Torts and Damages Notes

Crescat scientia Vita excolatur
CHAPTER 1
GENERAL CONSIDERATIONS
Tort Definition
An unlawful violation of a private right, not
created by contract, and which gives rise to an
action for damages
An act or omission producing an injury to
another, without any previous existing lawful
relation which the said act or omission may be
said to be a natural outgrowth or incident
A private or civil wrong or injury, other than a
breach of contract, for which the court will
provide a remedy in the form of an action for
damages
A violation of a civil duty imposed by general
law or otherwise upon all persons occupying
the relation to each other that is involved in a
given transaction
Kinds of Tort Liability
1) Intentional Torts - conduct where the actor
desires to cause the consequences of his act or
believe the consequences are substantially
certain to result from it. This includes assault,
battery, false imprisonment and etc.
2) Negligence involves voluntary acts or
omissions that result in injury to others,
without intending to cause the same. The actor
fails to exercise due care in performing such
acts or omissions.
3) Strict Liability where the person is made
liable independent of fault or negligence upon
submission of proof of certain facts. The
conduct is generally not wrongful in itself but
wrong consists in causing harm by engaging in
certain types of risky activities. Examples of
which are Art. 2187 of the New Civil Code and
Art. 100 of the Consumer Act.
Art. 2187. Manufacturers and processors of
foodstuffs, drinks, toilet articles and similar
goods shall be liable for death or injuries caused
by any noxious or harmful substances used,
although no contractual relation exists between
them and the consumers.
ARTICLE 100. Liability for Product and Service
Imperfection If the imperfection is not corrected
within thirty (30) days, the consumer may
alternatively demand at his option: a) the
replacement of the product by another of the
same kind, in a perfect state of use; b) the
immediate reimbursement of the amount paid,
with monetary updating, without prejudice to
any losses and damages; c) a proportion price
reduction.
Scope and Applicable Laws
In the Philippines, the Commission decided to use the
term quasi-delict instead of tort because the
members believed that such use would not be accurate
because tort in Anglo-American law is much broader
that the Spanish-Philippines concept of obligations
arising from non-contractual negligence. Tort in AngloAmerican jurisprudence includes intentional criminal
acts like assault and battery, false imprisonment and
deceit. The general plan intended to be implemented
by the New Civil Code was for intentional acts to be
governed by the Revised Penal Code.
Catch-all Provisions
Art. 19. Every person must, in the exercise of
his rights and in the performance of his duties,
act with justice, give everyone his due and
observe honesty and good faith.
Art. 20. Every person who, contrary to law,
willfully or negligently causes damage to
another, shall indemnify the latter for the same.
Notes in
TORTS AND DAMAGES (Aquino)
Art. 21. Any person who willfully causes loss or

injury to another in manner that is contrary to
morals, good customs or public policy shall
compensate the latter for the damage.
Articles 19-21 were intended to expand the concept of
torts in this jurisdiction by granting adequate legal
remedy for the untold number of moral wrongs which
is impossible for human foresight to specifically provide
in the statues.
The coverage of Torts is much broader than culpa
aquiliana because it includes not only negligence, but
intentional criminal acts as well as assault and battery,
false imprisonment and deceit. In the general scheme
of Philippine legal system envisioned by the
Commission responsible for the drafting the New Civil
Code, intentional and malicious acts, with certain
exceptions, are to be governed by the Revised Penal
code while negligent acts or omissions are to be
covered by Art 2176 of the Civil Code.
Art. 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 preexisting contractual relation between the parties,
is called a quasi-delict and is governed by the
provisions of this Chapter.
Major Purposes of Tort Law
1) To provide a peaceful means for adjusting the
rights of parties who might otherwise take the
law into their own hands
2) Deter wrongful conduct
3) To encourage socially responsible behavior
4) To restore injured parties to their original
condition, insofar as the law can do this, by
compensating them for their injury
These purposes are sought to be achieved in the
pursuit of fundamental principle, like equity, justice,
democracy and respect for human dignity, which are
being upheld by the New Civil Code.
CHAPTER 2
NEGLIGENCE
Actionable Negligence may either be:
a. Culpa Contractual
b. Culpa Aquiliana
c. Criminal Negligence
The bases of liability are separate and distinct from
each other even if only one act or omission is involved.
STATUTORY BASIS AND REQUISITES.
There are five sources of obligations under Article 1157
of the NCC.
a. Law
b. Contracts
c. Quasi-Contracts
d. Delict
e. Quasi-delict
QUASI DELICT
Art. 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 preexisting contractual relation between the parties,
is called a quasi-delict and is governed by the
provisions of this Chapter.
Requisites:
| Acac | Batocail | Closas | Daming | Emnace | Flor | Maandig | Tropel | Quicoy |

1

(1) There must be an act or omission constituting
fault or negligence;
(2) Damage caused by the said act or omission;
and
(3) Casual relation between the damage and the
act or omission.
The elements of tort liability for negligence are
(1) Duty
(2) Breach
(3) Injury
(4) Proximate Cause
Duty refers to underlying general duty of care
which is in the nature of a public duty. The plaintiff
need not allege and prove the presence of duty in
order to successfully recover.
Breach refers to the negligent act or omission
Injury corresponds to the damage suffered by the
plaintiff.
Notes in
the penalty of arresto mayor in its medium and

maximum periods; if it would have constituted a
less serious felony, the penalty of arresto mayor
in its minimum period shall be imposed.
xxx
"Reckless imprudence consists in voluntarily, but
without malice, doing or failing to do an act from
which material damage results by reason of
inexcusable lack of precaution on the part of the
person performing or failing to perform such act,
taking into consideration his employment or
occupation, degree of intelligence, physical
condition and other circumstances regarding
persons, time and place.
"Simple imprudence consists in the lack of
precaution displayed in those cases in which the
damage impending to be caused is not immediate
nor the danger clearly manifest.
General Duty of Care

-
The defendant always owes a general duty of

care to the plaintiff as an imposition of society.
If the defendant believes that the action is not
covered by the general duty of care or if the
defendant believes that the case falls under an
exceptional case recognized by law or
jurisprudence where no duty is owed, the
defendant must allege and prove the same as
a matter of defense. It is not for the plaintiff to
prove the existence of duty as an element of
cause of action.
The obligation based on quasi delict must also have

essential requisites of obligation which include:
(1) An active subject who has the power to
demand a prestation
(2) A passive subject who is obliged
(3) An object consisting of an activity which must
be observed by the debtor;
(4) Vinculum Juris between the active and passive
subject because of which the debtor is bound
to the creditor and obliged to fulfil the desired
prestation.
Elements of a Crime
(a) The offender does or fails to do an act
(b) The doing or failure to do that act is voluntary
(c) It is without malice
(d) The material damage results from the reckless
imprudence; and
(e) There is inexcusable lack of precaution on the
part of the offender, taking into consideration
his employment or occupation, degree of
intelligence, physical condition, and other
circumstances regarding persons, time, and
place.
CONTRACT
Culpa Contractual is governed by the Civil Code
provisions of Obligations and Contracts particularly
Article 1170 to 1174.
Article 1170 provides that those who in the
performance of their duty is guilty of fraud, negligence,
or delay, are liable for damages.
DISTINCTIONS
(SEE TABLE BELOW)
Vinculum Juris Juridical element of obligations and

consists of the tie or relation by virtue of which the
debtor is bound to the creditor to satisfy a determinate
prestation.
Quasi Delict it is the wrongful or negligent
act or omission
Contractual Relations exists independently of
the breach of the voluntary duty assumed by
the parties when entering into contractual
relation.
DELICT
"Art. 365.
Imprudence and negligence. Any
person who, by reckless imprudence, shall
commit any act which, had it been intentional,
would constitute a grave felony, shall suffer the
penalty of arresto mayor in its maximum period
to prision correccional in its medium period; if it
would have constituted a less grave felony, the
penalty of arresto mayor in its minimum and
medium periods shall be imposed; if it would
have constituted a light felony, the penalty of
arresto menor in its maximum periodical shall be
imposed.
"Any person who, by simple imprudence or
negligence, shall commit an act which would
otherwise constitute a grave felony, shall suffer

2
Notes in
CULPA
CONTRACTUAL
CULPA
AQUILIANA
CULPA
CRIMINAL
There is a preexisting
obligation
(a
contract,
either expressed
or
implied)
There is no preexisting
obligation.
There is no
pre-existing
contractual
obligation.
Preponderance of
evidence
is
required.
Preponderance
of
evidence
is
needed.
The
crime
must be
proven beyond
reasonable
doubt.
Defense of good
father
of a family in the
selection and
supervision of
employees is not
a
proper
and
complete
defense but this
can
mitigate
liability
for
damages
Defense of a
good father
of a family in the
selection of the
employees is a
proper
defense of the
employer.
This
defense
cannot be
interposed. If
the
employee
is
insolvent or
incapable
to
pay the civil
aspect
or
liability, the
employer
is
subsidiarily
liable
The existence of a
contract must be
proven. If it is
proven
and it is also
proven that
the contract was
not
complied with, it
is
presumed
that
the
debtor is at fault.
The
fault
or
negligence
of the defendant
must
be proven.
Negligence is only
incidental to the
performance of an
existing obligation
based
on contract.
Negligence
is
direct,
substantive and
independent.
BASIS
The innocence
of the
accused
is
presumed
until
the
contrary is
proven.
Negligence is
direct,
substantive
and
independent.
BASIS
QUASI-DELICT
1. Legal basis
of liability
There can be a
quasi- delict as
long as there is
fault or negligence
resulting in
damage or
injury to another.
It is
broader in scope
than
crime.
2. Criminal
intent
Criminal intent is
no
necessary for
quasi-delict
to exist. Fault or
negligence without
intent will suffice.
Criminal intent is
essential for
criminal
liability to exist.
3. Nature of
right
violated
Right violated is a
private right.
Quasi-delict
is a wrongful act
against a private
individual.
Right violated is a
public
one. Crime is a
wrong
against the State.
4. Liability
for damages
Every quasi-delict
gives
rise to liability for
damages.
Some crimes (like

contempt, illegal
possession of
firearm) do
not give rise to
liability
for damages.
5. Proofs
needed
Proof of the fault

or
negligence
requires only
preponderance of
evidence.
The guilt of the

accused
must be proved
beyond
reasonable doubt.
6. Sanction
or penalty
Reparation or
indemnification of
the
injury or damage.
Punishment is
either
imprisonment,
fine or
both; sometimes
other
accessory
penalties are
imposed.
Quasi-Delict
DELICT OR
CRIME
There can be no
crime
unless there is a
law
punishing the act.
Culpa Contractual
1. Nature of negligence
Negligence is direct, substantive and

independent (Rakes vs. Atlantic, 7
Phil. 395)
Negligence is merely incidental to the performance of

the contractual obligation. There is a pre-existing
contract or obligation. (Rakes vs. Atlantic,supra)
2. Defense of good
father of a family
This is a complete and proper

defense insofar as parents,
guardians, employers are concerned
(Art. 2180,
last par.)
This is not a complete and proper defense in the

selection and supervision of employees. (Cangco vs.
MRC, infra.)
3. Presumption of
negligence
There is no presumption of
negligence. The injured party must
prove the negligence of the
defendant (Cangco vs.MRC, 38 Phil.
768).Otherwise, the complaint
of injured party will be
dismissed.
There is presumption of negligence as long as it can be

proved that there was breach of the contract. The
defendant must prove that there was no negligence in
the carrying out of the terms of the contract. (Cangco
vs. MRC, supra)

3

CONCURRENCE OF CAUSE OF ACTION
A single act or omission may give rise to two
or more causes of action
The obligation based on one is separate and
distinct from the other.
Example:
An act or omission causing damage to another may
give rise to two separate ciliv liabilities on the part of
the offender (1) civil liability ex delicto, under Article
100 of the Revised Penal Code (2) independent civil
liabilities such as (a) not arising from an act or
omission complained as felony such as Culpa
Contractual or arising from Culpa Aquiliana. But the
plaintiff cannot recover damages twice for the same
act or omission of the defendant.
Art. 2177. Responsibility for fault or negligence
under the preceding article is entirely separate
and distinct from the civil liability arising from
negligence under the Penal Code. But the
plaintiff cannot recover damages twice for the
same act or omission of the defendant.
Therefore, under Article 2177, acquittal from
an accusation of criminal negligence, whether
on reasonable doubt or not, shall not be a bar
to a subsequent civil action, not for civil
liability arising from criminal negligence, but
for damages due to a quasi-delict or culpa
aquiliana. But said article forestalls double
recovery.
CONCEPT OF NEGLIGENCE
Negligence omission of that degree of diligence
which is required by the nature of the obligation and
corresponding to the circumstances of persons, time,
and place.
Test of Negligence: 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.
-
Forseeablility is the fundamental test of

negligence but even if the particular injury was
not foreseeable, the risk is still foreseeable if
possibility of injury is foreseeable.
In negligence, risk means a danger which is
apparent, or should be apparent, to one in the
position of the actor. It is a risk that is
reasonably foreseeable.
Forseeability involves the question of
probability. If there is a great probability and
risk that damage will result, a person is
negligent if he did not xercise due diligence in
the face of such great probability.
Motive not material
Purely moral not covered
CALCULATION OF RISK
RISK BENEFIT ANALYSIS
The following circumstances must be considered:
(a) Gravity of harm to be avoided
(b) Utility of conduct or the social value it seeks to
advance
(c) Alternative course of action, dangers and
advantages to the person or property of the
actor himself and to others.
Reasonableness may depend upon five factors:
(a) The magnitude of risk
(b) The value or importance of that which is
exposed to the risk, which is the object that
Notes in
the law desires to protect, and maybe called

the principal object.
(c) A person who takes risk of injuring the
principal object usually does so because he has
some reason of his own for such conduct.
(d) The probability that the collateral damage will
be attained by the conduct which involves risk
to the principal
(e) The probability that the collateral object will be
attained without taking the risk.
THE HAND TEST
(RISK BENEFIT ANALYSIS THE HAND TEST DO
NOT APPLY IN THE PHILIPPINES!!!)
(The High Court by intuition determined if any of the
parties was negligent after weighing all the
circumstances)
CIRCUMSTANCES
TO
CONSIDER
IN
DETERMINING NEGLIGENCE
(a) Time
(b) Place
(c) Emergency Rule
(d) Gravity of Harm to be avoided
(e) Alternative course of action
(f) Social Value or Utility of activity
(g) Person exposed to the risk
Time
Place
-
A driver is required to exercise more prudence

if he is driving at night.
Travelling on a slippery road requires a higher
degree of diligence than driving on a dry road.
Emergency Rule
One who suddenly finds himself in a place of
danger, and is required to act without time to
consider the best means that may be adopted
to avoid the impending danger. Is not guilty of
negligence, if he fails to adopt what
subsequently and upon reflection may appear
to have been a better method, unless the
emergency in which he finds himself is brought
about by his own negligence,
Elements to be considered: (a) overall
circumstances; (b) Not applicable of Tortfeasor
created the emergency
Gravity Harm to be avoided
When human life is at stake, due care under
the circumstances requires everything that
gives reasonable promise of preserving life to
be done regardless of the difficulties.
Alternative course of action
There was unwarranted deduction as the
evidence for the petitioners convincingly shoes
that the car swerved into the trucks lane
because it approached the southern end of the
bridge, two kids darted across the road from
the right sidewalk into the lane of the car. The
car drivers entry into the lane of the truck was
necessary in order to avoid a greater peril
death or injury to the two boys.
Social Value or Utility of Activity
It was evident that the danger of using the
uninsulated high voltage wires was disregarded
because of the social value of providing
electricity to the public.
Person Exposed to the Risk
a. Children higher degree of diligence is
required if the person involved is a child. The

4
b.
owner of the premises cannot be heard to say

that because the child has entered upon his
premises without his express permission he is
a trespasser to whom the owner owes no duty
or obligation whatever.
Other trespassers Even if a person is
technically a trespasser, the owner of the
tenement may still be liable if the trespasser
will be injured due to an excavation that is
very near the highway.
STANDARD OF CONDUCT: GOOD FATHER OF A

FAMILY
Article 1173 of the New Civil Code
Good Father of a Family: referred to as the
reasonable man, man of ordinary intelligence
and prudence, or ordinary reasonable prudent
man.
Objective Standard
A. KNOWLEDGE AND EXPERIENCE OF THE ACTOR
The prudent man is expected to act according
to the circumstances that appear to him at the
time of the incident and he is not judged based
on his knowledge or experience after the
event.
B. CHILDREN
SEC. 6. Minimum Age of Criminal Responsibility. A child fifteen (15) years of age or under at the time of
the commission of the offense shall be exempt from
criminal liability. However, the child shall be subjected
to an intervention program pursuant to Section 20 of
this Act.
A child above fifteen (15) years but below eighteen
(18) years of age shall likewise be exempt from
criminal liability and be subjected to an intervention
program, unless he/she has acted with discernment, in
which case, such child shall be subjected to the
appropriate proceedings in accordance with this Act.
The exemption from criminal liability herein established
does not include exemption from civil liability, which
shall be enforced in accordance with existing laws.
-
A child under nine years of age must be

conclusively
incapable
of
contributory
negligence as a matter of law
Liability of Children
Does not include exemption from civil liability
which shall be enforced in accordance with
existing laws.
This liability is considered liability without fault
The absence of negligence or intent on the part
of the child may not excuse tha parents from
their vicarious liability under Article 2180 of
the Civil Code because they are liable for their
own negligence in the supervision of their
child.
The minor child, on the other hand, shall be
answerable with his own property in an action
against him if he has no parents or guardian.
David Taylor vs Manila Electric Railroad and Light
Company
16 Phil. 8 [1910]
FACTS
David Taylor was a 15 year old boy who spent time as
a cabin boy at sea; he was also able to learn some
principles of mechanical engineering and mechanical
drawing from his dads office (his dad was a
Notes in
mechanical engineer); he was also employed as a

mechanical draftsman earning P2.50 a day all said,
Taylor was mature well beyond his age.
One day in 1905, he and another boy entered into the
premises of Manila Electric power plant where they
found 20-30 blasting caps which they took home. In an
effort to explode the said caps, Taylor experimented
until he succeeded in opening the caps and then he
lighted it using a match which resulted to the explosion
of the caps causing severe injuries to his companion
and to Taylor losing one eye.
Taylor sued Manila Electric alleging that because the
company left the caps exposed to children, they are
liable for damages due to the companys negligence.
ISSUE
Whether or not Manila Electric is liable for damages.
HELD
No. The SC reiterated the elements of quasi delict as
follows:
(1) Damages to the plaintiff.
(2) Negligence by act or omission of which defendant
personally, or some person for whose acts it must
respond, was guilty.
(3) The connection of cause and effect between the
negligence and the damage.
In the case at bar, it is true that Manila Electric has
been negligent in disposing off the caps which they
used for the power plant, and that said caps caused
damages to Taylor. However, the causal connection
between the companys negligence and the injuries
sustained by Taylor is absent. It is in fact the direct
acts of Taylor which led to the explosion of the caps as
he even, in various experiments and in multiple
attempts, tried to explode the caps. It is from said acts
that led to the explosion and hence the injuries.
Taylor at the time of the accident was well-grown
youth of 15, more mature both mentally and physically
than the average boy of his age; he had been to sea as
a cabin boy; was able to earn P2.50 a day as a
mechanical draftsman thirty days after the injury was
incurred; and the record discloses throughout that he
was exceptionally well qualified to take care. The
evidence of record leaves no room for doubt that he
well knew the explosive character of the cap with
which he was amusing himself. The series of
experiments made by him in his attempt to produce an
explosion admit of no other explanation. His attempt to
discharge the cap by the use of electricity, followed by
his efforts to explode it with a stone or a hammer, and
the final success of his endeavors brought about by the
applications of a match to the contents of the cap,
show clearly that he knew what he was about. Nor can
there be any reasonable doubt that he had reason to
anticipate that the explosion might be dangerous.
The just thing is that a man should suffer the damage
which comes to him through his own fault, and that he
cannot demand reparation therefor from another.
C. PHYSICAL DISABILITY
The weakness of a person will not be an
excuse in negligent cases.
One who is physically disabled is required to
use the same degree of care that a reasonably
careful person who has the same physical
disability would use.

5

-
Notes in
Thus, a standard of conduct for a blind person

becomes that of a reasonable person who is
blind.
Roberts v. State of Louisiana

FACTS
The Plaintiff, an elderly gentleman, sued the
Defendant, the State of Louisiana (Defendant), when
he fell and broke his hip after being bumped into by
the blind operator of the concession stand at the
United States Post Office Building. The concession
operator failed to use his cane while walking from his
stand to the bathroom when the accident occurred. At
trial, the Plaintiffs suit was dismissed.
ISSUE
Was it reasonable for a blind man to walk from his
place of employment to the restroom without the use
of his cane?
HELD
The concession operator was not negligent
therefore the trial courts ruling is upheld.
and
Discussion. Because the blind operator, Burson, had

worked at the vending stand for several years and
because he testified that he does not use a cane for
short trips within familiar buildings, Burson was not
acting negligently when he bumped into the Plaintiff.
The court also looked at the testimony of the director
of the Division of Blind Services who said that nine out
of ten blind persons do not use their canes when
moving about familiar surroundings. The court also
considered Bursons testimony that he had special
training in moving about without a cane. Bursons
actions were reasonable for a blind person, working in
a familiar setting, with special training on moving
about without the use of a cane.
D. EXPERTS AND PROFESSIONALS
Those who undertake any work or calling for
special skills are required not only to exercise
reasonable care in what they do but also
possess a standard minimum of special
knowledge and ability.
A professional man should command the
corpus of knowledge which forms part of the
professional equipment of the ordinary
member of his profession.
When a person holds himself out as being
competent to do things requiring professional
skills, he will be held liable for negligence if he
fails to exhibit the care and skill of ONE
ORDINARY SKILLED in the particular work
which he attempted to do so.
Case Digest: Culion Ice, Fish And Electric Co V.
Phil Motors Corp. (1930)
G.R. No. L-32611
Lessons Applicable: Experts and Professionals
(Torts and Damages)
Philippine Motors Corporation and had a conference

with C.E. Quest, its manager, who agreed to do the
job, with the understanding that payment should be
made upon completion of the work.
The Philippine Motors Corporation was at this time
engaged in business as an automobile agency, but,
under its charter, it had authority to deal in all sorts of
machinery engines and motors, as well as to build,
operate, buy and sell the same and the equipment
therof.
Quest,
in
company
with
Cranston,
visited
the Gwendoline while it lay at anchor in the Pasig
River, and the work of effecting the change in the
engine was begun Upon preliminary inspection of the
engine, Quest came to the conclusion that the principal
thing necessary to accomplish the end in view was to
install a new carburetor, and a Zenith carburetor was
chosen as the one most adapted to the purpose.
After this appliance had been installed, the engine was
tried with gasoline as a fuel, supplied from the tank
already in use. The result of this experiment was
satisfactory. The next problem was to introduce into
the carburetor the baser fuel, consisting of a low grade
of oil mixed with distillate. In the course of the
preliminary work upon the carburetor and its
connections, it was observed that the carburetor was
flooding, and that the gasoline, or other fuel, was
trickling freely from the lower part to the carburetor to
the floor. This fact was called to Quest's attention, but
he appeared to think lightly of the matter and said
that, when the engine had gotten to running well, the
flooding would disappear.
January 30,1925 5 pm: The first part of the course
was covered without any untoward development, other
than the fact that the engine stopped a few times,
owing no doubt to the use of an improper mixture of
fuel. In the course of the trial Quest remained outside
of the engine compartment and occupied himself with
making distillate, with a view to ascertaining what
proportion of the two elements would give best results
in the engine.
7:30 pm: and when passing near Cavite, the engine
stopped, and connection again had to be made with
the gasoline line to get a new start. After this had been
done the mechanic, or engineer, switched to the tube
connecting with the new mixture.
A moment later a back fire occurred in the cylinder
chamber. This caused a flame to shoot back into the
carburetor, and instantly the carburetor and adjacent
parts were covered with a mass of flames, which the
members of the crew were unable to subdue. They
were therefore compelled, as the fire spread, to take
to a boat, and their escape was safely effected, but
the Gwendoline was reduced to a mere hulk. The
salvage from, the wreck, when sold, brought only the
sum of P150. The value of the boat, before the
accident occurred, as the court found, was P10,000.
ISSUE
W/N the incident was due to the negligence of Phil.
Motors as experts.
FACTS
January, 1925: Cranston decided, if practicable, to
have the engine on the Gwendoline changed from a
gasoline consumer to a crude oil burner, expecting
thereby to effect economy in the cost of running the
boat. He made known his desire to McLeod & Co., a
firm dealing in tractors, and was told by Mc Kellar that
he might make inquiries of the Philippine Motors
Corporations Cranston repaired to the office of the
HELD
YES. It results that the judgment appealed from,
awarding damages to the plaintiff in the amount of
P9,850, with interest, must be affirmed; and it is so
ordered, with costs against the appellant.
Ordinarily a back fire from an engine would not be
followed by any disaster, but in this case the leak

6

along the pipe line and the flooding of the carburetor
had created a dangerous situation, which a prudent
mechanic, versed in repairs of this nature, would have
taken precautions to avoid. The back fire may have
been due either to the fact that the spark was too
advanced or the fuel improperly mixed.
In this connection it must be remembered that when a
person holds himself out as being competent to do
things requiring professional skill, he will be held liable
for negligence if he fails to exhibit the care and skill of
one ordinarily skilled in the particular work which he
attempts to do. The proof shows that Quest had had
ample experience in fixing the engines of automobiles
and tractors, but it does not appear that he was
experienced in the doing of similar work on boats.
Quest did not use the skill that would have been
exhibited by one ordinarily expert in repairing gasoline
engines on boats = negligence. The test of liability is
not whether the injury was accidental in a sense, but
whether Quest was free from blame accident is
chargeable to lack of skill or negligence in effecting the
changes which Quest undertook to accomplish; and
even supposing that our theory as to the exact manner
in which the accident occurred might appear to be in
some respects incorrect, yet the origin of the fire in not
so inscrutable as to enable us to say that it was casus
fortuitus.
E.
-
INTOXICATION
Mere intoxication is not negligence, nor does
the mere fact of intoxication establish want of
ordinary care.
It is but a circumstance to be considered with
the
other
evidence
tending
to
prove
negligence.
Notes in
F.
-
INSANITY
Under the RPC, an insane person is exempt
from criminal liability. However, there may be
a civil liability even when the perpetrator is
held to be exempt from criminal liability.
The bases for holding a permanently insane
person liable for his tort are as follows:
(1) Where one of two innocent
persons must suffer a loss it
should be borne by one who
occasioned it;
(2) To induce those interested in
the estate of the insane person
(if he has one) to restrain and
control him; and
(3) The fear that an insanity
defense would lead to false
claims of insanity to avoid
liability.
G. WOMEN (Self-explanatory)
STANDARD V. SPECIFIC RULES
Rules are legal norms that are formal and
mechanical. 9Ex. Drive at not more than 60kph)
Standards flexible, context-sensitive legal norms that
require evaluative judgments in their application. (Ex.
Drive Safely)
-
Standards are the legal norms that are being

followed in the decideing negligent cases.
The courts do not prescribe specific rules of
conduct to be followed by all persons.
OTHER FACTORS TO CONSIDER IN DETERMINING

NEGLIGENCE
E.M. Wright vs Manila Electric Co
28 Phil 122 Civil Law Torts and Damages
Negligence
FACTS
In August 1909, E.M. Wright was driving his calesa
going home. He had drunk more wine than he
customarily does. Before he could be home, he would
have to cross the railroad tracks by Manila Electric. The
tracks were left unmaintained by Manila Electric so
much so that their elevation above the ground is quite
high. And while the calesa was crossing the tracks, the
horse tripped and the whole calesa fell down and
Wright was thrown off it. The lower court found that
Wright and Manila Electric were both negligent and as
per the ruling in Rakes vs Atlantic Gulf the lower court
apportioned the damage awarded to Wright.
ISSUE
Whether or not Wrights intoxication is the primary
cause of his injuries.
HELD
No. Manila Electric, and as even ruled by the lower
court, argued that had Wright been sober, he would
have not been thrown off the calesa. This is mere
guesswork and is not given credence by the SC
because its just a presumption that a sober man could
have avoided such accident. Intoxication is not
negligence per se. It is the general rule that it is
immaterial whether a man is drunk or sober if no want
of ordinary care or prudence can be imputed to him,
and no greater degree of care is required than by a
sober one. If ones conduct is characterized by a
proper degree of care and prudence, it is immaterial
whether he is drunk or sober.
VIOLATION OF STATUES AND ORDINACNES

Violation of statute may be treated either as:
(1) A
circumstance
which
establishes
a
presumption of negligence
(2) Negligence per se
(3) A circumstance which should be considered
together with other circumstances as evidence
of negligence.
-
The generally accepted view in the Philippines

is that the violation of a statutory duty
constitutes negligence, negligence as a matter
of law, or negligence per se.
Reason: The statute or ordinance becomes the
standard of care or conduct to which
reasonably prudent person is held.
Violation of Administration Rules/Violation of
Private Rues of Conduct: not negligence per se
but it may be evidence of negligence.
PROXIMATE CAUSE INDISPENSABLE: Although
violation of statute is negligence per se, the
plaintiff must still present proof that the
proximate case of his injury is negligence of
the defendant.
***In some cases, however, proof of violation of

statute and damage to the plaintiff may itself
establish a proximate cause. These are cases
where the damage to the plaintiff is the damage
that is sought to be prevented by the statute.
-
Statutes may also provide specific rules of

conduct to be observed in a given situation and
may even impose penal sanctions in case the
rule is not observed.

