I. TORTS

TORT

fr. French word derived from Latin Torquere meaning to twist. An unlawful violation of private right, not created by contract, and which gives rise to an action for damages. It is an act or omission producing an injury to another, without any previous existing lawful relation of which the said act or omission may be said to be a natural outgrowth or incident. Private or civil wrong or injury, other than breach of contract, for which the court will provide a remedy in the form of an action for damages. There must always be violation of some duty that must arise by operation of law and not by mere agreement of the parties.

NOTES: An unborn child is NOT entitled to damages. But the bereaved parents may be entitled to damages, on damages inflicted directly upon them. (Geluz vs. CA, 2 SCRA 802) Defendants in tort cases can either be natural or artificial being. Corporations are civilly liable in the same manner as natural persons. Any person who has been injured by reason of a tortious conduct can sue the tortfeasor. The primary purpose of a tort action is to provide compensation to a person who was injured by the tortious conduct of the defendant. Preventive remedy is available in some cases.Classes of Torts:

A. Intentional TortsB. Negligent Torts

C. Strict Liability

INTENTIONAL TORTS

Include conduct where the actor desires to cause the consequences of his act or believes that the consequences are substantially certain to result from it.

e.g., assault, battery, false imprisonment, defamation, invasion of privacy and interference of property

They are found in Chapter 2 of the Preliminary Title of the NCC entitled “Human Relations”. Although this chapter covers negligent acts, the torts mentioned herein are mostly intentional in nature or torts involving malice or bad faith.

NEGLIGENT TORTS

voluntary acts or omissions which result in injury to others without intending to cause the same or because the actor fails to exercise due care in performing such acts or omissions.

STRICT LIABILITY

where the person is made liable independent of fault or negligence upon submission of proof of certain facts.

NEGLIGENCE The omission of that degree of diligence which is required by the nature of the obligation and corresponding to the circumstances of persons, time and place. (Article 1173 Civil Code)

SOURCES OF PHILIPPINE TORT LAW1. The New Civil Code : Article 1157 (extra-contractual obligation; Chapter XVII Chapter 2 – Articles 2176 to

2194 a. Civil Coode of 1889 ( Spanish and French origin)b. Anglo-American law c. Restatement of doctrines laid down by the SC d. Filipino Customs

2. The Philippines, by its contact with Western Culture from the last four centuries, is a rightful beneficiary of the Roman Law.

3. Element of American Culture has been incorporated into Filipino life during the nearly half apprenticeship of democratic apprenticeship under the American auspices.; foreseeable economic relations between the two countries; American and English courts have developed certain equitable rules that are not recognized in the present Civil Code.

4. The concepts of right and wrong are essentially the same throughout the civilized world.

Kinds of Negligence:1. Culpa Contractual (contractual negligence) Governed by CC provisions on Obligations and Contracts, particularly Arts. 1170 to 1174 of the Civil Code.

2. Culpa Aquiliana (quasi-delict) Governed mainly by Art. 2176 of the Civil Code

3. Culpa Criminal (criminal negligence) Governed by Art. 365 of the Revised Penal Code.NOTES:

The 3 kinds of negligence furnish separate, distinct, and independent bases of liability or causes of action. A single act or omission may give rise to two or more causes of action.

Culpa Contractual Culpa AquilianaThe foundation of the liability of the defendant is the contract It is a separate source of obligation independent of contract

In breach of contract committed through the negligence of employee, the employer cannot erase his primary and direct liability by invoking exercise of diligence of a good father of a family in the selection and supervision of the employee.

In quasi-delict the presumptive responsibility for the negligence of his servants can be rebutted by proof of the exercise of due care in their selection and supervision.

Culpa Aquiliana Crime

Only involves private concern Affect the public interest

The Civil Code by means of indem-nification merely repairs the damage

The Revised Penal Code punishes or corrects criminal act

Includes all acts in which any kind of fault or negligence intervenes

Punished only if there is a penal law clearly covering them

Liability is direct and primary in quasi-delict

Liability of the employer of the actor-employee is subsidiary in crimes

QUASI-DELICT

Whoever by act or omission causes damage to another, there being fault or negligence is obliged to pay forthe damage done. (Article 2176 Civil Code)

Essential Requisites for a quasi-delictual action: 1. Act or omission constituting fault or negligence; 2. Damage caused by the said act or omission; and 3. Causal relation between the damage and the act or omission.

Tests of Negligence1. Did the defendant in doing the alleged negligent act use the reasonable care and caution which an ordinarily

prudent person would have used in the same situation? If not then he is guilty of negligence. 2. Could a prudent man, in the case under consideration, foresee harm as a result of the course pursued? If so, it was the duty of the actor to take precautions to guard against harm.

NOTES: Negligence is a conduct - the determination of the existence of negligence is concerned with what the defendant did or did not do

The state of mind of the actor is not important; good faith or use of sound judgment is immaterial. The existence of negligence in a given case is not determined by reference to the personal judgment but by the behavior of the actor in the situation before him. (Picart vs. Smith)

Negligence is a conduct that creates an undue risk of harm to others. The determination of negligence is a question of foresight on the part of the actor – FORESEABILITY.

Even if a particular injury was not foreseeable, the risk is still foreseeable if possibility of injury is foreseeable.

Forseeability involves the question of PROBABILITY, that is, the existence of some real likelihood of some damage and the likelihood is of such appreciable weight reasonably to induce, action to avoid it.

Calculation of Risk Interests are to be balanced only in the sense that the purposes of the actor, the nature of his act and the harm that may result from action or inaction are elements to be considered.

Circumstances to consider in determining negligence: (PEST-GAP)1. Time2. Place3. Emergency

Emergency ruleGENERAL RULE: An individual who suddenly finds himself in a situation of danger and is required to act without much time to consider the best means that may be adopted to avoid the impending danger is not

guilty of negligence if he fails to undertake what subsequently and upon reflection may appear to be a better solution.EXCEPTION: When the emergency was brought by the individual’s own negligence. (Valenzuela vs. CA 253 SCRA 303).

4. Gravity of Harm to be avoided5. Alternative Course of Action

If the alternative presented to the actor is too costly, the harm that may result may be still be considered unforeseeable to a reasonable man.

6. Social value or utility of activity 7. Person exposed to the risk

GOOD FATHER OF A FAMILY (pater familias): - this is the standard of conduct used in the Philippines- a man of ordinary intelligence and prudence or an ordinary reasonable prudent mana reasonable man deemed to have knowledge of the facts that a man should be expected to know based on ordinary human experience. (PNR vs IAC, 217 SCRA 409)- a prudent man who is expected to know the basic laws of nature and physics, e.g. gravity.

SPECIAL RULES1. Children The action of the child will not necessarily be judged according to the standard of an adult. But if the minor is mature enough to understand and appreciate the nature and consequence of his actions, he will be considered negligent if he fails to exercise due care and precaution in the commission of such acts. NOTES: The law fixes no arbitrary age at which a minor can be said to have the necessary capacity to understand and appreciate the nature and consequence of his acts. (Taylor vs. Meralco, 16 Phil 8) Applying the provisions of the Revised Penal Code, Judge Sangco takes the view that a child who is 9 or below is conclusively presumed to be incapable of negligence. In the other hand, if the child is above 9 years but below 15, there is a disputable presumption of absence of negligence. Absence of negligence does not necessarily mean absence of liability. Liability without fault: a child under 9 years can still be subsidiarily liable with his property (Art. 100, RPC) Absence of negligence of the child may not excuse the parents from their vicarious liability under Art. 2180 NCC or Art. 221 FC.

2. Physical Disability Mere weakness of a person will not be an excuse in negligence cases. However if defect amounts to a real disability the standard of conduct is that of a reasonable person under like disability.

3. Experts and professionals They should exhibit the care and skill of one who is ordinarily skilled in the particular field that he is in. When a person holds himself out as being competent to do things requiring professional skill, he will be held liable for negligence if he fails to exhibit the care and skill of one ordinarily skilled in the particular work which he attempts to do. An expert will not be judged based on what a non-expert can foresee. The rule regarding experts is applicable not only to professionals who have undergone formal education.

4. Nature of activity There are activities which by nature impose duties to exercise a higher degree of diligence.Examples:

a. Banks, by the very nature of their work, are expected to exercise the highest degree of diligence in the selection and supervision of their employees.b. Common carriers are required to exercise extraordinary diligence in the vigilance over their passengers and transported goods. (Article 1733 Civil Code).

5. IntoxicationGENERAL RULE: Mere intoxication is not negligence, nor does the mere fact of intoxication establish want of ordinary care. But it may be one of the circumstances to be considered to prove negligence. EXCEPTION: Under Art. 2185 of the Civil Code, 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.

6. Insanity The insanity of a person does not excuse him or his guardian from liability based on quasi-delict. Bases for holding an insane person liable for his tort:a. Where one of two innocent persons must suffer a loss, it should be borne by the one who occasioned it.b. To induce those interested in the estate of the insane person to restrain and control him.c. The fear that an insanity would lead to false claims of insanity and avoid liability.

