214687189-Torts-Damages-Reviewer.txt

8/18/2019 214687189-Torts-Damages-Reviewer.txt

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Block B2015 Review Operations!

! TORTS & DAMAGES! !Prof. Rommel J. Casis!1st Semester, AY 2012-2013!

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Notes!Unless otherwise indicated, all provisions of law mentioned or cited are from the New Civil Code of the Philippines.!

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Only the relevant conceptual discussions in the cases assigned in the Conceptual Framework section of the course outline were directly quoted in this reviewer.This is so since the efforts to make a reviewer only commenced when the class started discussing the Negligence section of the course outline. In any case, most of the cases assigned were discussed in subsequent sections of the course. As such, for review of those cases, you may refer to said sections.! As for the italicized cases in the course outline, direct quotations were made. Most of them were also discussed in other parts of the outline anyway, so proceed accordingly.! Under res ipsa loquitur, the pertinent discussions in the cases were copied under the corresponding headings. The reviewer entries made for the cases are placed after the quotations from the cases.! The Prosser & Keeton citations are abbreviated and only appears in the conceptual framework section of the reviewer. Anattempt to ll in the citations in the syllabus. It failed. Besides, the application of the principles enunciated therein in this jurisdiction is questionable, as they were developed from and for common law jurisdiction.! The "Spouses" in all case titles were deleted. This has nothing to do with the Committee's view of m

arriage, except, of course, Robert's. He plays with girls. You know that. Beware!! There are a lot of entries without the Notes eld. This means that a lot of people did not ll them up online.! The provisions always come rst in each section. Remember, code is king. Next are conceptual discussions in italicized cases. Finally, the cases, also known as your reviewer entries, are laid out.! This reviewer was formatted in an iPad 2. And yes, it was not easy.! Good luck!!

B2015 Academics Committee! October 2012


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B2015 Review Operations

TORT & QUASI-DELICT

Torts & Damages

Conceptual Framework!

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CONCEPT OF TORT! In Common Law! Etymology! The word is derived from the Latin "tortus" or "twisted." [Prosser & Keeton]! "Tort" is found in the French language, and was at one time in common use in English as a general synonym for "wrong."[Ibid.]! Definition! Broadly speaking, a tort is a civil wrong, other than breach of contract, for which the court will provide a remedy in the form of an action for damages. [Ibid.]! In Philippine Law! Existence! Article 1902, OCC. Any person who by an act or omission causes damage to another by his fault or negligence shall be liable for the damage so done.! Article 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called quasi-delict xxx.!

1. A duty, or obligation, recognized by law, requiring the person to conform toa certain standard of conduct, for the protection of others against unreasonable

risks.! 2. A failure on the person's part to conform to the standard required:a breach of duty.! 3. A reasonably close causal connection between the conduct and the resulting injury.! 4. Actual loss or damage resulting to the interests of another. [Prosser & Keeton]! Thus, the elements of an actionable conduct are: 1) duty, 2) breach, 3) injury, and 4) proximate causation. [Garcia v. Salvador, 2007]! To successfully prosecute an action anchored on torts, three elements must be present, viz: (1) duty (2) breach (3) injury and proximate causation. [Ocean Builders v. Cubacub, 2011]! The Purpose of Tort Law! There remains a body of law which is directed toward the compensation of individuals, rather than the public, for losses which they have suffered within the scope of the legally recognized interest generally, rather than one interest only, where the law considers that compensation is required. This is the law of torts.! The law of torts, then,is concerned with the allocation of losses arising out of human activities; and

since these cover a wide scope, so does this branch of the law. xxx The purposeof the law of torts is to adjust these losses, and to afford compensation for injuries sustained by one person as the result of the conduct of another. [Prosser & Keeton]! CONCEPT OF QUASI-DELICT!

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Scope! Definition! Essentially, "tort" consists in the violation of a right given or the omission of a duty imposed by law. Simply stated, tort is a breach of a legal duty. [Naguiat v. NLRC, 1997]! A tort is a wrong, a tortious act which has been defined as the commission or omission of an act by one, without right, wh

ereby another receives some injury, directly or indirectly, in person, property, or reputation. There are cases in which it has been stated that civil liability in tort is determined by the conduct and not by the mental state of the tortfeasor, and there are circumstances under which the motive of the defendant has been rendered immaterial. The reason sometimes given for the rule is that otherwise, the mental attitude of the alleged wrongdoer, and not the act itself, would determine whether the act was wrongful. Presence of good motive, or rather, the absence of an evil motive, does not render lawful an act which is otherwise an invasion of another's legal right; that is, liability in tort is not precluded by the fact that defendant acted without evil intent. [Vinzons-Chato v. Fortune, 200


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7]! Elements! The traditional formula for the elements necessary to such a cause of action may be stated briefly as follows:! " of "50 1

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Historical Background! The individuality of cuasi-delito or culpa extra-contractual looms clears and unmistakable." This legal institution is of ancient lineage, one of its early ancestors being the Lex Aquilia in the Roman Law." In fact, in Spanish legal terminology, this responsibility is often referred to as culpa aquiliana." The Partidas also contributed to the genealogy of the present fault or negligence under the Civil Code xxx.! The distinctive nature of cuasi-delitossurvives in the Civil Code. According to Article 1089, one of the five sources of obligations is this legal institution of cuasi-delito or culpa extra-contractual xxx. Then Article 1093 provides that this kind of obligation shall be governed by Chapter II of Title XVI of Book IV, meaning Articles 1902-1910. This portion of the Civil Code is exclusively devoted to the legal institution of culpa aquiliana. [Barredo v. Garcia, 1942]! Nature! Article 1089, OCC. Obligations arisefrom law, from contracts and quasi-contracts, and from acts and omissions whichare unlawful or in which any kind of fault or negligence intervenes.! Article 1157. Obligations arise from:! (1) Law;!

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B2015 Review Operations (2) Contracts;! (3) Quasi-contracts;! (4) Acts or omissions punished by law; and! (5) Quasi-delicts.!

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Torts & Damages

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Governing Provisions! Article 1162. Obligations derived from quasi-delicts shall be governed by the provisions of Chapter 2, Title XVII of this Book, and by special laws.! Definition! Article 1902, OCC. Any person who by an act or omissioncauses damage to another by his fault or negligence shall be liable for the damage so done.! Article 2176. Whoever by act or omission causes damage to another,there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called quasi-delict xxx.!

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Scope! Intentional acts! Article 2176. Whoever by act or omission causes damageto another, there being fault or negligence, is obliged to pay for the damage do

ne. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called quasi-delict xxx.! As Manresa says the liability arising from extra-contractual culpa is always based upon a voluntary act or omission which, without willful intent, but by mere negligence or inattention, has caused damage to another. [Cangco v. Manila Railroad, 1918]! Contrary to an immediate impression one might get upon a reading of the foregoing excerpts from theopinion in Garcia - that the concurrence of the Penal Code and the Civil Code therein referred to contemplate only acts of negligence and not intentional voluntary acts - deeper reflection would reveal that the thrust of the pronouncementstherein is not so limited, but that in fact it actually extends to fault or culpa." This can be seen in the reference made therein to the Sentence of the Supreme Court of Spain of February 14, 1919, supra, which involved a case of fraud orestafa, not a negligent act." Indeed, Article 1093 of the Civil Code of Spain, i

n force here at the time of Garcia, provided textually that obligations "which are derived from acts or omissions in which fault or negligence, not punishable by law, intervene shall be the subject of Chapter II, Title XV of this book (which refers to quasi-delicts.)" And it is precisely the underlined qualification, "not punishable by law", that Justice Bocobo emphasized could lead to an undesirable construction or interpretation of the letter of the law that "killeth, rather than the spirit that giveth life" xxx. And so, because Justice Bocobo was Chairman of the Code Commission that drafted the original text of the new Civil Code, it is to be noted that the said Code, which was enacted " of "50 2

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after the Garcia doctrine, no longer uses the term, "not punishable by law," the

reby making it clear that the concept of culpa aquiliana includes acts which are criminal in character or in violation of the penal law, whether voluntary or negligent. [Elcano v. Hill, 1977]! Article 2176, where it refers to "fault or negligence," covers not only acts "not punishable by law" but also acts criminal incharacter, whether intentional and voluntary or negligent. [Ibid.; Andamo v. IAC, 1990]! Article 2176 xxx is limited to negligent acts or omissions and excludes the notion of willfulness or intent. Quasi-delict, known in Spanish legal treatises as culpa aquiliana, is a civil law concept while torts is an Anglo-American or common law concept. Torts is much broader than culpa aquiliana because it includes not only negligence, but intentional criminal acts as well such as assaul


