Laws and Jurisprudence On Torts and Damages Largo PDF

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TORTS
(QUASI-DELICT)
CHAPTER 1
INTRODUCTORY CONCEPTS
1. TORTS in common law cover all wrongful Definition

acts, although sometimes viewed to be limited only to a
wrong independent of a contract. In common law coun-
tries like the United States, torts may either be inten-
tional or unintentional. They may also fall under the
category of strict liability torts. Intentional torts include:
battery, assault (apprehension of harmful or offensive
contact), false imprisonment, intentional infliction of
emotional distress (IIED), invasion of privacy, fraud,
defamation of character (includes libel, which is written
defamation of character and slander, which is non-writ-
ten defamation of character), malicious prosecution,
abuse of process, the real property tort of trespass to
land, and the personal property torts of conversion and
trespass to chattels. On the other hand, unintentional
torts are usually founded on negligent acts and may
include malpractice (professional negligence), and prod-
uct liability.
2. The word “tort” came to be adopted in our
jurisprudence upon the implantation of American sov-
ereignty in the Philippines. But there are important dif-
ferences between the common law on torts obtaining in
the United States and the law on torts in the Philippines.
This is due to the fact that the provisions of our codes
governing legal wrongs which we call “torts” are some-
times different from the common law on torts (see
Nicolas, The Philippine Law on Torts and Damages, p. 13).
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2 LAWS AND JURISPRUDENCE ON TORTS AND DAMAGES
3. The Philippines is a civil law country. Our

private laws are found in codes mainly based on the
Spanish codes which were continued in force with cer-
tain modifications after the advent of the American re-
gime and in laws passed by our legislature from time to
time. These latter laws were based on, or greatly influ-
enced by, American ideas and principles which are the
product of the common law. In the interpretation and
application of our codes and legislation, our courts have
freely drawn upon American precedents and authori-
ties. The result of all this is that many common law prin-
ciples have been engrafted in our legal system. Perhaps,
in no branch of law in the Philippines is the blending of
the common law and the civil law systems better exem-
plified that in the field of torts (Ibid., citing Jarencio, Phil-
ippine Legal History).
4. In the Philippines, our concept of torts leans
towards its civil law equivalent of culpa aquiliana. Thus,
in Article 2176 of our Civil Code, the following defini-
tion appears: “Whoever by act or omission causes dam-
age to another, there being fault or negligence, is obliged
to pay for the damage done. Such fault or negligence, if
there is no pre-existing contractual relation between the
parties, is called a quasi-delict.”
Distinguished 5. In the general plan of the Philippine legal sys-
from torts tem, intentional and malicious acts that are constitutive
also of torts in common law are governed by the Penal
Code, although certain exceptions are made (See Report
of the Code Commission, pp. 161-162). What are generally
considered tortious acts in the Philippines are limited to
acts committed by negligence and without intent. “Quasi-
delict under Art. 2176 is limited to negligent acts or omis-
sions and excludes the notion of willfulness or intent. In
the general scheme of the Philippine legal system envi-
sioned by the Commission responsible for drafting the
New Civil Code, intentional and malicious acts, with
certain exceptions, are to be governed by the Revised
Penal Code while negligent acts or omissions are to be
covered by Article 2176 of the Civil Code” (Tolentino,
Commentaries and Jurisprudence on the Civil Code of the
Philippines, Vol. 1, 1985 ed., 72).
CHAPTER 1 3
6. Quasi-delict, known in Spanish legal treatises

as culpa aquiliana, is a civil law concept while “torts’’ is
an Anglo-American or common law concept. Tort is
much broader than culpa aquiliana because it includes
not only negligence, but intentional criminal acts as well
such as assault and battery, false imprisonment and de-
ceit (Gashem Shookat Baksh vs. Court of Appeals, et al., G.R.
No. 97336, February 19, 1993).
7. “Quasi-delict, as defined in Article 2176 of the
Civil Code, (which is known in Spanish legal treatises as
culpa aquiliana, culpa extra-contractual or cuasi-delitos) is
homologous but not identical to tort under the common
law, which includes not only negligence, but also inten-
tional criminal acts, such as assault and battery, false
imprisonment, and deceit.” (Coca-Cola Bottlers Phils., Inc.
vs. Court of Appeals, et al., G.R. No. 110295, October 18,
1993).
8. However, in cases of special torts (see discus-
sion in Chapter 7, infra.), willful acts may be made basis
of an action for damages. “In the general scheme of the
Philippine legal system envisioned by the Commission
responsible for drafting the New Civil Code, intentional
and malicious acts, with certain exceptions, are to be
governed by the Revised Penal Code while negligent
acts or omissions are to be covered by Article 2176 of the
Civil Code. In between these opposite spectrums are in-
jurious acts which, in the absence of Article 21, would
have been beyond redress. Thus, Article 21 fills that
vacuum. It is even postulated that together with Articles
19 and 20 of the Civil Code, Article 21 has greatly broad-
ened the scope of the law on civil wrongs; it has become
much more supple and adaptable than the Anglo-Ameri-
can law on torts.” (Tolentino, Commentaries and Jurispru-
dence on the Civil Code of the Philippines, vol. 1, 1985 ed.,
72).
9. The elements of a quasi-delict are (a) damages Elements of
suffered by the plaintiff; (b) fault or negligence of the Quasi-delict
defendant, or some other person for whose acts he must
respond; and (c) the connection of cause and effect be-
tween the fault or negligence of the defendant and the
damages incurred by the plaintiff (Taylor vs. Manila Elec-
tric Company, 16 Phil. 8; Vergara vs. Court of Appeals, G.R.

No. 77679, September 30, 1987, 154 SCRA 564).
10. While quasi-delict is limited to negligent acts
or omissions and excludes intentional ones, said negli-
gent acts may cover those which are punishable by law.
Article 2176, where it refers to “fault or negligence,” cov-
ers not only acts “not punishable by law” but also acts
criminal in character. In other words, culpa aquiliana
includes voluntary and negligent acts which may be pun-
ishable by law.
11. In consequence, a negligent act that has been
made subject of a criminal case may at the same time be
an object of an action for quasi-delict.
12. Article 2176, where it refers to “fault or negli-
gence,” covers not only acts “not punishable by law”
but also acts criminal in character, whether intentional
and voluntary or negligent. Consequently, a separate civil
action lies against the offender in a criminal act, whether
or not he is criminally prosecuted and found guilty or
acquitted, provided that the offended party is not al-
lowed, if he is actually charged also criminally, to re-
cover damages on both scores, and would be entitled in
such eventuality only to the bigger award of the two,
assuming the awards made in the two cases vary. In
other words, the extinction of civil liability referred to in
par. (e) of Section 3, Rule 111, refers exclusively to civil
liability founded on Article 100 of the Revised Penal
Code, whereas the civil liability for the same act consid-
ered as a quasi-delict only and not as a crime is not extin-
guished even by a declaration in the criminal case that
the criminal act charged has not happened or has not
been committed by the accused (Elcano vs. Hill, G.R. No.
L-24803, May 26, 1977).
13. “Responsibility for fault or negligence under
[quasi-delict] is entirely separate and distinct from the
civil liability arising from negligence under the Penal
Code. But the plaintiff cannot recover damages twice
for the same act or omission of the defendant.” (Art.
2177, New Civil Code, or, NCC).
14. Culpa aquiliana is a separate legal institution
under the Civil Code with a substantivity all its own,
CHAPTER 1 5
and individuality that is entirely apart and independent

from a delict or crime (Castillo, et al. vs. Court of Appeals,
et al., G.R. No. 48541, August 21, 1989, 176 SCRA 591).
15. According to the Code Commission: “The
foregoing provision (Article 2177) though at first sight
startling, is not so novel or extraordinary when we con-
sider the exact nature of criminal and civil negligence.
The former is a violation of the criminal law, while the
latter is a ‘culpa aquiliana’ or quasi-delict, of ancient ori-
gin, having always had its own foundation and indi-
viduality, separate from criminal negligence. Such dis-
tinction between criminal negligence and ‘culpa extra-
contractual’ or ‘cuasi-delito’ has been sustained by deci-
sion of the Supreme Court of Spain and maintained as
clear, sound and perfectly tenable by Maura, an out-
standing Spanish jurist. Therefore, under the proposed
Article 2177, acquittal from an accusation of criminal
negligence, whether on reasonable doubt or not, shall
not be a bar to a subsequent civil action, not for civil
liability arising from criminal negligence, but for dam-
ages due to a quasi-delict or ‘culpa aquiliana.’ But said
article forestalls a double recovery.” (Report of the Code
Commission, p. 162, cited in Elcano vs. Hill, supra).
16. The settled rule is that the same act or omis-
sion can create two kinds of liability on the part of the
offender, that is, civil liability ex delicto and civil liability
ex quasi delicto. Since the same negligence can give rise
either to a delict or crime or to a quasi-delict or tort,
either of these two types of civil liability may be en-
forced against the culprit, subject to the caveat under
Article 2177 of the Civil Code that the offended party
cannot recover damages under both types of liability
(Jarantilla vs. Court of Appeals, G.R. No. 80194, March 21,
1989).
17. Some of the differences between crimes un- Culpa
der the Penal Code and the culpa aquiliana or cuasi-delito aquiliana
under the Civil Code are: (a) that crimes affect the pub- distinguished
lic interest, while cuasi-delitos are only of private con- from culpa
criminal
cern; (b) that, consequently, the Penal Code punishes or
corrects the criminal act, while the Civil Code, by means
of indemnification, merely repairs the damage; and
(c) that delicts are not as broad as quasi-delicts, because

the former are punished only if there is a penal law
clearly covering them, while the latter, cuasi-delitos, in-
clude all acts in which “any kind of fault or negligence
intervenes.” (See Barredo vs. Garcia, G.R. No. 48006, July
8, 1942, citing Colin and Capitant, “Curso Elemental de
Derecho Civil,” Vol. 3, p. 728.).
18. May the civil action for culpa aquiliana and
the criminal action for the same negligent act be filed
simultaneously? The Supreme Court, in Rafael Reyes
Trucking Corporation vs. People of the Philippines, et al., G.R.
No. 129029, April 3, 2000, first answered the question in
the negative.
19. In Rafael Reyes Trucking Corporation case, the
Provincial Prosecutor of Isabela filed with the Regional
Trial Court an amended information charging Romeo
Dunca y de Tumol with reckless imprudence resulting
in double homicide and damage to property. Upon ar-
raignment, the offended parties made a reservation to
file a separate civil action against the accused arising
from the offense charged. Thereafter, the offended par-
ties actually filed with the Regional Trial Court a com-
plaint against the employer of the driver based on quasi
delict. Among the issues raised was whether the Court
may award damages to the offended parties in the crimi-
nal case despite the filing of a civil action against the
employer of the truck driver. The Supreme Court ruled
that “[i]n negligence cases, the aggrieved party has the
choice between (1) an action to enforce civil liability aris-
ing from crime under Article 1001 of the Revised Penal
Code; and (2) a separate action for quasi delict under
Article 2176 of the Civil Code of the Philippines. Once
the choice is made, the injured party can not avail him-
self of any other remedy because he may not recover
damages twice for the same negligent act or omission of
the accused.
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Art. 100. Civil liability of a person guilty of felony. — Every per-
son criminally liable for a felony is also civilly liable.
CHAPTER 1 7
20. In other words, “the same act or omission

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

tionable under Articles 2176 and 2177 of the Civil Code.
24. Under Section 1 of the present Rule 1112, what
is “deemed instituted” with the criminal action is only
the action to recover civil liability arising from the crime
or ex-delicto. All the other civil actions under Articles 32,
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SECTION 1. Institution of Criminal and Civil Actions. — (a) When
a criminal action is instituted, the civil action for the recovery of civil
liability arising from the offense charged shall be deemed instituted
with the criminal action unless the offended party waives the civil
action, reserves the right to institute it separately or institutes the civil
action prior to the criminal action.
The reservation of the right to institute separately the civil ac-
tion shall be made before the prosecution starts presenting its evi-
dence and under circumstances affording the offended party a reason-
able opportunity to make such reservation.
When the offended party seeks to enforce civil liability against
the accused by way of moral, nominal, temperate, or exemplary dam-
ages without specifying the amount thereof in the complaint or infor-
mation, the filing fees therefor shall constitute a first lien on the judg-
ment awarding such damages.
Where the amount of damages, other than actual, is specified in
the complaint or information, the corresponding filing fees shall be
paid by the offended party upon the filing thereof in court.
Except as otherwise provided in these Rules, no filing fees shall
be required for actual damages.
No counterclaim, cross-claim or third-party complaint may be
filed by the accused in the criminal case, but any cause of action which
could have been the subject thereof may be litigated in a separate civil
action. (1a)
(b) The criminal action for violation of Batas Pambansa Blg.
22 shall be deemed to include the corresponding civil action. No reser-
vation to file such civil action separately shall be allowed.
Upon filing of the aforesaid joint criminal and civil actions, the
offended party shall pay in full the filing fees based on the amount of
the check involved, which shall be considered as the actual damages
claimed. Where the complaint or information also seeks to recover
liquidated, moral, nominal, temperate or exemplary damages, the of-
fended party shall pay additional filing fees based on the amounts
alleged therein. If the amounts are not so alleged but any of these
damages are subsequently awarded by the court, the filing fees based
on the amount awarded shall constitute a first lien on the judgment.
Where the civil action has been filed separately and trial thereof
has not yet commenced, it may be consolidated with the criminal
action upon application with the court trying the latter case. If the
application is granted, the trial of both actions shall proceed in accor-
dance with section 2 of this Rule governing consolidation of the civil
and criminal actions.”
CHAPTER 1 9
33, 34 and 2176 of the Civil Code are no longer “deemed

instituted,” and may be filed separately and prosecuted
independently even without any reservation in the crimi-
nal action. The failure to make a reservation in the crimi-
nal action is not a waiver of the right to file a separate
and independent civil action based on these articles of
the Civil Code. Verily, the civil actions based on these
articles of the Civil Code are separate, distinct and inde-
pendent of the civil action “deemed instituted” in the
criminal action (Ibid.).
25. Under the present Rule 111, the offended
party is still given the option to file a separate civil
action to recover civil liability ex-delicto by reserving
such right in the criminal action before the prosecu-
tion presents its evidence. Also, the offended party is
deemed to make such reservation if he files a sepa-
rate civil action before filing the criminal action. If
the civil action to recover civil liability ex-delicto is
filed separately but its trial has not yet commenced,
the civil action may be consolidated with the crimi-
nal action. The consolidation under this Rule
does not apply to separate civil actions arising from
the same act or omission filed under Articles 323,
3
ARTICLE 32. Any public officer or employee, or any private
individual, who directly or indirectly obstructs, defeats, violates or in
any manner impedes or impairs any of the following rights and liber-
ties of another person shall be liable to the latter for damages:
(1) Freedom of religion;
(2) Freedom of speech;
(3) Freedom to write for the press or to maintain a periodi-
cal publication;
(4) Freedom from arbitrary or illegal detention;
(5) Freedom of suffrage;
(6) The right against deprivation of property without due
process of law;
(7) The right to a just compensation when private property
is taken for public use;
(8) The right to the equal protection of the laws;
(9) The right to be secure in one’s person, house, papers,
and effects against unreasonable searches and seizures;
(10) The liberty of abode and of changing the same;
(11) The privacy of communication and correspondence;
(12) The right to become a member of associations or societ-
ies for purposes not contrary to law;
334, 345 and 2176 of the Civil Code.

26. It thus appears that an aggrieved party may
file criminal case and civil case for quasi-delict on the same
negligent act or omission. This, essentially, is the import
also of the ruling of the Supreme Court in Sps. Santos, et
al. vs. Pizardo, et al., G.R. No. 151452, July 29, 2005 when It
said that “[a]n act or omission causing damage to another
(13) The right to take part in a peaceable assembly to petition

the Government for redress of grievances;
(14) The right to be free from involuntary servitude in any
form;
(15) The right of the accused against excessive bail;
(16) The right of the accused to be heard by himself and coun-
sel, to be informed of the nature and cause of the accusation against
him, to have a speedy and public trial, to meet the witnesses face to
face, and to have compulsory process to secure the attendance of wit-
ness in his behalf;
(17) Freedom from being compelled to be a witness against
one’s self, or from being forced to confess guilt, or from being induced
by a promise of immunity or reward to make such confession, except
when the person confessing becomes a State witness;
(18) Freedom from excessive fines, or cruel and unusual pun-
ishment, unless the same is imposed or inflicted in accordance with a
statute which has not been judicially declared unconstitutional; and
(19) Freedom of access to the courts.
In any of the cases referred to in this article, whether or not the
defendant’s act or omission constitutes a criminal offense, the aggrieved
party has a right to commence an entirely separate and distinct civil
action for damages, and for other relief. Such civil action shall proceed
independently of any criminal prosecution (if the latter be instituted),
and may be proved by a preponderance of evidence.
The indemnity shall include moral damages. Exemplary dam-
ages may also be adjudicated.
The responsibility herein set forth is not demandable from a
judge unless his act or omission constitutes a violation of the Penal
Code or other penal statute.
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ARTICLE 33. In cases of defamation, fraud, and physical inju-
ries a civil action for damages, entirely separate and distinct from the
criminal action, may be brought by the injured party. Such civil action
shall proceed independently of the criminal prosecution, and shall
require only a preponderance of evidence.
5
ARTICLE 34. When a member of a city or municipal police
force refuses or fails to render aid or protection to any person in case
of danger to life or property, such peace officer shall be primarily
liable for damages, and the city or municipality shall be subsidiarily
responsible therefor. The civil action herein recognized shall be inde-
pendent of any criminal proceedings, and a preponderance of evi-
dence shall suffice to support such action.
CHAPTER 1 11
may give rise to two separate civil liabilities on the part

of the offender, i.e., (1) civil liability ex delicto, under Ar-
ticle 100 of the Revised Penal Code; and (2) independent
civil liabilities, such as those (a) not arising from an act
or omission complained of as a felony, e.g., culpa contrac-
tual 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 proscrip-
tion against double recovery.”
This is a return to the pronouncement of the Su-
preme Court in the early case of Elcano vs. Hill, supra,
that “a separate civil action lies against the offender in a
criminal act, whether or not he is criminally prosecuted
and found guilty or acquitted, provided that the offended
party is not allowed, if he is actually charged also crimi-
nally, to recover damages on both scores, and would be
entitled in such eventuality only to the bigger award of
the two, assuming the awards made in the two cases
vary.”
27. In the event that the offended party files these
two cases simultaneously or one after the other, should
the civil case for quasi-delict be suspended to await the
outcome of the criminal case for the same reckless or
negligent act?
Under Section 2, Rule 111 of the amended 1985
Rules of Criminal Procedure, a separate civil action, if
reserved in the criminal action, could not be filed until
after final judgment was rendered in the criminal ac-
tion. If the separate civil action was filed before the com-
mencement of the criminal action, the civil action, if still
pending, was suspended upon the filing of the criminal
action until final judgment was rendered in the criminal
action. But this rule applies only to the separate civil
action filed to recover liability ex-delicto. The rule does
not apply to independent civil actions based on Articles

32, 33, 34 and 2176 of the Civil Code, which could pro-
ceed independently regardless of the filing of the crimi-
nal action (Id., Casupanan, et al. vs. Laroya).
28. “In the cases provided in Articles 32, 33, 34
and 2176 of the Civil Code of the Philippines, the inde-
pendent civil action may be brought by the offended
party. It shall proceed independently of the criminal ac-
tion and shall require only a preponderance of evidence.
In no case, however, may the offended party recover
damages twice for the same act or omission charged in
the criminal action.” (Section 3, Rule 111 of the 2000 Rules
of Criminal Procedure).
29. Inasmuch as an independent civil action may
be filed before or during the pendency of the criminal
case involving the same negligent act, a prefatory dis-
cussion is needed on the liability of employer in a crimi-
nal case against the negligent employee and the
employer’s vicarious liability for the same negligent act
of the employee in the separate and independent civil
action for quasi-delict.
30. Thus, for instance, a reckless driver may be
held civilly liable in the criminal case where he was con-
victed of reckless imprudence. The civil liability in this
case is liability ex delicto. Should the employee be found
to be insolvent, the civil aspect may be enforced against
his employer under Art. 103 of the Revised Penal Code.
31. In the meantime, the employer may also be
facing a civil action for quasi-delict proceeding from his
vicarious liability as employer of the reckless driver un-
der Article 2180, par. 5 of the Civil Code.
32. In the above instances, the plaintiff “cannot
recover damages twice for the same act or omission of
the defendant.” (Art. 2177, Civil Code). He will then have
to choose which favorable judgment to enforce.
33. Distinction should be made between the sub-
sidiary liability of the employer under the Revised
Penal Code and the employer’s primary liability under
the Civil Code which is quasi-delictual or tortious in char-
acter.
CHAPTER 1 13
The first type of liability is governed by Articles

102 and 1036 of the Revised Penal Code while the sec-
ond kind is governed by the provisions of the Civil Code.
34. Under Article 103 of the Revised Penal Code,
liability originates from a delict committed by the em-
ployee who is primarily liable therefor and upon whose
primary liability his employer’s subsidiary liability is to
be based. Before the employer’s subsidiary liability may
be proceeded against, it is imperative that there should
be a criminal action whereby the employee’s criminal
negligence or delict and corresponding liability therefor
are proved. If no criminal action was instituted, the
employer’s liability would not be predicated under Ar-
ticle 103. The conviction of the employee primarily li-
able is a condition sine qua non for the employer’s sub-
sidiary liability. There can be no automatic subsidiary
liability of defendant employer under Article 103 of the
Revised Penal Code where his employee has not been
previously criminally convicted (Franco vs. Intermediate
Appellate Court, G.R. No. 71137, October 5, 1989).
Under Articles 2176 and 2180 of the Civil Code,
liability is based on culpa aquiliana which holds the em-
6
ARTICLE 102. Subsidiary civil liability of innkeepers, tavern-
keepers and proprietors of establishments. — In default of the persons
criminally liable, innkeepers, tavernkeepers, and any other persons or
corporations shall be civilly liable for crimes committed in their estab-
lishments, in all cases where a violation of municipal ordinances or
some general or special police regulation shall have been committed
by them or their employees.
Innkeepers are also subsidiarily liable for the restitution of goods
taken by robbery or theft within their houses from guests lodging
therein, or for the payment of the value thereof, provided that such
guests shall have notified in advance the innkeeper himself, or the
person representing him, of the deposit of such goods within the inn;
and shall furthermore have followed the directions which such inn-
keeper or his representative may have given them with respect to the
care of and vigilance over such goods. No liability shall attach in case
of robbery with violence against or intimidation of persons unless
committed by the innkeeper’s employees.
ARTICLE 103. Subsidiary civil liability of other persons. — The
subsidiary liability established in the next preceding article shall also
apply to employers, teachers, persons, and corporations engaged in
any kind of industry for felonies committed by their servants, pupils,
workmen, apprentices, or employees in the discharge of their duties.
ployer primarily liable for tortious acts of its employees

subject, however, to the defense that the former exer-
cised all the diligence of a good father of a family in the
selection and supervision of his employees (Ibid.).
35. “An employer’s liability based on a quasi-delict
is primary and direct, while the employer’s liability based
on a delict is merely subsidiary.
The words “primary and direct,” as contrasted with
“subsidiary,” refer to the remedy provided by law for
enforcing the obligation rather than to the character and
limits of the obligation. Although liability under Article
2180 originates from the negligent act of the employee,
the aggrieved party may sue the employer directly. When
an employee causes damage, the law presumes that the
employer has himself committed an act of negligence in
not preventing or avoiding the damage. This is the fault
that the law condemns. While the employer is civilly
liable in a subsidiary capacity for the employee’s crimi-
nal negligence, the employer is also civilly liable directly
and separately for his own civil negligence in failing to
exercise due diligence in selecting and supervising his
employee. The idea that the employer’s liability is solely
subsidiary is wrong” (Cerezo vs. Tuazon, G.R. No. 141538,
March 23, 2004).
36. In consequence, the civil action for quasi-delict
against the employer may proceed even without the err-
ing employee being impleaded. “The action can be
brought directly against the person responsible (for an-
other), without including the author of the act. The ac-
tion against the principal is accessory in the sense that it
implies the existence of a prejudicial act committed by
the employee, but it is not subsidiary in the sense that it
can not be instituted till after the judgment against the
author of the act or at least, that it is subsidiary to the
principal action; the action for responsibility (of the em-
ployer) is in itself a principal action.” (Ibid.).
Pre-existing
contract 37. By definition, the pre-existing contract be-
generally tween the parties bar the applicability of the law on quasi-
bars quasi- delict.
delict
CHAPTER 1 15
Thus, in a case involving a stabbing incident in-

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

may still exist despite the presence of contractual rela-
tions” (Coca-Cola Bottlers Philippines, Inc. vs. Court of
Appeals, et al., G.R. No. 110295, October 18, 1993).
42. “In order that an obligation based on quasi-
delict may arise, there must be no pre-existing contrac-
tual relation between the parties. But there are excep-
tions. There may be an action for quasi-delict notwith-
standing that there is a subsisting contract between the
parties. A liability for tort may arise even under a con-
tract, where tort is that which breaches the contract.
Stated differently, when an act which constitutes a breach
of contract would have itself constituted the source of a
quasi-delictual liability, the contract can be said to have
been breached by tort, thereby allowing the rules on tort
to apply.” (Light Rail Transit Authority, et al. v. Navidad, et
al., G.R. No. 145804, February 6, 2003, 397 SCRA 75).
43. This doctrine can aptly govern only where
the act or omission complained of would constitute an
actionable tort independently of the contract. The test
(whether a quasi-delict can be deemed to underlie the
breach of a contract) can be stated thusly: Where, with-
out a pre-existing contract between two parties, an act
or omission can nonetheless amount to an actionable
tort by itself, the fact that the parties are contractually
bound is no bar to the application of quasi-delict provi-
sions to the case (FEBTC vs. Court of Appeals, et al., G.R.
No. 108164, February 23, 1995).
44. Generally, liability for tort arises only between
parties not otherwise bound by a contract. An academic
institution, however, may be held liable for tort even if it
has an existing contract with its students, since the act
that violated the contract may also be a tort (Regino vs.
Pangasinan Colleges of Science and Tech., et al., G.R. No.
156109, November 18, 2004).
Culpa 45. Another point calling for distinction is the
aquiliana negligence in culpa contractual cases. Inasmuch as culpa
distinguished aquiliana requires for its existence a negligent act of
from culpa
party, what distinguishes culpa aquiliana from culpa con-
contractual
tractual?
CHAPTER 1 17
“The difference is that [in culpa aquiliana], “culpa

[is] substantive and independent, which of itself consti-
tutes the source of an obligation between persons not
formerly connected by any legal tie” [while in culpa con-
tractual], culpa [is] considered as an “accident in the per-
formance of an obligation already existing . . ..” (Cangco
vs. Manila Railroad Co., G.R. No. 12191, October 14, 1918).
Negligence, thus, in culpa contractual is only inci-
dental to the performance of the obligation. The negli-
gence in culpa aquiliana is direct and primary.
46. Culpa, or negligence, may be understood in
two different senses, either as culpa, substantive and in-
dependent, which of itself constitutes the source of an
obligation between two persons not formerly bound by
any other obligation; or as an incident in the perfor-
mance of an obligation which already existed, which
can not be presumed to exist without the other, and
which increases the liability arising from the already ex-
isting obligation (Manila Railroad Co. vs. La Compania
Transatlantica, G.R. No. 11318, October 26, 1918).
47. Culpa, or negligence, may [either be] culpa
aquiliana, which is the wrongful or negligent act or omis-
sion which creates a vinculum juris and gives rise to an
obligation between two persons not formally bound by
any other obligation, or culpa contractual, which is the
fault or negligence incident in the performance of an
obligation which already existed, and which increases
the liability from such already existing obligation. Culpa
aquiliana is governed by Article 2176 of the Civil Code
and the immediately following Articles; while culpa con-
tractual is governed by Articles 1170 to 1174 of the same
Code (Sps. Batal vs. Sps. Tominaga, G.R. No. 164601,
September 27, 2006).
48. Quasi-delict, also known as culpa aquiliana or
culpa extra contractual, has as its source the negligence of
the tortfeasor. The breach of contract or culpa contractual,
is premised upon the negligence in the performance of a
contractual obligation. Consequently, in quasi-delict, the
negligence or fault should be clearly established because
it is the basis of the action, whereas in breach of con-
tract, the action can be prosecuted merely by proving

the existence of the contract and the fact that the obligor,
in this case the common carrier, failed to transport his
passenger safely to his destination (Calalas vs. Court of
Appeals, G.R. No. 122039, May 31, 2000).
Special 49. As the attendant negligence in culpa contrac-
issues tual is different from the attendant negligence in culpa
involving aquiliana, can one institute a civil case against different
culpa sets of defendants, one based on culpa contractual and
aquiliana and
the other based on culpa aquiliana? Clarifying decisions
culpa con-
tractual in the past, the Supreme Court answered the question in
the affirmative in its fairly recent ruling in the case of
Construction Development Corporation of the Philippines vs.
Estrella, et al., G.R. No. 147791, September 8, 2006.
The Supreme Court ruled: “[t] he owner of the other
vehicle which collided with a common carrier is solidarily
liable to the injured passenger of the same. The same rule
of liability was applied in situations where the negligence
of the driver of the bus on which plaintiff was riding con-
curred with the negligence of a third party who was the
driver of another vehicle, thus causing an accident. In
Anuran v. Buño, Batangas Laguna Tayabas Bus Co. v. Inter-
mediate Appellate Court, and Metro Manila Transit Corpora-
tion v. Court of Appeals, the bus company, its driver, the
operator of the other vehicle and the driver of the vehicle
were jointly and severally held liable to the injured pas-
senger or the latter’s heirs. The basis of this allocation of
liability was explained in Viluan v. Court of Appeals, thus:
Nor should it make any difference that the liability of
petitioner [bus owner] springs from contract while that
of respondents [owner and driver of other vehicle] arises
from quasi-delict. As early as 1913, we already ruled in
Gutierrez vs. Gutierrez, 56 Phil. 177, that in case of injury
to a passenger due to the negligence of the driver of the
bus on which he was riding and of the driver of another
vehicle, the drivers as well as the owners of the two ve-
hicles are jointly and severally liable for damages.” (Con-
struction Development Corporation of the Philippines vs.
Estrella, et al., G.R. No. 147791, September 8, 2006).
50. But what if instead of filing one case founded
on both culpa aquiliana and culpa contractual, the victim
CHAPTER 1 19
files two separate cases, one founded on culpa aquiliana

and the other founded on culpa contractual, but both
operating under the same set of facts and arising from
the same factual circumstances?
51. The Supreme Court in the old case of Joseph
vs. Bautista, G.R. No. 41423, February 23, 1989 intimated
that this may not be done because while there may be
several rights of action, there is but a single cause of
action.
In Joseph, it was ruled: “[i]t is true that a single act
or omission can be violative of various rights at the same
time, as when the act constitutes juridically a violation
of several separate and distinct legal obligations. How-
ever, where there is only one delict or wrong, there is
but a single cause of action regardless of the number of
rights that may have been violated belonging to one per-
son. The singleness of a cause of action lies in the single-
ness of the delict or wrong violating the rights of one
person. Nevertheless, if only one injury resulted from
several wrongful acts only one cause of action arises.
The trial court was, therefore, correct in holding that
there was only one cause of action involved although
the bases of recovery invoked by petitioner against the
defendants therein were not necessarily identical since
the respondents were not identically circumstanced.
However, a recovery by the petitioner under one rem-
edy necessarily bars recovery under the other. This, in
essence, is the rationale for the proscription in our law
against double recovery for the same act or omission
which, obviously, stems from the fundamental rule
against unjust enrichment.”
52. In another case, it was held that “a passenger
of a public utility vehicle involved in a vehicular acci-
dent may sue on culpa contractual, culpa aquiliana or culpa
criminal — each remedy being available independently
of the others — although he cannot recover more than
once.” However, the case hinted that the same consti-
tutes forum-shopping (First Philippine International Bank,
et al. vs. Court of Appeals, G.R. No. 115849, January 24,
1996).
Even in the earlier case of Vda de Severo et al. vs. Go,

et al., G.R. No. L-44330, January 29, 1988, it was men-
tioned that once the choice of forum and remedy has
been made, the claimants are bound thereby and may
no longer pursue the alternative course, in consonance
with the established principles that enjoin multiplicity
of suits and splitting a cause of action.
53. But a cause of action is understood to be the
act or omission by which a party violates a right of an-
other (Section 2, Rule 3, Revised Rules of Civil Procedure).
And “there is no precise rule for determining what makes
an entire cause of action. It depends upon the facts and
circumstances of the particular case and the decisions of
the different courts are not always in harmony in their
application of the rule to particular cases. In the deter-
mination of this question, various tests have been sug-
gested and applied, such as whether the same evidence
is necessary to support all branches of the claim or
whether the claim rests upon one or several acts or agree-
ments, but in the latter case it must be remembered that
separate causes of action, for which separate actions may
be maintained, may arise not only out of separate and
distinct acts, contracts or transactions, but also in some
cases, out of the same act, contract, or transaction” (The
Revised Rules of Court in the Philippines, Vol. 1, page 104,
by Vicente J. Francisco).
In the case of passengers injured by reason of the
negligence of the bus driver, the negligent act of the
driver may bring about an action for culpa contractual
against the operator of the bus and culpa aquiliana for
the negligent act of selecting and supervising the em-
ployee-driver. It needs to be borne in mind that culpa
aquiliana and culpa contractual are separate legal institu-
tions, and are subject to different requirements and de-
fenses. While culpa contractual requires extraordinary dili-
gence, culpa aquiliana, on the other hand, only calls for
due diligence in the selection and supervision of em-
ployees. In culpa contractual, the defense of due diligence
in the selection and supervision of employees is not avail-
able. In fact, in Art. 1759 of the Civil Code, common
carriers are liable for death of or injuries to passengers
CHAPTER 1 21
caused by negligence or willful acts of their employees.

More importantly, “in an action based on a contract of
carriage, the court need not make an express finding of
fault or negligence on the part of the carrier in order to
hold it responsible for the payment of the damages
sought by the passenger. By the contract of carriage, the
carrier assumed the express obligation to transport the
passengers to their destination safely and to observe ex-
traordinary diligence with a due regard for all the cir-
cumstances, and any injury that might be suffered by its
passengers is right away attributable to the fault or neg-
ligence of the carrier” (Batangas Laguna Tayabas Bus Com-
pany, et al. vs. Intermediate Appellate Court, et al., G.R. No.
74387-90, November 14, 1988, citing Art. 1756, New Civil
Code).
In fact, in the United States, the prevailing rule is
“Where separate actions may be brought for injury to
person and to property resulting from the same wrong-
ful act, a judgment in an action for the injury to the
person or property is not a bar to the maintenance of an
action for the injury to the other, whether the judgment
in the earlier case is in favor of the plaintiff or the defen-
dant. However, the judgment in the first action may pre-
clude the relitigation of identical issues in the second
action.” (74 Am Jur 2d, at p. 669).
55. Of course a party may opt not to file separate
suits but instead institute but one case and allege alter-
native causes of action for culpa contractual and culpa
aquiliana. This was expressly allowed by the Supreme
Court in the case of Fabre, Jr. et al. vs. Court of Appeals, et
al., G.R. No. 111127, July 26, 1996 where it was held that it
is permitted for a party “to allege alternative causes of
action and join as many parties as may be liable on such
causes of action so long as plaintiffs do not recover twice
for the same injury.”
56. Anent the question of whether an aggrieved
party can institute an action for culpa contractual after
having instituted a criminal case for reckless imprudence
against the driver of the passenger vehicle, the Supreme
Court has settled the issue with definiteness when It
ruled in the old case of Emerenciana Vda. De Medina, et al.
vs. Cresencia, et al., G.R. No. L-8194, July 11, 1956, that
“plaintiffs’ action for damages is independent of the
criminal case and based, not on the employer’s subsid-
iary liability under the Revised Penal Code, but on a
breach of the carrier’s contractual obligation to carry his
passengers safely to their destination (culpa contractual).
x x x [I]n culpa contractual, the liability of the carrier is
not merely subsidiary or secondary, but direct and im-
mediate (Articles 1755, 1756, and 1759, New Civil Code).”
23
CHAPTER 2
ELEMENTS OF QUASI-DELICT
1. Going by definition of quasi-delict under Negligence

Article 2176 of the Civil Code, it can be said that an defined
action for quasi-delict is founded on the existence of a
negligent act. A discussion, thus, of the concept of negli-
gence is in order.
2. Negligence is statutorily defined to be the
omission of that degree of diligence which is required
by the nature of the obligation and corresponding to the
circumstances of persons, time and place (Art. 1173,
NCC). It is the omission to do something which a rea-
sonable man, guided by those considerations which or-
dinarily regulate the conduct of human affairs, would
do, or the doing of something which a prudent and rea-
sonable man would do (Philippine Bank of Commerce v.
Court of Appeals, G.R. No. 97626, 14 March 1997).
3. It also refers to the conduct which creates un-
due risk of harm to another, the failure to observe that
degree of care, precaution and vigilance that the circum-
stance justly demand, whereby that other person suffers
injury (Smith Bell Dodwell Shipping Agency Corporation v.
Borja, G.R. No. 143008, 10 June 2002).
While the law relating to negligence in this juris-
diction may possibly be somewhat different from that in
Anglo-Saxon countries, the rules under which the fact
of negligence is determined are, nevertheless, generally
the same. That is to say, while the law designating the
person responsible for a negligent act may not be the
same here as in many jurisdictions, the law determining
what is a negligent act is the same here, generally speak-
ing, as elsewhere. (Supreme Court of Spain, 4 Decem-
ber, 1903; 16 May, 1893; 27 June, 1894; 9 April, 1896; 14
23
March, 1901; 2 March, 1904; 7 February, 1905; 16 June,

