Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
TORTS
(QUASI-DELICT)
CHAPTER 1
INTRODUCTORY CONCEPTS
1.
TORTS in common law cover all wrongful Definition
acts, although sometimes viewed to be limited only to a
wrong independent of a contract. In common law countries like the United States, torts may either be intentional or unintentional. They may also fall under the
category of strict liability torts. Intentional torts include:
battery, assault (apprehension of harmful or offensive
contact), false imprisonment, intentional infliction of
emotional distress (IIED), invasion of privacy, fraud,
defamation of character (includes libel, which is written
defamation of character and slander, which is non-written defamation of character), malicious prosecution,
abuse of process, the real property tort of trespass to
land, and the personal property torts of conversion and
trespass to chattels. On the other hand, unintentional
torts are usually founded on negligent acts and may
include malpractice (professional negligence), and product liability.
2.
The word tort came to be adopted in our
jurisprudence upon the implantation of American sovereignty in the Philippines. But there are important differences between the common law on torts obtaining in
the United States and the law on torts in the Philippines.
This is due to the fact that the provisions of our codes
governing legal wrongs which we call torts are sometimes different from the common law on torts (see
Nicolas, The Philippine Law on Torts and Damages, p. 13).
1
3.
The Philippines is a civil law country. Our
private laws are found in codes mainly based on the
Spanish codes which were continued in force with certain modifications after the advent of the American regime and in laws passed by our legislature from time to
time. These latter laws were based on, or greatly influenced by, American ideas and principles which are the
product of the common law. In the interpretation and
application of our codes and legislation, our courts have
freely drawn upon American precedents and authorities. The result of all this is that many common law principles have been engrafted in our legal system. Perhaps,
in no branch of law in the Philippines is the blending of
the common law and the civil law systems better exemplified that in the field of torts (Ibid., citing Jarencio, Philippine Legal History).
4.
In the Philippines, our concept of torts leans
towards its civil law equivalent of culpa aquiliana. Thus,
in Article 2176 of our Civil Code, the following definition appears: Whoever by act or omission causes damage to another, there being fault or negligence, is obliged
to pay for the damage done. Such fault or negligence, if
there is no pre-existing contractual relation between the
parties, is called a quasi-delict.
Distinguished
5.
In the general plan of the Philippine legal sysfrom torts
tem, intentional and malicious acts that are constitutive
CHAPTER 1
INTRODUCTORY CONCEPTS
6.
Quasi-delict, known in Spanish legal treatises
as culpa aquiliana, is a civil law concept while torts is
an Anglo-American or common law concept. Tort is
much broader than culpa aquiliana because it includes
not only negligence, but intentional criminal acts as well
such as assault and battery, false imprisonment and deceit (Gashem Shookat Baksh vs. Court of Appeals, et al., G.R.
No. 97336, February 19, 1993).
7.
Quasi-delict, as defined in Article 2176 of the
Civil Code, (which is known in Spanish legal treatises as
culpa aquiliana, culpa extra-contractual or cuasi-delitos) is
homologous but not identical to tort under the common
law, which includes not only negligence, but also intentional criminal acts, such as assault and battery, false
imprisonment, and deceit. (Coca-Cola Bottlers Phils., Inc.
vs. Court of Appeals, et al., G.R. No. 110295, October 18,
1993).
8.
However, in cases of special torts (see discussion in Chapter 7, infra.), willful acts may be made basis
of an action for damages. In the general scheme of the
Philippine legal system envisioned by the Commission
responsible for drafting the New Civil Code, intentional
and malicious acts, with certain exceptions, are to be
governed by the Revised Penal Code while negligent
acts or omissions are to be covered by Article 2176 of the
Civil Code. In between these opposite spectrums are injurious acts which, in the absence of Article 21, would
have been beyond redress. Thus, Article 21 fills that
vacuum. It is even postulated that together with Articles
19 and 20 of the Civil Code, Article 21 has greatly broadened the scope of the law on civil wrongs; it has become
much more supple and adaptable than the Anglo-American law on torts. (Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines, vol. 1, 1985 ed.,
72).
9.
The elements of a quasi-delict are (a) damages Elements of
suffered by the plaintiff; (b) fault or negligence of the Quasi-delict
defendant, or some other person for whose acts he must
respond; and (c) the connection of cause and effect between the fault or negligence of the defendant and the
damages incurred by the plaintiff (Taylor vs. Manila Elec-
CHAPTER 1
INTRODUCTORY CONCEPTS
Culpa
aquiliana
distinguished
from culpa
criminal
1
Art. 100. Civil liability of a person guilty of felony. Every person criminally liable for a felony is also civilly liable.
CHAPTER 1
INTRODUCTORY CONCEPTS
Code while the civil case is based on culpa aquiliana actionable under Articles 2176 and 2177 of the Civil Code.
24. Under Section 1 of the present Rule 1112, what
is deemed instituted with the criminal action is only
the action to recover civil liability arising from the crime
or ex-delicto. All the other civil actions under Articles 32,
CHAPTER 1
INTRODUCTORY CONCEPTS
3
ARTICLE 32. Any public officer or employee, or any private
individual, who directly or indirectly obstructs, defeats, violates or in
any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages:
(1)
Freedom of religion;
(2)
Freedom of speech;
(3)
Freedom to write for the press or to maintain a periodical publication;
(4)
Freedom from arbitrary or illegal detention;
(5)
Freedom of suffrage;
(6)
The right against deprivation of property without due
process of law;
(7)
The right to a just compensation when private property
is taken for public use;
(8)
The right to the equal protection of the laws;
(9)
The right to be secure in ones person, house, papers,
and effects against unreasonable searches and seizures;
(10) The liberty of abode and of changing the same;
(11) The privacy of communication and correspondence;
(12) The right to become a member of associations or societies for purposes not contrary to law;
10
CHAPTER 1
INTRODUCTORY CONCEPTS
11
12
CHAPTER 1
INTRODUCTORY CONCEPTS
6
ARTICLE 102. Subsidiary civil liability of innkeepers, tavernkeepers and proprietors of establishments. In default of the persons
criminally liable, innkeepers, tavernkeepers, and any other persons or
corporations shall be civilly liable for crimes committed in their establishments, in all cases where a violation of municipal ordinances or
some general or special police regulation shall have been committed
by them or their employees.
Innkeepers are also subsidiarily liable for the restitution of goods
taken by robbery or theft within their houses from guests lodging
therein, or for the payment of the value thereof, provided that such
guests shall have notified in advance the innkeeper himself, or the
person representing him, of the deposit of such goods within the inn;
and shall furthermore have followed the directions which such innkeeper or his representative may have given them with respect to the
care of and vigilance over such goods. No liability shall attach in case
of robbery with violence against or intimidation of persons unless
committed by the innkeepers employees.
ARTICLE 103. Subsidiary civil liability of other persons. The
subsidiary liability established in the next preceding article shall also
apply to employers, teachers, persons, and corporations engaged in
any kind of industry for felonies committed by their servants, pupils,
workmen, apprentices, or employees in the discharge of their duties.
13
14
37. By definition, the pre-existing contract between the parties bar the applicability of the law on quasidelict.
CHAPTER 1
INTRODUCTORY CONCEPTS
Thus, in a case involving a stabbing incident inside the campus where the assailants were not students
or employees of the school, the Supreme Court refused
to apply the rules on quasi-delict as the circumstances of
the present case evince a contractual relation between
the PSBA and Carlitos Bautista. Said the Supreme Court,
[a] perusal of Article 2176 shows that obligations arising from quasi-delicts or tort, also known as extra-contractual obligations, arise only between parties not otherwise bound by contract, whether express or implied.
(Philippine School of Business Administration, et al. vs. Court
of Appeals, G.R. No. 84698, January 4, 1992).
38. However, in a number of cases, the mere ex- Exceptions
istence of a contract does not automatically negate the
existence of quasi-delict.
In Singson vs. Bank of the Philippine Islands, (23 SCRA
1117 [1968]), it was stated that the existence of a contract between the parties does not bar the commission of
a tort by the one against the other and the consequent
recovery of damages therefor.
39. Likewise, in Air France vs. Carrascoso, 18 SCRA
155, involving an airplane passenger who, despite his
first-class ticket, had been illegally ousted from his firstclass accommodation and compelled to take a seat in
the tourist compartment, was held entitled to recover
damages from the air-carrier, upon the ground of tort on
the latters part, for, although the relation between the
passenger and a carrier is contractual both in origin
and nature . . . the act that breaks the contract may also
be a tort.
40. In effect, Air France is authority for the view
that liability from tort may exist even if there is a contract, for the act that breaks the contract may be also a
tort (Philippine School of Business Administration, et al. supra, citing Austro-America S.S. Co. vs. Thomas, 248 Fed.
231).
41. Hence, where the liability may itself be
deemed to arise from quasi-delict, i.e., the act which breaks
the contract may also be a quasi-delict, the mere fact that
there was pre-existing contract will not preclude a find-
15
16
tractual?
CHAPTER 1
INTRODUCTORY CONCEPTS
17
18
49. As the attendant negligence in culpa contractual is different from the attendant negligence in culpa
aquiliana, can one institute a civil case against different
sets of defendants, one based on culpa contractual and
the other based on culpa aquiliana? Clarifying decisions
in the past, the Supreme Court answered the question in
the affirmative in its fairly recent ruling in the case of
Construction Development Corporation of the Philippines vs.
Estrella, et al., G.R. No. 147791, September 8, 2006.
The Supreme Court ruled: [t] he owner of the other
vehicle which collided with a common carrier is solidarily
liable to the injured passenger of the same. The same rule
of liability was applied in situations where the negligence
of the driver of the bus on which plaintiff was riding concurred with the negligence of a third party who was the
driver of another vehicle, thus causing an accident. In
Anuran v. Buo, Batangas Laguna Tayabas Bus Co. v. Intermediate Appellate Court, and Metro Manila Transit Corporation v. Court of Appeals, the bus company, its driver, the
operator of the other vehicle and the driver of the vehicle
were jointly and severally held liable to the injured passenger or the latters heirs. The basis of this allocation of
liability was explained in Viluan v. Court of Appeals, thus:
Nor should it make any difference that the liability of
petitioner [bus owner] springs from contract while that
of respondents [owner and driver of other vehicle] arises
from quasi-delict. As early as 1913, we already ruled in
Gutierrez vs. Gutierrez, 56 Phil. 177, that in case of injury
to a passenger due to the negligence of the driver of the
bus on which he was riding and of the driver of another
vehicle, the drivers as well as the owners of the two vehicles are jointly and severally liable for damages. (Construction Development Corporation of the Philippines vs.
Estrella, et al., G.R. No. 147791, September 8, 2006).
50. But what if instead of filing one case founded
on both culpa aquiliana and culpa contractual, the victim
CHAPTER 1
INTRODUCTORY CONCEPTS
19
20
CHAPTER 1
INTRODUCTORY CONCEPTS
21
22
vs. Cresencia, et al., G.R. No. L-8194, July 11, 1956, that
plaintiffs action for damages is independent of the
criminal case and based, not on the employers subsidiary liability under the Revised Penal Code, but on a
breach of the carriers contractual obligation to carry his
passengers safely to their destination (culpa contractual).
x x x [I]n culpa contractual, the liability of the carrier is
not merely subsidiary or secondary, but direct and immediate (Articles 1755, 1756, and 1759, New Civil Code).
23
CHAPTER 2
ELEMENTS OF QUASI-DELICT
1.
Going by definition of quasi-delict under Negligence
Article 2176 of the Civil Code, it can be said that an defined
action for quasi-delict is founded on the existence of a
negligent act. A discussion, thus, of the concept of negligence is in order.
2.
Negligence is statutorily defined to be the
omission of that degree of diligence which is required
by the nature of the obligation and corresponding to the
circumstances of persons, time and place (Art. 1173,
NCC). It is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would
do, or the doing of something which a prudent and reasonable man would do (Philippine Bank of Commerce v.
Court of Appeals, G.R. No. 97626, 14 March 1997).
3.
It also refers to the conduct which creates undue risk of harm to another, the failure to observe that
degree of care, precaution and vigilance that the circumstance justly demand, whereby that other person suffers
injury (Smith Bell Dodwell Shipping Agency Corporation v.
Borja, G.R. No. 143008, 10 June 2002).
While the law relating to negligence in this jurisdiction may possibly be somewhat different from that in
Anglo-Saxon countries, the rules under which the fact
of negligence is determined are, nevertheless, generally
the same. That is to say, while the law designating the
person responsible for a negligent act may not be the
same here as in many jurisdictions, the law determining
what is a negligent act is the same here, generally speaking, as elsewhere. (Supreme Court of Spain, 4 December, 1903; 16 May, 1893; 27 June, 1894; 9 April, 1896; 14
23
24
4.
The test by which to determine the existence
of negligence in a particular case may be stated as follows: Did the defendant in doing the alleged negligent
act use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of negligence.
5.
The law here in effect adopts the standard
supposed to be supplied by the imaginary conduct of
the discreet paterfamilias of the Roman law. The existence of negligence in a given case is not determined by
reference to the personal judgment of the actor in the
situation before him. The law considers what would be
reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence and determines liability
by that. (Picart vs. Smith, 37 Phil. 809 (1918).
6.
The question as to what would constitute the
conduct of a prudent man in a given situation must of
course be always determined in the light of human experience and in view of the facts involved in the particular case. Abstract speculations cannot be here of much
value but this much can be profitably said: Reasonable
men govern their conduct by the circumstances which
are before them or known to them. They are not, and are
not supposed to be omniscient of the future. Hence they
can be expected to take care only when there is something before them to suggest or warn of danger. Could a
prudent man, in the case under consideration, foresee
harm as a result of the course actually pursued? If so, it
was the duty of the actor to take precautions to guard
against that harm. Reasonable foresight of harm, followed by the ignoring of the suggestion borne of this
provision, is always necessary before negligence can be
held to exist (Picart vs. Smith, supra; also, People v. De los
Santos, G.R. No. 131588, 27 March 2001).
7.
Foreseeability of the harm is therefore an indispensable requirement. Thus, in a case where the
CHAPTER 2
ELEMENTS OF QUASI-DELICT
25
Supreme Court found that the actor could not have reasonably foreseen the harm that would befall him, it was
ruled that he was not guilty of negligence (Civil Aeronautics Administration vs. Court of Appeals, et al., G.R. No.
L-51806, November 8, 1988).
8.
In the civil law and at common law, three Degrees of
degrees of negligence were recognized, namely, slight negligence
negligence, ordinary negligence and gross negligence.
Slight negligence is the failure to exercise great or
extraordinary care. Ordinary negligence is the want of
ordinary care and diligence, that is, such care and diligence as an ordinarily prudent person would exercise
under the same or similar circumstances. Gross negligence is materially greater than ordinary negligence, and
consists of an entire absence of care or an absence of
even slight care or diligence; it implies a thoughtless
disregard for consequences or an indifference to the
rights or welfare of others (cf., 65 CJS at pp.536-539).
9.
The concept itself is relative and compara- Nature of the
tive. The degree of care to be exercised depends upon concept
person, place and time. Negligence is want of care required by the circumstances. It is a relative or comparative not an absolute term, and its application depends
upon the situation of the parties, and the degree of care
and vigilance which the circumstances reasonably impose. (U.S. vs. Juanillo, G.R. No. 7255, October 3, 1912).
10. The operator of an automobile is bound to
exercise care in proportion to the varying danger and
risks of the highway and commensurate with the dangers naturally incident to the use of such vehicle. He is
obliged to take notice of the conditions before him, and
if it is apparent that by a particular method of proceeding he is liable to work an injury, it is his duty to adopt
some other or safer method if within reasonable care
and prudence he can do so. In determining the degree
of care an operator of an automobile should use, when
on the highway, it is proper to take into consideration
the place, presence or absence of other travelers, the
speed of the automobile, its seize, appearance, manner
of movement, and the amount of notice it makes, and
26
CHAPTER 2
ELEMENTS OF QUASI-DELICT
27
28
electricity is an agency, subtle and deadly. The measure of care required of electric companies must be commensurate with or proportionate to the danger. The duty
of exercising this high degree of diligence and care extends to every place where persons have a right to be
(Astudillo vs. Manila Electric Co., G.R. No. 33380, December 17, 1930).
Factors to be
considered
CHAPTER 2
ELEMENTS OF QUASI-DELICT
29
30
an ordinary prudent and intelligent person, have reasonable ground to expect at the moment of his act or
default that an injury to some person might probably
result therefrom. (McKee vs. Intermediate Appellate Court,
G.R. No. 68102, July 16, 1992).
24. Proximate cause is determined by the facts
of each case upon mixed considerations of logic, common sense, policy and precedent (The Consolidated Bank
& Trust Co. v. Court of Appeals, G.R. No. 138569, September
11, 2003, 410 SCRA 562).
25. The term has also been defined as the dominant or immediate cause; the cause that sets the others
in motion; the efficient cause; the one that necessarily
sets the other causes in operation. An act or omission is
not the proximate cause of an injury unless, had it not
happened, the injury would not have occurred. The
proximate cause need not be the sole cause, or necessarily the direct cause, or the one which is nearest in time
or place to the result (86 C.J.S. 943).
26. We seem to have also the adopted the above
but-for test because [t]he omission to perform a duty,
such as the placing of warning signs on the site of the
excavation, constitutes the proximate cause only when
the doing of the said omitted act would have prevented
the injury. (PLDT, Inc. vs. Court of Appeals, G.R. No. 57079,
September 29, 1989).
