KVYN NOTES

Chapter 1Introduction to Torts has not happened or has not been

committed by the accused.
In common law, torts cover all wrongful acts,
although sometimes viewed to be limited
only to a wrong independent of a contract Quasi-delict distinguished from tort

In common law countries, it torts are What are generally considered tortious acts
classified as: in the Philippines are limited to acts
committed by negligence and without
intent.
Intentional Torts Unintentional Torts Quasi-delict under Art 2176 is limited to
Include assault, Are usually founded negligent acts or omissions and excludes the
battery, intentional on negligent acts and notion of willingness or intent.
infliction of emotional may include
distress (IIED), malpractice and Quasi-delict Torts
invasion of privacy, product liability -Known in Spanish -Anglo-american or
false imprisonment, legal treatises as common law concept
fraud, malicious culpa aquiliana
prosecution, -civil law concept
defamation, abuse of Limited to negligent Much broader than
processes, trespass acts or omissions culpa aquiliana
to land and trespass because it includes
to chattels not only negligence,
but intentional
criminal acts as well
Article 2176 of the Civil Code such as assault and
Whoever by act or omission causes damage battery, false
to another, there being fault or negligence, is imprisonment and
obliged to pay for the damage done. Such deceit
fault or negligence, if there is no pre-existing
contractual relation between the parties is Elements of Quasi-delict
called quasi-delict
1. Damages suffered by the plaintiff;
-Art 2176, where it refers to fault or 2. Fault or negligence of the defendant,
negligence, covers not only acts not or some other person for whose acts
punishable by law but also acts criminal in he must respond; and
character, whether intentional and voluntary 3. The connection of the cause and effect
or negligent. Consequently, a separate civil between the fault or negligence of the
action lies against the offender in a criminal defendant and the damages incurred
act, whether or not he is criminally by the plaintiff
prosecuted and found guilty or acquitted,
provided that the offended party is not (Taylor vs Manila Electric
allowed, if he is actually charged also Company, 16 Phil 8)
criminally, to recover damages on both
scores, and would be entitled in such
eventuality only to the bigger award of the Art 2177 of the Civil Code
two assuming the awards made in the two
Responsibility for fault or negligence under
cases vary.
quasi-delict is entirely separate and distinct
-the civil liability for the same act considered from the civil liability arising from negligence
as a quasi-delict only and not as a crime is under the Penal Code. But the plaintiff
not extinguished even by a declaration in the cannot recover damages twice for the same
criminal case that the criminal act charged act or omission of the defendant.

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 KVYN NOTES

Civil Code are separate, distinct and

independent of the civil action deemed
Two kinds of liability on the part of the
instituted in the criminal action.
offender
1. Civil liability ex delicto
2. Civil liability ex quasi delicto Civil Liability ex-delictooption of the
offended
Since the same negligence can give rise
either to a delict or crime or to a quasi-delict Under the present Rule 111, the offended
or tort, either of these two types of civil party is still given the option to file a
liability may be enforced against the culprit, separate civil action to recover civil liability
subject to the caveat under Article 2177 of ex-delicto by:
the Civil Code that the offended party cannot
recover damages under both types of 1. By reserving such right in the criminal
liability. action before the prosecution presents
its evidence;
2. The offended party is deemed to make
such reservation if he files a separate
Culpa Criminal Culpa Aquiliana civil action befire filing the criminal
Crimes affect public Are only of private action;
interest concern 3. If the civil action to recover civil
Penal code punishes Civil code by means liability ex-delicto is filed separately
or corrects the of indemnification, but its trial has not yet commenced,
criminal act merely repairs the the civil action may be consolidated
damage with the criminal action
Delicts are not as Cuasi-delitos,
broad as quasi- includes all acts in
delicts, because the which any kind of
Sps. Santos, et al vs Pizardo, et al., GR
former are punished fault or negligence
No. 151452
only if there is a intervenes.
penal law clearly an act or omission causing damage to
covering them another may give rise to two separate civil
liabilities on the part of the offender, i.e.
Q. May the civil action for culpa (1) Civil liability ex delicto; and
aquiliana and the criminal action for the (2) Independent civil liabilities, such as
same negligent act be filed those
simultaneously? (a) Not arising from an act or omission
complained of as a felony, e.g.,
A. Under Section 1 of the present Rule 111,
culpa contractual or obligations
what is deemed instituted with the criminal
arising from law under Article 31 of
action is only the action to recover civil
the Civil Code, intentional torts
liability arising from the crime or ex delicto.
under Articles 32 and 34, and culpa
All other civil actions under Articles 32, 33,
aquiliana under Article 2176 of the
34 and 2176 of the Civil Code are no longer
Civil Code; or
deemed instituted, and may be filed (b) Where the injured party is granted
separately and prosecuted a right to file an action
independently even without any independent and distinct from the
reservation in the criminal action. The criminal action under Article 33 of
failure to make a reservation in the criminal the Civil Code.
action is not a waiver of the right to file a
separate and independent civil action based Either of these liabilities may be enforced
on these articles of the Civil Code. Verily, the against the offender subject to the caveat
civil actions based on these articles of the under Article 2177 of the Civil Code that the

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 KVYN NOTES

plaintiff cannot recover damages twice for employers employer may

the same act or omission of the defendant subsidiary liability is proceed even without
and the similar proscription against double to be based the erring employee
recovery. -Before the being impleaded
employers -While the employer
subsidiary liability is civilly liable in a
Elcano vs Hill, GR No. L-24803 may be proceeded subsidiary capacity
against, it is for the employees
A separate civil action lies against the imperative that there criminal negligence,
offender in a criminal act, whether or not he should be a criminal the employer is also
is criminally prosecuted and found guilty or action whereby the civilly liable directly
acquitted, provided that the offended party employees criminal and separately for his
is not allowed, if he is actually charged also negligence or delict own civil negligence
criminally, to recover damages on both and corresponding in failing to exercise
scores, and would be entitled in such liability therefor are due diligence in
eventuality only to the bigger award of the proved selecting and
two, assuming the awards made in the two -If no criminal action supervising his
cases vary. was instituted, the employee.
employers liability
would not be
Thus, for instance, a reckless driver may be predicated under Art
held civilly liable in the criminal case where 103
he was convicted of reckless imprudence.
The civil liability in this case is liability ex
delicto. Should the employee be found to be An employers liability based on a
insolvent, the civil aspect may be enforced quasi-delict is primary and direct, while
against his employer under Art 103 of the the employers liability based on a
RPC. delict is merely subsidiary.
In the meantime, the employer may also be
facing a civil action for quasi delict
proceeding from his vicarious liability as GR: Pre-existing contract between the
employer of the reckless driver under Article parties bar the applicability of the law on
2180, par 5 of the Civil Code. quasi-delict
In the above instances, the plaintiff cannot EXC: However, in a number of cases, the
recover damages twice for the same act or mere existence of a contract does not
omission of the defendant. He will then automatically negate the existence of quasi-
have to choose which favourable judgment delict
to enforce.

