MINDANAO TERMINAL AND BROKERAGE SERVICE, INC.                   - versus -PHOENIX ASSURANCE COMPANY OF NEW YORK/MCGEE & CO., INC G.R. No. 162467               May 8, 2009Tinga, J.:

FACTS: Del Monte Philippines, Inc. contracted

petitioner Mindanao Terminal and Brokerage Service, Inc., a stevedoring company, to load and stow a shipment of 146,288 cartons of fresh green Philippine bananas and 15,202 cartons of fresh pineapples belonging to Del Monte Fresh Produce International, Inc. into the cargo hold of the vessel M/V Mistrau. The vessel was docked at the port of Davao City and the goods were to be transported by it to the port of Inchon, Korea in favor of consignee Taegu Industries, Inc. Del Monte Produce insured the shipment under an "open cargo policy" with private respondent Phoenix Assurance Company of New York , a non-life insurance company, and private respondent McGee & Co. Inc. (McGee), the underwriting manager/agent of Phoenix.

The vessel set sail from the port of Davao City and arrived at the port of Inchon, Korea. It was then discovered upon discharge that some of the cargo was in bad condition. The Marine Cargo Damage Surveyor of Incok Loss and Average Adjuster of Korea, through its representative Byeong Yong Ahn (Byeong), surveyed the extent of the damage of the shipment. In a survey report, it was stated that 16,069 cartons of the banana shipment and 2,185 cartons of the pineapple shipment were so damaged that they no longer had commercial value.

Mindanao Terminal loaded and stowed the cargoes aboard the M/V Mistrau. The vessel set sail from the port of Davao City and arrived at the port of Inchon, Korea. It was then discovered upon discharge that some of the cargo was in bad condition.

Del Monte Produce filed a claim under the open cargo policy for the damages to its shipment. McGee’s Marine Claims Insurance Adjuster evaluated the claim and recommended that payment in the amount of $210,266.43 be made. Phoenix and McGee instituted an action for damages against Mindanao Terminal

After trial, the RTC held that the only participation of Mindanao Terminal was to load the cargoes on board the M/V Mistrau

under the direction and supervision of the ship’s officers, who would not have accepted the cargoes on board the vessel and signed the foreman’s report unless they were properly arranged and tightly secured to withstand voyage across the open seas. Accordingly, Mindanao Terminal cannot be held liable for whatever happened to the cargoes after it had loaded and stowed them. Moreover, citing the survey report, it was found by the RTC that the cargoes were damaged on account of a typhoon which M/V Mistrau had encountered during the voyage. It was further held that Phoenix and McGee had no cause of action against Mindanao Terminal because the latter, whose services were contracted by Del Monte, a distinct corporation from Del Monte Produce, had no contract with the assured Del Monte Produce. The RTC dismissed the complaint and awarded the counterclaim of Mindanao Terminal in the amount of P83,945.80 as actual damages and P100,000.00 as attorney’s fees.

ISSUE:Whether or not Phoenix and McGee

have a cause of action and whether Mindanao Terminal is liable for not having exercised extraordinary diligence in the transport and storage of the cargo.

RULING:No, in the present case, Mindanao

Terminal, as a stevedore, was only charged with the loading and stowing of the cargoes from the pier to the ship’s cargo hold; it was never the custodian of the shipment of Del Monte Produce. A stevedore is not a common carrier for it does not transport goods or passengers; it is not akin to a warehouseman for it does not store goods for profit.

**Phoenix and McGee appealed to the Court of Appeals. The appellate court reversed and set aside the decision The same court ordered Mindanao Terminal to pay Phoenix and McGee "the total amount of $210,265.45 plus legal interest from the filing of the complaint until fully paid and attorney’s fees of 20% of the claim." It sustained Phoenix’s and McGee’s argument that the damage in the cargoes was the result of improper stowage by Mindanao Terminal.

** Mindanao Terminal filed a motion for reconsideration, which the Court of Appeals denied in its 26 February 2004 resolution. Hence, the present petition for review.

AIR FRANCE,

                  - versus -RAFAEL CARRASCOSO and the HONORABLE COURT OF APPEALS,G.R. No. L-21438             September 28, 1966Sanchez, J.:

FACTS:          On March 28, 1958, the

defendant, Air France, through its authorized agent, Philippine Air Lines, Inc., issued to plaintiff a "first class" round trip airplane ticket from Manila to Rome. Rafael Carrascoso was one of the 48 Filipino pilgrims who left Manila for Lourdes. However, at Bangkok, the Manager of the defendant airline forced plaintiff to vacate the "first class" seat that he was occupying because, in the words of the witness Ernesto G. Cuento, there was a "white man", who, the Manager alleged, had a "better right" to the seat. When asked to vacate his "first class" seat, the plaintiff, as was to be expected, refused, and told defendant's Manager that his seat would be taken over his dead body; a commotion ensued, and, according to said Ernesto G. Cuento, "many of the Filipino passengers got nervous in the tourist class; when they found out that Mr. Carrascoso was having a hot discussion with the white man [manager], they came all across to Mr. Carrascoso and pacified Mr. Carrascoso to give his seat to the white man".

ISSUE: Whether or not damages may be

recovered on the basis of the expulsionHELD:

Yes, the contract of air carriage generates a relation attended with public duty. Passengers should be protected and insured a pleasant trip. Thus, the wrongful expulsion is a violation of public duty by the air carrier- a quasi delict. Damages are proper.

**          If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class seat, notwithstanding the fact that seat availability in specific flights is therein confirmed, then an air passenger is placed in the hollow of the hands of an airline. What security then can a passenger have? The foregoing, in our opinion, substantially aver: First, That there was a contract to furnish plaintiff a first class passage covering, amongst others, the Bangkok-Teheran leg; Second, That said contract was breached when petitioner failed to furnish first class transportation at Bangkok; and Third, that there was bad faith when petitioner's employee compelled Carrascoso to leave his first class accommodation berth "after he was

already, seated" and to take a seat in the tourist class, by reason of which he suffered inconvenience, embarrassments and humiliations, thereby causing him mental anguish, serious anxiety, wounded feelings and social humiliation, resulting in moral damages. It is true that there is no specific mention of the term bad faith in the complaint. But, the inference of bad faith is there, it may be drawn from the facts and circumstances set forth therein. 34 The contract was averred to establish the relation between the parties. But the stress of the action is put on wrongful expulsion.

** Passengers do not contract merely for transportation. They have a right to be treated by the carrier's employees with kindness, respect, courtesy and due consideration. They are entitled to be protected against personal misconduct, injurious language, indignities and abuses from such employees. So it is, that any rule or discourteous conduct on the part of employees towards a passenger gives the latter an action for damages against the carrier. 44

ALFREDO P. PACIS and CLEOPATRA D. PACIS                  - versus -JEROME JOVANNE MORALES,G.R. No. 169467 February 25, 2010CARPIO, J.:FACTS:

          On January 19, 1991, Alfred Dennis Pacis, then 17 years old and a first year student at the Baguio Colleges Foundation taking up BS Computer Science, died due to a gunshot wound in the head which he sustained while he was at the Top Gun Firearm[s] and Ammunition[s] Store located at Upper Mabini Street, Baguio City. The gun store was owned and operated by defendant Jerome Jovanne Morales. The bullet which killed Alfred Dennis Pacis was fired from a gun brought in by a customer of the gun store for repair. With Alfred Pacis at the time of the shooting were Aristedes Matibag and Jason Herbolario. They were sales agents of the defendant, and at that particular time, the caretakers of the gun store.

It appears that Matibag and Herbolario later brought out the gun from the drawer and placed it on top of the table. Attracted by the sight of the gun, the young Alfred Dennis Pacis got hold of the same.

Matibag  asked Alfred Dennis Pacis to return the gun. The latter followed and handed the gun to Matibag. It went off, the bullet hitting the young Alfred in the head.

On 8 April 1998, the trial court rendered its decision in favour Spouses Alfredo P. Pacis and Cleopatra D. Pacis. Respondent appealed to the Court of Appeals. In its Decision dated 11 May 2005, the Court of Appeals reversed the trial court’s Decision and absolved respondent from civil liability under Article 2180 of the Civil Code. Petitioners filed a motion for reconsideration, which the Court of Appeals denied in its Resolution dated 19 August 2005.

ISSUE:Whether or not Jerome Jovanne

Morales Is guilty of negligence and lack of due care as he failed to observe the diligence of a good father of a family. HELD:

Yes, as a gun store owner indeed, a higher degree of care is required of someone who has in his possession or under his control an instrumentality extremely dangerous in character, such as dangerous weapons or substances. Such person in possession or control of  dangerous instrumentalities has the duty to take exceptional precautions to prevent any injury being done thereby. Unlike the ordinary affairs of life or business which involve little or no risk, a business dealing with dangerous weapons requires the exercise of a higher degree of care. Morales is presumed to be knowledgeable about firearms safety and should have known never to keep a loaded weapon in his store to avoid unreasonable risk of harm or injury to others. He has the duty to ensure that all the guns in his store are not loaded. Firearms should be stored unloaded and separate from ammunition when the firearms are not needed for ready-access defensive use.   With more  reason, guns accepted by the store for repair should not be loaded precisely because they are defective and may cause an accidental discharge such as what happened in this case.