7. Women In determining the question of contributory negligence in performing such act, the age, sex, and condition of the passengers are circumstances necessarily affecting the safety of the passenger, and should be considered. (Cangco vs. Manila Railroad Co. GR No.12191, October 14, 1918) Although there is no unequivocal statement of the rule, Valenzuela vs. CA 253SCRA303 appears to require a different standard of care for women under the circumstances indicated therein. However, Dean Guido Calabresi believes that there should be a uniform standard between a men and a women.

Other Factors to Consider in Determining Negligence:A. VIOLATION OF RULES AND STATUTES1. StatutesGENERAL RULE: Violation of a statutory duty is NEGLIGENCE PER SE (Cipriano vs. CA, 263SCRA711). When the Legislature has spoken, the standard of care required is no longer what a reasonably prudent man would do under the circumstances but what the Legislature has commanded. EXCEPTIONS:

a. When unusual conditions occur and strict observance may defeat the purpose of the rule and may even lead to adverse results.

b. When the statute expressly provides that violation of a statutory duty merely establishes a presumption of negligence.

NOTE: Rule as to proof of proximate causeGENERAL RULE: Plaintiff must show that the violation of the statute is the proximate or legal cause of the injury or that it substantially contributed thereto. (Sanitary Steam Laundry, Inc. vs. CA 300SCRA20)EXCEPTION: In cases where the damage to the plaintiff is the damage sought to be prevented by the statute. In such cases, proof of violation of statute and damage to the plaintiff may itself establish proximate cause. (Teague vs. Fernandez 51SCRA181).

2. Administrative Rule Violation of a rule promulgated by administrative agencies is not negligence per se but may be EVIDENCE OF NEGLIGENCE.

3. Private Rules of Conduct. Violation of rules imposed by private individuals (e.g. employers) is merely a POSSIBLE EVIDENCE OF NEGLIGENCE.

B. PRACTICE AND CUSTOM Compliance with the practice and custom in a community will not automatically result in a finding that the actor is not guilty of negligence. Non-compliance with the practice or custom in the community does not necessarily mean that the actor was negligent. In Yamada vs. Manila Railroad Co., the owner of an automobile struck by a train while crossing the tracks sought to establish absence of negligence of its driver by evidence of a custom of automobile drivers of Manila by which they habitually drove their cars over the railroad crossings without slackening speed. The SC rejected the argument by ruling that: a practice which is dangerous to human life cannot ripen into custom which will protect anyone who follows it.

C. COMPLIANCE WITH STATUTES Compliance with a statute is not conclusive that there was no negligence. Example: A defendant can still be held liable for negligence even if he can establish that he was driving below the speed limit. Compliance with the speed limit is not conclusive that he was not negligently driving his car.

Gross Negligence - Negligence where there is “want of even slight care and diligence.”

PROOF OF NEGLIGENCEGENERAL RULE: If the plaintiff alleged in his complaint that he was damaged because of the negligent acts of the defendant, the plaintiff has the burden of proving such negligence. (Taylor vs. MERALCO 16Phil8) The quantum of proof required is preponderance of evidence. (Rule 133 Revised Rules of Court)EXCEPTIONS: Exceptional cases when the rules or the law provides for cases when negligence is presumed.A. Presumptions of NegligenceB. Res Ipsa Loquitur

A. Presumptions of Negligence1. In motor vehicle mishaps, the owner is presumed negligent if he was in the vehicle and he could have used due diligence to prevent the misfortune. (Article 2184 Civil Code)2. It is disputably presumed that a driver was negligent if he had been found guilty of reckless driving or violating traffic regulations at least twice for the next preceding two months. (Article 2184 Civil Code)3. The driver of a motor vehicle is presumed negligent if at the time of the mishap, he was violating any traffic regulation. (Article 2185 Civil Code)4. GENERAL RULE: Prima facie presumption of negligence of the defendant arises if death or injury results from his possession of dangerous weapons or substance.EXCEPTION: When such possession or use is indispensable to his occupation or business. (Article 2188 Civil Code)5. GENERAL RULE: Presumption of negligence of the common carrier arises in case of loss, destruction or deterioration of the goods, or in case of death or injury of passengers. EXCEPTION: Upon proof of exercise of extraordinary diligence.

B. Res Ipsa Loquitur

“The thing or transaction speaks for itself.” It is a rule of evidence peculiar to the law of negligence which recognizes that prima facie negligence may be established in the absence of direct proof, and furnishes a substitute for specific proof of negligence.

Requisites of Res Ipsa Loquitor: 1. The accident was of a kind which ordinarily does not occur in the absence of someone’s negligence; 2. The instrumentality which caused the injury was under the exclusive control and management of the person

charged with negligence; and3. The injury suffered must not have been due to any voluntary action or contribution on the part of the person

injured; absence of explanation by the defendant.

In Africa vs. Caltex (Phil.) Inc. Mar 31, 1966, defendant Caltex was liable for damage done to the property of its neighbors when fire broke out in a Caltex service station. The gasoline station, with all its appliances, equipment and employees, was under the control of the defendant. The persons who knew how the fire started were the defendant and its employees, but they gave no explanation whatsoever. The doctrine is not applicable if there is direct proof of absence or presence of negligence. (S.D. Martinez, et al vs. William Van Buskirk)

AFFIRMATIVE DUTIES AND MISCELLANEOUS ACTIVITIES:1. Duty to RescueA. Duty to the rescuer The defendants are liable for the injuries to persons who rescue people in distress because of the acts or omissions of the said defendants. There is liability to the rescuer and the law does not discriminate between the rescuer oblivious to the peril and the one who counts the costs. The risk of rescue, if only not wanton, is born of the occasion. One who was hurt trying to rescue another who was injured through negligence may recover damages. (Santiago vs. De leon CA-GR No.16180-R March 21, 1960) Danger of personal injury or death.

B. Duty to rescueGENERAL RULE: There is no general duty to rescue; a person is not liable for quasi-delict even if he did not help a person in distress.EXCEPTIONS: A limited duty to rescue is imposed in certain cases:Abandonment of persons in danger and abandonment of one’s own victim is considered, under certain circumstances as a crime against security (Article 275 RPC); and No driver of a motor vehicle concerned in a vehicular accident shall leave the scene of the accident without aiding the victim unless he is excused from doing so. (Section 55 RA 4136 [Land Transportation and traffic Code])

2. Owners, Proprietors and Possessors of PropertyGENERAL RULE: The owner has no duty to take reasonable care towards a trespasser for his protection or even to protect him from concealed danger.NOTE: Damage to any person resulting from the exercise of any rights of ownership is damage without injury (Damnum absque injuria)

EXCEPTIONS:a. Visitors and tolerated possession

The owner is still liable if the plaintiff is inside his property by tolerance or by implied permission. Owners of buildings or premises owe duty of care to visitors.

b. Doctrine of Attractive Nuisance One who maintains on his premises dangerous instrumentalities or appliances of a character likely to attract children in play, and who fails to exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable to a child of tender years who is injured thereby, even if the child is technically a trespasser in the premises.NOTE: A swimming pool or pond or reservoir of water is NOT considered attractive nuisance. (Hidalgo Enterprises vs. Baladan 91 Phil 488)

c. State of Necessity The owner of a thing has no right to prohibit the interference of another with the same if the interference is necessary to avert imminent danger and the threatened damage, compared to the damage arising to the owner from the interference, is much greater. (Article 432 Civil Code) It is also a recognized justifying circumstance under the RPC. In both the Civil Code and the RPC, the owner may demand from the person benefited, indemnity for the damages.

Use of properties that injures another An owner cannot use his property in such a manner as to injure the rights of others. (Article 431 Civil Code). Hence the exercise of the right of the owner may give rise to an action based on quasi-delict if the owner negligently exercises such right to the prejudice of another.

Liability of Proprietors of buildings New Civil Code include provisions that apply to proprietors of a building or structure which involve affirmative duty of due care in maintaining the same: Articles 2190 and 2191. Third persons who suffered damages may proceed only against the engineer or architect or contractor if the damage referred to in Articles 2190 and 2191should be a result of any defect in construction. Nevertheless, actions for damages can still be maintained under Article 2176 for damages resulting from proprietor’s failure to exercise due care in the maintenance of his building and that he used his property in such a way that he injured the property of another.

3. Employers and EmployeesA. Employers Actions for quasi-delict can still be maintained even if employee’s compensation is provided for under the

Labor Code. In quasi-delictual actions against the employer, the employee may use the provisions of the Labor Code which

imposes upon the employer certain duties with respect to the proper maintenance of the work place or the provisions of adequate facilities to ensure the safety of the employees.

Articles 1711 and 1712 of the Civil Code impose liability without fault on the part of the employers.

B. Employees Employees are bound to exercise due care in the performance of their functions for the employers; absence

such due care, the employee may be held liable.

