Quasi-Delict: Definition

Art. 2176: Fault or negligence of a person, who, by his act or omission, connected or unconnected with, but independent from, any
contractual relation, causes damage to another.

Elcano v. Hill: An act, whether punishable or not punishable by law, whether criminal or not criminal in character, whether
intentional or voluntary or negligent, which result in the damage to another.

Quasi-Delict v. Torts

QD is known as culpa-aquiliana is a civil law concept while Torts is Anglo-American or common law concept. Torts is broader than
culpa-aquiliana because it includes not only negligence, but intentional criminal acts as well. However, Article 21 with Art 19 and 20,
greatly broadened the scope of the law on civil wrongs; it has become more supple and adaptable than the Anglo-American law on
torts.

Quasi-Delict: Scope

Art. 2176 and Elcano v. Hill: covers not only punishable by law, but also criminal in character, whether intentional, voluntary, or
negligent.

Presence of pre-existing contract generally bars the applicability of the law on quasi-delict. However, Air France v. Carrascoso and
some other cases provides that the mere existence of a contract does not automatically negate the existence of quasi-delict xxx the
act that breaks the contract may also be tort. Air France is reiterated in PSBA vs. CA.

Types of Quasi-Delicts:

Intentional Torts: When the law tries to serve its highest purpose; to regulate the relations among men; to promote mutual respect,
dignity and justice.

Sea Commercial v. CA: Article 19 was intended to expand the concept of torts by granting adequate legal remedy for the untold
number of moral wrong which is impossible for human foresight to provide specifically in statutory law.

Elements of Abuse of Right

1. there is a legal right or duty
2. which is exercised in bad faith
3. for the sole intent of prejudicing or injuring another

Article 19 together with the succeeding articles on human relations was intended to embody certain basic principles that are to be
observed for the rightful relationship between human beings and for the stability of their social orders. (Sea Commercial supra)
Strict Liability Torts:

The rule on strict liability is said to be applicable in situations in which social policy requires the defendant make good the harm
which results to others from abnormal risks which are inherent in activities that are not considered blameworthy because they are
reasonably incident to desirable industrial activities.

Provisions:
1. 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 (Art. 2183)
2. Manufacturers and processors of foodstuffs, etc. (Art 2187)
3. RA 7394 or the Consumer Acts of the Philippines.
The product is defective when it does not offer the safety rightfully expected of it, taking relevant circumstances into consideration,
including but not limited to:
a. presentation of product
b. use and hazard reasonably expected of it
c. the time it was put into circulation
4. Head of the family that lives in a building is responsible for the damages causes by things thrown or falling from the same ( Art
2193)

Human Dignity

Refer to Jacutin v. People. GR No. 140604, March 6, 2002.

Art. 26 of NCC.

Nuisance

Refer to nuisance in property.

Scope: Public and private

Nature: per se and per accidense
Nuisance is the limitation of the use of property

Bengzon v. Province of Pangasinan: The pumping station should have foreseen the consequences of the construction of such station.
The duty shifted to pumping station that they should have thought that the construction may give damage to Bengzons.

Attractive Nuisance: Requisites

1. it must involve children
2. it must have dangerous instrumentality
3. there is a failure to take reasonable precaution

Attractive nuisance is an implied license to enter and a breach of duty.

Quasi-Delict: Person Responsible

Art. 2176: One who directly responsible for the damages is responsible, others are:
1. Father or mother with respect to the damages of their minor child.
2. Guardians with authority to minor child or incapacitated who lives with them
3. Owners and managers of the establishment with respect to employees
4. Employers
5. The State
6. Teachers or heads of establishment of arts and trades with respect to students

Schloendoerff doctrine regards a physician, even if employed by a hospital, as an independent contractor, because of his skill the
exercises and the lack of control exerted over his work. Under this doctrine, the hospital is exempt from the application of the
repondeat superior principle for fault or negligence committed by physician in the discharge of their profession. HOWEVER, Ramos
v. CA weakens this doctrine- hospitals are no longer exempt from universal rule of respondeat superior.

Doctrine of Corporate Negligence, hospitals have now the duty to make reasonable effort to monitor and oversee the treatment
prescribed and administered by physicians practicing in its premises.

Doctrine of ostensible agency- imposes liability upon hospital because of the hospitals actions as principal or as employer in
somehow misleading the public into believing that the relationship or the authority exists.

Quasi-Delict: Requisites

Taylor v. Manila Electric Co.:

1. Fault or negligence of the defendant
2. Damage suffered or incurred by plaintiff
3. The relation of cause and effect between the fault or negligence of the defendant and the damage incurred by the plaintiff.

Traditional Quasi-Delict: Elements

Art. 2176:
1. act or omission
2. damage or injury is caused to another
3. fault or negligence is present
4. no pre-existing contractual obligation
5. causal connection between damage done and act or omission

Quasi-Delict and Crime: Difference

Barredo v. Garcia:
1. Crimes affect public interest, while quasi-delict concerns only private concerns
2. The RPC punishes the criminal act, while NCC, by means of indemnification, merely repairs the damages incurred
3. Crimes are not broad as quasi-delicts, because the former are punished only if there is a law clearly covering them, while the latter
include all acts in which any kind of fault or negligence intervenes.

