Torts and Damages Beda

7/15/2019 Torts and Damages Beda

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San Beda College of Law Anthony Escasinas215

MEMORY AID IN CIVIL LAW

CIVIL LAW COMMITTEECHAIRPERSON:Romuald PadillaASST.CHAIRPERSON: Vida Bocar, Joyce VidadEDP: Alnaiza Hassiman, Dorothy GayonSUBJECT HEADS:Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. RhodoraFerrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John StephenQuiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD),Ma. Ricasion Tugadi (Conflicts of Law)

TORTS AND DAMAGES

I. TORTS

TORT An unlawful violation of privateright, not created by contract, and whichgives rise to an action for damages. It is an act or omission producing aninjury to another, without any previousexisting lawful relation of which the saidact or omission may be said to be anatural outgrowth or incident.

NOTES:

An unborn child is NOT entitled todamages. But the bereaved parents maybe entitled to damages, on damagesinflicted directly upon them. (Geluz vs.CA, 2 SCRA 802)

Defendants in tort cases can eitherbe natural or artificial being.Corporations are civilly liable in thesame manner as natural persons.

Any person who has been injured byreason of a tortious conduct can sue thetortfeasor.

The primary purpose of a tort actionis to provide compensation to a personwho was injured by the tortious conductof the defendant.

Preventive remedy is available insome cases.

Classes of Torts:

A. Negligent TortsB. Intentional TortsC. Strict Liability

A. NEGLIGENT TORTS

Involve voluntary acts or omissionswhich result in injury to others withoutintending to cause the same or becausethe actor fails to exercise due care inperforming such acts or omissions.

NEGLIGENCE The omission of that degree ofdiligence which is required by the natureof the obligation and corresponding tothe circumstances of persons, time andplace. (Article 1173 Civil Code)

Kinds of Negligence:1. Culpa Contractual (contractualnegligence) Governed by CC provisions onObligations and Contracts, particularly

Arts. 1170 to 1174 of the Civil Code.

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

3. Culpa Criminal (criminal negligence) Governed by Art. 365 of the RevisedPenal Code.

NOTES:

The 3 kinds of negligence furnishseparate, distinct, and independentbases of liability or causes of action.

A single act or omission may give riseto two or more causes of action.

Culpa Contractual Culpa AquilianaThe foundation ofthe liability of thedefendant

is the contract

It is a separatesource of obligationindependent of

contract

In breach of contractcommitted throughthe negligence ofemployee, theemployer cannoterase his primary anddirect liability byinvoking exercise ofdiligence of a goodfather of a family inthe selection andsupervision of the

In quasi-delict thepresumptiveresponsibility for thenegligence of hisservants can berebutted by proof ofthe exercise of duecare in theirselection andsupervision.


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employee.

Culpa Aquiliana CrimeOnly involves privateconcern

Affect the publicinterest

The Civil Code bymeans of indem-nification merelyrepairs the damage

The Revised PenalCode punishes orcorrects criminal act

Includes all acts inwhich any kind offault or negligenceintervenes

Punished only ifthere is a penal lawclearly covering them

Liability is direct andprimary in quasi-delict

Liability of theemployer of theactor-employee issubsidiary in crimes

QUASI-DELICT

Whoever by act or omission causes

damage to another, there being fault ornegligence is obliged to pay for thedamage done. (Article 2176 Civil Code)

Essential Requisites for a quasi-delictual action:

1. Act or omission constituting fault ornegligence;

2. Damage caused by the said act or

omission; and3. Causal relation between the damage

and the act or omission.

Tests of Negligence1. Did the defendant in doing the

alleged negligent act use thereasonable care and caution whichan ordinarily prudent person wouldhave used in the same situation?

If not then he is guilty ofnegligence.

2. Could a prudent man, in the caseunder consideration, foresee harm asa 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 - thedetermination of the existence ofnegligence is concerned with what thedefendant did or did not do

The state of mind of the actor isnot important; good faith or use ofsound judgment is immaterial. Theexistence of negligence in a givencase is not determined by referenceto the personal judgment but by the

behavior of the actor in the situationbefore him. (Picart vs. Smith)

Negligence is a conduct that createsan undue risk of harm to others.

The determination of negligence is aquestion of foresight on the part of theactor FORESEABILITY. Even if a particular injury was notforeseeable, the risk is still foreseeableif possibility of injury is foreseeable. Forseeability involves the question ofPROBABILITY, that is, the existence ofsome real likelihood of some damage andthe likelihood is of such appreciableweight reasonably to induce, action toavoid it.

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

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

Emergency ruleGENERAL RULE: An individual whosuddenly finds himself in a situationof danger and is required to actwithout much time to consider thebest means that may be adopted toavoid the impending danger is notguilty of negligence if he fails to


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undertake what subsequently andupon reflection may appear to be abetter solution.EXCEPTION: When the emergency

was brought by the individuals ownnegligence. (Valenzuela vs. CA 253SCRA 303).

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

If the alternative presented tothe actor is too costly, the harmthat may result may be still beconsidered unforeseeable to areasonable man.

6. Social value or utility of activity7. Person exposed to the risk

GOOD FATHER OF A FAMILY (paterfamilias):- this is the standard of conduct used inthe Philippines- a man of ordinary intelligence andprudence or an ordinary reasonableprudent mana reasonable man deemed to haveknowledge of the facts that a man shouldbe expected to know based on ordinaryhuman experience. (PNR vs IAC, 217SCRA 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 notnecessarily be judged according to thestandard of an adult. But if the minor ismature enough to understand andappreciate the nature and consequenceof his actions, he will be considerednegligent if he fails to exercise due careand precaution in the commission of suchacts.

NOTES:

The law fixes no arbitrary age atwhich a minor can be said to have thenecessary capacity to understand andappreciate the nature and consequenceof his acts. (Taylor vs. Meralco, 16 Phil8)

Applying the provisions of theRevised Penal Code, Judge Sangco takesthe view that a child who is 9 or below is

conclusively presumed to be incapable of

negligence. In the other hand, if thechild is above 9 years but below 15,there is a disputable presumption ofabsence of negligence.

Absence of negligence does notnecessarily mean absence of liability.

Liability without fault: a child under9 years can still be subsidiarily liablewith his property (Art. 100, RPC)

Absence of negligence of the childmay not excuse the parents from theirvicarious liability under Art. 2180 NCC orArt. 221 FC.

2. Physical Disability Mere weakness of a person will notbe an excuse in negligence cases.

However if defect amounts to a realdisability the standard of conduct is thatof a reasonable person under likedisability.

3. Experts and professionals They should exhibit the care and skillof one who is ordinarily skilled in theparticular field that he is in. When a person holds himself out asbeing competent to do things requiringprofessional skill, he will be held liablefor negligence if he fails to exhibit thecare and skill of one ordinarily skilled inthe particular work which he attempts todo. An expert will not be judged basedon what a non-expert can foresee. The rule regarding experts isapplicable not only to professionals whohave undergone formal education.

4. Nature of activity There are activities which by natureimpose duties to exercise a higher

degree of diligence.Examples:a. Banks, by the very nature of theirwork, are expected to exercise thehighest degree of diligence in theselection and supervision of theiremployees.b. Common carriers are required toexercise extraordinary diligence in thevigilance over their passengers andtransported goods. (Article 1733 CivilCode).