He were clearly negligent when he accepted the gun for repair and placed it inside the drawer without ensuring first that it was not loaded. In the first place, the defective gun should have been stored in a vault. Before accepting the defective gun for repair, respondent should have made sure that it was not loaded to prevent any untoward accident. For failing to insure that the gun was not loaded, respondent himself was negligent. Furthermore, it was not shown in this case whether respondent had a License to Repair

which authorizes him to repair defective firearms to restore its original composition or enhance or upgrade firearms.      

_________________________________________________________________________________________

DR. MILAGROS L. CANTRE, - versus –SPS. JOHN DAVID Z. GO and NORA S. GO,G.R. No. 160889             April 27, 2007QUISUMBING, J.:

FACTS:Dr. Milagros L. Cantre is a specialist in

Obstetrics and Gynecology at the Dr. Jesus Delgado Memorial Hospital. She was the attending physician of respondent Nora S. Go, who was admitted at the said hospital on April 19, 1992. At 1:30 a.m. of April 20, 1992, Nora gave birth to her fourth child, a baby boy. However, at around 3:30 a.m., Nora suffered profuse bleeding inside her womb due to some parts of the placenta which were not completely expelled from her womb after delivery. Consequently, Dr. Milagros L. Cantre performed various medical procedures to stop the bleeding and to restore Nora’s blood pressure.

While massaging Nora’s uterus for it to contract and stop bleeding, she ordered a droplight to warm Nora and her baby. Nora remained unconscious until she recovered. While in the recovery room, her husband, respondent John David Z. Go noticed a fresh gaping wound two and a half (2 ½) by three and a half (3 ½) inches in the inner portion of her left arm, close to the armpit.5 He asked the nurses what caused the injury. He was informed it was a burn. Forthwith, on April 22, 1992, John David filed a request for investigation.

On May 7, 1992, John David brought Nora to the National Bureau of Investigation for a physical examination, The medico-legal officer later testified that Nora’s injury appeared to be a burn and that a droplight when placed near the skin for about 10 minutes could cause such burn He dismissed the likelihood that the wound was caused by a blood pressure cuff as the scar was not around the arm, but just on one side of the arm. The costs of the skin grafting and the scar revision were shouldered by the hospital.

Unfortunately, Nora’s arm would never be the same Aside from the unsightly mark, the pain in her left arm remains. When sleeping, she has to cradle her wounded arm. Her

movements now are also restricted. Her children cannot play with the left side of her body as they might accidentally bump the injured arm, which aches at the slightest touch. Thus, on June 21, 1993, respondent spouses filed a complaint for damages against Dr. Cantre, Dr. Abad, and the hospital.

In view of the foregoing consideration, judgment was rendered in favor of Sps. John and Nora GO. Dr. Cantre, Dr. Abad, and the hospital all appealed to the Court of Appeals, which affirmed with modification the trial court decision, the motion for reconsideration was denied by the Court of Appeals. Hence, the instant petition.

ISSUE:Whether or not Dr. Cantre is

responsible for the injury sustained by Nora S. Go.

HELD:Yes, the gaping wound on Nora’s left

arm, by its very nature and considering her condition, could only be caused by something external to her and outside her control as she was unconscious while in hypovolemic shock.Whether the injury was caused by the droplight or by the blood pressure cuff is of no moment. Both instruments are deemed within the exclusive control of the physician in charge under the "captain of the ship" doctrine. This doctrine holds the surgeon in charge of an operation liable for the negligence of his assistants during the time when those assistants are under the surgeon’s control.

** In cases involving medical negligence, the doctrine of res ipsa loquitur allows the mere existence of an injury to justify a presumption of negligence on the part of the person who controls the instrument causing the injury, provided that the following requisites concur:

1. The accident is of a kind which ordinarily does not occur in the absence of someone’s negligence;2. It is caused by an instrumentality

within the exclusive control of the defendant or defendants; and

3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated.

PROFESSIONAL SERVICES, INC., - versus -NATIVIDAD and ENRIQUE AGANA,G.R. No. 126297             January 31, 2007SANDOVAL-GUTIERREZ, J.:

NATIVIDAD (Substituted by her children MARCELINO AGANA III, ENRIQUE AGANA, JR., EMMA AGANA ANDAYA, JESUS AGANA, and RAYMUND AGANA) and ENRIQUE AGANA, - versus -JUAN FUENTES,G.R. No. 126467            January 31, 2007SANDOVAL-GUTIERREZ, J.:

MIGUEL AMPIL, - versus -NATIVIDAD AGANA and ENRIQUE AGANA, G.R. No. 127590            January 31, 2007SANDOVAL-GUTIERREZ, J.:

FACTS:On April 4, 1984, Natividad Agana was rushed to the Medical City General Hospital because of difficulty of bowel movement and bloody anal discharge. After a series of medical examinations, Dr. Miguel Ampil, petitioner in G.R. No. 127590, diagnosed her to be suffering from "cancer of the sigmoid."

On April 11, 1984, Dr. Ampil, assisted by the medical staff of the Medical City Hospital, performed an anterior resection surgery on Natividad. He found that the malignancy in her sigmoid area had spread on her left ovary, necessitating the removal of certain portions of it. Thus, Dr. Ampil obtained the consent of Natividad’s husband, Enrique Agana, to permit Dr. Juan Fuentes, respondent in G.R. No. 126467, to perform hysterectomy on her.

After Dr. Fuentes had completed the hysterectomy, Dr. Ampil took over, completed the operation and closed the incision. However, the operation appeared to be flawed, because in the corresponding Record of Operation dated April 11, 1984, the attending nurses entered the remarks: "sponge count lacking 2” "announced to surgeon search done but to no avail continue for closure."

Natividad Agana was discharged on April 24, 1984 and payed hospital bills amounting to 60,000 Php.

After a couple of days, Natividad complained of excruciating pain in her anal region. She consulted both Dr. Ampil and Dr. Fuentes about it. They told her that the pain was the natural consequence of the surgery. Dr. Ampil then recommended that she consult an oncologist to examine the cancerous nodes which were not removed during the operation.

On May 9, 1984, Natividad, accompanied by her husband, went to the United States to seek

further treatment. After four months of consultations and laboratory examinations, Natividad was told she was free of cancer. Hence, she was advised to return to the Philippines.

On August 31, 1984, Natividad flew back to the Philippines, still suffering from pains. Two weeks thereafter, her daughter found a piece of gauze protruding from her vagina. Upon being informed about it, Dr. Ampil proceeded to her house where he managed to extract by hand a piece of gauze measuring 1.5 inches in width. He then assured her that the pains would soon vanish.

Dr. Ampil’s assurance did not come true. Instead, the pains intensified, prompting Natividad to seek treatment at the Polymedic General Hospital. While confined there, Dr. Ramon Gutierrez detected the presence of another foreign object in her vagina -- a foul-smelling gauze measuring 1.5 inches in width which badly infected her vaginal vault. A recto-vaginal fistula had formed in her reproductive organs which forced stool to excrete through the vagina. Another surgical operation was needed to remedy the damage. Thus, in October 1984, Natividad underwent another surgery.

On November 12, 1984, Natividad and her husband filed with the RTC, Branch 96, Quezon City a complaint for damages against the Professional Services, Inc. (PSI), owner of the Medical City Hospital, Dr. Ampil, and Dr. Fuentes . They alleged that the latter are liable for negligence for leaving two pieces of gauze inside Natividad’s body and malpractice for concealing their acts of negligence.

Meanwhile, Enrique Agana also filed with the Professional Regulation Commission (PRC) an administrative complaint for gross negligence and malpractice against Dr. Ampil and Dr. Fuentes. The PRC Board of Medicine heard the case only with respect to Dr. Fuentes because it failed to acquire jurisdiction over Dr. Ampil who was then in the United States. On February 16, 1986, pending the outcome of the above cases, Natividad died and was duly substituted by her above-named children. On March 17, 1993, the RTC rendered its Decision in favor of the Aganas.

Issues:

G.R. No. 126297 – Whether or not of Professional ServicesInc. is solidarily for the negligence of Dr. Ampil.

G.R. No. 126467 – Whether or not Dr. Fuentes is guilty of negligence or medical malpractice, invoking the doctrine of res ipsa loquitur, that the pieces of gauze are prima facie proofs that the operating surgeons have been negligent.

G.R. No. 127590 – Whether or not Dr. Ampil is liable for negligence and malpractice sans evidence that he left the two pieces of gauze in Natividad’s vagina.

HELD:

G.R. No. 126297 – YES, the owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions. Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks even though the former are not engaged in any business or industry. The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage.

Private hospitals, hire, fire and exercise real control over their attending and visiting ‘consultant’ staff. While ‘consultants’ are not, technically employees , the control exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with the exception of the payment of wages.

"The principal is bound by the acts of his agent with the apparent authority which he knowingly permits the agent to assume, or which he holds the agent out to the public as possessing.

