GENERAL CONSIDERATIONS/CONCEPTUAL . FRAMEWORK: TORTS & DAMAGES . - All Sorts of Torts . Etymology . From the French word “torquere” which means “to twist.” The term “Tort” is of Anglo-American law-common law which is broader in scope than the Spanish-Philippine concept which is limited to negligence while the former includes intentional or criminal acts. Torts in Philippine law is the blending of common-law and civil law system. Concept of Torts 1. 2. 3. 4. facts. The conduct is generally not wrongful but the wrong consists in causing harm by engaging in certain types of risky activities. (Article 2187 and Article of Consumer Act). - - Purposes Of Tort Law . TO provide means for adjusting the rights of parties who might otherwise take the law into their own hands; Deter wrongful conduct; Encourage socially responsible behavior and; Restore injured parties to their original condition. . Characteristics Of Tort . It is a legal wrong. It is civil in nature. Wrong causes damage or injury. It provides remedy for injured party. Kinds Of Tort Liabilities . a) Negligence -Voluntary acts or omissions that results in injury to others without intention. - Omission of that degree of diligence which is required by the nature of the Obligation. 2. Intentional Acts - Desires to cause the consequences. 3. Strict Liability -Where the person is made liable independent of fault or negligent upon submission of proof of certain - - Elements Of Tort (Row) . Legal Right in favor of a person (plaintiff). A correlative legal Obligation on the part of another to respect or not to violate such right and; A wrong in the form of the act or omission in violation of the said legal right and duty with consequent injury or damage. Quasi-Delict V. Torts . Quasi-Delicts is known as culpaaquiliana is a civil law concept while Torts is Anglo- American or common law concept. Torts is broader than culpa-aquiliana because it includes not only negligence, but intentional criminal acts as well. However, Article 21 with Art 19 and 20, greatly broadened the scope of the law on civil wrongs; it has become more supple and adaptable than the Anglo-American law on torts. Reason for the use of Quasi-Delict instead of Tort in NCC — the term quasi-delict was deliberately use to designate obligations which do not arise from law, contracts, quasi- contracts, or criminal offenses. The term tort was not used because it is broader in coverage as it covers, in common law countries, acts which are intentional or malicious, which latter acts in the general plan of the Philippine system am governed by the Revised Penal (Pineda). However, there is an intent to the concept of tort. (Aquino) Quasi-Delict covers Punishable and NonPunishable Negligence — traditional concept of quasi-delict is one that excludes acts which are intentional or malicious and acts which arise from pre-existing contracts. However, the case of Barredo v. Garcia, in effect, followed the English Law on torts which makes no distinction intentional and negligent injuries (Pineda). Nature Of Delicts . Art 1157 Obligations arise from: a) law b) Contracts c) Quasi-contracts d) Acts or omissions punished by law (Delicts) e) Quasi-delicts Art. 2176. Whoever by act or omission causes damage to another, there 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. Elements Of Quasi- Delict . 1. Act or omission 2. There is no pre-existing contractual relations between the parties 3. Damage or injury is caused to another 4. Fault or negligence 5. Causal connection between damage done and act/omission (Andamo v. IAC G.R. No. 74751 November 6, 1990) Scope: Intentional Acts . There is no justification for limiting the scope of Article 2176 of the Civil Code to acts or omissions resulting from negligence. Well-entrenched is the doctrine that Article 2176 covers not only acts committed with negligence, but also acts which are voluntary an intentional. (Elcano v. Hill 77 98). Scope: Damage To Property . The concept of quasi-delict enunciated in Article 2176 of the New Civil Code is so broad that is includes not only injuries to person but also damage to property. It makes no distinction between “damage to persons” on the one hand and “damage to property” on the other. The word “damage” is used in two concepts: the “harm” done and “reparation” for the harm done. And with respect to “harm” it is plain that it includes both injuries to person and property since “harm” is not limited to personal but also to property injuries. (Cinco v. Canonoy G.R no. L-33171, May 31, 1979) Catch-All Provisions Under Ncc . Article 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. Article 20. Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same. Article 21. Any who willfully causes loss or injury to another in manner that is contrary to morals, customs or public policy shall compensate the latter for the damage. Is Tort Crime Or Is Crime Tort? . Tort is not a crime because it is another source of obligation but crime may be classified as tort when damages exist, such as when the elements of quasi-delict exist. Philippine Laws Include The . Following Torts: . 1. Defamation 2. Fraud 3. Physical Injuries 4. Violation of Constitutional Rights 5. Negligence 6. Interference with Contractual Relations 7. Violation of Privacy 8. Malicious Prosecution 9. Product Liability 10. Strict Liability for Possession of Animals 11. Abuse of Right 12. Act which Violate Good Morals 13. Civil Liability Arising from Criminal Liability Quasi-Delict V. Delict Sources of Vinculum Juris Quasi-Delict Negligent act/omission (culpa, imprudence) Delict Act/omissio n committed by increase of dolo (deliberate, . malicious, in bad faith) Proof Preponderan Proof Required ce of beyond evidence reasonable doubt Burden of Victim must Accused is Proof prove: presumed 1. Negligenc innocent e until the 2. Causal contrary is Connectio proved. n between negligence and damage done Liability of Solidary Subsidiary Employer Reservatio Civil aspect Civil aspect n of quasiis impliedly Requireme delict is instituted nt impliedly with instituted criminal with criminal action action but under the Rules it is separate and independent Effect of Not a bar to Not a bar to judgment recover civil recover civil of damages damages acquittal in except when a criminal judgment case pronounces involving that same negligence act/omissi from which on damage arise is nonexistent Culpa Aquilian V. Culpa Contractual Basis of Liability Nature of Negligence Quantum of Proof Existence of PreContractual Relationshi p Applicabilit y of Defense “Good father of a Family” Culpa Aquiliana Fault or Negligence resulting in damage or injury to other (Civil Code Art. 2176) Direct, substantive, and independen t Preponde rance of Evidence (ROC, Rule 133 Sec.1) None A complete and proper defense as regards to vicarious liability (Civil Code) Culpa Contractual Obligation arises from the breach of contract because of defendant’s failure to exercise due care in its performanc e(Civil Code Art 1173) Negligence is a merely incidental to the performanc e of an existing obligation Prepondera nce of Evidence (ROC, Rule 133 Sec.1) Exists Not a complete and proper defense in the selection and . Presumptio n of Negligence Governing Laws Burden of Proof None, injured party must prove the negligence of the defendant supervision of employees but can mitigate liability for damages Presumptio n of negligence immediately attaches by failure of a covenant or its tenor Arts. 11701174 of the Civil Code Arts. 2176, 1172-1174 of the Civil Code Victim must Party prove prove: the 1. following: Negligence 1. existence 2. Causal of contract Connection 2. breach between negligence and damage done Is Tort Law Applicable To Contracts? . GENERAL RULE: NO. (ARTICLE 2176) EXCEPTIONS: The act that breaks the contract may also be a Tort. (Air France vs Carrascoso) Who Can Sue? Will Civil Personality.Matter . - Liabilities CORPORATIONS PARTNERSHIP STATE . - Remedies Compensatory Preventive . Alternative Compensation Schemes . - Insurance - Worker's Compensation . Q and A . Is tort a crime? No. Because the very nature of tort is civil liability. Whereas in crime we go after the criminal liability. Is crime a tort? There will be instances where particular act may result in to two liability, criminal and civil liability aside from the fact that criminal act necessarily includes civil liability. You may also civilly liable based on quasi-delict. What is article 19 of the civil code? 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. What was the purpose of the framers of our civil code in introducing article 19 in the civil code? It is a catch-all provision that covers those acts whatever acts or omission not written in any other law are cover with this provision in relation that cause damage to another together with art. 20 and 21 of the same code. It likewise talks about the abuse of right. So when a person exercises his right, he must do so within the confines of his liberties without prejudiced to the rights of third persons. What is a quasi-delict? Is an act or omission which causes damage to another by means of fault or negligence. What is the difference between torts and quasi-delict? In torts in can be intentional or by fault or negligence. While on quasi-delict it should be purely negligence based on the elements provided under art. 2176. What concept applies in our Philippine legal system? Law on torts or law on quasidelict? Blending of law on torts and quasidelict because the original intention of our framers of our new civil code was to limit the nature of quasi-delict only to negligent act. However, the SC and likewise in the earlier provisions of the new civil code likewise admits or recognizes other intentional act which may be source of obligation as damages. Can someone who is acquitted for a crime of homicide be again charged civilly for damages? The reason of such acquittal is that the prosecution failed to prove the guilt of the accused beyond reasonable doubt. Yes. There are instances when the acquittal of the accused is based on the fact that he is not the perpetrator of the crime. So another person was actually criminally liable and another person was another person who caused damage to the person of the victim. So what will happen? Necessarily, that particular accused will not be likewise civilly liable because he was not the source of the damage. Based on the elements of quasi-delict, it should be the same person is the source of injury who inflicts such injury to another person. In such case that the guilt of the accused is not proved beyond reasonable doubt. Nagkaroon lang ng doubt yung court with respect to that person’s criminal liability but the civil liability may still be prosecuted. Can the State be liable to tort? As a general rule, NO, the State is not liable to tort. The only time that the state is liable to tort when the State entered into agreement in its personal capacity. Can a corporation be liable to tort? Who will be liable? The stockholders, members of such corporation or the Board of Directors? Yes. As a general rule, the corporation itself is liable because the corporation has a separate personality from its members, etc. However, in cases of close corporations, the stockholders, etc. will be held liable under the torts they committed because they are the ones who directly manages the corporation. NOTE: Res ipsa loquitur can be applied in cases of negligence where the evidence of causation is inaccessible to the plaintiff because under the second requisite of res ipsa loquitur, there would be impossibility to the part of the aggrieved party to have access to those pieces of evidence. Any practice which are dangerous to human life cannot ripen into customs which will protect anyone which follows it. In addition, the fact that you abide a particular custom, whether such custom endangers one’s life or not, does not necessarily mean that you are not negligent. NEGLIGENCE . Actionable negligence: . 1. Culpa contractual 2. Culpa aquiliana 3. Criminal negligence Art. 1157 sources of obligations: . 1. Law 2. Contracts (ART. 1170 – 1174 of NCC) 3. Quasi-Contracts 4. Delict 5. Quasi-Delict Delict . RPC. – ART. 365. IMPRUDENCE AND NEGLIGENCE. – Any person who, by RECKLESS IMPRUDENCE, shall commit any act which, had it been intentional, would constitute a grave felony, shall suffer the penalty of ARRESTO MAYOR in its maximum period to prision correccional in its maximum period; if it would have constituted a less grave felony, the penalty of ARRESTO MAYOR in its minimum period shall be imposed. Any person who, by SIMPLE IMPRUDENCE OR NEGLIGENCE, shall commit an act which would otherwise constitute a grave felony shall suffer the penalty of ARRESTO MAYOR in its medium and maximum periods; if it would have constituted a less serious felony, the penalty of ARRESTO MAYOR in its minimum period shall be imposed. RECKLESS IMPRUDENCE consists in voluntary, but without malice, doing or failing to do an act which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition, and other circumstances regarding persons, time, and place. SIMPLE IMPRUDENCE consists in the lack of precaution displayed in those cases in which the damage impending to be caused is not immediate nor the danger clearly manifest. Elements of Delict: . 1. The offender does/fails to do an act; 2. The doing/failure to do that act is voluntary; 3. It is without malice; 4. The material damage results from the reckless imprudence; and 5. There is inexcusable lack of precaution on the part of the offender taking into consideration his~ a. Employment/occupation b. Degree of intelligence c. Physical condition d. Other circumstances regarding~ i. Persons ii. Time; and iii. Place Quasi delict . NCC. – ART. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called QUASI-DELICT and is governed by the provisions of this Chapter. Requisites: 1. There must be an act or omission constituting fault or negligence. 2. Damage caused by the said act or omission. 3. Causal relation between the damage and the act or omission. Culpa Contractual vs. Culpa Aquiliana . Culpa Contractual Culpa Aquiliana The foundation It is a separate of the liability of source of the defendant is obligation the contract. independent of contract In breach of contract In quasi-delict committed the presumptive through the responsibility for negligence of the negligence of employee, the his servants can employer cannot be rebutted by erase his primary proof of the and direct exercise of due liability by care in their invoking exercise selection and of diligence of a supervision. good father of a family in the selection and supervision of the employee. Culpa Aquiliana vs. Delict Culpa Aquiliana Crime Only involves private concern The Civil Code by means of indemnification merely repairs the damage Includes all acts in which any kind of fault or negligence intervenes Affect the public interest The Revised Penal Code punishes or corrects criminal act Liability is direct and primary in quasidelict Punished only if there is a penal law clearly covering them Liability of the employer of the actor-employee is subsidiary in crimes Definition of Negligence . The omission of that degree of diligence which is required by the nature of the obligation and corresponding to the circumstances of persons, time and place. (Article 1173 Civil Code). Tests of Negligence . 1. Did the defendant in doing the alleged negligent act use the reasonable care and caution which an ordinarily prudent person would have used in the same situation? 2. Could a prudent man, in the case under consideration, foresee harm as a result of the course pursued? . NOTES: Negligence is a conduct - the determination of the existence of negligence is concerned with what the defendant did or did not do. Negligence is a conduct that creates an undue risk of harm to others. The determination of negligence is a question of foresight on the part of the actor – FORESEEABILITY. Forseeability involves the question of PROBABILITY, that is, the existence of some real likelihood of some damage and the likelihood is of such appreciable weight reasonably to induce, action to avoid it. Circumstances to consider in determining negligence 1. . :. Time Place The place of the incident is also material. 3. 4. 5. 5. Person exposed to the risk The character of the person exposed to the risk is also a circumstance that should be considered in determining negligence. Emergency Rule The time of the day may affect the diligence required of the actor. 2. 7. Emergency “Who can be wise, temperature and furious, loyal and neutral, in a moment? No man.” Gravity of Harm to be avoided Even if the odds that an injury will result are not high, harm may still be considered foreseeable if the gravity of harm to be avoided is great. Alternative Course of Action The gravity of the injury that will result if the actor took the alternative course of action was also considered. Social value or utility of activity The absence of a viable alternative should also be examined in the light of the social value of the activity involved. . GENERAL RULE: An individual who suddenly finds himself in a situation of danger and is required to act without much time to consider the best means that may be adopted to avoid the impending danger is not guilty of negligence if he fails to undertake what subsequently and upon reflection may appear to be a better solution. EXCEPTION: When the emergency was brought by the individual’s own negligence. Good father of a family (pater familias): . -A man of ordinary intelligence and prudence or an ordinary reasonable prudent man. Special rules 1. . Children The action of the child will not necessarily be judged according to the standard of an adult. But if the minor is mature enough to understand and appreciate the nature and consequence of his actions, he will be considered negligent if he fails to exercise due care and precaution in the commission of such acts. 2. Physical Disability Mere weakness of a person will not be an excuse in negligence cases. 3. Experts and Professionals They should exhibit the care and skill of one who is ordinarily skilled in the particular field that he is in. 4. Nature of Activity There are activities which by nature impose duties to exercise a higher degree of diligence. Example: Banks, by the very nature of their work, are expected to exercise the highest degree of diligence in the selection and supervision of their employees. 5. Intoxication GENERAL RULE: Mere intoxication is not negligence, nor does the mere fact of intoxication establish want of ordinary care. But it may be one of the circumstances to be considered to prove negligence. EXCEPTION: Under Art. 2185 of the Civil Code, it is presumed that a person driving a motor vehicle has been negligent if at the time of the mishap, he was violating any traffic regulation. 6. Insanity Bases for holding an insane person liable for his tort: a. Where one of two innocent persons must suffer a loss, it should be borne by the one who occasioned it. b. To induce those interested in the estate of the insane person to restrain and control him. c. The fear that an insanity would lead to false claims of insanity and avoid liability. 7. Women In determining the question of contributory negligence in performing such act, the age, sex, and condition of the passengers are circumstances necessarily affecting the safety of the passenger, and should be considered. Other Factors to Consider in Determining Negligence: . . A. VIOLATION OF RULES AND STATUTES 1. Statutes GENERAL RULE: Violation of a statutory duty is s. When the Legislature has spoken, the standard of care required is no longer what a reasonably prudent man would do under the circumstances but what the Legislature has commanded. EXCEPTIONS: a. When unusual conditions occur and strict observance may defeat the purpose of the rule and may even lead to adverse results. b. When the statute expressly provides that violation of a statutory duty merely establishes presumption of negligence. a 2. Administrative Rule Violation of a rule promulgated by administrative agencies is not negligence per se but may be EVIDENCE OF NEGLIGENCE. 3. Private Rules of Conduct Violation of rules imposed by private individuals is merely a POSSIBLE EVIDENCE OF NEGLIGENCE. B. PRACTICE AND CUSTOM Compliance with the practice and custom in a community will not automatically result in a finding that the actor is not guilty of negligence. Non-compliance with the practice or custom in the community does not necessarily mean that the actor was negligent. C. COMPLIANCE WITH STATUTES Compliance with a statute is not conclusive that there was no negligence. Degrees of Diligence . 