Torts and Damages Review

TORTS & DAMAGES
Victor Kenner S. Galang
TORTS AND DAMAGES

By: Victor Kenner S. Galang
REMINDERS:
1. Study Article 2180 in relation to the modifications provided by the Family Code (see the
commentaries of Aquino for discussion) for Vicarious Liability of an employer with regards
to the act of the employee. Relate this to the case of Caravan Travel Tours concerning the
Registered Owner Rule.
2. Be mindful of the prescriptive period for Quasi-delict (whole chapter of QD under the Civil
Code).
3. For the answers on the questions provided during your activity, please see the rulings on the
following cases:
a. Nikko Hotel Manila Garden v. Reyes, G.R. No. 154259, [February 28, 2005], 492 PHIL
615-630 (Article 19)
b. Ilocos Norte Electric Co. v. Court of Appeals, G.R. No. 53401, [November 6, 1989], 258-
A PHIL 565-583 (Exception to the Assumption of Risk)
c. Real v. Belo, G.R. No. 146224, [January 26, 2007], 542 PHIL 109-123 (Fortuitous event)
II. PRELIMINARY CONSIDERATIONS
a. TORTS & QUASI DELICTS
Tort - consists in the violation of a right given or the omission of a duty imposed by
law. Simply stated, tort is a breach of a legal duty. (Naguiat v. National Labor Relations
Commission, G.R. No. 116123, [March 13, 1997], 336 PHIL 545-565)
• The New Civil Code as enacted and the Report of the Code Commission reveal
an evident intent to adopt the common law concept of tort which covers
intentional and unintentional common law torts in the New Civil Code.
(Aquino, pg. 6) Quasi-delict, known in Spanish legal treatises as culpa
aquiliana, is a civil law concept while torts is an Anglo-American or common
law concept. Torts is much broader than culpa aquiliana because it includes
not only negligence, but intentional criminal acts as well such as assault and
battery, false imprisonment and deceit.
b. SOURCE OF AN OBLIGATION
ARTICLE 1156. An obligation is a juridical necessity to give, to do or not to do.
ARTICLE 1157. Obligations arise from:

(1) Law;
(2) Contracts;
(3) Quasi-contracts;
(4) Acts or omissions punished by law; and
(5) Quasi-delicts. (Article 2176)
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If defendant — appellant is liable at all, its obligations must arise from any of the four
sources of obligations, namely, law, contract or quasi-contract, crime, or negligence.
(Sagrada Orden de Predicadores del Santisimo Rosario de Filipinas v. National Coconut Corp.,
G.R. No. L-3756, [June 30, 1952], 91 PHIL 503-510)
c. REQUISITES OF AN OBLIGATION
• An active subject who has the power to demand a prestations; (Tortfeasor)
• A passive subject who is obliged; (Victim)
• An object or prestations constituting of an activity which must be observed

by the debtor (general duty of care owed to the whole world. The defendant
always owes a general duty of care to the plaintiff as an imposition of society.
It includes a general duty to act in a such a way as to not injure others); and
• A vinculum juris between the active and passive subject because of which the
debtor is bound to the creditor and obliged to fulfill the desired prestation.
(The intentional or negligent act of the defendant). Note however in strict
liability cases, the vinculum juris is not the negligent or willful act of a person
but the law.
d. CAUSE OF ACTION
SECTION 1 - Every ordinary civil action must be based on a cause of action. (n)
SECTION 2. Cause of Action. — A cause of action is the act or omission by which a

party violates a right of another. (n)
• A cause of action arises when that should have been done is not done, or that
which should not have been done is done." (Anchor Savings Bank v. Furigay, G.R.
No. 191178).
• Although the first two elements may exist, a cause of action arises only upon
occurrence of the third (last) element, giving the plaintiff the right to maintain and
action in court for recovery of damages and other appropriate relief (Turner v
Lorenzo Shipping Corporation).
e. Article 2176 is not an all-encompassing enumeration of all actionable wrongs which

can give rise to the liability for damages. Under the Civil Code, acts done in
violation of Articles 19, 20, and 21 will also give rise to damages.
Article 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.
Article 20. Every person who, contrary to law, willfully or negligently causes damage
to another, shall indemnify the latter for the same.
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Article 21. Any person who willfully causes loss or injury to another in a manner that
is contrary to morals, good customs, or public policy shall compensate the latter for
the damage.
Source of liability: LAW
PRINCIPLE OF ABUSE OF RIGHTS AND THE REMEDIES (ARTICLE 19)
• It sets certain standards which must be observed not only in the exercise of one's
rights, but also in the performance of one's duties. When a right is exercised in a
manner which does not conform with the norms enshrined in Article 19 and
results in damage to another, a legal wrong is thereby committed for which the
wrongdoer must be held responsible.
• But while Article 19 lays down a rule of conduct for the government of human
relations and for the maintenance of social order, it does not provide a remedy for
its violation. Generally, an action for damages under either Article 20 or Article
21 would then be proper."
• Article 20 which applies to both willful and negligent acts that are done contrary
to law. On the other hand, Article 21 applies only to willful acts done contra bonos
mores.
• Article 19 is the general rule which governs the conduct of human relations. By
itself, it is not the basis of an actionable tort. Article 19 describes the degree of care
required so that an actionable tort may arise when it is alleged together with
Article 20 or Article 21.
• Article 20 concerns violations of existing law as basis for an injury. It allows
recovery should the act have been willful or negligent.
• Article 21 concerns injuries that may be caused by acts which are not necessarily
proscribed by law. This article requires that the act be willful, that is, that there
was an intention to do the act and a desire to achieve the outcome. In cases under
Article 21, the legal issues revolve around whether such outcome should be
considered a legal injury on the part of the plaintiff or whether the commission of
the act was done in violation of the standards of care required in Article 19.
• Article 2176 covers situations where an injury happens through an act or omission
of the defendant. When it involves a positive act, the intention to commit the
outcome is irrelevant. The act itself must not be a breach of an existing law or a
pre-existing contractual obligation. What will be considered is whether there is
"fault or negligence" attending the commission of the act which necessarily leads
to the outcome considered as injurious by the plaintiff. The required degree of
diligence will then be assessed in relation to the circumstances of each and every
case.
Thus, with respect to negligent acts or omissions, it should therefore be

discerned that Article 20 of the Civil Code concerns "violations of existing law
as basis for an injury," whereas Article 2176 applies when the negligent act
causing damage to another does not constitute "a breach of an existing law or a
pre-existing contractual obligation."
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Thus, as the claimed negligent act of petitioner was not premised on the breach of any
law, and not to mention the incontestable fact that no pre-existing contractual relation
was averred to exist between the parties, Article 2176 — instead of Articles 19, 20 and
21 — of the Civil Code should govern. (St. Martin Polyclinic, Inc. v. LWV Construction
Corp., G.R. No. 217426, [December 4, 2017])
CONTRA BONUS MORES
In the general scheme of the Philippine legal system envisioned by the Commission
responsible for drafting the New Civil Code, intentional and malicious acts. with
certain exceptions, are to. be governed by the Revised Penal Code while negligent acts
or omissions are to be covered by Article 2176 of the Civil Code. In between these
opposite spectrums are injurious acts which, in the absence of Article 21, would have
been beyond redress. Thus, Article 21 fills that vacuum. It is even postulated that
together with Articles 19 and 20 of the Civil Code, Article 21 has greatly broadened
the scope of the law on civil wrongs; it has become much more supplementary and
adaptable than the Anglo-American law on torts.
The existing rule is that a breach of promise to marry per se is not an actionable wrong
The history of breach of promise suits in the United States and in England has shown
that no other action lends itself more readily to abuse by designing women and
unscrupulous men. It is this experience which has led to the abolition of rights of
action in the so-called Heart Balm suits in many of the American states. This
notwithstanding, the said Code contains a provision, Article 21, which is designed to
expand the concept of torts or quasi-delict in this jurisdiction by granting adequate
legal remedy for the untold number of moral wrongs which is impossible for human
foresight to specifically enumerate and punish in the statute books.
In the light of the above laudable purpose of Article 21, We are of the opinion, and so
hold, that where a man's promise to marry is in fact the proximate cause of the
acceptance of his love by a woman and his representation to fulfill that promise
thereafter becomes the proximate cause of the giving of herself unto him in a sexual
congress, proof that he had, in reality, no intention of marrying her and that the
promise was only a subtle scheme or deceptive device to entice or inveigle her to
accept him and to obtain her consent to the sexual act, could justify the award of
damages pursuant to Article 21 not because of such promise to marry but because of
the fraud and deceit behind it and the willful injury to her honor and reputation which
followed thereafter. It is essential, however, that such injury should have been
committed in a manner contrary to morals, good customs or public policy. (Gashem
Shookat Baksh v. Court of Appeals, G.R. No. 97336, [February 19, 1993])
III. 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
pre-existing contractual relation between the parties, is called a quasi-delict and is
governed by the provisions of this Chapter.
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• Includes intentional acts; the use of the word “fault” in the provision reveals the
intention and that intentional Torts would not have any source as an obligation (in line
with the ruling of the SC in the case of Makati Stock Exchange vs Campos that the list in
Article 1157 of the Civil Code is exclusive);
A. REQUISITES
1. There must be an act or omission;
2. Such act or omission causes damage to another (damnum et injuria);
• The word "damage" is used in two concepts: the "harm" done and "reparation" for
the harm done. And with respect to "harm" it is plain that it includes both injuries
to person and property since "harm" is not limited to personal but also to property
injuries.
• There is a material distinction between damages and injury. Injury is the illegal
invasion of a legal right; damage is the loss, hurt, or harm which results from the
injury, and damages are the recompense or compensation awarded for the damage
suffered. Thus, there can be damage without injury in those instances in which the
loss or harm was not the result of a violation of a legal duty. These situations are
often called damnum absque injuria. (Spouses Custodio v. Court of Appeals, G.R. No.
116100, [February 9, 1996], 323 PHIL 575-589)
• The concept of quasi-delict enunciated in Article 2176 of the New Civil Code is so
broad that it includes not only injuries to persons but also damage to property. It
makes no distinction between "damage to persons" on the one hand and "damage
to property" on the other. The word "damage" is used in two concepts: the "harm"
done and "reparation" for the harm done. And with respect to "harm" it is plain
that it includes both injuries to person and property since "harm" is not limited to
personal but also to property injuries. (Cinco v. Canonoy, G.R. No. L-33171, [May 31,
1979], 179 PHIL 297-306)
3. Such act or commission is caused by fault or negligence; and
• Willful may refer to the intention to do the act and the desire to achieve the
outcome which is considered by the plaintiff in tort action as injurious. Negligence
may refer to a situation where the act was consciously done but without intending
the result which the plaintiff considers as injurious.
4. There must be no pre-existing contractual relation between the parties (Chan, Jr. v.
Iglesia ni Cristo Inc., G.R. No. 160283, [October 14, 2005], 509 PHIL 753-764)
• Existence of a contractual relation
General rule – there must be no pre-existing contractual relationship between the