In this case, PSI publicly displays in the lobby of the Medical City Hospital the names and specializations of the physicians associated or accredited by it, including those of Dr. Ampil and Dr. Fuentes. "it is now estopped from passing all the blame to the physicians whose names it proudly paraded in the public directory leading the public to believe that it vouched for their skill and competence." By accrediting Dr. Ampil and Dr. Fuentes and

publicly advertising their qualifications, the hospital created the impression that they were its agents, authorized to perform medical or surgical services for its patients. As expected, these patients, Natividad being one of them, accepted the services on the reasonable belief that such were being rendered by the hospital or its employees, agents, or servants.

G.R. No. 126467 – NO, the requisites for the applicability of the doctrine of res ipsa loquitur are: (1) the occurrence of an injury; (2) the thing which caused the injury was under the control and management of the defendant; (3) the occurrence was such that in the ordinary course of things, would not have happened if those who had control or management used proper care; and (4) the absence of explanation by the defendant. Of the foregoing requisites, the most instrumental is the "control and management of the thing which caused the injury."

We find the element of "control and management of the thing which caused the injury" to be wanting. Hence, the doctrine of res ipsa loquitur will not lie.

It was duly established that Dr. Ampil was the lead surgeon during the operation of Natividad. He requested the assistance of Dr. Fuentes only to perform hysterectomy when Dr. Ampil found that the malignancy in her sigmoid area had spread to her left ovary. Dr. Fuentes performed the surgery and thereafter reported and showed his work to Dr. Ampil. The latter examined it and finding everything to be in order, allowed Dr. Fuentes to leave the operating room.

Dr. Ampil then resumed operating on Natividad. He was about to finish the procedure when the attending nurses informed him that two pieces of gauze were missing. A "diligent search" was conducted, but the misplaced gauzes were not found. Dr. Ampil then directed that the incision be closed. During this entire period, Dr. Fuentes was no longer in the operating room and had, in fact, left the hospital.

Under the "Captain of the Ship" rule, the operating surgeon is the person in complete charge of the surgery room and all personnel connected with the operation. Dr. Ampil was

the lead surgeon. In other words, he was the "Captain of the Ship."

G.R. No. 127590 – YES, he is liable despite pointing to other probable causes, such as: (1) it was Dr. Fuentes who used gauzes in performing the hysterectomy; (2) the attending nurses’ failure to properly count the gauzes used during surgery; and (3) the medical intervention of the American doctors who examined Natividad in the United States of America.

The removal of all sponges used is part of a surgical operation, and when a physician or surgeon fails to remove a sponge he has placed in his patient’s body that should be removed as part of the operation, he thereby leaves his operation uncompleted and creates a new condition which imposes upon him the legal duty of calling the new condition to his patient’s attention, and endeavoring with the means he has at hand to minimize and avoid untoward results likely to ensue therefrom.

Here, Dr. Ampil did not inform Natividad about the missing two pieces of gauze. Worse, he even misled her that the pain she was experiencing was the ordinary consequence of her operation. Had he been more candid, Natividad could have taken the immediate and appropriate medical remedy to remove the gauzes from her body. To our mind, what was initially an act of negligence by Dr. Ampil has ripened into a deliberate wrongful act of deceiving his patient.

This is a clear case of medical malpractice or more appropriately, medical negligence. To successfully pursue this kind of case, a patient must only prove that a health care provider either failed to do something which a reasonably prudent health care provider would have done, or that he did something that a reasonably prudent provider would not have done; and that failure or action caused injury to the patient.

February 2, 2010 RESOLUTION of

PROFESSIONAL SERVICES, INC. vs. NATIVIDAD and ENRIQUE AGANA,G.R. No. 126297             January 31, 2007

NATIVIDAD (Substituted by her children MARCELINO AGANA III, ENRIQUE AGANA, JR., EMMA AGANA ANDAYA, JESUS AGANA, and RAYMUND AGANA)

and ENRIQUE AGANA, vs.JUAN FUENTES,G.R. No. 126467            January 31, 2007And

MIGUEL AMPIL, vs.NATIVIDAD AGANA and ENRIQUE AGANA, G.R. No. 127590            January 31, 2007CORONA, J.:

FACTS:Professional Services, Inc. (PSI) filed a

second motion for reconsideration urging referral thereof to the Court en banc and seeking modification of the decision dated January 31, 2007 and resolution dated February 11, 2008 which affirmed its vicarious and direct liability for damages to respondents Enrique Agana and the heirs of Natividad Agana (Aganas). Manila Medical Services, Inc. (MMSI),  Asian Hospital, Inc. (AHI), and Private Hospital Association of the Philippines (PHAP)  all sought to intervene in these cases  invoking the common ground that, unless modified, the assailed decision and resolution will jeopardize the financial viability of private hospitals and jack up the cost of  health care.

ISSUE:Whether or not Professional Services

Inc. has been erred to be held liable for the Negligence of Dr. Miguel Ampil.

HELD: YES, after gathering its thoughts on

the issues, this Court holds that PSI is liable to the Aganas, not under the principle of respondeat superior for lack of evidence of an employment relationship with Dr. Ampil but under the principle of ostensible agency for the negligence of Dr. Ampil and, pro hac vice, under the principle of corporate negligence for its failure to perform its duties as a hospital.While in theory a hospital as a juridical entity cannot practice medicine, in reality it utilizes doctors, surgeons and medical practitioners in the conduct of its business of facilitating medical and surgical treatment. **Where an employment relationship exists, the hospital may be held vicariously liable under Article 2176 in relation to Article 2180 of the Civil Code or the principle of respondeat superior. Even when no employment relationship exists but it is shown that the hospital holds out to the patient that the doctor is its agent, the hospital may still be vicariously liable under Article 2176 in relation to Article 1431 and Article 1869 of the Civil

Code or the principle of apparent authority. Moreover, regardless of its relationship with the doctor, the hospital may be held   directly liable to the patient for its own negligence or failure to follow established standard of conduct to which it should conform as a corporation.

**Under the "control test", an employment relationship exists between a physician and a hospital if the hospital controls both the means and the details of the process by which the physician is to accomplish his task.            As priorly stated, private respondents maintained specific work-schedules, as determined by petitioner through its medical director, which consisted of 24-hour shifts totaling forty-eight hours each week and which were strictly to be observed under pain of administrative sanctions.

**That petitioner exercised control over respondents gains light from the undisputed fact that in the emergency room, the operating room, or any department or ward for that matter, respondents' work is monitored through its nursing supervisors, charge nurses and orderlies. Without the approval or consent of petitioner or its medical director, no operations can be undertaken in those areas. For control test to apply, it is not essential for the employer to actually supervise the performance of duties of the employee, it being enough that it has the right to wield the power.

LAMBERT S. RAMOS,          - versus -C.O.L. REALTY CORPORATION,G.R. No. 184905 August 28, 2009Ynares-Santiago, J.:

FACTS:On or about 10:40 o’clock in the

morning of 8 March 2004, along Katipunan Avenue, Quezon City, a vehicular accident took place between a Toyota Altis Sedan bearing Plate Number XDN 210 (owned by C.O.L. Realty Corporation and driven by Aquilino Larin) and a Ford Expedition bearing Plate Number LSR 917 (owned by Lambert Ramos and driven by Rodel Ilustrisimo). A passenger of the sedan, one Estela Maliwat sustained injuries, she was immediately rushed to the hospital for treatment.

C.O.L. Realty averred that its driver, Aquilino, was slowly driving the Toyota Altis car at a speed of five to ten kilometers per hour along Rajah Matanda Street and has just

crossed the center lane of Katipunan Avenue when (Ramos’) Ford Espedition violently rammed against the car’s right rear door and fender.

Upon investigation, the Office of the City Prosecutor of Quezon City found probable cause to indict Rodel, the driver of the Ford Expedition, for Reckless Imprudence Resulting in Damage to Property.demanded from respondent reimbursement for the expenses incurred in the repair of its car and the hospitalization of Estela in the aggregate amount of P103,989.60.  The demand fell on deaf ears prompting (C.O.L. Realty) to file a Complaint for Damages based on quasi-delict before the Metropolitan Trial Court of Metro Manila (MeTC), Quezon City.

Ramos denied liability for damages insisting that it was the negligence of Aquilino, (C.O.L. Realty’s) driver, which was the proximate cause of the accident. Ramos asserted the sedan car crossed Katipunan Avenue from Rajah Matanda Street despite the concrete barriers placed thereon prohibiting vehicles to pass through the intersection. The MeTC rendered the Decision dated 1 March 2006 exculpating (Ramos) from liability.

ISSUE:Whether or not Ramos is solidarily

liable for the negligence of Rodel Ilustrisimo.HELD:

YES, What is clear to Us is that Aquilino recklessly ignored these barricades and drove through it. Without doubt, his negligence is established by the fact that he violated a traffic regulation.

However, it also declared Ramos liable vicariously for Rodel’s contributory negligence in driving the Ford Expedition at high speed along a busy intersection. We cannot exculpate Rodel from liability.