Employers Subsidiary Liability vs >The act that breaks the contract

Primary Liability may also be a tort (Air France
Case)
Art 103 RPC- Art 2180 CC-
Subsidiary Primary -involving an airplane passenger
Liability originates Liability of employer who, despite his first-class ticket,
from a delict here is primary and had been illegally ousted from his
committed by the direct pursuant to first-class accommodation and
employee who is doctrine of vicarious compelled to take a seat in the
primarily liable liability tourist compartment, was held
therefor and upon -in consequence, the entitled to recover damages from
whose primary civil action for quasi the air-carrier, upon the ground of
liability his delict against the tort on the latters part, for,

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 KVYN NOTES

although the relation between selection and diligence

the passenger and a carrier is supervision of
contractual both in origin and employees
nature. . . the act that breaks
the contract may also be a tort
Q. Can one institute a civil case against
(Air France vs Carrascoso, 18
different sets of defendants, one based
SCRA 155)
on culpa contractual and the other
based on culpa aquiliana?
>An academic institution, however,
may be held liable for tort even if it A. AFFIRMATIVE. In case of injury to a
has an existing contract with its passenger due to the negligence of the
students, since the act that violated driver of the bus on which he was riding and
the contract may also be a tort the driver of another vehicle, the drivers as
(Regino vs Pangasinan Colleges of well as the owners of the two vehicles are
Science and Tech., GR No. jointly and severally liable for damages.
156109) (Construction Development Corporation
of the Philippines vs Estrella, et al, GR
No. 147791)
Culpa
Aquiliana/Culpa Culpa Contractual
Extra Contractual Q. But what if instead of filing one case
Culpa here is Culpa here is founded on both culpa aquiliana and
substantive and considered as an culpa contractual, the victim files two
independent, which accident in the separate cases, one founded on culpa
of itself constitutes performance of an aquiliana and the other founded on
the source of an obligation already culpa contractual, but both operating
obligation between existing under the same set of facts and arising
persons not formerly from the same factual circumstances?
connected by any A. SC in the case of Joseph vs Bautista, GR
legal tie No. 41423 intimated that this may not be
Negligence is direct Negligence is only done because while there may be several
and primary incidental to the rights of action, there is but a single cause of
performance of the action.
obligation
Governed by Article Governed by Articles
2176 of the Civil 1170 to 1174 of the
Of course a party may opt not to file
Code and the Civil Code
separate suits but instead institute but one
immediately
case and allege alternative causes of action
following Articles
for culpa contractual and culpa aquiliana.
The negligence or In breach of contract,
fault should be the action can be It is permitted for a party to allege
clearly established prosecuted merely by alternative causes of action and join as many
because it is the proving the existence parties as may be liable on such causes of
basis of the action of the contract and action so long as plaintiffs do not recover
the fact that the twice for the same injury
obligor, in this case
the common carrier,
failed to transport his Chapter 2Elements of Quasi-delict
passenger safely to
his destination
Only calls for due Requires
diligence in the extraordinary
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 KVYN NOTES

An action for quasi-delict is founded on extraordinary diligence, negligence,

the existence of negligent act. care i.e., such and consists
care and of an entire
Negligence
diligence as absence of
-is statutorily defined to be the omission of an ordinarily care or an
that degree of diligence which is required by prudent absence of
the nature of the obligation and person would even slight
corresponding to the circumstances of exercise care or
persons, time and place under the diligence;
same or It implies a
-conduct which creates undue risk of harm to similar thoughtless
another, the failure to observe that degree of circumstance disregard for
care, precaution and vigilance that the consequence
circumstance justly demand, whereby that s or an
other person suffers injury indifference
to the rights
or welfare of
Test to determine existence of others
negligence
Did the defendant in doing the alleged Degree of care required of an
negligent act use that reasonable care and automobile operator
caution which an ordinarily prudent person
would have used in the same situation? If In determining the degree of care an
not, then he is guilty of negligence operator of an automobile should use, when
on the highway, it is proper to take into
The question as to what would constitute the consideration the place, presence or absence
conduct of a prudent man in a given of other travellers, the speed of the
situation must of course be always automobile, its size, appearance, manner of
determined in the light of human experience movement, and the amount of notice it
and in view of the facts involved in the makes, and anything that indicates unusual
particular case. or peculiar danger.

Foreseeability of harm indispensable Care and caution required of a child of

tender yrs
Thus, in a case where the Supreme Court
found that the actor could not have While it is the general rule in regard to an
reasonably foreseen the harm that would adult that entitle him to recover damages for
befall him, it was ruled that he was not guilty an injury resulting from the fault or
of negligence. (Civil Aeronautics negligence of another he must himself have
Administration vs CA, GR No. L-51806) been free from fault, such is not the rule in
regard to an infant of tender years. The care
Degrees of Negligence
and caution required of a child is
1. Slight Negligence according to his maturity and capacity
2. Ordinary Negligence only, and this is to be determined in each
3. Gross Negligence case by the circumstance of the case.
(Taylor vs Manila Electric Railroad, GR
No. 4977)
Slight Ordinary Gross
Failure to Want of Materially
exercise ordinary care greater than But boys 10 or 12 years of age who are
great or and ordinary permitted to go about unattended may fairly

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 KVYN NOTES
be presumed to have sense enough to take
care of themselves from the ordinary and
usual dangers of street traffic. (US vs
Knight, GR No. 8561)
Coachman left his teamnot negligent
A coachman or driver, who had driven the
horses composing his team for a
considerable time, during which the animals
have shown no disposition to become unruly,
left his team as usual and was assisting in
unloading the wagon when the horses bolted
and running into the plaintiffs carriage
caused personal injuries to the plaintiff and
damage to the vehicle was not held guilty of
negligence where it was shown that to leave
teams under like circumstances and to assist
in unloading the wagon, is the custom of
drivers in the city and that the custom is
sanctioned by employers. Acts, the
performance of which has not proven
destructive or injurious and which have been
generally acquiesced in by society for so
long a time as to have ripened into a custom,
cannot be held to be unreasonable or
imprudent and that, under the
circumstances, the driver was not guilty of
negligence in so leaving his team while
assisting in unloading his wagon. (S.D.
Martinez vs Buskirk, GR No. L-5691)
Degree of care required of a minor
A minor should not be held to the same
degree of care as an adult, but his conduct
should be judged according to the average
conduct of persons of his age and
experience. The standard of conduct to
which a child must conform for his own
protection should that degree of care
ordinarily exercised by children of the same
age, capacity, discretion, knowledge and
experience under the same or similar
circumstances. (Ylarde, et. al vs Aquino,
et. al., GR No. L-33722)
Diligence required of a Bank
6
The banking business is impressed with
public interest. Consequently, the highest
degree of diligence is expected, and high
standards of integrity and performance are
even required of it. By the nature of its
functions, a bank is under obligation to treat
the accounts of its depositors with
meticulous care. (Associated Bank vs Tan,
GR No. 156940)
Diligence required of Electric
Companies
High degree of diligence is demanded among
electric companies considering that
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.
Mere intoxication not negligence
Mere intoxication is not negligence, nor does
the mere fact of intoxication establish a want
of ordinary care. If a persons conduct is
characterized by a proper degree of care and
prudence, it is immaterial whether he is
drunk or sober. (Wright vs Manila Electric
Company, GR No. 7760)
Diligence required
If the law or contract does not state the
diligence which is to observed in the
performance, that which is expected of a
good father of a family shall be required.
Proximate Cause
But to constitute quasi-delict, it is not
enough to establish negligence. It is equally
imperative that the fault or negligence be
the proximate cause of the damage or injury
suffered by the plaintiff.
 KVYN NOTES
that cause, which, in natural and continuous
sequence, unbroken by any efficient
intervening cause, produces the injury, and
without which the result would not have
occurred.
We seem to have also adopted the above
but-for test because the 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 vs CA, GR No.
57079)
Concurrence of efficient causes
In order to render a person liable, negligence
need not be the sole cause of an injury. It is
sufficient that his negligence, concurring
with one or more efficient causes other than
plaintiffs, is the proximate cause of the
injury.
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 CA, GR No. 130068)
Burden of Proof
The person who alleged negligence must
prove it. (Cea vs Villanuevea, GR No. L-
5446)
Whosoever relies on negligence for his cause
of action has the burden in the first instance
7
of proving the existence of the same if
contested, otherwise his action must fail.
(PLDT vs CA)
If negligence is not established, there
can be no damages
Where it appears that an injury was received
in an accident*, without the intervention of
negligence of any kind, no damages can be
recovered by reason of such injury. (Brown
vs Manila Electric Railroad and Light
Company, GR No. 6666)
*accident-an occurrence by chance,
and not as expected
Presumptions of negligence
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. (Art 2184)
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. (Art 2185)
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 motor
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 CA, GR No. 130003)
 KVYN NOTES
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.
(Art 2188)
Res Ipsa Loquitor
-The thing speaks for itself
-Rebuttable presumption or inference that
defendant was negligent, which 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 Loquitor 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 the thing
which caused injury is shown to have been
under management and control of
alleged wrongdoer.
-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
Resort to Res Ipsa Loquitorallowed
only when
8
(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
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.
The doctrine can be invoked when and
only when, under the circumstances
involved, direct evidence is absent and
not readily available
-It has generally been held that the
presumption of inference arising from
the doctrine cannot be availed of, or is
overcome, where plaintiff has
knowledge and testifies or presents
evidence as to the specific act of
negligence which is the cause of the
injury complained of or where there is
direct evidence as to the precise cause
of the accident and all the facts and
circumstances attendant on the
occurrence clearly appear.
Res ipsa loquitor is an evidentiary
presumption, therefore, it is not to be
invoked to overcome evidence but to be
applied only in its absence. Hence, whenever
the doctrine is applied, the query is not
whether the accident rarely happens, but
that whether when it occurs, it is ordinarily
the result of negligence.
Where the doctrine is applicable, all that the
plaintiff must prove is the accident itself; no
other proof of negligence is required beyond
the accident itself.
 KVYN NOTES