4. Banks The business of banks is one affected by public interest. Because of the nature of its functions, a bank is under obligation to treat the accounts of its depositors with meticulous care, always having in mind the fiduciary nature of their relationship. (PBC vs. CA [1997])

5. Common carriers From the nature of their business and for reasons of public policy, they are bound to exercise extraordinary diligence in the vigilance over the goods and the safety of the passengers. The case against the common carrier is for the enforcement of an obligation arising from breach of contract. The same act which breached the contract may give rise to an action based on quasi delict. (Air France vs Carrascoso, L21438, Sept. 28, 1996)

6. DoctorsA. STANDARD OF CARE The proper standard is whether, the physician if a general practitioner, has exercised the degree of care and skill of the average qualified practitioner, taking into account the advances in the profession. A physician who holds himself out as a specialist should be held to the standard of care and skill of the average member of the profession practicing the specialty, taking into account the advances in the profession.

B. THE CAPTAIN OF THE SHIP DOCTRINE The head surgeon is made liable for everything that goes wrong within the four corners of the operating room. It enunciates the liability of the surgeon not only for the wrongful acts of those under his physical control but also those wherein he has extension of control.C. NOT WARRANTORS Physicians are not warrantors of cures or insurers against personal injuries or death of the patient.

D. PROOF Expert testimony should be offered to prove that the circumstances are constitutive of conduct falling below the standard of care employed by other physicians in good standing when performing the same operation. Medical malpractice can also be established by relying on the doctrine of res ipsa loquitor; in which case the need of expert testimony is dispensed with because the injury itself provides the proof of negligence. (Ramos vs. CA, GR No.124354, December 29, 1999) Example: The doctrine was applied in a case of removal of the wrong part of the body when another part was intended.

Two pronged evidence:a. Evidence as to the recognized standards of the medical community in the particular kind of case; andb. A showing that the physician departed from this standard in his treatment. Four elements in medical negligence cases: duty, breach, injury and proximate causation

E. LIABILITY OF HOSPITALS AND CONSULTANTS There is no employer-employee relationship between the hospital and a physician admitted in the said hospital’s medical staff as an active or visiting consultant which would hold the hospital liable solidarily liable for the injury suffered by a patient under Article 2180 of the Civil Code. (Ramos vs. CA GR No 124354, April 11, 2002) The contract between the consultant and the patient is separate and distinct the contract between the hospital and the patient. The first has for its object the rendition of medical services by the consultant to the patient, while the second concerns the provision by the hospital of facilities and services by its staff such as nurses and laboratory personnel necessary for the proper treatment of the patient. (Ramos vs. CA GR No 124354, April 11, 2002)

7. Lawyers An attorney is not bound to exercise extraordinary diligence but only a reasonable degree of care and skill, having reference to the business he undertakes to do.

DEFENSES IN NEGLIGENCE CASESKinds of defenses: A. Complete – completely bars recoveryB. Partial – mitigates liability

1. PLAINTIFFS CONDUCT AND CONTRIBUTORY NEGLIGENCEa. Plaintiffs own negligence as the proximate cause When the plaintiffs own negligence was the immediate and proximate cause of his injury, he cannot recover

damages. (Article 2179 Civil Code)

b. Contributory negligence Conduct on the part of the injured party contributing as a legal cause to the harm he has suffered which falls

below the standard to which he is required to conform for his own protection. (Valenzuela vs. CA 253SCRA303)

If the plaintiffs negligence was only contributory, the immediate and proximate cause of the injury being the defendant’s lack of due care, the plaintiff may recover damages but the courts shall mitigate the damages to be awarded (Article 2179 Civil Code).

Doctrine of Comparative Negligence The relative degree of negligence of the parties is considered in determining whether and to what degree, either should be responsible for his negligence (apportionment of damages). This is the doctrine being applied in our jurisdiction wherein the contributory negligence of the plaintiff does not completely bar recovery but merely results in mitigation of liability; it is a partial defense. The court is free to determine the extent of the mitigation of the defendant’s liability depending upon the circumstances.

2. IMPUTED CONTRIBUTORY NEGLIGENCE Negligence is imputed if the actor is different from the person who is being made liable. The defendant will be subject to mitigated liability even if the plaintiff was not himself personally negligent but

because the negligence of another is imputed to the plaintiff. It is applicable if the negligence was on the part of the person for whom the plaintiff is responsible, and

especially, by negligence of an associate in the transaction where he was injured.

3. FORTUITOUS EVENTS Essential requisites:

a. The cause of the unforeseen and unexpected occurrence, or of the failure of the debtor to comply with his obligation, must be independent of the human will;

b. It must be impossible to foresee the event which constitutes the “caso fortuito,” or if it can be foreseen, it must be impossible to avoid;

c. The occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a normal manner; and

d. The obligor must be free from any participation in the aggravation of the injury resulting to the creditor.NOTE: When an act of God concurs with the negligence of defendant to produce an injury, the defendant is liable if the injury would not have resulted but for his own negligent conduct or omission. The whole occurrence is humanized and removed from the rules applicable to acts of God. (NAPOCOR vs. CA [1993])GENERAL RULE: It is a complete defense and a person is not liable if the cause of the damage is a fortuitous event.EXCEPTION: It is merely a partial defense and the courts may mitigate the damages if the loss would have resulted in any event (Art. 2215(4) Civil Code).

4. ASSUMPTION OF RISK Volenti non fit injuria: One is not legally injured if he has consented to the act complained of or was willing that it should occur.

It is a complete defense.

Elements:

a. The plaintiff must know that the risk is present;

b. He must further understand its nature; and that

c. His choice to incur it is free and voluntary.

KINDS:

a. Express waiver of the right to recover

There is assumption of risk if the plaintiff, in advance has expressly waived his right to recover damages for the negligent act of the defendant.

NOTE: A person cannot contract away his right to recover damages resulting from negligence. Such waiver is contrary to public policy and cannot be allowed. However, the waiver contemplated by this prohibition is the waiver of the right to recover before the negligent act was committed.

If waiver was made after the cause of action accrued, the waiver is valid and may be construed as a condonation of the obligation.

b. Implied Assumptions

i. Dangerous Conditions

A person who, knowing that he is exposed to a dangerous condition voluntarily assumes the risk of such dangerous condition may not recover from the defendant who maintained such dangerous conditions. Example: A person who main-tained his house near a railroad track assumes the usual dangers attendant to the opera-tion of a locomotive. (Rodrigueza vs. Manila Railroad Co., GR No. 15688, Nov. 19, 1921).

ii. Contractual Relations

There may be implied assumption of risk if the plaintiff entered into a contractual relation with the defendant. By entering into a relationship freely and voluntarily where the negligence of the defendant is obvious, the plaintiff may be found to accept and consent to it.

EXAMPLES:

a) The employees assume the ordinary risks inherent in the industry in which he is employed.

- As to abnormal risks, there must be cogent and convincing evidence of consent.

b) When a passenger boards a common carrier, he takes the risks incidental to the mode of travel he has taken.

iii. Dangerous Activities

Persons who voluntarily participate in dangerous activities assume the risks which are usually present in such activities.

EXAMPLE: A professional athlete is deemed to assume the risks of injury to their trade.

iv. Defendant’s negligence

When the plaintiff is aware of the risk created by the defendant’s negligence, yet he voluntarily decided to proceed to encounter it, there is an implied admission.

EXAMPLE: If the plaintiff has been supplied with a product which he knows to be unsafe, he is deemed to have assumed the risk of using such unsafe product.

5. DEATH OF THE DEFENDANT Death of the defendant does not extinguish the obligation based on quasi-delict. An action survives even if the defendant dies during the pendency of the case if the case is an action to recover for an injury to persons or property by reason of tort committed by the deceased. It is no defense at all.

6. PRESCRIPTION An action based on quasi-delict prescribes in four years from the date of the accident. (Article 1146 Civil Code)

Relations Back Doctrine An act done at one time is considered by fiction of law to have been done at some antecedent period. ( Allied

Banking Corp vs. CA, 1989) EXAMPLE: A doctor negligently transfused blood to a patient that was contaminated with HIV. If the effect

became apparent only after five (5) years, the four (4) year prescriptive period should commence only when it was discovered.

7. INVOLUNTARINESS It is a complete defense in quasi-delict cases and the defendant is therefore not liable if force was exerted on him. (Aquino, Torts and Damages)

EXAMPLE: When the defendant was forced to drive his vehicle by armed men. He was, at pain of death, forced to drive at a very fast clip because the armed men were escaping from the policemen. The defendant cannot be held liable, if a bystander is hit as a consequence.

CAUSATION

Proximate Cause That cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, without which the result would not have occurred.

Remote Cause That cause which some independent force merely took advantage of to accomplish something not the natural effect thereof.

Nearest Cause That cause which is the last link in the chain of events; the nearest in point of time or relation. Proximate cause is not necessarily the nearest cause but that which is the procuring efficient and predominant cause.Concurrent Causes The actor is liable even if the active and substantially simultaneous operation of the effects of a third person’s innocent, tortious or criminal act is also a substantial factor in bringing about the harm so long as the actor’s negligent conduct actively and continuously operate to bring about harm to another. (Africa vs. Caltex)

Where several causes producing the injury are concurrent and each is an efficient cause without which the injury would not have happened, the injury may be attributed to all or any of the causes and recovery may be had against any or all of the responsible persons. Where the concurrent or successive negligent acts or omissions of two or more persons, although acting independently, are in combination the direct and proximate cause of a single injury to a third person, and it is impossible to determine what proportion each contributed to the injury, either of them is responsible for the whole injury, even though his act alone might not have caused the entire injury; they become joint tort-feasors and are solidarily liable for the resulting damage under Article 2194 of the Civil Code.