Concurrence
of efficient
causes
CHAPTER 2
ELEMENTS OF QUASI-DELICT
without the negligence or wrongful acts of the other concurrent tortfeasor. Where several causes producing an
injury are concurrent and each is an efficient cause without which the injury would not have happened, the 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 actors negligence ceases to be a
proximate cause merely because it does not exceed the
negligence of other actors. Each wrongdoer is responsible for the entire result and is liable as though his acts
were the sole cause of the injury (Far Eastern Shipping
Co. vs. Court of Appeals, et al., G.R. No. 130068 & 130150,
October 1, 1998).
28. The burden of proving negligence that is the Burden of
proximate cause of the quasi-delict is on the one alleging proof
the same. The person who alleged negligence must prove
it (Cea vs. Villanueva, G.R. No. L-5446, March 10, 1911). A
person claiming damages for the negligence of another
has the burden of proving the existence of such fault or
negligence causative thereof. The facts constitutive of
negligence must be affirmatively established by competent evidence. Whosoever relies on negligence for his
cause of action has the burden in the first instance of proving the existence of the same if contested, otherwise his
action must fail (PLDT vs. Court of Appeals, supra).
29. If negligence is not established, there can be
no damages. Where it appears that an injury was received in an accident1 , without the intervention of neg1
Defined as an occurrence by chance, and not as expected. As
used in the phrase injury arising by accident in compensation statutes, the term is interpreted in the popular and ordinary sense, and is
generally construed as meaning an occurrence which is neither expected, designed, nor intentionally caused by the workman. (Ballentines
Law Dictionary, p. 11.)
An act of God has been defined as an accident, due directly and
exclusively to natural causes without human intervention, which by
no amount of foresight, pains or care, reasonably to have been expected, could have been prevented (Nakpil & Sons vs. Court of Appeals,
G.R. No. L-47851, October 3, 1986, citing 1 Corpus Juris 1174).
31
32
It is disputably presumed that a driver was negligent, if he had been found guilty of reckless driving or
violating traffic regulations at least twice within the next
preceding two months (Article 2184, NCC). Unless there
is proof to the contrary, it is presumed that a person
driving a motor vehicle has been negligent if at the time
of the mishap, he was violating any traffic regulation
(Article 2185, NCC).
31. Art. 2185 does not apply to non-motorized
vehicles, even if by analogy. A motorized vehicle operates by reason of a motor engine unlike a non-motorized vehicle, which runs as a result of a direct exertion
by man or beast of burden of direct physical force. A
motorized vehicle, unimpeded by the limitations in
physical exertion, is capable of greater speeds and acceleration than non-motorized vehicles. At the same time,
motorized vehicles are more capable of inflicting greater
injury or damage in the event of an accident or collision.
This is due to a combination of factors peculiar to the
motor vehicle, such as the greater speed, its relative
greater bulk of mass, and greater combustability due to
the fuels that they use (Anonuevo vs. Court of Appeals, et
al., G.R. No. 130003, October 20, 2004).
32. The bus driver, who was driving at a speed
too high to be safe and proper at or near an intersection
on the highway, and in any case too high to be able to
slow down and stop behind the cars which had preceded it and which had stopped at the intersection, chose
to swerve to the left lane and overtake such preceding
vehicles, entered the intersection and directly smashed
into the jeepney within the intersection. Immediately
before the collision, the bus driver was actually violating the following traffic rules and regulations, among
others, in the Land Transportation and Traffic Code,
Republic Act No. 4136, as amended (Section 35 [a], 41 a
CHAPTER 2
ELEMENTS OF QUASI-DELICT
& c). Thus, a legal presumption arose that the bus driver
was negligent (Kapalaran Bus Line vs. Coronado, G.R. No.
85331, August 25, 1989).
33. There is prima facie presumption of negligence
on the part of the defendant if the death or injury results
from his possession of dangerous weapons or substances,
such as firearms and poison, except when the possession or use thereof is indispensable in his occupation or
business (Article 2188, NCC).
34. Also, [w]here the thing which causes injury
is shown to be under the management of the defendant,
and the accident is such as in the ordinary course of
things does not happen if those who have the management use proper care, it affords reasonable evidence, in
the absence of an explanation by the defendant, that the
accident arose from want of care. (Cooley on Torts, Vol.
3, p. 369).
35. As Blacks Law Dictionary puts it: Res ipsa Res ipsa
loquitur. The thing speaks for itself. Rebuttable presump- loquitur
tion or inference that defendant was negligent, which defined
arises upon proof that instrumentality causing injury was
in defendants exclusive control, and that the accident
was one which ordinarily does not happen in absence of
negligence. Res ipsa loquitur is rule of evidence whereby
negligence of alleged wrongdoer may be inferred from
mere fact that accident happened provided character of
accident and circumstances attending it lead reasonably
to belief that in absence of negligence it would not have
occurred and that thing which caused injury is shown to
have been under management and control of alleged
wrongdoer. Hillen v. Hooker Const. Co., Tex. Civ. App.,
484 S.W. 2d 133, 155. Under doctrine of res ipsa loquitur the happening of an injury permits an inference of
negligence where plaintiff produces substantial evidence
that injury was caused by an agency or instrumentality
under exclusive control and management of defendant,
and that the occurrence was such that in the ordinary
course of things would not happen if reasonable care
had been used. (Layugan vs. Intermediate Appellate Court,
G.R. No. 73998, November 14, 1988).
33
34
36. In this jurisdiction, we have applied this doctrine in quite a number of cases, notably in Africa et al.
vs. Caltex, Inc., et al. (L-12986, March 31, 1966, 16 SCRA
448), and the latest is in the case of F.F. Cruz and Co.,
Inc. vs. CA (L-52732, August 29, 1988).
37. The doctrine of Res ipsa loquitur as a rule of
evidence is peculiar to the law of negligence which recognizes that prima facie negligence may be established
without direct proof and furnishes a substitute for specific proof of negligence. The doctrine is not a rule of
substantive law but merely a mode of proof or a mere
procedural convenience. The rule, when applicable to
the facts and circumstances of a particular case, is not
intended to and does not dispense with the requirement
of proof of culpable negligence on the part of the party
charged. It merely determines and regulates what shall
be prima facie evidence thereof and facilitates the burden of plaintiff of proving a breach of the duty of due
care (Corpus Juris Secundum, Vol. 65A). It is not a rule of
substantive law and, as such, it does not create an independent ground of liability. Instead, it is regarded as a
mode of proof, or a mere procedural convenience since
it furnishes a substitute for, and relieves the plaintiff of,
the burden of producing specific proof of negligence.
The maxim simply places on the defendant the burden
of going forward with the proof. Resort to the doctrine
may be allowed only when (a) the event is of a kind
which does not ordinarily occur in the absence of negligence; (b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently
eliminated by the evidence; and (c) the indicated negligence is within the scope of the defendants duty to the
plaintiff. Thus, it is not applicable when an unexplained
accident may be attributable to one of several causes, for
some of which the defendant could not be responsible
(FGU Insurance Corp. vs. G. P. Sarmiento Trucking Corp. et
al., G.R. No. 141910, August 6, 2002).
38. The doctrine can be invoked when and only
when, under the circumstances involved, direct evidence
is absent and not readily available. Hence, it has generally been held that the presumption of inference arising
CHAPTER 2
ELEMENTS OF QUASI-DELICT
35
36
tial evidence of negligence when direct evidence is lacking. The doctrine is based on the theory that the defendant either knows the cause of the accident or has the
best opportunity of ascertaining it and the plaintiff, having no knowledge thereof, is compelled to allege negligence in general terms. In such instance, the plaintiff
relies on proof of the happening of the accident alone to
establish negligence. The doctrine provides a means by
which a plaintiff can pin liability on a defendant who, if
innocent, should be able to explain the care he exercised
to prevent the incident complained of. Thus, it is the
defendants responsibility to show that there was no negligence on his part (Perla Compania de Seguros, Inc. vs.
Sps. Sarangaya, G.R. No. 147746, October 25, 2005).
43. Whether a person is negligent or not is a question of fact (Thermochem Incorporated v. Naval, G.R. No.
131541, 20 October 2000, 344 SCRA 76).
37
CHAPTER 3
NATURE OF LIABILITY
1.
The responsibility of two or more persons Liability of
who are liable for quasi-delict is solidary (Art. 2194, NCC), tortfeasors
and the sharing as between such solidary debtors is prorata (Singapore Airlines Limited vs. Court of Appeals, et al.,
G.R. No. 107356, March 31, 1995).
2.
There is no contribution between joint
tortfeasors whose liability is solidary since both of them
are liable for the total damage. Where the concurrent or
successive negligent acts or omissions of two or more
persons, although acting independently, are in combination the direct and proximate cause of a single injury
to a third person, it is impossible to determine in what
proportion each contributed to the injury and either of
them is responsible for the whole injury. Where their
concurring negligence resulted in injury or damage to a
third party, they become joint tortfeasors and are
solidarily liable for the resulting damage under Article
2194 of the Civil Code (Far Eastern Shipping Co. vs. Court
of Appeals, G.R. No. 130068 & 130150, October 1, 1998).
3.
The release of one tortfeasor does not operate
to release the others. Under American jurisprudence,
three rules have developed which deal with the question of whether the release of one joint tortfeasor releases other tortfeasors who are not parties to or named
in the release. The first is the ancient common-law rule
that a release of one joint tortfeasor releases all other
parties jointly liable, regardless of the intent of the parties. The second, otherwise known as the First Restatement rule, states that a release of one co-conspirator
normally releases all others unless the plaintiff expressly
37
38
5.
The obligation imposed by Article 2176 is demandable not only for ones own acts or omissions, but
also for those of persons for whom one is responsible.
(Art. 2180, NCC).
This is otherwise referred to as the doctrine of vicarious liability or imputed negligence.
Rationale
6.
Explaining the doctrine, it was held that
[w]ith respect to extra-contractual obligation arising
from negligence, whether of act or omission, it is competent for the legislature to elect and our Legislature
has so elected to limit such liability to cases in which
the person upon whom such an obligation is imposed is
morally culpable or, on the contrary, for reasons of public policy, to extend that liability, without regard to the
lack of moral culpability, so as to include responsibility
for the negligence of those persons whose acts or omissions are imputable, by a legal fiction, to others who are
in a position to exercise an absolute or limited control
over them. The legislature which adopted our Civil Code
has elected to limit extra-contractual liability with
certain well-defined exceptions to cases in which
moral culpability can be directly imputed to the persons
to be charged. This moral responsibility may consist in
having failed to exercise due care in ones own acts, or
in having failed to exercise due care in the selection and
control of ones agents or servants, or in the control of
persons who, by reasons of their status, occupy a position of dependency with respect to the person made
CHAPTER 3
NATURE OF LIABILITY
39
40
CHAPTER 3
NATURE OF LIABILITY
der, or over 9 but under 15 years of age who acted without discernment; and, with regard to their children over
9 but under 15 years of age who acted with discernment, or 15 years or over but under 21 years of age, such
primary liability shall be imposed pursuant to Article
2180 of the Civil Code. Under said Article 2180, the enforcement of such liability shall be effected against the
father and, in case of his death or incapacity, the mother.
This was amplified by the Child and Youth Welfare Code
which provides that the same shall devolve upon the
father and, in case of his death or incapacity, upon the
mother or, in case of her death or incapacity, upon the
guardian, but the liability may also be voluntarily assumed by a relative or family friend of the youthful offender (Libi, et al. vs. Intermediate Appellate Court, G.R.
No. 70890, September 18, 1992).
13. However, under the Family Code, this civil
liability is now without such alternative qualification,
the responsibility of the parents and those who exercise
parental authority over the minor offender. For civil liability arising from quasi-delicts committed by minors,
the same rules shall apply in accordance with Articles
2180 and 2182 of the Civil Code, as so modified. (Libi, et
al. vs. Intermediate Appellate Court, supra).
14. Thus, parents and other persons exercising
parental authority shall be civilly liable for the injuries
and damages caused by the acts or omissions of their
unemancipated children living in their company and under their parental authority subject to the appropriate
defenses provided by law. [2180(2)a and (4)a] (Art. 221,
Family Code of the Philippines).
15. After the effectivity of the Family Code, Republic Act 6809 was passed lowering the age of majority
from twenty-one to eighteen. Thus, parental authority
now ends when the child reaches the age of 18 instead
of 21. But even if the age of majority has been lowered to
eighteen, the vicarious liability of parents over children
living in their company extends until these children reach
the age of 21. This is the import of the provision of Republic Act 6809 which states that [u]nless otherwise
provided, majority commences at the age of eighteen
41
42
CHAPTER 3
NATURE OF LIABILITY
43
44
or on the occasion of their functions, while the fifth paragraph encompasses negligent acts of employees acting
within the scope of their assigned task. The latter is an
expansion of the former in both employer coverage and
acts included. Negligent acts of employees, whether or
not the employer is engaged in a business or industry,
are covered so long as they were acting within the scope
of their assigned task, even though committed neither
in the service of the branches nor on the occasion of
their functions. For, admittedly, employees oftentimes
wear different hats. They perform functions which are
beyond their office, title or designation but which, nevertheless, are still within the call of duty (Castilex Industrial Corp. vs. Vasquez, et al., G.R. No. 132266, December
21, 1999).
22. Our Supreme Court has applied the fourth
paragraph to cases where the employer was engaged in
a business or industry such as truck operators (Lanuzo v.
Ping, 100 SCRA 205, 209-210 [1980]; Layugan v. Intermediate Appellate Court, 167 SCRA 363, 377 [1988]; and banks
(Pacific Banking Corporation v. Court of Appeals, 173 SCRA
102, 117 [1989]; Go v. Intermediate Appellate Court, 197
SCRA 22, 31 [1991]).
23. Under the fifth paragraph of Article 2180,
whether or not engaged in any business or industry, an
employer is liable for the torts committed by employees
within the scope of his assigned tasks. But it is necessary
to establish the employer-employee relationship.1 Once
this is done, the plaintiff must show, to hold the employer liable, that the employee was acting within the
scope of his assigned task when the tort complained of
was committed in order to make him liable (Martin v.
Court of Appeals, 205 SCRA 591 [1992]; Metro Manila Transit
1
In determining the existence of an employer-employee relationship, the elements that are generally considered are the following:
(a) the selection and engagement of the employee; (b) the payment of
wages; (c) the power of dismissal; and (d) the employers power to
control the employee with respect to the means and methods by which
the work is to be accomplished. It is the so-called control test that is
the most important element (Investment Planning Corp. of the Phils. vs.
The Social Security System, 21 SCRA 924)
CHAPTER 3
NATURE OF LIABILITY
45
46
of duty to passengers, is the result of the formers confiding in the servants hands the performance of his contract to safely transport the passenger, with the utmost
care prescribed by law; and (3) as between the carrier
and the passenger, the former must bear the risk of
wrongful acts or negligence of the carriers employees
against passengers, since it, and not the passengers, has
power to select and remove them (Maranan vs. Perez, et
al., G.R. No. L-22272, June 26, 1967 citing Texas Midland
R.R. vs. Monroe 110 Tex 97, 216 S.W. 388, 380, 390; and
Haver vs. Central Railroad Co., 43 L.R.A. 84, 85.)
Thus, it is clear from the above Civil Code provision that common carriers cannot escape liability for the
death of or injuries to passengers through the negligence
and willful acts of the formers employees, although such
employees may have acted beyond the scope of their
authority or in violation of the orders . . . (Marchan vs.
Mendoza, et al., G.R. No. L-24471, August 30, 1968).
24. The rationale for the rule on vicarious liability in quasi-delict has been adumbrated thus: what has
emerged as the modern justification for vicarious liability is a rule of policy, deliberate allocation of a risk. The
losses caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the
employers enterprise, are placed upon the enterprise
itself, as a required cost of doing business. They are
placed upon the employer because, having engaged in
an enterprise, which will on the basis of all past experience involve harm to others through the tort of employees, and sought to profit by it, it is just that he, rather
than the innocent injured plaintiff, should bear them;
and because he is better able to absorb them, and to
distribute them, through prices, rates or liability insurance, to the public, and so to shift them to society, to the
community at large. Added to this is the makeweight
argument that an employer who is held strictly liable is
under the greatest incentive to be careful in the selection, instruction and supervision of his servants, and to
take every precaution to see that the enterprise is conducted safely (Baliwag Transit vs. Court of Appeals, G.R.
No. 116110, May 15, 1996).
CHAPTER 3
NATURE OF LIABILITY
25. In Campo vs. Camarote, the basis of the presumption of negligence was explained in this wise: The
reason for the law is obvious. It is indeed difficult for
any person injured by the carelessness of a driver to
prove the negligence or lack of due diligence of the owner
of the vehicle in the choice of the driver. Were we to
require the injured party to prove the owners lack of
diligence, the right will in many cases prove illusory, as
seldom does a person in the community, especially in
the cities, have the opportunity to observe the conduct
of all possible car owners therein. So the law imposes
the burden of proof of innocence on the vehicle owner.
If the driver is negligent and causes damage, the law
presumes that the owner was negligent and imposes
upon him the burden of proving the contrary (MMTC
vs. Court of Appeals, et al. G.R. No. 116617 & 126395, November 16, 1998). The responsibility is not based, as in
the English Common Law, upon the principle of respondent superior if it were, the master would be liable in
every case and unconditionally. The liability is based on
Spanish law which imposes upon all persons who by
their fault or negligence, do injury to another, the obligation of making good the damage caused (cf., Cangco
vs. Manila Railroad Co., supra).
26. Article 2180 provides for the solidary liability of an employer for the quasi-delict committed by an
employee. The responsibility of employers for the negligence of their employees in the performance of their
duties is primary and, therefore, the injured party may
recover from the employers directly, regardless of the
solvency of their employees (Victory Liner vs. Heirs of
Malecdan, G.R. No. 154278, December 27, 2002).