The doctrine rests on inference and not on
presumption. The facts of the occurrence
warrant the supposition of negligence and
they furnish circumstantial evidence of
negligence when direct evidence is lacking.
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)
NOTE: make sure to read art 2180

The doctrine provides a means by which a

The responsibility imposed arises by virtue of
plaintiff can pin liability on a defendant who,
a presumption juris tantum of negligence on
if innocent, should be able to explain the
the part of the persons made responsible
care he exercised to prevent the incident
under the article, derived from their failure to
complained of. Thus, it is the defendants
exercise due care and vigilance over the acts
responsibility to show that there was no
of subordinates to prevent them from
negligence on his part.
causing damage.

Chapter 3Nature of Liability

Liability of tortfeasors
The responsibility of two or more persons
who are liable for quasi-delict is solidary
and the sharing as between such solidary
debtors is pro-rata.
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.
The release of one tortfeasor does not
operate to release the others. (p.37
Largo 2009)
Thus, the last paragraph of the article says
that such responsibility ceases if it is proved
that the persons who might be held
responsible under it exercised the diligence
of a good father of a family (diligentissimi
patris familias) to prevent damage.
Vicarious liability is a PRIMARY and
DIRECT
Although the negligence is simply imputed in
the sense that it arises from the act or
omission of the person under ones care or
control, the act being punished is the
negligent act of the one made vicariously
liable. Hence, he may be proceeded against
singly or together with the person for whose
acts or omissions he is made answerable for.
Persons vicariously liable under the law
1. Parents
2. Guardians
3. Employers
4. Owner of vehicle
5. State
6. Provinces, cities and municipalities
7. Teachers and heads of establishments
of arts and trade
8. Proprietor of building or structure

Vicarious Liability of Parents

Doctrine of Vicarious Liability

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 KVYN NOTES

The father and, in case of his death or and third paragraph of Art 2180 of the
incapacity, the mother, are responsible for Civil Code.
the damages caused by the minor children
who live in their company. (Art 2180)
Justification for the above rule
It lies in the requirement of the law that for
The civil liability imposed upon parents for
the vicarious liability to arise the child must
the torts of their minor children living with
live in the company of their parents. Under
them, may be seen to be based upon the
our custom, for as long as the child lives in
parental authority vested by the Civil Code
the company of the parents, the latter can
upon such parents.
and still do supervise them.
Parental liability is, in other words, anchored
upon the parental authority coupled with
presumed parental dereliction in the Who between the natural and the
discharge of the duties accompanying such adopting parents may be held liable?
authority.
Under Article 35 of the Child and Youth
Welfare Code, parental authority is
provisionally vested in the adopting parents
Parents and other persons exercising
during the period of trial custody, i.e. before
parental authority shall be civilly liable for
the issuance of a decree of adoption,
the injuries and damages caused by the acts
precisely because the adopting parents are
or omissions of their unemancipated children
given actual custody of the child during such
living in their company and under their
trial period. In the instant case, the trial
parental authority subject to the appropriate
custody period either had not yet begun or
defenses provided by law.
had already been completed at the time of
the air rifle shooting; in any case, actual
custody of Adelberto was then with his
Vicarious liability of parents does not
natural parents, not the adopting parents.
end until the child reaches the age of
(Tamargo et al, vs CA, GR No. 85044)
21
After the effectivity of the Family Code, RA
6809 was passed lowering the age of Vicarious Liability of Guardians
majority from 21 to 18. Thus parental
Guardians are liable for damages caused by
authority now ends when the child reaches
the minors or incapacitated persons who are
the age of 18 instead of 21.
under their authority and live in their
BUT company. If the minor or insane person
causing damage has no parents or guardian,
Even if the age of majority has been lowered
the minor or insane person shall be
to 18, the vicarious liability of parents over
answerable with his own property in an
children living in their company extends
action against him where a guardian ad litem
until these children reach the age of 21. This
shall be appointed.
is the import of the provision of RA 6809
which states that unless otherwise
provided, majority commences at the age of
Three Kinds of Guardians
18 years. BUT nothing in this Code shall
be construed to derogate from the duty 1. Legal Guardian
or responsibility of parents and
guardians for children and wards below -a guardian who is such by provision of
21 yrs of age mentioned in the second law without need of judicial appointment,
as in the case of parents over the persons
of their minor children, or father, or in his
10
 KVYN NOTES

absence, the mother with respect to the functions

property of the minor children not
exceeding P2,000.00 in value;
2. Guardian ad litem
*does not apply to a mere manager like the
manager of a trucking company. What the
law means is more of an employer (Phil
Rabbit vs Phil-American Forwarders,63
SCRA 232)

-who may be any competent person -director in the Spanish version

appointed by the court for purposes of a
particular action or proceeding involving a
minor; and
3. Judicial Guardian
-who is a competent person appointed by
the court over the person and/or property
of the ward to represent the latter in all
his civil acts, and transactions.
Vicarious liability of employers
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. (Art 2180 par 4)
Employers shall be liable for the damages
caused by their employees and household
helpers acting within the scope of their
assigned tasks, even though the former are
not engaged in any business or industry.
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, GR No.
132266)
Art 1759 Civil Code
In breach of contract of carriage, Article 1759
of the Civil Code expressly makes the
common carrier liable for the intentional
assaults committed by its employees upon
its passengers.
The basis of the carriers liability for assaults
on passengers committed by its drivers rests
either on:

