Laws-and-Jurisprudence-on-Torts-and-Damages-largo.pdf

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TORTS (QUASI-DELICT) CHAPTER 1 INTRODUCTORY CONCEPTS 1. TOR ORTS TS in co com mmon la law w cov cover er al alll wr wron ongf gful ul Definition acts, although sometimes viewed to be limited only to a wrong independent of a contract. In common law countries like the United States, torts may either be intentional or unintentional. They may also fall under the category of strict liability torts. Intentional torts include: battery,, assault (apprehension of harmful or offensive battery contact), false imprisonment, intentional infliction of emotional distress (IIED), invasion of privacy, fraud, defamation of character (includes libel, which is written defamation of character and slander sla nder,, which is non-written defamation of character), malicious prosecution, abuse of process, the real property tort of trespass to land, and the personal property torts of conversion and trespass to chattels. On the other hand, unintentional torts are usually founded on negligent acts and may include malpractice (professional negligence), and product liability. 2. Thee wor Th word d “to “tort rt”” cam camee to to be be ado adop pte ted d in in our our jurisprudence upon the implantation of American sovereignty in the Philippines. But there are important differences between the common law on torts obtaining in the United States and the law on torts in the Philippines. This is due to the fact that the provisions of our codes governing legal wrongs which we call “torts” are sometimes different from the common law on torts (see Nicolas, The Philippine Law on Torts and Damages , p. 13). 1

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LAWS AND JURISPRUDENCE ON TORTS AND DAMAGES

3. Thee Ph Th Phil ilip ippi pine ness is is a ci civi vill law law co coun untr try y. Our Our private laws are found in codes mainly based on the Spanish codes which were continued in force with certain modifications after the advent of the American regime and in laws passed by our legislature from time to time. These latter laws were based on, or greatly influenced by, American ideas and principles which are the product of the common law. In the interpretation and application of our codes and legislation, our courts have freely drawn upon American precedents and authorities. The result of all this is that many common law principles have been engrafted in our legal system. Perhaps, in no branch of law in the Philippines is the blending of the common law and the civil law systems better exemplified that in the field of torts (Ibid., citing Jarencio, Philippine Legal History). 4. In th thee Ph Phil ilip ippi pine nes, s, ou ourr con conce cept pt of to tort rtss lea leans ns towards its civil law equivalent of culpa aquiliana. Thus, in Article 2176 of our Civil Code, the following definition appears: “Whoever by act or omission causes damage to another, another, there being fault or negligence, is obliged obli ged 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.” Distinguished from torts

5. In th thee gen gener eral al pl plan an of th thee Phi Phili lipp ppin inee leg legal al sy sysstem, intentional and malicious acts that are constitutive also of torts in common law are governed by the Penal Code, although certain exceptions are made (See Report of the Code Commission, pp. 161-162). What are generally considered tortious acts in the Philippines are limited to acts committed by negligence and without intent. “Quasidelict under Art. 2176 is limited to negligent acts or omissions and excludes the notion of willfulness or intent. 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” (Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines, Vol. Vol. 1, 1985 ed., 72).

CHAPTER 1 INTRODUCTORY CONCEPTS

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Quasi-delict, known in Spanish legal treatises 6. as culpa aquiliana , is a civil law concept while “torts’’ is an Anglo-American or common law concept. Tort 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 (Gashem Shookat Baksh vs. Court of Appeals, et al., G.R. No. 97336, February 19, 1993). “Quasi-delict, as defined in Article 2176 of the 7. Civil Code, (which is known in Spanish legal treatises as culpa aquiliana , culpa extra-contractual or cuasi-delitos) is 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.” (Coca-Cola Bottlers Phils., Inc. vs. Court of Appeals, et al., G.R. No. 110295, October 18, 1993).

8. Howe Ho weve verr, in in cas cases es of sp spec ecia iall tor torts ts (s (see ee di disc scus us-sion in Chapter 7, infra.) , , willful acts may be made basis of an action for damages. “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 in jurious 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 Civi l 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.” (Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines, vol. 1, 1985 ed., 72). 9. The elements of a quasi-delict are (a) damages Elements of suffered by the plaintiff; (b) fault or negligence of the Quasi-delict defendant, or some other person for whose acts he must respond; and (c) the connection of cause and effect between the fault or negligence of the defendant and the damages incurred by the plaintiff (Taylor vs. Manila Elec-

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tric Company, 16 Phil. 8; Vergara vs. Court of Appeals, G.R. No. 77679, September 30, 1987, 154 SCRA 564).

10. While quasi-delict is limited to negligent acts or omissions and excludes intentional ones, said negligent acts may cover those which are punishable by law la w. Article 2176, where it refers to “fault or negligence,” covers not only acts “not punishable by law” but also acts criminal in character. In other words, culpa aquiliana includes voluntary and negligent acts which may be punishable by law. 11. In co cons nseq eque uenc nce, e, a negl neglige igent nt ac actt that that has has be been en made subject of a criminal case may at the same time be an object of an action for quasi-delict. 12. Ar 12. Artic ticle le 217 2176, 6, whe where re it ref refer erss to “f “fau ault lt or or negli negli-gence,” covers not only acts “not punishable by law” but also acts criminal in character character,, whether intentional and voluntary or negligent. Consequently, Consequently, a separate civil action lies against the offender in a criminal act, whether or not he is criminally prosecuted and found guilty or acquitted, provided that the offended party is not allowed, if he is actually charged also criminally, to recover damages on both scores, and would be entitled in such eventuality only to the bigger award of the two, assuming the awards made in the two cases vary. In other words, the extinction of civil liability referred to in par. (e) of Section 3, Rule 111, refers exclusively to civil liability founded on Article 100 of the Revised Penal Code, whereas the civil liability for the same act considered as a quasi-delict only and not as a crime is not extinguished even by a declaration in the criminal case that the criminal act charged has not happened or has not been committed by the accused (Elcano vs. Hill, G.R. No. L-24803, May 26, 1977). 13. “R 13. “Res espo pons nsib ibili ility ty for for fau fault lt or or negli neglige genc ncee unde underr [quasi-delict] is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the same act or omission of the defendant.” (Art. 2177, New Civil Code, or, or, NCC). 14. Culpa aquiliana is a separate legal institution under the Civil Code with a substantivity all its own,


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and individuality that is entirely apart and independent from a delict or crime (Castillo, et al. vs. Court of Appeals, et al., G.R. No. 48541, August 21, 1989, 176 SCRA 591). 15. According to the Code Commission: “The foregoing provision (Article 2177) though 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 aquiliana’ 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 extracontractual’ 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 negligence, 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.” (Report of the Code Commission, p. 162, cited in Elcano vs. Hill, supra). 16. The settled rule is that the same act or omission can create two kinds of liability on the part of the offender, that is, civil liability ex delicto and civil liability ex quasi delicto. Since the same negligence can give rise either to a delict or crime or to a quasi-delict or tort, either of these two types of civil liability may be enforced against the culprit, subject to the caveat under Article 2177 of the Civil Code that the offended party cannot recover damages under both types of liability (Jarantilla vs. Court of Appeals, G.R. No. 80194, March 21, 1989). 17. Some of the differences between crimes under the Penal Code and the culpa aquiliana or cuasi-delito under the Civil Code are: (a) that crimes affect the public interest, while cuasi-delitos are only of private concern; (b) that, consequently, the Penal Code punishes or corrects the criminal act, while the Civil Code, by means of indemnification, merely repairs the damage; and

Culpa aquiliana distinguished from culpa criminal

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(c) 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.” (See Barredo vs. Garcia, G.R. No. 48006, July 8, 1942, citing Colin and Capitant, “Curso Elemental de Derecho Civil,” Vol. 3, p. 728.). 18. May the civil action for culpa aquiliana and the criminal action for the same negligent act be filed simultaneously? The Supreme Court, in Rafael Reyes Trucking Corporation vs. People of the Philippines, et al., G.R. No. 129029, April 3, 2000 , first answered the question in the negative. 19. In Rafael Reyes Trucking Corporation case , the Provincial Prosecutor of Isabela filed with the Regional Trial Court an amended information charging Romeo Dunca y de Tumol with reckless imprudence resulting in double homicide and damage to property. Upon arraignment, the offended parties made a reservation to file a separate civil action against the accused arising from the offense charged. Thereafter, the offended parties actually filed with the Regional Trial Court a complaint against the employer of the driver based on quasi delict. Among the issues raised was whether the Court may award damages to the offended parties in the criminal case despite the filing of a civil action against the employer of the truck driver. The Supreme Court ruled that “[i]n negligence cases, the aggrieved party has the choice between (1) an action to enforce civil liability arising from crime under Article 1001 of the Revised Penal Code; and (2) a separate action for quasi delict under Article 2176 of the Civil Code of the Philippines. Once the choice is made, the injured party can not avail himself of any other remedy because he may not recover damages twice for the same negligent act or omission of the accused.

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Art. 100. Civil liability of a person guilty of felony. — Every person criminally liable for a felony is also civilly liable.


20. In other words, “the same act or omission can create two kinds of liability on the part of the offender, that is, civil liability ex delicto , and civil liability quasi delicto” either of which “may be enforced against the culprit, subject to the caveat under Article 2177 of the Civil Code that the offended party can not recover damages under both types of liability.” (Ibid.) 21. But the decision drew several dissents. Chief Justice Davide said “[t]he aggrieved parties in criminal cases may pursue their claims for damages either as delictual damages, or quasi-delictual damages under Article 2176 of the Civil Code, which the Code considers as “entirely distinct and separate from the civil liability arising from negligence under the Revised Penal Code.” 22. Justice Vitug, in his dissent, also said “[a]n early established rule under our law is that an act or omission, extra-contractual in nature, causing damage to another, there being fault or negligence can create two separate civil liabilities on the part of the offender, i.e., civil liability ex delicto and civil liability ex quasi delicto. Either one of these two possible liabilities may be sought to be enforced against the offender subject, however, to the caveat under Article 2177 of the Civil Code that the offended party cannot “recover damages twice for the same act or omission” or under both causes. Outside of this proscription, the two civil liabilities are distinct and independent of each other; thus, and conversely against the rule on double recovery, the failure of recovery in one will not necessarily preclude recovery in the other. 23. In the later case of Casupanan, et al. vs. Laroya, G.R. No. 145391, August 26, 2002 , concerning a vehicular accident involving two parties, each believing that the accident was caused by the fault of the other, the issue raised was whether an accused in a pending criminal case for reckless imprudence can validly file, simultaneously and independently, a separate civil action for quasi-delict against the private complainant in the criminal case. The Supreme Court held that “[a]lthough these two actions arose from the same act or omission, they have different causes of action. The criminal case is based on culpa criminal punishable under the Revised Penal

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Code while the civil case is based on culpa aquiliana actionable under Articles 2176 and 2177 of the Civil Code. 24. Under Section 1 of the present Rule 1112 , what is “deemed instituted” with the criminal action is only the action to recover civil liability arising from the crime or ex-delicto. All the other civil actions under Articles 32,

SECTION 1. Institution of Criminal and Civil Actions. — (a) When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action. The reservation of the right to institute separately the civil action shall be made before the prosecution starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation. When the offended party seeks to enforce civil liability against the accused by way of moral, nominal, temperate, or exemplary damages without specifying the amount thereof in the complaint or information, the filing fees therefor shall constitute a first lien on the judgment awarding such damages. Where the amount of damages, other than actual, is specified in the complaint or information, the corresponding filing fees shall be paid by the offended party upon the filing thereof in court. Except as otherwise provided in these Rules, no filing fees shall be required for actual damages. No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case, but any cause of action which could have been the subject thereof may be litigated in a separate civil action. (1a) (b) The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to include the corresponding civil action. No reservation to file such civil action separately shall be allowed. Upon filing of the aforesaid joint criminal and civil actions, the offended party shall pay in full the filing fees based on the amount of the check involved, which shall be considered as the actual damages claimed. Where the complaint or information also seeks to recover liquidated, moral, nominal, temperate or exemplary damages, the offended party shall pay additional filing fees based on the amounts alleged therein. If the amounts are not so alleged but any of these damages are subsequently awarded by the court, the filing fees based on the amount awarded shall constitute a first lien on the judgment. Where the civil action has been filed separately and trial thereof has not yet commenced, it may be consolidated with the criminal action upon application with the court trying the latter case. If the application is granted, the trial of both actions shall proceed in accordance with section 2 of this Rule governing consolidation of the civil and criminal actions.” 2


33, 34 and 2176 of the Civil Code are no longer “deemed instituted,” and may be filed separately and prosecuted independently even without any reservation in the criminal action. The failure to make a reservation in the criminal action is not a waiver of the right to file a separate and independent civil action based on these articles of the Civil Code. Verily, the civil actions based on these articles of the Civil Code are separate, distinct and independent of the civil action “deemed instituted” in the criminal action (Ibid.). 25. Under the present Rule 111, the offended party is still given the option to file a separate civil action to recover civil liability ex-delicto by reserving such right in the criminal action before the prosecution presents its evidence. Also, the offended party is deemed to make such reservation if he files a separate civil action before filing the criminal action. If the civil action to recover civil liability ex-delicto is filed separately but its trial has not yet commenced, the civil action may be consolidated with the criminal action. The consolidation under this Rule does not apply to separate civil actions arising from the same act or omission filed under Articles 323 ,

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ARTICLE 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: (1) Freedom of religion; (2) Freedom of speech; (3) Freedom to write for the press or to maintain a periodical publication; (4) Freedom from arbitrary or illegal detention; (5) Freedom of suffrage; (6) The right against deprivation of property without due process of law; (7) The right to a just compensation when private property is taken for public use; (8) The right to the equal protection of the laws; (9) The right to be secure in one’s person, house, papers, and effects against unreasonable searches and seizures; (10) The liberty of abode and of changing the same; (11) The privacy of communication and correspondence; (12) The right to become a member of associations or societies for purposes not contrary to law;

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33 4 , 34 5 and 2176 of the Civil Code. 26. It thus appears that an aggrieved party may file criminal case and civil case for quasi-delict on the same negligent act or omission. This, essentially, is the import also of the ruling of the Supreme Court in Sps. Santos, et al. vs. Pizardo, et al., G.R. No. 151452, July 29, 2005 when It said that “[a]n act or omission causing damage to another

(13) The right to take part in a peaceable assembly to petition the Government for redress of grievances; (14) The right to be free from involuntary servitude in any form; (15) The right of the accused against excessive bail; (16) The right of the accused to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witness in his behalf; (17) Freedom from being compelled to be a witness against one’s self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make such confession, except when the person confessing becomes a State witness; (18) Freedom from excessive fines, or cruel and unusual punishment, unless the same is imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional; and (19) Freedom of access to the courts. In any of the cases referred to in this article, whether or not the defendant’s act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and may be proved by a preponderance of evidence. The indemnity shall include moral damages. Exemplary damages may also be adjudicated. The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal Code or other penal statute. 4 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 independently of the criminal prosecution, and shall require only a preponderance of evidence. 5 ARTICLE 34. When a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property, such peace officer shall be primarily liable for damages, and the city or municipality shall be subsidiarily responsible therefor. The civil action herein recognized shall be independent of any criminal proceedings, and a preponderance of evidence shall suffice to support such action.


may give rise to two separate civil liabilities on the part of the offender, i.e., (1) civil liability ex delicto , under Article 100 of the Revised Penal Code; and (2) independent civil liabilities, such as those (a) not arising from an act or omission complained of as a felony, e.g., culpa contractual or obligations arising from law under Article 31 of the Civil Code, intentional torts under Articles 32 and 34, and culpa aquiliana under Article 2176 of the Civil Code; or (b) where the injured party is granted a right to file an action independent and distinct from the criminal action under Article 33 of the Civil Code. Either of these liabilities may be enforced against the offender subject to the caveat under Article 2177 of the Civil Code that the plaintiff cannot recover damages twice for the same act or omission of the defendant and the similar proscription against double recovery.” This is a return to the pronouncement of the Supreme Court in the early case of Elcano vs. Hill, supra, that “a separate civil action lies against the offender in a criminal act, whether or not he is criminally prosecuted and found guilty or acquitted, provided that the offended party is not allowed, if he is actually charged also criminally, to recover damages on both scores, and would be entitled in such eventuality only to the bigger award of the two, assuming the awards made in the two cases vary.” 27. In the event that the offended party files these two cases simultaneously or one after the other, should the civil case for quasi-delict be suspended to await the outcome of the criminal case for the same reckless or negligent act? Under Section 2, Rule 111 of the amended 1985 Rules of Criminal Procedure, a separate civil action, if reserved in the criminal action, could not be filed until after final judgment was rendered in the criminal action. If the separate civil action was filed before the commencement of the criminal action, the civil action, if still pending, was suspended upon the filing of the criminal action until final judgment was rendered in the criminal action. But this rule applies only to the separate civil action filed to recover liability ex-delicto. The rule does

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not apply to independent civil actions based on Articles 32, 33, 34 and 2176 of the Civil Code, which could proceed independently regardless of the filing of the criminal action (Id., Casupanan, et al. vs. Laroya). 28. “In the cases provided in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action may be brought by the offended party. It shall proceed independently of the criminal action and shall require only a preponderance of evidence. In no case, however, may the offended party recover damages twice for the same act or omission charged in the criminal action.” (Section 3, Rule 111 of the 2000 Rules of Criminal Procedure). 29. Inasmuch as an independent civil action may be filed before or during the pendency of the criminal case involving the same negligent act, a prefatory discussion is needed on the liability of employer in a criminal case against the negligent employee and the employer’s vicarious liability for the same negligent act of the employee in the separate and independent civil action for quasi-delict. 30. Thus, for instance, a reckless driver may be held civilly liable in the criminal case where he was convicted of reckless imprudence. The civil liability in this case is liability ex delicto. Should the employee be found to be insolvent, the civil aspect may be enforced against his employer under Art. 103 of the Revised Penal Code. 31. In the meantime, the employer may also be facing a civil action for quasi-delict proceeding from his vicarious liability as employer of the reckless driver under Article 2180, par. 5 of the Civil Code. 32. In the above instances, the plaintiff “cannot recover damages twice for the same act or omission of the defendant.” (Art. 2177, Civil Code). He will then have to choose which favorable judgment to enforce. 33. Distinction should be made between the subsidiary liability of the employer under the Revised Penal Code and the employer’s primary liability under the Civil Code which is quasi-delictual or tortious in character.


The first type of liability is governed by Articles 102 and 1036 of the Revised Penal Code while the second kind is governed by the provisions of the Civil Code. 34. Under Article 103 of the Revised Penal Code, liability originates from a delict committed by the employee who is primarily liable therefor and upon whose primary liability his employer’s subsidiary liability is to be based. Before the employer’s subsidiary liability may be proceeded against, it is imperative that there should be a criminal action whereby the employee’s criminal negligence or delict and corresponding liability therefor are proved. If no criminal action was instituted, the employer’s liability would not be predicated under Article 103. The conviction of the employee primarily liable is a condition sine qua non for the employer’s subsidiary liability. There can be no automatic subsidiary liability of defendant employer under Article 103 of the Revised Penal Code where his employee has not been previously criminally convicted (Franco vs. Intermediate Appellate Court, G.R. No. 71137, October 5, 1989). Under Articles 2176 and 2180 of the Civil Code, liability is based on culpa aquiliana which holds the em6

ARTICLE 102. Subsidiary civil liability of innkeepers, tavernkeepers and proprietors of establishments. — In default of the persons criminally liable, innkeepers, tavernkeepers, and any other persons or corporations shall be civilly liable for crimes committed in their establishments, in all cases where a violation of municipal ordinances or some general or special police regulation shall have been committed by them or their employees. Innkeepers are also subsidiarily liable for the restitution of goods taken by robbery or theft within their houses from guests lodging therein, or for the payment of the value thereof, provided that such guests shall have notified in advance the innkeeper himself, or the person representing him, of the deposit of such goods within the inn; and shall furthermore have followed the directions which such innkeeper or his representative may have given them with respect to the care of and vigilance over such goods. No liability shall attach in case of robbery with violence against or intimidation of persons unless committed by the innkeeper’s employees. ARTICLE 103. Subsidiary civil liability of other persons. — The subsidiary liability established in the next preceding article shall also apply to employers, teachers, persons, and corporations engaged in any kind of industry for felonies committed by their servants, pupils, workmen, apprentices, or employees in the discharge of their duties.

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ployer primarily liable for tortious acts of its employees subject, however, to the defense that the former exercised all the diligence of a good father of a family in the selection and supervision of his employees (Ibid.). 35. “An employer’s liability based on a quasi-delict is primary and direct, while the employer’s liability based on a delict is merely subsidiary. The words “primary and direct,” as contrasted with “subsidiary,” refer to the remedy provided by law for enforcing the obligation rather than to the character and limits of the obligation. Although liability under Article 2180 originates from the negligent act of the employee, the aggrieved party may sue the employer directly. When an employee causes damage, the law presumes that the employer has himself committed an act of negligence in not preventing or avoiding the damage. This is the fault that the law condemns. While the employer is civilly liable in a subsidiary capacity for the employee’s criminal negligence, the employer is also civilly liable directly and separately for his own civil negligence in failing to exercise due diligence in selecting and supervising his employee. The idea that the employer’s liability is solely subsidiary is wrong” (Cerezo vs. Tuazon, G.R. No. 141538, March 23, 2004). 36. In consequence, the civil action for quasi-delict against the employer may proceed even without the erring employee being impleaded. “The action can be brought directly against the person responsible (for another), without including the author of the act. The action against the principal is accessory in the sense that it implies the existence of a prejudicial act committed by the employee, but it is not subsidiary in the sense that it can not be instituted till after the judgment against the author of the act or at least, that it is subsidiary to the principal action; the action for responsibility (of the employer) is in itself a principal action.” (Ibid.). Pre-existing contract generally bars quasidelict

37. By definition, the pre-existing contract between the parties bar the applicability of the law on quasidelict.


Thus, in a case involving a stabbing incident inside the campus where the assailants were not students or employees of the school, the Supreme Court refused to apply the rules on quasi-delict as “the circumstances of the present case evince a contractual relation between the PSBA and Carlitos Bautista.” Said the Supreme Court, “[a] perusal of Article 2176 shows that obligations arising from quasi-delicts or tort, also known as extra-contractual obligations, arise only between parties not otherwise bound by contract, whether express or implied.” (Philippine School of Business Administration, et al. vs. Court of Appeals, G.R. No. 84698, January 4, 1992). 38. However, in a number of cases, the mere ex- Exceptions istence of a contract does not automatically negate the existence of quasi-delict. In Singson vs. Bank of the Philippine Islands, (23 SCRA 1117 [1968]) , it was stated that “the existence of a contract between the parties does not bar the commission of a tort by the one against the other and the consequent recovery of damages therefor.” 39. Likewise, in Air France vs. Carrascoso, 18 SCRA 155, involving an airplane passenger who, despite his first-class ticket, had been illegally ousted from his firstclass accommodation and compelled to take a seat in the tourist compartment, was held entitled to recover damages from the air-carrier, upon the ground of tort on the latter’s part, for, although the relation between the passenger and a carrier is ‘contractual both in origin and nature . . . the act that breaks the contract may also be a tort.’ 40. 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 (Philippine School of Business Administration, et al. su pra, citing Austro-America S.S. Co. vs. Thomas, 248 Fed. 231). 41. Hence, where the liability may itself be deemed to arise from quasi-delict , i.e. , the act which breaks the contract may also be a quasi-delict, the mere fact that there was pre-existing contract will not preclude a find-

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ing of quasi-delict . “Otherwise put, liability for quasi-delict may still exist despite the presence of contractual relations” (Coca-Cola Bottlers Philippines, Inc. vs. Court of Appeals, et al., G.R. No. 110295, October 18, 1993). 42. “In order that an obligation based on quasidelict may arise, there must be no pre-existing contractual relation between the parties. But there are exceptions. There may be an action for quasi-delict notwithstanding that there is a subsisting contract between the parties. 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, the contract can be said to have been breached by tort, thereby allowing the rules on tort to apply.” (Light Rail Transit Authority, et al. v. Navidad, et al., G.R. No. 145804, February 6, 2003, 397 SCRA 75). 43. This doctrine can aptly govern only where the act or omission complained of would constitute an actionable tort independently of the contract. The test (whether a quasi-delict can be deemed to underlie 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 actionable tort by itself, the fact that the parties are contractually bound is no bar to the application of quasi-delict provisions to the case (FEBTC vs. Court of Appeals, et al., G.R. No. 108164, February 23, 1995). 44. Generally, liability for tort arises only between parties not otherwise bound by a contract. An academic institution, however, may be held liable for tort even if it has an existing contract with its students, since the act that violated the contract may also be a tort (Regino vs. Pangasinan Colleges of Science and Tech., et al., G.R. No. 156109, November 18, 2004). Culpa 45. Another point calling for distinction is the aquiliana negligence in culpa contractual cases. Inasmuch as culpa distinguished aquiliana requires for its existence a negligent act of from culpa party, what distinguishes culpa aquiliana from culpa concontractual

tractual?


“The difference is that [in culpa aquiliana], “culpa [is] substantive and independent, which of itself constitutes the source of an obligation between persons not formerly connected by any legal tie” [while in culpa contractual], culpa [is] considered as an “accident in the performance of an obligation already existing . . ..” (Cangco vs. Manila Railroad Co., G.R. No. 12191, October 14, 1918). Negligence, thus, in culpa contractual is only incidental to the performance of the obligation. The negligence in culpa aquiliana is direct and primary. 46. Culpa, or negligence, may be understood in two different senses, either as culpa , substantive and independent, which of itself constitutes the source of an obligation between two persons not formerly bound by any other obligation; or as an incident in the performance of an obligation which already existed, which can not be presumed to exist without the other, and which increases the liability arising from the already existing obligation (Manila Railroad Co. vs. La Compania Transatlantica, G.R. No. 11318, October 26, 1918). 47. Culpa , or negligence, may [either be] culpa aquiliana , which is the wrongful or negligent act or omission which creates a vinculum juris and gives rise to an obligation between two persons not formally bound by any other obligation, or culpa contractual , which is the fault or negligence incident in the performance of an obligation which already existed, and which increases the liability from such already existing obligation. Culpa aquiliana is governed by Article 2176 of the Civil Code and the immediately following Articles; while culpa contractual is governed by Articles 1170 to 1174 of the same Code (Sps. Batal vs. Sps. Tominaga, G.R. No. 164601, September 27, 2006). 48. Quasi-delict , also known as culpa aquiliana or culpa extra contractual , has as its source the negligence of the tortfeasor. The breach of contract or culpa contractual , is premised upon the negligence in the performance 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 con-

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tract, 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 (Calalas vs. Court of Appeals, G.R. No. 122039, May 31, 2000). Special issues involving culpa aquiliana and culpa contractual

49. As the attendant negligence in culpa contractual is different from the attendant negligence in culpa aquiliana , can one institute a civil case against different sets of defendants, one based on culpa contractual and the other based on culpa aquiliana? Clarifying decisions in the past, the Supreme Court answered the question in the affirmative in its fairly recent ruling in the case of Construction Development Corporation of the Philippines vs. Estrella, et al., G.R. No. 147791 , September 8, 2006. The Supreme Court ruled: “[t] he owner of the other vehicle which collided with a common carrier is solidarily liable to the injured passenger of the same. The same rule of liability was applied in situations where the negligence of the driver of the bus on which plaintiff was riding concurred with the negligence of a third party who was the driver of another vehicle, thus causing an accident. In Anuran v. Buño, Batangas Laguna Tayabas Bus Co. v. Intermediate Appellate Court, and Metro Manila Transit Corporation v. Court of Appeals, the bus company, its driver, the operator of the other vehicle and the driver of the vehicle were jointly and severally held liable to the injured passenger or the latter’s heirs. The basis of this allocation of liability was explained in Viluan v. Court of Appeals , thus: Nor should it make any difference that the liability of petitioner [bus owner] springs from contract while that of respondents [owner and driver of other vehicle] arises from quasi-delict. As early as 1913, we already ruled in Gutierrez vs. Gutierrez, 56 Phil. 177 , that in case of injury to a passenger due to the negligence of the driver of the bus on which he was riding and of the driver of another vehicle, the drivers as well as the owners of the two vehicles are jointly and severally liable for damages.” (Construction Development Corporation of the Philippines vs. Estrella, et al., G.R. No. 147791 , September 8, 2006). 50. But what if instead of filing one case founded on both culpa aquiliana and culpa contractual , the victim


files two separate cases, one founded on culpa aquiliana and the other founded on culpa contractual , , but both operating under the same set of facts and arising from the same factual circumstances? 51. Th 51. Thee Sup Supre reme me Co Cour urtt in in the the ol old d cas casee of of Joseph vs. Bautista, G.R. No. 41423, February 23, 1989 intimated that this may not be done because while there may be several rights of action, there is but a single cause of action. In Joseph, it was ruled: “[i]t is true that a single act or omission can be violative of various rights at the same time, as when the act constitutes juridically a violation of several separate and distinct legal obligations. However, where there is only one delict or wrong, there is but a single cause of action regardless of the number of rights that may have been violated belonging to one person. The singleness of a cause of action lies in the singleness of the delict or wrong violating the rights of one person. Nevertheless, if only one injury resulted from several wrongful acts only one cause of action arises. The trial court was, therefore, correct in holding that there was only one cause of action involved although the bases of recovery invoked by petitioner against the defendants therein were not necessarily identical since the respondents were not identically circumstanced. However, a recovery by the petitioner under one remedy necessarily bars recovery under the other. This, in essence, is the rationale for the proscription in our law against double recovery for the same act or omission which, obviously, stems from the fundamental rule against unjust enrichment.” 52. In an anot othe herr cas case, e, it it was was hel held d that that “a “a pass passen enge gerr of a public utility vehicle involved in a vehicular accident may sue on culpa contractual, culpa aquiliana or culpa criminal — each remedy being available independently of the others — although he cannot recover more than once.” However, the case hinted that the same constitutes forum-shopping (First Philippine International Bank, et al. vs. Court of Appeals, G.R. No. 115849, January 24, 1996).

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Even in the earlier case of Vda de Severo et al. vs. Go, et al., G.R. No. L-44330, January 29, 1988, it was mentioned that once the choice of forum and remedy has been made, the claimants are bound thereby and may no longer pursue the alternative course, in consonance with the established principles that enjoin multiplicity of suits and splitting a cause of action. 53. Bu 53. Butt a cau cause se of of act action ion is und under ersto stood od to be th thee act or omission by which a party violates a right of another (Section 2, Rule 3, Revised Rules of Civil Procedure). And “there is no precise rule for determining what makes an entire cause of action. It depends upon the facts and circumstances of the particular case and the decisions of the different courts are not always in harmony in their application of the rule to particular cases. In the determination of this question, various tests have been suggested and applied, such as whether the same evidence is necessary to support all branches of the claim or whether the claim rests upon one or several acts or agreements, but in the latter case it must be remembered that separate causes of action, for which separate actions may be maintained, may arise not only out of separate and distinct acts, contracts or transactions, but also in some cases, out of the same act, contract, or transaction” (The Revised Rules of Court in the Philippines, Vol. 1, page 104, by Vicente Vicente J. Francisco). In the case of passengers injured by reason of the negligence of the bus driver, the negligent act of the driver may bring about an action for culpa contractual against the operator of the bus and culpa aquiliana for the negligent act of selecting and supervising the employee-driver. It needs to be borne in mind that culpa aquiliana and culpa contractual are separate legal institutions, and are subject to different requirements and defenses. While culpa contractual requires extraordinary diligence, culpa aquiliana , on the other hand, only calls for due diligence in the selection and supervision of employees. In culpa contractual , , the defense of due diligence in the selection and supervision of employees is not available. In fact, in Art. 1759 of the Civil Code, common carriers are liable for death of or injuries to passengers


caused by negligence or willful acts of their employees. More importantly, “in an action based on a contract of carriage, the court need not make an express finding of fault or negligence on the part of the carrier in order to hold it responsible for the payment of the damages sought by the passenger. By the contract of carriage, the carrier assumed the express obligation to transport the passengers to their destination safely and to observe extraordinary diligence with a due regard for all the circumstances, and any injury that might be suffered by its passengers is right away attributable to the fault or negligence of the carrier” (Batangas Laguna Tayabas Bus Com pany, et al. vs. Intermediate Appellate Court, et al., G.R. No. 74387-90, November 14, 1988, citing Art. 1756, New Civil Code). In fact, in the United States, the prevailing rule is “Where separate actions may be brought for injury to person and to property resulting from the same wrongful act, a judgment in an action for the injury to the person or property is not a bar to the maintenance of an action for the injury to the other, whether the judgment in the earlier case is in favor of the plaintiff or the defendant. However, However, the judgment in the first firs t action may preclude the relitigation of identical issues in the second action.” (74 Am Jur 2d, at p. 669). 55. Of co cour urse se a pa part rty y may may op optt not not to to file file sep separa arate te suits but instead institute but one case and allege alternative causes of action for culpa contractual and culpa aquiliana. This was expressly allowed by the Supreme Court in the case of Fabre, Jr. et al. vs. Court of Appeals, et al., G.R. No. 111127, July 26, 1996 where it was held that it is permitted for a party “to allege alternative causes of action and join as many parties as may be liable on such causes of action so long as plaintiffs do not recover twice for the same injury.” 56. An Anen entt the the qu ques estio tion n of of whe wheth ther er an agg aggri riev eved ed party can institute an action for culpa contractual after having instituted a criminal case for reckless imprudence against the driver of the passenger vehicle, the Supreme Court has settled the issue with definiteness when It ruled in the old case of Emerenciana Vda. De Medina, et al.

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vs. Cresencia, et al., G.R. No. L-8194, July 11, 1956 , that “plaintiffs’ action for damages is independent of the criminal case and based, not on the employer’s subsidiary liability under the Revised Penal Code, but on a breach of the carrier’s carrier ’s contractual obligation to carry his passengers safely to their destination (culpa contractual). x x x [I]n culpa contractual , , the liability of the carrier is not merely subsidiary or secondary, but direct and immediate (Articles 1755, 1756, and 1759, New Civil Code).”

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CHAPTER 2 ELEMENTS OF QUASI-DELICT 1. Going by definition of quasi-delict under Negligence Article 2176 of the Civil Code, it can be said that an defined action for quasi-delict is founded on the existence of a negligent act. A discussion, thus, of the concept of negligence is in order. 2. Negligence is statutorily defined to be the omission of that degree of diligence which is required by the nature of the obligation and corresponding to the circumstances of persons, time and place (Art. 1173, NCC). It is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would do (Philippine Bank of Commerce v. Court of Appeals, G.R. No. 97626, 14 March 1997). 3. It also refers to the conduct which creates undue risk of harm to another, the failure to observe that degree of care, precaution and vigilance that the circumstance justly demand, whereby that other person suffers injury (Smith Bell Dodwell Shipping Agency Corporation v. Borja, G.R. No. 143008, 10 June 2002). While the law relating to negligence in this jurisdiction may possibly be somewhat different from that in Anglo-Saxon countries, the rules under which the fact of negligence is determined are, nevertheless, generally the same. That is to say, while the law designating the person responsible for a negligent act may not be the same here as in many jurisdictions, the law determining what is a negligent act is the same here, generally speaking, as elsewhere. (Supreme Court of Spain, 4 Decem ber, 1903; 16 May, 1893; 27 June, 1894; 9 April, 1896; 14 23

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March, 1901; 2 March, 1904; 7 February, 1905; 16 June, 1905; 23 June, 1905; 13 April, 1903; 7 March, 1902; 12 June, 1900; 2 March, 1907; 18 March, 1898; 3 June, 1901 cited in S.D. Martinez vs. Buskirk, G.R. No. L-5691, December 27, 1910). Test to determine existence of negligence

4. 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. 5. The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law. The existence of negligence in a given case is not determined by reference to the personal judgment of the actor in the situation before him. The law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence and determines liability by that. (Picart vs. Smith, 37 Phil. 809 (1918). 6. The question as to what would constitute the conduct of a prudent man in a given situation must of course be always determined in the light of human experience and in view of the facts involved in the particular case. Abstract speculations cannot be here 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 borne of this provision, is always necessary before negligence can be held to exist (Picart vs. Smith, supra; also, People v. De los Santos, G.R. No. 131588, 27 March 2001). 7. Foreseeability of the harm is therefore an indispensable requirement. Thus, in a case where the

CHAPTER 2 ELEMENTS OF QUASI-DELICT

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Supreme Court found that the actor could not have reasonably foreseen the harm that would befall him, it was ruled that he was not guilty of negligence (Civil Aeronautics Administration vs. Court of Appeals, et al., G.R. No. L-51806, November 8, 1988). 8. In the civil law and at common law, three Degrees of degrees of negligence were recognized, namely, slight negligence negligence, ordinary negligence and gross negligence. Slight negligence is the failure to exercise great or extraordinary care. Ordinary negligence is the want of ordinary care and diligence, that is, such care and diligence as an ordinarily prudent person would exercise under the same or similar circumstances. Gross negligence is materially greater than ordinary negligence, and consists of an entire absence of care or an absence of even slight care or diligence; it implies a thoughtless disregard for consequences or an indifference to the rights or welfare of others (cf., 65 CJS at pp.536-539). 9. The concept itself is relative and compara- Nature of the tive. The degree of care to be exercised depends upon concept person, place and time. “Negligence is want of care required by the circumstances. It is a relative or comparative not an absolute term, and its application depends upon the situation of the parties, and the degree of care and vigilance which the circumstances reasonably impose.” (U.S. vs. Juanillo, G.R. No. 7255, October 3, 1912). 10. The operator of an automobile is bound to exercise care in proportion to the varying danger and risks of the highway and commensurate with the dangers naturally incident to the use of such vehicle. He is obliged to take notice of the conditions before him, and if it is apparent that by a particular method of proceeding he is liable to work an injury, it is his duty to adopt some other or safer method if within reasonable care and prudence he can do so. In determining the degree of care an operator of an automobile should use, when on the highway, it is proper to take into consideration the place, presence or absence of other travelers, the speed of the automobile, its seize, appearance, manner of movement, and the amount of notice it makes, and

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anything that indicates unusual or peculiar danger. Also, the degree of care required to be exercised varies with the capacity of the person endangered to care for himself. Thus, it has been held not to be negligence per se in a boy of six to play on the highway, where an automo bile came up on him under circumstances which produced fright and terror, and thus caused an error of judgment by which the body ran in front of the automobile. (Thies vs. Thomas, 77 N. Y. Supp., 276.) And in Apperson vs. Lazaro (Ind. App.), 87 N. E., 97, where an automobile approached an infirm person from the car at a high rate of speed and startled him so that in order to avoid the injury he jumped aside and was struck by the automo bile, the court said that the conduct of the operator of the automobile was an unreasonable abridgment of the pedestrian’s right to the road (Ibid.). 11. In the above US case, the road on which they were traveling was dotted with simple rural folk. It was Sunday afternoon and the road connected two rather populous towns that were close together. The victims were two native farmers who all their lives have seen nothing that moves faster than a bull cart, except in the two or three occasions on which they testify they have visited Iloilo, who cannot be expected to give an intelligent idea of speed of an automobile, train, or even a fast horse. The accused- chaffuer, being in charge of the powerful machine, capable of doing great damage if not skillfully manipulated, was bound to use a high degree of care to avoid injuring these native farmers, who had a common right to the highway. 12. In Taylor vs. Manila Electric Railroad, et al., G.R. No. 4977, March 22, 1910, it was said that “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.” Also, where the danger is great, the degree of care required is greater.