5. Intoxication


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GENERAL RULE: Mere intoxication isnot negligence, nor does the mere factof intoxication establish want of ordinarycare. But it may be one of the

circumstances to be considered to provenegligence.EXCEPTION: Under Art. 2185 of theCivil Code, it is presumed that a persondriving a motor vehicle has beennegligent if at the time of the mishap,he was violating any traffic regulation.

6. Insanity The insanity of a person does notexcuse him or his guardian from liabilitybased on quasi-delict. Bases for holding an insane person

liable for his tort:a. Where one of two innocent personsmust suffer a loss, it should be borne bythe one who occasioned it.b. To induce those interested in theestate of the insane person to restrainand control him.c. The fear that an insanity wouldlead to false claims of insanity and avoidliability.

7. Women In determining the question of

contributory negligence in performingsuch act, the age, sex, and condition ofthe passengers are circumstancesnecessarily affecting the safety of thepassenger, and should be considered.(Cangco vs. Manila Railroad Co. GRNo.12191, October 14, 1918) Although there is no unequivocalstatement of the rule, Valenzuela vs. CA253SCRA303 appears to require adifferent standard of care for womenunder the circumstances indicatedtherein. However, Dean Guido Calabresibelieves that there should be a uniformstandard between a men and a women.

Other Factors to Consider inDetermining Negligence:A. VIOLATION OF RULES ANDSTATUTES1. StatutesGENERAL RULE: Violation of astatutory duty is NEGLIGENCE PER SE(Cipriano vs. CA, 263SCRA711). When the

Legislature has spoken, the standard of

care required is no longer what areasonably prudent man would do underthe circumstances but what theLegislature has commanded.

EXCEPTIONS:a. When unusual conditions occur andstrict observance may defeat thepurpose of the rule and may evenlead to adverse results.

b. When the statute expresslyprovides that violation of astatutory duty merely establishes apresumption of negligence.

NOTE: Rule as to proof of proximatecauseGENERAL RULE: Plaintiff must show

that the violation of the statute is theproximate or legal cause of the injuryor that it substantially contributedthereto. (Sanitary Steam Laundry, Inc.vs. CA 300SCRA20)EXCEPTION: In cases where thedamage to the plaintiff is the damagesought to be prevented by the statute.In such cases, proof of violation ofstatute and damage to the plaintiffmay itself establish proximate cause.(Teague vs. Fernandez 51SCRA181).

2. Administrative Rule Violation of a rule promulgated byadministrative agencies is not negligenceper se but may be EVIDENCE OFNEGLIGENCE.

3. Private Rules of Conduct. Violation of rules imposed byprivate individuals (e.g. employers) ismerely a POSSIBLE EVIDENCE OFNEGLIGENCE.

B. PRACTICE AND CUSTOM Compliance with the practice andcustom in a community will notautomatically result in a finding that theactor is not guilty of negligence. Non-compliance with the practice or customin the community does not necessarilymean that the actor was negligent. In Yamada vs. Manila Railroad Co.,the owner of an automobile struck by atrain while crossing the tracks sought toestablish absence of negligence of itsdriver by evidence of a custom of

automobile drivers of Manila by which


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they habitually drove their cars over therailroad crossings without slackeningspeed. The SC rejected the argument byruling that: a practice which is dangerous

to human life cannot ripen into customwhich will protect anyone who follows it.

C. COMPLIANCE WITH STATUTES Compliance with a statute is notconclusive that there was no negligence. Example: A defendant can still beheld liable for negligence even if he canestablish that he was driving below thespeed limit. Compliance with the speedlimit is not conclusive that he was notnegligently driving his car.

Gross Negligence - Negligence wherethere is want of even slight care anddiligence.

PROOF OF NEGLIGENCEGENERAL RULE: If the plaintiff alleged in hiscomplaint that he was damaged becauseof the negligent acts of the defendant,theplaintiff has the burden of proving

such negligence. (Taylor vs. MERALCO16Phil8) The quantum of proof required ispreponderance of evidence. (Rule 133Revised Rules of Court)EXCEPTIONS: Exceptional cases whenthe rules or the law provides for caseswhen negligence is presumed.A. Presumptions of NegligenceB. Res Ipsa Loquitur

A. Presumptions of Negligence

1. In motor vehicle mishaps, the owneris presumed negligent if he was in thevehicle and he could have used duediligence to prevent the misfortune.(Article 2184 Civil Code)2. It is disputably presumed that adriver was negligent if he had beenfound guilty of reckless driving orviolating traffic regulations at leasttwice for the next preceding twomonths. (Article 2184 Civil Code)

3. The driver of a motor vehicle ispresumed negligent if at the time of themishap, he was violating any trafficregulation. (Article 2185 Civil Code)

4. GENERAL RULE: Prima faciepresumption of negligence of thedefendant arises if death or injuryresults from his possession of dangerousweapons or substance.EXCEPTION: When such possession oruse is indispensable to his occupation orbusiness. (Article 2188 Civil Code)5. GENERAL RULE: Presumption ofnegligence of the common carrier arisesin case of loss, destruction ordeterioration ofthe goods, or in case ofdeath or injury of passengers.

EXCEPTION: Upon proof of exercise ofextraordinary diligence.

B. Res Ipsa Loquitur

The thing or transaction speaks foritself. It is a rule of evidence peculiar tothe law of negligence which recognizesthat prima facie negligence may beestablished in the absence of direct

proof, and furnishes a substitute forspecific proof of negligence.

Requisites of Res Ipsa Loquitor:

1. The accident was of a kind whichordinarily does not occur in theabsence of someones negligence;

2. The instrumentality which causedthe injury was under the exclusivecontrol and management of theperson charged with negligence; and

3. The injury suffered must not havebeen due to any voluntary action orcontribution on the part of theperson injured; absence ofexplanation by the defendant.


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In Africa vs. Caltex (Phil.) Inc. Mar31, 1966, defendant Caltex was liable for

damage done to the property of itsneighbors when fire broke out in a Caltexservice station. The gasoline station,with all its appliances, equipment andemployees, was under the control of thedefendant. The persons who knew howthe fire started were the defendant andits employees, but they gave noexplanation whatsoever. The doctrine is not applicable ifthere is direct proof of absence orpresence of negligence. (S.D. Martinez,et al vs. William Van Buskirk)

AFFIRMATIVE DUTIES ANDMISCELLANEOUS ACTIVITIES:1. Duty to RescueA. Duty to the rescuer The defendants are liable for theinjuries to persons who rescue people indistress because of the acts or omissionsof the said defendants. There is liability to the rescuerand the law does not discriminate

between the rescuer oblivious to theperil and the one who counts the costs. The risk of rescue, if only notwanton, is born of the occasion. One who was hurt trying torescue another who was injured throughnegligence may recover damages.(Santiago vs. De leon CA-GR No.16180-RMarch 21, 1960) Danger of personal injury ordeath.

