J. NEGLIGENCE OF SELECTED BUSINESS CORPORATIONS SCHOOLS G.R. No.

84698 February 4, 1992 PHILIPPINE SCHOOL OF BUSINESS ADMINISTRATION, JUAN D. LIM, BENJAMIN P. PAULINO, ANTONIO M. MAGTALAS, COL. PEDRO SACRO and LT. M. SORIANO, petitioners, vs. COURT OF APPEALS, HON. REGINA ORDOEZ-BENITEZ, in her capacity as Presiding Judge of Branch 47, Regional Trial Court, Manila, SEGUNDA R. BAUTISTA and ARSENIA D. BAUTISTA, respondents. FACTS: A stabbing incident on 30 August 1985 which caused the death of Carlitos Bautista while on the second-floor premises of the Philippine School of Business Administration (PSBA) prompted the parents of the deceased to file suit in the Regional Trial Court of Manila (Branch 47) presided over by Judge Regina Ordoez-Benitez, for damages against the said PSBA and its corporate officers. At the time of his death, Carlitos was enrolled in the third year commerce course at the PSBA. It was established that his assailants were not members of the school's academic community but were elements from outside the school. Specifically, the suit impleaded the PSBA and several school authorities, including the chief of security and his assistant chief. The private respondents sought to adjudge them liable for their sons death due to the t heir negligence, reckless and lack of security precautions, means and methods before, during and after the attack on the victim. The petitioners alleged that the complaint against them has no cause of action given that PSBA is an academic institution. And academic institution is beyond the ambit of rule as provided by Article 2180 of the Civil Code. The trial court ruled in favor of the respondents and on appeal, the appellate court ruled the same. ISSUE: Whether or not the liability of the school and the authorities is based on quasi-delict. RULING: NO. The liability is based on the students and the schools contractual relations. Contractual Relations of students and the school When an academic institution accepts students for enrollment, there is established a contract between them, resulting in bilateral obligations which both parties 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 observe its rules and regulations. Institutions of learning must also meet the implicit or "built-in" obligation of providing their students with an atmosphere that promotes or assists in attaining its primary undertaking of imparting knowledge. Certainly, no student can absorb the intricacies of physics or higher mathematics or explore the realm of the arts and other sciences when bullets are flying or grenades exploding in the air or where there looms around the school premises a constant threat to life and limb. Necessarily, the school must ensure that adequate steps are taken to maintain peace and order within the campus premises and to prevent the breakdown thereof. Because the circumstances of the present case evince a contractual relation between the PSBA and Carlitos Bautista, the rules on quasi-delict do not really govern. A perusal of Article 2176 shows that obligations arising from quasi-delicts or tort, also known as extra-contractual obligations, arise only between parties not otherwise bound by contract, whether express or implied. However, this impression has not prevented this Court from determining the existence of a tort even when there obtains a contract. Non-applicability of Article 2180 and 2176 Article 2180, in conjunction with Article 2176 of the Civil Code, establishes the rule of in loco parentis. Article 2180 plainly provides that the damage should have been caused or inflicted by pupils or students of the educational institution sought to be held liable for the acts of its pupils or students while in its custody. However, this material situation does not exist in the present case for, as earlier indicated, the assailants of Carlitos were not students of the PSBA, for whose acts the school could be made liable. In comparison with Air France vs Carrascoso In Air France vs. Carrascoso (124 Phil. 722), the private respondent was awarded damages for his unwarranted expulsion from a first-class seat aboard the petitioner airline. It is noted, however, that the Court referred to the petitioner-airline's liability as one arising from tort, not one arising from a contract of carriage. In effect, Air France is authority for the view that liability from tort may exist even if there is a contract, for the act that breaks the contract may be also a tort. This view was not all that revolutionary, for even as early as 1918, this Court was already of a similar mind. In Cangco vs. Manila Railroad (38 Phil. 780), Mr. Justice Fisher elucidated thus: The field of non-contractual obligation is much broader than that of contractual obligation, comprising, as it does, the whole extent of juridical human relations. These two fields, figuratively speaking, concentric; that is to say, the mere fact that a person is bound to another by contract does not relieve him from extra-

