Torts and Damages the loss rather than having you go only
after the erring driver. So there are
Why do you think we have torts law?
What do you think is torts law for?
1. Compensation, imagine if there were no torts
law and there will be many acts of negligence, this
is precisely why you want torts law, because you
want compensation.
2. Measure of corrective justice..
Let me just site an example where the application
of this concept is highly involved:
Somebody died of Lung Cancer for having smoked
several packs of cigarettes every day. And the
brand of the cigarette is Philip Morris, and for his
death the wife filed a case against philip morris.
She was saying the cause of death of her husband
is philip morris and therefor she wants
compensation. The trial court granted her
compensation, 72 million US dollars, and there was
an appeal brought by philipp morris to the
supreme court of the United States, but not to
question the fact that there was compensation but
philip morris was just saying that there was too
much, so the court reduced it but still to several
millions of US dollars because philip morris caused
the death of her husband.
Argument of the wife: wife was saying that the
cause my husbands death is the cigarette for
having smoked 20 packs.
-What possible defense if you were counsel for
philip morris? Wala juy namugos nimog
palit ug sigarilyo. Nobody will tell you to
buy that cigarette and smoke, in fact the
argument there was, even if you already
started smoking, you can just quit
altogether, thats really compelling
argument, it would take a really creative
lawyer to counter that.
-And if you were counsel for the wife, how
would you counter that argument?
Philip morris: we didnt force your husband to
smoke. And even if he was already a smoker, he
can always chose to stop. And because he
continued that he bears the risk. Government
Warning Cigarette smoking is dangerous to your
health.
Wifes counter-argument: my husband would have
wanted to stop smoking, but you made your
cigarette so addictive, he cannot stop.
Decision: the courts there believed that and
granted her (wife) damages. So it is therefore a
can be viewed as a measure for corrective justice,
or it can even be viewed also as a form of civil
redress, it can even be viewed as an optimal
deterrence.
-Road Deaths Accidents, are among the major
causes of deaths in the Philippines.
How do you think we can prevent that? How do you
think we can lessen the number of deaths that
result from vehicular accidents? Torts law
punishes the one who violates our traffic rules, but
as it is you get sideswiped and you die, most you
will be paid is 50,000.
3. It can be a measure of loss distribution.
-Bus Company employs a driver, driver is
negligent, he killed a pedestrian. You can
file directly against the owner, one who
hired the driver. As a means of distributing
principles in torts that you can use in order
to distribute the loss.
-You keep an animal as Pet, and this dog bites
another person, ikaw ang pabayron
(alangan naman sad ang dog) is a
measure of loss distribution
Case: Exxon vs Baker
Oil Spill caused by Exxon. In the Philippines, you
damage natural resource, tubataha reef, and
Philippine courts will only slap you with a few
millions of pesos but there oil spill that have
caused damage to the eco system, several millions
of dollars, so there you can use torts law as redress
for social grievances.
Case: Phillip morris USA vs Williams
This reached the court only for the single issue of
whether the amount of damages granted, several
millions of dollars have not been equitable. Notice
that they didnt quarrel anymore on the framework
of the award theyve accepted that they are liable,
the argument was it shouldnt be that much
QUASI-DELICT
Q: When we say torts, are we also referring to
quasi-delict? Can we use torts and quasi-delict
interchangeably?
A: Technically, No. In laymans concept, Yes. To be
legally precise about it, when we say torts, that is
not the same with quasi-delict.
Q: What is the point of divergence?
A: As to origin
-Concept of torts is common law; quasi-delict
is civil law.
o When we say common law, you look
at statutory provisions but you are
not bound by that. You looked at
what is percieved as wrong in the
society, customs and practices
prevailing at that time. When
there is no law, you can convince
the judge that it is wrong by
community practices, culture and
tradition.
o In common law, there are many
sources of law such as statutes
and customs and traditions.
o Most successful lawyers in common
law are the creative ones by
convincing the judge that it is
wrong.
-BUT:
o In civil law, you look at the law or SC
decisions. Cause of action should
be based on the law.
-THUS: When we say torts, that is broader than
quasi-delict because quasi-delict is based
on what the law says it is.
-Legal Implication
o When you are filing a case in court in
a common law jurisdiction, you are
not bound by what is indicated in
the law.
1

o When you are filing for damages in a
civil law jurisdiction, you are
bound by what is the concept of
quasi-delict as indicated in the
law.
-As to scope
o Torts can cover any legal wrong;
quasi-delict is based on the
definition fixed by law.
Case: Navida v. Dizon; Child Learning v.
Tagorio
Torts as a common law concept
-Covers all wrongful acts, whether intentional
or unintentional (negligent)
-Intentional acts such as battery, assault, false
imprisonment, intentional infliction of
emotional distress, defamation, and
malicious prosecution. Abuse of process
and trespass to land.
*One US case that tells us the difference between
battery and assault.
Case: Garatt v. Dailey
Assault if there is just an attempt
Battery if there is already physical contact
False Imprisonment
Case: Lopez v. Winchell Donut House (US
case)
Facts: Sales girl in Winchell Donut House was
accused of having pocketed the sales in the
establishment and was asked not to leave until
she is able to account for the sales that was
allegedly pocketed by her. She filed a case and
cried false imprisonment.
-Court says, there false imprisonment if there
is an actual restraint. Moral restraint is not
false imprisonment.
That is what is tort any legal wrong.
Quasi-delict
Art. 2176. Whoever by act or omission causes
damage to another, there being fault or negligence,
is obliged to pay for the damage done. Such fault
or negligence, if there is no pre-existing
contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of
this Chapter.
-First line of course of action is, what law can I
use? a civil law thinking.
Quasi-delict
Art. 2176. Whoever by act or omission
causes damage to another, there being fault or
negligence, is obliged to pay for the damage done.
Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of
this Chapter.
What is Quasi-delict?
-Foremost in your mind would have to be the
presence of fault or negligence because it
says whoever by act or omission causes
damage to another, there being fault or
negligence, without pre-existing
contractual relation shall then be liable
under quasi-delict. So when we say
quasi-delict youd want to say something
that is founded on fault or negligence.
-Unlike tort which can cover intentional or
negligent acts, quasi-delict cannot cover
intentional acts because it is defined which
is that to be founded on fault or
negligence.
Can quasi-delict cover criminal acts? If it is
limited to negligence can it include criminal
acts?
-In Art. 3 of the RPC, it says
ARTICLE 3. Definition. Acts and
omissions punishable by law are felonies (delitos).
Felonies are committed not only by means
of deceit (dolo) but also by means of fault
(culpa).
There is deceit when the act is performed
with deliberate intent; and there is fault
when the wrongful act results from
imprudence, negligence, lack of foresight,
or lack of skill.
How do you commit a crime?
- 2 ways of committing a crime
1. Deceit and we call it dolo- means intent or
deliberate intent
2. By means of fault or culpa. - Opposite of intent is
of course negligence.
- Remember what was said by Art. 2176 that
quasi delict is committed through fault or
negligence which was then you understand
why SC decisions would sometimes instead of
saying quasi delict would go on saying culpa
aquiliana precisely because this is committed
through culpa or fault.
- At the very heart of it is negligence, but you
notice that negligence is also considered a
crime because it is stated in Art. 3 of the RPC
that there are 2 ways of committing a crime.
E.g. a man was driving and then he negligently hit
a pedestrian, since negligence is a given you can
file a case for quasi-delict then the fundamental
question we ask is can we also file a similar case for
reckless imprudence because recall that in
CIVPRO, you cannot file for one and the same
cause of action several cases. (splitting cause of
action or forum shopping? murag both are
wrong, Alternative causes of action ni?)
Theres one negligent act but can you do both at
the same time without having to await the
outcome of the case?
YES, but: why can you for one and the same crime
invoke 2176 (quasi-delict) and invoke Title 14 of
RPC? (criminal act)
The answer lies in the old case of Barredo v.
Garcia
SC: when you look at it there really is a difference
between a criminal case for reckless imprudence
and a civil case founded on negligence even if they
both stand on one and the same act of negligence.
When we say criminal case, what you are
seeking to redress therefore is the offense
against the state, but when we say civil
2
concept of quasi-delict what you seek to
redress is the private wrong, what you seek
is private compensation for damages.
Fundamentally they stand on different Rules of
Evidence (guilt beyond reasonable doubt and mere
preponderance of evidence), the purposes are
different.
In fact even if theoretically private complainant
forgives you, case can still proceed but of course in
civil cases if there is already quit claim and
settlement then it cannot anymore proceed. And
because they stand on different footing they have
separate individuality on their own, the court then
said, if by filing of a criminal case you cannot
anymore pursue culpa aquiliana or vice versa, one
will negate the other and yet thats not the way it
goes. You have both institutions in your
legal system and why should you constrain
the other. And so the court said, they have
separate individuality and stand under their
own jural foundations. Although the caveat
you file in 217 is that you can only recover
once.
-Where will you recover? Of course the one
with the highest expectation of amount of
damages that will be awarded.
Because they have separate individuality for
one and the same negligent act you file a
criminal case for reckless imprudence
resulting in serious physical injuries, when
can you file a civil case for culpa aquiliana?
In the case of Rafael Reyes Trucking
Corp. v. People, a criminal case was first filed in
1989, in fact arraignment was set Oct. 23, 1989,
after Oct. 23 a separate civil case for one and the
same negligent act of the driver was filed in
another court. Can that civil case proceed even
that there was already a criminal case based on
one and the same act of the driver. In year 2000,
the court said, here you actually have 2 causes of
action, you can pursue a criminal case for
negligence or you can sue for culpa aquiliana but
the court did not stop there, the court said once
the choice is made the injured party cannot avail of
the other remedy, that forecloses the availment of
the other remedy. So when you file a criminal case
you cannot anymore file a civil case.
BUT: under Art. 2177 the law itself declares
that it is separate and distinct from one
another
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.
TAKE NOTE: The ruling in Rafael Reyes was
overruled in the case of Manliclic vs.
Calaunan in 2007
-case of reckless imprudence of a driver and a
criminal case was first filed before a
complaint for damages was filed against
the driver and owner of the vehicle. This
time around the court did not anymore
dismiss the civil case even if there
was already a criminal case filed
founded on the same negligent act.
The court said, you look at the
criminal case and the appearance
there of the private prosecutor.
Who has the control and discretion in a
criminal case? Prosecutor
But can you as private practitioner come
in? Yes, theoretically you dont have an interest in
the criminal case, your interest there is in the civil
aspect of the crime.
Every crime carries with it a civil aspect.
Your interest, therefore in appealing is for the civil
aspect that is tried. But, the civil aspect that is
tried in a criminal case is a civil aspect, civil liability
arising from the crime. The court then said, so
there is no reason from preventing him from
filing a civil for quasi-delict because this civil
case is for quasi-delict, whereas, your
interest there in the criminal case is the civil
aspect arising from the crime.
BUT, WHAT IF:
-alright, I can file both separately without
having to wait for the outcome of one in
favor of the other, but what if one of the
two cases has already been decided, this
one is based on one and the same act but
the judge in the criminal case said I acquit
this person because I seriously doubt that
he is negligent. What effect does that
have on the civil case we filed founded on
the same negligence?
-SC: civil case for quasi-delict and criminal
case for fault or culpa have substantivity
on their own, individuality entirely apart
and independent from the crime. Thus,
whatever happens to that case should
not affect at all the other case. The
Court even said, the judgment of
acquittal cannot be used to extinguish
the civil liability arising from
quasi-delict. If at all what it has
extinguished is the civil liability arising
from the crime.
So thats acquittal based on reasonable
doubt. But what if the judge takes it a step
further and says in the criminal case, my
finding is that there is absolutely no
negligence, not just reasonable doubt but
absolute certainty that there was no
negligence. What is the effect of that on
the case for quasi-delict?
-SC: if the accused is acquitted based on
reasonable doubt, the civil case should
proceed, but it even went on to say that if
the accused has not committed the act or
is not the author of the act complained of,
what that forecloses is his civil liability
arising from the crime. The quasi-delict
case should go on because it is
separate and distinct from the
criminal case.
-The Court made a sweeping pronouncement
and said because they are separate
and distinct an acquittal or conviction
is entirely irrelevant in a civil case
based on quasi-delict.
Think of this class, if one would have an
effect on the other what will happen on the
3
 institution for quasi-delict and what will
happen on the legal institution for criminal
negligence?
-The one will depend on the other. So the Court
said, whatever is the judgment in thats
entirely irrelevant in the civil case for
quasi-delict.
THUS: we have established is culpa aquiliana
separate and distinct, you can file both
simultaneously, and whatever is the outcome
in the criminal case should not affect the civil
case for culpa aquiliana.
o But do you recall the concept of
reservation? Do you need a
reservation if you want to file an
independent action for
quasi-delict?
The SC keeps on changing the rule on reservation
from time to time.
-First the Court said reservation needed. The
justification was that it was just a
reservation so that the court will be aware
of the existing of another case involving
almost the same facts.
-Later on the Court changes its mind and said
reservation not needed. The justification
was having to require reservation would
impair a substantive right to file an
independent civil action because now you
are not as free to file an independent civil
action because you still have to make a
reservation. So they are saying that under
the constitution, sure rules and procedures
can be crafted by the SC but such must not
modify or diminish substantive rights.
-And then it again change its mind and said
that it is not actually modifying a
substantive right because it still exist we
just want you to reserve and after you
reserve you then file an independent civil
action.
-Now, the rules does not again require
reservation.
Q: when we say culpa contractual and culpa
aquiliana, is the culpa one and the same?
Manila Railroad case:
-The concept of culpa in culpa contractual is
different from the concept of culpa in culpa
aquiliana. In one culpa, that is an
independent source of an obligation. In the
other, it is an incident to the commission of
the breach.
-So when we say, therefore, culpa contractual,
the case that you file of culpa contractual,
how will you establish your cause of action?
What are the things you will allege in the
case of culpa contractual?
o You say, your honor there is a
contract and this contract is
breached.
And then you ask the question how
was it breached, and you will say by
negligence.
o Youll say theres a contract and the
incidental question is how the
contract breached, by negligence.
-And when you file a case for culpa aquiliana
what will you tell the court as the elements
of your cause of action?
o Youll say, your honor Im filing this
case for culpa aquiliana because
the defendant was negligent.
o What you tell the court was that
there was negligence.
-THUS: So on one hand negligence is merely
an incident to the cause of action, but on
the other it is really the cause of action.
Can you do culpa contractual and culpa
aquiliana at the same time? Without
splitting a single cause of action?
Calalas vs CA, may kayo pagskwela sa
Siliman, taking up physical education,
after the class you ride the jeepney and
because it was already very full this
student took the extension seat, they
usually place this in the middle. So if there
is somebody who will alight, manaog sad
ka apil, so she had to get down and was
bumped by another vehicle. So nawagtang
iyang tiil, she filed a case for damages.
Notice that because she was riding a
passenger jeepney, transpo, contract of
carriage. So there was this contract and
you were not able to reach your
destination safely, there is a breach of
contract of carriage. But the one who
bumped you, do you have a contract with
him? But he bumped you because of his
negligence so you have a case for culpa
aquiliana. So in this case, parents filed a
case for breach of contract of carriage
against the owner and the driver of the
passenger jeepney and culpa aquiliana
against the owner and driver of the Isuzu
truck. But does that really answer the
question that when you file a case for culpa
aquiliana and culpa contractual at the
same time? Not really. Because you
noticed youre not really filing two cases
against one and the same defendant. This
is one case maybe of culpa aquiliana, culpa
contractual against different sets of
defendants. What we wanna confront head
on is, can you file two cases against one
and the same set of defendants. Culpa
aquiliana, culpa contractual.
Construction Development Corp. vs
Estrella, lola and apo. Travelling via
passenger bus, before reaching
destination, collision, which trapped the
lola and apo so much so that there feet
have to be extricated. The strong impact
pushed forward their seats and pinned
their knees to the seats in front of them.
And when they regained consciousness the
rescuers had to drill a hole in the bus and
extricate their legs from under the seat.
You would file a case against the owner of
the bus and against the driver for that for
culpa contractual because that is contract
of carriage. But against the driver and
owner of the vehicle that collided with the
bus you were in, you would also want to
implead. And in that case because you
dont have a contract with that other party,
youd want to use culpa aquiliana. So in
this case, the question is can you file two
cases, aquiliana and contractual against
one and the same person cannot be done.
Instead what the court said was to give us
a hint as to how to approach this thing.
Knowing that these concepts are so
different. The other is incidental and the
4
 other is the main cause of action. The court
said that the most that you can do is to file
those two cases against probably against
one and the same person only by way of
alternative causes of action. Its not really
altogether at the same time against one
and the same person because here the
court is telling us, if at all the most that you
can do probably is alleged that as
alternative causes of action. Can you do
that? You can join parties and join causes
of action. And that is the most that can be
done in so far as culpa contractual and
culpa aquiliana is concerned.
So we try to understand the concept of culpa. Lets
focus on the other part of the definition. It says
there is culpa aquiliana if there is negligence.
