CHAPTER TWO

NEGLIGENCE
1. ACTIONABLE NEGLIGENCE

May either be: Basis:

 CULPA CONTRACTUAL  CONTRACT
 CULPA AQUILIANA  QUASI-DELICT
 CRIMINAL NEGLIGENCE  DELICT
1.1 5 SOURCES OF OBLIGATION
(ART. 1157 NCC)

1. Law
2. Contracts
3. Quasi-contracts
4. Delict
5. Quasi-delict
1.1.1 QUASI-DELICT
(ART. 2176 NCC)

 Requisites:
1. Act or omission constituting fault/negligence
2. Damage caused by the said act or omission
3. Causal relation between damage & act/omission
1.1.2 DELICT
(ART. 365 RPC)

 A civil law term which imposes liability on a person who

causes injury to another, or for injury caused by a person or
thing under his custody
DELICT
(ART. 365 RPC)

 Elements of the Crime

1. Offender does or fails to do an act
2. The doing or failure to do the act is voluntary
3. It is without malice
4. The material damage result from the reckless imprudence
5. There is inexcusable lack of precaution on the part of offender
1.1.3 CONTRACT

 Governed by the Civil Code provisions on Obligations &

Contracts (art. 1170-1174) which provides that those, who in
the performance of the obligation are guilty of fraud,
negligence or delay are liable for damages
 Actions for damages based on contracts are not Tort actions.
Actions for damages filed by passengers against common
carriers are action to enforce an obligation ex contractu. These
actions are based not only on civil code provisions but also
other new civil code provision and provision of special laws
governing common carriers and transportation
1.2 CULPA AQUILIANA vs CULPA CONTRACTUAL
CULPA AQUILIANA
 Violation of pre-existing obligation
derived from the general obligation or
duty to observe the standards of care set
by society in dealing with other persons
• Wrongful or negligent conduct creates a
VINCULUM JURIS and give rise to an
obligation even between 2 persons not
formally bound to any other obligation
• Governed by Art. 2176 NCC
• Affect PUBLIC INTEREST
• PENAL CODE punishes criminal act
• Punishes only if there is PENAL LAW
covering them
• Liability is SUBSIDIARY
CULPA CONTRACTUAL
• Violation of pre-existing obligation
derived from contract
• Does not create vinculum juris between
the parties
• Governed by Art. 1170-1174 NCC
• Only PRIVATE CONCERN
• CIVIL CODE repairs damage by
indemnification
• Include all acts in which any kind of faults
or negligence intervenes
• Liability is DIRECT & PRIMARY
1.3 CONCURRENCE OF CAUSES OF ACTION

 A single act or omission may give rise to 2 or more causes of

action. The obligation based on 1 is separate and distinct from
the other.

 An act or omission may give rise to an action based on

DELICT, QUASI-DELICT or even CONTRACT
CONCURRENCE OF CAUSES OF ACTION

 EXAMPLE:
A negligence of a guard who is employed by an independent
contractor to man a common carrier may result in the solidary
liability of the carrier as well as the independent contractor.
The liability of the carrier is based on contract and liability of
the contractor is based on quasi-delict.
PROSCRIPTION against DOUBLE RECOVERY (Art. 2177
CC)

 The two causes of action may be availed of in proper cases

subject to caveat that the offended party cannot recover twice
for the same act or omission or under both causes of action.
 Since these 2 civil liabilities are distinct and independent of
each other, the failure to recover in one will not necessarily
preclude recovery in the other.
 Although an act or omission may give rise to 2 causes of
action, the plaintiff cannot recover twice for the same act or
omission of the defendant
2. NEGLIGENCE, CONCEPT
2.1 DEFINITION (Art. 1173 of the NCC)

Negligence is the omission of that degree of diligence which is

required by the nature of the obligation and corresponding to
the circumstances of persons, time and place.
JURISPRUDENTIAL DEFINITION
1. The omission to do something which a reasonable man
would do or the doing of something which a prudent or
reasonable man would not (Black’s Law Dictionary)
2. The failure to observe for the protection of interest of
another person (Layugan v. IAC)
3. The want of care required by the circumstances (Ahern v.
Oregon)
4. The conduct which creates undue risk to harm others
(Valenzuela v. CA)
2.2 TEST OF NEGLIGENCE

 Test for negligence is embodied in the case of Picart vs. Smith

and 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.
2.3 FORSEEABILITY

 FORSEEABILITY is a fundamental test of Negligence.