1905; 23 June, 1905; 13 April, 1903; 7 March, 1902; 12
June, 1900; 2 March, 1907; 18 March, 1898; 3 June, 1901
cited in S.D. Martinez vs. Buskirk, G.R. No. L-5691, De-
cember 27, 1910).
Test to 4. The test by which to determine the existence
determine of negligence in a particular case may be stated as fol-
existence of lows: Did the defendant in doing the alleged negligent
negligence act use that reasonable care and caution which an ordi-
narily prudent person would have used in the same situ-
ation? If not, then he is guilty of negligence.
5. The law here in effect adopts the standard
supposed to be supplied by the imaginary conduct of
the discreet paterfamilias of the Roman law. The exist-
ence of negligence in a given case is not determined by
reference to the personal judgment of the actor in the
situation before him. The law considers what would be
reckless, blameworthy, or negligent in the man of ordi-
nary intelligence and prudence and determines liability
by that. (Picart vs. Smith, 37 Phil. 809 (1918).
6. The question as to what would constitute the
conduct of a prudent man in a given situation must of
course be always determined in the light of human ex-
perience and in view of the facts involved in the particu-
lar case. Abstract speculations cannot be here of much
value but this much can be profitably said: Reasonable
men govern their conduct by the circumstances which
are before them or known to them. They are not, and are
not supposed to be omniscient of the future. Hence they
can be expected to take care only when there is some-
thing before them to suggest or warn of danger. Could a
prudent man, in the case under consideration, foresee
harm as a result of the course actually pursued? If so, it
was the duty of the actor to take precautions to guard
against that harm. Reasonable foresight of harm, fol-
lowed by the ignoring of the suggestion borne of this
provision, is always necessary before negligence can be
held to exist (Picart vs. Smith, supra; also, People v. De los
Santos, G.R. No. 131588, 27 March 2001).
7. Foreseeability of the harm is therefore an in-
dispensable requirement. Thus, in a case where the
CHAPTER 2 25
Supreme Court found that the actor could not have rea-
sonably foreseen the harm that would befall him, it was
ruled that he was not guilty of negligence (Civil Aero-
nautics Administration vs. Court of Appeals, et al., G.R. No.
L-51806, November 8, 1988).
8. In the civil law and at common law, three Degrees of
degrees of negligence were recognized, namely, slight negligence
negligence, ordinary negligence and gross negligence.
Slight negligence is the failure to exercise great or
extraordinary care. Ordinary negligence is the want of
ordinary care and diligence, that is, such care and dili-
gence as an ordinarily prudent person would exercise
under the same or similar circumstances. Gross negli-
gence is materially greater than ordinary negligence, and
consists of an entire absence of care or an absence of
even slight care or diligence; it implies a thoughtless
disregard for consequences or an indifference to the
rights or welfare of others (cf., 65 CJS at pp.536-539).
9. The concept itself is relative and compara- Nature of the
tive. The degree of care to be exercised depends upon concept
person, place and time. “Negligence is want of care re-
quired by the circumstances. It is a relative or compara-
tive not an absolute term, and its application depends
upon the situation of the parties, and the degree of care
and vigilance which the circumstances reasonably im-
pose.” (U.S. vs. Juanillo, G.R. No. 7255, October 3, 1912).
10. The operator of an automobile is bound to
exercise care in proportion to the varying danger and
risks of the highway and commensurate with the dan-
gers naturally incident to the use of such vehicle. He is
obliged to take notice of the conditions before him, and
if it is apparent that by a particular method of proceed-
ing he is liable to work an injury, it is his duty to adopt
some other or safer method if within reasonable care
and prudence he can do so. In determining the degree
of care an operator of an automobile should use, when
on the highway, it is proper to take into consideration
the place, presence or absence of other travelers, the
speed of the automobile, its seize, appearance, manner
of movement, and the amount of notice it makes, and
anything that indicates unusual or peculiar danger. Also,

the degree of care required to be exercised varies with
the capacity of the person endangered to care for him-
self. Thus, it has been held not to be negligence per se in
a boy of six to play on the highway, where an automo-
bile came up on him under circumstances which pro-
duced fright and terror, and thus caused an error of judg-
ment by which the body ran in front of the automobile.
(Thies vs. Thomas, 77 N. Y. Supp., 276.) And in Apperson
vs. Lazaro (Ind. App.), 87 N. E., 97, where an automobile
approached an infirm person from the car at a high rate
of speed and startled him so that in order to avoid the
injury he jumped aside and was struck by the automo-
bile, the court said that the conduct of the operator of
the automobile was an unreasonable abridgment of the
pedestrian’s right to the road (Ibid.).
11. In the above US case, the road on which they
were traveling was dotted with simple rural folk. It was
Sunday afternoon and the road connected two rather
populous towns that were close together. The victims
were two native farmers who all their lives have seen
nothing that moves faster than a bull cart, except in the
two or three occasions on which they testify they have
visited Iloilo, who cannot be expected to give an intelli-
gent idea of speed of an automobile, train, or even a fast
horse. The accused- chaffuer, being in charge of the pow-
erful machine, capable of doing great damage if not skill-
fully manipulated, was bound to use a high degree of
care to avoid injuring these native farmers, who had a
common right to the highway.
12. In Taylor vs. Manila Electric Railroad, et al., G.R.
No. 4977, March 22, 1910, it was said that “while it is the
general rule in regard to an adult that entitle him to
recover damages for an injury resulting from the fault
or negligence of another he must himself have been free
from fault, such is not the rule in regard to an infant of
tender years. The care and caution required of a child is
according to his maturity and capacity only, and this is
to be determined in each case by the circumstance of the
case.” Also, where the danger is great, the degree of care
required is greater.
CHAPTER 2 27
13. “A coachman or driver, who had driven the

horses composing his team for a considerable time, dur-
ing which the animals have shown no disposition to
become unruly, left his team as usual and was assisting
in unloading the wagon when the horses bolted and
running into the plaintiffs’ carriage caused personal in-
juries to the plaintiff and damage to the vehicle was not
held guilty of negligence where it was shown that to
leave teams under like circumstances and to assist in
unloading the wagon, is the custom of drivers in the city
and that the custom is sanctioned by employers. Acts,
the performance of which has not proven destructive or
injurious and which have been generally acquiesced in
by society for so long a time as to have ripened into a
custom, can not be held to be unreasonable or impru-
dent and that, under the circumstances, the driver was
not guilty of negligence in so leaving his team while
assisting in unloading his wagon” (S.D. Martinez vs.
Buskirk, G.R. No. L-5691, December 27, 1910).
14. The degree of care required to be exercised
must vary with the capacity of the person endangered
to care for himself. A minor should not be held to the
same degree of care as an adult, but his conduct should
be judged according to the average conduct of persons
of his age and experience. The standard of conduct to
which a child must conform for his own protection is
that degree of care ordinarily exercised by children of
the same age, capacity, discretion, knowledge and expe-
rience under the same or similar circumstances (Ylarde
et al. vs. Aquino, et al., G.R. No. L-33722, July 29, 1988).
15. In numerous occasions, our Supreme Court
has emphasized that the banking business is impressed
with public interest. Consequently, the highest degree of
diligence is expected, and high standards of integrity
and performance are even required of it. By the nature
of its functions, a bank is under obligation to treat the
accounts of its depositors with meticulous care. (Associ-
ated Bank [now Westmont Bank] vs. Tan, G.R. No. 156940,
December 14, 2004).
16. The same high degree of diligence is
demanded among electric companies considering that
“electricity is an agency, subtle and deadly.” The mea-

sure of care required of electric companies must be com-
mensurate with or proportionate to the danger. The duty
of exercising this high degree of diligence and care ex-
tends to every place where persons have a right to be
(Astudillo vs. Manila Electric Co., G.R. No. 33380, Decem-
ber 17, 1930).
Factors to be 17. In considering negligence, among the factors
considered to be taken into consideration are (1) his employment or
occupation; (2) his degree of intelligence; (3) his physi-
cal condition; and (4) other circumstances regarding per-
sons, time and place (cf., Pangonorom, et al. vs. People of
the Philippines, G.R. No. 143380, April 11, 2005). The dili-
gence with which the law requires the individual at all
times to govern his conduct varies with the nature of the
situation in which he is placed and with the importance
of the act which he is to perform (U. S. vs. Reyes, 1 Phil.
Rep., 375, 377).
18. Thus, where one is a professional public util-
ity driver, it was nighttime and it had just rained, it was
still drizzling and the road was slippery when the sub-
ject incident took place, and the bus was moving down-
hill, but the driver did not slow down but was instead
running very fast, the Supreme Court ruled there was
negligence on the part of the driver (Ibid., Pangonorom et
al. vs. People). Also, “it is the duty of any person driving
a vehicle, and especially a street car, in the public thor-
oughfares to reduce the same to control ready to be
stopped at any moment if he sees a child below the age
of understanding in such a place that is can, by any
reasonable chance, place itself in a dangerous position
with respect to the vehicle. In such case the vehicle must
be under such control that, if the child, by some sudden
or unusual movement, places itself in the way of the
vehicle, it can be stopped in time to avert injury.” (United
States vs. Clemente, G.R. No. 8142, January 25, 1913). But
“boys 10 or 12 years of age who are permitted to go
about unattended may fairly be presumed to have sense
enough to take care of themselves from the ordinary
and usual dangers of street traffic” (United States vs.
Knight, G.R. No. 8561, December 4, 1913).
CHAPTER 2 29
19. Mere intoxication is not negligence, nor does

the mere fact of intoxication establish a want of ordinary
care. If a person’s conduct is characterized by a proper
degree of care and prudence, it is immaterial whether
he is drunk or sober (Wright vs. Manila Electric Company,
G.R. No. 7760, October 1, 1914).
20. If the law or contract does not state the dili-
gence which is to be observed in the performance, that
which is expected of a good father of a family shall be
required. (Art. 1173, NCC). In the absence of stipulation
or legal provision providing the contrary, the diligence
to be observed in the performance of the obligation is
that which is expected of a good father of a family (Syquia
vs. Court of Appeals, et al., G.R. No. 98695, January 27,
1993).
21. Lesser in degree compared to extraordinary
diligence required of common carriers, diligence of good
father of family may be likened to the requirement of
ordinary diligence. “The usual standard of care is such
care as a prudent person would exercise under the cir-
cumstances of a particular case.” (65 CJS 598).
22. But to constitute quasi-delict, it is not enough
to establish negligence. It is equally imperative that the
fault or negligence be the proximate cause of the dam-
age or injury suffered by the plaintiff (See American Ex-
press International vs. Cordero, G.R. No. 138550, October
14, 2005).
23. Proximate cause has been defined as: “. . . Proximate
‘that cause, which, in natural and continuous sequence, cause defined
unbroken by any efficient intervening cause, produces
the injury, and without which the result would not have
occurred.’ And more comprehensively, the proximate le-
gal cause is that acting first and producing the injury,
either immediately or by setting other events in motion,
all constituting a natural and continuous chain of events,
each having a close causal connection with its immedi-
ate predecessor, the final event in the chain immediately
effecting the injury as a natural and probable result of
the cause which first acted, under such circumstances
that the person responsible for the first event should, as
an ordinary prudent and intelligent person, have rea-

sonable ground to expect at the moment of his act or
default that an injury to some person might probably
result therefrom.” (McKee vs. Intermediate Appellate Court,
G.R. No. 68102, July 16, 1992).
24. “Proximate cause is determined by the facts
of each case upon mixed considerations of logic, com-
mon sense, policy and precedent” (The Consolidated Bank
& Trust Co. v. Court of Appeals, G.R. No. 138569, September
11, 2003, 410 SCRA 562).
25. The term has also been defined as the domi-
nant or immediate cause; the cause that sets the others
in motion; the efficient cause; the one that necessarily
sets the other causes in operation. An act or omission is
not the proximate cause of an injury unless, had it not
happened, the injury would not have occurred. The
proximate cause need not be the sole cause, or necessar-
ily the direct cause, or the one which is nearest in time
or place to the result (86 C.J.S. 943).
26. We seem to have also the adopted the above
“but-for” test because “[t]he omission to perform a duty,
such as the placing of warning signs on the site of the
excavation, constitutes the proximate cause only when
the doing of the said omitted act would have prevented
the injury.” (PLDT, Inc. vs. Court of Appeals, G.R. No. 57079,
Concurrence 27. In order to render a person liable, negligence
of efficient need not be the sole cause of an injury. It is sufficient
causes that his negligence, concurring with one or more effi-
cient causes other than plaintiff’s, is the proximate cause
of the injury.
Accordingly, where several causes combine to pro-
duce injuries, a person is not relieved from liability be-
cause he is responsible for only one of them, it being
sufficient that the negligence of the person charged with
injury is an efficient cause without which the injury
would not have resulted to as great an extent, and that
such cause is not attributable to the person injured. It is
no defense to one of the concurrent tortfeasors that the
injury would not have resulted from his negligence alone,
CHAPTER 2 31
without the negligence or wrongful acts of the other con-

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

reason of such injury.” (Brown vs. Manila Electric Railroad
and Light Company, G.R. No. 6666, October 24, 1911).
Presumptions 30. There are instances, however, when negli-
of negligence gence is presumed by law.
It is disputably presumed that a driver was negli-

gent, if he had been found guilty of reckless driving or
violating traffic regulations at least twice within the next
preceding two months (Article 2184, NCC). Unless there
is proof to the contrary, it is presumed that a person
driving a motor vehicle has been negligent if at the time
of the mishap, he was violating any traffic regulation
(Article 2185, NCC).
31. Art. 2185 does not apply to non-motorized
vehicles, even if by analogy. A motorized vehicle oper-
ates by reason of a motor engine unlike a non-motor-
ized 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 accel-
eration than non-motorized vehicles. At the same time,
motorized vehicles are more capable of inflicting greater
injury or damage in the event of an accident or collision.
This is due to a combination of factors peculiar to the
motor vehicle, such as the greater speed, its relative
greater bulk of mass, and greater combustability due to
the fuels that they use (Anonuevo vs. Court of Appeals, et
al., G.R. No. 130003, October 20, 2004).
32. The bus driver, who was driving at a speed
too high to be safe and proper at or near an intersection
on the highway, and in any case too high to be able to
slow down and stop behind the cars which had pre-
ceded it and which had stopped at the intersection, chose
to swerve to the left lane and overtake such preceding
vehicles, entered the intersection and directly smashed
into the jeepney within the intersection. Immediately
before the collision, the bus driver was actually violat-
ing the following traffic rules and regulations, among
others, in the Land Transportation and Traffic Code,
Republic Act No. 4136, as amended (Section 35 [a], 41 a
CHAPTER 2 33
& c). Thus, a legal presumption arose that the bus driver
was negligent (Kapalaran Bus Line vs. Coronado, G.R. No.
85331, August 25, 1989).
33. There is prima facie presumption of negligence
on the part of the defendant if the death or injury results
from his possession of dangerous weapons or substances,
such as firearms and poison, except when the posses-
sion or use thereof is indispensable in his occupation or
business (Article 2188, NCC).
34. Also, “[w]here the thing which causes injury
is shown to be under the management of the defendant,
and the accident is such as in the ordinary course of
things does not happen if those who have the manage-
ment use proper care, it affords reasonable evidence, in
the absence of an explanation by the defendant, that the
accident arose from want of care.” (Cooley on Torts, Vol.
3, p. 369).
35. As Black’s Law Dictionary puts it: “Res ipsa Res ipsa
loquitur. The thing speaks for itself. Rebuttable presump- loquitur
tion or inference that defendant was negligent, which defined
arises upon proof that instrumentality causing injury was
in defendant’s exclusive control, and that the accident
was one which ordinarily does not happen in absence of
negligence. Res ipsa loquitur is rule of evidence whereby
negligence of alleged wrongdoer may be inferred from
mere fact that accident happened provided character of
accident and circumstances attending it lead reasonably
to belief that in absence of negligence it would not have
occurred and that thing which caused injury is shown to
have been under management and control of alleged
wrongdoer. Hillen v. Hooker Const. Co., Tex. Civ. App.,
484 S.W. 2d 133, 155. Under doctrine of “res ipsa loqui-
tur” the happening of an injury permits an inference of
negligence where plaintiff produces substantial evidence
that injury was caused by an agency or instrumentality
under exclusive control and management of defendant,
and that the occurrence was such that in the ordinary
course of things would not happen if reasonable care
had been used.” (Layugan vs. Intermediate Appellate Court,
G.R. No. 73998, November 14, 1988).
36. In this jurisdiction, we have applied this doc-

trine in quite a number of cases, notably in Africa et al.
vs. Caltex, Inc., et al. (L-12986, March 31, 1966, 16 SCRA
448), and the latest is in the case of F.F. Cruz and Co.,
Inc. vs. CA (L-52732, August 29, 1988).
37. The doctrine of Res ipsa loquitur as a rule of
evidence is peculiar to the law of negligence which rec-
ognizes that prima facie negligence may be established
without direct proof and furnishes a substitute for spe-
cific proof of negligence. The doctrine is not a rule of
substantive law but merely a mode of proof or a mere
procedural convenience. The rule, when applicable to
the facts and circumstances of a particular case, is not
intended to and does not dispense with the requirement
of proof of culpable negligence on the part of the party
charged. It merely determines and regulates what shall
be prima facie evidence thereof and facilitates the bur-
den of plaintiff of proving a breach of the duty of due
care (Corpus Juris Secundum, Vol. 65A). It is not a rule of
substantive law and, as such, it does not create an inde-
pendent ground of liability. Instead, it is regarded as a
mode of proof, or a mere procedural convenience since
it furnishes a substitute for, and relieves the plaintiff of,
the burden of producing specific proof of negligence.
The maxim simply places on the defendant the burden
of going forward with the proof. Resort to the doctrine
may be allowed only when (a) the event is of a kind
which does not ordinarily occur in the absence of negli-
gence; (b) other responsible causes, including the con-
duct of the plaintiff and third persons, are sufficiently
eliminated by the evidence; and (c) the indicated negli-
gence is within the scope of the defendant’s duty to the
plaintiff. Thus, it is not applicable when an unexplained
accident may be attributable to one of several causes, for
some of which the defendant could not be responsible
(FGU Insurance Corp. vs. G. P. Sarmiento Trucking Corp. et
al., G.R. No. 141910, August 6, 2002).
38. The doctrine can be invoked when and only
when, under the circumstances involved, direct evidence
is absent and not readily available. Hence, it has gener-
ally been held that the presumption of inference arising
CHAPTER 2 35
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 di-
rect evidence as to the precise cause of the accident and
all the facts and circumstances attendant on the occur-
rence clearly appear. Finally, once the actual cause of
injury is established beyond controversy, whether by the
plaintiff or by the defendant, no presumptions will be
involved and the doctrine becomes inapplicable when
the circumstances have been so completely eludicated
that no inference of defendant’s liability can reasonably
be made, whatever the source of the evidence (Ibid.).
39. The presumption of res ipsa loquitur therefore
applies when there is no direct proof or evidence of cause
of injury but the thing or instrumentality causing injury
is under the exclusive control and use of the defendant
and the accident is one which ordinarily does not hap-
pen unless one is negligent.
40. Res ipsa loquitur is an evidentiary presump-
tion, therefore, it is not to be invoked to overcome evi-
dence but to be applied only in its absence. Hence, when-
ever the doctrine is applied, the query is not whether
the accident rarely happens, but that whether when it
occurs, it is ordinarily the result of negligence.
41. Res ipsa loquitur has application only to the
law of negligence (63 AmJur 2d at 721). It is confined
only to cases of pure (non-contractual) tort since obvi-
ously the presumption of negligence in culpa contractual
immediately attaches by a failure of the covenant or its
tenor (FGU Insurance Corp. vs. G. P. Sarmiento Trucking
Corp. et al., supra).
42. Where the doctrine is applicable, all that the
plaintiff must prove is the accident itself; no other proof
of negligence is required beyond the accident itself. It
relates to the fact of an injury that sets out an inference
to the cause thereof or establishes the plaintiff’s prima
facie case. The doctrine rests on inference and not on
presumption. The facts of the occurrence warrant the
supposition of negligence and they furnish circumstan-
tial evidence of negligence when direct evidence is lack-

ing. The doctrine is based on the theory that the defen-
dant either knows the cause of the accident or has the
best opportunity of ascertaining it and the plaintiff, hav-
ing no knowledge thereof, is compelled to allege negli-
gence in general terms. In such instance, the plaintiff
relies on proof of the happening of the accident alone to
establish negligence. The doctrine provides a means by
which a plaintiff can pin liability on a defendant who, if
innocent, should be able to explain the care he exercised
to prevent the incident complained of. Thus, it is the
defendant’s responsibility to show that there was no neg-
ligence on his part (Perla Compania de Seguros, Inc. vs.
Sps. Sarangaya, G.R. No. 147746, October 25, 2005).
43. Whether a person is negligent or not is a ques-
tion of fact (Thermochem Incorporated v. Naval, G.R. No.
131541, 20 October 2000, 344 SCRA 76).
37
CHAPTER 3
NATURE OF LIABILITY
1. The responsibility of two or more persons Liability of

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

that the effect of the release upon co-conspirators shall
be determined in accordance with the intentions of the
parties. (Republic of the Philippines vs. Sandiganbayan, et
al., G.R. No. 92594, March 4, 1994).
4. In Zenith Radio Corp. vs. Hazeltine Research, Inc.,
the Supreme Court of the United States adopted the third
rule. The Court observed that “[t]o adopt the ancient
common-law rule would frustrate . . . partial settlements,
and thereby promote litigation, while adoption of the
First Restatement rule would create a trap for unwary
plaintiffs’ attorneys.” (Republic vs. Sandiganbayan, Ibid.).
Doctrine of 5. The obligation imposed by Article 2176 is de-
vicarious mandable not only for one’s own acts or omissions, but
liability also for those of persons for whom one is responsible.
defined (Art. 2180, NCC).
This is otherwise referred to as the doctrine of vi-
carious liability or imputed negligence.
Rationale 6. Explaining the doctrine, it was held that
“[w]ith respect to extra-contractual obligation arising
from negligence, whether of act or omission, it is com-
petent for the legislature to elect — and our Legislature
has so elected — to limit such liability to cases in which
the person upon whom such an obligation is imposed is
morally culpable or, on the contrary, for reasons of pub-
lic policy, to extend that liability, without regard to the
lack of moral culpability, so as to include responsibility
for the negligence of those persons whose acts or omis-
sions are imputable, by a legal fiction, to others who are
in a position to exercise an absolute or limited control
over them. The legislature which adopted our Civil Code
has elected to limit extra-contractual liability — with
certain well-defined exceptions — to cases in which
moral culpability can be directly imputed to the persons
to be charged. This moral responsibility may consist in
having failed to exercise due care in one’s own acts, or
in having failed to exercise due care in the selection and
control of one’s agents or servants, or in the control of
persons who, by reasons of their status, occupy a posi-
tion of dependency with respect to the person made
CHAPTER 3 39
NATURE OF LIABILITY
liable for their conduct.” (Cangco vs. Manila Railroad Co.,

38 Phil. 768 (1918).
7. The responsibility imposed arises by virtue
of a presumption juris tantum of negligence on the part
of the persons made responsible under the article, de-
rived from their failure to exercise due care and vigi-
lance over the acts of subordinates to prevent them from
causing damage. Negligence is imputed to them by law,
unless they prove the contrary. Thus, the last paragraph
of the article says that such responsibility ceases if it is
proved that the persons who might be held responsible
under it exercised the diligence of a good father of a
family (diligentissimi patris familias) to prevent damage.
It is clear, therefore, that it is not representation, nor
interest, nor even the necessity of having somebody else
answer for the damages caused by the persons devoid
of personality, but it is the non-performance of certain
duties of precaution and prudence imposed upon the
persons who become responsible by civil bond uniting
the actor to them, which forms the foundation of such
responsibility (Metro Manila Transit Corporation vs. Court
of Appeals, et al., G.R. No. 104408, June 21, 1993).
8. Vicarious liability is a primary and direct li-
ability. It is not subsidiary to the liability of the person
for whom one is made vicariously liable of. Although
the negligence is simply imputed in the sense that it
arises from the act or omission of the person under one’s
care or control, the act being punished is the negligent
act of the one made vicariously liable. Hence, he may be
proceeded against singly or together with the person for
whose acts or omissions he is made answerable for. This
was made clear by the Supreme Court in Cerezo vs.
Tuazon, G.R. No. 141538, March 23, 2004.
Pursuant to Article 2180 of the Civil Code that ac-
knowledges responsibility under a relationship of patria
potestas, a person may be held accountable not only for
his own direct culpable act or negligence but also for
those of others albeit predicated on his own supposed
failure to exercise due care in his supervisory authority
and functions (Vitug, Concurring Opinion, Valenzuela vs.
Court of Appeals, G.R. No. 115024 & 117944, February 7,

1996).
Vicarious 9. The father and, in case of his death or incapacity,
liability of the mother, are responsible for the damages caused by
parents the minor children who live in their company (Art. 2180,
NCC).
10. This principle of parental liability is a species
of what is frequently designated as vicarious liability, or
the doctrine of “imputed negligence” under Anglo-
American tort law, where a person is not only liable for
torts committed by himself, but also for torts committed
by others with whom he has a certain relationship and
for whom he is responsible. Thus, parental liability is
made a natural or logical consequence of the duties and
responsibilities of parents — their parental authority —
which includes the instructing, controlling and disciplin-
ing of the child (Tamargo, et al. vs. Court of Appeals, G.R.
No. 85044, June 3, 1992).
11. The civil liability imposed upon parents for
the torts of their minor children living with them, may
be seen to be based upon the parental authority vested
by the Civil Code upon such parents. The civil law as-
sumes that when an unemancipated child living with its
parents commits a tortious act, the parents were negli-
gent in the performance of their legal and natural duty
closely to supervise the child who is in their custody
and control. Parental liability is, in other words, anchored
upon parental authority coupled with presumed paren-
tal dereliction in the discharge of the duties accompany-
ing such authority (Cangco v. Manila Railroad Co., 36 Phil.
768 [1918]).
12. The parents are and should be held primarily
liable for the civil liability arising from criminal offenses
committed by their minor children under their legal au-
thority or control, or who live in their company, unless it
is proven that the former acted with the diligence of a
good father of a family to prevent such damages. That
primary liability is premised on the provisions of Article
101 of the Revised Penal Code with respect to damages
ex delicto caused by their children 9 years of age or un-
CHAPTER 3 41
NATURE OF LIABILITY
der, or over 9 but under 15 years of age who acted with-

out discernment; and, with regard to their children over
9 but under 15 years of age who acted with discern-
ment, or 15 years or over but under 21 years of age, such
primary liability shall be imposed pursuant to Article
2180 of the Civil Code. Under said Article 2180, the en-
forcement of such liability shall be effected against the
father and, in case of his death or incapacity, the mother.
This was amplified by the Child and Youth Welfare Code
which provides that the same shall devolve upon the
father and, in case of his death or incapacity, upon the
mother or, in case of her death or incapacity, upon the
guardian, but the liability may also be voluntarily as-
sumed by a relative or family friend of the youthful of-
fender (Libi, et al. vs. Intermediate Appellate Court, G.R.
No. 70890, September 18, 1992).
13. However, under the Family Code, this civil
liability is now without such alternative qualification,
the responsibility of the parents and those who exercise
parental authority over the minor offender. For civil li-
ability arising from quasi-delicts committed by minors,
the same rules shall apply in accordance with Articles
2180 and 2182 of the Civil Code, as so modified. (Libi, et
al. vs. Intermediate Appellate Court, supra).
14. Thus, “parents and other persons exercising
parental authority shall be civilly liable for the injuries
and damages caused by the acts or omissions of their
unemancipated children living in their company and un-
der their parental authority subject to the appropriate
defenses provided by law.’’ [2180(2)a and (4)a] (Art. 221,
Family Code of the Philippines).
15. After the effectivity of the Family Code, Re-
public Act 6809 was passed lowering the age of majority
from twenty-one to eighteen. Thus, parental authority
now ends when the child reaches the age of 18 instead
of 21. But even if the age of majority has been lowered to
eighteen, the vicarious liability of parents over children
living in their company extends until these children reach
the age of 21. This is the import of the provision of Re-
public Act 6809 which states that “[u]nless otherwise
provided, majority commences at the age of eighteen
years.’’ [But] nothing in this Code shall be construed to

derogate from the duty or responsibility of parents and
guardians for children and wards below twenty-one
years of age mentioned in the second and third para-
graphs of Article 2180 of the Civil Code. (RA 6809).
16. There had been some criticisms on this pro-
vision. It was argued that since the effect of emancipa-
tion is that parental authority ceases over them, to still
make the parents vicariously liable when they no longer
have authority over their emancipated children is with-
out any legal mooring. Indeed, if one reviews the ruling
of the Supreme Court in the past, the vicarious liability
of parents is always anchored on the parental authority
that they have over their unemancipated children.
The only justification for the provision of RA 6809
retaining the vicarious responsibility of parents until the
child concerned reaches the age of 21 lies in the require-
ment of the law that for the vicarious liability to arise,
the child must “live in the company” of their parents.
Under our custom, for as long as the child lives in the
company of the parents, the latter can and still do super-
vise them.
17. In a case where the act complained of was
committed by a minor child whose adoption is being
processed with the Court, the question brought before
the Supreme Court is who between the natural and the
adopting parents may be held liable. The Court settled
the issue by determining who has actual custody at the
time of the act complained of. It said: “Under Article 35
of the Child and Youth Welfare Code, parental authority
is provisionally vested in the adopting parents during
the period of trial custody, i.e., before the issuance of a
decree of adoption, precisely because the adopting par-
ents are given actual custody of the child during such
trial period. In the instant case, the trial custody period
either had not yet begun or had already been completed
at the time of the air rifle shooting; in any case, actual
custody of Adelberto was then with his natural parents,
not the adopting parents.” (Tamargo, et al. vs. Court of
Appeals, et al., G.R. No. 85044, June 3, 1992).
CHAPTER 3 43
NATURE OF LIABILITY
18. Guardians are liable for damages caused by Vicarious

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

graph encompasses negligent acts of employees acting
within the scope of their assigned task. The latter is an
expansion of the former in both employer coverage and
acts included. Negligent acts of employees, whether or
not the employer is engaged in a business or industry,
are covered so long as they were acting within the scope
of their assigned task, even though committed neither
in the service of the branches nor on the occasion of
their functions. For, admittedly, employees oftentimes
wear different hats. They perform functions which are
beyond their office, title or designation but which, nev-
ertheless, are still within the call of duty (Castilex Indus-
trial Corp. vs. Vasquez, et al., G.R. No. 132266, December
21, 1999).
22. Our Supreme Court has applied the fourth
paragraph to cases where the employer was engaged in
a business or industry such as truck operators (Lanuzo v.
Ping, 100 SCRA 205, 209-210 [1980]; Layugan v. Intermedi-
ate Appellate Court, 167 SCRA 363, 377 [1988]; and banks
(Pacific Banking Corporation v. Court of Appeals, 173 SCRA
102, 117 [1989]; Go v. Intermediate Appellate Court, 197
SCRA 22, 31 [1991]).
23. Under the fifth paragraph of Article 2180,
whether or not engaged in any business or industry, an
employer is liable for the torts committed by employees
within the scope of his assigned tasks. But it is necessary
to establish the employer-employee relationship.1 Once
this is done, the plaintiff must show, to hold the em-
ployer liable, that the employee was acting within the
scope of his assigned task when the tort complained of
was committed in order to make him liable (Martin v.
Court of Appeals, 205 SCRA 591 [1992]; Metro Manila Transit
1
In determining the existence of an employer-employee rela-
tionship, the elements that are generally considered are the following:
(a) the selection and engagement of the employee; (b) the payment of
wages; (c) the power of dismissal; and (d) the employer’s power to
control the employee with respect to the means and methods by which
the work is to be accomplished. It is the so-called “control test” that is
the most important element (Investment Planning Corp. of the Phils. vs.
The Social Security System, 21 SCRA 924)
CHAPTER 3 45
NATURE OF LIABILITY
Corp. v. Court of Appeals, 223 SCRA 521, 539 [1993]. At

this point, it is important to bear in mind that the rule is
entirely different in culpa contractual cases. In breach of
contract of carriage, Article 1759 of the Civil Code ex-
pressly makes the common carrier liable for intentional
assaults committed by its employees upon its passen-
gers. This Civil Code provision, together with the other
provisions on common carriers, were taken from Anglo-
American Law (Report of the Code Commission, 64).
There, the basis of the carrier’s liability for assaults on
passengers committed by its drivers rest either on (1)
the doctrine of respondent superior, or (2) the principle
that it is the carrier’s implied duty to transport the pas-
senger safely (53 ALR 2d 721-728; 732-734). Under the
first, which is the minority view, the carrier is liable only
when the act of the employee is within the scope of his
authority and duty. It is not sufficient that the act be
within the course of employment only. Under the sec-
ond view, upheld by the majority and also by the later
cases, it is enough that the assault happens within the
course of the employee’s duty. It is no defense for the
carrier that the act was done in excess of authority or in
disobedience of the carrier’s orders (10 Am. Jur. 105-107;
263-265). The carrier’s liability here is absolute in the
sense that it practically secures the passengers from as-
saults committed by its own employees (Dixie Motor
Coach Corp. vs. Toler, 1997 Ark. 1097, 126 S.W., 2d, 618;
Van Hoeffen vs. Columbia Taxicab Co., 179 Mo. App.
591, 162 S.W. 694; Brockway vs. Mordenti, 199 Misc. 898,
103 N.Y.S. 621; Korner vs. Cosgrove, 141 N.E. 265, 31
A.L.R. 1193).
As can be gleaned from Article 1759, the Civil Code
of the Philippines evidently follows the rule based on
the second view: (1) the special undertaking of the car-
rier requires that it furnish its passengers that full mea-
sure of protection afforded by the exercise of the high
degree of care prescribed by the law, inter alia from vio-
lence and insults at the hands of strangers and other
passengers, but above all, from the acts of the carrier’s
own servants charged with the passenger’s safety; (2)
said liability of the carrier from the servant’s violations
of duty to passengers, is the result of the former’s con-

fiding in the servant’s hands the performance of his con-
tract to safely transport the passenger, with the utmost
care prescribed by law; and (3) as between the carrier
and the passenger, the former must bear the risk of
wrongful acts or negligence of the carrier’s employees
against passengers, since it, and not the passengers, has
power to select and remove them (Maranan vs. Perez, et
al., G.R. No. L-22272, June 26, 1967 citing Texas Midland
R.R. vs. Monroe 110 Tex 97, 216 S.W. 388, 380, 390; and
Haver vs. Central Railroad Co., 43 L.R.A. 84, 85.)
Thus, “it is clear from the above Civil Code provi-
sion that common carriers cannot escape liability for the
death of or injuries to passengers through the negligence
and willful acts of the former’s employees, although such
employees may have acted beyond the scope of their
authority or in violation of the orders . . .” (Marchan vs.
Mendoza, et al., G.R. No. L-24471, August 30, 1968).
24. The rationale for the rule on vicarious liabil-
ity in quasi-delict has been adumbrated thus: what has
emerged as the modern justification for vicarious liabil-
ity is a rule of policy, deliberate allocation of a risk. The
losses caused by the torts of employees, which as a prac-
tical matter are sure to occur in the conduct of the
employer’s enterprise, are placed upon the enterprise
itself, as a required cost of doing business. They are
placed upon the employer because, having engaged in
an enterprise, which will on the basis of all past experi-
ence involve harm to others through the tort of employ-
ees, and sought to profit by it, it is just that he, rather
than the innocent injured plaintiff, should bear them;
and because he is better able to absorb them, and to
distribute them, through prices, rates or liability insur-
ance, to the public, and so to shift them to society, to the
community at large. Added to this is the makeweight
argument that an employer who is held strictly liable is
under the greatest incentive to be careful in the selec-
tion, instruction and supervision of his servants, and to
take every precaution to see that the enterprise is con-
ducted safely (Baliwag Transit vs. Court of Appeals, G.R.
No. 116110, May 15, 1996).
CHAPTER 3 47
NATURE OF LIABILITY
25. In Campo vs. Camarote, the basis of the pre-

sumption of negligence was explained in this wise: The
reason for the law is obvious. It is indeed difficult for
any person injured by the carelessness of a driver to
prove the negligence or lack of due diligence of the owner
of the vehicle in the choice of the driver. Were we to
require the injured party to prove the owner’s lack of
diligence, the right will in many cases prove illusory, as
seldom does a person in the community, especially in
the cities, have the opportunity to observe the conduct
of all possible car owners therein. So the law imposes
the burden of proof of innocence on the vehicle owner.
If the driver is negligent and causes damage, the law
presumes that the owner was negligent and imposes
upon him the burden of proving the contrary (MMTC
vs. Court of Appeals, et al. G.R. No. 116617 & 126395, No-
vember 16, 1998). The responsibility is not based, as in
the English Common Law, upon the principle of respon-
dent superior — if it were, the master would be liable in
every case and unconditionally. The liability is based on
Spanish law which imposes upon all persons who by
their fault or negligence, do injury to another, the obli-
gation of making good the damage caused (cf., Cangco
vs. Manila Railroad Co., supra).
26. Article 2180 provides for the solidary liabil-
ity of an employer for the quasi-delict committed by an
employee. The responsibility of employers for the negli-
gence of their employees in the performance of their
duties is primary and, therefore, the injured party may
recover from the employers directly, regardless of the
solvency of their employees (Victory Liner vs. Heirs of
Malecdan, G.R. No. 154278, December 27, 2002).
27. Before an employer may be held liable for
the negligence of his employee, the act or omission which
caused damage must have occurred while an employee
was in the actual performance of his assigned tasks or
duties (Francis High School vs. Court of Appeals, 194 SCRA
341).
28. In defining an employer’s liability for the acts
done within the scope of the employee’s assigned tasks,
the Supreme Court has held that this includes any act
done by an employee, in furtherance of the interests of

the employer or for the account of the employer at the
time of the infliction of the injury or damage. An em-
ployer is expected to impose upon its employees the
necessary discipline called for in the performance of any
act indispensable to the business and beneficial to their
employer (Filamer Christian Institute vs. Intermediate Ap-
pellate Court, 212 SCRA 637).
29. It has been held that an employee who uses
his employer’s vehicle in going from his work to a place
where he intends to eat or in returning to work from a
meal is not ordinarily acting within the scope of his em-
ployment in the absence of evidence of some special
business benefit to the employer. Evidence that by using
the employer’s vehicle to go to and from meals, an em-
ployee is enabled to reduce his time-off and so devote
more time to the performance of his duties supports the
findings that an employee is acting within the scope of
his employment while so driving the vehicle. (Castilex
vs. Vasquez, supra).
30. In the same vein, traveling to and from the
place of work is ordinarily a personal problem or con-
cern of the employee, and not a part of his services to his
employer. Hence, in the absence of some special benefit
to the employer other than the mere performance of the
services available at the place where he is needed, the
employee is not acting within the scope of his employ-
ment even though he uses his employer’s motor vehicle.
The employer may, however, be liable where he derives
some special benefit from having the employee drive
home in the employer’s vehicle as when the employer
benefits from having the employee at work earlier and,
presumably, spending more time at his actual duties.
Where the employee’s duties require him to circulate in
a general area with no fixed place or hours of work, or
to go to and from his home to various outside places of
work, and his employer furnishes him with a vehicle to
use in his work, the courts have frequently applied what
has been called the “special errand” or “roving commis-
sion” rule, under which it can be found that the em-
ployee continues in the service of his employer until he
CHAPTER 3 49
NATURE OF LIABILITY
actually reaches home. However, even if the employee

be deemed to be acting within the scope of his employ-
ment in going to or from work in his employer ’s
vehicle, the employer is not liable for his negligence
where at the time of the accident, the employee has left
the direct route to his work or back home and is pursu-
ing a personal errand of his own (Ibid.).
31. An employer who loans his motor vehicle to
an employee for the latter’s personal use outside of regu-
lar working hours is generally not liable for the
employee’s negligent operation of the vehicle during the
period of permissive use, even where the employer con-
templates that a regularly assigned motor vehicle will
be used by the employee for personal as well as busi-
ness purposes and there is some incidental benefit to the
employer. Even where the employee’s personal purpose
in using the vehicle has been accomplished and he has
started the return trip to his house where the vehicle is
normally kept, it has been held that he has not resumed
his employment, and the employer is not liable for the
employee’s negligent operation of the vehicle during the
return trip (Ibid.).
32. In Filamer Christian Institute vs. Court of
Appeals, G.R. No. 75112, October 16, 1990, an issue was
presented on whether the term “employer” as used in
Article 2180 is applicable to Filamer with reference to
Funtecha who was a working scholar. In disclaiming
liability, Filamer has invoked the provisions of the
Labor Code, 7 specifically Section 14, Rule X of Book III
which reads: “Sec. 14. Working scholars. — There is no
employer-employee relationship between students on the
one hand, and schools, colleges or universities on the
other, where students work for the latter in exchange for
the privilege to study free of charge; provided the
students are given real opportunity, including such
facilities as may be reasonable, necessary to finish their
chosen courses under such arrangement.”
Initially, the Supreme Court ruled that under the
just-quoted provision of law, Filamer cannot be consid-
ered as Funtecha’s employer. Funtecha belongs to that
special category of students who render service to the
school in exchange for free tuition. Funtecha worked for