But not just, there can only be culpa aquiliana
if there is negligence and no pre-existing
contractual relation. Now you can understand
why the law has said that. Because there is a
contractual relation, parties would be governed by
that contractual relation. Remember obligations
and contracts telling you that the contract is the
law between the parties. So if there is contract you
look at the rights and obligations of the parties
based on their contract. You do not look at it
negligence provision because theres already a
governing law between the parties and that case,
the contract. So you can now understand why the
law says quasi delict would only come in if there is
no contract. Because if there is contract, parties
rights and obligations is to be governed by the
contract.
And then it is supported by the bare letter of the
law. If you are a civil law country, you look at the
bare letter of the law and then we are being told
that the duty of the courts is to interpret the law. In
fact, StatCon tells you, you interpret only if there is
ambiguity because the first duty is really apply and
only when there is ambiguity will interpretation
come in. So, you use only quasi delict if there is no
contract and you can understand the rationale.
Air France vs Carascoso came in, and in
your obligations and contracts you are told
that in that old case of Air France the SC
said that there can still be tort even if
there is contract if the act that
breaches the contract is the tort itself.
Regino vs Pangasinan Colleges (2004)
the student filed a case against the school
because she was not permitted to take the
final examination because there was a
ticket she was supposed to purchase but
she did not purchase because according to
her she didnt have the means.
SC: there is a contract between student
and school because there is that contract,
the school can only ask for payment based
on what was stipulated upon but on the
other hand, the obligation also of the
student is to pay the amount stipulated
upon. So the school can only collect from
you what you have stipulated upon. So the
act the of the teacher in asking the student
to pay what was not even stated in the
contract would breach that contract, but
the student also has to pay what was
stated in the contract, otherwise the
student would also breach the contract.
But SC did not stop there and carried on
citing Air France saying that in fact, even
if there be a contract, the student can
still file a case for damages based on
tort because in the old case there can
still be tort if is the act which breaches
the contract.
THUS: So now as a rule, if you look at
the bare letters of the law, it is only
quasi delict if there is no breach of an
existing contract. When the act the
breaches the contract is in itself the
tort.
To recap, tort common law and there are several
important legal consequences. Quasi delict civil
law, tort, therefore covers any wrongful act you
can convince the judge is wrong. Whereas, quasi
delict is limited as to what is found in the law such
as 2176. So is tort broader than quasi delict?
-Yes.
Baksh case: exchange student falling in
love with a Filipina promising her marriage
which then prompted the Filipina to have
sexual relations with him so much so that
they lived together under one roof like
husband and wife. So there was this
promise of marriage that the Iranian
student wanted to make good of he even
went to the province of this lady in order
for him to ask for the hand of this lady. But
things changed she was already battered
and the promise of marriage remained and
she filed a case for damages. So kung
kita-kita lang classs, tort vs quasi delict,
tort would be broader cause it can cover
any wrongful act.
SC: if we however compare tort with our
system of redress for civil wrongs, one of
that is quasi delict, but not only that, you
look at Arts. 20 and 21 of NCC even in fact
if there is no legal wrong if you can
convince the court that there is moral
wrong the letter of the law and that is still
civil law but murag nay common law flavor.
Because when you say moral wrong it can
make the other person liable. So the court
said, tort vs our concept of civil wrongs
were gonna have to include quasi delict or
Arts 19, 20, 2176 it would seem that ours
kuno, kita ray say ga ingon would be
broader than that of tort because you have
articles 19, 20 and 2176. So tort vs civil
wrong, according to us, ours would be
more supple and adapted.
Culpa aquiliana or Quasi-delict
Art. 2176. Whoever by act or omission
causes damage to another, there being fault or
negligence, is obliged to pay for the damage done.
Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of
this Chapter.
D: Why does the law say its quasi-delict if
there is no contractual relation?
A: If there is a contract, parties should be
governed by that contract. Contract is the law
between parties and if there is already a law
governing them you dont go to quasi-delict
anymore, you go to that law.
D: Is fault synonymous with negligence? Is
there a case differentiating fault or
negligence?
Case: Child learning v. Tagorio
Timothy Tagario entered the boy's comfort
room at the third floor of the Marymount
5
 building to answer the call of nature. He,
however, found himself locked inside and
unable to get out. Timothy started to panic and
so he banged and kicked the door and yelled
several times for help. When no help arrived,
he decided to open the window to call for help.
In the process of opening the window, Timothy
went right through and fell down three stories.
Timothy was hospitalized and given medical
treatment for serious multiple physical injuries.
An action under Article 2176 of the Civil Code
was filed by respondents against the Child
Learning Center. The trial court found in favor
of respondents.
SC: The fact that Timothy fell out through the
window shows that the door could not be
opened from the inside. That sufficiently points
that something was wrong with the door, if not
the door knob, under the principle of res ipsa
loquitor. There is sufficient basis to sustain a
finding of liability on petitioners' part. Our
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
Timothy's 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
CLC's own negligence.
-Here, SC differentiated fault from negligence:
FAULT - voluntary act or omission which
causes damage to the right of another
giving rise to an obligation on the part of
the actor to repair such damage. It
requires the execution of a positive act
which causes damage to another
NEGLIGENCE - failure to observe for the
protection of the interest of another
person that degree of care, precaution
and vigilance which the circumstances
justly demand. It consists of the omission
to do acts which result in damage to
another.
D: While both are founded on the failure to do
that which has to be done, when we say fault,
it is somehow a positive failure to do
something as opposed to negligence which is
an omission to do that which you are required
to do.
-It is fault or negligence when there is that
omission which you are required to
observe depending on the nature of the
obligation, or the kind of diligence youre
supposed to observe taking into
consideration that circumstances of person,
place and time.
D: Is there a minimum standard by which you
can say that a person is negligent from the
definition in 1173? What is the minimum
standard of diligence?
Art. 1173. The fault or negligence of the
obligor consists in the omission of that
diligence which is required by the nature of
the obligation and corresponds with the
circumstances of the persons, of the time and
of the place. When negligence shows bad faith,
the provisions of Articles 1171 and 2201,
paragraph 2, shall apply.
A: the minimum is flexible in the sense that it
requires a certain level of diligence corresponding
to the circumstances of time, persons and place, if
you go into jurisprudence you will see that SC
would guide us into asking what a prudent man
would do in a situation, if youre not up to that
standard you are thereby considered negligent.
D: It seems that the standard is that of a
prudent man, good father of a family. Indeed
the standard of care is dependent on the
circumstances of the nature of the obligation and
person, place and time. There is a guidepost, the
contract can stipulate but in the absence of
stipulation you will only be responsible for things
that are foreseeable. Because things which could
not be foreseen or which foreseen are inevitable
then there should be no responsibility.
Case: Picart v. Smith
Plaintiff Amado Picart was riding on his pony on
the Carlatan Bridge in San Fernando, La Union
when the defendant, riding on his car,
approached. Defendant blew his horn to give
warning. Plaintiff moved the horse to the right
instead of moving to the left, reasoning that he
had no sufficient time to move to the right
direction. Defendant continued to approach,
and when he had gotten quite near, he quickly
turned to the left. The horse was frightened
that it turned his body across the bridge. His
limb was broken and the rider was thrown off
and got injured. The horse died. An action for
damages was filed against the defendant.
Car proper lane
Pony wrong lane
SC: As the defendant started across the
bridge, he had the right to assume that the
horse and rider would pass over to the proper
side; but as he moved toward the center of the
bridge it was demonstrated to his eyes that
this would not be done; and he must in a
moment have perceived that it was too late for
the horse to cross with safety in front of the
moving vehicle. In the nature of things this
change of situation occurred while the
automobile was yet some distance away; and
from this moment it was no longer within
the power of the plaintiff to escape being
run down by going to a place of greater
safety. The control of the situation had
then passed entirely to the defendant.
-The driver of the car was on the proper lane
and yet SC sided with Picart, although at
first, the control of the situation was with
Picart, he being on the wrong lane, at the
time that the accident became imminent,
the control over the situation was already
shifted to the defendant. It was now up to
the defendant to avoid the accident
because that would be what a prudent man
would do.
-SC found Smith negligent never mind that he
was the one on the correct lane, court was
faulting him for not taking the necessary
precaution when he saw that the pony was
not moving out of his direction.
The test by which to determine the
existence of negligence in a particular case
may be stated as follows: Did the
defendant in doing the alleged negligent
act use that reasonable care and caution
which an ordinarily prudent person would
have used in the same situation? If not,
then he is guilty of negligence.
o Conduct is said to be negligent when
a prudent man in the position of
the tortfeasor would have
6
 foreseen that an effect harmful to
another was sufficiently probable
to warrant his foregoing the
conduct or guarding against its
consequences.
-Thus, in the case: It goes without saying that
the plaintiff himself was not free from
fault, for he was guilty of antecedent
negligence in planting himself on the
wrong side of the road. But as we have
already stated, the defendant was also
negligent; and in such case the
problem always is to discover which
agent is immediately and directly
responsible.
It will be noted that the negligent acts of
the two parties were not
contemporaneous, since the negligence of
the defendant succeeded the negligence of
the plaintiff by an appreciable interval.
Under these circumstances the law is
that 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.
Case: Associated Bank v. Tan
Vicente Henry Tan is a regular
depositor-creditor of the Associated Bank.
He deposited a postdated UCPB check
with the said bank in the amount of
P101,000.00 which was added to his
original deposit. The check was duly
entered in his bank record and upon
advice and instruction of the bank that
it was already cleared and backed up
by sufficient funds, Tan, on the same
date, withdrew the sum of P240,000.00.
A day after, Tan deposited the amount
of P50,000.00 making his existing
balance in the amount of P107,793.45,
because he has issued several checks
to his business partners. However, his
suppliers and business partners went
back to him alleging that the checks
he issued bounced for insufficiency of
funds. Thereafter, Tan, thru his lawyer,
informed the bank to take positive
steps regarding the matter for he has
adequate and sufficient funds to pay
the amount of the subject checks.
Nonetheless, the bank did not bother
nor offer any apology regarding the
incident.

Given that the law said that negligence is Consequently, Tan filed a Complaint for
the failure to perform due diligence Damages with the Regional Trial Court
depending on the nature of obligation or of Cabanatuan City. The trial court
circumstances of person, time and place, rendered its decision in favor of the
there has got to be some test so that you respondent and against the petitioner.
will know that this person has failed to It was shown that respondent was not
exercise the diligence required. As early as officially informed about the debiting of
1918, the court said the question you ask the P101,000.00 from his existing
yourself if you want to know if there is balance and that the bank merely
negligence is that Could a prudent man allowed the respondent to use the
foresee harm as a result of the course fund prior to clearing merely for
actually pursued, if so it is his duty to take accommodation because the bank
necessary precaution and it is his failure to considered him as one of its valued
take the necessary precaution that would clients. It ruled that the bank manager
make him liable. was negligent in handling the particular
checking account of the respondent
-THUS: The duty to take the precaution stating that such lapses caused all the
presupposes that you were able to foresee inconveniences to the respondent.
harm. Affirming the trial court, the CA ruled
-So if in a case, you are asked to rule given the that the bank should not have
facts that are there, whether there was authorized the withdrawal of the value
negligence, what would be the elements of the deposited check prior to its
youd be looking out for? What facts would clearing. Having done so, contrary to
you pick out to determine whether there its obligation to treat respondents
was negligence? account with meticulous care, the bank
2 tests in determining negligence: violated its own policy. Without such
1. Foreseeability of harm notice, it is estopped from blaming
2. Failure to take the necessary precautions respondent for failing to fund his
account.
From the facts given, could the harm be
foreseen? SC: The banking business is impressed with
-If the facts could not be foreseen you should public interest. "Consequently, the
not be faulted for not having taken the highest degree of diligence is expected,
necessary precautions. and high standards of integrity and
-BUT: If the answer is yes (you have foreseen performance are even required of it.
the harm), was the necessary precaution By the nature of its functions, a bank
taken? is under obligation to treat the
Precaution is dependent on the accounts of its depositors with
circumstances of person, place meticulous care. The degree of diligence
and time. Some precaution you required of banks is more than that of
take of a higher degree because a good father of a family where the
you are differently situated from fiduciary nature of their relationship with
the others as you will see in the their depositors is concerned. Indeed, the
cases. banking business is vested with the
The necessary precaution and trust and confidence of the public;
even the foreseeability of harm hence the "appropriate standard of
would depend on your diligence must be very high, if not the
circumstance and the kind of highest, degree of diligence." The
obligation you have. standard applies, regardless of whether

7
the account consists of only a few
hundred pesos or of millions. The
fiduciary nature of banking, previously
imposed by case law, is now enshrined
in Republic Act No. 8791 or the General
Banking Law of 2000. Section 2 of the
law specifically says that the State
recognizes the "fiduciary nature of
banking that requires high standards of
integrity and performance." The
respondents did not treat the account
of the petitioner with highest degree of
care. It is undisputed -- nay, even
admitted -- that purportedly as an act
of accommodation to a valued client,
petitioner allowed the withdrawal of the
face value of the deposited check
prior to its clearing. That act certainly
disregarded the clearance requirement of the
banking system.
Case: Ylarde et al v. Aquino et al
Private respondent Mariano Soriano was the
principal of the Gabaldon Primary School a
public educational institution wherein
private respondent Edgardo Aquino was a
teacher therein. That time, the school was
fittered with several concrete blocks which
were remnants of the old school shop that was
destroyed in World War II. Realizing that the
huge stones were serious hazards to the
schoolchildren, another teacher by the name
of Sergio Banez started burying them.
Deciding to help his colleague, private
respondent Edgardo Aquino gathered some of
his pupils aged ten to eleven after class
dismissal to to dig beside a one-ton concrete
block in order to make a hole wherein the
stone can be buried. As teacher-in-charge, he
called Reynaldo Alonso, Francisco Alcantara,
Ismael Abaga and Novelito Ylarde, to dug until
the excavation was one meter and forty
centimeters deep. When the depth was right
enough to accommodate the concrete block,
private respondent Aquino and his four pupils
got out of the hole. He then left the students
to level the loose soil around the open
hole while he went to see Banez to get some
Rope. Before leaving. , private respondent
Aquino allegedly told the children "not to
touch the stone."Three of the four kids,
Alonso, Alcantara and Ylarde, playfully jumped
into the pit. Then, without any warning at all,
the remaining Abaga jumped on top of the
concrete block causing it to slide down towards
the opening. Alonso and Alcantara were able to
scramble out of the excavation on time but
unfortunately fo Ylarde, the concrete block
caught him before he could get out, pinning
him to the wall in a standing position which
caused him several injuries and later on
died. Petitioners filed a suit for damages
against both private respondents Aquino and
Soriano. The lower court dismissed the
complaint and was affirmed by the CA.
Was he negligent?
Was the harm foreseeable?
SC: There is foreseeable harm considering that
this involved minors who by their nature are
playful and requires supervision.
The negligent act of private respondent Aquino
in leaving his pupils in such a dangerous site
has a direct causal connection to the death of
the child Ylarde. Left by themselves, it was but
natural for the children to play around. Tired
from the strenuous digging, they just had to
amuse themselves with whatever they found.
Driven by their playful and adventurous
instincts and not knowing the risk they were
facing three of them jumped into the hole while
the other one jumped on the stone. Since the
stone was so heavy and the soil was loose from
the digging, it was also a natural consequence
that the stone would fall into the hole beside it,
causing injury on the unfortunate child caught
by its heavy weight. Everything that occurred
was the natural and probable effect of the
negligent acts of private respondent Aquino.
Needless to say, the child Ylarde would not
have died were it not for the unsafe situation
created by private respondent Aquino which
exposed the lives of all the pupils concerned to
real danger. A truly careful and cautious
person would have acted in all contrast to the
way private respondent Aquino did. Were it not
for his gross negligence, the unfortunate
incident would not have occurred and the child
Ylarde would probably be alive today, a grown-
man of thirty-five. Due to his failure to take the
necessary precautions to avoid the hazard,
Ylarde's parents suffered great anguish all
these years.
We cannot agree with the finding of the lower
court that the injuries which resulted in the
death of the child Ylarde were caused by his
own reckless imprudence. It should be
remembered that he was only ten years old at
the time of the incident. As such, he is
expected to be playful and daring. His
actuations were natural to a boy his age. The
degree of care required to be exercised must
vary with the capacity of the person
endangered to care for himself. A minor should
not be held to the same degree of care as an
adult, but his conduct should be judged
according to the average conduct of persons of
his age and experience. The standard of
conduct to which a child must conform for his
own protection is that degree of care ordinarily
exercised by children of the same age, capacity,
discretion, knowledge and experience under
the same or similar circumstances. Bearing
this in mind, We cannot charge the child Ylarde
with reckless imprudence.
You have this case illustrating how
circumstances of person can determine the
kind of precaution you take and the
foreseeability of harm.
Case: Pacis v. Morales
Alfred Dennis Pacis, then 17 years old, died due to
a gunshot wound in the head which he sustained
while he was at the Top Gun Firearm[s] and
Ammunition[s] Store located at Upper Mabini
Street, Baguio City. The gun store was owned and
operated by defendant Jerome Jovanne Morales.