Quasi-Delict and Culpa contractual: Difference

Cangco v. Manila Railroad Co.: Culpa aquiliana (QD) the culpa is substantive and independent, which of itself constitutes the source
of an obligation between persons not formerly connected by any legal tie, while culpa contractual, culpa is considered as an accident
in the performance of an obligation already existing.

Test of Negligence

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)

Test: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinary prudent person
would have used in the same situation? If not he is guilty of negligence. (Roman Law paterfamilias).
CASES

Sea Commercial v. CA- discussion on Art. 19

Afialda v. Hisole- Defense in torts: Assumption of Risk
Jacutin v. People- Human Dignity
Bengzon v. Prov. Of Pangasinan- Nuisance
Taylor v. Manila Electric Co.- Attractive Nuisance
University of the East v. Jader- Art. 19
Uypitching v. Quiamco- Art. 20
Vestil v. IAC- Strict Liability Tort (Art. 2183)
Amonoy v. Gutierrez- Damnum absque injuria (not applied but discussed)
Albenson Enterprise v. CA- Art. 21 (not applied but cited)
Daywalt v. Corporacion- Intentional Tort, Culpable act, wrongful interference of third party in a contract (not applied)
Gilchrist v. Cuddy- Wrongful interference of a third party in a contract (applied), Intentional act
Wylie v. Rarang- Intentional act/ criminal act
Barredo v. Garcia- Independence of civil liability based on NCC from civil liability based on RPC
Elcano v. Hill- Civil action lays even the acquittal in criminal case
Dulay v. CA- Master servant rule
Air France v. Carrascoso- Bad faith, Exception in Art. 2176 as basis for quasi-delict, contractual breach may be subject to torts.
Tenchavez v. Escano- Bad faith
Civil Aeronautics v. CA- Bad faith
Mandarin Villa v. CA- Negligence, test in determining negligence
RCPI v. CA- Negligence
Metropolitan Bank v. CA- Deligence of a good pater familias

Negligence is defined as the failure to observe for the protection of the interests of another person that
degree of care, precaution, and vigilance which the circumstances justly demand, by reason of which such
other person suffers injury. The test to determine the existence of negligence in a particular case may be
stated as follows: Did the defendant in the performance of the alleged negligent act use reasonable care
and caution which an ordinary person would have used in the same situation? If not, then he is guilty of
negligence. The existence of negligence in a given case is not determined by reference to the personal
judgment of the actor in the situation before him. The law considers what would be reckless,
blameworthy, or negligent in the man of ordinary intelligence and prudence and determines liability by
that norm. (ANECO vs Belen)

Torts And Damages Case Digest: Amado Picart V. Frank

Smith (1918)
G.R. No. L-12219 March 15, 1918

Lessons Applicable: Negligence (Torts and Damages)

FACTS:

December 12, 1912: Amado Picart was riding on his pony over Carlatan Bridge, at San Fernando, La
Union
Before he had gotten half way across, the Frank Smith driving an automobile came from the opposite
direction at the rate of about 10-12 miles/hour
As Frank Smith neared the bridge he saw a horseman on it and blew his horn to give warning of his
approach.
 He continued his course and after he had taken the bridge he gave two more successive blasts, as it
appeared to him that the man on horseback before him was not observing the rule of the road
Amado saw the automobile coming and heard the warning signals
being perturbed by the novelty of the apparition or the rapidity of the approach, he pulled the pony
closely up against the railing on the right side of the bridge instead of going to the left because he
thought he did not have sufficient time to get over to the other side
The pony had not as yet exhibited fright, and the rider had made no sign for the automobile to stop
When he had gotten quite near, there being then no possibility of the horse getting across to the other
side, Frank quickly turned his car sufficiently to the right to escape hitting the horse alongside of the
railing but because it got close the horse became frightened and turned its body across the bridge with
its head toward the railing
The left hind leg was hit by the flange of the car and the limb was broken. The horse fell and its rider
was thrown off with some violence. As a result of its injuries the horse died. Amado received contusions
which caused temporary unconsciousness and required medical attention for several days.
ISSUE: W/N Frank was negligent in accordance to negligence tests

HELD: YES. lower court must be reversed, and judgment is her rendered that the plaintiff recover of the
defendant the sum of two hundred pesos (P200), with costs of other instances. The sum here awarded is
estimated to include the value of the horse, medical expenses of the plaintiff, the loss or damage occasioned
to articles of his apparel, and lawful interest on the whole to the date of this recovery. The other damages
claimed by the plaintiff are remote or otherwise of such character as not to be recoverable

Did the defendant in doing the alleged negligent act use that person would have used in the same
situation? If not, then he is guilty of negligence
The existence of negligence in a given case is not determined by reference to the personal judgment of
the actor in the situation before him.
The question as to what would constitute the conduct of a prudent man in a given situation must of
course be always determined in the light of human experience and in view of the facts involved in the
particular case
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
Conduct is said to be negligent when a prudent man in the position of the tortfeasor would have foreseen
that an effect harmful to another was sufficiently probable to warrant his foregoing conduct or guarding
against its consequences
It will be noted that the negligent acts of the two parties were not contemporaneous, since the
negligence of the defendant succeeded the negligence of the plaintiff (wrong side of the road) by an
appreciable interval.
Under these circumstances the law is that the person who has the last fair chance to avoid the
impending harm and fails to do so is chargeable with the consequences, without reference to the prior
negligence of the other party.