parties. Because the vinculum juris is the act itself. Otherwise, the cause of action
would be for a culpa contractual.
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Exception - a liability for tort may arise even under a contract, where tort is that
which breaches the contract. Stated differently, when an act which constitutes a
breach of contract would have itself constituted the source of a quasi-delictual
liability, the contract can be said to have been breached by tort, thereby allowing
the rules on tort to apply.
It bears reiterating that the subject card would not have been confiscated and cut
had respondent talked to petitioner's representative and identified himself as the
genuine cardholder. It is thus safe to conclude that there was no negligence on the
part of petitioner and that, therefore, it cannot be held liable to respondent for
damages. (American Express International, Inc. v. Cordero, G.R. No. 138550,
[October 14, 2005], 509 PHIL 619-628)
TEST: Where, without a pre-existing contract between two parties, an act or

omission can nonetheless amount to an actionable tort by itself, the fact that the
parties are contractually bound is no bar to the application of quasi-delict
provisions to the case (Aquino, p. 32).
B. Culpa Contractual
In culpa contractual, upon which the action of petitioner rests as being the subrogee of
Concepcion Industries, Inc., the mere proof of the existence of the contract and the failure
of its compliance justify, prima facie, a corresponding right of relief. The law, recognizing
the obligatory force of contracts, will not permit a party to be set free from liability for any
kind of misperformance of the contractual undertaking or a contravention of the tenor
thereof. (FGU Insurance Corp. v. G.P. Sarmiento Trucking Corp., G.R. No. 141910, [August 6,
2002], 435 PHIL 333-345)
Quasi delict, also known as culpa aquiliana or culpa extra contractual, has as its source
the negligence of the tortfeasor. The second, breach of contract or culpa contractual, is
premised upon the negligence in the performance of a contractual obligation.
Consequently, in quasi-delict, the negligence or fault should be clearly established
because it is the basis of the action, whereas in breach of contract, the action can be
prosecuted merely by proving the existence of the contract and the fact that the obligor,
in this case the common carrier, failed to transport his passenger safely to his destination.
In case of death or injuries to passengers, Art. 1756 of the Civil Code provides that
common carriers are presumed to have been at fault or to have acted negligently unless
they prove that they observed extraordinary diligence as defined in Arts. 1733 and 1755
of the Code. This provision necessarily shifts to the common carrier the burden of proof.
(Calalas v. Court of Appeals, G.R. No. 122039, [May 31, 2000], 388 PHIL 146-155)
C. Culpa Criminal
The jural concept of a quasi-delict is that of an independent source of obligation "not

arising from the act or omission complained, as a felony."
Article 2176, where it refers to "fault or negligence," covers not only acts "not punishable
by law" but also acts criminal in character, whether intentional and voluntary or negligent.
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Consequently, a separate civil action lies against the offender in a criminal act, whether or
not he is criminally prosecuted and found guilty or acquitted, provided that the offended
party is not allowed, if he is actually charged also criminally, to recover damages on both
scores, and would be entitled in such eventuality only to the bigger award of the two,
assuming the awards made in the two cases vary. In other words, the extinction of civil
liability referred to in Par. (e) of Section 3, Rule 111, refers exclusively to civil liability
founded on Article 100 of the Revised Penal Code, whereas the civil liability for the same
act considered as a quasi-delict only and not as a crime is not estinguished even by a
declaration in the criminal case that the criminal act charged has not happened or has not
been committed by the accused. Briefly stated, we here hold, in reiteration of Garcia, that
culpa aquiliana includes voluntary and negligent acts which may be punishable by law.
It results, therefore, that the acquittal of Reginal Hill in the criminal case has not
extinguished his liability for quasi-delict, hence that acquittal is not a bar to the instant
action against him. (Elcano v. Hill, G.R. No. L-24803, [May 26, 1977], 167 PHIL 462-475)
The scope of Article 2176 is not limited to acts or omissions resulting from negligence.
“Article 2176, where it refers to "fault or negligence," covers not only acts "not punishable
by law" but also acts criminal in character, whether intentional and voluntary or negligent.
Consequently, a separate civil action lies against the offender in a criminal act, whether or
not he is criminally prosecuted and found guilty or acquitted, provided that the offended
party is not allowed, if he is actually charged also criminally, to recover damages on both
scores, and would be entitled in such eventuality only to the bigger award of the two,
assuming the awards made in the two cases vary. In other words, the extinction of civil
liability referred to in Par. (e) of Section 3, Rule 111, refers exclusively to civil liability
founded on Article 100 of the Revised Penal Code, whereas the civil liability for the same
act considered as quasi-delict only and not as a crime is not extinguished even by a
declaration in the criminal case that the criminal act charged has not happened or has not
been committed by the accused. Briefly stated, We here hold, in reiteration of Garcia, that
culpa aquiliana includes voluntary and negligent acts which may be punishable by law."
The civil action filed by respondents was not derived from the criminal liability of Pajarillo
in the criminal case but one based on culpa aquiliana or quasi-delict which is separate and
distinct from the civil liability arising from crime. 18 The source of the obligation sought
to be enforced in the civil case is a quasi-delict not an act or omission punishable by law.
Although the judgment in the criminal case finding Pajarillo guilty of Homicide is already
final and executory, such judgment has no relevance or importance to this case. 21 It
would have been entirely different if respondents' cause of action was for damages arising
from a delict, in which case the CA is correct in finding Safeguard to be only subsidiary
liable pursuant to Article 103 of the Revised Penal Code. (Safeguard Security Agency, Inc. v.
Tangco, G.R. No. 165732, [December 14, 2006], 540 PHIL 86-111)
In other words, if an accused is acquitted based on reasonable doubt on his guilt, his civil
liability arising from the crime may be proved by preponderance of evidence only.
However, if an accused is acquitted on the basis that he was not the author of the act or
omission complained of (or that there is declaration in a final judgment that the fact from
which the civil might arise did not exist), said acquittal closes the door to civil liability
based on the crime or ex delicto. In this second instance, there being no crime or delict to
speak of, civil liability based thereon or ex delicto is not possible. In this case, a civil action,
if any, may be instituted on grounds other than the delict complained of. As regards civil
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liability arising from quasi-delict or culpa aquiliana, same will not be extinguished by an
acquittal, whether it be on ground of reasonable doubt or that accused was not the author
of the act or omission complained of (or that there is declaration in a final judgment that
the fact from which the civil liability might arise did not exist). The responsibility arising
from fault or negligence in a quasi-delict is entirely separate and distinct from the civil
liability arising from negligence under the Penal Code. 36 An acquittal or conviction in
the criminal case is entirely irrelevant in the civil case 37 based on quasi-delict or culpa
aquiliana. (Manliclic v. Calaunan, G.R. No. 150157, [January 25, 2007], 541 PHIL 617-641)
D. Registered Owner Rule
Thus, it is imperative to apply the registered-owner rule in a manner that harmonizes it