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t and battery, false imprisonment and deceit. In the general scheme of the Philippine legal system envisioned by the Commission responsible for drafting the New Civil Code, intentional and malicious acts, with certain exceptions, are to begoverned by the Revised Penal Code while negligent acts or omissions are to be covered by Article 2176 of the Civil Code. [Baksh v. CA, 1993]! Damage to property! The concept of quasi-delict, as enunciated in Article 2176 of the Civil Code, is so broad that it includes not only injuries to persons but also damage to property. It makes no distinction between "damage to persons" on the one hand and"damage to property" on the other. Indeed, the word "damage" is used in two concepts:" the "harm" done and "reparation" for the harm done. And with respect to "harm" it is plain that it includes both injuries to person and property since "harm" is not limited to personal but also to property injuries."In fact, examples of quasi-delict in the law itself include damage to property. [Cinco v. Canonoy, 1979]!

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Elements! Article 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such faultor negligence, if there is no pre-existing contractual relation between the part

ies, is called quasi-delict xxx.! All the elements of a quasi-delict are present, to wit:" (a) damages suffered by the plaintiff; (b) fault or negligence of the defendant, or some other person for whose acts he must respond; and (c) the connection of cause and effect between the fault or negligence of the defendant and the damages incurred by the plaintiff. [Andamo v. IAC, 1990]!

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RELATIONSHIP BETWEEN TORT AND QUASI-DELICT! Quasi-delict, as defined in Article2176 of the Civil Code, (which is known in Spanish legal treatises as culpa aquiliana, culpa extra-contractual or cuasi delitos) is homologous but not identical

to tort under the common law, which includes not only negligence, but also intentional criminal acts, such as


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assault and battery, false imprisonment, and deceit. [CocaCola Bottlers v. CA, 1993]!

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TORT, QUASI-DELICT, AND DELICT! Distinctions! A tort is not the same thing as acrime, although the two sometimes have many features in common. The distinctionbetween them lies in the interests affected and the remedy afforded by law. A crime is an offense against the public at large, for which the state, as the representative of the public, will bring proceedings in the form of a criminal prosecution. [Prosser & Keeton]! The civil action for a tort, on the other hand, is commenced and maintained by the injured person, and its primary purpose is to compensate for the damage suffered, at the expense of the wrongdoer. [Ibid.]! Authorities support the proposition that a quasi-delict or "culpa aquiliana" is a separate legal institution under the Civil Code, with a substantivity all its own, and individuality that is entirely apart and independent from a delict or crime.[Barredo v. Garcia, 1942]! Some of the differences xxx are:! (1) That crimes affect the public interest, while cuasidelitos are only of private concern.! (2) Th

at, consequently, the Penal Code punishes or corrects the criminal act, while the Civil Code, by means of indemnification, merely repairs the damage.! (3) Thatdelicts are not as broad as quasi-delicts, because the former are punished onlyif there is a penal law clearly covering them, while the latter, cuasi-delitos,include all acts in which "any kind of fault or negligence intervenes."" However, it should be noted that not all violations of the penal law produce civil responsibility, such as begging in contravention of ordinances, violation of the game laws, infraction of the rules of traffic when nobody is hurt. [Ibid.]! [T]o find the accused guilty in a criminal case, proof of guilt beyond reasonable doubt is required, while in a civil case, preponderance of evidence is sufficient tomake the defendant pay in damages. [Ibid.]! [T]o hold that there is only one way to make, defendant's liability effective, and that is, to sue the driver and exhaust his (the latter's) property first, would be tantamount to compelling the p

laintiff to follow a devious and cumbersome method of obtaining relief. True, there is "such a remedy under our laws, but there is also a more expeditious way,which is based on the primary and direct responsibility of the defendant under Article 1903 of the Civil Code. [Ibid.]!

responsibility for fault or negligence under Articles 1902 to 1910 of the CivilCode. [Ibid.]! [T]he Revised Penal Code in Article 365 punishes not only reckless but also simple negligence. If we were to hold that Articles 1902 to 1910 of the Civil Code refer only to fault or negligence not punished by law, according to the literal import of Article 1093 of the Civil Code, the legal institution of culpa aquiliana would have very little scope and application in actual life. Death or injury to persons and damage to property through any degree of negligence ± even the slightest ± would have to be indemnified only through the principle of c

ivil liability arising from a crime. In such a state of affairs, what sphere would remain for cuasi-delito or culpa aquiliana? [Ibid.]! [B]ecause of the broad sweep of the provisions of both the Penal Code and the Civil Code on this subject, which has given rise to the overlapping or concurrence of spheres already discussed, and for lack of understanding of the character and efficacy of the action for culpa aquiliana, there has grown up a common practice to seek damages onlyby virtue of the civil responsibility arising from a crime, forgetting that there is another remedy, which is by invoking Articles 1902-1910 of the Civil Code.[Ibid.]! Briefly stated, We here hold, in reiteration of Garcia, that culpa aquiliana includes voluntary and negligent acts which may be punishable by law. [And


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amo v. IAC, 1990]! Stated otherwise, victims of negligence or their heirs have a choice between an action to enforce the civil liability arising from culpa criminal under Article 100 of the Revised Penal Code, and an action for quasi-delict (culpa aquiliana) under Articles 2176 to 2194 of the Civil Code. If, as here, the action chosen is for quasi-delict, the plaintiff may hold the employer liable for the negligent act of its employee, subject to the employer's defense of exercise of the diligence of a good father of the family. On the other hand, if the action chosen is for culpa criminal, the plaintiff can hold the employer subsidiarily liable only upon proof of prior conviction of its employee. [LG Foods v.Philadelfa, 2006]!

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CULPA AQUILIANA AND CULPA CONTRACTUAL! Distinctions! Source! Every legal obligation must of necessity be extracontractual or contractual. Extra-contractual obligation has its source in the breach or omission of those mutual duties which civilized society imposes upon its members, or which arise from these relations, other than contractual, of certain members of society to others, generally embraced in the concept of status. The legal rights of each member of society constitute the measure of the corresponding legal duties, mainly negative in character, which the existence of those rights imposes upon all other members of society. The breach of these general duties whether due to willful intent or to mere inattention, if productive of injury, gives rise to an obligation to indemnify the injured party. The

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Intersections! Specifically they show that there is a distinction between civilliability arising from criminal negligence (governed by the Penal Code) and responsibility for fault or negligence under Articles 1902 to 1910 of the Civil Code, and that the same negligent act may produce either a civil liability arising from a crime under the Penal Code, or a separate " of "50 3


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fundamental distinction between obligations of this character and those which arise from contract, rests upon the fact that in cases of non-contractual obligation it is the wrongful or negligent act or omission itself which creates the vinculum juris, whereas in contractual relations the vinculum exists independently of the breach of the voluntary duty assumed by the parties when entering into the contractual relation. [Cangco v. Manila Railroad, 1918]! Burden of proof! Whenthe source of the obligation upon which plaintiff's cause of action depends is a negligent act or omission, the burden of proof rests upon plaintiff to prove the negligence ± if he does not his action fails. But when the facts averred show acontractual undertaking by defendant for the benefit of plaintiff, and it is alleged that plaintiff has failed or refused to perform the contract, it is not necessary for plaintiff to specify in his pleadings whether the breach of the contract is due to wilful fault or to negligence on the part of the defendant, or ofhis servants or agents. Proof of the contract and of its nonperformance is sufficient prima facie to warrant a recovery. [Ibid.]! "As a general rule, it is logical that in case of extracontractual culpa, a suing creditor should assume the burden of proof of its existence, xxx while on the contrary, in a case of negligence which presupposes the existence of a contractual obligation, if the creditor

shows that it exists and that it has been broken, it is not necessary for him to prove the negligence." [Ibid.]! In such a situation [a contract exists], a default on, or failure of compliance with, the obligation xxx gives rise to a presumption of lack of care and corresponding liability on the part of the contractual obligor the burden being on him to establish otherwise. [FGU Insurance v. Sarmiento, 2002]! Petitioner's civil action against the driver can only be based on culpa aquiliana, which, unlike culpa contractual, would require the claimant for damages to prove negligence or fault on the part of the defendant. [Ibid.]! Applicability of doctrine of proximate cause! The doctrine of proximate cause is applicable only in actions for quasi-delict, not in actions involving breach of contract. The doctrine is a device for imputing liability to a person where there is no relation between him and another party. In such a case, the obligation is created by law itself. But, where there is a pre-existing contractual relation bet

ween the parties, it is the parties themselves who create the obligation, and the function of the law is merely to regulate the relation thus created. [Calalasv. CA, 2000]!