Proximate cause; definition. The Supreme Court rejected the argument of petitioners that the Court of Appeals failed to
consider in its entirety the testimony of the doctor who performed the autopsy. What really needs to be proven in a case
when the victim dies is the proximate cause of his death. Proximate cause has been defined as that cause, which, in natural
and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result
would not have occurred. The autopsy report indicated that the cause of the victims death is multiple organ failure.
According to Dr. Wilson Moll Lee, the doctor who conducted the autopsy, it can be surmised that multiple organ failure was
secondary to a long standing infection secondary to a stab wound which the victim allegedly sustained. Thus, it can be
concluded that without the stab wounds, the victim could not have been afflicted with an infection which later on caused
multiple organ failure that caused his death. The offender is criminally liable for the death of the victim if his delictual act
caused, accelerated or contributed to the death of the victim. Rodolfo Belbis Jr. y Competente and Alberto Brucales v.
People of the Philippines, G.R. No. 181052, November 14, 2012.

Custudio vs CA Damnum Absque Injuria

There 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 without injury in those instances in which the loss or harm was not the
result of a violation of a legal duty. These situations are often called damnum absque injuria.9

In order that a plaintiff 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. 10 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 the breach of some duty and the
imposition of liability for that breach before damages may be awarded; it is not sufficient to state that there should be
tort liability merely because the plaintiff suffered some pain and suffering. 11

Many accidents occur and many injuries are inflicted by acts or omissions which cause damage or loss to another but
which violate no legal duty to such other person, and consequently create no cause of action in his favor. 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. 12

In other words, in order that the law will give redress for an act causing damage, that act must be not only hurtful, but
wrongful. There must be damnum et injuria.13 If, as may happen in many cases, a person sustains actual damage,
that is, harm or loss to his person or property, without sustaining any legal injury, that is, an act or omission which the
law does not deem an injury, the damage is regarded as damnum absque injuria

Singson vs BPI

23 SCRA 1117

FACTS: Singson, was one of the defendants in a civil case, in which judgment had been rendered sentencing him and his
co-defendants therein Lobregat and Villa-Abrille & Co., to pay a sum of money to the plaintiff therein. Said judgment became
final and executory as only against Ville-Abrille for its failure to file an appeal. A writ of garnishment was subsequently
served upon BPI in which the Singsons had a current account insofar as Villa-Abrilles credits against the Bank were
concerned.
Upon receipt of the said Writ of Garnishment, a clerk of the bank, upon reading the name of the Singson in the title of the
Writ of Garnishment as a party defendants, without further reading the body and informing himself that said garnishment
was merely intended for the deposits of defendant Villa-Abrille & Co., et al, prepared a letter informing Singson of the
garnishment of his deposits by the plaintiff in that case.

Subsequently, two checks issued by the plaintiff Julian C. Singson, one in favor of B. M. Glass Service and another in favor
of the Lega Corporation, were dishonored by the bank. B. M. Glass Service then wrote to Singson that the check was not
honored by BPI because his account therein had already been garnished and that they are now constrained to close his
credit account with them.

Singson wrote to BPI, claiming that his name was not included in the Writ of Execution and Notice of Garnishment, which
was served upon the bank. The defendants lost no time to rectify the mistake that had been inadvertently committed.
Thus this action for damages.

ISSUE: WON the existence of a contract between the parties bars a plaintiffs claim for damages based on torts?
HELD: NO. The existence of a contract between the parties does not bar the commission of a tort by the one against the
order and the consequent recovery of damages therefore. Indeed, this view has been, in effect, reiterated in a comparatively
recent case. Thus, in Air France vs. Carrascoso, 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 latters part, for, although the relation
between a passenger and a carrier is contractual both in origin and nature the act that breaks the contract may also be a
tort.
In view, however, of the facts obtaining in the case at bar, and considering, particularly, the circumstance, that the wrong
done to the plaintiff was remedied as soon as the President of the bank realized the mistake he and his subordinate
employee had committed, the Court finds that an award of nominal damages the amount of which need not be proven
in the sum of P1,000, in addition to attorneys fees in the sum of P500, would suffice to vindicate plaintiffs rights.

