UST Golden Notes 2011 - Torts and Damages.pdf

UST GOLDEN NOTES 2011 TORTS AND DAMAGES BOOK I – TORTS I. PRINCIPLES A. ABUSE OF RIGHT; ELEMENTS Q: What is the principle of abuse of rights? A: Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. (Art. 19, NCC) NOTE: This principle is based upon the famous maxim suum jus summa injuria (the abuse of a right is the greatest possible wrong). (Arlegui v. CA G.R. No. 126437, Mar. 6, 2002)

Q: What are the elements of the principle of abuse of rights? A: 1. Legal right or duty 2. The right or duty is exercised in bad faith, and 3. For the sole intent of prejudicing or injuring another B. UNJUST ENRICHMENT Q: What is the principle behind the prohibition against unjust enrichment? A: “Nemo cum alteris detrimento locupletari potest” or no one shall unjustly enrich himself at the expense of another. Coverage: the article applies only if: i. Someone acquires or comes into possession of “something” which means delivery or acquisition of “things”; and ii. Acquisition is undue and at the expense of another which means without any just or legal ground. NOTE: The government is not exempted from the principle of unjust enrichment.

Q: What is the remedy for unjust enrichment? A: Accion In Rem Verso. It is an action for recovery of what has been paid without just cause. NOTE: This is only a subsidiary action. NOTE: Mistake is not an essential element, as opposed to solutio indebiti where mistake is an essential element.

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Protection of Human Dignity – Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. Q: What are the requisites for accion in rem verso? A: 1. That the defendant has been enriched; 2. That the plaintiff has suffered a loss; 3. That the enrichment of the defendant is without just or legal ground 4. That the plaintiff has no other action based on contract, quasi‐contract, crime or quasi‐delict. Q: When may accion in rem verso be availed of? A: It can only be availed of if there is no other remedy to enforce it based on contract, quasi‐ contract, crime or quasi‐delict. Q: Distinguish accion in rem verso from solutio indebiti. A: ACCION IN REM VERSO SOLUTIO INDEBITI It is not necessary that Payment by mistake is payment be made by an essential element mistake Q: Is rendition of services included under Art. 22? A: No. If services were rendered by someone benefiting another, it does not mean that the latter is exempted from indemnifying the former. The liability will lie on quasi‐contract under Article 2146. C. LIABILITY WITHOUT FAULT Q: Is Liability Without Fault different with Damnum Absque Injuria? A: Yes. Liability without Fault includes: a. Strict Liability – there is strict liability if one is made independent of fault, negligence or intent after establishing certain facts specified by law. It includes liability for conversion and for injuries caused by animals, ultra‐hazardous activities and nuisance. b. Product Liability – is the law which governs the liability of manufacturers and sellers for damages resulting from defective products. (Aquino, T., Torts and Damages, 2005, Second Ed.)

CIVIL LAW TEAM: ADVISER: ATTY. ELMER T. RABUYA; SUBJECT HEAD: ALFREDO B. DIMAFELIX II; ASST. SUBJECT HEADS: KAREN FELIZ G. SUPNAD, LAMBERTO L. SANTOS III; MEMBERS: PAUL ELBERT E. AMON, ALSTON ANARNA, OZAN J. FULLEROS, CECILIO M. JIMENO, JR., ISMAEL SARANGAYA, JR.; CONTRIBUTORS: LOISE RAE G. NAVAL, MONICA JUCOM

TORTS AND DAMAGES Q: What is the concept of Damnum Absque Injuria? A: A person who only exercises his legal rights does no injury. If damages result from such exercise of legal rights, 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. Q: Is the owner of a property obliged to take reasonable care towards a trespasser for his protection or from concealed danger? A: GR: No. XPN: 1. Visitors – Owners of buildings or premises owe a duty of care to visitors. 2. Tolerated Posession – The owner is still liable if the plaintiff is inside his property by tolerance or by implied permission. Common carriers may be held liable for negligence to persons who stay in their premises even if they are not passengers. 3. Doctrine of Attractive Nuisance 4. State of Necessity (Art. 432) – A situation of present danger to legally protected interests, in which there is no other remedy than the injuring of another’s also legally protected interest. D. ACTS CONTRARY TO LAW Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same. (Art. 20, NCC) Q: Does the above stated rule apply to all cases violation of law? A: No. Generally, laws provide for their own sanctions and methods of enforcement thereof. Article 20 applies only in cases where the law does not provide for its own sanction. Said article provides for a general sanction –indemnification for damages. (Pineda, 2004)

Q: In view of the general sanction provided for under Art. 20, may a person have an absolute right to be indemnified? A: No. It is essential that some right of his be impaired. Without such, he is not entitled to indemnification. (Pineda, 2004) E. ACTS CONTRARY TO MORALS Q: Differentiate Article 20 from Article 21 of the Civil Code. A: Article 20 speaks of the general sanction for all other provisions of law which do not especially provide for their own sanction. Article 21 on the other hand, speaks of act which is legal but is contrary to morals, good custom, public order or public policy and is done with intent to injure. NOTE: Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. (Art. 21, NCC)

Q: What are the elements of acts contra bonus mores under Art. 21, NCC? A: 1. There is an act which is legal; 2. but which is contrary to morals, good custom, public order, or public policy; and 3. it is done with intent to injure. Q: When is breach of promise to marry an actionable wrong? A: It becomes actionable if there are additional circumstances such as: 1. there was financial damage; 2. social humiliation was caused by to one of the parties; and, 3. where there was moral seduction. (Aquino, T., Torts and Damages, Second Ed., p351)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II U N I V E R S I T Y O F S A N T O T O M A S VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA Facultad de Derecho Civil ICE C HAIR FOR A DMINISTRATION AND F INANCE : J EANELLE C. L EE V VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 II. CLASSIFICATION OF TORTS A. ACCORDING TO MANNER OF COMMISSION Q: What are the classes of torts according to manner of commission? A: 1. Negligent torts – It involves voluntary acts or omissions which results in injury to others, without intending to cause the same. 2. Intentional torts – The actor desires to cause the consequences of his act or believes the consequences are substantially certain to result therefrom. 3. Strict liability – The person is made liable independent of fault or negligence upon submission of proof of certain facts. 4. Constitutional torts – The violation of a person’s rights under Article III (Bill of Rights) of the 1987 Constitution as contemplated in Article 32 constitutes constitutional tort. 5. B. ACCORDING TO SCOPE: GENERAL OR SPECIFIC 6. 1. General – the catch‐all provisions on torts provided for in the civil code i.e. Articles 19, 20 and 21. The effect is that “there is a general duty owed to every person not to cause harm either willfully or negligently. Articles 19, 20, and 21 are provisions on human relations that “were intended to expand the concept of torts in this jurisdiction by granting adequate legal remedy for the untold number of moral wrongs which is impossible for human foresight to specifically provide for in the statutes.” (Aquino, 2005, citing PNB v. CA, et al. 83 SCRA 237) 2. Specific torts ‐ It includes trespass, assault and battery, negligence, products liability, and intentional infliction of emotional distress. As defined, torts fall into three different categories: intentional, negligent and liability (manufacturing and selling defective products), product liability tort. a. art 19, 20, 21 (catch‐all provisions)

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b.

unjust enrichment (arts. 22, 23, 2142 & 2143) c. violation of right of privacy and family relations d. dereliction of official duty of public officers e. unfair competition f. malicious prosecution g. violation of rights and liberties of another person h. nuisance III. THE TORTFEASOR A. THE DIRECT TORTFEASOR

Q: Who are the persons liable for a quasi‐delict? A: Defendants in tort cases can either be natural or artificial beings. Q: Can a corporation be held liable for torts? A: Yes. A corporation is civilly liable in the same manner as natural persons. (PNB v. CA, 83 SCRA 237) NOTE: With respect to close corporations, the stockholders who are personally involved in the operation of the corporation may be personally liable for corporate torts under Section 100 of the Corporation Code.

RE: Corporation by Estoppel: all persons who assume to act as a corporation knowing it to be without authority to do so shall be liable as general partners for all debts, liabilities and damages incurred or arising as a result thereof. With respect to partnerships, the partnership is solidarily liable with the partner if the latter commit tortuous acts while acting in the pursuit of partnership business. This principle is consistent with the mutual agency rule in partnership. Subject to rules regarding waiver of immunity from suits, defendants may include the State, its political subdivisions, and government‐owned and controlled corporations.


TORTS AND DAMAGES B. PERSONS MADE RESPONSIBLE FOR OTHERS 1. IN GENERAL Q: Who are the persons made responsible for others? A: 1. Father/ mother for their minor children. 2. Guardians are liable for the minors and incapacitated persons under their authority. 3. Owners/managers of establishment or enterprise for their employees 4. Employers for their employees and household helpers. 5. State for their special agents 6. Teachers/Heads of establishment of arts and trades for their pupils/students/apprentices (Art. 2180, NCC). Q: What is the difference between a minor child and an incapacitated person in the preceding number? A: Minors here refer to those who are below twenty‐one years (21) and not to those below 18 years. While incapacitated persons refer to persons beyond twenty‐one (21) years of age but are incapacitated such as those who are insane or imbecile. (Pineda, Torsts and Damages, 2009, p.81) Q: What are the requisites of vicarious liability of parents? A: 1. The child is below twenty‐one (21) years of age 2. The child committed a tortuous act to the damage and prejudice of another person 3. The child lives in the company of the parent concerned whether single or married. Q: Who is responsible for an illegitimate child? A: If the child is illegitimate and acknowledged by the father and lives with the latter, the father is responsible. However, an illegitimate child who is not recognized by the putative father but is under the custody and supervision of the mother, it is the latter who is the one vicariously liable.

Q: Is the mother liable simultaneously with the father? A: No. The law does not make the father and mother simultaneously liable. It is only in the case of death or incapacity of the father, that the mother may be held liable. NOTE: Consequently, the wife as a co‐defendant with the husband or if impleaded alone while the husband is alive and well, may move to dismiss the case filed against her for being premature. (Romano v. Parinas, 101 Phil. 141)

Q: Are de facto guardians vicariously liable? A: Yes. It is but just that if the children commit tortuous acts while living with them and are below 21 years of age, the law should be applied by analogy. Note: De facto guardians are relatives and neighbors who take unto themselves the duty to care and support orphaned children without passing through judicial proceedings.

Q: What is the rule in vicarious liability of owners and managers? A: GR: A mere manager, who does not own the business, is not to be considered an employer because as a manager, he is just a high class employee. XPN: A manager who is not an owner but who assumes the responsibility of supervision over the employees of the owner may be held liable for the acts of the employees. NOTE: To be liable, the manager must be acting as an employer of with the same authority as the owner.

Q: When is the employer liable for the tortuous act of the employee? A: To make the employer liable under Art 2180(5 and 6), it must be established that the injurious or tortuous act was committed at the time the employee was performing his functions. Note: If there is deviation from the scope of employment, the employer is not liable, no matter how short in time is the deviation. (Pineda, Torsts and Damages, 2009, p.97)


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UST GOLDEN NOTES 2011 Q: What is the rule on independent contractors? A: GR: An independent contractor is not an employee of the person who engaged his services. The independent contractor is free to execute the work without being subject to the orders of the employer on the details of work. XPN: If the employer retains the control and supervision over the person engaged with respect to the work to be done, there is between them an employer‐employee relationship. A. QUASI‐DELICTS UNDER ARTICLE 2180, HOW INTERPRETED Q: How is quasi‐delict under Art. 2180 interpreted? A: A person or juridical entity is made liable solidarily with a tortfeasor simply by reason of his relationship with the latter. The relationship may either be a parent and child; guardian and ward; employer and employee; school and student. NOTE: Art. 2176, NCC ‐ Whoever by act or omission causes damage to another, there being no 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.

Q: When is the actual tortfeasor not exempted from liability? A: The minor, ward, employee, special agent, pupil, students and apprentices who actually committed the delictual acts are not exempted by the law from personal responsibility. They may be sued and made liable alone as when the person responsible for them or vicarious obligor proves that he exercised the diligence of a good father of a family or when the minor or insane person has no parents or guardians. In the latter instance, they are answerable with their own property. Q: What are the remedies of an injured party for the tortuous act of an employee? A: 1. Filing a civil action for damages based on quasi‐delict under Art. 2180 – liability of the employer is primary, direct and solidary

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2.

Filing a criminal case: (offender found guilty) the civil liability of the employer is subsidiary.

Q: What is the defense for the persons liable under Art. 2180? A: The persons liable shall be exempted from liability if they can prove that they have exercised all the diligence of a good father of a family to prevent damage. Q: What is the basis of quasi‐delicts under Art. 2180? A: Pater Familias. The reason for the master’s liability is the negligence in the supervision of his subordinates. Note: The “master”, however, in pater familias under Art. 2180 will be freed from liability if he can prove that he had observed all the diligence of a good father of a family.

Q: What is the nature of responsibility if the vicarious obligor? A: The liability of the vicarious obligor is primary and direct and not subsidiary. He is solidarily liable with the tortfeasor. His responsibility is not conditioned upon the insolvency of or prior recourse against the negligent tortfeasor. FAMILY CODE Q: Who is a minor under Art 221 of the Family Code? A: The term “unemancipated minor” found in Art 221(FC) means children below 18 years of age. This is in contrast with the “minor children” found in Art 2180(2)(NCC) which refers to children below 21 years. To avoid the overlapping in ages, the better option to settle the conflict is to consider Art 221 as totally superseded by Art 236(FC) as amended by R.A. 6809. Thus: GR: 18 years of age – parental authority ceases (emancipation) XPNS: 21 years of age in the following cases 1. marriage 2. Art. 2180(2) NCC Note: Art 221. Family Code provides that parents and other persons exercising parental authority shall be civilly liable for the injuries and damages caused by the act or omission or their unemancipated


TORTS AND DAMAGES children living in their company and under parental authority subject to the appropriate defenses provided by law.

Q: Distinguish between Articles 218 of the Family Code and 2180 of the New Civil Code. A: ARTICLE 218 ARTICLE 2180 School, its Teachers, head of administrators, establishment in arts teachers engaged in and trades are made child care are made expressly liable expressly liable Liability of school, its administrators, No such express teachers is solidary solidary nor subsidiary and parents are made liability is stated subsidiary liable Students involved Students involved are must be a minor not necessarily minors Q: Is the application of Article 2180 limited to school of arts and trades? A: No. It applies to all, including academic institutions. Q: Can the liability be imputed to the teacher‐in‐ charge even if the student has already reached the age of majority? A: Yes. Under Article 2180, age does not matter. Q: Is it required that the student be only within the school premises in order for the liability to arise under this article? A: No. Authority and responsibility shall apply to all authorized activities whether inside or outside the premises of the school, entity or institution. Q: What is the nature of the liability of the persons enumerated under Art. 218? A: Those given authority and responsibility under the preceding Article (Art. 218) 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 if it is proved that they exercised proper diligence required under the particular circumstances (Art 219).