Distinction of par 4 and 5 of Art 2180 (1) Respondent superior, or

(2) The principle that it is the carriers
Par 4 Par 5
Applies to owners Applies to employers implied duty to transport the
and managers* of an in general, whether passenger safely
establishment or or not engaged in
enterprise any business or
industry (er-ee Thus it is clear from the above Civil Code
relationship must be provision that common carriers cannot
established) escape liability for the death of or injuries to
Covers negligent acts Encompasses passengers through the negligence and wilful
of employees negligent acts of acts of the formers employees, although
committed either in employees acting such employees may have acted beyond the
the service of the within the scope of scope of their authority or in violation of the
branches or on the their assigned task orders.
occasion of their
11
 KVYN NOTES
Liability of the employer under Art 2180
direct
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, GR No. 154278)
Employee must be in actual
performance of his assigned task or
duties
Before an employer may be held liable for
the negligence of his employee, the act or
omission which caused the damage must
have occurred while an employee was in the
actual performance of his assigned tasks or
duties. (Francis High School vs CA, 194
SCRA 341)
In defining an ERs liability for the acts done
within the scope of the employees assigned
tasks, the SC has held that this includes any
act done by an employee, in furtherance of
the interests of the employer or for the
account of the employer at the time of the
infliction of the injury or damage.
Castilex Industrial Corp vs Vasquez et
al, GR No. 132266
-it has been held that an employee who uses
his employers vehicle in going from his work
to a place where he intends to eat or in
returning to work from a meal is not
ordinarily acting within the scope of his
employment in the absence of evidence of
some special business benefit to the
employer. Evidence that by using the
employers vehicle to go to and from meals,
an employee is enabled to reduce his time-
off and so devote more time to the
12
performance of his duties supports the
findings that an employee is acting within
the scope of his employment while so driving
the vehicle.
Special Errand or Roving Commission
Rule
The employer may, however, be liable where
he derives some special benefit from having
the employee drive home in the employers
vehicle as when the employer benefits from
having the employee at work earlier and
presumably, spending more time at his
actual duties. Where the employees duties
require him to circulate in a general area
with no fixed place or hours of work, or to go
to and from his home to various outside
places of work, and his employer furnishes
him with a vehicle to use in his work, the
courts have frequently applied what has
been called the special errand or
roving commission rule, under which it
can be found that the employee continues in
the service of his employer until he actually
reaches home. HOWEVER, even if the
employee be deemed to be acting within the
scope of his employment in going to or from
work in his employers vehicle, the ER is not
liable for his negligence where at the
time of the accident, the employee has
left the direct route to his work or back
home and is pursuing a personal errand
of his own. (Castilex case)
Even where the employers personal purpose
in using the vehicle has been accomplished
and he has started to return trip to his house
where the vehicle is normally kept, it has
been held that he has not resumed his
employment, and the employer is not liable
for the employees negligent operation of the
vehicle during the return trip.
Part-time janitor is an employee
However, on MR, the SC reconsidered its
decision and ruled that Funtecha being a
working student (part-time janitor) and a
scholar of Filamer, he was, in relation to the
 KVYN NOTES
school, an employee even if he was assigned
to clean the school premises for only 2 hours
in the morning of each school day.
Presumption in law that ER is negligent
When an injury is caused by the negligence
of an employee there instantly arises a
presumption of the law that there was
negligence on the part of the employer
either in the selection of his employee or in
the supervision over him after such
selection. The presumption however may be
rebutted by clear and showing on the part of
the employer that it had exercised the care
and diligence of a good father of a family in
the selection and supervision of his
employee.
Under the civil law, an employer is liable for
the negligence of his employees in the
discharge of their respective duties, the
basis of which liability is not respondeat
superior, but the relationship of pater
familias, which theory bases the liability of
the master ultimately on his own negligence
and not on that of his servant. (Cuison vs
Norton and Harrison Co., 55 Phil 18)
Liability of ER under Art 2180 is direct
and immediate NOT subsidiary
Under Art 2180 of the Civil Code, the liability
of the employer is direct and immediate. It is
not conditioned upon prior recourse against
the negligent employee and a prior showing
of insolvency of such employee.
ER is negligent in the selection and
supervision
Thus, when an employee, while performing
his duties, causes damage to persons or
property due to his own negligence, there
arises the juris tantum presumption that the
ER is negligent in the supervision over him
after the selection.
13
ERs have the burden of proving that they
have indeed exercised such diligence, both in
the selection of the employee and in the
supervision of the performance of his duties.
Case law teaches that for an ER to have
exercised the diligence of a good father of a
family, he should not be satisfied with the
applicants mere possession of professional
drivers license; he must also carefully
examine the applicant for employment as to
his qualifications, his experience and record
of service.
In a case, it was ruled that the ER did not
exercise due supervision after his selection
when it was noted that the ER did not
present any proof that she drafted and
implemented training programs and
guidelines on road safety for her employees.
The record is bare of any showing that the ER
required the EE (Venturina) to attend periodic
seminars on road safety and traffic efficiency.
Hence, the ER cannot claim exemption from
any liability arising from the recklessness or
negligence of Venturina.
Due diligence in the supervision of EEs
On the other hand, with respect to the
supervisions of EEs, ERs should formulate
standard operating procedures, monitor their
implementation, and impose disciplinary
measures for breaches thereof. To establish
these factors in a trial involving the issue of
vicarious liability, ERs must submit concrete
proof, including documentary evidence
ER must support his testimonial
evidence with concrete or documentary
evidence. The reason for this is to
obviate the biased nature of the ERs
testimony or that of his witnesses.
The alleged police clearance was not
however presented nor the results of
Sablayans driving test. The records of the
regular inspections that mechanic allegedly
conducted were not also produced. The SC
ruled that unsubstantiated and self-serving
testimonies were, without doubt, insufficient
to overcome the legal presumption that
 KVYN NOTES

there was negligence in the selection and the negligence either a felony committed
supervision of the erring driver. in the selection or by his employee in
supervision of their the discharge of his
employees. duty
Registered owner of a motor vehicle -The civil action -this liability attaches
still liable if the sale is not registered against the employer when the employee
may therefore is convicted of a
In an action based on quasi delict, the proceed crime done in the
registered owner of a motor vehicle is independently of the performance of his
solidarily liable for the injuries and damages criminal action work and is found to
caused by the negligence of the driver, in pursuant to Rule 111 be insolvent that
spite of the fact that the vehicle may have Section 3 of the ROC renders him unable
already been subject of an unregistered -the liability of the ER to properly respond
Deed of Sale in favour of another person. for the negligent to the civil liability
Unless registered with the LTO, the sale conduct of the adjudged
while valid and binding between the parties subordinate is direct -In order that an ER
does not affect third parties, especially the and primary subject may be held
victims of accidents involving the said to the defense of due subsidiarily liable for
transport equipment. Thus, in a case the diligence in the the EEs civil liability
registered owner was held liable for the selection and in the criminal action,
acts of the driver employed by its supervision of the it need only be
former lessee who has become the employee. shown
owner of that vehicle by virtue of an -the enforcement of (1) that the ER,
unregistered Deed of Sale. (Equitable the judgment against etc is engaged in
Leasing Corporation vs Suyom, GR No. the ER for an action any kind of
143360) based on Art 2176 industry,
does not require (2) that the EE
the employee to be committed the
Mere manager not contemplated as ER insolvent since the offense in the
that is to be held vicariously liable nature of the liability discharge of his
of the employer with duties and
It may be gathered from the context of Art
that of the EE, the (3) that he is
2180 that the term manager is used in the
two being statutorily insolvent
sense of employer. Hence, under the
considered joint
allegations of the complaint, no tortious or
tortfeasors, is -The subsidiary
quasi-delictual liability can be fastened on
solidary. liability of the ER
the manager of Phil-American Forwarders,
-when an EE causes arises after
Inc. in connection with the vehicular accident
damage, the law conviction of the EE
already mentioned because he himself may
presumes that the ER in the criminal action
be regarded as an employee or dependiente
has himself -Before the ERs
of his employer, Phil-American Forwarders,
committed an act of subsidiary liability
Inc. (Philippines Rabbit Bus Lines vs
negligence in not may be proceeded
Phil-American Forwarders, 63 SCRA
preventing or against, it is
232)
avoiding the damage imperative that there
should be a criminal
action whereby the
Employers vicarious liability vs EEs criminal
Employers subsidiary liability negligence or delict
Art 2180 NCC- Art 103 RPC- and corresponding
Vicarious Subsidiary liability therefor are
-Employers are -ER may be held proved. If no criminal
primarily liable for subsidiarily liable for action was instituted,

14
 KVYN NOTES

the ERs liability aggrieved party. As between him and his

would not be
predicated under Art
103.
-the conviction of the
EE primarily liable is
a condition sine qua
non for the ERs
subsidiary liability.
There can be no
automatic subsidiary
liability of defendant
ER under Art 103 RPC
where his EE has not
been previously
criminally convicted
While the ER is civilly liable in a subsidiary
capacity for the EEs criminal negligence, the
ER is also civilly liable directly and separately
for his own civil negligence in failing to
exercise due diligence in selecting and
supervising his EE.
employee, the ER is not really held legally
liable because he can always recover what
he has paid from the erring EE.
Vicarious liability of owner of vehicle
-In motor vehicle mishaps, the owner is
solidarily liable for with his driver, if the
former, who was in the vehicle, could have,
by the use of the due diligence, prevented
the misfortune.
-The owner of an automobile, present in the
vehicle, is not liable for the negligent acts of
a competent driver unless such acts are
continued for such a length of time as to give
the owner a reasonable opportunity to
observe them and to direct the driver to
desist therefrom, and fail to do so.
-An owner of a vehicle cannot be held liable
for an accident involving the said vehicle if
the same was driven without his consent or
knowledge and by a person not employed by
him.