B. Duty to rescueGENERAL RULE: There is no generalduty to rescue; a person is not liable forquasi-delict even if he did not help aperson in distress.EXCEPTIONS: A limited duty to rescueis imposed in certain cases:Abandonment of persons in danger andabandonment of ones own victim isconsidered, under certain circumstances

as a crime against security (Article 275RPC); andNo driver of a motor vehicle concernedin a vehicular accident shall leave the

scene of the accident without aiding thevictim unless he is excused from doingso. (Section 55 RA 4136 [LandTransportation and traffic Code])

2. Owners, Proprietors and Possessorsof PropertyGENERAL RULE: The owner has no dutyto take reasonable care towards atrespasser for his protection or even toprotect him from concealed danger.NOTE: Damage to any person resultingfrom 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 theplaintiff is inside his property bytolerance or by implied permission. Owners of buildings or premisesowe duty of care to visitors.

b. Doctrine of Attractive Nuisance One who maintains on hispremises dangerous instrumentalities

or appliances of a character likely toattract children in play, and whofails to exercise ordinary care toprevent children from playingtherewith or resorting thereto, isliable to a child of tender years whois injured thereby, even if the childis technically a trespasser in thepremises.NOTE: A swimming pool or pond orreservoir of water is NOT consideredattractive nuisance. (HidalgoEnterprises vs. Baladan 91 Phil 488)

c. State of Necessity The owner of a thing has no rightto prohibit the interference ofanother with the same if theinterference is necessary to avertimminent danger and the threateneddamage, compared to the damagearising to the owner from theinterference, is much greater.(Article 432 Civil Code) It is also a recognized justifyingcircumstance under the RPC.


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In both the Civil Code and theRPC, the owner may demand fromthe person benefited, indemnity forthe damages.

Use of properties that injures another An owner cannot use his property insuch a manner as to injure the rights ofothers. (Article 431 Civil Code). Hence the exercise of the right ofthe owner may give rise to an actionbased on quasi-delict if the ownernegligently exercises such right to theprejudice of another.

Liability of Proprietors of buildings New Civil Code include provisions

that apply to proprietors of a building orstructure which involve affirmative dutyof due care in maintaining the same:Articles 2190 and 2191. Third persons who suffered damagesmay proceed only against the engineer orarchitect or contractor if the damagereferred to in Articles 2190 and2191should be a result of any defect inconstruction. Nevertheless, actions for damagescan still be maintained under Article2176 for damages resulting from

proprietors failure to exercise due carein the maintenance of his building andthat he used his property in such a waythat he injured the property of another.

3. Employers and EmployeesA. Employers Actions for quasi-delict can still be

maintained even if employeescompensation is provided for underthe Labor Code.

In quasi-delictual actions against theemployer, the employee may use theprovisions of the Labor Code whichimposes upon the employer certainduties with respect to the propermaintenance of the work place orthe provisions of adequate facilitiesto ensure the safety of theemployees.

Articles 1711 and 1712 of the CivilCode impose liability without faulton the part of the employers.

B. Employees

Employees are bound to exercise duecare in the performance of theirfunctions for the employers; absencesuch due care, the employee may be

held liable.

4. Banks The business of banks is one affectedby public interest. Because of thenature of its functions, a bank is underobligation to treat the accounts of itsdepositors with meticulous care, alwayshaving in mind the fiduciary nature oftheir relationship. (PBC vs. CA [1997])

5. Common carriers From the nature of their business

and for reasons of public policy, they arebound to exercise extraordinarydiligence in the vigilance over the goodsand the safety of the passengers. The case against the common carrieris for the enforcement of an obligationarising from breach of contract. The same act which breached thecontract may give rise to an action basedon quasi delict. (Air France vsCarrascoso, L21438, Sept. 28, 1996)

6. Doctors

A. STANDARD OF CARE The proper standard is whether,the physician if a general practitioner,has exercised the degree of care andskill of the average qualifiedpractitioner, taking into account theadvances in the profession. A physician who holds himself outas a specialist should be held to thestandard of care and skill of the averagemember of the profession practicing thespecialty, taking into account theadvances in the profession.

B. THE CAPTAIN OF THE SHIP DOCTRINE The head surgeon is made liablefor everything that goes wrong withinthe four corners of the operating room. It enunciates the liability of thesurgeon not only for the wrongful acts ofthose under his physical control but alsothose wherein he has extension ofcontrol.C. NOT WARRANTORS


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Physicians are not warrantors ofcures or insurers against personal injuriesor death of the patient.

D. PROOF Expert testimonyshould be offeredto prove that the circumstances areconstitutive of conduct falling below thestandard of care employed by otherphysicians in good standing whenperforming the same operation. Medical malpractice can also beestablished by relying on the doctrine ofres ipsa loquitor; in which case the needof expert testimony is dispensed withbecause the injury itself provides theproof of negligence. (Ramos vs. CA, GR

No.124354, December 29, 1999) Example: The doctrine was appliedin a case of removal of the wrong part ofthe body when another part wasintended.

Two pronged evidence:a. Evidence as to the recognized

standards of the medical communityin the particular kind of case; and

b. A showing that the physiciandeparted from this standard in histreatment.

Four elements in medicalnegligence cases: duty, breach, injuryand proximate causation

E. LIABILITY OF HOSPITALS ANDCONSULTANTS There is no employer-employeerelationship between the hospital and aphysician admitted in the said hospitalsmedical staff as an active or visitingconsultant which would hold thehospital liable solidarily liable for theinjury suffered by a patient under Article2180 of the Civil Code. (Ramos vs. CA GRNo 124354, April 11, 2002) The contract between theconsultant and the patient is separateand distinct the contract between thehospital and the patient. Thefirst hasfor its object the rendition of medicalservices by the consultant to the patient,while the secondconcerns the provisionby the hospital of facilities and servicesby its staff such as nurses and laboratorypersonnel necessary for the proper

treatment of the patient. (Ramos vs. CAGR No 124354, April 11, 2002)

7. Lawyers

An attorney is not bound to exerciseextraordinary diligence but only areasonable degree of care and skill,having reference to the business heundertakes 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 proximatecause of his injury, he cannotrecover damages. (Article 2179Civil Code)

b. Contributory negligence Conduct on the part of the injured

party contributing as a legal causeto the harm he has suffered whichfalls below the standard to which

he is required to conform for hisown protection. (Valenzuela vs. CA253SCRA303)

If the plaintiffs negligence wasonly contributory, the immediateand proximate cause of the injurybeing the defendants lack of duecare, the plaintiff may recoverdamages but the courts shallmitigate the damages to beawarded (Article 2179 Civil Code).

Doctrine of ComparativeNegligence

The relative degree ofnegligence of the parties isconsidered in determining whetherand to what degree, either shouldbe responsible for his negligence(apportionment of damages).

This is the doctrine beingapplied in our jurisdiction whereinthe contributory negligence of theplaintiff does not completely barrecovery but merely results inmitigation of liability; it is a partial

defense.


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The court is free todetermine the extent of themitigation of the defendantsliability depending upon the

circumstances.

2. IMPUTED CONTRIBUTORYNEGLIGENCE

Negligence is imputed if the actor isdifferent from the person who isbeing made liable.

The defendant will be subject tomitigated liability even if theplaintiff was not himself personallynegligent but because the negligenceof another is imputed to theplaintiff.

It is applicable if the negligence wason the part of the person for whomthe plaintiff is responsible, andespecially, by negligence of anassociate in the transaction where hewas injured.

3. FORTUITOUS EVENTS Essential requisites:

a. The cause of the unforeseen andunexpected occurrence, or of thefailure of the debtor to complywith his obligation, must be

independent of the human will;b. It must be impossible to foresee

the event which constitutes thecaso fortuito, or if it can beforeseen, it must be impossible toavoid;

c. The occurrence must be such as torender it impossible for the debtorto fulfill his obligation in a normalmanner; and

d. The obligor must be free from anyparticipation in the aggravation ofthe injury resulting to the creditor.

NOTE: When an act of God concurswith the negligence of defendant toproduce an injury, the defendant isliable if the injury would not haveresulted but for his own negligentconduct or omission. The wholeoccurrence is humanized and removedfrom the rules applicable to acts ofGod. (NAPOCOR vs. CA [1993])GENERAL RULE: It is a completedefense and a person is not liable ifthe cause of the damage is a fortuitous

event.