contractual liability to such person. When such a contractual relation exists the obligor may break the contract under such conditions that the same act which constitutes a breach of the contract would have constituted the source of an extra-contractual obligation had no contract existed between the parties. Immediately what comes to mind is the chapter of the Civil Code on Human Relations, particularly Article 21, which provides: Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good custom or public policy shall compensate the latter for the damage. (emphasis supplied). Air France penalized the racist policy of the airline which emboldened the petitioner's employee to forcibly oust the private respondent to cater to the comfort of a white man who allegedly "had a better right to the seat." Breach of Contract not yet proven in the present case In the circumstances obtaining in the case at bar, however, there is, as yet, no finding that the contract between the school and Bautista had been breached thru the former's negligence in providing proper security measures. This would be for the trial court to determine. And, even if there be a finding of negligence, the same could give rise generally to a breach of contractual obligation only. Using the test of Cangco, supra, the negligence of the school would not be relevant absent a contract. In fact, that negligence becomes material only because of the contractual relation between PSBA and Bautista. In other words, a contractual relation is a condition sine qua non to the school's liability. The negligence of the school cannot exist independently of the contract, unless the negligence occurs under the circumstances set out in Article 21 of the Civil Code. This Court is not unmindful of the attendant difficulties posed by the obligation of schools, above-mentioned, for conceptually a school, like a common carrier, cannot be an insurer of its students against all risks. This is specially true in the populous student communities of the socalled "university belt" in Manila where there have been reported several incidents ranging from gang wars to other forms of hooliganism. It would not be equitable to expect of schools to anticipate all types of violent trespass upon their premises, for notwithstanding the security measures installed, the same may still fail against an individual or group determined to carry out a nefarious deed inside school premises and environs. Should this be the case, the school may still avoid liability by proving that the breach of its contractual obligation to the students was not due to its negligence, here 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. PETITION DENIED. The case is reverted back to the trial court for further proceedings.

G.R. No. 150920

November 25, 2005

CHILD LEARNING CENTER, INC. and SPOUSES EDGARDO L. LIMON and SYLVIA S. LIMON, vs. TIMOTHY TAGARIO, assisted by his parents BASILIO TAGORIO and HERMINIA TAGORIO ,

FACTS: Timothy Tagoria was a grade IV student at Marymount School, an academic institution operated and maintained by Child Learning Center, Inc. (CLC). One afternoon, he found himself locked inside the boys comfort room in Marymount. He started to panic so he banged and kicked the door and yelled for help. No help arrived. He then decided to open the window to call for help. As he opened the window, Timothy went right through and fell down three stories. Timothy was hospitalized and given medical treatment for serious multiple physical injuries. He, assisted by his parents, filed a civil action against the CLC, the members of its Board of Directors which includes the Spouses Limon. They claim that the school was negligent for not installing iron grills at the window of the boys comfort room. CLC, in its defense, maintained that there was nothing defective about the locking mechanism of the door and that the fall of Timothy was not due to its fault or negligence. CLC further maintained that it had exercised the due care and diligence of a good father of a family to ensure the safety, well-being and convenience of its students. The trial court ruled in favor of the respondents. The respondents proceeded their appeal to the Court of Appeals who affirmed the trial courts ruling in toto. ISSUE: Whether or not the school was negligent for the boys accidental fall. RULING: YES. In every tort case filed under Article 2176 of the Civil Code, plaintiff has to prove by a preponderance of evidence: (1) the damages suffered by the plaintiff; (2) the fault or negligence of the defendant or some other person for whose act he must respond; and (3) the connection of cause and effect between the fault or negligence and the damages incurred. In this tort case, respondents contend that CLC failed to provide precautionary measures to avoid harm and injury to its students in two instances: (1) failure to fix a defective door knob despite having been notified of the problem; and (2) failure to install safety grills on the window where Timothy fell from. During trial, it was found that the lock was defective. The architect witness testified that he did not verify if the doorknob at the comfort room was actually put in place. Further, the fact that Timothy fell out through the window shows that the door could not be opened from the inside.