Having thus settled the contributory negligence of Rodel, this created a presumption of negligence on the part of Ramos. For the employer to avoid the solidary liability for a tort committed by his employee, an employer must rebut the presumption by presenting adequate and convincing proof that in the selection and supervision of his employee, he or she exercises the care and diligence of a good father of a family. Ramos’ driver was texting with his cellphone while running at a high speed and that the latter did not slow down albeit he knew that Katipunan Avenue was then undergoing repairs and that the road was barricaded with barriers. As the employer of Rodel, Ramos is solidarily liable for the quasi-delict committed by the former.

** This finds support in Article 2185 of the Civil Code: “Unless there is proof to the contrary, it is presumed that a person driving a motor vehicle has been negligent if at the time of the mishap, he was violating any traffic regulation.” Accordingly, there ought to be no question on (C.O.L. Realty’s) negligence which resulted in the vehicular mishap.

DY TEBAN TRADING, INC.,- versus -JOSE CHING AND/OR LIBERTY FOREST, INC. and CRESILITO M. LIMBAGA,[G.R. No. 161803, February 04, 2008] REYES, R.T., J.:

FACTS:On July 4, 1995, at around 4:45 a.m.,

Rogelio Ortiz, with helper Romeo Catamora, was driving a Nissan van owned by petitioner Dy Teban Trading, Inc. along the National Highway in Barangay Sumilihon, Butuan City, going to Surigao City. They were delivering commercial while a Joana Paula passenger bus was cruising on the opposite lane towards the van. In between the two vehicles was a parked prime mover with a trailer, owned by private respondent Liberty Forest, Inc. as the trailer suffered a tire blowout the night before. The driver Cresilito Limbaga, parked the prime mover askew occupying a substantial portion of the national highway, on the lane of the passenger bus. The prime mover was not equipped with triangular, collapsible reflectorized plates, the early warning device as substitute, Limbaga placed a banana trunk with leaves on the front and the rear portion of the prime mover to warn incoming motorists. It is alleged that Limbaga likewise placed kerosene lighted tin cans on the front and rear of the trailer.

To avoid hitting the parked prime mover , the incoming passenger bus swerved to the right, onto the lane of the approaching Nissan van. Ortiz saw two bright and glaring headlights and the approaching passenger bus. He pumped his break slowly, swerved to the left to avoid the oncoming bus but the van hit the front of the stationary prime mover. The passenger bus hit the rear of the prime mover. Ortiz and Catamora only suffered minor injuries. The Nissan van, however, became inoperable as a result of the incident.

On October 31, 1995, petitioner Nissan van owner filed a complaint for damages against prime mover owner and driver with the RTC in Butuan City. The Joana Paula passenger bus was not impleaded as defendant in the complaint.

ISSUE:Whether or not PrimeMover is liable

for the damages suffered by the Nissan VanHELD:

YES, Defendant Liberty Forest, Inc. did not exercise the diligence of a good father of a family in managing and running its business. The evidence on record shows that it failed to provide its prime mover and trailer with the required early warning devices with reflectors and it did not keep proper maintenance and condition of the prime mover and the trailer. The circumstances show that the trailer were provided with wornout tires and with only one (1) piece of spare tire.

We find that Limbaga was utterly negligent in parking the prime mover askew on the right side of the national highway. The vehicle occupied a substantial portion of the national road on the lane of the passenger bus. It is common sense that the skewed parking of the prime mover on the national road posed a serious risk to oncoming motorists. It was incumbent upon Limbaga to take some measures to prevent that risk, or at least minimize it.

We find that private respondent Liberty Forest, Inc. was utterly negligent in allowing a novice driver, like Limbaga, to operate a vehicle, such as a truck loaded with a bulldozer, which required highly specialized driving skills. The employer clearly failed to properly supervise Limbaga in driving the prime mover.

Limbaga was negligent in parking the prime mover on the national highway. Liberty Forest, Inc. was also negligent in failing to supervise Limbaga and in ensuring that the prime mover was in proper condition.

** Facts of the case reveal that when Ortiz, the driver of the truck, failed to give the Joana Paula bus the space on the road it needed, the latter vehicle scraped its rear right side on the protruded bulldozer blade and the impact threw the bus directly on the path of the oncoming truck. This made plaintiffs-appellants/appellees conclude that the Joana Paula bus occupied its lane which forced Ortiz, the driver of the truck, to swerve to its left and ram the front of the parked trailer.** To sustain a claim based on quasi-delict, the following requisites must concur: (a) damage suffered by plaintiff; (b) fault or negligence of defendant; and (c) connection of cause and effect between the fault or negligence of defendant and the damage incurred by plaintiff.

**The two (2) flat tires suffered by the trailer and these two (2) tires were attached to one of the two (2) I-beams or axles attached to the rear of the trailer which axle is very near but behind the other axle and with the location , it would have the other beam suffer the flat tires as it has to bear the brunt of weight of the D-8 bulldozer.

PHOENIX CONSTRUCTION, INC. and ARMANDO U. CARBONEL, - versus -INTERMEDIATE APPELLATE COURT and LEONARDO DIONISIO G.R. No. L-65295 March 10, 1987FELICIANO, J:

FACTS:In the early morning of 15 November

1975 - at about 1:30 a.m. Leonardo Dionisio was on his way home from a cocktails-and-dinner meeting with his boss, the general manager of a marketing corporation.Dionisio was driving his Volkswagen car and was proceeding down General Lacuna Street, when his car headlights (in his allegation) suddenly failed. He switched his headlights on "bright" and thereupon he saw a Ford dump truck looming some 2-1/2 meters away from his car. The dump truck, owned by and registered in the name of petitioner Phoenix Construction Inc. was parked on the right hand side of General Lacuna Street facing the oncoming traffic. in such a manner as to stick out onto the street, partly blocking the way of oncoming traffic. There were no lights nor any so-called "early warning" reflector devices set anywhere near the dump truck, front or rear.

The dump truck was parked askew, Dionisio claimed that he tried to avoid a collision by swerving his car to the left but it was too late and his car smashed into the dump truck. As a result of the collision, Dionisio suffered some physical injuries including some permanent facial scars, a "nervous breakdown" and loss of two gold bridge dentures. The dump truck had earlier that evening been driven home by petitioner Armando U. Carbonel, its regular driver, with the permission of his employer Phoenix, in view of work scheduled to be carried out early the following morning.

Dionisio commenced an action for damages in the Court of First Instance of Pampanga (which rendered judgment in favor of Dionisio and against Phoenix and Carbonel) basically claiming that the legal and proximate cause of his injuries was the negligent manner in which Carbonel had parked the dump truck entrusted to him by his employer Phoenix.

ISSUE: Whether or not Phoenix was liable for

the mishap that ensued.

HELD:

YES, Dionisio was negligent the night of the accident. He was hurrying home that night and driving faster than he should have been. Worse, he extinguished his headlights at or near the intersection of General Lacuna and General Santos Streets and thus did not see the dump truck that was parked askew and sticking out onto the road lane.chanrobles virtual law library

Nonetheless, we agree with the Court of First Instance and the Intermediate Appellate Court that the legal and proximate cause of the accident and of Dionisio's injuries was the wrongful - or negligent manner in which the dump truck was parked in other words, the negligence of petitioner Carbonel. That there was a reasonable relationship between petitioner Carbonel's negligence on the one hand and the accident and respondent's injuries on the other hand, is quite clear. Put in a slightly different manner, the collision of Dionisio's car with the dump truck was a natural and foreseeable consequence of the truck driver's negligence.

The truck driver's negligence was rather an indispensable and efficient cause. The collision between the dump truck and the private respondent's car would in any probability not have occurred had the dump truck not been parked askew without any warning lights or reflector devices. The improper parking of the dump truck created an unreasonable risk of injury for anyone driving. In our view, Dionisio's negligence, although later in point of time than the truck driver's negligence and therefore closer to the accident, was not an efficient intervening or independent cause.

We hold that private respondent Dionisio's negligence was "only contributory," that the "immediate and proximate cause" of the injury remained the truck driver's "lack of due care" and that consequently respondent Dionisio may recover damages though such damages are subject to mitigation by the courts

** There are four factual issues that need to be looked into: (a) whether or not private respondent Dionisio had a curfew pass valid

and effective for that eventful night; (b) whether Dionisio was driving fast or speeding just before the collision with the dump truck; (c) whether Dionisio had purposely turned off his car's headlights before contact with the dump truck or whether those headlights accidentally malfunctioned moments before the collision; and (d) whether Dionisio was intoxicated at the time of the accident.**"last clear chance" doctrine – The historical function of that doctrine in the common law was to mitigate the harshness of another common law doctrine or rule that of contributory negligence. The common law rule of contributory negligence prevented any recovery at all by a plaintiff who was also negligent, even if the plaintiff's negligence was relatively minor as compared with the wrongful act or omission of the defendant.

It permitted courts to grant recovery to a plaintiff who had also been negligent provided that the defendant had the last clear chance to avoid the casualty and failed to do so. Accordingly, it is difficult to see what role, if any, the common law last clear chance doctrine has to play in a jurisdiction where the common law concept of contributory negligence as an absolute bar to recovery by the plaintiff, has itself been rejected, as it has been in Article 2179 of the Civil Code of the Philippines.