EE not indispensable party in action Vicarious liability of State

based on quasi-delict
However, since the ERs liability in an action
for a quasi-delict is not only solidary, it is
also primary and direct, the driver is not an
indispensable party to the final resolution of
the action for damages against the ER.
Where the obligation of the parties
solidary, either of the parties
indispensable, and the other is not even
necessary party because complete relief
available from either.
ER can recover what he has paid to the
third party from his EE
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.
The ER is held solidarily liable only for
purposes of enforcement of liability by the
The Government of the Philippine Islands is
not liable in damages for the negligent acts
of its regular officer or employees in the
performance of their ordinary functions.
The State is responsible only when it
acts through a special agent.
is
is
a
Two aspects of the Liability of the State
is
1. Its public or governmental aspects
where it is liable for the tortious acts
of SPECIAL AGENTS only
2. Its private or business aspects (as
when it engages in private
enterprises) where it becomes liable
as an ordinary employer
States agent is a public official
The States agent, if a public official, must
not only be specially commissioned to do a
15
 KVYN NOTES
particular task but that such task must be
foreign to said officials usual governmental
functions.
States agent is not a public official
If the States agent is not a public official,
and is commissioned to perform non-
governmental functions, then the State
assumes the role of an ordinary employer
and will be held liable as such for its agents
tort. Where the government commissions a
private individual for a special governmental
task, it is acting through a special agent
within the meaning of the provision.
Special Agent
Is one who receives a definite and fixed order
or commission, foreign to the exercise of the
duties of his office if he is a special official,
so that in representation of the state and
being bound to acts as an agent thereof he
executed the trust confided to him.
Art 2180 establishes a rule of liability
not suability
The government may be held liable under
this rule only if it first allows itself to be sued
through any of the accepted forms of
consent. Moreover, the agent performing his
regular functions is not a special agent even
if he is so denominated, as in the case at bar.
(US vs Guinto, GR No. 76607)
Provinces, Cities and Municipalities
provinces, cities and municipalities shall be
liable 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.
Under Art 2189 NCC, it is not necessary for
the liability therein established to attach that
the defective roads or streets belong to the
16
province, city or municipality from which
responsibility is exacted. What said articles
requires is that the province city or
municipality have either control or
supervision over said street or road. Thus,
even if the subject avenue were a national
highway, this circumstance would not
necessarily detract from its control or
supervision by the subject local government
unit.
Vicarious liability of teachers and heads
of establishments of arts and trade
Teachers or heads of establishments of arts
and trades shall be liable for damages
caused by their pupils and students or
apprentices, so long as they remain in their
custody. [Art 2180 (7)]
Teacher generally is liable for acts of
their students except when the school
is technical in nature in which case it is
the head that is liable
In Amadora vs CA, GR No. L-47745, April 15,
1988, it was clarified that the provision in
Article 2180 of the Civil Code should apply
to all schools, academic as well as non-
academic. Where the school is academic
rather than technical or vocational in nature,
responsibility for the tort committed by the
student will attach to the teacher in charge
of such student, following the first part of the
provision. This is the general rule. IOW,
teachers in general shall be liable for the
acts of their students
EXCEPT
where the school is technical in nature, in
which case it is the head thereof who shall
be answerable.
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.
 KVYN NOTES
Following the canon of reddendo singular
singulis, teachers should apply to the
words pupils and students and heads of
establishments of arts and trades to the
word apprentices
Reason for the disparity
The head of the school of arts and trades
was such a master and so was personally
involved in the task of teaching his students,
who usually even boarded with him and so
came under his constant control, supervision
and influence. By contrast, the head of
academic school was not as involved with his
students and exercised only administrative
duties over the teachers who were the
persons directly dealing with the students.
The head of the academic school had then
(as now) only a vicarious relationship with
the students. Consequently, while he could
not be directly faulted for the acts of the
students, the head of the school of arts and
trades, because of his closer ties with them,
could be so blamed. It is conceded that the
distinction no longer obtains at present in
view of the expansion of the schools of arts
and trades, the consequent increase in their
enrolment, and the corresponding diminution
of the direct and personal contract of their
heads with the students. Article 2180,
however, remains unchanged. In its present
state, the provision must be interpreted by
the Court according to its clear and original
mandate until the legislature, taking into
account the changes in the situation subject
to be regulated, sees fit to enact the
necessary amendment.
So long as the students remain in their
custody
-Means the protective and supervisory
custody that the school and its head
teachers exercise over the pupils and
students for as long as they are at
attendance in the school, including recess
time
-There is nothing in the law that requires that
for such liability to attach, the pupil or
17
student who commits the tortious act must
live and board in the school, as erroneously
held by the dicta in Mercado (as well as in
Exconde) and which must now be deemed to
have been set aside by the decision in
Palisoc, et. al vs Brillantes, et. al
-In the view of the SC, the student is in the
custody of the school authorities as long as
he is under the control and influence of the
school and within its premises, whether the
semester has not yet begun or has already
ended.
-Neither should such discipline be deemed
ended upon the last day of classes
notwithstanding that there may still be
certain requisites to be satisfied for
completion of the course, such as submission
of reports, term papers, clearances and the
like. During such periods, the student is still
subject to the disciplinary authority of the
school and cannot consider himself released
altogether from observance of its rules.
-As long then as it can be shown that the
student is in the school premises
a) pursuing legitimate student
objective;
b) exercising legitimate student
right; and
c) even in enjoying a legitimate
student privilege, the responsibility of
the school authorities over the student
continues
-Indeed, even if the student should be doing
nothing more than relaxing in the campus in
the company of his classmates and friends
and enjoying the ambience and atmosphere
of the school, he is still within the custody
and subject to the discipline of the school
authorities under the provisions of Art 2180.
(Amadora vs CA, GR No. L-47745)
Teacher need not be physically present
at the time of the injury
Custody does not connote immediate and
actual physical control but refers more to the
influence exerted on the child and the
 KVYN NOTES
discipline instilled in him as a result of such
influence. Thus, for the injuries caused BY
the student, the teacher and not the parent
shall be held responsible if the tort was
committed within the premises of the school
at any time when its authority could be
validly exercised over him.
Teacher is liable even if the student is
not a minor
Unlike the parent, who will be liable only if
his child is still a minor, the teacher is held
answerable by the law for the act of the
student under him regardless of the
students age.
Recess
Temporary adjournment of school activities
where the student still remains within call of
his mentor and is not permitted to leave the
school premises, or the area within which the
school activity is conducted.
Special Parental Authority of schools
under Art 218 of the Family Code
This special authority and responsibility
applies to all authorized activities, whether
inside or outside the premises of the school,
entity or institution. Thus, such authority and
responsibility applies to field trips, excursions
and other affairs of the pupils and students
outside the school premises whenever
authorized by the school or its teachers. (St.
Marys Academy vs Carpitanos, et.al.,
GR No. 143363)
Those given the authority and responsibility
under Art 218 of the FC, the school, its
administrators and teachers shall be
principally and solidarily liable for
damages caused by the acts or omissions of
the unemancipated minor.
Student was injured by an outsiderArt
2180 does not apply
18
In PSBA vs CA, GR No. 84698, the Court held
that Art 2180 of the Civil Code was not
applicable where a student had been injured
by one who was an outsider or by one over
whom the school did not exercise any
custody or control or supervision.
Implicit or Built-In Obligation of Schools
Schools should provide their students with an
atmosphere that promotes or assists in
attaining its primary undertaking of
imparting knowledge. Certainly, no student
can absorb the intricacies of physics or
higher mathematics or explore the realm of
the arts and other sciences when bullets are
flying or grenades exploding in the air or
where there looms around the school
premises a constant threat to life and limb.
Necessarily, the school must ensure that
adequate steps are taken to maintain peace
and order within the campus premises and to
prevent the breakdown thereof.
School liable for negligent acts of its
professors
School may 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.
Vicarious liability of Proprietor of
building or structure
If the damage referred to in the two
preceding articles should be the result of any
defect in the construction mentioned in Art
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.
Chapter 4Defenses in an action for
quasi-delict
 KVYN NOTES
Plaintiffs own negligence
When the plaintiffs own negligence was the
immediate and proximate cause of his injury,
he cannot recover damages. (Art 2179)
Thus, in a case where petitioners failure to
examine his bank statement 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 SC 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 and 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.
Theory of implied invitation to visit the
premises of another
The owners of premises, therefore, whereon
things attractive to children are exposed, or
upon which the public are expressively or
impliedly permitted to enter to or upon which
the owner knows or ought to know children
are likely to roam about for pastime and in
play, must calculate upon this, and take
precautions accordingly. In such cases the
owner of the premises cannot be heard to
say that 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. (Taylor vs
Manila Electric)
In short, the owner of the premise which is
the defendant in a case cannot use the
defense that the injury was caused by the
plaintiffs (child) own negligence.
19
Doctrine of Attractive Nuisance
One who maintains on his premises
dangerous instrumentalities or appliances of
a character likely to attract children in play,
and who fails to exercise ordinary care to
prevent children from playing therewith, or
resorting thereto, is liable to a child of tender
years who is injured thereby, even if the
child is technically a trespasser in the
premises.
HOWEVER
The doctrine 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
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. (Ylarde vs
Aquino, GR No. L-33722)
Assumption of risk/ Volenti Non fit
Injuria
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
Thus, considering the nature of the task of
emptying the 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.
Where the animal was also in the custody
and under the control of the caretaker, who
 KVYN NOTES
was paid for his work as such, being injured
by the animal under those circumstances
was one of the risks of the occupation which
he had voluntarily assumed and for he must
take the consequences. Obviously, it was the
caretakers business to try to prevent the
animal from causing injury or damage to
anyone, including himself.
Assumption of risk does not apply when
there is an emergency
Thus, where the deceaseds property, a
source of livelihood, was faced with an
impending loss and the deceased, at the
time the fatal incident occurred, was at a
place where she had a right to be as she was
on her way to protect her merchandise, it
was held that the heirs may not be barred
from recovering damages as a result of the
death caused by electric companys
negligence. (Ilocos Norte Electric
Company vs CA, GR No. 53401)
Doctrine of Last Clear Chance
a person who has the last clear chance or
opportunity of avoiding an accident,
notwithstanding the negligent acts of his
opponent or the negligence of a third person
which is imputed to his opponent, is
considered in law solely responsible for the
consequences of the accident.
Other names of Doctrine of Last Clear
Chance
1. Doctrine of Discovered peril
2. Humanitarian Doctrine
3. Doctrine of intervening negligence
4. Known danger rule
5. Rule of Davies vs Mann
It will be noted that the negligent acts of the
two parties were not contemporaneous,
since the negligence of the defendant
succeeded the negligence of the plaintiff by
an appreciable interval. Under these
circumstances, the law is that a person who
20
has the last clear chance to avoid the
impending harm and fails to do so is
chargeable with the consequences, without
reference to the prior negligence of the other
party. (Picart vs Smith, 37 Phil 809)
He must be aware or should have been
aware of the peril
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
Doctrine of Last Clear Chance not
applicable
1. In a case where a person is to act
instantaneously, and the injury cannot
be avoided by using all means
available after the peril is or should
have been discovered
2. Does not apply in 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
3. Not applicable to cases other than
vehicular accidents. As was held by
the SC in De Roy vs CA.
(De Roy Memory Hook-firewall
collapsed and destroyed a
tailoring shop)
Emergency Rule
One who suddenly finds himself in a place of
danger, and is required to act without time to
consider the best means that may be
adopted to avoid the impending danger, is
not guilty of negligence, if he fails to adopt
what subsequently and upon reflection may
appear to have been a better method,
unless the emergency in which he finds
himself is brought about by his own
negligence. (Gan vs CA, GR No. 165 SCRA
378)
 KVYN NOTES