NOTE: Primary cause remains the proximate cause even if there is an intervening cause which merely cooperated with the primary cause and which did not break the chain of causation.

Tests of Proximate Cause Two-part test1. Cause-in-fact Test2. Policy TestNOTE: In determining the proximate cause of the injury, it is first necessary to determine if the defendant’s negligence was the cause-in-fact of the damage to the plaintiff. (Cause-in-fact test)

If the defendant’s negligence was not the cause-in-fact, the inquiry stops. If it is, the inquiry shifts to the question of limit of the defendant’s liability. (Policy test)

CAUSE-IN-FACT TESTS:1. But-For Test The defendant’s conduct is the cause-in-fact if damage would not have resulted had there been no negligence on the part of the defendant. Conversely, defendant’s negligent conduct is not the cause in fact of the plaintiff’s damage if the accident could not have been avoided in the absence thereof.

2. Substantial Factor test The conduct is the cause-in-fact of the damage if it was a substantial factor in producing the injuries. In order to be a substantial factor in producing the harm, the causes set in motion by the defendant must continue until the moment of the damage or at least down the setting in motion of the final active injurious force which immediately produced or preceded the damage.NOTE: If the defendant’s conduct was already determined to be the cause in fact of the plaintiff’s damage under the but for test, it is necessarily the cause in fact of the damage under the substantial factor test. 3. NESS Test The candidate condition may still be termed as a cause where it is shown to be a necessary element in just one of several co-present causal set each independently sufficient for the effect.

Two ways by which co-presence may manifest itself:a.Duplicative causation When two or more sets operate simultaneously to produce the effect; the effect is over-determined.b.Pre-emptive causation When, though coming about first in time, one causal set trumps another potential set lurking in the background; the causal potency of the latter is frustrated.

Multiple causation If there are a number of candidate conditions, which, taken one at a time, would not in fact have been sufficient to cause the accident and the accident was a cumulative effect of all the candidate conditions.

Policy Tests:1. Foreseeability Test

2. Natural and Probable Consequence Test3. Natural and Ordinary or Direct Consequence Test4. Hindsight Test5. Orbit of Risk Test6. Substantial Factor Test

Policy Tests may be divided into Two Groups:1. FORESIGHT PERSPECTIVE/ FORESEEABILITY TESTS The defendant is not liable for the unforeseeable consequences of his acts Liability is limited within the risk created by defendants’ negligent acts.

2. DIRECT PERSEPECTIVE/ DIRECT COSEQUENCES TESTS The defendant is liable for damages which are beyond the risk. Direct consequences are those which follow in sequence from the effect of defendants act upon conditions existing and forces already in operation at the time without intervention of any external forces, which come into active operation later.

Tests applied in the Philippines: New Civil Code has a chapter on Damages which specifies the kind of damage for which the defendant may be held liable and the extent of damage to be awarded to the plaintiff. Cause-in-fact Tests:1. But-for test2. Substantial Factor test3. NESS test Policy test: The directness approach is being applied in this jurisdiction.

NOTE: The definition of proximate cause which includes the element of foresight is not consistent with the express provision of the Article 2202 of the New Civil Code; a person may be held liable whether the damage to the plaintiff may be unforeseen.Cause and Conditions It is no longer practicable to distinguish between cause and condition. The defendant may be liable even if only created conditions, if the conditions resulted in harm to either person or property. EXAMPLES of Dangerous Conditions:1. Those that are inherently dangerous2. Those where a person places a thing which is not dangerous in itself in a dangerous position.3. Those involving products and other things which are dangerous because they are defective.

Efficient Intervening Cause One which destroys the causal connection between the negligent act and the injury and thereby negatives liability. There is NO efficient intervening cause if the force created by the negligent act or omission have either:

1. Remained active itself, or2. Created another force which remained active until it directly caused the result, or3. Created a new active risk of being acted upon by the active force that caused the result.

EXAMPLE: The medical findings, show that the infection of the wound by tetanus was an efficient intervening cause later or between the time Javier was wounded to the time of his death. (People vs. Rellin 77 Phil 1038)

NOTES: A cause is not an intervening cause if it was already in operation at the time the negligent act is committed. Foreseeable intervening causes cannot be considered sufficient intervening causes.

The intervention of unforeseen and unexpected cause is not sufficient to relieve the wrongdoer from consequences of negligence if such negligence directly and proximately cooperates with the independent cause in the resulting injury.

CONTRIBUTORY NEGLIGENCEA. Plaintiff’s negligence is the cause Plaintiff’s negligence is not contributory if it is necessary and sufficient to produce the result. EXAMPLES: 1. Only the plaintiff was negligent.2. Defendant’s negligence is not a part of the causal set which is a part of the causal chain.3. Plaintiff’s negligence was pre-emptive in nature.

B. Compound Causes Plaintiff’s negligence may have duplicative effect, that it, it is sufficient to bring about the effect but his negligence occurs simultaneously with the defendant; the latter’s negligence is equally sufficient but not necessary to bring about the effect because damage would still have resulted due to the negligence of the plaintiff. Plaintiff’s negligence is not merely contributory because it is a concurring proximate cause. No recovery can be had. (Aquino, Torts and Damages)

C. Part of the same causal set Neither plaintiff’s negligence nor defendant’s negligence alone is sufficient to cause the injury; the effect would result only if both are present together with normal background conditions. Negligence of the plaintiff cooperated with the negligence of the defendant in order to bring about the injury; determination of proximate cause is only a matter of degree of participation.

D. Defendant’s Negligence is the Only cause Defendant’s negligence was sufficient AND necessary to bring about the injury. However, if plaintiff’s negligence increased or aggravated the resulting damage or injury liability of the defendant should also be mitigated under contributory negligence rule or under the doctrine of avoidable consequences.Doctrine of Last Clear Chance or Discovered Peril The negligence of the plaintiff does not preclude a recovery for the negligence of the defendant where it appears that the defendant, by exercising reasonable care and prudence, might have avoided injurious consequences to the plaintiff notwithstanding the plaintiff’s negligence.

Alternative Views:1. Prevailing view Doctrine is applicable in this jurisdiction. Even if plaintiff was guilty of antecedent negligence, the defendant is still liable because he had the last clear chance of avoiding the injury.

2. Minority View The historical function of the doctrine was to mitigate the harshness of the common law rule of contributory negligence which prevented any recovery at all by the plaintiff who was also negligent even if his negligence was relatively minor as compared with the wrongful act or omission of the defendant. The doctrine has no role in this jurisdiction where common law concept of contributory negligence has itself been rejected in Article 2179 of the Civil Code.

3. Third View There can be no conflict between the doctrine of last clear chance and doctrine of comparative negligence if the former is viewed as a rule or phrase of proximate cause;

However, the doctrine of last clear chance is no longer applicable if the force created by the plaintiff’s negligence continues until the happening of the injurious event.

Cases when the doctrine was held inapplicable (PICCA)1. If the p laintif f was not negligent.2. The party charged is required to act i nstantaneously , and if the injury cannot be avoided by the application of all the means at hand after the peril is or should have been discovered.3. If defendant’s negligence is a c oncurrent cause and which was still in operation up to the time the injury was inflicted.4. Where the plaintiff, a passenger, filed an action against a carrier based on c ontract. 5. If the actor, though negligent, was not a ware of the danger or risk brought about by the prior fraud or negligent act.

HUMAN RELATIONS

1. Principle of Abuse of Rights (ART.19)

Elements:

a. Legal right or duty; b. The right or duty is exercised in bad faith; and c. For the sole intent of prejudicing or injuring another.

EXAMPLE: If the principal unreasonably terminated an agency agreement for selfish reasons. (Valenzuela vs. CA, 190 SCRA 1)NOTE: This rule is a departure from the traditional view that a person is not liable for damages resulting from the exercise of ones right.

2. Article 20 of the Civil Code

Speaks of the general sanction for all other provisions of law which do not especially provide for their own sanction.

NOTE: Article 20 does not distinguish; the act may be done willfully or negligently.

3. Acts contra bonus mores (Article 21 Civil Code)

Elements:

a. Act which is legal; b. The act is contrary to morals, good customs, public order or public policy; andc. The act is done with intent to injure. NOTE: Damages are recoverable even if no positive law was violated.

Kinds:

a. Breach of promise to marry

GENERAL RULE: Breach of promise to marry by itself is not actionable.