27. Before an employer may be held liable for
the negligence of his employee, the act or omission which
caused damage must have occurred while an employee
was in the actual performance of his assigned tasks or
duties (Francis High School vs. Court of Appeals, 194 SCRA
341).
28. In defining an employers liability for the acts
done within the scope of the employees assigned tasks,
the Supreme Court has held that this includes any act
47
48
CHAPTER 3
NATURE OF LIABILITY
49
50
CHAPTER 3
NATURE OF LIABILITY
51
52
CHAPTER 3
NATURE OF LIABILITY
53
54
CHAPTER 3
NATURE OF LIABILITY
55
56
CHAPTER 3
NATURE OF LIABILITY
57
58
CHAPTER 3
NATURE OF LIABILITY
59
60
Vicarious
liability of
owner of
vehicle
Vicarious
liability of
State
CHAPTER 3
NATURE OF LIABILITY
61
62
CHAPTER 3
NATURE OF LIABILITY
63
64
CHAPTER 3
NATURE OF LIABILITY
65
66
CHAPTER 3
NATURE OF LIABILITY
67
68
CHAPTER 3
NATURE OF LIABILITY
69
70
CHAPTER 3
NATURE OF LIABILITY
71
84. Also, the school may be held liable in its capacity as employer. Hence, the negligent act of a professor who fails to observe the rules of the school, for instance by not promptly submitting a students grade, is
not only imputable to the professor but is an act of the
school, being his employer (University of the East vs. Jader,
G.R. No. 132344, February 17, 2000).
85. The proprietor of a building or structure is Proprietor of
responsible for the damages resulting from its total or building or
partial collapse, if it should be due to the lack of neces- structure
sary repairs. Proprietors shall also be responsible for
damages caused: (1) By the explosion of machinery which
has not been taken care of with due diligence, and the
inflammation of explosive substances which have not
been kept in a safe and adequate place; (2) By excessive
smoke, which may be harmful to persons or property;
(3) By the falling of trees situated at or near highways or
lanes, if not caused by force majeure; (4) By emanations
from tubes, canals, sewers or deposits of infectious matter, constructed without precautions suitable to the place.
If damage referred to in the two preceding articles should
be the result of any defect in the construction mentioned
in Article 1723, the third person suffering damages may
proceed only against the engineer or architect or contractor in accordance with said article, within the period
therein fixed. (Articles 2190-2192, NCC. See also De Roy,
et al. vs. Court of Appeals, et al., G.R. No. L-80718, January
29, 1988).
72
CHAPTER 4
DEFENSES IN AN ACTION FOR
QUASI-DELICT
Plaintiffs
own negligence
1.
When the plaintiffs own negligence was the
immediate and proximate cause of his injury, he cannot
recover damages (Art. 2179, NCC).
2.
Thus, in a case where petitioners failure to
examine his bank statements appears as the proximate
cause of his own damage and the bank was not shown
to be remiss in its duty of sending monthly bank statements to the depositor, the Supreme Court upheld the
dismissal of the case. It noted that any error or discrepancy in the entries therein could be brought to the banks
attention at the earliest opportunity. But, the depositor
failed to examine these bank statements not because he
was prevented by some cause in not doing so, but because he did not pay sufficient attention to the matter.
Had he done so, he could have been alerted to any
anomaly committed against him. In other words, the
depositor had sufficient opportunity to prevent or detect any misappropriation by his secretary had he only
reviewed the status of his accounts based on the bank
statements sent to him regularly. In view of Article 2179
of the New Civil Code, when the plaintiffs own negligence was the immediate and proximate cause of his
injury, no recovery could be had for damages (Ilusorio
vs. Court of Appeals, et al., G.R. No. 139130, November 27,
2002).
3.
When the immediate cause of an accident
resulting in an injury is the plaintiffs own act, which
contributed to the principal occurrence as one of its determining factors, he can not recover damages for the
injury.
72
CHAPTER 4
DEFENSES IN AN ACTION FOR QUASI-DELICT
73
Theory of
implied
invitation to
visit the
premises of
another
74
because the child has entered upon his premises without his express permission he is a trespasser to whom
the owner owes no duty or obligation whatever. The
owners failure to take reasonable precautions to prevent the child from entering premises at a place where
he knows or ought to know that children are accustomed
to roam about or to which their childish instincts and
impulses are likely to attract them is at least equivalent
to an implied license to enter, and where the child does
not enter under such conditions the owners failure to
make reasonable precaution to guard the child against
the injury from unknown or unseen dangers, placed
upon such premises by the owner, is clearly a breach of
duty, a negligent omission, for which he may and should
be held responsible, if the child is actually injured, without other fault on its part than that it had entered on the
premises of a stranger without his express invitation or
permission. To hold otherwise would be expose to all
the children in the community to unknown perils and
unnecessary danger at the whim of the owners or occupants of land upon which they might naturally and reasonably be expected to enter. This conclusion is founded
on reason, justice, and necessity, and neither the contention that a man has a right to do what he will with his
own property of that children should be kept under the
care of the parents or guardian, so as to prevent their
entering on the premises of others is of sufficient weight
to put it in doubt (Taylor vs. Manila Electric, supra).
Doctrine of
attractive
nuisance
6.
Also, one who maintains on his premises dangerous instrumentalities or appliances of a character
likely to attract children in play, and who fails to exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable to a child of tender
years who is injured thereby, even if the child is technically a trespasser in the premises. The attractive nuisance doctrine, however, is generally not applicable to
bodies of water, artificial as well as natural, in the absence of some unusual condition or artificial feature other
than the mere water and its location (Hidalgo Enterprises,
Inc. vs. Balandan, et al., G.R. No. L-3422, June 13, 1952).
7.
The doctrine of attractive nuisance has been
based on various theories, such as the theory of implied
CHAPTER 4
DEFENSES IN AN ACTION FOR QUASI-DELICT
75
invitation, reasonable anticipation, or that the instrumentality or condition constitutes a trap of pitfall (65 CJS
812-813).
8.
An excavation is an attractive nuisance.
Where the children, driven by their playful and adventurous instincts and not knowing the risk they were facing, jumped into the hole while the other one jumped on
the stone, the school teacher who allowed this to happen is guilty of negligence (see Ylarde, et al. vs. Aquino, et
al., G.R. No. L-33722, July 29, 1988).
9.
Also, under the principle of volenti non fit in- Assumption
juria neques dolus, one who voluntarily assumes the risk of risk
may not later on ask for damages (cf., Menchavez, et al.
vs. Teves, Jr., G.R. No. 153201, January 26, 2005).
10. The doctrine of volenti non fit injuria (to which
a person assents is not esteemed in law as injury) refers
to self-inflicted injury or to the consent to injury which
precludes the recovery of damages by one who has
knowingly and voluntarily exposed himself to danger,
even if he is not negligent in doing so (Nikko Hotel Manila Garden, et al. vs. Reyes, G.R. No. 154259, February 28,
2005).
11. Thus, considering the nature of the task of
emptying a septic tank especially one which has not been
cleaned for years, an ordinarily prudent person should
undoubtedly be aware of the attendant risks, more so
with one who is an old hand in this kind of service, who
is presumed to know the hazards of the job. His failure,
therefore, and that of his men to take precautionary measures for their safety was the proximate cause of the
accident. In Culion Ice, Fish and Elect. Co., v. Phil. Motors Corporation (55 Phil. 129, 133), it was held that when
a person holds himself out as being competent to do
things requiring professional skill, he will be held liable
for negligence if he fails to exhibit the care and skill of
one ordinarily skilled in the particular work which he
attempts to do (Fernando, et al. vs. Court of Appeals, G.R.
No. 92087, May 8, 1992).
12. Also, where the animal was in the custody
and under the control of the caretaker, who was paid for
76
CHAPTER 4
DEFENSES IN AN ACTION FOR QUASI-DELICT
1
Referring to the case where the doctrine was first given
expression in the United States.
77
78
harm and fails to do so is chargeable with the consequences, without reference to the prior negligence of the
other party. (Picart vs. Smith, 37 Phil., 809).
17. The law is that the person who has the last
fair chance to avoid the impending harm and fails to do
so is chargeable with the consequences. Last clear chance
is a doctrine in the law of torts which states that the
contributory negligence of the party injured will not defeat the claim for damages if it is shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the negligence
of the injured party. In such cases, the person who had
the last clear chance to avoid the mishap is considered
in law solely responsible for the consequences thereof
(cf., McKee vs. Intermediate Appellate Court, G.R. No. 68102,
July 16, 1992).
18. The doctrine of last clear chance, in essence,
is to the effect that where both parties are negligent, but
the negligent act of one is appreciably later in time than
that of the other, or when it is impossible to determine
whose fault or negligence should be attributed to the
incident, the one who had the last clear opportunity to
avoid the impending harm and failed to do so is chargeable with the consequences thereof (see Picart vs. Smith,
37 Phil. 809).
Stated differently, the rule would also mean that
an antecedent negligence of a person does not preclude
the recovery of damages for the supervening negligence
of, or bar a defense against liability sought by, another if
the latter, who had the last fair chance, could have
avoided the impending harm by the exercise of due diligence (LBC Air Cargo et al. vs. Court of Appeals, et al., G.R.
No. 101683, February 23, 1995 citing Pantranco North Express, Inc. vs. Baesa, 179 SCRA 384; Glan Peoples Lumber
and Hardware vs. Intermediate Appellate Court, 173 SCRA
464).
19. The doctrine of last clear chance applies only
in a situation where the defendant, having the last fair
chance to avoid the impending harm and failed to do
so, becomes liable for all the consequences of the acci-
CHAPTER 4
DEFENSES IN AN ACTION FOR QUASI-DELICT
dent notwithstanding the prior negligence of the plaintiff. In order that the doctrine of last clear chance may be
applied, it must be shown that the person who allegedly
had the last opportunity to avert the accident was aware
of the existence of the peril or with exercise of due care
should have been aware of it. Thus, it has no application
to a case where a person is to act instantaneously, and if
the injury cannot be avoided by using all means available after the peril is or should have been discovered
(Pantranco North Express, Inc. vs. Baesa, et al., G.R. No.
79050-51, November 14, 1989).
20. It also has no application in a case of culpa
contractual, where neither the contributory negligence of
the plaintiff nor his last clear chance to avoid the loss,
would exonerate the defendant from liability (Consolidated Bank and Trust Corp. vs. Court of Appeals, et al., G.R.
No. 138569, September 11, 2003). The common law notion
of last clear chance permitted courts to grant recovery to
a plaintiff who has also been negligent provided that
the defendant had the last clear chance to avoid the casualty and failed to do so. Accordingly, it is difficult to
see what role, if any, the common law of last clear chance
doctrine has to play in a jurisdiction where the common
law concept of contributory negligence as an absolute
bar to recovery by the plaintiff, has itself been rejected,
as it has been in Article 2179 of the Civil Code (Tiu, et al.
vs. Arriesgado, et al., G.R. No. 138060, September 1, 2004).
21. Further, where the claim is founded under
Article 2190 of the Civil Code, the doctrine of last clear
chance, which has been applied to vehicular accidents,
was held to be inapplicable to the case (De Roy, et al. vs.
Court of Appeals, et al., supra).
22. Under the emergency rule, one who suddenly Emergency
finds himself in a place of danger, and is required to act Rule
without time to consider the best means that may be
adopted to avoid the impending danger, is not guilty of
negligence, if he fails to adopt what subsequently and
upon reflection may appear to have been a better method,
unless the emergency in which he finds himself is
brought about by his own negligence (Gan vs. Court of
Appeals, et al., G.R. No. L-44264, September 19, 1988).
79
80
CHAPTER 4
DEFENSES IN AN ACTION FOR QUASI-DELICT
81
82
CHAPTER 4
DEFENSES IN AN ACTION FOR QUASI-DELICT
83
Contributory
negligence
distinguished
from the
doctrine of
last clear
chance
84
analogy, conclusively presumed to be incapable of negligence; and that the presumption of lack of discernment or incapacity for negligence in the case of a child
over nine but under fifteen years of age is a rebuttable
one, under our law. The rule, therefore, is that a child
under nine years of age must be conclusively presumed
incapable of contributory negligence as a matter of law.
(Jarco Marketing Corp. vs. Court of Appeals, et al., G.R. No.
129792, December 21, 1999).
36. With the passage of Republic Act 9344, otherwise known as the Juvenile Justice and Welfare Act of
2006, the minimum age of criminal responsibility has
been raised to fifteen. As provided in Section 6 thereof,
a child fifteen (15) years of age or under at the time of
the commission of the offense shall be exempt from criminal liability. However, the child shall be subjected to an
intervention program xxx. A child above fifteen (15) years
but below eighteen (18) years of age shall likewise be
exempt from criminal responsibility and be subjected to
an intervention program, unless he/she has acted with
discernment, in which case, such child shall be subjected
to an appropriate proceedings.
But the law itself provides that the exemption from
criminal liability herein established does not include
exemption from civil liability, which shall be enforced in
accordance with existing laws. Thus, it would seem
that the provisions on quasi-delict are not affected by the
passage of RA 9344.
37. In quasi-delicts, the contributory negligence of
the plaintiff shall reduce the damages that he may recover (PCIB vs. Court of Appeals, et al., G.R. No. 121413,
January 29, 2001). The determination of the mitigation of
the defendants liability varies depending on the circumstances of each case. The Court had sustained a mitigation of 50% in Rakes v. AG & P; 20% in Phoenix Construction, Inc. v. Intermediate Appellate Court; and LBC
Air Cargo, Inc. v. Court of Appeals; and 40% in Bank of
the Philippine Islands v. Court of Appeals and Philippine Bank of Commerce v. Court of Appeals. Thus, in a
case where one has imbibed one or two bottles of beer
and was not wearing a protective helmet, the Supreme
CHAPTER 4
DEFENSES IN AN ACTION FOR QUASI-DELICT
85
86
CHAPTER 5
ENFORCEMENT OF LIABILITY
Available
remedies
1.
In cases of negligence, the injured party or
his heirs has the choice between an action to enforce the
civil liability arising from crime under Article 100 of the
Revised Penal Code and an action for quasi-delict under
Article 2176-2194 of the Civil Code. He may file either
action, or both, albeit with the caveat against double
recovery for the same act or omission.
2.
An act or omission causing damage to another may give rise to two separate civil liabilities on the
part of the offender, i.e., (1) civil liability ex delicto, under
Article 100 of the Revised Penal Code; and (2) independent civil liabilities, such as those (a) not arising from an
act or omission complained of as a felony, e.g., culpa
contractual or obligations arising from law under Article
31 of the Civil Code, intentional torts under Articles 32
and 34, and culpa aquiliana under Article 2176 of the Civil
Code; or (b) where the injured party is granted a right to
file an action independent and distinct from the criminal action under Article 33 of the Civil Code. Either of
these liabilities may be enforced against the offender subject to the caveat under Article 2177 of the Civil Code
that the plaintiff cannot recover damages twice for the
same act or omission of the defendant and the similar
proscription against double recovery under the Rules
above-quoted (Santos et al. vs. Pizardo, et al., G.R. No.
151452, July 29, 2005).
3.
Section 2, Rule 2, of the 1997 Rules of Civil
Procedure defines cause of action as the act or omission by which a party violates the right of another. Such
act or omission gives rise to an obligation which may
come from law, contracts, quasi contracts, delicts or quasi86
CHAPTER 5
ENFORCEMENT OF LIABILITY
87
88
CHAPTER 5
ENFORCEMENT OF LIABILITY
89
90
fore any of these independent civil actions can be instituted and thereafter have a continuous determination
apart from or simultaneous with the criminal action.
10. Then came the changes in the Revised Rules
on Criminal Procedure pertaining to independent civil
actions which became effective on December 1, 2000.
Rule 111, Section 3 now reads: In the cases provided in Articles 32, 33, 34 and 2176 of the Civil Code of
the Philippines, the independent civil action may be
brought by the offended party. It shall proceed independently of the criminal action and shall require only a
preponderance of evidence. In no case, however, may
the offended party recover damages twice for the same
act or omission charged in the criminal action. Under
the present rule, only the civil liability arising from the
offense charged is deemed instituted with the criminal
action unless the offended party waives the civil action,
reserves his right to institute it separately, or institutes
the civil action prior to the criminal action.
11. Expounding on the new provision, the Supreme Court held that there is no more need for a reservation of the right to file the independent civil actions
under Articles 32, 33, 34 and 2176 of the Civil Code of
the Philippines. The reservation and waiver referred to
refers only to the civil action for the recovery of the civil
liability arising from the offense charged. This does not
include recovery of civil liability under Articles 32, 33,
34 and 2176 of the Civil Code of the Philippines arising
from the same act or omission which may be prosecuted
separately even without a reservation. (DMPI Employees Credit Cooperative vs. Hon. Velez, G.R. No. 129282,
November 29, 2001).
12. But an independent civil action for the recovery of civil liability, authorized under Articles 32, 33, 34
or 2176 of the Civil Code, filed before the institution of
the criminal case, may be consolidated with the latter,
subject to the condition that no final judgment has been
rendered in the criminal case. If this is permitted, there
is neither rhyme nor reason why, given the existence of
the condition, an independent civil action under any of
the said Articles, but filed after the institution of the
CHAPTER 5
ENFORCEMENT OF LIABILITY
91
92
CHAPTER 5
ENFORCEMENT OF LIABILITY
jointly and severally liable for the whole amount. A payment in full for the damage done, by one of the joint tort
feasors, of course satisfies any claim which might exist
against the others. There can be but one satisfaction. The
release of one of the joint tort feasors by agreement generally operates to discharge all. Of course the court during trial may find that some of the alleged tort feasors
are liable and that others are not liable. The courts may
release some for lack of evidence while condemning others of the alleged tort feasors. And this is true even
though they are charged jointly and severally (cf., Construction Development Corporation of the Philippines vs.