with Articles 2176 and 2180 of the Civil Code. Rules must be construed in a manner that
will harmonize them with other rules so as to form a uniform and consistent system of
jurisprudence. In light of this, the words used in Del Carmen are particularly notable.
There, this court stated that Article 2180 "should defer to" the registered-owner rule. It
never stated that Article 2180 should be totally abandoned.
Therefore, the appropriate approach is that in cases where both the registered-owner rule
and Article 2180 apply, the plaintiff must first establish that the employer is the registered
owner of the vehicle in question. Once the plaintiff successfully proves ownership, there
arises a disputable presumption that the requirements of Article 2180 have been proven.
As a consequence, the burden of proof shifts to the defendant to show that no liability
under Article 2180 has arisen. This disputable presumption, insofar as the registered
owner of the vehicle in relation to the actual driver is concerned, recognizes that between
the owner and the victim, it is the former that should carry the costs of moving forward
with the evidence. The victim is, in many cases, a hapless pedestrian or motorist with
hardly any means to uncover the employment relationship of the owner and the driver,
or any act that the owner may have done in relation to that employment. (Caravan Travel
and Tours International, Inc. v. Abejar, G.R. No. 170631, [February 10, 2016])
IV. STRICT LIABILITY TORT
A. Definition – a tort where the person is made liabile independent of fault or negligence
upon submission of proof of certain facts. The conduct is generally not wrongful in
itself but the wrong consists in causing harm by engaging in certain type of risky
activities.
NOTE: ARTICLE 2176 IS NOT A STRICT LIABILITY TORT
B. ARTICLE 2183
ARTICLE 2183. The possessor of an animal or whoever may make use of the same is
responsible for the damage which it may cause, although it may escape or be lost. This
responsibility shall cease only in case the damage should come from force majeure or
from the fault of the person who has suffered damage.
• Who is liable? The one in possession or whoever may make use of an animal.
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• Defense – force majeure or it he damage is caused by the fault of the plaintiff.

• The provision is applicable whether the animal is domestic, domesticated, or wild,
considering that no distinction was made by the provision (Vestil v. IAC [G.R. No.
74431, November 6, 1989]) (Aquino, pp. 695-696)
• As against a motor vehicle, you can control a motor vehicle as compared to an
animal.
• What are the requisites of possession?
The following are the requisites of possession:
(a) There must be a holding or control (occupancy, or taking or apprehension) of
a thing or a right. (This holding may be actual or constructive.)
(b) There must be a deliberate intention to possess (animus possidendi). This is a
state of the mind.
(c) The possession must be by virtue of one’s own right. (This may be because he
is an owner or because of a right derived from the owner such as that of a tenant.)
(Paras)
Assuming A’s neighbor, B, died due to dengue fever due to mosquitoes coming from
A’s house. Can A be held liable for B’s death?
A cannot be held liable for B’s death, since possession requires: (1) holding or
control, (2) animus possidendi, and (3) holding by virtue of one’s own right. There
is no element of control over mosquitoes, unless the person deliberately collects or
breeds them for scientific, entertainment, or other purpose. The absence of control
precludes the existence of holing it by virtue of one’s right, since he does not take
hold of it in the first place, so to speak. Absent such peculiarity, there can be no
animus possidendi as well.
C. ARTICLE 2187
ARTICLE 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.
• Intent is immaterial
• Limited to natural persons because of the use of the word “noxious” which means
Hurtful; offensive; offensive to the smell
• Ejusdem generis, rat poison.
• The test is to know whether or not the product is unfit for its intended use.
D. ARTICLE 2193
ARTICLE 2193. The head of a family that lives in a building or a part thereof, is
responsible for damages caused by things thrown or falling from the same.
• The head of the family may not be the owner of the building and it may include
the lessee who lives there (De Leon, p. 428). It is enough that he lives in and has
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control over it. The character of his occupancy thereof is immaterial (Sangco, p.
744).
• The obvious purpose of the law in imposing upon the head of the family the
absolute duty to see to it that no harmful things are thrown or fall from the
building where he lives in is to relieve the injured party of the great difficulty of
determining and proving who threw the thing or what caused it to fall, or that
either was due to the fault or negligence of any particular individual. To put the
plaintiff to such burdens would be to either deprive him of his right to recover
damages or make such right illusory; and in the process permit the defendant to
escape responsibility therefor that much easier (Sangco, p. 744).The reason why it
is the head of the family is because under the law, the head is presumed to be the
person to whom the family leans on for financial support. Thus, it is but logical to
claim not from anyone else in the family but from the person who earns and has
both access and control over said earnings.
V. NEGLIGENCE
ARTICLE 1173. The fault or negligence of the obligor consists in the omission of that
diligence which is required by the nature of the obligation and corresponds with the
circumstances of the persons, of the time and of the place. When negligence shows bad
faith, the provisions of articles 1171 and 2201, paragraph 2, shall apply.
If the law or contract does not state the diligence which is to be observed in the
performance, that which is expected of a good father of a family shall be required.
Negligence has been defined as the failure to observe for the protection of the interests of
another person that degree of care, precaution, and vigilance which the circumstances
justly demand, whereby such other person suffers injury.
The standard test in determining whether a person is negligent in doing an act whereby
injury or damage results to the person or property of another is this: could a prudent man,
in the position of the person to whom negligence is attributed, foresee harm to the person
injured as a reasonable consequence of the course actually pursued? If so, the law imposes
a duty on the actor to refrain from that course or to take precautions to guard against its
mischievous results, and the failure to do so constitutes negligence. Reasonable foresight
of harm, followed by the ignoring of the admonition born of this provision, is always
necessary before negligence can be held to exist.
• Before applying the test of negligence, apply first the Test of Duty. The breach of the
general duties whether due to willful intent or to mere inattention, if productive of
injury, give rise to an obligation to indemnify the injured party (Aquino, p. 36).
A. Negligence Per Se
The violation of a statute constitutes negligence, or negligence as a matter of law. The

reason for this rule is that the statute or ordinance becomes the standard of care or
conduct to which the reasonable prudent person is held. Failure to follow the statute
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involved constitutes a breach of the legal duty imposed and fixed by the statute. Since
negligence is a breach of legal duty imposed and fixed by the statute (Aquino, pp. 113-
114).
• The rule on negligence per se must admit qualification that may arise from logical
consequence of facts leading to the mishap. It is not rendered inflexible to deny
relief when in fact there is no causal connection between statutory violation and
injury sustained.
Driving without a proper license is a violation of traffic regulation. Under Article

2185 of the Civil Code, the legal presumption of negligence arises if at the time of
the mishap, a person was violating any traffic regulation. However, in Sanitary
Steam Laundry, Inc. v. Court of Appeals, 27 we held that a causal connection must
exist between the injury received and the violation of the traffic regulation. It must
be proven that the violation of the traffic regulation was the proximate or legal
cause of the injury or that it substantially contributed thereto. Negligence,
consisting in whole or in part, of violation of law, like any other negligence, is
without legal consequence unless it is a contributing cause of the injury. (Tison v.
Spouses Pomasin, G.R. No. 173180, [August 24, 2011], 671 PHIL 686-704)
• Negligence per se does not require foreseeability because mere failure to follow
the statute constitutes a breach of the legal duty imposed and fixed by the statute.
Hence it is a negligence as a matter of law.
ART. 2184. In motor vehicle mishaps, the owner is solidarily liable with its driver, if
the former is solidarily liable with his driver, if the former, who was in the vehicle,
could have, by the use of due diligence, prevented the misfortune. It is disputably
presumed that a driver was negligent, if he had been found guilty of reckless driving
or violating traffic regulations at least twice within the next preceding two months. If
the owner was not in the motor vehicle, the provisions of Article 2180 are applicable.
• What if the owner was outside the vehicle, but beside such vehicle, and the
driver is inside the illegally parked vehicle? Determine the liability of the
owner. Will he recover the whole amount of damages paid by him from the
employee under Art. 2184, par. 2?
Article 2184 will not apply. Thus, what can be applied is the Registered Owner
Rule or the presumption under Art. 2180 where the owner even if he was not in
the vehicle would be liable unless he exercised due diligence to prevent the
damage (De Leon). Solidarity attaches to the owner of the vehicle if while being in
the vehicle, he could have, by use of due diligence, prevented the misfortune.
Thus, despite the seemingly unjust non-applicability of such provision in the case
at bar, due diligence provided on such only refers to the owner who is inside the
motor vehicle. His liability is only in relation to the driver as his employee. YES,
he can recover the whole amount of damages, as stated in Art. 2181 in relation to
Art. 2180.
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• Only motor vehicles are covered in Art. 2184 and 2185. The applicability of the
provision is expressly qualified to motor vehicles, as the framers excluded these
alternative modes from the scope of the same.
Motor vehicles are defined as automotive vehicles not operated on rails especially
one with rubber tires for use on highways (Merriam Webster).
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.
B. MEDICAL MALPRACTICE
a. Requisites of Medical Malpractice Case
There are four essential elements a plaintiff must prove in a malpractice action
based upon the doctrine of informed consent:
(1) the physician had a duty to disclose material risks;