EXCEPTION: In cases where there is another act independent of the breach of promise to marry which gives rise to liability:

1. Cases where there was financial damage.2. Social humiliation caused to one of the parties.

3. Where there was moral seduction.

NOTES:

Moral seduction, although not punishable, connotes the idea of deceit, enticement, superior power or abuse of confidence on the part of the seducer to which the woman has yielded. (Gashem Shokat Baksh vs. CA)

Sexual intercourse is not by itself a basis for recovery; damages could only be awarded if the sexual intercourse is not a product of voluntariness or mutual desire.

b. Seduction without breach of promise to marry

Seduction, by itself, is also an act contrary to morals, good customs and public policy.

The defendant is liable if he employed deceit, enticement, superior power or abuse of confidence in successfully having sexual intercourse with another even if he satisfied his lust without promising to marry the offended party.

It may not even matter that the plaintiff and the defendant are of the same gender.

c. Sexual assault

Defendant is liable for all forms of sexual assault including crimes defined under the RPC as rape, acts of lasciviousness and seduction.

d. Desertion by a spouse

A spouse has a legal obligation to live with his/her spouse.

If a spouse does not perform his/her duty to the other, he may be liable for damages for such omission because the same is contrary to law, morals, good customs and public policy.

e. Trespass and Deprivation of Property

2 KINDS:

1) Trespass to and/or deprivation of real property

Liability for damages under the RPC and Article 451 of the Civil Code requires intent or bad faith.

Article 448 of the Civil Code in relation to Article 456 does not permit action for damages where the builder, planter, or sower acted in good faith. The landowner is limited to the options given to him under article 448, that is to appropriate whatever is built or planted or to compel the builder or planter to purchase the portion encroached upon. (Aquino, Torts and Damages)

A builder in good faith who acted negligently may be held liable under Art. 2176 NCC.

2) Trespass to or deprivation of personal property

In the field of tort, trespass extends to all cases where a person is deprived of his personal property even in the absence of criminal liability.

NOTE: It may cover cases where the defendant was deprived of personal property for the purpose of obtaining possession of real property

EXAMPLE: The defendant who was landlord, was held liable because he deprived the plaintiffs, his tenants, of water in order to force them to vacate the lot they were cultivating. (Magbanua vs. IAC 137 SCRA 352)

3) Disconnection of electricity or gas service

The right to disconnect and deprive the customer, who unreasonably fails to pay his bills, of electricity should be exercised in accordance with the law and rules.

Example: If a company disconnects the electricity service without prior notice as required by the rules, the company commits a tort under Article 21 NCC.

f. Abortion and Wrongful Death

Damages may be recovered by both spouses if:

1) the abortion was caused through the physician’s negligence, or

2) was done intentionally without their consent

Husband of a woman who voluntarily procured her abortion may recover damages from the physician who caused the same on account of distress and mental anguish attendant to the loss of the unborn child and the disappointment of his parental expectation. (Geluz vs. CA 2SCRA802)

g. Illegal Dismissal

The right of the employer to dismiss an employee should not be confused with the manner in which the right is exercised and the effects flowing therefrom;

If the dismissal was done anti-socially and oppressively, the employer should be deemed to have violated Article 1701 of the Civil Code (which prohibits acts of oppression by either capital or labor against the other) and Article 21 NCC.

An employer may be held liable for damages if the manner of dismissing is contrary to morals good customs and public policy.

EXAMPLE: False imputation of misdeed to justify dismissal or any similar manner of dismissal which is done abusively.

h. Malicious Prosecution

An action for damages brought by one against another whom a criminal prosecution, civil suit, or other legal proceeding has been instituted maliciously and without probable cause, after the termination of such prosecution, suit or proceeding in favor of the defendant therein.

The gist of the action is putting legal process in force regularly, for mere purpose of vexation or injury. (Drilon vs. CA [1997])

Elements:

1. The fact of the prosecution and the further fact that the defendant was himself the prosecutor; and that the action was finally terminated with an acquittal;

2. That in bringing the action, the prosecutor acted without probable cause;

3. The prosecutor was actuated or impelled by legal malice.

NOTES:

Malice is the inexcusable intent to injure, oppress, vex, annoy or humiliate. Presence of probable cause signifies absence of malice.

Absence of malice signifies good faith on the part of the defendant; good faith may even be based on mistake of law.

Acquittal presupposes that a criminal information is filed in court and final judgment rendered dismissing the case; nevertheless, prior acquittal may include dismissal by the prosecutor after preliminary investigation. (Globe Mackay and Radio Corp. vs. CA; Manila Gas Corp vs. CA)

i. Public Humiliation

Damages may be awarded in cases where the plaintiff suffered humiliation through the positive acts of the defendant directed against the plaintiff.

Example: The defendant was held liable for damages under Art. 21 for slapping the plaintiff in public. (Patricio vs. Hon. Oscar Leviste, [1989])

NOTES:

Under Article 21, damages are recoverable even though no positive law was violated. An action can only prosper when damage, material or otherwise, was suffered by the plaintiff. An action based on Articles 19-21 will be dismissed if the plaintiff merely seeks “recognition”. Under Articles 19 and 21, the defendant may likewise be guilty of a tort even if he acted in good faith. (Grand Union Supermarket vs. Espino)

TORTS AGAINST HUMAN DIGNITYTYPES:1. Violation of the right of privacy Reasonableness of a person’s expectation of privacy depends on a two-part test:

a) Whether by his conduct, the individual has exhibited an expectation of privacy.b) Whether this expectation is one that the society recognizes as reasonable.

NOTES:GENERAL RULE: Right to privacy can be invoked only by natural persons; Juridical persons cannot invoke such right because the entire basis of right to privacy is an injury to the feelings and sensibilities of a party, a corporation would have no such ground.EXCEPTION: Right against unreasonable searches and seizure can be invoked by a juridical entity.

GENERAL RULE: Right to privacy is purely personal in nature, hence:1) It can be invoked only by the person whose privacy is claimed to have been violated.2) It can be subject to waiver of the person whose privacy is sought to be intruded into.3) The right ceases upon the death of the person.EXCEPTION: A privilege may be given to the surviving relatives of a deceased person to protect his memory but the privilege exist for the benefit of the living, to protect their feelings and to prevent the violation of their own rights in the character and memory of the deceased. Standard to be applied in determining if there was a violation of the right is that of a person with ordinary sensibilities. It is relative to the customs of time and place and is determined by the norm of an ordinary person.

Four Types of Invasion of Privacya. Intrusion upon plaintiff’s seclusion or solitude or into his private affairs It is not limited to cases where the defendant physically trespassed into another’s property. It includes

cases when the defendant invades one’s privacy by looking from outside (Example: “peeping-tom”).

GENERAL RULE: There is no invasion of right to privacy when a journalist records photographs or writes about something that occurs in public places.EXCEPTION: When the acts of the journalist should be to such extent that it constitutes harassment or overzealous shadowing.

The freedom of the press has never been construed to accord newsmen immunity from tort or crimes committed during the course of the newsgathering.

There is no intrusion when an employer investigates an employee or when the school investigates its student.

RA 4200 makes it illegal for any person not authorized by all the parties to any private communication to secretly record such communication by means of a tape recorder (Ramirez vs CA, Sept. 28, 1995)

Use of a telephone extension for purposes of overhearing a private conversation without authorization does not violate RA 4200.NOTE: There are instances where the school might be called upon to exercise its power over its student for acts committed outside the school premises and beyond school hours in the following:1. In cases of violation of school policies or regulations occurring in connection with school sponsored

activity off-campus; or2. In cases where the misconduct of the student involves his status as a student or affects the good name

and reputation of the school.

b. Publication of Embarrassing Private Facts Requisites:1. Publicity is given to any private or purely personal information about a person;2. Without the latter’s consent; and3. Regardless of whether or not such publicity constitutes a criminal offense, like libel or defamation, the circumstance that the publication was made with intent of gain or for commercial and business purposes invariably serves to aggravate the violation of the right.

PUBLIC FIGURE - A person, who by his accomplishments, fame or mode of living or by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs and his character.

NOTE: Public figures, most especially those holding responsible positions in government enjoy a more limited right to privacy compared to ordinary individuals.

The interest sought to be protected is the right to be free from unwarranted publicity, from the wrongful publicizing of the private affairs and activities of an individual which are outside the realm of legitimate public concern. The publication of facts derived from the records of official proceedings which are not otherwise declared by law as confidential, cannot be considered a tortious conduct.

c. Publicity which places a person in a false light in the public eye The interest to be protected in this tort is the interest of the individual in not being made to appear before the public in an objectionable false light or false position.EXAMPLE: Defendant was held liable for damages when he published an unauthorized biography of a famous baseball player exaggerating his feats on the baseball field, portraying him as a war hero. (Spahn vs. Messner) If the publicity given to the plaintiff is defamatory, hence an action for libel is also warranted; the action for invasion of privacy will afford an alternative remedy. May be committed by the media by distorting a news report.