Estrella, et al., G.R. No. 147791, September 8, 2006).
17. The insurer, however, is not to be held
solidarily liable with the insured. In Malayan Insurance
Co., Inc. vs. Court of Appeals, G.R. No. L-36413, September
26, 1988, a case was filed against the insurance company
and against the insured Pantranco, the latter being owner
of the bus negligently driven by its employee. The Supreme Court reversed the finding of the trial court holding the insurance company solidarily liable with
Pantranco. It held: while it is true that where the insurance contract provides for indemnity against liability to
third persons, such third persons can directly sue the
insurer, however, the direct liability of the insurer under
indemnity contracts against third party liability does not
mean that the insurer can be held solidarily liable with
the insured and/or the other parties found at fault. The
liability of the insurer is based on contract; that of the
insured is based on tort. In the context of a solidary
obligation, insurer may be compelled to pay the entire
obligation of P29,013.00, notwithstanding the qualification made by the trial court. But, how can the insurer be
obliged to pay the entire obligation when the amount
stated in its insurance policy for indemnity against third
party liability is only P20,000.00?
18. Actions for damages caused by the tortious
conduct of the defendant survive the death of the latter
(Melgar, et al. vs. Buenviaje, et al., G.R. No. 55750, November 8, 1989).
93
94
CHAPTER 6
STRICT LIABILITY TORTS
Definition and
1.
Until the 19th century, a person whose acrationale
tions cause harm to another was in most situations held
4.
For instance, [t]he possessor of an animal or
whoever may make use of the same is responsible for the
94
CHAPTER 6
STRICT LIABILITY TORTS
95
Manufacturers and
processors of
foodstuffs,
etc.
96
8.
A manufacturer is strictly liable for torts when
an article he places on the market, knowing that it is to
be used without inspection for defect, proves to have a
defect that causes injury to human being. This is also
sometimes referred to as the enterprise liability (Ibid.,
at p. 722).
9.
Although the doctrine has met with rapid and
widespread acceptance, the doctrine relates only to defective and unreasonably dangerous products and does
not make a manufacturer or seller an insurer that no
injury will result from the use of his products nor does
the doctrine mean that such a manufacturer or seller is
liable for any harm to anybody under the circumstances
(Ibid., at p. 734).
10. Under Republic Act 7394 or the Consumer
Act of the Philippines, any Filipino or foreign manufacturer, producer, and any importer, shall be liable for
redress, independently of fault, for damages caused to
consumers by defects resulting from design, manufacture, construction, assembly and erection, formulas and
handling and making up, presentation or packing of their
products, as well as for the insufficient or inadequate
information on the use and hazards thereof (Art. 97).
11. A product is defective when it does not offer
the safety rightfully expected of it, taking relevant circumstances into consideration, including but not limited to: a) presentation of product; b) use and hazards
reasonably expected of it; c) the time it was put into
circulation. A product is not considered defective because another better quality product has been placed in
the market (Ibid.).
12. The tradesman/seller is likewise liable, pursuant to the preceding article when: a) it is not possible
to identify the manufacturer, builder, producer or importer; b) the product is supplied, without clear identification of the manufacturer, producer, builder or importer;
c) he does not adequately preserve perishable goods.
The party making payment to the damaged party may
exercise the right to recover a part of the whole of the
payment made against the other responsible parties, in
CHAPTER 6
STRICT LIABILITY TORTS
97
98
sub-paragraph (a) of the second paragraph of this Article, and replacement of the product is not possible, it
may be replaced by another of a different kind, mark or
model: Provided, That any difference in price may
result thereof shall be supplemented or reimbursed by
the party which caused the damage, without prejudice
to the provisions of the second, third and fourth paragraphs of this Article (Art. 100).
15. Suppliers are jointly liable for imperfections
in the quantity of the product when, in due regard for
variations inherent thereto, their net content is less than
that indicated on the container, packaging, labeling or
advertisement, the consumer having powers to demand,
alternatively, at his own option: a) the proportionate
price; b) the supplementing of weight or measure differential; c) the replacement of the product by another of
the same kind, mark or model, without said imperfections; d) the immediate reimbursement of the amount
paid, with monetary updating without prejudice to losses
and damages, if any (Art. 101).
16. The service supplier is liable for any quality
imperfections that render the services improper for consumption or decrease their value, and for those resulting from inconsistency with the information contained
in the offer or advertisement, the consumer being entitled to demand alternatively at his option: a) the performance of the services, without any additional cost
and when applicable; b) the immediate reimbursement
of the amount paid, with monetary updating without
prejudice to losses and damages, if any; c) a proportionate price reduction. Reperformance of services may be
entrusted to duly qualified third parties, at the suppliers
risk and cost (Art. 102).
17. The druggist is responsible as an absolute
guarantor of what he sells. In a decision which stands
alone, the Supreme Court of Kentucky said: As applicable to the owners of drug stores, or persons engaged
in vending drugs and medicines by retail, the legal
maxim should be reversed. Instead of caveat emptor, it
should be caveat venditor. That is to say, let him be cer-
CHAPTER 6
STRICT LIABILITY TORTS
99
100
approximately resulting from his negligence. If B negligently sells poison under the guise of a beneficial drug
to A, he is liable for the injury done to A. In a case,
which has repeatedly been followed by the United States
Supreme Court, it was said, Pharmacists or apothecaries who compound or sell medicines, if they carelessly
label a poison as a harmless medicine, and send it so
labeled into the market, are liable to all persons who,
without fault on their part, are injured by using it as
such medicine, in consequence of the false label; the rule
being that the liability in such a case arises not out of
any contract or direct privity between the wrong-doer
and the person injured, but out of the duty which the
law imposes on him to avoid acts in their nature dangerous to the lives of others. (Nat. Savings Bank vs.
Ward [1879], 100 U.S., 195, following Thomas vs. Winchester [1852], 2 Seld. [N.Y.] 397.) In view of the tremendous and imminent danger to the public from the careless sale of poisons and medicines, we do not deem it
too rigid a rule to hold that the law penalizes any druggist who shall sell one drug for another whether it be
through negligence or mistake (Ibid.).
Head of the
family
CHAPTER 6
STRICT LIABILITY TORTS
22. In the case of a family consisting of unmarried brothers or sisters, it seems that the head of the
family is one on whom the family depends for lead support.1
1
The term head of the family has been defined by law for tax
purposes to mean an unmarried or legally separated man or woman
with one or both parents, or with one or more brothers or sisters, or
with one or more legitimate, recognized natural or legally adopted
children living with and dependent upon him for their chief support,
where such brothers or sisters or children are not more than twentyone (21) years of age, unmarried and not gainfully employed or where
such children, brothers or sisters, regardless of age are incapable of
self-support because of mental or physical defect. (Section 35, RA
8424)
101
102
CHAPTER 7
SPECIAL TORTS
Definition
1.
The cases referred to in Art. 309 (par. 9, Art.
2219) and in Arts. 21, 26, 27, 28, 29, 30, 32, 34 and 35 on
the chapter on human relations (par. 10, Art. 2219) of
our Civil Code are otherwise referred to as special torts
(Malonzo vs. Galang, et al., G.R. No. L-13851, July 27, 1960;
Quezon City Government et al. vs. Dacara, G.R. No. 150304,
June 15, 2005).
Abuse of
Right
Principle
2.
In Article 19 of the Code, it is provided that
every person must, in the exercise of his rights and in
the performance of his duties, act with justice, give everyone his due and observe honesty and good faith. The
principle of abuse of rights stated in the above article,
departs from the classical theory that he who uses a
right injures no one. The modern tendency is to depart
from the classical and traditional theory, and to grant
indemnity for damages in cases where there is an abuse
of rights, even when the act is not illicit.
3.
Article 19 was intended to expand the concept of torts by granting adequate legal remedy for the
untold number of moral wrongs which is impossible for
human foresight to provide specifically in statutory law.
If mere fault or negligence in ones acts can make him
liable for damages for injury caused thereby, with more
reason should abuse or bad faith make him liable. The
absence of good faith is essential to abuse of right. Good
faith is an honest intention to abstain from taking any
unconscientious advantage of another, even through the
forms or technicalities of the law, together with an absence of all information or belief of fact which would
render the transaction unconscientious. In business relations, it means good faith as understood by men of
102
CHAPTER 7
SPECIAL TORTS
103
104
for specifically in the statutes. (Report of the Code Commission, 39-40. This passage is quoted, except for the
last paragraph, in Tanjanco vs. Court of Appeals, 18
SCRA 994, 996-997 [1966]; the Article 23 referred to is
now Article 21.).
5.
Hence, it is even postulated that together with
Articles 19 and 20 of the Civil Code, Article 21 has greatly
broadened the scope of the law on civil wrongs; it has
become much more supple and adaptable than the
Anglo-American law on torts (Baksh vs. Court of Appeals,
et al., G.R. No. 97336, February 19, 1993).
6.
Article 19 was intended to expand the concept of torts by granting adequate legal remedy for the
untold number of moral wrongs which is impossible for
human foresight to provide specifically in statutory law
[PNB v. CA, 83 SCRA 237 (1978) cited in Sea Commercial
Company v. CA, G.R. No. 122823, November 25, 1999]. In
civilized society, men must be able to assume that others
will do them no intended injury that others will commit no internal aggressions upon them; that their fellowmen, when they act affirmatively will do so with
due care which the ordinary understanding and moral
sense of the community exacts and that those with whom
they deal in the general course of society will act in good
faith. The ultimate thing in the theory of liability is justifiable reliance under conditions of civilized society. (Dean
Roscoe Pound, Introduction to the Philosophy of Law
cited in University of the East vs. Jader, supra).
7.
The elements of an abuse of right under Article 19 are the following: (1) There is a legal right or
duty; (2) which is exercised in bad faith; (3) for the sole
intent of prejudicing or injuring another. Article 20 speaks
of the general sanction for all other provisions of law
which do not especially provide for their own sanction.
Thus, anyone who, whether willfully or negligently, in
the exercise of his legal right or duty, causes damage to
another, shall indemnify his victim for injuries suffered
thereby. Article 21 deals with acts contra bonus mores,
and has the following elements: 1) There is an act which
is legal; 2) but which is contrary to morals, good custom, public order, or public policy; 3) and it is done with
CHAPTER 7
SPECIAL TORTS
intent to injure. Thus, under any of these three (3) provisions of law, an act which causes injury to another may
be made the basis for an award of damages (Albenson
Enterprises Corp. et al. vs. Court of Appeals, et al., G.R. No.
88694, January 11, 1993).
8.
The test of Abuse of Right has been explained
in I Tolentino, pp. 61-62 in this wise [m]odern jurisprudence does not permit acts which, although not unlawful, are anti-social. There is undoubtedly an abuse of
right when it is exercised for the only purpose of prejudicing or injuring another. When the objective of the
actor is illegitimate, the illicit act cannot be concealed
under the guise of exercising a right. The principle does
not permit acts which, without utility or legitimate purpose cause damage to another, because they violate the
concept of social solidarity which considers law as rational and just. Hence, every abnormal exercise of a right,
contrary to its socio-economic purpose, is an abuse that
will give rise to liability. The exercise of a right must be
in accordance with the purpose for which it was established, and must not be excessive or unduly harsh; there
must be no intention to injure another. Ultimately, however, and in practice, courts, in the sound exercise of
their discretion, will have to determine all the facts and
circumstances when the exercise of a right is unjust, or
when there has been an abuse of right.
9.
Malice or bad faith is at the core of Article 19.
Good faith is presumed and he who alleges bad faith
has the duty to prove the same. Good faith refers to the
state of the mind which is manifested by the acts of the
individual concerned. It consists of the intention to abstain from taking an unconscionable and unscrupulous
advantage of another. Bad faith does not simply connote bad judgment or simple negligence, dishonest purpose or some moral obliquity and conscious doing of a
wrong, a breach of known duty due to some motives or
interest or ill-will that partakes of the nature of fraud.
Malice connotes ill-will or spite and speaks not in response to duty. It implies an intention to do ulterior and
unjustifiable harm. Malice is bad faith or bad motive
(DBP vs. Court of Appeals, et al., G.R. No. 137916, December 8, 2004).
105
106
CHAPTER 7
SPECIAL TORTS
107
108
Art. 26
14. The Code Commission explained the inclusion of Article 26 in the Civil Code in this wise: The
present laws, criminal or civil, do not adequately cope
with interferences and vexations mentioned in Article
26. The privacy of ones home is an inviolable right. Yet
the laws in force do not squarely and effectively protect
this right. The acts referred to in No. 2 are multifarious,
and yet many of them are not within the purview of the
law in force. Alienation of the affection of anothers wife
or husband, unless it constituted adultery or concubinage, is not condemned by the law, much as it may shock
society. There are numerous acts, short of criminal unfaithfulness, whereby the husband or the wife breaks
the marital vows, thus causing untold moral suffering
to the other spouse. Why should not these acts be the
subject matter of a civil action for damages? In American law, they are. Again, there is meddling of so-called
friends who poison the mind of one or more members
of the family against the other members. In this manner
many a happy family is broken up or estranged. Why
should not the law try to stop this by creating a civil
action for damages? Of the same nature is that class of
acts specified in No. 3: intriguing to cause another to be
alienated from his friends. No less serious are the acts
mentioned in No. 4: vexing, or humiliating another on
account of his religious beliefs, lowly station in life, place
of birth, physical defect or other personal condition. The
penal laws against defamation and unjust vexation are
glaringly inadequate. Religious freedom does not authorize anyone to heap obloquy and disrepute upon another by reason of the latters religion. Not a few of the
rich people treat the poor with contempt because of the
latters lowly station in life. To a certain extent this is
inevitable, from the nature of the social make-up, but
there ought to be a limit somewhere, even when the
penal laws against defamation and unjust vexation are
not transgressed. In a democracy, such a limit must be
established. The courts will recognize it in each case.
Social equality is not sought by the legal provision under consideration, but due regard for decency and propriety. Place of birth, of physical defect and other personal conditions are too often the pretext of humiliation
cast upon other persons. Such tampering with human
CHAPTER 7
SPECIAL TORTS
109
110
CHAPTER 8
KINDRED TORTS
Medical
malpractice/
Medical
negligence
1.
Another brand of tort that is gaining recognition in this jurisdiction is medical malpractice. This is a
particular form of negligence which consists in the failure of a physician or surgeon to apply to his practice of
medicine that degree of care and skill which is ordinarily employed by the profession generally, under similar conditions, and in like surrounding circumstances.
(Reyes, et al. vs. Sisters of Mercy Hospital, et al., G.R. No.
130547, October 3, 2000). Negligence being the backbone
of the suit, this type of litigation is invariably considered part of tort law.
2.
The relationship between physician and patient is a consensual one wherein the patient knowingly
seeks the assistance of a physician and the physician
knowingly accepts him as patient. The relationship between a physician and patient may result from an express or implied contract, either general or special, and
the rights and liabilities of the parties thereto are governed by the general law of contract. The voluntary acceptance of the physician patient relationship by the affected parties creates a prima facie presumption of contractual relationship between them. The relationship is
not dependent upon payment of fees, for a physician
may accept a patient and thereby incur the consequent
duties although his services are performed gratuitously.
However, the generally accepted rule is that where a job
applicant or employee is examined by a doctor engaged
by the prospective or actual employer, there is no doctor-patient relationship between the physician and the
examinee (cf., 61 Am Jur 2d, pp. 290-292). Where a physician- patient relationship is present, physicians have a
110
CHAPTER 8
KINDRED TORTS
duty to use at least the same level of care that any other
reasonably competent doctor would use to treat a condition under the same circumstances. The breach of these
professional duties of skill and care, or their improper
performance, by a physician surgeon whereby the patient is injured in body or in health, constitutes actionable malpractice. In the event that any injury results to
the patient from want of due care or skill during the
operation, the surgeons may be held answerable in damages for negligence (Garcia-Rueda vs. Pascasio, supra, citing Hoover v. Williamson, 236 Md 250 and Gore v. Board
of Medical Quality, 110 Cal App 3d 184 (1980).
3.
It is a universal rule that a physician or surgeon has the duty to use reasonable care and skill in
diagnosis and treatment. The standard by which the requirement of reasonable skill and care is determined is
the average standard of the profession (61 Am Jur 2d, at
339).
In particular, a doctor has the duty to inform the
patient fully of his condition, and of the results of the
tests made. If the physician discovers, or should know
or discover, that the patients ailment is beyond his
knowledge or technical skill, ability or capacity to treat
with a likelihood of reasonable success, he is also under
duty to disclose that fact to the patient and advise him
of the necessity of other or different treatment. It has
also been recognized that there exists a duty on the part
of the physician to advise his patient to consult a specialist or one qualified in a method of treatment which
the physician is not qualified to give. It is also the settled
rule that one who engages a physician to treat his case
impliedly engages him to attend throughout the illness,
or until his services are dispensed with, but it is recognized that a physician has the right to withdraw from a
case by giving due notice to the patient and affording
him the ample opportunity to secure other medical attendance of his own choice. As corollary to the
physicians right to withdraw from a case upon giving
proper notice, he is also under duty not to abandon the
patient and to continue attendance until all the conditions for his rightful withdrawal are complied with (cf.,
65 Am Jur 2d, pp. 358 to 368).
111
112
4.
As a general rule, [d]octors are protected by
a special rule of law. They are not guarantors of care.