The test to determine the existence of negligence is to
ask if the defendant used reasonable care and caution which an
ordinarily prudent person would have used.
As stated in Picart vs. Smith (supra), the question is
“Could a prudent man, in the case under consideration, foresee
harm as a result of the course actually pursued?”
FORSEEABILITY

 Even if the particular injury was not foreseeable, the risk is still
foreseeable if the possibility of INJURY is foreseeable.

 Since the unreasonableness of the risk means danger that is

apparent or should be apparent, the determination of
negligence is a question of foresight on the part of the actor.
Example: (Cabardo vs. CA)

 A case where the vehicle being driven by the defendant

bumped another vehicle parked in the highway.
 SC ruled that the defendant was NEGLIGENT because at the
time of the incident, he was driving in a highway at the rate of
70kph although he could hardly see an object at the distance
of 10 meters because of heavy rains.
 a reasonable man would have foreseen that a stalled vehicle is
parked in the highway.
2.4 UNDUE RISK

Negligence is a conduct that creates an undue risk of harm to

others. (Valenzuela v. CA)

Risk means a danger which is apparent or should be apparent

to one in the position of an actor. Such type of risk is
unreasonable risk.
2.5 PROBABILITY
 Foreseeability involves the question of probability.
 Foreseeability is NOT the same as probability.
 Even if there is lesser degree of probability that damage will
result, the damage may still be considered foreseeable.
 If there is a great probability and risk that damage will result, a
person is NEGLIGENT if he did not exercise due diligence in the
face of such great probability.
 The greater the danger, the greater the degree of care required.
 Extraordinary risk demands extraordinary care.
 The more imminent the danger, the higher the degree of care.
PROBABILITY

 Picart v. Smith
The SC explained that there is negligence “if a prudent man in
the position of the tortfeasor would have foreseen that the
effect harmful to another was sufficiently PROBABLE to
warrant his conduct or guarding against its consequences.”
3. CIRCUMSTANCES to CONSIDER in DETERMINING NEGLIGENCE

3.1 TIME
Obviously, the time of the day may affect the diligence required
of the actor.

Example:
A greater degree of diligence is needed if one is driving an
avenue in the morning when there are many pedestrian and
motorist. However, ordinary care and vigilance would suffice
while driving at 1:00am along almost deserted avenue
3.2 EMERGENCY RULE

 Aside from time, the jurisprudence requires court to consider

the presence of an EMERGENCY.

 “Courts have traditionally been compelled to recognize that

an actor who is confronted with an emergency is not to be
held up to the standard of conduct normally applied to an
individual who is in no such situation. “(Gan vs. CA)
EMERGENCY RULE

 Under this rule, an individual who suddenly finds himself in a

situation of danger and is required to act without much time
to consider the best means that may be adopted to avoid
impending danger is NOT GUILTY of negligence if he fails to
undertake the better solution UNLESS the emergency was
brought about by his own negligence. (Valenzuela v. CA)
3.3 GRAVITY OF HARM TO BE AVOIDED

 Even if the odds that an injury will result are not high, harm
may still be considered FORESEEABLE if the gravity of harm
to be avoided is great.

 Example:
Passing in a railway crossing (Junio v. Mla. Railroad Co.)
GRAVITY OF HARM TO BE AVOIDED

 Junio v. Mla. Railroad Co.

“Life is much too precious so much so that disregard of
danger, even if the odds that it will result is not great, is
negligence. “

“When human life is at stake, due care under the

circumstances requires everything that gives reasonable
promise of preserving life to be done regardless of the
difficulties. “
3.4 ALTERNATIVE CAUSE OF ACTION

 The gravity of the injury will result if the actor took the
alternative course of action.
 Example:
Collision of two vehicle because the driver at fault entered the
truck lane. SC said the car’s entry into the lane of the truck is
necessary to avoid what was in his mind at that time a greater
peril – death or injury to the two boys who suddenly darted
across the road. (McKee v. IAC)
3.5 SOCIAL VALUE or UTILITY OF ACTIVITY
 The diligence that the law requires an individual to observe and
exercise varies according to the nature of the situation and the
importance of the act to be performed. (Bulilan vs. COA)
 Example:
Manufacture of medicine even it has foreseeable side effect .
The manufacture and sale thereof cannot be considered negligent
considering the utility of the product involved.
A train will likewise be allowed to blow its horn even if animals
will be frightened because the act is necessary in order to save
lives.
SOCIAL VALUE or UTILITY OF ACTIVITY
NIA v. IAC:
NIA was negligent in installing an irrigation canal. As a
result of such construction, the landholding of the plaintiffs was
inundated with water. The SC held NIA negligent because
“although it cannot be denied that the irrigation canal of the NIA
(was) a boon to the plaintiffs, the delay of almost 7 years in
installing the safety measures such as check gates, drainage(s),
ditches, and paddy drains has caused substantial damage to the
annual harvest of the plaintiffs.”
3.6 PERSON EXPOSED TO THE RISK

 The character of the person exposed to the risk is also a

circumstance that should be considered in determining
negligence.