Tort of Putting Another in False

Light

Defamation

1. As to gravamen of claimThe gravamen of claim is not the reputational

The gravamen of claim is the reputa-tional

harm but rather the embarrassment of a person being made into some-thing he is not

harm

2. As to publicationThe statement should be actually made in public

Publication is satisfied if a letter is sent to a third person

3. As to the defamatory character of the statements

Defendant may still be held liable even if the statements tells something good about the plaintiff

What is published lowers the esteem in which the plaintiff is held

d. Commercial appropriation of likeness The unwarranted publication of a person’s name or the unauthorized use of his photograph or likeness for commercial purposes is an invasion of privacy. With respect to celebrities, however, the right of publicity is often treated as a separate right that overlaps but is distinct from the right of privacy. They treat their names and likeness as property and they want to control and profit therefrom.

2. Interference with Family and other relations The gist of the tort is an interference with one spouse’s mental attitude toward the other and the conjugal

kindness of marital relations resulting in some actual conduct which materially affects it. It extends to all cases of wrongful interference in the family affairs of others whereby one spouse is induced to

leave the other spouse or conduct himself or herself that the comfort of married life is destroyed. If the interference is by the parents of the spouse, malice must be proven.

3. Intriguing to Cause Alienation

4. Vexation and Humiliation Discrimination against a person on account of his physical defect, which causes emotional distress, may result

in liability on the part of the offending party. Sexual Harassment falls under this category.- a civil action separate and distinct from the criminal action may be commenced under RA 7877.- 2 types of Sexual harassment:

a) quid pro quo casesb) hostile environment cases

TORTS WITH INDEPENDENT CIVIL ACTIONS1. Violation of civil and political rights (Article 32) Although the same normally involves intentional acts, it can also be committed through negligence. Public officer who is a defendant cannot escape liability under the doctrine of state immunity; the said

doctrine applies only if acts involved are done by officers in the performance of their official duty within the ambit of their powers; officers do not act within the ambit of their powers if they violate the constitutional rights of persons.

2. Defamation, Fraud, and Physical injuries (Article 33)A. Defamation Defamation is an invasion of the interest in reputation and good name, by communication to others which tends to diminish the esteem in which the plaintiff is held, or to excite adverse feelings or opinion against him. Includes the crime of libel and slander.

RPC considers the statement defamatory if it is an imputation of circumstance tending to cause the dishonor, discredit or contempt of natural or juridical person or to blacken the memory of one who is dead. Requisites for one to be liable for defamatory imputations:

a. It must be defamatoryb. It must be maliciousc. It must be given publicityd. The victim must be identifiable

NOTES: Test in determining the defamatory character of the imputation: A charge is sufficient if the words are calculated to induce the hearers to suppose and understand that the person/s against whom they were uttered were guilty of a certain offense, or are sufficient to impeach their honesty, virtue, or reputation, or to hold the person/s up to public ridicule.

Dissemination to a number of persons is not required, communication to a single individual is sufficient publication.GENERAL RULE: Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention or justifiable motive for making it is shown.EXCEPTIONS:

1. A private communication made by any person to another in the performance of any legal, moral or social duty; and2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report, or speech delivered in said proceedings or of any other act performed by public officers in the exercise of their functions.

It is not sufficient that the offended party recognized himself as the person attacked or defamed, it must be shown that at least a third person could identify him as the object of the libelous publication. In order to escape liability, the defendant may claim that the statements made are privileged.

Two kinds of privileged communication:1) Absolutely privilege – Those which are not actionable even if the author acted in bad faith.2) Qualifiedly privilege – not actionable unless found to have been made without good intention or

justifiable motive.

B. Fraud Elements of deceit

1)The defendant must have made false representation to the plaintiff2)The representation must be one of fact3)The defendant must know that the representation is false or be reckless about whether it is false4)The defendant must have acted on the false representation5)The defendant must have intended that the false representation should be acted on6)The plaintiff must have suffered damage as a result of acting on the false representation

Half-truths are likewise included; it is actionable if the withholding of that which is not stated makes that which is stated absolutely false. Misrepresentation upon a mere matter of opinion is not an actionable deceit.

C. Physical injuries Battery – an intentional infliction of a harmful or offensive bodily contact; bodily contact is offensive if it offends a reasonable person’s sense of dignity. Assault – intentional conduct by one person directed at another which places the latter in apprehension of immediate bodily harm or offensive act. Includes bodily injuries causing death.

Physical injuries which resulted because of negligence or imprudence is not included in Article 33; they are already covered by Article 2176 of the Civil Code.

3. Neglect of duty by police officers (Article 34) Subsidiary liability of cities and municipalities, is imposed so that they will exercise great care in selecting

conscientious and duly qualified policemen and exercise supervision over them in the performance of their duties.

CIVIL LIABILITY ARISING FROM DELICT Every person criminally liable for a felony is also civilly liable. (Article 100 RPC) The reason is because a crime has a dual character: as an offense against the State and against the private

person injured by it. Dual character of crimes applies to cases governed by special laws. Example: violation of the BP 22 results in

criminal and civil liability. There is civil liability even if the offense is a public offense, like in bigamy. Persons liable are the principal, accomplice and accessories. It includes restitution, reparation of damages and indemnification of consequential damages. The rule on proximate cause in quasi-delict cases is applicable to cases involving civil liability arising from

delict. Art. 2202, NCC

Circumstances affecting Civil Liability1. Justifying circumstances

Defendant is free from civil liability if justifying circumstances are properly establishes.2. Exempting Circumstances

They do not erase the civil liability.3. Mitigating and Aggravating Circumstances

Damages to be adjudicated may either be decreased or increased depending on the presence of mitigating or aggravating circumstances.

Effect of DeathA. DEATH AFTER FINAL JUDGMENT: extinguishes criminal liability of the person liable but will not extinguish the

civil liability.

B. DEATH BEFORE FINAL JUDGMENT:GENERAL RULE: The defendant is relieved from both criminal and civil liability arising from criminal liability. EXCEPTION: In case of libel and physical injuries wherein the plaintiff initially opted to claim damages in the criminal proceeding can file another case under Article 33 of the Civil Code.

Effect of Pardon Pardon does not erase civil liability. While pardon removes the existence of guilt so that in the eyes of the law the offender is deemed innocent and treated as though he never committed the offence, it does not operate to remove all the effects of the previous conviction.

DEFENDANTS IN TORT CASES

Concurrent Negligence or Acts1. Joint Tort-feasors All the persons who command, instigate, promote, encourage, advice, countenance, cooperate in, aid, or abet the commission of a tort, or who approve of it after it is done, if done for their benefit; they are each liable as a principal, to the same extent and in the same manner as if they have performed the wrongful act themselves.

The responsibility of two or more persons liable for quasi-delict is solidary (Article 2194 Civil Code); they are not liable pro rata, they are jointly and severally liable for the whole amount.

2. Motor vehicle mishaps The owner is solidarily liable with the driver, if the former, who was in the vehicle, could have, by the use of due diligence, prevented the misfortune. (Article 2184 Civil Code) Solidary liability is imposed on the owner not because of his imputed liability but because his own omission is a concurring proximate cause of the injury.

Vicarious Liability or Doctrine of Imputed Negligence A person is not only liable for torts committed by himself, but also for torts committed by others with whom he has a certain relation or for whom he is responsible. (Article 2180 Civil Code) Exercise of diligence of a good father of a family to prevent damage is a defense.

Doctrine of Respondeat Superior – the liability is strictly imputed, the employer is liable not because of his act or omission but because of the act or omission of the employee; employer cannot escape liability by claiming that he exercised due diligence in the selection or supervision of the employee.GENERAL RULE: Vicarious liability in the Philippines is not governed by the doctrine of respondeat superior; employers or parents are made liable not only because of the negligent or wrongful act of the person for whom they are responsible but also because of their own negligence:

1) Liability is imposed on the employer because he failed to exercise due diligence in the selection or supervision of the employee

2) Parents are made liable because they failed to exercise due diligenceEXCEPTION: Doctrine of respondeat superior is applicable in:1) liability of employers under Article 103 of the RPC2) liability of a partnership for the tort committed by a partner

Persons Vicariously Liable: (Article 2180 of the Civil Code) 1. The Father, or in case of death or incapacity, mother

For damage caused by:

a) minor children

b) living in their company

This has already been modified by Art. 221 of the Family Code to the extent that the alternative qualification of the liability of the father and the mother has been removed.

NOTES:

The basis of liability for the acts or omissions of their minor children is the parental authority that they exercise over them, except for children 18 to 21.

The same foreseability test of negligence should apply to parents when they are sought to be held liable under Art. 2180, NCC

The liability is not limited to parents, the same is also imposed on those exercising substitute and special parental authority, i.e., guardian.

The liability is present only both under Art 2180 of the NCC and Art 221 of the Family Code if the child is living in his parents’ company.

Parental authority is not the sole basis of liability. A teacher in charge is still liable for the acts of their students even if the minor student reaches the age of majority.

The parents or guardians can still be held liable even if the minor is already emancipated provided that he is below 21 years of age.

Parents and other persons exercising parental authority can escape liability by proving that they observed all the diligence of a good father of a family to prevent damages. (Art. 2180)

The burden of proof rests on the parents and persons exercising parental authority.