1. Extraordinary diligence 2. Ordinary diligence 3. Slight diligence Degrees of Negligence 1. Gross negligence 2. Ordinary negligence 3. Contributory negligence . Gross Negligence . Negligence where there is want of even slight care and diligence. Proof of Negligence . GENERAL RULE: If the plaintiff alleged in his complaint that he was damaged because of the negligent acts of the defendant, the plaintiff has the burden of proving such negligence. EXCEPTIONS: Exceptional cases when the rules or the law provides for cases when negligence is presumed. A. Presumptions of Negligence B. Res Ipsa Loquitur A. Presumptions of Negligence . 1. In motor vehicle mishaps, the owner is presumed negligent if he was in the vehicle and he could have used due diligence to prevent the misfortune. (Article 2184 Civil Code) 2. It is disputably presumed that a driver was negligent if he had been found guilty of reckless driving or violating traffic regulations at least twice for the next preceding two months. (Article 2184 Civil Code) 3. The driver of a motor vehicle is presumed negligent if at the time of the mishap, he was violating any traffic regulation. (Article 2185 Civil Code) 4. GENERAL RULE: Prima facie presumption of negligence of the defendant arises if death or injury results from his possession of dangerous weapons or substance. EXCEPTION: When such possession or use is indispensable to his occupation or business. (Article 2188 Civil Code) 5. GENERAL RULE: Presumption of negligence of the common carrier arises in case of loss, destruction or deterioration of the goods, or in case of death or injury of passengers. EXCEPTION: Upon proof of exercise of extraordinary diligence. B. Res Ipsa Loquitur . - “The thing or transaction speaks for itself.” - It is a rule of evidence peculiar to the law of negligence which recognizes that prima facie negligence may be established in the absence of direct proof, and furnishes a substitute for specific proof of negligence. REQUISITES OF RES IPSA LOQUITOR: 1. The accident was of a kind which ordinarily does not occur in the absence of someone’s negligence; 2. The instrumentality which caused the injury was under the exclusive control and management of the person charged with negligence; and 3. The injury suffered must not have been due to any voluntary action or contribution on the part of the person injured; absence of explanation by the defendant. . Q and A . Mr. A has with him a gun with the intention of shooting B, in fact, he already pointed to the gun to B. However, C see Mr. A pointed the gun to Mr. B but Mr. A already triggered the gun. Mr. C wanted to pari the gun shot to that effect natabig niya ung kamay ni A. to that effect, Mr A. fails to shoot Mr. B. however, since Mr. A already fired the gun, it hits the tire of a bus, to that effect the bus bumped and 3 persons died, D, E, and F. May A be charge for negligence for the death of D, E, and F? No. The definition of negligence case is omission of the due diligence required based on the nature of the obligation corresponding to person, time, and place. It does not fit the definition of negligence. The abovementioned separate criminal negligence from actual criminal delict. Because when we speak of criminal delict, palaging may kasamang intent when we speak of delict. Eto ung nagseseparate sa negligence, when there’s negligence there’s an absence of intent, negligence lang ang nandon. What are the two test of negligence? Did the defendant in doing the alleged negligent act use the reasonable care and caution which an ordinarily prudent person would have used in the same situation? Could a prudent man, in the case under consideration, foresee harm as a result of the course pursued? Is negligence the absence of diligence? Yes. Negligence the absence of diligence, so that when a person was not actually diligence, he is negligent. However, when we speak of diligence under our civil code, there are degrees of diligence required for every situation or for every person in the performance of his act or in the exercise of his function. Which must be prove in court, is it the negligence or is it the diligence? Negligence act must be prove in court. Is that absolute? No, because sometimes in proving that you have the diligence to compete may be held as a valid defense against negligence. What are the instances that when the plaintiff did not need to prove the negligence? It’s the defendant that must prove that he is diligent. When there’s a presumption of negligence and in cases of res ipsa loquitur. When the accused pleads justifying, exempting, and other justifiable circumstances. In that case, he has to prove that such circumstances exist. What is the very rationale why the doctrine of res ipsa loquitur is being applied here in the Philippines or even in various countries? Why in the doctrine of res ipsa loquitur we tend to shift the burden to the defendant in proving that he is indeed diligence? Because there is no direct evidence to prove that the defendant is liable, only circumstantial. Ditto pumpasok yung direct exclusive control and management of the person charged with negligence. NOTES: When medical practitioners did not give help to those persons that are in distress in case of emergency they are civilly liable because they have special oaths, under that oath they are liable. If they are liable under their oath will they be civilly liable or administratively liable? Both because in all other cases that cannot be covered by the civil code, there is an all and compassing provisions (Art. 1921). However, unlike in criminal liability that it is together with civil liability. - - AFFIRMATIVE DUTIES . Tort . The tort is a civil wrong or a breach of duty which is caused by one person and on the basis of that fault, the court imposes liability and provides compensation for personal injury caused or damage to any property. NATURE OF MISFEASANCE AND NONFEASANCE . . Misfeasance . Breach of General Negative Duty It means the “Improper performance of some lawful act”. Misfeasance means carrying out legal and improper action, but it is done in such a way that it harms others or causes injury to other people. Examples: 1. If a doctor performs an operation by using rusted tools or leaves an alien object in the stomach during the procedure. Generally, the defendant will be liable for misfeasance as the defendant owes a duty of care towards the plaintiff and did not perform his duty properly. Hence, doing an operation is a lawful act but there is an improper performance of the lawful act. 2. A janitor is cleaning a restroom in a restaurant and is irresponsible and leaves the floor wet without any warning sign or board. In such a case, he or his employer could be held liable for any injury caused because of the wet floor. This is because the janitor owed a duty of care toward users of the restroom, and he breached that duty by leaving the floor wet and therefore would be held liable. It will come under misfeasance as the act was lawful but there was an improper performance of the lawful act. Nonfeasance - - . Breach of Affirmative Duties Nonfeasance is the intentional failure to perform a required duty or obligation. It is an act of intentionally neglecting to carry out a duty which is an obligation and because of the failure to perform the duty, someone is harmed or injury has been caused. Example: A clock tower fell down in India, many people were injured and many died. The clock tower was not repaired for many years and the municipal corporation was required to maintain it. The Municipal Corporation failed to do so and the tower collapsed. The municipal corporation was held liable as it was their duty to repair the clock which they failed to do so. It can be called as nonfeasance as there was an omission in performing the compulsory act. Difference between Misfeasance and Nonfeasance Misfeasance Nonfeasance It means Nonfeasance, “improper on the other performance of hand, is an some lawful omission from act”. discharging The term duty. “misfeasance” is The term nonutilized in Tort feasance . . law to describe any act that is lawful yet which has been performed inappropriately or in an unlawful manner. describes the failure to do any act that causes harm to another person. In conclusion, misfeasance is the commission of a lawful act in an improper manner and nonfeasance means failure to perform an act where there is a necessity to perform the act. DUTY TO RESCUE . Z, an electric company, after multiple emergency report, failed to repair or reconnect a live wire that was cut and was hanging because of a typhoon. The owner of the house went to Z office to request for reconnection. In the meantime, the live wire electrocuted X, who is a child. Seeing the incident, Y hurried to X to help him by taking off his wooden shoes and sticking the wire away in his desire to save X. Unfortunately, when the wire was released from underneath X’s body, the wire coiled around Y’s leg. A. Is Z liable for the injury that Y incurred in saving X? B. Should Y be guilty of contributory negligence because of his actions to save X that results to his own injury? Good Samaritan Rule: Duty to the Rescuer. Rousseau believes that we have “an innate repugnance at seeing a fellow creature suffer. That it is this compassion that hurries us without reflection to the relief of those who are in distress. It is in this consideration that courts make defendants/torfeasor liable for the injuries to person who rescue people in distress because of the acts or omissions of the said defendants. Answers: A. The SC held that one who was hurt while trying to rescue another who was injured through negligence of another may recover damages. Here, the delay of Z company to provide technical assistance despite the number of emergency reports constitutes negligence. Hence, the court held that awarding of damages to Y is proper. NOTE: According to Justice Cardozo in Wagner v. . International Ry. Co., . “Danger invites rescue.” The cry of fistress is the summons to relief......The wrong that imperils life is a wrong to the imperilled victim; it is wrong also to his rescuer. Example: Based on the case of Santiago v. De Leon, Contributory Negligence is a behavior that contributes to one’s own injury or loss and fails to meet the standard of prudence that one should observe for one’s own good. B. No. Y should not be guilty of contributory negligence. The court held that conduct which might otherwise be considered contributory negligence may not be so considered where a person is injured in attempting to save others from imminent danger of personal injury or death. The court further stated that to act immediately was the pressing need of the moment and to be unduly cautious would have been fatal to the child. Hence, Y is held justified in assuming greater risks in the protection of human life (X). Duty to Rescue . This legal duty pertains to the liability on the part of the person (rescuer) who should have acted in a manner that is consistent with mans natural compassion. However, the question is: a. Is a person who did not rescue another who is in distress liable to the latter? Is there a general duty to rescue? b. How about the eyewitnesses in a crime, should they be obligated to rescue the victim? General rule: A. A person has no duty to rescue another person who is in peril. Even if the failure to help a victim of an accident might be morally reprehensible, the person who abstained from helping the victim is not legally responsible. Hence, even in an extreme situation, such as where an adult sees a child trapped on top of railroad tracks, courts generally find that a person is under no duty to come to the aid of another. B. The non-imposition of a duty to rescue is true even in cases involving intentional acts, such as in the case of eyewitness who were able to see such commission of the crime. Thus, witnesses to commission of crimes are not expected to help the victims of the said crime. The courts stated that, witnessing a crime is an unusual experience which elicits different reactions from the witnesses and for which no clear-cut standard form of behavior can be drawn. Exceptions: 1. Exceptions under the Revised Penal Code and Special Law; 2. Exceptions Imposed on Persons with Special Relationship; Exceptions under the Revised Penal Code . and Special Law . 1. Article 275. Abandonment of Persons in Danger and Abandonment of One's Own Victim. — The penalty of arresto mayor shall be imposed upon: Anyone who shall fail to render assistance to any person whom he shall find in an uninhabited place wounded or in danger of dying, when he can render such assistance without detriment to himself, unless such omission shall constitute a more serious offense. Anyone who shall fail to help or render assistance to another whom he has accidentally wounded or injured. Anyone who, having found an abandoned child under seven years of age, shall fail to deliver said child to the authorities or to his family, or shall fail to take him to a safe place. 2. R.A. No. 4136, Land Transportation and Traffic Code SECTION 55. Duty of Driver in Case of Accident. – In the event that any accident should occur as a result of the operation of a motor vehicle upon a highway, the driver present, shall show his driver’s license, give his true name and address and also the true name and address of the owner of the motor vehicle. No driver of a motor vehicle concerned in a vehicular accident shall leave the scene of the accident without aiding the victim, except under any of the following circumstances: 1. If he is in imminent danger of being seriously harmed by any person or persons by reason of the accident; 2. If he reports the accident to the nearest officer of the law; or 3. If he has to summon a physician or nurse to aid the victim. Special Relationship . A defendant may be under a duty to rescue if the defendant has a special relationship with the victim, such as in an employer-employee, parent/guardian-child, or a school-student relationship. Owners, Proprietors, and Possessors protection or even to protect him from concealed danger. The trespasser comes on to the premises at his own risk. The owner has no duty to maintain his property in such a danger free state just to prevent trespasser from being injured. B. State of Necessity Owners and possessors of real estate owe a duty to allow trespassers, who are in a state of necessity, to enter their properties. Art. 432 of the Civil Code states that the owner of the thing has no right to prohibit the interference of another with the same, if the interference is necessary to avert an imminent danger and threatened damage, compared to damages arising to the owner from the interference, is much greater. C. Tolerated Possessor . The owner is liable if the plaintiff is inside his property by tolerance or by implied permission, such as in the case of Rodrigueza v. Manila Railrod Co. . D. Visitors Generally, the owner is not liable to any person who might be damaged if he is merely exercising his right as such. Damage to any person resulting from the exercise of any of the rights of ownership is damage without injury. It can even be argued that the owner commits no negligence even if he carelessly caused damage by the exercise of his right because no duty of care is owed to anybody. A. Trespassers . . The owner has no duty to take reasonable care towards trespasser for his . Under the same line of reasoning, owners of buildings or premises owe a duty of care to visitors. In the case of Cabigao, the plaintiff sat on a concrete bench inside the Dental Building of defendant University while visiting a student therein. When the plaintiff moved over from the bench, one of its concrete legs fell upon the left foot of the plaintiff causing fracture thereto. The court awarded damage in favor of plaintiff and rejected the argument of the defendant that plaintiff was a trespasser because the defendant’s answer contains an admission that she was a visitor. D.1. Visitors in Common Carriage . Common carriers may also be held liable for negligence to persons who stay in their premises even if they are not passengers. Such duty of common carriers to provide safety to its passengers so obligates it not only during the course of the trip but for so long as the passengers are within its premises and where they ought to be in pursuance to the contract of carriage. E. Children and Attractive Nuisance Rule . children. The owner of a private property is not liable if he merely duplicated the work of nature by creating an artificial pool on his own property without adding new danger. Another qualification to the rule that owners do not have a duty of care towards uninvited persons is what is knows as the “Attractive Nuisance Rule”. This rule, however, serves as limitation to the rule of contributory negligence. Under the rule, an owner is liable if he maintains in his premises dangerous instrumentalities or appliances of a character likely to lure children in play and he fails to exercise ordinary care to prevent children of tender age from playing therewith. The court recognized railway turntables, explosives, electrical conduits, smoldering fires, and rickety structure as Attractive premises/instrumentalities. How about a swimming pool? Can that be considered as an attractive nuisance? - The court held that a swimming pool or pond or reservoir of water is not considered attractive nuisance. The court explained that nature has created streams, lakes, and pools which attract F. State of Necessity - - . Owners and possessors of real estate also owe a duty to allow trespassers, who are in a state of necessity, to enter their properties. Art. 432 of the Civil Code states that “the owner of the thing has no right to prohibit interference of another with the same, if the interference is necessary to avert an imminent danger and threatened damage, compared to damages arising to the owner from the interference, is much greater.” G. Liability to Neighbors s and Third Persons . . Art, 431 of the NCC provides that an owner cannot use his property in such a manner as to injure the rights of others. Thus, an exercise of the right of the owner may give rise to an action based on quasidelict, if the owner negligently exercises such right to the prejudice of another. Example: If the owner negligently constructed a pond on its property and allows it to overflow to the neighboring lots. Liability shall be imposed to the owner of a piggery farm because the land of his neighbor was flooded by waste water containing pig manure. G.1. Negligence of Manufacturers and Other Establishments . . H. Employers and Employees In the same manner, the negligence of the business establishments would make them liable for the damage and injury caused to their neighbors. Example: A fire started in the business establishment and broke out because of their negligence thereby destroying the neighboring houses. H. Liability of Proprietors of Building s. Article 2190. The proprietor of a building or structure is responsible for the damages resulting from its total or partial collapse, if it should be due to the lack of necessary repairs. (1907) Article 2191. Proprietors shall also be responsible for damages caused: (1) By the explosion of machinery which has not been taken care of with due diligence, and the inflammation of explosive substances which have not been kept in a safe and adequate place; (2) By excessive smoke, which may be harmful to persons or property; (3) By the falling of trees situated at or near highways or lanes, if not caused by force majeure; (4) By emanations from tubes, canals, sewers or deposits of infectious matter, constructed without precautions suitable to the place. (1908). . Employers, by engaging the services of another as employee, impliedly agree to use reasonable care to provide reasonably safe premises and places in and about which the servant is required to work, to furnish reasonably safe and suitable machinery, and a sufficient supply of proper materials, tools , and appliances. Along with the equipment supply, the employer shall provide a training for the utilization of the equipment and provide warning of any secret danger which the employer is aware. Question: 1. X, an employeee of ABC Company allegedly suffered incurable workcontracted disease becaue of continued and prolonged exposure to textile dust seriously inimical to his health. (Indophil Textile Mills, Inc. v. Adviento) Is ABC liable for damages against X? Answer: Employing this rule, ABC company shall be liable for its gross negligence in its failure to provide safe, healthy and workable environment for X. Hence, ABC shall indemnify X for damages. Thus, proper maintenance of the workplace or the provision of adequate facilities to ensure the safety of the employees is imposed upon employers. Failure on their part to comply with such mandatory act may be considered negligence on their part. 2. X, the Vice President of ABC company, signed checks and disbursed funds of the corporation for an unauthorized trip abroad of another employee. (Araneta v. De Joya) Should X be liable for the monetarial loss incurred by ABC? Answer: Employees are also bound to exercise due care in the performance of their functions for the employers. Absent such care, the employee may be held liable. The liability may be based on negligence committed while in the performance of the duties of the employee. Hence, in the case at bar, X shall be held liable because he is guilty of neglecting to perform his duties properly to the damage of the company. MALPRACTICE Malpractice (negligence of experts) . . 