Filamer for two hours daily for five days a week. He
was assigned to clean the school passageways from 4:00
a.m. to 6:00 a.m. with sufficient time to prepare for his
7:30 a.m. classes. As admitted by Agustin Masa in open
court, Funtecha was not included in the company pay-
roll.
However, on motion for reconsideration (G.R. No.
75112, August 17, 1992), the Supreme Court reconsid-
ered its decision and ruled that Funtecha being a work-
ing student (part-time Janitor) and a scholar of Filamer,
he was, in relation to the school, an employee even if he
was assigned to clean the school premises for only two
(2) hours in the morning of each school day.
33. Article 2180, in relation to Art. 2176, of the
Civil Code provides that the employer of a negligent
employee is liable for the damages caused by the latter.
When an injury is caused by the negligence of an em-
ployee there instantly arises a presumption of the law
that there was negligence on the part of the employee
either in the selection of his employee or in the supervi-
sion over him after such selection. The presumption how-
ever may be rebutted by a clear showing on the part of
the employer that it had exercised the care and diligence
of a good father of a family in the selection and supervi-
sion of his employee. Hence, to escape solidary liability
for quasi-delict committed by an employee, the employer
must adduce sufficient proof that it exercised such de-
gree of care (Baliwag Transit vs. Court of Appeals, et al.,
G.R. No. 116624, September 20, 1996).
This provision of law is not founded on the prin-
ciple of respondeat superior, but on bonus pater familias.
Respondeat superior (Latin for “let the superior reply”)
holds that an employer is liable for negligent acts or
omissions of their employees that result in bodily harm
or property damage to third parties if these acts are done
in the course of the employment. “The theory of pre-
sumed negligence, in contrast with the American doc-
trine of respondeat superior, where the negligence of the
employee is conclusively presumed to be the negligence
of the employer, is clearly deducible from the last para-
CHAPTER 3 51
NATURE OF LIABILITY
graph of Article 2180 of the Civil Code which provides

that the responsibility therein mentioned shall cease if
the employers prove that they observed all the diligence
of a good father of a family to prevent damages” (Poblete
vs. Fabros, G.R. No. L-29803, September 14, 1979 also cited
in Tiu vs. Arriesgado, et al., G.R. No. 138060, September 1,
2004).
Under the civil law, an employer is liable for the
negligence of his employees in the discharge of their
respective duties, the basis of which liability is not
respondeat superior, but the relationship of pater familias,
which theory bases the liability of the master ultimately
on his own negligence and not on that of his servant
(Cuison v. Norton and Harrison Co., 55 Phil. 18). Before
an employer may be held liable for the negligence of his
employee, the act or omission which caused damage
must have occurred while an employee was in the ac-
tual performance of his assigned tasks or duties (Francis
High School vs. Court of Appeals, 194 SCRA 341). In
defining an employer’s liability for the acts done within
the scope of the employee’s assigned tasks, the Supreme
Court has held that this includes any act done by an
employee, in furtherance of the interests of the employer
or for the account of the employer at the time of the
infliction of the injury or damage (Filamer Christian Insti-
tute vs. Intermediate Appellate Court, 212 SCRA 637).
Under the civil law on culpa aquiliana, an employer
is liable for the negligence of his employees in the dis-
charge 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 mas-
ter ultimately on his own negligence and not on that of
his servant (Cuison v. Norton and Harrison Co., 55 Phil.
18). This is the notable peculiarity of the Spanish law of
negligence. It is, of course, in striking contrast to the
American doctrine that, in relations with strangers, the
negligence of the servant is conclusively the negligence
of the master (Cerf vs. Medel, G.R. No. 10351, December
24, 1915).
34. The liability of the employer here would not
be subsidiary but solidary with his driver (unless said
employer can prove there was no negligence on his part

at all, that is, if he can prove due diligence in the selec-
tion and supervision of his driver) (See 8th par. of Art.
2180, Art. 2194, Civil Code; also People vs. Navoa, 132 SCRA
412; People vs. Tirol, 102 SCRA 558; People vs. Sandaydiego,
82 SCRA 120).
Under Article 2180 of the Civil Code, the liability
of the employer is direct or immediate. It is not condi-
tioned upon prior recourse against the negligent em-
ployee and a prior showing of insolvency of such em-
ployee (L.G. Foods Corporation and Victorino Gabor, Vice-
President and General Manager, Petitioners, versus Hon.
Philadelfa B. Pagapong-Agraviador, et al., G.R. No. 158995,
35. The responsibility treated of in this article
shall cease when the persons herein mentioned prove
that they observed all the diligence of a good father of a
family to prevent damage (Art. 2180, NCC, last par.).
36. The “diligence of a good father” referred to
in the last paragraph of the aforecited statute means dili-
gence in the selection and supervision of employees.
Thus, when an employee, while performing his duties,
causes damage to persons or property due to his own
negligence, there arises the juris tantum presumption that
the employer is negligent, either in the selection of the
employee or in the supervision over him after the selec-
tion (Pantranco North Express, Inc. v. Baesa, G.R. Nos. 79050-
51, 14 November 1989, 179 SCRA 384).
37. Supervision includes the formulation of suit-
able rules and regulation for the guidance of its employ-
ees and the issuance of proper instructions intended for
the protection of the public and persons with whom the
employer has relations through his employees (Bahia v.
Litonjua and Leynes, supra, at p. 628; Phoenix Construction,
Inc. v. Intermediate Appellate Court, 148 SCRA 353 [1987]).
An employer is expected to impose upon its employees
the necessary discipline called for in the performance of
any act indispensable to the business and beneficial to
their employer (Filamer Christian Institute vs. IAC, et al.,
G.R. No. 75112, August 17, 1992).
CHAPTER 3 53
NATURE OF LIABILITY
38. Employers 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.
39. In the selection of prospective employees,
employers are required to examine them as to their quali-
fications, experience and service records. With respect
to the supervision of employees, employers must for-
mulate standard operating procedures, monitor their
implementation and impose disciplinary measures for
breaches thereof. These facts must be shown by concrete
proof, including documentary evidence (Victory Liner vs.
Malecdan, supra).
Case law teaches that for an employer to have ex-
ercised the diligence of a good father of a family, he
should not be satisfied with the applicant’s mere pos-
session of a professional driver’s license; he must also
carefully examine the applicant for employment as to
his qualifications, his experience and record of service.
(Yambao vs. Zuniga, et al., G.R. No. 146173, December 11,
2003).
40. In a case, it was ruled that the employer did
not exercise due supervision after his selection when it
was noted that the employer did not present any proof
that she drafted and implemented training programs and
guidelines on road safety for her employees. The record
is bare of any showing that the employer required the
employee (Venturina) to attend periodic seminars on
road safety and traffic efficiency. Hence, the employer
cannot claim exemption from any liability arising from
the recklessness or negligence of Venturina (Ibid.).
41. The failure of the defendant company to pro-
duce in court any ‘record’ or other documentary proof
tending to establish that it had exercised all the dili-
gence of a good father of a family in the selection and
supervision of its drivers and buses, notwithstanding
the calls therefor by both the trial court and the oppos-
ing counsel, argues strongly against its pretensions. The
attempt to prove its “deligentissimi patris familias” in
the selection and supervision of employees through oral
evidence must fail as it was unable to buttress the same
with any other evidence, object or documentary, which

might obviate the apparent biased nature of the testi-
mony (cf., Syki vs. Begasa, G.R. No. 149149, October 23,
2003 citing Metro Manila Transit Corporation vs. Court of
Appeals, 223 SCRA 521 [1993]).
42. In the selection of prospective employees, em-
ployers are required to examine them as to their qualifi-
cations, experience, and service records.
On the other hand, with respect to the supervision
of employees, employers should formulate standard op-
erating procedures, monitor their implementation, and
impose disciplinary measures for breaches thereof. To
establish these factors in a trial involving the issue of
vicarious liability, employers must submit concrete proof,
including documentary evidence (Metro Manila Transit
Corporation vs. Court of Appeals, 298 SCRA 495 [1998]).
43. Based therefore on jurisprudential law, the
employer must not merely present testimonial evidence
to prove that he observed the diligence of a good father
of a family in the selection and supervision of his em-
ployee, but he must also support such testimonial evi-
dence with concrete or documentary evidence. The rea-
son for this is to obviate the biased nature of the
employer’s testimony or that of his witnesses (Syki vs.
Begasa, supra, citing MMTC vs. CA, 298 SCRA 495).
44. In a case, the employer’s evidence consisted
entirely of testimonial evidence. He testified that before
he hired Elizalde Sablayan, he required him to submit a
police clearance in order to determine if he was ever
involved in any vehicular accident. He also required
Sablayan to undergo a driving test conducted by his
mechanic, Esteban Jaca. Employer claimed that he, in
fact, accompanied Sablayan during the driving test and
that during the test, Sablayan was taught to read and
understand traffic signs like “Do Not Enter,” “One Way,”
“Left Turn” and “Right Turn.” The alleged police clear-
ance was not however presented nor the results of
Sablayan’s driving test. The records of the regular in-
spections that mechanic allegedly conducted were not
also produced. The Supreme Court ruled that unsub-
CHAPTER 3 55
NATURE OF LIABILITY
stantiated and self-serving testimonies were, without

doubt, insufficient to overcome the legal presumption
that there was negligence in the selection and supervi-
sion of the erring driver (Syki vs. Begasa, supra).
45. To fend off vicarious liability, employers must
submit concrete proof, including documentary evidence,
that they complied with everything that was incumbent
on them (Perla Compania de Seguros vs. Sps. Sarangaya,
G.R. No. 147746, October 25, 2005).
46. In an action based on quasi delict, the regis-
tered owner of a motor vehicle is solidarily liable for the
injuries and damages caused by the negligence of the
driver, in spite of the fact that the vehicle may have al-
ready been the subject of an unregistered Deed of Sale
in favor of another person. Unless registered with the
Land Transportation Office, the sale — while valid and
binding between the parties — does not affect third par-
ties, especially the victims of accidents involving the said
transport equipment. Thus, in a case the registered owner
was held liable for the acts of the driver employed by its
former lessee who has become the owner of that vehicle
by virtue of an unregistered Deed of Sale (Equitable Leas-
ing Corporation vs. Suyom, et al., G.R. No. 143360, Septem-
ber 5, 2002).
47. But may the terms “employers” and “owners
and managers of an establishment or enterprise” (dueños
o directores de un establicimiento o empresa) used in
Article 2180 of the Civil Code, formerly Article 1903 of
the old Code, embrace the manager of a corporation own-
ing a truck, the reckless operation of which allegedly
resulted in the vehicular accident from which the dam-
age arose?
The Supreme Court held that those terms do not
include the manager of a corporation. It may be gath-
ered from the context of Article 2180 that the term “man-
ager” (“director” in the Spanish version) is used in the
sense of “employer”. Hence, under the allegations of
the complaint, no tortious or quasi-delictual liability can
be fastened on the manager of Phil-American Forward-
ers, Inc. in connection with the vehicular accident
already mentioned because he himself may be regarded

as an employee or dependiente of his employer, Phil-
American Forwarders, Inc. (Phil Bus Rabbit vs. Phil-Ameri-
can Forwarders, 63 SCRA 232).
Employer’s 48. Under Article 2180 of the New Civil Code,
vicarious employers are primarily liable for their negligence ei-
liability under ther in the selection or supervision of their employees.
Art. 2180 and This liability is independent of the employee’s own li-
employer’s
ability for fault or negligence and is distinct from the
subsidiary
liability under subsidiary civil liability under Article 103 of the Revised
Art. 100 of Penal Code. The civil action against the employer may
RPC distin- therefore proceed independently of the criminal action
guished pursuant to Rule 111 Section 3 of the Rules of Court.
49. The vicarious liability of an employer for the
fault or negligence of an employee is founded on at least
two specific provisions of law. The first is expressed in
Article 2176, in relation to Article 2180, of the Civil Code
which would allow an action predicated on quasi-delict
to be instituted by the injured party against the employer
for an act or omission of the employee and would neces-
sitate only a preponderance of evidence in order to pre-
vail. Here, the liability of the employer for the negligent
conduct of the subordinate is direct and primary subject
to the defense of due diligence in the selection and su-
pervision of the employee. The enforcement of the judg-
ment against the employer for an action based on Ar-
ticle 2176 does not require the employee to be insolvent
since the nature of the liability of the employer with that
of the employee, the two being statutorily considered
joint tortfeasors, is solidary. The second, predicated on
Article 103 of the Revised Penal Code, provides that an
employer may be held subsidiarily liable for a felony
committed by his employee in the discharge of his duty.
This liability attaches when the employee is convicted
of a crime done in the performance of his work and is
found to be insolvent that renders him unable to prop-
erly respond to the civil liability adjudged (Rafael Reyes
Trucking Corporation vs. People et al., G.R. No. 129029, April
3, 2000).
50. In negligence cases, the aggrieved party may
sue the negligent party under (1) Article 100 of the
CHAPTER 3 57
NATURE OF LIABILITY
Revised Penal Code, for civil liability ex delicto; or

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

these two civil liabilities are distinct and independent of
each other, the failure to recover in one will not neces-
sarily preclude recovery in the other (Equitable Leasing
Corp. vs. Suyom, et al., supra).
51. Distinction should thus be made between the
subsidiary liability of the employer under the Revised
Penal Code and the employer’s primary liability under
the Civil Code which is quasi-delictual or tortious in char-
acter.
The first type of liability is governed by Articles
102 and 103 of the Revised Penal Code while the second
kind is governed by the provisions of the Civil Code.
Under Article 103 of the Revised Penal Code, liability
originates from a delict committed by the employee who
is primarily liable therefor and upon whose primary li-
ability his employer’s subsidiary liability is to be based.
Before the employer’s subsidiary liability may be pro-
ceeded against, it is imperative that there should be a
criminal action whereby the employee’s criminal negli-
gence or delict and corresponding liability therefor are
proved. If no criminal action was instituted, the
employer’s liability would not be predicated under Ar-
ticle 103. The conviction of the employee primarily li-
able is a condition sine qua non for the employer’s sub-
sidiary liability. There can be no automatic subsidiary
liability of defendant employer under Article 103 of the
Revised Penal Code where his employee has not been
previously criminally convicted (Franco, et al. vs. Inter-
mediate Appellate Court, et al., G.R. No. 71137, October 5,
1989). But upon his employee’s conviction, and subse-
quent proof of inability to pay, it is already a settled rule
that the subsidiary liability of an employer automati-
cally arises (cf., Alvarez vs. Court of Appeals, et al., G.R.
No. L-59621, February 23, 1998).
52. As elsewhere mentioned, an employer’s li-
ability based on a quasi-delict is primary and direct, while
the employer’s liability based on a delict is merely sub-
sidiary. “The words “primary and direct,” as contrasted
with “subsidiary,” refer to the remedy provided by law
for enforcing the obligation rather than to the character
CHAPTER 3 59
NATURE OF LIABILITY
and limits of the obligation. Although liability under

Article 2180 originates from the negligent act of the em-
ployee, the aggrieved party may sue the employer di-
rectly. When an employee causes damage, the law pre-
sumes that the employer has himself committed an act
of negligence in not preventing or avoiding the damage.
This is the fault that the law condemns. While the em-
ployer is civilly liable in a subsidiary capacity for the
employee’s criminal negligence, the employer is also civ-
illy liable directly and separately for his own civil negli-
gence in failing to exercise due diligence in selecting
and supervising his employee. The idea that the
employer’s liability is solely subsidiary is wrong” (Cerezo
vs. Tuazon, G.R. No. 141538, March 23, 2004).
53. Prescinding therefrom, the driver is not an
indispensable party in an action for damages against
the employer. An indispensable party is one whose in-
terest is affected by the court’s action in the litigation,
and without whom no final resolution of the case is pos-
sible. However, since the employer’s liability in an ac-
tion for a quasi-delict is not only solidary, it is also pri-
mary and direct, the driver is not an indispensable party
to the final resolution of the action for damages against
the employer. The responsibility of two or more persons
who are liable for a quasi-delict is solidary. Where there
is a solidary obligation on the part of debtors, as in this
case, each debtor is liable for the entire obligation. Hence,
each debtor is liable to pay for the entire obligation in
full. There is no merger or renunciation of rights, but
only mutual representation. Where the obligation of the
parties is solidary, either of the parties is indispensable,
and the other is not even a necessary party because com-
plete relief is available from either (Ibid.).
54. Whoever pays for the damage caused by his
dependents or employees may recover from the latter
what he has paid or delivered in satisfaction of the claim
(Art. 2181, NCC). In this sense, it may be said that the
employer is held solidarily liable only for purposes of
enforcement of liability by the aggrieved party. As be-
tween him and his employee, the employer is not really
held legally liable because he can always recover what
he has paid from the erring employee.
Vicarious 55. But “in motor vehicle mishaps, the owner is

liability of solidarily liable with his driver, if the former, who was
owner of in the vehicle, could have, by the use of the due dili-
vehicle
gence, prevented the misfortune.” (Art. 2184, NCC) The
provision of Art. 2181 may not be invoked by him be-
cause the said article covers only the cases mentioned in
Art. 2180.
56. Every owner of a motor vehicle shall file with
the proper government office a bond executed by a gov-
ernment-controlled corporation or office, to answer for
damages to third persons. The amount of the bond and
other terms shall be fixed by the competent public offi-
cial (Article 2186, NCC).
57. The owner of an automobile, present in the
vehicle, is not liable for the negligent acts of a compe-
tent driver unless such acts are continued for such a
length of time as to give the owner a reasonable oppor-
tunity to observe them and to direct the driver to desist
therefrom, and to fail to do so. If a competent driver of
an automobile in which the owner thereof is at the time
present, by a sudden act of negligence, without the owner
having a reasonable opportunity to prevent the act or its
continuance, violates the law, the owner of the automo-
bile is not responsible, either civilly or criminally, there-
for. The act complained of must be continued in the pres-
ence of the owner for such a length of time that he, by
acquiescence, makes his driver’s act his own (Chapman
vs. Underwood, G.R. No. 9010, March 28, 1914).
Also, an owner of a vehicle cannot be held liable
for an accident involving the said vehicle if the same
was driven without his consent or knowledge and by
a person not employed by him (Duavit vs. Court of
Appeals, et al., G.R. No. 82318, May 18, 1989).
Vicarious 58. The Government of the Philippine Islands is
liability of not liable in damages for the negligent acts of its regular
State officers or employees in the performance of their ordi-
nary functions (see Lung Chea Kung Kee & Co vs. Aldanese,
G.R. No. L-21362, March 6, 1924). The State is responsible
only when it acts through a special agent (Art. 2180, 6th
par.).
CHAPTER 3 61
NATURE OF LIABILITY
59. The liability of the State has two aspects,

namely: 1. Its public or governmental aspects where it is
liable for the tortious acts of special agents only. 2. Its
private or business aspects (as when it engages in pri-
vate enterprises) where it becomes liable as an ordinary
employer. (p. 961, Civil Code of the Philippines, Annotated,
Paras, 1986 Ed.).
In this jurisdiction, the State assumes a limited
liability for the damage caused by the tortious acts or
conduct of its special agent. Under paragraph 6 of Art.
2180, the State has voluntarily assumed liability for acts
done through special agents. The State’s agent, if a pub-
lic official, must not only be specially commissioned to
do a particular task but that such task must be foreign to
said official’s usual governmental functions. If the State’s
agent is not a public official, and is commissioned to
perform non-governmental functions, then the State as-
sumes the role of an ordinary employer and will be held
liable as such for its agent’s tort. Where the government
commissions a private individual for a special govern-
mental task, it is acting through a special agent within
the meaning of the provision. (Fontanilla, et al. vs.
Maliaman, et al., G.R. No. 55963, December 1, 1989 citing
Torts and Damages, Sangco, p. 347, 1984 Ed.).
60. A special agent “is one who receives a defi-
nite and fixed order or commission, foreign to the exer-
cise of the duties of his office if he is a special official) so
that in representation of the state and being bound to
act as an agent thereof he executed the trust confided to
him. This concept does not apply to any executive agent
who is an employee of the active administration and
who in his own responsibility performs the functions
which are inherent in and naturally pertain to his office
and which are regulated by law and the regulations.”
(E. Meritt vs. Government of Philippine Island, G.R. No.
11154, March 21, 1916 citing Supreme Court of Spain,
May 18, 1904; 98 Jur. Civ., 389, 390).
61. The Supreme Court of Spain in defining the
scope of this paragraph said: “[t]hat the obligation to
indemnify for damages which a third person causes an-
other by his fault or negligence is based, as is evidenced
by the same Law 3, Title 15, Partida 7, on that the person

obligated, by his own fault or negligence, takes part in
the act or omission of the third party who caused the
damage. It follows therefrom that the State by virtue of
such provision of law, is not responsible for the dam-
ages suffered by private individuals in consequence of
acts performed by its employees in the discharge of the
functions pertaining to their office, because neither fault
nor even negligence can be presumed on the part of the
state in the organization of branches of the public ser-
vice and in the appointment of its agents; on the con-
trary, we must presuppose all foresight humanly pos-
sible on its part in order that each branch of service serves
the general weal and that of private persons interested
in its operation. Between these latter and the state there-
fore, no relations of a private nature governed by the
civil law can arise except in a case where the state acts as
a judicial person capable of acquiring rights and con-
tracting obligations.” (Supreme Court of Spain, January
7, 1898; 83 Jur. Civ., 24 cited in E. Meritt vs. Government of
Philippine Islands, supra).
62. Article 2180 of the Civil Code establishes a
rule of liability, not suability. The government may be
held liable under this rule only if it first allows itself to
be sued through any of the accepted forms of consent.
Moreover, the agent performing his regular functions is
not a special agent even if he is so denominated, as in
the case at bar. No less important, the said provision
appears to regulate only the relations of the local state
with its inhabitants and, hence, applies only to the Phil-
ippine government and not to foreign governments im-
pleaded in our courts (United States of America vs. Guinto,
et al., G.R. No. 76607, February 26, 1990).
Provinces, 63. As for local government units, “provinces, cit-
cities and ies and municipalities shall be liable for damages for the
municipalities death of, or injuries suffered by, any person by reason of
the defective condition of roads, streets, bridges, public
buildings, and other public works under their control or
supervision’’ (Article 2189, NCC).
64. Article 2189 of the Civil Code constitutes a
particular prescription making “provinces, cities and
CHAPTER 3 63
NATURE OF LIABILITY
municipalities . . . liable for damages for the death of, or

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

their charters grant them the competence to sue and be
sued. Nevertheless, they are generally not liable for torts
committed by them in the discharge of governmental
functions and can be held answerable only if it can be
shown that they were acting in a proprietary capacity.”
However, with the passage of the Local Govern-
ment Code in 1992, two schools of thought emerged
regarding Section 24. One holds on to the doctrine
announced in San Fernando case, supra, that the munici-
pality is answerable only when it is acting in propri-
etary capacity. The other postulates that local govern-
ment units are liable for death or injury to persons or
damage to property, without any qualification as none
is found in the legal provision.
Vicarious 69. Teachers or heads of establishments of arts
liability of and trades shall be liable for damages caused by their
teachers and pupils and students or apprentices, so long as they re-
heads of main in their custody (Art. 2180, NCC, 7th par.).
establish-
ments of arts 70. In the case of Exconde vs. Capuno, et al., G.R.
and trade No. L-10134, June 29, 1957, the Supreme Court interpreted
the provision to mean that “teachers or directors of arts
and trades are liable for any damages caused by their
pupils or apprentices while they are under their cus-
tody, but this provision only applies to an institution of
arts and trades and not to any academic educational
institution.”
Also in Mercado vs. Court of Appeals, G.R. No.
L-14342, May 30, 1960, it was said that Article 2180 of the
new Civil Code contemplates a situation where the pu-
pil lives and boards with the teacher, such that the con-
trol, direction and influence on the pupil supersede those
of the parents. In these circumstances the control or in-
fluence over the conduct and actions of the pupil would
pass from the father and mother to the teacher, and so
would the responsibility for the torts of the pupil.
71. However, in Amadora vs. Court of Appeals, et
al., G.R. No. L-47745, April 15, 1988, it was clarified that
the provision in Article 2180 of the Civil Code should
apply to all schools, academic as well as non-academic.
CHAPTER 3 65
NATURE OF LIABILITY
Where the school is academic rather than technical or

vocational in nature, responsibility for the tort commit-
ted by the student will attach to the teacher in charge of
such student, following the first part of the provision.
This is the general rule. In other words, teachers in gen-
eral shall be liable for the acts of their students except
where the school is technical in nature, in which case it
is the head thereof who shall be answerable. There is
really no substantial distinction between the academic
and the non-academic schools insofar as torts commit-
ted by their students are concerned. The same vigilance
is expected from the teacher over the students under his
control and supervision, whatever the nature of the
school where he is teaching. Article 2180 of the Civil
Code provides: “Lastly, teachers or heads of establish-
ments of arts and trades shall be liable for damages
caused by their pupils and students or apprentices so
long as they remain in their custody.” Following the
canon of reddendo singula singulis, “teachers should ap-
ply to the words “pupils and student’s and “heads of
establishments of arts and trades” to the word “appren-
tices.”
72. The reason for the disparity can be traced to
the fact that historically the head of the school of arts
and trades exercised a closer tutelage over his pupils
than the head of the academic school. The old schools of
arts and trades were engaged in the training of artisans
apprenticed to their master who personally and directly
instructed them on the technique and secrets of their
craft. The head of the school of arts and trades was such
a master and so was personally involved in the task of
teaching his students, who usually even boarded with
him and so came under his constant control, supervi-
sion and influence. By contrast, the head of the academic
school was not as involved with his students and exer-
cised 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, be-
cause 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 enrollment,
and the corresponding diminution of the direct and per-
sonal contract of their heads with the students. Article
2180, however, remains unchanged. In its present state,
the provision must be interpreted by the Court accord-
ing to its clear and original mandate until the legisla-
ture, taking into account the changes in the situation
subject to be regulated, sees fit to enact the necessary
amendment.
73. The rationale of such liability of school heads
and teachers for the tortious acts of their pupils and
students, so long as they remain in their custody, is that
they stand, to a certain extent, as to their pupils and
students, in loco parentis and are called upon to “exercise
reasonable supervision over the conduct of the child”
This is expressly provided for in Articles 349, 350 and
352 of the Civil Code. In the law of torts, the governing
principle is that the protective custody of the school
heads and teachers is mandatorily substituted for that
of the parents, and hence, it becomes their obligation as
well as that of the school itself to provide proper super-
vision of the students’ activities during the whole time
that they are at attendance in the school, including re-
cess time, as well as to take the necessary precautions to
protect the students in their custody from dangers and
hazards that would reasonably be anticipated, includ-
ing injuries that some students themselves may inflict
willfully or through negligence on their fellow students.
The basis of the presumption of negligence of Art. 1903
(now 2180) is some culpa in vigilando that the parents,
teachers, etc., are supposed to have incurred in the exer-
cise of their authority and where the parent places the
child under the effective authority of the teacher, the
latter, and not the parent, should be the one answerable
for the torts committed while under his custody, for the
reason that the parent is not supposed to interfere with
the discipline of the school nor with the authority and
supervision of the teacher while the child is under in-
struction. The school itself, likewise, has to respond for
the fault or negligence of its school head and teachers
CHAPTER 3 67
NATURE OF LIABILITY
under the same cited article (Palisoc, et al. vs. Brillantes, et

al., G.R. No. L-29025, October 4, 1971).
74. The phrase used in the cited article — “so
long as (the students) remain in their custody” means
the protective and supervisory custody that the school
and its head and teachers exercise over the pupils and
students for as long as they are at attendance in the
school, including recess time. There is nothing in the
law that requires that for such liability to attach, the
pupil or student who commits the tortious act must live
and board in the school, as erroneously held by the dicta
in Mercado (as well as in Exconde) and which must now
be deemed to have been set aside by the decision in
Palisoc, et al. vs. Brillantes, et al.
75. To repeat Palisoc v. Brillantes, the student need
not be boarding with the school authorities. This does
not necessarily mean that such custody be co-terminous
with the semester, beginning with the start of classes
and ending upon the close thereof, and excluding the
time before or after such period, such as the period of
registration, and in the case of graduating students, the
period before the commencement exercises.
In the view of the Supreme Court, the student is in
the custody of the school authorities as long as he is
under the control and influence of the school and within
its premises, whether the semester has not yet begun or
has already ended. It is too tenuous to argue that the
student comes under the discipline of the school only
upon the start of classes notwithstanding that before that
day he has already registered and thus placed himself
under its rules. Neither should such discipline be deemed
ended upon the last day of classes notwithstanding that
there may still be certain requisites to be satisfied for
completion of the course, such as submission of reports,
term papers, clearances and the like. During such peri-
ods, the student is still subject to the disciplinary au-
thority of the school and cannot consider himself re-
leased altogether from observance of its rules. As long
then as it can be shown that the student is in the school
premises in pursuance of a legitimate student objective,
in the exercise of a legitimate student right, and even in

the enjoyment of a legitimate student privilege, the re-
sponsibility 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 com-
pany of his classmates and friends and enjoying the am-
bience and atmosphere of the school, he is still within
the custody and subject to the discipline of the school
authorities under the provisions of Article 2180 (Amadora
vs. Court of Appeals, supra)
76. During all these occasions, it is obviously the
teacher-in-charge who must answer for his students’
torts, in practically the same way that the parents are
responsible for the child when he is in their custody. The
teacher-in-charge is the one designated by the dean, prin-
cipal, or other administrative superior to exercise super-
vision over the pupils in the specific classes or sections
to which they are assigned. It is not necessary that at the
time of the injury, the teacher be physically present and
in a position to prevent it. Custody does not connote
immediate and actual physical control but refers more
to the influence exerted on the child and the discipline
instilled in him as a result of such influence. Thus, for
the injuries caused by the student, the teacher and not
the parent shall be held responsible if the tort was com-
mitted within the premises of the school at any time
when its authority could be validly exercised over him
(Ibid.).
77. The teacher will be held liable not only when
he is acting in loco parentis for the law does not require
that the offending student be of minority age. Unlike
the parent, who will be liable only if his child is still a
minor, the teacher is held answerable by the law for the
act of the student under him regardless of the student’s
age. Thus, in the Palisoc case, liability attached to the
teacher and the head of the technical school although
the wrongdoer was already of age. In this sense, Article
2180 treats the parent more favorably than the teacher
(Ibid.).
78. Likewise, “the phrase used in [Art. 2180 —
‘so long as (the students) remain in their custody’ means
CHAPTER 3 69
NATURE OF LIABILITY
the protective and supervisory custody that the school

and its heads and teachers exercise over the pupils and
students for as long as they are at attendance in the
school, including recess time. A “recess,” as the concept
is embraced in the phrase “at attendance in the school,”
contemplates a situation of temporary adjournment of
school activities where the student still remains within
call of his mentor and is not permitted to leave the school
premises, or the area within which the school activity is
conducted. Recess by its nature does not include dis-
missal. Likewise, the mere fact of being enrolled or be-
ing in the premises of a school without more does not
constitute “attending school” or being in the “protective
and supervisory custody” of the school, as contemplated
in the law (Salvosa, et al. vs. Intermediate Appellate Court,
G.R. No. L-70458, October 5, 1988).
79. The liability imposed by this article is sup-
posed to fall directly on the teacher or the head of the
school of arts and trades and not on the school itself. If
at all, the school, whatever its nature, may be held to
answer for the acts of its teachers or even of the head
thereof under the general principle of respondeat supe-
rior, but then it may exculpate itself from liability by
proof that it had exercised the diligence of a bonus pater-
familias (Amadora vs. Court of Appeals, supra).
80. However, under Article 218 of the Family
Code, the following shall have special parental author-
ity over a minor child while under their supervision,
instruction or custody: (1) the school, its administrators
and teachers; or (2) the individual, entity or institution
engaged in child care. This special parental authority
and responsibility applies to all authorized activities,
whether inside or outside the premises of the school,
entity or institution. Thus, such authority and responsi-
bility applies to field trips, excursions and other affairs
of the pupils and students outside the school premises
whenever authorized by the school or its teachers (St.
Mary’s Academy vs. Carpitanos, et al., G.R. No. 143363,
February 6, 2002).
81. Those given the authority and responsibility
under Article 218 of the Family Code, the school, its
administrators and teachers shall be principally and

solidarily liable for damages caused by the acts or omis-
sions of the unemancipated minor. The parents, judicial
guardians or the persons exercising substitute parental
authority over said minor shall be subsidiarily liable.
The respective liabilities shall not apply [only] if it is
proved that they exercised the proper diligence required
under the particular circumstances (cf., Article 219, Fam-
ily Code).
82. In PSBA v. CA, (G.R. No. 84698, 4 February
1992) the Court held that Article 2180 of the Civil Code
was not applicable where a student had been injured by
one who was an outsider or by one over whom the school
did not exercise any custody or control or supervision.
83. However, in Soliman, Jr. vs. Hon. Tuazon, G.R.
No. 66207, May 18, 1992, the Supreme Court emphasized
that an implied contract may be held to be established
between a school which accepts students for enrollment,
on the one hand, and the students who are enrolled, on
the other hand, which contract results in obligations for
both parties: “When an academic institution accepts stu-
dents for enrollment, there is established a contract be-
tween them, resulting in bilateral obligations which par-
ties are bound to comply with. For its part, the school
undertakes to provide the student with an education
that would presumably suffice to equip him with the
necessary tools and skills to pursue higher education or
a profession. On the other hand, the student covenants
to abide by the school’s academic requirements and ob-
serve its rules and regulations. Institutions of learning
must also meet the implicit or ‘built-in’ obligation of
providing their students with an atmosphere that pro-
motes or assists in attaining its primary undertaking of
imparting knowledge. Certainly, no student can absorb
the intricacies of physics or higher mathematics or ex-
plore the realm of the arts and other sciences when bul-
lets 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 break-
down thereof.”
CHAPTER 3 71
NATURE OF LIABILITY
84. Also, the school may be held liable in its ca-

pacity as employer. Hence, the negligent act of a profes-
sor who fails to observe the rules of the school, for in-
stance by not promptly submitting a student’s grade, is
not only imputable to the professor but is an act of the
school, being his employer (University of the East vs. Jader,
G.R. No. 132344, February 17, 2000).
85. The proprietor of a building or structure is Proprietor of
responsible for the damages resulting from its total or building or
partial collapse, if it should be due to the lack of neces- structure
sary repairs. Proprietors shall also be responsible for
damages caused: (1) By the explosion of machinery which
has not been taken care of with due diligence, and the
inflammation of explosive substances which have not
been kept in a safe and adequate place; (2) By excessive
smoke, which may be harmful to persons or property;
(3) By the falling of trees situated at or near highways or
lanes, if not caused by force majeure; (4) By emanations
from tubes, canals, sewers or deposits of infectious mat-
ter, constructed without precautions suitable to the place.
If damage referred to in the two preceding articles should
be the result of any defect in the construction mentioned
in Article 1723, the third person suffering damages may
proceed only against the engineer or architect or con-
tractor in accordance with said article, within the period
therein fixed. (Articles 2190-2192, NCC. See also De Roy,
et al. vs. Court of Appeals, et al., G.R. No. L-80718, January
29, 1988).
CHAPTER 4
DEFENSES IN AN ACTION FOR
QUASI-DELICT
Plaintiff’s 1. When the plaintiff’s own negligence was the

own negli- immediate and proximate cause of his injury, he cannot
gence recover damages (Art. 2179, NCC).
2. Thus, in a case where petitioner’s failure to
examine his bank statements appears as the proximate
cause of his own damage and the bank was not shown
to be remiss in its duty of sending monthly bank state-
ments to the depositor, the Supreme Court upheld the
dismissal of the case. It noted that any error or discrep-
ancy in the entries therein could be brought to the bank’s
attention at the earliest opportunity. But, the depositor
failed to examine these bank statements not because he
was prevented by some cause in not doing so, but be-
cause 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 de-
tect any misappropriation by his secretary had he only
reviewed the status of his accounts based on the bank
statements sent to him regularly. In view of Article 2179
of the New Civil Code, when the plaintiff’s own negli-
gence was the immediate and proximate cause of his
injury, no recovery could be had for damages (Ilusorio
vs. Court of Appeals, et al., G.R. No. 139130, November 27,
2002).
3. When the immediate cause of an accident
resulting in an injury is the plaintiff’s own act, which
contributed to the principal occurrence as one of its de-
termining factors, he can not recover damages for the
injury.
72
CHAPTER 4 73
DEFENSES IN AN ACTION FOR QUASI-DELICT
But alluding to the doctrine of implied invitations Theory of

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

out his express permission he is a trespasser to whom
the owner owes no duty or obligation whatever. The
owner’s failure to take reasonable precautions to pre-
vent the child from entering premises at a place where
he knows or ought to know that children are accustomed
to roam about or to which their childish instincts and
impulses are likely to attract them is at least equivalent
to an implied license to enter, and where the child does
not enter under such conditions the owner’s failure to
make reasonable precaution to guard the child against
the injury from unknown or unseen dangers, placed
upon such premises by the owner, is clearly a breach of
duty, a negligent omission, for which he may and should
be held responsible, if the child is actually injured, with-
out other fault on its part than that it had entered on the
premises of a stranger without his express invitation or
permission. To hold otherwise would be expose to all
the children in the community to unknown perils and
unnecessary danger at the whim of the owners or occu-
pants of land upon which they might naturally and rea-
sonably be expected to enter. This conclusion is founded
on reason, justice, and necessity, and neither the conten-
tion that a man has a right to do what he will with his
own property of that children should be kept under the
care of the parents or guardian, so as to prevent their
entering on the premises of others is of sufficient weight
to put it in doubt (Taylor vs. Manila Electric, supra).
Doctrine of 6. Also, one who maintains on his premises dan-
attractive gerous instrumentalities or appliances of a character
nuisance likely to attract children in play, and who fails to exer-
cise ordinary care to prevent children from playing there-
with or resorting thereto, is liable to a child of tender
years who is injured thereby, even if the child is techni-
cally a trespasser in the premises. The attractive nui-
sance doctrine, however, is generally not applicable to
bodies of water, artificial as well as natural, in the ab-
sence of some unusual condition or artificial feature other
than the mere water and its location (Hidalgo Enterprises,
Inc. vs. Balandan, et al., G.R. No. L-3422, June 13, 1952).
7. The doctrine of attractive nuisance has been
based on various theories, such as the theory of implied
CHAPTER 4 75
invitation, reasonable anticipation, or that the instrumen-

tality or condition constitutes a trap of pitfall (65 CJS
812-813).
8. An excavation is an attractive nuisance.
Where the children, driven by their playful and adven-
turous instincts and not knowing the risk they were fac-
ing, jumped into the hole while the other one jumped on
the stone, the school teacher who allowed this to hap-
pen is guilty of negligence (see Ylarde, et al. vs. Aquino, et
al., G.R. No. L-33722, July 29, 1988).
9. Also, under the principle of volenti non fit in- Assumption
juria neques dolus, one who voluntarily assumes the risk of risk
may not later on ask for damages (cf., Menchavez, et al.
vs. Teves, Jr., G.R. No. 153201, January 26, 2005).
10. The doctrine of volenti non fit injuria (“to which
a person assents is not esteemed in law as injury”) refers
to self-inflicted injury or to the consent to injury which
precludes the recovery of damages by one who has
knowingly and voluntarily exposed himself to danger,
even if he is not negligent in doing so (Nikko Hotel Ma-
nila Garden, et al. vs. Reyes, G.R. No. 154259, February 28,
2005).
11. Thus, considering the nature of the task of
emptying a septic tank especially one which has not been
cleaned for years, an ordinarily prudent person should
undoubtedly be aware of the attendant risks, more so
with one who is an old hand in this kind of service, who
is presumed to know the hazards of the job. His failure,
therefore, and that of his men to take precautionary mea-
sures for their safety was the proximate cause of the
accident. In Culion Ice, Fish and Elect. Co., v. Phil. Mo-
tors Corporation (55 Phil. 129, 133), it was held that when
a person holds himself out as being competent to do
things requiring professional skill, he will be held liable
for negligence if he fails to exhibit the care and skill of
one ordinarily skilled in the particular work which he
attempts to do (Fernando, et al. vs. Court of Appeals, G.R.
No. 92087, May 8, 1992).
12. Also, where the animal was in the custody
and under the control of the caretaker, who was paid for
his work as such, being injured by the animal under

those circumstances was one of the risks of the occupa-
tion which he had voluntarily assumed and for which
he must take the consequences. Obviously, it was the
caretaker’s business to try to prevent the animal from
causing injury or damage to anyone, including himself.
In a decision of the Spanish Supreme Court, cited by
Manresa in his Commentaries (Vol. 12, p. 578), the death
of an employee who was bitten by a feline which his
master had asked him to take to his establishment was
by said tribunal declared to be “a veritable accident of
labor” which should come under the labor laws rather
than under Article 1905 of the Civil Code (Afialda vs.
Hisole, et al., G.R. No. L-2075, November 29, 1949).
13. However, a person is excused from the force
of the rule, that when he voluntarily assents to a known
danger he must abide by the consequences, if an emer-
gency is found to exist or if the life or property of an-
other is in peril [65A C.S.C. Negligence 174(5), p. 301],
or when he seeks to rescue his endangered property
(Harper and James, “The Law of Torts.” Little, Brown and
Co., 1956, v. 2, p. 1167).
Thus, where the deceased’s property, a source of
livelihood, was faced with an impending loss and the
deceased, at the time the fatal incident occurred, was at
a place where she had a right to be as she was on her
way to protect her merchandise, it was held that the
heirs may not be barred from recovering damages as a
result of the death caused by electric company’s negli-
gence (Ibid., p. 1165, 1166) (Ilocos Norte Electric Company
1989).
14. Under common law, the application of the
doctrine of assumption of risk has been held to include
instances where plaintiff participated in a dangerous
sport, or joined a crowd of spectators knowing that they
were likely to become unruly, or submitted to beauty
treatment shops (65A CJS 301). A person who is sui juris
and participates in an athletic event, game or sport, ac-
cepts the dangers inherent in the activity as far as are
obvious or necessary (Ibid., at 302).
CHAPTER 4 77
Also, an employee does not assume the risk that

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

quences, without reference to the prior negligence of the
other party.” (Picart vs. Smith, 37 Phil., 809).
17. The law is that the person who has the last
fair chance to avoid the impending harm and fails to do
so is chargeable with the consequences. Last clear chance
is a doctrine in the law of torts which states that the
contributory negligence of the party injured will not de-
feat the claim for damages if it is shown that the defen-
dant might, by the exercise of reasonable care and pru-
dence, have avoided the consequences of the negligence
of the injured party. In such cases, the person who had
the last clear chance to avoid the mishap is considered
in law solely responsible for the consequences thereof
(cf., McKee vs. Intermediate Appellate Court, G.R. No. 68102,
July 16, 1992).
18. The doctrine of “last clear chance,” in essence,
is to the effect that where both parties are negligent, but
the negligent act of one is appreciably later in time than
that of the other, or when it is impossible to determine
whose fault or negligence should be attributed to the
incident, the one who had the last clear opportunity to
avoid the impending harm and failed to do so is charge-
able with the consequences thereof (see Picart vs. Smith,
37 Phil. 809).
Stated differently, the rule would also mean that
an antecedent negligence of a person does not preclude
the recovery of damages for the supervening negligence
of, or bar a defense against liability sought by, another if
the latter, who had the last fair chance, could have
avoided the impending harm by the exercise of due dili-
gence (LBC Air Cargo et al. vs. Court of Appeals, et al., G.R.
No. 101683, February 23, 1995 citing Pantranco North Ex-
press, Inc. vs. Baesa, 179 SCRA 384; Glan People’s Lumber
and Hardware vs. Intermediate Appellate Court, 173 SCRA
464).
19. The doctrine of last clear chance applies only
in a situation where the defendant, having the last fair
chance to avoid the impending harm and failed to do
so, becomes liable for all the consequences of the acci-
CHAPTER 4 79
dent notwithstanding the prior negligence of the plain-

tiff. In order that the doctrine of last clear chance may be
applied, it must be shown that the person who allegedly
had the last opportunity to avert the accident was aware
of the existence of the peril or with exercise of due care
should have been aware of it. Thus, it has no application
to a case where a person is to act instantaneously, and if
the injury cannot be avoided by using all means avail-
able after the peril is or should have been discovered
(Pantranco North Express, Inc. vs. Baesa, et al., G.R. No.
79050-51, November 14, 1989).
20. It also has no application in a case of culpa
contractual, where neither the contributory negligence of
the plaintiff nor his last clear chance to avoid the loss,
would exonerate the defendant from liability (Consoli-
dated Bank and Trust Corp. vs. Court of Appeals, et al., G.R.
No. 138569, September 11, 2003). The common law notion
of last clear chance permitted courts to grant recovery to
a plaintiff who has also been negligent provided that
the defendant had the last clear chance to avoid the ca-
sualty and failed to do so. Accordingly, it is difficult to
see what role, if any, the common law of last clear chance
doctrine has to play in a jurisdiction where the common
law concept of contributory negligence as an absolute
bar to recovery by the plaintiff, has itself been rejected,
as it has been in Article 2179 of the Civil Code (Tiu, et al.
vs. Arriesgado, et al., G.R. No. 138060, September 1, 2004).
21. Further, where the claim is founded under
Article 2190 of the Civil Code, the doctrine of “last clear
chance,” which has been applied to vehicular accidents,
was held to be inapplicable to the case (De Roy, et al. vs.
Court of Appeals, et al., supra).
22. Under the emergency rule, one who suddenly Emergency
finds himself in a place of danger, and is required to act Rule
without time to consider the best means that may be
adopted to avoid the impending danger, is not guilty of
negligence, if he fails to adopt what subsequently and
upon reflection may appear to have been a better method,
unless the emergency in which he finds himself is
brought about by his own negligence (Gan vs. Court of
Appeals, et al., G.R. No. L-44264, September 19, 1988).
Thus, any reasonable and ordinary prudent man

would have tried to avoid running over the two boys by
swerving the car away from where they were even if
this would mean entering the opposite lane. Avoiding
such immediate peril would be the natural course to
take particularly where the vehicle in the opposite lane
would be several meters away and could very well slow
down, move to the side of the road and give way to the
oncoming car. (McKee vs. Intermediate Appellate Court,
supra).
23. Courts have traditionally been compelled to
recognize that an actor who is confronted with an emer-
gency is not to be held up to the standard of conduct
normally applied to an individual who is in no such
situation. The law takes stock of impulses of humanity
when placed in threatening or dangerous situations and
does not require the same standard of thoughtful and
reflective care from persons confronted by unusual and
oftentimes threatening conditions. Under the “emergency
rule” adopted by our Supreme Court in Gan vs. Court
of Appeals, 165 SCRA 378 (1988) cf. Siegl vs. Watson,
195 NW 867, an individual who suddenly finds himself
in a situation of danger and is required to act without
much time to consider the best means that may be
adopted to avoid the impending danger, is not guilty of
negligence if he fails to undertake what subsequently
and upon reflection may appear to be a better solution,
unless the emergency was brought by his own negli-
gence. While the emergency rule applies to those cases
in which reflective thought, or the opportunity to ad-
equately weigh a threatening situation is absent, the con-
duct which is required of an individual in such cases is
dictated not exclusively by the suddenness of the event
which absolutely negates thoughtful care, but by the
over-all nature of the circumstances. A woman driving a
vehicle suddenly crippled by a flat tire on a rainy night
will not be faulted for stopping at a point which is both
convenient for her to do so and which is not a hazard to
other motorists (Valenzuela vs. Court of Appeals, G.R. No.
115024 & 117944, February 7, 1996).
24. As above-stated, the emergency rule is not
applicable where the danger one finds himself was
CHAPTER 4 81
caused by his own negligence (Delsan Transport Lines,