EXCEPTION: It is merely a partialdefense and the courts may mitigatethe damages if the loss would haveresulted in any event (Art. 2215(4)

Civil Code).

4. ASSUMPTION OF RISK

Volenti non fit injuria: One is notlegally injured if he has consented to theact complained of or was willing that itshould occur. It is a complete defense. Elements:

a. The plaintiff must know that therisk is present;b. He must further understand itsnature; and thatc. His choice to incur it is free andvoluntary.

KINDS:

a. Express waiver of the right torecover

There is assumption of risk if theplaintiff, in advance has expressly

waived his right to recover damages forthe negligent act of the defendant.

NOTE: A person cannot contract away hisright to recover damages resulting fromnegligence. Such waiver is contrary topublic policy and cannot be allowed.However, the waiver contemplated bythis prohibition is the waiver of the rightto recover before the negligent act wascommitted.

If waiver was made after the causeof action accrued, the waiver is valid andmay be construed as a condonation ofthe obligation.

b. Implied Assumptions

i. Dangerous Conditions


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A person who, knowing that heis exposed to a dangerous conditionvoluntarily assumes the risk of suchdangerous condition may not recover

from the defendant who maintainedsuch dangerous conditions. Example: A person who main-tained his house near a railroad trackassumes the usual dangers attendantto the opera-tion of a locomotive.(Rodrigueza vs. Manila Railroad Co.,GR No. 15688, Nov. 19, 1921).

ii. Contractual Relations There may be impliedassumption of risk if the plaintiffentered into a contractual relationwith the defendant. By entering intoa relationship freely and voluntarilywhere the negligence of thedefendant is obvious, the plaintiffmay be found to accept and consentto it. EXAMPLES:

a) The employees assume theordinary risks inherent in theindustry in which he is employed.

- As to abnormal risks, theremust be cogent and convincingevidence of consent.

b) When a passenger boards acommon carrier, he takes the risksincidental to the mode of travel hehas taken.

iii. Dangerous Activities Persons who voluntarilyparticipate in dangerous activitiesassume the risks which are usuallypresent in such activities. EXAMPLE: A professionalathlete is deemed to assume therisks of injury to their trade.

iv. Defendants negligence When the plaintiff is aware ofthe risk created by the defendantsnegligence, yet he voluntarily

decided to proceed to encounter it,there is an implied admission. EXAMPLE: If the plaintiff hasbeen supplied with a product which

he knows to be unsafe, he is deemedto have assumed the risk of usingsuch unsafe product.

5. DEATH OF THE DEFENDANT Death of the defendant does notextinguish the obligation based on quasi-delict. An action survives even if thedefendant dies during the pendency ofthe case if the case is an action torecover for an injury to persons orproperty by reason of tort committed bythe deceased. It is no defense at all.

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

Relations Back Doctrine An act done at one time is

considered by fiction of law to havebeen done at some antecedentperiod. (Allied Banking Corp vs. CA,1989)

EXAMPLE: A doctor negligentlytransfused blood to a patient thatwas contaminated with HIV. If theeffect became apparent only afterfive (5) years, the four (4) yearprescriptive period should commenceonly when it was discovered.

7. INVOLUNTARINESS

It is a complete defense in quasi-delict cases and the defendant istherefore not liable if force was exertedon him. (Aquino, Torts and Damages) EXAMPLE: When the defendant wasforced to drive his vehicle by armedmen. He was, at pain of death, forced todrive at a very fast clip because thearmed men were escaping from the

policemen. The defendant cannot be


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held liable, if a bystander is hit as aconsequence.

CAUSATION

Proximate Cause That cause which in natural andcontinuous sequence, unbroken by anyefficient intervening cause, produces theinjury, without which the result wouldnot have occurred.

Remote Cause That cause which some independentforce merely took advantage of toaccomplish something not the naturaleffect thereof.

Nearest Cause

That cause which is the last link inthe chain of events; the nearest in pointof time or relation.

Proximate cause is not necessarilythe nearest cause but that which is theprocuring efficient and predominantcause.Concurrent Causes

The actor is liable even if the activeand substantially simultaneous operationof the effects of a third personsinnocent, tortious or criminal act is alsoa substantial factor in bringing about theharm so long as the actors negligentconduct actively and continuouslyoperate to bring about harm to another.(Africa vs. Caltex)

Where several causes producing theinjury are concurrent and each is anefficient cause without which the injurywould not have happened, the injury

may be attributed to all or any of thecauses and recovery may be had againstany or all of the responsible persons.

Where the concurrent or successivenegligent acts or omissions of two ormore persons, although actingindependently, are in combination thedirect and proximate cause of a singleinjury to a third person, and it isimpossible to determine what proportioneach contributed to the injury, either ofthem is responsible for the whole injury,

even though his act alone might not have

caused the entire injury; they becomejoint tort-feasors and are solidarily liablefor the resulting damage under Article2194 of the Civil Code.

NOTE: Primary cause remains theproximate cause even if there is anintervening cause which merelycooperated with the primary cause andwhich did not break the chain ofcausation.

Tests of Proximate Cause Two-part test1. Cause-in-fact Test2. Policy TestNOTE: In determining the proximatecause of the injury, it is first necessaryto determine if the defendantsnegligence was the cause-in-fact of thedamage to the plaintiff. (Cause-in-facttest)

If the defendants negligencewas not the cause-in-fact, theinquiry stops.

If it is, the inquiry shifts to thequestion of limit of the defendantsliability. (Policy test)

CAUSE-IN-FACT TESTS:1. But-For Test The defendants conduct is thecause-in-fact if damage would not haveresulted had there been no negligenceon the part of the defendant.Conversely, defendants negligentconduct is not the cause in fact of theplaintiffs damage if the accident couldnot have been avoided in the absencethereof.

2. Substantial Factor test The conduct is the cause-in-fact ofthe damage if it was a substantial factorin producing the injuries. In order to be a substantial factor inproducing the harm, the causes set inmotion by the defendant must continueuntil the moment of the damage or atleast down the setting in motion of thefinal active injurious force which


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immediately produced or preceded thedamage.NOTE: If the defendants conduct wasalready determined to be the cause in

fact of the plaintiffs damage under thebut for test, it is necessarily the cause infact of the damage under the substantialfactortest.

3. NESS Test The candidate condition may still betermed as a cause where it is shown tobe a necessary element in just one ofseveral co-present causal set eachindependently sufficient for the effect.

Two ways by which co-presence may

manifest itself:a. Duplicative causation When two or more sets operatesimultaneously to produce theeffect; the effect is over-determined.b. Pre-emptive causation When, though coming about firstin time, one causal set trumpsanother potential set lurking in thebackground; the causal potency ofthe latter is frustrated.

Multiple causation If there are a number of candidateconditions, which, taken one at a time,would not in fact have been sufficient tocause the accident and the accident wasa cumulative effect of all the candidateconditions.

Policy Tests:1. Foreseeability Test2. 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 TwoGroups:1. FORESIGHT PERSPECTIVE/FORESEEABILITY TESTS The defendant is not liable for theunforeseeable consequences of his acts Liability is limited within the risk

created by defendants negligent acts.

2. DIRECT PERSEPECTIVE/ DIRECTCOSEQUENCES TESTS The defendant is liable for damages

which are beyond the risk. Direct consequences are those whichfollow in sequence from the effect ofdefendants act upon conditions existingand forces already in operation at thetime without intervention of anyexternal forces, which come into activeoperation later.