13. “A coachman or driver, who had driven the horses composing his team for a considerable time, during which the animals have shown no disposition to become unruly, left his team as usual and was assisting in unloading the wagon when the horses bolted and running into the plaintiffs’ carriage caused personal in juries to the plaintiff and damage to the vehicle was not held guilty of negligence where it was shown that to leave teams under like circumstances and to assist in unloading the wagon, is the custom of drivers in the city and that the custom is sanctioned by employers. Acts, the performance of which has not proven destructive or injurious and which have been generally acquiesced in by society for so long a time as to have ripened into a custom, can not be held to be unreasonable or imprudent and that, under the circumstances, the driver was not guilty of negligence in so leaving his team while assisting in unloading his wagon” (S.D. Martinez vs. Buskirk, G.R. No. L-5691, December 27, 1910). 14. 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 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 the same or similar circumstances (Ylarde et al. vs. Aquino, et al., G.R. No. L-33722, July 29, 1988). 15. In numerous occasions, our Supreme Court has emphasized that the banking business is impressed with public interest. Consequently, the highest degree of diligence is expected, and high standards of integrity and performance are even required of it. By the nature of its functions, a bank is under obligation to treat the accounts of its depositors with meticulous care. (Associated Bank [now Westmont Bank] vs. Tan, G.R. No. 156940, December 14, 2004). 16. The same high degree of diligence is demanded among electric companies considering that

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“electricity is an agency, subtle and deadly.” The measure of care required of electric companies must be commensurate with or proportionate to the danger. The duty of exercising this high degree of diligence and care extends to every place where persons have a right to be (Astudillo vs. Manila Electric Co., G.R. No. 33380, December 17, 1930). Factors to be considered

17. In considering negligence, among the factors to be taken into consideration are (1) his employment or occupation; (2) his degree of intelligence; (3) his physical condition; and (4) other circumstances regarding persons, time and place (cf., Pangonorom, et al. vs. People of the Philippines, G.R. No. 143380, April 11, 2005). 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 with the importance of the act which he is to perform (U. S. vs. Reyes, 1 Phil. Rep., 375, 377). 18. Thus, where one is a professional public utility driver, it was nighttime and it had just rained, it was still drizzling and the road was slippery when the sub ject incident took place, and the bus was moving downhill, but the driver did not slow down but was instead running very fast, the Supreme Court ruled there was negligence on the part of the driver (Ibid. , Pangonorom et al. vs. People). Also, “it is the duty of any person driving a vehicle, and especially a street car, in the public thoroughfares to reduce the same to control ready to be stopped at any moment if he sees a child below the age of understanding in such a place that is can, by any reasonable chance, place itself in a dangerous position with respect to the vehicle. In such case the vehicle must be under such control that, if the child, by some sudden or unusual movement, places itself in the way of the vehicle, it can be stopped in time to avert injury.” (United States vs. Clemente, G.R. No. 8142, January 25, 1913). But “boys 10 or 12 years of age who are permitted to go about unattended may fairly be presumed to have sense enough to take care of themselves from the ordinary and usual dangers of street traffic” (United States vs. Knight, G.R. No. 8561, December 4, 1913).


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19. Mere intoxication is not negligence, nor does the mere fact of intoxication establish a want of ordinary care. If a person’s conduct is characterized by a proper degree of care and prudence, it is immaterial whether he is drunk or sober (Wright vs. Manila Electric Company, G.R. No. 7760, October 1, 1914). 20. If the law or contract does not state the diligence which is to be observed in the performance, that which is expected of a good father of a family shall be required. (Art. 1173, NCC). In the absence of stipulation or legal provision providing the contrary, the diligence to be observed in the performance of the obligation is that which is expected of a good father of a family (Syquia vs. Court of Appeals, et al., G.R. No. 98695, January 27, 1993). 21. Lesser in degree compared to extraordinary diligence required of common carriers, diligence of good father of family may be likened to the requirement of ordinary diligence. “The usual standard of care is such care as a prudent person would exercise under the circumstances of a particular case.” (65 CJS 598). 22. But to constitute quasi-delict , it is not enough to establish negligence. It is equally imperative that the fault or negligence be the proximate cause of the damage or injury suffered by the plaintiff (See American Ex press International vs. Cordero, G.R. No. 138550, October 14, 2005). 23. Proximate cause has been defined as: “. . . Proximate ‘that cause, which, in natural and continuous sequence, cause defined unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.’ And more comprehensively, the proximate legal cause is that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as

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an ordinary prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom.” (McKee vs. Intermediate Appellate Court, G.R. No. 68102, July 16, 1992). 24. “Proximate cause is determined by the facts of each case upon mixed considerations of logic, common sense, policy and precedent” (The Consolidated Bank & Trust Co. v. Court of Appeals, G.R. No. 138569, September 11, 2003, 410 SCRA 562). 25. The term has also been defined as the dominant or immediate cause; the cause that sets the others in motion; the efficient cause; the one that necessarily sets the other causes in operation. An act or omission is not the proximate cause of an injury unless, had it not happened, the injury would not have occurred. The proximate cause need not be the sole cause, or necessarily the direct cause, or the one which is nearest in time or place to the result (86 C.J.S. 943). 26. We seem to have also the adopted the above “but-for” test because “[t]he 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.” (PLDT, Inc. vs. Court of Appeals, G.R. No. 57079, September 29, 1989). Concurrence of efficient causes

27. In order to render a person liable, negligence 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, a person is not relieved from liability because he is responsible for only one of them, it being sufficient that the negligence of the person charged with injury is an efficient cause without which the injury would not have resulted to as great an extent, and that such cause is not attributable to the person injured. It is no defense to one of the concurrent tortfeasors that the injury would not have resulted from his negligence alone,


without the negligence or wrongful acts of the other concurrent tortfeasor. Where several causes producing an injury are concurrent and each is an efficient cause without which the injury would not have happened, the in jury may be attributed to all or any of the causes and recovery may be had against any or all of the responsible persons although under the circumstances of the case, it may appear that one of them was more culpable, and that the duty owed by them to the injured person was not the same. No actor’s negligence ceases to be a proximate cause merely because it does not exceed the negligence of other actors. Each wrongdoer is responsible for the entire result and is liable as though his acts were the sole cause of the injury (Far Eastern Shipping Co. vs. Court of Appeals, et al., G.R. No. 130068 & 130150, October 1, 1998). 28. The burden of proving negligence that is the Burden of proximate cause of the quasi-delict is on the one alleging proof the same. The person who alleged negligence must prove it (Cea vs. Villanueva, G.R. No. L-5446, March 10, 1911). A person claiming damages for the negligence of another has the burden of proving the existence of such fault or negligence causative thereof. The facts constitutive of negligence must be affirmatively established by competent evidence. Whosoever relies on negligence for his cause of action has the burden in the first instance of proving the existence of the same if contested, otherwise his action must fail (PLDT vs. Court of Appeals, supra). 29. If negligence is not established, there can be no damages. “Where it appears that an injury was received in an accident1 , without the intervention of negDefined as an occurrence by chance, and not as expected. As used in the phrase “injury arising by accident in compensation statutes, the term is interpreted in the popular and ordinary sense, and is generally construed as meaning an occurrence which is neither expected, designed, nor intentionally caused by the workman. (Ballentine’s Law Dictionary, p. 11.) An act of God has been 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 (Nakpil & Sons vs. Court of Appeals, G.R. No. L-47851, October 3, 1986, citing 1 Corpus Juris 1174). 1

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ligence of any kind, no damages can be recovered by reason of such injury.” (Brown vs. Manila Electric Railroad and Light Company, G.R. No. 6666, October 24, 1911). Presumptions of negligence

30. There are instances, however, when negligence is presumed by law. 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 (Article 2184, NCC). 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 (Article 2185, NCC). 31. Art. 2185 does not apply to non-motorized vehicles, even if by analogy. 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 (Anonuevo vs. Court of Appeals, et al., G.R. No. 130003, October 20, 2004). 32. The bus driver, who was driving at a speed too high to be safe and proper at or near an intersection on the highway, and in any case too high to be able to slow down and stop behind the cars which had preceded it and which had stopped at the intersection, chose to swerve to the left lane and overtake such preceding vehicles, entered the intersection and directly smashed into the jeepney within the intersection. Immediately before the collision, the bus driver was actually violating the following traffic rules and regulations, among others, in the Land Transportation and Traffic Code, Republic Act No. 4136, as amended (Section 35 [a], 41 a


& c). Thus, a legal presumption arose that the bus driver was negligent (Kapalaran Bus Line vs. Coronado, G.R. No. 85331, August 25, 1989). 33. There is prima facie 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, except when the possession or use thereof is indispensable in his occupation or business (Article 2188, NCC). 34. Also, “[w]here the thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want of care.” (Cooley on Torts, Vol. 3, p. 369). 35. As Black’s Law Dictionary puts it: “Res ipsa Res ipsa loquitur. The thing speaks for itself. Rebuttable presump- loquitur tion or inference that defendant was negligent, which defined arises upon proof that instrumentality causing injury was in defendant’s exclusive control, and that the accident was one which ordinarily does not happen in absence of negligence. Res ipsa loquitur is rule of evidence whereby negligence of alleged wrongdoer may be inferred from mere fact that accident happened provided character of accident and circumstances attending it lead reasonably to belief that in absence of negligence it would not have occurred and that thing which caused injury is shown to have been under management and control of alleged wrongdoer. Hillen v. Hooker Const. Co., Tex. Civ. App., 484 S.W. 2d 133, 155. Under doctrine of “res ipsa loquitur” the happening of an injury permits an inference of negligence where plaintiff produces substantial evidence that injury was caused by an agency or instrumentality under exclusive control and management of defendant, and that the occurrence was such that in the ordinary course of things would not happen if reasonable care had been used.” (Layugan vs. Intermediate Appellate Court, G.R. No. 73998, November 14, 1988).

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36. In this jurisdiction, we have applied this doctrine in quite a number of cases, notably in Africa et al. vs. Caltex, Inc., et al. (L-12986, March 31, 1966, 16 SCRA 448), and the latest is in the case of F.F. Cruz and Co., Inc. vs. CA (L-52732, August 29, 1988). 37. The doctrine of Res ipsa loquitur as a rule of evidence 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. The doctrine is not a rule of substantive law but merely a mode of proof or a mere procedural convenience. The rule, when applicable to the facts and circumstances of a particular case, is not intended to and does not dispense with the requirement of proof of culpable negligence on the part of the party charged. It merely determines and regulates what shall be prima facie evidence thereof and facilitates the burden of plaintiff of proving a breach of the duty of due care (Corpus Juris Secundum, Vol. 65A). It is not a rule of substantive law and, as such, it does not create an independent ground of liability. Instead, it is regarded as a mode of proof, or a mere procedural convenience since it furnishes a substitute for, and relieves the plaintiff of, the burden of producing specific proof of negligence. The maxim simply places on the defendant the burden of going forward with the proof. Resort to the doctrine may be allowed only when (a) the event is of a kind which does not ordinarily occur in the absence of negligence; (b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and (c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff. Thus, it is not applicable when an unexplained accident may be attributable to one of several causes, for some of which the defendant could not be responsible (FGU Insurance Corp. vs. G. P. Sarmiento Trucking Corp. et al., G.R. No. 141910, August 6, 2002). 38. The doctrine can be invoked when and only when, under the circumstances involved, direct evidence is absent and not readily available. 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 eludicated that no inference of defendant’s liability can reasonably be made, whatever the source of the evidence (Ibid.). 39. The presumption of res ipsa loquitur therefore applies when there is no direct proof or evidence of cause of injury but the thing or instrumentality causing injury is under the exclusive control and use of the defendant and the accident is one which ordinarily does not happen unless one is negligent. 40. Res ipsa loquitur is an evidentiary presumption, therefore, it is not to be invoked to overcome evidence but to be applied only in its absence. Hence, whenever the doctrine is applied, the query is not whether the accident rarely happens, but that whether when it occurs, it is ordinarily the result of negligence. 41. Res ipsa loquitur has application only to the law of negligence (63 AmJur 2d at 721). It is confined only to cases of pure (non-contractual) tort since obviously the presumption of negligence in culpa contractual immediately attaches by a failure of the covenant or its tenor (FGU Insurance Corp. vs. G. P. Sarmiento Trucking Corp. et al., supra). 42. Where the doctrine is applicable, all that the plaintiff must prove is the accident itself; no other proof of negligence is required beyond the accident itself. It relates to the fact of an injury that sets out an inference to the cause thereof or establishes the plaintiff’s prima facie case. The doctrine rests on inference and not on presumption. The facts of the occurrence warrant the supposition of negligence and they furnish circumstan-

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tial evidence of negligence when direct evidence is lacking. The doctrine is based on the theory that the defendant either knows the cause of the accident or has the best opportunity of ascertaining it and the plaintiff, having no knowledge thereof, is compelled to allege negligence in general terms. In such instance, the plaintiff relies on proof of the happening of the accident alone to establish negligence. The doctrine provides a means by which a plaintiff can pin liability on a defendant who, if innocent, should be able to explain the care he exercised to prevent the incident complained of. Thus, it is the defendant’s responsibility to show that there was no negligence on his part (Perla Compania de Seguros, Inc. vs. Sps. Sarangaya, G.R. No. 147746, October 25, 2005). 43. Whether a person is negligent or not is a question of fact (Thermochem Incorporated v. Naval, G.R. No. 131541, 20 October 2000, 344 SCRA 76).

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CHAPTER 3 NATURE OF LIABILITY 1. The responsibility of two or more persons Liability of who are liable for quasi-delict is solidary (Art. 2194, NCC), tortfeasors and the sharing as between such solidary debtors is prorata (Singapore Airlines Limited vs. Court of Appeals, et al., G.R. No. 107356, March 31, 1995). 2. There is no contribution between joint tortfeasors whose liability is solidary since both of them are liable for the total damage. Where the concurrent or successive negligent acts or omissions of two or more persons, although acting independently, are in combination the direct and proximate cause of a single injury to a third person, it is impossible to determine in what proportion each contributed to the injury and either of them is responsible for the whole injury. Where their concurring negligence resulted in injury or damage to a third party, they become joint tortfeasors and are solidarily liable for the resulting damage under Article 2194 of the Civil Code (Far Eastern Shipping Co. vs. Court of Appeals, G.R. No. 130068 & 130150, October 1, 1998). 3. The release of one tortfeasor does not operate to release the others. Under American jurisprudence, three rules have developed which deal with the question of whether the release of one joint tortfeasor releases other tortfeasors who are not parties to or named in the release. The first is the ancient common-law rule that a release of one joint tortfeasor releases all other parties jointly liable, regardless of the intent of the parties. The second, otherwise known as the “First Restatement rule,” states that a release of one co-conspirator normally releases all others unless the plaintiff expressly 37

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reserves his rights against the others. The third provides that the effect of the release upon co-conspirators shall be determined in accordance with the intentions of the parties. (Republic of the Philippines vs. Sandiganbayan, et al., G.R. No. 92594, March 4, 1994). 4. In Zenith Radio Corp. vs. Hazeltine Research, Inc. , the Supreme Court of the United States adopted the third rule. The Court observed that “[t]o adopt the ancient common-law rule would frustrate . . . partial settlements, and thereby promote litigation, while adoption of the First Restatement rule would create a trap for unwary plaintiffs’ attorneys.” (Republic vs. Sandiganbayan, Ibid.). Doctrine of vicarious liability defined

5. The obligation imposed by Article 2176 is demandable not only for one’s own acts or omissions, but also for those of persons for whom one is responsible. (Art. 2180, NCC). This is otherwise referred to as the doctrine of vicarious liability or imputed negligence.

Rationale

6. Explaining the doctrine, it was held that “[w]ith 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 responsibility 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 reasons of their status, occupy a position of dependency with respect to the person made

CHAPTER 3 NATURE OF LIABILITY

liable for their conduct.” (Cangco vs. Manila Railroad Co., 38 Phil. 768 (1918). 7. The responsibility imposed arises by virtue of a presumption juris tantum of negligence on the part of the persons made responsible under the article, derived from their failure to exercise due care and vigilance over the acts of subordinates to prevent them from causing damage. Negligence is imputed to them by law, unless they prove the contrary. Thus, the last paragraph of the article says that such responsibility ceases if it is proved that the persons who might be held responsible under it exercised the diligence of a good father of a family (diligentissimi patris familias) to prevent damage. It is clear, therefore, that it is not representation, nor interest, nor even the necessity of having somebody else answer for the damages caused by the persons devoid of personality, but it is the non-performance of certain duties of precaution and prudence imposed upon the persons who become responsible by civil bond uniting the actor to them, which forms the foundation of such responsibility (Metro Manila Transit Corporation vs. Court of Appeals, et al., G.R. No. 104408, June 21, 1993). 8. Vicarious liability is a primary and direct liability. It is not subsidiary to the liability of the person for whom one is made vicariously liable of. Although the negligence is simply imputed in the sense that it arises from the act or omission of the person under one’s care or control, the act being punished is the negligent act of the one made vicariously liable. Hence, he may be proceeded against singly or together with the person for whose acts or omissions he is made answerable for. This was made clear by the Supreme Court in Cerezo vs. Tuazon, G.R. No. 141538, March 23, 2004. Pursuant to Article 2180 of the Civil Code that acknowledges responsibility under a relationship of patria potestas , a person may be held accountable not only for his own direct culpable act or negligence but also for those of others albeit predicated on his own supposed failure to exercise due care in his supervisory authority and functions (Vitug, Concurring Opinion, Valenzuela vs.

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Court of Appeals, G.R. No. 115024 & 117944, February 7, 1996). Vicarious liability of parents

9. The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company (Art. 2180, NCC). 10. This principle of parental liability is a species of what is frequently designated as vicarious liability, or the doctrine of “imputed negligence” under AngloAmerican tort law, where a person is not only liable for torts committed by himself, but also for torts committed by others with whom he has a certain relationship and for whom he is responsible. Thus, parental liability is made a natural or logical consequence of the duties and responsibilities of parents — their parental authority — which includes the instructing, controlling and disciplining of the child (Tamargo, et al. vs. Court of Appeals, G.R. No. 85044, June 3, 1992). 11. The civil liability imposed upon parents for the torts of their minor children living with them, may be seen to be based upon the parental authority vested by the Civil Code upon such parents. 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 presumed parental dereliction in the discharge of the duties accompanying such authority (Cangco v. Manila Railroad Co., 36 Phil. 768 [1918]). 12. The parents are and should be held primarily liable for the civil liability arising from criminal offenses committed by their minor children under their legal authority or control, or who live in their company, unless it is proven that the former acted with the diligence of a good father of a family to prevent such damages. That primary liability is premised on the provisions of Article 101 of the Revised Penal Code with respect to damages ex delicto caused by their children 9 years of age or un-


der, or over 9 but under 15 years of age who acted without discernment; and, with regard to their children over 9 but under 15 years of age who acted with discernment, or 15 years or over but under 21 years of age, such primary liability shall be imposed pursuant to Article 2180 of the Civil Code. Under said Article 2180, the enforcement of such liability shall be effected against the father and, in case of his death or incapacity, the mother. This was amplified by the Child and Youth Welfare Code which provides that the same shall devolve upon the father and, in case of his death or incapacity, upon the mother or, in case of her death or incapacity, upon the guardian, but the liability may also be voluntarily assumed by a relative or family friend of the youthful offender (Libi, et al. vs. Intermediate Appellate Court, G.R. No. 70890, September 18, 1992). 13. However, under the Family Code, this civil liability is now without such alternative qualification, the responsibility of the parents and those who exercise parental authority over the minor offender. For civil liability arising from quasi-delicts committed by minors, the same rules shall apply in accordance with Articles 2180 and 2182 of the Civil Code, as so modified. (Libi, et al. vs. Intermediate Appellate Court, supra). 14. Thus, “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] (Art. 221, Family Code of the Philippines). 15. After the effectivity of the Family Code, Republic Act 6809 was passed lowering the age of majority from twenty-one to eighteen. Thus, parental authority now ends when the child reaches the age of 18 instead of 21. But even if the age of majority has been lowered to eighteen, the vicarious liability of parents over children living in their company extends until these children reach the age of 21. This is the import of the provision of Republic Act 6809 which states that “[u]nless otherwise provided, majority commences at the age of eighteen

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years.’’ [But] nothing in this Code shall be construed to derogate from the duty or responsibility of parents and guardians for children and wards below twenty-one years of age mentioned in the second and third paragraphs of Article 2180 of the Civil Code. (RA 6809). 16. There had been some criticisms on this provision. It was argued that since the effect of emancipation is that parental authority ceases over them, to still make the parents vicariously liable when they no longer have authority over their emancipated children is without any legal mooring. Indeed, if one reviews the ruling of the Supreme Court in the past, the vicarious liability of parents is always anchored on the parental authority that they have over their unemancipated children. The only justification for the provision of RA 6809 retaining the vicarious responsibility of parents until the child concerned reaches the age of 21 lies in the requirement of the law that for the vicarious liability to arise, the child must “live in the company” of their parents. Under our custom, for as long as the child lives in the company of the parents, the latter can and still do supervise them. 17. In a case where the act complained of was committed by a minor child whose adoption is being processed with the Court, the question brought before the Supreme Court is who between the natural and the adopting parents may be held liable. The Court settled the issue by determining who has actual custody at the time of the act complained of. It said: “Under Article 35 of the Child and Youth Welfare Code, parental authority is provisionally vested in the adopting parents during the period of trial custody, i.e., before the issuance of a decree of adoption, precisely because the adopting parents are given actual custody of the child during such trial period. In the instant case, the trial custody period either had not yet begun or had already been completed at the time of the air rifle shooting; in any case, actual custody of Adelberto was then with his natural parents, not the adopting parents.” (Tamargo, et al. vs. Court of Appeals, et al., G.R. No. 85044, June 3, 1992).


18. Guardians are liable for damages caused by Vicarious the minors or incapacitated persons who are under their liability of authority and live in their company (Art. 2180). If the guardians minor or insane person causing damage has no parents or guardian, the minor or insane person shall be answerable with his own property in an action against him where a guardian ad litem shall be appointed (Art. 2182). 19. There are three kinds of guardians under the law: (a) the legal guardian, who is such by provision of law without need of judicial appointment, as in the case of parents over the persons of their minor children, or the father, or in his absence, the mother with respect to the property of the minor children not exceeding P2,000.00 in value (Art. 320, Civil Code, et seq.; see however, Art. 225 of the Family Code which supplanted said provisions and increased the amount involved; (b) the guardian ad litem , who may be any competent person appointed by the court for purposes of a particular action or proceeding involving a minor; and (c) the judicial guardian , who is a competent person appointed by the court over the person and/or property of the ward to represent the latter in all his civil acts, and transactions (Regalado, Remedial Law Compendium, Vol. II, page 118, 2004 ed.). 20. The owners and managers of an establish- Vicarious ment or enterprise are likewise responsible for damages liability of caused by their employees in the service of the branches employers in which the latter are employed or on the occasion of their functions (Art. 2180, NCC, par. 4.) Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry (Ibid., par. 5). 21. A distinction must be made between [pars. 4 and 5 of Article 2180] to determine what is applicable. Both provisions apply to employers: the fourth paragraph, to owners and managers of an establishment or enterprise; and the fifth paragraph, to employers in general, whether or not engaged in any business or industry. The fourth paragraph covers negligent acts of employees committed either in the service of the branches

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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 coverage 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 (Castilex Industrial Corp. vs. Vasquez, et al., G.R. No. 132266, December 21, 1999). 22. Our Supreme Court has applied the fourth paragraph to cases where the employer was engaged in a business or industry such as truck operators (Lanuzo v. Ping, 100 SCRA 205, 209-210 [1980]; Layugan v. Intermediate Appellate Court, 167 SCRA 363, 377 [1988]; and banks (Pacific Banking Corporation v. Court of Appeals, 173 SCRA 102, 117 [1989]; Go v. Intermediate Appellate Court, 197 SCRA 22, 31 [1991]). 23. Under the fifth paragraph of Article 2180, whether or not engaged in any business or industry, an employer is liable for the torts committed by employees within the scope of his assigned tasks. But it is necessary to establish the employer-employee relationship.1 Once this is done, the plaintiff must show, to hold the employer liable, that the employee was acting within the scope of his assigned task when the tort complained of was committed in order to make him liable (Martin v. Court of Appeals, 205 SCRA 591 [1992]; Metro Manila Transit

1

In determining the existence of an employer-employee relationship, the elements that are generally considered are the following: (a) the selection and engagement of the employee; (b) the payment of wages; (c) the power of dismissal; and (d) the employer’s power to control the employee with respect to the means and methods by which the work is to be accomplished. It is the so-called “control test” that is the most important element (Investment Planning Corp. of the Phils. vs. The Social Security System, 21 SCRA 924)


Corp. v. Court of Appeals, 223 SCRA 521, 539 [1993]. At this point, it is important to bear in mind that the rule is entirely different in culpa contractual cases. In breach of contract of carriage, Article 1759 of the Civil Code expressly makes the common carrier liable for intentional assaults committed by its employees upon its passengers. This Civil Code provision, together with the other provisions on common carriers, were taken from AngloAmerican Law (Report of the Code Commission, 64). There, the basis of the carrier’s liability for assaults on passengers committed by its drivers rest either on (1) the doctrine of respondent superior , or (2) the principle that it is the carrier’s implied duty to transport the passenger safely (53 ALR 2d 721-728; 732-734). Under the first, which is the minority view, the carrier is liable only when the act of the employee is within the scope of his authority and duty. It is not sufficient that the act be within the course of employment only. Under the second view, upheld by the majority and also by the later cases, it is enough that the assault happens within the course of the employee’s duty. It is no defense for the carrier that the act was done in excess of authority or in disobedience of the carrier’s orders (10 Am. Jur. 105-107; 263-265). The carrier’s liability here is absolute in the sense that it practically secures the passengers from assaults committed by its own employees (Dixie Motor Coach Corp. vs. Toler, 1997 Ark. 1097, 126 S.W., 2d, 618; Van Hoeffen vs. Columbia Taxicab Co., 179 Mo. App. 591, 162 S.W. 694; Brockway vs. Mordenti, 199 Misc. 898, 103 N.Y.S. 621; Korner vs. Cosgrove, 141 N.E. 265, 31 A.L.R. 1193).

As can be gleaned from Article 1759, the Civil Code of the Philippines evidently follows the rule based on the second view: (1) the special undertaking of the carrier requires that it furnish its passengers that full measure of protection afforded by the exercise of the high degree of care prescribed by the law, inter alia from violence and insults at the hands of strangers and other passengers, but above all, from the acts of the carrier’s own servants charged with the passenger’s safety; (2) said liability of the carrier from the servant’s violations

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of duty to passengers, is the result of the former’s confiding in the servant’s hands the performance of his contract to safely transport the passenger, with the utmost care prescribed by law; and (3) as between the carrier and the passenger, the former must bear the risk of wrongful acts or negligence of the carrier’s employees against passengers, since it, and not the passengers, has power to select and remove them ( Maranan vs. Perez, et al., G.R. No. L-22272, June 26, 1967 citing Texas Midland R.R. vs. Monroe 110 Tex 97, 216 S.W. 388, 380, 390; and Haver vs. Central Railroad Co., 43 L.R.A. 84, 85.) Thus, “it is clear from the above Civil Code provision that common carriers cannot escape liability for the death of or injuries to passengers through the negligence and willful acts of the former’s employees, although such employees may have acted beyond the scope of their authority or in violation of the orders . . .” (Marchan vs. Mendoza, et al., G.R. No. L-24471, August 30, 1968). 24. The rationale for the rule on vicarious liability in quasi-delict has been adumbrated thus: what has emerged as the modern justification for vicarious liability is a rule of policy, deliberate allocation of a risk. The losses caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the employer’s enterprise, are placed upon the enterprise itself, as a required cost of doing business. They are placed upon the employer because, having engaged in an enterprise, which will on the basis of all past experience involve harm to others through the tort of employees, and sought to profit by it, it is just that he, rather than the innocent injured plaintiff, should bear them; and because he is better able to absorb them, and to distribute them, through prices, rates or liability insurance, to the public, and so to shift them to society, to the community at large. Added to this is the makeweight argument that an employer who is held strictly liable is under the greatest incentive to be careful in the selection, instruction and supervision of his servants, and to take every precaution to see that the enterprise is conducted safely (Baliwag Transit vs. Court of Appeals, G.R. No. 116110, May 15, 1996).


25. In Campo vs. Camarote , the basis of the presumption of negligence was explained in this wise: The reason for the law is obvious. It is indeed difficult for any person injured by the carelessness of a driver to prove the negligence or lack of due diligence of the owner of the vehicle in the choice of the driver. Were we to require the injured party to prove the owner’s lack of diligence, the right will in many cases prove illusory, as seldom does a person in the community, especially in the cities, have the opportunity to observe the conduct of all possible car owners therein. So the law imposes the burden of proof of innocence on the vehicle owner. If the driver is negligent and causes damage, the law presumes that the owner was negligent and imposes upon him the burden of proving the contrary (MMTC vs. Court of Appeals, et al. G.R. No. 116617 & 126395, November 16, 1998). The responsibility 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. The liability is based on Spanish law which imposes upon all persons who by their fault or negligence, do injury to another, the obligation of making good the damage caused (cf., Cangco vs. Manila Railroad Co., supra). 26. Article 2180 provides for the solidary liability of an employer for the quasi-delict committed by an employee. The responsibility of employers for the negligence of their employees in the performance of their duties is primary and, therefore, the injured party may recover from the employers directly, regardless of the solvency of their employees (Victory Liner vs. Heirs of Malecdan, G.R. No. 154278, December 27, 2002). 27. Before an employer may be held liable for the negligence of his employee, the act or omission which caused damage must have occurred while an employee was in the actual performance of his assigned tasks or duties (Francis High School vs. Court of Appeals, 194 SCRA 341). 28. In defining an employer’s liability for the acts done within the scope of the employee’s assigned tasks, the Supreme Court has held that this includes any act

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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. An employer is expected to impose upon its employees the necessary discipline called for in the performance of any act indispensable to the business and beneficial to their employer (Filamer Christian Institute vs. Intermediate Ap pellate Court, 212 SCRA 637). 29. It has been held that an employee who uses his employer’s vehicle in going from his work to a place 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 findings that an employee is acting within the scope of his employment while so driving the vehicle. (Castilex vs. Vasquez, supra). 30. In the same vein, traveling to and from the place of work is ordinarily a personal problem or concern of the employee, 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 services available at the place where he is needed, the employee is not acting within the scope of his employment 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 (Ibid.). 31. 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 (Ibid.). 32. In Filamer Christian Institute vs. Court of Appeals, G.R. No. 75112, October 16, 1990, an issue was presented on whether the term “employer” as used in Article 2180 is applicable to Filamer with reference to Funtecha who was a working scholar. In disclaiming liability, Filamer has invoked the provisions of the Labor Code, 7 specifically Section 14, Rule X of Book III which reads: “Sec. 14. Working scholars. — There is no employer-employee 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.” Initially, the Supreme Court ruled that under the just-quoted provision of law, Filamer cannot be considered as Funtecha’s employer. Funtecha belongs to that special category of students who render service to the

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school in exchange for free tuition. Funtecha worked for Filamer for two hours daily for five days a week. He was assigned to clean the school passageways pass ageways from 4:00 a.m. 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. However, on motion for reconsideration (G.R. No. 75112, August 17, 1992), the Supreme Court reconsidered its decision and ruled that Funtecha being a working student (part-time Janitor) and a scholar of Filamer, he was, in relation to the school, an employee even if he was assigned to clean the school premises for only two (2) hours in the morning of each school day. day. 33. Ar 33. Artic ticle le 2180 2180,, in re relat latio ion n to Ar Art. t. 217 2176, 6, of of the the Civil Code provides that the employer of a negligent employee is liable for the damages caused by the latter. When an injury is caused by the negligence of an employee there instantly arises a presumption of the law that there was negligence on the part of the employee either in the selection of his employee or in the supervision over him after such selection. The presumption however may be rebutted by a clear showing on the part of the employer that it had exercised the care and diligence of a good father of a family in the selection and supervision of his employee. Hence, to escape solidary liability for quasi-delict committed by an employee, the employer must adduce sufficient proof that it exercised such degree of care (Baliwag Transit vs. Court of Appeals, et al., G.R. No. 116624, September 20, 1996). This provision of law is not founded on the principle of respondeat superior , but on bonus pater familias. Respondeat superior (Latin for “let the superior reply”) holds that an employer is liable for negligent acts or omissions of their employees that result in bodily harm or property damage to third parties if these acts are done in the course of the employment. “The theory of presumed negligence, in contrast with the American doctrine of respondeat superior , where the negligence of the employee is conclusively presumed to be the negligence of the employer, is clearly deducible from the last para-


graph of Article 2180 of the Civil Code which provides that the responsibility therein mentioned shall cease if the employers prove that they observed all the diligence of a good father of a family to prevent damages” (Poblete vs. Fabros, G.R. No. L-29803, September 14, 1979 also cited in Tiu vs. Arriesgado, et al., G.R. No. 138060, September 1, 2004). Under the civil law, an employer is liable for the negligence of his employees in the discharge of their respective duties, the basis of which liability is not respondeat superior , but the relationship of pater familias , which theory bases the liability of the master ultimately on his own negligence and not on that of his servant (Cuison v. v. Norton and Harrison Co., 55 Phil. 18). 1 8). Before an employer may be held liable for the negligence of his employee, the act or omission which caused damage must have occurred while an employee was in the actual performance of his assigned tasks or duties (Francis High School vs. Court of Appeals, 194 SCRA 341). In defining an employer’s liability for the acts done within the scope of the employee’s assigned tasks, the Supreme Court has held that this 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 (Filamer Christian Institute vs. Intermediate Appellate Court, 212 SCRA 637). Under the civil law on culpa aquiliana , an employer is liable for the negligence of his employees in the discharge of their respective duties, the basis of which liability is not respondeat superior , but the relationship of pater familias familias , which theory bases the liability of the master ultimately on his own negligence and not on that of his servant (Cuison v. Norton and Harrison Co., 55 Phil. 18). 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 (Cerf vs. Medel, G.R. No. 10351, December 24, 1915). 34. Th Thee lia liabi bilit lity y of of the the em empl ploy oyer er he here re wo would uld no nott be subsidiary but solidary with his driver (unless said

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employer can prove there was no negligence on his part at all, that is, if he can prove due diligence in the selection and supervision of his driver) (See 8th par. of Art. 2180, Art. 2194, Civil Civ il Code; also People vs. Navoa, 132 SCRA 412; People vs. Tirol, 102 SCRA 558; People vs. Sandaydiego, 82 SCRA 120). 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 (L.G. Foods Corporation and Victorino Gabor, VicePresident and General Manager, Petitioners, versus Hon. Philadelfa B. Pagapong-Agraviador, et al., G.R. No. 158995, September 26, 2006). 35. Th Thee resp respon onsib sibili ility ty tr treat eated ed of in thi thiss arti article cle shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage (Art. 2180, NCC, last par.). 36. Th 36. Thee “dil “dilig igen ence ce of a good good fa fath ther er”” ref refer erre red d to to in the last paragraph of the aforecited statute means diligence in the selection and supervision of employees. Thus, when an employee, while performing his duties, causes damage to persons or property due to his own negligence, there arises the juris tantum presumption that the employer is negligent, either in the selection of the employee or in the supervision over him after the selec79050 tion (Pantranco North Express, Inc. v. Baesa, G.R. Nos. 7905051, 14 November 1989, 179 SCRA 384). 37. Su 37. Supe pervi rvisio sion n incl includ udes es the the for formu mula latio tion n of su suit it-able rules and regulation for the guidance of its employees and the issuance of proper instructions intended for the protection of the public and persons with whom the employer has relations through his employees (Bahia v. Litonjua and Leynes, supra, at p. 628; Phoenix Construction, Inc. v. Intermediate Appellate Court, 148 SCRA 353 [1987]). An employer is expected to impose upon its employees the necessary discipline called for in the performance of any act indispensable to the business and beneficial to their employer (Filamer Christian Institute vs. IAC, et al., G.R. No. 75112, August 17, 1992).