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(2) that that presumption is juris tantum and not juris et de jure, and consequently, may be rebutted. It follows necessarily that if the employer shows to thesatisfaction of the court that in selection and supervision he has exercised the care and diligence of a good father of a family, the presumption is overcome and he is relieved from liability." [Cangco v. Manila Railroad, 1918]! On the other hand, the liability of masters and employers for the negligent acts or omissions of their servants or agents, when such acts or omissions cause damages which

amount to the breach of a contract, is not based upon a mere presumption of themaster

s negligence in their selection or control, and proof of exercise of theutmost diligence and care in this regard does not relieve the master of his liability for the breach of his contract. [Ibid.]! Intersections! Article 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called quasi-delictxxx.! [W]hether negligence occurs as an incident in the course of the performance of a contractual undertaking or is itself the source of an extra-contractual obligation, its essential characteristics are identical. There is always an act o


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r omission productive of damage due to carelessness or inattention on the part of the defendant. xxx [T]he practical result is identical xxx. [Cangco v. ManilaRailroad, 1918]! The field of non-contractual obligation is much more broader than that of contractual obligation, comprising, as it does, the whole extent of juridical human relations. These two fields, figuratively speaking, concentric; that is to say, the mere fact that a person is bound to another by contract doesnot relieve him from extra-contractual liability to such person. When such a contractual relation exists the obligor may break the contract under such conditions that the same act which constitutes a breach of the contract would have constituted the source of an extra-contractual obligation had no contract existed between the parties. [Ibid.]! The definition of quasi-delict in Article 2176 expressly excludes cases where there is a "preexisting contractual relation between the parties." [Fores v. Miranda, 1959]! And this, because, although the relation of passenger and carrier is "contractual both in origin and nature" nevertheless "the act that breaks the contract may be also a tort." [Air France v. Carrascoso, 1966]! The Court has not in the process overlooked another rule that a quasi-delict can be the cause for breaching a contract that might thereby permit the application of applicable principles on tort even where there is a pre-existing contract between the plaintiff and the defendant. xxx The test (whether a quasi-delict can be deemed to underlie the breach of a contract) can be stated thusly: Where, without a pre-existing contract between two parties, an act or omission can nonetheless amount to an actionable tort by " of "50 4

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Defense of employer for negligence of employee! "From this article [Article 1903] two things are apparent: (1) That when an injury is caused by the negligence of a servant or employee there instantly arises a presumption of law that there was negligence on the part of the master or employer either in the selection of the servant or employee, or in supervision over him after the selection, or both; and


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itself, the fact that the parties are contractually bound is no bar to the application of quasi-delict provisions to the case. [Far East Bank v. CA, 1995]! A perusal of 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. However, this impression has not prevented this Court from determining the existence of a tort even when there obtains a contract. xxx Air France is authority for the view that liability from tort may exist even if there is a contract, for the act that breaks the contract may be also a tort. [PSBA v. CA, 1992]! [A] pre-existing contractual relation between the parties does not preclude the existence of a culpa aquiliana xxx. [Syquia v. CA, 1993]! [L]iability for tort may arise even under a contract, where tort is that which breaches the contract. Stated differently, when an act which constitutes a breach of contract would have itself constituted the source of a quasi-delictual liability had no contract existed between the parties, the contract can be said to have been breached by tort, thereby allowing the rules on tort to apply. [LRT v. Navidad, 2003]! The law on quasi-delict xxx is generally applicable when there is no pre-existing contractual relationship between the parties. [Consolidated Bank v. CA, 2003]!

A negligent act is an inadvertent act; it may be merely carelessly done from a lack of ordinary prudence and may be one which creates a situation involving an unreasonable risk to another because of the expectable action of the other, a third person, an animal, or a force of nature. A negligent act is one from which an ordinary prudent person in the actor

s position, in the same or similar circumstances, would foresee such an appreciable risk of harm to others as to cause him not to do the act or to do it in a more careful manner. [Corinthian Gardens v.Tanjangco, 2008]! PNR v. Brunty, 2006 Ð A collision occurred between a car and a PNR train at 12 AM causing the death of Brunty, a passenger of the car. The car was overtaking another car, with a blind curve ahead, when it hit the train. PNRwas found negligent.! Doctrine: Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the

conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do. The test is, did the defendant, in doing the alleged negligent act, use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, the person is guilty of negligence. The law, in effect, adopts the standard supposed to be supplied by the imaginary conduct of the discreet pater familias of the Roman law.! Notes:The negligence of PNR consists in the inadequate safety precautions placed in the site. The extraordinary diligence required of common carriers is not applicable in this case since Brunty was not a passenger.! PNR v. CA, 2007 Ð Amores was driving when he came to a railroad crossing. He stopped before crossing then proceeded. But just as he was at the intersection, a PNR train turned up and collidedwith his car, killing him. There was neither a signal nor a crossing bar at theintersection to warn motorists and aside from the railroad track, the only visib

le warning sign was a dilapidated "stop, look, and listen" sign. No whistle blow was heard from the train before the collision. The SC held PNR liable, and that Amores did everything, with absolute care and caution, to avoid the collission.! Doctrine: Negligence has been defined as `the failure to observe for the protection of the interests of another person that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury.! Determining the diligence required! Article 1173. The fault or negligence of the obligor consists in the omission of that diligence which is required by the nature of the obligation and corresponds with the circumstances of the persons, of the time and of the place. When negligence shows bad faith, the provisio


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ns of Articles 1171 and 2201, paragraph 2, shall apply.!

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CONCEPT OF NEGLIGENCE! In Common Law! Negligence is a matter of risk ± that is tosay, of recognizable danger of injury. It has been defined as "conduct which involves an unreasonably great risk of causing damage," or, more fully, conduct "which falls below the standard established by law for the protection of others against unreasonable risk of harm." "Negligence is conduct and not a state of mind." [Prosser & Keeton]!

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In Philippine Law! Definition! Article 1173. The fault or negligence of the obligor consists in the omission of that diligence which is required by the nature of the obligation and corresponds with the circumstances of the persons, of the time and of the place. When negligence shows bad faith, the provisions of Articles 1171 and 2201, paragraph 2, shall apply.! If the law or contract does not state the diligence which is to be observed in the performance, that which is expected of a good father of a family shall be required.! Article 2178. The provisions

of Articles 1172 to 1174 are also applicable to a quasi-delict.!

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If the law or contract does not state the diligence which is to be observed in the performance, that which is expected of a good father of a family shall be required.! The diligence with which the law requires the individual at all times to govern his conduct varies with the nature of the situation in which he is placed and the importance of the act which he is to perform. [Sicam v. Jorge, 2007]!Generally, the degree of care required is graduated according to the danger a person or property attendant upon the activity which the actor pursues or the instrumentality which he uses. The greater the danger the greater the degree of care required. What is ordinary under extraordinary of conditions is dictated by those conditions; extraordinary risk demands extraordinary care. Similarly, the more imminent the danger, the higher the degree of care. [Far Eastern Shipping v. CA, 1998]!

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naturally and probably result in injury, or utter disregard of consequences.! Notes: Mere riding or stealing a ride on a hauling truck is not negligence, ordinarily, because transportation by truck is not dangerous per se.! Ilao-Oreta v. Ro

nquillo, 2007 Ð Dr. Ilao-Oreta failed to attend to a scheduled laparoscopic operation scheduled by the spouses Ronquillo, to determine the cause of the wife

s infertility. The wife already underwent pre-operation procedures at that time. Dr.Ila-Oreta claimed that she was in good faith, only failing to account the time difference between the Philippines and Hawaii, where she had her honeymoon. The SC ruled that her conduct was not grossly negligent, since the operation was only exploratory. Her "honeymoon excitement" was also considered.! Doctrine: Gross negligence is the want or absence of or failure to exercise slight care or diligence or the entire absence of care.! Notes: That she failed to consider the timedifference was probably a big lie, since the estimated time of arrival is clearly shown in the ticket.!