That sufficiently points to the fact that something was wrong with the door, if not the door knob, under the principle of res ipsa loquitor. The doctrine of res ipsa loquitor applies where (1) the accident was of such character as to warrant an inference that it would not have happened except for the defendants negligence; (2) the accident must have been caused by an agency or instrumentality within the exclusive management or control of the person charged with the negligence complained of; and (3) the accident must not have been due to any voluntary action or contribution on the part of the person injured. Petitioners are clearly answerable for failure to see to it that the doors of their school toilets are at all times in working condition. The fact that a student had to go through the window, instead of the door, shows that something was wrong with the door. As to the absence of grills on the window, petitioners contend that there was no such requirement under the Building Code. Nevertheless, the fact is that such window, as petitioners themselves point out, was approximately 1.5 meters from the floor, so that it was within reach of a student who finds the regular exit, the door, not functioning. Petitioners, with the due diligence of a good father of the family, should have anticipated that a student, locked in the toilet by a non-working door, would attempt to use the window to call for help or even to get out. Considering all the circumstances, therefore, there is sufficient basis to sustain a finding of liability on petitioners part. Petitioners argument that CLC exercised the due diligence of a good father of a family in the selection and supervision of its employees is not decisive. Due diligence in the selection and supervision of employees is applicable where the employer is being held responsible for the acts or omissions of others under Article 2180 of the Civil Code. In this case, CLCs liability is under Article 2176 of the Civil Code, premised on the fact of its own negligence in not ensuring that all its doors are properly maintained. The Courts pronouncement that Timothy climbed out of the window because he could not get out using the door, negates petitioners other contention that the proximate cause of the accident was Timothys own negligence. The injuries he sustained from the fall were the product of a natural and continuous sequence, unbroken by any intervening cause, that originated from CLCs own negligence. PETITION DENIED.

BANKS G.R. No. 157845 September 20, 2005 PHILIPPINE NATIONAL BANK, Petitioners, vs. NORMAN Y. PIKE, Respondent. FACTS:

Complainant Pike often traveled to and from Japan as a gay entertainer in said country. Sometime in 1991, he opened U.S. Dollar Savings Account No. 0265-704591-0 with herein petitioner PNB Buendia branch for which he was issued a corresponding passbook. The complaint alleged in substance that before complainant Pike left for Japan on 18 March 1993, he kept the aforementioned passbook inside a cabinet under lock and key, in his home; that on 19 April 1993, a few hours after he arrived from Japan, he discovered that some of his valuables were missing including the passbook; that he immediately reported the incident to the police which led to the arrest and prosecution of a certain Mr. Joy Manuel Davasol; that complainant Pike also discovered that Davasol made two (2) unauthorized withdrawals from his U.S. Dollar Savings Account No. 0265-704591-0, both times at the PNB Buendia branch on the (1) March 31, 1993 for $3,500 and (2) April 5, 1993 for $4,000. Pike protested the unauthorized withdrawals and demanded for his money back, stating that the signatures in the withdrawal slips were clearly forged. The bank did not honor his complaint, telling him that it cannot return the money back without justifiable reasons. Norman Pike filed a civil action against the bank. The bank filed a motion to dismiss the case alleging that it was Norman Pike who authorized his talent manager and choreographer, Joy Davasol, to withdraw from his US account. He approached the Assitant Vice President Lawrence Bal and said that Joy shall present pre-signed withdrawal slips bearing Pikes signature every time she makes a withdrawal. The bank further alleged that Norman Pikes s ister on March 19, 1993 reported that her brothers passbook was stolen and requested for a hold order. Later Norman Pike through a letter requested (typewritten) for the hold order to be lifted so that he can withdraw his remaining balance. In the letter, he also promised the he shall not hold the bank responsible for the two unauthorized withdrawals made while his passbook was lost. Pikes counsel sent a letter to the bank, demanding it to credit back the unauthorized withdrawals. The bank replied that it cannot do so since the client has promised not to hold the bank liable for the withdrawals. Pikes counsel denied that his client made such promise. Trial ensued and the trial court found that the bank was indeed responsible for the unauthorized withdrawals since the alleged arrangement made by Pike with the bank was not a prpoper procedure, making it appear that the person owning the account was the one making a withdrawal (through the pre-signed withdrawal slips) but instead it was another person who is actually withdrawing. Also, it was found that the signatures in the deposit slips and the real signature of Pike were not the same. Thus, the court was convinced that the bank was negligent. The Court of Appeals affirmed the ruling of the RTC, ordering the refund of $7,500 plus interests and damages. ISSUE: Whether or not the bank was negligent. RULING: YES. The pre-signed withdrawal slips do not constitute the normal procedure with respect to withdrawals by representatives. This should have put the PNB employees on guard. Rather than readily validating and permitting said withdrawals, they should have proceeded more