7

-
National Building Code and Fire Code of the

Philippines are examples of statues that
provide for specific rules of conduct.
It is believed that the better rule is to consider
violation of statute or administrative rules or
circumstances that gives rise to a presumption
of negligence unless the law provides
otherwise.
Practice and Custom: a practice which is
dangerous to human life cannot ripen into
custom which will protect anyone who follows
it.
Notes in
Petitioner criticizes the lower courts reliance on the

Mecenas case, arguing that, although this case arose
out of the same incident as that involved in Mecenas,
the parties are different and trial was conducted
separately. Petitioner contends that the decision in this
case should be based on the allegations and defenses
pleaded and evidence adduced in it or, in short, on the
record of this case.
ISSUES
Extraordinary diligence common carriers

Ordinary Diligence of good father of a family
Highest degree of care of good father of a family
1. Whether the ruling in Mecenas v. Court of Appeals,

finding the crew members of petitioner to be grossly
negligent in the performance of their duties, is binding
in this case;
2. Whether the award for damages in Mecenas v. Court
of Appeals is applicable in this case.
DEGREES OF NEGLIGENCE
HELD
Article 2231 of the Civil Code provides that in quasidelicts exemplary damages may be granted if the
defendant acted with gross negligence.
No. The contention is without merit.
DEGREE OF DILIGENCE
GROSS NEGLIGENCE there is want of even slight

care and diligence.
G.R. No. 110398 November 7, 1997
NEGROS NAVIGATION CO., INC., petitioner,
vs.
THE COURT OF APPEALS, RAMON MIRANDA, SPS.
RICARDO and VIRGINIA DE LA VICTORIA,
respondents.
FACTS
Private respondent Ramon Miranda purchased from the
Negros Navigation Co., Inc. four special cabin tickets.
The tickets were for Voyage No. 457-A of the M/V Don
Juan, leaving Manila and going to Bacolod.
Subsequently, the Don Juan collided off the Tablas
Strait in Mindoro, with the M/T Tacloban City, an oil
tanker owned by the Philippine National Oil Company
(PNOC) and the PNOC Shipping and Transport
Corporation (PNOC/STC). As a result, the M/V Don
Juan sank. Several of her passengers perished in the
sea tragedy. The bodies of some of the victims were
found and brought to shore, but the four members of
private respondents families were never found.
Private respondents filed a complaint against the
Negros Navigation, the Philippine National Oil Company
(PNOC), and the PNOC Shipping and Transport
Corporation (PNOC/STC), seeking damages for the
death. Petitioner, however, denied that the four
relatives of private respondents actually boarded the
vessel as shown by the fact that their bodies were
never recovered. Petitioner further averred that the
Don Juan was seaworthy and manned by a full and
competent crew, and that the collision was entirely due
to the fault of the crew of the M/T Tacloban City.
In finding petitioner guilty of negligence and in failing
to exercise the extraordinary diligence required of it in
the carriage of passengers, both the trial court and the
appellate court relied on the findings of this Court in
Mecenas v. Intermediate Appellate Court, which case
was brought for the death of other passengers. In
Mecenas, SC found petitioner guilty of negligence in
(1) allowing or tolerating the ship captain and crew
members in playing mahjong during the voyage, (2) in
failing to maintain the vessel seaworthy and (3) in
allowing the ship to carry more passengers than it was
allowed to carry. Petitioner is, therefore, clearly liable
for damages to the full extent.
Adherence to the Mecenas case is dictated by this

Courts policy of maintaining stability in jurisprudence.
Where, as in this case, the same questions relating to
the same event have been put forward by parties
similarly situated as in a previous case litigated and
decided by a competent court, the rule of stare decisis
is a bar to any attempt to relitigate the same issue.
No, it is not applicable.
Petitioner contends that, assuming that the Mecenas
case applies, private respondents should be allowed to
claim only P43,857.14 each as moral damages because
in the Mecenascase, the amount of P307,500.00 was
awarded to the seven children of the Mecenas couple.
Here is where the principle of stare decisis does not
apply in view of differences in the personal
circumstances of the victims. For that matter,
differentiation would be justified even if private
respondents had joined the private respondents in the
Mecenas case.
The doctrine of stare decisis works as a bar only
against issues litigated in a previous case. Where the
issue involved was not raised nor presented to the
court and not passed upon by the court in the previous
case, the decision in the previous case is not stare
decisis of the question presently presented.
The Mecenas case cannot be made the basis for
determining the award for attorneys fees. The award
would naturally vary or differ in each case.
WHEREFORE, the decision of the Court of Appeals is
AFFIRMED with modification and petitioner is ORDERED
to pay private respondents damages.
PROOF OF NEGLIGENCE
BURDEN OF PROOF
If the plaintiff alleged in his complaint that he
was damaged because of the negligent acts of
the defendant, the plaintiff has the burden of
proving such negligence subject to certain
exceptions.
The presence of negligence maybe established
by:
(a) Testimonial
(b) Documentary
(c) Real Evidence
The testimonies of persons who witnessed the
incident may support the allegations of the

8

plaintiff that was negligence on the part of the
defendant.
Notes in
-
PRESUMPTIONS
Art. 2184. In motor vehicle mishaps, the owner is
solidarily liable with his driver, if the former, who
was in the vehicle, could have, by the use of the
due diligence, prevented the misfortune. It is
disputably presumed that a driver was negligent,
if he had been found guilty or 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.
Art. 2185. Unless there is proof to the contrary, it
is presumed that a person driving a motor
vehicle has been negligent if at the time of the
mishap, he was violating any traffic regulation.
Art. 2186. Every owner of a motor vehicle shall
file with the proper government office a bond
executed by a government-controlled corporation
or office, to answer for damages to third persons.
The amount of the bond and other terms shall be
fixed by the competent public official.
Art. 2187. Manufacturers and processors of
foodstuffs, drinks, toilet articles and similar
goods shall be liable for death or injuries caused
by any noxious or harmful substances used,
although no contractual relation exists between
them and the consumers.
-
The party invoking a presumption must still

establish certain factual preconditions before
the presumption can operate.
Article 2185 requires proof that there was a
violation of a traffic regulation
Article 2188 requires proof of profession of
dangerous weapons or substances such as
firearms and poison.
Article 2185 does not apply to Non-Motorizd
Vehicles
RES IPSA LOQUITOR.

The thing speaks for itself.
Function: to aid the plaintiff in proving the
elements
of
a
negligence
case
by
circumstantial evidence.
Requisites:
(a) The accident is of a kind which ordinarily does
not occur in the absence of someones
negligence;
(b) It is caused by an instrumentality within the
exclusive control of the defendant or
defendants; and
(c) The possibility of contributing conduct which
would make the plaintiff responsible is
eliminated.
Control of the Instrumentality which the caused the
damage is fundamental.
The doctrine is a rule of necessity, in that it
proceeds on the theory that under the
particular circumstances in which the doctrine
is applicable, it is within the power of the
defendant to show that there was no
negligence on his part, and direct proof of
defendants negligence is beyond plaintiffs
power.
For it 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.
CASE WHEN DOCTRINE WAS APPLIED

Africa vs. Caltex, 16 SCRA 448
FACTS
In the afternoon of March 18, 1948, a fire broke out at
the Caltex service station at the corner of Antipolo St.
and Rizal Avenue, Manila. It started while gasoline was
being hosed from a tank truck into the underground
storage, right at the opening of the receiving tank
where the nozzle of the hose was inserted. The fire
spread to and burned several houses. The owners,
among them petitioner spouses Africa and heirs of
Ong, sued respondents Caltex Phil., Inc., the alleged
owner of the station, and Mateo Boquiren, the agent in
charge of its operation, for damages. The CFI and CA
found that the petitioners failed to prove negligence of
the respondents, and that there was due care in the
premises and with respect to the supervision of their
employees.
ISSUE
Whether or not, without proof as to the cause and
origin of the fire, the doctrine of res ipsa
loquitur should apply so as to presume negligence on
the part of the respondents.
HELD
Yes.
Res ipsa loquitur literally means the thing or
transaction speaks for itself. For the doctrine of res
ipsa loquitur to apply, the following requisites should
be present: (a) the accident is of a kind which
ordinarily does not occur in the absence of someones
negligence; (b) it is caused by an instrumentality
within the exclusive control of the defendant or
defendants; and (c) the possibility of contributing
conduct which would make the plaintiff responsible is
eliminated. In the case at bar, the gasoline station,
with all its appliances, equipment and employees, was
under the control of respondents. A fire occurred
therein and spread to and burned the neighboring
houses. The persons who knew or could have known
how the fire started were respondents and their
employees, but they gave no explanation thereof
whatsoever. It is a fair and reasonable inference that
the incident happened because of want of care. The
negligence of the employees was the proximate cause
of the fire, which in the ordinary course of things does
not happen. Therefore, the petitioners are entitled to
the award for damages.
CASE
WHEN
INAPPLICABLE
DOCTRINE
WAS
HELD
Layugan vs. IAC; Torts- vicarious liability of

owner of a truck
G.R. No. 73998 November 14, 1988
FACTS
Pedro T. Layugan filed an action for damages against
Godofredo Isidro, alleging that while at Baretbet,
Bagabag, Nueva Vizcaya, the Plaintiff and a companion
were repairing the tire of their cargo truck which was
parked along the right side of the National Highway;
that defendant's truck, driven recklessly by Daniel

9

Serrano bumped the plaintiff, that as a result, plaintiff
was injured and hospitalized where he incurred and
will incur more expenses as he recuperates from said
injuries; Plaintiff's right leg was amputated and that
because of said injuries he would be deprived of a
lifetime income.
To free themselves from liability, defendants Isidro
[owner] and Serrano [driver] averred that he knows
his responsibilities as a driver and further contends
that it was the negligence of plaintiff that was the
proximate cause of the accident. They alleged that
plaintiff parked his truck in a manner which occupied a
part of the highway and he did not even put a warning
sign.
Subsequently, a third-party complaint was filed by the
defendant against his insurer, the Travellers Multi
Indemnity Corporation; that the third-party plaintiff
[Isidro], without admitting his liability to the plaintiff,
claimed that the third-party defendant [Travellers] is
liable to the former for contribution, indemnity and
subrogation by virtue of their insurance contract which
covers the insurer's liability for damages arising from
death, bodily injuries and damage to property. The
Insurance company argued that it is only liable for the
amount agreed in the policy and the complaint was
premature since no claim was made to it.
The RTC ruled in favor of the Petitioners. The CA
reversed the decision, stating that it is the petitioners
who were negligent since they did not exercise
caution by putting warning signs that their truck is
park on the shoulder of the highway.
ISSUE
Whether or not Isidro is liable as employer of Serrano.
RULING
Yes!
The SC held that the CA erroneously appreciated the
evidence. It was proven that the petitioner placed a
warning sign within 3 to 4 meters from their truck in
the form of a lighted kerosene lamp. The existence of
this warning sings was corroborated by Serrano,
respondent's driver, and further stated that when he
saw a parked truck, he kept on stepping on the brake
pedal but it did not function. Thus despite this warning
signs, the truck recklessly driven by Serrano and
owned by Respondent Isidro bumped the truck of
petitioner.
The private respondent is sued under Art. 2176 in
relation to Art. 2180, paragraph 5, of the Civil Code. In
the latter, 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 selection, or both. Such presumption is juris
tantum and not juris et de jure and consequently, may
be rebutted. If follows necessarily that if the employer
shows to the satisfaction of the court that in the
selection and in the 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. In disclaiming liability for the incident, the
private respondent stresses that the negligence of his
employee has already been adequately overcome by
his driver's statement that he knew his responsibilities
as a driver and that the truck owner used to instruct
him to be careful in driving.
We do not agree with the private respondent in his
submission. In the first place, it is clear that the driver
Notes in
did not know his responsibilities because he apparently

did not check his vehicle before he took it on the road.
If he did he could have discovered earlier that the
brake fluid pipe on the right was cut, and could have
repaired it and thus the accident could have been
avoided. Moveover, to our mind, the fact that the
private respondent used to intruct his driver to be
careful in his driving, that the driver was licensed, and
the fact that he had no record of any accident, as
found by the respondent court, are not sufficient to
destroy the finding of negligence of the Regional Trial
Court given the facts established at the trial. The
private respondent or his mechanic, who must be
competent, should have conducted a thorough
inspection of his vehicle before allowing his driver to
drive
it.
In the light of the circumstances obtaining in the case,
we hold that Isidro failed to prove that the diligence of
a good father of a family in the supervision of his
employees which would exculpate him from solidary
liability with his driver to the petitioner. But even if we
concede that the diligence of a good father of a family
was observed by Isidro in the supervision of his driver,
there is not an iota of evidence on record of the
observance by Isidro of the same quantum of diligence
in the supervision of his mechanic, if any, who would
be directly in charge in maintaining the road
worthiness of his (Isidro's) truck. But that is not all.
There is paucity of proof that Isidro exercised the
diligence of a good father of a family in the selection of
his driver, Daniel Serrano, as well as in the selection of
his mechanic, if any, in order to insure the safe
operation of his truck and thus prevent damage to
others. Accordingly, the responsibility of Isidro as
employer treated in Article 2180, paragraph 5, of the
Civil Code has not ceased.
CULPA CONTRACTUAL
The doctrine of res ipsa loquitor generally finds
relevance whether or not a contractual
relationship exists between the plaintiff and the
defendant, for the inference of negligence
arises from the circumstances and nature of
the occurrence and not from the nature of the
relation of the parties.
CHAPTER 3
AFFIRMATIVE DUTIES
PART 1: NATURE OF MISFEASANCE AND NONFEASANCE
Misfeasance vs Non- Feasance
Under the CC, Fault or Negligence consists in
not acting as one should. ( Negative in Nature)
While there is a negative duty of care toward
others, there is no general positive duty of
care; rather positive duties exist only where
there is a special relationship.
Misfeasance: is the breach of a general
negative duty
Non-Feasance: is the breach of affirmative
duty.
Difference between the two:
1. Character of the Conduct
2. Nature of the detriment suffered in
consequence thereof.
In case of misfeasance, the victim position is
changed for the worse through the creation of

10

a negative quantity in the form of positive loss
or new harm. In cases of nonfeasance, there is
merely a failure to benefit the victim, which is
a loss only in the sense that a positive quantity
is not added.
PART 2: DUTY TO RESCUE
Duty to the Rescuer:
The one who was hurt while trying to rescue
another who was injured through negligence
may recover damages. (Santiago vs Deleon)
Conduct which might otherwise be considered
contributory negligence may not be so
considered where a person is injured in
attempting to save others from imminent
danger of personal injury or death.
The duty to the rescuer is not an affirmative
duty imposed by law. The duty to the rescuer
is part of the general duty of the actor.
Requisite:
1. The defendant tortfeasor was negligent to
the person rescued and such negligence
caused the peril or appearance of peril to the
person rescued.
2. The peril or appearance of peril was
imminent.
3. A reasonably prudent person who would
have concluded such peril or appearance of
peril existent.
4. The rescuer acted with reasonable care in
effectuating the rescue.
Duty to Rescue
No duty to rescue is recognized in common
law.
Exception:
A. Art. 275 of the Revised Penal Code
imposes a limited duty to rescue and the
abandonment of helpless person is considered,
under certain circumstance, as a crime against
security.
1. Person wounded or in danger in an
uninhibited place
2. Person whom he accidentally wounded or
injured.
3. Child below 7 years of age.
B. Sec. 55 of RA 4136
- No driver of a motor vehicle concerned in a
vehicular accident shall leave the scene of the
accident without aiding the victim, except
under the following circumstances:
1. If he is in imminent danger of being
seriously harmed by any person or persons by
reason of the accident
2. If he reports the accident to the nearest
officer of the law
3. If he has summon a physician or nurse to
aid the victim
PART 3: OWNER, PROPRIETORS AND

POSSESSORS
Generally, the owner is not liable to any
person who might be damaged if he merely
exercise his right as owner. Damage to any
Notes in
person resulting from the exercise of any right

of ownership is DAMAGE WITHOUT INJURY.
Trespasser: The Owner has no duty to take
reasonable care towards a trespasser for his
protection or even to protect him from
concealed danger.
Tolerated Possessor: The owner is liable if
the plaintiff is inside his property by tolerance
or by implied permission.
Visitor: The owner is liable if the plaintiff is
inside his property for he owe a duty of care to
visitors.
Common Carriers: The common carrier may
be held liable for negligence to persons who
stay in their premises even if they are not
passenger under implied invitation. They are
liable for so long as the passenger are within
its premises and where they ought to be in
pursuance to the contract of carriage. They are
required to exercise utmost diligence of very
cautious person with due regards for all
circumstance.
Children
and
Attractive
Nuisance
(Exception to the General Rule): Liability exist
even if the child is a trespasser so long as he is
not of sufficient age or discretion. Under the
Attractive Nuisance Rule, the owner is liable if
he maintains in his premises dangerous
instrumentalities or appliances of a character
likely to lure children to and he fails to exercise
ordinary care to prevent children of tender age
from playing therewith or resorting thereto.
In Hidalgo Ent. vs Balandan, the court ruled
that a swimming pool or pond or reservoir of
water is not considered an attractive nuisance.
Nature created streams, lakes and pools which
attract children. Lurking in their waters is
always the danger of drowning.
Turn Table Cases refer to a class of cases
where the owner of the property is held liable
to children who are trespassing thereon and
injured, upon the ground that the owner is
bound to know that children are attracted and
may be injured thereby, although the owner is
guilty of no negligence except for maintaining
the property in such condition that the children
may trespass thereon to their harm.
Neighbor and third Person (Exception to the
General Rule) Article 431 of NCC provides that
an owner cannot use his property in such
manner as to injure the right of the others.
Thus, an exercise of the right of the owner
may give rise to an action based on quasi
delict if the owner negligently exercises such
right to the prejudiced of another.
State of Necessity (Exception to the General
Rule) owner and possessor of real estate also
owe a duty to allow trespassers, who are in a
state of necessity, to enter their properties, in
order to avert threatened damage, compared
to damages arising from the owners
interference, is much greater.
Liability of Proprietors of Building
Art. 2190: Proprietor of a building or structure
is responsible for the damages resulting from
its total or partial collapse, if it should be due
to the lack of necessary repairs.
Art. 2191: Proprietors shall also be responsible
for damages caused:

11

1. By the explosion of machinery which has not
been taken care of with due diligence and the
inflammation of explosive substances which
have not been kept in a safe and adequate
place;
2. By excessive smoke, which may be harmful
to persons or property;
3. By the falling of trees situated at or near
highways or lanes, if not caused by force
majeure;
4. By emanations from tubes, canals, sewers
or deposits of infectious matter, constructed
without precautions suitable to the place.
PART 4: EMPLOYERS AND EMPLOYEE
Employers
Labor Code imposes upon the employer certain
duties with respect to the proper maintenance
of work place or the provision of adequate
facilities to ensure the safety of the employees.
Failure on the part of the employer to comply
with such mandatory provisions may be
considered negligence per se.
Employer is bound to exercise that measure of
care which reasonably prudent men take under
similar circumstances.
Employees
Employees are also bound to exercise due care
in the performance of their functions for the
employers.
CHAPTER 4
MALPRACTICE
PART 1: MEDICAL MALPRACTICE OR NEGLIGENCE

OF HEALTH CARE PROFESSIONALS
DOCTORS
Doctors or physicians are experts, who, because of
their training and the very nature of their work, are
required to exercise UTMOST diligence in the
performance of their task. ( Batiquin vs CA)
Doctor-Patient Relationship
Is created when the professional services of
the physician are rendered to and accepted
byanother for purposes of medical or surgical
treatment.
Factual issue.
The relationship is basically a contractual
relationship. Hence, the liability of the doctor
for negligence may arise from contract.
Elements of Liability for Medical Malpractice
Source of Obligation: Delict, Quasi-Delict
and ex-contractu
Requisite when Liability is based on quasidelict
a. An act or omission constituting fault or
Negligence
b. Damage suffered by the injured party
c. Causal relation between the damage and
the act or omission.
4 elements of Medical Malpractice (Lucas et.
al. vs Tuano):
Notes in
1. Duty
3. Injury
2. Breach
4. Proximate Causation
Doctors have a duty to use at least the same

level of care that any other reasonably
competent doctors would use to treat a
condition under the same circumstance
(Garcia-Rueda vs Pascasio)
General Practitioners vs Specialist

Degree of Diligence Required:
A. General Practitioner
- Ordinary care and diligence in the
application of his knowledge and skill in his
practice of the profession. He ought to apply to
his patients what other general practitioner will
apply when confronted with similar situations.
B. Specialist
- The standard of care and skill of the
average member of profession practicing the
specialty.
National
Standards
vs
Locality
Rule
vs
Neighborhood Rule
The two forms of duty of care, as it thus
emerge from considerations of reason and
fairness, when applied to the facts of the world
of medical science and practice:
1. National Standard: The duty to render
quality of care consonant with the level of
medical and practical knowledge of the
physician may reasonably be expected to
possess and the medical judgment he may be
expected to exercise.
2. Locality Rule: The duty is based upon the
adept use of such medical facilities, services,
and equipment and options as are reasonably
available.
3. Neighborhood Rule: Physician is under a
duty to the patient to exercise that degree of
care, skill and diligence which physicians in the
same general neighborhood and in the same
general line of practice ordinarily possess and
exercise in alike cases. (Nota Bene : Unless the
court intends to impose proximity as an
element of liability based on quasi delict, it is
best to avoid the term neighborhood in setting
the standard of care to determine if the doctor
is negligent.)
Doctors are not Warrantor of Cure

-
Difficulties and uncertainties in the practice of

profession are such that no practitioner can
guarantee results.
Error of judgment will not necessarily
make the physician liable. Whether the
error is negligent or not depends on the
nature of error.
If it is one would not have been made a
reasonably
competent
professional
man
professing to have the standard and type of
skill that the defendant held himself out as
having, and acting with ordinary care, then it is
negligent. If, on the other hand, it is an error

12
Notes in
that a man, with ordinary care, might have

made, then it is not negligent.
Proof
The critical and clinching factor in a medical
negligence case is the proof of causal relation
between the negligence which the evidence
establish and the plaintiffs injuries.
Causation must be proven with a reasonable
medical probability based upon competent
expert testimony.
Expert testimony should be offered to prove
that the circumstances cited are constitutive of
conduct falling below the standard of care
employed by other physicians in good
standing.
In an Expert testimony it is essential to
determine the reasonable level of care and the
breach thereof.
Documents to support Expert Testimony:
1. Clinical Literature
2. Pharmaceutical
Package
3. Learned Treatise
4.
Research
Findings
5. Physician desk Reference 6. Clinical Practice
Guide
Res Ipsa Loquitur
In cases of medical negligence, the doctrine of
res ipsa loquitor allows the mere existence of
an injury to justify a presumption of the
negligence on the part of the person who
controls the instrument causing the injury.
Requisite:
1. The accident is of a kind which ordinarily
does not occur in the absence of someones
negligence.
2. It is caused by an instrumentality within the
exclusive control of the defendants.
3. The possibility of contributing conduct which
would make the plaintiff responsible is
eliminated.
- It is application is limited only to cases where
the court from its fund of common knowledge
can determine the standard of care.
Lost Chance Rule
WON the patient can recover for the lost
opportunity to obtain a better degree of
recovery?
Yes! Plaintiff can claim that prior to negligence,
there was a chance that he would have been
better off with adequate care. Because of the
negligence, this chance has been lost.
Lost of chance is the lost of opportunity for
better result.
Doctrine of Informed Consent.
Doctors must secure consent of his patient.
It may be express or implied
Doctor may be liable for quasi delict if he
negligently failed to secure the needed consent
of his patient. The liability is imposed because
the doctors fails to warn the patient.
Cobbs vs Grant; the liability of the physician
exist for the failure to inform the patient there
must
be
causal
relationship
between
physicians failure ti inform and the injury to
patient and such connection arises only if it
established that, had the revelation been
made, consent to treatment would not have

been given.
Elements:
1. Physician had a duty to disclose material
risk
2. The Physician failed to disclose or
inadequately disclosed those risks
3. As a direct and proximate result of the
failure to disclose, the patient consented to
treatment she otherwise would not have
consented to.
4. The plaintiff was injured by the proposed
treatment.
The particular quality or quantity of disclosure
will remain inextricably bound by the fact of
each case.
Professional Disclosure Standard: a charge
of failure to disclose should be judged by the
standards
of
the
reasonable
medical
practitioner (expert testimony). Prevailing Rule
as enunciated in Dr. Rubi Li vs Spouses
Soliman
Reasonable Patient Standard: The test for
determining whether a particular peril must be
divulge is its materiality to the patients
decision, all risk potentially affecting the
decision must be unmasked.
Exception to the Doctrine:
1. Emergency Cases
2. Unconscious Patients and incapable of giving
consent; provided treat is imminent and
outweighs any harm threatened by the
proposed treatment.
3. Therapeutic Privilege (A candid and
thorough disclosure of the information will
have an adverse effect on the patients
condition or health)
Captain of the Ship Doctrine

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.
Liability of the Hospital
Where an employment relation exist, the
hospital maybe held vicariously liable under
Art. 2176 in relation to Art. 2180 of the CC or
the principle of respondeat superior.
Even id there is no employment relation exist
of the hospital holds the doctor as its agent it
is still vicariously liable under Art. 2176 in
relation to Art. 1431 and 1869 of the CC.
Moreover, regardless of its relation to the
doctor, the hospital may be held directly liable
to the patient for its own negligence or failure
to follow established standard of conduct to
which it should conform as a corporation.
(Doctrine of Corporate Responsibility)
Nurses
Standard and Degree of Care
Sec. 28 of RA 9173 expressly provides that
nurses must uphold the standards of safe
nursing practice. The standard is a national
standard.
A nurse who assumes the care of a patient
must exercise that degree of skill, care, and
knowledge ordinarily possessed by other
nurses under the same circumstances.