MERCURY DRUG CORPORATION and ROLANDO J. DEL ROSARIO- versus -SPOUSES RICHARD HUANG and CARMEN HUANG, and STEPHEN HUANG,G.R. No. 172122 June 22, 2007PUNO, C.J.:

FACTS:Mercury Drug Corporation is the

registered owner of a six-wheeler 1990 Mitsubishi Truck with plate number PRE 641. It has in its employ petitioner Rolando J. del Rosario as driver. Richard and Carmen Huang are the parents of respondent Stephen Huang and own the red 1991 Toyota Corolla GLI Sedan with plate number PTT 775. These two vehicles figured in a road accident on December 20, 1996 at around 10:30 p.m. within the municipality of Taguig, Metro Manila.

Both were traversing the C-5 Highway, north bound, coming from the general direction of Alabang going to Pasig City.  The car was on the left innermost lane while the truck was on the next lane to its right, when the truck suddenly swerved to its left and slammed into

the front right side of the car.  The collision hurled the car over the island where it hit a lamppost, spun around and landed on the opposite lane. At the time of the accident, petitioner Del Rosario only had a Traffic Violation Receipt, his driver’s license had been confiscated because he had been previously apprehended for reckless driving.

The car, valued at P300,000.00, was a total wreck.  Respondent Stephen Huang sustained massive injuries to his spinal cord, head, face, and lung.  Despite a series of operations, respondent Stephen Huang is paralyzed for life from his chest down and requires continuous medical and rehabilitation treatment. 

ISSUE:Whether or not Del Rosario is liable for

the lifetime paralysis of Stephen Huang and if Mercury Drug is solidarily liable for the same.

HELD:YES, Del Rosario’s negligence as the

direct and proximate cause of the injuries suffered by respondent Stephen Huang.  Del Rosario failed to do what a reasonable and prudent man would have done under the circumstances, and it is highly improbable that the car swerved since it would not have leaped across the other lane if that would have occurred.

We now come to the liability of petitioner Mercury Drug as employer of Del Rosario. In the case of petitioner Del Rosario, however he took the driving tests and psychological examination when he applied for the position of Delivery Man, but not when he applied for the position of Truck Man.  

Further, no tests were conducted on the motor skills development, perceptual speed, visual attention, depth visualization, eye and hand coordination and steadiness of petitioner Del Rosario.  No NBI and police clearances were also presented.  Lastly, petitioner Del Rosario attended only three driving seminars .  In effect, the only seminar he attended before the accident which occurred in 1996 was held twelve years ago in 1984.

Petitioner Mercury Drug likewise failed to show that it exercised due diligence on the supervision and discipline over its employees. In fact, on the day of the accident, petitioner Del Rosario was driving without a license. 

**He was holding a TVR for reckless driving.  He testified that he reported the incident to

his superior, but nothing was done about it.  He was not suspended or reprimanded.  No disciplinary action whatsoever was taken against petitioner Del Rosario.  We therefore affirm the finding that petitioner Mercury Drug has failed to discharge its burden of proving that it exercised due diligence in the selection and supervision of its employee, petitioner Del Rosario. 

** It also appears that petitioner Mercury Drug does not provide for a back-up driver for long trips.  At the time of the accident, petitioner Del Rosario has been out on the road for more than thirteen hours, without any alternate.

JOSEPH SALUDAGA, - versus -FAR EASTERN UNIVERSITY and EDILBERTO C. DE JESUS in his capacity as President of FEU,[G.R. No. 179337, April 30, 2008] YNARES-SATIAGO, J.:

FACTS:Joseph Saludaga was a sophomore law

student of respondent Far Eastern University when he was shot by Alejandro Rosete, one of the security guards on duty at the school premises on August 18, 1996. He was rushed to FEU-Dr. Nicanor Reyes Medical Foundation (FEU-NRMF) due to the wound he sustained. Meanwhile, Rosete was brought to the police station where he explained that the shooting was accidental. He was eventually released considering that no formal complaint was filed against him. Salduga thereafter filed a complaint for damages against respondents on the ground that they breached their obligation to provide students with a safe and secure environment and an atmosphere conducive to learning.

Far Eastern University and Edilberto De Jesus(as president) in turn, filed a Third-Party Complaint against Galaxy Development and Management Corporation, the agency contracted by respondent FEU to provide security services within its premises and Mariano D. Imperial (Galaxy's President,) to indemnify them. On the other hand, Galaxy and Imperial filed a Fourth-Party Complaint against AFP General Insurance.

On November 10, 2004, the trial court rendered a decision in favor of petitioner, Respondents appealed to the Court of Appeals which rendered the assailed Decision.

Petitioner filed a Motion for Reconsideration which was denied hence, the instant petition.

ISSUES:1. Whether or not the school is liable for breach of contract2. Whether or not Far Eastern University is liable HELD:1. YES, It is settled that in culpa contractual, the mere proof of the existence of the contract and the failure of its compliance justify, prima facie, a corresponding right of relief. In the instant case, we find that, when petitioner was shot inside the campus by no less the security guard who was hired to maintain peace and secure the premises, there is a prima facie showing that respondents failed to comply with its obligation to provide a safe and secure environment to its students.

2. YES, the defense of Caso Fortuito cannot be sustained. After a thorough review of the records, we find that respondents failed to discharge the burden of proving that they exercised due diligence in providing a safe learning environment for their students. They failed to prove that they ensured that the guards assigned in the campus met the requirements stipulated in the Security Service Agreement. also failed to show that they undertook steps to ascertain and confirm that the security guards assigned to them actually possess the qualifications required in the Security Service Agreement.

Consequently, respondents' defense of force majeure must fail. In order for force majeure to be considered, respondents must show that no negligence or misconduct was committed that may have occasioned the loss. An act of God cannot be invoked to protect a person who has failed to take steps to forestall the possible adverse consequences of such a loss. One's negligence may have concurred with an act of God in producing damage and injury to another.

AMADO PICART,                   - versus -FRANK SMITH, JR., [G.R. No. L-12219, March 15, 1918]STREET, J.:

FACTS:On December 12, 1912, on the

Carlatan Bridge, at San Fernando, La Union. It appears that Amado Picart was riding on his

pony over said bridge. Before he had gotten half way across, Frank Smith, jr. approached from the opposite direction in an automobile, going at the rate of about ten or twelve miles per hour. As the defendant neared the bridge he saw a horseman on it and blew his horn to give warning of his approach. He continued his course and after he had taken the bridge he gave two more successive blasts, as it appeared to him that the man on horseback before him was not observing the rule of the road. Being perturbed by the novelty of the apparition or the rapidity of the approach, Picart pulled the pony closely up against the railing on the right side of the bridge instead of going to the left.

He says that the reason he did this was that he thought he did not have sufficient time to get over to the other side. The bridge is shown to have a length of about 75 meters and a width of 4.80 meters. As the automobile approached, the Smith guided it toward his left, that being the proper side of the road for the machine. In so doing the Smith assumed that the horseman would move to the other side. The pony had not as yet exhibited fright, and the rider had made no sign for the automobile to stop.

Seeing that the pony was apparently quiet, the defendant, instead of veering to the right while yet some distance away or slowing down, continued to approach directly toward the horse without diminution of speed. When Smith had gotten quite near, there being then no possibility of the horse getting across to the other side, the defendant quickly turned his car sufficiently to the right to escape hitting the horse alongside of the railing where it as then standing; but in so doing the automobile passed in such close proximity to the animal that it became frightened and turned its body across the bridge with its head toward the railing. In so doing, it as struck on the hock of the left hind leg by the flange of the car and the limb was broken. The horse fell and its rider was thrown off with some violence.

ISSUE: Whether or not Frank Smith is liable

for negligence causing the injuries to Amado Picart.HELD:

YES, a prudent man, placed in the position of the defendant, would in our opinion, have recognized that the course which he was pursuing was fraught with risk, and would therefore have foreseen harm to the horse and the rider as reasonable consequence of that course.

It will be noted that the negligent acts of the two parties were not contemporaneous, since the negligence of the defendant succeeded the negligence of the plaintiff by an appreciable interval. Under these circumstances the law is that the person who has the last fair chance to avoid the impending harm and fails to do so is chargeable with the consequences, without reference to the prior negligence of the other party.

** The test by which to determine the existence of negligence in a particular case may be stated as follows: Did the defendant in doing the alleged negligent act use that person would have used in the same situation? If not, then he is guilty of negligence.**The "last clear chance" rule of the law of negligence cannot be invoked where the negligence of the plaintiff is concurrent with that of the defendant. Again, if a traveler when he reaches the point of collision is in a situation to extricate himself and avoid injury, his negligence at that point will prevent a recovery.

when a traveler has reached a point where he cannot extricate himself and vigilance on his part will not avert the injury, his negligence in reaching that position becomes the condition and not the proximate cause of the injury and will not preclude a recovery.