cautiously. Clearly, petitioner banks employee, Lorenzo T. Bal, an Assistant Vice President at that, was exceedingly careless in his treatment of respondent Pikes savings account. From the foregoing, the evidence clearly showed that the petitioner bank did not exercise the degree of diligence that it ought to have exercised in dealing with their clients. With banks, the degree of diligence required, contrary to the position of petitioner PNB, is more than that of a good father of a family considering that the business of banking is imbued with public interest due to the nature of their functions. The stability of banks largely depends on the confidence of the people in the honesty and efficiency of banks. Thus, the law imposes on banks a high degree of obligation to treat the accounts of its depositors with meticulous care, always having in mind the fiduciary nature of banking. Section 2 of Republic Act No. 8791, which took effect on 13 June 2000, makes a categorical declaration that the State recognizes the "fiduciary nature of banking that requires high standards of integrity and performance. The fiduciary relationship means that the banks ob ligation to observe "highest standards of integrity and performance" is deemed written into every deposit agreement between a bank and its depositor. The fiduciary nature of banking requires banks to assume a degree of diligence higher than that of a good father of a family. Article 1172 of the New Civil Code states that the degree of diligence required of an obligor is that prescribed by law or contract, and absent such stipulation then the diligence of a family. In every case, the depositor expects the bank to treat his account with the utmost fidelity, whether such accounts consist only of a few hundred pesos or of millions of pesos. PETITION DENIED. FIREARMS DEALER Pacis vs Morales, supra. SECURITY AENCY AND GUARDS G.R. No. 148923. August 11, 2005 VICENTE LAMIS and SANDIGAN PROTECTIVE & INVESTIGATION AGENCY, INC., Petitioners, vs. DAVID Y. ONG, Respondent. FACTS: Sandigan Protective and Investigation Agency, Inc. (Sandigan), petitioner, was the security agency providing security services at the Manila Chinese Cemetery. The visiting hours were at 6:00 a.m. to 6:00 p.m. Sandigan instructed the security guards not to allow any one to enter the cemetery from 6:00 p.m. to 6:00 a.m.

