSIS OF PHILIPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-EuCTS
The Court also ruled that the presence of warning

signs could not have completely prevented the
accident because the only purpose of said signs was to
inform and warn the public of the presence of exca-
vations on the site. The spouses already knew of the
presence of said excavations. It was not the lack of
knowledge of these excavations which caused the jeep
of the spouses to fall into the excavation but the
unexplained sudden swerving of the jeep from the
inside lane towards the accident mound. It pointed
out that, as opined in some quarters, the omission to
perform a duty, such as the placing of warning signs
on the site of the excavation, constitutes the proximate
cause only when the doing of the said omitted act
would have prevented the injury. It said that the
spouses could not charge PLDT for their injuries
where their own failure to exercise due and reason-
able care was the cause thereof because it was both a
societal norm and necessity that one should exercise a
reasonable degree of caution for his own protection.
Furthermore, it found that Antonio had the last clear
chance or opportunity to avoid the accident,
notwithstanding the negligence he imputed to PLDT.
As a resident of Lacson Street, the Court surmised that
he passed that street almost every day and therefore
had knowledge of the presence and location of the
excavations there. Thus, it was his negligence that
exposed him and his wife to danger. Thus, he was
solely responsible for the consequences of his
imprudence.
DEFENSES AGAINST THE CHARGE OF NEGUGENCE I 237
In Manila Electric v. Remoquillo,4 Efren Magno went to

the three-storey house of Antonio Pefialoza to repair a
media agua said to be in a leaking condition. The media
agua was just below the window of the third storey.
Standing on said media agua, Magno received a
galvanized iron sheet to cover the leaking portion
from his son through that window. He then turned
around and in doing so, the lower end of the iron
sheet came into contact with the electric wire of the
Manila Electric Company strung parallel to the edge
of the media agua and 2 feet from it, causing his
death by electrocution. His widow and children filed
suit to recover damages.
The Court ruled that the death of Magno was

primarily caused by his own negligence and in some
measure by the too close proximity of the "media agua"
or rather its edge to the electric wire of the company by
reason of the violation of the original permit given by the
city and the subsequent approval of said illegal cons-
truction of the "media agua". (emphasis supplied)
Based on this paragraph alone, the proximate cause

was a combination of two negligent acts, one by
Magno and the other by a non-party to the suit.
But later the Court said:

the violation of the permit for the construction of the
"media agua" was not the direct cause of the accident. It
merely contributed to it. Had said "media agua" been
only one meter wide as allowed by the permit, Magno
standing on it, would instinctively have stayed closer to
4 Manila Electric v. Remoquillo, G.R. No. L-8328,18 May 1956.

238 I ANALYSIS OF PHILIPPINE LAW AND JURJSPRUDENCE ON TORTS AND QUASI-DEUCTS
or hugged the side of the house in order to keep a safe
margin between the edge of the "media agua" and the
yawning 2-storey distance or height from the ground,
and possibly if not probably avoided the fatal contact
between the lower end of the iron sheet and the wires.
Here, the Court downgraded the contribution of the

fact that the media agua did not comply with
regulations.5 Later, the Court placed the blame
entirely on Magno:
Thus, the real cause of the accident or death was the
reckless or negligent act of Magno himself. When he
was called by his stepbrother to repair the "media agua"
just below the third story window, it is to be presumed
that due to his age and experience he was qualified to do
so. Perhaps he was a tinsmith or carpenter and had
training and experience for the job. So he could not have
been entirely a stranger to electric wires and the danger
lurking in them. But unfortunately, in the instant care,
his training and experience failed him, and forgetting
where he was standing, holding the 6-feet iron sheet
with both hands and at arm's length, evidently without
looking, and throwing all prudence and discretion to
the winds, he turned around swinging his arms with the
motion of his body, thereby causing his own electro-
cution. (emphasis supplied)
Thus, the Court reversed the appellate court's ruling

regarding the award of damages and dismissed the
complaint against Manila Electric Company.
5 In Rakes v. 7he Atlantic, the Court distinguished between negligence

contributing to the accident versus negligence contributing to the
injury. The former corresponds to proximate cause while the latter
corresponds to contributory negligence. If the fact that the media agua
did not comply with regulations not contribute to the accident as
proximate cause, it only leaves contribution to the injury.
DEFENSES AGINST THE CHARGE OF NEGUGENCE I 239
B. CONTRBUTORY NEGLIGENCE OF THE PLAINTIFF
Article 2179 provides that if the negligence of the

plaintiff was only contributory and the immediate and
proximate cause of the injury was the defendant's lack
of due care, the plaintiff may recover damages. In this
scenario, however, the court shall mitigate the
damages to be awarded. This rule is reiterated in
Article 2214, which states that in quasi-delicts, the
contributory negligence of the plaintiff shall reduce
the damages that he may recover.
Thus, the defendant may raise the defense that the

plaintiff himself had contributory negligence. This,
however, is not a complete defense because even with
contributory negligence, the plaintiff may still recover
damages although not the amount he would have
been entitled to had he not been negligent.
Note, however, that the proximate cause of the injury

to the plaintiff must be the negligence of the defen-
dant. If the proximate cause of the injury was the
negligence of a third party, the plaintiff cannot reco-
ver from the defendant regardless of the contributory
negligence of the defendant.
The difficulty is in determining whether the plaintiff's

negligence was contributory negligence or the proxi-
mate cause of the injury. The concept of proximate
cause is discussed more fully in the next chapter but
the following discussion will focus on the concept of
240 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DELICTs
1. Definition of Contributory Negligence
According to the Court,6 the leading case in contri-

butory negligence is M.H. Rakes v. the Atlantic.7 In this
case, the Court, speaking of the plaintiff's contri-
bution, said:
Where he contributes to the principal occurrence, as one

of its determining factors, he cannot recover. Where, in
conjunction with the occurrence, he contributes only to
his own injury, he may recover the amount that the
defendant responsible for the event should pay for such
injury, less a sum deemed a suitable equivalent for his
own imprudence.8 (emphasis supplied)
Hence, it may be said that contributory negligence is

one that merely contributes to the plaintiff's injury but
not to the principal occurrence. Thus, the Rakes
distinction goes into what the victim's negligence
contributed to-either to the injuries suffered or the
cause of the injury.
In M.H. Rakes v. the Atlantic,9 Rakes was one of eight

laborers of the Atlantic, Gulf and Pacific Company
who were transporting iron rails from a barge in the
harbor to the company's yard. There were two hand
cars 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
6 Aftonuevo v. CA, G.R. No. 130003,20 October 2004.

7 M.H. Rakes v. The Atlantic, G.R No. L-1719, 23 January 1907.
s id.
9 Id.
DEFESAGmNSThECHARGEOFNEGUGENCE 1241
off." According to Rakes, the men were either in the

rear of the car or at its sides. According to the
company, 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, and the rails slid off
and caught Rakes, breaking his leg, which was
afterwards amputated.
The relevant issue before the Court was whether the

negligence of Rakes contributed to the accident and if
so, what legal effect should be given to it.
Rakes was allegedly negligent in two ways:

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.
Regarding the first point, the Court ruled that:
There is nothing in the evidence to show that the plain-

tiff 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
242 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DELIcTs
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 de-
pression 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."
Regarding the second point,
...
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 prepon-
derance is in favor of the defendant's contention to the
extent of the general order being made known to the
workmen.
The Court then discussed what the law in the U.S. was
at that time:
While a few of the American States have adopted to a

greater or less extent the doctrine of comparative negli-
gence 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 dama-
DEFENSES AGAJST THE CHARGE OF NEGUGENCEI 243
ge, 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 contributing to his injury, bars
his recovery. (emphasis supplied)
The Court cited Grant Trunk Railway Company vs.

Ives,'0 where the Supreme Court of the United States
authoritatively stated the rule at that time:
Although the defendant's negligence may have been the
primary cause of the injury complained of, yet an action
for such injury cannot 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 negli-
gence 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 conse-
quences of the injured party's negligence."' (emphasis
supplied)
The Court explained that none of the cases decided by

the Supreme Court of Spain define the effect to be
given by the negligence of a plaintiff which contri-
buted to his injury as one of its causes, though not the
principal one. Thus, it said that it was "left to seek the
theory of the civil law in the practice of other
countries."
10 Cited in the case as '144 U. S., 408, at p. 429."

11Id. It must be noted that based on this authority the only exception to
the rule that the plaintiff's negligence bars recovery is the doctrine of
last clear chance.
244 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON ToRS AND QUASI-DELIcTs
Thus, the Court cited the relevant rules in France,

Quebec in Canada, Portugal and Austria. It said that
in France, there were authorities for the view that "the
carelessness of the victim did not civilly relieve the
person without whose fault the accident could not
have happened, but that the contributory negligence
of the injured man had the effect only of reducing the
damages." It also pointed out that in Quebec, there
was jurisprudence to the effect that "contributory
negligence did not exonerate the defendants whose
fault had been the immediate cause of the accident,
but entitled him to a reduction of damages." It quoted
the Code of Portugal, which said:
If in the case of damage there was fault or negligence on
the part of the person injured or in the part of someone
else, the indemnification shall be reduced in the first
case, and in the second case it shall be appropriated in
proportion to such fault or negligence ...
It also noted that the Austrian Code provided that

"the victim who is partly changeable with the accident
shall stand his damages in proportion to his fault, but
when that proportion is incapable of ascertainment,
he shall share the liability equally with the person
principally responsible." The Court further noted that
this principle of proportional damages appeared to
have been adopted in Article 51 of the Swiss Code.
The Court explained the reason behind the strict US

common law rule:
The rule of the common law, a hard and fast one, not
adjustable with respects of the faults of the parties,
appears to have grown out the original method of trial
DEFENSES AGmwNST THE CHARGE OF NEGUGENCE 1 245
by jury, which rendered difficult a nice balancing of res-

ponsibilities and which demanded an inflexible standard
as a safeguard against too ready sympathy for the
injured. It was assumed that an exact measure of several
concurring faults was unattainable.
The reason why, in cases of mutual concurring

negligence, neither party can maintain an action
against the other, is, not the wrong of the one is set off
against the wrong of the other; it is that the law cannot
measure how much of the damage suffered is
attributable to the plaintiff's own fault. If he were
allowed to recover, it might be that he would obtain
from the other party compensation for his own
misconduct. (Heil vs. Glanding, 42 Penn. St. Rep., 493,
499.)
The parties being mutually in fault, there can be no

appointment of damages. The law has no scales to
determine in such cases whose wrongdoing weighed
most in the compound that occasioned the mischief.
(Railroadvs. Norton, 24 Penn. St. 565, 469.)
In the end, the Court affirmed the ruling of the lower

court, although with a reduction in damages. It
explained:
Whatever may prove to be the doctrine finally adopted
in Spain or in other countries under the stress and
counter stress of novel schemers of legislation, we find
the theory of damages laid down in the judgment the
most consistent with the history and the principals of our
law in these Islands and with its logical development.
In ruling that Rakes can recover despite his

negligence, it said:
Difficulty seems to be apprehended in deciding which
acts of the injured party shall be considered immediate
causes of the accident. The test is simple. Distinction
246 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON ToRTs AND QUASI-DELICTS
must be between the accident and the injury, between

the event itself, without which there could have been no
accident, and those acts of the victim not entering into it,
independent of it, but contributing under review, was
the displacement of the crosspiece or the failure to
replace it. This produced the event giving occasion for
damages-that is, the sinking of the track and the sliding
of the iron rails. To this event, the act of the plaintiff in
walking by the side of the car did not contribute,
although it was an element of the damage which came to
himself. Had the crosspiece been out of place wholly or
partly thorough his act of omission of duty, the last
would have been one of the determining causes of the
event or accident, for which he would have been respon-
sible. Where he contributes to the principal occurrence,
as one of its determining factors, he cannot recover.
Where, in conjunction with the occurrence, he contri-
butes only to his own injury, he may recover the
amount that the defendant responsible for the event
should pay for such injury, less a sum deemed a suitable
equivalent for his own imprudence. (emphasis supplied)
In this case, the Court reduced the damages awarded

to Rakes by 50%.
In Ma-ao Sugar v. CA, 12 Julio Famoso was riding with a

co-employee in the caboose or "carbonera" of Ply-
mouth No. 12, a cargo train of Ma-ao Sugar Central
Co., Inc. ("Ma-ao"), when the locomotive was sudden-
ly derailed. Famoso and his companion jumped off to
escape injury, but the train fell on its side, caught his
legs by its wheels, pinned him down and he died.
12 Ma-Ao Sugar Central Co., Inc. v. Court of Appeals, G.R. No. 83491, 27
August 1990.
DEFEN8ESAGAJNST1-ECHARGEOFNEGUGENE 1247
Because claims for death and other benefits were

denied by Ma-ao, Hermnia Famoso filed suit. The
trial court ruled in her favor but deducted 25% from
the total damages awarded because of Julio's contri-
butory negligence. The appellate court sustained the
rulings of the trial court except as to the contributory
negligence of the deceased and disallowed the
deductions.
The Court affirmed the finding of negligence on the

part of Ma-ao.
The Court also held that Julio was not guilty of

contributory negligence from the mere fact that he
was not at his assigned station when the train was
derailed. That might have been a violation of com-
pany rules, but it could not have directly contributed
to his injury. It said that it was pure speculation to
suppose that he would not have been injured if he had
stayed in the front car rather than at the back and that
he had been killed because he chose to ride in the
caboose. The Court added that there was no showing
that the caboose where Famoso was riding was a
dangerous place and that he recklessly dared to stay
there despite warnings or signs of impending danger.
In Aflonuevo v. CA,13 Jerome Villagracia while on his

bicycle, collided with a car driven by Jonas Afionuevo,
and owned by Procter and Gamble Inc., the employer
of Aftonuevo's brother, Jonathan. Villagracia sustain-
ed serious injuries, which necessitated his hospital-
ization several times in 1989 and forced him to
13
Afionuevo v. CA, G.R. No. 130003,20 October 2004.
248 1 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTs AND QUASi-DELICTS
undergo four operations. Villagracia instituted an

action for damages against Procter and Gamble Phils.,
Inc. and Afionuevo. The trial court ruled against
Procter and Gamble and AfIonuevo, and was affirmed
by the appellate court.
Afionuevo insisted that Villagracia's own fault and

negligence served to absolve the former of any
liability for damages. Afionuevo pointed out that
Villagracia's bicycle had no safety gadgets such as a
horn or bell, or headlights, as required by a 1948
municipal ordinance, nor was it duly registered with
the Office of the Municipal Treasurer, as required by
the same ordinance. Furthermore, as admitted by
Villagracia, his bicycle did not have foot brakes.
Villagracia did not dispute these allegations but
directed the Court's attention to the findings of
Afionuevo's own negligence. Villagracia contended
that, assuming there was contributory negligence on
his part, such would not exonerate Afionuevo from
payment of damages.
The Court ruled that Villagracia was not guilty of

contributory negligence. It explained:
To hold a person as having contributed to his injuries, it
must be shown that he performed an act that brought
about his injuries in disregard of warnings or signs of an
impending danger to health and body. To prove contri-
butory negligence, it is still necessary to establish a
causal link, although not proximate, between the negli-
gence of the party and the succeeding injury. In a legal
sense, negligence is contributory only when it contri-
butes proximately to the injury, and not simply a
condition for its occurrence. (citations omitted)
DEFENSES AAJNST THE CHARGE OF NEGUGENCE 1 249
The Court agreed with the lower courts in finding that

Afionuevo was solely responsible for the accident.
In NPC v. Heirs of Casionan,14 a trail leading to Sangilo,

Itogon was regularly used by members of the com-
munity. Sometime in the 1970's, NPC installed high-
tension electrical transmission lines of 69 KV tra-
versing the trail. Eventually, some of the transmission
lines sagged and dangled, reducing their distance
from the ground to only about 8 to 10 feet. This posed
a great threat to passersby who were exposed to the
danger of electrocution, especially during the wet
season. As early as 1991, the leaders of Ampucao,
Itogon made verbal and written requests for NPC to
institute safety measures to protect users of the trail
from their high tension wires.
Noble Casionan and Melchor cut two bamboo poles

for their pocket mining. One was 18 to 19 feet long
and the other was 14 feet long. Each man carried one
pole horizontally on his shoulder. Noble carried the
shorter pole while Melchor carried the longer pole.
Noble walked ahead as both passed through the trail
underneath the NPC high tension transmission lines
on their way to their work place. As Noble was going
uphill and turning left on a curve, the tip of the
bamboo pole he was carrying touched one of the
dangling high tension wires. Melchor, who was
walking behind him, narrated that he heard a buzzing
sound when the tip of Noble's pole touched the wire
for only about one or two seconds. Thereafter, he saw
14 NPC v. Heirsof Casionan,G.R No. 165969, 27 November 2008.

250 I ANAYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QuAsiDEuCTS
Noble fall to the ground. Melchor rushed to Noble

and shook him, but the latter was already dead. Their
co-workers heard Melchor's shout for help, and
together they brought the body of Noble to their
camp. A post-mortem examination determined the
cause of death to be "cardiac arrest, secondary to
ventricular fibulation, secondary to electrocution."
They also observed a small burned area in the middle
right finger of the victim. The heirs of Casionan filed a
claim for damages.
The relevant issue before the Court was whether the

award for damages should be deleted in view of the
contributory negligence of the victim.
NPC contended that the mere presence of the high

tension wires above the trail did not cause the victim's
death, but it was Noble's negligent act of carrying of
the bamboo pole that caused his death. It argued that
Noble was negligent when he allowed the bamboo
pole he was carrying to touch the high tension wires.
It buttressed this argument by pointing out that "other
people traversing the trail have not been similarly
electrocuted."
The Court ruled that the "sagging high tension wires

were an accident waiting to happen." It said:
As established during trial, the lines were sagging
around 8 to 10 feet in violation of the required distance
of 18 to 20 feet. If the transmission lines were properly
maintained by petitioner, the bamboo pole carried by
Noble would not have touched the wires. He would not
have been electrocuted.
DEFENSES AGAINST ThE CHARGE OF NEGUGENCE I 251
The Court said that NPC could not "excuse itself from
its failure to properly maintain the wires by attri-
buting negligence to the victim."
In addition, it found no contributory negligence on

Casionan's part. In explaining this ruling, the Court
first defined what negligence is:
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.
Then, it defined 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 which
he is required to conform for his own protection.
(emphasis supplied)
It also said that:

It is an act or omission amounting to want of ordinary
care on the part of the person injured which, concurring
with the defendant's negligence, is the proximate cause
of the injury. (emphasis supplied)
The Court also explained one way of determining the

existence of contributory negligence:
There is contributory negligence when the party's act
showed lack of ordinary care and foresight that such act
could cause him harm or put his life in danger.
252 1 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DEICTS
2. Distinguishing Contributory Negligence from

Proximate Cause
The Court has held that:

about his injuries in disregard of warnings or signs of
an impending danger to health and body.15 (emphasis
supplied)
The problem with this rule is that it can also be used

to describe the proximate cause of the injury. What is
actually being described is negligence in general and
not contributory negligence in particular.
Practically speaking, contributory negligence is negli-

gence that is not the proximate cause of the injury.
Therefore, contributory negligence is negligence
which fails the applicable test for proximate cause.
However, in several cases, the Court has employed a

definition of contributory negligence which does not
distinguish it from proximate cause.
For instance, contributory negligence has been de-

fined as:
[Clonduct on the part of the injured party, contributing

as a legal cause to the harm he has suffered, which falls
15 Afionuevo v. CA, G.R. No. 130003,20 October 2004; Ma-ao Sugar Central
Co., Inc. v. Court of Appeals, G.R. No. 83491, 27 August 1990, citing
Ocampo v. Capistrano, CA-G.R. No. 47067-R, 24 January 1980.
DEFENSES AGANSTTHE CHARGE OF NEGuGENCE I 253
below the standard which he is required to conform for

his own protection.16 (emphasis supplied)
This definition is problematic because "legal cause"

can be the equivalent of proximate cause. Hence, this
definition would make contributory negligence indis-
tinguishable from proximate cause.
Contributory negligence has also been defined as:
an act or omission amounting to want of ordinary care

on the part of the person injured which, concurring with
the defendant's negligence, is the proximate cause of
the injury.17 (emphasis supplied)
This definition makes contributory negligence part of

the proximate cause. If the contributory negligence is
a concurrent cause then it is a proximate cause.
Jurisprudence also explains that:
To prove contributory negligence, it is still necessary to

establish a causal link, although not proximate, between
the negligence of the party and the succeeding injury. In
a legal sense, negligence is contributory only when it
16 Sealoader Shipping v. Grand Cement, G.R. No. 167363, 15 December

2010; NPC v. Heirs of Casionan, G.R. No. 165969, 27 November 2008;
Estacionv.Bernardo,G.R. No. 144723,27 February 2006; PNR v. Brunty,
G.R No. 169891, 2 November 2006; Estacion v. Bernardo, G.R. No.
144723, 27 February 2006; Valenzuela v. Court of Appeals, G.R. No.
115024, 7 February 1996.
17 NPC v. Heirs of Casionan, G.IL No. 165969, 27 November 2008; Ma-ao
Sugar Central Co., Inc. v. Court of Appeals, G.IR No. 83491, 27 August
1990, citing "Moreno, Philippine Law Dictionary, 3rd Ed., p. 210."
254 1 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASELICTS
contributes proximately to the injury, and not simply a

condition for its occurrence.18 (emphasis supplied)
While the first sentence is correct in making a

distinction between contributory negligence and pro-
ximate cause, the second sentence may be confusing
as it uses the word "proximate". In this case, the
guiding principle is still the Rakes distinction. Neg-
ligence is only contributory and not the proximate
cause if it contributes to the victim's injuries and not
to the principal occurrence or the cause of his injuries.
In other words, it is only contributory negligence if
the victim's negligence affected the degree to which
he was injured and not whether it is the cause of the
injury.
3. Effect of Contributory Negligence
As discussed earlier, contributory negligence on the

part of the plaintiff will not prevent him from
recovering from a defendant whose negligence was
the proximate cause of the plaintiff's injury. However,
the plaintiff's award of damages would be mitigated.
The Court has said that the "underlying precept on

contributory negligence is that a plaintiff who is
partly responsible for his own injury should not be
entitled to recover damages in full but must bear the
consequences of his own negligence"'19 and that the
IsPNR v. Brunty, G.R. No. 169891, 2 November 2006; Afionuevo v. Court

of Appeals, G.R No. 130003, 20 October 2004; Fuentes v. NLRC, G.R.
No. 75955, 28 October 1988.
19 NPC v. Heirsof Casionan,G.R. No. 165969,27 November 2008; Lamnbert
v. Heir of Ray Castillon,G.R. No. 160709, 23 February 2005.
DEFENSES AGAINST THE CHARGE OF NEGUGENCE 1 255
"defendant must thus be held liable only for the

damages actually caused by his negligence." 20
The Court has noted that contributory negligence

under common law prevented any recovery at all by a
plaintiff who was also negligent, even if the plaintiff's
negligence was relatively minor as compared with the
wrongful act or omission of the defendant. 21
In Lambert v. Heirs of Ray Castillon,z2 the Court

demonstrated the effect of contributory negligence on
the award of damages. In this case, Ray Castillon
visited the house of his brother Joel and borrowed his
motorcycle. He then invited his friend, Sergio Labang,
to roam around the city. Ray drove the motorcycle
with Sergio riding at his back. That evening, after
eating supper at a restaurant and imbibing a bottle of
beer, they traversed the highway at a high speed and
collided with a Tamaraw jeepney, owned by Nelen
Lambert and driven by Reynaldo Gamot. The jeepney
was traveling in the same direction but made a
sudden left turn. The incident resulted in the
instantaneous death of Ray and injuries to Sergio.
The Court ruled that the abrupt and sudden left turn
by Reynaldo, without first establishing his right of
way, was the proximate cause of the mishap which
claimed the life of Ray and injured Sergio. The Court
said:
2L0ambert v. Heirs of Ray Castillon, G.R. No. 160709, 23 February 2005,

citing Syki v. Begasa,G.RI No. 149149,23 October 2003.
21 Phoenix v. LAC, G.R. No. L-65295, 10 March 1987.
22 Lambert v. Heirs of Ray Castillon,G.R. No. 160709,23 February 2005.
256 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON ToRTs AND QUAS-DEUCTS
The cause of the collision is traceable to the negligent act

of Reynaldo for, as the trial court correctly held, without
that left turn executed with no precaution, the mishap in
all probability would not have happened. (emphasis
supplied)
Regarding Ray's contributory negligence, the Court

said:
While we agree with the trial court that Ray was likewise
guilty of contributory negligence as defined under
Article 2179 of the Civil Code, we find it equitable to
increase the ratio of apportionment of damages on
account of the victim's negligence. (emphasis supplied)
Regarding the effect of contributory negligence:

The underlying precept on contributory negligence is
that a plaintiff who is partly responsible for his own
injury should not be entitled to recover damages in full
but must bear the consequences of his own negligence.
The defendant must thus be held liable only for the
damages actually caused by his negligence. The deter-
nnation of the mitigation of the defendant's liability
varies depending on the circumstances of each case. The
Court had sustained a mitigation of 50% in Rakes v. AG &
P; 20% in Phoenix Construction, Inc. v. Intermediate
Appellate Court and LBC Air Cargo, Inc. v. Court ofAppeals;
and 40% in Bank of the PhilippineIslands v. Court of Appeals
and PhilippineBank of Commerce v. Courtof Appeals.
In the case at bar, it was established that Ray, at the time

of the mishap: (1) was driving the motorcycle at a high
speed; (2) was tailgating the Tamaraw jeepney; (3) has
imbibed one or two bottles of beer; and (4) was not wea-
ring a protective helmet. These circumstances, although
not constituting the proximate cause of his demise and
injury to Sergio, contributed to the same result. The
contribution of these circumstances are all considered
and determined in terms of percentages of the total

cause. Hence, pursuant to Rakes v. AG & P, the heirs of
Ray Castillon shall recover damages only up to 50% of
the award. In other words, 50% of the damage shall be
borne by the private respondents; the remaining 50%
shall be paid by the petitioner. (emphasis supplied)
In PNR v. Brunty,23 one issue was whether the driver

of a car that collided with a train was guilty of
The Court defined contributory negligence as "con-

duct 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." It added:
about his injuries in disregard of warning or signs of an
impending danger to health and body. (emphasis
supplied)
It further stated that:

To prove contributory negligence, it is still necessary to
establish a causal link, although not proximate, between
the negligence of the party and the succeeding injury.
This implies that there are at least two types or

degrees of causality-one being proximate and the
other not proximate. But the Court did not explain the
causal link that is not proximate. Perhaps the Court
was referring to "remote cause." A remote cause

258 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASiDELICTS
would have been the proximate cause had it not been

for an efficient intervening cause.24 So, one way of
interpreting the Court's statement would be that for
negligence to be contributory, the negligence would
have to be at least a remote cause.
In a legal sense, negligence is contributory only when it

contributes proximately to the injury, and not simply a
condition for its occurrence.
This refers to the contributory negligence being

proximate to the injury, so it is still consistent with the
Rakes distinction because it does not say "proximate to
the occurrence." When the decision speaks of "con-
dition" for its occurrence, perhaps it is referring to the
"cause versus condition" dichotomy.25 However, if a
condition is a remote cause then this is not consistent
with the earlier statement stating that contributory
negligence can be a remote cause.
As to the relevant facts of the case, the Court in Brunty

found that:
" there was a slight curve before approaching the

tracks;
" the place was not properly illuminated;
" one's view was blocked by a cockpit arena; and
" the driver was not familiar with the road.
But the Court also found that the driver was then
driving at a speed of 70 km/hr and had overtaken a
24
See discussion on remote cause and efficient intervening cause in
"Chapter V. The Cause."
25 See discussion on cause versus condition in "Chapter V. The Cause."
vehicle a few yards before reaching the railroad track.

It said that the driver should not have driven the car
the way he did. But while his acts contributed to the
collision,26 they nevertheless do not negate the rail-
road company's liability.
It seems that the Court ruled that there was contri-

butory negligence, but under Article 2179, the only
effect would be to mitigate liability, which, however,
was not applicable in this case. It explained:
We note that the damages awarded by the appellate
court consist of (1) P50,000.00 as indemnity for the death
of Rhonda Brunty; (2) P1,000,000.00 as actual and moral
damages due the heirs of Rhonda Brunty; and (3)
P50,000.00 as and by way of attorney's fees. No da-
mages, however, were awarded for the injuries suffered
by Garcia, yet, the latter never interposed an appeal
before the CA nor even before this Court. The record is,
likewise, bereft of any allegation and proof as to the
relationship between Mercelita (the driver) and Rhonda
Brunty. Hence, the earlier finding of contributory negli-
gence on the part of Mercelita, which generally has the
effect of mitigation of liability, does not apply.
The effect of Article 2179 would have been to limit the

recovery of the driver Mercelita. But because the
driver did not receive damages, there is nothing to
mitigate. Neither can the award to Brunty be miti-
gated because there was no relationship between
them that would impute the driver's negligence to
Brunty.
26 It may be argued that if the negligence contributed to the collision

then it contributed to the occurrence and not only to the inJury.
260 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-ELICTS
In Genobiagon v. CA, 27 the issue of contributory negli-

gence arose in connection with a criminal case. One
evening, a rig driven by Gregorio Genobiagon was
following another at a distance of two meters. An old
woman started to cross the street when the first rig
was approaching. Because Genobiagon's rig was
going so fast and because he was trying to overtake
the rig ahead of him, it bumped the old woman who
fell at the middle of the road. Genobiagon continued
to drive on, but Vicente Mangyao, a bystander who
saw the incident right before him, shouted at
Genobiagon to stop. He ran after Genobiagon when
the latter refused to stop. Overtaking Genobiagon,
Mangyao asked him why he bumped the old woman,
and he answered that it was the old woman that
bumped him. Genobiagon went back to the place
where the old woman was struck by his rig. The old
woman was unconscious, and the food and viands she
was carrying were scattered on her body. The victim
was then loaded in a jeep and brought to the hospital
where she died three hours later. The trial court found
him guilty of homicide through reckless imprudence,
which the appellate court affirmed.
In this case, the Court ruled that:

The alleged contributory negligence of the victim, if any,
does not exonerate the accused. 'The defense of contri-
butor" negligence does not apply in criminal cases com-
mitted through reckless imprudence, since one cannot
allege the negligence of another to evade the effects of
his own negligence.
27
Genobiagon v. CA, G.R. No. 40452,12 October 1989.
Hence, this case is basis for the rule that the defense of
contributory negligence on the part of the plaintiff is
not available in criminal cases committed through
reckless imprudence. 28
C. FoRTUITous EVENT
1. Definition
Article 1174 defines a fortuitous event as something

which:
" could not be foreseen; or

" foreseen, but inevitable.
A fortuitous event is sometimes equated with an "act

of God" which the Court has defined as "an accident,
due directly and exclusively to natural causes without
human intervention, which by no amount of foresight,
pains or care, reasonably to have been expected, could
have been prevented." 29
The Court has explained that:
Fortuitous events by definition are extraordinary events

not foreseeable or avoidable. It is therefore, not enough
that the event should not have been foreseen or anti-
cipated, as is commonly believed but it must be one
impossible to foresee or to avoid. The mere difficulty to
2 It must be noted, however, that the defense raised by the accused was
that "the reckless negligence of the victim was the proximate cause of
the accident which led to her death."
29
Nakpil & Sons v. CA, G.R. No. L-47851, 3 October 1986, citing I Corpus
Juris 1174."
262 I ANALYSIS OF PHIUPPINE LAw AND JURISPRUDENCE ON TORTS AND QUASI-DELICTS
foresee the happening is not impossibility to foresee

the same.30 (emphasis supplied)
This means that a fortuitous event must be impossible

to foresee or impossible to avoid. It does not mean
that the event itself is impossible, otherwise only
miraculous or supernatural events will be considered
fortuitous. It means that the average person under the
circumstances would not have foreseen or could have
avoided the event.
In Sicam v. Jorge,31 the Court had occasion to rule

whether a robbery was a fortuitous event. The case
involved an alleged robbery in a pawnshop. The
owner of jewelries pawned to the shop sued Sicam,
the pawnshop owner. The trial court ruled that
robbery was a fortuitous event, which exempted the
victim from liability for the loss, citing the case of
Austria v. Court of Appeals.32 The appellate court held
that Austria was not applicable because the robbery
incident in Austria happened in 1961 when criminality
had not as yet reached the levels attained at the time
the alleged robbery in Sicam occurred.
The Court found that Sicam had testified that there

was a security guard in their pawnshop at the time of
the robbery and that when he started the pawnshop
business in 1983, he thought of opening a vault with
the nearby bank for the purpose of safekeeping the
30 Sicam v. Jorge, G.R. No. 159617, 8 August 2007; Republic v. Luzon

Stevedoring Corporation,G.R. No. L-21749, 29 September 1967.
31Sicam v. Jorge, G.R. No. 159617,8 August 2007.
32
Austria v. Courtof Appeals, G.R. No. L-29640, 10 June 1971.
DEFENSES AGAINST THE CHARGE OF NEGUGENCE 1 263
valuables but was discouraged by the Central Bank

because pawned articles should only be stored in a
vault inside the pawnshop. Thus, the Court found that
the very measures which Sicam had allegedly adopted
show that to Sicam, the possibility of robbery was not
only foreseeable, but actually foreseen and anti-
cipated. Thus, the Court ruled that Sicam's testimony,
in effect, contradicted his defense of fortuitous event.
Essentially, what the Court here was saying was that

the fact that Sicam undertook measures against
robbery meant that robbery was foreseeable and even
anticipated. Because it was a foreseeable, it could not
be a fortuitous event.
With all due respect to the Court, this reasoning is

erroneous for at least three reasons. First, the
definition of a fortuitous event in Article 1174 is not
limited to unforeseeable events, but includes fore-
seeable but inevitable or unavoidable events. Second,
the act of taking measures against an event should not
bar one from arguing that the event was fortuitous,
otherwise, fortuitous events such as a storm would
cease to be fortuitous by the mere fact that one was
diligent enough to guard against it. Third, under the
said reasoning, a diligent person who undertakes
measures to guard against the effects of a fortuitous
event is barred from using it as a defense while a
negligent person who does not undertake measures
can claim the event is fortuitous.
The Court also said that:
Robbery per se, just like carnapping, is not a fortuitous

event. It does not foreclose the possibility of negligence
on the part of herein petitioners.
The second sentence appears to be the justification for

the first sentence. This is bolstered by the fact that the
Court quoted Co v. CA 33 immediately following this
statement. The quote stated:
It is not a defense for a repair shop of motor vehicles to

escape liability simply because the damage or loss of a
thing lawfully placed in its possession was due to
carnapping. Carnapping per se cannot be considered as a
fortuitous event. The fact that a thing was unlawfully
and forcefully taken from another's rightful possess-
ion, as in cases of carnapping, does not automatically
give rise to a fortuitous event. To be considered as
such, carnapping entails more than the mere forceful
taking of another's property. It must be proved and
established that the event was an act of God or was
done solely by third parties and that neither the
claimant nor the person alleged to be negligent has any
participation. In accordance with the Rules of ...
Carnapping does not foreclose the possibility of fault or
negligence on the part of private respondent. 34 (emphasis
supplied)
With all due respect to the Court, it seems that here it

was confusing the existence of a fortuitous event and
the availability of the fortuitous event defense. To
illustrate, if an injury is caused by an earthquake, the
defendant may still be held liable if the injury was
caused by his negligence, which coincided with the
33 Co v. CA, G.R. No. 124922, 22 June 1998.

34Id.
earthquake. But the fact that the defendant cannot

raise the fortuitous event defense does not make an
earthquake any less of a fortuitous event. An earth-
quake will always be a fortuitous event not unless it is
caused by human acts. But whether that fortuitous
event can be available as a defense for an actor sought
to be held liable for an injury is another matter
altogether.
In this case, the Court found negligence on the part

Sicam, which made the fortuitous event defense
unavailable to him.
The Court ruled that the cases of Austria v. Court of

Appeals, Hernandez v. Chairman and Cruz v. Gangan
cited by Sicam, where the victims of robbery were
exonerated from liability, were not applicable. But a
closer scrutiny of the Court's discussion would show
that in the cases mentioned, the person robbed was
not negligent under the circumstances.
Thus, in this case, the Court did not categorically rule

on whether robbery is a fortuitous event. The ruling
was primarily, if not solely, based on the finding of
negligence on the part of the defendant, which made
the fortuitous event defense unavailable to him.
2. Defense and Exceptions
Article 1174 states that, as a general rule, no one is

responsible for fortuitous events. Thus, proving that
the injury was caused by a fortuitous event is a valid
defense.
However, Article 1174 further provides that despite

the existence of a fortuitous event, a person may still
responsible:
* in cases expressly specified by the law; or

" when it is otherwise declared by stipulation; or
* when the nature of the obligation requires the
assumption of risk.
In these cases, the defense of fortuitous event does not

apply.
3. Elements
To avail of the defense of fortuitous event, jurispru-

dence requires compliance with essential elements: 35
" The cause of the unforeseen and unexpected

occurrence must be independent of human
will;
" It must be impossible to foresee the event
which constitutes the casofortuito,or if it can be
foreseen, it must be impossible to avoid;
* The occurrence must be such as to render it
impossible for the debtor to fulfill his obli-
gation in a normal manner; and
" The obligor must be free from any participation
in the aggravation of the injury resulting to the
creditor.
3 Jorge v. Sicam G.R. No. 159617, 8 August 2007; Mindex Resources

Development Corporation v. Morillo, G.R. No. 138123, 12 March 2002;
Calalas v. CA G.R. No. 122039,31 May 2000; Nakpil & Sons v. CA, G.R.
No. L-47851, 3 October 1986.
Thus, the mere existence of a fortuitous event will not

necessarily be a valid defense against liability, not
unless these four elements concur.
The usual counter-argument against the defense of

fortuitous event is that the defendant was himself
negligent. According to jurisprudence and possibly in
relation to the fourth element, "in order for a for-
tuitous event to exempt one from liability, it is
necessary that one has committed no negligence or
misconduct that may have occasioned the loss."36
Jurisprudence further provides that it does not matter

that the fortuitous event is the proximate cause and
the person's negligence is only contributory.
When a person's negligence concurs with an act of God
in producing damage or injury to another, such person
is not exempt from liability by showing that the
immediate or proximate cause of the damage or injury
was a fortuitous event. When the effect is found to be
partly the result of the participation of man-whether it
be from active intervention, or neglect, or failure to act -
the whole occurrence is hereby humanized, and re-
moved from the rules applicable to acts of God.37
(emphasis supplied)
36 Sicam v. Jorge, G.R. No. 159617, 8 August 2007; Mindex Resources

Development Corporationv. Morillo, G.R. No. 138123, 12 March 2002;
Southeastern College v. CA, G.R. No. 126389,10 July 1998; Metal Forming
Corporation v. Office of the President, G.R. No. 111386, 28 August 1995;
Juan F. Nakpil & Sons v. Court of Appeals, G.R. No. L-47851, 3 October
1986.
37 Sicam v. Jorge, G.R. No. 159617, 8 August 2007; Mindex Resources
Development Corporation v. Morillo, G.R. No. 138123, 12 March 2002;
Southeastern College v. CA, G.R. No. 126389, 10 July 1998.
268 I ANAYSIS OF PHIUPPINE LAw AND JURISPRUDENCE ON TORTS AND QUASI-DEUCTS
4. Three Step Analysis
Applying these principles, the invocation of the

defense of fortuitous event requires three essential
steps.
First, a fortuitous event must be identified. The ques-

tion that must be asked is: Was there an extraordinary
event, which could not be foreseen by the parties or
though foreseen, was inevitable?
Second, it must be determined if the circumstance

falls within any of the three exceptions under Article
1174. The questions that must be asked are: Is this a
case expressly specified by the law where the defense
of fortuitous event is not available? Is there a
stipulation by the parties that the defense of fortuitous
event is not available? Does the nature of the
obligation require the assumption of risk?
Third, it must be established that all the essential

requisites of a fortuitous event are present. The
questions that must be asked are: Is the cause of the
unforeseen and unexpected occurrence independent
of human will? Is the event impossible to foresee or if
it can be foreseen, was it impossible to avoid? Was the
occurrence such as to render it impossible for the
debtor to fulfill his obligation in a normal manner?
Was the obligor free from any participation in the
aggravation of the injury resulting to the creditor?
An analysis of jurisprudence, however, would show

that the courts conflate the first and third steps while
the second step is disregarded. Of course, it would be
possible to reduce the three steps to two because the

first step can be covered by the second element in the
third step. But in doing so, it must be kept in mind
that the existence of a fortuitous event is different from
the availabilityof the defense of fortuitous event. Stating
that a fortuitous event is present is not the same
saying that the defense of fortuitous event is appli-
cable.
In most cases, the defense of fortuitous event is

reduced merely to a determination whether there was
negligence on the part of the person claiming the
defense.
In Juntilla v. Fontanar,38 Roberto Juntilla was a.

passenger of the public utility jeepney driven by
Berfol Camoro, registered under the franchise of
Clemente Fontanar but was actually owned by
Fernando Banzon. When the jeepney reached
Mandaue City, the right rear tire exploded, causing
the vehicle to turn turtle. In the process, Juntilla, who
was sitting at the front seat, was thrown out of the
vehicle. Upon landing on the ground, he momentarily
lost consciousness. When he came to his senses, he
found that he had a lacerated wound on his right
palm. Aside from this, he suffered injuries on his left
arm, right thigh and on his back. Because of his shock
and injuries, he went back to Danao City, but on the
way, he discovered that his "Omega" wrist watch was
lost. Juntilla filed a case for breach of contract against
38
Juntillav. Fontanar,G.R. No. L-45637, 31 May 1985.
Fontanar, Banzon and Camoro. The lower court ruled

that the accident was a fortuitous event.
The Court reversed the lower court's ruling. It

explained that the lower court's ruling was based on
the rule stated by the Court of Appeals in Rodriguez v.
Red Line TransportationCo., 39 which stated that:
A tire blow-out does not constitute negligence unless the
tire was already old and should not have been used at
all. Indeed, this would be a clear case of fortuitous
event. 40
The Court found the ruling of the lower court was

based on a misapprehension of overall facts. It said
that the reliance of the lower court on the Rodriguez
case was not in order. The Court also quoted the case
of La Mallorcaand PampangaBus Co. v. De Jesus, et al.,41
which made reference to the Rodriguez case:
Petitioner maintains that a tire blow-out is a fortuitous

event and gives rise to no liability for negligence, citing
the rulings of the Court of Appeals in Rodriguez v. Red
Line Transportation Co., CA-G.R. No. 8136, December 29,
1954, and People v. Palapad,CA-G.R. No. 18480, June 27,
1958. These rulings, however, not only are not binding
on this Court but were based on considerations quite
different from those that obtain in the case at bar. The
appellate court there made no findings of any specific
acts of negligence on the part of the defendants and
confined itself to the question of whether or not a tire
blow-out, by itself alone and without a showing as to the
39 The citation provided by the Court was "CA-G.R. No. 8136, 29

December 1954."
40 Id.
41 The citation provided by the Court was "17 SCRA 23."
causative factors, would generate liability .... 42 (emphasis

supplied)
The Court ruled that in this case, there were specific

acts of negligence on the part of Fontanar, et al.
The records show that the passenger jeepney turned
turtle and jumped into a ditch immediately after its right
rear tire exploded. The evidence shows that the
passenger jeepney was running at a very fast speed
before the accident. We agree with the observation of the
petitioner that a public utility jeep running at a regular
and safe speed will not jump into a ditch when its right
rear tire blows up. There is also evidence to show that
the passenger jeepney was overloaded at the time of the
accident. The petitioner stated that there were three
passengers in the front seat and fourteen passengers in
the rear.
The Court also ruled that the mere fact that the tire
was still good did not make the blow-out a fortuitous
event. It said:
While it may be true that the tire that blew-up was still
good because the grooves of the tire were still visible,
this fact alone does not make the explosion of the tire a
fortuitous event. No evidence was presented to show
that the accident was due to adverse road conditions or
that precautions were taken by the jeepney driver to
compensate for any conditions liable to cause accidents.
The sudden blowing-up, therefore, could have been
caused by too much air pressure injected into the tire
coupled by the fact that the jeepney was overloaded and
speeding at the time of the accident. (emphasis supplied)
42Id.
It seems, therefore, that the Court here required the

defendant to prove that the blow-out was not caused
by negligence. Because the defendant did not do so,
the Court presumed that the cause was negligence.
The Court quoted Lasam v. Smith,43 where it listed the

essential characteristics of a casofortuito:
In a legal sense and, consequently, also in relation to

contracts, a caso fortuito presents the following essential
characteristics: (1) The cause of the unforeseen and
unexpected occurrence, or of the failure of the debtor to
comply with his obligation, must be independent of the
human will. (2) It must be impossible to foresee the event
which constitutes the casofortuito, or if it can be foreseen,
it must be impossible to avoid. (3) The occurrence must
be such as to render it impossible for the debtor to fulfill
his obligation in a normal manner. And (4) the obligor
(debtor) must be free from any participation in the
aggravation of the injury resulting to the creditor.' (5
Encyclopedia Juridica Espafiola, 309.)44
The Court then explained that the first characteristic

was absent in this case. It said:
In the case at bar, the cause of the unforeseen and

unexpected occurrence was not independent of the
human will. The accident was caused either through the
negligence of the driver or because of mechanical defects
in the tire. Common carriers should teach their drivers
not to overload their vehicles, not to exceed safe and
legal speed limits, and to know the correct measures to
take when a tire blows up thus insuring the safety of
passengers at all times. (emphasis supplied)
43
Lasam v. Smith, G.R No. 19495, 2 February 1924.
44Id.
As to the issue regarding mechanical defects, the

Court quoted Necesito, et al. v. Paras,45 where it held:
The preponderance of authority is in favor of the

doctrine that a passenger is entitled to recover damages
from a carrier for an injury resulting from a defect in
an appliance purchased from a manufacturer, when-
ever it appears that the defect would have been dis-
covered by the carrier if it had exercised the degree of
care which under the circumstances was incumbent
upon it, with regard to inspection and application of the
necessary tests. For the purposes of this doctrine, the
manufacturer is considered as being in law the agent or
servant of the carrier, as far as regards the work of
constructing the appliance. According to this theory, the
good repute of the manufacturer will not relieve the
carrier from liability'
The rationale of the carrier's liability is the fact that the

passenger has neither choice nor control over the carrier
in the selection and use of the equipment and appliances
in use by the carrier. Having no privity whatever with
the manufacturer or vendor of the defective equipment,
the passenger has no remedy against him, while the
carrier usually has. It is but logical, therefore, that the
carrier, while not an insurer of the safety of his
passengers, should nevertheless be held to answer for
the flaws of his equipment if such flaws were at all
discoverable. ...
46 (emphasis supplied)
Thus, the common carrier is liable for an injury caused

by a mechanical defect if the flaws were discoverable.
In Southeastern College v. CA, 47 a powerful typhoon

'Saling" hit Metro Manila. Buffeted by very strong
4 Necesito, et al. v. Paras,G.R. No. L-10605, 30 June 1958.

4 id.
47 Southeastern College v. CA, G.R. No. 126389, 10 July 1998.
winds, the roof of Southeastern College's building

was partly ripped off and blown away, landing on
and destroying portions of the roofing of Dimaano's
house. After the typhoon, a team of engineers headed
by the city building official, Engr. Jesus Reyna,
conducted an ocular inspection of the destroyed
buildings. Part of the report stated, as follows:
5. One of the factors that may have led to this

calamitous event is the formation of the buildings in
the area and the general direction of the wind.
Situated in the peripheral lot is an almost U-shaped
formation of 4-storey building. Thus, with the strong
winds having a westerly direction, the general
formation of the buildings becomes a big funnel-like
structure, the one situated along College Road,
receiving the heaviest impact of the strong winds.
Hence, there are portions of the roofing, those
located on both ends of the building, which
remained intact after the storm.
6. Another factor and perhaps the most likely reason

for the dislodging of the roofing's structural trusses
is the improper anchorage of the said trusses to the
roof beams. The 1/2 inch diameter steel bars embed-
ded on the concrete roof beams which serve as truss
anchorage are not bolted nor nailed to the trusses.
Still, there are other steel bars which were not even
bent to the trusses, thus, those trusses are not
anchored at all to the roof beams.
The report also recommended that the fourth floor of

subject school building be declared as a "structural
hazard" in order to "avoid any further loss and
damage to lives, limbs and property of persons living
in the vicinity."
The Dimaanos filed a complaint for damages based on

culpa aquiliana.The lower courts ruled in favor of the
Dimaanos.
The Court had to determine whether the defense of

fortuitous event absolved Southeastern College from
liability. It explained that:
In order that a fortuitous event may exempt a person

from liability, it is necessary that he be free from any
previous negligence or misconduct by reason of which
the loss may have been occasioned. An act of God cannot
be invoked for the protection of a person who has been
guilty of gross negligence in not trying to forestall its
possible adverse consequences. When a person's negli-
gence concurs with an act of God in producing damage
or injury to another, such person is not exempt from
liability by showing that the immediate or proximate
cause of the damage or injury was a fortuitous event.
When the effect is found to be partly the result of the
participation of man-whether it be from active
intervention, or neglect, or failure to act-the whole
occurrence is hereby humanized, and removed from the
rules applicable to acts of God. (citations omitted)
A few observations may be made about the state-

ments made by the Court in the aforequoted para-
graph. First, it refers to a "previous" or prior negli-
gence which bars the invocation of the defense. But
the negligence which "humanizes" the event need not
be an antecedent negligence but may be simultaneous
with or succeeding the fortuitous event. Second, the
Court referred to "gross" negligence. It is submitted
that negligence need not be "gross" to bar the
application of the doctrine.
The Court further explained that while there was no

question that a typhoon or storm is a fortuitous event,
to be exempt from liability arising from any adverse
consequence engendered thereby, there should have
been no human participation amounting to a negli-
gent act. The Court also reiterated that a person
claiming damages for the negligence of another has
the burden of proving the existence of fault or
negligence causative of his injury or loss and the facts
constitutive of negligence must be affirmatively esta-
blished by competent evidence, not merely by pre-
sumptions and conclusions without basis in fact.
In this case, the Court found that the Dimaanos

merely relied on report submitted by a team which
made an ocular inspection of the school building after
the typhoon and said that "[w]hat is visual to the eye
though, is not always reflective of the real cause
behind." It pointed out that there was no investigation
conducted to determine the real cause of the partial
unroofing of petitioner's school building. The Court
said that the Dimaanos did not:
" show that the plans, specifications and design

of said school building were deficient and de-
fective;
" prove any substantial deviation from the ap-
proved plans and specifications; and
* conclusively establish that the construction of
such building was basically flawed.
In contrast, the Court found that Southeastern College
elicited from one of the witnesses of the Dimaanos,
city building official Jesus Reyna, that the original

plans and design of the school building were
approved prior to its construction. It added:
Engr. Reyna admitted that it was a legal requirement

before the construction of any building to obtain a
permit from the city building official (city engineer, prior
to the passage of the Building Act of 1977). In like
manner, after construction of the building, a certification
must be secured from the same official attesting to the
readiness for occupancy of the edifice. Having obtained
both building permit and certificate of occupancy, these
are, at the very least, prima facie evidence of the regular
and proper construction of subject school building.
Furthermore, when part of its roof needed repairs of the

damage inflicted by typhoon 'Saling", the same city
official gave the go-signal for such repairs-without any
deviation from the original design-and subsequently,
authorized the use of the entire fourth floor of the same
building. These only prove that subject building suffers
from no structural defect, contrary to the report that its
"U-shaped" form was "structurally defective." Having
given his unqualified imprimatur, the city building
official is presumed to have properly performed his
duties in connection therewith.
In addition, petitioner presented its vice president for

finance and administration who testified that an annual
maintenance inspection and repair of subject school
building were regularly undertaken. Petitioner was even
willing to present its maintenance supervisor to attest to
the extent of such regular inspection but private res-
pondents agreed to dispense with his testimony and
simply stipulated that it would be corroborative of the
vice president's narration.
Moreover, the city building official, who has been in the

city government service since 1974, admitted in open
court that no complaint regarding any defect on the

same structure has ever been lodged before his office
prior to the institution of the case at bench. It is a matter
of judicial notice that typhoons are common occurrences
in this country. If subject school building's roofing was
not firmly anchored to its trusses, obviously, it could not
have withstood long years and several typhoons even
stronger than 'Saling." (citations omitted)
Thus, the defense of fortuitous event was available to

Southeastern College because no negligence on its
part was proven.
But considering that it was Southeastern College who

was raising the defense of fortuitous event, then it had
the duty to prove that the defense was available,
including the fact that there was no negligence on its
part.
D. PLAINTIFF'S ASSUMPTION OF RISK
Under Article 1174, a situation of assumption of risk is

one of the three exceptions to the application of the
defense of fortuitous event. Essentially, one who has
assumed the risk of such an event cannot raise the
defense of fortuitous event.
But in addition to this, Philippine jurisprudence

appears to have adopted the common law concept of
assumption of risk or volenti non fit injuria on the part of
the plaintiff, which the defendant may use in his
defense.
In Afialda v. Hisole,48 Loreto Afialda was employed by

the defendant spouses Hisole as caretaker of their
carabaos at a fixed compensation. While tending the
animals, he was gored by one of them and later died
as a consequence of his injuries.
The Court found that the animal was in the custody

and under the control of the deceased, who was paid
for his work as such and thus, it was his duty to try to
prevent the animal from causing injury or damage to
anyone, including himself. The Court ruled that
"being injured by the animal under those circums-
tances, was one of the risks of the occupation which
he had voluntarily assumed and for which he must
take the consequences."
In flocos Norte v. CA, 49 the Court had occasion to rule

when the doctrine of assumption of risk was not
available against a person who braved a typhoon to
save her property. In 1967, typhoon "Gening" buffeted
the province of Ilocos Norte, bringing heavy rains and
consequent flooding in its wake. Isabel Lao Juan,
fondly called as Nana Belen, ventured out of the
house of her son-in-law, Antonio Yabes, and
proceeded northward towards the direction of the
Five Sisters Emporium, of which she was the owner
and proprietress, to look after the merchandise therein
that might have been damaged. Two other women
followed her. As she was wading in waist-deep flood,
Nana Belen screamed and sank into the water. The
two women tried to help, but they were afraid
48 Afialda v. Hisole, G.R No. L-2075, 29 November 1949.

49 Ilocos Norte v. CA, G.R. No. 53401,6 November 1989.
because they saw an electric wire dangling from a
post and moving in snake-like fashion in the water.
Nana Belen's heirs filed an action for damages.
In this case, the Court ruled that the maxim "volenti

non fit injuria"was not applicable. The Court said that
it was imperative to note the surrounding circums-
tances which impelled the deceased to leave the
comforts of a roof and brave the subsiding typhoon.
The Court noted that she was merely exercising her
right to protect her property from the floods. Citing
common law sources, the Court explained that:
For it has been held that a person is excused from the
force of the rule, that when he voluntarily assents to a
known danger he must abide by the consequences, if an
emergency is found to exist or if the life or property of
another is in peril.., or when he seeks to rescue his
endangered property. (citations omitted)
Thus, according to this case, the doctrine of assump-

tion of risk does not apply when:
* an emergency exists; or
* the life or property of another is in peril; or
* when a person seeks to rescue his endangered
property.
The Court found that in this case, an emergency was
at hand as the deceased's property, a source of her
livelihood, was faced with an impending loss. It
added:
Furthermore, the deceased, at the time the fatal incident
occurred, was at a place where she had a right to be
without regard to petitioner's consent as she was on her

way to protect her merchandise. Hence, private res-
pondents, as heirs, may not be barred from recovering
damages as a result of the death caused by petitioner's
negligence.
In Calalas v. CA,50 the Court ruled on whether the act

of the injured party amounted to an assumption of
risk. Eliza Sunga, seated in an "extension seat" in the
jeepney of Vicente Calalas was injured when an Isuzu
trucked bumped the jeepney. Sunga filed an action for
damages anchored on a breach of a contract of
carriage.
The Court did not agree with Calalas' contention that

Sunga's taking an "extension seat" amounted to an
implied assumption of risk. The Court said:
It is akin to arguing that the injuries to the many victims
of the tragedies in our seas should not be compensated
merely because those passengers assumed a greater risk
of drowning by boarding an overloaded ferry.
Thus, the Court merely compared Sunga's act of

taking an extension seat to the act of boarding an
overloaded ferry. Impliedly, the Court is saying that
in both instances, there was no assumption of risk, but
the Court did not provide a reason.
In Nikko Hotel v. Roberto Reyes,51 the Court ruled on the

application of the doctrine of assumption of risk in a
case decided on the basis of Article 19 and 21 of the
Civil Code. Roberto Reyes, more popularly known as
50 Calalasv. CA, G.R. No. 122039,31 May 2000.

51 Nikko Hotel v. Roberto Reyes, G.R. No. 154259, 28 February 2005.
282 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUAsI-DELICTS
"Amay Bisaya," allegedly gate-crashed a party at
Nikko Hotel and was allegedly humiliated when
asked to leave the party. Reyes filed a suit for
damages against Nikko Hotel and Ruby Lim, the
hotel's executive secretary. The trial court dismissed
the complaint and said:
Plaintiff had no business being at the party because he

was not a guest of Mr. Tsuruoka, the birthday celebrant.
He assumed the risk of being asked to leave for attend-
ing a party to which he was not invited by the host.
Damages are pecuniary consequences which the law
imposes for the breach of some duty or the violation of
some right. Thus, no recovery can be had against de-
fendants Nikko Hotel and Ruby Lim because he himself
was at fault (Garcianov. Court of Appeals, 212 SCRA 436).
He knew that it was not the party of defendant Violeta
Filart even if she allowed him to join her and took
responsibility for his attendance at the party. His action
against defendants Nikko Hotel and Ruby Lim must
therefore fail. (emphasis supplied)
The appellate court reversed the trial court's ruling.
Lim and Hotel Nikko contended that pursuant to the

doctrine of volenti non fit injuria, they cannot be made
liable for damages as Reyes assumed the risk-of being
asked to leave (and being embarrassed and humi-
liated in the process) because he was a "gate-crasher."
The Court did not consider the doctrine applicable in

this case. It explained:
The doctrine of volenti non fit injuria ("to which a person

assents is not esteemed in law as injury") refers to self-
inflicted injury or to the consent to injury which pre-
cludes the recovery of damages by one who has know-
ingly and voluntarily exposed himself to danger, even if

he is not negligent in doing so. As formulated by peti-
tioners, however, this doctrine does not find application
to the case at bar because even if respondent Reyes
assumed the risk of being asked to leave the party,
petitioners, under Articles 19 and 21 of the New Civil
Code, were still under obligation to treat him fairly in
order not to expose him to unnecessary ridicule and
shame. (citations omitted, emphasis supplied)
Thus, it seems that the Court in this case established a

counter-defense against the defense of assumption of
risk. Based on the Court's statement, the defense of
assumption of risk is not available when the cause of
action is based on Articles 19 and 21.
In Pantaleon v. American Express,5 2 the Court cited the

Nikko Hotel case but applied the doctrine against the
claimant. Polo Pantaleon, together with his wife and
children went on a guided European tour. In
Amsterdam, the group began their sightseeing at
around 8:50 a.m. with a trip to the Coster Diamond
House ('Coster"). To have enough time for a guided
city tour of Amsterdam before their departure
scheduled on that day, the tour group planned to
leave Coster by 9:30 a.m. at the latest. While at Coster,
Mrs. Pantaleon decided to purchase some diamond
pieces worth a total of US$13,826. Pantaleon presented
his American Express credit card to the sales clerk to
pay for this purchase. He did this at around 9:15 a.m.
The sales clerk swiped the credit card and asked
Pantaleon to sign the charge slip, which was then
electronically referred to AMEX's Amsterdam office
5
2Pantakon v.American Express, G.R. No. 174269,25 August 2010.
at 9:20 a.m. At around 9:40 a.m., Coster had not

received approval from AMEX for the purchase, so
Pantaleon asked the store clerk to cancel the sale. The
store manager, however, convinced Pantaleon to wait
a few more minutes. Subsequently, the store manager
informed Pantaleon that AMEX was asking for bank
references. Pantaleon responded by giving the names
of his Philippine depository banks. At around 10:00
a.m., or 45 minutes after Pantaleon presented his
credit card, AMEX still had not approved the
purchase. Since the city tour could not begin until the
Pantaleons were onboard the tour bus, Coster decided
to release the purchased items to Pantaleon at around
10:05 a.m., even without AMEX's approval. When the
Pantaleons finally returned to the tour bus, they
found their travel companions visibly irritated. This
irritation intensified when the tour guide announced
that they would have to cancel the tour because of
lack of time as they all had to be in Calais, Belgium by
3 p.m. to catch the ferry to London. Thereafter, the
Pantaleon family proceeded to the United States
where they again experienced delay in securing
approval for purchases using his American Express
credit card on two separate occasions. Pantaleon filed
an action for damages against American Express. The
trial court ruled in favor of Pantaleon but the
appellate court reversed the decision.
The Court affirmed the appellate court. It explained:
As borne by the records, Pantaleon knew even before

entering Coster that the tour group would have to leave
the store by 9:30 a.m. to have enough time to take the
city tour of Amsterdam before they left the country.
After 9:30 a.m., Pantaleon's son, who had boarded the

bus ahead of his family, returned to the store to inform
his family that they were the only ones not on the bus
and that the entire tour group was waiting for them.
Significantly, Pantaleon tried to cancel the sale at 9:40
a.m. because he did not want to cause any incon-
venience to the tour group. However, when Coster's
sale manager asked him to wait a few more minutes for
the credit card approval, he agreed, despite the know-
ledge that he had already caused a 10-minute delay and
that the city tour could not start without him. (emphasis
by the Court)
The Court cited Nikko Hotel v. Reyes,53 where it ruled

that a person who knowingly and voluntarily exposes
himself to danger cannot claim damages for the
resulting injury:
The doctrine of volenti non fit injuria ("to which a person
assents is not esteemed in law as injury") refers to self-
inflicted injury or to the consent to injury which pre-
cludes the recovery of damages by one who has know-
ingly and voluntarily exposed himself to danger, even if
he is not negligent in doing so.
The Court ruled that the doctrine was applicable in

this case.
Pantaleon himself testified that the most basic rule when

travelling in a tour group is that you must never be a
cause of any delay because the schedule is very strict.
When Pantaleon made up his mind to push through
with his purchase, he must have known that the group
would become annoyed and irritated with him. This was
the natural, foreseeable consequence of his decision to
make them all wait.
5 Nikko Hotel v. Roberto Reyes, G.R. No. 154259, 28 February 2005.

286 I ANA.YSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DEUCTS
We do not discount the fact that Pantaleon and his

family did feel humiliated and embarrassed when they
had to wait for AMEX to approve the Coster purchase in
Amsterdam. We have to acknowledge, however, that
Pantaleon was not a helpless victim in this scenario-at
any time, he could have cancelled the sale so that the
group could go on with the city tour. But he did not.
E. PRESCRIPtON
Article 1146 provides that actions based on quasi-

delict must be instituted within four years.
In Kramer v. CA, 4 the Court explained when the pres-

criptive period for an action based on quasi-delict
commenced. On April 8, 1976, a fishing boat owned
by the Ernesto and Marta Kramer was navigating its
way from Marinduque to Manila. Somewhere near
Maricabon Island and Cape Santiago, the boat figured
in a collision with an inter-island vessel, the M/V Asia
Philippines owned by Trans-Asia Shipping Lines, Inc.
As a consequence of the collision, the fishing boat
sank, taking with it its fish catch. After the mishap, the
captains of both vessels filed their respective marine
protests with the Board of Marine Inquiry of the
Philippine Coast Guard. The Board conducted an
investigation for the purpose of determining the
proximate cause of the maritime collision. On October
19, 1981, the Board concluded that the loss of the F/B
Marjolea and its fish catch was attributable to the
negligence of the employees of the private respondent
who were on board the MN Asia Philippines during
the collision. On May 30, 1985, the Kramers instituted
54 Kramerv. CA, G.R. No. 83524,13 October 1989.

DEFENSES AGANsT THE CWGE OF NEGUGFNCE I 287
a complaint for damages against Trans-Asia Shipping

Lines. Trans-Asia Shipping Lines filed a motion to
dismiss on the ground of prescription. The trial court
denied the motion, which the appellate court
reversed.
The Court explained that under Article 1146 of the

Civil Code, an action based upon a quasi-delict must
be instituted within four years. It explained that the
prescriptive period begins from the day the quasi-
delict is committed.
It cited the case of Paulan vs. Sarabia,ss where the

Court ruled that in an action for damages arising from
the collision of two trucks, the action being based on a
quasi-delict, the four-year prescriptive period must be
counted from the day of the collision.
It also cited Espailol vs. Chairman, Philippine Veterans

Administration,56 where the Court held:
The right of action accrues when there exists a cause of
action, which consists of 3 elements, namely: a) a right in
favor of the plaintiff by whatever means and under
whatever law it arises or is created; b) an obligation on
the part of defendant to respect such right; and c) an act
or omission on the part of such defendant violative of the
right of the plaintiff ... It is only when the last element
occurs or takes place that it can be said in law that a
cause of action has arisen...
55 Paulan v. Sarabia,G.R. L-10542, 31 July 1952.

56 Espafiol v. Chairman, Philippine Veterans Administration, G.R. No. L-
44616, 29 June 1985.
288 I ANALYSIS OF PHIIPPINE LAW AND JURISPRUDENCE ON TORTS AND QuAsI-DELICTS
Thus, the Court ruled "the prescriptive period must
be counted when the last element occurs or takes
place, that is, the time of the commission of an act or
omission violative of the right of the plaintiff, which is
the time when the cause of action arises."
1. Similar to railroad companies, shouldn't public utility

companies that make excavations be held responsible
for failing to place warning signs on such excavations?
Should the Court take into account the probable
knowledge of the victim regarding the location of such
excavations as it did in PLDT v. CA?
2. Should the Civil Code provide for a definition of
contributory negligence? If so, what should it state?
3. The facts in Manila Electric v. Remoquillo and NPC v.
Heirs of Casionanappear to be very similar and yet have
divergent rulings. Is there a valid distinction between
the two?
,4. In NPC v. Heirs of Casionan, the Court said, "the trail
where Noble was electrocuted was regularly used by
members of the community." Doesn't this mean that
Noble must have passed this trail many times?
Applying PLDT v. CA, doesn't this mean that the
absence of warning signs doesn't matter? Which
reasoning is better?
5. Considering the rationale for mitigating the damages
awarded to a plaintiff guilty of contributory negligence,
does 50% reduction make sense?
6. In 2011, Typhoon Sendong caused the deaths of
hundred over 1,000 people. Officials claimed that the
people were warned of possible flooding, but the

people said that the area had never experienced a flood
like this before. Does Typhoon Sendong fulfill the
definition of a fortuitous event?
7. Will the negligence of a third party prevent a defendant
in a case from raising the defense of fortuitous event?
8. Are the four requisites provided by jurisprudence to
raise the fortuitous event defense supported by the.
Civil Code?
9. Is the application of the common law concept of
assumption of risk justifiable under the Civil Code?
10. What if in 2001, A negligently parked his truck
blocking the street. In 2002, B crashed into A's truck. If
the action for quasi-delict was filed in 2006, would the
action have prescribed?
Citation:
Tue Apr 17 10:46:13 2018



V. The Cause
A. DIFFERENT CATEGORIES
1. Proximate
When a person is injured and a suit for damages

based on quasi-delict is filed, the court cannot hold
the defendant liable simply because he was negligent.
Article 2176 requires that it be proven that the act or
omission of the defendant be the cause of the injury.
More specifically, jurisprudence requires that the
injured party proves a connection of cause and effect
between the fault or negligence of the defendant and
the injury to the plaintiff.' Thus, the negligence of the
defendant must be the cause and the injury to the
2
plaintiff must be the effect.
Jurisprudence identifies the negligence that causes the

injury as the proximate cause.
The term "proximate" implies a cause that is "imme-

diate" or "near" the injury caused. Thus, in a series of
events, one may think that the cause immediately
preceding the injury must be the proximate cause. But
this is not necessarily the case. Proximate cause is
determined not by its proximity to the injury but by
1 See discussion in Chapter I.

2 However, there have been cases where the Court explains the
negligence of the defendant and not why such negligence is the
proximate cause. See for example, Pilipinas Bank v. CA, G.R. No.
105410, 25 July 1994.
290
THE CAUSE I 291
the nature of its relationship to the injury. It is not a

matter of time and space but a question of degree or
gravity. In this sense, a more proper term may be
"legal cause" and not "proximate cause."
Determining the proximate cause of an injury is

ultimately a question of policy. It has been pointed
out that "[i]n a philosophical sense, the consequences
of an act go forward to eternity, and the causes of an
event go back to the dawn of human events, and
beyond." 3 Hence, "[a]s a practical matter, legal
responsibility must be limited to those causes which
are so closely connected with the result and of such
significance that the law is justified in imposing
liability." 4 So how far back the court goes to deter-
mine the proximate cause of the injury is ultimately
the decision of the court.
To determine the proximate cause in a particular case,

one must know what a proximate cause is in the first
place. Unfortunately, the Civil Code does not provide
an explicit definition of proximate cause. Thus, juris-
prudence is relied upon to provide a definition.
In Bataclan v. Medina,5 the Court cited American

Jurisprudence and provided two definitions. First, it
provided a short definition:
that cause, which, in natural and continuous sequence,

unbroken by any efficient intervening cause, produces
3 PROssER AND KEETON ONTORTS (FIFrH ED.) 264 (1994).