The bullet which killed Alfred Dennis Pacis was fired
from a gun brought in by a customer of the gun
store for repair which was left by defendant
Morales, who was in Manila that time, in a drawer
of a table located inside the gun store. It appears
that Matibag and Herbolario later brought out the
gun from the drawer and placed it on top of the
table to which Alfred Dennis Pacis got hold of the
same. Matibag asked Alfred Dennis Pacis to return
the gun. The latter followed and handed the gun to
Matibag. It went off, the bullet hitting the young
Alfred in the head.
The trial court held that the accidental shooting of
Alfred which caused his death was partly due to the
negligence of respondents employee Aristedes
Matibag (Matibag). Matibag and Jason Herbolario
8
(Herbolario) were employees of respondent even if
they were only paid on a commission basis. Under
the Civil Code, respondent is liable for the
damages caused by Matibag on the occasion of the
performance of his duties, unless respondent
proved that he observed the diligence of a good
father of a family to prevent the damage. The
Court of Appeals held that respondent cannot be
held civilly liable since there was no
employer-employee relationship between
respondent and Matibag. The Court of Appeals
found that Matibag was not under the control of
respondent with respect to the means and
methods in the performance of his work. Even if no
employer-employee relationship existed, it found
that no negligence can be attributed to
respondent.
As to the owner of the store what is the nature of
his obligation?
What kinds of precaution should have been taken?
SC: Extraordinary diligence.
A higher degree of care is required of
someone who has in his possession or under
his control an instrumentality extremely
dangerous in character, such as dangerous
weapons or substances. Such person in
possession or control of dangerous
instrumentalities has the duty to take exceptional
precautions to prevent any injury being done
thereby. Unlike the ordinary affairs of life or
business which involve little or no risk, a business
dealing with dangerous weapons requires the
exercise of a higher degree of care.
As a gun store owner, respondent is presumed to
be knowledgeable about firearms safety and
should have known never to keep a loaded weapon
in his store to avoid unreasonable risk of harm or
injury to others. Respondent has the duty to
ensure that all the guns in his store are not
loaded. Firearms should be stored unloaded and
separate from ammunition when the firearms are
not needed for ready- access defensive use. With
more reason, guns accepted by the store for repair
should not be loaded precisely because they are
defective and may cause an accidental discharge
such as what happened in this case. Respondent
was clearly negligent when he accepted the gun for
repair and placed it inside the drawer without
ensuring first that it was not loaded. In the first
place, the defective gun should have been stored in
a vault. Before accepting the defective gun for
repair, respondent should have made sure that it
was not loaded to prevent any untoward accident.
For failing to ensure that the gun was not loaded,
respondent himself was negligent. Clearly,
respondent did not exercise the degree of care and
diligence required of a good father of a family,
much less the degree of care required of someone
dealing with dangerous weapons, as would exempt
him from liability in this case.
So theres foreseeability of harm and precautions
not properly taken, the ruling of the court was that
the owner of the store is negligent. Then you look
at the time when this happened as a measure of
determining negligence.
Case: SD Martinez
FACTS:
Carmen Ong de Martinez, was riding in a
carromata on Calle Real, district of Ermita,
city of Manila, along the left-hand side of
the street was a delivery wagon belonging
to the defendant to which was attached a
pair of horses, it came along the street in
the opposite direction to that which said
plaintiff was proceeding,
the driver of the said plaintiff's carromata,
observing that the delivery wagon of the
defendant was coming at great speed,
crowded close to the sidewalk on the
left-hand side of the street and stopped, in
order to give defendant's delivery wagon
an opportunity to pass by but that instead
of passing by the defendant's wagon, the
horses ran into the carromata occupied by
said plaintiff with her child and overturned
it, severely wounding said plaintiff by
making a serious cut upon her head, and
also injuring the carromata itself and the
harness upon the horse which was drawing
it
Defendant contended that the cochero,
who was driving his delivery wagon at the
time the accident occurred, was a good
servant and was considered a safe and
reliable cochero; that the delivery wagon
had sent to deliver some forage at Paco
Livery Stable on Calle Herran, and that for
the purpose of delivery thereof the cochero
driving the team as defendant's employee
tied the driving lines of the horses to the
front end of the delivery wagon and then
went back inside of the wagon for the
purpose of unloading the forage to be
delivered; that while unloading the
forage and in the act of carrying some
of it out, another vehicle drove by,
the driver of which cracked a whip and
made some other noises, which
frightened the horses attached to the
delivery wagon and they ran away,
and the driver was thrown from the inside
of the wagon out through the rear upon the
ground and was unable to stop the horses;
that the horses then ran up and on
which street they came into collision
with the carromata in which the
plaintiff, Carmen Ong de Martinez,
was riding
ISSUE:
Whether or not an employer who has furnished a
gentle and tractable team and a trusty and capable
driver is liable for the negligence of such driver in
handling the team
RULING:
No. It appears from the undisputed
evidence that the horses which caused the
damage were gentle and tractable; that
the cochero was experienced and capable;
that he had driven one of the horses
several years and the other five or six
months; that he had been in the habit,
during all that time, of leaving them in the
condition in which they were left on the
day of the accident; that they had never
run away up to that time and there had
been, therefore, no accident due to such
practice; that to leave the horses and
assist in unloading the merchandise in
the manner described on the day of
the accident was the custom of all
cochero who delivered merchandise
of the character of that which was
being delivered by the cochero of the
defendant on the day in question,
which custom was sanctioned by their
employers.
The duty is to exercise reasonable care and
prudence. Where reasonable care is
employed in doing an act not itself illegal
or inherently likely to produce damage to
others, there will be no liability, although
damage in fact ensues.
9
 The act of defendant's driver in leaving the
horses in the manner proved was not
unreasonable or imprudent. Acts the
performance of which has not proved
destructive or injurious and which
have, therefore, been acquiesced in
by society for so long a time that they
have ripened into custom, cannot be
held to be themselves unreasonable
or imprudent. Indeed the very reason
why they have been permitted by society
is that they beneficial rather than
prejudicial. Accidents sometimes happen
and injuries result from the most ordinary
acts of life. But such are not their natural
or customary results. To hold that,
because such an act once resulted in
accident or injury, the actor is necessarily
negligent, is to go far.
CASE: Francisco vs Cheminal Bulk
Carriers
FACTS:
Since 1965, Francisco was the owner and
manager of a Caltex station in Teresa,
Rizal. Sometime in March 1993, four
persons, including Gregorio Bacsa
(Bacsa), came to Francisco's Caltex station
and introduced themselves as employees
of CBCI. Bacsa offered to sell to Francisco
a certain quantity of CBCI's diesel fuel.
After checking Bacsa's identification card,
Francisco agreed to purchase CBCI's diesel
fuel. Francisco imposed the following
conditions for the purchase: (1) that
Petron Corporation (Petron) should deliver
the diesel fuel to Francisco at his business
address which should be properly
indicated in Petron's invoice; (2) that the
delivery tank is sealed; and (3) that Bacsa
should issue a separate receipt to
Francisco.
The deliveries started on 5 April 1993 and
lasted for ten months, or up to 25 January
1994. There were 17 deliveries to
Francisco and all his conditions were
complied with.
In February 1996, CBCI sent a demand
letter to Francisco regarding the diesel fuel
delivered to him but which had been paid
for by CBCI. CBCI demanded that
Francisco pay CBCI P1,053,527 for the
diesel fuel or CBCI would file a complaint
against him in court. Francisco rejected
CBCI's demand.
Francisco said he was satisfied with the
proof presented by Bacsa. When asked to
explain why CBCI was selling its fuel,
Bacsa allegedly replied that CBCI was in
immediate need of cash for the salary of its
daily paid workers and for petty cash.
Francisco maintained that Bacsa assured
him that the diesel fuel was not stolen
property and that CBCI enjoyed a big
credit line with Petron. Francisco agreed to
purchase the diesel fuel offered by Bacsa
on the following conditions:
1)Defendant [Francisco] will not accept
any delivery if it is not company (Petron)
delivered, with his name and address as
shipping point properly printed and
indicated in the invoice of Petron, and that
the product on the delivery tank is sealed;
[and]
2)Although the original invoice is sufficient
evidence of delivery and payment, under
ordinary course of business, defendant still
required Mr. Bacsa to issue a separate
receipt duly signed by him acknowledging
receipt of the amount stated in the invoice,
for and in behalf of CBCI.
During the first delivery on 5 April 1993,
Francisco asked one of his sons to verify
whether the delivery truck's tank was
properly sealed and whether Petron issued
the invoice. Francisco said all his
conditions were complied with. There were
17 deliveries made from 5 April 1993 to 25
January 1994 and each delivery was for
10,000 liters of diesel fuel at P65,865.
Francisco maintained that he acquired the
diesel fuel in good faith and for value.
ISSUE: WON Francisco exercised due care in
purchasing the diesel fuel from Bacsa.
RULING:
Standard of conduct is the level of
expected conduct that is required by the
nature of the obligation and corresponding
to the circumstances of the person, time
and place. The most common standard of
conduct is that of a good father of a family
or that of a reasonably prudent person. To
determine the diligence which must be
required of all persons, we use as basis the
abstract average standard corresponding
to a normal orderly person.
However, one who is physically disabled is
required to use the same degree of care
that a reasonably careful person who has
the same physical disability would
use. Physical handicaps and infirmities,
such as blindness or deafness, are treated
as part of the circumstances under which a
reasonable person must act. Thus, the
standard of conduct for a blind person
becomes that of a reasonable person who
is blind.
We note that Francisco, despite being blind,
had been managing and operating the
Caltex station for 15 years and this was not
a hindrance for him to transact business
until this time. In this instance, however,
we rule that Francisco failed to exercise
the standard of conduct expected of a
reasonable person who is blind. First,
Francisco merely relied on the
identification card of Bacsa to determine if
he was authorized by CBCI. Francisco did
not do any other background check on the
identity and authority of Bacsa. Second,
Francisco already expressed his misgivings
about the diesel fuel, fearing that they
might be stolen property, yet he did not
verify with CBCI the authority of Bacsa to
sell the diesel fuel. Third, Francisco relied
on the receipts issued by Bacsa which were
typewritten on a half sheet of plain bond
paper. If Francisco exercised reasonable
diligence, he should have asked for an
official receipt issued by CBCI. Fourth, the
delivery to Francisco, as indicated in
Petron's invoice, does not show that CBCI
authorized Bacsa to sell the diesel fuel to
Francisco. Clearly, Francisco failed to
exercise the standard of conduct expected
of a reasonable person who is blind.
- Here, SC asked: What standard
10
 of care are persons who are
blind require to observe? and
that is the average standard of a
normal person but if the person
is blind than the standard of care
is the average standard of a
reasonably blind person. In this
case, it would have been
different had it not been shown
that he was a seasoned
businessman.
Negligence is dependent on the
nature of obligation, circumstance of
person, place and time.
Tests of Negligence (1)
forseeability of harm and (2) if harm
is forseeable, failure to take
necessary precaution.
- He who alleges negligence has
the burden of proof. The one
who alleges negligence has the
burden of proving negligence.
Case: ALANO VS MAGUD-LOGMAO
FACTS:
This case involves a claim for damages against
the Executive Director of the National Kidney
Institute (NKI). It started when Arnelito Logmao,
then 18y.o, was brought by two sidewalk vendors
to the East Avenue Medical Center (EAMC) in
Quezon after he fell from the overpass. In the
hospital, his patient data sheet identified him as
"Angelito Lugmos" of Mandaluyong. In his medical
report, he was drowsy with alcoholic breath, was
conscious and coherent; that the skull x-ray
showed no fracture; But because he later on
developed generalized seizures and his condition
progressively deteriorated, admission to ICU was
necessary. There was no vacancy at the ICU and so
a resident physician of NKI, suggested that
[Logmao] be transferred to NKI; and that after
arrangements were made, [Logmao] was
transferred to NKI.
At the NKI, Dr. Enrique T. Ona, Chairman of
the Department of Surgery, observed that
Lugmoso manifested symptoms of brain death. He
requested a tissue typing and tissue
cross-matching examination, so that should
Lugmoso expire, he would be found to be a suitable
organ donor. He also requested his staff that the
family should also be located so they could consent
to organ donation. The diagnosis of brain death
was confirmed but they also declared that
Lugmoso was a suitable organ donor and that
some NKI patients awaiting organ donation had
blood and tissue types compatible with Lugmoso.
As the extensive search for the relatives of
Lugmoso yielded no positive result and time being
of the essence in the success of organ
transplantation, Dr. Ona requested Dr. Filoteo A.
Alano, Executive Director of NKI, to authorize the
removal of specific organs from the body of
Lugmoso for transplantation purposes. Before
doing so, they first secured permission for the
planned organ retrieval and transplantation from
the Medico-Legal Office NBI, who certified that
since NKI has already exerted reasonable efforts to
locate the relatives of the deceased, NKI
Department of Surgery may retrieve and remove
the kidneys, pancreas, liver and heart of the said
deceased patient and to transplant the said organs
to any compatible patient who maybe in need of
said organs to live and survive.
NKI issued a press release announcing its
successful double organ transplantation. The news
aired on television that the donor was an eighteen
(18) year old boy whose remains were at La
Funeraria Oro in Quezon City. The news report
reached the deceased patients mother. Because
the name Angelito sounded as Arnelito, plaintiff,
her cousin, and her other children went to La
Funeraria Oro, where they saw Arnelito inside a
cheap casket. She plaintiff filed with the court a
quo a complaint for damages against the NKI and
La Funeraria for their alleged conspiracy to remove
the organs of Arnelito while the latter was still alive
and that they concealed his true identity.
ISSUE: WON there was negligence (on the part of
NKI) in granting authorization for the removal or
retrieval of the internal organs of respondent's son
who had been declared brain dead.
RULING:
Petitioner maintains that when he gave
authorization for the removal Republic Act (R.A.)
No. 349, as amended by Presidential Decree (P.D.)
856, i.e., giving his subordinates instructions to
exert all reasonable efforts to locate the relatives
or next of kin of respondent's son. In fact,
announcements were made through radio and
television, the assistance of police authorities was
sought, and the NBI Medico-Legal Section was
notified.
A careful reading of the above shows that
petitioner instructed his subordinates to "make
certain" that "all reasonable efforts" are exerted to
locate the patient's next of kin, even enumerating
ways in which to ensure that notices of the death of
the patient would reach said relatives. It also
clearly stated that permission or authorization to
retrieve and remove the internal organs of the
deceased was being given ONLY IF the provisions
of the applicable law had been complied with. As
found by the lower courts from the records of the
case, the doctors and personnel of NKI
disseminated notices of the death of respondent's
son to the media and sought the assistance of the
appropriate police authorities. Prior to performing
the procedure for retrieval of the deceased's
internal organs, the doctors concerned also the
sought the opinion and approval of the
Medico-Legal Officer of the NBI.
On the matter/issue that the notices did not
properly state the name or identity of the deceased,
fault cannot be laid at petitioner's door. The trial
and appellate courts found that it was the EAMC,
who had the opportunity to ascertain the name of
the deceased, who recorded the wrong information
regarding the deceased's identity to NKI. The NKI
could not have obtained the information about his
name from the patient, because as found by the
lower courts, the deceased was already
unconscious by the time he was brought to the
NKI.
Ultimately, it is respondent's failure to adduce
adequate evidence that doomed this case. They
failed to present any expert witness to prove that
given the medical technology and knowledge at
that time in the 1980's, the doctors could or should
have waited longer before harvesting the internal
organs for transplantation.
Finding petitioner liable for damages is
improper. It should be emphasized that the
internal organs of the deceased were removed only
after he had been declared brain dead; thus, the
emotional pain suffered by respondent due to the
death of her son cannot in any way be attributed to
petitioner. Neither can the Court find evidence on
11
record to show that respondent's emotional
suffering at the sight of the pitiful state in which
she found her son's lifeless body be categorically
attributed to petitioner's conduct.
In this case the court said, the burden is on the one
who alleges negligence.
- There are instances that you are
relieved from the burden of
having to establish negligence
because there are instances that
negligence is presumed.
PRESUMPTIONS OF NEGLIGENCE
Art. 2184. In motor vehicle mishaps, the owner is
solidarily liable with his driver, if the former, who
was in the vehicle, could have, by the use of the
due diligence, prevented the misfortune. It is
disputably presumed that a driver was negligent, if
he had been found guilty or reckless driving or
violating traffic regulations at least twice within the
next preceding two months.
If the owner was not in the motor vehicle, the
provisions of Article 2180 are applicable.
Art. 2185. Unless there is proof to the contrary, it
is presumed that a person driving a motor vehicle
has been negligent if at the time of the mishap, he
was violating any traffic regulation.
Art. 2188. There is prima facie presumption of
negligence on the part of the defendant if the
death or injury results from his possession of
dangerous weapons or substances, such as
firearms and poison, except when the possession
or use thereof is indispensable in his occupation or
business.
- So these
presumptions take away the
burden of having to establish
negligence. All you need to elicit
is the fact of violating these
traffic rules.