38. Em Empl ploy oyer erss hav havee the the bu burd rden en of pr prov ovin ing g tha thatt they have indeed exercised such diligence, both in the selection of the employee and in the supervision of the performance of his duties. 39. In the 39. the sel selec ectio tion n of of pros prospe pect ctiv ivee empl employ oyee ees, s, employers are required to examine them as to their the ir qualifications, experience and service records. With respect to the supervision of employees, employers must formulate standard operating procedures, monitor their implementation and impose disciplinary measures for breaches thereof. thereof. These facts must be shown by concrete concrete (Victory ictory Liner Line r vs. proof, including documentary evidence (V Malecdan, supra). Case law teaches that for an employer to have exercised the diligence of a good father of a family, he should not be satisfied with the applicant’s mere possession of a professional driver’s license; he must also carefully examine the applicant for employment as to his qualifications, his experience and record of service. (Yambao vs. Zuniga, et al., G.R. No. 146173, December 11, 2003). 40. In a cas case, e, it was was ru rule led d tha thatt the the em empl ploy oyer er di did d not exercise due supervision after his selection when it was noted that the employer did not present any proof that she drafted and implemented training programs and guidelines on road safety for her employees. The record is bare of any showing that the employer required the employee (Venturina) to attend periodic seminars on road safety and traffic efficiency. Hence, the employer cannot claim exemption from any liability arising from the recklessness or negligence of Venturina (Ibid.). 41. Th Thee fail failur uree of of the the def defen enda dant nt co comp mpan any y to pr prooduce in court any ‘record’ or other documentary proof tending to establish that it had exercised all the diligence of a good father of a family in the selection and supervision of its drivers and buses, notwithstanding the calls therefor by both the trial court and the opposing counsel, argues strongly against its pretensions. The attempt to prove its “deligentissimi patris familias” in the selection and supervision of employees through oral evidence must fail as it was unable to buttress the same

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with any other evidence, object or documentary, which might obviate the apparent biased nature of the testimony (cf., Syki vs. Begasa, G.R. No. 149149, October 23, 2003 citing Metro Manila Transit Corporation vs. Court of Appeals, 223 SCRA 521 [1993]). 42. In the selection of prospective employees, employers are required to examine them as to their qualifications, experience, and service records. On the other hand, with respect to the supervision of employees, employers should formulate standard operating procedures, monitor their implementation, and impose disciplinary measures for breaches thereof. To establish these factors in a trial involving the issue of vicarious liability, employers must submit concrete proof, including documentary evidence (Metro Manila Transit Corporation vs. Court of Appeals, 298 SCRA 495 [1998]). 43. Based therefore on jurisprudential law, the employer must not merely present testimonial evidence to prove that he observed the diligence of a good father of a family in the selection and supervision of his employee, but he must also support such testimonial evidence with concrete or documentary evidence. The reason for this is to obviate the biased nature of the employer’s testimony or that of his witnesses (Syki vs. Begasa, supra, citing MMTC vs. CA, 298 SCRA 495). 44. In a case, the employer’s evidence consisted entirely of testimonial evidence. He testified that before he hired Elizalde Sablayan, he required him to submit a police clearance in order to determine if he was ever involved in any vehicular accident. He also required Sablayan to undergo a driving test conducted by his mechanic, Esteban Jaca. Employer claimed that he, in fact, accompanied Sablayan during the driving test and that during the test, Sablayan was taught to read and understand traffic signs like “Do Not Enter,” “One Way,” “Left Turn” and “Right Turn.” The alleged police clearance was not however presented nor the results of Sablayan’s driving test. The records of the regular inspections that mechanic allegedly conducted were not also produced. The Supreme Court ruled that unsub-


stantiated and self-serving testimonies were, without doubt, insufficient to overcome the legal presumption that there was negligence in the selection and supervision of the erring driver (Syki vs. Begasa, supra). 45. To fend off vicarious liability, employers must submit concrete proof, including documentary evidence, that they complied with everything that was incumbent on them (Perla Compania de Seguros vs. Sps. Sarangaya, G.R. No. 147746, October 25, 2005). 46. In an action based on quasi delict , the registered owner of a motor vehicle is solidarily liable for the injuries and damages caused by the negligence of the driver, in spite of the fact that the vehicle may have already been the subject of an unregistered Deed of Sale in favor of another person. Unless registered with the Land Transportation Office, the sale — while valid and binding between the parties — does not affect third parties, especially the victims of accidents involving the said transport equipment. Thus, in a case the registered owner was held liable for the acts of the driver employed by its former lessee who has become the owner of that vehicle by virtue of an unregistered Deed of Sale (Equitable Leasing Corporation vs. Suyom, et al., G.R. No. 143360, September 5, 2002). 47. But may the terms “employers” and “owners and managers of an establishment or enterprise” (dueños o directores de un establicimiento o empresa) used in Article 2180 of the Civil Code, formerly Article 1903 of the old Code, embrace the manager of a corporation owning a truck, the reckless operation of which allegedly resulted in the vehicular accident from which the damage arose? The Supreme Court held that those terms do not include the manager of a corporation. It may be gathered from the context of Article 2180 that the term “manager” (“director” in the Spanish version) is used in the sense of “employer”. Hence, under the allegations of the complaint, no tortious or quasi-delictual liability can be fastened on the manager of Phil-American Forwarders, Inc. in connection with the vehicular accident

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already mentioned because he himself may be regarded as an employee or dependiente of his employer, PhilAmerican Forwarders, Inc. (Phil Bus Rabbit vs. Phil-American Forwarders, 63 SCRA 232). Employer’s vicarious liability under Art. 2180 and employer’s subsidiary liability under Art. 100 of RPC distinguished

48. Under Article 2180 of the New Civil Code, employers are primarily liable for their negligence either in the selection or supervision of their employees. This liability is independent of the employee’s own liability for fault or negligence and is distinct from the subsidiary civil liability under Article 103 of the Revised Penal Code. The civil action against the employer may therefore proceed independently of the criminal action pursuant to Rule 111 Section 3 of the Rules of Court. 49. The vicarious liability of an employer for the fault or negligence of an employee is founded on at least two specific provisions of law. The first is expressed in Article 2176, in relation to Article 2180, of the Civil Code which would allow an action predicated on quasi-delict to be instituted by the injured party against the employer for an act or omission of the employee and would necessitate only a preponderance of evidence in order to prevail. Here, the liability of the employer for the negligent conduct of the subordinate is direct and primary subject to the defense of due diligence in the selection and supervision of the employee. The enforcement of the judgment against the employer for an action based on Article 2176 does not require the employee to be insolvent since the nature of the liability of the employer with that of the employee, the two being statutorily considered joint tortfeasors, is solidary. The second, predicated on Article 103 of the Revised Penal Code, provides that an employer may be held subsidiarily liable for a felony committed by his employee in the discharge of his duty. This liability attaches when the employee is convicted of a crime done in the performance of his work and is found to be insolvent that renders him unable to properly respond to the civil liability adjudged (Rafael Reyes Trucking Corporation vs. People et al., G.R. No. 129029, April 3, 2000). 50. In negligence cases, the aggrieved party may sue the negligent party under (1) Article 100 of the


Revised Penal Code, for civil liability ex delicto; or (2) under Article 2176 of the Civil Code, for civil liability ex quasi delicto. Under Article 103 of the Revised Penal Code, employers may be held subsidiarily liable for felonies committed by their employees in the discharge of the latter’s duties. This liability attaches when the employees who are convicted of crimes committed in the performance of their work are found to be insolvent and are thus unable to satisfy the civil liability adjudged. In order that an employer may be held subsidiarily liable for the employee’s civil liability in the criminal action, it need only be shown (1) that the employer, etc. is engaged in any kind of industry, (2) that the employee committed the offense in the discharge of his duties and (3) that he is insolvent (Basa Marketing Corp. v. Bolinao, 117 SCRA 156). The subsidiary liability of the employer arises after conviction of the employee in the criminal action. When all these requisites present, the employer becomes ipso facto subsidiarily liable upon the employee’s conviction and upon proof of the latter’s insolvency (Carpio vs. Doroja, et al., G.R. No. 84516, December 5, 1989). On the other hand, under Article 2176 in relation to Article 2180 of the Civil Code, an action predicated on quasi delict may be instituted against the employer for an employee’s act or omission. The liability for the negligent conduct of the subordinate is direct and primary, but is subject to the defense of due diligence in the selection and supervision of the employee. The enforcement of the judgment against the employer for an action based on Article 2176 does not require the employee to be insolvent, since the liability of the former is solidary — the latter being statutorily considered a joint tortfeasor. To sustain a claim based on quasi delict , the following requisites must be proven: (a) damage suffered by the plaintiff, (b) fault or negligence of the defendant, and (c) connection of cause and effect between the fault or negligence of the defendant and the damage incurred by the plaintiff. These two causes of action (ex delicto or ex quasi delicto) may be availed of, subject to the caveat that the offended party cannot “recover damages twice for

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the same act or omission” or under both causes. Since these two civil liabilities are distinct and independent of each other, the failure to recover in one will not necessarily preclude recovery in the other (Equitable Leasing Corp. vs. Suyom, et al., supra). 51. Distinction should thus be made between the subsidiary liability of the employer under the Revised Penal Code and the employer’s primary liability under the Civil Code which is quasi-delictual or tortious in character. The first type of liability is governed by Articles 102 and 103 of the Revised Penal Code while the second kind is governed by the provisions of the Civil Code. Under Article 103 of the Revised Penal Code, liability originates from a delict committed by the employee who is primarily liable therefor and upon whose primary liability his employer’s subsidiary liability is to be based. Before the employer’s subsidiary liability may be proceeded against, it is imperative that there should be a criminal action whereby the employee’s criminal negligence or delict and corresponding liability therefor are proved. If no criminal action was instituted, the employer’s liability would not be predicated under Article 103. The conviction of the employee primarily liable is a condition sine qua non for the employer’s subsidiary liability. There can be no automatic subsidiary liability of defendant employer under Article 103 of the Revised Penal Code where his employee has not been previously criminally convicted (Franco, et al. vs. Intermediate Appellate Court, et al., G.R. No. 71137, October 5, 1989). But upon his employee’s conviction, and subsequent proof of inability to pay, it is already a settled rule that the subsidiary liability of an employer automatically arises (cf., Alvarez vs. Court of Appeals, et al., G.R. No. L-59621, February 23, 1998). 52. As elsewhere mentioned, an employer’s liability based on a quasi-delict is primary and direct, while the employer’s liability based on a delict is merely subsidiary. “The words “primary and direct,” as contrasted with “subsidiary,” refer to the remedy provided by law for enforcing the obligation rather than to the character


and limits of the obligation. Although liability under Article 2180 originates from the negligent act of the employee, the aggrieved party may sue the employer directly. When an employee causes damage, the law presumes that the employer has himself committed an act of negligence in not preventing or avoiding the damage. This is the fault that the law condemns. While the employer is civilly liable in a subsidiary capacity for the employee’s criminal negligence, the employer is also civilly liable directly and separately for his own civil negligence in failing to exercise due diligence in selecting and supervising his employee. The idea that the employer’s liability is solely subsidiary is wrong”(Cerezo vs. Tuazon, G.R. No. 141538, March 23, 2004). 53. Prescinding therefrom, the driver is not an indispensable party in an action for damages against the employer. An indispensable party is one whose interest is affected by the court’s action in the litigation, and without whom no final resolution of the case is possible. However, since the employer’s liability in an action for a quasi-delict is not only solidary, it is also primary and direct, the driver is not an indispensable party to the final resolution of the action for damages against the employer. The responsibility of two or more persons who are liable for a quasi-delict is solidary. Where there is a solidary obligation on the part of debtors, as in this case, each debtor is liable for the entire obligation. Hence, each debtor is liable to pay for the entire obligation in full. There is no merger or renunciation of rights, but only mutual representation. Where the obligation of the parties is solidary, either of the parties is indispensable, and the other is not even a necessary party because complete relief is available from either (Ibid.). 54. Whoever pays for the damage caused by his dependents or employees may recover from the latter what he has paid or delivered in satisfaction of the claim (Art. 2181, NCC). In this sense, it may be said that the employer is held solidarily liable only for purposes of enforcement of liability by the aggrieved party. As between him and his employee, the employer is not really held legally liable because he can always recover what he has paid from the erring employee.

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Vicarious liability of owner of vehicle


55. But “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.” (Art. 2184, NCC) The provision of Art. 2181 may not be invoked by him because the said article covers only the cases mentioned in Art. 2180. 56. Every owner of a motor vehicle shall file with the proper government office a bond executed by a government-controlled corporation or office, to answer for damages to third persons. The amount of the bond and other terms shall be fixed by the competent public official (Article 2186, NCC). 57. The owner of an automobile, present in the vehicle, is not liable for the negligent acts of a competent driver unless such acts are continued for such a length of time as to give the owner a reasonable opportunity to observe them and to direct the driver to desist therefrom, and to fail to do so. If a competent driver of an automobile in which the owner thereof is at the time present, by a sudden act of negligence, without the owner having a reasonable opportunity to prevent the act or its continuance, violates the law, the owner of the automo bile 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 he, by acquiescence, makes his driver’s act his own (Chapman vs. Underwood, G.R. No. 9010, March 28, 1914). Also, an owner of a vehicle cannot be held liable for an accident involving the said vehicle if the same was driven without his consent or knowledge and by a person not employed by him (Duavit vs. Court of Appeals, et al., G.R. No. 82318, May 18, 1989).

Vicarious liability of State

58. The Government of the Philippine Islands is not liable in damages for the negligent acts of its regular officers or employees in the performance of their ordinary functions (see Lung Chea Kung Kee & Co vs. Aldanese, G.R. No. L-21362, March 6, 1924). The State is responsible only when it acts through a special agent (Art. 2180, 6th par.).


59. 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. (p. 961, Civil Code of the Philippines, 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 paragraph 6 of Art. 2180, the State has voluntarily assumed liability for acts done through special agents. The State’s agent, if a public 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-governmental 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. (Fontanilla, et al. vs. Maliaman, et al., G.R. No. 55963, December 1, 1989 citing Torts and Damages, Sangco, p. 347, 1984 Ed.). 60. A special agent “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.” (E. Meritt vs. Government of Philippine Island, G.R. No. 11154, March 21, 1916 citing Supreme Court of Spain, May 18, 1904; 98 Jur. Civ., 389, 390). 61. The Supreme Court of Spain in defining the scope of this paragraph said: “[t]hat the obligation to indemnify for damages which a third person causes another by his fault or negligence is based, as is evidenced

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by the same Law 3, Title 15, Partida 7, on that the person obligated, by his own fault or negligence, takes part in the act or omission of the third party who caused the damage. It follows therefrom that the State by virtue of such provision of law, is not responsible for the damages suffered by private individuals 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; on the contrary, we must presuppose all foresight humanly possible on its part in order that each branch of service serves the general weal and that of private persons interested in its operation. Between these latter and the state therefore, no relations of a private nature governed by the civil law can arise except in a case where the state acts as a judicial person capable of acquiring rights and contracting obligations.” (Supreme Court of Spain, January 7, 1898; 83 Jur. Civ., 24 cited in E. Meritt vs. Government of Philippine Islands, supra). 62. Article 2180 of the Civil Code establishes a rule of liability, not suability. The government may be held liable under this rule only if it first allows itself to be sued through any of the accepted forms of consent. Moreover, the agent performing his regular functions is not a special agent even if he is so denominated, as in the case at bar. No less important, the said provision appears to regulate only the relations of the local state with its inhabitants and, hence, applies only to the Philippine government and not to foreign governments impleaded in our courts (United States of America vs. Guinto, et al., G.R. No. 76607, February 26, 1990). Provinces, cities and municipalities

63. As for local government units, “provinces, cities and municipalities shall be 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’’ (Article 2189, NCC). 64. Article 2189 of the Civil Code constitutes a particular prescription making “provinces, cities and


municipalities . . . liable for damages for the death of, or injury suffered by, any person by reason” — specifically — “of the defective condition of roads, streets, bridges, public buildings, and other public works under their control or supervision.” (City of Manila vs. Teotico, G.R. No. L-23052, January 29, 1968). 65. While the charter of the local government unit concerned may lay down general rules regulating the liability of the city, Article 2189 applies in particular to the liability arising from “defective streets, public buildings and other public works.” (Guilatco vs. City of Dagupan, et al., G.R. No. 61516, March 21, 1989). 66. Under Article 2189 of the Civil Code, it is not necessary for the liability therein established to attach that the defective roads or streets belong to the province, city or municipality from which responsibility is exacted. What said article requires is that the province, city or municipality have either “control or supervision” over said street or road. Thus, even if the subject avenue were a national highway, this circumstance would not necessarily detract from its “control or supervision” by the subject local government unit (cf., City of Manila vs. Teotico, supra, also, Jimenez vs. City of Manila and Intermediate Appellate Court, G.R. No. 71049, March 29, 1987). 67. Moreover, “local government units and their officials are not exempt from liability for death or injury to persons or damage to property.” (Section 24, Local Government Code). 68. In San Fernando La Union vs. Firme, G.R. No. 52179, April 8, 1991, the Supreme Court held “[a]nent the issue of whether or not the municipality is liable for the torts committed by its employee, the test of liability of the municipality depends on whether or not the driver, acting in behalf of the municipality, is performing governmental or proprietary functions. As emphasized in the case of Torio v. Fontanilla (G.R. No. L-29993, Octo ber 23, 1978, 85 SCRA 599, 606), the distinction of powers becomes important for purposes of determining the liability of the municipality for the acts of its agents which result in an injury to third persons. It has already been

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remarked that municipal corporations 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 be held answerable only if it can be shown that they were acting in a proprietary capacity.” However, with the passage of the Local Government Code in 1992, two schools of thought emerged regarding Section 24. One holds on to the doctrine announced in San Fernando case, supra, that the municipality is answerable only when it is acting in proprietary capacity. The other postulates that local government units are liable for death or injury to persons or damage to property, without any qualification as none is found in the legal provision. Vicarious liability of teachers and heads of establishments of arts and trade

69. Teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices, so long as they remain in their custody (Art. 2180, NCC, 7th par.). 70. In the case of Exconde vs. Capuno, et al., G.R. No. L-10134, June 29, 1957 , the Supreme Court interpreted the provision to mean that “teachers or directors of arts and trades are liable for any damages caused by their pupils or apprentices while they are under their custody, but this provision only applies to an institution of arts and trades and not to any academic educational institution.” Also in Mercado vs. Court of Appeals, G.R. No. L-14342, May 30, 1960, it was said that Article 2180 of the new Civil Code contemplates a situation where the pupil lives and boards with the teacher, such that the control, direction and influence on the pupil supersede those of the parents. In these circumstances the control or influence over the conduct and actions of the pupil would pass from the father and mother to the teacher, and so would the responsibility for the torts of the pupil. 71. However, in Amadora vs. Court of Appeals, et al., G.R. No. L-47745, April 15, 1988, it was clarified that the provision in Article 2180 of the Civil Code should apply to all schools, academic as well as non-academic.


Where the school is academic rather than technical or vocational in nature, 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. This is 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. There is 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. Article 2180 of the Civil Code provides: “Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices so long as they remain in their custody.” Following the canon of reddendo singula singulis , “teachers should apply to the words “pupils and student’s and “heads of establishments of arts and trades” to the word “apprentices.” 72. 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

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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 contract 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. 73. 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 students, 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 students themselves may inflict willfully or through negligence on their fellow students. The basis of the presumption of negligence of Art. 1903 (now 2180) 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 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 (Palisoc, et al. vs. Brillantes, et al., G.R. No. L-29025, October 4, 1971). 74. The phrase used in the cited article — “so long as (the students) remain in their custody” means the protective and supervisory custody that the school and its head and teachers exercise over the pupils and students for as long as they are at attendance in the school, including recess time. 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 dicta in Mercado (as well as in Exconde) and which must now be deemed to have been set aside by the decision in Palisoc, et al. vs. Brillantes, et al. 75. To repeat Palisoc v. Brillantes , the student need not be boarding with the school authorities. This does not necessarily mean that such custody be co-terminous with the semester, beginning with the start of classes and ending upon the close 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 Supreme 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 and cannot consider himself released altogether from observance of its rules. As long then as it can be shown that the student is in the school premises in pursuance of a legitimate student objective,

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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 am bience 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 (Amadora vs. Court of Appeals, supra) 76. During all these occasions, it is obviously the teacher-in-charge who 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 teacher-in-charge is the one designated by the dean, principal, or other administrative superior to exercise supervision over the pupils in the specific classes or sections to which they are assigned. 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 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 (Ibid.). 77. 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. Thus, in the Palisoc case, liability attached to the teacher and the head of the technical school although the wrongdoer was already of age. In this sense, Article 2180 treats the parent more favorably than the teacher (Ibid.). 78. Likewise, “the phrase used in [Art. 2180 — ‘so long as (the students) remain in their custody’ means


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 at attendance in the school, including recess time. 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 (Salvosa, et al. vs. Intermediate Appellate Court, G.R. No. L-70458, October 5, 1988). 79. The liability imposed by this article is supposed to fall directly on the teacher or the head of the school of arts and trades and not on the school itself. If at all, the school, whatever its nature, may be held to answer for the acts of its teachers or even of the head thereof under the general principle of respondeat superior, but then it may exculpate itself from liability by proof that it had exercised the diligence of a bonus pater familias (Amadora vs. Court of Appeals, supra). 80. However, 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 individual, 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 responsi bility 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 (St. Mary’s Academy vs. Carpitanos, et al., G.R. No. 143363, February 6, 2002). 81. Those given the authority and responsibility under Article 218 of the Family Code, the school, its

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administrators and teachers shall be principally and solidarily liable for damages caused by the acts or omissions of the unemancipated minor. The parents, judicial guardians or the persons exercising substitute parental authority over said minor shall be subsidiarily liable. The respective liabilities shall not apply [only] if it is proved that they exercised the proper diligence required under the particular circumstances (cf., Article 219, Family Code). 82. In PSBA v. CA, (G.R. No. 84698, 4 February 1992) the Court held that Article 2180 of the Civil Code was not applicable where a student had been injured by one who was an outsider or by one over whom the school did not exercise any custody or control or supervision. 83. However, in Soliman, Jr. vs. Hon. Tuazon, G.R. No. 66207, May 18, 1992 , the Supreme Court emphasized that an implied contract may be held to be established between a school which accepts students for enrollment, on the one hand, and the students who are enrolled, on the other hand, which contract results in obligations for both parties: “When an academic institution accepts students for enrollment, there is established a contract between them, resulting in bilateral obligations which 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. Certainly, 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 thereof.”


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84. Also, the school may be held liable in its capacity as employer. Hence, 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 (University of the East vs. Jader, G.R. No. 132344, February 17, 2000). 85. The proprietor of a building or structure is Proprietor of responsible for the damages resulting from its total or building or partial collapse, if it should be due to the lack of neces- structure sary repairs. Proprietors shall also be responsible for damages 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; (3) By the falling of trees situated at or near highways or lanes, if not caused by force majeure; (4) By emanations from tubes, canals, sewers or deposits of infectious matter, constructed without precautions suitable to the place. If damage referred to in the two preceding articles should be the result of any defect in the construction mentioned in Article 1723, the third person suffering damages may proceed only against the engineer or architect or contractor in accordance with said article, within the period therein fixed. (Articles 2190-2192, NCC. See also De Roy, et al. vs. Court of Appeals, et al., G.R. No. L-80718, January 29, 1988).

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CHAPTER 4 DEFENSES IN AN ACTION FOR QUASI-DELICT Plaintiff’s own negligence

1. When the plaintiff’s own negligence was the immediate and proximate cause of his injury, he cannot recover damages (Art. 2179, NCC). 2. Thus, in a case where petitioner’s failure to examine his bank statements appears as the proximate cause of his own damage and the bank was not shown to be remiss in its duty of sending monthly bank statements to the depositor, the Supreme Court upheld the dismissal of the case. It noted that any error or discrepancy in the entries therein could be brought to the bank’s attention at the earliest opportunity. But, the depositor failed to examine these bank statements not because he was prevented by some cause in not doing so, but because he did not pay sufficient attention to the matter. Had he done so, he could have been alerted to any anomaly committed against him. In other words, the depositor had sufficient opportunity to prevent or detect any misappropriation by his secretary had he only reviewed the status of his accounts based on the bank statements sent to him regularly. In view of Article 2179 of the New Civil Code, when the plaintiff’s own negligence was the immediate and proximate cause of his injury, no recovery could be had for damages (Ilusorio vs. Court of Appeals, et al., G.R. No. 139130, November 27, 2002). 3. When the immediate cause of an accident resulting in an injury is the plaintiff’s own act, which contributed to the principal occurrence as one of its determining factors, he can not recover damages for the injury. 72

CHAPTER 4 DEFENSES IN AN ACTION FOR QUASI-DELICT

But alluding to the doctrine of implied invitations to visit the premises of another, it was said that “[i]n the case of young children, and other persons not fully sui juris , an implied license might sometimes arise when it would not on behalf of others. Thus leaving a tempting thing for children to play with exposed, where they would be likely to gather for that purpose, may be equivalent to an invitation to them to make use of it; and, perhaps if one were to throw away upon his premises, near the common way, things tempting to children, the same implication should arise.” (Taylor vs. Manila Electric Railroad and Light Company, G.R. No. 4977, March 22, 1910). 4. Chief Justice Cooley, voicing the opinion of the Supreme Court of Michigan, in the case of Powers vs. Marlow (53 Mich., 507), said that (p. 515): “Children, wherever they go, must be expected to act upon childlike instincts and impulses; and others who are chargeable with a duty of care and caution toward them must calculate upon this, and take precautions accordingly. If they leave exposed to the observation of children anything which would be tempting to them, and which they in their immature judgment might naturally suppose they were at liberty to handle or play with, they should expect that liberty to be taken.” 5. Children are actuated by childish instincts and impulses. Drawn by curiosity and impelled by the restless spirit of youth, boys here as well as there will usually be found wherever the public permitted to congregate. The movement of machinery, and indeed anything which arouses the attention of the young and inquiring mind, will draw them to the neighborhood as inevitably as does the magnet draw the iron which comes within the range of its magnetic influence. The owners of premises, therefore, whereon things attractive to children are exposed, or upon which the public are expressively or impliedly permitted to enter to or upon which the owner knows or ought to know children are likely to roam about for pastime and in play, “must calculate upon this, and take precautions accordingly.” In such cases the owner of the premises can not be heard to say that

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Theory of implied invitation to visit the premises of another

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because the child has entered upon his premises without his express permission he is a trespasser to whom the owner owes no duty or obligation whatever. The owner’s failure to take reasonable precautions to prevent the child from entering premises at a place where he knows or ought to know that children are accustomed to roam about or to which their childish instincts and impulses are likely to attract them is at least equivalent to an implied license to enter, and where the child does not enter under such conditions the owner’s failure to make reasonable precaution to guard the child against the injury from unknown or unseen dangers, placed upon such premises by the owner, is clearly a breach of duty, a negligent omission, for which he may and should be held responsible, if the child is actually injured, without other fault on its part than that it had entered on the premises of a stranger without his express invitation or permission. To hold otherwise would be expose to all the children in the community to unknown perils and unnecessary danger at the whim of the owners or occupants of land upon which they might naturally and reasonably be expected to enter. This conclusion is founded on reason, justice, and necessity, and neither the contention that a man has a right to do what he will with his own property of that children should be kept under the care of the parents or guardian, so as to prevent their entering on the premises of others is of sufficient weight to put it in doubt (Taylor vs. Manila Electric, supra). Doctrine of attractive nuisance

6. Also, one who maintains on his premises dangerous instrumentalities or appliances of a character likely to attract children in play, and who fails to exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable to a child of tender years who is injured thereby, even if the child is technically a trespasser in the premises. The attractive nuisance doctrine, however, is generally not applicable to bodies of water, artificial as well as natural, in the absence of some unusual condition or artificial feature other than the mere water and its location (Hidalgo Enterprises, Inc. vs. Balandan, et al., G.R. No. L-3422, June 13, 1952). 7. The doctrine of attractive nuisance has been based on various theories, such as the theory of implied


invitation, reasonable anticipation, or that the instrumentality or condition constitutes a trap of pitfall (65 CJS 812-813). 8. An excavation is an attractive nuisance. Where the children, driven by their playful and adventurous instincts and not knowing the risk they were facing, jumped into the hole while the other one jumped on the stone, the school teacher who allowed this to happen is guilty of negligence (see Ylarde, et al. vs. Aquino, et al., G.R. No. L-33722, July 29, 1988). 9. Also, under the principle of volenti non fit in- Assumption juria neques dolus , one who voluntarily assumes the risk of risk may not later on ask for damages (cf., Menchavez, et al. vs. Teves, Jr., G.R. No. 153201, January 26, 2005). 10. 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 precludes the recovery of damages by one who has knowingly and voluntarily exposed himself to danger, even if he is not negligent in doing so (Nikko Hotel Manila Garden, et al. vs. Reyes, G.R. No. 154259, February 28, 2005). 11. Thus, considering the nature of the task of emptying a septic tank especially one which has not been cleaned for years, an ordinarily prudent person should undoubtedly be aware of the attendant risks, more so with one who is an old hand in this kind of service, who is presumed to know the hazards of the job. His failure, therefore, and that of his men to take precautionary measures for their safety was the proximate cause of the accident. In Culion Ice, Fish and Elect. Co., v. Phil. Motors Corporation (55 Phil. 129, 133), it was held that 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 (Fernando, et al. vs. Court of Appeals, G.R. No. 92087, May 8, 1992). 12. Also, where the animal was in the custody and under the control of the caretaker, who was paid for

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his work as such, being injured by the animal under those circumstances was one of the risks of the occupation which he had voluntarily assumed and for which he must take the consequences. Obviously, it was the caretaker’s business to try to prevent the animal from causing injury or damage to anyone, including himself. In a decision of the Spanish Supreme Court, cited by Manresa in his Commentaries (Vol. 12, p. 578), the death of an employee who was bitten by a feline which his master had asked him to take to his establishment was by said tribunal declared to be “a veritable accident of labor” which should come under the labor laws rather than under Article 1905 of the Civil Code (Afialda vs. Hisole, et al., G.R. No. L-2075, November 29, 1949). 13. However, 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 [65A C.S.C. Negligence 174(5), p. 301], or when he seeks to rescue his endangered property (Harper and James, “The Law of Torts.” Little, Brown and Co., 1956, v. 2, p. 1167). Thus, where the deceased’s property, a source of livelihood, was faced with an impending loss and the deceased, at the time the fatal incident occurred, was at a place where she had a right to be as she was on her way to protect her merchandise, it was held that the heirs may not be barred from recovering damages as a result of the death caused by electric company’s negligence (Ibid., p. 1165, 1166) (Ilocos Norte Electric Company vs. Court of Appeals, et al., G.R. No. 53401, November 6, 1989). 14. Under common law, the application of the doctrine of assumption of risk has been held to include instances where plaintiff participated in a dangerous sport, or joined a crowd of spectators knowing that they were likely to become unruly, or submitted to beauty treatment shops (65A CJS 301). A person who is sui juris and participates in an athletic event, game or sport, accepts the dangers inherent in the activity as far as are obvious or necessary (Ibid., at 302).


Also, an employee does not assume the risk that his employer will be negligent in keeping the working premises safe (Rakes vs. Atlantic Gulf, supra) 15. Under the doctrine of last clear chance, a per- Doctrine of son who has the last clear chance or opportunity of avoid- last clear ing an accident, notwithstanding the negligent acts of chance his opponent or the negligence of a third person which is imputed to his opponent, is considered in law solely responsible for the consequences of the accident. (Ong vs. Metropolitan Water District, G.R. No. L-7664, August 29, 1958, citing 38 Am. Jur. pp. 900-902). Also known as the doctrine of discovered peril, humanitarian doctrine, doctrine of intervening negligence, the “known danger rule” or the “rule of Davies vs. Mann,1” the doctrine presupposes a perilous situation created or existing through the negligence of both parties, but assumes, and makes it a condition of the application of the doctrine, that there was a time after the negligence occurred when defendant could have, and the injured person could not have, averted the accident (cf., 65A CJS p. 122). The theory on which recovery is permitted notwithstanding the negligence of plaintiff in exposing himself to injury is that such negligence does not in a legal sense contribute to the injury since it is a remote cause (Ibid., at 128). 16. “It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent negligence in planting himself in the wrong side of the road. But where the defendant was also negligent, the problem always is to discover which agent is immediately and directly responsible. It will be noted that the negligent acts of the two parties were not contemporaneous, since the negligence of the defendant succeeded the negligence of the plaintiff by an appreciable interval. Under these circumstances, the law is that a person who has the last clear chance to avoid the impending 1

Referring to the case where the doctrine was first given expression in the United States.

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harm and fails to do so is chargeable with the consequences, without reference to the prior negligence of the other party.” (Picart vs. Smith, 37 Phil., 809). 17. The law is that the person who has the last fair chance to avoid the impending harm and fails to do so is chargeable with the consequences. Last clear chance is a doctrine in the law of torts which states that the contributory negligence of the party injured will not defeat the claim for damages if it is shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the negligence of the injured party. In such cases, the person who had the last clear chance to avoid the mishap is considered in law solely responsible for the consequences thereof (cf., McKee vs. Intermediate Appellate Court, G.R. No. 68102, July 16, 1992). 18. The doctrine of “last clear chance,” in essence, is to the effect 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 (see Picart vs. Smith, 37 Phil. 809). 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 (LBC Air Cargo et al. vs. Court of Appeals, et al., G.R. No. 101683, February 23, 1995 citing Pantranco North Ex press, Inc. vs. Baesa, 179 SCRA 384; Glan People’s Lumber and Hardware vs. Intermediate Appellate Court, 173 SCRA 464). 19. The doctrine of last clear chance applies only in a situation where the defendant, having the last fair chance to avoid the impending harm and failed to do so, becomes liable for all the consequences of the acci-


dent notwithstanding the prior negligence of the plaintiff. In order that the doctrine of last clear chance may be applied, it must be shown that the person who allegedly had the last opportunity to avert the accident was aware of the existence of the peril or with exercise of due care should have been aware of it. Thus, it has no application to a case where a person is to act instantaneously, and if the injury cannot be avoided by using all means available after the peril is or should have been discovered (Pantranco North Express, Inc. vs. Baesa, et al., G.R. No. 79050-51, November 14, 1989). 20. It also has no application in 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 (Consolidated Bank and Trust Corp. vs. Court of Appeals, et al., G.R. No. 138569, September 11, 2003). The common law notion of last clear chance permitted courts to grant recovery to a plaintiff who has 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 of 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 (Tiu, et al. vs. Arriesgado, et al., G.R. No. 138060, September 1, 2004). 21. Further, where the claim is founded under Article 2190 of the Civil Code, the doctrine of “last clear chance,” which has been applied to vehicular accidents, was held to be inapplicable to the case (De Roy, et al. vs. Court of Appeals, et al., supra). 22. Under the emergency rule, one who suddenly Emergency finds himself in a place of danger, and is required to act Rule without time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence, if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence (Gan vs. Court of Appeals, et al., G.R. No. L-44264, September 19, 1988).

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Thus, any reasonable and ordinary prudent man would have tried to avoid running over the two boys by swerving the car away from where they were even if this would mean entering the opposite lane. Avoiding such immediate peril would be the natural course to take particularly where the vehicle in the opposite lane would be several meters away and could very well slow down, move to the side of the road and give way to the oncoming car. (McKee vs. Intermediate Appellate Court, supra). 23. Courts have traditionally been compelled to recognize that an actor who is confronted with an emergency is not to be held up to the standard of conduct normally applied to an individual who is in no such situation. The law takes stock of impulses of humanity when placed in threatening or dangerous situations and does not require the same standard of thoughtful and reflective care from persons confronted by unusual and oftentimes threatening conditions. Under the “emergency rule” adopted by our Supreme Court in Gan vs. Court of Appeals, 165 SCRA 378 (1988) cf. Siegl vs. Watson, 195 NW 867, an individual who suddenly finds himself in a situation of danger and is required to act without much time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence if he fails to undertake what subsequently and upon reflection may appear to be a better solution, unless the emergency was brought by his own negligence. While the emergency rule applies to those cases in which reflective thought, or the opportunity to adequately weigh a threatening situation is absent, the conduct which is required of an individual in such cases is dictated not exclusively by the suddenness of the event which absolutely negates thoughtful care, but by the over-all nature of the circumstances. A woman driving a vehicle suddenly crippled by a flat tire on a rainy night will not be faulted for stopping at a point which is both convenient for her to do so and which is not a hazard to other motorists (Valenzuela vs. Court of Appeals, G.R. No. 115024 & 117944, February 7, 1996). 24. As above-stated, the emergency rule is not applicable where the danger one finds himself was


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caused by his own negligence (Delsan Transport Lines, Inc. vs. C & A Construction Inc., G.R. No. 156034, October 1, 2003). 25. An action for quasi-delict must be instituted Prescription within four years (Art. 1146, NCC). 26. The prescriptive period begins from the day the quasi-delict is committed. In Paulan vs. Sarabia , the Supreme Court ruled that in an action for damages arising from the collision of two (2) trucks, the action being based on a quasi-delict , the four (4) year prescriptive period must be counted from the day of the collision (Kramer vs. Court of Appeals, et al., G.R. No. 83524, October 13, 1989). 27. In an action for damages arising from the collision of two (2) vessels the four (4) year prescriptive period must be counted from the day of the collision. The aggrieved party need not wait for a determination by an administrative body like a Board of Marine Inquiry, that the collision was caused by the fault or negligence of the other party before he can file an action for damages (Kramer vs. Court of Appeals, supra ). 28. For persons held vicariously liable, the proper Diligence of defense is the exercise of diligence of a good father of good father the family (last par., Art. 2180, NCC and Art. 219, Family of family Code of the Philippines). In the case of employer held vicariously liable, the proper defense is the exercise of all the diligence of a good father of a family in the selection and supervision of his employees (Franco et al. vs. Intermediate Appellate Court, et al., G.R. No. 71137, October 5, 1989). But note that the defense of “exercise of due care in their selection and supervision . . . is not applicable to obligations arising ex contractu , but only to extra-contractual obligations — or to use the technical form of expression, [the defense] relates only to culpa aquiliana and not to culpa contractual” (Cangco vs. Manila Railroad Co., supra). 29. The diligence of a good father of a family requires only that diligence which an ordinary prudent man would exercise with regard to his own property (Wildvalley Shipping Company vs. Court of Appeals, et al.,

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G.R. No. 119602, October 6, 2000). Whether or not the diligence of a good father of a family has been observed by petitioner is a matter of proof (Metro Manila Transit Corporation vs. Court of Appeals, et al., G.R. No. 104408, June 21, 1993). The employer must adduce sufficient proof that it exercised such degree of care (Secosa vs. Francisco, G.R. No. 160039, June 29, 2004).

30. A master who exercises all possible care in the selection of his servant, taking into consideration the qualifications they should possess for the discharge of the duties which it is his purpose to confide to them, and directs them with equal diligence, thereby performs his duty to third persons to whom he is bound by no contractual ties, and he incurs no liability whatever if, by reason of the negligence of his servants, even within the scope of their employment, such third persons suffer damage (Cangco vs. Manila Railroad Co., supra). Partial defense: Doctrine of contributory negligence

31. The doctrine of contributory negligence may also be invoked, albeit only as a partial defense. “When the plaintiff’s own negligence was the immediate and proximate cause of his injury, he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the defendant’s lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded.” (Article 2179, NCC). 32. In American jurisprudence, any negligence, however slight, on the part of the person injured which is one of the causes proximately contributing to his in jury, bars his recovery. But in some civil law countries like France, the 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. 33. In the Philippines, the negligence of the in jured person contributing to his injury but not being one of the determining causes of the principal accident, does not operate as a bar to recovery, but only in reduction of his damages. Each party is chargeable with damages in proportion to his fault (Rakes vs. Atlantic, G.R. No.


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L-1719, January 23, 1907). The underlying precept of the above article 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 (Syki vs. Begasa, G.R. No. 149149, October 23, 2003).

34. Contributory negligence has been defined as Contributory “the act or omission amounting to want of ordinary care negligence on the part of the person injured which, concurring with distinguished the defendant’s negligence, is the proximate cause of from the the injury.” It has been held that “to hold a person as doctrine of last clear having contributed to his injuries, it must be shown that chance he performed an act that brought about his injuries in disregard of warnings or signs of an impending danger to health and body.” (Ma-ao Sugar Central Co. vs. Court of Appeals, G.R. No. 83491, August 27, 1990). But where both parties are guilty of negligence, but the negligent act of one succeeds that of the other by an appreciable interval of time, the one who has the last reasonable opportunity 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 [under the doctrine of last clear chance] (Picart vs. Smith, G.R. No. L-12219, March 15, 1918). This is the difference between the concepts of contributory negligence and doctrine of last clear chance. 35. There is a conclusive presumption that favors children below nine (9) years old in that they are incapable of contributory negligence. Citing Sangco , the Supreme Court ruled that “[i]n our jurisdiction, a person under nine years of age is conclusively presumed to have acted without discernment, and is, on that account, exempt from criminal liability. The same presumption and a like exemption from criminal liability obtains in a case of a person over nine and under fifteen years of age, unless it is shown that he has acted with discernment. Since negligence may be a felony and a quasi-delict and required discernment as a condition of liability, either criminal or civil, a child under nine years of age is, by

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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.” (Jarco Marketing Corp. vs. Court of Appeals, et al., G.R. No. 129792, December 21, 1999). 36. With the passage of Republic Act 9344, otherwise known as the Juvenile Justice and Welfare Act of 2006, the minimum age of criminal responsibility has been raised to fifteen. As provided in Section 6 thereof, “a child fifteen (15) years of age or under at the time of the commission of the offense shall be exempt from criminal liability. However, the child shall be subjected to an intervention program xxx. A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from criminal responsibility and be subjected to an intervention program, unless he/she has acted with discernment, in which case, such child shall be subjected to an appropriate proceedings.” But the law itself provides that “the exemption from criminal liability herein established does not include exemption from civil liability, which shall be enforced in accordance with existing laws.” Thus, it would seem that the provisions on quasi-delict are not affected by the passage of RA 9344. 37. In quasi-delicts , the contributory negligence of the plaintiff shall reduce the damages that he may recover (PCIB vs. Court of Appeals, et al., G.R. No. 121413, January 29, 2001). The determination 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 of Appeals; and 40% in Bank of the Philippine Islands v. Court of Appeals and Philippine Bank of Commerce v. Court of Appeals. Thus, in a case where one has imbibed one or two bottles of beer and was not wearing a protective helmet, the Supreme


Court ruled that the heirs of the deceased may recover damages only up to 50% of the award and 50% of the damage shall be borne by them (Lambert vs. Castillon, et al., G.R. No. 160709, February 23, 2005). 38. In criminal action for reckless imprudence, the alleged contributory negligence of the victim, if any, does not exonerate the accused. The defense of contributory negligence does not apply in criminal cases committed through reckless imprudence, since one cannot allege the negligence of another to evade the effects of his own negligence (Genobiagon vs. Court of Appeals, et al., G.R. No. 40452, October 12, 1989 citing People vs. Orbeta, CA-G.R. No. 321, March 29, 1947).