A woman driving a vehicle suddenly crippled Negligence

by a flat tire on a rainy night will not be Act or omission Where both parties
faulted for stopping at a point which is both amounting to want of are guilty of
convenient for her to do so and which is not ordinary care on the negligence, but the
a hazard to other motorists. (Valenzuela vs part of the person negligent acts of one
CA, GR No. 115024 & 117944) injured which, succeeds that of the
concurring with the other by an
defendants appreciable interval
Prescription negligence, is the of time, the one who
proximate cause of has the last
-Begins from the day the quasi-delict is the injury. reasonable
committed opportunity to avoid
-In case of collision, the 4 year prescriptive the impending harm
period must be counted from the day of the and fails to do so is
collision. chargeable with the
consequences,
-The aggrieved party need not wait for a without reference to
determination by an administrative body like the prior negligence
the Board of Marine Inquiry, that the collision of the other party
was caused by the fault or negligence of the
other party before he can file an action for
damages. (Kramer vs CA, GR No. 83524) Children below 9 years old is incapable
of contributory negligence
A person under 9 years of age is
Diligence of good father of family CONCLUSIVELY presumed to have acted
without discernment, and is, on that account,
In the case of employer held vicariously
exempt from criminal liability. The same
liable, the proper defense is the exercise of
presumption and a like exemption from
diligence of a good father of the family and
criminal liability obtains in a case of a person
the selection and supervision of his
over nine and under fifteen years of age,
employees.
unless it is shown that he has acted with
NOTE: this defense is available only in culpa discernment. Since negligence may be a
aquiliana cases and not in culpa contractual felony and a quasi-delict and required
discernment as a condition of liability, either
criminal or civil, a child under 9 years of age
Partial Defense: is, by analogy, conclusively presumed to be
incapable of negligence.
Doctrine of Contributory Negligence
The rule, therefore, is that a child under 9
When the plaintiffs own negligence was the years of age must be conclusively presumed
immediate and proximate cause of his injury, incapable of contributory negligence as a
he cannot recover damages. But if his matter of law. (Jarco Marketing Corp vs
negligence was only contributory, the CA, GR No. 129792)
immediate and proximate cause of the injury
being the defendants lack of due care, the
plaintiff may recover damages, but the Extent of mitigation
courts shall mitigate the damages to be
awarded. (Art 2179) 1. 50% in Rakes vs AG&P;
2. 20% in Phoenix Construction, Inc. vs
IAC
3. 40% in BPI vs CA
Doctrine of Doctrine of Last
Contributory Clear Chance