2. The breach of duty by the physician's failing to act in accordance with the applicable standard of care; 1. Healthcare Professionals 2. Lawyers 3. Accountants and Auditors Negligence of health care professionals . A. Medical Malpractice B. Liability of Hospitals C. Nurses D. Pharmacists E. Clinical Laboratories Medical Malpractice 1. 2. 3. 4. 3. The causation (i.e., there must be a reasonably close and casual connection between the negligent act or omission and the resulting injury); and 4. The damages suffered by the patient. Doctor-Patient Relationship . It is a particular form of negligence which consists in the failure of a physician or surgeon to apply to his practice of medicine that degree of care and skill which is ordinarily employed by the profession generally under similar conditions, and in like surrounding circumstances. Elements of liability For Medical Malpractice specific norms or standards established by his profession (standards of care); . . Duty Breach Proximate causation Injury Dr. Fernando P. Solidum vs. People, G.R. No. 192123, 10 March 2014, Specifically, the Supreme Court explained that it is necessary to prove by competent evidence the following elements: 1. The duty owed by the physician to the patient, as created by the physicianpatient relationship, to act in accordance with the . A physician-patient relationship may be created when the professional services of a physician are rendered to and accepted by another for purposes of medical or surgical treatment. Physician-patient relationship may arise when a physician gives advice to a patient, even if the advice is communicated through another health care professional. Duty . A physician is under a duty to exercise that degree of care, skill, and diligence which physicians in the same general neighborhood and in the same general line pf practice ordinarily possess and exercise in like cases. (Lucas vs Tuano) Duty refers to the standard of behaviour which imposes restrictions on one's conduct. The standard in turn refers to the amount of competence associated with the proper discharge of the profession. (Spouses Flores vs. Spouses Pineda) Doctors have a duty to use at least the same level of care that any other reasonably competent doctor would have use to treat a condition under the same circumstances. (Garcia-Rueda vs Pascasio) Breach . There is breach of duty of care, skill and diligence, or the improper performance of such duty, by the attending physician when the patient is injured in body or in health [and this] constitutes the actionable malpractice. Proof of such breach must likewise rest upon the testimony of an expert witness that the treatment accorded to the patient failed to meet the standard level of care, skill and diligence which physicians in the same general neighborhood and in the same general line of practice ordinarily possess and exercise in like cases. Proximate Cause and Injury . There must be a causal connection between said breach and the resulting injury sustained by the patient. "Injury for which recovery is sought must be the legitimate consequence of the wrong done; the connection between the negligence and the injury must be a direct and natural sequence of events, unbroken by intervening efficient causes"; that is, the negligence must be the proximate cause of the injury. And the proximate cause of an injury is that cause, which, in the natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. Standard of Care . The doctor must use at least the same level of care that any reasonably competent doctor would use to treat a condition under the same circumstances. The standard contemplated is not the average merit among all known practitioners from the best to the worst and from the most to the least experienced, but the reasonable average merit among the ordinarily good physicians. General Practitioners vs Specialist . The standard of care demanded from a General Practitioner is ordinary care and diligence in the application of his knowledge and skill in his practice of the profession. A Specialist’s legal duty to the patient is generally considered to be that of an average specialist, not that of an average physician. National Standards . Each physician may with reason and fairness be expected to possess or have reasonable access to such medical knowledge as is commonly possessed or reasonable available to competent physician in the same specialty or general field of practice in the Philippines. The standard is a national standard and not the standard of a particular community. Locality Rule in Relation to Facilities . Each physician has a duty to have a practical working knowledge of the facilities, equipment, resources, and options reasonably available to him or her as well as the practical limitations on the same. Neighborhood Rule . A physician is under a duty to the patient to exercise that degree of care, skill, and diligence which physicians in the same general neighborhood and in the same general line of practice ordinarily possess and exercise in like case. Common Professional Practice . “Resident doctors” are licensed doctors under training for a particular specialty. They are merely “subordinate who usually defer to the attending physician on the decision to be made and on the action to be taken.” While attending and resident physicians share the collective responsibility to deliver safe and appropriate care to the patients, it is the attending physician who assumes the principal responsibility of patient care. Doctors are not Warrantors Error in Judgment . 1. Our duty in medical malpractice cases is to decide - based on the evidence adduced and expert opinion presented whether a breach of duty took place. . Compliance with common professional practice in a similar situation is a strong evidence that the doctor has not been negligent. Doctors do not usually adopt a practice unless it is consistent with the degree of case required of them under the circumstances Negligence of Residents Error of judgment will not necessarily make the physician liable. . Physicians are not warrantors of cures or insurers against personal injuries or death of the patient. Difficulties and uncertainties in the practice of profession are such that no practitioner can guarantee results. 2. When the physician's erroneous diagnosis was the result of negligent conduct (e.g., neglect of medical history, failure to order the appropriate tests, failure to recognize symptoms), it becomes an evidence of medical malpractice. 3. Error is possible as the exercise of judgment is called for in considering and reading the exhibited symptoms, the results of tests, and in arriving at definitive conclusions. But in doing all these, the doctor must have acted according to acceptable medical practice standards." Expert Testimony . Expert testimony should be offered to prove that the circumstances cited by the courts below are constitutive of conduct falling below standard of care employed by other physicians in good standing when performing the same operation. What must be established? 1. The standard of care that the defendant was bound to observe under the circumstances; 2. That the defendant's conduct fell below the acceptable standard; and 3. That the defendant's failure to observe the industry standard caused injury to his patient. Res ipsa loquitur . It allows the mere existence of an injury a presumption of negligence on the part of the person who controls the instrument causing the injury, provided that the following requisites concur: 1. 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 or defendants; and 3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated. Doctrine of Common Knowledge Lost Chance Rule . One of the problem regarding medical malpractice is the right to recover in lost chance cases. The question is whether the patient can recover for the lost opportunity to obtain a better degree if recovery. Doctrine of Informed Consent . Unless excused, the doctor must secure the consent of his patient to a particular treatment or an investigative procedure. Consent is an integral part of the physician-patient relationship and doctors re duty bond to obtain the authorization for care carried out in their offices or elsewhere. However, consent of the patient may be express or implied. . The Doctrine of Common Knowledge is applied in the following cases involving medical practitioners: 1. Where a patient who was scheduled for a cholecystectomy (removal of gall stones) but was otherwise healthy suffered irreparable brain damage after being administered anesthesia prior to the operation; 2. Where after giving birth, a woman woke up with a gaping burn wounds close to her left armpit; 3. The removal of the wrong body part during the operation; 4. Where an operating surgeon left a foreign object inside the body of the patient. Exception: 1. Emergency situation. Consent to treatment generally need not to be secured if time is of the essence. 2. Where the patient is unconscious or otherwise incapable of consenting and harm from failure to treat is imminent and outweighs any harm threatened by the proposed treatment. Elements of Liability: a. Existence of doctor-patient relationship; b. The physician has a duty to disclose material risk; c. The physician failed to disclose or inadequately disclosed those risks; d. As a direct and proximate result of the failure to disclose, the patient consented to treatment she otherwise would not have consented to; and e. The plaintiff was injured by the proposed treatment. Captain of the Ship Doctrine . The doctor cannot blame assisting nurse for his own omission. the Liability of Hospitals - . Between the hospital and the doctor practicing within its premise. Between the hospital and the patient being treated or examined within its premises. Between the patient and the doctor. Where an employment relationship exists, the hospital may be held vicariously liable under Article 2176 in relation to Article 2180 of the Civil Code or the principle of respondent superior. Even when no employment relationship exists but it is shown that the hospital holds out to the patient that the doctor is its agent, the hospital may still be vicariously liable under Article 2176 in relation to Article 1431 and Article 1869 of the Civil Code or the principle of apparent authority. Moreover, regardless of its relationship with the doctor, the hospital may be held directly liable to the patient for its own negligence or failure to follow established standard of conduct to which it should conform as a corporation." may be held directly liable to the patient for its own negligence or failure to follow established standard of conduct to which it should conform as a corporation." The hospital has the duty to make a reasonable effort to monitor and oversee the treatment prescribed and administered by the physicians practicing in its premises. "The corporate negligence doctrine imposes several duties on a hospital: (i) to use reasonable care in the maintenance of safe and adequate facilities and equipment; (ii) to select and retain only competent physicians; (iii) to oversee as to patient care all persons who practice medicine within its walls; and (iv) to formulate, adopt, and enforce adequate rules and policies to ensure quality care for its patients. Nurses: RA No.9173 "Carries with it the profession's responsibility for continuing high educational standards and the individual nurse's responsibility to conduct herself or himself in a professional manner. The hallmark of the professional is the skill to know the limits of one's professional knowledge. A nurse who assumes the care of a patient must exercise that degree of skill, care, and knowledge ordinarily possessed by other nurses under the same circumstances. The nurse must exercise her professional judgment but such judgment must not represent a departure from the requirements of accepted nursing practice. Pharmacist: RA No. 5921 Doctrine of Corporate Responsibility . . . The Court observed in Professional Services, Inc. v. Agana, "0 that "regardless of its relationship with the doctor, the hospital Pharmacists are to use the degree of care that persons of ordinary prudence engaged in the profession are accustomed to use under the same or similar circumstances. The ordinary care required has been further defined as the highest practicable degree of prudence, thoughtfulness, and vigilance, and the most exact and reliable safeguards consistent with the conduct of the profession, in order that human life may not constantly be exposed to the danger flowing from the substitution of harmful medicines for harmless ones. Clinical Laboratories Accountants The accountant is liable based on contract and quasi-delict for any negligent act that caused damage or injury to its client. The standard to be applied is that of an ordinary accountant skilled in the knowledge, science skill and practice of accounting rendering his professional services for his or her client. . Auditors Need for a licensed physician: The rules requiring licensed practitioners are intended for the protection of the public by preventing performance of substandard clinical examinations by laboratories whose personnel are not properly supervised. The public demands no less than an effective and efficient performance of clinical laboratory examinations through compliance with the quality standards set by laws and regulations. If the clinical laboratory lacks the required license and personnel, the operator of the clinical laboratory is deemed negligent because violation of a statutory duty is negligence. Negligence of Lawyers . . BASIS OF RESPONSIBILITY: CANON 18: A lawyer shall serve his client with competence and diligence CANON 18.03: A lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable. SC: An attorney is not bound to exercise extraordinary diligence, but only a reasonable degree of care and skill, having reference to the character of the business he undertakes to do. . The financial statements are representations of the client; but it is the auditor who has the responsibility for the accuracy in the recording of data that underlies their preparation, their form of presentation, and the opinion expressed therein. In general, an accountant's liability to third person is determined by balancing various factors, including extent to which transaction was intended to affect the third party, the foreseeability of harm to third party, the closeness of the connection between accountant's conduct and injury suffered, the moral blame attached to the accountant's conduct and the policy of preventing future harm. . Q and A . What are the elements of liability for medical malpractice? 1. 2. 3. 4. Duty Breach Proximate causation Injury Let’s say that a doctor or hospital does not have the license to practice medically? Can he be civilly liable under the concept of torts? Yes. Even in the absence of the requisites in medical malpractice such doctor or hospital is liable because the absence of medical license is a negligent act per se in medical malpractice. What if the doctor left a foreign object/instrument inside the body of the patient, and because of that foreign object left in a body it causes damage to that person. Do we need still to prove the elements of medical malpractice? No. When it comes to those cases, under the control and supervision of the doctor/hospital there is a prima facie presumption under the doctrine of res ipsa loquitur. Which means that since there’s a prima facie presumption of negligence, there’s no need to prove all other elements since the burden of proof now shifts to the practitioner to prove that he is no negligent. What if it was not the doctor who was not the one who forgot, e.g. the nurse. Would the doctor be liable? Yes. Under the Captain of the ship rule, despite the fact that he/she is not the one who made the actual breach, he is liable. Because he is responsible for everything that should takes place within his jurisdiction or within his control or supervision. Allan, a grab driver, one night when he is waiting for client over the platform. Christine, a client, booked a ride. At first, it was an ordinary booking but later on he realize that Christine was his previous lover during his law school days. When Allan realize that fact, he then suddenly experience a palpitation then Christine, a registered nurse, sudden noted what’s happening, to that effect the latter gives a first aid to the former (CPR). Instead that Allan gets into better condition, it got worsen. Is Christine Liable? No. Under the Good Samaritan Rule, a person who comes to the aid of an injured or ill person is protected from being sued for contributory negligence as long as the volunteer aid-giver acted with reasonable care and in good faith. Christine would only be liable if she is not permitted or license to give such first aid. NOTE: Medical practitioner cannot be held liable for a mere error in judgment. NEGLIGENCE OF SELECTED USINESS ORGANIZATIONS Business Organization . . . • An entity formed for the purpose of carrying on commercial enterprise or generating profits • Business enterprises customarily take one of three forms: individual proprietorship, partnership, or corporation. 1. Schools and Administrators . Doctrine of Corporate Responsibility Every corporation which undertakes to operate a business enterprise which is of the kind and nature that it invites the public to cater to its services, is bound to ensure that those who avail of its services are duly protected and that the corporation has a duty to exercise reasonable care to protect the availing public from harm when he uses its facilities, including the obligation to oversee and supervise all persons who operate such facilities, as well as the obligation to take an active step in remedying the negligence committed within its premises. • Schools can be made directly liable for negligence based on contract or quasi-delict in the performance of their contractual duties. • Special Parental Authority (Family Code) - Art. 218. The school, its administrators and teachers, or the individual, entity or institution engaged in child care shall have special parental authority and responsibility over the minor child while under their supervision, instruction or custody. Authority and responsibility shall apply to all authorized activities whether inside or outside the premises of the school, entity or institution. - Art. 219. Those given the authority and responsibility under the preceding Article 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 of those referred to in the preceding paragraph shall not apply if it is proved that they exercised the proper diligence required under the particular circumstances. All other cases not covered by this and the preceding articles shall be governed by the provisions of the Civil Code on quasidelicts. a. Liability of schools based on contract . • School-student relationship is contractual in nature which gives rise to bilateral or reciprocal rights and obligations. “The school is still liable because all academic institutions enter into a contract with all its enrollees. Part of the obligations of this contract is the providence of an adequate atmosphere of safety for its students to maintain peace and order.” (Phil. School of Business Administration vs. CA) b. Liability of schools for quasi-delict . • Even in the absence of contract, the school may still be liable as employer under Article 2176 of the Civil Code. • It was established that liability from tort may still exist even if there is a contract, because the act that breaks the contract may also be a tort. (Regino vs. Pangasinan Colleges of Science andTechnology) 1.01. Examples of negligence of Schools . and Administrators . Exposing a student in danger - Trapped in a comfort room - Slipped on a wet floor due to water leak - Accidents and injuries 2. Banks . • Public interest • With meticulous care • High degree of obligation • Fiduciary nature • Utmost fidelity • Depositor may file action for damages (Philippine Bank of Commerce vs. CA) • Forgery in the check drawn against a bank (Sec. 23 of NIL) 3.02. Security Agency and Guards • “The guard and his security agency are liable for the former’s negligence in handling firearms.”