Tests applied in the Philippines:

New Civil Code has a chapter onDamages which specifies the kind ofdamage for which the defendant may be

held liable and the extent of damage tobe awarded to the plaintiff.

Cause-in-fact Tests:1. But-for test2. Substantial Factor test3. NESS test

Policy test: The directness approachis being applied in this jurisdiction.

NOTE: The definition of proximate causewhich includes the element of foresightis not consistent with the expressprovision of the Article 2202 of the NewCivil Code; a person may be held liablewhether the damage to the plaintiff maybe unforeseen.Cause and Conditions It is no longer practicable todistinguish between cause andcondition. The defendant may be liable even ifonly created conditions, if the conditionsresulted in harm to either person orproperty. EXAMPLES ofDangerous Conditions:

1.

Those that are inherentlydangerous2. Those where a person places athing which is not dangerous in itself in adangerous position.3. Those involving products andother things which are dangerousbecause they are defective.

Efficient Intervening Cause One which destroys the causalconnection between the negligent actand the injury and thereby negatives

liability.


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There is NO efficient interveningcause if the force created by thenegligent act or omission have either:

1. Remained active itself, or

2. Created another force whichremained active until it directlycaused the result, or3. Created a new active risk ofbeing acted upon by the active forcethat caused the result.

EXAMPLE: The medical findings, showthat the infection of the wound bytetanus was an efficient interveningcause later or between the time Javierwas wounded to the time of his death.(People vs. Rellin 77 Phil 1038)

NOTES: A cause is not an intervening cause ifit was already in operation at the timethe negligent act is committed.

Foreseeable intervening causescannot be considered sufficientintervening causes.

The intervention of unforeseen andunexpected cause is not sufficient torelieve the wrongdoer fromconsequences of negligence if suchnegligence directly and proximatelycooperates with the independent causein the resulting injury.

CONTRIBUTORY NEGLIGENCEA. Plaintiffs negligence is the cause

Plaintiffs negligence is notcontributory if it is necessary andsufficient to produce the result.

EXAMPLES:1. Only the plaintiff was negligent.2. Defendants negligence is not apart of the causal set which is a part ofthe causal chain.

3. Plaintiffs negligence was pre-emptive in nature.

B. Compound Causes

Plaintiffs negligence may haveduplicative effect, that it, it is sufficientto bring about the effect but hisnegligence occurs simultaneously withthe defendant; the latters negligence isequally sufficient but not necessary tobring about the effect because damagewould still have resulted due to thenegligence of the plaintiff.

Plaintiffs negligence is not merelycontributory because it is a concurringproximate cause.

No recovery can be had. (Aquino,

Torts and Damages)

C. Part of the same causal set

Neither plaintiffs negligence nordefendants negligence alone issufficient to cause the injury; the effectwould result only if both are presenttogether with normal backgroundconditions.

Negligence of the plaintiffcooperated with the negligence of thedefendant in order to bring about theinjury; determination of proximate causeis only a matter of degree ofparticipation.

D. Defendants Negligence is the Onlycause

Defendants negligence wassufficient AND necessaryto bring aboutthe injury.

However, if plaintiffs negligenceincreased or aggravated the resultingdamage or injury liability of thedefendant should also be mitigated

under contributory negligence rule orunder the doctrine of avoidableconsequences.Doctrine of Last Clear Chance orDiscovered Peril The negligence of the plaintiff doesnot preclude a recovery for thenegligence of the defendant where itappears that the defendant, byexercising reasonable care andprudence, might have avoided injuriousconsequences to the plaintiffnotwithstanding the plaintiffs

negligence.

Alternative Views:1. Prevailing view

Doctrine is applicable in thisjurisdiction.

Even if plaintiff was guilty ofantecedent negligence, the defendant isstill liable because he had the last clearchance of avoiding the injury.

2. Minority View


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The historical function of thedoctrine was to mitigate the harshness ofthe common law rule of contributorynegligence which prevented any recovery

at all by the plaintiff who was alsonegligent even if his negligence wasrelatively minor as compared with thewrongful act or omission of thedefendant.

The doctrine has no role in thisjurisdiction where common law conceptof contributory negligence has itselfbeen rejected in Article 2179 of the CivilCode.

3. Third View

There can be no conflict between

the doctrine of last clear chance anddoctrine of comparative negligence ifthe former is viewed as a rule or phraseof proximate cause;

However, the doctrine of last clearchance is no longer applicable if theforce created by the plaintiffsnegligence continues until the happeningof the injurious event.

Cases when the doctrine was heldinapplicable (PICCA)

1.

If the plaintiff was not negligent.2. The party charged is required to actinstantaneously, and if the injury cannotbe avoided by the application of all themeans at hand after the peril is or shouldhave been discovered.3. If defendants negligence is aconcurrent cause and which was still inoperation up to the time the injury wasinflicted.4. Where the plaintiff, a passenger,filed an action against a carrier based oncontract.

5. If the actor, though negligent, wasnot aware of the danger or risk broughtabout by the prior fraud or negligent act.

B. INTENTIONAL TORTS Include conduct where the actordesires to cause the consequences of hisact or believes that the consequencesare substantially certain to result fromit.

They are found in Chapter 2 of thePreliminary Title of the NCC entitledHuman Relations. Although thischapter covers negligent acts, the torts

mentioned herein are mostly intentionalin nature or torts involving malice or badfaith.

HUMAN RELATIONS

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

Elements:

a. Legal right or duty;b. The right or duty is exercised inbad faith; andc. For the sole intent of prejudicingor injuring another.

EXAMPLE: If the principalunreasonably terminated an agencyagreement for selfish reasons.(Valenzuela vs. CA, 190 SCRA 1)NOTE: This rule is a departure from thetraditional view that a person is notliable for damages resulting from the

exercise of ones right.

2. Article 20 of the Civil Code

Speaks of the general sanction for allother provisions of law which do notespecially provide for their ownsanction.

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

negligently.

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

Elements:

a. Act which is legal;


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b. The act is contrary to morals,good customs, public order or publicpolicy; andc. The act is done with intent to

injure.NOTE: Damages are recoverable even ifno positive law was violated.

Kinds:

a. Breach of promise to marry

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

EXCEPTION: In cases where there is

another act independent of the breachof promise to marry which gives rise toliability:

1. Cases where there was financialdamage.2. Social humiliation caused to one ofthe parties.3. Where there was moral seduction.

NOTES:

Moral seduction, although notpunishable, connotes the idea of deceit,

enticement, superior power or abuse ofconfidence on the part of the seducer towhich the woman has yielded. (GashemShokat Baksh vs. CA)

Sexual intercourse is not by itself abasis for recovery; damages could onlybe awarded if the sexual intercourse isnot a product of voluntariness or mutualdesire.

b. Seduction without breach ofpromise to marry

Seduction, by itself, is also an actcontrary to morals, good customs andpublic policy.

The defendant is liable if heemployed deceit, enticement, superior

power or abuse of confidence insuccessfully having sexual intercoursewith another even if he satisfied his lustwithout promising to marry the offended

party. It may not even matter that theplaintiff and the defendant are of thesame gender.

c. Sexual assault

Defendant is liable for all forms of

sexual assault including crimes definedunder the RPC as rape, acts oflasciviousness and seduction.

d. Desertion by a spouse

A spouse has a legal obligation to livewith his/her spouse.