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DEGREES OF NEGLIGENCE! A different, and older, approach has recognized distinct"degrees" of negligence itself, which is to say degrees of legal fault, corresponding to required "degrees" of care. xxx It recognizes three "degrees" of negligence: slight negligence, which is failure to use great care; ordinary negligence, which is failure to use ordinary care; and gross negligence, which is failureto use even slight care. [Prosser & Keeton]! Amedo v. Rio, 1954 Ð Managuit was a seaman. While he was on board the ship doing his job, he jumped into the water to retrieve his 2-peso bill, which was blown by the wind. He drowned. His mother was not allowed to recover because in acting as such, he was grossly negligent.!Doctrine: Gross negligence is defined to be the want of even slight care and dil

igence. By gross negligence is meant such entire want of care as to raise a presumption that the person in fault is conscious of the probable consequences of carelessness, and is indifferent, or worse, to the danger of injury to person or property of others. It amounts to a reckless disregard of the safety of person or property.! Notes: When the act is dangerous per se, doing it constitutes grossnegligence.! Marinduque Iron Mines v. WCC, 1956 Ð Mamador was laborer. He boardeda company truck with others to go to work. When it tried to overtake another truck, it turned over and hit a coconut tree. Mamador died. Upon complaint, the defense of the company was that Mamador was notoriously negligent, for violating acompany policy prohibiting riding in hauling trucks, and was, thus, barred from


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recovery. The SC cited Corpus Juris to the effect that violation of a rule promulgated by a commission or board is not negligence per se, much less that of a company policy. It may, however, evidence negligence. Even granting that there was negligence, it certainly was not notorious.! Doctrine: Notorious negligence isthe same as gross negligence, which implies a conscious indifference to consequences, pursuing a course of conduct which would " of "50 6

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STANDARDS OF CONDUCT! Importance of Standard! The Fictitious Person! Picart v. Smith, 1918 Ð An automobile hit a horseman, who was on the wrong side of the road.The horseman thought he did not have time to get to the other side. The car passed by too close that the horse turned its body across, with its head toward therailing. Its limb was broken, and its rider was thrown off and injured. The SC found the automobile driver negligent, since a prudent man should have foreseen the risk in his course and that he had the last fair chance to avoid the harm.! Doctrine: The test to determine the existence of negligence in a particular caseis: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? The law here in effect adopts the standard suppose to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law. The existence of negligence in a given case is not determined by reference to the personal ju

dgment of the actor in the situation before him. The law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence and determines liability by that.! Notes: The Picart test is the most cited test of negligence. It introduced the use of the fictitious person. It has the markings of common law but because it uses the concept of the discreet paterfamilias, later enshrined in the Civil Code as the good father of a family, it is now a civil law test.! Sicam v. Jorge, 2007 Ð Jorge pawned jewelry with Agencia deR. C. Sicam. Armed men entered the pawnshop

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and took away cash and jewelry from the pawnshop vault. Jorge demanded the return of the jewelry. The pawnshop failed. The SC held Sicam liable for failing to employ sufficient safeguards for the pawned goods. It held that robbery, if negligence concurred, is not a fortuitous event. Also, Article 2099 requires a creditor to take care of the thing pledged with the diligence of a good father of a family.! Doctrine: The diligence with which the law requires the individual at all times to govern his conduct varies with the nature of the situation in which he is placed and the importance of the act which he is to perform. Negligence, therefore, is the omission to do something which a reasonable man, guided by thoseconsiderations which ordinarily regulate the conduct of human affairs, would do; or the doing of something which a prudent and reasonable man would not do. It is want of care required by the circumstances.! Notes: The fictitious person is not the standard. It is his conduct.! Corinthian Gardens v. Tanjangco, 2008 Ð The Cuasos built their house on a lot adjoining that owned by the Tanjangcos. Their plan was approved by Corinthian Gardens. It turned out, however, that the house built encroached on the lot of the Tanjangcos. The SC found Corinthian Gardens negligent for conducting only "table inspections," when it should have conducted actual site inspections, which could have prevented the encroachment.! Doctrine:

A negligent act is an inadvertent act; it may be merely carelessly done from a lack of ordinary prudence and may be one which creates a situation involving an unreasonable risk to another because of the expectable action of the other, a third person, an animal, or a force of nature. A negligent act is one from which an ordinary prudent person in the actor

s position, in the same or similar circumstances, would foresee such an appreciable risk of harm to others as to cause him not to do the act or to do it in a more careful manner.! Notes: The test citedin the case was the Picart test.! Special Circumstances! Heirs of Completo v. Albayda, 2010 Ð Albayda, Master Sergeant in the Philippine Air Force, was at an intersection riding his bike when he was hit by a taxi driven by Completo. Albayda suffered injuries, including breaking his knee. The SC found Completo negligent,since he was overspeeding when he reached the intersection. Also, the bike already had the right of way at the time of the incident.! Doctrine: The bicycle occu

pies a legal position that is at least equal to that of other vehicles lawfullyon the highway, and it is fortified by the fact that usually more will be required of a motorist than a bicyclist in discharging his duty of care to the other because of the physical advantages the automobile has over the bicycle.! Notes: The witnesses for the same parties are of the same number. It seems odd, therefore, to apply the test of negligence when the facts are not settled by preponderance " of "50 7

of evidence. Thus, it appears that the court sympathized with Albayda, who was serving the government and was left by his wife, supposedly because of his injuries.! Pacis v. Morales, 2010 Ð Morales owned a gun shop. An employee of the shop allowed Pacis to inspect a gun brought in for repair. It turned out that the gun was loaded and when Pacis laid it down, it discharged a bullet, hitting his head.

He died. The SC found Morales, as the owner, liable, since he failed to exercise the diligence required of a good father of a family, much less that required of someone dealing with dangerous weapons.! Doctrine: A higher degree of care isrequired 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 degreeof care.! Notes: Two things may be considered negligent: the keeping of a defect


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ive gun loaded and the storing a defective gun in a drawer. It is strange, however, that the negligence of the employee was not discussed, when the presumptionthat the employer was negligent only arises after the negligence of the employee is established. Also, that the wound sustained was in the head appears to be afactual anomaly.!

!

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Children! Taylor v. Manila Railroad, 1910 Ð David Taylor, 15 years old, and Manuel, 12, obtained fulminating caps from the compound of Manila Railroad. They experimented on them. The experiment ended with a bang, literally. The explosion caused injury to the right eye of Taylor. His father sued for damages. The defense of Manila Railroad is the entry to their compound was without its invitation. The SC held that the absence of invitation cannot relieve Manila Railroad from liability. However, it held that the proximate cause of the injury was Taylor

s negligence.! Doctrine: The personal circumstances of the child may be considered indetermining the existence of negligence on his part.! Notes: The age-bracket regime, where certain age groups are treated as incapable of negligent conduct, was

not applied here. Also, the standard applied differs from that objective standard of conduct generally applied to adults.!

!

Jarco Marketing v. CA, 1999 Ð Zhieneth, 6 years old, was pinned down by a gift-wrapping counter at a department store, when her mother momentarily let her go to sign a credit card slip. She died. The SC found Jarco Marketing negligent, sinceit did not employ safety measures even when it knew that the counter was unstable. That Zhieneth was negligent, that she climbed the counter, is incredible.!


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Doctrine: A conclusive presumption runs in favor of children below 9 years old that they are incapable of contributory negligence.! Notes: The 9-year mark was adopted from the Sangco

s discussion on the matter, citing the same age mark fordetermining discernment in criminal law. This analogy, however, is erroneous since discernment, in criminal law, is used to determine the existence of criminalintent, which is wildly different from negligence.!

!