13

-
Examples of Negligence of Nurses:

1. Medication error
2. Burns in Patients
3. Assessment and Monitoring error
4. Leaving of foreign Objects (Nurses is held
jointly and solidarily liable with the surgeon)
5. Failure to protect the patient.
Pharmacist
Standard and Degree of Care

The degree of care is that of a person of
ordinary prudence engaged in the profession
who are accustomed to the use under the
same or similar circumstances.
Ordinary prudence is further defined as the
highest practicable degree of prudence and the
most exact and reliable safeguards consistent
with the conduct of the profession.
Res Ipsa Loquitor applies.
Non observance of statutory duty is per se
neglect of duty, as well as neglect of care.
Clinical Laboratories
Owner and operators have the duty to comply
with the statutes.
Their business is impressed with public
interest,
as
such,
high
standards
of
performance is expected from them.
PART 2: NEGLIGENCE OF LAWYERS

Basis of Responsibility
The Code of Professional responsibility governs
the conduct of the lawyer.
A lawyer shall serve his client with competence
and diligence. (Canon 8)
A lawyer shall not neglect a legal matter
entrusted to him and his negligence in
connection therewith shall render him liable.
(Canon 18.03)
Liability of a Lawyer
An attorney is not bound to exercise
extraordinary diligence, but only a reasonable
degree of care and skill, having reference to
the character of the business he undertakes to
do.
Lawyers Liability may not be based solely on
the fact that his client lost the case.
It is enough that with the thorough preparation
of the case handled by him, he had taken all
the steps to prosecute his suit.
Where a judgement became final through the
fault of the lawyer who did not appeal
therefrom , the fact alone is not a sufficient
ground for the losing party to recover damages
from his lawyer since the action for damages
rest on the unsubstantiated and arbitrary
supposition of the injustice of the decision
which became final through the fault and
negligence of the lawyer.
PART 3: NEGLIGENCE OF ACCOUNTANTS
Accountants
Experts in the field of accounting.
Accountants are liable based on contract and
quasi contract for any negligent act that the
caused damaged or injury to his client.
The standard to be applied is that of an
ordinary accountant skilled in the knowledge,
Notes in
science, skill and practice of accounting

rendering his professional services for his or
her client.
CHAPTER 5
NEGLIGENCE OF SELECTED BUSINESS
ORGANIZATIONS
General rule in Chapter 2 apply to these Business
organizations including the same test of negligence
and Test in Chapter 2.
1. Schools and Administrators
Liability is in a form of VICARIOUS liability
under Artilce 2180..
Negligence is ascrible to the school as itself an
entity. Liability is not imuputed and the
defense of due diligence in the selection and
supervision of the schools employees is not a
defense. What applies is the DOCTRINE OF
CORPORATE RESPONSIBILITY.
Schools can also be made liable based on
contract and quasi-Delict and also in their
exercise of special parental authority under the
Family Code.
2. Liability of School Based Contracts
School student relationship is contractual in
nature
In Phi. School Business Administration v CA
the court explain why a school can be held
liable as an obligor for a breach in contract:
When an Academic institution accepts students for
enrolment there is a established contract between
them. The school for its part undertakes to provide
quality education that presumable would suffice to
equip the student with the necessary tools and skills to
pursue a higher education or profession. On the other
hand the student must abide by the schools academic
requirements and observe its rules. Certainly no
student can absorb a proper learning when bullets are
flying or grenades are exploding or where there looms
around the school premises a constant threat to life
and limb. The School then must ensure that the
adequate steps are taken to maintain peace and order
within the campus premises and to prevent the
breakdown thereof.
3. Liability for Schools for Quasi-Delict
Regino v Pangasinan Colleges of Science and
Technology
Academic institution may be held liable for tort
even if it has na existing contract with its student since
the acct that violated the contract may also be a tort.
4. Examples of Negligence of Schools and
Administrators
Child Learning Center v Tagario
Timothy
was
a
preschool
student
of
Marymount School. Was trapped in a small toilet in the
thirdfloor of a school building. He was shouting for help
but no help came. He tried to open a window to shout
for help. Upon opening the window Timothy fell down
three stories hight. Timothy suffered multiple serious
injuries. The School was made directly and primarily
liable under Article 2176. The liability is not vicarious
because the obligation to provide safe facilities is
imposed directly on the corporation (school).
A. Juaquinita
P.
Capili
vs
Spouses
Cardana
Jasmin walking along the perimeter fence of
San Roque Elementary school when a branch of
Caimito fell over her causing death. Her parents filed a

14

case on the school for being negligent. The Supreme
court sustained the award for damages.
A negligent act is an inadvertent act; it may be

merely carelessly done form 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.
The probability that the branches of a dead

and rotting tree could fall and harm someone
is clearly a danger that is forseable. As the
school principal, he/she was tasked to see to
the maintenance of the school grounds and
safety of the children within the school and its
premises.
As school principal, he/she is expected to

oversee the safety of the schools premises.
The fact that she failed to see the immediate
danger posed by the dead and rotting tree
shows she failed to exercise the responsibility
demanded by her position.
Moreover even if petitioner had assigned

disposal of the tree to another teacher, she
exercises supervision over her assignee. The
record shows thaht more thahn a month had
lapsed form the time the Principal gave
instruction to her assistant to the tome the
incident occurred. Clearly she failed to check
seasonably if the danger caused by the rotting
tree had been removed. Thus the court cannot
accept her defense of lack of negligence.
5. BANKS
a. Business of banks is one affected with public
interest. A bank is under the onligation to treat
the accounts of its depositors with meticulous
care, always having in mind the fiduciary
nature of their relationship. The law imposes
on banks a high degree of obligation on the
confidence of the people in the honesty and
efficiency of banks
b. Depositor may file an action for damages
under article 2176 if through the falt of the
banks employee the secretary of the depositor
was able to fraudulently divert his funds from
his account to the account of the secretarys
husband. SC found that there was contributory
negligence on the part of the depositor but
considered the negligence of the bank and its
employees as the proximate cause of theloss.
c. Bank is also liable if it wrongfully dishonors the
check issued by the depositor even if terhere
are sufficient funds in the account and even if
there is no valid justification to do so. If bank
dishonoured the check because the bank
employees negligently failed to credit a
previous deposit, the bank may be held liable
for damages including damage to the business
reputation of the client and moral damages for
the embarrassment and humiliation it caused.
d. Negligence may also justify liability if there is
forgery. The general rule under Negotiable
Instruments law is a forged signature is wholly
inoperative and payment made through that
signature is ineffectual and does not discharge
the instrument. The exception is when the
party relying on the forgery is precluded from
setting up forgery or want of authority. SC
thus held that if an endorsement was forged
the right rights and liabilities of the drawee
bank and the collective bank are determined
by looking at the relative negligence of the
parties involved.
6. FIREARMS DEALER ( Firearms related
Negligence)
Notes in
A higher degree of care is required of someone

who has in his possession or under this control
an instrumentality extremely dangerous in
character such as dangerous weapons and
substances. The person in possession of such
instruments has the duty to take exceptional
precautions to prevent any injury being done
thereby.
Gun
storeowner
is
presumed
to
be
knowledgeable about firearms safety and
should know never to keep a loaded weapon in
his store to avoid unreasonable risk of harm or
injury to others. He has the duty to ensure
that all guns in his store are not loaded.
Paci vs Morales
Child was accidentally hit by a bullet of
a gun who went off in a gun store by a mistake
of a sales agent. The gun was bought in the
store for repair. The court ruled that the gun
storeowner was clearly negligent when he
accepted the gun for repair and placed it inside
the drawer without ensuring first that it was
not loaded. For failing to insure that the gun
was not loaded the owner or proprietor himself
was negligent.
7. Security Agency and Guard
Guard and his security agency are liable for the
formers negligence in handling his firearms.
Safeguard Security Agency Inc. vs Tangco
Evangeline a duly licensed firearm holder went

to the bank to transact a business. Upon
entering she wanted to deposit her firearm to
the guard outside the bank. Upon pulling out
her firearm the guard immediately shot her in
the abdomen using the service shotgun and
causing instant death.
The guard was basing his defense on Self

Defense on the ground that Evangeline migt
rob the bank.
The SC sustained the finding that liability may

be imposed under article 2176 because the
scope of the same provision is not limited to
acts or ommisions resulting from negligence.
SC: It is therefore clear that the alleged threat

of a bank robbery was just a figment of
Pajarillos (the guard) imagination which
caused such unfounded unlawful aggression on
his part.
Solidary liability for damages was both

imposed on the security guard (Art 2176) and
the agency (Art. 2180)
Lamis v Ong
The fact that the act was intention (frustrated

homicide) DID NOT BAR the application of
2176.
Sandigan is a security agency. Lamis is a

security guard under such agency assigned at
a particular cemetery. The cemetery had a
schedule for visitation from 6:00 am to 6:00
pm. Sometime in September 1994 around 3
am A Car (Lancer) was attempting to go inside
the gated cemetery. Lamis informed the
person that the cemetery was closed but to no
avail. The man in the car insisted on trying to
get in by sounding the cars horn over and
over again. The guard gave a wardning shot
from his issued weapon. Subsequently The
driver went outside the car to ccheck the gate
seeing as it is closed he went back inside the
car but before he can get inside he was shot by
Lamis. Fortunately he managed to go to the
nearest hospital. Thereafter filed a case
against Lamis. Lamis was held liable and was
ordered to pay the hospital bills. Consequently
Sadigan was also liabke and paid Lamis
mother the amout spent for medical expenses.

15
Notes in
8. Resort and Swimming Pool Operator

Well settled is the rule that the owners of
reosrts to which peoole generally are expressly
or by implication invited are legally bound to
exercise ordinary care and prudence in the
management and maintenance of such resorts
to the end of making them reasonably safe for
visitors.
him back to life. From manual rescusitation to the use

of oxygen tanks to use of camphorated oil. They also
sent for a physician who came and saw the body of
Ong and tried to revive him. All of the foregoing shows
that MWD has done what is humanly possible under
the circumstances to restore life to Ong and for that
reason it is unfair to hold MWD liable for his death.
Bertalot v. Kinnare
Held that there could be no recovery for tdeath

by drowning of a 15 year old boy in the
defendants natatorium where it appeared
merely that he was lastly seen alive in water at
the shallow end of the pool and some ten or
fifteen
minutes
later
was
discovered
unconscious and perhaps lifeless at the bottom
of the pool, all efforts to resuscitate him being
without avail.
Although the proprietor of a natatorium is

laible for injuries to a patron resulting from
lack of ordinaty care in providing for his safety
without the fault of the patron he is not
however in any sense deemed to be the
insurer of the safety of patrons.
ONG VS Metropolitan Water District (1958)
Facts: Metropolitan Water District owns and operates
three recreational swimming pools in Quezon City. The
care and supervision of the pool and the users of such
is entrusted in one male nurse and six life guards who
had undergone life-saving course given by the
Philippine Redcross. For safety of its patrons the
facility also provides a roung buoy, toy roof, towing
line, saving kit and a resuscitator. It also provided
rules and regulation in the use of the pool including a
prohibition on swimming of the pool alone or without
any attendant. Although the facility does not have a
full time physician it has however a nurse and sanitary
inspector ready to administer injections or operate the
oxygen resuscitator if the need should arise.
Sometime in 1952 Dominador Ong a 14 year old
highschool student along with his brother went to the
facility to have a swim. Subsequently his brothers was
able to leave him alone in the swimming pool. While
one of the life guards was roaming around the facility
someone informed him that someone is swimming
under the water for quite a long time. The lifeguard
immediately jumped into the pool and apparently saw
and retrieved the lifeless body of Dominador. From
then on the life guard assisted by the sanitary
inspector and the nurse proceeded to perform life
saving procedures. Starting from manual artificial
respiration and then the injection of camphorated oil.
They also ordered someone to fetch a Physician. They
continued to revive DOminador using the oxygen tanks
to no avail. When the Physician arrived he brought
with him another resuscitator but still to no avail, they
failed to revive Dominador.
Issue: WON Metropolitan Water District is Liable
Held: NO
Ruling: The brothers of Ong is this case were vigilant
to prove in their version of the set of facts that when
they saw the lifeless body of their brother they called
the lifeguard but only upon the third try did the
lifeguard respond and place down the magazine that
he was reading. The court said that in such a
circumstance Metropolitan Water District (MWD) is
deemed liable but during trial the Brothers of Ong
failed to adduce evidence to prove their version of the
story. What was clear and convincing instead was that
the facility has taken all necessary precautions to avoid
danger to the lives of its patrons. From the six
lifeguards to a nurse to the various instrumentalities in
the facility used for life saving purposes. The record
also shows that when Ong was retrieved the
employees of MWD did everything possible to bring
9. Theatre
Even without a specific duty imposed under a
statute the owner or proprietor of a place of
public amusement impliedly warrants that the
premises, appliances and amusement devices
are safe for the purposes for which they are
designed and the doctrine being subject to no
other exception thant that he does not contract
against unknown defect not discoverable by
ordinary or reasonable means.
Part of the exercise of Due diligence includes
compliance with laws such as:
a. The National Building code
b. Revised Fire Code of the Philippines
2008
10. Inference of Negligence
Where a patron of a theatre or other place of

public amusement is injured, and the thing
that cause the injury is wholly and exclusively
under the control and management of the
defendant and the accident is such as in the
ordinary course of events would not have
happened if proper care had been exercised,
its occurrence raises a presumption or permits
of an inference of negligence on the part of the
defendant.
Gotesco Investment Corporation vs Chatto
Did not overcome the Inference of Negligence

where the victims where injured because the
balcony of the theatre collapsed.
11. Electric and Power Companies
a. Burning wires
Julian Del Rosario v Manila Electri Co.
Sometime in 1930 in Dimasalang Street was a

burning wire of which a part of the wire was
dangling and touching the ground. Manila
Electric Co. was informed of the burning wire
but
did
not
respond
immeadiately.
Subsequently a group of 9 year old came near
to the wire touching the ground, on of which
Alberto del Rosario who inspite the warning
from his friends that the wire might have a
current insisted on touching the wire. When he
touched the wire Alberto quickly fainted while
the end of the wire was still in contact with his
body. With the help of community residents
they were able to remove the wire that was in
contact with his body and he was rushed to
the hospital where he was eventually
pronounced dead.
The ruling: It is the opinion that the

presumption of negligence on the part of the
company from the breakage of this wire has
not been overcome and the defendant (Manila
Electric) is in our opinion responsible for the
accident. Furthermore when notice was
received by defendant somebody should hae
been dispatched to the scene of trouble at
once or other measures taken to guard the
point of danger; but more than an hour and a
half passed before anyone representing the
company appeared on the scene and in the
meantime this child had been claimed as a
victim.
b.
Sagging and Dangling lines

16

National Power Corporation v Heirs of Noble
Casionan
NPC installed high tension wires leading to

Benguet. Sometime later the wires began to
dangle and substantialy reduced its height
from the ground, around 8 10 feet. NPC
received a number of complains from the
community regarding the wires dangling so
close to the ground but still not repair was
made. Sometime in 1195 Noble Casionan, a
miner, was carrying a bamboo pole that
accidently caught up and touched the wired
and as a consequence electrocuted him which
lead to his death. The court held that NPC is
liable primarily because they were aware that
the wires were
an accident waiting to
happen but still no repaird was made. NPC
also violated the regulations that a wire has to
be 18 20 feet above ground. Moreover Noble
is not faulted for his actions in this case
because NPC did not place warning or danger
signs near the dangling wires to inform Noble
of such danger. NPC was clearly aware that a
number of people passed in this area. Noble
should not be faulted for simply doing what
was ordinary routine of other workers in the
area.
Dangerous Place of Installation and
Uninsulated Wires.
Agusan Del Norte Electric Company (ANECO) vs
Angelita Balen et. Al.
ANECO installed wires traversing certain home

of residences. These wires were unprotected
and uninsulated. There were complaints to
ANECO of the danger but to no avail. While
removing a telephone antenna certain persons
including Balen were electicuted, resulting to
one death and the other severely injured.
Court ruled that such wires were the proximate
cause of the injury and the fact that the
incident happened 11 years after the
installation of wires did not absolve ANECO
from liability.
Benguet Electric Cooperative (BENECO) v CA
BENECO left unaided a unprotected and

uninsulated wire between the splicing point of
service dropline and the service entrance of
conductor, which was only 8 feet high from the
ground. Subsequently Jose Bernardo, a
proprietor of a stall at Baguio City met an
accident involving such wires as the anthenna
of his jeepney got tangled with the wires he
was electrocuted. BENECO contends that it was
only after 7 years that the accident happened.
The court ruled that by leaving an open live
wire
unattended
for
years,
BENECO
demonstrated its utter disregard for the safety
of the public.
Manila Electric Co. V Remoquillo
No negligence was ascribed to the electric

company for string in uninsulated wires near
houses. The court observed that the wires
could not be properly insulated at that time.
(authors comment)The Decision should
be analysed that at the time of the
case (1950) the insulation of such
wires entailed highly prohibitive costs if
not impossible to undertake.
Notes in
b.
c.
12. Building Contractors

a. Contractors of buildings are contractually
bound to the owners of the building that they
are constructing. The contractor is liable for his
negligent performance of the contractual
obligation to construct the building. He is also
liable for the works of persons employed by

him.
Related Provisions
Art. 1723. The engineer or architect
who
drew
up
the
plans
and
specifications for a building is liable for
damages if within fifteen years from
the completion of the structure, the
same should collapse by reason of a
defect in those plans and specification,
or due to the defects in the ground.
The contractor is likewise responsible
for the damages if the edifice falls,
within the same period on account of
defects in the construction or the use
of
materials
of
inferior
quality
furnished by him, or due to any
violation of the terms of the contract.
If the engineer or architect supervises
the construction, he shall be solidarily
liable with the contractor.
Acceptance of the building after
completion does not imply waiver of
any of the cause of action by reason of
any defect mentioned in the preceding
paragraph
The action must be brought within ten
years frollwing the collapse of the
building.
Liability for Quasi Delict to the OWNER
a. Defect of building maybe
i. Defect in design
ii. Defect in construction
b. Article 2192 (NCC)
i. If damage refered to in articles 2190
and 2191 is the result of damage
referred to in art 1723
1.The third person suffering damages
may
proceed
only
against
the
ENGINEER
or
ARCHITECT
or
CONTRACTOR in accordance with the
said article and in accordance with the
provided timeline
Examples where Engineer or Architect
is liable where damage is caused by defect in
construction:
1. Damage from total or partial collapse
2. Damages by explosion of machinery
that has not been taken cared of with
due diligence and the inflammation of
explosive substance which have not
been kept in a safe and adequate
place.
3. Damages caused by the falling of trees
situated at or near highways or lanes if
not caused by force majeure.
4. Damages caused by excessive smoke
which may be harmful to person or
property
5. Damages caused by emanations from
tube, canals, sewers or deposits of
infectious matter, constructed without
precautions suitable to the place.
Juan Nakpil and Sons et al. v CA
Philippine Bar Association (PBA) decided to
construct a building office in Intramuros.
Nakpil and Sons were hired for the
specification and design. For construction PBA
hired United Construction. The building was
completed in 1966. Sometime in 1968 an
earthquake shook Manila and the building had
major damage causing the building to tilt
forward dangerously. As a temporary remedy
the building was shored up by United
Construction, amounting to 13K. Subsequently
there were earthquakes again in 1970 which

17

resulted to the complete collapse of the
building.
The Supreme Court ruled that the contractor

and architect were liable. Evidence would show
that there were defects in the design of the
building and there were also defects in the
construction as It was noted that United
Construction did not follow the proper
procedure in constructing the building.
The defects in the design and construction, as

noted by the court, were the Proximate cause
that rendered the PBA building unable to
withstand the Earthquake of 1968. It was ruled
that one who negligently creates a dangerous
condition cannot escape liability for the natural
and probable consequences thereof, although
the act of a third person, or an act of God for
which he is not responsible, intervenes to
precipitate the loss.
Furthermore, in this case NAKPIL contends that

it was the duty of the owner of the building to
take care of the building. SC rejected the
position of the contractor stating that the
contractor completely contradicted its own
view that the construction involves highly
technical matters and therefore beyond the
ambit
of
ordinary
understanding
and
experience. The ordinary practice is for the
owner to avail for the services of an engineer
and architect whose training and expertise
make them more qualified to provide effective
supervision of the construction. Hence the
charging the owner with fun time supervision
of the construction has no legal or contractual
basis.
c. Liability to Third Persons
i.
Art 1728
1. Contractor is liable for all the claims of laborers
and others employed by him and of third
persons for death or physical injuries during
the construction.
2. Contractor is also liable for the injuries that
occur after the construction of the building
caused by the negligent construction of the
building. Privity is not indispensable.
Ngo Sin Sing and Ticia Dy Ngo v Li Seng Giap &
Sons
o Petioner Ngo Sin wanted to construct a
building in their lot and hired the services of
Contech Construction. Adjacent to the lot of
Ngo Sing were the 5 storey building of Li Seng
Giap. There were complaints that due to the
construction of Contech the 5 story building
incurred damages in its walls and certain
structures. It was inspected and found out that
the excavation made by Contech was causing
the damage. As a measure of goodwill Ngo Sin
instructed Contech to repair the damage.
Contech agreed and subsequently declared
that
the
building
was
repaired.
But
unfortunately the problem became worse as
the 5 storey building incurred more damage,
until such time a private expert cam and
inspected the building and revealed that it
needs to be demolished for its major structural
damage.
o Contech in this Case was Liable as held by the
SC:
Clearly Contech failed to observe his

procedure in providing lateral and
subajacent support prior to excavation.
Under the doctrine of SUPERVENING
NEGLIGENCE which states that both
parties are negligent or when it is
impossible to determine whose fault or
negligence should be attributed to the
Notes in
incident, the on who had the last clear

opportunity to avoid the impending
harm and failed o do so is chargeable
with the consequences thereof. The
facts show that Contechs negligence
was the proximate cause of the
damage.
The petitioners as ordinary laymen
would
understandably
have
no
knowledge at all about the technical
aspect of constructing a building. This
was precisely the reason why they
contracted the services of a reputable
construction firm to undertake the
project.
Contractors of the building should have
taken the roles of the wise and prudent
father to their customers or clients as
they are specialists in themselves as
their field of know how in technology
would always be demanded and
extracted of them by all their patrons.
Chan Jr v Iglesia ni Cristo
Digging of a septic tank for a gasoline station

caused damage to the foundation of the chapel
adjacent to the property. The person engaged
by the owner of the Gasoline station in digging
the septic tank was held liable.
D.M. Consunji v Ca
Private respondents husband while working in

petitioners construction fell from the 14th floor
resulting to his death. The doctrine Res Ipsa
Loquitur was applied because no worker is
going to fall from the 14th floor of a building to
the basement whole performing work in a
construction site unless someone is negligent.
d. Effect of Approval of Plans By
Building Official
Gotesco Investment Corporation v Chatto
That the structural designs and olan of the

building were duly approved by the City
Engineer and the building permits and
certificate of occupancy were issued do not at
all prove that there were no defects in the
construction especially as regards the ceiling ,
considering that no testimony was offered to
prove that it was ever inspected at all.
13. TOWAGE
In Towage one vessel is hired to bring another
vessel like a barge to another place.
The party that provides the service in a
contract of towage is required to observe the
due diligence of a good father of the family.
Fault or negligence of the obligor consists in
his failure to exercise due care and prudence in
the performance of the obligation as the nature
of the obligation so demands.
14. STEVEDORING
The function involves the loading and
unloading of coastwise vessels at the port.
Stevedoring refers to the handling of the cargo
in the holds of the vessel or between the ships
tackle and the holds of the vessel.
The diligence required is the diligence that oof
a good father of a family.
It is not a common carrier. The loading and
towing of cargoes would not have a far
reaching public ramification as that of a
common carrier.
15. COMMON CARRIERS
From the nature of their business and for
reasons of public policy are bound to observe
extraordinary diligence in the vigilance over
the goods and for the safety of the passengers