Air France vs. Carrascoso

In March 1958, Rafael Carrascoso and several other Filipinos were tourists en route to Rome from Manila.
Carrascoso was issued a first class round trip ticket by Air France. But during a stop-over in Bangkok, he was asked
by the plane manager of Air France to vacate his seat because a white man allegedly has a better right than him.
Carrascoso protested but when things got heated and upon advise of other Filipinos on board, Carrascoso gave up
his seat and was transferred to the planes tourist class.
After their tourist trip when Carrascoso was already in the Philippines, he sued Air France for damages for the
embarrassment he suffered during his trip. In court, Carrascoso testified, among others, that he when he was forced
to take the tourist class, he went to the planes pantry where he was approached by a plane purser who told him that
he noted in the planes journal the following:
First-class passenger was forced to go to the tourist class against his will, and that the captain refused to intervene
The said testimony was admitted in favor of Carrascoso. The trial court eventually awarded damages in favor of
Carrascoso. This was affirmed by the Court of Appeals.
Air France is assailing the decision of the trial court and the CA. It avers that the issuance of a first class ticket to
Carrascoso was not an assurance that he will be seated in first class because allegedly in truth and in fact, that was
not the true intent between the parties.
Air France also questioned the admissibility of Carrascosos testimony regarding the note made by the purser
because the said note was never presented in court.
ISSUE 1: Whether or not Air France is liable for damages and on what basis.
ISSUE 2: Whether or not the testimony of Carrasoso regarding the note which was not presented in court is
admissible in evidence.
HELD 1: Yes. It appears that Air Frances liability is based on culpa-contractual and on culpa aquiliana.
Culpa Contractual
There exists a contract of carriage between Air France and Carrascoso. There was a contract to furnish Carrasocoso
a first class passage; Second, That said contract was breached when Air France failed to furnish first class
transportation at Bangkok; and Third, that there was bad faith when Air Frances employee compelled Carrascoso to
leave his first class accommodation berth after he was already, seated and to take a seat in the tourist class, by
reason of which he suffered inconvenience, embarrassments and humiliations, thereby causing him mental anguish,
serious anxiety, wounded feelings and social humiliation, resulting in moral damages.
The Supreme Court did not give credence to Air Frances claim that the issuance of a first class ticket to a passenger
is not an assurance that he will be given a first class seat. Such claim is simply incredible.
Culpa Aquiliana
Here, the SC ruled, even though there is a contract of carriage between Air France and Carrascoso, there is also a
tortuous act based on culpa aquiliana. Passengers do not contract merely for transportation. They have a right to be
treated by the carriers employees with kindness, respect, courtesy and due consideration. They are entitled to be
protected against personal misconduct, injurious language, indignities and abuses from such employees. So it is, that
any rule or discourteous conduct on the part of employees towards a passenger gives the latter an action for
damages against the carrier. Air Frances contract with Carrascoso is one attended with public duty. The stress of
Carrascosos action is placed upon his wrongful expulsion. This is a violation of public duty by the Air France a
case of quasi-delict. Damages are proper.
HELD: 2: Yes. The testimony of Carrascoso must be admitted based on res gestae. The subject of inquiry is not the
entry, but the ouster incident. Testimony on the entry does not come within the proscription of the best evidence rule.
Such testimony is admissible. Besides, when the dialogue between Carrascoso and the purser happened, the impact
of the startling occurrence was still fresh and continued to be felt. The excitement had not as yet died down.
Statements then, in this environment, are admissible as part of the res gestae. The utterance of the purser regarding
his entry in the notebook was spontaneous, and related to the circumstances of the ouster incident. Its
trustworthiness has been guaranteed. It thus escapes the operation of the hearsay rule. It forms part of the res
gestae.

Damages:

For the same faulty or negligent act or omission causing damages it may produce multiple liabilities, namely (1)
criminal liability and (2) civil liability which in turn may be (a) a Civil Liability arising from a crime under the Revised
Penal Code, or (b) Civil liability arising from culpa extra-contractual or quasi delict or culpa aquiliana under the Civil
Code and (c) civil liability arising from culpa contractual or breach of contract.

The liability arising from culpa aquiliana is entirely separate and distinct the civil liability arising from a crime. However
the plaintiff cannot recover damages twice for the same act or omission. (Art 2177 NCC)

The acquittal or conviction in the criminal case is entirely irrelevant in the civil case, unless the acquittal is declared
that the fact from which the civil action arose did not exist which extinguished the criminal liability and the civil liability.
(Andamo vs IAC, 191 SCRA 204) The aggrieved party has the option to choose which of the actions that may be filed
because double recovery or damages is prohibited. (Virata vs Ochoa, 81 SCRA 472).

Pedro Elcano, Et Al., V. Reginal Hill Et Al. (1977)

L-24803 May 26, 1977
Laws Applicable: ART. 2177,Article 397,article 1093,Article 2180 of the Civil Code
Lessons Applicable: Quasi-delict (Tort and Damages)

FACTS:

Reginald Hill, a minor, caused the death of Agapito (son of Elcano). Elcano filed a criminal case against Reginald but
Reginald was acquitted for lack of intent coupled with mistake. Elcano then filed a civil action against Reginald and
his dad (Marvin Hill) for damages based on Article 2180 of the Civil Code. Hill argued that the civil action is barred by
his sons acquittal in the criminal case; and that if ever, his civil liability as a parent has been extinguished by the fact
that his son is already an emancipated minor by reason of his marriage.
ISSUE: Whether or not Marvin Hill may be held civilly liable under Article 2180.
HELD: Yes. The acquittal of Reginald in the criminal case does not bar the filing of a separate civil action. 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 accused is actually charged also criminally, 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. 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 considered as a quasi-delict only and not as a crime is not extinguished even by a
declaration in the criminal case that the criminal act charged has not happened or has not been committed by the
accused. Briefly stated, culpa aquiliana includes voluntary and negligent acts which may be punishable by law.
While it is true that parental authority is terminated upon emancipation of the child (Article 327, Civil Code), and under
Article 397, emancipation takes place by the marriage of the minor child, it is, however, also clear that pursuant to
Article 399, emancipation by marriage of the minor is not really full or absolute. Thus Emancipation by marriage or by
voluntary concession shall terminate parental authority over the childs person. It shall enable the minor to administer
his property as though he were of age, but he cannot borrow money or alienate or encumber real property without the
consent of his father or mother, or guardian. He can sue and be sued in court only with the assistance of his father,
mother or guardian. Therefore, Article 2180 is applicable to Marvin Hill the SC however ruled since at the time of
the decision, Reginald is already of age, Marvins liability should be subsidiary only as a matter of equity.

Reginald Hill, a minor, married but living with his father, Atty. Marvin Hill with whom he was living and
getting subsistence killed Agapito Elcano
CFI Civil Case: dismissed on the ground that he was acquitted on the ground that his act was not
criminal, because of "lack of intent to kill, coupled with mistake
 Spouses Elcano appealed
ISSUES:
1. W/N the civil action should be barred by the acquittal of criminal action - NO
2. W/N the Civil Code can be applied to Atty. Marvin Hill even though Reginald is already married -YES
HELD: order appealed from is reversed

1. NO.
separate individuality of a cuasi-delito or culpa aquiliana, under the Civil Code has been fully and clearly
recognized, even with regard to a negligent act for which the wrongdoer could have been prosecuted and
convicted in a criminal case and for which, after such a conviction, he could have been sued for this civil
liability arising from his crime.
If we were to hold that articles 1902 to 1910 of the Civil Code refer only to fault or negligence not
punished by law, accordingly to the literal import of article 1093 of the Civil Code, the legal institution
of culpa aquiliana would have very little scope and application in actual life
to find the accused guilty in a criminal case, proof of guilt beyond reasonable doubt is required, while in
a civil case, preponderance of evidence is sufficient to make the defendant pay in damages. . Otherwise.
there would be many instances of unvindicated civil wrongs. "Ubi jus Idemnified remedium."
ART. 2177. Responsibility for fault or negligence under the preceding article is entirely separate and
distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot
recover damages twice for the same act or omission of the defendant.
in reiteration of Garcia, that culpa aquiliana includes voluntary and negligent acts which may be
punishable by law
It results, therefore, that the acquittal of Reginal Hill in the criminal case has not extinguished his liability
for quasi-delict, hence that acquittal is not a bar to the instant action against him.
2. YES
While it is true that parental authority is terminated upon emancipation of the child (Article 327, Civil Code), and under Article 397,
emancipation takes place "by the marriage of the minor (child)", it is, however, also clear that pursuant to Article 399, emancipation
by marriage of the minor is not really full or absolute. Thus "(E)mancipation by marriage or by voluntary concession shall terminate
parental authority over the child's person. It shall enable the minor to administer his property as though he were of age, but he cannot
borrow money or alienate or encumber real property without the consent of his father or mother, or guardian. He can sue and be sued
in court only with the assistance of his father, mother or guardian."

Article 2180, "(T)he 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
the marriage of a minor child does not relieve the parents of the duty to see to it that the child, while
still a minor, does not give answerable for the borrowings of money and alienation or encumbering of
real property which cannot be done by their minor married child without their consent
Reginald is now of age, as a matter of equity, the liability of Atty. Hill has become milling, subsidiary to
that of his son.

Contributory Negligence has been frequently remarked that this defense is often confused with that of assumption of risk
or volenti non fit injuria. The Supreme Court of the United States explained the distinction between the tow defense in the
following language in the recent case of Seaboard Air Line Railway vs. Horton (233 U.S., 492, 503):

The distinction, although simple, is sometimes overlooked. Contributory negligence involves the notion of some
fault or breach of duty on the part of the employee; and since it is ordinary his duty to take some precaution for his
won safety when engaged in hazardous occupation, contributory negligence is sometimes defined as a failure to
use such care for his safety as ordinarily prudent employees in similar circumstances would use. On the other
hand, the assumption of risk, even though the risk be obvious, may be free from any suggestion of fault or
negligence on the part of the employee. The risks may be present, notwithstanding the exercise of all reasonable
care on his part. Some employments are necessarily fraught with danger to the workmen danger hat must be
and is confronted in the line of his duty. Such dangers as are normally and necessarily incident to the occupation
are presumably taken into the account in fixing the rate of wages. And a workman of mature years is taken to
assume risks of this sort, whether he is actually aware of them or not. But risks of another sort, not naturally
incident to the occupation, may arise out of the failure of the employer to exercise due care with respect to
providing a safe place of work and suitable and safe appliances for the work. These the employee is not treated as
assuming until he becomes aware of the defect or disrepair and of the risk arising from it, unless defect and risk
 alike are so obvious that an ordinarily prudent person under the circumstances would have observed and
appreciated them.