Q: A 15‐year‐old high school student stabs his classmate who is his rival for a girl, while they were going out of the classroom after their last class. Who may be held liable? A: Under Section 218 of the Family Code, the school, its administrators and teachers, or the individual, entity or institution engaged in child care shall have special parental authority and responsibility over the minor child while under their supervision, instruction or custody. Authority and responsibility shall apply to all authorized activities whether inside or outside the premises of the school, entity or institution. Q: What defense, if any, is available to them? A: These persons identified by law to be liable may raise the defense that they exercised proper diligence required under the circumstances. Their responsibility will cease when they prove that they observed all the diligence of a good father of a family to prevent damage. As regards the employer, if he shows to the satisfaction of the court that in the selection and in the supervision of his employees he has exercised the care and diligence of a good father of a family, the presumption is overcome and he is relieved from liability. (Layugan v. IAC, G.R. No. L‐49542, Sept. 12, 1980). (2005 Bar Question) (1) ELEMENTS; DEFINITION Q: What are the elements of a quasi‐delict? A: 1. Negligent or wrongful act or omission; 2. Damage or injury caused to another; 3. Causal relation between such negligence or fault and damage; 4. No pre‐existing contractual relationship between the parties (some authorities believe this element not essential). (Art. 2176) Note: Liability for tort may arise even under a contract where tort is that which breaches the contract. (Light Rail Transit Authority et al. v. Navidad, et al., GR No. 145804, Feb. 6, 2003) If there is pre‐existing contractual relation between the parties and the same is violated, the proper cause of action is not anchored on quasi‐delict but breach of contract or culpa contractual. However, there may be cases of contractual relations where quasi‐delict may arise when the contract was grossly violated. The tort liability is not


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UST GOLDEN NOTES 2011 based on the contract of carriage but on some other bases like deliberate and malicious violation of the contract (Air France v. Carroscoso, G.R. No. L‐21438, Sept. 28, 1966).

Q: When is a person liable for a quasi‐delict? A: He is liable for such when, by his act or omission, he causes damage to another, there being fault or negligence, and there is no pre‐ existing contractual relationship between them. (Art. 2176, NCC) NOTE: A single act or omission may give rise to two or more causes of action. Thus, an act or omission may give rise to an action based on delict, quasi‐ delict or contract. In negligence cases, prior conduct should be examined, that is, conduct prior to the injury that resulted, or in proper case, the aggravation thereof.

Q: When is Art. 2176 (on quasi‐delict) inapplicable? A:

1.

When there was a pre‐existing contractual relation. Otherwise, what results is a breach of contract.

Note: However, if the act that breaches the contract is tortuous, the pre‐existing contractual relation will not bar the recovery of damages (Singson v. BPI, G.R. No. L‐24837, June 27, 1968)

2.

3.

When the fault or negligence is punished by law as a crime. Art. 100 of RPC shall be applicable If the action for quasi‐delict is instituted after four (4) years, it is deemed prescribed.

4.

When the injury suffered by a person is the result of a fortuitous event without human intervention.

5.

If there is no damage or injury caused to another.

(2) DISTINGUISHED FROM CULPA CONTRACTUAL AND CULPA CRIMINAL Q: Distinguish quasi delict from culpa contractual and culpa criminal. A: CULPA CONTRACTUAL CULPA AQUILIANA Civil Negligence, Quasi‐Delict, Contractual Negligence Tort, or Culpa Extra‐Contractual Proof Needed Preponderance of evidence

Preponderance of evidence

CULPA CRIMINAL Criminal Negligence Proof of guilt beyond reasonable doubt

Onus Probandi Contracting party must prove: 1. The existence of the contract; 2. The breach thereof.

Exercise of extraordinary diligence (in contracts of carriage), Force majeure

Victim must prove: 1. The damage suffered; 2. The negligence of the defendant; 3. The causal connection between the damage and the negligence. Defense Available Exercise of diligence of a good father of a family in the selection and supervision of employees

Prosecution must prove the guilt of the accused beyond reasonable doubt.

Defenses provided for under the Revised Penal Code.

Existence of Contract between the Parties There is pre‐existing contract

No pre‐existing contract

No pre‐existing contract

Note: The result in the criminal case, whether acquittal, or conviction is irrelevant in the independent civil action under the Civil Code (Dionisio vs Alyendia, 102 Phil 443, ’57, cited in Mckee vs IAC, 211 SCRA 536) unless acquittal is based on the court’s declaration that the fact from which the civil action arose did not exist, hence the dismissal of criminal action carries with the extinction of the civil liability. (Andamo vs IAC, 191 SCRA 204, ’90 J. Fernan)

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TORTS AND DAMAGES a. b.

B. INDIRECT LIABILITY FOR INTENTIONAL ACTS See Vicarious Liability. C. PRESUMPTION OF NEGLIGENCE ON PERSONS INDIRECTLY RESPONSIBLE Q: What is the presumption of negligence on persons indirectly responsible? A: The presumption of law is that there was negligence on the part of the master or employer either in the selection of the servant or employee (culpa in eligiendo) or in the supervision over him after the selection (culpa vigilando), or both. Note: The presumption is juris tantum and not juris et de jure; subsequently, it may be rebutted. Accordingly, if the employer shows to the satisfaction of the court that in the selection and supervision of his employee he has exercised the care and diligence of a good father of a family, the presumption is overcome and he is relieved of the liability.

D. NATURE OF LIABILITY; JOINT OR SOLIDARY Q: What is the principle of vicarious liability or law on imputed negligence? A: Under Art. 2180, a person is not only liable for torts committed by him, but also for torts committed by others with whom he has a certain relation or for whom he is responsible. Q: What is the nature of the responsibility of a vicarious obligor? A: His liability is primary and direct, not subsidiary. He is solidarily liable with the tortfeasor. His responsibility is not conditioned upon the insolvency of or prior recourse against the negligent tortfeasor (De Leon Brokerage v. CA, G.R. 15247, Feb. 28, 1962) Q: Who are the persons vicariously liable? A: F‐GOES‐T 1. Father, or in case of death or incapacity, mother: a. damage caused by minor children b. living in their company 2. Guardians: a. for minors or incapacitated persons b. under their authority c. living in their company and managers of 3. Owners establishments:

4.

5.

6.

for their employees in the service of the branches in which they are employed, or; c. on the occasion of their functions Employers: a. damages caused by employees and household helpers b. acting within the scope of their assigned tasks c. even if the employer is not engaged in any business or industry State – acting through a special agent and not when the damage has been caused by the official to whom the task done properly pertains. Teachers or heads of establishments: a. of arts and trades b. for damages caused by their pupils and students or apprentices c. so long as they remain in their custody (Art. 2180, NCC)

Q: Give the distinctions on the employer’s liability under Art 2180 NCC and Revised Penal Code. A: a. Under the Civil Code: the liability is direct and primary (solidary),the employer may be sued even without suing the employee NOTE: Diligence of a good father is a defense. Employer is liable even if not engaged in business. Proof of negligence is by mere preponderance of evidence

b.

Under the Revised Penal Code: the liability is subsidiary

NOTE: Diligence of a good father is not a defense. Must prove employer is engaged in business. Proof beyond reasonable doubt is required.

2. IN PARTICULAR A. PARENTS Q: What is the basis of the parents’ vicarious liability? A: This liability is made natural as logical consequences of the duties and responsibilities of parents exercising parental authority which


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UST GOLDEN NOTES 2011 includes controlling, disciplining and instructing their children. In this jurisdiction the parent’s liability is vested by law (NCC and FC) which assumes that when a minor or unemancipated child living with their parent, commits a tortuous act, the parents are presumed negligent in the performance of their duty to supervise the children under their custody. A presumption which juris tantum, not juris es de jure, rebuttable‐overcome by proof having exercised and observed all the diligence of a good father of a family (diligentissimi patris familias). (Tamagro vs CA, 209 SCRA 519) Q: In the event of death or incapacity of the parents, who are liable for acts or omissions of minors? A: In default of the parents or a judicially appointed guardian, parental authority shall be exercised by the following persons in the order indicated: 1. Surviving grandparents; 2. Oldest sibling, over 21 years old unless unfit or unqualified; 3. Child’s actual custodian, over 21 years old unless unfit or disqualified. Note: Judicially adopted children are considered legitimate children of their adopting parents. Thus, adopters are civilly liable for their tortuous/criminal acts if the children live with them and are minors. As for an illegitimate child, if he is acknowledged by the father and live with the latter, the father shall be responsible. However, if he is not recognized by the putative father but is under the custody and supervision of the mother, it is the latter who is the one vicariously liable (Pineda, p.87, 2009 ed).

B. GUARDIAN Q: Who is a minor under this article? A: Minors here refer to those who are below twenty‐one (21) years and not to those below 18 years. The law reducing the majority age from 21 to 18 years did not amend these paragraphs. (Art. 236 Family Code as amended by RA No. 6809) (Pineda, pp. 81‐82, 2009 ed.) Q: Are de facto guardians covered by Art. 2180? A: Yes, the law should be applied by analogy. De facto guardians are relatives and neighbors who take upon themselves the duty to care and support orphaned children without passing through judicial proceedings. (Pineda, p.88, 2009 ed.)

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C. OWNERS AND MANAGERS OF ESTABLISHMENTS AND ENTERPRISES Q: In what sense do the terms “owners and managers” used? A: They are used in the sense of “employer” and do not include the manager of a corporation who himself is just an employee (Phil. Rabbit Bus Lines v. Phil. American Forwarders, Inc., G.R. No. L‐ 25142, Mar. 25, 1975). Q: What is the extent of liability for damage of owners and managers of establishments? A: They are liable for damage caused by their employees in the service of the branches in which they are employed, or on the occasion of their functions. D. EMPLOYERS (1) MEANING OF EMPLOYERS Q: Who is an employer? A: Employer includes any person acting directly or indirectly in the interest of an employer in relation to an employee and shall include the government and all its branches, subdivisions and instrumentalities, all government‐owned or controlled corporations and institutions, as well as non‐profit private institutions, or organizations. (Art. 97, P.D. 442) (2) REQUISITES Q: When is an employer liable? A: The employer is liable only if the employee was performing his assigned task at the time the injury was caused. This includes any act done by the employee in the furtherance of the interest of the employer at the time of the infliction of the injury or damage. (Aquino, T., Torts and Damages, 2005, Second Ed., p 697) (A) EMPLOYEE CHOSEN BY EMPLOYER OR THROUGH ANOTHER Q: What is required before an employer may be held liable for the act of its employees? A: 1. The employee was chosen by the employer personally or through another;


TORTS AND DAMAGES 2.

3.

The service is to be rendered in accordance with orders which the employer has the authority to give all times; That the elicit act of the employee was on the occasion or by reason of the functions entrusted to him.

Note: Before the employer’s subsidiary liability is exacted, there must be proof that: 1. they are indeed the employer’s of the convicted employee 2. the former are engaged in some kind of industry 3. the crime was committed by the employees in the discharge of their duties 4. that the execution against the latter has not been satisfied due to insolvency.

(B) SERVICES RENDERED IN ACCORDANCE WITH ORDERS WHICH EMPLOYER HAS AUTHORITY TO GIVE See discussion below. (C) ILLICIT ACT OF EMPLOYEE WAS ON THE OCCASION OR BY REASON OF THE FUNCTIONS ENTRUSTED TO HIM Q: Is it required that the employee must be performing his assigned task at the time that the injury is caused? A: Yes. The vicarious liability of employers attaches only when the tortuous conduct of the employee relates to, or is in the course of his employment. (Valenzuela v. CA) It is not necessary that the task performed by the employee is his regular job or that which was expressly given to him by the employer. It is enough that the task is indispensable to the business or beneficial to the employer. (Filamer Christian Institute v. IAC, 212 SCRA 637) (D) PRESUMPTION OF NEGLIGENCE Q: What is the presumption on the negligence of the employer? A: The employer is presumed to be negligent and the presumption flows from the negligence of the employee. Once the employee’s fault is established, the employer can then be made liable on the basis of the presumption that the employer failed to exercise diligentissimi patris families in the selection and supervision of its

employees. (LRTA v. Navidad, G.R. 145804, Feb. 6, 2003) (3) EMPLOYER NEED NOT BE ENGAGED IN BUSINESS OR INDUSTRY Q: Is it required that the employer is engaged in some kind of industry or work? A: No. 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. For, admittedly, employees oftentimes wear different hats. They perform functions beyond their office, title or designation but which, nevertheless, are still within the call of duty. ( Castilex Industrial Corporation v. Vasquez., et al.) (4) DEFENSE OF DILIGENCE IN SELECTION AND SUPERVISION Q: What are the defenses available to an employer? A: 1. Exercise of due diligence in the selection and supervision of its employees (except in criminal action); 2. The act or omission was made outside working hours and in violation of company’s rules and regulations. Q: What are the remedies of the injured party in pursuing the civil liability of the employer for the acts of his employees? A: 1. If he chooses to file a civil action for damages based on quasi‐delict under Article 2180 and succeeds in proving the negligence of the employee, the liability of the employer is primary, direct and solidary. It is not conditioned on the insolvency of the employee (Metro Manila Transit Corp. v. CA, G.R. No. 118069, Nov. 16, 1998). 2. If he chooses to file a criminal case against the offender and was found guilty beyond reasonable doubt, the civil liability of the employer is subsidiary. The employer cannot use as a defense the exercise of the diligence of a good father of a family. Once there is a conviction for a felony, final in character, the employer under


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UST GOLDEN NOTES 2011 Article 103 of the RPC, is subsidiary liable, if it be shown that the commission thereof was in the discharge of the duties of the employee. A previous dismissal of an action based on culpa aquiliana could not be a bar to the enforcement of the subsidiary liability required by Art. 103 RPC. (Jocson, et al. v. Glorioso, G.R. L‐ 22686, Jan. 30, 1968) (Pineda, pp. 101‐ 102, 2009 ed.)

Q: What are the aspects of liability of the State? A: 1. Public/Governmental – where the State is liable only for the tortuous acts pf its special agents. 2. Private/Non‐governmental – when the State is engaged in private business or enterprise, it becomes liable as an ordinary employer.

Q: Would the defense of due diligence in the selection and supervision of the employee available to the employer in both instances? A: The defense of diligence in the selection and supervision of the employee under Article 2180 of the Civil Code is available only to those primarily liable thereunder, but not to those subsidiary liable under Article 103 of the Revised Penal Code. (Yumul v. Juliano, G.R. No. 47690, Apr., 28, 1941) (1997 Bar Question) (5) NATURE OF EMPLOYER’S LIABILITY Q: What is the nature of the employer’s vicarious liability? A: If based on culpa aquiliana under Art. 2176 and 2180 of the Civil Code, the liability is primary, while that under Art. 103 of the Revised Penal Code is subsidiary. E. STATE Q: When is the State liable for the acts of others? A: The State is only liable for the negligent acts of its officers, agents and employees when they are acting as special agents. The State has voluntarily assumed liability for acts done through special agents.

Note: If the special 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 the tortuous acts of said agent. If the State commissioned a private individual to perform a special governmental task, it is acting through a special agent within the meaning of the provision.

NOTE: The State assumes the role of an ordinary employer and will be held liable for the special agent’s torts (Fontanilla vs Malianan)

Q: Who is a special agent? A: A special agent is one who receives a definite and fixed order or commission, foreign to the exercise of the duties of his office. An employee who on his own responsibility performs functions inherent in his office and naturally pertaining thereto is not a special agent

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F. TEACHERS AND HEADS OF ESTABLISHMENTS OF ARTS AND TRADES Q: What is the basis of the teacher’s vicarious liability? A: The basis of the teacher’s vicarious liability is, as such, they acting in Loco Parentis (in place of parents). However teachers are not expected to have the same measure of responsibility as that imposed on parent for their influence over the child is not equal in degree. The parent can instill more lasting discipline more lasting disciple on the child than the teacher and so should be held to a greater accountability than the teacher or the head for the tort committed by the child. Q: When are teachers and heads of schools liable? A: GR: The teacher‐in‐charge is liable for the acts of his students. XPN: In the case of establishments of arts and trades, it is the head thereof, and only he, who shall be liable. (Amadora v CA, 160 SCRA 315) Note: There is really no substantial difference distinction between the academic and non‐academic schools in so far as torts committed by their students are concerned. The same vigilance is expected from the teacher over the student under their control and supervision, whatever the nature of the school where he is teaching.