Inc. vs. C & A Construction Inc., G.R. No. 156034, October
1, 2003).
25. An action for quasi-delict must be instituted Prescription
within four years (Art. 1146, NCC).
26. The prescriptive period begins from the day
the quasi-delict is committed. In Paulan vs. Sarabia, the
Supreme Court ruled that in an action for damages aris-
ing from the collision of two (2) trucks, the action being
based on a quasi-delict, the four (4) year prescriptive pe-
riod must be counted from the day of the collision
(Kramer vs. Court of Appeals, et al., G.R. No. 83524, October
13, 1989).
27. In an action for damages arising from the col-
lision of two (2) vessels the four (4) year prescriptive
period must be counted from the day of the collision.
The aggrieved party need not wait for a determination
by an administrative body like a Board of Marine In-
quiry, that the collision was caused by the fault or negli-
gence of the other party before he can file an action for
damages (Kramer vs. Court of Appeals, supra).
28. For persons held vicariously liable, the proper Diligence of
defense is the exercise of diligence of a good father of good father
the family (last par., Art. 2180, NCC and Art. 219, Family of family
Code of the Philippines). In the case of employer held vi-
cariously liable, the proper defense is the exercise of all
the diligence of a good father of a family in the selection
and supervision of his employees (Franco et al. vs. Inter-
mediate Appellate Court, et al., G.R. No. 71137, October 5,
1989). But note that the defense of “exercise of due care
in their selection and supervision . . . is not applicable to
obligations arising ex contractu, but only to extra-con-
tractual obligations — or to use the technical form of
expression, [the defense] relates only to culpa aquiliana
and not to culpa contractual” (Cangco vs. Manila Railroad
Co., supra).
29. The diligence of a good father of a family re-
quires only that diligence which an ordinary prudent
man would exercise with regard to his own property
(Wildvalley Shipping Company vs. Court of Appeals, et al.,
G.R. No. 119602, October 6, 2000). Whether or not the

diligence of a good father of a family has been observed
by petitioner is a matter of proof (Metro Manila Transit
Corporation vs. Court of Appeals, et al., G.R. No. 104408,
June 21, 1993). The employer must adduce sufficient proof
that it exercised such degree of care (Secosa vs. Francisco,
G.R. No. 160039, June 29, 2004).
30. A master who exercises all possible care in
the selection of his servant, taking into consideration
the qualifications they should possess for the discharge
of the duties which it is his purpose to confide to them,
and directs them with equal diligence, thereby performs
his duty to third persons to whom he is bound by no
contractual ties, and he incurs no liability whatever if,
by reason of the negligence of his servants, even within
the scope of their employment, such third persons suf-
fer damage (Cangco vs. Manila Railroad Co., supra).
Partial 31. The doctrine of contributory negligence may
defense: also be invoked, albeit only as a partial defense. “When
Doctrine of the plaintiff’s own negligence was the immediate and
contributory proximate cause of his injury, he cannot recover dam-
negligence ages. But if his negligence was only contributory, the
immediate and proximate cause of the injury being the
defendant’s lack of due care, the plaintiff may recover
damages, but the courts shall mitigate the damages to
be awarded.” (Article 2179, NCC).
32. In American jurisprudence, any negligence,
however slight, on the part of the person injured which
is one of the causes proximately contributing to his in-
jury, bars his recovery. But in some civil law countries
like France, the contributory negligence did not exoner-
ate the defendants whose fault had been the immediate
cause of the accident, but entitled him to a reduction of
damages.
33. In the Philippines, the negligence of the in-
jured person contributing to his injury but not being one
of the determining causes of the principal accident, does
not operate as a bar to recovery, but only in reduction of
his damages. Each party is chargeable with damages in
proportion to his fault (Rakes vs. Atlantic, G.R. No.
CHAPTER 4 83
L-1719, January 23, 1907). The underlying precept of the

above article on contributory negligence is that a plain-
tiff who is partly responsible for his own injury should
not be entitled to recover damages in full but must bear
the consequences of his own negligence. The defendant
must thus be held liable only for the damages actually
caused by his negligence (Syki vs. Begasa, G.R. No. 149149,
October 23, 2003).
34. Contributory negligence has been defined as Contributory
“the act or omission amounting to want of ordinary care negligence
on the part of the person injured which, concurring with distinguished
the defendant’s negligence, is the proximate cause of from the
doctrine of
the injury.” It has been held that “to hold a person as
last clear
having contributed to his injuries, it must be shown that chance
he performed an act that brought about his injuries in
disregard of warnings or signs of an impending danger
to health and body.” (Ma-ao Sugar Central Co. vs. Court of
Appeals, G.R. No. 83491, August 27, 1990).
But where both parties are guilty of negligence,
but the negligent act of one succeeds that of the other by
an appreciable interval of time, the one who has the last
reasonable opportunity to avoid the impending harm
and fails to do so is chargeable with the consequences,
without reference to the prior negligence of the other
party [under the doctrine of last clear chance] (Picart vs.
Smith, G.R. No. L-12219, March 15, 1918). This is the dif-
ference between the concepts of contributory negligence
and doctrine of last clear chance.
35. There is a conclusive presumption that favors
children below nine (9) years old in that they are inca-
pable of contributory negligence. Citing Sangco, the Su-
preme Court ruled that “[i]n our jurisdiction, a person
under nine years of age is conclusively presumed to have
acted without discernment, and is, on that account, ex-
empt from criminal liability. The same presumption and
a like exemption from criminal liability obtains in a case
of a person over nine and under fifteen years of age,
unless it is shown that he has acted with discernment.
Since negligence may be a felony and a quasi-delict and
required discernment as a condition of liability, either
criminal or civil, a child under nine years of age is, by
analogy, conclusively presumed to be incapable of neg-

ligence; and that the presumption of lack of discern-
ment or incapacity for negligence in the case of a child
over nine but under fifteen years of age is a rebuttable
one, under our law. The rule, therefore, is that a child
under nine years of age must be conclusively presumed
incapable of contributory negligence as a matter of law.”
(Jarco Marketing Corp. vs. Court of Appeals, et al., G.R. No.
129792, December 21, 1999).
36. With the passage of Republic Act 9344, other-
wise known as the Juvenile Justice and Welfare Act of
2006, the minimum age of criminal responsibility has
been raised to fifteen. As provided in Section 6 thereof,
“a child fifteen (15) years of age or under at the time of
the commission of the offense shall be exempt from crimi-
nal liability. However, the child shall be subjected to an
intervention program xxx. A child above fifteen (15) years
but below eighteen (18) years of age shall likewise be
exempt from criminal responsibility and be subjected to
an intervention program, unless he/she has acted with
discernment, in which case, such child shall be subjected
to an appropriate proceedings.”
But the law itself provides that “the exemption from
criminal liability herein established does not include
exemption from civil liability, which shall be enforced in
accordance with existing laws.” Thus, it would seem
that the provisions on quasi-delict are not affected by the
passage of RA 9344.
37. In quasi-delicts, the contributory negligence of
the plaintiff shall reduce the damages that he may re-
cover (PCIB vs. Court of Appeals, et al., G.R. No. 121413,
January 29, 2001). The determination of the mitigation of
the defendant’s liability varies depending on the circum-
stances of each case. The Court had sustained a mitiga-
tion of 50% in Rakes v. AG & P; 20% in Phoenix Con-
struction, Inc. v. Intermediate Appellate Court; and LBC
Air Cargo, Inc. v. Court of Appeals; and 40% in Bank of
the Philippine Islands v. Court of Appeals and Philip-
pine Bank of Commerce v. Court of Appeals. Thus, in a
case where one has imbibed one or two bottles of beer
and was not wearing a protective helmet, the Supreme
CHAPTER 4 85
Court ruled that the heirs of the deceased may recover

damages only up to 50% of the award and 50% of the
damage shall be borne by them (Lambert vs. Castillon, et
al., G.R. No. 160709, February 23, 2005).
38. In criminal action for reckless imprudence,
the alleged contributory negligence of the victim, if any,
does not exonerate the accused. The defense of contribu-
tory negligence does not apply in criminal cases com-
mitted through reckless imprudence, since one cannot
allege the negligence of another to evade the effects of
his own negligence (Genobiagon vs. Court of Appeals, et
al., G.R. No. 40452, October 12, 1989 citing People vs. Orbeta,
CA-G.R. No. 321, March 29, 1947).
CHAPTER 5
ENFORCEMENT OF LIABILITY
Available 1. In cases of negligence, the injured party or

remedies his heirs has the choice between an action to enforce the
civil liability arising from crime under Article 100 of the
Revised Penal Code and an action for quasi-delict under
Article 2176-2194 of the Civil Code. He may file either
action, or both, albeit with the caveat against double
recovery for the same act or omission.
2. An act or omission causing damage to an-
other may give rise to two separate civil liabilities on the
part of the offender, i.e., (1) civil liability ex delicto, under
Article 100 of the Revised Penal Code; and (2) indepen-
dent 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 crimi-
nal action under Article 33 of the Civil Code. Either of
these liabilities may be enforced against the offender sub-
ject to the caveat under Article 2177 of the Civil Code
that the plaintiff cannot recover damages twice for the
same act or omission of the defendant and the similar
proscription against double recovery under the Rules
above-quoted (Santos et al. vs. Pizardo, et al., G.R. No.
151452, July 29, 2005).
3. Section 2, Rule 2, of the 1997 Rules of Civil
Procedure defines cause of action as the “act or omis-
sion by which a party violates the right of another.” Such
act or omission gives rise to an obligation which may
come from law, contracts, quasi contracts, delicts or quasi-
86
CHAPTER 5 87
delicts. Corollarily, an act or omission causing damage to

another may give rise to two separate civil liabilities on
the part of the offender, i.e., 1) civil liability ex delicto;
and 2) independent civil liabilities, such as those (a) not
arising from an act or omission complained of as felony
(e.g., culpa contractual or obligations arising from law;
the intentional torts; and culpa aquiliana; or (b) where the
injured party is granted a right to file an action indepen-
dent and distinct from the criminal action. Either of these
two possible liabilities may be enforced against the of-
fender (L.G. Foods Corporation vs. Hon. Philadelfa B.
Pagapong-Agraviador, supra).
4. Because quasi-delict has substantivity all its
own, the relevant question arises in cases where the ag-
grieved party files a criminal case under Title Fourteen
of the Revised Penal Code1 and still wishes to institute a
civil action for quasi-delict. Must the aggrieved party still
reserve his right to institute the independent civil action
of quasi-delict in the criminal case that he has instituted
ahead?
5. The subject was first provided for by G.O. Rules govern-
No. 58, the first Rules of Criminal Procedure under the ing reserva-
American rule. Sec. 107 of these Orders provided: The tion
privileges now secured by law to the person claiming to
be injured by the commission of an offense to take part
in the prosecution of the offense and to recover dam-
ages for the injury sustained by reason of the same shall
not be held to be abridged by the provisions of this or-
der; but such person may appear and shall be heard
either individually or by attorney at all stages of the
case, and the court upon conviction of the accused may
enter judgment against him for the damages occasioned
his wrongful act. It shall, however, be the duty of the
promotor fiscal to direct the prosecution, subject to the
right of the person injured to appeal from any decision
of the court denying him a legal right. This was super-
seded by the 1940 Rules of Court, Rule 106 of which
provided: “SEC. 15. Intervention of the offended party
in criminal action. — Unless the offended party has
1
Quasi-Offenses (Criminal Negligence).
waived the civil action or expressly reserved the right to

institute it after the termination of the criminal case, and
subject to the provisions of Section 4 hereof, he may
intervene, personally or by attorney, in the prosecution
of the offense. This Rule was amended thrice, in 1964, in
1985 and lastly in 1988. (Maniago vs. Court of Appeals,
G.R. No. 104392, February 20, 1996).
6. Before the revision of the Rules on Criminal
Procedure in 1985, the rule has been that which is stated
in Section 1 and 2 of Rule 111 of the Rules of Court that
once a criminal action is instituted, the civil action for
the recovery of civil liability arising from the offense is
impliedly instituted with the criminal action. However,
for damages arising under Articles 31, 32, 33, 34 and
2177 of the Civil Code of the Philippines, an indepen-
dent civil action entirely separate and distinct from the
criminal action, may be brought by the injured party
during the pendency of the criminal case, provided the
right is reserved in the criminal action (Dumuk vs.
Daquigan, et al., G.R. No. 47926, August 13, 1990).
7. As revised on January 1, 1985, however, Sec-
tion 2, Rule III, eliminated not only the requirement that
the right to institute such independent civil actions be
reserved by the complainant, but more significantly,
eliminated Articles 31 and 2177 of the Civil Code from
its purview. This is so because the civil actions contem-
plated in Articles 31 and 2177 are not civil actions ex
delicto. Moreover, said articles by themselves, authorize
the institution of a civil action for damages based on
quasi-delict which may proceed independently of the
criminal proceeding for criminal negligence and regard-
less of the result of the latter (Bordas vs. Canadalla, et al.,
G.R. No. L-30036, April 15, 1988 citing Articles 31 and
2177, Civil Code; Corpus vs. Paje, 28 SCRA 1062).
8. Then in Maniago vs. Court of Appeals, et al.,
supra, the Supreme Court once more required reserva-
tion of the right to recover the civil liability, otherwise
the action will be deemed to have been instituted with
the criminal action. It held therein “that the requirement
that before a separate civil action may be brought it must
be reserved does not impair, diminish or defeat substan-
tive rights, but only regulates their exercise in the gen-
CHAPTER 5 89
eral interest of orderly procedure. The requirement is

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

tuted and thereafter have a continuous determination
apart from or simultaneous with the criminal action.
10. Then came the changes in the Revised Rules
on Criminal Procedure pertaining to independent civil
actions which became effective on December 1, 2000.
Rule 111, Section 3 now reads: “In the cases pro-
vided in Articles 32, 33, 34 and 2176 of the Civil Code of
the Philippines, the independent civil action may be
brought by the offended party. It shall proceed indepen-
dently of the criminal action and shall require only a
preponderance of evidence. In no case, however, may
the offended party recover damages twice for the same
act or omission charged in the criminal action.” Under
the present rule, only the civil liability arising from the
offense charged is deemed instituted with the criminal
action unless the offended party waives the civil action,
reserves his right to institute it separately, or institutes
the civil action prior to the criminal action.
11. Expounding on the new provision, the Su-
preme Court held that there is no more need for a reser-
vation of the right to file the independent civil actions
under Articles 32, 33, 34 and 2176 of the Civil Code of
the Philippines. The reservation and waiver referred to
refers only to the civil action for the recovery of the civil
liability arising from the offense charged. This does not
include recovery of civil liability under Articles 32, 33,
34 and 2176 of the Civil Code of the Philippines arising
from the same act or omission which may be prosecuted
separately even without a reservation. (DMPI Employ-
ees Credit Cooperative vs. Hon. Velez, G.R. No. 129282,
November 29, 2001).
12. But an independent civil action for the recov-
ery of civil liability, authorized under Articles 32, 33, 34
or 2176 of the Civil Code, filed before the institution of
the criminal case, may be consolidated with the latter,
subject to the condition that no final judgment has been
rendered in the criminal case. If this is permitted, there
is neither rhyme nor reason why, given the existence of
the condition, an independent civil action under any of
the said Articles, but filed after the institution of the
CHAPTER 5 91
criminal case, may not be consolidated with the latter.

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

the non-observance thereof actually becomes the basis
of their vicarious liability under Article 2180 (Metro Ma-
nila Transit Corporation vs. Court of Appeals, et al., G.R. No.
104408, June 21, 1993).
Nature of 15. In these cases, the liability of the tortfeasors
liability is solidary. “While the provisions of law do not expressly
provide for solidary liability, the same can be inferred
from the wordings of the first paragraph of Article 2180
which states that the obligation imposed by Article 2176
is demandable not only for one’s own acts or omissions,
but also for those of persons for whom one is respon-
sible. Moreover, Article 2180 should be read with Article
2194 of the same Code, which categorically states that
the responsibility of two or more persons who are liable
for quasi-delict is solidary. In other words, the liability of
joint tortfeasors is solidary.” (Hernandez et al. vs. Dolor, et
al., G.R. No. 160286, July 30, 2004).
16. The universal doctrine is that each joint tort
feasor is not only individually liable for the tort in which
he participates, but is also jointly liable with his tort
feasors. It may be stated as a general rule that joint tort
feasors are all the persons who command, instigate, pro-
mote, encourage, advise, countenance, cooperate in, aid
or abet the commission of a tort, or who approve of it
after it is done, if done for their benefit. They are each
liable as principals, to the same extent and in the same
manner as if they had performed the wrongful act them-
selves. Joint tort feasors are jointly and severally liable
for the tort which they commit. The persons injured may
sue all of them or any number less than all. Each is liable
for the whole damages caused by all, and all together
are jointly liable for the whole damage. It is no defense
for one sued alone, that the others who participated in
the wrongful act are not joined with him as defendants;
nor is it any excuse for him that his participation in the
tort was insignificant as compared to that of the others.
Joint tort feasors are not liable pro rata. The damages
can not be apportioned among them, except among
themselves. They cannot insist upon an apportionment,
for the purpose of each paying an aliquot part. They are
CHAPTER 5 93
jointly and severally liable for the whole amount. A pay-

ment in full for the damage done, by one of the joint tort
feasors, of course satisfies any claim which might exist
against the others. There can be but one satisfaction. The
release of one of the joint tort feasors by agreement gen-
erally operates to discharge all. Of course the court dur-
ing trial may find that some of the alleged tort feasors
are liable and that others are not liable. The courts may
release some for lack of evidence while condemning oth-
ers of the alleged tort feasors. And this is true even
though they are charged jointly and severally (cf., Con-
struction Development Corporation of the Philippines vs.
Estrella, et al., G.R. No. 147791, September 8, 2006).
17. The insurer, however, is not to be held
solidarily liable with the insured. In Malayan Insurance
Co., Inc. vs. Court of Appeals, G.R. No. L-36413, September
26, 1988, a case was filed against the insurance company
and against the insured Pantranco, the latter being owner
of the bus negligently driven by its employee. The Su-
preme Court reversed the finding of the trial court hold-
ing the insurance company solidarily liable with
Pantranco. It held: “while it is true that where the insur-
ance contract provides for indemnity against liability to
third persons, such third persons can directly sue the
insurer, however, the direct liability of the insurer under
indemnity contracts against third party liability does not
mean that the insurer can be held solidarily liable with
the insured and/or the other parties found at fault. The
liability of the insurer is based on contract; that of the
insured is based on tort. In the context of a solidary
obligation, insurer may be compelled to pay the entire
obligation of P29,013.00, notwithstanding the qualifica-
tion made by the trial court. But, how can the insurer be
obliged to pay the entire obligation when the amount
stated in its insurance policy for indemnity against third
party liability is only P20,000.00?’’
18. Actions for damages caused by the tortious
conduct of the defendant survive the death of the latter
(Melgar, et al. vs. Buenviaje, et al., G.R. No. 55750, Novem-
ber 8, 1989).
CHAPTER 6
STRICT LIABILITY TORTS
Definition and 1. Until the 19th century, a person whose ac-

rationale tions cause harm to another was in most situations held
responsible for that harm simply because he acted. In
other words, he was liable even without fault. However,
over the years, it was generally perceived that the impo-
sition of absolute liability for one’s acts without regard
to fault is out of accord with the general principles of
law. Thus, the concept of liability without fault, or strict
liability torts (also referred to as strict liability in torts) is
now generally limited to acts which, though lawful, are
so fraught with possibility of harm to others that the
law treats them as allowable only on the terms of insur-
ing the public against injury (74 AmJur 2d, at 631-632).
2. The rule of strict liability is said to be appli-
cable 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 rea-
sonably incident to desirable industrial activity. The ba-
sis of liability in such cases is the intentional behavior in
exposing the community to the abnormal risk (Ibid.).
3. Under the doctrine of strict liability in tort,
the liability is “strict” in the sense that it is unnecessary
to prove the defendant’s negligence (63 AmJur 2d, at p.
723). Known also as liability without fault, this branch
of torts seeks to regulate those activities that are useful
and necessary but that create abnormally dangerous risks
to society.
Possessor of 4. For instance, “[t]he possessor of an animal or
animals whoever may make use of the same is responsible for the
94
CHAPTER 6 95
damage which it may cause, although it may escape or

be lost. This responsibility shall cease only in case the
damage should come from force majeure or from the fault
of the person who has suffered damage.” (Article 2183,
NCC). This section, under certain conditions, renders ei-
ther the owner of the animal or the one using it liable for
damages (Johnson vs. David, G.R. No. 2789, February 27,
1906).
5. Article 2183 of the Civil Code holds the pos-
sessor liable even if the animal should “escape or be
lost” and so be removed from his control. And it does
not matter either that the dog was tame and was merely
provoked by the child into biting her. The law does not
speak only of vicious animals but covers even tame ones
as long as they cause injury. According to Manresa, the
obligation imposed by Article 2183 of the Civil Code is
not based on the negligence or on the presumed lack of
vigilance of the possessor or user of the animal causing
the damage. It is based on natural equity and on the
principle of social interest that he who possesses ani-
mals for his utility, pleasure or service must answer for
the damage which such animal may cause (Vestil vs. In-
termediate Appellate Court, et al., G.R. No. 74431, November
6, 1989).
6. Manufacturers and processors of foodstuffs, Manufactur-
drinks, toilet articles and similar goods shall be liable ers and
for death or injuries caused by any noxious or harm- processors of
ful substances used, although no contractual relation foodstuffs,
etc.
exists between them and the consumers (Article 2187,
NCC).
7. It has been said that the basis of products
liability is the responsibility put upon one who sends
goods outs into the channels of trade for use by others.
Products liability would thus appear to cover any liabil-
ity of a manufacturer or other seller of a product where
personal injury or damage to some other property is
caused by a defect in the product, albeit product liabil-
ity is generally not considered to cover instances where
the product does not measure up to buyer’s expecta-
tions, or on claims based merely on “bad bargains” (63
AmJur 2d at p. 34).
8. A manufacturer is strictly liable for torts when

an article he places on the market, knowing that it is to
be used without inspection for defect, proves to have a
defect that causes injury to human being. This is also
sometimes referred to as the “enterprise liability” (Ibid.,
at p. 722).
9. Although the doctrine has met with rapid and
widespread acceptance, the doctrine relates only to de-
fective and unreasonably dangerous products and does
not make a manufacturer or seller an insurer that no
injury will result from the use of his products nor does
the doctrine mean that such a manufacturer or seller is
liable for any harm to anybody under the circumstances
(Ibid., at p. 734).
10. Under Republic Act 7394 or the Consumer
Act of the Philippines, “any Filipino or foreign manu-
facturer, producer, and any importer, shall be liable for
redress, independently of fault, for damages caused to
consumers by defects resulting from design, manufac-
ture, construction, assembly and erection, formulas and
handling and making up, presentation or packing of their
products, as well as for the insufficient or inadequate
information on the use and hazards thereof’’ (Art. 97).
11. A product is defective when it does not offer
the safety rightfully expected of it, taking relevant cir-
cumstances into consideration, including but not lim-
ited to: a) presentation of product; b) use and hazards
reasonably expected of it; c) the time it was put into
circulation. A product is not considered defective be-
cause another better quality product has been placed in
the market (Ibid.).
12. The tradesman/seller is likewise liable, pur-
suant to the preceding article when: a) it is not possible
to identify the manufacturer, builder, producer or im-
porter; b) the product is supplied, without clear identifi-
cation of the manufacturer, producer, builder or importer;
c) he does not adequately preserve perishable goods.
The party making payment to the damaged party may
exercise the right to recover a part of the whole of the
payment made against the other responsible parties, in
CHAPTER 6 97
accordance with their part or responsibility in the cause

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

ticle, and replacement of the product is not possible, it
may be replaced by another of a different kind, mark or
model: Provided, That any difference in price may
result thereof shall be supplemented or reimbursed by
the party which caused the damage, without prejudice
to the provisions of the second, third and fourth para-
graphs of this Article (Art. 100).
15. Suppliers are jointly liable for imperfections
in the quantity of the product when, in due regard for
variations inherent thereto, their net content is less than
that indicated on the container, packaging, labeling or
advertisement, the consumer having powers to demand,
alternatively, at his own option: a) the proportionate
price; b) the supplementing of weight or measure differ-
ential; c) the replacement of the product by another of
the same kind, mark or model, without said imperfec-
tions; d) the immediate reimbursement of the amount
paid, with monetary updating without prejudice to losses
and damages, if any (Art. 101).
16. The service supplier is liable for any quality
imperfections that render the services improper for con-
sumption or decrease their value, and for those result-
ing from inconsistency with the information contained
in the offer or advertisement, the consumer being en-
titled to demand alternatively at his option: a) the per-
formance 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 proportion-
ate price reduction. Reperformance of services may be
entrusted to duly qualified third parties, at the supplier’s
risk and cost (Art. 102).
17. The druggist is responsible as an absolute
guarantor of what he sells. In a decision which stands
alone, the Supreme Court of Kentucky said: “As appli-
cable to the owners of drug stores, or persons engaged
in vending drugs and medicines by retail, the legal
maxim should be reversed. Instead of caveat emptor, it
should be caveat venditor. That is to say, let him be cer-
CHAPTER 6 99
tain that he does not sell to a purchaser or send to a

patient one drug for another, as arsenic for calomel,
cartharides for or mixed with snakeroot and Peruvian
bark, or even on innocent drug, calculated to produce a
certain effect, in place of another sent for and designed
to produce a different effect. If he does these things, he
cannot escape civil responsibility, upon the alleged pre-
texts 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 ex-
cuses will not avail him.”(Fleet vs. Hollenkemp [1852],
56 Am. Dec., 563.) Under the other conception, in which
proof of negligence is considered as material, where a
customer calls upon a druggist for a harmless remedy,
delivery of a poisonous drug by mistake by the druggist
is prima facie negligence, placing the burden on him to
show that the mistake was under the circumstances con-
sistent with the exercise of due care. (See Knoefel vs.
Atkins, supra) The druggist cannot, for example in fill-
ing a prescription calling for potassium chlorate give
instead to the customer barium chlorate, a poison, place
this poison in a package labeled “potassium chlorate,”
and expect to escape responsibility on a plea of mistake.
His mistake, under the most favorable aspect for him-
self, was negligence (United States vs. Pineda, G.R. No.
L-12858, January 22, 1918).
18. The rule thus of caveat emptor cannot apply to
the purchase and sale of drugs.
The vendor and the vendee do not stand at arms
length as in ordinary transactions. An imperative duty
is on the druggist to take precautions to prevent death
or serious injury to anyone who relies on his absolute
honesty and peculiar learning. The nature of drugs is
such that examination would not avail the purchaser
anything. It would be idle mockery for the customer to
make an examination of a compound of which he can
know nothing. Consequently, it must be that the drug-
gist warrants that he will deliver the drug called for. In
civil cases, the druggist is made liable for any injury
approximately resulting from his negligence. If B negli-

gently sells poison under the guise of a beneficial drug
to A, he is liable for the injury done to A. In a case,
which has repeatedly been followed by the United States
Supreme Court, it was said, “Pharmacists or apothecar-
ies who compound or sell medicines, if they carelessly
label a poison as a harmless medicine, and send it so
labeled into the market, are liable to all persons who,
without fault on their part, are injured by using it as
such medicine, in consequence of the false label; the rule
being that the liability in such a case arises not out of
any contract or direct privity between the wrong-doer
and the person injured, but out of the duty which the
law imposes on him to avoid acts in their nature dan-
gerous to the lives of others.” (Nat. Savings Bank vs.
Ward [1879], 100 U.S., 195, following Thomas vs. Win-
chester [1852], 2 Seld. [N.Y.] 397.) In view of the tremen-
dous and imminent danger to the public from the care-
less sale of poisons and medicines, we do not deem it
too rigid a rule to hold that the law penalizes any drug-
gist who shall sell one drug for another whether it be
through negligence or mistake (Ibid.).
Head of the 19. The head of a family that lives in a building
family or a part thereof, is responsible for damages caused by
things thrown or falling from the same (Article 2193,
NCC).
20. In US vs. Topino, 35 Phil. 901 (1916), the hus-
band was regarded as the head of the family. Even in the
fairly recent case of People vs. Llamo, G.R. No. 132138,
January 28, 2000, it was said that “[i]n this culture, the
father is called “haligi ng tahanan,” the pillar of strength
upon whom his children look to for moral guidance and
material as well as emotional support. The father is the
“padre de familia,” the head of the family who is morally
and socially obligated to protect his family and to en-
sure their well-being.”
21. But under the Family Code, the management
of the household is now the right and the duty of both
spouses (Art. 71).
CHAPTER 6 101
22. In the case of a family consisting of unmar-

ried brothers or sisters, it seems that the head of the
family is one on whom the family depends for lead sup-
port.1
1
The term “head of the family” has been defined by law for tax
purposes to mean “an unmarried or legally separated man or woman
with one or both parents, or with one or more brothers or sisters, or
with one or more legitimate, recognized natural or legally adopted
children living with and dependent upon him for their chief support,
where such brothers or sisters or children are not more than twenty-
one (21) years of age, unmarried and not gainfully employed or where
such children, brothers or sisters, regardless of age are incapable of
self-support because of mental or physical defect.” (Section 35, RA
8424)
CHAPTER 7
SPECIAL TORTS
Definition 1. The cases referred to in Art. 309 (par. 9, Art.

2219) and in Arts. 21, 26, 27, 28, 29, 30, 32, 34 and 35 on
the chapter on human relations (par. 10, Art. 2219) of
our Civil Code are otherwise referred to as special torts
(Malonzo vs. Galang, et al., G.R. No. L-13851, July 27, 1960;
Quezon City Government et al. vs. Dacara, G.R. No. 150304,
June 15, 2005).
Abuse of 2. In Article 19 of the Code, it is provided that
Right every person must, in the exercise of his rights and in
Principle the performance of his duties, act with justice, give ev-
eryone his due and observe honesty and good faith. The
principle of abuse of rights stated in the above article,
departs from the classical theory that “he who uses a
right injures no one.” The modern tendency is to depart
from the classical and traditional theory, and to grant
indemnity for damages in cases where there is an abuse
of rights, even when the act is not illicit.
3. Article 19 was intended to expand the con-
cept of torts by granting adequate legal remedy for the
untold number of moral wrongs which is impossible for
human foresight to provide specifically in statutory law.
If mere fault or negligence in one’s acts can make him
liable for damages for injury caused thereby, with more
reason should abuse or bad faith make him liable. The
absence of good faith is essential to abuse of right. Good
faith is an honest intention to abstain from taking any
unconscientious advantage of another, even through the
forms or technicalities of the law, together with an ab-
sence of all information or belief of fact which would
render the transaction unconscientious. In business rela-
tions, it means good faith as understood by men of
102
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affairs. While Article 19 may have been intended as a

mere declaration of principle, the “cardinal law on hu-
man conduct” expressed in said article has given rise to
certain rules, e.g. that where a person exercises his rights
but does so arbitrarily or unjustly or performs his duties
in a manner that is not in keeping with honesty and
good faith, he opens himself to liability (Sea Commercial
Company vs. Court of Appeals, et al., G.R. No. 122823, No-
vember 25, 1999).
4. On the other hand, Article 21 is designed to Art. 21
expand the concept of torts or quasi-delict in this juris-
diction by granting adequate legal remedy for the un-
told number of moral wrongs which is impossible for
human foresight to specifically enumerate and punish
in the statute books. As the Code Commission itself stated
in its Report: “‘But the Code Commission has gone far-
ther than the sphere of wrongs defined or determined
by positive law. Fully sensible that there are countless
gaps in the statutes, which leave so many victims of
moral wrongs helpless, even though they have actually
suffered material and moral injury, the Commission has
deemed it necessary, in the interest of justice, to incorpo-
rate in the proposed Civil Code the following rule: ‘AR-
TICLE 23. Any person who wilfully causes loss or injury
to another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter for
the damage.’ ‘An example will illustrate the purview of
the foregoing norm: ‘A’ seduces the nineteen-year old
daughter of ‘X.’ A promise of marriage either has not
been made, or can not be proved. The girl becomes preg-
nant. Under the present laws, there is no crime, as the
girl is above eighteen years of age. Neither can any civil
action for breach of promise of marriage be filed. There-
fore, though the grievous moral wrong has been com-
mitted, and though the girl and her family have suf-
fered incalculable moral damage, she and her parents
cannot bring any action for damages. But under the pro-
posed article, she and her parents would have such a
right of action. Thus at one stroke, the legislator, if the
foregoing rule is approved, would vouchsafe adequate
legal remedy for that untold number of moral wrongs
which it is impossible for human foresight to provide
for specifically in the statutes.” (Report of the Code Com-

mission, 39-40. This passage is quoted, except for the
last paragraph, in Tanjanco vs. Court of Appeals, 18
SCRA 994, 996-997 [1966]; the Article 23 referred to is
now Article 21.).
5. Hence, it is even postulated that together with
Articles 19 and 20 of the Civil Code, Article 21 has greatly
broadened the scope of the law on civil wrongs; it has
become much more supple and adaptable than the
Anglo-American law on torts (Baksh vs. Court of Appeals,
6. Article 19 was intended to expand the con-
cept of torts by granting adequate legal remedy for the
untold number of moral wrongs which is impossible for
human foresight to provide specifically in statutory law
[PNB v. CA, 83 SCRA 237 (1978) cited in Sea Commercial
Company v. CA, G.R. No. 122823, November 25, 1999]. In
civilized society, men must be able to assume that others
will do them no intended injury – that others will com-
mit no internal aggressions upon them; that their fel-
lowmen, when they act affirmatively will do so with
due care which the ordinary understanding and moral
sense of the community exacts and that those with whom
they deal in the general course of society will act in good
faith. The ultimate thing in the theory of liability is justi-
fiable reliance under conditions of civilized society. (Dean
Roscoe Pound, Introduction to the Philosophy of Law
cited in University of the East vs. Jader, supra).
7. The elements of an abuse of right under Ar-
ticle 19 are the following: (1) There is a legal right or
duty; (2) which is exercised in bad faith; (3) for the sole
intent of prejudicing or injuring another. Article 20 speaks
of the general sanction for all other provisions of law
which do not especially provide for their own sanction.
Thus, anyone who, whether willfully or negligently, in
the exercise of his legal right or duty, causes damage to
another, shall indemnify his victim for injuries suffered
thereby. Article 21 deals with acts contra bonus mores,
and has the following elements: 1) There is an act which
is legal; 2) but which is contrary to morals, good cus-
tom, public order, or public policy; 3) and it is done with
CHAPTER 7 105
SPECIAL TORTS
intent to injure. Thus, under any of these three (3) provi-

sions of law, an act which causes injury to another may
be made the basis for an award of damages (Albenson
Enterprises Corp. et al. vs. Court of Appeals, et al., G.R. No.
88694, January 11, 1993).
8. The test of Abuse of Right has been explained
in I Tolentino, pp. 61-62 in this wise “[m]odern jurispru-
dence does not permit acts which, although not unlaw-
ful, are anti-social. There is undoubtedly an abuse of
right when it is exercised for the only purpose of preju-
dicing or injuring another. When the objective of the
actor is illegitimate, the illicit act cannot be concealed
under the guise of exercising a right. The principle does
not permit acts which, without utility or legitimate pur-
pose cause damage to another, because they violate the
concept of social solidarity which considers law as ratio-
nal and just. Hence, every abnormal exercise of a right,
contrary to its socio-economic purpose, is an abuse that
will give rise to liability. The exercise of a right must be
in accordance with the purpose for which it was estab-
lished, and must not be excessive or unduly harsh; there
must be no intention to injure another. Ultimately, how-
ever, and in practice, courts, in the sound exercise of
their discretion, will have to determine all the facts and
circumstances when the exercise of a right is unjust, or
when there has been an abuse of right.”
9. Malice or bad faith is at the core of Article 19.
Good faith is presumed and he who alleges bad faith
has the duty to prove the same. Good faith refers to the
state of the mind which is manifested by the acts of the
individual concerned. It consists of the intention to ab-
stain from taking an unconscionable and unscrupulous
advantage of another. Bad faith does not simply con-
note bad judgment or simple negligence, dishonest pur-
pose or some moral obliquity and conscious doing of a
wrong, a breach of known duty due to some motives or
interest or ill-will that partakes of the nature of fraud.
Malice connotes ill-will or spite and speaks not in re-
sponse to duty. It implies an intention to do ulterior and
unjustifiable harm. Malice is bad faith or bad motive
(DBP vs. Court of Appeals, et al., G.R. No. 137916, Decem-
ber 8, 2004).
10. Thus, where an educational institution was

sued for allegedly misleading a student into believing
that the latter had satisfied all the requirements for gradu-
ation when such is not the case, the Supreme Court found
that in belatedly informing the student of the result of
the removal examination, particularly at a time when he
had already commenced preparing for the bar exams
the school may have acted in bad faith making the suit
for abuse of right under Article 19 of the Civil Code
proper. Educational institutions are duty-bound to in-
form 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 omis-
sion can support a claim for damages (University of the
East vs. Jader, supra).
11. A public utility effecting disconnection of ser-
vice to a delinquent customer without prior written no-
tice was held to have committed tort under Article 21 of
the Civil Code. Said the Court: “. . . petitioner’s act in
disconnecting respondent Ongsip’s gas service without
prior notice constitutes breach of contract amounting to
an independent tort. The prematurity of the action is
indicative of an intent to cause additional mental and
moral suffering to private respondent. This is a clear
violation of Article 21 of the Civil Code which provides
that any person who wilfully causes loss or injury to
another in a manner that is contrary to morals, good
damages. “ (Manila Electric Company vs. Court of Appeals,
et al., G.R. No. L-39019, January 22, 1988)
Emotional 12. In one case, our Supreme Court recognized a
distress tort common law tort referred to as “emotional distress.”
action According to the Supreme Court in MVRS Publications,
et al vs. Islamic Da’wah Council of the Phil, et al., G.R. No.
135306, January 28, 2003, an “emotional distress” tort ac-
tion is personal in nature, i.e., it is a civil action filed by
an individual to assuage the injuries to his emotional
tranquility due to personal attacks on his character. Un-
der the Second Restatement of the Law, to recover for
the intentional infliction of emotional distress the plain-
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SPECIAL TORTS
tiff must show that: (a) The conduct of the defendant

was intentional or in reckless disregard of the plaintiff;
(b) The conduct was extreme and outrageous; (c) There
was a causal connection between the defendant’s con-
duct and the plaintiff’s mental distress; and, (d) The
plaintiff’s mental distress was extreme and severe.
Also, “extreme and outrageous conduct,” as a cause
of action, was defined as a conduct that is so outrageous
in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in civilized society. The
defendant’s actions must have been so terrifying as natu-
rally to humiliate, embarrass or frighten the plaintiff.
13. “Emotional distress” means any highly un-
pleasant mental reaction such as extreme grief, shame,
humiliation, embarrassment, anger, disappointment,
worry, nausea, mental suffering and anguish, shock,
fright, horror, and chagrin. “Severe emotional distress,”
in some jurisdictions, refers to any type of severe and
disabling emotional or mental condition which may be
generally recognized and diagnosed by professionals
trained to do so, including posttraumatic stress disor-
der, neurosis, psychosis, chronic depression, or phobia.
The plaintiff is required to show, among other things,
that he or she has suffered emotional distress so severe
that no reasonable person could be expected to endure
it; severity of the distress is an element of the cause of
action, not simply a matter of damages. Any party seek-
ing recovery for mental anguish must prove more than
mere worry, anxiety, vexation, embarrassment, or anger.
Liability does not arise from mere insults, indignities,
threats, annoyances, petty expressions, or other triviali-
ties. In determining whether the tort of outrage had been
committed, a plaintiff is necessarily expected and re-
quired 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 con-
duct as insulting, or will have his feelings hurt, is not
enough (Id.).
Art. 26 14. The Code Commission explained the inclu-