 Example:
The plaintiff who was injured is a disable person, pregnant
woman or senior citizen and the defendant was aware of such
condition is also taken into consideration in determining if the
defendant was negligent
PERSON EXPOSED TO THE RISK

 Railroad Co. vs. Stout:

“(wherein the principal question was whether a railroad
company was liable for an injury received by an infant ) that the
conduct of an infant of tender years is not to be judged by the
same rule which governs that of an adult.”
4. STANDARD OF CONDUCT:
GOOD FATHER OF THE FAMILY

 The SC explained in Picart v. Smith that the standard of

conduct used in the Philippines is that of Pater Familias of
Roman Law or who is referred to in Art. 1173 of the CC as good
father of the family.

 A good father of the family is referred to as the reasonable

man, man of ordinary intelligence and prudence or ordinary
reasonable prudent man.
4.1 SPECIAL RULES
4.1.1 CHILDREN
 The rule that there is one standard of conduct — that of a reasonable
man — is subject to certain exceptions or qualifications.
 Thus, the action of the child will not necessarily be judged according
to the standard of an adult. But if the minor is mature enough to
understand and appreciate the nature and consequences of his
actions, he will be considered negligent if he fails to exercise due care
and precaution in the commission of such acts
 Taylor v. Meralco, 16 Phil 8 – The law fixes no arbitrary age at which a
minor can be said to have the necessary capacity to understand and
appreciate the nature and consequences of his acts
NOTE:
 Applying the provisions of the RPC, Judge Sangco takes the
view that a child who is 9 or below is conclusively presumed to
be incapable of negligence. On the other hand, if the child is
above 9 years but below 15, there is a disputable presumption
of absence or negligence.
NOTE:
 Absence of negligence does not necessarily mean absence of
liability. A child under 9 years can still be subsidiarily liable
with his property (Art. 100 RPC)
 Absence of negligence of the child may not excuse the parents
from their vicarious liability (Art. 2180 NCC or Art. 221 FC)
 The exemption from criminal liability does not include
exemption from civil liability which shall be enforced in
accordance with the existing laws (R.A 9344 Sec. 6)
Minimum Age of Criminal Responsibility

15 YRS UNDER DURING THE CHILD ABOVE 15 BUT UNDER 18 YRS

COMMISSION OF THE CRIME
 EXEMPT from criminal liability  likewise exempt from criminal liability
& subject to intervention program
UNLESS acted with discernment

 shall be subject to an INTERVENTION

PROGRAM
4.1.2 PHYSICAL DISABILITY
 The weakness of a person will not be an excuse in negligence
cases.
 GENERAL RULE: A weak, clumsy or accident prone person
must come up to the standard of reasonable man, otherwise,
he will be considered negligent.
 EXCEPTION: However, the rule is different if the defect is not
a mere weakness but one amounting to real disability.
 A person who is physically disabled cannot be expected to act
as if he is not disabled.
4.1.3 EXPERTS & PROFESSIONALS
 An expert should exhibit the care and skill of one ordinarily skilled in
the particular field that he is in (Fernando vs CA)
 When a person holds himself out as being competent to do things
requiring professional skills, he will be held liable for negligence if he
fails to exhibit the care and skill of one ordinarily skilled in the
particular work which he attempted to do. (Culion Ice, Fish & Electric
Co., Inc. vs. Philippine Motors)
 The SC explained in Far Eastern Shipping Co. v. CA that an act may
be negligent if it is done without the competence that a reasonable
person in the position of the actor would recognize as necessary to
prevent it from creating an unreasonable risk of harm to another.
4.1.4 NATURE OF ACTIVITY