TORTS AND DAMAGES Q: When is a student considered in the custody of the school authorities? A: 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 ended, or has ended or has not yet begun. The term “custody” signifies that the student is within the control and influence of the school authorities. The teacher in charge is the one designated by the dean, principal, or other administrative superior to exercise supervision over the pupils or students in the specific classes or sections to which they are assigned. It is not necessary that at the time of the injury, the teacher is physically present and in a position to prevent it. C. JOINT TORTFEASORS Q: Who are joint tortfeasors? A: All the persons who command, instigate, promote, encourage, advice, countenance, cooperate in, aid, or abet the commission of a tort, or who approve it after it is done, if done for their benefit; they are each liable as a principal, to the same extent and in same manner as if they have performed the wrongful act themselves. IV. ACT OR OMISSION AND ITS MODALITIES A. CONCEPT OF ACT Q: What is an act? A: Any bodily movement tending to produce some effect in the external world, it being unnecessary that the same be actually produced, as the possibility of its production is sufficient. (People v. Gonzales, 183 SCRA 309, 324)

V. PROXIMATE CAUSE A. CONCEPT 1. DEFINITION Q: What is proximate cause? A: An act from which an injury results as a natural, direct, uninterrupted consequence and without which the injury would not have occurred. 2. TEST Q: What are the tests to determine whether a cause is proximate? A: 1. Cause‐In‐Fact Test – It is necessary that there is proof that defendant’s conduct is a factor in causing plaintiff’s damage. Determines whether the defendant’s act or omission is a causally relevant factor a. But For Test / Sine Qua Non Test b. Substantial Factor Test c. Necessary and Sufficient Test (NESS) – The act or omission is a cause‐in‐fact if it is a necessary element of a sufficient set. 2. Policy test – The law limits the liability of the defendant to certain consequences of his action; if the damage or injury to the plaintiff is beyond the limit of the liability fixed by law, the defendant’s conduct cannot be considered the proximate cause of the damage. NOTE: Such limit of liability is determined by applying these subtests of the policy test: a. Foreseeability Test; b. Natural and Probable Consequence Test; c. Natural and Ordinary or Direct Consequences Test; d. Hindsight Test; e. Orbit of Risk Test; f. Substantial Factor Test.


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UST GOLDEN NOTES 2011 3. DISTINGUISHED FROM IMMEDIATE CAUSE, INTERVENING CAUSE, REMOTE AND CONCURRENT Q: Distinguish proximate, immediate intervening remote and concurrent causes. A: PROXIMATE CAUSE

INTERVENING CAUSE

One that destroys the It is the cause which, in causal connection between natural and continuous sequence, unbroken by the negligent act and injury and thereby negatives any efficient intervening liability. cause, produces the injury, and without which Note: Foreseeable Intervening the result would not have causes cannot be considered occurred. sufficient intervening causes

REMOTE CAUSE

CONCURRENT CAUSE

That cause which some independent force merely took advantage of to accomplish something not the natural effect thereof.

Causes brought about by the acts and omissions of third persons which makes the defendant still liable. Here, the proximate cause is not necessarily the sole cause of the accident

B. CAUSE IN FACT 1. BUT FOR

C. LEGAL CAUSE 1. NATURAL AND PROBABLE CONSEQUENCES

Q: What is the “but for” test? A: It considers whether the injury would not have occurred but for the defendant's negligent act. Defendant’s conduct is the cause in fact of the injury if the damage would not have resulted had there been no negligence on the part of the defendant. 2. SUBSTANTIAL FACTOR TEST Q: What is the substantial factor test? A: It makes the negligent conduct the cause‐in‐ fact of the damage if it was a substantial factor in producing the injuries. It is important in cases where there are concurrent causes 3. CONCURRENT CAUSES Q: What is the principle of concurrent causes? A: Where the concurrent or successive negligent acts or omissions of two or more persons, although acting independently, are in combination with the direct and proximate cause rd of a single injury to a 3 person, and it is impossible to determine what proportion each contributed to the injury, either of them is responsible for the whole injury, even though his act alone might not have caused the entire injury.

Q: Explain natural and foreseeable test. A: Where the defendant’s liability is recognized only if the harm or injury suffered is the natural and probable consequence of his act or omission complained of. (Banzon v. CA, 175 SCRA 297) 2. FORESEEABILITY Q: Explain the foreseeability test. A: Where the particular harm was reasonably foreseeable at the time of the defendant’s misconduct, his act or omission is the legal cause thereof. To be negligent, the defendant must have acted or failed to act in such a way that an ordinary reasonable man would have realized that certain interests of certain persons were unreasonably subjected to a general but definite class of risk which made the actor’s conduct negligent, it is obviously the consequence for the actor must be held legally responsible. D. EFFICIENT INTERVENING CAUSE Q: What is an efficient intervening cause? A: It is one which destroys the causal connection between the negligent act and the injury and thereby negatives liability (novus actus interviens). Q: When is there no efficient intervening cause? A: If the force created by the negligent act or omission have either: 1. remained active itself;

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TORTS AND DAMAGES 2.

3.

created another force which remained active until it directly caused the result; or created a new active risk of being acted upon by the active force that caused the result E. CAUSE VS. CONDITION

Q: Distinguish cause and condition. A: Cause is the active force while condition is the passive situation. The former is the active “cause” of the harm and the latter is the existing “conditions” upon which the cause operated. Note: If the defendant has created only a passive static condition which made the damage possible, the defendant is said not to be liable. F. LAST CLEAR CHANCE Q: What is the doctrine of last clear chance? A: The contributory negligence of the party injured will not defeat the claim for damages if it is shown that the defendant could, by the exercise of reasonable care and prudence, have avoided the consequences of the negligence of the injured party. Q: What are the requisites of the doctrine of last clear chance? A: 1. Both plaintiff and defendant were negligent. (This is an exception to concurrent negligence rule); 2. Plaintiff was in a position of danger by his own negligence; 3. Defendant knew of such position of the plaintiff; 4. Defendant had the last clear chance to avoid the accident by exercise of ordinary care but failed to exercise such last clear chance; 5. Accident occurred as proximate cause of such failure. Q: Is the doctrine of last clear chance applicable in case of collision? A: Yes. In case of collision, it applies in a suit between the owners and drivers of colliding vehicles and not where a passenger demands responsibility from the carrier to enforce its contractual obligations.

Note: There is a different rule in case of collision of vessels.

Q: What are the instances when the doctrine of last clear chance is inapplicable? A: 1. The party charged is required to act instantaneously, and the injury cannot be avoided by the application of all means at hand after the peril is or should have been discovered; (Pantranco North Expressway v. Baesa, G.R. Nos. 79050‐51, Nov. 14, 1989) 2. If the defendant’s negligence is a concurrent cause and which was still in operation up to the time the injury was inflicted; 3. Where the plaintiff, a passenger, filed an action against a carrier based on contract; (Bustamante v. CA, G.R. No. 89880, Feb. 6, 1991) 4. If the actor, though negligent, was not aware of the danger or risk brought about by the prior fraud or negligent act; 5. In case of a collapse of a building or structure. (De Roy v. CA, G.R. No. L‐ 41154, Jan. 29, 1988) (Pineda, p.60, 2009 ed.) Q: What are the alternative views regarding the doctrine of last clear chance? A: 1. Prevailing view: The law is that the person who has the last fair chance to avoid the impending harm and fails to do so is chargeable with the consequences, without reference to the prior negligence of the other party. 2. Minority view: The last clear chance doctrine is inapplicable in Philippine jurisdiction in determining the proximate cause of the accident. 3. Third view: That the doctrine of comparative negligence and the last clear chance doctrine are not inconsistent with each other.


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UST GOLDEN NOTES 2011 VI. LEGAL INJURY A. CONCEPT Q: What is injury as distinguished from damage? A: Injury is the illegal invasion of a legal right while damage is the loss, hurt or harm. Injury refers to any indeterminate right or property, but also to honor and credit. B. ELEMENTS OF RIGHT Q: What is a right? A: It is a legally enforceable claim of one person against another, that the other shall do a given act, or shall not do a given act (Pineda, Persons, p. 23) Q: What are the kinds of rights? Distinguish. A: 1. Natural Rights – Those which grow out of the nature of man and depend upon personality. E.g. right to life, liberty, privacy, and good reputation. 2. Political Rights – Consist in the power to participate, directly or indirectly, in the establishment or administration of government. E.g. right of suffrage, right to hold public office, right of petition. 3. Civil Rights – Those that pertain to a person by virtue of his citizenship in a state or community. E.g. 1. property rights, 2. marriage, 3. equal protection of laws, 4. freedom of contract, trial by jury. (Pineda, Persons, p. 24) 5. Rights of personalty or human rights; 6. Family rights; and 7. Patrimonial rights: i. Real rights ii. Personal rights. (Rabuya Persons, p. 19)

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C. VIOLATION OF RIGHT OR LEGAL INJURY Q: What are the available remedies for a person whose rights have been violated? A: Legal remedies are either preventive or compensatory. Every remedy in a certain sense is preventive because it threatens certain undesirable consequences to those who violate the rights of others. The primary purpose of a tort action is to provide compensation to a person who was injured by the tortuous conduct of the defendant. The remedy of the injured person is therefore primarily an action for damages against the defendant. (Aquino, p.20, 2005 ed.) D. CLASSES OF INJURY 1. INJURY TO PERSONS Q: What are the torts committed against persons? A: 1. assault, 2. battery, 3. false imprisonment, 4. intentional infliction of emotional distress, and 5. fraud 2. INJURY TO PROPERTY Q: What are the torts committed against property? A: 1. trespass to land, 2. trespass to chattels, and 3. conversion. 3. INJURY TO RELATIONS Q: What are the torts that cause injury to relations? A: 1. Family relations a. Alienation of affection b. Loss of consortium c. Criminal conversation (adultery) 2. Social relations a. Meddling with or disturbing family relations


TORTS AND DAMAGES b.

3.

4.

Intriguing to cause another to be alienated from his friends Economic relations a. Interference with contractual relations b. Unfair competition Political relations a. Violation of right to suffrage b. Violation of other political rights (freedom of speech, press, assembly and petition, etc.) VII. INTENTIONAL TORTS A. GENERAL 1. CONCEPT

Q: What is intentional tort? A: Tort or wrong perpetrated by one who intends to do that which the law has declared wrong as contrasted with negligence in which the torfeasor fails to exercise that degree of care in doing what is otherwise permissible (Black’s Law Dictionary, th 6 edition, p. 1489). Note: Intentional torts are those which involve malice or bad faith.

2. CLASSES A. INTERFERENCE WITH PERSONS AND PROPERTY (1) PHYSICAL HARMS Q: What the kinds of physical harms? A: 1. Violation of persons security, physical injuries a. battery (physical injury) b. assault (grave threat) 2. False imprisonment (illegal detention) 3. Trespass to land 4. Interference with personal property a. trespass to chattels b. conversion (2) NON‐PHYSICAL HARMS Q: What the kinds of non‐physical harms? A: 1. Violation of personal dignity 2. Infliction of emotional distress 3. Violation of privacy

4. 5. 6.

a. Appropriation b. Intrusion c. public disclosure of private facts d. false light in the public eye Disturbance of peace of mind Malicious prosecution Defamation

B. INTERFERENCE WITH RELATIONS See Injury to Relations. B. INTERFERENCE WITH RIGHTS TO PERSONS AND PROPERTY 1. INTENTIONAL PHYSICAL HARMS A. GENERAL (1) CONCEPT (2) KINDS B. VIOLATION OF PERSONS SECURITY, PHYSICAL INJURIES (1) BATTERY (PHYSICAL INJURY) Q: What is battery as a basis for tort liability? A: It is the intentional, unprivileged, and either harmful or offensive contact with the person of another. NOTE: At common law, battery is the tort of intentionally and voluntarily bringing about an unconsented harmful or offensive contact with a person or to something closely associated with them.

Q: When is a person liable for tort based on battery? A: An actor is subject to liability to another for battery if: 1. he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and 2. a harmful/offensive contract with the person of the other directly or indirectly results Q: What are the elements of battery? A: 1. Intent 2. Harmful or offensive conduct 3. Absence of privilege


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UST GOLDEN NOTES 2011 Q: Is actual contact necessary in battery? A: No. Unlike assault, battery involves an actual contact. The contact can be by one person (the tortfeasor) of another (the victim), or the contact may be by an object brought about by the tortfeasor. For example, the intentional contact by a car is a battery. NOTE: Unlike criminal law, which recognizes degrees of various crimes involving physical contact, there is but a single tort of battery. Lightly flicking a person's ear is battery, as is severely beating someone with a tire iron. Neither is there a separate tort for a battery of a sexual nature.

Q: What are some rules in determining liability for tort based on battery? A: 1. The victim of a battery need not be aware of the act at the time for the tort to have occurred. 2. Battery is a form of trespass to the person and as such no actual damage (e.g. injury) needs to be proved. Only proof of contact (with the appropriate level of intention or negligence) needs to be made. 3. If there is an attempted battery, but no actual contact, that may constitute a tort of assault. 4. Battery need not require body‐to‐body contact. Touching an object "intimately connected" to a person (such as an object he or she is holding) can also be battery. 5. A contact may constitute a battery even if there is a delay between the defendant's act and the contact to the plaintiff's injury. Q: What are the defenses in trespass to the person which are applicable to battery? A: The standard defenses to trespass to the person are: 1. necessity, 2. consent, 3. self defense, and 4. defense of others. Note: Self defense as to battery can consist only of engaging in physical contact with another person in order to prevent the other person from themselves engaging in a physical attack. Privilege is a defense for battery. Defendant has burden to prove.

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(2) ASSAULT (GRAVE THREAT) Q: What is assault in the context of torts? A: It is the tort of acting intentionally and voluntarily causing the reasonable apprehension of an immediate harmful or offensive contact. Q: What are the elements of assault as a basis for tort liability? A: 1. An act by defendant creating a reasonable apprehension in plaintiff 2. of immediate harmful or offensive contact to plaintiff's person 3. Intent 4. Causation Q: When is an actor liable for tort based on assault? A: An actor is liable for assault if: 1. He acts intending to cause a harmful or offensive contact with the person of the other, or an imminent apprehension of such a contact, and 2. The other is thereby put in such imminent apprehension. Note: Assault requires intent. Actual ability to carry out the apprehended contact is not necessary.

Q: When is an act not considered an assault? A: An act intended as a step toward the infliction of a future contact, which is so recognized by the other, does not make the actor liable for an assault under the rule. Q: Is actual contact necessary in assault? A: No. As distinguished from battery, assault need not to involve actual contact—it only needs intent and the resulting apprehension. However, assault requires more than words alone. For example, wielding a knife while shouting threats could be construed as assault if an apprehension was created. Note: A battery can occur without a preceding assault, such as if a person is struck in the back of the head. Fear is not required, only anticipation of subsequent battery.