Ylarde v. Aquino, 1988 Ð Ylarde, a 10-year old student, and other fellow studentswere asked by Aquino, their teacher, to help him in burying large blocks of stones. Aquino left them for a while and told them not to touch anything. After Aquino left, they played and Ylarde jumped into the hole while one of them jumped on the stone, causing it to slide into the hole. Ylarde was not able to get out of the hole in time and died. The SC ruled that Aquino was negligent in leaving his pupils in the dangerous site, and that it was natural for said pupils to play. It disregarded the claim that Ylarde was imprudent.! Doctrine: The degree of care required to be exercised must vary with the capacity of the person endangered

to care for himself. A minor should not be held to the same degree of care as an adult, but his conduct should be judged according to the average conduct of persons of his age and experience. The standard of conduct to which a child must conform for his own protection is that degree of care ordinarily exercised by children of the same age, capacity, discretion, knowledge and experience under thesame or similar circumstances.! Notes: The choice of standard of diligence for children also depends on the facts and circumstances of the case.!

with oil from a leak from the tubing, which was improperly fitted to the oil tank. The SC held Philippine Motor negligent for failing to use the skill that would have been exhibited by one ordinarily expert in repairing gasoline engines onboats. Ordinarily, a backfire would not be followed by a disaster.! Doctrine: When a person hold himself out as being competent to do things requiring professio

nal skill, he will be liable for negligence if he fails to exhibit the care andskill of one ordinarily skilled in the particular work which he attempts to do.!

!

Pharmacists! US v. Pineda, 1918 Ð Santos bought medicine in Santiago Pineda's pharmacy for his sick horses. He was given the wrong medicine. His horses died. The SC held him criminally liable under The Pharmacy Law.! Doctrine: The profession of pharmacy is one demanding care and skill. The responsibility of the druggist to use care has been variously qualified as "ordinary care," "care of a speciallyhigh degree," "the highest degree of care known to practical men." In other words, 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. Caveat emptor does not apply because the pharmacist and the customer are not in equal footing in this kind of transaction.! Notes: Even when the mistake is not fatal, the pharmacist will still be held liable if the rule laid down applied. Also, caveat emptor may apply in cases of well-known medicine.!

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! !

Experts! In general! Those who undertake any work calling for special skills are


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required not only to exercise reasonable care in what they do but also possessa standard minimum of special knowledge and ability.! Every man who offers his services to another, and is employed, assumes to exercise in the employment suchskills he possesses, with a reasonable degree of diligence. In all these employments where peculiar skill is requisite, if one offers his services he is understood as holding himself out to the public as possessing the degree of skill commonly possessed by others in the same employment, and if his pretensions are unfounded he commits a species of fraud on every man who employs him in reliance on his public profession. [Far Eastern Shipping v. CA, 1998]! Culion v. Philippine Motors, 1930 Ð Culion contracted Philippine Motors to convert the engine of his fishing vessel to process crude oil instead of gasoline. When they tried to test it, a backfire broke out. When it reached the carburetor, the fire grew bigger. Apparently, the carburetor was soaked " of "50 8

Mercury Drug v. De Leon, 2008 Ð Judge De Leon was given a prescription by his doctor friend for his eye. He bought them from Mercury Drug but he was given drops for the ears. When he applied the drops to his eyes, he felt searing pain. Only then did he discover that he was given the wrong medicine. Mercury Drug invoked the principle of caveat emptor. The SC held Mercury Drug and its employee liablefor failing to exercise the highest degree of diligence expected of them.! Doctrine: The profession of pharmacy demands care and skill, and druggists must exercise care of a specially high degree, the highest degree of care known to practical men." In other words, druggists must exercise the highest practicable degreeof prudence and vigilance, and the most exact and reliable safeguards consistent

" with" the" reasonable conduct of the business, so that human life may not constantly be exposed to the danger flowing from the substitution of deadly poisonsfor harmless medicines.!

!

!

Medical professionals! Cruz v. CA, 1997 Ð Dr. Cruz performed a hysterectomy on Lydia Umali. The hospital was untidy, and during the operation, the family had to obtain blood, oxygen supply, and other articles necessary for the operation outside the hospital. Lydia went into shock and her blood pressure dropped. She was transferred to another hospital. Dr. Cruz


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was charged with reckless imprudence resulting to homicide. The SC absolved Dr.Cruz. While the facts point to the existence of reckless imprudence, it was notshown that such imprudence caused the death of Lydia. Moral and exemplary damages were, however, awarded.! Doctrine: By accepting a case, a doctor in effect represents that, having the needed training and skill possessed by physicians and surgeons practicing in the same field, he will employ such training, care and skill in the treatment of his patients. He therefore has a duty to use at least the same level of care that any other reasonably competent doctor would use to treat a condition under the same circumstances. It is in this aspect of medical malpractice that expert testimony is essential to establish not only the standard of care of the profession but also that the physician

s conduct in the treatment and care falls below such standard. Further, inasmuch as the causes of the injuries involved in malpractice actions are determinable only in the light of scientific knowledge, it has been recognized that expert testimony is usually necessary to support the conclusion as to causation.! Professional Services v. Agana, 2007 Ð After her hysterectomy operation at Medical City, Natividad found out that two pieces of sponges were left inside her, which has caused her pain for a long time. The SC held Dr. Ampil, the surgeon who closed the incision, liable, ruling t

hat leaving foreign substances in the wound after the incision has been closed in at the very least prima facie negligence. It is inconsistent with due care, raising an inference of negligence. It is even considered as negligence per se. Also, when the operation was finished, it was found out that two sponges were missing.! Doctrine: Once a physician undertakes the treatment and care of a patient, the law imposes on him certain obligations. To escape liability, he must possess that reasonable degree of learning, skill and experience required by his profession."At the same time, he must apply reasonable care and diligence in the exercise of his skill and the application of his knowledge, and exert his best judgment.! Cayao-Lasam v. Ramolete, 2008 Ð Dr. Cayao-Lasam conducted a dilatation and curettage procedure (raspa) on Ramolete. Almost a month after, she went back to the hospital. A dead fetus was found in her womb. She underwent operations, which rendered her incapable of bering a child. The SC absolved Dr. Cayao-Lasam, sinc

e there was no expert testimony presented to the effect that she breached her professional duties, and Ramolete herself failed to attend the follow-up check-ups after the operation, which could have avoided the injury.! Doctrine: There arefour elements involved in medical negligence cases: duty, breach, injury and proximate causation. A physician is duty-bound to use at least the same level of care that any reasonably competent doctor would use to treat a condition under the same circumstances. Breach of this duty, whereby the patient is " of "50 9

injured in body or in health, constitutes actionable malpractice. As to this aspect of medical malpractice, the determination of the reasonable level of care and the breach thereof, expert testimony is essential.! Notes: The elements enumerated is the same as that for a tort. It, therefore, shares the same problem as that of tort, that is, lack of statutory basis. The requirement of expert testimo

ny is understandable in this case.! Lucas v. Tuaño, 2009 Ð Lucas consulted Dr. Tuaño regarding his "sore eyes." He was prescribed a medicine. Not long after, however, his sore eyes turned into a viral infection. Maxitrol was then prescribed. Theinfection subsided. Upon discovery that Maxitrol increased the chance of contracting glaucoma, he consulted Dr. Tuaño, who brushed it aside. His right eye becameblind because of glaucoma. On consultation to another physician, Lucas was informed that his condition would require long-term care. The SC absolved Dr. Tuaño. It found that Lucas failed to discharge the burden of proof by failing to presentexpert testimony to establish the standard of care required, breach, and proximate causation, which requires expert testimony.! Doctrine: Just like any other pr


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oceeding for damages, four essential elements i.e., (1) duty; (2) breach; (3) injury; and (4) proximate causation, must be established in medical negligence cases. In accepting a case, the physician, for all intents and purposes, represents that he has the needed training and skill possessed by physicians and surgeonspracticing in the same field; and that he will employ such training, care, and skill in the treatment of the patient. This standard level of care, skill and diligence is a matter best addressed by expert medical testimony, because the standard of care in a medical malpractice case is a matter peculiarly within the knowledge of experts in the field.! Notes: The action was primarily based on Article 2176. However, instead of using the three elements for quasidelict, the elements of the common-law tort was used.!

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Establishing and Defending! Claims of Negligence!