4 Id.
5 Bataclan v. Medina, G.R. No. L-10126, 22 October 1957.
the injury, and without which the result would not have
6
occurred.
This definition requires the proximate cause to

produce the injury through a "natural and continuous
sequence" of events "unbroken by any efficient inter-
vening cause." The cause must be such that the injury
would not have occurred without it. This definition
has been used in a number of cases to define
7
proximate cause.
In Bataclan, the Court, again citing American Juris-

prudence, provided a longer definition of proximate
cause:
that acting first and producing the injury, either

immediately or by setting other events in motion, all
constituting a natural and continuous chain of events,
each having a close causal connection with its immediate
predecessor, the final event in the chain immediately
effecting the injury as a natural and probable result of
the cause which first acted, under such circumstances
that the person responsible for the first event should, as
an ordinarily prudent and intelligent person, have
reasonable ground to expect at the moment of his act or
default that an injury to some person might probably
result therefrom.8
6 Bataclan v. Medina, G.R. No. L-10126, 22 October 1957 citing

"American Jurisprudence, Vol. 38, pp. 695-696."
7 See for example, Ilusorio v. CA, G.R. No. 139130, 27 November 2002;
BPI v. CA, G.R. No. 112392, 29 February 2000; Sabena v. CA, G.R. No.
104685, 14 March 1996; Fernando v. CA, G.R. No. 92087, 8 May 1992;
Stronghold v. CA, G.R. No. 83376,29 May 1989.
8 Bataclan v. Medina, G.R. No. L-10126, 22 October 1957 citing
"American Jurisprudence, Vol. 38, pp. 695-696."
THE CAUSE 1293
Under this definition, the proximate cause must be

first, producing the injury immediately or setting
events in motion. If by means of the latter, there must
be a "natural and continuous chain of events having
close causal connection with its immediate prede-
cessor" with the "final event in the chain immediately
effecting the injury as a natural and probable result of
it." The definition requires that the "person respon-
sible for the first event have reasonable ground to
expect at the moment of act or omission that injury to
some person might probably result." Bataclan has also
been cited for this definition in a few cases. 9
In Mercury Drug v. Baking,o the Court defined proxi-

mate cause in a manner similar to the short definition
in Bataclan:
any cause that produces injury in a natural and conti-
nuous sequence, unbroken by any efficient intervening
cause, such that the result would not have occurred
otherwise."
In PilipinasBank v. CA, 12 the Court defined proximate

cause as:
any cause which, in natural and continuous sequence,

the result complained of and without which would not
have occurred and from which it ought to have been
9 See for example BPI v. CA, G.R. No. 102383, 26 November 1992; People
v. Iligan, G.R. No. 75369, 26 November 1990; Belarmino v. Employee's
Compensation, G.R. No. 90204, 11 May 1990; Urbano v. LAC, G.R. No.
72964, 7 January 1988.
10 Mercury Drug v. Baking, G.R. No. 156037, 25 May 2007.
11Id.
12 PilipinasBank v. CA, G.R. No. 105410,25 July 1994.
foreseen or reasonably anticipated by a person of

ordinary case that the injury complained of or some
similar injury, would result therefrom as a natural and
probable consequence. 13 (emphasis supplied)
Based on all these definitions, a proximate cause:
" is a cause without which the injury would not

have occurred; and
" results in the injury as a foreseeable and
natural and probable consequence.
In other words, the proximate cause must be

necessary for the injury to occur and the type of injury
must be one that could be foreseen given the existence
of that cause.
In addition, if the proximate cause does not

immediately result in the injury but sets in motion a
chain of events, the following requirements must be
complied with:
" each event must have a causal connection with

its immediate predecessor or is part of a natural
and continuous sequence; and
" the chain must be unbroken by an efficient
intervening cause.
In Bataclan v. Medina,14 the Court applied the de-
finition of proximate cause in a creative way. In this
case, Juan Bataclan was riding a bus of Medina Trans-
portation. The front tires burst and the vehicle
13 Id.
14Bataclanv. Medina, G.R. No. L-10126, 22 October 1957.
THE CAUSE I 295
zigzagged until it fell into a canal or ditch on the right

side of the road and turned turtle. Calls or shouts for
help were made to the houses in the neighborhood.
After half an hour, ten men came, one of them
carrying a lighted torch made of bamboo with a wick
on one end, evidently fueled with petroleum.
These men presumably approached the overturned

bus and almost immediately, a fierce fire started,
burning all and consuming the bus, including the four
passengers trapped inside it, one of which was
Bataclan. His widow filed an action for damages
against Medina.
The trial court ruled that the proximate cause of the

death of Bataclan was not the overturning of the bus,
but rather, the fire that burned the bus. Thus, at the
time the fire started, Bataclan was still alive and so
damages were awarded, not for his death, but for the
physical injuries suffered by him.
The Court disagreed with this ruling.
The Court began by defining proximate cause by

citing American Jurisprudence:
...'that cause, which, in natural and continuous se-

quence, unbroken by any efficient intervening cause,
produces the injury, and without which the result would
not have occurred.' And more comprehensively, 'the
proximate legal cause is that acting first and producing
the injury, either immediately or by setting other events
in motion, all constituting a natural and continuous
chain of events, each having a close causal connection
with its immediate predecessor, the final event in the
296 1 ANA.YSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QuAsi-DEUcTs
chain immediately effecting the injury as a natural and

probable result of the cause which first acted, under such
circumstances that the person responsible for the first
event should, as an ordinarily prudent and intelligent
person, have reasonable ground to expect at the moment
of his act or default that an injury to some person might
probably result therefrom.
In an apparent application of these definitions, the

Court found that the overturning of the bus caused
the death of Bataclan. It said:
It may be that ordinarily, when a passenger bus
overturns, and pins down a passenger, merely causing
him physical injuries, if through some event, unexpected
and extraordinary, the overturned bus is set on fire, say,
by lightning, or if some highwaymen after looting the
vehicle sets it on fire, and the passenger is burned to
death, one might still contend that the proximate cause
of his death was the fire and not the overturning of the
vehicle. But in the present case and under the
circumstances obtaining in the same, we do not hesitate
to hold that the proximate cause of the death of
Bataclan was the overturning of the bus, this for the
reason that when the vehicle turned not only on its side
but completely on its back, the leaking of the gasoline
from the tank was not unnatural or unexpected; that the
coming of the men with a lighted torch was in response
to the call for help, made not only by the passengers, but
most probably, by the driver and the conductor
themselves, and that because it was very dark (about
2:30 in the morning), the rescuers had to carry a light
with them; and coming as they did from a rural area
where lanterns and flashlights were not available, they
had to use a torch, the most handy and available; and
what was more natural than that said rescuers should
innocently approach the overturned vehicle to extend
the aid and effect the rescue requested from them. In
other words, the coming of the men with the torch was
THE CAUSE I 297
to be expected and was a natural sequence of the

overturning of the bus, the trapping of some of its
passengers and the call for outside help. (emphasis
supplied)
Thus, the Court held that the leaking of the gasoline

and arrival of the men with torches was part of a
natural sequence of events following the overturning
of the bus.
If this were not enough, the Court pointed out that

the burning of the bus could be attributed to the
negligence of the driver and conductor. It said:
What is more, the burning of the bus can also in part be

attributed to the negligence of the carrier, through its
driver and its conductor. According to the witnesses, the
driver and the conductor were on the road walking back
and forth. They, or at least, the driver should and must
have known that in the position in which the overturned
bus was, gasoline could and must have leaked from the
gasoline tank and soaked the area in and around the bus,
this aside from the fact that gasoline when spilled,
specially over a large area, can be smelt and detected
even from a distance, and yet neither the driver nor the
conductor would appear to have cautioned or taken
steps to warn the rescuers not to bring the lighted torch
too near the bus. Said negligence on the part of the
agents of the carrier come under the codal provisions
above reproduced, particularly, Articles 1733, 1759, and
1763.
It must be noted that at the outset, the Court

characterized the action as anchored on the breach of
contract of carriage. The Court also said that there was
no issue as to the negligence of the common carrier.
Thus, the discussion on proximate cause was irre-
levant as to the liability of the carrier. The only issue

was the degree of liability. The Court explained that if
the proximate cause of the death of Bataclan was the
fire, then Medina would only be responsible for
damages for physical injuries but not death. But if the
proximate cause of Bataclan's death was the over-
turning of the bus, then Medina would be liable for
damages resulting from the death of its passenger.' 5
In Mercury Drug v. Baking,16 Sebastian Baking was

given two medical prescriptions - Diamicron for his
blood sugar and Benalize tablets for his triglyceride.
He went to Mercury Drug, but the pharmacist mis-
read the prescription for Diamicron as a prescription
for Dormicum. Thus, what was sold to Baking was
Dormicum, a potent sleeping tablet. Unaware that
what was given to him was the wrong medicine, he
took one pill of Dormicum for three consecutive days.
On the third day, he took the medicine, Baking
figured in a vehicular accident because he fell asleep
while driving. Upon discovering that he was sold the
wrong medicine, he sued Mercury Drug for damages.
The lower courts ruled in favor of Baking.
The Court found Mercury Drug's employee negligent

in selling the wrong medication.
15 It could be said that the Court was not determining what the
proximate cause was but determining whether the death of Bataclan
was a proximate result of the overturning of the bus.
16 Mercury Drug v. Baking, G.R. No. 156037, 25 May 2007.
THECAUSE I 299
The Court defined proximate cause as:
Proximate cause is defined as any cause that produces

injury in a natural and continuous sequence, unbroken
by any efficient intervening cause, such that the result
would not have occurred otherwise. Proximate cause is
determined from the facts of each case, upon a combined
consideration of logic, common sense, policy, and pre-
cedent.
The Court ruled:

Here, the vehicular accident could not have occurred had
petitioner's employee been careful in reading Dr. Sy's
prescription. Without the potent effects of Dormicum, a
sleeping tablet, it was unlikely that respondent would
fall asleep while driving his car, resulting in a collision.
In this case, around three days had lapsed from the

time of the negligent act determined by the Court as
7
the proximate cause.1
In Pilipinas Bank v. CA, 18 Florencio Reyes issued

postdated checks to Winner Industrial Corporation
and Vicente Tui as payment for the purchased shoe
materials and rubber shoes. To cover the face value of
the checks, Reyes requested PCIB Money Shop's
manager Potenciano to effect the withdrawal of
P32,000 from his savings account therein and have it
deposited to his current account with Pilipinas Bank.
17 It must be noted that the day of the accident was not the first time
Baking took the wrong pill. Presumably, he must have felt drowsy the
first two times as well. If so, he was arguably negligent in driving,
knowing that taking the medication made him drowsy. But these
issues were not discussed.
18 PilipinasBank v. CA, G.R.
No. 105410, 25 July 1994.
Roberto Santos was requested to make the deposit. In

depositing in the name of Florencio Reyes, he
inquired from the teller the current account number of
Florencio Reyes to complete the deposit slip he was
accomplishing. He was informed that it was "815" and
so this was the same current account number he
placed on the deposit slip below the depositor's name
"Florencio Reyes." Noticing only the account number
and the name "Florencio," Efren Alagasi, then Current
Account Bookkeeper of Pilipinas Bank, thought it was
for Florencio Amador who owned the listed account
number. He thus posted the deposit in the latter's
account, not noticing that the depositor's surname in
the deposit slip was "Reyes." The check issued in
favor of Winner Industrial Corporation was dis-
honored and the payee was advised to try it for next
clearing. Upon verification, the bank noticed the error.
The P32,000 deposit posted in the account of Florencio
Amador was immediately transferred to the account
of Reyes upon being cleared by Florencio Amador
that he did not effect a deposit in the amount of
P32,000. Florencio Reyes filed an action and was
awarded damages by the lower courts.
The relevant issue before the Court was whether it
was the plaintiff's own negligence which was the
proximate cause of his injury.
The Court said:

The concept of proximate cause is well defined in our
corpus of jurisprudence as "any cause which, in natural
and continuous sequence, unbroken by any efficient
intervening cause, produces the result complained of
THE CAUSE 1301
and without which would not have occurred and from

which it ought to have been foreseen or reasonably
anticipated by a person of ordinary case that the injury
complained of or some similar injury, would result
therefrom as a natural and probable consequence."
In this case, the Court ruled that the proximate cause

of the injury was the negligence of Pilipinas Bank's
employee in erroneously posting the cash deposit of
Reyes in the name of another depositor who had a
similar first name.
To explain this ruling, the Court quoted the trial court:

Applying the test, the bank employee is, on that basis,
deemed to have failed to exercise the degree of care
required in the performance of his duties. As earlier
stated, the bank employee posted the cash deposit in the
account of Florencio Amador from his assumption that
the name Florencio appearing on the ledger without,
however, going through the full name, is the same
Florencio stated in the deposit slip. He should have
continuously gone beyond mere assumption, which
was proven to be erroneous, and proceeded with clear
certainty, considering the amount involved and the
repercussions it would create on the totality of the
person notable of which is the credit standing of the
person involved should a mistake happen. The checks
issued by the plaintiff in the course of his business were
dishonored by the bank because the ledger of Florencio
Reyes indicated a balance insufficient to cover the face
value of checks. (emphasis supplied)
However, it must be noted that the quoted paragraph

only explains why the bank employee was negligent,
but not why this negligence was the proximate cause.
2. Concurrent
An interesting issue is whether the proximate cause is

required to be the sole cause of the injury or whether
it can concur with other causes.
According to one case:
As a general rule, that negligence in order to render a

person liable need not be the sole cause of an injury. It
is sufficient that his negligence, concurring with one or
more efficient causes other than plaintiff's, is the
proximate cause of the injury.' 9 (emphasis supplied)
The statement implies that there is only one proximate

cause, but this may consist of two negligent acts con-
curring with each other.
In the same case; the Court also said:
where several causes combine to produce injuries,

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. 20 (emphasis supplied)
The purpose of the statement is not to define

proximate cause but to explain that the existence of
another efficient cause does not make a cause less
proximate. In the same case, the Court said:
19 FarEastern v. CA, G.R. No. 130068,1 October 1998.

2 Id.
THECAUSE I 303
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.21 (emphasis supplied)
Thus, jurisprudence recognizes the concept of con-

current causes or where there are "several causes
producing an injury ... and each is an efficient cause
without which the injury would not have happen-
ed."22 In such a case, "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."23
In Far Eastern Shipping v. CA, 24 the M/V Pavlodar,

owned and operated by the Far Eastern Sl ipping
Company ("Far Eastern") arrived at the Port of
Manila. The vessel was assigned Berth 4 of the Manila
International Port as its berthing space. Captain
Robert Abellana was tasked by the Philippine Ports
Authority ("PPA") to supervise the berthing of the
vessel. Captain Senen Gavino was assigned by the
Manila Pilots' Association ("MPA") to conduct dock-
ing maneuvers for the safe berthing of the vessel to
Berth No. 4. Thereafter:
21Id.
22Id.
23id.
24 Id.
304 I ANALYSIS OF PHIUPPINE LAW AND JUR1SPRUDENCE ON TORTS AND QUASI-DELiCTS
Gavino boarded the vessel at the quarantine anchorage

and stationed himself in the bridge, with the master of
the vessel, Victor Kavankov, beside him. After a briefing
of Gavino by Kavankov of the particulars of the vessel
and its cargo, the vessel lifted anchor from the qua-
rantine anchorage and proceeded to the Manila Intern-
ational Port. The sea was calm and the wind was ideal
for docking maneuvers.
When the vessel reached the landmark (the big church

by the Tondo North Harbor) one-half mile from the pier,
Gavino ordered the engine stopped. When the vessel
was already about 2,000 feet from the pier, Gavino
ordered the anchor dropped. Kavankov relayed the
orders to the crew of the vessel on the bow. The left
anchor, with two shackles, were dropped. However, the
anchor did not take hold as expected. The speed of the
vessel did not slacken. A commotion ensued between the
crew members. A brief conference ensued between
Kavankov and the crew members. When Gavino
inquired what was all the commotion about, Kavankov
assured Gavino that there was nothing to it.
After Gavino noticed that the anchor did not take hold,
he ordered the engines half-astern. Abellana, who was
then on the pier apron noticed that the vessel was
approaching the pier fast. Kavankov likewise noticed
that the anchor did not take hold. Gavino thereafter gave
the "full-astern" code. Before the right anchor and
additional shackles could be dropped, the bow of the
vessel rammed into the apron of the pier causing
considerable damage to the pier. The vessel sustained
damage too.
The PPA filed a complaint for a sum of money against

Far Eastern, Capt. Gavino and the MPA. The trial
court found the defendants solidarily liable to PPA for
THE CAUSE I 305
damages. The appellate court affirmed Far Eastern's

solidary liability.
Far Eastern argued that because the vessel was under

compulsory pilotage at the time of the incident, it was
the compulsory pilot, Capt. Gavino, who was in com-
mand and had complete control in the navigation and
docking of the vessel. Therefore, he was solely respon-
sible for the damage caused upon the pier and not the
owners of the vessel.
The Court found that both Capt. Gavino and Capt.

Kabankov were negligent. Regarding the solidary
liability of Far Eastern, the Court explained:
It may be said, as a general rule, that negligence in order

to render a person liable need not be the sole cause of
an injury. It is sufficient that his 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, 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. (emphasis sup-
plied)
In other words, the liability of one actor is not affected

by the negligence of another actor if both acts
comprise the proximate cause of the injury. Thus, if
"several causes combine" to produce injury, the actor
responsible for one cause is not absolved by the fact

that another actor is responsible for another cause.
The Court's statement implies that there is only one
proximate cause, but this may consist of several
combined causes. This implies that each cause
independently is incomplete to form the proximate
cause. Subsequently, the Court also said:
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.
Thus, where there are concurrent causes, recovery

may be had against any of the actors responsible for
any of the causes, provided that each cause is an
efficient cause. 25 This implies that each concurring
cause must by itself be a proximate cause. This seems
to be inconsistent with the earlier statement of the
Court that each concurrent cause is a component of
one proximate cause.
There is, therefore, a need to clarify the doctrine of

concurrent causes. In order to be a concurrent cause,
is it sufficient that it combines with another cause to
25A cause without which the injury would not have happened.
THE CAUSE I 307
form a proximate cause or must it independently be a

proximate cause by itself?26
A concurrent cause must also be clearly distinguished

from contributory negligence. Superimposing the
concept of concurrent cause on the Rakes distinction,
the rule could be restated thus:
A concurrent cause contributes to the accident itself

while contributory negligence contributes to the injury.
It is clear, however, that arguing that a person's

negligence is merely a concurring cause does not ab-
solve one of liability. The exception is when the defen-
dant argues that his negligence concurs with that of
the plaintiff. If successful, this is a complete defense
because the plaintiff's own negligence is the proxi-
mate cause of the injury.
3. Remote
A remote cause may be defined as a cause which

would have been a proximate cause, had there been
no efficient intervening cause after it and prior to the
injury. The remote cause is considered to only provide
a condition which made the injury possible, but it did
26 If one were to simply apply the "but for" test such that a cause is
proximate only if the injury would not have occurred without it, then
both requirements may be complied with. Concurrent causes would
therefore apply to those situations where the injury is a result of
multiple acts, each necessary to produce the result. The fact the one
act is indispensable to the infliction of the injury will not make the
other acts just as indispensable.
308 1 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASi-DEUCTS
not cause it. In Manila Electric v. Remoquillo,27 the

Court said:
A prior and remote cause cannot be made the basis of an
action if such remote cause did nothing more than
furnish the condition or give rise to the occasion by
which the injury was made possible, if there intervened
between such prior or remote cause and the injury a
distinct, successive, unrelated, and efficient cause of
the injury, even though such injury would not have
happened but for such condition or occasion. If no
danger existed in the condition except because of the
independent cause, such condition was not the proxi-
mate cause. And if an independent negligent act or
defective condition sets into operation the circumstances
which result in injury because of the prior defective
condition, such subsequent act or condition is the
proximate cause. 28 (emphasis supplied)
Based on what the Court said, a remote cause is a

negligent act which furnished a condition or gave rise
to an occasion which made the injury possible. But
this is not the proximate cause because there inter-
vened a distinct, unrelated, and efficient cause of an
injury. Therefore, what determines the existence of a
remote cause is not the nature of such cause itself but
whether or not there is an efficient intervening cause.
However, in at least one case, the Court looked at the

timing element in deciding that a cause is not
proximate but remote.
27
Manila Electic v. Remoquillo, G.R. No. L-8328,18 May 1956.
28Id.
THE CAUSE I 309
In Gabeto v. Araneta,29 Basilio Ilano and Proceso

Gayetano took a carromata near Plaza Gay to go to a
cockpit. Agaton Araneta stepped out into the street,
laid his hands on the reins, and stopped the horse. At
the same time, he protested to the driver that he
himself had called this carromatafirst. The driver, Julio
Pagnaya, replied that he had not heard or seen the call
of Araneta. At or about the same time, Pagnaya pulled
on the reins of the bridle to free the horse from the
control of Araneta in order that the vehicle might pass
on. The bit came out of the horse's mouth. Thus, it
became necessary for the driver to get out to fix the
bridle. The horse was then pulled over to near the
curb and Pagnaya tried to fix the bridle. The horse
became disturbed and moved forward, pulling one of
the wheels of the carromata up on the sidewalk and
pushing Julio Pagnaya over. The side of the carromata
struck a police telephone box, which came down with
a crash. The horse was frightened and ran up the
street at full speed. After the runaway horse had
proceeded up the street to a point in front of the
Mission Hospital, Gayetano jumped or fell from the
rig, and in so doing, received injuries from which he
soon died. Gayetano's widow filed an action for
damages against Araneta. The lower court awarded
damages.
The Court ruled that the mere fact that Araneta

interfered with the carromataby stopping the horse in
the manner stated would not make him liable for the
death of Gayetano. This was because it was admitted
29 Gabeto v. Araneta, G.R. No. 15674,17 October 1921.

310 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DEICTS
by Pagnaya that he afterwards got out of the

carromata and went to the horse's head to fix the
bridle. It added:
The evidence is furthermore convincing to the effect that,
after Julio Pagnaya alighted, the horse was conducted to
the curb and that an appreciable interval of time
elapsed-same witnesses say several minutes-before
the horse started on his career up the street.
It is therefore evident that the stopping of the rig by

Agaton Araneta in the middle of the street was too
remote from the accident that presently ensued to be
considered the legal or proximate cause thereof. More-
over, by getting out and taking his post at the head of the
horse, the driver was the person primarily responsible
for the control of the animal, and the defendant cannot
be charged with liability for the accident resulting from
the action of the horse thereafter. (emphasis supplied)
In this case, time and control over the vehicle was

determinative as to whether a particular act was
considered a proximate cause.
4. Intervening
An injury can result from the effect of two successive

negligent acts committed by two different actors. For
instance, a person may negligently leave an un-
covered container of kerosene near a vehicle. Another
person may then decide to light a match near the
container and throw the match into the container,
thinking that the liquid was water. If an explosion
occurs and it damages the vehicle, who should be
responsible for the loss? If the defendant is the person
who negligently left the kerosene, should he be
THECAUSE I 311
responsible for the fire, considering that it was

another person who lit the match? What is the scope
of the obligation of the actor who committed the first
negligent act? On one hand, why should he be
responsible for the negligent act of another? But on
the other hand, why should he be absolved by the
negligent act of another, if his negligent act made the
injury possible? Is he responsible for the intervening
cause or "[o]ne which comes into active operation in
producing the result after the negligence of the
defendant? ' 30
%
It seems that Philippine jurisprudence has adopted

the common law concept of intervening causes to
resolve this dilemma. 31
In common law, the test to determine if the defendant

is still liable despite an intervening cause is:
whether the intervention of the later cause is a
significant part of the risk involved in the defendant's
conduct, or is so reasonably connected with it that the
responsibility should not be terminated. 32 (emphasis
supplied)
3
o PROSSER AND KEEroN, supra note 3 at 301.
31 See Phoenix v. LAC, G.R. No. L-65295, 10 March 1987; see also
definition of proximate cause in Bataclan v. Medina, G.R. No. L-10126,
22 October 1957; Ilusorio v. CA, G.R. No. 139130, 27 November 2002;
BPI v. CA, G.R. No. 112392, 29 February 2000; Sabena v. CA, G.R. No.
104685, 14 March 1996; Fernando v. CA, G.R. No. 92087, 8 May 1992;
Stronghold v. CA, G.R. No. 83376,29 May 1989.
3
2 PROssER AND KEETON, supra note 3 at 302.
Thus, if the intervening cause is a "significant part of"

or is "reasonably connected with" the risk created by
the defendant, then the defendant is still liable.
Another way of putting this is that a defendant is still

liable if the succeeding negligent act is a forseeable
intervening cause. One case defines "forseeable inter-
vening causes" as follows:
Foreseeable Intervening Causes. If the intervening cause
is one which in ordinary human experience is reason-
ably to be anticipated, or one which the defendant has
reason to anticipate under the particular circumstances,
the defendant may be negligent, among other reasons,
because of failure to guard against it; or the defendant
may be negligent only for that reason.33 (emphasis
supplied)
The defendant is responsible for a foreseeable inter-

vening cause because such cause is "within the scope
of the original risk, and hence of the defendant's
negligence."34
The only time the defendant is not responsible is

when he could not foresee any danger of direct injury
35
or any risk from an intervening cause.
In Phoenix Construction v. IAC,36 at about 1:30 a.m.,

Leonardo Dionisio was on his way home from a
cocktails-and-dinner meeting with his boss. During
the cocktails phase of the evening, Dionisio had
Phoenix v. LAC, G.R. No. L-65295, 10 March 1987.

34PRossER AND KEETON, supra note 3 at 303.
3 Id. at 311.
36 Phoenix Constructionv. LAC, G.R. No. L-65295, 10 March 1987.
THECAUSE I 313
allegedly taken "a shot or two" of liquor. Dionisio was

speeding home and turned off his headlights because
he did not have a curfew pass. A Ford dump truck
owned by Phoenix Construction Inc. was parked on
the right hand side of General Lacuna Street facing the
oncoming traffic. The dump truck was parked askew
in such a manner as to stick out onto the street, partly
blocking the way of oncoming traffic. Earlier that
evening, the dump truck had been driven home by its
regular driver, Armando Carbonel, with the per-
mission of his employer Phoenix, in view of work
scheduled to be carried out early the following
morning. Dionisio claimed that he tried to avoid a
collision by swerving his car to the left, but it was too
late and his car smashed into the dump truck.
Dionisio filed an action for damages against Phoenix
and Carbonel. The lower courts ruled in favor of
Dionisio.
The Court found that Dioniso himself was negligent

but ruled that the proximate cause was the wrongful
or negligent manner in which the dump truck was
parked because of the negligence of Carbonel. It
explained:
That there was a reasonablerelationshipbetween petitioner
Carbonel's negligence on the one hand and the accident
and respondent's injuries on the other hand, is quite
clear. Put in a slightly different manner, the collision of
Dionisio's car with the dump truck was a natural and
foreseeable consequence of the truck driver's negligence.
It added:
The collision between the dump truck and the private
respondent's car would in all probabilitynot have occurred
had the dump truck not been parked askew without any
warning lights or reflector devices. The improper
parking of the dump truck created an unreasonablerisk of
injury for anyone driving down General Lacuna Street
and for having so created this risk, the truck driver must
be held responsible. In our view, Dionisio's negligence,
although later in point of time than the truck driver's
negligence and therefore closer to the accident, was not
an efficient intervening or independent cause. What
the petitioners describe as an "intervening cause" was
no more than a foreseeable consequence of the risk
created by the negligent manner in which the truck
driver had parked the dump truck. In other words, the
petitioner truck driver owed a duty to private res-
pondent Dionisio and others similarly situated not to
impose upon them the very risk the truck driver had
created. Dionisio's negligence was not of an independent
and overpowering nature as to cut, as it were, the chain
of causation in fact between the improper parking of the
dump truck and the accident, nor to sever the juris
vinculum of liability. (emphasis supplied)
The Court quoted Prosserand Keeton:

Foreseeable Intervening Causes. If the intervening cause
is one which in ordinary human experience is reason-
ably to be anticipated, or one which the defendant has
reason to anticipate under the particular circumstances,
the defendant may be negligent, among other reasons,
because of failure to guard against it; or the defendant
may be negligent only for that reason. Thus one who sets
a fire may be required to foresee that an ordinary, usual
and customary wind arising later will spread it beyond
the defendant's own property, and therefore to take
precautions to prevent that event. The person who leaves
THECAUSE 1 315
the combustible or explosive material exposed in a

public place may foresee the risk of fire from some
independent source.... In all of these cases, there is an
intervening cause combining with the defendant's
conduct to produce the result, and in each case, the
defendant's negligence consists in failure to protect the
plaintiff against that very risk.
Obviously, the defendant cannot be relieved from

liability by the fact that the risk or a substantial and
important part of the risk, to which the defendant has
subjected the plaintiff has indeed come to pass. Fore-
seeable intervening forces are within the scope of the
original risk, and hence of the defendant's negligence.
The courts are quite generally agreed that intervening
causes which fall fairly in this category will not
supersede the defendant's responsibility.
Thus it has been held that a defendant will be required to

anticipate the usual weather of the vicinity, including all
ordinary forces of nature such as usual wind or rain, or
snow or frost or fog or even lightning; that one who
leaves: an obstruction on the road or a railroad track
should foresee that a vehicle or a train will run into it; ....
The risk created by the defendant may include the

intervention of the foreseeable negligence of others....
[Tihe standard of reasonable conduct may require the
defendant to protect the plaintiff against 'that occasional
negligence which is one of the ordinary incidents of
human life, and therefore to be anticipated.' Thus, a
defendant who blocks the sidewalk and forces the
plaintiff to walk in a street where the plaintiff will be
exposed to the risks of heavy traffic becomes liable when
the plaintiff is run down by a car, even though the car is
negligently driven; and one who parks an automobile on
the highway without lights at night is not relieved of
responsibility when another negligently drives into it...
B. TESTS TO DETERMINE PROXIMATE CAUSE
If a negligent act needs to be the proximate cause of

an injury in order to make the negligent actor liable
for a quasi-delict, then a rule or test to determine
proximate cause is important.
1. But For
In common law, the preeminent test appears to be the
"but for" test, which states that:
An act or omission is not regarded as a cause of an event
if the particular event would have occurred without it.37
If the Bataclan definition of proximate cause is the

accepted definition in this jurisdiction, then the "but
for" would appear to be the preeminent test in this
jurisdiction as well. The Bataclan definition states:
that cause, which, in natural and continuous sequence,
the injury, and without which the result would not have
occurred.38
Despite the "but for" test's preeminence under com-

mon law, such courts have not rigorously required it
in cases involving multiple defendants or professional
misconduct.39 This is because "requiring definite
proof would effectively immunize culpable defend-
ants because of the difficulty of proving causation." 40
37
PROSSER AND KEETON, supranote 3 at 265.
3 Bataclan v. Medina, G.R. No. L-10126, 22 October 1957.
39
DLmoND, Er AL, UNDERSTANDiNG ToRmS 177 (2010).
40
Id.
THECAUSE I 317
In this jurisdiction, the answer to the problem of

multiple defendants appears to be the concept of
concurrent cause. But as discussed earlier in this
chapter, a fuller exposition of this concept is still
required.
2. Sufficient Link
In at least one case, there appears to be a relaxation of

the "but for" test. The Court said:
Plaintiff must, however, establish a sufficient link bet-
ween the act or omission and the damage or injury.
That link must not be remote or far-fetched; otherwise,
no liability will attach. The damage or injury must be a
natural and probable result of the act or omission. 41
(emphasis supplied)
The "sufficient link" requirement essentially requires

only some reasonable connection between the act or
omission and the injury. Like the "but for" test, it
requires that the injury must be a natural and prob-
able result of the act or omission. But it is not required
that it be shown that the injury would not have
occurred without the act or omission complained of.
In Dy Teban v. Jose Ching,42 Rogelio Ortiz was driving a

van owned by Dy Teban Trading, Inc. along the
National Highway. A passenger bus was cruising on
the opposite lane towards the van. In between, the
two vehicles was a parked prime mover with a trailer,
owned by Liberty Forest, Inc. Cresilito Limbaga, the
41 Dy Teban v. Jose Ching, G.R. No. 161803, 4 February 2008.

42Id.
driver of the prime mover, parked it askew,

occupying a substantial portion of the National
Highway, on the lane of the passenger bus. He parked
the prime mover with trailer at the shoulder of the
road with the left wheels still on the cemented
highway and the right wheels on the sand and gravel
shoulder of the highway. The prime mover did not
have the triangular, collapsible reflectorized plates,
which was the early warning device required. As
substitute, Limbaga placed a banana trunk with
leaves on the front and the rear portion of the prime
mover to warn incoming motorists. It was alleged that
Limbaga likewise placed kerosene lit tin cans on the
front and rear of the trailer. To avoid hitting the
parked prime mover occupying its lane, the incoming
passenger bus swerved to the right, onto the lane of
the approaching Nissan van. Ortiz saw two bright and
glaring headlights and the approaching passenger
bus. He pumped his break slowly, swerved to the left
to avoid the oncoming bus, but the van hit the front of
the stationary prime mover. The passenger bus hit the
rear of the prime mover. Dy Teban filed a complaint
for damages against Liberty Forest and Limbaga. The
trial court ruled that the proximate cause was "the
improper parking of the prime mover on the national
highway and the absence of an early warning device
on the vehicle." In contrast, the appellate court found
that the proximate cause was "the failure of the
Nissan van to give way or yield to the right of way of
the passenger bus."
THECAUSE 1 319
The Court found that Limbaga was utterly negligent

in parking the prime mover askew on the right side of
the National Highway.
The vehicle occupied a substantial portion of the national
road on the lane of the passenger bus. It was parked at
the shoulder of the road with its left wheels still on the
cemented highway and the right wheels on the sand and
gravel shoulder of the highway. It is common sense that
the skewed parking of the prime mover on the national
road posed a serious risk to oncoming motorists. It was
incumbent upon Limbaga to take some measures to
prevent that risk, or at least minimize it.
xxx xxx xxx
Limbaga also failed to take proper steps to minimize the

risk posed by the improperly parked prime mover. He
did not immediately inform his employer, private
respondent Liberty Forest, Inc., that the prime mover
suffered two tire blowouts and that he could not have
them fixed because he had only one spare tire. Instead of
calling for help, Limbaga took it upon himself to simply
place banana leaves on the front and rear of the prime
mover to serve as warning to oncoming motorists.
Worse, Limbaga slept on the prime mover instead of
standing guard beside the vehicle. By his own account,
Limbaga was sleeping on the prime mover at the time of
the collision and that he was only awakened by the
impact of the Nissan van and the passenger bus on the
prime mover.
The Court quoted the definitions of proximate cause

from Bataclan v. Medina:
Proximate cause is defined as that cause, which, in

natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury, and
without which the result would not have occurred. More
comprehensively, proximate cause is that cause act

first and producing the injury, either immediately or by
setting other events in motion, all constituting a natural
and continuous chain of events, each having a close
causal connection with its immediate predecessor. the
final event in the chain immediately effecting the injury
as natural and probable result of the cause which first
acted, under such circumstances that the person respon-
sible for the first event should, as an ordinarily prudent
and intelligent person, have reasonable ground to expect
at the moment of his act or default that an injury to some
person might probably result therefrom. (emphasis by
the Court)
The Court added:

There is no exact mathematical formula to determine
proximate cause. It is based upon mixed considerations
of logic, common sense, policy and precedent. Plaintiff
must, however, establish a sufficient link between the act
or omission and the damage or injury. That link must not
be remote or far-fetched; otherwise, no liability will
attach. The damage or injury must be a natural and
probable result of the act or omission. (citation omitted)
The Court again cited Bataclan v. Medina in arguing

that a '"necessary link that must be established
between the act or omission and the damage or
injury" and "that the damage or injury must be a
natural or probable result of the act or omission."
It ruled that:
the damage caused to the Nissan van was a natural and
probable result of the improper parking of the prime
mover with trailer. As discussed, the skewed parking of
the prime mover posed a serious risk to oncoming
motorists. Limbaga failed to prevent or minimize that
THE CAUSE I 321
risk. The skewed parking of the prime mover triggered

the series of events that led to the collision, particularly
the swerving of the passenger bus and the Nissan van.
Private respondents Liberty Forest, Inc. and Limbaga are

liable for all damages that resulted from the skewed
parking of the prime mover. Their liability includes
those damages resulting from precautionary measures
taken by other motorist in trying to avoid collision with
the parked prime mover. As we see it, the passenger bus
swerved to the right, onto the lane of the Nissan van, to
avoid colliding with the improperly parked prime
mover. The driver of the Nissan van, Ortiz, reacted
swiftly by swerving to the left, onto the lane of the
passenger bus, hitting the parked prime mover. Ortiz
obviously would not have swerved if not for the
passenger bus abruptly occupying his van's lane. The
passenger bus, in turn, would not have swerved to the
lane of the Nissan van if not for the prime mover
improperly parked on its lane. The skewed parking is the
proximate cause of the damage to the Nissan van.
3. Substantial Factor
Another test, which has been mentioned in one case,

is the substantial factor test. In this case, the Court
quoted the appellate court:
It is the rule under the substantial factor test that if the

actor's conduct is a substantial factor in bringing about
harm to another, the fact that the actor neither foresaw
nor should have foreseen the extent of the harm or the
manner in which it occurred does not prevent him from
being liable.43
43 The Court in Philippine Rabbit v. JAC, G.R. Nos. 66102-04, 30 August

1990, quoting the Intermediate Appellate Court which cited "Restate-
ment, Torts, 2d."
This common law test provides that, "[t]he defend-

ant's conduct is a cause of the event if it was a
material element and a substantial factor in bringing it
about."44
Thus, if a defendant's conduct was a substantial factor

in causing the plaintiff's injury, he will not be
absolved if other causes contributed to the injury.45
The problem with this test is that negligence is not a

substance that can be measured. The test presumes
that a person's negligence can be distinguished and
measured in comparison with other factors or other
negligent acts. In reality, however, this is not possible
when there are multiple actors and factors involved.
4. Mixed Considerations
A couple of fairly recent cases seem to refer to "mixed

considerations" in determining proximate cause.
These decisions state that:
There is no exact mathematical formula to determine
proximate cause. It is based upon mixed considerations
of logic, common sense, policy and precedent. 46
(emphasis supplied)
While this perhaps may describe more accurately

what actually happens when courts make a decision
on proximate cause, it may also be an admission that
44
PRossm AND KEeTON, supra note 3 at 267.
45 Id. at 268.
46 Dy Teban v. Jose Ching, G.R. No. 161803, 4 February 2008; Mercury
Drug v. Baking, G.R. No. 156037, 25 May 2007; Quezon City v. Dacara,
G.R. No. 150304,15 June 2005.
THE CAUSE I 323
there really is no test to determine proximate cause

and the Court can base its determination on anything
it sees fit. When the Court says that courts can make
use of "logic, common sense, policy and precedent," it
is saying that the courts can take any factor into
consideration. Determining proximate cause thereby
becomes a clear policy question on what the law and
the courts consider as the legal cause under a given
set of facts.
5. Cause v. Condition
Another rule that was mentioned but not applied in

one case was determining whether the negligent act
merely furnished a condition which made the injury
possible but was not its cause.
In Phoenix Construction v. IAC,47 the petitioners argued

that the truck driver's negligence was merely a
"passive and static condition" and that Dionisio's
negligence was an "efficient intervening cause," and
that consequently, Dionisio's negligence must be
regarded as the legal and proximate cause of the
accident rather than the earlier negligence of the truck
driver.
The Court noted that the arguments were drawn from

cases from the United States and was not persuaded
that these arguments had any validity in this
jurisdiction. It said that even in the United States, the
distinctions between "cause" and "condition" have
4 Phoenix Constructionv. LAC, G.R. No. L-65295, 10 March 1987.

already been "almost entirely discredited." It quoted
from Prosserand Keeton:
"Cause" and "condition." Many courts have sought to

distinguish between the active "cause" of the harm and
the existing "conditions" upon which that cause ope-
rated. If the defendant has created only a passive static
condition which made the damage possible, the defend-
ant is said not to be liable. But so far as the fact of
causation is concerned, in the sense of necessary ante-
cedents which have played an important part in
producing the result, it is quite impossible to dis-
tinguish between active forces and passive situations,
particularly since, as is invariably the case, the latter are
the result of other active forces which have gone before.
The defendant who spills gasoline about the premises
creates a "condition," but the act may be culpable
because of the danger of fire. When a spark ignites the
gasoline, the condition has done quite as much to bring
about the fire as the spark; and since that is the very risk
which the defendant has created, the defendant will not
escape responsibility. Even the lapse of a considerable
time during which the "condition" remains static will not
necessarily affect liability; one who digs a trench in the
highway may still be liable to another who falls into it a
month afterward. "Cause" and "condition" still find
occasional mention in the decisions; but the distinction
is now almost entirely discredited. So far as it has any
validity at all, it must refer to the type of case where the
forces set in operation by the defendant have come to
rest in a position of apparent safety, and some new
force intervenes. But even in such cases, it is not the
distinction between "cause" and "condition" which is
important, but the nature of the risk and the character of
the intervening cause. 48 (emphasis supplied)
48 Cited in the decision as "The Law on Torts" (5th ed., 1984), pp. 277-
278; italics supplied; footnotes omitted.
THE CAUSE I 325
6. Last Clear Chance
The Court has not explicitly employed the doctrine of

last clear chance as a test for proximate cause. But as
will be discussed further, it would seem that the
doctrine's place in this jurisdiction is, at best, a test for
proximate cause.
a. History and Rationale
The doctrine of last clear chance, which is of common

law origin, was first stated in 1842 in the English case
of Davies v. Mann,49 wherein:
the plaintiff left his ass fettered in the highway, and the
defendant drove into it. It was held that the plaintiff
might recover, not withstanding any negligence of his
own, if the defendant might, by proper care, have
avoided injuring the animal. 50
Thus, as originally stated, the doctrine allows for

recovery by a negligent plaintiff if the defendant
could have, by employing proper care, avoided the
injury.
One explanation for the rule is that if the defendant

has the last clear opportunity to avoid the harm, then
the plaintiff's negligence is not the proximate cause. 51
The problem with this explanation is that the
plaintiff's negligence may be a substantial and
important cause of his own injury and it cannot be
49
Cited in PROsER AND KEETON, supra note 3 at 463, as "1842, 10 M. &W.
546,152 Eng. Rep. 548."
50Id.
51Id.
326 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DEiuCTS
said that the defendant's negligence is not fully

within the risk created by the plaintiff.5 2 For instance,
if the defendant's negligence was a foreseeable
intervening cause, then the plaintiff's negligence
would still be the proximate cause.
Another explanation is that the latter negligence of

'3
the defendant "involves a higher degree of fault."
The idea is that the defendant's negligence is worse
than that of the plaintiff's negligence, because he
knew the risk and yet did nothing about it. This is
true if the defendant was aware of the plaintiff's
helpless situation 4 but not when he was unaware.55
The situation wherein the defendant is aware of the
plaintiff's helpless condition is sometimes called the
"doctrine of discovered peril"5 6 wherein the defend-
ant's fault is considered as "willful" or "wanton"
misconduct.5 7
The real explanation however is the "fundamental

dislike for the harshness of the contributory neg-
ligence defense."5 8 The existing rule under common
law at that time was that the contributory negligence
of the plaintiff bars him from recovery. Therefore, the
last clear chance rule was established to allow the
plaintiff to recover despite his negligence.
52 Id.
53Id.
54Id.
59 Id. at 464.
5 Id. at 465.
5 Id.
58 Id. at 464.
THE CAUSE 1 327
b. Statement of the Rule
Jurisprudence states the doctrine of last clear chance

in two ways. First, it is defined as to its effect on the
plaintiff's right to recover. Essentially, it is defined in
this manner:
the antecedent negligence of the plaintiff does not
preclude him from recovering damages caused by the
supervening negligence of the defendant, who had the
last fair chance to prevent the impending harm by the
exercise of due diligence. 59
Apart from the plaintiff not being precluded from

recovering, the Court in PhilippineBank of Commerce v.
CA 60 would add "or bar a defense against liability
sought by another."
In other cases, the Court would place as a condition

that the defendant "by exercising reasonable care and
prudence, might have avoided injurious conse-
quences"61 instead of "had the last fair chance to pre-
vent the impending harm by the exercise of due
diligence."
Second, the doctrine is also defined as a manner of

establishing the liability of defendant. The classic
formulation was stated in Picartv. Smith:62
59 PNR v. Brunty, G.R. No. 169891, 2 November 2006; Consolidated Bank v.

CA, G.R. No. 138569, 11 September 2003; Canlas v. CA, G.R. No.
112160,28 February 2000.
60 Philippine Bank of Commerce v. CA, G.R. No. 97626,14 March 1997.
61 Ong v. Metropolitan Water District, G.R. No. L-7664, 29 August 1958;
Bustamante v.CA, G.R. No. 89880, 6 February 1991.
62 Picartv. Smith, G.R. No. L-12219,15 March 1918.
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.63
Subsequent cases state the rule as:

a person who has the last clear chance or opportunity of
avoiding an accident, notwithstanding the negligent acts
of his opponent or that of a third person imputed to the
opponent is considered in law solely responsible for the
consequences of the accident. 64
More recently, the doctrine has been re-stated in this

manner:
where both parties are negligent, but the negligent act of

one is appreciably later in time than that of the other, or
when it is impossible to determine whose fault or
negligence should be attributed to the incident, the one
who had the last clear opportunity to avoid the
impending harm and failed to do so is chargeable with
the consequences thereof. 65
c. Application in this Jurisdiction
The last clear chance doctrine was imported into this

66
jurisdiction as early as 1918 through Picart v. Smith.
In this case, Amado Picart was riding his pony on a
63 Id.
64
Engada v. CA, G.R. No. 140698, 20 June 2003; Bustamante v. CA, G.R.
No. 89880,6 February 1991.
65
Lapanday v. Angala, G.R. No. 153076, 21 June 2007; PNR v. Brunty, G.R.
No. 169891, 2 November 2006; Consolidated Bank v. CA, G.R. No.
138569,11 September 2003; Canlas v. CA, G.R. No. 112160,28 February
2000; Philippine Bank of Commerce v. CA, G.R. No. 97626, 14 March
1997.
6Picartv. Smith, G.R No. L-12219,15 March 1918.
THE CAUSE 1 329
bridge when Frank Smith approached from the

opposite side in his automobile. Smith blew his horn
in warning several times because the pony was on the
wrong side of the road. But Picart, instead of going
left, went right. Picart did this because he thought he
did not have enough time to go to the other side.
Smith, on the other hand, assumed the pony would
move to its proper side, so he stayed on his course
without reducing his speed. When it came to the point
where there was no possibility for the horse to get to
the other side, Smith quickly turned his car
sufficiently to the right to escape hitting the horse.
But:
the automobile passed in such close proximity to the
animal that it became frightened and turned its body
across the bridge with its head toward the railing. In so
doing, it was 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 rider was thrown off with some violence.
From the evidence adduced in the case, we believe that
when the accident occurred the free space where the
pony stood between the automobile and the railing of
the bridge was probably less than one and one half
meters. As a result of its injuries the horse died.
After determining that Smith was negligent, the Court

pointed out that Picart himself was not free from fault,
for he was guilty of antecedent negligence in planting
himself on the wrong side of the road. But because
Smith was also negligent, the problem was deter-
mining which negligent act was immediately and
directly responsible. The Court noted that the negli-
gent acts of the two parties were not contempo-
raneous 67 because the negligence of the defendant

succeeded the negligence of the plaintiff by an
appreciable interval. 68 Thus, the Court established the
rule:
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.
Thus, in this case, the doctrine of last clear chance was

used a means to determine which negligent act was
the proximate cause of the injury. It was not employ-
ed to allow the negligent plaintiff to recover but to
point the blame to the defendant. 69 Thus, it may be
said that this common law doctrine was imported into
Philippine jurisprudence as early as Picartv. Smith.
But in 1987, the Court in Phoenix v. IAC 70 questioned

the applicability of the doctrine in this jurisdiction. In
this case, a Volkswagen driven by Leonardo Dionisio
collided with a parked truck owned by Phoenix
Construction. Phoenix argued that while its driver
was negligent in parking the truck askew, Dionisio
67
But it can also be argued that the negligent acts overlapped and were
at some point contemporaneous because the negligent act of Picart
was continuing as he did not move the pony from its negligently
placed position. So in determining the time sequence of negligent acts,
the Court only looked at when the negligent act began and not
necessarily when it ended.
68 But it must be noted based on the narration of facts that it was the
animal which was last to act and not Smith.
69 It does not appear the amount awarded was mitigated as a result of
the plaintiff's negligence.
7 Phoenix v. LAC, G.R. No. L-65295, 10 March 1987.
THE CAUSE I 331
had the "last clear chance" of avoiding the accident

and hence his injuries.
The Court said that although Picartvs. Smith imported

the common law doctrine of last clear chance into this
jurisdiction, "it is a matter for debate whether, or to
what extent, it has found its way into the Civil Code
of the Philippines." It explained:
The historical function of that doctrine in the common
law was to mitigate the harshness of another common
law doctrine or rule-that of contributory negligence.
The common law rule of contributory negligence
prevented any recovery at all by a plaintiff who was also
negligent, even if the plaintiff's negligence was relatively
minor as compared with the wrongful act or omission of
the defendant. The common law notion of last clear
chance permitted courts to grant recovery to a plaintiff
who had also been negligent provided that the
defendant had the last clear chance to avoid the casualty
and failed to do so. Accordingly, it is difficult to see
what role, if any, the common law last clear chance
doctrine has to play in a jurisdiction where the
common law concept of contributory negligence as an
absolute bar to recovery by the plaintiff, has itself been
rejected, as it has been in Article 2179 of the Civil Code
of the Philippines. (emphasis supplied)
Thus, the Court was saying that if the reason for the
rule did not exist in this jurisdiction, then there is no
reason to apply the rule here.
It added:
Is there perhaps a general concept of "last clear chance"
that may be extracted from its common law matrix and
utilized as a general rule in negligence cases in a civil
law jurisdiction like ours? We do not believe so. Under

Article 2179, the task of a court, in technical terms, is to
determine whose negligence-the plaintiff's or the
defendant's-was the legal or proximate cause of the
injury. That task is not simply or even primarily an
exercise in chronology or physics, as the petitioners
seem to imply by the use of terms like "last" or
'Intervening" or "immediate." The relative location in
the continuum of time of the plaintiff's and the
defendant's negligent acts or omissions, is only one of
the relevant factors that may be taken into account. Of
more fundamental importance are the nature of the
negligent act or omission of each party and the
character and gravity of the risks created by such act or
omission for the rest of the community. (emphasis
supplied)
The Court pointed out that the determination of the

proximate cause is not merely a question of deter-
mining which happened last. What is most important
is the nature of the negligent act and the character and
gravity of the risks created. 71
It is reasonable to base the determination of which
between two or more negligent acts is the proximate
cause on the egregiousness of the act. But it is perhaps
in cases where the gravity of the negligent acts are
7 The Court also said:

The petitioners urge that the truck driver (and therefore his employer)
should be absolved from responsiility for his own prior negligence
because the unfortunate plaintiff failed to act with that increased
diligence which had become necessary to avoid the peril precisely
created by the truck driver's own wrongful act or omission. (emphasis
supplied)
It must be said however that Dionisio was held by the Court to the
standard of ordinary diligence and was found to be negligent
THECAUSE 1 333
relatively equal where the doctrine of last clear chance

may apply.
In Glan v. IAC, 72 which was decided subsequent to

Phoenix v. IAC, the Court ruled that the last clear
chance doctrine was still valid. In this case, Orlando
Calibo, Agripino Roranes, and Maximo Patos were on
a jeep approaching a bridge while a cargo truck,
driven by Paul Zacarias, came from the opposite
direction. At about 59 yards after crossing the bridge,
the cargo truck and the jeep collided as a consequence
of which Calibo died while Roranes and Patos
sustained physical injuries. The heirs of Calibo filed a
complaint for damages against the owner and driver
of the cargo truck. The trial court dismissed the
complaint, but the appellate court reversed this
decision.
The Court absolved Zacarias of negligence and found

Calibo guilty of negligence.
The Court argued further that even if the negligence

on the part of Calibo is ignored and assuming some
antecedent negligence on the part of Zacarias in
failing to keep within his designated lane, the physical
facts would still absolve the latter of any actionable
responsibility for the accident under the rule of the
last clear chance. It explained:
Both drivers, as the Appellate Court found, had a full
view of each other's vehicle from a distance of one
hundred fifty meters. Both vehicles were travelling at a
7
2 Glan v. LAC, G.R. No. 70493,18 May 1989.
334 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DELiCTS
speed of approximately thirty kilometers per hour. The

private respondents have admitted that the truck was
already at a full stop when the jeep plowed into it. And
they have not seen fit to deny or impugn petitioners'
imputation that they also admitted the truck had been
brought to a stop while the jeep was still thirty meters
away. From these facts the logical conclusion emerges
that the driver of the jeep had what judicial doctrine
has appropriately called the last clear chance to avoid
the accident, while still at that distance of thirty meters
from the truck, by stopping in his turn or swerving his
jeep away from the truck, either of which he had suffi-
cient time to do while running at a speed of only thirty
kilometers per hour. In those circumstances, his duty
was to seize that opportunity of avoidance, not merely
rely on a supposed right to expect, as the Appellate
Court would have it, the truck to swerve and leave him a
clear path. (citations omitted, emphasis supplied)
The Court reiterated that:

The doctrine of the last clear chance provides as valid
and complete a defense to accident liability today as it
did when invoked and applied in the 1918 case of Picart
vs. Smith.
Therefore, the Court's misgivings in Phoenix v. LAC

over the applicability of the doctrine in this juris-
diction has not stopped it from applying the doctrine
in subsequent cases. 73
While it may be accurate to say that the original

reason for the doctrine (i.e. contributory negligence as
a complete bar to recovery) does not exist in this
jurisdiction, it may be employed as a test to determine
Canlas v. CA, G.R. No. 112160, 28 February 2000.

THE CAUSE I 335
the defendant's liability to a negligent plaintiff. In

essence, it is a test to determine whether it is the
negligence of the defendant that is the proximate
cause. The test would be if both plaintiff and
defendant were negligent, the actor who had the last
fair chance of avoiding the harm would be deemed to
have been responsible for the proximate cause of the
injury.
Applying the last clear chance doctrine as a means to

determine whether the negligent act of the plaintiff or
that of the defendant was the proximate cause of the
injury has been done in some cases such as the case of
Canlas v. CA.74 In this case, Osmundo Canlas and
Vicente Mafiosca decided to venture into business and
raise the capital needed. Canlas executed a Special
Power of Attorney authorizing Mafiosca to mortgage
two parcels of land covered by a transfer certificate of
title ("TCT') in his name and a TCT in the name of his
wife. Later, Canlas agreed to sell the said parcels of
land to Mafiosca for and in consideration of P850,000,
P500,000 of which was payable within one week and
the balance of P350,000 to serve as his investment in
the business. Thus, Canlas delivered to Mafiosca the
TCTs of the parcels of land involved. Mafiosca issued
two postdated checks in favor of Canlas in the
amounts of P40,000 and P460,000, respectively, but it
turned out that the check covering the biggei amount
was not sufficiently funded. Mafiosca was able to
mortgage the same parcels of land for P100,000 to a
74See e.g. Canlas v. CA, G.R. No. 112160, 28 February 2000; Lapanday v.
Angala, G.R. No. 153076,21 June 2007.
336 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUAsi-DELICTS
certain Attorney Manuel Magno, with the help of

impostors who misrepresented themselves as the
spouses Osmundo and Angelina Canlas. Mafiosca
was also granted a loan by Asian Savings Bank with
the use of subject parcels of land as security and with
the involvement of the same impostors who again
introduced themselves as the Canlas spouses. When
the loan it extended was not paid, the bank extra-
judicially foreclosed the mortgage. Canlas instituted a
case for annulment of deed of real estate mortgage.
The trial court annulled the deed of mortgage but was
reversed by the appellate court.
The Court ruled that the bank was negligent in

ascertaining or verifying the real identity of the couple
who introduced themselves as the spouses Canlas.
Though no identification card was exhibited by the
said impostors, the bank acted on their repre-
sentations simply on the basis of the residence
certificates bearing signatures which tended to match
the signatures affixed on a previous deed of mortgage
to a certain Atty. Magno, covering the same parcels of
land in question.
The Court applied the doctrine of last clear chance. It

said:
Assuming that Osmundo Canlas was negligent in giving
Vicente Mafiosca the opportunity to perpetrate the fraud,
by entrusting to latter the owner's copy of the transfer
certificates of title of subject parcels of land, it cannot be
denied that the bank had the last clear chance to prevent
the fraud, by the simple expedient of faithfully com-
plying with the requirements for banks to ascertain the
identity of the persons transacting with them.
THE CAUSE 337
The appellate ruled against Canlas, finding him a

party to the fraudulent scheme because he was
present when Mafiosca submitted to the bank his loan
application and the fact that Mafiosca introduced him
as "Leonardo Rey." The Court absolved him from
fraud because it was not proven that Canlas knew
what Mafiosca was doing. But the Court did rule that
Canlas was negligent, which made him undeserving
of attorney's fees.75
In Lapanday v. Angala,76 a crewcab driven by Apolonio

Deocampo collided with a pick-up owned by Michael
Angala and driven by Bernulfo Borres. Lapanday
Agricultural and Development Corp. ("Lapanday")
owned the crewcab, which was assigned to its
manager Mendez. Deocampo was the driver and
bodyguard of Mendez. Both vehicles were running
along Rafael Castillo St., Agdao, Davao City heading
north towards Lanang, Davao City. The left door,
front left fender, and part of the front bumper of the
pick-up were damaged. Angala alleged that his pick-
up was slowing down to about 5 to 10 kph and was
making a left turn preparatory to turning south when
it was bumped from behind by the crewcab, which
was running at around 60 to 70 kph. The crewcab
stopped 21 meters from the point of impact.
Deocampo alleged that the pick-up and the crewcab
he was driving were both running at about 40 kph.
The pick-up was running along the outer lane. The
75 It may be argued that this negligent act came after the negligent act of
the bank (not checking identification) and therefore Canlas had the
last clear chance.
76 Lapandayv. Angala, G.R. No. 153076,21 June 2007.
pick-up was about 10 meters away when it made a U-

turn towards the left. Deocampo testified that he did
not see any signal from the pick-up. Deocampo
alleged that he tried to avoid the pick-up, but he was
unable to avoid the collision. Deocampo stated that he
did not apply the brakes because he knew the
collision was unavoidable. Deocampo admitted that
he stepped on the brakes only after the collision.
Angala filed an action for damages against Lapanday,
its administrative officer Henry Berenguel and
Deocampo. The lower courts found Lapanday and
Deocampo liable.
The Court found that both parties were negligent in

this case and ruled that the doctrine of last clear
chance applied.
The Court found that Deocampo had the last clear

chance to avoid the collision because Deocampo was
driving the rear vehicle. Thus, he had full control of
the situation because he was in a position to observe
the vehicle in front of him.
Deocampo had the responsibility of avoiding bumping
the vehicle in front of him. A U-turn is done at a much
slower speed to avoid skidding and overturning,
compared to running straight ahead. Deocampo could
have avoided the vehicle if he was not driving very fast
while following the pick-up. Deocampo was not only
driving fast, he also admitted that he did not step on the
brakes even upon seeing the pick-up. He only stepped
on the brakes after the collision.
THE CAUSE 1339
While the last clear chance doctrine has been applied

in a number of cases, there are cases where it cannot
apply.
As pointed out by the Court in PNR v. Brunty,77 the

last clear chance doctrine does not apply once the
proximate cause of the injury has been established.
However, there are cases where the Court would still

rule on the issue involving last clear chance even after
the proximate cause has been established. In Phil Bank
of Commerce v. CA, 78 Rommel's Marketing Corporation
("RMC") maintained two separate current accounts in
Philippine Bank of Commerce ("PBC"). From May 5,
1975 to July 16, 1976, Romeo Lipana claimed to have
entrusted RMC funds in the form of cash totaling
P304,979.74 to his secretary, Irene Yabut, for the
purpose of depositing said funds in the current
accounts of RMC with PBC. It turned out, however,
that these deposits, on all occasions, were not credited
to RMC's account but were instead deposited to the
account of Yabut's husband Bienvenido Cotas, who
likewise maintained an account with the same bank.
During this period, PBC had been regularly furnish-
ing RMC with monthly statements showing its
current accounts balances. Unfortunately, it had never
been the practice of Romeo Lipana to check these
monthly statements of account, reposing complete
trust and confidence on PBC. Irene Yabut's modus
operandi involved accomplishing two copies of the
deposit slip: an original and a duplicate. The original

78 Phil Bank of Commerce v. CA, G.R. No. 97626,14 March 1997.
showed the name of her husband as depositor and his

current account number. On the duplicate copy was
written the account number of her husband but the
name of the account holder was left blank. PBC's
teller, Azucena Mabayad, would, however, validate
and stamp both the original and the duplicate of these
deposit slips, retaining only the original copy despite
the lack of information on the duplicate slip. The
second copy was kept by Irene Yabut allegedly for
record purposes. After validation, Yabut would then
fill up the name of RMC in the space left blank in the
duplicate copy and change the account number
written thereon and make it appear to be RMC's
account number. With the daily remittance records
also prepared by Ms. Yabut and submitted to RMC,
together with the validated duplicate slips with the
latter's name and account number, she made her
company believe that all the while the amounts she
deposited were being credited to its account when, in
truth and in fact, they were being deposited by her
and credited by PBC in the account of Cotas. This
went on for a span of more than one year without
RMC's knowledge. Upon discovery of the loss of its
funds, RMC demanded from PBC the return of its
money, but as its demand went unheeded, it filed a
collection suit. The lower courts found PBC negligent.
The Court found the bank teller negligent in valid-

ating, officially stamping and signing all the deposit
slips prepared and .presented by Ms. Yabut despite
the glaring fact that the duplicate copy was not com-
pletely accomplished, contrary to the self-imposed
procedure of the bank with respect to the proper
THE CAUSE I 341
validation of deposit slips, original or duplicate. The
Court also found the bank itself negligent in its
lackadaisical selection and supervision of its bank
teller. This was exemplified in the testimony of Mr.
Romeo Bonifacio, then Manager of the Pasig Branch of
the bank, to the effect that, while he ordered the
investigation of the incident, he never came to know
that blank deposit slips were validated in total
disregard of the bank's validation procedures.
The Court ruled that it was this negligence of the bank

teller, coupled by the negligence of the bank in the
selection and supervision of its bank teller, which was
the proximate cause of the loss suffered by RMC, and
not the latter's act of entrusting cash to a dishonest
employee, as insisted by the petitioners.
In determining the proximate cause in this case, the

Court appears to have employed the "but for" test
because it said:
absent the act of Ms. Mabayad in negligently validating

the incomplete duplicate copy of the deposit slip, Ms.
Irene Yabut would not have the facility with which to
perpetrate her fraudulent scheme with impunity.
In this case, despite the determination of the proxi-

mate cause of the injury, the Court still applied the
doctrine of last dear chance. It said:
under the doctrine of 'last clear chance" (also referred to,

at times as "supervening negligence" or as "discovered
peril"), petitioner bank was indeed the culpable party.
This doctrine, in essence, states that where both parties
are negligent, but the negligent act of one is appreciably
later in time than that of the other, or when it is

impossible to determine whose fault or negligence
should be attributed to the incident, the one who had the
last clear opportunity to avoid the impending harm and
failed to do so is chargeable with the consequences
thereof. Stated differently, the rule would also mean that
an antecedent negligence of a person does not preclude
the recovery of damages for the supervening negligence
of, or bar a defense against liability sought by another, if
the latter, who had the last fair chance, could have
avoided the impending harm by the exercise of due
diligence. (citations omitted)
The Court argued that even assuming that RMC was

negligent in entrusting cash to a dishonest employee,
thus providing the latter with the opportunity to
defraud the company, it cannot be denied that the
bank, through its teller, had the last clear opportunity
to avert the injury incurred by its client, simply by
faithfully observing their self-imposed validation
procedure. 79
However, the Court in the end mitigated the

damages awarded as if applying Article 2179.
In view of this, we believe that the demands of

substantial justice are satisfied by allocating the damage
on a 60-40 ratio. Thus, 40% of the damage awarded by
the respondent appellate court, except the award of
P25,000.00 attorney's fees, shall be borne by private
respondent RMC; only the balance of 60% needs to be
7 But it may be argued that RMC was also negligent in not reviewing
the bank statements. There is therefore a cycle of negligent acts
committed by the bank (negligence in validating incomplete slips)
and by RMC (negligence in not reviewing bank statements). If there is
a cyclical pattern of negligence, how then can the last dear chance
doctrine be applied?
THE CAUSE I 343
paid by the petitioners. The award of attorney's fees shall

be borne exclusively by the petitioners.
Another scenario where the doctrine of last clear

chance should not apply is in a case for culpa
contractual. In Consolidated Bank v. CA,80 L.C. Diaz
through its cashier, Macaraya, filled up a savings
(cash) deposit slip for P990 and a savings (checks)
deposit slip for P50. Macaraya instructed the
messenger of L.C. Diaz, Calapre, to deposit the money
with Solidbank. Macaraya also gave Calapre the
Solidbank passbook. Calapre went to Solidbank and
presented to Teller No. 6 the two deposit slips and the
passbook. The teller acknowledged receipt of the
deposit by returning to Calapre the duplicate copies
of the two deposit slips. Teller No. 6 stamped the
deposit slips with the words "DUPLICATE" and
"SAVING TELLER 6 SOLIDBANK HEAD OFFICE."
Since the transaction took time and Calapre had to
make another deposit for L.C. Diaz with Allied Bank,
he left the passbook with Solidbank. Calapre then
went to Allied Bank. When Calapre returned to
Solidbank to retrieve the passbook, Teller No. 6
informed him that "somebody got the passbook."
Calapre went back to L.C. Diaz and reported the
incident to Macaraya. Macaraya immediately pre-
pared a deposit slip in duplicate copies with a check
of P200,000. Macaraya, together with Calapre, went to
Solidbank and presented to Teller No. 6 the deposit
slip and check. The teller stamped the words "DUPLI-
CATE" and "SAVING TELLER 6 SOLIDBANK HEAD
80 ConsolidatedBank v. CA, G.R. No. 138569,11 September 2003.

344 1 ANALYSIS OF PH]UPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DELICTS
OFFICE" on the duplicate copy of the deposit slip.

When Macaraya asked for the passbook, Teller No. 6
told Macaraya that someone got the passbook but she
could not remember to whom she gave the passbook.
When Macaraya asked Teller No. 6 if Calapre got the
passbook, Teller No. 6 answered that someone shorter
than Calapre got the passbook. Calapre was then
standing beside Macaraya.
Failing to get back the passbook, Macaraya went back

to her office and reported the matter to the Personnel
Manager of L.C. Diaz, Emmanuel Alvarez. The
following day, 15 August 1991, L.C. Diaz, through its
Chief Executive Officer, Luis C. Diaz ("Diaz"), called
up Solidbank to stop any transaction using the same
passbook until L.C. Diaz could open a new account.
On the same day, Diaz formally wrote Solidbank to
make the same request. It was also on the same day
that L.C. Diaz learned of the unauthorized with-
drawal the day before, 14 August 1991, of P300,000
from its savings account. The withdrawal slip for the
P300,000 bore the signatures of the authorized
signatories of L.C. Diaz, namely Diaz and Rustico L.
Murillo. The signatories, however, denied signing the
withdrawal slip. A certain Noel Tamayo received the
P300,000. L.C. Diaz filed a Complaint for Recovery of
a Sum of Money against Solidbank. The trial court
absolved Solid Bank but the appellate court reversed
it.
The Court said:

The doctrine of last dear chance states that where both
parties are negligent but the negligent act of one is
THE CAUSE I 345
appreciably later than that of the other, or where it is

impossible to determine whose fault or negligence
caused the loss, the one who had the last clear
opportunity to avoid the loss but failed to do so, is
chargeable with the loss. Stated differently, the antece-
dent negligence of the plaintiff does not preclude him
from recovering damages caused by the supervening
negligence of the defendant, who had the last fair chance
to prevent the impending harm by the exercise of due
diligence. (citations omitted)
The Court did not apply the doctrine of last clear

chance. It explained:
Solidbank is liable for breach of contract due to negli-

gence in the performance of its contractual obligation to
L.C. Diaz. This is a case of culpa contractual, where
neither the contributory negligence of the plaintiff nor
his last clear chance to avoid the loss, would exonerate
the defendant from liability. Such contributory negli-
gence or last clear chance by the plaintiff merely serves
to reduce the recovery of damages by the plaintiff but
does not exculpate the defendant from his breach of
contract. (citations omitted)
The Court has also ruled that the last clear chance
doctrine is not available as a defense of a common
carrier which collided with another vehicle, against an
injured passenger. In Bustamante v. CA,81 a collision
occurred between a truck driven by Edilberto
Montesiano and owned by Federico Del Pilar and a
passenger bus driven by Susulin. The front left side
portion of the truck sideswiped the left sidewall of the
passenger bus, ripping off the said wall from the
driver's seat to the last rear seat. Several passengers of
81 Bustamante v. CA, G.R. No. 89880,6 February 1991.

the bus were thrown out and died as a result of the

injuries they sustained. Immediately before the
collision, the truck and the passenger bus were
approaching each other, coming from the opposite
directions of the highway. While the truck was still
about 30 meters away, Susulin, the bus driver, saw the
front wheels of the vehicle wiggling. He also observed
that the truck was heading towards his lane. Not
minding this circumstance due to his belief that the
driver of the truck was merely joking, Susulin shifted
from fourth to third gear in order to give more power
and speed to the bus, which was ascending the
inclined part of the road, in order to overtake or pass a
Kubota hand tractor being pushed by a person along
the shoulder of the highway. While the bus was in the
process of overtaking or passing the hand tractor and
the truck was approaching the bus, the two vehicles
sideswiped each other at each other's left side. After
the impact, the truck skidded towards the other side
of the road and landed on a nearby residential lot,
hitting a coconut tree and felling it. The heirs of the
deceased passengers filed a complaint. The trial court
found the negligent acts of both drivers combined
with each other in directly causing the accident and it
could not be determined from the evidence that it was
only the negligent act of one of them which was the
proximate cause of the collision. Thus, it held the
owners and drivers of both vehicles solidarily liable
for damages. From this decision, only Federico del
Mar and Edilberto Montesiano, the owner and driver
of the truck, interposed an appeal. The appellate court
reversed the decision as far as the appellants were
concerned. It found that "the bus driver had the last
THE CAUSE 1 347
clear chance to avoid the collision and his reckless

negligence in proceeding to overtake the hand tractor
was the proximate cause of the collision."
The Court cited the case of Philippine Rabbit Bus Lines,

Inc. v. Intermediate Appellate Court, et al.82 where the
Court in turn cited Anuran, et al. v. Buno, et al.83 where
it was ruled that the doctrine of "last clear chance"
applies in a suit between the owners and drivers of
colliding vehicles but not where a passenger demands
responsibility from the carrier to enforce its con-
tractual obligations. This is because it would be
inequitable to exempt the negligent driver of the
common carrier on the ground that the other driver
was likewise guilty of negligence.
Citing American Jurisprudenceagain, the Court said:

Furthermore, "as between defendants: The doctrine
cannot be extended into the field of joint tortfeasors as a
test of whether only one of them should be held liable to
the injured person by reason of his discovery of the
latter's peril, and it cannot be invoked as between
defendants concurrently negligent. As against third
persons, a negligent actor cannot defend by pleading
that another had negligently failed to take action which
could have avoided the injury."
After citing all of these principles, the Court ruled that

the appellate court committed an error of law in
applying the doctrine of last clear chance as between
the defendants because this case was not a suit
8
2Cited in this case as Philippine Rabbit Bus Lines, Inc. v. Intermediate
Appellate Court,et al. G.R. Nos. 66102-04,30 August 1990.
83 Cited in this case as "Anuran,et al. v. Buno, et al., 123 Phil. 1073."
between the owners and drivers of the colliding

vehicles but a suit brought by the heirs of the
deceased passengers against both owners and drivers
of the colliding vehicles.
The Court has also ruled that the last clear chance
doctrine does not apply if the defendant had no
opportunity to avoid the injury, such as when he had
to act instantaneously. This lack of opportunity may
be because he was not aware of the danger or could
not have been made aware despite due diligence. In
Pantranco v. Baesa,84 spouses Ceasar and Marilyn
Baesa and their children, together with spouses David
and Fe Ico, their son and seven other persons, were
aboard a passenger jeepney driven by David Ico. A
speeding Pantranco bus encroached on the jeepney's
lane while negotiating a curve and collided with it. As
a result of the accident, David Ico, spouses Baesa and
two of their three children died while the rest of the
passengers suffered injuries. The jeepney was
extensively damaged. After the accident, the driver of
the Pantranco Bus, Ambrosio Ramirez, boarded a car
and proceeded to Santiago, Isabela. From that time on,
Ramirez has never been seen and has apparently
remained in hiding. Maricar Baesa, through her
guardian Francisca Bascos, and Fe Ico, for herself and
for her minor children, filed separate actions for
damages arising from quasi-delict against Pantranco.
The lower court awarded damages to the plaintiffs.
84
Pantrancov. Baesa, G.R Nos. 79050-51,14 November 1989.
THE CAUSE 1 349
Pantrangco argued that it was the driver of the

passenger jeepney who had the last clear chance to
avoid the collision and was therefore negligent in
failing to utilize with reasonable care and competence
his then existing opportunity to avoid the harm.
The Court ruled that the doctrine of last clear chance

was not applicable in this case. It explained:
For the doctrine to be applicable, it is necessary to show

that the person who allegedly had the last opportunity
to avert the accident was aware of the existence of the
peril or should, with exercise of due care, have been
aware of it. One cannot be expected to avoid an accident
or injury if he does not know or could not have known
the existence of the peril. (emphasis supplied)
The Court found that there was nothing to show that

the jeepney driver David Ico knew of the impending
danger.
When he saw at a distance that the approaching bus was
encroaching on his lane, he did not immediately swerve
the jeepney to the dirt shoulder on his right since he
must have assumed that the bus driver will return the
bus to its own lane upon seeing the jeepney approaching
from the opposite direction. As held by this Court in the
case of Vda. De Bonifacio v. BLTB, G.R. No. L-26810,
August 31, 1970, 34 SCRA 618, a motorist who is
properly proceeding on his own side of the highway is
generally entitled to assume that an approaching
vehicle coming towards him on the wrong side, will
return to his proper lane of traffic. There was nothing to
indicate to David Ico that the bus could not return to its
own lane or was prevented from returning to the proper
lane by anything beyond the control of its driver.
(emphasis supplied)
350 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DELCTS
The Court also held that.
Moreover, both the trial court and the Court of Appeals

found that at the time of the accident the Pantranco bus
was speeding towards Manila. By the time David Ico
must have realized that the bus was not returning to its
own lane, it was already too late to swerve the jeepney to
his right to prevent an accident. The speed at which the
approaching bus was running prevented David Ico from
swerving the jeepney to the right shoulder of the road in
time to avoid the collision. Thus, even assuming that the
jeepney driver perceived the danger a few seconds
before the actual collision, he had no opportunity to
avoid it. This Court has held that the last clear chance
doctrine "can never apply where the party charged is
required to act instantaneously, and if the injury
cannot be avoided by the application of all means at
hand after the peril is or should have been discovered."
(citation omitted, emphasis supplied)
In Engada v. CA, 8s the Court again applied the similar

rule. In this case, Edwin Iran was driving a Toyota
Tamaraw jeepney bound for Iloilo City. Sheila Seyan,
the registered owner of the Tamaraw, was on board.
While traversing the road, the Tamaraw passengers
allegedly saw from the opposite direction a speeding
Isuzu pick-up, driven by Rogelio Engada, which had
just negotiated a hilly gradient on the highway. When
it was just a few meters away from the Tamaraw, the
Isuzu pick-up's right signal light flashed, at the same
time, it swerved to its left, encroaching upon the lane
of the Tamaraw and headed towards a head-on
collision course with it. Seyan shouted at Iran to avoid
the pick-up. Iran swerved to his left but the pick-up
Engada v. CA, G.R. No. 140698, 20 June 2003.

THE CAUSE 1351
also swerved to its right. Thus, the pick-up collided

with the Tamaraw, hitting the latter at its right front
passenger side. The impact caused the head and
chassis of the Tamaraw to separate from its body.
Seyan was thrown out of the Tamaraw and landed on
a ricefield. The pick-up stopped diagonally astride the
center of the road. A criminal case was filed against
Engada, charging him with serious physical injuries
and damage to property through reckless impru-
dence. The lower courts found Engada guilty.
The Court found no convincing evidence to support

his invocation of the doctrine. Instead, the Court
found the presence of an emergency and the proper
application of the emergency rule.
Petitioner's act of swerving to the Tamaraw's lane at a
distance of 30 meters from it and driving the Isuzu pick-
up at a fast speed as it approached the Tamaraw, denied
Iran time and opportunity to ponder the situation at all.
There was no clear chance to speak of. Accordingly, the
Court of Appeals did not err in holding petitioner
responsible for the vehicular collision and the resulting
damages, including the injuries suffered by Mrs. Sheila
86
Seyan and the total loss of the Tamaraw jeepney.
Another significance of this case is the fact that the

Court found no problem applying the doctrine of last
clear chance to a criminal case.
86 Engada v. CA, G.R. No. 140698, 20 June 2003.