TORTS AND DAMAGES Q: When is contact said to be “harmful”? A: While the law varies by jurisdiction, contact is often defined as "harmful" if it objectively intends to injure, disfigure, impair, or cause pain. Q: When is an act deemed to be “offensive”? A: The act is deemed "offensive" if it would offend a reasonable person’s sense of personal dignity. Q: In what context is “imminence” understood in determining tort liability for assault? A: "Imminence" is judged objectively and varies widely on the facts, it generally suggests there is little to no opportunity for intervening acts. Q: Distinguish apprehension from fear. A: The state of "apprehension" should be differentiated from the general state of fear, as apprehension requires only that the person be aware of the imminence of the harmful or offensive act. Q: What are some defenses in assault? A: Assault can be justified in situations of self‐ defense or defense of a third party where the act was deemed reasonable. It can also be justified in situations where consent can often be implied (i.e. sports competitions). C. FALSE IMPRISONMENT (ILLEGAL DETENTION) Q: What are the elements of false imprisonment as a basis for tort liability? A: 1. An act or omission on the part of defendant that confines or restrains plaintiff 2. That plaintiff is confined or restrained to a bounded area; 3. Intent; and 4. Causation Q: When is an actor liable for false imprisonment? A: Under the law on torts, an actor is liable for false imprisonment if: 1. he acts intending to confine the other within boundaries fixed by the actor, 2. his act directly or indirectly results in such a confinement, and

3.

the other is conscious of the confinement or is harmed by it.

D. TRESPASS TO LAND (1) CONCEPT Q: What is trespass to real property? A: It is a tort that is committed when a person unlawfully invades the real property of another. Q: When may damages be awarded in deprivation of real property? A: Damages may be awarded if the real owner was deprived of possession of his property by a possessor in bad faith or by a person who does not have any right whatsoever over the property. Note: Damages may be awarded to the real owner if he suffered such damages because he was deprived of possession of his property by a possessor in bad faith or by a person who does not have any right whatsoever over the property. Anybody who builds, plants or sows on the land of another knowing full well that there is a defect in his title is liable for damages. The liability is in addition to the right of the landowner in good faith to appropriate what was built, planted or sown or to remove the same. Liability for damages under the above‐cited provisions of the RPC and the NCC requires intent or bad faith.

(2) ELEMENTS Q: Is intent or bad faith necessary for liability to attach? A: Yes, the Revised Penal Code and the New Civil Code requires intent or bad faith. Note: Chief Justice Concepcion observed however that trespass may even be committed in good faith. (Republic v. de los Angeles, G.R. L‐26112, Oct. 4, 1971)

Q: What is the extent of trespass to personal property? A: In the field of tort, trespass extends to all cases where a person is deprived of his personal property even in the absence of criminal liability. (Aquino, T., Torts and Damages, 2005, Second Ed. P.368)


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UST GOLDEN NOTES 2011 E. INTERFERENCE WITH PERSONAL PROPERTY (1) TRESPASS TO CHATTELS Q: What is trespass to chattels? A: It is where a person took possession of the property of another in bad faith. (2) CONVERSION Q: What are the elements of conversion? A: 1. An act by defendant that interferes with plaintiff's right of possession in a chattel. 2. The interference is so serious that it warrants requiring defendant to pay the chattel's full value. Q: What may be included in conversion? A: Conversion may include: 1. Cases where the defendant deprived the plaintiff of personal property for the purpose of obtaining possession of a real property, as when a landlord deprived his tenants of water in order for them to vacate the lot they were cultivating. 2. Unjustified deprivation of access to property such as unjustified disconnection of electricity service 2. INTENTIONAL NON‐PHYSICAL HARMS A. GENERAL (1) CONCEPT (2) KINDS B. VIOLATION OF PERSONAL DIGNITY Q: What is the rule with regard to the right of a person to his dignity, personality, privacy and peace of mind? A: Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief:

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1. 2. 3. 4.

Prying into the privacy of another's residence; Meddling with or disturbing the private life or family relations of another; Intriguing to cause another to be alienated from his friends; Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition. (Art. 26, NCC)

C. INFLICTION OF EMOTIONAL DISTRESS Q: What are the requisites for one to be able to recover for the intentional infliction of emotional distress? A: The plaintiff must show that: 1. The conduct of the defendant was intentional or in reckless disregard of the plaintiff; 2. The conduct was extreme and outrageous; 3. There was a causal connection between the defendant’s conduct and the plaintiff’s mental distress; and 4. The plaintiff’s mental distress was extreme and severe. Note: Even if there was no intentional infliction of emotional distress in one case, the SC recognized the possibility that one may be made liable for the tort of intentional infliction of emotional distress.

Q: What does “extreme and outrageous conduct” mean? A: It is 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. Q: What does “emotional distress” mean? A: It is 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. Note: “Severe emotional distress” in some jurisdictions, refer 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


TORTS AND DAMAGES posttraumatic stress disorder, neurosis, psychosis, chronic depression, or phobia. The plaintiff is required to show, among other things, that he or she 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. The plaintiff cannot recover merely because of hurt feelings. Liability cannot be extended to every trivial indignity. The plaintiff must necessarily be expected and required to be hardened to a certain amount of rough language, and to acts that are definitely inconsiderate and unkind.

Q: Distinguish emotional distress from defamation. A: An emotional distress tort action is personal in nature. It is a civil action filed by an individual to assuage the injuries to his emotional tranquility due to personal attacks on his character. Emotional distress properly belongs to the reactive harm principle while defamation calls for the application of the relational harm principle. NOTE: The principle of relational harm includes harm to social relationships in the community in the form of defamation as distinguished from the principle of reactive harm which includes injuries to individual emotional tranquility.

Q: What is the so called “parasitic” damage for emotional distress? A: These are damages which depend on the existence of another tort. D. VIOLATION OF PRIVACY Q: What are the zones of privacy under the NCC, RPC, Rules of Court, and special laws? A: 1. That every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons and any act of a person of meddling and prying into the privacy of another is punishable as an actionable wrong; 2. That a public officer or employee or any private individual shall be liable for damages for any violation of the rights and liberties of another person, and recognizes the privacy of letters and other private communications;

3.

The RPC makes a crime the: i. violation of secrets by an officer, ii. revelation of trade and industrial secrets, and iii. trespass to dwelling. 4. Invasion of privacy is likewise an offense in special laws such as the: i. anti‐wiretapping law; and ii. secrecy of bank deposits act; and 5. The Rules of Court provisions on privileged communication. Q: What is the standard to be applied in determining the existence of a violation of the right to privacy? A: The right to privacy is not a guaranty to hermitic seclusion. The standard to be applied is that of a person of ordinary sensibilities. It is relative to the customs of the time and place, and is determined by the norm of an ordinary person. NOTE: The essence of privacy is the right to be let alone.

Q: What is the two‐part test in determining the reasonableness of a person’s expectation of privacy? A: 1. Whether by his conduct, the individual has exhibited an expectation of privacy; and 2. Whether this expectation is one that society recognizes as reasonable. Q: What are the four general classes of tort actions for invasion of privacy? A: 1. appropriation; 2. intrusion; 3. public disclosure of private facts; and 4. false light in the public eye (1) APPROPRIATION Q: What is appropriation? A: It consists of appropriation, for the defendant’s benefit or advantage, of the plaintiff’s name or likeness.


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UST GOLDEN NOTES 2011 Q: What does this tort protect? A: The tort of commercial appropriation of likeness has been held to protect various aspects of an individual’s identity from commercial exploitation: 1. name 2. likeness 3. achievements 4. identifying characteristics 5. actual performances 6. fictitious characters created by a performer 7. phrases and other things associated with an individual. (2) INTRUSION Q: What is intrusion? A: Consists in the intrusion upon the plaintiff’s solitude or seclusion. It includes: 1. prying into the privacy of one’s home; 2. invading his home; 3. invading one’s privacy by looking from outside; 4. eavesdropping; or 5. persistent and unwanted telephone calls. NOTE: The tort of intrusion upon a person’s solitude protects a person’s sense of locational and psychological privacy.

Intrusion in public places: Generally, there is no invasion of the right to privacy when a journalist records, photographs, or writes about something that occurs in public places. However, while merely watching a person in public places is not a violation, one does not automatically make public everything that he does in public. It should not be tantamount to harassment or overzealous shadowing. This protection is not limited to public figures. Everyone is protected. Intrusion and administrative investigation: There is no intrusion when an employer investigates its employee or when a school investigates its student. In the latter case, the investigation may cover an alleged offense committed outside the school premises.

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Intrusion and public records: Generally , there is no intrusion into the right of privacy of another if the information sought are matters of public record. This is especially true in case the persons who are invoking the right to privacy are public officers and the matter involved is of public concern. However, if the matter sought to be revealed does not involve anything of public concern, there can be a violation or the right to privacy. (3) PUBLIC DISCLOSURE OF PRIVATE FACTS Q: What is public disclosure of private facts? A: Consists of a cause of action in publicity, of a highly objectionable kind, given to private information about the plaintiff, even though it is true and no action would lie for defamation. Q: What is violated in public disclosure of private facts? A: The interest sought to be protected is the right to be free from unwarranted publicity, from the wrongful publicizing of the private affairs and activities of an individual which are outside the realm of legitimate concern. Q: What are the elements of public disclosure of private facts? A: 1. there must be a public disclosure; 2. the facts disclosed must be a private fact; 3. the matter be one which would be offensive and objectionable to a reasonable person of ordinary sensibilities. Q: Who is a “public figure”? A: a person who, by his accomplishments, fame or mode of living, or by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs, and his character, has become a ‘public personage’ Q: Is it a tortuous conduct for one to publish facts derived from official proceedings? A: If the facts published are not declared by law to be confidential, it is not tortuous.


TORTS AND DAMAGES Q: Is a governmental agency or officer tasked with, and acting in, the discharge of public duties vested with a right to privacy? A: No, said right belongs only to individuals acting in a private capacity. (4) FALSE LIGHT IN THE PUBLIC EYE Q: What is false light in the public eye? A: It is a tort committed by putting a person in a false light before the public. It is a non‐ defamatory falsehood in that a false impression is conveyed. Q: What is the interest to be protected in this tort? A: The interest to be protected in this tort is the interest of the individual in not being made to appear before the public in an objectionable false light or false position. Q: How is false light in the public eye different from defamation? A: In false light, the gravamen of the claim is not reputational harm but rather the embarrassment of a person in being made into something he is not. Publication in defamation is satisfied if a letter is sent to a third person; while in false light cases, the statement should be actually made public. In defamation, what is published lowers the esteem in which the plaintiff is held. In false light cases, the defendant may still be held liable even if the statements tell something good about the plaintiff. E. DISTURBANCE OF PEACE OF MIND See Emotional Distress. F. MALICIOUS PROSECUTION Q: What is a tort action for malicious prosecution? A: It is an action for damages brought by one against another whom a a criminal prosecution, civil suit, or other legal proceedings has been instituted maliciously and without probable cause, after the termination of such prosecution, suit or proceeding in favor of defendant therein.

RE: Malice: The presence of probable cause signifies, as a legal consequence, the absence of malice.The absence of malice, therefore, involves good faith on the part of the defendant. This good faith may even be based on mistake of law. Re: Acquittal: Acquittal presupposes that a criminal information is filed on court and final judgment is rendered dismissing the case against the accused. It is not enough that the plaintiff is discharged on a writ of habeas corpus and granted bail. Such discharge is not considered the termination of the action contemplated to warrant the institution of a malicious prosecution suit against those responsible for the filing of the information against him. Nevertheless, it is believed that prior “acquittal” may include dismissal by the prosecutor after preliminary investigation.

Q: What are the elements of malicious prosecution? A: In criminal cases: 1. the fact of the prosecution and the further fact that the defendant was himself the prosecutor, and that the action was terminated with an acquittal; 2. that in bringing the action, the prosecutor acted without probable cause; 3. the prosecutor was actuated or impelled by legal malice. (Yasona v. Ramos, G.R. 156339, Oct. 6, 2004) Note: the term “prosecutor” includes the complainant who initiated the case; the prosecutor himself; any other public officer authorized to file and prosecute the criminal case. Mere witnesses are not included, but are liable for false testimony or perjury for their falsehoods. In civil cases: 1. the defendant filed a civil action against the plaintiff previously; 2. the action was dismissed for clear lack of merit or for being baseless, unfounded, and malicious; 3. the defendant who filed the previous complaint as plaintiff was motivated by ill‐ will or sinister design; 4. the present plaintiff suffered injury or damage by reason of the previous complaint filed against him.

Note: Malice and probable cause must concur. ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II U N I V E R S I T Y O F S A N T O T O M A S VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA Facultad de Derecho Civil ICE C HAIR FOR A DMINISTRATION AND F INANCE : J EANELLE C. L EE V VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 Q: When is an action for malicious prosecution premature? A: If the action filed by a party is still pending trial, the filing by the defendant of an action based on malicious prosecution anchored on the first case is premature. Its dismissal is in order. (Pineda, 2004 citing Cabacungan v. Corrales, 95 PHIL 919) Q: Is there liability for malicious prosecution in case a suit is unsuccessful? A: None. The mere filing of a suit does not render the plaintiff liable for malicious prosection should he be unsuccessful. Persons should have free resort to the courts. The law does not impose a penalty on the right to litigate. (Pineda, 2004) Note: However, the repeated filing of a complaint all of which were dismissed, shows malicious prosecution entitling the injured party to an award of moral damages. (Pineda, 2004 citing Hawpia v. CA, 20 SCRA 536)

G. DEFAMATION Q: What is defamation and what does it cover? A: Defamation is tarnishing the reputation of someone; It is a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead. (Art. 353, RPC). It has two varieties, slander and libel. Note: Actual damages need not be proved, at least where the publication is libelous per se, or where the amount of damages is more or less nominal.

Q: What are the elements of defamation as a basis for tort liability? A: 1. Defamatory language; 2. of or concerning the plaintiff; 3. Publication thereof by defendant to a third person; and 4. Damage to plaintiff's reputation. Note: “Publication” is the communication of the defamatory matter to some third person or persons.

Q: What is libel? A: it is a defamation committed by means of writing, printing, lithography, engraving, radio,

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phonograph, painting or theatrical or cinematographic exhibition, or any similar means. Q: What is slander? A: An oral defamation. Q: What is slander by deed? A: It is a crime committed by any person who performs an act that costs dishonor, discredit or contempt upon the offended party in the presence of other person or persons. Q: Is the imputation of criminal intention libelous? A: No, because intent to commit a crime is not a violation of law. (1) DEFENSES (A) ABSENCE OF ELEMENTS Q: Is the allegation that the offender merely expresses his opinion or belief a defense in defamation cases? In order to escape criminal responsibility, it is not enough for the offender to say that he expresses therein no more than his opinion or belief. The communication must be made in the performance of a “legal, moral, or social duty.” Q: What is retraction and what is its effect as regards liability for defamation? A: When a periodical gives currency, whether innocently or otherwise, to a false and defamatory statement concerning any person, it is under both a legal and moral duty to check the propagation of such statement as soon as practicable by publishing a retraction. Retraction may mitigate the damages provided that it contains an admission of the falsity of the libelous publication and evince a desire to repair the wrong occasioned thereby. Q: What is the effect if the publication was by reason of an honest mistake? A: It only serves to mitigate liability where the article is libelous per se.