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CHAPTER 5 ENFORCEMENT OF LIABILITY

Available remedies

1. In cases of negligence, the injured party or his heirs has the choice between an action to enforce the civil liability arising from crime under Article 100 of the Revised Penal Code and an action for quasi-delict under Article 2176-2194 of the Civil Code. He may file either action, or both, albeit with the caveat against double recovery for the same act or omission. 2. An act or omission causing damage to another may give rise to two separate civil liabilities on the part of the offender, i.e., (1) civil liability ex delicto , under Article 100 of the Revised Penal Code; and (2) independent civil liabilities, such as those (a) not arising from an act or omission complained of as a felony, e.g., culpa contractual or obligations arising from law under Article 31 of the Civil Code, intentional torts under Articles 32 and 34, and culpa aquiliana under Article 2176 of the Civil Code; or (b) where the injured party is granted a right to file an action independent and distinct from the criminal action under Article 33 of the Civil Code. Either of these liabilities may be enforced against the offender sub ject to the caveat under Article 2177 of the Civil Code that the plaintiff cannot recover damages twice for the same act or omission of the defendant and the similar proscription against double recovery under the Rules above-quoted (Santos et al. vs. Pizardo, et al., G.R. No. 151452, July 29, 2005). 3. Section 2, Rule 2, of the 1997 Rules of Civil Procedure defines cause of action as the “act or omission by which a party violates the right of another.” Such act or omission gives rise to an obligation which may come from law, contracts, quasi contracts, delicts or quasi86


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delicts. Corollarily, an act or omission causing damage to another may give rise to two separate civil liabilities on the part of the offender, i.e., 1) civil liability ex delicto; and 2) independent civil liabilities, such as those (a) not arising from an act or omission complained of as felony (e.g., culpa contractual or obligations arising from law; the intentional torts; and culpa aquiliana; or (b) where the injured party is granted a right to file an action independent and distinct from the criminal action. Either of these two possible liabilities may be enforced against the offender (L.G. Foods Corporation vs. Hon. Philadelfa B. Pagapong-Agraviador, supra).

4. Because quasi-delict has substantivity all its own, the relevant question arises in cases where the aggrieved party files a criminal case under Title Fourteen of the Revised Penal Code1 and still wishes to institute a civil action for quasi-delict. Must the aggrieved party still reserve his right to institute the independent civil action of quasi-delict in the criminal case that he has instituted ahead? 5. The subject was first provided for by G.O. Rules governNo. 58, the first Rules of Criminal Procedure under the ing reservaAmerican rule. Sec. 107 of these Orders provided: The tion privileges now secured by law to the person claiming to be injured by the commission of an offense to take part in the prosecution of the offense and to recover damages for the injury sustained by reason of the same shall not be held to be abridged by the provisions of this order; but such person may appear and shall be heard either individually or by attorney at all stages of the case, and the court upon conviction of the accused may enter judgment against him for the damages occasioned his wrongful act. It shall, however, be the duty of the promotor fiscal to direct the prosecution, subject to the right of the person injured to appeal from any decision of the court denying him a legal right. This was superseded by the 1940 Rules of Court, Rule 106 of which provided: “SEC. 15. Intervention of the offended party in criminal action. — Unless the offended party has 1

Quasi-Offenses (Criminal Negligence).

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waived the civil action or expressly reserved the right to institute it after the termination of the criminal case, and subject to the provisions of Section 4 hereof, he may intervene, personally or by attorney, in the prosecution of the offense. This Rule was amended thrice, in 1964, in 1985 and lastly in 1988. (Maniago vs. Court of Appeals, G.R. No. 104392, February 20, 1996). 6. Before the revision of the Rules on Criminal Procedure in 1985, the rule has been that which is stated in Section 1 and 2 of Rule 111 of the Rules of Court that once a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense is impliedly instituted with the criminal action. However, for damages arising under Articles 31, 32, 33, 34 and 2177 of the Civil Code of the Philippines, an independent civil action entirely separate and distinct from the criminal action, may be brought by the injured party during the pendency of the criminal case, provided the right is reserved in the criminal action (Dumuk vs. Daquigan, et al., G.R. No. 47926, August 13, 1990). 7. As revised on January 1, 1985, however, Section 2, Rule III, eliminated not only the requirement that the right to institute such independent civil actions be reserved by the complainant, but more significantly, eliminated Articles 31 and 2177 of the Civil Code from its purview. This is so because the civil actions contemplated in Articles 31 and 2177 are not civil actions ex delicto. Moreover, said articles by themselves, authorize the institution of a civil action for damages based on quasi-delict which may proceed independently of the criminal proceeding for criminal negligence and regardless of the result of the latter (Bordas vs. Canadalla, et al., G.R. No. L-30036, April 15, 1988 citing Articles 31 and 2177, Civil Code; Corpus vs. Paje, 28 SCRA 1062). 8. Then in Maniago vs. Court of Appeals, et al., supra, the Supreme Court once more required reservation of the right to recover the civil liability, otherwise the action will be deemed to have been instituted with the criminal action. It held therein “that the requirement that before a separate civil action may be brought it must be reserved does not impair, diminish or defeat substantive rights, but only regulates their exercise in the gen-


eral interest of orderly procedure. The requirement is merely procedural in nature. For that matter Revised Penal Code, by providing in Art. 100 that any person criminally liable is also civilly liable, gives the offended party the right to bring a separate civil action, yet no one has ever questioned that rule that such action must be reserved before it may be brought separately. Indeed, the requirement that the right to institute actions under the Civil Code separately must be reserved is not incompatible with the independent character of such actions. There is a difference between allowing the trial of civil actions to proceed independently of the criminal prosecution and requiring that, before they may be instituted at all, a reservation to bring them separately must be made. Put in another way, it is the conduct of the trial of the civil action — not its institution through the filing of a complaint — which is allowed to proceed independently of the outcome of the criminal case. It added that there is a practical reason for requiring that the right to bring an independent civil action under the Civil Code separately must be reserved. It is to avoid the filing of more than one action for the same act or omission against the same party. Any award made against the employer, whether based on his subsidiary civil liability under Art. 103 of the Revised Penal Code or his primary liability under Art. 2180 of the Civil Code, is ultimately recoverable from the accused.” 9. This was reiterated in San Ildefonso Lines, Inc. et al. vs. Court of Appeals, et al., G.R. No. 119771, April 24, 1998, where the Supreme Court cited Section 3, Rule 111 of the Rules of Court which reads: “In the cases provided for in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action which has been reserved may be brought by the offended party, shall proceed independently of the criminal action and shall require only a preponderance of evidence,” and ruled that it is easily deducible from the present wording of Section 3 as brought about by the 1988 amendments to the Rules on Criminal Procedure — particularly the phrase . . . “which has been reserved” — that the “independent” character of these civil actions does not do away with the reservation requirement. In other words, prior reservation is a condition sine qua non be-

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fore any of these independent civil actions can be instituted and thereafter have a continuous determination apart from or simultaneous with the criminal action. 10. Then came the changes in the Revised Rules on Criminal Procedure pertaining to independent civil actions which became effective on December 1, 2000. Rule 111, Section 3 now reads: “In the cases provided in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action may be brought by the offended party. It shall proceed independently of the criminal action and shall require only a preponderance of evidence. In no case, however, may the offended party recover damages twice for the same act or omission charged in the criminal action.” Under the present rule, only the civil liability arising from the offense charged is deemed instituted with the criminal action unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action. 11. Expounding on the new provision, the Supreme Court held that there is no more need for a reservation of the right to file the independent civil actions under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines. The reservation and waiver referred to refers only to the civil action for the recovery of the civil liability arising from the offense charged. This does not include recovery of civil liability under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act or omission which may be prosecuted separately even without a reservation. (DMPI Employees Credit Cooperative vs. Hon. Velez, G.R. No. 129282, November 29, 2001). 12. But an independent civil action for the recovery of civil liability, authorized under Articles 32, 33, 34 or 2176 of the Civil Code, filed before the institution of the criminal case, may be consolidated with the latter, subject to the condition that no final judgment has been rendered in the criminal case. If this is permitted, there is neither rhyme nor reason why, given the existence of the condition, an independent civil action under any of the said Articles, but filed after the institution of the


criminal case, may not be consolidated with the latter. This second scenario is equally and logically addressed by the reasoning behind the provision for the first situation (Cojuangco, Jr. vs. Court of Appeals, et al., G.R. No. 37404, November 18, 1991). 13. Even when the criminal action for the same negligent act has already resulted in acquittal, the independent civil action for quasi-delict may still be maintained. “In the criminal case for reckless imprudence resulting in serious physical injuries . . ., the judgment of acquittal does not operate to extinguish the civil liability of the defendant based on the same incident. The civil action is entirely independent of the criminal case according to Articles 33 and 2177 of the Civil Code. There can be no logical conclusion than this, for to subordinate the civil action contemplated in the said articles to the result of the criminal prosecution — whether it be conviction or acquittal — would render meaningless the independent character of the civil action and the clear injunction in Article 31, that his action may proceed independently of the criminal proceedings and regardless of the result of the latter.” (Castillo vs. Court of Appeals, et al. G.R. No. 48541, August 21, 1989 citing Azucena v. Potenciano, L-14028, June 30, 1962, 5 SCRA 468). The only exception is when “the extinction proceeds from a declaration from a final judgment that the fact from which the civil action might arise did not exist.’’ 14. On the other hand, the negligent act may give rise to a complaint founded on both culpa aquiliana and culpa contractual. “As early as the case of Gutierrez vs. Gutierrez, (56 Phil. 177 [1931]) and thereafter, it has been consistently held that where the injury is due to the concurrent negligence of the drivers of the colliding vehicles, the drivers and owners of the said vehicles shall be primarily, directly and solidarily liable for damages and it is immaterial that one action is based on quasi-delict and the other on culpa contractual , as the solidarity of the obligation is justified by the very nature thereof. (Art. 1207, Civil Code) It should be borne in mind that the legal obligation of employers to observe due diligence in the selection and supervision of employees is not to be considered as an empty play of words or a mere for-

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malism, as appears to be the fashion of the times, since the non-observance thereof actually becomes the basis of their vicarious liability under Article 2180 (Metro Manila Transit Corporation vs. Court of Appeals, et al., G.R. No. 104408, June 21, 1993). Nature of liability

15. In these cases, the liability of the tortfeasors is solidary. “While the provisions of law do not expressly provide for solidary liability, the same can be inferred from the wordings of the first paragraph of Article 2180 which states that the obligation imposed by Article 2176 is demandable not only for one’s own acts or omissions, but also for those of persons for whom one is responsible. Moreover, Article 2180 should be read with Article 2194 of the same Code, which categorically states that the responsibility of two or more persons who are liable for quasi-delict is solidary. In other words, the liability of joint tortfeasors is solidary.” (Hernandez et al. vs. Dolor, et al., G.R. No. 160286, July 30, 2004). 16. The universal doctrine is that each joint tort feasor is not only individually liable for the tort in which he participates, but is also jointly liable with his tort feasors. It may be stated as a general rule that joint tort feasors are all the persons who command, instigate, promote, encourage, advise, countenance, cooperate in, aid or abet the commission of a tort, or who approve of it after it is done, if done for their benefit. They are each liable as principals, to the same extent and in the same manner as if they had performed the wrongful act themselves. Joint tort feasors are jointly and severally liable for the tort which they commit. The persons injured may sue all of them or any number less than all. Each is liable for the whole damages caused by all, and all together are jointly liable for the whole damage. It is no defense for one sued alone, that the others who participated in the wrongful act are not joined with him as defendants; nor is it any excuse for him that his participation in the tort was insignificant as compared to that of the others. Joint tort feasors are not liable pro rata. The damages can not be apportioned among them, except among themselves. They cannot insist upon an apportionment, for the purpose of each paying an aliquot part. They are


jointly and severally liable for the whole amount. A payment in full for the damage done, by one of the joint tort feasors, of course satisfies any claim which might exist against the others. There can be but one satisfaction. The release of one of the joint tort feasors by agreement generally operates to discharge all. Of course the court during trial may find that some of the alleged tort feasors are liable and that others are not liable. The courts may release some for lack of evidence while condemning others of the alleged tort feasors. And this is true even though they are charged jointly and severally (cf., Construction Development Corporation of the Philippines vs. Estrella, et al., G.R. No. 147791, September 8, 2006). 17. The insurer, however, is not to be held solidarily liable with the insured. In Malayan Insurance Co., Inc. vs. Court of Appeals, G.R. No. L-36413, September 26, 1988 , a case was filed against the insurance company and against the insured Pantranco, the latter being owner of the bus negligently driven by its employee. The Supreme Court reversed the finding of the trial court holding the insurance company solidarily liable with Pantranco. It held: “while it is true that where the insurance contract provides for indemnity against liability to third persons, such third persons can directly sue the insurer, however, the direct liability of the insurer under indemnity contracts against third party liability does not mean that the insurer can be held solidarily liable with the insured and/or the other parties found at fault. The liability of the insurer is based on contract; that of the insured is based on tort. In the context of a solidary obligation, insurer may be compelled to pay the entire obligation of P29,013.00, notwithstanding the qualification made by the trial court. But, how can the insurer be obliged to pay the entire obligation when the amount stated in its insurance policy for indemnity against third party liability is only P20,000.00?’’ 18. Actions for damages caused by the tortious conduct of the defendant survive the death of the latter (Melgar, et al. vs. Buenviaje, et al., G.R. No. 55750, November 8, 1989).

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CHAPTER 6 STRICT LIABILITY TORTS Definition and rationale

1. Until the 19th century, a person whose actions cause harm to another was in most situations held responsible for that harm simply because he acted. In other words, he was liable even without fault. However, over the years, it was generally perceived that the imposition of absolute liability for one’s acts without regard to fault is out of accord with the general principles of law. Thus, the concept of liability without fault, or strict liability torts (also referred to as strict liability in torts) is now generally limited to acts which, though lawful, are so fraught with possibility of harm to others that the law treats them as allowable only on the terms of insuring the public against injury (74 AmJur 2d, at 631-632). 2. The rule of strict liability is said to be applicable in situations in which social policy requires that defendant make good the harm which results to others from abnormal risks which are inherent in activities that are not considered blameworthy because they are reasonably incident to desirable industrial activity. The basis of liability in such cases is the intentional behavior in exposing the community to the abnormal risk (Ibid.). 3. Under the doctrine of strict liability in tort, the liability is “strict” in the sense that it is unnecessary to prove the defendant’s negligence (63 AmJur 2d, at p. 723). Known also as liability without fault, this branch of torts seeks to regulate those activities that are useful and necessary but that create abnormally dangerous risks to society.

Possessor of animals

4. For instance, “[t]he possessor of an animal or whoever may make use of the same is responsible for the 94

CHAPTER 6 STRICT LIABILITY TORTS

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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.” (Article 2183, NCC). This section, under certain conditions, renders either the owner of the animal or the one using it liable for damages (Johnson vs. David, G.R. No. 2789, February 27, 1906). 5. 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. And it does not matter either that the dog was tame and was merely provoked by the child into biting her. The law does not speak only of vicious animals but covers even tame ones as long as they cause injury. 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 (Vestil vs. Intermediate Appellate Court, et al., G.R. No. 74431, November 6, 1989). 6. Manufacturers and processors of foodstuffs, drinks, toilet articles and similar goods shall be liable for death or injuries caused by any noxious or harmful substances used, although no contractual relation exists between them and the consumers (Article 2187, NCC). 7. It has been said that the basis of products liability is the responsibility put upon one who sends goods outs into the channels of trade for use by others. Products liability would thus appear to cover any liability of a manufacturer or other seller of a product where personal injury or damage to some other property is caused by a defect in the product, albeit product liability is generally not considered to cover instances where the product does not measure up to buyer’s expectations, or on claims based merely on “bad bargains” (63 AmJur 2d at p. 34).

Manufacturers and processors of foodstuffs, etc.

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8. A manufacturer is strictly liable for torts when an article he places on the market, knowing that it is to be used without inspection for defect, proves to have a defect that causes injury to human being. This is also sometimes referred to as the “enterprise liability” (Ibid., at p. 722). 9. Although the doctrine has met with rapid and widespread acceptance, the doctrine relates only to defective and unreasonably dangerous products and does not make a manufacturer or seller an insurer that no injury will result from the use of his products nor does the doctrine mean that such a manufacturer or seller is liable for any harm to anybody under the circumstances (Ibid., at p. 734). 10. Under Republic Act 7394 or the Consumer Act of the Philippines, “any Filipino or foreign manufacturer, producer, and any importer, shall be liable for redress, independently of fault, for damages caused to consumers by defects resulting from design, manufacture, construction, assembly and erection, formulas and handling and making up, presentation or packing of their products, as well as for the insufficient or inadequate information on the use and hazards thereof’’ (Art. 97). 11. A product is defective when it does not offer the safety rightfully expected of it, taking relevant circumstances into consideration, including but not limited to: a) presentation of product; b) use and hazards reasonably expected of it; c) the time it was put into circulation. A product is not considered defective because another better quality product has been placed in the market (Ibid.). 12. The tradesman/seller is likewise liable, pursuant to the preceding article when: a) it is not possible to identify the manufacturer, builder, producer or importer; b) the product is supplied, without clear identification of the manufacturer, producer, builder or importer; c) he does not adequately preserve perishable goods. The party making payment to the damaged party may exercise the right to recover a part of the whole of the payment made against the other responsible parties, in


accordance with their part or responsibility in the cause of the damage effected (Art. 98). 13. The service supplier is liable for redress, independently of fault, for damages caused to consumers by defects relating to the rendering of the services, as well as for insufficient or inadequate information on the fruition and hazards thereof. The service is defective when it does not provide the safety the consumer may rightfully expect of it, taking the relevant circumstances into consideration, including but not limited to: a) the manner in which it is provided; b) the result of hazards which may reasonably be expected of it; c) the time when it was provided. A service is not considered defective because of the use or introduction of new techniques (Article 99). 14. The suppliers of durable or non-durable consumer products are jointly liable for imperfections in quality that render the products unfit or inadequate for consumption for which they are designed or decrease their value, and for those resulting from inconsistency with the information provided on the container, packaging, labels or publicity messages/advertisement, with due regard to the variations resulting from their nature, the consumer being able to demand replacement to the imperfect parts. If the imperfection is not corrected within thirty (30) days, the consumer may alternatively demand at his option: a) the replacement of the product by another of the same kind, in a perfect state of use; b) the immediate reimbursement of the amount paid, with monetary updating, without prejudice to any losses and damages; c) a proportionate price reduction. The parties may agree to reduce or increase the term specified in the immediately preceding paragraph; but such shall not be less than seven (7) nor more than one hundred and eighty (180) days. The consumer may make immediate use of the alternatives under the second paragraph of this Article when by virtue of the extent of the imperfection, the replacement of the imperfect parts may jeopardize the product quality or characteristics, thus decreasing its value. If the consumer opts for the alternative under

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sub-paragraph (a) of the second paragraph of this Article, and replacement of the product is not possible, it may be replaced by another of a different kind, mark or model: Provided, That any difference in price may result thereof shall be supplemented or reimbursed by the party which caused the damage, without prejudice to the provisions of the second, third and fourth paragraphs of this Article (Art. 100). 15. Suppliers are jointly liable for imperfections in the quantity of the product when, in due regard for variations inherent thereto, their net content is less than that indicated on the container, packaging, labeling or advertisement, the consumer having powers to demand, alternatively, at his own option: a) the proportionate price; b) the supplementing of weight or measure differential; c) the replacement of the product by another of the same kind, mark or model, without said imperfections; d) the immediate reimbursement of the amount paid, with monetary updating without prejudice to losses and damages, if any (Art. 101). 16. The service supplier is liable for any quality imperfections that render the services improper for consumption or decrease their value, and for those resulting from inconsistency with the information contained in the offer or advertisement, the consumer being entitled to demand alternatively at his option: a) the performance of the services, without any additional cost and when applicable; b) the immediate reimbursement of the amount paid, with monetary updating without prejudice to losses and damages, if any; c) a proportionate price reduction. Reperformance of services may be entrusted to duly qualified third parties, at the supplier’s risk and cost (Art. 102). 17. The druggist is responsible as an absolute guarantor of what he sells. In a decision which stands alone, the Supreme Court of Kentucky 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 cer-


tain 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.”(Fleet vs. Hollenkemp [1852], 56 Am. Dec., 563.) Under the other conception, in which proof of negligence is considered as material, 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. (See Knoefel vs. Atkins, supra) The druggist cannot, for example in filling a prescription calling for potassium chlorate give instead to the customer barium chlorate, a poison, place this poison in a package labeled “potassium chlorate,” and expect to escape responsibility on a plea of mistake. His mistake, under the most favorable aspect for himself, was negligence (United States vs. Pineda, G.R. No. L-12858, January 22, 1918). 18. The rule thus of caveat emptor cannot apply to the purchase and sale of drugs. The vendor and the vendee do not stand at arms 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 civil cases, the druggist is made liable for any injury

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approximately resulting from his negligence. If B negligently sells poison under the guise of a beneficial drug to A, he is liable for the injury done to A. In a case, which has repeatedly been followed by the United States Supreme Court, it was said, “Pharmacists or apothecaries who compound or sell medicines, if they carelessly label a poison as a harmless medicine, and send it so labeled into the market, are liable to all persons who, without fault on their part, are injured by using it as such medicine, in consequence of the false label; the rule being that the liability in such a case arises not out of any contract or direct privity between the wrong-doer and the person injured, but out of the duty which the law imposes on him to avoid acts in their nature dangerous to the lives of others.” (Nat. Savings Bank vs. Ward [1879], 100 U.S., 195, following Thomas vs. Winchester [1852], 2 Seld. [N.Y.] 397.) In view of the tremendous and imminent danger to the public from the careless sale of poisons and medicines, we do not deem it too rigid a rule to hold that the law penalizes any druggist who shall sell one drug for another whether it be through negligence or mistake (Ibid.). Head of the family

19. The head of a family that lives in a building or a part thereof, is responsible for damages caused by things thrown or falling from the same (Article 2193, NCC). 20. In US vs. Topino, 35 Phil. 901 (1916), the hus band was regarded as the head of the family. Even in the fairly recent case of People vs. Llamo, G.R. No. 132138, January 28, 2000, it was said that “[i]n this culture, the father is called “haligi ng tahanan,” the pillar of strength upon whom his children look to for moral guidance and material as well as emotional support. The father is the “padre de familia,” the head of the family who is morally and socially obligated to protect his family and to ensure their well-being.” 21. But under the Family Code, the management of the household is now the right and the duty of both spouses (Art. 71).


22. In the case of a family consisting of unmarried brothers or sisters, it seems that the head of the family is one on whom the family depends for lead support.1

The term “head of the family” has been defined by law for tax purposes to mean “an unmarried or legally separated man or woman with one or both parents, or with one or more brothers or sisters, or with one or more legitimate, recognized natural or legally adopted children living with and dependent upon him for their chief support, where such brothers or sisters or children are not more than twentyone (21) years of age, unmarried and not gainfully employed or where such children, brothers or sisters, regardless of age are incapable of self-support because of mental or physical defect .” (Section 35, RA 8424) 1

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CHAPTER 7 SPECIAL TORTS

Definition

1. The cases referred to in Art. 309 (par. 9, Art. 2219) and in Arts. 21, 26, 27, 28, 29, 30, 32, 34 and 35 on the chapter on human relations (par. 10, Art. 2219) of our Civil Code are otherwise referred to as special torts (Malonzo vs. Galang, et al., G.R. No. L-13851, July 27, 1960; Quezon City Government et al. vs. Dacara, G.R. No. 150304, June 15, 2005).

Abuse of Right Principle

2. In Article 19 of the Code, it is provided 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. The principle of abuse of rights stated in the above article, departs from the classical theory that “he who uses a right injures no one.” The modern tendency is to depart from the classical and traditional theory, and to grant indemnity for damages in cases where there is an abuse of rights, even when the act is not illicit. 3. Article 19 was intended 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. 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 liable. The absence of good faith is essential to abuse of right. Good faith is an honest intention to abstain from taking any unconscientious 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. In business relations, it means good faith as understood by men of 102


affairs. While Article 19 may have been intended as a mere declaration of principle, the “cardinal law on human conduct” expressed in said article has given rise to certain rules, e.g. that where a person exercises his rights but does so arbitrarily or unjustly or performs his duties in a manner that is not in keeping with honesty and good faith, he opens himself to liability (Sea Commercial Company vs. Court of Appeals, et al., G.R. No. 122823, November 25, 1999). 4. On the other hand, Article 21 is designed to Art. 21 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. As the Code Commission itself stated in its Report: “‘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 material and moral injury, the Commission has deemed it necessary, in the interest of justice, to incorporate in the proposed Civil Code the following rule: ‘ARTICLE 23. 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.’ ‘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 can not 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 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. Thus at one stroke, the legislator, if the foregoing rule is approved, would vouchsafe adequate legal remedy for that untold number of moral wrongs which it is impossible for human foresight to provide

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for specifically in the statutes.” (Report of the Code Commission, 39-40. This passage is quoted, except for the last paragraph, in Tanjanco vs. Court of Appeals, 18 SCRA 994, 996-997 [1966]; the Article 23 referred to is now Article 21.). 5. Hence, 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 (Baksh vs. Court of Appeals, et al., G.R. No. 97336, February 19, 1993). 6. Article 19 was intended 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 [PNB v. CA, 83 SCRA 237 (1978) cited in Sea Commercial Company v. CA, G.R. No. 122823, November 25, 1999]. 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 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. (Dean Roscoe Pound, Introduction to the Philosophy of Law cited in University of the East vs. Jader, supra). 7. The elements of an abuse of right under Article 19 are the following: (1) There is a legal right or duty; (2) which is exercised in bad faith; (3) for the sole intent of prejudicing or injuring another. Article 20 speaks of the general sanction for all other provisions of law which do not especially provide for their own sanction. Thus, anyone who, whether willfully or negligently, in the exercise of his legal right or duty, causes damage to another, shall indemnify his victim for injuries suffered thereby. 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. Thus, under any of these three (3) provisions of law, an act which causes injury to another may be made the basis for an award of damages (Albenson Enterprises Corp. et al. vs. Court of Appeals, et al., G.R. No. 88694, January 11, 1993). 8. The test of Abuse of Right has been explained in I Tolentino, pp. 61-62 in this wise “[m]odern jurisprudence does not permit acts which, although not unlawful, are anti-social. There is undoubtedly an abuse of right when it is exercised for the only purpose of prejudicing or injuring another. When the objective of the actor is illegitimate, the illicit act cannot be concealed under the guise of exercising a right. The principle does not permit acts which, without utility or legitimate purpose cause damage to another, because they violate the concept of social solidarity which considers law as rational and just. Hence, every abnormal exercise of a right, contrary to its socio-economic purpose, is an abuse that will give rise to liability. The exercise of a right must be in accordance with the purpose for which it was established, and must not be excessive or unduly harsh; there must be no intention to injure another. Ultimately, however, and in practice, courts, in the sound exercise of their discretion, will have to determine all the facts and circumstances when the exercise of a right is unjust, or when there has been an abuse of right.” 9. Malice or bad faith is at the core of Article 19. Good faith is presumed and he who alleges bad faith has the duty to prove the same. Good faith refers to the state of the mind which is manifested by the acts of the individual concerned. It consists of the intention to abstain from taking an unconscionable and unscrupulous advantage of another. Bad faith does not simply connote bad judgment or simple negligence, dishonest purpose or some moral obliquity and conscious doing of a wrong, a breach of known duty due to some motives or interest or ill-will that partakes of the nature of fraud. Malice connotes ill-will or spite and speaks not in response to duty. It implies an intention to do ulterior and unjustifiable harm. Malice is bad faith or bad motive (DBP vs. Court of Appeals, et al., G.R. No. 137916, December 8, 2004).

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10. Thus, where an educational institution was sued for allegedly misleading a student into believing that the latter had satisfied all the requirements for graduation when such is not the case, the Supreme Court found that in belatedly informing the student of the result of the removal examination, particularly at a time when he had already commenced preparing for the bar exams the school may have acted in bad faith making the suit for abuse of right under Article 19 of the Civil Code proper. 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 indifference 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 (University of the East vs. Jader, supra). 11. A public utility effecting disconnection of service to a delinquent customer without prior written notice was held to have committed tort under Article 21 of the Civil Code. Said the Court: “. . . petitioner’s act in disconnecting respondent Ongsip’s gas service without prior notice constitutes breach of contract amounting to an independent tort. The prematurity of the action is indicative of an intent to cause additional mental and moral suffering to private respondent. This is a clear violation of Article 21 of the Civil Code which provides that 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 damages. “ (Manila Electric Company vs. Court of Appeals, et al., G.R. No. L-39019, January 22, 1988) Emotional distress tort action

12. In one case, our Supreme Court recognized a common law tort referred to as “emotional distress.” According to the Supreme Court in MVRS Publications, et al vs. Islamic Da’wah Council of the Phil, et al., G.R. No. 135306, January 28, 2003 , an “emotional distress” tort action is personal in nature, i.e. , it is a civil action filed by an individual to assuage the injuries to his emotional tranquility due to personal attacks on his character. Under the Second Restatement of the Law, to recover for the intentional infliction of emotional distress the plain-


tiff must show that: (a) The conduct of the defendant was intentional or in reckless disregard of the plaintiff; (b) The conduct was extreme and outrageous; (c) There was a causal connection between the defendant’s conduct and the plaintiff’s mental distress; and, (d) The plaintiff’s mental distress was extreme and severe. Also, “extreme and outrageous conduct,” as a cause of action, was defined as a conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in civilized society. The defendant’s actions must have been so terrifying as naturally to humiliate, embarrass or frighten the plaintiff. 13. “Emotional distress” means any highly unpleasant mental reaction such as extreme grief, shame, humiliation, embarrassment, anger, disappointment, worry, nausea, mental suffering and anguish, shock, fright, horror, and chagrin. “Severe emotional distress,” in some jurisdictions, refers to any type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so, including posttraumatic stress disorder, neurosis, psychosis, chronic depression, or phobia. The plaintiff is required to show, among other things, that he or she has suffered emotional distress so severe that no reasonable person could be expected to endure it; severity of the distress is an element of the cause of action, not simply a matter of damages. Any party seeking recovery for mental anguish must prove more than mere worry, anxiety, vexation, embarrassment, or anger. Liability does not arise from mere insults, indignities, threats, annoyances, petty expressions, or other trivialities. In determining whether the tort of outrage had been committed, a plaintiff is necessarily expected and required to be hardened to a certain amount of criticism, rough language, and to occasional acts and words that are definitely inconsiderate and unkind; the mere fact that the actor knows that the other will regard the conduct as insulting, or will have his feelings hurt, is not enough (Id.).

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Art. 26


14. The Code Commission explained the inclusion of Article 26 in the Civil Code in this wise: “The present laws, criminal or civil, do not adequately cope with interferences and vexations mentioned in Article 26. The privacy of one’s home is an inviolable right. Yet the laws in force do not squarely and effectively protect this right. The acts referred to in No. 2 are multifarious, and yet many of them are not within the purview of the law in force. Alienation of the affection of another’s wife or husband, unless it constituted adultery or concubinage, is not condemned by the law, much as it may shock society. There are numerous acts, short of criminal unfaithfulness, whereby the husband or the wife breaks the marital vows, thus causing untold moral suffering to the other spouse. Why should not these acts be the subject matter of a civil action for damages? In American law, they are. Again, there is meddling of so-called friends who poison the mind of one or more members of the family against the other members. In this manner many a happy family is broken up or estranged. Why should not the law try to stop this by creating a civil action for damages? Of the same nature is that class of acts specified in No. 3: intriguing to cause another to be alienated from his friends. No less serious are the acts mentioned in No. 4: vexing, or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect or other personal condition. The penal laws against defamation and unjust vexation are glaringly inadequate. Religious freedom does not authorize anyone to heap obloquy and disrepute upon another by reason of the latter’s religion. Not a few of the rich people treat the poor with contempt because of the latter’s lowly station in life. To a certain extent this is inevitable, from the nature of the social make-up, but there ought to be a limit somewhere, even when the penal laws against defamation and unjust vexation are not transgressed. In a democracy, such a limit must be established. The courts will recognize it in each case. Social equality is not sought by the legal provision under consideration, but due regard for decency and propriety. Place of birth, of physical defect and other personal conditions are too often the pretext of humiliation cast upon other persons. Such tampering with human


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personality, even though the penal laws are not violated, should be the cause of civil action (See Dissenting Opinion of Justice Carpio in MVRS Publications, et al vs. Islamic Da’wah Council of the Phil, et al., supra). 15. Note, however, that under Section 34 of Republic Act 9262, otherwise known as the “Anti-Violence Against Women and Their Children Act of 2004,’’ any person, private individual or police authority or barangay official who, acting in accordance with law, responds or intervenes without using violence or restraint greater than necessary to ensure the safety of the victim, shall not be liable for any criminal, civil or administrative liability resulting therefrom. Likewise, in Section 43 of its Implementing Rules and Regulations, “workers of NGOs, POs, church, civic and other groups, be they Filipino citizens or foreigners, fall under ‘any person’, are free from any criminal or civil liability when acting in accordance with law in responding to a call for help or when assisting the victimsurvivor.’’ 16. Article 1314 of the Civil Code provides that Interference any third person who induces another to violate his con- with contractract shall be liable for damages to the other contracting tual relations party. The tort recognized in that provision is known as interference with contractual relations. The interference is penalized because it violates the property rights of a party in a contract to reap the benefits that should result therefrom (Lagon vs. Court of Appeals, et al., G.R. No. 119107, March 18, 2005). 17. In the case of So Ping Bun v. Court of Appeals, 373 Phil. 532 (1999), the elements of tortuous interference with contractual relations were enumerated, viz, (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. Knowledge of the contract is important because a defendant in such a case cannot be made liable for interfering with a contract he is unaware of.

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CHAPTER 8 KINDRED TORTS

Medical malpractice/ Medical negligence

1. Another brand of tort that is gaining recognition in this jurisdiction is medical malpractice. “This is a particular form of negligence which consists in the failure of a physician or surgeon to apply to his practice of medicine that degree of care and skill which is ordinarily employed by the profession generally, under similar conditions, and in like surrounding circumstances.” (Reyes, et al. vs. Sisters of Mercy Hospital, et al., G.R. No. 130547, October 3, 2000). Negligence being the backbone of the suit, this type of litigation is invariably considered part of tort law. 2. The relationship between physician and patient is a consensual one wherein the patient knowingly seeks the assistance of a physician and the physician knowingly accepts him as patient. The relationship between a physician and patient may result from an express or implied contract, either general or special, and the rights and liabilities of the parties thereto are governed by the general law of contract. The voluntary acceptance of the physician patient relationship by the affected parties creates a prima facie presumption of contractual relationship between them. The relationship is not dependent upon payment of fees, for a physician may accept a patient and thereby incur the consequent duties although his services are performed gratuitously. However, the generally accepted rule is that where a job applicant or employee is examined by a doctor engaged by the prospective or actual employer, there is no doctor-patient relationship between the physician and the examinee (cf., 61 Am Jur 2d, pp. 290-292). Where a physician- patient relationship is present, physicians have a 110


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. 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. In the event that any injury results to the patient from want of due care or skill during the operation, the surgeons may be held answerable in damages for negligence (Garcia-Rueda vs. Pascasio, supra, citing Hoover v. Williamson, 236 Md 250 and Gore v. Board of Medical Quality, 110 Cal App 3d 184 (1980). 3. It is a universal rule that a physician or surgeon has the duty to use reasonable care and skill in diagnosis and treatment. The standard by which the requirement of reasonable skill and care is determined is the average standard of the profession (61 Am Jur 2d, at 339). In particular, a doctor has the duty to inform the patient fully of his condition, and of the results of the tests made. If the physician discovers, or should know or discover, that the patient’s ailment is beyond his knowledge or technical skill, ability or capacity to treat with a likelihood of reasonable success, he is also under duty to disclose that fact to the patient and advise him of the necessity of other or different treatment. It has also been recognized that there exists a duty on the part of the physician to advise his patient to consult a specialist or one qualified in a method of treatment which the physician is not qualified to give. It is also the settled rule that one who engages a physician to treat his case impliedly engages him to attend throughout the illness, or until his services are dispensed with, but it is recognized that a physician has the right to withdraw from a case by giving due notice to the patient and affording him the ample opportunity to secure other medical attendance of his own choice. As corollary to the physician’s right to withdraw from a case upon giving proper notice, he is also under duty not to abandon the patient and to continue attendance until all the conditions for his rightful withdrawal are complied with (cf., 65 Am Jur 2d, pp. 358 to 368).