18

transported by them according to all
circumstances of each case.
The law provides (Art 1735 NCC) that the
common caries shall be responsible for al the
loss, destruction or deterioration of the goods
unless the same is due to the ff
i.
Flood, storm or natural disasters alike
ii.
Act of Public enemy in war either international
or civil
iii.
Ac or omission of the shipper or the owner of
goods
iv.
The character of goods or defect in the packing
or in the containers
v.
Order or act of competent public authority.
a. Presumption
In cases where there is allegedly no liability
the presumption is that common carries have
been at fault or have acted negligently.
Burden of proof in proving a particular
exculpating circumstance is in the carrier.
b. Privity
Duty to exercise extraordinary diligence of
common carrier is owed to persons in
contractual relation i.e. passenger and shipper
of goods. Hence the case against a common
carrier is for an enforcement of an obligation
arising from a breach of contract. The case
cannot be defeated by proof of the exercise of
due diligence in the selection and supervision
of the employee.
Different
view
that
extraordinary
diligence is owed by common carries
event to third persons.
Kapalaran Bus Lines v Coronado
The law requires petitioner as common carrier

to exercise extraordinary diligence in carrying
and transporting theur passenger safely as far
as human care and foresight can prove using
the utmost diligence of very cautious persons
with due regard for all circumstances. While
the immediate beneficiaries of the standard
extraordinary diligence are of course the
passengers and the owners of the cargo, they
are not the only person that the law seeks to
benefit.
Carries
cannot
help
but
simultaneously benefit pedestrians and the
owners and passengers of other vehicles who
are equally entitled to the safe and convenient
use or our roads and highways.
a. Concurrence of Causes of Action
The same act which breached the contract

gives rise to an action based on quasi delict.
Quasi delict liability may be due to the
passenger himself or a third person who
maybe injured thereby. The presumption of
negligence does not apply if the action is based
on quasi-delict. However, the nature of the
business still requires the exercise of highest
degree of care.
16. TRAINS
Duty of care of train operators extends not
only to passengers but also to third persons.
Train operators must exercise due diligence
not only in performance of contractual
obligations but must also exercise due care in
the maintenance of their facilities and
equipment.
Ma-ao Sugar Central Co. Inc vs CA
The responsibility of maintaining rails for the

purpose of preventing derailment accidents
belonged to the company. The company should
have not been negligent in ascertaining that
the rails were fully connected than to wait until
a life was lost due to an accident.
Notes in
CHAPTER 6
DEFENSE IN NEGLIGENCE CASES
1. Plaintiffs Conduct
Victim of Negligence is likewise required to

exercise due care in avoiding injury to himself.
Ought to conform to what is provided in Art

2179
a. When a Plaintiffs own negligence was
the immediate and proximate cause of
his injury, he cannot recover damages.
But if his negligence was only
contributory,
the
immediate
and
proximate cause of the injury being the
defendants lack of due care, the
plaintiff may recover damages but the
court shall mitigate the damages
awarded.
2. Plaintiffs
Own
Negligence
as
the
Proximate cause
In one case the accused operator of a

locomotive was acquitted because it was
established that the victims negligence was
the proximate case of his death. The deceased
carelessly crossed the path of the locomotive
when it was only three meters away. The court
said that no matter what speed the vehicle has
been, the accident would have occurred
because of the negligence of the deceased.
Raynera v Hiceta
The
vehicle
of
petitioners
husband
(motorcycle) bumped and crashed into the left
rear portion of a truck trailer. The Court ruled
that the victim had the responsibility of
avoiding bumping the vehicle in front of him.
The deceased was in control of the situation
and the motorcycle was equipped with
headlights to enable the deceased to see what
was in front. If the deceased had exercise due
care and prudence that is demanded of him in
riding a motorcycle then no death might have
occurred.
Cang v Cullen
A motorcycle bumped another vehicle. The
motorcycle only had a student drivers license.
The driver was also not wearing any protective
headgear and was speeding. Hence the plaintiff
was not able to recover because the negligence
of the motorcycles driver is the proximate
cause of the drivers death.
Kim v Philippine Aerial Taxi Company
The plaintiff was disembarking from a plane
that landed in the waters of Guemaras. The
pilot saw that the coming Banca to pick up the
plaintiff was increasingly getting near the plain.
For fear that the Banca might hit the plane the
pilot signalled on the Banca operator to move
far back. Not knowing though that at the same
time when the pilot was signalling the Banca
operator the Plaintiff removed his seatbelt and
proceeded outside the plane towards the
banca. When he went down he was hit by the
still revolving propeller of the Banca causing
major injury to his arms that were eventually
amputated. However the Court ruled that the
plaintiff acted with reckless negligence in
approaching the propeller while it was still in
motion, and when the banca was not yet in a
position to take him. The Plaintiffs negligence
alone was the direct cause of the accident and
he alone should suffer the consequences of his
act.

19

3. CONTRIBUTORY NEGLIGENCE
Articled 2179 (NCC) is clear that if the plaintiffs

negligence is merely contributory, the plaintiff
is not barred from recovering from the
defendant.
This rule is related to Art. 2214 which states

in quasi-delicts the contributory negligence of
the plaintiff shall reduce the damages that he
may recover
4. Comparative Negligence Rule
Includes any rule under which the relative

degree of negligence of the parties is
considered determining whether, and to what
degree either should be responsible for his
negligence.
a. Pure type of Comparative Negligence
i. Does not operate to bar his
recovery all together but does
serve to reduce his damage in
proportion to his fault.
b. At the time the Civil Code was enacted
the prevailing rule was doctrine of
Contributory
Negligence
(US
jurisprudence). As of 1991 though, the
rule has been Doctrine of Comparative
Negligence
c. Contributory
Negligence
vs
Comparative Negligence
i. Contributory
Negligence:
Common law: negligence of the
defendant which contributes to
his injuries, completely bars
recovery.
ii. Comparative Negligence: does
not
completely
bar
but
mitigates the same.
5. Contributory
Negligence
Mitigates
Liability.
In this jurisdiction consistent with the rule on

comparative
negligence,
contributory
negligence of the plaintiff mere results in
mitigation of liability. Under this rule,
contributory negligence is a conduct on the
part of the injured party, contributing as a
legal cause to the harm he has suffered, which
falls below the standard to which he is required
to conform for his own protection.
Rakes v Atlantic Gulf and Pacific Co
Test to determine the act that is immediate to
cause injury. Distinction must be made
a. Between the accident and the injury
between the event itself, without which
there could have been no accident
b. And those acts of the victim not
entering into, independent of it, but
contributing to his own proper hurt.
(pls see page 274)
6. Extent of Mitigation
The court is free to determine the extent of the

mitigation
of
the
defendants
liability
depending on the circumstances. Ex. 50% or
20%
7.
Test of Negligence
a. Whether the act or omission in question of
the
defendant
or
the
contributory
negligence of the plaintiff.
b. The Test is still FORSEABILITY.
c. There is contributory negligence when the
partys act showed lack of ordinary care
and foresight that such act could cause him
harm or put his life in danger.
Notes in
d. Ex. No Contributory negligence if the

victim was standing in the shoulder of the
highway and was hit by a car. The victim
could not have foreseen that the car
without slowing down took off from the
cemented part of the highway. Running
vehicles are not supposed to pass the
shoulder.
8. IMPUTED CONTRIBUTARY NEGLIGENCE
Negligence is imputed if the actor is different

from the person who is being made liable. The
defendant will be subject to mitigated liability
even if the plaintiff was not himself personally
negligent but because the negligence of
another is IMPUTED to the plaintiff.
This rule is applicable where the negligence

was on the part of the person for whom the
plaintiff is responsible and especially by
negligence of an associate in the transaction
where he was injured.
Phil. Commercial Int. Bank, et al vs CA
Jurisprudence
regarding
the
imputed
negligence of employer in a master-servant
relationship is instructive. Since a master may
be held for his servants wrongful act, the law
imputes to the master the act of the servant
and if that act is negligent or wrongful and
proximately results in injury to a third person,
the negligence or wrongful conduct is the
negligence or wrongful conduct of the master,
for which he is liable.
Yamada v. The Manila Railroad Co.
a. Negligence of the driver of a taxicab
cannot be imputed to a passenger who
hired the vehicle and who gave
directions to his destination.
b. The taxi was struck by a train in this
case. Defendant Railroad company
argued that plaintiffs cannot recover
for the reason of negligence of the
driver of taxicab, if any, it was
imputable to them (passengers)
c. SC: Rejected the contention:
i. A person who hires a public
automobile and gives the
driver directions to the place
which
he
wishes
to
be
conveyed but exercises no
other control over the conduct
of the driver is no responsible
for the acts of negligence of
the latter or prevented from
recovered for injuries suffered
from a collision of such an
automobile with a train caused
by negligence of the driver of
the automobile or operator of
the train.
9. Imputed
Negligence
to
Plaintiff
as
Proximate Cause
Other Cases: imputed negligence not only is

merely contributory but may be the proximate
cause of the loss.
Ramos v C O L Realty Corporation
a. If the master is injured by the
negligence of a third person and by the
concurring negligence of his own
servant
or
agent,
the
latters
negligence is imputed to his superior
and will defeat the superiors claim
against the third person if the
negligence is the proximate cause.
10. VIOLATION OF STATUTE BY THE VICTIM
OR HIS AGENT

20
Violation of statutes or rule is treated generally

as negligence PER SE
a. Except when the law or rules
specifically provide for a different rule.
The effect would depend whether the same

a. Is merely contributory negligence
b. The proximate cause of the loss
c. Neither contributory nor proximate
cause
Ramos v COL Realty Corp.
Vehicular accident between a car own by
corporation and a van in a street in Quezon
City. Respondent filed an action but in due
case it was dismissed for lack of merit.
SC concluded that the act of the driver of the
Car was negligence (his route was prohibited
by the MMDA) because the act was prohibited
by law. If the car followed the law no accident
occurred, hence no recovery can be made to
the car of the Corporation
Contributory Negligence: Mendoza v Soriano
Soriano died after being hit by a SPEEDING
Tamaraw FX. SC concluded that the negligence
of driver of the FX who failed to maintain a
lawful speed was the proximate cause of the
death of victim. However the liabilities were
mitigated because Soriano was not using the
pedestrian overpass. A deduction of 20% of
the damages was proper in this case.
11. Neither
Contributory
Negligence
nor
Proximate Cause.
Anonuevo v CA
Violation of a statute is not sufficient to hold
that the violation was the proximate cause of
the injury, unless the very injury that
happened was precisely what was to be
prevented by the statute. There must be proof
of causation.
Case: Bike was hit by a vehicle. The Owner
violated traffic regulation because he failed to
register his bike and install safety gadgets.
SC
a. To determine if the Plaintiff was
negligent it is not sufficient to rely
solely on the violations of the
municipal ordinance but imperative to
examine his behaviour in relation to
the accident
b. Ex. If a bike has no safety gadgets
then the owner is negligent if the bike
was driving during night-time because
car owners could not see the bike but if
it was daylight then it is of no effect
because motorists can see the bike in
plain view even if the safety light was
on it would still be as of no use in
daytime.
c. The above doctrine means that the
failure of bicycle owner to comply with
accepted safety practices whether or
not imposed by ordinance or statute is
not SUFFICIENT to negate or mitigate
recovery unless a cause connection is
established between such failure and
the injury sustained.
National Power Corporation v heirs of Noble
Casionan
Dangling wires case: victim was
electrocuted.
SC: The fact that the victim was an
unlicensed pocket miner was not a
justification to leave their transmission
line dangling. The victim was not guilty
of contributory negligence
Notes in
12. ASSUMPTION OF RISK

a. Doctrine of Assumption of Risk
Involves 3 elements/requirements
i. The plaintiff must know that
the risk is present
ii. He must further understand its
nature and
iii. His choice to incur it is free and
voluntary
In the last requisite it has been
held that the plaintiff is
excused from the effect of the
rule if an emergency is found
to exist or if the life or property
of another is in peril or when
he
seeks
to
rescue
his
endangered property
Ilocos Norte Electric Company
Deceased was electrocuted when she ventured
outside her house during a flood. Defendant
Company was found to have failed to prevent
the fallen line causing the damage. As a
supplier of electricity it was found to have
failed to be in constant vigil to prevent or avoid
any probable incident that might imperil life or
limb. No assumption of risk to the deceased
because an emergency was at hand as
deceased property as a source of her livelihood
was face with an impending loss.
13. KINDS
a. Express waiver of the Right to
Recover
i.
EXPRESS CONSENT PERSPECTIVE
contemplate the most basic sense
of the doctrine
ii.
There is assumption of risk if the
plaintiff in advance has expressly
waived his right to recover
damages for the negligent act of
the defendant.
iii.
Ex. Plaintiff received a warning that
it was still dangerous to take the
vehicle out of the repair shop but
still he would, there is an express
assumption
of
risk
if
he
nevertheless took the vehicle from
the shop with the express waiver of
liability in favour of the proprietor.
iv.
HOWEVER
in
:
Pleasantville
Development Corporation vs CA
SC: A person cannot contract his right

to recover damages resulting from
negligence. Even if such waiver was
made if the same is contrary to public
policy the same cannot be allowed.
1. Case: buyer of a subdivision lot who
erroneously built on anothers lot
because he was told to do so by
petitioner corporation. One of the
defences
invoked
by
Petitioner
Corporation was that there was waiver
of the contract of Sale of the right to
recover damages based on negligence.
2. The waiver in this case was invalid
because it was made before the right
to recover damages on the negligent
act was committed. If the waiver was
AFTER the cause of action accrued then
the waiver is valid.
3. It is also waiver of right to recover
damages that will arise through future
fraud is void under Article 1171.
14. IMPLIED ASSUMPTION

21
Dangerous Conditions
a. A person knowing that he is exposed to
a dangerous condition voluntarily
assumes the risk of such dangerous
condition may not recover from the
defendant
who
maintained
such
dangerous conditions.
i. Ex.
Spectators
at
sports
events/amusement parks who
find dangerous conditions when
they
enter
the
business
premises are deemed to have
assumed the risk as long as
proper warning was made.
Contractual Relations
a. There may be implied assumption of
risk if the plaintiff entered into a
relation with the defendant.
i. By entering into a relationship
free and voluntarily where
negligence of the defendant is
obvious the plaintiff may be
found to accept and consent to
it and to undertake to look out
for himself and relieve the
defendant of the duty.
1. ASSUMPTION of risk is
a
defense
of
an
employer in a tort case
filed by his employee.
Applied to cases where
there
is
employeremployee relationship
between the parties
Cerezo v Atlantic Gulf and Pacific Co.
The Doctrine is based on the implied
consent of the servant to accept or
continue in the employment after
becoming aware of the risk which
resulted in his injury.
Rakes v Atlantic Gulf and Pacific Company
Employee cannot be said to have
assumed a risk which is not incident to
his employment
The risk is not incident to the
employment of the plaintiff if the
occurrence was due to the failure of
the employer to repair a portion of the
workplace.
Ex. Worker of Railroad Company was injured
because the track sagged, the company cannot
claim that the employee assumed the risk because
the injury resulted by reason of the companys
failure to repair the tract or to duly inspect it.
Afialdia v Hisole
Case of assumption of risk
A plaintiff was hired by defendant to
take care of a number of carabaos at a
fixed compensation. While tending he
was killed by the carabaos. He was
gored by one of them.
There was assumption of risk in the
case because it was the caretakers
business to try to prevent animals from
causing injury to anyone including
himself. And being injured by one of
the animas was one of the risks of the
occupation which he had voluntarily
assumed and for which he must take
the consequences.
b. DANGEROUS ACTIVITIES
i. Persons
who
voluntarily
participate
in
dangerous
activities assume the risks
which are usually present in
such activities. The rule may
Notes in
apply to professional athletes

who are deemed to assume the
risks of injury incident to their
trade.
1. Ex. A basketball player
is deemed to have
assumed the risk of
suffering from injuries
incident to such contact
sport.
c. DEFENDANTs NEGLIGENCE
i. There is implied admission
when the plaintiff is aware of
the risk created by the
defendants negligence yet he
voluntarily decided to proceed
to encounter it.
ii. If the plaintiff has been
supplied with a product which
he knows is unsafe he is
deemed to have assumed the
risk of using such unsafe
product.
15. FORTUITOUS EVENT
a. CONCEPT OF FORTITOUS EVENT
i. Art. 1174 NCC a person is not
liable if the cause or damage
was fortuitous; an event which
could not be foreseen or which
though
foreseen
was
inevitable.
ii. Unexpected event or act of God
which
could
neither
be
foreseen nor resisted such as
floods, shipwrecks, lightning,
compulsion
and
other
occurrences of similar nature.
b. ELEMENTS
i. The cause of the unforeseen
and unexpected occurrence or
failure of debtor to comply of
his
obligation
must
be
independent of human will
ii. It must be impossible to
foresee the event or if it can be
foreseen it must be impossible
to avoid
iii. The occurrence must be such
as to render it impossible for
the
debtor
to
fulfill
his
obligation in a normal manner
iv. The obligor must be free from
any
participation
in
the
aggravation
of
the
injury
resulting to the creditor.
16. CONCEPTS
a. The Negligence of the defendant which
concurred with the fortuitous event or
which resulted in the aggravation of
the injury of the plaintiff will make him
liable even if there was a fortuitous
event.
b. When an act of God combines with the
negligence of the defendant to produce
an injury, the defendant is liable if the
injury would not have resulted for his
own negligent conduct or omission.
The whole occurrence is humanized
and remove from the rules applicable
to acts of God
i. Nevertheless, it is believed that
if defendant is liable, court may
equitably mitigate the damage
of the loss in acts of negligence
during a fortuitous event.
17. EFFECT OF DEATH OF DEFENDANT

22

a. Death not Defense
will not extinguish the obligation based
on quasi-delict
b. Rules of Court Provisions
whenever a party to a pending action
dies, and the claim is not thereby
extinguished, it shall be the duty of his
counsel to inform the court within
thirty (30) days after such death of the
fact thereof, and to give the name and
address of his legal representative or
representatives (Sec 16, Rule 3)
18. PRESCRIPTION
a. When Period Commences
4 years
Counted when the last element of
commission of an act or omission
violative of the right of the plaintiff,
which is the time when the cause of
action arises
b. Doctrine of Relations or Relations
Back Doctrine
Principle of law by which an act done at
one time is considered by fiction of law
to have been done at some antecedent
period
When invoked, must have connection
with actual fact, must be based on
some antecedent lawful rights
Doctrine should be applied where the
injury was discovered long after the
accident
c. Effect or Prescription on Other
Sources of Obligations
Does not operate as a bar to an action
to enforce the civil liability arising from
crime
19. INVOLUNTARINESS
a. Other Sources of Obligation
NCC: force and intimidation vitiated
consent
RPC:
force
and
intimidation
subsidiary liability
b. Complete Defense
Involuntariness is a complete defense
in quasi-delict cases and the defendant
is therefore not liable if force was
exerted on him
CHAPTER 7
CAUSATION
1.Proximate Cause
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.
not necessarily the last link in the chain of
events but that which is the procuring efficient
and predominant cause.
not necessarily the sole cause of the accident.
Vda. De Bataclan vs. Medina
102 Phil. 181
Facts: Plaintiffs predecessor in interest Juan
Bataclan was a passenger in a truck owned by
the defendant. While the bus was running in
Imus, Cavite, one of the front tires burst and
the truck began to zig-zag until it fell into a
canal on the right side of the road and turned
turtle. Most of the passengers were able to get
out of the truck but Juan Bataclan who was
Notes in
seated beside the driver and three other

passengers could not get out of the truck. Calls
or shouts for help were made and after about
half an hour ten men came. One of them was
carrying a lighted torch made of bamboo with
a wick on one end, evidently fueled with
petroleum.
The
men
approached
the
overturned bus, and almost immediately a
fierce fire started and burned the bus including
the four passengers trapped inside it. This
action was instituted by the heirs of Bataclan
against the owner of the truck to recover
damages for his death. The lower court found
that the overturning of the truck was due to
the negligence of the driver who was driving
very fast at the time of the blow out of the tire.
However, the lower court held that the
proximate cause of the death of Bataclan was
not the overturning of the bus, but rather, the
fire that burned the bus. The lower court
awarded damages only for Bataclans injuries
but not for his death. Both parties appealed.
Held: There is no question that under the
circumstances, the defendant carrier is liable.
The only question is to what degree. The trial
court was of the opinion that the proximate
cause of the death of Bataclan was not the
overturning of the bus, but rather, the fire that
burned the bus, including himself and his copassengers who were unable to leave it; that
at the time the fire started, Bataclan, though
he must have suffered physical injuries,
perhaps serious, was still alive, and so
damages were awarded, not for his death, but
for the physical injuries suffered by him. We
disagree. The proximate cause of the death of
Bataclan was the overturning of the bus, this
for the reason that when the vehicle turned not
only on its side but completely on its back, the
leaking of the gasoline from the tank was not
unnatural or unexpected; that the coming of
the men with a lighted torch was in response
to the call for help, made not only by the
passengers, but most probably, by the driver
and the conductor themselves, the coming of
the men with the torch was to be expected and
was a natural sequence of the overturning of
the bus, the trapping of some of its passengers
and the call for outside help. What is more the
burning of the bus can also in part be
attributed to the negligence of the carrier,
through its driver and its conductor. They, or
at least, the driver should and must have
known that in the position in which the
overturned bus, was gasoline could and must
have leaked from the gasoline tank and soaked
the area in and around the bus, this aside from
the fact that gasoline when spilled, specially
over a large area, can be smelt and detected
even from a distance, and yet neither the
driver nor the conductor would appear to have
cautioned or taken steps to warn the rescuers
not to bring the lighted torch too near the bus.
2. Remote cause
cause which some independent force merely
took advantage
of to accomplish something
not the natural effect thereof.
Gabeto vs. Araneta 42 Phil. 252
Facts: Basilio Ilano and Proceso Gayetano took a
carromata. When the driver had started the horse, the
defendant stepped into the street, stopped the horse,
at the same time protesting to the driver that he
himself had called this carromata first. The driver
replied that he had not heard the call of the defendant.
The driver pulled on the reins of the bridle to free the

23

horse from the control of the defendant in order that
the vehicle might pass on. Owing, however, to the
looseness of the bridle on the horses head or to the
rottenness of the material, the bit came out of the
horse mouth and the driver went down to fix the
bridle. After it was fixed and upon going a few yards
further the side of the carromata struck a police
telephone box which was fixed to a post of the
sidewalk, upon which the box came down with a crash
and frightened the horse to such an extent that he set
out at full speed up the street. One of the passengers,
Ilano, had alighted while the carromata was as yet
alongside the sidewalk but the other, Gayetano,
remained in his seat and after the runaway horse had
proceeded up the street, Gayetano jumped or fell from
the carromata and received injuries from which he
died. This action was filed by his widow to recover
damages from the defendant.
Held: xxx We are of the opinion that the mere fact
that the defendant interfered with the carromata by
stopping the horse in a manner stated would not make
him liable for the death of Proceso Gayetano; because
it is admitted by Julio Pagnaya (the driver) that he
afterwards got out of the carromata and went to the
horses head to fix the bridle. The evidence is
furthermore convincing to the effect that, after Julio
Pagnaya alighted, the horse was conducted to the curb
and that an appreciable interval of time elapsed
same witnesses say several minutes before the horse
started on his career up the street. It is therefore
evident that the stopping of the rig by Agaton Araneta
in the middle of the street was too remote from the
accident that presently ensued to be considered the
legal or proximate case hereof. Moreover, by getting
out and taking his post at the head of the horse, the
driver was the person primarily responsible for the
control of the animal, and the defendant cannot be
charged with liability for the accident resulting from
the action of the horse thereafter
3. Concurrent cause
intervening cause which merely cooperated
with the primary cause and which did not
break the chain of causation.
Subido vs. Custodio 17 SCRA 1088
Facts: Agapito Custodio was a passenger of an LTB
bus. He was hanging on the left side of the bus
because it was full of passengers. A truck owned by
Subido which was coming from the opposite direction
sideswiped the LTB bus and injured Custodio who died
as a result thereof. Both drivers were found negligent
the LTB bus driver for having allowed a passenger to
ride on the running board of the bus and the driver of
the truck for running at a considerable speed while
negotiating a sharp curb and running on the middle
instead of on the right side of the road. The owner and
the driver of the truck contended that the proximate
cause of the death of Custodio was the negligence of
the driver of the LTB bus who allowed Custodio to ride
on the running board of the LTB bus.
Held: Although the negligence of the carrier (LTB
bus) and its driver is independent, in its execution of
the negligence of the truck driver and its owner both
acts of negligence are the proximate causes of the
death of Agapito Custodio. In fact the negligence of the
first two (2) would not have produced this result
without the negligence of petitioners herein (the owner
and driver of the truck). What is more, petitioners
negligence was the last, in point of time, for Custodio
was on the running board of the carriers bus
sometime before petitioners truck came from the
opposite direction, so that, in this sense petitioners
truck had the last clear chance. The owner and the
driver of the truck were held jointly and severally
liable, together with the LTB bus and its driver, to the
heirs of Custodio
Notes in
TESTS OF PROXIMATE CAUSE

1. Cause-in-fact test
- It is necessary that there be proof that
defendants conduct is a factor in causing
plaintiffs damage.
a. but for test or Sine qua non
test
defendants conduct is the
cause in fact of the injury
under this test if the
damage would not have
resulted had there been
negligence on the part of
the defendant.
b. Substantial factor test
the cause set in motion by
the
defendant
must
continue until the moment
of the damage or at least
down the setting in motion
of the final active injurious
force which immediately
produced or preceded the
damage.
c. NESS test or Necessary and
Sufficient Test
the act or omission is the
cause in fact if it is a
necessary element of a
sufficient set. Developed to
solve problems regarding
concurrent causes.
Query: What is then the applicable test in the
Philippine jurisdiction?
Answer: but for test or Sine qua non test.
2. Policy tests of negligence
-if the damage or injury to the plaintiff is
beyond the limit of the liability fixed bylaw, the
defendant's conduct cannot be considered the
proximate cause of the damage
a. foresight perspective
the defendant is not liable for
the
unforeseeable
consequences of his act.
Note: This rule is under the 1889 Civil Code, Thus the
definition which includes the element of foresight is not
consistent with the NCC.
4. Causes and Condition
Query: Distinguish Cause and Condition
Answer: cause is the active force while condition is
the passive situation. The former is the active cause
of the harm and the latter is the existing conditions
upon which the cause operated
Note: it is no longer the distinction between cause and
condition which is important but the nature of the risk
and the character of the intervening cause (Phoenix
Construction VS, IAC)
Types of Dangerous Condition
a. inherently dangerous
they retain their potential energy in
full, even if they are stored or handled
with utmost care.
b. in a dangerous position
includes cases where the object is
placed in an unstable position where
the application of small force will
permit the release of some greater
force.
c. defective products
the thing itself is not supposed to be
dangerous but it was negligently or