TORTS AND DAMAGES (B) PRIVILEGE Q: If the defamatory imputations were made in a privileged communication, is there liability therefor? A: None. An absolutely privileged communication is one for which, by reason of the occasion on which it is made, no remedy is provided for the damages in a civil action for slander or libel. H. FRAUD OR MISREPRESENTATION (FORMERLY DECEIT) Q: What are the elements of misrepresentation in torts cases? A: 1. Affirmative misrepresentation of a material fact; 2. Defendant knew that statement being made was false; 3. Intent; 4. Causation; 5. Justifiable reliance; and 6. Damages I. SEDUCTION Q: When is a defendant liable for damages in case of seduction? A: Seduction, by itself, is an act which is contrary to morals, good customs and public policy. The defendant is liable if he employed deceit, enticement, superior power or abuse of confidence in successfully having sexual intercourse with another. Note: There is liability even if there is no breach of promise to marry.

Q: What is included in “sexual assault”? A: The defendant would be liable for all forms of sexual assault. These include rape, acts of lasciviousness and seduction. NOTE: Gender is immaterial in seduction and sexual assault. J. UNJUST DISMISSAL Q: What is the rule on dismissal of employees? A: It is a basic rule that an employer has a right to dismiss an employee in the manner and on the grounds provided for under the NCC. If the dismissal is for a valid cause, his dismissal is

consistent with the employer’s right to protect his interest in seeing to it that his employees are performing their jobs with honesty, integrity and good faith. However, such exercise of the right to terminate must be consistent with the general principles provided for under articles 19 and 21, NCC. If there is non‐compliance with said provisions, the employer may be held liable for damages. The right to dismiss an employee should not be confused with the manner in which the right is exercised and the effects flowing therefrom. If the dismissal is done anti‐socially or oppressively then the employer should be deemed to have violated article 1701, NCC (which prohibits acts of oppression by either capital or labor against the other) and article 21. An employer may be held liable for damages if the manner of dismissing the employee is contrary to morals, good customs and public policy. This may be done by false imputation of misdeed to justify dismissal or any similar manner of dismissal which is done abusively. C. INTERFERENCE WITH RELATIONS 1. GENERAL A. CONCEPT B. KINDS Q: What are the four kinds of interference? A: Interference with: 1. Family relations; 2. Social relations; 3. Economic relations; and 4. Political relations. 2. FAMILY RELATIONS A. ALIENATION OF AFFECTION Q: What is alienation of affection? A: This consists of depriving one spouse of the affection, society, companionship and comfort of the other. (Aquino, T., Torts and Damages, 2005, Second Ed., p.480) Note: The Family Code imposes on the spouses the obligation to live together, observe mutual love, respect and fidelity, and render mutual help and support. (Article 68) Interference with such


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UST GOLDEN NOTES 2011 may result in the tort liability of alienation of affection. The gist of the tort is an interference with one spouse’s mental attitude toward the other and the conjugal kindness of marital relations resulting in some actual conduct which materially affects it. Q: In general, what is the scope of the tort ‘alienation of affections’? A: It extends to all cases of wrongful interference in the family affairs of others whereby one spouse is induced to leave the other spouse or to conduct himself or herself in a manner that the comfort of married life is destroyed. Q: Who may be liable for alienation of affections? A: The defendant who purposely entices the spouse of another, to alienate his or her affections with his or her spouse, even if there are no sexual intimacies is liable for damages under this article. Likewise, a person who prevented the reconciliation of spouses after their separation is liable for alienation of affections. Note: It is not necessary that there is adultery or the spouse is deprived of household services.

Q: What are some cases where there is no tort liability for alienation of affections? A: 1. A woman cannot be made liable for alienation of the affections of the husband (of another woman) for being merely the object of the affections of said husband. To be liable, she must have done some active acts calculated to alienate the affections of the husband. She must, in a sense, be the “pursuer, not merely the pursued”; 2. A prostitute is not liable for alienation of affections of the husband for having sexual intimacies with him on a chance occasion. 3. When there is no more affection to alienate. Q: May parents be liable for alienation of affections? A: Yes. However, parents are presumed to act for the best interest of their child. The law recognizes the right of a parent to advise his/her child and when such advise is given in good faith, the act,

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even if it results in separation, does not give the injured party a right of action. In such case, malice must be established and it must appear that the defendant’s acts were the controlling cause of the loss of affection. B. LOSS OF CONSORTIUM Q: What is loss of consortium? A: A spouse has a legal obligation to live with his or her spouse. If a spouse does not perform his or her duty to the other, he may be held liable for damages for such omission because the same is contrary to law, morals and good customs. Moral damages were awarded because of the wife’s refusal to perform her wifely duties, her denial of consortium and desertion of her husband. Her acts constitute a willful infliction of injury upon her husband’s feelings in a manner contrary to morals, good customs or public policy. (Tenchaves v. Escaño, G.R. No. L‐19671, July 26, 1966) C. CRIMINAL CONVERSATION (ADULTERY) Q: When is adultery committed? A: Adultery is committed by any married woman who shall have sexual intercourse with a man not her husband and by the man who has carnal knowledge of her knowing her to be married, even if the marriage was subsequently declared void. (Art. 333, RPC) Note: Concubinage is committed by a husband who shall: 1. keep a mistress in the conjugal dwelling; 2. have sexual intercourse with her, under scandalous circumstances, with a woman not his wife; or 3. cohabit with her in any other place. (Art. 334, RPC) Liability for adultery or concubinage based on the law on torts: not only moral damages but also for other appropriate damages. No moral damages is due in case of bigamy.


TORTS AND DAMAGES 3. SOCIAL RELATIONS A. MEDDLING WITH OR DISTURBING FAMILY RELATIONS See Interference with family relations. B. INTRIGUING TO CAUSE ANOTHER TO BE ALIENATED FROM HIS FRIENDS Q: Who may be held liable for the tort intriguing to cause another to be alienated from his friends? A: A person who committed affirmative acts intended to alienate the existing friendship of one with his friends is liable for damages. (Pineda, 2004) 4. ECONOMIC RELATIONS A. INTERFERENCE WITH CONTRACTUAL RELATIONS Q: What is interference with contract? A: Any third person who induces another to violate his contract shall be liable for damages to the other contracting parties. (Art.1314, NCC) Q: Why is interference with contract tortuous? A: Such interference is tortious because it violates the right of the contracting parties to fulfill the contract and to have it fulfilled, to reap the profits resulting therefrom, and to compel the performance by the other party. Q: What are the elements of interference to contractual realation? A: 1. existence of a valid contract; 2. knowledge on the part of the third person of the existence of the contract; 3. interference of the third person without legal justification or excuse. Q: What is interference with prospective advantage? A: If there is no contract yet and the defendant is only being sued for inducing another not to enter into a contract with the plaintiff, the tort committed is appropriately called interference with prospective advantage.

Q: What is the extent and nature of the liability of the intermeddler? A: His liability is solidary and cannot be more than the liability that will be incurred by the party in whose behalf he intermeddled. Otherwise, that will result in injustice and unfairness. Q: Is malice essential to make the intermeddler liable? A: GR: Yes. XPN: If the intention of the intermeddler is honest and laudable such as when the interference is intended to protect the contracting party he is intermeddling for, from danger to his life or property, he should not be made liable for damages for the breach of the contract. B. UNFAIR COMPETITION Q: What is included in unfair competition? A: Art. 28, NCC provides for unfair competition which includes: 1. Passing off or disparagement of products 2. Interference with contractual relations 3. Interference with prospective advantage 4. Fraudulent misappropriation against a competition 5. Monopolies and predatory pricing Q: What is predatory pricing? A: It is a practice of selling below costs in the short run in the hope of obtaining monopoly gains later, after driving the competition from the market. 5. POLITICAL RELATIONS A. VIOLATION OF RIGHT TO SUFFRAGE (NCC, ART. 32) Q: What is the rule in case of violation of the right to suffrage? A: Under Article 32 NCC, 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: xxx (5) Freedom of suffrage; (Art. 32, NCC)


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UST GOLDEN NOTES 2011 B. VIOLATION OF OTHER POLITICAL RIGHTS (FREEDOM OF SPEECH, PRESS, ASSEMBLY AND PETITION, ETC.) See Violation of Constitutional Rights 6. DEFENSES A. ABSENCE OF ELEMENT Q: What is the defense on interference? A: The defendants are free from liability if they can prove that at the time of the commission, the plaintiff knew of the act of interference or omission. B. PRIVILEGE Q: What is the defense of privilege in torts cases? A: To say that an act is “privileged” connotes that the actor owes no legal duty to refrain from such contact. Q: Distinguish consensual and non‐consensual privilege. A: Consensual privileges depend on the plaintiff agreeing to the defendant’s otherwise tortious act. On the other hand, nonconsensual privileges shield the defendant from liability for otherwise tortious conduct even if the plaintiff objects to the defendant’s conduct. 1. CONSENT Q: When is consent a defense in torts cases and what is its basis? A: Typically, one cannot hold another liable in tort for actions to which one has consented. This is frequently summarized by the phrase "volenti non fit injuria" (Latin: "to a willing person, no injury is done" or "no injury is done to a person who consents"). It operates when the claimant either expressly or implicitly consents to the risk of loss or damage. Note: Consent is willingness in fact for the conduct to occur.

Q: What are some rules in determining whether consent is present as a defense? A: 1. It need not be communicated to the defendant.

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2.

In determining whether plaintiff consented, defendant must reasonably interpret her overt act and manifestations of her feelings. Note: The defendant’s subjective state is based on the plaintiff’s objective actions.

3.

Plaintiff has burden of proof to show intent to commit the act, lack of consent, and harm.

Q: Is consent a defense if the plaintiff or offended party is a minor? A: No. For one to surrender the right to be free from intentional interference by others, one must have the mental capacity to consent. Defendant can be liable despite the fact that the plaintiff was subjectively willing and communicated that willingness to the defendant. NOTE: In common law countries, most courts have applied statutory rape statutes in civil cases regardless of proof that the plaintiff was able to understand the consequences of her act and consent.

Q: When is consent not necessary in order to absolve one from the injuries he caused to another? A: Conduct that injures another does not make the actor liable to the other, even though the other has not consented to it if: 1. an emergency makes it necessary or apparently necessary to act before there is opportunity to obtain consent or one empowered to consent for him, and 2. the actor has no reason to believe that the other would decline. Q: What is the rule if consent is procured by fraud or duress? A: Consent will not shield the defendant from liability if it is procured by means of fraud or duress. Note: Courts invalidate consent procured by duress when defendants threaten the plaintiff or plaintiff’s loved ones with physical harm.


TORTS AND DAMAGES 2. SELF‐DEFENSE AND DEFENSE OF OTHERS

Note: A party claiming self‐defense must prove not only that he acted honestly in using force, but that his fears were reasonable under the circumstances, and the means of self‐defense were reasonable.

SELF DEFENSE Q: Why is self defense a defense in tort cases? A: An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to defend himself against unprivileged harmful contract which he reasonably believes that another is about to inflict. Q: When is an actor privileged to defend himself? A: An actor is privileged to defend himself against another by force likely to cause death or serious bodily harm when he reasonably believes that: 1. the other is about to inflict upon him an intentional contact and 2. he is thereby put in peril of death or serious bodily harm which can safely be prevented only by immediate use of such force.

Q: Is a person protecting a total stranger liable? A: The self‐defense privilege extends to protecting total strangers as well. Q: May the intervener use any means or amount of force in defending the other? A: No. The force that may be used by an intervener to repel an attack on another is measured by the force that the other could lawfully use. Q: What is the consequence of a mistake on the part of the intervener? A: If the intervener is mistaken, even reasonably mistaken, the privilege is unavailable if it would not be available to the person to be protected.

NOTE: Court requires objective and subjective belief (reasonable person could have seen the situation as dangerous and subject believed that he was in danger).

NOTE: The intervener’s mistake need only be reasonable; there is no need to show that the victim also had the privilege to defend himself.

Q: When does the privilege of self defense exist and when does it not exist? A: The privilege exists even if the actor believes he can avoid defending himself by: 1. retreating within his dwelling place, or 2. permitting the other to intrude upon his dwelling place, or 3. abandoning an attempt to effect a lawful arrest. The privilege does not exist if the actor believes that he can avoid defending himself by: 1. retreating in any place other than his dwelling place or 2. relinquishing the exercise of any right other than his privilege to prevent intrusion onto his dwelling place. Q: May the actor use any means in order to defend himself? A: The actor is not privileged to use any means of self defense which is intended or likely to cause a bodily harm in excess of that which the actor correctly or reasonably believes to be necessary for his protection.

3. DEFENSE OF PROPERTY Q: Up to what extent is an actor privileged to defend his property from intrusions? A: An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to prevent or terminate another’s intrusion upon the actor’s land if: 1. the intrusion is not privileged; 2. the actor reasonably believes that the intrusion can be prevented only by the force used; and 3. the actor has first requested the other to desist or the actor believes such request will be useless or substantial harm will be done before it can be made.

DEFENSE OF OTHERS

Note: The intentional infliction which is intended or likely to cause death or serious bodily harm, for the purpose of preventing or terminating the other’s intrusion upon the actor’s possession of land, is privileged only if the actor reasonably believes that the intruder is likely to cause death or serious bodily harm.


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UST GOLDEN NOTES 2011 4. NECESSITY The owner or lawful possessor of a thing has the right to exclude any person from the enjoyment and disposal thereof. For this purpose, he may use such force as may be reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his property. (Art. 429, NCC) Q: Is the owner’s right provided for in the said article an absolute right? A: No. In the following instances, this right may not be invoked by the owner: 1. One may sacrifice the personal property of another to save his life or the lives of his fellows; 2. One is privileged by necessity to trespass when there is a serious threat to life and no other lifesaving option is available; and 3. The owner of property may not eject a trespasser if the trespasser requires entry to protest himself and his property from harm. Note: In these instances, intrusion is said to be privileged. The necessity privilege to enter the land of another in order to avoid serious harm is coupled with an obligation on the part of the entrant to pay for whatever harm he caused.

MISCELLANEOUS PRIVILEGES Q: What are the miscellaneous or other privileges in connection with necessity as a defense? A: 1. To at least some extent, teachers and parents are exempt from battery claims brought on behalf of children they have physically disciplined; 2. Other privileges include those relating to the arrest of lawbreakers and the prevention of crime, the enforcement of military orders, and the recapture of land and possessions. Note: The reasonableness of the actor’s perception of the need to use force, as well as the reasonableness of the harm actually inflicted, are typically the touchstones upon which the availability of the privilege turns.

