Vicarious Liability

a. By State

Bar Exam Questions:

1. In the last quarter of 2012, about 5,000 container vans of imported goods intended for the Christmas Season were seized by agents of the Bureau of Customs. The imported goods were released only on January 10,2013. A group of importers got together and filed an action for damages before the Regional Trial Court of Manila against the Department of Finance and the Bureau of Customs.

The Bureau of Customs raised the defense of immunity from suit and, alternatively, that liability should lie with XYZ Corp. which the Bureau had contracted for the lease of ten (10) high powered van cranes but delivered only five (5) of these cranes, thus causing the delay in its cargo-handling operations. It appears that the Bureau, despite demand, did not pay XYZ Corp. the Php 1.0 Million deposit and advance rental required under their contract.

(A) Will the action by the group of importers prosper? (5%)

(B) Can XYZ Corp. sue the Bureau of Customs to collect rentals for the delivered cranes? (5'%)

2. The Ambassador of the Republic of Kafiristan referred to you for handling, the case of the Embassy's Maintenance Agreement with CBM, a private domestic company engaged in maintenance work. The Agreement binds CBM, for a defined fee, to maintain the Embassy's elevators, air-conditioning units and electrical facilities. Section 10 of the Agreement provides that the Agreement shall be governed by Philippine laws and that any legal action shall be brought before the proper court of Makati. Kafiristan terminated the Agreement because CBM allegedly did not comply with their agreed maintenance standards.

CBM contested the tennination and filed a complaint againstKafiristan before the Regional Trial Court of Makati. The Ambassador wants you to file a motion to dismiss on the ground of state immunity from suit and to oppose the position that under Section 10 of the Agreement, Kafiristan expressly waives its immunity from suit.

Under these facts, can the Embassy successfully invoke immunity from suit? (6%)

Discussion:

Even though the rule as to immunity of a state from suit is relaxed, the power of the courts ends when the judgment is rendered. Although the liability of the state has been judicially ascertained, the state is at liberty to determine for itself whether to pay the judgment or not, and execution can not issue on a judgment against the state. Such statutes do not authorize a seizure of state property to satisfy judgments recovered, and only convey implication that the legislature will recognize such judgment as final and make provision for the satisfaction thereof. (49 Am. Jur., Sec. 104, pp. 312-320.)

Judgments against a state, in cases where it has consented to be sued, generally operate merely to liquidate and establish plaintiff's claim in the absence of express provision; otherwise they can not be enforced by processes of law; and it is for the legislature to provide for their payment in such manner as it sees fit. (59 C.J. sec. 501, p. 331; 81 C.J.S., sec. 232, p. 1343.)

It is a well-entrenched rule in this jurisdiction, embodied in Article 2180 of the Civil Code of the Philippines, that the State is liable only for torts caused by its special agents, specially commissioned to carry out the acts complained of outside of such agent's regular duties (Merritt vs. Insular Government, supra; Rosete vs. Auditor General, 81 Phil. 453). There being no proof that the making of the tortious inducement was authorized, neither the State nor its funds can be made liable therefor.

b. By teachers

WHO CAN BE HELD LIABLE?1. The school 2. The school’s administrators; 3. and Teachers

WHY ARE THEY LIABLE?According to Tolentino, “a teacher

must not only be charged with teaching but also vigilance over their students or pupils”. Without the parents to look after their children when in school, it is the teacher who takes over in the supervision.

It is thus fitting that the basis of a teacher’s liability is the principle of “in loco parentis.”

Principle of “in loco parentis“- means “in the place of a parent”, - exists when a person undertakes care

and control of another in absence of such supervision by natural parents and in

absence of formal legal approval, and is temporary in character and is not to be

likened to an adoption which is permanent.

LEGAL BASIS FOR THEIR LIABILITY New Civil Code

Art. 2180. The obligation imposed by Article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible.

The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company.

Guardians are liable for damages caused by the minors or incapacitated persons who are under their authority and live in their company.

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 State is responsible in like manner when it acts through a special agent; but not when the damage has been caused by the official to whom the task done properly pertains, in which case what is provided in

Article 2176 shall be applicable.

Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices, so long as they remain in their custody.