Case: Kapalaran Bus Line v. Coronado,
G.R. No. 85331
1. The jeepney driven by Lope Grajera
was then coming from Pila, Laguna on its
way towards the direction of Sta. Cruz,
traversing the old highway. As it reached
the intersection where there is a traffic
sign 'yield,' it stopped and cautiously
treated the intersection as a 'Thru Stop'
street, which it is not.
2. The KBL bus was on its way from Sta.
Cruz, Laguna, driven by its regular
driver Virgilio Llamoso, on its way
towards Manila. The regular itinerary of
the KBL bus is through the town proper of
Pila, Laguna, but at times it avoids this if a
bus is already fully loaded with passengers
and can no longer accommodate additional
passengers. As the KBL bus neared the
intersection, Virgilio Llamoso inquired
from his conductor if they could still
accommodate passengers and learning
that they were already full, he decided to
bypass Pila and instead, to proceed along
the national highway. Virgilio Llamoso
admitted that there was another motor
vehicle ahead of him.
3. The general rule is that the vehicle on the
national highway has the right-of-way as
against a feeder road. Another general rule
is that the vehicle coming from the right
has the right-of-way over the vehicle
coming from the left. The general rules on
right-of-way may be invoked only if both
vehicles approach the intersection at
almost the same time. In the case at bar,
both roads are national roads. Also, the
KBL bus was still far from the intersection
when the jeepney reached the same. As
testified to by Atty. Conrado L. Manicad
who was driving a Mustang car coming
from the direction of Sta. Cruz and
proceeding towards the direction of
Manila, he stopped at the intersection to
give way to the jeepney driven by Grajera.
Behind Manicad were two vehicles, a car of
his client and another car. A Laguna
Transit bus had just entered the town of
Pila ahead of Atty. Manicad.
4. The sketch marked Exhibit 'E' indicates
very clearly that the jeepney had already
traversed the intersection when it met the
KBL bus head-on. It is also obvious that
the point of impact was on the right lane of
the highway which is the lane properly
belonging to the jeepney. As testified to by
Lope Grajera, the KBL bus ignored the
stopped vehicles of Atty. Manicad and the
other vehicles behind Atty. Manicad and
overtook both vehicles at the intersection,
therefore, causing the accident.
5. The sequence of events shows that
the first vehicle to arrive at the
intersection was the jeepney. Seeing
that the road was clear, the jeepney which
had stopped at the intersection began to
move forward, and for his part, Atty.
Manicad stopped his car at the intersection
to give way to the jeepney. At about this
time, the KBL bus was approaching the
intersection and its driver was engaged in
determining from his conductor if they
would still pass through the town proper of
Pila. Upon learning that they were already
full, he turned his attention to the road and
found the stopped vehicles at the
intersection with the jeepney trying to
cross the intersection. The KBL bus had no
more room within which to stop without
slamming into the rear of the vehicle
behind the car of Atty. Manicad. The KBL
driver chose to gamble on proceeding on
its way, unfortunately, the jeepney driven
by Grajera, which had the right-of-way,
was about to cross the center of the
highway and was directly on the path of
the KBL bus. The gamble made by Llamoso
did not pay off. The impact indicates that
the KBL bus was travelling at a fast rate of
speed because, after the collision, it did
not stop; it travelled for another 50 meters
and stopped only when it hit an electric
post.
6. Kapalaran, filed a complaint for damage to
property and physical injuries through
reckless imprudence against respondents
Angel Coronado (lawyer) and Lope Grajera
(jeepney driver) in the Regional Trial Court
wherein the trial court rendered a
judgment in favor of private respondents
and ordering Kapalaran to pay Coronado
12
 and a passenger of the jeepney who
intervened. CA affirmed
Issue:
1. WON Kapalaran can assail the findings of
fact of the Regional Trial Court and of the
Court of Appeals, and insist that
respondent Grajera, driver of the jeepney,
was at fault and not the driver of
Kapalaran's bus
Ruling:
1. Immediately before the collision, the bus
driver was actually violating the following
traffic rules and regulations thus, a legal
presumption arose that the bus driver was
negligent a presumption Kapalaran was
unable to overthrow.
2. The patent and gross negligence on the
part of petitioner Kapalaran's driver
raised the legal presumption that
Kapalaran as employer was guilty of
negligence either in the selection or in
the supervision of its bus drivers.
Where the employer is held liable for
damages, it has of course a right of
recourse against its own negligent
employee. If petitioner Kapalaran was
interested in maintaining its right of
recourse against or reimbursement
from its own driver, it should have
appealed from that portion of the trial
court's decision which had failed to
hold the bus driver responsible for
any damage. Contrary to Kapalaran's
pretense, its liability for the acts and
negligence of its bus driver is not "merely
subsidiary," and is not limited to cases
where the employee "cannot pay his
liability," nor are private respondents
compelled first to proceed against the
bus driver. The liability of the
employer under Article 2180 of the
Civil Code is direct and immediate; it
is not conditioned upon prior recourse
against the negligent employee and a
prior showing of the insolvency of
such employee. So far as the record
shows, petitioner Kapalaran was
unable to rebut the presumption of
negligence on its own part.
Art. 2185. Unless there is proof to the contrary, it
is presumed that a person driving a motor vehicle
has been negligent if at the time of the mishap, he
was violating any traffic regulation.
- So if you violated traffic
regulation, the presumption is
on you that you are the one who
is negligent.
Anonuevo v. CA
Facts: Villagracia was traveling on his bicycle,
while Aonuevo, traversing the opposite lane
driving his Lancer car. Aonuevo was in the course
of making a left turn when the collision occurred.
Villagracia sustained serious injuries as a result,
which necessitated his hospitalization several
times and forced him to undergo 4 operations.
Villagracia instituted an action for damages against
Procter and Gamble Phils., Inc. and Aonuevo.
Villagracia proferred that Aonuevo was
"umaarangkada," or speeding as he made the left
turn. He had enough warning to control his speed;
and that Aonuevo failed to exercise the ordinary
precaution, care and diligence required of him in
order that the accident could have been avoided.
On the other hand, Aonuevo points out that
Villagracia's bicycle had no safety gadgets such as
a horn or bell, or headlights, as invoked by a 1948
municipal ordinance. Nor was it duly registered
with the Office of the Municipal Treasurer, as
required by the same ordinance. Finally, as
admitted by Villagracia, his bicycle did not have
foot brakes.
Issue1: Whether Article 2185 of the New Civil
Code, which presumes the driver of a motor
vehicle negligent if he was violating a traffic
regulation at the time of the mishap, should apply
by analogy to non-motorized vehicles?
Ruling1: No. Its applicability is expressly qualified
to motor vehicles only, and there is no ground to
presume that the law intended a broader coverage.
At the time Article 2185 was formulated, there
existed a whole array of non-motorized vehicles
ranging from human-powered contraptions on
wheels such as bicycles, scooters, and
animal-drawn carts such as calesas and carromata.
These modes of transport were even more
prevalent on the roads of the 1940s and 1950s
than they are today, yet the framers of the New
Civil Code chose then to exclude these alternative
modes from the scope of Article 2185 with the use
of the term "motorized vehicles."
Motorists are required to exercise ordinary or
reasonable care to avoid collision with
bicyclists. While the duty of using ordinary care
falls alike on the motorist and the rider or driver of
a bicycle, it is obvious, for reasons growing out of
the inherent differences in the two vehicles, that
more is required from the former to fully discharge
the duty than from the latter.
Issue2: Whether or not Villagracia incurred
contributory negligence
Ruling2: No. While the legal argument as
formulated by Aonuevo is erroneous, his core
contention that Villagracia was negligent for failure
to comply with traffic regulations warrants serious
consideration, especially since the imputed
negligent acts were admitted by Villagracia himself.
Negligence per se, for the reason that
non-observance of what the legislature has
prescribed as a suitable precaution, is failure to
observe that care which an ordinarily prudent man
would observe, and, when the state regards
certain acts as so liable to injure others as to justify
their absolute prohibition, doing the forbidden act
is a breach of duty with respect to those who may
be injured thereby. According to this view it is
immaterial, where a statute has been violated,
whether the act or omission constituting such
violation would have been regarded as negligence
in the absence of any statute on the subject or
whether there was, as a matter of fact, any reason
to anticipate that injury would result from such
violation.
It cannot be denied that the statutory purpose for
requiring bicycles to be equipped with headlights
or horns is to promote road safety and to minimize
the occurrence of road accidents involving bicycles.
At face value, Villagracia's mishap was precisely
the danger sought to be guarded against by the
ordinance he violated. Aonuevo argues that
Villagracia's violation should bar the latter's
recovery of damages, and a simplistic
interpretation of negligence per se might vindicate
such an argument. However, there is the fact which
we consider as proven, that Aonuevo was
speeding as he made the left turn, and such
negligent act was the proximate cause of the
accident. This reckless behavior would have
13
imperiled anyone unlucky enough within the path
of Aonuevo's car as it turned into the intersection,
whether they are fellow motorists, pedestrians, or
cyclists. This Court has appreciated that
negligence per se, arising from the mere violation
of a traffic statute, need not be sufficient in itself in
establishing liability for damages. Negligence, is
without legal consequence unless it is a
contributing cause of the injury. The bare fact that
Villagracia was violating a municipal ordinance at
the time of the accident may have sufficiently
established some degree of negligence on his part,
but such negligence is without legal consequence
unless it is shown that it was a contributing cause
of the injury. If anything at all, it is but indicative of
Villagracia's failure in fulfilling his obligation to the
municipal government, which would then be the
proper party to initiate corrective action as a result.
But such failure alone is not determinative of
Villagracia's negligence in relation to the accident.
The rule on negligence per se must admit
qualifications that may arise from the logical
consequences of the facts leading to the mishap.
The doctrine (and Article 2185, for that matter) is
undeniably useful as a judicial guide in adjudging
liability, for it seeks to impute culpability arising
from the failure of the actor to perform up to a
standard established by a legal fiat. But the
doctrine should not be rendered inflexible so as to
deny relief when in fact there is no causal relation
between the statutory violation and the injury
sustained. Presumptions in law, while convenient,
are not intractable so as to forbid rebuttal rooted in
fact. After all, tort law is remunerative in spirit,
aiming to provide compensation for the harm
suffered by those whose interests have been
invaded owing to the conduct of others.
The failure of the bicycle owner to comply with
accepted safety practices, whether or not imposed
by ordinance or statute, is not sufficient to negate
or mitigate recovery unless a causal connection is
established between such failure and the injury
sustained. Settled is the rule that damages may be
mitigated if the claimant "in conjunction with the
occurrence, [contributes] only to his injury." it
must be shown that he performed an act that
brought about his injuries in disregard of warnings
or signs of an impending danger to health and
body. To prove contributory negligence, it is still
necessary to establish a causal link, although not
proximate, between the negligence of the party
and the succeeding injury. In a legal sense,
negligence is contributory only when it contributes
proximately to the injury, and not simply a
condition for its occurrence.
*General Rule: The one who alleges negligence
has the burden of proof
Exception: Presumption of negligence (2184, 2185
and 2188)
Res Ipsa Loquitur
Case: AFRICA V. CALTEX [PHIL], GR
NO.L-12986, MAR. 31, 1966
FACTS: A fire broke out at the Caltex service
station in Manila. It started while gasoline was
being hosed from a tank truck into the
underground storage, right at the opening of the
receiving truck where the nozzle of the hose was
inserted. The fire then spread to and burned
several neighboring houses, including the personal
properties and effects inside them. The owners of
the houses, among them petitioners here, sued
Caltex and Boquiren (agent in charge of
operation).Trial court and CA found that petitioners
failed to prove negligence and that respondents
had exercised due care in the premises and with
respect to the supervision of their employees. Both
courts refused to apply the doctrine of res ipsa
loquitur on the grounds that as to its applicability
xxx in the Philippines, there seems to be nothing
definite, and that while the rules do not prohibit its
adoption in appropriate cases, in the case at bar,
however, we find no practical use for such
doctrine.
ISSUE: W/N without proof as to the cause and
origin of the fire, the doctrine of res ipsa loquitur
should apply as to presume negligence on the part
of the appellees.
HELD: DOCTRINE OF RES IPSA LOQUITUR
APPLIES. CALTEX IS LIABLE.
Res ipsa Loquitur is a rule to the effect that where
the thing which caused the injury complained of is
shown to be under the management of defendant
or his servants and the accident is such as in the
ordinary course of things does not happen if those
who have its management or control use proper
care, it affords reasonable evidence, in absence of
explanation of defendant, that the incident
happened because of want of care.
The gasoline station, with all its appliances,
equipment and employees, was under the control
of appellees. A fire occurred therein and spread to
and burned the neighboring houses. The person
who knew or could have known how the fire started
were the appellees and their employees, but they
gave no explanation thereof whatsoever. It is fair
and reasonable inference that the incident
happened because of want of care.
The report by the police officer regarding the fire,
as well as the statement of the driver of the
gasoline tank wagon who was transferring the
contents thereof into the underground storage
when the fire broke out, strengthen the
presumption of negligence. Verily, (1) the station is
in a very busy district and pedestrians often pass
through or mill around the premises; (2) the area
is used as a car barn for around 10 taxicabs owned
by Boquiren; (3) a store where people hang out
and possibly smoke cigarettes is located one meter
from the hole of the underground tank; and (4) the
concrete walls adjoining the neighborhood are only
212 meters high at most and cannot prevent the
flames from leaping over it in case of fire.
In this case, there was fire in the gasoline station
that revaged the entire neighborhood and it was
difficult to establish who was negligent. In the case,
the elements of Res Ipsa Loquitur are as follows:
(1) it would not have happened had somebody
been negligent, (2) the cause of the incident is
under the exclusive control of the person in charge
and (3) the injury suffered was not caused by the
voluntary action of the one injured.
Case: PERLA COMPANIA DE SEGUROS,
INC. vs SPS.SARANGAYA, GR 147746,
OCT. 25, 2005
FACTS: Spouses Sarangaya erected a building
known as Super a Building and was subdivided
into three doors, each of which was leased out. The
two-storey residence of the Sarangayas was
behind the second and third doors of the building.
Perla Compania, through its branch manager and
co-petitioner Bienvenido Pascual, entered into a
contract of lease of the first door of the Super A
Building. He renovated the rented space and
divided it into two. The left side was converted into
14
an office, while the right was used by Pascual as a
garage for his 4-door Ford Cortina. He left for
Pampanga but did not bring the car with him.
Three days later, he returned, and decided to
warm up the car. When he pulled up the
handbrake and switched on the ignition key, the
engine made an odd sound and did not start. He
again stepped on the accelerator and started the
car but petitioner again heard an unusual sound.
He then saw a small flame coming out of the
engine. Startled, he turned it off, alighted from the
vehicle and started to push it out of the garage
when suddenly, fire spewed out of its rear
compartment and engulfed the whole garage.
Pascual was trapped inside and suffered burns on
his face, legs and arms. Meanwhile, respondents
were busy watching television when they heard
two loud explosions. In no time, fire spread inside
their house, destroying all their belongings,
furniture and appliances. The city fire marshall
submitted a report to the provincial fire marshall
and concluded that the fire was accidental. The
report also disclosed that petitioner-corporation
had no fire permit as required by law. Based on the
same report, a criminal complaint for Reckless
Imprudence Resulting to Damage in Property was
filed against petitioner Pascual. On the other hand,
Perla Compania was asked to pay the amount of
P7,992,350, inclusive of the value of the
commercial building. Spouses Sarangaya later on
filed a civil complaint based on quasi-delict against
petitioners for a sum of money and damages,
alleging that Pascual acted with gross negligence
while petitioner-corporation lacked the required
diligence in the selection and supervision of
Pascual as its employee.
ISSUES: WON Pascual is liable
HELD: a.) YES, Pascual liable under res ipsa
loquitur doctrine. Res ipsa loquitur is a Latin
phrase which literally means the thing or the
transaction speaks for itself. It relates to the fact
of an injury that sets out an inference to the cause
thereof or establishes the plaintiffs prima facie
case. The doctrine rests on inference and not on
presumption. The facts of the occurrence warrant
the supposition of negligence and they furnish
circumstantial evidence of negligence when direct
evidence is lacking. The doctrine is based on the
theory that the defendant either knows the
cause of the accident or has the best
opportunity of ascertaining it and the
plaintiff, having no knowledge thereof, is
compelled to allege negligence in general
terms. In such instance, the plaintiff relies on
proof of the happening of the accident alone to
establish negligence. The doctrine provides a
means by which a plaintiff can pin liability on a
defendant who, if innocent, should be able to
explain the care he exercised to prevent the
incident complained of. Thus, it is the defendants
responsibility to show that there was no negligence
on his part.
To sustain the allegation of negligence based on
the doctrine of res ipsa loquitur, the following
requisites must concur:
1) the accident is of a kind which does not
ordinarily occur unless someone is negligent; 2)
the cause of the injury was under the exclusive
control of the person in charge and 3) the injury
suffered must not have been due to any voluntary
action or contribution on the part of the person
injured.
Under the first requisite, the occurrence must be
one that does not ordinarily occur unless there is
negligence. A flame spewing out of a car engine,
when it is switched on, is obviously not a normal
event. Neither does an explosion usually occur
when a car engine is revved. Hence, in this case,
without any direct evidence as to the cause of the
accident, the doctrine of res ipsa loquitur comes
into play and from it, we draw the inference that
based on the evidence at hand, someone was in
fact negligent and responsible for the accident.