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5. AUTHORITY OF LAW C. PRESCRIPTION See Defenses; Prescription D. WAIVER See Persons: Waiver of Rights E. FORCE MAJEURE Q: What are the two general causes of fortuitous events? A: 1. By nature, such as earthquakes, storms, floods, epidemics, fires, etc.; and 2. By the act of man, such as an armed invasion, attack by bandits, governmental prohibitions, robbery, etc. Q: What are the essential characteristics of fortuitous event? A: 1. The cause of the unforeseen and unexpected occurrence, or of the failure of the debtor to comply with his obligation, must be independent of the human will; 2. It must be impossible to foresee the event which constitutes the caso fortuito, or if it can be foreseen, it must be impossible to avoid; 3. The occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a normal manner; and 4. The obligor must be free from any participation in the aggravation of the injury resulting to the creditor. Q: When is there liability for damages caused by fortuitous events? A: As an exception to the general rule that a person is not liable if the cause of the damage was an event which could not be foreseen or which though foreseen was inevitable (fortuitous), if the negligence of the defendant concurred with the fortuitous event or resulted in the aggravation of the injury to the plaintiff, he will be liable even if there was a fortuitous event. If upon the happening of a fortuitous event of an act of God, there concurs a corresponding fraud,


TORTS AND DAMAGES negligence, delay or violation or contravention of the tenor of the obligation as provided for in Article 1170, NCC, which results in loss or damage, the obligor cannot escape liability. VIII. NEGLIGENCE A. CONCEPT Q: What is negligence? A: The omission of that degree of diligence which is required by the nature of the obligation and corresponding to the circumstances of the persons, of the time and place. (Art. 1173, NCC) Q: What is the test of negligence? A: The test is: Would a prudent man, in the position of the tortfeasor, foresee harm to the person injured as a reasonable consequence of the course about to be pursued? If so, the law imposes a duty on the actor to take precaution against its mischievous results, and failure to do so constitutes negligence. (Picart v. Smith, G.R. No. L‐12219, Mar. 15, 1918.) Q: What are the degrees of negligence? Distinguish. A: 1. Simple negligence – want of slight care and diligence only 2. Gross negligence – there is a glaringly obvious want of diligence and implies conscious indifference to consequences; pursuing a course of conduct which would probably and naturally result to injury; utter disregard of the consequences Q: What are the circumstances to be considered in determining whether an act is negligent? A: 1. Person Exposed to the Risk – A higher degree of diligence is required if the person involved is a child. 2. Emergency – The actor 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.

3.

4.

5.

6.

7.

8.

9.

Social Value or Utility of Action – Any act subjecting an innocent person to unnecessary risk is a negligent act if the risk outweighs the advantage accruing to the actor and even to the innocent person himself. Time of the day – May affect the diligence required of the actor (Art. 1173); e.g. a driver is required to exercise more prudence when driving at night Gravity of the Harm to be Avoided – Even if the odds that an injury will result are not high, harm may still be considered foreseeable if the gravity of harm to be avoided is great. Alternative Cause of Action – If the alternative presented to the actor is too costly, the harm that may result may still be considered unforeseeable to a reasonable man. More so if there is no alternative thereto. Place – A man who should occasion to discharge a gun on an open and extensive marsh, or in a forest would be required to use less circumspection and care, then if he were to do the same thing in an inhabited town, village or city. Violation of Rules and Statutes a. Statutes b. Administrative Rules c. Private Rules of Conduct Practice and Custom – A practice which is dangerous to human life cannot ripen into a custom which will protect anyone who follows it (Yamada v. Manila Railroad, G.R. No.10073, Dec. 24, 1915).

Q: Will intoxication signify negligence? A: GR: Mere intoxication is not negligence per se nor establishes want of ordinary care. But it may be one of the circumstances to be considered to prove negligence. (Wright v. Manila Electric Railroad & Light Co., GR No. L‐ 7760, Oct. 1, 1914) XPN: It is presumed that a person driving a motor vehicle is negligent if at the time of the mishap, he was violating traffic regulations. (Art. 2185)


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UST GOLDEN NOTES 2011 Q: What is contributory negligence? A: It is conduct on the part of the injured party, contributing as a legal cause to the harm he has suffered, which falls below the standard to which he is required to conform for his own protection (Valenzuela v. CA, G.R. No. 115024, Feb. 7, 1996). Q: What is the doctrine of comparative negligence? A: The negligence of both the plaintiff and the defendant are compared for the purpose of reaching an equitable apportionment of their respective liabilities for the damages caused and suffered by the plaintiff. (Pineda, p. 50, 2009 ed.) Note: The relative degree of negligence of the parties is considered in determining whether, and to what degree, either should be responsible for his negligence (apportionment of damages). B. GOOD FATHER OF A FAMILY OR REASONABLY PRUDENT MAN Q: What is the concept of a good father of the family (pater familias)? A: The Supreme Court described a good father of a family by first stating who is not. He is not and is not supposed to be omniscient of the future; rather, he is one who takes precautions against any harm when there is something before him to suggest or warn him of the danger or to foresee it (Picart v. Smith, G.R. No. L‐12406, Mar. 15, 1918). Note: A good father of a family is likewise referred to as the reasonable man, man of ordinary intelligence and prudence, or ordinary reasonable prudent man. In English law, he is sometimes referred to as the man on top of a Clapham omnibus. (Aquino, 2005)

Q: What is the test of negligence? A: The test is: Would a prudent man, in the position of the tortfeasor, foresee harm to the person injured as a reasonable consequence of the course about to be pursued? If so, the law imposes a duty on the actor to take precaution against its mischievous results, and failure to do so constitutes negligence. (Picart v. Smith, G.R. No. L‐12219, Mar. 15, 1918.)

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Q. Does the standard of conduct applied to adults apply equally to children? A. GR: The action of a child will not necessarily be judged according to the standard of an adult. XPN: If the minor is mature enough to understand and appreciate the nature and consequences of his actions. In such a case, he shall be considered to have been negligent. Note: R.A. 9344 (Juvenile Justice and Welfare Act of 2006): 15 years of age or younger – age of absolute irresponsibility. Nevertheless, absence of negligence does not absolutely excuse the child from liability, as his properties, if any, can be held subsidiarily liable. Nor will such absence of negligence excuse the child’s parent’s vicarious liability.

Q: What is “diligence before the fact”? A: The conduct that should be examined in negligence cases is prior conduct or conduct prior to the injury that resulted or, in proper cases, the aggravation thereof.


TORTS AND DAMAGES C. STANDARD OF CARE STANDARD OF CONDUCT or DEGREE OF CARE REQUIRED In General 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 (Article 1173, 2nd paragraph, NCC). Note: Diligence of a good father of a family ‐ bonos pater familias ‐ A reasonable man is deemed to have knowledge of the facts that a man should be expected to know based on ordinary human experience. (PNR v. IAC, GR No. 7054, Jan. 22, 1993)

Persons who have Physical Disability GR: A weak or accident prone person must come up to the standard of a reasonable man, otherwise, he will be considered as negligent. XPN: If the defect amounts to a real disability, the standard of conduct is that of a reasonable person under like disability. Experts and Professionals GR: They should exhibit the case and skill of one who is ordinarily skilled in the particular field that he is in. Note: This rule does not apply solely or exclusively to professionals who have undergone formal education. XPN: When the activity, by its very nature, requires the exercise of a higher degree of diligence e.g. Banks; Common carriers Insane Persons The same rule applies under the New Civil Code. The insanity of a person does not excuse him or his guardian form liability based on quasi‐delict. (Arts. 2180 and 2182, NCC). This means that the act or omission of the person suffering from mental defect will be judged using the standard test of a reasonable man. The bases for holding a permanently insane person liable for his torts are as follows: Where one of two innocent person must suffer a loss it should be borne by the one who occasioned it; To induce those interested in the estate of the insane person (if he has one) to restrain and control him; and The fear that an insanity defense would lead to false claims of insanity to avoid liability. (Bruenig v. American Family Insurance Co., 173 N.W. 2d 619[1970]). Note: Under the RPC, an insane person is exempt from criminal liability. However, by express provision of law, there may be civil liability even when the actor is exempt from criminal liability. An insane person is still liable with his property for the consequences of his acts, though they performed unwittingly. (US v. Baggay, Jr. G.R. No. 6706, Sept. 1, 1911)

Employers That degree of care as mandated by the Labor Code or other mandatory provisions for proper maintenance of the work place or adequate facilities to ensure the safety of the employees. Note: Failure of the employer to comply with mandatory provisions may be considered negligence per se.

Employees Employees are bound to exercise due care in the performance of their functions for the employers. Liability may be based on negligence committed while in the performance of the duties of the employee (Araneta v. De Joya, G.R. No. 83491, Aug. 27, 1990) Owners, Proprietors and Possessors of Property GR: The owner has no duty to take reasonable care towards a trespasser for his protection or even to protect him from concealed danger. XPN: 1. Visitors 2. Tolerated Possession 3. Doctrine of Attractive Nuisance 4. State of Necessity Doctors If a General Practitioner – Ordinary care and diligence in the application of his knowledge and skill in the practice of his profession If a Specialist – The legal duty to the patient is generally considered to be that of an average physician. Lawyers An attorney is bound to exercise only a reasonable degree of care and skill, having reference to the business he undertakes to do (Adarne v. Aldaba, Adm. Case No. 80, June 27, 1978).


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UST GOLDEN NOTES 2011 1. NCC, ART. 1173 Q: What is the general standard of diligence provided for under the NCC? A: Bonus Pater Familias or that of a good father of a family. Note: 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 (2))

Q: What is the rule in case of fault or negligence of an obligor? A: Art. 1173. The fault or negligence of the obligor consists in the omission of that diligence which is required by the nature of the obligation and corresponds with the circumstances of the persons, of the time and of the place. When negligence shows bad faith, the provisions of Articles 1171 and 2201, paragraph 2, shall apply. NOTE: Art. 1171. Responsibility arising from fraud is demandable in all obligations. Any waiver of an action for future fraud is void. 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.

2. EMERGENCY RULE Q: What is the emergency rule? A: One who suddenly finds himself in a place of danger, and is required to act 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 have been a better method, unless the emergency in which he finds himself is brought about by his own negligence. Note: Emergency rule exempts common carriers.

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D. UNREASONABLE RISK OF HARM Q: In determining whether a person has exposed himself to an unreasonable great risk, what must be present? A: Reasonableness, the elements of which are as follows: 3. Magnitude of the risk 4. Principal object 5. Collateral object 6. Utility of the risk 7. Necessity of the risk If the magnitude of the risk is very great and the principal object, very valuable, yet the value of the collateral object and the great utility and necessity of the risk counterbalanced those considerations, the risk is made reasonable. Note: In the Philippines, the courts do not use any formula in determining if the defendant committed a negligent act or omission. What appears to be the norm is to give negligence a common sense, intuitive interpretation. In the field of negligence, interests are to be balanced only in the sense that the purposes of the actor, the nature of his act and the harm that may result from action or inaction are elements to be considered. Some may not be considered depending on the circumstances. The following are circumstances to be considered: 1. Time 2. Place 3. Emergency 4. Gravity of harm to be avoided 5. Alternative course of action 6. Social value or utility of activity 7. Person exposed to the risk

E. EVIDENCE F. PRESUMPTION OF NEGLIGENCE 1. LEGAL PROVISIONS Q: Discuss the provisions relative to presumptionof negligence. A: Persons are generally presumed to have taken ordinary care of his concerns.There are however exceptions when negligence is presumed. 1. Article 2184. xxx. It is disputably presumed that a driver was negligent, if he had been found guilty of reckless driving or violating traffick regulations


TORTS AND DAMAGES at least twice within the next preceding two months. Xxx 2.

Article 2185. Unless there is proof to the contrary, it is presumed that a person driving a motor vehicle has been negligent if at the time of the mishap, he was violating any traffic regulation.

Note: Proof of traffic violation required.

3.

Article 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 possession or use thereof is indispensable in his occupation or business.

Note: Proof of possession of dangerous weapons or substances required.

2. RES IPSA LOQUITUR Q: What does res ipsa loquitur mean? A: The thing speaks for itself. The fact of the occurrence of an injury, taken with surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiff’s prima facie case, and present a question of fact for defendant to meet with an explanation. Note: However, res ipsa loquitur is not a rule of substantive law and, as such, does not create nor constitute an independent or separate ground of liability. Instead, it is considered as merely evidentiary or in the nature of a procedural rule. Q: What are the requisites for the application of the doctrine of res ipsa loquitur? A: 1. That the accident is of a kind which ordinarily does not occur in the absence of someone’s negligence; 2. It is caused by an instrumentality within the exclusive control of the defendant/s; and 3. The possibility of contributing conduct which would make plaintiff responsible is eliminated.

Q: What are some cases where the doctrine was held to be inapplicable? A: 1. Where there is direct proof of absence or presence of negligence; 2. Where other causes, including the conduct of the plaintiff and third persons, are not sufficiently eliminated by the evidence; 3. When one or more requisite is absent. G. DEFENSES 1. COMPLETE Q: Why are they called “complete” defenses? A: They are called “complete” defenses because they completely bar recovery as opposed to partial defenses which only serve to mitigate liability. a. ABSENCE OF ELEMENT (1) DUE DILIGENCE See Rules on Degree or Standard of Care (2) ACTS OF PUBLIC OFFICERS b. ACCIDENT OR FORTUITOUS EVENT See Force Majeure or Fortuitous Event c. DAMNUM ABSQUE INJURIA Q: What is meant by damnum absque injuria? A: There is no liability even if there is damage because there was no injury. Note: 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.

Q: What is injury? A: it is the legal invasion of a legal right. Q: What is damage? A: it is the loss, hurt or harm which results from the injury. They are the recompense or compensation awarded for the damage suffered.


533

UST GOLDEN NOTES 2011 Q: What is meant by the maxim qui jure suo utitur nullum damnum facit? A: One who exercises a right does no injury. d. AUTHORITY OF LAW e. ASSUMPTION OF RISK Q: What is meant by volenti non fit injuria? A: To a willing person, no injury is done. Q: What are the elements of the doctrine of assumption of risk? A: 1. The plaintiff must know that the risk is present; 2. He must further understand its nature; and 3. His choice to incur it is free and voluntary. Q: What are the two kinds of assumption of risk? A: 1. Express waiver of the right to recover; 2. Implied assumption a. Dangerous Conditions b. Contractual Relations c. Dangerous Activities d. Defendant’s negligence Q: What is meant by: 1. Dangerous conditions? A: A person who, knowing that he is exposed to a dangerous condition, voluntarily assumes the risk of such dangerous condition may not recover from the defendant who maintained such dangerous condition. 2. Contractual relations? A: There may be an implied assumption of risk if the plaintiff entered into contractual relations with the defendant. By entering into a relationship freely and voluntarily where the negligence of the defendant is obvious, the plaintiff may be found to accept and consent to it, and to undertake to look out for himself and to relieve the defendant of the duty. 3. Dangerous activities? A: A person who voluntarily participates in dangerous activities assumes the

534

4.

risks which are usually present in such activities. Defendant’s negligence? A: When the plaintiff is aware of the risk created by the defendant’s negligence, yet he voluntarily proceed to encounter it, there is implied assumption of risk on the part of the plaintiff.

f. LAST CLEAR CHANCE See Last Clear Chance g. PRESCRIPTION Q: What is the prescriptive period for quasi‐ delict? A: Four (4) years reckoned from the date of the accident. h. WAIVER See Persons: Waiver of Rights. i. DOUBLE RECOVERY Q: What is the rule against double recovery? A: The plaintiff cannot recover damages twice for the same act or omission of the defendant. (Art. 2177, NCC)


TORTS AND DAMAGES IX. SPECIAL LIABILITY IN PARTICULAR ACTIVITIES A. GENERAL 1. CONCEPT B. PRODUCTS LIABILITY Q: What is product and service liability? A: Product Liability is the law which governs the liability of manufacturers and sellers for damages resulting from defective products. It is meant to protect the consumers by providing safeguards when they purchase or use consumer products. (Aquino, T., Torts and Damages, 2005, Second Ed.) 1. MANUFACTURERS OR PROCESSORS a. ELEMENTS b. CONSUMER ACT Q: What is the consumer act (RA 7394)? A: Consumer Act prohibits fraudulent sales acts or practices. Chapter I of Title III expressly provides for protection against defective, unfair and unconscionable sales acts and practices. The Act likewise contains provisions imposing warranty obligations on the manufacturers and sellers. This Act also imposes liability for defective service “independently of fault”. Q: Who are the persons made liable under the consumer act? A: The strict liability under the Act is imposed on the manufacturer.