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. (1903a)

Family Code Art. 218. The school, its administrators and teachers, or the individual, entity or institution engaged in child are shall have special parental authority and responsibility over the minor child while under their supervision, instruction or custody. Authority and responsibility shall apply to all authorized activities whether inside or outside the premises of the school, entity or institution. (349a)

WHEN ARE THEY LIABLE? Teachers – are liable for the acts or

omission of their pupils and students in their custody

Heads of establishments of arts and trades – are liable for the act or omission of apprentices in their custody

Reason for difference:The reason for the disparity can be traced to the fact that historically the head of the school of arts and trades exercised a closer tutelage over his pupils than the head of the academic school.By contrast, the head of the academic school was not as involved with his students and exercised only administrative duties over the teachers who were the persons directly dealing with the students. The head of the academic school had then (as now) only a vicarious relationship with the students. Consequently, while he could not be directly faulted for the acts of the students, the head of the school of arts and trades, because of his closer ties with them, could be so blamed. ( Amadora vs CA G.R. No. L-47745 April 15, 1988)

What does the phrase “…so long as they remain in their custody” means? The student is considered in the

custody of the school authorities for as long as he is under the control and influence of the school and within its premises, regardless of

whether the semester has started or has ended.

As long as it can be shown that the student is in the school premises in pursuance of a legitimate student objective, in the exercise of a legitimate student right, and even in the enjoyment of a legitimate student right, and even in the enjoyment of a legitimate student privilege, the responsibility of the school authorities over the student continues. Indeed, even if the student should be doing nothing more than relaxing in the campus in the company of his classmates and friends and enjoying the ambience and atmosphere of the school, he is still within the custody and subject to the discipline of the school authorities under the provisions of Article 2180. ( Amadora vs CA G.R. No. L-47745 April 15, 1988)

Liability of teachers for non- minors

Does a student need to be a minor for a teacher to be liable?

NO. This is one of the differences between a parent’s responsibility and that of a teacher’s. Under Article 221 of the Family Code of the Philippines, parents are responsible for their unemancipated minor children, while Article 2180 of the Civil Code does not provide any qualifications nor age limit. Thus, the liability of a teacher applies to all students, even those of age. Although according to Tolentino, who quotes Plainol & Ripert, the degree of vigilance of non-minors is not the same as over minors. This view is supported by Articles 218 and 219 of the Family Code.

Liability Outside SchoolMay a teacher escape liability for outings and activities held outside the school but authorized by the school?

NO. Art 218 of the Family Code states that “authority and responsibility shall apply to all authorized activities

whether inside or outside the premises of the school, entity or institution.” Special parental authority and responsibility applies to all authorized activities, whether inside or outside the school premises.

WaiversCan a teacher or school escape responsibility by asking parents to file a waiver during field trips and outings?

This issue is closely related to liabilities outside school and Art 218 is clear that “authority and responsibility shall apply to all authorized activities whether inside or

outside the premises of the school, entity or institution.”The fact that the parents allowed their child to join the activity, or even signed a waiver for this purpose, does not mean that the teacher(s)-in-charge were already relieved of their duty to observe the required diligence of a good father of a family in ensuring the safety of the children.

The waiver not to hold the school or its teachers responsible for negligence is not valid because the waiver is contrary to public policy. Thus, a teacher can still be made to answer for damages by the parent of the pupil or student in case she failed to exercise the proper diligence to prevent harm or injury to the pupil or student.

At best, what the waiver can bring about is a reminder to the teacher of his duty of diligence.

Who is At fault? Who to sue? Basis of liability Defenses that can be raised

Student Teacher, HeadSchoolAdministrator

• 2180 paragraph (Loco Parentis)

• Art 218 1nd 219 of Family Code

Diligence of a good father of a family

Teacher School

2180 paragraph 5 (Respondeat Superior)

Diligence in the selection and supervision of employee

Stranger School

Contract

Faithful compliance of the terms of the contract

STRICT LIABILITY TORTS

When you speak of torts, the basis of liability is you being at fault but then there can be a kind of tort that even if there is no fault imputed there can still be liability and these are very limited kinds you would call strict liability torts.

Why would you allow imputing liability on somebody when there is no fault?

SC said that there are very limited kinds of activities where the person engaged in such activities derives some sense of pleasure, utility, or service and then the source of that pleasure, utility, service may have imputed damage on another. In the allocation of loss and risk, it is just fair that one who derives pleasure, utility, or service from that activity should be the one held liable for the damage.

What are these instances?

a. Possessor’s of animals

The possessor of an animal (NOT necessarily the owner) or whoever may make use of the same is responsible for the damage which it may cause, although it may escape or be lost. 'This responsibility shall cease only in case the damages should come from force majeure from the fault of the person who has suffered damage.

Bar Question:Primo owns a pet iguana which he

keeps in a man-made pond enclosed by a fence situated in his residential lot. A typhoon knocked down the fence of the pond and the

iguana crawled out of the gate of Primo’s residence. N, a neighbor who was passing by, started throwing stones at the iguana, drawing the iguana to move toward him. N panicked and ran but tripped on something and suffered a broken leg.