(2) he 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; and
(4) plaintiff was injured by the proposed treatment.
The gravamen in an informed consent case requires the plaintiff to "point to

significant undisclosed information relating to the treatment which would
have altered her decision to undergo it”.
b. Doctrine of Informed Consent (case of Li vs Spouses Soliman)
The doctrine of informed consent evolved into a general principle of law that
a physician has a duty to disclose what a reasonably prudent physician in the
medical community in the exercise of reasonable care would disclose to his
patient as to whatever grave risks of injury might be incurred from a proposed
course of treatment, so that a patient, exercising ordinary care for his own
welfare, and faced with a choice of undergoing the proposed treatment, or
alternative treatment, or none at all, may intelligently exercise his judgment by
reasonably balancing the probable risks against the probable benefits.
c. Historical Evolution (Brion’s Dissenting)
The doctrine of informed consent first appeared in American jurisprudence in

cases involving unconsented surgeries which fit the analytical framework of
traditional battery and it is characterized as a wrong [committed by the
physician] or as a trespass and not as a negligent act (considered as Medical
battery wherein the patient is subjected to an examination or treatment
without express or implied consent. Thus, this battery approach to informed
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consent seeks to protect the patient's physical integrity and personal dignity
from harmful and unwanted contact; in a nature of strict liability tort)
Shift from Medical Battery (Intentional Tort) to the Doctrine of Informed

Consent (Negligence); Shift from the issue of whether the patient gave consent
to whether adequate information was given for the patient to have made an
informed consent; As the century progressed and the practice of medicine
became more sophisticated, courts began to consider whether the patient had
been given sufficient information to give true consent." the courts had shifted
their focus from the issue of whether the patient gave consent, to whether
adequate information was given for the patient to have made an informed
consent. Thus, the quantity of information provided to the patient in making
decisions regarding medical treatment was given greater scrutiny and the
physician's duty to disclose assumed a primary role. In the 1960s, The courts
and commentators began to understand and realize that actions for battery (an
intentional tort) made little sense when couched in negligence terminology.
This is premised on the fact that the failure to disclose to the patient sufficient
information to allow informed consent to the procedure was an action based
in negligence and not on an unconsented touching or battery. The scope of the
physician's duty to disclose and held that the "central information needed in
making an informed consent was a disclosure of the material risks involved in
a medical procedure. The California Supreme Court in Cobbs v. Grant
articulated "the rationale behind abandoning the battery approach to informed
consent in favor of [a] negligence approach." It held that "it was inappropriate
to use intentional tort of battery when the actual wrong was an omission, and
the physician acted without intent to injure the patient."
d. Standards of Disclosure: Professional Disclosure Standard v. Reasonable

Patient Standard
Under the Professional disclosure standard, the question under the standard
is: did the doctor disclose the information that, by established medical practice,
is required to be disclosed? Under this standard, "a patient claiming a breach
of the duty was required to produce expert medical testimony as to what the
standard practice would be in [the medical community in a particular case]
and how the physician deviated from the practice.
On the other hand, the "reasonable patient standard” required the doctor to
disclose all material risks incident to the proposed therapy in order to secure
an informed consent. This new disclosure test is emphasized as "the test for
determining whether a particular peril must be divulged is its materiality to
the patient's decision: all risks potentially affecting the decision must be
unmasked." Under this standard, adequate disclosure "required the physician
to discuss the nature of the proposed treatment, whether it was necessary or
merely elective, the risks, and the available alternatives and their risks and
benefits." The Canterbury court, however, warned that the standard does not
mean "full disclosure" of all known risks.
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e. Two-step process in Determining Materiality
The determination of materiality is a 2-step process.
First step, the scientific nature of the risk must be ascertained, i.e., the nature
of the harm which may result and the probability of its occurrence.
• Expert testimony is necessary to prove the existence of a risk, its likelihood
of occurrence, and the type of harm in question. Once those facts are
shown, expert testimony is unnecessary. Hence, expert testimony is
required for the first step.
Second step, The trier of fact must then decide whether that probability of
that type of harm is a risk which a reasonable patient would consider in
deciding on treatment.
• Second step of this determination of materiality clearly does not require
expert testimony, the first step almost as clearly does. Only a physician (or
other qualified expert) is capable of judging what risks exist and their
likelihood of occurrence. The central reason for requiring physicians to
disclose risks to their patients is that patients are unable to recognize the
risks by themselves. Just as patients require disclosure of risks by their
physicians to give an informed consent, a trier of fact requires description
of risks by an expert to make an informed decision. Expert testimony is not
required for the second step.
f. The case of Li vs Spouses Soliman
The RTC held that Dr. Li was not liable for damages as she observed the best
known procedures and employed her highest skill and knowledge in the
administration of chemotherapy drugs on Angelica but despite all efforts said
patient died. The Court of Appeals held that while there was no negligence
committed by the petitioner in the administration of chemotherapy treatment
to Angelica, it found that petitioner as her attending physician failed to fully
explain to the respondents all the known side effects of chemotherapy. The
Supreme Court held that there was an absence of the First Requisite. The
private respondents were not able to prove such duty or a standard of
disclosure. Furthermore, the Supreme Court held that “there was an adequate
disclosure” on the part of Dr. Li. According to the Court, the claim of the
Spouses as to the shortlist of risks attendant to a chemotherapy treatment
cannot be given credence because there was a reasonable expectation on the
part of the Spouses.
• SYNTHESIS: As to the conclusion of adequate disclosure, how did the

Supreme Court reached this conclusion when in the first place, the duty
was not established on the part of the Spouses? In this case, there is a
glaring absence of standard/yardstick in measuring the adequateness of
the disclosure made by Dr. Li but how did the Supreme Court reached the
conclusion that there was an adequate disclosure in the absence of any
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standards? [Author’s opinion; use the logic of Justice Brion in resolving this
question]
Concurring opinion of Justice Brion: the issue in the present case is: Did the
respondents prove by preponderance of evidence all the elements of a
cause of action for medical negligence under the doctrine of informed
consent? I find that the plaintiffs (the present respondents) utterly failed to
establish their cause of action. They failed to establish their claim of lack of
informed consent, particularly on the first and fourth elements.
First Element: Duty to Disclose Material Risks; while I concur with the
results of the ponencia, I find its approach and reasoning in its use of the
standards to be confused. The ponencia claims that "expert testimony must
show the customary standard of care of physicians in the same practice as
that of the defendant doctor," thereby indicating its partiality to the use of
the professional disclosure standard. At the same time, the ponencia felt
"hesitant in defining the scope of mandatory disclosure in cases based on
lack of informed consent, much less set a standard of disclosure," citing
lack of expert testimony in this regard. In plainer terms, it effectively said
that the respondents failed to prove what must be disclosed. Yet, it also
concluded that "there was adequate disclosure of material risks inherent in
the chemotherapy procedure performed with the consent of Angelica's
parents." Dr. Balmaceda's testimony failed to establish the existence of the
risks or side-effects the petitioner should have disclosed to them in the use
of chemotherapy in the treatment of osteosarcoma; the witness, although a
medical doctor, could not have testified as an expert on these points for the
simple reason that she is not an oncologist nor a qualified expert on the
diagnosis and treatment of cancers. At best, Dr. Balmaceda's testimony
only established generally the petitioner's duty to disclose all the known
risks of the proposed treatment and nothing more.
Second Element: Adequacy of Disclosure of Risks; the ponencia

concludes that "there was adequate disclosure of material risks of the
[chemotherapy administered] with the consent of Angelica's parents" in
view of the fact that the petitioner informed the respondents of the side
effects of chemotherapy, such as low white and red blood cell and platelet
count, kidney or heart damage and skin darkening. I cannot agree with this
conclusion because it was made without the requisite premises. As
heretofore discussed, sufficiency of disclosure can be made only after a
determination and assessment of risks have been made. As discussed
above, no evidence exists showing that these premises have been properly
laid and proven. Hence, for lack of basis, no conclusion can be made on
whether sufficient disclosure followed. In other words, the disclosure
cannot be said to be sufficient in the absence of evidence of what, in the
first place, should be disclosed. Even assuming that the ponencia used the
professional disclosure standard in considering the material risks to be
disclosed, the existing evidence still does not support the conclusion
arrived at. The reason again is the respondent's failure to establish a
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baseline to determine adequacy of disclosure; in the case of the