THE CAUSE I 353
Citation:
Tue Apr 17 10:46:22 2018



VI. Persons Vicariously Liable
Article 2180 provides that the liability for quasi-delicts

is demandable not only against the person who
committed the act, but also against the person
responsible for the said actor. This liability of certain
persons who are responsible for the negligence of
others is referred to as vicariousliability.
In Cangco v. Manila Railroad,' the Court, referring to
the precursor of Article 2180, said:
With respect to extra-contractual obligation arising from
negligence, whether of act or omission, it is competent
for the legislature to elect-and our Legislature has so
elected-to limit such liability to cases in which the
person upon whom such an obligation is imposed is
morally culpable or, on the contrary, for reasons of
public policy, to extend that liability, without regard to
the lack of moral culpability, so as to include respon-
sibility for the negligence of those persons whose acts or
omissions are imputable, by a legal fiction, to others who
are in a position to exercise an absolute or limited
control over them. The legislature which adopted our
Civil Code has elected to limit extra contractual
liability-with certain well-defined exceptions-to cases
in which moral culpability can be directly imputed to
the persons to be charged. This moral responsibility
may consist in having failed to exercise due care in one's
own acts, or in having failed to exercise due care in the
selection and control of one's agents or servants, or in
the control of persons who, by reason of their status,
occupy a position of dependency with respect to the
I Cangco v. Manila Railroad,G.R. No. 12191,14 October 1918.
354
PERsONSVICARjOUSLY UALE I 355
person made liable for their conduct. 2 (emphasis

supplied)
Thus, the reason why those vicariously liable under

Article 2180 are responsible is because they are
morally culpable for those under their "absolute or
limited control."
Article 2180 provides for six categories of vicarious

liability.
Person Vicariously Liable Actor
Father, but in case of death minor children who live in
or incapacity, the mother their company
Guardians minors or incapacitated
persons who are under
their authority and live in
their company
Owners and managers of employees in the service of
an establishment or the branches in which the
enterprise latter are employed or on
the occasion of their
functions
Employers employees and household
helpers acting within the
scope of their assigned
tasks, even though the
former are not engaged in
any business or industry
State special agent
Teachers or heads of pupils and students or
establishments of arts and apprentices, so long as they
trades remain in their custody
2 Id.
Thus, when the actor commits a quasi-delict, the

person who is vicariously liable is solidarily liable
with him. But, Article 2180 also provides that the
responsibility under the article ceases when the
persons vicariously liable prove that they observed all
the diligence of a good father of a family to prevent
damage.
A. PERSONS EXERCISING PARENTAL AumoRTY
1. Parents
The Court has explained that parental liability is "a

natural or logical consequence of the duties and
responsibilities of parents-their parental authority-
which includes the instructing, controlling and disci-
plining of the child."'3 Thus, parental liability is based
on parental authority.
The liability of parents is based on a presumption of

negligence on their part if their child under their
parental authority causes injury. The Court has ex-
plained that:
The civil law assumes that when an unemancipated child
living with its parents commits a tortious act, the parents
were negligent in the performance of their legal and
natural duty closely to supervise the child who is in their
custody and control. Parental liability is, in other words,
anchored upon parental authority coupled with pre-
sumed parental dereliction in the discharge of the duties
accompanying such authority. The parental dereliction
is, of course, only presumed and the presumption can be
overturned under Article 2180 of the Civil Code by proof
3 Tamargo v. CA, G.R. No. 85044,3 June 1992.

PERSONS VICARIOUSLY LABLE 1357
that the parents had exercised all the diligence of a good

4
father of a family to prevent the damage.
Article 2180 provides that the father and in case of his

death or incapacity, the mother are responsible for
quasi-delicts committed by their minor children who
live in their company. However, Article 2215 of the
Family Code amended Article 2180 such that both
parents are now liable and not the father primarily. It
also adds the requirement that the minor must be
under the parent's parental authority.
Jurisprudence has clarified that the liability of parents

under Article 2180 is primary and subject to the
6
defense of lack of fault or negligence on their part.
As to what is required of parents:
The diligence of a good father of a family required by

law in a parent and child relationship consists, to a large
extent, of the instruction and supervision of the child?'
In Libi v. IAC, 8 Julie Ann Gotiong and Wendell Libi

were sweethearts until Julie Ann broke up with
Wendell. Wendell kept pestering Julie Ann with
demands for reconciliation, but the latter persisted in
her refusal, prompting the former to resort to threats
4 Id.
5 ARTICLE 221. Parents and other persons exercising parental
authority shall be civilly liable for the injuries and damages caused by
the acts or omissions of their unemancipated children living in their
company and under their parental authority subject to the appropriate
defenses provided by law. (2180[2]a and [4]a).
6 Libi v. LAC, G.R No. 10890,18 September 1992.
7 Id.
8 Id.
against her. In order to avoid him, Julie Ann stayed in

the house of her best friend. Later, Julie Ann and
Wendell died, each from a single gunshot wound
inflicted with the same firearm licensed in the name of
Cresencio Libi, which was recovered from the scene of
the crime inside the Gotiong residence. The parents of
Julie Ann filed suit against the parents of Wendell to
recover damages arising from the latter's vicarious
liability. The trial court dismissed the complaint, but
the appellate court reversed it.
The Court found that the spouses Libi's defense that

they had exercised the due diligence of a good father
of a family was not borne out by the evidence on
record. Amelita Libi, mother of Wendell, testified that
her husband, Cresencio, owned a gun that he kept in a
safety deposit box inside a drawer in their bedroom,
for which each of them held a key. Amelita's key was
always in her bag. Wendell knew all of these facts.
Although they had never seen their son Wendell
taking or using the gun, she admitted that on that
fateful night, the gun was no longer in the safety
deposit box. Thus, the Court did not believe that the
spouses had been exercising the diligence of a good
father of a family by safely locking the fatal gun away
because Wendell could not have gotten hold of the
gun unless one of the keys to the safety deposit box
was negligently left lying around or he had free access
to the bag of his mother where the other key was.
PERSONS ViCAmOUSLY ALE I 359
The diligence of a good father of a family required by

law in a parent and child relationship consists, to a large
extent, of the instruction and supervision of the child.
The Court ruled that the spouses Libi "were gravely

remiss in their duties as parents in not diligently
supervising the activities of their son, despite his
minority and immaturity." It pointed out that it was
only at the time of Wendell's death that they allegedly
discovered that he was a CANU 9 agent and that
Cresencio's gun was missing from the safety deposit
box. Thus:
Both parents were sadly wanting in their duty and

responsibility in monitoring and knowing the activities
of their children who, for all they know, may be engaged
in dangerous work such as being drug informers, or
even drug users. Neither was a plausible explanation
given for the photograph of Wendell, with a handwritten
dedication to Julie Ann at the back thereof, 18 holding
upright what clearly appears as a revolver and on how
or why he was in possession of that firearm.
We believe that the civil liability of parents for quasi-

delicts of their minor children, as contemplated in Article
2180 of the Civil Code, is primary and not subsidiary. In
fact, if we apply Article 2194 of said code which provides
for solidary liability of joint tortfeasors, the persons
responsible for the act or omission, in this case the minor
and the father and, in case of his death of incapacity, the
mother, are solidarily liable. Accordingly, such parental
9 Constabulary Anti-Narcotics Unit

liability is primary and not subsidiary, hence the last

paragraph of Article 2180 provides that "(t)he
responsibility treated of in this Article shall cease when
the persons herein mentioned prove that they observed
all the diligence of a good father of a family to prevent
damages."
In Tamargo v. CA, 10 Adelberto Bundoc, then a minor of

10 years of age, shot Jennifer Tamargo with an air
rifle, causing injuries which resulted in her death. A
civil complaint for damages was filed by Macario
Tamargo, Jennifer's adopting parent, and spouses
Celso and Aurelia Tamargo, Jennifer's natural pa-
rents, against spouses Victor and Clara Bundoc,
Adelberto's natural parents with whom he was living
at the time of the tragic incident. In addition to this
case for damages, a criminal information for Homi-
cide through Reckless Imprudence was filed against
Adelberto Bundoc. Adelberto, however, was acquitted
and exempted from criminal liability on the ground
that he had acted without discernment. Prior to the
incident, the spouses Rapisura had filed a petition to
adopt Adelberto. This petition for adoption was
granted after Adelberto had shot and killed Jennifer.
Spouses Bundoc, Adelberto's natural parents, reciting
the result of the foregoing petition for adoption,
claimed that not they, but rather the adopting parents,
namely the spouses Sabas and Felisa Rapisura, were
indispensable parties to the action since parental
authority had shifted to the adopting parents from the
moment the successful petition for adoption was filed.
The trial court dismissed the complaint, ruling that
10 Tamargov. CA, G.R No. 85044,3 June 1992.

PERSONS VicmousLY I8LE I 361
the natural parents of Adelberto indeed were not

indispensable parties to the action. The appellate
court dismissed the appeal on procedural grounds.
The Court ruled that the shooting of Jennifer by

Adelberto with an air rifle occurred when parental
authority was still lodged in Bundoc spouses, the
natural parents of the minor Adelberto. It would thus
follow that the natural parents who had then actual
custody of the minor Adelberto were the
indispensable parties to the suit for damages.
The Court did not agree that the adoption should be

given retroactive effect. It said:
We do not believe that parental authority is properly

regarded as having been retroactively transferred to and
vested in the adopting parents, the Rapisura spouses, at
the time the air rifle shooting happened. We do not
consider that retroactive effect may be given to the
decree of adoption so as to impose a liability upon the
adopting parents accruing at a time when the adopting
parents had no actual or physical custody over the
adopted child. Retroactive effect may perhaps be given
to the granting of the petition for adoption where such is
essential to permit the accrual of some benefit or
advantage in favor of the adopted child. In the instant
case, however, to hold that parental authority had been
retroactively lodged in the Rapisura spouses so as to
burden them with liability for a tortious act that they
could not have foreseen and which they could not have
prevented (since they were at the time in the United
States and had no physical custody over the child
Adelberto) would be unfair and unconscionable. Such a
result, moreover, would be inconsistent with the
philosophical and policy basis underlying the doctrine of
vicarious liability. Put a little differently, no pre-
362 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QuASI-DELIcTs
sumption of parental dereliction on the part of the

adopting parents, the Rapisura spouses, could have
arisen since Adelberto was not in fact subject to their
control at the time the tort was committed. (emphasis
supplied)
2. Guardians
Article 2180 provides that guardians are liable for

quasi-delicts caused by minors or incapacitated per-
sons who are under their authority and live in their
company.
3. Other Persons Exercising Parental Authority
Article 221 of the Family Code provides that persons

exercising parental authority are civilly liable for the
injuries and damages caused by the acts or omissions
of their minor children living in their company and
under their parental authority, subject to the appro-
priate defenses provided by law.
Article 216 of the Family Code provides that as a

general rule, in default of parents or a judicially
appointed guardian, the following persons exercise
substitute parental authority over the child in the
order indicated:
a. The surviving grandparent;

b. The oldest brother or sister, over 21 years of
age, unless unfit or disqualified; and
PERSONSVICAOUSLYLM.LE I 363
c. The child's actual custodian, over 21 years of

age, unless unfit or disqualified."
Article 217 of the Family Code provides that in case of

foundlings, abandoned, neglected or abused children
and other children similarly situated, parental autho-
rity shall be entrusted in summary judicial pro-
ceedings to heads of children's homes, orphanages
and similar institutions duly accredited by the proper
12
government agency.
B. TEACHERS AND SCHOOLS
1. Under the Civil Code
Under 2180 of the Civil Code, teachers or heads of

establishments of arts and trades are liable for quasi-
delicts caused by their pupils and students or
apprentices, so long as they remain in their custody.
The Court has explained that the basis of the "liability

of school heads and teachers for the tortious acts of
their pupils and students ...is that they stand, to a
certain extent, as to their pupils and students, in loco
parentis and are called upon to 'exercise reasonable
supervision over the conduct of the child.""1 3 The
Court added:
In the law of torts, the governing principle is that the
protective custody of the school heads and teachers is
mandatorily substituted for that of the parents, and
11 Article 216.
12 Article 217.
13
Palisoc v.Brillantes,G.R. No. L-29025, 4 October 1971.
364 1 ANLYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DEUCTS
hence, it becomes their obligation as well as that of the

school itself to provide proper supervision of the
students' activities during the whole time that they are at
attendance in the school, including recess time, as well as
to take the necessary precautions to protect the students
in their custody from dangers and hazards that would
reasonably be anticipated, including injuries that some
student themselves may inflict willfully or through
negligence on their fellow students. 14
The Court has also clarified that the phrase "so long as
they remain in their custody" refers to the protective
and supervisory custody that the school and its heads
and teachers exercise over the pupils and students for
as long as they are in attendance in the school,
including recess time, and that it is not required that
for such liability to attach, the pupil or student who
commits the tortious act must live and board in the
school.15
In another case, the Court ruled that the student is in

the custody of the school authorities as long as he is
under the control and influence of the school and
within its premises, whether the semester has not yet
begun or has already ended.' 6
However, in a subsequent case, the Court ruled that:

the mere fact of being enrolled or being in the premises
of a school without more does not constitute "attending
school" or being in the "protective and supervisory
custody" of the school, as contemplated in the law.
14 Id.
I Id.
16 Amdora v. CA, G.R. No. L-47745,15 April 1988.
PERSONS VICAOUSLY L.LE I 365
Article 2180 applies to all schools, academic as well as

non-academic. 17 But when the school is academic,
responsibility for the tort committed by the student
will attach to the teacher in charge of such student,
following the first part of the provision. 18 But in the
case of establishments of arts and trades, it is the head
who shall be held liable. 19 The Court added:
As long as it can be shown that the student is in the

school premises in pursuance of a legitimate student
objective, in the exercise of a legitimate student right,
and even in the enjoyment of a legitimate student right,
and even in the enjoyment of a legitimate student
privilege, the responsibility of the school authorities over
the student continues. Indeed, even if the student should
be doing nothing more than relaxing in the campus in
the company of his classmates and friends and enjoying
the ambience and atmosphere of the school, he is still
within the custody and subject to the discipline of the
school authorities under the provisions of Article 2180.20
While the student is under the custody of the aca-

demic institution, the teacher-in-charge must answer
for his students' torts, in practically the same way that
the parents are responsible for the child when he is in
their custody.21 According to the Court, the teacher-in-
charge is the one designated by the dean, principal, or
other administrative superior to exercise supervision
17 Id.
18 Id.
19 Id. Interestingly, in Palisoc v. Billantes, G.R. No. L-29025, 4 October
1971, the Court held both "head" and "teacher" liable for injury
caused to a fellow pupil by a student in a non-academic institution.
2 Id.
2 Id.
366 ANALYSIS OF PHiUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DELCTS
over the pupils in the specific classes or sections to

which they are assigned. 22
In order to be liable, it is not necessary that the teacher

be physically present and in a position to prevent the
injury because custody does not connote immediate
and actual physical control but refers more to the
influence exerted on the child and the discipline
instilled in him as a result of such influence. 23 Thus, the
Court has ruled that "for the injuries caused by the
student, the teacher and not the parent shall be held
responsible if the tort was committed within the
premises of the school at any time when its authority
could be validly exercised over him."24
The Court has clarified that Article 2180 does not

require that the offending student be of minority age
because the teacher is held answerable by the law for
the act of the student under him regardless of the
student's age.25
In Palisoc v. Brillantes,26 Virgilio Daffon killed his fellow

student, Dominador Palisoc, at the laboratory room of
Manila Technical Institute ("MTI") during recess.
Dominador's father sued Antonio Brillantes, a member
of the Board of Directors of MTI, Teodosio Valenton,
the president, Santiago Quibulue, instructor of the class
to which the deceased belonged, and Daffon. The trial
22Id.
23Id.
24Id.
25Id.
26
Palisocv. Brillantes,G.R No. L-29025, 4 October 1971.
PERSONS VICARIOUSLY LALE I 367
court held Daffon liable but absolved the three officials

of the school.
The Court ruled that under Article 2180, the head and
teacher of MTI (Valenton and Quibulue) are liable
jointly and severally for damages to Dominador's
parents for the death of the latter's minor son at the
hands of Daffon at the school's laboratory room. It
also ruled that Brillantes was not liable as a mere
member of the school's board of directors. The school
itself could not be held similarly liable because it was
not properly impleaded as party defendant.

The rationale of such liability of school heads and
teachers for the tortious acts of their pupils and students,
so long as they remain in their custody, is that they
stand, to a certain extent, as to their pupils and stu-
dents, in loco parentis and are called upon to "exercise
reasonable supervision over the conduct of the child."
This is expressly provided for in Articles 349, 350 and
352 of the Civil Code. In the law of torts, the governing
principle is that the protective custody of the school
heads and teachers is mandatorily substituted for that
of the parents, and hence, it becomes their obligation as
well as that of the school itself to provide proper
supervision of the students' activities during the whole
time that they are at attendance in the school, including
recess time, as well as to take the necessary precautions
to protect the students in their custody from dangers
and hazards that would reasonably be anticipated,
including injuries that some student themselves may
inflict willfully or through negligence on their fellow
students. (citations omitted, emphasis supplied)
It added:
As tersely summarized by Mr. Justice J.B.L. Reyes in his

dissenting opinion in Exconde, "the basis of the
presumption of negligence of Art. 1903 [now 21801 is some
culpa in vigilando that the parents, teachers, etc. are
supposed to have incurred in the exercise of their
authority" and "where the parent places the child under
the effective authority of the teacher, the latter, and not the
parent, should be the one answerable for the torts
committed while under his custody, for the very reason
that the parent is not supposed to interfere with the
discipline of the school nor with the authority and
supervision of the teacher while the child is under
instruction " The school itself, likewise, has to respond for
the fault or negligence of its school head and teachers
under the same cited article. (citation omitted)
The Court explained that the phrase "so long as (the

students) remain in their custody" means the pro-
tective and supervisory custody that the school and its
heads and teachers exercise over the pupils and
students for as long as they are in attendance in the
school, including recess time. It added:
There is nothing in the law that requires that for such

liability to attach, the pupil or student who commits the
tortious act must live and board in the school, as
erroneously held by the lower court, and the dicta in
Mercado (as well as in Exconde) on which it relied, must
now be deemed to have been set aside by the present
decision.27
Thus, the Court ruled that Valenton and Quibulue, as

president and teacher-in-charge of the school, must be
Id.
PERSONS VICARIOUSLY LE I 369
held solidarily liable for the quasi-delict of Daffon in

the latter's having caused the death of his classmate
Palisoc. It added:
The unfortunate death resulting from the fight between

the protagonists-students could have been avoided, had
said defendants but complied with their duty of
providing adequate supervision over the activities of the
students in the school premises to protect their students
from harm, whether at the hands of fellow students or
other parties. At any rate, the law holds them liable
unless they relieve themselves of such liability, in
compliance with the last paragraph of Article 2180, Civil
Code, by "(proving) that they observed all the diligence
of a good father of a family to prevent damage." In the
light of the factual findings of the lower court's decision,
said defendants failed to prove such exemption from
liability.
In Amadora v. CA, 28 Pablito Daffon shot and killed

Alfredo Amadora, a fellow student, while in the audi-
torium of Colegio de San Jose-Recoletos. Daffon was
convicted of Homicide through Reckless Imprudence.
Alfredo's parents filed a civil case for damages under
Article 2180 against the school, its rector, the high
school principal, the dean of boys, the physics teacher
and Daffon. The trial court ruled in favor of the
plaintiff but the appellate court reversed its decision.
The Court ruled that Article 2180 should apply to all

schools, academic as well as non-academic. It
explained:
2
8 Amadora v. CA, G.R. No. L-47745,15 April 1988.
370 1 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DEiuCTS
Where the school is academic rather than technical or

vocational in nature, responsibility for the tort com-
mitted by the student will attach to the teacher in
charge of such student, following the first part of the
provision. This is the general rule. In the case of
establishments of arts and trades, it is the head thereof, and
only he, who shall be held liable as an exception to the
general rule. In other words, teachers in general shall
be liable for the acts of their students except where the
school is technical in nature, in which case it is the
head thereof who shall be answerable. Following the
canon of reddendo singula singulis, "teachers" should
apply to the words "pupils and students" and "heads of
establishments of arts and trades" to the word "appren-
tices." (emphasis supplied)
The Court pointed out that there was really no

substantial distinction between the academic and the
non-academic schools, insofar as torts committed by
their students are concerned.
The same vigilance is expected from the teacher over the

students under his control and supervision, whatever the
nature of the school where he is teaching. The suggestion
in the Exconde and Mercado Cases is that the provision
would make the teacher or even the head of the school of
arts and trades liable for an injury caused by any student
in its custody but if that same tort were committed in an
academic school, no liability would attach to the teacher
or the school head. All other circumstances being the
same, the teacher or the head of the academic school
would be absolved whereas the teacher and the head of
the non-academic school would be held liable, and
simply because the latter is a school of arts and trades.
The Court cannot see why different degrees of vigilance

should be exercised by the school authorities on the basis
only of the nature of their respective schools. There does
not seem to be any plausible reason for relaxing that
PERSONS VICARIOUSLY LIABLE I 371
vigilance simply because the school is academic in

nature and for increasing such vigilance where the
school is non-academic. Notably, the injury subject of
liability is caused by the student and not by the school
itself nor is it a result of the operations of the school or its
equipment. The injury contemplated may be caused by
any student regardless of the school where he is
registered. The teacher certainly should not be able to
excuse himself by simply showing that he is teaching in
an academic school where, on the other hand, the head
would be held liable if the school were non-academic.
The Court explained that the "reason for the disparity

can be traced to the fact that historically the head of
the school of arts and trades exercised a closer
tutelage over his pupils than the head of the academic
school."
The old schools of arts and trades were engaged in the

training of artisans apprenticed to their master who
personally and directly instructed them on the technique
and secrets of their craft. The head of the school of arts
and trades was such a master and so was personally
involved in the task of teaching his students, who
usually even boarded with him and so came under his
constant control, supervision and influence. By contrast,
the head of the academic school was not as involved
with his students and exercised only administrative
duties over the teachers who were the persons directly
dealing with the students. The head of the academic
school had then (as now) only a vicarious relationship
with the students. Consequently, while he could not be
directly faulted for the acts of the students, the head of
the school of arts and trades, because of his closer ties
with them, could be so blamed.
It is conceded that the distinction no longer obtains at

present in view of the expansion of the schools of arts
and trades, the consequent increase in their enrollment,
and the corresponding diminution of the direct and
personal contact of their heads with the students. Article
2180, however, remains unchanged. In its present state,
the provision must be interpreted by the Court according
to its clear and original mandate until the legislature,
taking into account the changes in the situation subject to
be regulated, sees fit to enact the necessary amendment.
The Court explained that the custody requirement

does not mean that the student must be boarding with
the school authorities, but it does signify that the
student should be within the control and under the
influence of the school authorities at the time of the
occurrence of the injury.
This does not necessarily mean that such, custody be co-

terminous with the semester, beginning with the start of
classes and ending upon the dose thereof, and excluding
the time before or after such period, such as the period of
registration, and in the case of graduating students, the
period before the commencement exercises. In the view
of the Court, the student is in the custody of the school
authorities as long as he is under the control and
influence of the school and within its premises, whether
the semester has not yet begun or has already ended.
It is too tenuous to argue that the student comes under

the discipline of the school only upon the start of classes
notwithstanding that before that day he has already
registered and thus placed himself under its rules.
Neither should such discipline be deemed ended upon
the last day of classes notwithstanding that there may
still be certain requisites to be satisfied for completion of
the course, such as submission of reports, term papers,
clearances and the like. During such periods, the student
is still subject to the disciplinary authority of the school
PRsO.S VICIOUSLY IBLE I 373
and cannot consider himself released altogether from

observance of its rules.
As long as it can be shown that the student is in the

school premises in pursuance of a legitimate student
objective, in the exercise of a legitimate student right, ...
and even in the enjoyment of a legitimate student
privilege, the responsibility of the school authorities over
the student continues. Indeed, even if the student should
be doing nothing more than relaxing in the campus in
the company of his classmates and friends and enjoying
the ambience and atmosphere of the school, he is still
within the custody and subject to the discipline of the
school authorities under the provisions of Article 2180.
(emphasis supplied)
In this case, the Court ruled that Amadora was still in

the custody of the school at the time of the shooting.
With all due respect to the Court, this focus on
Amadora was misplaced as what matters under
Article 2180 is whether the offending pupil was still in
the custody of the school.
When the student is under the custody of the school,

the teacher-in-charge must answer for his students'
torts in practically the same way that the parents are
responsible for the child when he is in their custody.
The Court identified the teacher-in-charge as "the one
designated by the dean, principal, or other adminis-
trative superior to exercise supervision over the
pupils in the specific classes or sections to which they
are assigned." It added:
It is not necessary that at the time of the injury, the
teacher be physically present and in a position to
prevent it. Custody does not connote immediate and
actual physical control but refers more to the influence
374 I ANALYSIS OF PHIUPPINE LAw AND JURISPRUDENCE ON TORTS AND QuAsI-DELIcTS
exerted on the child and the discipline instilled in him
as a result of such influence. Thus, for the injuries
caused by the student, the teacher and not the parent
shall be held responsible if the tort was committed
within the premises of the school at any time when its
authority could be validly exercised over him. (emphasis
supplied)
The Court pointed out that the liability imposed by

Article 2180 is supposed to fall directly on the teacher
or the head of the school of arts and trades and not on
the school itself.
The Court reiterated that the teacher will be held

liable not only when he is acting in loco parentis, for
the law does not require that the offending student be
of minority age. Unlike the parent, who will be liable
only if his child is still a minor, the teacher is held
answerable by the law for the act of the student under
him, regardless of the student's age.
The Court established the standard of diligence

required of the teacher-in-charge by stating that it is
not as strict as the diligence required of parents.
the Court is disposed not to expect from the teacher the

same measure of responsibility imposed on the parent
for their influence over the child is not equal in degree.
Obviously, the parent can expect more obedience from
the child because the latter's dependence on him is
greater than on the teacher. It need not be stressed that
such dependence includes the child's support and
sustenance whereas submission to the teacher's
influence, besides being co-terminous with the period of
custody, is usually enforced only because of the
students' desire to pass the course. The parent can
instill more lasting discipline on the child than the
PERSONS VICARIOUSLY UM.E 1375
teacher and so should be held to a greater account-

ability than the teacher for the tort committed by the
child. (emphasis supplied)
Applying all of these principles, the Court ruled that

none of the respondents were liable. They were ab-
solved because none of them was the teacher-in-
charge of the offending student. The Court said:
The mere fact that Alfredo Amadora had gone to school
that day in connection with his physics report did not
necessarily make the physics teacher, respondent
Celestino Dicon, the teacher-in-charge of Alfredo's killer.
3. At any rate, assuming that he was the teacher-in-

charge, there is no showing that Dicon was negligent in
enforcing discipline upon Daffon or that he had waived
observance of the rules and regulations of the school or
condoned their non-observance. His absence when the
tragedy happened cannot be considered against him
because he was not supposed or required to report to
school on that day. And while it is true that the
offending student was still in the custody of the teacher-
in-charge even if the latter was physically absent when
the tort was committed, it has not been established that it
was caused by his laxness in enforcing discipline upon
the student.
Two observations may be made regarding these state-

ments. First, Dicon cannot be the teacher-in-charge,
not unless Daffon was there because of his physics
class. Second, it is not required that the claimant
prove that the teacher-in-charge was negligent. Under
Article 2180, the person vicariously liable is presumed
to be negligent and it is up to him to prove that he
exercised due diligence to prevent the damage.
In Salvosa v. IAC,29 at around 8:00 p.m. in the parking

space of Baguio Colleges Foundation ("BCF"), an
academic institution and an institution of arts and
trade, Jimmy Abon, an employee of the Armed Forces
of the Philippines and a commerce student at BCF,
shot and killed Napoleon Castro, a student of the Uni-
versity of Baguio, with an unlicensed firearm which
the former took from the armory of the Reserve
Officers Training Corps ("ROTC") Unit of BCF. Abon
was prosecuted for and convicted of the crime of
Homicide by Military Commission. The heirs of
Castro sued Abon, BCF and its officers for damages.
The trial court held BCF solidarily liable with Abon.
The appellate court affirmed but reduced some
amounts.
The Court ruled:

In line with the case of Palisoc, a student not "at atten-
dance in the school" cannot be in "recess" thereat. A
"recess," as the concept is embraced in the phrase "at
attendance in the school," contemplates a situation of
temporary adjournment of school activities where the
student still remains within call of his mentor and is not
permitted to leave the school premises, or the area
within which the school activity is conducted. Recess by
its nature does not include dismissal. Likewise, the mere
fact of being enrolled or being in the premises of a school
without more does not constitute "attending school" or
being in the "protective and supervisory custody" of the
school, as contemplated in the law.
The Court found that Jimmy Abon cannot be consi-

dered to have been "at attendance in the school" or in
29 Salvosa v. LAC, G.R. No. 70458, 5 October 1988.

PERSONSfVICIOUSLYLLEI 377
the custody of BCF when he shot Napoleon Castro.

Thus, it ruled that BCF could not be held solidarily
liable under Article 2180 of the Civil Code.
With all due respect to the Court, it appears that the

application of Article 2180 here was erroneous as the
Court used a provision regarding the vicarious
liability of teachers to determine the liability of a
school.
2. Under the Family Code
Under Article 218 of the Family Code, 3° the following

have special parental authority over the minor child
while under their supervision, instruction or custody:
a. the school;
b. school administrators;
c. teachers; or
d. the individual, entity or institution engaged in
child care.
It further provides that the authority and respon-

sibility of these persons apply to all authorized acti-
vities, whether inside or outside the premises of the
school, entity or institution.
30 ARTICLE 218. The school, its administrators and teachers, or the

individual, entity or institution engaged in child care shall have
special parental authority and responsibility over the minor child
while under their supervision, instruction or custody.
Authority and responsibility shall apply to all authorized activities
whether inside or outside the premises of the school, entity or
institution. (349a)
378 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUAsI-DELICTs
In St. Mary's Academy v. Carpitanos,31 Sherwin

Carpitanos, a student of St. Mary's Academy, during
an enrollment drive, died as a result of injuries
sustained when a jeep, driven by James Daniel II, a 15-
year-old student of St. Mary's Academy, turned turtle.
Sherwin's parents filed a case against James Daniel II
and his parents, the vehicle owner, Vivencio Villa-
nueva and St. Mary's Academy. The trial court held
St. Mary's Academy liable. The appellate court
reduced actual damages but otherwise affirmed. The
appellate court held St. Mary's Academy liable for the
death of Sherwin Carpitanos under Articles 218 and
219 of the Family Code, pointing out that it was
negligent in allowing a minor to drive and in not
having a teacher accompany the minor students in the
jeep.
But the Court reversed the appellate court. It
explained:
Under Article 218 of the Family Code, the following shall
have special parental authority over a minor child while
under their supervision, instruction or custody: (1) the
school, its administrators and teachers; or (2) the indi-
vidual, entity or institution engaged in child care. This
special parental authority and responsibility applies to all
authorized activities, whether inside or outside the
premises of the school, entity or institution. Thus, such
authority and responsibility applies to field trips,
excursions and other affairs of the pupils and students
outside the school premises whenever authorized by the
school or its teachers.
31 St. Mary's Academy v. Carpitanos,G.R. No. 143363, 6 February 2002.

PERSONS VICAmOUSLY LLE 1 379
Under Article 219 of the Family Code, if the person under

custody is a minor, those exercising special parental
authority are principally and solidarily liable for damages
caused by the acts or omissions of the unemancipated
minor while under their supervision, instruction, or
custody.
The Court clarified that there must be a finding that

the act or omission considered as negligent was the
proximate cause of the injury because the negligence
must have a causal connection to the accident. 32 Citing
Cruz v. CA,3 it said:
In order that there may be a recovery for an injury,

however, it must be shown that the 'injury for which
recovery is sought must be the legitimate consequence
of the wrong done; the connection between the
negligence and the injury must be a direct and natural
sequence of events, unbroken by intervening efficient
causes.' In other words, the negligence must be the
proximate cause of the injury. For, 'negligence, no matter
in what it consists, cannot create a right of action unless
it is the proximate cause of the injury complained of.'
And 'the proximate cause of an injury is that cause,
which, in natural and continuous sequence, unbroken by
any efficient intervening cause, produces the injury, and
without which the result would not have occurred.' 34
(emphasis supplied)
The Court found that in this case, there was a failure

to show that the negligence of St. Mary's was the
proximate cause of the death of the victim.
32 Id., citing Sanitary Steam Laundry, Inc. v. Court of Appeals, G.R. No.
119092, 10 December 1998.
33
Cited in the case as "Cruz v. Court ofAppeals, 346 Phil. 872, 886 (1997)."
34Id.
The spouses Daniel and Villanueva admitted that the

immediate cause of the accident was not the negli-
gence of St. Mary's Academy or the reckless driving
of James Daniel II, but the detachment of the steering
wheel guide of the jeep.
The Court found that the spouses Carpitanos did not

present any evidence to show that the proximate
cause of the accident was the negligence of the school
authorities, or the reckless driving of James Daniel II.
The Court also found that there was no evidence that

the school allowed the minor James Daniel II to drive
the jeep of Villanueva. It was Ched Villanueva, grand-
son of Vivencio Villanueva, who had possession and
control of the jeep. He was driving the vehicle and he
allowed James Daniel II, a minor, to drive the jeep at
the time of the accident.
Thus, the Court considered the liability of parents

under Article 219 as a quasi-delict, which required a
finding that the negligence of the school was the
proximate cause of the injury.
In St. Joseph's College v. Miranda,35 a class at St.

Joseph's College ('SJC") conducted a science
experiment about the fusion of sulfur powder and
iron fillings under Rosalinda Tabugo, the subject
teacher and an employee of SJC. The adviser of the
class was Estefania Abdan. Tabugo left her class while
it was doing the experiment. In the middle of the
experiment, Jayson Miranda, a grade six student, who
35 St. Joseph's College v. Miranda,G.R No. 182353, 29 June 2010.

PERSONS VICAmOUSLY LmLE 1 381
was the assistant leader of one of the class groups,

checked the result of the experiment by looking into
the test tube with a magnifying glass. The test tube
was being held by one of his groupmates, who moved
it closer and toward the eye of Jayson. Suddenly, the
compound in the test tube spurted out and several
particles of which hit Jayson's eye and the different
parts of the bodies of some of his groupmates.
Jayson's eyes were chemically burned, particularly his
left eye, for which he had to undergo surgery and had
to spend for his medication. Jayson filed a complaint
for damages against SJC and Tabugo. The trial court
ruled in favor of Jayson and was affirmed by the
appellate court.
The Court found that the lower courts correctly con-

cluded that the immediate and proximate cause of the
accident which caused injury to Jayson was the
sudden and unexpected explosion of the chemicals,
independent of any intervening cause.
SJC and Tabugo argued, however, that the latter

specifically instructed her students, including Jayson,
at the start of the experiment, not to look into the
heated test tube before the compound had cooled off.
Thus, they blamed the accident on a 12-year old
student.
The Court disagreed. It held the proximate cause of

Jayson's injury was the concurrent failure of SJC and
Tabugo to prevent the foreseeable mishap that
occurred during the conduct of the science experi-
ment. SJC and Tabugo were negligent by failing to
exercise the higher degree of care, caution and fore-

sight incumbent upon the school, its administrators
and teachers.
The Court found that SJC and Tabugo's negligence

and failure to exercise the requisite degree of care and
caution was demonstrated by the following:
" SJC did not take affirmative steps to avert

damage and injury to its students although it
had full information on the nature of dan-
gerous science experiments conducted by the
students during class;
* SJC did not install safety measures to protect
the students who conduct experiments in class;
" SJC school did not provide protective gears and
devices, specifically goggles, to shield students
from expected risks and dangers; and
" Tabugo was not inside the classroom the whole
time her class conducted the experiment, speci-
fically, when the accident involving Jayson
occurred.
The Court ruled that SJC and Tabugo cannot simply

deflect their negligence and liability by insisting that
Tabugo gave specific instructions to her science class
not to look directly into the heated compound.
However in this case the Court affirmed the finding of

contributory negligence on the part of Jayson.
PERsoNS VIcAaousLY ILE I 383
C. OWNERS OR MANAGERS OF
ESTABLISHMENTS/EMPLOYERS
As early as 1918, the Court has explained the basis of

the liability of employers under the Civil Code, which
is different from the common law basis. In Cangco v.
Manila Railroad,36 referring to the precursor of Articles
2176 and 2180, the Court said:
The liability, which, under the Spanish law, is, in certain

cases imposed upon employers with respect to damages
occasioned by the negligence of their employees to
persons to whom they are not bound by contract, is not
based, as in the English Common Law, upon the
principle of respondent superior-if it were, the master
would be liable in every case and unconditionally-but
upon the principle announced in article 1902 of the Civil
Code, which imposes upon all persons who by their fault
or negligence, do injury to another, the obligation of
making good the damage caused. One who places a
powerful automobile in the hands of a servant whom he
knows to be ignorant of the method of managing such a
vehicle, is himself guilty of an act of negligence which
makes him liable for all the consequences of his
imprudence. 37 (emphasis supplied)
Thus, in this jurisdiction, the employer is liable

because of his own negligence. The negligence of his
employee is not imputed to him, which is the rule
under common law. It would be wrong therefore for
the Court to say that the liability of employers under
Article 2180 is based on respondeat superior.
36 Cangco v. Manila Railroad,G.R No. 12191,14 October 1918.

37Id.
1. Distinguishing the 4th and 5th Paragraphof
Article 2180
The fourth paragraph of Article 2180 provides that the

owners and managers of an establishment or enter-
prise are responsible for injuries 38 caused by their
employees in the service of the branches in which the
latter are employed or on the occasion of their
functions.
Therefore, under this paragraph, the person vica-

riously responsible is the owner or manager of an
establishment or enterprise and the person he is res-
ponsible for is his employee. In PhilippineRabbit v. Phil
American,39 the Court ruled that the term "manager"
("director" in the Spanish version) is used in the sense
of "employer." 40
In order for the employer to be responsible for injuries

caused by his employee, the injury must have been
caused by the employee in the service of the branches
in which he is employed or on the occasion of his
functions. Put simply, the injury must have been
caused by the employee while he was doing his job.
The fifth paragraph of Article 2180 provides that

employers are liable for the injuries41 committed by
38The Civil Code uses the term "damages" but considering the concept
of damnum absque injuria,the more precise term would be injuries. See
Custodio v. CA where the Court distinguished between "damages" and
"injury."
39 PhilippineRabbit v. PhilAmerican, G.R. No. L-25142, 25 March 1975.
40Id.
41 The Civil Code uses the term "damages" but considering the concept
of damnum absque injuria, the more precise term would be injuries. See
PERsONSVICROUSt. LILE 385
their employees and household helpers acting within

the scope of their assigned tasks, even though the
former are not engaged in any business or industry.
In Castilex v. Vasquez,42 the Court said that while the

fourth and fifth paragraphs apply to employers, the
two provisions may be distinguished. It said:
A distinction must be made between the two provisions
to determine what is applicable. Both provisions apply to
employers: the 4th paragraph, to owners and managers of
an establishment or enterprise; and the 5th paragraph, to
employers in general, whether or not engaged in any
business or industry. The 4th paragraph covers negligent
acts of employees committed either in the service of the
branches or on the occasion of their functions, while the
fifth paragraph encompasses negligent acts of employees
acting within the scope of their assigned task. The latter
is an expansion of the former in both employer cover-
age and acts included. Negligent acts of employees,
whether or not the employer is engaged in a business or
industry, are covered so long as they were acting within
the scope of their assigned task, even though committed
neither in the service of the branches nor on the occasion
of their functions. For, admittedly, employees oftentimes
wear different hats. They perform functions which are
beyond their office, title or designation but which,
nevertheless, are still within the call of duty. 43 (emphasis
supplied)
However, the effect of this interpretation is that it

renders the fourth paragraph redundant and useless.
There is no point using the fourth paragraph as the
Custodio v. CA, where the Court distinguished between "damages"

and "injury."
42
Castilex v. Vasquez, G.R. No. 132266,21 December 1999.
43 Id.
386 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DEiCTS
basis of the complaint if the scope of the fifth
paragraph encompasses the coverage of the fourth
paragraph and more.
2. When Applicable
a. Employer-Employee Relationship
To hold the employer responsible under Article 2180,

it is necessary for the plaintiff to establish the
employer-employee relationship. 44 The employer-em-
ployee relationship cannot be assumed and it is
incumbent upon the plaintiff to prove the relationship
by preponderant evidence. 45 It is enough for the
defendant to deny an alleged employment relation-
ship because he is under no obligation to prove the
negative averment.46
The Court has ruled that in the absence of an

employer-employee relationship, the right of control
over the person causing the injury is not sufficient by
itself to justify an application of the doctrine of
vicarious liability.47
In Spouses Jayme v. Apostol,48 Mayor Fernando Miguel

of Koronadal, South Cotabato was on board the pick-
up truck driven by Fidel Lozano, an employee of the
Municipality of Koronadal. The pick-up truck was
44 Castilex v. Vasquez, G.R. No. 132266,21 December 1999.

45 Spouses Jayme v. Apostol, G.R. No. 163609,27 November 2008;
46 Id. citing Belen v. Belen, G.R. No. 5002, 18 March 1909. Note, however,
that Belen did not involve Article 2180 or its precursor.
7Id.
48Id.
PERSONS ViCmOUSLY LALE 1 387
registered under the name of Rodrigo Apostol, but it

was then in the possession of Ernesto Simbulan.
Lozano borrowed the pick-up truck from Simbulan to
bring Mayor Miguel to Buayan Airport at General
Santos City to catch his flight bound for Manila. On
the way, the pick-up truck ran over Marvin Jayme, a
minor, who was then crossing the National Highway.
The intensity of the collision sent Marvin some 50
meters away from the point of impact, a clear
indication that Lozano was driving at a very high
speed at the time of the accident. Marvin expired six
days after the accident. Spouses Jayme, the parents of
Marvin, filed a complaint for damages against
Apostol, Simbulan, Lozano, and Mayor Miguel. The
trial court ruled in favor of the spouses Jayme and
ordered Lozano, Apostol, and Mayor Miguel to jointly
and severally pay the plaintiff. The appellate court
reversed the decision insofar as Mayor Miguel was
concerned.
The Court ruled that the doctrine of vicarious liability

or imputed liability did not apply to this case. It
explained:
To sustain claims against employers for the acts of their

employees, the following requisites must be established:
(1) That the employee was chosen by the employer
personally or through another; (2) That the service to be
rendered in accordance with orders which the employer
has the authority to give at all times; and (3) That the
388 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TomS AND QUASI-DELICTS
illicit act of the employee was on the occasion or by

reason of the functions entrusted to him.49
The Court added that to make the employer liable, "it

must be established that the injurious or tortuous act
was committed at the time the employee was perfor-
ming his functions."
In addition, because the employer-employee relation-

ship cannot be assumed, it is incumbent upon the
plaintiff to prove the relationship by preponderant
evidence.
Applying the four-fold test,5 0 Court ruled that the

appellate court was correct in ruling that it was the
Municipality of Koronadal which was the lawful-
employer of Lozano at the time of the accident. ,
The spouses Jayme argued that Mayor Miguel had at

least supervision and control over Lozano and how
the latter operated or drove the Isuzu pick-up during
the time of the accident. But the Court found that they
failed to buttress this claim. It added:
Even assuming arguendo that Mayor Miguel had
authority to give instructions or directions to Lozano, he
still cannot be held liable. In Benson v. Sorrell, the New
England Supreme Court ruled that mere giving of
directions to the driver does not establish that the
49 Spouse Jayme v. Apostol, G.R. No. 163609, 27 November 2008, citing

Cammarota, 449, cited in Tolentino, Civil Code of the Philippines, VoL
V, p. 522.
50 In this case, the four-fold test was listed as (1)the employer's power of
selection; (2) payment of wages or other remuneration; (3) the
employer's right to control the method of doing the work; and (4) the
employer's right of suspension or dismissal.
PERSoa
VIcaoUsLY ILE 389
passenger has control over the vehicle. Neither does it

render one the employer of the driver. This Court, in
Soliman, Jr. v. Tuazon, ruled in a similar vein, to wit:
... The fact that a client company may give ins-

tructions or directions to the security guards assigned
to it, does not, by itself, render the client responsible
as an employer of the security guards concerned and
liable for their wrongful acts and omissions. Those
instructions or directions are ordinarily no more than
requests commonly envisaged in the contract for
services entered into with the security agency....
The Court ruled that another employee with the right

to control the injuring employee incurs no vicarious
liability. It said:
Significantly, no negligence may be imputed against a

fellow employee although the person may have the
right to control the manner of the vehicle's operation.
In the absence of an employer-employee relationship
establishing vicarious liability, the driver's negligence
should not be attributed to a fellow employee who only
happens to be an occupant of the vehicle. Whatever right
of control the occupant may have over the driver is not
sufficient by itself to justify an application of the doctrine
of vicarious liability. Handley v. Lombardi is instructive on
this exception to the rule on vicarious liability:
Plaintiff was not the master or principal of the driver

of the truck, but only an intermediate and superior
employee or agent. This being so, the doctrine of
respondeat superior or qui facit per alium is not
properly applicable to him. His power to direct and
control the driver was not as master, but only by
virtue of the fact that they were both employed by
Kruse, and the further fact that as Kruse's agent he
was delegated Kruse's authority over the driver....
390 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TomS AND QuASI-DEcTs
In the case of actionable negligence, the rule is well

settled both in this state and elsewhere that the
negligence of a subordinate employee or subagent is
not to be imputed to a superior employee or agent,
but only to the master or principal.... We can see no
logical reason for drawing any distinction in this re-
gard between actionable negligence and contributory
negligence.51 (citations omitted, emphasis supplied)
The Court cited the case of Swanson v. McQuown:5 2
a case involving a military officer who happened to be

riding in a car driven by a subordinate later involved in
an accident, the Colorado Supreme Court adhered to the
general rule that a public official is not liable for the
wrongful acts of his subordinates on a vicarious basis
since the relationship is not a true master-servant
situation. The court went on to rule that the only
exception is when they cooperate in the act. 3 (emphasis
supplied)
After citing these authorities,54 the Court noted that

Mayor Miguel was neither Lozano's employer nor the
vehicle's registered owner.
There existed no causal relationship 5 between him and

Lozano or the vehicle used that will make him
accountable for Marvin's death. Mayor Miguel was a
mere passenger at the time of the accident.
5' It must be noted that the citation of this common law authority is
inappropriate in explaining the contours of Article 2180 because
dearly, the latter is not based on the doctrine of respondeat superior
which is the foundation of the common law rule being cited.
52 Cited as "94 Cal. App. 486, (271 Pac. 372,1111)."
5Id.
54It must be noted, however, that the cited authorities are discussing
imputed negligence in a relationship based on respondent superior.
0 It is not clear what the Court means by "causal relationship" between
the mayor and driver. It is certainly not required that the mayor be
responsible for the existence of the driver.
PEO VAousLY IALE 1 391
In Professional Services v. Agana,5 6 the Court explained

the liability of hospitals for the negligence committed
by its doctors. In this case, the spouses Enrique and
Natividad Agana sued Professional Services, Inc.,
("PSI") the owner of Medical City Hospital, and the
doctors involved in Natividad's operation, Dr. Ampil
and Dr. Fuentes for negligence in leaving two pieces
of gauze inside her body and malpractice for
concealing their acts of negligence. The lower courts
found Dr. Ampil and PSI solidarily liable.
The Court began by tracing the historical develop-

ment of hospitals and the resulting theories concern-
ing their liability for the negligence of physicians.
Until the mid-nineteenth century, hospitals were
generally charitable institutions, providing medical
services to the lowest classes of society, without regard
for a patient's ability to pay. Those who could afford
medical treatment were usually treated at home by their
doctors. However, the days of house calls and
philanthropic health care are over. The modem health
care industry continues to distance itself from its
charitable past and has experienced a significant con-
version from a not-for-profit health care to for-profit
hospital businesses. Consequently, significant changes in
health law have accompanied the business-related
changes in the hospital industry. One important legal
change is an increase in hospital liability for medical
malpractice. Many courts now allow claims for hospital
vicarious liability under the theories of respondeat
superior, apparent authority, ostensible authority, or
agency by estoppel. (citations omitted)
5
6Professional Services v. Agana, G.R. No. 126297,31 January 2007.
392 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QuAsi-DELIcTS
It would seem therefore that the growing liability of

hospitals for the acts of its doctors may be traced to
the development of hospitals as profit-driven entities.
After quoting Article 2176 and paragraphs 4 and 5 of

Article 2180,57 the Court said:
A prominent civilist commented that professionals
engaged by an employer, such as physicians, dentists,
and pharmacists, are not "employees" under this article
because the manner in which they perform their work
is not within the control of the latter (employer). In
other words, professionals are considered personally
liable for the fault or negligence they commit in the
discharge of their duties, and their employer cannot be
held liable for such fault or negligence. In the context of
the present case, "a hospital cannot be held liable for the
fault or negligence of a physician or surgeon in the
treatment or operation of patients."58 (emphasis by the
court)
It added:
The foregoing view is grounded on the traditional

notion that the professional status and the very nature of
the physician's calling preclude him from being classed
as an agent or employee of a hospital, whenever he acts
in a professional capacity. It has been said that medical
practice strictly involves highly developed and spe-
cialized knowledge, such that physicians are generally
free to exercise their own skill and judgment in
rendering medical services sans interference. Hence,
when a doctor practices medicine in a hospital setting,
57 It must be noted that the Court's characterization of Article 2180 as

based on the doctrine of respondeat superior is inconsistent with its
prior decisions.
58 Citing 'Tolentino,
The Civil Code of the Philippines, Volume V, 1992
Ed., p. 616."
PERS VICARIOUSLY LIABLE 1 393
the hospital and its employees are deemed to subserve

him in his ministrations to the patient and his actions are
of his own responsibility. (citations omitted, emphasis by
the Court)
The Court cited Schloendorff v. Society of New York

Hospital5 9 as an authority for the said view.
The 'Schloendorff doctrine" regards a physician, even if
employed by a hospital, as an independent contractor
because of the skill he exercises and the lack of control
exerted over his work. Under this doctrine, hospitals are
exempt from the application of the respondeat superior
principle for fault or negligence committed by physicians
in the discharge of their profession.
But the Court also admitted that

.,.the efficacy of the foregoing doctrine has weakened
with the significant developments in medical care.
Courts came to realize that modern hospitals are in-
creasingly taking active role in supplying and regu-
lating medical care to patients. No longer were a hos-
pital's functions limited to furnishing room, food, faci-
lities for treatment and operation, and attendants for its
patients. Thus, in Bing v. Thunig, the New York Court of
Appeals deviated from the Schloendorff doctrine, noting
that modem hospitals actually do far more than provide
facilities for treatment. Rather, they regularly employ, on
a salaried basis, a large staff of physicians, interns,
nurses, administrative and manual workers. They charge
patients for medical care and treatment, even collecting
for such services through legal action, if necessary. The
court then concluded that there is no reason to exempt
hospitals from the universal rule of respondeat superior.
(citation omitted, emphasis by the Court)
59 Cited in the case as "211 N.Y. 125, 105 N.E. 92, 52 L.R.A., NS., 505
(1914)."
The Court ruled that in this jurisdiction:

the nature of the relationship between the hospital and
the physicians is rendered inconsequential in view of our
categorical pronouncement in Ramos v. Court of Appeals
that for purposes of apportioning responsibility in medi-
cal negligence cases, an employer-employee relation-
ship in effect exists between hospitals and their
attending and visiting physicians. (citation omitted,
emphasis by the Court)
The Court ruled that PSI failed to adduce evidence

showing that it exercised the diligence of a good
father of a family in the accreditation and supervision
of Dr. Ampil. Thus, it failed to discharge its burden
under the last paragraph of Article 2180 and,
therefore, was adjudged to be solidarily liable with
Dr. Ampil.
PSI filed a motion for reconsideration of this decision,

arguing that the Court erred in finding it liable under
Article 2180 of the Civil Code, there being no
employer-employee relationship between it and its
consultant, Dr. Ampil. It stressed that the Court's
decision in Ramos v. CA holding that "an employer-
employee relationship in effect exists between hos-
pitals and their attending and visiting physicians for
the purpose of apportioning responsibility" had been
reversed in a subsequent Resolution.
In its Resolution, 60 the Court ruled against the motion.

It said its assailed decision ruled that an employer-
employee relationship "in effect" exists between the
6
oProfessionalService v. Agana, G.R. No. 126297,11 February 2008.
PEO VICIOUSLY LALE 1395
Medical City and Dr. Ampil, following the Court's

ruling in Ramos v. CA. The Court said:
Clearly, in Ramos, the Court considered the peculiar
relationship between a hospital and its consultants on
the bases of certain factors. One such factor is the
"control test" wherein the hospital exercises control in
the hiring and firing of consultants, like Dr. Ampil, and
in the conduct of their work.
As regards the alleged reversal in Ramos, the Court

explained that it did not reverse its ruling but merely
clarified that the De Los Santos Medical Clinic did not
exercise control over its consultant; hence, there is no
employer-employee relationship between them. Thus,
despite the granting of the said hospital's motion for
reconsideration, the doctrine in Ramos stays, i.e., for
the purpose of allocating responsibility in medical
negligence cases, an employer-employee relationship
exists between hospitals and their consultants.
PSI filed a second motion for reconsideration, urging

the referral of the matter to the Court en banc. Here,
PSI argued that the Court's declaration that the ruling
in Ramos v. CA that "an employer-employee relations
exists between hospital and their consultants" should
be set aside for being inconsistent with or contrary to
the import of the resolution granting the hospital's
motion for reconsideration in Ramos, which is
applicable to PSI since the Aganas failed to prove an
employer-employee relationship between PSI and Dr.
Ampil, and PSI proved that it has no control over Dr.
Ampil. PSI argued that the trial court found that there
396 1ANA.YSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON Tows AND QuAsiOEUCTs
was no employer-employee relationship in this case

and that the doctors were independent contractors.
In this Resolution, 61 the Court held that "PSI is liable

to the Aganas, not under the principle of respondeat
superior for lack of evidence of an employment
relationship with Dr. Ampil but under the principle of
ostensible agency." 62 It said that "[w]here an employ-
ment relationship exists, the hospital may be held
vicariously liable under Article 2176 in relation to
Article 2180 of the Civil Code or the principle of
6
respondeatsuperior."
The Court reiterated that it still employed the "control

test" to determine the existence of an employer-
employee relationship between hospital and doctor. It
quoted from Calamba Medical Center, Inc. v. National
Labor Relations Commission, et al.64 where it held:
Under the "control test", an employment relationship
exists between a physician and a hospital if the
hospital controls both the means and the details of the
process by which the physician is to accomplish his
task.
xxx xxx xxx
61ProfessionalServices v. Agana, G.R. No. 126297,2 February 2010.

62The use of the phrase respondeat superiorwas unfortunate. What the
Court most likely meant was vicarious liability. It has long been
established by jurisprudence that vicarious liability is not based on the
doctrine of respondeatsuperiorbut on the concept of bonus paterfamilias.
See Cangco v. Manila Railroad,G.R. No. 12191,14 October 1918.
63The Court's characterization of Article 2180 as based on the doctrine
of respondeatsuperioris inconsistent with its prior decisions.
64
Calamba Medical Center, Inc. v. National Labor Relations Commission, et
al., G.R. No. 176484,25 November 2008.
PERsoNS VICaIOuSLY IABLE I 397
As priorly stated, private respondents maintained

specific work-schedules, as determined by petitioner
through its medical director, which consisted of 24-hour
shifts totaling forty-eight hours each week and which
were strictly to be observed under pain of administrative
sanctions.
That petitioner exercised control over respondents gains

light from the undisputed fact that in the emergency
room, the operating room, or any department or ward
for that matter, respondents' work is monitored through
its nursing supervisors, charge nurses and orderlies.
Without the approval or consent of petitioner or its
medical director, no operations can be undertaken in
those areas. For control test to apply, it is not essential
for the employer to actually supervise the performance
of duties of the employee, it being enough that it has the
right to wield the power.65 (emphasis supplied)
The Court found that in this case:

it appears to have escaped the Court's attention that both
the RTC and the CA found no employment relationship
between PSI and Dr. Ampil, and that the Aganas did not
question such finding. In its March 17, 1993 decision,
the RTC found "that defendant doctors were not
employees of PSI in its hospital, they being merely
consultants without any employer-employee relation-
ship and in the capacity of independent contractors." The
Aganas never questioned such finding.
PSI, Dr. Ampil and Dr. Fuentes appealed from the RTC
decision but only on the issues of negligence, agency and
corporate liability. In its September 6, 1996 decision, the
CA mistakenly referred to PSI and Dr. Ampil as
employer-employee, but it was clear in its discussion on
65Id.
398 1 ANALYSIS OF PHILIPPINE LAW AND JURISPRUDENCE ON Toms AND QUASI-OELCTS
the matter that it viewed their relationship as one of

mere apparent agency.
The Aganas appealed from the CA decision, but only to

question the exoneration of Dr. Fuentes. PSI also
appealed from the CA decision, and it was then that the
issue of employment, though long settled, was un-
wittingly resurrected.
In fine, as there was no dispute over the RTC finding

that PSI and Dr. Ampil had no employer-employee
relationship, such finding became final and conclusive
even to this Court. There was no reason for PSI to have
raised it as an issue in its petition. Thus, whatever
discussion on the matter that may have ensued was
purely academic. (citations omitted, emphasis by the
Court)
The Court added that it also found "that, in this

particular instance, the concurrent finding of the RTC
and the CA that PSI was not the employer of Dr.
Ampil is correct." It said:
Control as a determinative factor in testing the

employer-employee relationship between doctor and
hospital under which the hospital could be held
vicariously liable to a patient in medical negligence
cases is a requisite fact to be established by
preponderance of evidence. Here, there was insufficient
evidence that PSI exercised the power of control or
wielded such power over the means and the details of
the specific process by which Dr. Ampil applied his skills
in the treatment of Natividad. Consequently, PSI cannot
be held vicariously liable for the negligence of Dr. Ampil
under the principle of respondeat superior. (emphasis
supplied)
PERSONSVICAROUSLY LBLE 1 399
b. Within the Scope of Assigned Tasks
In addition to proving that an employer-employee

relationship exists, the plaintiff must also show that
the employee was acting within the scope of his
assigned task when the quasi-delict complained of
was committed, in order to make the employer vica-
riously liable.66
The employer need not prove that his employee was

not acting within the scope of his assigned tasks at the
time of the injury to the plaintiff. 67 It is enough for the
employer to deny that his employee was acting within
the scope of his duties. 68
Jurisprudence has defined the clause "within the

scope of their assigned tasks," for purposes of raising
the presumption of liability of an employer, includes
any act done by an employee in furtherance of the
interests of the employer or for the account of the
employer at the time of the infliction of the injury or
damage. 69
In Filamer v. IAC,7° a jeep owned by Filamer Christian

Institute ("Filamer") and driven by Daniel Funtecha,
struck Potenciano Kapunan, Sr. as a result of which he
suffered multiple injuries. At that time of incident,
only one headlight of the jeep was functioning and
Funtecha only had a student driver's permit. But he
66
Castilex v. Vasquez, G.R. No. 132266,21 December 1999.
67 Id.
68Id.
6Filamer v. LAC, G.R. No. 75112,17 August 1992.
7
oFilamer v. LAC, G.R. No. 75112,16 October 1990.
400 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI.DELICTS
persuaded Allan Masa, the authorized driver, to allow

him to drive the vehicle. Potenciano filed an action for
damages.
The Court agreed with Filamer's contention that it

cannot be held responsible for the tortious act of
Funtecha on the ground that there was no existing
employer-employee relationship between them. The
Court cited Section 14, Rule X of Book III of the Labor
Code:
Sec. 14. Working scholars. -There is no employer-em-

ployee relationship between students on the one hand,
and schools, colleges or universities on the other, where
students work for the latter in exchange for the privilege
to study free of charge; provided the students are given
real opportunity, including such facilities as may be
reasonable, necessary to finish their chosen courses
under such arrangement.
The Court ruled that under this provision, Filamer

cannot be considered as Funtecha's employer. It said:
Funtecha belongs to that special category of students
who render service to the school in exchange for free
tuition. Funtecha worked for petitioner for two hours
daily for five days a week. He was assigned to dean the
school passageways from 4:00 a.n. to 6:00 a.m. with
sufficient time to prepare for his 7:30 a.m. classes. As
admitted by Agustin Masa in open court, Funtecha was
not included in the company payroll.
The Court also ruled that even if there was an

employer-employee relationship, Filamer still would
not be liable. It explained:
PERSONs VICIOUSLY LABE 1401
it has been satisfactorily shown that Funtecha was not

acting within the scope of his supposed employment.
His duty was to sweep the school passages for two hours
every morning before his regular classes. Taking the
wheels of the Pinoy jeep from the authorized driver at
6:30 in the evening and then driving the vehicle in a
reckless manner resulting in multiple injuries to a third
person were certainly not within the ambit of his
assigned tasks. In other words, at the time of the injury,
Funtecha was not engaged in the execution of the
janitorial services for which he was employed, but for
some purpose of his own. It is but fair therefore that
Funtecha should bear the full brunt of his tortious
negligence.
The heirs of the late Potenciano Kapunan, Sr. sought

reconsideration 7 ' of the earlier decision.
The Court granted the motion for reconsideration. It

explained:
It is undisputed that Funtecha was a working student,
being a part-time Janitor and a scholar of petitioner
Filamer. He was, in relation to the school, an employee
even if he was assigned to clean the school premises for
only two hours in the morning of each school day.
Regarding Section 14, Rule X, Book III of the Rules

implementing the Labor Code, the Court said:
Section 14, Rule X, Book Ill of the Rules implementing
the Labor Code, on which the petitioner anchors its
defense, was promulgated by the Secretary of Labor and
Employment only for the purpose of administering and
enforcing the provisions of the Labor Code on
conditions of employment. Particularly, Rule X of Book
71 Filamerv. LAC, G.R. No. 75112,17 August 1992.

Il provides guidelines on the manner by which the

powers of the Labor Secretary shall be exercised; on
what records should be kept, maintained and preserved;
on payroll; and on the exclusion of working scholars
from, and inclusion of resident physicians in the
employment coverage as far as compliance with the
substantive labor provisions on working conditions, rest
periods, and wages, is concerned.
In other words, Rule X is merely a guide to the

enforcement of the substantive law on labor. The
Court, thus, makes the distinction and so holds that
Section 14, Rule X, Book III of the Rules is not the
decisive law in a civil suit for damages instituted by an
injured person during a vehicular accident against a
working student of a school and against the school itself.
The present case does not deal with a labor dispute on

conditions of employment between an alleged employee
and an alleged employer. It invokes a claim brought by
one for damages for injury caused by the patently neg-
ligent acts of a person, against both doer-employee and
his employer. Hence, the reliance on the implementing
rule on labor to disregard the primary liability of an
employer under Article 2180 of the Civil Code is mis-
placed. An implementing rule on labor cannot be used
by an employer as a shield to void liability under the
substantive provisions of the Civil Code. (emphasis
supplied)
Thus, it seems that the Court ruled that Filamer was

an employer simply because the implementing rule
did not apply. However, the Court did not explain
why Funtecha was an employee based on applicable
rules. Ordinarily, the Court would apply the control
test but no such test was applied here.
PBWSONVICAOUSLY LIE 1403
The Court also ruled that driving the vehicle to and

from the house of the school president where both
Allan and Funtecha reside was an act in furtherance of
the interest of Filamer. In addition, the Court found
that under the circumstances, the school president
had knowledge that the jeep was routinely driven
home for the said purpose; hence, it was not
improbable that the school president also had know-
ledge of Funtecha's possession of a student driver's
license and his desire to undergo driving lessons
during the time that he was not in his classrooms. It
added:
In learning how to drive while taking the vehicle home
in the direction of Allan's house, Funtecha definitely was
not, having a joy ride. Funtecha was not driving for the
purpose of his enjoyment or for a "frolic of his own" but
ultimately, for the service for which the jeep was
intended by the petitioner school.... Therefore, the Court
is constrained to conclude that the act of Funtecha in
taking over the steering wheel was one done for and in
behalf of his employer for which act the petitioner-school
cannot deny any responsibility by arguing that it was
done beyond the scope of his janitorial duties. The clause
"within the scope of their assigned tasks" for purposes of
raising the presumption of liability of an employer,
includes any act done by an employee, in furtherance
of the interests of the employer or for the account of
the employer at the time of the infliction of the injury
or damage... Even if somehow, the employee driving the
vehicle derived some benefit from the act, the existence
of a presumptive liability of the employer is determined
by answering the question of whether or not the servant
was at the time of the accident performing any act in
furtherance of his master's business... (Citations omit-
ted, emphasis supplied)
404 1 ANALYSIS OF PHILIPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DELICTS
Thus, the Court ruled:

He need not have an official appointment for a driver's
position in order that the petitioner may be held res-
ponsible for his grossly negligent act, it being sufficient
that the act of driving at the time of the incident was
for the benefit of the petitioner. Hence, the fact that
Funtecha was not the school driver or was not acting
with the scope of his janitorial duties does not relieve the
petitioner of the burden of rebutting the presumption
juris tantum that there was negligence on its part either in
the selection of a servant or employee, or in the super-
vision over him. The petitioner has failed to show proof
of its having exercised the required diligence of a good
father of a family over its employees Funtecha and Allan.
(emphasis supplied)
The Court ruled that Filamer had not shown that it

had "set forth such rules and guidelines as would
prohibit any one of its employees from taking control
over its vehicles if one is not the official driver or pro-
hibiting the driver and son of the Filamer president
from authorizing another employee to drive the
school vehicle." It also found that Filamer "failed to
prove that it had imposed sanctions or warned its
employees against the use of its vehicles by persons
other than the driver."
In NPC v. CA,73 a convoy of four dump trucks owned

by National Power Corporation ("NPC") left Marawi
City bound for iligan City. Unfortunately, the truck
driven by Gavino Ilumba figured in a head-on-
72 Inhindsight, Filamer could not have possibly offered such evidence

because it would have contradicted its position that Funtecha was not
an employee,
73 NPC v. CA,G.R. No. 119121,14 August 1998.
PutsO VICAouSLY LLE I 405
collision with a Toyota Tamaraw. The incident

resulted in the death of three persons riding in the
Toyota Tamaraw, as well as physical injuries to 17
other passengers. The heirs of the victims filed a
complaint for damages against NPC and PHESCO
Inc. The trial court absolved NPC of liability but the
appellate court reversed this on the ground that
PHESCO was a "labor only" contractor.
The Court affirmed that PHESCO was engaged in

"labor-only" contracting vis-a-vis NPC and as such, it
was considered merely an agent of the latter.
In labor-only contracting, an employer-employee re-
lationship between the principal employer and the
employees of the "labor-only" contractor is created.
Accordingly, the principal employer is responsible to the
employees of the "labor only" contractor as if such
employees had been directly employed by the principal
employer. Since PHESCO is only a "labor-only" con-
tractor, the workers it supplied to NPC, including the
driver of the ill-fated truck, should be considered as
employees of NPC. After all, it is axiomatic that any
person (the principal employer) who enters into an
agreement with a job contractor, either for the per-
formance of a specified work or for the supply of
manpower, assumes responsibility over the employees
of the latter. (citations omitted)
However, NPC argued that even assuming that a

"labor only" contract existed between it and PHESCO,
"its liability shall only be limited to violations of the
Labor Code and not quasi-delicts." It cited Section
9(b), Rule VII, Book M of the Omnibus Rules
Implementing the Labor Code:
406 1 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QuAsi-DEUCTS
(b) Labor only contracting as defined herein is hereby

prohibited and the person acting as contractor shall be
considered merely as an agent or intermediary of the
employer who shall be responsible to the workers in the
same manner and extent as if the latter were directly
employed by him.
NPC posited the theory that its liability was limited

only to compliance with the substantive labor pro-
visions on working conditions, rest periods, and
wages and shall not extend to liabilities suffered by
third parties.
The Court ruled that it was the Civil Code and not the
Labor Code which was the applicable law in resolving
this case.
The Court cited Filamer Christian Institute v. LAC, 74

where it said that:
The present case does not deal with a labor dispute on

conditions of employment between an alleged employee
and an alleged employer. It invokes a claim brought by
one for damages for injury caused by the patently neg-
ligent acts of a person, against both doer-employee and
his employer. Hence, the reliance on the implementing
rule on labor to disregard the primary liability of an
employer under Article 2180 of the Civil Code is mis-
placed. An implementing rule on labor cannot be used
by an employer as a shield to avoid liability under the
substantive provisions of the Civil Code. (emphasis
supplied)
The Court ruled that Article 2180 of the Civil Code

and not the Labor Code will determine the liability of
74 Filamer v. AC, G.R. No. 75112,17 August 1992.

PERSONS VICAIOUSLY LIABLE I 407
NPC in a civil suit for damages instituted by an

injured person for any negligent act of the employees
of the "labor only" contractor. It added that:
This is consistent with the ruling that a finding that a

contractor was a 'labor-only" contractor is equivalent to
a finding that an employer-employee relationship exist-
ed between the owner (principal contractor) and the
"labor-only" contractor, including the latter's workers.
Finally, NPC, even if it truly believed that it was not the

employer of the driver, could still have disclaimed any
liability had it raised the defense of due diligence in the
selection or supervision of PHESCO and Ilumba. How-
ever, for some reason or another, NPC did not invoke
said defense. Hence, by opting not to present any
evidence that it exercised due diligence in the super-
vision of the activities of PHESCO and Ilumba, NPC has
foreclosed its right to interpose the same on appeal in
conformity with the rule that points of law, theories,
issues of facts and arguments not raised in the
proceedings below cannot be ventilated for the first time
on appeal. Consequently, its liability stands.
An interesting question involves cases wherein the

employee caused the injury to the plaintiff using a
company car or a company-issued vehicle. In one
case, the Court said that:
No absolutely hard and fast rule can be stated which will

furnish the complete answer to the problem of whether
at a given moment, an employee is engaged in his
employer's business in the operation of a motor ve-
hide, so as to fix liability upon the employer because of
408 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTs AND QUASI-DELICTS
the employee's action or inaction; but rather, the result

varies with each state of facts. 75 (emphasis supplied)
In that case, the Court ruled that the "mere fact that
[the employee] was using a service vehicle at the time
of the injurious incident is not of itself sufficient to
charge [the employer] with liability for the negligent
operation of said vehicle unless it appears that he was
operating the vehicle within the course or scope of his
employment.' 7 6
The Court also adopted certain "principles in Ame-

rican Jurisprudence on the employer's liability for the
injuries inflicted by the negligence of an employee in
the use of an employer's motor vehide."n The
principles cover three cases.
The first case is where the employee is using the

employer's vehicle in going to and from meals. In
such a case, the employee is "not ordinarily acting
within the scope of his employment in the absence of
evidence of some special business benefit to the
employer." It added:
Evidence that by using the employer's vehicle to go to
and from meals, an employee is enabled to reduce his
time-off and so devote more time to the performance of
his duties supports the finding that an employee is
acting within the scope of his employment while so
driving the vehicle. 78
75 Castilex v. Vasquez, G.R No. 132266, 21 December 1999.