(Safeguard Security Agency, Inc. vs.Tangco) • Solidary liability for damages imposed on the security agency and security guard. (Lamis vs.Ong) 4. RESORT and SWIMMING POOL OPERATOR 3.01. Firearms Dealer . . • Exercise of ordinary care and prudence in the management and maintenance of resorts, making them reasonably safe for visitors. (Ong vs. Metropolitan Water District” 5. Hotels 3. Firearms Related Negligence . . . . • Higher degree of care (possession of dangerous weapons or substances) • Duty to take exceptional precautions to prevent an injury • Gun storeowner - Presumed to be knowledgeable about firearms safety - Never keep a loaded weapon in store - Duty to ensure that all guns in his store are not loaded - Firearms should be stored unloaded and separate from ammunition - Guns accepted by the store for repair should not be loaded (Pacis vs. Morales) • Article 102, RPC Subsidiary civil liability of innkeepers, tavern keepers and proprietors of establishments. - In default of the persons criminally liable, innkeepers, tavern keepers, and any other persons or corporations shall be civilly liable for crimes committed in their establishments, in all cases where a violation of municipal ordinances or some general or special police regulation shall have been committed by them or their employees. Innkeepers are also subsidiarily liable for the restitution of goods taken by robbery or theft within their houses from guests lodging therein, or for the payment of the value thereof, provided that such guests shall have notified in advance the innkeeper himself, or the person representing him, of the deposit of such goods within the inn; and shall furthermore have followed the directions which such innkeeper or his representative may have given them with respect to the care and vigilance over such goods. No liability shall attach in case of robbery with violence against or intimidation of persons unless committed by the innkeeper's employees. Necessary Deposit . • Article 1998. The deposit of effects made by travellers in hotels or inns shall also be regarded as necessary. The keepers of hotels or inns shall be responsible for them as depositaries, provided that notice was given to them, or to their employees, of the effects brought by the guests and that, on the part of the latter, they take the precautions which said hotel-keepers or their substitutes advised relative to the care and vigilance of their effects. (1783) • Article 1999. The hotel-keeper is liable for the vehicles, animals and articles which have been introduced or placed in the annexes of the hotel. (n) • Article 2000. The responsibility referred to in the two preceding articles shall include the loss of, or injury to the personal property of the guests caused by the servants or employees of the keepers of hotels or inns as well as strangers; but not that which may proceed from any force majeure. The fact that travellers are constrained to rely on the vigilance of the keeper of the hotels or inns shall be considered in determining the degree of care required of him. (1784a) • Article 2001. The act of a thief or robber, who has entered the hotel is not deemed force majeure, unless it is done with the use of arms or through an irresistible force. (n) • Article 2003. The hotel-keeper cannot free himself from responsibility by posting notices to the effect that he is not liable for the articles brought by the guest. Any stipulation between the hotel-keeper and the guest whereby the responsibility of the former as set forth in articles 1998 to 2001 is suppressed or diminished shall be void. (n) 6. Theater . Exercise of due diligence includes compliance of laws such as: • National Building Code • Considered as a public assembly building (Revised Fire Code of the Philippines) Sec. 8, Fire Code . SECTION 8. Prohibited Acts. -The following are declared as prohibited act and omission: a. Obstructing or blocking the exit ways or across to buildings clearly marked for fire safety purposes, such as but not limited to aisles in interior rooms, any part of stairways, hallways, corridors, vestibules, balconies or bridges leading to a stairway or exit of any kind, or tolerating or allowing said violations; b. Constructing gates, entrances and walkways to building components and yards, and temporary or permanent structures on public ways, which obstruct the orderly and easy passage of fire fighting vehicles and equipment; c. Prevention, interference or obstruction of any operation of the fire service, or of duly organized and authorized fire brigades; d. Obstructing designated fire lanes or access to fire hydrants; e. Overcrowding or admission of persons beyond the authorized capacity in movie houses, theaters, coliseums, auditoriums or other public assembly buildings, exception other assembly areas on the ground floor with open sides or open doors sufficient to provide safe exits; f. Locking fire exits during period when people are inside the building; g. Prevention or obstruction of the automatic closure of fire doors or smoke partitions or dampers; h. Use of fire protective or firefighting equipment of the fire service other than for firefighting except in other emergencies where their use are justified; i. Giving false or malicious fire alarms; accident is such as in the ordinary course of events would not have happened if proper care had been exercised, its occurrence raises a presumption or permits of an inference of negligence on the part of the defendant.”(Gotesco Investment Corp. v. Chatto) 7. Electric and Power Companies a. Burning wires (Julian Del Rosario vs. Meralco) b. Sagging and dangling wires (Napocor vs. Heirs of Noble Casionan) j. Smoking in prohibited areas as may be determined by fire service, or throwing of cigars, cigarettes, burning objects in places which may start or cause fire; c. Dangerous place of installation and uninsulated wires 8. Building Contractors k. Abandoning or leaving a building or structure by the occupant or owner without appropriate safety measures; l. Removing, destroying, tampering or obliterating any authorized mark, seal, sign or tag posted or required by the fire service for fire safety in any building, structure or processing equipment; and m. Use of jumpers or tampering with electrical wiring or overloading the electrical system beyond its designated capacity or such other practices that would tend to undermine the fire safety features of the electrical system. a. Inference of Negligence . . • “Where a patron of a theater or other place of public amusement is injured, and the thing that caused the injury is wholly and exclusively under the control and management of the defendant, and the . a. Contractual Obligations • Contract for a piece of work • Contractors of buildings are contractually bound to the owners of buildings or structures that they are constructing. - Liable for his negligent performance of the contractual obligation to construct the building - Liable for not only his acts but also for the works of persons employed by him Warranty against collapse of the building . Article 1723, NCC The engineer or architect who drew up the plans and specifications for a building is liable for damages if within fifteen years from the completion of the structure, the same should collapse by reason of a defect in those plans and specifications, or due to the defects in the ground. The contractor is likewise responsible for the damages if the edifice falls, within the same period, on account of defects in the construction or the use of materials of inferior quality furnished by him, or due to any violation of the terms of the contract. If the engineer or architect supervises the construction, he shall be solidarily liable with the contractor. Acceptance of the building, after completion, does not imply waiver of any of the cause of action by reason of any defect mentioned in the preceding paragraph. The action must be brought within ten years following the collapse of the building. b. Liability for Quasi-delict to the Owner . Defect – design or construction • Article 2190. The proprietor of a building or structure is responsible for the damages resulting from its total or partial collapse, if it should be due to the lack of necessary repairs. • Article 2191. Proprietors shall also be responsible for damages caused: (1) By the explosion of machinery which has not been taken care of with due diligence, and the inflammation of explosive substances which have not been kept in a safe and adequate place; (2) By excessive smoke, which may be harmful to persons or property; (3) By the falling of trees situated at or near highways or lanes, if not caused by force majeure; (4) By emanations from tubes, canals, sewers or deposits of infectious matter, constructed without precautions suitable to the place. (1908) • Article 2192. If damage referred to in the two preceding articles should be the result of any defect in the construction mentioned in article 1723, the third person suffering damages may proceed only against the engineer or architect or contractor in accordance with said article, within the period therein fixed. c. Liability to Third Persons . • Article 1727. The contractor is responsible for the work done by persons employed by him. • Article 1728. The contractor is liable for all the claims of laborers and others employed by him, and of third persons for death or physical injuries during the construction. The contractor is liable for injuries that occur after the construction of the building caused by the negligent construction of the building. d. Effect of Approval of Plans by Building Official . . Defect in the construction cannot be justified by the approval of the structural plans. 9. Towage . • One vessel is hired to bring another vessel (boat, ship, barge), to another place. In Maritime law, it refers to a service rendered to a vessel by towing for the mere purpose of expediting her voyage without reference to any circumstances of danger. • Observe due diligence of a good father of the family – The party that provides the service in a contract of towage - Can be held liable for damages resulting from the loss suffered by the obligee. - Duty to ensure that its tugboat is free of mechanical problems. 10. Stevedoring . • Refers to the act of loading or offloading cargo to and/or from a ship • Responsibility of the stevedore ends upon the loading and stowing of the cargo in the vessel. • Stevedore is NOT a common carrier observe due diligence of a good father of the family. • Mainly provides labor in loading and stowing of cargoes for its clients. 11. Common Carriers . • Bound to observe extraordinary diligence • Common carriers shall be responsible for all the loss, destruction or deterioration of the goods UNLESS the same is due to any of the following reasons: 1. Flood, storm, earthquake, lightning, or other natural disaster or calamity; 2. Act of the public enemy in war, whether intentional or civil; 3. Act or omission of the shipper or owner of the goods; 4. The character of the goods or defects in the packing or in the containers; and 5. Order or act of competent public authority. a. Presumption . Common carriers are presumed to have been at fault of have acted negligently even in those cases where there is allegedly no liability. Same presumption is present in case of death or injuries to passengers. Burden of proof rests with the carrier. b. Privity . • Duty to exercise extraordinary diligence of common carriers is usually owed to the passenger and the shipper of goods. • Case against common carrier is for the enforcement of an obligation arising from breach of contract • Extraordinary diligence owed by common carriers to third persons c. Concurrence of Causes of Actions . • The same act which breached the contract, gives rise to an action based on quasi-delict. • Presumption of negligence does not apply if the action is one based on quasi-delict. 11.01 Trains . Carrier is liable for damage or injury caused to the passenger and/or third persons when: 1. The injury was sustained because its platform was unsafe; 2. The railroad tracks were poorly maintained or were defective causing the derailment of the train; 3. The railroad company did not exercise due care in preventing damage to the properties near the tracks; 4. There was negligent in maintaining the railroad crossings; or 5. The damage resulted because the train was over speeding. a. Duties of a Person Approaching Railroad Crossing . . General rule: The rights and obligations between the public and the railroad company at a public crossing are mutual and reciprocal. . Q and A . How can then the school scape the principal and solidary liability imposed upon them under the special parental authority? None. Special authority and corporate responsibility is different because in corporate responsibility the possible liability of the school is subsidiary liability. While in special authority the liability is principal and solidary. So it means that if that’s the case, what are the defenses applicable. Except they prove that they exercise due diligence that the law mandated. What if there’s a waiver signed by the parents of the student and an accident happened and causes injury, will the school be still held liable? Yes. Such waiver will not defeat the very purpose of the law and it will not form any waiver insofar as any possible injury may be inflicted upon the person of the student if in case the school or the teachers who are assigned to that particular student are negligent. In addition, it is against public policy. When does a robbery/theft can be considered as exoneration of liability of hotelkeepers/owners? When it is the employees of the hotel are the ones who committed the theft. When it is done with use of firearms and irresistible force – robbery. Under Article 2180 it speaks of vicarious liability, now, in educational institution when we speaks of vicarious liability as provided by Art. 2180, who is the person/institution primarily liable? It is the school who is primary and solidarily liable under vicarious liability because they have the supervision on the selection of the employees that they will hire. For example there is a taxi driver, such driver nakasaga and cause injury to that person. To that effect, the victim sue the driver for a criminal offense and sue the employer of the taxi driver for civil liability. Now, the employer contends that the driver should be adjudged first that it is negligent, meaning that there should a conviction first to the driver before the victim may go against the employer as regards to the civil case. Is the contention of the employer correct? No. The sources of their liability are different. The nature of liability of the employer with respect to the civil case for torts and/or contracts is vicarious liability to the negligent act of his employee. When will the liability of the employer be subsidiarily liable with the liability of his employee? When it comes to criminal cases, after the judgment of conviction against the driver/employee and such driver/employee does not have the capacity to answer for damages, that is the case when the liability of the employer is subsidiarily liable with his employee. But when it comes to civil case, it is not needed to have a final judgment for the negligence of the employee to determine the liability of the employer. NOTE: There should be no double recovery. We should not profit from our injuries. Even if in the presence of the contract, if there’s a contract that exist between the school and the student if it’s the tort itself that breaks the contract the school may be liable under quasi-delict. The hotel-keeper cannot free himself from responsibility by posting notices to the effect that he is not liable for the articles brought by the guest. Any stipulation between the hotel-keeper and the guest whereby the responsibility of the former as set forth in articles 1998 to 2001 is suppressed or diminished shall be void. (n) DEFENSES IN NEGLIGENCE CASE . Contents of this chapter - Defenses which may be raised by the defendants in negligence cases. Defenses may either be: . 1. Partial Defenses • defenses that may either mitigate liability • include contributory negligence 2. Complete Defenses • completely bar recovery • include assumption of risk and fortuitous Plaintiff’s conduct . quite strong, and he feared that the banca, which had a high prow, might collide with the plane and damage either the wing or the pontoon thereof. It appears that at the moment the pontoons touched bottom and while the pilot was signalling to the banca, the plaintiff unfastened the straps around him and, not even waiting to put on his hat, climbed over the door to the lower wing, went down the ladder to the pontoon and walked along the pontoon toward the revolving propeller. The propeller first grazed his forehead and, as he threw up his arm, it was caught by the revolving blades thereof and so injured that it had to be amputated. ISSUE: Whether or not the respondent is Art. 2179. When the plaintiff's own negligence was the immediate and proximate cause of his injury, he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the defendants lack of due care, the plaintiff may recover damages, but the court shall mitigate the damages to be awarded. Plaintiff’s Own Negligence as the Proximate Cause . . Kim vs Philippine Aerial Taxi FACTS: The plaintiff disembarked from an airplane that landed in the waters of Guimaras Island. When the pilot observed that a banca was approaching rapidly on the right hand side of the plane, he arose, signalled and shouted to the boatman to keep his banca at a distance from the plane, inasmuch as the waves and current were liable RULING: The Court ruled that the plaintiff acted with reckless negligence in approaching the propeller while it was still in motion, and when the banca was not yet in a position to take him. The plaintiff's negligence alone was the direct cause of the accident and he alone should suffer the consequences of his act. Proximate Cause Is defined as that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. Contributory Negligence Comparative Negligence Rule - Extent of Mitigation Contributory Negligence mitigates liability - Test of Negligence . Comparative Negligence Rule . Include any rule under which the relative degree of negligence of the parties is considered in determining whether, and to what degree, either should be responsible for his negligence. Doctrine of Contributory Negligence . The negligence of the defendant, which contributes to his injury, completely bars recovery NOTE: The contributory negligence rule in common law is different from the concept of contributory negligence under the New Civil Code. Doctrine of Comparative Negligence . Does not completely bar recovery but merely mitigates the same. NOTE: The Supreme Court sustained in various cases different percentage of mitigation: -20%, 40% or 50% Test of Negligence . Test of Negligence – FORESEEABILITY when a party’s act showed lack of ordinary care and foresight that such an act could cause him harm or put his life in danger "There is contributory negligence when the party's act showed lack of ordinary care and foresight that such act could cause him harm or put his life in danger." Contributory negligence is defined as 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. How to prove? Contributory Negligence Mitigates Liability . . Contributory Negligence is defined as 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. Result: Mitigation of liability Extent of Mitigation Who will determine Mitigation? Court the extent . of Establish a causal link, although not proximate, between the negligence of the party and the succeeding injury. JOSE CANGCO v. MANILA RAILROAD CO. FACTS: Cangco was alighting from a moving train when he stepped on a sack of watermelons on the platform, causing him to fall and be drawn under the train. His right arm was crushed and subsequently amputated. He filed an action for damages against Manila Railroad, claiming negligence on the