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4. As a general rule, “[d]octors are protected by a special rule of law. They are not guarantors of care. They do not even warrant a good result. They are not insurers against mishaps or unusual consequences. Furthermore they are not liable for honest mistakes of judgment. . . .” (Cruz vs. Court of Appeals, et al., G.R. No. 122445, November 18, 1997, citing “THE PHYSICIAN’S LIABILITY AND THE LAW ON NEGLIGENCE” by Constantino Nuñez, p. 1 citing Louis Nizer, My Life in Court, New York: Double Day & Co., 1961 in Tolentino, Jr., MEDICINE and LAW, Proceedings of the Symposium on Current Issues Common to Medicine and Law U.P. Law Center, 1980). But in accepting a case, a doctor in effect represents that, having the needed training and skill possessed by physicians and surgeons practicing in the same field, he will employ such training, care and skill in the treatment of his patients. He therefore has a duty to use at least the same level of care that any other reasonably competent doctor would use to treat a condition under the same circumstances. It is in this aspect of medical malpractice that expert testimony is essential to establish not only the standard of care of the profession but also that the physician’s conduct in the treatment and care falls below such standard. Further, inasmuch as the causes of the injuries involved in malpractice actions are determinable only in the light of scientific knowledge, it has been recognized that expert testimony is usually necessary to support the conclusion as to causation (Id., citing MEDICINE and LAW, supra , p. 25; Willard vs. Hutson, 1 ALR 3d 1092, 1102 [1963]; Snyder vs. Pantaleo, 122 A. 2d 21, 23 [1956] and American Jurisprudence 2d, Vol. 61, p. 510). Elements of medical negligence

5. In order to successfully pursue such a claim, a patient must prove that a health care provider, in most cases a physician, either failed to do something which a reasonably prudent health care provider would have done, or that he or she did something that a reasonably prudent provider would not have done; and that failure or action caused injury to the patient. Hence, there are four elements involved in medical negligence cases: duty,


breach, injury and proximate causation. (Garcia- Rueda vs. Pascasio, et al., G.R. No. 118141, September 5, 1997 citing Hirschberg v. State, 91 Misc 2d 590 (1977). Here, claims under medical malpractice are most often brought as a civil action for damages under Article 2176 of the Civil Code, and in some instances, as a criminal case under Article 365 of the Revised Penal Code with which the civil action for damages is impliedly instituted (Cruz vs. Court of Appeals, et al., supra). 6. In the absence of a special contract, a physician or surgeon is not required to exercise extraordinary skill and care or the highest degree of skill and care possible; but as general rule, he is only required to possess and exercise the degree of skill and learning ordinarily possessed and exercised under similar circumstances by the members of his profession in good standing, and to use ordinary and reasonable care and diligence, and his best judgment, in the application of his skill to the case (70 CJS 946). But a physician holding himself out as having special knowledge and skill in the treatment of a particular organ, disease or type of injury is bound to bring to the discharge of his duty to a patient employing him as such specialist, not merely the average degree of skill possessed by general practitioners, but that special degree of skill and knowledge possessed by physicians who devote special study and attention to the treatment of such organ, disease or injury, regard being had of the state of scientific knowledge at the time (Id., at 949). 7. In determining the degree of learning and skill required of a physician or surgeon in his treatment of a particular case, the following factors are usually considered, to wit, the state of medical or surgical science at the time, the locality in which the physician practices, the general rules and principles of the particular school of medicine which he follows, and the nature of the case and the condition of the patient. But the fact that a physician or surgeon renders his services gratuitously does not absolve him from the duty to use reasonable and ordinary care, skill and diligence (cf., id. at pages 950-

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954). Also, an offer to perform a second operation to remedy the effect of an unskillful or carelessly performed former operation or treatment is no defense to an action for malpractice in the first operation or treatment and although the principle of volenti non fit injuria has been invoked to prevent a recovery, consent of the patient to an operation does not ordinarily relieve defendant from liability (cf., Ibid., at p. 982). Also, regard is had to “the state of medical or surgical science at the time. The locality in which a physician practices is likewise important in determining the degree of skill and care required of him, and the rule is frequently stated that a physician or surgeon is required, or is only required, to exercise the same degree of care and skill exercised by physicians and surgeons in good standing engaged in the same general line of practice in the same locality or neighborhood” (Id., at p. 950). This is otherwise referred to as the “locality rule.” In the United States, this rule has been criticized as having protected low standard of care practiced in the community and is seen as a disincentive for improved patient care and services. Thus, some courts also considered not only the prevailing practice in a particular locality but the national standards as established by medical specialty organizations. 8. Some acts or omissions constituting negligence or malpractice are: (a) wrong diagnosis, when such results from want of requisite skill or care; (b) unwarranted abandonment of a case after its assumption, at least where he does not give reasonable notice or provide a competent physician in his place; (c) operating without patient’s consent where a patient is in possession of his faculties and in such physical health as to be able to consult about his condition, and no emergency exists in making it impracticable to confer with him, or without the consent of the parents, spouse or guardian, in the absence of an emergency; (d) failing to give the patient or his family or attendants all necessary and proper instructions as to the care and attention to be given to the patient and the cautions to be observed; (e) allowing a foreign substance to enter or remain in the


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body of the person operated on, and this extends to the sponges and pads; (f) failing to give warning when attending to a patient afflicted with contagious or infectious disease, (g) writing an erroneous prescription; or (h) issuing wrongful certificate of insanity or inebriety (Id., at pages 960-972). 9. Under the “error in judgment rule,” “a phy- Error in sician is not liable for error in his judgment when he judgment rule applies ordinary and reasonable skill and care, or his best judgment, or keeps within recognized and approved methods or common practice, or if he forms his judgment after a careful or proper examination or investigation” (Id., at 963). 10. In litigations involving medical negligence, the plaintiff has the burden of establishing negligence and for a reasonable conclusion of negligence, there must be proof of breach of duty on the part of the surgeon as well as a causal connection of such breach and the resulting death of his patient. In Chan Lugay v. St. Luke’s Hospital, Inc., (10 CA Reports 415 [1966]) where the attending physician was absolved of liability for the death of the complainant’s wife and newborn baby, the Supreme Court held that: “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.’” 11. As a rule, there is necessity of expert testi- Evidential mony. “Inasmuch as the causes of the injuries involved rules in malpractice actions are determinable only in the light of scientific knowledge, it has been recognized that ex-

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pert testimony is usually necessary to support the conclusion as to causation.” (Reyes vs. Sisters of Mercy, supra) Essentially, it requires two-pronged evidence: evidence as to the recognized standards of the medical community in the particular kind of case, and a showing that the physician in question negligently departed from this standard in his treatment [Garcia-Rueda vs. Pascasio, su pra, citing 61 Am Jur 2nd (1972) and Davis v. Virginian R. Co, 361 US 354]. However, 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, “obvious errors” may nonetheless bring about the application of the doctrine of res ipsa loquitur. In such case, 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 surgeons, external appearances, and manifest conditions 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 determine 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” (Ramos vs. Court of Appeals, et al., G.R. No. 124354, December 29, 1999). 12. In the Ramos case, “Erlinda Ramos, after seeking professional medical help, was advised to undergo an operation for the removal of a stone in her gall bladder (cholecystectomy). She was referred to Dr. Hosaka, a surgeon, who agreed to perform the operation on her. The operation was scheduled for June 17, 1985 at 9:00 in the morning at private respondent De Los Santos Medical Center (DLSMC). Since neither Erlinda nor her hus band, Rogelio, knew of any anesthesiologist, Dr. Hosaka recommended to them the services of Dr. Gutierrez. Dr. Hosaka finally arrived at the hospital at around 12:10 in the afternoon, or more than three (3) hours after the scheduled operation. Cruz, who was then still inside the operating room, heard about Dr. Hosaka’s arrival. While she held the hand of Erlinda, Cruz saw Dr. Gutierrez trying to intubate the patient. Cruz heard Dr. Gutierrez utter: “ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan.” Cruz noticed a bluish discoloration of Erlinda’s nailbeds on her left hand. She (Cruz) then heard Dr. Hosaka instruct someone to call Dr. Calderon, another anesthesiologist. When he arrived, Dr. Calderon attempted to intubate the patient. The nailbeds of the patient remained bluish, thus, she was placed in a trendelenburg position — a position where the head of the patient is placed in a position lower than her feet. At this point, Cruz went out of the operating room to express her concern to Rogelio that Erlinda’s operation was not going well. Cruz quickly rushed back to the operating room and saw that the patient was still in trendelenburg position. At almost 3:00 in the afternoon, she saw Erlinda being wheeled to the Intensive Care Unit (ICU). The doctors explained to Rogelio that his wife had bronchospasm. Erlinda stayed

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in the ICU for a month. She was released from the hospital only four months later or on November 15, 1985. Since the ill-fated operation, Erlinda remained in comatose condition until she died on August 3, 1999.” The Supreme Court held that “[t]he injury incurred by Erlinda does not normally happen absent any negligence in the administration of anesthesia and in the use of an endotracheal tube. As was noted in the Decision, the instruments used in the administration of anesthesia, including the endotracheal tube, were all under the exclusive control of Dr. Gutierrez and Dr. Hosaka. In Voss vs. Bridwell, which involved a patient who suffered brain damage due to the wrongful administration of anesthesia, and even before the scheduled mastoid operation could be performed, the Kansas Supreme Court applied the doctrine of res ipsa loquitur , reasoning that the injury to the patient therein was one which does not ordinarily take place in the absence of negligence in the administration of an anesthetic, and in the use and employment of an endotracheal tube. The court went on to say that “[o]rdinarily a person being put under anesthesia is not rendered decerebrate as a consequence of administering such anesthesia in the absence of negligence. Upon these facts and under these circumstances, a layman would be able to say, as a matter of common knowledge and observation, that the consequences of professional treatment were not as such as would ordinarily have followed if due care had been exercised.” (Ramos, et al. vs. Court of Appeals, et al., G.R. No. 124354, April 11, 2002). Liability of hospitals

13. As regards the responsibility of the hospital in medical malpractice cases, the Supreme Court first noted the “unique practice (among private hospitals) of filling up specialist staff with attending and visiting “consultants,” who are allegedly not hospital employees.” It also noted that hospitals exercise significant control in the hiring and firing of consultants and in the conduct of their work within the hospital premises. Doctors who apply for “consultant” slots, visiting or attending, are required to submit proof of completion of residency, their educational qualifications; generally, evidence of accreditation by the appropriate board (diplomate), evidence of fellowship in most cases, and references. These re-


quirements are carefully scrutinized by members of the hospital administration or by a review committee set up by the hospital who either accept or reject the application. After a physician is accepted, either as a visiting or attending consultant, he is normally required to attend clinico-pathological conferences, conduct bedside rounds for clerks, interns and residents, moderate grand rounds and patient audits and perform other tasks and responsibilities, for the privilege of being able to maintain a clinic in the hospital, and/or for the privilege of admitting patients into the hospital. In addition to these, the physician’s performance as a specialist is generally evaluated by a peer review committee on the basis of mortality and morbidity statistics, and feedback from patients, nurses, interns and residents. A consultant remiss in his duties, or a consultant who regularly falls short of the minimum standards acceptable to the hospital or its peer review committee, is normally politely terminated. In other words, private hospitals, hire, fire and exercise real control over their attending and visiting “consultant” staff. While “consultants” are not, technically employees, the control exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with the exception of the payment of wages. In assessing whether such a relationship in fact exists, the control test is determining. Accordingly, on the basis of the foregoing, for the purpose of allocating responsibility in medical negligence cases, an employer-employee relationship in effect exists between hospitals and their attending and visiting physicians. This being the case, there is basis for holding an employer solidarily responsible for the negligence of its employee is found in Article 2180 of the Civil Code which considers a person accountable not only for his own acts but also for those of others based on the former’s responsibility under a relationship of patria potestas. Such responsibility ceases when the persons or entity concerned prove that they have observed the diligence of a good father of the family to prevent damage. In other words, while the burden of proving negligence rests on the plaintiffs, once negligence is shown, the burden shifts to the respondents (parent, guardian, teacher

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or employer) who should prove that they observed the diligence of a good father of a family to prevent damage (Ibid.). The hospital filed motion for reconsideration. It argued that DLSMC “does not hire or engage the services of a consultant, but rather ra ther,, accredits the latter and grants him or her the privilege of maintaining a clinic and/or admitting patients in the hospital upon a showing by the consultant that he or she possesses the necessary qualifications, such as accreditation by the appropriate board boar d (dipl (diplomate omate), ), eviden evidence ce of fellow fellowship ship and refe referenc rences. es. Second, it is not the hospital but the patient who pays the consultant’s fee for services rendered by the latter. Third, a hospital does not dismiss a consultant; instead, the latter may lose his or her accreditation or privileges granted by the hospital. Lastly, when a doctor refers a patient for admission in a hospital, it is the doctor who prescribes the treatment to be given to said patient. The hospital’s obligation is limited to providing the patient with the preferred room accommodation, the nutritional diet and medications prescribed prescr ibed by the doctor, the equipment and facilities necessary for the treatment of the patient, as well as the services of the hospital staff who perform the ministerial tasks of ensuring that the doctor’s doctor ’s orders are carried out strictly” (Ramos et al. vs. Court of Appeals, G.R. No. 124354, April 11, 2002). The Supreme Court granted the motion for reconsideration and ruled that “[a]s explained by respondent hospital, the admission of a physician to membership in DLSMC’s medical staff as active or visiting consultant is first decided upon by the Credentials Committee thereof, the reof, which is composed of the heads of the various specialty departments such as the Department of Obstetrics and Gynecology, Pediatrics, Surgery with the department head of the particular specialty applied for as chairman. The Credentials Committee then recommends to DLSMC’s Medical Director or Hospital Administrator the acceptance or rejection of the applicant physician, and said director or administrator validates the committee’s recommendation. Similarly, Similarly, in cases where a disciplinary action is lodged against a consultant, the


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same is initiated by the department to whom the consultant concerned belongs and filed with the Ethics Committee consisting of the department specialty heads. The medical director/hospital administrator merely acts as ex-officio member of said committee. Neither is there any showing that it is DLSMC which pays any of its consultants for medical services rendered by the latter to their respective patients. Moreover, the contract between the consultant in respondent hospital and his patient is separate and distinct from the contract between respondent hospital and said patient. The first has for its object the rendition of medical services by the consultant to the patient, while the second concerns the provision by the hospital of facilities and services by its staff such as nurses and laboratory personnel necessary for the proper treatment of the patient. Further, no evidence was adduced to show that the injury suffered by petitioner Erlinda was due to a failure on the part of respondent DLSMC to provide for hospital facilities and a nd staff necessary for her treatment. For these reasons, the finding of liability on the part of DLSMC for the injury suffered by Erlinda was reversed.” (Ibid.). 14. As reg regar ards ds spe speci cial al or or limi limited ted pr prac actit tition ioner ers, s, the the Special or rules and standards governing the duty and liability of limited physicians and surgeons in the performance of profes- practitioners sional services are applicable to practitioners of the kindred branches of the healing art, such as chiropodists, chiropractors, Christian science healers, dentists, practitioners of naturopathy, nurses, optometrists and opticians and operators of X-ray machines. 15. As Asid idee from from pri prima mary ry lia liabi bilit lity y of ph phys ysic ician ianss and and surgeons for their own negligent acts, the weight of authorities in common law countries also hold them vicariously liable for the acts of their assistants. This proceeds from the premise that a physician or surgeon must exercise due care in selecting his assistants. While courts in the United States are divided as to the liability of an operating surgeon, for instance, insta nce, for the negligence of the assisting nurses, it seems that the prevailing view is to consider whether the nurse is the employee of the hospital or the “borrowed” assistant of the

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surgeon. As stated in 61 Am Jur 2d, page 438 , “an increasincreasing number of courts, although not abandoning the socalled ‘Captain of the Ship’ rule under which the surgeon is considered to be in command in the operating room, have recognized that many acts performed by a nurse in the operating room are such as do not require medical skill and judgment, and do not necessitate control and supervision by surgeon.” Thus, for acts of nurses nurs es belonging to these categories and which are not considered “medical”, the nurse is considered to have acted as servant of the hospital, and that the surgeon may not be held liable for the nurse’s negligence therein. Legal malpractice

16. Le 16. Lega gall malp malpra ract ctic icee is like likewi wise se a rec recog ogni nize zed d ground for civil liability. In STI Drivers Association, et al. vs. Court of Appeals, et al., G.R. No. 143196, November 26, 2002, it was held that damages can be recovered as a result of inaction of counsel. And in a case where the lawyer was negligent and the negligence resulted in the dismissal of the client’s civil action for damages, the Supreme Court ordered the lawyer to reimburse his client with attorney’s fees and paid court appearances (Richards vs. Asoy, G.R. No. AC No. 2655, July 9, 1987). But lawyers, like doctors, are not liable for mere error of judgment. “Mistakes of attorneys as a s to the competency of a witness, the sufficiency, relevancy or irrelevancy of certain evidence, the proper defense or the burden of proof, failure to introduce evidence, to summon witnesses, and to argue the case, unless they prejudice the client and prevent him from properly presenting his case, do not constitute gross incompetence or negligence (Tesoro v. Court of Appeals, G.R. No. 36666, December 19, 1973, 54 SCRA 296, 304 citing People v. Ner, G.R. No. 25504, July 31, 1969, 28 SCRA 1151, Rivero v. Santos et al., 98 Phil. 500 (1956), Isaac v. Mendoza, 89 Phil. 279 (1951); Montes v. CFI of Tayabas, 48 Phil. 640 (1926); People v. Manzanilla, 43 Phil. 167 (1922); US v. Dungca, 27 Phil. 274 (1914); US v. Umali, 15 Phil. 33 (1910).

Liability of directors and trustees of corporation

17. Un 17. Unde derr Sec Sectio tion n 31 31 of of the the Co Corp rpor orati ation on Co Code de of the Philippines, directors or trustees who are guilty of gross negligence or bad faith in directing the affairs of the corporation or acquire any personal or pecuniary


interest in conflict with their duty as such directors or trustees shall be liable jointly and severally for all damages resulting therefrom suffered by the corporation, its i ts stockholders or members and other persons. 18. An 18. Anot othe herr case case sim simil ilar arly ly reg regar arde ded d as tort tort is is nuinui- Nuisance sance. In the United States, nuisance is considered a property tort. But in the Philippines, nuisance is placed in different concept from quasi-delict which is generally founded on negligence. In negligence, the question generally asked is whether it was unreasonable for the defendant to act as he did in view of the threatened danger or harm to one in plaintiff’s position. In I n nuisance, on the other hand, the question generally is whether the defendant’s use of his property was unreasonable to plaintiff, without regard to foreseeability of injury. Liability for negligence is based on a want of proper care, while, ordinarily, a person who creates or maintains a nuisance is liable for the resulting injury to others regardless of the degree of care or skill exercised to avoid such injury. injury. Also, the principles of negligence ordinarily apply where the cause of action is for harm resulting from one act which created an unreasonable risk of in jury; whereas the principles of nuisance ordinarily apply where the cause of action is for continuing harm caused by continuing or recurrent acts which cause discomfort or annoyance to plaintiff in the use of his property (II Tolentino 432). Nuisance is treated in Book II, Title VIII of the Civil Code.

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DAMAGES CHAPTER 1 INTRODUCTORY CONCEPTS

Damages, defined

1. In legal contemplation, the term “damages” is the sum of money which the law awards or imposes as pecuniary compensation, recompense or satisfaction for an injury done (25 CJS 613).

Distinguished from other concepts

2. Although the words “damages,” “damage” and “injury” are sometimes used synonymously, there is a material distinction between damages and injury. Injury is the illegal invasion of a legal right; damage is the loss, hurt or harm which results from the injury; and damages are the recompense or compensation awarded for the damage suffered. Thus, there can be damage without injury in those instances in which the loss or harm was not the result of a violation of a legal duty. In such cases, the consequences must be borne by the injured person alone, the law affords no remedy for damages resulting from an act which does not amount to a legal injury or wrong. These situations are often called damnum absque injuria. In other words, in order that a plaintiff may maintain an action for the injuries of which he complains, he must establish that such injuries resulted from a breach of duty which the defendant owed to the plaintiff a concurrence of injury to the plaintiff and legal responsibility by the person causing it. The underlying basis for the award of tort damages is the premise that an individual was injured in contemplation of law. Thus, there must first be a breach of some duty and the imposition of liability for that breach before damages may be awarded; and the breach of such duty should be the 124


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proximate cause of the injury (BPI Express Card Corporation vs. Court of Appeals, G.R. No. 120639, September 25, 1998). 3. If damage results from a person’s exercising his legal rights, it is damnum absque injuria1 (Auyong Hian vs. CTA, 59 SCRA 110). 4. The fundamental principle or theory on which Rationale an award of damages is based is just compensation. It is indemnity or reparation for the loss or injury sustained by the injured party so that he may be made whole and restored as nearly as possible to the position or condition he was in prior to the injury (25 CJS 626). 5. Damages to property or person are either gen- General and eral or special. General damages are such as naturally special and necessarily result from the wrong. They are such as damages might accrue to any person similarly situated. Special damages are such as do in fact accrue to the particular individual by reason of the particular circumstances of the case. Special damages are such as have proximately resulted but do not always immediately result from the breach and will not therefore be implied by law (cf., 25 CJS 620). 6. The difference becomes significant in the area of pleading. General damages need not be specially pleaded and may be embraced in the general plea for “such other relief as may be deemed just and equitable under the premises.” But special damages must be specifically prayed for. “If any special damage has also been suffered, it should be set out on the pleadings” (Jimenez vs. Reyes, G.R. No. 8227, March 9, 1914). 7. In an action for breach of contract of carriage where by reason thereof, the passengers died, damages for loss of earning capacity, separately from the indemnities by reason of death, may be considered included in the prayer for “actual damages” and for other “just and

1

Literally, “damage without injury.”

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equitable reliefs” (Bulante vs. Liante, et al., G.R. No. L-21583 & L-21591-92, May 20, 1968). 8. In the Philippines, damages may be: (1) Actual or compensatory; (2) Moral; (3) Nominal; (4) Temperate or moderate; (5) Liquidated; or (6) Exemplary or corrective (Art. 2197, Civil Code).

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CHAPTER 2 ACTUAL DAMAGES

1. Actual and compensatory damages are those Actual recoverable because of pecuniary loss — in business, damages trade, property, profession, job or occupation (Albenson defined Enterprises Corp. et al. vs. Court of Appeals, et al., G.R. No. 88694, January 11, 1993). Under both the Spanish Civil Code and American law of damages, actual damages for a negligent act or omission are confined to those which “were foreseen or might have been foreseen,” or those which were “the natural and probable consequences” or “the direct and immediate consequences” of the act or omission. Actual damages, under the American system, include pecuniary recompense for pain and suffering, injured feelings, and the like. Actual damages in the Philippines do not extend to such incidents. Aside from this exception, actual damages, in this jurisdiction, in the sense that they mean just compensation for the loss suffered, are practically synonymous with actual damages under the American system (Algarra vs. Sandejas, G.R. No. 8385, March 24, 1914). 2. Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages (Art. 2199, NCC). Both “actual” damages and “consequential” damages are dealt with in the Civil Code under the same Chapter 2 of Title XVIII and the two terms are used as equivalent of one another (M.D. Transit & Taxi Co., Inc. vs. Court of Appeals, et al., G.R. No. L-23882, February 17, 1968). 127

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Requirements for the grant of actual damages


3. In determining actual damages, the court can not rely on “speculation, conjecture or guess works as to the amount. Without the actual proof of loss, the award of actual damages becomes erroneous (Guilatco vs. City of Dagupan, et al., G.R. No. 61516, March 21, 1989). To seek recovery for actual damages, it is necessary to prove with a reasonable degree of certainty, premised upon competent proof and on the best evidence obtainable by the injured party, the actual amount of loss. Courts cannot simply assume that damages were sustained by the injured party, nor can it rely on speculation or guesswork in determining the fact and amount of damages (People vs. Degoma, G.R. No. 89404-405, May 22, 1992). A party is entitled to adequate compensation only for duly proved pecuniary loss actually suffered by him or her. Such damages, to be recoverable, must not only be capable of proof, but must actually be proved with a reasonable degree of certainty. Damages cannot be presumed or premised on conjecture or even logic. In making an award, courts must point out specific facts which show a basis for the amount of compensatory or actual damages (Oarde et al. vs. Court of Appeals, et al., G.R. No. 104774-75, October 8, 1997). 4. The burden of proof of the damages suffered is on the party claiming the same. It is the duty of petitioner to present evidence to support his claim for actual damages (Salas vs. Court of Appeals, G.R. No. 86500, November 21, 1990). He must establish his case by a preponderance of evidence which means that the evidence, as a whole, adduced by one side is superior to that of the other (G.Q. Garments, Inc. versus Miranda, et al., G.R. No. 161722, July 20, 2006). Actual damages are such compensation or damages for an injury that will put the injured party in the position in which he had been before he was injured. They pertain to such injuries or losses that are actually sustained and susceptible of measurement. Except as provided by law or by stipulation, a party is entitled to adequate compensation only for such pecuniary loss as he has duly proven. (Ong et al. vs. Court of Appeals, et al., G.R. No. 117103, January 29, 1999). But “[w]here defense admitted as to the claim for actual damages, the award of actual damages in the amount of


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P47,000.00 may be upheld’’ (cf., People vs. Reyes, G.R. No. 135682, March 26, 2003). 5. Actual damages is not proved by mere testimony of witness. In a case, it was ruled that “[t]he award by the court a quo of P8,300.00 as actual damages is not supported by the evidence on record. We have only the testimony of the victim’s elder sister stating that she incurred expenses of P8,300.00 in connection with the death of Malaspina. However, no proof of the actual damages was ever presented in court. Of the expenses alleged to have been incurred, the Court can only give credence to those supported by receipts and which appear to have been of genuinely expended in connection with the death of the victim. Since the actual amount was not substantiated, the same cannot be granted” (Fuentes vs. Court of Appeals, et al., G.R. No. 111692, February 9, 1996). To prove actual damages, the best evidence available to the injured party must be presented. The court cannot rely on uncorroborated testimony whose truth is suspect, but must depend upon competent proof that damages have been actually suffered. Thus, in a case, the actual damages for medical and hospitalization expenses to P5,017.74 was reduced. (Baliwag Transit Inc. vs. Court of Appeals, et al., G.R. No. 116110, May 15, 1996). 6. Only expenses supported by receipts and which appear to have been actually expended in connection with the death of the victim should be allowed. The award of actual damages cannot be based on the allegation of a witness without any tangible document to support such claim (David vs. Court of Appeals, et al., G.R. No. 111168-69, June 17, 1998). A list of expenses cannot replace receipts when the latter should have been issued as a matter of course in business transactions. (People vs. Bano, G.R. No. 148710, January 15, 2004). 7. Chapter 2, Title XVIII, Book IV of the Civil Components Code governs the award of actual or compensatory dam- of actual ages. The indemnification shall comprehend not only damages the value of the loss suffered, but also that of the profits that the obligee failed to obtain.

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8. There are two kinds of actual or compensatory damages: one is the loss of what a person already possesses, and the other is the failure to receive as a benefit that which would have pertained to him . . . In the latter instance, the familiar rule is that damages consisting of unrealized profits, frequently referred as “ganacias frustradas” or “lucrum cessans,’’ are not to be granted on the basis of mere speculation, conjecture, or surmise, but rather by reference to some reasonably definite standard such as market value, established experience, or direct inference from known circumstances [Producers Bank of the Philippines vs. Court of Appeals, 365 SCRA 326 (2001)]. In contracts and quasicontracts

9. In contracts and quasi-contracts, 1 the damages which may be awarded are dependent on whether the obligor acted with good faith or otherwise. 10. In case of good faith, the damages recoverable are those which are the natural and probable consequences of the breach of the obligation and which the parties have foreseen or could have reasonably foreseen at the time of the constitution of the obligation. If the obligor acted with fraud, bad faith, malice, or wanton attitude, he shall be responsible for all damages which may be reasonably attributed to the non-performance of the obligation (Art. 2201, NCC). 11. It is true that under Article 2206 of the Civil Code of the Philippines, only deaths caused by a crime as quasi delict are entitled to actual and compensatory damages without the need of proof of the said damages. However, the Civil Code, in Article 1764 thereof, expressly makes Article 2206 applicable “to the death of a passenger caused by the breach of contract by a common carrier.” Accordingly, a common carrier is liable for

1

The Civil Code does not confine itself exclusively to the quasicontracts enumerated from Articles 2144 to 2175 but is open to the possibility that, absent a pre-existing relationship, there being neither crime nor quasi-delict , a quasi-contractual relation may be forced upon the parties to avoid a case of unjust enrichment (PNB vs. Court of Appeals, et al., G.R. No. 97995, January 21, 1993).


actual or compensatory damages under Article 2206 in relation to Article 1764 of the Civil for deaths of its passengers caused by the breach of the contract of transportation. The trial court awarded an indemnity of P30,000.00 for the death of the daughter of private respondents. The award of damages under Article 2206 has been increased to P50,000.00 (Sulpicio Lines, Inc. vs. Court of Appeals, et al., G.R. No. 113578, July 14, 1995 citing People v. Flores, 237 SCRA 653 [1994]). 12. In actions based on torts or quasi-delicts , ac- In quasitual damages include all the natural and probable con- delicts sequences of the act or omission complained of. There are two kinds of actual or compensatory damages: one is the loss of what a person already possesses (daño emergente), and the other is the failure to receive as a benefit that which would have pertained to him (lucro cesante) (Marikina Auto Line Transport Corporation vs. People, et al., G.R. No. 152040, March 31, 2006). 13. In crimes and quasi-delicts , the defendants In crimes shall be liable for all damages which are the natural and probable consequences of the act or omission complained of, whether or not such damages have been foreseen or could have reasonably been foreseen by the defendant (Public Estates Authority vs. Chu, G.R. No. 145291, September 21, 2005). In the United States, this rule is otherwise referred to as the eggshell skull rule (or thin-skull rule) which makes an individual responsible for all the consequences of his act, whether foreseen or unforeseen. The term implies that if a person had a skull as delicate as the shell of an egg, and a tortfeasor or assailant who did not know of that condition were to tap that person on the head, causing the skull to break, the responsible party would be held liable for all damages resulting from the wrongful contact, even though they were not foreseeable. The general maxim is that the defendant must “take their victim as they find them” (Internet-http:// www.answers.com//torts). 14. The civil liability ex delicto provided by the Revised Penal Code, that is, restitution, reparation and indemnification, all correspond to actual or compensatory damages in the Civil Code (People vs. Prades, G.R.

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No. 127569, July 30, 1998). But of the expenses allegedly incurred, the Court can only give credence to those supported by receipt and which appear to have been genuinely incurred in connection with the death, wake or burial of the victim. Thus, the Court cannot take account of receipts showing expenses incurred before the date of the slaying of the victim; those incurred after a considerable lapse of time from the burial of the victim and which do not have any relation to the death, wake or burial of the victim; those incurred for purely aesthetic or social purposes, such as the lining with marble of the tomb of the victim; those which appear to have been modified to show an increase in the amount of expenditure . . .; those expenditures which could not be reasonably itemized or determined to have been incurred in connection with the death, wake or burial of the victim; those which, nonetheless, would have been incurred despite the death, wake and burial of the victim, the death, wake and burial being merely incidental; and those which were not in fact shouldered by the immediate heirs of the victim, such as plane tickets by relatives or in-laws (People vs. Degoma and Taborada , 209 SCRA 266).

15. The indemnity authorized by our criminal law as civil indemnity ex delicto for the offended party, in the amount authorized by the prevailing judicial policy and aside from other proven actual damages, is itself equivalent to actual or compensatory damages in civil law. Said civil indemnity is mandatory upon finding of the fact of rape; it is distinct from and should not be denominated as moral damages which are based on different jural foundations and assessed by the court in the exercise of sound judicial discretion (People vs. Jalosjos, G.R. No. 132875-76, November 16, 2001). In cases of rape with homicide, the civil indemnity is fixed at P100,000.00. (People vs. Plana, et al., G.R. No. 128285, November 27, 2001). 16. Damages may be recovered for loss or impairment of earning capacity in cases of temporary or permanent personal injury (Article 2205, NCC). 17. As for lost earnings, the rule is that “the amount recoverable by the heirs of a victim of a tort is not the loss of the entire earnings, but rather the loss of


that portion of the earnings which the beneficiary would have received. In other words, only net earnings, not gross earnings, are to be considered, that is, the total of the earnings less expenses necessary in the creation of such earnings or income and minus living and other incidental expenses” (Dangwa Trans Co., Inc., et al. vs. Court of Appeals, et al., G.R. No. 95582, October 7, 1991) . An award for lost earning capacity refers to the net income of the deceased, i.e., his total net of expenses (People vs. Panabang, G.R. Nos. 137514-15, January 16, 2002.). 18. The more important variables taken into account in determining the compensable amount of lost earnings are: (1) the number of years for which the victim would otherwise have lived; and (2) the rate of loss sustained by the heirs of the deceased. In Villa Rey Transit, Inc. v. Court of Appeals (31 SCRA 511) the Court computed the first factor, i.e. life expectancy, by applying the formula (2/3 x [80 age at death]) adopted in the American Expectancy Table of Mortality or the actuarial Combined Experience Table of Mortality. That formula was followed by the Court in cases subsequent to Villa Rey Transit, e.g. Philippine Airlines v. Court of Appeals, People v. Daniel (supra); and Dangwa Transportation Co., Inc. v. Court of Appeals. The Court notes that the formula used in Villa Rey Transit was based on a table derived from actuarial experience prior to 1970 when the decision in Villa Rey Transit was promulgated. Actuarial experience subsequent to 1970 has, however, changed and indicates a longer life expectancy in the Philippines due to conditions including, among other things, advances in medical science, improved nutrition and food supply, diet consciousness and health maintenance. The 1970 mortality table was updated in 1980 to reflect the changes of conditions (People vs. Quilaton, G.R. No. 69666, January 23, 1992). 19. In computing the loss of the earning capacity of the victim, several factors are considered besides the mathematical computation of annual income times life expectancy. Allowances are made for circumstances which could reduce the computed life expectancy of the victim, e.g., nature of work of the victim, his lifestyle,

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age, and state of health prior to his death as well as the rate of loss sustained by the heirs of the victim. In a case, albeit there was no evidence on the state of health of the victim, considering his advanced age, the Court found it reasonable and fair to assume that he would not be able to work and earn, as a dentist, until he reaches the final moment of his life. Thus, the award for loss of the earning capacity of the deceased was reduced to P144,000.00, which is the approximate amount he would have earned until his 75th birthday (People vs. Balanag, et al., G.R. No. 103225, September 15, 1994). 20. Anent the amount of lost income, the formula for its computation is “Net Earning Capacity = [2/3 x (80 - age at time of death) x (gross annual income — reasonable and necessary living expenses)]” (People vs. Sia, et al., G.R. No. 137457, 21 November 2001). In the absence of proof of living expenses of the deceased, net earnings are computed at fifty (50%) percent of the gross earnings (Ibid.). 21. A handwritten certification in a yellow pad indicating therein that the victim was paid P146.75 per day hardly suffices as proof to justify an award as it is, at best, self-serving. While there was additional testimonial evidence by the victim’s mother on his income, the same can no longer serve as basis for lost earnings, in the light of the ruling in People v. Panabang, and reiterated in People v. Cuenca. There it was held that indemnification for loss of earning capacity partakes of the nature of actual damages which must be duly proven; and a self-serving statement, being unreliable, is not enough. For lost income to be recovered, there must be an unbiased proof of the deceased’s average, not just gross income (People vs. Loterono, G.R. No. 146100, November 13, 2002). 22. The indemnification for loss of earning capacity partakes of the nature of actual damages which must be duly proved. In the absence of competent evidence to prove how much the victim was earning, the heirs of the victim are not entitled thereto (People vs. Quimzon, G.R. No. 133541, April 14, 2004).


By way of exception, testimonial evidence may suffice if the victim was either (1) self-employed, earning less than the minimum wage under current labor laws, and judicial notice may be taken of the fact that in the victim’s line of work, no documentary evidence is available; or (2) employed as a daily-wage worker earning less than the minimum wage under current labor laws. (People vs. Duban, G.R. No. 141217, 26 September 2003; People vs. Mallari, G.R. No. 145993, 17 June 2003; People vs. Caraig, G.R. Nos. 116224-27, 28 March 2003). 23. Also, temperate damages2 may be awarded in lieu of actual damages for loss of earning capacity where the income of the victim was not sufficiently proven (Victory Liner vs. Gammad, et al., G.R. No. 159636, November 25, 2004). 24. The amount of damages for death caused by a crime or quasi-delict shall be at least three thousand pesos, even though there may have been mitigating circumstances. In addition: (1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall be paid to the heirs of the latter; such indemnity shall in every case be assessed and awarded by the court, unless the deceased on account of permanent physical disability not caused by the defendant, had no earning capacity at the time of his death; (2) If the deceased was obliged to give support according to the provisions of Article 291, the recipient who is not an heir called to the decedent’s inheritance by the law of testate or intestate succession, may demand support from the person causing the death, for a period not exceeding five years, the exact duration to be fixed by the court (Article 2206). 25. Civil indemnity in the amount of P50,000.00 is automatically granted to the heirs of the victim without need of any evidence other than the fact of the commission of the crime. (People vs. Obello, G.R. No. 108772, January 14, 1998).

2

(Chapter 5 on Damages , infra.)

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26. But the award of civil indemnity in the amount of P30,000.00 must be deleted where the accused was charged with and convicted, not of homicide, but rather of illegal possession of firearm aggravated by use of such weapon in a killing. Civil indemnity for death may, of course, be properly awarded in a separate criminal prosecution for homicide or murder. In People v. Deunida , (231 SCRA 520 [1994]) the Supreme Court held that: “ . . . the awards for actual damages in the amounts of P50,000.00 representing funeral expenses, although stipulated by the parties, and P50,000.00 as moral damages, which the parties left to the discretion of the trial court, are improper and should be deleted for, although death had taken place, the offense charged is illegal possession of firearm and the killing merely aggravated it. No private interest is therefore involved. The civil liability arising from death may be the subject of a separate civil action or impliedly instituted with the criminal action for murder or homicide.” (People vs. Somooc, G.R. No. 100921, June 2, 1995). 27. The civil indemnity is to be awarded to all compulsory heirs. Thus, in a case where the RTC ordered the P50,000.00 indemnity to be paid to the victim’s surviving spouse alone, Supreme Court held that the award should actually also be given to their nine children who, like their mother, are compulsory heirs of the victim (People vs. Bahenting, G.R. No. 127659, February 24, 1999). Interest

28. In Eastern Shipping Lines, Inc. vs. Court of Ap peals, 234 SCRA 78 (1994), Supreme Court set a controlling guideline on interests as an aspect or component of actual damages, in this wise: I. When an obligation, regardless of its source, i.e., law, contracts, quasi-contracts, delicts or quasi-delicts is breached, the contravenor can be held liable for damages. The provisions under Title XVIII on “Damages” of the Civil Code govern in determining the measure of recoverable damages. II. With regard particularly to an award of interest in the concept of actual and compensatory damages,


the rate of interest, as well as the accrual thereof, is imposed, as follows: 1. When the obligation is breached, and it consists in the payment of a sum of money, i.e., a loan or forbearance of money, the interest due should be that which may have been stipulated in writing. Furthermore, the interest due shall itself earn legal interest from the time it is judicially demanded. In the absence of stipulation, the rate of interest shall be 12% per annum to be computed from default, i.e., from judicial or extrajudicial demand under and subject to the provisions of Article 1169 of the Civil Code. 2. When an obligation, not constituting a loan or forbearance of money, is breached, an interest on the amount of damages awarded may be imposed at the discretion of the court at the rate of 6% per annum. No interest, however, shall be ad judged on unliquidated claims or damages except when or until the demand can be established with reasonable certainty. Accordingly, where the demand is established with reasonable certainty, the interest shall begin to run from the time the claim is made judicially or extrajudicially (Art. 1169, Civil Code) but when such certainty cannot be so reasonably established at the time the demand is made, the interest shall begin to run only from the date the judgment of the court is made (at which time the quantification of damages may be deemed to have been reasonably ascertained). The actual base for the computation of legal interest shall, in any case, be on the amount finally adjudged. 3. When the judgment of the court awarding a sum of money becomes final and executory, the rate of legal interest, whether the case falls under paragraph 1 or paragraph 2, above, shall be 12% per annum from such finality until its satisfaction, this interim period being deemed to be by then an equivalent to a forbearance of credit. 29. Supreme Court held in GSIS vs. Court of Ap peals, G.R. No. 52478, October 30, 1986, 145 SCRA 311 ,

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that the rates under the Usury Law (amended by P.D. 116) are applicable only to interest by way of compensation for the use or forbearance of money, interest by way of damages is governed by Article 2209 of the Civil Code. 30. Interest due shall earn legal interest from the time it is judicially demanded, although the obligation may be silent upon this point (Article 2212, NCC). Attorney’s fees

31. In the absence of stipulation, attorney’s fees and expenses of litigation, other than judicial costs, cannot be recovered, except: (1) When exemplary damages are awarded; (2) When the defendant’s act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest; (3) In criminal cases of malicious prosecution against the plaintiff; (4) In case of a clearly unfounded civil action or proceeding against the plaintiff; (5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff’s plainly valid, just and demandable claim; (6) In actions for legal support; (7) In actions for the recovery of wages of household helpers, laborers and skilled workers; (8) In actions for indemnity under workmen’s compensation and employer’s liability laws; (9) In a separate civil action to recover civil liability arising from a crime; (10) When at least double judicial costs are awarded; (11) In any other case where the court deems it just and equitable that attorney’s fees and expenses of litigation should be recovered (Article 2208, NCC). 32. The general rule is that attorney’s fees cannot be recovered as part of damages because of the policy that no premium should be placed on the right to litigate. They are not to be awarded every time a party wins a suit. The power of the court to award attorney’s fees under Article 2208 of the Civil Code demands factual, legal and equitable justification. Even when a claimant is compelled to litigate with third persons or to incur expenses to protect his rights, still attorney’s fees may not be awarded where there is no sufficient showing of bad faith in the parties’ persistence of a case other than an erroneous conviction of the righteousness of his cause (Citytrust Banking Corp. vs. Villanueva, G.R. No. 141011 & 141028, July 19, 2001).