They do not even warrant a good result. They are not
insurers against mishaps or unusual consequences. Furthermore they are not liable for honest mistakes of judgment. . . . (Cruz vs. Court of Appeals, et al., G.R. No.
122445, November 18, 1997, citing THE PHYSICIANS
LIABILITY AND THE LAW ON NEGLIGENCE by
Constantino Nuez, p. 1 citing Louis Nizer, My Life in
Court, New York: Double Day & Co., 1961 in Tolentino,
Jr., MEDICINE and LAW, Proceedings of the Symposium on Current Issues Common to Medicine and Law
U.P. Law Center, 1980).
But in accepting a case, a doctor in effect represents that, having the needed training and skill possessed
by physicians and surgeons practicing in the same field,
he will employ such training, care and skill in the treatment of his patients. He therefore has a duty to use at
least the same level of care that any other reasonably
competent doctor would use to treat a condition under
the same circumstances. It is in this aspect of medical
malpractice that expert testimony is essential to establish not only the standard of care of the profession but
also that the physicians conduct in the treatment and
care falls below such standard. Further, inasmuch as the
causes of the injuries involved in malpractice actions are
determinable only in the light of scientific knowledge, it
has been recognized that expert testimony is usually necessary to support the conclusion as to causation (Id., citing MEDICINE and LAW, supra, p. 25; Willard vs.
Hutson, 1 ALR 3d 1092, 1102 [1963]; Snyder vs. Pantaleo,
122 A. 2d 21, 23 [1956] and American Jurisprudence 2d,
Vol. 61, p. 510).
Elements of
medical
negligence
5.
In order to successfully pursue such a claim,
a patient must prove that a health care provider, in most
cases a physician, either failed to do something which a
reasonably prudent health care provider would have
done, or that he or she did something that a reasonably
prudent provider would not have done; and that failure
or action caused injury to the patient. Hence, there are
four elements involved in medical negligence cases: duty,
CHAPTER 8
KINDRED TORTS
113
114
CHAPTER 8
KINDRED TORTS
115
116
pert testimony is usually necessary to support the conclusion as to causation. (Reyes vs. Sisters of Mercy, supra)
Essentially, it requires two-pronged evidence: evidence
as to the recognized standards of the medical community in the particular kind of case, and a showing that
the physician in question negligently departed from this
standard in his treatment [Garcia-Rueda vs. Pascasio, supra, citing 61 Am Jur 2nd (1972) and Davis v. Virginian
R. Co, 361 US 354].
However, although generally, expert medical testimony is relied upon in malpractice suits to prove that a
physician has done a negligent act or that he has deviated from the standard medical procedure, obvious errors may nonetheless bring about the application of
the doctrine of res ipsa loquitur. In such case, the need for
expert medical testimony is dispensed with because the
injury itself provides the proof of negligence. The reason is that the general rule on the necessity of expert
testimony applies only to such matters clearly within
the domain of medical science, and not to matters that
are within the common knowledge of mankind which
may be testified to by anyone familiar with the facts.
Ordinarily, only physicians and surgeons of skill and
experience are competent to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and care. However, testimony as to
the statements and acts of physicians and surgeons, external appearances, and manifest conditions which are
observable by any one may be given by non-expert witnesses. Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the patient, without
the aid of expert testimony where the court from its fund
of common knowledge can determine the proper standard of care. Where common knowledge and experience teach that a resulting injury would not have occurred to the patient if due care had been exercised, an
inference of negligence may be drawn giving rise to an
application of the doctrine of res ipsa loquitur without
medical evidence, which is ordinarily required to show
not only what occurred but how and why it occurred.
When the doctrine is appropriate, all that the patient
CHAPTER 8
KINDRED TORTS
117
118
in the ICU for a month. She was released from the hospital only four months later or on November 15, 1985.
Since the ill-fated operation, Erlinda remained in comatose condition until she died on August 3, 1999. The
Supreme Court held that [t]he injury incurred by Erlinda
does not normally happen absent any negligence in the
administration of anesthesia and in the use of an endotracheal tube. As was noted in the Decision, the instruments used in the administration of anesthesia, including the endotracheal tube, were all under the exclusive
control of Dr. Gutierrez and Dr. Hosaka. In Voss vs.
Bridwell, which involved a patient who suffered brain
damage due to the wrongful administration of anesthesia, and even before the scheduled mastoid operation
could be performed, the Kansas Supreme Court applied
the doctrine of res ipsa loquitur, reasoning that the injury
to the patient therein was one which does not ordinarily
take place in the absence of negligence in the administration of an anesthetic, and in the use and employment
of an endotracheal tube. The court went on to say that
[o]rdinarily a person being put under anesthesia is not
rendered decerebrate as a consequence of administering
such anesthesia in the absence of negligence. Upon these
facts and under these circumstances, a layman would be
able to say, as a matter of common knowledge and observation, that the consequences of professional treatment were not as such as would ordinarily have followed if due care had been exercised. (Ramos, et al. vs.
Court of Appeals, et al., G.R. No. 124354, April 11, 2002).
Liability of
hospitals
CHAPTER 8
KINDRED TORTS
119
120
CHAPTER 8
KINDRED TORTS
121
same is initiated by the department to whom the consultant concerned belongs and filed with the Ethics Committee consisting of the department specialty heads. The
medical director/hospital administrator merely acts as
ex-officio member of said committee. Neither is there
any showing that it is DLSMC which pays any of its
consultants for medical services rendered by the latter
to their respective patients. Moreover, the contract between the consultant in respondent hospital and his patient is separate and distinct from the contract between
respondent hospital and said patient. The first has for
its object the rendition of medical services by the consultant to the patient, while the second concerns the provision by the hospital of facilities and services by its
staff such as nurses and laboratory personnel necessary
for the proper treatment of the patient. Further, no evidence was adduced to show that the injury suffered by
petitioner Erlinda was due to a failure on the part of
respondent DLSMC to provide for hospital facilities and
staff necessary for her treatment. For these reasons, the
finding of liability on the part of DLSMC for the injury
suffered by Erlinda was reversed. (Ibid.).
14. As regards special or limited practitioners, the Special or
rules and standards governing the duty and liability of limited
physicians and surgeons in the performance of profes- practitioners
sional services are applicable to practitioners of the kindred branches of the healing art, such as chiropodists,
chiropractors, Christian science healers, dentists, practitioners of naturopathy, nurses, optometrists and opticians and operators of X-ray machines.
15. Aside from primary liability of physicians and
surgeons for their own negligent acts, the weight of authorities in common law countries also hold them vicariously liable for the acts of their assistants. This proceeds from the premise that a physician or surgeon must
exercise due care in selecting his assistants.
While courts in the United States are divided as to
the liability of an operating surgeon, for instance, for the
negligence of the assisting nurses, it seems that the prevailing view is to consider whether the nurse is the employee of the hospital or the borrowed assistant of the
122
surgeon. As stated in 61 Am Jur 2d, page 438, an increasing number of courts, although not abandoning the socalled Captain of the Ship rule under which the surgeon is considered to be in command in the operating
room, have recognized that many acts performed by a
nurse in the operating room are such as do not require
medical skill and judgment, and do not necessitate control and supervision by surgeon. Thus, for acts of nurses
belonging to these categories and which are not considered medical, the nurse is considered to have acted as
servant of the hospital, and that the surgeon may not be
held liable for the nurses negligence therein.
Legal malpractice
Liability of
17. Under Section 31 of the Corporation Code of
directors and the Philippines, directors or trustees who are guilty of
trustees of
gross negligence or bad faith in directing the affairs of
corporation
the corporation or acquire any personal or pecuniary
CHAPTER 8
KINDRED TORTS
123
124
DAMAGES
CHAPTER 1
INTRODUCTORY CONCEPTS
Damages,
defined
1.
In legal contemplation, the term damages
is the sum of money which the law awards or imposes
as pecuniary compensation, recompense or satisfaction
for an injury done (25 CJS 613).
Distinguished
2.
Although the words damages, damage
from other
and injury are sometimes used synonymously, there
concepts
is a material distinction between damages and injury.
CHAPTER 1
INTRODUCTORY CONCEPTS
125
proximate cause of the injury (BPI Express Card Corporation vs. Court of Appeals, G.R. No. 120639, September 25,
1998).
3.
If damage results from a persons exercising
his legal rights, it is damnum absque injuria1 (Auyong Hian
vs. CTA, 59 SCRA 110).
4.
The fundamental principle or theory on which Rationale
an award of damages is based is just compensation. It is
indemnity or reparation for the loss or injury sustained
by the injured party so that he may be made whole and
restored as nearly as possible to the position or condition he was in prior to the injury (25 CJS 626).
5.
Damages to property or person are either gen- General and
eral or special. General damages are such as naturally special
and necessarily result from the wrong. They are such as damages
might accrue to any person similarly situated. Special
damages are such as do in fact accrue to the particular
individual by reason of the particular circumstances of
the case. Special damages are such as have proximately
resulted but do not always immediately result from the
breach and will not therefore be implied by law (cf., 25
CJS 620).
6.
The difference becomes significant in the area
of pleading. General damages need not be specially
pleaded and may be embraced in the general plea for
such other relief as may be deemed just and equitable
under the premises. But special damages must be specifically prayed for. If any special damage has also been
suffered, it should be set out on the pleadings (Jimenez
vs. Reyes, G.R. No. 8227, March 9, 1914).
7.
In an action for breach of contract of carriage
where by reason thereof, the passengers died, damages
for loss of earning capacity, separately from the indemnities by reason of death, may be considered included in
the prayer for actual damages and for other just and
126
127
CHAPTER 2
ACTUAL DAMAGES
1.
Actual and compensatory damages are those Actual
recoverable because of pecuniary loss in business, damages
trade, property, profession, job or occupation (Albenson defined
Enterprises Corp. et al. vs. Court of Appeals, et al., G.R. No.
88694, January 11, 1993).
Under both the Spanish Civil Code and American
law of damages, actual damages for a negligent act or
omission are confined to those which were foreseen or
might have been foreseen, or those which were the
natural and probable consequences or the direct and
immediate consequences of the act or omission. Actual
damages, under the American system, include pecuniary recompense for pain and suffering, injured feelings,
and the like. Actual damages in the Philippines do not
extend to such incidents. Aside from this exception, actual damages, in this jurisdiction, in the sense that they
mean just compensation for the loss suffered, are practically synonymous with actual damages under the American system (Algarra vs. Sandejas, G.R. No. 8385, March 24,
1914).
2.
Except as provided by law or by stipulation,
one is entitled to an adequate compensation only for
such pecuniary loss suffered by him as he has duly
proved. Such compensation is referred to as actual or
compensatory damages (Art. 2199, NCC). Both actual
damages and consequential damages are dealt with
in the Civil Code under the same Chapter 2 of Title XVIII
and the two terms are used as equivalent of one another
(M.D. Transit & Taxi Co., Inc. vs. Court of Appeals, et al.,
G.R. No. L-23882, February 17, 1968).
127
128
Requirements
3.
In determining actual damages, the court can
for the grant not rely on speculation, conjecture or guess works as to
of actual
the amount. Without the actual proof of loss, the award
damages
of actual damages becomes erroneous (Guilatco vs. City
CHAPTER 2
ACTUAL DAMAGES
129
130
8.
There are two kinds of actual or compensatory damages: one is the loss of what a person already
possesses, and the other is the failure to receive as a
benefit that which would have pertained to him . . . In
the latter instance, the familiar rule is that damages consisting of unrealized profits, frequently referred as
ganacias frustradas or lucrum cessans, are not to be
granted on the basis of mere speculation, conjecture, or
surmise, but rather by reference to some reasonably definite standard such as market value, established experience, or direct inference from known circumstances [Producers Bank of the Philippines vs. Court of Appeals, 365 SCRA
326 (2001)].
In contracts
and quasicontracts
9.
In contracts and quasi-contracts,1 the damages
which may be awarded are dependent on whether the
obligor acted with good faith or otherwise.
10. In case of good faith, the damages recoverable are those which are the natural and probable consequences of the breach of the obligation and which the
parties have foreseen or could have reasonably foreseen
at the time of the constitution of the obligation. If the
obligor acted with fraud, bad faith, malice, or wanton
attitude, he shall be responsible for all damages which
may be reasonably attributed to the non-performance of
the obligation (Art. 2201, NCC).
11. It is true that under Article 2206 of the Civil
Code of the Philippines, only deaths caused by a crime
as quasi delict are entitled to actual and compensatory
damages without the need of proof of the said damages.
However, the Civil Code, in Article 1764 thereof, expressly makes Article 2206 applicable to the death of a
passenger caused by the breach of contract by a common carrier. Accordingly, a common carrier is liable for
1
The Civil Code does not confine itself exclusively to the quasicontracts enumerated from Articles 2144 to 2175 but is open to the
possibility that, absent a pre-existing relationship, there being neither
crime nor quasi-delict, a quasi-contractual relation may be forced upon
the parties to avoid a case of unjust enrichment (PNB vs. Court of
Appeals, et al., G.R. No. 97995, January 21, 1993).
CHAPTER 2
ACTUAL DAMAGES
131
132
CHAPTER 2
ACTUAL DAMAGES
133
134
CHAPTER 2
ACTUAL DAMAGES
By way of exception, testimonial evidence may suffice if the victim was either (1) self-employed, earning
less than the minimum wage under current labor laws,
and judicial notice may be taken of the fact that in the
victims line of work, no documentary evidence is available; or (2) employed as a daily-wage worker earning
less than the minimum wage under current labor laws.
(People vs. Duban, G.R. No. 141217, 26 September 2003;
People vs. Mallari, G.R. No. 145993, 17 June 2003; People
vs. Caraig, G.R. Nos. 116224-27, 28 March 2003).
23. Also, temperate damages2 may be awarded
in lieu of actual damages for loss of earning capacity
where the income of the victim was not sufficiently
proven (Victory Liner vs. Gammad, et al., G.R. No. 159636,
November 25, 2004).
24. The amount of damages for death caused by
a crime or quasi-delict shall be at least three thousand
pesos, even though there may have been mitigating circumstances. In addition: (1) The defendant shall be liable for the loss of the earning capacity of the deceased,
and the indemnity shall be paid to the heirs of the latter;
such indemnity shall in every case be assessed and
awarded by the court, unless the deceased on account of
permanent physical disability not caused by the defendant, had no earning capacity at the time of his death;
(2) If the deceased was obliged to give support according to the provisions of Article 291, the recipient who is
not an heir called to the decedents inheritance by the
law of testate or intestate succession, may demand support from the person causing the death, for a period not
exceeding five years, the exact duration to be fixed by
the court (Article 2206).
25. Civil indemnity in the amount of P50,000.00
is automatically granted to the heirs of the victim without need of any evidence other than the fact of the commission of the crime. (People vs. Obello, G.R. No. 108772,
January 14, 1998).
135
136
28. In Eastern Shipping Lines, Inc. vs. Court of Appeals, 234 SCRA 78 (1994), Supreme Court set a controlling guideline on interests as an aspect or component of
actual damages, in this wise:
I.
When an obligation, regardless of its source,
i.e., law, contracts, quasi-contracts, delicts or quasi-delicts
is breached, the contravenor can be held liable for damages. The provisions under Title XVIII on Damages of
the Civil Code govern in determining the measure of
recoverable damages.
II. With regard particularly to an award of interest in the concept of actual and compensatory damages,
CHAPTER 2
ACTUAL DAMAGES
137
138
CHAPTER 2
ACTUAL DAMAGES
139
140
tion expenses. They must be clearly explained and justified by the trial court in the body of its decision for the
general rule is that attorneys fees and expenses of litigation cannot be recovered in the absence of stipulation
(Sps. Samatra vs. De Parinas, G.R. No. 142958, April 24,
2002). The award of attorneys fee is the exception rather
than the general rule. As such, it is necessary for the
court to make findings of facts and law that would bring
the case within the exception and justify the grant of
such award (Citibank, N.A. vs. Sps. Cabamongan, et al.,
G.R. No. 146918, May 2, 2006).
37. Reasonable attorneys fees constitute a proper
element of damages in an action based upon wrongful
attachment. . . . the more generally prevailing view is
that one against whom an attachment has been wrongful sued out is entitled to recover reasonable counsel
fees incurred or expended in defending against such attachment (7 C.J.S., 372, cited in Francisco, supra, p. 170).
And in cases mentioned in Article 2208 (Civil Code)
attorneys fees constitute a part of actual damages (PCIB
vs. Intermediate Appellate Court, G.R. No. 73610, April 19,
1991 citing Fores vs. Miranda, L-12103, March 4, 1959).
In all cases, the attorneys fees and expenses of litigation must be reasonable (Art. 2208, NCC, last par.).
38. Article III of the Labor Code and Rule VIII,
Sec. II, Book III of the Omnibus Rules Implementing the
Labor Code, provide that [i] n cases of unlawful withholding of wages the culpable party may be assessed
attorneys fees equivalent to ten percent of the amount
of wages recovered.
Subrogatory
right of
insurer
141
CHAPTER 3
MORAL DAMAGES
1.
Moral damages include physical suffering, Nature and
mental anguish, fright, serious anxiety, besmirched repu- concept
tation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary
computation, moral damages may be recovered if they
are the proximate result of the defendants wrongful act
or omission (Art. 2217, NCC).
2.
Moral damages are awarded to compensate
one for manifold injuries such as physical suffering, mental anguish, serious, anxiety, besmirched reputation,
wounded feelings and social humiliation. These damages must be understood to be in the concept of grants,
not punitive or corrective in nature, calculated to compensate the claimant for the injury suffered (del Mundo
vs. Court of Appeals, et al., G.R. No. 104576, January 20,
1995).
3.