professional disclosure standard, determination of adequacy requires
expert medical testimony on the standard medical practice that prevails in
the community. Thus, it has been held that "[e]xpert testimony is required
in an informed consent case to establish what the practice is in the general
community with respect to disclosure of risks that the defendant physician
allegedly failed to disclose."
Fourth Element: Causation; in addition to the failure to prove the first

element, I also submit that the respondents failed to prove that the
chemotherapy administered by the petitioner proximately caused the
death of Angelica Soliman. In the present case, respondent Lina Soliman's
lay testimony at best only satisfied the first type of causation — that
adequate disclosure by the petitioner of all the side effects of chemotherapy
would have caused them to decline treatment. The respondents in this case
must still show by competent expert testimony that the chemotherapy
administered by the petitioner proximately caused Angelica's death.
Under these terms, Dr. Vergara's expert testimony was clearly incompetent
to prove that the chemotherapy proximately caused Angelica's demise for
two reasons.
CONCLUSION: Thus, in the absence of competent evidence that the

chemotherapy proximately caused Angelica's death, what stands in the
record in this case is the petitioner's uncontroverted and competent
expert testimony that Angelica died of sepsis brought about by the
progression of her osteosarcoma — an aggressive and deadly type of
bone cancer. That the petitioner is a competent expert witness cannot be
questioned since she was properly qualified to be an expert in medical
oncology.
• In concluding this case, the Supreme Court in the main decision did not
resolve the issue of the cause of death of Angelica. If you will answer
this question, what would be your answer? Support your answer with
legal basis. In the absence of competent evidence that the
chemotherapy proximately caused Angelica's death, what stands in the
record in this case is the petitioner's uncontroverted and competent
expert testimony that Angelica died of sepsis brought about by the
progression of her osteosarcoma — an aggressive and deadly type of
bone cancer. That the petitioner is a competent expert witness cannot
be questioned since she was properly qualified to be an expert in
medical oncology.
VI. STANDARD OF CONDUCT
a. Ordinary Prudent Man
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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? If not, then he is guilty of negligence (Aquino, p. 47).
• A prudent man is sometimes referred to as the man on the Clapham omnibus in

English law (Aquino, p. 71). He has not the courage of Achilles, the wisdom of
Ulysses or the strength of Hercules nor has he the prophetic vision of a clairvoyant.
He will not anticipate folly in all its forms, but he never puts out of consideration
the teachings of experience and so will guard against the negligence of others
when experience shows such negligence to be common. He is a reasonable man
but he is neither a perfect citizen nor a paragon of circumspection (Aquino, p. 71).
How would you know what that person would do or what the standard of conduct
is if he is imaginary? The basis shall be human experience. In the first place, the
imaginary person was created on such basis, and it is under such premise that we
approximate or estimate who the average person is.
b. Children of Tender Age
• A ten-year old child is expected to be playful and daring. His actuations were
natural to a boy his age. Going back to the facts, it was not only him but the three
of them who jumped into the hole while the remaining boy jumped on the block.
From this, it is clear that he only did what any other ten-year old child would do
in the same situation. (Ylarde v Aquino)
• In the case of Jarco vs Court of Appeals, the Supreme Court held that in our
jurisdiction, a person under nine years of age is conclusively presumed to have
acted without discernment, and is, on that account, exempt from criminal liability.
The same presumption and a like exemption from criminal liability obtains in a
case of a person over nine and under fifteen years of age, unless it is shown that
he has acted with discernment. Since negligence may be a felony and a quasi-delict
and required discernment as a condition of liability, either criminal or civil, a child
under nine years of age is, by analogy, conclusively presumed to be incapable of
negligence; and that the presumption of lack of discernment or incapacity for
negligence in the case of a child over nine but under fifteen years of age is a
rebuttable one, under our law. The rule, therefore, is that a child under nine years
of age must be conclusively presumed incapable of contributory negligence as a
matter of law.
The rule tying the age of discernment in quasi-delict cases to the age of exemption
under the RPC unduly restricts judges to an inflexible rule that changes only
whenever there is an amendment to the law changing the age of exemption from
criminal liability. The rule does not take into consideration the actual level of
maturity and development of the child involved in the particular case. It is
believed that the conclusive presumption that a certain group of children is
incapable of negligence should apply only to children of tender age. Based on
human experience, it is believed that children who are above nine up to 15 may,
in certain cases, be considered as negligent.
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What if the Congress enacted a law with an increased age of criminal

responsibility to twenty-five years or fifty years of age? Is the ruling of Jarco still
a sound doctrine in this case? It is believed that the doctrine of Jarco pertaining to
the age of discernment in quasi-delict cases is still applicable. Although technically
and legally, the Congress may enact amendments changing the age of criminal
responsibility, it should not defeat the rationale or spirit of the Jarco doctrine
pertaining to the incapability of a child of tender age to held liable for negligence.
Since the incapability of committing negligence is premised on the consideration
of the actual level of maturity and development of the child involved in the
particular case, the exemption should not be intertwined with the age that is
imposed by the Congress. [Author’s Opinion]
c. Professionals
• Whether or not a physician has committed an "inexcusable lack of precaution" in

the treatment of his patient is to be determined according to the standard of care
observed by other members of the profession in good standing under similar
circumstances bearing in mind the advanced state of the profession at the time of
treatment or the present state of medical science. In the recent case of Leonila
Garcia-Rueda v. Wilfred L. Pascasio, et al., 27 this Court stated that in accepting a
case, a doctor in effect represents that, having the needed training and skill
possessed by physicians and surgeons practicing in the same field, he will employ
such training, care and skill in the treatment of his patients. He therefore has a
duty to use at least the same level of care that any other reasonably competent
doctor would use to treat a condition under the same circumstances. It is in this
aspect of medical malpractice that expert testimony is essential to establish not
only the standard of care of the profession but also that the physician's conduct in
the treatment and care falls below such standard. (Cruz vs Court of Appeals)
VII. DEGREES OF NEGLIGENCE
a. SIMPLE NEGLIGENCE
The elements of simple negligence: are (1) that there is lack of precaution on the part
of the offender; and (2) that the damage impending to be caused is not immediate or
the danger is not clearly manifest. (Gaid v. People, G.R. No. 171636, [April 7, 2009], 602
PHIL 858-876)
b. GROSS NEGLIGENCE
Gross negligence is one that is characterized by the want of even slight care, acting or
omitting to act in a situation where there is a duty to act, not inadvertently but
willfully and intentionally with a conscious indifference to consequences insofar as
other persons may be affected.
• PAL's aircraft had the right of way at the time of collision, not simply because it
was on the right side of PAC's aircraft, but more significantly, because it was
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"taking off or about to take off." For disregarding PAL's right of way, PAC's pilots
were grossly negligent. (Government Service Insurance System v. Pacific Airways
Corp., G.R. Nos. 170414, 170418 & 170460, [August 25, 2010], 643 PHIL 433-450)
• In the present case, records show that when bus driver Salvaña overtook the
jeepney in front of him, he was rounding a blind curve along a descending road.
Considering the road condition, and that there was only one lane on each side of
the center line for the movement of traffic in opposite directions, it would have
been more prudent for him to confine his bus to its proper place. Having thus
encroached on the opposite lane in the process of overtaking the jeepney, without
ascertaining that it was clear of oncoming traffic that resulted in the collision with
the approaching dump truck driven by deceased Asumbrado, Salvaña was grossly
negligent in driving his bus. He was remiss in his duty to determine that the road
was clear and not to proceed if he could not do so in safety. (Baño v. Bachelor
Express, Inc, G.R. No. 191703, [March 12, 2012], 684 PHIL 12-20)
VIII. PROOF OF NEGLIGENCE
a. PREPONDERANCE OF EVIDENCE
By preponderance of evidence, is meant that the evidence as a whole adduced by one