The doctrine of assumption of risk is also known as volenti non fit injuria.
Assumption of Risk
A defense, facts offered by a party against whom proceedings have been instituted to diminish a plaintiff's Cause of
Action or defeat recovery to an action in Negligence, which entails proving thatthe plaintiff knew of
a dangerous condition and voluntarily exposed himself or herself to it.
Under the federal rules of Civil Procedure, assumption of the risk is an Affirmative Defense thatthe defendant in
a negligence action must plead and prove. The doctrine of assumption of risk isalso known as volenti non fit injuria.
Situations that encompass assumption of the risk have been classified in three broad categories.In its principal sense, assumption o
f the risk signifies that the plaintiff, in advance, has consentedto relieve the defendant of
an obligation of conduct toward him or her and to take a chance of injury from a known risk ensuing from what the defendant is to do
or leave undone. Theconsequence is that the defendant is unburdened of all legal duty to the plaintiff and, therefore,cannot be held l
iable in negligence.
A second situation occurs when the plaintiff voluntarily enters into some relation with thedefendant, knowing that the defendant will n
ot safeguard the plaintiff against the risk. The plaintiffcan then be viewed as tacitly or implicitly consenting to the negligence, as
in the case of riding in
a car with knowledge that the steering apparatus is defective, which relieves the defendant of theduty that would ordinarily exist.
In the third type of situation, the plaintiff, cognizant of
a risk previously created by the negligenceof the defendant, proceeds voluntarily to confront it, as when he
or she has been provided with an article that the plaintiff knows to
be hazardous and continues to use after the danger has beendetected. If this is
a voluntary choice, the plaintiff is deemed to have accepted the situation andassented to free the defendant of all obligations.
In all three situations, the plaintiff might be acting in
a reasonable manner and not be negligent in the venture, because the advantages of his or her conduct outweigh the peril. The plai
ntiff'sdecision might be correct, and he or she might even act with unusual circumspection because he
or she is cognizant of the danger that will be encountered. If that is the case, the defenseoperates to refute the defendant's negligen
ce by denying the duty of care that would invoke thisliability, and the plaintiff does not recover because the defendant's conduct was
not wrongfultoward the plaintiff.
With respect to the second and third situations, however, the plaintiff's conduct in confronting a known risk might be
in itself unreasonable, because the danger is disproportionate to theadvantage the plaintiff is pursuing, as when, with other transport
ation available, the individualchooses to ride with an intoxicated driver. If this occurs, the plaintiff's conduct is
a type of contributory negligence, an act or omission by the plaintiff that constitutes a deficiency in ordinarycare, which concurs with
the defendant's negligence to comprise the direct or proximate cause of injury. In such cases, the defenses of assumption of risk an
d contributory negligence overlap.
In this area of intersection, the courts have held that the defendant can employ either defense or both. Since ordinarily either is suffi
cient to bar the action, the defenses have been distinguishedon the theory that assumption of risk consists of awareness of the peril
and intelligent submissionto it, while contributory negligence entails some deviation from the standard of conduct of
a reasonable person, irrespective of any remonstration or unawareness displayed by the plaintiff.The two concepts can coexist whe
n the plaintiff unreasonably decides to incur the risk or canexist independently of each other. The distinction, when one exists, is likel
y to
be one betweenrisks that were in fact known to the plaintiff and risks that the individual merely might havediscovered by the exercis
e of ordinary care.
Express Agreement
The parties can enter into a written agreement absolving the defendant from any obligation of care for the benefit of the plaintiff and l
iability for the consequence of conduct that wouldotherwise constitute negligence. In the ordinary case, public policy does not preve
nt the partiesfrom contracting in regard to whether the plaintiff will be responsible for the maintenance of personal safety. A person
who enters into a lease or rents an animal, or enters into a variety of similar relations entailing free and open bargaining between the
parties, can assent to relievingthe defendant of the obligation to take precautions and thereby render the defendant free fromliability
for negligence.The courts have refused to uphold such agreements, however, if one partypossesses a patent disadvantage in barg
aining power. For example, a contract exempting an employer from all liability for negligence toward employees is void as against p
ublic policy. A carrier transporting cargo or passengers for hire cannot evade its public responsibility in thismanner, even though the
agreement limits recovery to
an amount less than the probabledamages. The contract has been upheld, however, when it represents a realistic attempt to assess
a value as liquidated or ascertained damages in advance, and the carrier graduates itsrates in accordance with such value, so that
complete protection would be available to the plaintiffupon paying a higher rate. The same principles apply to innkeepers, public war
ehousemen, andother professional baileessuch as garage, parking lot, and check-room attendants
on thebasis that the indispensable necessity for their services deprives the customer of all meaningfulequal bargaining power.
An express agreement can relieve the defendant from liability for negligence only if the plaintiffcomprehends its terms. If the plaintiff
is not cognizant of the provision in his or her contract, and a reasonable person in the same position would not have known of it, it
is not binding upon theindividual, and the agreement fails for lack of mutual assent. The expressed terms of theagreement must appl
y to the particular misconduct of the defendant. Such contracts generally do not encompass gross, willful, wanton, or reckless neglig
ence or any conduct that constitutes an intentional TORT.
Implied Acceptance of Risk
In
a majority of cases, the consent to assume the risk is implied from the conduct of the plaintiffunder the circumstances. The basis of t
he defense is not contract, but consent, and it is availablein many cases in which no express agreement exists.
By entering voluntarily into any relationship or transaction in which the negligence of thedefendant is evident, the plaintiff is deemed
to accept and consent to it, to assume responsibilityfor personal safety, and to unburden the defendant of the obligation. Spectators
at certain sportsevents assume all the known risks of injury from flying objects. Plaintiffs who enter businesspremises as invitees an
d detect dangerous conditions can be deemed to assume the risks whenthey continue voluntarily to encounter them.
Knowledge of Risk
The plaintiff will not normally be regarded as assuming any risk of either conditions or activities of which he
or she has no knowledge. The plaintiff must not merely create the danger but mustcomprehend and appreciate the danger itself.