 There are activities which by nature impose duties to exercise

a higher degree of diligence.
 Examples:
Banks – degree of responsibilities and trustworthiness
expected in their employees
Common Carriers – extraordinary diligence in the vigilance
over their passengers and transported goods
4.1.5 INTOXICATION
 Mere intoxication is not negligence. It is but a circumstance to be
considered with the other evidence tending to prove negligence
(Wright v. Manila Electric)
 If one’s conduct is characterized by a proper degree of care and
prudence, it is immaterial whether he is drunk or sober.
 In other words, intoxication is of little consequence in negligence
cases if it was not shown that such drunkenness contributed to the
accident or that the accident would have been avoided had he been
sober. (U.S. vs. Cramer)
 However, as pointed out earlier, intoxication may be one of the
circumstances to be considered to prove negligence. For instance,
intoxication may be considered to prove negligence in driving a
motor vehicle.
4.1.6 INSANITY

 Under the RPC, INSANE person is EXEMPT from criminal

responsibility. However, by express provision of law, there
may be civil liability even when the perpetrator is held to be
exempt from criminal liability.
BASIS OF LIABILITY OF PERMANENTLY INSANE PERSON

1. Where one of two innocent person must suffer the loss, it

should be borne by the one who occasioned it
2. To induce those interested in the estate of the insane
person to restrain and control him
3. The fear that an insanity defense would lead to a false claim
of insanity to avoid liability
4.1.7 KNOWLEDGE & EXPERIENCE OF THE ACTOR

 there are matters which a prudent man is conclusively

presumed to know based on actual knowledge and
experience.

 For instance, where a particular act is followed from past acts

or omissions, one is charged with notice that a similar act or
omission, may produce a similar result.
KNOWLEDGE & EXPERIENCE OF THE ACTOR

 PLDT Company, Inc. vs. CA

the plaintiff was not able to recover from the defendant
telephone company even if he was injured because of the
excavation of the company in the street.
because he had knowledge of the presence and location of
the excavations, having passed on the same street almost
everyday.
4.1.8 WOMEN
 A man is generally physically stronger than a woman and the same
should be taken into consideration in determining if the defendant,
who is a woman was negligent.

 Cangco v. Mla. Railroad Co.:

In determining the question of contributory negligence in performing
such act — that is to say, whether the passenger acted prudently or
recklessly — the age, sex, and physical condition of the passenger are
circumstances necessarily affecting the safety of the passenger, and
should be considered.
5. STANDARD v. SPECIFIC RULES
STANDARD SPECIFIC RULES
 Are flexible, context-sensitive legal norms that  are legal norms that are formal and mechanical
require evaluative judgments in their application
 triggered by a few easily identified factual
matters and opaque in the application to the
values that they are designed to serve
Example: Example:
 drive safely  drive at not more than 60 kilometer per hour
STANDARD v. SPECIFIC RULES, APPLICATION
 standards are the legal norms that are being followed in deciding
negligence cases.
 The courts do not prescribe specific rules of conduct to be followed
by all persons.
 “The standard of reasonable care is set by law but its application in a
particular case is a question of fact in the sense that propositions of
good sense which are applied by one judge in one case should not
be regarded as propositions of law. If that were the case, the system
would collapse under the weight of accumulated precedent.”
(W.V.H. Rogers, Winfield & Jolowicz on Torts, 1998 15th Ed., p. 179)
STANDARD v. SPECIFIC RULES, APPLICATION
 Pokora vs. Wabash Railway:
 Justice Cardozo explained that “each and every case on
questions of negligence is to be decided in accordance with
the peculiar circumstances that present themselves. There can
be no hard and fast rule. There must be that observance of the
degree of care, precaution, and vigilance which the situation
demands.”
6. OTHER FACTORS TO CONSIDER IN DETERMINING NEGLIGENCE

6.1 VIOLATION OF RULES & STATUTES

6.1.1 Violation of Statues and Ordinance
6.1.2 Violation of Administrative Rules
6.1 .3 Violation of Private Rules of Conduct
6.1.4 Proximate Cause Indispensable
6.1.5 Negligence Per Se Rule Reconsidered
6.1.6 Practice and Custom
6.1.7 Compliance with Rules and Statutes
6.1.1 VIOLATION OF STATUTES & ORDINANCES

 Violation of Statues may treated either be:

1. a circumstance which establishes a presumption of
negligence
2. negligence per se
3. a circumstance which should be considered together with
other circumstance as evidence of negligence.
GENERALLY ACCEPTED VIEW IN THE PHIL.
- violation of statutory duty constitutes negligence, negligence
as a matter of law, or negligence per se.
REASON
- the statute or ordinance becomes a standard of care or conduct
to which the reasonably prudent person is held. Failure to follow
the statute involve constitutes a breach of legal duty imposed and
fixed by the statute. Since negligence is a breach of legal duty, the
violator of the statute is then negligent as a matter or law.
6.1.2 VIOLATION OF THE ADMINISTRATIVE RULES