On September 20, 1994, Vicente Lamis, also a petitioner, was the guard assigned at the south gate of the cemetery for the 6:00 p.m. to 6:00 a.m. slot. Around 3:00 in the morning, a Mitsubishi Lancer, with a PSM 679 plate, driven by David Y. Ong, herein respondent, arrived at the south gate of the cemetery. He beeped his car and continued doing so, but Lamis did not open the gate. Eventually, he went outside the gate and informed respondent that being beyond visiting hours, he cannot enter the cemetery. Suddenly, respondent accelerated the speed of his car, trying to enter the cemetery. This irked Lamis. He closed the gate and took a shot gun entrusted to him by one of the roving guards. About thirty minutes thereafter, respondents car returned at full speed toward the closed gate where Lamis was standing. He fired a warning shot but respondent did not stop his car. Lamis fired another warning shot. Respondent then alighted from his car. Seeing it was closed, he got inside the car, but before he could do so, Lamis shot him, hitting his right arm, left hip, and right waist. He managed to drive to the Chinese General Hospital where he was examined and treated. Thereafter, the hospital guard reported the incident to the police who immediately conducted an investigation. Petitioner Sandigan conducted its own investigation but did not turn over to the police the firearm used by Lamis. Vincent filed a criminal case against Lamis for frustrated homicide and a civil case against Lamis and the security agency for damages. Lamis, on the other hand, that he shot Vincent for selfdefense. The trial court ruled that Lamis was negligent thus, ordering him and the security agency liable. On appeal, the appellate court affirmed the trial courts judgment, holding that the acts of Lamis were not the result of negligence but were deliberate and intentional. Sandigan, as the employer, also failed to prove that it exercised due diligence in the selection and supervision of its security guards. ISSUE: Whether the acts of Lamis and Sandigan were acts of negligence. RULING: As to LAMIS, NO. His acts were deliberate and intentional. Thus, as said by the Court of Appeals, Lamis contention of self-defense when he shot Vincent with TWO GUNS is barren of merit. However, he remains liable for shooting Victor Ong. As to Sandigan, YES. The Court emphasized the act of Lamis of shooting Vincent, which is a deliberate and intentional act, making Lamis and Sandigan jointly and severally liable. First it did not properly show that it had exercised due diligence in choosing and hiring its security guards. Further, it failed to adduce in evidence any copy of its Report on the shooting incident involving appellant Lamis. Neither did it surrender to the police authorities the .38 caliber gun and shotgun used by appellant Lamis in shooting the appellee. Article 2176 of the Civil Code provides that "Whoever by an act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. x x x." The obligation imposed by this Article is "demandable not only for ones own wrongful acts or

omissions, but also for those persons for whom one is responsible." Thus, petitioner Sandigan, being the employer of petitioner Lamis, is likewise liable for damages caused by the latter. PETITION DENIED. RESORT AND SWIMMING POOL OPERATORS G.R. No. L-7664 August 29, 1958

MR. AND MRS. AMADOR C. ONG, plaintiffs-appellants, vs. METROPOLITAN WATER DISTRICT, defendant-appellee. FACTS: Defendant owns and operates three recreational swimming pools at its Balara filters, Diliman, Quezon City, to which people are invited and for which a nominal fee of P0.50 for adults and P0.20 for children is charged. The main pool it between two small pools of oval shape known as the "Wading pool" and the "Beginners Pool." There are diving boards in the big pools and the depths of the water at different parts are indicated by appropriate marks on the wall. The care and supervision of the pools and the users thereof is entrusted to a recreational section composed of Simeon Chongco as chief, Armando Rule, a male nurse, and six lifeguards who had taken the life-saving course given by the Philippine Red Cross at the YMCA in Manila. For the safety of its patrons, defendant has provided the pools with a ring buoy, toy roof, towing line, saving kit and a resuscitator. There is also a sanitary inspector who is in charge of a clinic established for the benefit of the patrons. Defendant has also on display in a conspicuous place certain rules and regulations governing the use of the pools, one of which prohibits the swimming in the pool alone or without any attendant. Although defendant does not maintain a full-time physician in the swimming pool compound, it has however a nurse and a sanitary inspector ready to administer injections or operate the oxygen resuscitator if the need should arise. In the afternoon of July 5, 1952, at about 1:00 o'clock, Dominador Ong, a 14-year old high school student and boy scout, and his brothers Ruben and Eusebio, went to defendant's swimming pools. This was not the first time that the three brothers had gone to said natatorium for they had already been there four or five times before. They arrived at the natatorium at about 1:45 p.m. After paying the requisite admission fee, they immediately went to one of the small pools where the water was shallow. At about 4:35 p.m., Dominador Ong told his brothers that he was going to the locker room in an adjoining building to drink a bottle of coke. Upon hearing this, Ruben and Eusebio went to the bigger pool leaving Dominador in the small pool and so they did not see the latter when he left the pool to get a bottle of coke. In that afternoon, there were two lifeguards on duty in the pool compound, namely, Manuel Abao and Mario Villanueva. The tour of duty of Abao was from 8:00 to 12:00 in the morning and from 2:00 to 6:00 in the afternoon, and of Villanueva from 7:30 to 11:30 a.m. and from 12:30 to 4:30 p.m. Between 4:00 to 5:00 that afternoon, there were about twenty bathers