If a spouse does not perform his/herduty to the other, he may be liable for

damages for such omission because thesame is contrary to law, morals, goodcustoms and public policy.

e. Trespass and Deprivation ofProperty

2 KINDS:

1) Trespass to and/or deprivationof real property

Liability for damages under theRPC and Article 451 of the Civil Coderequires intent or bad faith.

Article 448 of the Civil Code inrelation to Article 456 does notpermit action for damages where thebuilder, planter, or sower acted ingood faith. The landowner is limitedto the options given to him underarticle 448, that is to appropriate

whatever is built or planted or to


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compel the builder or planter topurchase the portion encroachedupon. (Aquino, Torts and Damages)

A builder in good faith who acted

negligently may be held liable underArt. 2176 NCC.

2) Trespass to or deprivation ofpersonal property

In the field of tort, trespassextends to all cases where a personis deprived of his personal propertyeven in the absence of criminalliability.

NOTE: It may cover cases where thedefendant was deprived of personalproperty for the purpose of obtainingpossession of real property

EXAMPLE: The defendant whowas landlord, was held liablebecause he deprived the plaintiffs,his tenants, of water in order toforce them to vacate the lot theywere cultivating. (Magbanua vs. IAC137 SCRA 352)

3) Disconnection of electricity orgas service

The right to disconnect anddeprive the customer, whounreasonably fails to pay his bills, ofelectricity should be exercised inaccordance with the law and rules.

Example: If a companydisconnects the electricity servicewithout prior notice as required bythe rules, the company commits atort under Article 21 NCC.

f. Abortion and Wrongful Death

Damages may be recovered by bothspouses if:1) the abortion was caused throughthe physicians negligence, or2) was done intentionally withouttheir consent

Husband of a woman who voluntarilyprocured her abortion may recoverdamages from the physician who causedthe same on account of distress and

mental anguish attendant to the loss ofthe unborn child and the disappointmentof his parental expectation. (Geluz vs.CA 2SCRA802)

g. Illegal Dismissal

The right of the employer to dismissan employee should not be confused withthe manner in which the right is

exercised and the effects flowingtherefrom;

If the dismissal was done anti-socially and oppressively, the employershould be deemed to have violatedArticle 1701 of the Civil Code (whichprohibits acts of oppression by eithercapital or labor against the other) andArticle 21 NCC.

An employer may be held liable fordamages if the manner of dismissing iscontrary to morals good customs andpublic policy.

EXAMPLE: False imputation ofmisdeed to justify dismissal or anysimilar manner of dismissal which is doneabusively.

h. Malicious Prosecution

An action for damages brought byone against another whom a criminalprosecution, civil suit, or other legal

proceeding has been institutedmaliciously and without probable cause,after the termination of suchprosecution, suit or proceeding in favorof the defendant therein.

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


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Elements:

1. The fact of the prosecution andthe further fact that the defendant was

himself the prosecutor; and that theaction was finally terminated with anacquittal;2. That in bringing the action, theprosecutor acted without probablecause;3. The prosecutor was actuated orimpelled by legal malice.

NOTES:

Malice is the inexcusable intent toinjure, oppress, vex, annoy or humiliate.

Presence of probable cause signifiesabsence of malice.

Absence of malice signifies goodfaith on the part of the defendant; goodfaith may even be based on mistake oflaw.

Acquittal presupposes that a criminalinformation is filed in court and finaljudgment rendered dismissing the case;

nevertheless, prior acquittal may includedismissal by the prosecutor afterpreliminary investigation. (Globe Mackayand Radio Corp. vs. CA; Manila Gas Corpvs. CA)

i. Public Humiliation

Damages may be awarded in caseswhere the plaintiff suffered humiliationthrough the positive acts of thedefendant directed against the plaintiff.

Example: The defendant was heldliable for damages under Art. 21 forslapping the plaintiff in public. (Patriciovs. Hon. Oscar Leviste, [1989])

NOTES:

Under Article 21, damages arerecoverable even though no positive lawwas violated.

An action can only prosper when

damage, material or otherwise, wassuffered by the plaintiff. An actionbased on Articles 19-21 will be dismissedif the plaintiff merely seeksrecognition.

Under Articles 19 and 21, thedefendant may likewise be guilty of atort 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 personsexpectation of privacy depends on atwo-part test:

a) Whether by his conduct, theindividual has exhibited anexpectation of privacy.b) Whether this expectation is onethat the society recognizes asreasonable.

NOTES:GENERAL RULE: Right to privacy canbe invoked only by natural persons;Juridical persons cannot invoke suchright because the entire basis of right toprivacy is an injury to the feelings andsensibilities of a party, a corporationwould have no such ground.EXCEPTION: Right against unreasonablesearches and seizure can be invoked by ajuridical entity.

GENERAL RULE: Right to privacy ispurely personal in nature, hence:1) It can be invoked only by the

person whose privacy is claimed to havebeen violated.2) It can be subject to waiver of theperson whose privacy is sought to beintruded into.3) The right ceases upon the death ofthe person.EXCEPTION: A privilege may be givento the surviving relatives of a deceasedperson to protect his memory but theprivilege exist for the benefit of theliving, to protect their feelings and toprevent the violation of their own rights


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in the character and memory of thedeceased.

Standard to be applied indetermining if there was a violation of

the right is that of a person withordinary sensibilities. It is relative tothe customs of time and place and isdetermined by the norm of an ordinaryperson.

Four Types of Invasion of Privacya. Intrusion upon plaintiffs

seclusion or solitude or into hisprivate affairs

It is not limited to cases wherethe defendant physically trespassed intoanothers property. It includes cases

when the defendant invades onesprivacy by looking from outside(Example: peeping-tom).GENERAL RULE: There is no invasion ofright to privacy when a journalist recordsphotographs or writes about somethingthat occurs in public places.EXCEPTION: When the acts of thejournalist should be to such extent thatit constitutes harassment or overzealousshadowing.

The freedom of the press has neverbeen construed to accord newsmen

immunity from tort or crimes committedduring the course of the newsgathering.

There is no intrusion when anemployer investigates an employee orwhen the school investigates its student.

RA 4200 makes it illegal for anyperson not authorized by all the partiesto any private communication to secretlyrecord such communication by means ofa tape recorder (Ramirez vs CA, Sept.28, 1995)

Use of a telephone extension forpurposes of overhearing a privateconversation without authorization doesnot violate RA 4200.NOTE: There are instances where theschool might be called upon to exerciseits power over its student for actscommitted outside the school premisesand beyond school hours in thefollowing:1. In cases of violation of school

policies or regulations occurring inconnection with school sponsoredactivity off-campus; or

2. In cases where the misconduct of thestudent involves his status as astudent or affects the good nameand reputation of the school.

b. Publication of EmbarrassingPrivate Facts Requisites:1. Publicity is given to any privateor purely personal information abouta person;2. Without the latters consent; and3. Regardless of whether or notsuch publicity constitutes a criminaloffense, like libel or defamation, thecircumstance that the publicationwas made with intent of gain or for

commercial and business purposesinvariably serves to aggravate theviolation of the right.

PUBLIC FIGURE - A person, whoby his accomplishments, fame or modeof living or by adopting a profession orcalling which gives the public alegitimate interest in his doings, hisaffairs and his character.

NOTE: Public figures, most especiallythose holding responsible positions in

government enjoy a more limited rightto privacy compared to ordinaryindividuals.