24

erroneously produced or constructed
.i.e. defective buildings.
5. Efficient Intervening Cause
- an efficient intervening cause is one that
destroys the causal connection between the
negligent act and injury and thereby negatives
liability; it is sometimes called novus actus
interviens.
- such intervening cause must be:
new
independent or one not under

the control of the official
wrongdoer
one which by the exercise of

reasonable
foresight
and
diligence, he should have
anticipated
and
guarded
against it
it must break the continuity of

causal connection between the
original
negligent
act
or
omission and the injury so that
the former cannot be said to
have been the efficient cause
of the latter.
Query: When is there no efficient intervening cause?
Answer: there is no efficient intervening cause if the
force created by the negligent act or omission have
either:
remained active itself

created another force which remained active
until it directly caused the result
created a new active risk of being acted upon
by the active force that caused the result.
if it is already in operation at the time the
negligent act is committed.
Rodrigueza Vs Manila Electric Railroad.
Facts: The house of the plaintiff was razed by fire
because of the sparks emitted by one of the trains of
defendant, and company alleged that it was the wind
that is the intervening cause of the fire.
Held: The wind was not an intervening cause because
it was already in operation at the time the negligent
act of the defendant was performed. Even if the wind
was not yet operating the same cannot be considered
an efficient intervening cause because the wind did not
break the chain of causation between the negligence of
the defendant and the resulting damage.
6. Contributory Negligence
Conduct on the part of the injured party,
contributing as a legal cause to the harm he
has suffered, which falls below the standard to
which he is required to conform for his own
protection.
Note: This does not negate liability it only mitigates
liability
7. Last Clear Chance Doctrine
The contributory negligence of the party
injured will not defeat the claim for damages if
it is shown that the defendant could, by
exercise of reasonable care and prudence,
have avoided the consequences of the
negligence of the injured party.
Elements of last clear chance doctrine:
1. Both
plaintiff
and
defendant
were
negligent(this is an exception to concurrent
negligence rule)
2. Plaintiff was in a position of danger by his own
negligence
3. Defendant knew of such position
4. Defendant had the last clear chance to avoid
the accident but failed to do so
Notes in
5. Accident occurred as proximate cause of such

failure.
Query: What are the instances when the doctrine of
last clear chance is INAPPLICABLE?
Answer:
a. The party charged is required to
act instantaneously, and the injury
cannot be avoided by application of
all means at hand after the peril is
or should have been discovered
(Pantranco North Expressway VS.
Baesa)
b. If the defendants negligence is a
concurrent cause and which was
still in operation up to the time of
the injury was inflicted.
c. where the plaintiff, a passenger ,
filed an action against a carrier
based on contract (Bustamante VS.
CA)
d. If the actor, though negligent, was
not aware of the danger or risk
brought about by the prior fraud or
negligent act
e. in case of a collapse building or
structure (De Roy Vs. CA)
Kinds of views regarding Doctrine of Last Clear
Chance
1. prevailing view- the law is that the
person who has the last fair chance
to avoid the impending harm and
fails to do so is chargeable with the
consequences, without reference to
the prior negligence of the other
party.
2. minority view-The last clear chance
doctrine is inapplicable in Philippine
jurisdiction in determining the
proximate cause of the accident.
3. third
viewThe
doctrine
of
comparative negligence and last
clear chance are not inconsistent
with each other.
CHAPTER 8
HUMAN RELATIONS: INTENTIONAL TORTS
I.
GENERAL CONCEPTS
1. Concept of Intent in Torts

Intent the actor desires to cause the
consequences of his act or believes the
consequences are substantially certain to
result from it
Elements of Intent:
i.
It is a state of mind;
ii.
About consequences of an act/omission
and not about the act itself
iii.
It extends not only to having in the
mind a purpose/desire to bring about
given consequences but also to having
in mind a belief/knowledge that given
consequences are substantially certain
to result from the act
Intentional tort includes cases when

the performance of an act under
normal circumstances may be lawful
but was deliberately adopted for a
wrongful end.
a. Distinguished from Negligence

25
is a matter of degree
negligence involves foreseeability
of the risk and knowledge which is
short of substantial certainty
b. Manifestations of Intent
Appears by way of malice, bad

faith or fraud
Malice - connotes ill will or spite and

speaks not in response to duty
Bad faith involves a dishonest

purpose or some moral obloquy and
conscious doing of a wrong, breach of
known duty due to some motives or
interest or ill will that partakes of the
nature of fraud
Fraud all kinds of deception that

would lead an ordinary prudent person
into
error
after
taking
the
circumstances into account
c. Specific Concept of Fraud
E.g. tort of malicious prosecution

element of inexcusable intent to
injure, oppress, vex, annoy or
humiliate
2. Reason for Chapter on Human Relations
According to the Report of the

Code Commission:
i.
To be observed for the rightful
relationship between human beings
and;
ii.
for the stability of social order
3. Catch all provisions (Art. 19-21 of the
NCC)
3.01. Concepts
- under these provisions, an act which causes
injury to another may be made the basis for an
award of damages
Art. 20 pervades the entire legal

system
Art. 19 mere declaration of

principles; abuse of right
Art.19 & 20 common element:

intentional act
Art. 21 damages are recoverable

even though no positive law is
violated
a.
No Wrong Without a Remedy
xxx the foregoing rule xxx would

vouchsafe adequate, legal remedy
for that untold number of moral
wrongs which it is impossible for
human foresight to provide for
specifically in the statutes.
b.
Damage essential element of cause
of action
c.
Good faith not necessarily an
excuse
SC has ruled that a defendant may

be guilty of tort under Art 19 and
21 even though the tortfeasor did
not act with ill-will, in which case,
liability to pay exemplary damages
may
not
be
imposed
when
defendant acted in good faith
II.
1.
ABUSE OF RIGHT
Elements of Cause of Action
i.
There is legal right or duty
ii.
The legal right or duty is
exercised in bad faith
iii.
The exercise is for the sole
intent of prejudicing or injuring
another (Albenson vs. CA)
Notes in
2.
Concept of Abuse of Right
Enshrined in Art. 19
Sets standards in the exercise of

ones rights and duties
To act with justice
To give everyone his due
To observe honesty and

good faith
3.
Examples of Cases when there is

Abuse of Right
Abuse of Rights of Creditors
Taking advantage of his knowledge

that insolvency proceeding were to
be instituted by the debtor if the
creditor will not come to an
agreement as to the distribution of
the insolvent debtors assets
creditor transferred credit to a
sister company in US, US company
obtains a writ of attachment
thereby depriving the assignee to
recover the attached plane (Globe
McKay vs. CA)
Unreasonable
disapproval
of
mortgage of sugar quota
mortgagor would not be able to
utilize
the
sugar
quota
as
agricultural year is about to expire
(PNB vs. CA, 83 SCRA 237)
Abuse of Right of Principal
Unreasonable
termination
of
agency agreement for selfish
reasons (Valenzuela et.al. vs. CA)
Abuse of Right of Agents
Violation of trust reposed on the

officers and negotiators in behalf of
tenants (Arlequi vs. CA)
Abuse of Right of Public Officers
Non-issuance
of
clearance
to
plaintiff but issuance to all other
employees who were similarly
situated (Llorente vs. CA)
A partys refusal to abide by a

court order enjoining him from
doing an act, otherwise lawful,
constitutes an abuse and unlawful
exercise of right (Villanueva vs.
Rosqueta)
Abuse of Court Processes
Writ of demolition issued by the

lower court, but a TRO was issued
by the CA against it. The
demolition being pursued by the
petitioners constitutes an abuse of
right. The fact that the writ was
not subsequently annulled is of no
moment.
(Amonoy
vs.
Sps.
Gutierrez)
Abuse of Right by Contracting
Party
Abuse of Right of Schools
[Schools] should [practice] what it

inculcates in its students, more
specifically the principle of good
dealings enshrined in Art. 19 and
20 of the Civil Code. (UE vs. Jader)
a.
b.
c.
d.
e.
f.
g.
4. Examples of Cases when there is No

Abuse of Right
a. Absolute Rights
Refusal to enter into a contract, by

itself, cannot be a ground for the
filing of an action for damages.

26

b. Rights of the Corporation and its
Officers and Directors
The Code of By-Laws of the Society

contains
a
specific
provision
governing the term of office of
petitioner. The same necessarily
limits her rights under the New
Civil
Code
and
the
New
Constitution upon acceptance of
the appointment. (Mita Pardo de
Tavera vs. Philippine Tuberculosis
Society, et. al.)
The sending of demand letters by

the non-stock corporation to its
member for the payment of unpaid
charges cannot be considered
abuse of right if the tenors of the
letters do not deviate from the
standard practice of pursuing the
satisfaction of the obligation of the
member. (Manzanal vs. Illusorio)
c. Exercise of Rights Included in
Ownership
In the absence of an easement of

right of way, the owner is free to
enclose his property even if
damage to another will result.
(Custodio vs. CA)
d. Rights of Schools, Teachers and
Administration
The
Department
Head,
the
Assistant Division Superintendent
and the Principal of a high school
were not guilty of abuse of right
when a teacher was placed in the
list of excess teacher when the
action was not motivated by undue
motives. (Andrade vs. CA)
Abuse of right is absent if a school

does not confer upon a student a
degree
with
honours.
Xxx
However, if there was already an
order from a superior officer to
allow the plaintiff to graduate with
honours, the officer who failed to
implement the order is liable for
damages not on account of abuse
of right but neglect of duty.
(Ledesma vs. CA)
[The] school principal and Fr.

Wiertz disagreed with Boards
decision to retain her, and some
teachers allegedly threated to
resign en masse, even if true, did
not make them liable to her for
damages.
They
were
simply
exercising their right to free speech
or their right to dissent from the
Boards decision. (Garciano, et. al,
vs. CA)
e. Right to Sue
Without the right to litigate,

conflicting
claims
cannot
be
examined
and
resolved
in
accordance with one of the primary
purposes of the government, which
is to provide for a just and orderly
society. Hence, the mere act of
submitting a case to the authorities
for prosecution does not render a
person
liable
for
malicious
prosecution should he or she is
unsuccessful xxx. (Diaz vs. Davao
Light and Power Company Inc.)
f. Contracting Parties
Notes in
[There is] no abuse of right when

the mortgagee foreclosed the
mortgage over the property of the
debtors. Under the mortgage
contract, the creditor, the creditor
has the right to file an application
for extrajudicial mortgage xxx.
(DBP vs. CA)
CASE: Nikko Hotel vs. Reyes
Facts: In the Nikko Hotel, a luxurious and intimate
birthday celebration was held for its former general
manager, Mr. Tsurouka. Ms. Ruby Lim. Hotels
Executive Secretary was the organizer of the event.
Upon instructions, the guest list was limited to
approximately 60 of Mr. Tsurokas closest friend.
Roberto Reyes, a.k.a. Amay Bisaya attended the party
who was not included in the invited guests. He was
then asked by Ms. Lim to leave the hall.
Issue: Whether Ruby Lim acted abusively in asking
Roberto Reyes a.k.a Amay Bisaya to leave the party
where he was not invited by the birthday celebrant
thereby liable under Art. 19 and 21 of the NCC.
Parenthetically, whether Nikko Hotel, employer, is
solidarily liable with her.
Ruling: No. Evidence shows that Ms. Lim did not abuse
her right in asking Mr. Reyes to leave the party to
which he was not invited. Necessarily, neither can her
employer, Hotel Nikko, be held liable as its liability
springs from that of its employee. Note that Art. 19,
known to contain what is commonly referred as to the
principle of abuse of rights is not a panacea for all
human hurts and social grievances. A common theme
runs thru Art. 19 and 21, that is, the act complained of
must be intentional.
III.
ACTS CONTRA BONUS MORES

1. General Concepts
Elements of acts contra bonus mores:
There is an act which is legal;
The act is contrary to morals, good

customs, public order, or public
policy; and
The act is done with intent to

injure.
a. Broad coverage
no formula that can be used to
determine what is contrary to
morals; neither is there any
formula to establish what is good
custom or what is consistent with
public order or public policy
b. Rationale
Because of the belief that every
good law draws its breath of life
from morals
The provision is a prudent earnest
of justice in the face of the
impossibility of enumerating, one
by one, all wrongs which cause
damage.
2. Breach of Promise
General Rule: Breach of promise to
marry by itself is not actionable.
XPN: A breach of promise to marry
becomes actionable if there are
additional circumstances that make it
fall within the purview of Art. 19, 20,
21 or 2176, such as:
There was financial damage,
Social humiliation was caused

to one of the parties, and
Where
there
was
moral
seduction.
CASE: Tanjanco vs. CA

27

Facts: Apolonio Tanjanco courted Araceli Santos. They
became lovers. Apolonio promised Araceli to marry
the latter, consequently. the former successfully had
carnal access to the latter. Araceli bore a child. Due to
embarrassment and social humiliation, she had to
resign as a secretary of IBM. It came to the point that
she cannot support herself and her baby. In her
complaint for damages, she alleged that due to
Apolonios refusal to marry her, she suffered mental
anguish, besmirched reputation, wounded feelings,
moral shock and social humiliation.
Issue: Whether Araceli Santos has a cause of action to
file the damage suit.
Ruling: No. Araceli was a woman of adult age,
maintained intimate sexual relations with appellant
with repeated acts of intercourse. Such is not
compatible to the idea of seduction. Plainly, there is
voluntariness and mutual passion: for had the
appellant been deceived she would not have again
yielded to his embraces much less for one year without
exacting fulfillment of the alleged promises of marriage
and she would have cut all relationship upon finding
that defendant did not intend to fulfill his promises.
One cannot be held liable for a breach of promise to
marry
3. Seduction and Sexual Assault
-liable
if
one
employed
deceit,
enticement, superior power or abuse of
confidence in successfully having sexual
intercourse with another
CASE: Pe vs. Pe
Facts: Alfonso Pe, the defendant, was a married man,
agent of La Perla Cigar and Cigarette Factory in Gasan
Marinduque who was treated like a son by Cecilio Pe,
one of the petitioners. Cecilio introduced Alfonso to his
children and was given access to visit their house.
Alfonso got fond of Lolita, 24 year old single, daughter
of Cecilio. The defendant frequented the house of
Lolita sometime in 1952 on the pretext that he wanted
her to teach him how to pray the rosary. Eventually
they fell in love with each other. Plaintiff brought
action before lower court of Manila and failed to prove
Alfonso deliberately and in bad faith tried to win
Lolitas affection. The case on moral damages was
dismissed.
Issue: Whether or not defendant is liable to Lolitas
family on the ground of moral, good custom and public
policy due to their illicit affair.
Ruling: Yes. Alfonso committed an injury to Lolitas
family in a manner contrary to morals, good customs
and public policy contemplated in Article 20 of the civil
code. The defendant took advantage of the trust of
Cecilio and even used the praying of rosary as a
reason to get close with Lolita. The wrong caused by
Alfonso is immeasurable considering the fact that he is
a married man.
4. Desertion by a Spouse
If a spouse does not perform his or her
duty to the other, he may be held liable
for damages for such omission because
the same is contrary to law, morals and
good customs.
5. Trespass and Deprivation of Property
5.01. Trespass to and/or deprivation
of real property
Trespass to real property a tort that is
committed when a person unlawfully
invades the real property of another
a person in good faith is not liable but
responsible; the builder, planter
Notes in
or sower in good faith may be

subject to obligations but he must
not
be
penalized
with
the
imposition of damages
5.02. Trespass to Personal Property
in the field of tort, trespass extends to all
cases where a person is deprived of his
personal property even in the absence of
criminal liability
Examples:
cases covered by accession continua
with respect to movable property
where defendant deprived the plaintiff
of personal property for the purpose of
obtaining possession of real property
where petitioner took over all jeepneys
of a transportation company as well as
the operation of service in the companys
route without authority from the Public
Service
Commission
(Cogeo-Cubao
Operators and Drivers Association vs.
CA)
a. Disconnection of Electricity or
Gas Service
if the company disconnect the
electricity service without prior
notice as required by the rules
promulgated
by
duly
authorized government agency
6. Abortion and Wrongful Death
Damages are available if the abortion
was caused thru physicians negligence
Damages are available if the abortion
was done intentionally without the
spouses consent
CASE : Geluz vs. CA
Facts: Nita Villanueva, the wife of Oscar Lazo,
respondent, came to know Antonio Geluz, the
petitioner and physician, through her aunt Paula
Yambot. Nita became pregnant some time in 1950
before she and Oscar were legally married. As advised
by her aunt and to conceal it from her parents, she
decided to have it aborted by Geluz. She had her
pregnancy aborted again on October 1953 since she
found it inconvenient as she was employed at
COMELEC. After two years, on February 21, 1955, she
again became pregnant and was accompanied by her
sister Purificacion and the latters daughter Lucida at
Geluz clinic at Carriedo and P. Gomez Street. Oscar at
this time was in the province of Cagayan campaigning
for his election to the provincial board. He doesnt
have any idea nor given his consent on the abortion.
Issue: Whether husband of a woman, who voluntarily
procured her abortion, could recover damages from
the physician who caused the same.
Ruling: The Supreme Court believed that the minimum
award fixed at P3,000 for the death of a person does
not cover cases of an unborn fetus that is not endowed
with personality which trial court and Court of Appeals
predicated.
Both trial court and CA wasnt able to find any basis for
an award of moral damages evidently because Oscars
indifference to the previous abortions of Nita clearly
indicates he was unconcerned with the frustration of
his parental affections.
Instead of filing an
administrative or criminal case against Geluz, he
turned his wifes indiscretion to personal profit and
filed a civil action for damages of which not only he
but, including his wife would be the beneficiaries. It
shows that hes after obtaining a large money payment
since he sued Geluz for P50,000 damages and P3,000

28

attorneys fees that serves as indemnity claim, which
under the circumstances was clearly exaggerated.
7. Illegal Dismissal
8. Malicious Prosecution
8.01. Definition and Statutory
Bases
an action for damages brought by one
against
another
whom
a
criminal
prosecution, civil suit, or other legal
proceedings has been instituted maliciously
and without probable cause, after the
termination of such prosecution, suit or
proceeding in favour of the defendant
putting of legal process in force, regularly,
for the mere purpose of vexation or injury
statutory bases:
Art. 19 -21
Art. 26
Art. 32-33
Art. 35
Art. 2217 and 2219
8.02. Elements of Cause of Action
1. The fact of the prosecution and the
further fact that the defendant was
himself the prosecutor, and that the
action was finally terminated with an
acquittal;
2. That in bringing the action, the
prosecutor acted without probable
cause;
3. The prosecutor was actuated or
impelled by legal malice.
a. Malice
If
prosecutor
acted
with
inexcusable intent to injure,
oppress,
vex,
annoy
or
humiliate
Presence of probable cause
signifies absence of malice
Complainants
deliberate
initiation of a criminal action
knowing the charge to be false
and groundless
b. Acquittal
Presupposes that a criminal
information is filed in court and
final judgment is rendered
dismissing the case against the
accused
Prior acquittal may include
dismissal by the prosecutor
after preliminary investigation
c. Control by Prosecutor
Complainant may still be liable
for malicious prosecution if the
public prosecutor controlled the
litigation
8.03. Other Bases of Liability for
Abuse of Process
an
alternative
to
malicious
prosecution, a plaintiff may file an
action for damages for abuse of
processes under Art. 2176 and 26 of
the NCC
CASE: Globe Mackay Cable and Radio Corp vs. CA
Facts: Private respondent Restituto M. Tobias was
employed by petitioner Globe Mackay in dual capacity
as purchasing agent and administrative assistant to
the engineering operations manager. In 1972, the
respondent discovered fraudulent anomalies and
transactions in the said corporation for which it lost
several hundred thousands of pesos. The private
respondent reported to his superiors including Henry,
the petitioner. However, he was confronted by Hendry
Notes in
stating that Tobias was the number one suspect. He

was ordered to take a one week forced leave. When he
returned to work, Hendry called him crook and
swindler, and left a scornful remark to the Filipinos.
The petitioners also charged six criminal cases against
the respondentfive cases of estafa and one for
violating Article 290 of the RPC (Discovering Secrets
through Seizure of Correspondence). The petitioner
also sent a poison letter to RETELCO causing the
respondent to be unemployed.
Issue: Whether or not the petitioners are liable for
damages to the respondent.
Ruling: Petitioners invoked the right of damnum
absque injuria or the damage or loss which does not
constitute a violation of legal right or amount to a legal
wrong is not actionable. However, this is not applicable
in this case. It bears repeating that even granting that
petitioners might have had the right to dismiss Tobias
from work, the abusive manner in which that right was
exercised amounted to a legal wrong for which
petitioners must be held liable.
The court awarded Tobias the following: Php 80, 000
as actual damages, Php 200, 000 as moral damages,
Php 20, 0000 as exemplary damages; Php 30, 000 as
attorneys fees; and, costs. Petition was denied and
the decision of CA is AFFIRMED.
9. Public Humiliation
Cases when plaintiff suffered humiliation
thru the positive act of defendant
directed against the plaintiff, e.g., slap
on the face of the plaintiff in public
RPC: slander by deed committed by
any person who performs an act that
costs dishonour, discredit or contempt
upon the offended party in the presence
of other person/s
CASE: Grand Union Supermarket, Inc. vs. Jose Espino,
Jr
Facts: Jose J. Espino. Jr., a civil engineer and an
executive of Procter and Gamble Philippines, Inc,
together with his wife and two daughters went to shop
at South Supermarket in Makati. Finding a cylindrical
"rat tail" file which he needed for his hobby, he picked
it up and held it fearing it might get lost because of its
tiny size. While shopping, they saw the maid of Jose's
aunt so as he talked, he placed the rat tail in his breast
pocket partly exposed. At the check-out counter, he
paid for their purchases worth P77 but forgot to pay
the file. As he was exiting the supermarket, he was
approached by Guard Ebreo regarding the file in his
pocket. He quickly apologized saying "I'm Sorry" and
he turned towards the cashier to pay. But, he was
stopped and instead was brought to the rear of the
supermarket when he was asked to fill out an Incident
Report labelling him as "Shoplifter". His wife joined
him since he was taking so long and they were brought
to the first checkout counter where Ms. Nelia SantosFandino's desk was. She made a remark:"Ano, nakaw
na naman ito". Jose told Ms. Fandino that he was
going to pay for the file because he needed it but she
replied "That is all they say, the people whom we
cause not paying for the goods say... They all intended
to pay for the things that are found to them."
Jose objected stating he is a regular customer of the
supermarket. He gave P5 to pay for the P3.85 cost of
the file but Ms. Fandino said the P5 was his fine which
will be rewarded to the guard. People were staring at
them. He took the file and paid the file at the nearest
checkout counter with P50 and got out as fast as they
could. His first impulse was to go back to the
supermarket that night to throw rocks at its glass

29

windows. But reason prevailed over passion and he
thought that justice should take its due course.
He filed against Grand Union Supermarket et
al. founded on Article 21 in relation to Article 2219 of
the New Civil Code and prays for moral damages,
exemplary damages, attorney s fees and 'expenses of
litigation, costs of the suit and the return of the P5 fine
CFI: dismissed. CA: reversed and granted damages
of P75,000 by way of moral damages, P25,000 as
exemplary damages, and P5,000 as attorney's fee
Issue: Whether Grand Union Supermarket should be

liable for public humiliation founded on Article 21 in
relation to Article 2219 of the New Civil Code
Ruling: YES. Grand Union Supermarket ordered to pay,
jointly and severally moral damages P5,000 and
P2,000 as and for attorney's fees; and to return the P5
fine. Jose did not intend to steal the file and that is act
of picking up the file from the open shelf was not
criminal nor done with malice or criminal intent for on
the contrary, he took the item with the intention of
buying and paying for it personal circumstances:
graduate Mechanical Engineer from U.P. Class

1950, employed as an executive of Proctor &
Gamble Phils., Inc., a corporate manager incharge of motoring and warehousing therein;
honorably discharged from the Philippine Army
in 1946; a Philippine government pensionado
of the United States for six months; member of
the Philippine veterans Legion; author of
articles published in the Manila Sunday Times
and Philippines Free Press; member of the
Knights of Columbus, Council No. 3713; son of
the late Jose Maria Espino, retired Minister,
Department of Foreign Affairs at the Philippine
Embassy Washington
Jose was falsely accused of shoplifting is evident; fine
branding him as a thief which was not right or
justified. the mode and manner in which he was
subjected, shouting at him, imposing upon him a fine,
threatening to call the police and in the presence and
hearing of many people at the Supermarket which
brought
and
caused
him
humiliation
and
embarrassment, sufficiently rendered the petitioners
liable for damages under Articles 19 and 21 in relation
to Article 2219 of the Civil Code. It is against morals,
good customs and public policy to humiliate,
embarrass and degrade the dignity of a person.
Everyone must respect the dignity, personality, privacy
and peace of mind of his neighbours and other persons
(Article 26, Civil Code). His forgetfulness led to his
embarrassment and humiliation thereby causing him
mental anguish, wounded feelings and serious anxiety.
His act of omission contributed to the occurrence of his
injury or loss and such contributory negligence is a
factor which may reduce the damages that private
respondent may recover (Art. 2214, New Civil Code).
Moreover, that many people were present and they
saw and heard the ensuing interrogation and
altercation appears to be simply a matter of
coincidence in a supermarket which is a public place
and the crowd of onlookers, hearers or bystanders was
not deliberately sought or called by management to
witness private respondent's predicament. Grand
Union Supermarket acted in good faith in trying to
protect and recover their property, a right which the
law accords to them. - eliminate the grant of
exemplary damages
CASE: Soledad Carpio vs. Valmonte
Facts: Respondent Leonora Valmonte is a wedding
coordinator. Michelle del Rosario and Jon Sierra
Notes in
engaged her services for their church wedding on

October 10, 1996. At about 43 0 pm on that day,
Valmonte went to the Manila Hotel and when she
arrived at Suite 326-A, several persons were already
there including Soledad Carpio, the aunt of the bride.
After reporting to the bride, Valmonte went out of the
suite to go to the reception on hall to give the meal
allowance to the band and to pay the suppliers. Upon
entering the suite, Valmonte noticed the people staring
at her and it was at this juncture that Soledad Carpio
allegedly uttered the following words to Valmonte: "
Ikaw lang ang lumabas ng kwarto, nasaan ang dala
mong bag? Saan ka pumunta? Ikaw lang ang lumabas
ng kwarto, ikaw ang kumuha." It turned out that after
Valmonte left the room to attend to her duties,
petitioner discovered that the pieces of jewelry which
she placed ins i de the comfort room in a paper bag
were lost and these include diamond rings, earrings,
bracelet and diamond necklace with a total value of
about 1M pesos. Valmonte was allegedly bodily
searched, interrogated and trailed by the police
officers, but the petitioner kept on saying the words "
Siya lang ang lumabas ng kwarto ". Valmonte's car
was also searched but the search yielded nothing.
Few days after the incident, petitioner received a letter
from Valmonte demanding a formal letter of apology
which she wanted to be circulated to the newlyweds'
relatives and guests to redeem her smeared reputation
but the petitioner did not respond. Valmonte filed a
suit for damages.
The trial court dismissed the complaint and ruled that
when sought investigation for the loss of her jewelry,
she was merely exercising her right and if damage
results from a person exercising his legal right, it is
damnum absque injuria. It added that no proof was
presented by Valmonte to show that petitioner acted
maliciously and in bad faith in pointing to her as the
culprit.
The CA ruled out differently and opined that Valmonte
has clearly established that she was singled out by the
petitioner as the one responsible for the loss of her
jewelry. However, the court finds no sufficient
evidence to justify the award of actual damages.
Hence, this petition.
Issue: Whether or not the respondent is entitled to the
award of actual and moral damages
Ruling: The Court ruled that the respondent in entitled
to moral damages but not to actual damages.
In the sphere of our law on human relations, one of
the fundamental precepts is the principle known as "
abuse of rights " under Article 19 of the Civil Code. To
find existence of an abuse of right, the following
elements must be present: 1) there is legal right or
duty; 2) which is exercised in bad faith; 3) for the sole
intent or prejudicing or injuring another. Thus, a
person should be protected only when he acts in the
legitimate exercise of his right, that is when he acts
with prudence and good faith; but not when he acts
with negligence or abuse.
The Court said that petitioner's verbal reproach against
respondent was certainly uncalled for considering that
by her own account nobody knew that she brought
such kind and amount of jewelry inside the paper r
bag. This being the case, she had no right to attack
respondent with her innuendos which were not merely
inquisitive but outrightly accusatory. By openly
accusing respondent as the only person who went out
of the room before the loss of the jewelry in the e
presence of all the guests therein, and ordering that
she be immediately bodily searched, petitioner virtually
branded respondent as the thief. Petitioner had wilfully
caused injury to respondent in a manner which is
contrary to morals and good customs. Certainly,
petitioner transgressed the provisions of Article 19 in

30

relation to Article 20 for which she should be held
accountable.
CHAPTER 9
HUMAN DIGNITY
Art. 26. Every person shall respect the dignity,
personality, privacy and peace of mind of his
neighbours 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.
I. PRIVACY
1. Constitutional Right to Privacy
a. Scope of Protection
Right to privacy is protected by the due
process clause of the Constitution. Its protection is also
included in the protection of:
the right against unreasonable search and

seizures,
the right to privacy of ones communication

and correspondence, and
the right against self-incrimination.