sion of Article 26 in the Civil Code in this wise: “The
present laws, criminal or civil, do not adequately cope
with interferences and vexations mentioned in Article
26. The privacy of one’s home is an inviolable right. Yet
the laws in force do not squarely and effectively protect
this right. The acts referred to in No. 2 are multifarious,
and yet many of them are not within the purview of the
law in force. Alienation of the affection of another’s wife
or husband, unless it constituted adultery or concubi-
nage, is not condemned by the law, much as it may shock
society. There are numerous acts, short of criminal un-
faithfulness, whereby the husband or the wife breaks
the marital vows, thus causing untold moral suffering
to the other spouse. Why should not these acts be the
subject matter of a civil action for damages? In Ameri-
can law, they are. Again, there is meddling of so-called
friends who poison the mind of one or more members
of the family against the other members. In this manner
many a happy family is broken up or estranged. Why
should not the law try to stop this by creating a civil
action for damages? Of the same nature is that class of
acts specified in No. 3: intriguing to cause another to be
alienated from his friends. No less serious are the acts
mentioned in No. 4: vexing, or humiliating another on
account of his religious beliefs, lowly station in life, place
of birth, physical defect or other personal condition. The
penal laws against defamation and unjust vexation are
glaringly inadequate. Religious freedom does not au-
thorize anyone to heap obloquy and disrepute upon an-
other by reason of the latter’s religion. Not a few of the
rich people treat the poor with contempt because of the
latter’s lowly station in life. To a certain extent this is
inevitable, from the nature of the social make-up, but
there ought to be a limit somewhere, even when the
penal laws against defamation and unjust vexation are
not transgressed. In a democracy, such a limit must be
established. The courts will recognize it in each case.
Social equality is not sought by the legal provision un-
der consideration, but due regard for decency and pro-
priety. Place of birth, of physical defect and other per-
sonal conditions are too often the pretext of humiliation
cast upon other persons. Such tampering with human
CHAPTER 7 109
SPECIAL TORTS
personality, even though the penal laws are not violated,

should be the cause of civil action (See Dissenting Opin-
ion of Justice Carpio in MVRS Publications, et al vs. Is-
lamic Da’wah Council of the Phil, et al., supra).
15. Note, however, that under Section 34 of Re-
public Act 9262, otherwise known as the “Anti-Violence
Against Women and Their Children Act of 2004,’’ any
person, private individual or police authority or
barangay official who, acting in accordance with law,
responds or intervenes without using violence or re-
straint greater than necessary to ensure the safety of the
victim, shall not be liable for any criminal, civil or ad-
ministrative liability resulting therefrom.
Likewise, in Section 43 of its Implementing Rules
and Regulations, “workers of NGOs, POs, church, civic
and other groups, be they Filipino citizens or foreigners,
fall under ‘any person’, are free from any criminal or
civil liability when acting in accordance with law in re-
sponding to a call for help or when assisting the victim-
survivor.’’
16. Article 1314 of the Civil Code provides that Interference
any third person who induces another to violate his con- with contrac-
tract shall be liable for damages to the other contracting tual relations
party. The tort recognized in that provision is known as
interference with contractual relations. The interference
is penalized because it violates the property rights of a
party in a contract to reap the benefits that should result
therefrom (Lagon vs. Court of Appeals, et al., G.R. No.
119107, March 18, 2005).
17. In the case of So Ping Bun v. Court of Appeals,
373 Phil. 532 (1999), the elements of tortuous interfer-
ence with contractual relations were enumerated, viz,
(a) existence of a valid contract; (b) knowledge on the
part of the third person of the existence of the contract
and (c) interference of the third person without legal
justification or excuse. Knowledge of the contract is im-
portant because a defendant in such a case cannot be
made liable for interfering with a contract he is unaware
of.
CHAPTER 8
KINDRED TORTS
Medical 1. Another brand of tort that is gaining recogni-

malpractice/ tion in this jurisdiction is medical malpractice. “This is a
Medical particular form of negligence which consists in the fail-
negligence ure of a physician or surgeon to apply to his practice of
medicine that degree of care and skill which is ordi-
narily employed by the profession generally, under simi-
lar conditions, and in like surrounding circumstances.”
(Reyes, et al. vs. Sisters of Mercy Hospital, et al., G.R. No.
130547, October 3, 2000). Negligence being the backbone
of the suit, this type of litigation is invariably consid-
ered part of tort law.
2. The relationship between physician and pa-
tient is a consensual one wherein the patient knowingly
seeks the assistance of a physician and the physician
knowingly accepts him as patient. The relationship be-
tween a physician and patient may result from an ex-
press or implied contract, either general or special, and
the rights and liabilities of the parties thereto are gov-
erned by the general law of contract. The voluntary ac-
ceptance of the physician patient relationship by the af-
fected parties creates a prima facie presumption of con-
tractual relationship between them. The relationship is
not dependent upon payment of fees, for a physician
may accept a patient and thereby incur the consequent
duties although his services are performed gratuitously.
However, the generally accepted rule is that where a job
applicant or employee is examined by a doctor engaged
by the prospective or actual employer, there is no doc-
tor-patient relationship between the physician and the
examinee (cf., 61 Am Jur 2d, pp. 290-292). Where a physi-
cian- patient relationship is present, physicians have a
110
CHAPTER 8 111
KINDRED TORTS
duty to use at least the same level of care that any other
reasonably competent doctor would use to treat a con-
dition under the same circumstances. The breach of these
professional duties of skill and care, or their improper
performance, by a physician surgeon whereby the pa-
tient is injured in body or in health, constitutes action-
able malpractice. In the event that any injury results to
the patient from want of due care or skill during the
operation, the surgeons may be held answerable in dam-
ages for negligence (Garcia-Rueda vs. Pascasio, supra, cit-
ing Hoover v. Williamson, 236 Md 250 and Gore v. Board
of Medical Quality, 110 Cal App 3d 184 (1980).
3. It is a universal rule that a physician or sur-
geon has the duty to use reasonable care and skill in
diagnosis and treatment. The standard by which the re-
quirement of reasonable skill and care is determined is
the average standard of the profession (61 Am Jur 2d, at
339).
In particular, a doctor has the duty to inform the
patient fully of his condition, and of the results of the
tests made. If the physician discovers, or should know
or discover, that the patient’s ailment is beyond his
knowledge or technical skill, ability or capacity to treat
with a likelihood of reasonable success, he is also under
duty to disclose that fact to the patient and advise him
of the necessity of other or different treatment. It has
also been recognized that there exists a duty on the part
of the physician to advise his patient to consult a spe-
cialist or one qualified in a method of treatment which
the physician is not qualified to give. It is also the settled
rule that one who engages a physician to treat his case
impliedly engages him to attend throughout the illness,
or until his services are dispensed with, but it is recog-
nized that a physician has the right to withdraw from a
case by giving due notice to the patient and affording
him the ample opportunity to secure other medical at-
tendance of his own choice. As corollary to the
physician’s right to withdraw from a case upon giving
proper notice, he is also under duty not to abandon the
patient and to continue attendance until all the condi-
tions for his rightful withdrawal are complied with (cf.,
65 Am Jur 2d, pp. 358 to 368).
4. As a general rule, “[d]octors are protected by

a special rule of law. They are not guarantors of care.
They do not even warrant a good result. They are not
insurers against mishaps or unusual consequences. Fur-
thermore they are not liable for honest mistakes of judg-
ment. . . .” (Cruz vs. Court of Appeals, et al., G.R. No.
122445, November 18, 1997, citing “THE PHYSICIAN’S
LIABILITY AND THE LAW ON NEGLIGENCE” by
Constantino Nuñez, p. 1 citing Louis Nizer, My Life in
Court, New York: Double Day & Co., 1961 in Tolentino,
Jr., MEDICINE and LAW, Proceedings of the Sympo-
sium on Current Issues Common to Medicine and Law
U.P. Law Center, 1980).
But in accepting a case, a doctor in effect repre-
sents that, having the needed training and skill possessed
by physicians and surgeons practicing in the same field,
he will employ such training, care and skill in the treat-
ment of his patients. He therefore has a duty to use at
least the same level of care that any other reasonably
competent doctor would use to treat a condition under
the same circumstances. It is in this aspect of medical
malpractice that expert testimony is essential to estab-
lish not only the standard of care of the profession but
also that the physician’s conduct in the treatment and
care falls below such standard. Further, inasmuch as the
causes of the injuries involved in malpractice actions are
determinable only in the light of scientific knowledge, it
has been recognized that expert testimony is usually nec-
essary to support the conclusion as to causation (Id., cit-
ing MEDICINE and LAW, supra, p. 25; Willard vs.
Hutson, 1 ALR 3d 1092, 1102 [1963]; Snyder vs. Pantaleo,
122 A. 2d 21, 23 [1956] and American Jurisprudence 2d,
Vol. 61, p. 510).
Elements of 5. In order to successfully pursue such a claim,
medical a patient must prove that a health care provider, in most
negligence cases a physician, either failed to do something which a
reasonably prudent health care provider would have
done, or that he or she did something that a reasonably
prudent provider would not have done; and that failure
or action caused injury to the patient. Hence, there are
four elements involved in medical negligence cases: duty,
CHAPTER 8 113
KINDRED TORTS
breach, injury and proximate causation. (Garcia- Rueda

vs. Pascasio, et al., G.R. No. 118141, September 5, 1997 cit-
ing Hirschberg v. State, 91 Misc 2d 590 (1977).
Here, claims under medical malpractice are most
often brought as a civil action for damages under Article
2176 of the Civil Code, and in some instances, as a crimi-
nal case under Article 365 of the Revised Penal Code
with which the civil action for damages is impliedly in-
stituted (Cruz vs. Court of Appeals, et al., supra).
6. In the absence of a special contract, a physi-
cian 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 pos-
sess and exercise the degree of skill and learning ordi-
narily possessed and exercised under similar circum-
stances by the members of his profession in good stand-
ing, and to use ordinary and reasonable care and dili-
gence, and his best judgment, in the application of his
skill to the case (70 CJS 946).
But a physician holding himself out as having spe-
cial 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 pos-
sessed by general practitioners, but that special degree
of skill and knowledge possessed by physicians who
devote special study and attention to the treatment of
such organ, disease or injury, regard being had of the
state of scientific knowledge at the time (Id., at 949).
7. In determining the degree of learning and skill
required of a physician or surgeon in his treatment of a
particular case, the following factors are usually consid-
ered, to wit, the state of medical or surgical science at
the time, the locality in which the physician practices,
the general rules and principles of the particular school
of medicine which he follows, and the nature of the case
and the condition of the patient. But the fact that a phy-
sician or surgeon renders his services gratuitously does
not absolve him from the duty to use reasonable and
ordinary care, skill and diligence (cf., id. at pages 950-
954). Also, an offer to perform a second operation to

remedy the effect of an unskillful or carelessly performed
former operation or treatment is no defense to an action
for malpractice in the first operation or treatment and
although the principle of volenti non fit injuria has been
invoked to prevent a recovery, consent of the patient to
an operation does not ordinarily relieve defendant from
liability (cf., Ibid., at p. 982).
Also, regard is had to “the state of medical or sur-
gical science at the time. The locality in which a physi-
cian practices is likewise important in determining the
degree of skill and care required of him, and the rule is
frequently stated that a physician or surgeon is required,
or is only required, to exercise the same degree of care
and skill exercised by physicians and surgeons in good
standing engaged in the same general line of practice in
the same locality or neighborhood” (Id., at p. 950). This
is otherwise referred to as the “locality rule.” In the
United States, this rule has been criticized as having pro-
tected low standard of care practiced in the community
and is seen as a disincentive for improved patient care
and services. Thus, some courts also considered not only
the prevailing practice in a particular locality but the
national standards as established by medical specialty
organizations.
8. Some acts or omissions constituting negli-
gence or malpractice are: (a) wrong diagnosis, when such
results from want of requisite skill or care; (b) unwar-
ranted abandonment of a case after its assumption, at
least where he does not give reasonable notice or pro-
vide a competent physician in his place; (c) operating
without patient’s consent where a patient is in posses-
sion of his faculties and in such physical health as to be
able to consult about his condition, and no emergency
exists in making it impracticable to confer with him, or
without the consent of the parents, spouse or guardian,
in the absence of an emergency; (d) failing to give the
patient or his family or attendants all necessary and
proper instructions as to the care and attention to be
given to the patient and the cautions to be observed; (e)
allowing a foreign substance to enter or remain in the
CHAPTER 8 115
KINDRED TORTS
body of the person operated on, and this extends to the

sponges and pads; (f) failing to give warning when at-
tending to a patient afflicted with contagious or infec-
tious disease, (g) writing an erroneous prescription; or
(h) issuing wrongful certificate of insanity or inebriety
(Id., at pages 960-972).
9. Under the “error in judgment rule,” “a phy- Error in
sician is not liable for error in his judgment when he judgment rule
applies ordinary and reasonable skill and care, or his
best judgment, or keeps within recognized and approved
methods or common practice, or if he forms his judg-
ment after a careful or proper examination or investiga-
tion” (Id., at 963).
10. In litigations involving medical negligence,
the plaintiff has the burden of establishing negligence
and for a reasonable conclusion of negligence, there must
be proof of breach of duty on the part of the surgeon as
well as a causal connection of such breach and the re-
sulting death of his patient. In Chan Lugay v. St. Luke’s
Hospital, Inc., (10 CA Reports 415 [1966]) where the at-
tending physician was absolved of liability for the death
of the complainant’s wife and newborn baby, the Su-
preme Court held that: “In order that there may be a
recovery for an injury, however, it must be shown that
the ‘injury for which recovery is sought must be the
legitimate consequence of the wrong done; the connec-
tion between the negligence and the injury must be a
direct and natural sequence of events, unbroken by in-
tervening efficient causes.’ In other words, the negligence
must be the proximate cause of the injury. For, ‘negli-
gence, no matter in what it consists cannot create a right
of action unless it is the proximate cause of the injury
complained of.’ And ‘the proximate cause of an injury is
that cause, which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces
the injury, and without which the result would not have
occurred.’”
11. As a rule, there is necessity of expert testi- Evidential
mony. “Inasmuch as the causes of the injuries involved rules
in malpractice actions are determinable only in the light
of scientific knowledge, it has been recognized that ex-
pert testimony is usually necessary to support the con-

clusion as to causation.” (Reyes vs. Sisters of Mercy, supra)
Essentially, it requires two-pronged evidence: evidence
as to the recognized standards of the medical commu-
nity in the particular kind of case, and a showing that
the physician in question negligently departed from this
standard in his treatment [Garcia-Rueda vs. Pascasio, su-
pra, citing 61 Am Jur 2nd (1972) and Davis v. Virginian
R. Co, 361 US 354].
However, although generally, expert medical testi-
mony is relied upon in malpractice suits to prove that a
physician has done a negligent act or that he has devi-
ated from the standard medical procedure, “obvious er-
rors” may nonetheless bring about the application of
the doctrine of res ipsa loquitur. In such case, the need for
expert medical testimony is dispensed with because the
injury itself provides the proof of negligence. “The rea-
son is that the general rule on the necessity of expert
testimony applies only to such matters clearly within
the domain of medical science, and not to matters that
are within the common knowledge of mankind which
may be testified to by anyone familiar with the facts.
Ordinarily, only physicians and surgeons of skill and
experience are competent to testify as to whether a pa-
tient has been treated or operated upon with a reason-
able degree of skill and care. However, testimony as to
the statements and acts of physicians and surgeons, ex-
ternal appearances, and manifest conditions which are
observable by any one may be given by non-expert wit-
nesses. Hence, in cases where the res ipsa loquitur is ap-
plicable, the court is permitted to find a physician negli-
gent upon proper proof of injury to the patient, without
the aid of expert testimony where the court from its fund
of common knowledge can determine the proper stan-
dard of care. Where common knowledge and experi-
ence teach that a resulting injury would not have oc-
curred to the patient if due care had been exercised, an
inference of negligence may be drawn giving rise to an
application of the doctrine of res ipsa loquitur without
medical evidence, which is ordinarily required to show
not only what occurred but how and why it occurred.
When the doctrine is appropriate, all that the patient
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KINDRED TORTS
must do is prove a nexus between the particular act or

omission complained of and the injury sustained while
under the custody and management of the defendant
without need to produce expert medical testimony to
establish the standard of care. Resort to res ipsa loquitur
is allowed because there is no other way, under usual
and ordinary conditions, by which the patient can ob-
tain redress for injury suffered by him” (Ramos vs. Court
of Appeals, et al., G.R. No. 124354, December 29, 1999).
12. In the Ramos case, “Erlinda Ramos, after seek-
ing professional medical help, was advised to undergo
an operation for the removal of a stone in her gall blad-
der (cholecystectomy). She was referred to Dr. Hosaka,
a surgeon, who agreed to perform the operation on her.
The operation was scheduled for June 17, 1985 at 9:00 in
the morning at private respondent De Los Santos Medi-
cal Center (DLSMC). Since neither Erlinda nor her hus-
band, Rogelio, knew of any anesthesiologist, Dr. Hosaka
recommended to them the services of Dr. Gutierrez. Dr.
Hosaka finally arrived at the hospital at around 12:10 in
the afternoon, or more than three (3) hours after the
scheduled operation. Cruz, who was then still inside the
operating room, heard about Dr. Hosaka’s arrival. While
she held the hand of Erlinda, Cruz saw Dr. Gutierrez
trying to intubate the patient. Cruz heard Dr. Gutierrez
utter: “ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan.” Cruz noticed a blu-
ish discoloration of Erlinda’s nailbeds on her left hand.
She (Cruz) then heard Dr. Hosaka instruct someone to
call Dr. Calderon, another anesthesiologist. When he ar-
rived, Dr. Calderon attempted to intubate the patient.
The nailbeds of the patient remained bluish, thus, she
was placed in a trendelenburg position — a position
where the head of the patient is placed in a position
lower than her feet. At this point, Cruz went out of the
operating room to express her concern to Rogelio that
Erlinda’s operation was not going well. Cruz quickly
rushed back to the operating room and saw that the
patient was still in trendelenburg position. At almost
3:00 in the afternoon, she saw Erlinda being wheeled to
the Intensive Care Unit (ICU). The doctors explained to
Rogelio that his wife had bronchospasm. Erlinda stayed
in the ICU for a month. She was released from the hos-
pital only four months later or on November 15, 1985.
Since the ill-fated operation, Erlinda remained in coma-
tose condition until she died on August 3, 1999.” The
Supreme Court held that “[t]he injury incurred by Erlinda
does not normally happen absent any negligence in the
administration of anesthesia and in the use of an endot-
racheal tube. As was noted in the Decision, the instru-
ments used in the administration of anesthesia, includ-
ing the endotracheal tube, were all under the exclusive
control of Dr. Gutierrez and Dr. Hosaka. In Voss vs.
Bridwell, which involved a patient who suffered brain
damage due to the wrongful administration of anesthe-
sia, and even before the scheduled mastoid operation
could be performed, the Kansas Supreme Court applied
the doctrine of res ipsa loquitur, reasoning that the injury
to the patient therein was one which does not ordinarily
take place in the absence of negligence in the adminis-
tration of an anesthetic, and in the use and employment
of an endotracheal tube. The court went on to say that
“[o]rdinarily a person being put under anesthesia is not
rendered decerebrate as a consequence of administering
such anesthesia in the absence of negligence. Upon these
facts and under these circumstances, a layman would be
able to say, as a matter of common knowledge and ob-
servation, that the consequences of professional treat-
ment were not as such as would ordinarily have fol-
lowed if due care had been exercised.” (Ramos, et al. vs.
Court of Appeals, et al., G.R. No. 124354, April 11, 2002).
Liability of 13. As regards the responsibility of the hospital
hospitals in medical malpractice cases, the Supreme Court first
noted the “unique practice (among private hospitals) of
filling up specialist staff with attending and visiting “con-
sultants,” who are allegedly not hospital employees.” It
also noted that hospitals exercise significant control in
the hiring and firing of consultants and in the conduct
of their work within the hospital premises. Doctors who
apply for “consultant” slots, visiting or attending, are
required to submit proof of completion of residency, their
educational qualifications; generally, evidence of accredi-
tation by the appropriate board (diplomate), evidence
of fellowship in most cases, and references. These re-
CHAPTER 8 119
KINDRED TORTS
quirements are carefully scrutinized by members of the

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

diligence of a good father of a family to prevent damage
(Ibid.).
The hospital filed motion for reconsideration. It ar-
gued that DLSMC “does not hire or engage the services
of a consultant, but rather, accredits the latter and grants
him or her the privilege of maintaining a clinic and/or
admitting patients in the hospital upon a showing by
the consultant that he or she possesses the necessary
qualifications, such as accreditation by the appropriate
board (diplomate), evidence of fellowship and references.
Second, it is not the hospital but the patient who pays
the consultant’s fee for services rendered by the latter.
Third, a hospital does not dismiss a consultant; instead,
the latter may lose his or her accreditation or privileges
granted by the hospital. Lastly, when a doctor refers a
patient for admission in a hospital, it is the doctor who
prescribes the treatment to be given to said patient. The
hospital’s obligation is limited to providing the patient
with the preferred room accommodation, the nutritional
diet and medications prescribed by the doctor, the equip-
ment and facilities necessary for the treatment of the
patient, as well as the services of the hospital staff who
perform the ministerial tasks of ensuring that the doctor’s
orders are carried out strictly” (Ramos et al. vs. Court of
Appeals, G.R. No. 124354, April 11, 2002).
The Supreme Court granted the motion for recon-
sideration and ruled that “[a]s explained by respondent
hospital, the admission of a physician to membership in
DLSMC’s medical staff as active or visiting consultant is
first decided upon by the Credentials Committee thereof,
which is composed of the heads of the various specialty
departments such as the Department of Obstetrics and
Gynecology, Pediatrics, Surgery with the department
head of the particular specialty applied for as chairman.
The Credentials Committee then recommends to
DLSMC’s Medical Director or Hospital Administrator
the acceptance or rejection of the applicant physician,
and said director or administrator validates the
committee’s recommendation. Similarly, in cases where
a disciplinary action is lodged against a consultant, the
CHAPTER 8 121
KINDRED TORTS
same is initiated by the department to whom the con-

sultant concerned belongs and filed with the Ethics Com-
mittee 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 be-
tween the consultant in respondent hospital and his pa-
tient is separate and distinct from the contract between
respondent hospital and said patient. The first has for
its object the rendition of medical services by the con-
sultant to the patient, while the second concerns the pro-
vision by the hospital of facilities and services by its
staff such as nurses and laboratory personnel necessary
for the proper treatment of the patient. Further, no evi-
dence was adduced to show that the injury suffered by
petitioner Erlinda was due to a failure on the part of
respondent DLSMC to provide for hospital facilities and
staff necessary for her treatment. For these reasons, the
finding of liability on the part of DLSMC for the injury
suffered by Erlinda was reversed.” (Ibid.).
14. As regards special or limited practitioners, the Special or
rules and standards governing the duty and liability of limited
physicians and surgeons in the performance of profes- practitioners
sional services are applicable to practitioners of the kin-
dred branches of the healing art, such as chiropodists,
chiropractors, Christian science healers, dentists, practi-
tioners of naturopathy, nurses, optometrists and opti-
cians and operators of X-ray machines.
15. Aside from primary liability of physicians and
surgeons for their own negligent acts, the weight of au-
thorities in common law countries also hold them vi-
cariously liable for the acts of their assistants. This pro-
ceeds from the premise that a physician or surgeon must
exercise due care in selecting his assistants.
While courts in the United States are divided as to
the liability of an operating surgeon, for instance, for the
negligence of the assisting nurses, it seems that the pre-
vailing view is to consider whether the nurse is the em-
ployee of the hospital or the “borrowed” assistant of the
surgeon. As stated in 61 Am Jur 2d, page 438, “an increas-

ing number of courts, although not abandoning the so-
called ‘Captain of the Ship’ rule under which the sur-
geon 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 con-
trol and supervision by surgeon.” Thus, for acts of nurses
belonging to these categories and which are not consid-
ered “medical”, the nurse is considered to have acted as
servant of the hospital, and that the surgeon may not be
held liable for the nurse’s negligence therein.
Legal mal- 16. Legal malpractice is likewise a recognized
practice ground for civil liability. In STI Drivers Association, et al.
2002, it was held that damages can be recovered as a
result of inaction of counsel. And in a case where the
lawyer was negligent and the negligence resulted in the
dismissal of the client’s civil action for damages, the Su-
preme Court ordered the lawyer to reimburse his client
with attorney’s fees and paid court appearances (Richards
vs. Asoy, G.R. No. AC No. 2655, July 9, 1987).
But lawyers, like doctors, are not liable for mere
error of judgment. “Mistakes of attorneys as to the com-
petency of a witness, the sufficiency, relevancy or irrel-
evancy of certain evidence, the proper defense or the
burden of proof, failure to introduce evidence, to sum-
mon witnesses, and to argue the case, unless they preju-
dice the client and prevent him from properly present-
ing his case, do not constitute gross incompetence or
negligence (Tesoro v. Court of Appeals, G.R. No. 36666,
December 19, 1973, 54 SCRA 296, 304 citing People v. Ner,
G.R. No. 25504, July 31, 1969, 28 SCRA 1151, Rivero v.
Santos et al., 98 Phil. 500 (1956), Isaac v. Mendoza, 89 Phil.
279 (1951); Montes v. CFI of Tayabas, 48 Phil. 640 (1926);
People v. Manzanilla, 43 Phil. 167 (1922); US v. Dungca, 27
Phil. 274 (1914); US v. Umali, 15 Phil. 33 (1910).
Liability of 17. Under Section 31 of the Corporation Code of
directors and the Philippines, directors or trustees who are guilty of
trustees of gross negligence or bad faith in directing the affairs of
corporation the corporation or acquire any personal or pecuniary
CHAPTER 8 123
KINDRED TORTS
interest in conflict with their duty as such directors or

trustees shall be liable jointly and severally for all dam-
ages resulting therefrom suffered by the corporation, its
stockholders or members and other persons.
18. Another case similarly regarded as tort is nui- Nuisance
sance. In the United States, nuisance is considered a prop-
erty tort. But in the Philippines, nuisance is placed in
different concept from quasi-delict which is generally
founded on negligence. In negligence, the question gen-
erally asked is whether it was unreasonable for the de-
fendant to act as he did in view of the threatened danger
or harm to one in plaintiff’s position. In nuisance, on the
other hand, the question generally is whether the
defendant’s use of his property was unreasonable to
plaintiff, without regard to foreseeability of injury. Li-
ability for negligence is based on a want of proper care,
while, ordinarily, a person who creates or maintains a
nuisance is liable for the resulting injury to others re-
gardless of the degree of care or skill exercised to avoid
such injury. Also, the principles of negligence ordinarily
apply where the cause of action is for harm resulting
from one act which created an unreasonable risk of in-
jury; whereas the principles of nuisance ordinarily ap-
ply where the cause of action is for continuing harm
caused by continuing or recurrent acts which cause dis-
comfort or annoyance to plaintiff in the use of his prop-
erty (II Tolentino 432).
Nuisance is treated in Book II, Title VIII of the Civil
Code.
DAMAGES
CHAPTER 1
Damages, 1. In legal contemplation, the term “damages”

defined is the sum of money which the law awards or imposes
as pecuniary compensation, recompense or satisfaction
for an injury done (25 CJS 613).
Distinguished 2. Although the words “damages,” “damage”
from other and “injury” are sometimes used synonymously, there
concepts is a material distinction between damages and injury.
Injury is the illegal invasion of a legal right; damage is
the loss, hurt or harm which results from the injury; and
damages are the recompense or compensation awarded
for the damage suffered. Thus, there can be damage with-
out injury in those instances in which the loss or harm
was not the result of a violation of a legal duty. In such
cases, the consequences must be borne by the injured
person alone, the law affords no remedy for damages
resulting from an act which does not amount to a legal
injury or wrong. These situations are often called dam-
num absque injuria. In other words, in order that a plain-
tiff may maintain an action for the injuries of which he
complains, he must establish that such injuries resulted
from a breach of duty which the defendant owed to the
plaintiff a concurrence of injury to the plaintiff and legal
responsibility by the person causing it. The underlying
basis for the award of tort damages is the premise that
an individual was injured in contemplation of law. Thus,
there must first be a breach of some duty and the impo-
sition of liability for that breach before damages may be
awarded; and the breach of such duty should be the
124
CHAPTER 1 125
proximate cause of the injury (BPI Express Card Corpora-

tion vs. Court of Appeals, G.R. No. 120639, September 25,
1998).
3. If damage results from a person’s exercising
his legal rights, it is damnum absque injuria1 (Auyong Hian
vs. CTA, 59 SCRA 110).
4. The fundamental principle or theory on which Rationale
an award of damages is based is just compensation. It is
indemnity or reparation for the loss or injury sustained
by the injured party so that he may be made whole and
restored as nearly as possible to the position or condi-
tion he was in prior to the injury (25 CJS 626).
5. Damages to property or person are either gen- General and
eral or special. General damages are such as naturally special
and necessarily result from the wrong. They are such as damages
might accrue to any person similarly situated. Special
damages are such as do in fact accrue to the particular
individual by reason of the particular circumstances of
the case. Special damages are such as have proximately
resulted but do not always immediately result from the
breach and will not therefore be implied by law (cf., 25
CJS 620).
6. The difference becomes significant in the area
of pleading. General damages need not be specially
pleaded and may be embraced in the general plea for
“such other relief as may be deemed just and equitable
under the premises.” But special damages must be spe-
cifically prayed for. “If any special damage has also been
suffered, it should be set out on the pleadings” (Jimenez
vs. Reyes, G.R. No. 8227, March 9, 1914).
7. In an action for breach of contract of carriage
where by reason thereof, the passengers died, damages
for loss of earning capacity, separately from the indem-
nities by reason of death, may be considered included in
the prayer for “actual damages” and for other “just and
1
Literally, “damage without injury.”
equitable reliefs” (Bulante vs. Liante, et al., G.R. No.

L-21583 & L-21591-92, May 20, 1968).
8. In the Philippines, damages may be: (1) Ac-
tual or compensatory; (2) Moral; (3) Nominal; (4) Tem-
perate or moderate; (5) Liquidated; or (6) Exemplary or
corrective (Art. 2197, Civil Code).
127
CHAPTER 2
ACTUAL DAMAGES
1. Actual and compensatory damages are those Actual

recoverable because of pecuniary loss — in business, damages
trade, property, profession, job or occupation (Albenson defined
Enterprises Corp. et al. vs. Court of Appeals, et al., G.R. No.
88694, January 11, 1993).
Under both the Spanish Civil Code and American
law of damages, actual damages for a negligent act or
omission are confined to those which “were foreseen or
might have been foreseen,” or those which were “the
natural and probable consequences” or “the direct and
immediate consequences” of the act or omission. Actual
damages, under the American system, include pecuni-
ary recompense for pain and suffering, injured feelings,
and the like. Actual damages in the Philippines do not
extend to such incidents. Aside from this exception, ac-
tual damages, in this jurisdiction, in the sense that they
mean just compensation for the loss suffered, are practi-
cally synonymous with actual damages under the Ameri-
can system (Algarra vs. Sandejas, G.R. No. 8385, March 24,
1914).
2. Except as provided by law or by stipulation,
one is entitled to an adequate compensation only for
such pecuniary loss suffered by him as he has duly
proved. Such compensation is referred to as actual or
compensatory damages (Art. 2199, NCC). Both “actual”
damages and “consequential” damages are dealt with
in the Civil Code under the same Chapter 2 of Title XVIII
and the two terms are used as equivalent of one another
(M.D. Transit & Taxi Co., Inc. vs. Court of Appeals, et al.,
G.R. No. L-23882, February 17, 1968).
127
Requirements 3. In determining actual damages, the court can

for the grant not rely on “speculation, conjecture or guess works as to
of actual the amount. Without the actual proof of loss, the award
damages of actual damages becomes erroneous (Guilatco vs. City
of Dagupan, et al., G.R. No. 61516, March 21, 1989). To
seek recovery for actual damages, it is necessary to prove
with a reasonable degree of certainty, premised upon
competent proof and on the best evidence obtainable by
the injured party, the actual amount of loss. Courts can-
not simply assume that damages were sustained by the
injured party, nor can it rely on speculation or guess-
work in determining the fact and amount of damages
(People vs. Degoma, G.R. No. 89404-405, May 22, 1992). A
party is entitled to adequate compensation only for duly
proved pecuniary loss actually suffered by him or her. Such
damages, to be recoverable, must not only be capable of
proof, but must actually be proved with a reasonable
degree of certainty. Damages cannot be presumed or pre-
mised on conjecture or even logic. In making an award,
courts must point out specific facts which show a basis
for the amount of compensatory or actual damages
(Oarde et al. vs. Court of Appeals, et al., G.R. No. 104774-75,
October 8, 1997).
4. The burden of proof of the damages suffered
is on the party claiming the same. It is the duty of peti-
tioner to present evidence to support his claim for ac-
tual damages (Salas vs. Court of Appeals, G.R. No. 86500,
November 21, 1990). He must establish his case by a pre-
ponderance of evidence which means that the evidence,
as a whole, adduced by one side is superior to that of
the other (G.Q. Garments, Inc. versus Miranda, et al., G.R.
No. 161722, July 20, 2006). Actual damages are such com-
pensation or damages for an injury that will put the
injured party in the position in which he had been be-
fore he was injured. They pertain to such injuries or
losses that are actually sustained and susceptible of mea-
surement. Except as provided by law or by stipulation,
a party is entitled to adequate compensation only for
such pecuniary loss as he has duly proven. (Ong et al. vs.
Court of Appeals, et al., G.R. No. 117103, January 29, 1999).
But “[w]here defense admitted as to the claim for actual
damages, the award of actual damages in the amount of
CHAPTER 2 129
ACTUAL DAMAGES
P47,000.00 may be upheld’’ (cf., People vs. Reyes, G.R. No.

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

tory damages: one is the loss of what a person already
possesses, and the other is the failure to receive as a
benefit that which would have pertained to him . . . In
the latter instance, the familiar rule is that damages con-
sisting of unrealized profits, frequently referred as
“ganacias frustradas” or “lucrum cessans,’’ are not to be
granted on the basis of mere speculation, conjecture, or
surmise, but rather by reference to some reasonably defi-
nite standard such as market value, established experi-
ence, or direct inference from known circumstances [Pro-
ducers Bank of the Philippines vs. Court of Appeals, 365 SCRA
326 (2001)].
In contracts 9. In contracts and quasi-contracts,1 the damages
and quasi- which may be awarded are dependent on whether the
contracts obligor acted with good faith or otherwise.
10. In case of good faith, the damages recover-
able are those which are the natural and probable conse-
quences of the breach of the obligation and which the
parties have foreseen or could have reasonably foreseen
at the time of the constitution of the obligation. If the
obligor acted with fraud, bad faith, malice, or wanton
attitude, he shall be responsible for all damages which
may be reasonably attributed to the non-performance of
the obligation (Art. 2201, NCC).
11. It is true that under Article 2206 of the Civil
Code of the Philippines, only deaths caused by a crime
as quasi delict are entitled to actual and compensatory
damages without the need of proof of the said damages.
However, the Civil Code, in Article 1764 thereof, ex-
pressly makes Article 2206 applicable “to the death of a
passenger caused by the breach of contract by a com-
mon carrier.” Accordingly, a common carrier is liable for
1
The Civil Code does not confine itself exclusively to the quasi-
contracts enumerated from Articles 2144 to 2175 but is open to the
possibility that, absent a pre-existing relationship, there being neither
crime nor quasi-delict, a quasi-contractual relation may be forced upon
the parties to avoid a case of unjust enrichment (PNB vs. Court of
Appeals, et al., G.R. No. 97995, January 21, 1993).
CHAPTER 2 131
ACTUAL DAMAGES
actual or compensatory damages under Article 2206 in

relation to Article 1764 of the Civil for deaths of its pas-
sengers caused by the breach of the contract of transpor-
tation. The trial court awarded an indemnity of
P30,000.00 for the death of the daughter of private re-
spondents. The award of damages under Article 2206
has been increased to P50,000.00 (Sulpicio Lines, Inc. vs.
Court of Appeals, et al., G.R. No. 113578, July 14, 1995 cit-
ing People v. Flores, 237 SCRA 653 [1994]).
12. In actions based on torts or quasi-delicts, ac- In quasi-
tual damages include all the natural and probable con- delicts
sequences of the act or omission complained of. There
are two kinds of actual or compensatory damages: one
is the loss of what a person already possesses (daño
emergente), and the other is the failure to receive as a
benefit that which would have pertained to him (lucro
cesante) (Marikina Auto Line Transport Corporation vs.
People, et al., G.R. No. 152040, March 31, 2006).
13. In crimes and quasi-delicts, the defendants In crimes
shall be liable for all damages which are the natural and
probable consequences of the act or omission complained
of, whether or not such damages have been foreseen or
could have reasonably been foreseen by the defendant
(Public Estates Authority vs. Chu, G.R. No. 145291, Septem-
ber 21, 2005). In the United States, this rule is otherwise
referred to as the eggshell skull rule (or thin-skull rule)
which makes an individual responsible for all the conse-
quences of his act, whether foreseen or unforeseen. The
term implies that if a person had a skull as delicate as
the shell of an egg, and a tortfeasor or assailant who did
not know of that condition were to tap that person on
the head, causing the skull to break, the responsible party
would be held liable for all damages resulting from the
wrongful contact, even though they were not foresee-
able. The general maxim is that the defendant must “take
their victim as they find them” (Internet-http://
www.answers.com//torts).
14. The civil liability ex delicto provided by the
Revised Penal Code, that is, restitution, reparation and
indemnification, all correspond to actual or compensa-
tory damages in the Civil Code (People vs. Prades, G.R.
No. 127569, July 30, 1998). But of the expenses allegedly

incurred, the Court can only give credence to those sup-
ported by receipt and which appear to have been genu-
inely incurred in connection with the death, wake or
burial of the victim. Thus, the Court cannot take account
of receipts showing expenses incurred before the date of
the slaying of the victim; those incurred after a consider-
able lapse of time from the burial of the victim and which
do not have any relation to the death, wake or burial of
the victim; those incurred for purely aesthetic or social
purposes, such as the lining with marble of the tomb of
the victim; those which appear to have been modified to
show an increase in the amount of expenditure . . .; those
expenditures which could not be reasonably itemized or
determined to have been incurred in connection with
the death, wake or burial of the victim; those which,
nonetheless, would have been incurred despite the death,
wake and burial of the victim, the death, wake and burial
being merely incidental; and those which were not in
fact shouldered by the immediate heirs of the victim,
such as plane tickets by relatives or in-laws (People vs.
Degoma and Taborada , 209 SCRA 266).
15. The indemnity authorized by our criminal law
as civil indemnity ex delicto for the offended party, in the
amount authorized by the prevailing judicial policy and
aside from other proven actual damages, is itself equiva-
lent to actual or compensatory damages in civil law. Said
civil indemnity is mandatory upon finding of the fact of
rape; it is distinct from and should not be denominated
as moral damages which are based on different jural
foundations and assessed by the court in the exercise of
sound judicial discretion (People vs. Jalosjos, G.R. No.
132875-76, November 16, 2001). In cases of rape with ho-
micide, the civil indemnity is fixed at P100,000.00. (People
vs. Plana, et al., G.R. No. 128285, November 27, 2001).
16. Damages may be recovered for loss or im-
pairment of earning capacity in cases of temporary or
permanent personal injury (Article 2205, NCC).
17. As for lost earnings, the rule is that “the
amount recoverable by the heirs of a victim of a tort is
not the loss of the entire earnings, but rather the loss of
CHAPTER 2 133
ACTUAL DAMAGES
that portion of the earnings which the beneficiary would