GLAN PEOPLE'S LUMBER AND HARDWARE, GEORGE LIM, FABIO S. AGAD, FELIX LIM and PAUL ZACARIAS y INFANTE,                   - versus -INTERMEDIATE APPELLATE COURT, CECILIA ALFEREZ VDA. DE CALIBO, Minors ROYCE STEPHEN, JOYCE JOAN, JANISE MARIE, JACQUELINE BRIGITTE JOCELINE CORAZON, JULIET GERALDINE, JENNIFER JILL, all surnamed CALIBO, represented by their mother, CECILIA A. VDA. DE CALIBO, [G.R. No. 70493, May 18, 1989]NARVASA, J.:

FACTS:At about 1:45 in the afternoon of July

4,1979 Engineer Orlando T. Calibo, Roranes and Patos were on the jeep owned by the Bacnotan Consolidated Industries, Inc., with Calibo at the wheel, as it approached from the South Lizada Bridge going towards the direction of Davao City. At about that time, the cargo track, loaded with cement bags, GI sheets, plywood, driven by defendant Paul Zacariasbound for Glan, South Cotabato, had just crossed said bridge.

At about 59 yards after crossing the bridge, the cargo truck and the jeep collided as a consequence of which Engineer Calibo died while Roranes and Patos sustained physical injuries. Zacarias was unhurt. On November 27, 1979, the instant case for damages was filed by the surviving spouse and children of the late Engineer Calibo who are residents of Tagbilaran City against Paul Zacarias(the driver) and Felix S. Agad, George Lim and Felix Lim who are the co-owners of the Glan People's Lumber and Hardware which owns of the cargo truck.

For failure to file its answer to the third party complaint, third party defendant, which insured the cargo truck involved, was declared in default.

ISSUE:Whether or not the driver of Glan was

negligent in veering the truck thus holding Glan peoples lumber liable for the injuries.HELD:

NO, driver of the jeep had the last clear chance to avoid the accident, while still at that distance of thirty meters from the truck, by stopping in his turn or swerving his jeep away from the truck, either of which he had sufficient time to do while running at a speed of only thirty kilometers per hour. In those circumstances, his duty was to seize that opportunity of avoidance, not merely rely on a supposed right to expect, the truck to swerve and leave him a clear path.

**Paulino Zacarias was well within his own lane and had no duty to swerve out of the jeep's way **Calibo had been drinking shortly before the accident his negligence that was the proximate cause of the accident.

GEORGE MCKEE and ARACELI KOH MCKEE[parents of Jose Koh], petitioners,                   - versus -INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA MANALO, respondents.[G.R. No. L-68103, July 16, 1992]DAVIDE, JR., J.:

FACTS:In the morning of 8 January 1977, in

Pulong Pulo Bridge along MacArthur Highway, a head-on-collision took place between an International cargo truck, Loadstar (owned by JAIME TAYAG and ROSALINDA MANALO) and driven by Ruben Galang and a Ford Escort car driven by Jose Koh. The collision resulted in the deaths of Jose Koh, Kim Koh McKee and Loida Bondoc, and physical injuries to George Koh McKee, Christopher Koh McKee and Araceli Koh McKee, all passengers of the Ford Escort.

**[When the northbound car was about (10) meters away from the southern approach of the bridge, two (2) boys suddenly darted from the right side of the road and into the lane of the car. The boys were moving back and forth, unsure of whether to cross all the way to the other side or turn back. Jose Koh blew the horn of the car, swerved to the left and entered the lane of the truck; he then switched on the headlights of the car, applied the brakes and thereafter attempted to return to his lane. Before he could do so, his car collided with the truck. The collision occurred in the lane of the truck, which was the opposite lane, on the said bridge.]**On 1 March 1977, an Information charging Ruben Galang with the crime of "Reckless Imprudence Resulting to Multiple Homicide and Physical Injuries and Damage to Property" was filed with the trial court. On 1 October 1980, Judge Capulong rendered a decision against the accused Ruben Galang .**Accused Ruben Galang appealed the judgment of conviction to the Court of Appeals. On 4 October 1982, the respondent Court promulgated its decision affirming the conviction of Galang. **motion for reconsideration of the decision was denied by the respondent Court was filed with this Court; said petition was subsequently denied. A motion for its reconsideration was denied with finality in the Resolution of 20 April 1983. **On 29 November 1983, the Intermediate Appellate Court reversed and set aside the decision.

ISSUE:Whether or not Jose Koh was negligent

in swerving to the lane of the truck which may have contributed to the collision of the vehicles.

HELD:NO, any reasonable and ordinary

prudent man would have tried to avoid running over the two boys by swerving the car

away from where they were even if this would mean entering the opposite lane. Avoiding such immediate peril would be the natural course to take particularly where the vehicle in the opposite lane would be several meters away and could very well slow down, move to the side of the road and give way to the oncoming car. Moreover, under what is known as the emergency rule, "one who suddenly finds himself in a place of danger, and is required to act without time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence, if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence.

PHILIPPINE SCHOOL OF BUSINESS ADMINISTRATION, JUAN D. LIM, BENJAMIN P. PAULINO, ANTONIO M. MAGTALAS, COL. PEDRO SACRO and LT. M. SORIANO,                    - versus -COURT OF APPEALS, HON. REGINA ORDOÑEZ-BENITEZ, as Presiding Judge of Branch 47, Regional Trial Court, Manila, SEGUNDA R. BAUTISTA and ARSENIA D. BAUTISTA,[ G.R. No. 84698, February 4, 1992]PADILLA, J.:

FACTS:On 30 August 1985, a stabbing

incident caused the death of Carlitos Bautista while on the second-floor premises of the Philippine School of Business Administration (PSBA) prompted the parents of the deceased to file suit for damages against the said PSBA and its corporate officers. At the time of his death, Carlitos was enrolled in the third year commerce course at the PSBA. It was established that his assailants were not members of the school's academic community but were elements from outside the school.

ISSUE:Whether or not PSBA is liable for the

untimely demise of Carlitos Bautista due to their alleged negligence, recklessness and lack of security precautions, means and methods before, during and after the attack on the victim.

HELD:YES, For its part, the school

undertakes to provide the student with an education that would presumably suffice to equip him with the necessary tools and skills

to pursue higher education or a profession. When an academic institution accepts students for enrollment, there is established a contract between them, resulting in bilateral obligations which both parties are bound to comply with. 

** the school may still avoid liability by proving that the breach of its contractual obligation to the students was not due to its negligence, here statutorily defined to be the omission of that degree of diligence which is required by the nature of the obligation and corresponding to the circumstances of persons, time and place. 

** Article 2176 shows that obligations arising from quasi-delicts or tort, also known as extra-contractual obligations, arise only between parties not otherwise bound by contract, whether express or implied.

** Institutions of learning must also meet the implicit or "built-in" obligation of providing their students with an atmosphere that promotes or assists in attaining its primary undertaking of imparting knowledge. Certainly, no student can absorb the intricacies of physics or higher mathematics or explore the realm of the arts and other sciences when bullets are flying or grenades exploding in the air or where there looms around the school premises a constant threat to life and limb. Necessarily, the school must ensure that adequate steps are taken to maintain peace and order within the campus premises and to prevent the breakdown thereof.

SALDUGA **take from 1st part

FERNANDO LOPEZ, ET AL.,                   - versus -PAN AMERICAN WORLD AIRWAYS,[G.R. No. L-22415, March 30, 1966]BENGZON, J.P., J.:

FACTS:Then Senator Fernando Lopez made

reservations for first class accommodations from Tokyo to San Francisco on May 24, 1960 with PAN-AM through “Your Travel Guide agency” specifically by Delfin Faustino for his wife Maria his son-in-law and his daughter

Milagros which the head office confirmed reservations on March, 31 1960.

As soon as they arrived in Tokyo Senator Lopez requested Minister Busuego of the Philippine Embassy to contact PAN-AM's Tokyo office regarding their first class accommodations for that evening's flight. For the given reason that the first class seats therein were all booked up, however, PAN-AM's Tokyo office informed Minister Busuego that PAN-AM could not accommodate Senator Lopez and party in that trip as first class passengers.

Due to pressing engagements awaiting Senator Lopez and his wife, in the United States **[he had to attend a business conference in San Francisco the next day and she had to undergo a medical check-up in Mayo Clinic, Rochester, Minnesota, on May 28, 1960 and needed three days rest before that in San Francisco]They were constrained to take PAN-AM's flight from Tokyo to San Francisco as tourist passengers. Senator Lopez however made it clear, that they did so "under protest" and without prejudice to further action against the airline.

ISSUE:Whether or not Pan American Airlines

is liable for breach of contract and is thus amenable for damages caused.

HELD:YES, through its agents Pan American

Airlines cancelled the First class reservations by mistake and thereafter deliberately and intentionally withheld from plaintiffs or their travel agent the fact of said cancellation, letting them go on believing that their first class reservations stood valid and confirmed. In so misleading plaintiffs into purchasing first class tickets in the conviction that they had confirmed reservations for the same, when in fact they had none, defendant wilfully and knowingly placed itself into the position of having to breach its a foresaid contracts with plaintiffs should there be no last-minute cancellation by other passengers before flight time, as it turned out in this case. Such actuation of defendant may indeed have been prompted by nothing more than the promotion of its self-interest in holding on to Senator Lopez and party as passengers in its flight and foreclosing on their chances to seek the services of other airlines that may have been able to afford them first class accommodations. All the time, in legal contemplation such conduct already amounts to action in bad faith. For bad faith means a

breach of a known duty through some motive of interest or ill-will **The first class reservations of Senator Lopez and party were made on March 29, 1960 however, Mariano Herranz [PAN-AM's reservations employee] mistakenly cancelled all the seats that had been reserved, including those of Senator Lopez and party.