inside the pool area and Manuel Abao was going around the pools to observe the bathers in compliance with the instructions of his chief. Between 4:40 to 4:45 p.m., some boys who were in the pool area informed a bather by the name of Andres Hagad, Jr., that somebody was swimming under water for quite a long time. Another boy informed lifeguard Manuel Abao of the same happening and Abao immediately jumped into the big swimming pool and retrieved the apparently lifeless body of Dominador Ong from the bottom. The body was placed at the edge of the pool and Abao immediately applied manual artificial respiration. Soon after, male nurse Armando Rule came to render assistance, followed by sanitary inspector Iluminado Vicente who, after being called by phone from the clinic by one of the security guards, boarded a jeep carrying with him the resuscitator and a medicine kit, and upon arriving he injected the boy with camphorated oil. After the injection, Vicente left on a jeep in order to fetch Dr. Ayuyao from the University of the Philippines. Meanwhile, Abao continued the artificial manual respiration, and when this failed to revive him, they applied the resuscitator until the two oxygen tanks were exhausted. Not long thereafter, Dr. Ayuyao arrived with another resuscitator, but the same became of no use because he found the boy already dead. The doctor ordered that the body be taken to the clinic. In the evening of the same day, July 5, 1952, the incident was investigated by the Police Department of Quezon City and in the investigation boys Ruben Ong and Andres Hagad, Jr. gave written statements. On the following day, July 6, 1952, an autopsy was performed by Dr. Enrique V. de los Santos, Chief, Medico Legal Division, National Bureau of Investigation, who found in the body of the deceased the following: an abrasion on the right elbow lateral aspect; contusion on the right forehead; hematoma on the scalp, frontal region, right side; a congestion in the brain with petechial subcortical hemorrhage, frontal lobe; cyanosis on the face and on the nails; the lung was soggy with fine froth in the bronchioles; dark fluid blood in the heart; congestion in the visceral organs, and brownish fluid in the stomach. The death was due to asphyxia by submersion in water. The trial court ruled in favor of the respondent. ISSUE: Whether or not the death of minor Dominador Ong can be attributed to the negligence of defendant and/or its employees so as to entitle plaintiffs to recover damages. RULING: NO. The present action is governed by Article 2176 in relation to Article 2080 of the new Civil Code. The first article provides that "whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damages done." Such fault or negligence is called quasi-delict. Under the second article, this obligation is demandable not only for one's own acts or omissions but also for those of persons for whom one is responsible.