part of the company. CFI denied his claim, citing contributory negligence. But the SC held that Manila Railroad was liable, not because of a quasi-delict (culpa extra contractual), but on account of breach of the contract of carriage (culpa contractual) between the company and Cangco. RULING: The SC held that in a case of negligence which presupposes the existence of a contractual obligation, the plaintiff should only prove that the contract exists and that the defendant has breached it—it is not necessary for the plaintiff to prove negligence. As such, it is obvious that proof on the part of defendant that the negligence or omission of his servants or agents caused the breach of the contract would NOT constitute a defense to the action. The facts averred show a contract of carriage. It is not necessary for Cangco to specify in his pleadings whether the breach of the contract is due to willful fault or to negligence on the part of the Manila Railroad or of its employees. Proof of the contract and of its nonperformance is sufficient prima facie to warrant a recovery. Manila Railroad is liable due to its breach of its contract of carriage with Cangco, not by reason of vicarious liability due to its employees’ negligence. Thus, it cannot excuse itself from liability by showing that it exercised due diligence in the selection and supervision of its employees. Imputed Contributory Negligence . Some points to consider: NEGLIGENCE IS IMPUTED if the actor is different from the person who is being made liable. This rule is applicable where the negligence was on the part of the person for whom the plaintiff is responsible, and especially, by negligence of an associate in the transaction where he was injured. RESULT: the defendant will be subject to mitigated liability even if the plaintiff was not himself personally negligent but because the negligence of another is imputed to the plaintiff. MASTER – SERVANT RELATIONSHIP Imputed negligence of employer in a master-servant relationship is instructive. Master may be held for his servant's wrongful act. The law imputes to the master the act of the servant, and if that act is negligent or wrongful and proximately results in injury to a third person, the negligence or wrongful conduct is the negligence or wrongful conduct of the master, for which he is liable. Yamada vs The Manila Railroad Co. FACTS: Butaro Yamada et al hired a taxi owned and operated by Bachrach Garage & Taxicab Co. so that they may travel to Cavite Viejo The journey to Cavite Viejo was made without incident but, on the return trip, while crossing the tracts of defendant railroad company in the barrio of San Juan, Cavite Viejo, the automobile was struck by a train and the plaintiffs were injured. The defendant railroad company argued that the plaintiffs cannot recover for the reason that the negligence of the driver of the automobile, if any, was imputable to them, they having permitted the driver to approach and pass over the railroad crossing without the use of ordinary care and diligence to determine the proximity of a train, and having made no effort to caution or instruct him or compel him to take reasonable care in making the crossing. ISSUE: Who are liable for damages in the instant case. RULING: It was established that the driver was negligent. Manila Railroad and its employees are not negligent as showed by the evidence which were uncontroverted hence no liability can be had against them. Bachrach Garage however is liable for damages as an employer. Bachrach Garage did not perform its full duty when it furnished a safe and proper car and a driver with a long and satisfactory record. It failed to comply with one of the essential requirements of the law of negligence in this jurisdiction, that of supervision and instruction, including the promulgation of proper rules and regulations and the formulation and publication of proper instructions for their guidance in cases where such rules and regulations and instructions are necessary. A. When there is no Imputed Contributory Negligence? . . The negligence of a driver, who, in turn, is guilty of contributory negligence, cannot be imputed to a passenger who has no control over him in the management of the vehicle and with whom he sustains no relation of master and servant. This rule is applied more strictly when, hired cars or those engaged in public service, are involved." B. Imputed Negligence to Plaintiff as Proximate Cause . e If the master is injured by the negligence of a third person and by the concurring negligence of his own servant or agent, the latter’s negligence is imputed to his superior and will defeat the superior’s claim against the third person if the negligence is the proximate cause. C. Violation of Statute or Victim’s Agent . Negligence per se EXCEPT if provided by law otherwise Depend on: • Merely contributory negligence • Proximate cause • Neither contributory nor proximate cause. Neither Contributory Negligence Nor Proximate Cause . . The absence of proper lights on a bicycle at night, as required by statute or ordinance, may constitute negligence barring or diminishing recovery if the bicyclist is struck by a motorist as long as the absence of such lights was a proximate cause of the collision; However, the absence of such lights will not preclude or diminish recovery if the scene of the accident was well illuminated by streetlights, if substitute lights were present which clearly rendered the bicyclist visible, if the motorist saw the bicycle in spite of the absence of lights thereon, or if the motorist would have been unable to see the bicycle even if it had been equipped with lights. Assumption of Risk: 1. Plaintiff must know that the risk is present. 2. He must further understand its nature. 3. His choice to incur it is free and voluntary. Assumption of Risk the standard to be applied is subjective about voluntariness (knowingly and voluntarily assuming a risk or if one had a choice) Primary Assumption of Risk Exceptions: 1. If emergency is found to exist. 2. If the life/property of another is in peril or seeks to rescue his endangered property. Assumption of Risk . “Means that one who voluntarily exposes himself to an obvious, known and appreciated danger assumes the risk of injury that may result therefrom. It rests on the fact that the person injured has consented to relieve the defendant of an obligation of conduct toward him and to take his chance of injury from a known risk, and whether the former has exercised proper caution or not is immaterial.” In other words, it is based on voluntary consent, express or implied, to accept danger of a known and appreciated risk; it may sometimes include acceptance of risk arising from the defendant's negligence, but one does not ordinarily assume risk of any negligence which he does not know and appreciate. Doctrine of Contributory Negligence . the standard to be applied is objective deals with reasonableness of the conduct of the plaintiff . - The law assumes that there are risks that are deemed assumed. Hence, the question to be resolved no longer starts with the determination if the risk was voluntarily assumed but goes directly into the question of whether the risk that the plaintiff took is an inherent part of the activity. Example: Where a person voluntarily participates in a lawful game or contest, he is deemed to have voluntarily assumed the ordinary risks of such game or contest so as to preclude recovery from the promoter or operator of the game or contest for injury or death resulting therefrom. Proprietors of amusements or of places where sports and games are played are not insurers of safety of the public nor of their patrons. Kinds: 1. Express waiver of right to recover Express Consent Perspective i. Before negligent act – invalid ii. After negligent act – valid iii. Future fraud – invalid iv. Exemplary damages – invalid 2. Implied assumption 3. Dangerous conditions 4. Incident of contractual relations - Defense of employer in tort case filed by employee 5. Dangerous activities - Awareness of risk assessed against background of skill and expertise 6. Defendant’s negligence - If plaintiff voluntarily decided to encounter it. 1. Express Consent Perspective . GENERAL RULE: There is assumption of risk if the plaintiff, in advance, has expressly waived his right to recover damages for the negligent act of the defendant. He has given his express consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant has to do or leave undone. Example: If the plaintiff received a warning that it is still dangerous to take the vehicle from the repair shop because the repairs are still untested, there would be an express assumption of risk if he nevertheless took the vehicle from the shop with the express waiver of liability in favor of the proprietor. EXCEPTION: Rights can be waived unless the waiver is contrary to law, public order, public policy, morals or good customs, or prejudicial to a third person with a right recognized by law. 1. Future fraud - waiver of the right to recover damages that will arise through future fraud is void under Article 1171. 2. Waiver and Quit Claim - the victim did not understand the document that she signed. She also did not understand the nature and extent of her waiver as the content of the document was not explained to her. The waiver is therefore void because it is contrary to public policy. 3. Effect of Free and Harmless Clause parties to a contract can stipulate that one party holds the other free and harmless from any claim of third persons. However, injured third persons are not bound by the contractual stipulation and can still sue both contractual parties when both of them were negligent. 4. Minority - written waiver by a minor was not an effective form of express or implied consent. Minors does not comprehend the risk involved in a known situation because of his youth, or lack of information or experience and thus will not be taken to consent to assume the risk. Implied Assumptions . 1. Dangerous Conditions & Activities 2. Contractual Relations 3. Employment 4. Joining Sports Events 5. Defendant’s Negligence 1. Dangerous Conditions & Activities 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 conditions. 2. Contractual Relations - entering into a contractual relationship freely and voluntarily where the negligence of the defendant is obvious, the plaintiff may be found to accept and consent to it, and relieve the defendant of the duty. 3. Employment - based on the implied consent of the employee to accept or continue in the employment after becoming aware of the risk which resulted in his injury. 4. Joining Sports Events - where a person voluntarily participates in a lawful game or contest, he assumes the ordinary risks of such game or contest so as to preclude recovery from the promoter or operator of the game or contest for injury or death resulting therefrom. Proprietors of amusements or of places where sports and games are played are not insurers of safety of the public nor of their patrons. Example: professional athletes 5. Defendant’s Negligence - when the plaintiff is aware of the risk created by the defendant's negligence, yet he voluntarily decided to proceed to encounter it. Fortuitous Events . Under Article 1174 of the New Civil Code, a person is not liable if the cause of damage was fortuitous; an event which could not be foreseen, or which though foreseen, was inevitable Fortuitous event may either be: • Act of God • Natural Occurrences - floods or typhoons • Act of Man - riots, strikes or wars Elements of Fortuitous Events 2. Event must be impossible to foresee, if not, impossible to avoid; 3. Occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a normal manner; 4. Obligor free from any aggravation of the injury resulting to the creditor. Fortuitous Event . Effect of Negligence: The negligence of the defendant which concurred with the fortuitous event or which resulted in the aggravation of the injury of the plaintiff will make him liable even if there was a fortuitous event. When an act of God combines or concurs with the negligence of the defendant to produce an injury, the defendant is liable if the injury would not have resulted but for his own negligent conduct or omission. The whole occurrence is humanized and removed from the rules applicable to acts of God Mitigation Due to Fortuitous Event: Even if the defendant is still liable because of its concurring negligence, courts may equitably mitigate the damages if the loss, even in part, would have resulted in any event because of the fortuitous event. . Effect of Death of Defendant 1. Cause of unforeseen and unexpected occurrence or failure of the debtor to comply with his obligation must be independent of human will; . NOTE: DEATH NOT A DEFENSE! Death of the defendant will not extinguish the obligation based on quasi-delict. In fact, an action survives even if the defendant dies during the pendency of the case if the said case is an action to recover for an injury to persons or property by reason of tort committed by the deceased. The case will continue through the legal representative who will substitute the deceased Rules of Court Provisions: . Section 16 of Rule 3 of the Rules of Civil Procedure provides that whenever a party to a pending action dies, and the claim is not thereby extinguished, it shall be the duty of his counsel to inform the court within 30 days after such death of the fact thereof, and to give the name and address of his legal representative or representatives. Failure of counsel to comply with this duty shall be a ground for disciplinary action. Section 16 of Rule 3 further provides that the court shall order the legal representative or representatives to appear and be substituted within a period of 30 days from notice. If no legal representative is named by the counsel for the deceased party or if the one so named shall fail to appear within the specified period, the court may order the opposing party, within a specified time, to procure the appointment of an executor or administrator for the estate of the deceased and the latter shall immediately appear for and on behalf of the deceased. The court charges in procuring such appointment, if defrayed by the opposing party, may be recovered as costs. Prescription When period commences? . The prescriptive period for quasi-delict is four (4) years counted from the date of the accident. Right of Action accrues when there exists a cause of action, which consists of three elements: a) a right in favor of the plaintiff by whatever means and under whatever law it arises or is created; b) an obligation on the part of the defendant to respect such right; and c) an act or omission on the part of such defendant violative of the right of the plaintiff. The prescriptive period must be counted when the last element of commission of an act or omission violative of the right of the plaintiff occurs, which is the time when the cause of action arises. Doctrine Of Relations Or Relations Back Doctrine . . The doctrine should be applied where the injury was discovered long after the accident. The offended party should not be prejudiced in such case and the prescriptive period should commence to run only upon discovery of the injury. It is not unusual that the effect of the negligent act is latent and may become apparent only after quite some time. Thus, if the injury becomes apparent only after several years, the prescriptive period should commence to run only after discovery. Example: A doctor negligently transfused blood to a patient that was contaminated with HIV. If the effect became apparent only after five years, the four-year prescriptive period should commence only when it was discovered after five years and not when the negligent act was committed. Effect of Prescription on Other Sources of Obligation . . The prescription of the action ex quasi delicto or quasi-delict does not operate as a bar to an action to enforce the civil liability arising from crime. Involuntariness . 1. OTHER SOURCES OF OBLIGATION There is no specific provision dealing with the effect of involuntariness in quasidelictual actions. LAW ON CONTRACTS - force and intimidation result in vitiated consent and the resulting contract is considered voidable. REVISED PENAL CODE - the person acting because of the force or intimidation employed upon him is subsidiarily liable to the offended party. In such a case, however, the liability is not based on negligence but may be classified as strict liability. 2. COMPLETE DEFENSE Involuntariness is a complete defense in quasi-delict cases and the defendant is therefore not liable if force was exerted on him. (self-preservation is the first law of nature.) Example: Defendant was forced to drive his vehicle by armed men. He was, at pain of death, forced to drive at a very fast clip because the armed men were escaping from policemen. It is believed that the defendant cannot be held liable, if a bystander is hit as a consequence. State of Most Significant Relationship Rule . To determine the State which has the most significant relationship, the following contacts are to be taken into account: (a) the place where the injury occurred; (b) the place where the conduct causing the injury occurred; (c) the domicile, residence, nationality, place of incorporation and place of business of the parties; and (d) the place where the relationship, if any, between the parties is centered Saudi Arabian Airlines v. Court of Appeals FACTS: Saudi Arabian Airlines (SAUDIA) hired Milagros Morada as a Flight Attendant for its airlines based in Jeddah, Saudi Arabia. While on a lay-over in Jakarta, Morada went to a disco with fellow crew members Thamer & Allah, both Saudi nationals. Because it was almost morning when they returned to their hotels, they agreed to have breakfast together at the room of Thamer. In which Allah left on some pretext. Thamer attempted to rape Morada but she was rescued by hotel personnel when they heard her cries for help. Indonesian police came and arrested Thamer and Allah, the latter as an accomplice. Through the intercession of Saudi Arabian government, Thamer and Allah were deported and, eventually, again put in service by SAUDIA. But Morada was transferred to Manila. Morada filed a complaint for damages against SAUDIA, with the RTC of QC. SAUDIA filed Omnibus Motion to Dismiss which raised the ground that the court has no jurisdiction, among others which was denied ISSUE: Whether RTC of QC has jurisdiction to hear and try the case RULING: YES. The Situs is the Philippines where the tort is committed (lex loci delicti commissi), it is in the Philippines where the defendant allegedly deceived the plaintiff, a citizen residing and working here and the fact that certain acts or parts of the injury occurred in another country is of no moment, for what is important is the place where the over-all harm or the totality of the injury to the person, reputation, social standing and human rights of the plaintiff had lodged. However there is the widespread criticism of the traditional rule of lex loci delicti commissi. Apply State of the Most Significant Relationship Rule: 1) The place where the injury occurred 2) The place where the conduct causing the injury occurred 3) The domicile, residence, nationality, place of incorporation and place of business of the parties; 4 The place where the relationship, if any, between the parties is centered The Philippines is the situs of the tort complained of and the place "having the most interest in the problem", the Philippine Law on tort liability should have paramount application to and control in the resolution of the legal issues arising therein in view of the foregoing. 