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PROVING NEGLIGENCE! In General! Section 1, Rule 131, Rules of Court. Burden of proof. ± Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law.! Presumptions! In motor vehicle mishaps! Article 2184. In motor vehicle mishaps, the owner is solidarily liable with his driver, if the former, who was in


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the vehicle, could have, by the use of due diligence, prevented the misfortune.It is disputably presumed that a driver was negligent, if he had been found guilty of reckless driving or violating traffic regulations at least twice within the next preceding two months.! If the owner was not in the motor vehicle, the provisions of Article 2180 are applicable.! Article 2185. Unless there is proof tothe 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.!

!

Possession of dangerous weapons or substance! Article 2188. There is prima facie presumption of negligence on the part of the defendant if the death or injury results from his possession of dangerous weapons or substances, such as firearmsand poison, except when the possession or use thereof is indispensable in his occupation or business.! Common carriers! Article 1734. Common carriers are responsible for the loss, destruction, or deterioration of the goods, unless the sameis due to any of the following causes only:! (1) Flood, storm, earthquake, lightning, or other natural disaster or calamity;! (2) Act of the public enemy in war

, whether international or civil;! (3) Act or omission of the shipper or owner of the goods;! (4) The character of the goods or defects in the packing or in the containers;! (5) Order or act of competent public authority.! Article 1735. Inall cases other than those mentioned in Nos. 1, 2, 3, 4, and 5 of the precedingarticle, if the goods are lost, destroyed or deteriorated, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as required in Article 1733.! Res ipsaloquitur! Definition/statement of the rule. This doctrine is stated thus: ªWhere the thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happenif those who have the management use proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want of care. [Layugan v. IAC, 1988; Batiquin v. CA, 1996]! Res ipsa loquitur

(the thing speaks for itself). Rebuttable presumption or inference that defendant was negligent, which arises upon proof that instrumentality causing injury was in defendant's exclusive control, and that the accident was one which ordinarilydoes not happen in absence of negligence. Res ipsa loquitur is a rule of evidence whereby negligence of alleged wrongdoer may be inferred from mere fact that accident happened provided the character of accident and circumstances attending it lead reasonably to a

!

belief that in the absence of negligence it would not have occurred and that thing which caused injury is shown to have been under management and control of alleged wrongdoer. Under the doctrine of ªres ipsa loquiturº the happening of an injury

permits an inference of negligence where plaintiff produces substantial evidence that injury was caused by an agency or instrumentality under exclusive control and management of defendant, and that the occurrence was such that in the ordinary course of things would not happen if reasonable care had been used. [Layugan v. IAC, 1998, citing Black

s Law Dictionary]! While negligence is not ordinarily inferred or presumed, and while the mere happening of an accident or injury will not generally give rise to an inference or presumption that it was due to negligence on defendant's part, under the doctrine of res ipsa loquitur, which means, literally, the thing or transaction speaks for itself, or in one jurisdiction,that the thing or instrumentality speaks for itself, the facts or circumstances


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accompanying an injury may be such as to raise a presumption, or at least permit an inference of negligence on the part of the defendant, or some other person who is charged with negligence. [DM Consunji v. CA, 2007, citing American Jurisprudence]! Justification. It is grounded in the superior logic of ordinary human experience and on the basis of such experience or common knowledge, negligence may be deduced from the mere occurrence of the accident itself. Hence, res ipsa loquitur is applied in conjunction with the doctrine of common knowledge. [Ramos v. CA, 1999; Tan v. JAM Transit, 2009]! One of the theoretical basis for the doctrine is its necessity, i.e., that necessary evidence is absent or not available. xxx The doctrine is based in part upon the theory that the defendant in chargeof the instrumentality which causes the injury either knows the cause of the accident or has the best opportunity of ascertaining it and that the plaintiff hasno such knowledge, and therefore is compelled to allege negligence in general terms and to rely upon the proof of the happening of the accident in order to establish negligence. The inference which the doctrine permits is grounded upon thefact that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to the defendant but inaccessible to the injured person.! It has been said that the doctrine of res ipsa loquitur furnishes a bridge bywhich a plaintiff, without knowledge of the cause, reaches over to defendant who knows or should know the cause, for any explanation of care exercised by the defendant in respect of the matter of which the plaintiff complains. The res ipsaloquitur doctrine, another court has said, is a rule of necessity, in that it proceeds on the theory that under the peculiar circumstances in which the doctrine is applicable, it is within the power of the defendant to show that there was n

o negligence on his part, and direct proof of defendant's negligence is beyond plaintiff's power. [DM Consunji v. CA, 2001, citing American Jurisprudence]!

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Nature. The doctrine is not a rule of substantive law but merely a mode of proof or a mere procedural convenience. [Layugan v. IAC, 1988; Batiquin v. CA, 1996]! However, much has been said that res ipsa loquitur is not a rule of substantive law and, as such, does not create or constitute an independent or separate ground of liability. Instead, it is considered as merely evidentiary or in the nature of a procedural rule. It is regarded as a mode of proof, or a mere proceduralconvenience. [Ramos v. CA, 1999; Professional Services v. Agana, 2007]! Effect.The doctrine of res ipsa loquitur as a rule of evidence is peculiar to the law of negligence which recognizes that prima facie negligence may be established without direct proof and furnishes a substitute for specic proof of negligence. [Layugan v. IAC, 1988; Batiquin v. CA, 1998]! The rule, when applicable to the facts and circumstances of a particular case, is not intended to and does not dispense with the requirement of proof of culpable negligence on the part of the partycharged. It merely determines and regulates what shall be prima facie evidence thereof and facilitates the burden of plaintiff of proving a breach of the duty of due care. [Layugan v. IAC, 1988; Batiquin v. CA, 1996]! [I]t furnishes a substitute for, and relieves a plaintiff of, the burden of producing specic proof of negligence. [Ramos v. CA, 1999; Tan v. JAM Transit, 2009]! As stated earlier, the

defendant's negligence is presumed or inferred when the plaintiff establishes the requisites for the application of res ipsa loquitur. Once the plaintiff makes out a prima facie case of all the elements, the burden then shifts to defendant to explain. The presumption or inference may be rebutted or overcome by other evidence and, under appropriate circumstances disputable presumption, such as thatof due care or innocence, may outweigh the inference. It is not for the defendant to explain or prove its defense to prevent the presumption or inference from arising. Evidence by the defendant of say, due care, comes into play only after the circumstances for the application of the doctrine has been established. [DM Consunji v. CA, 2001]! Requisites. The doctrine can be invoked when and only when, under the circumstances involved, direct evidence is absent and not readily available. [Layugan v. IAC, 1988; Batiquin v. CA, 1996]! Still, before resort to the doctrine may be allowed, the following requisites must be satisfactorily show

n: 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 contributingconduct which would make the plaintiff responsible is eliminated. [Ramos v. CA,1999; Tan v. JAM Transit, 2009; Cantre v. Go, 2007; College Assurance v. Belfranlt Development, 2007]! In the above requisites, the fundamental element is the ªcontrol of instrumentalityº which caused the damage.

!

Such element of control must be shown to be within the dominion of the defendant. In order to have the benet of the rule, a plaintiff, in addition to proving injury or damage, must show a situation where it is applicable, and must establish

that the essential elements of the doctrine were present in a particular incident. [Ramos v. CA, 1999]! From the foregoing statements of the rule, 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 theforegoing requisites, the most instrumental is the "control and management of the thing which caused the injury." [Professional Services v. Agana, 2007]! Accordingly, some court add to the three prerequisites for the application of the res


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ipsa loquitur doctrine the further requirement that for the res ipsa loquitur doctrine to apply, it must appear that the injured party had no knowledge or means of knowledge as to the cause of the accident, or that the party to be charged with negligence has superior knowledge or opportunity for explanation of the accident. [DM Consunji v. CA, 2001, citing American Jurisprudence]! Effect of direct evidence. Hence, it has generally been held that the presumption of inference arising from the doctrine cannot be availed of, or is overcome, where plaintiff has knowledge and testies or presents evidence as to the specic act of negligence which is the cause of the injury complained of or where there is direct evidenceas to the precise cause of the accident and all the facts and circumstances attendant on the occurrence clearly appear. Finally, once the actual cause of injury is established beyond controversy, whether by the plaintiff or by the defendant, no presumptions will be involved and the doctrine becomes inapplicable when the circumstances have been so completely elucidated that no inference of defendant's liability can reasonably be made, whatever the source of the evidence, as in this case. [Layugan v. IAC, 1988]! In medical negligence cases. Medical malpractice cases do not escape the application of this doctrine. Thus, res ipsa loquitur has been applied when the circumstances attendant upon the harm are themselvesof such a character as to justify an inference of negligence as the cause of that harm. [Ramos v. CA, 1999]! Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done a negligent act or that he has deviated from the standard medical procedure, when the doctrineof res ipsa loquitur is availed by the plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the proof of neglig

ence. The reason is that the general rule on the necessity of expert testimony applies only to such matters clearly within the domain of medical