76Id.
77 Id.
78Id.
PmmtVICmOUSy LmLE I 409
The second case is where the employee is using the

employer's vehicle in traveling to and from the place
of work. This is ordinarily a personal problem or
concern of the employee, and not a part of his services
to his employer. Thus, in the absence of some special
benefit to the employer, the employee is not acting
within the scope of his employment even though he
uses his employer's motor vehicle. 79 The special
benefit may be in allowing the employee to spend
more time at his actual duties. It added:
Where the employee's duties require him to circulate in
a general area with no fixed place or hours of work, or
to go to and from his home to various outside places of
work, and his employer furnishes him with a vehicle to
use in his work, the courts have frequently applied what
has been called the "special errand" or "roving com-
mission" rule, under which it can be found that the
employee continues in the service of his employer until
he actually reaches home. However, even if the
employee be deemed to be acting within the scope of his
employment in going to or from work in his employer's
vehicle, the employer is not liable for his negligence
where at the time of the accident, the employee has left
the direct route to his work or back home and Is
pursuing a personal errand of his own. s0 (emphasis
supplied)
The third case is where an employer loans his vehicle

to an employee for the latter's personal use outside of
regular working hours. In this case, the employer "is
generally not liable for the employee's negligent ope-
ration of the vehicle during the period of permissive
7Id.
8oId.
410 1 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QuAsiDEuCTs
use, even where the employer contemplates that a

regularly assigned motor vehicle will be used by the
employee for personal as well as business purposes
and there is some incidental benefit to the employer."
It added:
Even where the employee's personal purpose in using
the vehicle has been accomplished and he has started the
return trip to his house where the vehicle is normally
kept, it has been held that he has not resumed his
employment, and the employer is not liable for the
employee's negligent operation of the vehicle during the
return trip.81
The Court ruled that these principles are applicable in

this jurisdiction, albeit based on the doctrine of
respondeat superior, not on the principle of bonus pater
familias because whether or not the fault or negligence
of the employee is conclusive on his employer merely
gives rise to the presumption juris tantum of negli-
gence on the part of the employer. It is indispensable
that the employee was acting in furtherance of his
employer's business or within the scope of his
assigned task.82
In Castilex v. Vasquez,8 3 Romeo Vasquez was driving a

Honda motorcycle around Fuente Osmefta Rotunda,
without any protective helmet or goggles. He was also
only carrying a "Student's Permit to Drive" at the
time. On the other hand, Benjamin Abad was a man-
ager of Castilex Industrial Corporation ("Castilex"),
1Id.
82Id.
8 Id.
PsowstvcousLYLnLE 1411
the registered owner of a Toyota Hi-Lux pick-up he

was driving. Abad drove the said company car out of
a parking lot but instead of going around the Osmefia
rotunda, he made a shortcut against the flow of the
traffic. In the process, the motorcycle of Vasquez and
the pick-up of Abad collided with each other, causing
severe injuries to the former. Vasquez died at the
Cebu Doctor's Hospital. Vicente Vasquez, Jr. and
Luisa So Vasquez, parents of the deceased, com-
menced an action for damages against Jose Abad and
Castilex. The trial court ordered Abad and Castilex to
pay the spouses Vasquez jointly and solidarily. The
appellate court affirmed the ruling of the trial court
holding Abad and Castilex liable but held that the
liability of the latter is "only vicarious and not
solidary" with the former.
Castilex argued that the 5th paragraph of Article 2180

of the Civil Code should only apply to instances
where the employer is not engaged in business or
industry, and because it is engaged in the business of
manufacturing and selling furniture, it is therefore not
covered by said provision. It argued that it is the 4th
paragraph of Article 2180 that should apply.
The Court ruled that phrase "even though the former

are not engaged in any business or industry" found in
the fifth paragraph should be interpreted to mean that
it is not necessary for the employer to be engaged in
any business or industry to be liable for the negligence
of his employee who is acting within the scope of his
assigned task. It added:
Negligent acts of employees, whether or not the em-
ployer is engaged in a business or industry, are covered
so long as they were acting within the scope of their
assigned task, even though committed neither in the
service of the branches nor on the occasion of their
functions. For, admittedly, employees oftentimes wear
different hats. They perform functions which are beyond
their office, title or designation but which, nevertheless,
are still within the call of duty. (citations omitted)
It added that:
This court has applied the fifth paragraph to cases where
the employer was engaged in a business or industry such
as truck operators and banks.
According to the Court, to hold an employer liable

under the 5th paragraph of Article 2180, it is necessary
to establish the employer-employee relationship. Once
the relationship is established, the plaintiff must show
that the employee was acting within the scope of his
assigned task when the tort complained of was
committed. It is only after this is accomplished that it
becomes necessary for the employer to interpose the
defense of due diligence in the selection and super-
vision of the employee.
The Court found that Abad was a Production

Manager of Castilex at the time of the occurrence. But
as to whether he was acting within the scope of his
assigned task was a question of fact, which the lower
courts resolved in the affirmative. However, the Court
chose to review the factual findings of the lower court
because these were grounded on speculations, sur-
mises, or conjectures. This was because the finding of
the appellate court that Abad was acting within the
Pe SN ViCAousLY LILE 1 413
scope of his duties as a manager was based simply on

the fact that Abad was driving Castilex's vehicle.
The Court clarified that it was not incumbent upon

Castilex to prove that Abad was not acting within the
scope of his assigned tasks because it was not under
obligation to prove this negative averment.
The Court cited Filamer Christian Institute v. Inter-

mediate Appellate Court,84 where it held that acts done
within the scope of the employee's assigned tasks
includes "any act done by an employee in furtherance
of the interests of the employer or for the account of
the employer at the time of the infliction of the injury
or damages."
The Court ruled that the mere fact that Abad was
using a service vehicle at the time of the injurious
incident was not in itself sufficient to charge Castilex
with liability, unless it appears that he was operating
the vehicle within the course or scope of his
employment.
The Court then quoted "principles in American Juris-

prudence on the employer's liability for the injuries
inflicted by the negligence of an employee in the use
of an employer's motor vehicle:"
I. Operation of Employer's Motor Vehicle in Going to
or from Meals
It has been held that an employee who uses his

employer's vehicle in going from his work to a place
84Cited as '212 SCRA 637,643 (1992)."

414 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON ToRTs AND QuAsI-DELcTs
where he intends to eat or in returning to work from a

meal is not ordinarily acting within the scope of his
employment in the absence of evidence of some special
business benefit to the employer. Evidence that by
using the employer's vehicle to go to and from meals, an
employee is enabled to reduce his time-off and so devote
more time to the performance of his duties supports the
finding that an employee is acting within the scope of his
employment while so driving the vehicle.
II. Operation of Employer's Vehicle in Going to or from

Work
In the same vein, traveling to and from the place of work

is ordinarily a personal problem or concern of the em-
ployee, and not a part of his services to his employer.
Hence, in the absence of some special benefit to the
employer other than the mere performance of the ser-
vices available at the place where he is needed, the
employee is not acting within the scope of his employ-
ment even though he uses his employer's motor vehicle.
The employer may, however, be liable where he derives

some special benefit from having the employee drive
home in the employer's vehicle as when the employer
benefits from having the employee at work earlier and,
presumably, spending more time at his actual duties.
Where the employee's duties require him to circulate
in a general area with no fixed place or hours of work,
or to go to and from his home to various outside places
of work, and his employer furnishes him with a vehicle
to use in his work, the courts have frequently applied
what has been called the "special errand" or "roving
commission" rule, under which it can be found that the
employee continues in the service of his employer until
he actually reaches home. However, even if the
employee be deemed to be acting within the scope of his
employment in going to or from work in his employer's
vehicle, the employer is not liable for his negligence
where at the time of the accident, the employee has left
the direct route to his work or back home and is
pursuing a personal errand of his own.
Ell. Use of Employer's Vehicle Outside Regular Working

Hours
An employer who loans his motor vehicle to an

employee for the latter's personal use outside of regular
working hours is generally not liable for the employee's
negligent operation of the vehicle during the period of
permissive use, even where the employer contemplates
that a regularly assigned motor vehicle will be used by
the employee for personal as well as business purposes
and there is some incidental benefit to the employer.
Even where the employee's personal purpose in using
the vehicle has been accomplished and he has started the
return trip to his house where the vehicle is normally
kept, it has been held that he has not resumed his
employment, and the employer is not liable for the
employee's negligent operation of the vehicle during the
return trip. (citations omitted, emphasis supplied)
The Court held that these principles and jurispru-

dence are applicable in this jurisdiction albeit based
on the doctrine of respondeatsuperior, not on the prin-
ciple of bonus paterfamiliasas in ours. It explained:
Whether the fault or negligence of the employee is

conclusive on his employer as in American law or
jurisprudence, or merely gives rise to the presumption
juris tantum of negligence on the part of the employer as
in ours, it is indispensable that the employee was acting
in his employer's business or within the scope of his
assigned task.
The Court found that Abad did some overtime work

at Castilex's office, which was located in Cabangcalan,
Mandaue City and afterwards went to Goldie's
Restaurant in Fuente Osmefia, Cebu City, which is

about seven kilometers away from Castilex's place of
business. The Court said that this was a "lively place"
because Goldie's Restaurant was still open even at
dawn and prostitutes, pimps, and drug addicts litter-
ed the place. At Goldie's Restaurant, Abad took some
snacks and had a chat with friends. It was when Abad
was leaving the restaurant that the incident in
question occurred. At the time of the vehicular acci-
dent, Abad was with a woman in his car, who then
shouted: "Daddy, Daddy!" The Court found that this
woman could not have been Abad's daughter because
of Abad's age at the time. Thus, the Court said:
To the mind of this Court, ABAD was engaged in affairs

of his own or was carrying out a personal purpose not in
line with his duties at the time he figured in a vehicular
accident. It was then about 2:00 a.m. of 28 August 1988,
way beyond the normal working hours. ABAD's
working day had ended; his overtime work had already
been completed. His being at a place which, as petitioner
put it, was known as a "haven for prostitutes, pimps, and
drug pushers and addicts," had no connection to
petitioner's business; neither had it any relation to his
duties as a manager. Rather, using his service vehicle
even for personal purposes was a form of a fringe benefit
or one of the perks attached to his position.
In Valenzuela v. CA,8 Ma. Lourdes Valenzuela was

driving her car along Aurora Blvd. at 2:00 a.m.
heading towards the direction of Manila when she
noticed something wrong with her tires. Finding out
that her rear right tire was flat, she parked along the
sidewalk, about 1 feet away, put on her emergency
5
Vaenzuela v. CA, G.R. No. 115024, 7 February 1996.
Pa soNsVicaousLYLBLE 1417
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 car driven by Richard Li and registered in the
name of Alexander Commercial, Inc. Because of the
impact, Lourdes was thrown against the windshield
of the car of Richard and then fell to the ground. She
was pulled out from under Richard's car. Lourdes'
left leg was severed up to the middle of her thigh,
with only some skin and suckle connected to the rest
of the body. The trial court found Richard guilty of
gross negligence and liable for damages under Article
2176 of the Civil Code. It also held Alexander Com-
mercial, Inc., Richard's employer, jointly and
severally liable for damages pursuant to Article 2180.
The appellate court absolved Alexander Commercial,

Inc. from any liability, stating that there was no
evidence, not even defendant Li's testimony, that the
visit to his officemate was in connection with official
matters. It also disagreed with the trial court's finding
that since defendant Li was authorized by the
company to use the company car 'either officially or
socially or even bring it home,' he can be considered
as using the company car in the service of his
employer or on the occasion of his functions.
The Court disagreed with the appellate court and

ruled that Richard's employer, Alexander Com-
mercial, Inc., was jointly and solidarily liable with
him. It explained:
418 1 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON ToRTs AND QUASI-DELICTS
Ordinarily, evidence demonstrating that the employer

has exercised diligent supervision of its employee
during the performance of the latter's assigned tasks
would be enough to relieve him of the liability imposed
by Article 2180 in relation to Article 2176 of the Civil
Code. The employer is not expected to exercise super-
vision over either the employee's private activities or
during the performance of tasks either unsanctioned by
the former or unrelated to the employee's tasks. The
case at bench presents a situation of a different cha-
racter, involving a practice utilized by large companies
with either their employees of managerial rank or their
representatives. (emphasis supplied)
The Court appears to be ruling that if a case involves

injuries caused by the use of a company car, evidence
of due diligence in the selection and supervision of
employees on the part of the employer would not be
enough.
The Court thereafter discussed the custom of certain

companies to provide certain classes of their
employees with courtesy vehicles. It said:
When a company gives full use and enjoyment of a
company car to its employee, it in effect guarantees that
it is, like every good father, satisfied that its employee
will use the privilege reasonably and responsively...
... Since important business transactions and decisions

may occur at all hours in all sorts of situations and under
all kinds of guises, the provision for the unlimited use
of a company car therefore principally serves the
business and goodwill of a company and only incident-
ally the private purposes of the individual who actually
uses the car, the managerial employee or company sales
agent. As such, in providing for a company car for
business use and/or for the purpose of furthering the
PERSONS VICARIouSLY LIABLE I 419
company's image, a company owes a responsibility to

the public to see to it that the managerial or other
employees to whom it entrusts virtually unlimited use
of a company issued car are able to use the company
issue capably and responsibly. (citation omitted,
emphasis supplied)
In this case, the Court found that Richard was an

Assistant Manager of Alexander Commercial, Inc.
with functions that did not require him to scrupu-
lously keep normal office hours because he was re-
quired quite often to perform work outside the office,
visiting prospective buyers and contacting and meet-
ing with company clients. Such meetings were not
strictly confined to routine hours because, as he was
tasked with the job of representing his company to its
clients, meetings with clients were both social and
work-related functions. The service car assigned to
Richard enabled both him-as well as the corpo-
ration-to put up the front of a highly successful
entity, increasing the latter's goodwill before its
clientele. It also facilitated meetings between
Richard's and his employer's clients by providing the
former with a convenient mode of travel.
The Court found that Richard's claim that he happen-

ed to be on the road on the night of the accident
because he was coming from a social visit with an
officemate in Parafiaque was a bare allegation which
was never corroborated and was self-serving. 86 Even
if he really came from his officemate's place, the Court
ruled that such fact could give rise to speculation that
86 But is the employee required to prove that he came from an employ-

ment related appointment? Should not this be the job of the claimant?
420 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON ToRTs AND QUASI-DELICTS
he and his officemate had just been from a work-

related function, or they were together to discuss sales
87
and other work-related strategies.
The Court ruled that Alexander Commercial, Inc. did

not demonstrate that it exercised the care and dili-
gence of a good father of the family in entrusting its
company car to Richard. It found that no allegations
were made as to whether or not the company took the
steps necessary to determine or ascertain the driving
proficiency and history of Richard, to whom it gave
full and unlimited use of a company car. Not having
been able to overcome the burden of demonstrating
that it should be absolved of liability for entrusting its
company car to Richard, the Court ruled that said
company, based on the principle of bonus pater
familias, ought to be jointly and severally liable with
the former for the injuries sustained by Lourdes
during the accident.
3. Presumption of Negligence
Once the employee is found liable for a quasi-delict

while acting within the scope of his assigned tasks, his
employer is immediately disputably presumed to be
negligent in the selection or supervision of his
8 This ruling suggests that a when co-workers meet outside of the

workplace, the presumption is that the meeting is work-related. It
must be pointed out however that although Richard in this case did
not keep normal office hours, there is nothing to suggest that the co-
worker he met with also had the same arrangement.
PERSONS VICmOUSLY mLE 1 421
employee.88 The presumption does not arise if the

89
negligence of the employee is not proven.
The presumption does not imply that the negligence

of the employee becomes the negligence of the em-
ployer. The latter has his own separate negligence.
This theory bases the responsibility of the master

ultimately on his own negligence and not on that of his
servant. This is the notable peculiarity of the Spanish law
of negligence. It is, of course, in striking contrast to the
American doctrine that, in relations with strangers, the
negligence of the servant is conclusively the negligence
of the master.90
4. Rebuttal of Presumption
After the plaintiff proves the employer-employee rela-

tionship and that the act complained of was within
the scope of assigned tasks, it becomes necessary for
the employer to interpose the defense of due diligence
in the selection and supervision of the employee. 91
To rebut the presumption of negligence, the employer

must present adequate and convincing proof that he
exercised care and diligence in the selection and
supervision of his employees. 92
8 Lampesa v. De Vera, G.R. No. 155111, 4 February 2008; Tan v. Jam

Transit, G.R. No. 183198,25 November 2009.
8 VallacarTransit v. Catubig,G.R. No. 175512,30 May 2011.
9
1Castilex v. Vasquez, G.R. No. 132266,21 December 1999.
92 Lampesa v. De Vera, G.R. No. 155111, 4 February 2008; Mercury Drug v.
Huang,G.R No. 172122,22 June 2007.
a. Selection
In the selection of its prospective employees, the

employer is required to examine them as to their
qualifications, experience, and service records.9
b. Supervision
The question of diligent supervision depends on the

circumstances of employment. 94
The law does not require that the employer supervises

the employee in every activity. Evidence proving that
the employer had exercised diligent supervision of its
employee during the performance of the latter's
assigned tasks would be enough. 95
The employer is not expected to exercise supervision
over either the employee's private activities or during
the performance of tasks either unsanctioned by the
former or unrelated to the employee's tasks. 6 (emphasis
supplied)
In practical terms and based on jurisprudence, 97

supervision essentially requires that the employer:
9 formulate standard operating procedures, suit-

able rules and regulations, issuance of proper
instructions;
9 Mercury Drug v. Huang,G.R. No. 172122, 22 June 2007.

94 Valenzuela v. CA, G.R. No. 115024,7 February 1996.
9 Id.
%Id.
97 Mercury Drug v. Huang, G.R. No. 172122, 22 June 2007; Filamer v. LAC,
G.R. No. 75112, 16 October 1990; Phoenix Construction, Inc. v.
InternediateAppellate Court,G.R. No. L-65295, 10 March 1987.
PERSONS VICAOUSLY L E 423
" monitor their implementation; and

" impose disciplinary measures for their breach.
The Court will require concrete proof, including docu-

mentary evidence, to establish compliance with these
requirements.9 8
In Lampesa v. De Vera,99 Juan de Vera, Jr. was a

passenger on a jeepney driven by Modesto Tollas.
Upon reaching the Km. 4 marker of the National
Highway, the jeepney came to a complete stop to
allow a truck owned by Comelio Lampesa, then being
driven by Dario Copsiyat, to cross the path of the
jeepney in order to park at a private parking lot on the
right side of the road. As Tollas began to maneuver
the jeepney slowly along its path, the truck, which
had just left the pavement, suddenly started to slide
back towards the jeepney until its rear left portion hit
the right side of the jeepney. De Vera, Jr., who was
seated in the front passenger seat, noticed his left
middle finger was cut off as he was holding on to the
handle of the right side of the jeepney. De Vera Jr.
filed an action for damages against Lampesa,
Copsiyat, Tollas and Felix Ramos the owner of the
jeepney. The trial court found driver Copsiyat
negligent in the operation of his truck and ruled that
his negligence was the proximate cause of the injuries
suffered by de Vera, Jr. It also ruled that Lampesa did
not exercise due diligence in the selection and super-
vision of his driver, as required under Articles 2176
and 2180. The appellate court affirmed the ruling.
98
MercuryDrug v. Huang, G.R. No. 172122, 22 June 2007.
99 Lampesa v. De Vera, G.R. No. 155111, 4 February 2008.
424 1 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DELiCTS
The Court explained that:
Once negligence on the part of the employee is esta-

blished, a presumption instantly arises that the employer
was negligent in the selection and/or supervision of said
employee. To rebut this presumption, the employer must
present adequate and convincing proof that he exercised
care and diligence in the selection and supervision of his
employees.
The Court found no proof that Lampesa did his legal

duty as an employer in the selection and supervision
of Copsiyat. It explained:
Admitting arguendo that Copsiyat did show his

professional license when he applied for the job of truck
driver, Lampesa should not have been satisfied by the
mere possession of a professional driver's license by
Copsiyat. As an employer, Lampesa was duty bound to
do more. He should have carefully examined
Copsiyat's qualifications, experiences and record of
service, if any. Lampesa must also show that he
exercised due supervision over Copsiyat after his
selection. But all he had shown on record were bare
allegations unsubstantiated by evidence. Having failed
to exercise the due diligence required of him as
employer, Lampesa cannot avoid solidary liability for
the tortuous act committed by his driver, Copsiyat.
In Mercury Drug v. Huang,1o a six-wheeler truck

driven by Rolando Del Rosario and owned by
Mercury Drug, and a car owned by Richard and
Carmen Huang and driven by Stephen Huang figured
in a road accident along the C-5 Highway. At the time
100Mercury Drug v. Huang, G.R. No. 172122,22 June 2007.

PERSONS VICIOUSLY iaU I 425
of the accident, Del Rosario only had a Traffic

Violation Receipt because his driver's license had
been confiscated as he had been previously
apprehended for reckless driving. Stephen was
injured as a result of the collision and despite a series
of operations, he was paralyzed for life from chest
down and required continuous medical and
rehabilitation treatment. The trial court found
Mercury Drug and Del Rosario jointly and severally
liable and the appellate court affirmed this.
The Court affirmed the ruling of the lower courts that

Del Rosario was negligent. Regarding the liability of
an employer, it said:
The liability of the employer under Art. 2180 of the Civil

Code is direct or immediate. It is not conditioned on a
prior recourse against the negligent employee, or a prior
showing of insolvency of such employee. It is also joint
and solidary with the employee.
To be relieved of liability, petitioner Mercury Drug

should show that it exercised the diligence of a good
father of a family, both in the selection of the employee
and in the supervision of the performance of his duties.
Thus, in the selection of its prospective employees, the
employer is required to examine them as to their
qualifications, experience, and service records. With
respect to the supervision of its employees, the employer
should formulate standard operating procedures,
monitor their implementation, and impose disciplinary
measures for their breach. To establish compliance with
these requirements, employers must submit concrete
proof, including documentary evidence. (citations
omitted)
In this case, Mercury Drug presented testimonial
evidence on its hiring procedure. It explained that
applicants are required to take theoretical and actual
driving tests, and a psychological examination.
In the case of Del Rosario, however, it was proven

that:
* he took the driving tests and psychological

examination when he applied for the position
of Delivery Man, but not when he applied for
the position of Truck Man;
" he used a light vehicle, instead of a truck
during the driving tests;
" no tests were conducted on the motor skills
development, perceptual speed, visual atten-
tion, depth visualization, eye and hand coor-
dination and steadiness of Del Rosario;
" NBI and police clearances were not presented;
" Del Rosario attended only three driving
seminars-on June 30, 2001, February 5, 2000
and July 7, 1984. In effect, the only seminar he
attended before the accident which occurred in
1996 was held twelve years earlier in 1984; and
" Mercury Drug did not provide for a back-up
driver for long trips.
The Court also found that Mercury Drug failed to

show that it exercised due diligence in the supervision
and discipline over its employees. On the day of the
accident, Del Rosario was driving without a license.
PERsoNsVicAmousI.Y LE 1 427
Del Rosario said that he reported the incident to his

superior, but nothing was done about it. He was not
suspended or reprimanded. No disciplinary action
whatsoever was taken against Del Rosario.
Thus, the Court affirmed the finding that Mercury

Drug failed to discharge its burden of proving that it
exercised due diligence in the selection and
supervision of its employee, Del Rosario.
D. THE STATE
Article 2180 provides that the State is vicariously

liable when it acts through a special agent, but not
when the official to whom the task done properly
pertains caused the damage. 101
Article 2180, paragraph 6 was taken from Article 1903,

paragraph 5 and is identical to it in substance. 10 2 In
interpreting the provision, the Court in Meritt v.
Government' °3 cited the Supreme Court of Spain which
has said that the State is not responsible for the
damages suffered by private individuals in conse-
101
Article 2180, para. 6 states:
'"The State is responsible in like manner when it acts through a special
agent; but not when the damage has been caused by the official to
whom the task done properly pertains; in which case what is
provided in Article 2176 shall be applicable."
102 Article 1903 states:
"Ihie 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 property devolved the duty of doing the act
performed, in which case the provisions of the next preceding article
10 3
shall be applicable."
Meritt v. Government, G.R. No. 11154,21 March 1916, citing "Supreme
Court of Spain, 7 January 1898; 83 Jur. Civ., 24."
quence of acts performed by its employees in the

discharge of the functions pertaining to their office,
because neither fault nor even negligence can be
presumed on the part of the State in the organization
of branches of the public service and in the
appointment of its agents.104 Thus, if a State agent
dischargingthe functions of his office causes the injury to
the private individual, there is no presumption of negli-
gence on the part of the State.
When an agent performs official functions, the pre-

sumption is that the State was diligent. Although
Article 1903 provides for the vicarious liability of the
State, the Supreme Court of Spain explained that the
State is only liable when it acts through the agency of
a special agent because it is only in this case that the
fault or negligence must be presumed to lie with the
State. It added:
That although in some cases the state might by virtue of
the general principle set forth in article 1902 respond for
all the damage that is occasioned to private parties by
orders or resolutions which by fault or negligence are
made by branches of the central administration acting
in the name and representation of the state itself and as
an external expression of its sovereignty in the exercise
of its executive powers, yet said article is not applicable
in the case of damages said to have been occasioned to
the petitioners by an executive official, acting in the
exercise of his powers, in proceedings to enforce the
collections of certain property taxes owing by the owner
104 Meritt v. Government, G.R. No. 11154,21 March 1916, citing "Supreme
Court of Spain, 7 January 1898; 83 Jur. Civ., 24."
PERsoNs VICAROUSLY IABLE I 429
of the property which they hold in sublease. 10 (emphasis

supplied)
Thus, in that case, the Supreme Court of Spain did not

discount the possibility of the State being liable under
Article 1902.106 It also said that the Article 1903 was
not applicable if an executive official, acting in the
exercise of his powers, caused the damage.
The Court in Meritt cited another decision of the

Supreme Court of Spain'0 7 where it said the respon-
sibility of the State is limited by Article 1903 to the
case wherein it acts through a special agent. It defined
a special agent as "one who receives a definite and
fixed order or commission, foreign to the exercise of
the duties of his office if he is a special official." 108 It
further explained that this concept did not apply to
any executive agent who is "an employee of the active
administration and who in his own responsibility
performs the functions which are inherent in and
naturally pertain to his office and which are regulated
by law and the regulations."'10 9
More recent jurisprudence also provides that if the

agent is a public official, he "must not only be spe-
cially commissioned to do a particular task but that
such task must be foreign to said official's usual
governmental functions.""10 However, if the agent "is
105 Id.
106 This is the article on which Article 2176 was based.
107 Supreme Court of Spain, 18 May 1904; 98 Jur. Civ., 389,390.
108 Id.
109 Id.
o10
Spouses Fontanillav. Maliaman,G.R. No. 55963,1 December 1989.
430 I ANA.YSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DELICTS
not a public official, and is commissioned to perform

non-governmental functions, then the State assumes
the role of an ordinary employer and will be held
liable as such for its agent's tort.""' But if "the
government commissions a private individual for a
special governmental task, it is acting through a spe-
cial agent within the meaning of the provision.' 1 2
In the same case, the Court ruled that the liability of

the government when it acts though a special agent
contemplates a situation where the government is ac-
ting in its public or governmental aspects." 3
In this case, the Court distinguished between govern-

mental and non-governmental functions in this way:
Certain functions and activities, which can be per-
formed only by the government, are more or less
generally agreed to be "governmental" in character, and
so the State is immune from tort liability. On the other
hand, a service which might as well be provided by a
private corporation, and particularly when it collects
revenues from it, the function is considered a
"proprietary" one, as to which there may be liability for
the torts of agents within the scope of their employment.
114 (emphasis supplied)
Thus, based on this case, governmental functions are

those which only government can provide. While
there are dear examples of this (e.g. legislation), it is
not inconceivable that services currently in the hands
111
Id.
112 Id.
113 Id.
"4 Id.
PESONS VICAMOUSLYU ALE I 431
of government can actually be handled better by the
private sector. Therefore, what can or cannot be
handled by the private sector can be highly debatable
and is not easily settled by looking at whether the
government is currently handling such service. Aside
from the question as to whether a service can be
handled only by the government, there is also the
question of whether a particular service should be only
handled by the government.
If the test to determine the nature of the government's

functions (i.e. whether governmental or not) is whe-
ther the said function can only be or should only be
handled by the government, the doctrine on the
State's liability for its special agent would be un-
certain and ambiguous under many situations. It also
becomes nearly impossible to apply where the govern-
ment agency performs both governmental and non-
governmental functions.
Certainly, the framers of the text of the Civil Code did

not intend that the application of Article 2180,
paragraph 6 be subject to such uncertainty. The said
paragraph itself does not state that it only applies in
situations where the agent is performing govern-
mental functions. It would be simpler to apply if the
nature of the functions performed by the agent is not
considered but only whether the agent is "special."
In Meritt v. Government,115 the ambulance of the

General Hospital hit E. Merritt, who was riding a
motorcycle, when the former suddenly and unexpect-
115 Meritt v. Government, G.R. No. 11154, 21 March 1916.

432 I AMAYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DELCTS
edly turned without having sounded any whistle or

horn and in violation of traffic rules. Having suffered
physical injuries, Merritt sued for damages.
The issue in this case was whether the Government of

the Philippine Islands ("Government") was legally
liable for the damages resulting from negligence com-
mitted by an agent or employee of the Government.
The Court noted that Act No. 2457 ("Act") authorized

Merritt to bring the action against the Government:
* in order to fix the responsibility for the collision

between his motorcycle and the ambulance of
the General Hospital; and
" to determine the amount of the damages, if
any, to which Mr. E. Merritt is entitled on
account of said collision.
The Court decided that the accident was due solely to

the negligence of the chauffeur, who was at the time
an employee of the Government, and the Court also
fixed the amount of damages sustained by Merritt as a
result of the collision.
But there was an issue as to whether the Act autho-

rized the Court to hold that the Government was
legally liable for that amount. If not, the Court said
that it must look elsewhere for such authority, if it
existed.
The Court noted that in the United States, the rule was
that the State was not liable for torts committed by its
officers or agents whom it employs, except when
PERSONS VCAmOUSLY LALE I 433
expressly made so by legislative enactment. Quoting a

16
U.S. legal authority:
By consenting to be sued a state simply waives its

immunity from suit. It does not thereby concede its
liability to plaintiff, or create any cause of action in his
favor, or extend its liability to any cause not previously
recognized. It merely gives a remedy to enforce a
preexisting liability and submits itself to the jurisdiction
of the court, subject to its right to interpose any lawful
17
defense.
The Court also cited Sipple v. State,118 where it was

said that:
It must be conceded that the state can be made liable for
injuries arising from the negligence of its agents or
servants, only by force of some positive statute assuming
such liability." 9
Because it found that Act No. 2457 did not operate to

extend the Government's liability to any cause not
previously recognized, the Court examined the
substantive law touching the Government's liability
for the negligent acts of its officers, agents, and
employees.
The Court quoted paragraph 5 of what was then

Article 1903 of the Civil Code, which stated:
The state is liable in this sense when it acts through a

special agent, but not when the damage should have
116 Cited in the case as "36 Cyc., 915."

117 Id.
118 Cited in the case as "99 N.Y., 284."
119 Id.
been caused by the official to whom properly it

pertained to do the act performed, in which case the
provisions of the preceding article shall be applicable.
Thus, Article 1903 was a situation where the State

allowed itself to be sued and made liable but only for
the acts of a special agent.
The Court then quoted from a decision of the

Supreme Court of Spain:
the state by virtue of such provision of law, is not

responsible for the damages suffered by private indi-
viduals in consequence of acts performed by its
employees in the discharge of the functions pertaining to
their office, because neither fault nor even negligence
can be presumed on the part of the state in the
organization of branches of the public service and in
the appointment of its agents.120 (emphasis supplied)
In another case, the Supreme Court of Spain was

quoted to have said the reason for the liability of the
State only for the acts of a special agent was because
"in this case, the fault or negligence, which is the
original basis of this kind of objections, must be
presumed to lie with the State" and further stated:
That although in some cases the state might by virtue of
the general principle set forth in article 1902 respond
for all the damage that is occasioned to private parties
by orders or resolutions which by fault or negligence
are made by branches of the central administration
acting in the name and representation of the state itself
and as an external expression of its sovereignty in the
exercise of its executive powers, yet said article is not
1w Cited in the case as "Supreme Court of Spain, 7 January 1898; 83 Jur.

Civ., 24."
PERsONSVICRIousLYLLE I 435
applicable in the case of damages said to have been

occasioned to the petitioners by an executive official,
acting in the exercise of his powers, in proceedings to
enforce the collections of certain property taxes owing by
the owner of the property which they hold in sublease.
That the responsibility of the state is limited by article

1903 to the case wherein it acts through a special agent
(and a special agent, in the sense in which these words
are employed, is one who receives a definite and fixed
order or commission, foreign to the exercise of the
duties of his office if he is a special official) so that in
representation of the state and being bound to act as an
agent thereof he executed the trust confided to him. This
concept does not apply to any executive agent who is an
employee of the active administration and who in his
own responsibility performs the functions which are
inherent in and naturally pertain to his office and
which are regulated by law and the regulations. 121
(emphasis supplied)
It quoted from another decision, which stated:
That according to paragraph 5 of article 1903 of the Civil

Code and the principle laid down in a decision, among
others, of the 18th of May, 1904, in a damage case, the
responsibility of the state is limited to that which it
contracts through a special agent, duly empowered by a
definite order or commission to perform some act or
charged with some definite purpose which gives rise to
the claim, and not where the claim is based on acts or
omissions imputable to a public official charge with
some administrative or technical officer who can be
held to the proper responsibility in the manner laid
down by the law of civil responsibility. Consequently,
the trial court in not so deciding and in sentencing the
said entity to the payment of damages, caused by an
12 Cited in the case as "Supreme Court of Spain, 18 May 904; 98 Jur.

Civ., 389,390."
official of the second class referred to, has by erroneous

interpretation infringed the provisions of articles 1902
and 1903 of the Civil Code.122 (emphasis supplied)
The Court ruled that the State' 23 is only liable, ac-

cording to the above-quoted decisions of the Supreme
Court of Spain, for the acts of its agents, officers and
employees when they act as special agents within the
meaning of paragraph 5 of Article 1903, and that the
chauffeur of the ambulance of the General Hospital
was not such an agent.
In Rosete v. Auditor General,124 Inocencio Rosete owned

buildings which were destroyed by fire from the
warehouse of the Emergency Control Administration
("ECA"), an office or agency of the Government. The
fire was allegedly caused by the negligence of Jose
Frayno y Panlilio, who recklessly ignited his cigarette
lighter near a five gallon drum into which gasoline
was being drained, and by the negligence of the
officers of the ECA in storing gasoline in the
warehouse, contrary to the provisions of ordinances
of the City of Manila. Because his claim was rejected
by the Insular Auditor, Rosete appealed to the
Supreme Court.
Rosete contended that the Auditor General erred in

not finding that the government agency or instru-
mentality known as the ECA or the officers thereof,
were guilty of negligence in storing a highly com-
12 Cited in the case as 'Supreme Court of Spain, 30 July 1911; 122 Jur.
Civ., 146."
MIdentified by the Court as the Government of the Philippine Islands.
124 Rosete v. Auditor General, G.R. No. L-1120, 31 August 1948.
PERSONS ViCAROUSLY LALE 1437
bustible and inflammable substance in its warehouse

or bodega in Manila in violation of City Ordinances.
He also alleged that the government was liable for the
damages sustained by the claimant under Article 1903
of the Civil Code.
After quoting Article 1903 and Meritt v. Government of

the PhilippineIslands, the Court said:
There being no showing that whatever negligence may
be imputed to the Emergency Control Administration or
its officers, was done by an special agent, because the
officers of the Emergency Control Administration did
not act as special agents of the government within the
above defined meaning of that word in article 1903 of the
Civil Code in storing gasoline in warehouse of the ECA,
the government is not responsible for the damages
caused through such negligence.0
Thus, the Court ruled that the government was not

responsible because it was not proven that the injury
was caused by a special agent of the government.
In a dissenting opinion, Justice Perfecto, referring to
Articles 1902 and 1903, said:
The foregoing provisions present two situations:
1. When the state "acts through a special agent."

2. When an act is performed by an official "Upon whom
previously devolved the duty of doing the act
performed".
In the first case, the State is subject to liability for

damages caused by the special agent.
12 Merittv. Government, G.R. No. 11154,21 March 1916.

In the second case, it is the official, not the State, who is

liable for damages caused by the act he performed.
The controversy in this case is narrowed down to the

question of whether or not the ECA is the special agent
mentioned in article 1903 of the Civil Code.
Our conclusion is that it is.
Paragraph 5 of Article 1903 of the Civil Code distin-

guishes the special agent from the official with specific
duty or duties to perform. Under the meaning of the
paragraph, the word official comprises all officials and
employees of the government who exercise duties of
their respective public offices. All others who are acting
by commission of the government belong to the class of
special agents, whether individual or juridical bodies.
The ECA was not a branch or office of the government,

such as the legislative bodies, the executive offices, or the
tribunals. It was an agency set up for specific purposes
which were not attainable through the official functions
entrusted by law to the government or its branches.
The ECA was one of the groups of special agents created

by the government for activities ordinarily ungovern-
mental in character, such as the Philippine National
Bank, the National Development Company, the National
Coconut Corporation, the National Tobacco Corporation,
and many other government enterprises.
In qualifying the special agent with the adjective

"special", the Civil Code aimed at distinguishing it from
the regular or ordinary agent of government, which
refers to all officers and employees in the public service.
There cannot be any dispute that all persons in the active
service of the government, regardless of department or
branch, are agents of the State or of the people. All of
them are properly designated as servants of the people.
Servants are agents.
PERSONs VIcAROuSLY LIABLE 1439
The Civil Code uses the adjective "special", because its

authors could not miss the fact that the official,
mentioned in paragraph 5 of Article 1903, is also an
agent.
It seems that in Justice Perfecto's opinion, a special

agent is one performing non-governmental functions.
In Fontanillav. Maliaman,126 a pick-up owned and ope-

rated by National Irrigation Administration ("NIA"),
and driven officially by Hugo Garcia, an employee of
the said government agency, bumped a bicycle ridden
by Francisco Fontanilla. Francisco was injured and
later died from his injuries. The parents of Francisco
sued NIA for damages.
After quoting Article 2176 and paragraphs 5 and 6 of
Article 2180, the Court explained that:
The liability of the State has two aspects, namely:
1. Its public or governmental aspects where it is liable

for the tortious acts of special agents only.
2. Its private or business aspects (as when it engages
in private enterprises) where it becomes liable as an
ordinary employer. (Civil Code of the Philippines, p.
961; Annotated, Paras, 1986 Ed.).
In this jurisdiction, the State assumes a limited liability

for the damage caused by the tortious acts or conduct of
its special agent.
Under the aforequoted paragraph 6 of Art. 2180, the

State has voluntarily assumed liability for acts done
through special agents. The State's agent, if a public
12 Fontanillav. Maliaman, G.R. No. 55963,1 December 1989.

official, must not only be specially commissioned to do

a particular task but that such task must be foreign to
said official's usual governmental functions. If the
State's agent is not a public official, and is commissioned
to perform non-govern mental functions, then the State
assumes the role of an ordinary employer and will be
held liable as such for its agent's tort. Where the
government commissions a private individual for a
special governmental task, it is acting through a special
agent within the meaning of the provision. (Torts and
Damages, Sangco, p. 347,1984 Ed.).
Certain functions and activities, which can be performed

only by the government, are more or less generally
agreed to be "governmental" in character, and so the
State is immune from tort liability. On the other hand, a
service which might as well be provided by a private
corporation, and particularly when it collects revenues
from it, the function is considered a "proprietary" one, as
to which there may be liability for the torts of agents
within the scope of their employment. (emphasis
supplied)
Applying these principles, the Court ruled that NIA

was an agency of the government exercising proprie-
tary functions. It added:
Since it is a corporate body performing non-govern-

mental functions, it now becomes liable for the damage
caused by the accident resulting from the tortious act of
its driver-employee. In this particular case, the NIA
assumes the responsibility of an ordinary employer and
as such, it becomes answerable for damages.
At this juncture, the matter of due diligence on the part

of respondent NIA becomes a crucial issue in
determining its liability since it has been established that
respondent is a government agency performing proprie-
tary functions and as such, it assumes the posture of an
PERSONS VICaOUsLY I.LE 1441
ordinary employer which, under paragraph 5 of Article

2180, is responsible for the damages caused by its
employees provided that it has failed to observe or
exercise due diligence in the selection and supervision of
the driver.
The Court found that there was negligence in the

supervision of the driver and held NIA liable for
damages.
NIA filed a Motion for Reconsideration, where it

argued that, on the strength of Presidential Decree
No. 552 and the case of Angat River IrrigationSystem, et
al. vs. Angat River Workers' Union,127 the NIA did not
perform solely and primarily proprietary functions
but was an agency of the government tasked with
governmental functions, and was therefore not liable
for the tortious act of its driver Hugo Garcia, who was
not its special agent.
In its En Banc Resolution, 128 the Court denied this

motion. It explained:
Although the majority opinion in the cited case of Angat

System declares that the Angat System (like the NIA)
exercised a governmental function because the nature of
the powers and functions of said agency does not show
that it was intended to "bring to the Government any
special corporate benefit or pecuniary profit," there is a
strong dissenting opinion penned by then Associate
Justice and later Chief Justice Roberto Concepcion and
concurred in by then Associate Justice J.B.L. Reyes which
held the contrary view that the Angat River System is a
government entity exercising proprietary functions. To
1v Cited in the case as "102 Phil. 790."

2
Fontanillav. Maliaman, G.R. Nos. 55963 and 61045,27 February 1991.
buttress said stand, the former Chief Justice cited some
authorities which will be useful in the proper resolution
of this case.
Quoting from said dissenting opinion which cited

McQuillin's The Law of Municipal Corporations, 3rd ed.,
Vol. 18, pp. 423-424:
In undertaking to supply water at price, municipality

is not performing governmental function but is en-
gaged in trade, and is liable first as private company
would be for any negligence in laying out of its pipes,
in keeping them in repair, or in furnishing potable
water through them. Harvard Furniture Co., Inc. vs.
City of Cambridge,320 Mass. 227,68 N.E. (2d) 684.
Municipality in contracting to provide water supply

acts under its proprietary power and not under its
legislative, public or governmental powers. Farmers'
State Bank vs. Conrad,100 Mont 415,47 P. (2d) 853.
In this connection, the opinion is that irrigation districts

in the United States are basically identical to our
irrigation systems under Act No. 2152. Because of such
similarity, it is found appropriate to consider certain
doctrines from American jurisprudence, which are as
follows, to wit:
An irrigation district is a public quasi corporation,

organized, however, to conduct a business for the
private benefit of the owners of land within its limits.
They are members of the corporation, control its
affairs, and alone are benefited by its operations. It is,
in the administration of its business, the owner of its
system in a proprietary rather than a public capacity,
and must assume and bear the burdens of proprietary
ownership. (Nampa vs. Nampa & M. Irrig. Dist., 19
Idaho, 779,115 Pac. 979)
... the plaintiff sought damages for injuries to crops on

his land during 1923, 1924, 1925, and 1926, caused by
water seeping, percolating, and escaping from the
PERSONs VICAIOUSLY .L I 443
defendant's canal. The defendant contended that irri-
gation districts were agencies of the state, and were,
therefore, not liable for the negligent construction or
operation of their canals or ditches. The court, after a
careful review of the authorities defining an irrigation
district, conceded that such a quasi public corporation
possessed some governmental powers and exercised
some governmental functions, but held that the cons-
truction and operation of its irrigation canals and
ditches was a proprietary rather than a governmental
function, and hence the district was responsible in
damages for the negligent construction or operation of
its canal system. (69 A.L.R., p. 1233)
The Court then reiterated the two functions of

government.
It may not be amiss to state at this point that the

functions of government have been classified into
governmental or constituent and proprietary or minis-
trant. The former involves the exercise of sovereignty
and considered as compulsory; the latter connotes
merely the exercise of proprietary functions and thus
considered as optional. The Solicitor General argues that
the reasons presented by P.D. 552 for the existence of the
NIA (the WHEREAS clauses of said decree) indubitably
reveal that the responsibility vested in said agency
concerns public welfare and public benefit, and is
therefore an exercise of sovereignty. On the contrary, We
agree with the former Chief Justice Concepcion in saying
that the same purpose such as public benefit and public
welfare may be found in the operation of certain
enterprises (those engaged in the supply of electric
power, or in supplying telegraphic, telephonic, and radio
communication, or in the production and distribution of
prime necessities, etc.) yet it is certain that the functions
performed by such enterprises are basically proprietary
in nature.
444 I ANALYSIS OF PHIUPPINE LAw AND JURISPRUDENCE ON TORTS AND QuAsI-DELICTS
The Court quoted from Holderbaum vs. Hidalgo County

Water Improvement District:1 29
... Primarily, a water improvement district is in no better
position than a city is when exercising its purely local
powers and duties. Its general purposes are not essen-
tially public in their nature, but are only incidentally so;
those purposes may be likened to those of a city which is
operating a waterworks system, or an irrigation system
.... A water improvement district can do nothing; it has
and furnishes no facilities, for the administration of the
sovereign government. Its officers have no power or
authority to exercise any of the functions of the general
government, or to enforce any of the laws of the state or
any of its other subdivisions, or collect taxes other than
those assessed by the district. They have no more power
or authority than that of the officers of a private corpo-
ration organized for like purposes. As a practical matter,
the primary objects and purposes of such district are of a
purely local nature, for the district is created and
operated for the sole benefit of its own members, and an
analysis of those objects and purposes discloses that they
directly benefit only the landowners who reside within
and whose lands form a part of the district, to the
exclusion of all other residents therein. It is true, of
course, that the state and the general public are greatly
benefited by the proper operation of the district, and to
that extent its objects and accomplishments are public in
their nature, but this characteristic is only incidental to
the primary and chief object of the corporation, which is
the irrigation of lands forming a part of the district. It is
obvious, then, that the purposes and duties of such
districts do not come within the definition of public
rights, purposes, and duties which would entitle the
district to the exemption raised by the common law as a
Cited in the case as "297 S.W. 865, aff'd in 11 S.W. [2d] 506."
PERSONS VICmAJOUSLY LIsEI 445
protection to corporations having a purely public

purpose and performing essentially public duties. 130
The Court also cited National Waterworks and Sewerage

Authority (NAWASA) vs. NWSA Consolidated Unions,131
where it was said that "the NAWASA is not an agency
performing governmental functions; rather it per-
forms proprietary functions .... It explained that:
The functions of providing water supply and sewerage

service are regarded as mere optional functions of
government even though the service rendered caters to
the community as a whole and the goal is for the general
interest of society.
The Court also quoted from Metropolitan Water District

vs. Court of Industrial Relations,132 and said that the
business of furnishing water supply and sewerage
service "may for all practical purposes be likened to
an industry engaged in by coal companies, gas com-
panies, power plants, ice plants, and the like." Citing
McQuillin:
Withal, it has been enunciated that "although the State
may regulate the service and rates of water plants owned
and operated by municipalities, such property is not
employed for governmental purposes and in the
ownership and operation thereof the municipality acts in
its proprietary capacity, free from legislative inter-
ference. 1a3
130 Id.
131 Cited in the case as "11 SCRA 766."
132 Cited in the case as '91 Phil. 840."
Cited in the case as "1McQuilin, p. 683."
133
The Court found:

Like the NAWASA, the National Irrigation Adminis-
tration was not created for purposes of local govern-
ment. While it may be true that the NIA was essentially a
service agency of the government aimed at promoting
public interest and public welfare, such fact does not
make the NIA essentially and purely a "government-
function" corporation. NIA was created for the purpose
of "constructing, improving, rehabilitating, and adminis-
tering all national irrigation systems in the Philippines,
including all communal and pump irrigation projects."
Certainly, the state and the community as a whole are
largely benefited by the services the agency renders, but
these functions are only incidental to the principal aim of
the agency, which is the irrigation of lands.
We must not lose sight of the fact that the NIA is a

government agency invested with a corporate per-
sonality separate and distinct from the government, thus
is governed by the Corporation Law.
After quoting provisions of Republic Act No. 3601, the

law creating the NIA, the Court concluded that the
NIA was a government agency with a juridical per-
sonality separate and distinct from the government.
As such, it was not a mere agency of the government
but a corporate body performing proprietary func-
tions. Thus, it may be held liable for the damages
caused by the negligent act of its driver who was not
its special agent.
In this case, Justice Feliciano, while concurring with

the ruling that NIA was liable for the acts of its
employee, reached the conclusion via a different
route. He said:
PERSONS VICRIOUSLY LIABLE 1447
I would respectfully submit that the liability of an

agency or instrumentality of the Government for torts of
its employees under 6%paragraph of Article 2180 of the
Civil Code is not contingent upon the technical
characterization of the functions or activities carried out
by that agency or instrumentality as "governmental," on
the one hand, or "proprietary," upon the other.
In the first place, it is merely commonplace to note that

governments in our day and age do not restrict them-
selves to the original basic and primitive functions of
repelling invasion by a foreign enemy, maintaining
peace and order in society and protecting the physical
integrity or the food supplies of its citizens or inhabi-
tants, but instead assumed and carry out all kinds of
activities which they may determine to redound to the
general interest and benefit of the population. Thus, the
classical laissez-faire concept of a state, which prevailed
during the 19 h century, has today been replaced by the
concept of the welfare state. Moreover, activities which
in other states more economically advanced than our
own have been undertaken by private enterprise, are
here still being carried out by the Government or, more
generally, the public sector in view of the inadequacy of
private capital and private entrepreneurial spirit.
Secondly, under Section 2(1) of Article DC of the

Constitution, whether or not a government owned or
controlled corporation or entity forms part of the
Government and is embraced within the civil service
depends, not upon the "governmental," as distinguished
from "proprietary," nature of the activities performed by
such entity or corporation, but rather upon whether or
not the corporation or entity is possessed of an "original
charter." Thus, it appears to me that the framers of the
1987 Constitution had given up the notion of trying to
distinguish between "governmental" and "proprietary"
functions for purposes of determining whether
employees of a particular agency or instrumentality
448 1 ANALYSIS OF PHIUPPINE LAw AND JURISPRUDENCE ON TORTS AND QUASI-DELICTS
should be governed by the Civil Service Law and

Regulations or, alternatively, by the Labor Code and its
Implementing Regulations administered by the National
Labor Relations Commission and the Department of
Labor and Employment.
Justice Feliciano also argued that the term "State" as

used in Article 2180 properly refers to the "Govern-
ment of the Republic of the Philippines" as defined in
Section 2 of the Revised Administrative Code of 1987
in the following manner:
The Government of the Republic of the Philippines refers
to the corporate governmental entity through which the
functions of government are exercised throughout the
Philippines, including save as the contrary appears from
the context, the various arms through which political
authority is made effective in the Philippines, whether
pertaining to the autonomous regions, the provincial,
city, municipal or barangay subdivisions or other forms
of local government.
Thus, according to Justice Feliciano:

the term 'State" as used in Article 2180 of the Civil Code
refers to that juridical person that is constituted by the
Government of the Republic of the Philippines and
logically does not include agencies, instrumentalities or
other entities which their enabling laws have invested
with juridical personality separate and distinct from that
of the Republic of the Philippines.
In support of this argument, Justice Feliciano cited

Meritt v. Government as well as a decision of the
Supreme Court of Spain which was cited in the said
case. He said that in Mertt, the Court considered "the
State" and "the Government of the Philippine Islands"
PERSONS VICARIOUSLY UAE I 449
as equivalent terms. He also said that in the decision

of the Supreme Court of Spain, the term 'juridical"
person was translated as 'Judicial" person, which was
plain error. Thus, he said that:
the decision of the Supreme Court of Spain itself
recognized that between private persons and the State,
relations of a private nature governed by the Civil Code
can arise where the State acts as or through the medium
of a separate juridical person that is capable of acquiring
rights and entering into obligations.
In Spouses Jayme v. Apostol,134 the Court ruled that the

employer of person who injured Jayme was the
municipality of Koronadal. It also ruled that the
municipality may not be sued because it is an agency
of the State engaged in governmental functions and,
hence, immune from suit.
It argued that this immunity is illustrated in Munici-

5
pality of San Fernando,La Union v. Firne:13
It has already been remarked that municipal corpo-

rations are suable because their charters grant them the
competence to sue and be sued. Nevertheless, they are
generally not liable for torts committed by them in the
discharge of governmental functions and can only be
held answerable only if it can be shown that they were
acting in proprietary capacity. In permitting such entities
to be sued, the State merely gives the claimant the right
to show that the defendant was not acting in
governmental capacity when the injury was committed
or that the case comes under the exceptions recognized
134 Spouses Jayme v. Apostol, G.R. No. 163609, 27 November 2008.

135 Municipality of San Fernando,La Union v. Firme, G.R. No. 52179,8 April
1991.
by law. Failing this, the claimant cannot recover.
(emphasis supplied)
This ruling implies that "State" under Article 2180

includes local government units with their own
charters. However, it is not clear from the facts of the
case how the Court determined that the driver was
performing governmental functions at the time.
Although the municipality assigned the driver to the
mayor, the purpose of the trip was not mentioned in
the decision. Also, if the mayor was being driven on
official business, it was not explained why a
government vehicle was not used but a private
vehicle in possession of a person who was not even
the owner.
Citation:
Tue Apr 17 10:46:30 2018



VII. Persons Specifically Liable
Subject to valid legal defenses, any person may be

liable for a quasi-delict or tort. But the law also iden-
tifies specific individuals as being liable for particular
types of injuries under certain conditions. This chap-
ter discusses the rules pertaining to the liability of
specific actors for injuries falling within certain para-
meters.
Some of the provisions discussed below are found in

the chapter of the Civil Code on quasi-delicts. If so,
one issue is whether these provisions cover types of
quasi-delicts. If these provisions provide for types of
quasi-delicts, then plaintiffs must prove that the
elements of a quasi-delict are present in each case.
However, that means these provisions would be
redundant as each case would fall under Article 2176
anyway. It is therefore arguable that although these
provisions are found in the chapter on quasi-delicts,
they are not quasi-delicts but torts and therefore need
not comply with the requirements for quasi-delicts
(e.g. proving negligence and proximate cause).
Another way to resolve the issue is to say that Article

2176 defines one type of quasi-delict while the other
provisions in the chapter provide for other types.
Thus, they are all quasi-delicts, but only quasi-delicts
under Article 2176 are required to comply with the
requirement of proving negligence and proximate
cause. The problem with this interpretation is that
452
PERSONS SPECIFICALLY LIABLE 1453
when jurisprudence refers to "quasi-delicts," it in-

variably refers to a situation covered by Article 2176.
A. POSSESSOR OR USER OF ANIMALS
Article 21831 provides that the possessor or user of an

animal is responsible for the damage which it may
cause. This responsibility remains even if the animal
escapes or is lost. 2 This responsibility ceases only in
case the damage should come from force majeure or
from the fault of the person who has suffered
damage.3
The person responsible under this rule is the

possessor or user of an animal. Thus, the respon-
sibility does not stem from ownership but possession
or use. As to the possessor of an animal, his
responsibility arises from the fact that the animal is
within his control. As to the user, his responsibility
arises from the fact that he benefits from the animal.
An interesting question would be: Can an injured

person sue the user but not the possessor or vice-versa
in the event that these are two different people? It
may be argued that based on a literal interpretation of
the text, the injured party is allowed to choose to hold
either the user or possessor liable. Assuming this to be
I ARTICLE 2183. The possessor of an animal or whoever may make use

of the same is responsible for the damage which it may cause,
although it may escape or be lost This responsibility shall cease only
in case the damage should come from force majeure or from the fault
of the person who has suffered damage. (1905)
2 Id.
3 Id.
454 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DELiuCTS
the case, and the injured party sues the user, can the
latter raise as a defense that that it was the negligence
of the possessor which caused the injury? This may be
a viable defense if Article 2183 is considered a kind of
quasi-delict.
However, if Article 2183 is a quasi-delict, then the

injured party will be required to prove negligence on
the part of the user and that such negligence was the
proximate cause of the injury. If so, what is the point
of having Article 2183 if the situation it covers is
covered by Article 2176 anyway? Also, Article 2183
does not appear to require that the possessor or user
be negligent, and due diligence on his part does not
appear to be a possible defense. What the law appears
to contemplate in this case is making the possessor or
user of an animal liable regardless of negligence or
due diligence. The basis of the liability of the user or
possessor appears to be based on his ability to prevent
the damage or benefits derived from the animal.
Therefore, the liability appears to be based on policy
consideration and not on making the negligent person
liable.
Thus, if Article 2183 is not a quasi-delict, then the user

cannot raise the defense that the injury was caused by
the negligence of the possessor.
In one case, the Court explained that:

the obligation imposed by Article 2183 of the Civil Code
is not based on the negligence or on the presumed lack of
vigilance of the possessor or user of the animal causing
the damage. It is based on natural equity and on the
PERSONS SPECIFICALLY LIABLE 1 455
principle of social interest that he who possesses

animals for his utility, pleasure or service must answer
4
for the damage which such animal may cause.
(emphasis supplied)
Furthermore, it does not matter if the animal was not

under the control of the possessor or user at the time
the injury is caused because the rule provides that the
responsibility does not cease even if the animal
escapes or is lost.
There are only two available defenses allowed under

Article 2183:
" damage comes from force majeure; or

" damage is from the fault of the person who has
suffered damage
In Afialda v. Hisole,5 the Court affirmed the ruling of

the trial court that Article 1905 of the old Civil Code,
from which Article 2183 was adopted, did not apply
where the caretaker of the animal himself was injured.
Therefore, based on this case, the possessor of the
animal cannot make use of Article 2183 against the
owner.
In Vestil v. LAC,6 Theness Uy, a 3-year old child, was

allegedly bitten by a dog named "Andoy" while
playing with the child of the spouses Vestil in the
house of Vicente Miranda, father of Purita Vestil.
After several days, she died. The parents of Theness
4 Vestil v. AC,G.R. No. 74431,6 November 1989.

5 Aflalda v. Hisole, G.R. No. L-2075, 29 November 1949.
6 Vestil v. AC,G.R. No. 74431,6 November 1989,
sued for damages, alleging that the Vestils were liable
to them as the possessors of "Andoy," the dog that bit
and eventually killed their daughter. The trial court
absolved the Vestils from liability but the appellate
court reversed this ruling.
The Court decided that what must be determined is

the possession of the dog that admittedly was staying
in the house in question, regardless of the ownership
of the dog or of the house.
The Court found that while it was true that Purita was
not really the owner of the house, which was still part
of Vicente Miranda's estate, there was no doubt that
she and her husband were its possessors at the time of
the incident in question. Interestingly, her own
daughter was playing in the house with Theness
when the dog bit the little girl.
The Court also ruled that Vestil's contention that they

could not be expected to exercise remote control over
the dog was not acceptable. It pointed out that Article
2183 of the Civil Code holds the possessor liable even
if the animal should "escape or be lost" and so be
removed from his control.
It also pointed out that it did not matter that the dog
was tame and was merely provoked by the child into
biting her because the law does not speak only of
vicious animals but covers even tame ones as long as
they cause injury.
PERSONS SPECIFICALLY LIABLE I 457

According to Manresa, the obligation imposed by Article
2183 of the Civil Code is not based on the negligence or
on the presumed lack of vigilance of the possessor or
user of the animal causing the damage. It is based on
natural equity and on the principle of social interest that
he who possesses animals for his utility, pleasure or
service must answer for the damage which such animal
may cause.
B. OWNER OF MOTOR VEHICLES
Article 21847 provides that in motor vehicle mishaps,

the owner is solidarily liable with his driver if the
former, who was in the vehicle, could have, by the use
of due diligence, prevented the misfortune. If the
owner was not in the motor vehicle, the provisions of
Article 2180 are applicable.
In Caedo v. Yu K(he Thai, the Court explained that

under this rule, "if the causative factor was the dri-
ver's negligence, the owner of the vehicle who was
present is likewise held liable if he could have pre-
vented the mishap by the exercise of due diligence." 8
This means that the proximate cause of the accident
must be the negligence of the driver.
7 Article 2184. In motor vehicle mishaps, the owner is solidarily liable

with his driver, if the former, who was in the vehicle, could have, by
the use of the due diligence, prevented the misfortune. It is disputably
presumed that a driver was negligent, if he had been found guilty of
recidess driving or violating traffic regulations at least twice within
the next preceding two months.
If the owner was not in the motor vehicle, the provisions of article
2180 are applicable. (n)
8 Caedo v.Yu Khe Thai, G.R. No. L-20392,18 December 1968.
458 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QuASi-DEUcTS
The Court further said that the rule was not new
because it was stated in the case of Chapman v.
Underwood.9 But it was formulated as law for the first
time in the Civil Code in Article 2184.10
The Court also explained that:

The basis of the master's liability in civil law is not
respondent superior but rather the relationship of pater
familias. The theory is that ultimately the negligence of
the servant, if known to the master and susceptible of
timely correction by him, reflects his own negligence if
he fails to correct it in order to prevent injury or
damage."
This means that the Court considers Article 2184 as a

form of vicarious liability. The negligence of the
driver is not the negligence of the owner; the latter
has his own separate negligence. This is similar to the
rule on the employer's vicarious liability under
Article 2180. But it seems that instead of the pre-
sumption of negligence under Article 2180, under
Article 2184, the plaintiff must prove that the owner
who was in the car could have prevented the mishap
in the exercise of diligence. This may be extremely
difficult to prove as the evidence of this would be
testimonies of persons inside the car.
9 Chapman v. Underwood,G.R. No. 9010,28 March 1914.

10 This a curious statement because the rule is substantive in nature and
not merely procedural. While the legislature may codify judicial
rulings, such rulings may not, on its own, create substantive rights but
merely interpret existing substantive rights.
11
Caedo v. Yu Khe Tai, G.R. No. L-20392,18 December 1968.
PERSONS SPECFICALLY LIAaLE 459
As for the standard of diligence required, the same

case said that "[c]ar owners are not held to a uniform
and inflexible standard of diligence as are professional
drivers.' 2 It explained that the Court would have to
look at the personal circumstances of the owner. The
test of whether the owner was negligent, within the
meaning of Article 2184, "is his omission to do that
which the evidence of his own senses tells him he
3
should do in order to avoid the accident.'
In Chapman v. Underwood,14 the accident occurred at

the time when there was still a single-track street-car
line running along Calle Herran, with occasional
switches to allow cars to meet and pass each other.
One of these switches was located at the scene of the
accident. J.H. Chapman wanted to board a certain
"San Marcelino" car coming from Santa Ana and
bound for Manila. The car was a dosed one, the
entrance being from the front or the rear platform.
Chapman attempted to board the front platform but,
seeing that he could not reach it without extra
exertion, stopped beside the car, facing toward the
rear platform, and waited for it to come abreast of him
in order to board. While in this position, he was struck
from behind and run over by James Underwood's
automobile. Underwood entered Calle Herran at Calle
Pefiafrancia in his automobile driven by his chauffeur,
a competent driver. A street-car bound from Manila to
Santa Ana being immediately in front of him, he
followed along behind it. Just before reaching the
12id.
13 Id.
14 Chapman v. Underwood, G.R. No. 9010,28 March 1914.
460 1 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUAsI-DELICTs
scene of the accident, the street-car which he was

following took the switch-that is, went off the main
line to the left upon the switch lying alongside of the
main track. Thereupon, Underwood no longer
followed that street-car nor went to the left, but either
kept straight ahead on the main street-car track or a
bit to the right. The car which Chapman intended to
board was on the main line and bound in an opposite
direction to that in which Underwood was going.
When the front of the "San Marcelino" car was almost
in front of Underwood's automobile, Underwood's
driver suddenly went to the right, then struck and ran
over Chapman.
The Court ruled that Underwood's chauffeur was

guilty of negligence. But it ruled that Underwood was
not responsible for the negligence of his driver under
the facts and circumstances of this case. Citing the
case of Johnson vs. David,15 it ruled that the driver did
not fall within the list of persons in Article 1903 of the
Civil Code for whose acts Underwood would be res-
ponsible.
It added:
Although in the David case the owner of the vehicle was
not present at the time the alleged negligent acts were
committed by the driver, the same rule applies where the
owner is present, unless the negligence acts of the
driver are continued for such a length of time as to give
the owner a reasonable opportunity to observe them
and to direct his driver to desist therefrom. An owner
who sits in his automobile, or other vehicle, and
I5Johnson vs. David cited in the case as "5 Phil. Rep., 663."
PERSONS SPECICAuL LIABLE 1461
permits his driver to continue in a violation of the law

by the performance of negligent acts, after he has had
reasonable opportunity to observe them and to direct
that the driver cease therefrom, becomes himself
responsible for such acts. The owner of an automobile
who permits his chauffeur to drive up the Escolta, for
example, at a speed of 60 miles an hour, without any
effort to stop him, although he has had a reasonable
opportunity to do so, becomes himself responsible, both
criminally and civilly, for the results produced by the
acts of his chauffeur. On the other hand, if the driver, by
a sudden act of negligence, and without the owner
having a reasonable opportunity to prevent the act or
its continuance, injures a person or violates the crimi-
nal law, the owner of the automobile, although present
therein at the time the act was committed, is not
responsible, either civilly or criminally, therefor. The
act complained of must be continued in the presence of
the owner for such a length of time that the owner, by his
acquiescence, makes his driver's act his own. (emphasis
supplied)
The Court found that it did not appear from the

record that from the time the automobile took the
wrong side of the road to the commission of the
injury, sufficient time intervened to give Underwood
an opportunity to correct the act of his driver. It found
that the interval between the turning out to meet and
pass the street-car and the happening of the accident
was so small as not to be sufficient to charge
Underwood with the negligence of the driver.
In Caedo v. Yu Khw Thai,16 Marcial Caedo was driving

his Mercury car on his way to the airport with his son
Ephraim, Mrs. Caedo and three daughters. Coming
1
6 Caedov. Yu Khe Thai, G.R. No. L-20392,18 December 1968.
462 I ANALYSIS OF PHILIPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASi-DELiUCTS
from the opposite direction was the Cadillac of Yu

Khe Thai, driven by Rafael Bernardo. Ahead of the
Cadillac, going in the same direction, was a carretela
towing another horse. Bernardo testified that he was
almost upon the rig when he saw it in front of him,
only eight meters away. This was the first clear indi-
cation of his negligence. In the meantime, the Mercury
was coming on its own lane from the opposite
direction. Bernardo, instead of slowing down or stop-
ping altogether behind the carretelauntil that lane was
clear, veered to the left in order to pass. As he did so,
the curved end of his car's right rear bumper caught
the forward rim of the rig's left wheel, wrenching it
off and carrying it along as the car skidded obliquely
to the other lane, where it collided with the oncoming
vehicle. The Caedos sued Yu Khe Thai and Bemardo.
The trial court ruled in favor of the Caedos.
The Court ruled that the collision was directly

traceable to Bernardo's negligence and that he must
be held liable for damages.
Regarding Yu Khe Thai's liability, the Court ruled

that the applicable law was Article 2184 of the Civil
Code. The Court said:
Under the foregoing provision, if the causative factor

was the driver's negligence, the owner of the vehicle
who was present is likewise held liable if he could have
prevented the mishap by the exercise of due diligence.
It added:
The basis of the master's liability in civil law is not

respondent superior but rather the relationship of pater
familias. The theory is that ultimately the negligence of

the servant, if known to the master and susceptible of
timely correction by him, reflects his own negligence if
he fails to correct it in order to prevent injury or damage.
Although evidence was presented to prove there was

no negligence in Yu Khe Thai's employment of
Bernardo, the Court ruled that:
Negligence on the part of [Yu Khe Thai], if any, must be

sought in the immediate setting and circumstances of
the accident, that is, in his failure to detain the driver
from pursuing a course which not only gave him clear
notice of the danger but also sufficient time to act upon
it. We do not see that such negligence may be imputed.
The car, as has been stated, was not running at an
unreasonable speed. The road was wide and open, and
devoid of traffic that early morning. There was no
reason for the car owner to be in any special state of
alert. He had reason to rely on the skill and experience
of his driver. He became aware of the presence of the
carretelawhen his car was only twelve meters behind it,
but then his failure to see it earlier did not constitute
negligence, for he was not himself at the wheel. And
even when he did see it at the distance, he could not
have anticipated his driver's sudden decision to pass the
carretelaon its left side in spite of the fact that another car
was approaching from the opposite direction. The time
element was such that there was no reasonable oppor-
tunity for Yu Khe Thai to assess the risks involved and
warn the driver accordingly. The thought that entered
his mind, he said, was that if he sounded a sudden
warning it might only make the other man nervous and
make the situation worse. It was a thought that, wise or
not, connotes no absence of that due diligence required
by law to prevent the misfortune. (emphasis supplied)
The Court's statements seem to imply that there may

be some instances when the owner needs to be in a
464 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DELIuCTS
special state of alertness. It just so happens that such

circumstances were not present in this case.
The Court added:

The test of imputed negligence under Article 2184 of the
Civil Code is, to a great degree, necessarily subjective.
Car owners are not held to a uniform and inflexible
standard of diligence as are professional drivers. In
many cases, they refrain from driving their own cars and
instead hire other persons to drive for them precisely
because they are not trained or endowed with sufficient
discernment to know the rules of traffic or to appreciate
the relative dangers posed by the different situations that
are continually encountered on the road. What would be
a negligent omission under aforesaid Article on the
part of a car owner who is in the prime of age and
knows how to handle a motor vehicle is not necessarily
so on the part, say, of an old and infirm person who is
not similarly equipped.
The law does not require that a person must possess a

certain measure of skill or proficiency either in the
mechanics of driving or in the observance of traffic rules
before he may own a motor vehicle. The test of his
negligence, within the meaning of Article 2184, is his
omission to do that which the evidence of his own
senses tells him he should do in order to avoid the
accident. And as far as perception is concerned, absent a
minimum level imposed by law, a maneuver that
appears to be fraught with danger to one passenger may
appear to be entirely safe and commonplace to another.
Were the law to require a uniform standard of percep-
tiveness, employment of professional drivers by car
owners who, by their very inadequacies, have real need
of drivers' services, would be effectively prescribed.
(emphasis supplied)
PERSONS SPECTICALLY LumLE I 465
These statements by the Court imply that car owners

are required to apply a certain degree of diligence in
supervising their drivers. It seems that car owners
cannot absolve themselves from liability by simply
saying that they were not paying attention to what
their drivers were doing. However, the Court also
said that the degree of diligence required of such car
owners would depend on their circumstances. If the
car owner has poor eyesight or does not himself know
how to drive, he will not be held to the same diligence
required of a healthy car owner who himself is a
capable driver.
The difficulty in applying Article 2184 is that the

claimant must prove that owner could have prevented
the accident by the exercise of due diligence. The only
person who could testify to this would be the owner
himself, the driver and passengers in the car. It is
unlikely that any of these individuals would testify
that the owner was not diligent or could have
prevented the accident.
C. PROVINCES, CITIES, AND MUNICIPALITIES
Article 2189 of the Civil Code provides that provinces,

cities and municipalities are liable for damages for the
death of, or injuries suffered by, any person by reason
of the defective condition of roads, streets, bridges,
public buildings, and other public works under their
control or supervision. 17 The defense of due diligence
17 ARTICLE 2189. Provinces, cities and municipalities shall be liable for

damages for the death of, or injuries suffered by, any person by rea-
son of the defective condition of roads, streets, bridges, public
or even force majeure is noticeably absent from this

provision. This implies that absence of fault on the
part of the local government unit concerned should
not be a valid defense. At the very least, the absence of
the requirement to prove negligence on the part of the
local government unit concerned implies that this
provision does not contemplate a quasi-delict but a
strict liability tort.
In Guilatco v. Dagupan,18 Florentina Guilatco acci-

dentally fell into a manhole at a sidewalk located at
Perez Boulevard, Dagupan City, fracturing her right
leg. Guilatco filed an action or recovery of damages.
The trial court ruled in favor of Guilatco and ordered
the City of Dagupan to pay damages. The appellate
court reversed the ruling on the ground that no
evidence was presented to prove that the City of
Dagupan had "control or supervision" over Perez
Boulevard.
After quoting Article 2189, the court ruled that:
It is not even necessary for the defective road or street to

belong to the province, city or municipality for liability
to attach. The article only requires that either control or
supervision is exercised over the defective road or street.
In this case, the Court found that this control or

supervision was provided for in the charter of
Dagupan and was exercised through the City
Engineer. It said that the charter also provided that
buildings, and other public works under their control or supervision.

(n)
18Guilatco v. Dagupan,G.R. No. 61516, 21 March 1989.
the laying out, construction and improvement of

streets, avenues and alleys and sidewalks, and
regulation of the use thereof may be legislated by the
Municipal Board. Thus, it ruled that the charter
clearly indicated that the city had supervision and
control over the sidewalk where the open drainage
hole was located.
There was, however, an express provision in the

charter holding the city not liable for damages or
injuries sustained by persons or property due to the
failure of any city officer to enforce the provisions of
the charter. But the Court ruled that this provision
cannot be used to exempt the city. It explained:
The charter only lays down general rules regulating the

liability of the city. On the other hand, Article 2189 ap-
plies in particular to the liability arising from "defective
streets, public buildings and other public works.
Based on this case, the basis of the liability of the local

government unit is the fact that it has control and
supervision over the defective public works. If that is
case, then whether or not the local government unit
was negligent is irrelevant.
However, in Quezon City v. Dacara,19 the Court seems

to have found the negligence of the local government
unit relevant. In this case, Fulgencio Dacara, Jr., son of
Fulgencio P. Dacara, Sr. and owner of '87 Toyota
Corolla 4-door Sedan, drove the vehicle into a pile of
street diggings found at Matahimik St., Quezon City,
19 Quezon City v. Dacara,G.R. No. 150304,15 June 2005.

which was then being repaired by the Quezon City

government. As a result, Dacara, Jr. allegedly sus-
tained bodily injuries and the vehicle suffered
extensive damage for it turned turtle when it hit the
pile of earth. Indemnification was sought from the city
government, which, however, yielded negative re-
sults. Consequently, Dacara, Sr., for and in behalf of
his minor son, Jr., filed a complaint for damages
against Quezon City and Engr. Ramir Tiamzon, as
defendants. The defendants claimed that they exer-
cised due care by providing the area of the diggings
all the necessary measures to avoid accident. The
lower courts ruled in favor of Dacara.
The Court affirmed the ruling that it was the

negligence of the Quezon City government which was
the proximate cause of the injury. In affirming the
finding of negligence on the part of the Quezon City
government, the Court implied that a finding of
negligence is required for an action based on Article
2189. In addition, ruling on the liability of the Quezon
City government based on a finding of proximate
cause implied that Article 2189 is a quasi-delict. This
interpretation is further buttressed by the fact that in
determining whether moral and exemplary damages
are proper, it applied the rules applicable for quasi-
delicts.
D. PROPRIETORS OF BUILDINGS
Article 2190 provides that the proprietor of a building

or structure is responsible for the injury resulting
PERSONS SPECALLY LABLE 1 469
from its total or partial collapse, if it should be due to

the lack of necessary repairs.
The plaintiff in a case based on Article 2190 is re-

quired to prove:
" total or partial collapse of a building or struc-

ture;
" the defendant is the proprietor;
* collapse was due to lack of necessary repairs.
Noticeably absent is the explicit requirement to prove

negligence. While the lack of necessary repairs may be
caused by negligence, it is not required that such
disrepair result from negligence. The lack of necessary
repair may be intentional, but it will still be covered
by the provision. In fact, even if the defendant proves
lack of fault on his part or that he exercised due
diligence, the fact that there was still lack of necessary
repairs would still make him liable as proprietor.
Thus, this provision is not a quasi-delict but a strict
liability provision.
Article 2191 provides that proprietors are also res-

ponsible for injury caused:
(1) By the explosion of machinery which has not

been taken care of with due diligence, and the
inflammation of explosive substances which
have not been kept in a safe and adequate
place;
(2) By excessive smoke, which may be harmful to
persons or property;
470 I ANALYSIS OF PHIIPPINE LAW AND JURISPRUDENCE ON TORTS AND QuASI-DaCrS
(3) By the falling of trees situated at or near high-
ways or lanes, if not caused by force majeure;
(4) By emanations from tubes, canals, sewers or
deposits of infectious matter, constructed with-
out precautions suitable to the place.
With the exception of item 1, negligence is also not an

issue under Article 2191. Items 2, 3, and 4 appear to
make the proprietor liable for injuries whether or not
he exercised due diligence. Thus, Article 2191, with
the exception of item 1, appears to contemplate a strict
liability tort. The rationale behind the liability covered
by Articles 2190 and 219120 is to hold liable those who
benefit from the building, structure or thing which
caused the injury.
Articles 2190 and 2191 were taken from Articles 1907

and 1908 of the old Civil Code. The difference is that
the old code made the owner responsible as opposed
to proprietor in the current code.
Article 2192 provides that if the injury referred to in

Articles 2190 and 2191 should be the result of any
defect in the construction mentioned in Article 1723,
the third person suffering injury may proceed only
against the engineer or architect or contractor in
accordance with said article, within the period therein
fixed.
Thus, in a situation where Article 1723 applies, the

proprietor is not the proper party to be sued.
20 Except Article 2191(1).