33. Wh Wher eree rec recov over erab able le,, atto attorn rney ey’s ’s fee feess are are also also in in the nature of actual damages, which must be duly proved. They are also subject to certain standards, to wit: (1) they must be reasonable, that is to say, say, they must have a bearing on the importance of the subject matter in controversy; (2) the extent of the services rendered; and (3) the professional standing of the lawyer. In all cases, they must be addressed in a full-blown trial and not on the bare word of the parties. And always, they are subject to the moderating hand of the courts. (Lacson, et al. vs. Reyes, et al., G.R. No. 86250, February 26, 1990). 34. At Atto torn rney ey’s ’s fe fees es as an ite item m of of dam damag ages es pr proovided for under Article 2208 of the Civil Code is an award made in favor of the litigant, not of his counsel, and the litigant, not his counsel, is the judgment creditor who may enforce the judgment for attorney’s fees by execution (Quirante vs. Intermediate Appellate Court, G.R. No. 73886, January 31, 1989). 35. ‘[ ‘[T] T]he he rea reason son fo forr the the awar award d of at atto torn rney ey’s ’s fee feess must be stated in the text of the court’s decision, otherwise, if it is stated only in the dispositive portion of the decision, the same shall be disallowed on appeal.’ (Policarpio vs. Court of Appeals, et al., G.R. No. 94563, March 5, 1991). A cursory reading of the trial court’s decision shows that the award of attorney’s fees was stated only once — “As for attorney’s fees, the court finds that the amount of P20,000.00 including litigation expenses are reasonable” — just below the dispositive portion of the decision which reads: “WHEREFORE judgment is hereby rendered ordering the defendants jointly and severally liable to pay the plaintiff the total sum of TWO HUNDRED THIRTEEN THOUSAND ONE HUNDRED FORTY EIGHT EIGHT PESOS (P213,148.00) by way of damages and to pay the costs of this suit.” The trial court failed to justify the payment of attorney’s fees by RCPI, therefore, the award of attorney’s fees as part of its liability should be disallowed and deleted (RCPI et al. vs. Rodriguez, G.R. No. 83768, February 28, 1990). 36. Th Thee settl settled ed ru rule le is tha thatt the the ma matte tterr of of atto attorne rney’s y’s fees cannot be mentioned only in the dispositive portion of the decision. The same goes for the award of litiga-

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tion expenses. They must be clearly explained and justified by the trial court in the body of its decision for the general rule is that attorney’s fees and expenses of litigation cannot be recovered in the absence of stipulation (Sps. Samatra vs. De Parinas, G.R. No. 142958, April 24, 2002). The award of attorney’s fee is i s the exception rather than the general rule. As such, it is necessary for the court to make findings of facts and law l aw that would bring the case within the exception and justify the grant of such award (Citibank, N.A. vs. Sps. Cabamongan, et al., G.R. No. 146918, May 2, 2006). 37. Re Reaso asonab nable le att attorn orney ey’s ’s fee feess cons constit titute ute a pro proper per element of damages in an action based upon wrongful attachment. ‘. . . the more generally prevailing view is that one against whom an attachment has been wrongful sued out is entitled to recover reasonable counsel fees incurred or expended in defending against such attachment’ (7 C.J.S., 372, cited in Francisco, supra , p. 170). And ‘in cases mentioned in Article 2208 (Civil Code) attorney’s fees constitute a part of actual damages’ (PCIB vs. Intermediate Appellate Court, G.R. No. 73610, April 19, 1991 citing Fores vs. Miranda, L-12103, March 4, 1959). In all cases, the attorney’s fees and expenses of litigation must be reasonable (Art. 2208, NCC, last par.). 38. Ar 38. Artic ticle le III III of of the the La Labo borr Code Code an and d Rule Rule VI VIII II,, Sec. II, Book III of the Omnibus Rules Implementing the Labor Code, provide that “[i] n cases of unlawful withholding of wages the culpable party may be assessed attorney’s fees equivalent to ten percent of the amount of wages recovered.’ recovered.’’’ Subrogatory right of insurer

39. If the 39. the plai plaint ntif iff’s f’s prop proper erty ty has has bee been n insur insured ed,, and he has ‘received indemnity from the insurance company for the injury or loss arising out of the wrong or breach of contract complained of, the insurance company shall be subrogated to the rights of the insured against the wrongdoer or the person who has violated the contract. If the amount paid by the insurance company does not fully cover the injury or loss, loss , the aggrieved party shall be entitled to recover the deficiency from the person causing the loss or injury (Article 2207, NCC).

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CHAPTER 3 MORAL DAMAGES

1. Mora Mo rall dam damag ages es in incl clud udee phy physi siccal su sufffe feri ring ng,, Nature and mental anguish, fright, fri ght, serious anxiety an xiety,, besmirched repu- concept tation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendant’s wrongful act or omission (Art. 2217, NCC). 2. Mora Mo rall dam damag ages es ar aree awa awarrde ded d to to com compe pen nsa sate te one for manifold injuries such as physical phys ical suffering, mental anguish, serious, anxiety, besmirched reputation, wounded feelings and social humiliation. These damages must be understood to be in the concept of grants, not punitive or corrective in nature, calculated to compensate the claimant for the injury suffered (del Mundo vs. Court of Appeals, et al., G.R. No. 104576, January 20, 1995). 3. In th thee ca case se of mo mora rall da dama mage ges, s, rec ecov over ery y is more an exception rather than the rule. Moral damages are not punitive in nature but are designed to compensate and alleviate the physical suffering, mental anguish, fright, serious anxiety anxiety,, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar harm unjustly caused to a person. In order that an award of moral damages can be aptly justified, the claimant must be able to satisfactorily prove that he has suffered such damages and that the injury causing it has sprung from any of the cases listed in Articles 2219 and 2220 of the Civil Code. Then, too, the damages must be shown to be the proximate result of a wrongful act or omission. The claimant must establish the factual basis of the damages and its causal tie with the acts of the defendant. In 141

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fine, an award of moral damages would require, firstly, evidence of besmirched reputation or physical, mental or psychological suffering sustained sustain ed by the claimant; secondly, a culpable act or omission factually established; thirdly, proof that the wrongful act or omission of the defendant is the proximate cause of the damages sustained by the claimant; and fourthly, that the case is predicated on any of the instances expressed or envisioned by Article 2219 and Article 2220 of the Civil Code (PT & T vs. Court of Appeals, G.R. No. 139268, September 3, 2002). 4. Mora Mo rall dam damag ages es ar aree awa awarrde ded d to to ena enabl blee the the in injured party to obtain means, diversions or amusements that will serve to alleviate the moral suffering he/she has undergone, by reason of the defendant’s culpable action (Radio Communications vs. Rodriguez, supra). Its award is aimed at restoration, as much as possible, of the spiritual status quo ante (Makabali vs. Court of Appeals, 157 SCRA 253, 260, January 22, 1988). 5. Alth Al thou ough gh in inca capa pabl blee of pe pecu cuni niar ary y es esti tima mati tion on,, the amount must somehow be proportional to and in approximation of the suffering inflicted. Moral damages are not intended to impose a penalty to the wrongdoer, neither to enrich the claimant at the expense of the defendant. There is no hard-and-fast rule in determining what would be a fair and reasonable amount of moral damages, since each case must be governed by its own peculiar facts. Trial courts are given discretion in determining the amount, with the limitation that it should not be palpably and scandalously excessive (Lamis vs. Ong, G.R. No. 148923, August 11, 2005). Requirements for the grant of moral damages

6. Thee rul Th rulee is is set settl tled ed th that at mor oral al da dam mag ages es can an-not be awarded in the absence of a wrongful act or omission or fraud or bad faith (R & B Surety & Insurance Co., v. Intermediate Appellate Court, 129 SCRA 736; and Siasat v. Intermediate Appellate Court, 139 SCRA 238). 7. In or orde derr tha thatt mo mora rall dam damag ages es ma may y be aw awar arde ded, d, there must be pleading and proof of moral suffering, mental anguish, fright and the like (Congregation of the Reli gious of the Virgin Virgin Mary vs. vs. Court of Appeals, Appeals, et al., G.R. No. 126363, June 26, 1998). This is so because moral dam-


ages, though incapable of pecuniary estimation, are in the category of an award designed to compensate the claimant for actual injury suffered and not to impose a penalty on the wrongdoer (Kierulf, et al. vs. Court of Ap peals, et al., G.R. No. 99301, March 13, 1997). 8. The exception is in the case of rape. “Moral damages may be awarded to the rape victim, in such amount as the Court deems just, without the need for pleading or proof of the basis thereof. The conventional requirement of allegata et probata in civil procedure and for essentially civil cases was dispensed with in criminal prosecutions for rape with the civil aspect included therein since no appropriate pleadings are filed wherein such allegations can be made.” (People vs. Degala, G.R. No. 129292-93, June 20, 2001). Also, the unlawful killing of a person, which may either be murder or homicide, entitles the heirs of the deceased to moral damages without need of independent proof other than the fact of death of the victim (People vs. Hate, G.R. No. 145712, September 24, 2002). 9. Note that a rape victim is entitled to both civil indemnity and moral damages. Said civil indemnity is mandatory upon the finding of the fact of rape; it is distinct from and should not be denominated as moral damages which are based on different jural foundations and assessed by the court in the exercise of sound discretion (People vs. Gementiza, supra; People vs. Caballes, et al., G.R. Nos. 102723-24, June 19, 1997). 10. While proof is necessary, proof of actual loss is not. While actual damages cannot be awarded without proof of actual loss, “[m]oral damages may be awarded even without proof of pecuniary loss, inasmuch as the determination of the amount is discretionary on the court. Though incapable of pecuniary estimation, moral damages are in the nature of an award to compensate the claimant for actual injury suffered but which for some reason can not be proven.” (Guilatco vs. City of Dagupan, et al.). This does not mean however that the plaintiff may not fix an amount of moral damages in his complaint. Though moral, nominal, temperate, or exemplary damages are, under the Civil Code, damages

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that can not be shown with certainty, unlike actual damages, the plaintiff must ascertain, in his estimation, the sums he wants, and the sums required to determine the amount of docket and other fees (Gregorio, et al. vs. Angeles, et al., G.R. No. 85847, December 21, 1989). 11. There is no hard and fast rule in the determination of what would be a fair amount of moral damages, since each case must be governed by its own peculiar circumstances (Filinvest Credit Corporation vs. IAC, 166 SCRA 155). 12. In the adjudication of moral damages, the sentimental value of property, real or personal, may be considered (Art. 2218, NCC). Instances where moral damages may be recovered

13. Moral damages may be recovered in the following and analogous cases: (1) A criminal offense resulting in physical injuries; (2) Quasi-delicts causing physical injuries; (3) Seduction, abduction, rape, or other lascivious acts; (4) Adultery or concubinage; (5) Illegal or arbitrary detention or arrest; (6) Illegal search; (7) Libel, slander or any other form of defamation; (8) Malicious prosecution; (9) Acts mentioned in Article 309; (10) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34, and 35 (Art. 2219, NCC).

Seduction

14. The “seduction” contemplated in Article 2219 of the New Civil Code as one of the cases where moral damages may be recovered, is the crime punished as such in Articles 337 and 338 of the Revised Penal Code. Where a woman, who was an insurance agent and former high school teacher, around 36 years of age and approximately 10 years older than the man, “overwhelmed by her love” for a man approximately 10 years younger than her, had intimate relations with him, because she “wanted to bind” him “by having a fruit of their engagement even before they had the benefit of clergy,” it cannot be said that he is morally guilty of seduction (Hermosisima vs. Court of Appeals, et al., G.R. No. L-14628, September 30, 1960).

Quasi-delict

15. Article 2219(2) specifically allows moral damages to be recovered for quasi-delicts , provided that the act or omission caused physical injuries. There can be no


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recovery of moral damages unless the quasi-delict resulted in physical injury (Quezon City Gov’t., et al. vs. Dacara, G.R. No. 150304, June 15, 2005). 16. Recent case law fixes the amount of moral Rape damages in crime of rape to P75,000.00, in addition to civil indemnity in like amount (People vs. Gregorio Corpuz Y Espiritu, G.R. No. 168101, February 13, 2006, En Banc). 17. The parents of the female seduced, abducted, raped, or abused may also recover moral damages (Art. 2219, NCC). 18. As for moral damages in crimes of defama- Defamation tion, the Supreme Court ratiocinated in this wise: “Every man has a right to build, keep and be favored with a good name. This right is protected by law with the recognition of slander and libel as actionable wrongs, whether as criminal offenses or tortious conduct.” (Brillante vs. Court of Appeals, et al., G.R. No. 118757 & 121571, October 19, 2004). 19. 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. It must be stressed that words which are merely insulting are not actionable 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 (MVRS Publications, et al vs. Islamic Da’wah Council of the Phil, et al., G.R. No. 135306, January 28, 2003).

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20. Libel is defined in Article 353 of the Revised Penal Code as “a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act or 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.” For an imputation then to be libelous, the following requisites must concur: (a) it must be defamatory; (b) it must be malicious; (c) it must be given publicity; and (d) the victim must be identifiable. 21. Any of the imputations covered by Article 353 is defamatory and, under the general rule laid down in Article 354, 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. There is malice when the author of the imputation is prompted by personal ill-will or spite and speaks not in response to duty but merely to injure the reputation of the person who claims to have been defamed. Truth then is not a defense, unless it is shown that the matter charged as libelous was made with good motives and for justifiable ends. 22. Malice is not presumed and must, therefore, be proved, under the following exceptions provided for in Article, 354, viz.: “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.” The privileged character of these communications is not absolute, but merely qualified since they could still be shown to be malicious by proof of actual malice or malice in fact. The burden of proof in this regard is on the plaintiff or the prosecution (del Mundo vs. Court of Appeals, G.R. No. 104576, January 20, 1995). 23. Privileged matters may be absolute or qualified. Absolutely privileged matters are not actionable


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regardless of the existence of malice in fact. In absolutely privileged communications, the mala or bona fides of the author is of no moment as the occasion provides an absolute bar to the action. Examples of these are speeches or debates made by Congressmen or Senators in the Congress or in any of its committees. On the other hand, in qualifiedly or conditionally privileged communications, the freedom from liability for an otherwise defamatory utterance is conditioned on the absence of express malice or malice in fact. The second kind of privilege, in fine, renders the writer or author susceptible to a suit or finding of libel provided the prosecution established the presence of bad faith or malice in fact. To this genre belongs “private communications” and “fair and true report without any comments or remarks” falling under and described as exceptions in Article 354 of the Revised Penal Code (GMA Network, Inc. [formerly known as “Republic Broadcasting System, Inc.”] and Rey Vidal vs. Bustos, et al., G.R. No. 146848, October 17, 2006). 24. Note needs to be taken, however, that “the Doctrine of enumeration under Art. 354 is not an exclusive list of fair comment qualifiedly privileged communications since fair commentaries on matters of public interest are likewise privileged. Fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander. 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 false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts (Borjal vs. Court of Appeals, et al, G.R. No. 126466, January 14, 1999). 25. In New York Times v. Sullivan, the then City Commissioner L. B. Sullivan of Montgomery, Alabama,

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sued New York Times for publishing a paid political advertisement espousing racial equality and describing police atrocities committed against students inside a college campus. As commissioner having charge over police actions Sullivan felt that he was sufficiently identified in the ad as the perpetrator of the outrage; consequently, he sued New York Times on the basis of what he believed were libelous utterances against him. The U.S. Supreme Court speaking through Mr. Justice William J. Brennan Jr. ruled against Sullivan holding that honest criticisms on the conduct of public officials and public figures are insulated from libel judgments. The guarantees of freedom of speech and press prohibit a public official or public figure from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice, i.e., with knowledge that it was false or with reckless disregard of whether it was false or not. The raison d’etre for the New York Times doctrine was that to require critics of official conduct to guarantee the truth of all their factual assertions on pain of libel judgments would lead to self-censorship, since would-be critics would be deterred from voicing out their criticisms even if such were believed to be true, or were in fact true, because of doubt whether it could be proved or because of fear of the expense of having to prove it. To avoid the self-censorship that would necessarily accompany strict liability for erroneous statements, rules governing liability for injury to reputation are required to allow an adequate margin of error by protecting some inaccuracies. It is for the same reason that the New York Times doctrine requires that liability for defamation of a public official or public figure may not be imposed in the absence of proof of “actual malice” on the part of the person making the libelous statement (Borjal vs. Court of Appeals, supra). 26. The doctrine of fair comment presupposes that the publication is based on established facts. If the comments were an expression of opinion based on established facts, it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts. However, where the comments


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were not backed up by facts, the broadcasts are not privileged and remain libelous per se (Filipinas Broadcasting Network vs. Ago Medical and Educ. Center- Bicol Christian College of Medicine, et al., G.R. No. 141994, January 17, 2005). 27. A person who, by his accomplishments, fame, Public figure mode of living, or by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs and his character, has become a ‘public personage.’ He is, in other words, a celebrity. Obviously, to be included in this category are those who have achieved some degree of reputation by appearing before the public, as in the case of an actor, a professional baseball player, a pugilist, or any other entertainer. The list is, however, broader than this. It includes public officers, famous inventors and explorers, war heroes and even ordinary soldiers, infant prodigy, and no less a personage than the Great Exalted Ruler of the lodge. It includes, in short, anyone who has arrived at a position where the public attention is focused upon him as a person. (Ayer Production Pty, Ltd. vs. Capulong, G.R. Nos. 82380 and 82398, 29 April 1988, 160 SCRA 861.) As to them, “the interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound may be assuaged by the balm of a clear conscience. A public official must not be too thin-skinned with reference to comments upon his official acts.” [US vs. Bustos, 37 Phil. 731 (1918)]. 28. 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 privilege against liability, for injury inflicted, even if the falsehood arose in a discussion of public interest (Phil. Journalists, Inc. et al. vs. Thoenen, G.R. No. 143372, December 13, 2005). 29. Publication means “to make public; to make known to people in general; to bring before the public.”

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Specifically put, publication in the law of libel means the making known of the defamatory matter, after it has been written, to some person other than the person of whom it is written. If the statement is sent straight to a person of whom it is written there is no publication of it. The reason for this is that [a] communication of the defamatory matter to the person defamed cannot injure his reputation though it may wound his self-esteem. A man’s reputation is not the good opinion he has of himself, but the estimation in which others hold him (Alonzo vs. Court of Appeals, G.R. No. 110088, February 1, 1995). Group libel

30. In Arcand v. The Evening Call Publishing Com pany , the United States Court of Appeals 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. 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. 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 principle is said to embrace two (2) 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 expression, as well as of the press, effecting a sound compromise between the conflicting fundamental interests involved in libel cases (cf., MVRS


Publications, et al. vs. Islamic Da’wah Council of the Phil, et al. supra).

31. The law against defamation protects one’s interest in acquiring, retaining and enjoying a reputation “as good as one’s character and conduct warrant” in the community. Clearly then, it is the community, not personal standards, which shall be taken into account in evaluating any allegations of libel and any claims for damages on account thereof. So it is that in Bulletin Publishing Corp. v. Noel, [it was] held: The term “community” may of course be drawn as narrowly or as broadly as the user of the term and his purposes may require. The reason why for purposes of the law on libel the more general meaning of community must be adopted in the ascertainment of relevant standards, is rooted deep in our constitutional law. That reason relates to the fundamental public interest in the protection and promotion of free speech and expression, an interest shared by all members of the body politic and territorial community. A newspaper . . . should be free to report on events and developments in which the public has a legitimate interest, wherever they may take place within the nation and as well in the outside world, with minimum fear of being hauled to court by one group or another (however defined in scope) on criminal or civil charges for libel, so long as the newspaper respects and keep within the general community. Any other rule on defamation, in a national community like ours with many, diverse cultural, social, religious an other groupings, is likely to produce an unwholesome “chilling effect” upon the constitutionally protected operations of the press and other instruments of information and education (GMA Network, Inc. [formerly known as “Republic Broadcasting System, Inc.”] and Rey Vidal vs. Bustos, et al.,supra). 32. Openly, publicly and maliciously uttering the following insulting words and statements: “Gago ikaw nga Barangay Captain, montisco, traidor, malugus, Hudas,” which, freely translated, mean: “You are a foolish Barangay Captain, ignoramus, traitor, tyrant, Judas” and other words and statements of similar import entitles the aggrieved party to moral damages. Article 2219, par.

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(7) of the Civil Code allows the recovery of moral damages in case of libel, slander or any other form of defamation. This provision of law establishes the right of an offended party in a case for oral defamation to recover from the guilty party damages for injury to his feelings and reputation. The offended party is likewise allowed to recover punitive or exemplary damages (Occena vs. Icamina, et al., G.R. No. 82146, January 22, 1990). 33. Allegations and averments in a lawyer’s pleadings are absolutely privileged as long as they are relevant or pertinent to the issues (See Montenegro v. Medina, 73 Phil. 602 [1942]). The test to break through the protective barrier of an absolutely privileged communication is not “bona fides” but relevance. Thus, where the allegations made in the complaint for disbarment are not claimed to be irrelevant, the complaint for disbarment is still covered by the privilege and may not be the basis of a damage suit arising from libel (Ponce vs. Legaspi, G.R. No. 79184, May 6, 1992). 34. Pursuant to Article 26, paragraph (4), to the effect that although it may not constitute a criminal offense, “vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition,” can give rise to a cause of action for damages, or consonantly with Article 33 which provides that in case of defamation, a civil complaint for damages, entirely separate and distinct from the criminal case, may be brought by the injured party. Both civil actions are based on tort liability under common law and require the plaintiff to establish that he has suffered personal damage or injury as a direct consequence of the defendant’s wrongful conduct. In fine, it must be shown that the act complained of is vexatious or defamatory of, and as it pertains to, the claimant, thereby humiliating or besmirching the latter’s dignity and honor (MVRS Publications, et al vs. Islamic Da’wah Council of the Phil, et al. supra). Malicious prosecution

35. It is a settled principle that “[w]hen the action is filed in good faith there should be no penalty on the right to litigate. (Espiritu v. Court of Appeals, 137 SCRA 50).” To support, thus, an action for malicious


prosecution, the plaintiff must prove the fact of prosecution, that the defendant was himself the prosecutor or that he instigated its commencement; that it finally terminated in his acquittal; that in bringing it the prosecutor acted without probable cause, and that he was actuated by legal malice, that is, by improper and sinister motives (Lagman, et al. vs. Intermediate Appellate Court, et al., G.R. No. L-72281, October 28, 1998). The statutory recognition of an action for damages based on malicious prosecution (false accusation or denuncia falsa) is found in Article 2219(8) of the Civil Code which allows recovery of moral damages for malicious prosecution. Article 21 and 2176 of the same Code may also be invoked to justify the action (supra). 36. 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 (Eustace v. Dechter, 28 Cal. App. 2d. 706, 83 P. 2d. 525). 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 (Hicks v. Brantley, 29 S.E. 459, 102 Ga. 264., Eggett v. Allen, 96 N.W. 803 119 Wis. 625).” In the Philippines, it 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. The gist of the action is the putting of legal process in force, regularly, for the mere purpose of vexation or injury’’ (Drilon vs. Court of Appeals, et al., G.R. No. 107019, March 20, 1997). 37. 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.” To constitute “malicious prosecution,” there

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must be proof that the prosecution was prompted by a sinister design to vex or 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 (Yasona vs. Ramos, et al., G.R. No. 156339, October 6, 2004). 38. It may be asked, who then may be held liable for malicious prosecution? Under American law, the defendant in the action for malicious prosecution may be the the prosecutor, or the one who instigated its commencement. Malicious prosecution may either be civil or criminal. But both classes of cases require substantially the same essentials. Malice is essential to the maintenance of an action for malicious prosecution and not merely to the recover of exemplary damages. 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. (Please see Rehabilitation Finance Corp. v. Koh, L-15512, Feb. 28, 1962, 4 SCRA 535, 540).” 39. As thus defined, the fact of termination of the criminal prosecution, civil suit or legal proceeding maliciously filed and without probable cause, should precede the complaint for malicious prosecution (Andres Lao vs. Court of Appeals, et al., G.R. No. 47013, 60647 & 60958-59, February 17, 2000). 40. Malice is essential to the maintenance of an action for malicious prosecution and not merely to the recovery of exemplary damages. 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. 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 (or in this case, the wrongdoing) for which he was prosecuted. Where there is probable cause, the charge of malicious prosecution is then defeated, regardless of considerations of malice (cf., Ponce vs. Legaspi, et al., G.R. No. 79184, May 6, 1992). 41. The elements of want of probable cause and malice must simultaneously exist; otherwise, the presence of probable cause signifies, as a legal consequence, the absence of malice. On these, 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 knowing that the charge was false and baseless to entitle the victim to damages (Martires vs. Cokieng, et al., G.R. No. 150192, February 17, 2005). 42. Generally, malicious prosecution refers to unfounded criminal actions and has been expanded to include unfounded civil suits just to vex and humiliate the defendant despite the absence of a cause of action or probable cause (Equitable Banking Corporation v. Intermediate Appellate Court, 133 SCRA 13B [1984]). The foundation of an action for malicious prosecution is an original proceeding, judicial in character. A disbarment proceeding being judicial in character may therefore be the basis for a subsequent action for malicious prosecution (Ponce vs. Legaspi, et al., G.R. No. 79184, May 6, 1992). 43. “To maintain an action for damages based on malicious prosecution, three elements must be present: First, the fact of the prosecution and the further fact that the defendant was himself the prosecutor, and that the action was finally terminated with an acquittal; second, that in bringing the action, the prosecution acted without probable cause; and third, the prosecutor was actuated or impelled by legal malice” (Ferrer vs. Vergara, 52 O.G. 291). 44. Where one is a mere witness, he cannot be held liable for malicious prosecution (Lao vs. Court of Appeals, G.R. No. 82808, July 11, 1991).

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45. To constitute malicious prosecution, there must be proof that the prosecution was prompted by a design to vex and humiliate a person and that it was initiated deliberately by the defendant knowing that the charges were false and groundless [Manila Gas Corporation v. CA, G.R. No. L-44190, October 30, 1980, 100 SCRA 602]. The filing of a suit, by itself, does not render a person liable for malicious prosecution. Neither does the mere dismissal by the fiscal of the criminal complaint a ground for an award of damages for malicious prosecution if there is no competent evidence to show that the complainant had acted in bad faith (Globe Mackay Cable and Radio Corp., et al. vs. Court of Appeals, et al., G.R. No. 81262, August 25, 1989). Moreover, the adverse result of an action does not per se make the action wrongful and subject the action to damages, for the law could not have meant to impose a penalty on the right to litigate. If damages result from a person’s exercise of a right, it is damnum absque injuria. (Saber vs. Court of Appeals, et al., G.R. No. 132981, August 31, 2004). 46. “It is the general rule, in the absence of any statutory provision to the contrary, that advice of counsel is a complete defense to an action for malicious prosecution where it appears that the prosecution was instituted in reliance in good faith on such advice, given after a full and fair statement of all the facts to the attorney. This is true whether the advice was sought in respect of a civil action or a criminal prosecution. Moreover, it is immaterial that the attorney’s advice was sound or erroneous: if the defense is worth anything to a party it must be available when through error of law, as well as of fact, his action has failed; the lawyer’s error will not deprive his client of the defense.” (34 Am. Jur. pp. 747-748). But in a case where “it appears that aside from the case at bar, petitioner, with blind persistence, had filed case after case and complaint after complaint against Aurelia Altea and her common-law husband and not a single case prospered, moral damages was validly awarded (Hawpia vs. Court of Appeals, et al., G.R. No. L-20047, June 30, 1967). 47. “The grant of moral damages is not subject to the whims and caprices of judges or courts. The court’s


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discretion in granting or refusing it is governed by reason and justice. In order that a person may be made liable to the payment of moral damages, the law requires that his act be wrongful. The adverse result of an action does not per se make the act wrongful and subject the actor to the payment of moral damages. The law could not have meant to impose a penalty on the right to litigate; such right is so precious that moral damages may not be charged on those who may exercise it erroneously. For these the law taxes costs’’ (Barreto vs. Arevalo, et al. No. L-7748, Aug. 27, 1956, 52 O.G., No. 13, p. 5818). 48. As for the award of damages under Articles Article 19, 20 19, 20 and 21 of the Civil Code, it was held that “[t]he and 21 elements of abuse of right under Article 191 are the following: (1) the existence of a legal right or duty, (2) which is exercised in bad faith, and (3) for the sole intent of prejudicing or injuring another. Article 20 speaks of the general sanction for all other provisions of law which do not especially provide for their own sanction; while 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, and (3) and it is done with intent to injure. Verily then, malice or bad faith is at the core of Articles 19, 20, and 21.” (Albenson Enterprises Corp. v. Court of Appeals, 217 SCRA 16, 25 [1993]). 49. The report of the Code Commission states thus — “. . . 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 material 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 morals, good

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customs or public policy shall compensate the latter for the damage.’’’ (Patricio vs. Leviste, G.R. No. 51832, April 26, 1989). 50. The act of hitting a person on the face is contrary to morals and good customs (Patricio vs. Leviste, supra). 51. Indeed, bigamy is not one of those specifically mentioned in Article 2219 of the Civil Code in which the offender may be ordered to pay moral damages to the private complainant/offended party. Nevertheless, the petitioner is liable to the private complainant for moral damages under Article 2219 in relation to Articles 19, 20 and 21 of the Civil Code (Manuel vs. People, G.R. No. 165842, November 29, 2005). Breach of promise to marry

52. 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, and that he had, in reality, no intention 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, the 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 thereafter. It is essential, however, that such injury should have been committed in a manner contrary to morals, good customs or public policy (Baksh vs. Court of Appeals, supra). 53. Where it was that there was “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 cherished possession of every


single Filipina, not because of lust but because of moral seduction — [this is the kind of action] illustrated by the Code Commission in its example earlier adverted to. The actor could not be held liable for criminal seduction punished under either Article 337 or Article 338 of the Revised Penal Code because the lady was above eighteen (18) years of age at the time of the seduction. Prior decisions of this Court clearly suggest that Article 21 may be applied-in a breach of promise to marry where the woman is a victim of moral seduction (Baksh vs. Court of Appeals, supra). 54. Willful injury to property may be a legal ground for awarding moral damages if the court should find that, under the circumstances, such damages are justly due. The same rule applies to breaches of contract where the defendant acted fraudulently or in bad faith (Art. 2220, NCC). 55. Malice or bad faith implies a conscious and intentional design to do a wrongful act for a dishonest purpose or moral obliquity; it is different from the negative idea of negligence in that malice or bad faith contemplates a state of mind affirmatively operating with furtive design or ill will (See Luzon Brokerage, Co., Inc. vs. Maritime Building, Co., Inc., 43 SCRA 93; also Black’s Law Dictionary.) . 56. With respect to the award of moral damages, Culpa conthe general rule is that said damages are not recoverable tractual in culpa contractual except when the presence of bad faith cases was proven (Trans World Air Lines v. Court of Appeals, 165 SCRA 143 [1988]). However, in breach of contract of carriage, moral damages may be recovered when it results in the death of a passenger (Philippine Rabbit Bus Lines, Inc. v. Esguerra, 117 SCRA 741 [1982]; Vasquez v. Court of Appeals, 138 SCRA 553 [1985]). In culpa contractual or breach of contract, moral damages may be recovered when the defendant acted in bad faith or was guilty of gross negligence (amounting to bad faith) or in wanton disregard of contractual obligations and, as in this case, when the act of breach of contract itself constitutes the tort that results in physical injuries. By special rule in Article 1764 in relation to Article 2206 of the Civil

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Code, moral damages may also be awarded in case the death of a passenger results from a breach of carriage (Victory Liner vs. Gammad, et al., supra). 57. Although the rule is that moral damages predicated upon a breach of contract of carriage may only be recoverable in instances where the mishap results in the death of a passenger, or where the carrier is guilty of fraud or bad faith, there are situations where the negligence of the carrier is so gross and reckless as to virtually amount to bad faith, in which case, the passenger likewise becomes entitled to recover moral damages. (Singson vs. Court of Appeals, et al., G.R. No. 119995, November 18, 1997) Bad faith, in this context, includes gross, but not simple, negligence (FEBTC vs. Court of Appeals, et al., G.R. No. 108164, February 23, 1995). 58. In view of Art. 2220 of the Civil Code, it has been held that “in culpa contractual or breach of contract, moral damages may be recovered when the defendant acted in bad faith or was guilty of gross negligence (amounting to bad faith) or in wanton disregard of his contractual obligation.” Since the law presumes good faith, the person claiming moral damages must prove bad faith or ill motive by clear and convincing evidence (MOF Company vs. Enriquez, G.R. No. 149280, May 9, 2002). 59. In the cases of Lopez v. Pan American World Airways, Zulueta v. Pan American World Airways, Inc. and Ortigas Jr. v. Lufthansa German Airlines , the Court ruled that . . . [W]hen it comes to contracts of common carriage, inattention and lack of care on the part of the carrier resulting in the failure of the passenger to be accommodated in the class contracted for amounts to bad faith or fraud which entitles the passenger to the award of moral damages in accordance with Article 2220 of the Civil Code. In Lopez despite sufficient time — one month — to inform the passengers of what had happened to their booking, the airline agent intentionally withheld that information from them. In Zulueta, the passenger was deliberately off-loaded after being gravely insulted during an altercation. And in Ortigas, the passenger was intentionally downgraded in favor of a European. But


where there is no showing that the breach of contract was done with the same entrepreneurial motive or selfinterest as in Lopez or with ill will as in Zulueta and Ortigas, the carrier may not be held liable for moral damages. Good faith is presumed, while bad faith is a matter of fact that needs to be proved by the party alleging it. Article 2219 of the Civil Code enumerates the instances in which moral damages may be awarded. In a breach of contract, such damages are not awarded if the defendant is not shown to have acted fraudulently or with malice or bad faith (Savellano et al. vs. Northwest Airlines, G.R. No. 151783, July 8, 2003). 60. Moral damages against an airline company was held proper in a case where a passenger “had repeatedly secured confirmations of his PR 311 flight on November 24, 1981 — initially from CAL and subsequently from the PAL office in Hong Kong. The status of this flight was marked “OK” on a validating sticker placed on his ticket. That sticker also contained the entry “RMN6V.” Ms Chan explicitly acknowledged that such entry was a computer reference that meant that respondent’s name had been entered in PAL’s computer. Since the status of the passenger on Flight PR 311 was “OK,” as a matter of right testified to by PAL’s witness, he should have been automatically transferred to and allowed to board Flight 307 the following day. Clearly resulting from negligence on the part of PAL was its claim that his name was not included in its list of passengers for the November 24, 1981 PR 311 flight and, consequently, in the list of the replacement flight PR 307. Since he had secured confirmation of his flight — not only once, but twice — by personally going to the carrier’s offices where he was consistently assured of a seat thereon — PAL’s negligence was so gross and reckless that it amounted to bad faith (China Airlines vs. Chiok, G.R. No. 152122, July 30, 2003). 61. Not every act of dishonor of credit card will entitle one to moral damages. Where the suspension is brought about by the non-payment of one’s outstanding account, the dishonor is held to be without malice and is not in abuse of right (BPI Express Card Corp vs. Court of

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Appeals, et al., supra., and Equitable Banking Corp. vs. Calderon, G.R. No. 156168, December 14, 2004).

62. For the wanton and reckless failure and neglect to timely check and remedy the video tape recorder such that no pictures registered after the few snatches of the bride, the Supreme Court ruled moral damages are due. The failure to record on videotape the wedding celebration constitutes malicious breach of contract as well as gross negligence (Herbosa, et al. vs. Court of Ap peals, et al., G.R. No. 119086 & 119087, January 25, 2002). “In our society, the importance of a wedding ceremony cannot be underestimated as it is the matrix of the family and, therefore, an occasion worth reliving in the succeeding years. Considering the sentimental value of the tapes and the fact that the event therein recorded — a wedding which in our culture is a significant milestone to be cherished and remembered — could no longer be reenacted and was lost forever,” the award of moral damages is in order (cf., Go v. Court of Appeals, 339 Phil. 136, 138-139 (1997). 63. So in breach of contract, the damages recoverable maybe (a) Indemnity for Death. Art. 1764 of the Civil Code, in relation to Art. 2206 thereof, provides for the payment of indemnity for the death of passengers caused by the breach of contract of carriage by a common carrier. Initially fixed in Art. 2206 at P3,000.00, the amount of the said indemnity for death has through the years been gradually increased in view of the declining value of the peso. It is presently fixed at P50,000.00; (b) Actual Damages. Art. 2199 provides that “except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved.”; (c) Moral Damages. Under Art. 2206, the “spouse, legitimate and illegitimate descendants and ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the deceased.”; (d) Exemplary Damages. Art. 2232 provides that “in contracts and quasicontracts, the court may award exemplary damages if the defendant acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner.”; (e) Attorney’s Fees.


Pursuant to Art. 2208, attorney’s fees may be recovered when, as in the instant case, exemplary damages are awarded; (f) Compensation for Loss of Earning Capacity. Art. 1764 of the Civil Code, in relation to Art. 2206 thereof, provides that in addition to the indemnity for death arising from the breach of contract of carriage by a common carrier, the “defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall be paid to the heirs of the latter.” (Fortune Express vs. Court of Appeals, G.R. No. 119756, March 18, 1999). 64. Note, however, that a contractual breach may come within the purview of Article 21 in relation to Article 2217 and Article 2219 of the Civil Code such as in American Express International, Inc., vs. Intermediate Appellate Court (167 SCRA 209) and Bank of Philippine Islands vs. Intermediate Appellate Court (206 SCRA 408). But “Article 21 of the Code, it should be observed, contemplates 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 obligation is so deliberate as to approximate a degree of misconduct certainly no less worse than fraud or bad faith.” (FEBTC vs. Court of Appeals, et al., supra) 65. The term “analogous cases,” referred to in Analogous Article 2219, following the ejusdem generis rule, must be cases held similar to those expressly enumerated by the law. (Expertravel & Tours, Court of Appeals, et al., G.R. No. 130030, June 25, 1999). 66. The writ of attachment based on a false affidavit was improperly or irregularly issued. An action to recover damages from the attachment plaintiff, for the wrongful issuance and levy of attachment is identical with or analogous to the ordinary action for malicious prosecution (Lazatin vs. Twaño, L-12736, July 31, 1961, 2 SCRA 842). In view thereof, moral damages may be recovered by defendant [Art. 2219 (B), Civil Code] [PCIB vs. Intermediate Appellate Court, G.R. No. 73610, April 19, 1991].