Under the second requisite, the instrumentality
or agency that triggered the occurrence must be
one that falls under the exclusive control of the
person in charge thereof. In this case, the car
where the fire originated was under the control of
Pascual. Being its caretaker, he alone had the
responsibility to maintain it and ensure its proper
functioning. Where the circumstances which
caused the accident are shown to have been under
the management or control of a certain person
and, in the normal course of events, the incident
would not have happened had that person used
proper care, the inference is that it occurred
because of lack of such care. The burden of
evidence is thus shifted to defendant to establish
that he observed all that was necessary to prevent
the accident from happening. In this aspect,
Pascual utterly failed.
Under the third requisite, there is nothing in the
records to show that respondents contributed to
the incident. They had no access to the car and had
no responsibility regarding its maintenance even if
it was parked in a building they owned.
TEST TO DETERMINE NEGLIGENCE:
- did the defendant in committing
the alleged negligent act, use
reasonable care and caution
which an ordinarily prudent
person in the same situation
would have employed? If not,
then he is guilty of negligence.
- Here, the fact that Pascual, as
the caretaker of the car, failed to
submit any proof that he had it
periodically checked (as its
year-model and condition
required) revealed his
negligence. A prudent man
should have known that a
14-year-old car, constantly used
in provincial trips, was definitely
prone to damage and other
defects. For failing to prove care
and diligence in the
maintenance of the vehicle, the
necessary inference was that
Pascual had been negligent in
the upkeep of the car.
b.) YES, COMPANIA LIABLE UNDER TORT
In the selection of prospective employees,
employers are required to examine them as to
their qualifications, experience and service records.
While the petitioner-corporation does not appear
to have erred in considering Pascual for his position,
its lack of supervision over him made it jointly and
solidarily liable for the fire. In the supervision of
employees, the employer must formulate standard
operating procedures, monitor their
implementation and impose disciplinary measures
for the breach thereof. To fend off vicarious liability,
employers must submit concrete proof, including
documentary evidence that they complied with
everything that was incumbent on them. Here,
petitioner-corporations evidence hardly included
any rule or regulation that Pascual should have
observed in performing his functions. It also did
not have any guidelines for the maintenance and
15
upkeep of company property like the vehicle that
caught fire. Petitioner-corporation did not require
periodic reports on or inventories of its properties
either. Based on these circumstances,
petitioner-corporation clearly did not exert effort to
be apprised of the condition of Pascuals car or its
serviceability.
TN: Res Ipsa Loquitur is not a presumption of
negligence, but a Doctrine on Inference. Its
a matter of inference because you still have
to establish the 3 elements before you can
make an inference that the defendant must
have been negligent. Inference can be made
only when the direct evidence is lacking.
Case: Layugan v. IAC
Facts: Pedro T. Layugan filed an action for
damages against Godofredo Isidro, alleging that
while at Baretbet, Bagabag, Nueva Vizcaya, the
Plaintiff and a companion were repairing the tire of
their cargo truck which was parked along the right
side of the National Highway; that defendant's
truck, driven recklessly by Daniel Serrano bumped
the plaintiff, that as a result, plaintiff was injured
and hospitalized where he incurred and will incur
more expenses as he recuperates from said
injuries; Plaintiff's right leg was amputated and
that because of said injuries he would be deprived
of a lifetime income.
Defendants Isidro [owner] and Serrano [driver]
averred that he knows his responsibilities as a
driver and further contends that it was the
negligence of plaintiff that was the proximate
cause of the accident. They alleged that plaintiff
parked his truck in a manner which occupied a part
of the highway and he did not even put a warning
sign.
The RTC ruled in favor of the Petitioners. The CA
reversed the decision, stating that it is the
petitioners who were negligent since they did not
exercise caution by putting warning signs that their
truck is park on the shoulder of the highway.
Issue: Whether or not Isidro is liable as employer
of Serrano.
Ruling:Yes!
The SC held that the CA erroneously appreciated
the evidence. It was proven that the petitioner
placed a warning sign within 3 to 4 meters from
their truck in the form of a lighted kerosene lamp.
The existence of this warning sings was
corroborated by Serrano, respondent's driver, and
further stated that when he saw a parked truck, he
kept on stepping on the brake pedal but it did not
function. Thus despite this warning signs, the
truck recklessly driven by Serrano and owned by
Respondent Isidro bumped the truck of petitioner.
The private respondent is sued under Art. 2176 in
relation to Art. 2180, paragraph 5, of the Civil Code.
In the latter, when an injury is caused by the
negligence of a servant or employee there
instantly arises a presumption of law that there
was negligence on the part of the master or
employer either in the selection of the servant or
employee, or in supervision over him after
selection, or both. Such presumption is juris
tantum and not juris et de jure and consequently,
may be rebutted. If follows necessarily that if the
employer shows to the satisfaction of the court
that in the selection and in the supervision he has
exercised the care and diligence of a good father of
a family, the presumption is overcome and he is
relieved from liability. In disclaiming liability for the
incident, the private respondent stresses that the
negligence of his employee has already been
adequately overcome by his driver's statement
that he knew his responsibilities as a driver and
that the truck owner used to instruct him to be
careful in driving.
We do not agree with the private respondent in his
submission. In the first place, it is clear that the
driver did not know his responsibilities because he
apparently did not check his vehicle before he took
it on the road. If he did he could have discovered
earlier that the brake fluid pipe on the right was cut,
and could have repaired it and thus the accident
could have been avoided. Moreover, to our mind,
the fact that the private respondent used to
instruct his driver to be careful in his driving, that
the driver was licensed, and the fact that he had no
record of any accident, as found by the respondent
court, are not sufficient to destroy the finding of
negligence of the Regional Trial Court given the
facts established at the trial. The private
respondent or his mechanic, who must be
competent, should have conducted a thorough
inspection of his vehicle before allowing his driver
to drive it.
In the light of the circumstances obtaining in the
case, we hold that Isidro failed to prove that the
diligence of a good father of a family in the
supervision of his employees which would
exculpate him from solidary liability with his driver
to the petitioner. But even if we concede that the
diligence of a good father of a family was observed
by Isidro in the supervision of his driver, there is
not an iota of evidence on record of the observance
by Isidro of the same quantum of diligence in the
supervision of his mechanic, if any, who would be
directly in charge in maintaining the road
worthiness of his (Isidro's) truck. But that is not all.
There is paucity of proof that Isidro exercised the
diligence of a good father of a family in the
selection of his driver, Daniel Serrano, as well as in
the selection of his mechanic, if any, in order to
insure the safe operation of his truck and thus
prevent damage to others. Accordingly, the
responsibility of Isidro as employer treated in
Article 2180, paragraph 5, of the Civil Code has not
ceased
What Doctrine of Res Ipsa Loquitor Is Not
- The doctrine cannot be invoked
when there is direct evidence,
the doctrine can be invoked
when and only when under the
circumstances involved direct
evidence is not readily available
or is absent.
Case: CARMEN, JR. V. BACOY G.R. NO.
173870 APRIL 25, 2012
FACTS: At dawn on New Year's Day of 1993, Emilia
Bacoy Monsalud (Emilia), along with her spouse
Leonardo Monsalud, Sr. and their daughter Glenda
Monsalud, were on their way home from a
Christmas party they attended in Poblacion,
Sominot, Zamboanga Del Sur. Upon reaching
Purok Paglaom in Sominot, they were run over by a
Fuso passenger jeep bearing plate number
UV-PEK-600 that was being driven by Allan
Maglasang (Allan). The jeep was registered in the
name of petitioner Oscar del Carmen, Jr. (Oscar Jr.)
and used as a public utility vehicle plying the
Molave, Zamboanga del Sur to Sominot,
Zamboanga del Sur and vice versa route. During
the pendency of said criminal case, Emilia's father,
Geronimo Bacoy (Geronimo), in behalf of the six
minor children of the Monsaluds, filed Civil Case No.
16
96- 20219, an independent civil action for
damages based on culpa aquilian. Oscar Jr.'s core
defense to release him from responsibility for the
death of the Monsaluds is that his jeep was stolen.
He highlights that the unauthorized taking of the
jeep from the parking area was indeed carried out
by the clandestine and concerted efforts of Allan
and his five companions, notwithstanding the
obstacles surrounding the parking area and the
weight of the jeep.
ISSUE: WON res ipsa loquitur will apply in this
case?
HELD: YES. Under the doctrine of res ipsa loquitur,
"[w]here the thing that caused the injury
complained of is shown to be under the
management of the defendant or his servants; and
the accident, in the ordinary course of things,
would not happen if those who had management or
control used proper care, it affords reasonable
evidence in the absence of a sufficient,
reasonable and logical explanation by defendant
that the accident arose from or was caused by the
defendant's want of care. The requisites of the
doctrine of res ipsa loquitur as established by
jurisprudence are as follows: 1) the accident is of a
kind which does not ordinarily occur unless
someone is negligent; 2) the cause of the injury
was under the exclusive control of the person in
charge and 3) the injury suffered must not have
been due to any voluntary action or contribution on
the part of the person injured. The requisites are
all present in this case. First, no person just
walking along the road would suddenly be
sideswiped and run over by an on-rushing vehicle
unless the one in charge of the said vehicle had
been negligent. Second, the jeep which caused the
injury was under the exclusive control of Oscar Jr.
as its owner. When Oscar Jr. entrusted the ignition
key to Rodrigo, he had the power to instruct him
with regard to the specific restrictions of the jeep's
use, including who or who may not drive it. As he is
aware that the jeep may run without the ignition
key, he also has the responsibility to park it safely
and securely and to instruct his driver Rodrigo to
observe the same precaution. Lastly, there was no
showing that the death of the victims was due to
any voluntary action or contribution on their part.
Case: SOLIDUM VS. PEOPLE
FACTS: On June 2, 1992, Gerald Albert Gercayo
(Gerald) was born with an imperforate anus.
Hence, two days after his birth, he underwent
colostomy which enabled him to excrete through a
colostomy bag attached to the side of his body.
Three years later or on May 17, 1995, he was
admitted at the Ospital ng Maynila for a
pull-through operation. The surgical team
consisted of Dr. Resurreccion, Dr. Luceo, Dr. Valea,
and Dr. Tibio. The anesthesiologists included Dr.
Abella, Dr. Razon and herein Petitioner Dr.
Solidum. It was during the said operation that
Gerald experienced bradycardia or an abnormally
slow heart rate of less than 60 beats per minute.
He subsequently went into a coma which lasted for
two weeks. When he regained consciousness after
a month, he could no longer see, hear, or move.
Ma. Luz Gercayo (Luz) lodged a complaint for
reckless imprudence resulting in serious physical
injuries against the attending physicians.
The RTC found Dr. Solidum guilty beyond
reasonable doubt of reckless imprudence resulting
to serious physical injuries. The CA affirmed the
conviction of Dr. Solidum.
ISSUES: Whether or not the doctrine of res ipsa
loquitur applies in this case?
HELD: The Court of Appeals decision is overruled.
TORTS: applicability of the Doctrine of Res Ipsa
Loquitur
The Court held that the application the doctrine of
res ipsa loquitur in the case at bar is inappropriate.
Res ipsa loquitur is literally translated as the thing
or the transaction speaks for itself. Jarcia, Jr. v.
People, G.R. No. 187926 laid down that, here the
thing which causes injury is shown to be under the
management of the defendant, and the accident is
such as in the ordinary course of things does not
happen if those who have the management use
proper care, it affords reasonable evidence, in the
absence of an explanation by the defendant, that
the accident arose from want of care. Hence, the
requisites for the doctrine to apply are as follows:
(1) the accident was of the kind that does not
ordinarily occur unless someone is negligent; (2)
the instrumentality or agency that caused the
injury was under the exclusive control of the
person charged; and (3) the injury suffered must
not have been due to any voluntary action or
contribution of the person injured.
Elements 2 and 3 were present in the case at bar.
However, the first element was undeniably
wanting.
TORTS: elements of medical negligence
The Prosecution failed to prove the existence of the
elements of reckless imprudence beyond
reasonable doubt. Gaid v. People, G.R. No. 171636
defined negligence as the failure to observe for the
protection of the interests of another person that
degree of care, precaution, and vigilance that the
circumstances justly demand, whereby such other
person suffers injury.
The following are the elements of medical
negligence: (1) the duty owed by the physician to
the patient, as created by the physician-patient
relationship, to act in accordance with the specific
norms or standards established by his profession;
(2) the breach of the duty by the physician failing
to act in accordance with the applicable standard of
care; (3) the causation, i.e., there must be a
reasonably close and causal connection between
the negligent act or omission and the resulting
injury; and (4) the damages suffered by the
patient.
Most medical malpractice cases are highly
technical, therefore, witnesses with special
medical qualifications must impart the knowledge
necessary to render a fair and just verdict. In the
case at bar, there were no witnesses with special
medical qualifications in anesthesia presented.
Hence, it is difficult to assess whether the first
three elements of medical negligence were
present.
Can you go lower than the diligence of
a good father of a family?
- Remember Art. 1173 that says
except as otherwise provided by
law or by stipulation of the
parties, the degree of diligence
is dependent on the nature of
obligation and corresponds with
the circumstances of the
persons, of the time and of the
place.
17
 - Article 1173. The fault or
negligence of the obligor
consists in the omission of that
diligence which is required by
the nature of the obligation and
corresponds with the
circumstances of the persons, of
the time and of the place. When
negligence shows bad faith, the
provisions of articles 1171 and
2201, paragraph 2, shall apply.
Can you for instance say, for this contract
parties are required to observe slight degree
of care?
- In the second paragraph of 1173,
it provides that the default
degree of diligence is that of a
good father of a family if law or
contract does not provide
otherwise. So precisely the
question is what if the contract
provides for a lower degree of
diligence, can that be done? Can
you as adults or probably a
seasoned business person agree
that for this transaction what we
will require for the parties to the
contract is only slight degree of
care?
Dean: Okay, so you have competing views on this
one. You wanna say no because public policy will
come in and say, even when parties are permitted
to stipulate to a lower degree of care than that of a
diligence of a good father of a family youll be left
with no protection because as it would appear that
is the minimum standard of care that you can
expect from a reasonable person. So you may
wanna consider policy implications when you allow
parties to do just that. You see, however, also
courts coming in and saying that if there is policy
implication that would negate the interest of the
public then this contract can nonetheless be set
aside.
Dean: You look at the cases, you wont find the SC
rule saying to you that you cannot go lower than
the standard of care than that of a good father of a
family. But remember what you learned from
obligations and contracts, as to waiver of rights
remember? It cannot simply be given effect if it will
contravene to public policy considerations.
Indicators that will guide a person if there is
negligence.
1. There is harm that can be avoided by precaution
2. The precautions have been set up in order to
prevent the negligence
- It is not enough that there is
harm and that there have been
precautions exercised because
what the law requires is that not
only that the act or omission
cause harm but also that the
harm is foreseeable because we
are looking at the view point of a
prudent man, so how can he
determine what a prudent man
would do if he cannot foresee the
harm that is caused by the act or
omission in the first place. So for
one not to be considered as
negligent, first is that there is
harm caused by the act or
omission, second is that the
harm is foreseeable, and third is
that he has exercised the
necessary precautions to avoid
the injury or harm.
Dean: Thats in the law and jurisprudence. So it is
not enough to say that there is harm. The
negligence will be there if first you can see the
harm and then you failed to take the necessary
precautions.
Defenses
1. As found in the law itself that where the
plaintiff cannot recover if it is his own
negligence that id the immediate and
proximate cause of the injury (Art.
2179).
Case of Fe Cayao-Lasam
- So this is the case that if your
negligence is the proximate
cause of the injury then there
can be no recovery. Such is the
importance in fact of proximate
cause. You look at Sanitary
Steam and you will find that it is
not even enough to establish
negligence, there has to be more
to negligence to be able to claim
for liability.
- Argument that the driver of
cimarron was negligent, because
there is a presumption that once
a driver at the time of the
mishap is violating a traffic rule
that such driver is negligent as
there was overloading and that
there were no lights installed.
- BUT, these didnt matter
because such negligence arising
from the presumption is not in
any way connected with the
accident.
- SC: even if the cimarron would
have two headlights as required
by law, he would still be bumped
by you because you have been
negligent and you did not apply
the brakes. Such negligence of
the cimarron is not the
proximate cause of the incident.
Case of Tison
- It is one thing that you establish
negligence but youve got to be
able to show causal connection
between that negligence and the
injury, such that even if you
were able to show negligence
but the negligence is not
reasonably connected with the
injury that resulted there still is
no liability. So, negligence is one
side of the same coin but the
other side is the proximate
cause. And to be able to be liable
the negligence must be shown to
be the proximate cause.
18
 Proximate cause is the cause, which,
in the natural and continuous
sequence, unbroken by any sufficient
intervening cause, produces the
injury without which the injury would
not have occurred.
- In criminal law our teacher very
easily explained the scenario of
proximate cause by telling us if
you ha A, B and C cars, B
bumping C because A bumped B
then the proximate cause of Cs
injury is A.