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

rate of loss sustained by the heirs of the victim. In a case,
albeit there was no evidence on the state of health of the
victim, considering his advanced age, the Court found it
reasonable and fair to assume that he would not be able
to work and earn, as a dentist, until he reaches the final
moment of his life. Thus, the award for loss of the earn-
ing capacity of the deceased was reduced to P144,000.00,
which is the approximate amount he would have earned
until his 75th birthday (People vs. Balanag, et al., G.R. No.
103225, September 15, 1994).
20. Anent the amount of lost income, the formula
for its computation is “Net Earning Capacity = [2/3 x
(80 - age at time of death) x (gross annual income —
reasonable and necessary living expenses)]” (People vs.
Sia, et al., G.R. No. 137457, 21 November 2001). In the
absence of proof of living expenses of the deceased, net
earnings are computed at fifty (50%) percent of the gross
earnings (Ibid.).
21. A handwritten certification in a yellow pad
indicating therein that the victim was paid P146.75 per
day hardly suffices as proof to justify an award as it is,
at best, self-serving. While there was additional testimo-
nial evidence by the victim’s mother on his income, the
same can no longer serve as basis for lost earnings, in
the light of the ruling in People v. Panabang, and reiter-
ated in People v. Cuenca. There it was held that indem-
nification for loss of earning capacity partakes of the
nature of actual damages which must be duly proven;
and a self-serving statement, being unreliable, is not
enough. For lost income to be recovered, there must be
an unbiased proof of the deceased’s average, not just
gross income (People vs. Loterono, G.R. No. 146100, No-
vember 13, 2002).
22. The indemnification for loss of earning ca-
pacity partakes of the nature of actual damages which
must be duly proved. In the absence of competent evi-
dence to prove how much the victim was earning, the
heirs of the victim are not entitled thereto (People vs.
Quimzon, G.R. No. 133541, April 14, 2004).
CHAPTER 2 135
ACTUAL DAMAGES
By way of exception, testimonial evidence may suf-

fice if the victim was either (1) self-employed, earning
less than the minimum wage under current labor laws,
and judicial notice may be taken of the fact that in the
victim’s line of work, no documentary evidence is avail-
able; or (2) employed as a daily-wage worker earning
less than the minimum wage under current labor laws.
(People vs. Duban, G.R. No. 141217, 26 September 2003;
People vs. Mallari, G.R. No. 145993, 17 June 2003; People
vs. Caraig, G.R. Nos. 116224-27, 28 March 2003).
23. Also, temperate damages2 may be awarded
in lieu of actual damages for loss of earning capacity
where the income of the victim was not sufficiently
proven (Victory Liner vs. Gammad, et al., G.R. No. 159636,
November 25, 2004).
24. The amount of damages for death caused by
a crime or quasi-delict shall be at least three thousand
pesos, even though there may have been mitigating cir-
cumstances. In addition: (1) The defendant shall be li-
able for the loss of the earning capacity of the deceased,
and the indemnity shall be paid to the heirs of the latter;
such indemnity shall in every case be assessed and
awarded by the court, unless the deceased on account of
permanent physical disability not caused by the defen-
dant, had no earning capacity at the time of his death;
(2) If the deceased was obliged to give support accord-
ing to the provisions of Article 291, the recipient who is
not an heir called to the decedent’s inheritance by the
law of testate or intestate succession, may demand sup-
port from the person causing the death, for a period not
exceeding five years, the exact duration to be fixed by
the court (Article 2206).
25. Civil indemnity in the amount of P50,000.00
is automatically granted to the heirs of the victim with-
out need of any evidence other than the fact of the com-
mission of the crime. (People vs. Obello, G.R. No. 108772,
January 14, 1998).
2
(Chapter 5 on Damages, infra.)
26. But the award of civil indemnity in the

amount of P30,000.00 must be deleted where the accused
was charged with and convicted, not of homicide, but
rather of illegal possession of firearm aggravated by use
of such weapon in a killing. Civil indemnity for death
may, of course, be properly awarded in a separate crimi-
nal prosecution for homicide or murder. In People v.
Deunida, (231 SCRA 520 [1994]) the Supreme Court held
that: “ . . . the awards for actual damages in the amounts
of P50,000.00 representing funeral expenses, although
stipulated by the parties, and P50,000.00 as moral dam-
ages, which the parties left to the discretion of the trial
court, are improper and should be deleted for, although
death had taken place, the offense charged is illegal pos-
session of firearm and the killing merely aggravated it.
No private interest is therefore involved. The civil liabil-
ity arising from death may be the subject of a separate
civil action or impliedly instituted with the criminal ac-
tion for murder or homicide.” (People vs. Somooc, G.R.
No. 100921, June 2, 1995).
27. The civil indemnity is to be awarded to all
compulsory heirs. Thus, in a case where the RTC or-
dered the P50,000.00 indemnity to be paid to the victim’s
surviving spouse alone, Supreme Court held that the
award should actually also be given to their nine chil-
dren who, like their mother, are compulsory heirs of the
victim (People vs. Bahenting, G.R. No. 127659, February 24,
1999).
Interest 28. In Eastern Shipping Lines, Inc. vs. Court of Ap-
peals, 234 SCRA 78 (1994), Supreme Court set a control-
ling guideline on interests as an aspect or component of
actual damages, in this wise:
I. When an obligation, regardless of its source,
i.e., law, contracts, quasi-contracts, delicts or quasi-delicts
is breached, the contravenor can be held liable for dam-
ages. The provisions under Title XVIII on “Damages” of
the Civil Code govern in determining the measure of
recoverable damages.
II. With regard particularly to an award of inter-
est in the concept of actual and compensatory damages,
CHAPTER 2 137
ACTUAL DAMAGES
the rate of interest, as well as the accrual thereof, is im-

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

116) are applicable only to interest by way of compensa-
tion for the use or forbearance of money, interest by way
of damages is governed by Article 2209 of the Civil Code.
30. Interest due shall earn legal interest from the
time it is judicially demanded, although the obligation
may be silent upon this point (Article 2212, NCC).
Attorney’s 31. In the absence of stipulation, attorney’s fees
fees and expenses of litigation, other than judicial costs, can-
not be recovered, except: (1) When exemplary damages
are awarded; (2) When the defendant’s act or omission
has compelled the plaintiff to litigate with third persons
or to incur expenses to protect his interest; (3) In crimi-
nal cases of malicious prosecution against the plaintiff;
(4) In case of a clearly unfounded civil action or pro-
ceeding against the plaintiff; (5) Where the defendant
acted in gross and evident bad faith in refusing to sat-
isfy the plaintiff’s plainly valid, just and demandable
claim; (6) In actions for legal support; (7) In actions for
the recovery of wages of household helpers, laborers
and skilled workers; (8) In actions for indemnity under
workmen’s compensation and employer’s liability laws;
(9) In a separate civil action to recover civil liability aris-
ing from a crime; (10) When at least double judicial costs
are awarded; (11) In any other case where the court deems
it just and equitable that attorney’s fees and expenses of
litigation should be recovered (Article 2208, NCC).
32. The general rule is that attorney’s fees cannot
be recovered as part of damages because of the policy
that no premium should be placed on the right to liti-
gate. They are not to be awarded every time a party
wins a suit. The power of the court to award attorney’s
fees under Article 2208 of the Civil Code demands fac-
tual, legal and equitable justification. Even when a claim-
ant is compelled to litigate with third persons or to in-
cur expenses to protect his rights, still attorney’s fees
may not be awarded where there is no sufficient show-
ing of bad faith in the parties’ persistence of a case other
than an erroneous conviction of the righteousness of his
cause (Citytrust Banking Corp. vs. Villanueva, G.R. No.
141011 & 141028, July 19, 2001).
CHAPTER 2 139
ACTUAL DAMAGES
33. Where recoverable, attorney’s fees are also in

the nature of actual damages, which must be duly
proved. They are also subject to certain standards, to
wit: (1) they must be reasonable, that is to say, they must
have a bearing on the importance of the subject matter
in controversy; (2) the extent of the services rendered;
and (3) the professional standing of the lawyer. In all
cases, they must be addressed in a full-blown trial and
not on the bare word of the parties. And always, they
are subject to the moderating hand of the courts. (Lacson,
et al. vs. Reyes, et al., G.R. No. 86250, February 26, 1990).
34. Attorney’s fees as an item of damages pro-
vided for under Article 2208 of the Civil Code is an award
made in favor of the litigant, not of his counsel, and the
litigant, not his counsel, is the judgment creditor who
may enforce the judgment for attorney’s fees by execu-
tion (Quirante vs. Intermediate Appellate Court, G.R. No.
73886, January 31, 1989).
35. ‘[T]he reason for the award of attorney’s fees
must be stated in the text of the court’s decision, other-
wise, if it is stated only in the dispositive portion of the
decision, the same shall be disallowed on appeal.’
(Policarpio vs. Court of Appeals, et al., G.R. No. 94563, March
5, 1991). A cursory reading of the trial court’s decision
shows that the award of attorney’s fees was stated only
once — “As for attorney’s fees, the court finds that the
amount of P20,000.00 including litigation expenses are
reasonable” — just below the dispositive portion of the
decision which reads: “WHEREFORE judgment is hereby
rendered ordering the defendants jointly and severally
liable to pay the plaintiff the total sum of TWO HUN-
DRED THIRTEEN THOUSAND ONE HUNDRED
FORTY EIGHT PESOS (P213,148.00) by way of damages
and to pay the costs of this suit.” The trial court failed to
justify the payment of attorney’s fees by RCPI, there-
fore, the award of attorney’s fees as part of its liability
should be disallowed and deleted (RCPI et al. vs.
Rodriguez, G.R. No. 83768, February 28, 1990).
36. The settled rule is that the matter of attorney’s
fees cannot be mentioned only in the dispositive portion
of the decision. The same goes for the award of litiga-
tion expenses. They must be clearly explained and justi-

fied by the trial court in the body of its decision for the
general rule is that attorney’s fees and expenses of liti-
gation cannot be recovered in the absence of stipulation
(Sps. Samatra vs. De Parinas, G.R. No. 142958, April 24,
2002). The award of attorney’s fee is the exception rather
than the general rule. As such, it is necessary for the
court to make findings of facts and law that would bring
the case within the exception and justify the grant of
such award (Citibank, N.A. vs. Sps. Cabamongan, et al.,
G.R. No. 146918, May 2, 2006).
37. Reasonable attorney’s fees constitute a proper
element of damages in an action based upon wrongful
attachment. ‘. . . the more generally prevailing view is
that one against whom an attachment has been wrong-
ful sued out is entitled to recover reasonable counsel
fees incurred or expended in defending against such at-
tachment’ (7 C.J.S., 372, cited in Francisco, supra, p. 170).
And ‘in cases mentioned in Article 2208 (Civil Code)
attorney’s fees constitute a part of actual damages’ (PCIB
vs. Intermediate Appellate Court, G.R. No. 73610, April 19,
1991 citing Fores vs. Miranda, L-12103, March 4, 1959).
In all cases, the attorney’s fees and expenses of liti-
gation must be reasonable (Art. 2208, NCC, last par.).
38. Article III of the Labor Code and Rule VIII,
Sec. II, Book III of the Omnibus Rules Implementing the
Labor Code, provide that “[i] n cases of unlawful with-
holding of wages the culpable party may be assessed
attorney’s fees equivalent to ten percent of the amount
of wages recovered.’’
Subrogatory 39. If the plaintiff’s property has been insured,
right of and he has ‘received indemnity from the insurance com-
insurer pany for the injury or loss arising out of the wrong or
breach of contract complained of, the insurance com-
pany shall be subrogated to the rights of the insured
against the wrongdoer or the person who has violated
the contract. If the amount paid by the insurance com-
pany does not fully cover the injury or loss, the aggrieved
party shall be entitled to recover the deficiency from the
person causing the loss or injury (Article 2207, NCC).
141
CHAPTER 3
MORAL DAMAGES
1. Moral damages include physical suffering, Nature and

mental anguish, fright, serious anxiety, besmirched repu- concept
tation, wounded feelings, moral shock, social humilia-
tion, and similar injury. Though incapable of pecuniary
computation, moral damages may be recovered if they
are the proximate result of the defendant’s wrongful act
or omission (Art. 2217, NCC).
2. Moral damages are awarded to compensate
one for manifold injuries such as physical suffering, men-
tal anguish, serious, anxiety, besmirched reputation,
wounded feelings and social humiliation. These dam-
ages must be understood to be in the concept of grants,
not punitive or corrective in nature, calculated to com-
pensate the claimant for the injury suffered (del Mundo
vs. Court of Appeals, et al., G.R. No. 104576, January 20,
1995).
3. In the case of moral damages, recovery is
more an exception rather than the rule. Moral damages
are not punitive in nature but are designed to compen-
sate and alleviate the physical suffering, mental anguish,
fright, serious anxiety, besmirched reputation, wounded
feelings, moral shock, social humiliation, and similar
harm unjustly caused to a person. In order that an award
of moral damages can be aptly justified, the claimant
must be able to satisfactorily prove that he has suffered
such damages and that the injury causing it has sprung
from any of the cases listed in Articles 2219 and 2220 of
the Civil Code. Then, too, the damages must be shown
to be the proximate result of a wrongful act or omission.
The claimant must establish the factual basis of the dam-
ages and its causal tie with the acts of the defendant. In
141
fine, an award of moral damages would require, firstly,

evidence of besmirched reputation or physical, mental
or psychological suffering sustained by the claimant; sec-
ondly, a culpable act or omission factually established;
thirdly, proof that the wrongful act or omission of the
defendant is the proximate cause of the damages sus-
tained by the claimant; and fourthly, that the case is predi-
cated on any of the instances expressed or envisioned
by Article 2219 and Article 2220 of the Civil Code (PT &
T vs. Court of Appeals, G.R. No. 139268, September 3, 2002).
4. Moral damages are awarded to enable the in-
jured party to obtain means, diversions or amusements
that will serve to alleviate the moral suffering he/she
has undergone, by reason of the defendant’s culpable
action (Radio Communications vs. Rodriguez, supra). Its
award is aimed at restoration, as much as possible, of
the spiritual status quo ante (Makabali vs. Court of Appeals,
157 SCRA 253, 260, January 22, 1988).
5. Although incapable of pecuniary estimation,
the amount must somehow be proportional to and in
approximation of the suffering inflicted. Moral damages
are not intended to impose a penalty to the wrongdoer,
neither to enrich the claimant at the expense of the de-
fendant. There is no hard-and-fast rule in determining
what would be a fair and reasonable amount of moral
damages, since each case must be governed by its own
peculiar facts. Trial courts are given discretion in deter-
mining the amount, with the limitation that it should
not be palpably and scandalously excessive (Lamis vs.
Ong, G.R. No. 148923, August 11, 2005).
Requirements 6. The rule is settled that moral damages can-
for the grant not be awarded in the absence of a wrongful act or omis-
of moral sion or fraud or bad faith (R & B Surety & Insurance Co.,
damages
v. Intermediate Appellate Court, 129 SCRA 736; and Siasat
v. Intermediate Appellate Court, 139 SCRA 238).
7. In order that moral damages may be awarded,
there must be pleading and proof of moral suffering, men-
tal anguish, fright and the like (Congregation of the Reli-
gious of the Virgin Mary vs. Court of Appeals, et al., G.R. No.
126363, June 26, 1998). This is so because moral dam-
CHAPTER 3 143
MORAL DAMAGES
ages, though incapable of pecuniary estimation, are in

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

ages, the plaintiff must ascertain, in his estimation, the
sums he wants, and the sums required to determine the
amount of docket and other fees (Gregorio, et al. vs. Ange-
les, et al., G.R. No. 85847, December 21, 1989).
11. There is no hard and fast rule in the determi-
nation of what would be a fair amount of moral dam-
ages, since each case must be governed by its own pecu-
liar circumstances (Filinvest Credit Corporation vs. IAC,
166 SCRA 155).
12. In the adjudication of moral damages, the sen-
timental value of property, real or personal, may be con-
sidered (Art. 2218, NCC).
Instances 13. Moral damages may be recovered in the fol-
where moral lowing and analogous cases: (1) A criminal offense re-
damages may sulting in physical injuries; (2) Quasi-delicts causing physi-
be recovered
cal injuries; (3) Seduction, abduction, rape, or other las-
civious acts; (4) Adultery or concubinage; (5) Illegal or
arbitrary detention or arrest; (6) Illegal search; (7) Libel,
slander or any other form of defamation; (8) Malicious
prosecution; (9) Acts mentioned in Article 309; (10) Acts
and actions referred to in Articles 21, 26, 27, 28, 29, 30,
32, 34, and 35 (Art. 2219, NCC).
Seduction 14. The “seduction” contemplated in Article 2219
of the New Civil Code as one of the cases where moral
damages may be recovered, is the crime punished as
such in Articles 337 and 338 of the Revised Penal Code.
Where a woman, who was an insurance agent and former
high school teacher, around 36 years of age and approxi-
mately 10 years older than the man, “overwhelmed by
her love” for a man approximately 10 years younger
than her, had intimate relations with him, because she
“wanted to bind” him “by having a fruit of their en-
gagement even before they had the benefit of clergy,” it
cannot be said that he is morally guilty of seduction
(Hermosisima vs. Court of Appeals, et al., G.R. No. L-14628,
Quasi-delict 15. Article 2219(2) specifically allows moral dam-
ages to be recovered for quasi-delicts, provided that the act
or omission caused physical injuries. There can be no
CHAPTER 3 145
MORAL DAMAGES
recovery of moral damages unless the quasi-delict resulted

in physical injury (Quezon City Gov’t., et al. vs. Dacara,
G.R. No. 150304, June 15, 2005).
16. Recent case law fixes the amount of moral Rape
damages in crime of rape to P75,000.00, in addition to
civil indemnity in like amount (People vs. Gregorio Corpuz
Y Espiritu, G.R. No. 168101, February 13, 2006, En Banc).
17. The parents of the female seduced, abducted,
raped, or abused may also recover moral damages (Art.
2219, NCC).
18. As for moral damages in crimes of defama- Defamation
tion, the Supreme Court ratiocinated in this wise: “Ev-
ery man has a right to build, keep and be favored with a
good name. This right is protected by law with the rec-
ognition of slander and libel as actionable wrongs,
whether as criminal offenses or tortious conduct.”
(Brillante vs. Court of Appeals, et al., G.R. No. 118757 &
121571, October 19, 2004).
19. Defamation, which includes libel and slan-
der, means the offense of injuring a person’s character,
fame or reputation through false and malicious state-
ments. It is that which tends to injure reputation or to
diminish the esteem, respect, good will or confidence in
the plaintiff or to excite derogatory feelings or opinions
about the plaintiff. It is the publication of anything which
is injurious to the good name or reputation of another or
tends to bring him into disrepute. Defamation is an in-
vasion of a relational interest since it involves the opin-
ion which others in the community may have, or tend to
have, of the plaintiff. It must be stressed that words which
are merely insulting are not actionable as libel or slan-
der per se, and mere words of general abuse however
opprobrious, ill-natured, or vexatious, whether written
or spoken, do not constitute a basis for an action for
defamation in the absence of an allegation for special
damages. The fact that the language is offensive to the
plaintiff does not make it actionable by itself (MVRS
Publications, et al vs. Islamic Da’wah Council of the Phil, et
al., G.R. No. 135306, January 28, 2003).
20. Libel is defined in Article 353 of the Revised

Penal Code as “a public and malicious imputation of a
crime, or of a vice or defect, real or imaginary, or any act
or omission, condition, status, or circumstance tending
to cause the dishonor, discredit, or contempt of a natural
or juridical person, or to blacken the memory of one
who is dead.” For an imputation then to be libelous, the
following requisites must concur: (a) it must be defama-
tory; (b) it must be malicious; (c) it must be given pub-
licity; and (d) the victim must be identifiable.
21. Any of the imputations covered by Article
353 is defamatory and, under the general rule laid down
in Article 354, every defamatory imputation is presumed
to be malicious, even if it be true, if no good intention
and justifiable motive for making it is shown. There is
malice when the author of the imputation is prompted
by personal ill-will or spite and speaks not in response
to duty but merely to injure the reputation of the person
who claims to have been defamed. Truth then is not a
defense, unless it is shown that the matter charged as
libelous was made with good motives and for justifiable
ends.
22. Malice is not presumed and must, therefore,
be proved, under the following exceptions provided for
in Article, 354, viz.: “1. A private communication made
by any person to another in the performance of any le-
gal, moral or social duty; and 2. A fair and true report,
made in good faith, without any comments or remarks,
of any judicial, legislative or other official proceedings
which are not of confidential nature, or of any state-
ment, report or speech delivered in said proceedings, or
of any other act performed by public officers in the exer-
cise of their functions.” The privileged character of these
communications is not absolute, but merely qualified
since they could still be shown to be malicious by proof
of actual malice or malice in fact. The burden of proof in
this regard is on the plaintiff or the prosecution (del
Mundo vs. Court of Appeals, G.R. No. 104576, January 20,
1995).
23. Privileged matters may be absolute or quali-
fied. Absolutely privileged matters are not actionable
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MORAL DAMAGES
regardless of the existence of malice in fact. In abso-

lutely privileged communications, the mala or bona fides
of the author is of no moment as the occasion provides
an absolute bar to the action. Examples of these are
speeches or debates made by Congressmen or Senators
in the Congress or in any of its committees. On the other
hand, in qualifiedly or conditionally privileged commu-
nications, the freedom from liability for an otherwise
defamatory utterance is conditioned on the absence of
express malice or malice in fact. The second kind of privi-
lege, in fine, renders the writer or author susceptible to
a suit or finding of libel provided the prosecution estab-
lished the presence of bad faith or malice in fact. To this
genre belongs “private communications” and “fair and
true report without any comments or remarks” falling
under and described as exceptions in Article 354 of the
Revised Penal Code (GMA Network, Inc. [formerly known
as “Republic Broadcasting System, Inc.”] and Rey Vidal vs.
Bustos, et al., G.R. No. 146848, October 17, 2006).
24. Note needs to be taken, however, that “the Doctrine of
enumeration under Art. 354 is not an exclusive list of fair comment
qualifiedly privileged communications since fair com-
mentaries on matters of public interest are likewise privi-
leged. Fair commentaries on matters of public interest
are privileged and constitute a valid defense in an ac-
tion for libel or slander. The doctrine of fair comment
means that while in general every discreditable imputa-
tion publicly made is deemed false, because every man
is presumed innocent until his guilt is judicially proved,
and every false imputation is deemed malicious, never-
theless, when the discreditable imputation is directed
against a public person in his public capacity, it is not
necessarily actionable. In order that such discreditable
imputation to a public official may be actionable, it must
either be a false allegation of fact or a comment based on
a false supposition. If the comment is an expression of
opinion, based on established facts, then it is immaterial
that the opinion happens to be mistaken, as long as it
might reasonably be inferred from the facts (Borjal vs.
Court of Appeals, et al, G.R. No. 126466, January 14, 1999).
25. In New York Times v. Sullivan, the then City
Commissioner L. B. Sullivan of Montgomery, Alabama,
sued New York Times for publishing a paid political

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

leged and remain libelous per se (Filipinas Broadcasting
Network vs. Ago Medical and Educ. Center- Bicol Christian
College of Medicine, et al., G.R. No. 141994, January 17,
2005).
27. A person who, by his accomplishments, fame, Public figure
mode of living, or by adopting a profession or calling
which gives the public a legitimate interest in his do-
ings, his affairs and his character, has become a ‘public
personage.’ He is, in other words, a celebrity. Obviously,
to be included in this category are those who have
achieved some degree of reputation by appearing be-
fore the public, as in the case of an actor, a professional
baseball player, a pugilist, or any other entertainer. The
list is, however, broader than this. It includes public of-
ficers, famous inventors and explorers, war heroes and
even ordinary soldiers, infant prodigy, and no less a per-
sonage than the Great Exalted Ruler of the lodge. It in-
cludes, in short, anyone who has arrived at a position
where the public attention is focused upon him as a per-
son. (Ayer Production Pty, Ltd. vs. Capulong, G.R. Nos.
82380 and 82398, 29 April 1988, 160 SCRA 861.) As to
them, “the interest of society and the maintenance of
good government demand a full discussion of public
affairs. Complete liberty to comment on the conduct of
public men is a scalpel in the case of free speech. The
sharp incision of its probe relieves the abscesses of
officialdom. Men in public life may suffer under a hos-
tile and unjust accusation; the wound may be assuaged
by the balm of a clear conscience. A public official must
not be too thin-skinned with reference to comments upon
his official acts.” [US vs. Bustos, 37 Phil. 731 (1918)].
28. A newspaper or broadcaster publishing defa-
matory falsehoods about an individual who is neither a
public official nor a public figure may not claim a con-
stitutional privilege against liability, for injury inflicted,
even if the falsehood arose in a discussion of public in-
terest (Phil. Journalists, Inc. et al. vs. Thoenen, G.R. No.
143372, December 13, 2005).
29. Publication means “to make public; to make
known to people in general; to bring before the public.”
Specifically put, publication in the law of libel means

the making known of the defamatory matter, after it has
been written, to some person other than the person of
whom it is written. If the statement is sent straight to a
person of whom it is written there is no publication of it.
The reason for this is that [a] communication of the defa-
matory matter to the person defamed cannot injure his
reputation though it may wound his self-esteem. A man’s
reputation is not the good opinion he has of himself, but
the estimation in which others hold him (Alonzo vs. Court
of Appeals, G.R. No. 110088, February 1, 1995).
Group libel 30. In Arcand v. The Evening Call Publishing Com-
pany, the United States Court of Appeals held that one
guiding principle of group libel is that defamation of a
large group does not give rise to a cause of action on the
part of an individual unless it can be shown that he is
the target of the defamatory matter. Declarations made
about a large class of people cannot be interpreted to
advert to an identified or identifiable individual. Absent
circumstances specifically pointing or alluding to a par-
ticular member of a class, no member of such class has a
right of action without at all impairing the equally de-
manding right of free speech and expression, as well as
of the press, under the Bill of Rights. If the group is a
very large one, then the alleged libelous statement is
considered to have no application to anyone in particu-
lar, since one might as well defame all mankind. Not
only does the group as such have no action; the plaintiff
does not establish any personal reference to himself. At
present, modern societal groups are both numerous and
complex. The same principle follows with these groups:
as the size of these groups increases, the chances for
members of such groups to recover damages on tortious
libel become elusive. This principle is said to embrace
two (2) important public policies: first, where the group
referred to is large, the courts presume that no reason-
able reader would take the statements as so literally ap-
plying to each individual member; and second, the limi-
tation on liability would satisfactorily safeguard free-
dom of speech and expression, as well as of the press,
effecting a sound compromise between the conflicting
fundamental interests involved in libel cases (cf., MVRS
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MORAL DAMAGES
Publications, et al. vs. Islamic Da’wah Council of the Phil, et

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

ages in case of libel, slander or any other form of defa-
mation. This provision of law establishes the right of an
offended party in a case for oral defamation to recover
from the guilty party damages for injury to his feelings
and reputation. The offended party is likewise allowed
to recover punitive or exemplary damages (Occena vs.
Icamina, et al., G.R. No. 82146, January 22, 1990).
33. Allegations and averments in a lawyer ’s
pleadings are absolutely privileged as long as they are
relevant or pertinent to the issues (See Montenegro v.
Medina, 73 Phil. 602 [1942]). The test to break through
the protective barrier of an absolutely privileged com-
munication is not “bona fides” but relevance. Thus,
where the allegations made in the complaint for disbar-
ment are not claimed to be irrelevant, the complaint for
disbarment is still covered by the privilege and may not
be the basis of a damage suit arising from libel (Ponce vs.
Legaspi, G.R. No. 79184, May 6, 1992).
34. Pursuant to Article 26, paragraph (4), to the
effect that although it may not constitute a criminal of-
fense, “vexing or humiliating another on account of his
religious beliefs, lowly station in life, place of birth, physi-
cal defect, or other personal condition,” can give rise to
a cause of action for damages, or consonantly with Ar-
ticle 33 which provides that in case of defamation, a civil
complaint for damages, entirely separate and distinct
from the criminal case, may be brought by the injured
party. Both civil actions are based on tort liability under
common law and require the plaintiff to establish that
he has suffered personal damage or injury as a direct
consequence of the defendant’s wrongful conduct. In
fine, it must be shown that the act complained of is vexa-
tious or defamatory of, and as it pertains to, the claim-
ant, thereby humiliating or besmirching the latter’s dig-
nity and honor (MVRS Publications, et al vs. Islamic Da’wah
Council of the Phil, et al. supra).
Malicious 35. It is a settled principle that “[w]hen the ac-
prosecution tion is filed in good faith there should be no penalty on
the right to litigate. (Espiritu v. Court of Appeals, 137
SCRA 50).” To support, thus, an action for malicious
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MORAL DAMAGES
prosecution, the plaintiff must prove the fact of prosecu-

tion, that the defendant was himself the prosecutor or
that he instigated its commencement; that it finally ter-
minated in his acquittal; that in bringing it the prosecu-
tor acted without probable cause, and that he was actu-
ated by legal malice, that is, by improper and sinister
motives (Lagman, et al. vs. Intermediate Appellate Court, et
al., G.R. No. L-72281, October 28, 1998). The statutory rec-
ognition of an action for damages based on malicious
prosecution (false accusation or denuncia falsa) is found
in Article 2219(8) of the Civil Code which allows recov-
ery of moral damages for malicious prosecution. Article
21 and 2176 of the same Code may also be invoked to
justify the action (supra).
36. The term malicious prosecution has been de-
fined in various ways. In American jurisdiction, it is de-
fined as: “One begun in malice without probable cause
to believe the charges can be sustained (Eustace v.
Dechter, 28 Cal. App. 2d. 706, 83 P. 2d. 525). Instituted
with intention of injuring defendant and without prob-
able cause, and which terminates in favor of the person
prosecuted. For this injury an action on the case lies,
called the action of malicious prosecution (Hicks v.
Brantley, 29 S.E. 459, 102 Ga. 264., Eggett v. Allen, 96
N.W. 803 119 Wis. 625).” In the Philippines, it has been
defined as: “An action for damages brought by one
against whom a criminal prosecution, civil suit, or other
legal proceeding has been instituted maliciously and
without probable cause, after the termination of such
prosecution, suit, or other proceeding in favor of the
defendant therein. The gist of the action is the putting of
legal process in force, regularly, for the mere purpose of
vexation or injury’’ (Drilon vs. Court of Appeals, et al.,
G.R. No. 107019, March 20, 1997).
37. The term “malicious prosecution” has been
defined as “an action for damages brought by one against
whom a criminal prosecution, civil suit, or other legal
proceeding has been instituted maliciously and without
probable cause, after the termination of such prosecu-
tion, suit, or other proceeding in favor of the defendant
therein.” To constitute “malicious prosecution,” there
must be proof that the prosecution was prompted by a

sinister design to vex or humiliate a person, and that it
was initiated deliberately by the defendant knowing that
his charges were false and groundless. Concededly, the
mere act of submitting a case to the authorities for pros-
ecution does not make one liable for malicious prosecu-
tion (Yasona vs. Ramos, et al., G.R. No. 156339, October 6,
2004).
38. It may be asked, who then may be held liable
for malicious prosecution? Under American law, the de-
fendant in the action for malicious prosecution may be
the the prosecutor, or the one who instigated its com-
mencement. Malicious prosecution may either be civil
or criminal. But both classes of cases require substan-
tially the same essentials. Malice is essential to the main-
tenance of an action for malicious prosecution and not
merely to the recover of exemplary damages. But malice
alone does not make one liable for malicious prosecu-
tion, where probable cause is shown, even where it ap-
pears that the suit was brought for the mere purpose of
vexing, harassing and injuring his adversary. In other
words, malice and want of probable cause must both
exist in order to justify the action. (Please see Rehabilita-
tion Finance Corp. v. Koh, L-15512, Feb. 28, 1962, 4 SCRA
535, 540).”
39. As thus defined, the fact of termination of
the criminal prosecution, civil suit or legal proceeding
maliciously filed and without probable cause, should
precede the complaint for malicious prosecution (Andres
Lao vs. Court of Appeals, et al., G.R. No. 47013, 60647 &
60958-59, February 17, 2000).
40. Malice is essential to the maintenance of an
action for malicious prosecution and not merely to the
recovery of exemplary damages. But malice alone does
not make one liable for malicious prosecution, where
probable cause is shown, even where it appears that the
suit was brought for the mere purpose of vexing, ha-
rassing and injuring his adversary. In other words mal-
ice and want of probable cause must both exist in order
to justify the action. Probable cause is the existence of
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MORAL DAMAGES
such facts and circumstances as would excite the belief,

in a reasonable mind, acting on the facts within the
knowledge of the prosecutor, that the person charged
was guilty of the crime (or in this case, the wrongdoing)
for which he was prosecuted. Where there is probable
cause, the charge of malicious prosecution is then de-
feated, regardless of considerations of malice (cf., Ponce
vs. Legaspi, et al., G.R. No. 79184, May 6, 1992).
41. The elements of want of probable cause and
malice must simultaneously exist; otherwise, the pres-
ence of probable cause signifies, as a legal consequence,
the absence of malice. On these, there must be proof that
the prosecution was prompted by a sinister design to
vex and humiliate a person, and that it was initiated
deliberately knowing that the charge was false and base-
less to entitle the victim to damages (Martires vs. Cokieng,
42. Generally, malicious prosecution refers to un-
founded criminal actions and has been expanded to in-
clude unfounded civil suits just to vex and humiliate the
defendant despite the absence of a cause of action or
probable cause (Equitable Banking Corporation v. Interme-
diate Appellate Court, 133 SCRA 13B [1984]). The founda-
tion of an action for malicious prosecution is an original
proceeding, judicial in character. A disbarment proceed-
ing being judicial in character may therefore be the basis
for a subsequent action for malicious prosecution (Ponce
vs. Legaspi, et al., G.R. No. 79184, May 6, 1992).
43. “To maintain an action for damages based on
malicious prosecution, three elements must be present:
First, the fact of the prosecution and the further fact that
the defendant was himself the prosecutor, and that the
action was finally terminated with an acquittal; second,
that in bringing the action, the prosecution acted with-
out probable cause; and third, the prosecutor was actu-
ated or impelled by legal malice” (Ferrer vs. Vergara, 52
O.G. 291).
44. Where one is a mere witness, he cannot be
held liable for malicious prosecution (Lao vs. Court of
Appeals, G.R. No. 82808, July 11, 1991).
45. To constitute malicious prosecution, there

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

son and justice. In order that a person may be made
liable to the payment of moral damages, the law requires
that his act be wrongful. The adverse result of an action
does not per se make the act wrongful and subject the
actor to the payment of moral damages. The law could
not have meant to impose a penalty on the right to liti-
gate; such right is so precious that moral damages may
not be charged on those who may exercise it errone-
ously. For these the law taxes costs’’ (Barreto vs. Arevalo,
et al. No. L-7748, Aug. 27, 1956, 52 O.G., No. 13, p. 5818).
48. As for the award of damages under Articles Article 19, 20
19, 20 and 21 of the Civil Code, it was held that “[t]he and 21
elements of abuse of right under Article 191 are the fol-
lowing: (1) the existence of a legal right or duty, (2) which
is exercised in bad faith, and (3) for the sole intent of
prejudicing or injuring another. Article 20 speaks of the
general sanction for all other provisions of law which
do not especially provide for their own sanction; while
Article 21 deals with acts contra bonus mores, and has
the following elements: (1) there is an act which is legal,
(2) but which is contrary to morals, good custom, public
order, or public policy, and (3) and it is done with intent
to injure. Verily then, malice or bad faith is at the core of
Articles 19, 20, and 21.” (Albenson Enterprises Corp. v.
Court of Appeals, 217 SCRA 16, 25 [1993]).
49. The report of the Code Commission states
thus — “. . . Fully sensible that there are countless gaps
in the statutes, which leave so many victims of moral
wrongs helpless, even though they have actually suf-
fered material and moral injury, the Commission has
deemed it necessary, in the interest of justice, to incorpo-
rate in the proposed Civil Code the following rule: ‘ART.
23. Any person who wilfully causes loss or injury to
another in a manner that is contrary to morals, good
1
The matter is discussed under Chapter 7 of Torts (Quasi-delict)
as specie of special torts.

the damage.’’’ (Patricio vs. Leviste, G.R. No. 51832, April
26, 1989).
50. The act of hitting a person on the face is con-
trary to morals and good customs (Patricio vs. Leviste,
supra).
51. Indeed, bigamy is not one of those specifi-
cally mentioned in Article 2219 of the Civil Code in which
the offender may be ordered to pay moral damages to
the private complainant/offended party. Nevertheless,
the petitioner is liable to the private complainant for
moral damages under Article 2219 in relation to Articles
19, 20 and 21 of the Civil Code (Manuel vs. People, G.R.
No. 165842, November 29, 2005).
Breach of 52. Where a man’s promise to marry is in fact the
promise to proximate cause of the acceptance of his love by a woman
marry and his representation to fulfill that promise thereafter
becomes the proximate cause of the giving of herself
unto him in a sexual congress, and that he had, in real-
ity, no intention of marrying her and that the promise
was only a subtle scheme or deceptive device to entice
or inveigle her to accept him and to obtain her consent
to the sexual act, the act could justify the award of dam-
ages pursuant to Article 21 not because of such promise
to marry but because of the fraud and deceit behind it
and the willful injury to her honor and reputation which
followed thereafter. It is essential, however, that such
injury should have been committed in a manner con-
trary to morals, good customs or public policy (Baksh vs.
Court of Appeals, supra).
53. Where it was that there was “fraudulent and
deceptive protestations of love for and promise to marry
plaintiff that made her surrender her virtue and wom-
anhood to him and to live with him on the honest and
sincere belief that he would keep said promise, and it
was likewise these fraud and deception on appellant’s
part that made plaintiff ’s parents agree to their
daughter’s living-in with him preparatory to their sup-
posed marriage, in short, the private respondent surren-
dered her virginity, the cherished possession of every
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MORAL DAMAGES
single Filipina, not because of lust but because of moral

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

death of a passenger results from a breach of carriage
(Victory Liner vs. Gammad, et al., supra).
57. Although the rule is that moral damages
predicated upon a breach of contract of carriage may
only be recoverable in instances where the mishap re-
sults in the death of a passenger, or where the carrier is
guilty of fraud or bad faith, there are situations where
the negligence of the carrier is so gross and reckless as
to virtually amount to bad faith, in which case, the pas-
senger likewise becomes entitled to recover moral dam-
ages. (Singson vs. Court of Appeals, et al., G.R. No. 119995,
November 18, 1997) Bad faith, in this context, includes
gross, but not simple, negligence (FEBTC vs. Court of
Appeals, et al., G.R. No. 108164, February 23, 1995).
58. In view of Art. 2220 of the Civil Code, it has
been held that “in culpa contractual or breach of contract,
moral damages may be recovered when the defendant
acted in bad faith or was guilty of gross negligence
(amounting to bad faith) or in wanton disregard of his
contractual obligation.” Since the law presumes good
faith, the person claiming moral damages must prove
bad faith or ill motive by clear and convincing evidence
(MOF Company vs. Enriquez, G.R. No. 149280, May 9,
2002).
59. In the cases of Lopez v. Pan American World
Airways, Zulueta v. Pan American World Airways, Inc. and
Ortigas Jr. v. Lufthansa German Airlines, the Court ruled
that . . . [W]hen it comes to contracts of common car-
riage, inattention and lack of care on the part of the car-
rier resulting in the failure of the passenger to be accom-
modated in the class contracted for amounts to bad faith
or fraud which entitles the passenger to the award of
moral damages in accordance with Article 2220 of the
Civil Code. In Lopez despite sufficient time — one month
— to inform the passengers of what had happened to
their booking, the airline agent intentionally withheld
that information from them. In Zulueta, the passenger
was deliberately off-loaded after being gravely insulted
during an altercation. And in Ortigas, the passenger was
intentionally downgraded in favor of a European. But
CHAPTER 3 161
MORAL DAMAGES
where there is no showing that the breach of contract

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

Calderon, G.R. No. 156168, December 14, 2004).
62. For the wanton and reckless failure and ne-
glect to timely check and remedy the video tape recorder
such that no pictures registered after the few snatches of
the bride, the Supreme Court ruled moral damages are
due. The failure to record on videotape the wedding
celebration constitutes malicious breach of contract as
well as gross negligence (Herbosa, et al. vs. Court of Ap-
peals, et al., G.R. No. 119086 & 119087, January 25, 2002).
“In our society, the importance of a wedding ceremony
cannot be underestimated as it is the matrix of the fam-
ily and, therefore, an occasion worth reliving in the suc-
ceeding years. Considering the sentimental value of the
tapes and the fact that the event therein recorded — a
wedding which in our culture is a significant milestone
to be cherished and remembered — could no longer be
reenacted and was lost forever,” the award of moral dam-
ages is in order (cf., Go v. Court of Appeals, 339 Phil. 136,
138-139 (1997).
63. So in breach of contract, the damages recov-
erable maybe (a) Indemnity for Death. Art. 1764 of the
Civil Code, in relation to Art. 2206 thereof, provides for
the payment of indemnity for the death of passengers
caused by the breach of contract of carriage by a com-
mon carrier. Initially fixed in Art. 2206 at P3,000.00, the
amount of the said indemnity for death has through the
years been gradually increased in view of the declining
value of the peso. It is presently fixed at P50,000.00; (b)
Actual Damages. Art. 2199 provides that “except as pro-
vided by law or by stipulation, one is entitled to an ad-
equate compensation only for such pecuniary loss suf-
fered by him as he has duly proved.”; (c) Moral Dam-
ages. Under Art. 2206, the “spouse, legitimate and ille-
gitimate descendants and ascendants of the deceased
may demand moral damages for mental anguish by rea-
son of the death of the deceased.”; (d) Exemplary Dam-
ages. Art. 2232 provides that “in contracts and quasi-
contracts, the court may award exemplary damages if
the defendant acted in a wanton, fraudulent, reckless,
oppressive, or malevolent manner.”; (e) Attorney’s Fees.
CHAPTER 3 163
MORAL DAMAGES
Pursuant to Art. 2208, attorney’s fees may be recovered

when, as in the instant case, exemplary damages are
awarded; (f) Compensation for Loss of Earning Capac-
ity. Art. 1764 of the Civil Code, in relation to Art. 2206
thereof, provides that in addition to the indemnity for
death arising from the breach of contract of carriage by
a common carrier, the “defendant shall be liable for the
loss of the earning capacity of the deceased, and the
indemnity shall be paid to the heirs of the latter.” (For-
tune Express vs. Court of Appeals, G.R. No. 119756, March
18, 1999).
64. Note, however, that a contractual breach may
come within the purview of Article 21 in relation to Ar-
ticle 2217 and Article 2219 of the Civil Code such as in
American Express International, Inc., vs. Intermediate
Appellate Court (167 SCRA 209) and Bank of Philippine
Islands vs. Intermediate Appellate Court (206 SCRA 408).
But “Article 21 of the Code, it should be observed, con-
templates a conscious act to cause harm. Thus, even if
we are to assume that the provision could properly re-
late to a breach of contract, its application can be war-
ranted only when the defendant’s disregard of his con-
tractual obligation is so deliberate as to approximate a
degree of misconduct certainly no less worse than fraud
or bad faith.” (FEBTC vs. Court of Appeals, et al., supra)
65. The term “analogous cases,” referred to in Analogous
Article 2219, following the ejusdem generis rule, must be cases
held similar to those expressly enumerated by the law.
(Expertravel & Tours, Court of Appeals, et al., G.R. No.
130030, June 25, 1999).
66. The writ of attachment based on a false affi-
davit was improperly or irregularly issued. An action to
recover damages from the attachment plaintiff, for the
wrongful issuance and levy of attachment is identical
with or analogous to the ordinary action for malicious
prosecution (Lazatin vs. Twaño, L-12736, July 31, 1961, 2
SCRA 842). In view thereof, moral damages may be re-
covered by defendant [Art. 2219 (B), Civil Code] [PCIB
vs. Intermediate Appellate Court, G.R. No. 73610, April 19,
1991].
67. Moral damages is also recoverable in illegal

termination cases. Where “complainants’ dismissal was
carried out swiftly and surreptitiously to the detriment
and prejudice of complainants’ tenurial rights, such act
smacks of highhandedness and deserves no place in a
school that teaches respect and instills moral values and
human rights to the future citizens of this country.”
(Colegio del Sto Nino, et al. vs. NLRC, et al, G.R. No. 96301,
May 28, 1991). Moral damages are recoverable only where
the dismissal of the employee was attended by bad faith
or fraud, or constituted an act oppressive to labor, or
was done in a manner contrary to morals, good customs
or public policy (Spartan Security & Detective Agency vs.
NLRC, et al., G.R. No. 90693, September 3, 1992).
68. The crime of kidnapping and failure to re-
turn a minor under Article 270 of the Revised Penal Code
is clearly analogous to illegal and arbitrary detention or
arrest. The award of moral damages is justified (cf., People
vs. Bernardo, G.R. No. 144316, March 11, 2002).
69. In one case, the Supreme Court also sustained
the award of moral damages in favor of one who suf-
fered a permanent scar at her forehead and the loss of
her right eye which undoubtedly gave her mental an-
guish, wounded feelings and shock. The psychological
effect as regards the scar on her forehead and her false
eye must have devastated her considering that women
in general are fastidious on how they look. More impor-
tant, however, was the loss of vision of her right eye
which was severely injured as a result of the accident.
Since the accident, the plaintiff in the case (Linda
Navarette) had to contend with the loss of her eyesight
on her right eye which necessarily hampers her not only
physically but also professionally for the rest of her life.
Before the accident, Linda Navarette who is a home
economist by profession was doing well in her career. A
graduate of the University of the Philippines with the
degree of Home Economics, she is the Assistant-Vice
President as well as Resident Manager of Club Solviento
receiving a gross income of P10,000.00 a month. Simul-
taneously with her work at Club Solviento, she served
as Food Consultant of Food City where she received a
CHAPTER 3 165
MORAL DAMAGES
monthly salary of P7,000.00. She, however, had to give

up her consultancy job after the accident not only be-
cause of her prolonged absences but because of the physi-
cal handicap she suffered.
Nevertheless, when Linda claimed for moral dam-
ages for the alleged loss of her boyfriend by reason of
the accident, the Supreme Court denied the claim. The
High Court ruled: “No doubt, the loss of her boyfriend
after the accident added to her mental and emotional
sufferings and psychologically affected and disturbed
her. [But] there is no clear evidence on record to show
that her boyfriend left her after the accident due to her
physical injuries. He may have left her even if she did
not suffer the slightest injury. The reasons for the break-
up of a courtship are too many and too complicated
such that they should not form the basis of damages
arising from a vehicular accident. Moreover, granting
that her boyfriend left her due to her physical injuries,
we still find no legal basis for the award of moral dam-
ages in favor of Navarette because of the loss of a boy-
friend. Article 2719 of the New Civil Code quoted ear-
lier enumerates cases wherein moral damages may be
granted. Loss of a boyfriend as a result of physical inju-
ries suffered after an accident is not one of them. Nei-
ther can it be categorized as an analogous case” (Mayo
vs. People, G.R. No. 91201, December 5, 1991).
70. There, too, is a time-honored rule that an ac-
tion for breach of promise to marry has no standing in
the civil law, apart from the right to recover money or
property advanced by the plaintiff upon the faith of such
promise. (see Hermosisima vs. Court of Appeals, 109 Phil.
629 [1960]).
Generally, therefore, a breach of promise to marry
per se is not actionable. The exception is where the plain-
tiff has actually incurred expenses for the wedding and
the necessary incidents thereof. Also, where the acts of
one in forcibly abducting another and having carnal
knowledge with her against her will, and thereafter
promising to marry her in order to escape criminal li-
ability, only to thereafter renege on such promise after
cohabiting with her for twenty-one days, irremissibly
constitutes acts contrary to morals and good customs.