1) The respondent is a resident Filipina National 2) The petitioner is a resident foreign corporation engage here in the business of international air carriage 3) The relationship was centered in the Philippines 4) The Philippines has the most significant contact with the matter in this dispute 5) The Philippines is the situs of the tort complained of 6) The Philippines has the most interest in the problem 7) The RTC has jurisdiction over the parties and the subject matter of the complaint. . Q and A . Regarding to mitigating circumstances, e.g. involving mitigating circumstances, what would be mitigated? Is it the damage or the amount of damage? The mitigated. award damages will be NOTE: There are instances where there are times that the victim are also at fault, it is not because someone died, it is already your liability. We cannot profit from our injuries. CAUSATION . I. Proximate Cause . - is that cause which produces the injury in natural, continuous sequence, unbroken by any efficient intervening cause. In short, Proximate cause is the dominant, moving, or producing cause. Under Torts law, may kadikit na element ng foreseeability, which as discussed prior, inquires whether a person could or should reasonably have foreseen the harms that resulted from their actions. -That cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, without which the result would not have occurred. - Proximate cause has been defined in this case as ‘any cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the result complained of and without which would not have occurred and from which it ought to have been foreseen or reasonably anticipated by a person of ordinary case that the injury complained of or some similar injury, would result therefrom as a natural and probable consequence. (Pilipinas Bank v. Court of Appeals [G.R. No. 105410 July 25, 1994]) Pilipinas Bank v. Court of Appeals G.R. No. 105410, July 25, 1994 FACTS: Florencio Reyes issued postdated checks to Winner Industrial Corporation (P20,927.00) and Vincent Tui (P11,419.50) as payments for the purchased shoe materials and rubber shoes. To cover the face value of the checks, Reyes requested PCIB Money Shop’s manager to effect the withdrawal of 32k from his savings account and have it deposited with his current account with Pilipinas Bank. Roberto Santos was requested to make the deposit. In depositing in the name of Reyes, Santos inquired from the teller Reyes’ current account number to complete the deposit slip he was accomplishing. He was informed that it was “815” so that was the number he placed on the slip. Noting that the account number coincided with the name “Florencio,” Efren Alagasi (Pilipinas Bank Current Account Bookkeeper) thought it was for Florencio Amador, so he posted the deposit in the account of Amador. The check in favor of Winner was presented for payment. Since Reyes’ ledger indicated that his account only had 4k~ balance, the check was dishonored. This check was redeposited 4 days later but it was dishonored again. This also happened with the check issued in Tui’s favor. Tui returned the check to Reyes and demanded a cash payment of its face value. This prompted Reyes to confront Pilipinas Bank, and only then did the bank noticed the error. The 32,000 posted in Amador’s account was transferred to Reyes’ account upon being cleared by the former that he did not effect a deposit of 32,000. The bank then honored the checks, but private respondent Reyes proceeded to file a complaint for moral damages. The trial court ordered herein petitioner to pay the damages, as upheld by the Court of Appeals with modification. ISSUE: Whether the Court of Appeals erred in not applying Art. 2176 of NCC that it was Reyes’ own representative who committed the mistake in writing down the account number. HELD: No. The Court held that the cause-infact is the negligence of petitioner's employee in erroneously posting the cash deposit of private respondent in the name of another depositor who had a similar first name. The bank employee, deemed to have failed to exercise the degree of care required in the performance of his duties. No. The Court held that the cause-infact is the negligence of petitioner's employee in erroneously posting the cash deposit of private respondent in the name of another depositor who had a similar first name. The bank employee, deemed to have failed to exercise the degree of care required in the performance of his duties. Proximate cause has been defined in this case as ‘any cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the result complained of and without which would not have occurred and from which it ought to have been foreseen or reasonably anticipated by a person of ordinary case that the injury complained of or some similar injury, would result therefrom as a natural and probable consequence. In the case at bench, the proximate cause of the injury is the negligence of petitioner's employee in erroneously posting the cash deposit of private respondent in the name of another depositor who had a similar first name. Proximate Cause as Distinguished from . Remote Cause it is defined as ‘that cause which some independent force merely took advantage of to accomplish something not the natural effect thereof. In short, hindi siya ang proximate cause and will never be considered as is dahil auxiliary event lang siya na nangyari independent of proximate cause. That said, the remote cause doesn’t necessarily transpire after the proximate cause, or that causes prior to the occurrence of damages is presumed to be the proximate cause. That cause which some independent force merely took advantage of to accomplish something not the natural effect thereof. Nearest Cause That cause which is the last link in the chain of events; the nearest in point of time or relation. Proximate cause is not necessarily the nearest cause but that which is the procuring efficient and predominant cause. Concurrent Causes Where several causes producing an injury are concurrent and each is an efficient cause without which the injury would not have happened, the injury may be attributed to all or any of the causes and recovery may be had against any or all of the responsible persons although under the circumstances of the case, it may appear that one of them was more culpable, and that the duty owed by them to the injured person was not the same. No actor's negligence ceases to be a proximate cause merely because it does not exceed the negligence of other actors. Each wrongdoer is responsible for the entire result and is liable as though his acts were the sole cause of the injury. The proximate cause is not necessarily the sole cause of the accident. The defendant is still liable in case there is concurrent causes brought about by acts or omissions of third persons. The actor is not protected from liability even if the active and substantially simultaneous operation of the effects of a third person’s innocent, tortious or criminal act is also a substantial factor in bringing about the harm so long as the actor’s negligent conduct actively and continuously operate to bring about harm to another. In the same vein, the primary cause remains the proximate cause even if there is an intervening cause which merely cooperated with the primary cause and which did not break the chain of causation. II. Tests of Proximate Cause . CAUSE–IN–FACT In determining the proximate cause of the injury, it is first necessary to determine if defendant’s negligence was the cause-infact of the damage to the plaintiff. If defendant’s negligence was not a cause-infact, the inquiry stops; but if it is a cause-infact, the inquiry shifts to the question of limit of liability of the defendant. In other words, the question of proximate cause does not only involve cause and effect analysis. It also involves policy considerations that limit the liability of the defendants in negligence cases. 1. ‘But For’ Test The ‘But For’ test requires a plaintiff to establish that the act complained of probably caused the subsequent disability. The test applied to determine whether negligent conduct was the efficient, or proximate cause of the injury or loss suffered by the claimant is whether such conduct is a cause without which the injury would not have taken place, or is the efficient cause which set in motion the chain of circumstances leading to the injury. 2. Substantial Factor Test It is the rule that if the actor's conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable. NOTE: If the defendant’s conduct was already determined to be the cause in fact of the plaintiff’s damage under the but-for test, it is necessarily the cause-in-fact of the damage under the substantial factor test. In other words, if the accident would not have occurred had there been no negligence of the part of the defendant, the defendant’s conduct is a substantial factor in bringing about the damage or injury. NECESSARY ELEMENT OF A SUFFICIENT SET (NESS) TEST This test is especially effective in solving problems regarding concurrent causes. In a sense, this is a modified “But-For test”. Under this test, the negligent act of omission is a cause-in-fact of the damage if it is a necessary element of a sufficient set. The candidate condition may still be termed as a cause where it is shown to be a necessary element in just one of several co-present causal set each independently sufficient for the effect. 1. Duplicatives Causation When two or more sets operate simultaneously to produce the effect; the effect is overdetermined. 2. Pre-emptive Causation When, though coming about first in time, one causal set trumps another potential set lurking in the background; the causal potency of the latter is frustrated. POLICY TEST The law, as a matter of policy, may limit 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. Such limit of liability is determined by applying what are known as policy tests. The policy tests which are being used to determine the extent of the defendant’s liability for negligence includes the following: 1. Foreseeability test 2. Natural and probable consequence test 3. Natural and ordinary or direct consequences test 4. Hindsight test; 5. Orbit of risk test 6. The substantial factor test III. Efficient Intervening Cause . Efficient Intervening Causes are causes that destroys the causal connection between the negligent act and injury and thereby negatives liability. An intervening cause, to be considered efficient, must be one not produced by a wrongful act or omission, but independent of it, and adequate to bring the injurious results. It must break the continuity of causal connection between the original negligent act or omission and the injury so that the former cannot be said to have been the efficient cause of the latter. There is no efficient intervening cause if the force created by the negligent act or omission have either: 1. Remained active itself; 2. Created another force which remained active until it directly caused the result, or; 3. Created a new active risk of being acted upon by the active force that caused the result. Phoenix Construction, Inc., et. al. v. Intermediate Appellate Court, et. al. G.R. No. L-65295, March 10, 1987 FACTS: At about 1:30 a.m. on November 15, 1975, private respondent Leonardo Dionisio was on his way home from cocktails and dinner meeting with his boss. He was proceeding down General Lacuna Street when he saw a Ford dump truck parked askew, partly blocking the way of oncoming traffic, with no lights or early warning reflector devices. The truck was driven earlier by Armando Carbonel, a regular driver of the petitioner company. Dionisio tried to swerve his car to the left, but it was too late. He suffered some physical injuries and nervous breakdown. Dionisio filed an action for damages against Carbonel and Phoenix Insurance. Petitioners countered the claim by imputing the accident to respondent’s own negligence in driving at high speed without curfew pass and headlights, and while intoxicated. The trial court and the Court of Appeals ruled in favor of private respondent. At about 1:30 a.m. on November 15, 1975, private respondent Leonardo Dionisio was on his way home from cocktails and dinner meeting with his boss. He was proceeding down General Lacuna Street when he saw a Ford dump truck parked askew, partly blocking the way of oncoming traffic, with no lights or early warning reflector devices. The truck was driven earlier by Armando Carbonel, a regular driver of the petitioner company. Dionisio tried to swerve his car to the left, but it was too late. He suffered some physical injuries and nervous breakdown. Dionisio filed an action for damages against Carbonel and Phoenix Insurance. Petitioners countered the claim by imputing the accident to respondent’s own negligence in driving at high speed without curfew pass and headlights, and while intoxicated. The trial court and the Court of Appeals ruled in favor of private respondent. ISSUE: Whether the collision was brought by respondent’s own negligence. consequence of the truck driver's negligence. The defendant cannot be relieved from liability by the fact that the risk or a substantial and important part of the risk, to which the defendant has subjected the plaintiff has indeed come to pass. Foreseeable intervening forces are within the scope original risk, and hence of the defendant's negligence. The courts are quite generally agreed that intervening causes which fall fairly in this category will not supersede the defendant's responsibility. Thus, a defendant who blocks the sidewalk and forces the plaintiff to walk in a street where the plaintiff will be exposed to the risks of heavy traffic becomes liable when the plaintiff is run down by a car, even though the car is negligently driven; and one who parks an automobile on the highway without lights at night is not relieved of responsibility when another negligently drives into it. The Court holds that private respondent Dionisio's negligence was "only contributory," that the "immediate and proximate cause" of the injury remained the truck driver's "lack of due care" and that consequently respondent Dionisio may recover damages though such damages are subject to mitigation by the courts. Cause and Condition . HELD: No. The Court held that Dionisio is guilty of contributory negligent but the legal and proximate cause of the collision was brought about by the way the truck was parked. The legal and proximate cause of the accident and of Dionisio's injuries was the wrongful or negligent manner in which the dump truck was parked in other words, the negligence of petitioner Carbonel. The collision of Dionisio's car with the dump truck was a natural and foreseeable Courts have sought to distinguish between the active “cause” of the harm and the existing “conditions” upon which that cause operated. If the defendant has created only a passive static condition which made the damage possible, the defendant is said not to be liable. But so far as the fact of causation is concerned, in the sense of necessary antecedents which have played an important part in producing the result, it is quite impossible to distinguish between active forces and passive situations, particularly since, as is invariably the case, the latter are the result of other active forces which have gone before (Phoenix Construction vs. Intermediate Appellate Court). Types of Dangerous Conditions . First One (Those that inherently dangerous) Includes things which are inherently dangerous because they retain their potential energy in full, even if they are stored or handled with utmost care. The smallest application of force, or small change in conditions can release or otherwise set in motion large forces that can cause harm in the narrow sense of that term Second One (Those where a person places a thing which is not dangerous in itself, in a dangerous position) Includes cases where objects are placed in such a way that other people’s right of way is not recognized. Third One (Those involving products and other things which are dangerous because they are defective) Includes defective construction of a building. NOTE: A cause is not an intervening cause if it is already in operation at the time the negligent act is committed Foreseeable Intervening Causes ordinary human experience is reasonably to be anticipated, or one which the defendant has reason to anticipate under the particular circumstances, the defendant may be negligent, among other reasons, because of failure to guard against it; or the defendant may be negligent only for that reason. . A Foreseeable Intervening Causes exists if the intervening cause is one which in Medical Treatment As Intervening Cause . . Under this principle, a tortfeasor is liable for the consequence of negligence, mistake, or lack of skill of a physician or surgeon whose treatment aggravated the original injury. The same is considered a normal and foreseeable risk. The rule is based on the reasoning that the additional harm is either: (1) a part of the original injury, (2) the natural and probable consequences of the tortfeasor’s original negligence or (3) the normal incidence of medical care necessitated by the tortfeasor’s original negligence. Filomeno Urbano v. Intermediate Appellate Court G.R. No. 72964, January 7, 1988 FACTS: Marcelino Javier opened the irrigation of a canal by means of cutting grass which caused the flooding of the storage area of the petitioner. Petitioner got angry and demanded Javier to pay for the soaked palay. Javier refused and a quarrel between them ensued. Urbano unsheathed his bolo and hacked Javier hitting him on the right hand and left leg. Javier went to the hospital for the treatment of the wounds. Two weeks after, Javier returned to his farm and tended to his tobacco plants. Then, on a fateful day of November 14, Javier was rushed to the hospital. Doctors findings showed that he was suffering from tetanus infection. The next day, Javier died. RTC and CA found the petitioner guilty beyond reasonable doubt of homicide. Petitioner raised the case to the SC arguing that the cause of the death of Javier was due to his own negligence. ISSUE: Whether Urbano’s action was the proximate cause of the death of Javier. HELD: No. Pursuant to this provision “an accused is criminally responsible for acts committed by him in violation of law and for all the natural and logical consequences resulting therefrom. The rule is that the death of the victim must be the direct, natural, and logical consequence of the wounds inflicted upon him by the accused. The petitioner reiterates his position that the proximate cause of the death of Marcelo Javier was due to his own negligence, that Dr. Mario Meneses found no tetanus in the injury, and that Javier got infected with tetanus when after two weeks he returned to his farm and tended his tobacco plants with his bare hands exposing the wound to harmful elements like tetanus germs. Consequently, Javier’s wound could have been infected with tetanus after the hacking incident. Considering the circumstance surrounding Javier’s death, his wound could have been infected by tetanus 2, 3 or a few but not 20 to 22 days before he died. The medical findings, however, lead the Court to a distinct possibility that the infection of the wound by tetanus was an efficient intervening cause later or between the time Javier was wounded to the time of his death. The infection was, therefore, distinct and foreign to the crime. Proximate legal cause is that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as an ordinarily prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom. Unforeseen and Unexpected Act or Cause . An unforeseen and unexpected act of a third person may not be considered efficient intervening cause if it is duplicative in nature or if it merely aggravated the injury that resulted because of a prior cause. The same conclusion can be reached if the third person’s act is part of the causal set, together with defendant’s negligence, that operated to cause the injury. IV. Contributory Negligence . It is the 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 Plaintiff’s Negligence is the Cause In this situation defendant’s act or omission is neither necessary nor sufficient to cause damage or injury. This situation may include the cases when only the plaintiff was negligent while the defendant is not negligent or defendant’s negligence is not part of the causal set or the causal chain. Another situation included in the first group are cases when plaintiff’s negligence is preemptive in nature. the doctrine of avoidable consequences, as the case may be. Compound Causes There might be compound causes and plaintiff’s negligence may have duplicative effect, that is, it is sufficient to bring about the effect but his negligence occurs simultaneously with that of the defendant. The latter’s negligence is equally sufficient but not necessary for the effect because the damage would still have resulted due to the negligence of the plaintiff. It is submitted that in these cases, no recovery can be had. The plaintiff’s negligence is not merely contributory because it is a concurring proximate cause. Under this doctrine, where both parties are negligent but the negligent act of one is appreciably later in point of time than that of the other, or where it is impossible to determine whose fault or negligence brought about the occurrence of the incident, the one who had the last clear opportunity to avoid the impending harm but failed to do so, is chargeable with the consequences arising therefrom. The following are the requisites: Part of the Same Causal Set Neither plaintiff’s negligence nor defendant’s negligence alone is sufficient to cause the injury; the effect would result only if both are present together with normal background conditions. Negligence of the plaintiff cooperated with the negligence of the defendant in order to bring about the injury; determination of proximate cause is only a matter of degree of participation. Defendant’s Negligence is the Only Cause The defendant’s negligence may be sufficient and necessary to cause the damage and plaintiff’s act or omission is neither necessary nor sufficient. Damage to the plaintiff was solely the result of the defendant’s negligence. However, the plaintiff’s negligence may have increased or aggravated the resulting damage or injury. In this particular case, the liability of the defendant should also be mitigated under the contributory negligence rule or under V. Doctrine of Last Clear Chance . 