And from there you can probably glean that there
are several kinds of causes. Were told that theres
an immediate cause which may not necessarily be
your proximate cause. Theres an efficient
intervening cause which will then take away the
immediate cause being the proximate cause. And
theres the remote cause which isnt your
proximate cause.
Case of Bataclan
- The bus turning turtle happening
in the early hours in the morning
thats why the villagers who
wanted to help brought with
them torches. The thing is when
the bus turned turtle those 10 or
14 passengers were still alive,
but when the villager came to
help they torched the whole bus
resulting the death of the
persons who were at the time of
the rescue efforts were still alive.
But then the court said the
proximate cause is the
negligence of the driver.
- So it is possible for the
proximate cause not to be the
immediate cause.
PROBLEM:
Under contract with the City, the defendant
installed and maintained emergency fire
extinguishers in a highway tunnel. Several
maintenance periods were missed. On the day of
the event at issue, plaintiff was driving his vehicle
with due care through the tunnel when he was
struck by a speeding soybean truck that overtook
him and crashed into the rear of his car. The crash
ruptured the gasoline tank of the plaintiffs new
BMW and a small fire broke.
Grabbing the nearby fire extinguisher, plaintiff
attempted to put out the fire but could not because
of low pressure. Before help arrived, plaintiffs car
was consumed by flames. Plaintiff sued the
defendant for the value of the destroyed vehicle.
Q: What was the proximate cause, the speeding
soybean truck or the malfunctioning fire
extinguisher? Would there still be total destruction
of the car if it were not for the fire extinguisher
malfunctioning?
- The way this was actually
resolved by US court, they
approached this by asking the
question, is the injury such that
it would not have occurred were
it not for the act?
- They have then popularized
what is called the
BUT-FOR-TEST: would this
injury have resulted incident
were it not for the negligence of
the soybean truck? If your
answer is yes then thats your
proximate cause.
TN: do not just expend your resource in
having to establish negligence because
thats not enough, the other part of the
equation is to show that such negligence is
the proximate cause of the injury.
2. The other defense you can set up from
there is that my clients negligence is not
the proximate cause of the injury.
3. You go into the other defenses you can set
up and you can say that as a rule the one
who trespasses into the property of
another is the one who is negligent.
- Except, of course, in cases
where the trespasser is a child of
tender years. In the case of
young children, whenever they
ever venture in your property, it
is the assumption that you
placed something in there so
tempting as to be an implied
invitation to visit your premises.
Case of Taylor v. Manila Electric
- Youve got the court saying, your
son is no longer a young child if
he is so advance in intellect,
then he does not qualify as a
young child and he will be
treated as any regular
trespasser and therefore
presumed negligent.
4. The other defense you can set up is of
assumption of risk.
Case of Afiliada v. Hisole
- A case involving a carabao
caretaker. The caretaker was
gored to death by the very
carabao he was supposed to
take care of. His family filed a
case against the owner of the
carabao.
- The defense is that you assumed
the risk when you accepted the
job of being a carabao caretaker.
In the case the animal was in the
custody and control of the
caretaker who was paid for the
work. And then it was his duty to
prevent the animal from causing
injury or damage to everyone
including himself. And being
injured by the animal under the
circumstance is one of the risks
he took when he assumed the
job as caretaker.
Cirque du freak situation
- Can you say she assumed the
19
 risk? Youd probably wanna
explore, was there some
negligence in there e.g. faulty
maintenance of harness and
other equipment.
Exceptions to the Doctrine of assumption of
risk/ Where the Doctrine is inapplicable:
Case: Ilocos Norte case
- In Ilocos Norte, she owns a store
immediately after the typhoon
when water was still waist deep,
she went to her store because
she wanted to save the
merchandise and then live wire
was hanging and her last words
were Ay so case was filed and
the argument of Ilocos Norte
why would you even leave your
house immediately after the
typhoon when there are still
debris and live wires.
- But court said no, when
emergencies come to exist or if
you expose yourself to that
situation because you want to
save life or property this
doctrine of assumption of risk
will not find application. So
Ilocos Norte is your authority
that Doctrine of assumption of
risk will not be applicable and
you will be excused from the rule
if it is found that there has been
an emergency or are out there to
save lives or property.
bar question: does a gate crasher
assume the risk of being embarrassed
and humiliated in being asked to leave
in a party he just gate crashed? -
Nikko Hotel Manila Garden vs Reyes,
- Roberto Reyes aka Amay Bisaya
was just in the lobby in the hotel
and then he chanced upon Dr.
Philard and asked him to go to
the party because the latter got
at invite and that party was
strictly by invitation. When the
manager of hotel saw him, her
version was that Reyes was
asked to leave politely and then
he said he was with Dr. Philard,
but at that point, Dr. philard was
already ignoring him. So he said
he tried to explain that he got
invited by Dr. Philard, and Dr.
Philard was just at a hearing
distance completely ignoring
him adding to his shame and
humiliation.
- He said he was really humiliated
because this girl was yelling at
him asking him to leave at a very
loud voice, she was shouting
while we were very close we
were almost kissing. So the
court was asked where one
could ask for damages for a gate
crasher for the humiliation he
felt or is it part of the risk of gate
crashing?
- So the court said, sure that the
host of the party has a right to
choose who gets invited.
Remember Art. 19, that you
have a right but your right
should never be abused
otherwise you will be liable for
damages on the ground of abuse
of rights principle. Court said,
actually a gate crasher does
not assume the risk that he
will be humiliated because
there is a corresponding
obligation not to abuse your
rights. So I did not assume the
risk of being humiliated because
you do not after all have a right
to humiliate me.
- So, a gate crasher does not
assume the risk of being
humiliated in being asked to
leave. He was asking for millions
in damages but the court did not
award him that, because the
court disbelieved him when he
said he was put in humiliation by
the manager who allegedly was
shouting at him asking him to
leave because he said that they
were so close they were almost
kissing. Its therefore impossible
for her to still be shouting when
they were already so close to
each other.
5. Last clear chance
- The scenario is that you got two
acts of negligence, this is how
you will distinguish it from
contributory negligence. So in
both, you would always find 2
negligent acts, parties are
negligent, except that the
negligence of plaintiff is far
removed in time from the
negligence of the defendant
that your reckoning point for
the injury would have to be
that of the defendant.
- So the court would say that this
doctrine of last clear chance
would also refer to as having an
antecedent or prior
negligence before the
negligence of the other.
Case of Peoples Lumber and Echevara
vs Ramos.
- case for over speeding vehicle,
but at the time of the collision he
was already at the proper lane
- at the time of the time of the
collision you had the opportunity
to prevent it from happening
because never mind that the
other party is negligent, you had
the last opportunity to prevent
the situation from happening.
Youve got court saying it will be
doctrine of last clear chance if
the negligence of one did not at
all cause the injury or produce
injury so much so that you will
only reckon the negligence of
the defendant.
6. Doctrine of contributory negligence
- negligence thats concurring,
- Really not just semantics
because if you look at last clear
chance, you will not really
consider that negligence of the
plaintiff and in a sense that is his
defense and a complete one
because his negligence will not
20
 anymore be considered.
- But when you say
contributory negligence, the
kind of negligence
concurring at the same time
the contributory negligence
of the party will serve to
mitigate the liability. And that
therefore is to say that
contributory negligence is not a
complete defense, thats just a
partial defense because that
would still be taken against him
although in a mitigated sense.
- So the way to ask, is the
negligence of one so remote in
time from the negligence of the
other? If yes, it is doctrine of last
clear chance. But if the
negligence of one is not remote
in time from the negligence of
the other such that it concurs,
then you apply the contributory
negligence.
Article 2179. When the plaintiff's own
negligence was the immediate and
proximate cause of his injury, he cannot
recover damages. But if his negligence was
only contributory, the immediate and
proximate cause of the injury being the
defendant's lack of due care, the plaintiff
may recover damages, but the courts shall
mitigate the damages to be awarded.
In one pleading for instance you file a case
for negligence and the answer of the
defendant contains the defense that says:
that even if assuming that there may be
negligence, the negligence of the
defendant is but contributory to the harm.
The moment you admit contributory
negligence, youve got a battle that is
already half won because you are
admitting liability except that your saying
mitigate the damages that may be
awarded.
TN: So last clear chance if the negligence of
one is antecedent to the other but if
concurring, contributory negligence
Jarco Mrktg. Vs CA (whether you can use
the doctrine of contributory negligence
against the minor)
- Mother daughter shopping in
that mall and when the mother
was in the counter about to pay
she let go of the hands of her
daughter to get her credit card
and children being playful, she
placed herself on the countertop
and then it pinned her and she
eventually died
- Jarco had the defense that the
negligence was on the mother,
the proximate cause was the
mothers negligence because of
letting go of her childs hand.
- So if there is negligence, we ask
if there is harm foreseeable for
letting go of the hands of your
child so you can pay the
merchandise you bought. And in
one case decided by the court,
there was a procession, fell into
a boiling oil and parents were
faulted for not holding the hands
of their child as they were in
procession and the SC said its
normal for you to just walk. So
court said, you cannot blame the
mother for letting go the hand of
the child. Is there harm
foreseeable? So the other layer
of defense, was that let it be that
the child contributed to her
death because she placed
herself on the countertop.
Before the juvenile act, below 9
incapable of discernment, 9-12
disputable presumption of
discernment, and liability is that
you are exempt below 9 and
9-12 presumption that you can
refute. Court said we can apply
that by analogy in a case of
contributory negligence, you
have a child below 9 conclusively
presumed incapable of
contributory negligence. What
happens now with your law that
says 15 is now the age of
discernment? And you increase
the age of criminal responsibility
from 12-15. But thats how it is
based on a UN document saying
that the age of discernment
would be 15. Would that affect
now the ruling in Jarco? If you
look at the law, it says that it
would not have an impact on the
Civil Law provisions, so your
Jarco Marktg. Is still a good law
despite the passage of Juvenile
Delinquency Act.
7. Emergency Rule
case of Valenzuela,
- lady driving a car and having a
flat tire in a superhighway, and
you know, what a girl has got to
do having a flat tire? So syempre
ipa daplin. And when she was
trying to fix it, a drunk male
driver hit her
- argument was you shouldnt
have parked in the roadside as a
few distance later there was a
barangay road, and you should
have parked and fixed it there
and not on a busy road. And she
said huh, I didnt have time to
reflect na mas maayo pa diay ni
ari ko sa barangayan.
- And court said, in hindsight,
there would have been a better
way to solve the situation that
you found yourself in, there
would still be no presumption of
negligence if and only if however
you did not cause the
emergency situation from
happening.
8. Prescription
- Quasi-delict has to be set up 4
years from the moment the
cause of action accrues
otherwise it is barred.
- In maritime collisions, right now,
they will do nothing, not inspect,
not enforce and then the ship
sinks and a lot of people will die
21
 and then theres this maritime
authority investigation. Do you
wait for the board of inquiry to
finish its investigation before
filing a case? No, because your 4
years will run from the time of
the occurrence of the cause, the
time that the negligent act
happened.
Persons that may be held possibly
liable in a case of negligence and in
action for quasi-delict
- Of course, the one who
committed that tortious act.
What if there are several
torfeasors?
- Article 2176. Whoever by act
or omission causes damage to
another, there being fault or
negligence, is obliged to pay for
the damage done. Such fault or
negligence, if there is no
pre-existing contractual relation
between the parties, is called a
quasi-delict and is governed by
the provisions of this Chapter. If
they are several, their liability is
solidary.
- Say there are 5 tortfeasors
slapped by the court with
damages in the sum of 50k, how
will that go? Obligation and
Contracts class, if there are 5
persons held solidarily liable, we
know that we can go after
1,2,3,4,5 at 10k each or I can go
after anyone of them for the
entire amount but one paying
will have to get the share of the
others. Each of the tortfeasors
will be liable for their share, each
bears his own burden.
TN: You do not limit liablity to the
tortfeasor even if you did not do the act or
omission causing damage to another, you
can still be held liable under what is known
as the doctrine of vicarious liability. The
scenario is that the obligation imposed by
Article 2176, that obligation you find in
there is also demandable not only for your
own act or omission but also for the act or
omission of persons for whom you are
responsible.
Keep in mind that there are two persons:
the one who committed the act or omission
causing damage to another, and the one
who has this person under this care and
supervision. This other person has not
committed an act causing damage to
another, the one who caused the damage
is the other one.
Article 2180. The obligation imposed by
article 2176 is demandable not only for
one's own acts or omissions, but also for
those of persons for whom one is
responsible.
- Is this some kind of aberration
from the fundamental
philosophy that the basis, the
bedrock foundation of our
liability in our Civil law, Criminal
law is always you get punished
only for your own act or
omission? Are we making him
liable for this other persons act
or omission? If we are, are we
therefore setting an exception to
the rule that you can only be
held liable for your own acts or
omission? -- NO
Doctrine of Imputed Negligence.
- This person who has this person
under his care or supervision has
really committed an actionable
act or omission, he is also
negligent, except that his
negligence is imputed to him by
the act or omission of the person
under his care and supervision.
If this person is under your
care and supervision, and he
committed an act or
omission causing damage to
another, then you must have
been remiss as well in doing
some supervision and it is
that failure to properly
supervise that will be made
the basis for your liability.
- So this is not an exception to the
principle that you can only be
held liable for your own act or
omission. The doctrine of
vicarious liability proceeds from
the act of a person being held
vicariously liable of and the
negligence springs from the fact
that you have someone under
your care and supervision and
this someone whose act or
omission causing damage to
another if you properly
supervised him, he would not
have committed such act or
omission. The moral
responsibility consists in
having failed to exercise due
care in the control of
somebody who is under your
care and supervision.
- Thus: Basis is your own
negligence. But this negligence
is presumed under the fact that
the person under your control
and supervision has committed
an act or omission causing
damage to another.
Cerizo vs. Tuazon
- if its the application of the
doctrine of vicarious liability,
you need not even implead the
very person who committed the
act or omission.
- Among the persons held
vicariously liable are parents.
Because what is made as basis
for the liability is the act of that
parent in failing to supervise the
minor child, it is the parents
negligence that is the basis. The
one injured can file a case
directly against the parent
22
 without impleading the child
who caused injury to another or
against parent in child.
- This case involves an employer
who has a husband who is a
lawyer, the lawyer husband
represented the wife defendant,
and he said youre not even
impleading the driver. So he said,
the driver should have been
impleaded because it is his act or
omission that caused damage to
you before you can hold the
employer liable.
- The court said no, vicarious
liability is direct and primary.
- When it says primary, thats
trying to contrast from what
youve learned in criminal law,
that if the employee is found
guilty of a crime and made civilly
liable and he is insolvent, then
you can go after the employer
assuming that the conditions are
met such that he committed the
crime in the course of the
performance of the duty, and the
employer is engaged in some
kind of business or industry. The
employee is insolvent and there
is a judgment of conviction with
civil liability imposed. Thats a
situation where you hold an
employer liable but only
subsidiarily
- But court said when you say
vicarious liability under Art 2180
liability of employer is primary.
IOW, you dont need a finding of
liability on the part of the person
who is under your care and
supervision before you can hold
the person vicariously liable,
liable. The liability is primary
and so you can go after him
directly. So you may proceed
against the person vicariously
liable singly or it maybe a
joinder of parties and you may
include as well the person who
caused damage to another.
Thus: the basis of the liability of the person
being held vicariously liable is his own
negligence, albeit imputed negligence, in
failing to properly supervise the person
who caused damage to another because
had he not been negligent, the act or
omission causing damage to another
would not have happened.
Take note of the law that says any act or
omission so it could be an intentional,
willful malicious act or omission of that
person, not only negligent act.
Now, we go to the stage where we will be
discussing who can be held liable in an action
for quasi delict.
Who can be held liable?
First, we discussed last time its the tortfeasor and
that if there are several tortfeasors liability will be
solidary, but then there is another kind of or set
people liable, and these are under the doctrine
of vicarious liability.
- Our civil law is founded under
the philosophical foundation that
you can only be held liable for
your own act or omission,
- in Art. 2180, the statement, that
whoever who has somebody
under his care or supervision can
also be held liable by the act or
omission of that person under
his care, that causes damage to
another
- We have to say that, that should
not be the basis as we will be
inconsistent, with this
philosophy that you can only be
held liable for your own act or
omission. So we say we trace
therefor this liability upon
his own negligence except
that his own negligence
flows from the fact that the
person under his care, was
able to do an act or omission
causing damage to another.
We ask ourselves the
question, if he had not been
negligent, this person
couldnt have committed and
act or omission causing
damage to another.
So what is the foundation of this
doctrine of Vicarious liability?
- The very negligence of the
person who is charged with care
and supervision. Precisely why
the courts said, The doctrine of
Vicarious liability is really
premised on negligence, except
when you notice the court will
sometimes say imputed
negligence because negligence
is really imputed from the fact
that the person under you, was
able to do an act or omission
causing damage to another but
it is premised on your own
negligence, the negligence of
the person held vicariously
liable.