21
 KVYN NOTES
Thus, in a case where one has imbibed one
or two bottles of beer and was not wearing a
protective helmet, the SC ruled that the heirs
of the deceased may recover damages only
up to 50% of the award and 50% of the
damage shall be borne by them. (Lambert
vs Castillon et al, GR No. 160709)
The defense of contributory negligence does
not apply in criminal cases committed
through reckless imprudence, since one
cannot allege the negligence of another to
evade the effects of his own negligence.
(Genobiagon vs CA, GR No 40452)
Chapter 5Enforcement of Liability
Available Remedies
an act or omission causing damage to
another may give rise to two separate civil
liabilities on the part of the offender, i.e.
(1) Civil liability ex delicto; and
(2) Independent civil liabilities, such as
those
(a) Not arising from an act or omission
complained of as 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
22
recovery. (Sps. Santos, et al vs Pizardo,
et al., GR No. 151452)
No more need to reserve the right to
file a civil action in cases of the
Independent Civil Actions under Art 32,
33, 34 and 2176.
The SC held that there is NO more need for
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 21776 of the Civil Code of the
Philippines arising from the same act or
omission which may be prosecuted
separately even without a reservation.
Acquittal in the criminal action does not
extinguish the civil liability based on
quasi delict
In the criminal case for reckless imprudence
resulting in serious physical injuries, the
judgment of acquittal does not operate to
extinguish the civil liability of the defendant
based on the same incident. The civil action
is entirely independent of the criminal case
according to Articles 33 and 2177 of the Civil
Code.
The only exception is when the extinction
proceeds from a declaration from a final
judgment that the fact from which the civil
action might arise did not exist.
Negligent act may give rise to a
complaint founded on both culpa
aquiliana and culpa contractual
Where the injury is due to the concurrent
negligence of the drivers of the colliding
vehicles, the drivers and owners of the said
vehicles shall be primarily, directly and
solidarily liable for damages and it is
immaterial that one action is based on quasi-
 KVYN NOTES
delict and the other on culpa-contractual, as
the solidarity of the the obligation is justified
by the very nature thereof.
Joint tort feasors are liable solidarily
It is no defense for one sued alone, that the
others who participated in the wrongful act
are not joined with him as defendants; nor is
it any excuse for him that his participation in
the tort was insignificant as compared to that
of the others. Joint tort feasors are not liable
pro rata. The damages cannot be
apportioned among them, except among
themselves.
A payment in full for the damage done, by
one of the joint tortfeasors, 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.
Insurer not held solidarily liable with
the insured
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.
Actions for damages caused by tortious
conduct of the defendant survive the
death of the latter. (Melgar, et. al vs
Buenviaje, et.al, GR No. 55750)
Chapter 6Strict Liability Torts
23
STRICT LIABILITY TORT
-a.k.a. Liability without fault
-is said to be applicable in situations in which
social policy requires that defendant make
good the harm which results to others from
abnormal risks which are inherent in
activities that are not considered
blameworthy because they are reasonably
incident to desirable industrial activity
-the liability is strict in the sense that it
is unnecessary to prove the defendants
negligence
-this branch of tort seeks to regulate those
activities that are useful and necessary but
create abnormally dangerous risks to society
BASIS OF LIABILITY
-is the intentional behaviour in exposing the
community to the abnormal risk
POSSESSOR OF ANIMALS
-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.
-And it does not matter either that the dog
was tame and was merely provoked by the
child into biting her. The law does not speak
only of vicious animals but covers even tame
ones as long as they cause injury
-it is based on natural equity and on the
principle of social interest that he who
possesses animals for his utility, pleasure or
service must answer for the damage which
such animal may cause. (Vestil vs IAC, GR
No. 74431)
MANUFACTURERS AND PROCESSORS OF
FOODSTUFFS
-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 exist
between them and the consumers
-it has been said that the basis of products
liability is the responsibility put upon one
 KVYN NOTES
who sends goods outs into the channels of
trade for use by others
-product liability is generally not considered
to cover instances where the product does
not measure up to buyers expectations, or
on claims based merely on bad bargains
ENTERPRISE LIABILITY
-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
-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
RA 7394 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.
Defective product
-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
24
a product is not considered defective
because another better quality product has
been placed in the market
Tradesman/Seller is held liableWhen
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
Supplier of Durable or Non-durable
consumer product
-are JOINTLY liable for imperfections in
quality that render the products unfit or
inadequate for consumption for which they
are designed or decrease their value, and for
those resulting from inconsistency with the
information provided on the container
,packaging, labels etc.
IF the imperfection is not corrected within
thirty (30) days, the consumer may
alternatively demand at his option:
a.) replacement of the product by
another of the same kind, in a perfect
state of use;
b.) the immediate reimbursement of
the amount paid, with monetary
updating, without prejudice to any
losses and damages;
c.) a proportionate price reduction
Suppliers liable for imperfection in the
quantity
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, labelling 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;
 KVYN NOTES
c.) the replacement of the product by
another of the same kind, mark or
model, without said imperfection;
d.) the immediate reimbursement of
the amount paid, with monetary
updating without prejudice to
losses and damages
Service Suppliers Liability
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 serives may be entrusted
to duly qualified third parties, at the
suppliers risk and cost.
Druggist
-is responsible as an absolute guarantor of
what he sells
-Instead of Caveat emptor it should be
Caveat Venditor
-He cannot escape civil responsibility, upon
the alleged pretexts that it was an accidental
or an innocent mistake that he had been
very careful and particular, and had used
extraordinary care and diligence in preparing
or compounding the medicines as required,
etc. Such excuses will not avail him
-delivery of poisonous drug by mistake by
the druggist is prima facie negligence,
placing the burden on him to show that the
mistake was under the circumstances
consistent with the exercise of due care
-the nature of drugs is such that examination
would not avail the purchaser anything. It
would be idle mockery for the customer to
make an examination of a compound of
which he can know nothing
25
Head of the family
The head of the family that lives in a building
or a part thereof, is responsible for damages
caused by things thrown or falling from the
same.
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
Chapter 7Special Torts
Abuse of Right Principle
-Art 19 NCC provides that every person must,
in the exercise of his rights and in the
performance of his duties, act with justice,
give everyone his due and observe honesty
and good faith
-where a person exercises his rights but does
so arbitrarily or unjustly or performs his
duties in a manner that is not in keeping with
honesty and good faith, he opens himself to
liability
-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.
-every abnormal exercise of a right, contrary
to its socio-economic purpose, is an abuse
that will give rise to liability
-thus, where an educational institution was
sued for allegedly misleading a student into
believing that the latter had satisfied all the
requirements for graduation when such is
not the case, the SC found that in belatedly
informing the student of the result of the
removal examination, particularly at a time
when he had already commenced preparing
for the bar exams the school may have acted
in bad faith making the suit for abuse of right
under Art 19 of Civil Code proper.
Educational institutions are duty-bound to
inform the students of their academic status
and not wait for the latter to inquire from the
former. The conscious indifference of a
person to the rights or welfare of the person/
persons who may be affected by his act or
 KVYN NOTES
omission can support a claim for damages.
(UE vs Jader)
A public utility effecting disconnection of
service to a delinquent customer without
prior written notice was held to have
committed tort under Article 21 of the Civil
Code
Elements-Abuse of Right
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;
Anyone who, whether wilfully or negligently,
in the exercise of his legal right or duty,
causes damage to another shall indemnify
his victim for injuries suffered thereby.
Art 21 of Civil Code
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 customs, public order, or
public policy;
3.) And it is done with intent to injure
Emotional Distress Tort Action
Civil action filed by an individual to assuage
the injuries to his emotional tranquillity due
to personal attacks on his character (MVRS
Publication vs Islamic Dawah, GR No.
135306)
PLAINTIFF MUST SHOW:
a.) The conduct of the defendant was
intentional or in reckless disregard
of the plaintiff;
b.) Conduct was extreme and
outrageous;
c.) There was a causal connection
between the defendants conduct
and the plaintiffs mental distress;
and
d.) Plaintiffs mental distress was
extreme and severe
Extreme and outrageous conduct
a conduct that is so outrageous in character,
and so extreme in degree, as to go beyond
26
all possible bounds of decency and to be
regarded as atrocious and utterly intolerable
in civilized society