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science, and not to matters that are within the common knowledge of mankind which may be testied to by anyone familiar with the facts. Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether apatient has been treated or operated upon with a reasonable degree of skill andcare. However, testimony as to the statements and acts of physicians and surgeons, external appearances, and manifest conditions which are observable by any one may be given by non-expert witnesses. Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to nd a physician negligent upon properproof of injury to the patient, without the aid of expert testimony, where the court from its fund of common knowledge can determine the proper standard of care. xxx When the doctrine is appropriate, all that the patient must do is prove anexus between the particular act or omission complained of and the injury sustained while under the custody and management of the defendant without need to produce expert medical testimony to establish the standard of care. Resort to res ipsa loquitur is allowed because there is no other way, under usual and ordinary conditions, by which the patient can obtain redress for injury suffered by him. [Ibid.]! Layugan v. IAC, 1988 Ð A truck being repaired by Layugan was parked at the side of the road. It was hit by an oncoming truck. Layugan was pinned underneat

h the truck, his left forearm and left leg injured. His leg had to be amputateddue to gangrene. The SC held that the doctrine of res ipsa loquitur, used as a defense here, need not be applied since there was direct evidence to prove the negligence of the driver of the oncoming truck.! Doctrine: It has generally been held that the presumption of inference arising from the doctrine cannot be availed of, or is overcome, where plaintiff has knowledge and testifies or presents evidence as to the specific act of negligence which is the cause of the injury complained of or where there is direct evidence as to the precise cause of the accident and all the facts and circumstances attendant on the occurrence clearly appear.! Notes: That the rule was invoked as a defense is strange, since it is usually used to establish negligence.! Ramos v. CA, 1999 Ð For her cholecystectomy, the surgeon for Ramos was late, and her anesthesiologist was incompetent. Something went wrong during the intubation, that her nailbeds became bluish. She had to

be placed in a trendelenburg position, so her brain can get enough oxygen. A respiratory machine was rushed into the operating room. For lack of oxygen in her brain, she went into a comatose condition. In the action for damages, the SC held that the damage sustained presents a case for the application of res ipsa loquitur. Brain damage does not normally occur in a gall bladder operation in the absence of negligence. The anesthesia was under the exclusive control of the doctors. The patient was unconscious, incapable of

contributory negligence. The presumption of negligence arose, and remained unrebutted.! Doctrine: The injury incurred by petitioner Erlinda does not normally happen absent any negligence in the administration of anesthesia and in the use of an endotracheal tube. The instruments used in the administration of anesthesia, including the endotracheal tube, were all under the exclusive control of Dr. Gu

tierrez and Dr. Hosaka. Thus the doctrine of res ipsa loquitor can be applied in this case. Res ipsa could apply in medical cases. In cases where it applies, expert testimony can be dispensed with.! Notes: Expert testimony may be dispensedwith when res ipsa loquitur applies. There were proof of negligence in this case. Nonetheless, the doctrine was still applied.! Tan v. JAM Transit, 2009 Ð Tan was the owner of a jitney loaded with quail eggs and duck eggs. It was negotiatinga left turn when it collided with a JAM Transit bus. The jitney turned turtle. Its driver and passenger were injured. The eggs were destroyed. SC held the bus driver was negligent for overtaking when there were double yellow center lines on the road, which means overtaking is prohibited. Res ipsa loquitur was held appl


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icable, since the incident could not have happened in the absence of negligence, the bus was under the control of the driver, and the jitney driver was not contributorily negligent.! Doctrine: Res ipsa loquitur is not a rule of substantivelaw and does not constitute an independent or separate ground for liability. Instead, it is considered as merely evidentiary, a mode of proof, or a mere procedural convenience, since it furnishes a substitute for, and relieves a plaintiff of, the burden of producing a specific proof of negligence.! Notes: While the SCstated that the doctrine was applicable, it still examined the evidence provingthe negligence of the bus driver. This means that the doctrine was not necessary in resolving the case.! Cantre v. Go, 2007 Ð While unconscious during her treatment by Dr. Cantre for complications due to her pregnancy, Go sustained a gaping wound near her armpit, which appeared to be burns caused by contact with the droplight in the operating room. The SC found Dr. Cantre negligent. The wound was not an ordinary occurrence, since it is far removed from the organs treated. The instrument (droplight or blood pressure cuffs) which caused the injury was underthe exclusive control of the physician. Go was incapable of contributory negligence since she was unconscious.! Doctrine: In cases involving medical negligence, the doctrine 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 requisites concur [see Requisites above].! Notes: The requisites were matched with the facts of the case to establish the proper application of res ipsa loquitur.!

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Batiquin v. CA, 1996 Ð Dr. Batiquin performed a caesarian operation on Villegas. Afterwards, she was found to be feverish. When the patient submitted herself to another surgery, she was found to have an ovarian cyst and a piece of rubber material, which looked like a piece of a rubber glove, embedded in her uterus. The elements of res ipsa loquitur were held to be present here. The entire operationwas under the exclusive control of Dr. Batiquin. The injury could not have occurred unless through negligence. The resulting presumption was not rebutted.! Doctrine: When the doctrine applies, it affords reasonable evidence, in the absenceof explanation by the defendant, that the accident arose from want of ordinary care.!

Doctrine: When the doctrine applies, it may dispense with the expert testimony to sustain an allegation of negligence. The inference of negligence is not dispelled by mere denial.! Notes: The case illustrates clearly the element of controlin the requisites for the application of the doctrine. Also, only College Assurance has the knowledge of, or at least it had the best opportunity to ascertain,the cause of the fire.!

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DEFENSES AGAINST CHARGE OF NEGLIGENCE! Plaintiff's negligence is proximate cause!Article 2179. Article 2179. When the plaintiff s own negligence was the immediate and proximate cause of his injury, he cannot recover damages. xxx! Bernardo v. Legaspi, 1914 Ð There was a collision between 2 automobiles. One sued for damages. The other counterclaimed. Th SC held that both were negligent in handling their automobiles, in such a character and extent as to prevent either from recovering.! Doctrine: Where the plaintiff in a negligence action, by his own carelessness contributes to the principal occurrence, that is, to the accident, as one ofthe determining causes thereof, he cannot recover.! PLDT v. CA, 1989 Ð The jeep driven by Esteban suddenly swerved, hit a mound, and fell into an open trench, which was an excavation undertaken by PLDT. Esteban frequently drive through said s

treet. The SC found that Esteban was negligent, since he did not exercise reasonable care and prudence, when he already knew of the perils of the road. Also, there was insufficient evidence proving the negligence of PLDT. Esteban cannot recover.! Doctrine: Negligence, which is not only contributory to the injury but goes to the very cause of the occurrence of the accident, as one of its determining factors, precludes the right to recover damages.! Notes: The presence of warning signs could not have prevented the accident. The proximate cause would stillbe the sudden swerving of the jeep. If the injury could have been prevented by the warning signs, failure place them may be the proximate cause.! Manila Electric v. Remoquillo, 1956 Ð Efren Magno was repairing a media agua in his stepbrother

s house. With a galvanized iron sheet, he turned around. The sheet came in contact with an electric wire, causing his death by electrocution. Manila Electric was absolved. The SC found that, while Manila Electric may have been negligent in

leaving the wires uninsulated, the proximate cause of the death was Magno

s sudden turning around and the close proximity of the house to the electric wires, in violation of the construction permit given.! Doctrine: A prior and remote cause cannot be made the basis of an action if such remote cause did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible, if there intervened

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Professional Services v. Agana, 2007 Ð After her hysterectomy operation at Medical


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City, Natividad Agana found out that two pieces of sponges were left inside her, which has caused her pain for a long time. Dr. Ampil, who closed the incision, invoking res ipsa loquitur, blamed Dr. Fuentes, who conducted the operation itself. The SC absolved Dr. Fuentes, since he ceased to have control of the thing which caused the injury, when Dr. Ampil took over. On the contrary, Dr. Ampil was the lead surgeon, liable under the "captain of the ship" rule.! Doctrine: The most instrumental in the requisites [see Requisites above] for the doctrine to apply is the control and management of the thing which caused the injury.!