Note: It includes the right to be let alone.
b. Reasonable expectation of Privacy
The reasonableness of a persons expectation
of privacy depends on a two-part test:
1. Whether by his conduct, the individual has
exhibited an expectation of privacy;
2. Whether his expectation is one that society
recognizes as reasonable.
The factual circumstances of the case
determine the reasonableness of the expectation.
However, other factors, such as customs, physical
surroundings and practices of a particular activity, may
serve to create or diminish this expectation.
Right of privacy may be violated if the court will

force a person to let other people have access to
him. A person who is not incapacitated with full
mental capacity and with the right of choice may
not be subject to visitation rights even by his
relatives against his free choice. Otherwise, there
will be deprivation of his constitutional rights.
(Ilusio v. Bildner)
Thus, where the employees used a password on

his computer, did not share his office with the coworkers and kept the same locked, he had a
legitimate expectation of privacy and any search of
that space and items located therein must comply
with
the
(Constitutional
provision
against
unreasonable searches and seizure). (Polo v.
Constantino-David)
c. Protection of Privacy under the Rules and
Statutes
RPC: violation of secrets by an officer,

revelation of trade and industrial secrets,
trespass to dwelling
Anti-Wiretapping Law
The Secrecy of Bank Deposits Act
Intellectual Property Code
Writ of Habeas Data - a remedy available to

any person whose right to privacy in life,
liberty and security or threatened by an
unlawful act or omission of a public official or a
Notes in
private individual or entity engaged in the

gathering, collecting or storing of data or
information regarding the person, family, home
and correspondence of the aggrieved party.
(Congress passed R.A. No. 10173 Data
Privacy Act of 2012)
d. Facets of Privacy
Privacy in the Constitutional sphere includes:
1) Privacy in a Physical sense denotes
seclusion, solitude, security or bodily integrity;
2) Privacy in Informational sense denotes
confidentiality,
secrecy,
or
anonymity,
especially with respect to correspondence,
conversation and records;
3) Proprietary Privacy limits the use of a
persons name, likeness identity, or other
attributes of identity and exclusive possession.
4) Privacy in a decisional sense- denotes liberty,
freedom, choice or autonomy in decision
making about sex, reproduction, marriage,
family, and health care. Thus a person has the
right to decide what he will wear inside the
house, if he will sleep naked in his bedroom
and other matters that will not affect the
public. Any law restricting or intruding into
such private matters can be considered as
violation of substantive due process for lack of
a valid subject.
e. Basis of Liability for Damages
- Art. 32 of the NCC
- anchored on deprivation of due process, violation of
the right against unreasonable searches and seizure or
the privacy of communication and correspondence
2. VIOLATION OF THE RIGHT TO PRIVACY AS
INDEPENDENT TORT
2.01 PERSONS ENTITLED TO RELIEF
General Rule: Only natural persons can invoke the
right to privacy.
Exception: The right against unreasonable searches
and seizure can, however, be invoked by a juridical
entity as well as the right to be secure in its papers
and effects, not because it involves a violation against
its privacy but its entitlement of the constitutional right
and violation thereof will entitle the corporation to
damages under Art. 32 of the CC.
a. Purely Personal Right
- only the person whose privacy is claimed to have
been violated may invoke it
- it can be subject to waiver.
b. Effect of Death
- The fact that the right is a personal right, it ceases
upon the death of the person. However in some cases,
the law allows the heirs of the deceased to enter into a
license agreement for the depiction of the life of the
deceased
2.02 RATIONALE
It protects solitude necessary for creative thought.

It allows us the independence that is part of raising
a family. It protects our right to be secure in our
homes and possessions, assured that the
government cannot come barging in. Privacy also
encompasses our right to self-determination and to
define who we are. although we live in a world of
noisy self-confession, privacy allows us to keep
certain facts to ourselves if we choose. The right to
privacy, it seems, is what makes you civilized.
a. Natural Law Justification
The court observed that the constitutional
guaranties of life, liberty and the pursuit of happiness,
as well as the right to security against unlawful search
and seizure, even natural law, have been variously
mentioned or suggested, as the bases and theories of
the right of privacy. (Jose Cordero v. Alica B.
Buigasco)
b. Libertarian Justification

31
Notes in
According to John Stuart Mill, the appropriately

private sphere is the domain of what he termed as
self-regarding or purely personal conduct.
Self-regarding conduct
a conduct that neither
violates any specific duty to the public, nor occasions
perceptible hurt to any assignable individual except
himself.
c. Opinions Rejecting the Right to Privacy
Others are reluctant to recognize the right to
privacy because they believe that the interest of free
speech and the importance in our civilization of
disseminating the truth about things and people weigh
heavily against any general recognition of a right to be
let alone even though the invasion of privacy may be
of the intentional character.
3. STANDARD USED IN DETERMINING
LIABILITY
- is that of a person of ordinary sensibilities
TORT
4. CLASSIFICATION OF TORT OF VIOLATION OF

THE RIGHT TO PRIVACY
1) Intrusion
2) Publication of Private facts
3) Making one appear before the public in an
objectionable false light; and
4) Commercial appropriation of likeness of another.
4.01 INTRUSION
The tort of intrusion upon plaintiffs solitude
protects a persons sense of locational and
psychological privacy. The growing acceptance of the
existence of this tort is equated with increasing
capability of the electronic devises capacity to an
individuals anonymity, intrude upon his most intimate
activities and expose his most personal characteristics
to public gaze. The claim is not so much one of the
total secrecy as it is of the right to define ones circle
of intimacy to choose who shall see bequeath the
quotidian mask. Loss of control over which face one
puts on may result in literal loss of self-identity and is
humiliating beneath the gaze of those whose curiosity
treats a human being as an object.
a. Forms of Intrusion
Examples:
1. Art 26 prying into the privacy of
anothers residence.
2. criminal trespass defined under Art 280 of
RPC
The law has long held that it is illegal to peep,

snoop, and eavesdrop on people in private places.
b. Intrusion in Public Places
Generally, there is no invasion of the right to

privacy when a journalist records, photographs or
writes about something that occurs in public
places. People in public places must assume that
they might be photographed or recorded.
There are exceptions, however. While merely

watching a person in public places is not a
violation, one does not automatically make public
everything he does in public. For instance, the acts
of the journalist should not be to such extent that
it
constitutes
harassment
or
overzealous
shadowing.
c. Persons Protected
The law protects everyone, not just public figures.
There is no intrusion when an employer

investigates its employee or when a school
investigates its student. In the latter case,
investigation may cover an alleged offense
committed outside premises.
The general rule is that the authority of the school

is co-extensive with its territorial jurisdiction, or its
school grounds, so that any action taken for acts
committed outside the school premises should, in
general be left to the police authorities, the courts

of justice, and the family concerned.
However, this rule is not rigid or one without
exceptions. It is the better view that there are
instances when the school might be called upon to
exercise its power over its student or students for acts
committed outside the school and beyond school hours
in the following:
a) In cases of violations of school policies and
regulations occurring in connection with a schoolsponsored activity off-campus, or
b) In cases where the misconduct of the
student involves his status as a student or affects the
good name or reputation of the school.
4.02 WIRE-TAPPING AND OTHER SIMILAR
MEANS
RA No. 4200 it is unlawful for any person, unless
authorized
by
the
proper
telephone
company/corporation or unless authorized by the court
under the provisions of Section 3 of Republic Act No.
4200 (Anti Wire-Tapping Law) to install or connect or
cause or induce to be installed or connected any
telephone or line whether by connecting it by wire or
cable or through any other means, with already
existing telephone duly installed in private residences
or public or private buildings.
PD No. 55 - dealing with unlawful telephone
installations
considers unlawful telephone installation as a
nefarious activity because it deprives the lawful
users of telephones of the right to full use of
the telephones and violates their right to
privacy.
RA 5733 - punishes registered electronics and
communications engineer who shall engage in illegal
wire-tapping and/or the employment of electronics
device in violation of the privacy of another or in
disregard of the privileged of private communications
or maintain an unlicensed and/or unregistered
communications system or device.
RA 4200 - makes it illegal for any person, not
authorized by all the parties to any private
communication to secretly record such communication
by means of a tape recorder.
4.03 INTRUSION IN PUBLIC RECORDS
General Rule: There is no intrusion into the right of
privacy of another if the information sought is a matter
of public record.
Exceptions:
a. Code of Conduct for Public Officials and Employees
Nevertheless, when the information requested
from the government intrudes into the privacy of a
citizen, a potential conflict between the rights to
information and to privacy may arise. There can be a
violation of the right to privacy if the matter sought to
be revealed does not involve anything of public
concern. This rule is reflected in RA No. 6713
otherwise known as the Code of Conduct and Ethical
Standards for Public Officials and Employees.
Sec.3. Every department, office and agency
shall provide official information, records or documents
to any requesting public, except if:
e) it would disclose information of a personal
nature where disclosure would constitute a clearly
unwarranted invasion of personal privacy; xxx.
4.04 INTRUSION IN THE INTERNET
There will be intrusion through the internet if
a person is engaged in what is known as unlawful
access contemplated under Sec. 31 of RA 8792
(Electronic Commerce Act.)
Sec. 31. Lawful Access Access to an
electronic file, or an electronic signature of an
electronic data message or electronic document shall

32

only be authorized and enforced in favour of the
individual or entity having a legal right to the
possession or the use of the plain text, electronic
signature or file and solely for the authorized purposes.
The electronic key for identity or integrity shall not be
made available to any person or party without the
consent of the individual or entity in lawful possession
of the electronic key.
Some 32 of the same law provides that except
for the purposes authorized under the Act any person
who obtained access to an electronic key, electronic
data message or electronic document, book, register,
correspondence, information, or other material
pursuant to any powers conferred by the Act, shall not
convey to or share the same with any other person.
On the other hand, Section 33 punishes
hacking or cracking which refers to unauthorized
access
into
or
interference
in
a
computer
system/server or information and communication
system; or any access in order to corrupt, alter, steal,
or destroy using computer or other similar information
and communication devices, without the knowledge
and consent of the owner of the computer or
information and communications system.
4.05 VOYEURISM
RA 9995 (Anti-Photo and Video Voyeurism Act of 2009
- the State shall penalize acts would destroy the
honour, dignity and integrity of a person.
4.06 PUBLICATION OF PRIVATE FACTS
- the interest sought to be protected is the right to be
free from unwarranted publicity, from the wrongful
publicizing of the private affairs and activities of an
individual which are outside the realm of legitimate
public concern.
The elements cited in American Jurisprudence of this
tort are as follows:
a. There must be a public disclosure;
b. The facts disclosed must be a private fact;
c. The matter must be one which would be
offensive and objectionable to a reasonable
person of ordinary sensibilities.
Our CA ruled in Cordero v. Buigasco, that there
would be an actionable violation of the right of privacy
if:
1) publicity is given to any private or purely
personal information about a person;
2) without the latters consent;
3) regardless of whether or not such publicity
constitutes a criminal offense, like made with the
intent of gain or for commercial and business purposes
invariably serves to aggravate the violation of the
right.
a. Publication of Public Facts and Libel
There are cases the tort of publication of
private facts is treated as libel. For example in Binay v.
Sec. of Justice, a criminal case of libel was allowed to
prosper against a newspaper where the private
respondents only purpose in focusing on the minor
childs status as an adopted child and her alleged
extravagant purchases was to malign her before the
public and to bring her into disrepute. It is believed
that if the focus of the newspaper article is the status
as an adopted, the action for damages can still be
maintained on the basis of the violation of the right of
privacy of the minor. It is believed that the publication
of such private fact (status of being an adopted) is
actionable not only as libel but also alternatively as
violation of the right to privacy. The alternative relief
that may be provided by an action for violation of the
right to privacy may even lessen the rigid rules that
are imposed on libel under the RPC.
b. Newsworthiness as Defense: Public Figures
Notes in
Public figures, most especially those holding

responsible positions in government, enjoy more
limited right to privacy as compared to ordinary
individuals, their actions being subject to closer public
scrutiny. As a public figure, the subject must be
regarded as having passed into public domain and as
an appropriate subject of expression and coverage by
any form of mass media. To be liable, the defendant
must be guilty of knowing and reckless disregard of
truth. The privilege is not limited to dissemination of
news; it also extends to information or education or
even entertainment or amusement, by books, articles,
pictures, films and broadcasts concerning interesting
phases of human activity in general, as well as
reproduction of the public scene in newsreel and
travelogues.
c. Official Proceedings
The publication of facts derived from the
records of official proceedings, which are not otherwise
declared by law as confidential, cannot be considered a
tortious conduct. The rule, however, admits of certain
exceptions. Thus, Art. 357 of RPC prohibits publication
of certain acts referred to in the course of newspaper,
daily or magazine, who shall publish facts connected
with private life of another and offensive to the
honour, virtue, and reputation of said person, even
though said publication be made in connection with or
under the pretext that it is necessary in the narration
of any judicial or administrative proceedings wherein
such facts have been mentioned.
d. Official Functions
It should be emphasized that the right to
privacy belongs to the individual acting in his private
capacity and not to a governmental agency or officers
tasked with, and acting in, the discharge of public
duties. Thus, there can be no invasion of privacy if
what is sought to be divulged is a product of action
undertaken in the course of the performance of official
functions. To declare otherwise would be to clothe
public scrutiny for their official acts.
4.07 FALSE LIGHT
The media may commit the tort by distorting
news reports. Thus, liability may result if film or
videotape is edited in such a way that the plaintiff is
made to appear to have committed an illegal act
although he actually did not do so.
In Globe Mackay Cable & Corp. CA, The
complainant in the said case was dismissed from
employment for being allegedly involved in fictitious
purchases and other fraudulent transactions. The
dismissal of the complainant was then found to be
based on an imputation of guilt without basis. As a
result, the complainant failed to gain employment and
remained unemployed for a longer period of time.
However, the situation in this case is not exactly the
tort contemplated in the Restatement of the Law of
Torts because there was no publication.
a. Alternative to Defamation
In many cases, the publicity given to the
plaintiff is defamatory hence n action for libel is also
warranted. In such case, the action for invasion of
privacy will afford an alternative remedy.
The tort putting another in false light may be
distinguished from defamation primarily because in the
former the gravamen of the claim is not reputational
harm but rather the embarrassment of a person in
being made into something he is not.
Defamation
False light
Publication in defamation False light cases (as in
is satisfied if a letter is publication
of
private
sent to a third person.
facts),
the
statement
should be actually made in
public.
In defamation, what is
In false light cases, the

33

published
lowers
esteem in which
plaintiff is held.
the
the
defendant may be held

liable for damages if he
published an unauthorized
biography of a famous
baseball
player
exaggerating his feats on
the baseball field and
falsely portraying him as a
war hero.
b. Fictionalized Account of Life

The right to invade a persons privacy to
disseminate public information does not extend to a
fictional or novelized representation of a person, no
matter how public a figure he or she may be. In the
case at bar, while it is true that the petitioner exerted
efforts to present true-to-life story of Moises Padilla,
the petitioner admits that he included a little romance
in the film because without it, it would be drab story of
torture and brutality. (Lagunzad v. Vda. de Gonzales)
4.08
COMMERCIAL
APPROPRIATION
OF
LIKENESS
a. Concept
The unwarranted publication of a persons
name or the unauthorized use of his photograph or
likeness for commercial purposes is an invasion of
privacy.
With respect to celebrities, however, the right
of publicity is often treated as a separate right that
overlaps but is distinct from the right of privacy. It has
been observed that the celebrities are not interested in
barring any person from commercially appropriating
their likeness. They treat their names and likeness as
property and they want to control and profit therefrom.
In invasion of privacy, damages are measured by the
injury to feelings, emotional distress, humiliation and
mental anguish. On the other hand, celebrities who file
actions to protect their right to publicity do so to
protect their economic interest. They treat their names
and likeness as property which cannot be encroached
upon by another.
In Simonette de los Reyes et. al v, Mobil Oil
Philippines, The plaintiff in the case were commercial
models and winners of beauty pageant who agreed to
lend theirs services to a project of the First Lady of the
PH and had their pictures taken. Later they discovered
that there photos were used in the calendars of
defendant Corporation. The Court sustained the
plaintiffs claim for damages as there was a violation of
their right to privacy.
b. Policy Consideration
There are at least three policy considerations
behind the right of publicity on the part of celebrities.
First, the right of publicity vindicates the
economic interests of celebrities, enabling those whose
achievements have imbued their identities with
pecuniary value to profit from their fame.
Second, the right of publicity fosters the
production of intellectual and creative works by
providing the financial incentive for individuals to
expend the time and resources necessary to produce
them.
Third, the right of publicity serves both
individual and societal interests by preventing what is
regarded by our legal tradition as wrongful
misconduct; unjust enrichment and deceptive trade
practices.
II. INTERFERENCE WITH FAMILY AND OTHER
RELATIONS
1. ALIENATION OF AFFECTION UNDER ARTICLE
26.
There is the meddling of so-called friends who
poison the mind of one or more members of the family
Notes in
against the other members. In this manner many

happy family is broken up or estranged.
2. ALIENATION OF AFFECTION OF SPOUSE
Alienation of affection consists in depriving one spouse
of the affection, society, companionship and comfort of
the other. It is not necessary that there is adultery or
the spouse is deprived of household services. The gist
of the tort is an interference with one spouses mental
attitude toward the other and the conjugal kindness of
marital relations resulting in some actual conduct
which materially affects it. It extends to all cases of
wrongful interference in the family affairs of others
whereby one spouse in induced to leave the other
spouse or to conduct himself or herself that the
comfort of married life is destroyed.
a. Requirements
1) valid marriage;
2) wrongful conduct by the defendant with the
plaintiffs spouse;
3) the loss of affection or consortium; and
4) a causal relation between the defendants
conduct and the deprivation of affection.
b. Alienation of Affection by In-Laws
The law has tender regard for the ties of
kinship subsisting between parent and child and it will
not disregard these ties, although the child be married
and full age. When trouble and disagreements arise
between the married pair, the most natural promptings
of the child direct it to find solace and advice under the
parental roof. All legitimate presumptions in such cases
to advise that the parent will only act for the best
interest of the child.
In such case, malice must be established, and
it must appear that defendants acts were controlling
cause of the loss of affection.
d. Alienation of Affection by Non-relatives
The requirement of malice is likewise
necessary if the defendant is not a relative of a spouse
whose affection was said to have been alienated.
Thus, a religious sect cannot be held liable for
the tort of alienation of affection if, upon their
invitation, the wife of the plaintiff joined their group
over the objection of the husband. Mere objection of
the husband alone cannot make it objectionable.
3. DISTURBING FAMILY RELATIONS
TENCHAVEZ V. ESCAO
Facts:
Vicenta Escao and Pastor Tenchavez secretly got
married before a Catholic chaplain and planned to
elope. The elopement did not materialize because
Vicentas mother discovered such marriage. Her
parents asked the advice of one Father Reynes and
subsequently agreed to recelebrate the marriage.
However, Vicenta refused to proceed with the
ceremony because a letter from the students of San
Carlos College disclosed that Pastor and their
matchmaker; Pacita Noel had an amorous relationship.
Vicenta left for the States, acquired a foreign divorce
and married an American, Russel Leo Moran in
Nevada. She sought for a divorce from Tenchavez in
1950 and sought ecclesiastical release from her
marriage to Tenchavez in 1954. Escano claims that
state recognition should be accorded the Church's
disavowal of her marriage with Tenchavez. Escano
argued that her second marriage deserves the laws
recognition and protection over the other.es the laws
recognition and protection over the other since it fits
concept of a marriage as a social institution because
publicly contracted, recognized by both civil and
ecclesiastical authorities, and blessed by three
children. She also contends that the court has no
jurisdiction over her.