These are grossly insensate and reprehensible transgres-
sions which indisputably warrant and abundantly jus-
tify the award of moral and exemplary damages, pursu-
ant to Article 21, in relation to paragraphs 3 and 10,
Article 2219, and Articles 2229 and 2234 of the Civil Code
(Bunag, Jr. vs. Court of Appeals, G.R. No. 101749, July 10,
1992).
71. Also, moral damages are not to be awarded
in actions for nullity of marriage on ground of psycho-
logical incapacity. In Buenaventura vs. Buenaventura, G.R.
No. 127358, March 31, 2005, it was held that it is contra-
dictory to characterize acts as a product of psychologi-
cal incapacity, and hence beyond the control of the party
because of an innate inability, while at the same time
considering the same set of acts as willful. By declaring
a person as psychologically incapacitated, the possibil-
ity of awarding moral damages on the same set of facts
was negated. The award of moral damages should be
predicated, not on the mere act of entering into the mar-
riage, but on specific evidence that it was done deliber-
ately and with malice by a party who had knowledge of
his or her disability and yet willfully concealed the same.
For the same reason, since psychological incapacity
means that one is truly incognitive of the basic marital
covenants that one must assume and discharge as a con-
sequence of marriage, it removes the basis for the con-
tention that the one purposely deceived the other.
Moral dam- 72. In Mambulao Lumber Co. v. PNB, 130 Phil 366
ages in favor [1968], it was ruled that a corporation may recover moral
of corpora- damages if it “has a good reputation that is debased,
tion, general resulting in social humiliation.”
rule
But in ABS-CBN Broadcasting Corporation vs. Court
of Appeals, et al., G.R. No. 128690, January 21, 1999, the
said pronouncement was debunked as a mere obiter dic-
tum. Citing Prime White Cement Corp. v. Intermediate Ap-
pellate Court, 220 SCRA 103, 113-114 [1993]; LBC Express
Inc. v. Court of Appeals, 236 SCRA 602, 607 [1994]; Acme
Shoe, Rubber and Plastic Corp. v. Court of Appeals, 260 SCRA
714, 722 [1996], it was ruled that a corporation cannot be
awarded moral damages because “being an artificial per-
CHAPTER 3 167
MORAL DAMAGES
son and having existence only in legal contemplation, it

has no feelings, no emotions, no senses. It cannot, there-
fore, experience physical suffering and mental anguish
which can be experienced only by one having a nervous
system.” A juridical person is generally not entitled to
moral damages because, unlike a natural person, it can-
not experience physical suffering or such sentiments as
wounded feelings, serious anxiety, mental anguish or
moral shock (People v. Manero, Jr., G.R. Nos. 86883-85, 29
January 1993, 218 SCRA 85).
73. However, where the claim for moral damages Exception
falls under item 7 of Article 2219 of the Civil Code, moral
damages may be recovered. This provision expressly
authorizes the recovery of moral damages in cases of
libel, slander or any other form of defamation. Article
2219(7) does not qualify whether the plaintiff is a natu-
ral or juridical person. Therefore, a juridical person such
as a corporation can validly complain for libel or any
other form of defamation and claim for moral damages.
(Filipinas Broadcasting Network vs. Ago Medical and Educ.
Center-Bicol Christian College of Medicine, et al., supra)
CHAPTER 4
NOMINAL DAMAGES
Nature and 1. Under Article 2221 of the Civil Code, “nomi-

concept nal damages are adjudicated in order that a right of the
plaintiff, which has been violated or invaded by the de-
fendant, may be vindicated or recognized, and not for
the purpose of indemnifying the plaintiff for any loss
suffered by him.”
2. The court may award nominal damages in
every obligation arising from any source enumerated in
Article 1157, or in every case where any property right
has been invaded (Article 2222, Civil Code of the Philip-
pines).
3. Nominal damages are damages in name only
and not in fact. Where these are allowed, they are not
treated as an equivalent of a wrong inflicted but simply
in recognition of the existence of a technical injury (PNOC
Shipping and Transport Corp. vs. Court of Appeals, et al.,
G.R. No. 107518, October 8, 1998).
4. Articles 2221 and 2222 of the Civil Code make
it clear that nominal damages are not intended for in-
demnification of loss suffered but for the vindication or
recognition of a right violated or invaded. They are re-
coverable where some injury has been done but the
amount of which the evidence fails to show, the assess-
ment of damages being left to the discretion of the court
according to the circumstances of the case (Saludo, Jr., et
al. vs. Court of Appeals, et al., G.R. No. 95536, March 23,
1992).
5. In the absence of competent proof on the ac-
tual damage suffered, private respondent is “entitled to
nominal damages — which, as the law says, is adjudi-
168
CHAPTER 4 169
NOMINAL DAMAGES
cated in order that a right of the plaintiff, which has

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

nized, and not for the purpose of indemnifying the plain-
tiff for any loss suffered by him (Agabon vs. NLRC, et al.,
G.R. No. 158693, November 17, 2004).
8. In fixing the amount of nominal damages to
be awarded, the circumstances of each case should thus
be taken into account, such as, to exemplify, the (a) length
of service or employment of the dismissed employee;
(b) his salary or compensation at the time of the termi-
nation of employment vis-a-vis the capability of the em-
ployer to pay; (c) question of whether the employer has
deliberately violated the requirements for termination
of employment or has attempted to comply, at least sub-
stantially, therewith; and/or (d) reasons for the termina-
tion of employment (Dissent, Justice Vitug, Serrano vs.
NLRC, et al., G.R. No. 117040, January 27, 2000). Case law
presently fixes nominal damages at P30,000.00 (Chua vs.
NLRC, et al., G.R. No. 146780, March 11, 2005; Jaka Food
Processing Corp vs. Pacot, et al., G.R. No. 151378, March 28,
2005; PT & T Corp vs. NLRC, G.R. No. 147002, April 15,
2005; Philippine Pizza Inc. vs. Bungabong,G.R. No. 154315,
May 9, 2005; Amadeo Fishing Corp. et al. vs. Nierra, et al.,
G.R. No. 163099, October 4, 2005), although in San Miguel
Corporation vs. Aballa, et al., G.R. No. 149011, June 28, 2005,
the Supreme Court ordered payment of nominal dam-
ages of P50,000.00 to each of the employees.
9. Accordingly, (1) if the dismissal is based on a
just cause under Article 282 but the employer failed to
comply with the notice requirement, the sanction to be
imposed upon him should be tempered because the dis-
missal process was, in effect, initiated by an act imput-
able to the employee. In these instances, nominal dam-
ages is invariably fixed at P30,000.00; (2) if the dismissal
is based on an authorized cause under Article 283 but the
employer failed to comply with the notice requirement,
the sanction should be stiffer because the dismissal pro-
cess was initiated by the employer’s exercise of his man-
agement prerogative. The nominal damages is at
P50,000.00 (cf., Jaka Food Processing Corporation v. Pacot,
G.R. No. 151378, March 28, 2005, 454 SCRA 119).
10. Where an employer failed to serve a written
notice on the worker at least one (1) month before the
CHAPTER 4 171
NOMINAL DAMAGES
intended date of retrenchment, the Supreme Court

awarded the amount equivalent to one (1) month salary
of P6,500.00 as nominal damages to deter employers from
future violations of the statutory due process rights of
employees [Clarion Printing House, Inc. et al. vs. NLRC
(Third Division) et al., G.R. No. 148372, June 27, 2005].
11. The bank should not have allowed complete
strangers to take possession of the owner’s duplicate
certificate even if the purpose is merely for photocopy-
ing for a danger of losing the same is more than immi-
nent. They should be aware of the conclusive presump-
tion in Section 53. Such act constitutes manifest negli-
gence on the part of the bank which would necessarily
hold it liable for damages under Article 1170 and other
relevant provisions of the Civil Code. In the absence of
evidence, the damages that may be awarded may be in
the form of nominal damages (Heirs of Eduardo Manlapat
vs. Court of Appeals, et al., G.R. No. 125585, June 8, 2005).
12. Nominal damages are adjudicated in order
that a right of the plaintiff, which has been violated or
invaded by the defendant, may be vindicated or recog-
nized, and not for the purpose of indemnifying the plain-
tiff for any loss suffered by him. Where no right of peti-
tioner was violated or invaded, nominal damages can-
not be awarded (cf., Solid Homes, Inc. vs. Court of Appeals,
et al., G.R. No. 117501, July 8, 1997).
13. Also, “if no damages have actually occurred
there can be none to repair and the doctrine of nominal
damages is not applicable. Thus it has been often held
by the supreme court of Spain that a mere noncompli-
ance with the obligations of a contract is not sufficient to
sustain a judgment for damages. It must be shown that
damages actually existed (Decision of February 10, 1904.)
(Algarra vs. Sandejas, G.R. No. 8385, March 24, 1914).
14. The adjudication of nominal damages shall
preclude further contest upon the right involved and all
accessory questions, as between the parties to the suit,
or their respective heirs and assigns (Art. 2223, Civil Code).
CHAPTER 5
TEMPERATE DAMAGES
Nature and 1. Temperate or moderate damages, which are

concept more than nominal but less than compensatory dam-
ages, may be recovered when the court finds that some
pecuniary loss has been suffered but its amount can not,
from the nature of the case, be proved with certainty
(Art. 2224, Civil Code).
2. The Code Commission, in explaining the con-
cept of temperate damages under Article 2224, makes
the following comment: “In some States of the Ameri-
can Union, temperate damages are allowed. There are
cases where from the nature of the case, definite proof of
pecuniary loss cannot be offered, although the court is
convinced that there has been such loss. For instance,
injury to ones commercial credit or to the goodwill of a
business firm is often hard to show with certainty in
terms of money. Should damages be denied for that rea-
son? The judge should be empowered to calculate mod-
erate damages in such cases, rather than that the plain-
tiff should suffer, without redress from the defendant’s
wrongful act (Premiere Devt Bank vs. Court of Appeals, et
al., G.R. No. 159352, April 14, 2004).
3. Temperate damages may be allowed in cases
where from the nature of the case, definite proof of pe-
cuniary loss cannot be adduced, although the court is
convinced that there has been such loss (MBTC vs. Court
of Appeals, et al., G.R. No. 112576, October 26, 1994).
4. Thus, in cases where the amount of pecuni-
ary losses could, by their very nature, be established
with certainty, it is error to award temperate damages.
Where the trial court found that plaintiff suffered dam-
172
CHAPTER 5 173
TEMPERATE DAMAGES
ages in the form of wages for the hired workers for 22

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

appropriate. The amount given as temperate damages,
though to a certain extent speculative, should take into
account the cost of proper care (Ramos, et al. vs. Court of
Appeals, et al., G.R. No. 124354, December 29, 1999).
Instances 7. The trial court awarded P20,000 as actual
where damages, not supported by evidence on record. Actual
temperate damages can be given only to claims which are duly
damages are supported by receipts. Nonetheless, under Article 2224
adjudicated in lieu of actual damages, temperate damages may be
recovered as it has been shown that the victim’s family
suffered some pecuniary loss although the amount can-
not be proved with certainty. For this reason, the P20,000
award shall be for temperate damages. Further, conform-
ably with prevailing jurisprudence, moral damages is
increased to P50,000. (People vs. Orbes, G.R. No. 132743,
November 22, 2001).
8. Where the Court finds that some pecuniary
loss has been incurred but the amount cannot be proved
with certainty, such as for medical services and the wake,
temperate damages are appropriately given. Thus, in
People v. Solamillo, which involved robo con homicidio,
the computation in People v. Abrazaldo, fixing temper-
ate damages at P25,000.00, which is half the amount of
the indemnity ex delicto, was affirmed (People vs. Abes, et
al., G.R. No. 138937, January 20, 2004).
9. Temperate damages may be awarded if there
is no evidence of burial and funeral expenses. This is in
lieu of actual damages as it would be unfair for the
victim’s heirs to get nothing, despite the death of their
kin, for the reason alone that they cannot produce any
receipts. It was also ruled that temperate and actual dam-
ages are mutually exclusive in that both may not be
awarded at the same time, hence, no temperate dam-
ages may be granted if actual damages have already
been granted (People vs. Villanueva, G.R. No. 139177, Au-
gust 11, 2003).
10. Temperate or moderate damages may only
be given if the court finds that some pecuniary loss has
been suffered but that its amount cannot, from the na-
ture of the case, be proved with certainty. If the factual
CHAPTER 5 175
TEMPERATE DAMAGES
findings of the court are that there is failure to establish

such pecuniary loss or, if proved, cannot from their na-
ture be precisely quantified, temperate or moderate dam-
ages may not be awarded and the result comes down to
only a possible award of nominal damages (PT & T vs.
Court of Appeals, G.R. No. 139268, September 3, 2002).
11. It is wrong to award, along with nominal
damages, temperate or moderate damages. The two
awards are incompatible and cannot be granted concur-
rently. Nominal damages are given in order that a right
of the plaintiff, which has been violated or invaded by
the defendant, may be vindicated or recognized, and
not for the purpose of indemnifying the plaintiff for any
loss suffered by him (Art. 2221, New Civil Code; Manila
Banking Corp. vs. Intermediate Appellate Court, 131 SCRA
271). Temperate or moderate damages, which are more
than nominal but less than compensatory damages, on
the other hand, may be recovered when the court finds
that some pecuniary loss has been suffered but its amount
cannot, from the nature of the case, be proved with rea-
sonable certainty (Art. 2224, New Civil Code) (Citytrust
Banking Corporation vs. Intermediate Appellate Court, et al.,
G.R. No. 84281, May 27, 1994).
12. Temperate damages must be reasonable
under the circumstances (Art. 2225, Civil Code).
CHAPTER 6
LIQUIDATED DAMAGES
Liquidated 1. Liquidated damages are those that the par-

damages, ties agree to be paid in case of a breach. As worded, the
defined amount agreed upon answers for damages suffered by
the owner due to delays in the completion of the project.
Under Philippine laws, these damages take the nature
of penalties. A penal clause is an accessory undertaking
to assume greater liability in case of a breach. It is at-
tached to an obligation in order to ensure performance
(HL Carlos Construction vs. Marina Properties Corp., G.R.
No. 147614, January 29, 2004).
Nature and 2. In case liquidated damages have been agreed
concept upon, no proof of loss is necessary in order that such
liquidated damages may be recovered (Scott Consultants
& Resource Devt Corp., Inc. vs. Court of Appeals, et al., G.R.
No. 112916, March 16, 1995). The stipulation for liqui-
dated damages is intended to obviate controversy on
the amount of damages (Napocor vs. National Merchan-
dising Corporation, et al., G.R. No. L-33819 & L-33897, Oc-
tober 23, 1982).
3. Attorney’s fee is in the concept of actual dam-
ages (Fores vs. Miranda, 105 Phil., 266; 57 Off. Gaz., [44]
7938), except that when it is stipulated and therefore in
the form of liquidated damages no proof of pecuniary
loss is required (Article 2216) (Santiago vs. Dimayuga, G.R.
No. L-17883, December 30, 1961).
4. “The judge shall equitably reduce the pen-
alty when the principal obligation has been partly or
irregularly complied with by the debtor. Even if there
has been no performance, the penalty may also be re-
duced by the courts if it is iniquitous or unconscionable.”
(Art. 1229, Civil Code).
176
CHAPTER 6 177
LIQUIDATED DAMAGES
5. Liquidated damages, whether intended as an

indemnity or a penalty, shall be equitably reduced if
they are iniquitous or unconscionable (Art. 2227, Civil
Code).
6. Liquidated damages are identical to penalty
insofar as legal results are concerned. Intended to en-
sure the performance of the principal obligation, such
damages are accessory and subsidiary obligations. The
nullity of the principal obligation carried with it the nul-
lity of the accessory obligation of liquidated damages
(Menchavez, et al. vs. Teves. Jr., G.R. No. 153201, January
26, 2005).
7. When the breach of the contract committed
by the defendant is not the one contemplated by the
parties in agreeing upon the liquidated damages, the
law shall determine the measure of damages, and not
the stipulation (Art. 2228, Civil Code).
CHAPTER 7
EXEMPLARY DAMAGES
Nature and 1. Also known as “punitive” or “vindictive”

concept damages, exemplary or corrective damages are intended
to serve as a deterrent to serious wrongdoings and as a
vindication of undue sufferings and wanton invasion of
the rights of an injured or a punishment for those guilty
of outrageous conduct. These terms are generally, but
not always, used interchangeably. In common law, there
is preference in the use of exemplary damages when the
award is to account for injury to feelings and for the
sense of indignity and humiliation suffered by a person
as a result of an injury that has been maliciously and
wantonly inflicted, the theory being that there should
be compensation for the hurt caused by the highly rep-
rehensible conduct of the defendant — associated with
such circumstances as willfulness, wantonness, malice,
gross negligence or recklessness, oppression, insult or
fraud or gross fraud — that intensifies the injury. The
terms punitive or vindictive damages are often used to
refer to those species of damages that may be awarded
against a person to punish him for his outrageous con-
duct. In either case, these damages are intended in good
measure to deter the wrongdoer and others like him
from similar conduct in the future (People vs. Catubig,
G.R. No. 137842, August 23, 2001).
Requisites for 2. The following are the requisites for award of
the award of exemplary damages: First: They may be imposed by way
exemplary of example or correction only in addition to compensa-
damages
tory damages and cannot be recovered as a matter of
right, their determination depending upon the amount
of compensatory damages that may be awarded to the
claimant. Second: The claimant must first establish his
178
CHAPTER 7 179
EXEMPLARY DAMAGES
right to moral, temperate, liquidated or compensatory

damages. Third: The wrongful act must be accompa-
nied by bad faith, and the award would be allowed only
if the guilty party acted in a wanton, fraudulent, reck-
less, oppressive or malevolent manner (Medelo vs.
Gorospe, G.R. No. L-41970, March 25, 1988).
3. The rationale behind exemplary or corrective Rationale
damages is, as the name implies, to provide an example
or correction for the public good (Lopez, et al. v. Pan Ameri-
can World Airways, 16 SCRA 431). It differs from moral
damages in that “[w]hile moral damages have to do with
injury personal to the awardee, such as physical suffer-
ing and the like, exemplary damages are imposed by
way of example or correction for the public good”
(Makabali vs. Court of Appeals, et al., G.R. No. L-46877,
January 22, 1998).
4. Exemplary damages are designed to permit
the courts to mould behavior that has socially deleteri-
ous consequences, and its imposition is required by pub-
lic policy to suppress the wanton acts of an offender
(Kierulf, et al. vs. Court of Appeals, et al., G.R. No. 99301 &
99343, March 13, 1997).
5. While exemplary damages cannot be recov-
ered as a matter of right, they need not be proved, al-
though plaintiff must show that he is entitled to moral,
temperate or compensatory damages before the court
may consider the question of whether or not exemplary
damages should be awarded (Makabali vs. Court of Ap-
peals, et al., G.R. No. L-46877, January 22, 1998). The ab-
sence of actual damages, nominal, temperature, or com-
pensatory blocks the grant of exemplary damages
(Gutierrez vs. Villegas, et al., G.R. No. L-17117, July 31,
1963).
6. In criminal offenses, exemplary damages are Instances
imposed when the crime is committed with one or more where
aggravating circumstances (Art. 2230, Civil Code). In exemplary
quasi-delicts, such damages are granted if the defendant damages are
adjudicated
is shown to have been so guilty of gross negligence as to
approximate malice (See Art. 2231, Civil Code; CLLC
E.G. Gochangco Workers Union vs. NLRC, 161 SCRA
655; Globe Mackay Cable and Radio Corp. vs. CA, 176
SCRA 778. In contracts and quasi-contracts, the court may
award exemplary damages if the defendant is found to
have acted in a wanton, fraudulent, reckless, oppres-
sive, or malevolent manner (Art. 2232, Civil Code; PNB
vs. Gen. Acceptance and Finance Corp., 161 SCRA 449).
7. In contracts and quasi-contracts, the court may
award exemplary damages if the defendant acted in a
wanton, fraudulent, reckless, oppressive or malevolent
manner (Art. 2332, Civil Code). It may be awarded for
breach of contract or quasi-contract as when a telegraph
company personnel transmitted the wrong telegram.
Gross carelessness or negligence constitutes wanton mis-
conduct. (Radio Communication of the Philippines, Inc. v.
Court of Appeals, 103 SCRA 359 [1981]. It is not recover-
able in the absence of gross negligence (Bagumbayan Corp.
v. Intermediate Appellate Court, 132 SCRA 441 [1984]).
8. The cavalier treatment of airline personnel
manifests malice as manifested in the contemptuous dis-
regard of the passenger’s protest and the abrupt rejec-
tion of their request that the Manila office be contacted
for verification of the correct billing. Rudeness is never
excusable. It is especially condemnable if it is commit-
ted in one’s own country against a foreign guest. Air-
lines should always bear in mind the special responsi-
bilities they owe their passengers not only of carrying
them safely and comfortably according to their contracts
but also of extending to them the courtesy due them in
all matters relating to their trip, including reservations,
confirmation of bookings, ticketing and other ground
and in-flight services. The fare of the passenger includes
payment for politeness. Award of exemplary damages
warranted (Northwest Orient Airlines vs. Court of Appeals,
et al., G.R. No. 83033, June 8, 1990). In these cases, neither
the social standing nor prestige of the passenger should
determine the extent to which he would suffer because
of a wrong done, since the dignity affronted in the indi-
vidual is a quality inherent in him and not conferred by
these social indicators. Thus, as well and aptly put by
Justice Serafin Camilon, propriety of damage awards is
judged by their fairness considering all the circumstances.
CHAPTER 7 181
EXEMPLARY DAMAGES
A man’s stature is but an accident of life. The role it

plays is secondary to the concepts of justice and fair
play. (Alitalia Airways vs. Court of Appeals, et al., G.R. No.
77011, July 24, 1990).
9. Bad faith which would justify an award of
moral and exemplary damages for breach of contract of
carriage means a breach of a known duty through some
motive of interest or ill-will, such as the failure of an
airline to accommodate passengers which was not the
result of an honest mistake, because its employees knew
and were aware that what they were doing was wrong
(PAL vs. Court of Appeals, et al., G.R. No. 50504-05, August
13, 1990).
10. Exemplary damages are also awarded in
maritime disasters. “Exemplary damages are designed
by our civil law to permit the courts to reshape behavior
that is socially deleterious in its consequence by creat-
ing negative incentives or deterrents against such be-
havior. In requiring compliance with the standard of ex-
traordinary diligence, a standard which is in fact that of
the highest possible degree of diligence, from common
carriers and in creating a presumption of negligence
against them, the law seeks to compel them to control
their employees, to tame their reckless instincts and to
force them to take adequate care of human beings and
their property. The Court will take judicial notice of the
dreadful regularity with which grievous maritime di-
sasters occur in our waters with massive loss of life. The
bulk of our population is too poor to afford domestic air
transportation. So it is that notwithstanding the frequent
sinking of passenger vessels in our waters, crowds of
people continue to travel by sea. This Court is prepared
to use the instruments given to it by the law for securing
the ends of law and public policy. One of those instru-
ments is the institution of exemplary damages; one of
those ends, of special importance in an archipelagic state
like the Philippines, is the safe and reliable carriage of
people and goods by sea.” (Negros Navigation Co., Inc. vs.
Court of Appeals, G.R. No. 110398, November 7, 1997).
11. In quasi-delicts, exemplary damages may be
granted if the defendant acted with gross negligence (Art.
2231, Civil Code). Gross negligence which, according to

the Court, is equivalent to the term “notorious negli-
gence” and consists in the failure to exercise even slight
care [Caunan v. Compania General de Tabacos, 56 Phil.
542 (1932)]. It is that negligence characterized by the
want of even slight care, acting or omitting to act in a
situation where there is duty to act, not inadvertently
but willfully and intentionally, with a conscious indif-
ference to consequences in so far as other persons may
be affected (Benguet Electric Cooperative vs. Court of Ap-
peals, et al., G.R. No. 127326, December 23, 1999).
12. Exemplary damages are recoverable in cases
of illegal termination. Exemplary damages may be
awarded if the dismissal was effected in a wanton, op-
pressive or malevolent manner (Spartan Security & De-
tective Agency, Inc. vs NLRC, et al, supra). In such instance,
the claim is cognizable by the Labor Arbiter. “This is
because an illegally dismissed employee has only a single
cause of action although the act of dismissal may be a
violation not only of the Labor Code but also of the Civil
Code. For a single cause of action, the dismissed em-
ployee cannot institute a separate action before the La-
bor Arbiter for backwages and reinstatement and an-
other action before the regular court for the recovery of
moral and other damages because splitting a single cause
of action is procedurally unsound and obnoxious to the
orderly administration of justice” (Associates Citizens Bank
vs. Japson, G.R. No. 50098, April 30, 1991 citing Primero v.
Intermediate Appellate Court, supra, citing Gonzales v. Prov-
ince of Iloilo, 38 SCRA 209; Cyphil Employees Association-
Natu v. Pharmaceutical Industries, 77 SCRA 135; Calderon
v. Court of Appeals, 100 SCRA 459, etc.).
13. To serve as an example for the public good,
the Supreme Court affirmed the award of exemplary
damages in order to serve warning to the city or cities
concerned to be more conscious of their duty and re-
sponsibility to their constituents, especially when they
are engaged in construction work or when there are man-
holes on their sidewalks or streets which are uncovered,
to immediately cover the same, in order to minimize or
prevent accidents to the poor pedestrians. Too often in
CHAPTER 7 183
EXEMPLARY DAMAGES
the zeal to put up “public impact” projects such as beau-

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

G.R. No. 113345, February 9, 1996); or a brother-in-law
from committing rape (People vs. Baldino, G.R. No. 137269,
October 13, 2000). To be appreciated, the relationship must
be stated in the Information (cf., People vs. Yaoto, G.R. No.
136317-18, November 18, 2001). But in People vs. Delayre,
G.R. No. 139788 & 139827, October 3, 2002), it was ruled
that if the relationship is not alleged in either of the two
Informations, “it cannot be used to aggravate or qualify
the rapes. However, even if not so alleged, an aggravat-
ing circumstance, when proven to have attended the
commission of the crime, entitles the complainant to ex-
emplary damages.” Under prevailing jurisprudence, ex-
emplary damages in these cases is fixed at P25,000.00.
20. The term aggravating circumstances as used
therein is to be understood in its broad or generic sense
since the law did not specify otherwise. The ordinary
qualifying nature of an aggravating circumstance is a
distinction that should only be of consequence to the
criminal, rather than to the civil liability of the offender
(People vs. Pidoy, G.R. No. 146696, July 3, 2003).
21. Exemplary damages may also be awarded in
a case of a hapless foreign religious minister was riddled
with bullets, his head shattered into bits and pieces
amidst the ravelling of his executioners as they danced
and laughed around their quarry, chanting the tune
“Mutya Ka Baleleng,” a popular regional folk song, kick-
ing and scoffing at his prostrate, miserable, spiritless
figure that was gasping its last. Seemingly unsatiated
with the ignominy of their manslaughter, their leader
picked up pieces of the splattered brain and mockingly
displayed them before horrified spectators. Some ac-
counts swear that acts of cannibalism ensued, although
they were not sufficiently demonstrated. However, for
their outrageous feat, the gangleader already earned the
monicker “cannibal priest-killer.” But what is indubi-
table is that Fr. Tulio Favali was senselessly killed for no
apparent reason than that he was one of the Italian Catho-
lic missionaries laboring in their vineyard in the hinter-
lands of Mindanao (People vs. Manero, G.R. Nos. 86883-
85, January 29, 1993).
CHAPTER 7 185
EXEMPLARY DAMAGES
22. In a case where home-made firearms

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

apprehension because it truly deserves his faith in it (Pru-
dential Bank vs. Court of Appeals, G.R. No. 108957, June 14,
1993).
24. A stipulation whereby exemplary damages
are renounced in advance shall be null and void (Article
2235).
187
CHAPTER 8
ASSESSMENT OF DAMAGES
1. There is, to be sure, no hard and fast rule for Guiding

determining what would be a fair amount of moral (or principle
exemplary) damages, each case having to be governed
by its attendant particulars. Generally, the amount of
moral damages should be commensurate with the ac-
tual loss or injury suffered (del Rosario vs. Court of Ap-
peals, et al., G.R. No. 118325, January 29, 1997).
2. In Inhelder Corporation v. Court of Appeals, G.R.
No. L-52358, 122 SCRA 576, 585, (May 30, 1983), the rule
was laid down that judicial discretion granted to the
courts in the assessment of damages must always be
exercised with balanced restraint and measured objec-
tivity.
3. In crimes, the damages to be adjudicated may In crimes
be respectively increased or lessened according to the
aggravating or mitigating circumstances (Article 2204,
Civil Code).
In simple and qualified rape cases, the Supreme
Court noted that there is an apparent discord in the
award of exemplary damages which deserves more than
just a passing remark (cf., People vs. Catubig, G.R. No.
137842, August 23, 2001).
The attendance of aggravating circumstances in the
perpetration of the crime serves to increase the penalty
(the criminal liability aspect), as well as to justify an
award of exemplary or corrective damages (the civil li-
ability aspect), moored on the greater perversity of the
offender manifested in the commission of the felony such
as may be shown by (1) the motivating power itself, (2)
the place of commission, (3) the means and ways em-
187
ployed, (4) the time, or (5) the personal circumstances of

the offender or the offended party or both. There are
various types of aggravating circumstances, among them,
the ordinary and the qualifying. Relationship is an alter-
native circumstance under Article 15 of the Revised Pe-
nal Code (Ibid.).
Thus, in People vs. Fundano, People vs. Ramos,
People vs. Medina, People vs. Dimapilis, People vs.
Calayca, People vs. Tabion, People vs. Bayona, People
vs. Bayya, and People vs. Nuñez,1 along with still other
cases, the Court has almost invariably appreciated rela-
tionship as an ordinary aggravating circumstance in
simple rape and thereby imposed exemplary damages
upon the offender whether or not the offense has been
committed prior to or after the effectivity of Republic
Act No. 7659. Exceptionally, as in People vs. Decena,
People vs. Perez, People vs. Perez, and People vs.
Ambray, the Court has denied the award of exemplary
damages following the effectivity of that law. In quali-
fied rape cases, such as in People vs. Magdato, People
vs. Arizapa, and People vs. Alicante, the Court decreed
the payment of exemplary damages to the offended party
but it did not do so as in People vs. Alba, People vs.
Mengote, and People vs. Maglente.
The Court expressly decreed it is high time that It
abandons its pro hac vice stance and provide, for the
guidance of the bar and the bench, a kind of standard on
the matter, viz: [a]lso known as “punitive” or “vindic-
tive” damages, exemplary or corrective damages are in-
tended to serve as a deterrent to serious wrongdoings
and as a vindication of undue sufferings and wanton
invasion of the rights of an injured or a punishment for
those guilty of outrageous conduct. These terms are gen-
erally, but not always, used interchangeably. In common
law, there is preference in the use of exemplary damages
when the award is to account for injury to feelings and
1
Citations omitted.
CHAPTER 8 189
for the sense of indignity and humiliation suffered by a

person as a result of an injury that has been maliciously
and wantonly inflicted, the theory being that there should
be compensation for the hurt caused by the highly rep-
rehensible conduct of the defendant — associated with
such circumstances as willfulness, wantonness, malice,
gross negligence or recklessness, oppression, insult or
fraud or gross fraud — that intensifies the injury. The
terms punitive or vindictive damages are often used to
refer to those species of damages that may be awarded
against a person to punish him for his outrageous con-
duct. In either case, these damages are intended in good
measure to deter the wrongdoer and others like him
from similar conduct in the future.
The term “aggravating circumstances” used by the
Civil Code, the law not having specified otherwise, is to
be understood in its broad or generic sense. The com-
mission of an offense has a two-pronged effect, one on
the public as it breaches the social order and the other
upon the private victim as it causes personal sufferings,
each of which is addressed by, respectively, the prescrip-
tion of heavier punishment for the accused and by an
award of additional damages to the victim. The increase
of the penalty or a shift to a graver felony underscores
the exacerbation of the offense by the attendance of ag-
gravating circumstances, whether ordinary or qualify-
ing, in its commission. Unlike the criminal which is ba-
sically a State concern, the award of damages, however,
is likewise, if not primarily, intended for the offended
party who suffers thereby. It would make little sense for
an award of exemplary damages to be due the private
offended party when the aggravating circumstance is
ordinary but to be withheld when it is qualifying. Withal,
the ordinary or qualifying nature of an aggravating cir-
cumstance is a distinction that should only be of conse-
quence to the criminal, rather than to the civil, liability
of the offender.
In fine, relative to the civil aspect of the case, an
aggravating circumstance, whether ordinary or qualify-
ing, should entitle the offended party to an award of
exemplary damages within the unbridled meaning of
Article 2230 of the Civil Code (Ibid.)
In quasi- 4. In quasi-delicts, the contributory negligence of

delicts the plaintiff shall reduce the damages that he may re-
cover (Art. 2214, Civil Code).
In quasi- 5. In contracts, quasi-contracts, and quasi-delicts,
contracts the court may equitably mitigate the damages under
circumstances other than the case referred to in the pre-
ceding article, as in the following instances: (1) That the
plaintiff himself has contravened the terms of the con-
tract; (2) That the plaintiff has derived some benefit as a
result of the contract; (3) In cases where exemplary dam-
ages are to be awarded, that the defendant acted upon
the advice of counsel; (4) That the loss would have re-
sulted in any event; (5) That since the filing of the ac-
tion, the defendant has done his best to lessen the
plaintiff’s loss or injury (Article 2215, Civil Code).
Doctrine of 6. The party suffering loss or injury must exer-
avoidable cise the diligence of a good father of a family to mini-
conse- mize the damages resulting from the act or omission in
quences
question (Article 2203, Civil Code). Under the doctrine of
avoidable consequences, a party cannot recover dam-
ages flowing from the consequences which that party
could reasonably have avoided (22 AmJur 2d, at p. 51).
Corollary to this principle, the person who reasonably
attempts to minimize his damages can recover expenses
incurred. Thus, in the United States, a person tortiously
injured can recover the cost of medical services incurred
in seeking correction of the injury (Id., at p. 52).
7. The doctrine of avoidable consequences is to
be distinguished from the doctrine of contributory neg-
ligence. Although in this jurisdiction, both operate to
prevent full recovery, contributory negligence occurs ei-
ther before or at the time of the wrongful act or omis-
sion of the defendant. On the other hand, the doctrine of
avoidable consequences arise after the wrongful act of
the defendant (cf., 22 AmJur 2d, at p. 52).
Judgment on 8. The court cannot take judgment on the plead-
the pleadings ings on claims for damages. The Supreme Court held in
improper Raagas v. Traya, et al., G.R. No. L-20081, February 27, 1968,
that “[e]ven if the allegations regarding the amount of
damages in the complaint are not specifically denied in
CHAPTER 7 191
the answer, such damages are not deemed admitted. Ac-

tual damages must be proved and a court cannot rely on
speculation, conjecture or guesswork as to the fact and
amount of damages, but must depend on actual proof
that damages had been suffered and on evidence of the
actual amount. Although an allegation is not necessary
in order that moral damages may be awarded, it is es-
sential that the claimant satisfactorily prove the exist-
ence of the factual basis of the damage and its causal
relation to defendant’s acts. Even if the allegations re-
garding the amount of damages in the complaint are not
specifically denied in the answer, such damages are not
deemed admitted. Actual damages must be proved and
a court cannot rely on speculation, conjecture or guess-
work as to the fact and amount of damages, but must
depend on actual proof that damages had been suffered
and on evidence of the actual amount. Although an alle-
gation is not necessary in order that moral damages may
be awarded, it is essential that the claimant satisfacto-
rily prove the existence of the factual basis of the dam-
age and its causal relation to defendant’s acts.”
9. Under Article 32 and 2219 of the New Civil Good faith
Code, a person whose constitutional rights have been not a defense
violated or impaired is entitled to actual and moral dam- in action for
damages
ages from the public officer or employee responsible
founded on
therefore. In addition, exemplary damages may also be violation of
awarded. To be liable under Article 32 of the New Civil constitutional
Code it is enough that there is a violation of the consti- rights
tutional rights of the plaintiffs and it is not required that
defendants should have acted with malice or bad faith.
Public officials in the past have abused their powers on
the pretext of justifiable motives or good faith in the
performance of their duties. Precisely, the object of Ar-
ticle 32 of the Civil Code is to put an end to official
abuse by the plea of good faith (Lim, et al. vs. de Leon, et
al., G.R. No. L-22554, August 29, 1975).
10. Article 32 speaks of an officer or employee or
person “directly” or “indirectly” responsible for the vio-
lation of the constitutional rights and liberties of another.
Thus, it is not the actor alone (i.e. the one directly re-
sponsible) who must answer for damages under Article
32; the person indirectly responsible has also to answer

for the damages or injury caused to the aggrieved party.
Only judges are excluded from liability under the said
article, provided their acts or omissions do not consti-
tute a violation of the Penal Code or other penal statute.
By this provision, the principle of accountability of pub-
lic officials under the Constitution acquires added mean-
ing and assumes a larger dimension. No longer may a
superior official relax his vigilance or abdicate his duty
to supervise his subordinates, secure in the thought that
he does not have to answer for the transgressions com-
mitted by the latter against the constitutionally protected
rights and liberties of the citizen (Aberca vs. Ver, et al.,
G.R. No. L-69866, April 15, 1988).
11. That the privilege of writ of habeas corpus has
been suspended is no defense in an action for damages
based on violation of constitutional rights. “The suspen-
sion of the privilege of the writ of habeas corpus does not
destroy petitioners’ right and cause of action for dam-
ages for illegal arrest and detention and other violations
of their constitutional rights. The suspension does not
render valid an otherwise illegal arrest or detention.
What is suspended is merely the right of the individual
to seek release from detention through the writ of habeas
corpus as a speedy means of obtaining his liberty.” (Id.).
193
APPENDICES
APPENDIX A
CIVIL CODE PROVISIONS ON QUASI-DELICT
BOOK IV
TITLE XVII
Chapter 2
QUASI-DELICTS
Art. 2176. Whoever by act or omission causes damage to another,