Since the present action is one for damages founded on culpable negligence, the principle to be observed is that the person claiming damages has the burden of proving that the damage is caused by the fault or negligence of the person from whom the damage is claimed, or of one of his employees (Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55 Phil., 517). The question then that arises is: Have appellants established by sufficient evidence the existence of fault or negligence on the part of appellee so as to render it liable for damages for the death of Dominador Ong? There is no question that appellants had striven to prove that appellee failed to take the necessary precaution to protect the lives of its patrons by not placing at the swimming pools efficient and competent employees who may render help at a moment's notice, and they ascribed such negligence to appellee because the lifeguard it had on the occasion minor Ong was drowning was not available or was attending to something else with the result that his help came late. Thus, appellants tried to prove through the testimony of Andres Hagad, Jr. and Ruben Ong that when Eusebio Ong and Hagad, Jr. detected that there was a drowning person in the bottom of the big swimming pool and shouted to the lifeguard for help, lifeguard Manuel Abao did not immediately respond to the alarm and it was only upon the third call that he threw away the magazine he was reading and allowed three or four minutes to elapse before retrieving the body from the water. This negligence of Abao, they contend, is attributable to appellee. But the claim of these two witnesses not only was vehemently denied by lifeguard Abao, but is belied by the written statements given by them in the investigation conducted by the Police Department of Quezon City approximately three hours after the happening of the accident. Thus, these two boys admitted in the investigation that they narrated in their statements everything they knew of the accident, but, as found by the trial, nowhere in said statements do they state that the lifeguard was chatting with the security guard at the gate of the swimming pool or was reading a comic magazine when the alarm was given for which reason he failed to immediately respond to the alarm. On the contrary, what Ruben Ong particularly emphasized therein was that after the lifeguard heard the shouts for help, the latter immediately dived into the pool to retrieve the person under water who turned out to be his brother. For this reason, the trial court made this conclusion: "The testimony of Ruben Ong and Andres Hagad, Jr. as to the alleged failure of the lifeguard Abao to immediately respond to their call may therefore be disregarded because they are belied by their written statements. (Emphasis supplied.) On the other hand, there is sufficient evidence to show that appellee has taken all necessary precautions to avoid danger to the lives of its patrons or prevent accident which may cause their death. Thus, it has been shown that the swimming pools of appellee are provided with a ring buoy, toy roof, towing line, oxygen resuscitator and a first aid medicine kit. The bottom of the pools is painted with black colors so as to insure clear visibility. There is on display in a conspicuous place within the area certain rules and regulations governing the use of the pools. Appellee employs six lifeguards who are all trained as they had taken a course for that purpose and were issued certificates of proficiency. These lifeguards work on schedule prepared by their chief and arranged in such a way as to have two guards at a time on duty to look after the

safety of the bathers. There is a male nurse and a sanitary inspector with a clinic provided with oxygen resuscitator. And there are security guards who are available always in case of emergency. The record also shows that when the body of minor Ong was retrieved from the bottom of the pool, the employees of appellee did everything possible to bring him back to life. Thus, after he was placed at the edge of the pool, lifeguard Abao immediately gave him manual artificial respiration. Soon thereafter, nurse Armando Rule arrived, followed by sanitary inspector Iluminado Vicente who brought with him an oxygen resuscitator. When they found that the pulse of the boy was abnormal, the inspector immediately injected him with camphorated oil. When the manual artificial respiration proved ineffective they applied the oxygen resuscitator until its contents were exhausted. And while all these efforts were being made, they sent for Dr. Ayuyao from the University of the Philippines who however came late because upon examining the body he found him to be already dead. All of the foregoing shows that appellee has done what is humanly possible under the circumstances to restore life to minor Ong and for that reason it is unfair to hold it liable for his death. Last clear chance doctrine applicable? NO. The record does not show how minor Ong came into the big swimming pool. The only thing the record discloses is that minor Ong informed his elder brothers that he was going to the locker room to drink a bottle of coke but that from that time on nobody knew what happened to him until his lifeless body was retrieved. The doctrine of last clear chance simply means that the negligence of a claimant does not preclude a recovery for the negligence of defendant where it appears that the latter, by exercising reasonable care and prudence, might have avoided injurious consequences to claimant notwithstanding his negligence. Or, "As the doctrine usually is stated, a person who has the last clear chance or opportunity of avoiding an accident, notwithstanding the negligent acts of his opponent or the negligence of a third person which is imputed to his opponent, is considered in law solely responsible for the consequences of the accident." Since it is not known how minor Ong came into the big swimming pool and it being apparent that he went there without any companion in violation of one of the regulations of appellee as regards the use of the pools, and it appearing that lifeguard responded to the call for help as soon as his attention was called to it and immediately after retrieving the body all efforts at the disposal of appellee had been put into play in order to bring him back to life, it is clear that there is no room for the application of the doctrine now invoked by appellants to impute liability to appellee. Before closing, we wish to quote the following observation of the trial court, which we find supported by the evidence: "There is (also) a strong suggestion coming from the expert evidence presented by both parties that Dominador Ong might have dived where the water was only 5.5 feet deep, and in so doing he might have hit or bumped his forehead against the bottom of the pool, as a consequence of which he was stunned, and which to his drowning. As

a boy scout he must have received instructions in swimming. He knew, or have known that it was dangerous for him to dive in that part of the pool."
DENIED.