2. Guardians For damage caused bya. minors or incapacitated personsb. under their authorityc. living in their company

3. Owners and managers of establishments For damage caused by:

a) their employees

b) in the service of the branches in which they are employed, or

c) on the occasion of their functions

4. Employers For damages cause by:

a) employees and household helpers

b) acting within the scope of their assigned tasks

c) even if the employer is not engaged in any business or industry

NOTES:

Liability of the employer can be established by proving the existence of an employer-employee relationship with the actor and the latter caused the injury while performing his assigned task or functions. The vicarious liability attaches only when the tortuous conduct of the employees relates to or is in the course of his employment.

While the employer incurs no liability when an employee’s conduct, act or omission is beyond the range of employment, a minor deviation from the assigned task of an employee, however does not affect the liability of an employer. (Valenzuela vs. CA, 253 SCRA 303)

It is a defense that the employer exercised proper diligence in the selection and supervision of negligent employee.

5. State For damage caused by:

a) a special agent b)not when the damage has been caused by the official to whom the task done properly pertains

Public officers who are guilty of tortuous conduct are personally liable for their actions.

6. Schools, Teachers and Administrators For damage caused by:

a) pupils and students or apprentices b) in their custody

statutory basis: if student is minor – Art. 219, FC if student is no longer a minor – Art. 2180, Civil Code

NOTES:

Applies also to teachers of academic institutions. Liability attaches to the teacher-in-charge.

The school itself is now solidarily liable with the teacher-in-charge.

The liability extends to acts committed even outside the school so long as it is an official activity of the school.

Whenever the school or teacher is being made liable, the parents and those exercising substitute parental authority are not free from liability because Art. 219 of the Family Code expressly provides that they are subsidiarily liable.

Art. 2180 makes teachers and heads liable for acts of students and apprentices whether the latter are minors or not.

GENERAL RULE: The teacher-in-charge is liable for the acts of his students. The school and administrators are not liable.EXCEPTION: It is only the head of the school, not the teacher who is held liable where the injury is caused in a school of arts and trade.

The liability of the teacher subsists whether the school is academic or non- academic. Liability is imposed only if the pupil is already in the custody of the teacher or head. The student is in the

custody of the school authorities as longs as he is under the control and influence of the school and within its premises whether the semester had not yet begun or has already ended.

The victim of negligence is likewise required to exercise due care in avoiding injury to himself.

Other Persons Vicariously Liable:1. Innkeepers and Hotelkeepers

They are civilly liable for crimes committed in their establishments in cases of violations of statutes by them, in default of persons criminally liable. (Article 102 Revised Penal Code) They are subsidiarily liable for the restitution of goods taken by robbery or theft within their houses from guests lodging therein, or for payment of the value thereof, provided that:a. The innkeeper was notified in advance of the deposit of such goods within the inn; and b. The guest shall have followed the directions which such innkeeper or his representative may have given with respect to the care and vigilance over the goods.

2. Partnership Partnership or every partner is liable for torts committed by one of the partners acting within the scope of the firm business, though they do not participate in, ratify, or have knowledge of such torts. Partners are liable as joint tort-feasors. Vicarious liability is similar to the common law rule on respondeat superior. Liability is entirely imputed and the partnership cannot obviously invoke diligence in the selection and supervision of the partner.

3. Spousesa. absolute community of property The absolute community property shall be for liabilities incurred by either spouses by reason of crime or quasi-delict in case of absence or insufficiency of the exclusive property of the debtor-spouse. (Article 94 Family Code) Payments shall be considered advances to be deducted from the share of the debtor spouse upon liquidation of the community.b. conjugal partnership of gains

GENERAL RULE: Pecuniary indemni-ties imposed upon the husband or wife are not chargeable against the conjugal partnership but against the separate properties of the wrongdoer.EXCEPTION: Conjugal partnership should be made liable:1) When the profits have inured to the benefit of the partnership, or2) If one of the spouses committed the tort while performing a business or if the act was supposed to benefit the partnership.c. regime of separation of property Each spouse is responsible for his/her separate obligation.

A. STRICT LIABILITY When the person is made liable independent of fault or negligence upon submission of proof of certain facts specified by law.NOTE: Strict liability tort can be committed even if reasonable care was exercised and regardless of the state of mind of the actor at that time.

TYPES:

1. Animals

GENERAL RULE: The possessor of an animal or whoever may make use of the same is responsible for the damages which it may cause although it may escape or be lost. EXCEPTION: When the damage was caused by force majeure or by the person who suffered the damage. (Article 2183 Civil Code)

NOTES:

If the acts of a third person cannot be foreseen or prevented, then the situation is similar to that of force majeure and the possessor is not liable. (Francisco, Torts and Damages) Art. 2183 is applicable whether the animal is domestic, domesticated, or wild.

2. Falling objects The head of a family that lives in a building or a part thereof is responsible for damages caused by things thrown or falling from the same. (Article 2193 Civil Code)

The term “head of the family” is not limited to the owner of the building, and it may even include the lessee thereof. (Dingcong vs. Kanaan, 72 Phil 14)

3. Liability of employers

Article 1711 of the NCC imposes an obligation on owners of enterprises and other employers to pay for the death or injuries to their employees. Liability is strict because it exists even if the cause is purely accidental. If the mishap was due to the employee’s own notorious negligence, or voluntary act or drunkenness, the employer shall not be liable for compensation. When the employee’s lack of due care contributed to his death or injury, the compensation shall be equitably reduced. If the death or injury is due to the negligence of a fellow-workman the latter and the employer shall be solidarily liable for compensation. If a fellow-worker’s intentional or malicious act is the only cause of the death or injury, the employer shall not be answerable unless it should be shown that the latter did not exercise due diligence in the selection or supervision of the plaintiff’s fellow-worker.

4. Nuisance

Any act, omission, establishment, business, condition of property, or anything else which:

a. Injures or endangers the health or safety of others;

b. Annoys or offends the senses;

c. Shocks, defies or disregards decency or morality;

d. Obstructs or interferes with the free passage of any public highway or street, or any body of water; or

e. Hinders or impairs the user of property. (Article 694 Civil Code)

There is strict liability on the part of the owner or possessor of the property where a nuisance is found because he is obliged to abate the same irrespective of the presence or absence of fault or negligence.

Every successive owner or possessor of property who fails or refuses to abate a nuisance in that property started by a former owner or possessor is liable therefore in the same manner as the one who created it. (Article 686 Civil Code) 5. Product liability by manufacturers

Manufacturers and processors of foodstuffs, drinks, toilet articles and similar goods shall be liable for death or injuries caused by any noxious or harmful substances used, although no contractual relation exists. (Article 2187 Civil Code)

Other cases of liability without fault:1. Proprietor of a building or structure, for damages resulting from its total or partial collapse, if it should be due to lack of necessary repairs. . 2. Breach of implied warranties. 3. Consumer Act (R.A. 7394) – any Filipino or foreign manufacturer, producer and importer, independently of fault shall be liable for redress for damages caused to consumers by defects resulting from:

a. design; b. manufacture; c. construction; d. assembly and erection; e. formulas and handling and making up; or f. presentation or packing of their products as well as for the insufficient or inadequate information on the use and hazards thereof.

4. Even when an act or event causing damage to another’s property was not due to the fault or negligence of the defendant, the latter shall be liable for indemnity if through the act or event he was benefited. (Art. 23 Civil Code)

PRODUCT AND SERVICE LIABILITY

Alternative theories on basis of liability1. Fraud or misrepresentation Not all expression of opinion are actionable misrepresentations if they are established to be inaccurate.

2. Warranties The Consumer Act recognizes that the provisions of the Civil Code on conditions and warranties shall govern all contracts of sale with conditions and warranties. Retailer shall be subsidiarily liable under the warranty in case of failure of both the manufacturer and distributor to honor the warranty. Privity of contract is not necessary.

3. Negligence In product liability law, certain standards are already imposed by special laws, rules and regulations of proper government agencies; certain acts or omissions are expressly prohibited by the statutes thereby making violation thereof negligence per se. It is negligence per se if manufacturer manufactured products which do not comply with the safety standards promulgated by appropriate government agencies.

4. Delict The liability may be based on criminal negli-gence under the RPC or violation of any special law.

5. Strict liability Manufacturers and processors of foodstuffs, drinks, toilet articles, and similar goods, shall be liable for death or injuries caused by any noxious or harmful substances used although no contractual relation exists. (Article 2187 Civil Code)

Privity of contract is not required. It does not preclude an action based on negligence (quasi-delict) for the same act of using noxious or harmful substances.

Article 97 and 99 of the Consumer Act imposes liability on defective products and services upon manufacturers independent of fault. Knowledge of the manufacturer is not important; the focus is on the condition of the product and not on the conduct of the manufacturer or seller.

DEFENSES:A. The manufacturer, builder, producer, or importer shall not be liable when it evidences:

1) That it did not place the product on the market2) That although it did place the product on the market such product had no defect3) That the consumer of third party is solely at fault. (Article 97 Consumer Act)

B. The supplier of the services shall not be held liable when it is proven:1) That there is no defect in the service rendered2) That the consumer of third party is solely at fault. (Article 99 Consumer Act)

Requisites: The plaintiff should allege and prove that:1) The product was defective;2) The product was manufactured by the defendant;3) The defective product was the cause of his injury.