 With respect to the rules promulgated by Administrative

Agencies, the SC observed that violation of the rule
promulgated by the Commission or Board is not negligence
per se but it may be evidence of negligence. (Marinduque Iron
Mines Agents, Inc. v. The Workmen’s Compensation Commission)
6.1.3 VIOLATION OF PRIVATE RULES OF CONDUCT

 The same rule applies to rules imposed by private individual

like employer. Violation thereof is merely a “possible evidence
of negligence”
 EXAMPLE:
 Marinduque Iron Mines v. The Workmen’s Compensation Comm.
The heirs of the deceased were able to recover despite his
violation of the rules of the employer.
6.1.4 PROXIMATE CAUSE INDISPENSABLE

 Although violation of the statute is negligence per se, proof

must still be presented that the proximate cause of injury to
the plaintiff is the negligence of the defendant
 Proof must still be presented that there were causal
connection between the negligence or violation of the statute
and the injury (Honoria Delgado Vda. de Gregorio, et al. vs. Go
Chong Bing)
6.2 PRACTICE & CUSTOM

 The custom in the community is the correct way of doing

things under certain circumstances. The way of doing things in
a particular situation may, in fact, have ripen into CUSTOM
precisely because it is how a reasonable man would act under
the same circumstances. The very reason why they are
permitted by the society is that they are beneficial rather than
prejudicial. (S.D. Martinez v. Van Buskirk)
6.3 COMPLIANCE WITH RULES & STATUTES

 While violation of statute may be considered negligence per se,

non-compliance is not sine qua non of negligence. Or compliance
therewith is not conclusive that there was no negligence.
 Example:
Compliance with the speed limit is not conclusive that he
was not negligently driving his car. It can even be
established that he was not negligent even if he was driving
at a rate of speed beyond that required in a place where
there are people crossing the street.
7. GROSS NEGLIGENCE
 “want of even slight care and diligence.” (Amadeo v. Rio Y
Olabarrieta, Inc.
 It is also characterized as implying conscious indifference to
consequences; pursuing a course of conduct which would naturally
and probably result to injury; utter disregard of consequences.
(Marinduque Iron Mines Agents, Inc. v. The Workmen’s Compensation
Commission
 There are legal writers who believe that gross negligence is similar
to reckless imprudence under Article 365 of the Revised Penal Code.
(Padilla, Civil Law, Civil Code Annotated, Vol. VII-A, 1994 Ed., p. 413).
8. PROOF OF NEGLIGENCE
8.1 BURDEN OF PROOF
 Refers to the duty of a party to present evidence on the facts
in issue necessary to establish his claim or defenses by the
amount of evidence required by law. (Sec. 1, Rule 131)

 Thus, if the plaintiff alleged in his complaint that he was

damaged because of the negligent acts of the defendant, the
plaintiff has the burden of proving such negligence. (Taylor vs.
Mla Electric Railroad)
 8.2 PRESUMPTIONS
 The civil code provides for the following cases when the existence of
negligence is presumed:

1. ART. 2184 – diver is presumed negligent if found guilty of reckless driving

or violating traffic regulations at least 2x within the next preceding 2
months
2. ART 2185 – person driving a motor vehicle who at the time of mishap was
violating traffic rules
3. ART 2188 – injury results from possession of dangerous weapon unless
indispensable in occupation or business
8.3 RES IPSA LOQUITUR

 “The thing speaks for itself.”

 FUNCTION: to aid the plaintiff in proving the elements of

negligence case by circumstantial evidence
8.3.1 REQUISITES:
 Requisites for the application of the doctrine were reiterated
in the case of Ramos vs CA, et al.

1. The accident is of a kind which does not occur in the absence

of someone negligence.
2. It is caused by an instrumentality within the exclusive control
of the defendants.
3. The possibility of contributing conduct which would make the
plaintiff responsible is eliminated.
8.3.2 RATIONALE:
 The doctrine of res ipsa loquitur is simply a recognition of the
postulate that, as a matter of common knowledge and experience,
the very nature of certain types of occurrences may justify an
inference of negligence on the part of the person who controls the
instrumentality causing the injury in the absence of some
explanation by the defendant who is charged with negligence. It is
grounded in the superior logic of ordinary human experience and
on the basis of such experience or common knowledge,
negligence may be deduced from the mere occurrence of the
accident itself. Hence, res ipsa loquitur is applied in conjunction
with the doctrine of common knowledge (Rogelio Ramos v. CA)
DARWIN S. SOLANOY