2. 3.

4.

Design defect – defects resulting from design and formulas. Presentation defect – defects resulting from handling, making up, presentation or packing of the products. Absence of Appropriate Warning – defect resulting from the insufficient or inadequate information on the use and hazards of the products.

Q: What are the defenses of a manufacturer and supplier? A: The manufacturer shall not be liable when it evidences: 1. that it did not place the product on the market; 2. that although it did place the product on the market such product has no defect; 3. that the consumer or the third party is solely at fault. The supplier shall not be liable when it is proven: 1. that there is no defect in the service rendered; 2. that the consumer or the third party is solely at fault. Q: What are the remedies of a consumer in the consumer act? A: Section 60 of the law expressly provides that the court may grant injunction restraining the conduct constituting the contravention of illegal sales act and practices and/or actual damages and such other orders as it thinks fit to redress injury to the person affected by such conduct.

NOTE: A manufacturer is any person who manufactures, assembles or processes consumer products, except that if the goods are manufactured, assembled or processed for another person who attaches his own brand name to the consumer products, the latter shall be deemed the manufacturer. In case of imported products, the manufacturer’s representatives or, in his absence, the importer, shall be deemed the manufacturer. (Art. 4, RA 7394)

Q: What are the kinds of defects in products? A: 1. Manufacturing defect – defects resulting from manufacture, construction, assembly and erection.


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UST GOLDEN NOTES 2011 C. NUISANCE 1. NUISANCE PER SE AND NUISANCE PER ACCIDENCE Q: What are the kinds of nuisance? A: 1. As to the number of persons affected: a. Public (or common) – is one which affects a community ir neighborhood or considerable number of persons. b. Private – is one which affects an individual or few persons only. 2. Other classification: a. Nuisance Per Se – that kind of nuisance which is always a nuisance. By its nature, it is always a nuisance all the time under any circumstances regardless of location or surroundings. b. Nuisance Per Accidens – that kind of nuisance by reason of location, surrounding or in a manner it is conducted or managed. c. Temporary – that kind which if properly attended does not constitute a nuisance. d. Permanent – that kind which by nature of structure creates a permanent inconvenience. e. Continuing – that kind which by its nature will continue to exist indefinitely unless abated f. Intermittent – that kind which recurs off and on may be discontinued anytime. g. Attractive Nuisance – 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.

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2. PUBLIC NUISANCE AND PRIVATE NUISANCE Q: What are the remedies against public nuisances? A: 1. Prosecution under the RPC or any local ordinance 2. Civil action 3. Abatement, without judicial proceeding Q: Who may avail of remedies? A: 1. Public officers 2. Private persons ‐ if nuisance is specially injurious to himself; the ff. steps must be made: i. demand be first made upon owner or possessor of the property to abate the nuisance ii. that such demand has been rejected iii. that the abatement be approved by the district health officer and executed with the assistance of local police iv. that the value of destruction does not exceed P3,000 Q: What is a private nuisance? A: one that affects an individual or a limited number of individuals only Q: What are the remedies against private nuisances? A: 1. Civil action 2. Abatement, without judicial proceedings Q: Who may avail of remedies? A: 1. Public officers 2. Private persons ‐ if nuisance is specially injurious to himself; the ff. steps must be made: i. demand be first made upon owner or possessor of the property to abate the nuisance ii. that such demand has been rejected


TORTS AND DAMAGES iii.

iv.

that the abatement be approved by the district health officer and executed with the assistance of local police that the value of destruction does not exceed P3,000

3. ATTRACTIVE NUISANCE Q: What is an attractive nuisance? A: A dangerous instrumentality or appliance maintained in one’s premises which is likely to attract children at play. One who maintains an attractive nuisance on his estate without exercising due care is liable to a child of tender years even if a trespasser. Note: the attractiveness of the premises or of the dangerous instrumentality to children of tender years is to be considered as an implied invitation, which takes the children who accepted it out of the category of a trespasser and puts them in the category of invitees, towards whom the owner of the premises or instrumentality owes the duty of ordinary care

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

13. The right to take part in a peaceable assembly to petition the government for redress of grievances; 14. The right to be free from involuntary servitude in any form; 15. The right of the accused against excessive bail; 16. The right of the accused to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witness in his behalf; 17. Freedom from being compelled to be a witness against one's self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make such confession, except when the person confessing 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. (Art. 32, NCC) 1. VIOLATION OF CIVIL LIBERTIES Q: What is the rationale for the inclusion of Art. 32 in the New Civil Code? A: The creation of an absolutely separate and independent civil action for the violation of civil liberties is essential to the effective maintenance of democracy. E. VIOLATION OF RIGHTS COMMITTED BY PUBLIC OFFICERS Q: In what instances can a public officer be liable for damages? A: 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. (Art. 34, NCC) An action may be brought by any person suffering from material or moral loss because a public servant refuses or neglects, without just cause to perform his official duty (ART, 27 NCC).


537

UST GOLDEN NOTES 2011 Requisites: i. defendant is a public officer charged with the performance of a duty in favor of the plaintiff ii. he refused or neglected without just cause to perform such duty (ministerial) iii. plaintiff sustained material or moral loss as consequence of such non‐ performance iv. the amount of such damages, if material Q: What is the intention of making public officers liable under Art 34, NCC? A: Art. 34 is intended to afford a remedy against police officers who connive with bad elements, are afraid of them or simply indifferent to duty. F. PROVINCES, CITIES AND MUNICIPALITIES Q: What instance would make cities and municipalities liable for damages? A: Cities and municipalities shall be subsidiarily liable for the neglect of duty of a member of a city or municipal police force. (Art. 34, NCC) G. OWNER OF MOTOR VEHICLE Q: What is the liability of the owner of a vehicle in case of an accident? A: In motor vehicle mishaps, the owner is solidarily liable with his driver, if the former, who was in the vehicle, could have, by the use of the due diligence, prevented the misfortune. It is disputably presumed that a driver was negligent, if he had been found guilty or reckless driving or violating traffic regulations at least twice within the next preceding two months. (Art. 2184, NCC) H. PROPRIETOR OF BUILDING OR STRUCTURE OR THING Q: What is the rule regarding the liability of proprietors of buildings: A: a. 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. (Art. 2190, NCC)

538

b.

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. (Art. 2191, NCC) I. HEAD OF FAMILY

See Persons Made Responsible For Others; Parents X. STRICT LIABILITY Q: When is there strict liability? A: There is strict liability if one is made independent of fault, negligence or intent after establishing certain facts specified by law. It includes liability for conversion and for injuries caused by animals, ultra‐hazardous activities and nuisance. A. ANIMALS 1. POSSESSOR AND USER OF AN ANIMAL Q: Who is liable for damages caused by animals? A: The possessor or whoever makes use of the animal is liable independent of fault. Note: The only exception is when the damage is caused by force majeure or by the person who suffered the damage.

Q: What are the rules on liability of owners for damage caused by his animals? A: 1. An owner is strictly liable for reasonably foreseeable damage done by a trespass of his animals. 2. An owner is strictly liable to licensees and invitees for injuries caused by wild


TORTS AND DAMAGES

3.

4.

animals as long as the injured person did nothing to bring about the injury. An owner is not strictly liable for injuries caused by domestic animals unless he has knowledge of that particular animal's dangerous propensities that are not common to the species. Strict liability will generally not be imposed in favor of trespassers in the absence of the owner's negligence. An exception is recognized for injuries inflicted by vicious watchdogs.

B. NUISANCE See Nuisance. 1. CLASSES See Nuisance. 2. EASEMENT AGAINST NUISANCE Q: What is easement against nuisance? A: Easement against nuisance is established by Art. 682 – 683. It is intended to prohibit the proprietor or possessor of a building or land from committing nuisance therein through noise, jarring, offensive odor, smoke, heat, dust, water, glare, and other causes. (Gonzalez‐Decano, Notes on Torts & Damages Under the Civil Code of the Philippines, 2010, p166) C. PRODUCTS LIABILITY 1. CONSUMER ACT See Manufacturers or Processors; Consumer Act.

BOOK II – DAMAGES I. GENERAL CONSIDERATIONS A. CLASSIFICATION Q: What are damages? A: The pecuniary compensation, recompense or satisfaction for an injury sustained or as otherwise expressed the pecuniary consequences which the law imposes for the breach of some duty or violation of some rights. Note: A complaint for damages is personal in nature (personal action) Q: What are the kinds of damages? A: MENTAL 1. Moral 2. Exemplary 3. Nominal 4. Temperate 5. Actual 6. Liquidated


539

UST GOLDEN NOTES 2011 ACTUAL/ COMPENSATORY

MORAL

NOMINAL

According to purpose Actual or compensatory damages Awarded only to enable the simply make good or replace the injured party to obtain means, loss caused by the wrong. diversion or amusement that will alleviate the moral suffering he has undergone, by reason of defendants culpable action. (Robleza v. CA, 174 SCRA 354)

Vindicating or recognizing the injured party’s right to a property that has been violated or invaded. (Tan v. Bantegui, 473 SCRA 663)

According to manner of determination Claimant must produce competent proof or the best evidence obtainable such as receipts to justify an award therefore. Actual or compensatory damages cannot be presumed but must be proved with reasonable certainty. (People v. Ereno, Feb. 22, 2000)

No proof of pecuniary loss is necessary. The assessment is left to the discretion of the court according to the circumstances of each case. However, there must be proof that the defendant caused physical suffering etc. (Compania Maritima v. Allied Free Worker’s Union, G.R. No. L‐31379, Aug. 29, 1988). GR: Factual basis must be alleged. Aside from the need for the claimant to satisfactorily prove the existence of the factual basis of the damages, it is also necessary to prove its causal relation to the defendant’s act (Raagas v. Trava, G.R. No. L‐20081, Feb. 27,1968; People v. Manero, G.R. Nos. 86883‐85, Jan. 29, 1993). XPN: Criminal cases. Moral damages may be awarded to the victim in criminal proceedings in such amount as the court deems just without need for pleading or proof of the basis thereof (People v. Paredes, July 30, 1998).

No proof of pecuniary loss is necessary. Proof that a legal right has been violated is what is only required. Usually awarded in the absence of proof of actual damages.

Special/Ordinary Ordinary

Special

Note: Ordinary Damages are those generally inherent in a breach of a typical contract

Special

Note: Special Damages are those which exist because of special circumstances and for which a debtor in good faith can be held liable if he had been previously informed of such. circumstances.

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TORTS AND DAMAGES

TEMPERATE

EXEMPLARY/ CORRECTIVE

LIQUIDATED

According to purpose When the court is convinced that there has been such a loss, the judge is empowered to calculate moderate damages rather than let the complainant suffer without redress. (GSIS v. Labung‐Deang, 365 SCRA 341)

Liquidated damages are frequently agreed upon by the parties, either by way of penalty or in order to avoid controversy on the amount of damages.

Exemplary or corrective damages are intended to serve as a deterrent to serious wrongdoings. (People v. Orilla, 422 SCRA 620)

According to manner of determination 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 certainty. No proof of pecuniary loss is necessary.

If intended as a penalty in obligations with a penal cause, proof of actual damages suffered by the creditor is not necessary in order that the penalty may be demanded (Art. 1228, NCC). No proof of pecuniary loss is necessary.

1. That the claimant is entitled to moral, temperate or compensatory damages; and 2. That the crime was committed with 1 or more aggravating circumstances, or the quasi‐delict was committed with gross negligence, or in contracts and quasi‐contracts the act must be accompanied by bad faith or done in wanton, fraudulent, oppressive or malevolent manner. No proof of pecuniary loss is necessary.

Special/Ordinary Special

Special

Special

II. ACTUAL AND COMPENSATORY DAMAGES A. CONCEPT Q: What are actual or compensatory damages? A: It comprehends not only the value of the loss suffered but also that of the profits which the obligee failed to obtain. The amount should be that which would put the plaintiff in the same position as he would have been if he had not sustained the wrong for which he is now getting compensation or reparation. To recover damages, the amount of loss must not only be capable of proof but must actually be proven. Q: What are the kinds of actual or compensatory damages? A: 1. General damages – natural, necessary and logical consequences of a particular

2.

wrongful act which result in injury; need not be specifically pleaded because the law itself implies or presumes that they resulted from the wrongful act. Special damages – damages which are the natural, but not the necessary and inevitable result of the wrongful act; an example would be attorney’s fees.

B. REQUISITES 1. ALLEGED AND PROVED WITH CERTAINTY Q: Is it necessary that loss be proved? A: GR: Loss must be proved before one can be entitled to damages. XPN: Loss need not be proved in the following cases:

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II U N I V E R S I T Y O F S A N T O T O M A S VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA Facultad de Derecho Civil V ICE C HAIR FOR A DMINISTRATION AND F INANCE : J EANELLE C. L EE VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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UST GOLDEN NOTES 2011 1.

2. 3.

4.

Liquidated damages previously agreed upon; Note: Liquidated damages take the place of actual damages except when additional damages are incurred. If damages other than actual are sought; Forfeiture of bonds in favor of the government for the purpose of promoting public interest or policy; Loss is presumed.

2. NOT SPECULATIVE Q: What is the required proof for actual damages? A: It is necessary that the claimant produces competent proof or the best evidence obtainable such as receipts to justify an award therefore. Actual or compensatory damages cannot be presumed but must be proved with reasonable certainty (People v. Ereno, Feb. 22, 2000) Any person who seeks to be awarded actual or compensatory damages due to acts of another has the burden of proving said damages as well as the amount thereof. Actual damages cannot be allowed unless supported by evidence on the record. The court cannot rely on speculations, conjectures or guesswork as to the fact and amount of damages (Banas, Jr. v. CA, Feb. 10, 2000) C. COMPONENT ELEMENTS 1. VALUE OF LOSS; UNREALIZED PROFIT Q: What does actual damages cover? A: It comprehends not only the value of the loss suffered but also that of the profits which the obligee failed to obtain. 1. Dano emergente – loss of what a person already possesses 2. Lucro cessante – failure to receive as a benefit that would have pertained to him

Q: What must be considered in determining the amount of damages recoverable? A: Much is left to the discretion of the court considering the moral and material damages involved. There can be no exact or uniform rule for measuring the value of a human life. The amount recoverable depends on the particular facts and circumstances of each case. The life expectancy of the deceased or of the beneficiary, whichever is shorter, is an important factor. Other factors that are usually considered are: 1. Pecuniary loss to plaintiff or beneficiary; 2. Loss of support; 3. Loss of service; 4. Loss of society; 5. Mental suffering of beneficiaries; and 6. Medical and funeral expenses. Thus, life expectancy is, not only relevant, but, also, an important element in fixing the amount recoverable, although it is not the sole element determinative of said amount. Q: Is it proper for the heirs to claim as damages the full amount of earnings of the deceased? A: No. Said damages consist, not of the full amount of his earnings, but of the support they received or would have received from him had he not died in consequence of the negligence of the bus' agent. Stated otherwise, the amount recoverable is not loss of the entire earning, but rather the loss of that portion of the earnings which the beneficiary would have received. In other words, only net earnings, not gross earning, are to be considered. In fixing the amount of that support, the "necessary expenses of his own living" should be deducted from his earnings. Earning capacity, as an element of damages to one's estate for his death by wrongful act, is necessarily his net earning capacity or his capacity to acquire money, less the necessary expense for his own living. (Villa Rey Transit, Inc. v. CA, et al., G.R. No. L‐25499 Feb. 18, 1970)

Note: Loss or impairment of earning capacity in cases of temporary or permanent personal injury. In case of business establishments, it covers injury to the business standing or commercial credit.