1. Plaintiff was in a position of danger by his own negligence; 2. Defendant knew of such position of the plaintiff; 3. Defendant had the last clear chance to avoid the accident by exercise of ordinary care but failed to exercise such last clear chance, and; 4. Accident occurred as proximate cause of such failure. ALTERNATIVE VIEWS Prevailing Doctrine Even if the plaintiff was guilty of antecedent negligence, the defendant is still liable because he had the last clear chance of avoiding injury. 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. Minority View The historical function of the doctrine was to mitigate the harshness of the common law rule of contributory negligence which prevented any recovery at all by the plaintiff who was also negligent even if his negligence was relatively minor as compared with the wrongful act or omission of the defendant. Third View There can be no conflict between the doctrine of last clear chance and doctrine of comparative negligence if the former is viewed as a rule or phrase of proximate cause; however, the doctrine of last clear chance is no longer applicable if the force created by the plaintiff’s negligence continues until the happening of the injurious event. Cases when the Doctrine was Applied . The doctrine is being applied for the purpose of determining the proximate cause of the accident. The Supreme Court do not relate the doctrine of the last clear chance to the rule on contributory negligence or comparative negligence. In fact, in most cases, the Supreme Court used the doctrine in determining if the negligence of the defendant was the proximate cause and that of the plaintiff as contributory. crossing the bridge, the cargo truck and the jeep collided as a consequence of which Engineer Calibo died while Roranes and Patos sustained physical injuries. Zacarias was unhurt. As a result of the impact, the left side of the truck was slightly damaged while the left side of the jeep, was extensively damaged. After the impact, the jeep fell and rested on its right side on the asphalted road a few meters to the rear of the truck, while the truck stopped on its wheels on the road. A case for damages was filed by the surviving spouse and children of the late Engineer Calibo against the driver and owners of the cargo truck with the CFI of Bohol. Accordingly, the Court dismissed the complaint “for insufficiency of evidence” The Court of Appeals saw things differently. It rendered judgment 9 on the plaintiffs’ appeal, reversing the decision of the Trial Court. It found Zacarias to be negligent and his negligence “gave rise to the presumption of negligence on the part of his employer, and their liability is both primary and solidary.” It therefore ordered “the defendants jointly and solidarily to indemnify the plaintiffs. The defendants have appealed to this Court on certiorari and pray for a reversal of the judgment of the IAC which, it is claimed, ignored or ran counter to the established facts. ISSUE: Glan People’s Lumber And Hardware, Et. Al. V. IAC, Et. Al. G.R. No. 70493, May 18, 1989 FACTS: Engineer Calibo, Roranes, and Patos were on the jeep, with Calibo at the wheel, as it approached a bridge going towards the direction of Davao City. At about that time, the cargo truck, Zacarias coming from the opposite direction of Davao City had just crossed said bridge. At about 59 yards after Whether the doctrine of last clear chance is applicable in this case. HELD: Yes. Even, however, ignoring these telltale indicia of negligence on the part of Calibo, and assuming some antecedent negligence on the part of Zacarias in failing to keep within his designated lane, incorrectly demarcated as it was, the physical facts would still absolve the latter of any actionable responsibility for the accident under the rule of the last clear chance. Both drivers, as the Appellate Court found, had had a full view of each other’s vehicle from a distance of 150 meters. The truck had been brought to a stop while the jeep was still thirty meters away. From these facts the logical conclusion emerges that the driver of the jeep had what judicial doctrine has appropriately called the last clear chance to avoid the accident, while still at that distance of thirty meters from the truck, by stopping in his turn or swerving his jeep away from the truck, either of which he had sufficient time to do while running at a speed of only thirty kilometers per hour. In those circumstances, his duty was to seize that opportunity of avoidance, not merely rely on a supposed right to expect the truck to swerve and leave him a clear path. Cases when the Doctrine in Inapplicable . The instances that the Doctrine of Last Clear Chance is inapplicable? Those are as follows: 1. If the plaintiff was not negligent. 2. The party charged is required to act instantaneously, and if the injury cannot be avoided by the application of all the means at hand after the peril is or should have been discovered. 3. If defendant’s negligence is a concurrent cause and which was still in operation up to the time the injury was inflicted. 4. Where the plaintiff, a passenger, filed an action against a carrier based on contract. 5. If the actor, though negligent, was not aware of the danger or risk brought about by the prior fraud or negligent act. Bustamante v. Court of Appeals G.R. No. 89880, February 6, 1991 FACTS: At about 6:30 in the morning of April 20, 1983, a collision occurred between a gravel and sand truck, with Plate No. DAP 717, and a Mazda passenger bus with Motor No. Y2231 and Plate No. DVT 259 along the national road at Calibuyo, Tanza, Cavite. The front left side portion (barandilla) of the body of the truck sideswiped the left side wall of the passenger bus, ripping off the said wall from the driver’s seat to the last rear seat. Due to the impact, several passengers of the bus were thrown out and died as a result of the injuries they sustained. The trial court held that the negligent acts of both drivers contributed to or combined with each other in directly causing the accident which led to the death of the passengers. It could not be determined from the evidence that it was only the negligent act of one of them which was the proximate cause of the collision. In view of this, the liability of the two drivers for their negligence must be solidary. The Court of Appeals ruled on the contrary, it held that the bus driver had the last clear chance to avoid the collision and his reckless negligence in proceeding to overtake the hand tractor was the proximate cause of the collision. ISSUE: Whether the Doctrine of Last Clear Chance applies in the case at bar. HELD: No. The principle of “last clear chance” applies “in a suit between the owners and drivers of colliding vehicles. It does not arise where a passenger demands responsibility from the carrier to enforce its contractual obligations. For it would be inequitable to exempt the negligent driver of the jeepney and its owners on the ground that the other driver was likewise guilty of negligence.” Furthermore, as between defendants: The doctrine cannot be extended into the field of joint tortfeasors as a test of whether only one of them should be held liable to the injured person by reason of his discovery of the latter’s peril, and it cannot be invoked as between defendants concurrently negligent. As against third persons, a negligent actor cannot defend by pleading that another had negligently failed to take action which could have avoided the injury. NOTE: In applying the test of proximate cause, it is like a stage, it should not be applied separately and you cannot choose what test to apply. The first thing to look for is the cause-in-fact test, it was the test that will determine if there’s a proximate cause. The first question is “was the defendant the cause in fact” or “mag o-occur ba yung injury or damage dahil sa ginawa ni defendant”, if NO, the defendant has no liability. If YES, the next question is what is policy is applicable. Because after the determination that defendant’s action is the proximate cause of the injury, the next thing to determine is the extent of liability of the defendant, in such case, the policy test will apply. In substantial factor test, we only used this kind of test when there’s a concurring causes. It is use to determine among which causes is the proximate cause of that damage or injury to determine who is the one liable. HUMAN RELATIONS: INTENTIONAL TORTS . General Concepts . It is so broad that it covers cases that are considered contrary to morals under Article 21 CATCH ALL PROVISIONS Principle of Abuse of Rights Article 19 Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith Article 20 Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same. Article 21 Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customers or public policy shall compensate the latter of damages. Article 19 . Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. Article 19 is believed to be a mere declaration of principles that are being implemented by other provisions. It declares the principle of law; It lays down a rule of conduct for the government of human relations and for the maintenance of social order, but it does not provide a remedy for its violation; It is not the basis of an actionable tort. It describes the degree of care required so that an actionable tort may arise when it is alleged together with Article 20 and 21 . A person has the right to exercise his rights, but in so doing, he must be mindful of the rights of another and if he causes damage to another; he can be liable for damages. The rule allowing the recovery for abuse of right is a departure from the traditional view that a person is not liable for damages resulting from the exercise of one’s right. It prescribes that a person should not use his right unjustly or in bad faith, otherwise he opens himself to liability for damages Elements of Abuse of Rights: 1. There is a legal right or duty 2. The legal right or duty is exercised in bad faith; and 3. The exercise is for the sole intent of prejudicing or injuring another 4. The complainant was prejudiced or injured as a result of the said exercise or performance by the defendant Test of Abuse of Rights 1. Dependent on circumstances of each case. 2. Rests on court’s sound discretion NOTE: 1. There is not hard and fast rule which can be applied to determine whether the principle of abuse of rights may be invoked. a. Modern jurisprudence does not permit acts which although not unlawful, are anti-social. There is undoubtedly an abuse of right when a legal right is exercised in bad faith and for the sole purpose of prejudicing or injuring another. When the objective of the actor is illegitimate, the illicit act cannot be concealed under the guise of exercising a right b. The exercise of a right must be in accordance with the purpose for which it was established and must not be excessive or unduly harsh. Every abnormal exercise of a right, contrary to it’s socio-economic purpose, is an abuse that will give rise to liability. 2. The courts, in the exercise of their discretion, will have to determine all the facts and circumstances when the exercise of a right is unjus, or when there has been an abuse of right. Cases when there is Abuse of Rights a. Abuse of Rights of Creditors b. Abuse of Right of Principal c. Abuse of Right of Agents d. Abuse of Right of Public Officers e. Abuse of Court Processes f. Abuse of Right by Contracting Party g. Deprivation of Water Service h. Abuse of Right of Schools Abuse of Rights of Creditors Velayo v. Shell Co ISSUE: Can Shell Company in the Philippines be made liable to pay for damages to the other creditors? Ruling: Yes, because it did not show good faith and honesty, invoking Article 19 of the New Civil Code, which provides that “every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. PNB vs Court of Appeals Where the bank refused to approve the lease of sugar quota by its debtormortgagor, knowing that the agricultural year was about to expire at which time the mortgagor would not be able to utilize the mortgaged sugar quota although the difference between the price demanded by the bank and the proposed lease was only a small amount (about 200 pesos) and hardly anybody was willing to lease at a higher rate. Abuse of Right of Principal . ▣ A creditor taking advantage of his knowledge that insolvency proceedings will be instituted by the debtor. ▣ A bank refused to approve the lease of sugar quota by its debtormortgagor just because it wanted to raise the consideration for the lease. . ▣ A principal unreasonable terminated a general agency agreement so that it can appropriate the insurance business of the agent and receive the commission Arturo Valenzuela v. CA We agree with the court a quo that the principal cause of the termination of Valenzuela as General Agent of Philamgen arose from his refusal to share his Delta commission. The records sustain the conclusions of the trial court on the apparent bad faith of the private respondents in terminating the General Agency Agreement of petitioners. It is axiomatic that the findings of fact of a trial judge are entitled to great weight and should not be disturbed on appeal unless for strong and cogent reasons, because the trial court is in a better position to examine the evidence as well as to observe the demeanor of the witnesses while testifying. In the case at bar, the records show that the findings and conclusions of the trial court are supported by substantial evidence and there appears to be no cogent reason to disturb them (Mendoza v. Court of Appeals. 156 SCRA 597 [1987]). Abuse of Right of Agents . ▣ An agent took advantage of their position when they bought the housing units for themselves and violating the trust reposed to them as negotiators on behalf of the tenants. Abuse of Right of Public Officers . ▣ A public officer who had authority to approve clearances of resigning employees did not issue a clearance to one employee but issued the same to all other employees who were similarly situated. Llorente vs Sandiganbayan The general rule is that this Court is bound by the findings of fact of the Sandiganbayan. As we said, the acts of the petitioner were legal (that is, pursuant to procedures), as he insists in this petition, yet it does not follow, as we said, that his acts were done in good faith. For emphasis, he had no valid reason to "go legal" all of a sudden with respect to Mr. Curio, since he had cleared three employees who, as the Sandiganbayan found, "were all similarly circumstanced in that they all had pending obligations when, their clearances were filed for consideration, warranting similar official action." The Court is convinced that the petitioner had unjustly discriminated against Mr. Curio. It is no defense that the petitioner was motivated by no ill-will (a grudge, according to the Sandiganbayan), since the facts speak for themselves. It is no defense either that he was, after all, complying merely with legal procedures since, as we indicated, he was not as strict with respect to the three retiring other employees. There can be no other logical conclusion that he was acting unfairly, no more, no less, to Mr. Curio. It is the essence of Article 19 of the Civil Code, under which the petitioner was made to pay damages, together with Article 27, that the performance of duty be done with justice and good faith. In the case of Velayo vs. Shell Co. of the Philippines, 13 we held the defendant liable under Article 19 for disposing of its propertv — a perfectly legal act — in order to escape the reach of a creditor. In two fairly more recent cases, Sevilla vs. Court of Appeals 14 and Valenzuela vs. Court of Appeals, 15 we held that a principal is liable under Article 19 in terminating the agency — again, a legal act — when terminating the agency would deprive the agent of his legitimate business. We believe that the petitioner is liable under Article 19. Abuse of Court Processes . ▣ Petitioners commenced the demolition of the house of the respondents under the authority of a writ of demolition that was issued by the trial court. ▣ The winning party in a court litigation did not give the occupants of the house sought to be demolished sufficient time to remove their personal belongings. Abuse of Right by Contracting Party . ▣ The petitioner terminated its hauling contract with the respondent because the latter sympathized with the picketing workers of the petitioner. Petrophil v. Court of Appeals Two questions must initially be resolved: (1) whether or not the hauling contract needed interpretation, and (2) whether petitioner was guilty of arbitrary termination of the contract, which would entitle Dr. Cruz to damages. On the first issue, we agree with petitioner that the contract clearly provided for two ways of terminating the contract, and, one mode does not exclude the other. Although the contract provided for causes for termination, it also stated in paragraph 11 that the contract was for an indefinite term subject to the right of Petrophil to terminate it any time after a written notice of 30 days. When the language of a contract is clear, it requires no interpretation.15 Thus, the finding that the termination of the contract was "for cause", is immaterial. When petitioner terminated the contract "without cause", it was required only to give Dr. Cruz a 30-day prior written notice, which it did in this case. However, we differ with petitioner on the second issue. Recall that before Petrophil terminated the contract on May 25, 1987, there was a strike of its employees at the Pandacan terminal. Dr. Cruz and her husband were seen at the picket line and were reported to have instructed their truck drivers not to load petroleum products. At the resumption of the operation in Pandacan terminal, Dr. Cruz's contract was suspended for one week and eventually terminated. Based on these circumstances, the Court of Appeals like the trial court concluded that Petrophil terminated the contract because of Dr. Cruz's refusal to load petroleum products during the strike. In respondent court's view, the termination appeared as a retaliation or punishment for her sympathizing with the striking employees. Nowhere in the record do we find that petitioner asked her to explain her actions. Petrophil simply terminated her contract. These factual findings are binding and conclusive on us, especially in the absence of any allegation that said findings are unsupported by the evidence, or that the appellate and trial courts misapprehended these facts.16 In terminating the hauling contract of Dr. Cruz without hearing her side on the factual context above described, a petitioner opened itself to a charge of bad faith. While Petrophil had the right to terminate the contract, petitioner could not act purposely to injure private respondents. In BPI Express Card Corporation vs. CA, 296 SCRA 260, 272 (1998), we held that there is abuse of a right under Article 19 if the following elements are present: 1) there is a legal right or duty; 2) which is exercised in bad faith; 3) for the sole purpose of prejudicing or injuring another. We find all these three elements present in the instant case. Hence, we are convinced that the termination by petitioner of the contract with Dr. Cruz calls for appropriate sanctions by way of damages. Deprivation of Water Service . ▣ MWSS sent a notice of investigation to the plaintiff prior to the disconnection of the latter’s water services but this was done only a few hours before the actual disconnection. MWSS vs Act Theater While it is true that MWSS had sent a notice of investigation to plaintiff-appellee prior to the disconnection of the latters water services, this was done only a few hours before the actual disconnection. Upon receipt