- Thats why the court said
vicarious liability is there for a
direct liability because it is his
liability based on his own
negligence that flows or is
imputed from the fact that, that
person under his care was able
to do an act or omission causing
damage to another.
in one case decided by the court, the court
is asked to deal with question of, what if
you dont implead the person, who
committed act or omission causing
damage to another you simply implead a
person who has the care and supervision
of him, do we dismiss the care for
non-joinder of dispensable party? Do we
dismiss the care or hold it in abeyance until
after the necessary party is joined in the
case?
- The court said the liability
23
 under vicarious liability is
direct, we are talking of his
own liability as the basis of
the action, you may or may
not implead the person who
commited the act or
omission who caused the
damage to another.
- And then the court also said its
primary, which means that
you can directly resort to
that person without having
to first hold liable the one
who committed the act or
omission causing damage to
another (Direct and Primary
Liability)
So the scenario would be,
assume that that person is
the one who committed
the act or omission
causing damage to
another and you want to
bring him to court, and
you have a case now in
court. So you can file a
case bringing in that
person who did the act or
omission causing damage
to another or you can also
implead the person who
has him under his care or
supervision. He need not
even be there, because
when we say the basis of
his liability is Vicarious
liability, is a direct liability
on his part, thats a
primary liability on his part,
you dont even have to go
after the one who
committed the act or
omission before you can
implead the person to be
held vicariously liable.
sets of persons to be held Vicariously
Liable
1. You hold both parents vicariously
liable (unlike before under the civil code
where you first go after the father and only
in case of death or incapacity of the father
may the mother come in.)
- But for what liability?It is for a.)
Act or omission of minor
children, b.)Living in their
company,
- The one who committed the act
or omission must be a minor and
then not just a minor, the minor
must live in the company of the
parents.
- The term minor here in Art. 2180,
is to mean a person below 21,
our legal basis is the very law,
lowering the legal age of 21 to
18, because that law says
nothing in this law shall
derogated upon the
responsibility of parents and of
guardians, under article 2180
par. 2 and 3. So from there we
say minor to mean below 21 and
who must live in the company of
their parents.
- You cannot forget that the law
qualifies, its not enough that
youre a minor you must live in
the company of parents, I think
that the reason for that is
justification for holding parents
liable for acts of their children is
because theyre supposed to
exercise supervision over
their minor children, so you
must live in their company,
so as to afford your parents
the opportunity to supervise,
otherwise why would you
hold them liable, minor living
in the company of parents.
*TN: Tolentino writes that this holding of parents
liable for acts of minor children living in their
company, minor being below 21, really lacks
foundation because, weve mentioned last time
that one of the effects of reaching the age or
majority is emancipation from parental authority
and theoretically when you reach 18, youre
emancipated from parental authority, yet the law
says non the less the responsibility of parents will
be up until the child reaches the age of 21, so you
have from 18 to below 21 a scenario where you
dont have anymore any parental authority, yet
you are still being held vicariously liable, you may
disagree with the philosophy behind it pero thats
the law and the law says you hold parents
vicariously liable for acts or omissions of minor
children living in their company for as long as
minority.
What about the case of adopted
children?
- If you go by the rationale why
you hold parents liable, it seems
that the point is the ability to
supervise and if the ability to
supervise is the reckoning point,
we ask the question who you
hold liable, for acts or omission
of a person sought to be adopted,
of a minor sought to be adopted.
- And the supreme court did not
deal with who was the biological
parents, who was already the
adopting parents but only
asked itself the question of
who had the actual custody
of the time of the incident
and thats who we hold liable,
you hold him liable not
because of blood is thicker
than water or you ask to
adopt him anyway, you hold
him liable because he has the
actual custody. Same thing
with guardians
Bar Question:
You have a 16 year old, who was issued a student
permit, who drove a car, which was a gift of his
parents, to school, and then when he was
scheduled to go on field trip, the teacher requested
him to accommodate some of the classmates. He
did not drive the car well, and some died, other
badly injured. So who is liable for the negligent act
of Rozano that bought about the death of his
classmates and the injuries suffered by his
classmates?
- Its rather simple. Among the
persons you would hold liable is
or would be the parents, and
24
 then is says under the same set
of facts, except that the date of
the occurrence would be in
mid-94. What would your
answer be?
- He would be 21, taking out the
parents from the equation and
hold only the teacher liable.
2. Employers
- What will bring forth vicarious
liability of employer if there is
damage caused to another
person by the employee, acting
within scope of assigned task, on
the occasion to the function
depending on the kind of
employer involved, engaged in
business or not engaged in
business, from the way it was
worded by the law, it seems that,
regardless of the nature the act
of the employee, whether
intentional or unintentional, that
is to say negligent act or
intentional act will cause
damage to another, while the
employee was on the occasion of
the function, or in the
performance of assigned task,
the employer will be vicariously
liable. It is not enough to look at
the liability of the employers
looking through it by the lens of
vicarious liability under the civil
code, you need to recall what
you have learned in criminal law
about subsidiary liability of
employers and then recall also
what you have learned in
transportation laws about
liability of employers by the
negligent act of the common
carrier, we shall discuss all three.
- It simply means that at the time
he committed the act,
maliciously or through
negligence, he was doing the
task given to him.
- But first, look at vicarious
liability of employers under the
civil code, thats what you find
under paragraphs 4 and 5.
- Paragraph 4 would have to deal
with an employer who has a
business, enterprise
- Paragraph 5 is an employer not
engaged with business or
enterprise.
- Can you be an employer without
having any business or
enterprise? Yes, youd probably
have your driver. Both therefor
are covered you need not be
engaged therefor of business, if
you are, then you look at
paragraph 4, if youre not but
youre still an employer you look
at paragraph 5.
Why do we have to segregate?
- Because the basis of liability
appears to be different,
- It would seem that if you are an
employer with business or
engaged with business or
enterprise you will be held liable
for acts of your employees in the
service of the branches or on the
occasion of their function.
(Paragraph 4)
- But if youre an employer not
engaged in business, youll be
held liable for acts of your
employees, if they act within the
scope of their assigned tasks.
(Paragraph 5)
- The difference is really just
semantics. If you want to be
precise, what kind of employer
are we dealing with? Are we
dealing with an employer
engaged in business? So your
test of liability will be the
employee there acting in the
service of the branches or
occasion of their function. But if
you are dealing with an
employer not engaged in
business, your test of liability
will be, was the employee at the
time of the commission acting
within the scope of the assigned
task.
- Defense: Due diligence in the
selection and supervision of the
employees
- To prove due diligence in
selection, Employer will require
Employee to submit certain
clearances (NBI) and before
Employee was hired he was duly
interviewed, there are tests
conducted. As a general
framework you will look at his
qualifications and experience,
then you will look at his records
(NBI,Police, Brgy.)
- Lets say you interviewed and
this applicant said wala jud ko
kaila anang crime or I havent
faced any case in court at all in
any point in my life. Convinced
of his statement, you hired him.
Is that due diligence in selection?
-- That is not enough, there
must be concrete documents
evidencing that such statements.
Oral testimony is self-serving
and if unsubstantiated, it is not
enough for the Employerr to
establish due diligence. It
requires documents to
corroborate its oral testimony
- You could establish Supervision
in the performance of duties, for
example you have to require the
Employee to attend seminars in
order to be acquainted with their
duties and responsibilities. First
you have to establish the rules
and regulations of your company,
in fact that is the reason why
25
 companies are required to make
a manual, it is not a mere
surplus age. Its a legal
protection, proof of due
diligence in supervision. Next,
such regulation must be
implemented by any
documentation (not made by the
company itself for it would be
self-serving or gratuitous
statement)
- Next, certain penalties must be
implemented. (Theory of
Compassionate Justice or
Principle of Discretionary Justice
- this is a principle in labor where
a penalty less severe will suffice
then that is the one that should
be imposed). You can issue out
memo, its how you build up
evidence in due diligence in
supervision such that you
impose sanctions for violations
of your rules and regulations and
you prove that you imposed
sanctions thru memorandums
issued. So one advise that you
can give your clients is not just
to come up with the rules and
regulations within the workplace
but also to document the
instances where you called the
attention of the employee who
did not comply with the rules
and regulations thru various
memoranda. You might want
them to attend seminars that
will improve performance of
their work.
- In so far as employers vicarious
liability is concerned, the term
you have to be very familiar with
is acting within the scope of
assigned tasks or on the
occasion of their function.
Castilex Case:
- in transportation laws, it is
always the registered owner,
here, you have an employee who
was issued a company vehicle,
he uses hat vehicle in going to
and from his place of work, in
going to his home, in coming to
his work place and going to
some other places, as to this
case, when it was already late in
the evening.
- The movement of the vehicles
there in fuente is counter
clockwise, thats supposed to be
the flow but this poor fellow
riding in motorcycle did a
clockwise, so you can expect
what an possible happen in that
case, the thing is if you are also
for the plaintiff, youd want to
hold liable the one who has the
capacity to pay, none of this
would have been relevant if the
employee you are suing could
satisfy the obligation but the
reality of the moment if you file a
case against the employee and
almost always you can be
assured, that the judgment you
obtain after 10-15 years of
litigation will not be satisfied by
him and so youd want to go
after the employer
- Issue: when an employee uses a
company issued vehicle, can it
be said that he was acting in the
scope of assigned task or he was
doing occasion of his function so
that you can hold the employer
vicariously liable.
- The court settled the issue by
applying this principle you learn
in your labor standards
- The Court actually said that: to
make it, acting within the
scope of assigned tasks/
acting on the occasion of
function, the employer must
have derived benefit in
having used the vehicle,
because if thats for your
benefit, how can that be
acting on the occasion of
your function.
- The court said when you use the
company issued vehicle to your
work place, whose benefit are
we talking about? In fact when
you used company issued
vehicle when to your workplace,
thats for your benefit. So if
something happens and your
use that company issued vehicle
in going to your workplace, are
you acting on the occasion of
your function? If you use
company issued vehicle, in
taking your meals outside the
work place, thats not acting on
the occasion of your function.
- The court here dealt with two
scenarios, using company issued
vehicles in taking your meals,
and going to or from work, and
in both you have court dealing
with, special business benefit
rule, it can only be said that
when you are acting on the
occasion of your function,
whatever that you do, you
hold the employer liable as
well, if there was some
special business benefit to
the employer with the use of
the company issued vehicle
and the court said that theres
no special business benefit to
the employer in just being able
to get to your workplace on time,
and if that is there for the case,
you do not satisfy the
requirement of acting on the
occasion of your function, or
acting within scope of your
assigned task, you do not hold
employer liable for act or
omission made by the employee,
precisely why court absolved
Castilex.
Another basis of the employers liability
under the Revised Penal Code. It is where,
the employer is to be held subsidiarily
liable for the acts of their employees
causing damage to another while in the
26
 discharge of their duties
Art. 103. Subsidiary civil liability of other
persons. The subsidiary liability
established in the next preceding article
shall also apply to employers, teachers,
persons, and corporations engaged in any
kind of industry for felonies committed by
their servants, pupils, workmen,
apprentices, or employees in the discharge
of their duties.
o What will trigger the liability of
employer?
- If all the requisites are present
and these are:
1. If there is an employer-employee
relationship
2. There is a conviction of employee that
carries civil liability
3. Employee committed the act during the
performance of the function
4. Employee is insolvent
5. Engaged in some kind of an industry
How do you bring the
employer into the
picture?
- Note that, if this liability is
based on the Civil Code, you
only have to file a civil case
because liability is direct and
primary
- So the scenario you have here is
employee committed a crime in
the discharge of his duties, and
so a criminal case was filed
against him. People vs Employee,
you will notice at in this whole
process, the whole time you
dont have the employer in the
picture, from start to finish, its
just a case between private
complainant and employee
accused, except that after trial
the court found out that
employee criminally liable and
you knew, one that is criminally
liable shall also be held civilly
liable, so in the judgment of
conviction of the employee,
there was criminal liability and
then the court made a automatic, but thats not so
pronouncement on the civil
aspect of the case.
- Rule 39 - writ of execution,
enforced by the court sheriff, so
theres a writ of execution, he
goes to the accused, first thing is
to make demand for cash
payment, and when all else fails
sheriff is duty bound to look for
properties, if he wont find
properties, he will make a return,
document that embodies the
report of the officer, Writ of
execution is returned unsatisfied
because theres nothing to levy
upon.
Now, under Art. 103 of RPC - how do you
enforce the civil liability of the accused
against the employer?
- In a case decided by the court,
private complainant who would
now be called judgment creditor,
filed a motion to satisfy
judgment. And the objection
was anchored on due process,
employer was saying, I wasnt
given opportunity to participate
during the trial of the case
against my employee.
- Thus, you can enforce liability to
the employer through a motion,
one fundamental thing you
cannot forget about motions is
notice of hearing. Motion filed
without a notice of hearing is a
mere scrap of paper. It will have
to be furnished to the employer
and in that motion you will
indicate all the elements that will
satisfy 103
- Because there will be hearing,
thats opportunity of the
employer to refute all the
elements that you have alleged,
he can for instance say, Im not
the employer, which can be
evidence by payroll, or not
engaged in an industry or put up
defenses.
- Employer can:
1. Er can refute the allegation
that there exists an Er-Ee
relationship (by using the 4 fold
test with the 2 tiered test.)
2. Er is not engaged in any kind
of industry
3. Ee committed the act outside
the scope of his function
4. Ee is not insolvent
- So, if you were not able to refute
the elements, the court will hold
you liable, and thats not denial
of due process because you were
given opportunity to be heard,
during the hearing of the motion.
The court said, while this is
subsidiary, because employer
comes into the picture only after
the rendition of judgment and
the finding that the employee is
insolvent, you go after the
employee first. It maybe
subsidiary, the liability is also
say there are not defenses,
your defenses would have to
be the elements, but if the
elements are really present
and you cannot refute them
then employer is liable.
The other basis of liability is when the
Employer is a common carrier, and the
Employee caused damage and injury to 3rd
persons in the performance of his
functions
- Here, the Employer cant say Im
not liable because all sorts of
seminars have been attended to
by my Employee and I have
required him all sorts of
clearances before I hired him
- NOTE: He can only raise the
defense of extra ordinary
diligence.
- It really is the case that you have
a company that imposes strict
measures in order to ensure
27
 extra ordinary diligence except
that this driver did not perform
his function, in fact disobeyed
expressly the mandate of the
company such that because he
was over speeding the bus met
an accident. Do you still hold the
employer liable for it? Those are
already extra ordinary diligence
of coming up with a policy in
determining what is the accurate
speed from point A to point B. In
other words if the employee
acted beyond the scope of his
function, can it be a defense that
the employer or the common
carrier can raise?Still, No. (as
the only defense is extra
ordinary diligence)
- So even if the employee defied
the orders of the employer the
employer is still liable, precisely
because his only defense is extra
ordinary diligence.
Things to remember in vicarious liability
under the civil code art. 2180
1. Its a direct and primary liability (you can
directly file a case against the employer without
even impleading the employee.)
2. It does not require prior recourse/ prior criminal
case
3. Defense - diligence of a good father of the family
- if the employer is able to prove 2 things, due
diligence in selection and due diligence in the
supervision.
Liability of the employer under the RPC art.
103
1. It is subsidiary, you dont go directly against the
employer but it is automatic upon the showing that
the elements are present, there are no other
available defense. Thus, you go against the
employee first and when all the elements are
present you go after the employer then the liability
of the employer becomes automatic. The employer
becomes ipso facto liable upon conviction and
proof of insolvency. You only have to establish that
not all the elements are present. Conversely, the
presence of all the elements brings about the
automatic liability of the employer.
2. It requires a prior recourse or a prior criminal
case
DEFENSES:
Vicarious Liablity under 2180 Art. 103 RPC
1. not insolvent
1. Due diligence in the selection and
supervision of employee 2. no
relationship
3. not engaged is some kind of
industry
4. acted beyond the scope of his
task
Bar Question:
2015 - 7%
Heres a drive of a bus owned by Z who run over a
boy who died instantly. A criminal case for reckless
imprudence resulting to homicide was filed against
the driver and was convicted and asked to pay 2
million as actual and moral damages. Without even
trying to find out if the driver has assets or means
to pay the awarded damages the parents filed a
civil action against the bus company to make it
directly liable to damages.
A. Will this prosper? Whats the cause of action
against the bus company by the parents of the
boy?
Yes. They must file a civil case against the
company and the cause of action is founded on
2180.
B. If the parents of the boy do not file a separate
civil case against the bus company can they still
make the bus company liable?
Yes. Under Art. 103 of RPC employers subsidiary
liability.
2013 - 8%
PhilAsia air flight 916 crash landed in Cagayan de
Oro because of pilots miscalculation of the planes
approach. The plane undershot the runway. 50
people on board 10 passengers died. Of the 10 one
was a passenger who managed to leave the plane
but an ambulance coming to the rescue run over
him.
What are the causes of action against the airline
and the pilots?
How will you handle the case of the passenger who
was hit by the ambulance and the airline employee
who simply hitched a free ride to Cagayan de Oro?