PERSONS SPECIFICALLY LIABLE 1 471
E. ENGINEER/ARcHnTcr OF COLLAPSED BUILDING
Article 1723 applies if a building collapses within 15

years from completion because of:
" a defect in those plans and specifications; or

" due to the defects in the ground.
In this situation, it is the engineer or architect who

drew up the plans and specifications for a building
who is liable for damages.
In contrast, the contractor is the one responsible for

the damages if the edifice falls, within the same
period, as a result of:
" defects in the construction; or

" the use of materials of inferior quality fur-
nished by the contractor; or
" due to any violation of the terms of the
contract.
But if the engineer or architect supervised the cons-
truction, he is solidarily liable with the contractor.
Article 1723 further provides that acceptance of the

building, after completion, does not imply waiver of
any of the causes of action by reason of any defect.
An action based on Article 1723 must be brought

within ten years following the collapse of the
building.
Article 1723 also appears to be a strict liability tort,

considering that negligence on the part of the
engineer, architect or contractor is not required to be
proven. Although defects in the plans or the
construction or the use of inferior materials may
imply negligence, the existence of such conditions
despite due diligence would still trigger the
application of the provision. So it does not matter if
negligence is the cause of the conditions required
under the article but only that such conditions exist.
F. HEAD OF FAMILY FOR THINGS THROWN OR FALLING
Article 2193 provides that the head of a family that

lives in a building or a part thereof is responsible for
injury caused by things thrown or falling from the
same.
Thus, if an object is thrown from the window of a

condominium unit and injures a person outside the
building, the head of the family living in that
condominium unit will be responsible. Such res-
ponsibility is presumably one for damages.
An interesting question is whether the rule can apply

if the object thrown or falling emanates from a hotel
room. The court would have to determine if a family
staying in a hotel room would constitute "living" in
that hotel room for the purpose of Article 2193.
Considering that the article penalizes the "head of a
family living in a building or part thereof" suggests
that the article covers places of residence of a long-
term nature. Thus, it may not cover situations where a
family rents or leases on a short-term basis.
PERSONS SPECFICALY LmE I 473
This rule was taken from Article 1910 of the old Civil
Code, which stated:
ARTICLE 1910. The head of a family dwelling in a
house, or in a part of the same, shall be liable for
any damages caused by the things which may be
thrown or which may fall therefrom.
The only substantial change is that of replacing

"house" with "building." The rule identifies who will
be responsible for the injury without requiring that
such person be actually negligent. Neither is due
diligence a defense. Thus, Article 2193 appears to be a
strict liability tort.
G. OWNERS OF ENTERPRISES/OTrHER EMPLOYERS
Article 1711 obligates owners of enterprises and other

employers to pay compensation in cases of death,
injury, illness or disease suffered by their employee.
The Court, however, has limited the application of

"other employers" in Article 1711 to persons who
belong to a class analogous to "owners of enterprises,"
such as those operating a business or engaged in a
particular industry or trade, requiring its managers to
contract the services of laborers, workers and/or
employees.
In Alarcon v. Alarcon,21 Juan Alarcon hired Urzino

Azafia and his brother to dig a well on his land. After
the day's work, the two had dug a hole about five
21 Alarcon v. Alarcon, G.R. No. L-15692, 31 May 191.

474 ANALYSIS
i OF PHIUPPINE LAw AND JURISPRUDENCE ON ToRs AND QUASI-DEicTS
feet 22 deep without striking water. The next day,

Urzino resumed his work with Generoso Zulueta
because Urzino's brother did not return to work.
Urzino and Generoso started their work early in the
morning. Urzino was lowered into the hole with a
rope but on reaching the bottom, he said that he was
not feeling well. Generoso told him to get ready to be
pulled up, but a moment later, Urzino fainted and
slumped helplessly into a sitting position. Generoso
quickly called for help. A policeman and other
persons immediately responded. Generoso lowered a
ladder and proceeded to descend into the hole. After
having gone down about two meters, he felt a current
of hot air with an obnoxious odor around him.
Realizing that he was not feeling well he stopped and
climbed up out of the hole. One of the men then
volunteered to go down in his place, but he too could
not reach the bottom for the same reason. Realizing
that it was not safe to go into the hole, Generoso and
others thought of another method to get Urzino out.
With a rope tied into a loop on one end, they caught
one of his legs and pulled up his body. They next put
him on bed while someone summoned a doctor. In
less than five minutes, the municipal health officer
arrived. He quickly attempted to revive Urzino, but
his efforts proved unavailing because he was already
dead. He certified that Urzino died of asphyxia.
Urzino's mother filed an action to recover compen-
sation for her son's death under the provisions of
Article 1711 of the Civil Code. The trial court
22
The text of the case says "five feet meters." Based on the facts of the
case it is most likely that it was five feet and not five meters.
PERSOSSPECFicALY L-LE 1 475
dismissed the complaint upon the ground that, "not

being owner of enterprises or employer of laborers in
industry or business," Alarcon was not liable under
Article 1711 of the Civil Code of the Philippines.
The Court found that Alarcon did not own any

enterprise but was merely a school teacher who
needed a well. The Court ruled that he did not fall
under the category of "other employers" mentioned in
said Article 1711. It explained:
Under the principle of ejusdem generis, said 'other em-

ployers" must be construed to refer to persons who be-
long to a class analogous to "owners of enterprises," such
as those operating a business or engaged in a particular
industry or trade, requiring its managers to contract the
services of laborers, workers and/or employees.
Indeed, said Article 1711 is part of Section 2, Chapter 3,

Title VIII of our Civil Code. Speaking about the purpose
of said Section 2, the Code Commission said:
The Republic of the Philippines, through the people's

constitutional mandate, is definitely committed to the
present-day principle of social justice. In keeping with
this fundamental policy, the Project of Civil Code,
while on the one hand guaranteeing property rights,
has on the other seen to it that the toiling masses are
assured of a fair and just treatment by capital or
management. (Report, p. 13.)
Referring particularly to Article 1707 of said Code, which

is part of the aforementioned Section 2, the Commission
expressed itself as follows:
By virtue of this new lien, the laborers who are not

paid by an unscrupulous and irresponsible indus-
trialist or manager may by legal means have the goods
manufactured through the sweat of their brow, sold
476 I ANALYSIS OF PHIUPPINE LAW AND JURJSPRUDENCE ON TORTS AND QUASi-DEUCTS
and out of the proceeds get their salary, returning the
excess, if any.... (Report, p. 14.)
As His Honor, the trial Judge had correctly observed, the

terms "capital", "management", "industrialist", "manager"
and "owners of enterprises", used to describe the
employers alluded to in said Section 2, indicate that they
contemplate those engaged more or less in business or
industry.
1. Situations Covered
a. Death or Injury
Liability of employers arises in case of death or

injuries to their laborers, workmen, mechanics or
other employees, if the death or personal injury arose
out of and in the course of the employment. The
injury referred to in the article contemplates physical
injury although a case could be made that it should
also cover psychological injury.
The employer is responsible even if the event, which

caused the death or injury, was purely accidental or
due to a fortuitous event.
Article 1712 further provides that if the death or

injury was due to the negligence of a fellow worker,
the latter and the employer shall be solidarily liable
for compensation. But if a fellow worker's intentional
or malicious act is the only cause of the death or
injury, the employer shall not be answerable, unless it
should be shown that the latter did not exercise due
diligence in the selection or supervision of the
plaintiff's fellow worker. When the employee's lack of
PERSONS SPECIFICALLY LIALE I 477
due care contributed to his death or injury, the

compensation shall be equitably reduced.
b. Illness or Disease
Liability of employers for illness or disease contracted

by their employees arises if such illness or disease was
caused by their employment or as the result of the
nature of the employment.
2. Defenses Available
a. When Death or Injury Not Caused by

a Fellow Worker
Article 1711 does not require that it be proven that the

employer was negligent. The article also does not
provide that due diligence on his part is a defense.
But if the mishap was due to the employee's own

notorious negligence, or voluntary act, or drunken-
ness, the employer shall not be liable for compen-
sation. Therefore, while the negligence of the em-
ployer is irrelevant, the employer can raise the
notorious negligence of the employee as a defense.
Also, when the employee's lack of due care

contributed to his death or injury, the compensation
shall be equitably reduced. It is not clear from the text
of Article 1711 whether the "notorious negligence,
voluntary act, or drunkenness" defense applies to the
case of illness or disease because the relevant sentence
refers to '"nishap." The term would ordinarily refer to
events which cause death or injury and not to illness

or disease.
b. When Death or Injury Caused by Fellow Worker
Article 1712 provides that if the death or injury was

due to the negligence of a fellow worker, the latter
and the employer shall be solidarily liable for
compensation. But if a fellow worker's intentional or
malicious act is the only cause of the death or injury,
the employer shall not be answerable, unless it should
be shown that the latter did not exercise due diligence
in the selection or supervision of the plaintiff's fellow
worker. When the employee's lack of due care
contributed to his death or injury, the compensation
shall be equitably reduced.
H. MANUFACTURERS/PRODUCERS OF PRODUCTS
Article 2187 provides that manufacturers and pro-

cessors of foodstuffs, drinks, toilet articles and similar
goods are liable for death or injuries caused by any
noxious or harmful substances used, although no
contractual relation exists between them and the
consumers.
The rule makes the manufacturer and processor liable

and not the vendor of the product. This also implies
that the types of products contemplated by the
provision are manufactured or processed.
In order to be liable under this provision, it is not

sufficient that the product causes death or injury. It is
required that such death or injury be caused by
PERSONS SPECRCALLY LABLE 1479
noxious or harmful substances used in the manu-

facture or processing of the product. But the provision
does not require that the manufacturer or processor
knowingly or intentionally use the noxious or harmful
substance.
The provision appears to be intended to provide a

remedy for the injured consumer regardless of how he
came to be in possession and use of the product. This
is because the absence of a contractual relation bet-
ween the consumer and the manufacturer or pro-
cessor is irrelevant. This also means that the rule is not
a form of culpa contractual.
I. PERSONS WHO INTERFERE WITH

CoNTRAcruAL RELATIONS
Article 1314 provides that any person who induces

another to violate his contract with another person
shall be liable for damages to the other contracting
party. The Court often cites common law authorities
applying this article. Therefore, before proceeding to
discuss Philippine cases, it may be proper to under-
stand the common law doctrine.
1. The Common Law Doctrine
Under common law, it is said "that tort liability may

be imposed upon a defendant who intentionally and
improperly interferes with the plaintiff's rights under
a contract with another person if the interference
causes the plaintiff to lose a right under the contract
or makes the contract rights more costly or less
480 1 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DEUcTs
valuable." 23 This law of interference of contract is part

of a larger body of tort law aimed at protection of
relationships. 24
Liability will only attach if the defendant intended to

interfere with the plaintiff's contractual relations in
the sense that:25
* he acts with knowledge that interference will

result; and
" he acts with an improper purpose.
a. Intent
Under common law, "the basis of liability for inter-

ference with contract is intent.126 Therefore, "negligent
interference is not actionable." 27
According to Prosserand Keeton:

Intentional interference of course presupposes know-
ledge of the plaintiff's contract or interest, or at least
facts which would lead a reasonable person to believe
that that such interest exists. Without suck knowledge
there can be no intent and no liability.2S
2 PROssER AND KEETON ON TomTS (FInrH ED.) 978 (1994).

24Id.
25 Id. at 982.
2 Id.
2 Id.
8 Id.
PRSONS SPEaICAUY LLE 1481
b. Improper Purpose
Under common law, "a defendant may intentionally

interfere with the plaintiff's interest without liability if
there were good grounds for the interference or ...
that some kind of unacceptable purpose was required
in addition to the intent."29 Prosserand Keeton adds:
Different formulas to express this idea have been in use
at different stages in the development of the tort, the first
of which was to say that there was liability for
intentional interference that was "malicious." It has long
been clear, however, that "Malice" in the sense of ill-will
30
or spite is not required for liability.
In other words:
Although this "improper" interference was once des-
cribed as "malicious" it is now clear that no actual spite
is required at all, and the term has gradually dropped
from the cases, leaving a rather broad and undefined tort
in which no specific conduct is proscribed and in which
liability turns on the purpose for which the defendant
acts, with the indistinct notion that the purposes must be
considered improper in some undefined way. 31
(emphasis supplied)
However, the defendant may not be liable if he had

"an impersonal or disinterested motive of a laudable
character. 3 2 An example would be a case where the
defendant is trying to protect a person he is
responsible for, "provided the steps taken are not
29Id. at 983.
30Id.
31 Id. at 979.
32 Id. at 985.
482 I ANALYSIS OF PHIUPPINE LAw AND JURISPRUDENCE ON TORTS AND QUAS-DEUCTS
unreasonable in view of the harm threatened."

Another example may be acts "to protect the public
interest.'"34
As to the manner by which the defendant interferes, it

has been said that:
the mere statement of existing facts, or assembling

information in such a way that the party persuaded
recognizes it as a reason for breaking the contract is not
enough, so long as the defendant creates no added
reason and exerts no other influence or pressure by his
conduct.35
2. Under Philippine Jurisprudence
The case of Gilchristv. Cuddy36 has been cited as basis

for decisions ruling on suits seeking damages for an
alleged inducement of a contractual breach by a third
party. However, a closer scrutiny of this case would
reveal that reliance on this case for such a purpose
may be improper.
In Gilchrist v. Cuddy,37 E.A. Cuddy was the owner of

the film Zigomar. On April 24, he rented it to C.S.
Gilchrist for a week for P125, and it was to be
delivered on May 26, the week beginning that day. A
few days prior to this, Cuddy sent the money back to
Gilchrist, which he had forwarded to him in Manila,
saying that he had made other arrangements with his
3Id.
3 Id..
35 Id. at 990.
36 Gilchristv. Cuddy, G.R. No. 9356,18 February 1915.
37Id.
PERSONS SPECIFICALLY LIALE 1483
film. By "other arrangements," he was referring to the

rental to Jose Fernandez Espejo and Mariano
Zaldarriaga for P350 for the week. Gilchrist filed an
action for injunction against these parties from show-
ing it. An ex parte mandatory injunction was issued,
directing Cuddy to send to Gilchrist the film
"Zigomar" and an ex parte preliminary injunction was
issued, restraining Espejo and Zaldarriaga from re-
ceiving and exhibiting the film in their theater until
further orders of the court. Espejo and Zaldarriaga
appeared and moved to dissolve the preliminary
injunction. This motion was denied. Espejo and
Zaldarriaga filed their answer, wherein they denied
all of the allegations in the complaint and by way of a
cross-complaint, asked for damages for the wrongful
issuance of the preliminary injunction. Gilchrist
moved for the dismissal of the complaint for the
reason that there was no further necessity for the
maintenance of the injunction. The motion was grant-
ed without objection as to Cuddy and denied as to
Espejo and Zaldarriaga in order to give them an
opportunity to prove that the injunctions were wrong-
fully issued and the amount of damages suffered by
reason thereof. The trial court dismissed their cross-
complaint for damages for the alleged wrongful
issuance of a mandatory and a preliminary injunction.
Espejo and Zaldarriaga appealed from this judgment.
The Court found that Cuddy willfully violated his

contract in order that he might accept the appellants'
offer of P350 for the film for the same period.
484 I ANALYSIS OF PHIUPPINE LAw AND JURISPRUDENCE ON TORTS AND QUASI-DEUCTS
As to the question of whether the appellants knew

they were inducing Cuddy to violate his contract with
a third party, the Court found that Espejo received a
letter from his agents in Manila dated April 26,
assuring him that he could not get the film for about
six weeks. The arrangements between Cuddy and the
appellants for the exhibition of the film by the latter
on the 26th of May were perfected after April 26, such
that that the six weeks would include and extend
beyond May 26. Thus, appellants must necessarily
have known at the time they made their offer to
Cuddy that the latter had booked or contracted the
film for six weeks from April 26. Therefore, the Court
concluded that the appellants knowingly induced
Cuddy to violate his contract with another person.
But because there was no specific finding that the

appellants knew the identity of the other party, the
Court assumed that they did not know that Gilchrist
was the person who had contracted for the film.
The appellants argued that if the preliminary in-

junction had not been issued against them, they could
have exhibited the film in their theater for a number
of days beginning May 26, and could have also
subleased it to other theater owners in the nearby
towns and, by so doing, could have cleared, during
the life of their contract with Cuddy, the amount
claimed as damages.
The Court held that Cuddy was liable to Gilchrist in

an action for damages for the breach of that contract.
But the question was whether the appellants were
PERSONS SPEFICALLY LABLE 1485
likewise liable for interfering with the contract

between Gilchrist and Cuddy, not knowing at the
time the identity of one of the contracting parties.
The appellants claimed that they had a right to

compete with Gilchrist for the lease of the film.
If there had been no contract between Cuddy and

Gilchrist this defense would be tenable, but the mere
right to compete could not justify the appellants in
intentionally inducing Cuddy to take away the
appellee's contractual rights. (emphasis supplied)
Thus, the Court ruled that the mere right to compete

does not justify interference with an existing contract.
The Court quoted Chief Justice Wells in Walker vs.

Cronin,38 where he said:
Everyone has a right to enjoy the fruits and advantages

of his own enterprise, industry, skill and credit, He has
no right to be protected against competition; but he has
a right to be free from malicious and wanton
interference, disturbance or annoyance. If disturbance
or loss come as a result of competition, or the exercise of
like rights by others, it is damum absque injuria, unless
some superior right by contract or otherwise is
interfered with.39 (emphasis supplied)
Thus, the Court ruled that competition is not inter-

ference, provided that no superior right by contract or
otherwise is interfered with.
38
Walker vs. Cronin cited in the case as 107 Mass., 555.
39 Id.
486 i ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DELICTS
The Court also cited Justice Darling in Read vs.
40
FriendlySociety of Operative Stonemasons:
I think the plaintiff has a cause of action against the
defendants, unless the court is satisfied that, when they
interfered with the contractual rights of plaintiff, the
defendants had a sufficient justification for their
interference; ... for it is not a justification that 'they acted
bona fide in the best interests of the society of masons,'
i.e., in their own interests. Nor is it enough that 'they
were not actuated by improper motives. I think their
sufficient justification for interference with plaintiff's
right must be an equal or superior right in themselves,
and that no one can legally excuse himself to a man, of
whose contract he has procured the breach, on the
ground that he acted on a wrong understanding of his
own rights, or without malice, or bona fide, or in the
best interests of himself, or even that he acted as an
altruist, seeking only the good of another and careless of
his own advantage. 41 (emphasis supplied)
The Court here says that there is a valid form of

interference but this requires "sufficient justification"
which cannot simply be the fact that the interferer did
not have "improper motives." In other words, the
absence of malice does not justify interference with a
contract of another. Sufficient justification requires an
actual superior or equal right, and a misunder-
standing of one's rights or lack of malice is not an
excuse.
40
Read vs. Friendly Society of Operative Stonemasons, cited in the case as
(1902) 2 K.B., 88.
41 Id.
PERSONS SPECIFICAUY LjE 1 487
The Court noted that:
It is said that the ground on which the liability of a third

party for interfering with a contract between others rests,
is that the interference was malicious. The contrary view,
however, is taken by the Supreme Court of the United
States in the case of Angle vs. Railway Co. The only
motive for interference by the third party in that case
was the desire to make a profit to the injury of one of
the parties of the contract. There was no malice in the
case beyond the desire to make an unlawful gain to the
detriment of one of the contracting parties. (citation
Therefore, what the Court here is saying that while "it

is said" that interference must be malicious to create
liability, the contrary view has been taken by the U.S.
Supreme Court. In the said case, the interference was
motivated by "the desire to make a profit." Thus, in no
way does the Court in the above-quoted paragraph
say that interference must be malicious or that a profit
motive is a valid basis for interference. In the first
place, this would contradict the first three authorities
it cited earlier.
In this case, the Court found that the only motive for
interference with the Gilchrist-Cuddy contract on the
part of the appellants was a desire to make a profit by
exhibiting the film in their theater. The Court added:
There was no malice beyond this desire; but this fact
does not relieve them of the legal liability for
interfering with that contract and causing its breach. It is,
therefore, clear, under the above authorities, that they
were liable to Gilchrist for the damages caused by their
acts, unless they are relieved from such liability by
reason of the fact that they did not know at the time the
identity of the original lessee (Gilchrist) of the film.

(emphasis supplied)
Thus, the Court clearly ruled that the absence of

malice in the interference did not absolve the
interferers from liability for damages.
The Court explained the legal basis of the appellants'

liability to Gilchrist:
The liability of the appellants arises from unlawful acts

and not from contractual obligations, as they were under
no such obligations to induce Cuddy to violate his
contract with Gilchrist. So that if the action of Gilchrist
had been one for damages, it would be governed by
Chapter 2, Title 16, Book 4 of the Civil Code. Article
1902 of that code provides that a person who, by act or
omission, causes damage to another when there is fault
or negligence, shall be obliged to repair the damage so
done. There is nothing in this article which requires as
a condition precedent to the liability of a tort feasor
that he must know the identity of a person to whom he
causes damage. In fact, the chapter wherein this article is
found clearly shows that no such knowledge is required
in order that the injured party may recover for the
damage suffered. (emphasis supplied)
Thus, if Gilchrist's action was for damages, the

Court's view was that it would have been based on
culpa aquiliana. Hence, it would not matter if the
appellants did not know who Gilchrist was.
But the Court pointed out that the fact that the
appellants' interference with the Gilchrist contract
was actionable did not of itself entitle Gilchrist to sue
out an injunction against them. It said that the
allowance of this remedy must be justified under the
PERSONS SPECIFICcAY LALE 1489
pertinent section of the Code of Civil Procedure at

that time, which specified the circumstances under
which an injunction may issue.
It quoted from Devesa v. Arbes:42
An injunction is a 'special remedy' adopted in that code

(Act No. 190) from American practice, and originally
borrowed from English legal procedure, which was there
issued by the authority and under the seal of a court of
equity, and limited, as in other cases where equitable
relief is sought, to cases where there is no 'plain,
adequate, and complete remedy at law,' which 'will not
be granted while the rights between the parties are
undetermined, except in extraordinary cases where
material and irreparable injury will be done,' which
cannot be compensated in damages, and where there
will be no adequate remedy, and which will not, as a
rule, be granted, to take property out of the possession of
one party and put it into that of another whose title has
not been established by law.43 (emphasis supplied)
The Court then examined the issue of whether the fact

that the appellants did not know at the time the
identity of the original lessee of the film militated
against Gilchrist's right to a preliminary injunction,
although they incurred civil liability for damages for
such interference. It said:
In the examination of the adjudicated cases, where in

injunctions have been issued to restrain wrongful inter-
ference with contracts by strangers to such contracts, we
have been unable to find any case where this precise
question was involved, as in all of those cases which we
have examined, the identity of both of the contracting
42
Devesa v. Arbes cited in the case as "13 Phil. Rep., 273."
43Id.
490 1 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QuAsi-DEicTs
parties was known to the tortfeasors. We might say,

however, that this fact does not seem to have been a
controlling feature in those cases. There is nothing in
Section 164 of the Code of Civil Procedure which
indicates, even remotely, that before an injunction may
issue restraining the wrongful interference with con-
tracts by strangers, the strangers must know the identity
of both parties. It would seem that this is not essential, as
injunctions frequently issue against municipal corpo-
rations, public service corporations, public officers, and
others to restrain the commission of acts which would
tend to injuriously affect the rights of persons whose
identity the respondents could not possibly have known
beforehand. This court has held that in a proper case
injunction will issue at the instance of a private citizen to
restrain ultra vires acts of public officials. (citation
omitted)
Thus, whether or not the interferor knew the identity

of the person whose contract he interfered with is
irrelevant as far as the issuance of the injunction was
concerned.
The Court then proceeded to explain whether or not

the preliminary injunction ought to have been issued
in this case. It said:
As a rule, injunctions are denied to those who have an

adequate remedy at law. Where the choice is between
the ordinary and the extraordinary processes of law, and
the former are sufficient, the rule will not permit the use
of the latter. If the injury is irreparable, the ordinary
process is inadequate. In Wahle vs. Reinbach, the supreme
court of Illinois approved a definition of the term
"irreparable injury" in the following language: "By 'irre-
parable injury' is not meant such injury as is beyond the
possibility of repair, or beyond possible compensation in
damages, nor necessarily great injury or great damage,
but that species of injury, whether great or small, that

ought not to be submitted to on the one hand or inflicted
on the other; and, because it is so large on the one hand,
or so small on the other, is of such constant and
frequent recurrence that no fair or reasonable redress
can be had therefor in a court of law. (citations omitted,
emphasis supplied)
The Court said that the case was somewhat novel, as

the only contract which was broken was that between
Cuddy and Gilchrist, and the profits of Gilchrist
depended upon the patronage of the public, for which
it was conceded that Espejo and Zaldarriaga were at
liberty to complete by all fair and legitimate means.
The Court took judicial notice of the general character
of a cinematograph or motion-picture theater. It said:
It is a quite modern form of the play house, wherein, by
means of an apparatus known as a cinematograph or
cinematograph, a series of views representing closely
successive phases of a moving object, are exhibited in
rapid sequence, giving a picture which, owing to the
persistence of vision, appears to the observer to be in
continuous motion. The subjects which have lent
themselves to the art of the photographer in this manner
have increased enormously in recent years, as well as
have the places where such exhibitions are given. The
attendance, and, consequently, the receipts, at one of
these cinematograph or motion-picture theaters depends
in no small degree upon the excellence of the photo-
graphs, and it is quite common for the proprietor of the
theater to secure an especially attractive exhibit as his
"feature film" and advertise it as such in order to attract
the Public. This feature film is depended upon to secure
a larger attendance than if its place on the program were
filled by other films of mediocre quality. It is evident that
the failure to exhibit the feature film will reduce the
receipts of the theater. (citation omitted)
Thus, the Court held that Gilchrist faced the imme-

diate prospect of diminished profits by reason of the
fact that the appellants had induced Cuddy to rent to
them the film Gilchrist had counted upon as his
feature film. It added:
It is quite apparent that to estimate with any degree of
accuracy the damages which Gilchrist would likely
suffer from such an event would be quite difficult if not
impossible. If he allowed the appellants to exhibit the
film in Iloilo, it would be useless for him to exhibit it
again, as the desire of the public to witness the pro-
duction would have been already satisfied. In this
extremity, the appellee applied for and was granted, as
we have indicated, a mandatory injunction against
Cuddy requiring him to deliver the Zigomar to Gilchrist,
and a preliminary injunction against the appellants
restraining them from exhibiting that film in their theater
during the week he (Gilchrist) had a right to exhibit it.
These injunctions saved the plaintiff harmless from
damages due to the unwarranted interference of the
defendants, as well as the difficult task which would
have been set for the court of estimating them in case the
appellants had been allowed to carry out their illegal
plans. As to whether or not the mandatory injunction
should have been issued, we are not, as we have said,
called upon to determine. So far as the preliminary
injunction issued against the appellants is concerned,
which prohibited them from exhibiting the Zigomar
during the week which Gilchrist desired to exhibit it, we
are of the opinion that the circumstances justified the
issuance of that injunction in the discretion of the court.
The Court concluded that the trial court was justified

in issuing the preliminary injunction against the
appellants.
PERSONS SPECIFICALLY UABLE I 493
As to the question of whether injunction will issue to

restrain wrongful interference with contracts by
strangers to such contracts:
it may be said that courts in the United States have
usually granted such relief where the profits of the
injured person are derived from his contractual relations
with a large and indefinite number of individuals, thus
reducing him to the necessity of proving in an action
against the tort-feasor that the latter was responsible in
each case for the broken contract, or else obliging him to
institute individual suits against each contracting party
and so exposing him to a multiplicity of suits.
The Court cited Nashville R. R. Co. vs. McConnell"

One who wrongfully interferes in a contract between
others, and, for the purpose of gain to himself induces
one of the parties to break it, is liable to the party injured
thereby; and his continued interference may be ground
for an injunction where the injuries resulting will be
irreparable. 45
The Court also cited Section 2511 of 3 Elliott on

Contracts:
Injunction is the proper remedy to prevent a wrongful
interference with contracts by strangers to such contracts
where the legal remedy is insufficient and the resulting
injury is irreparable. And where there is a malicious
interference with lawful and valid contracts a perma-
nent injunction will ordinarily issue without proof of
express malice. So, an injunction may be issued where
the complainant and the defendant were business rivals
and the defendant had induced the customers of the
44 Nashville R. R. Co. vs. McConnell cited in the case as "82 Fed,, 65."
45 Id.
complainant to break their contracts with him by agree-

ing to indemnify them against liability for damages. So,
an employee who breaks his contract of employment
may be enjoined from inducing other employees to break
their contracts and enter into new contracts with a new
employer of the servant who first broke his contract. But
the remedy by injunction cannot be used to restrain a
legitimate competition, though such competition
would involve the violation of a contract. Nor will
equity ordinarily enjoin employees who have quit the
service of their employer from attempting by proper
argument to persuade others from taking their places so
long as they do not resort to force or intimidation or
obstruct the public thoroughfares. (emphasis supplied)
Thus, Gilchristv. Cuddy did not involve an action for

damages filed against a person who induced another
to break his contract. In fact, it was the alleged
interferors who were seeking damages against the
victim of the interference. Nevertheless, the Court in
succeeding cases has used this case as basis for the
rules on actions referred to as "tort interference."
In So Ping Bun v. CA, 46 Tek Hua Trading Co., through

its managing partner, So Pek Giok, entered into lease
agreements with lessor Dee C. Chuan & Sons Inc.
("DCCSI"). Tek Hua Trading used the areas to store
its textiles. The contracts each had a one-year term
and provided that should the lessee continue to
occupy the premises after the term, the lease shall be
on a month-to-month basis. When the contracts
expired, the parties did not renew the contracts, but
Tek Hua Trading continued to occupy the premises.
In 1976, Tek Hua Trading Co. was dissolved. Later,
46 So Ping Bun v. CA, G.R. No. 120554,21 September 1999.

PERSONS SPEAFICALY LIABLE 495
the original members of Tek Hua Trading Co.,

including Manuel Tiong, formed Tek Hua Enter-
prising Corp. So Pek Giok, managing partner of Tek
Hua Trading, died in 1986. So Pek Giok's grandson,
So Ping Bun, occupied the warehouse for his own
textile business, Trendsetter Marketing. On August 1,
1989, lessor DCCSI sent letters addressed to Tek Hua
Enterprises, informing the latter of the 25% increase in
rent effective September 1, 1989. The rent increase was
later on reduced to 20% effective January 1, 1990,
upon other lessees' demand. Again on December 1,
1990, the lessor implemented a 30% rent increase.
Enclosed in these letters were new lease contracts for
signing. DCCSI warned that failure of the lessee to
accomplish the contracts shall be deemed as lack of
interest on the lessee's part, and agreement to the
termination of the lease. Tek Hua Enterprises and
Tiong did not answer any of these letters. Still, the
lease contracts were not rescinded. On March 1, 1991,
Tiong sent a letter to So Ping Bun, asking him to
vacate the leased premises but So Ping Bun refused to
vacate. Instead, So Ping Bun requested formal
contracts of lease with DCCSI in favor Trendsetter
Marketing. So Ping Bun claimed that after the death of
his grandfather, So Pek Giok, he had been occupying
the premises for his textile business and religiously
paid rent. DCCSI acceded to So Ping Bun's request
and the lease contracts in favor of Trendsetter were
executed. In the suit for injunction, Tek Hua
Enterprising and Tiong pressed for the nullification of
the lease contracts between DCCSI and So Ping Bun.
They also claimed damages. After trial, the trial court
ruled in favor of Tek Hua and was affirmed by the

appellate court.
In this case, the Court said that:

The elements of tort interference are: (1) existence of a
valid contract; (2) knowledge on the part of the third
person of the existence of contract; and (3) interference of
47
the third person is without legal justification or excuse.
The Court added:

A duty which the law of torts is concerned with is
respect for the property of others, and a cause of action
ex delicto may be predicated upon an unlawful inter-
ference by one person of the enjoyment by the other of
his private property. This may pertain to a situation
where a third person induces a party to renege on or
violate his undertaking under a contract. (citation
omitted)
The Court found that Trendsetter Marketing asked

DCCSI to execute lease contracts in its favor, and as a
result, So Ping Bun deprived Tek Hua of the latter's
property right. It ruled that the three elements of tort
interference above-mentioned were present in the
instant case.
The Court noted that there is a debate on whether

interference may be justified where the defendant acts
for the sole purpose of furthering his own financial or
economic interest. It explained:
47 The Court cited as authority 30 Am Jur., Section 19, pp. 71-72;

Sampaguita Pictures Inc. vs. Vasquez, et al. (Court of Appeals, 68 O.G.
7666).
PERSONS SPECIFICALLY LALE I 497
One view is that, as a general rule, justification for

interfering with the business relations of another exists
where the actor's motive is to benefit himself. Such
justification does not exist where his sole motive is to
cause harm to the other. Added to this, some authorities
believe that it is not necessary that the interferer's
interest outweigh that of the party whose rights are
invaded, and that an individual acts under an economic
interest that is substantial, not merely de minimis, such
that wrongful and malicious motives are negatived, for
he acts in self-protection. Moreover, justification for
protecting one's financial position should not be made to
depend on a comparison of his economic interest in the
subject matter with that of others. It is sufficient if the
impetus of his conduct lies in a proper business interest
rather than in wrongful motives. (citations omitted)
The Court interpreted the ruling in Gilchrist v. Cuddy

as holding that-
where there was no malice in the interference of a

contract, and the impulse behind one's conduct lies in a
proper business interest rather than in wrongful motives,
a party cannot be a malicious interferer.
As discussed previously, the Court in Gilchrist ruled

that malice is not required in order to be liable for
interference with contracts. Thus, this statement in So
Ping Bun is an inaccurate representation of the ruling
in Gilchrist.
Citing Kurtz vs. Oremland48 and the Second Restatement

on Torts,49 the Court said:
48 Kurtz vs. Oremland cited in the case as "33 N. J. Super. 443, 111 A.2d
100."
49 Cited in the case as "Restatement of the Law, Torts, 2d, Sec. 769."
498 1 ANALYSIS OF PHIUPPINE LAW AND JURJSPRUDENCE ON TORTS AND QUASI-DELICTS
Where the alleged interferer is financially interested, and

such interest motivates his conduct, it cannot be said that
he is an officious or malicious intermeddler. 5"
In this case, the Court found that So Ping Bun

prevailed upon DCCSI to lease the warehouse to his
enterprise at the expense of Tek Hua. Though So Ping
Bun took interest in the property of Tek Hua and
benefited from it, nothing on record imputes deli-
berate wrongful motives or malice on him.
The Court, however, rejected So Ping Bun's argument

that the lower court's ruling that Tek Hua was not
entitled to actual, moral or exemplary damages,
meant that he ought to be absolved of any liability,
including attorney's fees. It explained:
It is true that the lower courts did not award damages,
but this was only because the extent of damages was not
quantifiable. We had a similar situation in Gilchrist,
where it was difficult or impossible to determine the
extent of damage and there was nothing on record to
serve as basis thereof. In that case, we refrained from
awarding damages. We believe the same conclusion
applies in this case.
This is again inaccurate interpretation of Gilchrist. In

that case, damages was not awarded not because it
was difficult or impossible to determine 51 but because
the claimants were not entitled. In that case, it was the
0Id.
51Even if it were the case, it cannot be used as an excuse in this case. The
difficulty of determining the pecuniary value of loss is not an excuse
for not awarding damages because the Civil Code allows for the
award of Temperate, Nominal and Moral damages which are not
based on actual loss.
PERSONS SPECIFICA.LY UABLE 1499
contract interferers who were seeking damages for the

alleged invalid injunction. The Court ruled that the
injunction was valid so no damages should be
awarded.
The Court further stated that:
While we do not encourage tort interferers seeking their

economic interest to intrude into existing contracts at the
expense of others, however, we find that the conduct
herein complained of did not transcend the limits
forbidding an obligatory award for damages in the
absence of any malice. The business desire is there to
make some gain to the detriment of the contracting
parties. Lack of malice, however, precludes damages.
But it does not relieve petitioner of the legal liability
for entering into contracts and causing breach of
existing ones. The respondent appellate court correctly
confirmed the permanent injunction and nullification of
the lease contracts between DCCSI and Trendsetter
Marketing, without awarding damages. The injunction
saved the respondents from further damage or injury
caused by petitioner's interference. (emphasis supplied)
The Court here seems to be saying that a person

injured by a contract interferer is not entitled to
damages if the latter had no malice. But the non-
malicious contract interferer nevertheless has "legal
liability." In this case, the legal liability consists of an
injunction.
In Lagon v. CA, 52 Jose Lagon purchased two parcels of

land from the estate of Bai Tonina Sepi. A few months
after the sale, Menandro Lapuz filed a complaint for
52
Lagon v. CA, G.R. No. 119107,18 March 2005.
"torts and damages" against Lagon, claiming that he

entered into a contract of lease with the late Bai
Tonina Sepi over three parcels of land ("Property")
beginning 1964. One of the provisions agreed upon
was for Lapuz to put up commercial buildings which
would, in turn, be leased to new tenants. The rentals
to be paid by those tenants would answer for the rent
Lapuz was obligated to pay Bai Tonina Sepi for the
lease of the land. In 1974, the lease contract ended but
because the construction of the commercial buildings
had yet to be completed, the lease contract was
allegedly renewed. When Bai Tonina Sepi died, Lapuz
started remitting his rent to the court-appointed
administrator of her estate. But when the adminis-
trator advised him to stop collecting rentals from the
tenants of the buildings he constructed, he discovered
that Lagon, representing himself as the new owner of
the property, had been collecting rentals from the
tenants. He thus filed a complaint against the latter,
accusing Lagon of inducing the heirs of Bai Tonina
Sepi to sell the property to him, thereby violating his
leasehold rights over it. Lagon denied that he induced
the heirs of Bai Tonina to sell the property to him,
contending that the heirs were in dire need of money
to pay off the obligations of the deceased. He also
denied interfering with Lapuz' leasehold rights as
there was no lease contract covering the property
when he purchased it because his personal investi-
gation and inquiry revealed no claims or encum-
brances on the subject lots. Lagon claimed that before
he bought the property, he went to Atty. Benjamin
Fajardo, the lawyer who allegedly notarized the lease
contract between Lapuz and Bai Tonina Sepi, to verify
PERSONS SPECIFICAu.yLY.LE I 501
if the parties indeed renewed the lease contract after it

expired in 1974. Lagon averred that Atty. Fajardo
showed him four copies of the lease renewal, but
these were all unsigned. To refute the existence of a
lease contract, Lagon presented in court a certification
from the Office of the Clerk of Court, confirming that
no record of any lease contract notarized by Atty.
Fajardo had been entered into their files. Lagon added
that he only learned of the alleged lease contract when
he was informed that Lapuz was collecting rent from
the tenants of the building. The trial court ruled in
favor of Lapuz and ordered Lagon to pay to Lapuz
the rentals of the commercial buildings, moral, actual,
temperate, and nominal damages, as well as attor-
ney's fees, expenses of litigation and interest. The
appellate court modified the ruling and held that for
Lagon to become liable for damages, he must have
known of the lease contract and must have also acted
with malice or bad faith when he bought the subject
parcels of land. Thus, it deleted the award for moral
damages, compensatory damages, exemplary
damages, temperate or moderate damages, and
nominal damages as well as expenses of litigation and
the award for attorney's fees was reduced to P30,000.
The Court explained that the tort recognized in Article

1314 is known as interference with contractual rela-
tions and it is penalized because it violates the
property rights of a party in a contract to reap the
benefits that should result therefrom.
Thus, the issue before the Court was whether the

purchase by Lagon of the subject property, during the
supposed existence of Lapuz' lease contract with the
late Bai Tonina Sepi, constituted tortuous interference
for which Lagon should be held liable for damages.
The Court cited the case of So Ping Bun v. Court of

Appeals, which laid down the elements of tortuous
interference with contractual relations:
(a) existence of a valid contract;

(b) knowledge on the part of the third person of
the existence of the contract and
(c) interference of the third person without legal
justification or excuse.
In connection with the first element, the Court ex-

plained that the existence of a valid contract must be
duly established. In this case, Lapuz presented in
court a notarized copy of the purported lease renewal
by which the Court found to be incontestable proof
that Lapuz and the late Bai Tonina Sepi actually
renewed their lease contract.
As to the second element, the Court explained that it

requires that there be knowledge on the part of the
interferer that the contract exists. It added:
Knowledge of the subsistence of the contract is an
essential element to state a cause of action for tortuous
interference. A defendant in such a case cannot be made
liable for interfering with a contract he is unaware of.
While it is not necessary to prove actual knowledge, he must
nonetheless be aware of the facts which, if followed by
a reasonable inquiry, will lead to a complete disclosure
of the contractual relations and rights of the parties in
the contract. (citations omitted, emphasis supplied)
In this case, the Court found that Lagon had no

knowledge of the lease contract. It said:
He conducted his own personal investigation and

inquiry, and unearthed no suspicious circumstance that
would have made a cautious man probe deeper and
watch out for any conflicting claim over the property. An
examination of the entire property's title bore no
indication of the leasehold interest of private respondent.
Even the registry of property had no record of the same.
The Court added:

Assuming ex gratiaargumenti that petitioner knew of the
contract, such knowledge alone was not sufficient to
make him liable for tortuous interference. Which brings
us to the third element. According to our ruling in So
Ping Bun, petitioner may be held liable only when there
was no legal justification or excuse for his action or
when his conduct was stirred by a wrongful motive. To
sustain a case for tortuous interference, the defendant
must have acted with malice or must have been driven
by purely impious reasons to injure the plaintiff. In
other words, his act of interference cannot be justified.
In this case, the Court found no "inducement" on the

part of Lagon. It said:
Furthermore, the records do not support the allegation of

private respondent that petitioner induced the heirs of
Bai Tonina Sepi to sell the property to him. The word
"induce" refers to situations where a person causes
another to choose one course of conduct by persuasion
or intimidation. The records show that the decision of
the heirs of the late Bai Tonina Sepi to sell the property
was completely of their own volition and that petitioner
did absolutely nothing to influence their judgment.
Private respondent himself did not proffer any evidence
to support his claim. In short, even assuming that private

respondent was able to prove the renewal of his lease
contract with Bai Tonina Sepi, the fact was that he was
unable to prove malice or bad faith on the part of
petitioner in purchasing the property. Therefore, the
claim of tortuous interference was never established.
(emphasis supplied)
After quoting So Ping Bun, the Court said that Lagon's

purchase of the subject property was merely an
advancement of his financial or economic interests,
absent any proof that he was enthused by improper
motives.
The Court cited Gilchist v. Cuddy as authority for the

view that:
a person is not a malicious interferer if his conduct is
impelled by a proper business interest. In other words, a
financial or profit motivation will not necessarily make a
person an officious interferer liable for damages as long
as there is no malice or bad faith involved.
Thus, the Court ruled that because not all three

elements to hold Lagon liable for tortuous interference
were present, he cannot be made to answer for Lapuz'
losses.
In Go v. Cordero,5 3 Mortimer Cordero ventured into the

business of marketing inter-island passenger vessels.
He met Tony Robinson, the Managing Director of
Aluminium Fast Ferries Australia ("AFFA"). Robinson
signed documents appointing Cordero as the exclu-
sive distributor of AFFA catamaran and other fast
53 Go v. Cordero, G.R. No. 164703, 4 May 2010.

PERSONS SPECFIC=Y LE I 505
ferry vessels in the Philippines. As such exclusive

distributor, Cordero offered for sale to prospective
buyers the 25-meter Aluminum Passenger catamaran
known as the SEACAT 25. After negotiations with
Felipe Landicho and Vincent Tecson, lawyers of Allan
Go who was the owner/operator of ACG Express
Liner, Cordero was able to close a deal for the
purchase of two units. They executed a Shipbuilding
Contract for one SEACAT 25. Cordero made two trips
to the AFFA Shipyard in Brisbane, Australia, and on
one occasion even accompanied Go and his family
and Landicho to monitor the progress of the building
of the vessel. He shouldered all the expenses for
airfare, food, hotel accommodations, transportation
and entertainment during these trips. He also spent
for long distance telephone calls to communicate
regularly with Robinson, Go, Tecson and Landicho.
However, Cordero later discovered that Go was
dealing directly with Robinson. Cordero immediately
flew to Brisbane to clarify matters with Robinson, only
to find out that Go and Landicho were already there
in Brisbane negotiating for the sale of the second
SEACAT 25. Despite repeated follow-up calls, no
explanation was given by Robinson, Go, Landicho
and Tecson, who even made Cordero believe there
would be no further sale between AFFA and ACG
Express Liner. In a letter, Cordero informed Go that
such act of dealing directly with Robinson violated his
exclusive distributorship. Cordero's lawyer also wrote
ACG Express, assailing the fraudulent actuations and
misrepresentations committed by Go in connivance
with his lawyers in breach of Cordero's exclusive
distributorship appointment. Thereafter, Cordero
506 I ANA.YSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DEUCTS
instituted a civil case, seeking to hold Robinson, Go,

Tecson and Landicho liable jointly and solidarily for
conniving and conspiring together in violating his
exclusive distributorship in bad faith and wanton
disregard of his rights, thus depriving him of his due
commissions and causing him actual, moral and
exemplary damages. The trial court ruled in favor of
Cordero and awarded him damages. The appellate
court reduced the amounts awarded to Cordero.
The Court explained that while it is true that a third

person cannot possibly be sued for breach of contract
because only parties can breach contractual provi-
sions, a contracting party may sue a third person not
for breach but for inducing another to commit such
breach.
After quoting Article 1314, the Court enumerated the

"elements of tort interference:"
(1) existence of a valid contract;

(2) knowledge on the part of the third person of
the existence of a contract; and
(3) interference of the third person is without legal
justification.5 4
The Court held that the first and second elements

were present. It said:
54
Citing So Ping Bun v. Court of Appeals, G.RI No. 120554, 21 September
1999, 314 SCRA 751, 758, citing 30 Am Jur, Section 19, pp. 71-72 and
Sampaguita Pictures, Inc. v. Vasquez, et al. (Court of Appeals, 68 O.G.
7666).
PERSONS SPECIFICALLY LALE I 507
Through the letters issued by Robinson attesting that

Cordero is the exclusive distributor of AFFA in the
Philippines, respondents were dearly aware of the
contract between Cordero and AFFA represented by
Robinson. In fact, evidence on record showed that
respondents initially dealt with and recognized Cordero
as such exclusive dealer of AFFA high-speed catamaran
vessels in the Philippines. In that capacity as exclusive
distributor, petitioner Go entered into the Memorandum
of Agreement and Shipbuilding Contract No. 7825 with
Cordero in behalf of AFFA.
As for the third element, the Court cited So Ping Bun

v. Court of Appeals and emphasized the following
statements therein:
* As early as Gilchrist vs. Cuddy, we held that

where there was no malice in the interference
of a contract, and the impulse behind one's
conduct lies in a proper business interest rather
than in wrongful motives, a party cannot be a
malicious interferer.
" Though petitioner took interest in the property
of respondent corporation and benefited from
it, nothing on record imputes deliberate
wrongful motives or malice in him.
" Lack of malice, however, precludes damages.
But it does not relieve petitioner of the legal
liability for entering into contracts and causing
breach of existing ones.
The Court explained that malice connotes ill will or

spite, and speaks not in response to duty. It implies an
intention to do ulterior and unjustifiable harm. Malice
is bad faith or bad motive.
The Court cited Lagon v. Court of Appeals as authority

for the view that:
to sustain a case for tortuous interference, the defendant
must have acted with malice or must have been driven
by purely impure reasons to injure the plaintiff; in other
words, his act of interference cannot be justified. We
further explained that the word "induce" refers to situa-
tions where a person causes another to choose one
55
course of conduct by persuasion or intimidation.

The act of Go, Landicho and Tecson in inducing
Robinson and AFFA to enter into another contract
directly with ACG Express Liner to obtain a lower price
for the second vessel resulted in AFFA's breach of its
contractual obligation to pay in full the commission due
to Cordero and unceremonious termination of Cordero's
appointment as exclusive distributor. Following our
pronouncement in Gilchrist v. Cuddy (supra), such act
may not be deemed malicious if impelled by a proper
business interest rather than in wrongful motives. The
attendant circumstances, however, demonstrated that
respondents transgressed the bounds of permissible
financial interest to benefit themselves at the expense
of Cordero. Respondents furtively went directly to
Robinson after Cordero had worked hard to close the
deal for them to purchase from AFFA two SEACAT 25,
closely monitored the progress of building the first
vessel sold, attended to their concerns and spent no
measly sum for the trip to Australia with Go, Landicho
and Go's family members. But what is appalling is the
fact that even as Go, Landicho and Tecson secretly
negotiated with Robinson for the purchase of a second
vessel, Landicho and Tecson continued to demand and
receive from Cordero their "commission" or "cut" from
55d.
Cordero's earned commission from the sale of the first

SEACAT 25.
Cordero was practically excluded from the transaction

when Go, Robinson, Tecson and Landicho suddenly
ceased communicating with him, without giving him
any explanation. While there was nothing objectionable
in negotiating for a lower price in the second purchase of
SEACAT 25, which is not prohibited by the Memo-
randum of Agreement, Go, Robinson, Tecson and
Landicho clearly connived not only in ensuring that
Cordero would have no participation in the contract for
sale of the second SEACAT 25, but also that Cordero
would not be paid the balance of his commission from
the sale of the first SEACAT 25. This, despite their
knowledge that it was commission already earned by
and due to Cordero. Thus, the trial and appellate courts
correctly ruled that the actuations of Go, Robinson,
Tecson and Landicho were without legal justification
and intended solely to prejudice Cordero. (emphasis
supplied)
Clearly, the Court in this case had to go to great

lengths to justify the argument that there was malice
on the part of Go et al. In fact, the Court added
another basis for the liability by characterizing it as a
violation of Article 19 of the Civil Code.
Citation:
Tue Apr 17 10:46:38 2018



VIII. Human Relations Torts
A. ABUSE OF RIGHTS
Article 19 of the Civil Code provides that every

person must, in the exercise of his rights and in the
performance of his duties, act with justice, give
everyone his due, and observe honesty and good
faith.
Article 19 is commonly referred to as embodying the

principle of abuse of rights.' Considering that the arti-
cle creates a duty or obligation, and that it pertains
not only to the exercise of rights but also to the
performance of duties, it may be more appropriate to
refer to it as the "no harm principle" or the "good faith
principle," considering that it has also been referred to
as the "cardinal rule on human conduct." 2 Articles 19'
and 20, taken together, have also been referred to as
the "principle of good dealings." 3
The rationale behind this principle is that:

In civilized society, men must be able to assume that
others will do them no intended injury-that others
will commit no internal aggressions upon them; that
their fellowmen, when they act affirmatively will do so
with due care which the ordinary understanding and
I Globe Mackay v. CA, G.R. No. 81262, 25 August 1989; Albenson v. CA,
G.R. No. 88694,11 January 1993.
2 Andrade v. CA, G.R. No. 127932, 7 December 2001; Sea Commercial
Company v. CA, G.R. No. 122823,25 November 1999.
3 UE v. Jader,G.R. No. 132344,17 February 2000.
512 1 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASi-DELUCTS
moral sense of the community exacts and that those with

whom they deal in the general course of society will act
in good faith. The ultimate thing in the theory of liability
is justifiable reliance under conditions of civilized
society. 4 (emphasis supplied)
This principle "sets certain standards which must be

observed not only in the exercise of one's rights but
also in the performance of one's duties."5
The law, therefore, recognizes a primordial limitation
on all rights; that in their exercise, the norms of human
6
conduct set forth in Article 19 must be observed.
(emphasis supplied)
The purpose of Article 19 is "to expand the concept of

torts by granting adequate legal remedy for the untold
number of moral wrongs which is impossible for
human foresight to provide specifically in statutory
law."7
The effect of Article 19 is that "[a] right, though by

itself legal because recognized or granted by law as
such, may nevertheless become the source of some
illegality."8 This happens when a right "is exercised in
a manner which does not conform with the norms
enshrined in Article 19 and results in damage to
4 Id.
5 Globe Mackay v. CA, G.R. No. 81262, 25 August 1989; Albenson v. CA,
G.R. No. 88694,11 January 1993.
6 Id.
7 LIE v. Jader, G.R. No. 132344, 17 February 2000; Sea Commercial
Company v. CA, G.R. No. 122823,25 November 1999.
8 Globe Mackay v. CA, G.R. No. 81262, 25 August 1989; Albenson v. CA,
G.R. No. 88694,11 January 1993.
HuM RELATiONS TORTS I 513
another, a legal wrong is thereby committed for which

the wrongdoer must be held responsible."9
Another effect of the application of Article 19 is that it

precludes the defense of damnum absque injuria,which
states that the legitimate exercise of a person's rights,
even if it causes loss to another, does not auto-
matically result in an actionable injury.1° Damnum
absque injuria does not apply when there is an abuse of
a person's right."
The Court has ruled that Article 19 is a mere decla-

ration of principle 12 and must be implemented by
Article 20 or 21.13 In one case, the Court explained it
thus:
While Article 19 enumerates the standards of conduct,

Article 21 provides the remedy for the person injured by
the willful act, an action for damages. 14
But there are cases where the Court granted an award

of damages based on Article 19 without ruling on
whether Article 20 or 21 had been proved.'5
While the Court has said that there is no hard and fast
rule, which can be applied to determine whether or
9 Id.
lo Amonoy v. Gutierrez, G.R. No. 140420,15 February 2001.
11 Id.
12 Sea Commercial Company v. CA, G.R. No. 122823,25 November 1999.
13 Globe Mackay v. CA, G.R. No. 81262, 25 August 1989; Velayo v. Shell
G.R. No. L-7817, 31 October 1956.
14 Pantaleonv. American Express, G.R. No. 174269, 25 August 2010.
15 UE v. fader, G.R No. 132344, 17 February 2000; Sea Commercial
Company v. CA, G.R. No. 122823, 25 November 1999.
not the principle of abuse of rights may be invoked, 16

it has nonetheless listed the elements of an abuse of
right:17
" a legal right or duty;

" exercised in bad faith;
" for the sole intent of prejudicing or injuring
another.
The elements as enumerated are problematic. When

one exercises a right "for the sole intent of prejudicing
or injuring another," isn't this in bad faith? Thus, by
proving the third element, one necessarily proves the
second. If so, what is the point in requiring the second
element?
In addition, the third element may be too high a stan-

dard that would defeat the purpose of the provision.
Under the third element, all that the defendant would
have to do is show that he had other intentions apart
from injuring the plaintiff. The defendant may have
had other less than legitimate reasons to abuse his
right apart from injuring the plaintiff. In such a case,
should the defendant be absolved from liability
because he had other non-legitimate reasons?
In the cases discussed in this chapter, it can be seen

that the Court does not always adhere to these ele-
ments in determining whether there has been an
16 Albenson v. CA, G.R. No. 88694,11 January 1993.

17
Heirs of Nala v. Cabansag,G.R. No. 161188, 13 June 2008; Diaz v. Davao
Light, G.R. No. 160959,4 April 2007; Andrade v. CA, G.R. No. 127932, 7
December 2001; Sea Commercial v. CA, G.R. No. 122823, 25 November
1999; Albenson v. CA, G.R. No. 88694,11 January 1993.
HUmN RELATIONS TORTS 1 515
abuse of rights.18 Thus, the principle may be invoked

if it is proven that a right or duty was exercised in bad
faith, regardless of whether it was for the sole intent
of injuring another. Thus, it is the absence of good
faith which is essential 19 for the application of this
principle.
For purposes of Artide 19, good faith, a state of the

mind which is manifested by the acts of the indi-
vidual, 20 has been defined as:
an honest intention to abstain from taking any uncon-

scientious advantage of another, even through the forms
or technicalities of the law, together with an absence of
all information or belief of fact which would render the
transaction unconscientious. 21
On the other hand:

bad faith does not simply connote bad judgment or
negligence; it imputes a dishonest purpose or some
moral obliquity and conscious doing of a wrong; a
breach of sworn duty through some motive or intent or
ill will; it partakes of the nature of fraud. 22
In Globe Mackay v. CA, 23 Restituto Tobias was em-

ployed by Globe Mackay Cable and Radio Corpo-
ration ("Globe Mackay") in a dual capacity as a pur-
chasing agent and administrative assistant to the
18 See LIE v. Jader,G.R. No. 132344,17 February 2000; Globe Mackay v. CA,
G.R. No. 81262, 25 August 1989.
19 Sea Commercialv. CA, G.R. No. 122823,25 November 1999.
20 Diaz v. DavaoLight, G.R. No. 160959,4 April 2007.
2
1Sea Commercialv. CA, G.R. No. 122823,25 November 1999.
22 Andrade v. CA, G.R. No. 127932,7 December 2001.
23 Globe Mackay v. CA, G.R. No. 81262,25 August 1989.
engineering operations manager. Globe Mackay dis-

covered fictitious purchases and other fraudulent
transactions for which it lost a large sum of money.
According to Tobias, he was the one who actually
discovered the anomalies and reported them to his
immediate superior Eduardo Ferraren and to Herbert
Hendry who was then the Executive Vice-President
and General Manager of Globe Mackay. One day after
Tobias made the report, Hendry confronted him by
stating that he was the number one suspect, and
ordered him to take a one-week forced leave, not to
communicate with the office, to leave his table
drawers open, and to leave the office keys. When
Tobias returned to work after the forced leave,
Hendry went up to him and called him a "crook" and
a "swindler." Tobias was then ordered to take a lie
detector test. He was also instructed to submit a spe-
cimen of his handwriting, signature, and initials for
examination by the police investigators to determine
his complicity in the anomalies. The Manila police
investigators submitted a laboratory crime report
clearing Tobias of participation in the anomalies. Not
satisfied with the police report, Globe Mackay hired a
private investigator who submitted a report finding
Tobias guilty. This report, however, expressly stated
that further investigation was still to be conducted.
Nevertheless, Hendry issued a memorandum sus-
pending Tobias from work preparatory to the filing of
criminal charges against him. Later, Lt. Dioscoro
Tagle, a Metro Manila Police Chief Document Exa-
miner, after investigating other documents pertaining
to the alleged anomalous transactions, submitted a se-
cond laboratory crime report reiterating his previous
HUMAN RELATIONS ToRmS I 517
finding that the handwritings, signatures, and initials

appearing in the checks and other documents in-
volved in the fraudulent transactions were not those
of Tobias. The lie detector tests conducted on Tobias
also yielded negative results. Despite the two police
reports exculpating Tobias from the anomalies and
the fact that the report of the private investigator was,
by its own terms, not yet complete, Globe Mackay
filed a complaint for Estafa. Subsequently, five other
criminal complaints were filed against Tobias, four of
which were for Estafa through Falsification of
Commercial Document while the fifth was for
violation of Article 290 of the Revised Penal Code
(Discovering Secrets Through Seizure of Corres-
pondence). The fiscal dismissed all six of the criminal
complaints and the Secretary of Justice affirmed their
dismissal. In the meantime, Tobias received a notice of
termination from employment. Unemployed, Tobias
sought employment with the Republic Telephone
Company ("RETELCO"). However, Hendry, without
being asked by RETELCO, wrote a letter to the latter
stating that Globe Mackay dismissed Tobias due to
dishonesty. Tobias filed a civil case for damages
anchored on alleged unlawful, malicious, oppressive,
and abusive acts of Globe Mackay and Hendry. The
lower courts awarded damages.
Commenting on the Human Relations provisions, the

Court said:
One of the more notable innovations of the New Civil

Code is the codification of "some basic principles that are
to be observed for the rightful relationship between
human beings and for the stability of the social order." ...
518 1 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON ToRTs AND QuAsi-DELicTS
The framers of the Code, seeking to remedy the defect of

the old Code which merely stated the effects of the law,
but failed to draw out its spirit, incorporated certain
fundamental precepts which were "designed to indicate
certain norms that spring from the fountain of good
conscience" and which were also meant to serve as
"guides for human conduct [that] should run as golden
threads through society, to the end that law may
approach its supreme ideal, which is the sway and
dominance of justice."
The Court stated that foremost among these principles

was Article 19. It added:
This article, known to contain what is commonly

referred to as the principle of abuse of rights, sets certain
standards which must be observed not only in the
exercise of one's rights but also in the performance of
one's duties. These standards are the following: to act
with justice; to give everyone his due; and to observe
honesty and good faith. The law, therefore, recognizes a
primordial limitation on all rights; that in their exercise,
the norms of human conduct set forth in Article 19 must
be observed. A right, though by itself legal because
recognized or granted by law as such, may nevertheless
become the source of some illegality. When a light is
exercised in a manner which does not conform with the
norms enshrined in Article 19 and results in damage to
the wrongdoer must be held responsible. But while
Article 19 lays down a rule of conduct for the govern-
ment of human relations and for the maintenance of
social order, it does not provide a remedy for its
violation. Generally, an action for damages under either
Article 20 or Article 21 would be proper.
Regarding the applicability of Article 19, the Court

said:
HUMAN RELATiONS TORTS I 519
In determining whether or not the principle of abuse of

rights may be invoked, there is no rigid test which can be
applied. While the Court has not hesitated to apply
Article 19 [whenever] the legal and factual circumstances
called for its application ... the question of whether or
not the principle of abuse of rights has been violated
resulting in damages under Article 20 or Article 21 or
other applicable provision of law, depends on the cir-
cumstances of each case. And in the instant case, the
Court, after examining the record and considering
certain significant circumstances, finds that petitioners
have indeed abused the right that they invoke, causing
damage to private respondent and for which the latter
must now be indemnified. (citations omitted)
The Court found that notwithstanding the fact that it

was Tobias who reported the possible existence of
anomalous transactions, Hendry showed belligerence
and told him that he was the number one suspect, to
take a one-week vacation leave, not to communicate
with the office, to leave his table drawers open, and to
leave his keys to Hendry. It said that regardless of
whether or not it was Tobias who reported the
anomalies, the reaction towards him upon uncovering
the anomalies was less than civil. It added:
An employer who harbors suspicions that an employee

has committed dishonesty might be justified in taking
the appropriate action such as ordering an investigation
and directing the employee to go on a leave. Firmness
and the resolve to uncover the truth would also be
expected from such employer. But the high-handed
treatment accorded Tobias by petitioners was certainly
uncalled for. And this reprehensible attitude of peti-
tioners was to continue when private respondent
returned to work on November 20, 1972 after his one
week forced leave. Upon reporting for work, Tobias was
520 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUAS-DELICTS
confronted by Hendry who said. "Tobby, you are the

crook and swindler in this company." Considering that
the first report made by the police investigators was
submitted only on December 10, 1972 ... the statement
made by petitioner Hendry was baseless. The impu-
tation of guilt without basis and the pattern of
harassment during the investigations of Tobias trans-
gress the standards of human conduct set forth in Article
19 of the Civil Code. The Court has already ruled that
the right of the employer to dismiss an employee should
not be confused with the manner in which the right is
exercised and the effects flowing therefromrL If the
dismissal is done abusively, then the employer is liable
for damages to the employee ... Under the circumstances
of the instant case, the petitioners clearly failed to
exercise in a legitimate manner their right to dismiss
Tobias, giving the latter the right to recover damages
under Article 19 in relation to Article 21 of the Civil
Code. (citations omitted, emphasis supplied)
Regarding the invocation of the principle of damnum

absque injuria,the Court ruled:
This principle finds no application in this case. It bears

repeating that even granting that petitioners might have
had the right to dismiss Tobias from work, the abusive
manner in which that right was exercised amounted to a
legal wrong for which petitioners must now be held
liable.
In Albenson v. CA, 24 Albenson Enterprises Corporation

("Albenson") delivered to Guaranteed Industries
('Guaranteed") at its Sta. Mesa, Manila address the
mild steel plates which the latter ordered. As part of
payment, Albenson was given a check drawn against
the account of E.L. Woodworks. The check was dis-
2
4 Albenson v. CA, G.R. No. 88694,11 January 1993.
HUmANReAnoNSTORTS I 521
honored. From the records of the Securities and

Exchange Commission, Albenson discovered that the
president of Guaranteed was "Eugenio S. Baltao." In
addition, Albenson was informed by the Ministry of
Trade and Industry that E.L. Woodworks was a single
proprietorship registered in the name of "Eugenio
Baltao." Upon verification with the drawee bank,
Albenson was advised that the signature appearing
on the subject check belonged to one "Eugenio
Baltao." After obtaining all this information, Albenson
made an extrajudicial demand upon Eugenio S. Bal-
tao. After Baltao denied issuing the check, Albenson
filed a complaint for violation of Batas Pambansa Big.
22 with the Provincial Fiscal. But Baltao had a name-
sake, Eugenio Baltao I, who managed E.L. Wood-
works at the ground floor of the Baltao building, the
same address of Guaranteed. The Assistant Fiscal filed
an information against Baltao. However, the Pro-
vincial Fiscal reversed this.
Because of the alleged unjust filing of a criminal case

against him for allegedly issuing a check which
bounced in violation of Batas Pambansa Blg. 22 for a
measly amount of P2,575, Baltao filed a complaint for
damages against Albenson, Jesse Yap, its owner, and
Benjamin Mendiona, its employee. The lower courts
found Albenson liable for damages.
Albenson alleged that the case against them was one

for malicious prosecution and that the absence of
malice on their part absolves them from liability.
Baltao, on the other hand, argued that it was based on
Articles 19, 20, and 21.
522 I ANALYSIS OF PHILUPPINE LAW AND JURISPRUDENCE ON ToRTs AND QUASI-DELIcTS
The Court did not seem to make a ruling on the appli-

cable cause of action but simply held that "[n]o
damages can be awarded in the instant case, whether
based on the principle of abuse of rights, or for mali-
cious prosecution."
The Court began its discussion on abuse of rights by

stating:
Article 19, known to contain what is commonly referred

to as the principle of abuse of rights, sets certain
standards which may be observed not only in the
honesty and good faith. The law, therefore, recognizes
the primordial limitation on all rights: that in their
exercise, the norms of human conduct set forth in Article
19 must be observed. A right, though by itself legal
because recognized or granted by law as such, may
nevertheless become the source of some illegality. When
a right is exercised in a manner which does not conform
with the norms enshrined in Article 19 and results in
damage to another, a legal wrong is thereby committed
for which the wrongdoer must be held responsible.
After enumerating its elements, the Court further

explained that under Article 19, the act complained of
must be intentional.
The Court found that there was no abuse of rights in

this case. It explained:
Certainly, petitioners could not be said to have violated

the aforestated principle of abuse of right. What
prompted petitioners to file the case for violation of
Batas Pambansa Bilang 22 against private respondent
HUMANRELA iONSTORTS 1 523
was their failure to collect the amount of P2,575.00 due

on a bounced check which they honestly believed was
issued to them by private respondent. Petitioners had
conducted inquiries regarding the origin of the check,
and yielded the following results: from the records of the
Securities and Exchange Commission, it was discovered
that the President of Guaranteed (the recipient of the
unpaid mild steel plates), was one "Eugenio S. Baltao;"
an inquiry with the Ministry of Trade and Industry
revealed that E.L. Woodworks, against whose account
the check was drawn, was registered in the name of one
"Eugenio Baltao;" verification with the drawee bank, the
Pacific Banking Corporation, revealed that the signature
appearing on the check belonged to one "Eugenio
Baltao."
In a letter dated December 16, 1983, counsel for

petitioners wrote private respondent demanding that he
make good the amount of the check. Counsel for private
respondent wrote back and denied, among others, that
private respondent ever transacted business with
Albenson Enterprises Corporation; that he ever issued
the check in question. Private respondent's counsel even
went further: he made a warning to defendants to check
the veracity of their claim. It is pivotal to note at this
juncture that in this same letter, if indeed private
respondent wanted to clear himself from the baseless
accusation made against his person, he should have
made mention of the fact that there are three persons
with the same name, i.e.: Eugenio Baltao Sr., Eugenio S.
Baltao, Jr. (private respondent), and Eugenio Baltao Ill
(private respondent), and Eugenio Baltao I (private
respondent's son, who as it turned out later, was the
issuer of the check). He, however, failed to do this. The
last two Baltaos were doing business in the same
building-Baltao Building-located at 3267 V. Mapa
Street, Sta. Mesa, Manila. The mild steel plates were
ordered in the name of Guaranteed of which respondent
Eugenio S. Baltao is the president and delivered to
Guaranteed at Baltao building. Thus, petitioners had
524 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASIDELICTS
every reason to believe that the Eugenio Baltao who

issued the bouncing check is respondent Eugenio S.
Baltao when their counsel wrote respondent to make
good the amount of the check and upon refusal, filed the
complaint for violation for BP Blg. 22.
Private respondent, however, did nothing to clarify the

case of mistaken identity at first hand. Instead, private
respondent waited in ambush and thereafter pounced
on the hapless petitioners at a time he thought was
propituous by filing an action for damages. The Court
will not countenance this devious scheme. (emphasis
supplied)
The Court did not explicitly state which element was

missing, but from the discussion, it may be implied
that the second and/or third element was missing.25
By its statements, the Court implied Albenson filed
the criminal action in good faith.
The Court also made much of the fact that Baltao did
not volunteer information regarding the existence of
two other persons named "Eugenio Baltao." First of
all, this is not necessarily a case where Baltao "waited
in ambush and thereafter pounced on the hapless"
Albenson. Baltao, as the Court puts it, was simply a
father not wanting to incriminate his son or his
grandson. But even if there was bad faith on the part
of Baltao, this was irrelevant as far as determining
good faith on the part of Albenson.
25
in practical terms, it is difficult to differentiate the second from the
third element
HumAN RELATiOs TORTS I 525
In Amonoy v. Gutierrez,26 the Court had occasion to ex-

plain the relationship between abuse of rights and
damnum absque injuria. Sergio Amonoy bought at an
auction sale several lots. Included in the lots sold was
the lot on which the Gutierrez spouses had their
house. These lots were subject to litigation but
Amonoy obtained a judgment in his favor. The trial
court issued a Writ of Possession and pursuant to
which, a Notice to Vacate was made on 26 August
1985. On Amonoy's motion, the Orders of 25 April
1986 and 6 May 1986 were issued for the demolition of
structures in the said lots, including the house of the
Gutierrez spouses. A petition was filed before the
Supreme Court and a temporary restraining order
was granted on 2 June 1986, enjoining the demolition
of the houses. On 5 October 1988, a Decision was
rendered, setting aside the Writ of Possession, as well
as its Orders, dated 25 April 1986 and 16 May 1986.
But by the time this decision was issued, the house of
the Gutierrez spouses had been demolished. Thus,
they filed a complaint for damages in connection with
the destruction of their house. The trial court
reversed this ruling.
At the outset, the Court explained the principle of

damnum absque injuria.It said:
Under this principle, the legitimate exercise of a person's
rights, even if it causes loss to another, does not
automatically result in an actionable injury. The law does
not prescribe a remedy for the loss. This principle does
26
Amonoy v. Gutierrez G.R No. 140420,15 February 2001.
not, however, apply when there is an abuse of a

person's right, or when the exercise of this right is
suspended or extinguished pursuant to a court order.
Indeed, in the availment of one's rights, one must act
with justice, give others their due, and observe honesty
and good faith. (emphasis supplied)

Well-settled is the maxim that damage resulting from the
legitimate exercise of a person's rights is a loss without
injury-damnum absque injuria-forwhich the law gives
no remedy. In other words, one who merely exercises
one's rights does no actionable injury and cannot be held
liable for damages.
The Court rejected Amonoy's invocation of this

principle. It explained:
True, petitioner commenced the demolition of respon-
dents' house on May 30, 1986 under the authority of a
Writ of Demolition issued by the RTC. But the records
show that a Temporary Restraining Order (TRO),
enjoining the demolition of respondents' house, was
issued by the Supreme Court on June 2, 1986. The CA
also found, based on the Certificate of Service of the
Supreme Court process server, that a copy of the TRO
was served on petitioner himself on June 4,1986.
Petitioner, however, did not heed the TRO of this Court.