In the case of moral damages, recovery is
more an exception rather than the rule. Moral damages
are not punitive in nature but are designed to compensate and alleviate the physical suffering, mental anguish,
fright, serious anxiety, besmirched reputation, wounded
feelings, moral shock, social humiliation, and similar
harm unjustly caused to a person. In order that an award
of moral damages can be aptly justified, the claimant
must be able to satisfactorily prove that he has suffered
such damages and that the injury causing it has sprung
from any of the cases listed in Articles 2219 and 2220 of
the Civil Code. Then, too, the damages must be shown
to be the proximate result of a wrongful act or omission.
The claimant must establish the factual basis of the damages and its causal tie with the acts of the defendant. In
141
142
7.
In order that moral damages may be awarded,
there must be pleading and proof of moral suffering, mental anguish, fright and the like (Congregation of the Religious of the Virgin Mary vs. Court of Appeals, et al., G.R. No.
126363, June 26, 1998). This is so because moral dam-
CHAPTER 3
MORAL DAMAGES
143
144
that can not be shown with certainty, unlike actual damages, the plaintiff must ascertain, in his estimation, the
sums he wants, and the sums required to determine the
amount of docket and other fees (Gregorio, et al. vs. Angeles, et al., G.R. No. 85847, December 21, 1989).
11. There is no hard and fast rule in the determination of what would be a fair amount of moral damages, since each case must be governed by its own peculiar circumstances (Filinvest Credit Corporation vs. IAC,
166 SCRA 155).
12. In the adjudication of moral damages, the sentimental value of property, real or personal, may be considered (Art. 2218, NCC).
Instances
13. Moral damages may be recovered in the folwhere moral lowing and analogous cases: (1) A criminal offense redamages may sulting in physical injuries; (2) Quasi-delicts causing physibe recovered
cal injuries; (3) Seduction, abduction, rape, or other lascivious acts; (4) Adultery or concubinage; (5) Illegal or
arbitrary detention or arrest; (6) Illegal search; (7) Libel,
slander or any other form of defamation; (8) Malicious
prosecution; (9) Acts mentioned in Article 309; (10) Acts
and actions referred to in Articles 21, 26, 27, 28, 29, 30,
32, 34, and 35 (Art. 2219, NCC).
Seduction
Quasi-delict
15. Article 2219(2) specifically allows moral damages to be recovered for quasi-delicts, provided that the act
or omission caused physical injuries. There can be no
CHAPTER 3
MORAL DAMAGES
145
146
CHAPTER 3
MORAL DAMAGES
147
regardless of the existence of malice in fact. In absolutely privileged communications, the mala or bona fides
of the author is of no moment as the occasion provides
an absolute bar to the action. Examples of these are
speeches or debates made by Congressmen or Senators
in the Congress or in any of its committees. On the other
hand, in qualifiedly or conditionally privileged communications, the freedom from liability for an otherwise
defamatory utterance is conditioned on the absence of
express malice or malice in fact. The second kind of privilege, in fine, renders the writer or author susceptible to
a suit or finding of libel provided the prosecution established the presence of bad faith or malice in fact. To this
genre belongs private communications and fair and
true report without any comments or remarks falling
under and described as exceptions in Article 354 of the
Revised Penal Code (GMA Network, Inc. [formerly known
as Republic Broadcasting System, Inc.] and Rey Vidal vs.
Bustos, et al., G.R. No. 146848, October 17, 2006).
24. Note needs to be taken, however, that the Doctrine of
enumeration under Art. 354 is not an exclusive list of fair comment
qualifiedly privileged communications since fair commentaries on matters of public interest are likewise privileged. Fair commentaries on matters of public interest
are privileged and constitute a valid defense in an action for libel or slander. The doctrine of fair comment
means that while in general every discreditable imputation publicly made is deemed false, because every man
is presumed innocent until his guilt is judicially proved,
and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed
against a public person in his public capacity, it is not
necessarily actionable. In order that such discreditable
imputation to a public official may be actionable, it must
either be a false allegation of fact or a comment based on
a false supposition. If the comment is an expression of
opinion, based on established facts, then it is immaterial
that the opinion happens to be mistaken, as long as it
might reasonably be inferred from the facts (Borjal vs.
Court of Appeals, et al, G.R. No. 126466, January 14, 1999).
25. In New York Times v. Sullivan, the then City
Commissioner L. B. Sullivan of Montgomery, Alabama,
148
CHAPTER 3
MORAL DAMAGES
149
were not backed up by facts, the broadcasts are not privileged and remain libelous per se (Filipinas Broadcasting
Network vs. Ago Medical and Educ. Center- Bicol Christian
College of Medicine, et al., G.R. No. 141994, January 17,
2005).
27. A person who, by his accomplishments, fame, Public figure
mode of living, or by adopting a profession or calling
which gives the public a legitimate interest in his doings, his affairs and his character, has become a public
personage. He is, in other words, a celebrity. Obviously,
to be included in this category are those who have
achieved some degree of reputation by appearing before the public, as in the case of an actor, a professional
baseball player, a pugilist, or any other entertainer. The
list is, however, broader than this. It includes public officers, famous inventors and explorers, war heroes and
even ordinary soldiers, infant prodigy, and no less a personage than the Great Exalted Ruler of the lodge. It includes, in short, anyone who has arrived at a position
where the public attention is focused upon him as a person. (Ayer Production Pty, Ltd. vs. Capulong, G.R. Nos.
82380 and 82398, 29 April 1988, 160 SCRA 861.) As to
them, the interest of society and the maintenance of
good government demand a full discussion of public
affairs. Complete liberty to comment on the conduct of
public men is a scalpel in the case of free speech. The
sharp incision of its probe relieves the abscesses of
officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound may be assuaged
by the balm of a clear conscience. A public official must
not be too thin-skinned with reference to comments upon
his official acts. [US vs. Bustos, 37 Phil. 731 (1918)].
28. A newspaper or broadcaster publishing defamatory falsehoods about an individual who is neither a
public official nor a public figure may not claim a constitutional privilege against liability, for injury inflicted,
even if the falsehood arose in a discussion of public interest (Phil. Journalists, Inc. et al. vs. Thoenen, G.R. No.
143372, December 13, 2005).
29. Publication means to make public; to make
known to people in general; to bring before the public.
150
30. In Arcand v. The Evening Call Publishing Company, the United States Court of Appeals held that one
guiding principle of group libel is that defamation of a
large group does not give rise to a cause of action on the
part of an individual unless it can be shown that he is
the target of the defamatory matter. Declarations made
about a large class of people cannot be interpreted to
advert to an identified or identifiable individual. Absent
circumstances specifically pointing or alluding to a particular member of a class, no member of such class has a
right of action without at all impairing the equally demanding right of free speech and expression, as well as
of the press, under the Bill of Rights. If the group is a
very large one, then the alleged libelous statement is
considered to have no application to anyone in particular, since one might as well defame all mankind. Not
only does the group as such have no action; the plaintiff
does not establish any personal reference to himself. At
present, modern societal groups are both numerous and
complex. The same principle follows with these groups:
as the size of these groups increases, the chances for
members of such groups to recover damages on tortious
libel become elusive. This principle is said to embrace
two (2) important public policies: first, where the group
referred to is large, the courts presume that no reasonable reader would take the statements as so literally applying to each individual member; and second, the limitation on liability would satisfactorily safeguard freedom of speech and expression, as well as of the press,
effecting a sound compromise between the conflicting
fundamental interests involved in libel cases (cf., MVRS
CHAPTER 3
MORAL DAMAGES
151
152
(7) of the Civil Code allows the recovery of moral damages in case of libel, slander or any other form of defamation. This provision of law establishes the right of an
offended party in a case for oral defamation to recover
from the guilty party damages for injury to his feelings
and reputation. The offended party is likewise allowed
to recover punitive or exemplary damages (Occena vs.
Icamina, et al., G.R. No. 82146, January 22, 1990).
33. Allegations and averments in a lawyer s
pleadings are absolutely privileged as long as they are
relevant or pertinent to the issues (See Montenegro v.
Medina, 73 Phil. 602 [1942]). The test to break through
the protective barrier of an absolutely privileged communication is not bona fides but relevance. Thus,
where the allegations made in the complaint for disbarment are not claimed to be irrelevant, the complaint for
disbarment is still covered by the privilege and may not
be the basis of a damage suit arising from libel (Ponce vs.
Legaspi, G.R. No. 79184, May 6, 1992).
34. Pursuant to Article 26, paragraph (4), to the
effect that although it may not constitute a criminal offense, vexing or humiliating another on account of his
religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition, can give rise to
a cause of action for damages, or consonantly with Article 33 which provides that in case of defamation, a civil
complaint for damages, entirely separate and distinct
from the criminal case, may be brought by the injured
party. Both civil actions are based on tort liability under
common law and require the plaintiff to establish that
he has suffered personal damage or injury as a direct
consequence of the defendants wrongful conduct. In
fine, it must be shown that the act complained of is vexatious or defamatory of, and as it pertains to, the claimant, thereby humiliating or besmirching the latters dignity and honor (MVRS Publications, et al vs. Islamic Dawah
Council of the Phil, et al. supra).
Malicious
prosecution
35. It is a settled principle that [w]hen the action is filed in good faith there should be no penalty on
the right to litigate. (Espiritu v. Court of Appeals, 137
SCRA 50). To support, thus, an action for malicious
CHAPTER 3
MORAL DAMAGES
prosecution, the plaintiff must prove the fact of prosecution, that the defendant was himself the prosecutor or
that he instigated its commencement; that it finally terminated in his acquittal; that in bringing it the prosecutor acted without probable cause, and that he was actuated by legal malice, that is, by improper and sinister
motives (Lagman, et al. vs. Intermediate Appellate Court, et
al., G.R. No. L-72281, October 28, 1998). The statutory recognition of an action for damages based on malicious
prosecution (false accusation or denuncia falsa) is found
in Article 2219(8) of the Civil Code which allows recovery of moral damages for malicious prosecution. Article
21 and 2176 of the same Code may also be invoked to
justify the action (supra).
36. The term malicious prosecution has been defined in various ways. In American jurisdiction, it is defined as: One begun in malice without probable cause
to believe the charges can be sustained (Eustace v.
Dechter, 28 Cal. App. 2d. 706, 83 P. 2d. 525). Instituted
with intention of injuring defendant and without probable cause, and which terminates in favor of the person
prosecuted. For this injury an action on the case lies,
called the action of malicious prosecution (Hicks v.
Brantley, 29 S.E. 459, 102 Ga. 264., Eggett v. Allen, 96
N.W. 803 119 Wis. 625). In the Philippines, it has been
defined as: An action for damages brought by one
against whom a criminal prosecution, civil suit, or other
legal proceeding has been instituted maliciously and
without probable cause, after the termination of such
prosecution, suit, or other proceeding in favor of the
defendant therein. The gist of the action is the putting of
legal process in force, regularly, for the mere purpose of
vexation or injury (Drilon vs. Court of Appeals, et al.,
G.R. No. 107019, March 20, 1997).
37. The term malicious prosecution has been
defined as an action for damages brought by one against
whom a criminal prosecution, civil suit, or other legal
proceeding has been instituted maliciously and without
probable cause, after the termination of such prosecution, suit, or other proceeding in favor of the defendant
therein. To constitute malicious prosecution, there
153
154
CHAPTER 3
MORAL DAMAGES
155
156
CHAPTER 3
MORAL DAMAGES
157
discretion in granting or refusing it is governed by reason and justice. In order that a person may be made
liable to the payment of moral damages, the law requires
that his act be wrongful. The adverse result of an action
does not per se make the act wrongful and subject the
actor to the payment of moral damages. The law could
not have meant to impose a penalty on the right to litigate; such right is so precious that moral damages may
not be charged on those who may exercise it erroneously. For these the law taxes costs (Barreto vs. Arevalo,
et al. No. L-7748, Aug. 27, 1956, 52 O.G., No. 13, p. 5818).
48. As for the award of damages under Articles Article 19, 20
19, 20 and 21 of the Civil Code, it was held that [t]he and 21
elements of abuse of right under Article 191 are the following: (1) the existence of a legal right or duty, (2) which
is exercised in bad faith, and (3) for the sole intent of
prejudicing or injuring another. Article 20 speaks of the
general sanction for all other provisions of law which
do not especially provide for their own sanction; while
Article 21 deals with acts contra bonus mores, and has
the following elements: (1) there is an act which is legal,
(2) but which is contrary to morals, good custom, public
order, or public policy, and (3) and it is done with intent
to injure. Verily then, malice or bad faith is at the core of
Articles 19, 20, and 21. (Albenson Enterprises Corp. v.
Court of Appeals, 217 SCRA 16, 25 [1993]).
49. The report of the Code Commission states
thus . . . Fully sensible that there are countless gaps
in the statutes, which leave so many victims of moral
wrongs helpless, even though they have actually suffered material and moral injury, the Commission has
deemed it necessary, in the interest of justice, to incorporate in the proposed Civil Code the following rule: ART.
23. Any person who wilfully causes loss or injury to
another in a manner that is contrary to morals, good
1
The matter is discussed under Chapter 7 of Torts (Quasi-delict)
as specie of special torts.
158
CHAPTER 3
MORAL DAMAGES
159
160
CHAPTER 3
MORAL DAMAGES
161
162
CHAPTER 3
MORAL DAMAGES
163
164
CHAPTER 3
MORAL DAMAGES
165
166
CHAPTER 3
MORAL DAMAGES
167
168
CHAPTER 4
NOMINAL DAMAGES
Nature and
concept
1.
Under Article 2221 of the Civil Code, nominal damages are adjudicated in order that a right of the
plaintiff, which has been violated or invaded by the defendant, may be vindicated or recognized, and not for
the purpose of indemnifying the plaintiff for any loss
suffered by him.
2.
The court may award nominal damages in
every obligation arising from any source enumerated in
Article 1157, or in every case where any property right
has been invaded (Article 2222, Civil Code of the Philippines).
3.
Nominal damages are damages in name only
and not in fact. Where these are allowed, they are not
treated as an equivalent of a wrong inflicted but simply
in recognition of the existence of a technical injury (PNOC
Shipping and Transport Corp. vs. Court of Appeals, et al.,
G.R. No. 107518, October 8, 1998).
4.
Articles 2221 and 2222 of the Civil Code make
it clear that nominal damages are not intended for indemnification of loss suffered but for the vindication or
recognition of a right violated or invaded. They are recoverable where some injury has been done but the
amount of which the evidence fails to show, the assessment of damages being left to the discretion of the court
according to the circumstances of the case (Saludo, Jr., et
al. vs. Court of Appeals, et al., G.R. No. 95536, March 23,
1992).
5.
In the absence of competent proof on the actual damage suffered, private respondent is entitled to
nominal damages which, as the law says, is adjudi168
CHAPTER 4
NOMINAL DAMAGES
169
Instances
where
nominal
damages are
adjudicated
170
invaded by the defendant, may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him (Agabon vs. NLRC, et al.,
G.R. No. 158693, November 17, 2004).
8.
In fixing the amount of nominal damages to
be awarded, the circumstances of each case should thus
be taken into account, such as, to exemplify, the (a) length
of service or employment of the dismissed employee;
(b) his salary or compensation at the time of the termination of employment vis-a-vis the capability of the employer to pay; (c) question of whether the employer has
deliberately violated the requirements for termination
of employment or has attempted to comply, at least substantially, therewith; and/or (d) reasons for the termination of employment (Dissent, Justice Vitug, Serrano vs.
NLRC, et al., G.R. No. 117040, January 27, 2000). Case law
presently fixes nominal damages at P30,000.00 (Chua vs.
NLRC, et al., G.R. No. 146780, March 11, 2005; Jaka Food
Processing Corp vs. Pacot, et al., G.R. No. 151378, March 28,
2005; PT & T Corp vs. NLRC, G.R. No. 147002, April 15,
2005; Philippine Pizza Inc. vs. Bungabong,G.R. No. 154315,
May 9, 2005; Amadeo Fishing Corp. et al. vs. Nierra, et al.,
G.R. No. 163099, October 4, 2005), although in San Miguel
Corporation vs. Aballa, et al., G.R. No. 149011, June 28, 2005,
the Supreme Court ordered payment of nominal damages of P50,000.00 to each of the employees.
9.
Accordingly, (1) if the dismissal is based on a
just cause under Article 282 but the employer failed to
comply with the notice requirement, the sanction to be
imposed upon him should be tempered because the dismissal process was, in effect, initiated by an act imputable to the employee. In these instances, nominal damages is invariably fixed at P30,000.00; (2) if the dismissal
is based on an authorized cause under Article 283 but the
employer failed to comply with the notice requirement,
the sanction should be stiffer because the dismissal process was initiated by the employers exercise of his management prerogative. The nominal damages is at
P50,000.00 (cf., Jaka Food Processing Corporation v. Pacot,
G.R. No. 151378, March 28, 2005, 454 SCRA 119).
10. Where an employer failed to serve a written
notice on the worker at least one (1) month before the
CHAPTER 4
NOMINAL DAMAGES
171
172
CHAPTER 5
TEMPERATE DAMAGES
Nature and
concept
1.
Temperate or moderate damages, which are
more than nominal but less than compensatory damages, may be recovered when the court finds that some
pecuniary loss has been suffered but its amount can not,
from the nature of the case, be proved with certainty
(Art. 2224, Civil Code).
2.