side is superior to that of the other. It refers to the weight, credit and value of the
aggregate evidence on either side and is usually considered to be synonymous with
the term "greater weight of evidence" or "greater weight of the credible evidence." It is
evidence which is more convincing to the court as worthy of belief than that which is
offered in opposition thereto.
b. RES IPSA LOQUITUR
In some cases where negligence is difficult to prove, the doctrine of res ipsa loquitur
permits an inference of negligence on the part of the defendant or some other person
who is charged with negligence where the thing or transaction speaks for itself. This
doctrine postulates that, as a matter of common knowledge and experience and in the
absence of some explanation by the defendant who is charged with negligence, the
very nature of occurrences may justify an inference of negligence on the part of the
person who controls the instrumentality causing the injury. In other words, res ipsa
loquitur is grounded on the superior logic of ordinary human experience that
negligence may be deduced from the mere occurrence of the accident itself.
The procedural effect of res ipsa loquitur in quasi-delict cases is that the defendant's
negligence is presumed. In other words, the burden of evidence shifts to the defendant
to prove that he did not act with negligence. This doctrine thus effectively furnishes a
bridge by which the complainant, without knowledge of the cause of the injury,
reaches over to the defendant, who knows or should know the cause, for any
explanation of care exercised by him to prevent the injury.
For this doctrine to apply, the complainant must show that:
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(1) the accident is of such character as to warrant an inference that it would not have
happened except for the defendant's negligence;
(2) the accident must have been caused by an agency or instrumentality within the
exclusive management or control of the person charged with the negligence
complained of; and
(3) the accident must not have been due to any voluntary action or contribution on
the part of the person injured.
There exists a fourth requisite under American jurisprudence, that is, that the
defendant fails to offer any explanation tending to show that the injury was caused
by his or her want of due care. In this case, while respondents claimed that Ong
drove cautiously and prudently during the time in question, no evidence was
proffered to substantiate the same. In fact, Ong did not bother to testify to explain
his actuations and to show that he exercised due care when the accident happened,
so even this requisite is fulfilled. (Macalinao v. Ong, G.R. No. 146635, [December
14, 2005], 514 PHIL 127-146)
• The present case satisfies all the elements of res ipsa loquitur. It is very unusual
and extraordinary for the truck to hit an electricity post, an immovable and
stationary object, unless Bautista, who had the exclusive management and control
of the truck, acted with fault or negligence. We cannot also conclude that Meralco
contributed to the injury since it safely and permanently installed the electricity
post beside the street. (Josefa v. Manila Electric Co., G.R. No. 182705, [July 18, 2014])
• In Republic v. Luzon Stevedoring Corp., we imputed vicarious responsibility to

Luzon Stevedoring Corp. whose barge rammed the bridge, also an immovable and
stationary object. In that case, we found it highly unusual for the barge to hit the
bridge which had adequate openings for the passage of water craft unless Luzon
Stevedoring Corp.'s employee had acted with negligence.
• The above requisites are all present in this case. First, no person just walking along
the road would suddenly be sideswiped and run over by an on-rushing vehicle
unless the one in charge of the said vehicle had been negligent. Second, the jeep
which caused the injury was under the exclusive control of Oscar Jr. as its owner.
When Oscar Jr. entrusted the ignition key to Rodrigo, he had the power to instruct
him with regard to the specific restrictions of the jeep's use, including who or who
may not drive it. As he is aware that the jeep may run without the ignition key, he
also has the responsibility to park it safely and securely and to instruct his driver
Rodrigo to observe the same precaution. Lastly, there was no showing that the
death of the victims was due to any voluntary action or contribution on their part.
The aforementioned requisites having been met, there now arises a presumption
of negligence against Oscar Jr. which he could have overcome by evidence that he
exercised due care and diligence in preventing strangers from using his jeep. (Del
Carmen, Jr. v. Bacoy, G.R. No. 173870, [April 25, 2012], 686 PHIL 799-818)
• APPLY THIS DOCTRINE ONLY WHEN THERE IS NO DIRECT PROOF AND

ALL THE REQUISITES PROVIDED ARE PRESENT.
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IX. DEFENSES
a. FORTUITOUS EVENT
Article 1174. Except in cases expressly specified by the law, or when it is otherwise
declared by stipulation, or when the nature of the obligation requires the assumption
of risk, no person shall be responsible for those events which could not be foreseen, or
which, though foreseen, were inevitable.
Jurisprudence defines the elements of a "fortuitous event" as follows: (CIRP)
(a) the cause of the unforeseen and unexpected occurrence must be independent of
human will;
(b) It must be impossible to foresee the event which constitutes the caso fortuito, or if
it can be foreseen, it must be impossible to avoid;
(c) The occurrence must be such as to render it impossible for the debtor to fulfill his
obligation in a normal manner; and
(d) The obligor must be free from any participation in the aggravation of the injury
resulting to the creditor.
In other words, there must be an entire exclusion of human agency from the cause of
injury or loss.
• There is no question that a typhoon or storm is a fortuitous event, a natural
occurrence which may be foreseen but is unavoidable despite any amount of
foresight, diligence or care. In order to be exempt from liability arising from any
adverse consequence engendered thereby, there should have been no human
participation amounting to a negligent act. In other words, the person seeking
exoneration from liability must not be guilty of negligence.
• Human agency must be entirely excluded as the proximate cause or contributory

cause of the injury or loss. In a vehicular accident, for example, a mechanical defect
will not release the defendant from liability if it is shown that the accident could
have been prevented had he properly maintained and taken good care of the
vehicle.
b. ASSUMPTION OF RISK
The doctrine of assumption of risk means that one who voluntarily exposes himself to
an obvious, known and appreciated danger assumes the risk of injury that may result
therefrom. It rests on the fact that the person injured has consented to relieve the
defendant of an obligation of conduct toward him and to take his chance of injury
from a known risk, and whether the former has exercised proper caution or not is
immaterial. In other words, it is based on voluntary consent, express or implied, to
accept danger of a known and appreciated risk; it may sometimes include acceptance
of risk arising from the defendant's negligence, but one does not ordinarily assume
risk of any negligence which he does not know and appreciate.
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As a defense in negligence cases, therefore, the doctrine requires the concurrence of

three elements, namely:
(1) the plaintiff must know that the risk is present;
(2) he must further understand its nature; and
(3) his choice to incur it must be free and voluntary. "Knowledge of the risk is the
watchword of assumption of risk." (Abrogar v. Cosmos Bottling Co., G.R. No. 164749,
[March 15, 2017])
NOTE: A person is excused from the force of the rule, that when he voluntarily assents
to a known danger he must abide by the consequences, 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. Clearly, an emergency was at hand as the deceased's property,
a source of her livelihood, was faced with an impending loss. (Ilocos Norte Electric Co.
v. Court of Appeals, G.R. No. 53401, [November 6, 1989], 258-A PHIL 565-583)
c. EMERGENCY RULE
An actor who is confronted with an emergency is not to be held up to the standard of

conduct normally applied to an individual who is in no such situation. The law takes
stock of impulses of humanity when placed in threatening or dangerous situations
and does not require the same standard of thoughtful and reflective care from persons
confronted by unusual and oftentimes threatening conditions. Under the "emergency
rule" adopted, an individual who suddenly finds himself in a situation of danger and
is required to act without much time to consider the best means that may be adopted
to avoid the impending danger, is not guilty of negligence if he fails to undertake what
subsequently and upon reflection may appear to be a better solution, unless the
emergency was brought by his own negligence.
While the emergency rule applies to those cases in which reflective thought, or the
opportunity to adequately weigh a threatening situation is absent, the conduct which
is required of an individual in such cases is dictated not exclusively by the suddenness
of the event which absolutely negates thoughtful care, but by the over-all nature of the
circumstances. A woman driving a vehicle suddenly crippled by a flat tire on a rainy
night will not be faulted for stopping at a point which is both convenient for her to do
so and which is not a hazard to other motorists. She is not expected to run the entire
boulevard in search for a parking zone or turn on a dark street or alley where she
would likely find no one to help her. It would be hazardous for her not to stop and
assess the emergency (simply because the entire length of Aurora Boulevard is a no-
parking zone) because the hobbling vehicle would be both a threat to her safety and
to other motorists. In the instant case, Valenzuela, upon reaching that portion of
Aurora Boulevard close to A. Lake St., noticed that she had a flat tire. To avoid putting
herself and other motorists in danger, she did what was best under the situation. As
narrated by respondent court: "She stopped at a lighted place where there are people,
to verify whether she had a flat tire and to solicit help if needed. Having been told by
the people present that her rear right tire was flat and that she cannot reach her home
she parked along the sidewalk, about 1 1/2 feet away, behind a Toyota Corona Car."
20 In fact, respondent court noted, Pfc. Felix Ramos, the investigator on the scene of
the accident confirmed that Valenzuela's car was parked very close to the sidewalk.
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21 The sketch which he prepared after the incident showed Valenzuela's car partly
straddling the sidewalk, clear and at a convenient distance from motorists passing the
right lane of Aurora Boulevard. This fact was itself corroborated by the testimony of
witness Rodriguez.
Under the circumstances described, Valenzuela did exercise the standard reasonably
dictated by the emergency and could not be considered to have contributed to the
unfortunate circumstances which eventually led to the amputation of one of her lower
extremities. The emergency which led her to park her car on a sidewalk in Aurora
Boulevard was not of her own making, and it was evident that she had taken all
reasonable precautions. (Valenzuela v. Court of Appeals, G.R. Nos. 115024 & 117944,
[February 7, 1996], 323 PHIL 374-402)
d. DUE DILIGENCE
Generally, 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 (culpa in
eligiendo) or in the supervision over him after the selection (culpa vigilando), or both.
The presumption is juris tantum and not juris et de jure; consequently, it may be
rebutted. Accordingly, the general rule is that if the employer shows to the satisfaction
of the court that in the selection and supervision of his employee he has exercised the
care and diligence of a good father of a family, the presumption is overcome and he is
relieved of liability. 32 However, with the enactment of the motor vehicle registration
law, the defenses available under Article 2180 of the Civil Code — that the employee
acts beyond the scope of his assigned task or that it exercised the due diligence of a
good father of a family to prevent damage — are no longer available to the registered
owner of the motor vehicle, because the motor vehicle registration law, to a certain
extent, modified Article 2180. 33||| (Mendoza v. Spouses Gomez, G.R. No. 160110,
[June 18, 2014], 736 PHIL 460-487)
e. PRESCRIPTION
Art. 1146. The following actions must be instituted within four years: (1) Upon an
injury to the rights of the plaintiff; (2) Upon a quasi-delict;
Including those under the Civil Code (quasi-delict chapter).
• The action for damages instituted by private respondent arising from the quasi-
delict or alleged "tortious interference" should be filed within four (4) years from
the day the cause of action accrued. In the case of Español vs. Chairman, Philippine
Veterans Administration, this Court ruled that it is from the date of the act or
omission violative of the right of a party when the cause of action arises and it is
from this date that the prescriptive period must be reckoned. (Allied Banking Corp.
v. Court of Appeals, G.R. No. 85868, [October 13, 1989], 258-A PHIL 306-316)
Relations Back Doctrine
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TORTS & DAMAGES
• That principle of law by which an act done at one time is considered by a fiction
of law to have been done at some antecedent period. It is a doctrine which,
although of equitable origin, has a well recognized application to proceedings at
law; a legal fiction invented to promote the ends of justice or to prevent injustice
end the occurrence of injuries where otherwise there would be no remedy. The
doctrine, when invoked, must have connection with actual fact, must be based on
some antecedent lawful rights. It has also been referred to as "the doctrine of
relation back." (2 CJS 1310). (Allied Banking Corp. v. Court of Appeals, G.R. No.
85868, [October 13, 1989], 258-A PHIL 306-316)
Application of the Doctrine in our Jurisdiction
• According to AQUINO (Torts and Damages [2016 ed.]), although the Supreme
Court did not apply the doctrine in the case of Allied Banking Corp. v Court of
Appeals, it should be noted that the Supreme Court did not totally reject the
application of the doctrine. It did not rule that it is inapplicable in our jurisdiction.
It is believed that the same may be applied under certain exceptional
circumstances.
• The doctrine should be applied where the injury was discovered long after the
accident. The offended party should not be prejudiced in such case and the
prescriptive period should commence to run upon the discover of the injury.
• Circumstance: The effect of the negligent act is latent and may become apparent
only after quite some time. Thus, if the injury becomes apparent only after several
years, the prescriptive period should commence to run only after discover.
• In this doctrine, something is being “related back”. What is it? the filing of the
action after the expiration of the prescriptive period should, by fiction of law, be
considered as having been filed within said period.
A blood transfusion was administered to a person on September 2019 but he did