We agree with the CA that he unlawfully pursued the
demolition of respondents' house well until the middle
of 1987.
The Court, relying on the testimony of Angela

Gutierrez, did not believe the claim of Amonoy that
the demolition, which allegedly commenced only on
May 30, 1986, was completed the following day and
HUMAN iR.AnoNSTOrS 527
his claim that the demolition had already ceased when

he received notice of the TRO. The Court ruled:
Although the acts of petitioner may have been legally

justified at the outset, their continuation after the
issuance of the TRO amounted to an insidious abuse of
his right. Indubitably, his actions were tainted with bad
faith. Had he not insisted on completing the demolition,
respondents would not have suffered the loss that
engendered the suit before the RTC. Verily, his acts
constituted not only an abuse of a right, but an invalid
exercise of a right that had been suspended when he
received the TRO from this Court on June 4, 1986. By
then, he was no longer entitled to proceed with the
demolition. (emphasis supplied)
The Court quoted Gonzales-Decano:27

The exercise of a right ends when the right disappears,
and it disappears when it is abused, especially to the
prejudice of others. The mask of a right without the spirit
of justice which gives it life, is repugnant to the modern
concept of social law. It cannot be said that a person
exercises a right when he unnecessarily prejudices
another .... Over and above the specific precepts of
positive law are the supreme norms of justice ...
;and he
who violates them violates the law. For this reason, it is
not permissible to abuse our rights to prejudice others. 28
The Court held:

Clearly then, the demolition of respondents' house by
petitioner, despite his receipt of the TRO, was not only
an abuse but also an unlawful exercise of such right. In
insisting on his alleged right, he wantonly violated this
27 Thecitation indicated by the Court was "Alicia Gonzales-Decano,

Notes on Torts and Damages, p. 97."
2 Id.
528 1 ANALYSIS OF PHIUPPINE LAW AND JUMSPRUDENCE ON TORTS AND QUASIDEUcTs
Court's Order and wittingly caused the destruction of

respondents' house.
Obviously, petitioner cannot invoke damnum absque

injuria, a principle premised on the valid exercise of a
right. Anything less or beyond such exercise will not
give rise to the legal protection that the principle
accords. And when damage or prejudice to another is
occasioned thereby, liability cannot be obscured, much
less abated. (emphasis supplied)
In UE v. Jader,29 the issue was the liability of a law

school to a student who was not seasonably informed
of his failing grade. Romeo Jader was enrolled in the
University of the East ("UE") College of Law. In the
first semester of his last year, he failed to take the
regular final examination in Practice Court I for which
he was given an incomplete grade. He enrolled for the
second semester as a fourth year law student and on
February 1, 1988, he filed an application for the
removal of the incomplete grade given him by
Professor Carlos Ortega, which was approved by
Dean Celedono Tiongson after payment of the
required fee. He took the examination on March 28,
1988. On May 30, 1988, Professor Carlos Ortega
submitted his grade. It was a grade of 5. In the
meantime, the Dean and the Faculty Members of the
College of Law met to deliberate on whom among the
fourth year students should be allowed to graduate.
Jader's name appeared in the Tentative List of
Candidates for graduation for the Degree of Bachelor
of Laws (LL.B) as of Second Semester (1987-1988) with
the following annotation:
UE v. Jader, G.R. No. 132344,17 February 2000.

HuMAN RELATiONS TORTs 529
JADER ROMEO A.
Def. Conflict of Laws - x-1-87-88, Practice Court I - Inc.,

1-87-88. C-1 to submit transcript with S.O. (Exhibits '3',
'3-C-1', '3-C-2').
The 35 th Investitures & Commencement Ceremonies

for the candidates of Bachelor of Laws was scheduled
on the 16th of April 1988 at 3:00 p.m., and in the
invitation for that occasion, the name of Jader
appeared as one of the candidates. At the bottom of
the list of the names of the candidates was an
annotation:
This is a tentative list. Degrees will be conferred upon
these candidates who satisfactorily complete require-
ments as stated in the University Bulletin and as
approved of the Department of Education, Culture and
Sports.
Jader attended the investiture ceremonies and during

the program, he went up the stage when his name
was called, escorted by his mother and his eldest
brother who assisted in placing the Hood. His Tassel
was turned from left to right, and he was thereafter
handed by Dean Celedonio a rolled white sheet of
paper symbolical of the Law Diploma. His relatives
took pictures of the occasion. He also tendered a
blow-out that evening which was attended by
neighbors, friends and relatives who wished him luck
for the bar examination. He thereafter prepared
himself for the bar examination, took a leave of
absence without pay from his job from April 20, 1988
to September 30, 1988 and enrolled at the pre-bar
review class in Far Eastern University. When he
530 I ANALYSIS OF PHILIPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASIDEUCTS
learned of the deficiency, he dropped his review class

and was not able to take the bar examination. Jader
sued UE for damages. The lower courts ruled in favor
of Jader.
The issue before the Court was whether an edu-

cational institution can be held liable for damages for
misleading a student into believing that the latter had
satisfied all the requirements for graduation when
such was not the case.
The Court first discussed the contractual relationship

between the school and students. It said that students
are not duty bound to deal with the professors who
are mere agents of the school, but it was the
contractual obligation of the school to timely inform
and furnish sufficient notice and information to each
and every student as to whether he has complied with
all the requirements. In addition, it also ruled that
prior or subsequent to the commencement ceremony,
the school has the obligation to promptly inform the
student of any problem involving grades.
The Court ruled that in belatedly informing Jader of

the result of the removal examination, particularly at a
time when he had already commenced preparing for
the bar exams, UE cannot be said to have acted in
good faith. It added:
Absence of good faith must be sufficiently established
for a successful prosecution by the aggrieved party in a
suit for abuse of right under Article 19 of the Civil Code.
Goodfaith connotes an honest intention to abstain from
taking undue advantage of another, even though the
forms and technicalities of the law, together with the
HumAN ReAIONs TogRS 1 531
absence of all information or belief of facts, would

render the transaction unconscientious. (citation omit-
ted, emphasis supplied)
In this case, the Court found that it was the school that
had access to the relevant information and it was only
the school that can compel its professors to act and
comply with its rules, regulations and policies with
respect to the computation and the prompt sub-
mission of grades. It added:
Students do not exercise control, much less influence,
over the way an educational institution should run its
affairs, particularly in disciplining its professors and
teachers and ensuring their compliance with the school's
rules and orders. Being the party that hired them, it is
the school that exercises general supervision and
exclusive control over the professors with respect to the
submission of reports involving the students' standing.
Exclusive control means that no other person or entity
had any control over the instrumentality which caused
the damage or injury. The college dean is the senior
officer responsible for the operation of an academic
program, enforcement of rules and regulations, and the
supervision of faculty and student services. He must see
to it that his own professors and teachers, regardless of
their status or position outside of the university, must
comply with the rules set by the latter. The negligent act
of a professor who fails to observe the rules of the school,
for instance by not promptly submitting a student's
grade, is not only imputable to the professor but is an act
of the school, being his employer. (citation omitted)
The Court further explained that because the insti-

tution of learning involved is a university engaged in
legal education, it should have practiced what it
inculcates in its students, more specifically the prin-
532 I ANALYSIS OF PHIUPPINE LAw AND JURISPRUDENCE ON TORTS AND QuASI-DEucTs
ciple of good dealings enshrined in Articles 19 and 20 of

the Civil Code.
After elucidating on the rationale behind Article 19,

the Court said:
Schools and professors cannot just take students for
granted and be indifferent to them, for without the latter,
the former are useless.
Educational institutions are duty-bound to inform the

students of their academic status and not wait for the
latter to inquire from the former. The conscious in-
difference of a person to the rights or welfare of the
person/persons who may be affected by his act or
omission can support a claim for damages. Want of care
to the conscious disregard of civil obligations coupled
with a conscious knowledge of the cause naturally
calculated to produce them would make the erring party
liable. (citation omitted, emphasis supplied)
The Court held that UE ought to have known that

time was of the essence in the performance of its
obligation to inform Jader of his grade and it failed to
act seasonably. Thus, UE's liability arose from its
failure to promptly inform Jader of the result of an
examination and in misleading the latter into be-
lieving that he had satisfied all requirements for the
course.
The Court added:
The modem tendency is to grant indemnity for damages

in cases where there is abuse of right, even when the act
is not illicit. If mere fault or negligence in one's acts can
make him liable for damages for injury caused thereby,
with more reason should abuse or bad faith make him
HuMAN RELA'noNs TORTS 533
liable. A person should be protected only when he acts in

the legitimate exercise of his right, that is, when he acts
with prudence and in good faith, but not when he acts
with negligence or abuse. (citation omitted)
In Pantaleonv. American Express,30 Polo Pantaleon sued

American Express ("AMEX") for damages due to
delays in obtaining approval for his credit card
31
purchases.
Article 19 was the basis of the Court's ruling that

AMEX did not have an unlimited right to put off
action on cardholders' purchase requests for
indefinite periods of time. In acting on cardholders'
purchase requests, the Court ruled that AMEX must
take care not to abuse its rights and cause injury to its
clients and/or third persons.
It added:
Article 19 pervades the entire legal system and ensures
that a person suffering damage in the course of another's
exercise of right or performance of duty, should find
himself without relief. It sets the standard for the
conduct of all persons, whether arificial or natural, and
requires that everyone, in the exercise of rights and the
performance of obligations, must (a) act with justice, (b)
give everyone his due, and (c) observe honesty and good
faith. It is not because a person invokes his rights that he
can do anything, even to the prejudice and disadvantage
of another. (citations omitted, emphasis supplied)
30 Pantaleonv. American Express, G.R. No. 174269,25 August 2010.

31
See discussion on "Assumption of Risk" in Chapter IV. Defenses
Against the Charge of Negligence for a more detailed discussion of
the facts.
The Court explained that while Article 19 enumerates

the standards of conduct, Article 21 provides the
remedy for the person injured by the willful act: an
action for damages.
The Court cited GF Equity, Inc. v. Valenzona:32
[Article 19], known to contain what is commonly

referred to as the principle of abuse of rights, sets certain
standards which must be observed not only in the
honesty and good faith. The law, therefore, recognizes a
primordial limitation on all rights; that in their exercise,
the norms of human conduct set forth in Article 19 must
be observed. A right, though by itself legal because
recognized or granted by law as such, may nevertheless
become the source of some illegality. When a right is
exercised in a manner which does not conform with the
norms enshrined in Article 19 and results in damage to
the wrongdoer must be held responsible. But while
Article 19 lays down a rule of conduct for the govern-
ment of human relations and for the maintenance of
social order, it does not provide a remedy for its
violation. Generally, an action for damages under either
Article 20 or Article 21 would be proper.33 (emphasis
supplied)
The Court ruled:
In the context of a credit card relationship, although

there is neither a contractual stipulation nor a specific
law requiring the credit card issuer to act on the credit
32 GF Equity, Inc. v. Va/enzona, GR. No. 156841, 30 June 2005.

3 Id.
HUMAN RELATiONS ToRS I 535
card holder's offer within a definite period of time, these

principles provide the standard by which to judge
AMEX's actions.
Pantaleon's argument was that:
even if AMEX did have a right to review his charge

purchases, it abused this right when it unreasonably
delayed the processing of the Coster charge purchase, as
well as his purchase requests at the Richard Metz' Golf
Studio and Kids' Unlimited Store; AMEX should have
known that its failure to act immediately on charge
referrals would entail inconvenience and result in
humiliation, embarrassment, anxiety and distress to its
cardholders who would be required to wait before
closing their transactions.
In response, the Court reiterated the rule that "good

faith is presumed and that the burden of proving bad
faith rests upon the party alleging it."34 It found that:
Although it took AMEX some time before it approved

Pantaleon's three charge requests, we find no evidence
to suggest that it acted with deliberate intent to cause
Pantaleon any loss or injury, or acted in a manner that
was contrary to morals, good customs or public policy.
We give credence to AMEX's claim that its review proce-
dure was done to ensure Pantaleon's own protection as a
cardholder and to prevent the possibility that the credit
card was being fraudulently used by a third person.
Pantaleon countered that this review procedure is

primarily intended to protect AMEX's interests, to make
sure that the cardholder making the purchase has
enough means to pay for the credit extended. Even if this
were the case, however, we do not find any taint of bad
34 Citing Barons Marketing Corp. v. Court of Appeals, G.R. No. 126486, 9

February 1998,286 SCRA 96,105.
536 ANAL.YSIS oF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASi-OEUCTS
faith in such motive. It is but natural for AMEX to want

to ensure that it will extend credit only to people who
will have sufficient means to pay for their purchases.
AMEX, after all, is running a business, not a charity, and
it would simply be ludicrous to suggest that it would not
want to earn profit for its services. Thus, so long as
AMEX exercises its rights, performs its obligations, and
generally acts with good faith, with no intent to cause
harm, even if it may occasionally inconvenience others, it
cannot be held liable for damages. (emphasis supplied)
B. ILLEGAL AcTs
Article 20 of the Civil Code provides that every

person who, contrary to law, wilfully or negligently
causes damage to another, shall indemnify the latter
for the same.
The Court has explained that Article 20 of the Civil

Code:
provides the legal basis for the award of damages to a

party who suffers damage whenever one commits an act
in violation of some legal provision. This was incor-
porated by the Code Commission to provide relief to a
person who suffers damage because another has violated
some legal provision.35 (emphasis supplied)
In Garcia v. Salvador,36 Ranida Salvador worked as a

trainee in the Accounting Department of Limay Bulk
Handling Terminal, Inc. ("LBTI"). As a prerequisite
for regular employment, she underwent a medical
examination at the Community Diagnostic Center
("CDC"). Orlando Garcia Jr., a medical technologist,
35
Garc v. Salvador,G.R. No. 168512,20 March 2007.
36 Id.
HumAN RFATioNs TomS I 537
conducted the "Hepatitis B Surface Antigen" test and
CDC issued the test result indicating that Ranida was
"HBs Ag: Reactive." The result bore the name and
signature of Garcia as examiner and the rubber stamp
signature of Bu Castro as pathologist. When Ranida
submitted the test result to Dr. Sto. Domingo, LBTI's
physician, the latter apprised her that the findings
indicated that she was suffering from Hepatitis B, a
liver disease. As a result, LBTI terminated Ranida's
employment for failing the physical examination.
When Ranida informed her father, Ramon, about her
ailment, the latter suffered a heart attack and was
confined at the Bataan Doctors Hospital. During
Ramon's confinement, Ranida underwent another
"HBs Ag" test at the said hospital and the result
indicated that she was non-reactive. She informed Sto.
Domingo of this development but was told that the
test conducted by CDC was more reliable because it
used the Micro-Elisa Method. Thus, Ranida went back
to CDC for confirmatory testing, and this time, the
Anti-HBs test conducted on her indicated a "Nega-
tive" result. Ranida also underwent another HBs Ag
test at the Bataan Doctors Hospital using the Micro-
Elisa Method. The result indicated that she was non-
reactive. Ranida submitted the test results from
Bataan Doctors Hospital and CDC to the Executive
Officer of the Company, who requested her to under-
go another similar test before her re-employment
would be considered. Thus, CDC conducted another
HBs Ag test on Ranida, which indicated a "Negative"
result. Calderon, the Med-Tech Officer-in-Charge of
CDC, issued a Certification correcting the initial result
and explained that Garcia interpreted the delayed
538 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON ToRTs AND QuAsDELICTS
reaction as positive or reactive. Thereafter, LBTI

rehired Ranida.
Ranida and Ramon filed a complaint for damages

against Garcia and Castro, claiming that, by reason of
the erroneous interpretation of the results of Ranida's
examination, she lost her job and suffered serious
mental anxiety, trauma and sleepless nights, while
Ramon was hospitalized and lost business oppor-
tunities. The trial court ruled in favor of the de-
fendants, but this was reversed by the appellate court.
It ruled that Garcia was liable for damages for negli-
gently issuing an erroneous HBs Ag result, but it
exonerated Castro for lack of participation in the
issuance of the results.
The Court ruled that all the elements "of an actionable

conduct" were present.37 It said:
Owners and operators of clinical laboratories have the

duty to comply with statutes, as well as rules and
regulations, purposely promulgated to protect and
promote the health of the people by preventing the
operation of substandard, improperly managed and
inadequately supported clinical laboratories and by
improving the quality of performance of clinical labo-
ratory examinations. Their business is impressed with
public interest, as such, high standards of performance
are expected from them. (citation omitted)
37 The elements identified by the Court were duty, breach, injury and
proximate causation.
HUMAN RELAONs TORTS I 539
It added:
In fine, violation of a statutory duty is negligence.
Where the law imposes upon a person the duty to do
something, his omission or non-performance will render
him liable to whoever may be injured thereby. (emphasis
supplied)
The Court quoted Section 2 of Republic Act No. 4688

or the Clinical Laboratory Law, Sections 9(9.1)(1), 11
and 25(25.1)(1) of the DOH Administrative Order No.
49-B Series of 1988, otherwise known as the Revised
Rules and Regulations Governing the Registration,
Operation and Maintenance of Clinical Laboratories
in the Philippines, and Section 29(b) of R.A. No. 5527,
otherwise known as The Philippine Medical Techno-
logy Act of 1969. It said:
From the foregoing laws and rules, it is clear that a
clinical laboratory must be administered, directed and
supervised by a licensed physician authorized by the
Secretary of Health, like a pathologist who is specially
trained in methods of laboratory medicine; that the
medical technologist must be under the supervision of
the pathologist or a licensed physician; and that the
results of any examination may be released only to the
requesting physician or his authorized representative
upon the direction of the laboratory pathologist.
These rules are intended for the protection of the public

by preventing performance of substandard clinical
examinations by laboratories whose personnel are not
properly supervised. The public demands no less than
an effective and efficient performance of clinical labo-
ratory examinations through compliance with the quality
standards set by laws and regulations. (emphasis
suppied)
540 1 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASIDEICTS
The Court ruled that Garcia failed to comply with the

said standards. It added:
Garcia may not have intended to cause the consequences

which followed after the release of the HBsAG test
result. However, his failure to comply with the laws and
rules promulgated and issued for the protection of
public safety and interest is failure to observe that care
which a reasonably prudent health care provider
would observe. Thus, his act or omission constitutes a
breach of duty.
Indubitably, Ranida suffered injury as a direct conse-

quence of Garcia's failure to comply with the mandate of
the laws and rules aforequoted. She was terminated from
the service for failing the physical examination; suffered
anxiety because of the diagnosis; and was compelled to
undergo several more tests. All these could have been
avoided had the proper safeguards been scrupulously
followed in conducting the clinical examination and
releasing the clinical report. (emphasis supplied)
After quoting Article 20, the Court said:

The foregoing provision provides the legal basis for the
award of damages to a party who suffers damage
whenever one commits an act in violation of some legal
provision. This was incorporated by the Code Com-
mission to provide relief to a person who suffers damage
because another has violated some legal provision.
(citations omitted)
The citation of Article 20 would seem to suggest that

the award for damages in this case was based on this
provision. However, earlier in the case, the Court
cited four elements as the elements of "actionable
conduct" which appear to be independent of Article
20. One of the elements was "breach of duty," which
HUMAN RE.ATioNs Toms 541
appears to be the basis of the ruling. The breach of

duty in this case also appears to correspond to the
concept of negligence or the failure to comply with
the standard of diligence required by the circums-
tances.
C. Acrs CoNTR BoNus MoREs
1. In General
Article 21 provides that any person who wilfully cau-

ses loss or injury to another in a manner that is con-
trary to morals, good customs or public policy shall
compensate the latter for the damage. 38
The purpose of Article 21 is to provide a legal remedy

for "moral wrongs" which may not be covered by
existing statutes. As explained by the Code Com-
mission:
Thus at one stroke, the legislator, if the forgoing rule is
approved (as it was approved), would vouchsafe
adequate legal remedy for that untold numbers of moral
wrongs which is impossible for human foresight to
provide for specifically in the statutes.39 (emphasis
supplied)
The Court has pointed out that Article 21 "is designed

to expand the concept of torts or quasi-delict in this
38 ARTICLE 21. Any person who wilfully causes loss or injury to

another in a manner that is contrary to morals, good customs or
public policy shall compensate the latter for the damage.
39 Velayo v. SheM, G.R. No. L-7817, 31 October 1956, quoting '"Report of
the Code Commission on the proposed Civil Code of the Philippines,"
pp. 40-41.
542 I ANYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASi-DEIcTs
jurisdiction by granting adequate legal remedy for the

untold number of moral wrongs which is impossible
for human foresight to specifically enumerate and pu-
nish in the statute books."4 In the same case, the
Court argued that Article 21 fills in a vacuum in
Philippine law because Article 2176 is limited to neg-
ligent acts or omissions while the Revised Penal Code
governs intentional and malicious acts, with certain
exceptions. It said:
In between these opposite spectrums are injurious acts
which, in the absence of Article 21, would have been
beyond redress. Thus, Article 21 fills that vacuum. It is
even postulated that together with Articles 19 and 20 of
the Civil Code, Article 21 has greatly broadened the
scope of the law on civil wrongs; it has become much
more supple and adaptable than the Anglo-American
law on torts.
True to its nature as a provision meant to cover a wide

range of wrongs, the Court has applied Article 21 to a
broad range of cases, including public or social humi-
liation,41 moral seduction,42 oppressive dismissal 43
and malicious prosecution."
40 Baksh v. CA, G.R No. 97336,19 February 1993.

41 Wassmer v. Velez, G.R. No. L-20089, 26 December 1964; Pe v. Pe, G.R.
No. L-17396, 30 May 1962.
42
Tanjancov. CA, G.R. No. L-18630,17 December 1966; Baksh v. CA, G.R.
No. 97336,19 February 1993.
43
Quisaba v. Sta Ines, G.R. No. L-38088, 30 August 1974; Globe Mackay v.
CA, G.R. No. 81262,25 August 1989.
44
Que v. AC, G.R. No. 66865, 13 January 1989; Drilon v. CA, G.R. No.
107019, 20 March 1997; Magbanua v. Junsay, G.R. No. 132659, 12
February 2007.
HUMAN RELATioNs TORTs I 543
Article 21 is based on the premise that morality is the

foundation of law and that human conscience can
serve as a constant basis of legal rules.
But, it may be asked, would this proposed article
obliterate the boundary line between morality and law?
The answer is that, in the last analysis, every good law
draws its breath of life from morals, from those
principles which are written with words of fire in the
conscience of man. If this premises is [sic] admitted,
then the proposed rule is a prudent earnest of justice in
the face of the impossibility of enumerating, one by one,
all wrongs which cause damages. When it is reflected
that while codes of law and statutes have changed from
age to age, the conscience of man has remained fixed to
its ancient moorings, one cannot but feel that it is safe
and salutary to transmute, as far as may be, moral norms
into legal rules, thus imparting to every legal system
that enduring quality which ought to be one of its
superlative attributes. 45
Article 21 is intended to prevent a situation where a

person suffers damage or loss at the hands of another
but has no legal remedy because the situation is not
covered by any law. It seeks to prevent impunity on the
part of those who may want to take advantage of
loopholes in the law.
Furthermore, there is no belief of more baneful conse-

quence upon the social order than that a person may
with impunity cause damage to his fellow-men so long
as he does not break any law of the State, though he may
be defying the most sacred postulates of morality. What
is more, the victim loses faith in the ability of the govern-
4s Velayo v.Shell, G.R. No. L-7817, 31 October 1956, quoting "Report of

the Code Commission on the proposed Civil Code of the Philippines,"
pp. 40-41.
544 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASi-DEUCTS
ment to afford him protection or relief.46 (emphasis

supplied)
Based on the text of the provision, a person becomes

liable for damages if:
" he wilfully causes loss or injury to another;

* in a manner that is contrary to morals, good
customs or public policy
Thus, the text of the provision merely requires a plain-

tiff to prove the existence of intent and the manner by
which the defendant carries out such intent.
However, the Court has provided for three elements

for actions based on Article 21.
Article 21 deals with acts contra bonus mores, and has
the following elements: (1) There is an act which is legal;
(2) but which is contrary to morals, good custom, public
order, or public policy; (3) and it is done with intent to
injUre. 4y
Noticeably, it is the first element which is added by

the enumeration to the two elements directly found in
the text of the provision. The text of the provision
does not require that the act be legal. Certainly, if
legal acts performed in a manner contrary to morals
can be the basis for an award of damages, illegal acts
performed in the same manner should likewise give
rise to damages.
4Id.
4Abenson v. CA, G.RL No. 88694,11 January 1993.
Humi REAnoNs TORTSI 545
In Wassmer v. Velez, 4 Beatriz Wassmer and Francisco

Velez set their wedding on 4 September 1954, but on 2
September 1954, Velez wrote Wassmer a note, telling
her that they had to postpone the wedding. On 3
September 1954, he wrote her again, saying that he
was returning soon, but he did not. Wassmer sued
Velez for damages. A judgment was rendered in favor
of Wassmer.
Velez argued that the judgment was contrary to law

because the Civil Code did not authorize an action for
breach of promise to marry.
The Court admitted that under Hermosisima vs. Court

of Appeals,49 a mere breach of promise to marry was
not an actionable wrong. However, it said that "the
extent to which acts not contrary to law may be
perpetrated with impunity, was not limitless" because
of Article 21.
The Court found that on 23 August 1954, Wassmer

and Velez applied for a license to contract marriage,
the wedding was set for 4 September 1954 and
invitations were printed and distributed to relatives,
friends and acquaintances. In addition:
The bride-to-be's trousseau, party dresses and other
apparel for the important occasion were purchased.
Dresses for the maid of honor and the flower girl were
prepared. A matrimonial bed, with accessories, was
bought. Bridal showers were given and gifts received.
And then, with but two days before the wedding,
4
8 Wassmer v. Velez, G.R. No. L-20089, 26 December 1964.
49 Cited as L-14628, 30 September 1960.
546 1 ANYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASIDELICTS
defendant, who was then 28-year old, simply left a note

for plaintiff stating: "Will have to postpone wedding-
My mother opposes it ..." He enplaned to his home city
in Mindanao, and the next day, the day before the
wedding, he wired plaintiff: "Nothing changed rest
assured returning soon". But he never returned and was
never heard from again. (citations omitted)
The Court ruled that this was not a case of mere

breach of promise to marry. It added:
As stated, mere breach of promise to marry is not an

actionable wrong. But to formally set a wedding and go
through all the above-described preparation and publi-
city, only to walk out of it when the matrimony is about
to be solemnized, is quite different. This is palpably and
unjustifiably contrary to good customs, for which de-
fendant must be held answerable in damages in accor-
dance with Article 21 aforesaid. (emphasis supplied)
Thus, although Velez did not violate any law in aban-

doning his fiancee, he was ordered to pay damages
because he exhibited behavior that was contrary to
morals, good customs or public policy. It may also be
argued that the Court awarded damages because of
the public humiliation suffered by Wassmer and her
family.
2. Moral Seduction
In Tanjanco v. CA,50 Apolonio Tanjanco courted

Araceli Santos, both of adult age. In consideration of
Tanjanco's promises of marriage, Santos consented
and acceded to his pleas for carnal knowledge. From
' Tanjanco v. CA, G.R. No. L-18630,17 December 1966.

HuMAN RELATIONS ToRmS 547
July 1958 until about July 1959, Tanjanco, through his

protestations of love and promises of marriage, re-
gularly succeeded in having carnal access to Santos
except for a short period in December 1958 when
Tanjanco was out of the country. Santos conceived a
child. Due to her pregnancy and to avoid embarrass-
ment and social humiliation, Santos had to resign her
job. Santos sued Tanjanco for damages. The trial court
dismissed the complaint, but the appellate court
reversed the dismissal, ruling that the complaint did
state a cause of action based on Article 21.
As basis of its ruling, the appellate court relied upon

and quoted from the memorandum submitted by the
Code Commission to the Legislature in 1949 to sup-
port the original draft of the Civil Code:
But the Code Commission has gone farther than the

sphere of wrongs defined or determined by positive law.
Fully sensible that there are countless gaps in the
statutes, which leave so many victims of moral wrongs
helpless, even though they have actually suffered mate-
rial and moral injury, the Commission has deemed it
necessary, in the interest of justice, to incorporate in the
proposed Civil Code the following rule:
"ART. 23. Any person who wilfully causes loss or

injury to another in a manner that is contrary to mo-
rals, good customs or public policy shall compensate
the latter for damage."
An example will illustrate the purview of the foregoing

norm: 'A' seduces the nineteen-year old daughter of 'X'.
A promise of marriage either has not been made, or
cannot be proved. The girl becomes pregnant. Under the
present laws, there is no crime, as the girl is above
eighteen years of age. Neither can any civil action for
548 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON ToRTs AND QUAS-DELIcTS
breach of promise of marriage be filed. Therefore,

though the grievous moral wrong has been committed,
and though the girl and her family have suffered
incalculable moral damage, she and her parents cannot
bring any action for damages. But under the proposed
article, she and her parents would have such a right of
action.
The Court ruled that the appellate court overlooked

that the example set forth in the Code Commission's
memorandum refers to a tort upon a minor who has
been seduced.51 It said:
The essential feature is seduction, that in law is more
than mere sexual intercourse, or a breach of a promise of
marriage; it connotes essentially the idea of deceit,
enticement, superior power or abuse of confidence on
the part or the seducer to which the woman has yielded.
It has been ruled in the Buenaventuracase (supra)that -
To constitute seduction there must in all cases be some

sufficient promise or inducement and the woman
must yield because of the promise or other induce-
ment. If she consents merely from carnal lust and the
intercourse is from mutual desire, there is no
seduction. She must be induced to depart from the
path of virtue by the use of some species of arts,
persuasions and wiles, which are calculated to have
and do have that effect, and which result in her
ultimately submitting her person to the sexual
embraces of her seducer.
It is not dear from the ponencia that the appellate court considered the
acts of Tanjanco constitutes seduction. If it did, then the Court has
basis for rejecting its ruling. But if not, it is entirely possible that the
appellate court simply believed that the acts of Tanjanco fell within
Article 21 without necessarily qualifying it as seduction.
HUMAN RELATiONS ToRTs I 549
And in American Jurisprudence we find:
On the other hand, in an action by the woman, the

enticement, persuasion or deception is the essence of
the injury; and a mere proof of intercourse is
insufficient to warrant a recovery.
Accordingly, it is not seduction where the willing-

ness arises out of sexual desire or curiosity of the
female, and the defendant merely affords her the
needed opportunity for the commission of the act. It
has been emphasized that to allow a recovery in all
such cases would tend to the demoralization of the
female sex, and would be a reward for unchastity by
which a class of adventuresses would be swift to
profit (citations omitted, emphasis supplied)
Over and above the partisan allegations, the facts stand

out that for one whole year, from 1958 to 1959, the
plaintiff-appellee, a woman of adult age, maintained
intimate sexual relations with appellant, with repeated
acts of intercourse. Such conduct is incompatible with
the idea of seduction. Plainly there is here volun-
tariness and mutual passion; for had the appellant been
deceived, had she surrendered exclusively because of the
deceit, artful persuasions and wiles of the defendant, she
would not have again yielded to his embraces, much
less for one year, without exacting early fulfillment of
the alleged promises of marriage, and would have cut
short all sexual relations upon finding that defendant did
not intend to fulfill his promises. Hence, we conclude
that no case is made under Article 21 of the Civil Code,
and no other cause of action being alleged, no error was
committed by the Court of First Instance in dismissing
the complaint. (emphasis supplied)
It seems that the Court ruled out seduction because of

the length of time Santos allowed "carnal access"
without "exacting early fulfillment of the alleged pro-

mises of marriage." However, it may be said that there
was seduction the first time carnal knowledge was
obtained and perhaps up to the first few times this
was repeated. Certainly, the succeeding trysts over a
period of time should not serve to ratify the initial
deceit committed by the defendant. Otherwise, there
would be a perverse incentive on the part of the
seducer to increase the frequency of his "enticement"
to reduce the possibility of being charged for damages
under Article 21.
The other implication of this case is that if the case

involves seduction, it is not sufficient that the plaintiff
prove the elements of Article 21. The plaintiff must
also prove "deceit, enticement, superior power or
abuse of confidence" on the part of the defendant and
that the plaintiff did not succumb to "voluntariness
and mutual passion."
In Baksh v. CA, 52 Marilou Gonzales, 22 years old, filed

a complaint for damages against Gashem Shookat
Baksh, an Iranian citizen for the alleged violation of
their agreement to get married. She alleged that Baksh
courted and proposed to marry her. She accepted on
the condition that they would get married after the
end of the school semester. Baksh visited Marilou's
parents in Bahaga, Bugallon, Pangasinan to secure
their approval to the marriage. Subsequently, Baksh
forced her to live with him. Later Baksh's attitude
towards her started to change. He maltreated and
52 Baksh v. CA, G.R No. 97336,19 February 1993.

HUMAN RELATIONS TORTS I 551
threatened to kill her. Baksh repudiated their mar-

riage agreement, asked her not to live with him
anymore and married someone else. The lower court
applied Article 21 and awarded damages to Mariou.
The Court of Appeals affirmed the ruling.
Baksh argued that Article 21 was not applicable

because he had not committed any moral wrong or
injury or violated any good custom or public policy.
He also criticized the trial court for liberally invoking
Filipino customs, traditions and culture, and ignoring
the fact that since he was a foreigner, he was not con-
versant with such Filipino customs, traditions and
culture. He further argued that, as an Iranian Moslem,
he was not familiar with Catholic and Christian ways.
He stressed that even if he had made a promise to
marry, the subsequent failure to fulfill the same is
excusable or tolerable because of his Moslem up-
bringing. He alluded to the Muslim Code, which
purportedly allows a Muslim to take four wives. He
also argued that even if it were to be assumed arguendo
that he had professed his love and had also promised
to marry her,. such acts would not be actionable
because the mere breach of promise is not actionable.
As to the breach of promise to marry, the Court said:
The existing rule is that a breach of promise to marry per

se is not an actionable wrong. Congress deliberately
eliminated from the draft of the New Civil Code the
provisions that would have made it so. The reason
therefor is set forth in the report of the Senate Committee
on the Proposed Civil Code, from which we quote:
552 I ANALYSIS OF PHIUPPINE LAw AND JURISPRUDENCE ON TORTS AND QUASI-DEJCTS
The elimination of this chapter is proposed. That

breach of promise to marry is not actionable has been
definitely decided in the case of De Jesus vs. Syquia.
The history of breach of promise suits in the United
States and in England has shown that no other action
lends itself more readily to abuse by designing
women and unscrupulous men. It is this experience
which has led to the abolition of rights of action in the
so-called Heart Balm suits in many of the American
states ... (citations omitted)
Nevertheless, the Court pointed out that:

This notwithstanding, the said Code contains a
provision, Article 21, which is designed to expand the
concept of torts or quasi-delict in this jurisdiction by
granting adequate legal remedy for the untold number
of moral wrongs which is impossible for human
foresight to specifically enumerate and punish in the
statute books.5 3
The Court explained that Article 2176 is limited to

negligent acts or omissions and excludes the notion of
willfulness or intent,m while the Revised Penal Code
governs intentional malicious acts. Thus, the Court
believed that "[i]n between these opposite spectrums
are injurious acts which, in the absence of Article 21,
would have been beyond redress. Thus, Article 21 fills
that vacuum." The Court added:
It is even postulated that together with Articles 19 and 20

of the Civil Code, Article 21 has greatly broadened the
scope of the law on civil wrongs; it has become much
53 Citing PhilippineNational Bank vs. Court of Appeals, 83 SCRA 237 (1978).

54 See however Elcano v. Hill, G.R. No. L-24803, 26 May 1977 and
discussion on scope of quasi-delicts in Chapter I. Conceptual
Framework.
HUMAN RE.ATIONS Toms I 553
more supple and adaptable than the Anglo-American

law on torts.
The Court established a test:
where a man's promise to marry is in fact the proximate

cause of the acceptance of his love by a woman and his
representation to fulfill that promise thereafter becomes
the proximate cause of the giving of herself unto him in a
sexual congress, proof that he had, in reality, no inten-
tion of marrying her and that the promise was only a
subtle scheme or deceptive device to entice or inveigle
her to accept him and to obtain her consent to the
sexual act, could justify the award of damages pursuant
to Article 21 not because of such promise to marry but
because of the fraud and deceit behind it and the willful
injury to her honor and reputation which followed there-
after. It is essential, however, that such injury should
have been committed in a manner contrary to morals,
good customs or public policy. (emphasis supplied)
Thus, based on this Baksh test, if the promise of

marriage is the proximate cause of a promisee's con-
sent to sexual intercourse with the promissor, the
latter is liable for damages to the former if it is proven
that he had no intention to comply with the promise
at the time it was made. Thus, the plaintiff in such a
case must prove two things: (1) that the promise was
the proximate cause; and (2) lack of intent to fulfill the
promise on the part of the defendant.5 5
Theoretically, this objective test does not take into

account whether the plaintiff is a person of loose
0 Theoretically, the gender of the promissor and promissee should not

matter. However, it may be a problem if they are of the same gender,
considering the prohibition against same sex marriages.
morals or is known to have a sexual relationship with

more than one partner.
However, it is problematic to anchor such a cause of

action on Article 21. This is because under the said
article, the act complained need not be the proximate
cause of the injury. Article 21 is not a quasi-delict;
therefore, proximate causation is not a requirement.
Applying the test to this case, the Court said:

In the instant case, respondent Court found that it was
the petitioner's "fraudulent and deceptive protestations
of love for and promise to marry plaintiff that made her
surrender her virtue and womanhood to him and to live
with him on the honest and sincere belief that he would
keep said promise, and it was likewise these fraud and
deception on appellant's part that made plaintiff's
parents agree to their daughter's living-in with him
preparatory to their supposed marriage." In short, the
private respondent surrendered her virginity, the che-
rished possession of every single Filipina, not because of
lust but because of moral seduction-the kind illus-
trated by the Code Commission in its example earlier
adverted to. The petitioner could not be held liable for
criminal seduction punished under either Article 337 or
Article 338 of the Revised Penal Code because the
private respondent was above eighteen (18) years of age
at the time of the seduction. (emphasis supplied)
3. Public Humiliation
In Pe v. Pe,5 6 Alfonso Pe, a married man, courted

Lolita Pe, 24 years old and single. Alfonso, being the
adopted son of Pe Beco, a collateral relative of Lolita's
56 Pev. Pe, G.R. No. L-17396, 30 May 1962.

HuMN RELATIONS TORTS 1 555
father, became dose to the family of Lolita. Alfonso

frequented Lolita's house on the pretext that he
wanted her to teach him the rosary. The two event-
ually fell in love with each other and conducted
clandestine trysts. When the rumors of their relation-
ship reached Lolita's parents, Alfonso was forbidden
to see Lolita but the affair continued nonetheless.
Later, Lolita disappeared from the house of her
brothers and sisters who noticed that her clothes were
gone. They found a note crumpled inside her aparador
in a handwriting recognized to be that of Alfonso. The
note made reference to a meeting between the two on
the same date of her disappearance. Lolita's family
sued Alfonso for damages. The trial court dismissed
the complaint.
The Court held that the action was based on Article

21. It found that the claim of plaintiffs for damages
was based on the fact that Alfonso, being a married
man, carried on a love affair with Lolita, thereby
causing plaintiffs injury in a manner contrary to mo-
rals, good customs and public policy.
The Court noted that:
in spite of the fact that plaintiffs have clearly established

that an illicit affair was carried on between defendant
and Lolita which caused great damage to the name and
reputation of plaintiffs who are her parents, brothers and
sisters, the trial court considered their complaint not
actionable for the reason that they failed to prove that
defendant deliberately and in bad faith tried to win
Lolita's affection.
It quoted the trial court, which said:

In the absence of proof on this point, the court may not
presume that it was the defendant who deliberately
induced such relationship. We cannot be unmindful of
the uncertainties and sometimes inexplicable mysteries
of the human emotions. It is a possibility that the
defendant and Lolita simply fell in love with each other,
not only without any desire on their part, but also
against their better judgment and in full consciousness of
the disastrous consequences that such an affair would
naturally bring on both of them. This is specially so with
respect to Lolita, being an unmarried woman, falling in
love with defendant who is a married man.
The Court disagreed with this view. It said:

The circumstances under which defendant tried to win
Lolita's affection cannot lead to any other conclusion
than that it was he who, thru an ingenious scheme or
trickery, seduced the latter to the extent of making her
fall in love with him. This is shown by the fact that
defendant frequented the house of Lolita on the pretext
that he wanted her to teach him how to pray the rosary.
Because of the frequency of his visits to the latter's
family who was allowed free access because he was a
collateral relative and was considered as a member of
her family, the two eventually fell in love with each other
and conducted clandestine love affairs not only in Gasan
but in Boac where Lolita used to teach in a barrio school.
When the rumors about their illicit affair reached the
knowledge of her parents, defendant was forbidden
from going to their house and even from seeing Lolita.
Plaintiffs even filed deportation proceedings against
defendant who is a Chinese national. Nevertheless,
defendant continued his love affairs with Lolita until she
disappeared from the parental home. Indeed, no other
conclusion can be drawn from this chain of events than
that defendant not only deliberately, but through a
clever strategy, succeeded in winning the affection and

love of Lolita to the extent of having illicit relations with
her. The wrong he has caused her and her family is
indeed immeasurable considering the fact that he is a
married man. Verily, he has committed an injury to
Lolita's family in a manner contrary to morals, good
customs and public policy as contemplated in Article 21
of the new Civil Code.
It is interesting that in this case, the plaintiffs were

family members and not the person allegedly se-
duced. Therefore, the use of Article 21 was not
because there was moral seduction but because of the
betrayal of trust and shame inflicted on the family.
In Grand Union v. Espino,5 7 Jose Espino, a civil engi-

neer and an executive of Procter and Gamble
Philippines, Inc., together with his wife and their two
daughters, went to shop at the South Supermarket in
Makati. While his wife was shopping at the groceries
section, Espino browsed around the other parts of the
market. He found a cylindrical "rat tail" file, which he
wanted to buy, and placed it into the front breast
pocket of his shirt because he thought it would be lost
if placed in the cart. Espino paid for his wife's pur-
chases which amounted to P77, but he forgot to pay
for the fie. As he was leaving by the exit of the
supermarket on his way to his car, carrying two bags
of groceries and accompanied by his wife and two
daughter, Espino was approached by a uniformed
guard of the supermarket who said: "Excuse me,
[mister], I think you have something in your pocket
which you have not paid for" pointing to his left front
57 Grand Union v. Espino, G.R. No. L-48250, 28 December 1979.

558 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QuAsi-DEiCTS
breast pocket. Suddenly reminded of the file, Espino

apologized and turned back toward the cashier to pay
for the file. But the guard stopped him and led him
instead toward the rear of the supermarket. Espino
protested but the guard was firm in saying: "No,
[mister], please come with me. It is the procedure of
the supermarket to bring people that we apprehend to
the back of the supermarket." A crowd of customers
on their way into the supermarket saw Espino being
stopped and led by a uniformed guard toward the
rear of the supermarket. Espino acquiesced and
signaled to his wife and daughters to wait. Espino
was ushered into a cubicle and directed to a table. He
gave the file to the man seated at the desk. Espino
immediately explained the circumstances that led to
the finding of the file in his possession. The man at the
desk pulled out a sheet of paper and began to ask for
Espino's personal information. Espino was asked to
make a brief statement. The guard who had accosted
Espino took him back inside the supermarket in the
company of his wife. Espino and his wife were
directed across the main entrance to the shopping
area, down the line of check-out counters, to a desk
beside the first check-out counter. The guard
presented the incident report and the file to the
woman seated at the desk, Nelia Santos-Fandino.
Fandino read the report and addressing the guard,
she remarked: "Ano, nakaw na naman ito." Espino
explained and narrated the incident that led to the
finding of the file in his pocket, telling Fandino that he
was going to pay for the fie because he needed it. But
Fandino replied: "That is all they say, the people
whom we caught not paying for the goods say ...
HUMAN RELATIONS ToS 1559
They all intended to pay for the things that are found
to them." Espino objected and said that he was a
regular customer of the supermarket. Extracting a P5
bill from his pocket, Espino told Fandino that he was
paying for the file, which cost P3.85. Fandino reached
over and took the P5 bill from Espino with these
words: "We are fining you P5. That is your fine."
Espino was shocked. He and his wife objected
vigorously that he was not a common criminal, and
they wanted to get back the P5. But Fandino told them
that the money would be given as an incentive to the
guards who apprehend pilferers. People were milling
around them and staring at the Espino. He gave up
the discussion, drew a P50 bill and took back the file.
Fandino directed him to the nearest check-out counter
where he had to fall in line. The people who heard the
exchange of words between Fandino and Espino
continued to stare at him. At the trial, Espino
expressed his embarrassment and humiliation thus: "I
felt as though I wanted to disappear into a hole on the
ground."
Espino fied a complaint based on Article 21. The trial
court dismissed the complaint but the appellate court
reversed it.
The Court agreed with the holding of the appellate

court that "the evidence sustains the court's finding
that the plaintiff had absolutely no intention to steal
the fie." It said:
The totality of the facts and circumstances as found by
the Court of Appeals unerringly points to the conclusion
that private respondent did not intend to steal the file
560 I ANALYSIS OF PHIUPPINE LAW AND JURJSPRUDENCE ON ToRTS AND QUASI-DEUCTS
and that his act of picking up the file from the open shelf
was not criminal nor done with malice or criminal intent
for on the contrary, he took the item with the intention of
buying and paying for it.
This Court needs only to stress the following undisputed

facts which strongly and convincingly uphold the con-
clusion that private respondent was not "shoplifting."
Thus, the facts that private respondent after picking the
cylindrical "rat-tail" file costing P3.85 had placed it
inside his left front breast pocket with a good portion of
the item exposed to view and that he did not conceal it in
his person or hid it from sight as well as the fact that he
paid the purchases of his wife amounting to P77.00 at the
checkout counter of the Supermarket, showed that he
was not acting suspiciously or furtively. And the cir-
cumstance that he was with his family consisting of his
wife, Mrs. Caridad Jayme Espino, and their two daugh-
ters at the time negated any criminal intent on his part to
steal. Moreover, when private respondent was approach-
ed by the guard of the Supermarket as he was leaving by
the exit to his car who told him, "Excuse me, Mr., I think
you have something in your pocket which you have not
paid for," Espino immediately apologized and answered,
"I am sorry," which indicated his sincere apology or
regrets. He turned back towards the cashier to pay for
the file which proved his honesty, sincerity and good
faith in buying the item, and not to shoplift the same. His
brief statement on the sheet of paper called the Incident
Report where private respondent wrote the following:
'While talking to my aunt's maid with my wife, I put
this item in my shirt pocket. I forgot to check it out with
my wife's items," was an instant and contemporaneous
explanation of the incident.
Considering further the personal circumstances of the

private respondent, his education, position and character
showing that he is a graduate Mechanical Engineer from
U.P. Class 1950, employed as an executive of Proctor &
HuMAN RELATIONS TORTS 1 561
Gamble Phils., Inc., a corporate manager in charge of

motoring and warehousing therein; honorably dis-
charged from the Philippine Army in 1946; a Philippine
government pensionado of the United States for six
months; member of the Philippine Veterans Legion;
author of articles published in the Manila Sunday Times
and Philippines Free Press; member of the Knights of
Columbus, Council No. 3713; son of the late Jose Maria
Espino, retired Minister, Department of Foreign Affairs
at the Philippine Embassy, Washington, We are fully
convinced, as the trial and appellate courts were, that
private respondent did not intend to steal the article
costing P3.85. Nothing in the records intimates or hints
whatsoever that private respondent has had any police
record of any sort much less suspicion of stealing or
shoplifting.
The Court also agreed with the appellate court that:
(u)pon the facts and under the law, plaintiff has clearly
made the cause of action for damages against the
defendants. Defendants wilfully caused loss or injury
to plaintiff in a manner that was contrary to morals,
good customs or [plublic policy, making them amenable
to damages under Articles 19 and 21 in relation to Article
2219 of the Civil Code. (emphasis supplied)
The Court held that Espino was falsely accused of

shoplifting. It explained:
The Incident Report (Exhibit A) with the entries thereon

under Exhibit A-1 which says opposite the stenciled
word SUBJECT: 'Shoplifting," Exhibit A-3 which says
opposite the stenciled words Action Taken: "Released by
Mrs. Fandino after paying the item," Exhibit A-4 which
says opposite the stenciled words Remarks Noted: ' Grd.
Ebreo requested Grd. Paunil to apprehend subject shop-
lifter," established the opinion, judgment or thinking of
the management of petitioner's supermarket upon
private respondent's act of picking up the file. In plain

words, private respondent was regarded and pro-
nounced a shoplifter and had committed "shoplifting."
The Court also affirmed the appellate court's finding

that Fandino's remark: "Ano, nakaw na naman ito?"
made in the presence of Espino was offensive to his
dignity and defamatory to his character and honesty.
It added:
The admission of Fandino that she required private
respondent to pay a fine of P5.00 and did in fact take the
P5.00 bill of private respondent tendered by the latter to
pay for the file, as a fine which would be given as an
incentive to the guards who apprehend pilferers clearly
proved that Fandino branded private respondent as a
thief which was not right nor justified.
The testimony of the guard that management instructed

them to bring the suspected customers to the public area
for the people to see those kind of customers in order
that they may be embarrassed...; that management
wanted "the customers to be embarrassed in public so
that they will not repeat the stealing again" ... ; that the
management asked the guards "to bring these customers
to different cashiers in order that they will know that
they are pilferers" ... may indicate the manner or pattern
whereby a confirmed or self-confessed shoplifter is
treated by the Supermarket management but in the case
at bar, there is no showing that such procedure was
taken in the case of the private respondent who denied
strongly and vehemently the charge of shoplifting.
(emphasis supplied)
Thus, the Court held that the false accusation charged

against Espino after detaining and interrogating him
by the uniformed guards and the mode and manner
in which he was subjected-shouting at him, impo-
HuMAN RELATiONSToRTs I 563
sing upon him a fine, threatening to call the police and

in the presence and hearing of many people at the
Supermarket-brought and caused him humiliation
and embarrassment. This sufficiently rendered Grand
Union and Fandino liable for damages under Articles
19 and 21 in relation to Article 2219 of the Civil Code.
The Court ruled that Grand Union and Fandino
willfully caused loss or injury to Espino in a manner
that was contrary to morals, good customs or public
policy. It said that it is against morals, good customs
and public policy to humiliate, embarrass and
degrade the dignity of a person.
In Carpio v. Valmonte, 8 Michelle del Rosario and Jon

Sierra engaged Leonora Valmonte as wedding coor-
dinator for their wedding. When Valmonte arrived at
the suite at the Manila Hotel where the bride and her
family were billeted, several persons were already
there, including Soledad Carpio, an aunt of the bride
who was preparing to dress for the occasion. After
reporting to the bride, Valmonte went out of the suite,
carrying the items needed for the wedding rites and
the gifts from the principal sponsors. She proceeded
to the restaurant where the reception was to be held.
She paid the suppliers, gave the meal allowance to the
band, and went back to the suite. Upon entering the
suite, Valmonte noticed the people staring at her. It
was at this point that Carpio allegedly uttered the
following words to Valmonte: "Ikaw lang ang lumabas
ng kwarto, nasaan ang dala mong bag? Saan ka pumunta?
Ikaw lang ang lumabas ng kwarto, ikaw ang kumuha."
58
Carpio v. Valmonte, G.R. No. 151866, 9 September 2004.
564 I ANALYSIS OF PHIUPPINE LAw AND JURISPRUDENCE ON TORTS AND QuASI-DEUcTS
Carpio then ordered one of the ladies to search

Valmonte's bag. It turned out that after Valmonte left
the room to attend to her duties, Carpio allegedly
discovered that the pieces of jewelry which she placed
inside the comfort room in a paper bag were lost. The
jewelry pieces allegedly consisted of two diamond
rings, one set of diamond earrings, a bracelet and
necklace with a total value of about P1,000,000. The
hotel security was called to help with the search. The
bags and personal belongings of all the people inside
the room were searched. Valmonte was allegedly
bodily searched, interrogated and trailed by a security
guard throughout the evening. Later, police officers
arrived and interviewed all persons who had access to
the suite and fingerprinted them, including Valmonte.
During all this time, while Valmonte was being
interrogated by the police officers, Carpio kept on
saying the words "Siya lang ang lumabas ng kwarto."
Valmonte's car, which was parked at the hotel
premises, was also searched but the search yielded
nothing.
A few days after the incident, Carpio received a letter

from Valmonte, demanding a formal letter of apology,
which she wanted to be circulated to the newlyweds'
relatives and guests to redeem her smeared reputation
as a result of Carpio's imputations against her. Be-
cause Carpio did not respond to the letter, Valmonte
filed a suit for damages against her. The trial court
reversed it.
HuMAN REPTiONS ToRm I 565
The Court found sufficient evidence on record

tending to prove that Carpio's imputations against
Valmonte were made with malice and in bad faith.

In the sphere of our law on human relations, the victim
of a wrongful act or omission, whether done willfully or
negligently, is not left without any remedy or recourse to
obtain relief for the damage or injury he sustained.
Incorporated into our civil law are not only principles of
equity but also universal moral precepts which are
designed to indicate certain norms that spring from the
fountain of good conscience and which are meant to
serve as guides for human conduct. First of these
fundamental precepts is the principle commonly known
as "abuse of rights" under Article 19 of the Civil Code. It
provides that 'Every person must, in the exercise of his
rights and in the performance of his duties, act with
justice, give everyone his due and observe honesty and
good faith." To find the existence of an abuse of right, the
following elements must be present: (1) there is a legal
right or duty; (2) which is exercised in bad faith; (3) for
the sole intent or prejudicing or injuring another. When a
right is exercised in a manner which discards these
norms resulting in damage to another, a legal wrong is
committed for which the actor can be held accountable.
One is not allowed to exercise his right in a manner
which would cause unnecessary prejudice to another or
if he would thereby offend morals or good customs.
Thus, a person should be protected only when he acts in
the legitimate exercise of his right, that is when he acts
with prudence and good faith; but not when he acts with
negligence or abuse.
Complementing the principle of abuse of rights are the

provisions of Articles 20 and 21 of the Civil Code
xxx xxx xxx

566 1 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QuAsI-DELIcTs
The foregoing rules provide the legal bedrock for the

award of damages to a party who suffers damage when-
ever one commits an act in violation of some legal provi-
sion, or an act which though not constituting a trans-
gression of positive law, nevertheless violates certain
rudimentary rights of the party aggrieved. (citations
omitted)
In this case, Carpio's verbal reproach against

Valmonte was certainly uncalled for, considering that
by her own account, nobody knew that she brought
such kind and amount of jewelry inside the paper
bag. Thus, she had no right to attack Valmonte with
her innuendos, which were not merely inquisitive but
outright accusatory. It added:
By openly accusing respondent as the only person who

went out of the room before the loss of the jewelry in the
presence of all the guests therein, and ordering that she
be immediately bodily searched, petitioner virtually
branded respondent as the thief. True, petitioner had the
right to ascertain the identity of the malefactor, but to
malign respondent without an iota of proof that she
was the one who actually stole the jewelry is an act
which, by any standard or principle of law is imper-
missible. Petitioner had willfully caused injury to
respondent in a manner which is contrary to morals and
good customs. Her firmness and resolve to find her
missing jewelry cannot justify her acts toward res-
pondent. She did not act with justice and good faith for
apparently, she had no other purpose in mind but to
prejudice respondent. Certainly, petitioner transgressed
the provisions of Article 19 in relation to Article 21 for
which she should be held accountable. (emphasis
supplied)
Hu o TORTS 1567
RELATIONs
4. Malicious Prosecution
Article 21 is one of the provisions of the Civil Code

identified by the Court that may serve as the statutory
basis for a suit for damages by a person injured by
malicious prosecution. Because of clear similarities, it
may be said Philippine jurisprudence adopted
common law rules on malicious prosecution. In fact,
common law sources are routinely referred to in
Philippine cases.
a. Under Common Law
"Malicious prosecution" can be considered as a form

of misuse of legal procedure, the other forms being
"wrongful civil proceedings" and "abuse of process."5 9
In a malicious prosecution suit, the plaintiff must

prove four elements:60
" a criminal proceeding instituted or continued

by the defendant against the plaintiff;
" termination of the proceeding in favor of the
accused;
" absence of probable cause for the proceeding;
and
" "malice" or a primary purpose other than that
of bringing an offended to justice.
59 PROssE AND KEETON ON TORTS (FIFrH ED.) 870 (1994).

6 Id. at 871.
568 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QuAsi-DEucTs
i. Criminal Proceeding Instituted by the Defendant

Against the Plaintiff
The proceeding alleged to be maliciously instituted

must be criminal in character 6' and must have been
commenced. 62 The proceeding is deemed to have
commenced once there has been "official action"
which "sets the law in motion." Prosser and Keeton
adds:
The defendant may be liable either for initiating or for
continuing a criminal prosecution without probably
cause. But the defendant cannot be held responsible
unless the defendant takes some active part in instigating
or encouraging the prosecution. 63
ii. Termination of the Proceeding in Favor of the

Accused
The criminal action alleged to be maliciously insti-

tuted must have been terminated in favor of the
accused. This termination "must also reflect the merits
and not merely a procedural victory."6 4 The pro-
ceeding must be terminated in a manner that it cannot
be revived. 65
iii. Absence of Probable Cause for the Proceeding
Under common law, the requirement to prove the

absence of probable cause in the criminal proceeding
6lJi.
Q Id.
63 Id. at 872.
" Id. at 874.
65Id.
HuMAN REA'ONS TORTS I 569
is what makes malicious prosecution suits difficult to

sustain.66 It seems that under common law, probable
cause is not proven even if there is malice:
since it is the part of a good citizen to bring about the
prosecution of those who are reasonably suspected of
crime, and the addition of a personal motive should not
result in liability for performing a public obligation. The
existence of such "malice" does not create even an
inference that probable cause was lacking. 67
Probable cause is defined as "a reasonable ground for

belief in the guilt of the party charged." 68
Though the facts need not warrant a belief in guilt
beyond reasonable doubt, they must at least warrant a
grave suspicion in the mind of the prudent person.69
Thus, probable cause in this case "is judged by

appearances to the defendant at that time he initiates
prosecution, not by facts discovered later.' 70
iv. "Malice" or a Primary Purpose Other Than that

of Bringing an Offended to Justice
There is malice if the defendant "acted chiefly to give

vent of motives of ill wiIl'n or "where his primary
6Id. at 876.
67Id.
68 Id. citing Slade v. City of Phoenix, 1975, 112 Ariz. 298, 541 P.2d 550;
Colegrove v. City of Corning,1976, 54 A.D. 2d 1093, 388 N.Y.S.2d 964.
69 Id. citing Birwood Paper Co. V. Damsky, 1969, 285 Ala. 127, 229 So.2d
514.
70 Id. citing Smith v. Kith, 1893, 62 Conn. 515, 26 A. 1059; Galloway v.
Stewart, 1874, 49 Ind. 156; Orso v. City and County of Honolulu, 1975, 56
Hawaii 241,534 P.2d 489.
71 Id. at 883, citing Smith v. Kidd, Ky, 1952, 246 S.W.2d 155; Meyer v.
purpose was merely something other than the social

one of bringing an offender to justice."72 Malice is
present if the "defendant uses the prosecution of
obtaining any private advantage."7 3 But "any purpose
legitimate in itself will not be 'malice' if it is clearly
secondary and incidental to the disinterested one of
convicting the guilty."74
b. Under Philippine Law
i. Definition
Malicious prosecution, sometimes referred to as

denunciafalsa75 has been defined as:
persecution through the misuse or abuse of judicial
processes; or the institution and pursuit of legal pro-
ceedings for the purpose of harassing, annoying, vexing
or injuring an innocent person. 76
Ewald, 1974, 66 Wis.2d 168, 224 N.W.2d 419; Mondrow v. Selwyn, 1980,
172 N.J. Super. 379,412 A.2d 447.
72 Id. citing Nesmith v. Alford, 5th Cir. 1963, 318 F.2d 859.
73 Id., citing Creelman v. Sveening, 1969,1 Wn.App 402,461 P.2 557.
74 Id., citing Thompson v. Beacon Valley Rubber Co., 1888, 56 Conn. 493, 16
A. 554; Kelsea v. Swett, 1919, 234 Mass. 79, 125 N.E. 143; Wenger v.
Philips,1900,195 Pa. 214,45 A. 927; Williams v. Kyes, 1896,9 Colo. App
220, 47 P. 839.
75 Equitable v. LAC, G.R. No. 66070, 31 October 1984; Madera v. Heirs of
Lopez, G.R. No. L-37105, 10 February 1981. In Ventura v. Bernabe, G.R
No. L-26760, 30 April 1971, the Court pointed out, however, that
"Article 326 of the Spanish Penal Code 'does not appear in the
Revised Penal Code, which contains no offense denominated
'acusaciono denunciafalsa' or its equivalent'
76 Villanueva v. United Coconut Planters Bank, G.R. No. 138291, 7 March
2000.
Humm RELUoNsTors 1 571
But it has more often been defined as:
An action for damages brought by one against whom a

criminal prosecution, civil suit, or other legal proceeding
has been instituted maliciously and without probable
cause, after the termination of such prosecution, suit, or
other proceeding in favor of the defendant therein. 7
(citations omitted)
It is noticeable that this definition does not limit an

action for damages for malicious prosecution on the
basis of a prior criminal action only. This definition
includes a "civil suit, or other legal proceeding ins-
tituted maliciously" as possible basis for such a suit.
Although the term itself suggests that malicious

prosecution refers to unfounded criminal actions,78
the Court has noted that "[tihe term has been
expanded to include unfounded civil suits instituted
just to vex and humiliate the defendant despite the
absence of a cause of action or probable cause."7 9
The Court has also explained that "the foundation of

an action for malicious prosecution is an original
77Magbanua v. Junsay, G.R. No. 132659, 12 February 2007; Yasofia v.

Jovencio, G.R. No. 156339, 6 October 2004; Drilon v. CA, G.R. No.
107019 20 March 1997, citing "Moreno, Philippine Legal Dictionary,
3rd ed., 1988, p. 25."
7 Equitable v. LAC, G.R. No. 66070,31 October 1984.
79 Magbanuav. Junsay, G.R. No. 132659,12 February 2007; Bayani v. Panay
Electric, G.R No. 139680, 12 April 2000; Ponce v. Legaspi, G.R. No.
79184, 6 May 1992; Equitable v. LAC, G.R. No. 66070, 31 October 1984.
See also Spouses Chua v. CA, G.R. No. 112660, 14 March 1995 where the
Court said "the term has been expanded to include baseless civil suits
filed without a cause of action or probable cause and which are meant
to harass or humiliate a defendant"
572 I ANALYSIS OF PHIUPPINE LAW AND JUPJSPRUDENCE ON TORTS AND QUASI-DELICTS
proceeding, judicial in character." s As such, the

Court has ruled that "[a] disbarment proceeding is
without doubt, judicial in character and therefore may
be the basis for a subsequent action for malicious
prosecution." 81
It could also be said that the as early as 1915, the

Court had already considered an unfounded civil suit
as a possible basis for the award of damages. In
Buchanan v. Esteban,82 after enumerating the elements
of malicious prosecution, the Court said "there is no
distinction between actions for criminal prosecutions
and civil suits. Both classes require substantially the
same essentials." 83
The Court has also pointed out:
In malicious prosecution, even if the act complained of

does not constitute a crime, there can still be probable
cause behind the commission of a civil wrong. The
gravamen of malicious prosecution is not the filing of a
complaint based on the wrong provision of law, but the
deliberate initiation of an action with the knowledge that
the charges were false and groundless.84
Article 2219(8) specifically provides that malicious

prosecution is one of the cases wherein moral da-
mages may be awarded.
8
o Ponce v. Legaspi, G.R. No. 79184, 6 May 1992. But the Court in this case
cites common law cases.
81 d.
82
Buchanan v. Esteban, G.R. No. 10402,30 November 1915.
83Id.
84 Villanueva v. United Coconut Planters Bank, G.R. No. 138291, 7 March
2000.
HUMAN RELATIONS TORTS 573
But the statutory basis for the elements of malicious

prosecution is not as clear. The Court has noted "the
absence of any specific provision on malicious
prosecution in the chapter on human relations" of the
Civil Code.85
In a number of cases, 86 the Court indicated that the

statutory bases for a civil action for damages for
malicious prosecution are Articles 19, 20, 21, 26, 29, 32,
33, 35, 2217 and 2219(8).
In one case, the list was shortened to Articles 19, 21,

29, and 35.87
In some cases, the Court identifies only Articles 21

and 2176 of the Civil Code as statutory bases of
malicious prosecution. 88 While Article 21 is a viable
option, Article 2176 is not. As discussed earlier in this
volume, 89 it is more reasonable to consider Article
2176 as covering acts or omissions committed via
negligence. Considering the elements of malicious
prosecution, it is impossible to commit it negligently.
85
Ventura v. Bernabe, G.R. No. L-26760, 30 April 1971.
86 Drilon v. CA, G.R. No. 107019, 20 March 1997; Albenson Enterprises
Corp. v. Court of Appeals, G.R. No. 88694, 11 January 1993; Ponce v.
Legaspi, G.R. No. 79184,6 May 1992.
87
Bayani v. Panay Electric,G.R. No. 139680,12 April 2000.
8
Lagman v. JAC, G.R. No. 72281, 28 October 1988; Madera v. Heirs of
Lopez, G.R. No. L-37105, 10 February 1981; Ventura v. Bernabe, G.R. No.
L-26760, 30 April 1971.
89
See Chapter I, The Conceptual Framework.
ii. Elements
In a number of cases, the elements of malicious

prosecution were indicated as follows: 90
" the fact of the prosecution or that the prose-

cution did occur and that the defendant was
himself the prosecutor or that he instigated its
commencement;
" that the action finally terminated with an
acquittal; 91
" that in bringing the action, the prosecutor acted
without probable cause; and
" that the prosecutor was actuated or impelled
by legal malice, that is by improper or sinister
motive.
Simply put, the elements of malicious prosecution

would be: (1) prosecution of the plaintiff by the
defendant; (2) termination of prosecution in acquittal;
(3) absence of probable cause and (4) prosecution
motivated by malice.
9
o Magbanua v. Junsay, G.R. No. 132659, 12 February 2007; Villanueva v.
United Coconut PlantersBank, G.R. No. 138291, 7 March 2000; Drilon v.
CA, G.R. No. 107019,20 March 1997; Ponce v. Legaspi, G.R. No. 79184,6
May 1992; Lao v. Court ofAppeals, G.R. No. 82808,11 July 1991; Lagman
v. LAC, G.R No. 72281, 28 October 1988; Madera v. Heirs of Lopez, G.R.
No. L-37105, 10 February 1981; Buchanan v. Esteban, G.R. No. 10402, 30
November 1915.
91
This second element is often merged with the first but it is strictly
speaking a separate element The issue regarding the identity of the
prosecutor is distinct from the issue regarding the termination via
acquittal.
HuMAN RELA ONsToRm 575
The Court in a few cases 92 would indicate only two

elements for malicious prosecution: (1) malice and (2)
absence of probable cause. But these cases are only a
minority and a greater majority of cases would list the
four elements listed earlier.
As regards the first element or that the defendant was

himself the prosecutor or that he instigated its
commencement, the Court has ruled that-
The mere act of submitting a case to the authorities for

prosecution does not make one liable for malicious pro-
secution for generally, it is the government or repre-
sentative of the State that takes charge of the prosecution
of the offense.9
With regard to the second element or that, the action

must terminate with an acquittal, the Court has ruled
that there was malicious prosecution even if the case
merely reached the level of the fiscal. 94 In Manila Gas
v. CA, 95 the Court found that the filing of a complaint
for Qualified Theft was malicious prosecution even if
that complaint was dismissed by the investigating
fiscal. The Court said that:
The fact that the complaint for qualified theft was
dismissed by the Pasay City fiscal is no consolation. The
92 Yasofia v. Jovencio, G.R. No. 156339, 6 October 2004; China Banking v.

CA, G.R. No. 94182,28 March 1994.
93 Lagman v. AC, G.R. No. 72281, 28 October 1988.
94
Yasofia v. Jovencio, G.R. No. 156339, 6 October 2004; Manila Gas v. CA,
G.R. No. L-44190, 30 October 1980.
95 Manila Gas v. CA, G.R No. L-44190, 30 October 1980.
576 I ANALYSIS OF PHIUPPINE LAW AND JURSPRUDENCE ON TORTS AND QUASI-DELiCTS
damage had been done. Necessarily indemnification had

to be made.9
But in Que v. IAC, 97 the Court ruled:

We agree with the petitioner that the mere dismissal of
the criminal complaint by the fiscal's office did not create
a cause of action because the proceedings therein did not
involve an exhaustive examination of the elements of
malicious prosecution. What was inquired into in that
preliminary investigation was whether or not there was
a prima facie showing of estafa that would justify the
filing of the corresponding information. Nowhere in the
fiscal's investigation report is there any statement
imputing malice to the complainant nor could it have as
this was not the matter in issue.98
On the other hand in Bayani v. Panay Electric,99 the

Court ruled that the element of final termination of
the action resulting in an acquittal was absent at the
time the action for damages was filed because:
The records show that petitioner's action for injunction
and damages was filed on October 10, 1996, whereas the
Secretary of Justice dismissed with finality PECO's
criminal complaints against herein petitioner only on
March 4, 1998. Hence, Civil Case No. 23276 was pre-
maturely filed.
This ruling implies that a dismissal at the level of the

Secretary of Justice would constitute an acquittal for
purposes of malicious prosecution.
96Id.
97 Que v. AC, G.R. No. 66865,13 January 1989.
98Id.
99 Bayani v. PanayElectric, G.R No. 139680,12 April 2000.
HuMAN RELATONS TORTSI 577
For purposes of malicious prosecution, probable cause

has been defined as:
the existence of such facts and circumstances as would
excite the belief, in a reasonable mind, acting on the facts
within the knowledge of the prosecutor, that the person
charged was guilty of the crime for which he was
prosecuted. 100
The Court has ruled that "[a]n acquittal, by itself, does

not necessarily prove the absence of probable cause in
the criminal information or complaint."'1 1
The Court has also ruled that:
The presence of probable cause signifies, as a legal

consequence, the absence of malice. 0 2
But in Buchananv. Esteban,1°3 the Court ruled:
But malice alone does not make one liable for malicious
prosecution, where probable cause is shown, even where
it appears that the suit was brought for the mere purpose
of vexing, harassing and injuring his adversary. In other
words, malice and want of probable cause must both
exist in order to justify the action.
100 Albenson v. CA G.R. No. 88694, 11 January 1993; Ponce v. Legaspi, G.R.
No. 79184, 6 May 1992; Buchanan v. Esteban, G.R. No. 10402, 30
November 1915.
101Villanueva v. United Coconut Planters Bank, G.R. No. 138291, 7 March
2000.
Corp. v. Court of Appeals, G.R. No. 88694, 11 January 1993; Que v. LAC,
G.R. No. 66865,13 January 1989.
103 Buchananv. Esteban, G.R. No. 10402,30 November 1915.
This means that it is possible that there was malice

even though there was probable cause.
The Court has also ruled that in malicious pro-

secution cases, "malice and lack of probable cause
must both be clearly shown to justify an award of
10 4
damages based on malicious prosecution."
Regarding the element of malice, the Court has ruled

that:
The gravamen of malicious prosecution is not the filing
of a complaint based on the wrong provision of law, but
the deliberate initiation of an action with the knowledge
that the charges were false and groundless.105
Jurisprudence further provides that:
To constitute malicious prosecution, there must be proof

that the prosecution was prompted by a sinister design
to vex and humiliate a person that it was initiated
deliberately by the defendant knowing that his charges
were false and groundless. Concededly, the mere act of
submitting a case to the authorities for prosecution does
106
not make one liable for malicious prosecution.
The Court has clarified that the fact that the fiscal
filed the information does not preclude the presence
of malice. 107 It said:
104 Spouses Chua v. CA, G.R. No. 112660,14 March 1995.

105 Magbanua v. Junsay, G.R. No. 132659, 12 February 2007; Villanueva v.
United Coconut PlantersBank G.R. No. 138291, 7 March 2000.
10
Corp. v. Court of Appeals, G.R. No. 88694, 11 January 1993; Que v. AC,
G.R. No. 66865,13 January 1989; Manila Gas v. CA, G.R. No. L-44190,
107
30 October 1980;
Ventura v. Bernabe,G.R No. L-26760, 30 April 1971.
HuMAN RELATIONS TORTS I 579
such participation of the fiscal is not decisive and that

malice may still be shown, the holding of a preliminary
investigation and the finding of probable cause by the
fiscal notwithstanding. The same may be said of cases
where preliminary investigations are conducted by
judges. The determination of the issue of malice must
always be made to rest on all the attendant circums-
tances, including the possibility of the fiscal or judge
being somehow misled by the accuser's evidence. No
doubt, the very purpose of preliminary investigations is
to avoid baseless and malicious prosecutions, still,
whether or not in a particular case such an objective has
been duly pursued is a matter of proof. Just as it is bad
to encourage the indiscriminate filing of actions for
damages by accused persons after they have been
acquitted, whether correctly or incorrectly, a blanket
clearance of all who may be minded to charge others
with offenses, fancied or otherwise, without any chance
of the aggrieved parties in the appropriate cases of false
accusation to obtain relief, is in Our opinion short of
being good law. 108
In other words, "the complainant cannot escape

liability merely on the ground that it was the fiscal
who prosecuted the proceedings in court.' 09
However, the Court has also ruled that the fact that
the fiscal filed a criminal case "goes to show that there
was probable cause"'110 on the part of the person who
submitted the case to the authorities.
108
Id.
1o9 Villanueva v. United Coconut Planters Bank, G.R. No. 138291, 7 March
2000.
110 Lagman v. IAC, G.R. No. 72281,28 October 1988.
580 1 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QuASI-DEucTs
In Que v. LAC, 11' Antonio Nicolas ordered canvass

strollers from Magtanggol Que, which were delivered
to and accepted by Nicolas, who issued five checks to
Que. The total face value of the checks was P7,600.
Payment thereof was subsequently stopped by
Nicolas, and Que was unable to encash them. Nicolas
explained later that he had ordered the "stop pay-
ment" because of defects in the articles sold which
despite his requests, Que had not corrected. For his
part, Que argued that the allegedly defective articles
were never returned to him until after he had filed the
charge for Estafa and that Nicolas had earlier merely
ignored his complaints about the dishonored checks.
Que filed a complaint for Estafa against Nicolas in the

office of the city fiscal of Caloocan City for issuance of
several checks which were subsequently dishonored
when presented for encashment. The charge was dis-
missed for lack of merit. The investigating fiscal held
that the controversy was an accounting matter that it
did not necessarily involve deceit on the part of
Nicolas. Subsequently, Nicolas fied his own com-
plaint for damages against Que for what he claimed
was his malicious prosecution by the latter. It was
now Que's turn to claim harassment. In his counter-
claim, he averred that Nicolas had maliciously fied
the complaint in Bulacan although he was a resident
of Caloocan City and that Nicolas was really indebted
to him in any case.
111 Que v. AC, G.R. No. 66865,13 January 1989.