there being fault or negligence, is obliged to pay for the damage done.
Such fault or negligence, if there is no pre-existing contractual relation
between the parties, is called a quasi-delict and is governed by the
provisions of this Chapter. (1902a)
Art. 2177. Responsibility for fault or negligence under the preced-
ing article is entirely separate and distinct from the civil liability arising
from negligence under the Penal Code. But the plaintiff cannot recover
damages twice for the same act or omission of the defendant. (n)
Art. 2178. The provisions of Articles 1172 to 1174 are also appli-
cable to a quasi-delict. (n)
Art. 2179. When the plaintiff’s own negligence was the immedi-
ate and proximate cause of his injury, he cannot recover damages. But if
his negligence was only contributory, the immediate and proximate
cause of the injury being the defendant’s lack of due care, the plaintiff
may recover damages, but the courts shall mitigate the damages to be
awarded. (n)
Art. 2180. The obligation imposed by Article 2176 is demandable
not only for one’s own acts or omissions, but also for those of persons
for whom one is responsible.
193
The father and, in case of his death or incapacity, the mother, are
responsible for the damages caused by the minor children who live in
their company.
Guardians are liable for damages caused by the minors or inca-
pacitated persons who are under their authority and live in their com-
pany.
The owners and managers of an establishment or enterprise are
likewise responsible for damages caused by their employees in the
service of the branches in which the latter are employed or on the
occasion of their functions.
Employers shall be liable for the damages caused by their em-
ployees and household helpers acting within the scope of their assigned
tasks, even though the former are not engaged in any business or in-
dustry.
The State is responsible in like manner when it acts through a
special agent; but not when the damage has been caused by the official
to whom the task done properly pertains, in which case what is pro-
vided in Article 2176 shall be applicable.
Lastly, teachers or heads of establishments of arts and trades shall
be liable for damages caused by their pupils and students or appren-
tices, so long as they remain in their custody.
The responsibility treated of in this article shall cease when the
persons herein mentioned prove that they observed all the diligence of
a good father of a family to prevent damage. (1903a)
Art. 2181. Whoever pays for the damage caused by his depen-
dents or employees may recover from the latter what he has paid or
delivered in satisfaction of the claim. (1904)
Art. 2182. If the minor or insane person causing damage has no
parents or guardians, the minor or insane person shall be answerable
with his own property in an action against him where a guardian ad
litem shall be appointed. (n)
Art. 2183. The possessor of an animal or whoever may make use
of the same is responsible for the damage which it may cause, although
it may escape or be lost. This responsibility shall cease only in case the
damage should come from force majeure or from the fault of the person
who has suffered damage. (1905)
Art. 2184. In motor vehicle mishaps, the owner is solidarily liable
with his driver, if the former, who was in the vehicle, could have, by the
APPENDIX A 195
CIVIL CODE PROVISIONS ON QUASI-DELICT
use of due diligence, prevented the misfortune. It is disputably pre-

sumed that a driver was negligent, if he had been found guilty of reck-
less driving or violating traffic regulations at least twice within the next
preceding two months.
If the owner was not in the motor vehicle, the provisions of Ar-
ticle 2180 are applicable. (n)
Art. 2185. Unless there is proof to the contrary, it is presumed that
a person driving a motor vehicle has been negligent if at the time of the
mishap, he was violating any traffic regulation. (n)
Art. 2186. Every owner of a motor vehicle shall file with the proper
government office a bond executed by a government-controlled corpo-
ration or office, to answer for damages to third persons. The amount of
the bond and other terms shall be fixed by the competent public offi-
cial. (n)
Art. 2187. Manufacturers and processors of foodstuffs, drinks, toi-
let articles and similar goods shall be liable for death or injuries caused
by any noxious or harmful substances used, although no contractual
relation exists between them and the consumers. (n)
Art. 2188. There is prima facie presumption of negligence on the
part of the defendant if the death or injury results from his possession
of dangerous weapons or substances, such as firearms and poison, ex-
cept when the possession or use thereof is indispensable in his occupa-
tion or business. (n)
Art. 2189. Provinces, cities and municipalities shall be liable for
damages for the death of, or injuries suffered by, any person by reason
of the defective condition of roads, streets, bridges, public buildings,
and other public works under their control or supervision. (n)
Art. 2190. The proprietor of a building or structure is responsible
for the damages resulting from its total or partial collapse, if it should
be due to the lack of necessary repairs. (1907)
Art. 2191. Proprietors shall also be responsible for damages caused:
(1) By the explosion of machinery which has not been taken
care of with due diligence, and the inflammation of explosive sub-
stances which have not been kept in a safe and adequate place;
(2) By excessive smoke, which may be harmful to persons or
property;
(3) By the falling of trees situated at or near highways or lanes,
if not caused by force majeure;
(4) By emanations from tubes, canals, sewers or deposits of in-

fectious matter, constructed without precautions suitable to the place.
(1908)
Art. 2192. If damage referred to in the two preceding articles should
be the result of any defect in the construction mentioned in Article
1723, the third person suffering damages may proceed only against the
engineer or architect or contractor in accordance with said article, within
the period therein fixed. (1909a)
Art. 2193. The head of a family that lives in a building or a part
thereof, is responsible for damages caused by things thrown or falling
from the same. (1910)
Art. 2194. The responsibility of two or more persons who are li-
able for a quasi-delict is solidary. (n)
197
APPENDIX B
CIVIL CODE PROVISIONS ON DAMAGES
BOOK IV
TITLE XVIII — DAMAGES
Chapter 1
GENERAL PROVISIONS
Art. 2195. The provisions of this Title shall be respectively appli-

cable to all obligations mentioned in Article 1157.
Art. 2196. The rules under this Title are without prejudice to spe-
cial provisions on damages formulated elsewhere in this Code. Com-
pensation for workmen and other employees in case of death, injury or
illness is regulated by special laws. Rules governing damages laid down
in other laws shall be observed insofar as they are not in conflict with
this Code.
Art. 2197. Damages may be:
(1) Actual or compensatory;
(2) Moral;
(3) Nominal;
(4) Temperate or moderate;
(5) Liquidated; or
(6) Exemplary or corrective.
Art. 2198. The principles of the general law on damages are hereby
adopted insofar as they are not inconsistent with this Code.
Chapter 2
ACTUAL OR COMPENSATORY DAMAGES
Art. 2199. Except as provided by law or by stipulation, one is
entitled to an adequate compensation only for such pecuniary loss suf-
197
fered by him as he has duly proved. Such compensation is referred to

as actual or compensatory damages.
Art. 2200. Indemnification for damages shall comprehend not only
the value of the loss suffered, but also that of the profits which the
obligee failed to obtain. (1106)
Art. 2201. In contracts and quasi-contracts, the damages for which
the obligor who acted in good faith is liable shall be those that are the
natural and probable consequences of the breach of the obligation, and
which the parties have foreseen or could have reasonably foreseen at
the time the obligation was constituted.
In case of fraud, bad faith, malice or wanton attitude, the obligor
shall be responsible for all damages which may be reasonably attrib-
uted to the non-performance of the obligation. (1107a)
Art. 2202. In crimes and quasi-delicts, the defendants shall be
liable for all damages which are the natural and probable consequences
of the act or omission complained of. It is not necessary that such dam-
ages have been foreseen or could have reasonably been foreseen by the
defendant.
Art. 2203. The party suffering loss or injury must exercise the
deligence of a good father of a family to minimize the damages result-
ing from the act or omission in question.
Art. 2204. In crimes, the damages to be adjudicated may be re-
spectively increased or lessened according to the aggravating or miti-
gating circumstances.
Art. 2205. Damages may be recovered:
(1) For loss or impairment of earning capacity in cases of tem-
porary or permanent personal injury;
(2) For injury to the plaintiff’s business standing or commercial
credit.
Art. 2206. The amount of damages for death caused by a crime or
quasi-delict shall be at least Three thousand pesos, even though there
may have been mitigating circumstances. In addition:
(1) The defendant shall be liable for the loss of the earning ca-
pacity of the deceased, and the indemnity shall be paid to the heirs of
the latter; such indemnity shall in every case be assessed and awarded
by the court, unless the deceased on account of permanent physical
disability not caused by the defendant, had no earning capacity at the
time of his death;
APPENDIX B 199
(2) If the deceased was obliged to give support according to the

provisions of Article 291, the recipient who is not an heir called to the
decedent’s inheritance by the law of testate or intestate succession, may
demand support from the person causing the death, for a period not
exceeding five years, the exact duration to be fixed by the court;
(3) The spouse, legitimate and illegitimate descendants and as-
cendants of the deceased may demand moral damages for mental an-
guish by reason of the death of the deceased.
Art. 2207. If the plaintiff’s property has been insured, and he has
received indemnity from the insurance company for the injury or loss
arising out of the wrong or breach of contract complained of, the insur-
ance company shall be subrogated to the rights of the insured against
the wrongdoer or the person who has violated the contract. If the amount
paid by the insurance company does not fully cover the injury or loss,
the aggrieved party shall be entitled to recover the deficiency from the
person causing the loss or injury.
Art. 2208. In the absence of stipulation, attorney’s fees and ex-
penses of litigation, other than judicial costs, cannot be recovered, ex-
cept:
(1) When exemplary damages are awarded;
(2) When the defendant’s act or omission has compelled the
plaintiff to litigate with third persons or to incur expenses to protect his
interest;
(3) In criminal cases of malicious prosecution against the plain-
tiff;
(4) In case of a clearly unfounded civil action or proceeding
against the plaintiff;
(5) Where the defendant acted in gross and evident bad faith in
refusing to satisfy the plaintiff’s plainly valid, just and demandable
claim;
(6) In actions for legal support;
(7) In actions for the recovery of wages of household helpers,
laborers and skilled workers;
(8) In actions for indemnity under workmen’s compensation
and employer’s liability laws;
(9) In a separate civil action to recover civil liability arising from
a crime;
(10) When at least double judicial costs are awarded;

(11) In any other case where the court deems it just and equitable
that attorney’s fees and expenses of litigation should be recovered.
In all cases, the attorney’s fees and expenses of litigation must be
reasonable.
Art. 2209. If the obligation consists in the payment of a sum of
money, and the debtor incurs in delay, the indemnity for damages,
there being no stipulation to the contrary, shall be the payment of the
interest agreed upon, and in the absence of stipulation, the legal inter-
est, which is six per cent per annum. (1108)
Art. 2210. Interest may, in the discretion of the court, be allowed
upon damages awarded for breach of contract.
Art. 2211. In crimes and quasi-delicts, interest as a part of the
damages may, in a proper case, be adjudicated in the discretion of the
court.
Art. 2212. Interest due shall earn legal interest from the time it is
judicially demanded, although the obligation may be silent upon this
point. (1109a)
Art. 2213. Interest cannot be recovered upon unliquidated claims
or damages, except when the demand can be established with reason-
able certainty.
Art. 2214. In quasi-delicts, the contributory negligence of the plain-
tiff shall reduce the damages that he may recover.
Art. 2215. In contracts, quasi-contracts, and quasi-delicts, the court
may equitably mitigate the damages under circumstances other than
the case referred to in the preceding article, as in the following in-
stances:
(1) That the plaintiff himself has contravened the terms of the
contract;
(2) That the plaintiff has derived some benefit as a result of the
contract;
(3) In cases where exemplary damages are to be awarded, that
the defendant acted upon the advice of counsel;
(4) That the loss would have resulted in any event;
(5) That since the filing of the action, the defendant has done
his best to lessen the plaintiff’s loss or injury.
APPENDIX B 201
Chapter 3
OTHER KINDS OF DAMAGES
Art. 2216. No proof of pecuniary loss is necessary in order that

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

guish, fright, serious anxiety, besmirched reputation, wounded feel-
ings, moral shock, social humiliation, and similar injury. Though inca-
pable of pecuniary computation, moral damages may be recovered if
they are the proximate result of the defendant’s wrongful act for omis-
sion.
Art. 2218. In the adjudication of moral damages, the sentimental
value of property, real or personal, may be considered.
Art. 2219. Moral damages may be recovered in the following and
analogous cases:
(1) A criminal offense resulting in physical injuries;
(2) Quasi-delicts causing physical injuries;
(3) Seduction, abduction, rape, or other lascivious acts;
(4) Adultery or concubinage;
(5) Illegal or arbitrary detention or arrest;
(6) Illegal search;
(7) Libel, slander or any other form of defamation;
(8) Malicious prosecution;
(9) Acts mentioned in Article 309;
(10) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30,
32, 34, and 35.
The parents of the female seduced, abducted, raped, or abused,
referred to in No. 3 of this article, may also recover moral damages.
The spouse, descendants, ascendants, and brother and sisters may

bring the action mentioned in No. 9 of this article, in the order named.
Art. 2220. Willful injury to property may be a legal ground for
awarding moral damages if the court should find that, under the cir-
cumstances, such damages are justly due. The same rule applies to
breaches of contract where the defendant acted fraudulently or in bad
faith.
Section 2. — Nominal Damages

Art. 2221. Nominal damages are adjudicated in order that a right
of the plaintiff, which has been violated or invaded by the defendant,
may be vindicated or recognized, and not for the purpose of indemni-
fying the plaintiff for any loss suffered by him.
Art. 2222. The court may award nominal damages in every obli-
gation arising from any source enumerated in Article 1157, or in every
case where any property right has been invaded.
Art. 2223. The adjudication of nominal damages shall preclude
further contest upon the right involved and all accessory questions, as
between the parties to the suit, or their respective heirs and assigns.
Section 3. — Temperate or Moderate Damages

Art. 2224. Temperate or moderate damages, which are more than
nominal but less than compensatory damages, may be recovered when
the court finds that some pecuniary loss has been suffered but its amount
can not, from the nature of the case, be proved with certainty.
Art. 2225. Temperate damages must be reasonable under the cir-
cumstances.
Section 4. — Liquidated Damages

Art. 2226. Liquidated damages are those agreed upon by the par-
ties to a contract, to be paid in case of breach thereof.
Art. 2227. Liquidated damages, whether intended as an indem-
nity or a penalty, shall be equitably reduced if they are iniquitous or
unconscionable.
Art. 2228. When the breach of the contract committed by the de-
fendant is not the one contemplated by the parties in agreeing upon the
liquidated damages, the law shall determine the measure of damages,
and not the stipulation.
APPENDIX B 203
Section 5. — Exemplary or Corrective Damages
Art. 2229. Exemplary or corrective damages are imposed, by way

of example or correction for the public good, in addition to the moral,
temperate, liquidated or compensatory damages.
Art. 2230. In criminal offenses, exemplary damages as a part of
the civil liability may be imposed when the crime was committed with
one or more aggravating circumstances. Such damages are separate
and distinct from fines and shall be paid to the offended party.
Art. 2231. In quasi-delicts, exemplary damages may be granted if
the defendant acted with gross negligence.
Art. 2232. In contracts and quasi-contracts, the court may award
exemplary damages if the defendant acted in a wanton, fraudulent,
reckless, oppressive, or malevolent manner.
Art. 2233. Exemplary damages cannot be recovered as a matter of
right; the court will decide whether or not they should be adjudicated.
Art. 2234. While the amount of the exemplary damages need not
be proved, the plaintiff must show that he is entitled to moral, temper-
ate or compensatory damages before the court may consider the ques-
tion of whether or not exemplary damages should be awarded. In case
liquidated damages have been agreed upon, although no proof of loss
is necessary in order that such liquidated damages may be recovered,
nevertheless, before the court may consider the question of granting
exemplary in addition to the liquidated damages, the plaintiff must
show that he would be entitled to moral, temperate or compensatory
damages were it not for the stipulation for liquidated damages.
Art. 2235. A stipulation whereby exemplary damages are re-
nounced in advance shall be null and void.
205
SUBJECT INDEX
TORTS
ABUSE OF RIGHT
Doctrine ........................................................................... 102
Elements ........................................................................... 104
Test ........................................................................... 105
ACADEMIC INSTITUTIONS
Liability for quasi-delict .................................................... 69
Liability under contracts ................................................... 70
As employer ........................................................................ 71
ANTI-VIOLENCE AGAINST WOMEN AND CHILDREN .. 109
ASSUMPTION OF RISK ............................................................. 75
Coverage ........................................................................... 75
Exceptions ........................................................................... 76
BURDEN OF PROOF .................................................................. 31
CAPTAIN OF THE SHIP DOCTRINE ...................................... 122
CAVEAT EMPTOR ...................................................................... 98, 99
CAVEAT VENDITOR .................................................................. 98
CONSUMER ACT OF THE PHILIPPINES .............................. 96
CORPORATION
Liability of directors/ trustees ......................................... 122
CULPA AQUILIANA
Distinguished from culpa criminal .................................. 5
Distinguished from culpa contractual ............................ 16, 17
Available remedies ............................................................. 86, 91
Action for damages survives death of defendant ......... 93
DILIGENCE OF GOOD FATHER OF FAMILY ....................... 29, 39, 52
In the supervision of employees ...................................... 52
In the selection of employees ........................................... 54
As a defense ........................................................................ 81
DOCTRINE OF ATTRACTIVE NUISANCE ........................... 74
Excavation ........................................................................... 75
DOCTRINE OF CONTRIBUTORY NEGLIGENCE
Definition ........................................................................... 82
205
A partial defense ................................................................ 82

Distinguished from doctrine of last clear chance .......... 83
In children below 9 ............................................................ 83
Not applicable in criminal cases ...................................... 85
DOCTRINE OF DISCOVERED PERIL ..................................... 77
DOCTRINE OF IMPLIED INVITATION
TO VISIT THE PREMISES OF ANOTHER ..................... 73
DOCTRINE OF LAST CLEAR CHANCE
Definition ........................................................................... 77
Applicability ....................................................................... 77- 79
Not applicable in culpa contractual case ........................ 79
Applicable to vehicular accidents .................................... 79
DRUGGIST
Liability of ........................................................................... 98
EMERGENCY RULE ................................................................... 79
EMOTIONAL DISTRESS TORT ACTION ............................... 106
EMPLOYER’S LIABILITY
Based on quasi-delict ......................................................... 14
Based on Art. 100 of the Revised Penal Code ................ 56, 58
ENTERPRISE LIABILITY ........................................................... 96
ERROR IN JUDGMENT RULE .................................................. 115
GUARDIANS
Vicarious liability ............................................................... 43
Kinds of guardians ............................................................. 43
HEAD OF FAMILY ...................................................................... 100
HOSPITALS
Liability in medical malpractice cases ............................ 118, 120
HUMANITARIAN DOCTRINE ................................................ 77
INDEPENDENT CIVIL ACTION .............................................. 12
Rules on reservation .......................................................... 90
INSURER ........................................................................... 93
INTERFERENCE WITH CONTRACTUAL RELATIONS ..... 109
JUVENILE JUSTICE AND WELFARE ACT ............................ 84
LEGAL MALPRACTICE ............................................................ 122
MANUFACTURERS AND PROCESSORS OF
FOODSTUFFS ..................................................................... 95-100
MEDICAL MALPRACTICE ....................................................... 110
Elements ........................................................................... 112
Error in Judgment Rule ..................................................... 115
NEGLIGENCE
Definition ............................................................................. 23
Test ....................................................................................... 24
SUBJECT INDEX 207
TORTS
Degrees of diligence ........................................................... 25

Factors to be considered .................................................... 28
Presumptions ...................................................................... 32, 33
A question of fact ............................................................... 36
Plaintiff’s own negligence ................................................. 72
Doctrine of Intervening Negligence ................................ 77
Doctrine of Contributory Negligence ............................. 82
NUISANCE ........................................................................... 123
PHYSICIAN- PATIENT RELATIONSHIP ................................ 110
POSSESSOR OF ANIMALS ....................................................... 94-95
PRESCRIPTION ........................................................................... 81
PROXIMATE CAUSE
Definition ........................................................................... 29
“But for” test ....................................................................... 30
Concurrence of efficient causes ........................................ 30
QUASI-DELICT
Definition ........................................................................... 2, 3
Elements ........................................................................... 3
Culpa aquiliana distinguished from culpa criminal ..... 5
Pre-existing contract as a bar ............................................ 14
Exceptions ........................................................................... 15
Culpa aquiliana distinguished from culpa
contractual ................................................................. 16, 17
Special issues involving culpa contractual ..................... 18
RECESS ........................................................................... 69
RES IPSA LOQUITUR
Definition ........................................................................... 33
Applicability ....................................................................... 35, 116
RESERVATION OF CIVIL ACTION ......................................... 87- 90
RESPONDEAT SUPERIOR ........................................................ 45, 50
ROVING COMMISSION RULE ................................................ 48
RULE OF DAVIES VS. MANN .................................................. 77
SPECIAL AGENT ........................................................................ 61
SPECIAL ERRAND RULE .......................................................... 48
SPECIAL TORTS .......................................................................... 102, 103
Moral damages ................................................................... 157
Definition ........................................................................... 94
Rationale ........................................................................... 94
Strict liability in torts ......................................................... 94
TORTFEASOR
Nature of liability ............................................................... 37, 92
Release of tortfeasor, effect on others .............................. 37

TORTS
Definition ........................................................................... 1
Distinguished from quasi-delict ...................................... 2
Strict Liability ..................................................................... 94
Special Torts ........................................................................ 102
Kindred Torts ...................................................................... 110
VICARIOUS LIABILITY
Doctrine of ........................................................................... 38
Rationale ........................................................................... 38, 46, 47
Of parents ........................................................................... 40
Of guardians ....................................................................... 43
Of employers ...................................................................... 43
Of owners of vehicle .......................................................... 60
Of State ........................................................................... 60
Of Provinces, cities and municipalities ........................... 62
Of teachers .......................................................................... 64 -69
Of schools of arts and trade .............................................. 64
Of proprietor of building or structure ............................. 71
VOLENTI NON FIT INJURIA ................................................... 75
WORKING SCHOLARS ............................................................. 49
209
SUBJECT INDEX
DAMAGES
ACTUAL DAMAGES
Definition ........................................................................... 127
Requirements ...................................................................... 128
Burden of proof .................................................................. 128
Components of ................................................................... 129
Kinds .................................................................................... 130
In contracts .......................................................................... 130
In quasi-contracts ............................................................... 130
In quasi-delict ..................................................................... 131, 135
In crimes .............................................................................. 131, 135
ATTORNEY’S FEES ..................................................................... 138, 139
BREACH OF PROMISE TO MARRY ........................................ 158, 165
CIVIL INDEMNITY ..................................................................... 135, 136
In rape cases ........................................................................ 143
DAMAGE ..................................................................................... 124
DAMAGES
Definition ............................................................................. 124
Distinguished from other concepts ................................. 124
Rationale .............................................................................. 125
General damages ................................................................ 125
Special damages ................................................................. 125
Assessment of ..................................................................... 187
DAMNUM ABSQUE INJURIA ................................................. 124, 125
DOCTRINE OF AVOIDABLE CONSEQUENCE .................... 190
DOCTRINE OF FAIR COMMENT ............................................ 147
EGGSHELL SKULL RULE ......................................................... 131
EXEMPLARY DAMAGES
Nature and concept ............................................................ 178
Requisites ............................................................................ 178
Rationale .............................................................................. 179
When recoverable .............................................................. 179
GENERAL DAMAGES ............................................................... 125
209
INJURY ..................................................................................... 124

INTEREST ..................................................................................... 136, 137
JUDGMENT ON PLEADINGS .................................................. 190
LIBEL ..................................................................................... 146
Publication in libel cases ................................................... 149
Group libel .......................................................................... 150
LIQUIDATED DAMAGES
Definition ............................................................................. 176
LOST EARNINGS ........................................................................ 133
Formula ............................................................................... 134
LUCRUM CESSANS ................................................................... 130
MALICIOUS PROSECUTION ................................................... 152
MORAL DAMAGES
Requirements ...................................................................... 142
Instances where moral damages may be recovered ...... 144
In seduction ......................................................................... 144
In quasi-delict ..................................................................... 144
In rape cases ........................................................................ 145
In defamation ...................................................................... 145
In culpa contractual cases ................................................. 159
Analogous cases ................................................................. 163
In favor of corporation, general rule ............................... 166
Exception ............................................................................. 167
NOMINAL DAMAGES
PUBLIC FIGURE DOCTRINE ................................................... 149
SPECIAL DAMAGES .................................................................. 125
SUBROGATORY RIGHT OF INSURER ................................... 140
TEMPERATE DAMAGES
THIN SKULL RULE .................................................................... 131
211
AUTHOR’S ACADEMIC
PROFILE
Ms. Largo is a graduate of Bachelor of Arts Major in Political

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

Tel. Nos. 736-05-67 • 735-13-64
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i
www.rexinteractive.com
Philippine Copyright, 2007
by
JOAN S. LARGO
ISBN 978-971-23-4880-8
No portion of this book may be copied or

reproduced in books, pamphlets, outlines or notes,
whether printed, mimeographed, typewritten, copied
in different electronic devices or in any other form, for
distribution or sale, without the written permission of
the author except brief passages in books, articles,
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Any copy of this book without the correspond-

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in possession of one who has no authority to dispose of
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ALL RIGHTS RESERVED

BY THE AUTHOR
No. ____________
Printed by
84 P. Florentino St., Quezon City
ii
Tel. Nos. 712-41-08 • 712-41-01
AUTHOR’S NOTE
TORTS AND DAMAGES are two very important legal concepts.

In this crowded world, the need for regulation in the conduct of our
professional and personal lives becomes increasingly real. In instances
where rights are transgressed and laws are violated, people turn to
courts for peaceful resolution of their conflicts. When they do, there
perhaps is no law as constantly invoked in every case, and in every
relief than our law on damages.
It is for good measure, then, that we see a growing tendency to
give much-deserved importance to these heretofore neglected areas of
law. Recent Bar Examinations show that more and more questions are
being asked in Civil Law on torts and damages. Recent cases, too, show
our own Supreme Court breaking new grounds in our laws on
negligence.
With this newly-gained attention on the subjects came the author’s
felt need to write this humble treatise. The objective is to present torts
and damages comprehensively while adhering to their teachable limits.
This is, thus, an endeavor to state, with brevity and with accuracy, the
fundamental principles governing tort litigations in the Philippines and
the claims for damages, so that the reader may have a handy yet
credible reference on the subject.
In this book, the essential concepts of torts and damages are
presented using and analyzing cases decided by the Philippine Supreme
Court from 1901 to 2006. In less-visited areas in torts such as medical
malpractice and product liability torts, wealth of information is drawn
from foreign decisions and commentaries.
The book opens with a discussion of the fundamental principles
in torts. Tort is inherently a common law concept. It is largely comprised
of judicial opinions. It is, in this sense, pervasive. It can be any wrongful
conduct or omission, for as long as there is no pre-existing contract
between parties. The distinguishing mark of a tort action, then, is that
it is not based on agreement between parties, but on the prescriptions
of law or community as applied or interpreted by the judge.
iii
However, since the Philippines is a civil law country, tort here is
viewed to be that rule of conduct which our legislature prescribes,
supplemented by the interpretations made by our Supreme Court in
appropriate cases presented before it.
Thus, our principal concept of torts is that which is ordained in
Article 2176 of our Civil Code as an act or omission, founded on
negligence, causing damage to another where there is no pre-existing
contractual obligations between parties. Tort, here, is essentially based
on negligent act or omission and cannot generally cover intentional acts,
in view of the limiting definition of Article 2176 of the Code. Unlike in
the United States, tort in the Philippines cannot cover any wrong; its
scope is limited to cases anchored on negligence. The only commonality
shared with the common law concept of torts is that our tort action is
based not on contractual breach and presupposes that there is no pre-
existing contracts between parties. Thus, it was once postulated that
common law torts is more comprehensive than ours.
However, in the course of our jurisprudential development, we
have seen how courts use with greater assertiveness our provisions of
civil law governing human relations. Intentional breaches of the rules
of good morals and customs were considered special torts. Hence, in
modern times, our Supreme Court was bold enough to declare that our
law on civil wrongs has become “much more supple and adaptable than
the Anglo-American law on torts” (Baksh vs. Court of Appeals, et al.,
G.R. No. 97336, February 19, 1993).
Our courts have also boldly entered the uncharted territories of
strict liability torts (also known strict liability in torts), rules on products
liability and such kindred torts as medical malpractice/negligence.
Alongside with this growth in our substantive law on torts are the
changes in the manner of litigating a tort action.
Fully cognizant of these changes, this book has endeavored to
present both these substantive and procedural developments. In the main,
then, this book aims to present torts in both the substantive and
procedural form so that the torts students will learn how the substance
and procedure relate to and influence each other. It endeavors to follow
and trace the steps taken by law practitioner when espousing or
defending a tort action. In discussing the general concept of torts
(Chapter 1), an extended discussion is made between three remedies
commonly involving negligence, to wit, culpa aquiliana, culpa criminal
and culpa contractual. Afterwhich, the book focused on elements of
quasi-delict which are negligence and proximate cause (Chapter 2).
Discussion then follows on who may be made liable in a tort action,
iv
vicariously or otherwise (Chapter 3), and the possible defenses that
these defendants may raise (Chapter 4). Then, in the event that these
defenses are unavailing, the next question tackled is how does one bring
a case for tort and what are the ways and devices that may be employed
in enforcing this right of action (Chapter 5). After presenting these
important principles and considerations in a pure tort action, such special
topics as strict liability torts (Chapter 6), special torts (Chapter 7) and
kindred torts of medical malpractice (Chapter 8) are then discussed.
As in common law countries, our “strict liability torts” refer to the
peculiar brand of torts that connote wrongs that law will remedy
despite the absence of negligence. The mere doing of the act that causes
harm creates a cause of action in view of the public policy involved in
the nature of the activity.
Special torts, on the other hand, are such because they are not
negligence-based. They are intentional acts that violate the fundamental
precepts of human relations.
The exposition on torts closes with a discussion on medical
malpractice which has gained prominence in the fairly-recent past. As
this is a branch of torts that is yet to be fully-developed, the author drew
heavily from the commentaries and jurisprudence of foreign scholars
and courts.
The book on damages is intended to be an extensive exposition
of the governing laws, principles and jurisprudence on damages. As
with the author’s work on torts, the inputs were drawn heavily from
the works of our Supreme Court from 1901 to present.
In cases where Philippine cases abound, the discussion was
subordinated to the exposition of established rules, principles and
jurisprudence as announced by our own courts, even as neither history
nor the foreign jurisprudence on the subject has been ignored. There is
a conscious effort to avoid putting in the author’s personal views,
realizing fully that in this country, only the words of the Supreme Court
have “binding effect” on the readers. References to the writings and
decisions of US Supreme Court and of foreign writers were made, but
only in few areas where there is dearth of Philippine jurisprudence.
Over-all, this is an attempt to present torts and damages in the words
of our very own Supreme Court. To make the book as useful yet as brief
as possible, recent cases have been preferred to older ones, except when
the older cases offer discussion on the principle and authorities that is
equally valuable.
Unlike existing work on the subject, this book is not intended to
be a digest of reported decisions. Instead, this is a concise presentation
v
of legal principles on quasi-delict and damages achieved by briefly
expounding the law as set forth in judicial decisions and referring only
to those cases which bear directly and helpfully upon the topics to
which they are cited. This book also differs in the manner and order or
sequence of presenting the established principles on quasi-delict and
damages based on the encounters with the students in the academe.
This, after all, is a law student’s book for learning what lawyers need
to know in practicing in the field of torts. As to form or presentation,
this book is written in numbered paragraph form, a personal preference.
Seeing the fulfillment of a dream and the partial completion of a
teacher’s mission, there are just some words that must not go unsaid,
and these are thank you. Thanks to my husband, our Ayen, and family.
Things happen only because I have them. Thanks, too, to my boss, Atty.
Bernardito A. Florido, for the genuine support and kind understanding.
Thanks to University of San Carlos for the constant inspiration. Thanks
to Fr. Ranhilio C. Aquino, Dean of San Beda Graduate School of Law,
for opening the door, and to Justice Jose C. Vitug, my book adviser, for
taking me here. To you both, great minds in extremely humble hearts,
my eternal gratitude. Most importantly, thanks to Him. Now that the
mist has been lifted, I see the humbling power of His daily Grace.
vi
TABLE OF CONTENTS
OUTLINE Page
I. QUASI-DELICT
AUTHOR’S NOTE ...................................................................... iii
CHAPTER 1. INTRODUCTORY CONCEPTS ................... 1
CHAPTER 2. ELEMENTS OF QUASI-DELICT ................. 23
CHAPTER 3. NATURE OF LIABILITY .............................. 37
CHAPTER 4. DEFENSES IN AN ACTION FOR
QUASI-DELICT .............................................. 72
CHAPTER 5. ENFORCEMENT OF LIABILITY ................ 86
CHAPTER 6. STRICT LIABILITY TORTS .......................... 94
CHAPTER 7. SPECIAL TORTS ............................................ 102
CHAPTER 8. KINDRED TORTS .......................................... 110
II. DAMAGES
CHAPTER 1. INTRODUCTORY CONCEPTS ................... 124
CHAPTER 2. ACTUAL DAMAGES .................................... 127
CHAPTER 3. MORAL DAMAGES ...................................... 141
CHAPTER 4. NOMINAL DAMAGES ................................ 168
CHAPTER 5. TEMPERATE DAMAGES ............................. 172
CHAPTER 6. LIQUIDATED DAMAGES ........................... 176
CHAPTER 7. EXEMPLARY DAMAGES ............................ 178
CHAPTER 8. ASSESSMENT OF DAMAGES .................... 187
APPENDICES ........................................................................................ 193

SUBJECT INDEX .................................................................................. 205
SUB-OUTLINE
AUTHOR’S NOTE
I. QUASI-DELICT
CHAPTER 1. INTRODUCTORY CONCEPTS
Definition of Quasi-delict ................................. 1
Quasi-delict distinguished from torts .............. 2
Elements of Quasi-delict ................................... 3
vii
criminal ................................................... 5
Pre-existing contract generally bars
quasi-delict .............................................. 14
Exceptions ......................................................... 15
contractual ............................................... 16
Special Issues .................................................... 18
CHAPTER 2. ELEMENTS OF QUASI-DELICT
Definition of Negligence ................................... 23
Test to determine existence of negligence ......... 24
Degrees of Negligence ....................................... 25
Nature of the concept ........................................ 25
Factors to be considered .................................... 28
Definition of proximate cause ........................... 29
Concurrence of efficient causes ......................... 30
Burden of proof ................................................. 31
Presumptions of negligence .............................. 32
Definition of Res ipsa loquitur ......................... 33
CHAPTER 3. NATURE OF LIABILITY
Liability of tortfeasors ....................................... 37
Doctrine of Vicarious Liability ......................... 38
Rationale ....................................................... 38
Vicarious liability of parents ............................ 40
Vicarious liability of guardians ........................ 43
Vicarious liability of employers ........................ 43
Distinctions between employer’s vicarious
liability under Art. 2180 of NCC
and employer’s subsidiary liability
under Art. 100 of RPC ........................... 56
Vicarious liability of owner of vehicle .............. 60
Vicarious liability of State ................................ 60
Provinces, cities and municipalities ................. 62
Vicarious liability of teachers and owners
of schools of arts and trade ..................... 64
Liability of proprietor of building ..................... 71
CHAPTER 4. DEFENSES IN AN ACTION FOR
QUASI-DELICT
Plaintiff’s own negligence ................................ 72
Theory of implied invitation ................... 73
viii
Doctrine of Attractive Nuisance ............. 74
Assumption of risk ............................................ 75
Doctrine of last clear chance ............................ 77
Emergency Rule ................................................ 79
Prescription ....................................................... 81
Diligence of good father of family .................... 81
Doctrine of contributory negligence ................. 82
Contributory negligence distinguished from
doctrine of last clear chance .................... 83
CHAPTER 5. ENFORCEMENT OF LIABILITY

Available remedies ............................................. 86
Rules governing requirement on
reservation of independent civil action ... 87
Nature of liability ............................................. 92
CHAPTER 6. STRICT LIABILITY TORTS

Definition and rationale ................................... 94
Liability of possessor of animals ....................... 94
Liability of manufacturers and processors
of foodstuffs, etc. ...................................... 95
Liability of head of family ................................. 100
CHAPTER 7. SPECIAL TORTS
Definition ....................................................... 102
Abuse of Right Principle .................................. 102
Cases under Art. 21 of NCC ............................ 103
“Emotional distress’’ tort action ....................... 106
Cases under Art. 26 of NCC ............................ 108
Interference with contractual relations ............ 109
CHAPTER 8. KINDRED TORTS
Medical Malpractice/Medical Negligence ........ 110
Elements of Medical Negligence ...................... 112
Error in Judgment rule ..................................... 115
Evidential rules ................................................. 115
Liability of hospitals .......................................... 118
Special or limited practitioners ........................ 121
Legal Malpractice .............................................. 122
Liability of directors and trustees of
corporation ............................................... 122
A word on nuisance .......................................... 123
ix
II. DAMAGES
CHAPTER 1. INTRODUCTORY CONCEPTS
Definition of damages ....................................... 124
Distinctions with other concepts ...................... 124
Rationale ....................................................... 125
General and special damages ............................ 125
CHAPTER 2. ACTUAL DAMAGES
Definition ....................................................... 127
Requirements for the grant of actual
damages ................................................... 128
Components of actual damages ........................ 129
In contracts and quasi-contracts ............ 130
In quasi-delicts ........................................ 131
In crimes .................................................. 131
Interest ..................................................... 136
Attorney’s fees ......................................... 138
Subrogatory right of the insurer ...................... 140
CHAPTER 3. MORAL DAMAGES
Nature and concept ........................................... 141
Requirements for the grant of moral
damages ................................................... 142
Instances where moral damages may
be recovered ............................................. 144
In seduction ............................................. 144
In quasi-delict .......................................... 144
In rape ..................................................... 145
In defamation ........................................... 145
Doctrine of fair comment .............. 147
Public Figure ................................. 149
Group libel ..................................... 150
Malicious prosecution ............................. 152
Art. 19, 20, 21 of NCC ..................................... 157
Breach of promise to marry ..................... 158
Culpa contractual cases .................................... 159
Analogous cases ................................................ 163
General rule on moral damages in favor
of corporation .......................................... 166
Exception ....................................................... 167
CHAPTER 4. NOMINAL DAMAGES
x
Instances where nominal damages are
adjudicated ............................................... 169
CHAPTER 5. TEMPERATE DAMAGES
Instances where temperate damages
are adjudicated ......................................... 174
CHAPTER 6. LIQUIDATED DAMAGES
Definition of liquidated damages ...................... 176
CHAPTER 7. EXEMPLARY DAMAGES
Requisites for the award of exemplary
damages ................................................... 178
Rationale for the award of exemplary
damages ................................................... 179
Instances where exemplary damages
are adjudicated ......................................... 179
CHAPTER 8. ASSESSMENT AND MITIGATION OF
DAMAGES
Guiding principle .............................................. 187
In crimes ....................................................... 187
In quasi-delict ................................................... 190
In quasi-contracts ............................................. 190
Doctrine of avoidable consequences .................. 190
Judgment on the pleadings ............................... 190
Good faith not a defense in violation of
constitutional rights ................................ 191
APPENDICES
CIVIL CODE PROVISIONS ON QUASI-DELICT ................. 193
CIVIL CODE PROVISIONS ON DAMAGES ......................... 197
SUBJECT INDEX ......................................................................... 205
xi

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1

1. TORTS in common law cover all wrongful Definition

3. The Philippines is a civil law country. Our

6. Quasi-delict, known in Spanish legal treatises

tric Company, 16 Phil. 8; Vergara vs. Court of Appeals, G.R.

and individuality that is entirely apart and independent

(c) that delicts are not as broad as quasi-delicts, because

20. In other words, “the same act or omission

Code while the civil case is based on culpa aquiliana ac-

33, 34 and 2176 of the Civil Code are no longer “deemed

334, 345 and 2176 of the Civil Code.

(13) The right to take part in a peaceable assembly to petition

may give rise to two separate civil liabilities on the part

not apply to independent civil actions based on Articles

The first type of liability is governed by Articles

ployer primarily liable for tortious acts of its employees

Thus, in a case involving a stabbing incident in-

ing of quasi-delict. “Otherwise put, liability for quasi-delict

“The difference is that [in culpa aquiliana], “culpa

tract, the action can be prosecuted merely by proving

files two separate cases, one founded on culpa aquiliana

Even in the earlier case of Vda de Severo et al. vs. Go,

caused by negligence or willful acts of their employees.

1. Going by definition of quasi-delict under Negligence

March, 1901; 2 March, 1904; 7 February, 1905; 16 June,

anything that indicates unusual or peculiar danger. Also,

13. “A coachman or driver, who had driven the

“electricity is an agency, subtle and deadly.” The mea-

19. Mere intoxication is not negligence, nor does

an ordinary prudent and intelligent person, have rea-

without the negligence or wrongful acts of the other con-

ligence of any kind, no damages can be recovered by

It is disputably presumed that a driver was negli-

36. In this jurisdiction, we have applied this doc-

from the doctrine cannot be availed of, or is overcome,

tial evidence of negligence when direct evidence is lack-

1. The responsibility of two or more persons Liability of

reserves his rights against the others. The third provides

liable for their conduct.” (Cangco vs. Manila Railroad Co.,

Court of Appeals, G.R. No. 115024 & 117944, February 7,

der, or over 9 but under 15 years of age who acted with-

years.’’ [But] nothing in this Code shall be construed to

18. Guardians are liable for damages caused by Vicarious

or on the occasion of their functions, while the fifth para-

Corp. v. Court of Appeals, 223 SCRA 521, 539 [1993]. At

of duty to passengers, is the result of the former’s con-

25. In Campo vs. Camarote, the basis of the pre-

done by an employee, in furtherance of the interests of

actually reaches home. However, even if the employee

school in exchange for free tuition. Funtecha worked for

graph of Article 2180 of the Civil Code which provides

employer can prove there was no negligence on his part

38. Employers have the burden of proving that

with any other evidence, object or documentary, which

stantiated and self-serving testimonies were, without

already mentioned because he himself may be regarded

Revised Penal Code, for civil liability ex delicto; or

the same act or omission” or under both causes. Since

and limits of the obligation. Although liability under

Vicarious 55. But “in motor vehicle mishaps, the owner is

59. The liability of the State has two aspects,

by the same Law 3, Title 15, Partida 7, on that the person

municipalities . . . liable for damages for the death of, or