The applicable standard is basically subjective in nature, tailored to the particular plaintiff and hisor her situation, as opposed to the
objective standard of the reasonable person of ordinaryprudence, which is employed in contributory negligence. If because of age, l
ack of information, or experience, the plaintiff does not comprehend the risk entailed in
a known situation, the individualwill not be regarded as consenting to assume it. Failure to exercise ordinary care to discover thedan
ger is not encompassed within assumption of risk, but in the defense of contributorynegligence.
An entirely subjective standard, however, allows the plaintiff considerable latitude in testifying thathe
or she did not know or comprehend the risk. To counteract the adverse effects of theapplication of this liberal standard, courts have i
nterjected an objective element by holding that a plaintiff cannot evade responsibility by alleging that he
or she did not comprehend a risk that musthave been obvious.
A denial of cognizance of certain matters that are common knowledge in the community is notcredible, unless a satisfactory explana
tion exists. As
in the case of negligence itself, there areparticular risks that any adult must appreciate, such as falling on ice, lifting heavy objects, a
nddriving a defective vehicle. In addition, a plaintiff situated for a considerable length of time in theimmediate vicinity of
a hazardous condition is deemed to have detected and to comprehend theordinary risks entailed in that situation. If the person comp
letely understands the risk, the fact thathe or she has temporarily forgotten it does not provide protection.
Even when there is knowledge and appreciation of
a risk, the plaintiff might not be prohibited fromrecovery when the circumstances introduce a new factor. The fact that the plaintiff is t
otallycognizant of one risk, such as the speed of a vehicle, does not signify that he or she assumesanother of which he
or she is unaware, such as the intoxication of the driver. Although knowledgeand understanding of the risk incurred are encompasse
d within the concept of assumption of therisk, it is possible for the plaintiff to assume risks of whose specific existence he
or she is unawareto consent to venture into unknown conditions. In
a majority of instances, theundertaking is express, although it can arise by implication in
a few cases. A guest who accepts a gratuitous ride in
an automobile has been regarded as assuming the risk of defects in the vehicle,unknown to the driver.
Voluntary Assumption
The doctrine of assumption of risk does not bar the plaintiff from recovery unless the individual'sdecision is free and voluntary. There
must be some manifestation of consent to relieve thedefendant of the obligation of reasonable conduct. A risk is not viewed as assu
med if it appearsfrom the plaintiff's words or from the circumstances, that he
or she does not actually consent. If the plaintiff relinquishes his or her better judgment upon assurances that the situation is safe or t
hat it will be remedied or upon a promise of protection, the plaintiff does not assume the risk,unless the danger is
so patent and so extreme that there can be no reasonable reliance upon theassurance.
Even when the plaintiff does not protest, the risk is not assumed when the conduct of thedefendant has provided the individual with
no reasonable alternative, causing him or her to actunder duress. When the defendant creates a peril, such as
a burning building, those who dashinto it
to save their own property or the lives or property of others do not assume the risk whenthe alternative is
to permit the threatened injury to occur. If, however, the danger is disproportionate to the value of the interest to
be protected, the plaintiff might be charged withcontributory negligence in regard to his or her own unreasonable conduct. When a r
easonablysafe alternative exists, the plaintiff's selection of the hazardous route is free and can constituteboth contributory negligenc
e and assumption of risk.
The defendant has a legal duty, which he
or she is not at liberty to refuse to perform, to exercisereasonable care for the plaintiff's safety, so that the plaintiff has a parallel lega
l right to demandthat care. The plaintiff does not assume the risk while using the defendant's services or facilities,notwithstanding kn
owledge of the peril, when he
or she acts reasonably, and the defendant hasprovided no reasonable alternative other than to refrain completely from exercising th
e right. A common carrier or other public utility which has negligently furnished a dangerously defective setof steps cannot assert as
sumption of risk against a patron who uses the steps as the soleconvenient means of access to the company's premises. The same
principle applies to
a citymaintaining a public roadway or sidewalk or other public area that the plaintiff has a right to useand premises onto which the pl
aintiff has a contractual right to enter. When a reasonablealternative is available, the plaintiff's recalcitrance in unreasonably encount
ering dangerconstitutes contributory negligence, as well as assumption of risk.
Violation of Statute
The plaintiff still assumes the risk where the defendant's negligence consists of the violation of
a statute. A guest who accepts a nighttime ride in
a vehicle with inoperative lights has beenregarded as consenting to relieve the defendant of the duty of complying with the standard
established by the statute for protection and cannot recover for injuries. Particular statutes,however, such as child labor acts and saf
ety statutes for the benefit of employees, safeguard theplaintiff against personal inability to protect himself or herself due to improvid
ent judgment or incapability to resist certain pressures. Since the basic objective of such statutes would be frustrated if the plaintiff w
ere allowed to assume the risk, it is generally held that the plaintiffcannot do so, either expressly or impliedly.
Abolition of the Defense
Numerous states have abrogated the defense of assumption of risk in automobile cases throughthe enactment of no-
fault insurance legislation or comparative negligence acts. The theoriesunderlying its Abolition are that it serves no purpose that is n
ot completely disposed of by theother doctrines, it increases the likelihood of confusion, and it bars recovery in meritorious cases.
Assumption of risk is not a defense under state Workers' Compensation laws or
in federalEMPLOYER'S LIABILITY ACT actions. The workers' compensation laws abolished the defense inrecognition of the severe econ
omic pressure a threatened loss of employment exerted uponworkers. A worker was deemed to have assumed the risk even when a
cting under a direct orderthat conveyed an explicit or implicit threat of discharge for insubordination.
The federal Employers' Liability Act (45 U.S.C.A. 51
et seq. [1908]) was intended to furnish an equitable method of compensation for railroad workers injured within the scope of theirem
ployment. The act provides that an employee is not deemed to have assumed the risks of employment when injury or death ensued
totally or partially from the negligence of the carrier'sofficers, agents, or employees, or from the carrier's violation of any statute enac
ted for the safetyof employees, where the infraction contributed to the employee's injury or death. This doctrinewas abolished becau
se of the extreme hardship it imposed on workers in this dangerous line of employment.