34

Husband filed complaint Vs. Parents: for having
dissuaded and discouraged Vicenta from joining her
husband and alienating her affections.
Parents filed counterclaim for moral and exemplary
damages.
Issue
WON there is an action for alienation of affections
against parents
Held: NO
Ratio:
1. no proof of malice
2. parents themselves suggested that the marriage be
celebrated again
3. also, Vicenta appeared to have acted independently
and being of age, she was entitled to.
Notes in
Western District of Virginia ruled that the parody was

not libelous. The jury however awarded $200,000 in
damages on separate count of intentional infliction of
emotional distress, a cause of action that did not
require a false statement of fact to be made. The US
Supreme Court in a unanimous decision overturned the
jury verdict of Virgina Court and held that Falwell may
not recover for intentional infliction of emotional
distress. An intentional tort causing emotional distress
must necessarily give way to the fundamental right of
free speech. It must be observed that although the US
SC regarded Falwell as a public figure, he was an
individual particularly singled out or identified in the
parody appearing on Hustler magazine. Also, the
emotional distress allegedly suffered by Reverend
Falwell involved a reactive interest an emotional
response to the parody that supposedly injured his
psychological well-being.
III. VEXATION AND HUMILIATION

1.
HUMAN
ON
ACCOUNT
OF
PERSONAL
CONDITION.
The fourth paragraph of Article 26 makes one
liable for vexing or humiliating another on
account of his religious beliefs, lowly station in
life, place of birth, physical defect or other
personal condition.
2. INFILCTION OF EMOTIONAL DISTRESS.
In MVRS Publication Inc., et al. v Islamic
Dawah Council of the Philippines, Inc., et al., The SC
explained that under the Second Restatement of the
Law, to recover for the intentional infliction of
emotional distress the plaintiff must show that:
(a) the conduct of the defendant was intentional or in
reckless disregard of the plaintiff;
(b) the conduct was extreme and outrageous;
(c) there was a causal connection between the
defendants conduct and the plaintiffs mental distress;
and
(d) the plaintiffs mental distress was extreme and
severe.
a.) Extreme and Outrageous Conduct.
- means 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 defendants
actions must have been so terrifying as naturally to
humiliate, embarrass or frighten the plaintiff.
b. 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.
Several emotional distress, - refers to any type of
severe and disabling emotional or mental condition
which may be generally recognized and diagnosed by
professional trained to do so, including post-traumatic
stress
disorder,
neurosis,
psychosis,
chronic
depression, or phobia.
Plaintiff is required to show, among other things, that
he or she suffered emotional distress so severe that no
reasonable person could be expected to endure it;
severity of the distress in an element of the cause of
action, not simply a matter of damages.
The SC explained in the MVRS PUBLICATIONS,
Inc. case that Hustler Magazine v Falwell illustrated the
test case of a civil action for damage on intentional
infliction of emotional distress. A parody appeared in
Hustler
magazine
featuring
the
American
fundamentalist preacher and evangelist Reverend Jerry
Falwell depicting him in an inebriated state having
incestuous, sexual liaison with his mother in an
outhouse. Falwell sued Hustler and its publisher Larry
Flynt for damages. The US District Court for the
The Supreme Court likewise cited Professor

William Prosser who views tort actions on intentional
infliction of emotional distress in this manner:
The plaintiff must necessarily be expected and
required to be hardened to a certain amount of rough
language, and to acts that are definitely inconsiderate
and unkind . . . The plaintiff cannot recover merely
because of hurt feelings.
The Supreme Court also noted that Professor
Calvert Magruder reinforces Prosser with this succinct
observation, viz:
There is no occasion for the law to intervene in every
case where someones feelings are hurt. There must
still be freedom to express an unflattering opinion, and
some safety valve must be left through which irascible
tempers may blow off relatively harmless steam.
c. Distinguished from defamation.
Defamation
Emotional Distress
The
tort
action
is
personal in nature.
Calls for the application of Belongs to the reactive
the
relational
harm harm principle.
principle.
d. Distinguished from Parasitic Damages for
Emotional Distress.
Parasitic Damages depend on the existence of
another tort instead of an independent tort for
intentional infliction of emotional distress.
even if the requisites enumerated in the
Restatement are absent, it is still necessary to
determine if the facts justify the award of
damages under Articles 19, 20 and 21 of the
New Civil Code. Thus, while the act may not be
an intentional infliction of emotional distress as
contemplated in American law, the act may
still be considered an abuse of right or an act
that is contrary to morals.
3. DISCRIMINATION
Treaties that can be invoked:
a) Universal Declaration of Human Rights
b) International Convention on Economic, Social
and Cultural Rights
c) International Convention on the Elements of All
Forms of Racial Discrimination
d) Convention against Discrimination in Education
e) Convention
(No.
111)
Concerning
Discrimination in Respect of Employment and
Occupation.
Existing
statutes
recognize
different
form
of
discriminations:
a.) The Labor Code expressly disallows
discrimination of women in the workplace;
b.) The Magna Carta for Disabled Persons
likewise expressly prohibits discrimination of disabled
persons;

35

c.) Republic Act No. 8504 makes one liable for
discrimination of AIDS victims; and
d.)
Republic
Act
No.
8972
prohibits
discrimination of solo parents
3.01. Discrimination under the Labor Code.
An employer who unreasonably discriminates

against women who works in his factory may
similarly be held liable for damages.
The Law identifies two examples of acts of
discrimination:
a) Payment of a lesser compensation, including wage,
salary or other form of remuneration and fringe
benefits to a female employee as against a male
employee, for work of value; and
b) favoring a male employee over female employee
with respect to promotion, training opportunities,
study and scholarship grants solely on account of their
sexes.
Note: The law imposes criminal liability on the person
who violates the provision. Nevertheless, it is expressly
provided that the institution of any criminal action
shall not bar the aggrieved employee from filing an
entirely separate and distinct action for money claim.
3.02. Discrimination of the Disabled.
- expressly prohibited in Republic Act No. 7277
otherwise known as Magna Carta for Disabled
Persons.
- Section 32 provides that no entity, whether public or
private shall discriminate against a qualified disabled
person by reason of disability in regard to job
application procedures, the hiring, promotion, or
discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of
employment. (see Magna Carta for Disabled persons
for the acts that are identified to be discriminatory)
- Chapter II of the law specifies acts of discrimination
on transportation. Section 34 provides that it shall be
considered discrimination for franchisees or operators
and personnel of sea, land, and air transportation
facilities to charge higher fare or to refuse to convey a
passenger, his orthopaedic devices, personal effects,
and merchandize by reason of his disability.
- Section 36 provides that no disabled person shall be
discriminated on the basis of disability in the full and
equal enjoyment of the goods, services, facilities,
privileges, advantages or accommodations of any place
of public accommodations by any person who owns,
leases, or operates a place of public accommodation.
- Section 35 of the law enumerates all the
establishments
that
are
considered
public
accommodations or services. 3.03 Discrimination
under the Magna Carta for Women
- Law: RA. No. 960 otherwise known as Magna Carta
for Women.
a. Meaning of discrimination.
- discrimination against women in Section 4(d) thereof
as while Section 14 and 16 are specific provisions on
discrimination.
b. Liability of Damages
- if the violation is committed by a private entity or
individual, the person directly responsible for the
violation shall be liable to pay damages.
IV. SEXUAL HARASSMENT
1. Statutory Provisions on sexual harassment.
- special law on sexual harassment, Republic Act No.
7877
(otherwise
known
as
the
Anti-Sexual
Harassment Act of 1995) was passed only in
February, 1995.
- A civil action, separate and distinct from the criminal
action may be commenced under Republic Act No.
7877. Section 6 of the said law provides that nothing
in the Anti-Sexual Harassment Act shall preclude the
victim of work, education or training-related sexual
Notes in
harassment
from
instituting
a
separate
and
independent action for damages and other affirmative
relief.
a. Violence against Women.
Harassment is likewise punishable under RA no. 9262
otherwise known as the Anti-Violence Against Women
and Children Act.
- Sec. 5 of it makes one with criminally liable for any
form of harassment that causes substantial emotional
or psychological distress to a woman. The crime may
be committed only by persons with sexual or dating
relationship with the offended woman.
b. Magna Carta of Women.
- RA.9710 otherwise known as Magna Carta for
Women considers sexual harassment as violence
against women. Those whole are guilty of sexual
harassment are liable for damages under Sec. 41 or
RA 9710.
2. HISTORICAL DEVELOPMENT.
In the community of nations, there was a time when
discrimination was institutionalized through the
legalization of now prohibited practices. Indeed, even
within this century, persons were discriminated against
merely because of gender, creed or the color of their
skin, to the extent that the validity of human beings
being treated as mere chattel was judicially upheld in
other jurisdictions. But in humanitys march towards a
more refined type of conduct for, at bottom, history
reveals that the moving force of civilization has been
to realize and secure a more humane existence. Thus,
in our nations very recent history, the people have
spoken, through Congress, to deem conduct
constitutive of sexual harassment or hazing, acts
previously considered harmless by custom, as criminal.
In disciplining erring judges and personnel of the
Judiciary then, this Court can do no less. (Vedana vs.
Valenci)
3. PARTIES.
- may be committed by one having authority, influence
or moral ascendancy over another in a work, or
training or education environment against the person
over whom the influence or moral ascendancy is
exerted
- education or training environment: may be
committed against one who is under the care, custody
or supervision of the offender or against one whose
education, training, apprenticeship or tutorship is
entrusted to the offender.
a. Principal by Inducement.
- Any person who directs or induces another to commit
any act of sexual harassment as herein defined, or
who cooperates in the commission thereof by another,
without which it would not have been committed, shall
also be held liable under the Act. (Sec. 3).
b. Employer or Head of Office.
The law likewise imposes liability on the employer or
head of the Office or Educational or Training Institution
concerned.
the employer or head of office, educational or

training institution shall be solidarily liable for damages
arising from the acts of sexual harassment committed
in the employment, education or training environment
if the employer or head of office, educational or
training institution is informed of such acts by the
offended party and no immediate action is taken
thereon.
4. HOW COMMITTED.
- committed whenever any of the persons mentioned
in paragraph (a) above demands, requests or
otherwise requires any sexual favor from the other,
regardless of whether the demand, request or
requirement for submission is accepted by the object
of said act. (Section 3).

36

Section 3(a) provides when sexual harassment is
committed in a work-related or employment
environment. On the other hand, sexual harassment in
an education or training environment is committed
under Section 3b of RA 7877.
5. KINDS.
2 types of sexual harassment:
5.01. QUID PRO QUO CASES.
- mentioned in the first clause of Section 3(a)(1) and
Section 3(b)
- The defendant in those cases, conditions employment
benefits, honors, awards, or privileges on sexual
favors. Sexual favors are elicited in return for
something else.
- is present whenever:
sexual favor is made as a condition in the

hiring or in the employment, re-employment or
continued employment of said individual, or in
granting
said
individual
favorable
compensation, terms, conditions, promotions,
or privileges
sexual favor is made a condition to the giving

of a passing grade, or the granting of honors
and scholarships or the payment of a stipend,
allowance or other benefits, privileges or
considerations.
whenever the refusal to grant sexual favor

would impair the employees right or
privileges under existing labor law.
5.02. HOSTILE ENVIRONMENT CASES.
- involve the allegation that employees or students
work or study in offensive or abusive environment
- Although a single act of the defendant may be
enough, generally, repeated incidents create a
stronger claim of hostile environment, with the
strength of the claim depending on the number of
incidents and the intensity of each incident. (King vs.
Board of Regents of University of Wisconsin System,
898 f. 2d 533, 537 [7th Cir. 1990]).
- covers the cases where the refusal to grant the
sexual favor results in limiting, segregating or
classifying the employee which in any way would
discriminate,
deprive
or
diminish
employment
opportunities or otherwise adversely affect said
employee.
a. Requisite of Hostile Environment Case.
1.) that he or she was subjected to sexual advances,
requests for sexual favors, or other verbal or physical
conduct of sexual nature,
2.) that this conduct was unwelcome, and
3.) that the conduct was sufficiently severe or
pervasive to alter the conditions of the victims
employment
and
create
an
abusive
working
environment. (Jordan v Clark)
The US SC believes that hostile environment can be
present even if the conduct did not seriously affect the
plaintiffs psychological well-being.
b. Standard of Conduct.
- the standard of a reasonable man that is used in
negligence case.
- Under this view, the environment is hostile if a
person of ordinary prudence would not have been
engaged in the allegedly harassing conduct.
6. SEXUAL HARASSMENT UNDER CIVIL SERVICE
RULES.
Civil Service Commission Resolution No. 01-0940
providing for Administrative Disciplinary Rules on
Sexual Harassment Cases provides a more detailed
enumeration of the forms of sexual harassment. The
Rules were issued pursuant to Section 11, Article II of
the 1987 Constitution, The Vienna Declaration and
Programme of Action of the World Conference on
Human Rights (June 1993), the Beijing Declaration and
Platform for Action of the Fourth World Conference on
Women (September 1995) and the express mandate of
Section 4 (a) of Republic Act No. 7877.
Notes in
The presence of sexual advances or solicitation of

sexual favors is not required under Civil Service Rules.
2nd and 3rd paragraph of Sec 3 contemplates hostile
environment situations which may not involve sexual
advances and solicitation of sexual favors. Hostile
environment may even be created through lucid
remarks, and use of objects with sexual underpinnings.
7. BASES OF CIVIL LIABILITY FOR SEXUAL
HARASSMENT
7.01. SEXUAL HARASSMENT UNDER ARTICLES 21
AND 26 OF THE NCC.
A civil action for damages based on tort may be
maintained under Articles 21 and 26 of the Civil Code
in both quid pro quo cases and hostile environment
cases. The defendant may be liable for damages under
Articles 21 and 26 if he or she is guilty of overt sexual
advances. Nevertheless, the action based on Articles
21 and 26 of the Civil Code is available even in hostile
environment cases that are, by strict interpretation,
not covered by Republic Act No. 7877.
7.02.
SEXUAL
HARASSMENT
AS
DISCRIMINATION.
The hostile environment case can also be maintained
on the theory that there is discrimination. A hostile
environment case is actionable under ART 135 of the
Labor Code. Moreover, the action may also be justified
under ART. 21 of the NCC because the act of the
defendant or the employer is in violation of the right of
the plaintiff under sec 1 of Art. XII of the Constitution.
7.03 CIVIL LIABILITY BASED ON DELICT.
RA. No. 7877 penalizes any person who is guilty of
sexual harassment. Tort liability may be in the form of
liability arising from delict. On the other hand, civil
liability for harassment under Magna Carta for Women
or RA9710 under its section 41.
CASES
DR. RICO S. JACUTIN vs. PEOPLE OF THE PHILIPPINES
Facts:
Sometime on or about 01 December 1995, in Cagayan
de Oro City the accused, a public officer, being then
the City Health Office, in relation to his official
functions and taking advantage of his position,
demand, solicit, request sexual favors from Ms. Juliet
Q. Yee, a young 22 year-old woman, single and fresh
graduate in Bachelor of Science in Nursing who was
seeking employment in the office of the accused.
Issue: Whether or not the petitioner cannot be
convicted of the crime of sexual harassment in view of
the inapplicability of Republic Act No. 7877.
Held: No. While the City Mayor had the exclusive
prerogative in appointing city personnel, it should
stand to reason, nevertheless, that a recommendation
from petitioner in the appointment of personnel in the
municipal health office could carry good weight.
Indeed, petitioner himself would appear to have
conveyed, by his words and actions, an impression
that he could facilitate Juliets employment. Indeed,
petitioner would not have been able to take undue
liberalities on the person of Juliet had it not been for
his high position in the City Health Office of Cagayan
de Oro City. WHEREFORE, the accused is guilty.
AEOLUS AUTOMOTIVE UNITED CORPORATION v. NLRC
Cortez the company nurse of petitioner corporation
claims that as early as her first year of employment
her Plant Manager, William Chua, already manifested a
special liking for her, so much that she was receiving
special treatment from him who would oftentimes
invite her for a date, which she would often refuse.
On many occasions, he would make sexual advances
touching her hands, putting his arms around her
shoulders, running his fingers on her arms and telling
her she looked beautiful. The special treatment and
sexual advances continued during her employment for
4 years but she never reciprocated his flirtations, until
finally, she noticed that his attitude towards her

37

changed. He made her understand that if she would
not give to his sexual advances he would cause her
termination from the service; and he made good his
threat when he started harassing her.
The gravamen of the offense in sexual harassment is
not the violation of the employee's sexuality but the
abuse of power by the employer. Any employee, male
or female, may rightfully cry "foul" provided the claim
is well substantiated. Strictly speaking, there is no
time period within which he or she is expected to
complain through the proper channels. The time to do
so
may
vary
depending
upon
the
needs,
circumstances, and more importantly, the emotional
threshold of the employee. Private respondent
admittedly allowed four (4) years to pass before finally
coming out with her employer's sexual impositions.
Not many women, especially in this country, are made
of the stuff that can endure the agony and trauma of a
public, even corporate, scandal. If petitioner
corporation had not issued the third memorandum that
terminated the services of private respondent, we
could only speculate how much longer she would keep
her silence. Moreover, few persons are privileged
indeed to transfer from one employer to another. The
dearth of quality employment has become a daily
"monster" roaming the streets that one may not be
expected to give up one's employment easily but to
hang on to it, so to speak, by all tolerable means.
Perhaps, to private respondent's mind, for as long as
she could outwit her employer's ploys she would
continue on her job and consider them as mere
occupational hazards. This uneasiness in her place of
work thrived in an atmosphere of tolerance for four (4)
years, and one could only imagine the prevailing
anxiety and resentment, if not bitterness, that beset
her all that time.
CHAPTER 10
Notes in
from the provision which uses the expressions criminal

action and criminal prosecution. The underlying
purpose of the principle under consideration is to allow
the citizen to enforce his rights in a private action
brought by him, regardless of the action of the State
attorney. It is true that in many of the cases referred
to in the provision cited, a criminal action is proper,
but it should be remembered that while the State is
the complainant in the criminal case, the injured
individual is the one most concerned because it is he
who has suffered directly. He should be permitted to
demand reparation for the wrong which peculiarly
affects him.
And Tolentino says:
The general rule is that when a
criminal action is instituted, the civil action for
recovery of civil liability arising from the offence
charged is impliedly instituted with the criminal action,
unless the offended party reserves his right to institute
separately. The present articles create an exception to
this rule when the offence is defamation, fraud or
physical injuries. In these cases, a civil action may be
filed independently of the criminal action, even if there
has been no reservation made by the injured party.
Justice Caguiao takes the opposite view that the
liability sought to be enforced by independent civil
actions granted under Arts. 32, 33, and 34 is not the
civil liability arising from the crime. The basis is said to
be tortious actions more of the nature of culpa aquilina
and, therefore, separate and distinct from the civil
liability arising from crime.
Under the present laws, a citizen who suffers damage
or injury though the wrongful act of another must rely
upon the action of the prosecuting attorney if the
offense is criminal. The proposed Civil Code lessens
(but does not abolish) this dependence of the
aggrieved party upon the criminal action. Here are
some illustrations: Articles 36, 28, 37, 33, 29, 30, and
38).
I.
INDEPENDENT CIVIL ACTION

include actions for damages for violation of civil and
political rights, defamation, fraud, physical injuries
and neglect of public officers.
Articles 32, 33 and 34 of the Chapter on Human
Relations of the NCC commonly provide for authority
to file independent civil actions. It should be noted
that independent civil actions are not peculiar to
Articles 32, 33 and 34 because there are special laws
that likewise recognize the right to initiate
independent civil actions. For example:
A. Article 135 of the Labor Code
recognizes independent civil action for
discrimination
B. Sec. 5 of the Anti - Sexual Harassment
Act of 1995 provides that nothing in
the provisions of the said Act shall
preclude the victim of the work,
education or training-related sexual
harassment from the institution a
separate and independent action for
damages and other affirmative relief
1.
Concept of Independent Civil Actions

There are two views on the basis of liability under
Articles 32, 33 and 34 of the NCC.
In Madeja v. Caro, the SC sustained the view
of the former Senator Tolentino that the civil action,
which the Civil Code provisions allow to be filed
(particularly Art. 33), is ex-delicto, that is, civil liability
arising from delict. The SC explained that:
1. The civil action for damages which Art.33
allows to be instituted is ex-delicto. This is manifest
ARTICLE 32: VIOLATION OF CIVIL AND

POLITICAL RIGHTS
Article 32 of the NCC provides for an independent civil
action for damages from violation of civil and political
rights.
1. Rationale
essential to the effective maintenance of
democracy.
to promote individualism among the citizens
(Justice Bocobo)
2. How Committed
normally involves intentional acts, the tort
violation of civil and political rights can also be
committed through negligence.
In Delfin Lim and Jikil Taha v. Francisco Ponce
De Leon, et. al. the SC ruled that good faith on
the part of the defendant does not necessarily
excuse such violation.
3. Persons Liable
directed against public officers or employees
and even private individuals.
A. Direct and Indirect Participation
The law provides that a person may be held
liable whether his participation is direct or
indirect.
B. Superior Officers
In Aberca v. Fabian Ver, the SC explained that with the
provisions of Art. 32, the principles of accountability
of public officials under the Constitution acquires
added meaning and assumes a larger dimension. No
longer may a superior official relax his vigilance or
abdicate his duty to supervise his subordinates, secure
in thought that he does not have to answer the
transgressions committed by the latter against the

38

constitutionally protected rights and liberties of the
citizen.
In Obra, et al. v. CA, et al., the plaintiffs were accused
of having been engaged in illegal mining. A letter was
sent to the Regional Director of the Bureau of Mines
and Geo-Sciences requesting the said director to stop
the alleged illegal mining activity that the same sent a
letter to the Regional Command of the Philippine
Constabulary requesting assistance in apprehending
the truck of the plaintiffs. The commanding general
indorsed the letter to a subordinate office. The
plaintiffs truck was apprehended. When sued for
damages, the commanding general alleged that it was
his ministerial duty to indorse the letter. However, the
SC rejected the argument stating that when the
general indorsed the letter, there could not have been
any other foreseeable consequence but the eventual
seizure of the truck. Furthermore, the SC explained
that under Art. 32, it is not the actor alone who is
liable but also any person who indirectly violated the
Constitutional right of the plaintiff.
C. Subordinate Officers.
The persons who actually conducted the illegal search
and seizure are liable under Art. 32. However, the SC
ruled in Delfin Lim and Jikil Taha v. Francisco Ponce De
Leon, et. al., that a subordinate officer who actually
impounded the personal property of the complainant
upon the orders of his superior officer is not liable
because he was reluctant to enforce the order; he was
led to believe that there was legal basis and authority
to impound the property and that he was faced with a
possible disciplinary action from his commander.
D. Judges
By express provision of Art. 32, the responsibility set
forth in the same provision is not demandable from a
judge unless his act or omission constitutes a violation
of the Penal Code or other penal statute.
4. STATE IMMUNITY NOT A DEFENSE.
applies only if the acts involved are acts done
by officers in the performance of official duties
within the ambit of their powers. Obviously,
officers do not act within the ambit of their
powers if they would violate the constitutional
rights of other persons.
5. SUSPENSION OF THE PRIVILEGE OF THE WRIT
OF HABEAS CORPUS
the suspension of the privilege of habeas
corpus does not destroy every persons right
and cause of action for damages for illegal
arrest and detention and other violations of his
constitutional right.
What is suspended is merely the right of the
individual to seek release from his detention
through the writ of habeas corpus as a speedy
means of obtaining his liberty. Consequently,
the suspension of the writ cannot be used as a
defense in cases involving Art. 32 of the NCC.
The rule is further strengthened under the
1987 Constitution.
6. EXAMPLES OF VIOLATIONS
A. Due Process and Freedom of Expression.
The actions of the respondents led to the
closure of a radio station in violation of
petitioners freedom of expression. Hence, the
respondents were made liable for damages.
(Newsounds Broadcasting Network, Inc. v.
Hon. Ceazar G. Dy)
It has been held repeatedly that a person who
deprives another of his office without giving
him a chance to defend himself is liable under
Art. 32 of the NCC.
B. Right Against Searches and Seizure.
CASE: ROGELIO ABRECA, et al. v. MAJ. GEN. FABIAN
VER, et al.
Facts:
Notes in
Sometime in the early 1980s, various

Intelligence units of the AFP known as Task Force
Makabansa (TFM) were ordered by respondents then
Maj. Gen. Fabian Ver to conduct pre-emptive strikes
against known communist-terrorist (CT) underground
houses in view of increasing reports about CT plans to
sow disturbances in Metro Manila. In compliance
thereof, the TFM raided several places, employing in
most cases defectively issued judicial search
warrants. During these raids, certain members of the
raiding TFM confiscated a number of purely personal
items belonging to the 20 petitioners. Petitioners were
arrested without proper arrest warrants issued by the
courts. For some period after their arrest, they were
arrested without denied visits of relatives and lawyers;
interrogated in violation of their rights to silence and
counsel, through threats, torture and other forms of
violence in order to obtain incriminatory information or
confessions and in order to punish them.
Plaintiffs then filed an action for damages
before the RTC of Quezon City against respondentsofficers of the AFP headed by Ver. Respondents, in
their motion to dismiss, claimed that (1) the writ of
habeas corpus was suspended, thus giving credence to
petitioners detention; (2) respondents were immune
from liability for acts done in the performance of their
official duties, and that (3) the complaint did not state
a cause of action against respondents.
On November 8, 1983, the RTC granted the
motion to dismiss the case. A motion to set aside the
order dismissing the complaint, and a supplemental
motion
for
reconsideration
were
filed
by
petitioners. On May 11, 1984, the trial court, without
acting on the motion to set aside the Order of Nov. 8,
1983, declared the finality of said Order against
petitioners. After their motion for reconsideration was
denied by the RTC, petitioners then filed the instant
petition for certiorari, on March 15, 1985, seeking to
annul and set aside the respondent courts resolutions
and order.
Issue:
Whether or not a superior officer, under the
notion of respondeat superior, is answerable for
damages jointly and severally with his subordinates, to
the person whose constitutional rights and liberties
have been violated.
Held:
The doctrine of respondeat superior is not
applicable in this case. It has been generally limited in
its application to principal and agent or to master and
servant relationships. No such relationship exist
superiors
of
the
military
and
their
subordinates. However, the decisive factor in this case
is the language of Art. 32, Civil Code; the law speaks
of an officer or employee or person directly or
indirectly responsible for the violation of the
constitutional rights and liberties of another. Thus, it
is not the actor alone who must answer for damages
under Art. 32; the person indirectly responsible has
also to answer for the damages or injury caused to the
aggrieved party. Art. 32 makes the persons who are
directly as well as indirectly responsible for the
transgression joint tortfeasors.
II. ARTICLE 33: DEFAMATION, FRAUD AND
PHYSICAL INJURIES
1.01. Defamation Defined
includes libel and slander, means the offense
injuring a persons character, fame or
reputation through false and malicious
statements.
A. Libel and Slander Under the RPC