April 1960 Herranz discovered his mistake, upon seeing the reservation card newly prepared by his co-employee Pedro Asensi for Sen. Lopez and partyIt was then that Herranz sent another telex wire to the San Francisco head office, stating his error and asking for the reinstatement of the four (4) first class seats reserved for Senator Lopez and party ). San Francisco head office replied on April 22, 1960 that Senator Lopez and party are waitlisted and that said office is unable to reinstate them. Since the flight involved was still more than a month away and confident that reinstatement would be made, Herranz forgot the matter and told no one about it. Subsequently, on April 27, 1960, Armando Davila, PAN-AM's reservations employee working in the same Escolta office as Herranz, phoned PAN-AM's ticket sellers at its other office in the Manila Hotel, and confirmed the reservations of Senator Lopez and party.

** Jalbuena bought a first class ticket from PAN-AM on April 13, 1960; he confirmed it on April 15, 1960 as to the Tokyo-Hongkong flight of April 20, 1960; PAN-AM similarly confirmed it on April 20, 1960. At the airport he and another Oriental — Mr. Tung — were asked to step aside while other passengers - including "white" passengers — boarded PAN-AM's plane. Then PAN-AM officials told them that one of them had to stay behind. Since Mr. Tung was going all the way to London, Jalbuena was chosen to be left behind. PAN-AM's officials could only explain by saying there was "some mistake". Jalbuena thereafter wrote PAN-AM to protest the incident

YHT REALTY CORPORATION, ERLINDA LAINEZ and ANICIA PAYAM,                   - versus -THE COURT OF APPEALS and MAURICE McLOUGHLIN, [G.R. No. 126780, February 17, 2005]TINGA, J.:

FACTS:

McLoughlin, an Australian businessman-philanthropist, used to stay at Sheraton Hotel during his trips to the Philippines prior to 1984 when he met Tan.  Tan befriended McLoughlin by showing him around, introducing him to important people, accompanying him in visiting impoverished street children and assisting him in buying gifts for the children and in distributing the same to charitable institutions for poor children.  Tan convinced McLoughlin to transfer from Sheraton Hotel to Tropicana where Lainez, Payam and Danilo Lopez were employed.  Lopez served as manager of the hotel while Lainez and Payam had custody of the keys for the safety deposit boxes of Tropicana.  Tan took care of McLoughlin’s booking at the Tropicana where he started staying during his trips to the Philippines from December 1984 to September 1987.

On 30 October 1987, McLoughlin arrived from Australia and registered with Tropicana.  He rented a safety deposit box as it was his practice to rent a safety deposit box every time he registered at Tropicana in previous trips.  On 12 December 1987, before leaving for a brief trip to Hongkong, McLoughlin opened his safety deposit box with his key and with the key of the management and took therefrom the envelope containing Five Thousand US Dollars, the envelope containing Ten Thousand Australian Dollars and his passports and his credit cards.

When he arrived in Hongkong, he opened the envelope which contained Five Thousand US Dollars (US$5,000.00) and discovered upon counting that only Three Thousand US Dollars were enclosed.

After returning to Manila, he checked out of Tropicana on 18 December 1987 and left for Australia.  When he arrived in Australia, he discovered that the envelope with Ten Thousand US Dollars was short of Five Thousand US Dollars. He also noticed that the jewelry which he bought in Hongkong and stored in the safety deposit box upon his return to Tropicana was likewise missing, except for a diamond bracelet.

When McLoughlin came back to the Philippines on 4 April 1988, he asked Lainez if some money and/or jewelry which he had lost were found and returned to her or to the management.  However, Lainez told him that no one in the hotel found such things and none were turned over to the management.  He again registered at Tropicana and rented a safety deposit box.

The same incident happened, when McLoughlin discovered the loss, he immediately confronted Lainez and Payam who admitted that Tan opened the safety deposit box with the key assigned to him. Tan admitted that she had stolen McLoughlin’s key and was able to open the safety deposit box with the assistance of Lopez, Payam and Lainez. Lopez also told McLoughlin that Tan stole the key assigned to McLoughlin while the latter was asleep.

ISSUE:Whether or not YHT corporation is

liable for the malfeasance which caused injury to McLoughlin.

HELD:YES, Payam and Lainez, who were

employees of Tropicana, had custody of the master key of the management when the loss took place.  In fact, they even admitted that they assisted Tan on three separate occasions in opening McLoughlin’s safety deposit box.

Tropicana had prior knowledge that a person aside from the registered guest had access to the safety deposit box.  Yet the management failed to notify McLoughlin of the incident and waited for him to discover the taking before it disclosed the matter to him.  Therefore, Tropicana should be held responsible for the damage suffered by McLoughlin by reason of the negligence of its employees.The management should have guarded against the occurrence of this incident considering that Payam admitted in open court that she assisted Tan three times in opening the safety deposit box of McLoughlin while he was still asleep.Under Article 1170 of the New Civil Code, those who, in the performance of their obligations, are guilty of negligence, are liable for damages. Art Article 2180 states that owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions.

**The issue of whether the “Undertaking For The Use of Safety Deposit Box” executed by McLoughlin is tainted with nullity presents a legal question appropriate for resolution in this petition.  Notably the same is null and void. Art. 2003. The hotel-keeper cannot free himself from responsibility by posting notices to the effect that he is not liable for the articles brought by the guest. Any stipulation between the hotel-keeper and the guest

whereby the responsibility of the former as set forth in Articles 1998 to 2001 is suppressed or diminished shall be void.

PRECIOLITA V. CORLISS,                    - versus -THE MANILA RAILROAD CO., [G.R. No. L-21291, March 28, 1969]FERNANDO, J.:

FACTS:Ralph W. Corliss, was an air police of

the Clark Air Force Base; that at the time of the accident, he was driving the fatal jeep was then returning in said jeep, together with a P.C. soldier, to the Base. That at the time of the accident, the jeep coming towards the Base slowed down before reaching the crossing, that it made a brief stop but that it did not stop completely. The train coming from the direction of San Fernando and that he heard a warning but that it was not sufficient enough to avoid the accident. The jeep Ralph Corliss was driving collided with the locomotive of Manila Railroad Company, close to midnight on the evening of Feb 21, 1957, at the railroad crossing in Balibago, Angeles, Pampanga, in front of the Clark Air Force Base.

At the time crossing bars have not been put down and there was no guard at the gate-house, and that Teodorico Capili, who drove the engine, was not qualified to do so at the time of the accident.

ISSUE:Whether or not Manila Railroad

Company is liable for the damages caused in the mishap.

HELD:NO, Ralph Corliss was so sufficiently

warned in advance of the oncoming train that it was incumbent upon him to avoid a possible accident — and this consisted simply in

stopping his vehicle before the crossing and allowing the train to move on. He was knowledgeable and familiar with the location and nature of the rail tracks that it cannot be imputed to Manila Railroad despite the lack of warnings Corliss must have been more cautious.

** Considering the purposes and the general methods adopted for the management of railroads and railroad trains, we think it is incumbent upon one approaching a railroad crossing to use all of his faculties of seeing and hearing. He should approach a railroad crossing cautiously and carefully. He should look and listen and do everything that a reasonably prudent man would do before he attempts to cross the track.

MACARIO TAMARGO, CELSO TAMARGO and AURELIA TAMARGO,                   - versus -HON. COURT OF APPEALS, THE HON. ARISTON L. RUBIO, RTC Judge, Branch 20, Vigan, Ilocos Sur; VICTOR BUNDOC; and CLARA BUNDOC, respondents.[ G.R. No. 85044, June 3, 1992]FELICIANO, J.:

FACTS:On 20 October 1982, Adelberto

Bundoc, then a minor of 10 years of age, shot Jennifer Tamargo with an air rifle causing injuries which resulted in her death. Accordingly, a civil complaint for damages was filed with the Regional Trial Court, Vigan, Ilocos Sur, by Macario Tamargo, Jennifer's adopting parent, and petitioner spouses Celso and Aurelia Tamargo, Jennifer's natural parents against spouses Victor and Clara Bundoc, Adelberto's natural parents with whom he was living at the time of the tragic incident.

ISSUE:Whether or not Adelberto Bundoc's

voluntary act of shooting Jennifer Tamargo gave rise to liability on quasi-delict against him. as Article 2176 of the Civil Code provides.

HELD:YES, provided that the civil liability

upon the father and, in case of his death or incapacity, the mother, for any damages that may be caused by a minor child who lives with them according to Article 2180 of the Civil Code. The shooting of Jennifer by Adelberto with an air rifle occured when parental authority was still lodged in respondent Bundoc spouses, the natural parents of the minor Adelberto.