Mr. and Mrs. Ong vs Metropolitan Water District

Diligence as a Defense Last Clear Chance; when not applied

On July 5, 1952, Dominador Ong (14 years old) and his two brothers went to the swimming pool operated by
Metropolitan Water District (MWD). After paying the entrance fee, the three proceeded to the small pool.
The swimming pools of MWD 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. MWD 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.
Later, Dominador told his brothers that hell just be going to the locker room to drink a bottle of Coke. No one saw him
returned. Later, the elder Ong noticed someone at the bottom of the big pool and notified the lifeguard in attendant
(Manuel Abao), who immediately dove into the water. The body was later identified as Dominadors. He was
attempted to be revived multiple times but of no avail.
The parents of Ong sued MWD averring that MWD was negligent in selecting its employees. During trial, the elder
brother of Ong and one other testified that Abao was reading a magazine and was chatting with a security guard
when the incident happened and that he was called a third time before he responded. Plaintiff further alleged that
even assuming that there was no negligence on the part of MWD, it is still liable under the doctrine of Last Clear
Chance for having the last opportunity to save the Dominador, its employees failed to do so.
ISSUE:
1. Whether or not MWD is liable for the death of Dominador Ong due to negligence.
2. WON the Doctrine of Last Clear Chance applies in the case at bench.
HELD:
1.No. The person/s claiming damages has/have the burden of proving that the damages is caused by the
fault/negligence of the person from whom the damages is claimed.As established by the facts, MWD was not
negligent in selecting its employees as all of them were duly certified. MWD was not negligent in managing the pools
as there were proper safety measures and precautions/regulations that were placed all over the pools. In that, it
appears that defendant has taken all the necessary precautions to avoid/prevent danger/accidents which may cause
injury to or even death of its patrons. Hence, due diligence is appreciated as a complete and proper defense in this
case. Further, the testimony in court by the elder Ong and the other witness was belied by the statements they have
given to the investigators when they said that the lifeguard immediately dove into the water when he was called about
the boy at the bottom of the pool.
2. The Doctrine of last Clear Chance means that, a person who has the last clear chance to avoid the accident,
notwithstanding the negligent acts of his opponent, is considered in law solely responsible for the consequences of
the accident. Since minor Ong has went to the big swimming pool w/o any companion in violation of the rules and
regulations of the defendant as regards the use of pools, and it appearing that the lifeguard responded to the call for
help as soon as his attention was called to it, applying all efforts into play in order to bring minor Ong back to life, it is
clear that there is no room for the application of the Doctrine to impute liability to appellee. Minor Ongs
fault/negligence is the proximate and only cause of his death.The doctrine of Last Clear Chance is of no application
here. It was not established as to how Dominador was able to go to the big pool. He went to the locker and thereafter
no one saw him returned not until his body was retrieved from the bottom of the big pool. The last clear chance
doctrine can never apply where the party charged is required to act instantaneously (how can the lifeguard act
instantaneously in dissuading Dominador from going to the big pool if he did not see him go there), and if the injury
cannot be avoided by the application of all means at hand after the peril is or should have been discovered; at least in
cases in which any previous negligence of the party charged cannot be said to have contributed to the injury.