HuMAN RELATIONSTORTS I 581
The lower court originally ruled in favor of Nicolas

based on the finding that Que had acted maliciously
in filing the Estafa charge and in alleging that the
Nicolas had issued the dishonored checks with deceit
aforethought. But Judge Fernandez, who took over
from Judge Puno, upon a second motion for recon-
sideration, issued an amended decision reversing the
original and awarding damages in favor of Que.
According to Judge Fernandez:
In awarding plaintiff damages and attorney's fees in the

total amount of P80,900.00, by way of moral, nominal
and exemplary damages and attorney's fees, the Court
overlooked the ruling that failure in suit is not per se an
actionable wrong; that adverse result of an action does
not per se make the act wrongful and subject the actor
to payment of moral damages, for the law could not
have meant to impose a penalty of a right to litigate, the
right so precious that moral damages may be charged to
those who exercise it erroneously; that reliance in good
faith to counsel's advice given after a full and fair
statement of all the facts to the attorney, does not
render the party liable for damages and that it is
immaterial that the attorney's advice is unsound or
erroneous; and that where there is no clear showing of
malice on the part of petitioner in filing the action, the
worries and anxiety suffered by respondent are usually
caused to the party haled into a court as a defendant, and
there is no sufficient justification for awarding of
damages.
The resolution of dismissal by the Fiscal's office of

Caloocan City is not tantamount to a decision in the
sense that the proceedings had therein were merely
summary in nature as the title of the proceeding 'prelim-
inary investigation' so connotes. As a preliminary pro-
ceeding, it lacks the thoroughness and rigidity of an
582 I ANALYSIS oF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DELICTS
ordinary trial. The investigating fiscal was merely called

upon to determine at first instance whether or not there
exists a prima facie case to justify the filing of an
information in court. (emphasis supplied)
The appellate court annulled the amended decision

and reinstated the original decision on procedural
grounds.
The Court explained that as early as Buchanan v.

Esteban, the Court had stressed that "one cannot be
held liable in damages for maliciously instituting a
prosecution where he acted with probable cause."
Probable cause is the existence of such facts and
circumstances as would excite the belief, in a reasonable
mind, acting on the facts within the knowledge of the
prosecutor, that the person charged was guilty of the
crime for which he was prosecuted. The general rule is
well settled that one cannot be held liable in damages
for maliciously instituting a prosecution where he
acted with probable cause. In other words, a suit will lie
only in cases where a legal prosecution has been carried
on without probable cause. And the reason for the rule
as stated by Blackstone, is that it would be a very great
discouragement to public justice if prosecutors, who had
a tolerable ground of suspicion, were liable to be sued at
law when their indictments miscarried.
xxx xxx xxx
Under the Spanish Law, the element of probable cause

was not treated separately from that of malice, as under
the American Law. When a complaint was laid and there
was probable cause to believe that the person charged
had committed the acts complained of, although, as a
matter of fact, he had not, the complainant was fully
protected, but not so much on the theory of probable
HuMAN RELATiONS TomS I 583
cause as on the ground that, under such circumstances,

there was no intent to accuse falsely. If the charge,
although false, was made with an honest belief in its
truth and justice, and there were reasonable grounds
on which such a belief could be founded, the
accusation could not be held to have been false in the
legal sense." (emphasis supplied)
The Court found that it was indisputable that the five

checks issued by Nicolas had been dishonored and
that the drawer had failed to make good on them
despite the protests of the Que. Nicolas had merely
ignored him. It was also a matter of record that the
checks were post-dated, which made Que assume that
at the time they were issued, Nicolas did not really
have sufficient funds for their encashment. It could be,
as the original decision assumed, that the checks were
in the nature of promissory notes, to be made good
when the articles delivered met with the drawer's
approval. However, considering that the checks could
not be encashed and the supposedly defective goods
had not been returned by the drawer, Que had reason
to believe when he filed his complaint that the buyer
had intended to deceive him at the outset.
The Court found that Que was not motivated by ill

feeling but only by an anxiety to protect his rights
when he filed the criminal complaint for Estafa with
the fiscal's office. If he averred that Nicolas had no
funds in the bank when he issued the postdated
checks and intended to cheat the payee, it was
because the circumstances of the case as Que saw
them led him to this conclusion.
The Court held that even if the fiscal found that no

deceit was involved and that Que's claim was un-
founded, the mistaken charge was nonetheless, in the
legal sense, not malicious.
The Court reiterated the rule that:

To constitute malicious prosecution, there must be proof
that the prosecution was prompted by a sinister design
to vex and humiliate a person that it was initiated
deliberately by the defendant knowing that his charges
were false and groundless. Concededly, the mere act of
not make one liable for malicious prosecution.
It added:
We agree with the petitioner that the mere dismissal of
the criminal complaint by the fiscal's office did not
create a cause of action because the proceedings therein
did not involve an exhaustive examination of the
elements of malicious prosecution. What was inquired
into in that preliminary investigation was whether or not
there was a prima facie showing of estafa that would
justify the filing of the corresponding information. No-
where in the fiscal's investigation report is there any
statement imputing malice to the complainant nor could
it have as this was not the matter in issue. (emphasis
supplied)
The Court found that the criminal complaint filed by

Que was not a mere ploy to enforce the payment of
his account by Nicolas but a genuine protest over the
abrupt and suspicious order to stop the encashment of
the checks issued to him by Nicolas.
HumAN RELAllONs Tom I 585
In Drilon v. CA," 2 General Renato de Villa requested

the Department of Justice to order the investigation of
several individuals, including Adaza, for their alleged
participation in the failed December 1989 coup d'etat.
The letter-complaint was based on the affidavit of
officers of the armed forces. Gen. de Villa's letter-
complaint with its annexes was referred for pre-
liminary inquiry to the Special Composite Team of
Prosecutors. Finding sufficient basis to continue the
inquiry, Trampe, the Team Leader, issued a subpoena
to the individuals named in the letter-complaint,
Adaza included, and assigned the case for preli-
minary investigation to a panel of investigators. The
panel ruled that there was probable cause to hold
respondents for trial for the crime of "Rebellion With
Murder And Frustrated Murder." An information was
filed against Adaza for the crime of Rebellion with
Murder and Frustrated Murder. Adaza filed a
complaint for damages, charging the Secretary of
Justice Drilon and other officials ("Petitioners") with
engaging in a deliberate, willful and malicious
experimentation by filing against him a charge of
Rebellion complexed with Murder and Frustrated
Murder when Petitioners, according to Adaza, were
fully aware of the non-existence of such crime in the
statute books. The Petitioners filed a Motion to
Dismiss Adaza's complaint on the ground that said
complaint stated no actionable wrong constituting a
valid cause of action against Petitioners. The lower
courts denied the Petitioners' motion to dismiss.
112 Drion v. CA, G.R No. 107019, 20 March 1997.

Adaza argued that his claim before the trial court was
merely a suit for damages based on tort by reason of
Petitioners' various malfeasance, misfeasance and
nonfeasance in office, as well as for violation by the
Petitioners of Section 3(e) of Republic Act No. 3019
and was not a suit for malicious prosecution.
The Court found the complaint filed by Adaza was

one for malicious prosecution.
The Court explained the definition, statutory basis

and elements of malicious prosecution:
The term malicious prosecution has been defined in
various ways. In American jurisdiction, it is defined as:
One begun in malice without probable cause to

believe the charges can be sustained. Instituted with
intention of injuring defendant and without probable
cause, and which terminates in favor of the person
prosecuted. For this injury an action on the case lies,
called the action of malicious prosecution.
In Philippine jurisdiction, it has been defined as:
"An action for damages brought by one against whom

a criminal prosecution, civil suit, or other legal pro-
ceeding has been instituted maliciously and without
probable cause, after the termination of such prose-
cution, suit, or other proceeding in favor of the
defendant therein. The gist of the action is the putting
of legal process in force, regularly, for the mere
purpose of vexation or injury.
The statutory basis for a civil action for damages for

malicious prosecution are found in the provisions of the
New Civil Code on Human Relations and on damages
particularly Articles 19, 20, 21, 26, 29, 32, 33, 35, 2217 and
2219(8). To constitute malicious prosecution, however,
HUMAN RELATIONS ToRTS I 587
there must be proof that the prosecution was prompted

by a sinister design to vex and humiliate a person, and
that it was initiated deliberately by the defendant
knowing that his charges were false and groundless.
Concededly, the mere act of submitting a case to the
authorities for prosecution does not make one liable for
malicious prosecution. Thus, in order for a malicious
prosecution suit to prosper, the plaintiff must prove
three (3) elements: (1) the fact of the prosecution and the
further fact that the defendant was himself the prose-
cutor and that the action finally terminated with an
acquittal; (2) that in bringing the action, the prosecutor
acted without probable cause; and (3) that the prosecutor
was actuated or impelled by legal malice, that is by
improper or sinister motive. All these requisites must
concur. (citations omitted)
The Court found that none of the requisites for a

malicious prosecution suit have been alleged, thus
rendering the complaint dismissible on the ground of
failure to state a cause of action. The Court added:
There is nothing in the records which shows, and the

complaint does not allege, that Criminal Case No. Q-90-
11855, filed by the petitioners against respondent Adaza
for Rebellion with Murder and Frustrated Murder, has
been finally terminated and therein accused Adaza acquitted
of the charge. Not even Adaza himself, thru counsel,
makes any positive asseveration on this aspect that
would establish his acquittal. Insofar as Criminal Case
No. Q-90-11855 is concerned, what appears clear from
the records only is that respondent has been discharged
on a writ of habeas corpus and granted bail. This is not
however, considered the termination of the action
contemplated under Philippine jurisdiction to warrant
the institution of a malicious prosecution suit against
those responsible for the filing of the information
against him.
The complaint likewise does not make any allegation

that the prosecution acted without probable cause in filing
the criminal information dated April 18, 1990 for
rebellion with murder and frustrated murder. Ele-
mentarily defined, probable cause is the existence of
such facts and circumstances as would excite the belief,
in a reasonable mind, acting on the facts within the
knowledge of the prosecutor, that the person charged
was guilty of the crime for which he was prosecuted. It is
well-settled that one cannot be held liable for maliciously
instituting a prosecution where one has acted with
probable cause. Elsewise stated, a suit for malicious
prosecution will lie only in cases where a legal pro-
secution has been carried on without probable cause. The
reason for this rule is that it would be a very great
discouragement to public justice, if prosecutors, who had
tolerable ground of suspicion, were liable to be sued at
law when their indictment miscarried.
In the case under consideration, the decision of the

Special Team of Prosecutors to file the information for
rebellion with murder and frustrated murder against
respondent Adaza, among others, cannot be dismissed
as the mere product of whim or caprice on the part of the
prosecutors who conducted the preliminary investi-
gation. Said decision was fully justified in an eighteen
(18)-page Resolution dated April 17, 1990. (citations
In Magbanua v. Junsay,n 3 Rosemarie Magbanua, who

worked as a housemaid in the residence of Pilar
Junsay, was charged as a co-accused with the crime of
Robbery before the trial court. The case for the
prosecution relied on an alleged confession made by
Rosemarie, admitting her participation in the crime of
Robbery. The defense contested the admissibility of
113 Magbanua v. Junsay,G.R. No. 132659,12 February 2007.

HUMAN REaONS TORTS I 589
the confession, and averred that the same was made

under duress. The trial court acquitted her on the
basis of insufficiency of evidence. It said:
this Court finds the evidence for the prosecution not only
insufficient to prove the guilt of the accused beyond
reasonable doubt but even insufficient to establish a
prima facie case against her for having participated in
the robbery subject of the above entitled case and
therefore ACQUITS accused on the ground of insuffi-
ciency of evidence. (emphasis supplied)
Thereafter, Rosemarie filed a complaint for damages

against Pilar and members of the police force, alleging
that by reason of respondents' false, malicious, and
illegal actuations in filing a Criminal Case for Rob-
bery, the latter suffered untold pain, shame, humi-
liation, worry, and mental anguish. The trial court
dismissed the complaint and was affirmed by the
appellate court.
The Court explained that in this jurisdiction, the term

"malicious prosecution" has been defined as:
an action for damages brought by one against whom a
criminal prosecution, civil suit, or other legal proceeding
has been instituted maliciously and without probable
cause, after the termination of such prosecution, suit, or
other proceeding in favor of the defendant therein.
It also pointed out that, while generally associated

with unfounded criminal actions, the term has been
expanded to include unfounded civil suits instituted
just to vex and humiliate the defendant despite the
absence of a cause of action or probable cause.
It further explained the elements and the gravamen of

the offense:
This Court has drawn the four elements that must be
shown to concur to recover damages for malicious
prosecution. Therefore, for a malicious prosecution suit
to prosper, the plaintiff must prove the following: (1) the
prosecution did occur, and the defendant was himself
the prosecutor or that he instigated its commencement;
(2) the criminal action finally ended with an acquittal; (3)
in bringing the action, the prosecutor acted without
probable cause; and (4) the prosecution was impelled by
legal malice - an improper or a sinister motive. The
gravamen of malicious prosecution is not the filing of a
complaint based on the wrong provision of law, but the
deliberate initiation of an action with the knowledge that
the charges were false and groundless. (citations
omitted)
In this case, the Court found that the first and second
elements were present. The prosecution of Rosemarie
for the Crime of Robbery did occur, and Pilar, Ibarra
and Juanito instigated its commencement. Further-
more, the trial court rendered a Decision acquitting
Rosemarie Magbanua on the ground of insufficiency
of evidence.
On the question of probable cause, the Court

reiterated the rule that for purposes of malicious
prosecution:
"probable cause" means "such facts and circumstances as
would excite the belief, in a reasonable mind, acting on
the facts within the knowledge of the prosecutor, that the
person charged was guilty of the crime for which he was
prosecuted." It is merely based on opinion and reason-
able belief. Thus, a finding of probable cause does not
HUMAN RELATIONS TORTSI 591
require an inquiry into whether there is sufficient evi-

dence to procure a conviction.
The Court agreed with the lower courts that the filing
of the Criminal Case for Robbery was not without
probable cause. It said:
Indeed, during the investigation petitioner Rosemarie

admitted her participation in the commission of the
incident complained of. The investigation report, which
prompted the filing of the Information for Robbery
against petitioner Rosemarie showed that she admitted
to receiving instruction from her co-accused Ernesto
Fernandez and a certain Gudo to leave the barrel belt of
the kitchen door unlocked, so her co-accused can gain
entry to the house of respondent Pilar. Moreover, she
admitted that after her co-accused had taken the pieces
of jewelry owned by respondent Pilar, they gave her a
necklace which she kept in a shoulder bag. During the
investigation, she was shown the said necklace, and she
positively identified the same to be the necklace her co-
accused had given her. On the basis of the said
admission, the Office of the Prosecutor found basis and
probable cause to file the appropriate Information with
the RTC against petitioner Rosemarie and her co-accused
Ernesto Fernandez and a certain Gudo. The inadmissi-
bility of the aforesaid admission on the ground that the
same was extracted under duress was an evidentiary
matter, which does not detract from the fact that based
on petitioner Rosemarie's admission, there was reason
for the respondents to believe that the suit was not
unfounded, and that the crime was committed. (citations
omitted)
The Court further reiterated the rule requiring legal

malice. It said:
592 1 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUAsI-DEUcrs
Finally, in an action to recover damages based on

malicious prosecution, it must be established that the
prosecution was impelled by legal malice. There is
necessity of proof that the suit was so patently malicious
as to warrant the award of damages under Articles 19 to
21 of the Civil Code, or that the suit was grounded on
malice or bad faith. Moreover, it is a doctrine well-
entrenched in jurisprudence that the mere act of
not make one liable for malicious prosecution, for the
law would not have meant to impose a penalty on the
right to litigate. (citations omitted)
Applying this rule, the Court found that there was no

proof of a sinister design on the part of the res-
pondents to vex or humiliate Rosemarie by instituting
the criminal case against her and her co-accused. It
added:
Respondent Pilar who was robbed of her valuable
belongings can only be expected to bring the matter to
the authorities. There can be no evil motive that should
be attributed to one, who, as victim of a crime institutes
the necessary legal proceedings. At the risk of redun-
dancy, we stress that the proscription against the
imposition of penalty on the right to litigate must not be
violated. Mere filing of a suit does not render a person
liable for malicious prosecution should he be unsuccess-
ful, for the law could not have meant to impose a penalty
on the right to litigate. There was no other explanation or
motive as to why respondents would institute baseless
prosecution of petitioner Rosemarie. No evidence was
shown that there was bad blood between respondent
Pilar and petitioner Rosemarie prior to the supposed
robbery.
We also do not find the actuations of respondents Ibarra

and Juanito to be impelled by legal malice. Their com-
HuMAN RELATIONS TORTS 1 593
mencement of the action against petitioner Rosemarie

and her co-accused was pursuant to their duties as police
officers. The same was made subsequent to the report of
respondent Pilar of the commission of the crime, and the
investigation on the person of petitioner Rosemarie.
Even then, mistakes committed by a public officer are
not actionable absent any clear showing that they were
motivated by malice or gross negligence amounting to
bad faith, which was not established in the case at bar.
(citations omitted)
5. Oppressive Dismissal
In Quisaba v. Sta. Ines,11 4 Jovito Quisaba filed a com-

plaint for damages against its employer, the Sta. Ines-
Melale Veneer & Plywood, Inc. and its vice-president
Robert Hyde. The complaint alleged that Robert Hyde
instructed Quisaba to purchase logs for the com-
pany's plant. He refused on the ground that the work
of purchasing logs was inconsistent with his position
as internal auditor. On the following day, Hyde
informed him of his temporary relief as internal
auditor so that he could carry out immediately the
instructions thus given, and he was warned that his
failure to comply would be considered a ground for
his dismissal. He responded with a plea for fairness
and mercy as he would be without a job during an
economic crisis and that he was demoted from a
position of dignity to a servile and menial job. The
trial court dismissed the complaint on the ground that
the issue involved an employer-employee matter.
114 Quisabav. Sta Ines, G.R. No. L-38088, 30 August 1974.


The "right" of the respondents to dismiss Quisaba
should not be confused with the manner in which the
right was exercised and the effects flowing therefrom. If
the dismissal was done anti-socially or oppressively, as
the complaint alleges, then the respondents violated
Article 1701 of the Civil Code which prohibits acts of
oppression by either capital or labor against the other,
and Article 21, which makes a person liable for damages
if he wilfully causes loss or injury to another in a manner
that is contrary to morals, good customs or public policy,
the sanction for which, by way of moral damages, is
provided in Article 2219, No. 10. (emphasis supplied)
Thus, the Court ruled that the case was intrinsically

concerned with a civil (not a labor) dispute and had to
do with an alleged violation of Quisaba's rights as a
member of society, and did not involve an existing
employee-employer relation.
D. VIOLATION OF HUMAN DIGNITY
Article 26 provides that every person shall respect the

dignity, personality, privacy and peace of mind of his
neighbors and other persons. It further provides that
the following and similar acts, though they may not
constitute a criminal offense, shall produce a cause of
action for damages, prevention and other relief:
(1) Prying into the privacy of another's residence;

(2) Meddling with or disturbing the private life or
family relations of another;
(3) Intriguing to cause another to be alienated
from his friends;
HUMAN RELAIONS TORs 595
(4) Vexing or humiliating another on account of

his religious beliefs, lowly station in life, place
of birth, physical defect, or other personal
condition.
In Spouses Guanio v. Makati Shangri-la,115 the Court

cited the essence of Article 26 (every person is entitled
to respect of his dignity, personality, privacy and
peace of mind) to justify the award of nominal
damages for an action based on breach of contract.
In St. Louis v. CA, 116 St. Louis Realty caused to be

published, with the permission of Arcadio S. Arcadio,
but without permission of Doctor Aramil, an
advertisement with the heading "WHERE THE
HEART IS" in the issue of the Sunday Times. Below
that heading was the photograph of the residence of
Doctor Aramil and the Arcadio family and then below
the photograph was the following write-up:
Home is where the heart is. And the hearts of MR. AND
MRS. ARCADIO S. ARCADIO and their family have
been captured by BROOKSIDE HILLS. They used to rent
a small 2-bedroom house in a cramped neighborhood,
sadly inadequate and unwholesome for the needs of a
large family. They dream(ed) of a more pleasant place
free from the din and dust of city life yet near all
facilities. Plans took shape when they heard of
BROOKSIDE HILLS. With thrift and determination, they
bought a lot and built their dream house ... for P31,000.
The Arcadios are now part of the friendly, thriving
community of BROOKSIDE HILLS ... a beautiful first-
class subdivision planned for wholesome family living.
15 Spouses Guaniov. Makati Shangri-la, G.R. No. 190601, 7 February 2011.

116 St Louis v. CA, G.R. No. L-46061,14 November 1984.
The same advertisement appeared again in the

Sunday Times. Doctor Aramil, a neuropsychiatrist
and a member of the faculty of the U.E. Ramon
Magsaysay Memorial Hospital, noticed the mistake.
On that same date, he wrote St. Louis Realty the
following letter of protest:
This unauthorized use of my house for your promotional
gain and much more the apparent distortions therein are
I believe not only transgression to my private property
but also damaging to my prestige in the medical
profession. I have had invited in several occasions nume-
rous medical colleagues, medical students and friends to
my house and after reading your December 15 adver-
tisement, some of them have uttered some remarks
purporting doubts as to my professional and personal
integrity. Such sly remarks although in light vein as 'it
looks like your house,' 'how much are you renting from
the Arcadios?', 'like your wife portrayed in the papers as
belonging to another husband,' etc., have resulted in no
little mental anguish on my part.
The letter was received by Emesto Magtoto, an officer

of St. Louis Realty in charge of advertising. He
stopped publication of the advertisement. He con-
tacted Doctor Aramil and offered his apologies. How-
ever, no rectification or apology was published.
Aramil's counsel demanded from St. Louis Realty
actual, moral and exemplary damages of P110,000. In
its answer, St. Louis Realty claimed that there was an
honest mistake and that if Aramil so desired,
rectification would be published in the Manila Times.
It published in the issue of the Manila Times a new
advertisement with the Arcadio family and their real
house, but it did not publish any apology to Doctor
HuMAN RELATIONS TORTS 597
Aramil and an explanation of the error. Aramil filed

his complaint for damages. Later, St. Louis Realty
published in the issue of the Manila Times a "NOTICE
OF RECTIFICATION" in a space four by three inches.
Judge Jose Leuterio observed that St. Louis Realty

should have immediately published a rectification
and apology. He found that as a result of St. Louis
Realty's mistake, magnified by its utter lack of
sincerity, Doctor Aramil suffered mental anguish and
his income was reduced by about P1,000 to P1,500 a
month. Moreover, there was violation of Aramil's
right to privacy (Article 26, Civil Code).
The appellate court affirmed this ruling and reasoned

out that St. Louis Realty committed an actionable
quasi-delict under Articles 21 and 26 of the Civil Code
because the questioned advertisements pictured a
beautiful house which did not belong to Arcadio but
to Doctor Aramil who, naturally, was annoyed by that
contretemps.
The Court ruled that the damages fixed by Judge

Leuterio were sanctioned by Articles 2200, 2208 and
2219 of the Civil Code. Article 2219 allows moral
damages for acts and actions mentioned in Article 26.
As lengthily explained by Justice Gatmaitan, the acts
and omissions of the firm fell under Article 26.
It found that St. Louis Realty's employee was grossly

negligent in mixing up the Aramil and Arcadio resi-
dences in a widely circulated publication like the
Sunday Times. To suit its purpose, it never made any
598 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DELICTS
written apology and explanation of the mix-up. It just

contented itself with a cavalier "rectification." People
who knew the residence of Doctor Aramil were
confused by the distorted, lingering impression that
he was renting his residence from Arcadio or that
Arcadio had leased it from him. Either way, his
private life was mistakenly and unnecessarily
exposed. He suffered diminution of income and
mental anguish.
In Gregorio v. CA, 117 the case arose from the filing of an

complaint for violation of Batas Pambansa Big. 22 by
Emma Datuin, and upon authority of Sansio Philip-
pines, Inc., against Zenaida Gregorio and Vito
Belarmino as proprietors of Alvi Marketing. Gregorio
and Belarmino allegedly delivered insufficiently
funded bank checks as payment for the numerous
appliances bought by Alvi Marketing from Sansio.
Because the address stated in the complaint was
incorrect, Gregorio was unable to respond to the
charges against her. Consequently, she was indicted
for three counts of violation of Batas Pambansa Big.
22. The Metropolitan Trial Court ("MeTC") issued a
warrant for her arrest, and it was served upon her by
the armed operatives of the Public Assistance and
Reaction Against Crime ("PARAC") of the Depart-
ment of Interior and Local Government ("DILG")
while she was visiting her husband and their two
daughters at their city residence. Gregorio was
brought to the PARAC-DILG Office where she was
subjected to fingerprinting and mug shots, and was
117 Gregorio v. CA, G.R. No. 179799, 11 September 2009.

HUMAN RELATiONS ToRTS 599
detained. She was released in the afternoon of the

same day when her husband posted a bond for her
temporary liberty. Gregorio filed a Motion for
Deferment of Arraignment and Reinvestigation,
alleging that she could not have issued the bounced
checks because she did not even have a checking
account with the bank on which the checks were
drawn, as certified by the branch manager of the
Philippine National Bank, Sorsogon Branch. She also
alleged that her signature was patently and radically
different from the signatures appearing on the
bounced checks. The MeTC granted the motion and a
reinvestigation was conducted. In the course of the
reinvestigation, Datuin submitted an Affidavit of
Desistance stating, among others, that Gregorio was
not one of the signatories of the bounced checks
subject of prosecution. The assistant city prosecutor
filed a Motion to Dismiss which the MeTC granted
and thus the cases were dismissed. Gregorio fied a
complaint for damages against Sansio and Datuin. In
her complaint, Gregorio citing Article 26 of the Civil
Code, alleged that "incalculable damage has been
inflicted on [her] on account of the defendants'
wanton, callous and reckless disregard of the
fundamental legal precept that "every person shall
respect the dignity, personality, privacy and peace of
mind of his neighbors and other persons." Sansio and
Datuin filed a Motion to Dismiss on the ground that
the complaint, being one for damages arising from
malicious prosecution, failed to state a cause of action
but the trial court denied the motion. The appellate
court however dismissed the complaint.
Sansio and Datuin argued that Article 26 of the Civil

Code, cited by Gregorio as one of the bases for her
complaint, is the very same provision upon which
malicious prosecution is grounded.
The Court disagreed.
The Court found that Gregorio's civil complaint was a

complaint based on quasi-delict under Article 2176, in
relation to Article 26 of the Civil Code, rather than on
malicious prosecution.
It added:
In every tort case filed under Article 2176 of the Civil
Code, the plaintiff has to prove by a preponderance of
evidence: (1) the damages suffered by him; (2) the fault
or negligence of the defendant or some other person to
whose act he must respond; (3) the connection of cause
and effect between the fault or negligence and the
damages incurred; and (4) that there must be no
preexisting contractual relation between the parties.
On the other hand, Article 26 of the Civil Code grants a

cause of action for damages, prevention, and other relief
in cases of breach, though not necessarily constituting a
criminal offense, of the following rights: (1) right to
personal dignity; (2) right to personal security; (3) right
to family relations; (4) right to social intercourse; (5) right
to privacy; and (6) right to peace of mind. (citations
omitted)
The Court held that the averments in the complaint

fulfill the elements of Article 2176, in relation to
Article 26 of the Civil Code. It explained:
HumN REiAONS TORTS I 601
A scrutiny of Gregorio's civil complaint reveals that the
averments thereof, taken together, fulfill the elements of
Article 2176, in relation to Article 26 of the Civil Code. It
appears that Gregorio's rights to personal dignity,
personal security, privacy, and peace of mind were
infringed by Sansio and Datuin when they failed to
exercise the requisite diligence in determining the
identity of the person they should rightfully accuse of
tendering insufficiently funded checks. This fault was
compounded when they failed to ascertain the correct
address of petitioner, thus depriving her of the
opportunity to controvert the charges, because she was
not given proper notice. Because she was not able to
refute the charges against her, petitioner was falsely
indicted for three (3) counts of violation of B.P. Blg. 22.
Although she was never found at No. 76 Pefiaranda St.,
Legaspi City, the office address of Alvi Marketing as
stated in the criminal complaint, Gregorio was con-
veniently arrested by armed operatives of the PARAC-
DILG at her city residence at 78 K-2 St., Kamuning,
Quezon City, while visiting her family. She suffered
embarrassment and humiliation over her sudden arrest
and detention and she had to spend time, effort, and
money to clear her tarnished name and reputation,
considering that she had held several honorable posi-
tions in different organizations and offices in the public
service, particularly her being a Kagawad in Oas, Albay
at the time of her arrest. There exists no contractual
relation between Gregorio and Sansio. On the other
hand, Gregorio is prosecuting Sansio, under Article 2180
of the Civil Code, for its vicarious liability, as employer,
arising from the act or omission of its employee Datuin.
The Court ruled that Sansio and Datuin were in error

when they insisted that Gregorio's complaint was
based on malicious prosecution.
In an action to recover damages for malicious prose-
cution, it must be alleged and established that Sansio and
Datuin were impelled by legal malice or bad faith in deli-

berately initiating an action against Gregorio, knowing
that the charges were false and groundless, intending to
vex and humiliate her. As previously mentioned,
Gregorio did not allege this in her complaint. Moreover,
the fact that she prayed for moral damages did not
change the nature of her action based on quasi-delict.
She might have acted on the mistaken notion that she
was entitled to moral damages, considering that she
suffered physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation, wounded feel-
ings, moral shock, and social humiliation on account of
her indictment and her sudden arrest.
It must be noted, however, that a plaintiff for a suit

based on Article 26 may be entitled to moral damages
pursuant to Article 2219(10). Therefore, if the action
was based on Article 26, it was not a mistake for
Gregorio to claim moral damages.
E. DERELICTION OF DuTY
Article 27 provides that any person suffering material

or moral loss because a public servant or employee
refuses or neglects, without just cause, to perform his
official duty may file an action for damages and other
relief against the latter, without prejudice to any
disciplinary administrative action that may be taken.
F. UNFAIR COMPETITION
Article 28 provides that unfair competition in agricul-

tural, commercial or industrial enterprises or in labor
through the use of force, intimidation, deceit, machi-
nation or any other unjust, oppressive or highhanded
method shall give rise to a right of action by the

person who thereby suffers damage.
IX. Independent Civil Actions
A. VIOLATION OF CIVIL AND POLmCAL RIGHTS
1. Persons Responsible
Article 32 of the Civil Code provides that any public

officer or employee, or any private individual, who
directly or indirectly obstructs, defeats, violates or in
any manner impedes or impairs any of the rights
listed in the said Article' is liable for damages.
Article 32 is dear that not only public officers but also

*private individuals can incur civil liability for vio-
lation of rights enumerated therein.
Because the provision speaks of an officer or em-

ployee or person "directly or indirectly" responsible
for the violation of the constitutional rights and liber-
ties of another, it is not the actor alone who must
answer for damages under Article 32.2 The person
indirectly responsible also has to answer for the injury
caused to the aggrieved party.3
But if the defendant is a judge, Article 32 provides

that the responsibility under the article is not de-
mandable unless his act or omission constitutes a
violation of the Penal Code or other penal statute.
I The article lists 19 civil and political rights.

2 Silahis v. Soluta, G.R No. 163087,20 February 2006.
3 Id.
604
INDEPENDENTr CMLACTIONS I 605
2. Malice or Bad Faith Not Required
The Court has ruled that it is not necessary "that the

defendant under this Article should have acted with
malice or bad faith, otherwise, it would defeat its
main purpose, which is the effective protection of
individual rights."4 Jurisprudence further provides
that "that a public officer who directly or indirectly
violates the constitutional rights of another, may be
validly sued for damages under Article 32 of the Civil
Code even if his acts were not so tainted with malice
or bad faith."5
This doctrine is founded on the Court's examination

of the intent of the Code Commission for its enact-
ment, which states in part:
It is not necessary therefore that there should be malice
or bad faith. To make such a requisite would defeat the
main purpose of Article 32 which is the effective protec-
tion of individual rights. Public officials in the past have
abused their powers on the pretext of justifiable motives
or good faith in the performance of their duties.
Precisely, the object of the Article is to put an end to
6
official abuse by the plea of good faith.
4 Id.
5 Vinzons-Chato v. Fortune, G.R. No. 141309, 19 June 2007, citing
Cojuangco,Jr.v. Courtof Appeals, G.R. No. 119398, 2 July 1999.
6 Report of the Special Joint Committee of the Congress on the
Amendments to the New Civil Code, XVI, The Lawyers' Journal, No.
5, 31 May 1951, 258, cited in Vinzons-Chato v. Fortune,G.R. No. 141309,
19 June 2007.
Thus, the Court has said that:

The clear intention therefore of the legislature was to
create a distinct cause of action in the nature of tort for
violation of constitutional rights, irrespective of the
7
motive or intent of the defendant.
8
While the Court in Liwayway Vinzons-Chato v. Fortune,
appears to have ruled that the absence of an allegation
of bad faith is necessary in a complaint based on
Article 32, a closer inspection of the case would show
that it did not overturn the well-established doctrine
that bad faith is not an essential element in such an
action.9
3. Nature of Acts Covered
While bad faith or malice is not essential, it is

necessary that there is a violation of the constitutional
right of the plaintiff,' 0 and that such right must be one
of those listed under Article 32.
The article further provides that whether or not the

defendant's act or omission constitutes a criminal
offense, the aggrieved party has a right to commence
7 Vinzons-Chato v. Fortune, G.R. No. 141309, 19 June 2007. But the Court
further explained in a footnote: "In the report on the Special Joint
Committee of the Congress on the Amendments to the New Civil
Code, Dean Bocobo expressed that while the defendant may not be
exonerated on the basis solely of good faith, the inherent justifiability
of his/her act, which is up to the courts to decide under the peculiar
circumstance of each case, may be the basis of absolution."
8 Liwayway Vinzons-Chato v. Fortune, G.R. No. 141309, 23 December
2008.
9 This is discussed in further detail later in this chapter.
10Silahis v. Soluta, G.R. No. 163087,20 February 2006.
INDEPENDENT CML ACnoNs I 607
an entirely separate and distinct civil action for

damages, and for other relief, which will proceed
independently of any criminal prosecution and may
be proved by a preponderance of evidence.
4. Rationale for Article 32
In Aberca v. Ver,11 the Court explained that the

purpose of Article 32 is to protect the deeply che-
rished rights and freedoms enshrined in the Consti-
tution. It added:
Its message is clear: no man may seek to violate those

sacred rights with impunity. In times of great upheaval
or of social and political stress, when the temptation is
strongest to yield -borrowing the words of Chief Justice
Claudio Teehankee-to the law of force rather than the
force of law, it is necessary to remind ourselves that
certain basic rights and liberties are immutable and
cannot be sacrificed to the transient needs or imperious
demands of the ruling power. The rule of law must
prevail, or else liberty will perish. Our commitment to
democratic principles and to the rule of law compels us
to reject the view which reduces law to nothing but the
expression of the will of the predominant power in the
community.
In MHP Garments v. CA,1 2 the Boy Scouts of the

Philippines awarded MHP the exclusive franchise to
sell and distribute official Boy Scouts uniforms. MHP
received information that Agnes Villa Cruz, Mirasol
Lugatiman, and Gertrudes Gonzales ("Respondents")
were selling Boy Scouts items and paraphernalia with-
" Aberca v. Ver, G.R. No. 69866,15 April 1988.

12 MHP Garments v. CA, G.R. No. 86720,2 September 1994.
out any authority. Larry De Guzman, an employee of

MHP, was tasked to undertake the necessary sur-
veillance and to make a report to the Philippine
Constabulary ("PC"). De Guzman, Captain Renato
Pefiafiel and other constabulary men went to the
stores of Respondents at the Marikina Public Market
and without any warrant, seized the boy and girl
scouts pants, dresses, and suits on display at the Res-
pondents' stall. The items were turned over to MIIP
for safekeeping.
The complaint for unfair competition filed against the

Respondents was dismissed and MHP was ordered to
return the seized items. But the seized items were not
immediately returned despite demands. The Res-
pondents had to personally go to MHP's place of
business to recover their goods. Even then, not all the
seized items were returned and those returned "were
of inferior quality." The Respondents then filed a civil
case against the MHP for sums of money and da-
mages. The lower courts ruled in favor of Res-
pondents.
The Court explained that Article III, Section 2, of the

Constitution 13 protects the people from unreasonable
search and seizure.
13
The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever
nature for any purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce,
and particularly describing the place to be searched and the persons
or things to be seized.
INDEPENDEN CMLACnONS 1 609
Furthermore, it pointed out that under the Rules of

Court, a warrantless search can only be undertaken
under the following circumstance:
SEC. 12. Search incident to a lawful arrest.-A person
lawfully arrested may be searched for dangerous
weapons or anything which may be used a proof of the
commission of an offense, without a search warrant.
The Court held that the evidence did not justify the
warrantless search and seizure of Respondents'
goods. It explained:
The progression of time between the receipt of the
information and the raid of the stores of private respon-
dents shows there was sufficient time for petitioners and
the PC raiding party to apply for a judicial warrant.
Despite the sufficiency of time, they did not apply for a
warrant and seized the goods of private respondents. In
doing so, they took the risk of a suit for damages in case
the seizure would be proved to violate the right of
private respondents against unreasonable search and
seizure. In the case at bench, the search and seizure were
clearly illegal. There was no probable cause for the
seizure. (emphasis supplied)
Regarding MHP's argument that it was the police

who conducted the raid and their participation was
only to report the alleged illegal activity, it ruled that
while the members of the PC raiding team should
have been included in the complaint still, the omission
did not exculpate MHP.
610 I ANA.YSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DELICTS
The Court cited the case of Aberca v. Ver:14

[T]he decisive factor in this case, in our view, is the
language of Article 32. The law speaks of an officer or
employee or person "directly or indirectly" responsible
for the violation of the constitutional rights and liberties
of another. Thus, it is not the actor alone (i.e. the one
directly responsible) who must answer for damages
under Article 32; the person indirectly responsible has
also to answer for the damages or injury caused to the
aggrieved party.
xxx xxx xxx
While it would certainly be too naive to expect the

violators of human rights would easily be deterred by
the prospect of facing damages suits, it should none-
theless be made clear in no uncertain terms that Article
32 of the Civil Code makes the persons who are directly,
as well as indirectly, responsible for the transgression
joint tortfeasors.
xxx xxx xxx
[N]either can it be said that only those shown to have

participated "directly" should be held liable. Article 32 of
the Civil Code encompasses within the ambit of its
provisions those directly, as well as indirectly, res-
ponsible for its violations. (emphasis supplied)
The Court found that MHP and De Guzman were

indirectly involved in transgressing the right of
Respondents against unreasonable search and seizure.
It explained:
Firstly, they instigated the raid pursuant to their

covenant in the Memorandum Agreement to undertake
14
Aberca v. Ver, G.R. No. 69866,15 April 1988.
INDEPENDENT CVL AcnoNs I 611
the prosecution in court of all illegal sources of scouting

supplies. As correctly observed by respondent court:
Indeed, the acts committed by the PC soldiers of

unlawfully appellees' (respondents') merchandise
and of filing the criminal complaint for unfair com-
petition against appellees (respondents) were for the
protection and benefit of appellant (petitioner) corpo-
ration. Such being the case, it is, thus, reasonably fair
to infer from those acts that it was upon appellant
(petitioner) corporation's instance that the PC sol-
diers conducted the raid and effected the illegal
seizure. These circumstances should answer the trial
court's query-posed in its decision now under consi-
deration-as to why the PC soldiers immediately
turned over the seized merchandise to appellant
(petitioner) corporation.
The raid was conducted with the active participation of

their employee. Larry de Guzman did not lift a finger to
stop the seizure of the boy and girl scouts items. By
standing by and apparently assenting thereto, he was
liable to the same extent as the officers themselves. So
with the petitioner corporation which even received for
safekeeping the goods unreasonably seized by the PC
raiding team and de Guzman, and refused to surrender
them for quite a time despite the dismissal of its
complaint for unfair competition. (citation omitted,
emphasis supplied)
In Silahis v. Soluta,15 marijuana was allegedly found in

the Silahis Hotel employees union's office. As a result
of the discovery, a complaint was filed against the 13
union officers for violation of the Dangerous Drugs
Act. The trial court acquitted the accused. Rogelio
Soluta and his fellow union officers, together with the
union ("Respondents"), filed a complaint against
15 Silahis v. Soluta, G.R. No. 163087,20 February 2006.

Silahis Hotel and its Vice President for Finance,

including prosecuting Fiscal Jose Bautista and Atty.
Eduardo Tutaan ("Petitioners") who assisted in the
prosecution of the case against them, for malicious
prosecution and violation of their constitutional right
against illegal search. The trial court held Petitioners
jointly and severally liable for damages as a result of
malicious prosecution and illegal search of the union
office. The appellate court affirmed with modification
the trial court's decision. It found the Petitioners
civilly liable for damages for violation of the consti-
tutional right against illegal search of Respondents.
Petitioners argued that the appellate court gravely
erred when it applied People v. Aruta16 to justify their
alleged liability under Article 32 of the New Civil
Code.
After quoting the relevant portion of Article 32, the

Court explained:
As constitutional rights, like the right to be secure in
one's person, house, papers, and effects against un-
reasonable search and seizures, occupy a lofty position in
every civilized and democratic community and not
infrequently susceptible to abuse, their violation, whe-
ther constituting a penal offense or not, must be guarded
against. As the Code Commission noted,
xxx xxx xxx
(3) Direct and open violations of the Penal Code

trampling upon the freedoms named are not so
frequent as those subtle, clever and indirect ways
which do not come within the pale of the penal law. It
16 Peoplev. Aruta, G.R. No. 120915,13 April 1998.

INDEPENDITCMLACTlO# I 613
is in these cunning devices of suppressing or cur-

tailing freedom. which are not criminally punishable,
where the greatest danger to democracy lies. The
injured ctizen will always have, under the new Civil
Code, adequate civil remedies before the courts
because of the independent civil action, even in those
instances where the act or omission complained of
does not constitute a criminal offense. (emphasis by
the court)
The Court pointed out that "the Code Commission

thus deemed it necessary to hold not only public offi-
cers but also private individuals civilly liable for
violation of fights enumerated in Article 32 of the
Civil Code." It explained:
That is why it is not even necessary that the defendant

under this Article should have acted with malice or bad
faith, otherwise, it would defeat its main purpose, which
is the effective protection of individual rights. It suffices
that there is a violation of the constitutional right of the
plaintiff. (citation omitted, emphasis supplied)
In this case, the Court noted that the Petitioners had

received reports in 1987 of illegal activities allegedly
undertaken in the union office. But on January 11,
1988, Petitioners barged into and searched the union
office without a search warrant, despite ample time
for them to obtain one, and notwithstanding the
objection of Babay. It said:
The course taken by petitioners and company stinks in
illegality, it not falling under any of the exceptional
instances when a warrantless search is allowed by law.
Petitioners' violation of individual respondents' consti-
tutional right against unreasonable search thus furnishes
the basis for the award of damages under Article 32 of
the Civil Code.
614 1ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON ToRmS AND QUASi-DELIcTs
The Court cited the case of A4HP Garments v. CA, 17

where the Court upheld the grant of damages by the
trial court for violation of the right against unreason-
able search and seizure because the progression of
time between the receipt of the information and the
raid showed that there was sufficient time to apply for
a judicial warrant, yet they did not apply for one.
The Court rejected the argument that property rights

justified the search of the union office because the
Respondents, being the lawful occupants of the office,
had the right to raise the question of validity of the
search and seizure. Thus, even if the person
conducting the search owns the premises, it can still
violate Article 32 if the person searched is a lawful
occupant.
Furthermore, the Court explained that while the right

against unreasonable searches and seizures may be
waived expressly or impliedly, a waiver by impli-
cation cannot be presumed. It is required that there
"be dear and convincing evidence of an actual
intention to relinquish it to constitute a waiver there-
of." It is required that:
(a) that the right exists;

(b) that the person involved had knowledge, either
actual or constructive, of the existence of such
right; and,
(c) that the said person had an actual intention to
relinquish the right.
17 MHP Garments v. CA, G.R No. 86720, 2 September 1994.

INDEPENDENT CML AcnoNS 1615
It is required that "the waiver must be voluntarily,

knowingly and intelligently made." But the Court
found that the evidence showed otherwise.
The Court added:
That a violation of one's constitutional right against

illegal search and seizure can be the basis for the
recovery of damages under Article 32 in relation to
Article 2219(6) and (10) of the New Civil Code, there is no
doubt. Since the complaint filed before the trial court
was for damages due to malicious prosecution and
violation of constitutional right against illegal search and
seizure, the award by the trial court of actual damages to
respondent union was correctly set aside by the
appellate court.
Article 32, speaks of an officer or employee or person

"directly or indirectly" responsible for the violation of
the constitutional rights and liberties of another. Hence,
it is not the actor alone who must answer for damages
under Article 32; the person indirectly responsible has
also to answer for the damages or injury caused to the
aggrieved party. Such being the case, petitioners,
together with Maniego and Villanueva, the ones who
orchestrated the illegal search, are jointly and severally
liable for actual, moral and exemplary damages to herein
individual respondents in accordance with the earlier-
quoted pertinent provision of Article 32... (citations
omitted)
In Vinzons-Chato v. Fortune,18 Liwayway Vinzons-

Chato was then the Commissioner of Internal Re-
venue while Fortune Tobacco Corporation ("Fortune")
manufactured different brands of cigarettes including
"Champion," "Hope," and "More". Prior to the
18 Vinzons-Chato v. Fortune,G.R. No. 141309,19 June 2007.

616 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON ToRTs AND QuAsI-DEUcTS
effectivity of Republic Act No. 7654 ("RA 7654"),

"Champion," "Hope," and "More" were considered lo-
cal brands subjected to an ad valorem tax at the rate of
20-45%. However, on July 1, 1993, or two days before
RA 7654 took effect, Vinzons-Chato issued RMC 37-
93, reclassifying "Champion," "Hope," and "More" as
locally manufactured cigarettes bearing a foreign
brand subject to the 55% ad valorem tax." On July 2,
1993, at about 5:50 p.m., BIR Deputy Commissioner
Victor Deoferio, Jr. sent a copy of RMC 37-93 via
telefax to Fortune but it was addressed to no one in
particular. On July 15, 1993, Fortune received, by
ordinary mail, a certified photocopy of RMC 37-93.
Fortune filed a motion for reconsideration, requesting
the recall of RMC 37-93, which was denied. The same
letter assessed Fortune for an ad valorem tax deficiency
amounting to P9,598,334 (computed on the basis of
RMC 37-93) and demanded payment within 10 days
from receipt thereof. Fortune filed a petition for
review with the Court of Tax Appeals ("CTA"), which
issued an injunction enjoining the implementation of
RMC 37-93. In its decision, the CTA ruled that RMC
37-93 was defective, invalid, and unenforceable and
further enjoined Vinzons-Chato from collecting the
deficiency tax assessment issued pursuant to RMC
No. 37-93. This ruling was affirmed by the appellate
court, and finally by the Supreme Court in
Commissionerof Internal Revenue v. Court of Appeals.19 It
was held, among others, that RMC 37-93, had fallen
short of the requirements for a valid administrative
19
Commissioner of Internal Revenue v. Court ofAppeals, G.R. No. 119761,29
August 1996.
IDPBDENrCMLAc11ONS 1617
issuance. Fortune then filed a complaint for damages

against Vinzons-Chato in her private capacity. It
argued that Vinzons-Chato should be held liable for
damages under Article 32 of the Civil Code con-
sidering that the issuance of RMC 37-93 violated its
constitutional right against deprivation of property
without due process of law and the right to equal
protection of the laws. Vinzons-Chato filed a motion
to dismiss, arguing primarily that:
* Fortune had no cause of action against her

because she issued RMC 37-93 in the perfor-
mance of her official function and within the
scope of her authority; and
" the complaint stated no cause of action for lack
of allegation of malice or bad faith.
The trial court denied the motion to dismiss, holding
that to rule on the allegations of Vinzons-Chato would
be to prematurely decide the merits of the case with-
out allowing the parties to present evidence. The
appellate court dismissed the Petition for Certiorari
on the ground that under Article 32 of the Civil Code,
liability may arise even if the defendant did not act
with malice or bad faith.
Before the Court, Vinzons-Chato argued that the suit

against her was grounded on her acts done in the per-
formance of her functions as a public officer; hence, it
was Section 38, Book I of the Administrative Code
which should be applied. Under this provision, liabi-
lity will attach only when there is a clear showing of
bad faith, malice, or gross negligence. She also argued
618 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASi-DEUcTs
Article 32 of the Civil Code is a general law on the

liability of public officers while Section 38, Book I of
the Administrative Code is a special law on the
superior public officers' liability, such that, if the com-
plaint, as in the instant case, does not allege bad faith,
malice, or gross negligence, the same is dismissible for
failure to state a cause of action.
The first issue discussed by the Court was whether a

public officer may be validly sued in his private capa-
city for acts done in connection with the discharge of
the functions of his office.

the general rule is that a public officer is not liable for
damages which a person may suffer arising from the just
performance of his official duties and within the scope of
his assigned tasks. An officer who acts within his
authority to administer the affairs of the office which
he/she heads is not liable for damages that may have
been caused to another, as it would virtually be a charge
against the Republic, which is not amenable to judgment
for monetary claims without its consent. However, a
public officer is by law not immune from damages in
his/her personal capacity for acts done in bad faith
which, being outside the scope of his authority, are no
longer protected by the mantle of immunity for official
actions. (citations omitted, emphasis supplied)
The Court cited Section 38, Book I of the Admi-

nistrative Code, which provides for civil liability
where there is bad faith, malice, or gross negligence
on the part of a superior public officer. It further
stated that under Section 39 of the same Book, civil
liability may arise where the subordinate public
INDEPENDENT CML AcTiONS I 619
officer's act is characterized by willfulness or neg-

ligence.
The Court also cited Cojuangco, Jr. v. Court of Appeals,20

where it said that a public officer who directly or
indirectly violates the constitutional rights of another
may be validly sued for damages under Article 32 of
the Civil Code even if his acts were not so tainted with
malice or bad faith. It added:
Thus, the rule in this jurisdiction is that a public officer
may be validly sued in his/her private capacity for acts
done in the course of the performance of the functions of
the office, where said public officer: (1) acted with
malice, bad faith, or negligence; or (2) where the public
officer violated a constitutional right of the plaintiff.31
The second issue decided by the Court was whether it

was Article 32 of the Civil Code or Section 38, Book I
of the Administrative Code which should govern in
determining whether the complaint stated a cause of
action.
The Court decided that the complaint filed by Fortune

stated a cause of action and that the decisive provision
thereon was Article 32 of the Civil Code. It justified
this ruling by expounding on the rules regarding
general and special laws.
After quoting ihe relevant portion of Article 32, which

indicated that said article was applicable for violation
of a person's right "against deprivation of property
20 Cojuangco, Jr. v. Court of Appeals, G.R. No. 119398,2 July 1999.

2Id.
620 I ANALYSIS OF PHILPPINE LAW AND JURISPRUDENCE ON TORTS AND QUAS-DELICTS
without due process of law" and "the right to the

equal protection of the laws," the Court quoted from
the statements of the Code Commission:
DEAN BOCOBO. Article 32, regarding individual rights,
Attorney Cirilo Paredes proposes that Article 32 be so
amended as to make a public official liable for violation
of another person's constitutional rights only if the
public official acted maliciously or in bad faith. The Code
Commission opposes this suggestion for these reasons:
The very nature of Article 32 is that the wrong may be

civil or criminal. It is not necessary therefore that
there should be malice or bad faith. To make such a
requisite would defeat the main purpose of Article 32
which is the effective protection of individual rights.
Public officials in the past have abused their powers
on the pretext of justifiable motives or good faith in
the performance of their duties. Precisely, the object
of the Article isto put an end to official abuse by the
plea of good faith. In the United States, this remedy is
in the nature of a tort.
Mr. Chairman, this article is firmly one of the funda-

mental articles introduced in the New Civil Code to
implement democracy. There is no real democracy if a
public official is abusing and we made the article so
strong and so comprehensive that it concludes an
abuse of individual rights even if done in good faith,
that official is liable. As a matter of fact, we know that
there are very few public officials who openly and
definitely abuse the individual rights of the citizens.
In most cases, the abuse is justified on a plea of desire
to enforce the law to comply with one's duty. And so,
if we should limit the scope of this article, that
would practically nullify the object of the article.
Precisely, the opening object of the article is to put an
end to abuses which are justified by a plea of good
INDEPENDMr CMLAcnoNsI 621
faith, which is in most cases the plea of officials

abusing individual rights.2 (emphasis supplied)
The Court noted that the Code Commission deemed it

necessary to hold not only public officers but also pri-
vate individuals civilly liable for violation of the rights
enumerated in Article 32 of the Civil Code and that it
was not necessary that the defendant under this
article should have acted with malice or bad faith.
The Court then compared Article 32 and the U.S.

common law concept of tort.
Article 32 was patterned after the "tore' in American law.

A tort is a wrong, a tortious act which has been defined
as the commission or omission of an act by one, without
right, whereby another receives some injury, directly or
indirectly, in person, property, or reputation. There are
cases inwhich it has been stated that civil liability in tort
is determined by the conduct and not by the mental state
of the tortfeasor, and there are circumstances under
which the motive of the defendant has been rendered
immaterial. The reason sometimes given for the rule is
that otherwise, the mental attitude of the alleged wrong-
doer, and not the act itself, would determine whether the
act was wrongful. Presence of good motive, or rather, the
absence of an evil motive, does not render lawful an act
which is otherwise an invasion of another's legal right;
that is, liability in tort is not precluded by the fact that
defendant acted without evil intent. (citations omitted)
22
Cited in this case as '"Report of the Special Joint Committee of the
Congress on the Amendments to the New Civil Code, XVI, The
Lawyers' Journal, No. 5,31 May 1951, 258."
622 1 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QuASI-DEICTS
The Court held that:

The clear intention therefore of the legislature was to
create a distinct cause of action in the nature of tort for
violation of constitutional rights, irrespective of the
motive or intent of the defendant. This is a fundamental
innovation in the Civil Code, and in enacting the Admi-
nistrative Code pursuant to the exercise of legislative
powers, then President Corazon C. Aquino, could not
have intended to obliterate this constitutional protection
on civil liberties. (citation omitted)
The Court cited Aberca v. Ver 23 and explained that:

with the enactment of Article 32, the principle of ac-
countability of public officials under the Constitution
acquires added meaning and assumes a larger dimen-
sion. No longer may a superior official relax his vigilance
or abdicate his duty to supervise his subordinates, secure
in the thought that he does not have to answer for the
transgressions committed by the latter against the consti-
tutionally protected rights and liberties of the citizen.
Part of the factors that propelled people power in
February 1986 was the widely held perception that the
government was callous or indifferent to, if not actually
responsible for, the rampant violations of human rights.
While it would certainly be too naive to expect that
violators of human rights would easily be deterred by
the prospect of facing damage suits, it should none-
theless be made clear in no uncertain terms that Article
32 of the Civil Code makes the persons who are directly,
as well as indirectly, responsible for the transgression,
joint tortfeasors.
The Court then compared the Administrative Code

and the Civil Code provisions in question:
Aberca v. Ver, G.R No. 69866,15 April 1988.

INDEPENDENT CML AcTIoNs 623
On the other hand, Sections 38 and 39, Book I of the

Administrative Code, laid down the rule on the civil
liability of superior and subordinate public officers for
acts done in the performance of their duties. For both
superior and subordinate public officers, the presence of
bad faith, malice, and negligence are vital elements that
will make them liable for damages. Note that while said
provisions deal in particular with the liability of govern-
ment officials, the subject thereof is general, i.e., "acts"
done in the performance of official duties, without
specifying the action or omission that may give rise to a
civil suit against the official concerned.
Contrarily, Article 32 of the Civil Code specifies in clear

and unequivocal terms a particular specie of an "act" that
may give rise to an action for damages against a public
officer, and that is, a tort for impairment of rights and
liberties. Indeed, Article 32 is the special provision that
deals specifically with violation of constitutional rights
by public officers. All other actionable acts of public
officers are governed by Sections 38 and 39 of the
Administrative Code. While the Civil Code, specifically,
the Chapter on Human Relations is a general law, Article
32 of the same Chapter is a special and specific provision
that holds a public officer liable for and allows redress
from a particular class of wrongful acts that may be
committed by public officers. Compared thus with
Section 38 of the Administrative Code, which broadly
deals with civil liability arising from errors in the
performance of duties, Article 32 of the Civil Code is the
specific provision which must be applied in the instant
case precisely filed to seek damages for violation of
constitutional rights. (emphasis supplied)
Thus, the Court held that the complaint in this case

was brought under Article 32 of the Civil Code.
Because bad faith and malice are not necessary in an
action based on Article 32 of the Civil Code, the
624 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QuAsi-DEICTS
failure to specifically allege the same will not amount

to failure to state a cause of action.
After the original decision of the Court was rendered,

Vinzons-Chato moved for the reconsideration of the
said decision. The Court, in a Resolution dated April
14, 2008, denied with finality petitioner's motion for
reconsideration. But Vinzons-Chato filed, on April 29,
2008 a Motion to Refer the case to the Court En Banc.
In this motion, she contended that the petition raised
a legal question that was novel and was of paramount
importance because the earlier decision rendered by
the Court will send a chilling effect to public officers,
and will adversely affect the performance of duties of
superior public officers in departments or agencies
with rule-making and quasi-judicial powers.
In a Resolution 24 penned by Justice Nachura, the

Court reconsidered its decision.
The justification for the reconsideration began with an

explanation that:
There are two kinds of duties exercised by public
officers: the "duty owing to the public collectively" (the
body politic), and the "duty owing to particular
individuals,"
The Court expounded thus:

1. Of Duties to the Public.-The first of these classes
embraces those officers whose duty is owing primarily to
the public collectively-to the body politic-and not to
24 Liwayway Vinzons-Chato v. Fortune, G.R. No. 141309, 23 December

2008.
INDEENDN CML ACnONs I 625
any particular individual; who act for the public at large,

and who are ordinarily paid out of the public treasury.
The officers whose duties fall wholly or partially within

this class are numerous and the distinction will be
readily recognized. Thus, the governor owes a duty to
the public to see that the laws are properly executed, that
fit and competent officials are appointed by him, that
unworthy and ill-considered acts of the legislature do
not receive his approval, but these, and many others of a
like nature, are duties which he owes to the public at
large and no one individual could single himself out and
assert that they were duties owing to him alone. So,
members of the legislature owe a duty to the public to
pass only wise and proper laws, but no one person could
pretend that the duty was owing to himself rather than
to another. Highway commissioners owe a duty that
they will be governed only by considerations of the
public good in deciding upon the opening or closing of
highways, but it is not a duty to any particular indi-
vidual of the community.
These illustrations might be greatly extended, but it is

believed that they are sufficient to define the general
doctrine.
2. Of Duties to Individuals.-The second class above

referred to includes those who, while they owe to the
public the general duty of a proper administration of
their respective offices, yet become, by reason of their
employment by a particular individual to do some act
for him in an official capacity, under a special and
particular obligation to him as an individual. They serve
individuals chiefly and usually receive their compen-
sation from fees paid by each individual who employs
them.
A sheriff or constable in serving civil process for a

private suitor, a recorder of deeds in recording the deed
626 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QuASI-DEUcTs
or mortgage of an individual, a clerk of court in entering
up a private judgment, a notary public in protesting
negotiable paper, an inspector of elections in passing
upon the qualifications of an elector, each owes a general
duty of official good conduct to the public, but he is also
under a special duty to the particular individual
concerned which gives the latter a peculiar interest in his
due performance.
Closer analysis of these paragraphs would reveal that

contrary to the heading, what are being distinguished
are not two types of duties but two types of public
officers. It must further be noted that Article 32 does
not distinguish types of public officers nor types of
duties of public officers. It does not require that public
officers be of a particular type in order to be liable for
damages. Neither does Article 32 require that a public
officer perform a particular type of duty in order to be
liable under Article 32. Article 32 applies to all public
officers and employees without distinction. In fact, it
may be said that anyone can violate Article 32 because
even private individuals can be held liable.
Therefore, in the context of Article 32, the statement

that "[i]n determining whether a public officer is liable
for an improper performance or non-performance of a
duty, it must first be determined which of the two
classes of duties is involved" appears to have no basis.
The ponente further argued that:

Stated differently, when what is involved is a "duty
owing to the public in general", an individual cannot
have a cause of action for damages against the public
officer, even though he may have been injured by the
action or inaction of the officer. In such a case, there is
INDEPENDENT CMLAcIoNs 1627
damage to the individual but no wrong to him. In

performing or failing to perform a public duty, the
officer has touched his interest to his prejudice; but the
officer owes no duty to him as an individual. The
remedy in this case is not judicial but political.
In sum, the argument is that if what is involved is a

duty owed to the public, the public officer has no
liability to the injured individual. With all due respect,
this is inaccurate in the context of Article 32, otherwise
public officers would be exempt from liability simply
on the basis that they owe duties to the public. Article
32 does not provide this exception and is anathema to
the intent behind the provision. This exemption, if
allowed, is even worse than the good faith defense
that the framers did not allow. A public officer who
violates an individual's rights in bad faith can escape
liability on the pretext that he owes duties to the
public and is therefore beyond the scope of Article 32.
To avoid this unjust result, one may point out the

"exception" indicated by the Court. It said:
The exception to this rule occurs when the complaining

individual suffers a particular or special injury on
account of the public officer's improper performance
or non-performance of his public duty. An individual
can never be suffered to sue for an injury which,
technically, is one to the public only; he must show a
wrong which he specially suffers, and damage alone
does not constitute a wrong. A contrary precept (that an
individual, in the absence of a special and peculiar
injury, can still institute an action against a public officer
on account of an improper performance or non-
performance of a duty owing to the public generally)
will lead to a deluge of suits, for if one man might have
an action, all men might have the like-the complaining
628 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUAS-DELICTS
individual has no better right than anybody else. If such

were the case, no one will serve a public office. Thus, the
rule restated is that an individual cannot have a
particular action against a public officer without a
particular injury, or a particular right, which are the
grounds upon which all actions are founded. (emphasis
supplied)
While injury is admittedly a requirement to entitle one

to an award for damages under Article 32, the charac-
terization that it is an exception would be inaccurate.
Contrary to such characterization, the presence of
injury is required as a general rule in every case.
Thus, to say that:

an individual can hold a public officer personally liable
for damages on account of an act or omission that
violates a constitutional right only if it results in a
particular wrong or injury to the former.
would be tantamount to transforming a general rule

into an exception to a general rule that does not exist.
Such fiction would create an illusion that it is possible

for a public officer to violate constitutional rights
without being liable for damages on the pretext that
his duty is owed to the public in general. More than
being illusory, it muddles the otherwise pristine
intention of the law to render public officers liable for
violation of constitutional rights regardless of the
nature of their functions.
The ponencia then explained that what was involved in

this case was a public officer's duty owing to the
public in general. This was because:
INDeNTCMLACnoNs I 629
The petitioner, as the then Commissioner of the Bureau

of Internal Revenue, is being taken to task for Revenue
Memorandum Circular (RMC) No. 37-93 which she
issued without the requisite notice, hearing and publi-
cation, and which, in Commissioner of Internal Revenue v.
Court of Appeals, we declared as having "fallen short of a
valid and effective administrative issuance." A public
officer, such as the petitioner, vested with quasi-legis-
lative or rule-making power, owes a duty to the public to
promulgate rules which are compliant with the require-
ments of valid administrative regulations. But it is a duty
owed not to the respondent alone, but to the entire body
politic who would be affected, directly or indirectly, by
the administrative rule. (citations omitted)
While it may be true that the rule-making power of

the Commissioner is a duty owed to all, the particular
act complained of in this case was directed toward a
specific person. When a public officer's acts are direct-
ed to a specific person, she has a duty to that person
to act accordingly. So even assuming that the nature
of the power of public officer is relevant, what was
involved in this particular case was arguably a duty
she owed to a specific person.
The Court added:
Furthermore, as discussed above, to have a cause of

action for damages against the petitioner, respondent
must allege that it suffered a particular or special
injury on account of the non-performance by petitioner
of the public duty. A careful reading of the complaint
filed with the trial court reveals that no particular injury
is alleged to have been sustained by the respondent.
The phrase "financial and business difficulties" men-
tioned in the complaint is a vague notion, ambiguous
in concept, and cannot translate into a "particular
injury." In contrast, the facts of the case eloquently
630 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON ToRTs AND QUASIDELICTS
demonstrate that the petitioner took nothing from the
respondent, as the latter did not pay a single centavo on
the tax assessment levied by the former by virtue of
RMC 37-93.
With no "particular injury" alleged in the complaint,

there is, therefore, no delict or wrongful act or omission
attributable to the petitioner that would violate the
primary rights of the respondent. Without such delict or
tortious act or omission, the complaint then fails to state
a cause of action, because a cause of action is the act or
omission by which a party violates a right of another.
It seems that the Court here was saying that there was
no injury to Fortune because it did not pay any addi-
tional tax. The Court interpreted this as a situation
without injury and because there was no injury,
Fortune did not have a cause of action under Article
32. But the reason why Fortune did not have to pay a
single centavo on the tax assessment was because it
sought judicial relief. By taking this route, which was
forced upon it under the circumstances created by the
public officer, Fortune incurred costs. Thus, while it
did not lose property in the form of taxes paid, it did
incur legal fees as a result of an admittedly defective
regulation. That the cost did not come in the form of
taxes did not diminish its value in absolute terms.
Furthermore, two other issues may be raised regard-

ing this argument that Fortune suffered no actual
pecuniary damage. First, does this mean that if the
plaintiff was able to effectively prevent what would
have been a violation of its constitutional right
through legal means, it cannot file an action under
INDEPENDENT CML ACTIONS 1 631
Article 32? Does Article 32 require that the plaintiff

allow himself to suffer the constitutional violation
before it can seek damages under Article 32? Second,
even assuming that a constitutional right must first be
violated before an action for Article 32 can arise, is not
the enactment of legislation which violates a person's
constitutional rights sufficient as basis of an action
under Article 32 or is it required that such law be first
enforced against the plaintiff before the cause of
action can arise? In other words, in the case of
legislation or rule-making, does not the mere enact-
ment of an unconstitutional law or rule constitute a
violation of constitutional rights?
In this case, the Court seems to have required the

allegation of bad faith on the part of Vinzons-Chato
even though the action was anchored on Article 32.
The Court said:
The complaint in this case does not impute bad faith on

the petitioner. Without any allegation of bad faith, the
cause of action in the respondent's complaint ... for
damages under Article 32 of the Civil Code would be
premised on the findings of this Court in Commissioner of
Internal Revenue v. Court of Appeals (CIR v. CA), where we
ruled that RMC No. 37-93, issued by petitioner in her
capacity as Commissioner of Internal Revenue, had
"fallen short of a valid and effective administrative
issuance". This is a logical inference. Without the deci-
sion in CIR v. CA, the bare allegations in the complaint
that respondent's rights to due process of law and to
equal protection of the laws were violated by the peti-
tioner's administrative issuance would be conclusions of
law, hence not hypothetically admitted by petitioner in
her motion to dismiss.
632 I ANALYSIS OF PHILPPINE LAW AND JURISPRUDENCE ON TORTSAND QuAsi-DE.ICTs
But in C/R v. CA, this Court did not declare RMC 37-93
unconstitutional; certainly not from either the due
process of law or equal protection of the laws pers-
pective. On due process, the majority, after determining
that RMC 37-93 was a legislative rule, cited an earlier
Revenue Memorandum Circular (RMC No. 10-86) re-
quiring prior notice before RMC's could become
"operative". However, this Court did not make an
express finding of violation of the right to due process of
law. On the aspect of equal protection, CIR v. CA said:
"Not insignificantly, RMC 37-93 might have likewise
infringed on uniformity of taxation"; a statement that
does not amount to a positive indictment of petitioner
for violation of respondent's constitutional right. Even if
one were to ascribe a constitutional infringement by
RMC 37-93 on the non-uniformity of tax provisions, the
nature of the constitutional transgression falls under
Section 28, Article VI-not Section 1, Article I-of the
Constitution.
This Court's own summation in CIR v. CA: "All taken,

the Court is convinced that the hastily promulgated
RMC 37-93 has fallen short of a valid and effective
administrative issuance", does not lend itself to an
interpretation that the RMC is unconstitutional. Thus,
the complaint's reliance on CIR v. CA-which is cited in,
and a copy of which is annexed to, the complaint-as
suggestive of a violation of due process and equal
protection, must fail.
Accordingly, from the foregoing discussion, it is obvious

that paragraph 2.02 of respondent's complaint loses the
needed crutch to sustain a valid cause of action against
the petitioner, for what is left of the paragraph is merely
the allegation that only respondent's "Champion",
"Hope" and "More" cigarettes were reclassified.
If we divest the complaint of its reliance on C/R v. CA,

what remains of respondent's cause of action for
INEPEODENT CMLACnoNS I 633
violation of constitutional rights would be paragraph

2.01, which reads:
2.01. On or about July 1, 1993, defendant issued

Revenue Memorandum Circular No. 37-93 (here-
inafter referred to as RMC No. 37-93) reclassifying
specifically "Champion", "Hope" and "More" as local-
ly manufactured cigarettes bearing a foreign brand. A
copy of the aforesaid circular is attached hereto and
made an integral part hereof as ANNEX "A". The
issuance of a circular and its implementation resulted
in the "deprivation of property" of plaintiff. They were
done without due process of law and in violation of the right
of plaintiff to the equal protection of the laws. (emphasis
by the Court)
But, as intimated above, the bare allegations, "done

without due process of law" and "in violation of the right
of plaintiff to the equal protection of the laws" are
conclusions of law. They are not hypothetically admitted
in petitioner's motion to dismiss and, for purposes of the
motion to dismiss, are not deemed as facts.
The Court cited Fluor Daniel, Inc. Philippines v. EB.

Villarosa & Partners Co., Ltd.,2S where the Court was
said to have declared that the test of sufficiency of
facts alleged in the complaint as constituting a cause
of action is whether or not, admitting the facts alleged,
the court could render a valid verdict in accordance
with the prayer of the complaint. It added:
In the instant case, since what remains of the complaint
which is hypothetically admitted, is only the allegation
on the reclassification of respondent's cigarettes, there
will not be enough facts for the court to render a valid
judgment according to the prayer in the complaint.
25 Fluor Daniel, Inc. Philippinesv. EB. Villarosa & Partners Co., Ltd., G.R.
No. 159648, 27 July 2008.
634 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON ToRTS AND QuASI-DEICs
At closer inspection, it would seem then that what

Court found fault in was not the non-allegation of bad
faith but the failure to allege any injury on the part of
Fortune. Had Fortune alleged bad faith, it would also
be a conclusion of law, not unless they could point to
specific facts supporting such allegation of bad faith.
But even if it did so, the Court's argument for
granting the motion to dismiss would still stand
because there is still no allegation of a specific injury
on the part of Fortune. So the problem really was the
non-allegation of any injury suffered by Fortune. It
seems that Fortune was being required to have
alleged specific facts which would support the con-
clusion that its property was taken without due
process of law or that it suffered unequal protection
under the law.
Even assuming that the Court was correct in implying

that bad faith is required to be alleged in the com-
plaint in this case, although based on Article 32 of the
Civil Code, the Court never explicitly reversed the
settled doctrine that bad faith is not an element in the
action under Article 32. It may be said that because of
the peculiar circumstances of this case, the Court
merely held that in this case an allegation of bad faith
was essential. Therefore, this case should not be used
as an authority for arguing that bad faith must be
alleged in actions based on Article 32 of the Civil
Code.
In this case, the Court further argued that "in an

action for damages under Article 32 of the Civil Code
premised on violation of due process, it may be
INDEPDENTCMLACTIONS I 635
necessary to harmonize the Civil Code provision with

subsequent legislative enactments, particularly those
related to taxation and tax collection." It added:
Judicial notice may be taken of the provisions of the

National Internal Revenue Code, as amended, and of the
law creating the Court of Tax Appeals. Both statutes
provide ample remedies to aggrieved taxpayers; reme-
dies which, in fact, were availed of by the respondent-
without even having to pay the assessment under
protest...
The availability of the remedies against the assailed

administrative action, the opportunity to avail of the
same, and actual recourse to these remedies, contradict
the respondent's claim of due process infringement.
(emphasis supplied)
This reasoning is peculiar. It says that if there is a

remedy available to the injured and that such remedy
is taken, there can be no violation of a right to due
process. But should the violator of a constitutional
right evade liability because the injured party has a
remedy?
The ponente then identified U.S. law, which it believed

to be comparable to Article 32:
42 U.S. Code 1983, a provision incorporated into the

Civil Rights Act of 1871, presents a parallel to our own
Article 32 of the Civil Code, as it states:
Every person who, under color of any statute,

ordinance, regulation, custom, usage, or any State or
Territory, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges or immunities secured by the Constitution
636 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUAS%-DEuCTS
and laws, shall be liable to the party injured in an

action at law, suit in equity or other proper proceed-
ing for redress.
This provision has been employed as the basis of tort

suits by many petitioners intending to win liability cases
against government officials when they violate the
constitutional rights of citizens.
The Court then discussed U.S. jurisprudence begin-

ning with Webster Bivens v. Six Unknown Named Agents
of Federal Bureau of Investigation, which ruled that a
victim was entitled to recover money damages for any
injuries suffered as a result of flagrant and unconsti-
tutional abuses of administrative power. The Court
further noted that a number of subsequent decisions
have upheld Bivens. But it also noted that it was
extremely dubious whether a Bivens action against
government tax officials and employees may prosper,
if we consider the pronouncement of the U.S.
Supreme Court in Schweiker v. Chilicky, that a Bivens
remedy will not be allowed when other "meaningful
safeguards or remedies for the rights of persons
situated as (is the plaintiff)" are available. It cited
other U.S. cases to support this view.
Essentially, what the Court did was compare Article

32 to a Bivens action in the United States. Then it cited
U.S. case law ruling that a Bivens action was not
allowed when there are other remedies available,
particularly in tax cases. It seems the Court was
implying that administrative remedies must first be
exhausted before an action on Article 32 can be made.
INDEPNDENT CL ATIONs I 637
Two observations may be made regarding this. First,

the entire discussion on the Bivens action may be
considered as obiter dictum as the Court had, prior to
this, made a ruling on the propriety of dismissal of the
complaint. Second, applying U.S. case law on a statute
not identical nor connected to Article 32 to interpret
the application of the latter is obviously not proper.
The reliance on U.S. common law as an aid to inter-
pretation was certainly not called for, considering that
what is involved is a clear civil code provision with an
established legislative intent and settled jurispru-
dence. Furthermore, to require exhaustion of all
administrative remedies before the filing of an Article
32 action runs counter to the rationale behind the
provision, which is the protection of civil and political
rights enshrined under the Philippine constitution.
It must be noted that the Court still made another

argument after this. It cited Section 227, Republic Act
No. 8424 (Tax Reform Act of 1997), which provides:
Section 227. Satisfaction of Judgment Recovered Against any
Internal Revenue Officer. -When an action is brought
against any Internal Revenue officer to recover damages
by reason of any act done in the performance of official
duty, and the Commissioner is notified of such action in
time to make defense against the same, through the
Solicitor General, any judgment, damages or costs reco-
vered in such action shall be satisfied by the Commis-
sioner, upon approval of the Secretary of Finance, or if
the same be paid by the person sued shall be repaid or
reimbursed to him.
No such judgment, damages or costs shall be paid or

reimbursed in behalf of a person who has acted
negligently or in bad faith, or with willful oppression.
638 I ANALYSIS OF PHIIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASi-DEUCTS
The Court argued that because Fortune's complaint

did not impute negligence or bad faith, any money
judgment by the trial court against Vinzons-Chato
will have to be assumed by the Republic of the
Philippines. As such, the complaint is in the nature of
a suit against the State. Nevertheless, it must be
remembered that Vinzons-Chato was sued in her
personal capacity. When a public officer is sued under
Article 32, it is not a suit against the State but against
the public officer as an individual. Any reliance on the
quoted tax code provision would therefore be
inappropriate.
B. DEFAMATION, FRAUD, AND PHYSICAL INJURIES
Article 33 provides that in cases of defamation, fraud,

and physical injuries, a civil action for damages, en-
tirely separate and distinct from the criminal action,
may be brought by the injured party. Such civil action
shall proceed independently of the criminal prose-
cution, and shall require only a preponderance of
evidence.
1. In General
The Court has described the civil action under Article

33 as arising ex-delicto.26 This means that it is an action
based on an obligation created by or arising from a
crime. 27 ThUS, if the three actions listed under Article
33 are considered torts, then it is an example of torts
that are also necessarily crimes.
26 Madeja v. Caro, G.R. No. L-51183, 21 December 1983.