4 KINDS OF DEFECTIVE PRODUCTS1. manufacturing defect2. design defect3. presentation defect4. absence of appropriate warning

BUSINESS TORTS1. Interference of contracts Elements:

a. existence of a valid contractb. knowledge on the part of the third person of the existence of the contractc. interference of the third person without legal justification.

The existence of a contract is necessary and the breach must occur because of the alleged act of interference; No action can be maintained if the contract is void. Malice is not essential. Elements of privilege to interfere

1)The defendant’s purpose is a justifiable one, and2)The actors employ no means of fraud or deception which are regarded as unfair.

Extent of Liability:A. Rule in Daywalt vs. La Corporation 39PHIL587

Defendant cannot be held liable for more than the amount for which the contracting party who was induced to break the contract can be held liable.

B. Rule under Article 2201 and 2202 Civil Code1) If in bad faith: defendant is liable for all natural and probable consequences of his act or omission, whether the same is forseen or unforeseen.2) If in good faith: defandant is liable only for consequences that can be foreseen.

2. Interference with prospective advantage It is a tort committed when there is no contract yet and the defendant is only being sued for inducing another not to enter into a contract.

3. Unfair competition. Unfair Competition in agricultural, commercial, or industrial enterprises, or in labor, through the use of force, intimidation , deceit, machination or any unjust or oppressive or highhanded method shall give rise to a right of action by a person who thereby suffers damage. (Article 27 Civil Code) CASES INCLUDED:

a. passing off and disparagement of productsb. interferencec. misappropriationd. monopolies and predatory pricing

4. Securities Related Torts Kinds

a. Fraudulent Transactionsb. Misstatements or Omission of statement of a material fact required to be stated

Defendants are free from liability if they can prove that at the time of the acquisition the plaintiff knew of the untrue statement or if he was aware of the falsity. Extent of Damages: Not exceeding triple the amount of the transaction. Prescriptive Period: Action must be brought within 2 years after discovery of facts constituting the cause of action and within 5 yrs after such cause of action accrued.

II. DAMAGES

DAMAGE The detriment, injury or loss which are occasioned by reason of fault of another in the property or person.

DAMAGES The pecuniary compensation, recompense or satisfaction for an injury sustained or as otherwise expressed, the pecuniary consequences which the law imposes for the breach of some duty or violation of some rights.

DAMNUM ABSQUE INJURIA (Damage Without Injury)

A person may have suffered physical hurt or injury, but for as long as no legal injury or wrong has been done, there is no liability.

There is no liability even if there is damage because there was no injury.

There can be damage without injury.

In order that a plaintiff may maintain an action for the injuries of which he complains, he must establish that such injuries resulted from a breach of duty which the defendant owed to the plaintiff.

Injury Damage Damages

Legal invasion of a legal right

Loss, hurt or harm which results from the injury

The recom-pense or compensation awarded for the damage suffered

NOTES: A complaint for damages is a personal action. (Baritua vs. CA, 267 SCRA 331) Proof of pecuniary loss is necessary to successfully recover actual damages from the defendant. No proof of

pecuniary loss is necessary in case of moral, nominal, temperate, liquidated or exemplary damages. The assessment of such damages, except liquidated ones, is left to the discretion of the court according to the

circumstances of each case.

Kinds of damages (MANTLE)1. A ctual or Compensatory2. M oral3. N ominal4. T emperate or moderate5. L iquidated6. E xemplary or corrective

A. ACTUAL OR COMPENSATORY DAMAGES Comprehends not only the value of the loss suffered but also that of the profits which the obligee failed to

obtain. Classification:

1. Dano emergente – loss of what a person already possesses2. Lucro cessante – failure to receive as a benefit that would have pertained to himNOTE: The latter type includes:1. Loss or impairment of earning capacity in cases of temporary or permanent personal injury.2. Injury to the plaintiff’s business standing or commercial credit.

In crimes and quasi-delict, the defendant shall be liable for all damages which are the natural and probable consequences of the act and omission complained of. It is not necessary that such damages have been foreseen or could have reasonably foreseen by the defendant. (Article 2202 Civil Code)

The amount should be that which would put plaintiff in the same position as he would have been if he had not sustained the wrong for which he is now getting his compensation or reparation.

To recover damages, the amount of loss must not only be capable of proof but must actually be proven. Uncertainty as to the precise amount is not necessarily fatal.

LOSS OF EARNING CAPACITY: Variables considered are:

1. life expectancy 2. net income/earnings

Formula: {2/3 x (80–age of death)} x mo. Earnings x 12

2 NOTE: Life expectancy is computed as follows:

{ 2/3 x (80-age at death) } Net earnings is the total of the earnings less expenses necessary for the creation of such earnings and less

living or other incidental expenses.

Loss of profits May be determined by considering the average profit for the preceding years multiplied by the number of

years during which the business was affected by the wrongful act or breach.

Attorney’s fees They are actual damages. It is due to the plaintiff and not to the counsel. Plaintiff must allege the basis of his claim for attorney’s fees in the complaint; the basis should be one of the

11 cases specified in Article 2208 of the Civil Code.

Interests Award of interest in the concept of actual and compensatory damages actual damages. The rate of interest, as well as the accrual thereof is imposed as follows:

1. When the obligation is breached and it consist of payment of sum of money, i.e., a loan or forbearance of money:a. The interest due should be that which may have been stipulated in writing; furthermore, the interest

due shall itself earn legal interest from the time it is judicially demanded.b. In the absence of stipulation, the rate of interest shall be 12% per annum to be computed from

default, i.e., from judicial or extra-judicial demand under and subject to the provisions of Article 1169 of the Civil Code.

2. When the obligation, not constituting a loan or forbearance or money, is breached: An interest on the amount of damages to be awarded may be imposed at the discretion of the court

at the rate of 6% per annum. No interest shall be adjudged on unliquidated claims or damages, except when or until demand can

be established with reasonable certainty. Where the demand is established with reasonable certainty, the interest shall begin to run from the

time the claim is made judicially or extrajudicially.3. When the judgment of the court awarding the sum of money becomes final and executory, the rate of legal

interest shall be 12% per annum from such finality until its satisfaction.

Doctrine of Avoidable Consequences A party cannot recover damages flowing from consequences which the party could reasonably have avoided. It has a reasonable corollary: a person who reasonably attempts to minimize his damages can recover the

expenses that he incurred.

Doctrine of Avoidable

Consequences

Contributory Negligence

Acts of the plaintiff occur after the act or omission of the defendant

Plaintiff’s act or omission occurs before or at the time of the act or omission of the defendant

B. MORAL DAMAGES Includes physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings,

moral shock, social humiliation, and similar injury. No proof of pecuniary loss is necessary.GENERAL RULE: The plaintiff must allege and prove:

1. The factual basis for moral damages; and

2. Its causal relation to the defendant’s actEXCEPTION: Moral damages may be awarded to the victim in criminal proceedings without the need for pleading of proof of the basis thereof.

Requisites for award of moral damages:1. There must be an injury whether physical, mental or psychological, clearly sustained by the claimant;2. There must be a culpable act or omission.;3. Such act or omission is the proximate cause of the injury;4. The damages is predicated on the cases cited in Art.2219.

NOTE: The award of moral damages cannot be granted in favor of a corporation because, being an artificial person, it has no feelings, no emotions, no senses. It cannot therefore experience physical suffering and mental anguish which can be experienced only by one having a nervous system.

C. NOMINAL DAMAGES Nominal damages are adjudicated in order that a right of the plaintiff, which has been violated or invaded by

the defendant, may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him. (Article2221 Civil Code)

Small sums fixed by the court without regard to the extent of the harm done to the injured party. Law presumes damage although actual or compensatory damages are not proven. They are damages in name only and are allowed simply in recognition of a technical injury based on a violation

of a legal right. Nominal damages cannot co-exist with actual or compensatory damages.

D. TEMPERATE OR MODERATE DAMAGES These are damages, which are more than nominal but less than compensatory, and may be recovered when

the court finds that some pecuniary loss has been suffered but its amount cannot be proved with certainty. (Article 2224 Civil Code)

In cases where the resulting injury might be continuing and possible future complications directly arising from the injury, while certain to occur are difficult to predict, temperate damages can and should be awarded on top of actual or compensatory damages; in such cases there is no incompatibility between actual and temperate damages.

E. LIQUIDATED DAMAGES Those agreed upon by the parties in a contract, to be paid in case of breach thereof.

F. EXEMPLARY OR CORRECTIVE DAMAGES

Imposed by way of example or correction for the public good, in addition to the moral, temperate, liquidated or compensatory damages.

Requisites for the award of exemplary damages:

1. They are imposed by way of example in addition to compensatory damages and Imposed only after the claimants right to them has been established;2. They cannot be recovered as a matter of right, their determination depending upon the amount of compensatory damages that may be awarded;3. The act must be accompanied by bad faith or done in wanton, fraudulent, oppressive or malevolent manner.