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TORTS AND DAMAGES persons or incur expenses to protect his interest

2. ATTORNEY’S FEES AND EXPENSES OF LITIGATION Q: What are the two concepts of attorney’s fees? Distinguish one from the other. A: 1. Ordinary 2. Extraordinary ORDINARY The reasonable compensation paid to a lawyer for the legal services rendered to a client who has engaged him

EXTRAORDINARY Nature An indemnity for damages ordered by the court to be paid by the losing to the prevailing party in litigation

Basis The fact of employment of the Any cases authorized by law lawyer by the client To whom payable Lawyer Client

Q: To what does Article 2208 pertain? A: Article 2208 pertains to extraordinary attorney’s fees. They are actual damages due to the plaintiff. Plaintiff must allege the basis of his claim for attorney’s fees in the complaint. Q: Are attorney’s fees recoverable as actual damages? A: GR: Not recoverable. XPN: SWISS‐ MUD‐ ERC 1. Stipulation between parties 2. Recovery of Wages of household helpers, laborers and skilled workers 3. Actions for Indemnity under workmen's compensation and employer liability laws 4. Legal Support actions 5. Separate civil action to recover civil liability arising from crime 6. Malicious prosecution 7. Clearly Unfounded civil action or proceeding against plaintiff 8. When Double judicial costs are awarded 9. When Exemplary damages are awarded 10. Defendant acted in gross & evident bad faith in Refusing to satisfy plaintiff's just & demandable claim 11. When defendant's act or omission Compelled plaintiff to litigate with 3rd

3. INTEREST Q: When can interest be part of damages? A: In crimes and quasi‐delicts, the court may appropriately impose interest on the amount of the damages adjudicated by the court. The basis of interest is the legal rate which is 6% per annum. D. EXTENT OR SCOPE OF ACTUAL DAMAGES 1. IN CONTRACTS AND QUASI‐CONTRACTS Q: What should be the amount of actual damages? A: The amount should be that which would put the plaintiff in the same position as he would have been if he had not sustained the wrong for which he is now getting compensation or reparation. 1. Property – value at the time of destruction, or market value, plus, in proper cases, damages for the loss of use during the period before replacement, value of use of premises, in case of mere deprivation of possession. 2. Personal injury – Medical expenses; P 75,000 by way of civil indemnity in case of rape committed or effectively qualified under which the death penalty is imposed by law, or P 50,000 in other rape cases. 3. Death – Wake and burial expenses, P 50,000 by way of civil indemnity ex delicto which requires no proof other than the fact of death of the victim and the assailant’s responsibility therefor. Q: Can actual damages be mitigated? A: Yes, in the following cases: 1. For Contracts: a. Violation of terms of the contract by the plaintiff himself; b. Obtention or enjoyment of benefit under the contract by the plaintiff himself; c. Defendant acted upon advice of counsel in cases where the exemplary damages are to be


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UST GOLDEN NOTES 2011

d.

2.

3.

awarded such as under Articles 2230, 2231 and 2232; Defendant has done his best to lessen the plaintiff’s injury or loss.

For Quasi‐contracts: a. In cases where exemplary damages are to be awarded such as in Article 2232; b. Defendant has done his best to lessen the plaintiff’s injury or loss. For Quasi‐delicts: a. That the loss would have resulted in any event because of the negligence or omission of another, and where such negligence or omission is the immediate and proximate cause of the damage or injury; b. Defendant has done his best to lessen the plaintiff’s injury or loss.

2. IN CRIMES AND QUASI‐DELICTS Q: What is the amount of damages in cases where death resulted from a crime or quasi‐ delict? A: Art. 2206 provides that the amount of damages for death caused by a crime or quasi‐ delict shall be at least 50 thousand pesos, even though there may have been mitigating circumstances. In addition to the amount to be awarded, the defendant shall also be liable for the following: 1. 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;

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Note: The article only mentioned heir. Consequently, it cannot speak of devisees and legatees who are receiving support from the deceased. 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.

III. MORAL DAMAGES A. CONCEPT Q: Why are moral damages awarded? A: They are awarded to enable the injured party to obtain means, diversions or amusement that will serve to alleviate the moral suffering he has undergone by reason of the defendant’s culpable action. Q: How can the plaintiff recover moral damages? A: GR: The plaintiff must allege and prove: 1. The factual basis for moral damages and 2. The causal relation to the defendant’s act XPN: Moral damages may be awarded to the victim in criminal proceedings without the need for pleading of proof or the basis thereof. B. WHEN RECOVERABLE Q: When is moral damages recoverable? A: 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; and


TORTS AND DAMAGES 10. Actions referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34, and 35. (Art. 2219, NCC) N534: To award moral damages, a court must be satisfied with proof of the following: 1. an injury – whether physical, mental or psychological; 2. a culpable act or omission factually established; 3. a wrongful act or omission of the defendant as the proximate cause of the injury sustained by the claimant; 4. the award of damages predicated on any of the cases stated in Art. 2219. Art. 2219, NCC speaks provides for criminal offense resulting from physical injuries and quasi‐delicts causing physical injuries.

1. IN SEDUCTION, ABDUCTION, RAPE AND OTHER LASCIVIOUS ACTS Q: Is there any instance wherein the plaintiff may not prove the factual basis for moral damages as well as the causal relation to the defendant’s act? A: Yes. In criminal proceedings for rape. Requisites: 1. There must be an injury whether physical, mental or psychological, clearly sustained by the claimant 2. There must be culpable act or omission 3. Such act or omission is the proximate cause of the injury 4. The damage is predicated on the cases cited in Art. 2219 Q: In rape cases, is civil indemnity the same with moral damages? A: No, civil indemnity is different from moral damages. 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 v. Caldona, G.R. No. 126019, Mar. 1, 2001). When the fact of rape has been established, civil indemnity is mandatory. If it is simple rape, civil indemnity is P50,000.00. If there is qualifying circumstance as to justify the imposition of death penalty, it should be no less than P75,000.00 (People v. Banago ; People v. Mahinay, G.R. No. 109613, July 17, 1995) (Pineda, p. 247, 2009 ed.).

2. IN ACTS REFERRED TO IN ARTS. 21, 26, 27, 28, 29, 32, 34 & 35, NCC Q: What are those tortuous acts referred to in Articles 21, 26, 27, 28. 29, 32, 34 and 35 of the Civil Code, wherein the plaintiff may recover moral damages? A: 1. Willful acts contrary to morals, good customs or public policy 2. Disrespect to the dignity, personality, privacy and peace of mind of neighbors and other persons 3. Refusal or neglect of a public servant to perform his official duty without just cause 4. Unfair competition in enterprise or in labor 5. Civil action for damages against accused acquitted on reasonable doubt 6. Violation of civil rights 7. Civil action for damages against city or municipal police force 8. When the trial court finds no reasonable ground to believe that a crime has been committed after a preliminary investigation or when the prosecutor refuses or fails to institute criminal proceedings. 3. IN CASES OF MALICIOUS PROSECUTION Q: What is an action for malicious prosecution? A: It has been defined as an action for damages brought by or 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. (Diaz v. Davao Light and Power Co., 520 SCRA 510, 2007) Q: May moral and exemplary damages be granted if a marriage was dissolved on the ground of psychological incapacity? A: By declaring petitioner as psychologically incapacitated, the possibility of awarding moral damages was negated, which should have been proved by specific evidence that it was done deliberately. Thus, as the grant of moral damages was not proper, it follows that the grant of exemplary damages cannot stand since the Civil Code provides that exemplary damages are imposed in addition to moral, temperate, liquidated or compensatory damages. Finally,


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UST GOLDEN NOTES 2011 since the award of moral and exemplary damages is no longer justified, the award of attorney's fees and expenses of litigation is left without basis. (Buenaventura v. CA, G.R. No. 127358, Mar. 31, 2005) IV. NOMINAL DAMAGES A. CONCEPT Q: What is the purpose of nominal damages? A: 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. Note: Elements: 1. Plaintiff has a right; 2. Such right is violated; 3. The purpose of awarding damages is to vindicate or recognize the right violated.

B. WHEN AWARDED Q: In what cases are nominal damages awarded? A: nominal damages are small sums fixed by the court without regard to the extent of the harm done to the injured party. They are damages in name only and are allowed simply in recognition of a technical injury based on a violation of a legal right. Note: Nominal damages cannot co‐exist with actual or compensatory damages because nominal damages are recoverable when the damages suffered cannot be proved with reasonable certainty. The law presumes damage although actual or compensatory damages are not proven. Award of actual, moral, temperate or moderate damages preclude nominal damages. But it may be awarded together with attorney’s fees. (Pineda, pp. 284‐285, 2009 ed)

V. TEMPERATE OR MODERATE DAMAGES A. CONCEPT Q: What are temperate damages? A: Those damages, which are more than nominal but less than compensatory, and may be recovered when the court finds that some

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pecuniary loss has been suffered but its amount cannot be proved with certainty. In cases where the resulting injury might be continuing and possible future complications directly arising from the injury while certain to occur, are difficult to predict, temperate damages can and should be awarded on top of actual or compensatory damages. In such cases there is no incompatibility between actual and temperate damages Note: Elements: 1. Some pecuniary loss; 2. Loss is incapable of pecuniary estimation; 3. The damages awarded are reasonable.

VI. LIQUIDATED DAMAGES A. CONCEPT Q: What are liquidated damages? A: Those agreed upon by the parties in a contract, to be paid in case of breach thereof. Q: When may liquidated damages be equitably reduced? A: 1. Iniquitous or unconscionable 2. Partial or irregular performance B. RULES GOVERNING IN CASE OF BREACH OF CONTRACT Q: What is the rule governing in case of breach of contract? A: Art. 2228, NCC, provides that when the breach of 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. VII. EXEMPLARY OR CORRECTIVE DAMAGES A. CONCEPT Q: What is the purpose of exemplary damages? A: Imposed by way of example or correction for the public good, in addition to the moral, temperate, liquidated or compensatory damages; intended to serve as a deterrent to serious wrongdoings and as a vindication of undue sufferings and wanton of invasion of the rights of


TORTS AND DAMAGES an injured or a punishment for those guilty of outrageous conduct. B. WHEN RECOVERED Q: In what cases may exemplary damages be imposed as accessory damages? A: GR: Exemplary damages cannot be recovered as a matter of right (Art. 2233, NCC) XPN: 1. Criminal offense – when the crime was committed with one or more aggravating circumstances (Art. 2230) 2. Quasi‐delicts – when the defendant acted with gross negligence (Art. 2231) 3. Contracts and Quasi‐contracts – when defendant acted in wanton, fraudulent, reckless, oppressive, or malevolent manner (Art. 2232) (Pineda, p. 301, 2009 ed) Q: What are the damages that can be recovered in case of death? 3 A: MEA‐I 1. Moral damages 2. Exemplary damages 3. Attomey's fees and expenses for litigation 4. Indemnity for death 5. Indemnity for loss of earning capacity 6. Interest in proper cases Q: What are the damages that can be recovered in case of death? 3 A: MEA‐I 1. Moral damages 2. Exemplary damages 3. Attomey's fees and expenses for litigation 4. Indemnity for death 5. Indemnity for loss of earning capacity 6. Interest in proper cases C. REQUISITES Q: When is temperate damages recoverable? A: 1. The claimant’s right to exemplary damages has been established 2. Their determination depends upon the amount of compensatory damages that may be awarded to the claimant

3.

The act must be accompanied by bad faith or done in wanton, fraudulent, oppressive or malevolent manner

VIII. DAMAGES IN CASE OF DEATH A. IN CRIMES AND QUASI‐DELICTS CAUSING DEATH Q: What is the rule with regard to crimes and quasi‐ delicts causing death? A: In case of death, the plaintiff is entitled to the amount that he spent during the wake and funeral of the deceased. However, it has been ruled that expenses after the burial are not compensable. Note: 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; 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. 2206, NCC)

1. IN DEATH CAUSED BY BREACH OF CONDUCT BY A COMMON CRIME


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UST GOLDEN NOTES 2011 IX. GRADUATION OF DAMAGES Q: What is the rule in graduation of damages in torts cases? A: Generally, the degree of care required is graduated according to the danger a person or property attendant upon the activity which the actor pursues or the instrumentality he uses. The greater the danger the greater the degree of care required. However, foreseeability is not the same as probability. Even if there is lesser degree of probability that damage will result, the damage may still be considered foreseeable. NOTE: The test as respects foreseeability is not the balance of probabilities, but the existence, in the situation in hand, of some real likelihood of some damage and the likelihood is of such appreciable weight and moment to induce, or which reasonably should induce, action to avoid it on the part of a person or a reasonably prudent mind.

A. DUTY OF INJURED PARTY 1. ART. 2203 Q: What is the duty of the injured party? A: The injured party is obligated to undertake measures that will alleviate and not aggravate his condition after the infliction of the injury or nuisance. The injured party has the burden of explaining why he did not do so. (Art. 2203, NCC) B. RULES 1. IN CRIMES Q: How are damages adjudicated in case of crimes? A: In crimes, the damages to be adjudicated may be respectively increased or lessened according to the aggravating or mitigating circumstances. (Art. 2204, NCC) 2. IN QUASI‐DELICT Q: When can damages be reduced in quasi delict? A: The contributory negligence of the plaintiff shall reduce the damages he may recover. (Art. 2214, NCC)

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3. IN CONTRACTS, QUASI‐CONTRACTS AND QUASI‐DELICTS; NCC ART. 2215 Q: When can the court equitably mitigate the damages in contract, quasi‐contracts and quasi‐ delicts? A: The court can mitigate the damages in the following instances other than in Art. 2214: 1. That the plaintiff himself has contravened the terms of the contract; 2. That the plaintiff has fderived 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. (Art. 2215, NCC) 4. LIQUIDATED DAMAGES Q: When can liquidated damages be equitably reduced? A: Liquidated damages, whether intended as an indemnity or a penalty, shall be equitably reduced if they are iniquitous or unconscionable. (Art. 2227, NCC) 5. COMPROMISE Q: What is a compromise? A: A compromise is a contract whereby the parties, by making reciprocal concessions, avoid a litigation or put an end to one already commenced. (Art. 2028, NCC) Q: What is the essence of a compromise? A: The element of reciprocal concessions. Q: What is the rule regarding compromise in case liability has a civil and criminal aspect? A: If a crime has been committed, there can be compromise on the civil liability, but not, as a general rule, on the criminal liability. Note: In a civil case, compromise must be entered into before or during litigation, never after final judgment has been rendered.


TORTS AND DAMAGES Compromise during litigation may be in the form of a confession of judgment. Q: What is the rule regarding compromise of criminal liability? A: GR: not allowed XPN: in case of crimes against chastity and violations of the National Internal Revenue Code. X. MISCELLANEOUS RULES Damages Damages Damages that cannot that must co‐ that must co‐exist exist stand alone Nominal Exemplary Nominal Damages Damages Damages cannot co‐ must co‐exist exist with with Moral, Exemplary Temperate, Damages Liquidated or Compensator y Damages


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UST Golden Notes 2011 - Torts and Damages.pdf

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