LIBI

SOFIA M. GUILLANG,                   - versus -RODOLFO BEDANIA                                      and RODOLFO DE SILVA,                                                              [G.R. No. 162987, May 21, 2009]CARPIO, J.:

FACTS:On 25 October 1994, at about 5:45 in

the afternoon, Genaro M. Guillang was driving

his brand new Toyota Corolla GLI sedan along Emilio Aguinaldo Highway in Cavite.   Rodolfo A. Bedania was driving a ten-wheeler Isuzu cargo truck towards Tagaytay City.  The truck was owned by respondent Rodolfo de Silva. Along the highway and the road leading to the Orchard Golf Course, Bedania negotiated a U-turn.  When the truck entered the opposite lane of the highway, Genaro’s car hit the right portion of the truck.  The truck dragged Genaro’s car some five meters to the right of the road.          As a consequence, all the passengers of the car were rushed to the De La Salle University Medical Center in Dasmariñas, Cavite for treatment.  Because of severe injuries, Antero was later transferred to the Philippine General Hospital.  However, on 3 November 1994, Antero died due to the injuries he sustained from the collision. The car was a total wreck while the truck sustained minor damage. On 24 April 1995, petitioners Genaro, Llanillo, Dignadice, and the heirs of Antero instituted a complaint for damages based on quasi-delict against respondents Bedania and de Silva.

ISSUE:Whether or not Bedania was grossly

negligent for recklessly maneuvering the truck by making a sudden U-turn in the highway without due regard to traffic rules and the safety of other motorists. 

HELD:YES, there is a presumption that a

person driving a motor vehicle has been negligent if at the time of the mishap, he was violating any traffic regulation. In this case, the trial court found that the Traffic Accident Investigation Report showed that the truck committed a traffic violation by executing a U-turn without signal lights. .  The trial court added that Bedania violated another traffic rule when he abandoned the victims after the collision. Bedania was grossly negligent in his driving and held him liable for damages.

Clearly, Bedania’s negligence was the proximate cause of the collision which claimed the life of Antero and his companions. The cause of the collision is traceable to the negligent act of Bedania for if the U-turn was executed with the proper precaution, the mishap in all probability would not have happened.  The sudden U-turn of the truck without signal lights posed a serious risk to oncoming motorists.   Bedania failed to prevent or minimize that risk.  The truck’s sudden U-turn triggered a series of events that

led to the collision and, ultimately, to the death of Antero and the injuries of petitioners.CORINTHIAN GARDENS ASSOCIATION, INC.,PETITIONER,                   - versus -SPOUSES REYNALDO AND MARIA LUISA TANJANGCO, AND SPOUSES FRANK AND TERESITA CUASO, RESPONDENTS.[G.R. No. 160795, June 27, 2008] NACHURA, J.:

FACTS:Reynaldo and Maria Luisa Tanjangco

own Lots 68 and 69 located at Corinthian Gardens Subdivision, Quezon City, which is managed by petitioner Corinthian Gardens Association, Inc. ). On the other hand, Frank and Teresita Cuaso own Lot 65 which is adjacent to the Tanjangcos' lots.

Before the Cuasos constructed their house on Lot 65, a relocation survey was necessary. As Geodetic Engineer Democrito De Dios conducted all the previous surveys for the subdivision's developer, Corinthian referred Engr. De Dios to the Cuasos. Before, during and after the construction of the said house, Corinthian conducted periodic ocular inspections in order to determine compliance with the approved plans pursuant to the Manual of Rules and Regulations of Corinthian. Unfortunately, after the Cuasos constructed their house employing the services of C.B. Paraz Construction Co., Inc. build their perimeter fence encroached on the Tanjangcos' Lot 69 by 87 square meters.

No amicable settlement was reached between the parties. Thus, the Tanjangcos demanded that the Cuasos demolish the perimeter fence but the latter failed and refused, prompting the Tanjangcos to file with the RTC a suit against the Cuasos for Recovery of Possession with Damages.** The Cuasos ascribed negligence to C.B. Paraz for its failure to ascertain the proper specifications of their house, and to Engr. De Dios for his failure to undertake an accurate relocation survey, thereby, exposing them to litigation. The Cuasos also faulted Corinthian for approving their relocation survey and building plans without verifying their accuracy and in making representations as to Engr. De Dios' integrity and competence. The Cuasos alleged that had Corinthian exercised diligence in performing its duty, they would not have been involved in a boundary dispute with the Tanjangcos. Thus, the Cuasos opined that Corinthian should also be held answerable for any damages that they might incur as a result of such construction.

ISSUE:

Whether or not the Corinthian Garden’s Association is liable for negligence, in approving the building plan and whether or not it acted in good faith in doing so.

HELD:YES, Corinthian cannot and should not

be allowed to justify or excuse its negligence by claiming that its approval of the Cuasos' building plans was only limited to a so-called "table inspection and not actual site measurement. Corinthian's failure to prevent the encroachment of the Cuasos' perimeter wall into Tanjangcos' property - despite the inspection conducted - constitutes negligence and, at the very least, contributed to the injury suffered by the Tanjangcos.

MERCURY DRUG CORPORATION AND AURMELA GANZON,                   - versus -RAUL DE LEON, [G.R. No. 165622, October 17, 2008] REYES, R.T., J.:

FACTS:On October 17, 1999, Raul T. De Leon

noticed that his left eye was reddish. He also had difficulty reading. On the same evening, he met a friend for dinner at the Foohyui Restaurant.  The same friend happened to be a doctor, Dr. Charles Milla, and had just arrived from abroad De Leon consulted Dr. Milla about his irritated left eye. Dr. Milla prescribed the drugs "Cortisporin Opthalmic" and "Ceftin" to relieve his eye problems. Before heading to work the following morning, De Leon went to the Betterliving, Paranaque branch of Mercury Drug Store Corporation to buy the prescribed medicines. He showed his prescription to petitioner Aurmela Ganzon, a pharmacist assistant. Subsequently, he paid for and took the medicine handed over by Ganzon.

Instead of relieving his irritation, respondent felt searing pain. He immediately rinsed the affected eye with water, but the pain did not subside, only then did he discover that he was given the wrong medicine, "Cortisporin Otic Solution.” De Leon returned to the same Mercury Drug branch, with his left eye still red and teary. When he confronted

Ganzon why  he  was  given ear drops, instead of the prescribed eye drops, she did not apologize and instead brazenly replied that she was unable to fully read the prescription. De Leon wrote Mercury Drug, through its president, Ms. Vivian K. Askuna, about the day's incident which did not merit any response. Instead, two sales persons went to his office and informed him that their supervisor was busy with other matters. Having been denied his simple desire for a written apology and explanation, De Leon filed a complaint for damages against Mercury Drug.ISSUE:

Whether or not Mercury Drug is liable for the injuries suffered by Raul De Leon. HELD:

YES, The proximate cause of the ill fate of De Leon was defendant Aurmela Ganzon's negligent exercise of said discretion. She gave a prescription drug to a customer who did not have the proper form of prescription, she did not take a good look at said prescription, she merely presumed because it was the only one available in the market and she further presumed that by merely putting the drug by the counter wherein plaintiff looked at it, paid and took the drug without any objection meant “he understood what he was buying.” Mercury Drug and Ganzon can not exculpate themselves from any liability.  As active players in the field of dispensing medicines to the public, the highest degree of care and diligence is expected of them.

In cases where an injury is caused by the negligence of an employee, there instantly arises a presumption of law that there has been negligence on the part of the employer, either in the selection or supervision of one's employees. Mercury Drug and Ganzon have similarly failed to live up to high standard of diligence expected of them as pharmacy professionals.  They were grossly negligent in dispensing ear drops instead of the prescribed eye drops to De Leon.  Worse, they have once again attempted to shift the blame to their victim by underscoring his own failure to read the label.

MERCURY DRUG CORPORATION,                    - versus -SEBASTIAN M. BAKING, [G.R. No. 156037, May 28, 2007]SANDOVAL-GUTIERREZ, J.:

FACTS:

On November 25, 1993, Sebastian M. Baking, went to the clinic of Dr. Cesar Sy for a medical check-up. On the following day, after undergoing an ECG, blood, and hematology examinations and urinalysis, Dr. Sy found that respondent’s blood sugar and triglyceride were above normal levels. Dr. Sy then gave respondent two medical prescriptions – Diamicron for his blood sugar and Benalize tablets for his triglyceride.

Sebastian Baking went to the Alabang branch of Mercury Drug and presented his prescription for Diamicron, which the pharmacist misread as Dormicum. Baking was given a potent sleeping tablet, instead of medicines to stabilize his blood sugar. Unaware that what was given to him was the wrong medicine, took one pill of Dormicum on three consecutive days. On the third day of taking the wrong medicine,  Baking figured in  a vehicular accident as he fell asleep while driving.

ISSUE:Whether or not Mercury Drug is liable

for negligence in providing/selling drugs to Sebastian Baking.

HELD:YES, Considering that a fatal mistake

could be a matter of life and death for a buying patient, the said employee should have been very cautious in dispensing medicines.  She should have verified whether the medicine she gave respondent was indeed the one prescribed by his physician.  The care required must be commensurate with the danger involved, and the skill employed must correspond with the superior knowledge of the business which the law demands.** In cases where an injury is caused by the negligence of an employee, there instantly arises a presumption of law that there has been negligence on the part of the employer, either in the selection or supervision of one's employees.