The interest sought to beprotected is the right to be free fromunwarranted publicity, from thewrongful publicizing of the privateaffairs and activities of an individualwhich are outside the realm oflegitimate public concern. The publication of facts derivedfrom the records of officialproceedings which are not otherwisedeclared by law as confidential,cannot be considered a tortiousconduct.

c. Publicity which places a personin a false light in the public eye The interest to be protected inthis tort is the interest of theindividual in not being made toappear before the public in anobjectionable false light or falseposition.


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EXAMPLE: Defendant was held liablefor damages when he published anunauthorized biography of a famousbaseball player exaggerating his

feats on the baseball field,portraying him as a war hero. (Spahnvs. Messner) If the publicity given to theplaintiff is defamatory, hence anaction for libel is also warranted; theaction for invasion of privacy willafford an alternative remedy. May be committed by the mediaby distorting a news report.

Tort of PuttingAnother in False

Light

Defamation

1. As to gravamen of claimThe gravamen ofclaim is not thereputational harmbut rather theembarrassment of aperson being madeinto some-thing he isnot

The gravamen ofclaim is the reputa-tional harm

2. As to publicationThe statement shouldbe actually made inpublic

Publication issatisfied if a letter issent to a third person

3. As to the defamatory character of thestatements

Defendant may stillbe held liable even ifthe statements tellssomething goodabout the plaintiff

What is publishedlowers the esteem inwhich the plaintiff isheld

d. Commercial appropriation oflikeness The unwarranted publication of apersons name or the unauthorizeduse of his photograph or likeness for

commercial purposes is an invasionof privacy. With respect to celebrities,however, the right of publicity isoften treated as a separate right thatoverlaps but is distinct from the rightof privacy. They treat their namesand likeness as property and theywant to control and profittherefrom.

2. Interference with Family and otherrelations

The gist of the tort is an interferencewith one spouses mental attitudetoward the other and the conjugalkindness of marital relations

resulting in some actual conductwhich materially affects it. It extends to all cases of wrongful

interference in the family affairs ofothers whereby one spouse isinduced to leave the other spouse orconduct himself or herself that thecomfort of married life is destroyed.

If the interference is by the parentsof the spouse, malice must beproven.

3. Intriguing to Cause Alienation

4. Vexation and Humiliation Discrimination against a person on

account of his physical defect, whichcauses emotional distress, may resultin liability on the part of theoffending party.

Sexual Harassment falls under thiscategory.

- a civil action separate and distinct fromthe criminal action may becommenced under RA 7877.

- 2 types of Sexual harassment:

a) quid pro quo casesb) hostile environment cases

TORTS WITH INDEPENDENT CIVILACTIONS1. Violation of civil and political rights

(Article 32) Although the same normally involves

intentional acts, it can also becommitted through negligence.

Public officer who is a defendantcannot escape liability under thedoctrine of state immunity; the saiddoctrine applies only if acts involvedare done by officers in theperformance of their official dutywithin the ambit of their powers;officers do not act within the ambitof their powers if they violate theconstitutional rights of persons.

2. Defamation, Fraud, and Physicalinjuries (Article 33)A. Defamation Defamation is an invasion of the

interest in reputation and good


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name, by communication to otherswhich tends to diminish the esteemin which the plaintiff is held, or toexcite adverse feelings or opinion

against him. Includes the crime of libel andslander. RPC considers the statementdefamatory if it is an imputation ofcircumstance tending to cause thedishonor, discredit or contempt ofnatural or juridical person or toblacken the memory of one who isdead. Requisites for one to be liablefor defamatory imputations:

a. It must be defamatory

b. It must be maliciousc. It must be given publicityd. The victim must beidentifiable

NOTES:

Test in determining thedefamatory character of theimputation: A charge is sufficient ifthe words are calculated to induce thehearers to suppose and understandthat the person/s against whom theywere uttered were guilty of a certain

offense, or are sufficient to impeachtheir honesty, virtue, or reputation, orto hold the person/s up to publicridicule.

Dissemination to a number ofpersons is not required,communication to a single individualis sufficient publication.GENERAL RULE: Every defamatoryimputation is presumed to bemalicious, even if it be true, if nogood intention or justifiable motive

for making it is shown.EXCEPTIONS:1. A private communicationmade by any person to anotherin the performance of any legal,moral or social duty; and2. A fair and true report, madein good faith, without anycomments or remarks, of anyjudicial, legislative or otherofficial proceedings which arenot of confidential nature, or ofany statement, report, or speech

delivered in said proceedings or

of any other act performed bypublic officers in the exercise oftheir functions.

It is not sufficient that theoffended party recognized himself asthe person attacked or defamed, itmust be shown that at least a thirdperson could identify him as theobject of the libelous publication. In order to escape liability, thedefendant may claim that thestatements made are privileged.

Two kinds of privilegedcommunication:

1) Absolutely privilege Thosewhich are not actionable even ifthe author acted in bad faith.

2) Qualifiedly privilege notactionable unless found to havebeen made without goodintention or justifiable motive.

B. Fraud Elements of deceit

1)The defendant must have madefalse representation to theplaintiff

2)The representation must be oneof fact

3)The defendant must know thatthe representation is false or bereckless about whether it is false

4)The defendant must have actedon the false representation

5)The defendant must haveintended that the falserepresentation should be actedon

6)The plaintiff must have suffereddamage as a result of acting on

the false representation Half-truths are likewiseincluded; it is actionable if thewithholding of that which is notstated makes that which is statedabsolutely false. Misrepresentation upon a merematter of opinion is not anactionable deceit.

C. Physical injuries Battery an intentional inflictionof a harmful or offensive bodily


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contact; bodily contact is offensive ifit offends a reasonable personssense of dignity. Assault intentional conduct by

one person directed at anotherwhich places the latter inapprehension of immediate bodilyharm or offensive act. Includes bodily injuries causingdeath. Physical injuries which resultedbecause of negligence or imprudenceis not included in Article 33; they arealready covered by Article 2176 ofthe Civil Code.

3. Neglect of duty by police officers

(Article 34) Subsidiary liability of cities and

municipalities, is imposed so thatthey will exercise great care inselecting conscientious and dulyqualified policemen and exercisesupervision over them in theperformance of their duties.

CIVIL LIABILITY ARISING FROM DELICT Every person criminally liable for a

felony is also civilly liable. (Article100 RPC)

The reason is because a crime has adual character: as an offense againstthe State and against the privateperson injured by it.

Dual character of crimes applies tocases governed by special laws.Example: violation of the BP 22results in criminal and civil liability.

There is civil liability even if theoffense is a public offense, like inbigamy.

Persons liable are the principal,accomplice and accessories.

It includes restitution, reparation ofdamages and indemnification ofconsequential damages.

The rule on proximate cause inquasi-delict cases is applicable tocases involving civil liability arisingfrom delict. Art. 2202, NCC

Circumstances affecting Civil Liability1. Justifying circumstances

Defendant is free from civilliability if justifying circumstances

are properlyestablishes.

2. Exempting Circumstances They do not erase the civilliability.

3. Mitigating and Aggravating

Circumstances Damages to be adjudicated mayeither be decreased or increaseddepending on the presence ofmitigating or aggravatingcircumstances.

Effect of DeathA. DEATH AFTER FINAL JUDGMENT:

extinguishes criminal liability of theperson liable but will not extinguishthe civil liability.