The Code Commission, in explaining the concept of temperate damages under Article 2224, makes
the following comment: In some States of the American Union, temperate damages are allowed. There are
cases where from the nature of the case, definite proof of
pecuniary loss cannot be offered, although the court is
convinced that there has been such loss. For instance,
injury to ones commercial credit or to the goodwill of a
business firm is often hard to show with certainty in
terms of money. Should damages be denied for that reason? The judge should be empowered to calculate moderate damages in such cases, rather than that the plaintiff should suffer, without redress from the defendants
wrongful act (Premiere Devt Bank vs. Court of Appeals, et
al., G.R. No. 159352, April 14, 2004).
3.
Temperate damages may be allowed in cases
where from the nature of the case, definite proof of pecuniary loss cannot be adduced, although the court is
convinced that there has been such loss (MBTC vs. Court
of Appeals, et al., G.R. No. 112576, October 26, 1994).
4.
Thus, in cases where the amount of pecuniary losses could, by their very nature, be established
with certainty, it is error to award temperate damages.
Where the trial court found that plaintiff suffered dam172
CHAPTER 5
TEMPERATE DAMAGES
173
174
7.
The trial court awarded P20,000 as actual
damages, not supported by evidence on record. Actual
damages can be given only to claims which are duly
supported by receipts. Nonetheless, under Article 2224
in lieu of actual damages, temperate damages may be
recovered as it has been shown that the victims family
suffered some pecuniary loss although the amount cannot be proved with certainty. For this reason, the P20,000
award shall be for temperate damages. Further, conformably with prevailing jurisprudence, moral damages is
increased to P50,000. (People vs. Orbes, G.R. No. 132743,
November 22, 2001).
8.
Where the Court finds that some pecuniary
loss has been incurred but the amount cannot be proved
with certainty, such as for medical services and the wake,
temperate damages are appropriately given. Thus, in
People v. Solamillo, which involved robo con homicidio,
the computation in People v. Abrazaldo, fixing temperate damages at P25,000.00, which is half the amount of
the indemnity ex delicto, was affirmed (People vs. Abes, et
al., G.R. No. 138937, January 20, 2004).
9.
Temperate damages may be awarded if there
is no evidence of burial and funeral expenses. This is in
lieu of actual damages as it would be unfair for the
victims heirs to get nothing, despite the death of their
kin, for the reason alone that they cannot produce any
receipts. It was also ruled that temperate and actual damages are mutually exclusive in that both may not be
awarded at the same time, hence, no temperate damages may be granted if actual damages have already
been granted (People vs. Villanueva, G.R. No. 139177, August 11, 2003).
10. Temperate or moderate damages may only
be given if the court finds that some pecuniary loss has
been suffered but that its amount cannot, from the nature of the case, be proved with certainty. If the factual
CHAPTER 5
TEMPERATE DAMAGES
175
176
CHAPTER 6
LIQUIDATED DAMAGES
Liquidated
damages,
defined
1.
Liquidated damages are those that the parties agree to be paid in case of a breach. As worded, the
amount agreed upon answers for damages suffered by
the owner due to delays in the completion of the project.
Under Philippine laws, these damages take the nature
of penalties. A penal clause is an accessory undertaking
to assume greater liability in case of a breach. It is attached to an obligation in order to ensure performance
(HL Carlos Construction vs. Marina Properties Corp., G.R.
No. 147614, January 29, 2004).
Nature and
concept
2.
In case liquidated damages have been agreed
upon, no proof of loss is necessary in order that such
liquidated damages may be recovered (Scott Consultants
& Resource Devt Corp., Inc. vs. Court of Appeals, et al., G.R.
No. 112916, March 16, 1995). The stipulation for liquidated damages is intended to obviate controversy on
the amount of damages (Napocor vs. National Merchandising Corporation, et al., G.R. No. L-33819 & L-33897, October 23, 1982).
3.
Attorneys fee is in the concept of actual damages (Fores vs. Miranda, 105 Phil., 266; 57 Off. Gaz., [44]
7938), except that when it is stipulated and therefore in
the form of liquidated damages no proof of pecuniary
loss is required (Article 2216) (Santiago vs. Dimayuga, G.R.
No. L-17883, December 30, 1961).
4.
The judge shall equitably reduce the penalty when the principal obligation has been partly or
irregularly complied with by the debtor. Even if there
has been no performance, the penalty may also be reduced by the courts if it is iniquitous or unconscionable.
(Art. 1229, Civil Code).
176
CHAPTER 6
LIQUIDATED DAMAGES
5.
Liquidated damages, whether intended as an
indemnity or a penalty, shall be equitably reduced if
they are iniquitous or unconscionable (Art. 2227, Civil
Code).
6.
Liquidated damages are identical to penalty
insofar as legal results are concerned. Intended to ensure the performance of the principal obligation, such
damages are accessory and subsidiary obligations. The
nullity of the principal obligation carried with it the nullity of the accessory obligation of liquidated damages
(Menchavez, et al. vs. Teves. Jr., G.R. No. 153201, January
26, 2005).
7.
When the breach of the contract committed
by the defendant is not the one contemplated by the
parties in agreeing upon the liquidated damages, the
law shall determine the measure of damages, and not
the stipulation (Art. 2228, Civil Code).
177
178
CHAPTER 7
EXEMPLARY DAMAGES
Nature and
concept
1.
Also known as punitive or vindictive
damages, exemplary or corrective damages are intended
to serve as a deterrent to serious wrongdoings and as a
vindication of undue sufferings and wanton invasion of
the rights of an injured or a punishment for those guilty
of outrageous conduct. These terms are generally, but
not always, used interchangeably. In common law, there
is preference in the use of exemplary damages when the
award is to account for injury to feelings and for the
sense of indignity and humiliation suffered by a person
as a result of an injury that has been maliciously and
wantonly inflicted, the theory being that there should
be compensation for the hurt caused by the highly reprehensible conduct of the defendant associated with
such circumstances as willfulness, wantonness, malice,
gross negligence or recklessness, oppression, insult or
fraud or gross fraud that intensifies the injury. The
terms punitive or vindictive damages are often used to
refer to those species of damages that may be awarded
against a person to punish him for his outrageous conduct. In either case, these damages are intended in good
measure to deter the wrongdoer and others like him
from similar conduct in the future (People vs. Catubig,
G.R. No. 137842, August 23, 2001).
Requisites for
2.
The following are the requisites for award of
the award of exemplary damages: First: They may be imposed by way
exemplary
of example or correction only in addition to compensadamages
CHAPTER 7
EXEMPLARY DAMAGES
179
Instances
where
exemplary
damages are
adjudicated
180
655; Globe Mackay Cable and Radio Corp. vs. CA, 176
SCRA 778. In contracts and quasi-contracts, the court may
award exemplary damages if the defendant is found to
have acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner (Art. 2232, Civil Code; PNB
vs. Gen. Acceptance and Finance Corp., 161 SCRA 449).
7.
In contracts and quasi-contracts, the court may
award exemplary damages if the defendant acted in a
wanton, fraudulent, reckless, oppressive or malevolent
manner (Art. 2332, Civil Code). It may be awarded for
breach of contract or quasi-contract as when a telegraph
company personnel transmitted the wrong telegram.
Gross carelessness or negligence constitutes wanton misconduct. (Radio Communication of the Philippines, Inc. v.
Court of Appeals, 103 SCRA 359 [1981]. It is not recoverable in the absence of gross negligence (Bagumbayan Corp.
v. Intermediate Appellate Court, 132 SCRA 441 [1984]).
8.
The cavalier treatment of airline personnel
manifests malice as manifested in the contemptuous disregard of the passengers protest and the abrupt rejection of their request that the Manila office be contacted
for verification of the correct billing. Rudeness is never
excusable. It is especially condemnable if it is committed in ones own country against a foreign guest. Airlines should always bear in mind the special responsibilities they owe their passengers not only of carrying
them safely and comfortably according to their contracts
but also of extending to them the courtesy due them in
all matters relating to their trip, including reservations,
confirmation of bookings, ticketing and other ground
and in-flight services. The fare of the passenger includes
payment for politeness. Award of exemplary damages
warranted (Northwest Orient Airlines vs. Court of Appeals,
et al., G.R. No. 83033, June 8, 1990). In these cases, neither
the social standing nor prestige of the passenger should
determine the extent to which he would suffer because
of a wrong done, since the dignity affronted in the individual is a quality inherent in him and not conferred by
these social indicators. Thus, as well and aptly put by
Justice Serafin Camilon, propriety of damage awards is
judged by their fairness considering all the circumstances.
CHAPTER 7
EXEMPLARY DAMAGES
181
182
CHAPTER 7
EXEMPLARY DAMAGES
the zeal to put up public impact projects such as beautification drives, the end is more important than the manner in which the work is carried out. Because of this
obsession for showing off, such trivial details as misplaced flower pots betray the careless execution of the
projects, causing public inconvenience and inviting accidents (Guilatco vs. City of Dagupan, et al., G.R. No. 61516,
March 21, 1989).
14. Exemplary damages in criminal cases may be
imposed when the crime was committed with one or
more aggravating circumstances (Art. 2230, New Civil
Code).
15. Exemplary damages awarded in case of
sexual violence inflicted upon the eight-year old child.
The trauma sustained by her is not merely physical and
may be expected to remain with her for a long, long
time, possible for life (People vs. Perez, G.R. No. 84362,
July 7, 1989).
16. Raping a married woman after forcibly abducting her, in the presence of her husband warrants
the imposition of exemplary damages by way of example
to deter others from committing similar acts or correction for the public good is in order (People vs. Grefiel,
G.R. No. 77228, November 13, 1992).
17. Raping a pregnant married woman also warrants the imposition of exemplary damages. In so doing,
the accused has shown moral corruption, perversity,
and wickedness. He has grievously wronged the institution of marriage (People vs. Cristobal, G.R. No. 116279,
January 29, 1996).
18. Raping a woman while already lifeless is
shocking to conscience and warrants the imposition of
exemplary damages (People vs. Espanola, et al., G.R. No.
119308, April 18, 1997).
19. Exemplary damages also imposed to deter
other fathers with perverse tendencies or aberrant sexual
behavior from sexually abusing their own daughters
(People vs. Matrimonio, G.R. No. 82223-24, November 13,
183
184
CHAPTER 7
EXEMPLARY DAMAGES
185
186
187
CHAPTER 8
ASSESSMENT OF DAMAGES
1.
There is, to be sure, no hard and fast rule for Guiding
determining what would be a fair amount of moral (or principle
exemplary) damages, each case having to be governed
by its attendant particulars. Generally, the amount of
moral damages should be commensurate with the actual loss or injury suffered (del Rosario vs. Court of Appeals, et al., G.R. No. 118325, January 29, 1997).
2.
In Inhelder Corporation v. Court of Appeals, G.R.
No. L-52358, 122 SCRA 576, 585, (May 30, 1983), the rule
was laid down that judicial discretion granted to the
courts in the assessment of damages must always be
exercised with balanced restraint and measured objectivity.
3.
In crimes, the damages to be adjudicated may In crimes
be respectively increased or lessened according to the
aggravating or mitigating circumstances (Article 2204,
Civil Code).
In simple and qualified rape cases, the Supreme
Court noted that there is an apparent discord in the
award of exemplary damages which deserves more than
just a passing remark (cf., People vs. Catubig, G.R. No.
137842, August 23, 2001).
The attendance of aggravating circumstances in the
perpetration of the crime serves to increase the penalty
(the criminal liability aspect), as well as to justify an
award of exemplary or corrective damages (the civil liability aspect), moored on the greater perversity of the
offender manifested in the commission of the felony such
as may be shown by (1) the motivating power itself, (2)
the place of commission, (3) the means and ways em187
188
Citations omitted.
CHAPTER 8
ASSESSMENT OF DAMAGES
189
190
In quasidelicts
4.
In quasi-delicts, the contributory negligence of
the plaintiff shall reduce the damages that he may recover (Art. 2214, Civil Code).
In quasicontracts
5.
In contracts, quasi-contracts, and quasi-delicts,
the court may equitably mitigate the damages under
circumstances other than the case referred to in the preceding article, as in the following instances: (1) That the
plaintiff himself has contravened the terms of the contract; (2) That the plaintiff has derived some benefit as a
result of the contract; (3) In cases where exemplary damages are to be awarded, that the defendant acted upon
the advice of counsel; (4) That the loss would have resulted in any event; (5) That since the filing of the action, the defendant has done his best to lessen the
plaintiffs loss or injury (Article 2215, Civil Code).
Doctrine of
avoidable
consequences
6.
The party suffering loss or injury must exercise the diligence of a good father of a family to minimize the damages resulting from the act or omission in
question (Article 2203, Civil Code). Under the doctrine of
avoidable consequences, a party cannot recover damages flowing from the consequences which that party
could reasonably have avoided (22 AmJur 2d, at p. 51).
Corollary to this principle, the person who reasonably
attempts to minimize his damages can recover expenses
incurred. Thus, in the United States, a person tortiously
injured can recover the cost of medical services incurred
in seeking correction of the injury (Id., at p. 52).
7.
The doctrine of avoidable consequences is to
be distinguished from the doctrine of contributory negligence. Although in this jurisdiction, both operate to
prevent full recovery, contributory negligence occurs either before or at the time of the wrongful act or omission of the defendant. On the other hand, the doctrine of
avoidable consequences arise after the wrongful act of
the defendant (cf., 22 AmJur 2d, at p. 52).
Judgment on
8.
The court cannot take judgment on the pleadthe pleadings ings on claims for damages. The Supreme Court held in
improper
Raagas v. Traya, et al., G.R. No. L-20081, February 27, 1968,
CHAPTER 7
ASSESSMENT OF DAMAGES
191
the answer, such damages are not deemed admitted. Actual damages must be proved and a court cannot rely on
speculation, conjecture or guesswork as to the fact and
amount of damages, but must depend on actual proof
that damages had been suffered and on evidence of the
actual amount. Although an allegation is not necessary
in order that moral damages may be awarded, it is essential that the claimant satisfactorily prove the existence of the factual basis of the damage and its causal
relation to defendants acts. Even if the allegations regarding the amount of damages in the complaint are not
specifically denied in the answer, such damages are not
deemed admitted. Actual damages must be proved and
a court cannot rely on speculation, conjecture or guesswork as to the fact and amount of damages, but must
depend on actual proof that damages had been suffered
and on evidence of the actual amount. Although an allegation is not necessary in order that moral damages may
be awarded, it is essential that the claimant satisfactorily prove the existence of the factual basis of the damage and its causal relation to defendants acts.
9.
Under Article 32 and 2219 of the New Civil
Code, a person whose constitutional rights have been
violated or impaired is entitled to actual and moral damages from the public officer or employee responsible
therefore. In addition, exemplary damages may also be
awarded. To be liable under Article 32 of the New Civil
Code it is enough that there is a violation of the constitutional rights of the plaintiffs and it is not required that
defendants should have acted with malice or bad faith.
Public officials in the past have abused their powers on
the pretext of justifiable motives or good faith in the
performance of their duties. Precisely, the object of Article 32 of the Civil Code is to put an end to official
abuse by the plea of good faith (Lim, et al. vs. de Leon, et
al., G.R. No. L-22554, August 29, 1975).
10. Article 32 speaks of an officer or employee or
person directly or indirectly responsible for the violation of the constitutional rights and liberties of another.
Thus, it is not the actor alone (i.e. the one directly responsible) who must answer for damages under Article
Good faith
not a defense
in action for
damages
founded on
violation of
constitutional
rights
192
193
APPENDICES
APPENDIX A
CIVIL CODE PROVISIONS ON QUASI-DELICT
BOOK IV
TITLE XVII
Chapter 2
QUASI-DELICTS
Art. 2176. Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage done.
Such fault or negligence, if there is no pre-existing contractual relation
between the parties, is called a quasi-delict and is governed by the
provisions of this Chapter. (1902a)
Art. 2177. Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the civil liability arising
from negligence under the Penal Code. But the plaintiff cannot recover
damages twice for the same act or omission of the defendant. (n)
Art. 2178. The provisions of Articles 1172 to 1174 are also applicable to a quasi-delict. (n)
Art. 2179. When the plaintiffs 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 courts shall mitigate the damages to be
awarded. (n)
Art. 2180. The obligation imposed by Article 2176 is demandable
not only for ones own acts or omissions, but also for those of persons
for whom one is responsible.
193
194
The father and, in case of his death or incapacity, the mother, are
responsible for the damages caused by the minor children who live in
their company.
Guardians are liable for damages caused by the minors or incapacitated persons who are under their authority and live in their company.
The owners and managers of an establishment or enterprise are
likewise responsible for damages caused by their employees in the
service of the branches in which the latter are employed or on the
occasion of their functions.
Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned
tasks, even though the former are not engaged in any business or industry.
The State is responsible in like manner when it acts through a
special agent; but not when the damage has been caused by the official
to whom the task done properly pertains, in which case what is provided in Article 2176 shall be applicable.
Lastly, teachers or heads of establishments of arts and trades shall
be liable for damages caused by their pupils and students or apprentices, so long as they remain in their custody.
The responsibility treated of in this article shall cease when the
persons herein mentioned prove that they observed all the diligence of
a good father of a family to prevent damage. (1903a)
Art. 2181. Whoever pays for the damage caused by his dependents or employees may recover from the latter what he has paid or
delivered in satisfaction of the claim. (1904)
Art. 2182. If the minor or insane person causing damage has no
parents or guardians, the minor or insane person shall be answerable
with his own property in an action against him where a guardian ad
litem shall be appointed. (n)
Art. 2183. The possessor of an animal or whoever may make use
of the same is responsible for the damage which it may cause, although
it may escape or be lost. This responsibility shall cease only in case the
damage should come from force majeure or from the fault of the person
who has suffered damage. (1905)
Art. 2184. In motor vehicle mishaps, the owner is solidarily liable
with his driver, if the former, who was in the vehicle, could have, by the
APPENDIX A
CIVIL CODE PROVISIONS ON QUASI-DELICT
195
use of due diligence, prevented the misfortune. It is disputably presumed that a driver was negligent, if he had been found guilty of reckless driving or violating traffic regulations at least twice within the next
preceding two months.