Is anyone liable for N’s injuries? Explain. (4%)

b. Exemption from Caveat emptor rule

MERCURY DRUG CORP. v. BAKINGGR. No. 156037, May 28, 2007

Sebastian M. Baking went to the clinic of Dr. Cesar Sy for a medical check-up. After undergoing an ECG, and several examininations, Dr. Sy found the respondent’s blood sugar and triglyceride were above normal. The doctor then prescribed two medical prescriptions- Diamicron for the blood sugar and Benalize for his triglyceride. Respondent then proceeded to Mercury Drug Alabang to buy the prescribed medicines. The sales lady misread the prescription for Diamicron as a prescription for Dormicum. Thus what was sold was Dormicum, a potent sleeping tablet. Unaware of the wrong medicine, he took one pill on three consecutive days. On the third day he took the medicine, he met an accident while driving his car. He fell asleep while driving. He could not remember anything about the collision nor felt its impact. Suspecting the tablet he took, respondent went back to Dr. Sy who was shocked after finding that what was sold was Dormicum instead of Diamicron. He filed the present complaint for damages against petitioner. The trial court favored the defendant which was affirmed by the CA hence this petition.

ISSUE: Is petitioner negligent, and if so, is the negligence was the proximate cause of the accident?

HELD: YES. Art. 2176 provide the requisites of negligence: 1. damage suffered by the plaintiff, 2. fault or negligence of the defendant, 3. connection of cause and effect between the fault or negligence of the defendant and the damage incurred by the plaintiff. It is generally recognized that the drugstore business is imbued with public interest. Obviously, petitioner’s employee was grossly negligent in selling the wrong prescription. 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 the physician. Petitioner contends that the proximate cause of the accident was respondent’s negligence in driving his car. Proximate cause is that cause, which in natural and continuous sequence unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred Proximate cause is determined from the facts of each case, upon a combined consideration of logic, common sense, policy, and precedent. Here, the vehicular accident could not have occurred had petitioner’s employee been careful in reading the prescription. Without the potent effect of Dormicum, a sleeping tablet, it was unlikely that respondent would fall asleep while driving his car, resulting in collision. Petition DENIED.

SPECIAL TORTS

This one is the cases covered by the chapter on Human Relations

a. Abuse of Right Principle

even if you have the right, you don’t have the right to exercise it excessively

If you file a case for damages anchored on abuse of rights, then when you file your complaint to the court it should contain the allegation of bad faith or malice.

NIKKO HOTEL MANILA GARDEN v REYES

“Elsewhere, we explained that when "a right is exercised in a manner which does not conform with the norms enshrined in Article 19 and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be responsible." The object of this article, therefore, is to set certain standards which must be observed not only in the exercise of one’s rights but also in the performance of one’s duties. These standards are the following: act with justice, give everyone his due and observe honesty and good faith. Its antithesis, necessarily, is any act evincing bad faith or intent to injure. Its elements are the following: (1) There is a legal right or duty; (2) which is exercised in bad faith; (3) for the sole intent of prejudicing or injuring another. When Article 19 is violated, an action for damages is proper under Articles 20 or 21 of the Civil Code. Article 20 pertains to damages arising from a violation of law which does not obtain herein as Ms. Lim was perfectly

within her right to ask Mr. Reyes to leave. Article 21, on the other hand, states:

Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.

Article 21 refers to acts contra bonus mores and has the following elements: (1) There is an act which is legal; (2) but which is contrary to morals, good custom, public order, or public policy; and (3) it is done with intent to injure.

A common theme runs through Articles 19 and 21, and that is, the act complained of must be intentional.”

b. Emotional Distress Court Action

is personal in nature, i.e., it is a civil action filed by an individual to assuage the injuries to his emotional tranquility due to personal attacks on his character. 

reactive harm principle - which includes injuries to individual emotional tranquility in the form of an infliction of emotional distress.

"Emotional distress" means any highly unpleasant mental reaction such as extreme grief, shame, humiliation, embarrassment, anger, disappointment, worry, nausea, mental suffering and anguish, shock, fright, horror, and chagrin. 

The plaintiff is required to show, among other things, that he or she has suffered emotional distress so severe that no reasonable person could be expected to endure it; severity of the distress is an element of the cause of action, not simply a matter of damages

Any party seeking recovery for mental anguish must prove more than mere worry, anxiety, vexation, embarrassment, or anger.  Liability does not arise from mere insults, indignities, threats, annoyances, petty expressions, or other trivialities.  

In determining whether the tort of outrage had been committed, a plaintiff is necessarily expected and required to be hardened to a certain amount of criticism, rough language, and to

occasional acts and words that are definitely inconsiderate and unkind; the mere fact that the actor knows that the other will regard the conduct as insulting, or will have his feelings hurt, is not enough.