not know the the blood contains HIV. After five years (September 2024), the
effect of HIV started to become apparent to the person. How would you apply
the Doctrine of Relations Back in this situation. In this situation, since the effect
of the transfusion of the blood containing HIV becomes apparent only on
September 2024, then the prescriptive period should commence from that period
and not when the negligent act was committed (transfusion of blood).
f. DOCTRINE OF CONTRIBUTORY NEGLIGENCE
Article 2179. When the plaintiff's 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 defendant's
lack of due care, the plaintiff may recover damages, but the courts shall mitigate the
damages to be awarded. (n)
• The contributory negligence rule in common law is different from the concept of
contributory negligence under the New Civil Code. Under the common law
doctrine of contributory negligence, the negligence of the defendant, which
contributes to his injury, completely bars recovery. On the other hand, the doctrine
24
TORTS & DAMAGES
of comparative negligence (as known in common law) does not completely bar
recovery but merely mitigates the same.
• If the master is injured by the negligence of a third person and by the concurring
contributory negligence of his own servant or agent, the latter's negligence is
imputed to his superior and will defeat the superior's action against the third
person, assuming of course that the contributory negligence was the proximate
cause of the injury of which complaint is made. (Ramos v. C.O.L. Realty Corp., G.R.
No. 184905, [August 28, 2009], 614 PHIL 169-178)
• Where it is shown that the death of the deceased was primarily caused by his own
negligence, the company could not be held guilty of negligence or as lacking in
due diligence. To hold the latter liable in damages for the death of the deceased,
such supposed negligence of the company must have been the proximate and
principal cause of the accident. But in the case at bar, the act of the deceased in
turning around and swinging the galvanized iron sheet with his hands was the
proximate and principal cause of the electrocution, therefore his heirs cannot
recover. (Manila Electric Co. v. Remonquillo, G.R. No. L-8328, [May 18, 1956], 99 PHIL
117-126)
DOCTRINE OF LAST CLEAR CHANCE
The doctrine, in essence, is to the effect that where both parties are negligent, but the
negligent act of one is appreciably later in time than that of the other, or when it is
impossible to determine whose fault or negligence should be attributed to the
incident, the one who had the last clear opportunity to avoid the impending harm and
failed to do so is chargeable with the consequences thereof (see Picart vs. Smith, 37
Phil. 809). Stated differently, the rule would also mean that an antecedent negligence
of a person does not preclude the recovery of damages for the supervening negligence
of, or bar a defense against liability sought by, another if the latter, who had the last
fair chance, could have avoided the impending harm by the exercise of due diligence
(LBC Air Cargo, Inc. v. Court of Appeals, G.R. No. 101683, [February 23, 1995], 311 PHIL
717-723)
• The last clear chance doctrine of the common law was imported into our
jurisdiction by Picart vs. Smith 11 but it is a matter for debate whether, or to what
extent, it has found its way into the Civil Code of the Philippines. The historical
function of that doctrine in the common law was to mitigate the harshness of
another common law doctrine or rule — that of contributory negligence. 12 The
common law rule of contributory negligence prevented any recovery at all by a
plaintiff who was also negligent, even if the plaintiff's negligence was relatively
minor as compared with the wrongful act or omission of the defendant. 13 The
common law notion of last clear chance permitted courts to grant recovery to a
plaintiff who had also been negligent provided that the defendant had the last
clear chance to avoid the casualty and failed to do so. 14 Accordingly, it is difficult
to see what role, if any, the common law last clear chance doctrine has to play in a
jurisdiction where the common law concept of contributory negligence as an
25
TORTS & DAMAGES
absolute bar to recovery by the plaintiff, has itself been rejected, as it has been in
Article 2179 of the Civil Code of the Philippines.
• Is there perhaps a general concept of "last clear chance" that may be extracted from
its common law matrix and utilized as a general rule in negligence cases in a civil
law jurisdiction like ours? We do not believe so. Under Article 2179, the task of a
court, in technical terms, is to determine whose negligence — the plaintiff's or the
defendant's — was the legal or proximate cause of the injury. That task is not
simply or even primarily an exercise in chronology or physics, as the petitioners
seem to imply by the use of terms like "last" or "intervening" or "immediate." The
relative location in the continuum of time of the plaintiff's and the defendant's
negligent acts or omissions, is only one of the relevant factors that may be taken
into account. Of more fundamental importance are the nature of the negligent act
or omission of each party and the character and gravity of the risks created by such
act or omission for the rest of the community. The petitioners urge that the truck
driver (and therefore his employer) should be absolved from responsibility for his
own prior negligence because the unfortunate plaintiff failed to act with that
increased diligence which had become necessary to avoid the peril precisely
created by the truck driver's own wrongful act or omission. To accept this
proposition is to come too close to wiping out the fundamental principle of law
that a man must respond for the foreseeable consequences of his own negligent
act or omission. Our law on quasi-delicts seeks to reduce the risks and burdens of
living in society and to allocate them among the members of society. To accept the
petitioners' proposition must tend to weaken the very bonds of society. (Phoenix
Construction, Inc. v. Intermediate Appellate Court, G.R. No. L-65295, [March 10, 1987],
232 PHIL 327-342)
Doctrine of Attractive Nuisance (footnote definition
Definition
One who maintains on his premises dangerous instrumentalities or appliances of a
character likely to attract children in play, and who fails to exercise ordinary care to
prevent children from playing therewith or resorting thereto, is liable to a child of
tender years who is injured thereby, even if the child is technically a trespasser in the
premises.
Rationale
The principal reason for the doctrine is that the condition or appliance in question
although its danger is apparent to those of age, is so enticing or alluring to children of
tender years as to induce them to approach, get on or use it, and this attractiveness is
an implied invitation to such children. (Hidalgo Enterprises, Inc. v. Balandan, et al.,
488, 490 [1952]; (Jarco Marketing Corp. v. Court of Appeals, G.R. No. 129792,
[December 21, 1999], 378 PHIL 991-1008)
Ylarde v. Aquino, G.R. No. L-33722, [July 29, 1988], 246 PHIL 691-701;
From a review of the record of this case, it is very clear that private respondent Aquino
acted with fault and gross negligence when he: (1) failed to avail himself of services of
26
TORTS & DAMAGES
adult manual laborers and instead utilized his pupils aged ten to eleven to make an
excavation near the one-ton concrete stone which he knew to be a very hazardous task;
(2) required the children to remain inside the pit even after they had finished digging,
knowing that the huge block was lying nearby and could be easily pushed or kicked
aside by any pupil who by chance may go to the perilous area; (3) ordered them to
level the soil around the excavation when it was so apparent that the huge stone was
at the brink of falling; (4) went to a place where he would not be able to check on the
children's safety; and (5) left the children close to the excavation, an obviously
attractive nuisance. In the case at bar, the negligent act of private respondent Aquino
in leaving his pupils in such a dangerous site has a direct causal connection to the
death of the child Ylarde. Left by themselves, it was but natural for the children to
play around. Tired from the strenuous digging, they just had to amuse themselves
with whatever they found. Driven by their playful and adventurous instincts and not
knowing the risk they were facing, three of them jumped into the hole while the other
one jumped on the stone. Since the stone was so heavy and the soil was loose from the
digging, it was also a natural consequence that the stone would fall into the hole beside
it, causing injury on the unfortunate child caught by its heavy weight. Everything that
occurred was the natural and probable effect of the negligent acts of private
respondent Aquino. Needless to say, the child Ylarde would not have died were it not
for the unsafe situation created by private respondent Aquino which exposed the lives
of all the pupils concerned to real danger.
The doctrine is not applicable to swimming pool or water tank; The attractive nuisance
doctrine generally is not applicable to bodies of water, artificial as well as natural, in
the absence of some unusual condition or artificial feature other than the mere water
and its location. (Hidalgo Enterprises, Inc. v. Balandan, G.R. No. L-3422, [June 13,
1952], 91 PHIL 488-492)
Torpedo Doctrine and Turntable Doctrine
Concept
Torpedo doctrine or popularly known as attractive-nuisance doctrine is a principle of