27
People v. Garcia,G.R. Nos. L-45280-81, 11 June 1981.
INDEPENDENT CML ACTIONS 639
In Madea v. Caro,28 three reasons were given to justify

this characterization.
First, the Court said that its ex-delicto nature is mani-

fest from the provision, which uses the expressions
"criminal action" and "criminal prosecution."
Second, it cited the Comment of Code Commission:

The underlying purpose of the principle under consi-
deration is to allow the citizen to enforce his rights in a
private action brought by him, regardless of the action
of the State attorney. It is not conducive to civic spirit
and to individual self-reliance and initiative to habituate
the citizens to depend upon the government for the
vindication of their own private rights. It is true that in
many of the cases referred to in the provision cited, a
criminal prosecution is proper, but it should be remem-
bered that while the State is the complainant in the
criminal case, the injured individual is the one most
concerned because it is he who has suffered directly. He
should be permitted to demand reparation for the wrong
which peculiarly affects him. (emphasis supplied)
Third, it cited Tolentino:

The general rule is that when a criminal action is insti-
tuted, the civil action for recovery of civil liability arising
from the offense charged is impliedly instituted with the
criminal action, unless the offended party reserves his
right to institute it separately; and after a criminal action
has been commenced, no civil action arising from the
same offense can be prosecuted. The present article
creates an exception to this rule when the offense is
defamation, fraud, or physical injuries. In these cases, a
civil action may be filed independently of the criminal
28 Madeja v. Caro, G.R. No. L-51183, 21 December 1983.

640 1 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON ToTS AND QUASDELICTS
action, even if there has been no reservation made by

the injured party; the law itself in this article makes
such reservation; but the claimant is not given the right
to determine whether the civil action should be
scheduled or suspended until the criminal action has
been terminated. The result of the civil action is thus
independent of the result of the criminal action.29
(emphasis supplied)
Essentially, an action based on Article 33 requires

proving the elements of the crime in the context of a
civil action. But while the act complained of may
constitute a crime, "Article 33 contemplates a civil
action for the recovery of damages that is entirely
unrelated to the purely criminal aspect of the case. ' %
Therefore, even if the accused is acquitted in the
criminal action, a civil action based on Article 33 for
the same act can still prosper.
2. Defamation
a. In General
The Court has defined defamation as "the offense of

injuring a person's character, fame or reputation
through false and malicious statements." 31 Citing
other common law authorities, the Court has ex-
plained:
It is that which tends to injure reputation or to diminish
the esteem, respect, good will or confidence in the
29
Cited in the case as 'I Civil Code, p. 144 (1974)."
30 Arafiles v. PhilippineJournalists,G.R. No. 150256, 25 March 2004 citing
Azucena v. Potenciano,G.RI No. L-14028 30 June 1962.
31 MVRS Publications v. Islamic DaWah, G.R. No. 135306, 28 January
2003, citing "Black's Law Dictionary (4th ed. 1951), 505."
INDEPENDENTCMLACnONS I 641
plaintiff or to excite derogatory feelings or opinions

about the plaintiff. It is the publication of anything
which is injurious to the good name or reputation of
another or tends to bring him into disrepute. Defa-
mation is an invasion of a relational interest since it
involves the opinion which others in the community
may have, or tend to have, of the plaintiff.32 (emphasis
supplied)
To determine whether certain utterances are defa-

matory, the words used should be construed in their
entirety and taken in their plain, natural and ordinary
meaning, as they would naturally be understood by
persons hearing or reading them, unless it appears
that they were used and understood in another
sense.33

that words which are merely insulting are not action-
able as libel or slander per se, and mere words of
general abuse however opprobrious, ill-natured, or
vexatious, whether written or spoken, do not constitute
a basis for an action for defamation in the absence of
an allegation for special damages. The fact that the
language is offensive to the plaintiff does not make it
actionable by itself.3 4 (citations omitted, emphasis
supplied)
32 Id.
33
Yudwngco v. The Manila Chronicle,G.R. No. 184315, 25 November 2009.
34 MVRS Publications v. Islamic DaWah, G.R. No. 135306, 28 January
2003.
642 I ANA.YSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUAsi-ELICTs
b. Libel
Pursuant to the Revised Penal Code:

A libel is a public and malicious imputation of a crime,
or of a vice or defect, real or imaginary, or any act,
omission, condition, status, or circumstance tending to
cause the dishonor, discredit, or contempt of a natural or
juridical person, or to blacken the memory of one who is
dead.35
The Court has ruled that the elements of libel are as

36
follows:
* an allegation or imputation of a discreditable

act or condition concerning another;
* publication of the imputation;
" identity of the person defamed; and
" existence of malice.
As to the requirement of publication, the Court has
ruled that "[ilibel is published not only when it is
widely circulated, but also when it is made known or
brought to the attention or notice of another person
other than its author and the offended party.137
The Court has ruled that "[iun actions for damages for
libel, it is axiomatic that the published work alleged to
35
Article 353, Revised Penal Code.
36 GMA Network v. Bustos, G.R. No. 146848,17 October 2006; Daez v. CA,
G.R. No. 47971,31 October 1990.
37
Yuchengco v. Manila Chronicle,G.R. No. 184315,25 November 2009.
INDEPENDENTrCMLACTIONS I 643
contain libelous material must be examined and

viewed as a whole."3
In Arafiles v. Phil Journalists,39 Romy Morales, a

reporter of People's Journal Tonight, was at the
Western Police District Headquarters when Emelita
Despuig, an employee of the National Institute of
Atmospheric Sciences ("NIAS"), lodged a Complaint
against Catalino Arafiles, a NIAS director, for Forcible
Abduction with Rape and Forcible Abduction with
Attempted Rape before then on-duty Patrolman
Benito Chio. In the presence of Morales, Emelita exe-
cuted a sworn statement narrating the events sur-
rounding the reported offenses committed against her
by Arafiles. Afterwards, Morales personally inter-
viewed Emelita for the purpose of reporting the same
in the next issue of People's Journal Tonight. Accord-
ing to Morales, he tried to contact Arafiles at the NIAS
office to verify Emelita's story but failed, the office
having already dosed. Morales then wrote an account
about Emelita's complaint and submitted it to his
editor. That same day, Morales' report appeared as
headline on People's Journal Tonight reading "GOV'T
EXEC RAPES COED."
About a year following the publication of above-

quoted report, Arafiles instituted a complaint against
Philippine Journalists, Inc., Romy Morales, Max Buan,
Jr., and Manuel Villareal, Jr. ("Respondents") for
38 Arafiles v. PhilippineJournalists,citing Bulletin Publishing Corp. v. Noel,

167 SCRA 255, 261 (1988); Quisumbing v. Lopez, et al, G.R. No. L-6465,
31 January 1955; Jimenez v. Reyes, G.R. No. 8227,9 March 1914.
39
Arafiles v. Phil Journalists,G.R. No. 150256,25 March 2004.
644 1 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON ToRTs AND QUAsi-DELCTS
damages. He alleged that on account of the "grossly

malicious and overly sensationalized reporting in the
news item" prepared by Morales, edited by Buan, Jr.,
allowed for publication by Villareal, Jr. as president of
Philippine Journalists, Inc., and published by Philip-
pine Journalists, Inc., aspersions were cast on his
character, his reputation as a director of the NIAS at
the PAGASA was injured, he became the object of
public contempt and ridicule as he was depicted as a
sex-crazed stalker and serial rapist, and the news item
deferred his promotion to the position of Deputy
Administrator of PAGASA. The Respondents prayed
for the dismissal of the complaint, alleging that "the
news item, having been sourced from the Police
Blotter which is an official public document and
bolstered by a personal interview of the victim is
therefore privileged and falls within the protective
constitutional provision of freedom of the press." The
trial court ruled in favor of Arafiles but the appellate
court reversed this ruling, citing Borjal et al. v. Court of
Appeals et al.,4° which held that:
The doctrine of fair comment means that while in
general every discreditable imputation publicly made is
deemed false, because every man is presumed innocent
until his guilt is judicially proved, and every false
imputation is deemed malicious, nevertheless, when the
discreditable imputation is directed against a public
person in his public capacity, it is not necessarily
actionable. In order that such discreditable imputation to a
public official may be actionable, it must either be a Jalse
allegationoffact or a comment based on a false supposition. If
the comment is an expression of opinion, based on established
4
o Boral et al. v. Courtof Appeals et al, G.R. No. 126466,14 January 1999.
INDEPENDTCMLACTIONs I 645
facts, then it is immaterial that the opinion happens to be

mistaken, as long as it might be reasonably inferredfrom the
ficts. 41 (emphasis by the Court)
The Court explained that Artide 33 contemplates a

civil action for the recovery of damages that is entirely
unrelated to the purely criminal aspect of the case. It
said that a civil action for libel under this article is
instituted and prosecuted to final judgment and
proved by preponderance of evidence separately from
and entirely independent of the institution, pendency
or result of the criminal action because it is governed
by the provisions of the New Civil Code and not by
the Revised Penal Code governing the criminal
offense charged and the civil liability arising there-
from.42
The Court explained that "[iun actions for damages for

libel, it is axiomatic that the published work alleged to
contain libelous material must be examined and
viewed as a whole." It added:
The article must be construed as an entirety including
the headlines, as they may enlarge, explain, or restrict or
be enlarged, explained or strengthened or restricted by
the context. Whether or not it is libelous, depends upon
the scope, spirit and motive of the publication taken in
its entirety...
A publication claimed to be defamatory must be read

and construed in the sense in which the readers to
41Id.
42
This means that while plaintiffs of actions based on Article 33 are
required to prove the elements of the crime (i.e. in this case libel) the
quantum of proof required is not proof beyond reasonable doubt but
merely preponderance of evidence.
646 1 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTs AND QUASI-DELICTS
whom it is addressed would ordinarily understand it.

So, the whole item, including display lines, should be
read and construed together, and its meaning and
signification thus determined.
In order to ascertain the meaning of a published article,

the whole of the article must be considered, each phrase
must be construed in the light of the entire publication...
The headlines of a newspaper must also be read in
connection with the language which follows. (emphasis
supplied)
Arafiles argued that the news item was a "malicious

sensationalization" of a patently embellished and sala-
cious narration of fabricated facts involving rape and
attempted rape incidents because the police blotter,
which was the sole basis for the news item, plainly
showed that there was only one count of abduction
and rape reported by Emelita.
The Court found that the entry made by Patrolman

Chio in the police blotter recorded Emelita's com-
plaint for one case for abduction with rape which
occurred on March 14, 1987. But in her sworn
statement, earlier given before the same Patrolman
Chio in the presence of Morales who subsequently
interviewed her, Emelita reported about an abduction
with rape incident which occurred on March 14, 1987
and an abduction incident which occurred on April
13, 1987.
The Court ruled that the presentation of the news item

may have been in a sensational manner, but it was not
per se illegal. It also said:
INDEPENDENTCMLACIOiNS 1 647
Respondents could of course have been more cir-

cumspect in their choice of words as the headline and
first seven paragraphs of the news item give the
impression that a certain director of the NIAS actually
committed the crimes complained of by Emelita. The
succeeding paragraphs (in which petitioner and com-
plainant Emelita were eventually identified) sufficiently
convey to the readers, however, that the narration of
events was only an account of what Emelita had
reported at the police headquarters.
But it reiterated that:

In determining the manner in which a given event
should be presented as a news item and the importance
to be attached thereto, newspapers must enjoy a certain
degree of discretion.
The Court quoted from Quisumbing v. Lopez, 43

Every citizen of course has the right to enjoy a good
name and reputation, but we do not consider that the
respondents, under the circumstances of this case, had
violated said right or abused the freedom of the press.
The newspapers should be given such leeway and tole-
rance as to enable them to courageously and effectively
perform their important role in our democracy. In the
preparation of stories, press reporters and [editors]
usually have to race with their deadlines; and consis-
tently with good faith and reasonable care, they should
not be held to account, to a point of suppression, for
honest mistakes or imperfection in the choice of
words.44 (emphasis supplied)
3 Quisumbing v. Lopez, G.R. No. L-6465, 31 January 1955.

Q
" Id.
648 1 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QuAsI-DELIcTS
In MVRS Publications, Inc. v. Islamic,45 the Islamic

Da'wah Council of the Philippines, Inc., a local fede-
ration of more than 70 Muslim religious organizations
and individual Muslims, filed a complaint for da-
mages in their own behalf and as a class suit against
MVRS Publications Inc., Mars Laconsay, Myla Aguja
and Agustino Binegas, Jr., arising from an article
published in Bulgar, a daily tabloid, which allegedly
contained a libelous statement that alluded to the pig
as the god of the Muslims. The trial court dismissed
the complaint because the persons allegedly defamed
by the article were not specifically identified. The
appellate court reversed the decision.
The Court, employing common law authorities,

defined what defamation is and what it involves:
Defamation, which includes libel and slander, means the
offense of injuring a person's character, fame or
reputation through false and malicious statements. It is
that which tends to injure reputation or to diminish the
esteem, respect, good will or confidence in the plaintiff
or to excite derogatory feelings or opinions about the
plaintiff. It is the publication of anything which is
injurious to the good name or reputation of another or
tends to bring him into disrepute. Defamation is an
invasion of a relational interest since it involves the
opinion which others in the community may have, or
tend to have, of the plaintiff. (citations omitted, emphasis
supplied)
The Court reiterated "that words which are merely

insulting are not actionable as libel or slander per se,
and mere words of general abuse however oppro-
45MVRS Publications,Inc. v. Islamic, G.R. No. 135306, 28 January 2003.

INDEPENDENT CMLACTIONS I 649
brious, ill-natured, or vexatious, whether written or

spoken, do not constitute a basis for an action for
defamation in the absence of an allegation for special
damages" and that "[t]he fact that the language is
offensive to the plaintiff does not make it actionable
by itself."
Regarding declarations made against a large class of

people, it explained:
Declarations made about a large class of people cannot
be interpreted to advert to an identified or identifiable
individual. Absent circumstances specifically pointing or
alluding to a particular member of a class, no member of
such class has a right of action without at all impairing
the equally demanding right of free speech and
expression, as well as of the press, under the Bill of
Rights. (citations omitted).
The Court cited Newsweek, Inc. v. Intermediate Appellate

Court:46
...where the defamation is alleged to have been

directed at a group or class, it is essential that the
statement must be so sweeping or all-embracing as to
apply to every individual in that group or class, or
sufficiently specific so that each individual in the class
or group can prove that the defamatory statement
specifically pointed to him, so that he can bring the
action separately, if need be ... The case at bar is not a
class suit. It is not a case where one or more may sue for
the benefit of all, or where the representation of class
interest affected by the judgment or decree is indis-
pensable to make each member of the class an actual
party. We have here a case where each of the plaintiffs
has a separate and distinct reputation in the community.
46 Newsweek v. LAC, G.R. No. L-63559, 30 May 1986.

650 1 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON ToRTs AND QUASi-DEUCTS
They do not have a common or general interest in the

subject matter of the controversy. 47 (emphasis supplied)
In this case, the Court found that "there was no fairly

identifiable person who was allegedly injured by the
Bulgar article." It said that because the persons
allegedly defamed could not be identifiable, the
respondents did not have individual causes of action.
Therefore, they could not sue for a class allegedly
disparaged. It explained that the respondents must
have a cause of action in common with the class to
which they belong to in order for the case to prosper.
It expounded on this by stating:
An individual Muslim has a reputation that is personal,

separate and distinct in the community. Each Muslim, as
part of the larger Muslim community in the Philippines
of over five million people, belongs to a different trade
and profession; each has a varying interest and a
divergent political and religious view-some may be
conservative, others liberal. A Muslim may find the
article dishonorable, even blasphemous; others may find
it as an opportunity to strengthen their faith and educate
the non-believers and the "infidels." There is no injury to
the reputation of the individual Muslims who constitute
this community that can give rise to an action for group
libel. Each reputation is personal in character to every
person. Together, the Muslims do not have a single
common reputation that will give them a common or
general interest in the subject matter of the controversy.
The Court cited Arcand v. The Evening Call Publishing

Company,48 where the United States Court of Appeals
47Id "
4
8Arcand v. Te Evening Call Publishing Company 567 F. 2d 1163, 1164
(1977).
INDEPENDENTCMLACnONS 1 651
"held that one guiding principle of group libel is that

defamation of a large group does not give rise to a
cause of action on the part of an individual unless it
can be shown that he is the target of the defamatory
matter."
The Court explained that "[t]he rule on libel has been

restrictive." To illustrate, it said:
In an American case, a person had allegedly committed
libel against all persons of the Jewish religion. The Court
held that there could be no libel against an extensive
community in common law. In an English case, where
libel consisted of allegations of immorality in a Catholic
nunnery, the Court considered that if the libel were on
the whole Roman Catholic Church generally, then the
defendant must be absolved. With regard to the largest
sectors in society, including religious groups, it may be
generally concluded that no criminal action at the behest
of the state, or civil action on behalf of the individual,
will lie.
In another case, the plaintiffs claimed that all Muslims,

numbering more than 600 million, were defamed by the
airing of a national television broadcast of a film
depicting the public execution of a Saudi Arabian
princess accused of adultery, and alleging that such film
was "insulting and defamatory" to the Islamic religion.
The United States District Court of the Northern District
of California concluded that the plaintiffs' prayer for $20
Billion in damages arising from "an international cons-
piracy to insult, ridicule, discredit and abuse followers of
Islam throughout the world, Arabs and the Kingdom of
Saudi Arabia" bordered on the "frivolous," ruling that
the plaintiffs had failed to demonstrate an actionable
claim for defamation. The California Court stressed that
the aim of the law on defamation was to protect
individuals; a group may be sufficiently large that a
652 I ANLYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QuAsi-DELicTs
statement concerning it could not defame individual

group members.
Philip Wittenberg, in his book "Dangerous Words: A

Guide to the Law of Libel," discusses the inappro-
priateness of any action for tortious libel involving large
groups, and provides a succinct illustration:
There are groupings which may be finite enough so

that a description of the body is a description of the
members. Here the problem is merely one of
evaluation. Is the description of the member implicit
in the description of the body, or is there a possibility
that a description of the body may consist of a variety
of persons, those included within the charge, and
those excluded from it?
A general charge that the lawyers in the city are

shysters would obviously not be a charge that all of
the lawyers were shysters. A charge that the lawyers
in a local point in a great city, such as Times Square in
New York City, were shysters would obviously not
include all of the lawyers who practiced in that
district; but a statement that all of the lawyers who
practiced in a particular building in that district were
shysters would be a specific charge, so that any
lawyer having an office within that building could
sue. (citations omitted)
Thus, the Court explained that:
If the group is a very large one, then the alleged

libelous statement is considered to have no application
to anyone in particular, since one might as well defame
all mankind. Not only does the group as such have no
action; the plaintiff does not establish any personal
reference to himself. At present, modern societal groups
are both numerous and complex. The same principle
follows with these groups: as the size of these groups
increases, the chances for members of such groups to
recover damages on tortious libel become elusive. This
IDEPENDENT CML ACOnS I 653
principle is said to embrace two important public

policies: first, where the group referred to is large, the
courts presume that no reasonable reader would take the
statements as so literally applying to each individual
member; and second, the limitation on liability would
satisfactorily safeguard freedom of speech and express-
ion, as well as of the press, effecting a sound compromise
between the conflicting fundamental interests involved
in libel cases. (citations omitted, emphasis supplied)
The Court ruled that "the Muslim community is too

vast as to readily ascertain who among the Muslims
were particularly defamed." It added:
The size of the group renders the reference as indeter-
minate and generic as a similar attack on Catholics,
Protestants, Buddhists or Mormons would do. The word
"Muslim" is descriptive of those who are believers of
Islam, a religion divided into varying sects, such as the
Sunnites, the Shiites, the Kharijites, the Sufis and others
based upon political and theological distinctions.
"Muslim" is a name which describes only a general
segment of the Philippine population, comprising a
heterogeneous body whose construction is not so well
defined as to render it impossible for any repre-
sentative identification.
The Christian religion in the Philippines is likewise

divided into different sects: Catholic, Baptist, Episco-
palian, Presbyterian, Lutheran, and other groups the
essence of which may lie in an inspired charlatan, whose
temple may be a comer house in the fringes of the
countryside. As with the Christian religion, so it is with
other religions that represent the nation's culturally
diverse people and minister to each one's spiritual
needs. The Muslim population may be divided into
smaller groups with varying agenda, from the prayerful
conservative to the passionately radical. These divisions
in the Muslim population may still be too large and
654 1 ANALYSIS OF PHILIPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASIDELICTS
ambiguous to provide a reasonable inference to any

personality who can bring a case in an action for libel.
(emphasis supplied)
The Court concluded that:

the statements published by petitioners in the instant
case did not specifically identify nor refer to any
particular individuals who were purportedly the subject
of the alleged libelous publication. Respondents can
scarcely claim to having been singled out for social
censure pointedly resulting in damages.
In Yuchengco v. Manila Chronicle,49 Alfonso Yuchengco

alleged that Chronicle Publishing published defa-
matory articles against him in Manila Chronicle. He
cited two articles wherein he was imputed to be a
"Marcos crony," a dummy for Marcos and Benjamin
Romualdez in Benguet Corporation, and was accused
of unsound and immoral business practices, among
others. Yuchengco filed a complaint for damages. The
trial court ruled in favor of Yuchengco while the
appellate court at first affirmend but later reversed the
decision.
The Court began by explaining the connection bet-

ween "Libel" as a criminal offense and "Defamation"
as a civil action. It said that although "Libel" is
defined in the Revised Penal Code, it can also be
instituted as a purely civil action, the cause of action
for which is provided by Article 33 of the Civil Code,
which provides:
49
Yuchengco v. Manila Chronicle,G.R No. 184315,25 November 2009.
INDEPENDENT CML AcTIONs I 655
Article 33. In cases of defamation, fraud, and physical

injuries, a civil action for damages, entirely separate and
distinct from the criminal action, may be brought by the
injured party. Such civil action shall proceed inde-
pendently of the criminal prosecution, and shall require
only a preponderance of evidence.
It further explained that the elements of libel were

adopted in a purely civil action for damages. It quoted
from GMA Network, Inc. v. Bustos:5°
An award of damages under the premises presupposes
the commission of an act amounting to defamatory
imputation or libel, which, in turn, presupposes malice.
Libel is the public and malicious imputation to another
of a discreditable act or condition tending to cause the
dishonor, discredit, or contempt of a natural or juridical
person. Liability for libel attaches present the following
elements: (a) an allegation or imputation of a discre-
ditable act or condition concerning another; (b) publi-
cation of the imputation; (c) identity of the person
defamed; and (d) existence of malice.
It explained that of the four elements, the most

apparent this case would be the publication of the
alleged imputation. It said:
Libel is published not only when it is widely circulated,

but also when it is made known or brought to the
attention or notice of another person other than its
author and the offended party. The circulation of an
allegedly libelous matter in a newspaper is certainly
sufficient publication. (citation omitted)
5o GMA Network, Inc. v. Bustos, G.R. No. 146848,17 October 2006.

Thus the Court was left with the determination of the

existence of the three remaining elements of libel,
namely:
(1) the defamatory imputation;

(2) the identity of the person defamed; and
(3) the existence of malice.
Regarding defamation, the Court said:

Defamation, which includes libel and slander, means the
offense of injuring a person's character, fame or repu-
tation through false and malicious statements. It is that
which tends to injure reputation or to diminish esteem,
respect, goodwill or confidence in the plaintiff, or to
excite derogatory feelings or opinions about the plaintiff.
It is the publication of anything that is injurious to the
good name or reputation of another or tends to bring
him into disrepute. In determining whether certain
utterances are defamatory, the words used are to be
construed in their entirety and taken in their plain,
natural and ordinary meaning, as they would naturally
be understood by persons hearing (or reading, as in libel)
them, unless it appears that they were used and
understood in another sense. (citations omitted)
The Court quoted from United States v. Sotto:5 1
[Flor the purpose of determining the meaning of any

publication alleged to be libelous "that construction must
be adopted which will give to the matter such a meaning
as is natural and obvious in the plain and ordinary sense
in which the public would naturally understand what
was uttered. The published matter alleged to be libelous
must be construed as a whole. In applying these rules to
the language of an alleged libel, the court will disregard
51United States v. Sotto, G.R. No. 13990,24 September 1918.

INDefN CmL ACnotsI 657
any subtle or ingenious explanation offered by the

publisher on being called to account. The whole
question being the effect the publication had upon the
minds of the readers, and they not having been assisted
by the offered explanation in reading the article, it
comes too late to have the effect of removing the sting,
if any there be, from the word used in the publi-
cation."5 2 (Emphasis by the Court)
The Court agreed with the lower courts that the

phrase "Marcos crony" was derogatory. It found that
"even a cursory reading of the subject articles would
show the intention of the writers to injure the repu-
tation, credit and virtue of Yuchengco and expose him
to public hatred, discredit, contempt and ridicule." It
also found that the "indirect manner in which the
articles attributed the insults to Yuchengco (e.g., "the
money involved came from depositors, and not from
Yuchengco") does not lessen the culpability of the
writers and publishers thereof, but instead makes the
defamatory imputations even more effective." Citing
another case, it said:
Words calculated to induce suspicion are sometimes

more effective to destroy reputation than false charges
directly made. Ironical and metaphorical language is a
favored vehicle for slander. 3
As to identification, the Court said:
Defamatory words must refer to an ascertained or

ascertainable person, and that person must be the
plaintiff. Statements are not libelous unless they refer to
52 Id.
53The case cited was United States v. O'Connell, G.R. No. L-13173, 11
March 1918.
658 1 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QuASi-OELiCTS
an ascertained or ascertainable person. However, the

obnoxious writing need not mention the libeled party by
name. It is sufficient if it is shown that the offended party
is the person meant or alluded to. (citations omitted)
In this case, the Court found that all but one of the
subject articles explicitly mentioned the name of Yu-
chengco. The lone article, "Bank runs & RCBC free
loans," which does not mention Yuchengco at all,
nevertheless chided the owners of RCBC. However,
the Court said that it was not necessary to identify
Yuchengco in that article because the other subject
articles, published a few days before and after this
one, had already referred to Yuchengco as the owner
of RCBC. Thus, the Court held that Yuchengco was
clearly identified as the libeled party in the subject
defamatory imputations.
As to malice, the Court said:

Malice connotes ill will or spite and speaks not in
response to duty but merely to injure the reputation of
the person defamed, and implies an intention to do
ulterior and unjustifiable harm. It is present when it is
shown that the author of the libelous remarks made such
remarks with knowledge that it was false or with
reckless disregard as to the truth or falsity thereof.
Malice, however, does not necessarily have to be proven.

There are two types of malice - malice in law and malice
in fact. Malice in law is a presumption of law. It
dispenses with the proof of malice when words that raise
the presumption are shown to have been uttered. It is
also known as constructive malice, legal malice, or
implied malice. On the other hand, malice in fact is a
positive desire and intention to annoy and injure. It may
denote that the defendant was actuated by ill will or
INDEPENDENT CMLACnONS I 659
personal spite. It is also called express malice, actual

malice, real malice, true malice, or particular malice.
(citations omitted)
The Court further explained:
In this jurisdiction, malice in law is provided in Article

354 of the Revised Penal Code, which also enumerates
exceptions thereto:
Art. 354. Requirement of publicity.-Every defamatory

imputation is presumed to be malicious, even if it be
true, if no good intention and justifiable motive for
making it is shown, except in the following cases:
1. A private communication made by any person to

another in the performance of any legal, moral or
social duty; and
2. A fair and true report, made in good faith, without
any comments or remarks, of any judicial,
legislative or other official proceedings which are
not of confidential nature, or of any statement,
report or speech delivered in said proceedings, or
of any other act performed by public officers in the
exercise of their functions.
There is, thus, a presumption of malice in the case of

every defamatory imputation, where there is no showing
of a good intention or justifiable motive for making such
imputation.
The exceptions provided in Article 354 are also known as

qualifiedly privileged communications. The enume-
ration under said article is, however, not an exclusive list
of qualifiedly privileged communications since fair com-
mentaries on matters of public interest are likewise
privileged. They are known as qualifiedly privileged
communications, since they are merely exceptions to the
general rule requiring proof of actual malice in order that
a defamatory imputation may be held actionable. In
other words, defamatory imputations written or uttered
during any of the three classes of qualifiedly privileged

communications enumerated above-(1) a private com-
munication made by any person to another in the
performance of any legal, moral or social duty; (2) a fair
and true report, made in good faith, without any
comments or remarks, of any judicial, legislative or other
official proceedings which are not of confidential nature,
or of any statement, report or speech delivered in said
proceedings, or of any other act performed by public
officers in the exercise of their functions; and (3) fair
commentaries on matters of public interest -may still be
considered actionable if actual malice is proven. This is
in contrast with absolutely privileged communications.
wherein the imputations are not actionable, even if
attended by actual malice:
A communication is said to be absolutely privileged

when it is not actionable, even if its author has acted
in bad faith. This class includes statements made by
members of Congress in the discharge of their
functions as such, official communications made by
public officers in the performance of their duties, and
allegations or statements made by the parties or their
counsel in their pleadings or motions or during the
hearing of judicial proceedings, as well as the answers
given by witnesses in reply to questions propounded
to them, in the course of said proceedings, provided
that said allegations or statements are relevant to the
issues, and the answers are responsive or pertinent to
the questions propounded to said witnesses. Upon the
other hand, conditionally or qualifiedly privileged
communications are those which, although containing
defamatory imputations, would not be actionable
unless made with malice or bad faith. (citations
omitted, emphasis by the Court)
The Court said that while there is an absolute bar to

an action in the case of absolutely privileged com-
munication, the same is not true with respect to quali-
fiedly privileged communication, wherein the law
INDEPENDENT CML ACTIONS I 661
merely raises a primafacie presumption in favor of the

occasion. It added:
In the former, the freedom from liability is absolute,

regardless of the existence of actual malice, as contrasted
with the freedom in the latter, where it is conditioned on
the want or absence of actual malice. Conditionally or
qualifiedly privileged communications are actionable
when made with actual malice.
When malice in fact is proven, assertions and proofs that

the libelous articles are qualifiedly privileged commu-
nications are futile, since being qualifiedly privileged
communications merely prevents the presumption of
malice from attaching to a defamatory imputation.
(citation omitted)
The Court ruled the failure to present evidence.

showing that they verified the truth of any of the
subject articles was fatal to their cause. It cited In re:
Emil P. Jurado,5 4 where the Court ruled that "catego-
rical denials of the truth of allegations in a publication
place the burden upon the party publishing it, either
of proving the truth of the imputations or of showing
that the same was an honest mistake or error commit-
ted despite good efforts to arrive at the truth." It
added:
There is actual malice when there is either (1) knowledge

of the publication's falsity; or (2) reckless disregard of
whether the contents of the publication were false or not.
Failure to even get the side of Yuchengco in the
published articles clearly constituted reckless disregard
of the truth or falsity of said articles. (citation omitted)
54
In re: Emil P. Jurado, A.M. No. 93-2-037 SC, 6 April 1995.
The Court argued that even if actual malice was not

proven, the Court could not adhere to the finding of
the appellate court that the subject articles were fair
commentaries on matters of public interest, and thus
fell within the scope of the third type of qualifiedly
privileged communications. It explained:
In PhilippineJournalists, Inc. (People's Journal) v. Theonen,
this Court adopted the pronouncement in the United
States Decision in Gertz v. Robert Welsch, Inc. that, in
order to be considered as fair commentaries on matters
of public interest, the individual to whom the
defamatory articles were imputed should either be a
public officer or a public figure:
In Borja/ v. Court of Appeals, we stated that "the

enumeration under Art. 354 is not an exclusive list of
qualifiedly privileged communications since fair com-
mentaries on matters of public interest are likewise
privileged. We stated that the doctrine of fair com-
mentaries means "that while in general every discre-
ditable imputation publicly made is deemed false,
because every man is presumed innocent until his
guilt is judicially proved, and every false imputation
is deemed malicious, nevertheless, when the discre-
ditable imputation is directed against a public person
in his public capacity, it is not necessarily actionable.
In order that such discreditable imputation to a public
official may be actionable, it must either be a false
allegation of fact or a comment based on a false
supposition."
Again, this argument is unavailing to the petitioners.

As we said, the respondent is a private individual,
and not a public official or public figure. We are
persuaded by the reasoning of the United States
Supreme Court in Gertz v. Robert Welch, Inc., that a
newspaper or broadcaster publishing defamatory
falsehoods about an individual who is neither a
public official nor a public figure may not claim a
constitutional _rIvilege against liability, for injury
INDEPENDENTCMLACTONS 1663
inflicted, even if the falsehood arose in a discussion

of public interest. (emphasis by the Court, citations
omitted)
The Court found that in trying to prove that the

subject articles delved on matters concerning public
interest, the appellate court insisted that Yuchengco
was a public official or public figure, who "must not
be too thin-skinned with reference to comment upon
his official acts," noted that Yuchengco was appointed
as a Presidential Adviser on Foreign Affairs with
Cabinet rank, and proceeded to enumerate the public
positions held by Yuchengco through the years.
However, the Court pointed out that the subject

articles pertain to Yuchengco's private business en-
deavors and do not refer to his duties, functions and
responsibilities as a Philippine Ambassador to China
and Japan, or to any of the other public positions he
occupied. It said:
A topic or story should not be considered a matter of
public interest by the mere fact that the person involved
is a public officer, unless the said topic or story relates to
his functions as such. Assuming a public office is not
tantamount to completely abdicating one's right to
privacy. Therefore, for the purpose of determining
whether or not a topic is a matter of public interest,
Yuchengco cannot be considered a public officer.
The Court also ruled that Yuchengco was not a public

figure. Quoting from the PhilippineJournalistscase:55
55
PhilippineJournalistsv. Thonen, G.R. No. 143372,13 December 2005.
664 1 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QuASi-DELicTS
More commonly, those classed as public figures have

thrust themselves to the forefront of particular public
controversies in order to influence the resolution of the
issues involved. In either event, they invite attention
and comment. Third, this would impose an additional
difficulty on trial court judges to decide which publi-
cations address issues of "general interest" and which do
not. Even if the foregoing generalities do not obtain in
every instance, the communications media are entitled to
act on the assumption that public officials and public
figures have voluntarily exposed themselves to increased
risk of injury from defamatory falsehood concerning
them. No such assumption is justified with respect to a
private individual. He has not accepted public office or
assumed an "influential role in ordering society." (Curtis
Publishing Co. v. Butts, 388 U.S., at 164) He has relin-
quished no part of his interest in the protection of his
own good name, and consequently he has a more com-
pelling call on the courts for redress of injury inflicted by
defamatory falsehood. Thus, private individuals are not
only more vulnerable to injury than public officials and
public figures; they are also more deserving of recovery.
(emphasis by the Court, citations omitted)
The Court found no evidence that Yuchengco had

voluntarily thrust himself to the forefront of particular
public controversies in order to influence the reso-
lution of the issues involved. The Court held that
because Yuchengco was neither as public officer nor a
public figure, said articles cannot be considered as
qualifiedly privileged communications even if they
dealt with matters of public concern.
INDEPENDEN CMLACnONs 665
3. Fraud
The Court has ruled that Estafa falls under fraud in
6
Article 33.5
In Heirs of Simon v. Elvin Chan,5 7 the Court ruled that

there was no independent civil action to recover the
civil liability arising from the issuance of an unfunded
check prohibited and punished under Batas Pam-
bansa Blg. 22 ("BP 22"). In this case, the Office of the
City Prosecutor of Manila filed an information
charging the late Eduardo Simon with a violation of
BP 22. Three years later, Elvin Chan commenced a
civil action for the collection of the principal amount
of P336,000. The Metropolitan Trial Court dismissed
this complaint and was affirmed by the Regional Trial
Court. The Court of Appeals, however, reversed the
ruling. The issue before the Court was whether the
civil action to recover the amount of the unfunded
check was an independent civil action.
The Court ruled that there was no independent civil

action to recover the value of a bouncing check issued
in contravention of BP 22, citing Rule 111 of the Rules
of Court which provides in Section 1 (b) that:
The criminal action for violation of Batas Pambansa Big.
22 shall be deemed to necessarily include the corres-
ponding civil action, and no reservation to file such civil
action separately shall be allowed or recognized.
56
Prudent/a Bank v. AC, G.R No. 74886,8 December 1992.
57
Heirsof Simon v. Elvin Oum, G.R. No. 157547,23 February 2011.
666 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QuAsi-DECTs
The Court further explained the application of this

rule in this case:
The aforequoted provisions of the Rules of Court, even if
not yet in effect when Chan commenced Civil Case No.
915-00 on August 3, 2000, are nonetheless applicable. It is
axiomatic that the retroactive application of procedural
laws does not violate any right of a person who may feel
adversely affected, nor is it constitutionally objectio-
nable. The reason is simply that, as a general rule, no
vested right may attach to, or arise from, procedural
laws. Any new rules may validly be made to apply to
cases pending at the time of their promulgation, consi-
dering that no party to an action has a vested right in the
rules of procedure, except that in criminal cases, the
changes do not retroactively apply if they permit or
require a lesser quantum of evidence to convict than
what is required at the time of the commission of the
offenses, because such retroactivity would be unconsti-
tutional for being ex post facto under the Constitution.
Moreover, the application of the rule would not be

precluded by the violation of any assumed vested right,
because the new rule was adopted from Supreme Court
Circular 57-97 that took effect on November 1, 1997.
(citations omitted)
The Court cited Hyatt Industrial Manufacturing Corpo-

ration v. Asia Dynamic Electrix Corporation,58 which
explained the reason for the rule:
The foregoing rule was adopted from Circular No. 57-97
of this Court. It specifically states that the criminal action
for violation of BP 22 shall be deemed to include the
corresponding civil action. It also requires the com-
4 Hyatt Industrial Manufacturing Corporation v. Asia Dynamic Electrix

Corporation,G.R. No. 163597,29 July 2005.
INDENDNCMLACOINS I 667
plainant to pay in full the filing fees based on the amount

of the check involved. Generally, no filing fees are
required for criminal cases, but because of the inclusion
of the civil action in complaints for violation of BP 22, the
Rules require the payment of docket fees upon the filing
of the complaint. This rule was enacted to help declog
court dockets which are filled with BP 22 cases as
creditors actually use the courts as collectors. Because
ordinarily no filing fee is charged in criminal cases for
actual damages, the payee uses the intimidating effect
of a criminal charge to collect his credit gratis and
sometimes, upon being paid, the trial court is not even
informed thereof. The inclusion of the civil action in the
criminal case is expected to significantly lower the
number of cases filed before the courts for collection
based on dishonored checks. It is also expected to
expedite the disposition of these cases. Instead of
instituting two separate cases, one for criminal and
another for civil, only a single suit shall be filed and
tried. It should be stressed that the policy laid down by
the Rules is to discourage the separate filing of the civil
action. The Rules even prohibit the reservation of a
separate civil action, which means that one can no longer
file a separate civil case after the criminal complaint is
filed in court. The only instance when separate
proceedings are allowed is when the civil action is filed
ahead of the criminal case. Even then, the Rules
encourage the consolidation of the civil and criminal
cases. We have previously observed that a separate civil
action for the purpose of recovering the amount of the
dishonored checks would only prove to be costly,
burdensome and time-consuming for both parties and
would further delay the final disposition of the case. This
multiplicity of suits must be avoided. Where petitioners'
rights may be fully adjudicated in the proceedings before
the trial court, resort to a separate action to recover civil
liability is clearly unwarranted. In view of this special
rule governing actions for violation of BP 22, Article 31
668 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASi-DEICTS
of the Civil Code cited by the trial court will not apply to
the case at bar.59 (emphasis supplied)
The Court also clarified the distinction between filing

a case for Estafa and one for BP 22.
Although the Court has ruled that the issuance of a

bouncing check may result in two separate and distinct
crimes of estafa and violation of BP 22, the procedures
for the recovery of the civil liabilities arising from these
two distinct crimes are different and non-interchange-
able. In prosecutions of estafa, the offended party may
opt to reserve his right to file a separate civil action, or
may institute an independent action based on fraud
pursuant to Article 33 of the Civil Code, as DMPI
Employees has allowed. In prosecutions of violations of
BP 22, however, the Court has adopted a policy to
prohibit the reservation or institution of a separate civil
action to claim the civil liability arising from the issuance
of the bouncing check upon the reasons delineated in
Hyatt Industrial Manufacturing Corporation, supra.
To repeat, Chan's separate civil action to recover the

amount of the check involved in the prosecution for the
violation of BP 22 could not be independently main-
tained under both Supreme Court Circular 57-97 and the
aforequoted provisions of Rule 111 of the Rules of Court,
notwithstanding the allegations of fraud and deceit.
4. Physical Injuries
The Court has explained that the Code Commission

recommended that the civil action for physical injuries
be similar to the civil action for assault and battery in
American Law, and this recommendation must have
59d.
INDEPENDECML ACnONS 1669
been accepted by the Legislature when it approved

the article intact as recommended. 6°
Two questions have arisen in jurisprudence regarding

the coverage of physical injuriesunder Article 33.
The first question is whether or not the term covers

bodily injuries resulting in death. Jurisprudence
explains that defamation and fraud are used in their
ordinary sense in Article 33 because there are no
specific provisions in the Revised Penal Code using
these terms as means of offenses defined therein. 61
Thus, defamation and fraud must have been used not to
impart to them any technical meaning in the laws of
the Philippines but in their generic sense.62 Therefore,
this means that the term "physical injuries" could not
have been used in its specific sense as a crime defined
in the Revised Penal Code because it is difficult to
believe that the Code Commission would have used
terms in the same article -some in their general and
another in its technical sense. 63
Thus, physical injuries under Article 33 is understood

to mean "bodily injury."64
Furthermore, the Court has pointed out that if the

intent was to establish a civil action for the bodily
harm received by the complainant similar to the civil
action for assault and battery, the civil action should
60 Caradangv. Santiago, G.R. No. L-8238, 25 May 1955.

61Id.
62Id.
63 Id.
64Id.
670 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QuASi-DEUCTS
lie whether the offense committed is that of physical

injuries, or frustrated homicide, or attempted homi-
cide, or even death. 65 Otherwise put, the Court has
ruled that the term physical injuries in Article 33
includes bodily injuries causing death.66
The second question is whether physical injuries cover

acts committed through criminal negligence.
The Court has ruled that, criminal negligence, (i.e.

reckless imprudence) is not one of the three crimes
mentioned in Article 33 of the Civil Code which
authorizes the institution of an independent civil
action, that is, of an entirely separate and distinct civil
action for damages, which shall proceed indepen-
dently of the criminal prosecution and shall be proved
only by a preponderance of evidence. 67 It has further
ruled that Article 33 of the Civil Code assumes a
defamation, fraud, or physical injuries intentionally
committed, 68 thereby excluding acts committed via
negligence.
In Capuno v. Pepsi Cola,69 a Pepsi Cola truck driven by

Jon Elordi collided with a car driven by Cipriano
Capuno, resulting in the death of the latter and his
passengers, the Buan spouses. Elordi was charged
with triple Homicide through Reckless Imprudence,
6 Caradang v. Santiago, G.R. No. L-8238, 25 May 1955; Jervoso v. People,

G.R. No. 89306, 13 September 1990 and Madeja v. Caro G.R. No. L-
51183,21 December 1983, adds "consummated homicide."
6Capunov. Pepsi,G.R. No. L-19331, 30 April 1965.
6
7 Corss v. Paje, G.R. No. L-26737, 31 July 1969.
6Bonite v. Zosa, G.R. No. L-33772, 20 June 1988.
69
Capiuno v. Pepsi Cola, G.E. No. L-19331, 30 April 1965.
INDEPENDENrCMLACTIONS I 671
which included claims for damages of the heirs. While

the criminal case was pending, a civil case for
damages was filed by the Intestate Estate of the Buan
spouses and their heirs against Pepsi and Elordi. This
case ended in a compromise. During the pendency of
criminal case, the Capunos commenced a civil action
for damages against Pepsi and Elordi. Elordi was later
acquitted. The civil case was dismissed.
The Court held that the action was one for recovery of
damages based on a quasi-delict, which action must
be instituted within four years. The Court further
explained:
Appellants originally sought to enforce their claim ex-
delicto, that is, under the provisions of the Penal Code,
when they intervened in the criminal case against Elordi.
The information therein, it may be recalled, was
amended precisely to include an allegation concerning
damages suffered by the heirs of the victims of the
accident for which Elordi was being prosecuted. But
appellants' intervention was subsequently disallowed
and they did not appeal from the Court's order to that
effect. And when they commenced the civil action the
criminal case was still pending, showing that appellants
then chose to pursue the remedy afforded by the Civil
Code, for otherwise that action would have been
premature and in any event would have been concluded
by the subsequent judgment of acquittal in the criminal
case.
But the Court also said:

In filing, the civil action as they did appellants correctly
considered it as entirely independent of the criminal
action, pursuant to Articles 31 and 33 of the Civil Code,
which read:
672 ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUAS-DELICTS
ART. 31.When the civil action is based on an

obligation not arising from the act or omission
complained of as a felony, such civil action may
proceed independently of the criminal proceedings
and regardless of the result of the latter.
ART. 33. In cases of defamation, fraud, and physical

injuries, a civil action of damages, entirely separate
and distinct from the criminal action may be brought
by the injured party. Such civil action shall proceed
independently of the criminal prosecution, and shall
require only a preponderance of evidence.
The Court further explained that:
The term "physical injuries" in Article 33 includes

bodily injuries causing death .... In other words the civil
action for damages could have been commenced by
appellants immediately upon the death of their dece-
dent, Cipriano Capuno, on January 3, 1953 or there-
abouts, and the same would not have been stayed by the
filing of the criminal action for homicide through
reckless imprudence. But the complaint here was filed
only on September 26, 1958, or after the lapse of more
than five years.
In the case of Diocesa Paulan,et al. vs. Zacarias Sarabia,

this Court held that an action based on a quasi-delict is
governed by Article 1150 of the Civil Code as to the
question of when the prescriptive period of four years
shall begin to run, that is, "from the day (the action)
maybe brought" which means from the day the quasi-
delict occurred or was committed.
The foregoing considerations dispose of appellants'

contention that the four-year period of prescription in
this case was interrupted by the filing of the criminal
action against Jon Elordi inasmuch as they had neither
waived the civil action nor reserved the right to institute
it separately. Such reservation was not then necessary;
INDEPENDENTCMLACTONS I 673
without having made it they could file -as in fact they

did-a separate civil action even during the pendency of
the criminal case ... and consequently, as held in Paulan
vs. Sarabia, supra, "the institution of a criminal action
cannot have the effect of interrupting the institution of a
civil action based on a quasi-delict." (emphasis supplied,
citations omitted)
Interestingly, the Court characterized the case as one

for quasi-delict and thus applied the four-year
prescriptive period for such actions. Yet, it did not
discuss Article 2176 but Article 33, which admittedly
is not a quasi-delict.
In Corpus v. Paje,70 a Victory Liner bus driven by

Felardo Paje collided with a jeep driven by Clemente
Marcia, resulting in the latter's death and physical
injuries to two other persons. An information for
Homicide and double Serious Physical Injuries
through Reckless Imprudence was filed against Paje.
The heirs of Marcia reserved their right to institute a
separate civil action for damages. Paje was found
guilty. Paje appealed to the appellate court. While
Paje's appeal was pending, Marcia's heirs filed a
separate civil action for damages against Paje and
Victory Liner ("Defendants") based on Reckless
Imprudence. The appellate court acquitted Paje, fin-
ding that reckless imprudence did not exist. The
Defendants moved to dismiss the separate civil action
on ground that it was barred by acquittal. This motion
was denied but the trial court dismissed the complaint
on the ground that action has prescribed.
70 Corpus v. Paje, G.R. No. L-26737, 31 July 1969.

The Court affirmed the ruling of the trial court.
It ruled that the appellate court's acquittal of Paje was

on the ground that the reckless imprudence or
criminal negligence charged against him did not exist
and that the collision was a case of pure accident.
Since the civil action was based upon the same
criminal negligence of which Paje was acquitted in the
criminal action, the acquittal thus constituted a bar to
the civil action for damages. It added:
Criminal negligence, that is, reckless imprudence, is not
one of the three crimes mentioned in Article 33 of the
Civil Code which authorizes the institution of an
independent civil action, that is, of an entirely separate
and distinct civil action for damages, which shall
proceed independently of the criminal prosecution and
shall be proved only by a preponderance of evidence.
Said article mentions only the crimes of defamation,
fraud, (estafa) and physical injuries. Although in the case
of Dyogi, et al. vs. Yatco, et al., ..., this Court held that the
term "physical injuries" used in Article 33 of the Civil
Code includes homicide, it is to be borne in mind that
the charge against Felardo Paje was for reckless
imprudence resulting in homicide, and not for homicide
and physical injuries. In the case of People vs. Buan,... ,
Mr. Justice J.B.L. Reyes, speaking for the Supreme Court,
said that the "offense criminal negligence under Article
365 of the Revised Penal Code lies in the execution of an
imprudent or negligent act that, if intentionally done,
would be punishable as a felony. The law penalizes thus
the negligent or careless act, not the result thereof. The
gravity of the consequences is only taken into account to
determine the penalty; it does not qualify the substance
of the offense." It is, therefore, clear that the charge
against Felardo Paje was not for homicide but for reck-
less imprudence, that is, criminal negligence resulting in
homicide (death of Clemente Marcia) and double phy-
INDEPENDENTCMLACTIONS I 675
sical injuries suffered by two other persons. As reckless

imprudence or criminal negligence is not one of the
three crimes mentioned in Article 33 of the Civil Code,
there is no independent civil action for damages that
may be instituted in connection with said offense.
Hence, homicide through reckless imprudence or
criminal negligence comes under the general rule that
the acquittal of the defendant in the criminal action is a
bar to his civil liability based upon the same criminal
act notwithstanding that the injured party reserved his
right to institute a separate civil action. In the language
of Rules of Court (Rule 111, Sec. 3), the extinction of the
criminal action by acquittal of the defendant on the
ground that the criminal act charged against him did not
exist, necessarily extinguished also the civil action for
damages based upon the same act. (citations omitted,
emphasis supplied)
In the footnotes to this case, Justice Capistrano, a

member of the Code Commission, commented on the
ruling in Dyogi v. Yatco:
The holding in the case of Dyogi, et al. vs. Yatco, etc., et al.,
supra, that the term "physical injuries" used in Article 33
of the Civil Code includes homicide or murder, is
contrary to the letter and spirit of the law. I recall that
when the draft of what is now Article 33 of the New
Civil Code was presented for deliberation by Code
Commission Chairman Dean Jorge C. Bocobo, a great
civilian, before the Code Commission (then composed of,
besides Chairman Bocobo, Professor Guillermo B.
Guevarra, Dean Pedro Y. Ylagan, and Dean Francisco R.
Capistrano, members), said Chairman made, in sub-
stance, the following remarks: In America the injured
party in crime has the initiative, through his lawyer he
immediately files a civil action for damages against the
offender. In the Philippines, the offended party depends
upon the fiscal to demand in the criminal action the
damages he has suffered. I think it is about time to
educate our people the American way by giving the

injured party in crime the initiative to go to court
through his lawyer to demand damages, and for this
purpose, we should give him an independent civil action
for damages. Let us begin with just three crimes which
are of common occurrence, namely, defamation, fraud
and physical injuries. Depending upon the success of the
experiment, when the new Civil Code may come up for
revision about fifty (50) or one hundred (100) years from
now, it will be up to our successors in the Code
Commission to add more crimes to the three already
mentioned or make the provision comprise all crimes
causing damages to the injured party. This civil action, as
in America, should proceed independently of the
criminal action and should be proved only by prepon-
derance of evidence. Defamation may be oral or written.
Fraud comprises all forms of estafa. Physical injuries is
to be understood in its ordinary meaning and does not
include homicide or murder because where physical
injuries result in homicide or murder, the reason for
the law (namely, to give the injured party personally the
initiative to demand damages by an independent civil
action) ceases, for the reason that a dead person can no
longer personally, through his lawyer, institute an
independent civil action for damages. (All the members
of the Code Commission agreed with the Chairman and
the draft of the article was unanimously approved.).
In the Revised Penal Code, the crime of homicide is

treated in Title Eight (Crimes Against Persons), Chapter
One (Destruction of Life), while the crime of physical
injuries is separately treated in Chapter Two of the same
title. This shows that the two crimes are distinct from
each other, that physical injuries is not included in
homicide. (emphasis supplied)
INDPENDWCMLAAcToNs I 677
In Madeja v. Caro,7 ' Dr. Eva Japzon was accused of

Homicide through Reckless Imprudence for the death
of Cleto Madeja after an appendectomy. Carmen
Madeja reserved the right to file a separate civil
action. While the criminal case was still pending,
Carmen sued Dr. Japzon for damages in Civil Case
No. 141 of the same court. Judge Felix Caro dismissed
the complaint.
Regarding the meaning of physical injuries in Article

33, the Court said:
2. The term "physical injuries" is used in a generic
sense. It is not the crime of physical injuries defined in
the Revised Penal Code. It includes not only physical
injuries but consummated, frustrated and attempted
homicide.
The Article in question uses the words 'defamation,'

'fraud' and 'physical injuries.' Defamation and fraud
are used in their ordinary sense because there are no
specific provisions in the Revised Penal Code using
these terms as means of offenses defined therein, so
that these two terms defamation and fraud must have
been used not to impart to them any technical
meaning in the laws of the Philippines, but in their
generic sense. With this apparent circumstance in
mind, it is evident that the terms physical injuries'
could not have been used in its specific sense as a
crime defined in the Revised Penal Code, for it is
difficult to believe that the Code Commission would
have used terms in the same article-some in their
general and another in its technical sense. In other
words, the term physical injuries' should be under-
stood to mean bodily injury not the crime of physical
injuries, because the terms used with the latter are
general terms. In any case, the Code Commission
Madeja v. Caro, G.R. No. L-51183, 21 December 1983.

678 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASi-DEuCTS
recommended that the civil action for physical injuries

be similar to the civil action for assault and battery in
American Law, and this recommendation must have
been accepted by the Legislature when it approved
the article intact as recommended. If the intent has
been to establish a civil action for the bodily harm
received by the complainant similar to the civil action
for assault and battery, as the Code Commission
states, the civil action should lie whether the offense
committed is that of physical injuries, or frustrated
homicide, or attempted homicide, or even death."
(Carandang vs. Santiago, 97 Phil. 94,96-97 [1955].)
Regarding Corpus vs. Paje,7 2 which stated that reckless

imprudence or criminal negligence is not included in
Article 33 of the Civil Code, the Court ruled that this
case was not authoritative because of the eleven
justices, only nine took part in the decision and four of
them merely concurred in the result.
In Bonite v. Zosa,73 while Florencio Bonite was working

as a "caminero" of the Bureau of Public Highways, a
truck driven by Eligio Abamonga hit him, resulting in
his death. The heirs of Bonite filed a criminal com
plaint for Homicide through Reckless Imprudence
against Abamonga. The trial court acquitted
Abamonga for failure to prove his guilt beyond
reasonable doubt. The heirs of Bonite filed an action
for recovery of damages against Abamonga. The
Court dismissed the complaint. The issue before the
Court was whether or not an independent civil action
for damages, under Article 29 of the Civil Code, is
deemed barred by the heirs' failure in the criminal
action to make a reservation to file a separate civil
72 Corpus vs. Paje, G.R. No. L-26737, 31 July 1969.

73 Bonite v. Zosa, G.R. No. L-33772, 20 June 1988.
INE CNDErCACnONs I 679
action and by their active participation in the

prosecution of such criminal action.

When the accused in a criminal case is acquitted on the
ground that his guilt has not been proved beyond
reasonable doubt, a civil action for damages for the same
act or omission may still be instituted against him, and
only a preponderance of evidence is required to hold the
accused liable. The civil liability is not extinguished by
acquittal of the accused, where the acquittal is based on
reasonable doubt.
It quoted Article 29 of the Civil Code, which provides:

When the accused in a criminal prosecution is acquitted
on the ground that his guilt has not been proved beyond
reasonable doubt, a civil action for damages for the same
act or omission may be instituted. Such action requires
only a preponderance of evidence. Upon motion of the
defendant, the court may require the plaintiff to file a
bond to answer for damages in case the complaint
should be found to be malicious.
If in a criminal case the judgment of acquittal is based

upon reasonable doubt, the court shall so declare. In the
absence of any declaration to that effect, it may be
inferred from the text of the decision whether or not the
acquittal is due to that ground.
In this case, the criminal complaint for Homicide

through Reckless Imprudence was dismissed on the
ground that the guilt of the accused was not proved
beyond reasonable doubt. Thus, the heirs had the
right to file an independent civil action for damages,
680 1 ANA.YSIS oF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QuAsI-DOEcTs
the acquittal of the accused in the criminal case

notwithstanding.
The Court also ruled against Abamonga's claim that

the specific provision applicable is Article 33 of the
Civil Code and not Article 29 because the latter is not
applicable to criminal offenses proceeding from a
tortious act. The Court explained that Article 29 of the
Civil Code does not state that the right to file an
independent civil action for damages under the said
article can be availed of only in offenses not arising
from a tortious act. The only requisite is that the
accused must have been acquitted in the criminal
action based on reasonable doubt.
In addition, the Court explained:

Moreover, Article 33 of the Civil Code assumes a
defamation, fraud, or physical injuries intentionally
committed. The death of the deceased in the case at bar
was alleged to be the result of criminal negligence, i.e.,
not inflicted with malice. Criminal negligence under
Article 365 of the Revised Penal Code consists in the
execution of an imprudent or negligent act that, if
intentionally done, would be punishable as a felony.
Thus, the law penalizes the negligent or reckless act, not
the result thereof. The gravity of the consequence is only
taken into account to determine the penalty. As reckless
imprudence or criminal negligence is not mentioned in
Article 33, no independent civil action for damages
arising from reckless imprudence or criminal negli-
gence may be instituted under said article. It is,
therefore, not applicable to the case at bar. (emphasis
supplied)
INDEPENDENTCMLACnoNs 1681
In Dulay v. CA, 74 Benigno Torzuela and Atty.

Napoleon Dulay had an altercation at the "Big Bang sa
Alabang," as a result of which Torzuela, the security
guard on duty at the said carnival, shot and killed
Atty. Dulay. The heirs of Dulay filed action for
damages against Torzuela and his employers. During
pendency of the civil case, an information charging
Torzuela with Homicide was filed. The trial court
dismissed civil case, which was affirmed by the
appellate court.
The Court held that the filing of an independent civil

action before the prosecution in the criminal action
presents evidence is far better than merely making an
express reservation.
Regarding the argument that Article 33 of the Civil

Code applies only to injuries intentionally committed
pursuant to the ruling in Marcia v. CA, 75 the Court
ruled that the term "physical injuries" in Article 33
had already been construed to include bodily injuries
causing death. The Court said that the term does not
refer to the crime of Physical Injuries defined in the
Revised Penal Code. It includes not only physical
injuries but also consummated, frustrated, and
attempted homicide. 76 Although in the Marcia case, it
was held that no independent civil action may be fied
under Article 33, where the crime is the result of
criminal negligence, it must be noted, however, that
Torzuela, the accused in the case at bar, was charged
74
Dulay v. CA, G.R. No. 108017,3 April 1995.
75 Marciav. CA, G.R. No. L-34529, 27 January 1983.
76 Citing Madeja v. Caro, 126 SCRA 293 (1983).
682 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASI-DELIcTs
with Homicide, not with Reckless Imprudence,

whereas the defendant in Marcia was charged with
reckless imprudence. Therefore, in this case, a civil
action based on Article 33 lies.
5. Neglect of Duty
Article 34 of the Civil Code provides that a member of

a city or municipal police force shall be primarily
liable for damages if he refuses or fails to render aid
or protection to any person in case of danger to life or
property. In such case, the city or municipality shall
be subsidiarily responsible. The civil action shall be
independent of any criminal proceedings, and a
preponderance of evidence shall suffice to support
such action.
6. Catch-All Independent Civil Action
Article 35 of the Civil Code provides that a person

may bring a civil action for damages against the
alleged offender when the following conditions are
met:
* The person claiming to be injured by a criminal

offense charges another with the same;
" There is no independent civil action granted in
this Code or any special law for such criminal
offense; and
" The judge finds no reasonable grounds to
believe that a crime has been committed, or the
prosecuting attorney refuses or fails to institute
criminal proceedings.
IMENDENTCMLACnONS I 683
This civil action may be supported by a prepon-

derance of evidence. But upon the defendant's
motion, the court may require the plaintiff to file a
bond to indemnify the defendant in case the com-
plaint should be found to be malicious. If during the
pendency of the civil action, an information should be
presented by the prosecuting attorney, the civil action
shall be suspended until the termination of the
criminal proceedings.
11. Is an action based on Article 32 required to comply

with constitutional law requirements before it can
prosper? Are all the rights listed under Article 321
covered by the Constitution?
2. Can an action based on Article 32 arise from attempts
to violate any of the rights listed therein?
13. What is the benefit of filing an Article 33 action of acts
that must be proven to be crimes anyway?
4. Do you agree with the rule that there can be no
defamation by an individual if the group allegedlyl
defamed is too large?
5. If the analysis employed by the Court in Yuchengco v.
The Manila Chronicle was employed in MVRS
Publicationsv. Islamic, would the ruling be different?
6. If a person is maliciously accused of committing a
crime, when would a case for defamation be proper as
opposed to a case for malicious prosecution or abuse of
rights?
7. Aside from Estafa, would there be another crime that
would fall underfraud under Article 33?
Citation:
Tue Apr 17 10:46:46 2018



Subject Index
A
Absolute immunity ................................................................. 147
Abuse of right .......................................................................... 511
A cts contra bonus mores ........................................................... 541
A ge brackets ............................................................................ 149
A rchitect, liability of .............................................................. 471
Assum ption of risk ................................................................. 278
B
Bad faith .......................................................................... 515,605
Bivens action ............................................................................ 636
Bonus paterfamilias ......................................................... 128,132
"But for" test ........................................................................... 316
C
Captain of the ship, doctrine of ............................................ 196
Casusfortuitus(see Fortuitous event)
Cause
Concurrent ........................................................................ 302
Intervening ....................................................................... 310
Proxim ate ........................................................................... 290
Rem ote ............................................................................... 307
Caveat emptor .................................................................... 164, 167
Children
Liability of.......................................................................... 147
Standard of conduct ......................................................... 150
Civil rights, violation of ........................................................ 604
Common carrier
D iligence required ............................................................ 188
Presumption of fault ........................................................ 188
Common knowledge, doctrine of ................................ 209,224
Comparative negligence ........................................................ 242
ConcurT ent cause .................................................................... 302
684
SUBJECT INDEXI 685
Condition ................................................................................ 323

Conduct, standard of .............................................................. 126
Contributory negligence
Definition ........................................................................... 240
Distinguished from proximate cause ............................. 252
Effect ........................................... 254
Criminal liability .................................................................. 52
Cuasi-delitos(see Quasi-delict)
Culpa Aquiliana..................................................................... 61
Culpa contractual.................................................................. 61
D
Damage to property ........................................................... 39
Damnum absque injuria.................................................... 513,525
Dangerous weapons or substances ....................................... 187
Defam ation ............................................................................... 640
Dereliction of duty .................................................................. 602
Diligence, standard of ............................................................. 108
Direct evidence, effect of ........................................................ 197
Discovered peril, doctrine of ................................................. 326
Doctors
As employees .................................................................... 392
Liability of ......................................................................... 171
Drivers
Presum ption of negligence .............................................. 178
Special circum stances ....................................................... 140
Of company cars ............................................................... 407
Duty, breach of .................................................................... 17
E
Emergency rule (see Last clear chance doctrine)
Employee
Liability for death/injury to ................. *....... 476
Vicarious liability for negligence of ......................... 384
Selection and Supervision .............................................. 422
686 I ANALYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QuASi-DEuCTs
Employer
Presumption of negligence ............................................. 420
Vicarious liability of ......................................................... 383
Engineer, liability of ................................................................ 471
Expert, standard of diligence of ........................................... 160
Expert testimony .................................................................... 212
F
Fair comment, doctrine of ...................................................... 644
Fictitious person ...................................................................... 126
Fortuitous event
D efense .............................................................................. 265
Elements ............................................................................. 266
Fraud ......................................................................................... 665
G
G ood faith ................................................................................. 515
Good father of a fam ily .......................................................... 128
G ross Negligence .................................................................... 117
H
Head of family living in a building ...................................... 472
Hospital, as employer ............................................................. 392
I
Illegal acts ................................................................................. 536
Independent civil action ......................................................... 604
Intentional acts .................................................................... 31
Intervening cause .................................................................... 310
Efficient Intervening Cause ............................................. 291
Foreseeable Intervening Cause ....................................... 314
SuBJECr INDExI 687
L
Last clear chance, doctrine of
A pplication ....................................................................... 328
History ............................................................................... 325
Libel ........................................................................................... 642
Local government unit
Immunity .......................................................................... 449
Liability of .......................................................................... 465
M
M alice ........................................................................................ 658
In Law ...................................................................................... 658
Malicious prosecution
Definition ........................................................................... 570
Elem ents ............................................................................. 574
Statutory basis ................................................................... 573
Manager of an enterprise, liability of ................................... 383
Manufacturers or producers of products ............................. 478
M edical negligence/m alpractice ............................................ 171
Medical professional, standard of diligence ....................... 172
M itigation of dam ages ............................................................ 254
M ixed considerations test ...................................................... 322
M oral seduction ....................................................................... 546
M otor vehicle drivers ............................................................. 178
N
Neglect of duty ........................................................................ 682
Negligence
Contributory ...................................................................... 239
Definition ........................................................................... 106
D efenses ............................................................................. 234
D egrees .............................................................................. 116
Presumptions .................................................................... 178
No harm principle ................................................................... 511
Notorious negligence .............................................................. 119
688 I AAYSIS OF PHIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QUASiDEuCTS
0
Ordinary negligence ............................................................... 117
"Ordinary prudent person," standard of ............................. 132
Owner of a motor vehicle, liability of .................................. 457
Owner of an enterprise, liability of ...................................... 473
P
Parents, liability of .................................................................. 356
Pharm acist, diligence of ......................................................... 163
Physical injury(ies) .................................................................. 668
Political rights, violation of.................................................... 604
Possessor or user of animals ............................ 453
Pre-existing contractual relationship ................................ 75
Prescriptive period .................................................................. 286
Presumption of negligence .................................................... 178
Principle of good dealings ..................................................... 511
Privileged communications ................................................... 659
Probable cause ......................................................................... 569
Promise to marry, breach of .................................................. 545
Proprietor of building ............................................................. 468
Proximate cause
Complete defense ............................................................. 234
Definition ........................................................................... 290
Tests to determ ine ........................................................... 316
Public hum iliation ................................................................... 554
Q
Quasi-delict
Definition ....................................................................... 30
Distinguished from
Breach of contract ................................................... 61
Delict ....................................................................... 46
Tort ........................................... 4.....
2
Elem ents .......................................................................... 41
Governing provisions ................................................... 30
SUBJECT INDEX 1689
History ................................................................................. 27
Nature .................................................................................. 29
Scope ..................................................................................... 31
R
Reasonable person .................................................................. 126
Remote cause ........................................................................... 307
Res ipsa loquitur, doctrine of
D efinition ........................................................................... 190
Effect .................................................................................. 207
Elements ............................................................................. 192
Justification ........................................................................ 209
Respondeat superior .................................................................. 383
S
Schools, liability of ................................................................. 363
Slander ...................................................................................... 648
Slight negligence ..................................................................... 116
Special agent ............................................................................ 427
Special circum stances ................................... 140
Standard of Conduct ............................................................... 126
State, liability of ....................................................................... 427
Strict liability tort ............................................................... 45
Substantial factor test ............................................................. 321
Sufficient link test.................................................................... 317
T
Teacher, liability of .................................................................. 363
Three step analysis ................................................................. 268
Tort
Definition ......................................................................... 1,13
Distinguished from Quasi-delict ................................ 42
Elem ents .......................................................................... 17
Etym ology ....................................................................... 1
690 I ANALYSIS OF PHIIUPPINE LAW AND JURISPRUDENCE ON TORTS AND QuAsI-DEUCTS
Tort law
In the Philippines ........................................................... 5,11
Purpose ......................................................................... 24
Tortuous interference ............................................................. 502
Turntable and Torpedo cases ................................................ 152
U
Unfair com petition .................................................................. 602
Unfair dismissal ...................................................................... 593
V
Vicarious liability .................................................................... 354
Vinculum Juris....................................................................... 61
Violation of human dignity ................................................... 594
Volenti non fit injuria................................................................ 278
w
Waiver of right ........................................................................ 614

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UNIVERSITY OF THE PHILIPPINES

UNIVERSITY OF THE PHILIPPINES

ISBN No. 978-971-15-0428-1

No part of this book may be reproduced in any form, or

Artwork by Ally Publico

Cover Designed by Aristotle L. Roxas

Published by U.P. College of Law

Rommel J. Casis received his Master of Laws (LL.M)

As a law student, he was part of the Order of the

Professor Casis began teaching in the UP College of

Prior to joining the full-time faculty, he was engaged in

Professor Casis has taught the course, "Torts and

Professor Casis is the author of three books, Analysis of

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This volume is about Torts and Quasi-Delicts. This is

Torts and Quasi-Delicts, as a field of study, covers

The number of Civil Code provisions on Torts and

As a practical matter, I also found it necessary to write

In this volume, it became necessary to discuss certain

This is the last volume to be completed in the series of

To my children, Cilque Dawn and Cian Gabren,

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Afialda v. Hisole, G.R. No. L-2075,

Baksh v. CA, G.R. No. 97336,

Bayani v. PanayElectric Co. Inc.,

Caedo v. Yu Khe Thai, G.R. No.

College Assurance v. Belfranlt,

DM Consunjiv. CA, G.R. No.

Elcano v. Hill, G.R. No. L-24803,

FarEast v. CA, G.R. No. 108164,

FarEastern Shipping v. CA, G.R.

Gabeto v. Araneta, G.R. No. 15674,

Globe Mackay v. CA, G.R. No.

Heirs of Completo v. Albayda, Jr.,

Ilao-Oretav. Ronquillo, G.R. No.

Jarco Marketing Corporationv.

Kramer v. CA, G.R. No. 83524,

L.G. Foods v. PhiladelfaPagapong-

MHP Garmentsv. CA, G.R. No.

Magbanua v. Junsay, G.R. No.

NPC v. CA, G.R. No. 119121,14

Ocean Builders v. Spouses Cubacub,

PLDT v. CA, G.R. No. 57079,

ProfessionalServices v. Agana, G.R.

Que v. LAC, G.R. No. 66865,

Ramos v. CA, G.R. No. 124354,

Salvosa v. LAC, G.R. No. 70458,

St. Joseph's College v. Miranda,