Elements of Emotional Distress Court Action1. The conduct of the defendant was

intentional or in reckless disregard of the plaintiff

2. The conduct was extreme and outrageouso means conduct that is so

outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in civilized society.  The defendant's actions must have been so terrifying as naturally to humiliate, embarrass or frighten the plaintiff. Generally, conduct will be found to be actionable where the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him or her to exclaim, "Outrageous!" as his or her reaction.

3. There was a causal connection between the defendant's conduct and the plaintiff's mental distress; and

4. The plaintiff's mental distress was extreme and severe

c. Alienation of Affection

Article 26 of NCC Every person shall respect the dignity,

personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief:

(1) Prying into the privacy of another's residence:

(2) Meddling with or disturbing the private life or family relations of another;

(3) Intriguing to cause another to be alienated from his friends;

(4) Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition.

Exception:RA 9262 SECTION 34

Persons Intervening Exempt from Liability. – In every case of violence against women and their children as herein defined, any person, private individual or police authority or barangay official who, acting in accordance with law, responds or intervenes without using violence or restraint greater than necessary to ensure the safety of the victim, shall not be liable for any criminal, civil or administrative liability resulting therefrom.

d. Interference with Contractual Relations

Elements:1. existence of a valid contract; 2. knowledge on the part of the third

person of the existence of contract; and

3. interference of the third person is without legal justification or excuseo there was no malice in the

interference of a contract, and the impulse behind one's conduct lies in a proper business interest rather than in wrongful motives, a party cannot be a malicious interferer. Where the alleged interferer is financially interested, and such interest motivates his conduct, it cannot be said that he is an officious or malicious intermeddler. 

MEDICAL MALPRACTICE

It is a particular form of negligence which consists in the failure of the physician or surgeon to apply his practice of medicine that degree of care and skill which is ordinarily employed by the profession generally, under similar conditions, and in like surrounding circumstances.

Elements Involved in Medical Negligence Cases:

Duty, Breach, Injury, Proximate Causation

STANDARD OF DILIGENCE REQUIRED

GR: The standard contemplated for doctors is simply the reasonable average merit among ordinarily good physicians.

EXC: But a physician holding out himself as having special knowledge and skill in the treatment of a particular organ, disease or type of injury is bound to bring to the discharge of his duty to a patient employing him as such specialist.

Factors in determining the degree of learning and skill required of a physician or surgeon in his treatment of a particular case:

State of Medical or Surgical science at the time

The locality in which the physician practices

The general rules and principles of the particular school of medicine which he follows

The nature of the case The condition of the patient

EVIDENTIARY RULE

GR: There is a necessity of expert testimony in proving medical negligence.

EXC: “Obvious errors”, which the doctrine of Res Ipsa Loquitor applies.

In such case, the need for an expert medical testimony is dispensed with because the injury itself provides the proof of negligence.

Meaning: When common language and experience teach that a resulting injury would not have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine without medical evidence, which is ordinarily required to show not only what occurred but how and why it occurred.

WHEN IS A HOSPITAL LIABLE?

no employment relationship + hospital holds out to the patient that the doctor is its agent

o 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/ agency by estoppels

o Solidarily liable with its agent(doctor)

regardless of its relationship with the doctor

o 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 (corporate negligence doctrine)

o Hospital is liable for its own negligence

Note: NO EE-ER relationship between doctor and hospital. SC overturned itself in the 2002 decision of Ramos vs CA saying that there was no element of control.

CAPTAIN OF THE SHIP DOCTRINE

Under this doctrine, the surgeon is likened to a ship captain who must not only be responsible for the safety of the crew but also of the passengers of the vessel.  The head surgeon is made responsible for everything that goes wrong within the four corners of the operating room.  It enunciates the liability of the surgeon not only for the wrongful acts of those who are under his physical control but also those wherein he has extension of control.

DOCTRINE OF INFORMED CONSENT

A duty imposed on a doctor to explain the risks of recommended procedures to a patient before a patient determines whether or not he or she should go forward with the procedure.

The gravamen in an informed consent case requires the plaintiff to “point to significant undisclosed information relating to

the treatment which would have altered her decision to undergo it.

The element of ethical duty to disclose material risks in the proposed medical treatment cannot thus be reduced to one simplistic formula applicable in all instances. Further, in a medical malpractice action based on lack of informed consent, “the plaintiff must prove both the duty and the breach of that duty through expert testimony. Such expert testimony must show the customary standard of care of physicians in the same practice as that of the defendant doctor.

 The court thus concluded that the patient’s right of self-decision can only be effectively exercised if the patient possesses adequate information to enable him in making an intelligent choice.  The scope of the physician’s communications to the patient, then must be measured by the patient’s need, and that need is whatever information is material to the decision.  The test therefore for determining whether a potential peril must be divulged is its materiality to the patient’s decision.