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DM Consunji v. CA, 2001 Ð Jose Juego, a construction worker of DM Consunji, fell 14 floors to his death from a building. He was working on top of a plywood flooring when the bolts, which were merely inserted, connecting it to a 5-ton chain block, loosened, causing the whole assembly to fall. The SC found DM Consunji, who had exclusive management of the construction site, liable. It held that res ipsa loquitur applies, since no worker would fall unless someone was negligent, and Juego was not contributorily negligent.! Doctrine: As a rule of evidence, the doctrine of res ipsa loquitur is peculiar to the law of negligence which recognizes that prima facie negligence may be established without direct proof and furni

shes a substitute for specific proof of negligence.! Notes: The case mentioned that res ipsa loquitur is based on common sense and necessity.!

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College Assurance v. Belfranlt, 2007 Ð Fire razed a building owned by Belfranlt Development and leased to College Assurance Plan. damages. It was caused by an overheated coffee percolator in the store room leased to College Assurance. College Assurance assailed the report of the fireman to this effect. The SC held that even without such report, res ipsa loquitur may be applied. The fire was not an spontaneous occurrence. It originated from the store room, in the possession and

control of College Assurance. Belfranlt Development had no hand in the incident, and it has no means to find out for itself the cause of the fire.!

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between such prior or remote cause and the injury a distinct, successive, unrelated, and efficient cause of the injury, even though such injury would not have happened but for such condition or occasion.! Notes: In relation to the discussion on experts, Magno cannot be considered as such since his job was not for pay.! Contributory negligence of plaintiff! Article 2179. xxx But if his negligence was only contributory, the immediate and proximate cause of the injury being thedefendant

s lack of due care, the plaintiff may recover damages, but the courtsshall mitigate the damages to be awarded.! Article 2214. In quasi-delicts, the contributory negligence of the plaintiff shall reduce the damages that he may recover.! NPC v. Heirs of Casionan, 2008 Ð Casionan and Jimenez took bamboo poles, 14 and 18 feet, respectively, for pocket mining and walked on the only trail thatled to their workplace. The trail had high-tension electrical lines sagging anddangling to the ground. When Noble turned left on a curve, his bamboo hit a wire which electrocuted him. Noble died. His heirs sued NPC. The latter asked for mitigation of its liability since Casionan was contributorily negligent. The SC did not think so.! Doctrine: Contributory negligence is conduct on the part of the injured party, contributing as a legal cause to the harm he has suffered, which falls below the standard which he is required to conform for his own protection

. It is an act or omission amounting to want of ordinary care on the part of the person injured which, concurring with the defendant

s negligence, is the proximate cause of the injury.! Notes: The definition of contributory negligence herealmost equated it to proximate cause.!

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aware of the defects in the rail, his disobedience, which placed him in danger,contributed to some degree to the injury "as a proximate, although not as its primary cause." He is thus entitled only to half the amount of damages.! Doctrine: Where the claimant contributes to the principal occurrence, as one of its deter

mining factors, he can not recover. Where, in conjunction with the occurrence, he contributes only to his own injury, he may recover the amount that the defendant responsible for the event should pay for such injury, less a sum deemed a suitable equivalent for his own imprudence.! Notes: The court surveyed the common law rule of contributory negligence as a complete bar to recovery. The reason for such rule is because of the difficulty in measuring negligence and the extent to which it cause the injury. The court, however, refused to apply it, ruling instead that contributory negligence only reduces the amount recoverable, a rule now in the Civil Code. The rule was applied to actual damages in this case. Whether it may be applied to other kinds of damages is not settled.!

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Genobiagon v. CA, 1989 Ð An old woman was crossing the street. She started to do so when a rig was approaching, followed by another, driven by Genobiagon, which was very fast as it was trying to overtake the first rig. Genobiagon eventually bumped the old woman to her death. Tried for homicide through reckless imprudence, he claims that the reckless negligence of the woman was the proximate cause. The SC rejected his defense.! Doctrine: The defense of contributory negligence does not apply in criminal cases committed through reckless imprudence, since onecannot allege the negligence of another to evade the effects of his own negligen


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ce! Notes: Contributory negligence, which usually serves as a defense in civil cases, is not applicable in criminal cases.!

Lambert v. Heirs of Castillon, 2005 Ð After a bottle of beer, Castillon was driving fast on a motorbike without helmet, when the jeep he was tailgating made a sudden left turn. He died. The SC held that, while the sudden left turn of the jeep was the proximate cause, Castillon was guilty of contributory negligence. He is entitled only to half of the damages (loss of earning capacity, death indemnity, moral).! Doctrine: The underlying precept on contributory negligence is that a plaintiff who is partly responsible for his own injury should not be entitled to recover damages in full but must bear the consequences of his own negligence.The defendant must thus be held liable only for the damages actually caused by his negligence. The determination of the mitigation of the defendants liability varies depending on the circumstances of each case.! Notes: The case cited MH Rakes v. The Atlantic as regards the mitigation of damages without discussing the reason behind the proportionate reduction.!

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MH Rakes v. The Atlantic & Co., 1907 Ð Rakes was transporting iron bars through ahand car. Rakes walked beside the hand car, which was prohibited by the foreman. When the iron bars slipped, and because of a depression in the rails caused by

a recent typhoon, his feet was injured and amputated. The SC found that while he may not be

PNR v. Brunty, 2006 Ð A collision occurred between a car and a PNR train at 12 AMcausing the death of Brunty, a passenger of the car. The car was overtaking another car, with a blind curve ahead, when it hit the train. The SC found the car driver contributorily negligent, but did not mitigate the liability of PNR to Brunty. Her relationship with the driver was not established.! Doctrine: To hold aperson as having contributed to his injuries, it must be shown that he performed an act that brought about his injuries in disregard of warning or signs of an impending danger to health and body. To prove contributory negligence, it is still necessary to establish a causal link, although not proximate, between the negligence of the party and the succeeding injury. In a legal sense, negligence is c

ontributory only when it contributes proximately to the injury, and not simply a condition for its occurrence.!

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Notes: Causal link between negligence and injury is included in the definition of contributory negligence. Also, the negligence of the driver was external to the liability of PNR to Brunty. As such, it does not mitigate such liability.!

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Fortuitous event! Definition! Defense and exceptions! Elements! Three-step analysis! Article 1174. Except in cases expressly specified by the law, or when it is otherwise declared by stipulation, or when the nature of the obligation requires the assumption of risk, no person shall be responsible for those events whichcould not be foreseen, or which, though foreseen, were inevitable.! Based on the provision and on the lecture, the three-step test for determining the existence of fortuitous event, which exempts from liability, is:! First: Is the event a fortuitous event? As defined, fortuitous events are those which "could not be foreseen, or which, though foreseen, were inevitable."! Second: Is it within the exceptions in Article 1174? If yes, the defense cannot apply. The exceptions are when the liability for fortuitous event is:! (1) specified by law;! (2) when it is declared by stipulation; or! (3) required by the nature of the obligation.! Th

ird: Are the elements present? The elements, as laid down in Lasam v. Smith, are:! (1) The cause of the unforeseen and unexpected occurrence, or of the failureof the debtor to comply with his obligation, must be independent of the human will;! (2) It must be impossible to foresee the event which constitutes the caso fortuito, or if it can be foreseen, it must be impossible to avoid.! (3) The occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a normal manner;! (4) The debtor must be free from any participationin the aggravation of the injury resulting to the creditor.! Note: The elements, while lacking in statutory basis, are applied by the court anyway.! Juntilla v. Fontanar, 1985 Ð The right rear tire of the jeepney, where Juntilla was a passenger, exploded causing the vehicle to turn turtle. Juntilla, who was sitting at the front seat, was thrown out of the vehicle. He suffered injuries and his Omegawatch was lost. On his complaint for breach of contract of carriage with damages

, the SC

214687189-Torts-Damages-Reviewer.txt

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