39

-
Art. 355 Libel means by writings or similar

means
Art. 356 Threatening to publish and offer to
present such publication for a compensation
Art. 358 Slander
Art. 359 Slander by deed
B. Applicable to Article 33 of the NCC.
Concepts and requirements of defamation
under said Code are also used to determine
liability for damages under Art. 33 of the NCC.
1.02. Reason for Liability
brought about by the desire to protect the
reputation of every individual. It is as much a
constitutional right as the possession of life,
liberty or property.
A. Freedom of the Press.
every citizen of course has the right to enjoy
good name and reputation, but we do not
consider that the respondents, under the
circumstances of this case, had violated said
right or abused the freedom of the press. The
newspapers should be given such leeway and
tolerance as to enable them to courageously
and effectively perform their important role in
our democracy. In the preparation of stories,
press reporters and edition usually have to
race with their deadlines; and consistently with
good faith and reasonable care, they should
not be held to account, to a point if
suppression,
for
honest
mistakes
or
imperfection
in
the
choice
of
words.
(Quisumbing v. Lopez, et al)
1.03. Requisites for Liability
The ff. requisites must be present to be held liable for
defamatory imputations:
1. The imputation of a discreditable act
or condition to another;
2. publication of the imputation
3. identity of the person defamed;
4. existence of malice.
1.04. Imputation is defamatory
may be established by showing that the
statement is defamatory as a matter of law.
The test used by the SC in determining the
defamatory character of the words used is s
stated as follows:
A charge is sufficient if the words are
calculated to induce the hearers to
suppose and understand that the
person or persons against whom they
uttered were guilty of certain offense,
or are sufficient to impeach their
honesty, virtue, or reputation, or to
hold the person or persons up to public
ridicule. xxx
A. Standard if an Ordinary Reader.
the judge must consider the allegedly libelous
passages in the context of the entire article
and evaluate the words as they are commonly
understood.
In Alfredo T. Yuchengco v. The Manila
Chronicle Publishing Corp., et al., the trial
court found that the phrase Marcos crony
which was used against the complainant is
derogatory.
In Binay v. Secretary of Justice, an article
entitled ALYAS ERAP JR. was published April
15-21 issue of Pinoy Times Special Edition
regarding the alleged extravagant lifestyle of
the Binays and the assets that they acquired
while in public office. Paragraph 25 of the
article reads: Si Joanne Marie Bianca, 13 ang
sinasabing ampong anak ng mag Binay, ay
bumibili ng panty na nagkakahalaga ng P1,000
ang isa, anon sa isang writer ni Binay. Magarbo
ang pamumuhay ng batang ito dahil naspoiled
Notes in
umano ng kanyang ama. The SC ruled that

there is prima facie showing that paragraph 25
of the subject article is defamatory.
B. Community Standard
The law against defamation protects ones
interest in acquiring, retaining and enjoying a
reputation as good as ones character and
conduct warrant in the community and it is to
community standards - not personal or family
standards - that a court must refer in
evaluating a publication claimed to be
defamatory.
personal hurt or embarrassment or offense,
even if real, is not automatically equivalent to
defamation. The law against defamation
protects ones interest in acquiring, retaining
and enjoying a reputation as good as ones
character and conduct warrant in the
community and it is to community. (GMA
Network News, Inc. v. Bustos)
C. Exaggerations and Absurd Statements.
Sweeping, exaggerated, unreasonable and
absurd statements in the material will not by
themselves make the statements defamatory.
Words which are merely insulting are not
actionable as libel or slander per se, and mere
words of general abuse however opprobrious,
ill-natured, or vexations, whether written or
spoken, do not constitute a basis for an action
for defamation in the absence of an allegation
for special damages.
D. Forms of Language.
in any form
E. Material Taken as a Whole.
Alleged defamatory statements should be
taken in their entirety and the statements
should not be interpreted by taking the words
uttered by one out of the context and giving
them twisted meanings.
F. Error or Misstatement Not Necessarily
Libelous.
Slight unintentional errors will be excused. If
a writer in the course of temperate and
legitimate criticism falls into error as to some
detail, or draws an incorrect inference from the
facts before him and thus goes beyond the
limits of strict truth, such inaccuracies will not
cause judgment to go against him.
Nevertheless, even assuming that the
contents of the articles turned out to be false,
mere error, inaccuracy or even falsity alone
does not prove actual malice. Errors or
misstatements are inevitable in any scheme of
truly free expression and debate. Consistent
with good faith and reasonable care, the press
should not be held to account, to a point of
suppression,
for
honest
mistakes
or
imperfections in the choice of language. There
must be some room for misstatement of fact
as well as for misjudgment. xxx. (Villanueva
vs. PDI)
G. Allegation of Non-Performance of Obligation.
Mere assertion that a person failed or refused
to perform a contractual obligation does not, in
and of itself, injure the persons business
reputation or deprive him of public confidence.
H. Imputation of a Crime, Vice of Defect.
Art. 353 of the RPC states that defamation
may consists of imputation of a crime, or of a
vice or defect, real or imaginary, or any act,
omission, condition, status, or circumstance
tending to cause the dishonor, discredit, or
contempt of a natural or juridical person, or to
blacken the memory of one who is dead.
False attribution of robbery or malversation or
being a fugitive or wastrel is defamatory. The

40

imputation is likewise defamatory when the
respondent published an article calling the
complainant mandurugas, mag-ingat sa
panlilinlang, matagal na tayong niloloko,
mastermind sa paninirang puri, Maniac at
Magnanakaw ng Aso and other similar terms.
1.05. PUBLICATION
communication of the defamatory information
to third persons
Dissemination to a number of people is,
however, not required and communication to a
single individual is sufficient.
A. Must be seen by Third Party
In civil actions for damages, no liability will
result if the defamatory matter is not seen or
heard by anyone except the defendant and the
plaintiff.
sending of an unsealed libelous letter to the
offended party constitutes publication because
there is a reasonable probability that the
contents thereof, particularly the libelous
letter, could be read by a third person (People
v. Silvela and Magno v. People)
1.06. MALICE
to be considered malicious, the libelous
statement must be shown to have been written
or published with the knowledge that they are
false or in reckless disregard of whether they
are false or not. Reckless disregard of what is
false or not means that the author or publisher
entertains serious doubt as to the truth of the
publication, or that possesses a high degree of
awareness of their probable falsity.
A. Evidence of Malice
may be shown by extrinsic evidence that the
defendant bears a grudge against the offended
party, or that there is rivalry or ill feeling
between them (which existed at the date of
the publication of the defamatory imputation).
B. Source of News Report
In this connection, it should be noted that
while a journalist may be held criminally liable
for libel, he cannot be compelled to reveal the
source of the information given to him in
confidence unless a House or committee of
Congress determines that revealing the source
is demanded by the security of the State.
C. Kinds of Malice.
Malice in law is a presumption of law. It

dispenses with the proof of malice when words
that raise the presumption are shown to have
been uttered. It is also known as constructive
malice, legal malice or implied malice.
Malice in fact is a positive desire and

intention to annoy and injure. It may denote
that the defendant was actuated by ill will or
personal spite. It is also called express malice,
actual malice, real malice, true malice, or
particular malice.
1.07. Identification of the Defamed
In order to maintain a libel suit, it is essential
that the victim be identifiable although it is
not necessary that he be named. It is
sufficient if it is shown that the offended party
is the person meant or alluded to.
it must be shown that at least a third person
could identify him as the object of the libelous
publication.
A. Group Libel
declarations made about a large class of
people cannot be interpreted to advert to an
identified or identifiable individual. Absent
circumstances specifically pointing or alluding
to a particular member of a class, no member
of such class has a right of action without at
all impairing the equally demanding right of
Notes in
free speech and expression, as well as the

press, under the Bill of Rights.
B. Deceased
In this jurisdiction, the rule is that relatives of
the deceased can file an action for damage to
the reputation of the latter. Article 353
expressly
provides
that
defamatory
statements include those which tend to
blacken the memory of one who is dead.
C. Corporation
Art. 353 of the RPC expressly recognizes that
juridical person can be a victim of libel.
Hence, a corporation can be a complainant in
a libel case. The corporate can file a case if its
reputation as an entity was defamed. In
Filipinas Broadcasting Network, Inc. v. Ago
Medical and Educational Center-Bicol Christian
College of Medicine, the SC ruled that libel is
one
of
the
exceptional
cases
when
corporations can claim moral damages.
1.08. PERSONS LIABLE
Art. 360. Persons responsible. Any person who shall
publish, exhibit, or cause the publication or exhibition
of any defamation in writing or by similar means, shall
be responsible for the same.
The author or editor of a book or pamphlet, or the
editor or business manager of a daily newspaper,
magazine or serial publication, shall be responsible for
the defamations contained therein to the same extent
as if he were the author thereof. xxx
1.09. PROOF OF TRUTH.
In English and American law, proof of truth
may exculpate the defendant in a defamation
case. The rule in this jurisdiction is provided
for in Article 361 of the Revised Penal Code:
Art. 361. Proof of the truth. In every
criminal prosecution for libel, the truth
may be given in evidence to the court
and if it appears that the matter
charged as libelous is true, and,
moreover, that it was published with
good motives and for justifiable
ends,
the
defendants
shall
be
acquitted.
Proof of the truth of an imputation of
an act or omission not constituting a
crime shall not be admitted, unless the
imputation shall have been made
against Government employees with
respect to facts related to the
discharge of their official duties.
In such cases if the defendant proves
the truth of the imputation made by
him, he shall be acquitted.
It should likewise be noted that under Article
354 of the Revised Penal Code, every
defamatory imputation is presumed to be
malicious even if it be true.
1.10. DEFENSES.
A. Privileged Statements
include those which are absolutely or
conditionally privileged:
In
absolutely
privileged
communications, the imputation is not
actionable even if it is attended by
actual malice.
qualifiedly privileged communications

- may still be actionable if actual
malice is proven. When malice in fact
is proven, assertions and proofs that
the libelous articles are qualified
privileged communications are futile
since being qualifiedly privileged
communication merely prevents the

41
Notes in
presumption of malice from attaching

to a defamatory imputation.
- test: bona fides test or the test of
good faith
B. Absolutely Privileged Matters.
include statements made in official proceedings
of the legislature by members thereof
included are statements made in the course of
judicial proceedings but only if they are
pertinent or relevant to the case involved.
C. Qualified Privilege.
Provided in Art. 354 and 362
ART. 354. Requirement for publicity. Every
malicious, even if it be true, if no good
intention and justifiable motive for making it is
shown, except in the following cases:
1
A private communication made
by any person to another in the
performance of any legal, moral, or
social duty; and
2
A fair and true report, made in
good faith, without any comments or
remarks, of any judicial, legislative, or
other official proceedings which are not
of confidential nature, or of any
statement, report, or speech delivered
in said proceedings, or of any other act
performed by public officers in the
exercise of their functions.
either be his own or of the one to

whom it is made;
the communication is addressed to and
officer or a board, or superior, having
some interest or duty in the matter,
and who has the power to furnish the
protection sought; and
the statements in the communications
are made in good faith and without
malice.
Art.
362. Libelous remarks. Libelous

remarks or comments connected with
the matter privileged under the
provisions of Article 354, if made with
malice, shall not exempt the author
thereof nor the editor or managing
editor of a newspaper from criminal
liability.
They are known as qualifiedly privileged

communications, since they are merely
exceptions to the general rule that every
malicious even if true, if no good intention and
justifiable motive is shown. Hence, under the
exception, proof of actual malice is required in
order that a defamatory imputation may be
held actionable.
(1) Enumeration in Article 354 Not Exclusive.
Other qualifiedly privileged communications
include the following classes:
private communication made by any

person to another in the performance
of any legal, moral, or social duty;
a fair and true report, made in good

faith, without any comments or
remarks, of any judicial, legislative or
other official proceedings which are not
of
confidential
nature,
of
any
statement, report or speech delivered
in said proceedings, or of any
statement, report or speech delivered
in said proceedings, or of any act
performed by public officers in the
exercise of their functions;
fair commentaries on matters of public

concern.
(2) Private Communications.
Requirements under Art. 354:
the
person
who
made
the
communication had a legal, moral, or
social
duty
to
make
the
communication, or at least, had an
interest to protect, which interest may
D. Complaints Against Public Officials.

- qualifiedly privileged, filing is being done in the
performance of ones duty as a citizen
- such complaints should be addressed solely to some
official having jurisdiction to inquire into the charges,
or power to redress the grievance or has some duty to
perform or interest in connection therewith
E. Report to a Superior Officer.
- the privilege may be negated only by proof of malice;
the test in such a case is that of bona fides.
- the privilege is negated if the report is circulated to
other persons
F. Allegations in Pleadings.
- privileged as long as they are relevant or pertinent to
the issues
- the test to break through the protective barrier of an
absolutely privileged communication is not bona fides
but relevance
G. Publication and News Report of a Pleading.
1.11 PUBLIC OFFICERS AND PUBLIC FIGURES.
- that honest criticisms on the conduct of public
officials and public figures are insulated from libel
judgments
- fair commentaries on matters of public interest are
privileged and constitute a valid defense in an action
for libel or slander.
A. Fair Comments and Other Doctrines.
Doctrine of Fair Comment
fair commentaries on matters of public interest
are privileged and constitute a valid defense in
an action for libel or slander
B. in general every discreditable imputation publicly
made is deemed false, because every man is
presumed innocent until his guilt is judicially
proved, and every false imputation is deemed
malicious, nevertheless, when the discreditable
imputation is directed against a public person in
his public capacity, it is not necessarily actionable.
In order that such discreditable imputation to a
public official may be actionable, it must either be
a false allegation of fact or a comment based
on a false supposition.
C. Public Officers as Complainants/Plaintiffs.
Actual malice rule - that the charges made by the
petitioner were false but also that petitioner made
them with knowledge of their falsity or with reckless
regard of whether they are false or not.
D. Public Figure.
is any person who, by his accomplishments,
fame, made of living, or by adopting a
profession or calling which gives the public a
legitimate interest in his doings, his affairs and
his character, has become a public personage.
If a matter is a subject of public or general
interest, it cannot suddenly become less so
merely because a private individual is involved
to because in some sense the individual did not
voluntarily choose to become involved. The
articles about a private individual may deal
with matters of public interest; these are
matters about which the public has the right to
be informed, taking into account the very
character of the matter involved.
(1) Kinds of Public Figures

42

3 types of public figures:
(1) involuntary public figures - persons who become
public figures through no purposeful action of their
own
(2) all-purpose public figures - persons who attain a
status according to which they assumed roles of
special prominence in the affairs of society. They are
public figures for all purposes because they occupy
positions of such pervasive power and influence.
(3) limited-purpose public figures - are persons who
have thrust themselves to the forefront of particular
public controversies in order to influence the resolution
of the issues involved. In either event, they invite
attention and comment.
(2) Geographical Limit
- A celebrity may be considered a public figure even if
the sphere of his renown is within a limited geography.
D. Private Parties Who are Not Public Figures.
- There is no qualified privilege for defamatory remarks
against private individuals who are not public figures.
Malice in fact need not be proved.
E. Candidates for Public Office.
- The qualified privilege applies against candidates for
public office (New York Times Co. v. Sullivan)
1.12 LIBERAL TREATMENT OF LIBEL.
In SC Memorandum Circular
No. 08-2008 dated
January 25, 2008, the Court clarified the liberal policy
in the imposition of penalties in libel cases. The circular
states:
xxx
All courts and judges concerned should henceforth
take note of the foregoing rule of preference set by the
Supreme Court on the matter of the imposition of
penalties for the crime of libel bearing in mind the
following principles:
1. This Administrative Circular does not remove
imprisonment as an alternative penalty for the
crime libel under Article 355 of the Revised Penal
Code;
2. The Judges concerned may, in the exercise of
sound discretion, and taking into consideration the
peculiar circumstances of each case, determine
whether the imposition of a fine alone would best
serve the interests of justice or whether forbearing
to impose imprisonment would depreciate the
seriousness of the offense, work violence on the
social order, or otherwise be contrary to the
imperative of justice;
3. Should only a fine be imposed and the accused be
unable to pay the fine, there is no legal obstacle to
the application of the Revised Penal Code provision
on subsidiary imprisonment.
The Court Administrator shall cause the immediate
dissemination of this Administrative Circular to all
courts and judges concerned.
1.13. DAMAGES.
- law implies damages if the publication or broadcast is
libelous per se. Neither in such a case is the plaintiff
required to introduce evidence of actual damages as a
condition precedent to the recovery of some damages.
(Filipinas Broadcasting Networks, Inc. v. Ago Medical
and Educational Center-Bicol, et al.,)
A. Mitigation.
evidence of an honest mistake or the want of
character or reputation of the party libeled
goes only in mitigation of damages. With
respect to evidence if honest mistake, the
same may, in fact, exculpate the defendant
because it may be establish lack of malice. On
the other hand, the NCC and the RPC does not
provide that want of character or reputation
may mitigate the damages to be awarded to
the plaintiff. However, it is also acceptable to
reduce the amount of moral damages to be
awarded on account of such proof.
Notes in
CASES:
MVRS PUBLICATIONS, INC., et al. v. ISLAMIC
DAWAH COUNCIL OF THE PHILIPPINES, INC., et
al.
ISLAMIC DAWAH COUNCIL OF THE PHILIPPINES, INC.,
a local federation of more than seventy (70) Muslim
religious organizations, and individual
Muslims
ABDULRAHMAN R.T. LINZAG, IBRAHIM F.P. ARCILLA,
ABDUL RASHID DE GUZMAN, AL-FARED DA SILVA and
IBRAHIM B.A., filed in the regional trial court of Manila
a complaint for damages in their own behalf and as a
class suit in behalf of the Muslim members nationwide
against MVRS PUBLICATIONS, INC., MARS C.
LACONSAY, MYLA C. AGUJA and AGUSTINO G.
BINEGAS, JR., arising from an article published in the
1 August 1992 issue of Bulgar, a daily tabloid. The
article reads:
ALAM BA NINYO?
Na ang mga baboy at kahit anong uri ng hayop sa
Mindanao ay hindi kinakain ng mga Muslim?
Para sa kanila ang mga ito ay isang sagradong bagay.
Hindi nila ito kailangang kainin kahit na sila pa ay
magutom at mawalan ng ulam sa tuwing sila ay
kakain. Ginagawa nila itong Diyos at sinasamba pa nila
ito sa tuwing araw ng kanilang pangingilin lalung-lalo
na sa araw na tinatawag nilang Ramadan.
The complaint alleged that the libelous statement was
insulting and damaging to the Muslims; that these
words alluding to the pig as the God of the Muslims
was not only published out of sheer ignorance but with
intent to hurt the feelings, cast insult and disparage
the Muslims and Islam, as a religion in this country, in
violation of law, public policy, good morals and human
relations; that on account of these libelous words
Bulgar insulted not only the Muslims in the Philippines
but the entire Muslim world, especially every Muslim
individual in non-Muslim countries.
MVRS PUBLICATIONS, INC., and AGUSTINO G.
BINEGAS, JR., in their defense, contended that the
article did not mention respondents as the object of
the article and therefore were not entitled to damages;
and, that the article was merely an expression of belief
or opinion and was published without malice nor
intention to cause damage, prejudice or injury to
Muslims.
[The trial court dismissed the complaint holding that
the plaintiffs failed to establish their cause of action
since the persons allegedly defamed by the article
were not specifically identified. The Court of Appeals
reversed the decision of the trial court. ]
Hence, the instant petition for review assailing the
findings of the appellate court (a) on the existence of
the elements of libel, (b) the right of respondents to
institute the class suit, and, (c) the liability of
petitioners for moral damages, exemplary damages,
attorneys fees and costs of suit.
Ruling: In the present case, there was no fairly
identifiable person who was allegedly injured by the
Bulgar article. Since the persons allegedly defamed
could not be identifiable, private respondents have no
individual causes of action; hence, they cannot sue for
a class allegedly disparaged. Private respondents must
have a cause of action in common with the class to
which they belong to in order for the case to prosper.
An individual Muslim has a reputation that is personal,
separate and distinct in the community. Each Muslim,
as part of the larger Muslim community in the
Philippines of over five million people belongs to a
different trade and profession; each has a varying
interest and a divergent political and religious view
some may be conservative, others liberal. A Muslim
may find the article dishonarable, even blasphemous
others may find it as an opportunity to strengthen their
faith and educate the non-believers and the infidels.
There is no injury to the reputation of the individual

43

Muslims who constitute this community that can give
rise to an action for group libel. Each reputation is
personal in character to every person. Together, the
Muslims do not have a single common reputation that
will give them a common or general interest in the
subject matter of the controversy.
ARTURO BORJAL v. COURT OF APPEAL
Facts: A civil action for damages based on libel was
filed before the court against Borjal and Soliven for
writing and publishing articles that are allegedly
derogatory and offensive against Francisco Wenceslao,
attacking among others the solicitation letters he send
to support a conference to be launch concerning
resolving matters on transportation crisis that is
tainted with anomalous activities. Wenceslao however
was never named in any of the articles nor was the
conference he was organizing. The lower court ordered
petitioners to indemnify the private respondent for
damages which was affirmed by the Court of Appeals.
A petition for review was filed before the SC
contending that private respondent was not sufficiently
identified to be the subject of the published articles.
Issue: Whether or not there are sufficient grounds to
constitute guilt of petitioners for libel.
Held: In order to maintain a libel suit, it is essential
that the victim be identifiable although it is not
necessary that he be named. It is also not sufficient
that the offended party recognized himself as the
person attacked or defamed, but it must be shown that
at least a third person could identify him as the object
of the libelous publication. These requisites have not
been complied with in the case at bar. The element of
identifiability was not met since it was Wenceslaso who
revealed he was the organizer of said conference and
had he not done so the public would not have known.
The concept of privileged communications is implicit in
the freedom of the press and that privileged
communications must be protective of public
opinion. Fair commentaries on matters of public
interest are privileged and constitute a valid defense in
an action for libel or slander. The doctrine of fair
comment means that while in general every
discreditable imputation publicly made is deemed false,
because every man is presumed innocent until his guilt
is judicially proved, and every false imputation is
deemed
malicious,
nevertheless,
when
the
discreditable imputation is directed against a public
person in his public capacity, it is not necessarily
actionable. In order that such discreditable imputation
to a public official may be actionable, it must either be
a false allegation of fact or a comment based on a false
supposition. If the comment is an expression of
opinion, based on established facts, then it is
immaterial that the opinion happens to be mistaken,
as long as it might reasonably be inferred from the
facts.
The questioned article dealt with matters of public
interest as the declared objective of the conference,
the composition of its members and participants, and
the manner by which it was intended to be funded no
doubt lend to its activities as being genuinely imbued
with public interest. Respondent is also deemed to be a
public figure and even otherwise is involved in a public
issue. The court held that freedom of expression is
constitutionally guaranteed and protected with the
reminder among media members to practice highest
ethical standards in the exercise thereof.
2. Fraud
2.01. Elements of Cause of Action
Notes in
i.
The defendant must have made false

representation to the plaintiff;
ii.
The representation must be one of
fact;
iii.
The defendant must know that the
representation is false or be reckless
about whether it is false;
iv.
The defendant must have acted on the
false representation should be acted
on; and
v.
The plaintiff must have suffered
damage as a result of acting on the
representation.
- With respect to the requirement of
knowledge, it is enough that said defendant
has no sufficient basis of information to
make representation scienter
2.02. What constitutes false representation
- not confined to words or positive assertions; it may
consist as well of deeds, acts or artifices of a nature
calculated to mislead another and thereby to allow the
defendant to obtain undue advantage over them
a. Half-truths
- such a partial and fragmentary statement of
fact, as that the withholding of that which is
not stated makes that which is stated
absolutely false
2.03. When fraud is present
a. knows or believes that the matter is not as
he represents it to be;
b. does not have the confidence in the
accuracy of his representation that he states or
implies;
c. knows that he does not have the basis for
his representation that he states or implies
2.04. Representation must be of fact
- 2nd requisite removes representation of
matters of law from the ambit of tort of deceit
a. Opinion generally not actionable
- a mere expression of opinion does not signify
fraud, unless made by an expert and the other
party has relied on the formers special
knowledge (Art. 1341)
2.05. Cases Covered
- estafa under the RPC
- estafa under the Trust Receipts Law
- misrepresentations made by sellers and
manufacturers
CASE: Silva vs. Peralta
Facts:
Issue:
Ruling:
3. Physical Injuries
- independent civil action of physical injury includes
battery intentional infliction of harmful or offensive
bodily contact; offensive if it offends a persons sense
of dignity or even if it is intended only as a joke or
compliment
a. Cases When Death Result included
under Art. 33
3.01. Effect of Reckless Imprudence
- physical injuries do not include cases where
the crime committed is reckless imprudence
resulting in homicide, they are included in Art.
2176
III. Art. 34: Neglect of Duty
- when a member of a city or municipal police force
refuses or fails to render aid or protection to any
person in case of danger to life or property, such peace
officer shall be primarily liable for damages and the
city or municipality shall be subsidiarily responsible
therefor
- the civil action shall be independent of any criminal
proceedings and a preponderance of evidence shall
suffice to support such action

44
Notes in
Purpose:
To afford remedy against police officers who

connive with bad elements, are afraid of them
or are simply indifferent to duty.
Subsidiary liability of city/municipality is

imposed so that they will exercise great care in
selecting conscientious and duly qualified
policeman and exercise supervision over the,
in the performance of their duties as peace
officers.

45

Torts and Damages Notes

Încărcat de

Informații document

Drepturi de autor

Formate disponibile

Partajați acest document

Partajați sau inserați document

Opțiuni de partajare

Vi se pare util acest document?

Este necorespunzător acest conținut?

Drepturi de autor:

Formate disponibile

Torts and Damages Notes

Încărcat de

Drepturi de autor:

Formate disponibile

Crescat scientia Vita excolatur

TORTS AND DAMAGES (Aquino)

Art. 21. Any person who willfully causes loss or

| Acac | Batocail | Closas | Daming | Emnace | Flor | Maandig | Tropel | Quicoy |

Crescat scientia Vita excolatur

TORTS AND DAMAGES (Aquino)

the penalty of arresto mayor in its medium and

General Duty of Care

The defendant always owes a general duty of

The obligation based on quasi delict must also have

Vinculum Juris Juridical element of obligations and

| Acac | Batocail | Closas | Daming | Emnace | Flor | Maandig | Tropel | Quicoy |

Crescat scientia Vita excolatur

TORTS AND DAMAGES (Aquino)

Some crimes (like

Proof of the fault

The guilt of the

Negligence is direct, substantive and

Negligence is merely incidental to the performance of

This is a complete and proper

This is not a complete and proper defense in the

There is presumption of negligence as long as it can be

| Acac | Batocail | Closas | Daming | Emnace | Flor | Maandig | Tropel | Quicoy |

Crescat scientia Vita excolatur

Forseeablility is the fundamental test of

TORTS AND DAMAGES (Aquino)

the law desires to protect, and maybe called

A driver is required to exercise more prudence

| Acac | Batocail | Closas | Daming | Emnace | Flor | Maandig | Tropel | Quicoy |

Crescat scientia Vita excolatur

owner of the premises cannot be heard to say

STANDARD OF CONDUCT: GOOD FATHER OF A

A child under nine years of age must be

TORTS AND DAMAGES (Aquino)

mechanical engineer); he was also employed as a

| Acac | Batocail | Closas | Daming | Emnace | Flor | Maandig | Tropel | Quicoy |

Crescat scientia Vita excolatur

Thus, a standard of conduct for a blind person

Roberts v. State of Louisiana

Discussion. Because the blind operator, Burson, had

TORTS AND DAMAGES (Aquino)

Philippine Motors Corporation and had a conference

| Acac | Batocail | Closas | Daming | Emnace | Flor | Maandig | Tropel | Quicoy |

Crescat scientia Vita excolatur

TORTS AND DAMAGES (Aquino)

Standards are the legal norms that are being

OTHER FACTORS TO CONSIDER IN DETERMINING

VIOLATION OF STATUES AND ORDINACNES

The generally accepted view in the Philippines

***In some cases, however, proof of violation of

Statutes may also provide specific rules of

| Acac | Batocail | Closas | Daming | Emnace | Flor | Maandig | Tropel | Quicoy |

Crescat scientia Vita excolatur

National Building Code and Fire Code of the

TORTS AND DAMAGES (Aquino)

Petitioner criticizes the lower courts reliance on the

Extraordinary diligence common carriers

1. Whether the ruling in Mecenas v. Court of Appeals,

No. The contention is without merit.

GROSS NEGLIGENCE there is want of even slight

Adherence to the Mecenas case is dictated by this

| Acac | Batocail | Closas | Daming | Emnace | Flor | Maandig | Tropel | Quicoy |

Crescat scientia Vita excolatur

The party invoking a presumption must still