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67. Moral damages is also recoverable in illegal termination cases. Where “complainants’ dismissal was carried out swiftly and surreptitiously to the detriment and prejudice of complainants’ tenurial rights, such act smacks of highhandedness and deserves no place in a school that teaches respect and instills moral values and human rights to the future citizens of this country.” (Colegio del Sto Nino, et al. vs. NLRC, et al, G.R. No. 96301, May 28, 1991). Moral damages are recoverable only where the dismissal of the employee was attended by bad faith or fraud, or constituted an act oppressive to labor, or was done in a manner contrary to morals, good customs or public policy (Spartan Security & Detective Agency vs. NLRC, et al., G.R. No. 90693, September 3, 1992). 68. The crime of kidnapping and failure to return a minor under Article 270 of the Revised Penal Code is clearly analogous to illegal and arbitrary detention or arrest. The award of moral damages is justified (cf., People vs. Bernardo, G.R. No. 144316, March 11, 2002). 69. In one case, the Supreme Court also sustained the award of moral damages in favor of one who suffered a permanent scar at her forehead and the loss of her right eye which undoubtedly gave her mental anguish, wounded feelings and shock. The psychological effect as regards the scar on her forehead and her false eye must have devastated her considering that women in general are fastidious on how they look. More important, however, was the loss of vision of her right eye which was severely injured as a result of the accident. Since the accident, the plaintiff in the case (Linda Navarette) had to contend with the loss of her eyesight on her right eye which necessarily hampers her not only physically but also professionally for the rest of her life. Before the accident, Linda Navarette who is a home economist by profession was doing well in her career. A graduate of the University of the Philippines with the degree of Home Economics, she is the Assistant-Vice President as well as Resident Manager of Club Solviento receiving a gross income of P10,000.00 a month. Simultaneously with her work at Club Solviento, she served as Food Consultant of Food City where she received a


monthly salary of P7,000.00. She, however, had to give up her consultancy job after the accident not only because of her prolonged absences but because of the physical handicap she suffered. Nevertheless, when Linda claimed for moral damages for the alleged loss of her boyfriend by reason of the accident, the Supreme Court denied the claim. The High Court ruled: “No doubt, the loss of her boyfriend after the accident added to her mental and emotional sufferings and psychologically affected and disturbed her. [But] there is no clear evidence on record to show that her boyfriend left her after the accident due to her physical injuries. He may have left her even if she did not suffer the slightest injury. The reasons for the breakup of a courtship are too many and too complicated such that they should not form the basis of damages arising from a vehicular accident. Moreover, granting that her boyfriend left her due to her physical injuries, we still find no legal basis for the award of moral damages in favor of Navarette because of the loss of a boyfriend. Article 2719 of the New Civil Code quoted earlier enumerates cases wherein moral damages may be granted. Loss of a boyfriend as a result of physical injuries suffered after an accident is not one of them. Neither can it be categorized as an analogous case” (Mayo vs. People, G.R. No. 91201, December 5, 1991). 70. There, too, is a time-honored rule that an action for breach of promise to marry has no standing in the civil law, apart from the right to recover money or property advanced by the plaintiff upon the faith of such promise. (see Hermosisima vs. Court of Appeals, 109 Phil. 629 [1960]). Generally, therefore, a breach of promise to marry per se is not actionable. The exception is where the plaintiff has actually incurred expenses for the wedding and the necessary incidents thereof. Also, where the acts of one in forcibly abducting another and having carnal knowledge with her against her will, and thereafter promising to marry her in order to escape criminal liability, only to thereafter renege on such promise after cohabiting with her for twenty-one days, irremissibly

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constitutes acts contrary to morals and good customs. These are grossly insensate and reprehensible transgressions which indisputably warrant and abundantly justify the award of moral and exemplary damages, pursuant to Article 21, in relation to paragraphs 3 and 10, Article 2219, and Articles 2229 and 2234 of the Civil Code (Bunag, Jr. vs. Court of Appeals, G.R. No. 101749, July 10, 1992). 71. Also, moral damages are not to be awarded in actions for nullity of marriage on ground of psychological incapacity. In Buenaventura vs. Buenaventura, G.R. No. 127358, March 31, 2005 , it was held that it is contradictory to characterize acts as a product of psychological incapacity, and hence beyond the control of the party because of an innate inability, while at the same time considering the same set of acts as willful. By declaring a person as psychologically incapacitated, the possibility of awarding moral damages on the same set of facts was negated. The award of moral damages should be predicated, not on the mere act of entering into the marriage, but on specific evidence that it was done deliberately and with malice by a party who had knowledge of his or her disability and yet willfully concealed the same. For the same reason, since psychological incapacity means that one is truly incognitive of the basic marital covenants that one must assume and discharge as a consequence of marriage, it removes the basis for the contention that the one purposely deceived the other. Moral dam72. In Mambulao Lumber Co. v. PNB , 130 Phil 366 ages in favor [1968] , it was ruled that a corporation may recover moral of corporadamages if it “has a good reputation that is debased, tion, general resulting in social humiliation.” rule

But in ABS-CBN Broadcasting Corporation vs. Court of Appeals, et al., G.R. No. 128690, January 21, 1999, the said pronouncement was debunked as a mere obiter dictum. Citing Prime White Cement Corp. v. Intermediate Ap pellate Court, 220 SCRA 103, 113-114 [1993]; LBC Express Inc. v. Court of Appeals, 236 SCRA 602, 607 [1994]; Acme Shoe, Rubber and Plastic Corp. v. Court of Appeals, 260 SCRA 714, 722 [1996] , it was ruled that a corporation cannot be awarded moral damages because “being an artificial per-


son and having existence only in legal contemplation, it has no feelings, no emotions, no senses. It cannot, therefore, experience physical suffering and mental anguish which can be experienced only by one having a nervous system.” A juridical person is generally not entitled to moral damages because, unlike a natural person, it cannot experience physical suffering or such sentiments as wounded feelings, serious anxiety, mental anguish or moral shock (People v. Manero, Jr., G.R. Nos. 86883-85, 29 January 1993, 218 SCRA 85). 73. However, where the claim for moral damages Exception falls under item 7 of Article 2219 of the Civil Code, moral damages may be recovered. This provision expressly authorizes the recovery of moral damages in cases of libel, slander or any other form of defamation. Article 2219(7) does not qualify whether the plaintiff is a natural or juridical person. Therefore, a juridical person such as a corporation can validly complain for libel or any other form of defamation and claim for moral damages. (Filipinas Broadcasting Network vs. Ago Medical and Educ. Center-Bicol Christian College of Medicine, et al., supra)

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CHAPTER 4 NOMINAL DAMAGES Nature and concept

1. Under Article 2221 of the Civil Code, “nominal damages are adjudicated in order that a right of the plaintiff, which has been violated or invaded by the defendant, may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him.” 2. The court may award nominal damages in every obligation arising from any source enumerated in Article 1157, or in every case where any property right has been invaded (Article 2222, Civil Code of the Philip pines). 3. Nominal damages are damages in name only and not in fact. Where these are allowed, they are not treated as an equivalent of a wrong inflicted but simply in recognition of the existence of a technical injury (PNOC Shipping and Transport Corp. vs. Court of Appeals, et al., G.R. No. 107518, October 8, 1998). 4. Articles 2221 and 2222 of the Civil Code make it clear that nominal damages are not intended for indemnification of loss suffered but for the vindication or recognition of a right violated or invaded. They are recoverable where some injury has been done but the amount of which the evidence fails to show, the assessment of damages being left to the discretion of the court according to the circumstances of the case (Saludo, Jr., et al. vs. Court of Appeals, et al., G.R. No. 95536, March 23, 1992). 5. In the absence of competent proof on the actual damage suffered, private respondent is “entitled to nominal damages — which, as the law says, is adjudi168

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cated in order that a right of the plaintiff, which has been violated or invaded by the defendant, may be vindicated and recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered.” The amount of P50,000.00 was considered just and reasonable under the circumstances (Lufthansa German Airlines vs. Court of Appeals, et al., G.R. No. 108997, April 21, 1995). 6. It is an established rule that nominal damages cannot co-exist with compensatory damages (Medina, et al. vs. Cresencia, 99 Phil. 506). This is because the two stand on totally different jural foundations. Nominal damages are awarded not to indemnify one for his loss but to recognize a right that has been violated, whereas compensatory damages are awarded for the precise purpose of reparation and indemnification. 7. In cases involving dismissals for cause but without observance of the twin requirements of notice and hearing, it was held that the better rule is to abandon the Serrano doctrine and to follow Wenphil by holding that the dismissal was for just cause but imposing sanctions on the employer. Such sanctions, however, must be stiffer than that imposed in Wenphil. By doing so, the Court would be able to achieve a fair result by dispensing justice not just to employees, but to employers as well. Hence, where the dismissal is for a just cause, as in the instant case, the lack of statutory due process should not nullify the dismissal, or render it illegal, or ineffectual. However, the employer should indemnify the employee for the violation of his statutory rights, as ruled in Reta v. National Labor Relations Commission. The indemnity to be imposed should be stiffer to discourage the abhorrent practice of “dismiss now, pay later,” which was sought to be deterred in the Serrano ruling. The sanction should be in the nature of indemnification or penalty and should depend on the facts of each case, taking into special consideration the gravity of the due process violation of the employer. Under the Civil Code, nominal damages is adjudicated in order that a right of the plaintiff, which has been violated or

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invaded by the defendant, may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him (Agabon vs. NLRC, et al., G.R. No. 158693, November 17, 2004). 8. In fixing the amount of nominal damages to be awarded, the circumstances of each case should thus be taken into account, such as, to exemplify, the (a) length of service or employment of the dismissed employee; (b) his salary or compensation at the time of the termination of employment vis-a-vis the capability of the employer to pay; (c) question of whether the employer has deliberately violated the requirements for termination of employment or has attempted to comply, at least substantially, therewith; and/or (d) reasons for the termination of employment (Dissent, Justice Vitug, Serrano vs. NLRC, et al., G.R. No. 117040, January 27, 2000). Case law presently fixes nominal damages at P30,000.00 (Chua vs. NLRC, et al., G.R. No. 146780, March 11, 2005; Jaka Food Processing Corp vs. Pacot, et al., G.R. No. 151378, March 28, 2005; PT & T Corp vs. NLRC, G.R. No. 147002, April 15, 2005; Philippine Pizza Inc. vs. Bungabong,G.R. No. 154315, May 9, 2005; Amadeo Fishing Corp. et al. vs. Nierra, et al., G.R. No. 163099, October 4, 2005), although in San Miguel Corporation vs. Aballa, et al., G.R. No. 149011, June 28, 2005 , the Supreme Court ordered payment of nominal damages of P50,000.00 to each of the employees. 9. Accordingly, (1) if the dismissal is based on a just cause under Article 282 but the employer failed to comply with the notice requirement, the sanction to be imposed upon him should be tempered because the dismissal process was, in effect, initiated by an act imputable to the employee. In these instances, nominal damages is invariably fixed at P30,000.00; (2) if the dismissal is based on an authorized cause under Article 283 but the employer failed to comply with the notice requirement, the sanction should be stiffer because the dismissal process was initiated by the employer ’s exercise of his management prerogative. The nominal damages is at P50,000.00 (cf., Jaka Food Processing Corporation v. Pacot, G.R. No. 151378, March 28, 2005, 454 SCRA 119). 10. Where an employer failed to serve a written notice on the worker at least one (1) month before the

CHAPTER 4 NOMINAL DAMAGES

intended date of retrenchment, the Supreme Court awarded the amount equivalent to one (1) month salary of P6,500.00 as nominal damages to deter employers from future violations of the statutory due process rights of employees [Clarion Printing House, Inc. et al. vs. NLRC (Third Division) et al., G.R. No. 148372, June 27, 2005]. 11. The bank should not have allowed complete strangers to take possession of the owner’s duplicate certificate even if the purpose is merely for photocopying for a danger of losing the same is more than imminent. They should be aware of the conclusive presumption in Section 53. Such act constitutes manifest negligence on the part of the bank which would necessarily hold it liable for damages under Article 1170 and other relevant provisions of the Civil Code. In the absence of evidence, the damages that may be awarded may be in the form of nominal damages (Heirs of Eduardo Manlapat vs. Court of Appeals, et al., G.R. No. 125585, June 8, 2005). 12. Nominal damages are adjudicated in order that a right of the plaintiff, which has been violated or invaded by the defendant, may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him. Where no right of petitioner was violated or invaded, nominal damages cannot be awarded (cf., Solid Homes, Inc. vs. Court of Appeals, et al., G.R. No. 117501, July 8, 1997). 13. Also, “if no damages have actually occurred there can be none to repair and the doctrine of nominal damages is not applicable. Thus it has been often held by the supreme court of Spain that a mere noncompliance with the obligations of a contract is not sufficient to sustain a judgment for damages. It must be shown that damages actually existed (Decision of February 10, 1904.) (Algarra vs. Sandejas, G.R. No. 8385, March 24, 1914). 14. The adjudication of nominal damages shall preclude further contest upon the right involved and all accessory questions, as between the parties to the suit, or their respective heirs and assigns (Art. 2223, Civil Code).

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CHAPTER 5 TEMPERATE DAMAGES Nature and concept

1. Temperate or moderate damages, which are more than nominal but less than compensatory damages, may be recovered when the court finds that some pecuniary loss has been suffered but its amount can not, from the nature of the case, be proved with certainty (Art. 2224, Civil Code). 2. The Code Commission, in explaining the concept of temperate damages under Article 2224, makes the following comment: “In some States of the American Union, temperate damages are allowed. There are cases where from the nature of the case, definite proof of pecuniary loss cannot be offered, although the court is convinced that there has been such loss. For instance, injury to ones commercial credit or to the goodwill of a business firm is often hard to show with certainty in terms of money. Should damages be denied for that reason? The judge should be empowered to calculate moderate damages in such cases, rather than that the plaintiff should suffer, without redress from the defendant’s wrongful act (Premiere Devt Bank vs. Court of Appeals, et al., G.R. No. 159352, April 14, 2004). 3. Temperate damages may be allowed in cases where from the nature of the case, definite proof of pecuniary loss cannot be adduced, although the court is convinced that there has been such loss (MBTC vs. Court of Appeals, et al., G.R. No. 112576, October 26, 1994). 4. Thus, in cases where the amount of pecuniary losses could, by their very nature, be established with certainty, it is error to award temperate damages. Where the trial court found that plaintiff suffered dam172

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ages in the form of wages for the hired workers for 22 December 1990 and expenses incurred during the extra two (2) days of the wake but the record does not show that plaintiff presented proof of the actual amount of expenses he incurred, the trial court erred in awarding temperate damages instead (Barzaga vs. Court of Appeals, et al., G.R. No. 115129, February 12, 1997). 5. Damages cannot be both actual and temperate. Temperate or moderate damages are allowed because, while some pecuniary loss has been suffered, from the nature of the case its amount cannot be proved with certainty (People vs. Padlan, et al., G.R. No. 111263, May 21, 1998). 6. But in one case, the Supreme Court allowed both actual and temperate damages to co-exist. It said: “Our rules on actual or compensatory damages generally assume that at the time of litigation, the injury suffered as a consequence of an act of negligence has been completed and that the cost can be liquidated. However, these provisions neglect to take into account those situations, as in this case, where the resulting injury might be continuing and possible future complications directly arising from the injury, while certain to occur, are difficult to predict. In these cases, the amount of damages which should be awarded, if they are to adequately and correctly respond to the injury caused, should be one which compensates for pecuniary loss incurred and proved, up to the time of trial; and one which would meet pecuniary loss certain to be suffered but which could not, from the nature of the case, be made with certainty. In other words, temperate damages can and should be awarded on top of actual or compensatory damages in instances where the injury is chronic and continuing. And because of the unique nature of such cases, no incompatibility arises when both actual and temperate damages are provided for. The reason is that these damages cover two distinct phases. As it would not be equitable — and certainly not in the best interests of the administration of justice — for the victim in such cases to constantly come before the courts and invoke their aid in seeking adjustments to the compensatory

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damages previously awarded — temperate damages are appropriate. The amount given as temperate damages, though to a certain extent speculative, should take into account the cost of proper care (Ramos, et al. vs. Court of Appeals, et al., G.R. No. 124354, December 29, 1999). Instances where temperate damages are adjudicated

7. The trial court awarded P20,000 as actual damages, not supported by evidence on record. Actual damages can be given only to claims which are duly supported by receipts. Nonetheless, under Article 2224 in lieu of actual damages, temperate damages may be recovered as it has been shown that the victim’s family suffered some pecuniary loss although the amount cannot be proved with certainty. For this reason, the P20,000 award shall be for temperate damages. Further, conformably with prevailing jurisprudence, moral damages is increased to P50,000. (People vs. Orbes, G.R. No. 132743, November 22, 2001). 8. Where the Court finds that some pecuniary loss has been incurred but the amount cannot be proved with certainty, such as for medical services and the wake, temperate damages are appropriately given. Thus, in People v. Solamillo, which involved robo con homicidio , the computation in People v. Abrazaldo, fixing temperate damages at P25,000.00, which is half the amount of the indemnity ex delicto , was affirmed (People vs. Abes, et al., G.R. No. 138937, January 20, 2004). 9. Temperate damages may be awarded if there is no evidence of burial and funeral expenses. This is in lieu of actual damages as it would be unfair for the victim’s heirs to get nothing, despite the death of their kin, for the reason alone that they cannot produce any receipts. It was also ruled that temperate and actual damages are mutually exclusive in that both may not be awarded at the same time, hence, no temperate damages may be granted if actual damages have already been granted (People vs. Villanueva, G.R. No. 139177, Au gust 11, 2003). 10. Temperate or moderate damages may only be given if the court finds that some pecuniary loss has been suffered but that its amount cannot, from the nature of the case, be proved with certainty. If the factual

CHAPTER 5 TEMPERATE DAMAGES

findings of the court are that there is failure to establish such pecuniary loss or, if proved, cannot from their nature be precisely quantified, temperate or moderate damages may not be awarded and the result comes down to only a possible award of nominal damages (PT & T vs. Court of Appeals, G.R. No. 139268, September 3, 2002). 11. It is wrong to award, along with nominal damages, temperate or moderate damages. The two awards are incompatible and cannot be granted concurrently. Nominal damages are given in order that a right of the plaintiff, which has been violated or invaded by the defendant, may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him (Art. 2221, New Civil Code; Manila Banking Corp. vs. Intermediate Appellate Court, 131 SCRA 271). Temperate or moderate damages, which are more than nominal but less than compensatory damages, on the other hand, may be recovered when the court finds that some pecuniary loss has been suffered but its amount cannot, from the nature of the case, be proved with reasonable certainty (Art. 2224, New Civil Code) (Citytrust Banking Corporation vs. Intermediate Appellate Court, et al., G.R. No. 84281, May 27, 1994). 12. Temperate damages must be reasonable under the circumstances (Art. 2225, Civil Code).

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CHAPTER 6 LIQUIDATED DAMAGES Liquidated damages, defined

1. Liquidated damages are those that the parties agree to be paid in case of a breach. As worded, the amount agreed upon answers for damages suffered by the owner due to delays in the completion of the project. Under Philippine laws, these damages take the nature of penalties. A penal clause is an accessory undertaking to assume greater liability in case of a breach. It is attached to an obligation in order to ensure performance (HL Carlos Construction vs. Marina Properties Corp., G.R. No. 147614, January 29, 2004).

Nature and concept

2. In case liquidated damages have been agreed upon, no proof of loss is necessary in order that such liquidated damages may be recovered (Scott Consultants & Resource Devt Corp., Inc. vs. Court of Appeals, et al., G.R. No. 112916, March 16, 1995). The stipulation for liquidated damages is intended to obviate controversy on the amount of damages (Napocor vs. National Merchandising Corporation, et al., G.R. No. L-33819 & L-33897, October 23, 1982). 3. Attorney’s fee is in the concept of actual damages (Fores vs. Miranda, 105 Phil., 266; 57 Off. Gaz., [44] 7938), except that when it is stipulated and therefore in the form of liquidated damages no proof of pecuniary loss is required (Article 2216) (Santiago vs. Dimayuga, G.R. No. L-17883, December 30, 1961). 4. “The judge shall equitably reduce the penalty when the principal obligation has been partly or irregularly complied with by the debtor. Even if there has been no performance, the penalty may also be reduced by the courts if it is iniquitous or unconscionable.” (Art. 1229, Civil Code). 176

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5. Liquidated damages, whether intended as an indemnity or a penalty, shall be equitably reduced if they are iniquitous or unconscionable (Art. 2227, Civil Code). 6. Liquidated damages are identical to penalty insofar as legal results are concerned. Intended to ensure the performance of the principal obligation, such damages are accessory and subsidiary obligations. The nullity of the principal obligation carried with it the nullity of the accessory obligation of liquidated damages (Menchavez, et al. vs. Teves. Jr., G.R. No. 153201, January 26, 2005). 7. When the breach of the contract committed by the defendant is not the one contemplated by the parties in agreeing upon the liquidated damages, the law shall determine the measure of damages, and not the stipulation (Art. 2228, Civil Code).

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CHAPTER 7 EXEMPLARY DAMAGES Nature and concept

1. Also known as “punitive” or “vindictive” damages, exemplary or corrective damages are intended to serve as a deterrent to serious wrongdoings and as a vindication of undue sufferings and wanton invasion of the rights of an injured or a punishment for those guilty of outrageous conduct. These terms are generally, but not always, used interchangeably. In common law, there is preference in the use of exemplary damages when the award is to account for injury to feelings and for the sense of indignity and humiliation suffered by a person as a result of an injury that has been maliciously and wantonly inflicted, the theory being that there should be compensation for the hurt caused by the highly reprehensible conduct of the defendant — associated with such circumstances as willfulness, wantonness, malice, gross negligence or recklessness, oppression, insult or fraud or gross fraud — that intensifies the injury. The terms punitive or vindictive damages are often used to refer to those species of damages that may be awarded against a person to punish him for his outrageous conduct. In either case, these damages are intended in good measure to deter the wrongdoer and others like him from similar conduct in the future (People vs. Catubig, G.R. No. 137842, August 23, 2001).

Requisites for the award of exemplary damages

2. The following are the requisites for award of exemplary damages: First: They may be imposed by way of example or correction only in addition to compensatory damages and cannot be recovered as a matter of right, their determination depending upon the amount of compensatory damages that may be awarded to the claimant. Second: The claimant must first establish his 178

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right to moral, temperate, liquidated or compensatory damages. Third: The wrongful act must be accompanied by bad faith, and the award would be allowed only if the guilty party acted in a wanton, fraudulent, reckless, oppressive or malevolent manner (Medelo vs. Gorospe, G.R. No. L-41970, March 25, 1988). 3. The rationale behind exemplary or corrective Rationale damages is, as the name implies, to provide an example or correction for the public good (Lopez, et al. v. Pan American World Airways, 16 SCRA 431). It differs from moral damages in that “[w]hile moral damages have to do with injury personal to the awardee, such as physical suffering and the like, exemplary damages are imposed by way of example or correction for the public good” (Makabali vs. Court of Appeals, et al., G.R. No. L-46877, January 22, 1998). 4. Exemplary damages are designed to permit the courts to mould behavior that has socially deleterious consequences, and its imposition is required by public policy to suppress the wanton acts of an offender (Kierulf, et al. vs. Court of Appeals, et al., G.R. No. 99301 & 99343, March 13, 1997). 5. While exemplary damages cannot be recovered as a matter of right, they need not be proved, although plaintiff must show that he is entitled to moral, temperate or compensatory damages before the court may consider the question of whether or not exemplary damages should be awarded (Makabali vs. Court of Ap peals, et al., G.R. No. L-46877, January 22, 1998). The absence of actual damages, nominal, temperature, or compensatory blocks the grant of exemplary damages (Gutierrez vs. Villegas, et al., G.R. No. L-17117, July 31, 1963). 6. In criminal offenses, exemplary damages are imposed when the crime is committed with one or more aggravating circumstances (Art. 2230, Civil Code). In quasi-delicts , such damages are granted if the defendant is shown to have been so guilty of gross negligence as to approximate malice (See Art. 2231, Civil Code; CLLC E.G. Gochangco Workers Union vs. NLRC, 161 SCRA

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655; Globe Mackay Cable and Radio Corp. vs. CA, 176 SCRA 778. In contracts and quasi-contracts , the court may award exemplary damages if the defendant is found to have acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner (Art. 2232, Civil Code; PNB vs. Gen. Acceptance and Finance Corp., 161 SCRA 449). 7. In contracts and quasi-contracts, the court may award exemplary damages if the defendant acted in a wanton, fraudulent, reckless, oppressive or malevolent manner (Art. 2332, Civil Code). It may be awarded for breach of contract or quasi-contract as when a telegraph company personnel transmitted the wrong telegram. Gross carelessness or negligence constitutes wanton misconduct. (Radio Communication of the Philippines, Inc. v. Court of Appeals, 103 SCRA 359 [1981]. It is not recoverable in the absence of gross negligence (Bagumbayan Corp. v. Intermediate Appellate Court, 132 SCRA 441 [1984]). 8. The cavalier treatment of airline personnel manifests malice as manifested in the contemptuous disregard of the passenger’s protest and the abrupt rejection of their request that the Manila office be contacted for verification of the correct billing. Rudeness is never excusable. It is especially condemnable if it is committed in one’s own country against a foreign guest. Airlines should always bear in mind the special responsi bilities they owe their passengers not only of carrying them safely and comfortably according to their contracts but also of extending to them the courtesy due them in all matters relating to their trip, including reservations, confirmation of bookings, ticketing and other ground and in-flight services. The fare of the passenger includes payment for politeness. Award of exemplary damages warranted (Northwest Orient Airlines vs. Court of Appeals, et al., G.R. No. 83033, June 8, 1990). In these cases, neither the social standing nor prestige of the passenger should determine the extent to which he would suffer because of a wrong done, since the dignity affronted in the individual is a quality inherent in him and not conferred by these social indicators. Thus, as well and aptly put by Justice Serafin Camilon, propriety of damage awards is judged by their fairness considering all the circumstances.


A man’s stature is but an accident of life. The role it plays is secondary to the concepts of justice and fair play. (Alitalia Airways vs. Court of Appeals, et al., G.R. No. 77011, July 24, 1990). 9. Bad faith which would justify an award of moral and exemplary damages for breach of contract of carriage means a breach of a known duty through some motive of interest or ill-will, such as the failure of an airline to accommodate passengers which was not the result of an honest mistake, because its employees knew and were aware that what they were doing was wrong (PAL vs. Court of Appeals, et al., G.R. No. 50504-05, August 13, 1990). 10. Exemplary damages are also awarded in maritime disasters. “Exemplary damages are designed by our civil law to permit the courts to reshape behavior that is socially deleterious in its consequence by creating negative incentives or deterrents against such behavior. In requiring compliance with the standard of extraordinary diligence, a standard which is in fact that of the highest possible degree of diligence, from common carriers and in creating a presumption of negligence against them, the law seeks to compel them to control their employees, to tame their reckless instincts and to force them to take adequate care of human beings and their property. The Court will take judicial notice of the dreadful regularity with which grievous maritime disasters occur in our waters with massive loss of life. The bulk of our population is too poor to afford domestic air transportation. So it is that notwithstanding the frequent sinking of passenger vessels in our waters, crowds of people continue to travel by sea. This Court is prepared to use the instruments given to it by the law for securing the ends of law and public policy. One of those instruments is the institution of exemplary damages; one of those ends, of special importance in an archipelagic state like the Philippines, is the safe and reliable carriage of people and goods by sea.” (Negros Navigation Co., Inc. vs. Court of Appeals, G.R. No. 110398, November 7, 1997). 11. In quasi-delicts , exemplary damages may be granted if the defendant acted with gross negligence (Art.

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2231, Civil Code). Gross negligence which, according to the Court, is equivalent to the term “notorious negligence” and consists in the failure to exercise even slight care [Caunan v. Compania General de Tabacos, 56 Phil. 542 (1932)]. It is that 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 (Benguet Electric Cooperative vs. Court of Ap peals, et al., G.R. No. 127326, December 23, 1999).

12. Exemplary damages are recoverable in cases of illegal termination. Exemplary damages may be awarded if the dismissal was effected in a wanton, oppressive or malevolent manner (Spartan Security & Detective Agency, Inc. vs NLRC, et al, supra). In such instance, the claim is cognizable by the Labor Arbiter. “This is because an illegally dismissed employee has only a single cause of action although the act of dismissal may be a violation not only of the Labor Code but also of the Civil Code. For a single cause of action, the dismissed employee cannot institute a separate action before the La bor Arbiter for backwages and reinstatement and another action before the regular court for the recovery of moral and other damages because splitting a single cause of action is procedurally unsound and obnoxious to the orderly administration of justice” (Associates Citizens Bank vs. Japson, G.R. No. 50098, April 30, 1991 citing Primero v. Intermediate Appellate Court, supra, citing Gonzales v. Province of Iloilo, 38 SCRA 209; Cyphil Employees AssociationNatu v. Pharmaceutical Industries, 77 SCRA 135; Calderon v. Court of Appeals, 100 SCRA 459, etc.). 13. To serve as an example for the public good, the Supreme Court affirmed the award of exemplary damages in order to serve warning to the city or cities concerned to be more conscious of their duty and responsibility to their constituents, especially when they are engaged in construction work or when there are manholes on their sidewalks or streets which are uncovered, to immediately cover the same, in order to minimize or prevent accidents to the poor pedestrians. Too often in


the zeal to put up “public impact” projects such as beautification drives, the end is more important than the manner in which the work is carried out. Because of this obsession for showing off, such trivial details as misplaced flower pots betray the careless execution of the projects, causing public inconvenience and inviting accidents (Guilatco vs. City of Dagupan, et al., G.R. No. 61516, March 21, 1989). 14. Exemplary damages in criminal cases may be imposed when the crime was committed with one or more aggravating circumstances (Art. 2230, New Civil Code). 15. Exemplary damages awarded in case of sexual violence inflicted upon the eight-year old child. The trauma sustained by her is not merely physical and may be expected to remain with her for a long, long time, possible for life (People vs. Perez, G.R. No. 84362, July 7, 1989). 16. Raping a married woman after forcibly abducting her, in the presence of her husband warrants the imposition of exemplary damages by way of example to deter others from committing similar acts or correction for the public good is in order (People vs. Grefiel, G.R. No. 77228, November 13, 1992). 17. Raping a pregnant married woman also warrants the imposition of exemplary damages. In so doing, “the accused has shown moral corruption, perversity, and wickedness. He has grievously wronged the institution of marriage” (People vs. Cristobal, G.R. No. 116279, January 29, 1996). 18. Raping a woman while already lifeless is shocking to conscience and warrants the imposition of exemplary damages (People vs. Espanola, et al., G.R. No. 119308, April 18, 1997). 19. Exemplary damages also imposed to deter other fathers with perverse tendencies or aberrant sexual behavior from sexually abusing their own daughters (People vs. Matrimonio, G.R. No. 82223-24, November 13,

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1992); or an uncle from raping a niece (People vs. Gagto, G.R. No. 113345, February 9, 1996); or a brother-in-law from committing rape (People vs. Baldino, G.R. No. 137269, October 13, 2000). To be appreciated, the relationship must be stated in the Information (cf., People vs. Yaoto, G.R. No. 136317-18, November 18, 2001). But in People vs. Delayre, G.R. No. 139788 & 139827, October 3, 2002) , it was ruled that if the relationship is not alleged in either of the two Informations, “it cannot be used to aggravate or qualify the rapes. However, even if not so alleged, an aggravating circumstance, when proven to have attended the commission of the crime, entitles the complainant to exemplary damages.” Under prevailing jurisprudence, exemplary damages in these cases is fixed at P25,000.00.

20. The term aggravating circumstances as used therein is to be understood in its broad or generic sense since the law did not specify otherwise. The ordinary qualifying nature of an aggravating circumstance is a distinction that should only be of consequence to the criminal, rather than to the civil liability of the offender (People vs. Pidoy, G.R. No. 146696, July 3, 2003). 21. Exemplary damages may also be awarded in a case of a hapless foreign religious minister was riddled with bullets, his head shattered into bits and pieces amidst the ravelling of his executioners as they danced and laughed around their quarry, chanting the tune “Mutya Ka Baleleng,” a popular regional folk song, kicking and scoffing at his prostrate, miserable, spiritless figure that was gasping its last. Seemingly unsatiated with the ignominy of their manslaughter, their leader picked up pieces of the splattered brain and mockingly displayed them before horrified spectators. Some accounts swear that acts of cannibalism ensued, although they were not sufficiently demonstrated. However, for their outrageous feat, the gangleader already earned the monicker “cannibal priest-killer.” But what is indubitable is that Fr. Tulio Favali was senselessly killed for no apparent reason than that he was one of the Italian Catholic missionaries laboring in their vineyard in the hinterlands of Mindanao (People vs. Manero, G.R. Nos. 8688385, January 29, 1993).


22. In a case where home-made firearms (pugakhang) were used to perpetrate the killing, exemplary damages in the amount of P20,000.00 was awarded in order to impress on the public the state’s abhorrence to the proliferation of firearms (People vs. Bantillo, et al., G.R. No. 117949, October 23, 2000). 23. The initial carelessness of the rural bank in consolidating the ownership of the entire property instead of only one-half thereof in its name, its sale of the entire property to Efren Rodriguez, and the lack of promptness to rectify the mistake after its discovery, constitute gross negligence and bad faith, for which it should be held liable for exemplary damages. (Bautista, et al. vs. Mangaldan Rural Bank, G.R. No. 100755, February 10, 1994). The business of a bank is affected with public interest; thus, it makes a sworn profession of diligence and meticulousness in giving irreproachable service. For this reason, the bank should guard against injury attributable to negligence or bad faith on its part. The banking sector must at all times maintain a high level of meticulousness. The grant of exemplary damages is justified where bank is guilty of carelessness (Solidbank vs. Arrieta, G.R. No. 152720, February 17, 2005). If a person dealing with a bank does not read the fine print in the contract, it is because he trusts the bank and relies on its integrity. The ordinary customer applying for a loan or even making a deposit (and so himself extending the loan to the bank) does not bother with the red tape requirements and the finicky conditions in the documents he signs. His feeling is that he does not have to be wary of the bank because it will deal with him fairly and there is no reason to suspect its motives. This is an attitude the bank must justify. While this is not to say that bank regulations are meaningless or have no binding effect, they should, however, not be used for covering up the fault of bank employees when they blunder or, worse, intentionally cheat him. The misdeeds of such employees must be readily acknowledged and rectified without delay. The bank must always act in good faith. The ordinary customer does not feel the need for a lawyer by his side every time he deals with a bank because he is certain that it is not a predator or a potential adversary. The

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bank should show that there is really no reason for any apprehension because it truly deserves his faith in it (Prudential Bank vs. Court of Appeals, G.R. No. 108957, June 14, 1993). 24. A stipulation whereby exemplary damages are renounced in advance shall be null and void (Article 2235).

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CHAPTER 8 ASSESSMENT OF DAMAGES 1. There is, to be sure, no hard and fast rule for Guiding determining what would be a fair amount of moral (or principle exemplary) damages, each case having to be governed by its attendant particulars. Generally, the amount of moral damages should be commensurate with the actual loss or injury suffered (del Rosario vs. Court of Ap peals, et al., G.R. No. 118325, January 29, 1997). 2. In Inhelder Corporation v. Court of Appeals, G.R. No. L-52358, 122 SCRA 576, 585, (May 30, 1983) , the rule was laid down that judicial discretion granted to the courts in the assessment of damages must always be exercised with balanced restraint and measured objectivity. 3. In crimes, the damages to be adjudicated may In crimes be respectively increased or lessened according to the aggravating or mitigating circumstances (Article 2204, Civil Code). In simple and qualified rape cases, the Supreme Court noted that there is an apparent discord in the award of exemplary damages which deserves more than just a passing remark (cf., People vs. Catubig, G.R. No. 137842, August 23, 2001). The attendance of aggravating circumstances in the perpetration of the crime serves to increase the penalty (the criminal liability aspect), as well as to justify an award of exemplary or corrective damages (the civil liability aspect), moored on the greater perversity of the offender manifested in the commission of the felony such as may be shown by (1) the motivating power itself, (2) the place of commission, (3) the means and ways em187

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ployed, (4) the time, or (5) the personal circumstances of the offender or the offended party or both. There are various types of aggravating circumstances, among them, the ordinary and the qualifying. Relationship is an alternative circumstance under Article 15 of the Revised Penal Code (Ibid.). Thus, in People vs. Fundano, People vs. Ramos, People vs. Medina, People vs. Dimapilis, People vs. Calayca, People vs. Tabion, People vs. Bayona, People vs. Bayya, and People vs. Nuñez,1 along with still other cases, the Court has almost invariably appreciated relationship as an ordinary aggravating circumstance in simple rape and thereby imposed exemplary damages upon the offender whether or not the offense has been committed prior to or after the effectivity of Republic Act No. 7659. Exceptionally, as in People vs. Decena, People vs. Perez, People vs. Perez, and People vs. Ambray, the Court has denied the award of exemplary damages following the effectivity of that law. In qualified rape cases, such as in People vs. Magdato, People vs. Arizapa, and People vs. Alicante, the Court decreed the payment of exemplary damages to the offended party but it did not do so as in People vs. Alba, People vs. Mengote, and People vs. Maglente. The Court expressly decreed it is high time that It abandons its pro hac vice stance and provide, for the guidance of the bar and the bench, a kind of standard on the matter, viz: [a]lso known as “punitive” or “vindictive” damages, exemplary or corrective damages are intended to serve as a deterrent to serious wrongdoings and as a vindication of undue sufferings and wanton invasion of the rights of an injured or a punishment for those guilty of outrageous conduct. These terms are generally, but not always, used interchangeably. In common law, there is preference in the use of exemplary damages when the award is to account for injury to feelings and

1

Citations omitted.

CHAPTER 8 ASSESSMENT OF DAMAGES

for the sense of indignity and humiliation suffered by a person as a result of an injury that has been maliciously and wantonly inflicted, the theory being that there should be compensation for the hurt caused by the highly reprehensible conduct of the defendant — associated with such circumstances as willfulness, wantonness, malice, gross negligence or recklessness, oppression, insult or fraud or gross fraud — that intensifies the injury. The terms punitive or vindictive damages are often used to refer to those species of damages that may be awarded against a person to punish him for his outrageous conduct. In either case, these damages are intended in good measure to deter the wrongdoer and others like him from similar conduct in the future. The term “aggravating circumstances” used by the Civil Code, the law not having specified otherwise, is to be understood in its broad or generic sense. The commission of an offense has a two-pronged effect, one on the public as it breaches the social order and the other upon the private victim as it causes personal sufferings, each of which is addressed by, respectively, the prescription of heavier punishment for the accused and by an award of additional damages to the victim. The increase of the penalty or a shift to a graver felony underscores the exacerbation of the offense by the attendance of aggravating circumstances, whether ordinary or qualifying, in its commission. Unlike the criminal which is basically a State concern, the award of damages, however, is likewise, if not primarily, intended for the offended party who suffers thereby. It would make little sense for an award of exemplary damages to be due the private offended party when the aggravating circumstance is ordinary but to be withheld when it is qualifying. Withal, the ordinary or qualifying nature of an aggravating circumstance is a distinction that should only be of consequence to the criminal, rather than to the civil, liability of the offender. In fine, relative to the civil aspect of the case, an aggravating circumstance, whether ordinary or qualifying, should entitle the offended party to an award of exemplary damages within the unbridled meaning of Article 2230 of the Civil Code (Ibid.)