of the notice and in order to ascertain the matter, Act sent its assistant manager Teodulo Gumalid, Jr. to the MWSS office but he was treated badly on the flimsy excuse that he had no authority to represent Act. Acts water services were cut at midnight of the day following the apprehension of the employees.Clearly, the plaintiff-appellee was denied due process when it was deprived of the water services.As a consequence thereof, Act had to contract another source to provide water for a number of days.Plaintiff-appellee was also compelled to deposit with MWSS the sum of P200,000.00 for the restoration of their water services. There is, thus, no reason to deviate from the uniform findings and conclusion of the court a quo and the appellate court that the petitioners act was arbitrary, injurious and prejudicial to the respondent, justifying the award of damages under Article 19 of the Civil Code. Abuse of Rights of Schools . ▣ An educational institution is guilty of misleading a student into believing the latter had satisfied all the requirements for graduation when such is not the case. UE vs Jader Educational institutions are duty-bound to inform the students of their academic status and not wait for the latter to inquire from the former. The conscious indifference of a person to the rights or welfare of the person/persons who may be affected by his act or omission can support a claim for damages.10 Want of care to the conscious disregard of civil obligations coupled with a conscious knowledge of the cause naturally calculated to produce them would make the erring party liable.11 Petitioner ought to have known that time was of the essence in the performance of its obligation to inform respondent of his grade. It cannot feign ignorance that respondent will not prepare himself for the bar exams since that is precisely the immediate concern after graduation of an LL.B. graduate. It failed to act seasonably. Petitioner cannot just give out its student's grades at any time because a student has to comply with certain deadlines set by the Supreme Court on the submission of requirements for taking the bar. Petitioner's liability arose from its failure to promptly inform respondent of the result of an examination and in misleading the latter into believing that he had satisfied all requirements for the course. Worth quoting is the following disquisition of the respondent court. Cases when there is No Abuse of Right . a. Absolute Rights b. Rights of the Corporation and its officers and Directors c. Exercise of Rights Included in Ownership d. Rights of Schools, Teachers and Administrator e. Right to Sue f. Contracting Parties Absolute Rights . ▣ The refusal to enter into a contract NOTE: Absolute Rights can never be the basis of liability Rights of the Corporation and its Officers . and Directors . ▣ The petitioner was removed as executive director by the board of the society in accordance with the constitution and by-laws. ▣ A nonstock corporation sending demand letters to its member for the payment of unpaid charges when the tenor of the letters do not deviate from the standard practice. Exercise of Rights Included in Ownership . ▣ An owner of a lot that adjoins the highway fenced his property. NOTE: No abuse of right was committed although the tenants in the inner lot can no longer pass through his property. In the absence of an easement of right of way, the owner is free to enclose his property even if damage to another will result. (Damnun Absque Injuria) Rights of Schools, Teachers, and Administrator . . ▣ The Department Head, Assistant Division Superintendent and the Principal placed a teacher in the list of excess teacher, but the action was not motivated by undue motives ▣ A school did not confer upon a student a degree with honors. NOTE: There was no abuse of right because the action is not motivated by undue motives Conferment of honors is an exercise of discretion. However if these was already an order from a superior officer to allow a person to graduate with honors, the officer who failed to implement the order is liable for damages for neglect of duty. Right to Sue . ▣ A plaintiff who rejected the defendants offer of settlement and subsequently filed an action for collection. Contracting Parties . ▣ Refusal of a party to renew a distributionship agreement ▣ Cancellation of provisions of Project Management Agreement when the agreement allowed unilateral cancellation ▣ Foreclosure of a mortgaged property of a debtor Article 20 . Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same. Scope: ▣ Violations of existing law ▣ Covers all legal wrongs done in violation of law, whether willfully or negligently. NOTE: It pervades (spread through and perceived in every part of) the entire legal system, and renders it impossible that a person who suffers damage because another violated some legal provisions, should find himself without relief It furnishes general sanction for violations of other laws which do not specifically provide any sanction, penalty or liability for such violation but nevertheless violates certain rudimentary rights of the injured or aggrieved party. It also provides the legal basis for the award of damages to a person who suffers damage whenever another commits a violation of some legal provision It concerns violations of existing law as basis for an injury. It allows recovery should the act have been willful or negligent Willful may refer to which is considered by the plaintiff in tort action as injurious Negligence may refer to a situation where the act was consciously done but without intending the result which the plaintiff considers as injurious The rule allowing the recovery for abuse of right is a departure from the traditional view that a person is not liable for damages resulting from the exercise of one’s right It prescribes that a person should not use his right unjustly or in bad faith, otherwise he opens himself to liability for damages The rule in Article 20 (together with Article 21) complements the principle of abuse of rights enumerated in Article 19 Conduct under Article 20 may be both a crime and a quasi-delict - a felony may be committed by means of deceit (when performed with deliberate intent) or by means of fault or negligence. (Art 3 of RPC) ARTICLE 3. Definition. — Acts and omissions punishable by law are felonies (delitos). Felonies are committed not only by means of deceit (dolo) but also by means of fault (culpa). If the fault or negligence does not constitute a penal offense, the actor is liable only for quasi-delict under Article 2176 ART. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Article 21 . Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customers or public policy shall compensate the latter of damages. NOTE: It requires that the act be willful that there was an intention to do the act and a desire to achieve the outcome. The legal issues revolve around whether such outcome should be considered a legal injury on the part of the plaintiff or whether the commission of the act was done in violation of the standards of care required in Article 19 Acts Contra Bonus Mores . A loss or injury is caused by acts which are not necessarily proscribed by law. It seeks to remedy the “countless gaps in the statutes, which leave so many victims of moral wrongs helpless, even though they have actually suffered mental and moral injury.” (Globe Mackay Cable v. Court of Appeals) Breach of Promise to Marry . General Rule: Breach of promise to marry by itself is not actionable. Exception: It becomes actionable if there are additional circumstances that make it fall within the purview of Article 19, 20,21 or 2176 of the New Civil Code. NOTE: ▣ Broad Coverage □ It gives adequate legal remedy for that untold number of moral wrongs which is impossible for human foresight to provide for specifically in the statutes. □ It includes injurious acts that are contrary to public policy but are not forbidden by statute NOTE: The rule allowing the recovery for abuse of right is a departure from the traditional view that a person is not liable for damages resulting from the exercise of one’s right It prescribes that a person should not use his right unjustly or in bad faith, otherwise he opens himself to liability for damages ▣ Rationale □ “a prudent earnest of justice in the face of impossibility of enumerating, one by one, all wrongs which cause damage.” Elements of Acts Contra Bonus Mores: 1. There is an act which is legal 2. The act is contrary to morals, good custom, public order or public policy; and 3. The act is done with intent to injure These include cases where: 1. There was financial damage – one of parties incurred expenses for the wedding and other incidents thereof 2. Social humiliation was caused to one of the parties – the parties set the wedding and went through all the preparations and publicity but one of the parties walked out of it when the matrimony was about to be solemnized. 3. Where there was moral seduction – although moral seduction is not punishable, it connotes essentially the ideo of deceit, enticement, superior power or abuse of confidence on the part of the seducer Action may prosper if the breach was done in such manner that is clearly contrary to good morals (Bunag Jr v. Court of Appeals) Claim for damages rejected because there was no moral seduction (Constantino v. Mendez) Action for damages will prosper if there is fraud (Gashem Shookat Baksh v. Court of Appeals) In pari delicto rule does not apply in breach of promise to marry cases where the defendant is guilty of moral seduction (Gashem Shookat Baksh v. Court of Appeals) Seduction and Sexual Assault . Seduction, by itself, without breach of promise to marry is an act contrary to morals, good customs and public policy. NOTE: The defendant is liable if he employed deceit, enticement, superior power or abuse of confidence in successfully having sexual intercourse with another. Desertion by a Spouse . A spouse has a legal obligation to live with his or her spouse. He/She may be held liable if he does not perform his or her duty to the other. Trespass and Deprivation of Property . ▣ It is a tort committed when a person unlawfully invades the real property of another, or a person is deprived of his personal property even in the absence of criminal liability ▣ Trespass to and/or deprivation of real property ▣ Trespass to Personal Property NOTES: Damages may be awarded to the real owner is he suffered damages because he was deprived possession of his property by a possessor in bad faith or by a person who does not have any right over the property. There is view that trespass may be committed even in good faith. Example: A employs a surveyor of recognized ability to make a survey of his land. The survey shows that a particular strip of land is within his boundaries. In consequence, A clears this land of timber and prepares it for cultivation. In act, the survey is mistaken and the strip in question is part of the tract owned by his neighbor, B. A is subject to liability to B. It is believed, however, that Article 448 of the Civil Code in relation to Article 456, does not permit an action for damages where the builder, planter or sower acted in good faith. The landowner is limited only to the options given to him under Article 448, that is, to appropriate whatever was built or planted or to compel the builder or planter to purchase the portion of the lot enrouched upon. The law does not allow recovery of damages in either case. This is consistent with the basic rule on accession continua that a person in good faith is not liable but responsible. There is only liability if the builder in good faith acted negligently. [2]Accession Continua – the right pertaining to the owner of a thing over everything that is incorporated or attached thereto either naturally or artificially; by external forces. Article 448 The owner of the land on which anything has been built, sown or planted in good faith, shall have the right to appropriate as his own the works, sowing or planting, after payment of the indemnity provided for in articles 546 and 548, or to oblige the one who built or planted to pay the price of the land, and the one who sowed, the proper rent. However, the builder or planter cannot be obliged to buy the land if its value is considerably more than that of the building or trees. In such case, he shall pay reasonable rent, if the owner of the land does not choose to appropriate the building or trees after proper indemnity. The parties shall agree upon the terms of the lease and in case of disagreement, the court shall fix the terms thereof. Article 456 In the cases regulated in the preceding articles, good faith does not necessarily exclude negligence, which gives right to damages under article 2176. Trespass may include cases covered by accession continua with respect to movable property where the person who took possession of the property of another was in bad faith. In the case of Magbanua v. IAC, it was ruled that the landlord is liable for damages to the tenants when he deprived then of water in order to force the said tenants to vacate the lot that they were cultivating Manila Electric Company v. Court of Appeals, an electric company certainly has the right to disconnect the electric service of a customer is the latter unreasonably fails to pay his bills. However, the right to disconnect and deprive the customer of electricity should be exercised in accordance with law and rules. (e.g. if the company disconnect the service without prior notice or even with notice but the timing of the notice is unreasonable), the company commits tort under Article 21. Abortion and Wrongful Death ▣ There is a right to recover damages against a physician who caused an abortion, if the abortion was caused through the physician’s negligence. (Geluz v. Court of Appeals) . NOTE: In this case, the Court found no basis to award moral damages because the husband was not able to show factual basis for the award of such damages (such as distress or anguish) A doctor who performs illegal abortion is criminally liable. In fact, criminal and civil liability will also result even if the abortion is unintentional. Illegal Dismissal . ▣ An employer has a right to dismiss an employee on the grounds provided under the Civil Code. NOTE: Article 21 in relation to Article 19 However, such exercise of the right to terminate must be consistent with the general principles provided under article 19 and 21. Non-compliance may render the employer liable for damages. If the dismissal is done anti-socially or oppressively then the employer should be deemed to have violated Article 1701 and Article 21. An employer may also be held liable for damages if the manner of dismissing the employee is contrary to morals, good customers and public policy (e.g. done by false imputation of misdeed to justify dismissal). There was an abuse of right when an employer dismissed an employee on the ground of serious losses although there were no such serious losses. Malicious Prosecution . It is an action for damages brought by one against another whom 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 the defendant. Elements of Malicious Prosecution: 1. The fact of the prosecution and the further fact that the defendant was himself the prosecutor, and that the action was finally terminated with an acquittal; 2. That bringing the action, the prosecutor acted without probable cause; 3. The prosecutor was actuated or impelled by Malice Malicious Prosecution . A. Malice – The prosecutor acted with “inexcusable intent to injure, oppress, vex, annoy or humiliate” B. Acquittal – A criminal information filed in the court and final judgement is rendered dismissing the case against the accused. NOTE: It is not sufficient that a person is discharged on a writ of habeas corpus and granted bail. Such discharge is not considered termination of the action. However, acquittal may include dismissal even if the prosecutor/defendant repeatedly filed cases which were obviously unfounded, which in this case a person will be allowed to file a malicious prosecution case. C. Control by Prosecutor – A person may still be held liable for malicious prosecution even if the public prosecutor controlled the litigation. D. Civil Cases – There can be malicious prosecution in civil cases. In the case of Inhelder Corporation v. CA The Court clarified that there is no distinction between actions for criminal prosecutions and civil suits. Both classes require substantially the same essentials.” Thus malice and lack of probable cause are also indispensable. Alternative to malicious prosecution, a plaintiff may also file an action for damages for abuse of processes under articles 2176. In the case of Gregorio v. CA Gregorio was charge with the violation of BP 22 which was then dismissed because it was established that Gregorio was not a signatory of the bounced check. Sansio and Datuin are in error when they insist that Gregorio’s complaint is based on malicious prosecution. In an action to recover damages for malicious prosecution, it must be alleged and established that Sansio and Datuin were impelled by legal malice or bad faith in deliberately initiating an action against Gregorio, knowing that the charges were false and groundless, intending to vex and humiliate her. As previously mentioned, Gregorio did not allege this in her complaint. Moreover, the fact that she prayed for moral damages did not change the nature of her action based on quasi-delict. She might have acted on the mistaken notion that she was entitled to moral damages, considering that she suffered physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, and social humiliation on account of her indictment and her sudden arrest. Verily, Gregorio was only acting within her right when she instituted against Sansio and Datuin an action she perceived to be proper, given the factual antecedents of the case. realized the supposed non-payment. (California Clothing v. Quinones) Public Humiliation . Catch All Provisions Award for damages can be sustained when a person suffered humiliation through the positive acts of another directed to him. NOTE: -Slapping someone in public, Patricio v. Oscar Leviste, The act of private respondent in hitting petitioner on the face is contrary to morals and good customs and caused the petitioner mental anguish, moral shock, wounded feelings and social humiliation Maria Ford v. Court of Appeals The same was punishable under the RPC, it is committed by any person who performs an act that costs dishonor, discredit or contempt. Slander by deed when someone slapped a priest before a large congregation while the priest was officiating a religios ceremony. Clearly, these statements are outrightly accusatory. Petitioners accused respondent that not only did she fail to pay for the jeans she purchased but that she deliberately took the same without paying for it and later hurriedly left the shop to evade payment. These accusations were made despite the issuance of the receipt of payment and the release of the item purchased. There was, likewise, no showing that respondent had the intention to evade payment. Contrary to petitioners’ claim, respondent was not in a rush in leaving the shop or the mall. This is evidenced by the fact that the Guess employees did not have a hard time looking for her when they . Article 19 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. - It enumerates the standards of conduct Article 20 Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same - It provides for violation of other laws Article 21 Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customers or public policy shall compensate the latter of damages - It provides the remedy for the person injured by the willful or negligent act of another NOTE: Although the requirements of each provision are different, Articles 19, 20 and 21 are all related to each other. - Article 19 – Enumerates the standards of conduct - Article 20 – provides for violation of other laws - Article 21 – provides the remedy for the person injured by the willful or negligent act of another Catch All Provisions . Article 19 It enumerates the standards of conduct Article 20 It provides for violation of other laws Article 21 It provides the remedy for the person injured by the willful or negligency act of another NOTE: Although the requirements of each provision are different, Articles 19, 20 and 21 are all related to each other. Article 19 is the general rule which governs the conduct of human relation, describing the degree of care required so that an actionable tort may arise when alleged together with Articles 20 and 21.