THEATER G.R. No. L-87584 June 16, 1992 GOTESCO INVESTMENT CORPORATION, petitioner, vs. GLORIA E. CHATTO and LINA DELZA CHATTO, respondents. FACTS: The evidence shows that in the afternoon of June 4, 1982 plaintiff Gloria E. Chatto, and her 15year old daughter, plaintiff Lina Delza E. Chatto went to see the movie "Mother Dear" at Superama I theater, owned by defendant Gotesco Investment Corporation. They bought balcony tickets but even then were unable to find seats considering the number of people patronizing the movie. Hardly ten (10) minutes after entering the theater, the ceiling of its balcony collapsed. The theater was plunged into darkness and pandemonium ensued. Shocked and hurt, plaintiffs managed to crawl under the fallen ceiling. As soon as they were able to get out to the street they walked the nearby FEU Hospital where they were confined and treated for one (1) day. They soon filed a case against Gotesco. Defendant tried to avoid liability by alleging that the collapse of the ceiling of its theater was done due to force majeure. It maintained that its theater did not suffer from any structural or construction defect. The trial court ruled in favor of the respondent, ordering Gotesco to pay her damages. On appeal, the CA found the appeal to be without merit. Considering that Gotesco cannot prove that the collapse of the ceiling of the theater was a force majure event (given that the witness who investigated the collapsed balcony presented an architecture graduate but not licensed could not find the reason of the collapse). ISSUE: Whether or not Gotesco was negligent. RULING: YES. Petitioner could have easily discovered the cause of the collapse if indeed it were due to force majeure. To Our mind, the real reason why Mr. Ong could not explain the cause or reason is that either he did not actually conduct the investigation or that he is, as the respondent Court impliedly held, incompetent. He is not an engineer, but an architect who had not even passed the government's examination. Verily, post-incident investigation cannot be considered as material to the present proceedings. What is significant is the finding of the trial court, affirmed

by the respondent Court, that the collapse was due to construction defects. There was no evidence offered to overturn this finding. The building was constructed barely four (4) years prior to the accident in question. It was not shown that any of the causes denominates as force majeure obtained immediately before or at the time of the collapse of the ceiling. Such defects could have been easily discovered if only petitioner exercised due diligence and care in keeping and maintaining the premises. But as disclosed by the testimony of Mr. Ong, there was no adequate inspection of the premises before the date of the accident. His answers to the leading questions on inspection disclosed neither the exact dates of said. inspection nor the nature and extent of the same. That the structural designs and plans of the building were duly approved by the City Engineer and the building permits and certificate of occupancy were issued do not at all prove that there were no defects in the construction, especially as regards the ceiling, considering that no testimony was offered to prove that it was ever inspected at all. It is settled that: The owner or proprietor of a place of public amusement impliedly warrants that the premises, appliances and amusement devices are safe for the purpose for which they are designed, the doctrine being subject to no other exception or qualification than that he does not contract against unknown defects not discoverable by ordinary or reasonable means. This implied warranty has given rise to the rule that: Where a patron of a theater or other place of public amusement is injured, and the thing that caused the injury is wholly and exclusively under the control and management of the defendant, and the accident is such as in the ordinary course of events would not have happened if proper care had been exercised, its occurrence raises a presumption or permits of an inference of negligence on the part of the defendant. That presumption or inference was not overcome by the petitioner. Besides, even assuming for the sake of argument that, as petitioner vigorously insists, the cause of the collapse was due to force majeure, petitioner would still be liable because it was guilty of negligence, which the trial court denominated as gross. As gleaned from Bouvier's definition of and Cockburn's elucidation on force majeure for one to be exempt from any liability because of it, he must have exercised care, i.e., he should not have been guilty of negligence. DENIED. ELECTRIC AND POWER COMPANIES Agusan Norte Electric Coop. vs Balen et. al, supra