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In quasidelicts

4. In quasi-delicts , the contributory negligence of the plaintiff shall reduce the damages that he may recover (Art. 2214, Civil Code).

In quasicontracts

5. In contracts, quasi-contracts , and quasi-delicts , the court may equitably mitigate the damages under circumstances other than the case referred to in the preceding article, as in the following instances: (1) That the plaintiff himself has contravened the terms of the contract; (2) That the plaintiff has derived some benefit as a result of the contract; (3) In cases where exemplary damages are to be awarded, that the defendant acted upon the advice of counsel; (4) That the loss would have resulted in any event; (5) That since the filing of the action, the defendant has done his best to lessen the plaintiff’s loss or injury (Article 2215, Civil Code).

Doctrine of avoidable consequences

6. The party suffering loss or injury must exercise the diligence of a good father of a family to minimize the damages resulting from the act or omission in question (Article 2203, Civil Code). Under the doctrine of avoidable consequences, a party cannot recover damages flowing from the consequences which that party could reasonably have avoided (22 AmJur 2d, at p. 51). Corollary to this principle, the person who reasonably attempts to minimize his damages can recover expenses incurred. Thus, in the United States, a person tortiously injured can recover the cost of medical services incurred in seeking correction of the injury (Id., at p. 52). 7. The doctrine of avoidable consequences is to be distinguished from the doctrine of contributory negligence. Although in this jurisdiction, both operate to prevent full recovery, contributory negligence occurs either before or at the time of the wrongful act or omission of the defendant. On the other hand, the doctrine of avoidable consequences arise after the wrongful act of the defendant (cf., 22 AmJur 2d, at p. 52).

Judgment on 8. The court cannot take judgment on the pleadthe pleadings ings on claims for damages. The Supreme Court held in improper Raagas v. Traya, et al., G.R. No. L-20081, February 27, 1968 ,

that “[e]ven if the allegations regarding the amount of damages in the complaint are not specifically denied in

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the answer, such damages are not deemed admitted. Actual damages must be proved and a court cannot rely on speculation, conjecture or guesswork as to the fact and amount of damages, but must depend on actual proof that damages had been suffered and on evidence of the actual amount. Although an allegation is not necessary in order that moral damages may be awarded, it is essential that the claimant satisfactorily prove the existence of the factual basis of the damage and its causal relation to defendant’s acts. Even if the allegations regarding the amount of damages in the complaint are not specifically denied in the answer, such damages are not deemed admitted. Actual damages must be proved and a court cannot rely on speculation, conjecture or guesswork as to the fact and amount of damages, but must depend on actual proof that damages had been suffered and on evidence of the actual amount. Although an allegation is not necessary in order that moral damages may be awarded, it is essential that the claimant satisfactorily prove the existence of the factual basis of the damage and its causal relation to defendant’s acts.” 9. Under Article 32 and 2219 of the New Civil Code, a person whose constitutional rights have been violated or impaired is entitled to actual and moral damages from the public officer or employee responsible therefore. In addition, exemplary damages may also be awarded. To be liable under Article 32 of the New Civil Code it is enough that there is a violation of the constitutional rights of the plaintiffs and it is not required that defendants should have acted with malice or bad faith. 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 Article 32 of the Civil Code is to put an end to official abuse by the plea of good faith (Lim, et al. vs. de Leon, et al., G.R. No. L-22554, August 29, 1975). 10. 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. Thus, it is not the actor alone (i.e. the one directly responsible) who must answer for damages under Article

Good faith not a defense in action for damages founded on violation of constitutional rights

192


32; the person indirectly responsible has also to answer for the damages or injury caused to the aggrieved party. Only judges are excluded from liability under the said article, provided their acts or omissions do not constitute a violation of the Penal Code or other penal statute. By this provision, the principle of accountability of public officials under the Constitution acquires added meaning and assumes a larger dimension. 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 constitutionally protected rights and liberties of the citizen (Aberca vs. Ver, et al., G.R. No. L-69866, April 15, 1988). 11. That the privilege of writ of habeas corpus has been suspended is no defense in an action for damages based on violation of constitutional rights. “The suspension of the privilege of the writ of habeas corpus does not destroy petitioners’ right and cause of action for damages for illegal arrest and detention and other violations of their constitutional rights. The suspension does not render valid an otherwise illegal arrest or detention. What is suspended is merely the right of the individual to seek release from detention through the writ of habeas corpus as a speedy means of obtaining his liberty.” (Id.).

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APPENDICES APPENDIX A CIVIL CODE PROVISIONS ON QUASI-DELICT BOOK IV TITLE XVII Chapter 2 QUASI-DELICTS Art. 2176. Whoever by act or omission causes damage to another,

there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. (1902a) Art. 2177. Responsibility for fault or negligence under the preced-

ing article is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the same act or omission of the defendant. (n) Art. 2178. The provisions of Articles 1172 to 1174 are also appli-

cable to a quasi-delict. (n) Art. 2179. When the plaintiff’s own negligence was the immedi-

ate and proximate cause of his injury, he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the defendant’s lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded. (n) Art. 2180. The obligation imposed by Article 2176 is demandable

not only for one’s own acts or omissions, but also for those of persons for whom one is responsible. 193

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The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company. Guardians are liable for damages caused by the minors or incapacitated persons who are under their authority and live in their company. The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions. Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. 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. Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices, so long as they remain in their custody. The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage. (1903a) Art. 2181. Whoever pays for the damage caused by his depen-

dents or employees may recover from the latter what he has paid or delivered in satisfaction of the claim. (1904) Art. 2182. If the minor or insane person causing damage has no

parents or guardians, the minor or insane person shall be answerable with his own property in an action against him where a guardian ad litem shall be appointed. (n) Art. 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) Art. 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

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195

use of 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. If the owner was not in the motor vehicle, the provisions of Article 2180 are applicable. (n) Art. 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) Art. 2186. Every owner of a motor vehicle shall file with the proper

government office a bond executed by a government-controlled corporation or office, to answer for damages to third persons. The amount of the bond and other terms shall be fixed by the competent public official. (n) Art. 2187. Manufacturers and processors of foodstuffs, drinks, toi-

let articles and similar goods shall be liable for death or injuries caused by any noxious or harmful substances used, although no contractual relation exists between them and the consumers. (n) Art. 2188. There is prima facie 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, except when the possession or use thereof is indispensable in his occupation or business. (n) Art. 2189. Provinces, cities and municipalities shall be 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. (n) Art. 2190. The proprietor of a building or structure is responsible

for the damages resulting from its total or partial collapse, if it should be due to the lack of necessary repairs. (1907) Art. 2191. Proprietors shall also be responsible for damages 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; (3) By the falling of trees situated at or near highways or lanes, if not caused by force majeure;

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(4) By emanations from tubes, canals, sewers or deposits of infectious matter, constructed without precautions suitable to the place. (1908) Art. 2192. If damage referred to in the two preceding articles should

be the result of any defect in the construction mentioned in Article 1723, the third person suffering damages may proceed only against the engineer or architect or contractor in accordance with said article, within the period therein fixed. (1909a) Art. 2193. The head of a family that lives in a building or a part

thereof, is responsible for damages caused by things thrown or falling from the same. (1910) Art. 2194. The responsibility of two or more persons who are li-

able for a quasi-delict is solidary. (n)

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APPENDIX B CIVIL CODE PROVISIONS ON DAMAGES BOOK IV TITLE XVIII — DAMAGES Chapter 1 GENERAL PROVISIONS Art. 2195. The provisions of this Title shall be respectively appli-

cable to all obligations mentioned in Article 1157. Art. 2196. The rules under this Title are without prejudice to spe-

cial provisions on damages formulated elsewhere in this Code. Compensation for workmen and other employees in case of death, injury or illness is regulated by special laws. Rules governing damages laid down in other laws shall be observed insofar as they are not in conflict with this Code. Art. 2197. Damages may be:

(1) (2) (3) (4) (5) (6)

Actual or compensatory; Moral; Nominal; Temperate or moderate; Liquidated; or Exemplary or corrective.

Art. 2198. The principles of the general law on damages are hereby

adopted insofar as they are not inconsistent with this Code. Chapter 2 ACTUAL OR COMPENSATORY DAMAGES Art. 2199. Except as provided by law or by stipulation, one is

entitled to an adequate compensation only for such pecuniary loss suf197

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fered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages. Art. 2200. Indemnification for damages shall comprehend not only

the value of the loss suffered, but also that of the profits which the obligee failed to obtain. (1106) Art. 2201. In contracts and quasi-contracts, the damages for which

the obligor who acted in good faith is liable shall be those that are the natural and probable consequences of the breach of the obligation, and which the parties have foreseen or could have reasonably foreseen at the time the obligation was constituted. In case of fraud, bad faith, malice or wanton attitude, the obligor shall be responsible for all damages which may be reasonably attributed to the non-performance of the obligation. (1107a) Art. 2202. In crimes and quasi-delicts, the defendants shall be

liable for all damages which are the natural and probable consequences of the act or omission complained of. It is not necessary that such damages have been foreseen or could have reasonably been foreseen by the defendant. Art. 2203. The party suffering loss or injury must exercise the

deligence of a good father of a family to minimize the damages resulting from the act or omission in question. Art. 2204. In crimes, the damages to be adjudicated may be re-

spectively increased or lessened according to the aggravating or mitigating circumstances. Art. 2205. Damages may be recovered:

(1) For loss or impairment of earning capacity in cases of temporary or permanent personal injury; (2) credit.

For injury to the plaintiff’s business standing or commercial

Art. 2206. The amount of damages for death caused by a crime or

quasi-delict shall be at least Three thousand pesos, even though there may have been mitigating circumstances. In addition: (1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall be paid to the heirs of the latter; such indemnity shall in every case be assessed and awarded by the court, unless the deceased on account of permanent physical disability not caused by the defendant, had no earning capacity at the time of his death;

APPENDIX B CIVIL CODE PROVISIONS ON DAMAGES

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(2) If the deceased was obliged to give support according to the provisions of Article 291, the recipient who is not an heir called to the decedent’s inheritance by the law of testate or intestate succession, may demand support from the person causing the death, for a period not exceeding five years, the exact duration to be fixed by the court; (3) The spouse, legitimate and illegitimate descendants and ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the deceased. Art. 2207. If the plaintiff’s property has been insured, and he has

received indemnity from the insurance company for the injury or loss arising out of the wrong or breach of contract complained of, the insurance company shall be subrogated to the rights of the insured against the wrongdoer or the person who has violated the contract. If the amount paid by the insurance company does not fully cover the injury or loss, the aggrieved party shall be entitled to recover the deficiency from the person causing the loss or injury. Art. 2208. In the absence of stipulation, attorney’s fees and ex-

penses of litigation, other than judicial costs, cannot be recovered, except: (1)

When exemplary damages are awarded;

(2) When the defendant’s act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest; (3)

In criminal cases of malicious prosecution against the plain-

tiff; (4) In case of a clearly unfounded civil action or proceeding against the plaintiff; (5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff’s plainly valid, just and demandable claim; (6)

In actions for legal support;

(7) In actions for the recovery of wages of household helpers, laborers and skilled workers; (8) In actions for indemnity under workmen’s compensation and employer’s liability laws; (9) a crime;

In a separate civil action to recover civil liability arising from

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(10) When at least double judicial costs are awarded; (11) In any other case where the court deems it just and equitable that attorney’s fees and expenses of litigation should be recovered. In all cases, the attorney’s fees and expenses of litigation must be reasonable. Art. 2209. If the obligation consists in the payment of a sum of

money, and the debtor incurs in delay, the indemnity for damages, there being no stipulation to the contrary, shall be the payment of the interest agreed upon, and in the absence of stipulation, the legal interest, which is six per cent per annum. (1108) Art. 2210. Interest may, in the discretion of the court, be allowed

upon damages awarded for breach of contract. Art. 2211. In crimes and quasi-delicts, interest as a part of the

damages may, in a proper case, be adjudicated in the discretion of the court. Art. 2212. Interest due shall earn legal interest from the time it is

judicially demanded, although the obligation may be silent upon this point. (1109a) Art. 2213. Interest cannot be recovered upon unliquidated claims

or damages, except when the demand can be established with reasonable certainty. Art. 2214. In quasi-delicts, the contributory negligence of the plain-

tiff shall reduce the damages that he may recover. Art. 2215. In contracts, quasi-contracts, and quasi-delicts, the court

may equitably mitigate the damages under circumstances other than the case referred to in the preceding article, as in the following instances: (1) That the plaintiff himself has contravened the terms of the contract; (2) That the plaintiff has derived some benefit as a result of the contract; (3) In cases where exemplary damages are to be awarded, that the defendant acted upon the advice of counsel; (4)

That the loss would have resulted in any event;

(5) That since the filing of the action, the defendant has done his best to lessen the plaintiff’s loss or injury.


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Chapter 3 OTHER KINDS OF DAMAGES Art. 2216. No proof of pecuniary loss is necessary in order that

moral, nominal, temperate, liquidated or exemplary damages may be adjudicated. The assessment of such damages, except liquidated ones, is left to the discretion of the court, according to the circumstances of each case. Section 1. — Moral Damages Art. 2217. Moral damages include physical suffering, mental an-

guish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendant’s wrongful act for omission. Art. 2218. In the adjudication of moral damages, the sentimental

value of property, real or personal, may be considered. Art. 2219. Moral damages may be recovered in the following and

analogous cases: (1)

A criminal offense resulting in physical injuries;

(2)

Quasi-delicts causing physical injuries;

(3)

Seduction, abduction, rape, or other lascivious acts;

(4)

Adultery or concubinage;

(5)

Illegal or arbitrary detention or arrest;

(6)

Illegal search;

(7)

Libel, slander or any other form of defamation;

(8)

Malicious prosecution;

(9)

Acts mentioned in Article 309;

(10) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34, and 35. The parents of the female seduced, abducted, raped, or abused, referred to in No. 3 of this article, may also recover moral damages.

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The spouse, descendants, ascendants, and brother and sisters may bring the action mentioned in No. 9 of this article, in the order named. Art. 2220. Willful injury to property may be a legal ground for

awarding moral damages if the court should find that, under the circumstances, such damages are justly due. The same rule applies to breaches of contract where the defendant acted fraudulently or in bad faith. Section 2. — Nominal Damages Art. 2221. Nominal damages are adjudicated in order that a right

of the plaintiff, which has been violated or invaded by the defendant, may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him. Art. 2222. The court may award nominal damages in every obli-

gation arising from any source enumerated in Article 1157, or in every case where any property right has been invaded. Art. 2223. The adjudication of nominal damages shall preclude

further contest upon the right involved and all accessory questions, as between the parties to the suit, or their respective heirs and assigns. Section 3. — Temperate or Moderate Damages Art. 2224. Temperate or moderate damages, which are more than

nominal but less than compensatory damages, may be recovered when the court finds that some pecuniary loss has been suffered but its amount can not, from the nature of the case, be proved with certainty. Art. 2225. Temperate damages must be reasonable under the cir-

cumstances. Section 4. — Liquidated Damages Art. 2226. Liquidated damages are those agreed upon by the par-

ties to a contract, to be paid in case of breach thereof. Art. 2227. Liquidated damages, whether intended as an indem-

nity or a penalty, shall be equitably reduced if they are iniquitous or unconscionable. Art. 2228. When the breach of the contract committed by the de-

fendant is not the one contemplated by the parties in agreeing upon the liquidated damages, the law shall determine the measure of damages, and not the stipulation.


203

Section 5. — Exemplary or Corrective Damages Art. 2229. Exemplary or corrective damages are imposed, by way

of example or correction for the public good, in addition to the moral, temperate, liquidated or compensatory damages. Art. 2230. In criminal offenses, exemplary damages as a part of

the civil liability may be imposed when the crime was committed with one or more aggravating circumstances. Such damages are separate and distinct from fines and shall be paid to the offended party. Art. 2231. In quasi-delicts, exemplary damages may be granted if

the defendant acted with gross negligence. Art. 2232. In contracts and quasi-contracts, the court may award

exemplary damages if the defendant acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner. Art. 2233. Exemplary damages cannot be recovered as a matter of

right; the court will decide whether or not they should be adjudicated. Art. 2234. While the amount of the exemplary damages need not

be proved, the plaintiff must show that he is entitled to moral, temperate or compensatory damages before the court may consider the question of whether or not exemplary damages should be awarded. In case liquidated damages have been agreed upon, although no proof of loss is necessary in order that such liquidated damages may be recovered, nevertheless, before the court may consider the question of granting exemplary in addition to the liquidated damages, the plaintiff must show that he would be entitled to moral, temperate or compensatory damages were it not for the stipulation for liquidated damages. Art. 2235. A stipulation whereby exemplary damages are re-

nounced in advance shall be null and void.

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205

SUBJECT INDEX TORTS ABUSE OF RIGHT Doctrine ........................................................................... 102 Elements ........................................................................... 104 Test ........................................................................... 105 ACADEMIC INSTITUTIONS Liability for quasi-delict .................................................... 69 Liability under contracts ................................................... 70 As employer ........................................................................ 71 ANTI-VIOLENCE AGAINST WOMEN AND CHILDREN .. 109 ASSUMPTION OF RISK ............................................................. 75 Coverage ........................................................................... 75 Exceptions ........................................................................... 76 BURDEN OF PROOF .................................................................. 31 CAPTAIN OF THE SHIP DOCTRINE ...................................... 122 CAVEAT EMPTOR ...................................................................... 98, 99 CAVEAT VENDITOR.................................................................. 98 CONSUMER ACT OF THE PHILIPPINES .............................. 96 CORPORATION Liability of directors/ trustees ......................................... 122 CULPA AQUILIANA Distinguished from culpa criminal.................................. 5 Distinguished from culpa contractual ............................ 16, 17 Available remedies ............................................................. 86, 91 Action for damages survives death of defendant ......... 93 DILIGENCE OF GOOD FATHER OF FAMILY ....................... 29, 39, 52 In the supervision of employees ...................................... 52 In the selection of employees ........................................... 54 As a defense ........................................................................ 81 DOCTRINE OF ATTRACTIVE NUISANCE ........................... 74 Excavation ........................................................................... 75 DOCTRINE OF CONTRIBUTORY NEGLIGENCE Definition ........................................................................... 82 205

206


A partial defense ................................................................ Distinguished from doctrine of last clear chance .......... In children below 9 ............................................................ Not applicable in criminal cases ...................................... DOCTRINE OF DISCOVERED PERIL ..................................... DOCTRINE OF IMPLIED INVITATION TO VISIT THE PREMISES OF ANOTHER..................... DOCTRINE OF LAST CLEAR CHANCE Definition ........................................................................... Applicability ....................................................................... Not applicable in culpa contractual case ........................ Applicable to vehicular accidents .................................... DRUGGIST Liability of ........................................................................... EMERGENCY RULE ................................................................... EMOTIONAL DISTRESS TORT ACTION ............................... EMPLOYER’S LIABILITY Based on quasi-delict ......................................................... Based on Art. 100 of the Revised Penal Code ................ ENTERPRISE LIABILITY ........................................................... ERROR IN JUDGMENT RULE.................................................. GUARDIANS Vicarious liability ............................................................... Kinds of guardians ............................................................. HEAD OF FAMILY ...................................................................... HOSPITALS Liability in medical malpractice cases ............................ HUMANITARIAN DOCTRINE ................................................ INDEPENDENT CIVIL ACTION .............................................. Rules on reservation .......................................................... INSURER ........................................................................... INTERFERENCE WITH CONTRACTUAL RELATIONS ..... JUVENILE JUSTICE AND WELFARE ACT ............................ LEGAL MALPRACTICE ............................................................ MANUFACTURERS AND PROCESSORS OF FOODSTUFFS ..................................................................... MEDICAL MALPRACTICE ....................................................... Elements ........................................................................... Error in Judgment Rule ..................................................... NEGLIGENCE Definition............................................................................. Test .......................................................................................

82 83 83 85 77 73 77 77- 79 79 79 98 79 106 14 56, 58 96 115 43 43 100 118, 120 77 12 90 93 109 84 122 95-100 110 112 115 23 24

SUBJECT INDEX TORTS

Degrees of diligence ........................................................... Factors to be considered .................................................... Presumptions ...................................................................... A question of fact ............................................................... Plaintiff’s own negligence................................................. Doctrine of Intervening Negligence ................................ Doctrine of Contributory Negligence ............................. NUISANCE ........................................................................... PHYSICIAN- PATIENT RELATIONSHIP................................ POSSESSOR OF ANIMALS ....................................................... PRESCRIPTION ........................................................................... PROXIMATE CAUSE Definition ........................................................................... “But for” test ....................................................................... Concurrence of efficient causes ........................................ QUASI-DELICT Definition ........................................................................... Elements ........................................................................... Culpa aquiliana distinguished from culpa criminal ..... Pre-existing contract as a bar ............................................ Exceptions ........................................................................... Culpa aquiliana distinguished from culpa contractual ................................................................. Special issues involving culpa contractual ..................... RECESS ........................................................................... RES IPSA LOQUITUR Definition ........................................................................... Applicability ....................................................................... RESERVATION OF CIVIL ACTION ......................................... RESPONDEAT SUPERIOR ........................................................ ROVING COMMISSION RULE ................................................ RULE OF DAVIES VS. MANN .................................................. SPECIAL AGENT ........................................................................ SPECIAL ERRAND RULE .......................................................... SPECIAL TORTS .......................................................................... Moral damages ................................................................... STRICT LIABILITY TORTS Definition ........................................................................... Rationale ........................................................................... Strict liability in torts ......................................................... TORTFEASOR Nature of liability ...............................................................

207

25 28 32, 33 36 72 77 82 123 110 94-95 81 29 30 30 2, 3 3 5 14 15 16, 17 18 69 33 35, 116 87- 90 45, 50 48 77 61 48 102, 103 157 94 94 94 37, 92

208


Release of tortfeasor, effect on others .............................. 37 TORTS Definition ........................................................................... 1 Distinguished from quasi-delict ...................................... 2 Strict Liability ..................................................................... 94 Special Torts ........................................................................ 102 Kindred Torts ...................................................................... 110 VICARIOUS LIABILITY Doctrine of........................................................................... 38 Rationale ........................................................................... 38, 46, 47 Of parents ........................................................................... 40 Of guardians ....................................................................... 43 Of employers ...................................................................... 43 Of owners of vehicle .......................................................... 60 Of State ........................................................................... 60 Of Provinces, cities and municipalities ........................... 62 Of teachers .......................................................................... 64 -69 Of schools of arts and trade .............................................. 64 Of proprietor of building or structure............................. 71 VOLENTI NON FIT INJURIA ................................................... 75 WORKING SCHOLARS ............................................................. 49

209

SUBJECT INDEX DAMAGES ACTUAL DAMAGES Definition ........................................................................... Requirements ...................................................................... Burden of proof .................................................................. Components of ................................................................... Kinds .................................................................................... In contracts .......................................................................... In quasi-contracts ............................................................... In quasi-delict ..................................................................... In crimes .............................................................................. ATTORNEY’S FEES ..................................................................... BREACH OF PROMISE TO MARRY ........................................ CIVIL INDEMNITY ..................................................................... In rape cases ........................................................................ DAMAGE ..................................................................................... DAMAGES Definition............................................................................. Distinguished from other concepts ................................. Rationale .............................................................................. General damages ................................................................ Special damages ................................................................. Assessment of ..................................................................... DAMNUM ABSQUE INJURIA ................................................. DOCTRINE OF AVOIDABLE CONSEQUENCE .................... DOCTRINE OF FAIR COMMENT............................................ EGGSHELL SKULL RULE ......................................................... EXEMPLARY DAMAGES Nature and concept............................................................ Requisites ............................................................................ Rationale .............................................................................. When recoverable .............................................................. GENERAL DAMAGES ............................................................... 209

127 128 128 129 130 130 130 131, 135 131, 135 138, 139 158, 165 135, 136 143 124 124 124 125 125 125 187 124, 125 190 147 131 178 178 179 179 125

210


INJURY ..................................................................................... INTEREST ..................................................................................... JUDGMENT ON PLEADINGS .................................................. LIBEL ..................................................................................... Publication in libel cases ................................................... Group libel .......................................................................... LIQUIDATED DAMAGES Definition............................................................................. Nature and concept............................................................ LOST EARNINGS........................................................................ Formula ............................................................................... LUCRUM CESSANS ................................................................... MALICIOUS PROSECUTION ................................................... MORAL DAMAGES Nature and concept............................................................ Requirements ...................................................................... Instances where moral damages may be recovered...... In seduction ......................................................................... In quasi-delict ..................................................................... In rape cases ........................................................................ In defamation ...................................................................... In culpa contractual cases ................................................. Analogous cases ................................................................. In favor of corporation, general rule ............................... Exception ............................................................................. NOMINAL DAMAGES Nature and concept............................................................ When recoverable .............................................................. PUBLIC FIGURE DOCTRINE ................................................... SPECIAL DAMAGES .................................................................. SUBROGATORY RIGHT OF INSURER ................................... TEMPERATE DAMAGES Nature and concept............................................................ When recoverable .............................................................. THIN SKULL RULE ....................................................................

124 136, 137 190 146 149 150 176 176 133 134 130 152 141 142 144 144 144 145 145 159 163 166 167 168 169 149 125 140 172 174 131

211

AUTHOR’S ACADEMIC PROFILE

Ms. Largo is a graduate of Bachelor of Arts Major in Political Science Class Valedictorian and Magna Cum Laude of Class 1995 from University of San Carlos, Asia’s oldest educational institution located in the heart of Central Philippines. She took up her law studies in the same University under full scholarship from The Goipeng Foundation and graduated Class Valedictorian and Cum Laude of her Law Class in 1999. In May 2005, she finished her Master of Laws degree from the University of Southern Philippines, Cebu City. In May 2007, she obtained her second Master of Laws degree from San Beda College Graduate School of Law, Mendiola, Manila where she graduated Cum Laude. This book is her final output in the course. At present, Ms. Largo serves as Assistant to the Dean in the College of Law of University of San Carlos and its professor in Constitutional Law, Administrative Law, Election Laws and Torts and Damages. She is also actively engaged in trial and appellate practice with Florido and Largo Law Office, (formerly, Florido & Associates Law Offices), a 75-year old law firm based in Cebu.


JOAN S. LARGO

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AUTHOR’S NOTE

TORTS AND DAMAGES are two very important legal concepts. In this crowded world, the need for regulation in the conduct of our professional and personal lives becomes increasingly real. In instances where rights are transgressed and laws are violated, people turn to courts for peaceful resolution of their conflicts. When they do, there perhaps is no law as constantly invoked in every case, and in every relief than our law on damages. It is for good measure, then, that we see a growing tendency to give much-deserved importance to these heretofore neglected areas of law. Recent Bar Examinations show that more and more questions are being asked in Civil Law on torts and damages. Recent cases, too, show our own Supreme Court breaking new grounds in our laws on negligence. With this newly-gained attention on the subjects came the author’s felt need to write this humble treatise. The objective is to present torts and damages comprehensively while adhering to their teachable limits. This is, thus, an endeavor to state, with brevity and with accuracy, the fundamental principles governing tort litigations in the Philippines and the claims for damages, so that the reader may have a handy yet credible reference on the subject. In this book, the essential concepts of torts and damages are presented using and analyzing cases decided by the Philippine Supreme Court from 1901 to 2006. In less-visited areas in torts such as medical malpractice and product liability torts, wealth of information is drawn from foreign decisions and commentaries. The book opens with a discussion of the fundamental principles in torts. Tort is inherently a common law concept. It is largely comprised of judicial opinions. It is, in this sense, pervasive. It can be any wrongful conduct or omission, for as long as there is no pre-existing contract between parties. The distinguishing mark of a tort action, then, is that it is not based on agreement between parties, but on the prescriptions of law or community as applied or interpreted by the judge. iii

However, since the Philippines is a civil law country, tort here is viewed to be that rule of conduct which our legislature prescribes, supplemented by the interpretations made by our Supreme Court in appropriate cases presented before it. Thus, our principal concept of torts is that which is ordained in Article 2176 of our Civil Code as an act or omission, founded on negligence, causing damage to another where there is no pre-existing contractual obligations between parties. Tort, here, is essentially based on negligent act or omission and cannot generally cover intentional acts, in view of the limiting definition of Article 2176 of the Code. Unlike in the United States, tort in the Philippines cannot cover any wrong; its scope is limited to cases anchored on negligence. The only commonality shared with the common law concept of torts is that our tort action is based not on contractual breach and presupposes that there is no preexisting contracts between parties. Thus, it was once postulated that common law torts is more comprehensive than ours. However, in the course of our jurisprudential development, we have seen how courts use with greater assertiveness our provisions of civil law governing human relations. Intentional breaches of the rules of good morals and customs were considered special torts. Hence, in modern times, our Supreme Court was bold enough to declare that our law on civil wrongs has become “much more supple and adaptable than the Anglo-American law on torts” (Baksh vs. Court of Appeals, et al., G.R. No. 97336, February 19, 1993). Our courts have also boldly entered the uncharted territories of strict liability torts (also known strict liability in torts), rules on products liability and such kindred torts as medical malpractice/negligence. Alongside with this growth in our substantive law on torts are the changes in the manner of litigating a tort action. Fully cognizant of these changes, this book has endeavored to present both these substantive and procedural developments. In the main, then, this book aims to present torts in both the substantive and procedural form so that the torts students will learn how the substance and procedure relate to and influence each other. It endeavors to follow and trace the steps taken by law practitioner when espousing or defending a tort action. In discussing the general concept of torts (Chapter 1), an extended discussion is made between three remedies commonly involving negligence, to wit, culpa aquiliana , culpa criminal and culpa contractual. Afterwhich, the book focused on elements of quasi-delict which are negligence and proximate cause (Chapter 2). Discussion then follows on who may be made liable in a tort action, iv

vicariously or otherwise (Chapter 3), and the possible defenses that these defendants may raise (Chapter 4). Then, in the event that these defenses are unavailing, the next question tackled is how does one bring a case for tort and what are the ways and devices that may be employed in enforcing this right of action (Chapter 5). After presenting these important principles and considerations in a pure tort action , such special topics as strict liability torts (Chapter 6), special torts (Chapter 7) and kindred torts of medical malpractice (Chapter 8) are then discussed. As in common law countries, our “strict liability torts” refer to the peculiar brand of torts that connote wrongs that law will remedy despite the absence of negligence. The mere doing of the act that causes harm creates a cause of action in view of the public policy involved in the nature of the activity. Special torts, on the other hand, are such because they are not negligence-based. They are intentional acts that violate the fundamental precepts of human relations. The exposition on torts closes with a discussion on medical malpractice which has gained prominence in the fairly-recent past. As this is a branch of torts that is yet to be fully-developed, the author drew heavily from the commentaries and jurisprudence of foreign scholars and courts. The book on damages is intended to be an extensive exposition of the governing laws, principles and jurisprudence on damages. As with the author’s work on torts, the inputs were drawn heavily from the works of our Supreme Court from 1901 to present. In cases where Philippine cases abound, the discussion was subordinated to the exposition of established rules, principles and jurisprudence as announced by our own courts, even as neither history nor the foreign jurisprudence on the subject has been ignored. There is a conscious effort to avoid putting in the author’s personal views, realizing fully that in this country, only the words of the Supreme Court have “binding effect” on the readers. References to the writings and decisions of US Supreme Court and of foreign writers were made, but only in few areas where there is dearth of Philippine jurisprudence. Over-all, this is an attempt to present torts and damages in the words of our very own Supreme Court. To make the book as useful yet as brief as possible, recent cases have been preferred to older ones, except when the older cases offer discussion on the principle and authorities that is equally valuable. Unlike existing work on the subject, this book is not intended to be a digest of reported decisions. Instead, this is a concise presentation v

of legal principles on quasi-delict and damages achieved by briefly expounding the law as set forth in judicial decisions and referring only to those cases which bear directly and helpfully upon the topics to which they are cited. This book also differs in the manner and order or sequence of presenting the established principles on quasi-delict and damages based on the encounters with the students in the academe. This, after all, is a law student’s book for learning what lawyers need to know in practicing in the field of torts. As to form or presentation, this book is written in numbered paragraph form, a personal preference. Seeing the fulfillment of a dream and the partial completion of a teacher’s mission, there are just some words that must not go unsaid, and these are thank you. Thanks to my husband, our Ayen, and family. Things happen only because I have them. Thanks, too, to my boss, Atty. Bernardito A. Florido, for the genuine support and kind understanding. Thanks to University of San Carlos for the constant inspiration. Thanks to Fr. Ranhilio C. Aquino, Dean of San Beda Graduate School of Law, for opening the door, and to Justice Jose C. Vitug, my book adviser, for taking me here. To you both, great minds in extremely humble hearts, my eternal gratitude. Most importantly, thanks to Him. Now that the mist has been lifted, I see the humbling power of His daily Grace.

vi

TABLE OF CONTENTS OUTLINE

I.

Page

QUASI-DELICT AUTHOR’S NOTE ......................................................................

iii

CHAPTER 1. CHAPTER 2. CHAPTER 3. CHAPTER 4.

1 23 37

INTRODUCTORY CONCEPTS ................... ELEMENTS OF QUASI-DELICT ................. NATURE OF LIABILITY .............................. DEFENSES IN AN ACTION FOR QUASI-DELICT .............................................. ENFORCEMENT OF LIABILITY ................ STRICT LIABILITY TORTS .......................... SPECIAL TORTS ............................................ KINDRED TORTS ..........................................

72 86 94 102 110

INTRODUCTORY CONCEPTS ................... ACTUAL DAMAGES .................................... MORAL DAMAGES ...................................... NOMINAL DAMAGES ................................ TEMPERATE DAMAGES ............................. LIQUIDATED DAMAGES ........................... EXEMPLARY DAMAGES ............................ ASSESSMENT OF DAMAGES ....................

124 127 141 168 172 176 178 187

APPENDICES........................................................................................ SUBJECT INDEX ..................................................................................

193 205

CHAPTER 5. CHAPTER 6. CHAPTER 7. CHAPTER 8. II.

DAMAGES CHAPTER 1. CHAPTER 2. CHAPTER 3. CHAPTER 4. CHAPTER 5. CHAPTER 6. CHAPTER 7. CHAPTER 8.

SUB-OUTLINE

AUTHOR’S NOTE I.

QUASI-DELICT CHAPTER 1.

INTRODUCTORY CONCEPTS Definition of Quasi-delict ................................. Quasi-delict distinguished from torts .............. Elements of Quasi-delict ................................... vii

1 2 3

Culpa aquiliana distinguished from culpa criminal ................................................... Pre-existing contract generally bars quasi-delict .............................................. Exceptions ......................................................... Culpa aquiliana distinguished from culpa contractual ............................................... Special Issues .................................................... CHAPTER 2.

CHAPTER 3.

ELEMENTS OF QUASI-DELICT Definition of Negligence ................................... Test to determine existence of negligence ......... Degrees of Negligence ....................................... Nature of the concept ........................................ Factors to be considered .................................... Definition of proximate cause ........................... Concurrence of efficient causes ......................... Burden of proof ................................................. Presumptions of negligence .............................. Definition of Res ipsa loquitur .........................

14 15 16 18 23 24 25 25 28 29 30 31 32 33

NATURE OF LIABILITY Liability of tortfeasors ....................................... Doctrine of Vicarious Liability ......................... Rationale ....................................................... Vicarious liability of parents ............................ Vicarious liability of guardians ........................ Vicarious liability of employers ........................ Distinctions between employer’s vicarious liability under Art. 2180 of NCC and employer’s subsidiary liability under Art. 100 of RPC ........................... Vicarious liability of owner of vehicle .............. Vicarious liability of State ................................ Provinces, cities and municipalities ................. Vicarious liability of teachers and owners of schools of arts and trade ..................... Liability of proprietor of building .....................

CHAPTER 4.

5

37 38 38 40 43 43

56 60 60 62 64 71

DEFENSES IN AN ACTION FOR QUASI-DELICT Plaintiff’s own negligence ................................ Theory of implied invitation ................... viii

72 73

Doctrine of Attractive Nuisance............. Assumption of risk ............................................ Doctrine of last clear chance ............................ Emergency Rule ................................................ Prescription ....................................................... Diligence of good father of family .................... Doctrine of contributory negligence................. Contributory negligence distinguished from doctrine of last clear chance .................... CHAPTER 5.

87 92

94 94 95 100

SPECIAL TORTS Definition ....................................................... Abuse of Right Principle .................................. Cases under Art. 21 of NCC ............................ “Emotional distress’’ tort action ....................... Cases under Art. 26 of NCC ............................ Interference with contractual relations ............

CHAPTER 8.

86

STRICT LIABILITY TORTS Definition and rationale ................................... Liability of possessor of animals ....................... Liability of manufacturers and processors of foodstuffs, etc. ...................................... Liability of head of family .................................

CHAPTER 7.

83

ENFORCEMENT OF LIABILITY Available remedies............................................. Rules governing requirement on reservation of independent civil action ... Nature of liability .............................................

CHAPTER 6.

74 75 77 79 81 81 82

102 102 103 106 108 109

KINDRED TORTS Medical Malpractice/Medical Negligence ........ Elements of Medical Negligence ...................... Error in Judgment rule ..................................... Evidential rules ................................................. Liability of hospitals.......................................... Special or limited practitioners ........................ Legal Malpractice.............................................. Liability of directors and trustees of corporation............................................... A word on nuisance .......................................... ix

110 112 115 115 118 121 122 122 123

II.

DAMAGES CHAPTER 1.

INTRODUCTORY CONCEPTS Definition of damages ....................................... Distinctions with other concepts ...................... Rationale ....................................................... General and special damages ............................

CHAPTER 2.

ACTUAL DAMAGES Definition ....................................................... Requirements for the grant of actual damages ................................................... Components of actual damages ........................ In contracts and quasi-contracts ............ In quasi-delicts ........................................ In crimes .................................................. Interest ..................................................... Attorney’s fees ......................................... Subrogatory right of the insurer ......................

CHAPTER 3.

127 128 129 130 131 131 136 138 140

MORAL DAMAGES Nature and concept ........................................... Requirements for the grant of moral damages ................................................... Instances where moral damages may be recovered ............................................. In seduction ............................................. In quasi-delict .......................................... In rape ..................................................... In defamation........................................... Doctrine of fair comment .............. Public Figure ................................. Group libel ..................................... Malicious prosecution ............................. Art. 19, 20, 21 of NCC..................................... Breach of promise to marry ..................... Culpa contractual cases .................................... Analogous cases ................................................ General rule on moral damages in favor of corporation .......................................... Exception .......................................................

CHAPTER 4.

124 124 125 125

141 142 144 144 144 145 145 147 149 150 152 157 158 159 163 166 167

NOMINAL DAMAGES Nature and concept ........................................... x

168

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