If the owner was not in the motor vehicle, the provisions of Article 2180 are applicable. (n)
Art. 2185. Unless there is proof to the contrary, it is presumed that
a person driving a motor vehicle has been negligent if at the time of the
mishap, he was violating any traffic regulation. (n)
Art. 2186. Every owner of a motor vehicle shall file with the proper
government office a bond executed by a government-controlled corporation or office, to answer for damages to third persons. The amount of
the bond and other terms shall be fixed by the competent public official. (n)
Art. 2187. Manufacturers and processors of foodstuffs, drinks, toilet articles and similar goods shall be liable for death or injuries caused
by any noxious or harmful substances used, although no contractual
relation exists between them and the consumers. (n)
Art. 2188. There is prima facie presumption of negligence on the
part of the defendant if the death or injury results from his possession
of dangerous weapons or substances, such as firearms and poison, except when the possession or use thereof is indispensable in his occupation or business. (n)
Art. 2189. Provinces, cities and municipalities shall be liable for
damages for the death of, or injuries suffered by, any person by reason
of the defective condition of roads, streets, bridges, public buildings,
and other public works under their control or supervision. (n)
Art. 2190. The proprietor of a building or structure is responsible
for the damages resulting from its total or partial collapse, if it should
be due to the lack of necessary repairs. (1907)
Art. 2191. Proprietors shall also be responsible for damages caused:
(1) By the explosion of machinery which has not been taken
care of with due diligence, and the inflammation of explosive substances which have not been kept in a safe and adequate place;
(2) By excessive smoke, which may be harmful to persons or
property;
(3) By the falling of trees situated at or near highways or lanes,
if not caused by force majeure;
196
(4) By emanations from tubes, canals, sewers or deposits of infectious matter, constructed without precautions suitable to the place.
(1908)
Art. 2192. If damage referred to in the two preceding articles should
be the result of any defect in the construction mentioned in Article
1723, the third person suffering damages may proceed only against the
engineer or architect or contractor in accordance with said article, within
the period therein fixed. (1909a)
Art. 2193. The head of a family that lives in a building or a part
thereof, is responsible for damages caused by things thrown or falling
from the same. (1910)
Art. 2194. The responsibility of two or more persons who are liable for a quasi-delict is solidary. (n)
197
APPENDIX B
CIVIL CODE PROVISIONS ON DAMAGES
BOOK IV
TITLE XVIII DAMAGES
Chapter 1
GENERAL PROVISIONS
Art. 2195. The provisions of this Title shall be respectively applicable to all obligations mentioned in Article 1157.
Art. 2196. The rules under this Title are without prejudice to special provisions on damages formulated elsewhere in this Code. Compensation for workmen and other employees in case of death, injury or
illness is regulated by special laws. Rules governing damages laid down
in other laws shall be observed insofar as they are not in conflict with
this Code.
Art. 2197. Damages may be:
(1)
Actual or compensatory;
(2)
Moral;
(3)
Nominal;
(4)
Temperate or moderate;
(5)
Liquidated; or
(6)
Exemplary or corrective.
Art. 2198. The principles of the general law on damages are hereby
adopted insofar as they are not inconsistent with this Code.
Chapter 2
ACTUAL OR COMPENSATORY DAMAGES
Art. 2199. Except as provided by law or by stipulation, one is
entitled to an adequate compensation only for such pecuniary loss suf197
198
APPENDIX B
CIVIL CODE PROVISIONS ON DAMAGES
199
tiff;
(4) In case of a clearly unfounded civil action or proceeding
against the plaintiff;
(5) Where the defendant acted in gross and evident bad faith in
refusing to satisfy the plaintiffs plainly valid, just and demandable
claim;
(6)
200
(5) That since the filing of the action, the defendant has done
his best to lessen the plaintiffs loss or injury.
APPENDIX B
CIVIL CODE PROVISIONS ON DAMAGES
201
Chapter 3
OTHER KINDS OF DAMAGES
Art. 2216. No proof of pecuniary loss is necessary in order that
moral, nominal, temperate, liquidated or exemplary damages may be
adjudicated. The assessment of such damages, except liquidated ones,
is left to the discretion of the court, according to the circumstances of
each case.
Section 1. Moral Damages
Art. 2217. Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if
they are the proximate result of the defendants wrongful act for omission.
Art. 2218. In the adjudication of moral damages, the sentimental
value of property, real or personal, may be considered.
Art. 2219. Moral damages may be recovered in the following and
analogous cases:
(1)
(2)
(3)
(4)
Adultery or concubinage;
(5)
(6)
Illegal search;
(7)
(8)
Malicious prosecution;
(9)
(10) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30,
32, 34, and 35.
The parents of the female seduced, abducted, raped, or abused,
referred to in No. 3 of this article, may also recover moral damages.
202
APPENDIX B
CIVIL CODE PROVISIONS ON DAMAGES
203
204
205
SUBJECT INDEX
TORTS
ABUSE OF RIGHT
Doctrine ...........................................................................
102
Elements ...........................................................................
104
Test
...........................................................................
105
ACADEMIC INSTITUTIONS
Liability for quasi-delict ....................................................
69
Liability under contracts ...................................................
70
As employer ........................................................................
71
ANTI-VIOLENCE AGAINST WOMEN AND CHILDREN ..
109
ASSUMPTION OF RISK .............................................................
75
Coverage ...........................................................................
75
Exceptions ...........................................................................
76
BURDEN OF PROOF ..................................................................
31
CAPTAIN OF THE SHIP DOCTRINE ......................................
122
CAVEAT EMPTOR ......................................................................
98, 99
CAVEAT VENDITOR ..................................................................
98
CONSUMER ACT OF THE PHILIPPINES ..............................
96
CORPORATION
Liability of directors/ trustees .........................................
122
CULPA AQUILIANA
Distinguished from culpa criminal ..................................
5
Distinguished from culpa contractual ............................
16, 17
Available remedies .............................................................
86, 91
Action for damages survives death of defendant .........
93
DILIGENCE OF GOOD FATHER OF FAMILY ....................... 29, 39, 52
In the supervision of employees ......................................
52
In the selection of employees ...........................................
54
As a defense ........................................................................
81
DOCTRINE OF ATTRACTIVE NUISANCE ...........................
74
Excavation ...........................................................................
75
DOCTRINE OF CONTRIBUTORY NEGLIGENCE
Definition ...........................................................................
82
205
206
82
83
83
85
77
73
77
77- 79
79
79
98
79
106
14
56, 58
96
115
43
43
100
118, 120
77
12
90
93
109
84
122
95-100
110
112
115
23
24
SUBJECT INDEX
TORTS
207
25
28
32, 33
36
72
77
82
123
110
94-95
81
29
30
30
2, 3
3
5
14
15
16, 17
18
69
33
35, 116
87- 90
45, 50
48
77
61
48
102, 103
157
94
94
94
37, 92
208
209
SUBJECT INDEX
DAMAGES
ACTUAL DAMAGES
Definition ...........................................................................
Requirements ......................................................................
Burden of proof ..................................................................
Components of ...................................................................
Kinds ....................................................................................
In contracts ..........................................................................
In quasi-contracts ...............................................................
In quasi-delict .....................................................................
In crimes ..............................................................................
ATTORNEYS FEES .....................................................................
BREACH OF PROMISE TO MARRY ........................................
CIVIL INDEMNITY .....................................................................
In rape cases ........................................................................
DAMAGE .....................................................................................
DAMAGES
Definition .............................................................................
Distinguished from other concepts .................................
Rationale ..............................................................................
General damages ................................................................
Special damages .................................................................
Assessment of .....................................................................
DAMNUM ABSQUE INJURIA .................................................
DOCTRINE OF AVOIDABLE CONSEQUENCE ....................
DOCTRINE OF FAIR COMMENT ............................................
EGGSHELL SKULL RULE .........................................................
EXEMPLARY DAMAGES
Nature and concept ............................................................
Requisites ............................................................................
Rationale ..............................................................................
When recoverable ..............................................................
GENERAL DAMAGES ...............................................................
209
127
128
128
129
130
130
130
131, 135
131, 135
138, 139
158, 165
135, 136
143
124
124
124
125
125
125
187
124, 125
190
147
131
178
178
179
179
125
210
INJURY .....................................................................................
INTEREST .....................................................................................
JUDGMENT ON PLEADINGS ..................................................
LIBEL
.....................................................................................
Publication in libel cases ...................................................
Group libel ..........................................................................
LIQUIDATED DAMAGES
Definition .............................................................................
Nature and concept ............................................................
LOST EARNINGS ........................................................................
Formula ...............................................................................
LUCRUM CESSANS ...................................................................
MALICIOUS PROSECUTION ...................................................
MORAL DAMAGES
Nature and concept ............................................................
Requirements ......................................................................
Instances where moral damages may be recovered ......
In seduction .........................................................................
In quasi-delict .....................................................................
In rape cases ........................................................................
In defamation ......................................................................
In culpa contractual cases .................................................
Analogous cases .................................................................
In favor of corporation, general rule ...............................
Exception .............................................................................
NOMINAL DAMAGES
Nature and concept ............................................................
When recoverable ..............................................................
PUBLIC FIGURE DOCTRINE ...................................................
SPECIAL DAMAGES ..................................................................
SUBROGATORY RIGHT OF INSURER ...................................
TEMPERATE DAMAGES
Nature and concept ............................................................
When recoverable ..............................................................
THIN SKULL RULE ....................................................................
124
136, 137
190
146
149
150
176
176
133
134
130
152
141
142
144
144
144
145
145
159
163
166
167
168
169
149
125
140
172
174
131
211
AUTHORS ACADEMIC
PROFILE
Ms. Largo is a graduate of Bachelor of Arts Major in Political
Science Class Valedictorian and Magna Cum Laude of Class 1995 from
University of San Carlos, Asias oldest educational institution located
in the heart of Central Philippines. She took up her law studies in the
same University under full scholarship from The Goipeng Foundation
and graduated Class Valedictorian and Cum Laude of her Law Class in
1999. In May 2005, she finished her Master of Laws degree from the
University of Southern Philippines, Cebu City. In May 2007, she
obtained her second Master of Laws degree from San Beda College
Graduate School of Law, Mendiola, Manila where she graduated Cum
Laude. This book is her final output in the course.
At present, Ms. Largo serves as Assistant to the Dean in the
College of Law of University of San Carlos and its professor in Constitutional Law, Administrative Law, Election Laws and Torts and
Damages. She is also actively engaged in trial and appellate practice
with Florido and Largo Law Office, (formerly, Florido & Associates
Law Offices), a 75-year old law firm based in Cebu.
JOAN S. LARGO
ISBN 978-971-23-4880-8
No. ____________
Printed by
ii
AUTHORS NOTE
TORTS AND DAMAGES are two very important legal concepts.
In this crowded world, the need for regulation in the conduct of our
professional and personal lives becomes increasingly real. In instances
where rights are transgressed and laws are violated, people turn to
courts for peaceful resolution of their conflicts. When they do, there
perhaps is no law as constantly invoked in every case, and in every
relief than our law on damages.
It is for good measure, then, that we see a growing tendency to
give much-deserved importance to these heretofore neglected areas of
law. Recent Bar Examinations show that more and more questions are
being asked in Civil Law on torts and damages. Recent cases, too, show
our own Supreme Court breaking new grounds in our laws on
negligence.
With this newly-gained attention on the subjects came the authors
felt need to write this humble treatise. The objective is to present torts
and damages comprehensively while adhering to their teachable limits.
This is, thus, an endeavor to state, with brevity and with accuracy, the
fundamental principles governing tort litigations in the Philippines and
the claims for damages, so that the reader may have a handy yet
credible reference on the subject.
In this book, the essential concepts of torts and damages are
presented using and analyzing cases decided by the Philippine Supreme
Court from 1901 to 2006. In less-visited areas in torts such as medical
malpractice and product liability torts, wealth of information is drawn
from foreign decisions and commentaries.
The book opens with a discussion of the fundamental principles
in torts. Tort is inherently a common law concept. It is largely comprised
of judicial opinions. It is, in this sense, pervasive. It can be any wrongful
conduct or omission, for as long as there is no pre-existing contract
between parties. The distinguishing mark of a tort action, then, is that
it is not based on agreement between parties, but on the prescriptions
of law or community as applied or interpreted by the judge.
iii
vi
TABLE OF CONTENTS
OUTLINE
I.
Page
QUASI-DELICT
AUTHORS NOTE ......................................................................
iii
CHAPTER 1.
CHAPTER 2.
CHAPTER 3.
CHAPTER 4.
1
23
37
72
86
94
102
110
124
127
141
168
172
176
178
187
APPENDICES ........................................................................................
SUBJECT INDEX ..................................................................................
193
205
CHAPTER 5.
CHAPTER 6.
CHAPTER 7.
CHAPTER 8.
II.
DAMAGES
CHAPTER 1.
CHAPTER 2.
CHAPTER 3.
CHAPTER 4.
CHAPTER 5.
CHAPTER 6.
CHAPTER 7.
CHAPTER 8.
SUB-OUTLINE
AUTHORS NOTE
I.
QUASI-DELICT
CHAPTER 1.
INTRODUCTORY CONCEPTS
Definition of Quasi-delict .................................
Quasi-delict distinguished from torts ..............
Elements of Quasi-delict ...................................
vii
1
2
3
CHAPTER 3.
ELEMENTS OF QUASI-DELICT
Definition of Negligence ...................................
Test to determine existence of negligence .........
Degrees of Negligence .......................................
Nature of the concept ........................................
Factors to be considered ....................................
Definition of proximate cause ...........................
Concurrence of efficient causes .........................
Burden of proof .................................................
Presumptions of negligence ..............................
Definition of Res ipsa loquitur .........................
14
15
16
18
23
24
25
25
28
29
30
31
32
33
NATURE OF LIABILITY
Liability of tortfeasors .......................................
Doctrine of Vicarious Liability .........................
Rationale .......................................................
Vicarious liability of parents ............................
Vicarious liability of guardians ........................
Vicarious liability of employers ........................
Distinctions between employers vicarious
liability under Art. 2180 of NCC
and employers subsidiary liability
under Art. 100 of RPC ...........................
Vicarious liability of owner of vehicle ..............
Vicarious liability of State ................................
Provinces, cities and municipalities .................
Vicarious liability of teachers and owners
of schools of arts and trade .....................
Liability of proprietor of building .....................
CHAPTER 4.
37
38
38
40
43
43
56
60
60
62
64
71
72
73
87
92
94
94
95
100
SPECIAL TORTS
Definition .......................................................
Abuse of Right Principle ..................................
Cases under Art. 21 of NCC ............................
Emotional distress tort action .......................
Cases under Art. 26 of NCC ............................
Interference with contractual relations ............
CHAPTER 8.
86
CHAPTER 7.
83
ENFORCEMENT OF LIABILITY
Available remedies .............................................
Rules governing requirement on
reservation of independent civil action ...
Nature of liability .............................................
CHAPTER 6.
74
75
77
79
81
81
82
102
102
103
106
108
109
KINDRED TORTS
Medical Malpractice/Medical Negligence ........
Elements of Medical Negligence ......................
Error in Judgment rule .....................................
Evidential rules .................................................
Liability of hospitals ..........................................
Special or limited practitioners ........................
Legal Malpractice ..............................................
Liability of directors and trustees of
corporation ...............................................
A word on nuisance ..........................................
ix
110
112
115
115
118
121
122
122
123
II.
DAMAGES
CHAPTER 1.
INTRODUCTORY CONCEPTS
Definition of damages .......................................
Distinctions with other concepts ......................
Rationale .......................................................
General and special damages ............................
CHAPTER 2.
ACTUAL DAMAGES
Definition .......................................................
Requirements for the grant of actual
damages ...................................................
Components of actual damages ........................
In contracts and quasi-contracts ............
In quasi-delicts ........................................
In crimes ..................................................
Interest .....................................................
Attorneys fees .........................................
Subrogatory right of the insurer ......................
CHAPTER 3.
127
128
129
130
131
131
136
138
140
MORAL DAMAGES
Nature and concept ...........................................
Requirements for the grant of moral
damages ...................................................
Instances where moral damages may
be recovered .............................................
In seduction .............................................
In quasi-delict ..........................................
In rape .....................................................
In defamation ...........................................
Doctrine of fair comment ..............
Public Figure .................................
Group libel .....................................
Malicious prosecution .............................
Art. 19, 20, 21 of NCC .....................................
Breach of promise to marry .....................
Culpa contractual cases ....................................
Analogous cases ................................................
General rule on moral damages in favor
of corporation ..........................................
Exception .......................................................
CHAPTER 4.
124
124
125
125
141
142
144
144
144
145
145
147
149
150
152
157
158
159
163
166
167
NOMINAL DAMAGES
Nature and concept ...........................................
x
168
TEMPERATE DAMAGES
Nature and concept ...........................................
Instances where temperate damages
are adjudicated .........................................
CHAPTER 6.
174
176
176
EXEMPLARY DAMAGES
Nature and concept ...........................................
Requisites for the award of exemplary
damages ...................................................
Rationale for the award of exemplary
damages ...................................................
Instances where exemplary damages
are adjudicated .........................................
CHAPTER 8.
172
LIQUIDATED DAMAGES
Definition of liquidated damages ......................
Nature and concept ...........................................
CHAPTER 7.
169
178
178
179
179
187
187
190
190
190
190
191
193
197
205
APPENDICES
xi