torts law that any person who owns property on which there is a dangerous thing or
condition that is likely to lure children to trespass has a duty to protect those children
from the danger.
The doctrine states that a possessor of land is subject to liability for physical harm to
children trespassing thereon caused by an artificial condition upon land if: (a) the
place where the condition exists is one upon which the possessor knows or has reason
to know that children are likely to trespass, and (b) the condition is one of which the
possessor knows or has reason to know and which he realizes or should realize will
involve an unreasonable risk of death or serious bodily harm to such children, and (c)
the children because of their youth do not discover the condition or realize the risk
involved in intermeddling with it or in coming within the area made dangerous by it,
and (d) the utility to the possessor of maintaining the condition and the burden of
eliminating the danger are slight as compared with the risk to children involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise
27
TORTS & DAMAGES
to protect the children. [Sutton v. Wheeling & Lake Erie R.R., 2005 Ohio 6912 (Ohio
Ct. App., Summit County Dec. 28, 2005)
Turntable 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 may be attracted and may be injured thereby, although
the owner is guilty of no negligence except in maintaining the property in such
condition that children may trespass thereon to their harm. They are called turntable
because many such cases have arisen in connection with railroad turntables.
Rationale
Children here are actuated by similar childish instincts and impulses. Drawn by
curiosity and impelled by the restless spirit of youth, boys here as well as there will
usually be found wherever the public permitted to congregate. The movement of
machinery, and indeed anything which arouses the attention of the young and
inquiring mind, will draw them to the neighborhood as inevitably as does the magnet
draw the iron which comes within the range of its magnetic influence. The owners of
premises, therefore, whereon things attractive to children are exposed, or upon which
the public are expressively or impliedly permitted to enter to or upon which the owner
knows or ought to know children are likely to roam about for pastime and in play,
"must calculate upon this, and take precautions accordingly." In such cases the owner
of the premises can not 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. The owner's failure to take reasonable precautions to
prevent the child form entering premises at a place where he knows or ought to know
that children are accustomed to roam about or to which their childish instincts and
impulses are likely to attract them is at least equivalent to an implied license to enter,
and where the child does not enter under such conditions the owner's failure to make
reasonable precaution to guard the child against the injury from unknown or unseen
dangers, placed upon such premises by the owner, is clearly a breach of duty, a
negligent omission, for which he may and should be held responsible, if the child is
actually injured, without other fault on its part than that it had entered on the premises
of a stranger without his express invitation or permission. To hold otherwise would
be expose to all the children in the community to unknown perils and unnecessary
danger at the whim of the owners or occupants of land upon which they might
naturally and reasonably be expected to enter.||| (Taylor v. Manila Electric Railroad
and Light Co., G.R. No. 4977, [March 22, 1910], 16 PHIL 8-30)
NOTE: The Supreme Court held in Taylor vs Railroad that the Turntable and Torpedo
doctrines are applicable in our Jurisdiction. These terms are interchangeable with the
Doctrine of Attractive Nuisance. In Taylor vs. M. E. R. & L. Co., in the course of an
extended reference to American case law, the doctrine of the so-called "Turntable" and
"Torpedo" cases was adopted by this court as a factor in determining the question of
liability for damages in such cases as the one the court then had under consideration.
(Algarra v. Sandejas, G.R. No. 8385, [March 24, 1914], 27 PHIL 284-310)
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TORTS & DAMAGES

Victor Kenner S. Galang

TORTS AND DAMAGES

II. PRELIMINARY CONSIDERATIONS

a. TORTS & QUASI DELICTS

ARTICLE 1156. An obligation is a juridical necessity to give, to do or not to do.

ARTICLE 1157. Obligations arise from:

• An active subject who has the power to demand a prestations; (Tortfeasor)

• A passive subject who is obliged; (Victim)

• An object or prestations constituting of an activity which must be observed

SECTION 2. Cause of Action. — A cause of action is the act or omission by which a

e. Article 2176 is not an all-encompassing enumeration of all actionable wrongs which

Source of liability: LAW

PRINCIPLE OF ABUSE OF RIGHTS AND THE REMEDIES (ARTICLE 19)

Thus, with respect to negligent acts or omissions, it should therefore be

CONTRA BONUS MORES

III. QUASI DELICT

1. There must be an act or omission;

2. Such act or omission causes damage to another (damnum et injuria);

3. Such act or commission is caused by fault or negligence; and

• Existence of a contractual relation

General rule – there must be no pre-existing contractual relationship between the

TEST: Where, without a pre-existing contract between two parties, an act or

The jural concept of a quasi-delict is that of an independent source of obligation "not

D. Registered Owner Rule

Thus, it is imperative to apply the registered-owner rule in a manner that harmonizes it

IV. STRICT LIABILITY TORT

NOTE: ARTICLE 2176 IS NOT A STRICT LIABILITY TORT

• Defense – force majeure or it he damage is caused by the fault of the plaintiff.

The violation of a statute constitutes negligence, or negligence as a matter of law. The

Driving without a proper license is a violation of traffic regulation. Under Article

a. Requisites of Medical Malpractice Case

(1) the physician had a duty to disclose material risks;

The gravamen in an informed consent case requires the plaintiff to "point to

b. Doctrine of Informed Consent (case of Li vs Spouses Soliman)

c. Historical Evolution (Brion’s Dissenting)

The doctrine of informed consent first appeared in American jurisprudence in

Shift from Medical Battery (Intentional Tort) to the Doctrine of Informed

d. Standards of Disclosure: Professional Disclosure Standard v. Reasonable

e. Two-step process in Determining Materiality

The determination of materiality is a 2-step process.

f. The case of Li vs Spouses Soliman

• SYNTHESIS: As to the conclusion of adequate disclosure, how did the

Second Element: Adequacy of Disclosure of Risks; the ponencia

baseline to determine adequacy of disclosure; in the case of the

Fourth Element: Causation; in addition to the failure to prove the first

CONCLUSION: Thus, in the absence of competent evidence that the

VI. STANDARD OF CONDUCT

a. Ordinary Prudent Man

• A prudent man is sometimes referred to as the man on the Clapham omnibus in

b. Children of Tender Age

What if the Congress enacted a law with an increased age of criminal

• Whether or not a physician has committed an "inexcusable lack of precaution" in

VII. DEGREES OF NEGLIGENCE

VIII. PROOF OF NEGLIGENCE

By preponderance of evidence, is meant that the evidence as a whole adduced by one

b. RES IPSA LOQUITUR

For this doctrine to apply, the complainant must show that:

• In Republic v. Luzon Stevedoring Corp., we imputed vicarious responsibility to

• APPLY THIS DOCTRINE ONLY WHEN THERE IS NO DIRECT PROOF AND

Jurisprudence defines the elements of a "fortuitous event" as follows: (CIRP)

• Human agency must be entirely excluded as the proximate cause or contributory

As a defense in negligence cases, therefore, the doctrine requires the concurrence of

An actor who is confronted with an emergency is not to be held up to the standard of