2009 - 9%
Continental Transit Corp. figured a collision with
Universal Tansport. Among those injured inside
Continental were Romeo a stowaway, Samuel a
pickpocket, Teresita the bus drivers mistress who
usually accompany the bus driver for free, and
Uriel holder of a free ride pass she won in a raffle
held by Continental.
Will there be a case for breach of contract of
carriage against Continental by the stowaway,
mistress and free riding passenger? If yes, do they
have a cause of action against Universal? Yes,
Quasi-delict.
What valid defenses maybe raised by Continental
and Universal?
Whats the best way of holding an
employer liable? Do we do
Liability on Common Carriers
1. Extra-ordinary Diligence ONLY
employer-employee
quasi-delict 2180 or 103 RPC? What
are the benefits of doing 2180 vs 103
RPC? Diba mka defend cya noh? Due
Diligence. However at the back of your
mind youd say, how many employers keep
record anyway? Mg lisud jud na cyag ug
due diligence plang daan sa selection.
Gawas Kung ikaw ang lawyer sa company
kay youd insist in keeping records due to
prove diligence in supervision.
Would it be possible that they wouldnt be
28
 able to prove due diligence in selection and
supervision. But there is a defense. But
you might want to try 103. Because theres
no defense if the 4 elements are present.
One student of mine, when I asked same
question said that the benefit of 103 is that
you lull the employer into believing in
some security, because he might not even
know that theres a case against employee,
so he might not help in setting up the
defense.
BAR QUESTIONS:
Liability of hotels for items left by guests for
safekeeping. There was a provision in the
establishment the statement that we are not
liable for loss of items left by guests
- In the case of YHT vs CA, it says that the
waiver is void. Any waiver of
liability void because hotel
business is a business like a
common carrier business imbued
with public interest. So the law
will not allow the duty to the
public to be negated or diluted by
contrary stipulations.
In case employer is held vicariously
liable and so he is the one paying the
person who suffered damage who was
injured by his employee while acting
within the scope of his assigned task
or in the occasion of his function,
recourse of the employer is that, in
2181, kay pildi naman jud mkabayad
naman jud si employer, whatever it is that
you have paid under vicarious liability, you
can recover from the employee So youd
file another case against the employee to
enforce the obligation? Theres such a
thing as victory but an empty one. So that
one really is an empty provision. Pero may
nlang naa kay ikatubag sa nag lagot na
client (employer) nimo.
Art 2184. in a case of an employer who is
in the vehicle at the time of the incident,
when the employer the owner of the
vehicle, inside the vehicle at the time of
the incident, when he is in the vehicle and
he could have by the use of due diligence,
prevent the circumstance from happening,
but he did not. You will be solidarily liable
with the driver for what has happened.
o So if the damage is 1.2M, what
would be your liability there?
So the one injured can go after
either you or the driver for the
1.2M. So employer may
recover only half or 600K from
the driver.
If the employer paid under 2180,
vicarious liability, the recourse of the
employer is to go after the employee
and recover what he has paid. -- Art.
2181. Whoever pays for the damage
caused by his dependents or
employees may recover from the
latter what he has paid or delivered in
satisfaction of the claim.
o So if theres a judgment
against the employer for
1.2M, how much can the
employer ask from the
employee? 1.2M. So, what
you have paid, you can
recover.
o And if the owner was not in the
vehicle, it will be 2180 that will
apply, ergo, if you paid 1.2M,
you get 1.2M, cause you were
not there.
2009 Bar exam
Romels private car while being driven by a
regular family driver, Amado hits a
pedestrian causing the latters death. Romel
is not in the car, is he liable to the heirs?
- Yes, under 2180 or 103 if you like. But
dont complicate kay Civil Law
man ni cya so, 2180
Would your answer be the same if Romel was
in the car?
- Still liable but solidarily.
- But in letter A, with remedy to get back
what he has paid under 2181,
but in letter B, solidarily liable
with the driver under 2184.
3. State
-The thing about state is that, thats what you
find in 2180, the provision that the state is
responsible if it acts through a special
agent, and these are those people given
specific or fixed assignment, that are
consistent with the normal responsibility of
a duly appointed officer.
Meritt Case
-Where the ambulance driver was not
considered a special agent
- he is not considered as special agent because
in that case, his being an ambulance driver
was his regular function
D: before the state can be sued it must have
consent, implied or expressed by law, implied
when it initiated a suit or when it engages in a
contract. I am saying that suability and liability is a
different thing that provision is for liability only, in
order for the state to be liable it must be acting
through a special agent
It will fall within the express consent of the state,
being an act of congress saying that the state will
be liable in instances where there is damage
caused by a special agent, so it fits within the
express consent of the state.
the banner legal framework is that you cant sue
the state, we try to justify that by saying what?
Two things, if you want to be philosophical about it
you will say, well the state is the source of law, and
how can you have a right, against the source of the
law, upon which your right to sue depends. And
you tried also to do the practical track by saying
what do you think will happen if the state can be
sued, it says that you sue the state you divert the
attention of the state from more pressing matters,
supposedly you have a state what is very busy
rendering public service and you can bother it with
too many suits, so on two grounds your can sue the
state unless the state consents.
D: when is a case a case against the state? If even
if there be a case, its not necessarily a case
against the state, not all suits are suits against the
state, so when is a suit a suit against the state?
Say for instance you file a suit against the state by
its name, typical example is you use the teachers
family name, largo vs republic, thats suing the
state by its name, and sure that maybe an
indication that its a suit against the state, except
that not always, even if you sue the state by its
name, it may happen that its still not a suit against
29
the state, when is a suit not really a suit against the
state even if the state be sued by its name?
-Theres this very graphic case about this one
of somebody asking for payment of
pension, going all the way to the Supreme
Court to ask for 50 pesos, and court said,
look here is somebody who is entitled to 50
pesos and he is asking the state to give it
to him, is that a suit against the state? In
this case it wasnt anymore a suit
against the state, because it was
determined that the amount had
already been allocated so in the end
the court said it is a case against the
state if you will be asking the state to
do some positive act, what can be an
example of a positive act, release of
funds or release of property, for
example you file a case against the
state to get back a property, thats
asking the state to do a positive act
and its a suit against the state
-so while you file a case against the state and
sue by its name that maybe an indication
that its a suit against the state if in the end
the state will not be doing anything either
release of funds or release of property
because for instance the funds have
already been allocated and thats not suit
against the state, so it will be suit against
the state if the state will be asked to do a
positive act.
Its rather unusual to somebody who has
studied this fundamental concept of
non-suability of state to file a case against
the state and sue it by its name, you
almost always camouflage it by filing a
case not against the state by its name, not
against the republic but for instance filing a
case against a government agency, so this
will not look like largo versus republic what
this will look like is largo versus
government agency, and you youd be
facing the question of when is a case
against a government agency a case
against the state. Even if it is titled a
case against government agency, in reality
its a case against the state when?
D: When its a government agency that is
involved, you first determine the character of
the agency whether incorporated or
unincorporated.
-If it is incorporated, it will have a juridical
personality on its own and therefore not a
suit against the state whether or not it is
performing a governmental or proprietary
function. The discussion of whether it is
performing governmental or
non-governmental function will go into the
discussion of liability. But for suability the
charter vests it the capacity to sue and be
sued. So if it is Incorporated, dont do
function test. It is suable because the suit
against it is not suit against the State since
it has personality of its own.
-But if it is Unincorporated, it has no
personality on its own but a part and parcel
of the governmental machinery. Ex. DOJ
and DOH. Because it has no personality of
its own, the case that you will file is a case
against the State.
D: Its possible that you will also file a case
against persons and not involve the Republic
by its name or the Agency. If you go by the
framework, its a suit against the state if you
will be making it perform a positive act as
when it will be the one who will comply with
the decision. Then the case you will file
against a person will only be a case against
the state if you will be suing the government
official in its official capacity and there was no
allusion of any malice, bad faith, corruption.
Because if there is then thats his personal
obligation, you wont be making the State
perform some positive act to satisfy the
obligation.
If the suit is against the State, this is where
consent has to come in.
Bar Question: If its a suit against the State
and there is no consent, the judge by himself
can suas ponte, can dismiss the case right
away. For the judge not to dismiss the case,
he must find some consent of the state to be
sued.
There are only 2 ways of expressing consent:
1. Express if there is a law (declaration by
the president nor a waiver of the Solicitor
General will not suffice)
- Legislation can be of 2 kinds
A. General Consent to be sued
o Money claims arising from
contracts express or implied, if
you have a money claim
against the govt., there is
already a general which says
that the money claim you
lodge against COA and if COA
does not pay then you can
directly file a case after the
lapse of 60 days.
B. Special or Specific Consent
to be Sued
o Ex. Merritt case no special
agent, he asked a member of
the Congress to pass a law
granting him authority to sue
the government
2. Implied
o Such as when the government
expropriates a property,
Consti says that private
property can only be taken if
there is just compensation
which can only be determined
by Court so impliedly when the
govt. expropriates there is an
understanding that there will
be a court case if only to
determine just compensation
o when the govt files a case, it
opens itself from
counterclaims
Bar Question:
1. In the last quarter of 2012, about
5,000 container vans of imported
goods intended for the Christmas
Season were seized by agents of the
Bureau of Customs. The imported
goods were released only on January
10,2013. A group of importers got
together and filed an action for
damages before the Regional Trial
30
 Court of Manila against the
Department of Finance and the Bureau
of Customs.
The Bureau of Customs raised the
defense of immunity from suit and,
alternatively, that liability should lie with
XYZ Corp. which the Bureau had
contracted for the lease of ten (10) high
powered van cranes but delivered only
five (5) of these cranes , thus causing the
delay in its cargo-handling operations. It
appears that the Bureau, despite demand,
did not pay XYZ Corp. the Php 1.0 Million
deposit and advance rental required
under their contract.
A. Will the action by the group of
importers prosper? (5%)
B. Can XYZ Corp. sue the Bureau of
Customs to collect rentals for the
delivered cranes? (5%)
2013 BAR EXAM (MCQ)
2. Singco sued the government for
damages, after trial court ruled in his
favor and awarded damages
amounting 50M. To satisfy the
judgment against the government
which option is valid for Mr. Singco
A. Garnish the government funds (D:
specific purpose, in fact you divert
it to other public purpose it is
already technical malversation)
B. File a claim with COA pursuant to
Commonwealth Act 327 (D: you
do COA if its a money claim arising
from contract, this is money claim
arising from judgment)
C. Make representation to
Congress to appropriate the
amount to satisfy the
judgment
D. File a petition for mandamus in
court to compel Congress to
appropriate (D: you cannot
compel the govt to exercise a
discretionary power which is
legislative power)
E.Proceed to execute the judgment as
provided for by the Rules of Court
because the state anyway allowed
itself to be sued. (D: Consent to be
sued is not consent to be liable,
consent to be sued is good only up
to the proceedings prior to the
execution.)
4. LGUs, Municipalities, Cities
Art. 2189. Provinces, cities and
municipalities shall be liable for
damages for the death of, or injuries
suffered by, any person by reason of
the defective condition of roads,
streets, bridges, public buildings, and
other public works under their
control and supervision. (n)
- LGU need not even own the road, street,
bridges, etc. for it to be liable
- Under Art 2189 of the Civil Code, it is not
necessary for the liability therein
established to attach, that the
defective public works belong to the
province, city or municipality from
which responsibility is exacted. What
said article requires is that the
province, city or municipality has
either control or supervision over the
public building in question. (Jimenez v.
City of Manila)
5. Teachers
- If something happens to the student
during Sinulog is the NSTP teacher
liable?
- There are two laws that govern this one,
2180 Civil Code and 218 Family Code.
Art. 2180, Civil Code
Xxx
Lastly, teachers or heads of
establishments of arts and trades
shall be liable for damages caused
by their pupils and students or
apprentices, so long as they
remain in their custody.
Art. 218, Family Code
Art. 218. The school, its
administrators and teachers, or the
individual, entity or institution engaged
in child are shall have special parental
authority and responsibility over the
minor child while under their supervision,
instruction or custody.
Authority and responsibility shall apply to
all authorized activities whether inside or
outside the premises of the school, entity
or institution. (349a)
-In 2180, the first word thats important is the
word by. It says there that teachers shall
be liable for damages caused by their
pupils or students. Its not to. It doesnt
say that teachers shall be liable for
damages caused to their pupils or
students.
-So you now have the scenario where NSTP
students making a human barricade and
something happens to that student
because a passerby punched this student.
Is the NSTP teacher liable?
The relevant question is who caused that
damage. If it is caused by the student
under his care and supervision then yes.
-For damages caused by their pupils or
students so long as they remain in their
custody. And so the next phrase thats
important is so long as they remain in
their custody.
You are in our custody so long as you
are in school even if you are not in the
classroom because you are taking
recess. The idea then was youre in
31
 school for some legitimate student
purpose like attending a class, taking
a short break to back to the classroom
after the recess.
Amadora case
-the Court said, for as long as you are in school
whether for a legitimate student activity,
as when you are going to finish a project,
or even when you are not doing any
student activity but you are there simply to
enjoy a legitimate student right or
privilege, as when youre here to enjoy the
company of classmates, the library, or
when you are here to just enjoy the
ambiance.
Then the Family Code comes along. It
says even when you are not in school,
even outside the school for as long as
it is for an authorized school activity
the teacher is liable.
-So you see the change of the meaning of the
phrase so long as you remain in our
custody. From attending classes to not
attending classes but being just here in
school for a legitimate student privilege to
now include even activities done outside
the school premises for as long as they are
authorized.
-The only thing that has changed between
2180 and 218 is the persons to be held
responsible. If teacher then 2180 may be
made as basis, but if you want the school
or the administrators to be held liable as
well then you go to Family Code 218.
o Because there is nothing in 2180
that holds schools and
administrators liable, except that
the heads of schools of arts and
trade refers to the administrator
BUT not to an academic
institution.
-The other difference also is that 2180 deals
with liability of teachers for damages
caused by their students, but 218 says
school, teacher, and administrator for the
acts of the unemancipated minor.
o So if one involved is a minor you can
use 218, but if the one involved is
not a minor then your legal basis
2180 dealing only with teachers.
Theres another way you can hold the
school responsible. And that is in the
concept of school as employer or
school by way of contract.
Regino v Pangasinan Colleges
-there is an existing contract between school
and student. On the part of the school we
have the obligation to provide you with an
environment conducive to learning, and on
the part of the student is to pay the tuition
and abide by the school rules and
regulations.
So three ways in holding the school liable:
a. Art. 218 of the Family Code
b. school as employer
c. School under its contractual
obligation.
How do you establish diligence of good father
of a family?
Amadora case:
-You have parents of the student who was shot
filing a case against the school against the
father rector of USJR at that time, but also
against the teacher in charge, the Physics
teacher in charge. But SC absolved them.
What was the thinking of the court, what
was employed by the court in absolving
them?
-The SC said, here is a teacher who has
exercised the diligence of a good father of
a family. Because evidence was presented
showing that this teacher enforced the
rules and regulations of the school.
-The court said that there was no showing of
laxness in enforcing the rules and
regulations of the school. So even he was
not there, you might have thought that
this might have been a case of absence of
due diligence because he was not there at
that time. The counter-argument was that
he was not expected to be there because
there were no more classes, but still he
was able to show due diligence because he
enforced the school rules and regulations.
Knowing that now we have extended the reach of
the responsibility of teachers to include even
activities outside the school, this is the reason why
in the problem you are asked teachers to deal with
students of basic education, pupils, minors. And
teachers of college of business and economics, or
law and economics, IOW, no longer minors. CHED
said, the one that governs higher educations, in so
far as field trips and educational tours are
concerned, youve got to follow CMO17 Series of
2012. This was passed because of what happened
in the CIS, Cebu International School . We
defended one of the teachers there, kadto bitaw
class sa Batanes ba ni cya where one of the student
drowned while they were having educational tour.
The thing is that there is semantics, but just to be
precise about it, field trips, educational tour, field
trip if it would last only for a day, beyond that youd
call it educational tour.
You have CHED being very strict about the rules to
observe when you want to go on a field trip or
educational tour. First is you cannot just do this at
your will. You must have to point this particular
field trip or ed. Tour to some learning outcome.
You might even want to indicate what title or what
particular reason, what aspect in the syllabus are
we triggering.
The other is advanced coordination with the LGU if
you are doing the ed. Tour or field trip with the LGU.
Consultation with the faculty and the students,
with attached minutes of consultation. If you will
be doing the trip outside of the place where the
school is located, you have to coordinate with a
DOT accredited travel agency, not just any travel
agency with matching accreditation certificate.
And then, students must have to be required to
come up with learning journals. Risk assessment
plan, and a duly notarized consent and medical
clearance by the parent of physician. Also medical
certificate and medical certificate. There should be
a documentation pertaining to the program.
When you present this to the teachers, many of
them complain, but that is the best evidence of due
32
diligence.

When you want the school to be responsible, you

have to show that the school activity was
authorized. And insofar as USC is concerned,
Father Salas, V-President of academic affairs
issued a memo that says an activity shall only be
deemed authorized if it carries his approval, and it
will only carry his approval of all of the
requirements under CMO17 is complied. And if
you dont follow that, that is an unauthorized
school activity, and school is not liable.

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