B. DEATH BEFORE FINAL JUDGMENT:GENERAL RULE: The defendant isrelieved from both criminal and civilliability arising from criminalliability.EXCEPTION: In case of libel andphysical injuries wherein theplaintiff initially opted to claimdamages in the criminal proceedingcan file another case under Article33 of the Civil Code.

Effect of Pardon

Pardon does not erase civil liability. While pardon removes the existenceof guilt so that in the eyes of the law theoffender is deemed innocent and treatedas though he never committed theoffence, it does not operate to removeall 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 abetthe commission of a tort, or who approveof it after it is done, if done for theirbenefit; they are each liable as aprincipal, to the same extent and in thesame manner as if they have performedthe wrongful act themselves. The responsibility of two or morepersons liable for quasi-delict is solidary(Article 2194 Civil Code); they are notliable pro rata, they are jointly and

severally liable for the whole amount.


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2. Motor vehicle mishaps The owner is solidarily liable withthe driver, if the former, who was in the

vehicle, could have, by the use of duediligence, prevented the misfortune.(Article 2184 Civil Code) Solidary liability is imposed on theowner not because of his imputedliability but because his own omission isa concurring proximate cause of theinjury.

Vicarious Liability or Doctrine ofImputed Negligence A person is not only liable fortorts committed by himself, but also for

torts committed by others with whom hehas a certain relation or for whom he isresponsible. (Article 2180 Civil Code) Exercise of diligence of a goodfather of a family to prevent damage is adefense.

Doctrine of Respondeat Superior the liability is strictly imputed, theemployer is liable not because of his actor omission but because of the act oromission of the employee; employercannot escape liability by claiming thathe exercised due diligence in theselection or supervision of the employee.GENERAL RULE: Vicarious liability inthe Philippines is not governed by thedoctrine of respondeat superior;employers or parents are made liable notonly because of the negligent orwrongful act of the person for whomthey are responsible but also because oftheir own negligence:

1) Liability is imposed on theemployer because he failed toexercise due diligence in theselection or supervision of theemployee

2) Parents are made liable becausethey failed to exercise duediligence

EXCEPTION: Doctrine ofrespondeatsuperioris 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: (Article2180 of the Civil Code)

1. The Father, or in case of death or

incapacity, mother

For damage caused by:

a) minor childrenb) living in their company

This has already been modified byArt. 221 of the Family Code to the extentthat the alternative qualification of theliability of the father and the mother hasbeen removed.

NOTES:

The basis of liability for the actsor omissions of their minorchildren is the parental authoritythat they exercise over them,except for children 18 to 21.

The same foreseability test ofnegligence should apply toparents when they are sought to

be held liable under Art. 2180,NCC

The liability is not limited toparents, the same is alsoimposed on those exercisingsubstitute and special parentalauthority, i.e., guardian.

The liability is present only bothunder Art 2180 of the NCC andArt 221 of the Family Code if thechild is living in his parentscompany.

Parental authority is not the solebasis of liability. A teacher incharge is still liable for the actsof their students even if theminor student reaches the age ofmajority.

The parents or guardians can stillbe held liable even if the minoris already emancipated providedthat he is below 21 years of age.

Parents and other personsexercising parental authority canescape liability by proving that

they observed all the diligence of


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a good father of a family toprevent damages. (Art. 2180)

The burden of proof rests on theparents 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 ofestablishments

For damage caused by:

a) their employeesb) in the service of the branches in

which they are employed, orc) on the occasion of their

functions

4. Employers

For damages cause by:

a) employees and household helpersb) acting within the scope of their

assigned tasksc) even if the employer is not

engaged in any business orindustry

NOTES:

Liability of the employer can beestablished by proving the existence ofan employer-employee relationship withthe actor and the latter caused theinjury while performing his assigned taskor functions.

The vicarious liability attaches onlywhen the tortuous conduct of theemployees relates to or is in the courseof his employment.

While the employer incurs no liabilitywhen an employees conduct, act oromission is beyond the range of

employment, a minor deviation from theassigned task of an employee, howeverdoes not affect the liability of anemployer. (Valenzuela vs. CA, 253 SCRA

303) It is a defense that the employerexercised proper diligence in theselection and supervision of negligentemployee.

5. State

For damage caused by:a) a special agent

b) not when the damage has been

caused by the official to whom thetask done properly pertains

Public officers who are guilty oftortuous conduct are personally liable fortheir actions.

6. Schools, Teachers andAdministrators

For damage caused by:a) pupils and students or

apprenticesb) 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 ofacademic institutions.

Liability attaches to the teacher-in-charge.

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

The liability extends to actscommitted even outside theschool so long as it is an officialactivity of the school.

Whenever the school or teacheris being made liable, the parentsand those exercising substituteparental authority are not free


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from liability because Art. 219 ofthe Family Code expresslyprovides that they aresubsidiarily liable.

Art. 2180 makes teachers andheads liable for acts of studentsand apprentices whether thelatter are minors or not.

GENERAL RULE: The teacher-in-chargeis liable for the acts of his students. Theschool and administrators are not liable.

EXCEPTION: It is only the head of the

school, not the teacher who is held liablewhere the injury is caused in a school ofarts and trade.

The liability ofthe teacher subsists whether theschool is academic or non-academic.

Liability isimposed only if the pupil isalready in the custody of theteacher or head. The student isin the custody of the schoolauthorities as longs as he is

under the control and influenceof the school and within itspremises whether the semesterhad not yet begun or has alreadyended.

The victim of negligence islikewise required to exercise duecare in avoiding injury tohimself.

Other Persons Vicariously Liable:1. Innkeepers and Hotelkeepers

They are civilly liable for crimescommitted 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 therestitution of goods taken by robbery ortheft within their houses from guestslodging therein, or for payment of thevalue thereof, provided that:a. The innkeeper was notified inadvance of the deposit of such goodswithin the inn; and

b. The guest shall have followed thedirections which such innkeeper or hisrepresentative may have given withrespect to the care and vigilance over

the goods.

2. Partnership

Partnership or every partner is liablefor torts committed by one of thepartners acting within the scope of thefirm business, though they do notparticipate in, ratify, or have knowledgeof such torts.

Partners are liable as joint tort-feasors.

Vicarious liability is similar to thecommon law rule on respondeat

superior.

Liability is entirely imputed and thepartnership cannot obviously invokediligence in the selection and supervisionof the partner.

3. Spousesa. absolute community of property The absolute communityproperty shall be for liabilities incurredby either spouses by reason of crime orquasi-delict in case of absence or

insufficiency of the exclusive property ofthe debtor-spouse. (Article 94 FamilyCode)

Payments shall be consideredadvances to be deducted from the shareof the debtor spouse upon liquidation ofthe community.b. conjugal partnership of gainsGENERAL RULE: Pecuniary indemni-tiesimposed upon the husband or wife arenot chargeable against the conjugalpartnership but against the separate

properties of the wrongdoer.EXCEPTION: Conjugal partnershipshould be made liable:1) When the profits have inured to thebenefit of the partnership, or2) If one of the spouses committed thetort while performing a business or if theact was supposed to benefit thepartnership.c. regime of separation of property Each spouse is responsible forhis/her separate obligation.


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C. STRICT LIABILITY

When the person is made liableindependent of fault or negligence upon

submission of proof of certain factsspecified by law.NOTE: Strict liability tort can becommitted even if reasonable care wasexercised and regardless of the state ofmind of the actor at that time.

TYPES:

1. Animals

GENERAL RULE: The possessor of an

animal or whoever may make use of thesame is responsible for the damageswhich it may cause although

Documents

Torts and Damages Beda