Emotional Distress
Any highly unpleasant mental reaction such
as extreme grief, shame, humiliation,
embarrassment, anger, disappointment,
worry, nausea, mental suffering and anguish,
shock, fright, horror, and chagrin
The plaintiff is required to show, among
other things, that he or she has suffered
emotional distress so severe that no
reasonable person could be expected to
endure it.
A plaintiff is necessarily expected and
required to be hardened to a certain amount
of criticism, rough language, and to
occasional acts and words that are definitely
inconsiderate and unkind; the mere fact that
the actor knows that the other will regard the
conduct as insulting, or will have his feelings
hurt, is not enough.
Sec 34 RA 9262 VAWC
Any person, private individual or police
authority or barangay official who, acting in
accordance with law, responds or intervenes
without using violence or restraint greater
than necessary to ensure the safety of the
victim, shall not be liable for any criminal,
civil or administrative liability resulting
therefrom.
Interference with contractual relations
Article 1314 of the Civil Code provides that
any third person who induces another to
violate his contract shall be liable for
damages to the other contracting party
The interference is penalized because it
violates the property rights of a party in a
contract to reap the benefits that should
result therefrom. (Lagon vs CA, GR No.
119107)
Elements of Interference with
contractual relation
a.) Existence of a valid contract;
 KVYN NOTES
b.) Knowledge on the part of the third
person of the existence of the
contract; and
c.) Interference of the third person
without legal justification or excuse
Chapter 8Kindred Torts
Medical Malpractice/ Medical
Negligence
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 vs
Sisters of Mercy Hospital, GR No.
130547)
Elements of Medical Negligence
1. Duty
2. Breach
3. Injury
4. Proximate Causation
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.
Standard of Care
In the absence of a special contract, a
physician or surgeon is not required to
exercise extraordinary skill and care or the
highest degree of skill and care possible; but
as general rule, he is only required to
possess and exercise the degree of skill and
learning ordinarily possessed and exercised
under similar circumstances by the members
of his profession in good standing, and to use
ordinary and reasonable care and diligence,
and his best judgment, in the application of
his skill to the case.
27
BUT a physician holding himself out as
having special knowledge and skill in
the treatment of a particular organ,
disease or type of injury is bound to
bring to the discharge of his duty to a
patient employing him as such
specialist, not merely the average
degree of skill possessed by general
practitioners, but that special degree of
skill and knowledge possessed by
physicians who devote special study
and attention to the treatment of such
organ, disease or injury, regard being
had of the state of scientific knowledge
at the time.
Doctor renders services for free
But the fact that a physician or surgeon
renders his services gratuitously does not
absolve him from the duty to use reasonable
and ordinary care, skill and diligence.
Locality Rule
The locality in which a physician practices is
likewise important in determining the degree
of skill and care required of him, and the rule
is frequently stated that a physician or
surgeon is required, or is only required, to
exercise the same degree of care and skill
exercised by physicians and surgeons in
good standing engaged in the same general
line of practice in the same locality or
neighbourhood.
Acts or Omissions Constituting
Negligence/ Malpractice
a.) Wrong diagnosis, when such results
from want of requisite skill or care;
b.) Unwarranted abandonment of a case
after its assumption, at least where he
does not give reasonable notice or
provide a competent physician in his
place;
c.) Operating without patients consent
where a patient is in possession of his
faculties and in such physical health
as to be able to consult about his
condition, and no emergency exists in
making it impracticable to confer with
him, or without the consent of the
 KVYN NOTES
parents, spouse or guardian, in the
absence of an emergency;
d.) Failing to give the patient or his family
or attendants all necessary and proper
instructions as to the care and
attention to be given to the patient
and the cautions to be observed;
e.) Allowing a foreign substance to enter
or remain in the body of the person
operated on, and this extends to the
sponges and pads;
f.) Failing to give warning when attending
to a patient afflicted with contagious
or infectious disease;
g.) Writing an erroneous prescription; or
h.) Issuing wrongful certificate of insanity
or inebriety
Error in Judgment Rule
A physician is not liable for error in his
judgment when he applies ordinary and
reasonable skill and care, or his best
judgment, or keeps within recognized and
approved methods or common practice, or if
he forms his judgment after a careful or
proper examination or investigation
Negligence must be the proximate
cause of the injury
In order that there may be a recovery for an
injury, however, it must be shown that the
injury for which recovery is sought must be
the legitimate consequence of the wrong
done; the connection between the
negligence and the injury must be a direct
and natural sequence of events, unbroken by
intervening efficient causes.
Expert Witness Usually Necessary
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.
(Reyes vs Sisters of Mercy)
Two-pronged Evidence
1. Recognized standards of the medical
community in the particular kind of
case
28
2. Showing that the physician in question
negligently departed from this
standard in his treatment
Res Ipsa Loquitor
obvious errors may nonetheless bring
about the application of the doctrine of res
ipsa loquitor. In such case, the need for
expert testimony is dispensed with because
the injury itself provides the proof of
negligence.
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.
Reyes vs CA, GR No. 124354, April 11,
2002
-Erlinda Ramos; removal of the stone in her
gall bladder; Dr. Hosaka-Surgeon; Dr.
Gutierrez-Anaesthesiologist; Hosaka arrived
3 hours late; ang hirap ma intubate nito mali
yata ang pagkapasok. Lumalaki na ang tiyan;
-the 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
-SC cited ordinarily 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.
Liability of Hospitals
Old Ruling: In other words, private
hospitals, hire, fire and exercise real control
over their attending and visiting consultant
staff. While consultants are not, technically
 KVYN NOTES
employees, the control exercised, the hiring,
and the right to terminate consultants all
fulfil the important hallmarks of an employer-
employee relationship, with the exception of
the payment of wages.
Accordingly, on the basis of the foregoing,
for the purpose of allocating responsibility in
medical negligence cases, an employer-
employee relationship in effect exists
between the hospitals and their attending
and visiting physicians. This being the case,
there is basis for holding an employer
solidarily responsible for the negligence of its
employee is found in Article 2180 of the Civil
Code which considers a person accountable
not only for his own acts but also for those of
others based on the formers responsibility
under a relationship of patria potestas.
(Ramos vs CA, 1999)
New Ruling: The SC granted the motion for
reconsideration and ruled that as explained
by respondent hospital, the admission of a
physician to membership in DLSMCs medical
staff as active or visiting consultant is first
decided upon by the Credentials Committee
thereof, which is composed of the heads of
the various specialty departments such as
the Department of Obstetrics and
Gynecology, Pediatrics, Surgery with the
department head of the particular specialty
applied for as chairman. The Credentials
Committee then recommends to DLSMCs
Medical Director or Hospital Administrator
the acceptance or rejection of the applicant
physician, and said director or administrator
validates the committees recommendation.
Similarly, in cases where a disciplinary action
is lodged against a consultant, the 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
29
respondent hospital and said 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. (Ramos vs
CA, 2002)
Special or Limited Practitioners
The rules and standards governing the duty
and liability of physicians and surgeons in
the performance of professional 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.
Physician/ Surgeon vicariously liable for
acts of their assistants
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
Borrowed Servant/ Assistant Doctrine
An increasing number of courts, although
not abandoning the so called 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
 KVYN NOTES
Is also a ground for civil liability. It was held
that damages can be recovered as a result of
inaction of counsel. And in a case where the
lawyer was negligent and the negligence
resulted in the dismissal of the clients civil
action for damages, the SC ordered the
lawyer to reimburse his client with attorneys
fees and paid court appearances. (Richards
vs Asoy, AC No. 2655)
But lawyers, like doctors are not liable for
mere error of judgment. Mistakes of
attorneys as to the competency of a witness,
the sufficiency, relevancy or irrelevancy of
certain evidence, the proper defense or the
burden of proof, failure to introduce
evidence, to summon witnesses, and to
argue the case, unless they prejudice the
client and prevent him from properly
presenting his case, do not constitute gross
30
incompetence or negligence. (Tesoro vs
CA, 54 SCRA 296)
Liability of Directors and Trustees of
Corporation
Section 31. Liability of directors, trustees or
officers. - Directors or trustees who willfully
and knowingly vote for or assent to patently
unlawful acts of the corporation or who are
guilty of gross negligence or bad faith in
directing the affairs of the corporation or
acquire any personal or pecuniary interest in
conflict with their duty as such directors or
trustees shall be liable jointly and severally
for all damages resulting therefrom suffered
by the corporation, its stockholders or
members and other persons.