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III.

Contributory Negligence

The complaint filed by the plaintiff, as she stated that her children might have ingested the pan
coating, is untenable and such action is premature. No clear showing of damage or injury to
children nor evidenced by medical documents. The herein plaintiff is not even certain that the
children have ingested the pan coating. Indubitably, plaintiff has no cause of action to indict
the defendant. A cause of action is the act or omission by which a party violates a right of
another. 1 The essential elements of a cause of action are: (a) the existence of a legal right in
favor of the plaintiff; (b) a correlative legal duty of the defendant to respect such right; and (c)
an act or omission by such defendant in violation of the right of the plaintiff with a resulting
injury or damage to the plaintiff for which the latter may maintain an action for the recovery of
relief from the defendant.2 Although the first two elements may exist, a cause of action arises
only upon the occurrence of the last element, giving the plaintiff the right to maintain an action
in court for recovery of damages or other appropriate relief.3

In Philippine American General Insurance Co. Inc. vs. Sweet Lines, Inc.,
the Supreme Court declared that:

Now, before an action can properly be commenced all the


essential elements of the cause of action must be in existence, that is,
the cause of action must be complete. All valid conditions precedent
to the institution of the particular action, whether prescribed by
statute, fixed by agreement of the parties or implied by law must be
performed or complied with before commencing the action, unless
the conduct of the adverse party has been such as to prevent or waive
performance or excuse non-performance of the condition.

It bears restating that a right of action is the right to presently


enforce a cause of action, while a cause of action consists of the
operative facts which give rise to such right of action. The right of
action does not arise until the performance of all conditions
precedent to the action and may be taken away by the running of the
statute of limitations, through estoppel, or by other circumstances
which do not affect the cause of action. Performance or fulfillment of
all conditions precedent upon which a right of action depends must
be sufficiently alleged, considering that the burden of proof to show
that a party has a right of action is upon the person initiating the suit.

1 Rule 2 Sec. 2 Rules of Court


2 Rebollido v. Court of Appeals, G.R. No. 81123, February 28, 1989, 170 SCRA 800; Heirs of Ildefonso
Coscolluela v. Rico General Insurance Corporation, G.R. No. 84628, November 16, 1989, 179 SCRA
511; Nabus v. Court of Appeals, G.R. No. 91670, February 7, 1990, 193 SCRA 732;Mathay v. Consolidated
Bank, G.R. No. L-23136, August 26, 1974, 58 SCRA 559; Leberman Realty Corporation v. Typingco, G.R.
No. 126647, July 29, 1998, 293 SCRA 316.
3 Swagman Hotels and Travel, Inc. v. Court of Appeals, G.R. No. 161135, April 8, 2005, 455 SCRA 175.
The Turners right of action arose only when petitioner had already
retained earnings in the amount of P11,975,490.00 on March 21, 2002; such
right of action was inexistent on January 22, 2001 when they filed the
Complaint.

In the doctrinal case of Surigao Mine Exploration Co. Inc., vs. Harris, the
Supreme Court ruled:

Subject to certain qualifications, and except as otherwise


provided by law, an action commenced before the cause of action has
accrued is prematurely brought and should be dismissed. The fact
that the cause of action accrues after the action is commenced and
while it is pending is of no moment. It is a rule of law to which there is,
perhaps, no exception, either at law or in equity, that to recover at all
there must be some cause of action at the commencement of the
suit. There are reasons of public policy why there should be no
needless haste in bringing up litigation, and why people who are in no
default and against whom there is as yet no cause of action should
not be summoned before the public tribunals to answer complaints
which are groundless. An action prematurely brought is a groundless
suit. Unless the plaintiff has a valid and subsisting cause of action at
the time his action iscommenced, the defect cannot be cured or
remedied by the acquisition or accrual of one while the action is
pending, and a supplemental complaint or an amendment setting up
such after-accrued cause of action is not permissible.

Nevertheless, assuming arguendo that there is a cause of action that the plaintiff may
have against the defendant Sunshine, the former notwithstanding had acted with Contributory
Negligence on her part due to the wrong use of the frying pan when it had no instruction
regarding its use:

x x x But if his negligence was only contributory, the immediate and


proximate cause of the injury being the defendants lack of due care,
the plaintiff may recover damages, but the courts shall mitigate
the damages to be awarded. 4

Plaintiff should have noticed the pan coating come of during the cooking process, after
she transfers the food to the container and even before the children eats the cooked meal.
Plaintiff lacked the sense of responsibility when she feed the cooked meal to her children. For it
not had been the failure to observe sense of responsibility, she could have not given her

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Art. 2179 of the New Civil Code of the Philippines
children such food. In addition to the plaintiff’s lack of vigilance, Vani Houseware Inc had found
out that the damage to the frying pans was caused by the consumer’s improper use, such as
overheating, scrubbing with scouring pad, or banging pan on stove. The plaintiff’s contention
to the pan coating coming off may be due to her improper use.

As the pan had no indicated instructions, she could have consulted the supplier regarding the
usage. Otherwise, it was negligence on her part to use the frying pan without any necessary
precautions. This situation falls under the doctrine of caveat emptor or ‘as is where is’5, where
she used the frying pan on her own risk notwithstanding that there is no provided instructions
on the bundled promo pack. Thus, without checking the product itself, she therefore bought
the frying pan as it is.

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Consolidated Rural Bank, Inc. vs. The Honorable Court of Appeals and Heirs of Teodoro Cruz G.R. No.
132161 January 17, 2005

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